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as voidable by nonfulfilment of these conditions than as actually avoided. If he chooses to affirm rather than disaffirm his liability, it can injure no one to leave him to the exercise of his discretion.5

§ 1148. It makes no difference, when the promise to pay is made with knowledge of laches, that the party making it did not know its legal effect as a waiver, or that he had a legal defense to the bill or note, for it is a maxim that ignorance of the law excuses no one. The contrary notion has been long since exploded, though at one time it found favor.9

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And it makes no difference at what particular time the promise is made. It may be after suit brought,10 and even while a motion for a new trial is pending.1

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§ 1149. Proof of knowledge-how far essential to proof of waiver. Knowledge on the part of the drawer or indorser that the holder has been in default, in not making due presentment and giving notice, is an element of the waiver as indispensable

5. In Ross v. Hurd, 71 N. Y. 14, the holder and maker of a note went to the indorser who had been discharged by want of demand and notice, and on the holder agreeing to an extension, the indorser said, "Then I will waive protest." Held, that this authorized recovery against the indorser. Sebree Deposit Bank v. Moreland, 96 Ky. 150, 28 S. W. 153, quoting with approval the text; Alabama Nat. Bank v. Rivers, 116 Ala. 1, 22 So. 580, 67 Am. St. Rep. 95; Workingmen's Banking Co. v. Blell, 57 Mo. App. 410.

6. Third Nat. Bank v. Ashworth, 105 Mass. 503; Mathews v. Allen, 16 Gray, 594; Hughes v. Bowen, 15 Iowa, 446; Cheshire v. Taylor, 29 Iowa, 492; Davis v. Gowen, 17 Me. 387; Beck v. Thompson, 5 Harr. & J. 537; Pate v. McClure, 4 Rand. 164; Richter v. Selin, 8 Serg. & R. 425; Kennon v. McRea, 7 Port. 175; Bilbie v. Lumley, 2 East, 469; Stevens v. Lynch, 12 East, 38; Chitty on Bills (13th Am. ed.) [*503], 447; Story on Bills, § 320; 2 Ames on Bills and Notes, 505; Glidden v. Chamberline, 167 Mass. 486, 46 N. E. 103, 57 Am. St. Rep. 479, citing and approving text.

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7. Givens v. Merchants' Nat. Bank, 85 Ill. 444, Scholfield, C. J.: plaintiff in error says he was not aware at the time he made these promises that he had any legal defense to the note. If it was because of his ignorance of the law, it cannot avail him, and he must be charged with full knowledge." Sebree Deposit Bank v. Moreland, 96 Ky. 150, 28 S. W. 153, quoting with approval the text.

8. Tebbets v. Dowd, 23 Wend. 379.

9. Chatfield v. Paxton, N. P., quoted in Bilbie v. Lumley, 2 East, 469; Freeman v. Boynton, 7 Mass. 483; Warder v. Tucker, 7 Mass. 449.

10. Oglesby v. Steamboat Co., 10 La. Ann. 117; Hart v. Long, 1 Rob. (La.) 83.

11. Hart v. Long, 1 Rob. (La.) 83.

as the promise itself, according to the American text-writers on the subject, and the great body of the adjudicated cases.12 12 Thus, it has been decided by the United States Supreme Court that where an indorser of a note, on being informed that the maker had not paid it, observed that "he knew he had not to pay it; that it was the concern of himself (the indorser) alone; and that the maker had nothing to do with it," was an admission of liability, but that the plaintiff could not recover against him without proving that he was apprised of his laches in not making a regular demand of payment.13

