On the 15th of May, 1845, the defendants, at Philadelphia, drew a sight draft upon John T. Smith & Co., of New York, for $918.75, payable to the order of J. Kerr & Son. The payees indorsed the draft, and remitted it on the same day to the plaintiff, at New York, in payment of a debt due him. The plaintiff received it on the morning of the 15th of May, and immediately presented it to John T. Smith & Co., for payment, and instead of taking payment in cash, accepted their check on the Merchants’ Bank in Mew York for the amount, and gave them the draft.

The plaintiff deposited the check in the Bank of America, for collection, by which bank it was presented to the Merchants’ Bank, on the 16th of May, for payment, and dishonored, Smith & Co. having failed on the 15th. The plaintiff, on the 16th of May, wrote to Kerr & Son, informing them of the receipt of the draft, and that it was presented to Smith & Co., who gave their check for it on the Merchants’ Bank, which was not paid. That he had the check protested, and he requested Kerr & Son to retain settlement from defendants, if not already made.

Kerr, immediately on receiving the letter, showed it to one of the defendants) .who promised to pay the draft when returned to them. Held, that a charge to the jury, in an action against Clark & Company to recover the amount of the draft, that if they should find that Smith & Company would have paid cash for the draft when presented, if their check had been refused, or if the check would have been paid if presented to the bank on the 15th, that then they ought to find for the defendants, was correct.

That the defendants were not liable on their subsequent promise to pay the draft when returned, because, at the time of the promise, they Were ignorant of the laches which had occurred in the presentation and demand of payment of the draft and of the check.