common stock. In the case in the text, the intent and purpose were self-preservation; the safety of the cargo was indeed the incident and consequence, but not the purpose and intent of the resistance. The third requisite is, as stated above, that the common concern should be saved by the partial sacrifice; for if lost, the whole fund is gone, and every partner, of course, loses his share. The health and limbs of the seamen are part of the materials of the seamen; they are the means of his doing his duty. They are hired with the men. Whatever accident occurs to them is an incident belonging to the man himself. It is tantamount to an injury to his tools or means of work. But the rule of the ancient law, and which is fully adopted by our own, is, "that the broken tools of an artificer shall be at the loss of himself, and not of his em ployer." In the same manner with the ship, and the perils of navigation to which it is incident. They are all in the same way exempted from general average; in the first place, from the nature of the thing and, secondly, because there is always an implied understanding that incidents of this kind shall fall upon those by whose caution, in their own immediate peril, they may be best guarded against.

There are some cases on the subject of general average in the modern reports, but much is not to be collected from them. The safest guide will be principle well studied and understood. Berkley v. Presgrave, 1 East, 220. Covington v. Roberts, 2 Bos. and Pull, New Rep. 378. Hunter v. Prinseps, 10 East, 378.

*YORK LENT ASSIZES, 56 GEO. III. 1816.

[*197

SENIOR v. SIR GEORGE ARMYTAGE, Bart.

A custom for the tenant of a farm in a particular district to provide work and labor, tillage, sow. ing, and all materials for the same, in his away-going year, and for the landlord to make him a reasonable compensation for the same, is valid in law, notwithstanding the farm is held under a written agreement; provided such agreement does not in express terms exclude the

custom.

ASSUMPSIT special, by tenant against landlord, to recover a certain sum by way of compensation for half-tillage, crops sown, value of away-going crops, &c. under the denomination of tenant right, according to the custom of the country. The declaration stated the custom to be, for the tenant to provide work and labor, tillage, sowing, and all materials for cultivation, in the awaygoing year; the landlord to make a reasonable compensation for the same, except in the case of exemptions by special agreement. The declaration, moreover, contained an averment that defendant was not exempted from the operation of the custom by any special agreement.

This cause had been tried at the last assizes, before Mr. J. Bayley, when it appeared upon the evidence for the plaintiff, that a written agreement existed between the parties; and the learned Judge being of opinion that the plaintiff was bound to produce the agreement, and that the custom was controlled by it, directed the plaintiff to be nonsuited. *But the Court of King's Bench afterwards decided, that, unless the agreement in express terms excluded [*198 the custom, it was still operative. The Court, therefore, set aside the nonsuit and directed a new trial.

The plaintiff's counsel now contented themselves with proving the custom, which appeared to prevail only in the immediate neighborhood of the defendant's estates, and to be almost confined to those estates.

The defendant's counsel, having procured evidence of the existence of the written agreement, contended, that the plaintiff ought to produce it, in order to support the averment in the declaration, that it did not exclude the custom.

To this it was answered, that the plaintiff was not called upon to prove a negative, and that it was incumbent upon the defendant to show that the agree ment excluded the custom.

Of such opinion was Lord Chief Baron Thompson.

It was then objected for the defendant, that, as it appeared in evidence that the custom was not a general custom, but prevailed only in a particular district, it was not binding on the defendant.

But the Chief Baron was of opinion that it was sufficient for plaintiff to show that the custom existed in the particular place.

*The defendant's counsel afterwards addressed the jury on the unrea*199] sonableness of the custom against the landlord, to establish which they called several stewards of the first landholders in the county of York; they further contended that the written agreement was incompatible with the sup posed custom.

On the other hand, the plaintiff's counsel contended, that one clause in the agreement (viz. that all manure, compost, &c. was to be used on the farm, and left on the land at the expiration of the holding, without the tenants' claiming any allowance for the same) implied the existence of the custom.

The Chief Baron told the jury, that this was quite a distinct custom from that which usually prevails between the in-coming and out-going tenants. But that, if they were satisfied of its existence (about which there could be little doubt, as it was in evidence that the defendant had paid the amount of a valua tion made under it to the former tenant of this very farm) they must find a verdict for plaintiff. And that as to the special agreement, in order to control the custom, it must be of such a nature that it operated upon, and prevented, in express terms, the custom from attaching, which did not appear to be the case here. The jury found for the plaintiff.

Scarlett and Richardson for plaintiff.
Raine, Heywood, Maude, and Littledale, for defendant.

Though, in respect to written instruments generally, no custom or usage can be introduced to add any thing to the terms of the contract, which the parties (in the full deliberation which the law always presumes to accompany such instruments) did not think proper to stipulate; yet, in leases of farms, &c. the usage or custom of the district, as a kind of lex loci, is allowed to add either to the form of the stipulations, or to annex even suppletory obligations of its own, so "far as they are not contradictory to what is expressed in the written instruments. The reason is evident. The law presumes that each party intended what each knew to be the common practice of the vicinity, and that each omitted the express mention of it, only because it was so

notorious.