12. Thornton v. Wynn, 12 Wheat. 183. And to same effect, holding that it must be proved in addition to the promise itself, see Spurlock v. Union Bank, 4 Humphr. 336; Ford v. Dallan, 3 Coldw. 67; Ticknor v. Roberts, 11 La. 14; Blum v. Bidwell, 20 La. Ann. 43; Walker v. Rogers, 40 Ill. 278; Van Wickle v. Downing, 19 La. Ann. 83; Baskerville v. Harris, 41 Miss. 535; Harvey v. Troupe, 23 Miss. 538; Farrington v. Brown, 7 N. H. 271; Hunter v. Hook, 64 Barb. 469; Jones v. Savage, 6 Wend. 658; Gawtry v. Doane, 48 Barb. 148; United States Bank v. Southard, 2 Harr. 473; Barkalow v. Johnson, 1 Harr. 397; Bank of the United States v. Leathers, 10 B. Mon. 64; Walker v. Rogers, 39 Ill. 279; Cheshire v. Taylor, 29 Iowa, 492; Sigerson v. Mathews, 20 How. 464; Salisbury v. Renick, 44 Mo. 454; Otis v. Hussey, 3 N. H. 346; Newberry v. Trowbridge, 13 Mich. 264; Schierl v. Baumel, 75 Wis. 75, citing text; Glaser v. Rounds, 16 R. I. 237, 14 Atl. 863, citing text; Norris v. Ward, 59 N. H. 487; Freeman v. O'Brien, 38 Iowa, 406; Kelley v. Brown, 5 Gray, 108; Baer v. Leppert, 5 Hun, 453; 1 Parsons on Notes and Bills, 601; Story on Bills, § 320; Lilly v. Petteway, 73 N. C. 358; Williams v. Union Bank, 9 Heisk. 441 (1872), in which case it was held that it must appear that the party promising was under no misapprehension as to the law or the facts. In Arnold v. Dresser, 8 Allen, 435, Bigelow, C. J., saying: "No such waiver is made where an indorser promises to pay the note in ignorance of the fact that he has been discharged by the laches of the holder in not making due demand of the promisor, or where such promise is made under a misapprehension or mistake of facts concerning the due presentment and demand of the note." See post, § 1161; Porter v. Thom, 30 App. Div. 363, 51 N. Y. Supp. 974, citing text; Linthicum v. Caswell, 19 App. Div. 541, 46 N. Y. Supp. 610, citing text; Closz & Mickelson v. Miracle, 103 Iowa, 198, 72 N. W. 502.

13. Thornton v. Wynn, 12 Wheat. 183. "These declarations," said the Supreme Court, “amounted to an unequivocal admission of the original liability of the defendant to pay the note, and nothing more. It does not necessarily admit the right of the holder to resort to him on the note, and that he had received no damage from the want of notice, unless the jury to whom the conclusion of the fact from the evidence ought to have been submitted, were satisfied that the defendant was also apprised of the laches of the holder in not making a regular demand of payment of the note, by which he was discharged of responsibility to pay it. The knowledge of this fact formed an in

Even where the party wrote a written acknowledgment, addressed to the plaintiff's counsel, stating, "I hereby hold myself accountable for the payment of a note signed by J. Brown, payable to me, and indorsed by me," etc., it was held insufficient, no proof of knowledge of laches appearing.1 And it is said and held that even if the drawer or indorser pays the amount of the bill or note, in ignorance that he has been discharged by laches, he may recover it back.15

§ 1150. There is certainly strong ground for contending that upon principles of estoppel, proof of a distinct promise to pay after maturity (no question of fraud or deceit arising) should in itself close all controversy as to demand, protest, and notice. The drawer or indorser may not only waive the fact that demand, protest, and notice were not duly made or given, they may also waive proof that they were made or given. And when he promises to pay the bill or note, such promise imports an unconditional assumption of it; and a dispensation with whatever preliminary evidences might be necessary to charge him with its payment. The holder is thereby advised that the party raises no question as to his liability, and to permit him when sued to require other proofs of what he has recognized, might enable him to practice a fraud by lulling the holder to quiet reliance on his promise, and then springing the defense upon him unawares. If there were a failure as to demand and notice, there might be excuses which the holder would come prepared to prove if the promise had not intimated that it was unnecessary. Or there might be witnesses whom he would have summoned, or testimony which he would have preserved, if not thus warned that the indorser acknowledged his liability. And good faith would seem to suggest that if the party deliberately promises to pay, he shall not afterward go behind that promise and deny facts which it presupposes, and is impliedly based upon. Nev

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dispensable part of the plaintiff's case, since without it, it cannot be inferred that the defendant intended to admit the right of the plaintiff to resort to him, if, in point of fact, he had been guilty of such laches as would discharge him in point of law." Workingmen's Banking Co. v. Beell, 57 Mo. App. 410. 14. Farrington v. Brown, 7 N. H. 271.

15. Story on Promissory Notes, § 361; Crutchers v. Wolf, 2 Mon. 88. 16. In Debuys v. Mollere, 15 Mart. 318, Mathews, J., said: "The indorser must have known whether he was duly notified of the protest. If he were not, by promising to pay he waived the advantage which such negligence

ertheless, it may be said per contra, that to consider the promise to pay as evidence prima facie of due demand and notice, or of knowledge of the want of the one or the other, and to throw the burden of proving want of diligence and ignorance thereof, with due circumspection taken to prevent surprise to the plaintiff, are all that is essential to protect him; and the authorities which adopt this equitable intermediate view are perhaps upon the whole best calculated to effectuate justice.'

