Sidebilder
PDF
ePub

vered to the value of 250l. to certain traders, of the name of S. E. Parker and Co.; and which were averred not to have been paid for to which the general issue was pleaded. At the trial before Lord-Ellenborough, C. J. at the sittings at Guildhall, it appeared that the plaintiffs were manufacturers, living at Manchester: that the defendant lived at Liverpool; and guaranteed to the plaintiffs the payment of the goods furnished by them to Messrs. Parker and Co. who also lived at Liverpool: that these latter, after some excuses and delays, sent to the plaintiffs, by way of payment for the goods furnished by them, a bill, drawn by one of the firm of Parker and Co. upon a person of the name of Jackson, living in London, and accepted by him; which bill was dated 6th of June, 1803, and made payable to the plaintiffs two months after date, who indorsed it to certain bankers in Manchester, in order to obtain payment, who sent it to Lon. don accordingly and the sole question was, Whether the plaintiffs had afterwards made the bill their own by laches? As to which the facts were, That the bill, which became due the 9th of August, was, on that day, presented for payment to the acceptor in London by the bankers' agent, and refused payment, and noted accordingly; and notice thereof transmitted, with the bill, to the plaintiffs by the post of the 10th; which arrived at Manchester about midnight of the th; and the letters were delivered out as usual, between eight and nine in the morning of the 12th. The post leaves Manchester for Liverpool between 12 at noon and one o'clock. The plaintiffs, however, did not send notice of the dishonour of the bill, either by the post of that day, or by the post of the next, which was the 13th: but they sent the bill with such intelligence by a private hand; by which it was delivered to the drawer at Liverpool on the 13th, about nine o'clock in the evening; which was two hours after the time when it would have arrived by the post of that day from Manchester, the distance between the two places being about 37 miles. The post leaves Liverpool for London between nine and ten o'clock in the evening. The drawer, having received notice of the dishonour at Liverpool not much above an hour before the post departed for London, was so much agitated that he could not get his letter of advice to his correspondent in London ready that night; and did

B 2

1805.

DARBISHIR

against PARKER.

[4]

1805.

PAREISHIRE

PARKER.

[5]

did not send it till the next. It did not, however, appear that the acceptor had any funds of the drawer's in his hands, against or that the drawer had in fact received any detriment from the delay of the notice to him. Lord Ellenborough, C. J. considering the question of reasonable notice as compounded of law and fact, left the whole to the jury; advising them that it was not necessary, in his opinion, for a person to leave all other business and attend solely to one transaction; but they were to consider whether, upon the whole, reasonable dispatch had been used by the plaintiffs, in communicating notice of the dishonour of the bill to the drawer. That the few hours which intervened between the delivery of the letter of advice to them at Manchester on the 12th, and the going out of the post on that day for Liverpool, might, he thought, excuse them, having other affairs to attend to, from not writing by that post, there being no evidence of the exact time when the letter came to their hands; and that, if they had the next day to send notice, it seemed that they had the whole of that day, in the course of which they had sent intelligence by a private hand to Liverpool, in time, as it appeared, for the drawer to have written by that night's post to London, had not his agitation delayed him. The jury found a verdict for the plaintiffs : to set aside which, a rule nisi was granted in the last term, which was applied for on the ground that reasonable notice was a question of law; and that the law required, where the parties lived in different places, that notice of the dishonour of a bill should be sent by the next post: that here the next post went out on the same day the letter of advice reached the plaintiffs at Manchester; but that at any rate they had been guilty of laches in not sending notice by the post of the 13th, but trusting to a private hand, which delayed the delivery of it too late for writing to London by the post of the 13th from Liverpool.

Erskine and Richardson shewed cause against the rule 3 'and contended, That reasonable diligence had been used in communicating the notice of the dishonour of the bill to the drawer. The notice could not have reached the plaintiffs at Manchester, by the course of the post, till past eight o'clock in the morning of the 12th, and the post goes out again

for

[ocr errors]

