justify the last-mentioned charges; and the complainants believe the said difference of charge has been devised for the express purpose of giving to the dealers in landborne coal an undue preference over them. The affidavit then set out comparative scales of charges made by the company to the complainants, and to others trading from Peterborough, as well prior to the issuing of the injunction in January, 1857, as of the charges now made, for which see opposite. It also contained an allegation, that, notwithstanding the regulations and rates in the papers marked respectively A. and B., the company had on various occasions carried landborne coal from Peterborough to places in the district No. 8 in less quantities than 200 tons or 35 trucks, and by ordinary goods trains at the lower rates. It further proceeded to allege that the difference of charge had the effect of entirely destroying the trade of the complainants at the places named. The relative distances of the places referred to were given as follows:-Between Peterborough and Bury St. Edmunds, 74 miles,-Bury St. Edmunds and Thurston, 4 miles,-Thurston and Elmswell, 5 miles,-Elmswell and Mellis, 12 miles,-Mellis and Diss, 3 *miles,-Elmswell and Stowmarket, 5 miles,-Stowmarket *146] and Needham market, 11 miles,-Stowmarket and Ipswich, 9 miles, Ipswich and Hadleigh, 12 miles,-Ipswich to London, 69 miles. The affidavit then concluded with a general allegation that the complainants had in consequence of the inequality of charges been wholly deprived of their trade with the places enumerated.

Bovill, Q. C., and Sharpe, showed cause upon affidavits of the trafficmanager and the principal engineer of the company. These commenced with a general denial that the company in fixing the districts and the charges for carrying coals had any intention to prejudice the one set of dealers or to give any undue advantage to the other. They then proceeded to state that the quantity of 200 tons or 35 trucks, has been fixed upon as the quantity to be despatched by each coal train from any of the several points of despatch, as that quantity is an ordinary trainload of coal; and that, if a less quantity were carried by a separate train, the cost to the company in the carriage of such less quantity per ton per mile would be so increased that the scales of rates published on the 1st of May, 1857, would not realize to the company any remuneration or return for such carriage of coal beyond or in addition to the actual cost incurred by the company in the working expenses of such trains, and consequently the less the quantities carried in separate trains the greater in proportion would be the cost to the company of conveyance of such trains, and the less the returns: That, in reference to the adjustment of the districts for coal traffic upon the lines of railway under the management of the company, and the regulating and fixing the scale of coal-rates issued by the company on the 1st of May, 1857, the actual cost or amount of working expenses to the company are not in direct *147] proportion to the number of trains run, neither are such expenses directly proportioned to the number of miles run, but are dependent upon the two conditions of number of trains and number of miles run; and that, in estimating the actual cost or amount of working expense incurred by the company in the carriage of coals, it may be assumed, for all practical purposes, that about one-half of the expenses of the company are caused by the number of trains, and are not affected by the number of miles run by those trains, and that the other half of

*Scale of charges made to the complainants prior to Jan. 29, 1857, for the carriage of coals from Ipswich

[*145

Scale of charges, under existing regulations, for the carriage of coals for the complainants from Ipswich

Scale of charges made to Messrs. Prior, previously to Jan. 29, 1857, for the carriage of coals from Peterborough

Scale of charges, under existing regulations, for carriage of coals for other persons than the complainants, from Peterborough—

such expenses are caused by the number of miles run, and are not altered by the number of trains, notwithstanding such trains may be few or many in number, so long as the aggregate mileage run by such trains remains the same: That the regulations and the scales of rates for the carriage of coals were made by the traffic-manager of the company in pursuance of the instructions of the directors given to him to carry into effect the injunction issued by this court in the matter of the former complaint made by the complainants against the company, (a) and deponent believed that the regulations so made and the scales of rates so fixed as aforesaid for the carriage of coal do bona fide carry into effect the said injunction: That, from the 1st of May, 1857, the company, their agents and servants, had altogether absolutely desisted from giving an undue preference to any person or persons whatsoever for or in respect of the carriage of coals on their railways, and that the company had from that day carried coals for the complainants on equal terms with all persons whatsoever, having due regard to the circumstances (if any) which rendered the cost to the company of carrying for the one

