1850.

SKINNER

V.

LONDON,

BRIGHTON, AND

SOUTH COAST

RAILWAY CO.

Lord Chief Baron thought that the defendants would be prejudiced by the amendment, and the plaintiff was obliged to withdraw the record. As the order says nothing about Costs, the plaintiff is in the same situation as if he had Withdrawn the record before the jury were sworn, in which case he would have had to pay the costs. But it is contended, that we cannot travel out of the order itself, which appears on the face of it to have been made by consent. Assuming that to be so, and that this is not a transaction in the exercise of the statutory power of the Judge, but an agreement between the parties, what is the construction of that agreement? After the jury are sworn, the defendants and the plaintiff agree that the plaintiff shall be at liberty to withdraw the record, and the agreement is silent as to costs. But res ipsa loquitur. It never could have been intended that the defendants were to be prejudiced by granting the plaintiff an indulgence. Therefore, although there may have been an assent by the defendants to the order, the plaintiff is bound to pay the costs. No doubt there may be cases where it is for the benefit of both parties that the record should be withdrawn; for instance, where neither is in a condition to proceed with the trial. But that was not the case here, for the record was withdrawn entirely for the purpose of enabling the plaintiff to avoid a nonsuit. Therefore, quâcunque viâ, whether the record was withdrawn by order of the Judge or by agreement between the parties, the plaintiff is bound to pay the costs.

ALDERSON, B.-It is not necessary to decide whether a Judge has power to amend in a case like the present, without payment of costs. No Judge does so, because he is supposed to decide on the ground that the one party was wrong and the other right, and that the variance, though not material to the merits of the case, was such as misled the opposite party, and therefore the party who has misled the other ought to pay the costs of putting himself right.

But I doubt whether the Act of Parliament is to be construed otherwise than imperative as to the payment of costs, leaving it to the Judge's consideration, whether he should add to that the withdrawal of the record, or the postponement of the trial to any other sittings, or to some future day in the same sittings. Now, if the Act of Parliament is imperative, this order ought to be construed in accordance with the Act. But, looking to the very words of the order, and treating it as an order made by consent, I agree with my Brother Parke, that it is to be construed as if, the plaintiff having no right after the jury were sworn to withdraw the record, the defendant had consented to its withdrawal. Mr. Watson argued, that, where both parties agree that the record shall be withdrawn, the only effect that can be given to such an agreement is to place the defendant in a different situation from that in which he would have been under the statute. But he had an absolute right to try; and so, when he made the agreement he gave up something, which it cannot be supposed that he would have done except on payment of costs. Therefore, I am of opinion, that, whether the order be construed literally, or as made under the Act of Parliament, the plaintiff is bound to pay the costs.

PLATT, B.-This is a case in which the Judge at the trial thought that the amendment would prejudice the opposite party; so that the case comes within one of the two branches of the enactment, which empowers the Judge, on payment of costs, to order the record to be withdrawn,that is one condition; or, as I read it, upon payment of costs, to postpone the trial, the alternative being given. It seems to me, that this order has not been made in pursuance of the Act of Parliament, for the principal matter which the Judge is empowered to do has not been done. The power which the statute confers is to amend; the rest merely amounts to a condition upon which the amendment

VOL. IV.

MM M

EXCH.

1850.

SKINNER

v.

LONDON, BRIGHTON, AND SOUTH COAST

RAILWAY Co.

1850.

SKINNER

v.

LONDON, BRIGHTON, AND

SOUTH COAST

RAILWAY CO.

is to be made. Here nothing is ordered but the withdrawal of the record, with liberty for the plaintiff to amend; thus making the withdrawal of the record a condition for the liberty to amend. As the defendant has not insisted on his right to go to the jury, but has consented to withdraw the record, the effect of that is to place the plaintiff in the same situation as he was before the jury were sworn; in which case he would have been liable to pay the costs of his abortive attempt to try.

Rule absolute.

June 26.

entitled to take

merchandise for

TOWSE v. HENDERSON and Another.

