and from which the trips are of course less frequent.

On the first class therefore,

I think the duty is clearly given by the express words of the act: with respect to the second, I am less confident, because I have the misfortune to differ from the rest of the Court.

TAUNTON, J. Of the first two vessels mentioned in the case, one took in the whole, the other part of her cargo at Goole. I think that on those the duty attaches, for the reasons already given. They come within the forty-second-section, but that I think is owing merely to the accident of Goole having been made a port, otherwise they would be in the same situation as vessels trading from Leeds. The other two vessels, I think were not liable. The one having taken her cargo at Leeds, passed into the harbour of Hull and unloaded there; she had, in the course of her voyage, gone through the entrance basin of the Goole docks, but had not taken any goods, nor is it said that she made any stay there. The other loaded at Hull, and went to Leeds, also passing through the entrance basin of the docks at Goole, but she, too, does not appear even to have made a rest there. Then the question is, whether a ship so taking or discharging her cargo at Leeds, can be considered as coming to or going between the port of Kingston-upon-Hull, and a port to the northward of Yarmouth and southward of Holy Island, it being agreed that Goole is such a port? I think not, because the port so described ought to be a terminus to the Voyage: and a mere passage through the entrance basin of a dock is not a coming to such port, *or going between it and Hull, within the meaning of the first clause. Nor is the voyage to Leeds a trading between Hull and any "other port or place," within the meaning of the third clause; for "place" must be something ejusdem generis with "port;" that is, lying on the coast, and not situated internally as Leeds is. I am therefore of opinion, that the duty attaches on the first two classes of vessels, but not on the last.

[*192

PATTESON, J. Where a duty is claimed, those who seek to enforce it must shew some clear words by which the legislature has imposed it. With respect to the last two cases, I find no words in the 42nd section of this act, applying to the inland navigation between Hull and places up the river. I think it was clearly not intended to lay the duty on vessels going to and from such places, before Goole was a made a port; and I cannot see why it should be demandable now because Goole is port, and a vessel merely passes through the mouth of that port. If the vessel came from Goole, or took in her cargo or part of it there, there are distinct words in the first clause applicable to that case, for Goole is a port, and is to the northward of Yarmouth, and southward of Holy Island. The argument for the plaintiffs went the length of contending that the words of that clause might include a port on the west side of England, as Liverpool; but that is going too far: the words can only apply to a port which has its sea-mouth (if I may so express it) on the east coast.

Judgment for the plaintiffs as to the first two vessels; for the defendants as to the last two.

*FRIEDLANDER v. The LONDON Assurance Company. Nov. 14. [*193

If a witness on a trial gives evidence against the interest of the party calling him, such party may bring other witnesses, not to discredit him generally, but to contradict him on the fact to which he has deposed, if it be material to the issue; not if it be merely collateral.

In an action upon a policy of insurance against fire, one issue was, whether or not goods of the plaintiff had been destroyed by fire as alleged in the declaration. A witness was called for the plaintiff, to prove that part of the goods were supplied to the plaintiff by him before the fire; but on being shewn an invoice and letter relating to such goods, he stated that they were written by him, but that he never delivered such goods to the plaintiff; and he deposed that the letter (supposed to have been sent from Edinburgh)

was written by him in London, at the desire of the plaintiff; that the invoice was drawn up by him (the witness) after the fire, in the presence of the plaintiff's son and shopman; and that the son and shopman persuaded him to state that the goods had been sent according to the invoice and letter:

Held, that the son and shopman, who had already been examined for the plaintiff, might have been called back to contradict all these statements.

