Gay

By this action plaintiff seeks to recover rent under a lease, and to hold the defendant as surety under a bond given by it to secure its payment. In defense of the action the defendant pleaded that its liability was expressly limited by the terms of the bond to the sum of five thousand dollars, and averred that in accordance with the demands of the plaintiff made upon it monthly, it had paid thereunder the full sum of five thousand dollars, and that its entire liability was thereby extinguished. With its answer the defendant filed a cross-complaint, in which it was set forth that it had, in addition to the five thousand dollars, paid by mistake the sum of $550, and prayed judgment against the plaintiff for this amount. ' It recovered judgment in accordance with its prayer, and the appeal is by plaintiff from such judgment.

It appears from the record that the defendant was reimbursed by the lessees, its principals, a portion of the amount paid by it under the bond; and the only question here presented is whether or not a surety is required to account to the obligee of the bond for such payments, it being the contention of the plaintiff that the defendant as surety is liable for…