and duties then due and of right payable" by defendants (below) to plaintiffs (below), "in respect of divers goods, wares, commodities and merchandizes, to wit 1,000 loads of teak wood," &c., of great value, to wit 50,000l., "whereof the defendants were the owners; which, before then, and whilst the defendants were such owners thereof, to wit on the day and year last aforesaid, had been brought in divers ships and vessels from beyond the seas into the port of Sunderland in the county of Durham, the same being a creek and member of the port of Newcastle-upon-Tyne, *and then landed there, more than ten days before the commencement of this suit, to wit on the day and year last aforesaid." The 2nd count charged that defendants were indebted to the plaintiffs for certain other petty customs, &c., following the first count, but stating the goods to have been "brought in divers ships and vessels from beyond the seas into a creek and member of the port of Newcastle-upon-Tyne, to wit Sunderland, in the county of Durham, and then landed there more than ten days" &c. The 3rd count was similar, except that the goods were stated to have been "brought by the defendants in divers ships and vessels from beyond the seas into a creek belonging to the port of Newcastle-upon-Tyne, to wit into Sunderland, in the county of Durham, and landed in the said creek more than ten days" &c. Plea: Never indebted. Issue thereon. The issue was found for the plaintiffs below, and judgment was entered for them. The bill of exceptions stated that at the Carlisle Assizes, in August, 1852, the issue came on to be tried (1). "And thereupon Unthank and W. D. Seymour supported the rule. (1) Before Wightman, J. This case, The Master, Pilots and Seamen of the Town of Newcastle-uponTyne in the County of Newcastle-uponTyne v. Bradley and Potts, was tried before, at the Cumberland Summer Assizes, 1851, before Williams, J., when a verdict was found for the plaintiffs, leave being reserved to move to enter a verdict for the defendants. In Michaelmas Term, 1851, Unthank obtained a rule nisi for entering a verdict for defendants, or for a new trial. In Hilary Vacation (February 9th), 1852, before Patteson, Coleridge, Williams, and Erle, JJ., cause was shown by Watson and Manisty; and Cur, adv. vult. COLERIDGE, J., in the same vacation, This was an action of debt for petty BRADLEY v. PILOTS OF NEWCASTLE. [ *428 ] [ 429 ] [ 429, n.] the plaintiffs alleged and insisted that they were entitled to an ancient due or duty called *primage, which they alleged was defendants in ships into "a creek belonging to the port of Newcastleupon-Tyne, to wit into Sunderland." At the trial, before my brother Williams, the plaintiff had a verdict, subject to leave to enter it for the defendants on the point presently to be mentioned; and the defendants, besides moving for that, moved also, and obtained a rule nisi, for a new trial on the ground of misdirection. The duty in question was primage, said to be a prescriptive payment, at present claimed by the plaintiffs under a charter of 3 Jac. II., which, after incorporating them under the name of Master, Pilots and Seamen of the town of Newcastle-upon-Tyne, in the county of Newcastle-upon-Tyne, and making several provisions, went on thus: "And, whereas, by the frequent and dangerous incursions of the sea upon the port of Newcastle, the society are put to necessary and extraordinary charges for the prevention and repair of the ruins thereby daily growing, we are willing, for their better assistance therein, that, for the future, they may receive some reasonable payments and allowances in that behalf. Our will and pleasure therefore is, and we do hereby, for us," &c., declare and grant unto the said" &c., that it shall and may be lawful to and for the said master," &c., "to demand, receive, perceive and take of the owner, part owner, master, purser, or factor of every ship or vessel" a certain payment for pilotage, the pilotage extending both to the conducting such vessels up and down the Tyne, and in and out of any of the creeks or members of the same: and the rate being 12d. per foot of draught if loaded, and 6d. more from "all strangers and aliens ;" 8d. if light, with an additional 4d. "of aliens or strangers." Then the charter went on to give, grant and confirm unto the said master &c.: "that all person and persons, as well subjects as strangers born, being owner or owners 99 66 of any goods, wares," &c., which shall be brought in any ship from beyond the seas "into the said river of Tyne, or the creeks or members aforesaid, or any creek or member belonging to the said port of Newcastle-upon-Tyne, shall, from time to time, as often as such goods," &c. "shall be so brought in, pay an ancient duty heretofore lawfully, accustomably and usually paid to the said Company," *&c., "called primage, that is to say: 2d. of every tun of wine, oil and all other goods, wares, merchandizes and commodities rated and accounted by the tun (fish killed and brought in by the Englishmen only excepted), and 3d. for every last of flax,' &c., "or any other goods," &c., "rated and accounted by the last, in manner and form following: that is to say: aliens and strangers born, and all other such person or persons which, with their said ships or vessels, shall arrive within the said port or in any of the said creeks or members, and not belonging to the same, before they depart with their ships or vessels from the said port or forth of the said creeks, shall pay the duties aforesaid for and in the name of primage, as is aforesaid: and every free merchant and other inhabitant of Newcastle aforesaid, arriving with their said ships or vessels within the said river of Tyne, shall pay the duties aforesaid within ten days after the landing of the said goods as aforesaid, upon lawful demand." The defendants admitted the payment of primage at Newcastle for ships coming into the Tyne: but, it being admitted on the other hand that they were merchants and natives of Sunderland, and the claim being in respect of goods brought into Sunderland, of which they were either the owners or importers, they denied their liability, both upon the construction of the charter and its validity in so far as it extended to Sunderland. Much evidence was produced on payable to them by all persons being owners of any goods, wares or merchandizes *brought in any ship or vessel from beyond the both sides and, among other things, on the part of the plaintiffs was the very strong fact of a payment of the duty, under the same circumstances as those under which the defendants were now charged, for more than sixty years. At the close of the case, it appears that the course which the learned Judge took was this: treating the case, except as it might be affected by the construction to be put on the charter, nearly as an undefended cause, in consequence of the evidence of payment for so long a time, he reserved that point of construction for us, and, without comment or explanation, and without himself directing the jury at all as to the construction of the charter, or the effect of much documentary evidence put in by the defendants, simply asked them if they had any doubt that this was an immemorial payment. Upon which the jury found it to be an ancient due from time immemorial, belonging by prescription to the plaintiffs as corporation. a Now it seems difficult to uphold this way of dealing with the case, unless we are prepared to maintain that the usage of payment here proved was, per se, and in spite of any evidence to the contrary, conclusive to establish the immemoriality and prescriptive nature of the due claimed. If the construction and validity of the charter, if the construction and weight *properly due to the documents produced on the part of the defendants, could be at all material helps to the jury in drawing their conclusion, it seems clear that they have not received the assistance which the learned Judge ought to have afforded them; and that their attention would be diverted from all the other evidence in the cause, and exclusively turned to the single and intelligible fact of payment. †40 R. R. 769 (1 Cr. M. & R. 877). See S. C. upon a second trial, 2 Cr. M. & R. 393; see 40 R. R. 777. Still This fact was undoubtedly very cogent: and it might in the end have prevailed over every doubt suggested by the other parts of the case. the defendants were entitled to have those other parts brought under the consideration of the jury, with all proper advantages, before they came to their conclusion. The rule has never been laid down on this matter more strongly than in Jenkins v. Harvey.† It has been questioned whether it was not there laid down too strongly; see Brune v. Thompson.‡ But, adopting the language used there,§ it went no farther than this: that "from uninterrupted modern usage" a jury "should find the immemorial existence of the payment, unless some evidence is given to the contrary." Here the defendants contended that, even under the terms of the charter, there was no liability to the payment; and, further, that Sunderland was from time immemorial a separate port, of which the Bishop of Durham was the grantee and lord: and that, although for fiscal purposes it had been made a member of the port of Newcastle, it was, for the purpose in question, distinct from it; and that the grant of the Crown therefore at any period could not, as the charter in question did not, extend to it. Had the grounds and evidence on which this case rested been laid before the jury, they might still have found the payment immemorial, or they might not; and therefore we think there must be a new trial. The learned Judge has reserved for our consideration the construction of the charter. It appears to be exactly one, the construction of which may be materially helped by the evidence of usage. But a few remarks on the language of it may be of service upon a new trial. First: it is to be observed 552). 