date, and notice of Its nonpayment was given to usage. THIS case was ht Court of the United States for the District of Columbia, holden in and for stances of practice under this custom were shown. *Upon this state of facts the court [*540 instructed the jury that if they should “find the whole evidence aforesaid to be true, yet the plaintiff has not thereby shown that he has used due diligence in demanding payment, and giving notice of the non-payment of said note, and is not entitled to recover in this action. To this instruction the plaintiff excepted, and the case was now to be argued upon it. It was argued by Mr. Lawrence for the plainunt in error: tiff in error, and Mr. Bradley for the defend Mr. Lawrence, for the plaintiff in error, contended that the instruction was erroneous. It It was an action of assumpsit brought by is difficult to understand the ground upon Adams, the plaintiff in error, upon a promis- which the instruction was bottomed; whether, sory note drawn by Haw, Yellott & Company, in the opinion of the court, the plaintiff could in favor of Philip Otterback, the defendant in not recover, admitting the custom to be proved, error, and discounted by the Bank of Washing because the plaintiffs had not conformed to it; ton. The proceeds of the discounted note were or whether, in the opinion of the court, the paid by the bank upon the check of Otterback. custom itself was not, as a fact, proved by the After the note had been protested for non-pay-evidence; or whether, lastly, it was not legally ment, and notice of protest had been given to competent for the bank to change an ancient the indorser, it was assigned to Adams, the plaintiff in error. On the trial of the cause the plaintiff gave in evidence the note, the handwriting of drawers and indorser being admitted, and proved that the note was discounted on the 11th of March, 1848, the day of its date, and the proceeds paid on defendant's check; that the note (which was payable at sixty days) was unpaid at maturity, and was delivered to George Sweeny, a notary, on Monday, the 15th day of May, 1848, after 3 o'clock, who on that day demanded payment, which was refused, and thereupon, on the same day, he delivered a notice for the indorser at his dwelling. custom and introduce a new one. Upon one or other of these grounds the instruction must have been given, and upon either of them it was erroneous. 1. That the court may instruct the jury that the plaintiff cannot recover against the indorser of a promissory note if they believe the evidence, and that evidence proves a particular custom, and at the same time proves that the plaintiff did not conform to that custom, we are not called upon to deny, because such is not the case here. The evidence clearly proves that the demand of payment and the notice of protest were in conformity with the altered us age, if that altered usage is itself established. The plaintiff also gave in evidence by the 2. If the meaning of the instruction was that teller and book-keeper of the bank, that after the custom itself, as alleged, was not proved by the decision of the case of Cookendorfer v. Pres- the evidence in the cause, then it was erroneous, ton, and about two years prior to the date of because it was an invasion of the province the note in controversy, the bank changed the of the jury. There was certainly evidence custom which had previously prevailed in re- tending to prove that the old custom had been gard to the demand and protest of negotiable changed, and the new custom introduced. discounted notes held by the bank, and that in Whether that evidence did prove it, was for the all cases of discount they had up to that time jury to determine. It was not one of those held the paper until the fourth day of grace; cases in which a demurrer to evidence would and by the change, if that fourth day of grace lie, upon the ground that the quality of the evihappened to fall on Sunday, it became the cus- dence was not such as is required by law, whattom of the bank to retain them till Monday, ever might be its tendency. For, in all the and on that day deliver the same to the notary cases in this court, it has been held that it was to demand payment and give notice. And on competent to prove the custom of a bank by cross-examination it appeared that only four in-parol evidence. Renner v. Bank of Columbia, reference to usage, may be explained by parol evidence of the usage. Cort. v. Com. Ins. Co. 7 Johns. | 385; Allegre v. Maryland Ins. Co. 6 Harr. & J. 408; Robertson v. Clarke, 1 Bing. 445; Renner v. Bank of Columbia. 9 Wheat. 591; Columbia Ins. Co. v. Catlett, 12 Wheat. 383; Hancock v. Fishing Ins. Co. 3 Sumn. 132; Lewis v. Marshall, 7 Man. & G. 229; 8 Scott, N. R. 447. But the rule is limited to the extent that the usage must be consistent with the principles of law, and not go to defeat the essential provisions of the contract. Palmer v. Blackburne, 3 Bing. 61; Bryant v. Com. Ins. Co. 6 Pick. 131; Rankin v. American Ins. Co. 1 Hall N. Y. 619; Hall v. Janson. 