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the neglect, and the burden is upon the plaintiff to prove this. In the cases on presumptive evidence there can be no such requirement, and the cases on this subject, in which the defendant has been discharged for want of such proof, are entirely incollsistent with the doctrine itself. For upon what is it founded, unless upon the ground that the presentment was regular, and the notice duly given ? Hence, to say that there must be knowledge of neglect would be, as has been remarked, a legal solecism.(i) But there appear also to be authorities in which the opposite mistake has been made. Thus it has been said, in a Treatise on Bills, that (j) “a promise to pay will entirely dis
(i) Cowen, J., in Tebbetts v. Dowd, 23 Wend. 379, 392, after citing the English cases, said : “ In this whole score of cases, and more, ranging from 1730 to 1939, no trace of the rule appears, that, in order to make the promise available as an admission, it is necessary to show that the drawer or indorser was aware of laches, which the promise was intended to cure. A remedy for laches is not the object. To require knowledge of laches would render every case going on the principle of presumptive evidence a legal solecism. The ground is, that the promise shall be received, not as binding per se, but as evidence that there were no laches; in other words, that regular presentment had been made, that it was followed by non-acceptance or non-payment, of which notice had been duly given. Otherwise, why should the man promise? Will any one do so without knowing that he is liable ? Common experience shows that he will not. The English cases are therefore in exact accordance with the principles of presumptive evidence. These principles are but another name for such connections between moral causes and effects as are evinced by general observation.” The case of Trimble v. Thorne, 16 Johns. 152, which is overruled by this case, was denied by Hosmer, C. J., in Breed v. Hillhouse, 7 Conn. 523, who said that this case, so far as my knowledge extends, stands alone and unsupported." So Benneti, J., in Russell v. Buck, 11 Vt. 166, 183, said : " It is believed this case is opposed to the whole current of decisions, and establishes a rule of evidence not supported upon principle or by authority." Collier, C. J., Kennon v. McRea, 7 Port. Ala. 175, 183; Strong, J., Loose v Loose, 36 Penn. State, 538, 545.
() Byles on Bills, p. 237, citing Taylor v. Jones, 2 Camp. 105; Stevens v. Lynch, 12 East, 38, 2 Camp. 332. But neither of these cases bears out the propo-ition. The first case was one of presumptive evidence. The only evidence of presentment of the note and notice was, that the indorser, two years after maturity, promised to pay, and requested time. Bayley, J., 2 Camp. 105, “ held that, where a party to a bill or note, knowing it to be due, and knowing that he was entitled to have it presented when due to the acceptor or maker, and to receive notice of its dishonor, promises to pay it, this is presumptive evidence of the presentment and notice, and he is bound by the promise so made.” This latter clause, although it may seem to support the doctrine contended for, is altogether too uncertain. The judge may have intended to have said that it was binding only until laches appear. Or, in other words, that here is evidence of due presentment and notice, and nothing to control it; or to show that there were laches. Hence a jury might be “bound," under such circumstances, to find for the plaintiff In the second case, the promise was held binding because actual knowledge was proved. Lord El. lenborough, as reported in 2 Camp. 332, allowed that ignorance “would do away the
pense with proof of presentment or notice, and will throw on the defendant the double burden of proving laches, and that he was ignorant of it.” This same principle seems to have been affirmed by some authorities.(k) But so far as presentment is concerned, this cannot be reconciled with either doctrine. Not with that of presumptive evidence; for as soon as the defendant has proved laches only, the plaintiff's case is gone, for there can be no presumption of due presentment when there is actual
effect of the acknowledgment and promise, but it appeared that the defendant was fully acquainted at the time ” with the circumstances.