party less than the cost of carrying for *the other party: That *148] the districts mentioned in the regulations marked A. and B. respectively, and the other regulations referred to, were fixed and assigned by the traffic-manager, having regard to the quantity of coals carried along the lines of the company, and the places from and to which coals were carried, at the time of the revising of the said scale of rates, and also having regard to the consumption of coal which would be required for the use of the population of the several places comprised within the districts mentioned in the said regulations; and that the said districts had not been fixed or assigned or the said regulations for the conveyance of coal made to give any undue preference or advantage to any persons whatever, or to give any undue preference or advantage to landborne coal over seaborne coal, or of preventing the complainants from dealing at the several places at which they so deal as aforesaid, or of excluding seaborne coal from those places, or of interfering with the trade of the complainants, for that, by the revised scale of rates, the profit accruing to the company for the carriage of a given quantity of seaborne coal from Ipswich to the several places at which the complainants so deal in coal, is greater than for the carriage of the same quantity of landborne coal from Peterborough to those places: That the cost to the company of the carriage of large quantities of coals for long distances is proportionately less per ton per mile than the cost of the carriage of small quantities for short distances, and consequently the profit to the company is greater per ton per mile for the carriage of large quantities for long distances than for the carriage of small quantities for short distances, and therefore that the company can afford to carry coal for long distances at a less rate per ton per mile than they can afford to carry coal for short distances. The affidavits, after enumerating the *several places, with the amount of their population respectively, *119] whose supply of coal was derived from the several stations within

the districts mentioned in the regulations marked A. and B., proceeded to allege, that there are circumstances which render the cost per ton (a) See In re Ransome and The Eastern Counties Railway Company, 1 C. B. N. S. 437 (E. C. L. R. vol. 87).

per mile to the company of carrying coal from Peterborough to the places in the district No. 8, mentioned in the paper marked A., less than the cost of carrying coal for the complainants from Ipswich to the said places, and that there is such a difference of cost as to justify such a difference of charge as mentioned in the complainants' affidavit, because the distance from Peterborough to the places to which the complainants trade are as follows, that is to say,-from Peterborough to Thurston, 78 miles,-to Mellis, 95 miles,-to Stowmarket, 88 miles,to Needham Market, 92 miles,-to Hadleigh, 113 miles,-to Elmswell, 83 miles,-to Bury St. Edmunds, 74 miles,-to Diss, 98 miles,-whereas, the distances from Ipswich to the places at which the complainants trade are as follows,-to Thurston, 23 miles,-to Mellis, 23 miles,-to Stowmarket, 13 miles,-to Needham Market, 9 miles,-to Hadleigh, 13 miles, to Elmswell, 18 miles,-to Bury St. Edmunds, 27 miles,-to Diss, 27 miles; because the cost to the company of the carriage of coal for long distances is proportionately less than the cost of the carriage of coal for short distances. The affidavits then went on to allege that the cost to the company of getting ready a coal-train of 35 trucks or 200 tons alone, is about one-half the cost to them of carrying a similar coal-train a distance of 100 miles, and that the cost to the company of carrying a similar train of coals the distances hereafter mentioned is as follows, viz. for a distance not exceeding 10 miles, 55/100ths of the cost of carrying coals in a similar train a distance of 100 miles,--for a distance not exceeding *20 miles, 60/100ths,-for a distance not

