
    Ephraim W. Woodman vs. John C. Thurston.
    One who indorses a promissory note, inserting over his signature a waiver of demand and notice, is not entitled to any demand and notice on the non-payment thereof by the maker.
    The maker of a promissory note, as an inducement to the indorser thereof to extend the time of his liability thereon, obtained the note of a third person, and delivered it to the indorser as security for the payment of the first note; and the indorser indorsed the second note to the holder of the first, who agreed to such extension of time. When the second note fell due, the maker thereof refused to pay it until the first note was delivered to him; which was done; and he then paid his note. It was held, that such payment discharged the indorser from liability on the first note.
    This was an action commenced on the 6th of March, 1849, -Against the defendant, as the indorser of a promissory note, signed by J. F. Woodman and Company, of which the following is a copy: —
    “ Boston, October 5th, 1847. $218.44. Sixty days after date, we promise to pay to the order of John C. Thurston two hundred and eighteen dollars forty-four cents, value received.”
    Over the signature of the indorser was written a waiver of demand and notice.
    At the trial, which was in the court of common pleas, before Byington, J., the plaintiff read the note (the signatures to which were admitted) to the jury, and rested his case, without offering proof that any demand had ever been made or notice given.
    The defendant contended, that notwithstanding the waiver of demand and notice, there should have been a demand upon the maker, and notice to the defendant, within a reasonable time after the note became due, or under the statuté of 1839, c. 121) § 2, after the expiration of sixty days after it became due. But the presiding judge overruled the objection.
    It was in evidence, that the defendant took the note from the makers in the usual course of business, and afterwards and before it was due indorsed it to one Williams, at which time' the indorsement upon which this suit was brought was made; that when the note became due, the clerk of the makers, having the charge of their business, made an arrangement, at his own request, with the defendant, that the note should be extended for thirty days, on condition that the note of one Samuel T. Hazard, payable in thirty days, for the same amount, should be furnished to the defendant as collateral security, for the payment of the first note; that the clerk of the maker thereupon procured such a note of Hazard, and delivered it to the defendant, who indorsed it to Williams, having made with him a similar arrangement as to extending the time of payment of the first nóte; that some time after Hazard’s note had been given and indorsed, as above stated, the defendant agreed, in conversation with Hazard, that if the latter should pay his note, when it became due, he should have the note now in suit, and that Hazard refused to pay his note, unless this arrangement was made; that when Hazard’s note became due, he having paid it at a bank where it had been deposited by Williams for collection, went with the defendant to Williams’s counting-room, and there said he would not pay the same, unless the note in suit was first delivered to him; whereupon Williams delivered the note to Hazard, who afterwards transferred the same to the plaintiff by delivery.
    Upon this evidence, the defendant requested the judge to instruct the jury, that if the defendant, after Hazard’s note had been given and indorsed, had consented or agreed, that Hazard, upon payment thereof, should have the note in suit, such agreement or consent was without consideration and void. But the judge refused to give such instruction.
    The defendant also contended, that the payment of Hazard’s note was a payment of the note in suit, and discharged the defendant from both notes.
    The plaintiff contended, that upon the evidence it appeared that Williams, on receiving payment of the amount of the note given by him, and indorsed by the defendant to Williams, delivered the note in suit to Hazard, in exchange for his note so paid; and the jury were instructed, that if they were satisfied, that such payment was a payment of both notes, they should find a verdict for the defendant, but if such payment was only a payment of Hazard’s note, and thereupon Williams delivered the note in suit to Hazard in exchange, who afterwards transferred it to the plaintiff, they should find a verdict for the plaintiff; though the defendant did not agree with Hazard, at the time the latter gave his note, that he should have the note in suit, if he should be compelled to pay the note given by him; if the defendant afterwards, and before the note fell due, agreed that Hazard should have the note in suit, if he had to make such payment, and did also consent to the delivery of the note to Hazard by Williams, at the time Hazard paid his note.
    The jury returned a verdict for the plaintiff, and the defendant alleged exceptions. This case was argued at Boston in February last.
    
      J. C. Dodge, for the defendant.
    
      E. Buttrick, for the plaintiff.
   Dewey, J.

The express waiver of demand and notice written over the signature of the indorser dispensed with the necessity of any demand.

The further inquiry is as- to the proper instructions to be given to the jury upon the other branch of the case. And upon that point we are of opinion, that if the note of Samuel T. Hazard was obtained at the instance and request of the makers of the note in suit, or by any one acting as their agent, and for their accommodation, and as an inducement to the defendant to extend the time of his liability, and to be held by him as collateral security for the defendant’s indorsement of the note in suit; and the said note of Hazard, when procured, was in fact delivered to him for such security, who thereupon indorsed such second note to Williams, the holder and in* dorsee of the first having made an agreement with him to extend the time of payment of the first note to the period when the second would become due; in such case the payment to Williams of the note of Hazard would operate as payment of the first note, so far forth as to discharge the defendant from all further liability thereon, and the first note, if in force at all for any purpose, would only be so as against the maker thereof.

The jury should have been further instructed, that the agreement of the defendant to deliver up the first note to Hazard, as shown by the evidence, was to be considered an agreement to deliver up the note to Hazard, that he might avail himself of any remedy against the maker. If this were not so, the defendant would have no benefit as collateral by the note of Hazard, but made himself liable over to Hazard for the full amount of the note given by Hazard.

Without considering particularly the further question of the inefficacy of the defendant’s promise to deliver to Hazard the first note, upon the payment by Hazard of the second, by reason of the want of any consideration for such promise, the court are of opinion that the case should have been put to the jury under different instructions upon the effect of the original agreement made with the defendant, as to the Hazard note, and also as to the effect of payment of the Hazard note to Williams in discharging the defendant as indorser of the first note. New trial ordered.  