K. B. (AT NISI PRIUS) HILARY TERM.

WISSEN v. ROBERTS.

1795.

(1 Epinasse, 261-262.)

Feb. 1.

ster.

Where by mistake payment of a bill had been demanded from the At Westminacceptor the day before it became due, in an action against the drawer he shall be nonsuited, the demand being premature.†

[261]

THIS was an action of assumpsit, against the defendant, as the drawer of a bill of exchange.

Plea of the general issue.

To prove a demand of payment of the bill from Yates, the acceptor, the plaintiff called the notary by whom it had been made: on producing the bill to him, it appeared that it had been noted as demanded, on the 3rd of February; and he admitted that it had been demanded on that day.

Lord KENYON said, that the plaintiff must be called-that the bill did not become payable until the 4th of February, which was allowing the three days of grace, after the first of that month when the bill became due; and that non-payment by the acceptor on the day before the bill became due, was not such a default in him, as could authorise the holder to have recourse to the drawer. The plaintiff was nonsuited.

Erskine and Bayley for the plaintiff.

Wigley for the defendant.

SHIRLEY v. NEWMAN.

(1 Espinasse, 266-267.)

[262]

1795.

Feb. 14.

[266]

Where rent is reserved quarterly, it does not dispense with the neces- At Guildhall. sity of six months't notice to quit. But when three months' notice only were given, and the lessor neither expressed an assent or dissent to the accepting it, and took the rent up to the time when the tenant quitted, it shall be taken as a waiver of the regular notice to quit, and an acquiescence on the part of the lessor.

ASSUMPSIT for use and occupation.

Plea of the general issue.

+ Rouquette v. Overmann (1875) L. R. 10 Q. B. 525, 542; 44 L. J. Q. B. 221; Bills of Exchange Act, 1882, s. 14, s. 45 (1).

R.R.-VOL. V.

Now a year, in agricultural holdings, under the Act of 1883, 46 & 47 Vict. c. 61, s. 33.-R. C.

3 B

SHIRLEY

t.

NEWMAN.

[ *267 ]

The defendant had been tenant to the plaintiff from year to year, commencing at Lady-day; the rent was payable quarterly: at Christmas the defendant gave notice that he would quit the premises at the Lady-day following; the circumstances as proved on his part were, that this notice to quit had been left at the house of the person who received the rents of the estate; that he had put it on his file of notices, and had neither expressed his assent or dissent to the accepting it as a notice to quit.—The rent was paid up to Lady-day, when the tenant quitted; and the action was for rent accruing subsequent to that time.

The defendant relied on two grounds: first, That the rent being payable quarterly, that a quarter's notice to quit was sufficient; but secondly, That if by law it was not sufficient, that the defendant's acceptance of the notice to quit at the end of three months, and that being at the end of the year, was a waiver of the notice, which by law would otherwise be necessary.

It was answered by the counsel for the plaintiff, that the manner of paying the rent made no alteration as to the tenancy, which was from year to year; and that it therefore was incumbent on the defendant to have given half a year's notice of quitting, as was required by law, in cases of such holdings. As to the second point, they insisted that the tacit receipt of a notice, without any evidence of acquiescence on the part of the plaintiff, could not be construed into a waiver of the regular notice.

Lord KENYON said, that the tenancy was from year to year; and that in such cases no notice short of six months, and determinable with the year was sufficient; and that the mode of payment of the rent, whether half-yearly or quarterly, was a collateral matter, and no dispensation or qualification of the regular six months' notice required by law: but his Lordship added, that by agreement, the parties might dispense with the notice, and the acquiescence of the parties was presumptive evidence of such agreement; and he was of opinion, that in this case there was evidence of acquiescence, as the plaintiff had received the notice to quit at the end of three months, and never

expressed to the defendant any dissent whatever, which he thought he should have done, if he had meant to have refused his assent to the defendant's quitting according to the notice.

Erskine and Shepherd for the plaintiff.

Mingay for the defendant.

BROWN v. M'KINALLY.†

(1 Espinasse, 279–280.)

Where a party sued on a claim pays it voluntarily, he cannot recover the money in assumpsit, though at the time he pays it, he declares that he pays it without prejudice to his right to recover.

ASSUMPSIT for money had and received.

