Opinion
04-30-1811
Ashley v. Cornwell
In the year 1801, John Cornwell instituted an action of assumpsit in the county court of Norfolk, against Warren Ashley, who pleaded the general issue; and (the cause coming on to be tried at the June session, 1804) offered in evidence a writing executed by the plaintiff and himself, altering and explaining a former agreement for the affreightment of a vessel. The plaintiff objected to the reception of that writing; because (as he alleged) it was not stamped according to the act of congress, entitled " An act laying duties on stamped vellum, parchment and paper," passed the 6th of July, 1797. The court sustained the objection, and the defendant filed a bill of exceptions.
Verdict and judgment for the plaintiff, which, upon appeal, was affirmed by the district court of Suffolk; whereupon the defendant obtained a writ of supersedeas from a judge of this court; stating, in his petition, that the act of congress did not require such a writing as that offered in evidence to be stamped; and " the act being no longer in force, the provisions thereof ceased."
Judgment reversed.
Judge Cabell. Judge Roane. Judges Brooke and Fleming concurred.
OPINION
The cause was argued on both points, by Wickham, for the plaintiff in error, and George K. Taylor, for the defendant, but decided by the court here, upon the first point only, which is fully discussed in the following opinions, delivered on Friday, the 3d of May.
JUDGE CABELL. The act of congress having laid a tax, by way of stamp, of one dollar on every charter-party, proceeds afterwards to declare " that every deed, instrument, note, memorandum, letters, or other writing between the captain or master, or owner of any ship or vessel, and any merchant, trader, or other person, in respect to the hire or freight of such ship or vessel, for conveyance of any money, goods, wares, merchandise or effects, laden, or to be laden, on board of such ship or vessel, shall be deemed and adjudged to be a charter-party."
It is essential to the nature of a charter-party that it should embrace the whole hire or freight of a vessel, and, of course, there cannot be two subsisting charter-parties, at the same time, for the same voyage. Any construction of the act of congress, therefore, that should multiply taxes on the same contract for the affreightment of a vessel, must be contrary to the true intent and meaning of that act, which imposes but one tax on any one entire contract, however various may be its modifications. It was not intended to change the substantial nature of a charter-party, but (for the purpose of preventing all doubts or evasions) to declare that every contract for the affreightment of a vessel shall be deemed and taken to be a charter-party, and, of course, subject to the tax; whether that contract assumed the form of a deed, note, memorandum, letter, or other writing. The application of these principles will afford a ready solution of the first question made in this case, whether the writing excluded by the county court from going to the jury as evidence, was such a writing as, under the act of congress, was required to be stamped. Is it a charter-party? Most certainly it is not, of itself, a new, distinct substantive contract for the affreightment of a vessel. It is silent as to the port of departure, and of destination, and as to the time of commencing or completing the voyage. But it refers to a former agreement, of which it is expressly a mere modification, both together forming one entire contract; and, of course, no new tax was necessary. I think, therefore, that the county court erred in excluding it from the jury; and (without giving any opinion on the other point) I am, on this ground, for reversing both judgments, and remanding the cause to the county court, with instructions to admit the evidence.
JUDGE ROANE. A charter-party is defined to be an agreement by indenture whereby the owners, & c. of a ship, and the freighters covenant with each other that such a ship shall take in such a lading, and carry the same to such a place, & c. in consideration of which the freighter is to pay so much. The act of congress imposing a tax, in general terms, upon " any charter-party," must be taken to refer to the law-merchant to ascertain what a charter-party is. No difficulty could, therefore, occur in this case, but from the fifth section of the said act, the expressions of which have been stated, and are very broad. As, however, the clause imposing the tax refers to the common law to ascertain what a charter-party is, so this provision is only to be taken to dispense with form in relation to the instrument; it cannot be taken to dispense with the fundamental criterion as to charter-parties, namely, the cargo, the price, and the place to and from which the cargo is to be transported. The object of the law was to prevent evasions of the tax by varying the forms of charter-parties, but not to extend to all alterations whatever, which might be made in charter-parties after they have been executed: and, if the paper in question be deemed to come within the act, it would be difficult to exclude from its operation any memorandum or agreement, however trivial or unimportant, by which any of the provisions of a charter-party should be subsequently varied.
4 Bac. Abr. (Gwill. edit.) 626.
On this ground, then, I think the district court erred in its opinion. It is unnecessary to decide the other point; but my present impressions are, that under the repealing act of 1801, c. 19, the original act was continued, quoad the present subject. I infer this, both from the provision in the third section of the act, and from the general principles of construction in relation to this subject. These principles were much canvassed in the special court of appeals in June, 1793, in a case between Martin and Payne, which is quoted and relied on by myself in the case of Elliott v. Lyell, 3 Call 268. While I refer to that case as containing my sentiments on the general topic, I must repeat, however, that I have not deemed it necessary to apply them to the case before us.
Laws U.S. vol. 6, p. 58.
I am of opinion that the judgment be reversed, and the cause remanded, with directions that the superior court, on the next trial, admit the paper, mentioned in the bill of exceptions, to be given in evidence to the jury.
CONCUR BY: BROOKE; FLEMING
CONCUR
JUDGE BROOKE. I concur in the opinion delivered. I think the 5th section of the act to congress alluded to, comprehends only entire contracts in writing, in its definition of a charter-party, and does not include the writing stated in the bill of exceptions in this case. I think it unnecessary to say any thing on the other point. Both the judgments must be reversed, and the cause sent back for further proceedings.
JUDGE FLEMING concurred; and the following was entered as the unanimous opinion of the court:
Both judgments reversed, verdict set aside, and cause remanded to the county court for a new trial to be had therein, " on which the court is to admit the paper mentioned in the bill of exceptions, and rejected by the courts below because not written on stamped paper, to be given in evidence."