¶1The defendant Lytle was entitled to judgment, unless the assignment to him, or his promise to pay, renders him liable without demand and notice. The insolvency of the makers did not excuse want of demand. (Chit, on Bills, 449. Story on Bills, §§ 326, 346.) Absconding would. (Taylor v. Snyder, 3 Denio, 151. Chit, on Bills, Perk. ed. 354, n. Story on Bills, § 327.) But the proof does not show that either of the makers could be considered as having absconded when the note matured. Osborne was there, and Wooclin had been but a few months before, and was probably then in New-York. It is quite clear, no demand was made or notice given at the proper time. Hone has been proved, and there were both demand and notice five days too late, which, impliedly, negatives a demand before. Prima facie then, the defendant was discharged. (Commercial Bank v. Hughes, 17 Wend. 99.) W as he liable because he was assignee; or because of his promise? It has been decided that an assignment of all the property of the maker to the indorser, or of sufficient to pay the note, and for that purpose, dispenses with demand and notice. (Corney v. Da Costa, 1 Esp. 502. Bond v. Farnham, 5 Mass. Rep. 170. Mechanics’ Bank v. Griswold, 7 Wend. 165. Chit, on Bills, 368, 473, 489. Story on Bills, § 374. Spencer v. Harvey, 17 Wend. 489. 1 Cowen’s Tr. 248.) Though an assignment to trustees to pay the note and other debts, it is said, is insufficient. (Creamer v. Perry, 17 Pick. 332. And see Story on Bills, § 316.) And so of a judgment taken as indemnity, about which there is litigation, no funds or property having come into possession. (Spencer v. Harvey, supra.) It was averred in the first count of the declaration, in Mechanics’ Bank v. Griswold, that the property assigned exceeded the liability; and in the second, that the makers assigned all their property. In such cases, the principle of liability has been said to be, that it amounts to an agreement to take up the note. (2 Smith’s Lead. *166Cas. Am. notes to Bickerdike v. Bollman, p. 22.) It may be deemed analogous to the case of a creditor, entitled to all the counter and collateral securities held by a surety ; (Maine v. Harrison, 1 Eq. Cas. Abr. 98, K. 5. Burge on Surety, 334. Curtis v. Tylor, 9 Paige, 432. Ten Eyck v. Holmes, 3 Sandf. Ch. 428. Clark v. Ely, 2 Id 166 ;) or that of a drawer, who has withdrawn all the funds; (Comm. Bank v. Hughes, 17 Wend. 94. Birckhead v. Brown, 2 Denio, 375. Dollfus v. Frosch, 1 Id. 367.) But if the indemnity is only by way of a lien, or by a counter bond, it seems to me there should be an express promise. In this case, the makers assigned all their property. It is said they may have acquired more after-wards, and before the note became due. That is however very improbable, from the circumstances. But the assignment turns out not to be full indemnity; and the defendant offered to show that there was litigation, the validity of the assignment itself being attacked by the less favored creditors. This offer must be taken to be true. If the plaintiffs prevail on account of the assignment, it must be on the ground that the makers have assigned every thing. In Corney v. Da Costa sufficient effects were received. And Bond v. Farnham, and Mechanics' Bank v. Griswold are the leading cases on the other branch of the proposition, that if all is assigned, that is sufficient. It is difficult to see how this can excuse laches where, as in this case, there is a deficiency, so long as utter insolvency will not have that effect. And perhaps it is as well in such cases to consider a holder, who had knowledge of the assignment and gave no notice, as having elected to look to the assignment; for the indorser, if assignee, in most cases, is still liable in his character of trustee, to the amount of the funds received; though discharged as indorser. (Story on Bills, § 316.) It seems he is entitled to strict notice where he has received funds only sufficient for part payment. (Id.)
