This was an action originally commenced against James 1ST. Sherman (the defendant’s testator), as indorser of a bill of exchange, of which the plaintiff appeared to be a tona flete holder. The bill was drawn upon George L. Davis by one Wilder, payable to his own order, and indorsed by him and the defendant Sherman, on the 9th of July, 1845 (the date of the bill), payable six months from date. By an inquisition taken on the 31st December, 1845, under a commission issued by the Court of Chancery, it was found that Sherman then was, and had been since the 1st day of July previous, in consequence of habitual drunkenness, of unsound mind, and incapable of conducting his own affairs, or of governing himself or his property. In February following, the inquisition was filed, and a committee of the person and estate of said Sherman was appointed by the Court of Chancery, which continued in force until his decease. On the trial, after proving the handwriting of the maker, indorsers, and acceptor of the bill, the plaintiff produced a paper signed by the acceptor and indorsers, dated January 5, 1846, waiving notice of non-payment and protest of the bill.
*122The Supreme Court gave judgment for the defendants, on the ground that Sherman, after being found an habitual drunkard, had no power to waive demand and notice of non-payment of the draft; and they also held that evidence, which was offered by the plaintiff, that Sherman, at the time of executing the waiver, was perfectly sober and competent to transact business, was properly rejected.
The judgment of the Supreme Court was affirmed by this court, on the ground that the inquisition was conclusive evidence of the incapacity of the drunkard to dispose of his property, or to make contracts, from the time when it was found.
There was no evidence that the plaintiff had any actual notice of the condition of Sherman, or of the inquisition.
(S. C., 14 Barb. 169 ; 8 N. Y. 388.)