It appears that the defendants gave their father a bond with a penalty, conditioned to pay his debts, and also a mortgage, as collateral security for the performance of that obligation to him. The plaintiff sues as indorsee of a note made by the father, and outstanding when the bond was given. On these facts, the court are of opinion that the action cannot be maintained. It is not distinguishable in principle from Sanders v. Filley, 12 Pick. 554, and other cases cited for the defendants.

The verdict is set aside ; and a new trial is granted which is to be had in this court, unless the plaintiff becomes nonsuit.