conditional on the plaintiff insuring the freight. The plaintiff would have had no insurable interest after receiving his freight in advance, the risk would have been on the defendant; he, therefore, is the only person who could have insured, and the reasonable construction of the contract is, that he should deduct the cost of doing so. That was the construction put by the Court of Queen's Bench on a similar stipulation in Hicks v. Shield (a). It is quite consistent with the plea that the defendant may have insured the freight himself. The plea should at least have averred that the freight was never insured. Edward James (with whom was Mellish), for the defendant. The true construction of the contract is, that the defendant agrees to advance freight, subject to the plaintiff's insuring to the defendant the return of the freight, either by repaying it to, or insuring it for, the defendant in the event of the freight not being earned. There is a fallacy in the argument that the plaintiff could not insure. He had an insurable interest because he was not entitled to freight until after the termination of the voyage. The defendant then bargained that, the plaintiff having insured so as to place him in a safe position if the cargo should not arrive, he would advance the freight. The effect of the contract is, that the defendant agreed to accommodate the plaintiff if the plaintiff would put him into a condition not to lose by it. There is nothing to indicate that the advance was to be of a sum less than the whole freight. The natural meaning of "subject to" is "on condition," or "provided that" the act stipulated for is done. Thus, "subject to insurance" means insurance by the person to whom the promise to pay is made. [Martin, B.-Suppose that construction is right, might not (a) 7 E. & B. 633. 1858. JACKSON v. ISAACS. 1858. JACKSON t. ISAACS. the plaintiff have insured at any time before the loss of the vessel? The charterer was bound to give his acceptance on the ship's clearing at the custom house. It was therefore not a condition precedent to the plaintiff's right to receive this acceptance that he should have insured.] It is not disputed that the payment of freight was to be in advance, but to avoid circuity of action the defendant may set up as an answer that the plaintiff has not insured. In fact the non-insurance goes to the whole consideration. [Martin, B.-To make out a defence on that ground, the damages in the two actions should be necessarily identical, but in an action for not insuring the damages would not necessarily be the whole amount of freight.] POLLOCK, C. B.-I am of opinion that the plea is bad for many reasons which have been mentioned during the argument. MARTIN, B.-I am of the same opinion. BRAMWELL, B.—I am also of opinion that the plaintiff is entitled to judgment. As a matter of construction I have no doubt as to the meaning of this contract, viz., that the advance of freight was to be subject to an allowance for the premium on the policy of insurance. But the plea is bad in any view. If the defendant insured the freight for 5007. he would be entitled to recover the whole amount from the insurer. If Mr. James's argument is right, the plaintiff is not entitled to be paid the entire amount of the freight, but a sum minus the premium on the policy. Therefore, in the cross-actions, the plaintiff and defendant would not be entitled to the same damages. WATSON, B.-There is no doubt what is meant by this stipulation. It provides for a payment of freight in advance : De Silvale v. Kendall (a). The defendant then is the only person who would have insured the freight. It, therefore, seems clear that the payment by the defendant was to be subject to a deduction for the expense of the insurance which he was to effect. Judgment for the plaintiff. (a) 4 M. & Sel. 37. 1858. JACKSON v. ISAACS. FIELD. THE NEWPORT, ABERGAVENNY AND HEREFORD RAILWAY COMPANY. TROVER for waggons and coals. -- Pleas. First, not guilty. Secondly, that the goods were not the goods of the plaintiff. Thirdly, that the defendants had carried the goods, and also certain other goods which had been removed from the defendants' premises, along the defendants' railway for the plaintiff: that tolls had become due from the plaintiff to the defendants in June 10. By the 8 & 9 s. 97, it is pro vided that if, on demand any person respect of any it shall be the carriage, &c., of the party liable to such tolls, and out of the monies arising from such sale to retain the tolls.