(after stating the ease). The defendant-was the plaintiff’s surety for the latters appearance to an *382 .swer a criminal charge against him at a particular term of the Court mentioned. He knew that if he failed to appear in Court as lie was bound to do, and offered no lawful excuse for such failure, his surety, the defendant, would be liable and compelled to pay the State two hundred dollars.

Knowing this, he placed in the hands of the defendant a note upon which was due about one hundred and forty dollars, to indemnify him “ against any loss he might incur by reason of his suretyship.” How indemnify him against loss ? Hid he intend that the defendant should wait until judgment absolute should be entered against him and he was •compelled to pay two hundred dollars and costs, and then apply the money collected upon the note as far as it would •serve the purpose to indemnify? We think not. To say that he did, is not, it seems to us, a fair interpretation of his meaning and purpose. It is more reasonable to say, that he meant and intended that the defendant should collect the note and apply it to the best advantage to prevent liability as far as practicable, that “ he might incur bj^ reason of his said suretyship,” and thus indemnify himself. This is a reasonable and just view of his purpose and one that harmonizes with his duty to the defendant. It is strengthened by the fact that he did not return to the State until months after in the order of such things the judgment against the defendant would have been made absolute and he would have been compelled to pay the same, as well as costs.

The defendant so interpreted and acted upon the plaintiff’s instructions to him as to the application of the note. The compromise he made with the solicitor for the State under the wise advice of the plaintiff’s counsel was fortunate and advantageous for him as well as the defendant. 'The money collected upon the note was faithfully applied for the plaintiff’s benefit — his liability made much less by the compromise — and in effect, as he directed it to be.

*383 The fact that a part of it was applied to pay costs of one of the defendants in the criminal action other than the plaintiff cannot to any extent alter the case — the compromise embraced such application of that much. The plaintiff’s remedy, if he has any as to the money, is against the party for whose benefit it was applied — certainly not against the present defendant.

There is error. The defendant is entitled to a new trial, and we so adjudge. To that end let this opinion be certified to the Superior Court.

Venire de novo.