The Planters' Bank of Prince George's County vs. The Farmers and Mechanics' Bank of Georgetown, 8 G. & J. 449

Dorsey, Judge, delivered the opinion of the court.

Had the usages of banks (the existence of which, the several práyers in this case made" to the court appear to assume, and the argument on both sides impliedly yields, viz: that where a current .deposite of money is made in a bank, in the absence of all special stipulation to the contrary, it is to be paid to the depositor upon demand at‘the counter of the bank, and that where a note or draft deposited in a bank for collection is paid, the net proceeds of the amount thereof is carried to the credit of the depositor, and is held by the bank collecting it in all respects as if it were a current deposite of money) been proved to the jury, and submitted to their finding, it would materially influence the decisions of this court, in many of the determinations of the county court, which we are called on to review.

But these usages, however well known and recognized by the community at large, and adopted in all their transactions with the banks, not being of proof in the record before us, nor heretofore proved and established in courts of justice, cannot be judicially known to us, or sanctioned as general mercantile usages, which are a part of the law of the land, and our adjudications on the acts of the court below, must be made as if no such usages had ever existed.

In this aspect of the case, the county court were clearly in error in refusing the defendants’ first prayer in the first bill of exceptions, the act of limitations being a conclusive bar to the action whether “the defendants have refused to settle or allow the claim asserted by the plaintiffs,” or not.

For the same reason the county court were wrong in their refusal of the defendants’ second, third, fourth, and fifth prayers in the first bill of exceptions ; although' in the three former, the fact of a subsequent recognition by the defendants of the plaintiffs’ claim within three years before the institution of this suit (which would have removed the statutory bar) was not submitted to the finding of the jury.

There being no evidence offered of such subsequent recognition, the court properly withdrew that fact from the consideration of the jury. ' To test the accuracy of the county court’s refusal to grant the defendants’ prayer in the second bill of exceptions, we will assume, as the prayer does, that the existence of the aforementioned usages of the banks was to be judicially recognized by the court, ought the prayer then to have been granted ? We think not.

Before the act of limitations commenced running against the plaintiffs, payment of their claim must have been refused by the defendants, or some act must have been done by the defendants (a knowledge of which is brought home to the plaintiffs) dispensing with the necessity of a demand of payment at the counter of the Planters' Bank. Such dispensation is abundantly furnished by the acts of the defendants on the 10th of August, 1829. But were those acts known to the plaintiffs (without which knowledge the act of limitations does.not commence running against them) is the-question ?

The prayer of the defendants calls on the court to assume the fact of knowledge, and for that reason as the point was presented to them, they very properly refused the prayer.

Although the facts submitted to the finding of the jury furnish strong evidence of the plaintiffs’ knowledge thereof, yet they are not of that conclusive character to warrant the court in assuming the plaintiffs’ knowledge, and in the withdrawal of the determination of that fact from the hands of the jury. - But the court erred in not granting this prayer, because the fact of the existence of the banking usages referred to, not being in proof, could not enter into the consideration of the questions before them, and the act of limitations being a bar to the plaintiffs’ action, whether the alleged acts of the defendants ever occurred or not, or whether the plaintiffs had a knowledge thereof or not, the finding of the facts submitted to the jury, could not interfere with the running of the act of limitations, and therefore the prayer of the defendants ought to have been granted.

In our remarks upon this bill of exceptions, we wish it to be understood, that we by no means accede to the doctrine in the defendants’ prayer, and urged in the argument of this cause, that mere fiduciary relations between the parties to a suit, in respect to the matters in controversy, per se, prevent the running of the act of limitations.

There, is in a court of law no such bar to the operation of the act of limitations as “ trusts,’? otherwise than- as shewing the terms of the contract between the parties, and time at which the plaintiffs’ right of action accrued, and thus avoiding the statute by shewing that by the terms of agreement sued on, there has been no such lapse of time, since the right to sue commenced as would create a bar. See the case of Green, ex’r of Green vs. Johnson, ex’r, 3 Gill and John. 391.

From the views we have taken of this matter of trust, it is unnecessary for us to determine, whether conceding it to be an available defence against the act of limitations in a court of law, the plaintiffs could avail themselves of it in the present state of their pleadings. Giving to the opinion of the county court in the third bill of exceptions, that construction to which in fairness we think it entitled, we see in it nothing of which the defendants have any just ground to complain.

To obtain a verdict the plaintiffs were not bound to produce their running account with the defendants and prove all the items thereof, and claim nothing but the balance thus appearing to be due, but they were at liberty to prove any isolated receipt of money by the defendants and claim a verdict for the amount thereof, unless in the language of the court below, “ the defendants can shew satisfaction thereof, or an indebtedness on the part of the plaintiffs, in the course of the dealings, which took place subsequent to the year 1821, or before, if the settlement then made was in any respect or particular incorrect.” By this instruction the court do not mean, as has been supposed, to confine the Planters’ Bank exclusively to testimony offered by itself; but it may take advantage of the testimony adduced by the plaintiffs, to shew the balance of the accounts between the parties from January 1828 to 1829.

The rejection of the defendants’ prayer in the third bill of exceptions meets our concurrence. We concur with the county court in their opinion and instruction given to the jury, and in their refusing the defendants’ prayer in the third bill of exceptions; but dissenting from their refusals to grant the defendants’ prayers in the first and second bill of exceptions, we reverse their judgment. JUDGMENT REVERSED AND PROCEDENDO AWARDED.