to accept the bill supra protest. Ex parte Wackerbarth, 5 Ves. 574. Excused - by part payment.] The party entitled to notice may waive his right to it, either by part payment or by a promise to pay, provided that at the time of such promise or payment he had notice of the fact of dishonor. Thus where in an action upon a promissory note by the indorsee against the indorser, it was proved that the defendant had paid part of the money; Lee, C. J. held that sufficient to dispense with proving a demand upon the maker of the note. Vaughan v. Fuller, 2 Str. 1246. So where in an action against the drawer of a bill it appeared that after the dishonor of the bill, the defendant had paid part, and that no objection had been made to the want of notice, Mansfield, C. J. left it to the jury to presume a notice to the drawer, and a verdict being found for the plaintiff, the court of C. P. refused to set it aside. Horford v. Wilson, 1 Taunt. 12. Excused-by promise to pay.] A promise to pay the bill is a waiver of notice, for it is an admission that the plaintiff has a right to resort to the defendant upon the bill, and that the latter has received no damage by the want of notice. Thus it was ruled by Raymond, C. J., that if the indorser has neglected to demand of the drawer in a convenient time, a subsequent promise to pay by the drawer will cure his laches. Haddock v. Bury, T. 3 G. 2. MS. Burnet, J. 7 East, 236. (n.) The holder of a note which had been dishonored, kept it seventeen or eighteen days enquiring for the maker; he then wrote to his agent to inform the defendant, the indorser, who returned no answer. About ten days after, the agent went to the defendant, who acknowledged the receipt of the letter, and said that the reason why he had not sent an answer, was that the maker had promised to order payment in London, and as it was not paid, that he would certainly pay it the day after. Per Wilmot, J. Holding the note for so long a time was unreasonable and would have discharged the defendant, if, when he received the first notice he had disclaimed the having any thing to do with it: but by his conduct he has waived the neglect, and acquitted the plaintiff." However, he left it to the jury, who found for the defendant. Whitaker v. Morris, 1 Esp. Dig. N. P. 69. 4th Ed. So where the drawer of a foreign bill, which was dishonored, on the holder representing that fact to him, and pressing him for payment, said that it must be paid, this was held in point of law to amount to a promise that the bill should be paid, and to do away with the necessity of considering the question relative to the want of notice. Rogers v. Stephens, 2 T. R. 713. See also Anson v. Bailey, B. N. P. 276. Hopes v. Alder, 6 East, 16. (n.) So where the defendant, the in dorser of a bill which had been dishonored, on being applied to said, "that he had not cash by him at that time, but if the witness would call in a day or two and bring the account, he would pay it ;" and a short time afterwards said, "that he had not had regular notice, but as the debt was justly due he would pay it;" it was held, that this promise dispensed with proof of notice. Lundie v. Robertson, 7 East, Rep. 231. So, where in an action against the drawer, the plaintiff in lieu of the usual proof of the dishonor, &c., gave in evidence a letter of the defendant, in which he stated, that he was an accommodation drawer, and that the bill would be paid before the next term; Lord Ellenborough said, The defendant does not rely upon the want of notice, but undertakes that the bill will be paid before the term, either by himself or the acceptor. I think the evidence sufficient." Wood v. Brown, 1 Stark. 217. 66 Where the drawer of a bill became a bankrupt before the bill was due, and the bill when due was dishonored, and no notice of the dishonor given to the drawer; but subsequently to the act of bankruptcy, the drawer on being asked if the bill would be paid, answered, No-that it would come back; the court of K. B. held, that this was sufficient to supply the want of notice. Brett v. Levett, 13 East, 213. The promise to pay must be unequivocal, and therefore, when a foreigner, the drawer of a bill which had been dishonored, and of which no notice had been given, being asked to pay the bill said, "I am not acquainted with your laws, if I am bound to pay it I will," the plaintiff was nonsuited. Dennis v. Morrice, 3 Esp. 158. In an action against the drawer of a bill, in order to obviate the want of notice, the clerk to the plaintiff's attorney was sworn, who stated, that having called upon the defendant after his arrest in this action, he asked him "What he had to propose by way of settlement?" and that the defendant then said, am willing to give my bill at one or two months,' but that this offer was rejected. Per Lord Ellenborough, "This offer is neither an acknowledgment nor a waiver to obviate the necessity of expressly proving notice of dishonor. He might have offered to give his acceptance at one or two months, although being intitled to notice of the dishonor of the former bill, he had received none, and, although upon this compromise being refused he meant to rely upon the objection. If the plaintiff accepted the offer well and good; if not, things were to remain on the same footing as before it was made." Cuming v. French, 2 Campb. 