The opinion of, the cour.t was delivered by
Buchanan, J.
It is contended, on. the part of the defendants, that the proof offered at the trial by the plaintiff, and. stated in the hill of, exceptions, does not. correspondí with the agreement set out in the declaration, and that fe■the yaijan.ee between., the (illegyta and the probata,, tlo [149]*149plaintiff is not entitled to recover. It is not necessary to examine this technical objection to the plaintiff’s right of recovery, there being quite enough without it to defeat the, action. John Chalmers, on whom the bill oí exchange was drawn, resided in the City of Washington, in the District of Columbia; and it is stated in the declaration, that the defendants undertook and promised to collect the amount, according to the usages and customs of merchants and banks in the city of Baltimore, Now what is that usage? Why it is stated in the bill of exceptions to be the ■universal custom of the banks in the city of Baltimore, that collect for their customers, (who are the merchants,) notes or Dills payable at a distance from Baltimore, to make use of other banks as their agents in making such collections. So far, then, as respects the sending of the bill of exchange in question to a bank in the District of Columbia for collection, the defendants acted in strict conformity with their engagement; and having received it on the first of May 1810, and enclosed it on the day following to the cashier of the Bank of Columbia, their established agent for the transaction of all such business in the city of Washington and George Town, by mail, in a letter, which, according to the regular course of the mail, would reach its destination on the third day of May, two days before it became payable, according to its tenor, and the law merchant of this state. Surely no negligence or inattention is imputable to them in relation to that part of the transaction; nor is it pretended that any loss was sustained by reaspu of delay in sending on the bill. They sent it for collection, in convenient and reasonable time after it was received by them, to a respectable agent, an institution of high standing, and dealt with it, as it was their known and established custom to deal with all notes and bills to be collected in the District of Columbia, without any imputation of unfairness in the course they pursued. But it is urged, in behalf of the piainiifi", that in '■iuiFequencc of the demand on the acceptor of the bill for ■payment, and protest for nonpayment being made on the hrv-Üi day after it fell due, he has been unable to recover .I'/naiit ike endorser, who lives in the city of Baltimore, that the defendants ought to be answerable for the nc^ugence of the Bank of Columbia in not, making the dear,: ■ and protest on the third day of grace, according to [150]*150the law. q£ this state. But it appears to have been thq, uniform custom of all the banks within the District of Columbia, to cause, deina,nd and protest, to be made on the; fourth, day, and that the Bank of Columbia? in this instance, pursued; the, settled custom. How far that custom is to be legat'ded as, the law of the District, it is not necessary in this caseto inquire. It was the. universal custom of the, banks in, Baltiviore to collect notes and hills for their customers, payable at at distance, by the agency-, of other banks. The. plaintiff was a customer of the Union Bank of Maryland, established in Baltimore, made all his deposits there, and placed there for collection all his notes and bills, whether payable in Baltimore, or elsewhere; he was a merchant extensively engaged in commerce, and must be supposed to have had a knowledge of-the uniform and established mode of making such collections by the banks, and particularly the Union Bank of Maryland, in which he did all his business of.that character. This bill of exchange wap payable in tlie .District .of-Columbia, and the placing it with the defendants for collection, was equivalent toan agreement that it, should be. sent by them for that purpose to.some bank in the District of Columpia, to the Bank of Columbia, their established, agent, thus virtually constituting the Bank of Columbia, his agent, in that transaction, and if that agent did, in, qqnformity with the custom in. tVie District of Columbia, neglect to cause demand and protest tp' be made on the proper, day, the defendants are not chargeable with, any negligence, or other improper conduct. If they are.to be presumed acquainted with the custom, of the banks, in the District, the,same may be predicated, of the plaintiff, and that he-placed his bill with them for collection,, according to that custom, as it was their practice to do, in relation, to all other notes and bills payable, there.' This transaction is not. affected by.the general, law of bailment, except so far as concerns the transmitting of the bill to the Bank of Columbia; and if it had not been transmitted in due time, the defendants would be answerable for any loss sustained by reason of such negligence. But the Mil was sent on, in good time, and no negligence is chargeable to ;the defendants. Suppose a foreign merchant sends goods tc his consignee in Baltimore, with instructions to dispose of them for him to tli.e best advantage, the consignee ;ends [151]*151them to auction for sale, and the auctioneer makes way with the goods, or sells them and makes way with the money, and fails — In such, á case, (to which tins in principle may be aptly likened,) the consignee would clearlj not be answerable»
JUDGEMENT AFFIRMED.
