Neutral Citation Number: [1842] UKHL J12

(1842) 1 Bell 278; 8 Cl & Fin 710; 8 ER 279

HOUSE OF LORDS 22 March 1842
Before:
Lord Cottenham
Lord Brougham
Lord Campbell
____________________
Between:
EDINBURGH and DALKEITH RAILWAY COMPANY
Appellants
-v-
JOHN WAUCHOPE, of Edmonstone
Respondent
____________________
HTML VERSION OF JUDGMENT
____________________

The first Act under which the Appellants were formed into a company was
passed in the year 1826 (7 Geo. 4, c. xcviii), for "making a Railway from
Edinburgh to the South Side of the River Northesk, near Dalkeith and
Newbattle." While this Act was in progress through Parlimant, the
Respondent, who was a proprietor of lands on the line of the proposed
railway, opposed the bill, but finally abandoned his opposition, on being
satisfied with certain clauses which were introduced into the bill. The
20th section of the Act provided that the company of proprietors "shall pay to
the said J. W. (and other persons therein mentioned), so long as the said
railway shall continue to be used through the said lands or grounds of the
said J. W., the sum of one halfpenny per ton upon all goods and articles
upon which a tonnage duty is chargeable or charged in virtue of this Act,
which shall pass along any part of the said railway standing within the said
lands and grounds of the said J. W., except the coals and other minerals,
corn and other articles, the produce of the said lands and estate." The
85th section contained the following provisions; "It shall be lawful for the
company of proprietors form time to time and at all times to ask, demand,
take, recover, and receive to and for the use and benefit of the said company,
for the tonnage and conveyance of all minerals, goods, wares, merchandises,
and other things which shall be carried or conveyed on the said railway, the
rates and duties following: For every carriage conveying passengers, or
goods or parcels not exceeding five cwt., such sum or sums of money
respectively as the said company of proprietors shall from time to time
direct and appoint, not exceeding 6d. per ton per mile."

Another Act of Parliament (the 4 and 5 W. 4, c. lxxi) was afterwards applied

for and obtained, which repealed some of the provisions of the former Act,
extended others, and continued the rest. The 16 th section of this new Act
recited that whereas certain sums of money in respect of way-leaves had
been granted to the Respondent and others, it enacted that the company of
proprietors might collect the sums for the way-leaves separately from the
rates and duties levied on the main line of the railway, provided that such
rates and way-leaves should not exceed the duties authorised by the former
and by that Act of Parliament. Before the passing of this Act, the Leith
Branch Railway had been united to the Edinburgh and Dalkeith Railway,
and the provisions of its Act were consolidated with those of the new Act,
the 29th section of which declared that "the rates and duties granted by the
recited Acts, for and in respect of carriages conveying passengers, shall be,
and the same are hereby repealed." The 30 th section enacted, "that it shall be
lawful for the company, of proprietors to demand, receive, and recover to
and for the use of the company and of the proprietors of the Leith Branch
Railway respectively, for and in respect of passengers, beasts, cattle, and
animals conveyed in carriages upon the said railway and branches, the
following tolls: For every person conveyed in and upon such carriage, any
sum not exceeding 3d. per mile." The 33d section empowered the company
of proprietors to provide and establish and make charges for conveyance, in
addition to the tolls. The 37 th section authorised the officers of the company
to weigh all carriages and wagons passing on the railways, as often as to
them should appear necessary for determining the weight of goods carried in
such wagons or carriages.

