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to answer.

the subpoena required a defendant to appear and recovered against the defendant, Robert Honywood, answer, the Court had held that, where there were two judgments for sums together amounting to cross-suits, the plaintiff in the original suit was 5,408!. 16s. 9d., and on the same days the judgments entitled to have an answer to his bill before he put in were duly registered under the 1 & 2 Vict. c. 110. In an answer to the cross-bill. The reason was, that he was the following year the defendant was outlawed, and the first to require an answer ; and if he amended his went to reside on the Continent. On February 20th, bill so that the subpoena required an answer to the 1859, the defendant's ler brother, William Philip amended bill on matters introduced posterior to the Honywood, died, leaving the defendant his heir-atfiling of the cross-bill, the priority was lost.*

law, and the defendant thereupon proceeded, through Under the new practice, the indorsement on the bill agents in England, to make negotiations with his only required the defendant to appear: interrogatories creditors, including the plaintiff, and the result, so far were filed separately, and need not be filed at all. There as concerns the plaintiff, was the indenture of April was, therefore, now a class of suits in which the defen- 23rd, 1859, the subject of the present suit. At the date dant was required to appear only, and not to answer. of the indenture the defendant was entitled in fee It was to be observed that section 19 of the Act 15 & 16 simple to a freehold, but this was of insignificant Vict. c. 86, which substituted a concise statement for value, and his position really depended upon his suca cross-bill, reserved the right of priority to an answer cession to his brother's estates. His brother, at the in those cases only where the defendant was required date of his death, was entitled to the fee simple of

Now, where no interrogatories were filed certain freeholds, and had believed himself absolutely within the time limited by the Order, a defendant cntitled also to copyholds of very great value, of which, might well suppose that he was not to be required to as tenant in tail, he had executed a disentailing assuranswer, and would be entitled to have an answer to ance dated the 9th of May, 1816. But this assurance the interrogatories to a cross-bill filed by him before had never been enrolled. When, however, this defect he himself answered the original bill. It was not, first came to the knowledge of the defendant, whether however, to be inferred from this that the same would before or after his brother's death, appeared neither hold in a case where the interrogatories to the original from the bill nor from the evidence. The defendant's bill, though filed after those to the cross-bill, were

brother by his will left “all his real estates” away filed within the proper time. It might then be from the defendant, but charged upon them an annuity reasonably argued that a defendant had no right to of 5001. in his favour. But the will was executed only suppose that he was not to be required to answer till two days before his death, and the defendant at once the proper time had elapsed, but his Honour desired resolved to dispute probate on the ground of the to leave this point undecided.

mental incapacity of the testator. Following the analogy of the old practice, his Honour The indenture of the 23rd of April, 1859, was made held that the plaintiff in the cross-suit having been between the plaintiff

' and the defendant. It recited that the first to file interrogatories, and so require an the defendant's brother had died, leaving a will, answer, was entitled to have his bill answered first. whereby he had devised an annuity of 5001. to the

defendant, but had otherwise disinherited him, and Minute. --Order discharged, with costs.

that it was the intention of the defendant, as his heir. Note. -See, as to this,

at-law, forthwith to dispute the will ; and the defenSteward v. Roc, 2 P. Wms. 435.

dant covenanted that if the plaintiff should, within fourteen days, accept 1,8001., and enter up satisfaction

of the judgments, then the defendant, if ever he Wood, V.-C. Solomox v. HonYWOOD.

recovered the frechold estates whereof the defendant's 23 FEB. 1864.

brother died seised, and which would have descended

to the defendant as heir-at-law if the defendant's Principal and Agent-Misrepresentation.

brother had died intestate, would pay to the plaintiff The arrangements for a deed between A and B were 4,4001. and interest from the date of the indenture, negotiated on A's behalf by C, his solicitor. B cannot and would, as a security for the payment of the same, maintain a bill to have the deed set aside, on the ground convey to the plaintiff the freehold estates, and that C, knowing material circumstances, concealed the that meantime the interest of the defendant in the same from him, unless he shows that A, the principal, freehold estates should be charged with the principal

sum and interest. The deed contained a covenant at the same time had the same knowledge. But the knowledge of the principal would be the knowledge of 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 This was a bill to set aside an indenture, dated estate. 23rd April, 1859, made under the following circum- The indenture was arranged between the plainstances :

tiff 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

the agent.

