1806.

versus

the Inhabitants

was discharged from thence he should be sent to be

The KING employed in his majesty's service by land in his majesty's fortieth regiment of foot; but the said John Saof BINEGAR. Vage hath never contributed to the maintenance of the said Elizabeth. The respondents produced evidence to the court, that a marriage solemnized between the said John Savage and the said Elizabeth, before the said orders of removal or either of them were made, was a nullity, and the nullity of such marriage was not disputed. The question for the opinion of the court of Kings Bench is, whether or not the respondents were estopped either by the former orders of removal, or by the adjudication of the said John Savage to be a vagrant, for running away and leaving the said Betty who is in such adjudication considered as his wife, from giving any evidence whatever to prove the said marriage a nullity.

GARROW and TOPPING, in support of the order of sessions; "The question is whether the sessions have done right in the last order made. The order of removal of Elizabeth Savage, though not appealed from is immaterial as to us and cannot affect the present appellants; for it does not involve the question of the marriage. The order of commitment of John Savage for having run away from his wife and children, the parish have nothing to do with, and are not affected by it. That order applies to the man only personally, upon the statutes concerning vagrants, and the question upon it only turns upon his vagrancy. Then, the first order is bad upon the face of it, and the circumstance of there being no appeal will not conclude the parish. It professes to adjudge on the settlement of Savage, upon the examination of Betty Savage herself only; and is, therefore, informal. They use the words on due examination we do adjudge the complaint and premises to be true,' and we do further, upon the

1806.

The KING

versus

examination of the said Betty Savage, adjudge that the said John and Betty were last legally settled at Midsomer Norton ;' but they do not state, on due examination, they find that they were settled there. And the wife of BINEGAR. can know nothing of the husband's settlement except

from information."

Lord ELLENBOROUGH, C. J.

Why not? They might live fellow servants in the same family."

GARROW. "There is then another objection that on the face of this order it is not an adjudication of their present settlement; for they only state that they were last legally settled at Midsomer Norton."

Lord ELLENBOROUGH, C. J. "We cannot intend an intermediate settlement."

TOPPING, on the same side. " If the order is bad on the face of it, the defect in the order cannot be helped by the circumstance of omitting to appeal against it; The King v. Inhabitants of Chilverscoton. Now they have not stated enough to give jurisdiction; for it should state, that the parties are in the place from which the order of removal is to remove them; and this is not, therefore, an order which the sessions could amend; for it is clear, that the sessions cannot amend where it is necessary to have evidence in order to find the amendment. It omits also to state, that they have intruded and were then in the parish of Kilmersdon, endeavouring to settle themselves."

Lord ELLENBOROUGH, C. J. "Do the words not import that they are then there? The words are also "and they are likely to become chargeable. If the sessions have adjudged on the fact of the marriage,

8 Term Rep. 178.

the Inhabitants

1806.

The KING

versus

the Inhabitants

of BINEGAR.

it is conclusive upon us, and the fact of the marriage was clearly adjudged upon."

ORDER OF SESSIONS and order of re moval QUASHED.

rersus GORDON.

PARKER against GORDON.-May 15th.

A bill accepted, payable at a bankers, must be presented for payment before six o'clock, or rather within the usual hours of a banker's shop being open, and proof of presentment afterwards, by a notary, when a boy came to the door, and could give no answer as to the payment, the clerks being gone, was held not to be proof of the dishonour of a bill. Semble pari ratione, all bills should be presented during the regular business hours of the acceptor, which are variable; and presentment after will not entitle the notary to protest them. Certes, It is by no means safe to rely on the notary, for proving the presentment of a bill, unless he goes with it at the first presentation, in the middle of the day.

PARKER IN an action by indorsee of a bill of exchange, against the drawer, the question turned upon the presentment of the bill and the notice thereof to the defendant. The bill was accepted specially, "payable at Davidson's and Co. 54, Pall Mall." To prove the tender for payment, the plaintiff called the notary, who went to Messrs. Davidson's, after or about six o'clock, when the shop was shut and a boy came to the door and could give no answer as to the bill, the clerks being gone. No previous tender for acceptance was proved. The notice was by a letter put into the postoffice in Inner Temple Lane, on the next day, directed to the defendant.

Lord ELLENBOROUGH, C. J. before whom the

4

cause was tried, at the sittings in term, nonsuited the plaintiff.

1806.

PARKER

versus

MARRYAT now moved for a rule to shew cause why GORDON there should not be a new trial, on the ground of a misdirection, by the learned judge. And as to one point, he cited Sanderson v. Judge, to shew that notice, sent by the post, of the dishonour of the bill, was sufficient, the only proof of notice being the putting of a letter in the post. As to the tender at the banking house after the shop was shut, he said the bill was directed payable at Davidson's, 34, Pall Mall; the notary called there and was answered by a boy, that the shop was shut and the clerks were not there; and, although it could not be contended that at 12 o'clock at night, a tender would be sufficient, yet it was a question for a jury to say what is the proper time of presentation.

Lord ELLEN BOROUGH,C. J. "I rather differ from you in that; for I think it is for the judge."

LAWRENCE, J. "When the bill is accepted in these terms payable at a bankers, he, the indorsee or drawer, takes it liable to this inconvenience."

MARRYAT. "He cannot know from the bill itself whether it is payable at a bankers or not; for Davidson and Co. are not described as bankers. In Leffley v. Mills, and this is not the case of an accep tance by a banker, but a bill payable at a banker's, the court said, they could not take notice of what are called banking hours, but must consider what is the ordinary time of presenting bills. In that case, it is held, that the party has the whole of the day to pay the bill, and if so, why should the holder be bound to present it long before the time at which the acceptor is bound to pay it? In this case there was, in fact, an earlier presentment by the banker's clerk, and this was only the

1806.

PARKER

versus

GORDON.

1

second presentment by the notary. If this strictness is required, then the bill must always be presented by the notary in the first instance; which would be very inconvenient."

Lord ELLEN BOROUGH, C. J. "The question is, whether this bill has been dishonoured. The person on whom it is drawn accepts it payable at a bankers, by which the holder is not precluded from presenting it to the person himself. If he gets payment at the bankers, he is satisfied; if not, he may resort to the party himself. But by the terms of the acceptance he is to go, at the convenient time of resort, to the place where he is directed, and it is to be presumed the holder will inform himself of the proper time; but to go at an improper time is luring the drawer, as it were, into the dishonour of the bili. If it is not paid at the usual hours, then he is to go to the party himself; but it is not in evidence here that he has gone to that party or that he presented the bill earlier. The holder has only to understand the plain import of the bill."

LAWRENCE, J. "Nobody could keep money at a banker's to make his bills payable there, if it were otherwise than as his lordship has decided. You say, that the acceptor is not bound to pay earlier at a banker's shop, than any where else, and that, therefore, presentment, during the time when it might be paid, or during the time the party has to pay it in, is sufficient; but, if so, the business of a banker could not be done, unless he kept the shop open all night. I consider this as payable at a bankers and known to be so. The holder ought to go at the usual time."

LE BLANC, J. "The inconvenience to the mercantile world would be on the other side entirely."

RULE for a new trial REFUSED, for want of a due presentation of the bill.