the complainant or other merchants who might not have such private agreements with the company for the carriage of the same description. of goods on the same portions of their line of railway: That the said North Eastern Railway Company refused to provide for the complainant, as a coke and coal merchant, depots for depositing or for receiving his coal and coke at the different stations on their line, in like manner that they did for those merchants who had a private agreement with the company: That the said company, by themselves or by their agents, made arrangements or agreements with certain coal and coke merchants or owners, to consign all the coal and coke belonging to them to the company, or their agents, at a certain fixed price, or otherwise; and the company would not provide depots at their stations on their said line of railway for receiving the coal and coke belonging to the complainant and other merchants who traded on their line of railway, and who declined to consign coal and coke to the said company or their agents, in the same manner or on the same terms as they provided depots for the coal and coke of those coal and coke merchants or owners who consigned their coal and coke to the *company or *458] to their agents at a fixed price or otherwise, and would not and did not afford to the complainant and such other coal and coke merchants as aforesaid the same facilities for the receiving and forwarding and delivering of their goods and traffic upon and from their said line of railway, as the company afforded to such coal and coke merchants or owners who consigned their coal and coke or traffic to the company or their agents as aforesaid, but subjected the complainant and such other merchants as aforesaid, and his and their coal and coke and traffic, to an undue and unreasonable prejudice and disadvantage in respect thereof, and in respect of the receiving and forwarding and delivering of his and their said coal and coke and traffic upon and from their said line of railway: That the said North Eastern Railway Company would not provide and refused to provide the complainant (being a merchant trading on the Midland line of railway as well as on their own line of railway, and not having entered into any private agreement with the said company, and declining to consign his coal and coke to them or to their agents) with wagons or carriages or trucks for the conveyance or carriage of his said coal and coke, or for forwarding the same upon their said line of railway; and the said North Eastern Railway Company refused to receive, convey, carry, forward, or deliver for the complainant (being such merchant as last aforesaid) his said coal and coke upon and from their said line of railway, and, in consequence thereof, he was unable properly to carry on his said trade, or to supply his customers with coal and coke. [The affidavits then set out certain correspondence between the complainant and his solicitors with certain agents of the company, relative to the alleged causes of complaint.]

Byles, Serjt., and J. Addison, in Hilary Term, 1856, showed cause,

[*459

upon the affidavits of the general traffic *manager and the secretary and general manager of the company. The former was in substance as follows:-The North Eastern railway comprises the main line of railway, which, leaving the North British railway, with which it is united, at Berwick, passes through the counties of Northumberland and Durham, and is there continued forward direct to York, from whence it proceeds southwards, and, dividing into two main lines at a station called Burton Salmon, joins the Midland railway in the parish of Altofts, in the county of York, about one mile north of Normanton, and the Lancashire and Yorkshire railway at or near Knottingley, in the said county, which last-mentioned railway extends about ten miles further southwards from Knottingley to a place called Askern, where it unites with the Great Northern railway. There are numerous branch railways in each of the said counties of Northumberland and Durham and York which form part of the North Eastern railway, and many of those which are in Durham have been constructed principally in order to afford to the owners or lessees of many of the collieries or coal-pits and coke-ovens which have been sunk or erected in that county, the means of transit by railway for their coals and coke, either to the said main line of railway, and thence to the places of consumption, or to the places of shipment of such coals and coke on the east coast. Some of the said branch railways communicate directly with collieries or coke-ovens situate upon or immediately adjoining them, and in other instances the means of access to the collieries or coke-ovens from such branch railways is by other public lines of railway, or by private branch railways or tramways constructed for that purpose by the owners or lessees of particular collieries or coke-ovens. The North-Eastern Railway Company have also constructed at many of the stations along their railway, but not at all of them, coal depots or cells, as places of [*460 *deposit for the coals which might probably be required by the district or locality where or near where such depots have been built. Such depots consist of separate cells, which are necessarily of limited and varying number and size, depending mainly upon the situation and probable estimated wants of the neighbourhood, and are so constructed as that the coal wagons may be readily pushed or hauled along a short siding or branch line passing over them; and the particular class or description of coal to which each cell is appropriated is then shot down from the bottom of the wagon containing it into its proper cell; after which, the empty wagon is returned to be re-loaded. The North Eastern Railway Company do not deal in or sell, and never have, either by themselves or by their agents or servants, directly or indirectly dealt in or sold, on their own account, coals at any of their stations or depots; neither do they require or have they required or made agreements or arrangements with any coal or coke-owners to consign all or any of the coal and coke belonging to any such owners, to them (the

company) or their agents, at a certain or at any fixed price; but, on the contrary, the company have wholly abstained from any such conduct. The North Eastern Railway Company having only such limited and varying number of coal depots or cells as aforesaid at their respecttive stations, have from time to time appropriated such cells to or for such of the different particular sorts or qualities of coal brought on to their railway as seemed most needed by, or best suited to the wants of, each particular locality or place, and have let such cells accordingly to the owners or lessees of the collieries or coal-mines producing such respective descriptions of coal, as a place for the deposit thereof, and from whence the same may, as required by the public, be loaded and removed. Except at York, Hull, and Selby, at which places the demand for coal is *extensive, the North Eastern Railway Company *461] do not allow any of the colliery owners occupying a cell or cells at any of their stations to have a separate agent or agents at any such station for the sale of their coal; and, at the stations at York, Hull, and Selby, the company allow only a limited number of persons to act as agents for all the owners or lessees of collieries sending coal for sale thereat. These arrangements and restrictions are necessary, partly in consequence of the limited demand for coal at the smaller stations, and at them and the stations at York, Hull, and Selby also in consequence of the great inconvenience which would result from having several agents, whose interests would be necessarily conflicting, at such places, and the necessity on the part of the company of keeping their coal depots, and the yards within which the same are placed, in proper order, and under proper control, and free from confusion and disturbance ; with which objects, the said company appoint at each such smaller station some one person on whom they can rely as the general agent for each and all of such colliery owners using the coal-cells thereat; by which agent each and all of the public are supplied with whatever quantity they may require of any of the particular qualities of coal brought to such station, at such price as the owner of the colliery producing the same may from time to time fix and direct to be demanded; each and all of such owners being at full liberty to fix, and in no way whatever restricted or prevented by the said company from fixing, such price for his coals as he thinks proper, and employing or having whatever number of persons or agents he or they may think proper for the sale of his or their coals elsewhere than at the said depots, and either in the immediate neighbourhood thereof or in or through the districts into which his coals may be brought or sent for sale. The several *462] agents so appointed by the company *do not sell any of the said coals for or on behalf of such company, or as the agents thereof, but only on behalf of and as the agents for the respective owners of the several collieries the coals from which are brought to each such station for sale; and each of such agents accounts directly to each of such

