only to actions of two kinds: first, where the penalty can be sued for by the Queen alone; secondly, where it can be sued for by the Queen or a private individual. The present action is of a third kind, namely, for a penalty which can be sued for by a private individual only, without any limitation in favour of the Queen, and it is a casus omissus in the statute. There is an old case of Culliford v. Blandford (1) which expressly decides this. It is variously reported by the different reporters, and in Carthew it is said to have been a qui tam action, but that must have been a mistake. In that report it is expressly said by Mr. Justice Eyre to be a casus omissus in the statute. The case went into a court of error, as appears from a note to the report in Shower and from a note to the report of the case of Lookup v. Frederick (3), and it was there affirmed by a majority of the Judges against the opinion of Treby, C.J. and Powell, J.

[MARTIN, B.-Culliford v. Blandford (1) does not seem to be cited in Williams Saunders (4), and its omission from such a book throws, in my opinion, great doubt upon its authority.]

It was followed in Chance v. Adams (5), and is recognized as law in Comyns's Digest, tit. 'Information,' (A. 3). There is a

committed or to be committed against such act penal, and not after two years. 2. And that all actions, suits, bills or informations which after the said twenty days shall be had, brought, sued or commenced for any forfeiture upon any penal statute made or to be made, except the statute of tillage, the benefit whereof is or shall be by the said statute limited to the Queen, her heirs or successors, and to any other which shall prosecute in that behalf, shall be had, brought, sued or commenced by any person that may lawfully pursue for the same as aforesaid, within one year next after the offence committed or to be committed against the said statute. 3. And in default of such pursuit, that then the same shall be had, sued and exhibited or brought for the Queen's majesty, her heirs or successors, at any time within two years after that time ended. 4. And if any action, suit, bill, indictment or information for any offence against any penal statute made or to be made, except the statute of tillage, shall be brought after the time in that behalf before limited, that then the same shall be void and of none effect, any act or statute made to the contrary notwithstanding."

(1) Carthew, 232; Comberbach, 195; Shower, 253; Holt, 522; 4 Mod. Rep. 129.

(3) 4 Burr. 2018.

(4) See 2 Wms. Saund. 63, n. 6.

(5) 1 Ld. Raym. 77.

contrary decision in Lookup v. Frederick (3), but it is not clear that the judgment was really on the point.

Gray and Staveley Hill supported the rule. The periods of limitation of penal actions were first fixed by 7 Hen. 8. c. 3, and by that statute actions for penalties to be recovered by the informer alone were to be brought within one year, while four years were allowed where they were to be recovered by the king alone, and two years where by the king or the informer. The 31 Eliz. c. 5. was passed for the purpose of restricting still further those periods, and it repealed the former statute. It is absurd to say that while it restricted the sovereign to a period of two years it enlarged the time which the common informer previously had. The case cited of Culliford v. Blandford (1) seems, from some of the reports, to have been decided on the point that as a latitat had been sued out within the year the requirements of the statute had been satisfied. It is mentioned in Buller's Nisi Prius, 195, where, it would seem that judgment was eventually given for the defendant. In 1 Tidd's Practice, 13, it is said that the more reasonable opinion is that as the informer is restricted to one year when the King is joined with him, much more should he be bound when he sues by himself.

[MARTIN, B.-Mr. Tidd was the Lord Coke of practice.]

The case was argued on the 16th and 17th of January, and on the 19th the following judgments were delivered

POLLOCK, C.B.-With respect to the question about the Statute of Limitations, I am of opinion, and no person acquainted with the history of our law can entertain any doubt whatever, that a penal action brought by a common informer must be brought within a year after the commission of the offence. It is supposed that the question turns entirely upon the 31 Eliz c. 5, and perhaps, strictly speaking, it does But in order to come to a conclusion in favour of the plaintiff, we must suppose that the legislature, which in the 7 Hen. 8. c. 3. had strictly limited informers to one year, and in the 18 Eliz. c. 5. had taken especial care and pains to direct that every writ of that nature should have indorsed on it the day

SO.

