2

notice to each; but it is now expressly decided that he has in general but one day to give notice to all the parties against whom he intends to enforce his remedy, though each of the indorsers in turn has his day, and though the holder may avail himself of a notice duly given by any other party to the bill. Again, the holder of a cheque, or of a bill or note payable on demand, must present the instrument for payment on or before the day following that on which it was received; for the judges have put this construction upon the term "reasonable time" within which the instrument must be presented.3

5

§ 31. This last rule applies, not only as between the parties to a § 28 cheque, but as between banker and customer, unless circumstances exist from which a contract or duty on the part of the banker to present at an earlier, or to defer presentation to a later period, can be inferred. But the rule does not apply to cases where the action is brought by the holder of a banker's cheque against the drawer, unless during the delay the fund has been lost, as by the failure of the banker. When the rule is applicable, it matters not, so far as the liability of the drawer is concerned, whether the instrument be presented for payment by the party himself or by his banker; and, therefore, when an uncrossed cheque, given to a gentleman on the 10th of March, was paid into his bankers' on the 11th, and was presented by them on the 12th to the bankers on whom it was drawn, and who had stopped payment early in the morning, the Court held

6

1 Rowe v. Tipper, 13 Com. B. 249; Dobree v. Eastwood, 3 C. & P. 250. See, however, Gladwell v. Turner, 39 L. J., Ex. 31; 5 Law Rep., Ex. 59, S. C.

2 Chapman v. Keane, 3 A. & E. 193; 4 N. & M. 607, S. C.; Rowe v. Tipper, 13 Com. B. 256, per Jervis, C. J.

3 Rickford v. Ridge, 2 Camp. 539; Boddington v. Schlencker, 4 B. & Ad. 752; Moule v. Brown, 4 Bing. N. C. 266. See Bailey v. Bodenham, 16 Com. B., N. S. 288; 33 L. J., C. P. 252, S. C.

4 See Hopkins v. Ware, 4 Law Rep., Ex. 268.

Hare v. Henty, 30 L. J., C. P. 302; 10 Com. B., N. S. 65, S. C. See Prideaux v. Criddle, 4 Law Rep., Q. B. 455; 38 L. J., Q. B. 232; 10 B. & S. 515, S. C.

Robinson v. Hawksford, 9 Q. B. 52; Serle v. Norton, 2 M. & Rob. 401, per Ld. Abinger, 404, n. a; Laws v. Rand, 27 L. J., C. P. 76; 3 Com. B., N. S. 442, S. C. Here no time less than six years is deemed unreasonable.

that the payee could not recover the amount of the cheque from the drawer, as the presentment for payment had not been made within a reasonable time, and the bankers at the time of their failure had sufficient funds of the drawer's to pay the cheque.1 Had the payee in this case stipulated that his bankers' names should be crossed upon the cheque, or had the drawer discounted his cheque in the country, the result would have been otherwise, for the drawer would then have been considered as agreeing to the arrangement that the necessary course of presentment through a banker should be observed, and the steps actually taken were clearly in conformity with such course.2

3

§ 32. The judges have also, with respect to the presentment of § 29 bills for payment, taken upon themselves to decide, as a question of law, what constitutes reasonable hours, and have held that if an instrument be payable at a banker's, it must be presented within banking hours; if elsewhere, at any time when the drawer may be expected to be found at his place of residence or business, though it be as late as eight or nine o'clock in the evening. If, indeed, the banker appoints a person to attend at the office after banking hours for the purpose of returning an answer to a presentment, and such person does return an answer before midnight, no objection can be taken to the unreasonableness of the hour when the presentment was made; and the same rule would seem to prevail if the bill be personally presented to the acceptor before twelve o'clock at night on the day that it falls due. So, a demand or tender of rent on the land must, in order to create or avoid a forfeiture, be made before sunset, this being a rule of convenience adopted by the law to prevent the necessity of one party waiting for the other till midnight. But if the tenant

5

1 Alexander v. Burchfield, 7 M. & Gr. 1061.

2 Id., 1066, 1067, per Tindal, C. J. See 39 & 40 V., c. 81; and Heywood v. Pickering, 9 Law Rep., Q. B. 428; 43 L. J., Q. B. 145, S. C.

