The opinion
Metcalf, J.
There is one ground of defence in this case which is decisive against the right of the plaintiff to recover, and we therefore express no opinion on either of the other points discussed at the argument.
The indorser of a note is discharged by a valid agreement, made without his consent, between the holder and the maker, to give .time to the maker. And such is the law, although the indorser has had legal notice of non-payment by the maker. Hubbly *15 v. Brown, 16 Johns. 70 . Wood v. Jefferson County Bank, 9 Cow 206. 2 Greenl. Ev. § 202. Byles on Bills, 183. Story on Notes, § 413. So the drawer and the indorser of a bill of exchange are discharged by a like agreement between the holder and acceptor to give time to the acceptor. By Richards, B., in Badnall v. Samuel, 3 Price, 535. Roscoe on Ev. 171. Philpot v. Briant, 4 Bing. 717, and 1 Moore & Payne, 754. Bayley on Bills, (6th ed.) 338 & seq. By a valid agreement to give time is meant an agreement for the breach of which the maker or the acceptor has a remedy either at law or in equity. Maltby v. Carstairs, 1 Man. & Ryl. 562, note (a). Greely v. Dow, 2 Met. 176 . M’Lemore v. Powell, 12 Wheat. 554 . Burge on Surety-ship, 204. Such an agreement was made in this case between the holder and the maker of the note, and has been fulfilled by the holder.
The rule of law which we apply in this case extends not only to indorsers of notes and drawers and indorsers of bills of exchange, but also to all those who, on the face of a contract, sustain the relation of surety. Gifford v. Allen, 3 Met. 255 . Theobald on Prin. & Surety, § 159 & seq. United States v. Hillegas, 3 Wash. C. C. 70 .
Judgment for the defendant