delivered the opinion of the Court. It was conceded, that no seasonable demand had been made on the promisor, and no notice given to the indorser. The plaintiff relied upon a waiver, as an excuse for want of demand and notice, placing it on two grounds : 1. That the promisor had placed funds in the hands of the defendant to meet the payment ; and 2. That with notice that there had been no demand and notice, the defendant had promised to pay the note.
This is rather matter of evidence than of law, that is, whether there is proper evidence to go to a jury, and whether it would be sufficient to warrant them in finding a waiver of demand and notice.
On the first ground we think that the most which could be made of the evidence is, that after this note w'as made, buf several months before it became due, the promisor made an assignment to trustees, upon trust among other things to se*335cure the defendant for all debts due to him from the promisor, and to indemnify him against all his liabilities. Without stopping to consider, whether after this property was surrendered by the trustees, the defendant could have availed himself of it, we think the effect of this assignment was, to secure and indemnify the defendant against his legal liabilities ; and as his liability as indorser on this note, was conditional, and depended upon the contingency of his having seasonable notice of its dishonor, his claim upon the property depended upon the like contingency. The second assignment does not affect the question ; it does not appear to have been made till several days after the note became due.
And on the other ground, it is a rule of law, that if an indorser, knowing that there has been no demand and notice, and conversant with all the circumstances, will promise to pay the note, this is to be deemed a waiver. But these rules in regard to notice and waiver, are to be held with some strictness, in order to ensure uniformity of practice and regularity in their application. Though questions of due diligence and of waiver, were originally questions of fact, yet having been reduced to a good degree of certainty by mercantile usage, and a long course of judicial decisions, they assume the character of questions of law, and it is highly important that they should be so deemed and applied, in order that rules affecting so extensive and important a department in the transactions of a mercantile community, may be certain, practical and uniform, as well as reasonable, equitable and intelligible.
In the present case we are of opinion, that the evidence falls short of proving a promise by the defendant, either to pay the note or see it paid. The agent of the plaintiff applied to the defendant, some days after the note had become due, obviously for the purpose of obtaining from him a renewed promise. The strongest expression used by the defendant in the course of a long conversation, was, “ the note will be paid.” This is quite as consistent with the hypothesis, that it was a mere assertion of his expectation, that it would be paid by the promisor, as of a promise on his own part to pay it; and from the general tenor of the conversation, we think it cannot be inferred, that it was his intention, knowing of his *336discharge, to waive his defence, and promise to pay the note, or see it paid, at all events. This view of the evidence, considering that the burden of proof is upon the plaintiff, is decisive, and therefore the nonsuit must stand.
Judgment for the defendant.