Shepherd, Serjt. had in Easter term obtained a rule nisi to set aside the nonsuit and enter a verdict for 641. for the plaintiff. 1811. JESSOR บ. SOLLY. Lens, Serjt. in this term shewed cause. He contended that although the captain was not compellable to deliver the goods before he saw the bill of lading, yet, as his refusal to deliver them when the plaintiffs were willing to accept them, was only for his own security and accommodation, the delay was the result of his own choice, and he could not charge the defendant with the consequences. At all events he must resort to the consignor for demurrage, and could not recover it against the [ 54 ] consignees. Shepherd and Best, Serjts. in support of the rule, urged that the defendant, having ultimately received the bill of lading, containing the condition for payment of demurrage, and having claimed and received the goods under it, subsequently to the plaintiff's refusal to deliver, could not now contest that contract. The plaintiff had notice of conflicting claims, and had no no tice, until the arrival of the bill of lading, with whom the shipper's order was to be found. He even deserted his duty, in offering to deliver the goods upon an indemnity. It was part of the contract, to pay him demurrage for the ship, until he could safely and legally, and with a sufficient discharge to himself, deliver the cargo. In the mode in which the state of Europe requires.commerce now to be conducted, the master of a neutral may perhaps never see his consignors again; it is therefore a necessary practice which prevails, that he should stipulate for payment by the consignees of demurrage as well as freight, and that the consignor should transmit the bills of lading by another vessel. MANSFIELD, C. J. This is quite a new case, arising from the new state of trade, and there is great weight in the observation made for the plaintiff, that many of these ships coming from a foreign country, to which they may never go again, put into their bill of lading a condition, which enables them to look to the consignee for demurrage, as well as for freight. My brothers are very clearly of opinion, that if the consignee will take the goods, he adopts the contract. HEATH, J. It is clear the plaintiff is entitled to demurrage, either from the consignor or consignee. Demurrage is only an extended freight, and the consignee by adopting this bill of Jading, makes himself liable to demurrage as well as to freight. CHAMBRE, [ 55 ] 1811 JESSON ข. SOLLY. CHAMBRE, J. It would be monstrous if the consignee, accepting the contract with knowledge of the terms, should not be bound by it, and could send the captain back to the consignor for demurrage. Therefore, the Rule must be made Absolute. July 1. The costs of bringing over a necessary witness from the continent to this country are to be al lowed in future. But not the costs of his re. turn. [ 56 ] THIS COTTON V. WITT. HIS was an action on a policy of assurance which had stood for trial a great length of time, having been postponed upon repeated applications made by the defendant on account of the absence from this country of one Joachim Hinds, a necessary witness in his behalf. The defendant at length brought him over, and upon his arrival, the cause was tried, and the witness was examined, and a verdict was thereupon found for the defendant; and upon the taxation of costs, the defendant claimed 647. for the expenses of bringing the witness from Denmark to this country; but the prothonotary refused to allow the costs of the voyage from Denmark, under the authority of Kensington v. Inglis, and Hagedorn v. Allnutt, ante 3, 379. A rule nisi having been obtained by Best, Serjt. on a former day for reviewing the taxation, and that the prothonotary might be directed to allow the costs of the witness's whole voyage hither and his return, upon the ground that such was the practice in the Court of King's Bench, and that it was the most reasonable rule, Shepherd, Serjt. shewed cause, and contended that the practice of this court had been to allow the costs only from the time the witness came within reach of the subpoena, relying as before on Kensington v. Inglis. Best, Serjt. in support of the rule, contended, that that decision was founded on a mistake of the Court, in supposing that it was the practice of B. R. to disallow such costs, whereas it turns out upon inquiry to be their constant practice to allow them, and it is right that the practice in both courts should correspond in cases which are similar. MANSFIELD, C. J. I think this case as proper to begin the practice as any. The defendant had paid into court as much as the other underwriters upon the policy, and their payments had been accepted by the plaintiff; but in this case he would neither accept the payment which had been offered him, nor take the money money out of court, nor consent to the examination of the witness on interrogatories. CHAMBRE, J. This is not a variation from a former mode of practice (a); and the establishment of the rule is essential to justice, which applies equally to the allowance of costs in a court of law, as it does to any other matter where right or title is in question. The Court made so much of the rule absolute as applied to the prothonotary's allowing the costs of the witness's voyage from Denmark, but not of his return. (a) See the old practice mentioned in Hagedorn v. Allnutt, ante 3, 380. 1811. COTTON V. WITT. READSHAW v. BALDERS. July 1. [57] an annuity deed, made prior to the 65. s. 115., [which stat. stat. 46 G. 3. c. has a retrospec tive operation,] grantor of the whereby the annuity covenanted to pay the same on the days and deduction THE plaintiff declared in covenant for the arrears of a certain annuity of 1501. granted to him by one Augustus Beevor A covenant in and the defendant, for their joint lives, and the life of the survivor, by indenture bearing date 26 Sept. 1805. Habendum, during their joint lives and the life of the survivor to be paid and payable by equal quarterly payments (setting out the days of payment) without any deduction or abatement whatsoever out of the same or any part thereof for or in respect of the then present or any then future tax upon property, or the profits thereof, or any other taxes, charges, rates, assessments, or other impositions whatsoever, then already taxed, charged, rated, assessed, times, &c. or