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view, and in a totally different connection. There is a very numerous class of cases on the subject, how far a promise to pay, or other circumstances, such as the acts or words of the drawer and indorser, go to prove that they have received notice, or are evidence that a proper demand has been made and notice given. In many of the books on the subject, and in frequent instances in the authorities, the distinction between the two classes of cases is ignored, and cases and principles applicable to the one are cited as authorities, or applied to the facts, in the other. So that the law is in a state of much confusion and uncertainty.(k) It is also to be observed, that, from the facts as reported, there is frequently much uncertainty whether there were laches or not, and it is equally uncertain upon what principles the cases were decided. We will first consider the rules of law laid down by the English authorities with respect to presumptive evidence in questions of this kind; and we may remark, that, although the English law seems, generally, to be more strict in its requirements of proof of demand and notice than the American law, yet, on the point of presumptive evidence, the former would appear to be much more lax than the latter, and in some instances, we think, unjustifiably so.
There are several cases which hold that a mere acknowledg
(k) The ablest discussion to be found in the reports, and the only one where the principles and cases have been thoroughly treated, is the masterly opinion of Cowen, J, in Tebbetts v. Dowd, 23 Wend. 379, which will well repay perusal. The learned judge said, on the point now under consideration, p. 387: "In speaking of this head, I shall hereafter, for the sake of brevity, call it 'waiver,' and I must again repeat, that it is entirely distinct from, and founded on, a state of facts opposed to another ground, on which I think the judgment of the court below still more clearly sustainable than that of waiver. I mean the ground that, where no laches appear in proof, the promise, or other equivocal act of the drawer or indorser, shall be received as prima facie evidence that there were no laches; that presentment, protest, notice, &c. were in fact made or given, the promise, &e thus coming in place of the ordinary direct proof of those facts. It is necessary to adhere with great strictness to the distinction, inasmuch as all the treatises I have seen on bills of exchange or notes confound waiver with the opposite ground. They state both these grounds together, as if they belonged to the same head, often citing cases in respect to one ground which belonged to the other; thus introducing a degree of confusion into this branch of the law to which the decisions give no countenance whatever; nay, to which they stand directly opposed. And this brings me to the second general head, presumptive evidence." As to the latter remark concerning the authorities, we shall see that the learned judge is incorrect, because we find the courts, even in the same jurisdiction, applying the principles applicable to presumptive evidence at times, and again decidng in a way which, by no method, can be reconciled with them.
ment of liability, or a promise to pay, after maturity, by a drawer or indorser, is sufficient evidence by which a jury may infer protest, demand, or notice,(/) and also a presentment at the
(1) Wood v Brown, 1 Stark. 217, where the plaintiff, instead of proving notice, &c., gave in evidence a letter of the defendant, a drawer and indorser, stating that the bill would be paid before the next term. Held sufficient. Taylor v. Jones, 2 Camp. 105, where the indorser of a note two years after maturity promised to pay, but asked for further time. Held sufficient evidence of presentment and notice. Gibbon v. Coggon, id. 188, where the drawer of a foreign bill, on demand being made, said that his affairs were much deranged, but that he would be glad to pay as soon as his accounts with his agent were cleared. Held evidence of protest and notice. Lord Ellenborough said: "By the promise to pay, he admits his liability; he admits the existence of everything which is necessary to render him liable. When called upon for payment of the bill, he ought to have objected that there was no protest. Instead of that, he promises to pay it. I must, therefore, presume that he had due notice, and that a protest was regularly drawn up by a notary." Greenway v. Hindley, 4 Camp. 52, where the evidence of presentment, protest, and notice of a foreign bill was a statement by one of the drawers that the bill was regular, that it was due from him and his partner, and that he had come to make an arrangement for its payment, with interest. Presentment, protest, and notice were alleged in the declaration. Lundie