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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 COMPANY

0 to think, these defects imply a failure to intimate the WAUCHOPE.

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,



nounced a decree to this effect : “ The Lords having resumed consideration of this note, and heard counsel EDINBURGH thereon, alter the interlocutor complained against, RAILWAY

COMPANY sustain the pursuer's objection to the accounts, and remit to the Lord Ordinary to proceed accordingly.

do WatchPE. 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


1842. nage on such carriages as other persons should use on EDINBURGH the railway: they had no right to levy a tonnage on RAILWAY

passengers. There is no provision in the Act granting COMPANY

such a tonnage, nor declaring how it shall be ascerWAUCHOPE.

tained ; 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 levi. able 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 con. veying 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


facts; for some years he has received and given 1842. discharges for the duties on the tonnage of goods and EDINBURGH parcels; he now claims, for the first time, a tonnage Railway duty on passengers. His own previous conduct pre- v.

WAUCHOPE. vents him from maintaining this claim; Bramston v. Robins (6) is decisive on this point. There a landlord's receiver allowed the tenant to make a deduction in respect of the payment for land-tax, every year for seventeen years, greater than the landlord was liable to pay, the landlord knowing or having the means of knowing all the facts; and the Court held that he could not afterwards distrain for the amount thus erroneously allowed. The present is stronger than that case against the claim; for here the Respondent had, from the first, the Act of Parliament before him, and acted in his own affairs. His own construction of the Act as to what were his rights under it, is decisive against him.

The Attorney-general and Mr. Kelly, for the Respondent:--The 20th and 85th sections of the 7th Geo. 4 must be construed together. The 20th section gives the Respondent a right to an allowance in respect to everything on which the Appellants could make a charge of tonnage. The 85th section confers on the Appellants the right to a tonnage on every carriage conveying passengers. Whatever, therefore, the Appellants were entitled to take for tonnage under the 85th section, was so taken subject to the right of the Respondent to have an allowance made thereon. It is clear that the Appellants have a right to tonnage on carriages with passengers in them; the right is not confined by the words of the section to carriages that

(6) 4 Bing. 11; and see Andrews v. Hancock, 3 Moore, 278; 1 Brod. & Bing. 37.

On C



1842 are capable of conveying passengers, but to carriages EDINBURGH conveying passengers. The Appellants might weigh

such carriages if they chose; and the circumstance COMPANY

that such a proceeding might be inconvenient, would WAUCHOPE.

not prevent their right from becoming applicable.
The words are in the present form, “carriages con-
veying passengers,” and most clearly point to those
carriages having passengers in them at the time when
the tonnage duty was leviable. The 91st section has
nothing to do with the present question. The right,
therefore, of the Respondent, under the 7 Geo. 4, is
clear; that right was not taken away by the 4 &
5 Will. 4, which merely repeals so much of the pre-
ceding Act as had become inapplicable in consequence
of the altered situation of the company.

Nor is the Respondent's right affected by what he has done up to the time of making this claim. He cannot put an end to a right conferred by Act of Parliament, merely by the non-exercise of it for some years. The case of Bramston v. Robins is not in point with the present. There is a great distinction between the case of a man recovering back money settled in account, and that of a man enforcing a claim which he has through inattention or ignorance suffered to lie dormant.

man reco

Lord Brougham :-Undoubtedly, my Lords, we often feel considerable reason to hesitate in coming to a conclusion as to the construction of a private Act of Parliament, arising from the somewhat careless way in which Acts of this sort, as well as some other Acts, are framed. But I must, on the whole, say that I think the construction put on this Act in the Court below is the sound one; namely, that one halfpenny per ton is to be taken on all goods and articles upon

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