PROB.] MOORE AND BARBER v. HOLGATE AND HOLGATE-BRYANT v. RICHARDSON. said part recited will and codicil of the said testatrix deceased given," &c. The testatrix left certain property in England, and application was made for administration, with the will annexed, limited to such property, to be granted to Mr. McLaren, as [Ex. MOORE AND BARBER V. HOLGATE AND HOLGATE. Testamentary suit-Heir-at-law-Citation-20 & 21 Vict. c. 77, s. 61-Practice. attorney for the two executors who had proved the The Court refused, as premature, an application for leave will abroad. Bayford now moved accordingly.-Two objections had been raised in the registry. First, that the deed did not in terms renounce all right to probate or letters of administration. [Sir J. P. WILDE.-I think the words are sufficient.] And, secondly, that it did not contain a statement that the renouncing executors had not intermeddled. Admitting that an executor, who had intermeddled, was not entitled to renounce, the court had a discretionary power to permit him: 1 Wms. on Executors, 3rd edit., 201; Jackson v. Whitehead, 3 Phil. 577. [Sir J. P. WILDE.-In those cases the court knew what the executor had done. Here the court knows nothing of what they have done.] Except the statement that they have done nothing under the trusts of the will. The intermeddling must amount to an administration: 1 Wms. on Executors, 200; 3 Pet. Abr. 864, n. That was, it should be such as would make a man executor de son tort: (Lango v. Symes, 3 Hagg. 774.) In order to make a man executor de son tort, the act done should be done in the character of executor; but here the executors said that they had done nothing under the trusts of the will. In the Goods of Fell, 2 Sw. & Tr. 126, an administrator was allowed to renounce after having intermeddled. Sir J. P. WILDE.-The practical question is as to the sufficiency of the renunciation. The case has been ably argued upon the point as to what will amount to such an interference with an estate as to constitute an administration so that the executor could not afterwards renounce; for the principle is undoubted that, as a general rule, a man cannot renounce after he has once intermeddled. There have been cases brought forward to show that the court may, nevertheless, although a man has intermeddled to a certain extent, allow him to renounce; but those cases are not quite in point, because here the court has no means of knowing what the executors have done. It may be that acts have been done which, if they were brought before the court, might make it imperative on them to take probate; but the question is, whether, without knowing the facts, the statement that they have not intermeddled is sufficient. When an executor renounces in this country he makes affidavit that he has not intermeddled; but here the executors do not renounce in person but by proxy, and they only state, but not on oath, that they have not intermeddled. The deed states, "Whereas, the said A. B. has never accepted or acted in the trusts," &c. Is that a sufficient statement that the person making it has not intermeddled with the estate? I may premise that it is very difficult for a man, speaking in the negative, to use language that would deny everything that could possibly have happened, or that would preclude all possibility of his having done something which the court might hold amounted to adminis tration; and the practical question is, whether the man who made that statement meant to assert that he did not intermeddle in the estate. I think he did, and I also think the renunciation is sufficient. The grant may therefore go. Administration granted. to cite the heir-at-law, the time for pleading to the declaration not having elapsed, and the next of kin not having been cited. The testator in this case, Bernard Crouch, died in June 1865, possessed of real property in Lancaster and the West Riding of Yorkshire, and leaving four daughters, all married, his only children and heiresses-at-law. The defts. entered a caveat against any grant being made as to his estate without their knowledge, and on the caveat being warned, entered an appearance. On the 25th Jan. 1866 the plts., as executors, filed a declaration propounding the will. Dr. Swabey now moved for leave, on affidavit that the real property would be affected by the will, to cite the heiresses-at-law. Sir J. P. WILDE observed that the will should either be the subject of contentious proceedings, or there should be some person before the court about to prove it in solemn form, before the court could authorise the citation of the heir-at-law. Here court had no means of ascertaining that there was there was as yet no contentious proceeding, and the a bona fide intention to prove the will in solemn form. Dr. Swabey. The declaration has been filed, and one of the parties we propose to cite is one of the defts. There is also the affidavit of the attorney. Sir J. P. WILDE.