The opinion of the court was delivered by
Peck, J..The note in suit having been delivered to the plaintiff by John E. Kimpton as an indemnity to the plaintiff for signing the $1,000 note with Hobson as surety for John E. Kimpton, the plaintiff has a right to hold it and make it available as such indemnity, until he is fully indemnified from such liability incurred upon the faith of it, unless by some new agreement or transaction by him, he has lost that right. The rights of the plaintiff are not affected by the fact that the note in suit, as between the defendant and John E. Kimpton, was an accommodation note, as the jury have found that the plaintiff had no knowledge of that fact. The receipt of the thirty-five per cent, from John E. Kimpton by the plaintiff and his co-surety, Hobson, could have no other effect than to reduce the plaintiff’s claim on the note in suit the amount of one-half the sum so paid by John E. Kimpton, the plaintiff and Hobson having each paid one-half the amount of the note on which they were sureties. Nor does that payment, together with the receiving of John E. Kimpton’s note for the balance paid by the plaintiff, discharge the plaintiff’s claim upon the note in suit. John E. Kimpton owed the debt to the plaintiff for money paid at his request before he executed the note to him, and the giving of the note did not, for the purposes of the question involved, pay the debt. The debt still existed, although evidenced by the note. In an action against John E. Kimpton for the collection of the debt, the plaintiff, in form, would be confined to his remedy on the note instead of the open account; and in this sense, and for this purpose, it is often said in this state that the giving of a promissory note for an existing debt is prima fade payment. But it is not a payment in the sense of extinguishing the debt so as to discharge the creditor’s claim upon property put into his hands by the debtor as collateral security for the debt, unless there is an agreement to that effect. For such-purpose the debt still exists, *84notwithstanding the new form it assumes by the execution of the promissory note. It is like a new note given by the debtor to his creditor for an existing mortgage debt; the debt still exists for the purposes of a remedy under the mortgage. The county court properly charged the jury to this effect, and that the burden of proof was on the defendant to show an agreement to release the security.
There is no ground for the claim on the part of the defence that the giving of time by the plaintiff to John E. Kimpton by taking the note on six months, discharged this defendant. If the defendant stands in the same condition as a surety on a noto, as to which the creditor has extended the time of payment by agreement with the principal, the objection cannot avail the defendant; as all that the plaintiff did was done without knowledge that the defendant was an accommodation maker. The note imported an absolute indebtedness from the defendant to John E. Kimpton, and the plaintiff, not knowing to the contrary, had a right, in his dealings with John E. Kimpton in regard to his claim against him, so to regard it, without forfeiting his security.
Judgment affirmed.