The judge on the trial found that the note was not usurious. That the indorsement of the defendant was valid, and not for the accommodation of Anable. That Anable agreed to release Ogden from the payment of this note, on condition of his giving security to pay other notes and costs of suit, which security was given by Ogden. That such agreement was not founded on any sufficient consideration. That he does not pass upon the consideration on which, or the time when, the note was passed to the plaintiff.
With these findings, the only question is whether the agreement with Anable was binding or not.
The receipt of additional security is a good consideration for stich an agreement. Besides, the agreement to pay the costs of a suit not decided, is also a sufficient consideration.
Although the defendant had no release, yet the agreement, as made by Anable, was sufficient to estop him from prosecuting on the note in his own name. It therefore became necessary for the court below to pass upon the question, whether the plaintiff was or was not the real owner of the note. If he was not, the plaintiff could not recover.
Judgment reversed; new trial ordered; costs to abide the event.
Clerke. Sutherland and Ingraham, Justices.]