vered to the value of 2501. to certain traders, of the name of 1805. S. E. Parker and Co.; and which were averred not to have

DARBISHIRT been paid for: to which the general issue was pleaded. At against the trial before Lord-Ellenborough, C. J. at the sittings at PARKER Guildhall, it appeared ibat the plaintiffs were manufacturers, living at Manchester : that the defendant lived at Liverpool ; and goaranteed 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 10 the plaintiff's, by way of payment for the goods furbished by them, a bill, drawn by one of the firm of Pura ker and Co, upon a person of the name of Jackson, living in London, and accepted by frim ; 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 bad 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 trans: milled, with the bill, to the plaintiff's by the post of the 101h ; which arrived at Manchester about midnight of the uith; 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 plaintiff's, however, did not send notice of the dishonour of the bill, either by the post of that day, or by the post of ihe 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 bine o'clock in the evening; which was two hours after the time wben it would bave 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 belore the post departed for London, was so much agitated that he could not get his letter of ad. vice to his correspondent in London ready that night, and


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, DARBISNIRE

gainst or that the drawer had in fact received any detriment from PARKER. the delay of the notice to bim. Lord Ellenborough, C. J.

considering the question of reasonable notice as compounded of lair and fact, leli the whole to the jury; advising them that it was not necessary, in his opiniou, for a person to leave all other business and attend solely to one transo, action ; but they were to consider whether, upoo the whole, reasonable dispatch had been used by the plaintiffs, in com

municating notice of the dishonour of the bill to the drawer. ( 5 ) That the few hours which intervened between the delivery

of the letter of advice to thein 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 leiter 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 terin, 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 ; '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 ihe morning of the 12th, and the post goes out again


[ocr errors]

for Liverpool about noon; so that there was not inore than 1805. an interval of four hours ; and, therefore, unless it * be an D. inflexible rồle of law that notice of the dishonour must be aparn sent by the very next post after it is received, the question ,


*[ 6 ] was fairly left to the jury, Whether the plaintiffs had been guilty of laches in not sending intelligence by that day's post? — and ihey have found in the negative. It is not compatible with the usual course of business in the worid, nor with com:non personal convenience, nor agreeable to the general rule of law in uther cases, 10 nolire such ininute pórtions of tirne less than a day. It is unreasonable to regnire ihat a man shall be bound to leave all other business and concerns of life, to attend solely to one varticular occurrence. It was reasonable for the jury to presuine, äs ibe notice was not forwarded on the 12.11, that the plaintiff's were froin home when the letter was received at their liouse, or that they had other inore important concerns to attend to within those four hours; anal ibe direction was right, if it Pere but competent to the jury to make such a presumption. Then if the plaintiffs had til the next day to send the notice, so far from not having used due diligence, they shewed more than ordinary attention to the matter in sending novice by a private hand. It is true that, by some accident, which does not appear, the letier 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 ihe plaintifis on that account; for be 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 plaintiff'sought out to suffer because of the drawer's deficiency in that respect : and, ultimately indeed, no detriment was received by the want of Dotice to the drawer the day before, the acceptor having no funds of the drawer in his hanils. In Tindall v. Brown («), where the line was first allemptoel to be strictly drawil, it was cons dered,' that even where the parties lived in the same place, notice to the indorser, given the next day after the dishonour of the noré, would bave 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 lo be charged

(a) 1 Term Rep. 567.




against PARKER.

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 cir. cumstances, due regard being had to other business and w 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 io 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 Jatler in the nature of the regular post between the two countries.

In the last case on this subject, Haynes v. Birks (c); Lord Alcanley 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 wbich 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 bis bankers to present for payment, having been dishonoured in London about two o'clock on Saturday, and presented again at pine 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 deem. ed to be reasonable notice; and Lord Altanky 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 relurned hoine late un that day, he was not bound to send a special messenger to the defendant: if he inforined bin 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.

[ocr errors]
[merged small][ocr errors][merged small]

Lord ELLENBOROUGII, C. J. It comes to the point whe- 1805. ther I was right in telling the jury that the plaintill's bad till' DARB the next day after they received the notice of the bill's being against

PARKER. dishononred to communicate that notice to the drawer ; for it struck me, that if they were in tine to give notice on the 13th at Liverpool, they had the whole of that day, and having sent a leiter 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 10 send notice of the dishonour of a bill by the next post, where the parties do not live in the same fr 9.) place; and the s:

we 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 race 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 iminediately 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 pailed 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 reason.' able diligence in other concerns as well as in this, it would be a material question, if nearly raised, whether the party were bound to communicate by the next post the intelligence he had received by the post on the same day. I think, however, there is sufficient doubt in this case, whether rea. sonable diligence were used, to make it proper lo 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 B4


« ForrigeFortsett »