servants to exclude him: That it is highly necessary for the proper working and management of the traffic upon the said railway, and for the avoidance of discomfort and inconvenience to the passengers travelling upon the said railway, that the admission of public conveyances to the stations of the company, and their proper regulation while in the station yards, should be under the entire control of the company and their officers, for the purpose of enabling the company to regulate the charges to be made by the proprietors of the said public conveyances, and for preventing unseemly rivalry between such proprietors of public conveyances, to the *annoyance of the passengers travelling upon the *505] railway, and that this control is particularly needed at the Kingston station, not only from its vicinity to London, and the number and respectability of its inhabitants, but also from its proximity to Epsom race-course, and the necessity of duly regulating the great increase of traffic to and from the said station at the periodical occurrence of such races: That there had been from time to time, and there was, an omnibus running between the said Kingston station and Kingston and Norbiton, of which one John Williams was the proprietor: That the omnibus accommodation at the Kingston station provided by Williams was ample and sufficient for all the present traffic to and from the said station: That, by the terms of an arrangement made between the company and Williams, the latter was bound to find and provide any additional omnibus or omnibuses to run to and from the said Kingston station as should be required to accommodate the traffic to and from that station and its vicinity: That no complaint had been made of the deficiency or insufficiency of the present omnibus accommodation at the Kingston station: That Williams did not receive any pecuniary or other assistance and accommodation from the company in working his omnibus: That the complainant formerly worked the said omnibus to and from the said Kingston station and Norbiton, as the same is now worked by Williams: That the said omnibus so started by the complainant, so far as it runs between Kingston station and Kingston, is not required for public accommodation so far as respects Kingston or Norbiton or any place between Kingston and Norbiton and the said station: That, so far as the complainant's omnibus ran from Twickenham station, on the Richmond and Windsor line, to the Kingston station, it was in competition with the traffic of the London and South Western Railroad Company to and from Twickenham station, and was not required for public *accommodation: That the deponent verily believed that the said *506] omnibus was started by the complainant to run between the Twickenham and Kingston stations, not for the bona fide purpose of providing better or more extended accommodation for the public and passengers travelling upon the said London and South Western railway to and from the said stations respectively, but for the purpose of annoying the company and Williams, and interfering with the traffic upon the said

railway, and of the said omnibus of Williams. The affidavit then went on very irrelevantly to allege that the complainant was a very illregulated and troublesome fellow, and that therefore, and for other reasons, the directors "were not disposed to grant him any favour or indulgence."

The affidavit of Dudman stated, amongst other things, that the deponent had the superintendence of the porters at the Kingston station; that, to the best of his belief, the porters at that station carried the luggage and parcels of, and attended upon, the passengers arriving by the complainant's omnibus in the same way and to the same extent as they carried the luggage and parcels of, and attended upon, the other passengers arriving at the Kingston station by any other omnibus or public or private conveyance; and that, so far as he was aware, no goods had ever been brought by the said omnibus to the Kingston station for carriage on the said railway, other than the luggage of passengers, and small parcels; and that no complaint had ever been made to the deponent by any passengers travelling upon the said railway to and from the Kingston station, of the insufficiency of the omnibus accommodation provided at the station; and that, in the judgment of the deponent, the omnibus worked by Williams to and from the said station and Kingston and Norbiton, afforded ample accommodation for all passengers and traffic to and from the said station and Kingston and Norbiton. *Several other affidavits were produced, which, besides contain[*507 ing a vast deal of irrelevant matter, reiterated in every conceivable shape the denial that any passenger had sustained or could sustain inconvenience or annoyance from any want of attention or accommodation at the station; and one of them gave the particulars of a pugilistic contest which had occurred at the gates of the station, between the driver of Williams's omnibus and the conductor of Marriott's, and which resulted. in the fracture of the conductor's leg. Williams also made an affidavit vehemently protesting that his conveyance gave the public all the accommodation that could be desired, and that there was not throughout the year more than sufficient traffic to and from the Kingston station to afford a fair remuneration to one omnibus.

The above affidavits having been read,

Lush, on behalf of the complainant, proposed to file additional affidavits in answer to "new matter" therein contained. The affidavits so proposed to be filed were those of four inhabitants of Hampton Wick and four of Kingston, complaining of inconvenience which they had sustained from the conduct pursued towards Marriott by the company.

Bovill, for the company, objected that these affidavits were not in answer to new matter, but merely contained allegations confirmatory of the matters already stated in the affidavits upon which the rule was moved.

The Court seemed to think that the affidavits ought not to be received;

but it became unnecessary formally to decide the point. The affidavits, however, were handed in, and filed.

Bovill and Hawkins proceeded to show cause. This is a *508] question of serious importance to railway companies; for, if Mr. Marriott can insist upon driving his omnibus into the station yard of the South Western Railway Company at Kingston, what is to prevent every Paddington omnibus from being driven into the station of the Great Western railway to ply for passengers? Seeing that competition must necessarily be productive of confusion and riot, the company have thought fit to make arrangements with Mr. Williams to provide sufficient accommodation by means of omnibuses for passengers coming to and going from the railway. [COCKBURN, C. J.-According to your affidavits, the company provides that sort of accommodation for the people of Kingston and Norbiton only; whereas, it appears that there are persons who come from Twickenham and Hampton Wick whose sole reliance must be on Marriott's omnibus. The avowed object of excluding Marriott, is to avoid competition, which is generally supposed to be beneficial in all other matters. It may be that the company would not be bound to admit all vehicles of this description; but here, it seems, they exclude all but one. CRESSWELL, J.-The words of the statute are, "undue or unreasonable preference," or "undue or unreasonable prejudice."(a) If the wants of the public, or the convenience of the company, make it desirable to admit or to exclude omnibus A. or omnibus. it may be that they would be justified in so doing.] Williams being under the more immediate control of the company, a preference is given to him, in return for his undertaking to secure ample accommodation for the public. [CRESSWELL, J.-That is granting him a monopoly for certain considerations. Unless you can show that it is reasonable, with reference to the safety of the public and the maintenance of order in the station, you are directly within the prohibition of the statute *509] *against the giving "any undue or unreasonable preference or advantage to or in favour of any particular person or company."] It is sworn that there never has been any complaint of want of accommodation on the part of the company. [CRESSWELL, J.-Suppose there is not any want of accommodation,-how does it appear that the admission of the complainant's omnibus would impose any undue or unnecessary trouble or inconvenience upon the company?] The affidavits show that in one instance at least serious mischief has resulted from the rivalry. [CRESSWELL, J.-Rather from the exclusion of Marriott.] It is submitted that it is not unreasonable for the company to do as they have done, inasmuch as it tends to secure a regular and unfailing accommodation to the public. [COCKBURN, C. J.-How does it appear that the public will be better served by confining the facilities to one individual than by open competition? Every monopoly might be upheld upon the

