
    JANUARY TERM, 1845.
    George Robbins et al. vs. William M. Pinckard and Jilson P. Harrison.
    When it appears affirmatively that the holder of an indorsed note has been guilty of neglect, and has omitted to give the proper notice, a subsequent promise by the indorser having knowledge of the laches, to pay the note, operates as a waiver of regular notice.
    Whether the proof of the irregularity in the service of notice, and that the indorser’s promise was made with a knowledge of it, is to come from the plaintiff, before he can make such promise operate as a waiver 1 Query ?
    
    A promise by an indorser to pay a note, made after the protest of the note, is, in the absence of all proof of demand and notice, presumptive evidence that due demand was made, and due notice given to such promising indorser.
    H., being indorser of anote for P., agreed, after maturity and protest, that the holder might grant P. a year’s indulgence on it; and at the expiration of the year, H. agreed if the holder would sue P. and himself jointly in the state court, instead of H. alone in the United States court, he and P. would let judgment go by default in the state court, to which P. assented, and the suit was accordingly brought in the state court; P. refused to let judgment go by default, whereupon H. also refused, and plead to the action : Held, that H.’s conduct and agreement to let judgment go by default, were equivalent to the most unqualified promise of payment, and were a full admission that he had no defence whatever to make to the a.ction.
    A promise by an indorser after protest of the note, to pay it, or an acknowledgment of his liability, is but presumptive evidence of demand and notice, and may be rebutted by proof showing that no demand was made; or that no notice was given.
    A bill of exceptions taken to the overruling a motion for a new trial, need not show that exceptions were taken pending the trial; the statute provides in such case, that the evidence may be embodied after the trial is concluded, and the motion overruled.
    In error, from the Warren circuit court.
    At the May term, 1839, of the Warren circuit court, George Robbius, Samuel Painter, and Nathan Green, under the firm-of Robbins, Painter & Co., sued William M. Pinckard as the maker and Jilson P. Harrison as the indorser of. two promissory notes, one for the sum of $3,990 19, payable eight months after the first day of April, 1837, and the other for the sum of $3,801 87§, payable ten months after the first day of April, 1837. The notes were sued upon in separate actions, though the defendants were jointly sued under the statute of 1837. ■ Pleas of non assumpsit were filed by each defendant. Messrs. Webster & Smith filed a plea for Pinckard. at the May term, 1839 ; and J. O. Harrison, Esq., at the October term, 1839, filed a plea for J. P. Harrison. The causes were regularly continued until April, 1841; when a trial was had and a verdict rendered for the plaintiffs in each case. The court below, on motion of the defendants, set these judgments aside and granted them a new trial. At the January special term, 1842, of the court, another trial was had, and the jury found for the plaintiffs as against Pinckard and for the defendant Harrison.
    The plaintiffs moved for new trials, which were refused, whereupon they embodied the evidence in a bill of exceptions, and appealed to this court.
    The evidence, as disclosed by the bill of exceptions, is in sub;stance as follows:
    The plaintiffs read to the jury the notes sued on, of one of which the following is a copy :
    $3801 87. Vicksburg, March 7th, 1837.
    Ten months after the first day of April; 1837, I promise to pay without defalcation, to J. P. Harrison, or order, three thousand eight hundred and one dollars eighty-seven cents for value received, negotiable and payable at the Commercial and Railroad Bank, Yicksburg. W. M. Pinoeaed.
    Indorsed, “ J., P. Harrison.”
    On each note was a credit for $900, dated Aprils, 1838; both notes were exactly alike, mutatis mutandis.
    
