ation to the judgment of the court. Nor did the treaty and the act of Congress, which had been referred to, dispense with the necessity of probate of the will in the appropriate local tri bunal, where all parties interested would have a right to contest its validity. The utmost effect that could be attributed by the conjoint operation of the law of France, the treaty, and the statute of Congress, to the execution and acknowledgment of such an act as a will or a codicil, before the consuls of the United States in France, would be to make it conclusive evidence, on which a court of probates in the United States might proceed; but it could not be considered as dispensing with all the local laws of the states on the probate of wills, and inverting the whole order of proceeding in cases of this sort, by which the paper must be ascertained, by the court having peculiar jurisdiction of testamentary causes, to be a will, before a court of equity can be called on to give a construction to it, and to decree a legacy under it. Nor could it be considered as a donation *mortis causa, and therefore not [*175 requiring probate; since, to constitute such a donation, the gift must be made in extremis, and must be accompanied with an actual delivery.' But in a recent case in the Ecclesiastical | purports to be," submitting its effect and oper173*] Court *in England, Sir J. Nicholl had considered the authorities as rather applying between different parts of the same empire, than between different countries entirely foreign to each other. If the law of France was to be applied, although the will was not executed in strict and literal conformity with the forms provided by the code Napoleon, it might be sustained as a donation mortis causa; a species of donation which the best commentators were of opinion was not abolished by the code, it having been preserved in Chancellor D'Aguesseau's ordinance of 1731. And perhaps it might also be considered a valid donation mortis causa by our law. In the case above cited, determined by Sir J. Nicholl, he refers to the Duchess of Kingston's case, and confirms it, where a will, "though made in France, where she was domiciled, being made by an English subject in the English language, and according to English forms, and to be executed in England, was valid as to personal property in England, though (neither being holographic nor made before a notary) it would, by the French law, have been of no validity. Nay, not only was it held good, but if the opinion of an eminent lawyer (M. Targat), as stated in the Collectanea Juridica, be correct, it was good, and would operate on the property in France." But it was further insisted that the execution of the testamentary paper before the consul at Paris was conclusive of its validity, and dispensed with the necessity of probate in the courts of this country. This was inferred from the conclusive effect attributed to what are termed "authentic acts" by the law of France, taken in connection with the provisions in the convention of 1800 between France and the United States (art. 7, 10), and the statute of Congress of April, 1792, ch. 126, s. 2, relat174] ing to the powers of consuls in the verification of such acts, among which testamentary papers are included." The Attorney-General and Mr. Lear for the respondent, contended that the question whether the paper of 1806 was to be considered as a revocation pro tanto of the will of 1798, depended upon its being authenticated as a testamentary disposition in the manner prescribed by the laws of this country. They referred to the well-known rule, which had been frequently recognized in this court, that foreign laws must be proved as facts, or they could not be taken notice of judicially by our courts. That consequently it was a case for the application of the ordinary principle, that a suit could not be maintained in a court of equity for a legacy, without first showing a probate in the proper court, of the will under which it was claimed. The admission in the defendant's answer did not dispense with this preliminary, because it was merely intended to admit that "the instrument was executed and acknowledged as it Mr. Justice Story delivered the opinion of the court: The bill in this case is brought against the administrator, with the will annexed, of General Kosciuszko, for the purpose of establish. ing a right of the plaintiff to receive payment out of the assets of the testator, of a certain bequest to him, contained in a supposed testamentary writing, executed by the testator at Paris, in France, in June, 1806. This supposed testamentary writing is set forth in the bill, and averred to be in the nature and of the effect of a last will or writing testamentary; but it does not appear to have been admitted to probate, either in France or in the proper Orphans' Court of this district. The answer admits the existence and authenticity of the instrument, and submits to the court its import and legal effect, and whether it is to be deemed a last will and testament; and it also admits assets in the hands of the administrator sufficient to discharge the bequest. The cause was heard in the court below upon the bill and answer, and from the decree dismissing the bill the present appeal has been brought to this court. The cause has been argued here upon several points, involving a good deal of learning, and some doctrines of international law. We do not enter into an examination of them, because our judgment proceeds upon a single point, and will in no event prejudice the merits of the plaintiff's claim. By the common law, the exclusive right to entertain jurisdiction over wills of personal estate, belongs to the ecclesiastical courts; and before any testamentary paper of personalty can be admitted in evidence, it must receive probate in those courts. Lord Kenyon, in The King v. Inhabitants of Netherseal, 4 Term 7.