majority">Eustis, J.,

delivered the opinion of the court.

This is an action against the drawer of a bill of exchange, as is alleged, protested for non-acceptance. There is no proof of any presentment to the drawee, of protest, or of any notice to the drawer. The bill was drawn on the 28th of March, 1837, and it appears that a partial paymentwas made on it by the drawer, in February, 1838. A witness stated that he presented the bill to the drawer and demanded payment. The drawer requested him to call again, and he would give him an answer more fully. On his return, the defendant said it was a third of exchange, and if he had *421examined it, he would not have paid what he did on it. This took place on the 17th March, 1838. The defendant added, that at the time the bill was given, it was agreed that it should be paid in Richmond, the place in which the bill was drawn. From these facts, it would be left to a jury to infer whether the partial payment was, or not, made with a knowledge on the part of the drawer, of the want of demand, protest and notice. The knowledge may be inferred, from the circumstances attending the payment. The reason for the .drawer refusing to pay the balance due on the bill, is placed on grounds entirely independent of his knowledge of the state of facts which would exonerate him.

The obligation of the drawer of a bill is fixed by the non-acceptance, protest and notice, and it is immaterial whether any demand and protest for non-payment was made or not.A subsequent promise to pay a bill or note, or a part payment thereof, must be made with a full knowledge of the fact of a want of due diligence on the part of (he holder, in giving notice of protest to the parties in order to be binding ; but affirmative proof of this knowledge is not required. It may be inferred from circumstances.

There is no allegation in the petition, of any demand for the payment of the bill, or of any protest and notice of the non-payment. The obligation, however, of the drawer, is fixed by the non-acceptance, protest and notice, and it is immaterial whether any demand and protest for non-payment, was made or not. 5 Johnson’s Reports, page 385. 4 Johnson’s Reports, 144.

We consider the law as settled, that a subsequent promise to pay a bill or note, or a part payment thereof, must be made with full knowledge of the facts of a want of due diligence on the part of the holder, but that affirmative proof of the knowledge is not required. It may be inferred from the promise, or payment under the attending circumstances. 3 Kent's Commentaries, 113. 12 Massachusetts Reports, 52. 12 Wheaton’s Reports, 187. 1 Taunton’s Reports, 12.

Under this principle, the judge of the court below appears to have decided the case, and we affirm his judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

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