3 Parker v. Gordon, 7 East, 385; Elford v. Teed, 1 M. & Sel. 28.

S. C.;

Jameson v.

4 Wilkins v. Jadis, 2 B. & Ad. 188; 1 M. & Rob. 41, Swinton, 2 Taunt. 224; Barclay v. Bailey, 2 Camp. 527, per Ld. Ellenborough. 5 Garnett v. Woodcock, 6 M. & Sel. 44; 1 Stark. R. 475, S. C.

6 See 6 M. & Gr. 624–626, per Parke, B.

actually meet the lessor, either on or off the land, at any time of the last day of payment, and tender the rent, it will be sufficient, provided there was time before midnight to receive and count the money tendered.1

§ 33. The law as to the delivery of goods within reasonable hours § 29 was much discussed in the case of Startup v. Macdonald.2 There the defendant had agreed to purchase certain oil of the plaintiffs, to be delivered within the last fourteen days of March, and the action was brought for not accepting it according to the contract. The defence was that the oil was tendered on the 31st March at nine at night, which was an unreasonable hour. The jury found by a special verdict that the oil was tendered at half-past eight at night on a Saturday; that there was full time for the plaintiffs to have delivered, and for the defendant to have examined, weighed, and received the whole before Sunday morning; but that the time of tendering was unreasonably late. Upon this verdict the Court of Common Pleas gave judgment for the defendant; but the judges of the Exchequer Chamber (Lord Denman dissentiente) reversed the decision. Mr. Justice Patteson observed, "It may be conceded that the defendant was not bound to be on his premises ready to receive the oil after the usual hours of business; and if he had gone away, and the plaintiffs had afterwards come, and been unable to make a personal tender, they must have suffered for their delay; but as the defendant did wait, and as the tender was made in time to complete the delivery within the time specified, the unreasonableness and impropriety of the time, whatever those words mean, form no answer to the action for not accepting the oil." 3 Mr. Baron Alderson used language to the same effect, and thus laid down the general rule: "Wherever, in cases not governed by peculiar customs of trade, the parties oblige themselves to the performance of duties within a certain number of days, they have until the last minute of the last day to perform

1 Startup v. Macdonald, 6 M. & Gr. 619, 620, per Patteson, J.; 622, per Alderson, B.; 625, 626, per Parke, B.

26 M. & Gr. 593, in Ex. Ch., reversing the judgment of the Court below, as reported in 2 M. & Gr. 395 ; and in 2 Scott, N. R. 485.

36 M. & Gr. 620.

4 Id. 621, 622.

their obligation. The only qualification that I am aware of to this rule is, that in acts requiring time in order that they may be completely performed, the party must, at all events, tender to do the act at such period before the end of the last day, as, if the tender be accepted, will leave him sufficient time to complete his performance before the end of that day. In the case of a mercantile contract, however, the opposite party is not bound to wait for such tender of performance beyond the usual hours of mercantile business, or at any other than the usual place at which the contract ought to be performed. The party, therefore, who

does not make his tender at that usual place, or during those usual hours, runs a great risk of not being able to make it at all. In this case the plaintiffs have had the good fortune to meet with the defendant, and to make a tender to him in sufficient time. And I think, under these circumstances, that the defendant was bound to accept the goods, and is liable in damages for not accepting them."1

§ 34. Again, a reasonable notice to quit a yearly tenancy has § 30 for centuries received a legal construction, as meaning a six calendar months' notice, to terminate at the expiration of the current year: and when the tenant holds different portions of the premises from different days, it has been further decided, that the notice refers to the day of entry on the substantial subject of the holding. The

3

16 M. & Gr. 622, 623. See also the luminous judgment of Parke, B., id.

623-626.