It appeared that, in the first instance, the proprietors had proposed to make
the railway, and to reimburse themselves by the tolls payable in respect of
carriages that other persons might run upon it; but after some time it was
found that this scheme was extremely unprofitable, and then the proprietors
built carriages on their own account, and ran them along the line. The
Respondent had received sums of money at different intervals for years from
the Appellants, in respect of goods and articles conveyed in carriages on that
part of the line that ran through his lands, but in 1835 he claimed a way-
leave on the tonnage of the carriages when loaded with passengers. This
demand was resisted by the Appellants, and the Respondent instituted a suit,
founding his claim on the 20th and 85th sections of the 7 Geo. 4. The
Appellants contested his right, insisting that it must be confined to an
allowance on goods and articles conveyed along the line. They relied first on
the terms of the Act 7 Geo. 4, which they contended did not grant to the
Respondent any allowance in respect of passengers conveyed by the
carriages; and then argued that if such allowance was granted by that Act,
still as that Act was repealed by the 4 and 5 W. 4, c. lxxi., such grant was at
an end. And they further contended that the Respondent, by accepting for
such a time payment in respect of goods and parcels only, had himself put
on the earlier Act a construction fatal to his present claim. The Respondent
insisted that he was entitled to an allowance on all the tonnage charged or
chargeable by the company in respect of carriages conveying either
passengers or goods, and passing though his lands; that the right conferrred
by the 7 Geo. 4 was not affected by the 4 and 5 W. 4; or that if it was, then
that that latter Act could not be made applicable to him, for that it was a
private Act affecting a vested right, and had been introduced without due
notice of its introduction being served on him.

On the 16th of June 1837, the Lord Ordinary pronounced an interlocutor in

favour of the claim o the Respondent; and in his subjoined note expressed
himself on the question of the effect of want of notice upon the operation of
the second Act, in these terms: "The Lord Ordinary is by no means satisfied
that due parliamentary notice was given to the pursuer (the Respondent)
previous to the introduction of this last Act: undoubtedly no notice was
given to him personally, nor did the public notice announce any intention to
take away his existing rights. If, as the Lord Ordinary is disposed to think,
these defects imply a failure to intimate the real design in view, he should be
strongly inclined to hold, in conformity with the principles of the case of
Donald (27th November 1832), that rights previously established could not
be taken away by a private Act, of which due notice was not given to the
party meant to be injured." The Lord Ordinary did not, however, put his
judgment on this ground; but having thus intimated his opinion, added that
he did not think the two Acts were inconsistent with each other, and
consequently did not think himself bound to decide this particular point. The
Appellants appealed against this interlocutor, which was affirmed by a
decree of the Court of Session, on the 14 th of December 1837. The
Appellants were by these decrees ordered to put in accounts of the sums
received by them, and on which they were bound to make allowance to the
Respondent. These accounts having been put in, the case was further
proceeded with, and on the 2d of March 1839 the Lord Ordinary pronounced
another interlocutor, declaring that "having heard counsel for the parties and
considered the accounts lodged by the defenders (the Appellants), and the
objections thereto, finds that, in ascertaining what is due to the pursuer for
his way-leave on the carriages conveying passengers, the tonnage duty is to
be take as laid on the carriages, and not on the passengers also: finds the
pursuer liable on this par of the discussion." The Respondent appealed
against this interlocutor, on the ground that it excluded the tonnage on the
passengers. Upon the 4th of July 1839, the Inner House pronounced a decree
to this effect: "The Lords having resumed consideration of this note, and
heard counsel thereon, alter the interlocutor complained against, sustain the
pursuer's objection to the accounts and remit to the Lord Ordinary to
proceed accordingly. Find the defenders liable in the expenses." Fresh
accounts, calculated in the manner required by the Respondent, were then
put in; and the Lord Ordinary, on the 18th of March 1840, pronounced an
interlocutor approving of these accounts framed under the directions of the
decree of the 4th of July 1839, and finding the defenders liable in expenses
since that date. The Appellants appealed against this interlocutor, but the
Inner House adhered to it, in a decree pronounced on the 21 st of May 1840.

The present appeal was brought against the several interlocutors and decrees
of 16th June and 14th December 1837, of the 4th of July 1839, and of the
21st May 1840.

The Attorney-general, shortly after the opening of the case, abandoned, on

the part of the Respondent, any argument as to the want of notice operating
to defeat the provisions of the 4 and 5 Will. 4.

