23 Wend. 379 | N.Y. Sup. Ct. | 1840
After advisement, the following opinions were delivered :
The ¡question is, whether an explicit promise by a drawer or endorser of a hill or note, will of itself dispense with the usual direct proof of regular demand and notice. That it will, has been the settled and undisputed law, as understood and acted upon at Westminster Hall for more than a century. The rule was laid down by Raymond, Ch. J. in Haddock v. Bury, Trin. 3. Geo. 2 A. D. 1730, as follows: “If the endorsee has neglected to demand of the drawer in a convenient time a subsequent promise to pay by the endorser, will cure this laches.” M. S. Burnet, J. 7 East, 236, note. Demand of the drawer is spoken of, because at that time it seems to have been held necessary to call on him before the endorser could be charged, which is not the law now. Bayley on Bills, 496, Am. ed. of 1836. The case is cited from Selw. N. P. Chitty 4th ed. 323, thus: “ If an endorsee has neglected to demand of the maker of the note in due time, a subsequent promise to pay by the endorser will cure this laches.” Chit, on Bills, Am. ed. 1839,p. 533, note (to). In the last American edition of Selwyn, (ed. of 1839, p. 56,) this authority is set down, among several others, to prove that “ In cases where, though a debt or duty remains uncancelled, yet the liability to be sued is suspended, either by the intervention of a rule of law, or the provisions of a statute — a subsequent express promise will remove the suspension and restore the liability so as to give a right of action; for it is in the power of any party to waive an advantage which the law has given him.” He adds the case of Hopes v. Alder, 6 East, 16, n. ; Rogers v. *Stephens, 2 T. R. 713, and Lundie v. Robertson, 7 East, 231. [ *382 ] Hopes v. Alder, A. D. 1800 seems to stand distinctly on that ground. The counsel for the plaintiff said there was an equitable consider ationfor the promise ; Gibbs, contra, admitted the promise to be decisive against- him ; and Lord Kenyon repeated the remark. Vid. Fletcher v. Trogatt, 2 Carr. Payne, 569; Standage v. Creighton, 5 id. 406. In short, the force of the promise stands on what is often called in the books, by a latitudinary mode of expression, the consideration of moral obligation ; a phrase which can never be judicially understood in its- broad ethical sense, as it sometimes has been, without subverting the legal notion of a consideration. It means no more than a legal liability suspended or barred in some technical way short of a substantial satisfaction. This appears by the head of Selw. H. P. just cited; but is more fully shown in 21 Am, Jurist, 276, by the cases there cited. So far as it respects the
*For the reasons given, I shall consider the case below under [ *383 ] two general heads:
First, Waiver. Secondly, Presumptive evidence. The meaning of which words I shall explain more fully in the sequel.
First, as to waiver. As we have already, in part seen, a principle which found its way into the English cases at a very early period is, that a promise to pay, or any thing equivalent to that, after the person who would otherwise be entitled to insist on want of demand or notice was aware of the laches, amounted to a waiver of the consequence of the laches, and admitted the right of action. Such was the case of Anson and Bailey, A. D. 1748, reported in Bull. N. P. 5th Loud. ed. 276. There the endorser, in the country, writing to the indorsee of the note in town, who had apprized him of the maker’s neglect to pay it, said, “ When I come to town I will set that matter to rights.” So where, after laches by delaying notice, the party entitled to it promised to pay: Wilmot, J. said, “ by his conduct he has waived the neglect and acquitted the plaintiff.” Whitaker v. Morris, Esp. Dig. 58. A. D. 1756. 1 id. 137, Gould’s ed. of 1811. Chit. on Bills, Am. ed. of 1839, p. 533, note (w) S. C. In Stevens v. Dynch, tried before Lord Ellenborough, C. J. 2 Camp. 332, A. D. 1809, and afterwards considered at the bar, 12 East, 38, the holder had twice given time to the acceptor, thus completely discharging the endorser; but the latter promising to pay with full knowledge of the laches, was held liable. All the cases on this point are uniform as to the principle. Hopley v. Dufresne, 15 East, 275. Rogers v. Stevens, 2 T. R. 713. Potter v. Rayworth, 13 East, 417. Borradaile v. Lowe, 4 Taunt. 93. Leaf v. Gibbs, 4 Carr. &
