K WM.C] Printers and . 27, FL H THE HISTC By Dr. Rui OLPH A. ASHWORTH. of "At this time thesi questions of current p "Dr. Gneist's worV Saturday Review. INFORMAT] and PROHIBIT: of "The Law Rel " A very uselul conl " Learned and accu.' THE COUN 1 Enac'ments. and t Foulkes's "Parlu Barrisler-at-Law. LEADING C of the Middle TV veyancing Acts," ; PETITION Petitions of Rich proceedings by Pa WALTER CLODE, < Second Edition, EMDEN'S UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ifonrr. w Reporting E.G. [TTUTION. nslated by PHILIP nost all the great tional history " iNDAMUS, :er-at-Law, Author t." Law Times. Incorporated pent to Lely and D. I. FOULKES, >MAS BRETT, ind Brett's Con- i of) under the jg the Laws regulating .nd Dependencies. By ! a Chapter on Re- COMPANIES ;ter-at-Law, Author of forth the ster-at-Law, / in. ... to set AND FORMS. "The Law of Bui "We have rarely n W "It givei e au*x^n^vTawun7ofThe"law1n"a convenient and available form." Saturday Review. Royal 8vo, price i*. THE JUDGES OF ENGLAND (Table of) during the Fifty Years of the Rtign of Her Majesty Queen Victoria, 18371887. Compiled by ROBERT J. DLOCK, Clerk to the Right Honourable the Lord Justice Bowen. THE LAW OF FALSE MARKING. THE MERCHANDISE MARKS ACT, 1887. With Notes and an Introduction. By ALBERT GRAY, of the Inner Temple, Barrister-at-Law. Crown 8vo, cloth, 7*. 6< 1 faith of Parliament, the legislature was embarrussi < 1 as to the measure of control to be exercised over the powers of the companies in general Acts, like considera- tions did not apply in considering the public safety and convenience. Thus we find 3 & 4 Viet. c. 97 and 5 & 6 3 & Viet. c. 55, respectively providing for returns by the rail- Cl Court restraining enforcement thereof. 3 The Commissioners are not now to be restrained by pro- hibition. Cf. sect. 17 (6). The mere fact that Railway Companies make charges in excess of those authorized by their special Act, but without any undue preference, gave the Commissioners no jurisdiction to grant an injunction restraining the excessive charge. 4 The Commissioners had also power under sect. 26 of the Act of 1873 to state a special case for the opinion of the High Court as to questions arising under sect. 1 5 of that Act. 5 Appeals from decisions of the present Commission are considered in sect. 17. The jurisdiction of the Commission and of the Board of Trade conferred by this Act is in addition to any powers and jurisdiction previously vested in them. 6 9. Where any enactment in a special Act (a) jurisdic- (a.) contains provisions relating to traffic facilities, cinmU- undue preference, or other matters mentioned ne . under in section two of the Railway and Canal Traffic special i. tne* Acts. Act, 1854, or 17 & lg Viet. c. 31. 1 Per Cockburn, L.C.J., in The Chatterly Iron Co. v. The North Staffordshire liy. Co., 3 N. & M. 250. 2 Chatterly Iron Co. v. North Staffordshire Ry. Co., ib. 239 ; The Portpatrick Ry. Co. v. The Caledonian Ry. Co., 3 N. & M. 204. ' S. E. R. v. Ry. Commissioners, 6 Q. B. D. 590 ; Toomer v. Lon. C. & D. and S. E. Rys., 2 Ex. D. 450. 4 O. W. Ry. Co. v. Railway Commissioners, 1 Q. B. D. 182. Cf. sect. 9 and n. ; and see Dislinyton Lon Works v. L. & N. W. Ry. Co., 4 Ti. Rep. 785. //all v. L. D. & S. C. Ry. Co., 15 Q. B. D. 506. Cf. 8. 52. 38 RAILWAY AND CANAL TRAFFIC ACT, 1888. (b.) requires a company to which this part of this Act applies to provide any station, road, or other similar work for public accommodation, or (c.) otherwise imposes on a company to which this part of this Act applies any obligation in favour of the public or any individual ; or where any Act contains provisions relating to private branch railways or private sidings (b), the Commissioners shall have the like jurisdiction to hear and determine a complaint of a contravention of the enactment as the Commissioners have to hear and determine a complaint of a contravention of section two (c) of the Bailway and Canal Traffic Act, 1854, as amended by subsequent Acts. (a) Under the Act of 1873, the Commissioners had no jurisdiction to enforce obedience on the part of railway com- panies to their special Acts. Indirectly by their decisions the Commissioners did this, as violation of a special Act was doubtless treated as evidence of undue prejudice, but the power of direct enforcement of these Acts was in the Board of Trade, under 7 & 8 Viet. c. 85, ss. 17, 18. 1 But, alder, if the breach of the special Act contravened also the provisions of a general Act which the Commissioners were appointed to carry out. 2 (6) The Commissioners were not apparently in accord as to their jurisdiction over private sidings. 3 (c) See sect. 8 and . Jurisdic- 10. Where any question or dispute arises (a) involving toils and the legality of any toll (&), rate, or charge, or portion of a rates. 1 Nitshill and Lesmahagow Coal Co. v. Cal. By. Co., 2 N. & M. 43. 2 Uckfidd Local Board v. L. B. & S. C. By. Co., 2 N. & M. 214 ; Brown v. O. W. By. Co., 7 .Q. B. D. 183 ; but see Di&tingfan Iron Works v. L. & N. W. Py. Co., 4 Ti. Rep. 785. 3 Beeston Brewery Co. v. M. Ry. Co., 5 Br. & M. 53 ; Oirardot, Flinn & Co. v. M. Ry. Co., ib., 60. LEGALITY OF TOLLS. 39 toll, rate, or charge, charged or sought to be charged for merchandize traffic by a company to which this part of this Act applies (c), the Commissioners shall have juris- diction to hear and determine (d) the same, and to enforce payment of such toll, rate, or charge, or so much thereof as the Commissioners decide to be legal (e). (a) Cf. sect. 7 and n. as to the persons, corporations, and bodies who may apply under the Act. (6) The Act is confined to the subject of merchandize traffic, and only touches the question of passenger traffic indirectly. Part II. sect 24, particularly deals with the tolls, rates, and charges which Eailway Companies may impose, and also with the control to be exercised by the Board of Trade. The K. C. C. Act, 1845 (8 Viet. c. 20), s. 86, authorizes railway companies to make reasonable charges and tolls; sect. 3 of the same Act, including in the word toll, any rate or charge or other payment payable under the special Act for any goods or merchandise conveyed on the railway. " Toll " means a payment, the consideration for which is the passage of passengers, carnages, or goods on the railway." l Whether a railway company carry as common carriers or in any other capacity they are equally bound not to exceed, unless expressly empowered, the authorized scale of tolls, 2 and in construction of special Act, toll clauses were held to be con- trolled by a general clause limiting the maximum charges. 3 There is a wide distinction between toll clauses proper in the special Acts and limiting charges clauses. Tolls are of three kinds road tolls, carriage tolls, and haulage tolls. The question of tolls and terminal charges is further con- sidered in Part II. sect. 24. (c) See sect. 23. 1 Per Coleridge, J., in The G. N. By. v. TJie O. N. Jty., 9 Exch. 644 ; but see per Field, J., in Brown v. O. W. By,, 9 Q. B. D., p. 750. As to the construction of Acts imposing tolls, see Pryce v. Monmouth Canal By. Co., 4 App. Gas. 197. 2 Aberdeen Commercial Co. v. G. N. 8c. By. Co. t 3 N. & M. 205. 1 Chatterly Iron Co. v. North Staff. By. Co., 3 N. & M. 214. Jurisdic- tion to order traffic facilities, notwith- standing agree- ments. Cf. sect. 37 (3) as to causes. 40 RAILWAY AND CANAL TRAFFIC ACT, 1888. (d) See section 8 and n. The Commissioners under the Act of 1873 considered their jurisdiction not limited to " hear and determine," but held they were invested with all the powers given to the Courts and Judges by sect. 2 of the Act of 1854. (e ) Cf. sect. 8, note (a). 11. Nothing in any agreement whether made before or after the passing of this Act, which has not been con- firmed by Act or by the Board of Trade, or by the Com- missioners under the Regulation of Railways Act, 1873 (a), or this Act, shall render a company to which this part of this Act applies unable to afford, or shall authorize such company to refuse, such reasonable facilities (ib) for traffic (e) as may in the opinion of the Commissioners be required in the interests of the public, or shall prevent the Commissioners from making or enforcing any order with respect to such facilities. (a) The R. C. C. Act, 1863, Part III. deals with working agreements between Bail way Companies, sect. 25 providing that such agreement must have the sanction of the Board, of Trade. Sect. 10, sub-sect. 1 of the Act of 1873 trans- ferred the powers and duties of the Board of Trade to the Cpmmissioners. 1 "- An agreement which has not been confirmed." No such agreement can have any operation which has not been con- firmed by the Board of Trade (now by the Railway Commis- sioners), 2 and after confirmation the agreement is subject to 1 As to agreements approved : see West Cork v. Hen Valley Ry. Co., 2 N. & M. 334 ; Sirhowy Ry. Co. v. L. and N. W. Ry. Co., 2 N. & M. 264. As to power of revision being invested in the commis- s^oners as incidental to power of approval, see Greenock and Wemyss Hay Ry. Co. v. Caledonian Ry. Co., 2 N. & M. 132; see also Eastern & Mid. m Co:s. Ry. Co. v. M. Ry. Co., 5 Br. & M. 235; Mid. Gt. W. of Jr. Ry' Co. v. Dublin & M-ath Ry. Co., ib., 142, ? 20 27 Viet. c. 92, ss. 25, 27. "REASONABLE FACILITIES." 41 revision and modification by the same authorities within a period of ten years. 1 (fe) No rule as to what are reasonable facilities can be laid "F down. Each case must be determined on the immediate and ties- surrounding circumstances. A company was ordered to pro- vide a station on the ground that there were no stations in use where the traffic of a particular district traversed by the railway can come or go without public inconvenience. And although the Commissioners have no power to order accommodation to be provided which entails the acquirement by the company of land which they have no immediate power to take, 2 nor to order any particular works, " nor to exercise a general control in matters of this kind over the discretion of the company as to the best means (when there is a choice of means of fulfilling their statutory obligations," yet they have jurisdiction to order such facilities even if their doing PO would necessitate the making by the company of some structural alteration of their premises. 3 In the case referred to Lord Selborne, in the course of a lengthy judgment, says : " But I cannot assent to the argument, that according to the true construction of this 2nd section, the obligation to " afford all reasonable faci- lities," &c., is circumscribed by the precise extent, capacity, and structural arrangement of the buildings, &c. " In con- sidering what is a reasonable amount of accommodation, regard must be had to the general convenience of the general traffic of the company." 4 See further sect. 25 and nn. ; and see sect. 26 as to facilities to be afforded by a grant of through rates. Where a railway charged rates in excess of those autho- rized by their special Act, it was hold that this was not a refusal of "reasonable facilities" within the meaning of 1 Cf. 36 & 37 Viet. c. 48, s. 10; and see Corp. of /Judders/bid v. 0. N. Ry. Co., per Mauisty, J., 50 L. J. Q. B. 593. * Harris v. L. and S. W. Ry., 3 Nev. & Mnc. 331. 3 8. E. Ry. Co. v. Ry. Commissioners, 6 Q. B. D. (C. A.) 591 (jwr Lord Sflborm.), and see Nidiol v. N. E. Ry. Co ,4 Ti. Rep. 464. 4 In re Barrett, 1 C. B. (N. 8.) 436. 42 RAILWAY AND CANAL TRAFFIC ACT, 1888. 17 & 18 Viet. c. 31, s. 2 (1854), but it was thought that if the overcharges were made with the intention of preventing the use by passengers of particular trains and stations, the Commissioners might have jurisdiction to entertain a com- plaint that " facilities " had not been afforded. 1 (c) "Traffic" is defined by sect. 1 of the Act of 1854 to " include not only passengers and their luggage and goods, animals, and other things conveyed by any railway company or canal company, or railway and canal company, but also carriages, waggons, trucks, boats, and vehicles of every description adapted for running or passing on the railway or canal of any such company." Power to 12. Where the Commissioners have jurisdiction to award damages, hear and determine any matter (a), they may, in addition to, or in substitution for, any other relief, award to any complaining party who is aggrieved such damages as they find him to have sustained ; and such award of damages shall be in complete satisfaction of any claim for damages, including repayment of overcharges, which, but for this Act, such party would have had by reason of the matter of complaint (b). Provided that such damages shall not be awarded (c) unless complaint has been made to the Commissioners within one year from the discovery by the party aggrieved of the matter complained of. The Commissioners may ascertain the amount of such damages either by trial before themselves, or by direct- ing an enquiry to be taken before one or more of them- selves or before some officer of their court. (a) For the purposes of the Judicature Act, 1873 (36 & 37 Viet. c. 66, s. 100), " matter" was defined to "include every proceeding in the Court not in a cause." 1 G. W. By. Co. v. By. Commissioners and Brown, 1 Q. B. D. 182 ; Aberdeen Commercial Co. v. Or. N. of Sc. Ry. Co., 3 N. & M. 205. AWARD OF DAMAGES. 43 (6) This section confers on the railway tribunal powers far in excess of those possessed by the Court of Common Pleas under the Act of 1854, or subsequently by the Railway Coinmissiuners under the Act of 1873. Contravention of the Regulation of Railways Acts could, under these Acts, be redressed by injunctions, prohibitory or mandatory, as the case required. Sect. 6 of the Act of 1854 expressly provided that no Proceed- proceeding should be taken for any violation or contraven- ' m %* if tion of that Act, except in the manner therein provided, J^^ although nothiug therein contained should take away any Act, 1854. rights or remedies of any person under existing law. No action, therefore, lies for breach of section 2 of that Act. 1 And so it is no defence to an action by a railway company to recover charges for the carriage of goods that the charges sued for are unreasonable, so as to give an undue preference to other persons, or to subject the defendant to undue prejudice or disadvantage within the meaning of the section, nor can the defendant in such an action set off, or recover by way of counterclaim, over-payments in respect of previous charges which were unreasonable within the action. 2 But after the proper tribunal has adjudged such charges to be a breach of the section, the excess so paid may be recovered in an action for extortion, 3 and inasmuch as sect. 90 of the sect. 90 R. C. C. Act, 1845, required equality of tolls under certain K- C. C., circumstances, money paid under protest for an unequal charge may be recovered in exactly the same way as if it had been money extorted by making an unreasonable charge, that is to say, by an action for money had and received. 4 And in the case of the G. W. By. Co. v. Sutton, 5 money paid without protest to satisfy an unequal charge was recovered in the same form of action. 1 The Denaby Main Colliery Co. v. M. S. & L. By. Co., 12 App. Cas. 97. 2 L. & T. Ry. Co. v. Greenwood, 21 Q. B. D. 215 ; Denaby Main Colliery Co. v. M. S. to provide a bridge, subway, cants for or approach, or any work of a similar character, the Board works. rr J . of Trade or the Commissioners^ as the case may be, may require as a condition of making the order that an agree- ment to pay the whole or a portion of the expenses of complying with the order shall be entered into by the applicants or some of them^ or such other persons as the Board of Trade or Commissioners think fit, and any of the following local authorities, namely, any sanitary authority, highway board, surveyor of highways acting with the consent of the vestry of his parish, or any other authority having power to levy rates, shall have power, if such authority think fit, to enter into any such agree- ment as is sanctioned by the Board of Trade or Com- missioners for the purpose of the order. (2.) In such case any question respecting the persons by whom or the proportions in which the expenses of complying with the order are to be defrayed may, on the application of any party to the application, or on a certificate of the Board of Trade, be determined by the Commissioners. (3.) In this section the expression " parish " shall have the same meaning as the same expression has in the Acts relating to highways ; and the expression " the 1 2 N. & M. 189. * 37 & 38 Viet c. 40, ss, 3, 6, & 7. APPEALS. 49 consent of the vestry of his parish " shall, in any place where there is no vestry meeting, mean the consent of a meeting of inhabitants contributing to the highway rates, provided that the same notice shall have been given of such a meeting as would be required by law for the assembling of a meeting in vestry. Appeals. 17. (1.) No appeal shall lie from the Commissioners Appeals on upon a question of fact (a), or upon any question regard- questions ing the locus standi of a complainant. court'of" ' (2.) Save as otherwise provided by this Act, an appeal appeal- shall lie from the Commissioners to a superior court of ' sec ' 7 ' appeal (6). (3.) An appeal shall not be brought except in con- formity with such rules of court as may from time to time be made in relation to such appeals by the authority having power to make rules of court for the superior court of appeal (e). (4.) On the hearing of an appeal the court of appeal may draw all such inferences as are not inconsistent with the facts expressly found, .and are necessary for deter- mining the question of law, and shall have all such powers for that purpose as if the appeal were an appeal from a judgment of a superior court, and may make any order which the Commissioners could have made, and also any such further or other order as may be just, and the costs of and incidental to an appeal shall be in the discretion of the court of appeal, but no Commissioner shall be liable to any costs by reason or in respect of any appeal (c). (5.) The decision of the superior court of appeal shall be final : Provided that where there has been a dif- E 50 RAILWAY AND CANAL TRAFFIC ACT, 1888. ferenoe of opinion between any two of such superior courts of appeal, any superior court of appeal in which a matter affected by such difference of opinion is pending may give leave to appeal to the House of Lords, on such terms as to costs as such court shall determine (d). (6.) Save as provided by this Act, an order or pro- ceeding of the Commissioners shall not be questioned or reviewed, and shall not be restrained or removed by prohibition, injunction, certiorari, or otherwise, either at the instance of the Crown or otherwise (e). What con- () Cf. sect. 5 (3). stitutes It is difficult to lay down any definition of what constitutes fa"? 11011 f a an< ^ ** * 8 submitted that many questions on which the Commissioners have previously refused to state a case for the superior court, contained elements of law which, would have justified them in allowing parties to take the opinion of a higher tribunal. Reasonable The question whether reasonable facilities were provided facilities w ithin 17 & 18 Viet. c. 31, s. 2, was held to be one of fact. 1 So "un- So the question whether " undue " or " unreasonable " due " pre- preference had been shown was held to be one of fact. 2 Through ^ n< * * n a through rate case it was held that the decision rate case, was based on a question of fact and not of law. 3 In the case of the Aberdeen Commercial Co. v. G. N. of Sc. By. Co.,* an article was carried by the railway company which had come into existence subsequently to their special Act. The Commissioners decided that the words in that Act must be construed to include words ejusdem generis, and 1 Watkinson v. Wrexham By. Co., 3 N. & M. 13, and see per Erie, C.J., in Palmer v. L. & S. W. By. Co., 1 N. & M. 248. 2 Dendby Main Collieries Case, 3 N. & M. 441 ; The Dipnws Casson Slate Co. v. Festiniog By. Co., 2 N. & M. 284 ; The Bhymney By. Case, 5 Ti. Rep. ; but see Hall v. L. B. & S. C. By. Co., 4 Br. & M. 421. 3 Central Wales & Carm. Jn. By. Co. v. G. W. By. Co., 2 N. & M. 191. 3 N. & M. 205. ENFORCEMENT OF ORDERS. 51 hold the now merchandise to be within the Act, and that the question was one of fact. (6) The " Superior Court of Appeal " means in England the C.A. of the Supreme Court. 1 (c) For rules applicable to appeals from the High Court, see Eules of the Supreme Court (1883), Order LVIII. As to the C.A. drawing inferences of fact, Order LVIII. r. 4. (d) This provision will have the effect of securing uni- formity of decision. (e) Cf. section 18 (2). Formerly, if the Commissioners acted beyond their powers prohibition lay notwithstanding the power of the Court of Common Pleas over Eailways under 17 & 18 Viet. c. 31, was transferred to the Commis- sioners by 36 & 37 Viet. c. 48 ; 2 but if the Commissioners erroneously came to the conclusion that there was evidence before them of a breach of the Acts they were appointed to administer, this was an error of law on matters within their jurisdiction, and was not a matter for prohibition but for appeal. So much of section 26 of the Act of 1873 as enabled the Commissioners to review their orders, or, in certain matters to state a case for the superior Court is repealed. 3 In Hall v. L. B. & S. C. By. Co,,* it was held that the provisions of sect. 26 gave the Commissioners power to state a case under sect. 1 5 of the same Act, but no appeal lay to the Court of Appeal from the Divisional Court. 