-The application is premature, When the time for and had better stand over. pleading expires, you should issue your citation to the next of kin, and then you will be ready to come before the court, and prove the will in solemn form of law. Cigars and tobacco cannot, under ordinary circumstances, and in the absence of evidence of any special circumstances rendering them necessary medicinally or otherIn such a case the proper course is for the judge to wise, be considered "necessaries" for an infant. withdraw the case from the consideration of the jury; but where there are such special circumstances it is a mixed question of law and fact, and must be left to the jury with proper directions. The cases of Peters v. Fleming, Brooker v. Scott, Wharton v. Mackenzie, and Harrison v. Fane, approved and followed. This was an action by the plt., a tobacconist in Regent-street, to recover, in goods sold and delivered, the amount of a bill for cigars, tobacco, and pipes; to which deft. having pleaded infancy, the plt. replied that "the said goods were necessaries suitable to the degree, estate, and condition of the deft.;” whereupon issue was joined. At the trial before Bramwell, B., at the Middlesex sittings in Hilary Term last, the following appeared to be the facts of the case: The deft. is the youngest son of Major Richardson, a gentleman of moderate fortune, residing in Portland-place. At the time of contracting the debt deft. was preparing for his examination for a commission in the army, and was entirely dependent upon his father and was under twenty-one years of age, having been born on the 2nd June 1844. His account with the plt., as appeared by the particulars delivered, commenced on the 13th July 1864, and between that date and the 2nd Feb. 1865, which was the date of the last supply of goods, cigars, tobacco, and pipes had been furnished by plt. to the deft. to the amount in value of 447. 14s. In the same month of July 1864 a box of 100 cigars at 21. 10s. was delivered by the plt. for the deft. at his father's house, and coming to the latter's hands, who it seemed had a great aversion to smoking, was immediately sent back by him to the plt.'s shop, with a message that he would not permit goods of any description to be received in his house for his son on credit, and that if plt. supplied deft. with cigars or aught else on credit, he would never be paid, and he forbade plt. to send anything more to his house. Thereupon the plt.'s manager wrote to deft. informing him of what had taken place, and declining to supply any further goods, and requiring payment for those already furnished, to which, on the 30th Aug. 1864, the deft. wrote in reply, complaining of his father's "unwarranted interference," and saying that if the plt. declined trusting him with any more goods and would send his account, he (deft.) would settle it, but that if plt. would continue to supply him he pledged himself only to order" such goods as were necessities, according to his station, and would pay him as soon as he came of age;" and he added in a postscript that he had passed 79 in his examination for a commission." The plt. appeared to have been satisfied with that letter, for he continued to supply goods to the deft., which were thereafter sent to deft., by his direction, at an address in Brighton. In Sept. 1864 deft. obtained a commission as ensign in the 7th Fusiliers, and is now with his regiment in India. It appeared that the deft. up to the time of obtaining his commission was entirely dependent upon his father for support, who supplied him with all necessaries and made him a yearly allowance for pocket-money and personal expenses. That the father disapproved of smoking generally, and never allowed his son to smoke in his house, and never saw him smoking. The deft. had attained his majority before the action was brought, but had no means whatever beyond his ensign's pay and such allowance as his father thought proper to make him, and so he placed himself, of necessity, in the hands of his father, by whom the action was defended. The learned Baron left it to the jury to say whether, looking at all the circumstances of the case, the goods in question were necessaries such as are requisite for a young man under age in the deft.'s position in life, telling them that they were not bound to accept or reject the plt.'s claim as a whole, they might take the bill in their hands, and reject some and allow other portions of it. The jury found a verdict for plt. for 20%., and the learned judge gave leave to deft. to move to set it aside on the ground that there was no evidence to go to the jury. Accordingly in the same term H. T. Cole, for deft., obtained a rule to set aside the verdict, and for a new trial on the ground-first, that the verdict was against evidence; and secondly, on the ground of misdirection in this, that the learned judge ought to have told the jury that the goods supplied to the deft. were not necessaries, and against that rule, Willoughby, for plt., now showed cause.