1854. CROUCH v. THE LONDON AND NORTH reported in a very unsatisfactory manner. But supposing the case were altogether to be decided on principle, it would seem to be inconvenient and unjust, were we to hold that the common law liability did not attach in a case where the carrier had actually received the goods, indeed RAILWAY CO. so unjust that it would be impossible to hold that it did not. And, in the present case, were we to hold otherwise than we do, it would be introducing an anomaly for which there is no reason. Upon the second point, which is, that the defendants cannot be considered as common carriers beyond the limits of their own railway:―They held themselves out as carriers from London to Sheffield and Glasgow, and they are common carriers from London to Sheffield and Glasgow, whether by means of their own railway, or by the agency of the railway of another Company. With respect to the third point, whether the fifty-seventh plea is good or not:-I think that it is bad in the general form in which it has been framed; it cannot be good unless the law says, that, under all circumstances, carriers have a right to demand and to know the contents of a parcel; and that, upon a refusal to give the information, under whatever circumstances that refusal may have taken place, they may decline to carry the parcel. The law is I think, therefore, that the plaintiff is entitled to not so. our judgment. Judgment for the plaintiff, 1853. COURT OF EXCHEQUER. Easter and Trinity Terms, 1853. May 2nd & THe South Yorkshire Railway and River Dun COMPANY V. THE GREAT NORTHERN RAILWAY COMPANY. 27th; July 6th. The plaintiffs and defendants, two Railway Companies, ex ecuted a bonâ fide agreement by deed, which (after reciting that the plain tiffs' lines intersected a certain coal-field, a cer and formed the means by which the produce of such coalfield might be transport DECLARATION, that, by a deed, bearing date the 26th of February, 1852, made between the plaintiffs, then being the owners of certain railways, of the one part, and the defendants, then being the owners of certain other railways, of the other part, and sealed with their respective seals, it was mutually agreed, that the defendants might, during the term of twenty-one years, to be computed from the 1st of July, 1851, pass, go, and remain, and have full and free ingress, egress, and regress into, over, upon, and out of the railways of the plaintiffs, and ed to distant places for consumption; that, the defendants' lines communicating with the lines of the plaintiffs, the defendants were desirous of making arrangements for the passage of their engines and carriages over the lines of the plaintiffs, for the purpose of carrying coal, upon payment of a graduated toll in proportion to the quantity carried; that, the carriage of coal forming an important branch of the plaintiffs' revenue, they were apprehensive that such arrangements might injuriously affect both their coal and general traffic, and had declined to accede to them, unless they should be guaranteed from injury therefrom; and that the two Companies, being unable to determine upon any fixed rate of toll by which that result could be secured, had agreed to enter into the contract contained in the deed, for tolls fluctuating as thereinafter mentioned:) provided, first, that the defendants might, for twenty-one years, pass over the plaintiffs' lines, and have free use of their works and conveniences, engines, waggons, &c., for the purpose of carrying coal. Secondly, that such passage should be on payment of the tolls and on such conditions as thereinafter mentioned; that is to say, when, during any period of six months commencing on a given day, less than 125,000 tons of coal should be carried, the defendants should pay to the plaintiffs such a toll as would, with any clear profit made by the plaintiffs for the same period, be sufficient to enable the plaintiffs to pay the dividends for such six months on their guaranteed or preference shares, and a dividend at the rate of 34 per cent. per annum for such six months on the calls paid up on their ordinary shares; when more than 125,000 tons and less than 150,000 were carried, such sum as would make up, in like manner, the dividends on the preference stock, and 31. 5s. on the ordinary stock, and so on progressively, by advances of 25,000 tons up to the carriage of upwards of 400,000 tons, when the defendants were to pay the plaintiffs such sum as, together with the clear profits made by the plaintiffs, would pay the dividends upon the preference stock, and 67. upon the ordinary stock. And there was then a proviso, that, if the payment by the defendants, for any six months, made up 41. 10s. per cent on the ordinary stock of the plaintiffs, the toll should never fall below the sum which would enable the plaintiffs to pay that dividend :- Held, (by a majority of the Court of Exchequer, and affirmed in error), in an action upon the deed for toll for the use of the plaintiffs' line, that the contract was legal, as being one which the Companies were competent to make and not ultra vires, the payments to be made under it being within the meaning of the word "toll" in the 87th sect. of the Railways Clauses Consolidation Act, 1845, (8 Vict. c. 20). 