5 Supplemental. 18. (1.) For the purposes of this Act the Commis- General sioners shall have full jurisdiction to hear and determine e,"-' 1 " all matters whether of law or of fact (a), and shall as mc . nt of . orders. 1 For definition of Superior Court of Appeal, sec sect. 65. * 8. E. Ry. Co. v. Railway Commissioners, C Q. 13. D., C. A. 580 ; Toomer v. L. C. & D. Ry. Co., 450 3 Section 59, and Schedule. 4 15 Q. B. D. 505. 6 17 Q. B. D. 230. E 2 52 SAIL WAY AND CANAL TRAFFIC ACT, 1888. respects the attendance and examination of witnesses, the production and inspection of documents, the enforce- Cf. sec. 25 nient of their orders (I), the entry on and inspection of of the Act J of 1873 property, and other matters necessary or proper for the (repea e > ^ Q exercise of their jurisdiction under this Act, or otherwise for carrying this Act into effect, have all such powers, rights, and privileges as are vested in a superior court: Provided that no person shall be punished for contempt of court, except with the consent of an ex- officio commissioner. (2.) The Commissioners may review and rescind or vary any order made by them ; but, save as is by this Act provided, every decision or order of the Commis- sioners shall be final (c). (a) Cf. ss. 8, and 10, and nn. (b) Sect. 26 of the Act of 1873 provides that any order of the Commissioners may be made a rule or order of a superior Court, and shall be enforced in the manner directed by sect. 3 of the Act of 1854. This is not repealed, but the present section appears to contain ample powers for the enforcement of the orders and decisions of the Commissioners. Cf. Gen. Orders under Act of 1873, 29-36. (c) Cf. sect. 17 (6). Costs. 19. The costs of and incidental to every proceeding before the Commissioners shall be in the discretion of the Commissioners, who may order by whom and to whom the same are to be paid, and by whom the same are to be taxed and allowed (a). (a) Sect. 28 of the Act of 1873 was as follows : " The costs of and incidental to any proceeding before the Commissioners shall be in the discretion of the Commissioners." Under this section it was held that no greater power could be exercised over costs than was exercised by the Court of Chancery pre- viously to the Judicature Acts, and that the section ought COSTS. 53 to bo construed in the same manner as Order LV. (now Order LXV. r. 1) of the Rules of the Supreme Court. 1 Where the applicants substantially succeeded they were held to be entitled to their costs, 2 and where the charges made by a railway company were greatly in excess of those which the Commissioners deemed to be reasonable, the company was ordered to pay costs. 3 A railway company refusing to shew their rate books at their stations (see sect. 13) had to pay costs of proceedings consequent on such refusal. 4 But in a new through rate case it was not the practice of the Commissioners to give costs, the defendants having a right under the Act of 1873 to the judgment of the Commis- sioners before a through rate is put into operation ; 6 and where the sums decided by the Commissioners to be reason- able to be charged for terminal services were much in excess of the offer of the applicant, and below the contention of tho company, no order was made as to costs. 6 By the General Order 39, made in pursuance of sect. 29 of the Act of 1873, costs, when taxed, could be recovered by making the order of the Commissioners a rule of a superior Court. Sect. 34 of that Act directed taxation if required. 20. (1.) The Commissioners may from time to time, Power to with the approval of the Lord Chancellor and the Presi- make rules< dent of the Board of Trade, make, rescind, and vary general rules for their procedure and practice under this 1 Foster v. G. W. Ry. Co., 8 Q. B. D. 615. 1 Neston Colliery Co. v. L. & N. W. Ry. Co.. 4 Br. & M. 268. 8 Berry v. L. C. & D. By. Co., 4 Br. & M 310. 4 Clonmel Traders and Others v. The Waterford and Limerick Ry. Co., 4 Br. & M. 92. 6 Central Wales and Car. In. Ry. Co. v. 0. W. Ry. Co., 4 Br. & M. 110 ; /. of W. Newport Jn. Ry. Co. v. L of W. Ry. Co., 4 Br. & M. 128. Coxon v. N. E. Ry. Co., 4. Br. & M. 284 ; and sou as to exorcise of discretion as to costs in the High Court, Witt v. Corcoran, 2 C. D. 69; Dicks v. Yatts, 18 C. D. 76; Dufaur v. Sigel, 4 Do U. M. & G. 523; Cooper v. Whittinyham, 15 C. D. 501. 54 RAILWAY AND CANAL TRAFFIC ACT, 1888. Act, and generally for carrying into effect this part of this Act (a). (2.) All rules made under this section shall be laid before Parliament within three weeks after they are made, if Parliament is then sitting, and if Parliament is not then sitting, within three weeks after the beginning of the then next session of Parliament, and shall be judicially noticed, and shall have effect as if they were enacted by this Act. (a) Semble, if the rules should go beyond the Act, or extend the jurisdiction of the Act, they would be ultra vires. 1 Appoint- 21. (1.) There shall be attached to the Kailway and officers, Canal Commission such officers, clerks, and messengers erks, &c. M t ^ e j^ or chancellor, with the consent of the Treasury as to number, from time to time appoints (a). (2.) There shall be paid to each of such officers, clerks, and messengers, such salaries as the Treasury from time to time determine. (a) The Act of 1873 (sect. 24) gave the Commissioners power to appoint the officers and clerks. Salaries, 22. The salaries of the appointed Commissioners, and &c pea of all officers, clerks, and messengers attached to the Railway and Canal Commission, and all the expenses of the said Commission of and incidental to the carrying out of this Act, shall be paid out of moneys to be pro- vided by Parliament. Company 23. This part of this Act shall apply to any railway Tart i. company, and to any canal company, and to any railway applies. / N and canal company (a). (a) See sects. 10, 11, 14, and 16. Of. sect. 46. Per Wills J., In re Hewitt, 15 Q. B. D. 108. HE VISED CLASSIFICATION. 55 PART II. TRAFFIC. 24. (a) (1.) Notwithstanding any provision in any Revised general or special Act, every railway company shall ti^of" submit to the Board of Trade a revised classification (&) tr * ff ' c * nd , v ' schedule of of merchandise traffic (c), and a revised schedule of maxi- rates. mum rates and charges applicable thereto, proposed to be charged by such railway company, and shall fully cf. sect. 33. state in such classification and schedule the nature and amounts of all terminal charges proposed to be authorized in respect of each class of traffic, and the circumstances under which such terminal charges are proposed to be made ( 1883< CLASSIFICATION OF TRAFFIC. 59 (a) This section is, without doubt, one of the most remark- able in the Act, both on account of its probable effect on the trade of the country, and the economic principles involved. It contains 13 sub-sections, and, with the intendment of revision, classification of traffic, and schedule of rates, pro- vides respectively for the cases in which the Board of Trado and the railway company are in agreement, and those in which the Board of Trade and the railway company not being able to agree, the former shall deal with the matter on their own responsibility. Put shortly, the procedure in these cases respectively is as follows : * Firstly. Within six months from the passing of the Act every railway company shall submit to the Board of Trade (1) a revised classification of merchandise traffic ; and (2) a; revised schedule of maximum rates and charges applicable thereto ; (3) stating in such classification and schedule the nature and amounts of all proposed terminal charges. The Board of Trade may, in their discretion, hear objections to the scheme proposed by the railway company and (if possible) come to an agreement as to the proposed classifica- tion and schedule. Secondly. But if the Board of Trade and the railway company are unable to agree, or if the railway company fails as required by this section to submit a classification and schedule, then the Board of Trado shall determine the classification of traffic and schedule of maximum rates and charges which would in their opinion be just and reasonable. In either case the Board of Trade, after preparing, revising, and settling the classification and schedule, shall make a report to be submitted to Parliament. The classification and schedule is to be embodied in a Provisional Order, and confirmed by a public general Act ; and after the passing of such Act the rates and charges mentioned in the Provisional Order are the rates and charges which the railway company shall be entitled to make and charge. It is to be observed that the action of the Board of Trado is preparatory only, and that the revised scale will not como into force until it has been before the public during ono 1 For rules issued by the Board of Trade .to railway companies under this section and section 35, see Appendix B. 60 RAILWAY AND CANAL TRAFFIC ACT, 1888. session, and has boon confirmed by Act of Parliament. Thus the railway companies are given opportunity of discussing the question so vital to them. Sub-s. 8 provides that while any Bill to confirm the Provisional Order is pending in either House of Parliament, the matter shall, upon petition, be referred to a Select Committee, and the Bill be dealt with as to appearance and opposition, like a private Bill. (6) The revision of the tolls and charges made by railway companies has previously been the subject of legislation, 1 and the Railway Clearing House 2 classification is the result of a continual effort to adapt charges to new condi- tions of trade and manufacture. Classifica- ^he difficulty of settling some uniform classification of goods for the whole kingdom as recommended by the Eailway Kates Committee, has been recognised in sub-sec. 9. An inspection of the earlier Railways Acts seems to show that the basis of classification was the value, the nature, or the bulk of the goods carried ; but as the late Mr. Grierson points out, " Goods coming under the same generic name often vary considerably in cubical contents in proportion to weight, value, and risk of damage, as well as in the extent to which they are carried ; all considerations not to be for- gotten in constructing a uniform classification." 3 Amongst themselves, railway companies have a system of classification for purposes of the clearing house, but at present traders rely on the application to a company to quote a specific rate. (c) By Section 55, the term merchandise " includes goods, cattle, live-stock, and animals of all descriptions." Sect. 87 of the Railway Clauses Act, 1845, enacts that the charges made by the railway companies are to be reasonable, and sect. 90 of that Act gives power to the companies to vary the tolls taken to "accommodate them to the circumstance of the traffic ; " but so that there shall be equality of charge to all persons under like circumstances. 4 1 7 & 8 Viet. c. 85, s. 1. 2 Railway Clearing Act, 13 & 14 Viet. c. 33. 8 Railway Rates, by T. Grierson, p. 83. * Dendby Main Collieries Co. v. L. N. S. & L. liy. Co., 15 App. Cas. p. 113. HATES. 61 In deciding as to the reasonableness of charges m posed Rates, the Commissioners appear in later days to have based their conclusions on cost of service, and excluded the factor of competition. 1 Yet the Courts in the earlier cases appear to have recognised the legality of rates framed to meet com- petition, 2 although rates could not be lowered for the pur- pose of making a trade, 3 competition as a basis for rates, appears to have been sanctioned in Richardson v. M. By. Co., 4 and in The Broughton Coal case. 5 Cost of service is very difficult to calculate, and bears no relation to the value of goods carried. Again, equal mileage rates would in many cases operate with great harshness on railways, as such a basis of rates would take no account of the original cost of construction, gradients, amount of traffic, and extent of back haulage of empties, &c. 6 Other cases on rates are noticed under the head of Undue Preference. Stated shortly, it seems that a company must confine its operations to present business and profits, and not shape a course with a view to a possible future extension of its enterprise. Probably the Commis- sioners in dealing with the companies and traders will follow the dictum of Cresswell, J., 7 " After a good deal of consideration, we think the fair interests of the railway ought to be taken into account." (d) Cf. sect. 33 ; (3) and sect. 35. (e) Cf. sect. 55, defining terminal charges as being Terminals. " Charges in respect of stations, sidings, wharves, depots, warehouses, cranes, and other similar matters, and of any services rendered thereat." No question in the administration of railway law has given rise to greater difficulty than tho question of charges made by tho railway companies in respect 1 Nitshill and Lesmahayow Coal Co. v. < ahdonian Ry. Co., 2 N. & M. 39 ; but see Thompson v. L. & N. W. By. Co., 2 N. & M. 115. 2 Ransome v. E. Co. Ry. Co., 26 L. J. U. P. 91. 8 Oxlade v. N. E. Ry. Co., 26 L. J. C. P. 129. 4 4 Br. & M. 1. Ib. 191. 6 See Rej>ort of Committee of 1881-2, p. ix. 7 Ransome v. Eastern Counties lly. Co., 26 L. J. C. P. 91. AH to parcels, see Parker v. G. W. Ry. Co., 6 E. & 13. 107. 62 RAILWAY AND CANAL TRAFFIC ACT, 1888. of terminal services, i.e. services which companies perform for their customers beyond the more carrying of their goods. When the earlier Acts were passed it was supposed that railway, like canal companies, would be mere owners of the route. A state of things was contemplated in which the railway companies would furnish the railway merely, 1 and, leaving the business of loading, haulage, and the like to for- warding companies, take toll 2 for the use of the line. (See Hall v. L. B. & S. C. By. Co., considered infra.) And "tolls " were considered apart from "charges." " What determines whether a charge is a rate or a toll, is not who provide carriage, or who provide the engine, but who are the carriers." 3 The maximum tolls were fixed on this idea, and we do not find terminal charges referred to in the Eailway Clauses Acts. But as railway companies became not only owners of their line, but carriers of the traffic thereupon, they, as carriers, provided stations, sidings, warehouses, cranes, and other fixed plant, which had in many cases been previously provided or leased by private firms. They also provided labour and appliances for loading, unloading, covering, collecting, and " Station " delivering traffic. Thus " terminals " are appropriately con- fine " ter-~ ^dered as " station terminals " and " handling terminals." minals. Although early recognised as equitable in principle, 4 these charges continued to be made, but it was held that charges made for terminal services, over and above the tolls authorized to be taken by the special Acts could not, in the absence of agreement in that behalf, be recovered. 8 Six miles Moreover as a terminal charge was, in early special Acts, clause. 1 Per Cotton, L.J., North Central Wagon Co. v. M. S. & L. Ry. Co., 3 Ti. Rep. 405 ; Cf. 11. C. C, Act, 1845, ss. 86-97. 2 Per Jessel, M.R., Brown v. G. W. Ry Co., 9 Q. B. D., p. 759. ; per Cockburn, C.J., Garton v. Bristol and Exeter Ry. Co., 30 L. J. Q. B. 295 ; Pryce v. Monmouthshire Ry. Co., 4 App. Gas. 197. 8 Watkinson v. Wrexham M. & C. Ry. Co., 3 N. & M. 11. 4 " If it should ever come to be decided, it is certainly very doubtful whether the use of the railway on payment of tolls will include the use of the station : " M. Ry. Co. v. The Amberyatc Ry. Co., 10 Hare, 370. 6 Pcgler v. Monmouthshire lly. Co., 30 L. J. Ex. 249. TERMINALS. 63 authorized in respect of traffic conveyed a less distance than six miles, 1 it was argued that the maximum mileage rate was intended to cover all charges on traffic conveyed beyond that distance. But it was felt that if the railway companies stood upon their strict rights as common carriers, vast inconvenience would result to traders, 2 and the legislature has for many years inserted a clause in the special acts of railway com- panies authorizing a reasonable charge for services other than those properly " incidental " to the duties of a carrier, or to conveyance. The Act of 1868 3 imposed on companies the duty of distinguishing between the charges made re- spectively for conveyance and terminal services. Sect. 15 of the Act of 1873, gave the Commissioners power to hear and determine questions in regard to, and to fix, terminal charges. Under this section arose the case of Hall v. L. B. & S. By. Co. 4 before referred to. This was a case under a special Act, which provided (inter alia) " The maximum rates of charges to be made by the company for the conveyance of animals and goods including the tolls, for the use of their railway, and waggons, and trucks, and for locomotive power, and every other expense incidental to such conveyance (except a reasonable sum for loading, covering, and unloading the goods at any terminal station of such goods, and for delivery and collection, and any other services incidental to the duty or business of a carrier where such services or any of them are, or is to be per- formed by the company), shall not exceed," &c. And it was held that station accommodation, the use of the sidings, weighing, checking, clerkage, watching, and labelling, provided and performed by the company in respect of goods traffic carried by them as carriers may be ; and prima facie are, services " incidental to the duty or business of a carrier " within the section whether they are so in 1 Such distance not being part of a longer continuous route : L. tfc Y. Ry. Co. v. Gidlow, 42 L. J. Ex. 129. 2 Per. Bramwell, B., ib. p. 252. 8 31 & 32 Viet. c. 119, B. 17. 4 15 Q. B. D. 505. 64 RAILWAY AND CANAL TRAFFIC ACT, 1888. any particular case is a question of fact for the Railway Commissioners to decide, and if found by them to be so, such services may be the subject of a separate and reasonable charge in addition to the rates prescribed" The judgment is so important, that it is, in part, here set out. " It is to be observed at the outset, that neither by the Hall v. L. Railway Clauses Consolidation Act, 1845, nor by any part B. &s. C. o f the legislation specifically applicable to the London, Brighton, and South Coast Railway Company, are the Com- pany under any obligation to carry either passengers or goods. By sect. 86 of the Act of 1845, power is given to the company to provide their own engines, carriages, and trucks, and to become carriers ; but the railway is treated as a highway, which, upon payment of the authorized tolls, any person or company is entitled to use, with his or their own engines, or carriages, or trucks (sect. 92), subject only to proper regulations as to times of departure, arrival, speed, and the like, to be made by the company (sect. 108), and it is worthy of remark, that the authority to make regu- lations under which most of those now in force on the various railways throughout England, by which the comfort and freedom from annoyance of passengers may be secured, have been made, is conferred in words which have no specific reference to the carriages of the company, but which speak of carnages " using the railway," and are equally applical/le to the vehicles of persons paying tolls, using their own trains, and themselves being carriers of passengers under sect. 92. This notion of the railway being a highway for the common use of the public, in the same sense that an ordinary high- way is so, was the starting-point of English railway legisla- tion. It is deeply engrained in it. In the early days of railways it was acted upon at least occasionally, and in respect of goods traffic, and although it enters but slightly into modern railway practice, no proper understanding of a good deal of our railway legislation, and pre-eminently of clauses relating to tolls or charges, can be arrived at, unless it is firmly grasped and steadily Itept in view. Three states of things were from this point of view to bo expected and to be pro- vided for by legislation. The company might be merely the owners of a highway, and toll-lakers for the use of it by TERMINALS. 