quenees of 7thly. How and frequently does not meet the justice of the case, it may be inferred the conse from this case, and it is indeed now clearly established, that even a mere a neglect to promise to pay, made after notice of the laches of the holder, would give notice be binding, though the party making it misapprehended the law." So may be where the drawer of a bill of exchange, knowing that time had been waived, or given by the holder to the acceptor, but apprehending that he was still otherwise liable upon the bill in default of the acceptor, three months after it was due, said, "I know I am liable, and if the acceptor does not pay it, I will," it was adjudged that he was bound by such promise. And such a promise will dispense with the necessity for a protest of a foreign bill. (1) done away. A promise to pay made after a declaration filed, not only precludes the party from availing himself of the laches of the holder, but also dispenses with evidence in proof of the allegations in such declaration; and if the promise be made to any party to the bill, another person who has afterwards taken it up, may avail himself of such promise, and suc the party making it. a "Cooper v. Wall, Guildhall, K. B. 1820, before Abbott, C. J. Scarlett and Chitty for the plaintiff, and Marryatt for defendant. Action against drawer. No evidence of presentment to acceptor, to notice of non-payment to drawer. The bill was due Saturday, 7th August, 1819. On 12th August, witness called with bill on defendant, and informed him that at request of plaintiff, the holder, he called for payment. Defendant said he was sorry the acceptor had not paid the money, that he had promised to advance the money, but that he had deceived him, and that he, defendant, would see the acceptor upon the business, and he would call on the holder; and per Abbott, C. J. this is sufficient to waive laches of holder (though Marryatt considered that there ought to be an express waiver,) and said, that if the drawer deal with the bill after it has been dishonoured, that suffices to charge him. * Stevens v. Lynch, 12 East, 38.--2 Campb. 322. S. C. and see Taylor v. Jones, 2 Campb. 105. y Gibbon v. Coggon, 2 Campb. 188, 9. Stevens v. Lynch, 2 Campb. 332, 333. Greenway v. Hindley, 4 Campb. 52. Hopley v. Dufresne, 15 East, 275. Action against indorser of a bill accepted, payable at a banker's. Defence, no regular presentment during banking hours. The declaration alleged a due presentment for payment, and after such declaration filed, the defendant applied to the plaintiff for the indulgence of a further extension of time to pay the bill, which was insisted on as a waiver of the defective presentation. For the defendant it was contended, that there could be no waiver of the defective presentation, without showing that the de fendant, knew, in fact, of the defect at the time, which, though attempted to be, was not shown in this case. For this was cited Blessard v. Hirst (post, 238,) where a subsequent promise by an indorser to pay the bill having been made under the ignorance of the prior laches of the holder, by which he was discharged, was held to be no wai ver of the objection. For the plaintiff, the counsel relied principally on the waiver which took place, after declaration, containing the allegation that the bill was duly presented for payment, was filed; and therefore after the defendant's attention was called to the fact, and he referred to Lundic v. Robertson, (7 East, 231, ante, 234,) where a promise by an indorser to pay the bill three months after it became due, was held to be primâ facie evidence of his admission that the bill had been presented to the acceptor for payment in due time, and dishonoured, and due notice of it given to him. Lord Ellenborough, C. J. stopping the argument, said, that the court thought that it should have been left to the jury to say whether, under the circumstances of the case, the defendant had notice at the time of his application for indulgence, that there had been no due presentation, and therefore made the rule absolute. Bayl, 221, 2. Potter v. Rayworth, 13 East, 417. Indorsee of a note against the payee and indorser. It appeared that the note which had been negotiated in the country, had been indorsed by the defendant to Fulford, by him to the plaintiff, by the plaintiff to Kirton, and by him to others before it became due; a fortnight after it had (1) Where there has been laches in not giving notice to the indorser of the non-acceptance of a foreign bill, a promise by the indorser to pay, is not binding on him. Philips v. MCurdy, 1 Hafr. & Johns. 