1853. THE SOUTH RAILWAY AND v. THE GREAT have the free use of all the works and conveniences of the plaintiffs, with all engines, waggons, or other carriages, officers, servants, and workmen necessary for the purpose of carrying coal; and that such passage of the defendants over or along the said railways of the plaintiffs, and such use of their works and conveniences, should be had on RAILWAY Co. payment of such tolls, and under such restrictions and conditions, as were and are in the said deed specified. Averments, that, during six calendar months, terminating on the 30th of June, 1852, the defendants had and enjoyed such passage as aforesaid over and along the said railways of the plaintiffs, and also had and enjoyed the use of the said works and conveniences of the plaintiffs, to wit, for the purpose aforesaid; and that a large amount of toll became due and payable to the plaintiffs in respect thereof, to wit, under and by virtue of the covenants and agreements of the defendants in that behalf in the said deed contained. Breach, that, although the time for payment of the toll has elapsed, and although all things necessary to be done to entitle the plaintiffs to be paid were duly done, yet the defendants have not paid the toll. The plea set out the deed, of which the following are the material parts:-This indenture, made the 26th of February, 1852, between the South Yorkshire Railway and River Dun Company, of the one part, and the Great Northern Railway Company, of the other part: whereas the lines and branch lines of railway, forming part of the undertaking of the South Yorkshire Railway and River Dun Company, intersect or penetrate into the South Yorkshire coal-field, between the towns of Barnsley and Penistone on the one side, and Sheffield, Rotherham, and Swinton on the other side, and form the means by which the coal, the produce of such coal-field, may be transported to distant places for consumption; and whereas the Great Northern Company's railway communicates with the railways of the South 1853. THE SOUTH YORKSHIRE RAILWAY AND RIVER DUN CO. v. THE GREAT Yorkshire Railway and River Dun Company by a junction or junctions at or near Doncaster, in the county of York; and whereas certain agreements and arrangements have been made between the said Companies for working each other's lines; and the Great Northern Railway ComRAWC pany, being desirous to make further arrangements, as hereinafter specified, for the passage over the railways of the South Yorkshire Railway and River Dun Company of the engines, waggons, and other carriages of the Great Northern Railway Company, for the purpose of carrying coal, upon payment of a graduated toll in proportion to the quantity of coal so carried, applied to the South Yorkshire Railway and River Dun Company, and requested them to enter into such further arrangements; but the South Yorkshire Railway and River Dun Company, whose railways and canals are largely used for the carriage of coal, which forms an important branch of their revenue, being apprehensive that such arrangements for passage of the engines, waggons, and other carriages of the Great Northern Railway Company upon and over the railways of the South Yorkshire Railway and River Dun Company, might injuriously affect both the coal traffic and general traffic of such Company, declined to accede to such request, unless they should be guaranteed from any injury, present or future, therefrom; and the said Companies, being unable to determine upon any fixed rate of toll by which that result could be secured, have agreed to enter into the contract hereby made for the passage over and along the railways of the South Yorkshire Railway and River Dun Company of the engines, waggons, and other carriages of the Great Northern Railway Company for the purpose of coal traffic, on payment of such fluctuating tolls as hereinafter mentioned: Now this indenture witnesseth, that the South Yorkshire Railway and River Dun Company, for themselves, their successors, and assigns, and the Great Northern Railway Company, for themselves, their successors, and assigns, do hereby mutually covenant and agree in manner following, that is to say, First. That the Great Northern Railway Company shall and may at all times hereafter, during the term of twentyone years, to commence and be computed from the 1st of July, 1851, pass, go, and remain, and have full and free ingress, egress, and regress into, over, upon, and out of the railways, and have the free use of all the works and conveniences of the South Yorkshire Railway and River Dun Company, and every or any part thereof, with all engines, waggons, or other carriages, officers, servants, and workmen necessary for the purpose of carrying coal. Secondly. That such passage of the Great Northern Railway Company over or along the railways of the South Yorkshire Railway and River Dun Company, and the use of their works and conveniences, shall be had and made on payment of such tolls, and under such restrictions and conditions as are hereinafter specified, and which have been mutually agreed upon between the said Companies; (that is to say), when and so long as the quantity of coal carried over or upon the said undertaking of the South Yorkshire Railway and River Dun Company, or any part thereof, to the Great Northern Railway, and thence south of Doncaster on the main line, or south of Misterton on the loop line of the Great Northern Railway, together with the quantity of coal carried over or upon the said undertaking, or any part thereof, by or for the Great Northern Railway Company, or by or for any corporation or person, under or by virtue of any arrangement or agreement with or by permission of the Great Northern Railway Company, to any railway other than the Great Northern Railway, for transit to the south of Sheffield or Rotherham, shall not amount to 125,000 tons in any period of six calendar months, commencing upon and with any 1st day of July or 1st day of January, and terminating upon and with any 31st day of Decem 1853. THE SOUTH YORKSHIRE RAILWAY AND RIVER Dun Co. v. THE GREAT RAILWAY Co. NORTHERN |