delivered the opinion of the Court:
This was an action brought by the indorsee of two bills of exchange against the drawers, the acceptor having failed to pay. There is no proof of presentment for payment to the acceptor, at the maturity of the bills, nor of immediate notice of non-payment. It is insisted, however, by the defendant in error, that the drawers were not discharged by this loches of the holder, because, it is said, they had no funds in the hands of the acceptor. It appears, however, that the acceptor was indebted to the drawers, and this fact made it obligatory on the holder to present the bill at maturity. Such indebtedness was a fund against which the plaintiff in error had a right to draw. Thackray v. Blackett, 3 Campb. 164.
It is also insisted that the drawers waived the loches by a subsequent promise. The language used was equivocal; hut, admitting that the partner who used it intended to be understood as promising payment, there is no evidence that, when he made the alleged promise, he knew that the holder had failed to present the hill at maturity, or to give due notice of nonpayment. Unless it appears that the new promise was made with a full knowledge of the facts out of which the discharge of the drawer has arisen, such promise is no waiver. The burden of making this proof is upon the plaintiff. Morgan v. Peet, 32 Ill. 288; Farrington v. Brown, 7 N. H. 271; Trimble v. Thorn, 16 Johns. 153.
It is impossible to sustain this verdict upon the evidence. The judgment is reversed and the cause remanded.
Judgment reversed.