The Chief Justice (T. Clayton,) thought not, and that the execution should be set aside and the judgment opened. The condition of the bond contemplates but one note, which it describes by date and amount; and cannot be extended to apply to the second note, though that was a mere substitute or renewal of the first. The first note has been extinguished; the liability of this plaintiff as endorser upon it is at an end, and without his being damnified. If he has sustained a loss on the second note, he cannot execute this judgment to indemnify himself. Robinson and Harrington, Justices, were of a different opinion.

The condition of the bond is to pay the note of the 21st July, 1835; to secure Sutton “ against any liability that might fall upon him in consequence of his endorsement of said noteand it was to operate “in the event of any failure to pay the said note.” The renewal of this note was not a payment; and the condition of this bond has been or may yet be violated. There has unquestionably been a failure to pay the note, which falls within the words of the obligation.

This is an application to the equitable power of the court to set aside this judgment on equitable principles; and, whether it be at the instance of the defendant himself, or his creditors, we ought to require equity at his hands. The execution is, however, irregular by reason of no amount of real debt being endorsed on it, or on the judgment. We incline to think, also, that there was no breach of the condition of the bond until Sutton actually paid something on account of his endorsement; when thus damnified, he may endorse the amount on the judgment and issue execution.

Wales, Booth and Rodney, in support of the rule, J. A. Bayard, contra. Rule absolute, so far as to set aside this execution, but not to open the judgment.