imposed, or thereafter to be taxed, charged, rated, assessed, without any or imposed upon the rectories, vicarage, and premises, or upon whatever out of the manor, messuages, farms, lands, tenements, advowsons, and the same, or hereditaments thereby charged with the payment of the annuity, of, for or in reor on the said annuity, or on the said A. B. and the defendant then present or in respect thereof, by authority of parliament, or otherwise any then future howsoever. The declaration then set out a covenant by the void in respect of its obligation grantors to pay the annuity on the days and times, &c. without of on the grantor any deduction or abatement whatsoever out of the same, or any not to deduct part thereof, for or in respect of the then present or any then tax, but not in future tax upon property, or the profits thereof, or any other taxes, charges, rates, assessments, or other impositions whatsoever; and averred, that on the 26th Sept. last 1127. 10s. of the said annuity for three quarters of a year, became due. The defendant pleaded a former judgment recovered upon the same cause any part there spect of the property-tax, is the property respect of the annuity, subject to such de payment of the duction. cause of action, and the plaintiff in his replication traversed the identity of the cause, upon which issue was joined; and at the trial thereof at the sittings in last Easter term, a verdict was found for the plaintiff for the amount of the three quarters arrears after deducting the property tax. On a subsequent day in that term, Onslow, Serjt. obtained a rule nisi for arresting the judgment, on the ground that the covenant for the payment of the annuity to the plaintiff without any deduction in respect of the property tax, rendered the whole void by stat. 46 G. s. c. 65. s. 115. which after providing, under penalties, for the allowance of the deduction authorized to be made by that act, further enacts, that all contracts, covenants, and agreements, made or entered into, or to be made or entered into, for payment of any interest, rent, or other annual payment aforesaid, in full, without allowing such deduction as aforesaid, shall be utterly void. Best, Serjt. now shewed cause; and observed that upon the face of this declaration the indenture appeared to bear date in Sept. 1805, and that the statute relied upon in support of the objection did not pass until 1806; he contended therefore that it would be a strained construction of that act, to hold that it had relation back to an antecedent period so as to make void that contract which was originally well framed and obligatory between the parties; and that the true construction, by which the object of the act would be fully attained, was this, that the covenant in question did not vacate the whole contract, but only so much of it was void, as was contrary to the particular enactment. If a different construction were to prevail, great injustice would follow; for then a landlord who before the passing of the act had demised premises to a tenant for a long term of years at a rent clear of all deductions on account of property tax, upon the faith of which demise the tenant had expended large sums of money upon improvements, might avail himself of an ex post facto law to dispossess the tenant of his improved term. The whole deed therefore is not rendered void, but only the covenant, pro tanto; and accordingly, in Gaskell v. King, 11 East, 165., which was a stronger case in favour of the objection, because there the indenture was made subsequent to the act, it was held, that a covenant by the lessee for payment of the property tax, though void by the statute, did not avoid a covenant for payment of the rent, which was entirely distinct. So bere, the covenant for payment of the annuity is distinct and substantive, substantive, and although it is included in the same clause, is not so interwoven with the subsequent stipulation respecting the property tax, as to make the one incapable of taking effect without the other. It is not made a condition upon which the payment of the annuity is to depend, that such payment should be clear of any deduction in respect of property tax, and if a subsequent statute has interposed to make void one part of the clause, it is clear that it may be rejected, and the remainder permitted to take effect. Onslow, Serjt. contrà, relied upon the express words of the statute, which he said were retrospective as well as prospective, and denied that the construction attempted on behalf of the plaintiff would attain the object of the act, which directed the landlord or annuitant to be charged with the payment of the tax, in order to prevent any diminution on account of such tax in the rent or annuity to be agreed upon between the parties, which would be the necessary consequence of making it a charge upon the tenant or grantor of the annuity, and by that means the revenue would suffer diminution. The policy of the law therefore, as well as the express words of it, rendered the whole agreement, and not such parts only of the agreement as were contrary to it, utterly void. But supposing, as it has been admitted, that the statute affects only that part of the covenant which respects the payment of the property tax, it is impossible in this case to give effect to the remainder for payment of the annuity, because both parts are so blended together as to form one entire covenant which cannot be separated without doing violence to the whole: and therefore the case of Gaskell v. King, which was expressly decided upon this distinction, viz. that a covenant void by this statute will not avoid other independent covenants which are good, does not apply; or if it does, it serves only to shew that if that case had been like this, the decision would have been the other way. The same distinction was taken and acted upon in a later case of Wigg v. Shuttleworth, 13 East, 87. In Crossley v. Arkwright, 2 T. R. 603., and Denn v. Dollman, 5 T. R. 641., it was held, that the want of a memorial of an annuity deed registered according to the directions of 17 G. 3. c. 26. avoided the whole deed, though there were parts of it not connected with the annuity, for the words of the statute made such deeds null and void to all intents and purposes. But the words of this statute are equally strong, 1811. READSHAW บ. BALDERS. [60] |