-There were three points. First, that cigars were necessaries within the principle and meaning of the decided [Ex. cases. Secondly, that it was a question for the jury and not for the court. Thirdly, that there was sufficient evidence to justify the verdict. In Smith on Contracts, 3rd edit. by Malcolm, p. 260, the rule was thus stated: "It is well established by the decisions that, under the denomination necessaries, fall not only the food, clothes, and lodging necessary to the actual support of life but, likewise, means of education suitable to the infant's degree, and all those accommodations, conveniences, and matters of taste which the usages of society for the time being render proper and conformable to a person in the rank of life in which the infant moves. The question what is, in the legal sense of the word, necessary is, in each case, to be decided by a jury; but these are the principles by which the judge ought to direct the jury that their decision should in each case be guided." Peters v. Fleming, 6 M. & W. 42; 9 L. J., N. S., 81, Ex., was a leading case, and there Parke, B. laid down what was the true rule in the matter. It was on deft. to show that cigars were not necessaries for a young man in deft.'s position, an officer in the army and twenty years of age. [CHANNELL, B.-Is that so? It is rather for the plt. to show that they are necessaries for such a person.] Wine has been held to be a necessary, and why not cigars? Smoking was now a general habit in all ranks of life, and more particularly in the army. But, secondly, it was for the jury and not for the court. In Burghart v. Angertein, 6 C. & P. 690, Alderson B. left it to the jury to say whether the goods supplied were suitable to the deft.'s condition in life. So a gold latch-key has been left to the jury, and found necessary for an officer in the guards. In Com. Dig. "Enfant" B. 5, where the cases were collected, it was said the question of what was necessary was to be left to the jury. To the same effect also was 4 Bac. Abr. 355; "Infancy" I. He cited also Charters v. Bayntun, 7 C. & P. 52: Steedman v. Rose, 1 Car. & M. 432; and the note to In all the cases it had been left to the jury. [MARTIN B. refers to Wharton v. Mackenzie, and Cripps v. Hill, 5 Q. B. 606; 13 L. J., N. S., 130, Q. B., and the judgment of Coleridge J., pointing out the distinction between the province of the judge and the jury in such cases. PIGOTT B. refers to Harrison v. Fane, 1 M. & G. 550, and the judgment of Tindal, C.J.] As to the jury finding a verdict for part only, see per Lord Denman, C. J., Tapley v. Wainwright, 5 B. & Ad. 399. in H. T. Cole contra, for deft., was not called on to support his rule. POLLOCK, C. B.-We are all of opinion that there ought to be a new trial in this case. For myself I am rather inclined to agree with my brother Martin, that the matter might well have been withdrawn from the consideration of the jury altogether, and that too according to the authority cited by Mr. Willoughby himself from Comyn's Digest, where no doubt it is said that the question must be left to the jury; but this qualification is added, namely, "unless it clearly appear that the articles furnished are not necessaries." It is not needful now to discuss the merits of the case, as there will be a new trial. It is sufficient to say that none of the cases which have been mentioned show tobacco to be a necessary for a young man under ordinary circumstances, and there is an entire absence in the present case of any special circumstances which could bring it within that category. The case ought to be reconsidered, and it seems that the learned judge before whom it was tried is himself of that opinion. The rule therefore for a new trial w 1 be made absolute. Ex.] BAXENDALE AND OTHERS v. THE LONDON AND SOUTH-WESTERN RAILWAY CO. [Ex. No MARTIN, B.-My brother Bramwell has expressly PIGOTT, B.-I also am of the same opinion. directed me to say that he is of opinion that he doubt, if there be evidence to show that the articles ought to have stopped this case, and that there supplied are necessaries, and to take them out of was no evidence to go to the jury, and I must say the category of articles of mere luxury and ornathat I think his opinion is quite right. I have three ment, then the case must be left to the jury. But authorities now before me in which the law on the here, though there may have been some, there was matter is, in my judgment, correctly stated. In not sufficient, evidence for that purpose. Now, as Peters v. Fleming, 6 M. & W. 42; 9 L. J., N. S., was said by Tindal, C. J., in Harrison v. Fane (ubi 81, Ex., which was an action by a jeweller to recover sup), "it is a question of fact for the jury, subject the price of two breast-pins and a gold watch-chain, to the control of the court as to the manner in which the furnished to the deft., an undergraduate at the jury have exercised their discretion." If, therefore, the