neglect to present; a payment or promise without notice of the default does (118) not.

[Where an endorser of a note, who was discharged by the laches of the holder, afterwards paid him the money, under an ignorance of the facts which discharged him, it was held that he might recover the money back. (a)

5 Johns. R. 248; Donaldson v. Means, 4 Dall. 109; Ladd v. Kenney, 2 N. Hamp. R. 340.]

(118) Blesard v. Hirst and another, Burr. 2670. The defendants endorsed a bill to the plaintiff, and he endorsed it over; his endorsee presented it for acceptance a month before it was 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 no notice of the refusal to accept. The drawer was a bankrupt before the bill was 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 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 doing so he had taken the risk upon himself, and notwithstanding the promise of one of them the defendants had judgment.

Goodall v. Dolley, 1 Term. Rep. 712. A bill drawn in favor of the defendant, payable the 11th of January, 1787, was presented for acceptance by the plaintiffs the 8th of November, 1786, when acceptance was refused they gave no notice to the defendant till the 6th of January, and then did not say when the bill was presented; upon which the defendant proposed paying by instalments, but the plaintiffs 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 an ignorance of the circumstances was not binding, and the jury, under his direction, found a verdict for the defendant. Upon cause shewn against a rule for a new trial, the court thought the direction and verdict right, and discharged the rule.

See Lundie v. Robertson, Horford v. Wilson, Gibbon v. Coggon, and Potter v. Rayworth, post.

[See also Crain v. Colwell, 8 Johns. R. 299; Martin v. Winslow, ante; Hussey v. Freeman, 10 Mass. R. 84; Fotheringham v. Price, 1 Bay, 291.

But in Walker v. Laverty, 6 Munf. 487, it appears to be held that the promise of the drawer of a bill not duly notified, to pay it, was binding on him, whether he knew the facts as to the laches of the holder, or not.]

[(a) Cross left a note in the Salem Bank for collection, on which Garland was endorser. The note fell due while Garland was absent from Salem, his place of residence; but there was no sufficient demand or notice. On his return to Salem he paid the money, which the bank passed to the credit of Cross. Three days afterwards Garland having ascertained the facts, reclaimed the money of the bank, it still remaining there, not paid over to Cross, forbade their paying it over to any person,

A promise to pay by a party to a bill or note, who is discharged by the laches of the holder, must be explicit and deliberately made in order to be binding. (a)

Even a confession of judgment is not conclusive evidence of the waiver of the right to presentment and notice (b); nor is taking security (b) (c); nor using exertions to obtain payment from a prior party. (d)

gave notice that he had paid it by mistake, and tendered the note to the cashier and officers of the bank. The bank afterwards paid over the money to Cross. And Garland brought a suit against the bank to recover back the money paid. Sewall J. charged the jury "that the defendants were not entitled to retain the money paid, unless the payment had been made by the plaintiff voluntarily, and with a knowledge of all the circumstances, and an intended waiver of his legal advantage and discharge." Verdict for the plaintiff; and on motion for a new trial judgment on the verdict. Garland v. Salem Bank, 7 Mass. R. 408.

In Glen on Bills, 187, is a similar case, where a party to a bill discharged by the laches of the holder, recovered back the amount paid by him.]

[(a) Coffin, the endorser of a bill, had not been notified of its nonacceptance. When called on for payment by the agent of the holder, who had the protest for non payment with him, Coffin said that this was the first notice he had of the bill's being protested for non-acceptance; that he was not prepared to meet the payment; but that in a few days he would look round, and make preparations for the settlement of it; and other expressions to the same effect. It was held that Coffin "What was not liable. Sedgwick J. delivered the opinion of the Court. a mau says under the surprise of a sudden and unexpected demand for We are money, ought to be construed with a good deal of strictness. all satisfied that what the defendant said of paying money, from the payment of which he was discharged by law, ought not to bind him.” May v. Coffin, 4 Mass. R. 341.

An endorser of several bills, on one of which he was chargeable, speaking generally of them, to a person not a party, said, "that he would take care of the bills, or see them paid." It was held, whichever of the expressions he used, that he did not make himself liable on the other bills, of whose dishonor he had not been duly notified. Van "A subsequent promise to Ness J. delivered the opinion of the Court. pay under a knowledge of the fact of want of notice, ought to be made out clearly and unequivocally. It would be dangerous to fix an endorser without notice, and perhaps withont knowledge of the laches of the holder, upon such loose conversation with a third person." Miller v. Hackley, 5 Johns. R. 375.

