Sidebilder
PDF
ePub

1805.

DARBISHIRE

against PARKER. [ 10 ]

which it was not in fact delivered till after the post-hour of delivery in Literpool

Grose, J. It was said by Lord Mansfield and Mr. Justice Buller, in Tindul v. Brown, that reasonable notice was a mixed question of law and fact; the situation and places of parties, the post hours, and other matters of that sort, are facts to be ascertained by the jury; but whether under such and such circumstances notice were given in reasonable time is a question of law, on which they ought to receive direction of the Judge. When it is said in the books that notice must be sent by the next post to a party living at another place, that cannot be taken literally in all cases, but must mean the next convenient, the next practicable post, It cannot be meant to apply to a case where the post goes out the next minute after advice received. But here the question did not turn on that; for if the plaintiffs were not bound to have written by the post of the same day, they should at least have written by the next day's post: instead of which it appears that they sent notice by a private hand, by means of which the delivery was delayed, and the opportunity lost of writing hy the London post the same night.

LAWRENCE, J. The question in this case is not Whether potice of the dishonour of a bill must be communicated by the next post after it is received ? but Whether the party may omit to make such communication for the two next posts ? for here it appears, that no notice was given to the drawer till after the time when the second post would have conveyed it. Whenever the general question shall arise, it will be fit, according to what was said by Lord Mansfield in Tindall v. Brown, to lay down, with as much certainty as possible, sume general rule with respect to the reasonableness of notice. The general rule, as collecled from that and other cases, seems to be with respect to persons living in the same town, that the notice shall be given by the pext. day; and, with regard to such as live at different places, that it shall be sent by the next post; but if in any particular place the post should go out so early after the receipt of the intelligence as that it would be inconvenient to require a . strict adherence to the general rule, then, with respect to a · place so circumstanced, it would not be reasonable to require the notice to be sent till the second pust. Consider

[11]

ing the immense circulation of paper in this kingdom, it is 1805. very material to have some general rule by which mien may DanaARS koow how they are to act in these cases; leaving parties in against particular cases, where compliance with such rule cannot

PARKER, be reasonably expected, to account for their non-compliance with the strict rule. When it is said to be strange that notice given the next day to persons living in the same towo should be sufficient, and yet that notice should be re, quired to be sent by the next post on the same day to per. sons living at another place, it must be considered not mere. ly when it is sent, but when it is received by the persons who are to act upon it. Murius, and other general writers, say that the notice ought to be transmitted by the next post after it is received ; tand what was said by sume of the Judges in Tindal v. Brown, and in other cases, agrees with this. As to whether reasonable notice be a question of law or fact, it must be recollected that the facts stated in the report of Tindal v. Browon were alterwards found in a spe, cial verdict, in which the jury did not find whether the notice were reasonable or not; on which special verdict this Court gave judgment for the plaintiff, and that judgment was unanimously confirmed in the Exchequer-chamber (a). But if reasonable notice were a question of fact and not of law, I am at a loss to know how those judgments are to be sustained; for the jury did not find the fact of reasonable [12 notice, but left that as a question of law, to be inferred from all the circumstances. But if it were a question of fact, there ought tu have been a venire de novo in that case. In Bell v. Wardell (b), where a custom was pleaded for the inhabitants of a town to walk and ride over a certain close of the plaintiff at all seasonable times, - what was to be .. deemed a seasonable time was considered to be a question of law, arising ont of all the circumstances; of which Lord C. J. Willes says, “the Court were the proper judges, as in the case of reasonable time, reasonable fines,” &c. “ For," he adds, “ what is contrary to reason cannot be consonant to law, which is founded on reason; and, therefore, the reason. ableness in these aod the like cases depends on the law, and is to be decided by the Judges.". And in the same case he

[blocks in formation]

1805. says, " issues may be joined on things which are partly mat

ters.of fact, and parily matters of law: and then, when the DARBISHIRE

against evidence is given at the trial, the Judge must direct the jury PANKER.

how the law is; and if they find contrary to such direction, it is a sufficient reason for a new trial.” And this is consonant to the universal practice on erials for crimes, e.g. murder, wherethe question is, Whether the facts in proof amount to murder or manslaughier? the Judge directs the jury, as it is stated in Oneby's case (a): “ If you believe such and such witnesses, who have sworn such and such facts, the killing the deceased was with malice propense express, or it was with malice implied, and then you ought to find the prisoner guilty of murder: but if you do not believe those witnesses, then you ought to find him guilty of manslaughter

only.” And the jury may give a general verdict of nurder [ 13 ] or manslaughter; “ but it'they will find the facts specially,

the Court is to form their judgment from the facts fouod,

whether there were malice or not, or whether the fact were · done on a sudden transport of passion, or were an act of deliberation or not.”

