The opinion of the Court was pronounced by
Phelps, J.A single exception only is taken in this case. It is to the charge of the Court in instructing the jury, that the evidence offered by the defendant, as stated in the bill of exception, constituted no defence to the action.
If the liability of the defendant, originated in the execution of the note on the first of January 1831, and depended now upon that fact and the payment of it by the plaintiff, there is no doubt that the evidence offered by the defendant would have been pertinent and proper, as shewing a substantial defence. It is certainly to be inferred, that the defendant signed that note with the expectation that Morton should also sign as a principal, and in ignorance of the fact that Morton had absconded, it is also to be inferred, that the plaintiff knew, or at least had' reason to *159believe, that he had absconded; and the suppression of the facts, under such circumstances, would be deemed such a fraud upon the defendant, as would in equity and in law vitiate the note.
It appears however, that the plaintiff had previously executed with Morton and Hall, at their joint request, a note to the Bank of the United States, for the purpose of satisfying a note by them previously executed to Warner & Co. With respect to this note, Warner is clearly to be considered as surety for the two, and having a legal claim against them both for an indemnity. The note first mentioned Was, it appears, substituted at the Bank,for the former one, and the amount ultimately paid by the plaintiff. Upon this statement of facts, we are of opinion, that the payment made by the plaintiff is to be referred to the original debt contracted by the three at the Bank, and to be regarded simply as a payment by the surety, of the debt of his principal. The interposition of the note executed on the first of January, 1831, we consider of no importance. Admitting it to be void, so far as the defendant was concerned, it certainly did not satisfy his liability to the plaintiff, nor can it be considered as satisfying the debt to the Bank, unless it be regarded as binding on the plaintiff, and if we are to hold it in that point of view as a payment to the Bank, it amounts to a direct and immediate payment by the plaintiff of the proper debt of Hall &. Morton. Whether we consider that note therefore as binding' on both, on the plaintiff alone, or on neither, the result is the same. Upon the first supposition we must regard Hall as principal and Warner as surety, and the payment by the latter, will sustain the action; and upon either of the two latter the plaintiff must be considered to have paid the original debt, and is entitled to a full indemnity. If it be indifferent what effect we give to that note, or whether we give it any, it certainly is unimportant how it was obtained. Conceding therefore to the defendant all he claims as the result of his evidence, it leaves his original obligation to the plaintiff unimpaired and the plaintiff’s claim unsatified.
An attempt is however made to give to this- supposed fraud a retro-active effect, and to bring it to bear upon a previous bona fide transaction, and that in such a manner *160as *° discharge an undoubted obligation previously existing. The situation of the defendant is in no wise varied from what it would have been, had not the transaction complained of took place. The only effect of obtaining the note in question was to suspend the plaintiff’s claim for the period for which the note was to run, and to give the defendant further time for the payment.
• It is argued, that the defendant was injured by the omission of the plaintiff to give information that Morton had absconded, and that, in consequence of that omission, he has lost the opportunity of obtaining indemnity. Admitting the defendant to have been originally a surety for Morton in this transaction, it is still to be borne in mind that the plaintiff was a mere surety for him; and however courteous it might have been, in the plaintiff to give the; desired information, and however the defendant might have been benefited by it, as an act of friendly courtesy, it can hardly be seriously contended, that the law imposed upon the plaintiff the burthen of providing means of indemnity to the defendant, or of seeing to his interests.— Unless it can be made out, that a legal obligation rested on the plaintiff to give the information, the omission to do so can not be regarded as a legal delinquency, or as attended with legal consequences. It is an omission to do that, which he was under no legal obligation to do ; and if it be censurable it is so only as evincing a want of that friendly regard for the interests of his neighbor, which the law leaves to other tribunals than its own to enforce.
We consider that the direction of the trial was right and the judgement of the County Court is affirmed..