The cases differ only in the mode of working and applying the principle ; and this difference exhibits itself in two ways: 1. As to the pleadings and evidence. In respect to these, the decided balance, though certainly not tho uniform course of authority, seems to be, that, -where there is a waiver, you may. in declaring, aver presentment, acceptance, or refusal to accept or pay, protest when necessary, and notice, precisely as if these steps had been literally taken. Then proving part payment, or a promise, or other equivalent act of waiver, either before or after suit brought, with knowledge of the laches, will satisfy all or any of these averments. Smith’s Commercial Law, 149, note (m). Williams v. Matthews, 3 Co wen, 252, 262. Norton v. Lewis, 2 Conn. R. 478, 480, 481. Taunton Bank v. Richardson, 5 Pick. 436. Kennon v. McRea, 7 Porter, 175, 185, 186. In Cory v. Scott, 3 Barn. & Ald. 619, 624, 625, Bayley and Holroyd, justices, differed on the question ; and Abbott, Ch. J. seems to have assumed that an excuse for not giving notice, was ad idem with actual notice. Firth v. Thrush, 8 Barn. & Cress. 387, countenances the same idea. That the act of waiver is equally available, whether done before or after suit brought, was held in Hopley v. Dufresne, 15 East, 275, and Kennon v. McRea, 7 Porter, 175, 185. This seems to involve the proposition that you may [ *385 ] aver *notice, &c. and satisfy it by proving waiver. In Firth v. Thrush, Littledale, J. said, you are to aver the legal effect: and what dispenses with notice, satisfies that averment. 2. The more difficult question, under this head relates to the kind and degree of evidence
It is proper to say, what has already been alluded to incidentally, in respect to a notion formerly advanced by some of the cases, that the defendant sought to be charged by admission or promise, must not only know the fact of laches, but the legal consequence. This notion has long since been exploded. Bilbie v. Lumley, 2 East, 469. Pate v. M’ Clure, 4 Rand. 171. Stevens v. Lynch, 12 East, 38. Chit, on Bills, 535, a, Am. ed. of 1839, and cases there cited. Kennon v. M’Rea, 7 Porter, 184.
So much I have thought it necessary to say under a head [ *387 ] which assumes that Tebbetts, the defendant below, had *been in fact discharged by the plaintiff’s laches. Admitting this fact to have appeared, I am of opinion, notwithstanding, that the court below did right in refusing to nonsuit the plaintiff; that they were warranted, by a weight of authority not to be resisted, in submitting the question to the jury whether Tebbetts knew of the laches. We must intend they did so, for no exception is taken to the charge. The jury had a right to infer that the defendant had waived all objection, with knowledge.
In speaking of this head, I shall hereafter, for the sake of brevity, call it tdaiver ; and I must again repeat that it is entirely distinct from, and founded on a state of facts opposed to another ground, on which I think the judgment of the court below still more clearly sustainable than on that of waiver. I mean the ground that, where no laches appears in proof, the promise or other equivalent act of the drawer or endorser, shall be received as prima facie evidence, that there was no laches; that presentment, protest, notice, &c. were in fact made or given, the promise, &e. thus coming in place of the ordinary direct proof of those facts. It is necessary to adhere with great strictness to the distinction, inasmuch as all the treatises I have seen on bills of exchange and notes, confound waiver with the opposite ground. They state both these grounds together, as if they belonged to the same head, often citing cases in respect to one ground which belonged to the other ; thus introducing a degree of confusion into this branch of the law to which the decisions give no countenance whatever; nay, to which they stand directly opposed. And this brings me to the second general head — presumptive evidence.
