#### James Moore *v*. Ira H. Coffield,

From Martin.

An indorser discharged by the laches of the holder, being ignorant of such ladies, promises to pay. The promise is not binding although it appear that on a sale of real estate by the indorser to the maker, the note and a deed of trust were taken to secure the purchase money, and the deed still held by the indorser at the time of the promise.

Where the maker is a seaman, without_any domicil in the State, who goes'on a voyage about the time the note falls due, no demand on him is necessary in order to charge the indorser.

Assumpsit against the Defendant, as indorser of a single bill or obligation* of which one *Best*was the maker, and the Defendant the payee. On the trial, before his honor Judge Mangum, at the Autumn term, 1326, of the Court below, the Plaintiff proved the execution of. the note and the indorsement, and further proved that *Best*was a seafaring man, and at or about the time the obligation fell due, sailed from Washington, in this State, as captain of a vessel trading between that place and New-York. One or two days before the maturity of the bond, one *Hyman,*as agent of the Plaintiff, caused two letters to be written each addressed *to Best,*and demanding payment, and sent one of them by mail to Plymouth, and the other to Washington, and the day the bond became due, he gave to the Defendant a written notice, at the same time informing him that he had written the letters to *Best. Coffield*said he supposed he should have to pay this bond, but he should avoid the payment of another which he lmd indorsed to one *Watts,*who had failed to give him notice. *Coffield*also informed *Hyman*that he had a deed of trust from *Best*for a tract of land to secure the payment of the note, and requested him to take the land in discharge of the claim *;*and upon his refusing, desired iutn not to press the collection *of*the *248money, and *Hyman*promised (o indulge him as long as he could.

*By*the deed of trust it appeared, that *Cofield*had sold to *Best*a tract of land, and for the purchase-money had taken the obligation on which this action was brought, and the one indorsed to *Watts,*and *Best*conveyed the same land in trust to secure the payment of these obligations.

Upon this evidence, the Plaintiff’s counsel insisted, either that no demand was necessary, or there was such a promise to pay by the Defendant, as to avoid it.

The Judge instructed the Jury, *first,*that if *Caffidd*had sold the land to *Best,*and in ol der to secure the payment of the purchase-money to himself, and without any view to an indorsement, took the obligation and deed of trust, he had not thereby waived his right to insist on a due demand of the obligee, and notice to himself.— Secondly. That though the Jury should believe *Coffield*did promise to pay, yet if at the time he was ignorant that payment had not been demanded of *Best,*the promise did not dispense with the demand, nor bind *Coffield:*and *thirdly,*that though the payment of the obligation to *Cqffield*was secured by the deed of trust, and the payment being thus secured to him, he afterwards promise to pay the same to the Plaintiff, lie wras not bound thereby, the deed of trust not being a sufficient consideration to support the promise.

Under these instructions, a verdict was found for the Defendant, and a new trial being refused, the Plaintiff appealed.

The case was argued by *Hogg*for the Appellant, and the *Attorney-General*contra.

Ham, Judge.

The Judge was right in the three propositions laid down by him in his charge; but another point properly arose upon the facts ¿stated in the case. *249which was not duly noticed. It was proved that *Best,*the maker of the obligation, was a seafaring man, and at or about the time the obligation became payable, sailed from Washington, as master of a vessel bound to New-York ; and it did not appear that he had a domicil, or any establishment within the State, at which payment could be demanded. The maker being at sea, in his usual employment, and the indorsee not being bound *to follow*him beyond the State, it follows, that if he fiad no such domicil or establishment, a demand should be dispensed with.

In this view of the case, the Defendant was liable upon Ills indorsement, without any express promise to pay, and the Jury should have been so instructed — and consequently, for the Judge’s omission to give such instruction, there must be a new trial.

Per Curiam. — Judgment reversed, and new trial, awarded.