¶1On Petition for a Rehearing.
¶2Counsel for appellee, in support of the petition for a rehearing, insist there is evidence in the record tending to prove that when Carter paid the judgment he paid it with money that belonged to Dalrymple, the principal in the bond; that Woods was Dalrymple’s attorney and guardian and had in his possession nearly three hundred dollars of Dalrymple’s money and placed ninety dollars of this money in Carter’s hands to indem*601nify Mm as Dalrymple’s bondsman, and tMs indemnity money was paid on the judgment by Carter and that this ended the transaction. The facts and the pleadings, as we understand them from an examination of the record, are correctly stated in our original opinion. The appellee was clearly entitled to recover on the note -unless it was defeated by the set-ofí. The only reply to the set-off was a general denial. It is conceded that judgment was rendered against Dalrymple as principal and Carter as surety; that Woods furnished Carter the money to pay on the judgment, but there is nothing in the record showing that this money belonged to Dalrymple; that Carter paid the judgment with such money and assigned the judgment to Woods. The evidence, without contradiction, shows that Woods induced Carter to become surety on Dalrymple’s bond, and that he afterwards gave him the money to pay on the judgment, and that Carter assigned the judgment so paid by him as such surety to Woods. Woods also testified that he borrowed two hundred and fifty dollars of Dalrymple soon after he was appointed guardian and that he afterwards paid the debt, in money and by allowance for services rendered Dalrymple as an attorney, but his cross-examination leaves the question of payment in full in doubt. Afterwards Dalrymple sued him, and pending the litigation, after a verdict had been rendered against him, which was set aside, he settled the matter by executing two notes, one being the note in suit, and by paying him $50. There is no other testimony in the record on the subject. It occurs to us that prima facie the set-off was established. The set-off was not controverted by any pleading except the general denial.
¶3The petition for rehearing is overruled.