4 El. & Bl. 500: 1 Jur. N. S. 571: 24 L. J. Q. B. 97; Miller v. Tetherington, 6 Hurlst. & N. 278; 7 Hurlst. & N. 954. No particular usage or custom can be admitted to alter or impair a clean and express written contract. It can only be admitted when the Intention of the parties is indeterminate, and the language of the contract may admit of various fenses If the words used in the contract be technical, or local, or generic, or Indefinite, or equivocal, on the face of the instrument, or are made so by proof of extrinsic circumstances, parol evidence is admissi ble to explain by usage their meaning. If there be no such ingredient of uncertainty, then the evi dence is not admissible. Yates v. Pyrr, 6 Taunt. 445: Blacket v. Royal Exchange Ins. Co. Cromp. & Jer. 244: Fowler v. Aetna Ins. Co. 202; Trueman v. Loder, 11 Ad. & Ell. 589. A particular word may be shown by parol evidence to have a different meaning in some partic ular place, trade or business, from its ordinary ac ceptation. Mallan v. May, 13 Mees. & W. 511. Evidence of the usage of a particular place, to affect the construction of a contract is admitted only on the principle that both parties to the con 9 Wheat. 587, 589; Mills v. Bank of United | and custom of that bank are incorporated into States, 11 Wheat. 431. the contract of discount, and become a constitNor was the instruction proper upon the uent part of that contract between the parties 541] ground that the *number of instances which had occurred within the two years since the adoption of the new custom were not sufficient in number to prove a new custom, or to bring it to the knowledge of the defendant. Because, if it be admitted that a custom may be changed, there must be a time when the change must commence, and there must be a first and single instance of the new custom; and in the case of Mills v. Bank of the U. S., and Bank of Washington v. Triplett & Neale, 1 Pet. 25, this court has already decided that it is not necessary that a custom should have actually been brought to the notice of an indorser. But on the contrary, it is the duty of the indorser to acquaint himself, by inquiry, with the custom of the bank with which he deals. 3. It was competent for the bank to change its custom whenever in its discretion the interests of the bank should require it. There is no inexorable rule of law which binds down such an institution to one eternal routine of business, notwithstanding the changing interests of commerce may demand a modification. On the contrary, this court has held that which the sound principles of commercial business dictate, viz.: that a bank may change its custom, and may prove that change in the same manner as they may prove the original custom. Cookendorfer v. Preston, 4 How. 326. The plaintiff in error would therefore submit, that if it is competent for a bank to change its usages; if there is evidence in the case tending to prove such a change; if there is evidence in the case tending to show that the bank had made demand and given notice in accordance with such altered usage, then the instruction, that if the jury find the whole evidence of the plaintiff to be true, yet he was not entitled to recover, was erroneous. to that note and the bank. And this is the case, although the parties never before had dealt with that bank; the paper was not made payable or negotiable at the bank; the usage and custom of that bank differed, in that respect, from those of all the other *banks [*542 in the same community; and this particular usage and custom had been introduced by that bank within a short period, without notice, public or otherwise, and was unknown to the parties to the note; and before such change, that bank had conformed to the usage and custom of the other banks in that community; or, in other words still, a party applying to a bank to discount for him negotiable paper, is bound to inquire, if he does not know, the special usages of that particular bank in respect to negotiable paper discounted by it, at the time of such discount, and he is not to rely either on the known and established usage and custom of all the other banks in the same community, or upon the particular usage of that particular bank up to the day before such discount, but he must ascertain if any change has been made in such usage, as he will be bound by it whether he knows it or not. It is conceded by the defendant in errorThat a custom or usage of a bank, brought home to the knowledge of a person dealing with the bank, in respect to the discount of negotiable paper, enters into the contract, becomes a constituent part of it, and must have its due weight in the exposition of it. Bank of Columbia v. Magruder, 6 Harr. & J. 180. This knowledge may be proved directly, or may be implied from the dealings of the parties. It may be inferred from persons dealing with the bank, which has a well-established usage. Lincoln & Kennebec Bank v. Page, 9 Mass. 155; Same v. Hammatt, Ib. 150; Smith v. Whiting, 12 Mass. 8. Blanchard v. Hilliard, 11 Mass. 88; Jones v. Mr. Bradley, for