The Solicitor-general and Mr. Willmore, for the Appellants: There is

nothing in the firs of these Acts that gives the Respondent a right to have an
allowance on the tonnage of the carriages when filled with passenger. The
Appellants have no power to levy a tonnage in respect of the passengers, but
only on the carriages which convey the passengers. The right of tonnage is
confined to the carriages themselves. At the time the first Act was passed
the Appellants only possessed the power of levying a tonnage on such
carriages as other persons should use on the railway: they had no right to
levy a tonnage on passengers. There is no provision in the Act granting such
a tonnage, nor declaring how it shall be ascertained; it was, in fact, never
thought of: the inconvenience of levying such a tonnage is a sufficient
reason why it was never provided for, and fully explains the silence of the
Legislature on the subject. The tonnage was confined to the carriages and to
the goods carried; to things that could be weighed and have their tonnage
ascertained in the usual way. But the duties thus given, whatever they were,
have been taken away by the 4 and 5 Will. 4; and this latter Act, in declaring
what the company shall be entitled to receive, never once makes the weight
of the passenger carried the subject of a tonnage rate. The duty leviable on
carriages conveying passengers, goods, or parcels, is given by the
85th section of the earlier Act; the duty on small parcels themselves is
distinctly provided for in the 91 st section. If the 85th section is to be taken to
include the duty on small parcels, then the duty leviable for small parcels
would be twofold and would be leviable under two distinct sections of the
Act. That cannot be so with respect to small parcels, nor can it be so with
respect to passengers. The two cases are exactly alike. On the other hand, if
the rate fixed in the 85 th section on the carriages conveying parcels is to be
taken as exclusive of the parcels conveyed in them, it must be equally
exclusive of the passengers. Then it follows that there is no rate of tonnage
on the passengers; for unless provided for in that section , it is not imposed
in any other part of the Act.

Then as to the conduct of the parties: the Respondent here had the means of
knowing all the facts; for some years he has received and given discharges
for the duties on the tonnage of goods and parcels; he now claims, for the
firs time, a tonnage duty on passengers. His own previous conduct prevents
him from maintaining this claim; Bramston v. Robins (4 Bing. 11; and see
Andrews v Hancock, 3 Moor, 278; 1 Brod. And Bing. 37) 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 20 th and
85th sections of the 7th Geo. 4 must be construed together. The 20 th section
gives the Respondent a right to an allowance in respect to everything on
which the Appellants could make a charge of tonnage. The 85 th 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 are capable
of conveying passengers, but to carriages conveying passengers. The
Appellants might weigh such carriages if they chose; and the circumstances
that such a proceeding might be inconvenient, would not prevent their right
from becoming applicable. The words are in the present for, "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 and 6 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 great
distinction between the case of a man recovering back money settle 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 Act 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 which a tonnage is charged or chargeable under the Act. In the
85th section, we find that every carriage 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 take upon carriages conveying passengers, and that it
will not be accurate to hold that the words "conveying passengers" are
merely descriptive of 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 91 st 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 85 th 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 and
5 Will. 4. It is a great mistake to suppose that a company can do all that it is
not prevented from doing; it can only do that which is granted to it.

I will only add one word on a point which has been abandoned at this bar,
but an idea of the value 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 effected.] There is no
foundation for such an idea; but such an impression 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 the 20 th section.
If the words are attended to, I am surprised that any doubt should have
existed on the subject; because the 85 th section (which imposes the 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
words used are, "sums to be paid for carriages conveying passengers." In all
other cases they are described as tolls, dues, etc. 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 distinction 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 would not have been intended that passengers should be
altogether omitted. The argument on the one side amounts in fact to this,
that they are to be included by being weighed with the carriages; and, on the
other, it is that they are actually excluded by the 85 th section, and that there
is no other provision by which they are included. But, however imperfect
the expression of the section is, it is much more consistent with the terms
used to consider the weight of the carriage is to be estimated by that which
at the time is conveyed in it, than by its being estimated without reference to
its contents. It is the weight of the carriage conveying passengers. While the
carriage is employed in conveying passengers, there must be an additional
weight to that which the carriage would have had if not conveying them;
and, according to the terms of the section, the rate is to be taken for "every
carriage conveying passengers." There is no doubt that if, in ordinary
conversation, you were describing the weight of a carriage conveying
passengers, you would consider that the carriage must be weighed with the
passengers in it, for otherwise it would be the weight of the carriage not
conveying passengers.