    The plaintiffs then read the protests of each note; the one of which recited that “ on the 3d day of February, 1838, at the request of J. P. Harrison, cashier, holder of the original note, of which a true copy” was indorsed'on, the protest, he had made demand of the teller of the banK where it was payaable, who refused to pay it, whereupon he protested it. The other protest was similar except that T. E. Robbins was the cashier, at the period of its maturity. Both protests were made by E. H. Maxcy. William A. Lake, Esq., proved, on behalf of the plaintiffs, that the notes sued on were left with him and Mr. Hnrst, for collection ; that after their maturity, in 1838, William M. Pinckard proposed to the plaintiffs to pay on the notes eighteen hundred dollars, provided he would obtain an exemption from suit for twelve months thereafter; to this the plaintiffs acceded; the witness, thereupon called upon J. P Harrison and stated the proposition and obtained his assent to the stay; upon which, the eighteen hundred dollars were paid and credited.
    After the stay had expired, the witness called on Mr. Harrison and told him, that as the'money had not been paid, he should sue him in the United States court, because the docket there being less crowded than that of the Warren circuit court, and the term unlimited, the case would probably be reached and tried at the first term; Mr. Harrison objected, and begged him to sue in the Warren circuit court, stating that he would prp-cure Pinckard’s consent not to plead and that he should have his judgment against them both at the first term of that court; that he agreed to the suggestion of Harrison, and also agreed to give Pinckard and Harrison a stay of execution for six months after judgment rendered ; that Harrison left to obtain Pinckard’s consent and returned soon, as he said with Pinckard’s assent to the proposition that judgment should'go by default against Pinckard and himself at the May term, 1839, of the Warren circuit court; to which term the suits were accordingly instituted.
    Mr. Lake testified further, that during that term, while the appearance docket was under call, before these cases were reached, Harrison asked him if they had been reached, whereupon he called for the papers and found pleas filed for Pinckard by Mr. Webster; that he and Mr. Harrison immediately went to Mr. Webster, to whom Mr. Harrison stated that it was agreed between Pinckard and himself that no plea should be filed, but that judgment should go against them by default. Mr. Webster refused to withdraw the plea without instruction from Pinckard, which Harrison promised to obtain and have the plea withdrawn; the plea, in consequence of Mr. Pinckard’s refusal to consent to it, was not withdrawn and so the cause stood upon the docket until regularly reached for trial.
    Mr. Lake stated also that Maxcy, who protested the notes, was the notary public of the Commercial and Railroad Bank of Vicksburg, where the notes were payable; that he was almost always in the town of Vicksburg, where he and Harrison resided ; that the defendant was the same Harrison, who was cashier of that bank when one of the notes sued on was protested; that prior to Maxcy’s death, Mr. Harrison never denied his liability as indorser, nor was that liability discussed; that Maxcy died in November or December, 1839.
    Besides other facts, not material, Mr. Lake further proved that he heard Mr. Webster examined as a witness in these cases at the first trial; that Webster had since died ; that Webster, in his examination stated that he’ had filed pleas for Pinckard in these cases, but did not know that Pinckard had employed him particularly to do so; that he was Pinckard’s general attorney, and filed the pleas to prevent judgment by default; that Mr.’ Harrison had, at the May term, 1839, come to him and told him he was the confidential indorser of Pinckard, and that he and Pinckard had agreed to let judgment go by default, and that he wished it to be done. Lake proved further, that Webster testified that he promised to see Pinckard on the subject, and did see him, who refused to withdraw the pleas, and so no judgment was obtained. Mr. Lake also proved that Harrison was Pinckard’s accommodation indorser.
    J. G. Bibby proved for plaintiffs,
    that the defendant, Harrison, was cashier of the Commercial and Railroad Bank of Vicksburg, at the time the note last due was protested; that Maxcy was the notary public of the bank, whose business it was to protest notes belonging to the bank, and notify the indorsers; that his uniform habit was to return, on the morning succeeding the protest, all notes protested on the previous day ; that the notary was nearly every day at the bank ; that he lived in Vicksburg, immediately on the route from the bank- to Harrison’s residence; that there was also another route which did not pass by Maxcy’s; witness did not know which Harrison took; that Maxcy lived in Vicksburg when the notes were due, and was rarely ever out of it, and that these notes were in bank during the business hours of the day they were protested, and no provision was made for their payment.
    This was all the testimony before the court.
    The plaintiffs asked of the court the following instructions.
    1. That if the jury believed, from the evidence in the case, that the defendant, Harrison, admitted his liability as indorser on the two notes sued on, knowing that notice had been legally given to him of their protest, they should find for the plaintiffs ; or if the jury believe, from the evidence, that no notice was actually given to him of the protest of said notes and he admitted his liability as indorser, knowing that no notice was given to him, then they must find for the plaintiffs; and that his knowledge of the fact that notice was or was not legally given to him may be inferred by the jury from the promise or admission of liability by the defendant under the attending circumstances, and did not require affirmative proof of his knowledge.
    2. That if, from the evidence, the jury believed the defendant, Harrison, admitted his liability as indorser on the note sued on, such admission would be sufficient to charge him as indorser, unless it is proved, that in fact no legal notice of the protest of the notes sued on was given him.
    3. That if the jury believe, from the evidence, that no legal notice of non-payment of the notes sued on was in fact given, and if they further believe, from the evidence, the defendant, Harrison, admitted or acknowledged his liability as indorser, and if they further believe, from the evidence, that he could, before he made such admission, with reasonable diligence have ascertained whether legal notice was given to him as indorser or not, they should find for the plaintiffs.
    4. If the jury believe, from all the evidence, that Harrison’s conduct and admissions amounted to a waiver of notice, they should find for the plaintiffs.
    
