Page:United States Reports, Volume 1.djvu/264

Rh 

1788.

holder fhould receive as much as th emoney as he can from the drawer, fince thereby fo much is faved to him. There is a material difference, however, between the principles and ufage in London and Amʃterdam, and the cuftom of Philadelphia upon this, as well as the point of notice ; for long indulgence and the courfe of bufinefs, have not yet brought us to the precife and ftrict practice of thofe capitals.

2dly. With refpect of the ʃecond objection, they faid, at the Plaintiff's clerk went repeatedly in purfuit of the Defendant ; and proof of making enquiry after him is fufficient to excufe giving notice, unlefs he fhews that he might have been found. L.N.P. 273-274. But, at all events, they infifted that what was reafonable notice was a matter of fact, and not of law ; 1 Stra. 508. 2 Stra. 820. 1175. 1 Black Rep. 1. For, though it is true, that there are many facts upon which, if the Jury proceed contrary to the opinion of the Court, a rehearing will be granted ; yet they muft, at laft, be determined by a verdict : In Trover, for inftance, the Converʃion can only be found by a Jury, it cannot be found by the Court. That reafonable notice is a fact of the fame kind, was conceded by very eminent council, in oppofition to the intereft of his client. Doug 496.7. The property of the rule is abundantly more ftriking here than in England: and ad Jury alone can decide upon the cirucmftances of the country, and the relative fituation of the parties, it ought to be left to them to afcertain the reafonablenefs of the notice.

Ingerʃol in reply, faid, that the cafe was of great importance to the mercantile intereft;  and that the mifchief would be fatally extenfive, if the adverfe arguments prevailed. He contended, however, that in whatever form the Plaintiff's choofe to proceed, they muft fail in their action. For, if they bring their fuit at common-law, then it cannot be maintained at all ; fince, at common-law, a choʃe in action is not affignable; nor is an affignor refponfible unlefs he exprefly warrants ; and, if they bring it upon the cuʃtom oƒ Merchants, then, in order to recover, they muft fhew that they have, on their part, complied with the cuftom, which required that reafonable notice of the non-payment, fhould have been given to the Defendant. But, as the common-law is not applicable, and the Act oƒ Aʃʃembly does not meddle with the cafe of Indorʃors and Indorʃees, the declaration muft undoubtedly be founded upon the ftatute of Anne and the cuftom of merchants ; and if the Plaintiffs are allowed to take advantage of thefe to maintain  his action (waving the queftion whether the ftatute extends to this country) the Defendant cannot be precluded from taking advantage of them, likewife, to fupport his defence.Upon this ground the ufage muft be univeral : For, the ftatute of Anne places promiffory notes on the fame footing with inland bills of exchange, and inland bills of exchange, in the preceding reign of W. 3. had been placed on the fame footing, with foreign bills–fo that any diftinctions, between the cites of Amʃterdam and London, and the Burning.