65 other people with their own carriages and locomotives. That state of things would be worked out by the railway company possessing the mere line of railway from end to end, and by the persons making use of it, buying or renting contiguous land whereon to keep their rolling-stock, and have their offices, availing themselves of the powers of sect. 76 of the Act of 1845, and getting on to the railway by means of sidings connected with the railway." " A second state of things, as we know from the evidence in this case, to which, by the consent of the parties we are at liberty to refer, prevailed extensively for many years after the railway system was in full operation, and for some years at least after the passing of the Act of 1845. The railway company provided the line and provided the engines and trucks ; but they were not carriers. The large warehouses and sheds wherein goods were received, sorted, loaded, covered, checked, weighed, and labelled, and trucks or carriages mar- shalled and prepared for convenient removal to their various places of destination a corresponding work was done in respect of goods arriving from a distance the staff of clerks, book-keepers, porters, workmen, and horses necessary for these operations, were all provided and maintained at the expense of the carrier, and no portion of it fell upon the company. The company, on the other hand, as owners of the rolling-stock, for the use of which, as well of their railways, they received payment, provided whatever accommodation they needed, in order to keep in convenient proximity to the places where the carrier had his depots, the necessary supply of rolling-stock." " The third state of things, which might exist simultaneously with the second, or might be the one prevailing exclusively on a particular line, existed when the company were them- selves the carriers of the goods, and when as carriers, they provided the accommodation and performed the services above described." " The company might thus be : 1. Toll-takers, and neither conveyers nor carriers ; 2. Conveyers, but not carriers ; 3. Carriers. It would naturally be expected, that in the first case they would have powers to take toll?, and tolls only ; and that in the second, they would have power to make F 66 It AIL WAY AND CANAL TRAFFIC ACT, 1888. charges, which should include tolls and charges for the use of rolling-stock; and it would seem reasonable enough that (inasmuch as they would probably have much greater facilities for keeping and using their rolling stock to ad- vantage and with economy than any other person could have) where they provided both trucks and locomotives, as well as took toll, the maximum charge should be lower than the aggregate of the three separate charges which they might make for 1. Use of railways; 2. Use of carriages; 3. Loco- motive power." "It was proved before the Railway Commissioners, and is not disputed, that the actual cost to the company of the accommodation and services, which, for many years after the railway system was very largely developed, and all the prin- cipal lines in the kingdom were at work, were on some of the most important railways in England provided by indepen- dent carriers, and did not fall upon the railway company." " The providing of station accommodation appears to us to be capable of falling under the definition of ' services inci- dental to the duty or business of a carrier ' . . . . the line we should draw being, that whatever is necessary for ' convey- ance ' being all capable of being measured by the distance travelled, that is, by the mileage rate." The present section, although governed by the definition referred to (p. 61), appears to adopt in substance existing law, and to give the Commissioners considerable discretion. It must be borne in mind, that terminal services are not susceptible of calculation on a mileage rate, and that such services are by no means demanded in equal proportion by all traders, or by all classes of goods. Haulage and shunting and marshalling traffic, have been held to be incidental to conveyance, and so back haulage. 1 Providing and working signals at a junction with a colliery-siding was held to be the subject of special charge. 2 1 Dunkirk Colliery Co. v. M. S. & L. By. Co., 2 N. & M. 402 ; but see Chattei-ley Iron Co. v. N. Staff. By. Co., 3 N. & M. 238, and L. & Y. By. Co. v. Oidlow, L. R. 7 Eng. & Ir. App. 517. 2 Dunkirk Colliery Co. v. M. S. & L. By. Co., sup. ; L. & Y. By. Co. v. Qidlow, sup. Til ROUGH TRAFFIC. 67 But not where the junction was on a branch line belong- ing to the company. 1 Qusere, is covering goods such a service : Coxton v. N. E. Ry. z Advising consignee of arrival of goods is a service incidental to conveyance. 1 So invoicing. 3 The definition of "terminal charges" seem to cover the case of Locke v. N. E. By, Co.,* in which it was doubted if unloading into a depot was the ground for a special charge. Where a company carried coals at a statutory charge, delivered them at the defendant's wharf, and allowed the defendant, in consideration of paying a specified reasonable charge, to weigh the coals with a machine belonging to the company, it was held that the charge was not ultra vires.* (/) Gf. Sect. 7 (6). ({/) Cf. Sect. 7. (A) Cf. sub-sects. 8 and 10. The Bill may be referred to a Select Committee, or to a joint committee of both Houses, if the two Houses of Parliament think fit so to order. (i) Cf. sub-sects. 1 and 9, and see note to sub-sect. 1. It is submitted that this sub-sect, must be read as if it in terms referred to the statutory powers and requirements of the Railway Companies. 25. Whereas by section two of the Railway and Canal Provisions Traffic Act, 1854, it is enacted that every railway com- through pany and canal company, and railway and canal com- tr pany shall, according to their respective powers, afford all reasonable facilities for the receiving and forwarding and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles; and that no such com- pany shall make or give any undue or unreasonable 1 Netton Colliery Co. v. L. & N. W. Ry. Co., 4 llr. & M. 'Jfi 2 76. 284. 8 /. of W. L'y. Co., 4 Br. & M. 128. 4 t P,r. & M. II. 6 /,. < AT. W. fly. d,,. v. PHca, 1 I Q. 15. l>. I*',. F 2 68 RAILWAY AND CANAL TRAFFIC ACT, 1888. preference or advantage to or in favour of any particular person or company, or any particular description of traffic, in any respect whatsoever, or shall subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or dis- advantage in any respect whatsoever; and that every railway company and canal company and railway and canal company having or working railways or canals which form part of a continuous line of railway, or canal or railway and canal communication, or which have the terminus station or wharf of the one near the terminus station or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding by one of such railways or canals all the traffic arriving by the other, without any unreasonable delay, and without any such preference or advantage or prejudice or disadvantage as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways or canals or railways and canals as a continuous line of communi- cation, and so that all reasonable accommodation may by means of the railways and canals of the several companies be at all times afforded to the public in that behalf : And whereas it is expedient to explain and amend the said enactment : Be it therefore enacted, that What in- Subject as herein- after mentioned, the said facilities (a) to be so afforded are hereby declared to and shall rates. include the due and reasonable receiving, forwarding, and delivering by every railway company and canal company and railway and canal company, at the request of any other such company (b), of through traffic to and from the railway or canal of any other such company at through rates, tolls, or fares (in THROUGH TRAFFIC. 69 this Act referred to as through rates) (c) ; and also the due and reasonable receiving, forwarding, and delivering by every railway company and canal company and railway and canal company, at the request of any person interested (d) in through traffic, of such traffic at through rates: Provided that no application shall be made to the Commis- sioners by such person until he has made a complaint to the Board of Trade under the provisions of this Act as to complaints to the Board of Trade of un-cf.seet.3i. reasonable charges, and the Board of Trade have heard the complaint in the manner herein provided. Provided as follows : (1.) The company or person requiring the traffic to be Persons forwarded shall give written notice of the pro- [raffic tcfbe posed through rate (e) to each forwarding com- f ?'T, ar ^ d pany (/), stating both its amount and the route written by which the traffic is proposed to be for- warded (g) ; and when a company gives such notice it shall also state the apportionment of the through rate. The proposed through rate may be per truck or per ton (h) : (2.) Each forwarding company shall, within ten days, if proposed or such longer period as the Commissioners * t r s ugh may from time to time by general order pre- objected to. scribe, after the receipt of such notice, by written notice inform the company or persons requiring the traffic to be forwarded, whether they agree to the rate and route ; and if they object to either, the grounds of the objec- tion: (3.) If at the expiration of the prescribed period no such objection has been sent by any forwarding 70 RAILWAY AND CANAL TRAFFIC ACT, 1888. company, the rate shall come into operation at such expiration : (4.) If an objection to the rate or route has been sent within the prescribed period, the matter shall be referred to the Commissioners for their decision : Where (5.) If a n objection be made to the granting of the Commis- , , . . in sioners rate or to the route, the Commissioners shall : t " (|: consider whether the granting of a rate is a due and reasonable facility in the interest of the public, and whether, having regard to the circumstances, the route proposed is a reason- able route, and shall allow or refuse the rate accordingly, or fix such other rate as may seem to the Commissioners just and reasonable (i) : Apportion- (Q^ Where, upon the application of a person requiring through traffic to be forwarded, a through rate is agreed to by the forwarding companies, or is made by order of the Commissioners, the apportionment of such through rate, if not agreed upon between the forwarding companies, shall be determined by the Commissioners : (7.) If the objection be only to the apportionment of the rate, the rate shall come into operation at the expiration of the prescribed period, but the decision of the Commissioners, as to its appor- tionment, shall be retrospective ; in any other case the operation of the rate shall be suspended until the decision is given : (8.) The Commissioners, in apportioning the through rate, shall take into consideration all the cir- cumstances of the case, including any special expense incurred in respect of the construction, STEAM VESSELS. 71 maintenance, or working of the route, or any part of the route, as well as any special charges which any company may have been entitled to make in respect thereof : (9.) It shall not be lawful for the Commissioners in Mileage rates. any case to compel any company to accept lower mileage rates (k) than the mileage rates which such company may for the time being legally be charging for like traffic carried by a like mode of transit on any other line of com- munication between the same points, being the points of departure and arrival of the through route. Where a railway company or canal company use, steam i vessels maintain, or work, or are party to an arrangement for using, maintaining, or working steam vessels for the pur- pose of carrying on a communication between any towns or ports, the provisions of this section shall extend to such steam vessels, and to the traffic carried thereby (I). When any company, upon written notice being given When as aforesaid, refuses or neglects without reason to agree negiects^r to the proposed through rates, or to the route, or to the r ^ t es to apportionment, the Commissioners, if an order is made through by them upon an application for through rates, may order the respondent company or companies to pay such costs to the applicants as they think n't. (a) Sect. 11 of the Act of 1873 is repealed; the present section embodies all the previous law therein contained. As to " facilities " see sect. 11, and n. (6) p. 41. The facilities are required to be reasonable for receiving, and forwarding, and delivering traffic. 1 17 & 18 Viet, c. 31, s. 2. 72 BAIL WAT AND CANAL TRAFFIC ACT, 1888. Facilities. Collection of traffic from private sidings is a reasonable facility for which the company may not further impose terminal charges. 1 Qusere, if a railway company is bound by a special Act to weigh coal at the point of discharge, such weighing is a facility within the section. 2 Or to supply waggons. 3 But though a company may be ordered to afford facilities involving structural alterations, it will not be unreasonably ordered to construct a station, nor will any particular plan be prescribed. 4 " The Traffic Act, 1854, does not compel a railway com- pany to find reasonable accommodation for the public further than as it is in the interests of the public that it should be found." 8 "In considering what is a reasonable amount of accommodation, regard must be had to the convenience of the general traffic of the company." 6 Overcharges preventing use of particular stations are a refusal of facilities. 7 Where running powers exist, working of signals was held a due and reasonable facility." (6) The smallest company stands on a footing of equality with the largest. 9 The right to apply under this section extends to inter- mediate as well as terminal companies. 10 1 Watkinson v. WrexJiam, Mold and Connahs Quay By. Co., 3 N. & M. 5 and 447 ; Beeston Brewery Co. v. M. E. Ey. Co., 5 Br. & M. 53. 2 2b. p 452. 8 Tharsis Sulphur Co. v. L. & N. W. Ey. Co., 3 N. & M. 455. * S. E. Ey. Co. v. Ey. Commissioners, ante ; Local Board of Newing- ton v. N. E. Ey. Co., 3 N. &. M. 306 ; Harris v. L. & S. W. Ey. Co., ib. 331. 6 Holyhead Local Board v. L. & N. W. Ey. Co., 4 Br. & M. 37. 6 In re Barrett, 1 C. B. (N.S.) 436, per Cresswell, J. 7 G. W. Ey. Co. v. Brown, 7 Q. B. D. 183 ; Aberdeen Com. Co. v. Gt. N. of Sc. By. Co., 3 N. & M. 205 ; Chatterley Iron Co. v. N. Sta. Ey. Co., 3 N. & M. 238 ; Young v. Gwendrarth Ey. Co., 4 Br. & M. 247. 8 G. W. Ey. Co. v. Bristol Port Ey. Co., 5 Br. & M. 94. 9 Severn and Wye Ey. Co. v. G. W. Ey. Co., 5 Br. & M. 159 ; Newry and Armagh Ey. Co. v. Gt. N. of Ir. Ey. Co., 3 N. & M. 28. 10 Ventral Wales Ey. Co. v. G. W. Ey. Co., 2 N. & M. 191. THROUGH TRAFFIC. 73 (c) The corresponding section in the Act of 1873 applied not only to mileage, but gross tolls, and special charges, and the Commissioners had power to grant a through toll without annexing to it a through rate. 1 " Tolls " includes tolls levied for use of a canal. 2 (d) In the Ayr Harbour Trustees v. Glasgoic & S. W. By. Co., it was held that a harbour board had no locus standi under sect. 11 of the Act of 1873. 3 As to an " interest in the through rate," see The Severn & Wye Ey. Co. v. G. W. By. Co. ;* The Warwick Canal Co. v. The Birmingham Canal Co. 6 It will be observed that the section gives private traders power to do that which formerly only a company could do. (e) Through rates are further considered under sect. 26. Formerly one of the conditions under which through rates could be obtained was the application by one of the railway companies concerned. Practically the railway company represented the trader. 6 Now apparently the through rate is included in the facilities which may be demanded by any of the parties named in sect. 7. (/) Where the through route proposed commenced and terminated off the forwarding company's line, and the applicants had no rolling-stock, and did not work their railway, it was held that they could apply for a through rate, and the traffic required to be forwarded was traffic to and from the applicant's railway. 7 The company requiring traffic to be forwarded need not themselves be a forwarding company. 8 (g) The section enjoins " reasonable " facilities. 1 Warwick and Birm. Canal Kav. v. Proprietors of the Sir. Canal Nav., 3 N. & M. 113. 2 Ib. 8 4 Br. & M. 81. 4 5 Br. & M. 157. 6 5 Ex. Div. 1. fl Severn and Wye and Severn Bridge Ry. Co. v. 0. W. Ry. Co., 6 Br. & M. 158 ; and (No. 2) Ib. 181. 7 Central Wales Ry. Co. v. 0. W. Ry. Co., 10 Q. B. D. 231. 8 Oreenock and Wemyss Bay Ry. Co. v. Caledonian Ry. Co., 3 N. & M. 145. 74 HAIL WAY AND CANAL TRAFFIC ACT, 1888. The route proposed, therefore, must be reasonable, 11 and the rates granted in the interest of the public. 2 Cf. sub.-s. (5). Exceptional expenditure will be considered in apportioning through rate. 3 (Ji) Although the cost of conveyance per truck may be approximately ascertained, such a basis of rates can hardly be in the interest of the customer. It is perhaps a reasonable arrangement where the railway companies act merely as toll-takers. 4 (t) The last words are new, and appear to give the Commissioners power to fix rates over the railway system. Cf. sect. 26 and . " We have nothing to say to the more or less of the amount of a proposed through rate as regards its being adjusted with any precision to the service to be per- formed. The amount, indeed, must not be too much, and it must not be too little . . . although we may be of opinion that some other amount would be more equitable. Yet, unless we are prepared to refuse the rate altogether, we have no alternative but to accept the amount proposed to us." 5 (fr) In the Warwick and Birmingham Canal case, 6 it was held that the " mileage rates " must be mileage rates for a line having the same termini as the tlirough route, and must be charged in respect of goods carried over it for its whole length. (Z) " The operation of the clause extends to the whole of the section, and takes effect whenever there is an arrange- ment with proprietors of steam vessels for the conveyance of 1 Caledonian Ry. Co. v. N. British Ry. Co., 3 N. & M. 403 ; East and West Jn. By. Co. v. O. W. Ey. Co., 1 N. & M. 331 ; Severn and Wye Ry. Co. v. G. W. Ry. Co., 5 Br. & M. 157 (as to apportionment, see p. 1G6). 2 Caledonian Ey. Co. v. N. British Ry. Co., sup ; Beadell v. Eastern Counties Ry. Co., 2 C. B. (N.S.) 509 ; Painter v. L. B. & S. C. Ry. Co., ib. 702. 3 Caledonian Py. Co. v. N. British Ry. Co., sup. 4 See Belfast Central Ry. Co. v. O. N. Ry. Co. (Ir.~) t 4 Br. & M. 159. 6 G. W. Ry. Co. v. Severn and Wye Ry. Co., 5 Br. & M. 175. 6 3 N. & M. 113. THROUGH RATES. 75 passengers or goods to or from any port or town." l As to what constitutes " using, maintaining or working," see Belfast Central Ey. Co. v. O. W. By. Co., Jr. 2 26. Subject to the provisions in the last preceding Powers of section contained, the Commissioners shall have full power to decide that any proposed through rate is just to tlirou s h and reasonable, notwithstanding that a less amount may be allotted to any forwarding company out of such through rate than the maximum rate such company is entitled to charge, and to allow and apportion such through rate accordingly (a). (a) As to orders on two or more companies, see sect. 14. This is a re-enactment of the repealed sect. 12 of the Act of 1873. The method in which the traffic will bo worked enters as much into the reasonableness of a route as the physical fitness or unfitness of a line. And where a company worked over a part of the route under running powers, paying a portion of receipts to the owning company, it was held that the route proposed was not on the whole reasonable. 3 The words " through traffic " in an agreement by which one railway company undertakes to " maintain, manage, man, stock, work and use" the railway of another company, so as " properly to develope and accommodate " not merely the through traffic, but also the local traffic of the district to bo served by the railway, were held to mean such traffic an that for which the said railway provides the shortest and most convenient route. 4 In competency to apply, the smallest company stands on a 1 Caledonian Ry. Co. v. Greenock and Wemyss Day Ry. Co., 4 Br. & M. 139. 8 4 Br. & M. 379 ; Ayr Harbour Trustees v. Glasgow and S. W. Ry. Co., 4 Br. & M. 81. ' ,S-wi- I'.r. & M. 282. 86 It AIL WAT AND CANAL TRAFFIC ACT, 1888. competent person to communicate with the complainant and the railway company, and to receive and consider such explanations and communications as may be made in reference to the complaint ; and the Board of Trade may pay to such last-mentioned person such remunera- tion as they may think fit, and as may be approved by the Treasury (a). (4.) The Board of Trade shall from time to time submit to Parliament reports of the complaints made to them under the provisions of this section, and the results of the proceedings taken in relation to such complaints, together with such observations thereon as the Board of Trade shall think fit. Cf sec. 7 (5.) A. complaint under this section may be made to the Board of Trade by any of the authorities mentioned in section seven of this Act, in any case in which, in the opinion of any of such authorities, they or any traders or persons in their district are being charged unfair or unreasonable rates by a railway company ; and all the provisions of this section shall apply to a complaint so made as if the same had been made by a person entitled to make a complaint under this section. (a) Sect. 3 of the Act of 1854 gave the Court power (transferred to the Kailway Commissioners by sect. 6 of the Act of 1873) to direct and prosecute inquiries by various skilled persons, but these powers were not exercised so as to make corporations or persons parties to an application made by a trader against a railway company on the ground of undue preference as a preliminary to the hearing, unless the whole case not sufficiently before the Court. 1 Annual 32. (1.) The returns required of a railway company railway by un( ^ er section nine of the Bail ways Kegulation Act, companies to contain i Wi i son V- N . E. Py Co., 5 Br. & M. 9S. CLASSIFICATION TABLES. 87 1871 (a), shall include such statements as the Board of such Trade may from time to time prescribe, and the forms the Board * referred to in that section may from time to time be ^ altered by the Board of Trade in such manner as they require. think expedient for giving effect to this section, and the said section nine of the Eailways Kegulation Act, 1871, ^ f 35 _ Q V J*'T . C, T Oj shall apply accordingly. 3. 