in former times the grand and traverse juries were returned by different persons. There could be no challenge to the array, for that can only be on the ground of unindifferency in the returning officer. Such is the consequence of the sheriff being judge in re-disseisin. Fitz. Nat. Brev. 188, n. That the bailiff is the proper officer also appears from the prior of Montague's case, 7 H. 6. 12 b, recognised in Rolle's Abr. 219, Y. pl. 2, and Brook's Abr., Leet, 14, where the charge against the defendant (a bailiff) was, not that by custom he was bound to return the panel, but that he was the proper common-law officer to perform that duty, and had neglected it; and in Hawk. P. C., B. 2, c. 10, s. 15, 7th edit., it is said, that the sheriff may fine the bailiff for refusing to make a panel, which would be absurd, if the bailiff were not the proper person to execute that duty. The only instances in which power is given to a judge to interfere with the nomination of a jury, are by 3 H. 8, c. 12, which enables him to re-form a panel in open court, and 1 Eliz., c. 17, s. 10, which gives power to summon a second jury to proceed instantly in case of improper conduct in the first. In re-disseisin, which has been mentioned, the sheriff and coroner are judges, not the sheriff alone. Besides, the sheriff is a public officer responsible, to the crown; whereas the steward is the creature of the lord,

*who is entitled to all fines and amercements. In Wood v. Lovatt, 6 T.

*59] R. 511, it was decided, that a custom for the court-leet to amerce for a private inquiry done to the lord was bad, for that would make him judge in his own case. Here, the steward presides in the place of the lord; and if he could select the jury who are to make presentments and impose amercements, the lord, being entitled to them, would virtually be judge in his own case. A custom producing that effect is therefore unreasonable and void.

ABBOTT, C. J. I am of opinion that this rule must be discharged. There is not any ground for a new trial. Upon the evidence given, uncontradicted, and unexplained, I think the learned judge did right in telling the jury that it was cogent evidence, upon which they might find the issue in the affirmative. If his expression had gone even beyond that, and had recommended them to find such a verdict, I should have thought that the recommendation was fit and proper. A regular usage for twenty years, not explained or contradicted, is that upon which many private and public rights are held, there being nothing in the usage to contravene the public policy. Taking, therefore, the issue to be properly found, we must consider that by the immemorial custom of this court-leet the steward has been in the habit of pointing out to the bailiff the persons who are to be summoned on the jury. If that custom be against any known rule or principle of law, it cannot stand, however great its antiquity may be. But I am of opinion that it is not; and I adopt in a great degree what has *60] been said respecting the ancient *constitution and practice of the tourn and leet. All resiants were bound to attend, and many did attend; and not till they were assembled was any jury selected. Then the sheriff in the one case, and the steward in the other, named to his officer the persons who were to be empanelled, and to serve on the jury. If it were the ancient practice to select a jury in that mode without summons, there does not appear to be any sound reason why certain persons should not be summoned to serve as jurors. Various acts of parliament have been referred to, as showing somehing inconsistent with this. The first of them is 11 H. 4, c. 9. By that it appears that a practice had crept in for other persons than the sheriff or bailiff of a franchise to nominate to the judges those who should serve on the grand juries, which was found very mischievous. It was therefore provided by that act, that none should serve but those who were returned to the judges by the sheriff or bailiff, without the nomination of any other person. Then came the 1 R. 3, c. 4, whereby it was enacted in sec. I, " that if the bailiff should return or empanel to serve as jurors in the tourn any persons not having the qualification there mentioned, he should forfeit 408.; and by sec. 2 a similar fine is imposed

on the sheriff. Now, put this case: The bailiff empanels persons not duly qualified; is the sheriff to allow them to serve, and so incur the fine, or to leave the business of the tourn undone; or, is he to select others who are duly qualified? No doubt the latter would be the proper course. Allusion has also been made to the 3 H. 8, c. 12. That statute gives power to justices of jail delivery to amend a panel precisely in the manner in which I think the sheriff ought to do in his tourn, under the circumstances before supposed. *The case of [*61 Crane v. Holland, which has been cited, also shows that the same person may, by custom, be the judge of a court for one purpose, and the officer for another. But a passage in Hawk. P. C. b. 2, c. 10, s. 15 has been relied upon as showing that the bailiff is to select the jury, because the sheriff may fine him for not making a panel. But there is nothing inconsistent in saying that it is the bailiff's duty to make the panel, although the sheriff decides upon the persons to be named in it. There is also another answer to the argument, viz., that the passage may refer to the traverse jury, and not the grand inquest. In other cases, as in writs of inquiry and re-disseisin, the sheriff nominates the jury, and presides as judge: can we then say that there is any thing in the custom now under consideration, which is at variance with any known rule or principle of law? The usual mode may be different, but that is the whole argument; and to infer thence that no other mode can be legal, is not consistent either with good logic, or good law. Upon the whole, therefore, I am of opinion that there is nothing unreasonable or illegal in this custom, which has been established by the verdict, and that the judgment ought not to be entered for the crown.

