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ance; (m) an agreement with a bank at which a note is discounted, to attend to and take care of it, with directions that the baik notice for the maker should be sent to the care of the indorser, even though the agreement is made before the time of delivering the

nobody would contend for the proposition. And these blank indorsements are nothing more than a standing power to that effect. If the defendants had intended to dispense with notice, they would have signed, as makers, at once, and become absolutely bound. The very fact of confining their security on the paper to the character of indorsers, shows that they meant to limit their liability accordingly, and to be entitled to all the benefits incident to it. An indorsement in blank, in judgment of law, is as precise and distinct, and as well known and understood, as if the liability or condition of the usual demand and notice had been written out upon the back of the paper; and nothing short of the clearest evidence of the assent of the defendants, express or implied, should be regarded as sufficient to waive the condition or change the nature of the contract, making it an absolute instead of a conditional one. Upon the whole, I am satisfied that, to allow the circumstances put forth here, whether taken separately or in the aggregate as laying the foundation for an inference of a waiver of demand and notice, would be going farther than any case has yet gone in dispensing with the contract of the indorser, and farther than will be consistent with the uniformity and stability of the law, so important in respect to commercial paper. Indeed, if we analyze the facts iu the case, and reduce them to the particulars bearing upon the defendants, and for which they may properly be held responsible, it will be found that there is little else in it deserving the name of evidence, independently of the unlimited power given to the brother to use the name of their firm as indorsers. leading, even in the remotest degree, to an assent to the waiver. And we can hardly be expected to infer it from the fact that the power given to indorse is a general one. On the contrary, we suppose that the limitation of the liability assumed to that of indorsement, and that only, shows clearly enough an intention to stand upon the paper in that character, and in that only, however extended and onerous the liability might become.”

(m) Leffingwell v. White, 1 Johns. Cas. 99, where the indorser informed the folder that the maker had absconded, and said that, being secured, he would give a new vote, and requested time. While these negotiations were pending, the note fell due. Des mand and notice were held to be waived. Gove v. Vining, 7 Met. 212, where the note was payable at either bank in Boston On the first day of grace the holder sent a messenger with the note, and a written notice to the indorser requesting payment, to the house where the maker and indorser both resided. The maker was absent, but the indorser read the notice, and told the messenger that the maker would see the holder in a short time, and expressed a wish that the note should not be sued until the indoreca should see the holder. No demand was afterwards made of the maker, nor any notice given to the indorser. Shaw, C. J. said: “Although this was stated as the request of the promisor, yet it was made by the indorser, without any restriction or qualitication on her part, and therefore may be considered the same as if it were her own.

It was, therefore, a request by the indorser to the holders, through their agent, with full notice thu.. the note was then nominally due, though not legally payable till three days after, fo forbearance of payment. It was calculated to induce the holder to believe that the ps.ties who were liable were about making some arrangement or some proposal hy wwich it would be paid, if he would forbear resorting to coercive measures for a short time. And the court are of opinion that, when the indorser, at or shortly before the time when the note becomes due, says to the holder that an arrangement for its ; qy.

indorsement;(n) an agreement by the indorser with the maker, to pay the note and to take it back into his own hands ; (o) an agreement by the indorser to pay, if the note could not be collected of the maker by due course of law ;(p) a verbal agree

; ment between the indorser and the indorsee, by which the latter agreed to inform the maker of the indorsement, and to wait six months after maturity before making cost upon the note; (9) a refusal by the drawer to give his address, with a declaration to the holder that the acceptor would not pay, coupled with a prom ise to call in a few days to inquire whether the bill had been paid or not; (c) a declaration by the drawer of a check, who was the paying teller of the bank on which it was drawn, three days before maturity, that the check would not be paid ; (s) part payinent of a check before maturity, as it would seem ; (t) a declaration by the indorser of a check to the holder, that the maker cannot pay, that the latter has made an assignment, and has therein preferred him ; (u) all have respectively been considered as a waiver of demand and notice.

ment is about being made, and in direct terms or by reasonable implication requests the holder to wait and give time, it amounts to an assurance that the note will be paid, that the promisor or indorser will pay it, and is a waiver of demand and notice. It tends to put the holder off his guard, and induces him to forego making a demand at the proper time and place; and it would be contrary to good faith to set up such want of demand and notice, caused perhaps by such forbearance, as a ground of defence.” But in Sussex Bank v. Baldwin, 2 Harrison, 487, 495, the defendant sent a letter to the cashier of the bank a week or two before maturity, stating that the maker could not pay, and requesting that the note might be renewed. The defendant was discharged for want of proof of notice.

