Imágenes de páginas

that it was a question of law for the judges, and

Darbishire and another v. Parker, 6 East's Rep. 3. The plaintiffs received at Manchester notice of the dishonour of a bill, between eight and nine o'clock in the morning of the 12th of August. The post from Manchester to Liverpool, where the drawer resided, set off between twelve and one o'clock at noon. They, however, sent no notice by the post of that, or the next day, but sent it by a private hand on the 13th, by which it was delivered about nine o'clock at night, two hours later than it would have arrived had it been sent by the post. Lord Ellenborough left it to the jury, whether reasonable notice had been given, and they found for the plaintiffs. A new trial was moved for, on the ground of a misdirection, and a rule nisi granted. The court, without entering into the general question, held that the case deserved reconsideration; inasmuch as the plaintiffs appeared, at all events, to have been guilty of laches, whether the notice should have been sent by the post of the 12th or by that of the next day, having failed in doing either. Rule absolute. In this case, Lawrence, J. on the general question, whether reasonable notice be a question of law or of fact, said, "It must be recollected, that the facts stated in the report of Tindal v. Brown were afterwards found in a special 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. 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 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 Ball v. Wardell, Willes, 204, 6. where a custom was pleaded for the inhabitants of a town to walk and ride over a certain close of the plaintiff's 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


yet in many instances since it has been treated as a question of fact for the jury. (37)

Upon a bill or note payable on demand or at sight, and given for cash by a person who makes the profit by the money on such bills or notes a source of his livelihood, it is difficult to say what length of time such person shall be entitled to consider unreasonable; but upon such bills or notes

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 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.

See also Anderson v. Royal Exchange Assurance Company, 7 East's Rep. 43., in which Lord Ellenborough, in speaking of the time within which the assured may abandon the property insured, says, " an abandonment must be made within a reasonable time; and I rather conceive that it is the province of the judge to direct the jury as to what is a reasonable time under the circumstances." See also Bateman v. Joseph, post. See also Co. Litt. 56.b. Reasonable time shall be adjudged by the discretion of the justices before whom the cause dependeth: and so it is of reasonable fines, customs, and services, upon the true state of the case depending before them; for reasonableness in these cases belongeth to the knowledge of the law, and therefore to be decided by the justices." "For nothing that is contrary to reason is consonant to law."

(37) See Fry v. Hill, ante, p. 183. note (28). and Goupy

given by way of payment, or paid into a banker's, any time beyond what the common course of business warrants (38), is.

Upon a bill or note of this kind given by way of payment, the course of business seemed formerly to allow the party to keep it, if it was payable in the place where it was given, until the (39) morn

(38) See Turner v. Mead, infra, note (39). (39) Ward v. Evans, Ld. Raym. 928. A banker's note was paid to the plaintiff's servant at noon, and presented for payment the next morning, at which time the banker stopped payment. On a case reserved, the court held it was presented in time; and judgment was given for the plaintiff.

Moor v. Warren, Str. 415. The defendant gave the plaintiff a banker's note at two o'clock in the afternoon, and he tendered it for payment the next morning at nine: the banker stopped a quarter of an hour before; and Pratt C. J. told the jury the loss should fall on the defendant, there being no laches in the plaintiff, who had demanded the money as soon as was usual in the course of dealing, and that keeping the note till next morning, could not be construed giving a new credit to the banker; and the jury found for the plaintiff. In Holmes v. Barry, Str. 415. the circumstances were the same; and King C. J. of the Common Pleas, gave a similar direction, and the jury found accordingly.

Fletcher v. Sandys, Str. 1248. A banker's note was paid to the plaintiff after dinner, and he sent it for payment the next morning, but the banker had stopped payment; and Lee C. J. ruled that there were no laches in the plaintiff, and that in all these cases there must be a reasonable time allowed, consistent with the nature of circulating paper.

Turner and others v. Mead, Str. 416. The defendants paid the Sword Blade Company (the plaintiffs) two banker's notes at three o'clock in the afternoon; and the next morning their servant left them at the banker's, in order to call for the money

ing of the next day of business after its receipt, and till the next post, if payable elsewhere; but (40) not longer.

in the evening, it then being the custom with the plaintiffs and the bank to send out their notes in the morning and to call for the money in the afternoon. The plaintiffs' servant called for the money between four and five in the afternoon, and the banker had just stopped payment; and because the plaintiffs had done nothing more than was usual in leaving the notes in the morning without taking the money, Pratt C. J. directed the jury to find for them, which they did.


Hoar v. Da Costa, Str. 910. The defendant paid the plaintiff a banker's note at twelve: he put it into the bank at one, and at ten the next morning the runner from the bank carried it with other notes, and left them, as was then usual, to call again for the money he called at eleven, and was told the banker's servant was gone to the bank: he called again at two, when the banker said he was going to stop, and refused payment; but he paid small notes till four o'clock. The defendant gave notice to the plaintiff the next morning: the question was, whether this note was payment to the plaintiff. It was insisted for the defendant, that if the note had been tendered by itself it would have been paid; and for the plaintiff, that if there had been no demand there would have been no laches, being within a day after the receipt. Raymond C. J. said there was no standing rule, and left it to the jury, who found for the plaintiff.

(40) Manwaring v. Harrison, Str. 508. On Saturday the 17th of September, about two o'clock, Harrison gave Manwaring a banker's note, dated the 5th of September, and payable to Harrison or order on demand; Manwaring paid it away the same afternoon to J. S., and he presented it for payment on the Tuesday morning as soon as the shop was open: but the banker stopped payment at that time. Manwaring paid the money to J. S., and brought this action to recover it from Harrison. Pratt C.J. left it to the jury, whether there had been any neglect; and observed, that as Harrison had kept it eleven days, he probably would not have demanded payment sooner than

Thus where a note of this kind, payable in London, was given there in the morning, a presentment the next morning was held (41) sufficiently early; a presentment at two the next afternoon too (42) late.

In (43) a later modern case, where a similar note was given in London at one, and not presented

J. S. did. The jury wished to leave it to the court whether there had been a reasonable time: but the Chief Justice told them they were the judges of that; upon which they found for the defendant, and gave it as their opinion, that a person who did not demand a banker's note in two days, took the credit on himself.

East India Company v. Chitty, Str. 1175. At half past eleven in the morning of the 18th of January, the defendant paid the East India Company's cashier a banker's note, and they did not send it for payment till the next day at two, at which time the banker stopped payment. The question was, who should bear the loss? and upon examining the merchants, it was held, that the company had made it their own by not sending it out the afternoon they received it, or at furthest the next morning; and the jury found accordingly for the defendant.

(41) Ward v. Evans, Moore v. Warren, Holmes v. Barry, Fletcher v. Sandys, ante, p. 190. note (39).

(42) East India Company v. Chitty, supra.

(43) Appleton v. Sweetapple, B. R. M. 23 Geo. 3. A bill payable in London on demand was given to the plaintiff in London at one o'clock in the afternoon, and he did not present it till the next morning; the question was, whether he presented it in time? Lord Mansfield left the point to the jury, who found for the defendant; but the court granted a new trial, because the question was a matter of law upon which the judge should have decided; the jury found again for the defendant, but against the judge's direction; a second new trial was granted, and the jury again found for the defendant; and then the court refused to interfere.

« AnteriorContinuar »