said, that in order to establish such a custom as the one contended for, it was necessary that the proof should be strict, and the custom uniform. The evidence in this case had satisfied neither of the requisitions. It appeared that the custom was sometimes observed, and sometimes departed from — the express assent of the crew sometimes obtained, and sometimes not. In this case, no express assent was set up, and the custom, not being uniform, could not bind the crew without such express assent. He further observed that the custom of permitting the men to be absent on shore, at night, was exceptionable and of immoral tendency, and if it were to be admitted at all, should be admitted only upon very strict proof. Wherefore he decreed that the libel-lant should recover his whole claim, with costs.
At a subsequent day the counsel for the respondent submitted to the court, that as the owners of the vessel lived in Boston, and process in rem issued without any previous notice to them by monition to show cause, whether any costs ought to be allowed; *528and thereupon the court ordered that costs should be taxed for the respondent as if the hearing had been upon a monition to show cause, and that the additional expenses of the arrest be paid by the libellant