To compel a plaintiff, however, to give such proof, it has been held necessary he should be apprized before the trial that such proof would be required from him. (17)

It is laid down in (18) some cases, that in an 'action against the endorser of a bill, the plaintiff must prove an application to the drawer for payment; but it (19) is now fully settled he need not.

And an offer, after the bill or note has become due, to give the holder another bill in lieu of it, is an (20) admission of the holder's title, so as to supersede the necessity of proving the endorsements or other special facts.

So (21) part payment of a bill or note after it has be

was stated by the plaintiff to have been taken by him in reduction of a balance due to him from his correspondents; but how this was did not appear. Bank notes of this value were not usually current at Middleburgh. Lord Kenyon said that as it did not appear that the plaintiff had given a valuable consideration for the note before notice, he should consider him as agent to his correspondents, and he thought that they had not satisfactorily accounted for their possession of the note. The plaintiff consented to a nonsuit; and on a rule nisi to set it aside and cause shown the court refused to interfere. See Lowndes v. Anderson, 13 East's Rep. 130.

(17) Paterson v. Hardacre, 4 Taunt. 114. In an action by endorsee against acceptor, the defence was, that an agent employed by defendant to get the bill discounted had appropriated it to his own use, and absconded: it was urged upon this that plaintiff was bound to prove how he got the bill, and what consideration he gave for it; he was not prcpared with such proof, and was allowed to take a verdict subject to the question, whether he was bound to give it? and on rule nisi for a nonsuit on this ground and time to consider, the court held that where such a defence was contemplated, it was incumbent on the defendant to give distinct notice to the plaintiff that such proof would be called for at the ́trial: and because no such notice had been given, the rule was discharged.

(18) Vide Burr. 671.

(19) This was decided after two arguments in the case of a foreign bill in Bromley v. Frazier, Str. 441; and in the case either of a foreign or inland bill, but which does not appear, in Lawrence v. Jacob, Str. 515; and in the case of an inland bill, Heylin v. Adamson, Burr. 669. (20) Bosanquet v. Anderson, 6 Esp. N. P. C. 43. Endorsee of a bill against the acceptor. The bill was drawn in favor of the drawer, who had endorsed it; and his endorsement and several others were stated in the declaration. The plaintiff proved the first endorsement, and that when the bill became due the defendant, being unable to take it up, came to the plaintiff and offered another in lieu of it. Lord Ellenborough held that this was an admission of the plaintiff's title, and dispensed with the proof of the several endorsements.

(21) Sidford v. Chambers, 1 Stark. 326. Plaintiffs sued as endorsees of Niblock and Co., who were endorsees of Sheckles, to whom defend

come due, without any objection being made for want of notice, or a (22) promise to pay, furnish grounds from which

ant had endorsed: they could not prove the endorsement of Sheckles, but they proved a letter from defendant to plaintiffs offering to substitute another bill, saying they had not money to take up the bill in question, and expressing a hope that it was not in the hands of Niblock and Co. Lord Ellenborough thought this evidence of the channel through which the bill had passed to plaintiffs, and made proof of the endorsement by Sheckles unnecessary; and plaintiffs had a verdict.

Horford v. Wilson, 1 Taunt. 12. In an action by the endorsee against the drawer of a bill, which had been dishonored by the acceptor, it appeared that the defendant had paid part of the money due upon the bill, without making any objection for want of notice of the dishonor; and the court held, upon a motion for a new trial, that from this the jury were warranted in presuming that due notice had been given.

(22) Lundie v. Robertson, 7 East's Rep. 231. Endorsee against an endorser of a bill. No evidence was given of presentment or notice; but it was proved that on being called upon by the plaintiff's clerk some months after the bill was due, the defendant said, "he had not the cash by him, but if the clerk would call in a day or two, and bring the account (meaning of the expenses) he would pay it;" the bill was shewn him at the time. On a second application, he offered a bill on London for the debt and expenses, which was refused: he then said that "he had not had regular notice, but as the debt was justly due, he would pay it." Chambre J. thought this sufficient; and verdict for the plaintiff. On a rule nisi for a new trial, and cause shewn, Lord Ellenborough said the case admits of no doubt: it was to be presumed primâ facie from the promise to pay that the bill had been presented in time, that due notice had been given, that no objection could be made to payment, and that every thing had been rightly done; this superseded the necessity of the ordinary proof: the other conversation does not vary the case; for though the defendant said he had not had notice, he waived that objection. Rule discharged.