COVENANT on a policy of insurance against fire. The declaration, after setting out the policy, stated that the plaintiff was interested in the goods thereby insured, to the amount mentioned therein, and that after the policy was effected, and while he was so interested, the said goods were destroyed by fire, &c. The defendants pleaded, among other things, that the plaintiff was not interested in the said goods to the said or any amount, and that the said goods were not destroyed by fire; and on these averments the parties went to issue. At the trial before Lord Tenterden, C. J., at the London sittings after Hilary term 1832, the plaintiff called witnesses to shew that goods of considerable value had been sent in to him, on the premises in question, by various persons, before the fire happened. Among others one Lewin Samuel Friedlander was examined, for the purpose of proving that he (L. S. Friedlander) had sold and delivered certain goods to the plaintiff before the fire, and had, on that occasion, sent him an invoice and letter from Edinburgh, relating to such goods. The witness, on his examination in chief, when the invoice and letter were shewn to him, admitted that he wrote the invoice, but denied that he had ever sent the goods, and said 194*] that the invoice was made out by him after the fire, in the presence of the plaintiff's son, and Nathan his shopman; that the letter was, in fact, written in London, at the plaintiff's house and by his desire; and that the plaintiff's son and shopman had persuaded him to say that he had sent the goods. It was then proposed, on the part of the plaintiff, to call the son and the shopman (both of whom had been examined before) to prove that the invoice was not made, nor the letter written, under the circumstances alleged, and that they had not acted in the manner stated by the witness. Lord Tenterden rejected the evidence, being of opinion that the plaintiff was not entitled to offer it, in contradiction to his own witness; and the jury found a verdict for the defendants. A rule having been afterwards obtained for a new trial.

Sir James Scarlett, Campbell, and Kelly, now shewed cause. The evidence was rightly rejected. The witness was called to prove that certain goods were sold and delivered to the plaintiff before the fire. To that extent, if his evidence was adverse, the plaintiff was at liberty to put in other testimony. But the questions which were put to him respecting an invoice and letter were clearly collateral to the matter in issue; to contradict the witness on those points could only have the effect of proving that he was unworthy of credit; and it is an established rule, that a party cannot take this course against his own witness. Ewer v. Ambrose, 3 B. & C. 746, Bradley v. Ricardo, 8 Bingh. 57, shew that a witness may be contradicted as to material facts by the party calling him, but not generally discredited. The evidence here offered could have no other tendency.

*195] *Holt and Follett contrà. It is true that evidence cannot be given to discredit a witness generally, by the party calling him. But if he has given evidence on a particular point contrary to expectation, and operating as a surprise on that party, other witnesses may be called to give different testimony as to the individual transaction, if it be, as in this case, not merely collateral, but important to the issue. [PARKE, J. The witness may be contradicted as to matters that are not purely collateral: the question is, whether that was the object here. To contradict the witness on a collateral fact would be only to discredit him in the same manner as if you proved that he had been guilty of a felony.] It is settled law, that although a party cannot bring evidence to discredit his own witness, he may to contradict him, if the fact be material to the

issue. Here it was so.

The plaintiff claimed damages for goods which he

alleged to have been on his premises, and to have been destroyed by fire. The defendant denies that they were there at the time of the fire: the plaintiff asserts the contrary, and that they were, bonâ fide, purchased at a time previous to that event. The plaintiff might clearly have called another witness to prove that fact before he called L. S. Friedlander. But Friedlander is first called for this purpose, and a letter and invoice are put into his hands, which tend materially to shew that the goods were, bona fide, purchased. He denies that the drawing up of these was a genuine transaction. Then may not the plaintiff set up another witness named in his brief, and who might have been called before, to shew the real character of this letter and invoice? It may be said that the question as to the invoice is collateral only,* because no act appears done by the plaintiff himself with respect to it. But the essential point was [*196 to shew that the document was fabricated; no matter by whom. Friedlander asserted that it was fabricated by the plaintiff's son: it was material to establish on the other hand, that the invoice was not fabricated with his concurrence, because, if it was his fraud or Nathan's, proof of that fact was as conclusive against the plaintiff as if it had been his own. The point of contradiction was one on which the whole issue turned; and the evidence given was not to affect a prior witness, but to prove a substantial and leading fact in the cause. If the son or shopman might have been examined as to this fact before Friedlander, why not after? It cannot be maintained, that because a witness has, by his statement out of court, deceived the .party preposing to call him, he shall be enabled to preclude that party from giving the other evidence with which he was prepared, to the same facts. It was once supposed that a party could only give this contradiction where the witness was forced upon him by law, as the subscribing witness to a deed or will. But the more comprehensive rule is now clearly established. Alexander v. Gibson, 2 Camb. 556, Ewer v. Ambrose, 3 B. & Č. 746, Bradley v. Ricardo, 8 Bingh. 57. In Richardson v. Allan, 2 Stark. N. P. C. 334, a witness called by the plaintiff to prove an indorsement denied the genuineness of the hand-writing, and Lord Ellenborough, though he thought the plaintiff could not prove the contrary by other witnesses, allowed the indorser to be called, because his testimony went to charge himself. But it is clear now, that if the indorser in *such a case had been first called and denied the writing to be his, the plaintiff might still have brought forward his other witnesses to prove the contrary.

