14 Mo. 59 | Mo. | 1851
delivered the opinion of the court.
From the above statement, it will be seen that the refusal of the court
The statement is full and contains the two instructions prayed for.
From an examination of the facts of this case, and after searching into the authorities, I am satisfied that the instructions ought to have been given. The case Sundie vs. Robertson, 7 East. Rep. 231, and the authorities cited in the* note to it are very satisfactory to me, that the promise made in this case, by the drawer, raises-the'legal presumption that the notice of the dishonor of the bill had been rece'ived:byhi.m; and that said promise to pay made long after said dishonor* dispenses' with the necessity of any proof that said’ drawer had received notice'of the protest for non-payment. ' • ^
There cannot be a doubt that this‘promise to pay dispenses with'the.' proof of notice of protest for non-acceptance and nonpayment, where the facts of non-acceptance and non-payment have cpme to the kno'wl-' edge of the drawer, before making the promise. In this case after such a lapse of time, when the bill of exchange is put into the hands of .the drawer, and he says it is a genuine paper and a just debt, and that he will pay it if he have not already paid it; and if he has'paid he has the receipt, and asks time to look over his papers for the receipt. Again after the lapse of 18 months, he has not found the receipt, still says it is just, and he will pay; and when he is sued and the writ served on him, offers to pay what the face of the bill calls for; I should think this statement of the'facts should dispense with all necessity of proof of regular notice of protest for non-acceptance and non-payment. In this very case the drawer may have had no funds in the hands of the drawee; and consequently made no other calculation than that he would be protested and have the debt to pay himself.
He never says a word about want of regular notice; never utters a word of his surprise about being called on to pay this old dishonored bill of exchange. He must be presumed to have had knowledge from all the facts of this case, of the dishonor of his bill; and I am for holding him to his promise. The court below had no authority to apply, uncalled for, the statute of limitations for the defendant; and I cannot presume the court did.
Upon the whole case, I am satisfied the circuit court erred. Its judgment must therefore be reversed, and this cause remanded, which is accordingly done.