court held, so long ago as the case *of Parker v. The Great West*72] ern Railway Company, 7 Scott, N. R. 875, 7 M. & G. 253 (E. C. L. R. vol. 49), that the company, as common carriers, are bound to carry for all persons upon equal terms. [WILLIAMS, J.-That turned upon the construction of the company's acts. WILLES, J.-Is it not a question for a jury whether the difference of trouble, in the case of several parcels addressed to several different persons, does not justify a difference of charge?] In Crouch v. The Great Western Railway Company, 11 Exch. 742,† the Court of Exchequer held, that a railway company cannot legally charge a greater sum for the carriage of a package containing several parcels belonging to different persons, than for a package containing several parcels all belonging to one person. There, Martin, B., in a very luminous judgment, goes through all the cases bearing upon this question. He says: "The first case on this subject is, Pickford v. The Grand Junction Railway Company, 10 M. & W. 399.† That was a special case prepared by the parties, who wished to ascertain what the law was on the subject of packed parcels. Several packages had been made up by the plaintiffs, and tendered to the defendants, for the express purpose of having the law settled; and it was supposed that the decision on the questions then raised would have set the matter at rest. The case was argued on behalf of the company by the late Mr. Cowling (one of the most acute and able men ever at the bar); and the only additional risk which suggested itself to his mind was, that, by reason of goods belonging to different people being contained in one parcel, the

carrier might be liable to several actions at the suit of the different

*73] owners, instead of one action at the suit of a single owner. The court were of opinion that the plaintiff was entitled to judgment: and Baron Parke, in delivering it, read the following passage, which was not necessary for the decision of the case:-But then it is argued on the part of the defendants, that there really is an increased responsibility, arising from the simple fact that each parcel is the property of a distinct owner, because it is said that, in the event of a misdelivery, the company would be liable to several actions of trover, instead of one; and, even in case of loss or damage by neglect, each separate owner might maintain an action on the custom of England in respect of his own goods. It is very doubtful at least, whether, on the custom of England, separate actions could be maintained, as the relation of employer and carrier would not have subsisted between them and the company but between them and the plaintiffs. As actions of trover, however, could be maintained, it would not be unreasonable to allow some additional remuneration on account, not of the liability to pay greater damages, for they would be the same in both cases, but to pay the same damages by means of different suits. We are relieved, however, from the necessity of deciding what the precise amount of additional compensation (which at all events would be trifling) on this account should be, because it is admitted on the special case that the sum tendered is proper, unless the defendants had a right to charge for separate parcels,' &c. Now, that is the origin of all the controversy

"3. That the plaintiffs are entitled to recover back from the defendants the difference between the tonnage and the parcels-rate, paid under protest.

"4. That the plaintiffs are also entitled to recover from the defendants damages beyond such difference, for the trouble, expense, and annoyance to which they have been put, for the injury to their business, and for the infringement of their rights by the defendants."

which has taken place on this subject: and I listened at the trial, and have listened now, for any distinction to be pointed out between packed parcels and enclosures, except this; and I have heard none. The next case is that of Parker v. The Great Western Railway Company, 7 M. *& G. 253 (E. C. L. R. vol. 49), 7 Scott N. R. 835; and all that there passed having reference to this subject, was, that the court, [*74 in a deliberate judgment, decided that there was no distinction between carriers and other people. I agree with Mr. Clarke, that there is nothing in that case conclusive of the present: but, in a subsequent case of Parker v. The Great Western Railway Company, 11 C. B. 545 (E. C. L. R. vol. 73), this point was expressly raised by the fourth and fifth questions; and the court were of opinion that Mr. Parker, who stood in the same position as the present plaintiff, was entitled to recover. Maule, J., in distinct terms, says that there is no difference whatever between a parcel sent to an individual containing parcels belonging to a variety of people, and parcels sent to an individual, all the contents being his own. There is, therefore, an express decision of the Court of Common Pleas upon the very point now in controversy. But the misfortune is, that it does not seem to have occurred to the courts to call attention to what was thrown out in Pickford v. The Grand Junction Railway Company. In a case of Crouch v. The Great Northern Railway Company, 9 Exch. 556,† which was identical with the present, the counsel for the defendants treated the decision of the Court of Common Pleas as conclusive: and Parke, B., said, 'The Court of Common Pleas have already decided the point, and we are bound by their decision.' There is, therefore, the express decision of the Court of Common Pleas; and the only proper mode of raising the question again, is, by writ of error." Assuming, then, that the company are not justified in imposing upon a package the higher rate of charge because it is made up of several parcels, though addressed to several different persons,the question is, whether the mere fact of the parcels being delivered to and received from the company without being enclosed in one package, the person so delivering them to and so *receiving them from the [*75 company being the same, will justify the company in imposing an increased charge, because they happen to be addressed to several ultimate consignees, with whom the company have nothing to do. [WILLIAMS, J.-Is it not a question for a jury, whether the difference of trouble in separately weighing and entering the parcels so differently addressed will justify the difference of charge?] The directions on the parcels are not for the guidance of the company: and if they choose, for their own convenience, separately to weigh and enter each parcel, they have no right to make that a pretext for an extortionate charge. The 186th section of the company's act is conclusive.

