ALDERMAN v. NEATE. [ *720 ] of certain premises; and the question turns on this, whether the agreement, the foundation of the action, is to be construed as a demise, or only as a contract for a lease. It appears that, originally, an agreement, dated the 25th of February, 1782, was made with certain trustees to convey the premises in question to the use of the poor of the parish; and the contract was, that the parties were to have possession of the premises for ninety-nine years, to commence from the Lady Day then next ensuing, at a half-yearly rent of 25l., with a proviso, that before the 1st of January next ensuing a lease should be executed, containing the usual covenants; and that in case the parties accepting the premises, or their successors, should think it expedient to purchase the fee-simple in the soil for a certain price, the lessor should make a conveyance to them accordingly. It was contended by the defendants' counsel, that this agreement could not operate as an absolute demise for ninety-nine years; and he urged in support of the proposition, the circumstance of its containing a stipulation *for the execution of a lease at a future period. But so many cases are to be found where agreements have been held to operate as actual demises, notwithstanding the insertion of a stipulation similar to the above, that this argument cannot be sustained. It was then suggested that it might have been optional on the part of the defendants to treat it as a lease or not; but we think, on the view of the whole instrument, that it is a question for our decision, whether or not the words it contains are sufficient to amount to a present demise, if it can be collected from the circumstances of the case, that it was the intention of the parties, at the time when it was executed, that it should be such. Here the parties agree that the term in question is to commence from the 25th of March, 1782, at a certain yearly rent; on this the question arises, when would the first year's rent become due? No one can suppose for a moment that this can be at any other period than the Michaelmas following; in which case, the term must have commenced immediately on the date of the agreement; and if so, what was the term in question, but the one for ninety-nine years mentioned in the agreement? If however the first half-year's rent be not considered as accruing due at Michaelmas, 1782, it must necessarily become so at Lady Day next following; and on that construction, we are to suppose, that although the lessor created a tenancy for ninety-nine years from March, 1782, at a half-yearly rent, still no rent was to be payable till the expiration of a full year from the date, and consequently the last half-year's rent would become due at the end of a half-year after the term had expired. It is much more probable that the rent should be made payable within the term, than after its expiration, as in the latter event the landlord's remedy by distress would be gone. We think it would have been better if the Courts had not given so wide a construction to instruments of this nature; but on consideration of all the cases taken together, we cannot avoid the conclusion, that a stipulation for the execution of a lease in futuro does not necessarily contradict the notion of an instrument of this description amounting to a present demise. Besides, the agreement in this case containing the stipulations usually found in actual leases, goes far to prevent the doubt and uncertainty which such an agreement might otherwise produce; and the specific agreements for repair and payment of rent amount to a proviso that the lease shall be put an end to if the rent is not paid and the repairs not performed. For all these reasons we think that the lease in this case took effect from the date of the agreement. The next question is, whether, supposing this to be a lease, it vested in the overseers of the poor, under the 59 Geo. III. c. 12, s. 17. That question has been ingeniously argued before us; we do not, however, consider it as being res integra, inasmuch as it has been decided by the Court of Queen's Bench (1) that the statute does apply in all cases; and as the agreement here is a grant of property to be used for a poor-house, we think it is within the provisions of the statute, and accordingly that the property is vested in the overseers for the time being. Our judgment must therefore be for the plaintiffs (2). Judgment for the plaintiffs. STRAKER v. GRAHAM AND ANOTHER (3). (4 Meeson & Welsby, 721--726; S. C. 1 H. & H. 449; 8 L. J. (N. S.) Ex. 86; 7 Dowl. P. C. 223.) On a motion for a new trial, the Court will not receive an affidavit by the attorney of an admission made to him by one of the jurymen, that the verdict was decided by lot. A bill of exchange was drawn in duplicate on the 12th of August at (1) Doe d. Jackson v. Hiley, 34 R. R. 591 (10 B. & C. 885). (2) See Allason v. Stark, 48 R. R. 493 (9 Ad. & El. 255; 1 P. & D. 183). (3) See the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), s. 40.--R. C. ALDERMAN บ. NEATE. [ *721 ] 1839. Exch. of [ 721 ] bill was not presented for acceptance to S. & Co. until the 16th of November. Carbonear is 20 miles from St. John's, with a daily communication between those places; and from St. John's there is a post office packet three times a week to England, the average voyage being about 18 days: Held, that the jury had properly found that the bill was not presented for acceptance within a reasonable time, no circumstances being proved in explanation of the delay. ASSUMPSIT for freight. The defendants pleaded, 1st, non assumpserunt; 2ndly, except as to 1767. 68. 