The Sun.
London, England, 1854-06-08 00:00:00

LAW INTELLIGENCE.

COURT OF EXCHEQUER—JUNE 7.
(Sittings in Banco.)
WILLIAMS v. THE GP.EAT WESTERN RAILWAY COMPANY
LIABILITY oP RAILWAY COMPANIES TOR LUGGAGE.

In this case the action was brought by the plaintiff
for compensation. The declaration set forth that the
plaintiff had booked himself from the Paddington station
of the defendants' railway to Bristol for hire as common
carriers, and that they had conducted themselves so
negligently as that his portmanteau with its contents
were lost. To this declaration the defendants pleaded
that they had made a "bye-law" under their act which
permitted every first-class passenger to carry 1121bs.
weight of luggage free of charge, but at the same time
declaring that the company would not be responsible for
the same unless booked and paid for, and that the plain-
tiff was a first-class passenger, and had neither booked
nor paid for his portmanteau and its contents. To this
the plaintiff replied, that as to some of the contents they
were articles of common clothing, not weighing 401b5.,
and of less dimensions than 3 cubic feet, and then as to
the other articles that he entered a nolle prosequi. The
defendants then rejoined that the portmanteau contained
other articles than those of clothing, and to this the
plaintiff demurred.
Mr. Cowling, in support of the demurrer, said that
the question raised was so raised for the purpose of
having the opinion of the court as to the legality of the
bye-law relied upon by the defendants' plea. He would
submit that the company had no power to make the bye-
law, inasmuch as its terms were at variance and incon-
sistent with the 169th section of the company's act, the
sth and 6th Wm. IV., c. 107, which allowed a passenger
to take free of charge articles of clothing not exceeding
40 lbs. in weight and 4 cubit feet in extent, and limited
the liability of the company, as carriers, to articles of
clothing belonging to passengers, of such weight and
such dimensions. By the 144th section the company
were authorised to make bye-laws for the good govern.
ment of the railway, provided the same be not repugnant
to the laws of the country or to any directions in the
act. While by 167th section of the company's act, every
passenger was entitled to carry clothing to the extent of
40 lbs. weight free of charge, for which the company
were declared to be responsible as common carriers, the
bye-law in question not only recited that provision,
but enacted that the company should not be re-
sponsible for any luggage, unless it had been
booked and paid for. Thus he submitted that the
" bye law" was ultra vires, and therefore invalid.
Hence it might well be doubted whether the plaintiff
was entitled to recover not merely for the articles of
clothing, but for the other articles in the portmanteau,
namely, a razor, brushes, strop, and a dressing-case as
necessary accompaniments to a gentleman travelling.
The Lord Chief Baron said that the term " articles of
clothing" should include everything requisite for a toilet.
This was quite clear that as a man could not wear a
razor or a brush, it was also clear that he could not
dress decently without those articles. The court were
clearly of opinion that the company had no power to
make such a "bye-law." Yet they would hear what
the other side had to say.
Mr. Willes, in support of the plea, said he was im-
pressed with the belief that he did not represent the
popular side of the question.
The Lord Chief Baron—No doubt you represent the
unpopular side.
Mr. Willes felt that, but nevertheless he knew that his
clients would obtain justice if he could, as he hoped to
be able to satisfy their lordships that this bye-law
was a reasonable one, and not in contravention of the
general law or the provisions of the company, and he
then proceeded to argue, that as regarded the obligation
to "book" luggage, the bye-law must clearly be held to
be reasonable, but it was so also as to the payment, and
was one which under the 144th section, taken with the
189th and the 220th sections of the company's act, they
had power to make. The 144th section might be ad-
mitted to be ambiguous. The words for " The manage-
ment of the said undertaking" might or might not in-
clude the management of the traffic and the passengers ;
but taken with the other sections, the company con-
tended that they had power to make the bye-laws in
question. The 189th section, for instance, gave power
to make rules for regulating the travelling upon, and the
use of, the railway, and the travellers passing on it, and
for preventing the smoking of tobacco and the commis-
sion of nuisance thereon. Under that section the com-
pany might make orders for the various classes of pas-
sengers, and the affixing of labels on the luggage, which
the passengers must submit to, and the non-compliance
with which must exempt the company from responsibility
in case of loss.
Mr. Baron Alderson said that might be, but the bye
law was a repeal of the 144th sect. of the act which
allowed every passenger to carry 401bs. weight of lug-
gage free of charge at the risk of the company. How
could the company say by a bye law they would not be
liable unless luggage were booked and paid for, con-
sistently\vith that section I
The Chief Baron—As to the rule requiring luggage to
be labelled, that is quite another thing, and such a rule
may be a reasonable one. Besides the company, like
any other carriers, may refuse to carry the luggage ex-
cept on such conditions.
Mr. Baron Martin said that a railway company might
make a rule for the government of its business, as any
of the old carriers might, but they could not make a bye
law saying they would not do that which their own act
said they must do.
Mr. Willes said that at all events they might require
the luggage to be booked.
Mr. Baron Martin—That may be.
The Chief Baron—They might say that first-class pas-
sengers must travel by first class carriages, and that
° second class passengers must travel in second class car-
riageS, and they might insist on their allowing their lug-
gage to be labelled, and placed in certain carriages, to
facilitate delivery; but all these were very different mat-
ters from making every passenger book and pay for his
. luggage, and saying they would not be responsible as
carriers, unless both were done. Such a bye-la, was
clearly bad.
Mr. Willes said, that if the court were of that opinion
it would be idle in him to contend the point further.
The Chief Baron--We are all of opinion that the bye-
law is clearly bad. It is sufficient for us to say it is in
direct contravention of the 144th section. There must,
therefore, be judgment for the plaintiff.
Mr. Cowling said that the case having concluded, he
could not avoid expressing his surprise that the company
had thought it prudent to raise this question.
Mr. Baron Martin—l agree with you. I wonder at
lit, too.
Mr. Willes—My learned friend might be content with
his judgment.
Judgment for the plaintiff.
BANKS T. OLLITON.—.7I7DGMBNT.
The Chief Baron delivered judgment in this case,
argued in a former term. The case raised two points
for the consideration of the court. The first was
whether a deed executed by a married woman, which
had been acknowledged by her before two perpetual
commissioners, appointed by the act, was invalid, by
reason of the fact that one of the commissioners was a
party interested in the deed. The second question was
whether the proceeding, have been duly certifiA and
filed as of record in the Court of Common Pleas, in pur-
suance of the Act for the Abolition of Fines and Re-
coveries, could be questioned while the certificate re-
mained so filed. The court was of opinion that though
they thought that the rule of the Court of Common
Pleas, which allowed one of the commissioners to be a
party interested might be bad, as not being warranted
by the statute, yet no distinct judgment might be given
on the first point, as it was clear that so long as the
proceedings remained in proper form on the records of
that court, their sufficiency could not be questioned.
Before that was done it would be necessary to quash
the certificate, or remove it from the records of the
court. Under these circumstances the judgment of the
court must be for the defendant.
Judgment accordingly.

