The act of the plaintiff in paying to the contractors all the money due for the work without deducting the ten per cent., was violative of the express terms of the contract, not passive but positive in character, and injurious to the rights of the sureties; hence they were discharged. Lang v. Brevard, 3 Strob. Eq., 59.
I, therefore, concur in the opinion of Mr. Justice Jones.
Mr. Justic Pope dissents.