      5. If the jury believe, from the testimony, that Harrison admitted or acknowledged his liability as indorser, he would be ■prima facie liable; and that it was for him to prove that there was in fact no legal notice of the protests; and in the absence of such negative proof, the jury ought to find for the plaintiffs.
    6. That it is for the jury to say whether, under all the circumstances, the evidence amounted to an admission of liability or a waiver of notice.
    7. That if the jury believe, from the evidence, that Harrison promised to pay or acknowledged his liability on the notes sued on, it dispenses with proof of actual notice, unless it negatively appears, from the evidence, that no legal notice was in fact given.
    These instructions, as asked, were all refused, and in lieu thereof, the court instructed the jury as follows:
    “ If the jury believe, from the evidence, that the defendant, Harrison, admitted his liability, with a full knowledge that notice of non-payment by the maker had not been given, it would be good, and sufficient for the jury to find for the plaintiffs ; this may be shown from direct evidence or from circumstances that go clearly to satisfy the jury that he had such knowledge, but that the jury cannot infer, from an acknowledgment of his liability or promise to pay alone, that he was so informed. If the jury cannot come to the conclusion, from the evidence in the case, that the promise or acknowledgment was made by Harrison with a full knowledge that he was discharged for want of such notice, they ought to find for the defendant, Harrison ; and this the jury are to ascertain from the evidence.
    “ If the jury believe, from all the evidence, that Harrison made a promise or acknowledgment of his liability, with a full knowledge that he was not liable, the jury will find for the plaintiffs.
    “ It is for the jury to say, from all the circumstances, whether the defendant admitted his liability on the note and was liable as indorser.
    “ Unless it fully appears, from the evidence in the cause, of which the jury are the judges, that the promise or acknowledgment by Harrison if any, was made with a full knowledge that he was discharged from all liability on the note as indorser, for want of notice of demand and non-payment, they must find for Harrison.”
    The defendants’ counsel then asked the court to instruct the jury as follows:
    1. The promise made by Harrison, that judgment should go against Pinckard and himself by default, if suit were brought in the Warren circuit court, instead of the federal court, is not, of itself, without other liability, sufficient in law to charge the indorser.
    2. The promise of Harrison to let judgment go by default against him, is not sufficient to charge him with the debt sued for, if the jury believe, from the evidence, he made the promise solely under the belief, at the time, that Pinckard would permit judgment to go by default against him also.
    3. That the promise spoken of by Lake, is not in law obligatory upon Harrison, without proof showing that he made such promise with a full knowledge of the fact that he was discharged from all liability as indorser for want of notice, and of this the jury must be satisfied from the evidence.
    4. If the jury believe, from the evidence, that the plaintiffs have failed to prove that Harrison had due notice of the nonpayment of the notes sued on, then the promise to let judgment go against him by default, is not obligatory upon him, without showing that he knew at the time of the promise, that due notice had not been given to him.
    5. That a promise of an indorser to pay the debt or let judgment go by default, is not, of itself, sufficient in law to charge him, without other proof showing him to be liable.
    6. That an accommodation indorser is favored by the law, and that if the jury believe Harrison is an accommodation indorser, he cannot be held liable without strict proof.
    7. That the jury had no right to infer, from Harrison’s mere promise to let judgment go by default, that he had been notified of the non-payment of the notes sued on.
    The court gave all these instructions ekcept the second, which it refused.
    
      The plaintiffs excepted to them, and also to the refusal to grant those they asked for. The plaintiffs moved for a new trial, which was also refused ; and the whole case was embodied in one bill of exceptions and brought up by the appeal.
    