HOLROYD, J.(a) I am of opinion that the observations of the learned judge, and the verdict of the jury, were well warranted by the evidence in the cause. The remaining question is, whether the custom found be contrary to law, and therefore void. The common and ordinary course is for the bailiff to nominate the jury; and, in the absence of any custom to the contrary, that would be held to be a part of his duty. But here it is found that a custom has [*62 immemorially existed for the steward, and not the bailiff, to nominate the jury. It appears to me that the authorities which have been cited, and the usage which has prevailed on writs of inquiry, and in some other instances, establish clearly that the custom is not inconsistent with any principle of law. The statute 3 H. 8, c. 12, giving judges the power to amend panels, shows that the legislature did not think it against the principles of law, that judges should interfere with the nomination of the persons who were to serve. Unless then some act of parliament can be found depriving the steward of such a privilege as that now claimed, it is plain that he may enjoy it. The 11 H. 4, c. 9, is the only one that at all bears upon the question; but that was intended to remedy the abuse which had been introduced of nominations by persons without any authority, and was not meant to apply to such cases as this. The latter part of it runs thus: "And that from henceforth no indictment be made by any such persons but by inquest of the king's lawful liege people, in the manner as was used in the time of his noble progenitors, returned by the sheriffs or bailiff's of franchises, without any denomination to the sheriffs or bailiffs of franchises before made by any person of the names which by them should be empannelled; except it be by the officer of the said sheriffs or bailiffs of franchises, sworn and known to make the same, and other officer to whom it pertaineth to make the same according to the law of England." In this case, by the custom which existed before the time of legal memory, and therefore by the law of England, it pertained to the steward to nominate the jury. The *case of Crane v. Holland is, I think, decisive of the principle; for it is there held that one may be judge and officer, diversis respectibus. For [*63 these reasons, I am of opinion that the rule must be discharged. BEST, J. We are not called upon to lay down any general rule in this case,

(a) Bayley, J., had left the court.

but merely to say whether the special immemorial custom found by the jury be or be not consistent with the principles of law. No direct authority has been cited to show that the custom is bad. The form given by SCROGGS, C. J., by which it appears that the bailiff usually selects the jury, may prove what the general practice is, but does not impugn the custom. The only other case cited at the bar, Crane v. Holland, is in support of the custom. It was there held, that in a corporation the bailiffs might by custom be both judges and ministerial officers of the court. An attempt was made to show that this case differed from that and the cases where the sheriff presides as judge, because here the lord is entitled to the fines and amercements; but that argument, if valid, would also show that the sheriff cannot properly select the jury in such cases, because he is appointed by the crown, to which the fines imposed in his court belong. So also in corporations, the fines for the most part belong to the body corporate, and yet the mayor and the corporation sit as judges in the corporate courts and impose fines. Of the statutes which have been referred to, one only appears to touch the question, and that furnishes an answer to this application. It is true that the 11 H. 4, c. 9, says, that jurors in indictments shall be returned by the sheriff or bailiffs, because these are the officers whose duty it is in general to return them; but this statute was not intended to prevent any other *64] properly authorized officer from returning jurors, but only such as were not officers of the court from nominating persons to the court to serve as jurors. The 1 R. 3, c. 4, only provides for the return of jurors who were properly qualified, and makes no regulation as to the returning officer It speaks of bailiffs and other officers. But the 1 Eliz. c. 17, which gives the steward of a leet a power to nominate a second jury in case of misconduct in the first, warrants us in saying that a custom for the steward to nominate the first is not unreasonable or illegal. The legislature would not have directed the steward to nominate the second jury if it had considered him as so dependent on the lord who is to receive the fines imposed in the court, as not fit to be trusted to return the jury who are to impose them. This, therefore, is a complete answer to the only objection that appears to me to be even specious. If the steward be a proper person to name the second jury, he cannot be so unfit to return the first, as to make an immemorial custom, that he is to return the jury at the leet, bad in point of law. Rule discharged.

