The opinion of the court was delivered by

If there is any difficulty in maintaining this action by the surety, against the principals upon the jail bond, it arises from the fact that Wing did not apply the money on the jail bond, hut took a judgment for the full sum of the original judgment.

The $175.00 which the surety paid, was, by agreement between him and Wing, to apply as payment, to that extent, on the debt,— and, when the surety had paid that sum, and had obtained from Wing his bond that he should not further call upon the surety, in case he got judgment on the jail bond, he ceased further to defend the action, but left that exclusively with the principals. The principals, before final judgment was rendered against them, were aware the surety had paid the $175.00, and that he had been discharged from further liability, although it is not stated that they knew that it was to be applied as payment pro tanto ; yet this is the proper inference, following from the payment of the money, unless there is enough in the case to show it otherwise. At all events, the defendants knew enough to put them on inquiry, before they permitted the damages to be-assessed for the full amount of the debt. *670It turned out that the plaintiff, as well as the defendants, were legally liable on the jail bond, and the surety might well pay the debt, without any express request from the principals, and go against them for money paid to their use, upon an implied request, growing out of the relation of principal and surety. So far as this plaintiff is concerned, it was as much the duty of the principals upon the bond to see the $175.00 applied upon it, as it was the duty of Wing. Though the damages were assessed for the full amount of the debt, yet it does not appear that Wing has ever-taken out execution, or attempted to enforce the collection of the full amount of the judgment, or has ever refused to make the application of the $175.00 on the judgment. The judgment might be conclusive upon the defendants, at law, yet if Wing should attempt the collection of the whole debt, chancery would relieve against it, by way of injunction, and compel the payment of costs. It would be highly unjust to deny the right of the plaintiff in this case to recover of the principals, and turn him over to a remedy against Wing, if any such he could have, which it is not necessary to inquire.

The result is, the judgment of the county court is affirmed.