106. (n.) Where the indorser of a note, who was discharged by want of notice, on being arrested said to the bailiff," that it was true the note had his name on it, but that he had security, though he wished for time to pay it ;" Lord Kenyon said, that when a person is arrested, and at the time ignorant of his rights, or whether he is bound by law to pay the demand or not, and under such circumstances makes any L confession and seemingly admits the demand, such admission shall not be allowed to be given in evidence to charge him. Rouse v. Redwood, 1 Esp. 156; but see post, p. 220. A promise to pay made subsequently to the dishonor, not to the plaintiff, but to another party to the bill, will operate as a waiver of the notice in an action by the plaintiff. The defendant, the payee of a note, indorsed it to Fulford, Fulford to Potter the plaintiff, and Potter to Kirton, who indorsed it again. The note was dishonored the 24th December, but no notice reached the defendant till the 7th January, when Kirton having taken up the note, called on the defendant, who promised to pay Kirton the next day. Having failed in this, Kirton applied for and received payment from the plaintiff. The defendant objected the want of notice, but the plaintiff had a verdict, and on motion for a new trial, Lord Ellenborough said, that whether the promise to pay were made to the plaintiff, or to any other person 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 dishonor; and Bayley J. considered the promise by the defendant, either as an acknowledgment that he had had due notice of the dishonor, or that without such notice, he was the proper person to pay the note, as the party for whose use it was drawn. Potter v. Rayworth, 13 East, 417. In an action upon a bill, drawn by the defendant, indorsed to Kinnear and by Kinnear to the plaintiff, it appeared that the bill bad been dishonored and no notice given to the defendant, but the plaintiff gave in evidence an agreement made between the defendant and Kinnear after the bill became due, by which, after reciting that the defendant had indorsed and drawn various bills of exchange, (one of them being the bill in question), and which were then all over-due, and which were or ought to be in the hands of the said Kinnear; it was agreed by Kinnear, that he would accept and take from the defendant the sums of money which might be due upon the bills by weekly payments, &c. At the trial the Chief Justice was of opinion, that the recital in the agreement was an acknowledgment by the defendant, that he was then in such a situation as to be liable to pay the bill, and consequently that he had received notice of dishonor, and the plaintiff obtained a verdict. On motion for a new trial, Per Cur. "The recital in the agreement is evidence that notice of dishonor was given to the defendant; for if notice had not been given, nothing would become due upon the bill from the defendant; the latter, therefore, would not have agreed to pay Kinnear whatever was due upon this particular bill, but would have insisted upon a discharge." Gunson v. Metz, 1 B. & C. 193. 2 D. & R. 334. S. C. The whole of what was said by the defendant when he made the subsequent promise must be taken together; therefore, in an action against the drawer of a bill for 200l. where no notice had been given, but it was proved that the defendant had said, "I do not mean to insist upon want of notice, but I am only bound to pay you 70%.," Abbott C. J. ruled, that the plaintiff was only intitled to recover 701. Fletcher v. Froggatt, 2 C. & P. 570. Excused by part payment or promise to pay-only where the party knows of the laches.] Part payment or a promise to pay is only a waiver of notice, where the party paying or promising is acquainted with the fact of laches having been committed. Where the indorser of a bill of exchange, who had had no knowledge of its being presented for acceptance and refused after it became due, called on the holder and told him, that he would take up the bill as he came back, but on his return said he had been advised not to do it, the court of K. B. held that the indorser was nevertheless discharged. Blesard v. Hirst, 5 Burr. 2670. So where a bill was presented for acceptance and dishonored on the 8th November, but no notice was given to the indorser, the defendant, till the 6th January, and