Bovill, Q. C. (with whom was Holland), for the defendants. (a)—This

(a) The points marked for argument on the part of the defendants were as follows:"That the defendants were entitled under the provisions of their act set out in the special case, and under the circumstances therein stated, to adopt the mode of charging complained of "2. That the facts found show that no preference was, directly or indirectly, by such mode of charging, shown to the public or any other persons over the plaintiffs.

"3. That the facts found show that the benefit derived from the waiver by the defendants, in certain cases, of their right to charge parcel-rate upon separate packages, was shared alike by the public and the plaintiffs.

"4. That, even if the plaintiffs are entitled to recover 261. 9s. 5d., the amount of the alleged

company,

*76] which was originally *incorporated by the 6 & 7 W. 4, c. cvi., for the purpose of making a railway from London to Norwich, are empowered by s. 175 to demand and receive certain tonnagerates upon all articles, matters, and things carried upon or along the railway. The rates now in question have no connection with the tonnage-rates there mentioned. The 177th section empowers the company, if they shall think proper, to use and employ locomotive or other engines, or other motive power, and in carriages and wagons drawn or propelled thereby to carry and convey upon the said railway, &c., all such passengers, goods, &c., as shall be offered to them for that purpose, and to make such reasonable charges for such carriage and conveyance as they may from time to time determine upon, in addition to the tonnage-rate before mentioned. By s. 179, the company are empowered to provide and charge for locomotive engines or other motive power. The 182d section relieves the company, as to "small parcels," from the restriction imposed by s. 177; for, it enacts "that it shall be lawful for the said company from time to time to make such orders for fixing, and by such orders to fix, the sum to be charged by the said company in respect of small parcels not exceeding 1 cwt. each, as to them shall seem proper.' The plaintiffs rely upon the 186th section, which clearly applies to tonnage-rates, and not to small parcels: it provides and enacts "that the aforesaid rates and tolls to be taken by virtue of this act shall at all times be charged equally and after the same rate per ton throughout the whole of the said railway, in respect of the same description of articles, matters, or things, and that no reduction or advance in the said *rates and tolls shall either directly or indirectly be made par*77] tially or in favour of or against any particular person or company, or be confined to any particular part of the said railway, but that every such reduction or advance of rates and tolls upon any particular kind or description of articles, matters, or things, shall extend to and take place throughout the whole and every part of the said railway upon and in respect of the same description of articles, matters, and things so reduced or advanced, and shall extend to all persons whomsoever using the same, or carrying the same description of articles, matters, or things thereon, anything to the contrary thereof in anywise notwithstanding.' [BYLES, J.-Is not the provision in the general act, the Railways Clauses Consolidation Act, 8 & 9 Vict. c. 20, s. 90,--incorporated with the local act?] No: only as to the extension acts. (a) Besides, the acts.(a) general act was found, in practice, so far as this question is concerned, to be a dead letter. [CROWDER, J.-The giving undue preferences is now restrained only by Mr. Cardwell's act, 17 & 18 Vict. c. 31, s. 2.] That act merely gives power to this court to afford relief by injunction, but does not enable the party aggrieved to recover back the tolls charged in excess. [CROWDER, J.-There is a positive prohibition.] overcharges, they are not entitled at law to any special damage, upon any of the grounds alleged in the declaration; but that they can only recover in this action the amount of the said overcharges.

"5. That, even if the mode of charging be held to be incorrect, still the facts found negative the averments in the first and second counts of the declaration, that the defendants wilfully and maliciously intended to injure the plaintiffs, to destroy their said business, and diminish their said profits, and to create and establish for themselves, the defendants, a monopoly of the business of carriers from London to Norwich and from Norwich to London."

(a) See 7 & 8 Viet. c. lxxxv., 8 & 9 Vict. c. xcvii., 9 & 10 Vict. c. liii., 9 & 10 Vict. c. cclxxx.

