as to part of the sum, the plaintiff can only avail himself of it as a waiver, pro tanto. A drawer of a bill for 2007., who had not received due notice of dishonour, said, "I do not mean to insist on want of notice, but I am only bound to pay you 701." Abbott, C. J.: "The defendant does not say that he will pay the bill, but that he is only bound to pay 701. I think the plaintiff must be satisfied with the 701." (a). The acknowledgment or promise may be made by the attorney for the defendant, or by his clerk, who has the management of the case (b). It need not be made to the plaintiff, but may be made to another party to the bill, or to a stranger (c). A promise to pay made by the drawer in expectation that a bill will be dishonoured, but before it is dishonoured, does not dispense with notice; for it is to be understood as a promise on condition that due notice is given (d). It seems, however, in some recent cases to have been considered, that a promise to pay is only evidence from which a jury may presume that a notice has been received (e). But that is not so. A promise to pay, if made before the time for giving notice has expired, is a dispensation; if made after that time it is a waiver, independently of any question of actual notice (ƒ). Though a party may waive the consequence of laches, in (b) Standage v. Creighton, 5 C. & P. 406. (c) Potter v. Rayworth, 13 East, 417; Gunson v. Metz, 1 B. & C. 193; 2 D. & Ry. 334, S. C.; Fletcher v. Froggatt, 2 C. & P. 569. In Rabey v. Gilbert it was held that suffering judgment by default in an action at the suit of a second indorsee was evidence of notice or of a waiver of notice in an action by the first indorsee, Rabey v. Gilbert, 30 L. J., Exch. 171; 6 H. & N. 536, S. C. (d) Pickin v. Graham, 1 C. & M. 725; 3 Tyr. 923, S. C.; and see Prideaux v. Collier, 2 Stark. (e) Hicks v. The Duke of Beau- (f) Cordery v. Colville, 32 L. J., C. P. 211; 14 C. B., N. S. 374, S. C.; Woods v. Dean, 32 CHAPTER XXII. 174.J., Q. B. 1; 8 Best &mith hun 101, S. C. Helbyv CHAPTER Laches not imputable to the Crown. Pleading where notice is excused or waived. Evidence of notice. respect of himself, he cannot do so in respect of antecedent parties (g). No laches can be imputed to the Crown, and, therefore, if a bill be seized under an extent before it is due, the neglect of the officer of the Crown to give notice of the dishonour will not discharge the drawer or indorser (h). A prior dispensation with notice, as absence of effects, must be specially alleged in the declaration (i). So must the impossibility of giving notice, or any other excuse for not giving it (k). And a subsequent promise, when used as a waiver of notice, must also be specially pleaded (1). But a subsequent promise to pay, when used as evidence of the fact of notice, need not (m). After the bill is due, a promise to pay, or a part payment (n), or the offer of it (o), or any admission of liability (p), whether before or after the period for giving notice has expired, is primâ facie evidence of notice; but though there be no evidence to repel the inference, the jury are not bound to draw it (g). A letter from the defendant, containing no promise of payment, but merely an ambiguous allusion to the bill being dishonoured, was held sufficient to warrant the jury in finding that the defendant had received due notice of dishonour (r). And the sending a person by the defendant, the drawer, to a remote indorsee two days after the bill had become due, to inform him that he, the drawer, had been defrauded of the bill, and that he should defend any action upon it, was left by Lord Tenterden to the jury as evidence to prove notice of dishonour (s). And on PLEADING. (n) Horford v. Wilson, 1 Taunt. 12. (p) Jackson v. Collins, 17 L. J., (q) Bell v. Frankis, 11 L. J., C. P. 300; 4 M. & G. 446, S. C. (r) Booth v. Jacobs, 3 Nev. & M. 351. (8) Wilkins v. Jadis, 1 Moo. & R. 41; and see Curlewis v. Corfield, 1 Q. B. 814. a statement by the defendant that he should pay the bill, and not avail himself of the informality of the notice, has been held to be evidence of due notice (t). And a conditional promise to pay, although the condition be not complied with, is still evidence (u). Notice to produce a notice of dishonour is not necessary (x). (t) Bronwell v. Bonney, 1 Q.B. 39. (u) Campbell v. Webster, 15 L. J., C. P. 4; 2 C. B. 258, S. C.; but see Pickin v. Graham, 1 C. & M. 725; 3 Tyr. 923, S. C. (a) Swain v. Lewis, 2 C., M. & R. 261. See Doe v. Somerton, 14 L. J., Q. B. 210. CHAPTER XXII. CHAPTER XXIII. Its nature. INTEREST, where not made payable on the face of the instrument (a), is in the nature of damages for the retention of the principal debt. The general rule of the common law is, that interest is (a) But if interest be payable by the terms of the instrument, it is recoverable, not as damages but as a debt. Watkins v. Morgan, 6 C. & P. 661; Hudson v. Fossett, 13 L. J., C. P. 141; 7 M. & G. 348, S. C. So if there be a col lateral agreement to pay a particular rate of interest, Florence v. Jennings, 26 L. J. 275; 1 C. B., N. S. 584, S. C. As to payment of principal, in full of both principal and interest, see ante, p. 227. not recoverable unless there were an express stipulation (b) that interest should be paid, or unless such be the usage of trade. Bills and notes, by the usage of trade, carry interest from the time of maturity; but a jury are not bound, unless they see fit, to give more than nominal interest, or, indeed, any interest at all (c). And now, by the recent statute for the amendment of the law (d), interest is recoverable on all debts payable by virtue of a written instrument, at a time certain, and on all other debts after a written demand, and notice that interest will be claimed from the date of the demand; but it is discretionary with the jury to give or withhold it. CHAPTER Interest is seldom expressly made payable on the face of From what time the instrument, but sometimes it is so. Where interest is expressly made payable on the face of the instrument, it carries interest from its date, and not merely from its maturity. For unless the words "bearing interest," or other words of similar import, are taken to mean that interest is payable from the date of the instrument, they would be idle, since without any such words the owner of the bill or note would be entitled to interest from its maturity. Thus it has been held, that on a bill drawn payable at a certain period after date bearing interest, the plaintiff is entitled to recover interest from the date of the bill (e). So where a note was made payable on demand with lawful interest, it was held to carry interest from the date (f). So a promissory note, whereby the maker promised to pay, one year after his death, 300l. with legal interest, bears interest from the date of the note (g). Where interest is not expressly made payable by the terms of the instrument, it runs from the maturity of the (b) If, at the time of a contract of sale, the vendee agrees to pay by bill or note, and neglects to do so, interest is recoverable as part of the price. Marshall v. Poole, 13 East, 98; Davis v. Smyth, 8 M. & W. 399. (c) Keene v. Keene, 27 L. J., C. P. 88; 3 C. B., N. S. 144, S. C. See Cameron v. Smith, 2 B. & A. 305; 5 Taunt. 626; In re Burgess, 2 Moore, 745; Ex parte Williams, 1 Rose, 399; Ex parte Cocks, ibid. 317; Lowndes v. Collins, 17 Vesey, 27; Lithgow v. Lyan, 1 Coop. C. C. 29. See (d) 3 & 4 Will. 4, c. 42, ss. 28, (e) Kennerly v. Nash, 1 Stark. 452; Doman v. Dibden, 1 R. & M. 381; Richards v. Richards, 2 B. & Ad. 447. (f) Weston V. Tomlinson, Chitty, 9th ed. 681; Hopper v. Richmond, 1 Stark. 507. (g) Roffey v. Greenwell, 10 Ad. & E. 222; 2 Per. & Dav. 365, S. C. it runs when payable by the terms of the instrument. |