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induced to execute the indenture in ignorance of the well charged upon the freehold and copyhold heralita«lefendant's title to the copyholds, and upon the repre- ments, and all other hereditaments to which the sentations of Mr. Davis that the defendant had no defendant was or had been seised, and upon the funds available for satisfying the judgments besides purchase-moneys of such of the copyholds as had been the freehold estates of his brother, the right to which sold. he was disputing. The bill did not charge fraud

Giffard, Q.C., and Lopes, for the plaintiff. against Mr. Davis ; on the contrary, it alleged that probably the true facts respecting the copyholds were

The plaintiff was ignorant of the defendant's pasi · unknown to Mr. Davis at the time, and contained no

tion, and executed the deed relying upon the state

ments of the defendant's agent, which prove to b statement as to whether the facts were known or not to the defendant. But from the statements of Mr. misrepresentations. The defendant cannot take adDavis upon cross-examination, it appeared that in vantage of these misrepresentations, whether they were the draft of the indenture the words originally

fraudulent or not. They cited,

Edwards v. McLeay, 2 Swan. 287 ; stood, “hereditaments and real estate," and that these words had been afterwards struck out, and the

Scholefield v. Temple, John. 155; worls “freehold estates” substituted throughout.

Hugenin v. Baseley, 2 W. & T. L. C. 462. The alteration had been made by Mr. Davis, and

Rolt, Q.C., and Hardy, for the defendant. the plaintiff had at the time consented to it. The suggestion at the bar was, that the alteration Woon, V.-C. said. — There was no case here made was fraudulently made with a view to exempt the for setting aside the deed. Neither fraud nor mutual copyholds. The evidence for the defendant was to error had been proved. the effect that Davis had only said that the defen- There was no fraud : the bill nowhere alleged that alant, having been disinherited, was a “hopeless the defendant himself, at the date of the indenture, beggar," but that there was an offchance of his knew he was entitled to the copyholds ; very likely upsetting his brother's will, and that the plaintiff he did not, looking at the shortness of the interval had better take a security on this offchance and which had elapsed since his brother's death. But the the 1,8001. paid down. In November, 1859, the knowledge of the defendant was indispensable for the defendant disentailed the copyholds, and on the 8th plaintiff's claim : without it, the knowledge of his of June, 1861, obtained a decree in a suit in Equity, agent was immaterial. On the other hand, all that the confirming his right to them, and declaring in defendant knew would be taken to be known to his operative the disentailing assurance of his brother. agent. On the 3rd of February, 1860, the defendant con- Nor was there mutual error. The evidence for the sented to the probate of his brother's will, upon an plaintiff failed to show that both sides agreed, the agreement that his brother's widow should pay him, one to give and the other to take all the security during her widowhood, an annuity of 2001. per which the defendant could offer. The indente annum, to be vested in trustees, so as not to be recited the gift to the defendant, under his brother's subject to the defendant's creditors, and that certain will, of an annuity of 5001., and also the intention of of the copyholds should be sold to the brother's widow the defendant to contest the will; nevertheless, in at a valuation.

fixing the security, both this annuity and any personal The plaintiff now filed his bill against the defendant estate of the defendant's brother to which the defend. Robert Honywood alone praying that the indenture ant would become entitled, if he succeeded in upset. of the 23rd of April, 1859, might be set aside, and for ting the will, were left untouched. The bill must be a declaration that the amount due to the plaintiff was dismissed with costs.

COMMON LAW.

}

B. 10;

C. P.

Tupper v. Williams, 1 P. W. 261 ; 18 APRIL, 25 MAY, 1863. PIGOT v. CUBLEY.

