charging Parker at the rate of *38. 5d., when they would have charged the public only 38. 2d.

This, I think, disposes of the four first heads of claim.

[*649

Under the fifth head of claim, it is contended that Parker was entitled to an allowance of 10 per cent., or something less than 10 per cent., for the assistance afforded to the company by his men in loading and unloading on what are called the "meat mornings." The plaintiffs present that claim on two grounds,-first, they say the carrier has done work for the company which the public did not do, and which the company did for the public, and therefore that he was entitled to compensation for it. The court is of opinion that that is not so; as was intimated in the former case just decided. But further, the plaintiffs say, we are entitled to a reduction, on the ground of inequality, because the company entered into a contract with Kent to make him an allowance of 10 per cent. prior to the decision of this court in 1844; and, because they would not, after that decision, carry that agreement into effect, they paid him damages in an action which he brought against them, and 5001. more; and so, in truth, they have been making him, through the intervention of a jury, an allowance which they have withheld from Parker,-which, it is said, brings the case within the principle laid down in the judgment of TINDAL, C. J., in Parker v. The Great Western Railway Company. The answer to that is this: the company have paid Kent damages for the breach of the contract, in withholding the stipulated allowance. How can that be said to constitute, as between Parker and Kent, an inequality of charge? The company did not do that of which the plaintiffs complain: they paid damages for not doing it.

The only remaining question is this,-whether the arbitrator is at liberty, if he shall think fit, to allow interest on the sums recoverable in this action. The *plaintiffs contend that Parker has from the [*650 commencement been paying a sum certain to the company in excess of the lawful charge upon every transaction. There is a demand in writing of the debt, and a demand of interest under the statute 3 & 4 W. 4, c. 42, s. 28. This, therefore, is a sum certain with respect to which a demand has been made for principal and interest; and the arbitrator may, if he thinks fit, give interest. But it is said, on the other hand, that the arbitrator cannot do this, because the company's act of parliament entitles the company to a notice of action, and the notice of action here does not demand interest. There are two answers to this: one is, that there is no plea of want of notice of action, but only a plea of never indebted by statute," the effect of which is altered by Sir F. POLLOCK'S act, 5 & 6 Vict. c. 97, s. 3. The defendants had, therefore, no right to rely upon the general plea: they are bound to plead specially the want of notice of action. A further answer would be, that this is a submission, not only of the action, but of all matters in

66

difference; and the interest would be a matter in difference, whether demanded by the notice of action or not. If the arbitrator could give it, he might give it in that way, notwithstanding the want of claim of interest in the notice.

On these grounds, we are of opinion that this case may be shortly disposed of; for, it being admitted, in the course of the argument, that the matter turns upon the distinction I have pointed out, then we are precluded from any further argument, by the finding of the arbitrator upon the different heads.

Keating. Interest, of course, can only be allowed from the date of the demand.

JERVIS, C. J.-That is regulated by the statute.

Rule accordingly.

*651]

*DORSETT v. ASPDIN. Nov. 19.

Where the plaintiff has, upon the defendant's default, in due time delivered the demurrer-books for him to the two junior judges, the defendant cannot be heard, but the plaintiff will have judgment, unless the defendant appears and pays for the books so delivered for him.

In this court, a previous notice of the plaintiff's intention to take the objection, is not required,

THIS was a demurrer to a plea. The plaintiff having delivered all the demurrer-books,

Crompton, after he had been heard in support of the demurrer, and after Massey Dawson had actually commenced his argument in support of the plea, objected that the defendant ought not to be heard until be had paid for the demurrer-books delivered by the plaintiff on his default.

Massey Dawson, contrà, submitted that the objection came too late, and that, for anything that appeared to the court, the defendant might already have paid for the books. [JERVIS, C. J.-Has the plaintiff complied with the conditions which entitle him to make the objection? He must have delivered the books which the defendant ought to have delivered, on the day following that on which the defendant's default was made; Hooper v. Woolmer, 10 C. B. 370 (E. C. L. R. vol. 70): and, according to Sandall v. Bennett, 2 Ad. & E. 204 (E. C. L. R. vol. 29), (a) he should give notice to the defendant before the objection is made in court.]