for Liverpool about noon; so that there was not more than an interval of four hours; and, therefore, unless it be an inflexible rule of law that notice of the dishonour must be sent by the very next post after it is received, the question was fairly left to the jury, Whether the plaintiffs had been guilty of laches in not sending intelligence by that day's post? and they have found in the negative. It is not compatible with the usual course of business in the world, ner with common personal convenience, nor agreeable to the general rule of law in other cases, to notice such minute portions of time less than a day. It is unreasonable to require that a man shall be bound to leave all other business and concerns of life, to attend solely to one particular occurrence. It was reasonable for the jury to presume, as the notice was not forwarded on the 12th, that the plaintiffs were from home when the letter was received at their house, or that they had other more important concerns to attend to within those four hours; and the direction was right, if it were but competent to the jury to make such a presumption. Then if the plaintiffs had till the next day to send the notice, 10 far from not having used due diligence, they shewed more than ordinary attention to the matter in sending notice by a private hand. It is true that, by some accident, which does not appear, the letter did not reach the drawer's hands till after the usual post hour of delivery from Manchester to Liverpool; but no fault is imputable to the plaintiffs on that account; for he still received it in time to have written by the London post of the same night, had he posses-ed common firmness of nerves; and the plaintiffs ought not to suffer because of the drawer's deficiency in that respect: and, ultimately indeed, no detriment was received by the want of notice to the drawer the day before, the acceptor having no funds of the drawer in his hands. In Tindall v. Brown (a), where the line was first attempted to be strictly drawn, it was cous dered, that even where the parties lived in the same place, notice to the indorser, given the next day after the dishonour of the note, would have been sufficient, if the holders had not on that day given him a new credit till the close of the banking hours, at four o'clock in the afternoon : and though it was there said, That if the party to be charged

[blocks in formation]

1805.

DARBis"!:

again

PAREER.

* [ 6 ]

[7]

1905.

DARBISHIRE against PARKER.

[ 8 ]

do not live in the same place, the holder must write by the next post after the bill is dishonoured; yet, that must necessarily mean the next practicable post under all the circumstances, due regard being had to other business aud to accidents. It is, in short, a mixed question of law and fact, whether the bill were presented in reasonable time, and therefore properly left to the jury, as was done in Muilman v. D'Eguino (b).

Lord Ellenborough, C. J. That was the case of a foreign bill drawn payable in the East Indies so many days after sight; and the Court only determined that it was not necessary to send notice of the dishonour by an accidental foreign ship which sailed from thence not direct for England; but that it was sufficient to have sent notice by the first regular English ship which sailed for England, considering the latter in the nature of the regular post between the two countries..

In the last case on this subject, Haynes v. Birks (c), Lord Altanley said, that there was no law which required notice to be given within any certain fixed time; that it need not be given with all the dispatch which could possibly be used, but with all the dispatch that could reasonably be expected. And there the bill, which was put by the plaintiff in the hands of his bankers to present for payment, having been dishonoured in London about two o'clock on Saturday, and presented again at nine in the evening by a notary, and notice given of the dishonour to the plaintiff on Monday, at Knightsbridge, who gave notice of it to the indorser on Tuesday, at noon, in Tottenham-Court Road: this was deemed to be reasonable notice; and Lord Alvanley observing that it did not appear at what time on Monday the plaintiff received the notice from his bankers, said, that “he was not bound to be at home the whole of the day; and supposing him to have returned home late on that day, he was not bound to send a special messenger to the defendant: if he informed him by the course of the post, it was sufficient; and supposing him to have so done, the defendant would only receive his letter on Tuesday.”

Gibbs and J. Clarke, contra, were stopped by the Court.

(a) 2 H. Blac. 565. (b) 3 Bos. & Pull. 599.

ther

}

Lord ELLENBOROUGH, C. J. It comes to the point whether I was right in telling the jury that the plaintiff's had till' the next day after they received the notice of the bill's being dishonoured to communicate that notice to the drawer; for it struck me, that if they were in time to give notice on the 13th at Liverpool, they had the whole of that day, and having sent a letter of advice by a private hand to the drawer in time for him to have written by the post of that night to London, they might be considered to have used due diligence. There appears to me considerable difficulty in laying down any certain time within which notice must at all events be given. The general direction, indeed, of Marius' and other writers, is to send notice of the dishonour of a bill by the next post, where the parties do not live in the same place; and the same was said in Tindal v. Brown: and yet, in that case, it was considered sufficient if notice were given the next day, where the parties all lived in the same town. If notice inust at any rate be communicated by the next post after it is received, it must often happen that the party will not have a day, or any thing like a day, to give it in ;' for the post may go out immediately or very soon after the letter of advice arrives. There must, therefore, be some reasonable time allowed, and that too, accommodating itself to other business and affairs of life; otherwise it is saying that a man who has bill-transactions passing through his hands must be nailed to the post-office, and can attend to no other business, however urgent, till this is dispatched. But if there be a reasonable time between the coming in and going out of the post on the same day, as in this case four or five hours may be contended to be, allowing for reasonable diligence in other concerns as well as in this, it would be a material question, if neatly raised, whether the party were bound to communicate by the next post the intelligence he had received by the post on the same day. Ithink, however, there is sufficient doubt in this case, whether reasonable diligence were used, to make it proper to send the case to be considered by another jury; for here the plaintiffs not only did not write by the next post of the same day, which went out after an interval of four or five hours, but they did not even write by the post of the next day, but relied on a private hand to carry the letter of advice, by which

B4

1805.

DARBISHIRE

against PARKER.

« ForrigeFortsett »