9. (2.) The Board of Trade may from time to time alter 3G & 37 . J Viet c. 76. the times fixed by the said Act (J), or by the Eailways Kegulation Act (Returns of Signal Arrangements, Work- ings, &c.), 1873 (c), for the forwarding of any of the returns required by the said Act or this Act. (a) These are returns of the capital, traffic, and working expenditure for the last preceding financial year. (6) If the company is an incorporated company, the return is to be made within fourteen days after the first ordinary half-yearly meeting of the company held in each year. If the company is not an incorporated company, or fails to hold half-yearly meetings, the return is to be made not later than the 31st day of March in each year. (c) Under sect. 4 of 36 & 37 Viet. c. 76, every railway company shall, on or before the 15th day of February in each year, make a return of all lines, crossings, concentration of signals, points, &c. Cf. also 3 & 4 Viet. c. 97, s. 3. 33. (1.) The book, tables, or other document in use Classifica- for the time being containing the general classification of to be open merchandise carried on the railway of any company, [* n in8pec shall, during all reasonable hours, be open to the inspec- Copioi to tion of any person without the payment of any fee at ' ig every station at which merchandise is received for con- p. 44. veyance, or where merchandise is received at some other ^^ 24> place than a station then at the station nearest such place, and the said book, tables, or other document as revised from time to time shall be kept on sale at the 88 RAILWAY AND CANAL TRAFFIC ACT, 1888. principal office of the company at a price not exceeding one shilling (a). (2.) Printed copies of the classification of merchandise traffic, and schedule of maximum tolls, rates, and charges of every railway company authorised, as provided by this Act, shall be kept for sale by the railway company at such places and at such reasonable price as the Board of Trade may by any general or special order prescribe. (3.) The company shall within one week after applica- tion in writing made to the secretary of any railway company by any person interested in the carriage of any merchandise which has been or is intended to be carried over the railway of such company, render an account to the person so applying in which the charge made or claimed by the company for the carriage of such mer- chandise shall be divided, and the charge for conveyance over the railway shall be distinguished from the terminal charges (if any), and from the dock charges (if any), and if any terminal charge or dock charge is included in such account the nature and detail of the terminal expenses or dock charges in respect of which it is made shall be specified (Z>). Pubiica- (4.) Every railway company shall publish at every rate-book s t a ^ on a * which merchandise is received for conveyance, notice. O r where merchandise is received at some other place than a station then at the station nearest to such place a notice in such form as may be from time to time pre- scribed by the Board of Trade, to the effect that such book, tables, and document touching the classification of merchandise and the rates as they are required by this section and section fourteen of the Kegulation of Eailways 36 & 37 Act, 1873, to keep at that station, are open to public s.'i4. C ' inspection, and that information as to any charge can be PUBLISHED BATES. 89 obtained by application to the secretary or other officer at the address stated in such notice (c). (5.) Where a railway company carries merchandise See sec 28. partly by land and partly by sea, all the books, tables, and documents, touching the rates of charge of the railway company, which are kept by the railway company Traffi at any port in the United Kingdom used by the vessels sea - which carry the sea traffic of the railway company, shall, besides containing all the rates charged for the sea-traffic, state what proportion of any through rate is appropriated to conveyance by sea, distinguishing such proportion from that which is appropriated to the conveyance by land on either side of the sea. (6.) Where a railway company intend to make any Alteration increase in the tolls, rates, or charges published in the \i^e<\ ' books required to be kept by the company for public in- tes - spection, under section fourteen of the Regulation of Railways Act, 1873, or this Act, they shall give by publication in such manner as the Board of Trade may prescribe at least fourteen days' notice of such intended increase, stating in such notice the date on which the altered rate or charge is to take effect : and no such increase in the published tolls, rates or charges of the railway company shall have effect unless and until the fourteen days notice required under this section has been given. (7.) Any company failing to comply with the provisions See sec. 49. of this section shall, for each offence, and in the case of 1>elialf . v fiir , . . nonrnin- a continuing offence for every day during which the offence continues, be liable, on summary conviction, to a penalty not exceeding five pounds. (a) Cf. sect. 14 of the Act of 1873, imposing upon railway companies the duty of publishing the rates. Where a 90 PAIL WAY AND CANAL TRAFFIC ACT, 1888. company refused to shew their rate books they were con- demned in costs of proceedings for taking which reasonable and probable cause existed. 1 The Commissioners could order an inspection of the rate- book, and it was immaterial with what object the inspection was sought. 3 (&) Of. sect. 17 of the Act of 1868. Under sect. 14 of the Act of 1873 the rate-book should shew all rates, local as well as through, but the latter need not be shewn at any other station than the one from which the through traffic is for- warded in the first instance. 3 It was held under the Act of 1873 (sect. 14) that a railway company must shew in their rate-books what terminal ser- vices they undertook to perform with regard to the particular traffic, and what charges they proposed to make in respect thereof, and that the section was not sufficiently complied with by setting out a list of various terminal services which they perform, and stating the total charge for the whole of these services. 4 (c) This sub-section supplies a deficiency in the section referred to of the Act of 1873. Therein no definition was given of "station" or "wharf," although the Commissioners held so described places to mean " a place from which a rate is charged," and that coal sidings were "stations" within the section. 8 The details under sect. 14 of the Act of 1873 must be such as to enable the person paying the rates, and the Commis- sioners, should application under sect. 15 of that Act be made to them, to say whether an expense charged in the rate, is an 1 Clonmel Traders Co v. Waterford and Limerick Ry. Co., 4 Br. & M. 92 ; where information withheld, rates ordered to be published : Cairns v. N. E. Ry. Co. 4 Br. & M. 221. 2 Perkins v. L. & N. W. Ry. Co., 1 N. & M. 327. 3 Oxlade v. N. E. Ry. Co., 3 N. & M. 35 ; Watkinson v. WrexJiam, M. & C. Q. Ry. Co. (No. 2), 3 N. & M. 446. 4 Coleman v. Or. E. Ry. Co., 4 Br. & M. 108 ; and see Berry v. L. C. & D. Ry. Co., 4 Br. & M. 310 ; Robertson v. M. & a. W. Ry. Co. (Ireland), 2 N. & M. 238. 5 Harlorne Ry. Co. v. L. & M. W. Ry. Co., 2 N. & M. 169 ; and see Jones v. N. E. Ry. Co., 2 N. & M. 208. BOARD OF TRADE RULES. 91 expense for which the railway company can properly charge, and whether the amount charged is a reasonable amount or not. 1 34. When traffic is received or delivered at any place Place of on any railway other than a station (a) within the mean- Jf rates in" ing of section fourteen of the Begulation of Railways Act, [raffifa^ 1873, the railway company on whose line such place is r lace8 , * other than shall keep at the station nearest such place a book or stations. books showing every rate for the time being charged for the carriage of traffic other than passengers (I) and their luggage, from such place to any place to which they book, including any rates charged under any special contract, and stating the distance from that place of every station, wharf, siding or place to which such rate is charged. Every such book shall, during all reasonable hours, be open to the inspection of any person without the payment of a fee (c). (a) Cf. sect. 33, n. (c). (6) As to publication of passengers' fares, see the Act of JL868 (31 & 32 Viet. c. 119, Pt. II., s. 15). (c) Cf. sect. 33 (1) and n. (a). 35. (1.) The Board of Trade may from time to time Power to make, rescind, and vary rules with respect to the following ^. ' rrmttprq poses of this part (a.) The form and manner in which classifications and of thi Act - schedules under this part of this Act are to be prepared and submitted to the Board of Trade and to Parliament, and the publication, adver- Cf. sec. 24. tisement, and settlement (by the Board of Trade) of such classifications and schedules, and of Provisional Orders (a) ; 1 Birchyrove St&l Co. v. M. Rii. Co., 5 Dr. & M. 22i>. 92 RAILWAY AND CANAL TRAFFIC ACT, 1888. (i.) All proceedings before the Board of Trade under this part of this Act ; (c.) The fees to be paid in respect of such proceedings ; and (d.) Any matter authorised by this Act to be pre- scribed. (2.) Any rules made by the Board of Trade in pur- suance of this section shall be laid before Parliament within three weeks after they are made, if Parliament be then sitting, and if Parliament be not then sitting, within three weeks after the beginning of the then next session of Parliament, and shall be judicially noticed, and shall have effect as if they were enacted by this Act. (a) For draft proposed rules as to classification, see Ap- pendix B. By these rules it is provided that, " as soon as may be after the passing of the Act," the revised classification of mer- chandize traffic and schedule of rates shall be submitted to the Board of Trade. Three printed copies must be trans- mitted, one of which must be sealed with the seal of the company, and signed by the secretary. There must be fully stated therein, amongst other things : (a.) The proposed rates and charges in respect of train loads and truck loads, and also fur small packages, parcels, and merchandise traffic conveyed in pas- senger trains. (6.) The nature and amounts of all terminal charges pro- posed to be authorised in respect of each class of traffic, and the circumstances under which such terminal charges are proposed to be made, (c.) As far as practicable, the existing maximum rates which the company are by statute authorised to charge for the goods mentioned in the classification. As far as practicable, the existing terminal charges in respect of the several classes of traffic, shewing in each case the authority for making the charge. CANALS. 93 With the proposed classification and schedule there must also be sent three printed copies of the following : (a.) A statement and map shewing the lines of railway to which the proposed classification and schedule are to apply, specifying with respect to each line whether it is owned, leased, or worked, or partly owned, leased, or worked by the company. (6.) A statement setting forth all the cases in which the company have been authorised to demand and re- ceive any special rates or charges in respect of any lines, stations, or works. (e.) A statement of the names of the several newspapers in which the company propose to advertise that the proposed classification and schedule have been sub- mitted. Kule 3 provides for cases in which the companies are to set out existing rates and charges, and to shew the authority in virtue of which they are made. Within one week from the said submission to the Board of Trade the proposed classifica- tion shall be advertised, and a form (No. 2) of advertisement is given which, amongst other things, shall invite objections to be made within a period of eight weeks from the date of the first advertisement. Kules (i)-l 5) are laid down for the guidance of objectors, who must (in a given form) specifically state the objection, and the grounds on which it is made. PART III. CANALS (a). 36. All the provisions of Part II. of this Act relating Part II. to to any railway company shall, so far as applicable, apply "anaTcom- to every canal company, and to every railway and canal i )anles - company ; and in Part II. of this Act, unless the context otherwise requires, the expression " railway company " shall include a canal company and railway and canal company, and the expression " railway " shall include a canal (I), and the expression "rate" shall include tolls 94 RAILWAY AND CANAL TRAFFIC ACT, 1888. and dues of every description chargeable for the use of any canal or by any canal company. (a) In the Railway and Canal Traffic Act, 1854, the word " Canal " includes " any navigation whereon tolls are levied by authority of Parliament, also the wharves and landing places of and belonging to such canal and navigation, and used for the purposes of public traffic." In the Act of 1873, the terra " Canal Company," includes any person being the lessee of, or working, or entitled to charge tolls for the use of any canal in the United Kingdom, constructed or carried on under the powers of any Act of Parliament. Cf. sect. 46. Originally, canal companies, like railway companies, were dealt with on the footing of being merely owners of the way, the means of transit and locomotion being supplied by persons using the canal way, for the use of which the companies were authorised to take tolls. It has been pointed out 1 how the railways have gradually undertaken the entire management of their lines, and in like manner canal companies were by various Acts of Parliament given the power of single management. But wiih restrictions. 8 & 9 Viet., c. 28, enacted that canal companies might vary their tolls or rates on the whole or portions of their canal, charg- ing such tolls, however, equally to all persons under like circumstances. In the same year, and in 1847, Acts were passed to enable canal companies to become carriers of goods upon their canals, 2 again providing for equality of charges. In their former Act, power was given 3 to contract with other canal companies to facilitate the conveyance of goods and merchandise. Canals were included in the provisions of the Act of 1854 and of 1873; but apparently it was thought that railways would absorb most of the attention of the tribunal created, as it was entitled the " Railway Commission." But canals are, equally with railway companies, bound to afford all 1 See Introd. & note (e) to section 24. 2 8 & 9 Viet. c. 42, and 10 & 11 Viet. c. 94. 3 Ib. sect. 7. THROUGH RATES. 95 reasonable facilities for receiving and forwarding traffic, and to treat all descriptions of traffic and all traders equally, and to give all facilities to through traffic. (b) Cf. sect. 46. 37. (1.) Section fifteen of the Regulation of Eailways Application Act, 1873, shall apply to the terminal charges of a canal vict. c. 48, company (a). to canals - ' (2.) The Kailway and Canal Traffic Act, 1854, as amended by the Regulation of Eailways Act, 1873, shall extend to any person whose consent is required to any variation of the rates, tolls, or dues charged for the use of any canal, or by any canal company, in like manner as if such person were a canal company, and the expres- sions " canal company " and " railway and canal com- pany " in the said Acts and this Act shall be construed accordingly to include such person (b). (3.) The provisions of the Kailway and Canal Traffic Act, 1854, and the Kegulation of Railways Act, 1873, with respect to rates, shall apply to tolls and dues of every description chargeable for the use of any canal or by any canal company (c). And nothing in any agree- ment, whether made before or after the passing of this Act, and whether confirmed by Act of Parliament or not (d), and nothing in this Act shall prevent the Com- missioners from making or enforcing an order for a Through through rate or toll which may in their opinion be r " required in the interest of the public (e). (4.) Any company allowing traffic to pass from a canal on to any other canal or any railway, or from a railway on to a canal, shall be deemed to be a forwarding company, and the allowing of traffic so to pass shall be deemed to be the forwarding of traffic within the meaning of the above-mentioned Acts (/), 96 SAIL WAY AND CANAL TRAFFIC ACT, 1888. (5.) The provisions of the Railway and Canal Traffic Act, 1854, and of the Regulation of Railways Act, 1873, and of this Act, with respect to through rates, shall extend to any canals which, in connexion with any river, or other waterway, form part of a continuous line of water communication, notwithstanding that tolls may not be leviable by authority of Parliament upon such river or other waterway. (a) Cf. sect. 33 (3) as to publication of charges, and see sect. 24, . p. 55, as to separating terminal from mileage charges. (6) Carrying on a canal is frequently done by private traders, and carriers, who are not canal companies, and it seems the Commissioners had jurisdiction only to deal with complaints having reference to the tolls for the use of the navigation. (c) Includes " bar " and " compensation " tolls. " Bar tolls " were a large and prohibitory toll imposed on barges entering a canal from an independent canal. Eailway com- panies working canals have imposed them in virtue of pro- visions contained in the original Canal Acts, although they were within the mischief and provision of the Acts of 1854 and 1873. (d) By sect. 16 of the Act of 1873, no railway or canal company, unless expressly authorised thereto by any Act, shall without the sanction of the Commissioners, enter into any agreement^ whereby any control over, or right to interfere in or concerning the traffic carried, or tolls levied on any part of a canal, is given to the railway company. (e) Cf. sects. 25 and 26, and nn. (/ ) Warwick & Birmingham Canal Co. v. Birmingham Canal Co. 1 ' Powers of 38. Where a railway company, or the directors or officers of a railway company, or any of them or any persons on their behalf, have the control over or the 1 3 N. & M. 113. CANAL TOLLS. 97 right to interfere in or concerning the traffic conveyed, and charges or the tolls, rates, or charges levied on the traffic of or for railway the conveyance of merchandise on a canal, or any part of co P an y a canal (a), and it is proved to the satisfaction of the officers Commissioners that the tolls, rates, or charges levied on control the the traffic of or for the conveyance of merchandise on the |^ c of a canal are such as are calculated to divert the traffic from the canal to the railway, to the detriment of the canal or persons sending traffic over the canal or other canals adjacent to it (1.) The Commissioners may, on the application of any person interested in the traffic of the canal, make an order requiring the tolls, rates, and charges levied on the traffic of or for the con- veyance of merchandise on the canal, to be altered and adjusted in such a manner that the same shall be reasonable as compared with the rates and charges for the conveyance of mer- chandise on the railway : (6) (2.) If within such time as may be prescribed by the ifor.ierof ... , ( 'c. minis- order of the Commissioners, the tolls, rates, and S j one r8 not charges levied on the traffic of or for the con- obeyed yeyance of merchandise on the canal are not altered and adjusted as required by such order, the Commissioners may themselves by an order make such alterations in and adjustment of the tolls, rates, and charges levied on the traffic of or for the conveyance of merchandise on the canal as they shall think just and reasonable, and the tolls, rates, and charges as altered and adjusted by the order of the Commissioners of. <. 24. shall be binding on the company or persons owning or having the control over the traffic of, H 98 KAIL WAT AND CANAL TRAFFIC ACT, 1888. or the tolls, rates, and charges levied on the traffic of, or for the conveyance of merchandise on the canal : (3.) No application shall be made to the Commissioners under this section until the Board of Trade have certified that the applicant is a fit person to make the application, and that the applica- tion is a proper one to be submitted for the adjudication of the Commissioners ; and no order shall be made by the Commissioners under this Cf. s. 7 CO- section unless notice of the application has been served upon such company and persons, and in such manner as the Board of Trade may direct : (4.) The Commissioners may at any time, upon the application of any company or person affected Cf. sec. is. by any order made under this section, and after notice to and hearing such companies and persons as the Commissioners may by any general rules or special order prescribe, rescind or vary any order made under this section. (a) A railway company was held to " have the manage- ment " of a canal within sect. 17 of the Act of 1873, where they collected the tolls, repaired the weirs, &c., and paid the rents due by the proprietor of the navigation. 1 (6) Upon a reference under 37 & 38 Viet. c. 40, s. 6, the Eailway Commissioners reduced the tolls charged by a railway company upon a canal.' 2 Returns by 39. (1.) Every canal company shall, on or before the panics to!"" ^ rst ^ a y ^ J anuar y i Q e very year, beginning on the first be made on or before j jp ^. v Q w R Q 3 N. & M. 14. 1st Jan. in each vear. 2 Wilts, Somerset, and Berks Canal Traders Association v. 0. W. By. Co., 3 N. & M. 20. STOPPING OF CANAL. 