defendant in error: This case turns upon the right of a bank, without notice, public or otherwise, given to From the parties being accustomed to transthe persons dealing with it in the way of dis-act business of that kind with the bank. counting negotiable paper, to change the usage and custom of the bank in respect to the demand of payment of the notes, and giving notice to the indorsers, so as to bind the indorsers by such change. In other words, to maintain the plaintiff's case, it must appear that when a man procures a note to be discounted by a bank, by that act alone, the usage tract were cognizant of the usage, and are presumed to have made the agreement with reference to it. No such presumption arises if one of the parties is ignorant of such usage or custom. Kirchner v. Venus, 12 Moore P. C. Č. 361; 5 Jur. N. S. 395; 7 W. R. 455; Sweeting v. Pearce, 7 C. B. N. S. 449; 6 Jur. N. S. 753; 9 C. B. N. S. 537; 7 Jur. N. S. 800. A custom, to control the words of a covenant, must be one which both parties to the covenant can know, and must be certain and invariable. Abbott v. Bates, 22 W. R. 488. Usage may control or supersede construction or rule of law if the usage be general, uniform, notorious, reasonable, and consistent with the terms of the contract, and to a certain extent with the rules of law. A valid usage is part of the contract. 1 Duer on Ins. 255-282, 283-311: Story on Bills, 161: Wallace v. Bradshaw. 6 Dana (Ky.) 386; Paxton v. Courtney, 2 Fost. & Fin. 131. A custom or usage, to be admissible and valid, From the negotiable paper being made paymust be certain, reasonable, and sufficiently an cient, to afford a presumption that it is generally known. U. S. v. Buchanan, 8 How. 83, 102; Coxe v. Heisley, 20 Penn. St. 246; Collings v. Hope, 8 Marsh, C. C. 149; Wilcox v. Phillips, 1 Wall. Jr. C. C. 47. It must be general and uniform, but need not be universally acquiesced in. Desher v. Holland, 12 Ala. 513, 519 Benton v. McKelway, 2 Zabr. 165, 175; Maitland v. Ins. Co. 3 Rich. 331, 333. It may be established by the testimony of a single witness, if his means of knowledge are abundant, and his testimony full and satisfactory. Vall v. Rice, 1 Selden, 156. Local usage is not admissible to control the general rules of law in the interpretation of contracts. Thompson v. Riggs, 5 Wall. 663; Brown v. Jackson, 2 Wash. C. C. 24; Hinton v. Locke, 5 Hill. 437. A custom opposed to a statute is void. Walker V. Transportation Co. 8 Wall. 150; Winter v. United States, Hempst. 344. able or negotiable at the particular bank. In ¡ is a general note, so to speak-not a note payaddition to the cases cited, see, also Yeaton able or negotiable at any particular bank, or v. The Bank of Alexandria, 5 Cranch, 52; | having any reference to any particular [*544 Renner v. The Bank of Columbia, 9 Wheat. or special usage. His contract bound him to 585; Brent's Executor v. The Bank of the Me- the general usage on its face, and as surety he tropolis, 1 Pet. 93; Mills v. Bank of U. S. 11 is entitled to all the benefit of that general Wheat. 431. usage. It was, that if the maker did not pay at maturity he would, provided demand was made on the maker, and notice given to him as indorser, according to the general usage. But it is contended by the defendant: I. In all cases the usage to bind the parties must be a known, established, and invariable usage. See all the cases cited. The plaintiff sets up another contract, not inferred from any dealings, nor exhibited in any knowledge brought home expressly or by any recognized implication, to the defendant. It is submitted that the Circuit Court was right in giving the instruction. II. It is not strictly a rule of judicial deci-apparent on the face of the paper, nor to be sion, but is compounded of law and fact, and is admissible, in evidence, to show the contract of the parties, and their assent to such usage. 543] See *11 Mass. 88; 4 Mass. 252; 6 Mass. 450; 1 Harr. & Gill, 239; 3 Conn. 489; and the cases in this court above cited, and those cited by plaintiff in error. III. A usage may be changed. Cookendorfer v. Preston, 4 How. 317. But the knowledge of that change must be brought home to the party to be affected by it. This may be in any of the modes already mentioned, or in some other mode from which it may justly be inferred that the party knew or ought to have known it. IV. In this case it is admitted that, by the usage of the bank, existing up to the spring of 1846, the demand and notice set up in this action would have been insufficient. It is admitted that no notice, public or otherwise, was given of the alleged change; it is not shown how the change was made; there are but three instances of practice under the alleged change, all of which were in the spring of 1848. It is not pretended that the defendant ever had any dealings with the bank prior to this time; the note was not made payable or negotiable at the bank; and the court is now asked to go, for the first time, the length of saying that every man to whose credit a note is