Leidemann v. Schultz.

has put on the expression be correct, he was right in rejecting the evidence. But when it is known that there is an act of parliament regulating the turns of loading coal in the Tyne, and that there are a great number of vessels at Newcastle hurrying to take in their cargoes of coke, one would be led to think that there would be a practice as to the loading of vessels, and that the words "in regular turns of loading" would mean that turn which, according to the custom or practice of the place, the ship would be entitled to have. I think, evidence was admissible to explain the expression. We must assume for the purpose of this argument, that such a practice could have been proved, because by rejecting it the Judge has, in effect, decided that the custom has no bearing on the case, if made out. The case is very similar to that of Robertson v. Jackson, and other like cases, in which terms have by usage been engrafted upon contracts in some instances, though not expressed. Here, however, the term is expressed.

WILLIAMS, J. I am of the same opinion. The question is, whether the direction of the Judge below was correct, and whether he was right in rejecting the evidence of the custom. I think that he was wrong on both points. He directed the jury that the phrase "in regular turns of loading" meant that the coal was to be put on board first, and the coke afterwards. The evidence would, I think, have set him right on this point, and had he admitted it he probably would have directed the jury otherwise.

TALFOURD, J. I am of the same opinion. It seems to me that the expression " in regular turns of loading" has reference to something dehors the charter-party itself.

Bovill. The appellants should have their costs. It is the usual practice. Sometimes the successful party has the costs of the new trial, as well as of the appeal, taxed for him.

Udall. It is discretionary with the court to make an order as to costs. There is no regular practice. They are often refused. Mountney v. Collier, 2 El. & B. 100; s. c. 16 Eng. Rep. 323. At any rate, the costs of the appeal should abide the event of the new trial.

JERVIS, C. J. In Gibbon v. Gibbon, 22 Law J. Rep. (N. s.) C. P. 131; 20 Eng. Rep. 214, in this court last Hilary term, we at first ordered that the costs of the appeal should abide the event of the new trial, but after consulting my brother Parke and other judges, who told us that in the Exchequer the rule was, that the costs of the appeal should be given to the successful party, we altered our order accordingly in that case. We can only deal with the costs of the appeal. We cannot make the plaintiff, who succeeded below, pay the defendants the costs of the new trial. There is no injustice in saying, that if a party bring his appeal and succeed, he is entitled to his costs of appeal. Appeal allowed, with costs.

The appellant claimed to vote in respect of a freehold which he let for 40s. a year, he agreeing to pay the usual tenant's rates. If he had not so agreed, he could only have obtained 40s., minus the amount of those rates:

Held, that the appellant had not an estate of the clear yearly value of 40s., and therefore that he was not entitled to vote.

If

CASE. At a court, held before the barrister appointed to revise the list of voters for the northern division of the county of Lancaster for the revision of the list of voters for the township of Preston, John Garlick, jun., duly objected to the name of Charles Edward Rawlins being retained on the said list. The facts of the case were as follows:-C. E. Rawlins and others were joint owners of freehold property in Preston; the property was let, and was rated to the poor and other usual tenant's rates, which included a water rate and local board of health rate. It was part of the terms of the letting that these rates should be paid by the owners, and they were so paid. the owners had not agreed to pay the amount of those rates the rent obtained from the tenants would have been diminished by that amount. An agent had been appointed on the behalf of the owners, who managed the property, collected the rents, and, after paying all the necessary expenses incidental to the property, including the tenant's rates, divided the balance by the number of owners and transmitted to C. E. Rawlins and other persons interested the amount of their respective shares. After paying the other necessary expenses, but before paying the tenant's rates, the agent had each year a sum in hand which, if divided by the number of owners, would give 40s. clear as the share of C. E. Rawlins and the others respectively. After paying the tenant's rates the sum remaining in the agent's hand would, if divided by the number of owners, give as the share of C. E. Rawlins and the others respectively, a sum less than 40s. by precisely the amount of the rates, so that although the agent received from the tenants on account of each owner more than 40s. a year in the first instance, that sum underwent two reductions whilst still in his hands. In the first place, it was reduced to 40s. by the payment of expenses other than the tenant's rates; in the second place, it was reduced below 40s. by the payment of the tenant's rates themselves or any one of them, and the sum actually transmitted each year to C. E. Rawlins and to the other owners respectively, as their resulting share, was less than 40s. by the amount of the tenant's rates. Upon

