A waiver must be made to one who is a holder of the paper or to some one for such a holder,1 except that an agreement, it has been held, made by the indorser with the maker, that he would take up the note and pay it, inures to the benefit of the indorsee as a waiver of demand and notice.2 Yet it is held that the indorser's agreement made with the maker to waive demand and notice does not inure to the benefit of the holder. The distinction ought to be this: if the promise is to the maker, whether it be made before maturity or after maturity, with knowledge of dishonor, it is binding3 and inures to the benefit of all the holders as a waiver.4 But if made after maturity without such knowledge, the promise, since it would not be good if made to the holder, is not good if made to the maker.5 The agreement to waive made with the maker by the indorser ought to be held good if it was communicated to the holder when he was holder and he relied upon it in not giving notice. There is also the case of the trustee under a mortgage; he so far represents the holder that a promise of waiver or a waiver made to him is good as made to the holder of the note.6 Even if the waiver is made to a person not a holder, but he afterwards becomes holder, the waiver is not binding,7 unless the indorser knew or intended that the person was about to become the holder and the holder actually relied upon the waiver in not giving notice.

1Jerrey v. Wilber, 1 Bailey, 453; Attwood v. Haseldon. 2 Bailey, 457; Jaccard v. Anderson, 37 Ma 91.

2 Marshall v. Mitchell, 35 Me. 221.

3 See the case in the last note, and Boyd v. Cleveland, 4 Pick. 525.

4 But Brown v. Ferguson, 4 Leigh, 87, is contra as to the promise of drawer to drawee.

5 See Sec. 299, post, and Jaccard v.

Anderson, 37 Mo. 91. In this case the proof seems not to have been at all conclusive. If a waiver is made to the maker in order to be told or shown to the holder, it is no doubt binding as an estoppel.

6Riker v. Sprague Mfg. Co., 14 R L 402.

7 National Bank v. Lewis, 50 Vt 622.