1849. PILOTS OF NEWCASTLE บ. HAMMOND. every last of flax, hemp, pitch, tar, and other goods rated THE MASTER by the last, in manner following; that is to say, aliens and strangers born, and other such persons who with their said ships should arrive within the said port and not belonging to the same, before they depart with their said ships from the said port, should pay the duties aforesaid, for and in the name of primage; and every free merchant and other inhabitant of Newcastle, arriving with their said ships within the said river of Tyne, should pay the duties aforesaid within ten days after the landing of the said goods as aforesaid, upon lawful demand by the said master pilots and seamen, which said duty called primage should be to the only use, commodity, and profit of the said master pilots and seamen, and their successors." The goods in respect of which the primage was claimed from the defendant had been brought from parts beyond the seas, in a ship of which the defendant was not owner, into the river of Tyne, and he, as importer there, landed, entered, and warehoused them. The goods, at the respective times of their being so imported, landed, and warehoused, belonged to Messrs. Pinto & Co., merchants in London, for whom they had been so landed, entered, and warehoused by the defendant gratuitously. It was proved that the duties had always been paid by the importer. The learned Judge thought the defendant liable to pay the primage, and directed the verdict to be entered for the plaintiffs, giving the defendant leave to move to enter a nonsuit if the Court should entertain a different opinion. In Michaelmas term last, Martin obtained a rule upon the point reserved; he also moved for a rule, on the ground that the learned Judge had misdirected the jury in telling them, that, upon the facts, they might presume the immemorial existence of the right from modern usage; but the Court refused the rule upon the latter point, upon the authority of Jenkins v. Harvey (a), holding the case to fall (a) 1 Cr. M. & R. 877. precisely within the principle of that decision. A rule nisi having been granted upon the other point, Knowles and Watson shewed cause (a).—The defendant was liable to pay the primage as "owner," within the true meaning of the charter. The word "owner" is not to be taken in its strictest sense: it has no legal meaning. Littledale, J., in Lister v. Lobley (b) says, "As the words 'owners and proprietors' here, have no definite legal signification in themselves, we must take them to mean parties who have any interest." The defendant was the ostensible owner; and the case is not affected by the fact of his being a gratuitous bailee: Rooth v. Wilson (c). In such a case trover will lie: Nicolls v. Bastard (d). And the same rule holds good where articles are stolen. Moreover, the defendant entered these goods at the Custom-house and executed the usual bond, reciting, that "he hath in his warehouse," &c. The plaintiff's argument is fortified by the consideration, that, if the word "owner' were to be construed to mean the absolute owner, great difficulty would arise in finding out the real party to be made liable; for in many cases the owner lives at a distance. If there be any doubt as to the meaning of the word in dispute, the usage ought to be looked at. By that usage, the defendant is the person liable. The case of Vinkestone v. Ebden (e), is strongly in the plaintiff's favour. There it was held, that the master of a ship carrying coals is the importer, and that his goods are liable to a distress for non-payment of the port duties of Newcastle. Martin and Unthank, in support of the rule.-The term 1849. MASTER PILOTS OF NEWCASTLE บ. HAMMOND. 1849. MASTER PILOTS OF NEWCASTLE v. HAMMOND. "owner" means proprietor. The defendant was not even indorsee of the bill of lading, but merely acted as a friend of the owner, and without remuneration. He never had such a property or possession as would have enabled him to maintain trover or detinue; neither, in a criminal prosecution, could the property in the goods have been laid in him, nor could it be said, that the goods were in his possession as reputed owner, within the Bankrupt Act. The bond executed at the Custom-house is no estoppel; it was according to the common form, and expressed no more than that the defendant would be responsible in case the goods were removed before the duty was paid. The doctrine in Pickard v. Sears (a), does not apply, for there is no evidence that the defendant represented himself as owner. The Customs Act distinguishes between a person, who, not being owner, makes the entries, and a proprietor. The defendant is in no sense, within the terms of the charter, "a merchant or inhabitant of Newcastle arriving with his ship." The cases as to freight and general average are analogous, and shew that a mere agent is not liable, unless he expressly promises to pay: Scaife v. Tobin (b), Ward v. Felton (c), Wilson v. Kymer (d), Amos v. Temperley (e). Cur. adv. vult. The judgment of the Court was now delivered by ALDERSON, B. (His Lordship, after stating the facts as above set forth, proceeded):-It was contended, on behalf of the defendant, that he could not be deemed the owner of the goods, within the meaning of the charter; but that, if the primage could be legally charged, Messrs. Pinto & Co., to whom the goods imported belonged, were alone chargeable with it; (a) 6 A. & E. 469. (d) 1 M. & Sel. 157. 