
    
      John H. Schmidt v. John T. Radcliffe.
    
    There had been no formal demand upon the maker of the note, but upon its being presented to the endorser, he said he would try to get the money out .of the maker, and if he could not, “ he would have to pay it himself, as he was the endorser of the note” — held that the promise amounted to a waiver of a regular demand and notice.
    A promise, by the party entitled to notice, to pay the bill, is deemed a full and complete waiver of the want of due notice: but in all cases of this sort, the promise must be unequivocal, and amount to an admission of the right of the holder; or the act done must be of a nature clearly importing a like admission of his right. Story on BiUs, 363, See. 320.
    Where a man promises to pay a dishonored note, it is proof that every thing necessary to fix his liability had previously taken place; and if he is to have any benefit of his promise being made in mistake, he must show that the antecedent facts to his liability did not occur, and, therefore, that he was discharged when he made the promise; then if he can show that he was wrongly instructed in the law, and his promise was made in mistake of the law, it may avail him; otherwise not.
    A promise to pay, made after a bill becomes due, is considered an admission of a regular presentment for payment, and of due notice, or at least, waives the objection, because the party must be supposed to have known when the bill became due, and must have actually known, or might readily have ascertained, the fact, whether or not there had been laches; and therefore, when such a promise has been made, the plaintiff may avail himself of it without proving that the defendant knew that the bill had been actually presented and refused. Chit, on BiUs, (10th Amer. from the 9th London Ed,) page 504.
    
      
      Before the Recorder, in the City Court of Charleston, July Term, 1849.
    REPORT OP THE RECORDER.
    This was a summary process against the defendant, as the endorser of a promissory note. There was no evidence of a formal demand on Cramer, the drawer of the note, on the day it became payable, or at any subsequent time, but the plaintiff relied upon the proof of defendant’s subsequent admissions and promises to pay, as dispensing with the proof of a regular demand, and as sufficient to make him liable as endorser to pay the. note. The note was dated 19th April, 1848, for sixty dollars, at sixty days, payable to the defendant, or his order, and by him endorsed to the plaintiff.
    The following testimony was offered by the plaintiff.
    
      George Wood, sworn.
    Said he presented the note in question to the defendant in February last, about the time of the Races in Charleston; the defendant said he had not settled his affairs yet with Cramer, but he would see Cramer, and try to get the money out of him, and if he could not, he would have to pay it himself, as he was the endorser of the note ; witness called the next day, and saw him again ; he saw defendant a third time; defendant told witness to tell the plaintiff that he had not got the money yet, but that he would call up,-pay the interest, and give a new note, payable on the 15th (of March, I infer,) when he would get his money from, the '.City Council.
    
      P. McIntyre,, sworn.
    Witness called, in behalf of plaintiff, on thé defendant just after the Races in February last, to dun him; witness had the note with him; defendant said he would see Mr. Cramer — thought he had a right to pay it; plaintiff told witness to take the interest from defendant, and take a hew note, if he could do no better; witness called on defendant with this message, and made the proposition to him ; defendant said he would see Cramer.
    Upon this testimony, I decreed for the plaintiff. It is clear that the endorser of a note may dispense, beforehand, with demand and notice. It is equally clear, to my mind, that where the endorser is aware that no regular or formal demand has been made on the maker and notice given to him, and, under a knowledge of these facts, promises to pay the note, he is bound by such promise, and the promise to pay stands in the place of and supplies the proof of a regular demand and notice.
    The only question which arises is, how is the fact to be shown, that the promise was made under a full knowledge, on the part of the endorser, oí a want of due diligence on the part of the holder ? Must this knowledge always be shown substantively and positively, by express testimony, on part 0£ qle plaintiff, or may it be inferred from all the attending circumstances of the particular case ? There is, per-lraps, some doubt upon this subject, and the cases not always reconcileable. But we have the authority of Chancellor Kent, in his Commentaries, “ that the weight of authority is, that this knowledge may be inferred, as a fact, from the promise, under the attending circumstances, without requiring clear and affirmative proof of the knowledge.” Taking this to be the rule, .what are the facts and circumstances from which I infer, in this case, the knowledge of the defendant, that no regular or formal demand (evidenced by protest or otherwise) was made ? The note in this case became payable on the 23d of June, 1848. ' All the parties lived in Charleston. The defendant; it appears by the testimony of Wood, had unsettled affairs with Cramer in February, 1849, and said he would have to make arrangements with him. He requested time for interviews with Cramer on the subject, and, it is to be believed, (in good faith) that he had them, if not before, at least during the period covered by the testimony in regard to the defendant’s admissions, and the promise which he made to pay the note. The very lapse of several months after the note became payable, considering the intimate relation of the parties, instead of weakening, in my mind, strengthens the conclusion, that when the defendant made his promise in February, 1849, he was as well aware of all the facts in regard to the note, as Cramer or the plaintiff himself. Had the promise been made very shortly or immediately after the note became payable and should have been presented, there would be so much the less reason to infer the defendant’s knowledge of the circumstances.
    As no question is made by the grounds of appeal especially as to the effect of the defendant’s acknowledgment or promise, 1 will only add on that subject, that Wood swears that defendant said “he would call and pay the interest, and give a new note, due on the 15th, when he would get his money from the City Council — connected with the testimony of McIntyre, who says he called on the defendant to complete, and offered to complete, the proposed arrangement. I regarded the promise as equally positive and unequivocal as though the defendant had said in so many words, “ I will pay the note.” See the cases on this subject, collected in Chitty on Bills, (9th Am. ed. p. 534.)
    The defendant moved the Court of Appeals for a new trial.
    1st. On the ground, that there was no demand on the maker of the note, nor notice of non-payment given to the endorser for several months after the note became due.
    ,2d. Because the promise made by the endorser to pay, was made in ignorance that there was no demand made on the maker of the note. (
    3d. Because the decree was contrary to law and evidence.
    