discounted by a bank, is bound by all the usages of that bank in regard to demand and notice of that note, although he has never dealt with the bank before, and the note was not made negotiable or payable there, and there is no fact or circumstance in the case from which it can legally be inferred that he knew the said usage. It will not do to say he received the avails. If the law binds him it binds all the intermediate parties between him and the maker. Nor does it follow, that because the avails ostensibly went to his credit, that he derived any benefit from them. He was the payee, and last indorser. They must have gone to his credit. But the money was on the same day paid to bearer on his check. It may well be inferred that it was paid to the makers; that the note was made for their benefit, to be discounted wherever they could get it done, having no reference to this particular bank, or it would have been made payable and negotiable there. The check also is for "proceeds of" this note, discounted this day for $800, the usual form in which the proceeds of a discounted note would pass to the credit of the maker. Nor will it do to say that it was discounted on his credit. He then stood in the condition of a surety. As surety he is not to be bound beyond the terms of his contract. His contract was made with reference to the existing and well-known commercial usage, and the banking usage of the community in which he lived. It Mr. Justice McLean delivered the opinion of the court: This was a writ of error to the Circuit Court of the United States for the District of Columbia. This action was brought on a promissory note dated the 11th March, 1848, given by George W. Yellott, Henry Haw, and William B. Scott, in the name of Haw, Yellott & Co., in which they promised to pay to Philip Otterback, Esquire, or order, sixty days after date, the sum of $800, for value received; which note, before it became due, was assigned to the plaintiff. The general issue was pleaded, and the cause was tried by a jury. The note was discounted by the Bank of Washington, the proceeds of which were drawn by the defendant. The following facts appear in the bill of exceptions: the note was unpaid at maturity, and on Monday, the 15th of May, after 3 o'clock of that day, was delivered by the bank, to George Sweeny, the notary employed by said bank, to demand payment thereof, and for protest if not paid. The notary stated that he demanded payment at the United States Hotel, and was answered "neither of the proprietors are within, and it cannot be paid." On the same day notice was left at the dwelling of the indorser. The witness further stated, that he had been teller of the bank since the year 1836, and that after the decision of the case of Cookendorfer v. Preston, by the Supreme Court, in 1846, the said bank changed the usage and custom which had theretofore prevailed therein, in regard to the demand and protest of negotiable paper held and discounted by it; and in all cases of discount they thereafter held the paper until the fourth day of grace; and if the said fourth day fell on Sunday, it was under the said change the custom of the bank to retain it until Monday, and on that day to deliver the same to the notary to demand payment and give [*545 notice; and Sylvester B. Bowman, book-keeper of the bank, states that since the decision of said case, the usage had been changed by the the bank, as above stated. No notice of such change had been given, so far as the witness knew; and it was further stated that four cases had occurred in which the notes becoming due on Sunday, the notice was given on Monday. On the evidence, this court instructed the jury that the plaintiff had not used due diligence in demanding payment and giving notice of non-payment to the indorser-to which the plaintiff excepted. This court, by several decisions, have sanctioned the usages of the banks in this district, in making demand and giving notice of nonpayment, varying from the law merchant. Renner v. Bank of Columbia, 9 Wheat. 587, 588; Mills v. Bank of the U. S. 11 Wheat. 430; and in some instances where, in this respect, notes left in a bank for collection, have been placed on a different footing from notes discounted. Cookendorfer v. Preston, 4 How. 324. the jury; the judgment of the Circuit Court in This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs. lef, Appellants, But these usages had been of long standing and of general notoriety. Rights had grown up under them which could not be disregarded without injury to commercial transactions. In the case before us the usage relied on, and under which notice to the indorser was given, WILLIAM LIVINGSTON and Ebenezer N. Cahad been adopted by the bank two years before the note in question was discounted, but it seems only four cases had occurred under it. No public notice was given at the time of its adoption, and no presumption can arise from the facts stated, that the indorser could have had notice of the usage. It is said, if a bank may establish a usage, it may