Hawkins vs. Jackson, referred to in the preceding case, was in this court at Jane term on an appeal from Haiti wore county court. It was an action of assumpsit, brought by the appellee against the appellant as the endorser of an inland hill oí «¿change. The declaration contained only one count, which sta ted thatthe bill was dated on the 2d of November 18) 0, drawn ai Baltimore by Joh& 0/¿aimers, junior, upon John Chalmers, se ifior, at Washington, in the district of Columbia, requiring him, six months afterdate, to pay to the defendant, or order, 95, YVhich bill was accepted by John Chalmers, senior, and endorsed by the defendant to the plaintiff. That it was on the 6th of May J8U, presented to John Chalmers, senior, at Washington, in the district of Columbia, to wit, ¿I the county afoi esaid, ior payment, and he was then requested to pay, &c. but that he then and theie, at Washington, in, &c to -wit, at, &c. wholly failed, and made default, whereof the defendant had notice; and thereby and by reason thereof, and of the several other premises, and by foíxe oí the custom and law of merchants, the defendant became liable to pay to the plaintiff and being so liable he promised, &c. At the return day of the writ, March term 1612, the defendant appeared hi proper person, and ^ave special bail, and a rule was then íaid on him to plead by October term following, at which term the ¿•ule was extended to March term 1813, when the defendant having failed to plead, the court assessed the plaiftUfi’s damages to 0762 27,
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The opinion of, the cour.t was delivered by
Buchanan, J.
It is contended, on. the part of the defendants, that the proof offered at the trial by the plaintiff, and. stated in the hill of, exceptions, does not. correspondí with the agreement set out in the declaration, and that fe■the yaijan.ee between., the (illegyta and the probata,, tlo [149]*149plaintiff is not entitled to recover. It is not necessary to examine this technical objection to the plaintiff’s right of recovery, there being quite enough without it to defeat the, action. John Chalmers, on whom the bill oí exchange was drawn, resided in the City of Washington, in the District of Columbia; and it is stated in the declaration, that the defendants undertook and promised to collect the amount, according to the usages and customs of merchants and banks in the city of Baltimore, Now what is that usage? Why it is stated in the bill of exceptions to be the ■universal custom of the banks in the city of Baltimore, that collect for their customers, (who are the merchants,) notes or Dills payable at a distance from Baltimore, to make use of other banks as their agents in making such collections. So far, then, as respects the sending of the bill of exchange in question to a bank in the District of Columbia for collection, the defendants acted in strict conformity with their engagement; and having received it on the first of May 1810, and enclosed it on the day following to the cashier of the Bank of Columbia, their established agent for the transaction of all such business in the city of Washington and George Town, by mail, in a letter, which, according to the regular course of the mail, would reach its destination on the third day of May, two days before it became payable, according to its tenor, and the law merchant of this state. Surely no negligence or inattention is imputable to them in relation to that part of the transaction; nor is it pretended that any loss was sustained by reaspu of delay in sending on the bill. They sent it for collection, in convenient and reasonable time after it was received by them, to a respectable agent, an institution of high standing, and dealt with it, as it was their known and established custom to deal with all notes and bills to be collected in the District of Columbia, without any imputation of unfairness in the course they pursued. But it is urged, in behalf of the piainiifi", that in '■iuiFequencc of the demand on the acceptor of the bill for ■payment, and protest for nonpayment being made on the hrv-Üi day after it fell due, he has been unable to recover .I'/naiit ike endorser, who lives in the city of Baltimore, that the defendants ought to be answerable for the nc^ugence of the Bank of Columbia in not, making the dear,: ■ and protest on the third day of grace, according to [150]*150the law. q£ this state. But it appears to have been thq, uniform custom of all the banks within the District of Columbia, to cause, deina,nd and protest, to be made on the; fourth, day, and that the Bank of Columbia? in this instance, pursued; the, settled custom. How far that custom is to be legat'ded as, the law of the District, it is not necessary in this caseto inquire. It was the. universal custom of the, banks in, Baltiviore to collect notes and hills for their customers, payable at at distance, by the agency-, of other banks. The. plaintiff was a customer of the Union Bank of Maryland, established in Baltimore, made all his deposits there, and placed there for collection all his notes and bills, whether payable in Baltimore, or elsewhere; he was a merchant extensively engaged in commerce, and must be supposed to have had a knowledge of-the uniform and established mode of making such collections by the banks, and particularly the Union Bank of Maryland, in which he did all his business of.that character. This bill of exchange wap payable in tlie .District .of-Columbia, and the placing it with the defendants for collection, was equivalent toan