All of the testimony is before us by proper bill of exceptions. A motion ivas made for a new trial upon the ground, among others, that the verdict was against the evidence. This motion should have been sustained. That defendant was entitled to notice of the presentation of the note to the maker, and of its non-payment, is admitted by the pleadings, and is not controverted by plaintiff in his argument. He insists, however, that it was given, or if not, it was waived. There is no pretence of an actual waiver, but it is -claimed that there was a promise to pay by the in-dorser which was in law a waiver of the right to object to a want of notice, and also an admission of the plaintiff’s right of action and that the notes had been regularly presented for payment, and due notice of non-payment given. As we understand the record there was no evidence from which the jury could have inferred notice, and none is alleged in the pleadings. Indeed it is but two evident from the entire record that plaintiff relied upon proof of a subsequent promise to pay. To give to such promise the effect claimed it is admitted that it must have been unqualified. And of such promise there is no satisfactory evidence. To prove that *46defendant said at one time, “ that be bad dried fruit with bim and would pay the notes when he sold it,” and at another time, that he “ felt himself bound for the payment,” is not such proof of an unqualified promise as the law requires. And yet this is all the proof on this subject to be found on the record.

Judgment reversed.