Secondly. There was, in fact, no direct evidence in the court below, whether any demand had been made or notice given to Tebbetts or not. Under this state of things, I regard it as perfectly well settled that one of two courses was open to the plaintiff, in-order to satisfy the-jury-that demand
First. As to English authority. In an action upon a promissory note by the endorsee against the endorser, it was proved that the defendant had- paid part of the money ; and Chief Justice Lee held that sufficient, to dispense with the proving of a demand upon the maker of the note. Vaughan v. Fuller, 2 Str. 1246, A. D. 1746. Hoford v. Wilson, 1 Taunt. 12, S. P. In Rogers v. Stevens, 2 T. R. 713, A. D. 1788, which was an action against the drawer of a foreign bill of exchange, the defendant insisted that it had not been protested for non-acceptance and notice given. This was sought to be answered in two ways ; first, by showing want of funds in the hands of the drawees, and secondly, that after the laches had happened, upon the plaintiff’s agent representing to the defendant that the bill had been dishonoured, and pressing him for payment, he said " it must he paid.” The court held that either answer was sufficient. As to the latter, Lord Kenyon said, “ This appears to me to be an admission that the holder had a right to resort to him on the bill.” Ashurst, J. said, “ The defendant’s subsequent acknowledgment4 that the bill must be paid,’ amounts in point of law to a promise that it shall be paid, and does away the necessity of considering the question relative to notice.” Grose, J. said it “ is an admission by the drawer that he had no effects in the hands of the drawees, and that he sustained no damage for want of notice that the bill had not been paid.” In Wikes v. Jacks, * Peake's N. P. Cas. 202, A. D. 1793, [ *389 ] it was held, that though wants of funds in the hands of the drawees, would excuse notice to the drawer, yet it would not- so' operate in respect to the endorser. But on proving a letter of the endorser, acknowledging the debt and promising to pay it, a verdict was taken against him. This case was tried before Lord Kenyon, Ch. J.
In 1806, the ground of the cases, both those which go on waiver and- those which go on presumptive' evidence, came to be considered by the K. B. in Lundie v. Robertson, a case reported both, by East and Smith, cotemporary
Again, in Hicks v. Beaufort, 4 Bing. New Cases, 229, A. D. 1838, the principle of presumptive evidence, as laid down in Lundie v. Robertson, came under review, not as being questionable in its existence, for that was fully conceded; but counsel contended, on the authority of a case in the exchequer. Pickin v. Graham, 1 Crompt. Mee. 725, 3 Tyrwh. 923, S. C. that, to dispense with notice, the promise must be unconditional. Tindal, C. J. said : “ The cases go on this point only: that if, after the dishonour of a bill, the drawer distinctly promise to pay, that is evidence from which it may be inferred he has received notice of the dishonour, because men are not prone to make admissions against themselves ; and therefore when the drawer promises to pay, it is to be presumed he does so because the acceptor has refused. Lundie v. Robertson goes no farther than that, There the defendant said that he had not had regular notice, but, as the debt was justly due, he would pay it; and the jury having presumed from those expressions, that he must have received notice of dishonor, the court refused to interfere.” Vaughan, J. and Bosanquet, J. expressly concurred in the principle as Tindal, C. J. The court of exchequer fully recognized and acted on the same prineiple in Croxen v. Worthen, 1 Jurist ed. of Engl. Rep. 259, A. D. 1839. A promise to pay by instalments was there held sufficient ground for presuming presentment even against a direct issue upon the question under the new English rules. The court relied expressly on Lundie v. Robertson.
In the whole score of cases, and more, ranging from 1730 to 1839, no trace of the rule appears, that, in order to make the promise available as an admission, it is necessary to show that the drawer or endorser was aware of laches which the promise was intended to cure. A remedy for laches is not the object. To require knowledge of laches would render ev- [ *393 ] ery case going on the principle of presumptive ^evidence a legal solecism. The ground is that the promise shall be received, not as binding, per se, but as evidence that there were no laches: in other words, that regular presentment had been made, that it was followed by non-acceptance or non-payment, of which notice had been duly given. Otherwise should the man promise ? Will any one do so without knowing that he is liable ? Common experience shows that he will not. The English ca. ses, are, therefore in exact accordance with the principles of presumptive evidence. These principles are but another name for such connections be tween moral cases and effects, as are evinced by general observation.
