Hopkins v. Liswell , 12 Mass. 52 ( 1815 )

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 ;⁽¹⁾ but, with that knowledge, there is no doubt that such a promise is binding.^†

Judgment on the verdict.

(1) 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.