— Assumpsit by Hodge, for the use of Shannon, against Cox, Atkins, Merritt, and Nichols on a promissory note. The capias was returned “not found” as to Atkins; Cox, Merritt, and Nichols, appeared and pleaded, 1. Non assumpsit; 2. That the note sued on was given by defendants with said Atkins, as part consideration of a certain tract of land purchased by Atkins from Hodge, and that after-wards, &c., Hodge and Atkins, by an agreement made between them, cancelled and rescinded the contract for the sale of said land, and Hodge received said tract of land so sold as aforesaid from Atkins freed and released from said contract; and did then and there deliver up to Atkins the promissory note on which this suit is founded fully discharged and satisfied, &c.; 3. That on, &c., the said promissory *147note was “delivered to Atkins by Hodge fully paid and satisfied,” &c.; 4. Payment by Atkins. The plaintiff replied to the second plea, substantially, that the note was given in consideration of a tract of land sold by Atkins to Cox; that it was made payable to Hodge for the accommodation of Atkins and at his request, as part payment by Atkins to Hodge of the land purchased by the former from the latter as mentioned in said plea, and that Atkins signed the note as surety for Cok, &c.; and that when the contract between Atkins and Hodge was rescinded, as in said plea mentioned, the note was delivered to Atkins by Hodge as his own property, who afterwards for value received sold it to Shannon, for whose use this suit was brought,'&c. The replication to the third plea denied that the note was delivered up satisfied and cancelled as alleged; and the replication to the fourth plea denied the payment by Atkins. The defendants demurred to the replication to the second plea, but the Court overruled the demurrer. Issues were formed on the remaining pleas, and the cause was submitted to the Court- for trial. Judgment for the plaintiff.
C. C. Nave, for the appellants.
J. Morrison, for the appellee.
We are of opinion that the demurrer to the replication to the second plea should have been sustained. The replication is defective, because it shows that the note was discharged. Hodge, the payee, having received from one of the makers of the note an equivalent for it, surrendered it to him as his own property, which operated as an extinguishment of the debt. If Atkins was really the surety of Cok, and has paid the debt of his principal, the law affords him a remedy. It is not by suing on a note that has been discharged.
— The judgment is reversed with costs. Cause remanded, &c.