[*197 PARKE, J. There is no dispute in this case as to the law; the application of it only is in question. It is clear that a party may contradict his own witness if he speaks to a material fact in the case, against the interest of those who called him. On a collateral fact he cannot be contradicted, not only because such evidence goes to the credit of the witness, but because a multiplicity of issues ought not to be introduced. Now here the conduct of the plaintiff himself in directing the letter to be written was clearly a material fact, on which the witness might be contradicted. On the point as to the invoice, I thought at first that the acts of the plaintiff's son and shopman were not so pertinent to the case as to admit the contradictory testimony. But I am now of opinion that those acts were not collateral, because it was material to the issue to shew that the invoice existed before the time of the fire, and was a genuine document. The evidence, therefore, ought to have been received.

TAUNTON, J., concurred.

PATTESON, J. The whole question is, for what purpose it was proposed to call back the witnesses, who had already been examined. The law is clear, but there is a good deal of difficulty in the application. I had a doubt at first, whether the plaintiff's son and shopman could be called to contradict a witness who stated that the invoice had been fabricated by him in their presence, and that they had persuaded him to say that the goods were sent conformably to the letter and invoice. It struck me that this would have been [*198 offering contradiction on a collateral point. But I am satisfied that the evidence

on these facts was admissible, on the ground that they were not collateral, but material to the issue; and the genuineness of the letter was clearly a material question in the case. The rule will therefore be absolute.

DENMAN, C. J., having been counsel in the cause, gave no judgment.

Rule absolute.

Ex parte CORDING. Nov. 15.

The pawnbroker's act, 40 G. 3, c. 99, s. 24, enables justices in case it shall be proved before them that any goods pawned have been sold contrary to the act, or have been embezzled or lost, or are become or have been rendered of less value than at the time of pawning, through the default, neglect, or wilful misbehaviour of the person with whom the same were pawned, to award satisfaction to the owner, as there specified: Held, that justices have no power, in the above cases, to commit in default of such satisfaction being made.

Quare, Whether a pawnbroker is answerable for pledges destroyed by accidental fire, as goods "lost" within the above clause.

Semble, that the words "through the default," &c., apply to all the cases previously mentioned, and not only to that of the goods pawned having become of less value.

IN obedience to a writ of habeas corpus, the governor of the House of Correction in Cold Bath Fields brought the above party before the Court, and returned, as the cause of his being taken and detained, the following warrant of commitment:

"To all constables and other peace officers of the county of Middlesex, and to the governor of the House of Correction at Cold Bath Fields in the said county.

"Whereas, on the 2d day of October, 1832, George Courtney, of, &c., gen*199] tleman, informed me, William Ballantine, Esq., one of his Majesty's justices of the *peace for the said county of Middlesex, that on the 11th day of January in the year aforesaid he pawned one gun, of which he was the real owner, for securing the sum of 21s. lent thereon by John Masheder Cording, of the parish of St. George in the said county, pawnbroker, and the profit thereof; and that the said G. Courtney had, within the space of one year after the pledging of the said gun, to wit, on the 28th day of September in the year aforesaid, duly tendered unto the said J. M. C. the said sum of 21s., the principal money borrowed upon the said gun, and the profit due to the said J. M. C., according to the table of rates established by the act of parliament in such case made and provided, and thereupon demanded and required the said J. M. C. to deliver back the said gun to the said G. Courtney; but that the said J. M. C. did, on the said 28th day of September in the year aforesaid, at, &c., unlawfully, and without shewing reasonable cause for so doing, neglect and refuse to deliver back the said gun to the said G. Courtney; and whereas the said J. M. C. appeared before me, the said justice, on the 2d day of October in the year aforesaid, at the Thames Police Office, in the parish, &c.: and I, the said justice, proceeded to examine on oath, in the presence and hearing of the said J. M. C., the said G. Courtney, and also one Charles Young, a credible witness, touching the premises, and he produced before me the note or memorandum which had been given by the said J. M. C. upon the pledging of the said gun, according to the direction of the act of parliament in such case, &c., and proved a tender of the principal money due, and all profit thereon, to have been made as aforesaid to the said J. M. C., within the said space of one year after the *200] pledging of the said gun, whereupon the said J. M. C. stated that the said gun had been destroyed by fire on his premises: and whereas, upon due consideration had thereof, it appeared to me, the said justice, that the said gun had been lost by the said J. M. C., and I did thereupon, by a certain order