-Held, that a demand of the sum actually due for tolls is a condition precedent to the right to sell under this section. By the 9 & 10 Vict. c. ccciii., s. 29, a railway Company were empowered to take tolls for the use of their railway in respect of the tonnage of articles conveyed upon the railway certain sums per ton, and a further sum if conveyed in the carriages of the Company; and by s. 30, tolls for the use of engines. Section 35 fixed a maximum rate of charge, including the charges for the use of carriages, waggons or trucks, and for locomotive power, and all other charges incident to such conveyance. By section 37, the Company were empowered to take increased charges for the conveyance of goods, by agreement with the owners of goods, by reason of any special service. The Company having for a considerable time carried on their line coals in carriages belonging to the plaintiff, from P. to H., made a demand of a gross sum equal to the amount of the tonnage rates for coals and use of engines; and also of a sum claimed by them for sending back the plaintiff's empty carriages from H. to P. They gave no explanation of the items making up the gross sum claimed. The plaintiff having omitted to pay the amount claimed, the Company sold the plaintiff's carriages, &c., to satisfy the amount due.-Held, that the sum claimed for sending back the return waggons was not toll, and that the Company having demanded a larger sum than that due for tolls, the sale was unlawful. Semble, that the Company might be entitled to charge for sending back the waggons by agreement as for special services under section 37. 1858. FIELD v. NEWPORT, VENNY AND HEREFORD RAILWAY CO. respect of the said carriage and goods, which had been duly demanded by the defendants of the plaintiff, but which the plaintiff failed to pay. Wherefore the defendants sold the goods to pay for the tolls due. The plaintiff took issue on all the pleas, and to the third also replied:-Secondly, that he was ready and willing to pay all tolls legally due to the defendants in respect of the said carriage &c., and that before the sale he tendered and offered to pay to the defendants the sum of 365l. 3s. 6d., being the whole amount legally due and payable as and for such tolls, which sum the defendants refused to accept. Thirdly, that the defendants did not before the sale demand of the plaintiff the tolls due to the defendants in respect of the carriage and goods, but a much larger sum than was due. - Whereupon issues were joined. The cause came on to be tried before Alderson, B., at the Gloucester Summer Assizes, 1856, when a verdict was taken by consent, subject to a case, which was in substance as follows: Between October 1854 and April 1855, the defendants had conveyed upon their railway 2,378 tons of coal and 58 tons of guano for the plaintiff (a). (a) By the Newport, Abergavenny and Hereford Railway Act, 1846, (9 & 10 Vict. c. ccciii.), s. 29, it is enacted "that it shall be lawful for the Company to demand any tolls for the use of the railway, not exceeding the following, that is to say, in respect of the tonnage of all articles conveyed upon the railway, or any part thereof, whether propelled by engines belonging to the Company or otherwise, as follows:For all sorts of manure, &c., coals, &c., per ton per mile not exceed ing one halfpenny; and if conveyed in carriages belonging to the Company an additional sum per mile per ton not exceeding one-eighth of a penny *** For all goods, wares, or merchandize, matters or other things (for which no other payment is herein imposed), per ton per mile not exceeding twopence; and if conveyed in carriages belonging to the Company an additional sum per ton per mile not exceeding one halfpenny; and for every carri age of whatever description, not The coals were carried from the Pontypool Junction to Hereford a distance of 33 or 34 miles: the guano a somewhat longer distance. One hundred and sixty tons of the coal and all the guano were conveyed in waggons belonging to the defendants, and the rest of the coal in the plaintiff's waggons. The loading and unloading were done by the plaintiff. When the coals had been delivered the defendants conveyed back the plaintiff's empty waggons from Hereford to the Pontypool Junction, and 314 of such waggons of the average weight of four tons were conveyed during the above mentioned periods, some for a distance of 33, some for a distance of 34 miles. The defendants delivered to the plaintiff monthly accounts of the weight of coals and guano being a carriage adapted and used for travelling on a railway, and not weighing more than one ton, carried or conveyed on a truck or platform, per mile not exceeding sixpence, and a sum not exceeding twopence per mile for every additional quarter or fractional part of a quarter of a ton which any such carriage may weigh; and if such carriage be conveyed on a truck or platform belonging to the Company an additional sum per mile not exceeding twopence." By section 30, "The toll which the Company may demand for the use of engines for propelling carriages on the railway, shall not exceed for coals, &c., three-eighths of a penny per ton per mile, and for other goods one halfpenny per ton per mile." * * By section 35, "The maximum rate of charge to be made by the Company, including the charges for the use of carriages, wag gons or trucks, and for locomotive By section 37, nothing therein 1858. FIELD v. NEWPORT, VENNY AND HEREFORD RAILWAY CO. |