when it was issued (and both the one statute and the other expressly say it is to prevent the vexation arising from penal actions by common informers), afterwards, in the 31 Eliz. c. 5, when the statute of 7 Hen. 8. c. 3. was repealed, but that of 18 Eliz. c. 5. was left unrepealed, committed this extraordinary blunder, that while limiting the Queen to two years instead of four, and the informer qui tam to one year, they set free the informer pro se ipso altogether and allowed him to bring his action when he liked. That is the conclusion to which we are invited to come by the argument in this case. I am clearly of opinion that the latter part of the section may be read so as to include every species of penal action. To limit the Queen and the informer to one year and to leave the informer alone without any limitation, is to come to a conclusion so very absurd and to impute such carelessness and folly to the legislature, that we ought not to do so, particularly after the thorough understanding which has existed in the profession, to my certain knowledge, for more than fifty years, as to the state of the law. Mr. Tidd's experience carries it back some thirty or forty years at least prior to that. And when we come to the authorities cited in favour of a contrary view, they appear to me to be so questionable, and are reported in such different ways that, the "authorities," meaning by that the actual decisions of the Courts, seem to be in favour of the construction which this Court is disposed to put upon the statute, and in accordance with the opinions entertained by the members of the profession whose recorded opinions we have. We have, in addition, the opinion of Chief Baron Comyns in his work; we have the opinion of Mr. Justice Buller in his work on Nisi Prius; we have the opinion of the learned editor of Williams Saunders; and greater authorities, so far as names are concerned, cannot be cited. With the reverence which is due to the legislature, we must not impute to them the folly which some of the older reports would seem to indicate, if indeed they correctly state what passed. But they seem to me to omit all the arguments, and all mention of the statute of 7 Hen. 8. c. 3, which I think an extremely important statute, and which seems to my mind to reconcile the whole course

of legislation. I must therefore express my strong opinion that the statute passed in the 31 Eliz. applies to the present case. I am of opinion, also, that if the action is well founded and the verdict is to stand, the plaintiff can recover but one penalty only.

But I am further of opinion that there ought to be a new trial. In an action upon a penal statute, unless the legislature expressly directs that certain proof shall be sufficient, it is not sufficient to give evidence which is consistent with the guilt of the person charged, but you must go further, and prove that the defendant has incurred the penalty with reasonable certainty; and I think that that has not been done in this case. It is not desirable, where a new trial is to be granted, that either party should know more than that the Court considers the case not to have been sufficiently made out. I do not think it is the duty of the Court to point out how it can be made out; and certainly if there be any case in which I should be sorry to point out to the plaintiff in what way he might succeed, it would be the present. Upon the point upon which alone it is necessary for the Court to give an opinion, I am clearly of opinion that the penalty can only be recovered within a year after the commission of the offence.

MARTIN, B.-I am quite of the same opinion. With respect to the first point, on which, in my judgment, the whole thing depends, that is, whether the limitation of one year is imposed on this action, I own that I entertain no doubt. It is a notorious matter of history that these actions existed to an enormous extent in the reign of Henry the Seventh; and it is one of the reproaches cast upon his memory that he encouraged informers to bring actions, which, no doubt, caused him a great deal of unpopularity, continuing possibly to the present time. It appears that there were at that time three species of these actions; there were proceedings directly by the Crown, there were proceedings directly by the Crown and another person, and there were proceedings directly by an individual himself-the common informer. Mr. Matthews stated that he had made research, but was unable to find that prior to this statute of Elizabeth there was any statute which gave the entire penalty to the informer. It is quite clear that he is in error, for the

statute of Henry the Eighth shews clearly that at that time such actions did exist, and it specially enacts that they must be brought within the year. The matter went on, and in the 31st year of the reign of Queen Elizabeth, which was, I expect, when she was so exceedingly unpopular in consequence of monopolies, a step was taken for the purpose of still further discouraging these actions.

By a not unreasonable construction of that act, it may be taken to comprise all that the act of Henry the Eighth comprised. Being made in aid of that act, it would be a monstrous construction to hold, that a limitation having been put upon two sets of these actions, no limitation at all should be put on the third. I need not say

more than that it seems to me that if we had to decide this case upon the statutes of Henry the Eighth and Elizabeth alone, the construction I have mentioned would be the proper and correct one. But the case is decided by the judgment of the Court of Common Pleas on the special case in Lookup v. Frederick (3). The very point is stated by Mr. Justice Buller to have been decided there; and Mr. Tidd, in his Practice, relies upon it as an authority to that effect, and he says that there was an opinion held to the contrary, but that it was an unreasonable one. Therefore I think that no doubt can exist that the statute of Elizabeth prescribes one year for the bringing of those actions. [The rest of the judgment was upon the evidence given at the trial, and to the effect that a new trial must be had.]

