Kemplay, I agree with my brother MARTIN that the Act applies only to an absolute transfer of the goods, and was never intended to deprive a person who made advances on the security of the bill of lading of the benefit of the original contract of the shipper to pay the freight. The second section expressly provides that nothing in the Act shall prejudice or affect any right to claim freight against the original shipper or owner. Suppose Edwards had himself shipped the goods and afterwards transferred the bill of lading to a third person, there would have been two liabilities, that of Edwards as shipper, and that of such third person as transferee. Here the original liability of the shipper has never been extinguished. It is said that the defendant incurred the liability for Edwards, and the rights and liabilities of Edwards have vested in the plaintiffs. But the defendant is liable as shipper, and that liability has never vested in the plaintiffs. Upon that ground, as well as upon the grounds stated by my learned brothers, I think that there is no reason, either legal or equitable, why the plaintiffs should not have the full benefit of their contract with the defendant. Judgment for the plaintiffs. 1861. April 30. 1861. April 25. [644] SCOPE v. PADDISON. (6 II. & N. 641-643; S. C. 30 L. J. Ex. 244; 7 Jur. N. S. 1061; 4 L. T. N. S. 254.) [Construction of repealed section of Common Law Procedure Act, 1852.] PEGLER v. THE MONMOUTHSHIRE RAILWAY (6 H. & N. 644-655; S. C. 30 L. J. Ex. 249; 4 L. T. N. S. 331; 9 W. R. 597.) THIS action was brought to recover the sum of 12s. 6d., as money had and received by the defendants for the use of the plaintiff. The defendants pleaded that they never were indebted. The cause came on to be tried, before Hill, J., at the last Monmouthshire Summer Assizes, when a verdict was found for the plaintiff for the sum of 12s. 6d., subject to the opinion of the Court upon the following case: (1) Cf. Hall v. L. B. & S. C. Rail. Cv. (1885) 15 Q. B. D. 505; 53 L. T. 345 (affd. 17 Q. B. Div. 230, 55 L. J. Q. B. 328, 54 L. T. 713). MONMOUTH- SHIRE [ *645] The defendants are the owners of a railway from the town PEGLER of Newport to the town of Pontypool, in the county of Monmouth, under the provisions of the "Newport and Pontypool Railway Act, 1845," and are common carriers of passengers and goods upon the said railway. The plaintiff is a grocer, carrying on business in the town of Pontypool. On the 24th and 25th of November, 1859, 100 sacks of flour, weighing altogether twelve tons and a half, and addressed to the plaintiff at the railway station, Pontypool, were taken to the goods station of the defendants' railway at Newport, and were there delivered to, and received by, the defendants as common carriers, to be carried by them upon their railway to Pontypool, and there delivered to the plaintiff. The flour was brought to the station at Newport by the plaintiff's agents, and was received by the defendants' servants there, who assisted in unloading the same, and then wheeled it, in defendants' platform trucks, along their platform and loaded it into the defendants' trucks. These trucks were first shunted from the siding at Newport Station to the loading shed there; and, after being loaded with *the flour were again shunted to the proper siding for forming the goods train going to Pontypool. The flour was then carried by the defendants, as common carriers, from the station at Newport to the defendants' goods station at Pontypool. On arrival at the said station, the trucks containing the flour were shunted to the defendants' goods shed there, and the flour was there delivered to the plaintiff, and by his servants, assisted by the servants of the defendants, unloaded immediately from the defendants' trucks into the carts of the plaintiff, and conveyed in such carts to the plaintiff's place of business. The distance from the station at Newport to the station at Pontypool is nine miles and a half; and, after the delivery of the flour at Pontypool, the defendants demanded from the plaintiff, for and in respect of the carriage thereof, from Newport to Pontypool, the sum of 21. 10s. This amount was made up of a toll charge at the rate of threepence per ton, per mile, and a sum of 12s. 6d. claimed as a terminal charge, in respect of services performed, conveniences provided, and expenses incurred, in and about the receiving and delivering of the flour at the defendants' stations. The services, conveniences and expenses, in respect of which the defendants claim the right to demand this terminal charge, are the receiving of the flour by their porters and servants, when brought to their station at Newport, and the weighing and invoicing of the same and loading it on their trucks, and for the use of their stations, yards, sheds, and platforms at Newport and Pontypool, and the gas light, and all other conveniences neces PEGLER MONMOUTH- RAILWAY Co. sarily connected with such stations, sheds, and platforms, for the purpose of receiving, and loading and unloading goods, and which are erected and are maintained by them for the purpose of carrying on the business of carriers under the provisions of their said Act; and also for the making of proper entries of the [ *646] receiving and delivering of the flour, by the defendants' *clerks and agents, in books kept for that purpose; and also for the risk incidental to the loading, carrying, and unloading. [ *647 ] By the 104th section of "The Newport and Pontypool Railway Act, 1845," which provides for the tolls to be demanded by the defendants for the use of the railway, as amended by section 34 of "The Monmouthshire Railway and Canal Act, 1853," the defendants were empowered to demand for the use of the railway, in respect of the tonnage of flour conveyed upon the same, where locomotive power and trucks were provided by the Company, a sum not exceeding threepence per ton per mile; and by section 105 of "The Newport and Pontypool Railway Act, 1845," it is enacted that the following provisions and regulations shall be applicable to the fixing of the tolls mentioned in the 104th section, and also to the tolls payable for locomotive power, that is to say, for articles or persons conveyed on the railway for a less distance than four miles, the Company may demand, in addition to the prescribed tolls for conveyance, a reasonable charge for the expense of stopping, loading and unloading, and