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REASONABLE TIME-REASONABLE HOURS.

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time, and the bankers at the time of their failure had sufficient funds of the drawer's to pay the cheque (e). 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 usual course of presentment through a banker should be observed, and the steps actually taken were clearly in conformity with such course (ƒ).

§ 28. The judges have also, with respect to the presentment of 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 (g); 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 (h). 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 (i); 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 (j). 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 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

(e) Alexander v. Burchfield, 7 M. & Gr. 1061.

(ƒ) Id. 1066, 1067, per Tindal, C. J.

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

(h) Wilkins v. Jadis, 2 B. & Ad. 188; 1 M. & Rob. 41, S.C.; Jameson v. Swinton, 2 Taunt. 224; Barclay v. Bailey, 2 Camp. 527, per Lord Ellenborough. (i) Garnett v. Woodcock, 6 M. & Sel. 44; 1 Stark. R. 475, S.C.

(j) See 6 M. & Gr. 624-626, per Parke, B.

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midnight to receive and count the money tendered (k). The law as to the delivery of goods within reasonable hours was much discussed in the case of Startup v. Macdonald (7). 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 of 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 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" (m). Mr. Baron Alderson used language to the same effect (n), and thus laid down the general rule: "Wherever, in cases not governed by particular 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 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 a period, before the end of the last day, as,

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

(1) 6 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.

(m) 6 M. & Gr. 620.

(n) Id. 621, 622.

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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" (o).

§ 29. Again, a reasonable notice to quit a tenancy has for centuries received a legal construction, as meaning a six months' notice (p); 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 (g). So, in the case of domestic servants, a reasonable notice to quit is a calendar month's warning (r). In all these cases the question being decided by a precise rule of law is entirely withdrawn from the consideration of the jury. Formerly the judges endeavoured to limit to a period of three days, the reasonable time for which a suspected party might be committed for re-examination (s); and although it was afterwards held that

(0) 6 M. & Gr. 622, 623. See also the luminous judgment of Parke, B., id. 623-626.

(p) Doe v. Spence, 6 East, 123, per Lord Ellenborough.

(2) 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 question raised, but not decided, was, whether, where a tenant holds a farm from year to year, the land from the 2nd of February, the house from the 1st of May, a notice to quit the whole, given half a year before the 2nd of February, is sufficient to entitle the landlord to recover the whole in ejectment, on a demise dated the 3rd of February. The inclination of Lord Abinger's opinion appears to have been support of the affirmative.

(r) Nowlan v. Ablett, 2 C. M. & R. 54; Fawcett v. Cash, 5 B. & Ad. 904; 3 N. & M. 177, S. C.

(8) Scavage v. Tatham, Cro. Eliz. 829.

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no precise rule could be laid down on this subject, inasmuch as the length of time must vary according to the special circumstances of each case, and must depend upon the probability of obtaining further evidence, yet the better opinion seems to be that, as in the case of probable cause, the jury must ascertain the existence of the facts, leaving the court to determine, upon those facts, whether the time was reasonable or not (t). On two occasions, indeed, in England (u), and on one in Ireland (v), the entire question appears to have been submitted to the jury, but the latter of the two English cases rested upon the authority of the former (w), and in the former no objection was taken at Nisi Prius to the summing up of the judge, but on a subsequent motion in Banco its correctness was questioned, and at the second trial the course stated above was distinctly adopted (x). So, in an action against a sheriff for an escape, the question whether the officer was guilty of unreasonable delay in taking the party arrested to prison, is one for the determination of the judge (y), as also is the question whether an arrest has been countermanded within a reasonable time (z), or whether an executor has had reasonable time to remove the goods from the testator's mansion (a). It seems, also, that the judges are the proper parties to decide whether fines, customs, or services are reasonable (b), as also whether deeds contain reasonable covenants or powers (c). On the other hand, it appears to have been held, that the questions, whether a

(t) Davis v. Capper, 10 B. & C. 28; 5 M. & R. 53; 4 C. & P. 134, S. C. (u) Davis v. Capper, 10 B. & C. 30, per Gaselee, J.; Cave v. Mountain, 1 M. & Gr. 260, per Lord Abinger; 1 Scott, N. R. 132, S. C.

(v) Gillman v. Connor, 2 Jebb. & Sy. 210.

(w) Cavev. Mountain, 1 M. & Gr. 263, per Tindal, C.J.,who adds that Lord Abinger, who tried the cause, " was, under all the circumstances, satisfied with the verdict," and consequently the propriety of his leaving the question to the jury, could not practically be questioned in the court above.

(2) Davis v. Capper, 4 C. & P. 134 a, 138; 10 B. & C. 33, 35, 36. (y) Benton v. Sutton, 1 Bos. & Pul. 28, per Heath, J.

(*) Scheibel v. Fairbain, 1 B. & P. 388. Heath, J., there held, that the arrest ought to have been countermanded in the course of the day in which the debt was received. (a) Co. Lit. § 69, and p. 56 b.

(b) Id. 56 b, 59 b; Wilson v. Hoare, 10 A. & E. 236; Bell v. Wardell, Willes, 202.

(c) Smith v. Doe d. Jersey, 2 B. & P. 592, per Abbott, C. J.

REASONABLE SKILL-DUE DILIGENCE, &c.

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crop has been left on the ground for a reasonable time (d), so as to enable the tithe-owner to compare the tithe set out with the remainder of the produce; whether the vendor of railway shares has offered to transfer them within a reasonable time (e); whether goods purchased by sample have been rejected (f), or goods taken by distress have been sold (g) within a reasonable time; whether a bill payable after sight has been presented (h); whether a voyage insured has been commenced or prosecuted (i); or whether costs have been taxed, within such time (j), are to be decided by the jury. In attempting to reconcile these conflicting decisions, it may perhaps be urged, that these last-named questions turn upon the ordinary course of business or trade, and, consequently, relate to matters with which the jury are peculiarly acquainted; but whether this be a satisfactory solution of the difficulty we do not here attempt to decide.

§ 30. Questions of reasonable skill or care, due diligence, and gross negligence must, in the great majority of instances, be determined by the jury, since the judges can rarely have materials which will enable them to decide such questions by rules of law. Thus, if an action be brought against a surgeon for negligence in the treatment of his patient (4), or against a gratuitous bailee for gross carelessness in losing the property intrusted to his care (1), what law can possibly define whether such and such conduct amounts to sufficient negligence on the part of the defendant to

(d) Facey v. Hurdom, 3 B. & C. 213. (f) Parker v. Palmer, 4 B. & A. 387.

(e) Stewart v. Cauty, 8 M. & W. 160. (g) Pitt v. Shew, 4 B. & A. 206.

(h) Muilman v. D'Equino, 2 H. Bl. 564; Fry v. Hill, 7 Taunt. 397.

(i) Mount v. Larkins, 8 Bing. 108; 1 M. & Sc. 165, S. C.; Phillips v. Irving, 7 M. & Gr. 325. In this last case, the question was left by consent for the decision of the court, who held, "that no certain or fixed time could be said to be a reasonable or unreasonable time for seeking a cargo in a foreign port; but that the time allowed must vary with the varying circumstances, which may render it more or less difficult to obtain such cargo." Id. 328, 329, per Tindal, C. J.

(j) Burton v. Griffiths, 11 M. & W. 817. In this case there was an express traverse of reasonable time, and the judges above concurred with the finding of the jury.

(k) 2 A. & E., 261, per Taunton, J.

(1) Doorman v. Jenkins, 2 A & E. 256; 4 N. & M. 170, S.C.

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