1854.

WILLIAMS V. THE GREAT WESTERN RAILWAY COMPANY.

June 7.

tion of the 5 & 6 Will. 4, c.

evii., which in

corporated the

Great Western
Railway Com-

pany, enacts,
"that, without
extra charge, it

for every passenger travel

ling upon the railway to take with him arti

cles of clothing,

not exceeding weight and four forty pounds in cubic feet in di

mensions; and

THE declaration stated, that the company were the The 169th secowners of the Great Western Railway, and of certain carriages used by them for the conveyance of passengers, goods, and chattels, in, upon, and along the said railway, to wit, from the Paddington terminus to Bristol, and from Bristol to the Paddington terminus, for hire and reward to the company in that behalf; and thereupon the plaintiff, to shall be lawful wit, on &c., became and was a passenger in one of their carriages, to be by them safely and securely carried and conveyed thereby, together with his luggage, on a certain journey, to wit, from the Paddington terminus to Bristol, and thence back again from Bristol to the Paddington terminus, for reward to the company in that behalf; and the company then received the plaintiff as such passenger, together with his luggage, to wit, a portmanteau containing divers goods and chattels of the plaintiff, to wit, two coats, three waistcoats, one pair of trousers, four shirts, six handkerchiefs, one dressing-case, three brushes, one razor, one strop, one pair of boots, one set of studs, two pair of stockings, one bottle of scent, of the value, to wit, of 20%; and thereupon it became and was the duty of the company to use due and proper care that the plaintiff and his luggage should be safely and securely carried and conveyed by and upon the said railway from the Paddington terminus to Bristol, and thence from Bristol back again to the Paddington terminus.-Breach: that the company did not use due and proper care in and about the carriage and conveyance of the plaintiff's luggage, but so carelessly

that the company shall in no case be respon

sible for any

things whatsoever carried upon the railway with any passenger, other

senger's articles of clothing, not exceeding the mensions afore

weight and di

said; Provided

that nothing herein containto make liable further than

ed shall extend

the company

ing to law, stagecoach proprie

where, accord

tors and common carriers would be lia

ble. Section 144 enables the company to make bye-laws "for the good government of the affairs of the company, and for the management of the said undertaking." The company made a bye-law, that every first-class passenger should be allowed to carry 112 pounds of luggage free of charge, but that the company would not be responsible for the care of the same, unless booked and the carriage thereof paid for:-Held, that the company had no power to make the bye law, since it was in contravention of the 169th section.

1854.

WILLIAMS

v.

GREAT WESTERN RAILWAY Co.

and negligently conducted themselves with respect to the said luggage, that the same thereby became and was wholly lost to the plaintiff.

Plea: That, after the passing of the 5th & 6th Will. 4, c. cvii., and before the times in the declaration mentioned, a bye-law was, in pursuance of and according to the provisions contained in the said Act, made and enacted by the defendants at a general meeting duly convened in that behalf, by which bye-law it was provided and enacted, that every first-class passenger upon the defendants' railway should be allowed to carry 112 pounds, and every second-class passenger 56 pounds, of luggage free of charge; but that the company would not be responsible for the care of the same, unless booked and the carriage thereof paid for accordingly to the company or their officers in that behalf-Averment, that the said byelaw, from the time when it was made as aforesaid to the time of the committing of the alleged grievances, continually and ever since has been in full force and effect, and reduced into writing under the common seal of the defendants, and printed and published; and that all the requisites to make the same binding and effectual had been, before the time when the plaintiff became a passenger, complied with and fulfilled; and that the said bye-law, ever since the making thereof, up to and at the several times in the declaration mentioned, and every of them, was printed on boards, and hung up and affixed, and continued, on front of the several toll-houses erected on the said railway and the other buildings and places at which any rates or tolls were collected or paid by or to the defendants, and amongst others at the said Paddington Station; that the defendants were always ready and willing to book and receive payments for the luggage in the declaration mentioned; and that the luggage in the declaration mentioned was luggage, and the plaintiff was a first-class passenger within the

true intent and meaning of the said bye-law; and that the plaintiff did not, when he became a passenger, or ever, book and pay for his said luggage, or for any part thereof, and the same was not booked and paid for according to the said bye-law, or in any manner, and the same was not received by the defendants, as in the declaration alleged, otherwise than subject to the said bye-law.

