said William Oxlade,-and. lastly, whether and in what manner and how the said company are enabled by reason of such difference of circumstances, so to carry such coals and coke for such other persons at a cost to the said company less than the cost of carrying coals and coke for the said William Oxlade. And it evidently appears, from *this *489] uncontradicted evidence, that, with the exception of the three agreements mentioned, there is one universal rate of carriage charged to every one, both on the local stations and on the through traffic, and is quoted alike to every one who applies for it.

The Master's report having been read, a discussion took place as to which side should begin; and, in the result, the court decided that the counsel for the company should be considered as showing cause, the report of the Master being treated as substituted for the materials upon which the motion was founded, and the argument being limited to the matters referred to the Master.

Byles, Serjt., and J. Addison, for the company.-All that the statute 17 & 18 Vict. c. 31, s. 2, prohibits, is, the giving undue or unreasonable preference or advantage to or in favour of any particular person or company, or any particular description of traffic, or the subjecting any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage. The statute which defines the duties of the company as to the imposition of tolls,-8 & 9 Vict. c. 20, s. 90,-provides that all such tolls "shall be at all times charged equally to all persons, and after the same rate, whether per ton per mile or otherwise, in respect of all passengers, and of all goods or carriages of the same description, and propelled by a like carriage or engine, passing only over the same portion of the line of railway under the same circumstances." Of the matters referred to the Master, all are disposed of by his report, except that which relates to the special agreements. It would be manifestly impossible for the company to provide depots for every coal merchant who might choose to carry coals on their line. *And if the complainant were allowed to unload his

*490] coals at every station as and when he pleases, the entire traffic

of the line would be stopped. The company are not, and do not profess to be, common carriers of coals: Johnson v. The Midland Railway Company, 4 Exch. 367.† The Master's report shows that they do even more for the accommodation of the public than they are bound to do. The complaint of excessive charges made to Mr. Oxlade, as compared with the charges made to the Great Northern Coal Company, is disposed of by the Master's report. All, therefore, that remains to be considered, is, that part of the rule which refers to the special agreements. These were for the carriage of coals and coke from the collieries and coke-ovens in large quantities and at stated periods. The company might, therefore, well be enabled to carry for those persons on terms somewhat more favourable, without being guilty of any breach of the duty imposed upon

them by the statute; and their so doing was clearly not giving a preference or advantage that could be considered as undue or unreasonable. In every trade it is the universal practice to make a difference in favour of one who deals largely. Upon this principle it is that return tickets and family tickets are issued by nearly all the railway companies. As to the company's refusal to permit their wagons to go beyond the limits of their line with Oxlade's coals, two answers may be given in the first place, they are not bound to travel out of their line; and, in the next place, their refusal was warranted by the conduct of Oxlade himself, who refused to pay the amount of demurrage for the detention of the wagons which was uniformly charged to all. The refusal to carry to Altofts is justified by the absence of accommodation at the place (which is a mere junction) for unloading. Upon the whole it is submitted that there is nothing in the Master's report *to sustain any part of the charge which has been made against the company.

[*491

Bovill (with whom was T. Jones), contrà.-The very object of the recent act was, to discourage monopolies. Various contentions having arisen between railway companies and persons for whom they carried, and the provisions of the special acts not having been found sufficiently stringent, see Pickford v. The Grand Junction Railway Company, 10 M. & W. 399;† Parker v. The Great Western Railway Company, 7 M. & G. 253 (E. C. L. R. vol. 49), 7 Scott, N. R. 835, and 11 C. B. 545 (E. C. L. R. vol. 82), and Edwards v. The Great Western Railway Company, 11 C. B. 588,-equality of charge was sought to be enforced by the 90th section of the 8 & 9 Vict. c. 20.(a) It was very soon found that this provision was inefficient to cure the evil; and that led to the passing of the 17 & 18 Vict. c. 31. The company are clearly guilty of an infraction of the provisions of that statute, if they give any undue or unreasonable preference or advantage to, or impose any undue or unreasonable prejudice or disadvantage upon, any particular person. That the company are common carriers of coals on their lines of railway, is clear from the cases of Palmer v. The Great Western Railway Company, 4 M. & W. 749,† and Johnson v. The Midland Railway Company, 4 Exch. 367.† Indeed, this case would not have been referred to the Master, unless the court had been satisfied that they are so. And Crouch v. The Great Northern Railway Company, 14 C. B. 255 (E. C. L. R. vol. 78), shows that they are even bound to carry beyond their own lines. As to the first point referred to the Master, it appears, that, although ample accommodation and facilities are afforded at every station for the unloading of coal and coke for certain persons to whom *the com[*492 pany choose to give a preference, none whatever are afforded to Mr. Oxlade. He is altogether precluded from obtaining coals by means of their railway. The only answer they give, is, that it is more convenient to them that he should buy his coals of their depot agent. Is that

N. S., VOL. I.-22

(a) Antè, p. 472.

