NATIONAL EXCHANGE GLASGOW v. DREW. [149] necessary to bring an action, what would be the result? Why, as a matter of course, to recover those shares for the Company, if it were COMPANY OF necessary. They do not want them; they have them in their own possession. They can burn them if they please, and that probably would be the best way of disposing of them. No action is necessary to recover them, but, if it were necessary, it is their own act which has rendered it necessary. They choose, in order to keep up the market, to buy, in effect, these shares, in the names of these persons. They advance all the money, and now they seek, in this action, to recover the whole of this money. The defence is, fraud on the part of the lenders, and the defence must go to the whole. The money represents the shares. The purchase and the loan are one and the same transaction. Therefore, the defence must go to the whole. What is there to set off? There is nothing to set off, but to get rid of the obligation to pay the money. The shares are totally valueless. It is not a question of what the value of shares is; that is utterly unimportant. Supposing I bought an estate, and I desired to be relieved from the contract upon the ground of fraud, and I filed a bill upon that ground, and proved the case, the Court would relieve me from the contract. I should have that relief without any reference to the question of what the value of the estate was; whether the estate was but one third of the value which I had given for it or worth the whole amount of the money which I had given for it, would be of no consequence at all. Supposing there was any defence to be set up, it would not be upon the question of what the value of the property was, but the question would be whether the party was entitled to make that defence as to the whole or not. My Lords, there are two cases which have been referred to in the Court of Session in Scotland. One is Brown's case, in 12 Shaw & Dunlop (1). There an acting director, who was also a partner in a Joint-stock Company, brought an action against a purchaser of shares in his own name, just as here; and the defence set up false representations, and so on, which induced him to buy the shares. There the defence no doubt was this, that the man who was the pursuer. was himself a director, and they were his own shares. I only quote that to show that this was a case of fraud. The defence was admitted there to the whole transaction, just as in this case. There was a different ground of fraud and different parties, but not a different defence. The defence there was allowed to the whole of the demand, and nobody imagined that there was any ground of set-off, or any difficulty such as has been suggested in this case. Then, with respect to the case of Graham v. The North British Banking Company, which is in 12th volume of the Court of Session Reports (2), there there was a fraud by the Bank, upon sales of (2) P. 907. (1) P. 596. [ *150 ] EXCHANGE COMPANY OF GLASGOW NATIONAL shares, for which bills were given, just as here. An action of reduction was brought-not a mere defence, and that action was allowed. That was therefore, although a different case in circumstances, a case in which a man had been fraudulently induced to purchase shares, and that fraud gave him a right to reduce the whole transaction. This defence is exactly of the same nature. It is a defence to the whole transaction. About that I have no hesitation whatever. ᎠᎡᎬᎳ, 1855. May 1, 3, 4, 22. Lord CRANWORTH, Lord ST. LEONARDS. [177] [ *178 ] case. Upon the whole I concur with my noble and learned friends in advising your Lordships to affirm the decision of the COURT below. It appears to me that the pursuers have failed to make out their The sum in question is a small one. That does not affect the argument, no doubt; but for such a small sum there ought not to have been the great amount of expense incurred, which this proceeding must have occasioned to the parties; and it certainly does appear to me that those costs should be borne by the appeilants. Interlocutors affirmed, and appeal dismissed with costs. FINNIE v. GLASGOW AND SOUTH-WESTERN (2 Macq. 177-204.) Railway Clauses Consolidation (Scotland) Act, 8 & 9 Vict. c. 33. Circumstances in which it was held (Lord ST. LEONARDS dissenting) that uniformity of charge by a Railway Company was not compellable. Whether money overpaid in case of an overcharge by a Railway Company can be recovered back; on this question the Law Peers differ. Attorney-General v. The Birmingham and Derby Junction Railway Company (2), decided by Lord COTTENHAM, pronounced by Lord ST. LEONARDS not " very clear or altogether satisfactory." The LORD CHANCELLOR