JONATHAN LADD vs. LOWELL KINNEY

This was an action of assumpsit against Kenney, as endorser oí a note of hand made by Hazen Lawrence, dated March 14, 1816, for $40, payable to Kenney or order in sixty days with interest, and by him endorsed to the plaintiff.

The cause was tried here at September term, 1820, upon the general issue, when it appeared in evidence, that the note was endorsed by the defendant to the plaintiff before it became due; that the plaintiff and Lawrence both resided in Meredith, in this county, and that Kenney resided in Salem, in Massachusetts. The plaintiff presented the note to Lawrence for payment in due season, and Lawrence refused to pay it. No notice was proved to have been given to Kenney that Lawrence had refused to pay, until more than a month afterwards, when Kenney, being at Meredith, was informed by the plaintiff that the note was not paid, upon which Kenney said that he would see Lawrence, and have the note paid before he returned to Salem.

The court instructed the jury, that the notice of the nonpayment of the note by Lawrence, given by the plaintiff to the defendant at Meredith, was not seasonable notice.; but that if they were satisfied that the defendant then undertook to see the note paid, it was in law a waiver of any irregularity in tifo notice, and the defendant was liable.

The jury returned a verdict for the plaintiff, and the defendant moved the court for a new trial, on the ground of a misdirection to the jury.

It seems never to have been doubted, that if the endorser of a note, after being apprised of the negligence of the holder in making a demand, or in giving notice, and also of the legal consequences of such negligence, promises to see the note paid, it is in law a waiver of any objection he might have otherwise taken on account of the irregularity of the demand or notice, and he must be belt! liable. Chitty on Bills 186 and 187, note.—2 D. & E. 713, Rogers vs. Stephens.— 6 East 16, note, Hopes vs. Alder.—2 Strange 1246, Vaughan vs. Fuller— Peake’s Ca. 202, Wilkes et al. vs. Jacks.— Buller's N. P. 276.— 7 East 23], Lundie vs. Robertson.—12 Mass. Rep. 52, Hopkins vs. Liswell.

But it has been sometimes held, that when an endorser promises to pay under a misapprehension af the law, although with a full knowledge of all the facts, it is not a waiver of any objection he may have to the demand or notice. 7 Mass. Rep. 449, Warder vs. Tucker.—Chitty on Bills 187, note, Chatfield vs. Paxton.

The better opinion, however, seems to be, that if the promise is made with a full knowledge of all the facts, the endorser will be liable, whatever may have been his misapprehension of the law. Chitty on Bills 186.—12 East 38, Stevens vs. Lynch.—7 East 231, Lundie vs. Robertson.— 5 John. 248, Durgee vs. Dennison.—2 East 469, Bilbie vs. Lumley et al.—15 East 274, Hopley vs. Dufresne.—4 Dull, 109, Donaldson vs. Means.—13 East 417, Potter vs. Rayworth— 5 John. 375, Miller vs. Hackley.—12 ditto 423, Griffin vs. Goff.

In the present case, the defendant, when informed more than four weeks after the note became due, that it had not been paid, made no objection that he had not been seasonably notified, but promised to see Lawrence, and have the note paid before he returned home. We are of opinion that the jury were rightly directed to consider such a promise as a waiver of any objection to the notice, and that there must be