with a request that the bill be charged separately,50 would afford presumptive evidence of demand and notice.

§ 1160. The courts have gone so far in admitting circumstances to go to the jury as evidence of demand and notice, that Professor Parsons very justly observes:51 "Some of the cases have almost gone so far that the only safe course for an indorser or drawer, when payment is demanded of him, would be expressly to deny both presentment and notice. Thus, for instance, a verdict against the drawer of a bill was sustained where the only evidence of notice was, that the defendant, two days after maturity, sent a person to the plaintiff to say that he had been defrauded of the bill and should defend any action upon it." 52 So, objecting to payment upon any other grounds than laches. in respect to presentment and notice;53 and so failure to produce a letter containing, as alleged, notice of dishonor, and the production of which was called for.54 So an answer by the drawer on being informed of nonpayment by the acceptor that he would see the acceptor about it.55

§ 1161. Ignorance of material facts affecting promise. In Massachusetts, it has been held that if the indorser promises to pay, without knowledge of material facts affecting his liability, as, for instance, that an agreement had been made by the holder by which he was discharged, he will not be bound, although he knew of the laches respecting demand and notice.56 This view

50. Bank of United States v. Lyman, 20 Vt. 666. 51. 1 Parsons on Notes and Bills, 616.

52. Wilkins v. Jadis, 1 Moody & R. 41; Glidden v. Chamberline, 167 Mass. 486, 46 N. E. 103, 57 Am. St. Rep. 479, citing text, court said: "Evidence of circumstances or of conversations between the holder and the second indorser of a promissory note after its maturity, which are equivocal in their character, and which do not impart a clear admission of liability or amount to a distinct promise to pay, and are consistent with the view that the indorser was merely seeking to avoid or postpone a suit against himself, is not sufficient, in an action on the note, either to prove actual notice to him of the dishonor of the note, or a waiver of such notice; and a subsequent agreement by him to pay the holder a certain rate of interest so long as the note shall remain unpaid has no greater effect."

53. Curlewis v. Corfield, 1 Q. B. 814, 1 Gale & D. 489.

54. Roberts v. Bradshaw, 1 Stark. 28.

55. Metcalf v. Richardson, 73 Eng. C. L. 1010; Edwards on Bills, 652, 653. 56. Low v. Howard, 10 Cush. 159. See Arnold v. Dresser, 8 Allen, 435, and ante, § 1149.

depends upon the principles which regulate the liabilities of all sureties, and is sustainable without reference to the peculiar doctrines respecting demand and notice. And it concurs with the English doctrine on the subject.57

SECTION IV.

WHAT AMOUNTS TO AN ACKNOWLEDGMENT OR PROMISE TO PAY.

58

§ 1162. The burden of proof is upon the plaintiff to show clearly and distinctly the acknowledgment of liability and promise to pay the bill or note.5 But it matters not what particular phrase may be used, so that it amounts to such acknowledgment or promise. Where the indorser of a note said to the plaintiff's agent, who called on him and inquired what he was going to do, "that in a few days he would see the agent and arrange it," the United States Supreme Court said: "This was an unconditional promise to pay the note, which no one could misunderstand, and which he could not repudiate at any subsequent period." 59

So where the drawer said he would see the bill paid; and where the drawer said, on being informed of the dishonor of the bill, "it must be paid;" 61 but where an indorser, on being asked what would be done with the note, replied that "it will be paid," it was thought that "from the general tenor of his conversation, it could not be inferred that it was his intention, knowing of his discharge, to waive his defense, and promise to pay the note, or see it paid at all events," and that it might have been "a mere assertion of his expectation that it would be paid by the promisor.'

62

So it was considered sufficient where the drawer promised to pay when it was in his power; 63 and where the indorser said. he would pay as soon as he could, but he doubted when that would be; so a promise to pay in a few days with a request for

64

57. Stevens v. Lynch, 12 East, 38, 2 Campb. 332. See Story on Bills, § 320. 58. Creamer v. Perry, 17 Pick. 332; Porter v. Thom, 30 App. Div. 363, 5l N. Y. Supp. 974, citing text.