      George S. Yerg'er, for appellants.
    The facts almost show it would be a fraud upon Lake, under the circumstances, to insist on the defence set up.
    Harrison’s admission of liability, as indorser, to' Lake, is clearly proven, and the question is, whether, in the absence of any negative proof showing no demand and notice, a promise to pay, or acknowledgment of liability is not prima facie evidence of demand. The court below decided it was not.
    The first position I assume, (and one which, if sustained, is decisive of the case,) is, “ that a promise to pay a bill or note by an indorser, or any other equivalent act or admission of his liability, is prima facie, or presumptive evidence that a legal demand of the maker was made, and notice of his refusal to pay, given to him.”
    In discussing the question, it will be necessary to notice the distinction in the cases, where proof of such promise or admission has been held to be evidence of due diligence, and where such proof was held only to be a waiver of demand and notice. A want of proper attention to this distinction, has caused some confusion in the works of elementary writers, as most of them have, without discrimination, confounded the cases, and thus produced an apparent contradiction, which in truth does not exist.
    The instructions given by the court below, amount to this, 11 that when express or direct evidence of notice is not adduced, a promise to pay by the indorser, or any other admission of his liability, will not be sufficient to charge him, unless it is also affirmatively proved that he knew, at the time he made the promise, that no notice was given.”
    This charge involves, as I think, a legal absurdity. It first assumes that because a fact is not proved by positive and direct testimony, that therefore the fact does not exist, and thus assuming the fact not to exist, he requires proof that this supposed 
      laches was known to the indorser. This rule excludes all presumptive evidence to prove demand and notice; and prevents the plaintiff from recovering in all cases where notice was in. fact given, but the positive testimony to prove it .has been lost by the death of the witness or otherwise.
    I will examine the case briefly. 1st, upon principle ; 2d, upon the adjudicated cases.
    The contract of an indorser, or the legal effect of his indorsement is, that if due demand is made of the maker, who refuses to pay, and due notice of that fact be given to him, that he will pay the note. Demand and notice are therefore essential to constitute his liability. This he knows, or is presumed in law to know. And as it is contrary to our ordinary experience in human affairs that a man will promise to pay a demand or admit he is liable to pay it, unless, in fact, he knew he was liable, it therefore follows, as a necessary consequence, that such promise or admission by an indorser must be presumptive evidence that he knew demand and notice were given. Without them he was not liable to pay it, and it is not to be presumed he would promise or agree to pay a debt for which he did npt know he was liable.
    The proposition may be thus stated: “An indorser admits he is liable on an indorsement. The law, from this, presumes he is legally liable. To constitute such legal liability, demand and notice are necessary. Therefore, from such admission, it is necessarily to be presumed demand and notice were given; otherwise the presumption that he was legally liable could hot exist.
    My position is, that when it is proved the indorser promised to pay, or in any manner admitted his liability, from these facts it is to be presumed legal demand and notice were given, because they are necessary steps to make him liable, and, as he admitted he was liable, a fortiori he admits that which makes him liable, or that the necessary steps to make him liable were taken ; and in this I am sustained by the principles both of law and human conduct. A fact is prima facie established, or presumed to exist, when it is proved, not by direct testimony, but where it is inferred or deduced from one or more facts which are directly proved or admitted. A presumption is therefore the inference of a fact, from the existence of some other fact, founded on previous experience of their connection. And this inference may be either certain or not certain, but merely probable, and therefore capable of being rebutted by proof to the contrary. 2 Stark. Ev. 1234. “ Presumptions, and strong ones, are constantly founded on a knowledge of mankind. A man’s motives are inferred from his acts, and his conduct from the motives by which he was known to be influenced.” “ It is,” says Mr. Starkie, “ to be presumed that a rational agent intended the consequences which his own acts tend naturally to accomplish — that he consults his own interest, and if he fays or acknowledges a debt, that it is really due.” 3 Stark. Ev. 1236, 1237, &c., note c.
    This last presumption is direct upon the question. If the in-dorser promises to pay the note he has indorsed, or otherwise admits he is liable to pay it, “ from this,” says Mr. Starkie, “ it is to be “presumed the debt is really due.” Now as the debt cannot be “really due” from the indorser unless demand of the maker was made, and notice of his refusal given to the in-dorser, does it not inevitably follow, from this presumption, that demand was made and notice given ? for, otherwise, the presumption that “ the debt was really due,” could not exist.
    The rule or principle stated by Mr. Starkie is abundantly supported by the authorities. It is a maxim of the common law, “ that men are presumed to act according to their own interest.” Cowen & Hill’s Notes to Phillips’s Ev. Part 1, p. 300, and cases cited. Is it a man’s interest to admit himself liable, when in law he is not liable? Will he admit himself guilty, when in fact he is not guilty ? Will a man, as a general rule, promise to pay a demand, unless he knows that he is legally bound to pay it? Will he settle or agree to settle his indorsement, unless he knows he is legally chargeable upon it? Unquestionably he will not. Will not the maxim “ Omnia prcesu-muntur legitime facia donee probetur in contrarium,” that is, that all things are presumed to be legitimately done until the contrary is proved, apply most forcibly to such case ? This maxim, we are told, (vide cases cited in Cowen &. Hill’s Notes to Phillips, Part I. p. 304,) is of extensive application in the law of presumptive evidence, and where direct proof is beyond the reach of the party, or in cases where it is reasonably not to be expected, comes in aid of numerous defects.
    By the civil, as well as the common law, (vide Domat, Book III. tit. 6, sect. 4, Ar. 7; and James v. Biou, 2 Sim. & Stu. 606.) it is presumed that he who pays a demand, admits he owes or is indebted on that demand, yet this is not conclusive. He may disprove it by showing he was not legally liable, and that he paid it under a mistake of facts. Is payment any stronger evidence of his liability to pay than a promise to pay, or an admission before payment that he was liable 1
    
