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* Steinmetz et al v. Currey.

New trial.

New trial granted, where the verdict was against the weight of the evidence.

Notice of the protest of a bill must be given in a reasonable time.

Motion for a new trial. The circumstances of the case were these: James Whitelaw drew a bill of exchange, dated the 30th of October 1775, for 23 9i. 18s. Qd. sterling, upon William Houston & Co. in Refrew, near Glasgow, payable on the 1st of August 1776, in favor of John Witherspoon oi order ; which bill was afterwards indorsed by the said John Witherspoon, by Archibald Currey (the defendant), by Archibald and Wm. Blair, by John Pringle, by Steinmetz & Bell (the plaintiffs), by Mark Freeman, and by William Cowpland. The defendant’s indorsement was made on or about the 17th.of April 1777, and the bill was presented and protested for non-ac-cejitance, 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 following, *245paid the amount, and giving notice thereof to the defendant, on the 17th of October 1782, they commenced the present action, on the succeeding day.

Upon the trial, the court was moved to direct the jury to find a special verdict; but, perceiving so great a complication of fact and law in the case;» and being doubtful, as the whole transaction happened flagrante hello, whether the point of reasonable notice of the protest, was proper for them, or the jury, to determine, it was thought best, upon the whole, to leave it to the jury to find either a special, or a general verdict, as they should think advisable. The jury found a general verdict for the plaintiff.

The motion for a new trial was made, and argued, at the last term ; and now, the Chief Justice, having recapitulated the preceding state of the ease, delivered the opinion of the court.

McKean, Chief Justice.

The motion for a new trial in this cause, has been supported on two grounds: 1st. Because the plaintiffs declare on the first bill of exchange, and produce the second and third, with a protest of the second; alleging, that the first was also protested, but furnishing no proof of that fact. And 2d. Because the verdict was against law and evidence.

Granting new trials depends on the legal discretion of the court, guided by the nature and circumstances of the particular case. 1 Burr. 293. The courts of England have granted them, where the jury have found a general verdict, after counsel have prayed for, and the court have directed, a special one. 8 Mod. 220; 1 Willes 212. So, where the verdict is against the strength of the evidence, and the trial is peremptory. 12 Mod. 439; 1 Barn. Notes 322; 1 Str. 584; 2 Ld. Raym. 1358; s. c. 1 Burr. 395. And where the matter appears to the court to deserve a re-examination, they have likewise frequently ordered a new trial. 12 Mod. 336, 347; Vin. Abr. Trial, N. g. f. 475. (a)

In the present case, the verdict appears to be against the strength of the evidence. Two years and a half (from the 28th of April 1780, *until the 17th of October 1782) elapsed, between the time at which the *- plaintiffs had notice of the protest of the bill in question, and the time when they gave notice to' the defendant. And as the former resided at Philadelphia, and the latter at Poughkeepsie, in the state of New York, the distance of these places, which is less than 150 miles, does not sufficiently account for so extraordinary a delay, even though it happened during a war.

It is well understood, that notice of a protest ought to be given in a reasonable time; and by not giving it, the indorser takes the loss upon himself: 1 Salk. 127; 2 W. Black. 469; Cun. Law of B. of Ex. 40, § 6; Doug. 497; 1 Term Rep. 168; 5 Burr 2671. And want of notice is tantamount to payment. 1 Term Rep. 408, 712.

Upon the whole, we think this cause requires a re-examination ; that the verdict was against the strength of the evidence given on the trial, and the law respecting reasonable notice ; and that the defendant, who has no remedy over, but against John Witherspoon, the prior indorser, or James Whitelaw, the drawer of the bill, will be improperly exposed to a great loss *246by the neglect of the plaintiffs, if those persons should, in the meantime, have become insolvent.

A new trial awarded, (a)

(a)

This case was retried at the April term following, when the court declared their opinion, unanimously, that the delay had been unreasonable; in consequence of which, the plaintiff suffered a nonsuit. See the case reported, post, p. 370. The rule, that notice must be given in a reasonable time, is settled by numerous decisions in this state, from the case in the test down to Gurley v. Gettysburg Bank, 7 S. & R. 324 As to what notice must be given, and when it may be dispensed with, see Mallory v. Kirwan, 2 Dall. 193; Fisher v. Evans, 5 Binn. 542; Barton v. Baker, 1 S. & R. 334; Smith v. Bank of Washington, 5 Id. 322; Richter v. Selin, 8 Id. 438; Levy v. Peters, 9 Id. 125; Gibbs v. Cannon, 9 Id. 198; Juniata Bank v. Hale, 16 Id. 157; Gallaher v. Roberts, 2 W. C. C. 191; Read v. Wilkinson, Id. 514; McMurtie v. Jones, 3 Id. 206; Denniston v. Imbrie, Id. 896. Sea also the note to Robertson v. Vogle, post, p. 252.

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