By the Court, Welles, J.
I think the only question in this case worthy of consideration, is whether the plaintiff should have been allowed to prove that the defendant, at the time he signed the written waiver of notice of non-payment and protest of the draft, was perfectly sober and competent to transact business. The waiver bore date after the finding of the inquisition. Was the inquisition conclusive, or only prima facie evidence of the incapacity of the defendant? The weight of authority seems to be that it was conclusive. In L'Amoreux v. Crosby, (2 Paige, 427,) Chancellor Walworth says, “As to acts done by the lunar tic or drunkard, before the issuing of the commission, and which are overreached by the retrospective finding of the jury, the inquisition is only presumptive, but not conclusive evidence of incapacity. But all gifts of the goods and chattels of the idiot, lunatic, or drunkard, and all bonds or other contracts made, by *172him after the actual finding of the inquisition declaring his in-comp ctency, and until he is permitted to assume the control of his property by the permission-of the court, are utterly void.” The chancellor refers to Beverly’s case, (4 Coke’s Rep. 126, b, 127, a.) And this rule seems to have been followed in this state, and may, I think, be regarded as established. (See matter of Burr, a lunatic, 2 Barb. Ch. R. 208; Matter of Patterson, an habitual drunkard, 4 How. Pr. R. 34.) The rule in Massachusetts is the samej with the exception that the lunatic may, during a lucid interval, after office found, make his last will and testament without permission of the court. (White v. Palmer, 4 Mass. Rep. 147. Stone v. Damon, 12 Id. 488. Leonard v. Leonard, 14 Pick. 280. Breed v. Pratt, 18 Id. 115.) And I am not aware that, in this state, it has ever been held that a last will and testament, made by a person under a- committee, or after inquisition found, although without the permission of the court, would be absolutely void. In the matter of Burr, a lunatic, the order merely discharged the lunatic from the commission and inquisition so far as to permit him to make his will, under the advice and with the sanction of a vice chancellor. He was left at liberty to revoke and cancel the will entirely, without such sanction. But suppose he had made a will without the sanction of the court, I think it is at least an open question, in this state, whether the persons interested in sustaining it, would not be permitted to show that he was of sound mind and memory at the time it was made. I am well satisfied that it has never been judicially held otherwise. If it were necessary, I think it might be shown that such proof would be admissible. The only effect of the commission in such case, would be to shift the burthen of proof. That, however, is foreign to the question in this case, and the remarks are made only to guard against any inference that I concur in the remark found in the case cited from 4 How. Pr. Rep., that the rules in this state and Massachusetts are different.
The liability of an indorser of a time draft is contingent and conditional. It depends upon three things; first, that it shall not be accepted by the drawee when presented for that purpose; *173second, that if accepted, it shall not be paid by the acceptor at maturity, according to its tenor, when properly presented for payment; and, third, in either case, that the holder shall give notice to the indorser of such non-acceptance, or non-payment. Presentation and notice in both cases is, in general, indispensable to the indorser’s liability, unless he chooses to dispense with it. If neither is done, his liability fails to become absolute and is at an end. Presentation and notice are as essential to the indorser’s liability as the indorsement itself; and, it seems to me, the effect of the inquisition upon the act of the defendant, by which it is claimed these conditions of his liability have been dispensed with, should be the same as upon the act of indorsing the draft, provided that had taken place after the finding of the inquisition. It is claimed that if the defendant could not waive presentation and notice on account of the inquisition, the same reason would make service of notice upon him useless and void. So far as notice is concerned, I am not sure but that would be so. But the presentation of the draft for payment after acceptance, was a different thing. That was a proceeding in which the defendant was to take no part, and whether in this case, as the draft matured between the finding of the inquisition and the appointment of .the committee, any notice at all was necessary, it is not material to decide. A demand was clearly necessary, and a condition precedent to the defendant’s liability, which he was not competent to waive.
[Monroe General Term,
June 3, 1851.
Welles, Sellen and Johnson, Jus tices,]
I am of opinion, therefore, that the learned justice committed no error in excluding the evidence in question, and that a new trial should be refused.
Ordered accordingly.