There is little doubt, my Lords, that the provisions of the Act are ambiguous
and inaccurate; but, upon the whole, I am of opinion that the Court of
Session has come to a right conclusion I thus construing the Act, and that
Mr. Wauchope is entitled to the sum of one halfpenny per ton upon the
weigh of the carriage with the addition of the passengers. And if what has
been stated at the bar is correct in fact, namely, that the directors of the
company have actually paid him at the rate upon small parcels under five
hundred weight, I must say that they have themselves put this very
construction upon one part of the Act, and cannot be surprised that we have
applied it to another.

Lord Campbell: My Lords I am entirely of the same opinion. The question

turns exclusively on the construction of the 7 Geo. 4. Under the provisions
of the 85th section, I think that the company is entitled to receive tonnage
upon the carriage and its contents, including the passengers; that upon every
carriage conveying passengers, goods, or parcels not exceeding five hundred
weight, the company is entitled to demand such sum and sums of money,
not exceeding sixpence per mile, as the proprietors shall from time to time
direct to be paid; and that the Respondent is entitled to an allowance on this
tonnage. I think that the weight of the carriage must be taken together with
its passengers and parcels, in order to ascertain this tonnage and the
allowance.

The next question is, whether under the 20 th section of the Act this clause
relating to carriages and parcels does not apply, and whether a carriage with
parcels and passengers is not an article upon which a tonnage duty is
charged or chargeable under the Act. I am clearly of opinion that it is such
an article; and that, therefore, one halfpenny per ton upon the sum received
upon these carriages by the company is payable to Mr. Wauchope.
I think, too, that the arrears are payable. There has been no acquiescence of
Mr. Wauchope in their non-payment; he took the accounts as they were
rendered to him, and there are no facts in this case to bring it within the
principle laid down in Bramston v Robins (4 Bing. 11).

My Lords, I think it right to say a word or two upon the point that has been
raised with regard to an Act of Parliament being held inoperative by a Court
of Justice because the forms prescribed by the two Houses to be observed in
the passing of a bill have not been exactly followed. There seems great
reason to believe that an idea to that effect has prevailed to some extent in
Scotland, for it is brought forward in these papers as a substantive ground of
objection to the applicability of the later Act of Parliament; the objection
being, that this Act being a private Act, it is inoperative as to the pursuer
because he had not proper notice of the intention to apply to Parliament to
pass such an Act. This defence was entered into in the Court below, and the
fact of want of notice was made the subject of inquiry, and the Lord
Ordinary, in the note appended to his interlocutor, gave great weight to this
objection. He said, "he is by no means satisfied that due Parliamentary
notice was given to the pursuer previous to the introduction of this last Act:
undoubtedly no notice was given to him personally, nor did the public
notices announce any intention to take away his existing rights. If, as the
Lord Ordinary is disposed to think, these defects imply a failure to intimate
the real design in view, he should be strongly inclined to hold, in conformity
with the principles of Donald (27 th of November 1832), that rights
previously established could not be taken away by a private Act, of which
due notice was not given to the party meant to be injured." His Lordship
seems, therefore, to have been of opinion, that if this Act did receive the
construction that it would clearly take away from Mr. Wauchope the right to
this tonnage, it would have had that effect only if due notice had been given
to him of the introduction of the bill into the House of Commons; but that
that notice not having been given to him, it could not have such effect, but
became wholly inoperative. I cannot but express my surprise that such a
notion should ever have prevailed. There is no foundation whatever for it.
All that a Court of Justice can do is to look to the Parliamentary roll: if from
that it should appear that a bill has passed both Houses and received the
Royal assent, no Court of Justice can inquire into the mode in which it was
introduced into Parliament, nor into what was done previous to its
introduction, or what passed in Parliament during its progress in its various
stages through any Court in Scotland, but that due effect will be given to
every Act of Parliament, private as well as public, upon what appears to be
the proper construction of its existing provisions.

Lord Brougham: I wish to observe that the Lord Ordinary is not quite
correct in the view that takes of the case of Donald; the topic was there used,
and, as I think, improperly used, but still only as a topic in the course of the
argument.

Appeal dismissed, and interlocutors affirmed, with costs.