The opinion of the Court, wag delivered by

This was an action brought by the plaintiffs *474■against the defendant as the indorser of a promissory note, made by D. D. Southard, for three hundred dollars, payable to the defendant, at ninety days, and dated on the 24th of April, 1836. The declaration is in the usual form, and the plea non assumpsit. Upon the trial at the Somerset Circuit, the plaintiffs after proving the signatures of the maker and indorser, offered to prove that after the note had been dishonored, the defendant made an express promise to pay if. This evidence was objected to, on the ground that until a demand of payment and notice of nonpayment was proved, such promise was without consideration and void under the statute of frauds; and more especially, if it was made by the defendant without knowing that he had been discharged by the laches of the plaintiffs. But the court overruled the objection.

The plaintiffs then proved by W. Thompson, Esq., that in March, 1837, ho called upon the defendant, and showed him the note. That he admitted his own signature, and that of the maker, and said that he would pay it as soon as he could raise the money. That he had no dependance on bis brother Dan to pay it. That he'had been informed by his uncle, that the note lay over unpaid, and he had expected it to be sent on for collection, before. The witness then requested him to sign his appearance to a writ, which he did. Witness did not understand from defendant, that payment had been demanded of the maker, or that he bad received notice of non-payment.

Upon this evidence the court recommended a verdict to be rendered for the plaintiffs, with leave to the defendant to move to set it aside, and enter a non suit, if this court should be of Opinion that the evidence did not in law, warrant a recovery against him-

The defendant in support of his motion to set aside this verdict, insists in the first place, that the promise proved, was void for want of consideration, and also under the statute of frauds, it being a promise-to pay the debt of a third person; and second, that it was made without a full knowledge that he had been discharged by the laches of the holders.

There are many cases in the books, which contain a full answer to the first objection. In 12 Wheaton’s Rep. 183, Thornton v. Wynn, it was adjudged, that an unconditional promise by the *475indorser of a bill or note, to pay it, or an acknowledgment of his liability, after knowledge of his discharge by the laches of the holder, will amount to an implied waiver of due notice of a dedemand. If the indorser by such promise, waive’s all exception to want of demand and notice of non-payment, he places himself in the same condition he would be in if such demand and notice had been proved. It remains then to inquire whether the promise in this case, which was absolute and unconditional, was made with a full knowledge of the facts. There is nothing to vary this case from that of the case of Johnsons v. Barkalow, 1 Har. R. 397, except that the defendant at the time of the promise, said, that ho had no dependence on the maker to pay it, and that he had understood from his uncle, that the note was laying oyer, unpaid; and ho expected it would have been sent on for collection, before. I cannot perceive that this amounts either to an express waiver of a demand on the maker, or that it proves a knowledge on the defendants part, that no demand had been made from which the law would imply a waiver, on his promise to pay. Suppose he did not expect that the maker would pay the note, this would not absolve the holders from their obligation to make the demand; and suppose it be true, that he was informed that the note was laying over unpaid, this was no evidence to him that it had been duly demanded of the maker: and Iris expectation that it would before have been sent on for collection, does not prove that he knew that he was discharged by the laches of the holder. There is then no evidence in the case, showing that the defendant’s promise was made upon full knowledge of his having been discharged. If the doctrine, therefore, laid down in the English books on this subject, and by the Supreme Court in New York, and confirmed by our own Court, in the case above referred to, be correct, the verdict in this case should be set aside; for I see no material distinction in the cases.

lÍAxxosr, J., being connected opinion. with the defendant, gave no

Verdict set aside.

*476Note. The following statement and brief in the preceding case, were received after the opinion of Justice Nevius was put to press.

This was an action brought against the defendant as indorser of a promissory note, and was tried at the Somerset Circuit in April, 18S8. The following is a statement of what took place at the time of the trial, from the notes of Justice Ford.

W. Thomson, Esq., sworn. The note produced is subscribed in the hand writing of Dan D. Southard, and indorsed in the hand writing of the defendant.

The plaintiff produces no proof, that payment was demanded of the maker of the note, or that notice of non-payment was given to the indorser. He offers to prove that after the note had been dishonored, defendant made an express promise to pay it.

Hartwell for defendant, objects to the evidence, and insists that a demand on the maker, for payment, and notice of his neglect,to the indorser, are conditions to be performed by the holder, and if he fail to prove them, the indorsor is discharged in law; and it becomes the sole debt of the maker of the note. A promise of the indorser to pay the debt of another, is without consideration, and does not bind him, especially if made in ignorance of his rights.

James 8. Green for plaintiff, answers and insists that proof of demand on the maker, and notice of non-payment to the indorser are required as a general rule, but there are well established exceptions to it. If the defendant knowing of irregularity in those respects, nevertheless promise to pay the note, it is equivalent to proof of demand and notice; it is a waiver of them.

Hamilton for defendant. A promise is void according to the American cases, if made without knowing he has been discharged by the laches of the holder.

To judge whether the indorser has made a waiver of demand and notice, we must know the facts. Let the witness proceed.

*477ÍV. Thompson, Esq. further testified: In March, 1837", upon receiving this note for collection, I called on the defendant and showed it to him; he admitted the execution of the note and the indorsement to be genuine. I told him I was directed to call on him for payment of it, he said, he would pay it as soon as he could raise the money, that he had no dependence on his brother Ban to pay it; that he had been informed by his uncle, that the note lay over unpaid, and he had expected it to be sent on for collection before this time. Í told him, he must come and sign his appearance to a writ, and he did so. He asked me to inquire for the indorser subsequent to him, whose name was indorsed in blank, and is so still. I did not understand from him that payment had been duly demanded of the maker, or that the defendant had received any notice of non-payment, except from his uncle.

The Court said. If the defendant had not received due notice of non payment, he must have been cognizant of that at the time he made the promise. "Whether the promise was a waiver of evidence to show a demand on the maker of the note, or equivalent to proof of it under the circumstances detailed, was a question of law, that might be settled at bar. The Court therefore recommended that a verdict be taken for the amount of the note and interest to the 2d Tuesday in May next, in order to save the ruase from the expense of being brought again to the Circuit, and that the defendant have leave at bar, to move that the verdict he set aside and a nonsuit entered.

The jury found For the plaintiff, 0300 damages, and six cents costs.

On the return of the postea, a rule to show cause was entered; and at the term of February, 1840, the same was argued.

James S. Green for plaintiffs. A promise to pay, admits the existence of every thing necessary to render him liable, and cited 2 Camp. 188; 4 Camp. 52; 6 Moore, 319; 16 John. R. 154; 17 Com. Law; 319.

A mere promise to pay, made after notice of facts and laches of holder, though the party making it, misapprehended the law, Is sufficient to bind the drawer or indorser. 12 East, 39.

There is a distinction between the ignorance of facts, and of ihe law. The first excuses, the last does not. 2 East, 471.

*478The defendant in this case, knew that payment had not been made by the maker, and that he had not received notice of nonpayment, and this distinguishes this case from the case of Barkalow v. Johnson et al., 1 Harr. 400, where the defendant was ignorant of the facts of the case.

S. R. Hamilton contra — relied on the case of Barkalow v. Johnson et al., 1 Harr. 400,