11 Ala. 752 | Ala. | 1847
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 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
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.