under my hand and seal, bearing date the 2d day of October, &c., allow and award the sum of 37. and 9s., to be a reasonable satisfaction to the said G. Courtney, for or in respect of the said gun, and did order the said J. M. C. forthwith to pay the said sum of 37. and 9s. to the said G. Courtney, according to the form of the statute, &c. : and whereas it appeareth to me, the said justice, on the oath of the said G. Courtney, that the said J. M. C. having had due notice of my said order, hath unlawfully neglected and refused to pay the said sum of 37. and 9s. to the said G. Courtney as a satisfaction for and in respect of the said gun these are therefore to will and require you, the said constables and peace officers, forthwith to apprehend and convey the said J. M. C. to the said House of correction; and you, the said governor of the said House of Correction, are hereby authorized and required to receive the said J. M. C. into your custody in the said House of Correction, and him therein safely to keep without bail or mainprize, until he shall pay the said sum of 31. and 9s., the amount of satisfaction which I, the said justice, have adjudged to be reasonable for the value of the said 'gun so lost as aforesaid to the said G. Courtney, or be otherwise discharged by due course of law. Given," &c.

Sir James Scarlett, and Follett, now moved that the party should be discharged. This is a commitment under the pawnbrokers' act, 39 & 40 G. 3, c. 99. The sections relied upon on the other side will be the fourteenth (a) and twenty-fourth. By the fourteenth, the justice is authorized, in a [*201 particular event, to commit the party who took the pawn. But it is a general rule, that a commitment in execution, to be valid, must be preceded by a conviction; Rex v. Rhodes, 4 T. R. 220; it should appear that both [*202 sides were heard, and that there was a regular adjudication. This clause expressly speaks of the county or "place wherein the offender shall reside or be convicted;" and in section 35, an appeal is given to persons convicted of any offence punishable by this act but if a party may be committed in execution by an order, the appeal in that case is taken away. Now, upon the present

(a) By sect. 14. If goods be pawned as there mentioned, and if, within one year after such pawning (proof being made by one or more witnesses, and by producing the note or memorandum directed by the act, before any justice, to his satisfaction, of the pawning of such goods within one year, &c.) any such pawner who, at the time of pledging, was the real owner of such goods, his executors, &c., shall tender to the person who lent thereon, his executors, &c., the principal money borrowed thereon, and profit according to the act, and the person who took such goods, &c., in pawn, his executors, &c., shall thereupon, without showing reasonable cause for so doing to his satisfaction of such justice, neglect or refuse to deliver back the goods or chattels so pawned, &c., to the person who borrowed the money thereon, his executors, &c., then on oath made thereof by the pawner, his, &c., or other credible person, any justice for the county, &c., where the person who took the pawn, his, &c., shall dwell, on the application of the borrower, his, &c., is required to cause the person who took, &c., to come before such justice, who is authorized and required to examine on oath the parties themselves, and such other credible person or persons as shall appear before him touching the premises, and if tender of the principal money and profit shall be proved by oath to have been made to the lender. his, &c., within one year, &c., after the pawning, then on payment by the borrower, his, &c., of such principal and profit to the lender, his, &c., and if he or they refuse to accept thereof, on tender thereof made by the borrower, &c., to the lender, &c., before any such justice, such justice shall thereupon, by order under his hand, direct the goods forthwith to be delivered up to the pawner, &c.; and if the lender, his, &c., "shall neglect or refuse to deliver up or make satisfaction for the goods or chattels which shall be so proved to the satisfaction of such justice as aforesaid to have been so pawned, as any such justice as aforesaid shall order and direct, then any such justice shall, and is hereby authorized and required to commit the party so refusing to deliver up or make satisfaction for the same, to the house of correction for the county, &c., wherein the offender shall reside or be convicted, there to remain without bail or mainprize, until he, she, or they shall deliver up the goods or chattels so pawned, and continuing redeemable as aforesaid, according to the order of such justice as aforesaid, or make such satisfaction or compensation as such justice shall adjudge reasonable for the value thereof, to the party or parties entitled to the redemption of such goods or chattels so pawned, and continuing redeemable as aforesaid."