delivered the opinion of the Court.
The defendant contended, on the hearing, that the issue of fact being joined to, and tried by the Court, they were, in effect, arbitrators, and the losing party is thereby precluded from his remedy, by bill of exceptions, and writ of error — and he cites 2 D. Chip. Rep. 36, Noble vs. Admr. of Jewett. That authority has no application to this case. That was a writ of error, . (sui gneris) calling upon the Supreme Court, to decide over again, the question decided by the County Court, upon the weight of evidence. There was no law question whatever, to be revised, but what should arise upon deciding, one way or the other, upon the weight of evidence. The present case presents a law question, as perfectly insulated from' all questions of fact, as if the facts had been found by the jury. The Court meets with no difficulty in disposing of this question, so as to proceed, and consider the merits of the case.
The principal question is, ought the County Court to have admitted the evidence, so offered by the plaintiff, which they excluded ? We think it ought to have been admitted; what is due, or reasonable diligence, is partly a question of fact, partly of law. It appears that the note in question, was dated January-*421824, and payable on demand, and had laid, without payment, (except six dollars endorsed,) until December 1, of the same year, when it was endorsed to the plaintiff; Burnham, the signer, being, at the same time, notoriously insolvent. Now, it would not seem reasonable, to apply to this case, that law merchant, which is made to apply to notes given by good responsible men, and negotiated before they become payable. It would not be reasonable to require the same urgent speed in demanding payment, and giving notice back. In this case, the demand of payment is but technical formality, to preserve the plaintiff’s cause of action, against the endorser. The demand could be of no other service, in common probability, for the signer was notoriously insolvent; such being his situation, there was no danger of his growing worse. In the case of a good signer, it is expected a demand will produce payment. If it does not, the endorser must know it, so as to pursue the maker, if he choose, and run no risk of his becoming less able to pay.
It does not appear, in this case, on what day plaintiff called for Burnham, without finding'him; but he found him the 5th of December, demanded payment, without effect — gave notice to defendant the seventh. The Court are not fully prepared to say whether this was, or was not, reasonable diligence. The case does not describe the relative distance of the parties; the plaintiff and defendant are described as living in Burlington, but whether near neighbours, or in remote parts of the town, does not appear; neither does it appear, whether Burnham lives in Burlington, or elsewhere, nor at what distance. The case is, therefore, too uncertain, to be ultimately decided upon this point. But another view is attended with less difficulty.
The case states, that, when notice of non-payment was given to the defendant, he acknowledged his liability to pay the note, and promised to pay it. This promise must be prima facie binding; but defendant urges, that it is not binding, unless he, at the time of the promise, knew of the laches, which operated to discharge him. It is true such a promise, made in total ignorance of a defence, which existed, would not bind — but nothing appears, but that the defendant knew every circumstance; and, if he would exonerate himself from his promise, on this ground, the burden of proof rests on him. For, he could not be ignorant of the time when notice was 'given him, of the non-payment. The Court consider, that the evidence of the defendant’s promise to pay, ought to have been admitted. As the •Court will send this cause down, to be tried again, that the parties may have advantage of the whole views of the Court, in preparing for another trial, we add, that the long period the note had been payable before the endorsement to the plaintiff’, the insolvency of the maker, the improbability of his making payment, pn demand, or of his growing worse by delay, the relative distance of plaintiff, defendant, and Burnham, and the ease, or difficulty of communication between them ; whether the plaintiff could make demand, or give notice in the way of his usual *43business, or must go, or send on purpose, are all matters proper to be considered in deciding the question of reasonable diligence.
John jY. Pomroy and Charles Adams, for the plaintiff. Wm. Braylon and J. C. Thompson, for the defendant.The judgment of the Court is, that the County Court erred, in excluding the evidence offered: that their judgment be reversed, and the cause sent to the County Court for a new trial.