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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 4 d. 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 131. 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 (8) may lawfully demand and receive as their maximum rate of charge for the conveyance thereof along their railways, includ- 1851. ing the tolls for the use of the railways, and waggons or

(a) Section 58. of the county- the validity of any devise, be courts act, 9 & 10 Vict. c. 95.,— quest, or limitation under any the clause which confers jurisdic- will or settlement may be distion,-contains the following pro- puted, or for any malicious proseviso :-“ Provided always, that cution, or for any libel or slander, the court shall not have cognisance or for criminal conversation, or of any action of ejectment, or in for seduction, or breach of prowhich the title to any corporeal or

mise of marriage.” incorporeal hereditaments, or to (6) The Great Northern Railany toll, fair, market, or franchise, way Company and The East shall be in question, or in which Lincolnshire Railway Company.

v. THE GREAT

HUNT trucks, and locomotive power, and every expense incidental to such conveyance, except a reasonable sum for Northern 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, id. 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

1851.

14 VICTORIA,

HUNT

V.
THE GREAT

NORTHERN
RAILWAY Co.

therein, and which sum of 21. 108
refused to pay; and it was conter
counsel that the company's act.
13th section of which impos
every carriage, did not i
waggons.

On the part of the
sum so demanded by
was a toll or char
submitted, that
said toll was
had no juris

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of Mar

cu could not come in

*, and for delivery and Privany m.
sept a reasonable gum fore Name****

, and every expense inci
the railways, and waggons of
greof along their railways, include wil.

Txom001

idental to the basic

prohisue as to their

391. 16

The question whether the company u 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.

The obvious course was to come for a

WILLIAMS, J. certiorari.

Rule refused.

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1851.

of along their railways, includ

railways, and waggons or derery expense inciasonable sum for VIRTUVEY

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18.31.

LARK.

April 30. Please.

In debt for rent on an

indenture, * sitting at with a plea of

non est factum, ced a deed, the plaintiff is ś 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 us he aware that any deed had stamp, and on Je plaintiff at that or at any other execution by u produced had two seals affixed to it, the defendant,

-without umped with the ordinary counterpart stamp. going on to the part of the defendant, it was contended, that, prove the exe

cution of a . the absence of proof that the deed produced was a lease by him

self. duplicate 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.

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1851,

payment payable under the special act for any passenger, animal, carriage, goods, merchandise, articles,

matters, or things conveyed on the railway.” [WilTHE GREAT NORTHERN

liams, J. How does the title to any toll come in quesRailway Co. tion here?] By the title coming in question, is not

meant, whether the party is seised of any hereditament to entitle him to demand the toll; but whether he is entitled to the toll he claims to exact. (Williams, J. The question is, not what is the meaning of “toll” in the railway acts, but what is the meaning of that word in the county-courts act.]

JERVIS, C. J. To entitle the defendants to a prohibition, there must be a bona fide dispute as to their title to toll: I think that did not and could not come in question here.

CRESSWELL, J. The question whether the company have a right to make a charge for returning empty waggons is no doubt a very important one; but it does not raise such a question as is contemplated by the proviso in the 9 & 10 Vict. c. 95. s. 58.

WILLIAMS, J. The obvious course was to come for a certiorari.

Rule refused.

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