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§ 1151. In Virginia it was held, that where the drawer of a protested bill who was sued, called for proof of notice, and it was proved that when he was applied to for payment he acknowledged that the debt was a just one, and said he would pay it, it was a waiver of all notice, though nothing was said about notice in the acknowledgment; and that instructions that, "unless the said acknowledgment was made with a knowledge of all the facts of the case as to the laches of the holders of the said bill, the said evidence was not to be received," were properly refused by the court below.18 And in a subsequent case the doctrine was reiterated.19 It will be observed, that in neither of these cases was there any proof of any laches; but the doctrine which they recognize is, that such proof is absolutely precluded by the waiver.

would otherwise have given; if he did not receive regular notice he is liable under his subsequent promise." See Bogart v. M’Clurg, 11 Heisk. 105; First Nat. Bank v. Weston, 25 App. Div. 414, 49 N. Y. Supp. 542; Porter v. Thom, 30 App. Div. 363, 51 N. Y. Supp. 974, citing text.

17. See post, § 1152 et seq.

18. Walker v. Laverty, 6 Munf. 487 (1810). No authorities quoted. Devendorf v. West Virginia O. & O. L. Co., 17 W. Va. 175. See Cardwell v. Allen, 33 Gratt. 166.

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19. In Pate v. McClure, 4 Rand. 169 (1826), Carr, J., said: Clure says, in direct response to a particular interrogatory in the bill, that immediately on the return of the bills he gave due notice of the protest, both to Lynham and Pate; and this is strongly corroborated by the correspondence. But in truth, the case is taken wholly off that ground by the various subsequent promises to pay and acts of sanction and ratification given and done by Pate promises and acts covering an interval of twelve years, and done in the most solemn manner with full knowledge of the facts." [The court evidently does not mean knowledge of any laches, which it thought had not been committed, but knowledge of nonpayment.] "After this," continues the judge, "it is equally repugnant to reason and to law, that he should claim to be discharged for want of notice, and call on the other party to prove that he proceeded in strict conformity with all the niceties of the law merchant. If he

SECTION II.

PROMISE TO PAY AS PRESUMPTIVE EVIDENCE OF KNOWLEDGE OF

LACHES.

§ 1152. When it is conceded or proved that there was laches in respect to the demand, protest, or notice, the promise to pay after maturity should be regarded as prima facie evidence that the party making it knew of such laches, whenever such knowledge is deemed necessary to constitute a waiver. It is a promise against interest. The drawer or indorser should know when the instrument to which he was a party fell due. His promise to pay presupposes it to be overdue and unpaid. And if he has not received notice, he has every reason to suppose that it was not sent, and that the steps which should precede it were not taken.20 If he received notice of due dishonor, and nevertheless demand and protest were not duly made, it might be otherwise. As a general rule, however, the American decisions require separate proof of knowledge in all cases.21 And it has been held that a promise to pay, with knowledge that no notice was given, would not be a waiver unless there was also knowledge that due demand was not made.22

had intended to place himself on this ground, the time was when the bills came back and he was pressed for payment of them. He should then have said, 'Show that in all things you have proceeded strictly; that the bills have been regularly protested, and due notice of protest given to me.' Nor will it avail him to say that he was ignorant of the law; every man is bound to know the law." Insurance Co. v. Wilson, 29 W. Va. 541, citing the text.

20. "The weight of authority," says Chancellor Kent," is that this knowl edge may be inferred as a fact from the promise under the attending circumstances, without requiring clear and affirmative proof of the knowledge." 3 Comm. lect. 44. In Thompson on Bills (Wilson's ed.), p. 381, it is said, "There must be proof of knowledge of the failure;” and p. 384, “ Though it should not be proved, it will be presumed that he knew of the failure." Chitty on Bills (13th Am. ed.) [*504–505], 570; 1 Parsons on Notes and Bills, 603; Hopley v. Dufresne, 15 East, 275 (1812); Taylor v. Jones, 1 Campb. 105; Turnbull v. Hill (Scotch case), Thom. 381; Barkalow v. Johnson, 1 Harr. 397, Hornblower, C. J., saying: "The indorser knew indeed whether he had or had not received a notice of demand and nonpayment." Landrum v. Trowbridge, 2 Metc. (Ky.) 283; Loose v. Loose, 36 Pa. St. 538; Nash v. Harrington, 1 Aik. 39; Debuys v. Mollere, 15 Mart. 318; ante, § 1150.

67;

Trimble v. Thorn, 16

21. See ante, § 1149; Ford v. Dallam, 3 Coldw. Johns. 152 (overruled by Tebbetts v. Dowd, 23 Wend. 379); New Orleans Bank v. Harper, 12 Rob. (La.) 231; Lilly v. Petteway, 73 N. C. 358.

22. Low v. Howard, 11 Cush. 268.

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