A shipowner is ASSUMPSIT on a charter-party of affreightment made between the plaintiff, the owner of the ship "Argyra," and the defendant, whereby it was agreed that the vessel should proceed from Singapore to Whampoa, and there load from the merchandise the agents of the affreighters a full and complete cargo of occupies no

freight as ballast on board his chartered

vessel, provided

ballast would

more space than tea. The declaration, which was in the usual form, averred that the ship was ready to load her cargo within the true intent and meaning of the charter-party, of which the defendants had notice.-Breach, that the defendants wholly refused to load any tea whatever on board the said ship.

have done. There is no undertaking on the part of a shipowner that his vessel (if really fit) shall be free from suspicion of unfitness to re

beard.

The defendants pleaded (with other pleas not material ceive a cargo on to the present question), fourthly, that the ship was not ready to load her cargo, modo et formâ; sixthly, that the defendants were ready and willing to load and put on board the ship at Whampoa a full and complete cargo of tea within the time limited for that purpose, according to the true intent and meaning of the charter-party, whereof the master had notice. Yet the defendants in fact say, that the ship, on her arrival at Whampoa, had on board a large quantity of noxious merchandise, to wit, eighty tons

of antimony ore, which the master caused to be shipped and received in and on board of the said ship at Singapore, for conveyance to London; that teas shipped on board any ship or vessel containing so large a quantity of such noxious merchandise as antimony ore would, by reason of their proximity to such noxious merchandise, be greatly deteriorated and affected, and thereby materially diminished in value. The plea then stated, that the master was requested by the defendants to remove and discharge from on board the ship the said antimony ore, and that, after such request, and before the refusal of the defendants as thereinafter mentioned, there was reasonable time and reasonable opportunity for the master to cause the noxious merchandise to be removed and discharged out of the ship, but he wholly refused so to do, and persisted in keeping the same on board of the ship, to be therein conveyed on the said voyage to London; wherefore, and by reason of the promises aforesaid, the defendants did refuse to ship and put on board the ship any teas whatsoever.

The plaintiff joined issue on the fourth plea, and to the sixth replied de injuriâ.

At the trial, before the Lord Chief Baron, at the London Sittings after last Trinity Term, it appeared that the master of the chartered vessel took on board at Singapore, for London, about eighty tons of antimony ore, for which freight was paid as merchandise, but which was stored as ballast, and occupied no more space than ordinary ballast, leaving to the charterers the full bulk of the vessel, to be loaded by them with tea. The defendants in consequence refused to ship any tea, alleging that it would sustain injury from being loaded in the same vessel with the antimony. The charter-party contained the following stipulation: Such side dunnage, consisting of sapan wood or rattans, as may be required for stowing the homeward cargo, charterers' agents to have the option of putting on board at Singapore, at the rate of two pounds per ton of

1850.

TOWSE

บ.

HENDERSON.

1850.

TOWSE

V.

HENDERSON.

twenty cwt. net, delivered in London." Numerous witnesses were called on the part of the plaintiff, to prove that teas had been frequently brought to this country in ships having antimony on board as ballast, and that the teas were in no way injured. On behalf of the defendants, evidence was adduced to shew that the tea would have been injured if shipped on board a vessel having such a description of ballast on board. The defendants' counsel objected, first, that the charter being for a full and complete cargo of tea, everything to be carried in the nature of profit upon the ship should be put on board by the charterers, and that the owner had no right to carry even ballast on freight or profit. Secondly, that the defendants were entitled to a verdict on the fourth issue, inasmuch as, although the antimony might not be absolutely prejudicial to the tea, it cast a suspicion on the ship, and that the owner was bound to provide a vessel free from all suspicion. Thirdly, that even if this were not so, the custom of the trade in chartering vessels, which would be engrafted on the contract, would import that a ballast free from all suspicion should be put on board the vessel. The learned Judge left it to the jury to say, whether antimony ore was a noxious merchandise, and injurious to tea, and also whether its presence on board a ship as ballast cast a suspicion on the vessel. The jury having found for the plaintiff,

The Attorney-General, in the subsequent term, obtained a rule nisi to set aside the verdict on the ground of misdirection.

Bovill commenced shewing cause (January 19), when the Court, having intimated their opinion that a shipowner may take on board merchandise as ballast, provided it occupies no larger space than the ballast would have done, called on