
    BENJAMIN F. SMITH, Respondent, v. J. O. P. LOWNSDALE, Appellant.
    Waiver. — Waiver of demand and notice may be mkde by parol.
    Idem — Indorser — Promise by, aeter Failure to Protest. — A promise to pay made after maturity, -with knowledge that demand and notice of non-payment had not been made, removes the effect of any negligence in making demand or in giving notice.
    
      Security — Eeeect oe Taking by Indorser. — -An indorser who has taken sufficient security to protect himself against possible loss waives his legal right to require proof of dgmand and notice.
    Practice. — Permitting a jury to take a written charge to the jury room: " Held, to be bad practice.
    Appeal from Multnomah County.
    This action was brought by Smith against Lownsdale on a promissory note executed by one Cooper to Lownsdale, and by him indorsed to Smith. Lownsdale took from Cooper and wife a mortgage to secure him against loss on account of the indorsement, and still holds the security. No demand was made and no notice given. Cooper became insolvent, and died after the maturity of the note. Issue was joined as to waiver of demand and notice by Lownsdale. After the complaint was filed a motion was made by counsel for Lownsdale to strike out a certain allegation contained therein, which is set out in the opinion, and the denial of said motion is charged as error. The bill of exceptions shows that respondent offered testimony tending to prove that appellant, before the maturity of the note, requested respondent not to protest it at maturity, and promised that he would pay the same without demand and notice of non-payment, and would waive the same as he had security for his liability. Respondent then offered the mortgage from Cooper and wife to' appellant, and the court overruling objections to its admission admitted the same, and at the time expressly charged the jury that the taking and existence of the same could not be deemed a waiver of demand and notice on the part of Lownsdale, nor any excuse for Smith’s neglect to demand payment of the maker and give due notice of the n&n-payment, and was to be considered by the jury as illustrating or explaining the oral testimony of the plaintiff, and for the purpose of aiding the jury in determining the truth concerning the alleged conversation between plaintiff and defendant. Admitting the mortgage and giving this instruction were excepted to and are charged as errors. When the jurors were ready to retire the court allowed them to take the general charge, which had been reduced to writing, with them to the jury room, overruling applicant’s objection thereto. This is also charged as error. The verdict was for Smith, who had judgment accordingly. *
    
      Hill, Durham & Thompson, for appellant:
    The court erred in allowing the mortgage referred to to be read for any purpose. (Cramer v. Perry, 17 Pick. 332.) It was error to allow the jury to take the written instructions of the court to the jury-room, when they retired to deliberate upon their verdict. (Civ. Code, secs. 202, 203; Farmers’ and Mechanics’ Bank v. Whinfield, 24 Wend. 420; 1 G. & W. on New Trials, 70.)
    
      Gatlin <& Filien, for respondent:
    An indorser who is secured is not entitled to demand or notice, and the issue concerning demand and notice was an immaterial one. (Story on Prom. Notes, sec. 357; 3 Kent, 113; Story on Bills, sec. 374: 1 Pars, on Cont. 271, and authorities there cited; Bank v. Griswold, 7 Wend. 166.)
   By the Court, McArthur, J.:

The first error assigned is in denying appellant’s motion to strike out the following allegation from the complaint: “That about the last day of August, 1871, and at various times since, the defendant has promised and agreed to pay such note.” We think -there was no error in this ruling. L. was an indorser, and he had a right to insist upon demand and notice of non-payment as a condition precedent to the attaching of any liability to him. But this right he could waive before maturity and by parol. (1 Pars. N. and B. 584.). And however much denied and debated heretofore, we take it to be now settled that a promise to pay, made after maturity, the note in this case matured November, 1868, with knowledge that demand for payment and notice of non-payment had not been made, removes entirely the effect of any negligence in making demand or in giving notice. (1 Pars, onN. and B., 595.) And we are of opinion that the allegations of the complaint were sufficient to let in proof of defendant’s knowledge of these facts.

Though there is a conflict of authorities upon the question of demand and notice to an indorser who has taken security sufficient to protect himself against possible loss, Chancellor Kent and Justice Story maintaining the affirmative, and Mr. Parsons dissenting from their views, we think the weight of authority clearly is that if an indorser, before or at the maturity of the bill, has protected himself from loss by taking sufficient collateral security of the maker, it is a waiver of his legal right to require proof of demand and notice. (3 Kent’s Com., 10 ed., 163; Story on Prom. Notes, secs. 281, 357; 1 Pars, on Cont., 5 ed., 271, note j.) Mr. Parson’s views will be found in the first volume of his work on notes and bills, p. 571 et seq. Following the weight of authority, we think it was entirely proper for the court to admit the mortgage in evidence for the purpose of sustaining the affirmative of the issue in relation to waiver of demand and notice. Despondent could have urged its admission and relied upon it for a more effective purpose. The special oral charge of the court in submitting the mortgage to the jury, though not in accordance with our view of the law, was not an error that affected the rights of the appellant; its entire effect was to limit and abridge the respondent’s rights. It could not possibly have prejudiced the appellant’s case with the jury.

There remains but one other question to consider. The court, at the request of counsel, had reduced the general charge to writing, though the special instruction given at the time the mortgage was admitted was oral. The jury were allowed to take with them to their room the written charge. While as a matter of practice we do not approve this, we are unable to find any statute expressly or by necessary implication forbidding it. Section 202 of the code does not meet the question. That applies to the pleadings and the evidence, and does not directly or indirectly refer to the charge to the jury. The intention of prohibiting the court from submitting to the jury a general written charge could not have been in the legislative mind when section 202 was enacted (Oct. 11, 1862), for the written charges to juries were not part of our system until the amendment of subd. 6, sec. 194 of the code, which was approved October 20, 1864.

It is conceded that the law of the case was clearly and correctly stated in the written charge; therefore, in this particular instance, nothing prejudicial to the substantial rights of the appellant could have resulted from the act.

Judgment affirmed.  