1832. SCAIFE against TOBIN. has expressly made the payment of freight or demurrage a condition precedent to their delivery, is evidence of a contract by the consignee to pay such demand. In Roberts v. Holt (a) the earliest case on the subject, it was held to be a good custom, that if a merchant in Ireland consign goods to a merchant in London and the master sign a bill of lading, the merchant here shall be liable for freight. In such case the merchant here would receive the goods in pursuance of the bill of lading no doubt in the usual form, and would therefore be liable to the freight. I am clearly of opinion, therefore, that the defendant is not liable in this case, by his contract, express or implied, to this general average, which, in the absence of such a contract, is by the general law a charge on the owner of the goods. But, it is then said, the defendant has a special property in these goods, and is therefore liable as owner; the case, however, does not shew that he has accepted bills on the security of the bills of lading, and even if he had, he would not have acquired any special property until after the general average accrued, and it was incumbent on the plaintiff to shew that he was owner at the time of the loss. PATTESON J., having been counsel in the cause, gave no opinion. Judgment for the defendant. (a) 2 Show. 432. 1832. The KING against The Undertakers of the AIRE Saturday, and CALDER Navigation. (Case of the HUNSLET Mills.) ON appeal against a rate for the relief of the poor of the township of Hunslet, in the borough of Leeds, in the county of York, whereby the defendants and one James Atkinson were jointly assessed in the sum of 271. 12s. 4 d., on a valuation of 1107. 9s. 6d., the defendants' proportion being 67. 18s. 1d., the sessions confirmed the rate subject to the opinion of this Court on the following case: May 5th. The owners of 4township of H., mills in the in compens ation for the loss of water them within the township by an and The situate on the Mr. different town ship: Held, The rate was on "Fulling mill, scribbling mill corn mill, and tolls receivable in respect of them." appellants are the owners of one-fourth part, and Atkinson the owner of three-fourths of the mills, which are mentioned in the statute hereinafter recited as the Hunslet mills, and are situate in the township of Hunslet. At the time of making this rate they were, and still are, untenanted. By the 14 G. 3. c. 96. s. 77. after reciting that, to the end that a full compensation may be made to the several owners, proprietors, and occupiers of the several mills called Nether mills, Hunslet mills, &c., now standing and being upon the river Aire, for all the loss and damage which may be occasioned by the making, deepening, or altering any cuts, dams, locks, or other works of navigation, and the passing of boats and vessels by such mills, it is enacted, that it shall be lawful for the owner, farmer, or occupier of every of the said mills respectively for the that they were not rateable at of the tolls so taken. 1832. The KING The AIRE and time being, to demand and take for his own proper use of the master, owner, or person intrusted with the care of every boat, barge, &c., passing up or down the said river with any goods on board, for which any tonnage rates or duties shall be payable by virtue hereof, the sum of 1s. as a passage toll for passing the lock or locks next adjoining to the pond or head of water belonging to every such mill, for the loss of water to every such mill or pond respectively, and upon nonpayment thereof to take out of the boat or other vessel of the party making such default, a reasonable distress of any of the goods on board, not exceeding 20s. in value, and to sell the same, tendering to the owner, &c. of such boat or vessel, upon demand, the overplus after deducting the said passage toll and the charges of sale. The appellants and Mr. Atkinson were at the time of making the rate, and still are, in receipt of the passage tolls given in the above section to the owners, farmers or occupiers of the Hunslet mills. The lock where the tolls have for many years been collected, being the lock next adjoining the pond or head of water belonging to the said mills, is situate in the township of Leeds and has been rated in that township as part of the Aire and Calder navigation, but not in respect of these tolls. In the course of the navigation adjoining to the said pond or head of water, vessels after passing along part of the river which there forms the boundary of the two townships of Hunslet and Leeds, go along a cut or canal called the Knowstrop Cut, which, as well as its towingpath, is wholly in the township of Leeds. The towingpath for the river navigation, as far as it extends, is in the township of Hunslet, but many vessels navigate the river without using the towing-path, and pass on the the Leeds side of the river. The questions for the opinion of this Court were, first, whether such tolls were rateable; and if so, secondly, whether they were rateable in the township of Hunslet. This case was argued on a former day of the term by Campbell and Blackburne in support of the rate. If the tolls are rateable at all, they are so in Hunslet. They are given as a compensation for the loss of water at the mills, which compensation is, by the act of parliament, to be collected at the nearest lock; not indeed within Hunslet township, but that makes no difference. It is their connection with corporeal property that renders tolls rateable. Here the mills, if they had retained their full flow of water, would have been rateable in Hunslet for their value, derived in part from the entire body of water. Now the quantity of water has been diminished, but the profits, by the statutory compensation, continue the same. It would be hard then if the township were to receive a less rate. It has been long established that tolls, when connected with property in a parish, are rateable there, Rex v. Cardington (a), Rex v. Sir A. Macdonald (b), Rex v. The Oxford Canal Company (c); and it is immaterial where the tolls are collected, Rex v. Barnes (d). The question is, not where they are received, but where the cause of the receipt lies. It may be said, this is in its nature a passage toll; but, as regards these mills, it is only a compensation for the water. It is only made a passage toll for the purpose of ascertaining the persons who are to pay that compensation. [Patteson J. The mills are untenanted.] It is found that the appellants are in the (b) 12 East, 324. (d) 1 B. & Ad. 113. (a) Cowp. 581. 1832. The KING against The AIRE and CALDER Navigation Company. receipt 1832. The KING against The AIRE and CALDER Navigation Company. receipt of the tolls given to the owners and occupiers; the mills are occupied pro tanto. Sir James Scarlett, F. Pollock, Wightman, Dundas, and Heywood, contrà. In all the cases which have been cited, the profit arose from something immediately occupied in the parish for which the rate was made. This is fully pointed out in the judgments of Bayley J. and Littledale J. in Rex v. Coke (a). Here nothing that is occupied in Hunslet acquires any increased value by the tolls. Suppose the compensation settled, by agreement, or by act of parliament, had been an annuity to the owner of the mills; there is no essential distinction between that case and the present, and there can be no doubt that such annuity might have been severed from the mills; the owner might have kept one and sold the other; or he might have granted the mills to a tenant at a reduced rent, and then it is clear that the occupier would not have been rateable in respect of the compensation. Nor is he so here. It might as well be said, that if damages were recovered, or a stipulated remuneration paid, for interference with an easement (as by darkening an ancient light), a rate might be laid in respect of them; for it makes no difference whether the compensation be fixed or casual, or settled by contract, or by statute, which is in effect a parliamentary agreement. The vessels which pay this toll need not pass through any part of Hunslet township, and the tolls are not paid there. There is no necessary connection between this compensation and the land from which the easement (the use of a larger body of water) was taken away. An easement is only the sub (a) 5 B. & C. 804. 812. ject |