Under the powers given to them by s. 182, the company framed a scale of charges for the carriage of parcels not exceeding 1 cwt. each, which charges were higher than the tonnage-rates warranted by s. 175, but which included a reasonable charge for the use of their carriages and locomotive power under ss. 177 and 179. Under this scale, where a number of separate parcels (each weighing less than 1 cwt., but exceeding 1 cwt. if taken in the aggregate) were brought to the railway by the same person, and containing the same article, and all directed to the same person at their place of destination, the company charged the tonnage or lower rate allowed by s. 175: but, if similar parcels were brought addressed to several different persons, they were charged the higher or parcels rate. Under a special case setting out these facts,-Held, that there was nothing to induce the court (or which ought to induce a jury) to infer that the charges so made were unreasonable, regard being had to the additional trouble incurred by the company. Quære, whether the 186th section applies to "small parcels ?" Semble, per Byles, J., that it does. Though limited to a reasonable charge, there is no common-law obligation on a carrier to charge equal rates of carriage to all his customers. The Railway Traffic Act, 17 & 18 Vict. c. 31, does not interfere with the right of a party aggrieved by overcharges, to maintain an action to recover back the sums paid in excess. THIS was an action brought by the plaintiffs against the defendants, to recover back alleged overcharges in respect of goods sent by the plaintiffs from London to Norwich and Norwich to London by the defendants' railway, and also damages in respect of such overcharges. By a judge's order, after issue joined, it was ordered that the [*64 questions of law should be stated in a special case, and that the damages, if any, should be assessed by an arbitrator, subject to the opinion of the court whether the plaintiffs were entitled to recover any special damages. The plaintiffs are, and for many years have been, carriers, carrying on their business as such under the style and firm of Pickford & Co., and as such they have been in the habit of carrying goods for hire to and from, amongst other places, London to Norwich and Norwich to London. The defendants are the Eastern Counties Railway Company, incorporated by the 6 & 7 W. 4, c. cvi., and the proprietors of the railway constructed under the powers of that act between London and Norwich. The mode in which the plaintiffs carried on their business between London and Norwich, was and is, by collecting at their receiving-houses in those towns all parcels and packages of their customers to be sent from one to the other of those towns, and from such receiving-houses taking them to the stations of the defendants' railway in London and Norwich, and there delivering them to the defendants, to be carried by them from London to Norwich, and from Norwich to London, respectively, such parcels and packages being addressed to the several parties at London or Norwich for whom they are intended. Separate entries are made by the defendants of each parcel and package in the invoices and in the freight-notes, weigh-bills, and counting-house books, when the same are directed to different persons; and each package is weighed separately but that is not the case when they are directed to the same ultimate consignee. At Norwich and London they were and are delivered in separate packages at the same *time by the defendants to the [*65 plaintiffs, and by them delivered to their customers, or their consignees, according to the different addresses on such parcels respectively. There is no other railway from London to Norwich except the defendants'; and the plaintiffs, unless they so used the defendants' railway, could not have carried or carry the goods of their customers with the same celerity as now, or carry on their business with the same convenience, advantage, and profit. All the parcels and packages mentioned in this case were delivered by the plaintiffs to the defendants at one of their said stations, to be carried by them, and they were so carried, from London to Norwich or Norwich to London, and were parcels and packages which the plaintiffs were employed by their customers to carry as common carriers, as before described. By s. 175 of the defendants' act, 6 & 7 W. 4, c. cv.i, they are authorized to demand, receive, and recover for the tonnage of all articles, matters, and things which are carried or conveyed upon or along the said railway, or any part thereof, rates and tolls on, amongst other things, all silk, cotton, linen, and woollen manufactures, raw-silk, raw-cotton, cottonthread, dye-stuffs, groceries, earthenware, hardware, iron and other metals, and all articles of merchandise not otherwise charged, any sum not exceeding 6d. per ton per mile. By s. 177 of the same act, the defendants are authorized (if they shall think proper) to use and employ locomotive and other engines or other motive power, and in carriages and wagons drawn or propelled thereby to carry and convey upon the said railway, and also upon and along any other railway communicating therewith, all such passengers, cattle, goods, wares, and merchandise, articles, matters, and things, as shall be offered to them for that purpose, and to make such reasonable *66] charges for such carriage and conveyance, as *they may from time to time determine upon, in addition to the several tonnages and tolls thereinbefore authorized to be charged and received. Section 179 enacts that it shall be lawful for the defendants, and they are thereby empowered, to provide locomotive engines, or other motive power, for the drawing or propelling of any articles, matters, or things, persons, cattle, or animals, upon the said railway, and also along and upon any other railway communicating therewith, and to receive, demand, and recover such sums of money for the use of such engines or other power as the said defendants should think proper, in addition to the several rates, tolls, or sums by that act authorized to be taken. Section 182 provides that the defendants may from time to time make such orders for fixing, and by such orders fix, the sum to be charged by them in respect of small parcels not exceeding 1 cwt. each, as to them shall seem proper. Section 186 provides "that the aforesaid rates and tolls to be taken by virtue of this act shall at all times be charged equally and after the same rate per ton throughout the whole of the said railway, in respect of the same description of articles, matters, or things; and no reduction or advance in the said rates and tolls shall, either directly or indirectly, be made partially or in favour of or against any particular person or company, or be confined to any particular part of the said railway, but that every such reduction or advance of rates and tolls upon any particular kind or description of articles, matters, or things, shall extend to and take place throughout the whole and every part of the said railway upon and in respect of the same description of articles, matters, and things so reduced, or advanced, and shall extend to all persons whomsoever using the same or carrying the same description of articles, *matters, or