Tardy v. Boyd's adm'or

Citations

• 26 Va. 631
• 26 Gratt. 631

Syllabus

<p>I. A note discounted at the bank in B, was to fall due on the 18th of June 1864. On the 10th, from apprehension that the Union forces would come into B, the valuables of the bank, including this note, was sent away about two miles. The Union forces did enter B on the 12th, and left on the 14th of June. The note was not brought back to the bank until after the 18th, and was not presented and protested for non-payment, nor was notice of non-payment given to the endorsers. Held :</p> <p>1. The facts do not excuse the failure to have the note presented and protested, and to give notice to the endorsers.</p> <p>2. But if the bank was not guilty of laches in not having the note presented and protested for non-payment, and notice of dishonor on the day it fell due, to bind the endorser, all this should have been done within a reasonable time after the hindering cause was removed.</p> <p>II. A promise to pay, by an endorser of a note, with full knowledge of all the facts, and of the laches of the holder in not protesting the note, may be held in point of law to amount to a waiver of the right to notice. But such a promise to be obligatory, must be deliberately made, in clear explicit language, and must amount to an admission of the right of the holder, or of a duty and willingness of the endorser to pay. If, therefore, the conduct or acts of the endorser be equivocal, or the language used be of a qualified or uncertain nature, the endorser will not be held responsible.</p> <p>III. B was the endorser of a note made by his brother A, which fell due in June 1864, but there was no protest for or notice of non-payment. B afterwards, with the knowledge of these facts, proposed to the holder, to pay the note in Confederate money; which was refused by the holder; the note being for good money. The proposition of B having been refused, it does not constitute a promise to pay, or a recognition of his liability, which will bind him to pay the debt.</p> <p>IV. Anote made in January