Kent v The Great Western Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1846 |
| Date | 23 November 1846 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 286
IN THE COURT OF COMMON PLEAS
S. C. 4 D. & L. 481; 4 Railw. Cas. 699; 16 L. J. C. P. 72. Commented on and distinguished, Garton v. Great Western Railway, 1859, El. Bl. & El. 849.
286 KENT V. THE GEE AT WESTERN RAILWAY CO. 30. B.715. kent v. the great western eailway company. Nov. 23, 1846. [S. C. 4 D. & L. 481; 4 Bailw. Cas. 699; 16 L. J. C. P. 72. Commented on and distinguished, Gartonv. Great Western Railway, 185.9, El. Bl. & El. 849.] Ey a railway act it was enacted, that no action should be brought for anything done or omitted to be done in pursuance of the act, or in the execution of the powers or authorities given by the act, unless twenty days' previous notice in writing should be given. The company having, contrary to the provisions of the act, made excessive charges for the carriage of goods, and claimed and received the amount of such charges from the plaintiff:-Held, that in an action for money had and received brought to recover back the sums so extorted, the company were entitled to a notice of action.-The sum indorsed on the writ for costs was 21. 5s, only. On taxation, the master allowed 1331. 12s. 2d. costs in respect of the notice of action; the only objection urged before him being, that the plaintiff was not entitled to any costs incurred prior to the issuing of the writ, no exception being taken as to their amount. The allowance of costs for the notice of action was held to be proper; and the court refused to enter upon the question of amount. This was an action of assumpsit for money had and received, brought to recover 6501. for alleged overcharges demanded and taken by the Great Western Eailway Company from the plaintiff, a carrier between London and Abingdon. Before the commencement of the action, the plaintiff caused the defendants to be served with a notice of action under the 223rd section of the 5 & 6 W. 4, c. cvii. The notice referred to nine several books of account delivered therewith, containing minute details of the alleged overcharges. The writ of summons, which was sued out on the 25th of June, 1845, was indorsed for 6501. debt, and 21. 5s. costs. [715] The declaration was delivered on the 12th of July, 1845, and with it particulars of demand, as follows :- "This action is brought to recover of the said company the following items of claim, viz.:- " To amount of overcharges made by the company to the plaintiff, and paid by him to them, for the carriage of goods by the Great Western Eailway Company, between the 1st of October, 1842, and April the 30th, 1844, the full particulars of which, with the dates and items, have already been delivered to the company, in the plaintiff's notice of action, and in four books of account therein referred to, and respectively marked 0. No. 1, O. No. 2, 0. No. 3, and 0. No. 4. The plaintiff claims for these overcharges, 1751. 7s. 3d. " To amount of further overcharges made by the company to the plaintiff, and paid by him, to them for the carriage of goods on the lines of railway, worked by the company, between May the 1st, 1844, and January the 31st, 1845, the full particulars of which, with the dates and items, have already been delivered to the company, in the plaintiff's notice of action, and in five books of account therein referred to, and marked respectively K. No. 1, K. No. 2, K. No. 3, K. No. 4, and K. No. 5. The plaintiff claims, for these overcharges, 2641. 8s. 4d. "To an allowance or discount of 10 per cent, on the company's charges, to the plaintiff, for goods carried for the plaintiff on .the said lines of railway between May the 1st, 1844, and the 31st of January, 1845, being the same allowance of 10 per cent, mentioned in an agreement made by the company with the plaintiff, which is set forth in the first count of the declaration herein, and the full particulars whereof have also been delivered to the company in the said notice of action, and the said last-mentioned five books of account therein referred to. The plaintiff claims for this allowance 2011. 10s. . " The plaintiff also seeks to recover such other da-[716]-mages as a jury may give for the breach of the agreement set forth in the said first count, and interest at 5 per cent, on the said several sums above mentioned, from the respective times at which the same, or any portions thereof, were paid, until final judgment in this action." On the 21st of July, the defendants took out a summons calling on the plaintiff to shew cause why he should not deliver " a further and better account in writing of the 3C.B.717. KENT V. THE GREAT WESTERN RAILWAY CO, 287 particulars of the plaintiff's demand for which, this action was brought, distinguishing which of the sums in the particulars delivered, were claimed under each count; and why each count should not be limited to different and distinct causes of action." This summons was attended on the 23rd, when Wightman, J., declined...
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