delivered the opinion of the court, October 6th, 1884.
The plaintiffs and one George Stover jointly and severally *210executed the promissory note on which suit was brought against all the makers, and judgment was recovered thereon. The defendants became bail for stay of execution, and entered into recognizance conditioned that they would pay the judgment, in the event the defendants therein failed to pay the same. After the term of stay had expired, two of the defendants in the judgment, who are the present equitable plaintiffs, paid the same and now seek to collect the amount thereof out of the sureties on their recognizance. The court correctly instructed the jury to find for th.e defendants. They had no knowledge of the relation which the defendants in the original judgment bore to each other. When they entered into the recognizance they did not know that the present plaintiffs yere sureties. They therefore assumed the obligation, relying on the credit of all the defendants in that judgment. As all of those defendants did not fail to pay the judgment, those who did pay the same, cannot now collect i.he amount thereof of the present defendants on their recognizance.
The fact that the judgment was not paid until after the expiration of the stay of execution does not change the rights of the defendants therein. A payment, at any time, by them, operated as a discharge of the contingent liability of those bound by the recognizance.
Judgment affirmed.