Brahan v. Ragland , 1 Minor 85 ( 1822 )

Judge Lipscomb

delivered the opinion of the Court.

The only point here presented for consideration is, whether the Jury or the Court should determine on the reasonableness of notice to charge the indorser. In the English Courts, from the time of Lord Mansfield, it has been considered a mixed question. The Jury inquired if notice had been given and when — the Court then determined on its reasonableness. In the case of Tindal against Brown (1 Term, 168,) Lord Mansfield, after laying it down to be a mixed question of law and fact, said, That whenever a rule could possibly be laid down, the reasonableness of notice should be decided by the, Court. All the English decisions follow the same rule. In Ireland against Rip (11 Johnson, 232,) Judge Spencer, after recognizing the principle of the English decisions and insisting on the necessity of certainty and uniformity in commercial transactions, says, decisions of other Courts in other countries on such points are entitled ■to little consideration. The great extent and population of London and its neighbourhood might well admit of a rule like the one in the case cited, (Scott and al. against Clifford) while such a rule here would be inapplicable and iinproper. The learned Judge then proceeds to lay down the rule in New-York, bottomed on their customs and peculiar situation.

The positions which I think fairly to be deduced from these authorities are, 1st, That if commercial regulations have settled down to fixed customs, those customs become the law which must govern the Jury. 2d, That these customs are not uniform in the commercial world, but in different countries different customs prevail. 3d, That in the absence of such customs the Jury must, from the necessity of the case, determine on the reasonableness of the notice.

The first position is so fully supported by the authorities quoted, that it does not require the aid of argument. The second can be as fairly sustained by adjudged cases and by common sense. From the cases referred to, it will be seen that a different rule or custom was held to be the law in Mew-York from the one laid down by Lord Mansfield, as the custom in London. This difference is founded on sound reason. How could the custom of London, with its vast extent and population, be applicable to Mew-York with its comparatively limited population. In London it would be extremely difficult to seek out and make a personal service of notice on the indorser. It is therefore the rule that notice may be sent by the two-penny post, the next day after the days of grace have expired. In Mew-Yorlc, personal notice, or something tantamount, as leaving the notice at the house of the indor-ser, must be given. I believe that Lord Mansfield would never have applied the custom in London to a case in Wales or the Hebrides; and there would be as little propriety in applying the customs of Mew-Yorlc to the new and scattered settlements of Alabama.

In support of the third position, I will only refer to the opinion of Lord Mansfield in the case of Tindal against Brown. His Lordship says, “ whenever it is possible to lay “ down a rule, the reasonableness of notice should be decided “ by the Courtin which opinion every lawyer will concur. But the very expressions used imply as strongly as words will admit, that a case might occur in which it would be impossible to lay down any rule; and that in such case, reason from principle and from analogy Would say that it must be determined by a Jury.

Is there then any fixed and established custom in this State by which the Court could be governed in laying down the rule of law with any sort of certainty ? Long and immemorially established customs assume the solemnity and force of law. Policy and necessity not unfrequently cause particular customs to be recognized as the law, long before their antiquity would entitle them to such respect. If it be found that we have a custom prevailing in this country, fixing the reasonableness of the notice to be given to indorsers, and that policy or necessity call on the Courts to support it, if it be not contrary to express law, its origin will not be strictly enquired into. I presume that it will not be contended that in our infant country we have any customs having the force of prescriptions. If, then, we attempt to set up such a custom, it must be derived from an older and more commercial country. But it would be difficult to determine from what country or place we should borrow the custom. Shall we say to the thinly and widely extended population of this State, you must be governed by the customs of London or of Nem-York, when their repugnancy to our local situation and the policy of our country is so very obvious ? In many cases the indorsee may reside hundreds of miles from the indorser, and perhaps fifty miles from any post-office. These customs are the offspring of commerce, and are now essential to its prosperity : and in commercial countries, policy calls on the Courts to support them. They were known to the parties when they made their contracts as part of the law governing such contracts ; but we are an agricultural not a commercial people ; and, until we have some established custom in this State as to the reasonableness of notice, it must be determined on by the Jury. It is the unanimous opinion of the Court that the Judgment of the Circuit Court must be affirmed*