e. Robertson, 7 East, 231, 3 J. P. Smith, 225, where the indorser of a bill promised to pay it if the holder would call again with the account. Held evidence of presentment and notice. Potter v. Rayworth, 13 East, 417, where an indorser's promise to pay to a subsequent indorser was held evidence of notice, in an action by an intermediate indorser. Lord Ellenborough, C. J. said : Whether the promise to pay was made to the plaintiff, or to 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 due notice of the dishonor." See Patterson v. Becher, 6 J. B. Moore, 319, supra, p. 603, note z; Hicks v. Duke of Beaufort, 4 Bing. N. C. 229, 5 Scott, 598, where the drawer of a bill said: "If the acceptor does not pay, I must; but exhaust all your influence with the acceptor first." The drawer afterwards directed the holder to raise money on his life and that of the acceptor, but the negotiation was afterwards broken off. Held evidence by which the jury might or might not infer notice. Parke, B., Burgh v. Legge, 5 M. & W. 418, 419; Campbell v. Webster, 2 C. B. 258, where letters from the drawer of a foreign bill containing an admission of liability, or a promise to pay, though conditional as to the mode of payment, were held presumptive evidence of protest and notice. See Metcalfe v. Richardson, 11 id. 1011, where the drawer of a bill remarked to the holder's clerk the day after maturity, the latter having said that the bill had been duly presented, and that the acceptor could not pay it, - that he would see the holder about it. Held, that it was properly left to the jury to infer from the conversation that the drawer had due notice. In Norris v. Salomonson, 4 Scott, 257, the only evidence of notice to the drawer was the testimony of a witness that the defendant said to him, in reply to an inquiry whether he was aware or not that the bill had been dishonored, "Yes, I have had a very civil letter on the subject from Mr. Gunnell, an intermediate indorsee, and I will call and arrange it." Held sufficient evidence of notice. Brownell v. Bonney, 1 Q. B. 39, where the drawer of a bill was told that a subsequent indorser had been sued on the bill, and that as he, the defendant, had received the cash, and knew, the day before maturity, that the bill would not be paid, he ought to pay it. The defendant replied, that he should not avail himself of the informality of the notice, but would pay the bill. Held evidence by which the jury might infer due notice. Parke, B., Burgh v.
place where the bill is payable.(m) The reason for this is, that it is an admission against interest; that it is highly improbable that a party, knowing, as must be supposed, his legal liability, and what will constitute a discharge of that liability, should admit it, or promise to pay the debt, unless all the proper measures had been taken to cause that liability to attach. Among other circumstances which have been held to be presumptive evidence of demand and notice are part payment, without objection to any want of, or informality in, the presentment and notice; (n) an offer to pay a part,(o) or to pay by instal
Legge, 5 M. & W. 418, 419. In Jones v. O'Brie., C. B 1854, 26 Eng. L. & Eq. 283, the proof was, that the witness could not state positively that he had given proper notice, but produced a note from the defendant, a drawer, saying that he would see the bill arranged. The latter subsequently promised to give a judgment for the amount. The defendant testified that, to the best of his belief, he had no knowledge of dishonor until a fortnight after maturity. The judge told the jury that they must arrive at the conclusion that notice was given the day of maturity; that this might be proved by a promise to pay the bill; but if they believed the defendant, that they should find for him. A verdict for the plaintiff was sustained. Chapman v. Annett, 1 Car. & K. 552, seems opposed to these cases. There was no evidence of notice, but the defendant had said that he would try to get the acceptor to pay the bill; that he would call and have the matter arranged; and that he would have the bill taken up. There was a book kept by the plaintiff, in which entries of notices were made The book was not produced. Pollock, C. B., instead of leaving the question to the jury, acknowledged that the defendant's conversation amounted to a promise to pay; but said he was of opinion that there was no notice, and directed a verdict for the defendant. He also said that it was for the court to say whether the promise amounted to a waiver. In an action by a second indorser against the drawer, proof that the defendant had furnished the first indorsee with funds to pay the bill and costs, under a judge's order for a stay of proceedings, will not dispense with proof of notice. Holmes v. Staines, 3 Car. & K. 19.