6d., *payment; 3rdly, as to the said sum of 176l. 6s. 6d., a plea stating (in substance) that Messrs. Slade, Biddle, & Co., of Carbonear, (in Newfoundland), the consignees of the goods mentioned in the declaration, on the 16th of August, 1837, delivered to the plaintiff, for and on account of the said freight, and in payment of the said sum of 176l. 6s. 6d., and the plaintiff accepted, a bill of exchange, dated the 12th August, 1837, drawn by Slade, Biddle & Co., upon Messrs. Slade, Biddle & Co. of Poole, (in England), payable ninety days after sight; that the plaintiff kept the bill for an unreasonable time before it was presented for acceptance to Slade, Biddle & Co., the drawees, and that in consequence thereof, Slade & Co., who would have paid the bill if it had been presented for acceptance within a reasonable time, when it became due, were unable to pay it, and it was dishonoured. Replication to the latter plea, that the plaintiff did not keep the bill an unreasonable time, as is in the plea alleged; and issue thereon. At the trial before Williams, J., at the last Liverpool Assizes, it appeared that the freight sought to be recovered was in respect of a voyage from Liverpool to Carbonear; and that a bill was given in duplicate for the freight in question, at Carbonear; on the 12th August, 1837, by the agent there of Messrs. Slade, Biddle & Co., to the captain of the vessel, drawn on Slade, Biddle & Co., of Poole, the owners of the goods, payable ninety days after sight to the order of the plaintiff. Carbonear is twenty miles distant from St. John's, and there is a daily communication between the two places; and from St. John's a post-office packet sails three times a week for England, the average voyage being about eighteen days. By Quebec, the bill might have been transmitted in about six weeks. The bill was not presented for acceptance to Slade, Biddle & Co. until the 16th of November; it was then accepted by them, and would thus become due on the 17th of February, 1838. On the 30th of January, Slade & Co. stopped payment, *and the bill was dishonoured when due. The captain was not called at the trial, nor was any evidence given to explain the delay in the presentment of the bill. The learned Judge, in summing up, intimated an opinion in favour of the plaintiff's right to recover; but the jury, after a deliberation of about twenty-four hours, found a verdict for the defendants. In Michaelmas Term, Atcherley, Serjt., obtained a rule nisi for a new trial, on the ground that the verdict was against the evidence; and also on an affidavit of the plaintiff's attorney, that having been informed, immediately after the trial, that the verdict had been decided by drawing lots, he had applied to one of the jurymen, who had admitted to him that that was the case (1). The learned Judge, in his report, intimated his dissatisfaction with the verdict. Cresswell and Cowling showed cause : The verdict was perfectly right upon the evidence. This is not the case of a bill put into circulation and sold in the market, but of a bill given in satisfaction of a debt between the parties. If a party puts a bill, payable after sight, into general circulation, he is no longer responsible for the delay that may occur in presenting it to the drawee; but it is otherwise where the holder retains it in his own possession: Muilman v. D'Eguino (2). Here it appears that there was a daily communication between St. John's and Carbonear, and a regular post-office communication three times a week from St. John's to England, which is only an eighteen days' voyage; that, moreover, the bill might have been transmitted by Quebec in six weeks; yet it is not presented until the 16th of November, a period of nearly fourteen weeks from its date. And it is always to be remembered, that the bill being drawn in sets, both means of transmission might have been made available. It is admitted that the defendants were bound to make out that the delay was unreasonable; but they clearly established such a prima facie case as rendered it incumbent on the plaintiff to show the special circumstances. * With regard to the affidavit, it is clearly inadmissible. The affidavit of the jury man himself would not be receivable: and his declaration not on oath cannot be in any better situation. Atcherley, Serjt., contrà : There was no proof of unreasonable delay on the part of the (1) The COURT intimated an opinion, when the motion was made, that this affidavit was inadmissible; but it sub R.R. -VOL. LI. sequently appeared that the rule was (2) 2 H. Bl. 565. 50 STRAKER 1. GRAHAM. [ *724 ] STRAKER v. GRAHAM. [ *725 ] plaintiff. The interest of the drawer is not alone to be consulted in such a case it is his fault if, by drawing a bill payable after sight, he takes upon himself the greater chance of failure by the drawees. The defendants were bound to establish such laches. contrary to the custom of merchants, as is sufficient to cast the onus on the holder. Here there was no post office at Carbonear; and the vessel was bound for Quebec. (LORD ABINGER, C. B.: Why was not one set sent by St. John's ?) That point was not taken at the trial. The question for the jury was, whether, looking at the interests of both the drawer and the holder, there had been unreasonable delay in forwarding the bill for acceptance, or putting it into circulation: Mellish v. Rawdon (1). The verdict was contrary to the opinion of the learned Judge, and it is evident that it was so given, only because some of the jury were worn out by exhaustion. But the affidavit is also admissible. There are conflicting authorities on this subject. In Owen v. Warburton (2), the Court refused to set aside a verdict, on the affidavit of a juryman that it was decided by lot. But the affidavit of the juryman himself is rejected, because the conduct which he admits is such as would render him liable to punishment. (LORD ABINGER, C. B.: No; it is because otherwise no verdict would be safe.) There is no rule of law which prevents the Court from getting at the knowledge of this fact as of any other, except that the juryman is not permitted to confess his own misconduct. A verdict decided by lot will be set aside, although it be according to the evidence and the opinion of the Judge: Fry v. Ward (3), Hall v. Core (4). In Aylett v. Jewell (5), a new trial was refused because there was no affidavit by the jurymen themselves, but only their declaration to the attorney. (ALDERSON, B.: If such evidence were admissible, what verdict would be safe? If one of the jury is displeased at the verdict, he (1) 35 R. R. 579 (9 Bing. 416; 2 Moore & Scott, 570). (2) 8 R. R. 817 (1 Bos. & P. (N. R.) 326). (3) T. Jones, 83. (5) 2 W. Bl. 1299. |