    Suppose a writing, under the hand of the indorser, is produced, in which he says, “ I am liable to pay such a note, on which I am indorser.” Would this not be evidence that he was legally liable, and consequently be evidence of demand and notice, because that is necessary to make him liable? It would seem, from the principles above stated, there could be no doubt of it. If so, it follows that any promise, or equivalent admission, whether in writing or not, must have the same effect.
    I conclude, therefore, if there was not a single decided case upon the subject, the analogies of the law and old settled principles and maxims would be decisive of it.
    But how stands the question upon authority ? It is believed to be the settled law o,f England for upwards of a century, that a promise to pay or other admission of liability by an indorser, is prima facie evidence of demand and notice. No authority can, it is believed, be found in the'English books which decides the contrary. Many cases, it is true, are to be found in the English reports, where it has been decided that, in addition to the promise or other admission of liability, it must also appear that the party knew at the time he had no notice; but in all these cases, the presumption that due diligence was used, arising from the promise, was rebutted by proof which showed negatively that no legal demand was made or notice was given, and in such,cases, the presumptive evidence arising from the promise; being destroyed, the defendant could not be liable, as no demand and,notice were proved, unless the proof established that he waived it, and, in order to constitute such waiver, it was held he must have been aware of the laches. — This distinction reconciles all the cases.
    The first case I will refer to, is Bundle v. Robertson, 7 East, 231. That was an action against an indorser; there was no evidence of demand and notice, but the proof was, that the defendant promised to pay at one time, and at another time said he had no notice, but as the debt was justly due, he would pay it.
    The opinion of the court was predicated upon the first promise .to pay. Lord Ellenborough said, “ when a man against whom there is a demand, promises to pay it, for the necessary facilitating of business between man and mail, everything will be presumed against him. It was therefore to be presumed prima facie from the promise so made, that the bill had been presented in due time, and that due notice had been given.
    In Potter v. Rayworth, 13 East, the court of the king’s bench again decided, “ that a promise to pay, was of itself presumptive evidence of due notice to the indorser.” The same point was ruled in the following cases : Vaughan v. Fuller, 2 Strange R. 1246; Horfordv. Wilson, 1 Taunt. R. 12; Rodgers v. Stephens, 2 Term R. 713; Wilks v. Jacks, Peake N. P. Cas. 202; Jones v. Morgan, 2 Camp. 474; 'Gibbon v. Coggen, 2 Camp. 188 ; Taylor v. Jones, 2 Camp. 105, 106; Greenway v. Handley, 4 Camp. 52; Wood v. Brown, 1 Stark. 217'; Patterson v. Beecher, 6 J. B. Moore R. 319; Gunson v. Metz, 2 Dow. & Ryl. 334; S. C. 1 Barn. & Cres. R. 193; which establish what is not disputed, “ that when it appears from the evidence the indor-ser was discharged by the laches of the holder, a subsequent provision, if he knew of the laches, would bind him. (Tide cases cited by Cowen, J., 23 Wend. 383.
    Let us next’see how the point stands upon the American'cases.
    In Pierson v. Hooker, 3 Johns. R. 68, the defendant promised to pay the bilí; — the case was not decided finally on this point, but Kent, Ch. J. said, “ if this were now to be decided, it would perhaps be sufficient to refer to the case of Ltmdie v. Robertson, 7 East, 231, in which the very point arose, and the court of the king’s bench held, that where the indorser made a subsequent promise to pay, a previous demand on the drawer and due notice were to be presumed, and need not be proved,” that is, proved by positive testimony.
    And the rule that the promise to pay or other equivalent admission of liability was presumptive proof of the demand and notice, was distinctly decided or recognized in the following cases : Walker v. Laverty, 6 Mun. R. 487; Mills v. Rouse, 2 Lit. 203; Lawrence v. Rollston, 3 Bibb, 102, 104; Martin v. Ingersol, 8 Pick. R. 1; Duboy v. Miller, 3 Mart. 318; Hall v. Freeman, 2 Nott & McCord, 479; Nashr. Harrington, 1 Aikens R. 39; Breed v. Hillhou.se, 7 Conn. R. 523; Higgins v. Morse’s Executors, 4 Dana 11. 100, 103, 104; Hopkins v. Liswell, 12 Mass. R. 52 ; Pate v. McClure, 4 Rand. 164; Kennon v. McRea, 7 Port. R. 184; Tebbittssr. Dowd, 23 Wend. 379. '
    In Kennon v. McRea, 7 Porter, the supreme court of Alabama, in a learned and able opinion, lays dowri the rule thus: “ But a promise or acknowledgment will entirely dispense with proof of presentment and notice; ” (that is, positive proof,) “ and will throw on the defendant, the double burthen of proving laches, and that he was ignorant of it.”
    In Tebbitis v. Dowd, 23 Wendell, the question is ably and learnedly examined, and all the cases, English and American, reviewed, and the rule that a promise is presumptive evidence of demand and notice, is clearly shown to be the law. .
    In opposition to this mass of authority, and I might say, of reason, are the dictum of Spencer, Ch. J., in Trimble v. Thorne, 16 Johns. R. 152, and the case of Jones v. Savage, 6 Wend. R. 658, and Otis v. Hussey, 3 N. H. R. 346. The dictum in Trimble v. Thorne and the case in 6 Wend., were shook by the case of Keeler v. Burton, 12 Wend. R. 110, 118,119; and were finally and conclusively overruled by Tebbitts v. Dowd, 23 Wend., so that the rule in New York is now what it always has been in England. The case of Otis v. Hussey, in 3 N. H. R. is founded on Spencer’s dictum, 16 Johns. R. and upon a supposed different state of things in that state and England. See the review of Trim-ble v. Thorne, Jones v. Savage, and Otis v. Hussey, 23 Wend. 397, 398, 399, 400, 401, 402.
    It is true there are many American cases, wherein the court say, the indorser is not chargeable where there is no demand and notice, by a promise, unless he was aware of the laches, but in all, or nearly all of them, the fact of laches appeared, or if it did not, the principle was merely stated, without reference to the state of the facts, so that there is in reality, no conflict of opinion. The cases I have examined are, Crain v. Caldwell, 8 Johns. R. 384; Duryea v. Dennison, 5 lb. 248; Griffin v. Goff, 12 lb. 424; Sice v. Cunningham, 1 Cow. 397; Middleton v. Haclcey, 5 Johns. 375; Agar v. McManus, 11 Ib. 180; Reynolds v. Byrne, 12 Pet. 497; Thornton v. Wynn, 12 Wheat. 183; Moore v. Coffield, 1 Dev. R. 247; Brown v. Lusk, 4 Yer. R. 210 ; Gregory v. Allen, Mart. •& Yer. R. 74; Price v. Durham, 5 Yer. 300; Donnelson v. Means, 4 Dali. 109. There may perhaps be others, which I am not aware of. These cases do not establish, that the promise or other admission of liability, is not prima facie evidence of diligence. They merely assert that when it appears that in fact there-was no demand and notice, knowledge of this fact, is indispensable to charge the indorser, and this, as 1 have shown, is clearly correct and indisputable.
    In fact, the only debatable question is, whether, when it appears from the proof there was no demand or notice, the plaintiff must, in addition-to the promise, prove affirmatively that the defendant knew it, or whether from the promise itself and the attending circumstances, the jury were not at liberty to infer it. And the current of authority, says Chancellor Kent, is decidedly in favor of the last position. 2 Kent Com.
    2. In most of the cases there was an express promise to pay, but as an express promise to pay is only an admission of liability to pay, from which admission of liability the presumption of regular demand and notice arises, it of course follows, that any act or agreement by which the drawer or indorser admits himself liable, or from which an inference of liability arises, must have the same effect. Nor do the cases make any distinction as to the effect of the prima facie evidence, between a drawer and indorser. Upon principle there could be none, for whatever evidence proved a demand as to the drawer, would also prove it as to the indorser. But where laches is proved, and the evidence is relied on as a waiver, the court in Borradaile v. Lowe, 4 Taunt. Rep., thought an express promise was required to charge the indorser. Sir J. Mansfield says, “In regard to an indorser, I do not find any case where the indorser, after having Seen discharged by the laches of the holder, has been held liable on his indorsement, except on an express promise.”
    This case is not regarded as the law, even as toa waiver •, but clearly never was or can be applied to cases where the promise or admission of liability is relied on as evidence to prove demand and notice, because the force and effect of circumstantial testimony are always for the jury. They are to decide whether the conduct; &c. of the'party amounts to an admission that he was liable.
    In 23 Wendell, 387, the rule is laid down, “ that where no laches appeared in proof, the promise or other equivalent act of the drawer or indorser is prima facie evidence that there was no laches.”
    In Kennon v. M'Rea, 7 Porter’s Rep. the court say the promise or acknowledgment, &c. of the indorser is evidence.
    In 23 Wendell, 387, it is again said, “ that proof of part payment, promise to pay, or when he otherwise admitted himself liable, &c. was evidence,” &c.
    In Vaughan v. Fuller, 2 Strange, it was proved the indorser paid part; and although there was no promise to pay the residue, yet part payment was 'considered as admitting himself liable for the balance, and was evidence, See. of demand, Sec.
    