*G. SIMSON, R. STEPHENSON, and THOMAS FREEN v. BEN*65] JAMIN INGHAM, the Heir of one JOSHUA INGHAM deceased, and the said. BENJAMIN INGHAM, JOSHUA INGHAM, JAMES TAYLOR INGHAM, and Others, Devisees of the said JOSHUA INGHAM deceased.

A bond was given by country bankers to the several persons constituting the firm of a London banking-house, conditioned for remitting money to provide for bills, and for the repayment of such sums as the London bankers might advance on account of persons constituting the firm of the country banking-house, or any of them, associated or not with other persons. One of the partners in the country bank died, a considerable balance being then due to the London bankers. It was the course of business between the two houses for the London bankers to send in to the country bankers monthly accounts of receipts and payments. In the month following the death of the deceased partner, the London bankers received sums in payment more than sufficient to discharge the balance then due; but during the same time they advanced money on account of the country bankers to an equal amount. In the first instance the London bankers entered in their books all receipts and payments made after the death of the deceased partner to the account of the old firm, but they did not transmit any account to the country bankers until two months after the death of the deceased partner, and then they transmitted two distinct accounts; one the account of the old firm, made up to the day of the death of the partner; and another, a new account, containing all payments and receip's subsequent to that time: Held, that the entries in the books of the London bankers did not amount to a complete appropriation by them of the several payments to the old account, such appropriation not being complete until it was communicated to the party to be affected by it; and therefore that the London bankers, notwithstanding those entries, were entitled to apply the payments received subsequently to the death of the deceased partner to the debt of the new firm.

D

THIS was an action against the defendants, as heirs and devises of Benjamin Ingham deceased, on a bond, bearing date the 19th October, 1808; whereby Benjamin and Joshua Ingham, since deceased, therein described as late of Huddersfield, bankers, became bound in the penal sum of 20,000l., to one P. C. Bruce, and the three plaintiffs, Simson, Stephenson, and Freen, therein described as bankers in London, carrying on business under the firm of Were Bruce, Simson, and Co. The condition of the bond was, that B. and J. Ingham should well and truly remit and pay to the said P. C. Bruce, Simson, Stephenson, and Freen, or any of them, associated or not with any other person or persons in the same or any firm, the amount of all such sums

as B. and J. Ingham, or either of them, associated with any other per- [*66

son or persons or not, should draw on the said Bruce, Simson, Stephenson, and Freen, or any of them, associated or not as aforesaid, or make payable at their house, as the said bills or notes should become respectively due. There then followed other clauses, usual in such bonds, for payment of all moneys paid, laid out, and expended by the London bankers, on account of the country bankers, or due from the latter to the former, upon any account whatever.

The defendants pleaded separately, and admitted the execution of the bond by Benjamin Ingham, and set out the estates which they severally took under the obligor, which the plaintiffs confessed to be accurately set out. The plaintiffs suggested breaches of the condition of the bond, and the writ of inquiry came on to be executed before the lord chief justice, at the London sittings after Easter term, 1822, when the amount of the damages was referred to Mr. Gaselee; who, by his award reciting the bond and the order of reference, assessed them at 13,8457., but stated the following facts for the opinion of the Court.

