Notwithstanding it would be a defence, if the bank sued Roberts on the notes, to show that the bank neglected to notify him of the maker's default, the defendants cannot be heard to complain because he refuses to make it. The only question raised by the exception is whether it is a defence to this action to show that the plaintiff, after learning that the notes were not the defendants', attempted to enforce them against the corporation. The case does not stand any differently than it would if the plaintiff had known the facts when he took the notes, but had not taken them in settlement of his claim against the defendants; for the corporation promised to pay for the coal before the notes were given, and notwithstanding this promise was made to the defendants, the plaintiff can enforce it in equity against the corporation. Sanders v. Insurance Co.,72 N.H. 485. It is therefore no answer to this suit to show that Roberts is the real plaintiff in the bill in equity.
Exception overruled.
PEASLEE, J., did not sit: the others concurred. *Page 38