see why the effect of these words is not to make him a surety, and consequently not entitled to ordinary demand and notice. The word "backer," placed after the indorser's name, has also been held to be no waiver of demand and notice.(7)

In short, whatever words constitute a guaranty will be a waiver of regular demand and notice; because, as will be seen,(m) the ordinary rules with regard to demand and notice are inapplicable to guaranties. What form of words amounts to a guaranty will be considered subsequently.(n)

But although an instrument purporting to constitute a waiver is to be fairly construed, yet it cannot be extended beyond the import of its terms. Thus, a waiver of notice is not a waiver of demand,(o) because the two have meanings entirely distinct from one another, and it would be an unauthorized stretch of construction to declare them equivalent. We have seen that the words" eventually accountable" have been said to be a waiver of both demand and notice,(p) but where there are other words which limit and define these, the case may be different. Thus, "I hold myself accountable, and waive all notice," have been held to imply waiver of notice alone; (q) because all the words taken together show such to be the intent. But an agreement

(1) Seabury v. Hungerford, 2 Hill, 80. (m) Infra, chapter on Guaranty.

(n) Infra, chapter on Guaranty.

(0) Berkshire Bank v. Jones, 6 Mass. 524; Dewey, J., Low v. Howard, 11 Cush. 268, 270; Drinkwater v. Tebbetts, 17 Maine, 16, where the words were, Holden without notice"; Burnham v. Webster, id. 50, where the words were, "I hold myself accountable, and waive all notice"; Lane v. Steward, 20 id. 98; Buchanan v. Marshall, 22 Vt. 561. See Backus v. Shipherd, 11 Wend. 629. Contra, Matthey v. Gally, 4 Calif. 62.

(p) Supra, p. 579.

(9) Burnham v. Webster, 17 Maine, 50, where Shepley, J. said: "In this case there is a waiver of notice, but not of presentment, unless the words, 'I hold myself accountable,' taken in connection with the other words used, can be considered as dispensing with a presentment. The inquiry is suggested, How accountable? And the answer would seem necessarily to be, I waive all notice, and hold myself accountable. This answer employs every word of the instrument, only transposed, and gives to each its proper meaning. To give a different answer to the question, and say, I hold myself accountable absolutely, would dispense with the words "and waive all notice," giving to them no meaning. To answer, I waive all notice and demand, would be to give greater effect to the words than the decided cases permit. The indorser may say, 'I did indeed waive all notice, and held myself accountable, but I never did waive a presentment, and now insist upon it'; and the court cannot, consistently with the decided cases, deprive him of the right to make such an answer.'

by an indorser to consider himself responsible without requiring notice, if the note could not be collected of the maker by due course of law, has been held a waiver of both demand and notice.(r)

Bills may be drawn "acceptance waived." This does not deprive the instrument of its character as a negotiable bill of exchange, but its effect is simply to merge the ordinary proceedings on acceptance or non-acceptance into those of payment or non-payment.(s)

The waiver may be written upon the note or bill at the time of signing; or after that time and before maturity,(t) in which case no consideration is necessary, because the indorser would be estopped from setting up in defence a want of demand or of notice; (u) or the agreement may be upon a separate paper,

(r) Backus v. Shipherd, 11 Wend. 629.

(s) See English v. Wall, 12 Rob. La. 132; in Denegre v. Milne, 10 La. Ann. 324, Slidell, C. J. said: "We do not consider the expression 'acceptance waived,' as stripping the instrument of the character of a bill of exchange, or depriving its signers of the character and rights of drawers of a bill of exchange. These were merely qualified, and to this extent; the insertion of these words created between the drawers and the payee, and those subsequently taking the bill, an agreement that the drawees should not be required to accept the bill upon its sight. Without these words, it would have been the holder's right to insist upon an acceptance upon presentment, protest the bills if acceptance were refused, and take his immediate recourse against the drawers. With them, he had only the right to exhibit the bill for sight, to fix the date of maturity, which was done; and was bound to wait until maturity for payment by the drawees, at which time the drawers engaged it should be paid by the drawees. Upon failure of payment, protest, and notice, the liability of the drawers, which was previously conditional, would, in general, become absolute. No adjudged case militating with this view of the rights of those parties has been referred to or cited; and we are satisfied that the construction we give would be in accordance with the understanding of men of business, and meets the understanding of the parties themselves when the bill was drawn and negotiated. The validity of the instrument as a bill of exchange, its essential character as a bill of exchange, are not destroyed by such a qualification. It is still a request to the drawee by the drawer, to pay a sum of money to the payee, or his order, absolutely, and at a time mentioned in the bill."

