
    Thomas H. Jervey v. William W. Wilbur.
    Charleston,
    March, 1830
    A knowledge, by the indorser, of the insolvency of the maker of a promissory note, does not dispense with the necessity of a demand and notice, in order to charge the former.
    An agreement by an indorser to dispense with demand and notice must be express and unequivocal; nor will an express promise to do so, made to a third person, although accompanied with a knowledge of the insolvency of the maker, bind the indorser.
    Tried before the Recorder, in the City Court of Charleston, at January Term, 1830.
    This was a summary process against the defendant, as indor-ser of a "promissory note. The note became due on the 31st October L829, and a demand was made upon the maker, but the precise date of the demand was not established: notice was not given to the indorser until the 25th November of the same year.
    Mr. Cruger, the plaintiff’s attorney, testified, that he had'had in his hands for suit, on account of the plaintiff, a former note of-the same maker, (one Mood) indorsed by the defendant; that he sued on the said note, and the defendant called at his office and paid it, but refused to pay the costs of the suit against the indorser; upon which witness stated to him, that the plaintiff held other notes of Mood’s, with defendant’s indorsement,' which were becoming .due, and that he, witness, would give him no notice of the next suit before issuing process againt him; and' £¡ía[ defendant replied, he wanted none, for he knew the maker was insolvent, and that the rest of the notes must be paid by himself, which he would take care to do, before they could get into witness’ hands.
    His honor, the Recorder, ruled this to be an agreement by the defendant to dispense with regular demapd and notice; and made a decree for plaintiff.
    The defendant now moved to set aside the decree', as contrary to law.
    Bunkin, for the motion.
    Cruoer, contra,
    
   Johnson, J.

delivered the opinion of thg Court.

The obligation, imposed on the indorse^of a promissory note,, to demand payment of the maker, and give notice to the indorser with all due diligence,is merely a legal inference from the contract of indorsement in the ordinary form; and there is no question that the parties may by express stipulation vary its terms, and consequently its legal effects: but the Courts are slow to do it for them on circumstances, which furnish only a presumption of the intention of the parties to dispense with the rule; and it has been regretted, with much reason, that a demand and notice has ever been dispensed with, in any case where it was physical-j ly possible.

In this indorsement it is not pretended that there is any express stipulation on the part of the defendant to dispense with it; and upon analyzing the evidence, 1 think it will be found, that the only fact relied on was the insolvency of the maker, and that it was known to the defendant. But all the authorities agree that this is not enough to dispense with a demand. An insorveut may have friends, who are able, and willing to assist, and relieve him from difficulties.

The defendant did say, it is true, that he would pay the note when due; but that declaration was made in reference to the threat of Mr. Cruger, that he would bring a suit against him, without giving notice that the note was in his hands, to be put in suit, and m contemplation that the plaintiff would do every thing necessary to render him liable to pay it, when it fell due, and it must be difficult to construe this declaration into an unqualified undertaking to pay. If it were, even then the defendant' would not be liable, for such a promise presupposes an implied condition, that he should have due notice of the default of the maker. In Baker v. Birch, 3 Camp. 107, the drawer, who was also the indorser of a bill of exchange, promised the acceptor, a few days before it fell due, that he would himself pay the bill, and received from the acceptor five guineas to aid him in doing so; and there Lord Ellenborough held, in an action by the holder against the dawer, that although he was intitled to.recover the five guineas, as so much money had and received to his use, yet that the defendant was discharged from his liability as drawer, and indorser, as the plaintiff had not démanded payment of the acceptor in due time.

There is another view, which, in my own mind, is equally decisive of this case. At the time the defendant held this conversation with Mr. Cruger, the latter had no authority to represent the plaintiff, not even in the character of attorney at law, for the •note was not due, and could not have beeh in his hands to sue; and a loose declaration made to him, could never operate as a new contract between these parties, although, in terms, it had amounted to an express declaration of an intention to pay, unconditionally. It was a mere declaration of intention, which the defendant was at liberty to act upon, or not, as he should after-wards think proper: and I do not know that morality would enjoin the performance of a promise, the omission of which would deprive no one of any right, or do any one a wrong. That the law does not is very certain. The motion is granted and a new trial is ordered.

Richardson, J. concurred.

Motion granted.  