Opinion by

It must be constantly borne in mind that this is an action only on the official bond given by George A. Jessup for the faithful performance of his duties as cashier of the Scranton City Bank. The penal sum of the bond was $25,000, and the action is brought against the cashier and his sureties. The bank having made an assignment for the benefit of creditors to the present plaintiff, he brings this action to recover six items of alleged loss to the bank by reason of the defalcations or other misconduct of the cashier while he was filling the office. The amount alleged to be thus lost to the bank is some $7,000 or $8,000, which with interest added would amount at the time of the trial to something over $13,000. The defense set up by the sureties is, that they, in their capacity as bondsmen upon this bond, paid money to the assignee or money that was received by him, to an amount greater than the whole penalty of the bond in discharge of their obligation as such bondsmen, and therefore there can be no further recovery against them, no matter what may be the amount or character of the defaults of the treasurer. If this defense was true as a fact the plaintiff could not recover. On the trial the substantial controversy *235turned upon the question whether the defense was true as a matter of fact, and the learned court below, after a very careful explanation of the issue and the matters in controversy to the jury, left to them the decision of the question. The final instruction to the jury was in these words: “Well, gentlemen, you will inquire and decide in the first place, whether the bond of twenty-five thousand dollars, upon which these defendants are liable, has been paid by money contributed by them, or any of them, that found its way into the hands of the assignee and that was intended by the parties to go on the debt represented by this bond, and if you find that it has thus been paid, then you will find a verdict for the defendants. If you find that the bond has not been paid then you can inquire whether it has been paid in part; for instance, if the whole has not been paid, but a part of the bond has been paid, then the bond stands good for as much as is unpaid, and if that amount is less than what the plaintiff has proved here that he is entitled to under the bond, you will find in favor of the plaintiff only as much as he is entitled to. But if you find that the bond has not been paid, then you will inquire whether the plaintiff has made out his claim in whole or in part.”

It was fully shown on the trial that the several persons who were bondsmen had, in point of fact, paid money to a much larger amount than $25,000, and it was also shown that the whole amount of the money thus paid came to the assignee. But there were some complications, and some questions that were developed by the testimony growing out of the fact that much larger and other sums were paid which also came- to the assignee, and in which payments other persons than these bondsmen participated. The cashier had subjected himself to a criminal liability by his transactions in conducting the affairs of the bank, and an indictment was found against him for those criminal acts. In order to avoid the consequences of these criminal acts a large amount of money was raised by friends of the cashier, and by realizing sales of certain coal options which he held and turned over to two trustees to act for him. It was claimed by the defendants that the total of the sum raised and paid over to the assignee was about $144,000, and it was claimed by the plaintiff that the total shortage account of the cashier was $168,000. A great deal of testimony was taken in the *236development of the various contentions of the parties upon these subjects, and especially upon the point whether the moneys paid by those persons who had signed the cashier’s bond as sureties were really paid in discharge of their obligations as bondsmen. The allegation that the total shortage of the cashier was $168,000 is denied absolutely by the defendants, and it was fully testified on the trial that it was never claimed to be more than $145,000 at the outside, and that when inquiry was made of the assignee as to what was the total amount he replied that it was $136,000. It was also testified that the money that was raised and paid by the defendants was raised for the purpose of paying off and discharging the entire indebtedness of George A. Jessup to the bank. While it does not appear that there was any specific appropriation of any particular payments made by the bondsmen, it did appear very clearly that the payments they did make were largely in excess of the whole penalty of the bond, and the payments being actually applied to the extinguishment of George A. Jessup’s indebtedness to the bank, we think the learned court below was entirely right in submitting the question whether the bond had been paid or not to the jury for their decision. It is not necessary to review the testimony in detail nor to dwell upon its various aspects. It certainly did raise the question of actual payment of the whole amount which could in any event be claimed under the bond, and the jury has decided that question in favor of the defendants. This verdict was satisfactory to the learned judge who tried the case, and it is satisfactory to us. The case was twice tried, and the first verdict being against the defendants was set aside by Judge McPherson who presided at the trial, because he regarded it as against the weight of the evidence. After a careful examination of the testimony we are of opinion that the verdict on the last trial was just and proper. We do not think that there is any error on the part of the court in the matters covered by the several assignments, and they are therefore dismissed.

Judgment affirmed.