99 day of January next after the passing of this Act, send to the registrar of joint stock companies a return stating the name of the company, a short description of their canal, the name of their principal officer, and the place of their office, or, if they have more than one office, of their principal office. (2.) Every canal company shall within such time as may be prescribed by the Board of Trade, and afterwards from time to time whenever required by the Board of Trade, not being oftener than once in every year, forward to the Board of Trade in such form and manner as the Board may from time to time prescribe, such returns as the Board of Trade may require for the purpose of showing the capacity of such canal for traffic, and the capital, revenue, expenditure, and profits of the canal company. (3.) When the canal of a canal company, or any part Where thereof, is intended to be stopped for more than two days, pan y in- the company shall report to the Board of Trade, stating ^ the time during which such stoppage is intended to last, for morc than two and when the same is re-opened the company shall so days. report to the Board of Trade. (4.) A company failing to comply with this section, Cf. sec. 49. shall be liable on summary conviction, to a fine not exceeding five pounds for every day during which their default continues, and any director, manager, and officer of the company who knowingly and wilfully authorises or permits the default shall be liable, on summary conviction, to the like fine. 40. (1.) Every canal company shall, before such date Bve-Uw* as the Board of Trade may prescribe, forward to the Board of Trade true copies, 'certified in such manner as the Board of Trade direct, of any bye-laws or regula- H 2 100 RAILWAY AND CANAL TRAFFIC ACT, 1888. tions of such company which are in force at the com- mencement of this Act ; and the bye-laws of any canal company, copies of which are not forwarded to the Board of Trade as provided by this section, shall from and after the said date cease to have any operation, save in so far as any penalty may have been already incurred under the same. (^') ^ bye-law or regulation of any canal company approre. hereafter to be made under any power which has before or at the time of the passing of this Act been, or which may hereafter be, conferred on any canal company, shall not have any force or effect until two months after a true copy of such bye-law or regulation, certified in such manner as the Board of Trade direct, has been forwarded to the Board of Trade, unless the Board of Trade before the expiration of such period have signified their appro- bation thereof. (3.) The Board of Trade may, at any time after any existing or future bye-laws or regulations of a canal company have been forwarded to them, notify to the company their disallowance thereof, or of any of them, and in case such bye-laws or regulations are in force at the time of the disallowance, the time at which the said bye- laws or regulations shall cease to be in force. A bye- law or regulation disallowed by the Board of Trade shall not after such disallowance have any force or effect whatever, save (as regards any bye-law or regulation which may be in force at the time of the disallowance thereof) in so far as any penalty may have been then already incurred under the same. (4.) The Board of Trade may from time to time make, rescind, and vary such regulations as they think fit with respect to the publication by canal companies of their INSPECTION OF CANALS. 101 bye-laws and regulations, and with respect to the pub- lication by canal companies of their intention to apply to the Board of Trade for the allowance of any intended bye-laws and regulations. Any regulations so made which are for the time being in force shall have effect as if they had been enacted in this Act. 41. Whenever the Board of Trade are, through their inspection officers or otherwise, informed that the works of any canal are in such a condition as to be dangerous to the public, or to cause serious inconvenience or hindrance to traffic, the Board of Trade may direct such officer or other person as they appoint for the purpose to inspect the said canal and report thereon to the Board of Trade, and for the purpose of making any inspection under this section the officer or person appointed for the purpose shall, in relation to the canal or works to be inspected, have all the powers of an inspector appointed under the Regulation of Railways Act, 1871 (a). 34 & 35 Viet. c. 78. (a) 34 & 35 Viet. c. 78, s. 4, defines the powers of an inspector appointed by the Board of Trade under that Act. Ho may enter premises, inspect all stock, plant, machinery, &c., sum- mon before him and examine employes, and require production of books and documents. 42. (1.) No railway company, or director, or officer MisappH- of a railway company shall, without express statutory authority, apply or use or authorise or permit the appli- cation or use of any part of the company's funds for the acquisition ... ,. ., ofunnutho- purpose of acquiring either in the name of the railway ried company, or of any director or officer of the railway ^* company, or other person, any canal interest, or of enabling any director or officer of the railway company, or other person, to purchase or acquire any canal interest, or of guaranteeing or repaying to any director or officer 102 RAILWAY AND CANAL TRAFFIC ACT, 1888. of the railway company or other person who has pur- chased or acquired any canal interest the sums of money expended or liability incurred by such director, officer, or person, in the purchase or acquisition of such canal interest, or any part of such money or liability (a). (2.) In the event of any contravention of the pro- visions of this section, the canal interest purchased in such contravention shall be forfeited to the Crown, and the directors or officers of the company who so applied or used, or authorised or permitted such application or use of the company's funds, shall be liable to repay to the company the sums so applied or used and the value of the canal interest so forfeited ; and proceedings to compel such repayment may be taken by any shareholder in the company. (3.) In this section the expression " company's funds " means the corporate funds of any railway company, and includes any funds which are under the control of or administered by a railway company ; the expression " officer " includes any person having any control over a company's funds or any part thereof; and the expression " canal interest " means shares in the capital of a canal company, and includes any interest of any kind in a canal company or canal. (a) 21 & 22 Viet. c. 75, s. 3, enacted that canal companies being also railway companies, shall not take leases of canals unless specially authorised. This section seems to be aimed at cases where railway companies have acquired a going canal, and then extinguished its competition with themselves. And Cf. sect. 17 of the Act of 1873, and Gen. Ord. 11. Canal com- 43, (1.) Any canal company may make and enter panics may j n ^ o con tracts and arrangements with any other canal through company or canal companies for the passage over and tolls, &c. THROUGH TOLLS. 103 along their respective canals, or any of them, of boats, barges, vessels, and other through traffic, and for the use, by such traffic, of the wharves, landing places, and other works of any such canal, upon payment of such through tolls, rates, and charges, and subject to such conditions and restrictions as may be agreed upon between such companies ; and for the collection and recovery by any one of the companies on behalf of themselves and the other companies interested of the tolls, rates, and charges payable in respect of such through traffic ; and for the division and apportionment of the tolls, rates, and charges; and any such contract may contain provisions for the erection and maintenance of or otherwise for providing warehouses, offices, and other buildings and conveniences, and any other provisions for the purpose of carrying into effect any such arrangement, and any company may apply their funds or moneys for the same purpose (a). (2.) Notwithstanding any enactments providing for the charge of equal tolls, rates, and charges, such through tolls, rates, and charges as above-mentioned may respec- tively be computed at a lower toll or rate per mile than the tolls, rates, or charges charged for the passage over and along the same canals of like traffic, not being through traffic, without necessitating or occasioning any reduction of the last-mentioned tolls, rates, or charges. (3.) Any like contracts and arrangements existing at the passing of this Act shall be, arid from the respective dates of the making thereof shall be deemed to have been, as valid as if the same had been made after the commencement of this Act. (a) Cf. sect. 87 K. C. C. Act, 1845, auto similar {towers in railway companies. Canal com- panies may establish clearing system. Railway Clearing Act. 13 & 14 Viet. c. xxxiii., ss. 11-20 to apply. Abandon- ment of " UnneceS' sary " canal. Of " Derelict canal. 104 KAIL WAT AND CANAL TRAFFIC ACT, 1888. 44, For the purpose of facilitating through traffic upon canals, any canal companies upon whose canals through tolls, rates, or charges may be in operation, may establish a canal clearing system, on such principles, in such manner, and subject to such regulations as to the admission of other companies to such system, the retire- ment of members, the appointment of a committee to conduct the business of the system, and of a secretary or other necessary officers, the mode of conducting business, and such other regulations for carrying into effect such system as may from time to time be approved by the Board of Trade in writing under the' hand of the secre- tary or one of the assistant-secretaries of that board ; and any company may apply any funds or money belonging to them for the purpose of establishing or carrying into effect any such system, and the provisions of sections eleven to twenty-six inclusive of the Railway Clearing Act, 1850, shall, mutatis mutandis, apply to any canal clearing system when so established. 45. (1.) Where, on the application of a canal com- pany, it appears to the Board of Trade that any canal or part of a canal belonging to the applicants (herein- after referred to as an uanecessary canal) is at the time of making the application unnecessary for the purposes t of public navigation, or where, on the application of any local authority, or of three or more owners of lands adjoin- ing or near to any canal or part of a canal, it appears to the Board of Trade that that canal or part of a canal (hereinafter referred to as a derelict canal) has for at least three years previously to the making of the appli- cation been disused for navigation, or, by reason of the default of the proprietors thereof, has become unfit for navigation, or that the lands adjoining or near thereto WASH ANT OF ABANDONMENT. 105 have suffered injury by water that has escaped from the derelict canal, and that the proprietors of the derelict canal decline or are unable to effect the repairs necessary to prevent further injury, the Board of Trade may by warrant signed by their secretary authorise the abandon- Warrant of ment by the existing proprietors of such unnecessary me'nt. 01 canal or such derelict canal, and after the granting of the warrant, and the due publication as required by the Board of Trade of a notice of the granting thereof, the Cf. sect. Board of Trade may make an order releasing the canal company or other the proprietors of the unnecessary or T aj e may derelict canal from all liability to maintain the same release * canal com- canal, and from all statutory and other obligations in pny from , , . liability to respect thereof, or of or consequent on the abandonment repair, thereof (a). (2.) In the case of an unnecessary canal no warrant of Warrant of abandonment shall be granted unless the Board of Trade me n t O f are satisfied- (a.) That it is unnecessary for the purposes of public navigation ; (&.) That the application has been expressly authorised by a resolution of a majority of the shareholders of the canal company owning the canal present and voting at an extraordinary or special general meeting of that company ; (c.) That such public and other notices of the applica- tion have been given as the Board of Trade may require ; (d.) That compensation (the amount thereof to be determined in case of difference as the Board of Trade may prescribe) has been made to all persons entitled to compensation by reason of the proposed abandonment of the canal. 106 HAIL WAY AND CANAL TRAFFIC ACT, 1888. Warrant (3.) In the case of a derelict canal the warrant may 6 granted on the condition that the canal or any part " derelict " thereof with all or any of the powers relating thereto, be transferred to any person, body of persons, or local authority, and where any such condition is imposed the Board of Trade may, if they think fit, frame and embody in a Provisional Order a scheme for the management of the canal or any part thereof (6). (a) Cf. the Railway Abandonment Acts, and extension thereof. 1 Under these Acts it was held that a creditor of a company whose works have been abandoned by warrant of the Board of Trade cannot petition for an order to wind up the company. 2 (&) The intendment of this sub-section is apparently to provide for cases in which the canal has been so long disused as to become dangerous. Sub-sect. (2) (a) sufficiently guards against premature abandonment. (4.) The Provisional Order may provide for the con- stitution of a body to manage the canal or any part thereof, for the transfer to that body or any local autho- rity of the canal or any part thereof, and of all or any of the powers relating thereto, for the limitation or dis- charge of any liabilities affecting the canal or the owners thereof for the time being, and for any other matters which may appear to the Board of Trade to be necessary or proper for carrying this section into effect. Order of (5.) The Board of Trade may submit to Parliament T^de to f be f r confirmation any Provisional Order made by it in confirmed _ ___ by Parlia- ment i ^ & 14 Viet. c. 83 ; 30 & 31 Viet. c. 127, ss. 31-35 ; 32 & 33 Viet. c. 114. 2 In re North Kent Ry. Extension Co., L. R. 8 Eq. 356. And see as to warrant of abandonment under these Acts, In re Kensington Station Act, L. R. 20 Eq. 197. DEFINITION OF CANAL. 107 pursuance of this section, but any such order shall be of no force unless and until it is confirmed by Act of Parliament. (6.) If while the Bill confirming any such order is pending in either House of Parliament, a petition is presented against any order comprised therein, the Bill, so far as it relates to the order, may be referred to a select committee, and the petitioner shall be allowed to appear and oppose as in the case of private Bills. (7.) In this section the expression " local authority " means any one of the local authorities mentioned in section seven of this Act. (8.) For the purpose of giving effect to the provisions of this section, the Board of Trade may require the applicants to furnish any evidence in their possession or under their control relative to the application, and may at the expense of the applicants appoint and send an officer to inspect the canal referred to in the application, and to obtain information and evidence in the neighbour- hood thereof relative to the proposed abandonment, and may from time to time make regulations as to the mode of making applications, and the nature and mode of publication of notices, and generally as to the conduct of proceedings. 46. In this part of this Act the expression "canal Definition company " shall include a " railway and canal company," " so far as relating to any canal of any such last-mentioned company (a). (a) Cf. sect. 23. 108 RAILWAY AND CANAL TRAFFIC ACT, 1888. PART IV. MISCELLANEOUS. Perpetua- 47. So much of the Regulation of Railways Act, 1873, 36 & 37 as limits the time during which that Act shall continue ict. c. 4 . J Q f orce shall, save so far as it relates to the appointment of the Commission, be repealed, and the said Act, save as aforesaid, shall be perpetual (a). (a) Cf. sect. 2 and n. Evi lence 48. On any rating appeal, and before any court, where it ma y De material to show the receipts or profits of a railway company or canal company, or railway and canal company, it shall be lawful for the company to prove the same by written statements or returns verified by the affidavit or statutory declaration of the manager or other responsible officer, and any such statements or returns shall be prima facie evidence of the facts therein stated with respect to such receipts or profits : Trovided that the person by whom any such affidavit or statutory de- claration is made shall in every case, if required, attend to be cross-examined thereon (a). (a) Under the powers given in sect. 9 of the Act of 1873, many rating cases came before the Commissioners. 1 Where a railway passes through several parishes, the poor- rate to be imposed in respect of it in any one parish, ought, under 43 Eliz. c. 2, and 6 & 7 Will. 4, c. 96, to be calculated on the parochial principle, that is, on the gross profits earned by so much of the railway as lies within the parish, deduct- ing therefrom the expense incurred in respect of that portion of the railway, and a deduction ought to be allowed also in 1 Guardians of the Poor of the Caistor Union v. M. S. & L. Ey. Co., 2 N. & M. 53; L. & N. W. Ry. Co. v. Wigan Union, 2b. 240. As to canal rating: Regent's Canal v. St. Pancras Union, 3 Q. B. L). 73. BATING APPEALS. 109 respect of the average annual depreciation of the permanent way. 1 The recent decisions on the rating of railways may be use- fully noticed. In The Assessment Committee of the Altrincham Union v. The Cheshire Lines Committee* the facts were as follows : the special Act v\hich authorized the making of a rail- way by the C. company provided that the L. company should have the right to run their traffic over a part of the line, on payment of a fixed annual rent to the C. company. The rent was much less than the actual value of the traffic passed over that part of the line by the L. company : Held, that the C. company could not be rated for poor-rate in respect of that traffic at a higher sum than the fixed rent. In the second case, a railway company constructed a line which formed a connecting link between the lines of three other companies, and for some time retained possession of such line taking tolls for the use of it by such other com- panies. Subsequently the three other companies, under the provisions of an agreement in that behalf, and of an Act of Parliament confirming the agreement, became lessees of the line : Held, that, having regard to the provisions of the agreement, and of the Act confirming it, the rateable value of the line for the purposes of the poor-rate was not to be ascertained as if it were an integral portion of the lines of the three companies using it, but was to be based upon the rent which a tenant from year to year might reasonably be ex- pected to give for it as an independent line. 3 When the question before the Court is as to the rating of a railway, the Court must apply the statutory rule in that as in other cases, and see whether the mode of valuation adopted is in conformity with the Act or not. Where the case is that 1 R. v. L. B. & 8. C. Ry. Co., 15 Q. B. 313; as to the rating of branch lines, see Newmarket Ry. Co. v. Cambridge Churchvoardent, 3 K. & B. 94 ; JR. v. O. W. Ry. Co., 15 Q. B. 1085; as to coutributive value of railway mileage, O. E. Ry. Co. v. Overseers of Ifaughby, L. R. 1 Q. B. 666. 1 1SQ. B. D. 397. Tlie Ntn-th and South Western Junction Ry. Co. v. The Attestment Committee of the Brentford Union, 18 Q. B. 1). 740. 110 RAILWAY AND CANAL TRAFFIC ACT, 1888. of one railway, that is, where a line is used throughout as one railway by one company, and owned by such company from terminus to terminus, or, if a portion of the line is leased, only such company, and nobody else, is entitled to lease it, in such a case the Courts have said that it is not an incorrect mode of getting at the rateable value of part of the line in a parish to take the gross receipts of the line in the parish by allocating to it a proportion of the receipts in respect of traffic passing through the parish in accordance with the mileage run in the parish, and to deduct therefrom the ex- penses necessary to produce those receipts and the proper statutory allowances." 1 Recovery 49. Every penalty recoverable on summary conviction cation'of" under this Act may be prosecuted and recovered in the penalties. manner directed by the Summary Jurisdiction Acts (a) before a court of summary jurisdiction. (a) 11 & 12 Viet. c. 43 and 42 & 43 Viet. c. 49. Parties 50. In any proceedings under this Act any party may ^person** appear before the Commissioners either by himself in or b y . person or by counsel or solicitor. counsel, &c. r Pariiamen- 51. Any person who shall be certified by the Chair- ta '7 a s e " ts man of Committees of the House of Lords or the Speaker entitled to * practise of the House of Commons to have practised for two years before Commis- before the passing of this Act in promoting or opposing ers ' Bills in Parliament shall be entitled to practise in any proceedings under this Act as an attorney or agent before the Commissioners : Provided that every such person so practising as aforesaid shall, in respect of such practice and everything relating thereto, be subject to the jurisdiction and orders of the Commissioners, and further provided that no such person shall practise as aforesaid until his name shall have been entered in a roll Per Esher, M.R., 18 Q. B. D. 754. JURISDICTION OF COMMISSIONERS. Ill to be made and kept, and which is hereby authorised to be made and kept, by the Commissioners. 