
    Walker v. Laverty and Gantley.
    Decided, Jan. 31st, 1820.
    i. Bill of Exchange — Notice of Protest — Acknowledgment of Debt as Waiver of. — If the drawer of a protested hill of exchange, being applied to, in behalf of the holder, for payment, acknowledge the debt to be just, and promise to pay it; saying nothing about his having received notice; the holder, in an action of debt upon the bill, against such drawer, is not bound to prove that notice was given him of the protest.
    
      
       Bill of Exchange — Notice of Protest — Acknowledgment of Debt as Waiver of. — when a hill of exchange returns protested, and the drawer, on payment being demanded, promises to pay, he cannot after-wards resist the payment, on the ground that due notice was not given of the protest. Pate v. M’Clure, 4 Rand. 164, 170. citing principal case.
      In Cardwell v. Allan, 33 Gratt. 166, on the authority of the principal case and Pate v. McClure, 4 Rand. 160, It was held that the repeated acknowledgments of the indorser of a note of Ms liability thereon, and his repeated promises to pay the note was under the circumstances of the case sufficient agreement to waive demand and notice.
      In Peabody Ins. Co. v. wilson, 29 W. Va. 541, 2 S. E. Rep. 895, it is said: “If it be true, as alleged in the affldayit of Layne, that the indorser Buffington ‘always acknowledged his liability for the debt sued on, and promised to pay the same.’ and these facts had been proved on the trial, such acknowledgment and promise to pay the note was a waiver of all notice, although nothing was said about notice in the acknowledgment, for in such cases the holder is not bound to prove that notice of the protest thereof was given him. Walker v. Laverty, 6 Mimf. 487; Pate v. McClure. 4 Rand. (Va.) 164; Devendorf v. West Virginia Oil and Oil Land Co., 17 W. Va. 174; Daniel Neg. Inst. sec. 1151.”
      To the same point, the principal case is also cited in Devendorf v. W. Va., etc.. L. Co., 17 W. Va. 175. See further, monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
   Laverty and Gantley merchants and partners, brought their action of debt in the Superior Court of Henrico County, on a protested inland bill of exchange, against “John C. Walker, of the firm of Walker & Co.” a citizen and inhabitant of the said County; charging in the declaration, that the bill was drawn by the said Walker & Co. on the 26th day of March 1816, at New-York, “to wit, at Henrico aforesaid, and within the Jurisdiction of the Court,” according to the use and custom of Merchants, (the name of the said Walker & Co., by the hand of the said John C. Walker, one of the partners as aforesaid, being thereto subscribed,) for the sum of $343 88, value received; that the plaintiffs presented the said Bill to Messrs. Coe & Marsh, the drawees, at New-York, on the day of , in the year aforesaid, and requested them to pay it, which they refused to do; whereupon it was protested by a Notary Public for the City of New-York, on the 30th of September 1816; of which the said Walker & Co. then and there, to wit, at Henrico aforesaid, had notice; whereby, and by virtue of the Act of Assembly in such case made and provided, action accrued, &c. against the said Walker & Co., &c., in the usual form of a declaration against a mercantile company.

The defendant pleaded nil debet.

On the trial, he required proof of notice of protest for non-payment of the bill, whereupon the plaintiff introduced a witness, who proved that he applied to the defendant *John C. Walker for payment of the said bill; that the defendant acknowledged that the debt was a just one, and said he would pay it; and that nothing was said in that conversation as to his receiving notice or not. The defendant thereupon moved the Court to instruct the Jury, that, unless the said acknowledgment was made «with a knowledge of all the facts of the case as to the laches of the holders of the said bill, the said evidence of the acknowledgment was not to be received; which opinion the Court refused to give, and instructed the Jury that such acknowledgment was a waiver of all notice. — The defendant filed a bill of exceptions; and, a verdict and judgment being rendered against him, he obtained a Supersedeas from a Judge of this Court; contending, in his petition, that the Superior Court erred in not giving the instruction to the Jury requested by him; and referring to Blesard v. Hirst, 5 Burr. 2672; Goodall & others v. Dolley, 1 Term. Rep. 712; and 12 East 38.

After argument by Bacchus for the plaintiff in error, and Upshur contra, the Court affirmed the Judgment.  