Sidebilder
PDF
ePub

1805.

DARBISHIRE against PARKER.

[ 10 ]

[11]

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

GROSE, J. It was said by Lord Mansfield and Mr. Justice Buller, in Tindal 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 by the London post the same night.

LAWRENCE, J. The question in this case is not Whether notice 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, some general rule with respect to the reasonableness of notice. The general rule, as collected 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 next day; and, with regard to such as live at different places, that it shall be sent by the next post; but if in any particu lar 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 post. Consider

1805.

against. PARKER.

ing the immense circulation of paper in this kingdom, it is very material to have some general rule by which men may DARBISKIRB know how they are to act in these cases; leaving parties in particular cases, where compliance with such rule cannot 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 town should be sufficient, and yet that notice should be required to be sent by the next post on the same day to persons 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. Marius, and other general writers, say that the notice ought to be transmitted by the next post after it is received; and what was said by some 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. Brown were afterwards 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 to 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 out 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 reasonableness in these and the like cases depends on the law, and is to be decided by the Judges." And in the same case he

(a) Vid. 2 Term Rep. 86.

(7) Willes, 204, 6.

sa.,

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

says, " issues may be joined on things which are partly matters of fact, and partly matters of law: and then, when the evidence is given at the trial, the Judge must direct the jury 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 trials for crimes, e. g. murder, wherethe question is, Whether the facts in proof amount to murder or manslaughter? 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 murder or manslaughter; "but if they will find the facts specially, the Court is to form their judgment from the facts found, 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 have 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 have to consider whether reasonable notice be a question of fact or of law. In the cases of Tindal v. Brown and Metcalf v. Hall (b), it was considered as a question of law, but dependent upon facts. 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 that 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

(6) Tr. 12. Geo. 3. B. R. cited 1 Term Rep. 168, 408, 519.

next post; and then the jury will have to consider the va lidity of such excuse in point of fact for his non-compliance with the rule of law; but, it is material to have some general rule established, otherwise there may be one rule for estimating 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, to 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

1805.

DARBISHIR against PARKER.

[ 14 ]

Hilton v. Shepherd, which first came on upon a motiou for a new trial in Where a bill of Easter term 1796. It was an action by an indorsee against an indorser, tried exchange passbefore 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 months sfter date pay the persons, all of order of Mr. Shepherd 261 6s., value received. P. Pym. Payable when whom lived in due at Messrs. Lockharts and Co. Pall-Mall." The bill was indorsed by the London or the defendant 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 bill to one Trimmer of White Friars, in whose hands it was when it became due. when due 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 gave vent Garden; and J. Scott at Stratford, four miles from London. The bill notice on the became due on Saturday 21st November (the three days grace ending on same day to the Sunday); and on the Saturday was presented for payment at Messrs. Lock- 5th indorser, harts and Co. by Trimmer, 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 the on Sunday the 22d, at one o'clock, Scott gave the like notice to Messrs. Fox 4th, and he on and Payne, Mr. Fox being then at Stratford; on Monday the 23d, about the next day to twelve o'clock, Fox gave the like notice to Buckler; and at his desire, on the 3d, and he Tuesday morning, the 24th, at ten o'ǝlock, gave the like notice by letter to on the next day Hilton the plaintiff, in Oxford-street; and who, upon his return home from to the 2d, and the city, at twelve o'clock of the same day, sent a notice by letter to the de- he on the same fendant of the non-payment of the bill; and the defendant neglecting to pay day to the Ist; the same, the plaintiff brought the same action, and recovered a verdict by the Court were the advice of Lord Kenyon. of opinion, on a Erskine moved to set aside the verdict, upon the ground of a misdirection case finding by Lord Kenyon at the trial in point of law; he having stated to the jury these facts, that (which his Lordsbip himself declared in court) that it was a question for due diligence them to consider, Whether, under the circumstances, the plaintiff had been had been used. guilty of any laches or negligence? which they had determined in the negative. And Lord KenHe contended, that whether the bill bad been presented within reasonable you thought time or not, or whether notice of non-payment had been given to the drawer that the quesin reasonable time, were questions of law; and that upon the authority of tion of due dili Tindal v. Brown, Term Rep. 167, his Lordship ought to have told the jury gence was pro that they were bound to find for to defendant; for in that case it was con- per to be left to sidered, that notice ought to be given to the drawer of non-payment by the the jury; on acceptor by the next day, where the parties all lived in the same place, as which the other here, or by the next post after the dishonouring, if they lived at a distance: Judges gave no whereas here the bill became due on the 21st, and no notice was given to the opinion. defendant till the 24th; which was laches in point of law.