See Gibbon v. Coggon, 2 Campb. N. P. C. 188., where, from the drawer's promising to pay a bill, Lord Ellenborough directed the jury to presume that it had been duly protested. See also Taylor v. Jones, 2 Campb. N. P. C. 105.

Greenway v. Hindley, 4 Campb. 52. In an action by the endorsees of a foreign bill against the drawer, it was proved that long after the bill became due defendant called on the holder, and said he came to arrange the payment; and on being shewn it, added, "it was regular, it was due from him and his partner, and that he was come to arrange for paying principal and interest." The declaration having alleged presentment and protest, it was urged that evidence ought to be given upon those points; but Lord Ellenborough said the defendant's acknowledgment was a sufficient foundation from which the jury might infer those facts; and verdict for plaintiffs.

Hodge v. Fillis, 3 Campb. 463. A bill was made payable in London, and accepted payable at Sir John Perring and Co.'s; and in an action against the acceptor, plaintiff had alleged presentment at Sir John Perring's, but could not prove it; Lord Ellenborough held the proof essential, unless there were something to dispense with it: plaintiff then proved that after the bill was due defendant promised payment, and Lord Ellenborough thought that made the other proof unnecessary; and verdict for plaintiff.

a jury may presume that it has been properly presented, that notice has been duly given, and that a protest (where necessary) has been made.

And such presumption may be made (23), though the promise were not made to the plaintiff or in his presence, but to a subsequent endorsee who then held the bill or note.

Though there has been no due presentation, yet if there has been a subsequent application from an endorser for indulgence, it is for the jury to consider whether at the time of the application the endorser knew there had not been a due presentation. (24)

A nonsuit, without leaving that point to the jury, is improper. (24)

If there have been laches in not giving notice, an endorser who may be prejudiced thereby in his remedies over against other endorsers, will not be precluded from insisting on such laches by having desired that the bill may be sent to him

Wood v. Brown, 1 Stark. 217. In an action against the drawer of a bill, plaintiff proved a letter from defendant after the bill was due, in which he said he was an accommodation drawer only, and that the bill would be paid before the following term; Lord Ellenborough held that this made proof of notice of the dishonor unnecessary, and the plaintiff had a verdict without such proof.

(23) Potter v. Rayworth, 13 East's Rep. 417. Endorsee of a note against the payee and endorser. It appeared that the note (which had been negotiated in the country) had been endorsed 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 become due, Kirton, who had taken it up, called on the defendant, who until then had received no notice of its dishonor: 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 (Grose and Le Blanc, Js. absent.) held that this promise was an acknowledgment by the defendant, either of notice, or that without notice he was the proper person to pay the note, and refused the rule.

(24) Hopley v. Dufresne, 15 East. 275. Endorsee against endorser; the bill was accepted payable at Hammersley's, and there was no presentment there proved till after the banking-hours; but after the declaration delivered, defendant had applied to plaintiff for further time to pay the bill: nonsuit, on the ground that no sufficient presentment was proved; but on rule nisi for new trial, and cause shewn, the court thought it should have been left to the jury to say, whether at the time of his promise defendant did not know there had been no due presentation; and on that account, rule absolute.

or some other person he names as soon as he receives notice, unless the bill when so sent is kept an improper time. (25)

[Where there is a subscribing witness to a note, in an action upon it, he ought to be produced at the trial to prove the signature of the party, or his absence accounted for. (a)

But it has been held that proof of the confession of the party signing the instrument, that he executed it, rendered it unnecessary in an action against him to produce the subscribing witness. (b)

And in a case where the subscribing witness was out of the government, it was held that other evidence might be produced of the signature of the maker of the note, without first proving the signature of the witness. (c)]

A confession of his signature is sufficient evidence (26)

