Sherwood

Mr. Justice Heydenfeldt concurred.

This is an action by one of the makers of a joint and several promissory note, against his co-maker for contribution.

Plaintiff and defendant executed their joint and several promissory note, in favor of S. J. Field, for the sum of $1,552, with interest secured by mortgage on certain property. Field assigned the note and mortgage to one Benham. Afterwards, to enable the parties to sell said property, Field and Benham entered a satisfaction and discharge of the mortgage on the record, though the debt was not paid. The property mentioned in the mortgage was sold for $800, which was paid to Benham and credited on the note. Plaintiff advanced money and performed labor for Field in the years 1851 and 1852. On the 10th of April, 1852, a settlement was had between the plaintiff and Field, and the amount due from Field to plaintiff was appropriated to the payment of said note, which was, at the time, cancelled and delivered to plaintiff on his executing a release of all demands against Field.

On the trial, plaintiff asked the Court to instruct the jury : 1st. That the .entering a discharge of the mortgage, by the mortgagee, does not, of itself,…