Crompton.-The rule of Hilary Term, 4 W. 4, r. 7, provides, that, "four clear days before the day appointed for argument, the plaintiff shall deliver copies of the demurrer-book, special case, or special verdict, to the lord chief justice of the King's Bench or Common Pleas, or lord chief baron, as the case may be, and the senior judge *of the court in which the action is brought; and the defendant shall (a) In that case, it would seem, the default was brought to the notice of the court by affidavit.

*652]

deliver copies to the other two judges of the court next in seniority; and, in default of either party, the other party may, on the day following, deliver such copies as ought to have been so delivered by the party making default: and the party making default shall not be heard until he shall have paid for such copies, or deposited with the clerk of the rules in the King's Bench and Exchequer, or the secondary in the Common Pleas, as the case may be, a sufficient sum to pay for such copies." The plaintiff has literally complied with that rule: there is nothing which requires him to give the defendant notice. [JERVIS, C. J.-It is only fair and proper that notice should be given.] The defendant knows what the rule of court requires of him, and he knows that he has been guilty of a default. [Master Cancellor reported that it had never been the practice in this court to give notice.]

It appearing, upon inquiry of the judge's clerks, that all the demurrer-books had been delivered by the plaintiff's attorney, and in due time,

JERVIS, C. J., said: It appears to be the uniform practice, that, where the plaintiff has, upon the defendant's default, in due time delivered the demurrer-books for him to the two junior judges, he is entitled to judgment, unless the defendant appears and pays for the books so delivered: Scott v. Robson, 1 C. M. & R. 29;t Wilton v. Scarlett, 1 D. & L. 810. That being so, and there being, as the master reports to us, no authority, in this court, for requiring the plaintiff to give the defendant notice of his intention to take the objection, we think the defendant cannot now be heard.

*Dawson asked that the case might be allowed to stand over. JERVIS, C. J.—You may perhaps be let in, if you come tomorrow with an affidavit of merits.

[*653

Dawson, on the following day, produced an affidavit; but, the court not deeming it satisfactory, there was

Judgment for the plaintiff.(a)

(a) See Sheddon, app., Butt, resp., ante, p. 27, where the court refused to hear an appeal under the Registration Act, 6 & 7 Vict. c. 18 (or to allow it to stand over) the appellant having failed, on the respondent's default, to deliver copies of the case to the two junior puisue judges.

HOWARD v. BARNARD. Nov. 4.

The court refused, in an action for the negligent construction of a building, whereby it fell and injured the plaintiff, to grant a new trial, on the ground that the jury had given merely nominal damages,-there being no reason for supposing them to have been actuated by improper motives.

THIS was an action upon the case brought by the plaintiff to recover damages for an injury sustained by him in consequence of the negligent construction of a stand at Epsom, whereby it broke down.

The cause was tried before JERVIS, C. J., at the last Assizes for Surrey, when it appeared, that the defendant was the owner of a stand on the race-course at Epsom; and that, in consequence of its imperfect construction, it broke down whilst the plaintiff and a number of other persons were on it, and the plaintiff received some severe contusions. The jury, a special jury,-returned a verdict for the plaintiff, damages one shilling.

Channell, Serjt., on behalf of the plaintiff, now moved for a new trial. He submitted that the verdict, if not *perverse, was clearly *654] against the evidence, as to the damages which the plaintiff was entitled to. [JERVIS, C. J.-It could only be on payment of costs.] In Armytage v. Haley, 4 Q. B. 917 (E. C. L. R. vol. 45), which was an action for injury by negligence of the defendant's servant, the jury having found a verdict for the plaintiff, with one farthing damages, though it appeared that the plaintiff's thigh was broken, and that he had paid 107. for surgical attendance, the Court of Queen's Bench granted a new trial, on payment of costs. [TALFOURD, J.-This is one of the cases in which there could be no certificate under Lord DENMAN'S act, 3 & 4 Vict. c. 24. JERVIS, C. J.-If it had been, I certainly should not have certified.] The jury clearly have miscarried in their estimate of the damages.

