conveyance, it would be absolutely impossible to comply with the 93rd section; but that section has been a subject-matter of decisions, and it has been decided that the word "tolls" in that section does not include charges made by a company when they are carriers. The cases that I refer to are Garton v. Bristol and Exeter Co., 30 L. J. (Q. B.) 273, p. 293, and Scottish Northeastern Ry. Co. v. Anderson, 1 Court Sess. Cas. 3d Series, 1056. That seems to me to show that the view we take is the correct view; that the two sets of charges-tolls, and charges as carriers-are two distinct things throughout the whole Act, and as far as I can make out, throughout all the Acts. I have looked through the Act of 1868 also, and I do not find anything whatever to show that the view I am now taking of the 51st section is incorrect. It is said that the interpretation clause, s. 2, of the Act of 1845, shows what is meant by the word "toll." "The word 'toll' shall include any rate or charge or other payment payable under the special Act, for any passenger, animal, carriage, goods, merchandise, articles, matters or things conveyed on the railway." It is only the conveyance, and having regard to s. 93, no doubt the legislature thought it right to limit the charge for tolls properly so called, but they could not specify and fix a reasonable charge for all the charges made as carriers. The thing was impossible; and therefore, bearing in mind the two characters in which this company acts, it seems to me that the construction we put upon the 51st section will enable the Commissioners to decide the matters in difference between the parties, and to give a reasonable charge for all those matters which we think are incidental to the duty-mind, the duty and business of carriers, as well as those other matters which I think may be charged for, whether they are carriers or not, namely, to repeat it once more, the loading, covering, and unloading, as distinguished from the business of carriers.

As to the questions put to us by the Commissioners, I do not think we can answer them categorically. The first question of course we can answer-whether they have power to state a special case under s. 15. We are agreed that they have the power to state a case. (2) "Whether the statutory maximum rate of charges for the conveyance of goods in the company's Act of Parliament, 26 and 27 Vict. c. ccxviii., includes all charges which the company are authorized to make for station accommodation, use of sidings, weighing (when such weighing is not done at the request of the consignor, owner, or consignee of the goods), checking, clerkage, watching, and labelling, or for any, and if any, which, of the said matters." It seems to me that we must leave that to the Commissioners. They have to ascertain what is done. within the exception, and to allow a reasonable charge for it; but we have decided what we think comes within that exception. Therefore, I think, we cannot categorically answer every one of

·

those questions. The Commissioners must adopt our construction of that section and allow a reasonable charge for what is done by the company as carriers, including loading, covering, and unloading. The third question is: "Whether loading' and 'unloading' in the 51st section of the company's said Act include any, and if any, what portion of station accommodation other than appliances expressly provided to accomplish the same work as would otherwise be performed by manual labor." There again, I think "loading" and "unloading" include, no doubt, everything that is necessary for loading and unloading, but I certainly am of opinion that they must give much more effect to the latter part of the 51st section, as to the duty and business of a carrier, which clearly includes delivery and collection, because it says "and any other." Therefore they must apply that section in the way that we think it ought to be applied.

Then the last question is: "Whether the words 'any other service incidental to the duty or business of a carrier' in the 51st section of the said Act comprising the providing station accommodation or sidings and the weighing, checking, clerkage, and labelling of goods, or any, and if any, which of the said matters." That question, I think, we may answer in the affirmative: "Any other service incidental to the duty or business of a carrier," does comprise providing such station accommodation and such sidings, and such weighing, checkage and labelling as is incidental to the duty which they undertake, of collecting and dealing with the goods as carriers. I do not think we can answer the questions put to us by the Railway Commissioners more specifically than that.

Macdonell.-I do not gather exactly from your Lordships' observations whether in your judgment you think that providing the station itself is a terminal service?

MANISTY, J.-Certainly. I have said that in my opinion-and I am not sorry that you mention it again-some goods station is indispensable to carry on the business of a carrier. The railway company could not do it without.

Hunter asked for leave to appeal. Special leave is necessary. It is under the 45th section of the Judicature Act.

MANISTY, J.—I have some doubts about it; but if we have the power to give leave you may have it.

Macdonell referred to the provisions in s. 26 of the Act of 1873, that the court may "remit the matter to the Commissioners with the opinion of the court thereon or may make such other order in relation to the matter and may make any such order as to costs as to the court may seem fit, and all such orders shall be final and conclusive on all parties."

"

MANISTY, J.-We reverse the decision of the Railway Commissioners giving judgment for the applicants, and remit it back with our opinion; and I think we ought to give the costs of this case to the company.

Macdonell.-Supposing that your Lordships have power to grant leave to appeal; would you grant it upon the condition that the apppellant should be at liberty to refer to the evidence in Kempson v. Great Western Ry. Co., as has been done in this court?

MANISTY, J.-There is quite sufficient evidence in this case to show what the practice was.

WILLS, J.-It will make no difference; but this judgment does not intend to refer to the evidence in Kempson's case.

Norton, Rose, Norton & Co., solicitors for appellants.
Neish & Howell, solicitors for respondents.

MURRAY et al.

v.

GULF, COLORADO AND SANTA FE R. R. Co.

(63 Texas, 407.)

