delivered the opinion of this court.
After a careful examination of the facts detailed in this bill of exception, we think it clear, that there was testimony from which the jury could find that the draft of the 13th June, 1846, was drawn by the plaintiff’, and hold by them after its acceptance by Talbot and Jones, as collateral security for the payment of the flour sold and delivered by them to the defendants. And that there was no evidence adduced in the cause from which the jury could infer, that the draft in question was drawn by the plaintiffs, in full satisfaction of the claim sought to be recovered, or that they stipulated by their contract, with respect to this flour, that they would look to Talbot and Jones for payment, and not to the defendants, as the responsible parties.
Upon this ground, the court below was correct in granting the plaintiffs’ prayer, and in rejecting the prayers of the defendants.
With respect to the law, in a case like this, there can be no controversy. The correctness of the rulings of the court below upon the points raised by the prayers, depends exclusively upon the question, whether there was testimony from which the jury could find that the draft of the 13th of June, was drawn and held by the plaintiffs, as absolute payment for the flour sold and delivered by them to the defendants? We think there was no such testimony.
The draft appears to have been duly protested for non-payment. It was subsequently taken up by the plaintiffs, and was in their possession at the trial. And assuming that it was held by them as collateral security for their claim, of which *228there was certainly evidence for the jury, they were under no obligation to surrender or cancel it. They had the unquestionable right to retain it until their debt was discharged.
JUDGMENT AFFIRMED.