the subpoena required a defendant to appear and answer, the Court had held that, where there were cross-suits, the plaintiff in the original suit was entitled to have an answer to his bill before he put in an answer to the cross-bill. The reason was, that he was the first to require an answer; and if he amended his bill so that the subpoena required an answer to the amended bill on matters introduced posterior to the filing of the cross-bill, the priority was lost.* to answer. Under the new practice, the indorsement on the bill only required the defendant to appear: interrogatories were filed separately, and need not be filed at all. There was, therefore, now a class of suits in which the defendant was required to appear only, and not to answer. It was to be observed that section 19 of the Act 15 & 16 Vict. c. 86, which substituted a concise statement for a cross-bill, reserved the right of priority to an answer in those cases only where the defendant was required Now, where no interrogatories were filed within the time limited by the Order, a defendant might well suppose that he was not to be required to answer, and would be entitled to have an answer to the interrogatories to a cross-bill filed by him before he himself answered the original bill. It was not, however, to be inferred from this that the same would hold in a case where the interrogatories to the original bill, though filed after those to the cross-bill, were filed within the proper time. It might then be reasonably argued that a defendant had no right to suppose that he was not to be required to answer till the proper time had elapsed, but his Honour desired to leave this point undecided. Following the analogy of the old practice, his Honour held that the plaintiff in the cross-suit having been the first to file interrogatories, and so require an answer, was entitled to have his bill answered first. Minute.--Order discharged, with costs. *Note.-See, as to this, Steward v. Roc, 2 P. W ms. 435. Wood, V.-C. 23 FEB. 1864. SOLOMON v. HONYWOOD. Principal and Agent-Misrepresentation. The arrangements for a deed between A and B were negotiated on A's behalf by C, his solicitor. B cannot maintain a bill to have the deed set aside, on the ground that C, knowing material circumstances, concealed the same from him, unless he shows that A, the principal, at the same time had the same knowledge. But the knowledge of the principal would be the knowledge of the agent. This was a bill to set aside an indenture, dated 23rd April, 1859, made under the following circum recovered against the defendant, Robert Honywood, two judgments for sums together amounting to 5, 408. 16s. 9d., and on the same days the judgments were duly registered under the 1 & 2 Vict. c. 110. In the following year the defendant was outlawed, and went to reside on the Continent. On February 20th, 1859, the defendant's elder brother, William Philip Honywood, died, leaving the defendant his heir-atlaw, and the defendant thereupon proceeded, through agents in England, to make negotiations with his creditors, including the plaintiff, and the result, so far as concerns the plaintiff, was the indenture of April 23rd, 1859, the subject of the present suit. At the date of the indenture the defendant was entitled in fee simple to a freehold, but this was of insignificant value, and his position really depended upon his succession to his brother's estates. His brother, at the date of his death, was entitled to the fee simple of certain freeholds, and had believed himself absolutely entitled also to copyholds of very great value, of which, as tenant in tail, he had executed a disentailing assurance dated the 9th of May, 1846. But this assurance had never been enrolled. When, however, this defect first came to the knowledge of the defendant, whether before or after his brother's death, appeared neither from the bill nor from the evidence. The defendant's brother by his will left "all his real estates" away from the defendant, but charged upon them an annuity of 5007. in his favour. But the will was executed only two days before his death, and the defendant at once resolved to dispute probate on the ground of the mental incapacity of the testator. The indenture of the 23rd of April, 1859, was made between the plaintiff and the defendant. It recited that the defendant's brother had died, leaving a will, whereby he had devised an annuity of 500l. to the defendant, but had otherwise disinherited him, and that it was the intention of the defendant, as his heirat-law, forthwith to dispute the will; and the defendant covenanted that if the plaintiff should, within fourteen days, accept 1,8007., and enter up satisfaction of the