Smith v Bolton, Esq
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1817 |
| Date | 01 January 1817 |
| Court | Court of Common Pleas |
English Reports Citation: 171 E.R. 213
IN THE COURT OF COMMON PLEAS
[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 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 £434. There was no doubt as to the not and demolishing, which were occasioned by the impressment of a seaman, who had [200} * Though, in respect to written instruments generally, no euntom or usage can be introduced to add anything to the terms of the contract, which the parties (in the full deliberation whieh 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 notorioms. Thus in Wtglesworth 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.-ò" 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...
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