The defence in this suit proceeds on the ground that the note in suit was given in substitution for another note executed by the defendant to the plaintiff on the 24th Aprii, 1850, on the settlement of a suit commenced by the plaintiff against the defendant on a note executed by the defendant to Ozias S. Plumb on the 24th January, 1843, and that the neglect of the plaintiff to perform his undertaking, made at the time of the execution of the note dated 24th April, 1850, as stated in the referee’s report, viz : that if the defendant would execute that note, he, the plaintiff, would show him property of the said Ozias S. Plumb sufficient to satisfy the defendant’s claim against said Ozias — constituted an entire failure of the consideration of that note, and that the note in suit, being executed in substitution for that note, had no consideration to support it.

Whether the defendant could have successfully defended the *235suit which was settled by the note executed on the 24th .April, 1850, or not, is a question which it is not necessary to determine, as the settlement of the suit, and the surrender to the defendant of the note upon which it wrs predicated, furnished a suf_ ficient consideration for the execution of the note dated 24th April, 1850. But we think that it is clear, on the facts reported by the referee, that the undertaking of the plaintiff to show to the defendant property of Ozias S. Plumb sufficient to satisfy the defendant’s claim against said Ozias, was an independent contract or promise, and that,' though the note and this undertaking were mutual contracts or promises entered into by the parties at the same time, each party has his remedy on the promise in his favor, without performing his part of the contract. In this view of the case, the defence cannot be supported. No other question being made on behalf of the defendant, the judgment of the county court in favor of the plaintiff is affirmed.