Thus in Wiglesworth v. Dallison, Douglas, 190, in which the alleged custom was, for ten. ants, whether by parole or deed, to have the away-going crop after the expiration of their terms; amongst the several objections urged to this custom, it was contended, that a lease by deed precluded the operation of the custom, as the parties must be supposed to have described all the circumstances relative to the intended tenure in the written instrument.

LORD MANSFIELD." The custom of a particular place may rectify what would otherwise The custom does be imprudence or folly. The lease being by deed does not vary the case. not alter or contradict the agreement in the lease; it only superadds a right which is conse. quential to the taking; as a heriot may be due by custom, although not mentioned in the grant or lease." Dougl. 197.

*201]

SMITH v. BOLTON, Esq.

In an action against the hundred, held, that they are only liable for things demolished by the rioters, or destroyed in the demolition of the house, and not for any goods stolen or lost from the premises.

THIS was an action against the hundred on the stat. 1 Geo. I. st. 2. c 5, brought by the tenant of a public house at Hull, to recover the amount of damage done to the furniture, liquors, plate, china, money, and wearing apparel of

H

himself and his wife, in consequence of the demolition of the house by a mob of rioters. The landlord had recovered, in the preceding cause, the amount of the damage done to the freehold. The sum now sought to be recovered was 4341. There was no doubt as to the riot and demolishing, which were occasioned by the impressment of a seaman, who had been rescued; and the press-gang had fled to this house, which was their general rendezvous.

But the defendant's counsel contended, that the amount of the damages must be confined strictly to the value of those articles which had been actually demolished by the rioters; and could not be extended to those which, for any thing that appeared in evidence, might have been surreptitiously removed from the premises; that this latter was a distinct felony, and the act meant that the hundred should make compensation only for the damage which was the direct and immediate consequence of the offence.

[*202

*They admitted the hundred to be liable for the value of furniture and china found broken, and the casks staved, upon the premises; but they denied their liability for the plate, money, and clothes, concerning which no evidence had been given, except that they were upon the premises a short time previous to the demolition of the house.

LE BLANC, J.-I agree with you, in point of law, that the hundred are not liable for things that are not demolished by the rioters, or destroyed by the demolition of the house-that they are not liable for any thing stolen or taken

away.

The defendant's counsel called no witness, and

LE BLANC, J., told the jury, that their province was to estimate the damage by demolition which had been the immediate consequence of the riot. That the difficulty would be, to ascertain what were the things which had been either wholly or in part destroyed. That there was no actual proof of the removal of any of the articles: but it was difficult to conceive how the plate, clothes, or money in the till, could be destroyed in the demolition of the house. That the amount of the damage acually proved was 857.

The jury gave the plaintiff 100%.

Scarlett and Alderson, for plaintiff.

F. Pollock and Wray, for defendant.

*In a case tried at Westminster sittings, after Hilary term, 1816, Lord Ellenborough, [*203 C. J., held, that in order to sustain this action against the hundred, circumstances must be proved from which the jury may infer that the object and intent of the mob was totally to demolish the house, &c. The words of the act begin, "shall begin to demolish, &c." And, therefore, that where the mob, after breaking the windows, and doing other damage to the house, had retired without demolishing it, and without any disturbance having been given to their operations, the hundred was not liable. But slight evidence is sufficient to raise the presumption of an intent to demolish; and therefore, in the same case, it having been afterwards proved that there were military patroling the streets in the neighborhood of the house in question, that the rioters were dispersed in various parties, which kept up a communication by sig nals, and that previous to their retiring from the house it was observed that a signal was received by the party demolishing; his lordship directed the jury that these were facts from which they might fairly infer that the rioters were checked in their proceedings by the proximity of the troops, and had begun their operations with an intent to demolish.

They accordingly found for the plaintiff.

Hyde v. Cogan; and Reid v. Clarke, 7 T. R.

For cases upon this act, vide Ratcliffe v. Eden, Dougl. 699. Wilmot v. Horton, there cited. Pritchett v. Waldron, 5 T. R. 14. 496. Burrows v. Wright, 1 East, 615. Greasley v. Higginson, 1 East, 631. There is likewise a very elaborate and learned note upon the construction of this act, William's edition of Saunders, Vol. 2, 377 a.

*204]

*LANCASTER LENT ASSIZES, 56 GEO. III. 1816.

BREED et al. v. GREEN et al.

A. & Co. of Liverpool employ R. & Co. as their bankers there: R. & Co. keep an account in London with J. & L. But A. & Co. have no account with J. & L. A. & Co. direct their agents in London to pay moneys to "their account at the house of J. & L. As A & Co. had no account of their own with J. & L. but through the medium of R. & Co. of Liverpool, and as their agents had been in the habit of paying moneys of A. & Co. to the account of R. & Co. at the house of the London bankers of R. & Co.; held, that the direction of A. & Co. to their agents to pay to "their account was sufficiently complied with, by a payment made to the account of R. & Co. as the agents had been in the habit of doing.

