71 U.S. 186

ERROR to the District Court of the United States for the Western District of Texas.

Allsbury had become bound as surety in the official bond of Dashiel, paymaster. Suit having been brought on this bond against Dashiel, and Paschall, one of the sureties, to recover what the United States alleged was due, to wit, $20,085, a defence was set up to part of the claim; and the defence being sustained by the court below, the United States had verdict and judgment for but $10,318.22. Error was taken to that judgment, and the judgment reversed. The case next preceding gives report of the matter.

The present suit was brought on the same official bond of Dashiel, against the personal representatives of Allsbury, another of the sureties. The case came on for trial after the trial, verdict, and judgment, just mentioned, against the principal, and Paschall, the other surety, for $10,318.22.

The judgment was pleaded puis darrein continuance, in this suit, for the purpose of reducing the recovery to that amount.

It was admitted by the court, and instructions given accordingly, and the jury found a verdict for the above sum.

The correctness of what was thus done was the question now here.

Mr. Stanbery, A. G., submitted the case in behalf of the United States. Mr. Paschall, contra.

Mr. Justice NELSON delivered the opinion of the court.

It is unnecessary to refer to authorities to show that the liability of the surety cannot exceed that of his principal; and that amount having been fixed by a judgment at law, it formed the rule to determine the sum to be recovered in this suit. The verdict and judgment were competent evidence on behalf of the surety for this purpose; indeed, the highest evidence of the fact. Other questions would have arisen if this judgment had been offered against the surety. The counsel for the government, if desirous of recovering a greater amount, should have postponed the trial of this case till the error had been corrected which was committed in the case against the principal. Then he would have been in a situation to avoid the effect of the erroneous judgment. This is the only question presented on the record.