1850. SKINNER v. Upon hearing Mr. Watson, of counsel for the plaintiff, and Mr. R. Gurney, of counsel for the defendants, and by consent, it is ordered, that the record be withdrawn, and BRIGHTON, AND that the plaintiff have liberty to amend the declaration. "By the Court, LONDON, SOUTH COAST "R. POLLOCK, Associate." Watson shewed cause.-The defendants are not entitled to the costs, for the order, which was made "by consent," makes no mention of them. The 3 & 4 Will. 4, c. 42, s. 23, empowers the Judge at Nisi Prius, in case of variance, to cause the record to be forthwith amended in any particular not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, upon such terms, as to payment of costs or postponing the trial, or both, as the Judge shall think reasonable; and if the variance is such as that the opposite party may have been prejudiced thereby, then the Judge is empowered to cause the record to be amended, upon payment of costs to the other party and withdrawing the record, or postponing the trial, as the Judge shall think reasonable." The Judge has a discretion as to costs, and may allow the whole, or part, or none. The terms on which the amendment is granted must be contained in the order itself. In this case the Judge has exercised his discretion, and disallowed the costs. But if the Judge has no discretion as to costs, and the statute is to be construed as imperative, then this is not an order in pursuance of it, but an agreement between the parties, that the record shall be withdrawn without costs. 66 Bramwell appeared to support the rule, but was not called upon. POLLOCK, C. B.-The rule ought to be absolute. We must construe the order as made in pursuance of the Act of Parliament, which gives the Judge at Nisi Prius power to amend, upon payment of costs to the other party and withdrawing the record, or postponing the trial. With respect to the objection, that the order makes no mention of costs, whether the Judge has power to make such an order or not is immaterial; for, if the record is withdrawn, or the trial postponed, the payment of costs follows as a matter of course. The plaintiff was not bound to withdraw the record, but might have insisted on going on; in which case he would have been nonsuited, for his counsel admitted that this was a material variance. It was suggested by the defendants' counsel, that they were deceived by the statement in the declaration; and it appeared that in point of fact they were; and I said that I would not conclude the question of costs, but would allow the record to be withdrawn, and, if the plaintiff was liable to pay the costs, he must pay them. PARKE, B.—I am of the same opinion. The order is inaccurately drawn up; but it must be considered as an order made by the Judge at Nisi Prius, in the exercise of his power under the 23rd section of the 2 & 3 Will. 4, c. 42, by which, in case of a variance not material to the merits of the case, and by which the opposite party could not have been prejudiced, the Judge is empowered forthwith to amend the record, upon such terms, as to payment of costs, &c., as the Judge shall think reasonable. That amendment is made by rule of Court, and on payment of the expenses of that rule. But if the Judge is of opinion that the opposite party may have been prejudiced in the conduct of his action, then the record is to be amended, "upon payment of costs and withdrawing the record, or postponing the trial;" and in that case the other party is to be allowed the expenses which might arise from the doing that which could not be done otherwise than by withdrawing the record or postponing the trial. In this case, the 1850. SKINNER v. LONDON, BRIGHTON, AND SOUTH COAST RAILWAY Co. 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 freight as ballast on board his chartered vessel, provided 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 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. occupies no 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 ceive a cargo on bcard. tea. The defendants pleaded (with other pleas not material 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 |