1851. BLAIR v. JONES. SPINKS had obtained a rule in this case, calling on the plaintiff to shew cause why the taxation of the costs of the reference in this case should not be referred back to the Master. It appeared by the affidavits that, the cause and all matters in difference having been referred to certain arbitrators, an award had been made by them, but that the matters had been referred back to the arbitrators by the Court, on the ground of certain defects in the award. The arbitrators heard fresh evidence, and made a second award; and the plaintiff, on taxation of costs before the Master, made an item of charge against the defendant of 671. 7s. 6d., for payment to the arbitrators in respect of the first award. This was objected to on the part of the defendant, on the ground that the first award was altogether fruitless. The Master allowed the item. The arbitrators had not stated the particulars of the charges of the arbitration. Mellish now shewed cause.—If the first award had been set aside as void, the defendant's objection to the payment of these costs might have some weight. But the award having been referred back to the arbitrators, they were justified in considering it unnecessary to rehear the evidence, for the purpose of arriving at an opinion upon the case submitted to them. [Alderson, B.-The defendant will contend that, with reference to the second award, a certain portion of these charges was absolutely thrown away, as, for example, the expense of the stamps, and of such other matters as were connected with the execution of the first award. As between the parties, the payment of these costs should be divided equally between them. The Master, therefore, ought not to have allowed costs of that description to the plaintiff.] June 10. Where an award is refer red back to the arbitrators on the ground of defect, and the arbitrator hears fresh evidence and makes a new award, the costs of such strictly connect matters as are ed with the abortive award are to be borne equally by the respective par ties to the award. 1851. BLAIR JONES. Spinks, in support of the rule, was not called upon. PER CURIAM (a).-The rule must be absolute, to refer the matter back to the Master, that he may reconsider the question with reference to the intimation of opinion thrown out by the Court. Rule absolute. (a) Pollock, C. B., Alderson, B., Platt, B., and Martin, B. June 17. The Bristol and PARKER V. THE BRISTOL AND EXETER RAILWAY COMPANY. DEBT for money had and received.-Plea, never inExeter Railway debted; and issue thereon. and the Great Western Rail way are con- but are worked for the carriage bills issued by At the trial, before Parke, B., at the Middlesex Sittings in the present Term, it appeared, that the plaintiff was an extensive carrier, and conveyed goods along the Great Western and the Bristol and Exeter Railways. The latter, a line in continuation of the Great Western Railway, was for many years worked by the Great Western Railway Company under a lease; but, at the period when the alleged causes of action arose, it was worked by its own proprietors. According to the scale bill issued at the various staeach of the Com- tions upon both lines, and purporting to refer to both, the panies, certain rate of carriage for a certain class of goods was fixed at sums were spe cified as the charges for the carriage of goods, where the goods were to be collected and delivered by the Companies; and a smaller sum was specified as chargeable, where the goods were to be collected and delivered by the parties themselves. The plaintiff, a carrier, sent certain goods which he had undertaken to collect and deliver on his own account by the Bristol and Exeter Railway Company, to be carried upon both lines of railway, but he objected to the charges as being excessive, and paid the whole amount claimed under protest:-Held, first, that he was entitled to recover back the amount so paid in excess of what was a fair and reasonable charge in an action of money had and received, although he had not made any tender of any specific sum as a fair and reasonable charge; and, secondly, that the whole sum so paid in excess was recoverable from the Bristol and Exeter Railway Company, although they had received a portion of it as agents only of the Great Western Railway Company. 21. 6s. 3d. per ton from Paddington to Taunton, which included the collection and delivery of the goods by the servants or agents of the respective Railway Companies. This bill contained a foot note, that an allowance of 2s. 6d. per ton for collection and delivery in London, and 1s. per ton for collection and delivery at Taunton, would be made to parties undertaking those duties themselves. The plaintiff was in the habit of collecting and delivering goods on his own account, making the amount therefore claimed from him by the Company 21. 