change it; and that there must be a beginning of acts under it. This may be admitted, but it does not follow that a usage is obligatory from the time of its adoption. To give it the force of law, it requires an acquiescence and a notoriety, from which an inference may be drawn that it is known to the public, and especially to those who do business with the bank. It is unnecessary to consider whether a usage adopted might acquire force from public notices generally circulated. No such notice was given in this case. But to constitute a usage, it must apply to a place, rather than to a particular bank. It must be the rule of all the banks of the place, or it cannot, consistently, be called a usage. If every bank could establish its own usage, the confusion and uncertainty would greatly exceed any local convenience resulting from the arrangement. In this country and in England, three days of grace are given by the general commercial 546*] law, and the day the note matures is not one of them. In Hamburg, the day the bill falls due makes one of the days of grace. Notice must be given to the drawer or indorser on the day the dishonor takes place, or on the V. WILLIAM W. WOODWORTH, Administrator Misjoinder, objection of, too late on appeal- Where the assignors of a patent right were joined with the assignee for a particular locality, in a bill for an injunction to restrain a defendant from the raised, in this court, and after a final decree, an obuse of the machine patented, and the defendant jection arising from a misjoinder of parties, the objection comes too late. sented to the decree under which the account in Moreover, in the present case, the parties con controversy was adjusted. That consent having been given, however, to a decree by which an account should be taken of gains and profits, according to the prayer of the bill, the defendant was not precluded from objecting to the account upon the ground that it went beyond the order. The report having been recommitted to the master, with instructions to ascertain the amount of profits which might have been realized with due diligence, and the master having framed [*547 his report upon the theory of awarding damages, this report, and the order of the court confirming it, were both erroneous. should have been for only the actual gains and profits during the time when the machine was in operation, and during no other period. Under the circumstances of this case, the decree Tof the United States for the District of next day. If notice be given through the post office, it must be forwarded by the first mail All the facts of the case are stated in the after the demand of payment. If the note fall due on Sunday, under the general law, the de-opinion of the court, to which the reader is remand of payment must be made on Saturday. ferred. Mr. Schley made the following points: The usage is not proved in this case. Four It was argued by Mr. Schley for the appelinstances, in the course of two years, are insuf-lants, and by George T. Curtis for the appelficient to establish a usage. Such a rule would, lees. in effect, abolish the commercial law, in regard to demand and notice on promissory notes and bills of exchange. There is ground to doubt whether any deviation from the general law has not been productive of inconvenience. No explanation is given why the demand of payment on the note was made at the United States Hotel, in this city. Such a demand would seem to be insufficient. We are therefore of the opinion, that there was no error in the instructions of the court to 1. The account ought not to have been taken from the date of the patent. The title of the complainant, Tyler, was not complete until 1st July, 1848, nor the title of Brooks until the 10th May, 1848. At the furthest, the account ought not to have been taken from a period prior to the latter day. 2. The account ought not to have been conNOTE. Rule of damages. Approved in Dean v. Mason, 20 How. 198. tinued beyond the time of the filing of the bill. There are cases, undoubtedly, in which the account is continued to the date of the report; but this is not such a case. 3. It was clearly erroneous to allow interest. from the day of filing the bill, on the whole amount; as part of the amount accrued after that date. Upon the case, as it stood in court, actual "gains and profits," and nothing more, ought to have been charged against the defendants. If damages, beyond actual gains and profits, were asked, the complainants should have sought another forum. Curtis on Patents, sec. 348; Hindmarsh on Patents, 361-365; Crossley v. The Derby Gas Light Co. 3 Mylne & Craig, 428, 433; Bacon v. Spotswoode, I Beav. 387; Colborn v. Sims, 2 Hare, 560; 2 Eden on Injunctions, 251; Phillips on Patents, 457; Webster on Patents, 119, 168, 238; Lee v. Alston, 1 Ves. Jr. 82. 