In the view we take of this case, we do not go behind th; judgment recovered by the plaintiff' on the scire *214facias, for any purpose of impeaching the same, or denying its entire validity as a judgment. But when an attempt is made, long after a judgment is obtained, to make it the foundation of a new action and a new judgment, it is always competent to show that such judgment has been paid or discharged ; or that, by reason of subsequent acts, the right to a new judgment is lost, in whole or in part; or that there have arisen equities of such a character as may be shown to affect the same.
The position taken in the defence, and fully conceded by the other party, is, that this action upon the former judgment is in the name of a nominal plaintiff, having no interest in the same, but is really an action instituted by, and wholly for the benefit of Josiah G. Chase. As against Chase, the defendant proposes to show that the foundation of the judgment was originally a joint liability of the defendant and Chase, as co-sureties on a bail bond given for the discharge from arrest of Daniel Gale, and that whatever sum either of the said co-sureties may be obliged' to pay in consequence of such joint liability, the other party will be obliged to refund to him one half thereof. This is shown to be in fact the relation of these parties. A recovery from the defendant of the entire sum to which the plaintiff was entitled, as the creditor of Gale, upon the bail bond thus given, will authorize an action against his co-surety Chase for one half.
It is now a familiar doctrine, that when circuity of action can be avoided, and no injustice arise thereby as to the rights of the parties, this court will allow such claim to be deducted in the original action, and not compel the defendant to resort to another action.
While it is irue, therefore, that no defence could have been maintained by the present defendant as against Kelly, if he were prosecuting the present action, it is no less true that, if the whole interest in the judgment is vested in Chase, and he is seeking the aid of this court to enforce his demand as such assignee of the judgment, it may constitute a good ground for reducing the damages to such amount as is justly due between the parties in interest. As the defendant would be liable, as between himself and Chase, to pay only one half of this judg*215rnent, and Chase would be required to contribute the other half, if a recovery of the whole were allowed against the defendant die court are of opinion that the exceptions must be sustained, and judgment entered in the present suit for one half the sum due on the former judgment.