and Lord ST. LEONARDS (the only Law Peers present) being divided in opinion, the decision below affirmed; and an application by the appellant's counsel (relying on the precedent of Johnstone v. Beattie (3)) refused. Remark by the Solicitor-General. THE minuteness of detail exhibited in the opinions of the Law Peers renders it unnecessary to do more than to state briefly the nature of the question which formed the subject of litigation. The appellant, Mr. Finnie, was tacksman or lessee of the Duke of Portland's coal mines in the county of Ayr, and he instituted an action in the Court of Session for the purpose of enforcing an equalization of the rate of charge for the carriage of coals on the respondents' railway. The respondents admitted that the rate of charge on the Kilmarnock and Troon line was higher than the ordinary rate, but this they attempted to justify *by showing that the Acts of (1) Cited, Denaby Main Colliery (2) 2 Rail. Cas. 124. (3) 59 R. R. 23, 34 (10 Cl. & Fin. 42, 83). Parliament did not, in the circumstances of the case, require FINNIE V. uniformity. GLASGOW The Court of Session, on the 10th March, 1853, decided that the AND SOUTHRailway Company were right. Mr. Finnie thereupon appealed to the House. WESTERN RAILWAY COMPANY. The Solicitor-General (1) and Mr. Anderson, for the appellant, cited Parker v. Great Western Railway Company (2), AttorneyGeneral v. The Birmingham and Derby Junction Railway Company (3), Stockton and Darlington Railway Company v. Barrett (4). The Lord Advocate (5) and Mr. Rolt, for the respondents, cited The Attorney-General v. The Birmingham and Derby Junction Railway Company (3). THE LORD CHANCELLOR : My Lords, the object of this action was to be reimbursed certain moneys which the appellant alleged he had been overcharged by the defenders, the Glasgow and South-Western Railway Company; and with a view to obtain that repayment there was also a conclusion for a declarator as to his rights. He averred that the Company were bound to charge all persons equally, and that he had not been equally charged. The case made by the appellant is this: That an Act of Parliament was passed in the first year of her present Majesty's reign (6), for incorporating the Glasgow, Paisley, Kilmarnock, and Ayr Railway with branches. Many of the clauses of that Act of Parliament are set out in the summons. There were certain other Acts for extending the railway, and for making branches to different places; and, finally, there was an Act of the 5th of Victoria (7), which was an Act amending some of the former Acts. In this last Act, a clause was inserted to which I shall presently call your Lordships' attention more fully. The railway was made, with the branches, or such of the branches as are material to the present question, under the provisions of those several Acts of Parliament. The pleadings state that there had been a railway, which was a mere tramway, for the conveyance of coals from Kilmarnock to Troon, and that by an Act passed in the 9th and 10th of Victoria (8), the defenders were authorized to take a lease of this railway for 999 years, and to convert it into what is called an edge railway, that is, a railway on which passengers might travel. And by that Act of Parliament it was provided, that all the provisions which (1) Sir R. Bethell. (2) 7 Man. & G. 253. (3) 2 Rail. Cas. 124. (4) 65 R. R. 261 (11 Cl. & Fin. 390). (5) Mr. Moncreiff. (8) C. 211. [ *179 ] FINNIE v. GLASGOW had been introduced into the Act of the 5th year of her present Majesty, with reference to the defenders' railway, the main line of AND SOUTH- railway should be incorporated with, introduced into, and form part of the provisions of the Act of Parliament for leasing this line from Kilmarnock to Troon. WESTERN RAILWAY COMPANY. [180] It is further stated, that in pursuance of those provisions in the Act of Parliament, tables of charges were made as to the rate at which coal should be conveyed upon the one line and upon the other line. And it is sufficient for the present purpose to say, that the rate of toll fixed on the Kilmarnock and Troon line, the line of which the defenders are merely the lessees for 999 years, was a higher rate than the rate which was fixed upon the main line. It is not always so-under a certain distance it is the same; but if the traffic goes beyond a certain distance, the rate of toll is higher upon the cross line than it is upon the main line; for a certain distance, I believe, it is the same rate upon both lines, but it may be taken, for practical purposes, that it is a higher rate of charge upon the cross line than that upon the main line. The principal object of these railways is, to carry that coal to