Coggs v. Bernard, 1 Sm. L. C. 147 ; 1 FEB, 1864.

Stockman v. Parr, 11 M. & W. 809 ; TroverBailor and Bailee Right to Sell.

Bromage v. Vaughan, 9 Q. B. 608 ; 16 L. J. Q. Plaintif deposited pictures with defendant as security Harpham v. Child, 1 F. & F. 602 ; for a loan for a month. At the end of that time it was

2 Kent's Comm. 758 (8th ed.); agreed the loan should continue, the plaintiff paying 10s. Story's Equity Jurisprudence, ss. 1031, 1033; interest per month. At the end of another month de- Addison on Contracts, 307. fendant wrote to plaintiff demanding by mistake 1l.

Cur. adv. vull. more than was due, and saying if the amount was not 1 FEB. 1864. paid, he should sell the goods. He sold them :

ERLE, C.J., now delivered the judgment of the Held, he had no right to do so till the credit was Court (Erle, C.J., Williams, Byles, and Keating, determined, which had not been done by the letter de- JJ.):manding more than was due.

In this case the plaintiff sued the defendant in This was an action of trover for the recovery of two

trover for the wrongful sale of two pictures. They had pictures, one “The Opera Cloak," the other “The

been placed in the defendant's hands by the plaintiff Fireman's Dog,” tried before Williams, J.

on the occasion of a loan for 51., for which the The pictures, it appeared, had been exhibited at plaintiff gave the defendant a promissory note at a Canterbury Hall, and the plaintiff being short of cash month, 11. having been deducted for interest in got a loan on them of 5l. from the defendant, to be

advance. When the note became due on the 3rd of paid in a month, 11. being retained for interest. The

August, 1862, the defendant applied to the plaintiff money was not repaid, and the plaintiff asked for time, for the amount, but he requested further time for paywhich the defendant said he might have, paying him ment, which the defendant allowed on the terms of 108. a month interest. The plaintiff agreed to this,

108. a month being paid for interest. According to and gave the defendant an order for the delivery of the the defendant's evidence a single month's time was pictures as security. The defendant got the pictures, given, but the plaintiff swore, and the jury believed sold one, and put up the other in a half-crown raffle, him, that the extension of time on those terms was realising about 51. on them, before doing which he indefinite. After the first month's extended time had sent the plaintiff a notice that unless his claim for expired, viz. on September 19, the defendant wrote to 61. 108. was paid, he should proceed to sell the the plaintiff to the effect, that unless the amount of pictures. The Judge left to the jury, whether the his claim was paid he should proceed to sell the agreement for further time, was (as the plaintiff con

pictures in liquidation of it. By mistake, however, tended) indefinite, he paying 108. a month, or whether he claimed 11. too much by this letter, and it did not it was (as the defendant said) for one month only reach the plaintiff till he returned to London in They found it was indefinite. On which the Judge No further communication took place between him and

November. At that time the pictures were unsold. directed a verdict to be entered for the defendant, the defendant till after the defendant bad sold them. giving the plaintiff leave to move.

The plaintiff then tendered the defendant the debt with 18 APRIL, 1863.

the stipulated monthly interest, and demanded back Watkin Williams obtained a rule to enter the verdict the pictures. But the defendant 'declined to accept for the plaintiff for 201., which sum the jury had found the money, on the ground that he had already sold was the value of the pictures.

them. On these facts the questions arose whether

such sale was unauthorised, inasmuch as the jury found 25 May, 1863.

that it was noť 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.

sell in default of due payment of the note. The Judge The following authorities were cited,

at the trial thought that the defendant had authority Pothonier v. Dawson, Holt, N. P. 383 ;

to sell, inasmuch as the deposit was made as a security Kemp v. Westbrook, 1 Yes. sen. 278;

