A partial payment of the note by the indorser is equivalent to a new promise to pay,1 if the money to make payment came from by an indorser or a drawer of demand and notice.1 This waiver may arise either from a party's words or his acts.2 A promise to give a note for the amount,3 or the giving of a note for the amount, by the indorser, being an acknowledgment of liability, is a waiver,4 provided it be done by one who has knowledge of his release. But there is some authority which might seem, but really is not,5 to the contrary; and certain rulings have been made which might seem to dispute the general rule. Thus, an admission after maturity of due service of protest did not bind the indorser as by a waiver apparently, for it was held that such an admission was prima facie evidence of notice of protest, rebutted as soon as it appeared that there was in fact no legal protest.6 But an agreement by an indorser to give security for his liability, although it was made after maturity, was not a waiver.7 This decision can be justified on the ground that there was no proof of the indorser's knowledge. The giving of security raises a presumption of waiver.8 If it were given with knowledge, that presumption becomes absolute. As soon as the fact appears, the burden is thrown on the indorser to show his lack of knowledge. Therefore the decision is wrong, for judgment on this question should have been for the plaintiff, the burden of proof being on the defendant. The offer to indorse another note was not a waiver, because it was not perhaps an unconditional admission of liability.9 Nor can an offer of payment in depreciated bank bills,10 or in Confederate money,11 be considered a waiver, since neither acknowledgment is unqualified. An offer to pay part of the note at the time of the offer and a part later raised no presumption of waiver.12 On the other hand, an admission of the justice of the claim, even after suit brought,13 and a statement by the indorser to the holder that he expected to have to pay, coupled with a request for the holder to keep on trying to collect from the maker,14 were both held to be waivers. In all cases of acknowledgments which are not new promises after maturity, or partial payments after maturity, or express waivers after maturity, it is the rule that, if made with full knowledge, the admission becomes absolute.15 The acknowledgment alone appearing, the defendant indorser may rebut the prima facie case by proof of his lack of knowledge, or by showing that the admission was a mistake.18

Walker v. Laverty, 6 Munf. 487; Lewis v. Brehme, 33 Md. 412; Bobbins v. Pinckard, 5 Smedes & M. 51.

10 This presumption ceases as soon as it appears that the notice was defective, it is said, but certainly incorrectly. See Newberry v. Trowbridge, 13 Mich. 263. That is the principle which is applied to an acknowledgment of due service of notice. But an agreement to consider the demand and notice as good is practically a new promise. Duryee v. Denison, 5 Johns. 248. Todd v. Neal, 49 Ala. 260. See Boiling v. Mackenzie, 89 Ala. 470.

11 Fernald v. Bush, 131 Mass. 591.

12 St. John v. Roberts,31 N. Y. 441.

13 Libbey v. Pierce, 47 N. H. 309.

14 Dickerson v. Turner, 12 Ind. 223.

15 See Sherer v. Easton Bank, 33 Pa. 134, as to a partial payment.

16 Olendorf v. Swarty, 5 Cal. 480: Gassaway v. Jones, 2 Cranch, C. C. 334; Clark v. Tryon, 23 N. Y. Supp. 780; Caldwell v. Porter, 17 N. H. 27.

17 McKennon v. McRae, 7 Port. 175; Little v. Blunt, 9 Pick. 488; and see last case in preceding nota the indorser,2 and if the indorser knew that he had been released.3 The partial payment without more appearing is presumptive proof of demand and notice, just as a new promise is,4 and the burden is upon the indorser to show that he had no knowledge of his release.5 A confession of judgment, or a judgment by default suffered by the indorser for the amount of the note, may be considered, perhaps, in the light of a partial payment, for it is certainly not a new promise to pay, because it creates a quas/-contract, not an actual contract. The absolute presumption of waiver resulting arises rather from the rule of law that a party having had an opportunity to plead a certain defense, and failing to do so, is forever concluded, or it results from the form of the authority to confess judgment. It is an absolute waiver of demand and notice, or, what is the same thing, absolute proof thereof.6 At common law a partial payment by one joint indorser released would bind perhaps the other indorsers.7 There is a difficulty here, however, in the fact that the indorser who makes the payment may have knowledge that he is released, while the other joint contractors may not have such knowledge. In the latter case probably they would not be bound. A partial payment inures to the benefit of all the holders of the paper.8

1Curtiss v. Martin, 20 I1L 557; Washer v. White, 16 Ind. 136; Frost v. Harrison, 8 La Ann. 123; Sigour-ney v. Witherell, 6 Met 553; Bibb v. Peyton, 11 Smedes & M. 275; Johnson v. Crane, 16 N. H. 68; Shaw v. McNeill, 95 N. C. 535; Levy v.