A promise by the indorser to pay the note, made before maturity, is a promise essentially different from the promise made by the indorsement. If this promise is orally made at the time of the indorsement, the difficulty, as we have already indicated, is that the indorsement makes a written contract, while the parol contemporaneous agreement to pay at all events contradicts the engagement which the written indorsement shows.1 The difficulty is not obviated when, instead of a promise to pay, the parol contemporaneous agreement is one of guaranty.2 The exception where such proof of waiver is allowed is generally as to the contract of the anomalous indorser.3 But where the indorsement is regular, such parol proof is in general inadmissible where it is to show a contemporaneous waiver.4 Where a promise to pay is made before maturity upon a regular indorsement, the question that theoretically presents itself is one of consideration. But since a consideration may be a detriment to the promisee as well as a benefit to the promisor, there is one branch of the rule which says that if the indorser's promise to pay induces the holder to refrain from making a demand and from giving notice, the promise is binding, whether express or by implication.5 This promise may be the offer of a new note in renewal,6 or an implied promise to pay.7 Considered as a promise the legal theory of the contract of waiver must be that the new promise is a continuing offer to pay, including therein a waiver of demand and notice, which is accepted by the holders acting upon it by not making a demand. This theory is inadequate, for if it be a continuing offer, it could be accepted at any time after it was made and before the time came for a demand. An express acceptance ought in that event to bind the promisor. But this statement of the obligation shows no con sideration. The new promise cannot be considered an estoppel, even if acted upon, because it is a promise, not a representation of any fact. So we are driven to the conclusion that the new promise, a nullity in itself,8 becomes, and can become, binding as an actual contract only by the giving of some consideration. A consideration is given by the detriment to the holder in acting upon the promise. Till that is done the promise ought in theory to be revocable as an offer. If, however, the holder, relying upon the promise, should release the maker or his surety, could such a detriment be an acceptance of the offer? Probably it would not be so, because the new promise is merely a waiver. It does not render the indorser any the less a surety sub modo for the maker, and the act of releasing the maker or his security would probably release the indorser. Therefore it seems reasonably certain that the only way in which the offer can be accepted is by the holder's acting upon it at maturity, except where the time of payment is extended. The extension of time, with the concurrence of the parties before maturity, is theoretically, but not legally, a waiver only until the extended day of maturity.9 But if the extension of time is, or is not, accompanied on the part of the indorser with a promise to pay the note upon maturity, or a guaranty or a waiver, there is an absolute waiver of demand and notice at any time.10 This may be treated on the theory that the indorser thereby becomes a maker. The cases, however, show that the new promise is merely a waiver going in support of the original contingent liability on the paper. Nothing short of an unqualified promise to pay seems sufficient as a waiver. Thus, if the holder notifies the indorser before maturity that he looks to him for payment, he does not thereby affect the right of the indorser to demand and notice,11 or if the holder and the indorser, at the time of indorsement, agree that the maker is not to be sued until the indorser notifies the holder to sue, the demand and notice is not waived by the indorser.12 The indorser who appears at a meeting of the creditors of the maker, and by reason of his indorsement takes the position of a creditor, does not waive notice and demand,13 nor is a request by the indorser of the holder not to sue during the former's absence.14 But if the demand is omitted at the indorsees request at maturity,13 there is a waiver both of the demand and notice.

Whittier v. Collins, 15 R. L 44 Contra, Michaud v. Legarde, 4 Minn. 43. But eee Hart v. Eastman, 7 Minn. 74. See note 6 to the following section.

25 See Hart v. Eastman, 7 Minn. 74; Worden v. Mitchell. 7 Wis. 161. Contra, Sheldon v. Horton, 43 N. Y. 93, and the cases in notes 5 and 10 to the following section.

26 Cardwell v. Allen, 33 Grat. 160.

The security must be considered that of the maker. But the indorser may become absolutely liable. Hoover v. Glasscock, 16 La. 242.

1 Baskerville v Harris, 41 Miss. 535. But contra, Worden v. Mitchell, 7 Wis. 161.

2 See Sec. 298, ante, notes 5, 6.

3 See g 298, ante. 4 See g 298, ante.

5Sigerson v. Mathews, 20 How. 496; Leffingwell v. White, 1 Johns. Cas. 99; Lane v. Stewart, 20 Me. 98; Hale v. Danforth, 46 Wis. 554; Kyle v. Green, 14 Ohio, 490; Markland v. McDaniel, 51 Kan. 350: First Nat. Bank v. Connoway, 4 Houst. 206; Schley v. Merritt, 37 MA 352; Sieger v. Second Nat. Bank, 132 Pa. 307; Lary v. Young, 13 Ark. 401; Bryant v. Wilcox, 49 CaL 47; Blaf-fer v. Herman, 7 La. Ann. 659; Stahl v. Wolfe, 6 Wkly. Notes Cas.

143; Lititz Nat. Bank v. Siple, 145 Pa. 49.

6 First Nat. Bank v. Ryerson, 23 Iowa,508; National Hudson R.Bank v. Reynolds, 57 Hun, 307; Jenkins v. White, 147 Pa. 303, and Glaze v. Ferguson, 48 Kan. 157. And see note 24 to the last section.

7 Stahl v. Wolfe, 6 Wkly. Notes Cas. 143.

8 It is not a promise to pay a debt, because no debt exists. Reiff v. McMiller, 45 Leg. Int. 26

9 See note 25 to last section. But 6ee the cases cited in note 6, supra. 10Cady v. Bradshaw, 116 N. Y. 188; Sheldon v. Horton, 43 N. Y. 93: Amoskeag Bank v. Moore, 37 N. H. 539; Norton v. Lewis, 2 Conn. 478; Farmers' Bank v. Catlin, 13 Vt. 39; Long v. Moore, 2 Brev. 172; Blanc v. Mutual Nat. Bank, 28 La. Ann. 921.

11 Davis v. Go wen, 19 Me. 447;

Good v. Arrowsmith, Anth. N. P. 289. See Boyd v. Cleveland, 4 Pick. 524.

12 Freeman v: O'Brien, 38 Iowa, 406.

13 Miranda v. City Bank, 6 La. 740. 14 Dutton v. Bratt, 11 S. W. R 821

(Ark.).

15 Whittier v. Collins, 15 R. L 44 And see note 10, supra.