bility of the par draw a bill in a foreign country upon another in Eng- 6thly. Of the lialand, and it be protested for non-acceptance, the draw ties to a bill on er will be discharged from liability to be sued in this non-acceptance. country, by his having obtained a certificate of discharge, according to the law of the country where he drew the bill'. In De Tastet v. Baring, a verdict having passed for the defendants, in an action to recover the amount of the re-exchange upon the dishonour of a bill drawn in London on Lisbon, upon evidence that the enemy were in possession of Portugal when the bill became due, and Lisbon was then blockaded by a British squadron, and there was in fact no direct exchange between London and Lisbon, though bills had in some few instances been negociated between them through Hamburgh and America about that period, the court refused to grant a new trial, on the presumption that the jury had found their verdict on the fact, that no re-exchange was proved to their satisfaction to have existed between Lisbon and London at the time; the question having been properly left to them to allow damages in the name of re-exchange, if the plaintiff, who had indorsed the dishonoured bill to the holder, had either paid or were liable to pay reexchange, and saving the question of law, whether any re-exchange could be allowed between this and an enemy's country. If the holder of a bill neglect to present it for acceptance when necessary, or to give notice of nonacceptance to those persons entitled to object to the want of it, such conduct, we have seen, discharges them from their respective liabilities 3. The consequences, however, of a neglect to give notice of non-acceptance, or to protest a foreign bill, may be waived by the person entitled to take advantage of them. Thus it has been decided, 7thly. How the consequences of a neglect to give waived, or other notice may be wise done away. 1 Ante, 256. 7thly. How the that a payment even of part, or a promise to pay, consequences of a neglect to give notice may be wired, or other wise done away. 1 Bayl. 130, 1. 220, 1. Vaughan v. Fuller, 2 Stra. 1246, was an action against the indorser of a note, and it being proved that the defendant had paid part, Lee, C. J. held that that made the proof of demand upon the maker unnecessary. nour, Horford v. Wilson, 1 Taunt. 12. In an action by the indorsce against the drawer of a bill, which had been dishonoured by the acceptor, it appeared that the defendant had paid part of the money due upon the bill without making objection for want of notice of the disho and the court held upon a motion for a new trial, that from this the jury were warranted in presuming that due notice had been given. Bayl. 130, 1. 220, 1.—Selw. N. P. 4th ed. 323.-Haddock v. Bury, Mid. Ter. 3 Geo. 2. MS. Burnet, J. 7 East. 236, n. a. Per Lord Raymond, C. J. "if an indorsee has neglected to demand of the maker of the note on due time, a subsequent promise to pay by the indorser will cure this laches." 2 Whitaker v. Morris, Worcester Lent Ass. 1756. MS. 1 Esp. N. P. 58. Select Ca. 171, S. C. The plaintiff received a note of Yardley, payable to the defendant. When it was due the plaintiff sent the note to demand the money, but not finding Yardley, he kept the note for seventeen or eighteen days, during which time it was proved that he used due diligence to find him; he then wrote to his agent to inform the defendant, who returned no answer. About ten days after the agent went to the defendant, who acknowledged the receipt of the letter, and said, the reason why he had not sent an answer was, that Yardley had promised to order payment in London, and as it was not paid "that he would certainly pay it the day after." The defendants witnesses proved that Yardley was solvent when the note became due. and for sometime after, but then was insolvent. 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. Lundie v. Robertson, 7 East. 231.-3 Smith Rep. 225. S. C. In. dorsee against an indorser of a bill, no evidence was given of presentment or notice, but it was proved, that on being called upon by the plaintiff's clerk some months after the bill was due, the defendant said" he had not the cash by him, but if the clerk would call in a day or two and bring the account, (meaning of the expences) he would pay it." The bill was shewn to him at the time; on a second application he offered a bill on London for the debt and expences, which was refused; he then said, that "he had not had regular notice, but as the debt was justly due he would pay it." Chambre, J. thought this sufficient, and verdict for the plaintiff. On a rule nisi for a new trial, and cause shewn, Lord Ellenborough said, the case admits of no doubt; it was to be presumed primâ facic from the promise to pay, that the bill had been presented in time, and that due notice had been given, that no objection could be made to payment, and that every thing had been rightly done; this superseded the necessity of the ordinary proof, the other conversation does not vary the case, for though the defendant said, he had not had notice, he waived that objection. See Gibbon v. Coggon, 2 Campb. N. P. C. 188, where from the drawers promising to pay a bill, Lord Ellenborough directed the jury to presume that it had been duly protested. See also Taylor v. Jones, 2 Campb. 105. Wood v. Brown, 1 Stark. 217. Proof of a letter from the drawer and indorser of an accommodation bill, that the bill will be satisfied be person aware consequences of a notice may be waived, or other wise done away. or to "see it paid "," or an acknowledgment that 7thly. How the "it must be paid," or a promise that "he will neglect to give set the matter to rights "", made by the insisting on the want of notice, after he was of the laches amounts, to a waiver of the consequence of the laches of the holder, and admits his right of action. So where an indorsee three months after a bill became due, demanded payment of the indorser, who first promised to pay it if he would call fore the next term, supersedes the necessity of proving the dishonour of the bill and notice. 