¶1Upon the facts proved and admitted at the trial, the jury were instructed that by law the defendant was entitled to a verdict; and we think it very clear that they were rightly so instructed. The note sued had been paid to the nominal plaintiff before the commencement of the action ; and the only question was, whether the note, at the time, was his property. It had been before pledged to Robert Fuller, as collateral security for the payment of notes to him from Charles B. Porter; but those notes were afterwards paid, and Fuller’s lier, on the note in suit was thereby discharged. It was paid, it is true, by Benjamin Porter, who prosecutes this suit in the *363name of Bowditch, and to whom Fuller delivered the said note on receiving payment from him. But Fuller had no right to transfer the note ; his lien thereon having been discharged. It makes no difference that Benjamin Porter and Bowditch were co-sureties for Charles B. Porter. They were jointly liable to Fuller, but the payment by one discharged both ; and the cases of Hammatt v. Wyman, 9 Mass. 138, and Brackett v. Winslow, 17 Mass. 153, are directly in point. If Benjamin Porter had been a surety for Bowditch, the case of Norton v. Soule, 2 Greenl. 341, cited by the plaintiff’s counsel, might be applicable ; but whether, in such a case, the present action could be maintained, it is not necessary to express any opinion.
¶2Upon the facts agreed, there can be no doubt that the notes to Fuller have been paid, and it is immaterial by whom they were paid ; for by whomsoever payment was made, the collate rai security was ipso facto discharged.
¶3Exceptions overruled.