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 was either to carry from station to station, or to col. Coggs v. Bernard, and the recent decision of this Court lect the goods at one terminus and deliver them to the in Johnson v. Stear (ante, 425). But it is unneces- consignees at another. Down to 1858, they charged sary for the Court to determine that question, because a sum for carriage including the cost of collecting and leave was also given to move to enter a verdict for the delivering : and where the goods were brought to or plaintiff on another point, viz., that before the power taken from the station by the parties themselves, a to sell, supposing it to have been conferred, was exer- reduction or rebate was made to them by the comcised, the parties had substituted a new agreement pany. The plaintiffs, Messrs. Baxendale, who are under which the time for payment, and consequently common carriers, collected and delivered their own the power of sale, was indefinitely extended. And on goods, and took the rebate. this latter point our opinion is in favour of the plain- In 1858 the company ceased to make the allowanca, tiff; for, although it was certainly competent to either and thenceforth compelled the plaintiffs to pay the party, by taking proper steps, to terminate the new same sum for conveyance from station to station as if arrangement, yet we think the mere sending of the the company collected and delivered also. The plaintiff letter demanding an excessive amount had not that paid the money under protest. They then applied to effect. The verdict must therefore be entered for the the Court of Common Pleas for redress under the plaintiff for 201.

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 abore, Ex. Ch. BAXENDALE V. GREAT WESTERN }

down to the time of the injunction being issuech. 5 JAN. 1864. RAILWAY COMPANY.

The question submitted to the Court on the special Carriers by RailExcessive Charges-17 & 18 case was, whether the plaintiffs were entitled to recover Vict. c. 31 – Money had and received.

from the defendants the sum of 4431. 103. 9., or any

and what part thereof. If the Court should be of By the 7 & 8 Vict. c. ii. the Great Western Railway opinion in the affirmative, judgment was to be entered Company are empowered, whenever they shall act as up for the plaintiffs for 4431. 10s. 2d., with costs of carriers, to charge for the carriage of goods, dc., such suit. sums as they may think expedient, within the limits Judgment was entered for the plaintiffs, and against pointed out by their Acts of incorporation, provided this judgment the defendants now appealed. such charges are made to all persons equally; and section 51 authorises them to enter into such arrangements Montague Smith, Q.C. (Field with him), for plaintiffs as they may think fit as to the collection and delivery of in Error. goods. By 10 & 11 Vict. c. ccxxvi. s. 53, the company These charges were neither illegal by any statute are empowered to charge for small parcelsi.c., parcels law, nor illegal at Common Law. By the 53rd section not exceeding 500 lbs. weight—"any sum which they of 10 & 11 Vict. c. ccxxvi. the Legislature gives the think fit:

railway company discretion as to small parcels to Held, (affirming the judgment of the Court below,) charge “any sum which they think fit." This section that the company are bound to charge equally, and is not varied by the special Acts, nor by the 8 & 9 cannot demand a sum for toll which shall include Vict. c. 20. This case is entirely independent of the the cost for collection and delivery, and so impose a Traffic Act (17& 18 Vict. c. 31). That Act gives powe payment on those who do not require the service, and to check cases of undue preference by railway carriers that money had and received will lie to recover back Mere inequality is not sufficient to enable the plaintiff money so paid in excess.

to recover, Charges may be unequal, and yet not thThis was Error on a special case argued in the Court reasonable, and there is nothing at Common Law to of Common Pleas * in Easter Term, 1863, on which prevent a carrier making unequal charges to sait his there was judgment for the plaintiff to recover the own particular friends. sum of 4431. 108. 2d, and 1491. 198. 6d. for costs of

[WILLES, J.—There is nothing to prevent unequal suit.

From this judgment the defendants now ap- charges at Common Law; but it is necessary to see pealed.

that such charges are not unreasonable.) The original action was brought by the plaintiff

Section 53 of the 10 & 11 Vict. c. ccxxvi. is to be against the Great Western Railway Company to construed as it stands, and is not subject to the control recover certain alleged overcharges made by them or restriction as to unreasonableness. Where a power to the plaintiffs for carriage and consignments of is given in express terms to a railway company, to goods under 500 lbs. weight. The Great Western charge anything they think fit, and the Legislature has Railway Company are common carriers of goods. The not controlled that power, and there is nothing to course adopted by them for carrying on their business, control it, they are entitled to make what charges they

please. * 2 N. R. 245; 14 C. B. (n. s.) 1.

