RAILWAY 17. WAUCHOPE. 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 duty on passengers. His own previous conduct prevents him from maintaining this claim; Bramston v. Robins (b) 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 (b) 4 Bing. 11; and see Andrews v. Hancock, 3 Moore, 278; 1 Brod. & Bing. 37. 1842. COMPANY v. WAUCHOPE. are capable of conveying passengers, but to carriages EDINBURGH Conveying passengers. The Appellants might weigh RAILWAY such carriages if they chose; and the circumstance that such a proceeding might be inconvenient, would not prevent their right from becoming applicable. The words are in the present form, "carriages conveying 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 preceding 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. 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 RA 1842. RAILWAY บ. WAUCHOPE. which a tonnage is charged or chargeable under the Act. In the 85th section, we find that every carriage EDINBURGH conveying passengers is to be charged by, or to, or for the company, at a rate not exceeding sixpence per ton per mile. This is, therefore, a tonnage. Then the question is, whether this tonnage is to be taken on carriages only, or on carriages conveying passengers. In my opinion, the more natural and sound construction is, that the tonnage is to be taken upon carriages conveying passengers, and that it will not be accurate to hold that the words "conveying passengers" are merely descriptive of the kind of carriage, but we must say that they are indicative of the matters and things which are to be subject of weighing, and to be subjected in that respect to a tonnage not exceeding sixpence per ton per mile. I therefore think that a sound construction has been put upon the Act: but for this the company would escape altogether paying anything in respect of passengers, though from them it might derive the greatest part of its revenue. With respect to the objection on the 91st section, it did seem at first to raise a great difficulty; but upon being examined, it does not appear to throw any great obstruction in the way of the interpretation which has been fixed by the Court upon the 85th section. But when we come to look at it, that section appears to have been passed alio intuitu. The rule provided in it appears to apply entirely to the conveyance of goods by carriers using the railway, and is intended to protect the customers of those carriers from a larger charge than twenty pence per ton. It does not apply to the carrying by the company itself of passengers, which indeed the company does not appear to have had the power to carry until after the passing of the Act 4 & 5 Will. 4. It is a great mistake to suppose 1842. EDINBURGH COMPANY V. that a company can do all that it is not prevented from doing; it can only do that which is granted to it. RAILWAY I will only add one word on a point which has been abandoned at this bar, but an idea of the value WAUCHOPE. of which seems to have prevailed in the Court below; namely, that the want of notice in one of the preliminary stages of an Act of Parliament, operates to prevent that Act from affecting the rights of the parties to whom such notice ought to have been given. Such a doctrine is wholly without justification. Lord Cottenham (who presided) :-My Lords, upon the point which has been last adverted to, it is only necessary to say a few words, in order that we may not again have a similar question presented to the consideration of the House. It has been most properly abandoned at the bar here; but upon the papers put before us, it does appear that in the course of the argument in the Court below, an impression did exist that an Act of Parliament might or might not be binding on parties, according as there might or might not be proof that the individual to be affected by it had had notice of the Act while in progress through the two Houses.- [Lord Brougham: That the standing orders for the protection of private rights not having been complied with, the authority of the Act of Parliament itself would be affected.]-There is no foundation for such an idea; but such an impres sion appears to have existed in Scotland, and I express my clear opinion upon it, that no such erroneous idea may exist in future. With regard to the merits of the case upon the first point made by the Appellant, it seems to me that there is no doubt, whatever may be the rule by which the weight of a carriage is to be known, it falls under COMPANY v. WAUCHOPE. the 20th section. If the words are attended to, I am 1842. surprised that any doubt should have existed on the EDINBURGH subject; because the 85th section (which imposes the RAILWAY duty upon the carriages) describes the things to be charged as "other things which shall be carried or conveyed upon the railway," upon which certain rates are fixed. In the enumeration of the things on which a rate is fixed is a carriage, and the 20th section gives Mr. Wauchope the sum of one halfpenny per ton upon all goods and articles on which a tonnage duty is charged or chargeable in virtue of this Act, and which shall pass along any part of the railway within the limits of his land. The sole argument, therefore, in favour of exemption must rest upon proving that that which is in one section called an article, does not come within that description in another. The doubt arises from the mode in which the weight is to be ascertained; and if the 91st section had imposed a toll upon the small parcels as articles described in the 85th section, that would have furnished a very strong argument indeed in behalf of the Appellant; but that section has, I think, no such effect. The terms used are, "sums to be paid for carriages conveying passengers." In all other cases they are described as tolls, dues, &c. on carriages. That, I think, has no reference to the provision in the Act which imposes tolls or duties to be paid as a remuneration to the company for the use of the railway. There is no distinct provision that passengers are to be subject to rate; and if their weight is not to be included in the weight of the carriage, they, or the company in respect of them, would escape altogether without payment, since the 91st section does not apply to this matter. That is a strong reason for supposing that it could not have been intended that |