The opinion of the court was delivered by
An indorser is entitled to notice of protest and non-payment of a negotiable note; because the contract is that the maker will pay at maturity; and the strict punctuality which is the life of the commercial law, authorizes the indorser to presume that he has paid, in the absence of any notice to the contrary. But the right to receive notice, in order to make him liable, like any other right, may be waived by the indorser: Story on promissory notes 314, Williams vs. Brobst, 10 Watts 111, Scott vs. Greer, 10 Barr 103, Clark vs. Develin, 3 Bos. & Pul. 365. The letter dated the 15th May, 1845, from the indorser to the payee, contains a distinct statement that the drawer, his brother, will not be able to meet the note at maturity, but that, if the time is extended for thirty days, he will hold himself bound. This is a distinct guarantee that he will hold himself bound, at the end of thirty days, after maturity, and is within the case of Foster vs. Jurdison, 16 East. 104, establishing that, under like circumstances the holder was not bound to give notice. The other letters offered in evidence, shew that the time was given in consequence of this request, and the reiterated recognition of this indulgence.— The whole proceeding of the plaintiff, as evidenced by these letters, was not only fair and exceedingly indulgent, but according to law, and seems little to merit the requital it has received.
The court erred in rejecting the 1st, 2nd and third bills of exceptions.
The error assigned is sustained; the judgment reversed, and a venire de novo awarded.