This was an action of assumpsit brought to recover money paid by the plaintiff as surety for the defendants' testator.
On the part of the plaintiff it was proved that his intestate executed a bond with the defendant's testator to one Morphis, for $100. He then produced the record of a recovery against them in Chatham Superior Court of Law, in a suit on the said bond, and proved that he had paid and satisfied in full the judgment and costs. He then introduced a witness who testified that while the suit was pending against the plaintiff he (the witness) met the defendant's testator, who informed him that he had been to Chatham court to attend to the said suit; that the plaintiff's intestate was his surety, and that his estate should lose nothing by it.
The defendants relied on a former judgment in favor of their testator in a suit brought against him upon the bond in question, and that the fact that he had paid it before the suit was instituted against his surety. They produced the record of the suit, in which it appeared that it was commenced against both the obligors in the bond, but a nol. pros. entered as to the present plaintiff's intestate; and, upon the trial upon the issues joined with the present defendant's testator, he had a verdict and judgment in his favor. The defendants then introduced a (119) witness who proved the payment of the bond by their testator before the institution of any suit on the bond. This witness also proved that when the bond was paid, the holder did not have it with him, but promised to deliver it up to the maker to be canceled, in a short time. This he failed to do, but afterward, and long after the bond was due, indorsed it to the person who brought the suits above mentioned upon it. The defendants' testator died before the institution of the suit against the present plaintiff.
The plaintiff contended that upon showing that his intestate was the surety of the defendants' testator, and that the money was received from him in a suit on the bond which he had executed as surety, without any collusion on his part, he was entitled to recover what he had thus paid; but, at all events, he was *Page 95 entitled to recover if the defendants' testator undertook the management of the suit against the present plaintiff, and managed it so negligently and unskillfully that a recovery was had against him. The defendants contended that their testator was entirely discharged from any responsibility to his surety, by paying the debt, and showing that in the suit on the bond he had a verdict and judgment in his favor; and that there was nothing in the plaintiff's testimony to waive that responsibility. They also contended that the entry of nol. pros. as to the plaintiff's intestate in the first suit on the bond was equivalent to a retraxit, and that the plaintiff in that suit was thereby relieved from any further action against him.
The court instructed the jury that the payment of the bond by the defendants' testator, and the verdict and judgment in his favor in a suit against him upon the bond, was a complete defense against the claim of the plaintiff, though a recovery was afterwards had against him as surety of the said testator; but that if the jury believed that the testator had (120) undertaken the defense of the suit against his surety, and conducted it so negligently and unskillfully that a recovery was had against the surety, then he was responsible for the money so recovered of and paid by his surety, and that his death before the termination of such suit made no difference. The court was also of opinion that the nol. pros. in the first suit on the bond as to the plaintiff's intestate made no difference.
The plaintiff had a verdict. The defendants moved for a new trial for misdirection to the jury. The motion was overruled. Judgment was given upon the verdict, and the defendants appealed. The only points presented by the case for our review are the opinions expressed by his Honor below, as to the character and effect of the nonsuit entered as to the intestate Crawford in the original suit on the note against Glass and himself, and the portion of the charge relating to the management of the suit in Chatham against Crawford. We concur with his Honor as to the first; the entering the nonsuit, as set forth, was noretraxit. Tidd Pr., 175. 1 Strange, 439. As to the other point, we do not agree with him. The charge is, "that if the jury believed that the testator, Glass, had undertaken the defense of the suit against his surety, and conducted it so negligently and unskillfully that a recovery was had against the *Page 96 surety, then he would be answerable for the money so recovered of and paid by his surety, and that his death before the termination of the suit made no difference." There was no evidence of an agency to go to the jury. The declaration of Glass, as stated in the case, was that he had been to Chatham to (121) attend to the suit against Crawford. Every witness who goes to court to give his testimony in a case goes to attend on that suit; and his compensation is, by the law, designated to be for his attendance at court. But if there was evidence to show that Glass had undertaken the defense of the suit, there was none to show any negligence in the management of it by him; and, surely, none which took place after his death could affect him. When it was his declaration was made, at what stage of the case, whether at the return term or a subsequent one, we are not informed. He died before the termination of the suit. If he had lived until the trial, no doubt the evidence of his payment of the debt for which Crawford was his surety would have been before the jury. This is satisfactorily shown by his declaration that Crawford was his surety and his estate should not suffer.
PER CURIAM. Judgment reversed, and a venire de novo awarded.