University, of eighteen or nineteen years old, jury have found a verdict on what the court clearly Parke, B. says: "It is perfectly clear that conceives to be insufficient evidence, the court will, from the earliest time down to the present the in the words of Tindal, C. J., "control" it; and it word necessaries was not confined in its strict sense seems to me to be much the same thing, in the to such articles as were necessary to the support of result, whether a case is withdrawn altogether from life, but extended to articles fit to maintain the the consideration of the jury, or whether the verparticular person in the state, station, and degree of dict, when it is founded on insufficient evidence, be life in which he is, and therefore we must not take subsequently subjected to the control of the court. the word "necessaries" in its unqualified sense, but Rule absolute for a new trial. with the qualification above pointed out;" and he adds: "The true rule I take to be, that all such articles as are purely ornamental are not necessary, and are to be rejected, because they cannot be requisite for any one, and for such matters, therefore, an infant cannot be made responsible." No doubt that is correct. A coat of superfine broadcloth may be a necessary for the son of a nobleman, although it is impossible not to say that the coarser material of a ploughman's coat would be sufficient to keep a nobleman's body warm. The same view of the matter is distinctly held also in Brooker v. Scott, 11 M. & W. 67, in which case the judgment of Parke, B., in Peters v. Fleming having been cited by the'plt.'s counsel as an authority for holding confectionery to be necessary for a youth at college, Alderson, B. distinctly points out that that judgment "is to be understood with a qualification that the articles must be useful; but," he adds, "these are articles merely useless and luxurious ;" and the Court there acted upon that view, and gave judgment for the deft., without hearing my brother Byles for him; Lord Abinger, C. B. saying: "The question is, whether "on the face of this bill, we see any articles that we think should have been considered by the jury under all the circumstances of the case as necessaries; and we think there are none." But it does not rest on these cases alone. In Wharton v. Mackenzie and Cripps v. Hill, 5 Q. B. 606; 13 L. J., N. S., 130, Q. B., Coleridge, J. points out the distinction between the province of the judge and of the jury in such cases, and correctly defines the duty of each. "In some cases," he says, "the question must be for the judge. Suppose the son of the richest man in the kingdom to have been supplied with diamonds and racehorses, the judge ought to tell the jury that such articles cannot possibly be necessaries. In Wharton v. Mackenzie the deft.'s illness was proved in order to explain the supply of some of the articles. In such a case the question is a mixed one of law and fact, and must go with proper directions to the jury. Without any explanation the court will decide the question It is said we must look at the circumstances of each deft. True; we must do so. But the articles supplied must be necessaries, and not merely comforts or conveniences." Now, I do not think that any one can doubt that cigars and tobacco are articles of luxury and not of utility; and there was no evidence of any special circumstances rendering them necessary, medicinally or otherwise, in the present case. My view of the matter entirely corresponds with the views expressed by the courts in the cases to which I have particularly referred, and I agree with the Lord Chief Baron that the rule must be made absolute. CHANNELL, B.—I am entirely of the same opinion. Attorney for plt., Robert Warren, 14, Goldensquare. Attorneys for deft., Cates and Elgood, 48, Lincoln'sinn-fields. Jan. 22 and 31. BAXENDALE AND OTHERS v. THE LONDON AND Railway company-Overcharges for the carriage of goods The defts., a railway company, were in the habit, where Held, that this constituted an inequality, and that the plts. were entitled to recover the amount by which certain charges they had paid under the later mode of charging exceeded what they would have paid under the former mode. The defts.' railway went from London to Southampton, The plis. were also in the habit of carrying goods from Ex.] BAXENDALE AND OTHERS v. THE LONDON AND SOUTH-WESTERN RAILWAY Co. defts.' line from Nine Elms station as far as South- I ampton. They complained that the amounts charged for the carriage of these goods were excessive and unequal, on the ground that, after deducting from the whole amount which the defts. charged for conveyance of goods from London to the Isle of Wight the expenses of collection, &c., in London and the amount which the carriage from Southampton station to the Isle of Wight cost to the plts. the sum which remained for the charge of carriage on the defts.' line was less than the rate charged to them by the defts. It