B.,

(a) See the section, antè, p. 410.

same grounds as you suggest. CRESSWELL, J.-You do not show that any other person besides Williams and Marriott wishes to drive his omnibus into the station.] Are the company to have no power to make regulations giving an advantage to one who contracts with them, and for their advantage, to supply accommodation at all times to the public? They might, if so minded, exclude every public vehicle from their premises. [COCKBURN, C. J.--Then they would possibly not be affording reasonable facilities for receiving and forwarding the traffic, and so might fall under the lash of the other branch of the clause.(a)] The object is, to accommodate the public, not to give a preference to Williams. [COCKBURN, C. J.-The effect is so. The only question is, whether there is a corresponding benefit to the public. I see none.]

*Lush and Quain, in support of the rule, were not called upon.

[*510

COCKBURN, C. J.-I am of opinion that this rule must be made absolute. It seems that the South Western Railway Company have entered into an arrangement with one Williams, whereby they admit his omnibus to the door of the station at Kingston for the purpose of letting down and taking up passengers and their luggage, and that they exclude all others. The effect is, that while Williams conveys his passengers coming from Kingston and Norbiton to the door of the booking-office, Marriott's passengers, some of whom come from Hampton Wick and Twickenham, being excluded from the station yard, are subjected to the inconvenience of being set down with their luggage in all weathers at the gate, which is about seventy-five feet distant from the door of the booking-office. I am of opinion that that is giving an undue and unreasonable preference and advantage to and in favour of Williams, and brings the company within the provisions of the statute in question. I see no sufficient reason why this preference should be given to one omnibus, to the exclusion of another. I can very well understand that a case might arise, where, by reason of the limited extent of their premises, a railway company might be justified in making arrangements for the admission of a certain number only of public vehicles. But nothing of the kind is suggested here. It is said that the arrangement entered into by the company with Williams enables them to secure better accommodation for the public. But, in the first place, the company do not show facts, even as regards the inhabitants of Kingston and its vicinity, whence we can infer that reasonable accommodation would not be secured at least as well without this arrangement; and, in the next place, assuming that it may be a convenient arrangement as far as *the Kingston people are con[*511 cerned, it does not apply to the rest of the public. Looking at all the circumstances, it does not appear to me that any public benefit is shown, to justify the course pursued by the company. But, on the

(a) Antè, p. 411. As to this, see the observation of Cresswell, J., in Oxlade's Case, antè, p. 493.

contrary, I am of opinion, that, as the result of the arrangement, the balance of convenience is against the public, and that this is a case of undue and unreasonable preference within the meaning of the statute, without any corresponding advantage to the public to justify it. I therefore think the rule should be made absolute to the extent of enjoining the company to admit the complainant's omnibus into the station of their railway at all reasonable times, for the purpose of receiving and setting down passengers and goods, in the same manner and to the same extent as other public vehicles of a similar description are admitted into the yard for that purpose. But, as to the rest of the rule, that which is asked is too vague, and should be omitted.

CRESSWELL, J.-I am of the same opinion. It appears to me, that, by the course pursued by the company in arbitrarily excluding Marriott's omnibus from the station yard, the passengers are subjected to an undue inconvenience, and that therefore the rule should be made absolute.

WILLIAMS, J.-I am of the same opinion, though I should have thought differently if it were to be taken, that, in coming to this conclusion, we must lay it down as a general rule that all public vehicles have a right to enter any railway station for the purpose of receiving or taking up or setting down or delivering passengers and goods. The present case is decided upon its own special circumstances.

CROWDER, J.-I also am of opinion that this rule *should be *512] made absolute to the extent stated by the Lord Chief Justice, on the ground that the company, by the course of conduct pursued by them towards the complainant, have subjected him and his passengers to a greater degree of inconvenience than the passengers by Williams's omnibus have been subjected to. For instance, all passengers who come from Teddington and Hampton Wick by the complainant's omnibus are subjected to the inconvenience of being set down at the gate of the station yard, whereas Williams's passengers coming from Kingston and Norbiton are allowed to be driven into the yard and up to the door of the booking-office. That is clearly giving the one set of passengers an undue and unreasonable preference and advantage over the others, and constitutes one of those cases in which the legislature has by the recent statute authorized us to interfere.

Lush asked for the costs of the application.

Bovill, Q. C., objected that the rule did not ask for costs.

CRESSWELL, J.-If the rule had asked for the costs, I do not know that we should have given them, under the circumstances. But, is there any instance of costs being given where they are not asked for in the rule?

WILLIAMS, J.-Can the complainant be in a better position than he would have been in if the rule had been made absolute without any cause shown?

Prentice, Amicus Curiæ, mentioned a case where upon a motion for a