Edwards and Another, Assignees of Richard Parker, a Bankrupt, v The Great Western Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 31 May 1852 |
| Date | 31 May 1852 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 603
IN THE COURT OF COMMON PLEAS
S. C. 21 L. J. C. P. 72. Sutton v. Great Western Railway, 1869, L. R. 4 H. L. 241.
[588] edwards and another, Assignees of Richard Parker, a Bankrupt, v. the great western railway company. Nov. 15, 1851. [S. C. 21 L. J. C. P. 72. Sutton v. Great Western Railway, 1869, L. R. 4 H. L. 241.] 1. The Great Western Railway Company, by its act of incorporation, 5 & 6 W. 4, c. cvii., was impowered to charge certain rates and tolls for the use of their railway and the carriage of passengers and goods thereon. By a subsequent ace, 2 Viet, c. xxvii., s. 24, it was provided that those rates and tolls should be at all times charged equally to all persons, and after the same rate per mile, or per ton per mile, 604 EDWARDS V. THE GREAT WESTERN RAILWAY COMPANY 11 C.B.5&. in respect of all passengers, and of all goods, &c., of a like description, and conveyed or propelled by a like carriage or engine, passing on the same portion of the line; and that no reduction or advance should be made, either directly or indirectly, in favour of or against any particular company or person travelling upon or using the same portion of the railway.-By the 7 & 8 Viet. c. iii., s. 48, the last-mentioned provision was repealed, and in terms re-enacted by s. 49; and by s. 50 it was enacted that it should be lawful for the company, whenever they should act as carriers, or should provide power or carriages for the conveyance of passengers, goods, &c., to charge for such power and carriages such sum (not exceeding certain limits), and that either per ton, or per mile, or by bulk, measure, number, or admeasurement, or by fixed charges, as they should think expedient: provided, that, in whatever way the charges were made, they should be made equally to all passengers, and to all persons, in respect of all goods, &c., of a like description and quality, and conveyed in or propelled by a like carriage or engine, pa-sing only over the same portion of, and over the same distance along, the i ailway, and under the like circumstances; and that no reduction or advance in any of such charges should be made partially, either directly or indirectly, in favour of or against any particular company or person:-Held, that the fact of the person sending the goods to be conveyed along the railway being a carrier, did not constitute such a dissimilarity of circumstances, as to justify a difference of charge as between him and the rest of the public.-2. By the 171st section of the 5 & 6 W. 4, c. cvii., the company were authorised to fix the sum to be charged in respect of small parcels (not exceeding 500 Ibs. weight) as to them should seem proper: provided, that that provision should not extend to articles, matters, or things sent in large aggregate quantities, although made up of separate and distinct parcels, such as bags of sugar, coffee, &c., but only to single parcels, unconnected with parcels of a like nature, which might be sent upon the railway at the same time.-The company issued "scale-bills," specifying in classes the charges to be made for carriage,-each class containing various kinds of goods; and at the end a "miscellaneous class," comprising goods "not being aggregate of one class or kind," for which a higher1 tonnage-rate was exacted, and also an additional charge of 2d. per package:-Held, that the company were not .justified in charging under the "miscellaneous class," goods which were aggregate of several kinds, but all contained in one class.-3. Held also, that the carrier who brought the goods to, and received them from the company at the end of the journey, was to be treated as the consignee, without reference to the ultimate destination of the goods.-4. Held also, that the carrier was not entitled to any allowance in respect of assistance in the loading, unloading, or weighing, given by his men to the company, voluntarily, or for the carrier's own convenience.-5. The company being under an agreement with one Kent to make him an allowance of 10 per cent, upon the sums paid by him for carriage of g^ods, in consideration of services rendered by him, and having discontinued that allowance in consequence of a former decision of this court, Kent sued them for their breach of contract, and they compromised that action and paid him 5001. to cancel the agreement:-Held, that this did not constitute an inequality of charge as between Kent and other carriers.