I am of opinion that the judge erred in his charge to the jury, concerning the 100 dollars payment; and that the verdict on that point, is, also against the weight of evidence. There is no doubt that Palen was to be interested in the ^judgment to the amount of 100 dollars by way of security, for that sum.advanced by him to More, to pay to Trumpbour. The memorandum sent by Trumpbour to Palen, dated the 30th of October, 1820, and the receipt More endorsed upon it, are conclusive evidence that the advance by Palen was upon the express condition that the judgment should be his security, and that both Trumpbour and More fully assented to it.
If More had paid the 100 dollars to Palen before the sale on the execution, then he is undoubtedly entitled to recover back that amount, with interest from Trumpbour; because he has in fact received 100 dollars more than the amount of the judgment. But he received that excess as the agent, and for the benefit of Palen, to whom he is accountable for it. The money advanced by Palen was, in reality advanced to Trumpbour, and not to More; and did not, nor was it intended by the parties to operate as a payment upon the judgment, until More had settled the amount with Palen. The weight of evidence is very decidedly against the fact of payment to Palen. The testimony of Burhans is conclusive on the point.
New trial granted.