(CROMPTON, J.—The Act says all are to be charged

equally; can you charge some 11. and others 11. 2s. 6d. ? Pleas that it is not competent to the company to add This is charged, not for tolls, but for services which a charge for collecting to or from the railway station, you may have if you like.]

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.

be reasonable to one person, but which is clearly un[CROMPTON, J.—They are carriers by Act of Parlia- reasonable to those who do not require them. The ment from one terminus to another, and are authorised Traffic Act applies to this case. This charge, there. as railway carriers to make certain charges on the fore, is an unequal one. railway ; what right have they to add a charge for By the 10 & 11 Vict. C. ccxxvi. s. 53, the company what one customer requires and another does not ? are entitled to demand tolls at their discretion. It Take the case of a coach in former days taking up follows from that merely that the Act limiting the passengers.]

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 á railway toll.]

pay a charge which he does not require, it is unequal. They make no profit by the collection.

If the judgment in Parker v. Great Western Railway (MELLOR, J.–Toll means carrying goods from Bristol Company (6 El. & Bl. 77) can be considered to decide to Paddington ; but not from Paddington to White that money had and received in such a case will not chapel.]

lie, we think that that decision should not bind this [COCKBURN, C.J.-In the cases of two articles of the Court. The equality clauses are not superseded. The same weight, do you think they have a right (as things Legislature imposes this restriction—that all are to be cannot be classified) to charge 201. or 20d. just as they equal charges. I am happy to say that it is at last choose ?]

settled that these charges on persons who do not I think they would have a right to do so. They require the services for which the charges are made, have a tariff, and they would classify as far as that is under the disguise of toll, are put an end to. possible ; but there are some cases which would not

Judgment affirmed. 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

C. C. R.
M. & W. 399;

23 JAN. 1864.
Branley v. South-Eastern Railway Company, 12

Coram--COCKBURN, C.J., CROMPTON, WILLES, and
C. B. (x. s.) 63 ;

KEATING, JJ., and CHANNELL, B.
Parker v. Great Western Railway Company, 6 El.
& Bl. 77.

False Pretences-Conspiracy to Defraud. 2nd. As to the facts of the case. There is no carrier preferred to another, as in

On an indictment for obtaining money by false pre Pickford v. Grand Junction Railway Company, tences

, the evidence was, that the money was obtained 10 M. & W. 399.

partly by false pretences made by the prisoner, and Assume that the equality clauses do apply, nothing partly by pretences made by another with whom the is found to show any unreasonable charge.

prisoner was proved to have conspired to obtain the [COCKBURN, C.J.-Assume a charge for A and B; if money :the same sum is charged for A alone, surely that must Held, that as soon as the prisoner and the other per. be unreasonable.]

son 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

The prisoner was indicted at the Derby Quarter actual sum which can be recovered back; and as a Sessions on two counts for obtaining money by false special remedy by appeal to the Quarter Sessions was pretences and conspiracy to defraud. given by 7 & 8 Vict. c. iii. s. 51, this form of action

The Commitment charged him, with one William will not lie.

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,

at Belper, in the said county, did unlawfully, know

ingly, and falsely, pretend to sell to Daniel Barlow COCKBURN, C.J.-We are all agreed that the judg- two bales of tobacco containing 3 cwt. at and for the ment of the Court below should be affirmed. The 7 & sum of 491., whereas, in truth and in fact, the said 8 Vict. c. iii. contains equality clauses, which are bales contained about half-a-pound of tobacco only, by renewed in the subsequent Railway Clauses Act; and which said false pretence the said John Kerrigan and a construction was given by the Court of Common William Wilson did unlawfully obtain from the said

} Regina o. KenriGAN.

called upon.

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