to be tolerated? Then, as to the second point,-the terms of carriage, -the Master finds, that, with respect to the coals and coke carried by the North Eastern Railway Company in conjunction with the Great Northern, there is a saving of time and expense to the company which justifies the diminished charge. That Mr. Oxlade cannot fairly except to. But the case stands upon a totally different footing with regard to the three private agreements referred to. There is no difference between one colliery owner or coke merchant and another to justify this different treatment. [Addison.-The North Eastern Railway Company carry coals for no one off their own line. CRESSWELL, J.-Or contract to do so? Addison.-No.] The charge they make, is, for carriage of the coals and coke to the end of their line, and for the use of wagons beyond. With Mr. Pease,-one of the persons with whom they have a private agreement, they agree to carry to Normanton, which is some thirty miles off their line. [Byles, Serjt.-The company have running powers to Normanton.] The Master finds that the company charge to these three persons for the carriage of coke and coals to South Staffordshire, 28. a ton less than they charge Mr. Oxlade; and for this he finds no justification whatever. The excuse now set up is, that these contracts or agreements are made with colliery owners. But coke is a manufactured article: and colliery owners stand in no different position as to that than any other person. The carriers' cases already referred to show that the trade of the customer makes no difference. Then, it is said that, in these three instances, the contracts are for the *493] *conveyance of large quantities at regular times. To allow this argument to prevail would be to give effect to a monopoly of the large dealers. The courts have always repudiated the notion that carriers have any right to make a distinction in respect of quantity. In the case suggested of return tickets and family tickets, there is no preference given; all who choose to avail themselves of the regulation, are treated alike. With regard to the loading back, there is nothing in the report to show that there is any advantage to the company corresponding with the difference of charge. [CRESSWELL, J.-I observe that all the agreements are for the carriage of coals and coke over the whole of the North Eastern line and beyond it.] The company refuse to carry for Mr. Oxlade to the end of their line: they refuse to carry his coals and coke to Altofts. [CRESSWELL, J.-Nor is it reasonable that they should, under the circumstances stated in the report.] At all events, they are bound to carry on to Normanton, instead of stopping, as they do, at York, which is thirty miles short of it. The agreement with Barrat is, to carry from Ferry Hill to Altofts. The 2d section of the 17 & 18 Vict. c. 31, enacts that every railway company having or working railways which form a continuous line of railway communication, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways, by the other, without

any unreasonable delay, and without any such preference or advantage, or prejudice or disadvantage, as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways of the several companies, be at all times afforded to the public in that behalf. [CRESSWELL, J.-That part of the section which applies to the traffic as a continuous line refers to the company which is to carry *on. CROWDER, J.-Does it ap[*494 pear that the company have accommodation for unloading at Altofts?] They do not say they have not. [CROWDER, J.-It is for you to show a reasonable ground of complaint.] It is submitted that ground enough has been shown to induce the court to make this rule absolute. [CRESSWELL, J.-What is it that you ask us to order the company to do? When we are asked to order something to be done at the peril of an attachment for non-compliance with our order, I think it should be presented to us in precise terms.] Mr. Oxlade is entitled to have his rule absolute upon all the three points which have been made. [CROWDER, J.-Your argument materially qualifies what you ask by the rule.] Byles, Serjt., proposed to reply.

CRESSWELL, J.-You have already been heard upon the Master's report. We do not think there should be a reply.

Cur. adv. vult. CRESSWELL, J., now delivered the judgment of the court. This was a rule obtained by Mr. Oxlade, calling upon the North Eastern Railway Company to show cause why a writ of injunction should not issue against them, under the 17 & 18 Vict. c. 31, enjoining them to do various things: [His Lordship read the rule, as amended.]

When cause was shown against the rule, before the late Lord Chief Justice and my Brothers Crowder and Williams and myself, it was referred to the Master to inquire into four questions, and report thereupon to the court.

The questions so referred to the Master were,-first, whether any, and what, accommodation and facilities *are provided or afforded [*495 at any, and what, stations on the line of the said railway for the unloading of coal and coke, and for what persons, and under what circumstances, secondly, whether the company carry coals or coke for persons other than the said William Oxlade on any, and what, terms different from the terms on which the said company have carried, or have offered to carry, coals and coke for the said William Oxlade,-thirdly, whether there is any, and what, difference between the circumstances under which the said company have so carried coals and coke for such other persons, and the circumstances under which the said company have carried, or have offered to carry, coals and coke for the said William Oxlade, and, fourthly, whether, and in what manner, and how, the said company are enabled by reason of such difference of circumstances

so to carry coals and coke for such other persons at a cost to the said company less than the cost to the said company of carrying coals and coke for the said William Oxlade.

The report was made on the 21st of January, when my Brother Crowder and I were the only judges present,-a circumstance which we much regret, considering the novelty and difficulty of the matter which we are called upon to decide. Those matters were fully and ably discussed before us by counsel; and we have endeavoured to ascertain what we ought to do, in order to give effect to the statute on which the rule was founded.

The Master's report upon the first question was as follows-[His Lordship read it.]

*496]

This being the principle by which the company have been governed, we do not find, that, by the regulations made for carrying it into effect, -and which are fully detailed in the Master's report,-any undue or unreasonable preference or advantage has been given to or in favour of any particular person or company; nor has any particular person or company, or any particular *description of traffic, been subjected to any undue or unreasonable prejudice or disadvantage. This disposes of the fourth and last branches of Mr. Oxlade's rule, viz. those which call upon the company "to afford to the said William Oxlade the same facilities for the receiving and forwarding and delivery of his coals and coke upon and from the said railway, as the said company afford to persons who consign their coal or coke to the said company," and "to afford to the said William Oxlade all reasonable and proper facilities and accommodations for the unloading of his coals and coke at the various stations of the said company, and to afford to the said William Oxlade at the said stations the same facilities and accommodations for the unloading of his coals and coke, as the said company afford to colliery owners, or lessees of collieries, or to any other person."

The Master then states the circumstances relating to the carriage of coals by the North Eastern Company, which are conveyed forward from York on the Great Northern line, by that company: and we think that it is made out that such circumstances enable the company to carry such coals at a cost to them less than the cost of carrying coals and coke for Mr. Oxlade; and that it is not shown, that, by carrying them at a lower rate, any undue or unreasonable preference is given, or any undue or unreasonable disadvantage imposed.

This disposes of so much of the second branch of the rule as relates to carrying coals for persons for whom the same are also carried on the Great Northern railway.

The Master then proceeds to report upon the other part of that branch of the rule, viz. the charge made by the company for coals carried for persons with whom they have private agreements for the car