point the opinion of a special jury was invited by Lord Eldon in 40 Geo. III. His Lordship said the question resolved itself into one of usage: if it was left to the construction of law, the days would be reckoned consecutively, but if the evidence of usage were to be considered as clearly made out (and that evidence was brought forward and was contradictory), then Sundays and holidays would be excluded; and whereas, on the one hand, the plaintiff would have a verdict, on the other, i. e., if the Sundays and holidays were not reckoned, or, in other words, if the days were to be counted as working and not running days, the defendant would be entitled to recover. the jury found for the defendant (t). Many years afterwards, the case of Brown v. Johnson (u) occurred, and there appeared to be an absence of evidence as to the custom; upon which the Court were remitted to the original construction, which was, that the days should be considered as running, or consecutive, and not working days. The plaintiff, consequently, had a verdict for his demurrage (v). And Twenty running days in the whole, without any expressions to the contrary, would mean twenty running days at the port of freightage, and the same number at the port of discharge (w); and intermediate places must not be imported into the meaning of the contract (x). If there be an agreement to dispatch a ship with the first convoy within fourteen working days after her cargo is ready, and yet the freighter be allowed fifteen days of demurrage: this latter proviso places the freighter, if he avails himself of the demurrage, in the same position at the end of the twenty-nine days as he would otherwise have been at the end of the fourteen, and the plaintiff cannot recover for more than is due upon the days of demurrage (y). (t) 3 Esp. 121, Cochran v. Retberg and others. (u) Supra. (v) 10 Mees. & W. 331. Car. & M. 440, Brown v. Johnson. (w) 2 Chit. Rep. 578, Stevenson v. York. (x) 1 Esp. 367, Marshall v. De la Torre. 2 Ch. Rep. 578, Stevenson v. York. (y) 5 Taunt. 654, Connor v. Smythe. S. C. 1 Marsh. 276. What shall be said to A contract for demurrage in the case of a delivery of coals was held to include working days only, and not a wet day, during which no part of the cargo could be discharged (z). Nevertheless, when the usage of commercial men cannot be satisfactorily ascertained, the Courts will interpose and give their view of the matter at issue. Liberty was given to cruise for six weeks. The action in question was brought upon a policy of insurance, upon a ship licensed as aforesaid with letters of marque. It appeared that the ship had been bound from Liverpool to Antigua, and that the captain had not been guilty of any extravagant delay. But he had broken the continuity of the cruise. He had cruised and then given notice of discontinuance, and had then recommenced his cruise. And the Court held, that these six weeks were to be understood as in strict succession from the beginning of the cruise, otherwise the voyage might last for years. It was not said for forty-two days, but for six weeks. The verdict, therefore, which had passed against the underwriters, was set aside (a). So it was where an insurer was held liable who had insured a life from the day of the date. It was contended for him that this day must be exclusive, and Sir B. Shower offered to give evidence of the custom that policies should be so construed, but the Court overruled it, and judgment was given against the insurer (b). Time may also in commercial transactions, form the subject of a condition precedent. As where so much sponge was to be delivered upon condition of the defendant's delivery of ochre on or before the 24th of April. The plaintiff having failed to deliver the ochre, was held incompetent to sue for the non-delivery of the sponge (c). Bills of exchange must be presented within the usual banking (z) 2 New Rep. 258, Harper v. McCarthy. (a) 2 Dougl. 527, Syers and others v. Bridge. (b) Lord Raym. 480, Anon. S. C. 2 Salk. 625, nom. Sir Robert Howard's case. Holt's Ca. 195. 12 Mod. 256, nom. Fanshaw v. Harris. (c) 4 Bing. 280, Parker and another v. Rawlings. S. C. 12 Moore, 529. See 4 C. & P. 275, Maryon v. Carter, where a delay of four days, although the weather was bad, was held to prevent the plaintiff from receiving a sum of money agreed to be paid for a certain pavement. poses of hours (d). The presentment must be made at such seasonable be “day” for the purhours as a man is bound to attend, by analogy to the horæ juridica of the Courts of justice (e). The exception to this rule is, business. where a person has been stationed at the bank to give an answer to any application by presentment, in which case it might almost be considered, that, quoad hoc, the bank was not shut. Indeed, Lord Ellenborough likened such a case to a presentment at a merchant's, and observed, moreover, that if a person were in special attendance, a presentment might be made. at any time before twelve at night. The bill in question had been presented after banking hours, between seven and eight, and a boy returned for answer, "no orders" (ƒ). At a countinghouse, a presentment between six and seven in the evening was held reasonable, although no one was present but a girl to take care of it (g). So was a presentment at half past seven, although no one answered, and Littledale, J., said, he thought it was, at least, quite in time up to eight o'clock (h). A common trader is different from bankers, having no peculiar hours for paying or receiving money. Eight, in the evening, cannot be considered an unseasonable hour for demanding payment at the house of a private merchant who has accepted a bill (i). So at the office of an attorney between eight and nine in the evening (k). On the other hand, if a bill be dishonoured, notice at an early hour is a reasonable notice (1). (d) 6 Esp. 41, Parker v. Gordon. S. C. 7 East, 385. S. C. 3 Smith, 358. S. P. 15 Fast, 275, Hopley v. Dufresne. 