Opinion of the Court. 1. The agreement between Holly, Russell, and Skelding & Co. was not predicated upon any supposed transfer of the note, but upon a distinct consideration ; by this contract, Holly agreed to pay a certain sum, he owed to Russell, on this note, to Hunt, to apply on' his mortgage, and by this agreement of Holly, Skelding & Co., were induced -to give further time of payment, and accept security, which they otherwise would not have accepted ; the promise was for thei'r benefit.
2. This contract could not be discharged, without the consent of Skelding & Co. or actual payment to Hunt, on his mortgage,- either by Russell, or defendant; non-payment, according to' the terms of the note, could not put an end to the agreement, or discharge Holly from his liability to Skelding & Co.
3. While this liability, to Skelding & Co. existed, no action could be maintained, on the note, by Russell; and, as this liability, alone, constituted a good defence, against Russell,- it would, also, against an endorsee.
4. The' possession of the note, by Russell, could not, in this case, be considered a fraud, in Skelding & Co. upon endorsees, the sum due on the note was not ascertained, and the money was not to be paid to Skelding & Co..
Judgment — For defendants.
*208See Discharge 1, 2, 3. Evidence 4, 14. Ex. and Ad. 10/ Notice 2. Town Treasurer. Patent Right, Pledge. Trustee Action.