123 Law J. Rep. (N. 8.) C. P. 19; 17 Jur. 1184.

Moorhouse v. Gilbertson.

this state of facts it was contended on behalf of the voter that inasmuch as the water rate and the local board of health rate were mere voluntary payments on the part of the owners, and inasmuch as by the statute 18 Geo. 2, c. 18, s. 6, the parochial rates were not to be deemed charges payable out of the property, that, therefore, neither the one or the other ought to be deducted in estimating its annual value. On behalf of the objector it was urged that though not charges payable out of the property, the parochial rates were, nevertheless, payments which diminished its annual value to the owners, and that the water rate and local board of health rate were not mere voluntary payments, but payments which the owners must of necessity make in order to procure from the tenants the stipulated amount of rent, and that therefore all these rates ought to be deducted. I decided that the annual value of the property in question to C. E. Rawlins and the other owners respectively did not amount to 40s.; that in estimating such annual value to C. E. Rawlins and the other owners respectively, there ought to be deducted under the circumstances the amount paid for the tenant's rates, including as before mentioned the parochial rates, the water rate and the local board of health rate, and that the real value of the property to the voter therefore was not 40s., but 40s. minus the amount paid for tenant's rates. I expunged the name from the list. The names of 104 other persons were also expunged from the list on the same ground, and their appeals were ordered to be consolidated.

Edward James, for the appellant. The decision of the revising barrister was wrong, as, in estimating the value of the freehold, he ought to have put out of consideration each one of the three rates mentioned in the case, namely, the parochial rate, the water rate, and the local board of health rate. The question depends upon the 18 Geo. 2, c. 18, ss. 5 and 6. The 5th section provides "that no person shall vote in any such election without having a freehold estate in the county for which he votes, of the clear yearly value of 40s., over and above all rents and charges payable out of or in respect of the same;" but by section 6, "no public or parliamentary tax, county, church, or parish rate, or duty, or any other tax, rate or assessment whatsoever, to be assessed or levied upon any county, division, rape, lathe, wapentake, ward, or hundred," is to be deemed or construed to be any charge payable out of or in respect of any freehold estate, within the meaning and intention of the act.

JERVIS, C. J. The case does not find the value of the freehold. If the rent is the value, it finds that the tenants would have paid so much less rent if the landlord had not paid these rates.]

But by section 6 these rates are not to be deemed a charge payable. out of the freehold.

[MAULE, J. That section means this, that you are not to consider any thing which the owner has to pay in respect of his enjoyment of that interest which confers the vote. As, for instance, suppose the landlord had to pay an income tax on the rent he received, that is not to be deducted. The legislature considers, that when he pays taxes,

Moorhouse v. Gilbertson.

those taxes will be expended for his benefit; therefore, if out of his 40s. rent he pays 5s. taxes, he still dispends 40s., the 5s. which goes in taxes being dispended as much for his own benefit as the other 35s. may be in obtaining bread for his family.]

If the landlord were in the occupation of this freehold himself, the value to him would be 39s. plus 1s. poor-rate, but in that case the 1s. is not to be deducted. There is no difference between that case and

this.

[MAULE, J. I agree in saying that these rates in that case ought not to be deducted; but before coming to the question, what is to be deducted, there must be 40s. from which to deduct. If the landlord occupied the freehold himself, the 1s. is part of what he dispends. But in this case the landlord does not get 40s., he only gets 39s.; therefore, it is unnecessary to consider what is to be deducted.]

The tenant, here, pays the rate for the landlord.

