#### Gardiner *v*Jones.

From Montgomery.

*An indorser*is entitled to *reasonable notice of*the non-payment of a note by the maker ; but if after such a lapse of time as would have exonerated him, he makes a promise to pay, with a full knowledge that by law he is not liable, it amounts to a waiver of the want of notice.

Tiiis was an action made by the indorsee against the indorser of a promissory note made by William Moss and Drury Parker to the Defendant.

The Note was indorsed before it became due: the makers of the note resided in Montgomery County, and the County Courts of that. County were held on the first Mondays in January, April, July and October in each year. The note became payable-on the 25th of December, and suit was brought by the indorsee against the makers, to the first *April*Court, after it became due and judgment was obtained in'the ordinary course: An execution was taken out against the makers, from the term at which judgment was obtained, viz: July, and continued until January following, directed to the Sheriff of Montgomery and in every instance was returned *nulla bona.*An execution then issued to Rowan and was returned in like manner.

In March following, the Plaintiff gave notice to the Defendant, (the indorser), that he looked to him for payment, at which time the indorser promised to settle the matter and make,payment, as he feaid he had before promised to do.

The declaration contained two counts, one upon tiie indorsement ami the other upon the Defendant’s promise; —the Court directed the Plaintiff to be nonsuited ; but upon a motion for a new trial, doubting the propriety of the nonsuit, directed the case to be transmitted to the Supreme Court. — It appeared in evidence, that at the time of the promise, Defendant said he had made a foolish bargain, but be was bound and would pay it, but in futurche would use more caution.

*430At the time of the trial, the Court did not understand the witness to say that the Defendant at the time of the promise, admitted that he had before that time promise(] t¡ie pjaintiff to settle and make payment, or after that time,* but the Court certified that on the argument of the rule, that such was the evidence.

Haul, Judge.'

I cannot think that there is much difficulty in this case, either as to the law or justice of it. It is very frequently the case, at least in the interior of the state, when a bond or note is endorsed, that the understanding of the parties is, that if payment is not made by the maker, the endorsee shall coerce payment by suit $ that if there be a failure of the suit without fraud, the endorser will pay it. In this case, the Plaintiff seems to have used all diligence to collect the money, until he altogether quit the pursuit, though it does not appear that he v\ as directed by the Defendant to do so. How long it was from the time the last execution was returned, until notice was given does not appear, because the Defendant admits that he had promised payment before March, when application was made to him a second time. It cannot be said that the Plaintiff has been guilty either of fraud or neglect, unless bringing the suit be neglect in law. lYe must take it for granted also, that there is a bona fide debt due to him, which the Defendant has promised to pay.. If obstacles did lie in the way before, I think that promise has removed them. The Plaintiff could not be ignorant of the time that elapsed from the date of the indorsement, until application was made for payment, and most likely was not ignorant that a suit had been brought.' I think he can recover on the count setting forth the promise, I also think he can recover on the other, because the promise amounts to a waiver of the right, which the Defendant might otherwise have, of compelling the Plaintiff to prove legal diligence.- In giving my opinion in favor of the Plaintiff, I think I am supported by the following authorities. *4311 Taunt. 12. 6 *East, 16 N. A. Strange,*1246. *7 East,*231. 2 *East,*469.

DaNIeu, Judge.

This is an action by an indorsee against an indorser: There are two counts in the declaration, I will notice eacli in its turn.

The first count is on the indorsement of the note by the Defendant. Before an indorser shall be permitted to recover on account like this, it becomes necessary for him to prove to the Court and Jury, that he has in a reasonable time from the period of the note’s becoming due, demanded payment of the drawer, and given notice to the indorser of the non-payment, and that he, the indorser, was looked to for payment. What isi reasonable notice to an indorser, is a question compounded of law and fact. 5 *East,*14. 6 *East,*4. 1 *Schoale*and Lef. 461. 1 Johns. 428. Note, 12 *East,*36. In this State no fixed rule has been established, within what time noticq of a demand and non-payment should be given. In some of the States (where trade and commerce are carried on more extensively than in our state) they have been very particular, and rather rigid. In New-York, they have in a great measure adopted the British rule : viz : that notice should be sent by the first post after the bill or note became due, if the indorser lives at a distance; personal notice, or leaving it at the dwelling-house of the indorser, if hé lives in town.—10 *Johns.*490,—11 *Johns.*232. Where the parties in that State lived in the same town, three days was held too long.—11 *Johns,*187. In the case before the Court, notice was not given until fifteen months had elapsed after the note was due. I think there cannot be a doubt that this was not reasonable notice. A man might be fully able to pay the* greater portion of the time, but insolvent at the time notice was given. If a loss happens, it should fall on him who has omitted to do that which the parties impliedly contracted should be done, at the time of the indorse* *432ment: — make application to the drawer for the money jn a rcasonaijje (ime. if ]1(3 (]08s nof pay you, give me notice, and I will pay you and resort myself to the drawer, and either draw my effects out of his hands, or take such steps, either by suit or some other means as to get the money: do not delay so long, that the drawer may by possibility become a bankrupt, or lose all kind of credit with his friends j if you do, Í am not responsible. This is language which is presumed by the law to be used by the indorser, and agreed to by the indorsee at the time of indorsement. The indorsee’s bringing suit against the drawer makes no difference, the law does not require him to sue, and if he does, his case is not bettered by it.

The second count is on an express promise by the endorser to pay the amount of the note_Whether or not the Plaintiff can derive any benefit from this promise, depends upon the time the promise was made, and the circumstance under which it was made. Did the Defendant make this promise before the law had entirely exonerated him from the Plaintiff’s claim ? Did he make it undera mistake, or ignorance of the law’s having exonerated him? If he made the promise after such a lapse of time, as would have exonerated him, had it not been made $ and he bad a perfect knowledge that he was not by law subject to Plaintiff’s recovery, then he would be liable to pay the note. The promise is a waiver of any notice of a demand on the drawer in such a case, and would be proper evidence to support the first count in the declaration. *Chitty on Bills,*101, 102*. 5 Johns.*248. 6 East, 16. 7 *East,*231, 236. *Peake's,*N. *P.*202.