-2 Bl. Com. 514; Just. Inst. 1. 2, t. 7, s. 1; Dig. 1. 39, t. 6; Prec. in Ch. 269; 1 P. Wms. 406 441; 8 P. Wms. 357; 2 Ves. 431. Rep. 258, said, "we cannot receive any other Universal principle that a prior lien is entitled evidence of there being a will in this case, than to prior satisfaction out of the thing it binds, unsuch as would be suflicient in all other cases placed by some act of the party holding it, which less the lien be intrinsically defective, or is dis176] where titles are derived under a will; shall postpone him at law or in equity. and nothing but the probate or letters of adMere delay in proceeding to execution is not such an act. ministration, with the will annexed, are legal Distinction created by statute, as to executions evidence of the will, in all questions respecting against personal chattels, and reasons on which it is founded. personalty." This principle of the common law is supposed to be in force in Maryland, from which this part of the District of Colum bia derives its jurisprudence; and the probate ERROR to the District Court of Missouri. of wills of personalty to belong exclusively to the proper Orphans' Court here, exercising ecclesiastical jurisdiction. If this be so-and nothing has been shown which leads us to a different conclusion-then it is indispensable to the plaintiff's title to procure, in the first instance, a regular probate of this testa mentary paper in the Orphans' Court of this district, and to set forth that fact in his bill. The treaty stipulations, the act of Congress, and the principles of the law of France, which have been cited at the argument, attributing to them the full force which that argument supposes to establish the validity of the instrument, do not change the forum which is entitled, by the local jurisprudence, to pronounce upon it as a testamentary paper, and to grant a probate. It is one thing to possess proofs which may be sufficient to establish that a testamentary instrument had been executed in a foreign country, under circumstances which ought to give it legal effect here; and quite a different thing to ascertain what is the proper tribunal here, by which those proofs may be examined for the purpose of pronouncing a judicial sentence thereon. For this reason the decree of the court below is to be affirmed, but without prejudice, so that the instrument may be submitted to the decision of the proper probate court. 177*] [*Judgment Lien. Local Law.] RANKIN & SCHATZELL, V. SCOTT, Defendant in Error. The len of a judgment on the lands of the debtor, created by statutes, and limited to a certain period of time, is unaffected by the circumstance of the plaintiff not proceeding upon it (during that period), until a subsequent lien has been obtained and carried into execution. Note.-Lien of judgments, and how suspended or lost. The lien of a jpudgment upon real estate is not lost if, after a fieri facias has been levied and returned, the plaintiff in the action order proceedings to be stayed. It is otherwise if personal property be levied upon and left in the hands of the defendant. Green v. Allen, 2 Wash. C. C. 280. The lien of a judgment is suspended during an imprisonment of the judgment debtor on a capias, and a judgment obtained by another creditor dur ing that time gains a priority of lien on the debtor's property; or the debtor may sell the property and give to the purchaser a title discharged of the Incumbrance of the judgment. Griswold v. Hill, 2 Paine, 492. If a judgment becomes dormant, its llen is lost as against & mortgage executed by the judgment creditor during the continuance of the judgment In This was an action of ejectment, brought in the court below by the defendant in error, Scott, to recover the possession of a house and lot in the town of St. Louis. At the trial, a special verdict was found, stating, that in the year 1816, John Little married Marie Antoinette Labadie, who was then seized in fee of the house and lot in question. She died without issue, leaving the husband scized in fee of a moiety of the premises. He soon afterwards died without issue, and intestate. In April, 1821, judgment was rendered in the Circuit Court of the county where the premises lay, against the administrator of Little, in favor of Schatzell and another, for $2,747.19. March following, another judgment was rendered against the same, in favor of B. Pratte, for $1,241. Exccution