exceeding 30 miles, 65/100ths,-for a distance not exceeding 40 [*150

miles, 70/100ths,-for a distance not exceeding 50 miles, 75/100ths,— for a distance not exceeding 60 miles, 80/100ths, for a distance not exceeding 70 miles, 85/100ths,-for a distance not exceeding 80 miles, 90/100ths,-for a distance not exceeding 90 miles, 95/100ths; that the rates charged by the company in the scales referred to for the carriage of a coal-train of 200 tons the distances hereafter mentioned, are as follows, viz. for a distance not exceeding 10 miles, 28/100ths of the charges for carrying coals in a similar train a distance of 100 miles,— for a distance not exceeding 20 miles, 40/100ths,-for a distance not exceeding 30 miles, 54/100ths,-for a distance not exceeding 40 miles, 62/100ths, for a distance not exceeding 50 miles, 78/100ths,-for a distance not exceeding 60 miles, 86/100ths,-for a distance not exceeding 70 miles, 92/100ths, for a distance not exceeding 80 miles, 96/100ths, for a distance not exceeding 90 miles, 98/100ths; and that, from a comparison of the above results, it appeared that the charges. made by the company for the carriage of coals in train-loads of 200 tons from Peterborough to the places at which the complainants trade, was greater in proportion to the cost to the company of the carriage of coals in such trains, than were the charges made by the company for the carriage of coals in such trains from Ipswich to the places at which the complainants trade, in proportion to the cost to the company of the carrying of a similar coal-train from Ipswich to those respective places, and consequently that the profit to the company upon carrying coals in such trains from Peterborough to the last-mentioned places, was greater than the profit to the company upon carrying coals in such trains from Ipswich to the last-mentioned *places; and thus, so far

[*151

from the scale of rates set out in the papers marked A. and B., and the other regulations referred to, tending to destroy the complainants' trade in coals, such scales of rates were more advantageous to the complainants, as compared with the cost to the company, than is such scale of rates as aforesaid to the persons trading in coals from Peterborough: That it was not true that the difference between the rates charged for the carriage of seaborne coals from Ipswich to the several places before mentioned, and those charged for the carriage of landborne coals from Peterborough to the same several places, tended to create a monopoly in the trade in coals in favour of landborne coals, inasmuch as the complainants, residing at Ipswich, and, on account of their local and geographical position, nearer to the said several places at which they trade, have an advantage over the traders in landborne coals to and at the same several places from Peterborough, since the gross cost of the carriage of such landborne coals from Peterborough to Bury St. Edmunds, the nearest of the said several places from Peterborough, is 48. 3d. per ton (in the owners' wagons or trucks), while the gross rate of charge from Ipswich to Bury St. Edmunds, the farthest of the said several places from Ipswich, is only 28. 5d. per ton: And that the scale of rates for the carriage of coals since the 1st of May, 1857, charged on the principle of proportionably lowering the rates for a larger than for a shorter distance, tended greatly to the advantage of the public, in extending the area of the supply of coal, and in diminishing the cost of coal to the consumer.

It was insisted, on behalf of the company, that the above affidavits completely negatived any intention on their part to evade or disregard the injunction of the court on the former occasion; that the arrangement

*of districts was shown to have been bonâ fide made, partly with *152] a view to the convenience of the company themselves, and partly with a view to the benefit of the neighbouring places, and without any intention to prejudice or interfere with the trade of the complainants; that it was absolutely impracticable to frame a scale of charges so as to avoid the imposition of some disadvantage upon particular individuals; and that the difference of cost to the company had already been recognised,-in Ransome's Case, 1 C. B. N. S. 437 (E. C. L. R. vol. 87), and in Oxlade's Case, 1 C. B. N. S. 454,—as a justifiable ground for making differences of charge.

Byles, Serjt., and T. Jones, in support of the rule.-The districts have evidently been studiously adjusted and arranged for the express purpose of prejudicing the complainants; for, the result is, that, in order to enable them to have their coals carried at the lower rate, they must send a separate train-load of 200 tons into each of the three districts,which is a greater quantity than their trade at the several places therein demands; whereas, the same arrangement places all or nearly all the places at which the Peterborough dealers trade in one district, and so gives them an advantage which is withheld from the Ipswich dealers. Then, the rates charged for the carriage of coal from Ipswich are out of all proportion higher than those charged for the carriage of coals from the contrary direction, as appears from the comparative scales of charges at p. 145. The only answer which is offered to this part of the complaint, is, that there are circumstances which justify the difference