52. The powers and jurisdiction conferred by this Act Saving of on the Commissioners or Board of Trade shall be in addition to and not in substitution for any powers and on . . om ~ r missionera jurisdiction vested in the Commissioners or Board of nd Board of Trade. Irade by any statute. Cf. sec. 8. 53. (1.) All documents purporting to be rules, orders, p r ocei- or certificates made or issued by the Board of Trade, and ^ 8 r j of to be sealed with the seal of the board, or to be signed Trade - by a secretary or assistant-secretary of the board, or any person authorised in that behalf by the President of the Board, shall be received in evidence, and deemed to be such orders, rules, or certificates without further proof, unless the contrary is shown. (2.) A certificate signed by the President of the Board of Trade that any order made, certificate issued, or act done, is the order, certificate, or act of the Board of Trade, shall be conclusive evidence of the fact so certified. 54. (1.) Where any local authority (a) having power Expenses under this Act to make or oppose any complaint to the authorities. Commissioners, or the Board of Trade, or to enter into cf -- 45 0> any agreement to pay the whole or a portion of the expenses of complying with an order of the Commis- sioners or the Board of Trade, or to make any application for the abandonment or acquisition of a canal under this Act, incur any expenses in or incidental to such complaint, opposition, agreement, or application, such expenses may be defrayed out of the rates or funds out of which the expenses occurred by such authority in the execution of their ordinary duties are defrayed, and if such authority is a rural sanitary authority in England, shall be de- frayed as general expenses, unless the Local Govern- 112 HAIL WAT AND CANAL TRAFFIC ACT, 1888. ment Board direct that they shall be defrayed as special expenses. (2.) A local authority may enter into any contract in- volving the payment by themselves and their successors of any expenses authorised by this section to be defrayed. (3.) Where any such local authority have no power to borrow money for the purpose of defraying any expenses authorised by this section, such authority, if other than a surveyor of highways, may, with the consent of the Board of Trade in the case of any harbour board or conservancy authority, and with the consent of the Local Government Board in the case of any other authority, borrow money 38 & 39 in manner provided by the Local Loans Act, 1875, on ' the security of the rates or funds out of which the expenses are authorised to be defrayed, and the prescribed period for the loan shall be such period as the board giving such consent may approve. (4.) On the request of any board whose consent is required for such loan, the Board of Trade or Commis- sioners shall certify such particulars respecting the amount of the said expenses and the propriety of in- curring the same and of borrowing for the payment thereof as may be requested by such board. (5.) In Ireland, any authority borrowing in pursuance of this section may borrow in manner provided by the 41 & 42 Public Health (Ireland) Act, 1878, in like manner as if ict. c. 52. ^ e p rov j s j ons o f that Act with respect to borrowing were re-enacted in this, section, and in terms made applicable thereto. (a) Cf. section 7 and n. Definitions. *>> In this Act, unless the context otherwise re- quires, DEFINITIONS. 113 Terms defined by the Regulation of Railways Act, 1873, have the meanings thereby assigned to them : The term " conservancy authority " means any persons Conser- who are otherwise than for private profit intrusted authority. with the duty or invested with the power of con- serving, maintaining, or improving the navigation of any tidal or inland water or navigation : The term " harbour board " means any persons who are Harbour otherwise than for private profit intrusted with the duty or invested with the power of constructing, improving, managing, regulating, and maintaining a harbour, whether natural or artificial, or any dock : The term " Lord Chancellor " means the Lord High Lord Chancellor of Great Britain : The term " undue preference " includes an undue pre- Undue ference, or an undue or unreasonable prejudice or disadvantage, in any respect, in favour of or against any person or particular class of persons or any particular description of traffic : The term " terminal charges " includes charges in Terminal . , , A charges. respect of stations, sidings, wharves, depots, ware- houses, cranes, and other similar matters, and of any services rendered thereat : The term " merchandise " includes goods, cattle, live Merchan- dise. stock, and animals of all descriptions : The term " trader " includes any person sending, re- Trader. ceiving, or desiring to send merchandise by railway or canal : The term " home," in relation to merchandise, includes "Home." the United Kingdom, the Channel Islands, and the Isle of Man : The term " rating appeal " means an appeal against Ratine 114 KAIL WAT AND CANAL TRAFFIC ACT, 1888. any valuation list or against any poor rate or any other local rate : The term " Summary Jurisdiction Acts " in Scotland 27 & 28 means the Summary Procedure Act, 1864, the 44 C &45 53 Summary Jurisdiction (Process) Act, 1881, and any Viet. c. 24. Act or Acts amending the same ; and in Ireland, within the police district of Dublin metropolis, the Acts regulating the powers and duties of justices of the peace for such district, or of the police of such 14 & 15 district, and elsewhere, the Petty Sessions (Ireland) Act, 1851, and any Act amending the same : The term " superior Court " means, as regards England, the High Court of Justice, as regards Scotland, the Court of Session, and as regards Ireland, the High Court of Justice : The term " superior court of appeal " means, as regards England, Her Majesty's Court of Appeal ; as regards Scotland, the Court of Session in either division of the Inner House ; and as regards Ireland, Her Majesty's Court of Appeal : The term " rules of Court " means, as regards Scotland, acts of sederunt. In the application of this Act to Ireland, the expres- sion " council of a borough," includes town or township commissioners, and any reference to justices in quarter sessions shall be construed to refer to a grand jury ; and any reference to the Local Government Board or to an urban or rural sanitary authority, shall be construed to refer to the Local Government Board for Ireland, and to an urban or rural sanitary authority in Ireland. Commence- 56. This Act shall come into operation on the first day ment of ^ January one thousand eight hundred and eighty-nine, which day is in this Act referred to as the commence- PENDING BUSINESS. 115 ment of this Act : Provided that at any time after the passing of this Act any appointment and rules may be made, and other things done for the purpose of bringing this Act into operation at such commencement. 57. Subject to general rules to be made under this Act, Pending all proceedings which, at the commencement of this Act, busine8s - under the Eegulation of Eailways Act, 1873, and Acts 36 & 37 amending it, or under any other Acts, are pending before the Kail way Commissioners, shall be transferred to the Railway and Canal Commission under this Act, and may thereupon be continued and concluded in all respects as if such proceedings had been originally instituted before that Commission. 58. Every action or proceeding which might have been Transfer of brought before the Eailway Commissioners if this Act businew had been in force at the time when such action or pro- from . superior ceeding was begun, and is at the commencement of this Courts. Act pending before any superior Court, may, upon the application of either party, be transferred by any judge of such superior Court to the Railway and Canal Commis- sioners under this Act, and may thereupon be continued and concluded in all respects as if such action or pro- ceeding had been originally instituted before that Com- mission : Provided that no such transfer, nor anything herein contained, shall vary or affect the rights or liabilities of any party to such action or proceeding. 59. (1.) The enactments mentioned in the schedule Repeal, to this Act are hereby repealed to the extent therein specified. (2.) The repeal effected by this Act shall not affect (a.) Anything done or suffered before the commence- ment of this Act under any enactment repealed by this Act, or the expiration of any office which I 2 116 RAILWAY AND CANAL TRAFFIC ACT, 1888. would otherwise have expired by virtue of any enactment repealed by this Act ; nor (&.) Any right or privilege acquired, or duty imposed, or liability or disqualification incurred, under any enactment so repealed ; nor (c.) Any fine, forfeiture, or other punishment incurred or to be incurred in respect of any offence com- mitted or to be committed against any enact- ment so repealed ; nor (d.) The institution or continuance of any proceeding or other remedy, whether under any enactment so repealed, or otherwise, for ascertaining or enforcing any such liability or disqualification, or enforcing or recovering any such fine, forfeiture, or punishment as aforesaid. ( 1" ) SCHEDULE. ACTS REPEALED. Note. A description or citation in this schedule of a portion of an Section 59. Act is inclusive of the words, section, or other part first and last men- tioned, or otherwise referred to as forming the beginning or as forming the end of the portion described in the description or citation. Session and Chapter of Act. 17 & 18 Viet. c. 31 31 & 32 Viet. c. 119 36 & 37 Viet. c. 48 37 & 38 Viet. c. 40 Short Title. The Eailway and Canal Traffic Act, 1854 The Regulation of Railways Act, 1868 The Regulation of Railways Act, 1873 The Board of Trade Arbitra- tions, &c. Act, 1874 Extent of Repeal. Section four and section five. Section sixteen, paragraph two, from " The provisions of " to the end of the sec- tion. Section three, from "The term ' superior Court '" to the end of the section, sec- tion four, section eleven, section twelve, section thirteen, section twenty- one, section twenty-two, section twenty-three, sec- tion twenty-four, section twenty - five, section twenty - six from the words " The ComtniH- sioners may review " to the end of the section, section twenty - eight, section twenty-nine, section thirty- four, and section thirty- seven. Section eight, from "and shall continue in force" to " expiration." 118 EAILWAT AND CANAL TRAFFIC ACT, 1888. APPENDIX A. EAILWAY CLAUSES CONSOLIDATION ACT, 1845. * # * # (8 VICT. c. 20.) * Company empowered to contract with other companies. Contracts not to affect persons not parties thereto. Company not to be liable to u greater extent than common carriers. 87. It shall be lawful for the company from time to time to enter into any contract with any other company, being the owners or lessees or in possession of any other railway, for the passage over or along the railway by the special Act authorised to be made of any engines, coaches, waggons, or other carriages of any other company, or which shall pass over any other line of railway, or for the passage over any other line of railway of any engines, coaches, waggons, or other carriages of the company, or which shall pass over their line of railway, upon the payment of such tolls and under such conditions and restrictions as may be mutually agreed upon ; and for the purpose aforesaid it shall be lawful for the respective parties to enter into any contract for the division or apportionment of the tolls to be taken upon their respective railways. 88. Provided always, that no such contract as aforesaid shall in any manner alter, affect, increase or diminish any of the tolls which the respective companies, parties to such contracts, shall for the time being be respectively authorised and entitled to demand or receive from any person or any other company, but that all other persons and companies, shall, notwithstanding any such contract, be entitled to the use and benefit of any of the said railways, upon the same terms and conditions, and on payment of the same tolls, as they would have been in case no such contract had been entered into. 89. Nothing in this or the special Act contained shall extend to charge or make liable the company further or in any other case than where, according to the laws of the realm, stage coach proprietors and common earners would be liable, RAILWAY TRAFFIC ACT, 1854, SEC. 2. 119 nor shall extend in any degree to deprive the company of any protection or privilege which common carriers or stage coach proprietors may be entitled to; but, on the contrary, the company shall at all times be entitled to the benefit of every such protection and privilege. 90. And whereas it is expedient that the company should Power to be enabled to vary the tolls upon the railway so as to accom- var ^ t0 ^ modate them to the circumstances of the traffic, but that such power of varying should not be used for the purpose of pre- judicing or favouring particular parties, or for the purpose of collusively and unfairly creating a monopoly, either in the hands of the company or of particular parties ; it shall be lawful, therefore, for the company, subject to the provisions and limitations herein and in the special Act contained, from time to time to alter or vary the tolls by the special Act authorised to be taken, either upon the whole or upon any particular portions of the railway, as they shall thiuk fit ; provided that all such tolls be at all times charged equally to all persons, and after the same rate, whether per ton per Tolls to be mile or otherwise, in respect of all passengers, and of all goods or carriages of the same description, and conveyed or under the propelled by a like carriage or engine, passing only over the circum - same portion of the line of railway under the same circum- stances ; and no reduction or advance in any such tolls shall be made either directly or indirectly in favour of or against any particular company or person travelling upon or u^ing the railway. RAILWAY AND CANAL TRAFFIC ACT, 1854. (17 & 18 VICT. c. 31.) An Act for the better Regulation of the Traffic on Railways and Canals. [10th July 1854.] ***** 2. Every railway company, canal company, and railway Dutj of and canal company, shall, according to their respective ^^ iet powers, afford all reasonable facilities for the receiving and to make forwarding and delivering of traffic upon and from the * rr *JfjL several railways and canals belonging to or worked by such receiving companies respectively, and for the return of carriages, at 120 RAILWAY AND CANAL TRAFFIC ACT, 1888. tmffic, trucks, boats, and other vehicles, and no such company (shall without make or give any undue or unreasonable preference or unreason- , . ,, . , able delay, advantage to or in favour of any particular person or com- and with- pany, or any particular description of traffic, in any respect whatsoever, nor shall any such company subject any par- ticular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever ; and every railway company and canal company and railway and canal company having or working railways or canals which form part of a continuous line of railway or canal or railway and canal communication, or which have the terminus, station, or wharf of the one near the terminus, station, or wharf of the other, shall afford all due and rensonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals by the other, without any unreasonable delay, and without any such preference or advantage, or prejudice or disadvantage, as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways or canals or railways and canals as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the several companies be at all times afforded to the public in that behalf. EEGULATION OF EAILWAYS ACT, 1868. (31 & 32 VICT. c. 119.) ***** Provision 16. "Where a company is authorised to build, or buy, or forsecuring hire, and to use, maintain and work, or to enter into arrange- treTtment^ ments for using, maintaining, or working, steam vessels for where the purpose of carrying on a communication between any railway towns or ports, and to the tolls in respect of such steam company - 1 works " vessels, tn* n and in eveiy such case tolls shall be at all times steam charged to all persons equally and after the same rate in respect of passengers conveyed in a like vessel passing between the same places under like circumstances ; and no reduction or advance in the tolls shall be made in favour of or against any person using the steam vessels in consequence of his having travelled or being about to travel on the whole or any REGULATION OF RAILWAYS ACT, 1873. 121 part of the company's railway, or not having travelled or not being about to travel on any part thereof, or in favour of or agaiust any person using the railway in consequence of his having used or being about to use, or his not having used or not being about to use, the steam vessels; and where an aggregate sum is charged by the company for conveyance of a passenger by a steam vessel and on the railway, the ticket shall have the amount of toll charged for conveyance by the steam vessel disinguished from the amount charged for con- veyance on the railway. The provisions of the Railway and Canal Traffic Act, 1854, so far as the same are applicable, shall extend to the steam vessels and to the traffic carried on thereby. 1 (37 & 38 Viet. c. 48.) 2 An Act to make better provision for carrying into effect the Railway and Canal Traffic Act, 1854, and for other purposes con- nected therewith. [21st July, 1873.] Appointment and Duties of Railway Commissioners. 4. For the purpose of carrying into effect the provisions of Appoint- the Railway and Canal Traffic Act, 1854, and of this Act, it shall ^"/J^ be lawful for Her Majesty, at any time after the passing of this Commis- Act, by warrant under the Royal Sign Manual, to appoint not s " more than three Commissioners, of whom one shall be of experience in the law and one of experience in railway business, and not more than two assistant Commissioners, and upon the occurrence of any vacancy in the office of any such Commissioner or Assistant Com- missioner from time to time in like manner to appoint some fit person to fill the vacancy. It shall be lawful for the Lord Chancellor, if he think fit, to remove for inability or misbehaviour any Commissioner appointed in pursuance of this Act. The three Commissioners appointed under this Act (and in this Act referred to as the Commissioners) shall be styled the Railway Commissioners, and shall have an official seal which shall be 1 The words printed in italics arc repealed by the present Act. 2 The sections printed in italics nrc repealed. 122 RAILWAY AND CANAL TRAFFIC ACT, 1888. judicially noticed. They may act notwithstanding any vacancy in their number. The said Assistant Commissioners shall hold office during the pleasure of Her Majesty. Commis- 5. Any person appointed a Commissioner under this Act tobe7n 0t shall within three calendar months after his appointment terested in absolutely sell and dispose of any stock, share, debenture railway or s t O ck, debenture bond, or other security of any railway or ' canal company in the United Kingdom which he shall at the time of his appointment own or be interested in for his own benefit ; and it shall not be lawful for any person appointed a Commissioner under this Act, so long as he shall hold office as such Commissioner, to purchase, take, or become interested in for his own benefit any such stock, share, debenture stock, debenture bond, or other security ; and if any such stock share, debenture stock, debenture bond, or other security, or any interest therein, shall come to or vest in such Commis- sioner by will or succession, for his own benefit, he shall within three calendar months after the same shall so come to or vest in him absolutely sell and dispose of the same or his interest therein. It shall not be lawful for the Commissioners, except by consent of the parties to the proceedings, to exercise any jurisdiction by this Act conferred upon them in any case in which they shall be, directly or indirectly, interested in the matter in question. The Commissioners shall devote the whole of their time to the performance of their duties under this Act, and shall not accept or hold any office or employment inconsistent with this provision. Transfer 6. Any person complaining of anything done or of any to Commis- omission made in violation or contravention of section two of iurisdic- * ne Railway and Canal Traffic Act, 1854, or of section sixteen tion under of the Eegulation of Bail ways Act, 1868, or of this Act, or 17 & 18 o an y enactment amending or applying the said enactments B. 3. ' respectively, may apply to the Commissioners, and upon the certificate of the Board of Trade alleging any such violation or contravention any person appointed by the Board of Trade in that behalf may in like manner apply to the Commissioners; and for the purpose of enabling the Commissioners to hear and determine the matter of any such complaint, they shall REGULATION OF RAILWAYS ACT, 1873. 