the sea by conveying it to Troon, Ayr, and other places on that line; and the complaint of the appellant is, that he is charged according to the higher rate, namely, the rate upon the cross line, upon which alone his coals run when they are taken to the sea; whereas parties sending coals from the coal pits beyond Kilmarnock, and which travel a part of the distance upon the main line, are charged upon the main line at the lower rate, and at that same lower rate all the time that they are traversing the cross line, so that those persons have undue advantages over him. By the Act of Parliament of the 5th of Victoria, to which I have alluded, which regulates the main line, and the provisions of which are, by reference, incorporated in the Act of Parliament which relates to the Troon line, it is provided that the Company may, if they choose, have locomotive engines and act themselves as carriers, provided always that they make certain charges not exceeding certain amounts. "Provided always, that in whatever way the said charges are made, they shall be made equally to all persons in respect of all animals and of all goods, wares, merchandise, articles, matters, or things of a like description and quantity, and conveyed or propelled by a like carriage or engine, passing over the same portion of, and over the same distance along, the railway, and under the like circumstances, and in respect of all accommodations of a like nature afforded in respect thereto." Now, the complaint of the pursuer is, that in violation of that provision, for the coals coming from his collieries, which border upon the cross line (principally the two collieries which are mentioned, namely, the Annandale and Gatehead collieries), when they go wholly along that railway to Troon, or partly along *that railway, and then turn off from the cross line to the main line and go to Ayr, he is charged for so much as passes along the cross railway at a higher rate; whereas other persons bringing coals from places beyond Kilmarnock, are charged for traversing along the whole line of the cross railway at the main railway rates, which are materially lower. Therefore, he says, that the money which he has paid at the higher rate beyond what others have paid at the lower rate is an excess, that it ought to be declared that it is so, and that he should recover back the excess which he has so paid, which he calculates amounts to many hundred pounds. His precise allegations are: "That the charge exacted from the pursuer for the carriage of his coals from Annandale (Kilmarnock colliery) to Ayr, a distance of five and three-quarter miles on the Kilmarnock and Troon Railway," (that is, the cross railway,) “and seven miles on the defenders' line, being together twelve miles and three-quarters, has along been, and still is, 2s. Oąd. per ton, while the charge from Hurlford to Ayr, six and three-fourth miles on the Kilmarnock and Troon Railway, and ten miles on the defenders' line, together sixteen and three-fourth miles, has all along been, and still is, only 2s. per ton." Then he states, not exactly the same amounts, but similar differences of charge upon the pursuer carrying coals from Gatehead colliery to Irvine, as compared with what others would pay when they brought coals to Irvine, and in the same way from Annandale colliery to Troon. Then he compares the charge, when a party brings coals along the cross line, with that which others are charged when they bring coals along the main line from another distance, namely, to Ayr; he says that they are charged again at a different rate; so that the result is, that he is charged at [the *rate; so that the result is, that he is charged at] (1) the higher rate all along, namely, at the rate of the cross line, whereas the others are charged all along at the rate of the main line, as well when they are traversing the main line as when they are traversing the cross line. The first question is, whether this is in violation of the provisions of the Acts of Parliament. The Court of Session, first, the LORD ORDINARY, and afterwards the Lords of Session, were of opinion that it was not a violation of those provisions of the Acts of Parliament; and, after carefully looking at the various provisions of the Acts as fully as I have been able to do, I have come to the conclusion at which the Court of Session arrived. The question lies in the very narrowest compass. It appears to me to turn entirely upon what the provisions are in the Act of the 5 Vict. (2), which, by reference, was incorporated in (1) The words between brackets are thus duplicated in the original R.R.-VOL. CXLIX. report. 11 FINNIE v. GLASGOW AND SOUTH- WESTERN COMPANY. [ *181 ] [ *182 ] |