'Hopes v. Alder, 6 East. 16. Action against drawer to whom no notice of non-payment had been given. It was proved that upon a meeting sometime after, but before the action brought between the plaintiff and defendant, the latter said "I will see it paid." It was arged for the plaintiff, that this subsequent promise for which there was certainly an equitable consideration, subjected the defendant to hability. This was admitted by the defendant's counsel, and Lord Kenyon, C. J. said, "This subsequent promise was decisive." Rogers v. Stephens, 2 T. R. 713. In an action against the drawer of a foreign bill, an objection was taken that there was no protest, but it appearing that the defendant had no effects in the hands of the drawees when the bills were drawn, or afterwards, and that on being pressed for payment by the plaintiff's agent after the bill was dishonoured, he had said “it must be paid." Lord Kenyon thought a protest or notice unnecessary, and directed the jury to find for the plaintiff, which they did. A rule was afterwards granted to shew cause why there should not be a new trial, and it was stated then, and upon shewing cause that the defendant had really been prejudiced by want of notice to the amount of the bill, that he had advanced money to one Calvert to the amount before the bill was drawn; that Calvert desired him to draw on the drawees as Calvert's agents; that he did so on a supposition that Calvert had effects in their hands; that he afterwards settled with Calvert, and upon a reliance that the bill was paid, delivered him up effects to more than the value of the bill, and that Calvert was since insolvent; that the defendant was prepared with evidence to this effect, but that Lord Kenyon delivered it as his opinion, that it did not make a protest or notice necessary. Lord Kenyou did not recollect that this evidence was offered, but he and all the court thought it answered by the defendant's admission that "the bill must be paid," because that was an admission that the plaintiff had a right to resort to him upon the bill, and that he had received no damage by the want of notice, and was a promise to pay. Anson v. Bailey, Bul. N. P. 276. The indorsee of a note presented it for payment, but the maker pretended that the payee had promised not to indorse it over without acquainting him, and so put off the indorsee from time to time for three weeks; at the end of that pe riod the indorsee wrote twice to the payee, stating what he had done, and the maker's excuse; the payee answered, that" when he came to town he would set the matter right;" and upon an action by the indorser against the payee, the jury found for the plaintiff, though the maker became bankrupt before the second letter was written, and though he continued solvent for three weeks after the note was due. See also Wilkes v. Jackes, Peake, 202. 7thly. How the consequences of a neglect to give notice may be waived, or other wise done away. again with the account, and afterwards said that he had not had regular notice, but as the debt wa justly due he would pay it, it was held that the first conversation being an absolute promise to pay the bill, was primâ facie an admission that the bill had been presented to the acceptor for payment in due time, and had been dishonoured, and that due notice had been given of it to the indorser, and superseded the necessity of other proof to satisfy those averments in the declaration, and that the second conversation only limited the inference from the former, so far as the want of regular notice of the dishonour to the defendant went, which objection he waived'. So where the drawer of a foreign bill, upon being applied to for payment, said, "my affairs are at this moment deranged, but I shall be glad to pay it as soon as my accounts with my agent are cleared," it was decided that it was unnecessary to prove the protest of the bill'. It seems to have been once considered that a misapprehension of the legal liability would prevent a subsequent promise to pay from being obligatory'; 'Lundie v. Robertson, 7 East. 231.-Gibbon v. Coggon, 2 Campb. 188. ante, 302. 2 Gibbon v. Coggon, 2 Campb. 188. 3 Chatfield v. Paxton and Co. Sittings after Trin. Term, 38 Geo. 3. K. B. MSS. The plaintiff gave a bill to the defendants on Luard 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. Lord 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 consequence of them, and that he paid this money under an idea that he might be compelled to pay it. When the defendants granted this indulgence of two months to Luard and 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. Verdict for the plaintiff £2000 and interest from the time of payment. Erskine and Giles for the plaintiff-Gibbs for the defendants;-See this case observed upon in Bilbie v. Lumley, 2 East. 471. and Williams v. Bartholomew, 1 Bos. & Pul, 326.—In Stevens v. Lynch, 12 East. 38, the court said, this case proceeded on the ground that the party was ignorant of the facts. consequences of a notice may be but from the case of Bilbie v. Lumley and others', it 7thly. How the appears that money paid by one knowing (or having neglect to give the means of such knowledge in his power) all the waived, or othercircumstances, cannot, unless there has been deceit or wise done away. fraud on the part of the holder, be recovered back again on account of such payment having been made under an ignorance of the law, although the party paying expressly declared that he paid without prejudice2; and as an objection made by a drawer or indorser to pay the bill, on the ground of the want of notice, is stricti juris, and frequently does not meet the justice of the case, it may be inferred from this case, and it is indeed now clearly established, that even a mere promise to pay, made after notice of the laches of the holder, would be binding, though the party making it misapprehended the law. And therefore, where the drawer of a bill of exchange, knowing that time had been given by the holder to the acceptor, but apprehending that he was still liable upon the bill in default of the acceptor, three months after it was due, said, "I know I am liable, and if the acceptor does not pay it I will," it was adjudged that he was bound by such promise. And such a promise will dispense with the necessity for a protest of a foreign bill*. A promise to pay made after a declaration filed, not only precludes the party from availing himself of the laches of the holder, but also dispenses with evidence in proof of the allegations in such declarations; and Bilbie v. Lumley, 2 East. 469.—Brisbane v. Dacres, 5 Taunt. 143. Williams . Bartholomew, 1 Bos. & Pul. 326.-Stevens v. Lynch, 12 East. 38. See also Brown v. M'Kinnally, 1Esp. Rep. 279,-Marriot v. Hampton, 2 Esp. Rep. 546.-Cartwright v. Rowley, id. 723. Stevens v. Lynch, 12 East. 38.-2 Campb. 322, S. C. and see Taylor v. Jones, 2 Campb. 105. 4 Gibbon v. Coggon, 2 Campb. 188, 9.-Stevens v. Lynch, 2 Campb. 332, 2.-Greenway v. Hindley, 4 Campb. 52. 'Hopley v. Dufresne, 15 East. 275. Action against indorser of a bill accepted, payable at a banker's. Defence, no regular presentment |