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![handle is hein.slavery/ssactsengr0255 and id is 1 raw text is: CHESTER V. WORTLEY
be paid before the removal of the goods from the premises of the undertakers.
Assuming that the 42nd section applies at all, it does not apply to this defendant.
I fully participate in the doubts expressed by the Lord Chief Justice as to the applica-
bility of that section to tolls for using the navigation of the river Ribble. Now, if
the special act had given the company a rate or toll payable by persons using their
navigation, and the 45th section of the general act superadds a remedy by distress or
by action against the owner of the goods carried, what is there in the 42nd section
to change the burthen . It merely says that the rates shall be paid before shipment
of the goods, not saying by whom : it does not even say that they shall be paid by
the owner. There is nothing in the acts to fix this defendant with the liability sought
to be imposed upon him by this action.
WILLIAMS, J. I am entirely of the same opinion. The reason of the thing, and
the analogy to be drawn from the other provisions in the local act as to the tonnage
dues on ships and wharfage dues, irresistibly lead to the conclusion that the liability
to pay the tolls in question is to follow the direct benefit which the owner of the
goods derives from having them carried along the navigation. The question is,
whether that impression is removed by any of the clauses in the general act. I can-
not see anything in that act indicating an intention to throw the burthen on a person
who would not have been liable to the tolls under the special act. The reasons given
by my Lord and my Brother Cresswell satisfy me that Mr. Atherton's argument fails,
and that the defendant is entitled to judgment.
CROWDER, J. I am of the same opinion. By the 71st section of the special act,
the toll in respect of the carriage of goods along the river Ribble is imposed inferen-
tially, though not in terms, upon the person for [409] whom they are carried: and it
is but just that the party benefited by the use of the navigation should pay the tolls.
But it is said that the general act points out the party who is to pay the toll; and
s. 45 is relied on to shew that the defendant, who was the owner of the coals before
their shipment, is the person upon whom the legislature intended to cast the burthen.
Doubts have been expressed by my Lord and my Brother Cresswell, as to whether, by
reason of its language, the 42nd section of the general act is applicable at all to this species
of toll. Whether it is or is not applicable seems, to say the least of it, very doubtful.
But, assuming that it does apply, reading all the provisions of the general act, from
s. 34 to s. 45, I do not find any thing to justify the imposition of the toll upon the
present defendant. He is not, according to my notion, the shipper. The shipper
here is the person who has his ship ready to receive his coals which he has purchased
of Mr. Hargreaves. Nor do I think any argument can be drawn from the interpreta-
tion clause, to shew that the owner of the goods means the person who puts them
on board. I think, looking at those clauses of the general act, it was intended that
the tolls should be pre-paid, but not that they should be paid by a person in the
situation of this defendant. The strongest argument urged by Mr. Atherton was
that arising out of the preponderance of convenience. But I do not appreciate the
weight of that. Take the two remedies,-by distress of the goods, and stoppage of
the vessel,-they would apply equally whether the vendor or the vendee was the
person chargeable with the tolls. Upon the whole, I can see no reason for thinking,
that, under the circumstances of this case the burthen of paying these tolls was
intended to be imposed upon the defendant, and consequently he is entitled to our
judgment.
Judgment for the defendant.
[410] CHESTER V. WORTLEY AND COLE. Jan. 30, 1856.
[S. C. 25 L. J. C. P. 117 ; 2 Jur. N. S. 287; 4 W. R. 325. Followed, Bartlett v.
Lewis, 1862, 12 C. B. (N. S.) 262.]
It is no answer to an application for leave to deliver interrogatories to a defendant,
under the 51st section of the Common Law Procedure Act, 1854, that the answers
to the proposed interrogatories might tend to a forfeiture of the party's estate : the
objection must be made to the particular questions, after the party has been sworn.-
Interrogatories may be administered in an action of ejeetment, even though it may
be brought to enforce a forfeiture.
This was an action of ejectment for breaches of covenaht in a lease granted by one
John Lyne to one George Curnick, of certain premises the freehold whereof was in
1133
17 0. B. 409.](ViewImageLocal?handle=hein.slavery/ssactsengr0255&div=1&collection=&method=preview&ext=.png&size=3)