Suit upon a note given by Harmon Clark and Jediah Price to John D. Jones & Co., dated August 3, 1858.

Answer as follows: That on December 2,1856, Clark, one of the makers of said note, purchased of one C. J. Plumb, a certain tract of land, receiving from Plumb a bond for a deed on payment of the purchase money, being $1,000; $600 of *192which was paid down, and two notes, of $200 each, given for the balance; that one of said two notes, the other having been paid, came to the hands of Jones (& Go., the plaintiffs, who Pr®sen^e<^ same at maturity for payment; that said Olark promised said Jones & Go. that he would pay it, if they would procure Plumb to execute the deed required by his title bond, for the land; that they procured the deed, and delivered it to Clark, and he took up his note to Plumb, held by Jones d> Go. by assignment, by executing to the latter a new note for the money due, with Price as surety, payable at a future day; that the note thus given is the one sued on; that said defendant, Olark, has since discovered that Plumb had no title to the land conveyed to Olark, though it was the same as described in the title bond; that he has become insolvent, so that recourse to his covenant will be unavailing; and hence the consideration of the note sued on has failed.

A demurrer was sustained to this answer, and the plaintiffs had judgment.

The judgment is affirmed, with 5 per cent, damages and costs.