1816. SENIOR v. Though, in respect to written instruments generally, no custom or usage can be introduced to add any thing to the terms ARMYTAGE. 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 tenants, 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 be imprudence or folly. The lease being by deed does not vary the case. The custom does not alter or contradict the agreement in the lease; it only superadds a right which is consequential to the taking; as a heriot may be due by custom, although not mentioned in the grant or lease." Dougl. 197. 1816. THIS SMITH V. BOLTON, ESQ. the hundred, held, that they are only liable for against the things demo 'lished by the rioters, or de stroyed in the HIS was an action against the hundred on In an action the stat. 1 Geo. I. st. 2. c. 5. brought by 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 himself and his wife, in consequence of the demolition demolition of of the house by a mob of rioters. The landlord not for any had recovered, in the preceding cause, the amount goods stolen or of the damage done to the freehold. The sum premises. 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. lost from the 1816. SMITH v. 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 BOLTON. 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 actually proved was 851. The jury gave the plaintiff 1007. Scarlett and Alderson, for plaintiff. In a case tried at Westminster sittings, after Hilary term, 1816, Lord Ellenborough, Chief Justice, 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 neighbourhood of the house in question, that the rioters were dis persed in various parties, which kept up a communication by signals, 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. For cases upon this act vide Ratcliffe v. Eden, Dougl. 699. Hyde v. Cogan; and Wilmot v. Horton, there cited. Prit chett v. Waldron, 5 T. R. 14. Reid v. Clarke, 7 T. R. 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, 377a. 1816. SMITH v. BOLTON, 1816. LANCASTER LENT ASSISES, 56 GEO. III. 1816. A. and Co. of Liverpool employ R. and Co. as their R. and Co. keep an ac BREED and Others v. GREEN and Another. MONEY had and received. The plaintiffs had employed the defendants as their agents and bankers there: consignees in London, to sell goods, and dispose of the proceeds according to their directions. don with J. and They had at first been directed to pay the proceeds L. But A. and into the banking-house of Esdaile and Co., aftercount with J. wards into the, house of Jones, Loyd, and Co. count in Lon Co. have no ac and L. A. London to pay monies to and Co. direct Plaintiffs had no account of their own with either of their agents in these houses, but Roscoe and Co. were their bankers at Liverpool, who kept an account with Esdaile at the house of and Co., which account they had just transferred to 'their account J. and L. As no account of A. and Co. had Jones, Loyd, and Co. The particular transɛ ction their own with arose out of the sale of some American stock. J. and L. but through the medium of R. and Co. of Li their agents On the 20th of January, 1816, the plaintiffs verpool, and as wrote to the defendants, desiring them to sell the had been in the stock, and to pay the proceeds to Jones, Loyd, and Co., adding "for our account." On the 23d, account of R. the defendants answered that they had accepted the and Co. at the order, and would pay in the proceeds the next day, habit of paying monies of A. and Co. to the house of the London bank ers of R. and Co.; held, that the direction of A. and Co. to their agents to pay to "their account" was sufficiently complied with, by a payment made to the account of R. and Co. as the agents had been in the habit of doing. |