formation *which was subsequently given to them? We *649 think not, and that all of the cases in relation to this subject imply the contrary. The books are full of cases where mistakes of this kind have been committed, and suits afterwards brought when the residence of the party was discovered. Yes it does not seem to have been supposed in any of them that a second notice was necessary, nor are we aware that any such point has ever been raised. Yet if a notice thus given, after diligent inquiry, is not equivalent to actual notice, knowledge subsequently obtained would be a defense to the action, even if the holder had brought suit before he learned what was the nearest or usual post-office of the defendant.” $866. Delay in giving notice may also be excused, by the circumstance of the day on which the holder should regularly have given the notice being a public festival, on which he is strictly forbidden by his religion to attend to any scenlar af "The law merchant respects the religion of different people. For this reason we are not obliged to give notice of the dishonor of a bill on our Sunday," and the Jew is excused from giving notice on a day during which his religion does not permit him to attend to any sort of business." fairs. § 867. Delay may also be excused, if a state of war interrupts the communication and prevents the transmission of notice ;* if the holder or his agent suddenly fall sick or dead, inducing a delay;" or where there is a delay caused by the prevalence of any malignant disease," or if the mails be interrupted and stayed by a superior force, or by anaccident which is not attribu Lambert et al. v. Ghiselin, 9 Howard U. S., 552, decided in 1850. Lindow v. Unsworth, 2 Campb., 602; Chitty on Bills, 454. This is different from saying that a holder must present a note made by a Jew, and falling due on a Saturday, or on a Jewish festival, on the day previous, at his peril. Story on Bills, $$ 340; ante, 529, 530. 'Hopkirk V. Page, 2 Brock., 20; Griswold v. Waddington, 16 John. R., 438; Woods v. Wilder, 43 N. Y., 164; U. S. v. Gossmeyer, 9 Wall., 75; McVeigh v. Bk. of Old Dominion, 26 Grat., 838; Harden v. Boyce, 53 Barb., 427: Shaw v. Neal, 19 La. Ann., 159. See former chapter: Of proceedings on non-acceptance; ante, 458, 392-399. 'Ante, 492. table to the fault of the holder.' When, however, the impediment is removed the duty to make demand and give notice revives.1 § 868. As a general rule, the indorser of a note not negotiable is not entitled to the usual privilege of an indorser of 650* negotiable *paper; he stands in the relation of principal and not surety to his indorsee, and has no right to insist upon a previous demand of the maker, and notice of non-payment. As he cannot be charged upon the usual contract implied in the case of negotiable paper, it is said an absolute guaranty may be written over his indorsement, upon which a recovery may be had against him. But where a person writes his name on the back of a promissory note, and inay be charged thereon as an indorser, he agrees that he will pay the note to the holder, on receiving due notice that the maker, on demand made at the proper time, has neglected to pay it; and the case is not open to any intendment. If a third person writes his name on the back of a negotiable note, before the same has been indorsed by the payee, the presumption of law is that he intends to assume the liability of a second indorser. But where he indorses a note payable to a particular person, or bearer, before the same has been delivered to the payee, he is chargeable thereon as first indorser, on the usual conditions precedent, of demand and notice." § 869. When the fact appears that there has been laches on the part of the holder, a subsequent promise by the indorser to pay the bill, will not render him liable, unless it also appears 1 Windham Bk. v. Norton, 22 Conn., 213; Blain v. Wilson, 28 Grat., 172; Story on Notes, § 231, ante, 492; See Proceedings on Non-acceptance; Presentment for Payment; 3 Wend., 488. ? Farmers' Bk. v. Gunnell, 26 Grat., 132; House v. Adams, 48 Pa. St., 266; Peters v. Hobbs, 25 Ark., 67; Durden v. Smith, 44 Miss., 552; Shaw v. Neal, 19 La. Ann., 156. 3 Seymour v. Van Slyck, 8 Wend., 403; Plimley v. Westley, Bing. N. C., 249; 2 Scott, 423; 1 Hodges, 324; S. C., Huse v. Hamblin, 29 Ia., 501. 