LE BLANC, J. Whether the plaintiffs ought to have sent notice of the dishonour of the bill to the drawer by the post of the 12th the same day they received the notice, or by the post of the next day, they bave failed in both respects; for they only sent it on the next day by a private conveyance; by which means it was not delivered till after it would have reached the drawer by the post. It is, therefore, unnecessary to determine the general question; but whenever that shall arise, the Court will hare to consider whether reason. able notice be a question of fact or of law. In the cases of Tindal v. Brown and Metcalf v. Hall (6), it was considered as a question of law, but dependent upon facte. If it should be considered to be the general rule of law that the holder is to send notice by the next post after he receives it; if he should not have done so, it will be for him to shew, when charged with laches, an excuse for the omission ; as that he lived too far from the post office, or tbat the post departed again too soon, or that he was unavoidably engaged in other business, which prevented him from writing by the very

(a) 2 Ld. Raym. 1485.-1494 .
(0) Tr. 12. Geo. 3. B. R. cited i Term Rep. 168, 408, 519.

[ocr errors]
[blocks in formation]

dext post ; and then the jury will have to consider the va lidity of such excuse in point of fact for bis non-compliance with the rule of law; but, it is material to have some general rule established, otherwise there may be one rule for estic mating what shall be deemed reasonable notice in London, and another at Bristol, and a third at Liverpool. . But after a general rule established, it will be material in each particular case for the party charged with laches, in not having complied with such rule, lo shew matter sufficient to excuse him from the laches.

Rule absolute (u).

(a) Whether reasonable notice be a question of law or fact, has been started in two other cases, which I have noted. One was

Hilton v. Shepherd, which first came on upon a motiou for a new trial in Where a billot Easter term 1796. It was an action by an indorsee against an indorser, tried exchange pass. before Lord Kenyon, C. J. at the sittings at Westminster; and the facts were, ed through the That one P. Pym, in London, drew the bill stated in the declaration, in the hands of Ave following form : " London, Sept. 19. 1795. Two monihs sster date pay the persons, all of order of Mr. Shepherd 261. 6s., valve received. P. Pym. Payable when whon lived in due at Messrs. Lockharts aod Co. Pall-Mall." The bill was iodorsed by the London or the defendaot to the plaintiff, by the plaintiff to William Buckler, by William neighbourhood. Buckler to Messrs. Fox and Payne, by them to James Scott, and by J. Scott and the bil to one Trimmer of White Friars, in whose hands it was when it became due. when dno being The defendant lived in Oxford street, and so did the plaintiff. Buckler lived dishonoured. in King-street, Cheapside ; Messrs. Fox and Payne in Henrietta-street, Co- the holder care vent Garden; and J. Scotl at Stratford, four miles from London. The bill notice on the became doe on Saturday 21st November (the three days grace evding on same day to the Sunday); and on the Saturday was presented for pa

av was presented for payment at Messrs. Lock- eth indorser . harts and Co. by Trianmer, but it was not paid ; and at 3 o clock of the same and he on the day Trimmer gave notice of the non-payment thereof to Scott at Stratford; next day to che on Sunday the 22d, at one o'clock, Scott gave the like notice to Messrs. Fox ath. an and Payne. Mr. Fox being then at Stratford; on Monday the 230, about the next dove tweise o'clock, Fox gave the like notice to Buckler; and at his desire, on the

dhe Tuesday morning, the 24th, at ten o'ɔlock, gave the like notice by letter to on

t day Hilton the plaintiff, in Oxford-street; and who, upon his return home from to the add the city, at twelve o'clock of the same day, sent a notice by letter to the de. fendant of the pon-payment of the bill ; and the defendant neglectint to pay day to the tot the same, the plaintiff brought the same action, and recovered a verdict by the Court the advice of Lord Kenyon.

of opinion, on a · Erskine moved to set aside the verdict, upon the ground of a misdirection case Endin by Lord Kenyon at the trial in point of law; he having stated to the jury These are

hat (whico * his Lordsbip bimself declared in court) that it was a question for due dilice them to consider, Whether, under the circumstances, the plaintiff had been had i

bad been used. guilty of any laches or negligence? which they had derermined in the negative, He contcoded, that whether the bill bad been presented within reasonable time or not, or whether notice of non-payment had been given to the drawer bat

qucein reasonable time, were questions of Jaw; and that upon the authority of in

ol due dili. Tindal v. Brown, 1 Term Rep. 167, his Lurdship ought to have told the jury:

ce was prothat they were hund to find for 1m defendant ; for in that case it was con

for 1. delendant ; for in mat case it was con per to be left to sidered, that police ought to be given to the drawer of non-paypient by the

i on acceptor by the next day, where the parties all lived in the same place, as his

he other here, or by the next post after the dishonouring, if they lived at a distance ; inde

gave po whereas here the bill became due on the 21st, and no notice was given to the defendant ull the 24th ; which was laches in point of law.