The authorities,.as will have been seen, when once the promise is proved, infer from it every diversity of facts which may be necessary to charge the drawer or endorser, according to the nature of the particular case. Pre ?entment for payment, and notice of non-payment are familiar instances ap
That this presumptive evidence may be overcome, one may easily conceive. Stdbit prcesumptio clonec probetur in contrarium. Suppose it sought to infer presentment or want of effects; but the defendant calls the drawee or maker who positively disproves the fact in question ; the plaintiff must fail, unless he can sustain his action under the head of waiver. Thus in Lawrence v. Ralston, 3 Bibb, 102, 104, Owsley, J. admitted that a promise by the endorser to pay was, ¡orima facie, an implied admission of due notice to charge him ; but the presumption thus arising in that case being rebutted, and Ralston being but an accommodation endorser, the action was held to fail of any ground. So, in * Croxen v. Worthen, before [*394 ] cited, where presentment at the banker’s was inferred from a promise to pay by instalments, Parke, B. said the defendant might have called the banker to negative the inference.
I have already adverted to an apparent absurdity in our books on bills and notes, in connecting with the head of presumptive evidence, certain cases which require that before a drawer or endorser shall be charged by his promise or admission, it must appear that he was aware of laches. All our late writers, and we may suppose the same thing of the older ones, are in the habit of annexing those cases as qualifications both to the rule of waiver and of presumptive evidence ; whereas they never had, in the English cases, any practical connection with the latter; nor -could they have without subverting the rule. And we shall see hereafter in respect to some of our own dicta, that when they came to be brought in under this head, they were understood to strike out of existence a uniform series of cases more than a century in their progress. I have looked into all the English decisions which I can find cited any where as apparently working such’a consequence. The first is Blesard v. Hirst, 5 Burr. 2670, A. D. 1770. In that case there was, I admit, a clear and absolute promise by the endorsers, the defendants, to pay the bill to their endorsees. From that, a notice of non-acceptance might have been inferred; but Mr. Burrow, the reporter, states the negative of that fact as distinctly appearing. After saying the bill was refused acceptance, he adds, “ the plaintiff kept it in his hands three weeks without giving notice.” The presumption which would otherwise have arisen being thus rebutted, the promise was not even alluded to, either by the counsel, the court, or the reporter in his marginal note. The
Secondly. I now come in the order I proposed, to consider the state of this question of presumptive evidence as it stands on the cases in this court. I have already noticed those cases so far as I mean to do under the head of waiver. There they agree in the general principle with the English and American cases, differing somewhat in the mode of applying the principle; and not being entirely uniform among themselves, as to the kind or degree of proof necessary to show knowledge. Those cases are numerous. I have examined them and find laches established in all. They are, therefore, cases merely on the question of waiver. They have nothing to do with the head of presumptive evidence.
In 1808, Pierson v. Hooker, 3 Johns. R. 68, came before this court. There the defendant, the drawer of a bill, promising the holder to pay it, the judge at nisi prius held that this superseded the necessity' for proving demand and notice. On motion for a new trial, the case went off on another point; but on the question whether the promise dispensed with the necessity for direct proof of demand and notice, Kent, Chief Justice, remarked that, “ if this were now to be decided, it would perhaps be sufficient to refer to the case of Lundie v. Robertson, 7 East, 231, in which the very point arose and the court of king’s bench held that ’where the [ *397 ] endorser had made a subsequent promise to pay, a previous demand on the drawer and due notice to the endorser were to be presumed, and need not be proved.”