59. Sigerson v. Mathews, 20 How. 496.

60. Hopes v. Alder, 6 East, 16.

61. Rogers v. Stephens, 2 T. R. 713. 62. Creamer v. Perry, 17 Pick. 332. 63. Donaldson v. Means, 4 Dall. 109. 64. Rogers v. Hackett, 1 Fost. 100.

65

66

67

delay; a promise to arrange with the drawee so that the draft should be paid; a promise to pay if the note could not be collected of the maker by suit; an acknowledgment by the drawer, with a promise to send funds with which to take up the bill;68 a promise by the indorser that he would set the matter to rights, when he returned;69 a promise to pay in a few months;70 or by instalments on short time."

71

§ 1163. There must be an absolute promise to operate a waiver of laches.— If the remark of the party do not amount to a promise, or is a conditional promise unaccepted, it will not suffice as a waiver of absence of due demand or notice.

Thus, where the indorser said, on being arrested, it was true the note had his name on it, but he had security, though he wished for time to pay it, it was held insufficient. So where he said he would rather pay the note than be sued ;72 or if I am bound to pay it, I will;73 or that he would see what he could do, and endeavor to provide effects; or where the indorser remarked to a third party, talking generally, that he would take care of the bill, or see it paid;75 so a reply that the indorser knew of no defense is not a promise;76 nor is any equivocal answer."

74

"The promise must be unequivocal, and amount to an admission of the right of the holder; or the act done must be of a nature clearly importing a like admission of the right. If it be defective in either respect, or if it be a conditional offer of payment unaccepted, then, and in such a case, the holder has no right to insist upon it as a waiver. So if the promise be qualified, it must be received with its qualification, and cannot be insisted upon as an absolute waiver." 78

65. Hopkins v. Liswell, 12 Mass. 52.

66. Bryam v. Hunter, 36 Me. 207. See Moyer's Appeal, 87 Pa. St. 129. 67. Lane v. Stewart, 20 Me. 98.

68. Read v. Wilkinson, 2 Wash. C. C. 514.

69. Anson v. Bailey, Boll. N. P. 276.

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

71. Union Bank v. Grimshaw, 15 La. 321; Croxen v. Worthen, 5 M. & W. 5. 72. Keyes v. Fenstermaker, 24 Cal. 329.

73. Dennis v. Morrice, 3 Esp. 158.

74. Prideaux v. Collier, 2 Stark. 57.

75. Miller v. Hackley, 5 Johns. 375; Glidden v. Chamberline, 167 Mass. 486, 46 N. E. 103, 57 Am. St. Rep. 479, citing text.

76. Griffin v. Goff, 12 Johns. 423.

77. Borradaile v. Lowe, 4 Taunt. 93; Sherrod v. Rhodes, 5 Ala. 683.

78. Story on Bills, § 321; Crain v. Colwell, 8 Johns. 384; Kennon v. McRea,

If the promise is conditional, the acceptance of it must be proved in order to make it binding. And where it appeared that the indorser offered to give his own note, which was not accepted, it was held no waiver.79 So an offer to pay part cash and give his note for the balance;80 or to procure a renewal; or to pay in depreciated bank bills,82 or in Confederate States currency."

85

83

§ 1164. Circumstances coupled with qualified promises. But qualified or conditional promises to pay, taken in connection with other circumstances, have been held presumptive evidence that due demand was made and notice given. Edwards says of such a promise: "As an admission, it is evidence for the jury like any other conversation; if the liability of the drawer or indorser be conceded by him, the concession is quite as good evidence of demand and notice as a promise to pay; for as we have said, the promise to pay is deemed an admission of liability- an admission that the bill or note has been presented in time, and that due notice of nonpayment has been given. And there is no reason why the same admission may not be made by a negotiation for time, or by any other act or language that acknowledges the obligation to pay the note or bill." In Tennessee it is held that if the indorser knew he was discharged by want of notice, either an admission of liability or promise to pay would bind him.8

SECTION V.

86

WAIVER BY PART PAYMENT AFTER MATURITY.