was immediately issued upon the latter judgment, and the premises in question sold under it to Scott, the plaintiff in ejectment; and soon afterwards, another execution issued upon the first judgment, and the same premises were sold to Schatzell, one of the defendants below, and conveyed to him by the sheriff's deed. Rankin, who was tenant to Little in his life-time, remained in possession of the premises after his death, and attorned to Schatzell. The [*178 question raised upon these facts was, whether the sale by the sheriff, under the second judgment and first execution, devested the lien of the first judgment? The court below determined it in the affirmative; and the cause was brought, by writ of error, before this court. Mr. Benton, for the plaintiffs in error, relied upon the express provisions of the statute of Missouri, to show that the local law made the first judgment a lien upon the land for the term of five years, within which time it was enforced, and Schatzell purchased under it.1 For the general effect of a judgment lien, he cited the authorities in the margin.' 1.-Geyer's Dig. L. L. Missouri, 264, 267. 2.-1 Johns. Cas. 224; 13 Johns. Rep. 463, 533; 1 Dall. 481, 486; 4 Dall. 450. lien. Tracy v. Tracy. 5 McLean, 456; 5 Ohio, 178 10 Ohio. 403; 15 Ollo, 435. A judgment creditor who proves his debt against a bankrupt, thereby surrenders his judgment as a lien on the lands of the bankrupt. Briggs v. Stephens, 7 Law Rep. 281. A conveyance of the land, after a judgment has become a lien upon it, does not affect the llen. Kemper v. Bavey, 5 McLean, 507. The court cannot presume the existence of judgments against a party who has been dead for ten years. Hepburn v. Dunlop, 1 Wheat. 175, 195. Under the judiciary act of 1789, the courts of the United States have uniformly adopted the principles of state jurisprudence on the subject of the len of judgments, so far as applicable. Lombard v. Bayard, 1 Wall. Jr. C. C. 196. Judgments and decrees rendered in the courts of the United States are lens upon the defendant's Mr. Talbot, contra.1 Mr Chief Justice Marshall delivered the opinion of the court, and after stating the case, proceeded as follows: ject it binds, unless the lien be intrinsically defective, or be displaced by some act of the party holding it, which shall postpone him in a court of law or equity to a subsequent claimant. The single circumstance of not proceeding on it until a subsequent lien has been obtained and carried into execution, has never been con The act of the then territorial government of Missouri, on which this question depends, is in these words: "Judgments obtained in the gen-sidered as such an act. Take the common eral court shall be a lien on the lands and tenements of the person or persons against whom the same has been entered. situate in any part of this territory; and judgments obtained in a court of Common Pleas of any district, shall be a lien on the lands and tenements of the person against, whom the same has been entered, situate in such district." The act contains a proviso, "that no judgment hereafter entered in any court of record within this territory, shall continue a lien on the lands and tenements against whom the same has been entered, during a longer term than five years from the first return day of the term of which such judgment may be entered, unless the same shall have been revived by scire facias," etc. 179] *Since the territory of Missouri was erected into a state, the general court has received the appellation of the Superior Court, and the Court of Common Pleas for the district has been denominated the Circuit Court for the county. The execution on the first judgment was issued within a short time after it was rendered, and while the lien it created was in full force, unless it was removed by the execution and sale under the second judg ment. case of mortgages. It has never been supposed that a subsequent mortgage could, by obtain ing and executing a decrce for the sale of the mortgaged property, obtain precedence over a prior mortgage in which all the requisites of the law had been observed. If such a decree should be made without preserving the rights of the prior mortgagee, the property would remain subject to those rights in the hands of the purchaser. So, in cases of judgment, where an elegit may be sued out against the lands of the debtor. The implied lien created by the first judgment retains the preference over the lien created by a second judgment, so long as an elegit can issue on the first. A statutory lien is as binding as a mortgage, and has the same capacity to hold the land so long as the statute preserves it in force. The cases cited of executions against personal property, do not, we think, apply. In those cases, the lien is not created by the judgment, or by any matter of record. The purchaser of the goods cannot suppose that the officer has committed any impropriety in the performance of his duty, and this circumstance has [*180 induced parliament to secure him. It is stated by Ashhurst, Justice, in 1 Term Rep. 731, that this was the sole object of that part of the statute of frauds which relates to this subject. In the case at bar, the judgment is notice to the purchaser of the prior lien, and there is no act of the legislature to protect the purchaser from that lien. There is no expression in the law of Missouri which can suggest a doubt on this subject. By that law, judgments are to be a lien on all the lands of the debtor. This lien commences with the judgment, and continues for five years. The principle is believed to be univerWe think, then, that the deed made by the sal, that a prior lien gives a prior claim, which sheriff to the purchaser, under the first judg is entitled to prior satisfaction, out of the sub-ment, conveyed the legal title to the premises; and that the judgment on the special verdict 1.