Not under a penalty. [WILLIAMS, J., referred to Stevens v. Jeacocke, 11 Q. B. 731 (E. C. L. R. vol. 63). WILLES, J.-The 6th section of the 17 & 18 Vict. c. 31, is decisive of this matter: it enacts that "no proceeding shall be taken for any violation or contravention of the above enactments, except in the manner herein provided; but nothing herein contained shall take away or diminish any rights, remedies, or privileges of any person or company against any railway or canal or railway and canal company under the existing law."] The judgment of this *court in Parker v. The Great Western Railway Company, [*78 7 Scott N. R. 835, 7 M. & G. 253, leaves this still an arguable point. Under the Railway Traffic Act, 17 & 18 Vict. c. 31, the court has on more than one occasion recognised the right of the company to make a difference in their charges where it is shown that there is a difference in the cost of carriage to the company see Ransome v. The Eastern Counties Railway Company, 1 C. B. N. S. 437 (E. C. L. R. vol. 87); Oxlade v. The North Eastern Railway Company, 1 C. B. N. S. 454. All these acts are in pari materiâ; and the whole course of the legislation upon the subject shows that these provisions for equal charges. were intended to apply to the tonnage-rates only, and not to the charges imposed by railway companies as carriers: and therefore, it is submitted, the 186th section of the 6 & 7 W. 4, c. cvi., has no application here. It is hardly necessary to refer to the common law rights of carriers. Parker v. The Great Western Railway Company was decided upon the construction of the acts relating to that company, which are altogether different from the act in question. [WILLIAMS, J.--In Smith's Leading Cases, 4th edit. 174, speaking of the liabilities of carriers, it is said that "the hire charged must be no more than a reasonable remuneration to the carrier, and, consequently, not more to one (though a rival carrier) than to another, for the same service:" but all the authorities cited are railway cases. (a) BYLES, J.--I know no common law reason why a carrier may not charge less than what is reasonable to one person, or even carry for him free of all charge. The 186th section of the act seems to be a mere proviso on the [*79 185th section, which enacts "that it shall be lawful for the said company, from time to time, as they shall think fit, to reduce all or any of the rates, tonnages, tolls, or duties by this act authorized to be taken, and to take the reduced rates, tonnages, tolls, or duties, and afterwards from time to time again to raise the same or any of them, and to take such higher rates, tonnages, tolls, or duties, so that the same respectively shall not at any time exceed the amount by this act authorized."] So far as the act is concerned, there is nothing to disentitle the company to charge any sum they please in respect of small parcels, however unreasonable and there is nothing in the special case to show that any preference is given to any one as against the plaintiffs. [WILLES, J.If the statement of facts does not imply a preference as against Messrs. Pickford & Co., there is an end of the case. It had better be amended by averring that in point of fact packages under similar circumstances

(a) Pickford v. The Grand Junction Railway, 10 M. & W. 399,† Parker v. The Great Western Railway Company, 7 Scott N. R. 835, 7 M. & G. 253 (E. C. L. R. vol. 49), Parker v. The Bristol and Exeter Railway Company, 6 Exch. 702,† Crouch v. The Great Northern Railway Company, 9 Exch. 556,† Parker v. The Great Western Railway Company, 11 C. B. 545 (E. C. L. R. vol. 73), and Edwards v. The Great Western Railway Company, 11 C. B. 588.

never were brought by any one else.] It certainly was not intended to be inferred from the statement of the case that the rest of the public would be charged at a rate different from that charged to the plaintiffs, under the like circumstances. But, assuming that the 186th section does apply, and that the company are bound to charge equal rates for carriage to all persons, that must mean where the circumstances are alike. It appears, that, where a number of small parcels (each weighing less than 1 cwt.) are brought to the railway by one party,-and consigned to one party,-whether loose or packed, so that one weighing and one entry will suffice for the whole, and one responsibility only be incurred, they are carried at the lower rate of charge. But, what do

the plaintiffs do? They take to the *terminus in London one

*80] hundred parcels, directed to one hundred different persons, at Norwich, with nothing upon them to indicate that they are consigned to the plaintiffs. The company are necessarily obliged to weigh and enter each of these parcels separately: whereas, if they were all packed or tied together, and addressed to one person, one weighing and one entry would suffice. It is said that this weighing and entering is for the company's own convenience, and ought not to be made a pretext for increasing the charge. But, suppose, on their arrival at Norwich, the plaintiffs demand the hundred parcels, and ninety-nine only are produced, how is the hundredth parcel to be accounted for or traced unless the company keep an account of the particulars and weight of each? The account annexed to the case shows the amount of trouble that is imposed upon the company by this course of dealing. [WILLES, J.-Is the excess charged here more than a reasonable equivalent for the extra trouble occasioned to the company?] Assuming it to be unreasonable, the plaintiffs are clearly not entitled to recover it back. [WILLIAMS, J.-I do not see how we can be called upon to say that there is anything unreasonable, under the circumstances, in the difference of charge.]

note.

C. Pollock, in reply.-Pickford & Co. are both consignors and consignees; and each delivery of parcels is accompanied by a consignment The circumstance of an ulterior destination appearing upon each parcel, is utterly immaterial as between the plaintiffs and the company; for, they incur no responsibility to any other person than those who employ them to carry.

WILLIAMS, J.-I am of opinion that the defendants are entitled to our judgment. I was at first under the *impression that the parcels

*81] in question had something on the face of them to show that they

were consigned to Pickford & Co. But, when the facts come to be known, it seems to me that we are not called upon to trouble ourselves with the construction of the 186th section of the 6 & 7 W. 4, c. cvi., or to inquire whether or not it applies to parcels or packages under 1 cwt. There is no evidence upon the face of the special case from which the court or a jury could come to the conclusion that there has been any inequality in the charges for carriage made to the plaintiffs as compared with other persons having goods carried under the like circumstances. It appears that the company charge a higher rate for the carriage of several parcels addressed separately to several different persons, than they charge for the same parcels if all addressed to one consignee. I see nothing unreasonable in that. Where a number of parcels are directed to a