
    RAY vs. PORTER.
    [ACTION ON BILL OF EXCHANGE BY ENDOESEE AGAINST ENDOBSEB.]
    1. Custom; proof of. in giving notice of protest of MU of exchange. — Held, upon the authority of the ease of Gindrat et al. v. The Mechanic's Baníc of Augusta, 7 Ala. 324, that it is permissible to prove a custom, or usage at a particular place, where the parties to a bill of exchange reside, as to the mode of giving notice of the protest of the non-payment of the bill.
    Appeal from the City Court of Montgomery.
    Tried before tbe Hon. T. M. Arrington.
    The appellant Bay commenced bis suit against the appellee, on tbe 29th March, 1866. Tbe cause of action was a bill of exchange, endorsed by the defendant. On tbe trial, as tbe bill of exceptions states, “tbe plaintiff offered to prove that it bad been tbe custom of all tbe banks of tbe city of Montgomery, and the custom of tbe bank of Montgomery, a corporation located in, and transacting business in tbe city of Montgomery for many years before tbe making, and at tbe maturity of this bill of exchange, to give notice of demand of payment, of tbe non-payment, and of tbe protest thereof of mercantile paper, deposited with and held by said banks for collection, and in their, own rights, in case of default of payment by tbe parties thereto, by sending notices of tbe. demands of payment, of tbe non-payment, and of tbe protest made on, and of such paper, by tbe notary public of tbe banks, on paper protested for non-payment, through tbe postoffice, of tbe city of Montgomery, where tbe parties to whom notices were to be given, resided in tbe city of Montgomery, it appearing that plaintiff, and tbe defendant resided in tbe city of Montgomery.” To tbe making of which proof, tbe defendant objected, and tbe court sustained tbe objection, and would, not allow tbe proof to go to tbe jury, to which ruling of tbe court tbe plaintiff excepted, and took a non-suit. He appealed to this court to have tbe same set aside.
    
      Martin & Sayre, for appellant.
    Wats & Troy, contra.
    
   BYRD, J.

The case of Gindrat et al. v. The Mechanic's Bank of Augusta, 7 Ala. 324, has for so long a time settled» without being questioned, the rule of commercial law applicable to this case, that we do not feel authorized in reviewing the authorities upon and disturbing it. We recognize that case as establishing the doctrine that it is permissible to prove a custom or usage at a particular place where the parties to a bill reside, as to the mode of giving notice of the protest of the non-payment of the bill. The only distinction in principle we can draw between that case and the cases of Barlow v. Lambert, 28 Ala. 704, and of Boone & Co. v. Steamer Belfast, in maunseript, decided at the January term, 1867, is, that it is allowable to prove a custom as to the mode of doing a particular act, such as making a delivery of goods by a common carrier at a particular place, when the contract is silent as to the mode of delivery, or of giving notice where it is necessary to fix a liability or discharge it; but, it is not allowable to prove a custom which dispenses with a positive rule of law which requires a delivery or notice, to fix the liability of parties, or to discharge them. I do not say that this distinction is one of universal application. It may be only tolerated in those branches of the law which are founded on usages and customs, and which are ever changing to suit the constantly varying necessities and circumstances of trade and commerce. Besides, when the Code adopted the commercial law as applicable to certain contracts and their incidents, we must presume that the legislature intended that the rules and principles of that law, as settled by this court, were to be taken as the exposition thereof.

Hence, we arrive at the conclusion that the evidence excluded by the court below was admissible. The sufficiency of the evidence to establish a custom which the law recognizes as valid, is not raised on the record.

The evidence excluded was admissible, and the judgment of non-suit must be set aside, and the cause remanded for further proceedings.  