Bye-laws.

every officer and servant affected thereby (k). A penalty, Regulations as to not exceeding 57. for each offence, may, by such bye-laws, be imposed upon all persons being officers and servants of the company (1). But so that a justice may order a part only of the penalty to be paid (m). A copy of bye-laws, with the common seal of the company affixed, is sufficient evidence of bye-laws (n).

The power of making bye-laws is an extraordinary one, and must be construed strictly. It is laid down as a principle, that all bye-laws in restraint of trade must be reasonable and beneficial to the public, or else they cannot be supported (o). Thus, where, by a local act, the proprietors of a public navigation were empowered to make bye-laws for the good government of the company, and for the good and orderly using of the navigation, and also for the well governing of the bargemen, watermen, and boatmen, who should carry any goods upon any part of the navigation, and to impose such reasonable fines upon all persons offending against the same, as to the company should seem meet, the company made a bye-law that the navigation should be closed every Sunday throughout the year, and that no business should be transacted thereon during that time, (works of necessity only excepted), nor should any person during such time navigate any boat, &c., it was decided, that the above bye-law was illegal and void, and not authorised by the statute (p).

(k) 8 Vict. c. 16, s. 124, post, App., 108.

(1) Id., s. 125, post, App., 108. Bye-laws inflicting penalties on persons other than officers or servants of the company, must be approved of and allowed by the Commissioners of Railways, see ante, 94; and must be published, see ante, 430.

(m) Id., s. 126, post, App., 108.

(n) Id., s. 127, post, App., 108.
And the seal need not be proved.
See 8 & 9 Vict. c. 113, s. 1, post,
App.

(0) The Master, &c. of Gunmakers'
Co. v. Fell, Willes, 389; Bosworth
v. Herne, Cas. temp. Hardw. 409.

(p) The Calder and Hebble Navigation Company v. Pilling, 14 M. & W. 76.

432

The company considered as carriers of goods and passengers.

CHAPTER II.

THE RIGHTS AND LIABILITIES OF RAILWAY COMPANIES, AS

CARRIERS OF GOODS AND PASSENGERS.

I. The railway company, as we have seen, are required to permit carriages, properly constructed (a), to pass on the railway on payment of the tolls authorised by the special act, or the company may themselves provide steam power and carriages, for the purpose of conveying passengers and goods, for which they may make such reasonable charges as they may determine upon, not exceeding the charges by the special act authorised to be taken (6).

The Railways Clauses Consolidation Act contains the following provisions on this subject:

The company are authorised to use locomotive engines, or other moving power, and carriages drawn thereby, and to carry passengers and goods, at reasonable charges, not exceeding the tolls by the special act authorised, (8 Vict. c. 20, s. 86, post, App., 182); or they may contract with any other railway company for the passage along their railway of carriages, &c. belonging to such other company, or vice versâ, and for such purposes they may enter into any contract for the division or apportionment of the tolls, (Id., s. 87, post, App., 182); but no such contract shall alter any tolls which the parties to such contracts shall be entitled to receive from any person or any other company; but all other persons and companies may, notwithstanding the contract, be entitled to use the railway, as if no such contract had been entered into. (Id., s. 88, post, App., 182). The company may not be charged or made liable, further or in any other case than where stage-coach proprietors and common carriers would be liable, and are entitled to the benefit of every protection and privilege which stage-coach proprietors and common carriers enjoy. (Id., s. 89, post, App., 182).

The following section is deserving of notice, especially with reference to the decisions stated in the note (c):-After

(c) Several questions have arisen on the construction of special acts, containing provisions nearly similar to the above. The importance of the subject seems to demand a full statement of the cases. In Pickford v. The Grand Junction Railway Company, (10 M. & W. 399; 3 Railway Cases, 193), a special verdict was found, by which it appeared that the defendants were authorised, by their act of Parliament, (s. 156), to carry and convey upon the railway all such passengers, goods, merchandize, &c. as should be offered to them for that purpose, and to make such reasonable charges for such carriage and conveyance as they might from time to time determine on. Sect. 159 authorised the company also to fix the sums to be charged in respect of

F F

The Company considered as Carriers of Goods and Passengers.

A hamper consigned by a carrier to his agent, containing many

small parcels, may not be charged as for distinct parcels.

