January v. Todd , 1 Mo. 567 ( 1825 )

Wash, J.,

delivered the opinion of the Court.

This was an action of assumpsit, by the plaintiff in error against the defendant, as endorser of a promissory note, made in Kentucky. The only evidence in the cause,was an acknowledgment" of the defendant, “ that the debt was due, but that he was not hound to pay by the laws oi Kentucky, until the maker of said note was-sued, and the remedy exhausted against him; ” which, the defendant’s counsel moved the Court to instruct the jury, was no proof of presentment to the maker, in order to charge the defendant as endorser.- The Court below gave the instructions prayed for; whereupon, there was a verdict and judgment for the defendantto reverse which judgment, this writ of error is prosecuted.

For the plaintiff, it is contended, that the acknowledgment of the defendant, “that the debt was due,” was equivalent to' a promise to pay, with a full knowledge of all the circumstances, that such acknowledgment would take it out of the statute of limitations, &c. It would, no doubt, be suffibient to revive a debt, barred by the statute of limitation, hut a very different sort of promise is necessary to amount to a waiver of notice, or proof of presentment. It must not only be made after a full knowledge of all the circumstances, hut it must be in terms direct and unconditional,, or in such as show an intention to waive any omission or irregularity in making presentment, or giving notice. Kothing could be less like such a promise, than the acknowledgments of the defendant,-taken together, and the Circuit Court did very right in giving the instructions prayed for.

And its judgment is hereby affirmed, with costs.-