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the House be sitting or not, should attach him and detain him in custody until he should pay the said sum, and such further costs as their Lordships might order by reason of this application, together with fees, &c.

The petition was referred to the Appeal Committee, who reported that they had considered the same; and in pursvance of their report and recommendation, an order was made, in the terms of the prayer of the petition, for the substituted service.

That service, and a demand of payment of the costs, were accordingly made on the agents; but the costs not being paid, Lady Palmer presented another petition praying an order for the Gentleman Usher of the Black Rod to attach Carter, &c.; but being the last day of the Session, the petition was ordered to stand over for the first day of the then next Session. Nothing further was done therein ; Lady Palmer having, in the meantime, obtained the costs out of the funds of Carter in the Court of Chancery in Ireland, upon application to that Court.

In the case of Callaghan v. Callaghan, ante, p. 374, the Where a parappeal having been dismissed with costs, which the Clerk ty, is served

with the cerAssistant certified at 426 l. 18 s. 11 d., the Respondent's tificate of agent served the Appellant with the certificate of the said costs, and costs, and demanded payment personally; but the same not mand is

1 personal debeing paid, the Respondent presented a petition to the House, made, and he and prayed that the Appellant might be compelled to pay the them

does not pay said sum; and that, for that purpose, the recognisances that House will, were entered into on lodging the appeal might be estreated th

tad on petition of

the party into the Court of Exchequer.

entitled, The House ordered the recognisances to be estreated, and ord

cognisances the Appellant to pay the costs of this application, in addition to be estreatto the said sum of 426 l. 18 s. 11 d.

ed for the payment of costs, together with costs of the petition.

re

1842: March 22.

THE PROPRIETORS of the Edinburgh liomst

burgh}Appellants. and Dalkeith Railway COMPANY - say

John WAUCHOPE, of Edmonstone - Respondent.

of.

Tonnage.. A PRIVATE Act of Parliament made for the construction of a railway Private Act,

gave to W., a landed proprietor, through whose land the railway Construction

was to pass, “ the sum of one halfpenny per ton upon all goods Notice of a

and articles upon which a tonnage duty is charged or chargeable Bill in in virtue of this Act.” The section which empowered the railParliament. way company to levy a tonnage duty contained this clause : “For

every carriage conveying passengers, or goods or parcels not exceeding five cwt.” a sum named. There were other clauses fixing the duty payable for goods, but there was no other which referred to passengers.--Held, affirming the decree of the Court of Session, that the company was empowered to levy a tonnage duty on carriages according to their weight, when containing passengers; and that the sum to be paid to W. must be calculated

on the tonnage so levied. W. had for some years received money on the tonnage levied

on goods and parcels alone.-Held that this did not prevent him from afterwards claiming payment on the tonnage duty on

passengers. A party interested in the subject-matter of a private Act of Par

liament will have his rights affected by its provisions, though it may have been introduced and passed without notice duly given to him.

THE first Act under which the Appellants were formed into a company was passed in the year 1826 (7 Geo. 4, c. xcviii.), for “making a Railway from Edinburgh to the South Side of the River Northesk, near Dalkeith and Newbattle.While this Act was in progress through Parliament, the Respondent, who was a proprietor of lands on the line of the proposed railway, opposed the bill, but finally abandoned his opposition, on being satisfied with certain clauses which were introduced into the bill. The 20th section of the Act provided that the company of pro

was

COMPANY

prietors “ shall pay to the said J. W. (and other 1842. persons therein mentioned), so long as the said railway shall continue to be used through the said lands RAILWAY or grounds of the said J. W., the sum of one half

WAUCHOPE. penny per ton upon all goods and articles upon WA which a tonnage duty is chargeable or charged in virtue of this Act, which shall pass along any part of the said railway standing within the said lands and grounds of the said J. W., except the coals and other minerals, corn and other articles, the produce of the said lands and estate.” The 85th section contained the following provisions; “ It shall be lawful for the company of proprietors from time to time and at all times to ask, demand, take, recover, and receive to and for the use and benefit of the said company, for the tonnage and conveyance of all minerals, goods, wares, merchandises, and other things which shall be carried or conveyed on the said railway, the rates and duties following: For every carriage conveying passengers, or goods or parcels not exceeding five cwt., such sum or sums of money respectively as the said company of proprietors shall from time to time direct and appoint, not exceeding 6 d. per ton per mile.”

