Brown v. Turner

| Ala. | Jan 15, 1847

ORMOND, J.

The plea that the process was not served was clearly bad. The court must of necessity give credence to the acts of its own officers, otherwise it would be impeded at every step by the trial of collateral issues. If any injury is thereby caused to the party, he must seek redress in an-' other mode. [Crafts v. Dexter, 8 Ala. 769.]

The suing out of an ancillary attachment, whilst a cause is in progress, has no effect whatever on the suit then in progress, further than to provide the means of satisfying the judgment, if one is obtained.

It is objected that days of grace are not allowed upon such a bill as this, and that therefore the presentment for, and demand of payment were made too late. The act of 1828 provides, “ that hereafter the' remedy on bills of exchange, foreign and inland, and on promissory notes payable in bank, shall be governed by the rules of the law merchant, as to days of grace, protest and notice ; and bills drawn and payable within this State, shall be deemed inland bills; and those drawn here and payable out of this State, shall be deemed foreign bills.” [Dig. 383, § 11.] This then is an inland bill of exchange; payable nine months after sight, and it is well settled, that the time is to be computed from the daté of its accptance, or presentment for sight. [Campbell v. French, 6 Term, 200; Sturdy v. Henderson, 4 B. & A. 592.] It is equally clear, that such bills are entitled to days of grace. This bill being shown for sight, and accepted on the 9th February, 1844, fell due on the 9th November after, and adding the days of grace, it was properly presented for payment on the third day of grace, which was the 12th November, 1844.

It is further urged, that the averment in the declaration, of notice of the dishonor of the bill is insufficient, and we are of that opinion. The bill, as we have seen, was payable on the 12th November, and the averment of the declaration is, that notice was given to the drawer, at his residence, Washington county, on the 27th November. A notice of the fact of the dishonor of the bill, would have been sufficient if put inso the post office addressed to the drawer at his post office, the day after the refusal to pay the bill, or the first mail thereafter; but it is neither necessary or customary, when notice has been given, to state the facts. The usual averment is, that due notice was given of the dishonor of the bill, under which the proof may be made. [Firth v. Thrush, 8 B. & C. 387.] Here we infer from the allegation, that notice was given personally to the defendant, at his residence, which, if given in a reasonable time, would have been sufficient. But in our opinion, fifteen days is not a reasonable time, within which to give notice to a person in Washington county, of the dishonor of a bill in Mobile. If there had1 been any sufficient reason for this long delay, it should have been averred in the declaration, or at least proved on the trial.

What is a reasonable time within which to give notice, is a question of law when the facts are detailed. [Darbishire v. Parker, 6 East, 3.] We know judicially, that Washington is the adjoining county to Mobile, .and that therefore the in-" terval which was suffered to elapse between the dishonor of the bill and the notice, was unreasonable.' In the case last eited, it was held, that where there was a general post, notice by a special messenger, not communicated, until after the hour when it would have been received by the post, was insufficient. Whether this position would be true in any other case, than between two commercial places, we need not now consider. It is certainly true however, that when notice is necessary to' be given, it is the duty of the party to give it in a reasonable time, and that cannot be considered reasonable which takes five or six times longer than the same information could be carried by the mail.

Without considering the first charge moved for, it is clear the court erred in refusing to instruct the jury, that if sufficient notice was not given, the plaintiff could not recover, * without proving the drawer had no funds in the hands of the acceptor-

The judgment of the circuit court must be reversed, and the cause remanded, that it may be sent back to the county court, for further proceedings.