delivered the opinion of the court.
This suit is brought on a promissory note, made in solido, by Beauchamp & Co. and Timothy Dunn and Beverly Dunn.
The cause was submitted to a jury, who found for the plaintiffs a sum much less than was claimed by them, and judgment being rendered in pursuance of the verdict, they appealed.
The defence set up in the answer, rests on allegations that the note in question, although absolute in its form, as a contract in solido, was really given to secure the plaintiffs for advances of money and other things which they had agreed to make to Beauchamp & Co., and that the Dunns were in truth only bound as sureties for their co-obligors. These allegations appear to be supported by the evidence, and the cause was tried on items of charges made by the plaintiffs against the company. Amongst these charges is one of eighteen hundred dollars, which appears to have been transferred from the individual account of one Bostwick, which they had against him, before he entered into partnership with Beauchamp. Whether they had a right to make this transfer, so as to bind the promisers and their sureties, the evidence of the case seems doubtful. From the whole testi-mony taken together, the jury may have fairly concluded that the plaintiffs were not properly authorized to make this charge in their account. The verdict shows, that it was deducted, and also some payments proven to have been made the principals in the obligation. The conclusions of the . . _ ,. . . . . jury rests on matters or fact, and the testimony in our opinion, is not so opposed to the verdict as to require any change in the judgment of the court below.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.
This opinion was given in June, 1836, and a rehearing granted.