The opinion of the court was delivered by
Kennedy, J.This is-an action brought against the plaintiff in error, as the endorser of a negotiable promissory note, by the defendant in error, as his immediate endorsee, and the only question raised by the errors assigned, seems to be, whether sufficient cause be set forth in the declaration for dispensing with a presentment of the note, by the plaintiff below to the maker thereof, for payment at the time it fell due, according to its tenor, and also with the giving of notice to the defendant below, by the plaintiff of the non-payment of the note by the maker. The note, upon its face, appears to have been made payable on the 1st day of November 1837; and, according to the statement contained in the declaration, was endorsed and passed by the defendant below, to the plaintiff, for a valuable Consideration received of the latter, before the time at which it was to become payable according to its tenor, and as a note that would become due at the time therein mentioned. But it is further alleged in the declaration, that the defendant below, after receiving the note from the maker, and before he passed it by endorsement to the plaintiff below, for a valuable consideration received of the maker, agreed to forbear payment thereof, until the 1st of November 1838, one year after the time mentioned in the note for that purpose: and that he passed the note to the plaintiff below, who was altogether ignorant of this agreement, without advising him of it. It is true, that the consideration for this agreement is not specially set forth or mentioned in the declaration; and it may therefore be that on special demurrer, if not on a general one, it would have been considered a fatal defect; but no exception having been taken to the declaration on this account till after verdict, it is fair to -presume that on the trial a valuable and sufficient consideration was proved for making this agreement, whereby the payment of the note was to be postponed one year beyond the time mentioned on its face, which the plaintiff’ below, *114when he took the note, was induced to believe from its purport, and the concealment, by the defendant of his agreement made to the contrary, would be the time at which it would become payable. These facts being all proved on the trial, as we must now take it, showed clearly that the defendant below had not dealt fairly with the plaintiff in passing the note to him as he did. That he had in fact committed a fraud upon the plaintiff below, by suppressing the agreement which he had previously made with the drawer of the note, postponing the day of its payment. This was certainly a very important circumstance, because it rendered the note of less value, and ought therefore to. have been disclosed by the defendant below to the plaintiff, at the time he offered to endorse it to him. After having made such an agreement with the maker of the note, for which he had received a valuable consideration, it would also have been a fraud in him to have permitted the maker to be called on and compelled to pay it, before the time had arrived to which it was agreed between him and the maker the payment of it should be postponed. Upon this ground, therefore, he had no right to require that the drawer should be called on first for payment, as soon as the note, according to its terms, became payable;' but on the contrary, was bound himself, in justice to the maker, to have prevented it, by calling upon the plaintiff and paying the amount thereof; so that the maker should have the benefit of the indulgence agreed on between them. The situation of the defendant below, may fairly be likened to that of an endorser, who obtains effects or funds of the maker, sufficient to answer the note; in which case it has been held, that he is not entitled to notice, because it would be a fraud in him to call upon the maker, who had thus deposited effects in his hands to answer the amount of his endorsement. Cory v. Da Costa, 1 Esp. Rep. 303; Barton v. Baker, 1 Serg. & Rawle 334. Besides, the reason why the law requires that the endorsee of a note or bill shall give notice to the endorser of non-payment, is, that he may take the necessary measures to obtain payment from the party or parties respectively liable to him. Whitfield v. Savage, 2 Bos. & Pull. 280; Orr v. Magennis, 7 East 362; Clavidge v. Dalton, 4 M. & S. 226; Cory v. Scott, 3 Barn. & Ald. 621, shows, conclusively, that the defendant below had no right to claim notice, because if he had paid the plaintiff, and taken up the note; when at maturity, according to its face, he would have had no right to demand payment of the maker for a year afterwards. It is no objection to this course of reasoning, that the plaintiff below might, notwithstanding the agreement, as he was ignorant of it, when he took the note, for a valuable consideration, in the ordinary course of business, have compelled the maker to pay it as soon as it came to maturity, according to its terms; because it would have deprived the maker of the indulgence which the defendant below was bound to give him; and it does pot lie in the mouth of the defendant to say, that he ought not to *115be made liable himself to pay the amount of the note to the plaintiff below, because the latter did not compel payment of the note from the maker, when it would have been a fraud in the defendant below to have permitted it, and not to have prevented it by paying the amount thereof himself.
Judgment affirmed.