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holds out a protection to an officer. The commis- 1806. Eioners who appoint the tax-collector eaunot deprive The Knm *' him of the benefit of' the appointment, by omitting

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any thing whicli may be necessary to make their ap- md Another, pointment valid, when they themselves take the benefit of bis acting."

Rule Absolute.

Rushforth and Another, Assignees of Rushforth against Hadfield and Others.—8lh Feb.

Semble. The courts lean very strongly against the establish- Carrier. Lien*. ■mcnt of a lien for a general balance by carriers, as a usage Uugc of of trade; and where many witnesses were called from distant parts of the country to prove it, and there was no evidence 011 the other .side, and the jury found against the general lien; the veidict was held to be not against evidence; fur it did not clearly fix the party with the knowledge 0)' such usage.

'T'HISwasan action of trover brought by the assig- r.< .m-tckth nees of the bankrupt to recover the value of a par- *ndr*"^ther eel of goods sent by the bankrupt from his warehouse 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 cau^e 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 \ork, the plaintiffs gave evidence of the properly, and the defendants entered into evidence of a general usage by carriers to detain goods for a general balance; and several carriers from different pans of the country were called to prove

and Utiler5.

* Vide 2 Smith's Reports, 63 I.

i8os. guch practice. The drfendants had detained goods Ru«hfOrtr °f » Person in 1799 for a general balance, on which sod Another an action was brought, bul it was decided upon anoH*ofirl» tner point; and also in 1800, they had detained goods »nd others, upon a general insolvency of one of their employers, who paid the money. The learned judge left tl»e '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 fora 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 plaintiff's, 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 whv there should not be a new trial, on the ground that the verdict for the plaintij's was against evidence,

Part and Woon, for the defendants, contended that the evidence of the usage of the trade was verv complete, and extended back for "0 years, and was ;ill on one side, for the plaintiffs called no witnesses and produced no evidence to shew a contrary usage.

Cockf.ll, Serj. contra, relied upon the finding of the jury.*

* It is not usual to report crises which turn merely upon t!ic balance of the evidence; but in this case the observations of the cuurt illustrate some very general principles.

Lord Ellen Borough, C. J. "I cannot say, that i80«. there has been a general acquiescence in the usage Rviuroi

all the rest are after the year 1799, and after »»dOthen. the case of jfspinal 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 hefore the year 1775, It is true, that, if it applied to the parlies 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 thejury, 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

* Dos. and Pull. 11, Qi), in which case a jury I'ounii for the.

[graphic]

Usage.

lg06 horse will be detained because the groom has not

sufficient in his pocket to pay his master's general ba

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

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

^dOthe" to nave a Sener!ll We°j tney maJ Dave lt by making a particular agreement with theii 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 iu this case was right; there must be a fair and reasonable presumption, from the evidence, that the plaintiffs 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 pails, 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 fa/* 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. 1 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 bouks, 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 trjide. 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 ia generally understood, that they are not entitled to iao<>,

it""

**• IU'SliroRTH

Le Blanc, J. "This is a case in which, ike jury ""t;*"u01tl,er ought to require very strong evidence in support of the Hadfield lien; and there is not much weight in t'.je argument and 0tivex%' 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 hare fixed the plaintiffs with the knowledge of such a usage of trade."

HetE DISCHARGED.

Lundie against Robertson.—10th Feb.

Where the indtrserof a bill of exchange, upon being called upon Bill of Exfor payment by a subsequent indorsee, on failure of the drawee, change. K»isnid that he had no notice, but it teas a just debt, and he would N,"1c'c of°uonpayit; and offered a bill on London at two months; held that this payment. promise was a sufficient admission of the due presentment, and a waiver of thewant of notice, and not a conditional promise, upon which it was necessary to declare specially.

*J,H1S was an action upon a bill of exchange, Hindis

which had come to the tlcf 'tndant by indorsement, „ v"nt end 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, aud also, that some time after the bill became due the defendant upon beipgasLed for the money, said, if the witness would call inaday ortwoand bring the account* he would pay him ; and when (be witness called again, he offered to give a bill on London for two months; but he said .also that he had not regular notice, but it was a just debt, and he would pay it. The declaration contained the usual

* The account meant, was an account of the expences attending die return of the hill, anil of a letter written to the defendant and an aflidavit of deht made.

NO. XXX. N. S. G g

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