(25) Borradaile v. Lowe, 4 Taunt. 93. Bill due 19th January; defendant was fifth endorser, Trevor and Co. the fourth; 25th January, letter to defendant that it was dishonored, with reasons assigned for not writing sooner; defendant wrote for answer, "I cannot think of remitting till I receive the draught, therefore if you think proper you may return it to Trevor and Co., if you think me unsafe." It was accordingly sent to Trevor and Co., but they returned it in a few days, saying, they had applied to the third endorser, and received it back from him as out of time; and as the delay was with plaintiff, they thought themselves and defendant discharged. Action inde: laches in plaintiff were admitted, but defendant's letter was relied upon as an answer; the distinction between the situation of an endorser, whose remedy over may be lost by the holder's laches, and of a drawer, was strongly relied on for defendant; and on rule nisi for nonsuit, and cause shewn, Mansfield C. J. said this letter contained no express promise to pay at all events, and he thought it would be too much to fix defendant here: in most cases where a defendant had been held liable there had been an express, promise to pay, or a promise under full knowledge of being discharged, or where there was a debt binding in conscience due from defendant. Rule absolute.

[(a) January v. Goodman, 1 Dall. 208.]

[(b) Hall v. Phelps, 2 Johns. R. 451.]

[(c) The subscribing witness to a note in suit being out of the Commonwealth in a neighboring State, other evidence was admitted of the signature of the maker, without proving the handwriting of the witness. Parker C. J. giving the opinion of the Court, said, "As the instrument in question is good without a subscribing witness, we do not think this strictness necessary; however it might be in relation to decds or instruments under seal, where something more is necessary to be proved than the signature of the party." Homer v. Wallis, 11 Mass. R. 309.]

(26) Cooper v. Le Blanc, Str. 1051. The plaintiff, on discounting a note, sent to the defendant to know whether an endorsement upon it was his, and the defendant said it was, and the note would be paid when due: he would notwithstanding have given evidence by similitude of

against the party making it, but (27) not against any other party; and it is (28) sufficient, though made pending a treaty for a compromise.

[But it has been held that the confession of his signature by a party to an instrument, was not conclusive evidence, even in an action against him. (a)

In an action against A. as maker of a note payable to B. or bearer, to which there is a subscribing witness, the admission of A. that he gave a note to B, and a promise to pay it, made without seeing the note in suit, or having its date or amount stated, are not sufficient evidence to dispense with the production of the subscribing witness.

hands that the endorsement was a forgery; but Lord Hardwicke would not allow it he seemed inclined, however, to admit proof of actual forgery; but the defendant could not adduce it, and the plaintiff had a verdict. See Wilkinson v. Lutwidge, ante, p. 113. 312.

Leach v. Buchanan, 4 Esp. N. P. C. 226. The plaintiff, before he took a bill, sent a person with it to the defendant to inquire whether the acceptance upon it were his handwriting; the defendant said that it was, and that it would be duly paid. He now offered evidence of the actual forgery of the acceptance; but Lord Ellenborough held that that proof would not discharge the defendant; that after having so accredited the bill and induced a person to take it, he was bound to pay it. Verdict for the plaintiff.

(27) Hemmings v. Robinson, Barnes, 3d ed. 436. In an action by the endorsee of a note against the maker, it was reserved as a point whether the acknowledgment of an endorser was sufficient evidence to prove his endorsement; and the court held not. See Gray v. Palmer, p. 325. n. (33).

(28) Waldridge v. Kennison, Espinasse, 143. In an action against two as acceptors of a bill, the only evidence of the signature by one was an admission he made pending a treaty for settling the cause: it was objected that this admission ought not to be received in evidence, because it was made under the faith of a compromise; but Lord Kenyon held that the admission of a handwriting might be received in evidence, though it was made under faith of a compromise; and he admitted it accordingly.

[(a) In an action against Huse as the maker of a note, an acknowledgment by him of the signature was proved at the trial. The defendant was allowed to produce witnesses acquainted with his writing to prove that in their opinion the signature was not genuine; and also to prove the same by a signature known to be his. After a verdict for the defendant, the Court refused a new trial, saying that "it was merely a question of evidence, of which the jury were the judges." Hall v. Huse, 10 Mass. R. 39. The defendant in this case was 70 years old, and the evidence did not show that he had any reason to suspect, or did in fact suspect the signature, when he said it was his. "The identity

[(b) Shaver v. Ehle, 16 Johns. R. 201. Per Curiam. of the note to which the defendant's confession related is not proved