In 1819, Trimble v. Thorne, 16 Johns. R. 152, was decided; a case which is now supposed to tie up the whole doctrine to mere waiver ; and at one dash strike out of existence a rule founded in the plainest principles of presumptive evidence, and fortified by a uniform line of authorities extending a hundred years. The case itself is no way incompatible with any of those authorities. The action was by the plaintiff as endorsee of a note against the defendant as endorser. And the case starts by stating, as a fact distinctly appearing at the trial, that regular notice of nonpayment had not been given to the defendant. But the defendant subsequently promised to pay, without its being shown that he was aware of the laches. On such a case, the only question which could be raised for decision was, whether the promise should operate as a waiver; and the court held that it should not, without more proof than was made in the cause that the defendant knew of the laches. 1 admit the question was discussed by counsel, whether a pro
One of these, Taylor v. Jones, was before Mr. Justice Bayley, who had written a treatise on bills. All this too, *under the [ *399 ] same doctrine of notices by the post, which may never in fact reach the defendant, as prevails here. It is possible I admit, that he may promise, on the assumption that notice has been sent, when it has not in fact 5 and when therefore he has not received it. I can only say upon actual experience, that I never have found among my own clients, men who were at all prompt to do so. The only instances I now remember, are of refusal to promise ; and one occurs to me of actual exemption from payment of a nonpromisor, on the ground that notice had not been sent. It is still more possible, nay it is highly probable that a drawer or endorser may have no direct knowledge of presentment and refusal to pay. But it is not consistent with the general spirit of mercantile vigilance, that he should omit to inquire, and reach a state of moral conviction about as safe to act upon as his own personal observation. Men would not be hasty to outrun that conviction. The course of inquiry is open to them. They are on the alert; and can generally ascertain the truth with great precision. If not entirely satisfied, they can refuse to promise, and laches exempts them. 1'f they find there has been laches, they then take their choice whether they will waive it. But at worst, if a man, knowing that he in conscience owes the money, should indeed mistake, it would be no serious mischief to the interests of substantial justice. He would but forfeit a technical defence, treated by all the books as strieti juris. Men make mistaken concessions in other cases; but that is no argument against their admissibility in evidence. If a man makes an admission contrary to the fact, he incurs the hazard of setting the matter right by other evidence. If he fail, he must abide the consequences. So far, then, I must say with deference, my mind is not convinced that the dicta of the learned chief justice in Trimble v. Thorne, speak forth the common law of England. That, I am bound by the constitution to follow, till I find it changed by the legislature, or overturned by authority.
While saying so much, I am entirely aware that the dicta in Trimble v. Thorne were restated and recognized by the recent case of Jones v. Savage, 6 Wendell, 658, A. D. *1831. That was an action [ *400 ] by the endorsee against the endorser of a foreign bill of exchange ; and to raise the inference of presentment, non-payment and notice, the plaintiff’s attorney proved that after suit brought, the defendant asked and obtained time with a view to negotiate; he again desired delay; and finally, on being requested to give a cognovit, said if he did not pay in a short time, he would make an arrangement with the witness which should be satisfactory. The defendant had also, on his application for the benefit of the, insolvent act, inventoried and sworn to the debt as- due to the plaintiffs. On
Thirdly. As to the American cases in general. I have by no means overlooked the decision or reasoning of the court in Otis v. Hussey, 3 New Hamp. R. 346, cited by the counsel for the plaintiff in error which I concede fully repudiates the doctrine that regular demand or notice may be inferred, as I have insisted it may he. Richardson, Ch. J. remarks, that, “ in an old commercial country like England, where a great portion of the business has long been transacted by means of negotiable paper, and where most of those who deal in such paper must be presumed to be acquainted with the law in relation to it, it may be proper to leave it to the jury to infer a demand of the maker from a promise of the endorser to pay. But in this state, (New Hampshire,) where negotiable paper has a very limited circulation, there is no ground on which such an inference from that fact can rest.” He adds, that he, therefore, considers the rule which he understands to be adopted in New-York, as the true one. Otis v. Hussey, was decided in 1826, and I have already endeavored to show that no such rule as the learned chief justice supposes, had been at that time adopted in this state by direct adjudication ; none since, except in Jones v. Savage, which must stand or fall with the dicta in Trimble v. Thorne, for it takes no ground beyond them,. I have already examined the reasons put forward by those dicta, and endeavored to show that, in *this state we stand [ *403 ] in the same case with England as to the admissibility of the presumption. Unele? the increasing' prevalence of the credit system, ever since
