holds out a protection to an officer. The commis- 1806. sioners who appoint the tax-collector cannot deprive The Krye: him of the henefit of the appointment, by omitting versus .any thing which may be necessary to make their ap- and Anotlier. pointment valid, when they themselves take the bene- . fit of his acting.”


" may be necentment, by omilave The kn



RUSHFORTH and Another, Assignees of RushroRTH

against Hadfield and Others.--8th Feb. Semble. The courts lean very strongly ugainst the establish- Carrier. Liene. ment of a lien for a general balance by carriers, as a usage Usage of

Trade. of trade; and where many witnesses were called from distant parts of the country to prove it, and there was no evidence on the other side, and the jury found against the general lien; the verdict was held to be not against evidence; for it did not clearly fix the party with the knowledge of such usage. THIS was an action of trover brought by the assig. RustFORTH nees of the bankrupt to recover the value of a par

w and Another cel of goods sent by the bankrupt from bis warehouse ADFIELD at London, to his warehouse at Halifax in Yorkshire, by the waggon of the defendants, and which they had detained for their general balance, for money due for the carrying of goods. The cause had been tried before, and there was a verdict for the defendants which was set aside, and a new trial granted, upon the ground of a misdirection by the learned judge. * At the second trial at the last assizes for York, the plaintiff's gave evidance of the property, and the defendants entered into evidence of a general usage by carriers to detain goods for a general balance; and several carriers froin different parts of the country were called to prove

and Others.

* Vide ? Smith's Reporis, 63 1.

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1806. such practice. The defendants had detained goods

of a person in 1799 for a general balance, on which and Another 'an action was brought, but it was decided upon ano

ther point; and also in 1800, they had detained goods and Others, upon a general 'insolvency of one of their employers,

who paid the money. The learned judge left the 'whole case to the jury, to decide whether the usage proved was so general as to warrant the conclusion, that the bankrupt knew it and contracted with the defendants upon the terms of stopping for a general balance. If they were of that opinion, they were to find for the defendants; if not, the general rule of law was to prevail, that a carrier had not a lien for a general balance.

At the trial it was much argued by the counsel for the plaintiffs, that the evidence of carrriers from distant places and of the usage of their trade could not apply, to affect the plaintiff's or the bankrupt with including a similar usage in the contract with the defendants, for it could not be within his, the bankrupt's, knowledge.

A rule having been obtained, to shew cause why there should not be a new trial, on the ground that the verdict for the plaintiff's was against evidence,

Pars and Woon, for the defendants, contended that the evidence of the usage of the trade was very complete, and extended back for 30 years, and was all on one side, for the plaintiff's called no witnesses and produced no evidence to shew a contrary usage.

COCKELL, Serj. contrà, relied upon the finding of the jury.*

* It is not usual to report cases which turn merely upon the balance of the evidence; but in this case the observations of the court illustrate some very general principles.


. versus HADZILIR

Lord ELLENBOROUGH, C. J. “I cannot say, that 1806. there has been a general acquiescence in the usage - set up, for so years. There has been a stoppage in a aud Anothei

particular instance in 1775, and one also in 1786 ; but i all the rest are after the year 1799, and after and Otherde the case of Aspinal v. Pickford.* The question is here merely what is the contract of the parties; and as the parties are silent, that contract will be according to the particular dealings with the individuals themselves, or the general dealings of other persons in the same business. In most of the instances of stoppage, there is something of an inequality between the parties, and a composition rather than a regular usage; for if the consignor of the goods is a bankrupt, and the consignee is solvent, the consignee will be very glad to pay a balance for carriage of goods, if the particular parcel is of large value. This therefore is not like the evidence which generally occurs of usages of trade, where all the parties are in circumstances wholly indifferent and act independently. Here there are not any instances of stoppage for a general lien before the year 1775, It is true, that, if it applied to the parties generally and fairly, and indifferently, that might be time enough, As between the particular parties, the carriers in this case, they are confined to much later times, and most of them are under particular circumstances; and many of the instances being with carriers at distant places, it was a fair question to put to the jury, whether the parties here knew of them, or, knowing of them, did pr did not incorporate their usage into the contract, I think the subject of liens is one which ought to be regarded with great jealousy. Every tradesman is contending for a general lien, and farriers may as well set up a general lien as carriers; and then, if a horse is sent to be shod the

* Pos. and Pull, 41, (»), in which case a jury found for the usage.




horse will be detained because the groom has pot

sufficient in his pocket to pay bis master's general baRUSH FORTE

lance. In this case, and all similar ones, there can and Another

be no inconvenience to the parties ; for, if they want HADFIELD

to have a general lien, they may have it by making a and Others.

particular agreement with their customers; but, in this case the jury have done right in saying that this general evidence does not establish the lien by the usage of trade."

Grose, J, « The direction of the learned judge in this case was right; there must be a fair and reasonable presumption, froin the evidence, that the plaintiff's knew they were dealing subject to this usage of trade; otherwise, all juries in every part of the kingdom must find the same way. For such evidence, of the usage of carriers at distant parts, might easily be produced, and the law of liens with respect to common carriers, would be wholly changed by indirect means.”

LAWRENCE, J. « There was evidence left to the jury for them to have found the other way ; and as it is a dealing with common carriers, we need not be very solicitous about the establishing the lien; for the labour done in respect of each parcel gives them a lien for the particular carriage, and they may say to their employers that they will not carry any other parcels or deliver out any particular parcel, unless, they will permit them to have a lien for a general balance upon the next parcel. I am not for permitting tradesmen of all descriptions to alter the law of the land by proving all sorts of customs, which are to alter the common law. We ought to look for the law in our law books, and not to say in such a case it was found a custom of the trade, and in such a case it was not found a custom of the trade. It does not seem to me, that the convenience of the carriers' trade requires it, and I shall not be at all sorry, if it is


RUSIIFORTK and Another

versus HappieLD and Others.

generally understood, that they are not entitled to it.”

Le BLANC, J. “ This is a case in which the jury ought to require very strong evidence in sur port of the lien ; and there is not much weight in the argument that the evidence was all on one side, for the general right was on the other. Whatever the weight of that evidence was, it might have been fortified by much stronger evidence in the opinion of the jury, to have fixed the plaintiff's with the knowledge of such a usage of trade."



LUŃ DIB'ngainst · ROBERTSON.--10th Feb. Where the indorser of a bill of exchange, upon being called upon Bill of Exfor payment by a subsequent indorsee, on failure of the drawee, change. Evin

dence. Proof of *** said that he had no notice, but it was a just debl, and he would Notice of non

pay it ; and offered a bill on London át two months ; held that this payment. promise was a sufficient admission of the due presentment, and a waiver of the want of notice, and not a conditional promise, upon which it was necessary to declare specially THIS was an action upon a 'bill of exchange, LONDIE .. which had come to the defendant by indorseinent, a

", ROBERTSON. and was after wards indorsed by him to the plaintiff. At the trial at the last assizes at Newcastle, before CHAMBRE, J. the plaintiff proved the indorsement, and also, that some time after the bill became due the defendant upon being asked for the money, said, if the witness would callinaday or two and bring the account* he would pay him; and when the witness called again, he offered to give a billon Loudon fortwo months; but he said also that he had not regular notice, but it was a just debt, and he would payit. The declaration contained the usual

* The account meant, was an account of the expences attending the return of the bill, and of a letter written to the defendant and an affidavit of debt made.

NO, XXX. N. S.


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