§ 1165. In the second place, the part payment of a bill or note after its maturity, by the drawer or indorser, is an acknowledgement of liability, and, therefore, alone and unexplained is pre7 Port. 175; Ross v. Hurd, 71 N. Y. 14; Tardy v. Boyd, 26 Gratt. 637, Christian, J.: "If the conduct or acts of the indorser be equivocal, or the language used be of a qualified or uncertain nature, the indorsee will not be held responsible." Isbell & Co. v. Lewis & Co., 98 Ala. 550, 13 So. 335.

79. Sice v. Cunningham, 1 Cow. 397; 80. Barkalow v. Johnson, 1 Harr. 397. 437.

Agan v. McManus, 11 Johns. 180.
But see Dixon v. Elliott, 5 Car. & P.

81. Laporte v. Landry, 17 Mart. 359.
82. Newberry v. Trowbridge, 13 Mich. 637.
83. Tardy v. Boyd, 26 Gratt. 637.

84. Dixon v. Elliott, 5 Car. & P. 437.

85. Edwards on Bills, 655.

86. Bogart v. McClurg, 11 Heisk. 614. VOL. II-13

sumptive evidence that the liability was duly fixed according to law.87 And if it be shown that such part payment was made with knowledge of laches of the holder in respect to demand, protest, or notice, it is settled that it constitutes a waiver of such laches, and binds the party making it absolutely.88 And it is held, in some cases, that a part payment is a distinct concession of liability, and that whenever the drawer acknowledges himself to be liable to payment, the necessity of proving demand and notice is dispensed with, because such acknowledgment carries with it internal evidence that the drawer knew that due diligence had been used by the holder, or even if it had not, that still the drawer confessed that he was under an obligation to pay.89 But it has been held that part payment will not operate as a waiver unless the indorser knew of the insufficiency of the demand or notice.90

§ 1166. It seems to us that part payment after maturity stands upon precisely the same footing as a promise to pay. It is simply the executed act, while the promise is executory. Therefore, it is prima facie evidence that the party was duly charged by demand and notice. If he shows that he was not charged, it is still prima facie evidence that he knew of the holder's laches. But when he shows in rebuttal that he paid the part supposing there was no laches, and that in fact there was, it becomes unavailing, being paid under a mistake of fact, and may be recovered back, negligence not impairing the right of recovery.91

87. In Vaughn v. Fuller, 2 Stra. 1246, Lee, C. J., said that part payment by the indorser made proof of demand upon the maker unnecessary. Holford v. Wilson, 1 Taunt. 12, held that part payment warranted the jury in presuming that due notice had been given the drawer. Whitaker v. Morrison, 1 Fla. 25, held waiver of notice; Chitty on Bills [*500], 564, 565; Brown v. Mechanics & Traders' Bank, 16 App. Div. 207, 44 N. Y. Supp. 645, citing text.

88. Sherer v. Easton Bank, 33 Pa. St. 134; Williams v. Robinson, 13 La. 419; Harvey v. Troupe, 23 Miss. 538; Linthicum v. Caswell, 19 App. Div. 541, 46 N. Y. Supp. 610, citing text.

89. Levy v. Peters, 9 Serg. & R. 125, Tilghman, C. J.; Curtiss v. Martin, 20 Ill. 557; Bank of United States v. Lyman, 20 Vt. 666; Read v. Wilkinson, 2 Wash. C. C. 514; Bibb v. Peyton, 12 Smedes & M. 575; Lane v. Steward, 20 Me. 98. See Whitaker v. Morrison, 1 Fla. 25; 1 Parsons on Notes and Bills, 608, 609. See Story on Bills, § 320.

90. Newberry v. Trowbridge, 13 Mich. 264; Porter v. Thom, 30 App. Div. 363, 51 N. Y. Supp. 974, citing text.

91. See as to negligence not affecting the right to recover money paid under mistake, National Bank of Commerce v. National M. B. Assn., 55 N. Y. 211; Lawrence v. American Nat. Bank, 54 N. Y. 435; post, § 1220; Porter v. Thom, 30 App. Div. 363, 51 N. Y. Supp. 974, citing text.