Where a bill is not accepted, or a bill or note is not paid at maturity, by the party bound then to pay it, all subsequent parties must have immediate notice of this fact.1 The contract of an indorser is a written contract; his liability is conditional and depends upon due demand and notice, and cannot be made absolute by parol evidence of statements made before or at the time of the indorsement. (hh) 2 Thus a verbal agreement of the parties to waive notice may not render it unnecessary; (i) but it is sometimes waived in writing, and this usually on the note; as by the words, " I waive demand and notice; " and such waiver is sufficient. (j) A waiver of demand alone should operate as a waiver of notice; for if demand of payment is not made because unnecessary, a notice can hardly be necessary or useful; but a waiver of notice alone is not a waiver of demand, for though the party waiving may not wish for notice of the nonpayment, he may still claim that * payment should be demanded. (k) A waiver of protest has been construed variously: that it is a waiver of demand but not of notice, (l) that after waiver of protest, demand must still be made, (//) and that such waiver is a waiver of demand and notice. (lm)

In this case it was held, that the indorsee of a bill of exchange, payable a certain number of days after sight, drawn in a French West India Island, on a mercantile house in Bordeaux, and transferred in the city of New York by the payee, need not present the bill for payment after protest for non-acceptance, notwithstanding that by the French code de commerce the holder is not excused from the protest for nonpayment by the protest for non-acceptance; and loses all claim against the indorser, if the bill be not presented for protest for non-payment. In such a case the payee of the bill is bound to conform to the French law in respect to bills of exchange, to enforce his remedies against the drawers, but not so the indorsee; he is only required to comply with the law-merchant prevailing here, the indorsement having been made in the city of New York; and according to which his right of action is perfect, after protest for non-acceptance. See also Hatcher v. McMorine, 4 Dev. L. 122.

(g) Lizardi v. Cohen, 3 Gill, 430.

(h) Cook v. Litchfield, 5 Sandf. 330; Young v. Harris, 14 B. Mon. 556.

(hh) Goldman v. Davis, 23 Cal. 256.

(i) It is so intimated in some English cases. Free v. Hawkins, Holt, 550, 8 Taunt. 92. But see Drinkwater v. Teb-betts, 17 Me. 16; Boyd v. Cleaveland, 4 Pick. 525; Taunton Bank v. Richardson, 5 Pick. 437; Fuller v. McDonald, 8 Greenl. 213; Marshall v. Mitchell, 35 Me. 221; Farmers' Bank v. Waples, 4 Harring. (Del.) 429; Hoadley v. Bliss, 9 Ga. 303; Lary v. Young, 8 Eng. (Ark.) 402; Far-well v. St. Paul Trust Co. 45 Minn. 495. Although a bill or note has been indorsed long after it is overdue, there must still be a demand and notice of default in order to charge the indorser, because a bill or note, although overdue, does not cease to be negotiable. Dwight v Emerson, 2 N. H. 159; Berry v. Robinson, 9 Johns. 121; Greely v. Hunt, 21 Me. 455; Kirkpatrick v. McCullock, 3 Humph. 171; Adams v. Torbert, 6 Ala. 865.

1 Omission to give notice of default in the payment of previous instalments of a note so payable does not discharge the indorser as to later instalments. Fitchburg Ins. Co. v. Davis, 121 Mass. 121. See Croydon Gas Co. v. Dickinson, 2 C. P. D. 46. - K.

2 One who indorses a note after maturity is entitled to notice of dishonor. Rosson v. Carroll, 90 Tenn. 90; Ames Cas. B. & N. vol. ii. 212, 214, n.

There may be a constructive waiver of demand and notice; as, by an act of the indorser or drawer which puts the holder off his guard, or which prevents the holder from treating the note as he otherwise would. There are many cases showing how this waiver may be effected. (ln) An indorser consenting to an extension of time between maker and payee, thereby waives demand and notice at the original maturity of the note. (lo)

No waiver affects any party but him who makes it. It was formerly held that a neglect to give notice would not support a defence to a bill, unless injury could be proved; but is now well settled that the law presumes injury. (m)

The omission to give such notice may, however, be excused by circumstances which rendered it impossible, or nearly so. The maker's letter, before maturity, stating inability to pay, and requesting delay, does not excuse want of demand or of notice. (n) But a request of the indorser for delay, or an agreement with him

(j) Woodman v. Thurston, 8 Cash. 159'.

(k) Drinkwater v. Tebbetts, 17 Me. 16; Lane v. Steward, 20 Me. 98; Berkshire Bank v. Jones, 6 Mass. 524; Buchanan v. Marshall, 22 Vt. 561. See also Union Bank v. Hyde, 6 Wheat. 572 , Cod-dington v. Davis, 3 Denio, 16; Bird v. Le Blanc, 6 La. An. 470; Voorhies v. Atlee, 29 Ia. 49.

(l) Wall v. Bry, 1 La. An. 312.

(ll) Buckley v. Bentley, 42 Barb. 646.

(lm) Fisher v. Price, .37 Ala. 407; Jac-card v. Anderson, 37 Mo. 91; Porter v. Kemball, 53 Barb. 467.

(ln) Gove v. Wining, 7 Met. 212; Taylor v. French, 4 E. D. Smith, 458; Mintun v. Fisher, 7 Cal. 573; Kyle v. Green, 14 Ohio, 490; Amoskeag v. Moore, 37 N. H. 539; Curtiss v. Martin, 20 Ill.

557; Cheshire v. Taylor, 29 Ia. 492. But see Haskell v. Boardman, 8 Allen, 38.

(lo) Walker v. Graham, 21 La. An. 209.

(m) Dennis v. Morrice, 3 Esp. 158; Norton v. Pickering, 8 B. & C. 610; Hill v. Heap, Dow. & R. 59; De Berdt v. Atkinson, 2 H. Bl. 336. - But in Terry v. Parker, 6 A. & E. 502, it was held, that if a drawer of a bill of exchange have no effects in the hands of the drawee at the time of the drawing of the bill, and of its maturity, and have no ground to expect that it will be paid, it is not neces-sary to present the bill at maturity; and if it be presented two days afterwards, and payment be refused, the drawer is liable, and the case of De Berdt v. Atkinson is denied to be correct. And see ante, page * 271, note (j).