¶1The opinion of the court was delivered by
¶2It seems the note, in question, was signed by the defendant, Gorham, as surety for Benedict, and that he was to be indemnified for signing it, out of the goods which he had in his possession, belonging to Benedict. On the 6th of February, 1838, as appears by Benedict’s receipt, he passed the note to the plaintiff, receiving therefor its full contents. Though this note was made payable to James Everson, or bearer, and though it was not delivered to Ever-son; still, when it had once been delivered to Thrall, upon a valuable consideration, he might well maintain an action on the note, in the name of Everson, had it not been negotiable ; and, as it is payable to bearer, and is negotiable by delivery, the action well lies in his own name.
¶3Though Gorham signed this note for the accommodation of Benedict, still, if he has funds in his hands to indemnify himself against it, no reason is perceived why he should stand on any more favorable ground than could Benedict himself. Where bail have ample indemnity in their hands, they cease to have any special exemption from liability, in consequence of standing in the relation of surety.
¶4Judgment of the county court affirmed.