— Their surety on a bail bond being offered as a witness for the defendants, their attorney, to obviate that objection, “ deposited with the clerk, as his own money, for the benefit of the witness, in case he should be liable on said bond, $100.”
The plaintiff having recovered judgment, the Court on his motion ordered .the sum so deposited “ to be applied toward the satisfaction of the plaintiff’s judgment.”
The surety on the bail bond was not liable, except contingently and collaterally to pay that judgment. The money was not to become the property of that surety, unless ho should be liable on his bond to pay the judgment. It was not deposited to pay that debt, but to render the witness competent, by securing to him the means wherewith to pay his bond without being subjected to any loss. The plaintiffs could not rightfully claim to have that money applied in payment of their debt, until they had shown, that they were entitled to maintain a suit against the surety on the bail bond.
The case of Roberts v. Adams, 9 Greenl. 9, differed much from this case. In that case the money was offered to be deposited by the plaintiff “ for the use of the defendants” to discharge the interest of an indorser of a writ. It was the money of the party against whom a judgment for costs was recovered, and it was deposited to pay those costs.
In this case, the money was not deposited by the debtors, *400or for their use, or for the use of the plaintiffs, or to pay their judgment. Exceptions sustained,
and order rescinded.
Tenney, Rice and Hathaway, J. J., concurred.