48 Wend., 422; 12 John R., 159; 17 id., 326; or the indorser may be held liable as a maker. 10 Barb. R., 402; Wilson v. Ralph, 3 Clark (Iowa), 450; Coulter v. Richmond, 59 N. Y., 478. 5 Seabury v. Hungerford, 2 Hill R., 80; Labron v. Woram, 1 Hil. R., 91; see Moore v. Cross, 23 Barb., 534; Cottrell v. Conklin, 4 Duer, 45. Dean v. Hall, 17 Wend., 214; ante, 274, 230. that the promise was made with full knowledge of the fact that he had been discharged by the laches of the holder.' Such promise may be established by any transaction between him and the holder which clearly indicate a purpose to continue his liability. It cannot, however, be inferred from doubtful or equivocal acts or language. But any acts by which the indorser admits his liability, with knowledge of the facts of his discharge, will be a waiver of demand and notice. And on proof of a promise by the indorser, with knowledge that he was not liable on the bill, the holder may recover: not, however, on the ground that the indorser is bound by the promise, as matter of contract, for it wants consideration; but on the ground that a promise amounts to a waiver of the objection. that the proper steps have not been taken to charge *the indorser; and the same rule applies in respect to *651 the drawer. By this it is not meant that it must appear that the drawer or indorser knew the law of the case when he made the promise; it is enough if he be shown to have made the promise with knowledge of the facts; for he cannot defend himself upon the ground of his ignorance of the law when he made the promise." 1 Baer v. Leppert, 5 Hun. 453; Richard v. Boller, 6 Daly, 460; Ross v. Hurd, 71 N. Y., 14; Salisbury v. Renick, 44 Mo., 554; Stone v. Smith, 30 Tex., 138; Lilly v. Petteway, 73 N. C., 358; Newberry v. Trowbridge, 13 Mich., 264: Freeman v. O'Brien, 38 Ia., 406; Walker v. Rogers, 59 Ill., 279; Bakersville v. Harris, 41 Miss., 535; Hunter v. Hook, 64 Barb., 469; Blum v. Bidwell, 20 La. Ann., 43. The evidence must be clear to establish a waiver. Oswego Bank v. Knower, Hill & Denio, 122. 2 Ross V. Hurd, 71 N. Y., 14; Tardy v. Boyd, 26 Grat., 631. Moyer's appeal, 87 Pa. St., 729. Harris v. Dalley, 99 Mass., 620; Mathews v. Allen, 82 id., 594. 5 Per BRONSON, J., in Tebbetts v. Dowd, 23 Wend., 379. On the trial, a witness for the plaintiff testified that a few days after the check became due he met Tebbetts the indorser and told him that the check had lain over, and that he ought to take it up: that Tebbetts answered, that he knew that the check had been dishonored, and had lain over, and said that he would arrange it in a few days; that he had received part of the money for which the check was given, and that he must and would see the check taken up, and promised to take up and pay it. On this evidence a motion for a nonsuit was made and denied, after which the jury found a verdict for the appeal, and the judgment below was affirmed. Ross v. Hurd, 71 N. Y., 14; Hazard v. White, 23 Ark., 155. Stevens v. Lynch, 2 Campb., 333; S. C., 12 East, 39; Reynolds v. Douglass, 12 Peters' R., 497; Ladd v. Kenney, 2 N. II., 340; Boyd v. Cleveland, 4 Pick., 525; and the long array of authorities cited by Mr. Jus § 870. A promise to pay, made under a misapprchension of fact, is no waiver of the consequences of laches;' nor is a promise made in ignorance of a material fact a waiver; as where the drawer or indorser promises to pay without knowledge that no notice has been sent. In other words, where the drawer or indorser has been discharged by the laches of the holder, and that fact appears, there must be, in order to render him liable, clear proof that the promise was made with a full knowledge of all the facts and circumstances. But where a note is the note of a corporation and the indorser is its treasurer, it will be presumed that he had knowledge that no demand had been made or notice given.