The opinion of the Court was delivered by
Sergeant, J.The defendants being bound to the plaintiffs for the whole debt, could be discharged from it only by payment or release. There was clearly no'payment, for the sum received fell short of the debt. Was there a release, or anything equivalent? It seems that there was an appropriation of a sum of money with the consent of the plaintiffs as well as of the defendants, which, had it been available to the plaintiffs, would have been payment; but from circumstances not under the control of either party, it was not available, but remained locked up in court. Now, why should the plaintiffs bear this loss ? The mere appropriation by a debtor of a fund to meet his creditor’s claim, is not a payment of the debt, if, without the act or default of the creditor, the money does not come into his hands, though such appropriation was made by his consent. His right to be' paid his debt still continues. There is no evidence in the case of an agreement by the plaintiff to accept this appropriation in full of his claim, or to substitute it for his debt. Nor can anything more be inferred from the facts than an understanding that the debt should be paid in full. But it was not, and therefore the claim remained. The rule of court does not affect the question. It only regulates the period up to which the fund raised is to pay interest: it does not pretend to determine what amounts to satisfaction of the creditor’s claim. In our opinion, there was no reason why the defendants should not pay the balance due. The judgment of the court below is reversed, and agreeably to the case stated, judgment is to be entered for the balance due.
Judgment reversed.