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tion of Contracts made before the Special Act is obtained.
made the agreement afterwards, under the sanction of Par- As to the Ratificaliament, referred the merits of their own and another competing line to arbitration, and the two companies agreed that the successful party should adopt the engagements of the rejected company, and the owner assented to this arrangement, it was decided that the second company, in whose favour the arbitrator decided, and who subsequently obtained an act of Parliament to make the railway, were bound to perform the contract made with the landowner (o). But if a party intends to require a substituted company to perform a contract made by him with other persons, he must lose no time in asserting his rights against them. If he so conducts himself as to lead them to suppose that he has waived the contract, equity will afford no relief (p). Many other instances may be mentioned in which injunctions have been issued to restrain the proceedings of railway companies,—as to restrain a company from declaring shares to be forfeited (q); to restrain an action at law brought to recover calls upon shares (r); to restrain a company whose terminus was within the limits of a ferry, from conveying railway passengers across the river in steamboats, in contravention of the rights of the owners of the ferry (s); to restrain a railway company from charging the plaintiff higher
(0) Stanley v. The Chester and Birkenhead Railway Company, 1 Railway Cases, 58; 9 Sim. 264; 3 Myl. & Cr. 773.
(p) Greenhalgh v. The Manchester and Birmingham Railway Company, 1 Railway Cases, 68; 3 Myl. & Cr. 784; 9 Sim. 416. And see post, 564.
(4) Preston v. The Grand Collier Dock Company, 2 Railway Cases, 335, S. C., 11 Simons, 327; ante, 136, n. (s).
(r) Playfair v. The Birmingham,
Bristol, and Thames Junction Rail-
(8) Cory v. The Yarmouth and
Rules applicable injunctions.
to the granting of
Rules applicable to rates for the carriage of goods than they charged to other
the granting of
persons for the carriage of like goods under similar circumstances (t); to restrain a canal company from affixing the Parliament for an act to
corporate seal to a petition to
(t) The Attorney-General v. The Birmingham and Derby Junction Railway Co., 2 Railway Cases, 124; ante, 439. In Pickford v. The Grand Junction Railway Co., 3 Railway Cases, 538, an application for an injunction was made after the decision of the Court of Exchequer (Vide 10 M. & W. 399; 3 Railway Cases, 193; ante, 433). The following extract from the judgment of Lord Lyndhurst, C., will shew the progress of the protracted litigation which has taken place on the subject alluded to in the judgment:"The objections insisted on by the plaintiffs are four in number. I will consider, first, that which relates to Messrs. Chaplin & Horne. It is sworn, on the part of the defendants, that, immediately after the judgment delivered in the Court of Exche. quer, the agreement with Messrs. Chaplin & Horne was put an end to, and a new arrangement made, which, they submit, is free from objection.
"The carriage of goods to the terminus at Camden Town, as they represent, is performed by the company solely on their own account. Chaplin & Horne have no interest in it. The charge to the plaintiffs is the same as to the rest of the public; they allow 78. a ton to Chaplin & Horne for delivering and collecting, which, they contend, is a fair price; and for the other duties which they perform as their agents, they are paid by a salary.
"They further state, that they make
the same allowance of 78. a ton to all the persons who receive their goods at the terminus, or bring them there, and that they are willing, and have offered, to make the same allowance to plaintiffs. If this is a bonâ fide arrangement, it seems free from any legal objection. It is suggested, indeed, that it is colourable: that the charge is merely nominal, and contrived for the purpose of avoiding the decision of the Court of Exchequer.
"There is not, I think, sufficient in these affidavits to make out such a case, although, perhaps, there may be some ground for suspicion.
"Another objection arises out of that part of the case which relates to the carriage of small parcels. The defendants charged 48. per cwt., giving an option to the employer to pay, if he think proper, according to the charge for the parcels separately. The plaintiffs contend that this is illegal, and that it has been so decided by the Court of Exchequer; and they claim, therefore, the interposition and assistance of this Court to prevent the continuance of the abuse. The Court of Exchequer did not decide what was the reasonable sum to be paid in cases of this sort. They stated they were relieved from the necessity of doing so by the admissions in the special case. Whether 48. a cwt. is a reasonable charge, has never been expressly determined. In estimating the reasonableness of the charge, several points were required to be
convert a portion of a canal into a railway, and from ap- Rules applicable to plying any of the corporate funds to the proposed ob
considered the inspection of each of the packages would be absolutely impossible. It seems to follow, therefore, that, for the purpose of guarding against fraud, some average amount must be established. The highest rate of charge for articles contained in the published list is 3s. per cwt.; but, for several articles, not enumerated in that paper, a further sum, the defendants say, is required. If it be lawful, then, to charge, in cases of this sort, according to an average, (and I do not at present see any reason against it), the question as to what would be the reasonable amount of that average is still to be decided. But an option is given to the party to pay the 48. per cwt., or to pay for the parcels separately. To require them to pay for the separate parcels would, according to the decision of the Court of Exchequer, be illegal; but that is not required-an option is given; and although the scale may in some cases be less than 4s. a cwt., yet in others it would be considerably more. If the principle, therefore, of an average be legal, and 4s. be a reasonable amount of that average, the alternative offered to the owners of the goods would not render the charge illegal.
