to the jury. The defence in this case is, that Stadden performed work and labor for Smith, while he held the note, which, by agreement, was to be applied to the payment of it. If you find the fact to be, that the work was done, under such agreement, it is .a payment, unless the parties afterwards agreed to apply the .amount to some other account. In the latter case,' the debt remains, notwithstanding the first agreement to apply the labor to pay the note.

Verdict for the defendant. Motion for a new trial overruled, .and judgment.