Day, J.
1. surety : ment pay I. The rights of the parties are fixed by the judgment rendered in the case of Waller v. Ham et al. It is-plain from the judgment rendered in that case that it was the intention to make Margaret McKenzie conditionally liable for two-thirds of the judgment rendered against Ham and John Doud conditionally liable for one-third of the judgment against Ham. In other words, in the event of the failure to collect the judgment from Ham, the whole of it should be collected from McKenzie and Doud, McKenzie paying two-thirds, and Doud one-third. The plaintiff has no more right to insist that the three thousand and twenty-five dollars collected upon the judgment shall be applied in full discharge of his conditional liability, than Margaret McKenzie has to de*638mand that it shall be applied infull discharge of her conditional liability. If both are discharged, it follows that one-third of the judgment against Ham is without any security. The amount collected should be applied upon the judgments against McKenzie and plaintiff in proportion to their respective liability.
2. —: --: proportion of II. Appellant claims that plaintiff, at the most, cannot be held liable for more than one-third of what remains unpaid, and that the court below should have so held. It is true, as we have before seen, that plaintiff can be held liable only for one-third of what remains unpaid. The only question is whether the plaintiff is entitled to any relief in this action. The petition is drawn upon the theory that the whole judgment has been discharged, and that Maria Waller refused to enter satisfaction. If defendant had been asked to credit the judgment with one-third part of the amount collected non constat she would have refused to do so. She ought not to be required to incur the expenses of a litigation unless she has refused the plaintiff what he is entitled to. Further, it does not appear that this relief was claimed in the court below. If the attention of the court had been called to this feature of the case, probably the relief, to this extent, would have been granted without incurring the expenses of an appeal. It seems most probable that the claim for this qualified relief was made for the first time in this court. Still, under the petition, the plaintiff is entitled to the relief asked for, or any lower degree included therein. Code, § 2729. The plaintiff, failing to make a case entitling him to the satisfaction of the entire judgment, would be entitled to a satisfaction of so much of it as has been discharged. The cause will be reversed, with directions to the court below to overrule the demurrer, and, if no answer is filed, to enter a decree that the defendant credit upon the judgment against plaintiff one-third part of the amount collected. Inasmuch as it is not averred that defendant ever refused to make such a credit, and does not appear that the *639plaintiff might not have had this relief in the court below, if the attention of the court had been directed to it, the plaintiff must pay the costs both in the court below and in this court.
Ee VERSED.
Mr. Justice Adams took no part in the decision of this case.