5. The allowance of $1 per thousand was not warranted by the evidence in the cause; even if, in other respects, the decree was right. The allowance was excessive, upon the merits, as disclosed in evidence. The points made by Mr. Curtis, for the appellees, were the following: I. The first point that will be submitted, on behalf of the appellees, will be, that this being a bill for an injunction and an account, and a decree having been entered by consent 548*] of parties (Record, p. 68), that the complainants were entitled to the injunction and account prayed for in the bill, an appeal does not lie from the final decree, which merely ascertains the items of the account which the appellants consented should be taken. That an appeal cannot be taken from a decree entered by consent, counsel will cite 2 Daniel's Ch. Pr. 1179, 1180; Bradish v. Gee, Amb. 229; Harrison v. Rumsey, 2 Ves. 488; Atkinson v. Marks, 1 Cow. 693; Corning v. Cooper, 7 Paige, 587. There is a case in Ohio which is otherwise, founded on the peculiar provisions of the statute allowing appeals. Brewer v. The State of Conn. et al. 9 Ohio, 189. But there is nothing in the provisions of the Judiciary Act of 1789, or in the Act of March 3, 1803, sec. 2, allowing and regulating appeals in equity, to prevent the application by this court of the rule, that when a decree has been taken by consent, it cannot be disturbed by an appeal or a rehearing. The object of the Act of 1803 is stated in the case of The San Pedro, 2 Wheat. 141, 142. The only question in this case is, whether the consent decree, entered May Term, 1840 (p. 18), does not render the final decree (p. 51, 52) a decree by consent also. It will be contended that it does: 1. Because, by the first decree, the appellants consented that the appellees were entitled to the perpetual injunction, and "the account prayed for in the bill;" and all that remained to be done was to ascertain what account was prayed for in the bill. 2. Because, by the first decree it was expressly declared that the parties consented to have the account commence at such a time as should be found by the master, and be confirmed by the court-a stipulation as binding on both parties as if they had made the same point the subject of arbitration. But if the appeal was rightly taken, counse for the appellees will contend, II. That the second decretal order to the master, by which he was directed to ascertain the amount of profits which may have been, or, with due diligence and prudence, might have been, realized by the defendants for the work done by them" with the machine complained of, taken in connection with the principles laid down by the court in their opinion (see appendix to this brief), stated the true rule for this case. 1. It appears, by an account filed with the master at the first hearing, that the appellants had been using the machine complained of from July, 1845, to July, 1848, and had planed therewith 3,962,760 feet of boards during that time. It also appears that they had received an average of $2 per thousand feet for this work; and in their answer they state that this work was done at an average expense of $1.50 per thousand "feet, leaving 50 cents, only, [*549 as the net profit actually realized on a thousand feet. But they do not profess to do this with entire accuracy, but as an "approximate estimate." In this state of the facts, the master, assuming that he was to find only the actual net profits realized, heard evidence on the part of the complainants which tended to show that a thousand feet of boards could be planed for a less cost; and also, evidence on the part of the respondents, tending to show that it would cost as much as they had stated in their answer; but he held that the result of the whole evidence did not authorize the conclusion that the respondents had not truly stated the actual cost, and, accordingly, he reported $1.50 as the cost per thousand, leaving an actual profit of 50 cents only. As it stood on the master's first report, therefore, there was evidence tending to show that, in charging $1.50 per thousand as the cost of planing, the respondents had conducted the business with less skill and prudence than it might have been conducted. The master's con clusion was based wholly on the idea that the actual net profits furnished the rule, and that the evidence did not control the statement of the answer as to the amount of such actual profits. An exception being taken and argued, it appeared to the court that here was a state of facts which required the application of a different rule, and the cause was recommitted to the master, by the second decretal order, and the accompanying instructions. The rule announced was, that the master was to report the profits which the respondents might have made with due diligence and prudence; and the principle adopted by the court was, that the respondents were to be charged as involuntary trustees, accountable, like mortgagees in possession and other similar trustees, for the profits which might have been received with due care and prudence. To apply this rule rendered it necessary to hear evidence on both sides, and to take the average given by all the testimony of what it would cost to plane 1,000 feet. The result of |