(n) Taunton Bank o. Richardson, 5 Pick. 436. Held a waiver of demand and no tice, or at least evidence from which a jury might infer such waiver.

(0) Marshall v. Mitchell, 35 Maine, 221. Held a waiver of demand and notice. (p) Backus v. Shipherd, 11 Wend. 629. (9) Drinkwater v. Tebbetts, 17 Maine, 16, where notice was waived.

(r) Phipson o. Kneller, 1 Stark. 116, 4 Camp. 285, where notice was waived. Lord Ellenborough said: “No legal proposition can be more clear than that, where party says, 'My residence is immaterial, I will inquire whether the bill is paid,' he thereby takes upon himself the onus of making inquiry, and dispenses with notice.”

(s) Minturn 0. Fisher, 7 Calif. 573.

(t) In Levy v. Peters, 9 S. & R. 125, 128, Tilghman, C. J. said: “If one draws a check on a bank, payable some time after date, and before the time of payment the drawer pays part, I should suppose it must be the intent of the parties that the check should not be presented. I doubt whether the bank would pay the balance in such case, without a special order from the drawer, or some written explanation. On this point, however, I give no opinion, as the case does not require it"

(u) Taylor v. French, 4 E. D. Smith, 458. VOL. I.


Whether acts other than a promise to pay will constitute a waiver or not has been also somewhat discussed. Thus, where an indorser, after maturity, agreed with the maker to take up the note, to give back to him the property for which the note was given, and to return the note without further consideration, this was held to constitute a waiver of demand and notice. (1) A confession of judgment has also been held admissible evidence of waiver, but not conclusive.(w) Where the drawer of a bill

) which had been duly presented, but was unpaid, gave the holder his own note for the amount, it was held that it was no defence to the note to prove laches in giving notice of nonpayment of the bill ; (2) but the giving of a bond would seem to have been held to be only prima facie evidence of waiver.(y) So where the drawer himself undertakes to present a bill after maturity,(z) although inquiries and attempts by an indorser to induce the maker to pay have been held not to be a waiver.(a) The fact that an indorser appeared at the meeting of the creditors, and assumed the character of a creditor for a large sum,

(v) Andrews v. Boyd, 3 Met. 434, where the defendant had sold the maker a vessel for $ 2,800, of which $ 800 was paid in cash, and the remainder by two notes for $1,000 each. The defendant offered evidence to show that the vessel, from fall in prices, and front wear and tear, was not worth the amount of the notes. Held iminaterial. Shaw, C. J. said : “ When the indorser took back the property which was the original consideration for the notes, and agreed in express terms with the promisors that he would pay and take up the note now in suit, and deliver it to them without further consideration, and this after the note became due, and after he must have known whether he had received due notice of its non-payment or not, we cannot perceive why this is not evidence from which a jury might properly infer that he had received due notice of the non-payment of the note from the holder. But if this were not clear, we are of opinion that, when the indorser took the property of the promisors into his own hands, being either of sufficient amount and value to pay the note, or perhaps being all they could give him ; and when, with such funds as they did furnish him with, he agreed absolutely to pay and take up the note on which he stood as indorser, without further consideration from them, it was a waiver of notice on his part ”

(w) See Richter o, Selin, 8 S. & R. 425, where Duncan, J. said : “ The confession of judgment may be evidence of an acknowledgment of liability, but is not conclusivo evidence. It is not a legal presumption. It is capable of being explained and repelled by the circumstances under which it was given. But if the defendant confessed the judgment by any false suggestion of the drawers, and on the faith of a valid security to indemnify him, which security was found to be immediately worthless, .... all this would be evidence to repel the presumption arising from the judgment and security."

(.r) Leonard 1. Hastings, 9 Calif. 236.
(y) Ralston v. Bullitts, 3 Bibh, 261; Mills v. Rouse, 2 Littell, 203.
(z) See Cram o. Sherburne, 14 Maine, 48.
(a) Hussey v. Freeman, 10 Mass. 84.

incuding the note sued on, has been held no waiver of demand and notice ; (6) but we should say that it might be regarded as evidence of such waiver.(c)

Whether particular conversations amount to a waiver or not has been held to be a question of fact for the jury, and not one of law for the court,(d) but it has also been said that questions

(6) Miranda v. City Bank, 6 La. 740. (c) See Martin d. Ingersoll, 8 Pick. I.

