Bryden v. Bryden

11 Johns. 187 | N.Y. Sup. Ct. | 1814

Spences, J.

delivered the opinion of the court. Taylor, the holder of the bill, and the defendant, the endorser, both resided in the" city of Baltimore. The only evidence of the non-acceptance of the bill is the deposition of Taylor, who states that within three clays after the receipt of the letter advising him of the non-acceptance of the bill, he gave verbal notice thereof to the defendant. He also directed Payne, his clerk, who is since dead, to give notice to the defendant, who afterwards acknowledged to Taylor that he had received such- notice from Payne ; but when Payne • gave the notice does not appear. Tt is presumable, however, that it was after the notice given by Taylor. '

The question then is, whether notice to an endorser, given within three days after advice is received of the dishonour of a bill, where the parties reside in the same place, is reasonable notice. What is a reasonable notice in such case, is a mixed question of law and fact; but when the facts are ascertained, it becomes purely a question of law. This results from the necessity of having some fixed legal standard, by which men may not .only know the law, but be protected by it. This principle-is ~teitied in the Engtis1~ courts. (Kyd on Bills, (3d edit.) 127. an~ the cases cited.) In the case of Tindali v. Brown, (1 Term Rep. 167.) a bill was payable on the 5th October. The holder called on that day, ai~d on the 6th and 7th, on the acceptor. and was amused by fair promises. On the 7th October he gave no~ tice to the endorser, the parties living within 20 minutes' walk. The court held the notice too late, and, to enforce the law, granted a third trial. We have always required the earliest notice of the protest of a bill for non.acceptance, or non~pay~ ment.

The Chief Justice submitted the question of law and fact to the jury, with an intimation in favour of the plaintiff’s right to recover, when, in my judgment, he ought to have nonsuited the plaintiff, for not proving notice to the defendant, within a reasonable time. The transaction, it is true, is stale, and the de- . fendant has not pleaded the statute of limitation^; but the plaintiff can derive no benefit from these considerations. This laches ought not to work any prejudice to the .defendant, eir create any presumptions against him. There must bé' a new trial, Aíiá the costs are to abide tite event of the suit.

New trial granted.