      Cogdell, tor the motion.
    
      Gyles, contra.
   Curia, per O’Neall, J.

The rule that “a promise by the party entitled to notice, to pay the bill, is deemed a full and complete waiver of the want of due notice,” seems noWp to be settled law. It is, however, subject to the qualification. stated in the same section, “in all cases of this sort, the promise must be unequivocal, and amount to an admission of the right of the holder; or the act .done must be of a nature clearly, importing a like admission of his right.” The defendant’s first conversation with George Wood, seems to me to fully sustain the case under this qualification. For he tells him, on the note being presented to 'him, “ he would see Cramer and try to get the money out of him, and if he could not, he would have to pay it himself, as he was the endorser on the note.” This was a plain admission'of his liability, and the plaintiff’s right to receive the money from him. This is not questioned' by the defendant, but, it is said, unless he knew, when he made the promise, that he was discharged by. the laches of the holder, the promise would . not bind him! This may be generally true, and yet not avail the defendant... For if he knew, or must be legally regarded as knowing the facts, (if they existed), out of which his discharge would have followed, then his promise will be binding. The note here was due June, 1848 — this promise or admission was February, 1849. If the note had not been presented to the maker, payment demanded, and notice given to the endorser, it would seem' that, in seven or eight months, the defendant would have known all about it, especially as the most interesting thing to him was, that these facts should have been communicated to him to fix his liability. It is no answer to say, he did not know that there must be a demand of payment from the maker when the note fell due, and notice to him of that fact, and the non payment, in order to make him liable! If he knew the facts, he is presumed to know the law — mere ignorance of it is no excuse. The true notion is, however, when a man promises to pay a dishonored note, that this is proof that every thing necessary to fix his liability had previously taken place; and if he is to have any benefit of his promise being made in mistáke, he must shew that the antecedent facts to his liability did not occur, and, therefore, that he was discharged when he made the promise; when if he can shew, as in Lawrence v. Beau-bien, that he was wrongly instructed in the law, and his promise was made in mistake of the law, it may avail .him; otherwise not.

Mr. Chitty in his treatise on Bills says, “ a promise to pay, made after a bill becomes due, is considered an admission of a reSu^ar presentment for payment and of due notice, or at least waives the objection, because the party must be supposed to have known when the bill became due, and must have actually known, or might readily have ascertained the fact, whether or not there had been laches; and, therefore, when such a promise has been made, the plaintiff may avail himself of it, without proving that the defendant knew that the bill had been actually presented and refused.” This covers the whole ground, and is a just understanding of the cases decided on this question.

The motion is dismissed.

Richardson, Evans, Waedlaw and Frost, JJ. concurred.

Motion refused.  