-1 Term Rep. 729; 1 Lord Raym. 251; 1 Burr. ought to have been in favor of the plaintiff. 20; 8 Co. Rep. 171; Cro. Eliz. 181; 1 Salk. 320. real estate in all cases where similar judgments or decrees of the state courts are made liens by the law of the state. Ward v. Chamberlain, 2 Black, 430; Williams v. Benedict, 8 How. 107; Massingill v. Downs, 7 How. 760; Myers v. Tyson, 13 Blatchf. 242; Barth v. Makeever, 4 Biss. 206. A judgment at law is not a lien upon real estate In the District of Columbia, which, before the judgment was rendered, had been conveyed to trustees with a power of sale to secure the payment of the debts of the grantor described in the deed of trust. Morsell v. First Nat. Bank, 1 Otto, 357 The len of a judgment upon land of the judgment debtor does not prevent the claim of a former owner to have his deed to the judgment debtor set aside upon the ground that it was procured from bim by duress. Brown v. Pierce, 7 Wall. 205; Baker v. Morton, 12 Wall. 150. A judgment of a court of the United States becomes a lien on lands throughout the district in which it is recovered. Carroll v. Watkins, 1 Abb. U. S. 474; U. S. v. Humphreys, 3 Hugh. 201; 7 Reporter, 330. A judgment rendered by a United States court sitting in Pennsylvania is a lien on real estate of the defendant anywhere in the state, notwithstand Judgment reversed. ing the judgment may have been rendered in one of the judicial districts into which the state is di vided, while the property lies in another. Prevost v. Gowell, 12 West. Jur. 369; 5 Reporter, 616. The satisfaction of a judgment by payment, in whole or in part, will release the lien to the extent of the payment; and it cannot be restored as a lien by any subsequent agreement between the partles. De la Vergne v. Everton, 1 Paige, 181; Troup v. Wood, 4 John. Ch. 228, 247; Winslow v. Clark, 3 Lans. N. Y. 377, 380; Garvey v. Jarvis, 54 Barb. 179; S. C. affirmed, 46 N. Y. 310; Deland v. Hiett, 27 Cal. 611. If the amount of the judgment be paid by one who is not a party and not liable thereon, the judgment will be extinguished or not, according to the desire of the party paying. Alden V Clark, 11 How. Pr. N. Y. 209; 11arbeck v. Vanderbilt, 20 N. Y. 395. Where a creditor recovers a new judgment on a judgment, the lien of the earlier judgment is not affected by the recovery of the new judgment, 1 of no higher degree than the former. Harvey v. Wood, 5 Wend. 221; Millard v. Whitaker, 5 Hill, 408; Andrews v. Smith, 9 Wend. 53: Jackson v. Shaffer, 11 John. 513; Mumford v. Stocker, 1 Cow. 178. 180 SUPREME COURT OF THE UNITED STATES. TILLOTSON et al. Where the burthen of proof of certain, specific defenses set up by the defendant is on him, and the evidence presents contested facts, an absolute direction from the court, that the matters produced and read in evidence on the part of the defendant were sufficient in law to maintain the issue on his part, and that the jury ought to render their verdict in favor of the defendant, is erroneous; and a judgment rendered upon a verdict purport. ing to have been given under such a charge will be reversed, although the record was made up as upon a bill of exceptions taken at a trial before the jury upon the matters in issue, no such trial ever having taken place, and the case having assumed that shape by the agreement of the parties, In order to take the opinion of the court upon certain questions of law. T HIS cause was argued by the Attorney-General and Mr. Coxe for the plaintiffs, and by Mr. Webster and Mr. Wheaton for the defendants. Mr. Justice Story delivered the opinion of the court: This cause comes before us from the Circuit Court for the southern district of New York, as upon a bill of exceptions taken 181*] to the opinion of the court, upon a trial before a jury upon the matters in issue. In reality no such trial was had; but the case assumed this shape by the agreement of the parties, in order to have the opinion of the court upon certain questions of law. must, however, consider the case exclusively upon principles applicable to it as a bill of exceptions taken at a real trial.' We Upon the argument in this court, various important questions have been elaborately discussed by counsel, upon which we forbear te express any opinion, as our judgment of re versal proceeds upon a ground which renders any decision on them unnecessary. agreement, binding on the United States, in matter of