1842. EDINBURGH v. Parliament. Before the passing of this Act, the Leith Branch Railway had been united to the Edinburgh and Dalkeith Railway, and the provisions of its Act were consolidated with those of the new Act, the WAUCHOPE. 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granted by the recited Acts, for and in respect of carriages conveying passengers, shall be, and the same are hereby repealed."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, 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 following 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 1842. RAILWAY V. WAUCHOPE. carriages when loaded with passengers. This demand was resisted by the Appellants, and the Respondent EDINBURGH instituted a suit, founding his claim on the 20th and 85th sections of the 7 Geo. 4. The Appellants contested 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conveyed by the carriages; and then argued that if such allowance was granted by that Act, still as that Act was repealed by the 4 & 5 W. 4, c. lxxi., such grant was at an end.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 allow ance 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 3 B VOL. VIII. COMPANY v. WAUCHOPE. 1842. was given to him personally, nor did the public EDINBURGH notice announce any intention to take away his exRAILWAY isting rights. If, as the Lord Ordinary is disposed to think, these defects imply a failure to intimate the real design in view, he should be strongly inclined to hold, in conformity with the principles of the case of Donald (a), that rights previously established could not be taken away by a private Act, of which due notice was not given to the party meant to be injured.” The Lord Ordinary did not, however, put his judgment on this ground; but having thus intimated his opinion, added that he did not think the two Acts were inconsistent with each other, and consequently did not think himself bound to decide this particular point. The Appellants appealed against this interlocutor, which was affirmed by a decree of the Court of Session, on the 14th of December 1837. The Appellants were by these decrees ordered to put in accounts of the sums received by them, and on which they were bound to make allowance to the Respondent. These accounts having been put in, the case was further proceeded with, and on the 2d of March 1839 the Lord Ordinary pronounced another interlocutor, declaring that "having heard counsel for the parties, and considered the accounts lodged by the defenders (the Appellants), and the objections thereto, finds that, in ascertaining what is due to the pursuer for his way-leave on the carriages conveying passengers, the tonnage duty is to be taken as laid on the carriages, and not on the passengers also: finds the pursuer liable on this part of the discussion." The Respondent appealed against this interlocutor, on the ground that it excluded the tonnage on the passengers Upon the 4th of July 1839, the Inner House pro(a) 27 November 1832, COMPANY V. WAUCHOPE. nounced a decree to this effect: "The Lords having 1842. resumed consideration of this note, and heard counsel EDINBURGH thereon, alter the interlocutor complained against, RAILWAY sustain the pursuer's objection to the accounts, and remit to the Lord Ordinary to proceed accordingly. Find the defenders liable in the expenses." Fresh accounts, calculated in the manner required by the Respondent, were then put in; and the Lord Ordinary, on the 18th of March 1840, pronounced an interlocutor approving of these accounts framed under the directions of the decree of the 4th of July 1839, and finding the defenders liable in expenses since that date. The Appellants appealed against this interlocutor, but the Inner House adhered to it, in a decree pronounced on the 21st of May 1840. The present appeal was brought against the several interlocutors and decrees of 16th June and 14th December 1837, of the 4th of July 1839, and of the 21st May 1840. The Attorney-general, shortly after the opening of the case, abandoned, on the part of the Respondent, any argument as to the want of notice operating to defeat the provisions of the 4 & 5 Will. 4. The Solicitor-general and Mr. Willmore, for the Appellants:-There is nothing in the first of these Acts that gives the Respondent a right to have an allowance on the tonnage of the carriages when filled with passengers. The Appellants have no power to levy a tonnage in respect of the passengers, but only on the carriages which convey the passengers. The right of tonnage is confined to the carriages themselves. At the time the first Act was passed the Appellants only possessed the power of levying a ton RAILWAY V. WAUCHOPE, 1842. nage on such carriages as other persons should use on EDINBURGH the railway: they had no right to levy a tonnage on passengers. There is no provision in the Act granting such a tonnage, nor declaring how it shall be ascertained; it was, in fact, never thought of: the inconvenience of levying such a tonnage is a sufficient reason why it was never provided for, and fully explains the silence of the Legislature on the subject. The tonnage was confined to the carriages and to the goods carried; to things that could be weighed and have their tonnage ascertained in the usual way. But the duties thus given, whatever they were, have been taken away by the 4 & 5 Will. 4; and this latter Act, in declaring what the company shall be entitled to receive, never once makes the weight of the passengers carried the subject of a tonnage rate. The duty leviable on carriages conveying passengers, goods, or parcels, is given by the 85th section of the earlier Act; the duty on small parcels themselves is distinctly provided for in the 91st section. If the 85th section is to be taken to include the duty on small parcels, then the duty leviable for small parcels would be twofold, and would be leviable under two distinct sections of the Act. That cannot be so with respect to small parcels, nor can it be so with respect to passengers. The two cases are exactly alike. On the other hand, if the rate fixed in the 85th section on the carriages conveying parcels is to be taken as exclusive of the parcels conveyed in them, it must be equally exclusive of the passengers. Then it follows that there is no rate of tonnage on the passengers; for unless provided for in that section, it is not imposed in any other part of the Act. Then as to the conduct of the parties: the Respondent here had the means of knowing all the |