Construing art. 4257, Rev. Stat. of Texas, held, that a railroad has the right to charge for the carriage of any quantity of freight less than one hundred pounds the same amount which it is entitled to charge for one hundred pounds; one hundred pounds being the unit fixed by the statute.

The statutory remedy for overcharge in freight afforded by art. 4258, Rev. Stat., is not exclusive, but cumulative, and he who would recover the penalty provided by it must bring himself clearly within its terms.

A pleading will be construed most strictly against the pleader.

APPEAL from Burleson. Tried below before the Hon. I. B. McFarland.

Suit brought in the district court of Burleson county February 7, 1883, by appellants, to recover for appellee, under articles 4257 and 4258, Revised Statutes, the penalty prescribed for excessive charges made by appellee for the transportation of freight. The petition specified fourteen instances of excessive charges, in so many counts, demanding the penalty in each case.

It set forth that the charges complained of were made for the transportation of freight by appellee from Galveston to Caldwell, a distance of one hundred and fifty-eight miles, and that the maximum charges permitted by law for such transportation was fifty cents per hundred pounds per hundred miles, or seventy-nine

cents per hundred pounds for the one hundred and fifty-eight miles. The first count complained of was a charge made January 6, 1883, of thirty-nine cents for freight on one keg of powder, weighing thirty pounds, and the amount demanded and received therefor, when the proper maximum charge permitted by law was only twentythree seven-tenths cents. The other counts complained of similar charges for like services on subsequent shipments.

The petition states that defendant "is indebted to plaintiffs $500 in the nature of a penalty," under article 4257 and 4258 of the Revised Statutes of Texas, and reiterates this statement as to each of fourteen separate claims; and after stating the distance from Galveston to Caldwell by defendant's railroad, one hundred and fiftyeight miles, and the maximum charge allowed by law for freight thereon to be fifty cents per one hundred pounds per one hundred miles, states the various articles shipped from Galveston to Caldwell, with dates and weights thereof, charges made, and the lawful charges which could alone be made, as follows:

There were many other like items.

The averments were that these prices were demanded by defendant, who refused to deliver unless same were paid, and plaintiffs were compelled to pay, and did pay, the same, when defendant was bound to carry for the lesser sums; that the charges were made with knowledge of the law and with intent to injure plaintiffs. The defendant demurred to the petition, among other grounds: 1. Because the statute under which the action was instituted had been repealed.

2. Because the petition did not state a cause of action against defendant or what it is called upon to defend.

The court sustained defendant's demurrer, and plaintiffs declining to amend, the petition was dismissed.

The judgment recites that the demurrer "is well taken on the grounds urged, to wit: 1. That under the law the defendant has the right to charge for carriage of any quantity of freight less than one hundred pounds the same as it may charge for one hundred pounds; one hundred pouuds being the unit fixed by the statute. "2. That the act of April 10, 1883, is a repeal of the law under

22 A. & E. R. Cas.- 30

which this action was instituted, and that the right of action fell with the repeal of the law."

Ford & Taliaferro and W. K. Homan for appellants.
Ballinger, Mott & Terry for appellee.

FACTS.

DELANY, J. C. A.-Article 4256 of the Revised Statutes limits the fare to be paid by passengers on our railroads to five cents for each mile or fraction of a mile. Article 4257 is as follows: "Railroad companies may charge and receive not exceeding the rate of fifty cents per hundred pounds per hundred miles, for the transportation of freight over their roads, ... provided that when the distance from the place of shipment to the point of destination of any freight is fifty miles or less, a charge not exceeding thirty cents per hundred pounds may be made for the transportation thereof."

Article 4258. "Any railroad company which may violate either of the two preceding articles shall forfeit and pay to the person injured thereby the sum of five hundred dollars, to be recovered before any court having jurisdiction of the amount, in the county through, or into which, the passenger or freight may have been transported."

What is the meaning of the words "not exceeding the rate of fifty cents per hundred pounds per hundred miles?"

"RATE" CUSSED.

Appellants insist that the word "rate" is used in the sense of DIS proportion, and that it applies to freights weighing less than one hundred pounds, as well as to those weighing more. According to their view of the statute, the railroads must carry fifty pounds of freight one hundred miles for twenty-five cents, twenty-five pounds for twelve and a half cents, and one pound for half a cent. They present the argument thus: "If a hundred pounds is taken as the unit of weight, one hundred miles must be taken as the unit of distance; and if the same amount may be charged for one pound as for one hundred pounds, the same amount may be charged for one mile as for one hundred miles; therefore the same amount may be charged for carrying one pound one mile as for carrying one hundred pounds one hundred miles, which is unreasonable."

Admit the force of all this, yet the doctrine contended for by the appellants will lead to results equally unreasonable. Let us see. Appellants would have the railroads carry one pound one hundred miles for half a cent; fifty miles for one fourth of a cent; twentyfive miles for one eighth of a cent, and when we get down to one mile the compensation would be too small to be discovered by the naked eye. These matters appear to us too minute to be made the subject of statutory regulation. It is certainly a rather startling proposition to say that the legislature intended to impose a penalty of $500 upon a railroad company for an overcharge of one-hun