62 R. R. 430, 437 (4 Q. B. 543, § 40 R. R. 776 (1 Cr. M. & R. 894). BRADLEY c. PILOTS OF seas into the port of Newcastle-upon-Tyne, or into any of *the creeks or members thereof: and they alleged and insisted that NEWCASTLE, Sunderland was a creek or member of the port of Newcastle-upon[*432 ] Tyne and they sought to recover from the defendants the sum of 241. 58. as and for primage, alleged by the plaintiffs to be payable to them by the defendants in respect of goods brought by the defendants in ships from beyond the seas into Sunderland aforesaid. And, in support of their said claim, and to maintain the issues above joined, the plaintiffs then and there produced and gave in evidence to the jury," "amongst other things, an inspeximus charter, granted to the plaintiffs by King Edward the Sixth." The bill then set out the charter, which was of 20th October, 3 Edw. VI., and which recited by inspeximus, and confirmed, a charter of 5th October, 28 Hen. VIII., incorporating the Master and Wardens of the Fraternity or Guild of the Holy [ *433 ] [ *432, n. ] that the grant in question follows on as same; the second and only other division is "every free merchant and other inhabitant of Newcastle aforesaid, arriving with their said ships or vessels within the said river of Tyne." It is clear that a Sunderland man importing into Sunderland is not within the latter division; nor is he within the former, if the words "not belonging to the same" refer to the creeks or members, as well as to the port; and, according to ordinary rules of construction, they certainly do. If this were a charter of yesterday, and there were no usage to throw light on it, all that could be said for the plaintiffs would be that it was most unreasonable wholly to exempt importers, inhabitants of Sunderland, when those of Newcastle were charged; and it might be said, on the other hand, to be equally unreasonable not to give them, if liable, the same time for payment as the Newcastle men. But the strongest answer would be, quod voluit non dixit; there are no words to embrace the Sunderland importer into Sunderland, if it was intended to include him. We are not, however, dealing with a charter of yesterday, and there is ambiguity enough to let in the evidence relied on on both sides. Rule absolute for new trial. BRADLEY v. PILOTS OF and Indivisible Trinity, in the town of Newcastle-upon-Tyne, by that name. The bill further stated that the plaintiffs gave in evidence an inspeximus charter of 1 Mary, confirming the charter NEWCASTLE. of Edw. VI., and also a Royal Commission and return thereto, whereby the Commissioners found that there were five creeks belonging to the port of Newcastle-upon-Tyne, namely Blyth, Sunderland, Hartlepool, Stockton and Whitby. That the plaintiffs also gave in evidence three charters respectively granted to plaintiffs by James I. (3 Jac. I.), by Charles II. (16 Car. II.) and by James II. (3 Jac. II.): "which said three last mentioned charters, so far as the same related to the said due called primage, were and are all alike and which said last mentioned charter, granted by King James the Second, was and is in the words following." The charter was then set out. It incorporated the Master, Pilots and Seamen of the town of Newcastle-upon-Tyne, in the county of Newcastle-upon-Tyne, by that name (1). It also made regulations for appointing pilots, "for the bringing up and carrying down the river Tyne, and in and out of all or any other the creeks and members" "belonging to the said town and port of Newcastle-uponTyne, all ships" &c. "And, whereas by the frequent and dangerous incursions of the sea upon the port of Newcastle the Society are put to necessary and extraordinary charges for the prevention and repair of the ruins thereby daily growing, we are willing, for their better assistance therein, that, for the future, they may receive some reasonable payments and allowances in that behalf. Our will and pleasure therefore is, and we do hereby, for us, our heirs and successors, declare and grant unto the said Master, Pilots and Seamen, and their successors, that it shall and may be lawful to and for the said Master, Pilots and Seamen" "to demand, receive, perceive and take, of the owner, part-owner, master, purser or factor of every ship or vessel so by them or any of them to be conducted as aforesaid, being loaden, for every foot which such ships or vessels, so by them to be conducted and loaden, shall draw, 12d. of lawful money of England, as hath been usually received and taken by the said Company; and also the sum of 6d. more of like money of all strangers and aliens only, over and besides the said 12d. in this behalf formerly paid; and, for every foot which such ships or vessels which shall be light, being so conducted, shall draw, 8d., as formerly the said Company have usually taken; and also the sum of 4d. more of like money of (1) The name was not uniformly given in the charter. R.R.-VOL. XCV. 40 [ *434] |