2s. 9d. per ton. By their Acts of Parliament the respective Companies were bound to charge all persons equally under the same circumstances. The plaintiff demanded a larger deduction than that allowed in the scale bill, viz. 5s. a ton for collection and delivery in London, and 2s. 6d. for collection and delivery at Taunton, and had invariably paid the amount demanded by the Company under protest. On the part of the defendants, it was objected, first, that the action would not lie; and secondly, that, at all events, so much of the excess of payment as related to the carriage of the goods upon the line of the Great Western, could not be recovered from the defendants, who acted merely as agents for the other Company. The learned Judge was of opinion that the plaintiff was entitled to maintain the action for such amount as the jury should think had been overpaid by him, but reserved leave to the defendants to move to enter a nonsuit, or to reduce the damages accordingly. A verdict was found for the plaintiff for 91. Os. 4d. In the present Term (June 14) Kinglake, Serjt., moved accordingly.-First, it is submitted, that, under the circumstances of the case, the action for money had and received does not lie. The facts here differ materially from those in Parker v. The Great Western Railway Company (a). There the defendants refused (a) 7 M. & Gr. 253. 1851. PARKER V. BRISTOL AND 1851. PARKER v. BRISTOL AND to carry the plaintiff's goods without the payment of a certain sum; and thereupon he tendered a particular sum which he thought reasonable in amount, and upon their refusal to take it he paid the whole amount demanded by them, and afterwards brought an action for money had and received, to recover the overcharge. The Court there held, that, as the Acts of Parliament which regulated the Company imposed the duty upon them of carrying the goods of the public at reasonable rates, and as the payments so made were not voluntary, but were made in order to induce the Company to do that which they were bound to do without requiring such payments, the action was maintainable. But here the plaintiff delivers the goods to the Company to be carried by them. He pays the whole amount under protest, without tendering the sum which may be reasonable, and then he repudiates the transaction by bringing this action against the Company. If the payment so made by the plaintiff was a voluntary payment, he cannot now recover back any portion of it. The decision in Parker v. The Great Western Railway Company (a) is rested expressly upon the ground, that the plaintiff there was acting under coercion. [Parke, B.-At the trial, I acted upon the authority of Ashmole v. Wainwright (b), in which the case of Astley v. Reynolds (c) came under the consideration of the Court of Queen's Bench, where the plaintiff had upon two occasions tendered the sum he thought reasonable, before he brought his action. But the Court of Queen's Bench expressly held in Ashmole v. Wainwright, that a tender is unnecessary; and the Court said, that the Company was bound to tell the plaintiff what the proper charges were. I acted upon that decision in the present case, as I thought that, if the Company made an unreasonable charge, and the plaintiff paid his money under protest, the Company were bound to return him the overplus. Pollock, C. B.— (a) 7 M. & Gr. 253. (b) 2 Q. B. 837. (c) 2 Str. 915. The decision in Ashmole v. Wainwright is that of a Court of co-ordinate jurisdiction, and therefore I do not feel myself at liberty to express that opinion I might be inclined to give with reference to it, if the question were before a Court of Error. I certainly do not think that Ashmole v. Wainwright can be rested upon the authority of Astley v. Reynolds.] If this payment is to be taken as an involuntary payment, it must be on the ground that the plaintiff's goods were under duress. But it does not appear that the goods were under duress. [Parke, B.-The mere duress of the goods does not avoid a contract; but where a person has to pay a certain sum in order to recover his goods, such payment is involuntary.] In Ashmole v. Wainwright there was a distinct refusal on the part of the defendants to deliver up the plaintiff's goods to him except upon payment of a specified sum. Secondly. The plaintiff is not entitled to recover back that portion of the sum paid which has reference to the carriage of the goods between Paddington and Bristol, for the defendants, as to that amount, received it as the agents of The Great Western Railway Company: Bamford v. Shuttleworth (a). [Parke, B.—In Snowden v. Davis (b), Lord Mansfield, C. J., laid it down, that where money is paid by a party under terror of process to redeem his goods, not with an intent that it should be delivered over to any one in particular, the party who receives the money, though acting in the character of agent to a third party, is bound to refund the money; and Sadler v. Evans and several other cases are there cited. That principle has been acted upon in Atlee v. Backhouse (c), Spry v. Emperor (d), and in other cases. There is an implied undertaking on the part of him who receives money improperly, to return it. (a) 11 A. & E. 926. (b) 1 Taunt. 359. (c) 3 M. & W. 633. 1851. PARKER v. BRISTOL AND |