(t) Wall v. Bry, 1 La. Ann. 312.

.....

(u) In Wall v. Bry, 1 La. Ann. 312, Slidell, J. said: "It is proved that the indorsement of the defendant was made some months anterior to the indorsement and signatare of the waivers. The defendant urges that it was not binding, because made without consideration. The plea that the waiver was without consideration cannot avail the defendant. It was made before the maturity of the note; the holder may have regulated his conduct, in not protesting the note, by the defendant's waiver, confiding in it; and to relieve him from it now would be sanctioning a breach of good faith, and permitting that party to gain by his own disingenuousness."

contemporaneous with, or subsequent to, the indorsement, (v) or even before the note is indorsed.(w)

2. When the Waiver is inferred from Acts of the Indorser or Drawer.

Demand and notice may be waived by an act of the indorser or drawer, calculated to put the holder off his guard, and prevent him from treating the note as he would otherwise have done.(x) Or where the indorser or drawer has himself been the means of preventing the note or bill from being honored.(y) Thus, when the indorser received a written agreement from the holder, in which the latter promised to sue the makers, and to use all due diligence to collect the note from them, demand and notice were held to be waived. (2) Also, where the indorser, by agreement with the holder, agreed to extend the time of payment. (a) Or where such agreement, for a valuable considera

(v) Spencer v. Harvey, 17 Wend. 489, where the indorser wrote to the holder a few days before maturity, stating that the maker had failed, acknowledging his liability, and asking an indulgence until funds could be realized from security given by the maker. Held a waiver of demand and notice. Coddington v. Davis, 1 Comst. 186, 3 Denio, 16; Duvall v. Farmers' Bank, 7 Gill & J. 44, 9 id. 31. (w) See Union Bank v. Hyde, 6 Wheat. 572. For the words of this agreement, see supra, p. 576, note e. The case does not, however, state whether the instrument was signed before the note in suit was indorsed. See also Duvall v. Farmers' Bank, 7 Gill & J. 44, 9 id. 31, where there was one note not indorsed until after the agreement.

(x) Gove v. Vining, 7 Met. 212; Spencer v. Harvey, 17 Wend. 489; Bruce v. Lytle, 13 Barb. 163; Taylor v. French, 4 E. D. Smith, 458; Phipson v. Kneller, 1 Stark. 116.

(y) Minturn v. Fisher, 7 Calif. 573.

(z) Kyle v. Green, 14 Ohio, 490. In Benoist v. Creditors, 18 La. 522, the drawer took a receipt from the payee, in which it was agreed that the bill should not be protested, in order to save costs. The funds for which the bill was drawn were then in litigation. Held that notice to the drawer was not necessary.

(a) Amoskeag Bank v. Moore, 37 N. H. 539, where the indorser, a few days before maturity, signed the following agreement at the foot of the note: "Sept. 25, 1855. We hereby agree that the above note may be extended for sixty days from this date." On the 25th of September the makers paid the plaintiff the interest in advance for the sixty days, which was indorsed on the note as interest paid for that time. No demand was made upon the makers, either at maturity or at the expiration of the extended time. Notice had been expressly waived. The defendant was held. In Ridgway v. Day, 13 Penn. State, 208, the plaintiff wrote to the defendant before maturity, informing him that the maker could not probably pay, and offering to extend the time of payment. The defendant agreed, and wrote, in reply, that he was "willing to extend the time for thirty days longer, and of course will stand responsible for the payinent of the note as originally intended." One or two further extensions were made. Held a waiver of all demand and notice. See also the cases cited infra.

tion, has been made between the maker and the indorser, and the latter has transferred the note to the plaintiff, who was wholly ignorant of the agreement.(b) So where the drawer deposited a particular kind of funds with the payee and indorser, under an agreement between the parties that the proceeds of the funds were to be applied to the payment of the bills, when due, such arrangement was held to be a waiver of presentment, and the indorser entitled to sue the drawer, if the funds were not paid according to the agreement. (c) So demand and notice are waived where the drawer of a check stops its payment at the

....