owners for whatever quantity of his coals may have been sold by such agent, and sends orders to the proper officer of the company for further supplies thereof from time to time when and as required, in order to keep up a constant supply to meet the demand for each quality of coal, which orders are thereupon transmitted to the respective collieries to which the same relate, the proceeds being remitted by such agent direct to the colliery owners entitled thereto, or to their agents. The North Eastern Railway Company are not, and never have been, common carriers of coals or coke, but have always refused, and still refuse, to become such, or to undertake the carriage thereof as common carriers, or otherwise than under terms or arrangements to be from time to time entered into by them with each particular owner or lessee of a colliery or coal-pit and coke-ovens adjoining their railway, or with which the same communicates as aforesaid, and with each railway or other company or person who may be desirous of having coals transmitted thereby; but, occasionally, purchasers of coals in considerable or specified quantities have been accommodated by having a certain quantity of coal conveyed specially for them: such practice has, however, been found to be productive of much inconvenience, and detention of wagons, and has therefore been discontinued. Many of the colliery owners provide their own wagons, particularly such as are used for the transit of coals for shipment; but the company have also a stock of wagons of their own, and particularly of those which are used for transit upon their main line of railway: They also provide locomotive *power for hauling the same. Other railway companies with [*463 whose railways the railway of the North Eastern Railway Company communicates either directly or by means of intermediate lines, also provide wagons for the carriage of coals and coke to the districts through which such railways pass; and such wagons, if properly constructed, are allowed to pass over and along the North Eastern railway directly to the collieries and coke-ovens. The supply or number of coal and coke wagons belonging to the North Eastern Railway Company is necessarily limited, the cost of providing the same being very considerable, and the said company not being common carriers of such articles, and declining to become such, and only providing wagons to such extent as they think prudent. The coal wagons of the North Eastern Railway Company are principally employed upon their own lines in conveying for the owners or lessees of the different collieries aforesaid the coals required for the supply of the depots at the various stations upon the same. A large number of the company's coke-wagons are employed in conveying the coke required by them for the consumption of their own engines; and the remainder of such coal and coke-wagons are from time to time employed in carrying coals or coke for the owners or lessees of the collieries or coke-ovens aforesaid, or for other railway companies, or occasionally for private individuals or companies, to particu

lar localities, or are sometimes specially hired for given periods by particular individuals for their own trade, and appropriated and marked accordingly. Some of such coke-wagons were also at one time employed in carrying coke consigned to the order of Oxlade. The North Eastern Railway Company have fixed general rates of charge for the carriage of coal and coke upon their railway from all the collieries and coke-ovens *464] upon or adjoining their railway, and terms as to the use of *their wagons and depots, which general rates and terms are well known and apply to all owners and lessees of collieries and coke-ovens alike; and, if any party refuses to accede to or act up to such rates or terms, the company thereupon decline to carry any further quantity of his coal or coke in their wagons. It, however, constantly happens that the owners or lessees of a particular colliery or coke-ovens, or a particular railway company, are desirous of having their coals or coke carried at rates below the ordinary and general rates; in all of which cases the carriage of such coals or coke by the North Eastern Railway Company, and the supply of wagons for the same, if not provided by the colliery owners, is always the subject of a special contract or arrangement with each particular owner or lessee of a colliery or coke-ovens, or railway company, or the respective agents for the same; in which contracts or arrangements the North Eastern Railway Company invariably require, as the ground and inducement of their accepting such lower rates, that such special contracts or arrangements shall extend over a given period, and be so made as to insure the transmission of the coals or coke (the carriage of which is so specially contracted for below the general rates) with regularity of despatch and arrival, and the punctual return of their wagons from the respective places of their destination within a given number of days; the regular passage of such traffic over their railway in order to avoid interference with the general passenger and merchandise traffic thereon, and the constant employment of their wagons without loss of time by detention, being essential ingredients of each such special contract or arrangement, the non-adoption of which, or the omission to carry out the same, would prevent the proper and efficient working and management of the railway, particularly as a public main line of railway between the other great systems or main lines of public *railway to the north and south thereof. The applicant, Oxlade, *465] was formerly a station-master in the employ of the North Eastern Railway Company (then called The York, Newcastle, and Berwick Railway Company); and, after leaving them, he acted as, and represented himself to be, the agent for different collieries, and particularly for the West Belmont Colliery, and in that capacity he applied for and used a periodical ticket or pass over the said company's railway, upon the same terms as those issued to other agents for collieries, which passes are issued by the company at a certain modified or lower rate of charge than to ordinary persons, because the parties to whom they are granted are