appeared that the amount which it cost the defts. to get goods conveyed from Southampton station to the Isle of Wight was from various circumstances less than that which it cost the plts., but that even allowing for this, the proportion of the whole sum charged by the defts. for carriage to the Isle of Wight, which remained after deducting those expenses so reduced, was less than the rate they charged the plts. for carriage to the Southampton station. The rates, however, which they charged the plts. were the same as those which they always charged for carriage from London to Southampton station: Held, upon these facts, that in the absence of any thing appearing to the contrary, it must be assumed that those charges were made by the defts. bonâ fide; that the defts. must be taken to be acting not as a railway company, but in the capacity of ordinary common carriers with reference to the carriage of goods to places beyond their line of railway, and that under these circumstances there did not appear to be any necessary inequality in point of law in the charges they had made. This action was brought by the plts., who carry on business as carriers under the style of Pickford and Co., to recover the amount of certain alleged overcharges made by the defts. in respect of goods carried for the plts. by the defts. The declaration was for work done, money paid, money received, and money said to be due upon accounts stated. The defts. paid 91. into court, and as to the residue of the plts.' claim pleaded never indebted. The case came on for trial at the sittings after Trinity Term 1864, at Guildhall, before Martin B., when, by order of the court and the consent of the parties, a verdict was entered for the plts. for the amount claimed subject to a special case. The case now came on for argument. The facts as stated in the case were as follows:The defts. are a railway company incorporated by the 4 & 5 Will. 4, c. 88 (local and personal). The 149th section of that Act provides that the company may demand, receive, and recover, for the tonnage of all articles, matters, and things conveyed along the railway, tonnage rates or tolls not exceeding certain sums mentioned. By sect. 155 it is enacted that It shall be lawful for the said company, from time to time, to make orders for ascertaining and fixing the price or sum to be charged or taken by the said company in respect of small parcels (not exceeding 500lbs. weight), specie and bullion, quicksilver, platina, and cochineal, to be carried upon the said railway; and from time to time to repeal and vary the same as to them shall seem proper, provided always that the provisions herein before contained as to parcels shall not extend to goods, articles, matters, and things sent in large aggregate quantities, although made up of separate and distinct parcels, but only to single and undivided parcels. By the 158th section it is enacted that It shall be lawful for the said company, from time to time and as often as they shall think fit, to reduce all or any of the rates, tolls, or sums by this Act authorised to be taken, and afterwards, from time to time, again to raise the same or any of them, so that the same respectively shall not at any time exceed the amount by this Act authorised; provided always that the said company shall not partially raise or lower the rates, tolls, or sums payable under this Act, but all such rates, tolls, or sums shall be so fixed as that the same shall be taken from all persons under the same or similar circumstances. The defts. carry on the business of carriers [Ex. between the stations on their line, and also between their several stations and places beyond the limits of their line. The grounds of complaint alleged by the plts. against the defts., and in respect of which this action was brought, were as follows: 1. In respect of overcharges upon consignments of goods by charging for their carriage, rates according to the weight of packages contained in these consignments, taken separately, instead of a tonnage rate upon the whole of the consignments by the plts. of the same class of goods. 2. Overcharges in not allowing to the plts. a sufficient deduction or rebate for the collection, delivery, and cartage of goods both in London and in the country, when those services were not performed by the defts. (This ground of complaint was admitted by the counsel for the defts. the case finding that the fair market price of collection, &c., was 58. per ton in London, and 2s. 6d. in the country, while the defts. had only allowed 3s. 4d. in London, and 1s. 6d. in the country.) 