But, moreover, a decisive answer to the case cited is, that the mass of American authority against it is as overwhelming as the British. Walker v. Laverty, 6 Munf. 487, came, in 1826, before the supreme court of appeals of Virginia, a state certainly not more commercial than New-York. The action was by the payees against the defendant as drawer of an inland bill of exchange, averring presentment for payment, refusal to pay, and protest for non-payment, with notice of the protest to the defendant. On the trial, the defendant insisting that the notice must be proved, and the plaintiff being unable to produce direct proof, he introduced a witness who testified that he applied to the defendant for payment of the bill, who acknowledged that the debt was a just one, and said he would pay it ; and nothing was said in that conversation as to his receiving notice or not. The defendant’s counsel insisted that the promise must go for nothing unless the plaintiff [ *404 ] proved further, *that the defendant knew there was laches. This the court denied ; and instructed the jury to find for the plaintiff. On appeal, the decision was approved. The court below stated that the acknowledgment was a waiver of notice. But the court of appeals did not mean to adopt this inaccuracy of expression, though they gave no reasons. The question coming again before them in 1821, Pate v. M’ Clure, 4 Rand. 164, 171, 172, they reconsidered the point, and took occasion to explain the ground of decision in the former case. In order to this, they cited and approved several of the English authorities, which take the ground that, from such a promise, notice is, prima facie, to be presumed. Among others, the court regard the words of Lord Ellenborough in Gibbon v. Coggon, as very strong to the point, reciting the extract which I have already given. The same point has been, I think, substantially held in Kentucky. Mills v. Rouse, 2 Litt. 203, A. D. 1822 ; and vide Lawrence v. Ralston, 3 Bibb, 102, 104, per Owsley, J. A. D. 1813, So in Massachusetts. Martin v. Ingersoll, 8
So much for cases nearly cotemporary with Trimble v. Thorne. But, in 1829, this case, as to its dicta concerning presumptive evidence, was fully considered by the supreme court of errors in Connecticut, and unhesitatingly repudiated. * Breed v. Hillhouse, 7 Conn. Rep. 523. [ *405 ] That was an action against the guarantor of a promissory note, who claimed that demand of payment and notice should be sworn as if he were an ordinary endorser. No direct testimony of this was given; but only proof that the defendant promised to pay the note. The judge at N. P. held this to be presumptive evidence of demand and notice. On motion or a new trial, the decision was sustained on a review of the leading English cases connected with the dictum,of Kent, chief justice, in Pierson v. Hooker. Hosmer, chief justice, delivered the opinion of the court. After citing the cases in support of the decision at N. P. he adds : “ The case of Trimble v. Thorne, 16 Johns. R. 152, is opposed to these decisions; but so far as my knowledge extends, it stands alone and unsupported. It is a presumption of reason sustained by the common experience of mankind, that a man will not pay a debt which is not due, nor acknowledge the existence of a debt to which he is not liable.” The learned Ch. J. also in the same case conferred a benefit upon the law by properly distributing several of the decisions between the two distinct heads waiver and presumptive evidence. The court were unanimous in the views taken by him, though I concede it was not essential to the case that they should have been presented ; for the court admitted that the guarantor was not-entitled to require a demand or notice. The only criticism to which that case is open lies in its treating Trimble v. Thorne as a direct decison on the point of presumptive evidence. As I said before, that case does not pretend that the endorser had been regularly charged. It admits the contrary, and takes ground that the defendant promised in ignorance of that fact. I must be permitted to say also, with the greatest deference, that the late learned chief justice of this court fell into the same misapprehension when he came to decide Jones v. Savage. The doctrine of Trimble v. Thorne, though out of the case, was announced with
