
    LEONARD v. HASTINGS.
    L. advanced to H. $476, and received from H., for collection, an order for the amount upon a party indebted to him. The order not being collected, L. returned it to H. and took H.'s note for the amount advanced. In a suit on the note H. set up as a defence, laches on the part of L., in not presenting the order, by means of which the debt was lost: Held} that if there were any laches, they were waived by the execution of the note.
    Appeal from the District Court of the Fourth Judicial District, County of San Francisco.
    
      Francis J. Lippitt for Appellant.
    
      Janes, Lake & Boyd, for Respondent.
   Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring.

In 1853, the plaintiff advanced to the defendant, who was on the eve of his departure from the State, the sum of §476, and received from him, for collection, an order upon a patient for the amount, which was due for medical services. On the return of the defendant to California, the plaintiff delivered to him the order, the same never having been collected, and took the note in suit for the amount advanced. The defence set up was the laches of the plaintiff in not presenting the order by means of which the debt was lost. It was in evidence that the order was presented to the drawee with a request of payment, which was refused. This fact alone disposes of the defence. If there were any laches they were waived by the execution of the note.

Judgment affirmed.  