Trimble v. Thorne

Spencer, Ch. J. delivered the opinion of the Court. The several cases of Duryee v. Denniston, Miller v. Hackley, (5 Johns. Rep. 248. 382.) Crain v. Colwell, (8 Johns. Rep. 384.) and Agan & M‘Manus, (11 Johns. Rep. 180.) decide, that if an endorser of a bill or note, who has not had regular notice of non-payment, by the acceptor or maker, with full knowledge of that fact, makes a subsequent promise to pay, it is a waiver of the want of notice, and he is liable ; but it must be shown by the plaintiff, affirmatively and clearly, that the defendant knew, when he made the subsequent promise, that he had not received regular notice. The Court never intended, in the various cases which have come before them, on this point, to leave it to' be inferred from the mere fact of the subsequent promise, that regular notice had been given, or was intended to be waived. In the case of Beekman, survivor of Walsh v. Connelly, (a) recently before us, we held, that the proof of a promise to pay, merely, without its appearing, also, that the party knew he had not received regular no’tice, did not dispense with the proof of regular notice. An endorser may believe that due notice has been given, inasmuch as notices need not be personally served, and under an ignorance of the facts, consider himself liable when he is not. It is no hardship on the,holder of a bill or note, to require of him proof of regular notice; but if a party, with a full knowledge of all the facts, voluntarily promises to pay, and waives his\ right to notice, he will be held to his promise, i We do not think the case of Pain v. Packard applies; for the endorser, though in the nature of a surety, is answerable upon an independent contract, and it is his duty to take up the bill when dishonoured. Judgment of nonsuit. Footnotes [(a)] Argued in January Term, 1818, but not reported.