Plea of the general issue.

The plaintiff and defendant being in the same line of business, entered into an agreement, by which the defendant agreed to sell the plaintiff all his old iron, except bushel-iron, which was of an inferior quality, at 91. per ton.

The iron he delivered was mixed iron, of an inferior value, being part bushel-iron, and charged the full value of the best sort the plaintiff objecting to the charge, the defendant now brought an action for it. The plaintiff paid the full demand so made on him, at the same time telling the defendant, that he did it without prejudice; and meant to bring an action to recover back the overplus so paid.

This action was brought for that purpose.

When the case was opened by the plaintiff's counsel, Lord KENYON Said, that such an action could not be maintained. That to allow it, would be to try every such question twice; for that the same legal ground that would entitle the plaintiff to recover in the present action, would have been a good defence to the action brought against him by the present defendant; at which time and in which manner he should have proceeded: that money paid by mistake was recoverable in assumpsit; but here it † See Davis v. Hedges (1871) L. R. 6 Q. B. 687, 692, 40 L. J. Q. B. 276, 25 L. T. 155.-R. C.

1795. Feb. 17.

[ 279 ]

BROWN

was paid voluntarily, and so could not be recovered under the M KINALLY. circumstances of this case.

[280]

Erskine and Reader for the plaintiff.

Garrow for the defendant.

1795. Dec. 17.

[412]

[ *413 ]

K. B. (AT NISI PRIUS) MICHAELMAS TERM.

LEIGH v. MATHER.

(1 Espinasse, 412-413.)

Where a ship is insured "to

and until moored twenty-four hours in safety," the risk terminates on the ship arriving and voluntarily remaining so moored at any port within

THIS was an action on a policy of insurance on the ship Palliser, at and from Georgia to Jamaica, and till moored twentyfour hours in safety. The policy was on the ship and goods. The ship sailed from Georgia, and arrived at Montego-Bay, in the island of Jamaica. She remained there for nearly a month, and then sailed for St. Ann's, in that island, and was lost in her passage thither.

The defence was, that the policy ended on the ship's arrival at Montego Bay and remaining there twenty-four hours, and that the loss was therefore not within the policy, it having happened after her departure.

Erskine, for the plaintiff, contended, that the policy being in general terms "to Jamaica," that it meant to include all the ports in that island to which any part of her cargo was to be delivered; and contended, that it was matter of evidence to shew to what *port, in fact, she was bound. He contended, that in this respect there was a difference where the policy was on the ship and on goods, and that the policy would cover the latter, though not the former.

Lord KENYON said, that where a ship is insured to any particular port of delivery, if, by stress of weather, she is forced into

a different port, and there discharges part of her cargo, and afterwards proceeds to her port of delivery, he was of opinion that the policy remained good; but that where a ship, under a general policy to Jamaica, and until moored twenty-four hours, came to any port, and there voluntarily remained, and discharged part of her cargo, such, in his opinion, put an end to the policy after remaining there twenty-four hours, whether the policy was on ship or on goods. His Lordship, however, left the jury to state their ideas as to the policy.

The jury said, that when a person insured goods, to a particular port, though the ship might touch at another port, and remain there for twenty-four hours, that, notwithstanding, the policy remained in force; but that where the same person insured both ship and goods, as in the present instance, there, by the touching at any port, and remaining there twenty-four hours, the policy was discharged as to all other ports.

Lord KENYON assented to this distinction, and the plaintiff withdrew his record.

Erskine and Giles for the plaintiff.

Law, Gibbs and Park for the defendant.

LEIGH

V.

MATHER.

K. B. (AT NISI PRIUS) HILARY TERM.

ROHL v. PARR.

(1 Espinasse, 445–446.)

Where a ship's bottom has, during the voyage insured, been taken by the worm, in consequence of which she is incapable of proceeding on her voyage, and is condemned, this is not a loss by perils of the sea, within the meaning of the policy.

In a policy on cargo an exception of average loss under per cent., has reference to the amount of risk at the time of the loss, and not to a full cargo taken in afterwards.†

CASE on a policy of insurance on the ship Zumbee [and cargo?], from St. Bartholomew to the river Gombroon, on the

† See Phillips on Insurance, § 1774.

1796 Feb. 27.

[ 445 ]