The opinion of the court was delivered by

The statute incorporating the bank provides that “ the bills of the bank shall at all times be received by the bank, on all judgments, executions, or demands of any nature whatsoever, originally due or accruing to the bank, or which may be their property at the time of payment.”

It seems the bank have collected or secured to themselves the amount of the debt, now sued for, out of the town of Bennington, by reason of the default of the constable who had the execution to collect, and for whose default the town by statute are made liable. The town have sued the bail of the constable, and the bail have settled the debt with the town. The case finds that the present suit was commenced by the bail of the constable for their own use, and with the consent of the bank.

The bail of the constable having paid the debt to the town, and the town to the bank, they are entitled to be subrogated in chancery to all the rights of the bank, equally as they would have been, if they had paid the debt directly to the bank; and the rights of the parties are, in fact, now the same, as if there had been an order of subrogation in a court of chancery. What then are the rights of the defendants in regard to the payment of the debt in bills issued by the bank of Bennington 1 The debt was due to the bank upon paper discounted by them, and no one can contest the point, that the defendants had the right to pay the debt to the bank in their own bills, so long as they had an interest in it. This is both within the letter and spirit of .the statute.

*364Though we are disposed to consider the bail of the constable as equitable assignees, and as in effect subrogated to the rights of the bank, yet they can have no greater rights than the bank themselves had. So far then as the debt is concerned, inasmuch as that accrued to the bank, the defendants must have the same right to pay it in bills of the bank, as against the equitable assignees, as they would .have had against the bank themselves. The equity of the statute manifestly requires this. But how does the case stand relative to the costs which have accrued in this suit 1 These have been incurred by the bail of the constable while standing in the light of an assignee of the bank, and prosecuting this claim for their own benefit. They are severable in their amount from the debt, and they never in fact accrued, or belonged, to the bank.

The bank never had a claim to receive them. To hold that these costs should be paid to the assignee in bills of little or no value does injustice, and is not required by the equity of the statute, and I think not by the letter. To require the costs to be paid in good money is no hardship upon the defendants.

They had notice that the bail of the constable was prosecuting this claim for their own benefit, and it was their duty to have paid the debt before the costs had been made, if they wished to avail themselves of the benefit of the charter to pay in bills of the bank.

The result is, the judgment of the county court is reversed, and ■judgment is rendered ■ for the plaintiff, for damages assessed to the amount of the costs, which we understand were taxed at $67,23.