1842.

HAWKES

บ.

SMITH.

negligence on the part of the defendant he should shew that (b).

Platt, for the defendant, addressed the jury, and called witnesses to prove that the bones fermented very much during the voyage; and other witnesses, who proved, that they had known of cargoes of bones which had lost weight on a voyage to a greater extent than the bones in question.

Verdict for the defendant on the third

and fourth issues, and for the plaintiff on the other issues.

Goulburn, Serjt., and E. James, for the plaintiff.

Platt, and Bovill, for the defendant.

[Attornies-Willis & Co., and Jordeson.]

(b) In the case of Gilbart and Another v. Dale, 1 Nev. & P. 22, it was held, that in an action on the case against a booking-office keeper for the loss of a parcel by negligence, it is not sufficient evidence of negligence to shew, that the parcel was delivered to the defendant, and that it had not reached its destination; and Mr. Justice Patteson said, "Let us look at what the contract with the defendant is. The defendant is not a carrier, he is the keeper of a booking-office, and his contract with the plaintiffs is to take care of those goods left with him, that they

may be forwarded to their destination, either by coach or by some carrier; in other words, his contract is to deliver them to some carrier, in order that they may be forwarded. Now the contract of a carrier is to deliver to the consignee, and Griffiths v. Lee, (1 C. & P. 110,) is very good authority to shew that the non-delivery to the consignee is sufficient evidence of negligence against the carrier, for his contract is to deliver the goods." See the case of Griffiths v. Lee, 1 C. & P. 110, and the authorities there referred to.

1841.

COURT OF COMMON PLEAS.

Sittings in London after Michaelmas Term, 1841.

BEFORE LORD CHIEF JUSTICE TINDAL.

ISRAEL ALEXANDER and HENRIETTA ALEXANDER V.
BURCHFIELD.

DECLARATION-That the defendant, on the 10th of
March, 1840, made his draft on Young & Son, bankers,
and thereby required them to pay the plaintiffs 487. 16s. 6d.,
and then delivered &c.; and that Young & Son did not
pay the said draft, though the same was then presented
to them for payment. Pleas-That the defendant made
his draft aforesaid, directed as aforesaid, and that the
plaintiffs took it in payment, &c.; and that the draft was
not duly presented for payment, nor within a reasonable
and proper time in that behalf. Replication-That the
plaintiffs ought not to be barred &c., because they
that the said draft was duly presented, (concluding
the country).

say

to

house in Lom

bard-street, and accordingly the plaintiffs' bankers presented

ques

This was an action on a bankers' cheque, and the tion was, whether the cheque was presented in due time. The plaintiffs were auctioneers, keeping a repository for the sale of horses, &c. On the 10th of March, 1840, they had a sale, which the defendant attended, and he there bought two horses. The cheque, on which this action was brought, was given for the price of those horses. The last horse purchased by the defendant on that day was purchased after four o'clock on the after

the cheque to

the defend

ant's bankers whereas, otherwise, they

on the 12th,

would have pre

sented it at the
clearing-house
on the evening
of the 11th.
The defendant's

bankers had stopped payment on the with the rules of

12th-Held, that the bankers of the plaintiffs had acted in strict accordance mercantile law; but that the plaintiffs themselves had been guilty of laches in not paying the cheque to their bankers on the 10th, if they received it within banking hours.

1841.

ALEXANDER

v.

BURCHFIELD.

noon of the 10th of March, 1840, and the defendant applied then to have the horses delivered to him, and gave the cheque in question in payment. One of the plaintiffs, who was the auctioneer on the occasion, said, "It is rather late in the day for a cheque;" to which the defendant answered, "Cross it with your bankers' name, and pay it in tomorrow, and it will be all right." The auctioneer accordingly did write his bankers' name (Whitmore & Co.) across the cheque, and the horses were delivered to the defendant. On the next day, (the 11th of March, 1840), the plaintiffs paid the cheque into their bankers' house. The cheque was drawn upon a house of the name of Young & Son, bankers, in Smithfield. It was not the practice of Young & Son, that their clerk should meet the clerks of other bankers, at the clearing-house, in Lombard Street. It was proved, that cheques are presented, according to the course of business, at the clearing-house, for those who use the clearing-house, the same evening, and other cheques are sent out the day after they are received. Whitmore & Co. presented the cheque for payment to Young & Son on the 12th. The answer was "No order;" and Young & Son did not pay any thing after half-past nine on the morning of that day.

