¶1By the Court,
¶2The judgment in this case must be reversed. There seems to us to be no pretense for charging the defendant with the payment of the money demanded. The note was never delivered, and never had a legal existence as such. It remained in the hands of the plaintiff, one of the makers, and was to all intents mere waste paper. The case differs not materially from what it would have been, had the defendant, an entire stranger -;o the judgment against the plaintiff and Bonner, upon the constables bond, promised, in case the plaintiff would pay the judgment, that he, defendant, would refund so much of the money as was required for that purpose, and suit had been brought upon that. Such a promise would clearly have been without consideration, and void. The giving of a note by the defendant: to the plaintiff, would not have aided it. The note now in the hands of the plaintiff certainly constitutes no better evidence of indebtedness against the defendant.
¶3Judgment reversed, and cause remanded with directions that the action be dismissed.