[WILLIAMS, J. Your argument must come to this, that if it were stated that the rent was 39s., but that it would be 40s. but for the rates, the landlord would be entitled to vote.

JERVIS, C. J. Which is as much as saying, that the higher the rates are the greater is the value.]

Byles, Sergt., for the respondent, was not heard..

JERVIS, C. J. The question is, what is the value of the freehold to the landlord? The value is 40s., if he is entitled to add to the rent the rates which are usually paid by the tenant, but it is not worth 40s. if he is not entitled to do that. I think, that in estimating the value, we must not include those rates, and then the value is not 40s. Before considering what are to be deemed charges payable out of the freehold, the freehold, as my brother Maule has shown, must be worth 40s., but the freehold here is not worth 40s., as the landlord gets only 39s.; therefore, the question does not arise what charges are to be deducted. Unless it can be said that a landlord who receives only 39s. rent, the tenant paying 1s., tenant's-rates, receives 40s., the claimant is not entitled to vote. It is quite clear to me that that cannot be said; and, therefore, the revising barrister was right, and his decision must be affirmed.

MAULE, J. I also think that the revising barrister was right. The question is not one of deduction of charges under the statute, but whether the sum out of which such deduction might have to be made amounts to 40s. I think that it does not. The interest of the claimant in the property may be taken to be represented by the rent, that is, 40s., subject not to any charge or tax upon it, but to an agreement on his part to pay rates, to which his tenant is legally liable. The claimant could only get 40s. for his land with this agreement, not 40s. for the land alone. I agree, that where the owner occupies his own land and pays poor-rates, such payment is not to be deducted from what he dispends, because it is only one mode of dispending; it is a portion of what he enjoys, and the legis

Law v. Blackburrow.

lature treats it just as if it was a payment for the support of his family. The appellant's counsel says, where is the difference between that case and this, where the owner pays the poor-rates out of the rent he receives? The difference is this: in the former case the payment by the owner is in respect of his own interest in the land. În the latter, he pays something which the tenant is liable to pay — something in respect of the tenant's interest in the land. The gross rent in the latter case is not the proper criterion of the value to the landlord, but the gross rent minus the amount which he has agreed to pay for the tenant, that is, which he has agreed not to receive. The case here is to be considered as if no such thing as a tax or rate existed; it is just as if the claimant, not being able to get 40s. for his land without some additional agreement to pay something for the tenant had let it for 40s., agreeing to pay the tolls which the tenant would have to pay every time he went to market; or as if, instead of agreeing to pay, as in this case, for the water the tenant might consume, he had agreed to pay for his beer, I think, therefore, that the revising barrister had no very difficult task to perform, and that he has performed it quite satisfactorily in deciding that the claimant is not entitled to vote.

WILLIAMS, J. I am of the same opinion. The appellant's counsel is driven to admit, if his argument is correct, that a person would have a good vote who could assert, not that his freehold was worth 40s. a year, but that it would be if it were not situate in a parish where the taxes were so heavy.

TALFOURD, J., concurred.

Appeal dismissed with costs.

LAW and others v. BLACKBURROW.1

November 24, 1853.

Arbitration Award Construction - Informal Direction as to Entry of Verdict.

An action of ejectment (before the passing of the Common Law Procedure Act) upon the demise of A and the joint demise of B and C, was referred by a judge's order, after issue joined, to the award, final end, and determination of S., the costs of the cause and reference to abide the event. The arbitrator, after reciting the order of reference, awarded as follows: "I award and determine that the verdict in the said cause be entered for the lessors of the plaintiff":—

Held, per Maule, J., and Talfourd, J., (dissentiente Williams, J.,) in an action by the lessors of the plaintiff, against the defendant, to recover the costs, that the arbitrator having used words which had no technical meaning, must be understood to have finally determined the cause in favor of the lessors of the plaintiff.

1 23 Law J. Rep. (N. s.) C. P. 28; 18 Jur. 130.