1 M. & S. 28, Elford v. Teed. So is 2 Taunt. 224, by the Court. See 4 T. R. 170, Leftley v. Mills, contrà, but overruled. (e) 1 M. & S. 29, Lord Ellenborough, citing Marius. (f) 1 Stark. 475, Garnett v. Woodcock, and others. A rule for a new trial was refused. 6 M. & S. 44. S. P. 2 Ch. Rep. 124, Henry v. Lee. (g) 1 Stark. 114, Morgan v. Davison. (h) 1 Moo. & Rob. 41, Wilkins v. Jadis. A rule for a new trial was refused. 2 B. & Adol. 188. (i) 2 Campb. 527, Barclay v. Bailey, by Lord Ellenborough. 1 C. & P. 631, Triggs v. Newnham. S. C. 10 Moore, 249. Holt, N. P. C. 476, Bancroft v. Hall, a case of notice of dishonour. (k) Triggs v. Newnham, ut supra. (1) 19 Ves. 216, Ex parte Moline. As to bills of exchange, &c. becoming due on holidays. See ante, p. 101. Where there was a contract for stock, and the plaintiff tendered it on the day agreed upon, it was held, that he need not wait till the end of the day before he could sell it legally to a third person (m). If the condition of an obligation to abide by an award, so that it be made before the 1st day of May, and the award be accordingly made between six and seven o'clock, after sunset, this is within the condition. It is sufficient for the award to be ready within the natural day, and it is not like the payment of money to bind men to attend it (n). Indeed, the day for such a purpose is said to have continuance till midnight (o). So it was urged in argument, that although the payment of money must be before sunset, yet that an award would be good if made between ten and eleven at night (p); and it would be no objection that the condition was to deliver to the parties requiring the same, and that the night was not a reasonable time to require it (g). It was the opinion of Treby, C. J., that the day of payment of a bill of exchange, payable one day after sight, should commence after midnight, and that there should be thenceforth an entire complete day, consisting of twenty-four hours, to pay the bill. For, said the Chief Justice, a day to this purpose commences always at midnight, and always consists of twenty-four hours (r). And now, according to the custom of merchants, the time allowed is till five o'clock in the afternoon of the day when the bill is due (s). (m) 1 Smith, 420, Dorrien v. Hutchinson. (n) 20 Vin. Ab. Time, (A.), pl. 11, Church v. Greenwood. S. P. Raven v. Lytwin, 18 & 19 El. cited there. Cro. El. 43, Franklin v. Davies, cited. Ibid. case of Samms and others, cited Pasch. 26 Eliz., and admitted by the Court there in Green v. Ardene, Id. 42. S. P. Cro. El. 676, Withers v. Drew, 41 El. Sparrow's case, acc. is cited, Ibid., 33 El. But a summons upon a process quod reddat was held bad after sunset. Id. 42, Green v. Ardene. (o) Vin. Ab. ut supra. (p) 2 Andr. 39. (q) Vin. Ab. (Night). (r) 2 Lutw. 1593, by Treby, C. J., in Bellasis v. Hester; but the majority of the Court were against him concerning the computation as to bills payable at sight. See 1 Lord Raym. 280, S. C. (s) 2 T. R. 61. And livery made in the night under a letter of attorney to deliver seisin, has been said to have been adjudged good (t). Still where personal attendance is required, the night must be excluded. A tenant must be on the land all day in order to pay his rent, but he need not attend at night (u). And, therefore, a distress for rent service, or for a rent charge, must not be made in the night (v). Still it must be shewn that a tender was made at a convenient time before sunset (w). So it is of an attachment of cattle (x). Although, for damage feasant, a distress may be then made by reason of the necessity of the thing (y). If a tender be made at any period of the day to him who ought to receive it, and he refuse, the condition is for ever saved, and there need not be another tender before the last instant in order that the money may be counted before sunset (z). Under the 8 & 9 Wm. III. c. 27, s. 9, which required the Marshal of the King's Bench to produce a prisoner taken in execution after one day's notice in writing, it was held, that the Marshal had the whole of the day for the purpose, (no particular time being specified), and that he was not limited to twelve at noon (a). So it is in the case of a body rule. The sheriff has the whole of the day exclusive to bring in the body (b). There was a contract for the sale of certain tallow to the plaintiff, to be delivered in all December. The plaintiff succeeded upon (t) Cro. El. 43, per Fleetwood, arg. (u) 9 Rep. 66. (v) Co. Lit. 142. 7 Rep. 7. (w) See 1 Lutw. 590, Keating v. Irish. 2 C. & K. 666, Tunnicliffe v. Wilmot, and post, "Fraction of a Day." (x) Vin. Ab. (Distress), (O. 2), pl. 14. (y) 7 Rep. 7. 9 Rep. 66. (2) 5 Id. 114, Wade's case; and see 1 And. 252, Fabyan v. Rewmston. 2 Lutw. 1139, S. C. cited. (a) 10 Mod. 394, Parks v. Crawford. (b) Pr. Ca. 213, K. B. Anon. 6 D. P. C. 164, R. v. Sheriff of Middlesex. Tidd, 7th ed. 334. |