(b) Williams v. Brobst, 10 Watts, 111. Kennedy, J. said: "It is further alleged in the declaration, that the defendant, after receiving the note from the maker, and before he passed it by indorsement to the plaintiff, . . . . agreed to forbear payment thereof until one year after the time mentioned in the note for that purpose; and that he passed the note to the plaintiff, who was altogether ignorant of this agreement, without advising him of it." The judge, after stating that it must be taken for granted that the consideration was a valuable one, continued: "These facts show clearly that the defendant had not dealt fairly with the plaintiff, . by suppressing the agreement which he had previously made with the maker of the note, postponing the day of its payment. This was certainly a very important circumstance, because it rendered the note of less value, and ought, therefore, to have been disclosed by the defendant to the plaintiff at the time he offered to indorse it to him. After having made such an agreement with the maker of the note, for which he had received a valuable consideration, it would also have been a fraud in him to have permitted the maker to be called on and compelled to pay it before the time had arrived to which it was agreed between him and the maker that the payment of it should be postponed. Upon this ground, therefore, he had no right to require that the drawer should be called on first for payment, as soon as the note, according to its terms, became payable; but, on the contrary, was bound himself, in justice to the maker, to have prevented it, by calling upon the plaintiff and paying the amount thereof, so that the maker should have the benefit of the indulgence agreed on between them. . . . . The reason why the law requires that the indorsee of a note or bill shall give notice to the indorser of non-payment is, that he may take the necessary measures to obtain payment from the party or parties respectively liable to him. . . . But the defendant had no right to claim notice, because if he had paid the plaintiff, and taken up the note when at maturity, according to its face, he would have had no right to demand payment of the maker for a year afterwards. It is no objection to this course of reasoning, that the plaintiff might, notwithstanding the agreement, as he was ignorant of it when he took the note, for a valuable consideration, in the ordinary course of business, have compelled the maker to pay it as soon as it came to maturity, according to its terms, because it would have deprived the maker of the indulgence which the defendant was bound to give him; and it does not lie in the mouth of the defendant to say that he ought not to be made liable himself to pay the amount of the note to the plaintiff, because the latter did not compel payment of the note from the maker, when it would have been a fraud in the defendant to have permitted it, and not to have prevented it by paying the amount thereof himself."

(Curtiss v. Martin, 20 Ill. 557.

bank where it is payable; (d) and the same is true, we think, with reference to the drawer of a bill who has ordered the drawee not to accept; (e) but there is a Nisi Prius case, which holds that this amounts to a waiver of notice, but not of demand.(f) So where an indorser obtains possession of the note before maturity, and withholds it until after that time, demand and notice are waived.(g)

There has been some conflict on the point whether a parol promise to pay the note, made at the time of endorsing, or a parol agreement between the parties that payment should not be demanded until after maturity, is admissible to prove a waiver of demand and notice.(h) Some of the earlier cases deny its admissibility, on the ground that the indorsement is a written. contract that regular demand shall be made and notice given, which cannot be waived by a contemporaneous parol agreement. But we do not think this to be law, and are of opinion that the evidence may be introduced, because the contract is, not that demand shall be made and notice given, but that due diligence shall be used; and evidence is admissible to prove that such diligence has been used. (i) Indeed, the law seems

(d) Jacks v. Darrin, 3 E. D. Smith, 557; Purchase v. Mattison, 6 Duer, 587. (e) Lilley v. Miller, 2 Nott & McC. 257, note a; Sutcliffe v. M'Dowell, id. 251. (f) Hill v. Heap, Dow & R., N. P. 57. Sed quære. (g) See Havens v. Talbott, 11 Ind. 323. fendant, before maturity, to pay the note.

There was also a promise made by the de

(h) In the following cases it was held inadmissible. Barry v. Morse, 3 N. H. 132; Hightower v. Ivy, 2 Port. Ala. 308. In Free v. Hawkins, Holt, N. P. 550, 8 Taunt. 92, the evidence was rejected. The court relied upon Hoare v. Graham, 3 Camp. 57, as authority. But there is an obvious distinction between the two cases. In the latter, the indorser's defence was, that the suit was premature, because, although it was brought after the note matured, by a parol agreement the note was not to be sued until a subsequent period. So it is settled that a maker cannot object to a suit on the same ground. But the evidence on the point now under consideration is not offered to show that the indorser's liability accrued at a different time from that mentioned in the note, but that the proper steps required by law had been taken.

(i) Barclay v. Weaver, 19 Penn. State, 396, where Lowrie, J., having decided, at Nisi Prius, that the evidence was inadmissible, changed his opinion after argument before the full bench. He said, the question now is: "May a party prove, by oral testimony, that, at the time of the indorsement of a promissory note, it was agreed that the indorser should be absolutely bound for the payment of it, without the usual demand and notice? This was answered in the negative, in the court below, on the principle that oral testimony cannot be heard to vary the terms of a written contract. The error consists in the assumption that the law regards an indorsement as a writ en contract to pay, on condition that the usual demand be made and notice given. It is