
    Solomon Hopkins versus James Liswell.
    If an indorser of a negotiable promissory note, with the knowledge that no demand has been made on the promissor, undertakes to pay the same notwithstanding, he is holden; and the jury may presume such knowledge from circumstances in evidence.
    Assumpsit against the defendant as indorser of a promissory note signed by-Arnold, and made payable to the defendant or bis order, in three months from its date, which was the 14th of April, 1812, with interest after the expiration of that term.
    At the trial, which was had on the general issue, before the Chief Justice, at the last November term in this county, it appeared, that Arnold, the maker, lived at Bath, in the county of Lincoln. The defendant, at the time of making the note, lived in Boston, but had since removed to Harvard, in the county of Worcester. At the time the note was made and indorsed, the plaintiff expressed his [ *53 ] * unwillingness to trust Arnold, not knowing him, and he not living in Boston, nor having any place of business ; and stated that he should rely altogether upon the indorser, who was then present.
    When the note became due, no demand was made upon Arnold, nor was there any evidence of an attempt to call upon him. A day or two afterwards, however, notice was sent to the defendant, that the note was not paid. The defendant then went to the plaintiff, and asked him to let it lie over until he could hear from Arnold, and, afterwards, when called upon for payment, said, he had just been paying off a mortgage, and wished for delay, until he could get the money ; stating, also, that he expected a cargo of lumber, wished the plaintiff not to sue him, and he would pay the note in a few days.
    The jury were instructed, that, if they believed that the defendant, when he made the promise to pay, knew that no demand had been made upon Arnold, which they might presume from bis living at a distance, and his having no place of business in Boston, and his being a brother-in-law of Arnold, as was proved in the case, and which they might also presume from what took place at the making of the note, they would find their verdict for the plaintiff; which they did. and the defendant moved for a new trial.
    
      Munroe, for the plaintiff.
    
      Parker, for the defendant.
   Per Curiam.

We have no doubt that the to pay the note, which was proved at the trial, amounted to a waiver of any excuse on account of the want of demand upon the promissor. A promise of this sort, to be binding, must be made with a knowledge of the circumstances which operate to discharge the party ; and the jury, in this case, have decided that there was such knowledge.

There is no doubt that the defendant, at the time of indorsing the note, intended to be responsible, even if there should be no call upon Arnold; and, although he cannot be holden as guarantor upon a note, which he in form had signed * as indorser, [* 54 ] vet be may be liable as indorser, without the usual conditions having been performed by the holder, if he expressly waive the performance of those conditions.

All the cases cited by the defendant’s counsel show, only, that such subsequent promise, to be binding, must be made with a knowledge of the want of compliance with the necessary formalities ; but, with that knowledge, there is no doubt that such a promise is binding.

Judgment on the verdict. 
      
       7 Mass. Rep. 449, 483. — 9 Mass. Rep. 205, 408. — 4 Mass. Rep. 342. — 6 Mass. Rep. 524.—1 D. & E. 712. — 5 Burr. 2670. —1 B. & P. 326. —10 Mass. Rep. 52.— Bailey on Bills, 79.
     
      
      
        Bayley on Bills, 5th ed., 292, 293. — Thompson on Bills, 571.—4 Taunt. 98.
     