¶1delivered the opinion of the Court.
¶2This is merely a question of evidence. The testimony of the witness, Ingham, was abundantly sufficient to authorize the court to find, that at the time'the surety paid the thirty dollars indorsed upon the note, and at the time he promised that the balance should be paid, he saw the indorsements on the back of the note. If he did see these indorsements, then he knew all that we now know in relation to any agreement to extend the time of payment, for there is not a particle of proof of any such agreement, apart from the indorsement. He saw the indorsement which is now relied upon for a defense, and paid a part and promised to pay the balance, with a full knowledge of every fact which he now insists upon for a defense. He thereby waived all defense which such facts would constitute, so that it is not necessary for us now to decide whether the proof shows an agreement to extend the time of payment or not.
¶3The judgment is affirmed. Judgment affirmed.