specting these coals, three times, at 10s. 1 10 0 "Loss of sale of ninety tons coals, being at the rate of five tons per day, at 2s. 900 "Additional cost of 518 tons coals bought of The Great Northern Railway Company, at 2s. "Extra cost of thirty-six tons coals, being obliged to deliver sea coals instead of inland, 8s. 11 0 0 14 8 0 1851. HUNT v. THE GREAT NORTHERN RAILWAY CO. £49 19 6" The plaint came on for hearing on the 24th of February, when the plaintiff claimed to recover the several sums above mentioned, as damages for the refusal of the company to carry certain waggons or carriages belonging to the plaintiff, containing coals, from Peterborough to Potter's Bar; and it appeared from the evidence adduced by him that such refusal was grounded upon a demand made by the company to be paid by the plaintiff a sum of 21. 10s. for the passing over their line of railway of, and for bringing back, the said waggons empty from Potter's Bar to Peterborough, after having conveyed them from the latter to the former place with coals 1851. HUNT v. THE GREAT NORTHERN RAILWAY CO. therein, and which sum of 21. 10s. the plaintiff had refused to pay; and it was contended by the plaintiff's counsel that the company's act, 13 & 14 Vict. c. lxi., the 13th section of which imposes a toll of 44d. per mile on every carriage, did not include empty coal-trucks or waggons. On the part of the company, it was insisted that the sum so demanded by them in respect of the said waggons was a toll or charge authorised by their act; and it was submitted, that, inasmuch as their right to demand the said toll was in question, the judge of the county-court had no jurisdiction to hear and determine the plaint. (a) The judge took time to consider; and, on the 28th of March, he gave judgment for the plaintiff, debt 391. 19s. 6d., costs 137. 8s. Byles, Serjt., now moved for a prohibition to the judge of the county-court, to restrain him from proceeding upon that judgment. This is a case in which the company's right to a "toll," within the meaning of the 9 & 10 Vict. c. 95. s. 58., came in question, and consequently the judge of the inferior court acted without jurisdiction. The 13th section of the 13 & 14 Vict. c. lxi. enacts, that, "with respect to the conveyance of goods and minerals, the said companies (b) may lawfully demand and receive as their maximum rate of charge (a) Section 58. of the countycourts act, 9 & 10 Vict. c. 95.,— the clause which confers jurisdiction, contains the following proviso:-" Provided always, that the court shall not have cognisance of any action of ejectment, or in which the title to any corporeal or incorporeal hereditaments, or to any toll, fair, market, or franchise, shall be in question, or in which the validity of any devise, bequest, or limitation under any will or settlement may be disputed, or for any malicious prosecution, or for any libel or slander, or for criminal conversation, or for seduction, or breach of promise of marriage." (b) The Great Northern Railway Company and The East Lincolnshire Railway Company. 1851. HUNT v. THE GREAT for the conveyance thereof along their railways, including the tolls for the use of the railways, and waggons or trucks, and locomotive power, and every expense incidental to such conveyance, except a reasonable sum for loading, covering, and unloading, and for delivery and RAILWAY Co. collection, and any other service incidental to the business or duty of a carrier, where such services or any of them are or is performed by the said companies: and except a reasonable sum for warehousing and wharfage, or for any other extraordinary services performed by the said companies (in respect of which the said companies may make a reasonable extra charge), any rates or sums not exceeding the rates or sums following," (inter alia,) "For every carriage, 4 per mile: For all coal, cannel, culm, coke, slack, and cinders, conveyed any distance not exceeding 24 miles, the sum of 1d. per ton per mile; and, if conveyed for any distance exceeding 24 miles, d. per ton per mile, for the whole distance travelled." And s. 16. enacts "that the said companies shall from time to time and at all times find and provide sufficient locomotive power, when and as the same shall be required, and (as soon as an adequate and sufficient load shall be in readiness), convey all merchandise, articles, empty waggons, matters, and things, upon and along their railways: provided always, that all minerals shall be presented to the companies in waggons fitted to travel on the railways at the ordinary speed." [Williams, J. Why did not the defendants apply for a certiorari?] The question for consideration now is, whether the sum claimed by the company under these provisions, is a "toll," within the meaning of the 58th section of the 9 & 10 Vict. c. 95. [Cresswell, J. This is not a toll it is a sum payable for the use of the locomotive power.] In the companies clauses consolidation act, 8 & 9 Vict. c. 20. s. 3., it is provided that "the word toll' shall include any rate or charge or other J The question whether the company make a charge for returning empty wag doubt a very important one; but it does not such a question as is contemplated by the proviso the 9 & 10 Vict. c. 95. s. 58. WILLIAMS, J. The obvious course was to come for a certiorari. Rule refused. LARK. flease. April 30. In debt for rent on an indenture, sitting at with a plea of non est factum, ced a deed, the plaintiff is g witness, who entitled to re cover, on pro udant: but, upon his duction of a said he did not see the deed bearing a counterpart he aware that any deed had stamp, and on e plaintiff at that or at any other proof of its execution by the defendant, -without going on to prove the exe u produced had two seals affixed to it, amped with the ordinary counterpart stamp. the part of the defendant, it was contended, that, the absence of proof that the deed produced was a lease by himduplicate or counterpart, it must be assumed to be a lease, and consequently that the stamp was insufficient. The learned judge declined to nonsuit the plaintiff, but reserved leave to the defendant to move; and a verdict was found for the plaintiff, damages 4251. Corrie now moved to enter a nonsuit. He submitted that the indenture in question was under the circumstances inadmissible. [Jervis, C. J. Suppose it had appeared that two deeds were executed, and that one only was stamped, would the counterpart (unstamped) have been admissible?] In Garnons v. Swift (a), it was held, that, if two parts of an instrument are prepared, but only one is stamped, the party having the custody of the unstamped part may give secondary evi (a) 1 Taunt. 507. self. |