123 have and may exercise all the jurisdiction conferred by section three of the Kail way and Canal Act, 1854, on the several courts and judges empowered to hear and determine complaints under that Act; and may make orders of like nature with the writs and orders authorised to be issued and made by the said courts and judges ; and the said courts and judges shall, except for the purpose of enforcing any decision or order of the Commissioners, cease to exercise the juris- diction conferred on them by that section. 7. Where the Commissioners have received any complaint Power for alleging the infringement by a railway company or canal Commit- ,.,,.. . . sioners to company of the provisions of any enactment in respect of enaD i e which the Commissioners have jurisdiction, they may, if they companies think fit, before requiring or permitting any formal pro- *negej ai ceedings to be taken on such complaint, communicate the violation same to the company against whom it is made, so as to afford of law - them an opportunity of making such observations thereon as they may think fit. 8. Where any difference between railway companies or Differences between canal companies, or between a railway company and k e * ween a canal company, is, under the provisions of any general or an j ca j, a i special Act, passed either before or after the passing of this companies Act, required or authorised to be referred to arbitration, such r f erre( i to difference shall at the instance of any company party to the Commis- difference and with the consent of the Commissioners be 8loners - referred to the Commissioners for their decision in lieu of being referred to arbitration : Provided, that the power of compelling a reference to the Commissioners in this section contained shall not apply to any case in which any arbitrator has in any general or special Act been designated by his name or by the name of his office, or in which, a standing arbitrator having been appointed under any general or special Act, the Commissioners are of opinion that the difference in question may more conveniently be referred to him. 9. Any difference to which a railway company or canal Power to company is a party, may, on the application of the parties to the difference, and with the assent of the Commissioners, be Comims- referred to them for their decision. 10. The following powers and duties of the Board of Trade Transfer to shall be transferred to the Commissioners ; nanu-ly, signer* ot 124 It AIL WAY AND CANAL TRAFFIC ACT, 1888. certain (1.) The powers of the Board of Trade under Part III. of the Railway Clauses Act, 1863, or under any special the Board Act, with respect to the approval of working agree- of Trade. ments between railway companies ; and, (2.) The powers and duties of the Board of Trade under section thirty-five of the Eailway Clauses Act, 1863, with respect to the exercise by railway companies of their powers in relation to steam vessels : And the provisions of the said Acts, conferring such powers or imposing such duties, or otherwise referring to such powers or duties, shall, so far as is consistent with the tenor thereof, be read as if the Commissioners were therein named instead of the Board of Trade. Explanation and Amendment of Law. Explana- 11. Whereas by section two of the Railway and Canal Traffic I'yY^S ^'' 1^54, it 18 enacted that every railway company and canal Viet. c. 31, company and railway and canal company shall, according to s. 2, as to tj ie i r respective powers, afford all reasonable facilities for the through j s j- j j T j- , A j * traffic. receiving ana forwarding and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats and other vehicles ; and that no such company shall make or give any undue or unreasonable preference or advantage to or in favour of any particular person or company, or any par- ticular description of traffic, in any respect whatsoever, or shall subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever ; and that every railway company and canal company and railway and canal company having or working railways or canals which form part of a con- tinuous line of railway, or canal or railway and canal com- munication, or which have the terminus station or wharf of the one near the terminus station or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding by one of such railways or canals all the traffic arriving by the other, without any unreasonable delay, and without any such pre- ference or advantage or prejudice or disadvantage as aforesaid, and so that no obstruction may be offered to the public desirous REGULATION OF RAILWAYS ACT, 1873. 125 of using such railways or canals or railways and canals as a continuous line of communication, and so that all reasonable accommodation may by means of the railways and canals of the several companies be at all times afforded to the public in that behalf: And whereas it is expedient to explain and amend the said enactment : Be it therefore enacted, that Subject as herein-after mentioned, the said facilities to be so afforded are hereby declared to and shall include the due and reasonable receiving, forwarding, and delivering by every railway company and canal company, and railway and canal company, at the request of any other such company, of through traffic to and from the railway or canal of any other such company at through rates, tolls, or fares (in this Act referred to as through rates). Provided as follows : (1.) The company requiring the traffic to be forwarded shall give written notice of the proposed through rate to each forwarding company, stating both its amount and its apportionment, and the route by which the traffic is proposed to be forwarded : (2.) Each forwarding company shall, within the prescribed period after the receipt of such notice, by written notice inform the company requiring the traffic to be forwarded whether they agree to the rate and route ; and, if they object to either, the grounds of the objection : (3.) If at the expiration of the prescribed period no such objection has been sent by any forwarding company, the rate shall come into operation at such expiration : (4.) If an objection to the rate or route has been sent within the prescribed period, the matter shall be referred to the Commissioners for their decision : (5.) If an objection be made to the granting of the rate or to the route, the Commissioners shall consider whether the granting of the rate is a due and reasonable facility in the interest of the public, and whether having regard to the circumstances, the route proposed is a reasonable route, and shall allow or refuse the rate accordingly : (6.) If the objection be only to the apportionment of the rate, the rate shall come into operation at the expiration nf thf prescribed period, but the derision of the Commissioners 126 XAILWAY AND CANAL TRAFFIC ACT, 1888. as to its apportionment shall be retrospective ; in any other case the operation of the rate shall be suspended until the decision is given : (7.) The Commissioners in apportioning the through rate shall take into consideration all the circumstances of the case, including any special expense incurred in respect of the construction, maintenance, or working of the route, or any part of the route, as well as any special charges which any company may have been entitled to make in respect thereof: (8.) It shall not be lawful for the Commissioners in any case to compel any company to accept lower mileage rates than the mileage rates which such company may for the time being legally be charging for like traffic carried by a like mode of transit on any other line of communication between the same points, being the points of departure and arrival of the through route : (9.) The prescribed period mentioned in this section shall be ten days, or such longer period as the Commissioners may from time to time by general order prescribe. Where a railway company or canal company use, maintain, or work,, or are party to an arrangement for using, maintaining, or working steam vessels for the purpose of carrying on a communica- tion between any towns or ports, the provisions of this section shall extend to such steam vessels, and to the traffic carried thereby. Powers of 12. Subject to the provisions in the last preceding section con- Commis- tained, the Commissioners shall have full power to decide that any tothrouqh proposed through rate is due and reasonable, notwithstanding that rates. a less amount may be allotted to any forwarding company out of such through rate than the maximum rate such company is entitled to charge, and to allow and apportion such through rate ac- cordingly. Provision 13. A complaint of a contravention of section two of the Railway for com- and Canal Traffic Act, 1854, as amended by this Act may be made HjW/c* ^ * the Commissioners by a municipal or other public corporation, authority local or harbour board, without proof that the complainants are aggrieved by the contravention : Provided that a complaint shall not be entertained by the Commissioners in pursuance of this section unless such complaint is accompanied by a certificate of the Board of Trade to the effect that in their opinion the case in respect of REGULATION OF RAILWAYS ACT, 1873. 127 which the complaint is made is a proper one to be submitted for adjudication to the Commissioners by such municipal or other public corporation, local or harbour board. 14. Every railway company and canal company shall keep Publication at each of their stations and wharves a book or books showing of rates - every rate for the time being charged for the carriage of traffic, other than passengers and their luggage, from that station or wharf to any place to which they book, including any rates charged under any special contract, and stating the distance from that station or wharf of every station, wharf, siding, or place to which any such rate is charged. Every such book shall during all reasonable hours be open to the inspection of any person without the payment of any fee. The Commissioners may from time to time, on the applica- tion of any person interested, make orders with respect to any particular description of traffic, requiring a railway company or canal company to distinguish in such book how much of each rate is for the conveyance of the traffic on the railway or canal, including therein tolls for the use of the railway or canal, for the use of carriages or vessels, or for locomotive power, and how much is for other expenses, specifying the nature and detail of such other expenses. Any company failing to comply with the provisions of this section shall for each offence, and in the case of continuing offence, for every day during which the offence continues, be liable to a penalty not exceeding five pounds, and such penalty shall be recovered and applied in the same manner as penalties imposed by the Railways Clauses Consolidation Act, 1845, and the Railways Clauses Consolidation (Scotland) Act, 1845 (as the case may require), are for the time being recoverable and applicable. 15. The Commissioners shall have power to hear and Power to determine any question or dispute which may arise with Commi- , , - ., ' sionera respect to the terminal charges of any railway company, to fi x where such charges have not been fixed by any Act of Par- terminal liament, and to decide what is a reasonable sum to be paid to ' any company for loading and unloading, covering collection, delivery, and other services of a like nature ; any decision of the Commissioners under this section shall be binding on all courts and in all legal proceedings whatsoever. 128 SAIL WAY AND CANAL TRAFFIC ACT, 1888. Arrange- ments between railway companies and canal companies. Mainten- ance of canals by railway companies. 16. No railway company or canal company, unless expressly authorised thereto by any Act passed before the passing of this Act, shall, without the sanction of the Commissioners, to be signified in such manner as they may by general order or otherwise direct, enter into any agreement whereby any control over or right to interfere in or concerning the traffic carried or rates or tolls levied on any part of a canal is given to the railway company, or any persons managing or con- nected with the management of any railway ; and any such agreement made after the commencement of this Act without such sanction shall void. The Commissioners shall withhold their sanction from any such agreement which is in their opinion prejudicial to the interests of the public. Not less than one month before any such agreement is so sanctioned, copies of the intended agreement certified under the hand of the secretary of the railway company or one of the railway companies party or parties thereto, shall be deposited for public inspection at the office of the Commis- sioners, and also at the office of the clerk of the peace of the county, riding, or division in England or Ireland in which the head office of any canal company party to the agreement is situate, and at the office of the principal sheriff clerk of every such county in Scotland, and notice of the intended agreement, setting forth the parties between whom or on whose behalf the same is intended to be made, and such further particulars with respect thereto as the Commissioners may require, shall be given by advertisement in the London, Edinburgh, or Dublin Gazette, according as the head office of any canal company party to the agreement is situate in England, Scotland, or Ireland, and shall be sent to the secretary or principal officer of every canal company any of whose canals communicates with the canal of any company party to the agreement ; and shall be published in such other way, if any, as the Commissioners for the purpose of giving notice to all parties interested therein by order direct. 17. Every railway company owning or having the manage- ment of any canal or part of a canal shall at all times keep and maintain such canal or part, and all the reservoirs, works, and conveniences thereto belonging, thoroughly repaired REGULATION OF RAILWAYS ACT, 1873. 129 and dredged and in good working condition, and shall pre- serve the supplies of water to the same, so that the whole of such canal or part may be at all times kept open and navigable for the use of all persons desirous to use and navigate the same without any unnecessary hindrance, interruption or delay. Kegulations as to Commissioners. 21. The Assistant Commissioners shall be subject to the orders Assistant Commis- sioners. of the Commissioners, and shall make such inquiries and reports and perform such other acts and services as the Commissioners may direct ; and it shall be lawful for such Assistant Commissioners, or either of them, to undertake such arbitration under the Act as the Commissioners with the consent of the parties to such arbitra- tion may direct; and the said Assistant Commissioners for the purposes of such inquiries, reports, and arbitrations shall have and may exercise all powers of entry, inspection, summoning and examining witnesses, requiring the production of documents, and administering an oath by this Act conferred upon the Com- missioners. 22. There shall be paid to each of the Commissioners such Salary of salary, not exceeding three thousand pounds a year, and to each ^? Assistant Commissioner such salary not exceeding fifteen hundred pounds a year, as the Treasury determine. The salaries and expenses of the Commissioners and of their officers and of the Assistant Commissioners shall be paid out of moneys to be provided by Parliament. 23. The Commissioners may from time to time, in the exercise Asscttw. of any jurisdiction in this Act conferred on them, with the consent of the Treasury, call in the aid of one or more assessors, who shall be persons of engineering or other technical knowledge. There shall be paid to such assessors such remuneration as the Treasury, upon the recommendation of the Commissioners, may direct. 24. The Commissioners may from time to time appoint such Appoint- officers and clerks with such salaries as the Commissioners, with ^^ the sanction of the Treasury, think fit. 25. For the purposes of this Act the Commissioners shall, subject Poteen of as in this Act mentioned, have full power to decide all questions whether of law or of fact, and shall also have the following powers ; that is to say : K 130 RAILWAY AND CANAL TRAFFIC ACT, 1888. (a.) They may, by themselves or by any person appointed by them to prosecute an inquiry, enter and inspect any place or building, being the property, or under the control of any railway or canal company, the entry or inspection of which appears to them requisite ; (b.) They may require the attendance of all such persons as they think fit to call before them and examine, and may require answers or returns to such inquiries as they think fit to make ; (c.) They may require the production of all books, papers, and documents relating to the matters before them ; (d.) They may administer an oath ; (e.) They may when sitting in open court punish for contempt in like manner as if they were a court of record. Every person required by the Commissioners to attend as a witnes shall be allowed such expenses as would be allowed to a witness attending on subpoena before a court of record ; and in case of dispute as to the amount to be allowed, the same shall be referred to a master of one of the superior courts, who, on request, under the hands of the Commissioners, shall ascertain and certify the proper amount of such expenses. Orders of 26. Any decision or any order made by the Commissioners for the purpose of carrying into effect any of the provisions of this Act may be made a rule or order of any superior Court, and shall be enforced either in the manner directed by section three of the Railway and Canal Traffic Act, 1854, as to the writs and orders therein mentioned, or in like manner as any rule or order of such Court. For the purpose of carrying into effect this section, general rules and orders may be made by any superior Court in the same manner as general rules and orders may be made with respect to any other proceedings in such court. The Commissioners may review and rescind or vary any decision or order previously made by them or any of them. The Commissioners shall, in all proceedings before them under sections 6, 11, 12 and 13 of this Act, and may, if they think fit, in all other proceedings before them under this Act, at the instance of any party to the proceedings before them, and upon such security being given by the appellant as the Commissioners may direct, state a case in writing for the opinion of any superior Court REGULATION OF RAILWAYS ACT, 1873. 131 determined by the Commissioners upon any question which in the opinion of the Commissioners is a question of law. The Court to which the case is transmitted shall hear and deter- mine the question or questions of law arising thereon, and shall thereupon reverse, affirm, or amend the determination in respect of which the case has been stated, or remit the matter to the Commis- sioners with the opinion of the Court thereon, or may make such other order in relation to the matter, and may make such order as to costs, as to the Court may seem Jit, and all such orders shall be final and conclusive on all parties: Provided that the Commissioners shall not be liable to any costs in respect or by reason of any such appeal. The operation of any decision or order made by the Commis- sioners shall not be stayed pending the decision of any such appeal unless the Commissioners shall otherwise order. Save as aforesaid, every decision and order of the Commissioners shall be final. 27. The Commissioners shall sit at such times and in such Sittings of places and conduct their proceedings in such manner as may c . ommiB " , sioners. seem to them most convenient for the speedy despatch of business ; they may, subject as in that Act mentioned, sit either together or separately, and either in private or in open court, but any complaint made to them shall, on the applica- tion of any party to the complaint, be heard and determined in open court. 28. The costs of and incidental to any proceeding before the Costt. Commissioners shall be in the discretion of the Commissioners. 