judgments, then the defendant, if ever he recovered the freehold estates whereof the defendant's brother died seised, and which would have descended to the defendant as heir-at-law if the defendant's brother had died intestate, would pay to the plaintiff' 4,4007. and interest from the date of the indenture, and would, as a security for the payment of the same, convey to the plaintiff the freehold estates, and that meantime the interest of the defendant in the freehold estates should be charged with the principal sum and interest. The deed contained a covenant freehold estate, would give notice to the plaintiff, and that the defendant, upon becoming seised of the also a covenant for further assurance of the freehold estate. The indenture was arranged between the plaintiff and a Mr. Davis, the solicitor of the defenOn the 9th and 12th of July, 1856, the plaintiff had dant; and the bill alleged that the plaintiff was stances: induced to execute the indenture in ignorance of the defendant's title to the copyholds, and upon the representations of Mr. Davis that the defendant had no funds available for satisfying the judgments besides the freehold estates of his brother, the right to which he was disputing. The bill did not charge fraud against Mr. Davis; on the contrary, it alleged that probably the true facts respecting the copyholds were unknown to Mr. Davis at the time, and contained no statement as to whether the facts were known or not to the defendant. But from the statements of Mr. Davis upon cross-examination, it appeared that in the draft of the indenture the words originally stood, "hereditaments and real estate," and that these words had been afterwards struck out, and the words "freehold estates" substituted throughout. The alteration had been made by Mr. Davis, and the plaintiff had at the time consented to it. The suggestion at the bar was, that the alteration was fraudulently made with a view to exempt the copyholds. The evidence for the defendant was to the effect that Davis had only said that the defendant, having been disinherited, was a "hopeless beggar," but that there was an offchance of his upsetting his brother's will, and that the plaintiff had better take a security on this offchance and the 1,8007. paid down. In November, 1859, the defendant disentailed the copyholds, and on the 8th of June, 1861, obtained a decree in a suit in Equity, confirming his right to them, and declaring inoperative the disentailing assurance of his brother. On the 3rd of February, 1860, the defendant consented to the probate of his brother's will, upon an agreement that his brother's widow should pay him, during her widowhood, an annuity of 2007. per annum, to be vested in trustees, so as not to be subject to the defendant's creditors, and that certain of the copyholds should be sold to the brother's widow at a valuation. The plaintiff now filed his bill against the defendant Robert Honywood alone praying that the indenture of the 23rd of April, 1859, might be set aside, and for a declaration that the amount due to the plaintiff was well charged upon the freehold and copyhold heredita ments, and all other hereditaments to which the defendant was or had been seised, and upon the purchase-moneys of such of the copyholds as had been sold. Giffard, Q.C., and Lopes, for the plaintiff. The plaintiff was ignorant of the defendant's posi tion, and executed the deed relying upon the statements of the defendant's agent, which prove to b misrepresentations. The defendant cannot take advantage of these misrepresentations, whether they were fraudulent or not. They cited, Edwards v. McLeay, 2 Swan. 287; Hugenin v. Baseley, 2 W. & T. L. C. 462. Rolt, Q.C., and Hardy, for the defendant. Woon, V.-C. said.-There was no case here made for setting aside the deed. Neither fraud nor mutua! error had been proved. There was no fraud: the bill nowhere alleged that the defendant himself, at the date of the indenture, knew he was entitled to the copyholds; very likely he did not, looking at the shortness of the interval which had elapsed since his brother's death. But the knowledge of the defendant was indispensable for the plaintiff's claim without it, the knowledge of his agent was immaterial. On the other hand, all that the defendant knew would be taken to be known to his agent. Nor was there mutual error. The evidence for the plaintiff failed to show that both sides agreed, the one to give and the other to take all the security which the defendant could offer. The indenture recited the gift to the defendant, under his brother's will, of an annuity of 5007., and also the intention of the defendant to contest the will; nevertheless, in fixing the security, both