1788.
STEINMETZ et al. verʃus CURREY.
M
OTION for a new trial. The circumftances of the cafe were thefe:–James Whitelow drew a bill of exchange, dated the 30th of October 1775, for Ł. 239. 18. 0 fterling, upon William Houʃton and Co. in Reʃoew near Glaʃgow payable on the 1ft of Auguʃt, 1776, in favor of John Witherʃpoon, by Archibald Currey (the Defendant) by Archibald and Wm. Blair, by John Pringle, by Steinmetz and Bell, (the Plaintiff) by Mark Freeman and by William Cowpland. The Defendant's indorfement was made on, or about, the 17th of April 1777, and the bill was prefented and protefted for non-acceptance on the 30th of December 1778 ; of which notice was given on the 28th of April 1780, to the Plaintiffs, who on the 9th of November ƒollowing paid the amount, and giving notice thereof to the Defendant on the 17th of October 1782, they commenced the prefent action on the fucceeding day.Upon the trial, the court was moved to direct the jury to find a fpecial verdict ; but, perceiving fo great a complication of fact and law in the cafe ; and, being doubtful, as the whole tranfaction happened ʃlagrante hello, whether the point of reafonable notice of the proteft, was proper for them, or the jury, to determine, it was though beft, upon the whole, to leave it to the jury to find either a fpecial, or a general, verdict, as they fhould think advifeable. The jury found a general verdict for the Plaintiff.
The motion for a new trial was made, and argued, at the laft term ; and now the CHIEF JUSTICE, having recapitulated the preceding ftate of the cafe, delivered the opinion of the court.
M‘KEAN, Chieƒ Juʃtice.— The motion for a new trial in this caufe, has been fupported on two grounds : 1ʃt, Becaufe the Plaintiffs declare on the firft bill of exchange, and produced the fecond and third, with a proteft of the fecond ; alledging, that the firft was alfo protefted, but furnifhing no proof of that fact. And 2dly, becaufe the verdict was againft law and evidence.
Granting new trials depends on the legal diʃcretion of the court, guided by the nature and circumʃtances of the particular cafe. 1 Burr. 293 The courts of England have granted them where the jury have found a general verdict, after counfel have prayed for, and the court have directed, 2 ʃpecial one. 8 Mod. 220 1 Will. 212. So where the verdict is againft the ʃtrength of the evidence, and the trial is peremptory. 12 Mod. 439. 1 Barn. Notes 322. 1 Stra. 584. 2 Ld. Raym. 11356. S.C. 1 Burr. 395. And where the matter appears to the court to deferve a re-examination, they have likewife frequently ordered a new trial. 12 Mod. 336. 347. Vin. Abr. trial. N.g.f. 475.
In the prefent cafe, the verdict appears to be againft the ftrength of the evidence. Two years and a half (from the 28th of April 1780,
until the 17th of October 1782,) elapfed between the time at which the Plaintiffs had notice of the proteft of the bill in queftion, and the time when they gave notice to the Defendant: And, as the former refided at Philadelphia, and the latter at Poughkepʃie,in the ftate of New-York, the diftance of thefe places, which is lefs than 150 miles, does not fufficiently account for fo extraordinary a delay, even though it happened during a war.
It is well underftood, that notice of a proteft ought to be given in a reafonable time; and, by not giving it, the indorfer takes the lofs upon himfelf: 1 Salk. 2 Black. Rep. 469. Cun. Law. oƒ B. oƒ E. 40. Sect. 6. Doug. 497. Term. Rep. 168. 5 Burr. 2671. And want of notice is tantamount to payment. Term Rep. 408.712.
Upon the whole, we think this caufe requires a re-examination ; that the verdict was againft the ʃtrength of evidence given on the trial, and the law refpecting reafonable notice: and that the Defendant, who has no remedy over but againft James Whitelaw, the drawer of the bill, will be improperly expofed to a great lofs by the neglect of the Plaintiffs, if thofe perfon fhould, in the meantime, have become infolvent.
A new trial awarded. [♦]