THE IMPERIAL GAS COMPANY V. THE LONDON GAS
LIGHT COMPANY.
Mr. Bovill moved to rescind an order of Mr. Baron
Martin made at chambers. The first count of the de-
claration charges the defendants with boring the pipes of
the plaintiffs, fixing their own pipes, and drawing off the

gas—
Mr. Baron Platt—ln other words stealing the gas.
Mr. Bovill—We will not use hard terms ; they get
into the public papers ; there is a cross action against
the plaintiffs. All this might be an accident. The second
count charged the defendants with secretly, fraudulently,
and covinously cutting the pipes so affixed, and, in order
to conceal their former fraud, pluggin, up tho pipes of
the plaintiffs, whereby the plaintiffs, by the concealment
of the former fraud for upwards of six years, lost their
right of action. This count showed a trespass to which
no demurrer could be available ; but,. it was clear that

the whole gravamen of the count was fraud and deceit,
and would be so considered. Be had gone before Mi
Baron Martin at chambers, on the ground that the couni

was really a count in case, and not in trespass, and that
it was calculated to embarrass the defendants in their

defence, and was entitled to know what the count meant.
It would be found hereafter that the plaintiffs would
treat this count as disclosing a cause of action on the
ground of fraud by the defendants whenever it suited
their purpose, and would proceed not for the trespass,
but the alleged consequential injury.
Mr. Baron Parke said, he could not see why the
plaintiffs were not to recover consequential damages.
Mr. Baron Martin thought that he had made the
pleadings as clear as could be by his order.
Mr. Bovill said, if the Court would decide this count
to be a simple count in trespass, be should be content.
Mr. Baron Parke—lt is a perfectly good count in tres-
pass,
and in my opinion will enable them to recover all
the damages they have a right to by reason of the loss
of their cause of action ; for they allege that you com-
mitted the trespass well knowing
.the effect, and intend-
ing to prevent them from discovering your former tres-
pass ; they can recover special damages.
Mr. Bovill—The real fact is that the defendants cut
off the pipes and plugged up the holes to prevent more
gas flowing, assoon as the communication was discovered
by them ; but this is a question of fact for hereafter.
Mr. Baron Parke—lf you plead not guilty, you may
raise the question of fraud ; and if you are innocent, they
will get no damages beyond the bare compensation for
the injury dune to the pipes.
Mr. Baron Martin— You may demur if you please.
Mr. Bovill said, on the view of the matter takrn by
the Court, there was no use in his pressing his applica-
tion.

TEE TESTAMENTARY JURISDICTION BILL. - The
second reading of this bill, which has passed the Lords,
is fixed in the Commons for Monday next. Mr. Males,
the Chancery barrister, will move that it be read that
day six months,