The opinion of the Court was drawn up by
Hathaway, J.
The mail pay was due quarterly, the last quarter due July 1, 1851.
It could be collected only through the plaintiff, he being the mail contractor. It was the joint property of the defendant and Drake, the defendant’s joint promisor in the note sued. The amount unpaid on the mail contract was five hundred and twenty-five dollars, which was all received by the plaintiff, or paid to his order j he should equitably allow it, on the joint note.
The jury might well have found, from the circumstances and evidence in the case, that the mail pay was a fund set apart and appropriated for the payment of this note, (unless it should be otherwise, subsequently, appropriated by the consent of all the parties,) and, if so, the receipt of each quarterly payment of the mail pay, by the plaintiff, was a payment on the note. The verdict was right. Motion denied.
Tenney, C. J., Cutting, May, Goodenow, and Davis, J. J., concurred.