¶1(dissenting.) By the very judgment roll in the suit in which the execution is issued, it is adjudged, as matter of law, that Potter was bound to pay to Clute (or any bona fide holder of the note) the amount of the note which Clute now asks to have applied in part payment of that judgment. And that part of the decision of the referee is just as much binding on Potter and Clute as any other part of it. Clute being the owner of the note, when execution was issued on that judgment, claimed to apply the • note towards the amount due on the execution. Potter refused so to receive it, and this suit is brought, in the same court, asking us to control our own "process so as to enforce both parts of our own prior judgment. It is plainly equitable, and as plainly within our power. The statute of limitations has nothing to do with the case, since Potter’s obligation to pay the note, (in October, 1854) is legally adjudicated against him, and on his own request; and he cannot now deny that he was then bound to pay it to Clute.
¶2The judgment of the circuit should be reversed, and a new trial awarded. Costs, as it is an equity case, will be in the discretion of the court, and should not be here awarded.
¶3Judgment affirmed.
¶4Gould, Sogéboom and Peckham, Justices.]