-6. The plaintiff having, after notice of action, served the company with a written demand of interest under the statute 3 & 4 W. 4, c. 42, s. 28:-Held, that the arbitrator, under a submission of " all matters in difference," might award the plaintiff interest, notwithstanding the notice of action did not contain a demand of interest; and, further, that, assuming a notice of action to have been necessary, the want or insufficiency of such notice could not be taken advantage of, since the 5 & 6 Viet. c. 97, s. 3, unless pleaded specially. This was an action of debt. The declaration stated that the defendants were indebted to Parker, before he became a bankrupt, in 10,0001., for money received [589] by them for his use, and for money found due from them to him on an account stated. The defendants pleaded never indebted, " by statute." The cause came on to be tried before Wilde, C. J., at the sittings for London after Michaelmas Term, 1849, when a verdict was entered for the plaintiffs by consent, debt 10,0001., damages 20001., costs 40s., subject to a special case, to be settled by an arbitrator, who, in the event of the court deciding in favour of the plaintiffs, was 11 C.B.590. EDWARDS V. THE GREAT WESTERN RAILWAY COMPANY 605 impowered to direct for what amount the verdict should be entered, and to whom the cause and all matters in difference between the said parties were referred. The arbitrator stated the following case :- The particulars of demand stated that the action was brought to recover 63201. 7s. 7d. for moneys overcharged by, and paid to, the defendants, by Parker, and discounts due and refused to be allowed by the defendants to Parker, upon or in respect of the carriage of certain goods carried by the defendants for Parker between the months of May, 1844, and May, 1846, and before he became bankrupt,-the full particulars whereof were contained in a notice of action served upon the secretary of the defendants before the commencement of the suit, and in certain books or accounts which accompanied and were delivered with such notice, and that the plaintiffs [590] would also claim interest on such moneys at 51. per cent, per annum from the respective times when the same were paid, until repayment thereof. Parker, the bankrupt, during the times hereinafter mentioned or referred to, was a common carrier, having his principal place of business at the New Inn Yard, Old Bailey, London, and was in the habit of carrying goods for hire between that place and various places in the West of England, employing the Great Western Railway Company, for that purpose, to carry the goods on their railway for so much of the journey as might be convenient to him, and performing the rest of the journey, that is to say, between the company's stations and the place where he first received, or finally delivered, the goods, by his own agents. All the goods of Parker, mentioned in this case, were delivered by him to the company at one of their stations, before being carried by them; and, after having been carried by them, were received by Parker, or his agent, from them, also at one of their stations. The defendants are the Great Western Eailway Company mentioned in and incorporated by the 5 & 6 W. 4, c. cvii., which received the royal assent on 31st August, 1835. Section 163 gave all persons liberty to pass along and upon and to use the Great Western Eailway, with carriages properly constructed, on payment of certain rates and tolls, not exceeding the amounts mentioned in the two following sections. Section 166 impowered the company to provide locomotive or stationary engines, or other power, for the drawing or propelling of any articles, matters, or things, persons, cattle, or animals, upon the said railway, and also along and upon any other railway communicating therewith ; and to receive, demand, and recover such sum of money, for the use of such engines or other [591] power, as the said company should think proper, in addition to the several other rates, tolls, or sums by that act authorised to be taken. Section 167 authorised the company, if they should think proper, to use and employ locomotive engines, or other moving power, and, in carriages or waggons drawn or propelled thereby, to convey upon the said railway, and also along and upon any other railway communicating therewith, all such passengers, cattle, and other animals, goods, wares, and merchandise, articles, matters and things, as should be offered to them for that purpose, and (with certain limits to the charge for the conveyance of passengers) to make such reasonable charges for such conveyance as they might from time to time determine upon, in addition to the several rates or tolls by that act authorised to be taken. Section 171 enacted, that it should be lawful for the company from time to time to make such orders for fixing, and by such orders to fix, the sum to be charged by the company in respect to small parcels (not exceeding 500 Ibs. weight each), as to them should seem proper: provided always, that the provision thereinbefore contained should not extend to articles, matters, and things, sent in large aggregate quantities, although made up of separate and distinct parcels, such as bags of sugar, coffee, meal, and the like, but only to single parcels, unconnected with parcels of a like nature, which might be sent upon the railway at the same time. Section 174 enacted, that...
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