The endorser of a note, on the maker of which there had been no regular demand, being sued, a short time before the trial said that "he knew of no defence." Spencer J. delivered the opinion of the Court. "Here there is no promise. The defendant knew of no defence. This is extremely slight; and by no means waives any objection which the law puts into his hands." Griffin v. Goff, 12 Johns. R. 423.]

[(6) The endorser of a note, where there had been no demand on the maker, being med, at first confessed judgment, the makers of the note

Prawer

A conditional promise to pay, or an offer to pay in a certain manner, is not binding as a waiver of the rights acquired by the neglect of the holder, if the terms be not accepted. (a)

It has been held in some cases that a promise to pay made by a party knowing the facts which discharge his liability, but ignorant of the law, would not render him liable. (b)

after the action brought having given him security, which however turned out to be worthless; but the judgment was afterwards opened, and he let into a defence. It was held that the confession of judgment, though evidence, was not conclusive evidence, of an acknowledgment of liability; and that if the defendant made it being unacquainted with his rights, or through imposition, it did not render him liable; and "that taking the indemnity, being after action brought, if taken under the impression of a regular demand and notice, and the endorser believing himself to be liable, was no waiver" of his rights. Richter v. Selin, 8 Serg. & Raw. 425.

See also Warder v. Tucker, 7 Mass. R. 449.]

[(c) The endorser of a note, after it fell due believing himself liable upon it, took an assignment of a chose in action from the maker, and also received some money, to indemnify him from his endorsement. It was held in an action against the endorser, that the plaintiff was not excused from proving a demand and notice. Tower v. Durell, 9 Mass. R. 332.]**

[(d) Hussey v. Freeman, 10 Mass. R. 84.]

[(a) The endorser of a note who had not been duly notified, offered the holder to take up the note, and give his own note payable in a year; but the holder requiring an endorser on the new note, nothing was done. In a suit by the holder against the endorser, it was held that the endorser was not liable. Thompson C. J., giving the opinion of the Court, said, "The promise or offer of the defendant was qualified or conditional, and having been rejected by the plaintiff, was not binding on the defendant." Agan v. M'Manus, 11 Johns. R. 180.

See also Sice v. Cunningham, 1 Cowen, 397; and Crain v. Colwell, 8 Johns. R. 299.]

an action against the endorser of a bill, it appeared that the been duly notified of its non-acceptance. After receiving notice of the bill's being protested for non-acceptance and non-payment, he wrote a reply to the holders in which he expressed hopes of recovering property of the drawers sufficient to indemnify the holders, acknowledged his accountability to them, and engaged to do ali that was in his power to make payment. Curia. " Although the defend. ant, when he first received notice from the plaintiffs of the protest of the bill, considered himself as liable by law to pay the plaintiffs the amount of it, yet his ignorance of the law shall not bind him to fulfil an engagement made through mistake of the law." Nonsuit. Warder v. Tucker, 7 Mass. R. 449.

See also May v. Coffin, supra.

In a case of the same kind Parker J. in delivering the opinion of the court, said. "The facts reported do not show any direct promise to pay; and even if they did, it is well settled that a promise under such circumstances as show an ignorance that the party was legally dis

If before a note falls due, the endorser agrees to pay it, in consideration of time to be given him, this promise renders a demand and notice unnecessary. (a)]

Proof that the drawer had no effects nor any ground to expect any in the hands of the drawee from the time the bill was drawn until it became payable, and that he had no other valid foundation to expect payment by the drawee is (119)

charged, is without consideration and void." Freeman v. Boynton, 7 Mass. R. 483.

In Ladd v. Kenny, 2 N. Hamp. R. 340, the court seem to think that a promise to pay by an endorser, who is discharged by the laches of the holder, made with a knowledge of all the facts, but under a mistake of the law, would render him liable.]

[(a) On the day before a note became due, a demand was made on the maker, and notice given to the endorser, and the latter then agreed with the holder to pay the note in considerations of time being given him. It was held that this promise was " a waiver of strict demand and notice." Norton v. Lewis, 2 Conn. R. 478.)