Replication to the said plea, so far as the same relates to part of the said luggage, that is to say, two coats, three waistcoats, one pair of trowsers, four shirts, six handkerchiefs, one pair of boots, two pair of stockings, that the said railway was and is a railway called the Great Western Railway, authorised and constructed under and by virtue of the provisions of certain Acts of Parliament, &c.; that the defendants are the Great Western Railway Company in those Acts mentioned; that, after the passing of the said several Acts, and on the occasion in the declaration mentioned, the plaintiff became and was such passenger in one of their carriages, to be, together with his said luggage, by the company safely and securely carried and conveyed on the said journey upon and along the said railway for reward to the company in that behalf, and the company so then received the plaintiff as such passenger, together with his said luggage, for the purpose aforesaid, and the plaintiff paid the said company, as and for such reward, a sum of money, to wit, 17. 148. 2d.; that the said luggage was the said portmanteau, with the said goods and chattels of the plaintiff in the said portmanteau contained; that divers of the said goods and chattels, that is to say, the said two coats, &c., in the introductory part of this replication mentioned, were the plaintiff's requisite and necessary articles of clothing, and were on the said occasion requisite and necessary to be by and with him had and taken upon and along the said railway, and that the said portmanteau was requisite and necessary for holding the said last-mentioned goods and chattels; VOL. X.

C

EXCH.

1854.

WILLIAMS

v.

GREAT

WESTERN

RAILWAY Co.

1854.

WILLIAMS

V.

GREAT WESTERN RAILWAY Co.

that the residue of the said goods and chattels, that is to say, the said dressing case, the said three brushes, the said razor, the said strop, the said set of studs, and the said bottle of scent, were articles, goods, and chattels of the plaintiff, requisite and necessary for him to be had, taken, and used by him on the said occasion, for the purpose of and in and about the reasonable and necessary attiring and dressing of his person; that the said luggage, that is to say, the said goods and chattels in the declaration mentioned, together with and inclusive of the said portmanteau containing the same, did not exceed forty pounds weight or four cubic feet in dimensions; and that, when he became such passenger on the occasion aforesaid, he had no knowledge or notice of the alleged bye-law; that the said part of the said luggage in the introductory part of this replication mentioned, on the said occasion, by and through the carelessness, negligence, and default of the defendants in that behalf, became and was and is wholly lost to the plaintiff, modo et formâ. And the plaintiff, as to so much of and so far as the said plea relates to the other portion and residue of the said luggage, and the causes of action in respect thereof, says, that he will not further prosecute his suit in respect thereof.

Rejoinder: That no extra charge was made, paid, or received for the carriage of the said portmanteau and things therein, or either of them; and that, besides the articles in the introductory part of the replication mentioned, there were in the said portmanteau, and part of the same parcel and package, divers other things, being others of the goods and chattels in the declaration mentioned so contained in the said portmanteau, which were not articles of clothing; and that the said portmanteau and its contents were not, nor was any part thereof, booked or paid for.

Demurrer and joinder.

Cowling in support of the demurrer.-The rejoinder and plea are bad. It is material, in the first place, to consider the situation of the company independently of the byelaw. The 5 & 6 Will. 4, c. cvii., not merely empowers the company to construct a railway, which may be used by all persons on payment of toll: sect. 163; but it also authorises the company to become common carriers of passengers and goods: sect. 167 (a). The company have availed themselves of that provision, and consequently, by the 169th section (b), every passenger is entitled to have his

1854.

WILLIAMS

v.

GREAT WESTERN RAILWAY CO.