    
      So where the indorser said “ the bill will be satisfied,” although there was no express promise, yet, as it admitted his liability, it was held evidence of demand and notice. Margetson v. Aitken, 3 Car. Se Payne, 338; Danson Se Lloyd R. 157.
    So where the indorser, when applied to for payment, said “ he would set the matter right.” Anson v. Baily, Bul. N. P. 276. In a late case, to wit, Gunson v. Metz, 8 Com. Law Rep. 58, it was held an acknowledgment of liability was sufficient evidence of demand and notice.
    So where the indorser promised to pay eight shillings in the pound. Dixon v. Elliott, 5 Car. &. Payne, 437.
    In these cases there was no express promise, but the facts showed or proved an admission of liability. So if he were to say, I admit I am liable, or I am liable on this indorsement, or I owe the debt, or I will confess judgment, or agrees to let judgment be entered up by default, — all these amount to a direct and plain admission that he is liable on his indorsement, and are, consequently, evidence •prima facie of demand and notice.
    But if the language or acts relied on be doubtful or equivocal, the course in England is to leave the question on the force and effect of the evidence to the jury. 23 Wend. 403; Booth v. Jacob, 3 Nev. & Man. 357; Hicks v. Beaufort, 4 Bing. New Cas. 229.
    
      Prentiss and Guión, for appellees.
    The bill of exceptions shows, that on the trial it was proven by the plaintiffs, to supply the want of proof of demand and notice, that Harrison, the accommodation indorser of the note sued on, being threatened after the maturity of the note with suit in the federal court, promised the attorney of the plaintiffs, if he would bring suit against him, and Pinckard the drawer, of the note jointly, in Warren circuit court, they would let judgment go by default. Plaintiff’s attorney accordingly brought suit in Warren circuit court, but Pinckard refused to let judgment go by default, and plead to the action. Whereupon defendant Harrison also refused to give judgment by default, but plead, objecting to plaintiff’s recovery, on the ground of want of proof by them of demand of payment from the drawer, and notice to him as indorser. The jury found for defendant.
    Upon the state of facts presented, defendant makes the following points :• 1. That the agreement of the indorser Harrison to let judgment go by default against Pinckard the drawer of the note and himself, provided they were sued in the state court, even though it was equivalent to a promise to pay, was neither a waiver of demand and notice, nor presumptive proof thereof; and that plaintiffs were bound to have proven, affirmatively, that such agreement, if it amounted to anything, was made with full knowledge on the part of Harrison, that he was discharged by the laches of the plaintiffs. Trimble v. Thorne, 16 Johns. 152; Jones v-. Savage, 6 Wend. 658; Otis v. Hussey, 3 N. Hamp. 346.
    It is true the cases in Johnson and Wendell have been overruled in part by the case of Tebbitts v. Dowd, 23 Wendell, 376, and the elaborate opinion of Judge Cowen, in the latter case is certainly entitled to much consideration; but it may well be questioned whether the rule laid down in Trimble v. Thorne, be not still the better authority.
    2d. Harrison’s agreement that he and Pinekard, the drawer of the note, would let the judgment go by default, provided suit was brought against them in the state court, was not a promise by Harrison to pay the debt, nor an acknowledgment of his liability therefor.
    All the cases require a new promise to pay, or something equivalent thereto, such as an admission of the debt, or of the justness of the demand.
    In this case Harrison was threatened with suit in the federal court, where he would have been sued alone. He promised plaintiff’s attorney, that if suit was brought in the state court, against him and the drawer of the note, jointly, they would let judgment go by default. He might have considered that Pinck-ard was good, that the money could be made out of him, and therefore it was better to let judgment go, than to resist it. Indeed, it is in evidence, that had judgment gone as agreed, the amount could have been made out of the drawer. But the drawer refused to accede to the agreement, and Harrison defended the action. All that can be said is, that he violated his agreement with plaintiff’s attorney, and may perhaps be liable for damages on that score; but that is not the question. Was the agreement a promise to pay the note? Was it an admission of the debt, or of his liability for it ? It seems to me that it does not involve the affirmative of either of these questions.
    