JERVIS, C. J.-I think there ought to be no rule in this case. I saw nothing improper in the conduct of the jury. It was peculiarly their province to determine the amount of compensation the plaintiff was entitled to receive for the injury he had sustained. I think it would be establishing a bad precedent to interfere with their discretion.

MAULE, J.-I am of the same opinion. This is not like the case of tne loss of a leg. The plaintiff, as the jury seem to have thought, was not much hurt, and is now as good a man as ever. Another jury would in all probability not give him 201.; and that would bring it within the rule upon which we always act in these cases,—not to grant a new trial as for a verdict against evidence (which could only be upon payment of costs, and therefore not worth while), where the damages are of so small amount.

*WILLIAMS, J.-I am of the same opinion. There is no *655] ground for imputing improper motives to the jury, and therefore no ground upon which we can interfere.

TALFOURD, J., concurred.

Rule refused.

MARSHALL v. THE YORK, NEWCASTLE, AND BERWICK RAILWAY COMPANY. Nov. 15.

A declaration in case against a railway company for the loss of a passenger's luggage, stated that the defendants received the passenger to be safely carried, together with his luggage, "for reward to the defendants in that behalf;" it then alleged that it was the defendant's duty safely and securely to carry the plaintiff and his luggage, and averred a breach of that duty, whereby the luggage was lost :

Held, that the action being founded on the breach of duty, and not on contract, it was not necessary to allege or to prove that the reward was to be paid by the plaintiff; but that the plaintiff was entitled to recover, although it appeared that the fare was paid by the plaintiff's master, with whom he was travelling at the time.

And, semble, that if the allegation in the declaration did import that the payment was to be made by the plaintiff, the payment by his master on his behalf would be a payment by the plaintiff.

THIS was an action upon the case brought by the plaintiff to recover from the defendants, the York, Newcastle, and Berwick Railway Company, damages for the loss of a portmanteau containing articles of wearing apparel.

The declaration stated that the defendants, before and at the time of the committing of the grievances thereinafter mentioned, were the owners and proprietors of a certain railway, to wit, the Newcastle and Berwick Railway, and of certain carriages used by them for the carriage and conveyance of passengers, goods, and chattels in, upon, and along the said railway, and in, upon, and along certain other railways, from a certain place, to wit, Darlington, to a certain other place, to wit, London, for hire and reward to them, the defendants, in that behalf; [*656 that thereupon the plaintiff, theretofore, to wit, on, &c., at the request of the defendants, became and was a passenger in one of their said carriages, to be by them safely and securely carried and conveyed thereby, together with his luggage, on a certain journey along the said railways, to wit, from Darlington aforesaid, to London aforesaid, for reward to the defendants in that behalf; that the defendants then received the plaintiff as such passenger as aforesaid, together with his luggage, to wit, a certain portmanteau containing divers goods of the plaintiff, to wit, &c., &c.; and that thereupon it then became and was the duty of the defendants to use due and proper care that the plaintiff and his luggage should be safely and securely carried and conveyed by, upon, and along the said railway as aforesaid, from Darlington aforesaid to London aforesaid; but that the defendants did not use due care in that behalf, and that, by their carelessness, negligence, and default, the said luggage became wholly lost to the plaintiff, &c.

The defendants pleaded,-first, not guilty,-secondly, that the plaintiff did not become, nor was he, a passenger in one of the carriages of the defendants, to be by them safely and securely carried thereby, with his luggage, on the said journey, modo et formâ,—thirdly, that the defendants did not receive the said luggage of the plaintiff for the purVOL. XI.-56 30

340;566

530 Eng. 640;