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

had

* [ 15 ]

1805.

DARBISHIRE
against
PARKER.

[ 16 ]

Dubr. by Lord Kenyon, whether the question of reasonable notice as to the dishonour of a bill of exchange be not a question of fact to be submitted to the jury under all the cir. cumstances of the case.

had been guilty of laches; who found that he had not been guilty of any, and gave a verdict for him.

Garrow and Russell shewed cause against that rule, contending that whe ther the notice had been given in reasonable time or not, must, from the necessity of the thing, be a question of fact for the consideration of the jury. It depended upon a thousand combinations of circumstances which could not be reduced to rule. If the party were taken ill; if he lost his senses; if be were under duress, &c. how could laches be imputed to him? Suppore he were prevented from giving notice within the time named by a physical impossibility? Such a rule of law must depend upon the distance, upon the course of the post, upon the state of the roads, upon accidents; all which it is absurd to imagine. Here the note had travelled through five different hands; and though the law should presume that the holder knows the resldence of the person from whom he immediately received it, yet he cannot be presumed to know the residence of the other indorsers. Therefore, in passing through so many hands, time must be consumed, though no laches can be imputed in any oue instance; and if due diligence were used in respeet of each particular transaction, that cannot constitute laches upon the whole. The plaintiff was bound to pay the bill when called on, for he had no 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 lived so near to each other; and that the onus lay on the plaintiff, to shew that he was preveated by some inevitable accident from giving notice before. Lord KENYON, C. J. I cannot conceive how this can be a matter of law. I can understand that the law should 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 time, under whatever circumstances, is, I own, beyond my comprehension. I should rather have conceived, that whether due diligence had or had not 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 find a special verdict. I find invincible objections in my own mind to consider 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 solemnly considered.

[ocr errors]

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. was set down for argument in Michaelmas Term, 37 Geo. 3, and Russell was This to have 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.

The other case was Hopes v. Alder, M. 40, Geo. 3, B. R. which was an action by the indorsee of a bill of exchange against the drawer. It appeared, upon Lord Kenyon's report, upon a motion to set aside the verdict for the plaintiff, and to grant a new trial, that the bill when presented to the drawee was refused acceptance; that notice of this dishonouring had been given by the drawee to the drawer the next day; but no such notice was given by the indorsee, the holder; but that the drawer had no assets at the time in the hands of the drawee. And that, upon a meeting some time after, but before the action brought, between the indorsee (the plaintiff) and the drawer (the defendant) after the bill was become due, the defendant said he would see the bill paid.

Erskine and Espinasse, in shewing cause, said that the rule, as to giving notice, laid down in Tindall ». Brown, 1 Term Rep. 167, namely, that it was But a question of law, and was to be strictly enforced in point of time, was not tho' the holder warranted,* and was nowhere else to be found. But that, at any rate, no notice may have lost.

his remedy by

laches, in not giving notice against the drawer, and (such notice given by the drawee to the drawer the next day, will not suffice for notice by the holder) yet a subsequent promise to the holder by the drawer that he will see the bill paiß, will support an assumpsit,

* [ 17 ]

Was

« ForrigeFortsett »