
    Roper Gregory vs. William Allen.
    In Error.
    If the charge of the judge below be not excepted to, and spread upon the record. it will be presumed correct.
    To show a waiver of demand, and notice by an indorser, clear and unequivocal evidence is required of such waiver.
    The rule, that in some cases, where justice has been done beetween the parties, the court will not'grant a new trial, (although the verdict be against evidence,) does not apply to indorsement cases, oreases founded on commercial law.
    Gregory sued Allen before a justice of the peace for Sumner county, as indorser of a promissory note, for 30 dollars, executed by Alfred Bell. The justice rendered a judgment against Allen, from which he appealed to the county court. At the August term, 1823, of the county court, the cause was tried, and a verdict and judgment entered up for the defendant Allen; from which judgment Gregory appealed to the circuit court.
    The facts of the case, as proved at the trial in the circuit court, are as follows: “Gregory sold Allen a waggon, and received this note (which was then due,) in part pay for the same. Allen indorsed the note to Gregory — Bell, the maker of the note, had removed from Sumner county, at the time of the indorsement. Allen admitted, that it was agreed between them, that Gregory need make no demand or notice until the following May, 'when Bell was expected, to return, and that he would take no advantage of the in-dorsement law until that time.
    Bell did not return until some time in July, 1823, after’ the commencement of this suit, which was on the 14th •of-July, 1823. No demand of the money from Bell, or notice to Allen, was proved. , '
    Lewis Panky, a witness for the plaintiff, proved that a few weeks before the commencement of this suit, be was present at a conversation between Gregory and Allen— that he then informed them that Bell was living at Samuel Wilson’s, in Bedford county, and that he expected to start for that place in about a week. Allen and Gregory then agreed to send the note out by witness for collection. Gregory asked Allen, if he would be accountable to him for the amount of the note, if he (Gregory) waited until witness went out and returned, to which Allen replied, “that he felt himself bound for the note as they had agreed.” Witness’s understanding was,- that if he carried out the note, and failed to make the money, that Allen was to be accountable for it, not otherwise — witness did not take the trip, and the note never was seut'out to his knowledge.
    It was also proved when Bell moved from Sumner county, he did it openly, and carried off a considerable amount of property with him.
    The judge- charged the jury, to which charge no exception was taken, and a .verdict was found for the plaintiff for thirty-three dollars and thirteen cents.
    A motion was made for a new trial by the counsel for the defendant, which motion was'overruled by the court.
    
      Rucks for the plaintiff in- error,
    contended that this was a verdict clearly against law and evidence; that no demand or notice had been proved, and that the evidence did not establish a waiver of demand and notice, on the part of Allen. His agreement not to take advantage of the in-dorsement law until May, was a waiver of it until that time, and no longer. That by this agreement there was no cause of action against Allen until May, and that to bind him for the payment of the' money,' after that time, demand and notice must be proved^ or an express waiver, or promise to pay with .full knowledge of the facts. (12 John. Rep. 423, 6. ditto 385, 14 John. Rep. 162.)
    He further contended, that the evidence showed clearly that Allen was only bound to pay the money, in case it could not, in the first instance, be made out of Bell; and that Gregory never attempted to make the money out of Bell. That Allen’s promise was only conditional and qualified, and the condition not performed on the part of Gregory. On this point he cited 11 John. Rep. 180,1; 8 ditto 384.
    
      Yerger contra.
    The agreement as admitted by Allen, was in substance an agreement by him, to waive demand and notice, subject to the condition, that if Bell did return bj jyjg^ w]:iich time both parties expected him back,) demand must be made of him for the money, before Allen (the indorser) should be resorted to. This is the true meaning of the agreement. If Bell returned, demand and notice was tobe made of him; if he did not, neither were required. And the proof upon the record is, that Bell did not return until some time in July, a week or two after the commencement of this suit against Allen.
    The evidence of Pankey, does not impeach this construction — for he says, that Allen, in answer to an inquiry made ' of him by Gregory, replied, “that he felt himself bound for the note, as they had agreed.” Here Allen evidently referred to the previous agreement, and confirmed it. It is •true, Panky says, his understanding was, that Allen was only to be liable, in case the note was sent to Bedford county, where he had informed them Bell had removed, and Bell there sued for the money. But the conversation of the parties, as detailed by him, by no means warranted him in drawing that conclusion; more particularly when we recollect he was unacquainted with the previous agreement, as admitted by Allen. Gregory, to be sure, did in that conversation agree to send the note to Bedford county by Panky, to sue Bell upon it, (Panky having informed them that he intended to start in a week or two for that county.) Butdid this do away the effect of the firstagreement, if Panky ■did not take his intended trip? It did not — it only amounted to this, that Allen-being liable to Gregory for the money, by their previous agreement; Gregory, in order to benefit Allen, and being willing to get it from Bell, if he could, without resorting to Allen, agreed if Panky would go to Bedford county, he would send the note by him to collect. But he did not agree to send it by any person else; and as Panky did not take his intended journey, the parties stood on precisely the same ground that they did before the conversation with Panky. This agreement was intended solely for the benefit of Allen, and was binding on Gregory only in the event that Panky made his trip to Bedford county;- and consequently did not do away the effect of the former agreement, unless Panky had went to Bedford county, and Gregory did not send the note by him.
    In this case justice has been done between the parties; and it is a rule of law, that where the justice of the cause has been attained, no new trial will be granted, although the verdict be against evidence. (1 Mass. Rep. 237; 11 ditto 193; 2 Caines Rep. 129; 4 Term. Rep. 468; 1 Haywood 13.)
    
   Crabb, J.

delivered the opinion of the court. The charge of the judge below, was not excepted to, and must be presumed in every respect to be correct. So that the only question in this case is, whether the verdict is against evidence — and we clearly think that it is.

The well settled rule of law is, that to show a waiver of demand and notice, there must be clear and unequivocal evidence. The deposition of Panky is of an indistinct, uncertain character; and the court think any preponderancy it has, is much in favor of there having been no waiver, instead of its affording clear evidence of such waiver.

The only other proof, that of the endorser’s admission, amounts to nothing unfavorable. The judge below,- no doubt charged the jury, that there ought tó be clear and unequivocal evidence of waiver, to charge the defendant in that court; and if he did not so charge, we cannot see how lie could be satisfied with the verdict. He ought to have granted a new trial, when probably the testimony of Ragan, who made important proof before the justice, and who does not appear to be dead, might have .been had; and perhaps the personal attendance, or. a more explicit statement in writing, could be had from .Panky. The court is mindful of the established, doctrine, that a revising court will not reverse a judgment in such a case as this, unless clearly erroneous — this they believe to be so.

There are some cases where courts have refused to set aside verdicts, on account of the justice of the case having been attained. But we do not believe this doctrine has ever been applied to endorsement cases, or cases founded •on commercial law — nor do we think it ever ought. It is impossible to tell, in this instance, on which side lies the jus^ce Qf £he cage — jn a}} cascs the COUrt knows no between the justice of the case, and the law of the case.

Judgment reversed, and cause remanded for trial da nows.  