1819.

Earl of SHREWSBURY against GOULD.

sonable construction for the Court to adopt. By the
first of these the lessor grants that, in case there
should be any opposition and other kilns should be
built by any other persons, so as to lie nearer to the
sale than the kilns of the lessee, it should be lawful for
him to erect a kiln within the enclosed lands belonging
to the earl, and to get limestone there; and in the
other clause the lessor was himself prohibited from
getting any limestone, even in his enclosed lands
which were not demised, and burning it into lime for
sale. So that it clearly appears that the object of this
lease was to secure to the lessee, as far as was possible,
the sole power of burning lime for sale; and it is not
unreasonable, therefore, that, he should covenant in
return for this, to burn lime,
to furnish the lessor with a
improvement of his estate.
Lord Shrewsbury reserved to himself the right of burn-
ing lime for the improvement of his estate seems to me
to be cumulative, and not to restrain this covenant of
the lessee. I think, therefore, that the lessee has no
right now to say that he chooses to get limestone, and
not to burn it into lime, and so to escape the perform-

ance of this covenant.

and, at the usual seasons, sufficient quantity for the The provision by which

If so, it follows that there

must be judgment for the plaintiff.

BAYLEY J. I am of the same opinion. The rule of law is, that a covenant is to be taken most strongly against the covenantor: in this case, the words of the covenant are general. It is not said that the lessee is to furnish lime at all times when he the lessee burns lime, but at all times and seasons of burning lime; which seems, therefore, to refer to known seasons for

that

that purpose; and it is probable that there are seasons
of the year when lime is more usually burnt than at
other times. It is said, that if the construction be cor-
rect, it will render the reservation in the previous part
of the deed wholly inoperative: but that is not so; for
by this covenant, the lessee is bound to furnish lime
only for the use of the lessor and his Staffordshire
tenants, and at the usual seasons. Now, it is very pos-
sible that he might want lime for the improvement of
his adjoining estates in the next county, or he might
want it not at the usual season, and in either of these
cases the reservation would become necessary; or it
might happen that after he had been once at the
of erecting kilns for that purpose, he might choose not
to purchase of the lessee, but to burn all his lime him-
self. I think, therefore, that the fair effect of the
reservation was to give him this option; and that no
valid argument can be deduced from it to shew that the
defendant is not liable upon the present covenant.

expense

HOLROYD J. I am of the same opinion. The covenant is not to be restrained by the reservation previously made in favour of the lessor; for that was only intended to give to him a more extensive right. If, indeed, it had been manifest in itself, or had appeared upon the record that there was no particular season for burning lime, it would have afforded a strong argument in favour of the defendant; for then it would, in fact, have been a covenant by the lessee to burn at all times and seasons when the lessor should please. But, for any thing that appears here, there may be particular seasons for burning lime; and in that case, there is no necessity for restraining this covenant.

BEST

1819.

Earl of SHREWSBURY

against GOULD.

1819.

Earl of SHREWSBURY against GOULD.

BEST J. If we were to decide against the plaintiff, we should not only violate the law, but do great injustice. The rent reserved is 107.; and the lessor covenants that he will not take limestone for the purpose of burning it into lime for sale, even in his own inclosed lands. The great and only advantage, therefore, which he was to derive under this lease was, that he should have lime burnt for himself and his Staffordshire tenants at a given price. Both the parties contemplated that all the limestone should be burnt into lime, and not sold in its raw state. The words of the covenant seem to me to imply, that there are particular seasons for burning lime; but if that were not so, then they may be supposed to have been intended for the purpose of giving the tenant a reasonable excuse, if at any time from accidental circumstances he should be unable to burn lime, and to supply the lessor with it.

Judgment for Plaintiff.

Friday,
May 7th.

Where the defendant, being indebted to the plaintiff, paid to him the debt in country

bank notes on

a Friday, seve

WILLIAMS against SMITH.

ASSUMPSIT for money lent and advanced by the plaintiff to the defendant, and the other money

counts. Plea, general issue. The cause came on for trial at the summer assizes 1817 for the county of

ral hours before Berks, when the jury found a verdict for the plaintiff

the post went

out, and the plaintiff transmitted them partly by a coach on Saturday and partly by Sunday night's post, and both parts arrived in London on Monday, and were presented for payment and dishonoured on the Tuesday: Held that the true rule is, that a party, in order to avoid laches, must give notice by the next day's post, and not by the next possible post; and that the plaintiff, in so transmitting these notes, had been guilty of no laches, and might consider them as no payment, and recover for the original debt.

for

for the sum of 490l., subject to the opinion of the Court upon the following case:

The defendant, being previously indebted to the plaintiff in the sum of 500l., on Friday the 8th of December, about nine or ten in the morning, at Wantage in Berkshire, where the plaintiff resides, paid to the plaintiff 4907. in notes of the Newbury old bank, and 10. in a note of the Wantage bank, and the plaintiff gave him a receipt for the 500l., on the back of the promissory note by which the sum was secured. The Plaintiff, on receiving these notes, instantly sent his son with 450l. worth of the Newbury notes to his bankers at the Wantage bank, with a direction to them to transmit the Newbury bank notes to London, to buy an exchequer bill: these were made payable on demand at the old bank, Newbury, and at the house of Messrs. Barnard and Dimsdale, London. Wantage is distant from Newbury eighteen miles, and it is a two-days' post from one place to the other. The post leaves Wantage for London at half-past five in the afternoon every day, except on Saturdays. The plaintiff's son took the above notes, amounting to 450l., to the Wantage bank, requesting Mr. Mattingley, one of the partners, to send them to London; but he said it would be dangerous, and therefore declined or refused to send them by the post on that evening to London, on account of the risk, which he did not choose to run; but offered to inclose them on the Saturday evening in their packet, which they usually sent in the course of their business as bankers two or three times a week by the coach to London, and which packet, he said, would be in London on Monday. This proposal was, after some negociation, ultimately acquiesced in; and 450l. worth of the New

bury

1819.

WILLIAM'S

against SMITH.

1819.

WILLIAMS

against SMITH.

bury notes were carried to the Wantage bank, on Saturday evening, by plaintiff's son, and by the Wantage bankers then cut in halves, and one set of halves inclosed in the packet of the Wantage bank, and transmitted on the same evening to go to London. They usually send their notes half by the coach and half by the post. The other set of halves was sent by the post on Sunday evening. The halves sent by the post were addressed to Messrs. Spooner and Attwood, bankers in London, who were the correspondents of the Wantage bank.

Wantage is distant from London sixty-three miles. The halves of the notes sent by the post arrived at Spooner and Attwood's, in London, between ten and eleven o'clock on the morning of Monday the 11th; and the packet containing the other halves was delivered to them somewhat later. The Newbury bank stopped payment on the Monday morning, and Messrs. Barnard and Dimsdale continued to pay all notes drawn by the Newbury old bank the whole of Monday the 11th, but not afterwards; and would have paid the notes in question, if they had been presented to them at any time on the said Monday. The notes in question were sent by Spooner and Attwood to Barnard and Dimsdale for payment, on Tuesday the 12th; but they were dishonoured. Notice of the Newbury bank having stopt payment was communicated to the plaintiff on the evening of Monday, and he thereupon sent his son to the defendant's house, and the son communicated the fact of such stoppage to the defendant's wife, at the house of the defendant, the defendant having gone to bed. The defendant, the same evening, said he would take the notes again and return them to a Mr. Lovelock, of whom he had taken them. On the Saturday following,