
    THE UNITED STATES BANK v. JAMES W. SOUTHARD.
    Note. 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, 1838. 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.
    
      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 indorser 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 S. 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.
   By the Court.

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

W. Thompson, Esq. farther 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 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 this time. I 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 canse from the expense of being brought again to the Circuit, and that the defendant have leave at bar, to move that the verdict be set aside and a nonsuit entered.

The jury found for the plaintiff, 8300 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 facte and laches of holder, though the party making it, misapprehended the lav, is sufficient to bind the drawer or indorser. 12 East, 39.

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

The 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—rélied on the case of Barkalow v. Johnson et al., 1 Harr. 400.  