The obligors are bankers at Huddersfield; the obligees their London correspondents. At the date of the bond, and from thence to the 1st January, 1809, the Huddersfield bank was carried on by the obligors alone. On that day John Ikin was taken into the firm, and it so continued until the 14th September, 1811, when Benjamin Ingham died. The two survivors carried on the Huddersfield bank till January, 1814, when Joshua Ingham died. From the time Ikin was taken into the partnership until and at the death of Joshua, the firm was called Messrs. Benjamin and Joshua Ingham and Co. The house of Bruce, Simson, and Co. was carried on by the four obligees till the [*67 31st December, 1808, when Stephenson retired. The other three continued by themselves till the 1st January, 1811, when they took in Harry Mackenzie; and it was continued by Bruce, Simson, Freen, and Mackenzie, till after the death of Joshua Ingham. During the latter period this firm was sometimes called Bruce, Simson, and Co., and sometimes Bruce, Simson, Freen, and Co. The house of Bruce and Co. were in the habit of sending to the Huddersfield bank monthly statements of their accounts. Such statements were generally sent within the first ten or twelve days of the succeeding month; and were, on their arrival at Huddersfield, examined, and the sums ticked by a clerk of that bank, and also looked over by Ikin, to whom the Inghams chiefly left the management of the business. The last statement, sent previously to the death of Benjamin Ingham, was for the month of August, 1811, and was sent on the 11th of September, in that year. The balance of that account was 23,6717. 38. 2d. in favour of Bruce and Co. On the 16th September, when the news of Benjamin Ingham's death reached Bruce and Co., the balance in their favour was 22,7231. 58. 3d. On the 14th, the day on which Benjamin Ingham died, it was something less; but on the 16th had increased to the above sum by the addition of some bills for which the Inghams had had credit, and which were returned on that day dishonoured. No alteration in the account was made in the books of Bruce and Co. immediately on the death of Benjamin Ingham; but, during the residue of the month of September and a part of the month of Octo

ber, the *remittances made by the Huddersfield bank, and the payments *68] made by Bruce and Co. on their account, were entered in continuation of the former account. The remittances and payments during that time were nearly equal, and both far exceeded the balance due at the death of Benjamin Ingham; and if by having thus continued the account Bruce and Co. are to be considered as having made an election from which they are not at liberty to depart, and bound to apply the earliest remittances in discharge of the former balance, the damages are to be only nominal. Before, however, any account was transmitted to the Huddersfield bank subsequent to that for August, Bruce and Co., in consequence of a communication with their solicitor, opened a new account in their books, and in that inserted all the remittances and payments made subsequent to the death of Benjamin Ingham, striking them out of the former account, and retaining in the old account only the bills for which, as before stated, credit had been given, but which had been returned dishonoured; and on the 13th November, 1811, they transmitted to the Huddersfield bank statements of two accounts, each of which, instead of comprising, as formerly, the transactions of a single month, contained those of two, viz., September and October, no account of September separately having been sent.

The first of these accounts was thus entitled: "Debtors Messrs. B. and J. Ingham and Co., (old account,) in account with Bruce, Simson, and Co., creditors." The first item on the debit side of this account was the former balance of 23,671/. 3s. 2d., and it contained the remittances and payments in September up to the death of Benjamin, and the bills returned on the 16th, making the above balance of 22,7231. 5s. 3d. Under this was a similar list of

*69] bills returned dishonoured in October, which increased the balance to

23,1187. 13s. The second account was in the same form, but entitled "new account," and the word Freen was introduced after Simson. This account began on the 16th September, without any balance brought forward, and contained the remittances and payments made during that month, subsequent to the death of Benjamin, and also those made in the month of October. The balance of that account, at the end of September, was 965/. 15s. 8d. in favour of the Huddersfield bank; but at the end of October was 2421. 12s. 7d. in favour of Bruce and Co. These accounts were examined and ticked in the usual manner, by the clerk of the Huddersfield bank. From this time the old and new accounts were kept separate in the books of Bruce and Co.; the addition to the former being little, if any thing, more than the interest at the end of every six months, except in the month of July, 1813, when a transfer was made from the new account to the old of 15,5077. 18s. 10d., which reduced the balance of the old to 10,000l. Statements of these two accounts continued to be from time to time transmitted by Bruce and Co. to the Huddersfield bank, and examined and ticked in the usual manner, except that the statement of the old account was only sent at the end of every six months. The Huddersfield bank do not appear to have ever objected to the accounts being kept separately by Bruce and Co., although in their own books they only kept on account. The arbitrator being of opinion that, under these circumstances, the balance due on the death of Benjamin Ingham was not wholly discharged, assessed the damages at the sum above awarded; but if the Court should be of opinion that *the *70] damages ought only to be nominal, then he directed that they should be reduced to the sum of one shilling. Upon the motion for a rule to reduce the damages to one shilling, in last Michaelmas term, the Court ordered that the award should be turned into a special case.

Campbell, for the plaintiffs. The remittances after Benjamin Ingham's death having been made generally, the plaintiffs had a right to appropriate them to the debts contracted by the new firm. In Clayton's case, 1 Merivale, 572; Bodenham v. Purchas, 2 B. & A. 39, and Brooke v. Enderby, 2 B. & B. 70; the expressions of the judges have reference to the fact of there having been one