1852.

SIMPSON

v.

DENISON.

The second part of the injunction does not require that qualification; for, according to the view which I take of the case, the Great Northern Railway Company (this not being a toll within the meaning of the Act) can have no right to pay any of the liabilities of the Ambergate Com

pany.

The remaining part of the injunction-the third headis as to the right of the Great Northern Railway Company to apply their funds in payment of the expenses incident to an application to Parliament, for the purpose of carrying out this arrangement. Upon that subject a case of Ware v. The Grand Junction Water Works Company (a) was very properly relied upon on the part of the defendants; but, upon carefully reading that case, I do not observe that the distinction between going to Parliament, and applying the funds of the Company for the purpose of going to Parliament, appears to have been much or indeed at all considered. The point does not seem to have attracted Lord Brougham's attention. But the later cases have, I think, very clearly established that distinction, which, in my opinion, is perfectly well founded. I will test it by again applying the principle which governs all these cases of a limited partnership. Could one partner be permitted to use the funds of a partnership in an application to Parliament to authorise the extension of the trade beyond the limits prescribed by the articles? I take it to be perfectly clear that he could not. And if he could not in the case of a limited partnership, extending that principle to these large partnerships, I am of opinion, that all the members cannot, as against one dissentient, agree that the funds of the Company shall be applied to a purpose not warranted and not provided for by the articles, the articles containing no such provision.

What the effect might be if there were an agreement

(a) 2 Russ. & My. 470.

カン

between parties for the purpose of carrying on, not a par-
ticular trade between particular places, but a general trade
-to carry on trade in particular articles, not between par-
ticular places, but generally; there, I should be very much
disposed to say, that the effect would be, that the majo-
rity of the partners, all having agreed to carry on the trade
in those articles, the majority could bind the minority as
to the places between which that trade was to be carried
on; but that, where the partnership specifically provides
for carrying on the trade between certain limits, I take it,
that no majority could bind the minority to carry it on
between different limits; and therefore no majority can
bind the minority, or can authorise an application of part-
nership funds to a purpose not warranted by the partner-
ship articles.

A distinction was attempted, in the present case, between
an application to Parliament for the purpose, as it was
said, of carrying out the purposes of the partnership, and
an application to Parliament for another and different
purpose than the purposes of the partnership. But this
distinction appeared to me during the argument, and up-
on further consideration it has appeared to me since, to be
founded altogether upon a fallacy; because the purpose
for which this partnership was formed, was not for carry-
ing on and making all railways, or carrying goods and pas-
sengers upon all railways; but the purpose is for making a
particular railway, and carrying goods &c. upon that par-
ticular railway. And, therefore, it is so limited that the
intended application is necessarily for another and a dif-
ferent purpose. It is, in truth, another and a different pur-
pose from that which is prescribed by the Act of Parlia-
ment under which the Company is constituted; which
forms, as it were, the partnership deed between these par-
ties.

I am of opinion, therefore, that the injunction is also due upon this point; but I think that it goes too far.

1852.

SIMPSON

v.

DENISON.

His Honour then suggested the terms of his order, which was drawn up in the following form:-" That an injunc tion be awarded against the defendants [the directors, nominatim] and the Great Northern Railway Company, to restrain the said defendants, their servants, workmen, and agents, from working the traffic of the Ambergate, Nottingham and Boston, and Eastern Junction Railway Company, under or in pursuance of the agreement of the 5th day of May, 1852, or of any deed or instrument for the purpose of carrying the same into effect; and also from applying any of the funds or monies of the said Great Northern Railway Company in or towards paying the liabilities of the said defendants, the Ambergate &c. Railway Company, in respect of the Grantham and Nottingham Canals, or any other liabilities of the said last-mentioned Company; or in indemnifying the same Company against all or any of their liabilities, whether of canals or otherwise; or in or towards paying to the said Company such sum as will, after answering all expenses and liabilities, furnish a dividend of 4. per cent. on the paid-up share capital of the said Company; or in paying, under or in pursuance of the said agreement or the arrangement intended to be thereby made, any other sum of money whatever to the same Company; or in applying for or endeavouring to obtain an Act of Parliament to ratify the said agreement or the arrangement intended to be thereby made; and also from pledging the credit of the Great Northern Railway Company for all or any of the above purposes" [until answer or other order].

COURT OF EXCHEQUER.

Easter Term, 1852.

1852.

FOWLES v. THE GREAT WESTERN RAILWAY COMPANY.

CASE-The declaration stated, that the defendants were the proprietors of the Great Western Railway, and carried on the business of common carriers thereon; and that the plaintiff caused to be delivered to them as common carriers, and the defendants received, twenty boxes, containing therein magic lanterns, &c., of the plaintiff, to be safely conveyed by the defendants from Bristol, and to be by the defendants delivered to the plaintiff at Brompton, in the county of Middlesex; yet the defendants, not regarding their duty, did not use due and proper care in and about the carriage and conveyance of the boxes, and the delivery thereof; but so carelessly conducted themselves, that the boxes and the goods were, through the carelessness and negligence of the defendants, thrown on to the ground, and divers glass goods were broken.

Plea. That the plaintiff did not cause to be delivered to the defendants, nor did the defendants receive, the said boxes, to be safely and securely carried, and delivered, modo et formâ.

back of the receipt stated, that

The cause was tried before Lord Campbell, C. J., at the goods addressed

to consignees resident beyond the immediate

vicinity of the Company's Goods Stations would be forwarded by public carrier or otherwise, as opportunity might offer; but that the delivery of the goods by the Company would be considered as complete, and the responsibility of the Company cease, when such carriers received the goods; and that the Company would not be responsible for loss or damage to goods beyond the limits of their railway. The plaintiff's goods were safely conveyed to the Paddington station, and there given to a person specially appointed by the Company for the collection and delivery of goods, and through his negligence were damaged on their delivery at Brompton. The defendants' charge included the carriage from Paddington to Brompton:-Held, that the contract of the defendants was to carry from Bristol to Paddington, and that they were not liable for the subsequent damage.

1852.

FOWLES

Bristol Summer Assizes, 1851; when it appeared that one King, as agent of the plaintiff, took to the Bristol station of the Great Western Railway the goods in question, for carriage to London, and delivered them to the clerk at RAILWAY CO. the station, who signed a receipt, of which the following

v.

THE GREAT
WESTERN

is a copy:

"Great Western Railway.

"BRISTOL STATION, May 2nd, 1851.

"To the Great Western Railway Company.

"Received the under-mentioned goods from Mr. Joseph King of Bristol, to be conveyed by the Great Western Railway Company as mentioned below, and on the conditions stated on the other side.

"Received the above-mentioned goods in good order and condition.

Consignee.

Entered by J. 351.

Loaded by A. Beaven on Truck No. 701."

At the back of the receipt were printed the following conditions:

"PUBLIC NOTICE:

"That all goods received by the Company within the limits of their local regulations for conveyance on their Railway, will be received and booked without charge for collection; and that all goods addressed to consignees resident within the limits of delivery from the Company's Goods Station, and respecting which no directions to the contrary shall have been received, will be delivered without addiany tional charge by the Company at those places.

"That all goods addressed to consignees resident beyond the immediate vicinity of the Company's Goods Station, and respecting which no directions to the contrary shall have been received previous to arrival at the station-house, will be forwarded to their destination by public carrier or otherwise, as opportunity may offer; or they