this annuity and any personal estate of the defendant's brother to which the defendant would become entitled, if he succeeded in upsetting the will, were left untouched. The bill must be dismissed with costs. Trover-Bailor and Bailee-Right to Sell. Plaintiff deposited pictures with defendant as security for a loan for a month. At the end of that time it was agreed the loan should continue, the plaintiff paying 10s. interest per month. At the end of another month defendant wrote to plaintiff demanding by mistake 11. more than was due, and saying if the amount was not paid, he should sell the goods. He sold them :— Held, he had no right to do so till the credit was determined, which had not been done by the letter demanding more than was due. This was an action of trover for the recovery of two pictures, one "The Opera Cloak," the other "The Fireman's Dog," tried before Williams, J. The pictures, it appeared, had been exhibited at Canterbury Hall, and the plaintiff being short of cash got a loan on them of 51. from the defendant, to be paid in a month, 17. being retained for interest. The money was not repaid, and the plaintiff asked for time, which the defendant said he might have, paying him 10s. a month interest. The plaintiff agreed to this, and gave the defendant an order for the delivery of the pictures as security. The defendant got the pictures, sold one, and put up the other in a half-crown raffle, realising about 51. on them, before doing which he sent the plaintiff a notice that unless his claim for 67. 10s. was paid, he should proceed to sell the pictures. The Judge left to the jury, whether the agreement for further time, was (as the plaintiff contended) indefinite, he paying 10s. a month, or whether it was (as the defendant said) for one month only. They found it was indefinite. On which the Judge directed a verdict to be entered for the defendant, giving the plaintiff leave to move. 18 APRIL, 1863. Watkin Williams obtained a rule to enter the verdict for the plaintiff for 201., which sum the jury had found was the value of the pictures. 25 MAY, 1863. Tupper v. Williams, 1 P. W. 261; Bromage v. Vaughan, 9 Q. B. 608; 16 L. J. Q. ERLE, C.J., now delivered the judgment of the Court (Erle, C.J., Williams, Byles, and Keating, JJ.) : In this case the plaintiff sued the defendant in trover for the wrongful sale of two pictures. They had been placed in the defendant's hands by the plaintiff on the occasion of a loan for 51., for which the plaintiff gave the defendant a promissory note at a month, 17. having been deducted for interest in advance. When the note became due on the 3rd of August, 1862, the defendant applied to the plaintiff for the amount, but he requested further time for pay. ment, which the defendant allowed on the terms of 10s. a month being paid for interest. According to the defendant's evidence a single month's time was given, but the plaintiff swore, and the jury believed him, that the extension of time on those terms was indefinite. After the first month's extended time had expired, viz. on September 19, the defendant wrote to the plaintiff to the effect, that unless the amount of his claim was paid he should proceed to sell the pictures in liquidation of it. By mistake, however, he claimed 17. too much by this letter, and it did not November. At that time the pictures were unsold. reach the plaintiff till he returned to London in No further communication took place between him and the defendant till after the defendant had sold them. The plaintiff then tendered the defendant the debt with the stipulated monthly interest, and demanded back the pictures. But the defendant declined to accept the money, on the ground that he had already sold them. On these facts the questions arose whether such sale was unauthorised, inasmuch as the jury found that it was not expressly made a part of the original D. D. Keane showed cause, and Watkin Williams agreement that the defendant should have a power to supported the rule. The following authorities were cited, Pothonier v. Dawson, Holt, N. P. 383; Kemp v. Westbrook, 1 Ves. sen. 278; sell in default of due payment of the note. The Judge at the trial thought that the defendant had authority to sell, inasmuch as the deposit was made as a security for the payment of the debt on a future day certain; Martin v. Reid, 11 C. B. (N. s.) 730; s. c. 31 and the verdict was accordingly entered for the L. J. C. P. 126; defendant. We think that the judgment was right as to this point, on the authority of the cases collected in Ex. Ch. 5 JAN. 1864. } was either to carry from station to station. or to col lect the goods at one terminus and deliver them to the consignees at another. Down