Another Act of Parliament (the 4 & 5 W. 4, c. lxxi.) was afterwards applied for and obtained, which repealed some of the provisions of the former Act, extended others, and continued the rest. The 16th section of this new Act recited that whereas certain sums of money in respect of way-leaves had been granted to the Respondent and others, it enacted that the company of proprietors might collect the sums for the way-leaves separately from the rates and duties levied on the main line of the railway, provided that such rates and way-leaves should not exceed the duties authorised by the former and by that Act of

v.

S

VOI

1842.

Parliament. Before the passing of this Act, the EDINBURGH

Leith Branch Railway had been united to the EdinRailway burgh and Dalkeith Railway, and the provisions of its COMPANY

Act were consolidated with those of the new Act, the PE. 29th section of which declared that “the rates and

duties granted by the recited Acts, for and in respect of carriages conveying passengers, shall be, and the same are hereby repealed." The 30th section enacted, to that it shall be lawful for the company of proprietors to demand, receive, and recover to and for the use of the company, and of the proprietors of the Leith Branch Railway respectively, for and in respect of passengers, beasts, cattle, and animals conveyed in carriages upon the said railway and branches, the fol. lowing tolls : For every person conveyed in and upon such carriage, any sum not exceeding 3 d. per mile." The 33d section empowered the company of proprietors to provide and establish and make charges for conveyance, in addition to the tolls. The 37th section authorised the officers of the company to weigh all carriages and waggons passing on the railways, as often as to them should appear necessary for determining the weight of goods carried in such waggons or carriages.

It appeared that, in the first instance, the proprietors had proposed to make the railway, and to reimburse themselves by the tolls payable in respect of carriages that other persons might run upon it; but after some time it was found that this scheme was extremely unprofitable, and then the proprietors built carriages on their own account, and ran them along the line. The Respondent had received sums of money at different intervals for years from the Appellants, in respect of goods and articles conveyed in carriages on that part of the line that ran through his lands, but in 1835 he claimed a way-leave on the tonnage of the

RAILWAY

(carriages when loaded with passengers. This demand 1842 was resisted by the Appellants, and the Respondent EDINBURGH instituted a suit, founding his claim on the 20th and RA

COMPANY 85th sections of the 7 Geo. 4. The Appellants con- .

WAUCHOPE. tested his right, insisting that it must be confined to an allowance on goods and articles conveyed along the line. They relied first on the terms of the Act 7 Geo. 4, which they contended did not grant to the Respondent any allowance in respect of passengers conveyed by the carriages; and then argued that if such allowance was granted by that Act, still as that Act was repealed by the 4 & 5 W. 4, c. lxxi., such grant was at an end. And they further contended that the Respondent, by accepting for such a time payment in respect of goods and parcels only, had himself put on the earlier Act a construction fatal to his present claim. The Respondent insisted that he was entitled to an allowance on all the tonnage charged or chargeable by the company in respect of carriages conveying either passengers or goods, and passing through his lands; that the right conferred by the 7 Geo. 4 was not affected by the 4 & 5 W. 4; or that if it was, then that that latter Act could not be made applicable to him, for that it was a private Act affecting a vested right, and had been introduced without due notice of its introduction being served on him.

On the 16th of June 1837, the Lord Ordinary pronounced an interlocutor in favour of the claim of the Respondent; and in his subjoined note expressed himself on the question of the effect of want of notice upon the operation of the second Act, in these terms: “ The Lord Ordinary is by no means satisfied that due parliamentary notice was given to the pursuer (the Respondent) previous to the introduction of this last Act: undoubtedly no notice VOL. VIII.

3 B

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