7thly. How the if the promise be made to any party to the bill, another person who has afterwards taken it consequences of a neglect to give notice may be up may avail waived, or other himself of such promise and sue the party making If, however, a promise to pay be made without a knowledge of the fact of non-acceptance, or of the during banking hours. The declaration alleged a due presentment for payment, and after such declaration filed, the defendant applied to the plaintiff for the indulgence of a further extension of time to pay the bill, which was insisted upon as a waiver of the defective presentation. For defendant it was contended that there could be no waiver of the defective presentation, without shewing that the defendant knew in fact of the defect at the time, which though attempted to be, was not shewn in this case. For this was cited Blessard v. Hirst, (post, 307) where a subsequent promise by an indorser to pay the bill having been made under the ignorance of the prior laches of the holder by which he was discharged, was held to be no waiver of the objection. For the plaintiff the counsel relied principally on the waiver which took place, after declaration, containing the allegation that the bill was duly presented for payment, was filed; and therefore after the defendant's attention was called to the fact, and he referred to Lundie v. Robertson, (ante, 302) where a promise by an indorser to pay the bill three months after it became due, was held to be primâ facie evidence of his admission that the bill had been presented to the acceptor for payment in due time, and dishonoured, and due notice of it given to him. Lord Ellenborough, C. J. stopping the argument, said, that the court thought that it should have been left to the jury to say whether under the circumstances of the case, the defendant had notice at the time of his application for indulgence, that there had been no due presentation, and therefore made the rule absolute. 1 Bayl. 221, 2.-Potter v. Rayworth, 13 East. 417. Indorsee of & note against the payee and indorser. It appeared that the note which had been negotiated in the country, had been indorsed 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 dishonour, 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 plaintif could avail himself of this promise so made to Kirton. Graham, B. directed a verdict for the plaintiff, and on motion to set aside, the court held, that this promise was an acknowledgement by the defendant either with notice or that without notice, he was the proper person to pay the note, and refused a rule. Lord Ellenborough, C.J. said, that whether the promise to pay were made to the plaintiff or 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 had due notice of the dishonour. Bayley, J. considered the promise by the defendant either as an acknowledgment that he had had due notice of the dishonour, or that without such notice he was the proper person to pay the note as for the party whose use it was drawn. Rule absolute. consequences of a notice may be wise done away. laches of the holder, it will not be binding'; and even 7thly. How the a payment under such circumstances might, if the neglect to give party making it were prejudiced by the conduct of the waived, or otherholder, and there were any wilful concealment on his part, be recovered back. The promise also should amount to an admission of the holder's right to receive payment, and therefore where a foreigner said, "I am not acquainted with your laws, if I am bound to pay it I will," such promise was not considered as a waiver of the objection of want of notice3; and it Blessard v. Hirst, 5 Burr. 2672.-Goodall v. Dolley, 1 T. R. 712.. Williams. Bartholomew, 1 Bos. & Pul. 326.-Bayl. 79.-Stevens v. Lynch, 2 Campb. 333. admitted in 12 East. 39. S. C.-Hopley v. Dufresne, 15 East. 276, 7, ante, 305, note 5. Blessard v. Hirst and another, Burr. 2670. The defendant indorsed a bill to the plaintiff, and he indorsed it over; his indorsee presented it for acceptance a month before it became 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 became 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 he 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 so doing, he had taken the risk upon himself, and notwithstanding the promise of one of them, the defendants had judgment. Goodall v. Dolly, 1T. R. 712. A bill drawn in favour of the defendant, payable the 11th January, 1787, was presented for acceptance by the plaintiffs, the 8th November, 1786, when acceptance was refused; they gave no notice to the defendant till the 6th January, and then did not say when the bill was presented, upon which the defendant proposed paying it by instalments, but the plaintiff rejected that offer and brought his action. Heath, J. thought the defendant discharged for want of notice, and that his offer to pay being made under ignorance of the circumstances, was not binding, and the jury under his direction, found a verdict for the defendant. Upon cause shewn against the rule for a new trial, the court thought the verdict and direction right, and discharged the rule. Chatfield v. Paxton, ante, 304, n. 3.-Williams v. Bartholomew, 1 Bos. & Pul. 326.-Bilbie v. Lumley, 2 East. 469.-Malcolm v. Fullarton, 2 T. R. 645. Quare if not prejudiced could he sustain such action? Farmer v. Arundel, 2 Bla. Rep. 824.-Price v. Neal, 1 Bla. Rep. 390. 3 Burr. 1355. S. C.-Ancher v. Bank of England, Doug. 637.-Bize v. Dickason, 1 T. R. 285. Dennis v. Morris, 3 Esp. Rep. 158. 