further, "that for a fraction of a mile beyond four miles, or beyond any greater number of miles, the Company may demand tolls on merchandize for such fraction in proportion to the numbers of quarters of a mile contained therein; and, if there be a portion of a quarter of a mile, such fraction shall be deemed a quarter of a mile," and that "for a fraction. of a ton the Company may demand toll according to the number of quarters of a ton in such fraction; and, if there be a fraction of a quarter of a ton, such fraction shall be deemed a quarter of a ton." The plaintiff disputed the right of the defendants to demand, for the carriage and conveyance by them as common carriers of the said flour, and the receiving and delivering of them as aforesaid, more than the tolls chargeable under the aforesaid sections for the use of the railway in respect *of the tonnage of flour conveyed along the same, and the tolls payable for providing trucks and locomotive power for such conveyance, and refused to pay the sum of 12s. 6d. demanded as a terminal charge. The plaintiff afterwards paid the whole sum under a protest, and brought the present action to recover back the said sum of 12s. 6d. The defendants' special Acts are to be considered as forming PEGLER part of this case. It is agreed that, if the defendants are entitled to charge any sum for a terminal charge in respect of the matter hereinbefore mnetioned, the sum of 12s. 6d. is a reasonable charge. The question for the opinion of the Court is, whether or not the defendants were entitled to demand from the plaintiff the payment of the said sum of 12s. 6d. over and above the tolls. mentioned in the above sections of their special Acts of Parliament. If the Court shall be of opinion the defendants were not entitled to make such charge, then the verdict is to stand, and final judgment is to be entered for the plaintiff. If the Court should be of a contrary opinion, then the verdict is to be set aside, and a verdict and final judgment entered for the defendants. J. Brown (Pigott, Serjt., with him), for the plaintiff : The defendants are not entitled to make this "terminal charge of 12s. 6d., in addition to the tolls authorized to be taken by their special Acts. The "Newport and Pontypool Railway Act, 1845," (8 & 9 Vict. c. clxix.), by section 1 incorporates the Railway Clauses Consolidation Act, 1845. By section 128 (1) (1) Section 128. That the Company shall and they are hereby required to carry, as common carriers for hire, on their existing railways, within three years after the passing of this Act, and also on the railway when and as soon as the same shall be open for traffic, by means of locomotive steam engines or other moving power, in their own carriages and in the carriages of other persons, all passengers, animals and goods which may be brought to their railways, and which they may be required to convey thereon; and the Company shall afford to all persons conveying or sending goods upon their railways every reasonable convenience and facility for loading and unloading goods upon and from the carriages, whether their own or those of the Company, at the several stations or other places for delivery or receiving such goods, without giving any preference or priority to one person over another in the time or manner of loading, unloading, receiving, conveying or delivering such goods." This section was repealed by "The Monmouthshire Railway and Canal Act, 1832,” 15 & 16 Vict. c. cxxvi., s. 1, and by section 5, it was enacted: "That the Company shall and they are hereby required to continue to carry, as common carriers v. MONMOUTH SHIRE RAILWAY Co. SHIRE RAILWAY Co. [ *618 ] [ *649 ] PEGLER the Company are required to carry, *as common carriers for MONMOUTH hire, on their railways, passengers, animals and goods, and to afford all persons sending goods upon their railways every reasonable convenience and facility for loading and unloading goods at the several stations. The 104th section prescribes the amount of the tolls which the Company are authorized to demand for the use of their railway. By the interpretation clause (sect. 146) "the word 'toll' shall include any charge or payment for any passenger, animal, or goods upon any canal *or railway, whether for the use of the canal or railway, or for the moving power, or for the use of carriages." The toll allowed to be taken by section 104 of the Newport and Pontypool Railway Act, 1845, as amended by the 34th section of the Monmouthshire Railway and Canal Act, 1853 (16 & 17 Vict. c. cxcv.), for the conveyance of flour on the railway, is twopence per ton per mile, and one half-penny per ton per mile. in respect of locomotive power. By the 134th section the Company may demand, in addition, one halfpenny per ton per mile for the use of locomotive power. By the 105th section, which contains provisions and regulations as to the fixing of tolls, "For articles or persons conveyed on the railway for a less distance than four miles, the Company may demand, in addition to the prescribed tolls for conveyance, a reasonable charge for the expense of stopping, loading and unloading." That provision shows that in other cases the Company are not to make any additional charge. Moreover, by the 92nd section of "The Railways Clauses Consolidation Act, 1845," it is expressly declared that it shall not be lawful for the Company at any time to demand or take a greater amount of toll, or make any greater charge for the carriage of passengers or goods, than they are by this and the special Act authorized to demand." It is said that this charge is not for the carriage of the goods, but for terminal service incidental to the carriage; but it is not possible to carry heavy goods without loading and unloading them in trucks. In Parker v. The 'Great Western Railway Company (1), it was held, that where the Company acted as carriers, they were not entitled to charge for loading and unloading, in addition to the rate for carriage. There (2) JERVIS, Ch. J., said, "Where parties use their own trucks and ask the Company to load them, they are entitled to charge for so doing." *And MAULE, J., said: “It may be that the customer may wish the Company to load and unload, or to weigh and warehouse the goods; for that the Company are empowered to make an extra charge; but the rate for carriage includes the taking the goods into the hands of the (1) 11 C. B, 545. (2) P. 569. [*650 ] 66 |