(k) Loose v. Loose, 36 Penn State, 538, where Strong, J. said: “There was proof on the trial, that, some four or five weeks after the indorsement of the notes to the plain. tiff, they having been overdue when indorsed, the defendant stated that he was fast, acknowledged his liability, and promised to pay them. In reference to this proof, the court instructed the jury, in substance, that they might infer from it that the notes had been duly presented to the maker for payment, and that notice of his default had been given in time to the defendant, or that demand and notice had been waived by him. The jury were also instructed, that they might infer from the defendant's promise that he had full knowledge of the facts at the time he marle it; and that if his acknowl. edgment of liability and his promise to pay were made in mistake, the burden was upon him to prove it. This instruction is supposed to have been crroneous. The defendant contends, not that an acknowledgment of liability and a promise to pay, made by an indorser after default of payment by the maker, will not dispense with proof of demand and notice of non-payment, if maile with a full knowledye of the facts that there had been laches in the presentation and notice, but he insists that it is incumbent upon the holder to adduce evidence that the indorser had such knowledge, and that it cannot be inferred from his promise to pay. In other words, it is argued that the burden is upon the holder to show by distinct evidence that the promise was not made in mistake, or in ignorance of the existence of laches. This position cannot be maintained. What is the precise effect of a promise to pay, made by an indorser after a note or bill has fallen due and been dishonored, has been a subject much debated. Many of the cases bold that it amounts to an admission that a proper demand was made, and that due notice was given. If it be such an admission, it is not apparent how it can he necessary to prove, in addition to an indorser's promise, that he knew no sufficient demand had been made or notice given. Other cases, perhaps more numerous, hold that a promise to pay, or an acknowledgment of liability, is a waiver of due presentation and notice; and some cases treat it both as a waiver and an admission. Regarding it as a waiver, it of course must be essential that the party making it knew the laches which he is alleged to have excused, for waiver is not without intention. There is, however, very great harmony in the decisions in holding that a promise or acknowledgment itself raises a presumption that the drawer of the bill, or the indorser of the note, was acquainted with the laches of the holder, which his promise is alleged to have waived. I know of but one case in which the opposite doctrine has been distinctly asserted, and that is the case of Trimble o. Thorne, 16 Johns. 152, and it has often been spoken of with disapprobation by other courts.” So far as presentment is concerned, it would seem somewhat astonishing that the judge should say that there was "very great harmony" in the decisions that a promise to pay raises the presumption of knowledge of laches. According to the cases cited supra, p. 601, note r, over thirty in number, ihe “barmony” would appear to be
proof of laches. Nor can it be reconciled with the doctrine of waiver. For as soon as the defendant proves laches, the plain. tiff is bound to prove that the former had knowledge of the laches at the time of the promise. As to notice, the rule may be properly stated,(l) though it is not supported by all the authorities, (m) on the ground that a promise to pay, as regards notice alone, may be held to be prima facie binding, because the defendant may be presumed to know whether he received notice or not; and it is incumbent on him to remove this presumption
directly the other way; and the rule laid down in this case is not supported by more than two or three cases, and it is somewhat doubtful if it is by any. As to notice, we do not see how the cases can be reconciled. Supra, p. 603, note a, 604, note b. Collier, 0. J., in Kennon v. McRea, 7 Port Ala. 175, 184, cited the remark from Byles with approbation, and the cases cited by that author; and also Nash v. Harrington, 1 Aikens, 39, 2 id. 9. This last case is doubtful authority on the point for which it is cited. The noto was on demand, dated Jan. 30th. The demand was made Dec. 5th, and notice given Dec. 7th. The maker at the time of indorsement was notoriously insolvent, and contin. ued so till the trial. The first point which arose was, whether the demand was not too late, or whether due diligence had been used. The court, after stating that "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 negoțiated before they become payable," which is not law, said that they were not fully prepared to say whether this was or was not reasonable diligence.” They decided that the judge was wrong in refusing to admit evidence that the defendant acknowledged his liability, and promised to pay. They seem to have put their decision partly upon the ground that the evidence was admissible to show that due diligence in giving notice was used. With regard to knowledge, Hutchinson, J. said : “ This promise must be prima facie binding; but the 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.” This last clause would seem to show that, even as to knowledge, the court decided that a promise to pay raised that presumption with regard to notice, which was the point under consid. eration, on the ground that the indorser must have known whether he received it in due time.
(l) See Nash v. Harrington, 1 Aikens, 39, 2 id. 9, supra, note k.