3. Overcharges by charging upon goods carstation at Nine Elms to Southampton station, thence ried for the plts. by the defts. from the defts.' to be forwarded by the plts. to the Isle of Wight, rates which are higher than those charged to other persons under the same circumstances. With respect to the plts.' first claim the facts were under 1 cwt. a small parcels rate, which is consideras follows:-The defts. charge for goods and articles ably higher than the tonnage rate. When packages of goods are delivered to the defts. for carriage by one person in a single consignment at one and the same time, and are addressed to the same consignee, the defts. are in the habit of adding the weight of all such packages together, and charging for them upon their aggregate weight at a tonnage rate, although such goods consist of a number of small packages, each singly weighing under 1 cwt. The plts. have been, and are, in the habit of sending by the defts., from one station on their railway to another, large consignments of goods, each consignment frequently consisting of a number of small parcels; in every such case the plts. themselves delivered the goods to the defts. at the station whence they were to go, directed and consigned to the plts. at the station to which they were to be carried, and where they were to be delivered to the plts., and at such last-mentioned station the plts. themselves received them from the defts. In such cases the plts. delivered to the defts., with each consignment, a declaration, or ticking-off note, which contained the name of the plts.' firm, as consignors, and also consignees of the goods; also the description, but not the weight of the goods, and the station to which they were to be carried. Each package in any consignment was labelled with a label, on which was printed, in plain letters, the name of "Pickford and Co.," and the station to which it was to be carried. Many of such packages had, in addition to such label, the names and addresses of the persons to whom the plts. intended to deliver them, and had been desired by the customers so to deliver them, such addresses being conspicuously shown on such packages. Where goods were delivered by the plts. to the defts. to be carried and delivered by the defts. for the plts. to persons other than themselves, the names of such other persons were inserted as consignees in the consignment note or declaration, and the goods were addressed to them only, and no such label as before mentioned of "Pickford and Co." was affixed on the goods. Down to the 29th Feb. 1864, whenever consignments of goods as described were delivered by the plts. to the defts., tonnage rates were charged upon Ex.] BAXENDALE AND OTHERS v. THE LONDON AND SOUTH-WESTERN RAILWAY Co. the aggregate weight of each consignment, what- | ever the weight of the several packages, and whether the names of the persons to whom the plts. intended to deliver appeared upon them or not, and if they did appear, whether the same name appeared upon all the packages in any one consignment or a different name on each package. With respect to the plts.' third claim the facts -were as follows: [Ex. is the cost of conveyance by defts.' tramway to the wharf, and the residue consists of a lump sum paid by the defts. by arrangement to the owners of steamboats or sailing vessels conveying the goods for wharf dues and boatage. The plts. allege that under the circumstances the actual charge made by the defts. to their Cowes and Newport customers for carriage from Nine Elms to Southampton station is only at the rate of 78. per ton, and claim to have their goods carried at a corresponding rate; and having paid the firstmentioned rates in various instances under protest, they claimed a return of the excess. The court were to be at liberty to draw inferences of fact, and the question for them was, whether the plts. were entitled to recover from the defts. the amounts claimed by them as aforesaid, or any and what part thereof. From the 1st March defts. altered the rate of charge, and charged plts. separately for each package contained in each consignment so made as aforesaid at the tonnage rate, or small parcels rate, according to the weight of each package singly, whenever the names of the parties to whom the plts. intended to deliver appeared upon the packages in addition to the plts.' label, except in those cases where the same name appeared upon two or more packages in the same consignment, in which case the defts. lumped the weights of those, and charged the tonnage rate upon their aggregate weight. No The plts.' points for argument were as follows: difference was made by the defts. in thus charging-As to the first ground of complaint: 1. That the the plts. and in charging any others of the public defts. were bound to carry for the plts. the goods at who sent goods under similar circumstances. the lower or tonnage rate, and were not entitled to The plts. on various occasions, to get their goods charge the higher or parcels rate. 2. That the fact carried, were obliged to pay, under protest, small that some of the separate packages had on them parcels rates on parcels under 1 cwt., comprised the names and addresses of the plts.' customers does in consignments the aggregate weight of which not affect the plts.' right, and did not entitle the exceeded 1 