agreement that it, should be. sent by them for that purpose to.some bank in the District of Columpia, to the Bank of Columbia, their established, agent, thus virtually constituting the Bank of Columbia, his agent, in that transaction, and if that agent did, in, qqnformity with the custom in. tVie District of Columbia, neglect to cause demand and protest tp' be made on the proper, day, the defendants are not chargeable with, any negligence, or other improper conduct. If they are.to be presumed acquainted with the custom, of the banks, in the District, the,same may be predicated, of the plaintiff, and that he-placed his bill with them for collection,, according to that custom, as it was their practice to do, in relation, to all other notes and bills payable, there.' This transaction is not. affected by.the general, law of bailment, except so far as concerns the transmitting of the bill to the Bank of Columbia; and if it had not been transmitted in due time, the defendants would be answerable for any loss sustained by reason of such negligence. But the Mil was sent on, in good time, and no negligence is chargeable to ;the defendants. Suppose a foreign merchant sends goods tc his consignee in Baltimore, with instructions to dispose of them for him to tli.e best advantage, the consignee ;ends [151]*151them to auction for sale, and the auctioneer makes way with the goods, or sells them and makes way with the money, and fails — In such, á case, (to which tins in principle may be aptly likened,) the consignee would clearlj not be answerable»
JUDGEMENT AFFIRMED.
Hawkins vs. Jackson, referred to in the preceding case, was in this court at Jane term on an appeal from Haiti wore county court. It was an action of assumpsit, brought by the appellee against the appellant as the endorser of an inland hill oí «¿change. The declaration contained only one count, which sta ted thatthe bill was dated on the 2d of November 18) 0, drawn ai Baltimore by Joh& 0/¿aimers, junior, upon John Chalmers, se ifior, at Washington, in the district of Columbia, requiring him, six months afterdate, to pay to the defendant, or order, 95, YVhich bill was accepted by John Chalmers, senior, and endorsed by the defendant to the plaintiff. That it was on the 6th of May J8U, presented to John Chalmers, senior, at Washington, in the district of Columbia, to wit, ¿I the county afoi esaid, ior payment, and he was then requested to pay, &c. but that he then and theie, at Washington, in, &c to -wit, at, &c. wholly failed, and made default, whereof the defendant had notice; and thereby and by reason thereof, and of the several other premises, and by foíxe oí the custom and law of merchants, the defendant became liable to pay to the plaintiff and being so liable he promised, &c. At the return day of the writ, March term 1612, the defendant appeared hi proper person, and ^ave special bail, and a rule was then íaid on him to plead by October term following, at which term the ¿•ule was extended to March term 1813, when the defendant having failed to plead, the court assessed the plaiftUfi’s damages to 0762 27, and entered judgment for the damages laid in the declamen, and( costs; to be released on payment oí the above sum, witli Interest thereon from the 23d of April 1813, and cgpCs, After’ wards, anddurtng the same term, the defendant appeared in court hy -counsel, and with the leave of the court filed an affidavit, gta» ting that he had spoken to huther Martin, esquire, one of the at* íorneys ofthe court, to appear for him and defend the action, soott alter it was instituted, who promised to do so; and that he had no information to the contrary, until he was informed that judgment was rendered against him. That he had been informed that thé suit could not he maintained against him, because the bill of exchange had not been protested in due time, and that no demand tres made on the acceptor of ¿he bill in dóe and proper time alter it became due. That he had no knowledge of the nonpayment of the bill, until a week or ten days alter it became due, and theft at was ¡mentioned to him hy a' gentleman in Baltimore. Tho plaintiff then filed in court his statement of the transactions between the drawer, endorsor and acceptor, and himself, relative to' the drawing, accepting and endorsing the bill; and he also filed sn court the bill, and the protest thereof made on the 6th of May 1811* The defendant then prayed the court to order the judgment to be stricken out, and that the defendant be permitted to plead non assumpsit, and he offered to proceed to the trial of the action at the present term without delay, or to continue the action until the next term, if desired by the plaintiff. But the court, [Bland9 A J ] was of opinion, that the judgment ought not to he struck, out, and refused the defendant’s prayer. The defendant excepted*, and appealed to this court. f i , , ; : ■ , ' ‘
f ■ The refusal of the couuiy court 'to st» ike out a i judgment entered |‘by default, and suffer the defendant to plead, K , not a subject pf appeal, ai»d..f*a2Lnot be revised by , the court of apper. Is,
; The. county : court cannot as-; sess damages on a. Judgment by lie- ■ fault, m an action , against (he en= dorsor of a bid of ' exchange, where ‘ th<* declaration does not set out a . cause of action, but shows that the bill was not presented for payment in time, whereby the defendant vas m law discharged from all liability on account of fetr endorsement,
The cause was argued at this term, (Jane 18IG,) before Buck» anasí, ¿Nicholson, Earls, Johmssh, and MaETINj J.