No attempt has, that I find, ever been made to resist the introduction of the promise, on the ground that, as circumstantial proof, it is inferior in degree to direct proof. A distinction of that kind was mentioned in Williams v. The East India Company, 3 East, 193, 201; but does not appear to be completely established. Vid. 1 Phil. Ev. by Cowen & Hill, Am. ed. of 1839, p. 219, and note 417, compared with the 8th Lond. ed. of Phil. & Amos, p. 439. The case cited appears to he treated, in Cowen & Hill’s edition, as introducing the distinction ; but in the last that idea is noticed as the result of misapprehension. The learned writer here considers the question as having arisen rather on the measure of proof than the substitution of secondary for primary evidence. Mr. Starkie, in his last edition, also takes the latter view of that case. Stark. Ev. Am. ed. of 1837, p. 441; though he took the opposite view in his former editions. Vid. 1 Stark. Ev. Am. ed. of 1828, p. 514, § 80, cited in note 322 of Cowen & Hill’s Phil, as 3 Stark. 515, i. e. 3d part with the marginal paging. The manner in which this question has been treated by several of the American courts may be seen in Cowen & Hill’s Phil, note 325, p. 423, and note 417, p. 544. It is very nice, and need not now be pursued; for the cases going most strongly to establish the secondary character of presumptive evidence, and rejecting it on that ground, generally, if not always have requir- [ *407 ] ed *that the existence of the direct and higher evidence should appear affirmatively and clearly to be within reach of the party, before the distinction can be applied. The existence of direct evidence appearing, a suspicion is many times raised against the presumptive evidence so strong as to destroy its effect with a jury, if not to shut it out as incompetent. The dispute between quality and measure is, perhaps, therefore, rather one of words than substance. The direct evidence of the usual steps to charge a drawer or endorser, is often lost. The notary or other witnesses
In any and every view which I have been able to take of the decision by the learned court which tried and re-examined this case, I cannot resist the conclusion that they are entirely sustained by the law of the land.
A technical objection has been raised by the plaintiff in error. By some strange clerical mistake, either in the original record, or transcript, or error books, it appears by the latter as if the placita in the superior court was of August term, 1833, while the day of the promise laid in the declaration is August 1st, 1837, four years after suit brought. The declaration, however, contains the general counts only, and counsel seem aware of the weakness under which the objection labors in point of principle, by suggesting that the copy of the bill of exchange served with the declaration bears date in' March, 1837. Could he import that bill into the declaration I admit the judgment could not be sustained without amendment; for, where the cause of action appears on the face of the record to have arisen after suit brought, the objection is fatal even on error. Here, however, it falls short of that principle ; for the day is entirely immaterial. The bill of exchange cannot
I know certain cases in this court have held that, though the day laid in the declaration be so totally immaterial, that it may be disregarded in proof, yet it must, in all cases, appear on the record to have preceded the commencement of the suit. Cheetham v. Lewis, 3 Johns. Rep. 42. There the action was for a libel, and the defendant demurred generally, and the demurrer was sustained, because the day of publication was laid after that contained in the memorandum. I confess that, from the strong language of the court, who pronounced the mistake to be fatal, even in arrest or on error, I had since regarded the decision of the cause of action as making the day so far a matter of substance in all cases, that, relatively to the placita, of the inferior courts, and the memorandum of this, it must always appear to have preceded the day mentioned in them. I infer that Waring v. Yates, 10 Johns. 119, went on that ground. It was an action of assumpsit in which it seems the plaintiff relied on the general counts, though that is not clearly stated. The court there iterate the rule in Cheetham v. Lewis, [ *410 ] and cite *that case alone to sustain the demurrer. It must in any
But, although a motion to amend might be necessary, and clearly would, were the day material as it was in Thomas v. Leonard, I am of opinion that our earlier cases cannot be sustained in their application to a case where the day is entirely immaterial. In all the authorities referred to by the court, on the occasion of deciding Cheetham v. Lewis, the day laid in the declaration was material; in the first, Venables v. Daffe, Carth. 113, as being descriptive of a record. The other two, (1 Doug. 61, and 7 T. R. 470,) were cases *of declarations on notes, averring them to [ *411 ] have fallen due after the day mentioned in the memorandum. There are some old English cases which go the whole length of Cheetham v. Lewis, but they were cited, reconsidered and overruled in the late case of Arnold v. Arnold, 3 Bing. New Cas. 81, which is directly in point for the defendant in error. On a declaration for money lent laying the day after the suit had been brought, the court refused to arrest the judgment, confining the rule to those cases only where the day does not appear to bo wholly immaterial. It is only by such a limitation, that the rue can be made to harmonize either with principle or authority.