The Court then granted a rule ( shew cause, which came on to be heard on 15 Wednesday, April 27th, 1796, when Lord Kenyon reported the facis; aud concluded with saying that he bad left it to the jury, whether the plaintift

hud

1805. had been guilty of laches; who found that he had not been guilty of apy, and

gave a verdici for him, DARBISHIRE

Garrow and Russell shewed cause against that rule, contending that whco

ther the notice had been given in reasonable time or not, must, from the neagainst

cassity of the thing, be a question of fact for the consideration of the jury. PARIER.

It depended upon a thousand combinations of circumstances which could not be reduced to rule. If the party were takvo ill; if he lost his senses; if be were uoder duress, &c. how could laches be imputed to blm? Suppose he were prevented from giving notice within the time named by a physical impossibilliy ? Such a rule of law must depend upon the distance, upon the course of the post, upon the state of the roarts, upon accidents; all which it is absurd to imngine. Here the note had travelled through Ave different hands; and thought tbe law should presume that the holder knows the residence of the person from whom he immediately received it, yet he cannot be presumed to knuw the residence of the other indorsers. Therefore, in passing through so many hands, time must be consumed, though no laches can be imputed io any oue instance; and if due diligence were used in respeet of each particular traosaction, that cannot constitute laches upon the whole. The plaintiff was bound to pay the bill when callcd on, for he had Do means of ascertaining whether any of the antecedent holders had been guilty of laches:

Erskine, contra, again insisted upon the case of Tindal v. Brown ; that at

all events it was prima facie a want of due diligence where all the parties [ 16

lived so'near to cach other; and that the onus lay on the plaintiff, to shew that he was preveated by some incvitable accident from giving notice before.

Lord KEN YON, C. J. I cannot conceive how this can be a matter of law. I can understand that the law shonld require that due diligence shall be used, but that it should be laid down that the notice must be given that day or the next, or at any precise tine, under whatever circumstances, is, ( own, beyond my comprehension. I should rather have conceived, that whether due diligence bad or had oot been used, was a question for the jury to consider, under all the circumstances of accident, necessity, and the like. This, however, is a question very fit to be re-considered ; and when it goes down to trial again, I shall advise the jury to and a special verdiet. I find invincible objections in my own mind to censider that the rule of law requiring due diligence is tied down to the next day. The Court, therefore, granted a new trial, for the purpose of having the question of law more soleainly considered.

And, accordingly, at the next trial, the facts were drawn up in the shape of a case, and a verdict taken for the plaintiff, subject to the opinion of this Court on those facts, whether the plaintiff were entitled to recover. This was set down for argument in Michaelmas Term, 37 lieo, 3, and Russell was to bave argued for the plaintiff : but when the case was called on, no person appeared on the part of the defendant, and Russell informed the Court that

he understood that the defendant had abandoned his case ; whereupon the

: Court directed the postea to be delivered to the plaintiff. Dubr. by Lord The other case was Hopes v. Alder, M. 40, Geo. 3, B. R. which was an ac. Kenyon, whe. tion by the ipdorsee of a bill of exchange against tbe drawer. It appeared, ther the ques. upon Lord Kenyon's report, upon a inotion to set aside the verdict for the tion of reason- plaintiff, and to grant a new trial, that the bill when presented to the drawee able notice as was refused acceptance ; that potice of this dishonouring had been given by to the dishonour the drawee to ibe drawer the next day; but do such notice was given by the of a bill of ex. indorsee, the holder ; but that the drawer had no assets at the time in the change be not a hands of the drawee. And that, upon a meeting some lime alter, but before question of fact the action brought, between the indorsee (the plaintiff ) and the drawer (the to be submitted defendant) after the bill was become due, the defendant said he would sec to the jury in the bill paid. der all the cir. Erskine and Espinasse, in shewing cau: e, said that the rule, as to giving cumstances of notice, laid down in Tindall , Brown, 1 'lerin Rep. 167, namely, that it was the case. But a question of law, and was to be strictly enforced in point of time, was not tho' the holder warranted, and was powbere else to be fouod. But that, at any rate, do autico may have lost. bis remedy by lucbes, in not giving notice against the drawer, aod (such notice given by the drawee to the drawer the nexi day, will not suffice for notice by the holder) yet a subsequent promise to the hoider by the drawer that be will see the bill paiti, will support ag assumpsit,

( 17 ) :

« ForrigeFortsett »