      If I am correct, then, it does not afford any presumptive proof of demand and notice, nor does it come within the scope of the decision of Tebbitts v. Doiud.
    
    3d. The. bill of exceptions does not appear, or purport to have been taken during the trial, and before the verdict.
    On the contrary, it shows on its face, that it was not taken until after the verdict, for it recites that a motion was made for a new trial, and excepts to the overruling of the motion.
    This is a fatal defect, and the bill of exceptions cannot be noticed by' the court. Tide Patterson v. Phillips, 1 How. 572 ; Walton v. United States, 9 Wheat. 651; Lane v. Merrills, 6 Wend. 268; Biggs v. Mcllvain’s Ex’rs. 3 Marsh. Ky. R. 360.
   Mr. Chief Justice Shaeeey

delivered the opinion of the court.

There are two cases between the same parties, which have been submitted together, the same questions being involved. The suits were brought by the plaintiffs in error, on two promissory notes against Pinckard the maker, and Harrison as the indorser. There was a verdict against the maker, but the jury found in favor of the indorser.

The plaintiff introduced no proof of notice to the indorser, but relied on his subsequent promise, as sufficient to charge him., William A. Lake stated that the notes were left with him for collection; that at their maturity, Pinckard' promised to pay on them eighteen hundred dollars, in case he could be indulged twelve months to pay the balance, which indulgence was given with the consent of Harrison the indorser.' After the stay expired, the attorney informed Harrison that the money was not paid, and that he should bring suit against him in the United States court, as he would probably be able to get judgment sooner. Harrison objected to that, and begged the attorney to sue in the Warren circuit court, saying that he would obtain Pinckard’s consent to let a judgment by default go at the first term. Harrison went to see Pinckard, and soon afterwards returned with Pinckard’s assent, and distinctly promised that judgment by default should go against them. The attorney accordingly instituted suits in the» Warren circuit court. At the next term of the court, whilst the court was calling the appearance docket, Harrison asked the attorney if the cases had been reached, whereupon the papers were called for, arid it was found that Pinekard had filed a plea, and thereupon the attorney and Harrison, went to Pinckard’s attorney, to whom Harrison stated the agreement with Lake. The attorney who had filed the plea, refused to withdraw it, and Harrison again said that he would see Pinekard, and have it withdrawn, but as Pinekard refused, the plea was not withdrawn, and the cases stood continued. The witness stated that Harrison never denied his liability, during the life-time of the notary, who had died since suit brought, and that the defendant was the same Harrison who was cashier of the Commercial and Railroad Bank when one of the notes was protested.. The attorney who filed the plea was also dead, but had been examined on a former trial, when he stated that he was not specially employed to file pleas in these cases, but being the general attorney for Pinekard, he did so to prevent judgment by default. He also stated that Harrison applied to him to withdraw the pleas, and to let judgment go by default, stating that he wished it to be done, but he did not do so in consequence of Pinckard’s refusal.

Bibby, a witness, proved that the notes remained in the bank during business hours of the day of their maturity, and that Maxy, as the notary of the bank, was in the habit of attending regularly to the business of the bank. That no provision was made for the payment of the notes at their maturity. This is the substance of the evidence, so far as it is material in the present controversy.

The plaintiff’s counsel moved for the following charges, amongst others, which the court refused to give; to wit: “ That if the indorser admitted his liability, knowing that notice had been given, the jury should find for the plaintiffs, or if they believed no notice was given, and, knowing that, he admitted his liability, then they must find for the plaintiffs, and that his knowledge of the fact, whether notice was or was not given, might be inferred by the jury, from his promise, and the attending circumstances, and did not require affirmative proof of such knowledge. If they believed, from the evidence, that Harrison admitted his liability, such admission would be sufficient to charge him, in the absence of proof that legal notice was not given. If they believed that Harrison’s admissions and conduct amounted to a waiver of notice, then they should find for the plaintiffs. If he admitted or acknowledged his liability as indorser, hé would. be prima facie liable, and if was for the defendant to prove that there was no notice, and in the absence of such proof, the jury ought to find for the plaintiffs. ■ That if Harrison promised to pay the notes sued on, or acknowledged his liability, it dispenses with proof of actual notice on the part of the plaintiffs, and was sufficient to charge him, unless it also appeared that no legal notice was given; and that it was for the jury to say, under all the circumstances, whether the evidence amounted- to an admission of -liability, or a waiver of notice.”