"It is not improbable, adverting to what fell from the learned Baron in giving the judgment of the Court, that, if the point had been before him for decision, he might have considered 48. as an unreasonable charge; but the question still remains for the decision of a jury, acting indeed, under the guidance of a judge; and, independently, therefore, of the ground
taken by the Vice-Chancellor, I think I ought not, in this state of the case, to grant the injunction on this ground.
"Another ground of complaint is, that more in proportion is charged when goods are carried over part of the line, than when goods are carried the whole distance to the terminus. This is founded on certain calculations as to the charges made by the London and Birmingham Railway Company, which are stated, on the other side, to be incorrect. In the affidavit of Mr. Huish, the mode of charge is described; and it is sworn, that, having regard to that mode of charge, the sum charged in respect of the short distance does not exceed the fair proportion.
"The remaining question relates to the carriage of goods from Liverpool to Worcester. The complaint is, that the same charge is made for goods delivered at the Birmingham terminus as for goods carried on and delivered at Worcester. The case of the defendants, as they state it, ap. pears to be this: they are carriers only to Birmingham; they deliver the goods there; they make the same charge in this respect to all their customers; but they admit that, in consideration of Southern & Co. agreeing to give them their whole custom, and agreeing to pay, on certain articles, an increased price, they make a quarterly deduction from their accounts. They offer the same terms to the plaintiffs, and they say this species of arrangement is usual with railway companies. Whether such a principle can be maintained may be
the granting of Injunctions.
Rules applicable to the granting of Injunctions.
ject (u). In all cases of this nature, the courts of equity are guided by the principles which have been already referred to, and they will grant or refuse the injunction according to the merits of each particular case.
And it is to be observed that a party who seeks relief by injunction, must apply to the Court promptly. If he allows the works complained of to proceed, whereby large sums of money are expended, a subsequent application for an injunction will be refused, on the ground of acquiescence (v). In accordance with the rule above mentioned, where a party allowed a railway company to make an excavation to form a new channel for a river, which occupied a considerable period of time, and involved a large expenditure of money, the Court refused an injunction, although it was applied for as soon as the company ceased to work on their own lands, and began to cut the banks of the river (x). Where, however, the proprietors of a turnpikeroad stood by while a railway company laid down tempo
open to much question; but, as nei-
(u) Cunliff v. The Manchester and
(v) Illingworth v. The Manchester
and Leeds Railway Company, 2 Railway Cases, 187; Semple v. The London and Birmingham Railway Company, 1 Railway Cases, 120; Greenhalgh v. The Manchester and Birmingham Railway Company, I Railway Cases, 68; 3 My. & Cr. 784; The Birmingham Canal Company v. Lloyd, 18 Ves. 515; Attor ney-General v. The Manchester and Leeds Railway Company, 1 Railway Cases, 436. But if a party believes a mere temporary violation of his right to be threatened, he is not precluded from relief. See Gordon v. The Cheltenham and Great Western Union Railway Company, 2 Railway Cases, 800; ante, 362.
(x) Illingworth v. The Manchester and Leeds Railway Company, 2 Railway Cases, 187.
the granting of Injunctions.
rary rails across their road, and employed wagons drawn Rules applicable to by horses only on the temporary railroad, for the purpose of carrying on the works, that is not such laches as will deprive the turnpike trustees of any right they have to an injunction to restrain the railroad company from using the railroad for public traffic with locomotive engines (y). With regard to what constitutes that amount of laches which will deprive a party of his right to relief by injunction, it is difficult to state any positive rule. To a very considerable extent each case will be governed by its own particular circumstances (z); and it has been said on this subject, that there are two arguments invariably adduced by public companies (a): if the plaintiff comes to the Court complaining of an injury at the first commencement, it is said that the damage is trifling, and the motion frivolous and vexatious; if he waits until it has assumed a grave shape, it is then said that he has acquiesced, and is therefore precluded from complaining.
When an injunction is applied for, all the facts of the case should be fairly stated; if they are not, and the injunction is afterwards dissolved in consequence of the false representation of the case, the rule is, that the plaintiff will be subjected to pay the whole of the defendant's costs (b). And if a party comes for an ex parte injunction, and misrepresents the facts of the case, he is not permitted to support the injunction by shewing another state of circumstances in which he would be entitled to it (c). Upon this point, it
(y) Northern Bridge and Road Company v. The London and Southampton Railway Company, 1 Railway Cases, 653; 9 Law Journal, N. S., 277; ante, 380.
(2) Drewry on Injunctions, 293. (a) Innocent v. The North Midland Canal Company, 1 Railway Cases, 250, arguendo.
(b) Illingworth v. The Manches ter and Leeds Railway Company, 2 Railway Cases, 187; Semple v. The London and Birmingham Railway Company, 1 Railway Cases, 493.
(c) Greenhalgh v. The Manchester and Birmingham Railway Company, 1 Railway Cases, 118.