7thly. How the consequences of a neglect to give notice may be waived, or other wise done away. has been considered, that if the promise were made on the arrest, it shall not prejudice; but this doctrine seems questionable'. If an indorser propose to the holder to pay the bill by instalments, and such offer be rejected, he is at liberty afterwards to avail himself of the want of notice. So it was decided in a late case, that if the drawer or indorser after being arrested, without acknowledging his liability, merely offers to give a bill, by way of compromise, for the sum demanded, this does not obviate the necessity of proving notice; and Lord Ellenborough in that case observed, "This offer is neither an acknowledgement nor a waiver to obviate the necessity of expressly proving notice of the dishonour of the bill. He might have offered to give his acceptance at one or two months, although being entitled to notice of the dishonour of the former bill, he had received none, and although upon this compromise being refused he meant to rely upon this 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 3;" and it has recently been considered, that admitting that a drawer of a bill may by circumstances impliedly waive his right of defence founded on the laches of the holder; yet an indorser can only do so by an express waiver, there being a material distinction in this respect between the situation of a drawer and an indorser*. 3 1 2 Rouse v. Redwood, 1 Esp. Rep. 155. Goodall v. Dolley, 1 T. R. 714, ante, 307. 3 Cuming v. French, 2 Campb. 106. Borradaile v. Lowe, 4 Taunt. 93. and see Shepherd, Serjeant's, argument, id. 96, 7. The defendant who was an indorser, wrote the following letter, in answer to one from the then holder : "Sir, : "I cannot think of remitting until I receive the draft, therefore if you think proper, you may return it to Trevor and Co. Whitchurch Old Bank, if you consider me unsafe. 28th January, 1811. "To Mr. John Wilkins. Signed J. LOWE, Whitchurch." This letter was held not to amount to a waiver of the laches in not giving due notice of non-payment. Where the plaintiff relies on a statement by the 7thly. How the consequences of a indorser after the bill was due that he knew he was neglect to give notice may be discharged, but that the plaintiff had behaved so well waived, or otherto him in money matters, that he should take no advantage of it, but would pay the money; he must, it is said, also prove a demand on the acceptor'. A person who has been once discharged by laches from his liability, is always discharged; and therefore where two or more parties to a bill have been so discharged, but one of them not knowing of the laches pays it, such payment is in his own wrong, and he cannot recover the money from another of such parties2. wise done away. THE custom of merchants is stated to be, that if the drawee of a bill of exchange abscond before the day when the bill is due, the holder may protest it, in order to have better security for the payment, and should give notice to the drawer and indorsers of the absconding of the drawee; and if the acceptor of a foreign bill become bankrupt before it is due, it seems that the holder may also in such case protest for better security; but the acceptor is not on account of the bankruptcy of the drawer, compellable to give this security. The neglect to make this protest will not affect the holder's remedy against the drawer and indorsers, and its principal use appears to be, that 1 3 Brown v. M'Dermot, 5 Esp. Rep. 265. Bayl. 142.-Roscoe v. Hardy, 12 East. 434. Anonymous, Ld. Raym. 743.-Mar. 27, 111, 2.-Beawes, pl. 22. 24. 26. 27. 29.-Kyd. 139. See Bayl. 69. note c. 72, 3, 75. The following is an extract from the code of laws at Antwerp, relating to bills of exchange :-" In the case of failure (de faillité) of the acceptor before the usage (l'échéance) the holder may cause it to be protested and put in force his recourse (exercer son récours.)" Id. ibid. Ex parte Wackerbarth, 5 Ves. jun. 574.-Kyd, 139. 'Beawes, pl. 22. Beawes, pl. 23. Sect. 4. Of protest for better security. for better security. Sect. 4. Of protest by giving notice to the drawer and indorsers of the situation of the acceptor, by which it is become im probable that payment will be made, they are enabled by other means to provide for the payment of the bill when due, and thereby prevent the loss of reexchange, &c. occasioned by the return of the bill'. It may be collected, that though the drawer or indorsers refuse to give better security, the holder must nevertheless wait till the bill be due, before he can sue either of those parties. Sect. 5. Of acceptance supra protest. ANY person may, without the consent of the drawer or indorsers, accept the bill, supra protest, for better security. This security, it is said, is usually given by making another subscription under the protest, that the person who becomes new security, will be bound as principal for the payment of the sum mentioned in the bill, upon which the protest is made +. When a foreign bill is protested for non-acceptance, or for better security, the drawee or any other person may accept it supra protest, which acceptance is so called from the manner in which it is made. This description of acceptance is frequently made upon a foreign bill, for the purpose either of promoting the negotiation of the bill when the drawee's credit is suspected, or to save the reputation, and prevent the prosecution, of some of the parties, where the drawee either cannot be found, is not capable of making a contract, or refuses to accept; and such acceptance is called an acceptance for the honour of the person on whose behalf it is made, and it enures to the benefit 1 Beawes, pl. 24. 2 Beawes, pl. 26. 3 Ex parte Wackerbarth, 5 Ves. jun. 574. et infra. See the ob servations on acceptances supra protest in Hoare v. Cazenove, 16 East. 391. * Com. Dig. Merchant, F. 8. cites Mar. 28. 5 Ex parte Wackerbarth, 5 Ves. jun. 574.-Bayl. 74. |