2 Doe v. Spence, 6 East, 123, per Ld. Ellenborough. It is still a moot point in the Superior Courts, whether, in the absence of evidence of a contract or usage, a week's notice to quit is necessary to determine a weekly tenancy. See, and compare, Jones v. Mills, 10 Com. B., N. S. 788; 31 L. J., C. P. 66, S. C.; Huffell v. Armitstead, 7 C. & P. 56, per Parke, B.; and Towne v. Campbell, 3 Com. B. 921. In the County Courts, however, this question has been settled in the affirmative for the last thirty years. It seems, too, that if the hiring be monthly, a month's notice will be necessary; and if the hiring be quarterly, a quarter's notice will be necessary; Towne v. Campbell, 3 Com. B. 921, per Coltman, J. See also Kemp v. Derrett, 3 Camp. 510, per Ld. Ellenborough ; Right d. Flower v. Darby, 1 T. R. 162, per Ld. Mansfield; Bridges v. Potts, 33 L. J., C. P. 338; 17 Com. B., N. S. 314, S. C.

3 Doe v. Snowdon, 2 W. Bl. 1224; Doe v. Spence, 6 East, 120; Doe v. Watkins, 7 East, 551; Doe v. Rhodes, 11 M. & W. 600. In this last case the

Agricultural Holdings Act, 1875, has, however, interfered with this time-honoured rule; and provided the holding be either agricultural or pastoral, or both, and be at least two acres in extent, a year's notice, "expiring with a year of tenancy," has now become necessary in every contract beginning after the 13th of February, 1876, unless the landlord and tenant shall have agreed in writing on a different period. Nay, a year's notice will also be necessary with respect to tenancies current on the 14th of February, 1876, unless, within two months from that date, either of the parties interested shall have given a written notice to the other that he declined to adopt the new-fangled rule. In the case of domestic servants,-which term has been held to include huntsmen, and head-gardeners,5-a reasonable notice to quit is a calendar month's warning; but it must be borne in mind that this rule is inapplicable to farm servants,7 clerks, travellers, governesses,8 housekeepers in large hotels, and the like. So, the reasonable period during which a member of Parliament is entitled to freedom from arrest on a ca. sa. has, for at least two hundred years, been fixed at forty days before and after each session, the rule being the same in the case of a dissolution as in that of a prorogation.10 In all these cases, the question being decided by a precise rule of law, is entirely withdrawn from the consideration of the jury.

6

9

§ 35. Again, the reasonable time for which a party charged with § 30 an indictable offence may, in England or Ireland, be committed for re-examination is now limited by statute to eight clear days,

question raised, but not decided, was whether, where a tenant held a farm from
year to year, the land from 2 Feb., the house from 1 May, a notice to quit
the whole, given half a year before 2 Feb., was sufficient to entitle the landlord
to recover the whole in ejectment, on a demise dated 3 Feb. The inclination
of Ld. Abinger's opinion appears to have been in support of the affirmative.
1 38 & 39 V., c. 92, § 58. See also 39 & 40 V., c. 63, Ir., as to the cor-
responding law in Ireland.
$51.
3 § 57.

2

4 Nicoll v. Greaves, 33 L. J., C. P. 259; 17 Com. B., N. S. 27, S. C. Nowlan & Ablett, 2 C. M. & R. 54.

Nowlan v. Ablett, 2 C. M. & R. 54; Fawcett v. Cash, 5 B. & Ad. 904 ; 3 N. & M. 177, S. C. 7 Lilley v. Elwin, 11 Q. B. 742.

Todd v. Kerrick, 8 Ex. R. 151. See post, § 177.

9 Lawler v. Linden, I. R. 10 C. L. 188.

10 Goudy v. Duncombe, 1 Ex. R. 430.