(m) Hodge v. Fillis, 3 Camp. 463, an action against the acceptor.
(n) Vaughan v. Fuller, 2 Stra 1246. The following is the report of this case: "In an action upon a promissory note by the indorsee against an indorser, it was proved that the defendant had paid part of the money. And Chief Justice Lee held that sufficient to dispense with the proving a demand upon the maker of the note." Horford v. Wilson, I Taunt. 12.
(0) The authorities on this point are in conflict. In Dixon v. Elliott, 5 Car. & P. 437, the bill was shown to the defendant, an indorser, and inquiries were made for the acceptor and drawer. The indorser said if the plaintiff would take 10s. on the pound, he would secure it to them. The offer does not appear to have been accepted. Park, J. held the evidence sufficient to dispense with proof of dishonor. In Margetson v. Aitken, Danson & L. 187, 3 Car. & P. 338, Lord Tenterden, C. J. and Bayley. J. held that, if the indorser offers to pay the holder 88 on the pound, on the amount, this dispenses with proof of notice. The offer was rejected. Contra, Standage v. Creighton, 5 Car. & P. 406, where there was evidence that notice had been sent addressed to the defendant, an indorser of a bill, at two places, but there was no evidence that he lived
ments; (p) service of notice to produce at the trial the letter containing notice of dishonor uncomplied with; (g) objecting to payment upon other grounds than laches in presentment and notice.(r) Some of the cases have almost gone so far, that it would seem that the only safe course for an indorser or drawer, when payment is demanded of him, would be to expressly deny both presentment and notice. Thus, for instance, a verdict against the drawer of a bill was sustained, where the only evidence of notice was, that the defendant, two days after maturity, sent a person to the plaintiff to say that he had been defrauded of the bill, and should defend any action upon it.(s) Whether
in either. Proof that the defendant's attorney had offered to pay £30 on the bill, which was for £100, and to secure the residue by warrant of attorney, was held not to be sufficient to dispense with proof of notice. The offer does not appear to have been accepted. Lord Denman, C. J. said: "I think that that is not sufficient to dispense with proof of the notice of dishonor. The defendant might, if time had been given hin, have been willing to have waived any objection with respect to notice of dishonor." In Cuming v. French, 2 Camp. 106, note. the drawer, on being arrested, offered as a compromise to give his bill at one or two months. His offer was rejected. Held not to obviate the necessity of demand and notice. Lord Ellenborough said: This offer is neither an acknowledgment nor a waiver, to obviate the necessity of expressly proving notice of the dishonor of the bill He might have offered to give his acceptance at one or two months, although, being entitled to notice of the dis honor of the bill, he had received none, and although, upon this compromise being refused, he meant to rely upon the 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.” (p) Croxen Worthen, 5 M. & W. 5, an action against the maker of a note payable at a specified place. There was no evidence of a presentment there, which was alleged in the declaration, but the defendant had promised to pay the note by instalments. Alderson, B. said: The defendant is supposed to know the law; he knows, therefore, that he is not liable, unless the note has been duly presented. With that knowledge, he undertakes to pay it. Is not that evidence for the jury that he knows it has been presented?' Gunson v. Metz, 1 B. & C. 193. 2 Dow. & R. 334, an action against the drawer of a bill. An agreement between the drawer and a prior indorser, reciting that the defendant had drawn, among others, the bill in question, that it was overdue, and ought to be in the hands of the prior indorser, and that the latter should take the money due him on the bill by instalments, was held evidence of notice.