recital. But the case does not rest here. In another part of the record, evidence is to establish that the agreement so made had introduced on the part of the United States. never been ratified on the part of the war department; and also to show that it was understood by that department, that without such ratification the contract was not obligatory. We allude to that part of the record where it is stated that the agreement, as soon as exe cuted at Mobile Point, was transmitted to the war department, and that a letter was written by the authority of that department, under date of the 10th July, 1820, to the defendants, as Hawkins's sureties, inclosing a copy of the The bill of exceptions admits the due execuagreement, and requesting them, if they would tion of the bond in controversy, and the breaches stated in the declaration are answered by sanction it, to send certificates of the fact, and special notices of defense set up as bars to the "signify their approval, and authorize it to be suit. The burthen of proof of these defenses, carried into effect"-and it is added, "should you object, the contract will be carried on as It is in point of fact, rested on the defendants. The court is supposed to have charged the jury, before," that is, the original contract. that the matters produced and read in evidence further found by the case, that the agreement on the part of the defendants were sufficient in "was not ratified by the secretary of war, nor ever acted upon, except so far as it may appear law to maintain the issue on their part, and to have been ratified and acted upon [*183 that the jury ought to render their verdict in favor of the defendants. This charge can be by the said transcript" (of the treasury ac maintained in point of law only upon the sup-counts, contained in the record. It appears to us, that, taking this evidence position that the evidence presented no contested facts; for otherwise it would withdraw together, it was not a conceded point, but a from the jury their proper functions, to deter-matter of controversy between the parties, mine the facts upon the evidence in the cause. Upon examining the record, we think that whether the agreement was obligatory upon there is contradictory evidence, or rather evi- the United States, and had become absolute by This being so, it was a to perfect the same. dence conducing to opposite results, in respect the assent of all the persons who had authority to a point material to many of the specifica matter of fact to be decided by the jury, and tions of defense, and particularly as to the the charge of the court was erroneous in withmatters in the third, fifth, sixth, seventh, drawing it from the consideration of the jury. eighth and ninth. It is this: whether the con tract of the 7th of June, 1820, between Col. Gadsden, as agent of the war department, and Samuel Hawkins, was ever a consummated 1. The cause was argued and determined in the court below upon a case agreed upon between the parties, containing a state of facts; but as the state of facts was not annexed to the transcript of the record, this court could not take notice of it. For this reason it is our opinion that the judgment of the Circuit Court was erroneous, and ought to be reversed, and the cause be remanded, with directions to award a venire facias de novo.1 [Bill Of Exchange And Promissory Note. Sale With Warranty.] THORNTON, Plaintiff in Error, V. WYNN, Defendant in Error. An unconditional promise, by the indorser of a bill or note, to pay it, or the acknowledgment of his liability after knowledge of his discharge from his responsibility by the laches of the holder, amounted to an implied waiver of due notice of a demand from the drawee, acceptor, or maker. Upon a sale with a warranty of soundness, or where, by the special terms of the contract, the vendee is at liberty to return the article sold, an offer to return it is equivalent to an offer accepted by the vendor, and the contract being thereby rescinded, it is a defense to an action for the purchase money, brought by the vendor, and will entitle the vendee to recover it back if it has been paid. So, if the sale is absolute, and the vendor after wards consent unconditionally to take back the article, the consequences are the same. But if the sale be absolute, and there be no subsequent consent to take back the article, the contract remains open, and the vendee must resort to his action upon the warranty, unless it be proved that the vendor knew of the unsoundness of the article, and the vendee tendered a return of it within a reasonable time. 184*] HIS cause was argued by Mr. C. C. Lee for the plaintiff in error,' and by Mr. Worthington for the defendant in error." Mr. Justice Washington delivered the opinion of the court: This was an action brought by the defenuant in error against the plaintiff in error, in the Circuit Court for the District of Columbia and county of Washington, upon a promissory note given by one Miller to Thornton, and by him indorsed to Wynn. The declaration contains a count upon the note, and also the common counts for money laid out and expended, and for money had and received. 