delivered the opinion of the Court.

This ca-e does not fall within the reason, and consequently not within the rules of the law merchant.

The simultaneous agreement between the plaintiff and defendant, as negotiated and proved by Cushing, and the indorsement of the note, were parts and parcels of the same transaction. Justice cannot be done between the original parties to this agreement, without giving such a construction to the whole transaction, as will carry their understanding into effect. The agreement on the part of the plaintiff to delay the collection of the note a year, according to the request of the defendant, and the understanding that if was not paid within that time, he, the plaintiff, was to sue the maker, are conditions to an indorsement inconsistent with the rules of the law merchant.

The indorsement, therefore, as between these parties, can be regarded only as evidence of a guaranty that if the plaintiff delayed the collection according to the understanding, and then pur*128sued the maker of the note, with ordinary diligence, such as the law presumes the payee would have made use of, he should be able, by such pursuit, to recover his money. Such diligence, it is conceived by the Court, has been used by the plaintiff, and he has failed to recover his debt of the maker. The evidence offered by the defendant, and rejected by the Court, would not have altered the case. The defendant, as guarantor, or surety in that event, is, therefore, liable. Justice having been done by the verdict, the defendant’s motion is denied, and

Judgment must be entered on the verdict.