(d) Union Bank v. Magruder, 7 Pet. 287, where Story, J. said : “ The plaintiffs, on the foregoing evidence, prayed the court to instruct the jury as follows : “That, if the jury believe the defendant held the above conversations as stated by the witnesses, such conversations amount to a waiver of the objection of the want of demand and notice; and the defendant is liable on the note, if the jury should believe that the defendant made the acknowledgments and declarations stated in the conversations in reference to the claim of the bank upon hinı as indorser of the note.' Which the court refused. And the plaintiffs then prayed the court to instruct the jury as follows: “That, if the jury believe, from the evidence aforesaid, that the defendant, after knowing of his discharge from liability as indorser of the said note, by the neglect to demand and give notice, said that he meant to pay the note, but should take his own time for it, and would not put himself in the power of the bank”; and that the bank forbore bringing suit, from the time of said conversation, about three or four months after the note fell due, until the date of the writ issued in this cause, then the plaintiffs are entitled to recover on the second count of the declaration. Which, also, the court refused to give..... The question is, whether these instructions, thus propounded, were rightly refused by the court. And we are of opinion that they were. The first requests the court to instruct the jury upon a mere matter of fact, deducible from the evidence, and which it was the proper province of the jury to decide. It asks the court to declare that the conversations stated, sufficiently loose and indeterminate in themselves, amounted to a waiver of the objection of the want of demand and notice. Whether these did amount to such a waiver was not matter of law, but of fact; and the sufficiency of the proof for this purpose was for the consideration of the jury. The second instruction is open to the same objection. It calls upon the court to decide upon the sufficiency of the proof; to establish that there was a forbearance by the plaintiffs to sue the defendant upon the note, and of the promise of the defendant, in consideration of the forbearance, to pay the same. That was the very matter upon which the jury were to respond, as matter of fact. It is also open to the additional objection, that it asks the court to decide this point, not upon the whole evidence, but upon a single sentence of the conversations stated, without the slightest reference to the manner in which the meaning and effect of that sentence was, or might be, controlled by the other points of the conversations, or the attendant circumstances. In either view, it was properly refused.” So Carmichael 0. Bank of Pennsylvania, 4 How. Miss. 567, where the court refused to charge, that the declarations of the defendant, a second indorser, that the first indorser “considered that they were exonerated, that he himself thought differently, there was no use in resisting, that the bills must be provided for, and that the first indorser stood between him and danger, were not an absolute promise, and did not amount to a waiver in law." Held, that the refusal was correct. Lary v. Young, 8 Eng. Ark. 401. Sce Curtiss v. Martin, 20 Ill. 557 ; Whitaker v. Morris, Esp. N. P 58.


of waiver are matters of law.(e) We should say that the question, whether a promise was really made, and what it is, taken in comection with all the facts of the case, was a matter of fact, as well as whether the promise was made with a knowledge of all the material facts. But what construction is to be put upon the promise and the knowledge, when proved, must be a question of law.

3. Where the Waiver occurs on the Day of Maturity. It will be seen that the general principle upon which most of these cases on the subject of waiver before maturity depend is, that the indorser has, by act or word, done something calculated to mislead the holder, and induce him to forego taking the usual steps to charge the indorser. The same principle would apply, in our opinion, when the declarations are made on the day of maturity. Thus, where the holder asked the indorser, on the day the note matured, if it would be best to call upon the makers, and the indorser replied that it would be of no use, a regular demand and notice were considered as waived. (f) So a verbal request by the indorser to the holder not to protest the note was held to be a waiver of demand. (g)

(e) In Creamer o. Perry, 17 Pick. 332, Shaw, C. J. said: “ 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, prac. tical, and uniform, as well as reasonable, equitable, and intelligible.”

(f) See Barker v. Parker, 6 Pick. 80. There were other circumstances in the case, but the court seems to have considered the conversation enough to amount to a waiver. In Burgh v. Legge, 5 M. & W. 418, an action against the indorser of two bills due on April 4th and 5th, the defendant called on the plaintiff on April 4th, and said that one of the bills would not be paid, as the acceptor was bankrupt; that the other bill would not be paid, as he held some pictures as security, and had not been able to sell them; and that the acceptor had no other means of raising the money. He also said that it was not worth while to trouble him with a twopenny-post letter, to give notice, as it was not worth the money, and that he would bring the plaintiff some money the next week, in part payment of the bills. Held no evidence to support an allegation of due notice, but that it probably would support an allegation of dispensation of notice.

(91 Scott r. Greer, 10 Penn. State, 103. But in Prideaux v. Collier, 2 Stark. 57, the drawee told the holder the day before maturity that he had no effects of the drawer in his hands, but would probably be supplied before the next day. On maturity the drawer told the holder that he hoped the bill would be paid ; that he would see what he could do ; would endeavor to provide effects; and would see him again. The bill was

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