54 Vt. 495 | Vt. | 1882
The opinion of the court was delivered by
The declaration contains a special count on a promissory note, and the common counts. The defendant Bel
This is not a case of an agreement to discharge upon part payment of a debt. We understand the substance of the allegation of the plea to be that Ford had put sufficient property into Whitney’s hands to pay the note. Under the existing agreement that it should be so applied, the note was practically paid. If a creditor has collateral security of the principal, the surety is entitled to the benefit of it; and if the creditor surrenders it voluntarily, this discharges the surety. Chit. on Con. 583, 10th Am. Ed. and note i.; 2 Am. Lead. Cas. 380.
Belknap had a legal right to have the property applied in payment of the note. In consideration of Belknap’s consent that it might be applied on the other debt, Whitney agreed to discharge him on the note.
It was not a past and executed consideration ; because, although the property was then in the possession of Whitney, the agreement was to change its application ; and it was that change that injured Belknap by losing the benefit of the application on the debt for which he was holden.
The plea is argumentative; but such pleading is aided on general demurrer. Gould PI. ch. 10, sec. 30 ; and numerous cases
Judgment pro forma reversed, and cause remanded.