I am of opinion, on all the points taken, that the judgment of the court below should be affirmed.
After looking into most of the cases on this question, I came, at first, to the conclusion, though very reluctantly, that the judgment must be reversed. But the remarks of my brother, Cowen, upon the cases in this court, and the distinction which he has so fully illustrated between this case, and those where it appeared affirmatively, that the endorser had not been duly charged, have satisfied my mind that we are at liberty to consider the question upon principle, and the weight of authority elsewhere, as well as in this state.
But while I concur in the affirmance of the judgment, I am not prepared to go so far as some of the English cases have gone, in charging an endorser or drawer on a promise to pay ; and I shall, therefore, state very briefly, and without reviewing the cases, the grounds of my opinion.
When the fact appears that there has been laches on the part of the holder, a subsequent promise by the endorser to pay the bill, will not render him liable, unless it also appears that the promise was made with full knowledge of the fact that he had been discharged by the laches of the holder. But on proof of a promise by the endorser, with knowledge that he was not liable on the bill, the holder may recover: not, 'however, on the [ *412 ] ground that the endorser is bound by *the promise as matter of contract, for it wants consideration; but on the ground that the promise amounts to a waiver of the objection that the proper stop's had not been taken to charge the endorser. If this were a new question, I should feel great difficulty in subscribing to this application of the doctrine of waiver. The undertaking of a drawer or endorser is conditional. He agrees that he will pay if the bill is dishonored, and he has due notice of that fact. If the bill is not presented and notice given at the proper time, the drawer or endorser is discharged. His obligation is at an end. Before the bill comes to maturity, he may dispense with the necessity of making a demand and giving notice ; but 1 do not perceive how he can do so afterwards. Before the proper time arrives, the necessity for doing an act may be waived; but I do not see how that can be done after the time for, performance has gone by. A man may sometimes waive the assertion of a forfeiture ; but cases belonging to that class depend on peculiar principles, and are nob I think, applicable to the case of a drawer or endorser, who has not been duly charged. As an original question, I should be of opinion, that whenever it plainly appears that there has been laches on the part of the holder, the drawer or endorser is discharged, and a subsequent promise, though made with full knowledge, cannot aid the case. But the rule has been settled otherwise, and whenever it becomes necessary to apply it, I shall feel myself bound by the weight of authority.
In this case, the question of waiver does not arise, for there was no evidence tending to show affirmatively that there had been laches on the part of the holder. The question, therefore, is not concerning the effect of a sub
This was not, however, a presumption of law, to be declared by the court ; but a presumption of fact, which belonged to the jury. Hicks v. Beaufort, 4 Bing. N. C. 229. If the defendant had excepted to the instruction by the judge, that “ upon the evidence as given the plaintiff was entitled to recover,” the judgment could not be maintained : but the exception taken only goes to the refusal to nonsuit the plaintiff, and there the judge was clearly right, so far as relates to the question of notice.
But in relation to the due presentment of the check at the bank for payment, a fact which the plaintiff was also bound to establish, the ease is not so free from difficulty. Although an unqualified promise by the endorser to pay the bill, is presumptive of notice, it has little or no tendency to prove a demand ; and on this point I am not prepared to go so far as some of the English cases have'gone. Whether the bill has been presented for payment or not, is a question upon which, in the ordinary course of business, the drawer or endorser has no personal knowledge. lie usually acts upon information communicated by the holder. On receiving notice of the dishonor of the bill, he would be likely to believe and act upon the information ; and he might either pay, or promise to pay, although no demand had in fact been made. I do n:-t see, therefore, how the promise, although it has some tendency to prove notice, can be regarded *as laying a sufficient founda- [ *414 ] tion for presuming a demand. It proves little, if any thing, more than that the drawer or endorser believed the bill had been dishonored, because he had been so informed by the holder.
But here there was something more than a promise to pay. When called on by the witness, the defendant said he knew the check had been dishonored,
As there was evidence from which the jury would have been authorized to find both presentment and notice at the proper time, the motion for a non-suit was properly over-ruled, and the judgment should be affirmed.
Judgment affirmed.