(119) Rogers v. Stephens, ante, p. 187. note (117).

Bickerdike and another, assignees of Reichard, v. Bollman, 1 Term Rep. 405. The only question upon a case reserved was, whether a bill the bankrupt had drawn in favor of the petitioning creditor, upon a man who then, and from that time till the bill became due, was one of the bankrupt's creditors, had discharged so much of the petitioning ereditor's debt, no notice having been given of its dishonor to the bankrupt; and the court, after argument, were of opinion it had not, because the reason why notice is in general necessary, is, that the drawer may without delay withdraw his effects from the drawee, and that no injury may happen to him from the want of notice; but where the drawer has no effects in the hands of the drawee, he cannot be injured, and is not entitled to any notice.

Goodall v. Dolley, ante, p. 189. note (118). In this case upon the application for a new trial, the plaintiff's counsel offered an affidavit that the drawer had no effects in the hands of the drawee, but the court thought that made no difference, the action being brought against the payee, but by Buller J. "Had the action been against the drawer, I should have been willing to let in the affidavit; that would be like the case of Bickerdike v. Bollman: if the drawer has no effects in the hands of the drawee he cannot be injured by want of notice."

Legge v. Thorpe, 12 East's Rep. 171. This was an action by an endorsee against the drawer of a foreign bill drawn upon C. B. Wyatt, payable one month after sight, of which acceptance had been refused. The declaration negatived effects in the hands of the drawee, or any consideration for the bill. It appeared at the trial that the defendant had no effects in Wyatt's hands, and that the latter had therefore refused acceptance; but that Wyatt was one of the executors of Weeks, and that Weeks's executors had desired the defendant to employ the payee of this bill to do some carpenter's work on Weeks's property, and the defendant therefore drew this bill on Wyatt to settle with the payee. Wyatt denied that he had assets to pay the bill. The only question was, whether a protest for non-acceptance were necessary. Lord Ellenborough thought not, and a verdict was given for the plaintiff, but the

sufficient, at least primâ facie, to shew, that the drawer would be entitled to bring no action on paying the bill and has therefore no right to insist on the want of notice, &c. and it (120) has been doubted whether the drawer would be at liberty to shew the contrary.

It is no excuse for not giving notice to the drawer that he had no effects in the drawee's hands when the bill was drawn or became due, if he had effects on their way to the drawee. (121)

Unless the drawer gets back those effects, and would stand indebted in the amount to the drawee, if the drawee paid the bill. (121)

It is no excuse for not giving notice to the drawer that he had no offects in the drawee's hands, if the drawer would be entitled on taking up the bill to sue either the acceptor; (122)

Or any other party; (122)

As if he and the acceptor lent their names to the payee or a subsequent endorsee. (122)

point was reserved; and on a rule nisi for a nonsuit, and cause shewn the whole court held that this case was governed by those of Bickerdike v. Bollman, and Rogers v. Stephens, and discharged the rule.

[Where the drawer had no funds in the hands of the drawee, it was: held that notice to the drawer of non-payment was not necessary, in order to charge him, even though the bill had been accepted by the drawee. Hoffman v. Smith, 1 Cain. R. 157.]

(120) In Rogers v. Stephens, ante, p. 187. note (117), Mr. J. Ashhurst said, "Admitting the proof offered had been given, I do not think it clear it would take the case out of the common rule; for the law being now established, that notice to the drawer of a non-acceptance is not necessary where he has no effects in the hands of the drawee; when the plaintiff found the drawees of this bill had none of the defeudant's effects in their hands, he knew he was not bound by law to give the defendant notice; he was not bound to take cognizance of any private transaction between the drawer and a third person not appearing on the face of the bill."

(121) Rucker v. Hiller, 3 Campb. 217. 16 East, 43. In an action by the endorsee of a bill against the drawer, it appeared that the drawer had no effects in the drawee's hands, but that he had shipped goods which were on their way to the drawee: the drawee refused to accept, but no notice thereof was given to the drawer; and it was insisted, that as the drawee had not received effects, defendant was not entitled to notice: Lord Ellenborough thought otherwise, as the drawer was in expectation that the goods he had shipped would reach the drawee; and nonsuit: on motion to set aside the nonsuit, it did not appear but that