majority">Robinson, J.,

delivered the opinion of the court.

Demurrage was claimed by the appellee, upon the following bill of lading:

Shipped in good order and condition by Charles - Kimball & Co., on board the good schooner, called the R. L. Tay, whereof --is master for this present voyage, now lying in the Port of Boston, and bound for Baltimore, Md., to say, forty-three hundred bushels potatoes (in bulk) on board, to be delivered. Seven working days allowed for the discharge of the potatoes, after that, consignee to pay demurrage at the rate of forty dollars per day, for every day detained, being marked and numbered as in the margin, and are to be delivered in like good order and condition at the aforesaid Port of Baltimore, Md., (the danger of the seas only excepted,) unto Lewis Jones & Co., or assigns, he or they paying freight for the said goods in United States currency, at fifteen cents per bushel, with primage and average accustomed. In witness whereof the master or agent of the said vessel, hath affirmed to three bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void.

(Signed) C. T. FREEMAN.

Dated at Boston,--186

2 c. U. S. Stamp.

*276. Judgment by default being rendered for the plaintiff, for nine days’ demurrage, at forty dollars per day, for want of *affidavit to the defendants’ plea, a motion was made to strike out the judgment; because the cause of action was not a contract within sec. 6, ch. 6, of the Act of 1864. That section provides that, “ Every suit, where the cause of action is a contract, whether in writing or not, or whether express or implied, shall stand for trial or judgment on the first day of the term, or at the return day next succeeding the entry of the appearance of the defendant, whichever shall first happen, unless the time shall be extended by the court on cause shown.”

In this case, it is expressly stipulated in the bill of lading, that, in case of the detention of the schooner beyond the seven days allowed for discharging the cargo, the consignee shall pay demurrage at the rate of forty dollars per day. It is true the contract was made between the freighter and the appellee, the owner and master of the boat. But we understand the law to be, that when a consignee accepts the consignment in pursuance of the bill of lading, he accedes to and adopts the terms upon which the goods were shipped. In Harman v. Gandolphi, Holt, N. P. 35, Chief Justice Gibbs said: “ The consignee, by taking the goods, contracts with the owner of the vessel to perform the terms upon which they have undertaken to convey and deliver them.” Abbott on Shipping, marg. 310. And in Leer v. Yates, 3 Taunt. 386, the liability of the consignee for demurrage was expressly decided. Whether this liability may or may not be qualified by circumstances which render it impossible to discharge the cargo within the time specified in the bill of lading, it is' unnecessary, so far as this case is concerned, to decide. There being, therefore, an express contract to pay demurrage at the rate of forty dollars per day, it is our opinion that the cause of action comes within the provisions of sec. 6 of the Act of 1864, ch. 6. Wilson v. Wilson, 8 Gill, 192; Smithson v. U. S. Tel. Co. ante, p. 162. The second reason, because the defendants had not received notice of the affidavit to the plaintiff’s declaration, furnishes no ^ground for striking out the judgment. It appears from the record, that the plaintiff was in no default. He had filed his account, bill of lading, declaration and affidavit, in conformity with the Act of 1864, *277ch. 6. He is not to be prejudiced because the clerk, in making out copies of the same, omitted the affidavit.

Concurring with the ruling below, we affirm the judgment.

Judgment affirmed.

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