to 1858, they charged a sum for carriage including the cost of collecting and delivering: and where the goods were brought to or taken from the station by the parties themselves, a reduction or rebate was made to them by the company. The plaintiffs, Messrs. Baxendale, who are common carriers, collected and delivered their own goods, and took the rebate. In 1858 the company ceased to make the allowance, and thenceforth compelled the plaintiffs to pay the same sum for conveyance from station to station as if the company collected and delivered also. The plaintiff paid the money under protest. They then applied to the Court of Common Pleas for redress under the Railway Traffic Act (17 & 18 Vict. c. 31), and in Rule absolute. Michaelmas Term, 1858, obtained an injunction. The practice was then altered, and this action was brought to recover the overcharges so made, as stated above, down to the time of the injunction being issued. BAXENDALE v. GREAT WESTERN Carriers by Rail Excessive Charges-17 & 18 Vict. c. 31-Money had and received. By the 7 & 8 Vict. c. iii. the Great Western Railway Company are empowered, whenever they shall act as carriers, to charge for the carriage of goods, &c., such sums as they may think expedient, within the limits pointed out by their Acts of incorporation, provided such charges are made to all persons equally; and section 51 authorises them to enter into such arrangements as they may think fit as to the collection and delivery of goods. By 10 & 11 Vict. c. ccxxvi. s. 53, the company are empowered to charge for small parcels-i.e., parcels not exceeding 500 lbs. weight—"any sum which they think fit": Held, (affirming the judgment of the Court below,) that the company are bound to charge equally, and cannot demand a sum for toll which shall include the cost for collection and delivery, and so impose a payment on those who do not require the service, and that money had and received will lie to recover back money so paid in excess. * This was Error on a special case argued in the Court of Common Pleas in Easter Term, 1863, on which there was judgment for the plaintiff to recover the sum of 4431. 10s. 2d. and 1497. 19s. 6d. for costs of suit. From this judgment the defendants now appealed. The original action was brought by the plaintiff against the Great Western Railway Company to recover certain alleged overcharges made by them to the plaintiffs for carriage and consignments of goods under 500 lbs. weight. The Great Western Railway Company are common carriers of goods. The course adopted by them for carrying on their business, * 2 N. R. 245; 14 C. B. (N. s.) 1. The question submitted to the Court on the special case was, whether the plaintiffs were entitled to recover from the defendants the sum of 4431. 10s. 21., or any and what part thereof. If the Court should be of opinion in the affirmative, judgment was to be entered up for the plaintiffs for 4437. 10s. 2d., with costs of suit. Judgment was entered for the plaintiffs, and against this judgment the defendants now appealed. Montague Smith, Q. C. (Field with him), for plaintiffs in Error. These charges were neither illegal by any statute law, nor illegal at Common Law. By the 53rd section of 10 & 11 Vict. c. ccxxvi. the Legislature gives the railway company discretion as to small parcels to charge "any sum which they think fit." This section is not varied by the special Acts, nor by the 8 & 9 Vict. c. 20. This case is entirely independent of the Traffic Act (17 & 18 Vict. c. 31). That Act gives power to check cases of undue preference by railway carriers. Mere inequality is not sufficient to enable the plaintiff to recover, Charges may be unequal, and yet not unreasonable, and there is nothing at Common Law to prevent a carrier making unequal charges to suit his own particular friends. [WILLES, J.-There is nothing to prevent unequal charges at Common Law; but it is necessary to see that such charges are not unreasonable.] Section 53 of the 10 & 11 Vict. c. ccxxvi. is to be construed as it stands, and is not subject to the control or restriction as to unreasonableness. Where a power is given in express terms to a railway company to charge anything they think fit, and the Legislature has not controlled that power, and there is nothing to control it, they are entitled to make what charges they please. [CROMPTON, J.-The Act says all are to be charged equally; can you charge some 17. and others 17. 2s. 6d. ? This is charged, not for tolls, but for services which you may have if you like.] Pleas that it is not competent to the company to add a charge for collecting to or from the railway station, inasmuch as in so doing they are imposing on those You may bring your goods to the railway; but it is who do not require their services a charge which may at your option. [CROMPTON, J.