The Company considered as Carriers

reciting that it is expedient that the company should be

of Goods and Pas- enabled to vary the tolls upon the railway so as to accom

sengers.

small parcels, not exceeding 500 lbs. weight each. By a subsequent act, (s. 19), they were empowered to carry passengers and goods on other railways, and to make such reasonable charges for such carriage as they should determine on. And by another act, (s. 26), it was enacted, that the charges by the former acts authorised to be made for the carriage of passengers or goods should be at all times charged equally, and after the same rate in respect of all passengers, goods, &c. conveyed or propelled by a like carriage or engine, passing on the same portion of the line, and under the same circumstances. The company published a list of rates for the carriage of merchandize, divided into seven classes, of which the lowest was 16s., and the highest 60s. per ton; and for boxes, bales, hampers, or other packages, when they contained parcels or other packages or things under 112 lbs. weight each, directed, consigned, or intended for different persons, or for more than one person, they imposed a charge of ld. per pound weight. It appeared that the plaintiff, who was a carrier, made up a package above 500lbs. weight, and directed it to one person, although, in fact, it contained a number of parcels under 112 lbs. weight each, consigned or directed to different persons. The defendants made a charge as for separate parcels, and one of the questions submitted to the Court was, whether this was a reasonable charge. Cur. adv. vult.

The judgment of the Court was now delivered by Parke, B., as follows:66 The company, in their character of common carriers, are bound to carry for reasonable charges, if reasonable charges are tendered to them. The first question, then, is resolved into this, whether, for the two hampers containing small parcels consigned to different persons, it is reasonable to charge either for each parcel contained in the hamper separately, or 1d. per pound on the gross weight of each hamper and its contents. The charge is no doubt to be varied according to the trouble, expense, and responsibility attending the receipt, carriage, and delivery of different articles; and for small parcels more ought to be paid than a proportionate part, according to weight, of the price of larger parcels of the same commodity, by reason of the greater trouble in receiving, despatching, and delivering them, and their exposure to a much greater risk of abstraction or loss. But if all the small parcels are united in one large package, and delivered to the carrier in that package, consigned to one person, the trouble and responsibility are apparently reduced precisely to the same degree as if all the articles contained in the package were the property of the same owner, and intended to be delivered to him. There would seem, therefore, to be no right to charge for such package of distinct parcels, belonging to different owners, more than if they belonged to the same. But then it is argued, on the part of the defendants, that there really is an increased responsibility, arising from the simple fact that each parcel is the property of a distinct owner; because it is said, that, in the

modate them to the circumstances of the traffic, but that The Company consuch power of varying should not be used for the purpose

event of a misdelivery, the company would be liable to several actions of trover instead of one, and even in case of loss or damage by neglect, each separate owner might maintain an action on the custom of England, in respect of his own goods. It is very doubtful at least whether, on the custom of England, separate actions could be maintained, as the relation of employer and carrier would not have subsisted between them and the company, but between them and the plaintiffs. As actions of trover, however, could be maintained, it would not be unreasonable to allow some additional remuneration, on account, not of the liability to pay greater damages, for they would be the same in both cases, but to pay the same damages by means of different suits. We are relieved, however, from the necessity of deciding what the precise amount of additional compensation (which, at all events, should be trifling) on this account should be, because it is admitted, on the special case, that the sum tendered is proper, unless the defendants had a right to charge for separate parcels, which they certainly had not, because neither the trouble, expense, nor responsibility was the same as if the parcels had been separate, or unless the defendants had a right to charge 1d. a pound on the whole. We have no difficulty in saying that this last-mentioned remuneration is excessive, and unjustified by the increase of responsibility from the circumstance of the properties being separate. It is impossible to support on this ground a charge of 41. 18. 8d. for the first package, for which, if it had consisted of parcels one property, 17. 68. 6d. would have been the proper charge, and a charge of 31. 1s. 6d. instead of 98. for the second."

A second question was also stated in this case for the opinion of the Court. It appeared that the defendants also became carriers on the London and Birmingham line, and published a list of charges for the carriage of goods from Manchester to London, among which "Manchester packs" were charged 38. 3d. per cwt., or 658. per ton. At the foot of this list was a notice, that "goods were brought to the station at Camden Town without extra charge," and that there was "no charge for booking or delivery in London." The company made an agreement with Chaplin & Horne, that the latter should carry from the station at Camden Town, and deliver in London, all such goods carried by the railway, and for so doing should receive 108. per ton out of the entire charge of 658. per ton. The plaintiff, who was a carrier, was desirous of receiving his goods at the station at Camden Town, and he required the company to make him a like allowance of 108. per ton, but the company refused to make any such allowance.

Parke, B.-"As to the second question, the Court have already intimated their opinion, that the company cannot support a claim for the same sum for carriage to Camden Town, and for carriage thither and delivery at any place in London. By the provisions already referred to, they are to carry for reasonable charges for carriage, and, by sect. 26 of the statute, such charges are to be

sidered as Carriers of Goods and Passengers.