1-2 II. BI. 609 1 Moore's Rep. C. P. 535; 3 Camp. 57; 11 East's Rep. 114; 4 Dall. 109; 4 Taunt. 93; 1 Esp. 261; 6 East's Rep. 110; 1 H. Bl. 17. 2-1 Term Rep. 405: 2 Term Rep. 703: 1 Esp. 302: 12 East's Rep. 171: 4 Cranch, 141; 2 Johns. Rep. 17 Mass. Rep. 449: 5 Mass. Rep. 170; 11 Johns. Rep. 180; Peake's N. P. Cas. 203; 1 Taunt. 12: 2 Term Rep. 713: 15 East's Rep. 275: Cowp. 888; Dougl. 24; 1 Term Rep. 133; 7 East's Rep. 274; 2 Taunt. 2; 14 Johns. Rep. 416; 2 East's Rep. 320. An unconditional promise by the drawer or indorser of a bill or note to pay it, made after knowledge of his discharge from responsibility by the laches of the holder, amounts to a waiver of due notice of a demand from the drawce, acceptor, or maker. Sigerson v. Matthews, 20 How. 496: Mor ris v. Gardner, 1 Cranch. C. C. 215; Perry v. Rhodes, 2 Cranch, C. C. 37; Lundie v. Robertson, 7 East, 231: Hopes v. Alden, 6 East, 16; Porter v. Rayworth, 13 East, 417: Story, Prom. Notes, scc. 364; 2 Daniels' Neg. Instr. sec. 1093. So, an acknowledgment after maturity of the Indorser's liability to pay, or a promise to pay the note or bill, or to see it paid, or an acknowledg ment that it must be paid, with knowledge of the laches of the holder, is a waiver of notice, and renders the indorser liable. Duryee v. Denison, 5 John. 248; Yeager v. Folwell, 13 Wall. 12; Reynolds v. Douglass, post, 497; Dank of U. S. v. Lyman, 20 Vt. 666; Read v. Wilkinson, 2 Wash. Č. C. 514; Sherman v. Clark, 2 McLean, 91; Martin v. Winslow, 2 Mas. 41; Thornton v. Stoddert, 1 Cranch, C. C. 534; Good v. Spring, 2 Cranch, C. C. 172: Cassaway v. Jones, 2 Cranch, C. C. 334; Sig At the trial of the cause upon the general issue, the defendant below took two exceptions to the opinion of the court which are to the following effect: The first states that the plaintiff gave in evidence the note and indorsement mentioned in the declaration, and in order to dispense with the proof of the ordinary steps of diligence in presenting and demanding the note of the drawer, and giving notice to the indorser, the plaintiff offered evidence to prove that a few weeks before the institution of this suit the note in question was presented to the defendant, who, being informed that Miller, the drawer, had not paid the note, said, “he knew Miller had not, and that Miller was not fendant alone, and Miller had nothing to do to pay it; that it was the concern of the dewith it; that the note had been given for part of the purchase money of a certain racehorse called Rattler, and that the defendant offered to take up the said note if the plaintiff's agent would give time, and receive other notes mentioned in payment:" to the admission and competency of which evidence the defendant objected; but the court overruled the objec tion, and admitted the evidence as [*185 competent to support this action, without any further proof of demand upon the drawer or notice of the indorser. That the said evidence being so admitted by the court, the defendant offered evidence to prove that the said note was given for part of the purchase money of the said race-horse, then celebrated for his performances on the turf, sold by the plaintiff to the defendant, and the said Miller, the drawer of the note, for $3,000, of which $2,000 had been paid; that the plaintiff, at the time of so selling this horse, warranted him sound, and declared him capable of beating any horse in the United States, and recommended the purchasers to match him against a celebrated race-horse in New York, called Eclipse; that he also gave a representation of his pedigree, which he described as unexceptionable, and promised to procure his pedigree and send it to the defendant. And the defendant then offered evidence to prove that the said horse, at the time of the said sale, was utterly unsound, and broken down, and had been broken down whilst in the plaintiff's Possession, and was reputed and proven by persons in the neighborhood of the plaintiff, erson v. Matthews, 20 How. 496; Salisbury v. Renick, 44 Mo. 554; Hughes v. Bowen, 15 Iowa, 446; Spurlock v. Union Bank, 4 Humph. 338; Hazard v. White, 26 Ark. 280; Matthews v. Allen, 16 Gray, 594; Smith v. Curlee, 59 Ill. 221; Story on Notes, 274, 275; 1 Parsons' N. & B. 594; Edwards on Bill's, 650, 651, 652; Daniels on Neg. Instr. sec. 1147; Ross v. Hurd, 71 N. Y. 18; Harrison v. Bailey, 99 Mass. 620. Due presentment for payment and notice of nonpayment are conditions precedent to the liability of an indorser of a promissory note. Cayuga County Bank v. Warden, 1 Comst. N. Y. 413; S. C. 2 Seld. N. Y. 19. By omitting either of these acts, the holder loses his right of recourse to the indorser, who is thereby discharged. Spies v. Gilmore, 1 Comst. 321. These omissions of the holder may, however, be waived by a subsequent promise to pay the bill or note, if the promise is made with knowledge on the part of the drawer or indorser, that he has been discharged by the neglect of the holder. Tebbetts v. Dowd, 23 Wend. 379; Cram v. Sher burne, 14 Me. 48; Martin v. Ingersoll, 8 l'ick; Beck v. Thompson, 4 Harr. & J. 531; Farrington v Brown, 7 N. H. 271; Porter v. Hadenpuyl, 8 Mich. |