* The distinction drawn by Mr. Justice CowEN between a waiver of admitted laches and presumptive evidence of due notice, appears to be well sustained." At all events, it is clear that much stronger proof is required to charge the indorser, where it appears that the holder has been guilty of laches, than is necessary where there is no evidence of notice 652* *or want of notice except that which is furnished by the drawer or indorser's acknowledgment or promise to pay." If it be shown that the holder has been guilty of laches, it must also appear that the promise was made with full knowledge of them, or it will not bind the party making it; and the burden of proving such knowledge is upon the holder." tice COWEN in Tebbetts v. Dowd, supra; Contra, Williams v. Union Bk. of Tenn., 9 Heisk. (Teun.), 441; Third Nat. Bk. v. Ashworth, 105 Mass., 503; Hughes v. Bowen, 15 Ia., 446; Givens v. Mercht's Nat. Bk., 85 III., 444. 'Goodall v. Dalley, 1 Term R., 712; Blessard v. IIurst, 5 Burr., 2672. 2 Crain v. Colwell, 8 John. R., 384; Low v. Howard, 10 Cush., 159; ante, 650. 3 Spurlock v. Union Bank, 4 Humph. (Tenn.) R., 336. 4 Mathews v. Allen, 82 Mass., 594. 523 Wend., 383; ante, 693-636. Miller v. Hackley, 5 John. R., 376. ▲ declaration made to a third person by the indorser, to the effect that the want of notice would make no difference with him, he should do what was right, is not a sufficient waiver of demand and notice. Swartz, 5 Cala., 480. Olendorf v. 'Duryee v. Dennison, 5 John. R., 248: Thornton v. Wynn, 12 Wheat.. 183; ante, 473, 650, 651; Hunter v. Hook, 64 Barb., 469; First Nat. Bk. of Groton v. Crittenden, 2 T. & C., 119; Johnson v. Arrigoni, 5 Oreg., 485; Richard v. Boller, 51 How. Pr., 371. * Lilly v. Petteway, 73 N. C., 358; Freeman v. O'Brien, 38 Ia., 406; and citations above. But if no laches are shown, a promise to pay is presumptive evidence of due notice.' 871. A conditional promise to pay is not of itself sufficient evidence of notice or waiver of notice. The cases go to this point only; that if, after the dishonor of a bill, the drawer distinctly promises to pay, that is evidence from which it may be inferred he has received notice of the dishonor; becanse men are not prone to make admissions against themselves; and, therefore, when the drawer promises to pay, it is to be presumed he does so because he knows the acceptor has refused. The promise is not direct evidence of the fact; *but in the language of Mr. Justice BAYLEY, where a *653 party to a bill or note, knowing it to be due, and knowing that he was entitled to have it presented when due to the acceptor or maker, and to receive notice of its dishonor, prom 'Lundie v. Robertson, 7 East, 231 (1806). An indorsce, three months after the bill became due, demanded payment of the indorser, who first promised to pay it if he would call again with the account, and afterwards said that he had not had regular notice, but as the debt was justly duc he Day it. Held, that the first conversation being an absolute promise would to pay the bill, was, prima facie, an admission that the bill had been presented to the acceptor for payment in due time, and had been dishonored, and that due notice had been given of it to the indorser, and superseded the necessity of other proof to satisfy these averments in the declaration. Dorsey v. Watson, 14 Missouri, 59 (1851). When the drawer of a bill promises to pay it after it has been dishonored, the legal presumption is that he has been duly notified; and the promise made a long time after, dispenses with the necessity of any proof that he has received notice of pronon-payment. Ante, 478, 651, and post, 653-655. test for ? Jones v. O'Brien, 26 Eng. Law and Eq. R., 283. The action here was by the indorsee against the drawer of a bill of exchange; and there being proof that the defendant acknowledged his liability, and promised to see it arranged, to settle it; it was left to the jury to find whether as a fact there had been due notice of dishonor given to the defendant; and the jury were instructed that evidence of a promise to pay was sufficient evidence of no fice. And although the defendant was called as a witness, and testified that to the best of his belief he had no knowledge of the dishonor till a fortnight afterwards, the finding of the jury against him was held conclu sive. 1854. De Wolfe v. Murray, 2 Sand. R., 166; Metcalffe v. Richardson, 73 Eng. Com. Law R., 1010 (1852). On the day after the bill became due, the holder's clerk called on the drawer, and told him the bill had been presented and the would acceptor could not pay it, to which the drawer answered that he the holder about it; held, sufficient to be submitted to the jury see to infer the fact of due notice. Hazard v. White, 26 Ark., 155. 209 VOL. II.-14 |