¶2Again, it is said the promise was a waiver of the demand and notice. An unconditional promise, with full knowledge of all the facts, undoubtedly is so. (Reynolds v. Douglass, 12 Pet. 505. Thornton v. Wynn, 12 Wheaton, 183. Tebbetts v. *167Dowd, 23 Wend. 379.) And since Tebbetts v. Dowl, where there is an express promise, it may be presumed that there were demand and notice, until the contrary is shown. (And see Croxon v. Mitchell, 5 M. & W. 5; Margetson v. Aitken, 3 C. & P. 338; Hicks v. Beaufoot, 4 Bing. N. C. 229; Lundy v. Robertson, 7 East, 231.) But it seems to me, that presumption is rebutted by showing a demand and notice on the fifth day after the note became due. The case, then, does not stand upon presumption, and there 'is no waiver, unless it is also shown that the defendant had knowledge at the time he made the promise. (Tebbetts v. Dowd, 23 Wend 379. Keeler v. Bartine, 12 Id. 119.)
¶3But in another view I think the report must be sustained. If the testimony is true, on the 9th day of April, the day before the note became due, the defendant made an express promise to pay it on the 12th or 13th. On the 13th, he again promised to pay it in the afternoon of the same day; and on the 15th pretended he was then on his way to pay it. The referee, however, in giving his opinion, doubted the evidence of a promise after the note came to maturity. The witness is not impeached unless by bias, but if the referee did not believe him, the case must rest on the promise made on the 9th of April.
¶4Where the necessary steps to fix an indorser are prevented by some act of the latter which puts the holder off his guard, the holder is excused. (Leffingwell v. White, 1 John. Cas. 99. Spencer v. Harvey, 17 Wend. 491. Coddington v. Davis, 1 Comst. 186 : S. C. 3 Denio, 16. Story on Bills, § 371. Burgh v. Legge, 4 M. & W. 418. Leonard v. Gary, 10 Wend. 504.) Story says, a mere verbal agreement which may mislead, but does not purport to waive such presentment, will not be available. (Story on Bills, § 371.) And he cites Free v. Hawkins, (1 Holt’s N. P. R. 550; S. C. 8 Taunt. 92;) and Chitty on Bills, 446, which relate only to a parol agreement not to put the note in suit. In Prideaux v. Collier, (2 Stark. Rep. 57;) Cayuga Bank v. Dill, (5 Hill, 403,) and Free v. Hawkins, (supra,) the holders were not, or had no reason to be, misled. Hero the holder knew that the defendant and another held an assignment *168of all the maker’s property; and that the latter were insolvent: and on asking the defendant for payment, the day before the note became due, he received an unqualified promise that it should be paid on the 3d or 4th day from that time. It is said the holder was not misled; for he thought the note became due on the 7th of April. Ho doubt he did so. But if the defendant had refused to pay it, or even been silent, it is probable the plaintiff would have sought information at once, and taken all necessary measures. Under the circumstances, he had a right to rely upon this unconditional promise; and it may be presumed that he did so. In Burgh v. Legge, the indorser of two bills, one drawn upon W. and due upon the 4th, the other upon B. due on the 5th of April, on the 4th, stated to the holders, that the one drawn on B. would not be paid, as B. had become a bankrupt; and that the other would not be paid, as he had some pictures as security, to sell and take it up; and that W. had no other means of raising the money, and it was not worth while to trouble him with a two penny post letter to give him notice; it was not worth the money: and he would bring the plaintiff some money on the following Monday in part payment of the two bills. The plaintiff failed because he had averred notice, and the court held there was no evidence of that; but Parke, B. said, this was good evidence of a dispensation with notice. In Spencer v. Harvey, an indorser, a few days before the note became due, wrote to the holders that the makers had failed; that the first indorser, who owned a farm, had given a judgment to secure the payment of the note, but the farm could not be sold till such a time; that no additional security could be obtained by pros.ecuting the note; and he had made no calculations for raising the money, and was therefore under the necessity of asking indulgence until the real estate could be sold. If he had received an assignment of all the maker’s property, and promised, the day before it becamé due, to pay the note, the case would have been stronger.
¶5Willard, Hand and Cady, Justices.]
¶6Judgment affirmed.