(m) The facts in Loose v. Loose, 36 Penn. State, 538, were as follows. The notes were overdue at the time of indorsement. It does not seem to have been disputed but that the demand, which was made four days subsequent to indorsement, was within due time. The question was, whether the notice was regular, which was given fourteen days after the demand. There was evidence of a promise to pay, admission of liability, &c. The presiding judge seems to have instructed the jury, that, as to notice, the promise was either evidence that a prior notice had been given, or that it raised the presumption that the defendant knew that he had not received it at tho proper time. The decision is, that the charge was correct, but the language of Strong, J. is stronger than the facts would secm to warrant. VOL. 1.-2 P
by proof of ignorance of laches. It would be more accurate, according to the authorities, to state the rule as to presentment as follows: A promise to pay throws the burden on the defendant to prove laches, but the burden is again shifted to the plaintiff to prove knowledge, so soon as laches are shown. Another distinction between the two classes of cases is, that in those of waiver greater strictness is required as to the evidence of the promise than in those to the point of presumptive evidence. This distinction may be seen from the instances which we have already given. Another distinction is, that questions of waiver would seem to be more matter of law than those of presumptive evidence. All that is required in the former is, to prove the promise sufficiently clearly, and knowledge ; but in the latter, the indorser or drawer will be able to repel the presumption, either by showing actual laches,(n) or any other circumstance going to show neglect.(o) Thus even a written admission by the indorser that he had received due notice is only prima facie evidence, and may be rebutted.(p) The advantage of allowing an admission of an indorser or drawer to operate as an admission of due demand and notice, or presumptive evidence, may be seen in cases where the usual methods of proving them are unavailable; as, for instance, where the party who made the demand and gave the notice is dead, and where a notarial certificate or record is inadmissible evidence.(a) It would also
9 seem beneficial where the evidence is defective for some reason rather technical than just; as, for instance, in case where the
(n) Bruce o. Lytle, 13 Barb. 163.
(0) Lawrence o. Ralston, 3 Bibb, 102; Shurkey, C. J., Robbins v. Pinckard, 5 Smedes & M. 51, 73 ; Bibb v. Peyton, 11 id. 275. In Hyde o. Stone, 20 How 170, the insertion of the bill among the debts of the insolvent, upon his schedule, was held evidence of notice, the sufficiency of which is for the jury, and not subject to review in the Supreme Court of the United States. See Ricketts v. Toulmin, 7 Law J., K. B. 108 ; Jackson v. Collins, 17 Law J., N. S., Q. B. 142.
(p) Commercial Bank o. Clark, 28 Vt. 325. In Duvall v Farmers' Bank, 9 Gill & J. 31, the agreement relied on was written, but held subject to be rebutted by other proof.
(9) Sharkey, C. J., in Robbins o. Pinckard, 5 Smedes & M. 51, 72, said : “ The notary, it seems, died after suit brought, and before trial; and in such cases it is competent to resort to secondary evidence. This may account for the inability of the plaintiff to prove notice, and furnish a reason why no such proof was attempted. Under such circumstances, it is peculiarly proper to open the door for the admission of presumptive evidence, ard the promises of the defendant were sufficient to raise the strongest presumptions against him."
proof of notice is that it was deposited in the post-office of the town where the indorser lives. There is certainly in such cases, under the existing regulation of the mails, more probability that a notice so deposited will reach the party for whom it is intended than if it were mailed for a distant place. Because in the first instance there are only the chances of neglect in one post-office to be considered, while in the latter there are generally the chances of neglect in several offices, and the risk of negligence and loss incurred in the transportation of the mail from place to place to be taken into account.
GENERAL REMARKS ON THE SUBJECT OF EXCUSE FOR NON NOTICE.
It has already been stated, that a notice duly sent by a subsequent to a prior indorser enures to the benefit of the intermediate indorsers; (c) therefore an indorser who has been compelled to take up a note may show, by way of excuse for not giving notice himself to the indorser whom he wishes to hold, that one of the subsequent indorsers gave due notice to the defendant. In the cases which support this doctrine there appears to have been an actual reception of the notice, and it would seem to be still unsettled whether the rule applies to such cases only. Thus, as has already been said,(s) if the holder, after making the necessary inquiries, and using due exertions to find where an indorser lives, should send the notice to the wrong place, the indorser would be liable to him, although the notice was never received. The question might arise here, whether these facts, or this excuse, would so far enure to the benefit of an intermediate indorser who has been compelled to take up the bill, his liability being undoubted, that they would constitute a valid excuse, in his behalf, for not himself notifying the indorser. There would seem to be good reason for holding him liable, upon the ground that the intermediate indorser, upon payment of the bill, was subrogated to the rights, and stood in the place of the subsequent indorser. We are aware of only one case in which