5 Johns. 248 | N.Y. Sup. Ct. | 1810
delivered the opinion of the court. We are of opinion that the testimony of Aikin, as given at the trial, was sufficient to support the verdict. The rule is now settled, that if an endorsor has not had regular notice of non-payment by the drawer; yet if with knowledge of that fact, he makes a subsequent promise to pay, it is a waiver of the want of due notice, and assumpsit will lie. (2 Term Rep. 713. Stra. 1246. 6 East, 16. Hopes v. Alder, note. 7 East, 231. 236, note. Whitaker v. Morris, Esp. Dig. 58. Chitty, 102. Bayley on Bills, 78. Anson and Bailey, Buller’s N. P. 276. Peake’s N. P. 202.) All this was made out by the testimony of Aikin, and the motion for a new trial is founded on affidavits which go to impeach the credit of his testimony. But this ought not to be permitted
Motion denied,.
4 Johns. Rep. 425.