187. quences of otherwise If, however, a promise to pay be made without a knowledge of the 7thly. How fact of non-acceptance, or of the laches of the holder, it will not be the conse binding; and even a payment under such circumstances might, if the a neglect to party making it were prejudiced by the conduct of the holder, and give notice there were any wilful concealment on his part, be recovered back. may be The promise also should amount to an admission of the holder's right waived, or to receive payment, and therefore where a foreigner said, "I am not done away. acquainted with your laws, if I am bound to pay it I will," such mise was not considered as a waiver of the objection of want of notice and it has been considered, that if the promise were made on the arrest, it shall not prejudice; but this doctrine seems questionable. If an indorser propose to the holder to pay the bill by instalments, and such offer be rejected, he is at liberty afterwards to avail himself of the want of notice. So it was decided in a late case, that if the drawer or indorser after being arrested, without acknowledging his became due, Kirton, who had taken it up, called on the defendant, who, until then, had received no notice of its dishonour, the defendant then promised Kirton to pay him the next day; having failed in this, Kirton resorted to the plaintiff, who paid the amount, and the defence now being the want of notice, the question was, whether the plaintiff could avail himself of this promise so made to Kirton. Graham, B. directed a verdict for the plaintiff, and on motion to set it aside, the court held, that this promise was an acknowledgment by the defendant either with notice or that without notice, he was the proper person to pay the note, and refused a rule. Lord Ellenborough, C. J. said, that whether the promise to pay were made to the plaintiff or any other party who held the note at the time, it was equally evidence that the defendant was conscious of his liability to pay the note which must be because he had had due notice of the dishonour. Bayley, J. considered the promise by the defendant either as an acknowledgment that he had had due notice of the dishonour, or that without such notice he was the proper person to pay the note as for the party for whose use it was drawn. Rule absolute. b Blessard v. Hirst, 5 Burr. 2672. Goodall v. Dolley, 1 T. R. 712. Williams 2. Bartholemew, 1 Bos. & Ful. 326. Bayl. 79. Stevens v. Lynch, 2 Campb. 333, admitted in 12 East, 39 S. C. Hopley v. Dufresne, 15 East, 276, 7, ante, 237, note. Blessard v. Hirst and another, 5 Burr. 2670. The defendant indorsed a bill to the plaintiff, and he indorsed it over; his indorsee presented it for acceptance a month before it became due, and acceptance was refused; it was afterwards presented for payment, and payment was refused, of which notice was given to the defendants, but they had notice of the refusal to accept. The drawer was a bankrupt before the bill became due, but he continued in credit three weeks after the presentment for acceptance. Three days after the notice, one of the defendants called on the plaintiff at Bradford, on his way to Leeds, and he said he would take up the bill as he returned, but on his return he said he was advised he was not bound to do it, upon which this action was brought; and on a case reserved, the court held, that though the holder might not have been obliged to present the bill for acceptance, yet as he did, he ought to have given notice of the refusal, and that by not so doing, he had taken the risk upon himself, and notwithstanding the promise of one of them, the defendants had judgment. Goodall v. Dolley, 1 T. R. 712. A bill drawn in favour of the defendant, payable the 11th January, 1787, was presented for acceptance by the plaintiffs, the 8th November, 1786, when acceptance was refused; they gave no notice to the defendant till the 6th January, and then did not say when the bill was presented, upon which the defendant proposed paying it by instalments, but the plaintiff rejected that offer, and brought this action. Heath, J. thought the defendant discharged for want of notice, and that his offer to pay being made under ignorance of the circumstances, was not binding, and the jury under his direction, found a verdict for the defendant. Upon cause shown against the rule for a new trial, the court thought the verdiet and direction right, and discharged the rule. Chatfield v. Paxton, ante, 236, note. Martin v. Morgan, 3 Moore, 635. 1 Gow. Rep. 123. S. C. Willians v. Bartholemew, 1 Bos. & Pul. 326. Bible v. Lumley, 2 East, 469. Malcomb v. Fullarton, 2 T. R. 645. Quare if not prejudiced could he sustain such action? Farmer v. Arundel, 2 Bla. Rep. 824. Price v. Neal, 1 Bla. Rep. 390. 3 Burr. 1355. Ancher v. Bank of England, Doug. 637. Bize v. Dickason, 1 T. R. 285. d Dennis v. Morris, 3 Esp. Rep. 158. Rouse v. Redwood, 1 Esp. Rep. 155. f Goodall v. Dolley, 1 T. R. 714, ante, 238. may 7thly. How liability, merely offers to give a bill; by way of compromise, for the the conse-sum demanded, this does not obviate the necessity of proving notice; quences of of and Lord Ellenborough in that case observed, This offer is neither give notice an acknowledgment nor a waiver to obviate the necessity of expressly be proving notice of the dishonour of the bill. He might have offered to waived, or give his acceptance at one or two months, although, being entitled to notice of the dishonour of the former bill, he had received none, and although upon this compromise being refused, he meant to rely upon this objection. If the plaintiff accepted the offer, good and well, if not, things were to remain on the same footing as before it was made ;" (308) otherwise done away. 8 Cuming French, 2 Campb. 