The witnesses, for the defendant, spoke to the hour of the sale being earlier than that mentioned, and also contradicted the evidence as to the special contract respecting crossing the cheque with the name of the plaintiffs' bankers.

Sir T. Wilde, for the plaintiffs, submitted, that they must have a verdict. The law was, that a man was entitled to pay his cheques into his bankers' hands, instead of putting himself to the inconvenience of presenting them in person; and he may present them at any time on the day after he receives them.

TINDAL, C. J.-I agree with you, that it is sufficient if they be presented at any time on the next day.

Sir T. Wilde. Then the effect of the plaintiffs' paying it in to their own bankers, instead of presenting it to the bankers of the defendant, is to prolong the presentment of it for another day; for the banker always has one day to present. There was, therefore, no unnecessary delay on the part of the plaintiffs.

TINDAL, C. J., in summing up. This is an action brought upon a cheque dated 10th of March, 1840; and the question raised for your consideration is, whether this cheque was presented to the parties, on whom it was drawn, in due and reasonable time? It was received by the plaintiffs on the 10th, and paid in to their bankers on the 11th, and by them presented in time, as far as their customer was concerned, viz. on Friday the 12th. Young & Co., on whom the cheque was drawn, were not persons who used the clearing-house. The question is, whether the cheque was presented in time, not being presented till Friday the 12th? The counsel for the plaintiffs has rested his case on two grounds: 1st, on the general law of merchants; and, 2ndly, on a particular agreement between the parties. If the particular agreement is made out to your satisfaction, it will dispense with the general law, whatever that law may be. The only way in which I can state the rule of law to you is this, that, if a party receive a cheque on a particular day, he may present it at any time during banking hours on the following day to that on which he received it. I am not aware of decision which any that a person may keep it all the first day, and on the second pay it in to his own bankers', and that they may present it on the third day. The cases which seem to bear upon this point relate only to the notice of dishonour, and not to the time of presentment. I cannot agree, that, if a bill becomes. due, say on the 1st of March, the holder may pay it in to his banker's on the 2nd of March, and that his banker will have till the following day, the third, to present it. It is good law as to notice, but I do not think that it is

says,

1841.

ALEXANDER

บ.

BURCHFIELD.

1841.

ALEXANDER

v.

BURCHFIELD.

applicable to the time for presentment of a cheque : but the question may be considered in the Court above, if it should become necessary.

Verdict for the defendant.

Sir T. Wilde, Humfrey, and Hoggins, for the plaintiffs. Channell, Serjt., F. V. Lee, and Fish, for the defendant. [Attornies-Lewis, and Robinson, Hine & Robinson.]

Second Sitting in Middlesex in Michaelmas Term, 1841.

BEFORE MR. JUSTICE ERSKINE.

Where, in an action by a

landlord against his tenant for

use and occupa

AGAR v. YOUNG.

THE declaration stated, that the defendant was indebted

to the plaintiff in 201. for use and occupation of certain messuages, &c., of the plaintiff by the defendant, at his tion, the tenant request used, &c.; and in 207. on an account stated. Plea, that the defendant did not promise in manner and form, &c. The particulars of demand were for 81. for use and occupation.

offers in evi

dence a document shewing that the land

lord's title has

ceased, the document is admissible, because the pro

On the 14th February, 1840, the plaintiff and defendant entered into an agreement for the lease of a piece of ground perty has passed adjoining the defendant's former residence, for the term of twenty-one years, at a rent of 81. a-year, to commence from the 15th March, 1840.

to another who has a right to

sue him for the same use and

occupation.

But when it ap

The land was duly measured, on the 14th February, pears, that, un- 1840, by the surveyor, in the presence of the defendant, and the defendant then moved his fence so as to inclose

der the docu

ment in ques

tion, the property would have

passed from the plaintiff before the time of the use and occupation for which he sued, the document is not admissible, on the usual legal maxim, that a tenant cannot deny his landlord's title. A tenant may not deny his landlord's title, because, if that title be bad, the tenant's first duty is to give up the possession which he received from the landlord, and not to defend an action against him.

A document indorsed in the plaintiff's hand-writing, and which the plaintiff had directed a witness to give to the defendant, is good evidence on the part of the defendant, although the instrument be not between the parties on the record.