(q) See the cases cited infra, note s. See Campbell v. Webster, 2 C. B. 258. (r) See the cases cited infra, note s. See Campbell v. Webster, 2 C. B. 258. (s) Wilkins v. Jadis, 1 Moody & R. 41, where Lord Tenterden, C. J. said: "It will be a question for the jury whether the defendant had received notice from the plaintiff, or some party to the bill. They certainly must be satisfied that notice was given; mere knowledge of the dishonor is not sufficient. But is there not evidence of notice? The communication that any action will be defended is not put on the ground of want of notice, but of fraud, and at that time the defendant knew the holders. How was he likely to know that fact, unless by having received notice? It is a question of fact for the jury, whether he had so or not; and their verdict will be given accordingly " In
a conditional offer of payment, by way of compromise, which has not been accepted, is evidence of demand and notice, seems
Roberts v. Bradshaw, 1 Stark. 28, the plaintiff's clerk swore, that on the day of maturity the plaintiff gave him two papers to compare with each other, one of which he produced, purporting to be a notice of dishonor of the bill. He stated that, the day after he compared the papers, he carried a letter from the plaintiff to the defendant. This not being held sufficient evidence of notice, the plaintiff then proved service of a notice on the defendant, calling on him to produce a letter from the plaintiff, giving notice of the dishonor of the bill. A verdict for the plaintiff on the above facts was sustained. Lord Ellenborough said: I think certainly that there is a looseness in this evidence, and you may afterwards move the court upon it. Supposing, however, that the paper delivered had been a perfect blank, or contained matter wholly unconnected with the dishonor of the bill, you might have produced it, and shown the fact to be so, since it is evident what letter was the object of the plaintiff's notice. This is the first time the identity of such a letter has been so minutely criticised, and the proof might, in many instances, be attended with great difficulty; as where letters, after being written, are placed upon the table, it might afterwards be exceedingly difficult to identify them with those afterwards put into the post-office." In the ensuing term, the court refused a rule nisi for a new trial In Booth . Jacobs, 3 Nev. & M. 351, an action against the drawer, on two bills, one drawn on Fenton and the other on Phillips, a verdict for the plaintiff was sustained, on the ground that the following letter, written six days after maturity, was evidence of due notice of both bills "Your letter this day came to hand. We were rather surprised at the latter part of your letter, wherein you state you would take proceedings against us. We fully expected that Phillips's bill would have been paid It will be impossible for me to go out of town to settle our accounts till after Christmas, when we will remit you some cash. Trade is at a stand still in London at present. We have been doing very little business for these last three weeks, as we are determined not to give any more credit having had such severe losses lately. We have taken up £ 100 of return bills of Mr. Fenton's, besides other bills on other shops which were returned, which makes us short of cash at this present time. I have called this day on Mr. Phillips about his bill. He was not at home. I will call again to-morrow. You may make yourselves very easy about what we owe you. I will write to you again in a day or
Law expenses do neither party any good." It is somewhat difficult to see what evidence of due notice of both bills is contained in this letter. In Bell v. Frankis, 4 Man. & G. 446, 5 Scott, N. R. 460, the defendant, a drawer, told the witness he expected to receive by post a notice of dishonor of the bill; and afterwards gave him a letter which he had received by mail, and requested him to negotiate a renewal of the bill. The letter, which was in the plaintiff's hands, was not produced at the trial. Held evidence of due notice, but a verdict for the defendant was not disturbed. In Curlewis v. Corfield, 1 Q. B. 814, 1 Gale & D. 489, the plaintiff proved that he sent a letter to the drawer, which was put into the letter-box of the latter, an attorney, at his office. A service of notice on the defendant, calling on him to produce a letter sent to him that day, containing notice of dishonor of the bill, was also proved; and the defendant failed to produce it. After this time the defendant told the plaintiff's attorney that the bill had not been presented in due time, saying nothing about notice. A verdict for the plaintiff was sustained, on the ground that the above facts were evidence of due notice. Lord Denman, C. J. said: "Taking the whole of this case together, I think there was evidence to go to the jury, The plaintiff proved that some letter was out into the defendant's box on Sept. 28th; and that notice to produce, not