on the 11th the bill became due, and on the following day the indorser made a proposal to one of the plaintiffs to pay the bill by instalments, Heath J. was of opinion, that as the proposal was made under an ignorance of all the circumstances of the case, which it was material for the indorser to know, he was discharged by the laches of the plaintiffs. After verdict for the defendant, the court refused a new trial. Per Ashhurst J. "It is said that the defendant made himself subsequently liable by his proposal to pay the bill by instalments, which amounted to an acknowledgment of the debt. That argument might as well have been urged in the case of Blesard v. Hirst, (supra), as the present, if it had been thought material; for there the indorser absolutely promised to pay the bill on his return from Leeds, but on his being apprised, that he was not bonnd by law, he refused, and yet that was not held as a waiver of the want of notice." Goodall v. Dolley, 1 T. R. 712. See Hopley v. Dufresne, 15 East, 275. The above were cases of dishonor by the drawee refusing to accept, but where payment is refused and the defendant afterwards promises to pay, it is not necessary for the plaintiff to prove that the defendant knew that the bill had been actually presented and refused. Thus in an action against the indorser of a note, due 5th May, 1805, the plaintiff proved that in the year 1807, the defendant being requested to pay the note, promised he would, but prayed for further time. There was no evidence of presentment or notice, nor did it appear that when the defendant promised to pay, he knew whether any application had been made to the maker. It was contended for the defendant, that it should appear that the promise was made with full knowledge of the laches of the holder, but Bayley J. held, that where a party to a bill or note know ing it to be due, and knowing that he was intitled to have it presented when due to the acceptor or maker, and to receive notice of its dishonor promises to pay it, this is presumptive evidence of the presentment and notice, and he is bound by the promise so made. Taylor v. Jones, 2 Campb. 105. It seems to have been the opinion of Lord Kenyon in the following case, that in order to render a promise to pay a waiver of notice, the party making it must not only be cognizant of the facts, but also of the law, and must be aware that he is legally discharged. The plaintiff gave a bill to the defendants on L. and Co. The defendants gave time to the acceptors, and they afterwards became insolvent, of both which circumstances the defendants gave the plaintiff notice, and he at their request in a letter, accepted another bill, which he afterwards paid, and this action was brought to recover back the money paid. Per Ld. Kenyon, My opinion is against the defendants. It is not only necessary that the plaintiff should know all the facts, but that he should know the legal consequences of them; it seems to me, that the plaintiff did not know the legal consequences of them, and that he paid the money under an idea that he might be compelled to pay it. When the defendants granted this indulgence of two months to L. & Co., they gave it at their own risk. Where a man knowing all the facts explicitly, and being under no misapprehensions with regard to any of them, nor of the law acting upon them, chooses to pay a sum of money, volenti non fit injuria, he shall not recover it back again; but the letters of the plaintiff in this case prove directly the contrary, for they are written in a complaining style." Chalfield v. Paxton, 38 Geo. 3. Chitty, 304, 5th Ed. 236. 7th Ed. Differently reported, 2 East, 471. (n). 5 Taunt. 155. But when this case was afterwards brought before the K. B. there were other circumstance of fact relied on, and it was so doubtful at last on what precise ground the case turned, that it was not reported, 2 East, 471; and the opinion of Lord Kenyon is not now considered to be law; (See Bilbie v. Lumley, 2 East, 469. Brisbane v. Dacres, 5 Taunt. 143 ;) as appears from the following case. In an action by the indorser against the drawer of a bill, the defence was time given to the acceptor. In answer to this it was proved, that after the indulgence, which was known to the defendant, he promised to pay the bill, saying to the plaintiff, "I know I am liable, and if Jones does not pay it, I will." After verdict for the plaintiff, a new trial was moved for on the authority of Chalfield v. Paxton and Bize v. Dickason, (1 T. R. 285.); but the court considered those cases to have proceeded on the mistake of the person paying the money under an ignorance or misconception of the facts of the case, but here the defendant had made the promise with a full knowledge of the circumstances, three months after the bill had been dishonored, and could not now defend himself |