(after stating the facts). The defendant took three exceptions on the trial of this case, none of which are tenable.
First. For that the third issue submitted to the jurj was not raised by the pleading.
But it will be seen by reference to the answer of the defendant, that the question of diligence involved in the issue, was expressly raised in the answer, by pleading that reasonable notice of the acceptance and non-payment of the draft had not been given bj the plaintiffs to the defendant.
Secondly. For that his Honor refused to give the charges as requested by the defendant, which was in substance, that the plaintiffs had not notified the defendant in a reasonable *538time that the drawee had refused the payment of the draft. There was no error in this, for the reason, as we will hereafter show, that the defendant had waived the necessity of notice.
Thirdly. For that his Honor charged the jury that they might consider the words “No protest” on the draft, and the language and conduct of defendant when he was informed bji the plaintiff of the non-payment, and the offer to pay $60.00; and that if the defendant had offered to pay $60.00 as alleged by Shaw, it amounts to a waiver.
Wfe find no such error in the charge as entitles the defendant to a new trial. There is some fluctuation in the decisions of the courts upon the question, how far a promise to pay a part of a draft is a waiver of demand and notice of non-payment. For instance, it has been held by some of the authorities, that when the promise is only as to part of the sum, it is only a waiver pro tanto, and the plaintiff could only recover that amount. Fletcher v. Froggart, 2 Car. & P., 569, (12 E. C. L. R.) On the other hand, it has been held, that “ a promise to pay generally, or a promise to pay a p>aH, or a part payment made, with a full knowledge that he has been fully released from liability on the bill by the neglect of the holder, will operate as a waiver, and bind the party who makes it for the payment of the whole bill.” Dixon v. Elliot, 5 Car. & P., 437; Margetson v. Aitkin, 3 Car. & P., 388; Harvey v. Troupe, 23 Miss., 538. So it would seem, that the weight of the authorities supported the charge of the Judge in this particular.
But aside from this, his Honor, in his charge to the jury, told them they might consider the words “ No protest,” written on the margin of the draft, as evidence of a waiver of notice of presentment and non-payment. The words “No protest” written on the margin of this draft, must have been put there with an object, and we can conceive of none other than to dispense with the notice of presentment and refusal to pay, otherwise it is unmeaning.
*539It is well settled, that protest being a part of the custom of merchants which is essential in foreign bills to fix the drawee and indorsers with liability, is not necessary for such a purpose in inland bills. Hubbard y. Troy, 2 Ired., 134; 1 Parson’s on Notes and Bills, 643. But even in foreign bills the protest may be waived. There the words, “I waive protest,” or “waiving protest,” or any similar words, infer that the protest is waived, and when applied to foreign bills, was universally regarded as expressly waiving presentment and notice, the protest being, according to the law-merchant, the formal and necessary evidence of the dishonor of such an instrument. In waiving “protest,” the party is considered not only as dispensing with a formality, but as dispensing with the necessity of the steps which must precede it, and of which it is merely the formal, though necessary, proof of what the law required. 2 Daniel on Neg. Ins., §1095. But when the waiver of protest is applied to inland bills, the protest having no application to such instruments, there is a diversity of opinion in the Courts and text books, whether such a waiver would have the effect of dispensing with notice in an action upon an inland bill. But the better opinion is, that as the word “protest” has by general usage a well known signification, and wherever it is used, it is supposed to mean something more than the formal declarations of a notary. Hence, Mr. Daniel, who is very high authority on the subject, says, “the weight, as well as the number of authorities, predominates in favor of construing a waiver of “protest” to signify as much when applied to inland bills and notes, as when used in respect to a foreign bill.”
“ Inland bills and promissory notes may be protested, by statuary enactments, in many States, and the protest is accorded the same effect as to them, when it is made, though it is not necessary to make it, and the weight, as well as the number of authorities, predominate in favor of construing a waiver of protest to signify as much when applied to *540inland bills and notes, as when used in respect to a foreign bill.” Ibid., and the cases cited in Note 2.
The doctrine there laid down, must then apply to this bill, for we have a statute which provides that when it may be necessary to prove a demand upon, or notice to the drawer or indorser of a bill of exchange, or a promissory note, or other negotiable security, the protest taken before a ¡proper officer shall be prima facie evidence that such demand was made, or notice given, in the manner set forth in the protest. The Code, §49.
Our conclusion is, there was no error. The judgment of the Superior Court is therefore affirmed.
No error. Affirmed.