In testing the correctness of these charges, we are necessarily led' to determine the effect of a subsequent promise to pay, by the indorser of a note or bill. That such a promise, made with a knowledge of the laches of the holder in giving notice, will bind the indorser, is admitted on all hands; but a difficulty sometimes arises in applying the rule. This question has recently undergone an investigation, which, if authority is entitled to any weight, must put it at rest. In. the case of Tebbitts v. Dowd, 23 Wendell, 379, this identical question was before the court, and Mr. Justice Cowen, with an ability and research unsurpassed, has laid bare- all the law on the subject, and furnished a criterion in applying it, which cannot be mistaken. Beyond this case, it i,s needless to go for authority. He has reviewed all the English and American cases, reaching back for more than a century, and by them, fully sustains himself, with the exception of three cases in some of the state courts, out of some scores referred to. In the English cases there seems.to be no exception. With the aid of his lucid classification of the cases, there can be no difficulty in perceiving, at a single glance, how the rule has worked, and should work, in fixing the liability of a promising indorser. Such a promise is considered first, as a waiver, and secondly, as presumptive evidence. When it appears affirmatively, that the holder has been guilty of neglect, and has omitted to give the proper notice, then a subsequent promise operates as a waiver of regular notice. A difficulty may sometimes arise under this head, as to the proof that such promise was made by the indorser with a knowledge of his discharge. On this point there is some con-fliction in the authorities, some of them holding that, it is incumbent on the defendant, who has made such promise, to prove that the notice was irregular, and also, that he promised in ignorance of his exoneration, whilst others seem to incline to the opinion that it is incumbent on the plaintiff to prove that the promise was made with a knowledge of the irregularity in giving notice. We are not called on, however, to consider the force of this promise as a waiver, inasmuch as there is nothing in the record, either from the one side or the other, which shows an irregularity or omission in giving notice; there is an entire absence of proof on this subject, except what is derived from the promise, for on this alone, the plaintiffs relied. We are to consider of the promise under the second head, made by the learned judge; to wit: as presumptive evidence, for under this head alone, is it embraced by the charges asked of the court. The plaintiffs sought to use the promise as a medium through which the jury might infer that due notice had been given. Judge Cowen says, that under such a state of case, he regards the law as being well settled, that it is competent for the plaintiff to prove a promise or admission, and to ask the jury to infer from it both demand and notice, and that as a matter of evidence, it is sufficient to authorize such an inference. Indeed he shows from authority, that every diversity of fact necessary to charge an indorser, has been inferred from such a promise. It has even been held sufficient to justify the inference, that there were no funds in the hands of the drawer of a bill of exchange. Common experience teaches us that men are not apt to .promise payment unless they know they are liable to pay, and when such a promise is given, it affords the fairest presumption of legal liability. As a matter of presumptive evidence, a promise to pay was held sufficient to charge an in-dorser in the case of Vaughan v. Fuller, 2 Strange, 1246, decided as early as 1746. The question seems to have been fully considered and settled in the same way in 1806, by Lord Ellen-borough, in the case of Lundie v. Robertson, 7 East, 231, which is now regarded as a leading case, and the authority of which has never been questioned. The court refused to charge in accordance with the principle as settled by these authorities, which, assuming that there was a promise of payment, was error.

That a promise or acknowledgment of liability was shown by the evidence, is a matter too clear to admit of dispute. When the indorser was first applied to, he consented that a year’s indulgence should be given. When the year expired, and he was threatened with a suit in the United States court, he begged to be sued in the circuit court of Warren county, and promised that if the suit was so brought, the plaintiff should have a judgment by default, at the return term. At that term he even requested the attorney of Pinekard to withdraw the plea and let the plaintiff have a judgment by default, and stated that this was the agreement between himself and the plaintiff’s attorney, and he wished it to be consummated. Surely a promise to let a judgment go by default, under the circumstances, was equivalent to the most unqualified promise of payment. Nay, it was more; it was a full admission that the defendant had no defence whatever to make.

There are other circumstances in this case, which would be entitled to much weight if it were necessary to notice them. The notary, it seems, died after suit brought, and before trial, and in such cases it is competent to resort to secondary evidence. This may account for the inability of the plaintiff to prove notice, and furnish a reason why no such proof was attempted. Under such circumstances it is peculiarly proper to open the door for the admission of presumptive evidence, and the promises of the defendant were sufficient to raise the strongest presumptions against him. That this presumptive evidence, like all other evidence of that character, may be rebutted, is clear enough. It is not conclusive. The defendant may relieve himself by showing that no demand, was made; or if he can, that no notice was in fact given. If he can do this, then the question will arise, whether the promise does not amount to a waiver.

A technical objection is taken that the bill of exceptions was not signed at the proper time, or pending the trial. This might be available, but the bill of exceptions also shows that the plaintiffs moved for a new trial, and that the exceptions were taken to the overruling of the motion. This brings it within the provision of the statute which authorizes the taking of exceptions to the overruling of such a motion, which of course cannot be done until the trial is concluded and the motion decided.

The judgment must be reversed'and the cause remanded.  