PIGOTT, B.-I am of the same opinion. I quite agree with what has fallen from the Lord Chief Baron and my Brother Martin with reference to the statute of Elizabeth, and if anything were wanting. to shew the true construction it would be found in 21 Jac. 1. c. 4. s. 3, which, without distinguishing between an action brought by the common informer and a qui tam action, requires the plaintiff to make an affidavit that the penal act was done within the twelve months. [The remainder of the judgment was upon the evidence, and was in favour of a new trial.]

CHANNELL, B.-I agree with the rest of the Court, that if the plaintiff is entitled to a verdict it can, by force of the statute, be for one penalty only. Upon that point

I feel it to be quite unnecessary to add anything to the observations made by the other members of the Court. [The remainder of the judgment was to the effect that the judgment should stand for one penalty.] On the following day (Jan. 20),

POLLOCK, C.B. said-I wish to add to the judgment which we delivered yesterday that there is a case in the Exchequer of Pleas in Ireland, in which the Court expressed a strong opinion that the statute applied to all penal actions, although the point was not expressly decided, and some time afterwards, in another case, where the action was brought by the common informer, the Court acted on that opinion, and pronounced precisely the judgment that this Court did yesterday in this case. The case in Ireland was Johnson v. Barratt (6), and all the authorities cited before us were cited there. I mention this because the argument on the part of the plaintiff was conducted with considerable ability and research, and with a very large proportion of zeal and apparent confidence, and we originally met the case by stating what had been the opinion of the profession for, as I could certify, half a century, and, as I believe, for thirty or forty years before; but we had no case in our Courts such as that which I now mention in the Courts of Ireland. The reason probably is, that the point has been considered so thoroughly settled that it was useless to raise the question.

Rule absolute for a new trial.

same or similar circumstances, were in the habit of charging a tonnage - rate upon packages weighing more than 1 cwt., and a higher rate upon packages weighing less. When several parcels were delivered by the same person in one consignment, addressed to the same consignee, they were not weighed and charged for separately, but were weighed together, and a tonnage-rate charged for the whole consignment, if the gross weight exceeded 1 cut. The plaintiffs were common carriers, trading under the name of "Pickford & Co.," and they were in the habit of collecting parcels in London and forwarding them to customers in the country. Each parcel was addressed to the person to whom it was ultimately to be delivered; but it was labelled with the name of "Pickford & Co." and that of the station to which it was to be sent; and all the parcels for the same station were delivered in one consignment consigned to the plaintiffs at that station. The defendants refused to charge the plaintiffs for the carriage of their parcels at a tonnagerate upon the gross weight, and charged for each parcel separately according to its individual weight:-Held, that this created an inequality.

The defendants were in the habit of carrying goods from London to the Isle of Wight, by their own railway from London to Southampton, and thence by tramway and steamer. The plaintiffs also were in the habit of carrying goods from London to the Isle of Wight, using the defendants' line from London to Southampton, and thence conveying them by carts and steamer. The plaintiffs claimed to have their goods carried by the defendants from London to Southampton at a sum equivalent to the defendants' through-charge from London to the Isle of Wight, less a fair charge for collection in London, and for carrying from Southampton station to the Isle of Wight :Held, that they were not entitled to this; the delivery by the defendants beyond the limits of their line not being a delivery auxiliary or subsidiary to their business as carriers on their own line, but to their general business as common carriers, and therefore differing from a case of delivery in the immediate neighbourhood of a station.

The declaration contained counts for work done, money paid, money had and

received, and on accounts stated. The defendants paid 91. into court, and pleaded never indebted as to the residue.

At the trial, before Martin, B., at the Sittings in London after Trinity Term, 1864, a verdict was entered by consent for the plaintiffs for the damages claimed in the declaration, subject to the opinion of the Court upon a special case. The following were the material facts stated by the case.

The plaintiffs are common carriers, and carry on business under the style of " Pickford & Co.," and they are in the habit of employing various railway companies as common carriers, for the carriage of goods, including the defendants. The defendants are incorporated by the 4 & 5 Will. 4. c. lxxxviii., local and personal, which act has been amended by various subsequent acts. Their railway runs from their station at Nine Elms, London, to, amongst other places, Guildford and Southampton.