cwt., and they sought in this action to defts. to charge the higher or parcels rate, inasmuch recover the difference between the amount of the as the goods were all delivered at one time and in sums they had thus paid and the amount they one consignment, and the whole consignment was would have paid had they been charged at the ton- consigned to the plts. to be delivered to them at nage rates. the same place, and every parcel thereof was labelled with the plts.' name and the station to which it was to be carried, and there to be delivered to the plts. 3. That the plts. are entitled to recover back from the defts. the difference between the tonnage rate and the parcels rate, which was illegally demanded by the defts. and paid by the plts. under protest. As to the second and third grounds of complaint: 4. That the charges made by the defts. to the plts. were unequal and illegal, being in effect higher than those that were taken by the defts. from other persons under the same or similar circumstances, inasmuch as they were higher than the through rate charged to other persons, less the actual and fair cost of cartage and carriage beyond the defts.' railway-stations respectively. 5. That where the defts. are carriers to and from places beyond their line of railway as well as to and from stations upon their line, they are bound to charge such sums only for the carriage of goods on their line as represent a fair and proportionate amount of the charge which they make for the whole carriage from place to place. 6. That if the defts. fail to do this they in effect make an unequal and illegal charge for the carriage on their line. 7. That the defts. were not entitled to made the charge they did to the plts. for the carriage of the goods to Southampton, and the plts. having paid them under protest are entitled to recover back so much as was illegally demanded and received by the defts. The plts. have been in the habit of carrying goods for their customers from London to Cowes and Newport in the Isle of Wight, and in doing so have made use of the defts.' railway for the carriage of goods from the Nine Elms station to their Southampton station. But all carriage and cartage of the goods off the line has been done by the plts. themselves, and such goods have been consigned by the plts. to themselves at Southampton station only, not to Cowes or Newport. For the carriage of these goods between Nine Elms and Southampton stations the defts. have charged the plts. uniform rates of 11s. 8d., 16s. 3d., and 19s. 7d. per ton, according to the classes of the goods, being the same rates as the defts. have charged the rest of the public for similar goods between Nine Elms and Southampton. The defts., by arrangements with owners of steamboats and sailing ships, in their capacity of carriers have also themselves been in the habit of carrying goods by their railway from London to Cowes and Newport. For the carriage of goods from London to Cowes and Newport, they have charged their customers, with the exception of certain special contracts, uniform rates of 20s. and 26s. 8d. per ton, according to the classes of the goods, which charges included collection in London and cartage to Nine Elms, conveyance on the railway from Nine Elms to Southampton station, carriage by tramway from that station to the wharf, and wharf dues there, and carriage by boats from Southampton to Cowes and Newport, but did not include delivery beyond the quays at Cowes and Newport. The defts.' points were as follows:-As to the first ground of complaint: 1. That they are entitled by law to charge in the way complained of. 2. That in making such charges no difference was made in The actual cost both to the plts. and defts. of col-charging the plts. and any others of the public who lection and cartage of such goods to Nine Elms station, and the fair market price of such collection and cartage, is not less than 5s. a ton. The actual cost to the plts. and the fair market price of the conveyance of such goods from the Southampton station to Cowes and Newport, including cartage to the wharf at Southampton, dues there, and boatcarriage thence to Cowes and Newport, is not less than 8s. per ton, of which the sum of 1s. 6d. is the cost of cartage to the wharf at Southampton. The actual cost to the defts. of such conveyance does not average more than 5s. 4d. per ton, of which 4d. brought goods under similar circumstances. 3. That no partiality or unfairness existed as against the plts. As to the last ground of complaint: 1. That the defts. are entitled by law to make the charges complained of. 2. That no difference is made in charging the plts. and any others who send goods under similar circumstances. 3. That there is no partiality or unfairness against the plts. or undue preference to others. 4. That the defts. are by law entitled, if they think fit, to charge less in proportion to the distance from Nine Elms to Southampton quay and from Nine Elms to Newport |