The court are of opinion, that the direction proposed to be given to the jury, at the trial, was right. Whatever may have been the effect of taking collateral security of the promisors, by the indorser, to indemnify him against his liability as indorser, yet when he took back the property which was the original consideration for the notes, and agreed in express terms, with the promisors, that he would pay and take up the note now in suit, and deliver it to them without further consideration— and this after the note became due, and after he must have known whether he had received due notice of its non-payment, or not; we cannot perceive why this is not evidence, from which a jury might properly infer that he had received due notice of the non-payment of the note from the holder. But if this were not clear, we are of opinion that when the indorser took the property of the promisors into his own hands — being either of sufficient amount and value to pay the note, or perhaps being all they could give him — and when, with such funds as they did furnish him with, he agreed absolutely to pay and take up the note on which he stood as indorser, without further consideration from them — it was a waiver of notice on his part.

Judgment on the verdict