By section 149. of the first-mentioned act, the company are empowered to demand and receive for the tonnage of all articles conveyed along or upon the said railway. rates or tolls not exceeding 3d. per mile for some, and 6d. per mile for other things specified in the section.

By section 155. it is enacted, "That it shall be lawful for the said company from time to time to make such orders for ascertaining and fixing the price or sum to be charged or taken by the said company in respect of small parcels (not exceeding 500lb. weight), specie and bullion, quicksilver, platina and cochineal, to be carried upon the said railway, and from time to time to repeal or vary the same, as to them shall seem proper. Provided always, that the provision herein before contained as to goods, shall not extend to goods, articles, matters and things sent in large aggregate quantities, although made up of separate and distinct parcels, but only to single and undivided parcels."

By section 156. it is further enacted, "That it shall be lawful for the said company, and they are hereby authorized to carry and convey upon the said railway all such goods, articles, matters and things, and all such cattle and other animals as shall be offered to them for that purpose, and all such persons as shall apply to be carried and conveyed along the said rail

way or any part thereof, and to demand, receive and recover to and for the use and benefit of the said company, for such carriage and conveyance as aforesaid of all goods, articles, matters and things, cattle, animals and persons carried and conveyed upon the same, in addition to the usual rates and tolls herein before authorized to be charged and received, such sum of money as the said company or the said directors may from time to time fix and require."

By section 158. it is further enacted, "That it shall be lawful for the said company from time to time, and so often as they shall think fit, to reduce all or any of the rates, tolls or sums by this act authorized to be taken, and afterwards, from time to time, again to raise the same or any of them, so that the same respectively shall not at any time exceed the amount by this act authorized. Provided always, that the said company shall not partially raise or lower the rates, tolls or sums payable under this act, but all such rates, tolls and sums shall be so fixed that the same shall be taken from all persons alike under the same or similar circumstances."

The defendants carry on the ordinary business of a railway company upon the said line of railway, and they also carry on the business of common carriers between the stations upon their line, and also between their several stations and places beyond the limits of their line.

The grounds of complaint alleged by the plaintiffs against the defendants, and in respect of which this action is brought, are three in number, namely:

First in respect of overcharges upon consignments of goods, by charging for their carriage rates according to the weight of packages contained in those consignments taken separately, instead of a tonnagerate upon the whole of the consignments by the plaintiffs of the same class of goods.

Secondly, overcharges in not allowing to the plaintiffs a sufficient deduction or rebate for the collection, delivery and cartage of goods both in London and in the country, when those services were not performed by the defendants.

Thirdly, overcharges by charging upon goods carried for the plaintiffs by the defendants from Nine Elms to Southampton

station, thence to be forwarded by the plaintiffs to the Isle of Wight, rates which are higher than those charged to other persons, under the same or similar circumstances.

The facts upon which the plaintiffs' first claim arises, are as follows. The defendants are in the habit of charging for goods carried by them upon their line according to two different rates, viz., a tonnage-rate upon goods over 1 cwt., and a small parcels' rate for articles under that weight. The small parcels' rate is considerably higher than the tonnage-rate.

When goods are delivered to the defendants by one person in a single consignment, at one and the same time, and are addressed to the same consignee, the defendants are in the habit of adding the weight of all such small packages under 1 cwt. together, and charging for them upon their aggregate weight a tonnage-rate, although such goods consist of a number of small packages, each singly weighing under 1 cwt.

The plaintiffs have been and are in the habit of sending by the defendants' railway from one station to another large consignments of goods, each consignment frequently consisting of a number of small parcels. In every such case the plaintiffs themselves delivered the goods to the defendants at the station whence they were to go, directed and consigned to the plaintiffs at the sta tion to which they were to be carried, and where they were to be delivered to the plaintiffs, and at such last-mentioned station the plaintiffs themselves received them from the defendants. In such cases the plaintiffs delivered to the defendants with each consignment a declaration or tickingoff note, containing the name of the plaintiffs' firm as the consignors, and also as the consignees of the goods, the description but not the weight of the goods, and the name of the station to which they were to be carried. [These declarations or ticking-off notes were all similar to one annexed to the case, containing a list of the names of the persons to whom the various small parcels were to be delivered, the whole consignment purporting to be "from P. & Co. on account of P. & Co., to Guildford station."]-Each package comprised in any consignment was labelled with a label, on which was printed in plain letters the name