106. (308) There are many circumstances which in point of law amount to a waiver of notice. And the doctrines respecting waiver of notice equally apply to the non-acceptance, and non-payment of bills, and non-payment of notes, the cases on this subject which have been decided in the United States, will be here collected together. If the maker of a note abscond, and the indorser before it becomes due, informs the holder of the fact, and requests delay, and agrees to give a new note for the amount, it is a waiver of demand and notice of non-payment. Leffingwell v. White, 1 John. Cas. 99. So if the indorser, before the note becomes due, takes an assignment of all the property of the maker as security for his indorsements. Bond v. Farnham, 5 Mass. Rep. 170. But it will be otherwise if he take an assignment of property only to secure him against his indorsement of other specified notes. Ibid. And a waiver of notice or an agreement to be bound by a notice different from that which the law requires, may be inferred from the conduct of the parties. Upon this ground it has been decided in Massachusetts, that if the parties do their business at a particular bank at which a note is made payable, they will be presumed to agree to be bound by the usage of that bank as to demand and notice, although such usage may be entirely at variance with the general rules of law; as for instance, if the usage of the bank be to make a demand on the maker before the note becomes due, or to give notice to the indorser before or after the time required by law; or by putting letters into a post-office, or by any other mode or conveyance varying from the rules of law. Jones v. Fales, 4 Mass. Rep. 245. Widgery v. Munroe, 6 Mass. Rep. 449. President, Directors & Co. of the Lincoln and Kennebeck Bank v. Hammett, 9 Mass. Rep. 159. The same v. Page, 9 Mass. 155. These decisions do not seem to have been recognised in any other state; and may perhaps be thought to deserve further consideration. A promise to pay a dishonoured note or bill made with a full knowledge of all the circumstances, will also be deemed a waiver of a due demand and notice. Donaldson v. Means, 4 Dall. Rep. 109. Pierson v. Hooker, 3 John. Rep. 68. Duryee v. Denni son, 5 John. Rep. 248. Miller v. Hackley, 5 John. Rep. 375. Copp v. MDugall, 9 Mass. Rep. 1. Hopkins v. Liswell, 12 Mass. Rep. 52. But the promise must be explicit and made out by the most clear and unequivocal evidence. Therefore where the indorser speaking of several bills on different places, and under different circumstances, said "he would take care of them;" or " he would see them paid ;" it was held not suffi cient evidence of a promise to pay one of the bills on which no notice of non-acceptance had been given. Miller v. Hackley, 5 John. Rep. 375. and see Griffin v. Goff, 12 John. Rep. 423. And what a man says under the surprise of a sudden and unexpected demand ought to be construed with a good deal of strictness. May v. Coffin, 4 Mass. Rep. 341. Indeed it seems to have been held that under such circumstances a promise to pay a bill which had been protested for non-acceptance, and of which due notice had not been given to the indorser, did not bind him, as it was wholly without consideration. and especially as he retracted his promise within a few days afterwards. May v. Coffin. And it has been repeatedly decided in Massachusetts, that if an indorser under ignorance of the law, or through mistake of the law, promise to pay a dishonoured bill or note, he is not bound by such promise. Warder v. Tucker, 7 Mass. Rep. 449. Freeman v. Boynton, 7 Mass. Rep. 483. May v. Coffin. And it seems generally agreed that a promise to pay, or an actual payment under a mistake of the facts, is not binding. Donaldson v. Means. Garland v. The Salem Bank, 9 Mass. Rep. 408. Crain v. Colwell, 8 John. Rep. 384. Tower v. Durell, 9 Mass. Rep. 332. Fothering ham v. Price's Ex. 1 Bay's Rep. 291. Griffin v. Goff, 12 John. Rep. 423. Trimble v. Thorne, 16 John. 152. But a waiver of a right to notice made by the indorser of a note, does not in general excuse the holder from demanding payment of the maker at the maturity of the note, for it may be done in the confidence that the maker will punctually pay it. Berkshire Bank v. Jones, 6 Mass. Rep. 524. And a qualified or conditional promise of the indorser to quences of a neglect to be and it has recently been considered, that admitting that a drawer of a 7thly. How bill may by circumstances impliedly waive his right of defence founded the conse on the laches of the holder; yet an indorser can only do so by an express waiver, there being a material distinction in this respect between give notice the situation of a drawer and indorser." Where the plaintiff relies on may a statement by the indorser after the bill was due, that he knew he was waived, or discharged, but that the plaintiff had behaved so well to him in money done away. matters, that he should take no advantage of it, but would pay the money; he must, it is said, also prove a demand on the acceptor. otherwise A person who has been once discharged by laches from his liability, [240] is always discharged; and therefore where two or more parties to a bill have been so discharged, but one of them not knowing of the laches, pays it, such payment is in his own wrong, and he cannot recover the money from another of such parties.