The judgment of the court was pronounced by
The plaintiffs claim from Henry Bales the sum of $1201 75, ns an amount which they have been obliged to pay as his sureties on the bond given by him as adininirtrator of the estate of Philemon Hightower, They also made the defendant’s wife, Charlotte Hightower, and William, S, Hightower, parties defendants; and prayed that a donation made by Bates to his minor child, and a sale made by 14m to W. S. Hightower, might be annulled as fraudulent and simulated.
In the course of the trial the plaintiff offered in evidence a transcript of the record of the probate proceedings in Alabama, which exhibited, among other matters, the appointment of Bates, his official bond, a contestation between him and the heirs, and a judgment against him and in their favor, for a balance of account due by him. To the introduction of this evidence, which had been filed with, and referred to in, the petition, the defendants made no objection at the time; but, a subsequent stage of the trial, the defendants raised the objection “that the bond was no part of the judicial proceedings,” and a copy of it should have been authenticated in a different form. The court refused to act upon the objection, as coming too late. We think the court did not err. In addition to the view taken by the court, it seems to us that it was properly treated as part of the judicial record. The transcript, prepared by the clerk, the keeper of the records of the county court, shows that the bond was the subject of judicial action. There was an order of court that it be received and recorded. Under our own practice a bond filed with the papers and proceedings, of a succession, and accepted by the judge, would be deemed a part of the record. We have no evidence nor argument presented to justify us in supposing that it would be otherwise considered in Alabama. See Taylor v. Jones, ante, p. 619. Sanders v. Dosson, ante 588. Moore v. Louallier, 2 La. 571. An objection has been raised in argument, which has not been noticed in the bill of exceptions, and, perhaps, requires no answer, with regard to the authority of the clerk of the County Court to certify the proceedings of “a Special Orphan’s *629Court,” as it is termed in the record. But the 'record contains inherent evidence that the County Court judge was ex-officio judge of Probates.
The transcript establishes a personal judgment against Henry Bates, in favor of the heirs of Hightower, and is conclusive against him.
It is said that the record cannot be deemed evidence that, a judgment was rendered against the sureties ; that it shows that n fieri facias was issued against Joseph Bates and Win. It. Pickett, the plaintiffs in this case, as sureties on the bond, but the court cannot presume a judgment because there was an execution. No doubt there is some statutory authority in Alabama, warranting execution, without further decree against the sureties, upon default of the principal in such bonds, established by a return of nulla bona. But, as we have no evidence of the law there, and no similar practice here, we will give the defendant the benefit of his objection. But aside from the transcript, which conclusively establishes the default of the principal, the plaintiffs have satisfactorily shown, by parol evidence, a payment by the sureties. The attorney of record in the litigation, which occurred, as shown by the transcript, between five of the heirs of High-tower and the administrator, proves that, after the return of the fi. fa. against the administrator, he, as attorney of the heirs,' demanded pnyment of Pickett and Joseph Bates, and received it from them. His professional relation to them appears from the record; ns their attorney, he obtained the judgment; and, in that capacity, ho had a right to receive money in payment of the judgment. See Mourain v. Beauvais, 10 La. Langdon v. Pothe, 13 Mart. s. 320. Lewis v. Gumage, 1 Pick. 347. He could recover a payment on account, and was not obliged by his duty to refuse a partial pnyment.
But it is said that the payment was not binding upon the creditors whom the attorney represented, and that evidence should be adduced of their ratification, because the amount received for the three heirs James, William, and Milly Hightower, $450, was less than their share of the judgment, and was receipted for by their attorney as in full satisfaction of their share, which amounted to I $600 87, besides costs. By reason of this compromise, which the attorney had no right to make, it is argued that the judgment was void. It may be conceded I that the compromise would not be binding, but the legal consequence is not as j claimed by the defendants. When an agent does more than he is authorized to do, the act is not always wholly void. In some eases it maybe good for that} which is authorized, and void for the rest. Here the boundaries between the j excess and the rightful execution of the authority are clearly distinguishable, and 3 the subject matter is divisible. It was the duty of the debtor to pay the debt; and having paid a part of what he owed, upon a supposed release for the residue, which was unauthorized, he could not reclaim the money either from the attorney or the principal. .
The next enquiry is whether, supposing the claim of the three heirs to be extiingished in full for the sum of $600 87, the sureties can now claim that amount from the defaulting administrator. They contend that they are subrogated to the rights of the three heirs for the total amount of their claim, and 'stand in their place against Henry Bales, the principal debtor. Their claim, to that extent, is unfounded. The surety is not permitted to speculate upon his principal. The contract is not one of profit, but indemnity. His remedy is for what he has paid. The gain of a compromise enures to the benefit of his principal.
The judgment bore interest by the laws of Alabama, where the bond was executed, at eight per cent; and the sureties are entitled to recover at that rate, form the day of pnyment.
*630The sureties also claim the amount of the shares of two other heirs, James and Mary Hightower. It would seem that, by some arrangement, the sureties have extinguished the claim of those heirs. The testimony by which it was attempted to prove the .arrangement, was objected to ; but we do not think itneces sary to decide upon its admissibility. The terms of the settlement are not proved ; and, from the circumstances, the inference is strong that the sureties made a compromise; but for how much does not appear. To .entitle themselves to relief, they should not present a doubtful case. That portion of their claim must at present be rejected. Sureties have a right to relief for partial payments. The obligation of the principal to the surety is not indivisible. See Newman v. Goza, 2 An. 645.
Noattempfc bas been made in argument to impugn the correctness of the vordiet and judgment, annulling the donation by Bates to his minor child.
No objection was made by Hightower to the introduction in evidence of the transcript of the record of the County Court in Alabama, except, those already noticed ; but, when the cause was submitted to the jury, he asked the court to charge the jury that the judgment against Henry Bates was no evidence against Hightower, and that it was incumbent on the plaintiff to make out a clear case of indebtedness against Henry Bates by other legal evidence besides the record, in order to recover against Hightower. The court refused this instruction, charging tho jury that the judgment was prima facie, evidence as against High-tower, and it devolved upon Hightower to rebut that prima facie showing. In this charge there was no error to the prejudice of Hightower.
The indebtedness of Bates, to the extent stated, is amply shown by the documents and parol evidence. The issue of simulation was distinctly made by the pleadings. The verdict of the jury is in favor of the plaintiffs ; and, under the evidence and the opinion of the judge refusing a new trial, we do not think it should be disturbed. The prescription established by article 1989 does not apply to simulated sales. See the case of Cammack v Watson, 1 An. 132.
II is, therefore, decreed that, the judgment of the court below be so far only changed, as to reduce the amountto be recovered by the plaintiffs from the sura of §750 to the sum of §450, (being the amount paid by the plaintiffs to James, JFilliam and Milly Hightower,) with interest thereon at the rate of eight per cen per annum from 25 March, 1846, until paid ; that the claim of the plaintiffs, if any they have, by reason of any monies paid to Jane JS. Hightower Graham, and Man/ Hightower Langly, by the said plaintiffs, as sureties of Henry Bales, administrator of Philemon Hightower, be dismissed, without prejudice; that, so ebaugod, the judgment of the court be affirmed; the plaintiffs paying the costs of this appeal.