1849. MASTER PILOTS OF บ. HAMMOND, and that, his interference with them having been entirely gratuitous, could not operate to extend the liability to him. But the invariable usage proved at the trial, and the futility NEWSLE of making chargeable the merchant to whom the goods may belong, and who, at the time of the importation, may be altogether unknown to the Corporation, may reside in a foreign country, or at a distance from the port, within her Majesty's dominions, shew that the word "owner," as used in the charter, cannot receive so limited a construction. Payment of the primage within the port appears to be contemplated by the charter; and one, under whose claim to the possession of them, the goods are imported, may not improperly be deemed, for the purpose of importation and its incidents, the owner; and accordingly, in claiming the primage confirmed to the plaintiffs by the charter, the invariable usage had been to treat as the owner the importer; and, until the resistance of the defendant originating the present action, the importer had invariably paid it. In the course of the argument, the defendant's counsel observed, that the existence of the usage was not found by the jury. But it is evident from the Judge's notes, that, after the jury had found that the duty had been legitimately established, the learned counsel, who was not likely to foregothe chance of their negativing the existence of the usage, if he could have entertained the slightest expectation of their doing so, was content to rest his defence on the general ownership of Pinto & Co., and the gratuitous nature of the defendant's interference; he could not have done otherwise, as the evidence upon the subject of the usage was wholly uncontradicted. The case then stood thus:-The duty was demandable from persons designated in the charter as owners of the goods imported; the usage shews, that by such designation the importers were intended. The defendant was the importer of the lead. The Judge at the trial held, that, under 1849. MASTER PILOTS OF NEWCASTLE v. HAMMOND. such circumstances Hammond was liable. We think the learned Judge was right; that the defendant's having acted gratuitously for Pinto & Co. did not abridge his liability; and consequently, that the rule for a nonsuit or a new trial should be discharged. Rule discharged. July 6. To an action on a French judg ment, the de fendant pleaded that he was not, during the accruing of the cause of action, or any part of the proceedings, nor from thence hitherto, resi dent in France, or within the jurisdiction of the Court, nor subject to the laws of France; that he was never served with any process or notice whatever; nor had he any no VALLEE and Others v. DUMERGUE. ASSUMPSIT on a judgment for 272,767 fr. 60 cent. recovered by the plaintiffs against the defendant, in the Court of the Civil Tribunal of First Instance of the department of the Seine, sitting at the Palace of Justice at Paris, in the kingdom of France. Plea, that the defendant was not, at any time during the accruing of the supposed cause of action upon which the supposed judgment was founded, nor from thence continually during any part of the said proceedings towards the supposed judgment, and upon which it is founded, nor from thence hitherto, resident in or within the kingdom of France or the jurisdiction of the Court in which the sup posed judgment was recovered; nor was he the defendant, tice whatever of any proceedings in the action; nor did he appear in Court, or have any opportunity of defending himself against the claim, and the proceedings were taken in his absence, and without his knowledge, privity, and consent. Replication, that the defendant became a shareholder in a certain Company in France, subject to all the liabilities and rights attaching thereto. That the defendant was resident in England, and by reason thereof it became necessary, by the law of France, for the defendant to elect a domicile in France, at which the directors of the Company might notify to him all proceedings relative to the Company, or the defendant as such shareholder. That, by the law of France, all legal proceedings affecting any party having his real domicile out of that kingdom, left for him at such elected domicile, were as valid as if left at his real domicile in France. That the defendant made election of domicile at a place in Paris, and gave notice thereof to the plaintiffs. That the assets of the Company being insufficient to discharge their debts, the defendant, as a shareholder, was, by the law of France, liable to pay a certain sum, and to be sued for the same by the plaintiffs. That the plaintiffs, for the recovery thereof, caused a summons to be left at his elected domicile, requiring him to appear in Court at a certain time and place. That the defendant did not appear, according to the exigency of the summons, whereupon the plaintiffs recovered judgment by default. On special demurrer to the replication-Held, first, that the facts stated in the replication afforded an answer to the plea. Secondly, that the word "notice" in the plea, meant actual notice alone, and, consequently, the replication did not amount to an argumentative denial of that notice, but consisted of a statement of facts shewing that no such notice need be given. Whether the plea was bad for omitting to state that the defendant was never resident in, or a native of France, nor at the time of the proceedings had property there-quære. |