* better secu THE Custom of merchants is stated to be, that if the drawee of a bill Sect. 4. Of of exchange abscond before the day when the bill is due, the holder protest for may protest it, in order to have better security for the payment, and should give notice to the drawer and indorsers of the absconding of the rity. drawee; and if the acceptor of a foreign bill become bankrupt before it is due, it seems that the holder may also in such case protest for better security; but the acceptor is not, on account of the bankruptcy pay, which is rejected by the holder, is not a waiver of notice. Agan v. McManus, 11 John. Rep. 180. Crain v. Colwell, 8 John. Rep. 180. It seems that if an indorsee of a note cannot recover upon it against the maker, by reason of usury between the maker and his indorser, of which usury the indorsee was ignorant at the time of the purchase, he may recover against such indorser, without having given him due notice of the dishonour of the note. Copp v. M'Dugall, 9 Mass. Rep. 1. If the drawer of a promissory note be known by the indorser to have been insolvent when the note was made, and when it became due, the indorser is, nevertheless, entitled to due notice of non payment by the drawer. But if the indorser has accepted from the drawer, a general assignment of his estate and effects, notice is not necessary. Barton v. Baker. 1 Serg. & Rawle, 334. When the drawer of a note is known to be a bankrupt or insolvent demand and notice are not necessary. Clark v. Minton, 2 Const. Rep. 682. But it must be an utter and declared insolvency of record and known as such to the indorser. Kiddell v. Ford. Ibid. 678. better secu rity. Sect. 4. Of of the drawer, compellable to give this security." The neglect to make protest for this protest will not affect the holder's remedy against the drawer and indorsers, and its principal use appears to be, that by giving notice to the drawer and indorsers of the situation of the acceptor, by which it is become improbable that payment will be made, they are enabled by other means to provide for the payment of the bill when due, and thereby prevent the loss of re-exchange, &c. occasioned by the return of the bill. It may be collected, that though the drawer or indorsers refuse to give better security, the holder must nevertheless wait till the bill be due, before he can sue either of those parties. test. Sect. 5. Of ANY person may, without the consent of the drawer or indorsers, acceptance accept the bill, supra protest, for better security. This security, it supra pro- is said, is usually given by making another subscription under the pro[241 test, that the person who becomes new security, will be bound as principal for the payment of the sum mentioned in the bill, upon which the protest is made. When a foreign bill is protested for non-acceptance, or for better security, the drawee or any other person may accept it supra protest, which acceptance is so called, from the manner in which it is made. This description of acceptance is frequently made upon a foreign bill, for the purpose either of promoting the negotiation of the bill when the drawee's credit is suspected, or to save the reputation, and prevent the prosecution of some of the parties, where the drawee either cannot be found, is not capable of making a contract, or refuses to accept; and such acceptance is called an acceptance for the honour of the person on whose behalf it is made, and it enures to the benefit of all who become parties subsequently to that person." 1st. By The drawee, though he may not choose to accept on account of him whommade in whose favour he is advised the bill is drawn, may nevertheless accept for the account and honour of the drawer, or in case he do not choose to accept on account of the drawer, he may accept for the honour of the indorser; in which latter case he should immediately send the protest on which he made the acceptance to the indorser. It is said, that if the holder be dissatisfied with the acceptance supra protest, and insist on a simple acceptance, and protest the bill for want of it, the acceptor should renounce the acceptance he had made, and should insist that it be cancelled. When the drawee will not accept the bill, any other person may, after refusal by him, and after protest, accept it for the honour of the bill, or of the drawer, or of any particular indorser ; and even a |