MONEY had and received. The plaintiffs had employed the defendants as their agents and consignees in London, to sell goods, and dispose of the proceeds according to their directions. They had at first been directed to pay the proceeds into the banking-house of Esdaile & Co., afterwards into the house of Jones, Loyd & Co. Plaintiffs had no account of their own with either of these houses, but Roscoe & Co. were their bankers at Liverpool, who kept an account with Esdaile & Co., which account they had just transferred to Jones, Loyd & Co. The particular transaction arose out of the sale of some American stock.

On the 20th of January, 1816, the plaintiffs wrote to the defendants, desiring them to sell the stock, and to pay the proceeds to Jones, Loyd & Co., adding "for our account." On the 23d, the defendants answered that they had accepted the order, and would pay in the proceeds the next day, "for *205] their account." On the 25th they wrote as follows: "We have paid the money, agreeably to your desire, into the hands of Jones, Loyd & Co. We inquired if you had an account open with them that we might have it placed thereto; but, being told you had not, we desired it to be placed to the credit of your account with Roscoe & Co. We trust we did right; this being, in fact, the only manner in which Jones, Loyd & Co. would take it at all." Several orders were read, in which plaintiffs had directed the defendants to pay money to Esdaile's house, to be placed to the credit of their account with Roscoe & Co., and the defendants had never paid, on any occasion, money to the sole account of the plaintiffs at either house. In one or two instances it appeared that money had been paid to the credit of the bankers' (Roscoe & Co.'s) account, when it had been directed to be paid to the credit of the plaintiffs', or one of their partners. During the whole time that defendants were the agents of the plaintiffs, Roscoe & Co. were their bankers at Liverpool, and defendants paid the proceeds of the sales which they made for the plaintiffs into the house of Jones, Loyd & Co., in the same manner in which they had been accustomed to pay at Esduile's; that is to say to the account of Roscoe & Co. at Jones, Loyd & Co. On the 25th of January, Roscoe's house suspended payments. At that time the money was in the hands of Jones, Loyd & Co. to their credit. They apprised Roscoe's house of the payment, and received for answer that the money was to be struck out of their credit, as they had received plaintiffs' *206] order not to place it to their account. *Upon plaintiffs' applying for the money to Jones, Loyd & Co., they refused to pay it, alleging that they had received it to the credit of Roscoe & Co., with whom they had an unsettled account, and they must hold it for the benefit of all parties.

Raine, for the plaintiffs, contended, that defendants had acted contrary to the orders they had received, and were, therefore, bound to refund. It was their duty, either to have rejected the order to pay altogether, or to have executed it according to the specific directions which were sent.

Scarlett, contra.-There was an express direction to pay the money into some account, which must mean an existing account. Now the plaintiffs had no account with Jones Loyd, & Co., but through the house of Roscoe & Co.

LE BLANC, Justice.-If the plaintiff's intended to have an account opened with the London bankers, they ought to have given specific directions; they should have spoken in language plain and intelligible, which could not have misled. As they have not given any such specific directions, the defendants were justified in paying the money as they had been in the habit of doing.

Upon his lordship expressing this opinion, the plaintiffs' counsel chose to be nonsuited.

*Raine and Littledale for plaintiffs.

Scarlett, Richardson and F. Pollock, for defendants.

[*207

DICAS v. HIDES.

An innkeeper who has a license to let post horses, is not bound by the common law to furnish them to a traveller, though he have a chaise and horses at liberty at the time of the application, and though a reasonable price be tendered to him for the hire.

THE declaration stated that the defendant was an innkeeper, and licensed to let post horses; that on the 22d of December, 1815, plaintiff was received into his house as a guest and traveller; that he requested the defendant to let him to hire a post chaise and horses to convey him on his journey: it then stated that defendant at the time had post chaises and horses unemployed. The declaration likewise averred the tender of a reasonable sum for the hire of the chaise, &c.; but that the defendant refused to let him have one. Plea: Not guilty.

The defendant kept an inn at Four Lane Ends, at Hulton, in Lancashire. Upon the sign over his door was written "licensed to let post horses." Notice had been given him to produce his license. Plaintiff was on his road from Wigan to Manchester, and stopped at defendant's inn to change *horses, and to proceed on his journey. It was stated by the plaintiff's counsel, [*208

that the defendant at the time had post chaises and horses at liberty in his stables; and that he offered to convey the plaintiff on his journey with four horses; but plaintiff would only consent to take two, which were refused.

Scarlett, for the plaintiff, contended, that when an innkeeper takes out a license to let post horses, he enters into a contract with the public to let them out for the accommodation of passengers. He has no right to select his customers; to say, he will serve one man and not another. He cannot evade this duty by demanding exorbitant prices. If he has the convenience, he ought to furnish it when a reasonable price is tendered. The plaintiff tendered the money, and no private pique ought to induce an innkeeper to withhold the accommodation.

Raine, for the defendant, contended, that this was an action of first impression; that it could not be supported in law; but that he was ready to meet it on the merits.

LE BLANC, Justice. The declaration does not state any custom of the realm, but merely a duty. I am of opinion that there is no legal obligation on the defendant to let post chaises and horses, notwithstanding he has obtained a liet for so doing. The action, therefore, is not maintainable. I will, however, save the point.

*The defendant's counsel, to prevent coming again, requested that the case might go to the jury on the merits. Accordingly they called

[*209