things thereon, anything to the contrary thereof in any wise notwithstanding." *67] Under the power given by s. 182, the defendants framed a scale of charges, by which the rates for the carriage of parcels not exceeding 1 cwt. each from London to Norwich, and vice versâ, were higher than the charges which the defendants were entitled to receive and did receive under section 175; but such rates included, not merely the tolls for the use of the railway under section 175, but also a reasonable charge for the use of their carriages and locomotive power under sections 177 and 179. In all cases in which a number of separate parcels or packages were brought and delivered to the defendants at the same time by the plaintiffs or others of the public, to be carried, which, if taken separately, would weigh less than 1 cwt., but which, if taken in the aggregate, would weigh more than 1 cwt.,-if they all contained the same article, and were directed to the same party, the defendants charged them in the aggregate, and according to the tonnage or lower rate of charges allowed by section 175; whereas, if a number of separate parcels or packages of the same kind and weight were brought and delivered by the plaintiffs to the defendants under similar circumstances (except that they were addressed to several persons, instead of to one person only), the defendants charged to the plaintiffs the parcel-rate, although such parcels or packages were all delivered to the defendants by the plaintiffs at the same time and place, and were also received at the other end by the plaintiffs from the defendants at the same time and place. Thus,-if ten packages of of a cwt. each, containing the same article, and addressed to the same consignee, were brought by one of the public, or by the plaintiffs, the whole would be charged in the aggregate at the tonnage-rate on 7 cwt.; but, if such packages were brought by [*68 one of the public, or by the plaintiffs, addressed to different parties, they would be charged by the parcel-rate as ten parcels, although delivered by the plaintiffs to the defendants at the same time, and also consigned to the plaintiffs and received by the plaintiffs from the defendants at the other end at the same time. If, amongst a number of separate packages so brought by the plaintiffs to the defendants to be carried, some were addressed to the same person, whilst the others were addressed to different persons, the defendants then lumped together in one weight those addressed to the same person, and charged them in the aggregate according to the tonnage or lower rate only; whereas, with respect to the others, they charged the higher or parcel-rate for each package under 1 cwt. in weight. No other carriers use the defendants' railway. A weigh-bill showing this mode of charging is appended to and to be taken as part of this case. (See following page.) This practice continued for some months previous to September, 1856. The plaintiffs from time to time complained to the defendants of this mode of charging, and objected to it, and claimed to be charged according to the lower scale, in the same manner as if the parcels had been all addressed to the same consignee. They continued, however, to send goods by the defendants from Norwich to London, and vice versâ, paying to the defendants according to the higher scale, as demanded. During the months of September, October, and November, 1856, the plaintiffs delivered to the defendants at London and Norwich respectively, to be carried as aforesaid, goods in separate packages, each under 1 cwt. in weight, but always at the same time, addressed to different consignees, and containing the same articles as aforesaid, and upon each occasion protested against the defendants' mode of charging, and insisted *on the plaintiffs' right to be charged according to the lower or [*70 tonnage-scale. This the defendants declined to accede to, and insisted on the plaintiffs' paying according to the higher or parcels-scale. The plaintiffs on each occasion paid the higher or parcels-scale under protest; and the goods were received and carried by the defendants. The sums so paid by the plaintiffs to the defendants under protest,being the difference between the tonnage-scale and the parcels-scale in respect of such goods,-amounted to 267. 98. 5d. The plaintiffs contend that to this extent they have been deprived of their profits as carriers in respect of such goods. They also allege, that, by the course adopted by the defendants, they have been injured in their trade, by being unable to carry goods for their customers at so low a rate as they otherwise would have been; and thus have lost much custom, and been unable so well to compete in the carriage of goods with the defendants. They also allege that they have been put to great trouble in paying, as before mentioned, the difference to the defendants under protest, and keeping accounts of such payments; and that they have also been obliged to charge their customers a higher rate for carriage between London and Norwich, to the detriment and injury of their trade as carriers. The defendants contend, that the plaintiffs have no right to have their parcels carried upon any other terms than the above; and that it is for the plaintiffs' own advantage that they undertake the delivery to their customers of the different parcels. The defendants make a separate charge to the rest of the public for the delivery of parcels at the places designated, in addition to the charge for carrying the parcels on the railway. The same mode of charging has been adopted by the defendants ever since the opening of their railway. The defendants contend, that, even if the *plaintiffs are entitled to the 267. 98. 5d., they are not entitled at law to more damages, upon any of the other [*71 grounds alleged. The court was to be at liberty to draw from the above facts any conclusions which in their judgment a jury ought to have drawn. The questions for the opinion of the court were, First, whether the defendants were bound to carry for the plaintiffs all or any of the goods so delivered to them by the plaintiffs, at or for the lower or tonnage-rate? Secondly, whether the plaintiffs are entitled to recover from the defendants the said sum of 261. 98. 5d. paid by them to the defendants under protest under the circumstances stated in the case? Thirdly, whether the plaintiffs were entitled to recover from the defendants, beyond the said sum of 261. 98. 5d., damages for the alleged wrongful refusal by them to carry the said goods at or for the said rates? The verdict on the several issues was to be entered in such manner and form as to the court should seem proper. C. Pollock (with whom was W. H. Willes), for the plaintiffs. (a)—This (a) The points marked for argument on the part of the plaintiffs were as follows:-"1. That the defendants were bound to carry for the plaintiffs the goods mentioned in the case at the lower or tonnage-rate, and were not entitled to charge the higher or parcels-rate. "2. That the fact that the separate packages were addressed to different persons did not entitle the defendants to charge the higher or parcels-rate, inasmuch as the goods were all delivered at one time and in one consignment, to be delivered to the plaintiffs. VOL. IV.-5 |