—They are carriers by Act of Parliament from one terminus to another, and are authorised as railway carriers to make certain charges on the railway; what right have they to add a charge for what one customer requires and another does not? Take the case of a coach in former days taking up passengers.] be reasonable to one person, but which is clearly unreasonable to those who do not require them. The Traffic Act applies to this case. This charge, therefore, is an unequal one. By the 10 & 11 Vict. c. ccxxvi. s. 53, the company are entitled to demand tolls at their discretion. It follows from that merely that the Act limiting the company to a maximum toll is, as to certain articles, It is submitted that it is a lawful charge and not repealed; but the tariff for articles under 500 pounds prohibited by the Act of Parliament. weight must be incorporated with the former section; [CROMPTON, J.-The fault is in making a man pay a and if a man who does not want, or is compelled, to charge under the disguise of a railway toll.] They make no profit by the collection. [MELLOR, J.—Toll means carrying goods from Bristol to Paddington; but not from Paddington to Whitechapel.] [COCKBURN, C.J.-In the cases of two articles of the same weight, do you think they have a right (as things cannot be classified) to charge 207. or 20d. just as they choose?] I think they would have a right to do so. They have a tariff, and they would classify as far as that is possible; but there are some cases which would not come within it. The obligation of a carrier is to charge reasonably, but not equally (8 Vict. c. 20, s. 90), Pickford v. Grand Junction Railway Company, 10 pay a charge which he does not require, it is unequal. If the judgment in Parker v. Great Western Railway Company (6 El. & Bl. 77) can be considered to decide that money had and received in such a case will not lie, we think that that decision should not bind this Court. The equality clauses are not superseded. The Legislature imposes this restriction-that all are to be equal charges. I am happy to say that it is at last settled that these charges on persons who do not require the services for which the charges are made, under the disguise of toll, are put an end to. C. C. R. 23 JAN. 1864. Judgment affirmed. REGINA V. KERRIGAN. Branley v. South-Eastern Railway Company, 12 Coram-COCKBURN, C.J., CROMPTON, WILLES, and C. B. (N. s.) 63; Parker v. Great Western Railway Company, 6 El. & Bl. 77. 2nd. As to the facts of the case. There is no carrier preferred to another, as in Pickford v. Grand Junction Railway Company, Assume that the equality clauses do apply, nothing is found to show any unreasonable charge. [COCKBURN, C.J.-Assume a charge for A and B ; if the same sum is charged for A alone, surely that must be unreasonable.] KEATING, JJ., and CHANNELL, B. False Pretences-Conspiracy to Defraud. On an indictment for obtaining money by false pre tences, the evidence was, that the money was obtained partly by false pretences made by the prisoner, and partly by pretences made by another with whom the prisoner was proved to have conspired to obtain the money : Held, that as soon as the prisoner and the other person were connected together to obtain money by false The charge for the service on the railway is not pretences, the act of one was the act of the other, and found to be unreasonable. that the conviction was right. 3rd. As to money had and received. There is no actual sum which can be recovered back; and as a special remedy by appeal to the Quarter Sessions was given by 7 & 8 Vict. c. iii. s. 51, this form of action will not lie. The prisoner was indicted at the Derby Quarter Sessions on two counts for obtaining money by false pretences and conspiracy to defraud. The Commitment charged him, with one William Wilson, for that they the said John Kerrigan and Bovill, Q. C., in support of the judgment, was not William Wilson, on the 7th day of September instant, called upon. COCKBURN, C.J.-We are all agreed that the judgment of the Court below should be affirmed. The 7 & 8 Vict. c. iii. contains equality clauses, which are renewed in the subsequent Railway Clauses Act; and a construction was given by the Court of Common at Belper, in the said county, did unlawfully, knowingly, and falsely, pretend to sell to Daniel Barlow two bales of tobacco containing 3 cwt. at and for the sum of 497., whereas, in truth and in fact, the said bales contained about half-a-pound of tobacco only, by which said false pretence the said John Kerrigan and William Wilson did unlawfully obtain from the said |