[152]*152Martin, for the appellant, 1, As the judgment was entered by default for wantot a plea, on the application of the defendant, and showing merits, it ought to have been, stricken out. %. instead-of awarding an inquiry of damages, the court assessed the damages on the bill of exchange, w-hen .there was no act of as„ sembly authorising them to do so. 3. The declaration was on a, bill of exchange, dated the 2d of November 1810, payable at the end of six months, and it wasVmt protested until the 6th of May 2811, which was not in due and legal time.
On the first point, he referred to Briscoe vs Ward, 1 Harr. & Johns 165. Cavil vs. Burneford, 1 Burr 568. 1 Sellon’s Pr. 346.
On the second point, to 7 Fin. Ab. 315, pl. 6, 7, 8. 2 Lill Pr. Reg 67. Vent. 347 2 Show. 86. 1 Rich. Pr C. P. 223. 2 Barnes. 192. Messin vs. Massareene, 4 T. R. 492. 1 Sellon’s Pr. 347, Chitty on Bills, 101, 102 Act of 1785, ch. 38.
On the third point, to Chitty on Bills. 138, 143, Philips vs. M‘Curdy, 1 Harr. & Johns. 187. Chase vs. Taylor, in this courfe at December term 1815.
Jf. Dorsey, for the Appellee, 1. The refusal of the court below to allow a plea to be amended, orto grant anew trial, or to continue h cause, is not to be assigned for error/ and there is no difference in refusing to permit the defendant to amend his plea, and refusing him to put in a plea and strike out the judgment, He referred to The Marine Insurance Company of Alexandria vs Hodgson, 6 Cranch, 206 Greene vs. Hearne, 3 T. R. 302 2 Suffering judgment to go by, default was an admission of the contract, declared on He referred to East India Company vs Glover, 1 Stra. 612. Tidd's Pr. 523, Bevis vs. Lindsell, 2 Stra 1149 Barnes, 233, 234. Anonymous, 3 Wils. 155. Thellusson vs. Fletcher, 1 Doug. 316. Longman vs Fenn, 1 H. Blk. Rep. 541. fí*he court might assess damages on a promissory note, or bill of exchange, without a writ of inquiry; he referred to Tidd's Pr 514 Shepherd vs. Carter, 4 T. R 275. Rashleigh vs. Salmon, 1 H. Blk Rep 252 Andrews vs Blake, Ibid 5 9. Longman vs. Fenn, Ibid 541. Thelluson vs. Fletcher, 1 Doug. 316. Messin vs. Massareene, 4 T. R 493. Goldsmid vs Taite, 2 Bos & Pull 55 Berthen vs. Street, 8 T R. 326. Nelson vs. Sheridon, Ibid 395. Byrom vs Johnson, Ibid 410. Osborne vs. Noard, Ibib. 648, and Sellon's Pr. 347.
Buchanan, J, delivered the opinion of the court The refusal, by the court below, to strike out the judgment by default, and suffer the defendant to plead, is not a subject of appeal, and Cannot bé revised by this court. But tha> court did wrong in assigning damages to the amount of the bilí of exchange, the declara** tion setting out no cause of action, but showing that the bill of exchange, on which the suit was brought, was not presented for payment in time, whereby the defendant was in law discharged from any liability on account of his endorsement.
JUDGMENT REVERSED