29. The Commissioners may at any time after the passing of Poirtr of this Act and from time to time make such general orders as may be ^" mmu ~ r i T f i- i i ? noturs to requisite for the regulation of proceedings before them, including mafe applications for and the stating of cases for appeal, and also for general prescribing, directing, or regulating any matter which they are authorised by this Act to prescribe, direct, or regulate by general order, and also for enabling the Commissioners in cases to be specified in such general orders to exercise their jurisdiction by any one or two of their number : Provided, that any person aggrieved by any decision or order made in any case so specified may require a re-hearing by all the Commissioners ; they may further make regulations for enabling them to carry into effffi the provisions of thi* Art, fiml ,,,mi from time to time revoke and alter any K 2 132 RAILWAY AND CANAL TRAFFIC ACT, 1888. general orders or regulations made in pursuance of this Act. Every general order, and every alteration in a general order, made in pursuance of this section shall be submitted to the Lord Chancellor for approval, and shall not come into force until it shall be approved by him. Every general order purporting to be made in pursuance of this Act shall, immediately after the making thereof, be laid before both Houses of Parliament, if Parliament be then sitting, or if Parlia- ment be not then sitting, within seven days after the then next meeting of Parliament, and if either House of Parliament by a resolution passed within two months after such general order has been so laid before the said House, resolve that the whole or any part of such general order ought not to continue in force, the same shall after the date of such resolution cease to be of any force, without pre- judice nevertheless to the making of any other general order in it* place, or to anything done in pursuance of such general order before the date of such resolution ; but, subject as aforesaid, every general order purporting to be made in pursuance of this Act shall be deemed to have been duly made and within the powers of this Act, and shall have effect as if it had been enacted in this Act. Evidence 30. Every document purporting to be signed by the Com- of docu- missioners, or any one of them, shall be received in evidence without proof of such signature, and until the contrary is proved shall be deemed to have been so signed and to have been duly executed or issued by the Commissioners. Commis- 31. The Commissioners shall, once in every year, make a sioners report to Her Majesty of their proceedings under this Act annual 6 during the past year, and such report shall be laid before reports. both Houses of Parliament within fourteen days after the making thereof if Parliament is then sitting, and if not, then within fourteen days after the next meeting of Parliament. Miscellaneous. Determina- 32. The Commissioners may, at any time after the passing tion of fees. o f this Act, by general order, with the concurrence of the Treasury, appoint the fees to be taken in relation to pro- ceedings before them, and may from time to time, by general order, with the like concurrence, increase, reduce, or abolish all or any of such fees, and appoint new fees to be taken in relation to such proceedings. KEG ULA TION OF RAIL WA TS A CT, 1873. 133 33. The Public Offices Fees Act, 1866, shall apply to all Collection fees taken in relation to any proceedings before the Com- 29^30 missioners. Viet. c. 76. Any fee or payment in the nature or lieu of a fee paid in respect of any proceedings before the Commissioners and collected otherwise than by means of stamps shall be paid into the receipt of Her Majesty's Exchequer in such manner as the Treasury from time to time direct, and carried to the Consolidated Fund. 34. The costs, charges, and expenses of and incidental to any Taxation proceedings before the Commissioners which are incurred by any f costs ' person shall, if required, be taxed in the same manner and by the same persona as if such proceedings were proceedings in a superior Court. 35. Any notice required or authorised to be given under Notices this Act may be in writing or in print, or partly in writing h ? and partly in print, and may be sent by post, and if sent by post shall bo deemed to have been received at the time when the letter containing the same would have been delivered in the ordinary course of the post ; and in proving such sending it shall be sufficient to prove that the letter containing the notice was prepaid and properly addressed and put into a post office. 36. In the application of this Act to Scotland Applica- (!.") The term "attending on subpoena before a Court of tionof Act _, ,. ., ,. ., ~ _toScotland. Record means attending on citation the Court of Justiciary : (2.) The Queen's and Lord Treasurer's Remembrancer shall perform the duties of a master of one of the superior Courts under this Act. Temporary Provisions. 37. This Act shall continue in force for five years next after Duration the passing of this Act, and thenceforth until the end of the then next session of Parliament, but the expiration of this Act shall not Commit- affect the validity of anything done before such expiration. 134 RAILWAY AND CANAL TRAFFIC ACT, 1888. APPENDIX B. DRAFT RULES PROPOSED TO BE MADE UNDER THE PROVISIONS OF THE RAILWAY AND CANAL TRAFFIC ACT, 1888, SO FAR AS REGARDS RAIL- WAYS. Form of proposed classifica- tion and schedule. THE RAILWAY AND CANAL TRAFFIC ACT, 1888. (51 & 52 VICT. c. 25.) Board of Trade Rules with respect to classification of merchandise traffic, and schedules of maximum rates and terminal charges applicable thereto, to be submitted to the Department under the provisions of the above Act. NOTE. It is desirable that all memorials, objections, and other documents should be printed. In any case they should be on paper of foolscap size, written or printed on one side of the paper only, and with a quarter margin. RULES. Proposed Classification and Schedule. 1. The revised classification of merchandise traffic and revised schedule of maximum rates and charges applicable thereto to be submitted by every company to the Board of Trade under the Act (in these rules referred to as " the pro- posed classification and schedule ") shall be, as far as practic- able, in the Form No. 1 in the Appendix, with such variations as circumstances may require. There shall be fully stated APPENDIX B. 135 in the proposed classification and schedule amongst other things : (a.) The proposed rates and charges in respect of train loads and truck loads, and also for small packages, parcels, and merchandise traffic conveyed in pas- senger trains. (&.) The nature and amounts of all terminal charges pro- posed to be authorised in respect of each class of traffic, and the circumstances under which such terminal charges are proposed to be made, (c.) As far as practicable, the existing maximum rates which the company are by statute authorised to charge for the goods mentioned in the classifica- tion. (d.~) As far as practicable, the existing terminal charges in respect of the several classes of traffic, showing in each case the authority for making the charge. 2. The proposed classification and schedule shall be sub- Time for mitted to the Board of Trade as soon as may be after the pass- b ^ ing of the Act. It shall be in print, and must be printed on cation. and one side only of the page of paper, so as to leave the back of 8C hedule, the page blank. Three printed copies must be transmitted & c . to the Board of Trade, one of which must be sealed with the seal of the company and signed by the secretary. At the end of the proposed classification and schedule, or on some conspicuous part of the print thereof, a notice must be in- serted stating that objections are to be made by notice of objection addressed and sent by post to the Board of Trade, marked on the outside of the cover enclosing it "Railway and Canal Traffic Act, 1888," and that the notice of objection is to be sent to the Board of Trade within eight weeks from the date of the first advertisement of the submission of the proposed classification and schedule. 3. Where the company are unable to set out in the pro- Existing posed classification and schedule statements of the existing r * te * snd . . . , charges, maximum rates and charges, and the existing terminal when and charges in respect of the several classes of traffic mentioned how * ** in the proposed classification and schedule, the company shall transmit with the proposed classification and schedule a printed statement, made out in a tabular form, showing the 136 RAILWAY AND CANAL TRAFFIC ACT, 1888. existing maximum rates and charges for merchandise traffic which the company are authorised to charge, and the existing terminal charges, showing the authority for each of them. Where the statement cannot be made out in a tabular form, the several rates must be set out against the items or groups of items. Three printed copies must be sent. Additional 4. With the proposed classification and schedule there |^ c / in |? n _ s must also be sent three printed copies of the following : warded to (a.) A statement and map showing the lines of railway to Board of which the proposed classification and schedule are to apply, specifying with respect to each line whether it is owned, leased, or worked, or partly owned, leased, or worked by the company. (6.) A statement setting forth all the cases in which the company have been authorised to demand and receive any special rates or charges in respect of any lines, stations, or works. (c.) A statement of the names of the several newspapers in which the company propose to advertise that the proposed classification and schedule have been sub- mitted. Advertise- 5. (1.) The company shall, within one week from the ments. ^ a ^ e o f ^ e submission to the Board of Trade of the proposed classification and schedule, publish advertisements of the fact that a proposed classification and schedule have been sub- mitted to the Board of Trade (a.) In the London, Edinburgh, or Dublin Gazette, accord- ing as the line of railway affected is situate or partly situate iu England, Scotland, or Ireland. (6.) In such newspapers circulating in the districts served by the company's system as the Board of Trade may in each case approve, or, in default of such approval, as the company shall select, (c.) At every station on the company's system. The advertisement shall be in the Form No. 2 in the Appendix, with such variations as circumstances may re- quire, and there shall be set out therein, amongst other things, the following statements : (a.) That any one wishing to raise objections to the pro- posed classification and schedule may forward by APPENDIX B. 137 post a notice of objection to the Board of Trade in the prescribed form, marked on the outside of the cover enclosing it, " Railway and Canal Traffic Act, 1888," on or before the expiration of eight weeks from the date of the first advertisement ; (6.) The date on which the term of eight weeks expires ; (c.) That every objector must transmit to the company at its principal office a copy of the notice of objec- tion ; (d.) That printed copies of the proposed classification and schedule can be obtained at the price of one shilling at the principal office of the company, or on appli- cation to any station-master. 6. Each station advertisement shall be printed in large Station type, and posted in a conspicuous place in the station. 7. Printed copies of the proposed classification and schedule Co ies of shall be kept at the principal office of the company for sale classifica- to any applicant, and shall be obtainable from any station- *' on *? be master of the company at the price of one shilling per company copy. for 8ale - 8. The company shall, with the proposed classification Fees and and schedule, transmit to the Board of Trade the sum of 50/., expenses, which may be paid by a cheque for that sum drawn by the company, and payable to an assistant secretary of the Board of Trade. This fee will not necessarily cover the costs of all inquiries and other matters aiising upon the settlement of the classification and schedule, and the company may be required to defray any expenses incurred by the department which are not covered by the said sum of 501. Objections. 9. Every objection must be submitted to the Board of Form of Trade by a notice of objection in writing or print. Form "' No. 3 shall be used, with such variations as circumstances shall require. 10. Every notice of objection shall be signed by the person Signature making the objection, or where the objection is by a company " d *| 1n of a system ble is not to i that such a King is prescr fe. of graduated be taken us system or [bed by the 152 RAILWAY AND CANAL TRAFFIC ACT, 1888. MAXIMUM KATES AND TERMINAL CHARGES. Proposed Maximum Rates. Proposed Maximnm Terminal Charges. Observations. Existing Maximnm Rates. Existing Terminal Charges. Observations. For first miles, or any part of such distance. For next miles, or any part of such distance. For next miles, or any part of such distance. Nature of Charge. Amount of Charge. The adoptic rates in this 1 an intimatior mode of char; Board of Trai n of a system able is not to that such a ?ingis prescr le. )f graduated be taken as system or ibed by the CLASS B. [Set out list of Articles.'] [Tables as above."] [N.B. This classification to be continued for the different classes of goods traffic.] ANIMAL CLASS. EXCEPTIONAL ARTICLES. REGULATIONS AS TO MERCHANDISE TRAFFIC, APPENDIX B. 153 No. 2. Advertisement. THE RAILWAY AND CANAL TRAFFIC ACT, 1888. PROPOSED REVISION OF RATES, TOLLS, AND CHARGES FOR MERCHANDISE TRAFFIC. [Name of Company.] Notice is hereby given that, pursuant to the Railway and Canal Traffic Act, 1888, this company has submitted to the Board of Trade a proposed revised classification of mer- chandise traffic, and revised schedule of maximum rates, tolls, dues, and charges applicable thereto, proposed to be charged by this company ; and that in such proposed classi- fication and schedule there are stated the nature and amounts of all terminal charges proposed to be charged in respect of each class of traffic, and the circumstances under which the terminal charges are proposed to be made. Printed copies of the proposed classification and schedules can be obtained at the price of Is. at the principal office of the company [here state the address], or on application to the principal toll collector at or person in charge of any of the company's toll collection offices. Any one wishing to raise any objection to the proposed classification and schedule may forward, by post, a notice of objection to the Board of Trade, marked on the outside of the cover enclosing it " Railway and Canal Traffic Act, 1888." Notices of objection must be transmitted to the Board of Trade so as to reach there on or before the expiration of eight weeks from the day of Every objector must at the same time transmit to the secretary [or principal officer'] of the company at its principal office [here state the address'] a copy of the notice of objection, otherwise the objection will be liable to be dismissed without being heard. Due notice will be given of the time appointed for hearing and disposing of notices of objection. Secretary. 154 RAILWAY AND CANAL TRAFFIC ACT, 1888. No. 3. Notice of Objection. EAILWAY AND CANAL TRAFFIC ACT, 1888. To THE BOARD OF TRADE: I, the undersigned [fill in Christian and surname of ob- jector], hereby give notice that I object to the parts of the proposed classification of merchandise traffic and schedule of ' rates, tolls, dues, and charges of the company set forth in the first column of the schedule to this notice, on the ground set forth in the second column of this notice, and that my address, to which all notices and communications may be sent, is [here state address of objector in full]. Signed Dated the day of SCHEDULE. Reference to Proposed Classification and Schedule. Grounds of Objection. APPENDIX C. EULES OF PEOCEDUEE IN THE COUET OF THE EAILWAY AND CANAL COMMISSION, "WITH SCHEDULE OF FOEMS OF PLEADING AND TABLE OF FEES. RULES OF PROCEDURE. 157 APPENDIX C. RULES OF PROCEDURE IN THE COURT OF TBE RAILWAY AND CANAL COMMISSION, WITH SCHEDULE OF FORMS OF PLEAD- ING AND TABLE OF FEES. THE Rules of Procedure commence with defining " ap- plicant " to include all persons or authorities authorized to make complaint to the Commissioners, and " defen- dant " as any persons or company against whom the complaint is made or who shall appear in opposition thereto. The term " application " includes complaint. Rules 2-17 lay down the mode of commencing pro- How pro- ceedings, and expressly state in what terms the applica- com- 1 * 8 tions or complaints made under the provisions of various menced> sections in the Railway Acts are. to be laid. The appli- cation must be in a form given in the schedule to the Rules that is to say, it must be entitled in the Court of the Railway and Canal Commission, and contained in paragraphs numbered consecutively, and setting out a clear and concise statement of the facts relied upon. The applicant's name and address (or that of his solicitor) must be indorsed thereon. The application must also be signed by the applicant or by his solicitor, filed with the Registrar of the Court, and indorsed with a notice requiring the defendant within fifteen days to put in an answer ; failing such answer the Commissioners may hear the application ex parte. A copy of the appli- 158 RAILWAY AND CANAL COMMISSION. cation must be served on the defendant under the pro- visions of Rule 21. A claim for damages under section 12 is specially dealt with in Rule 18. Thereunder a defendant may pay money into Court according to the regulations of Order XXII., rr. 2-7, of the Rules of the Supreme Court, 1883. Answer. 'j^g time limited for filing the defendant's answer is fifteen days from the service of the application. Like rules apply to its form and contents as in the case of the application, and a copy must be delivered to the applicant or to his solicitor. Reply. Within six days from such delivery of the answer the applicant shall file his reply (if any), and then the pleadings are closed (saving only joinder of issue) unless by leave of the Commissioners, and the pleadings may be closed without reply by implied joinder. Amend- Powers are given (rule 63) to the Commissioners at IllHlt Of pleadings, any stage to amend pleadings or to strike out therefrom embarrassing matter. issues. Power is also given to the Commissioners to direct issues of fact to be prepared, and to hear as a preliminary step to the trial of facts any point of law which may substantially dispose of the application. Discovery, Rules 35-41 provide respectively for discovery, inter- rogatories, production and inspection of documents, and notices to produce and admit, and notice of discontinuance. interim A very important rule (34) provides that interim injunction. . . , , _ injunctions may be moved lor at any stage of the pro- ceedings, but such applications must be disposed of by the ex ojfitio Commissioner. Witness The attendance of witness shall be procured by evidence, subpoana, a form for which is given in the schedule, but RULES OF PROCEDURE. 159 although the evidence shall be as a rule viva voce, affidavits and depositions may be used, conformably with the pro- visions of rule 45, as to the production of the witness for cross-examination. The date of hearing may be fixed by the parties on Hearing. application to the Eegistrar ; and if at the hearing either party fails to appear, the case may be heard ex parte on proof of service being given to the Commissioners. The Commissioners may either dismiss the application Judgment after hearing, or make such order as may seem to them and e just, or to be warranted by the evidence and may order the costs to be taxed. Interlocutory applications may be heard before the interio- Eegistrar upon summons (rule 53), and appeal lies from applied- him to the Commissioners by way of indorsement on the tlons - summons, or by notice in writing to the opposite party within four days. Such appeal however shall not, with- out order, operate as a stay of proceedings. Kule 54 deals with the question of affidavits. These, Affidavits. in interlocutory applications, may extend to the de- ponent's belief, but otherwise must be confined to the personal knowledge of the witness. Although the ex officio Commissioner is to be entitled to the same vacations as are observed in the superior Court of which he is a member, the time between the 12th of August and the 24th of October is to be reckoned in the computation of time for filing, amending, or delivering, unless otherwise ordered. Formal objections are not to prevail before the Commissioners, although when applicable the general principles of practice in the superior Courts may, in the discretion of the Commis- sioners, be adopted and applied. As well as the forms of pleading, &c., given, the 160 RAILWAY AND CANAL COMMISSION. schedule appends a scale of fees to be taken in relation to the proceedings in the Railway Court. THE RAILWAY AND CANAL COMMISSION RULES. Cf. sec. 20, GENERAL RULES made by the Commissioners established under the statute 51 & 52 Viet. c. 25, intituled " An Act for the better Regulation of Railway and Canal Traffic and for other purposes," for regulating the procedure and practice before them. Interpretation. interpre- 1. In the construction of these Rules and the Forms terms. herein referred to, words importing the singular number shall include the plural, and words importing the plural number shall include the singular number, and the following terms shall (if not inconsistent with the con- text or subject-matter) have the respective meanings " Appiica- hereinafter assigned to them ; that is to say, " applica- "appi n tion " shall include complaint under the Railway and cant -" Canal Traffic Act, 1854, and the Railway and Canal Traffic Acts, 1873 and 1888 ; " applicant " shall include all persons or authorities authorised to make any appli- " Defend- cation or complaint to the Commissioners ; " defendant " shall mean the persons or company against whom the application or complaint is made, or any persons or authorities who may appear in opposition to such appli- cation or complaint ; " solicitor " shall include any person entitled under section 51 of the Railway and Canal Traffic Act, 1888, to practise as an attorney or agent in proceedings before the Commissioners ; and terms defined by the Railway and Canal Traffic Acts, RULES OF PROCEDURE. 161 1873 and 1888, shall, unless there be something repug- nant thereto in the context, have, in these rules, the same meanings that are assigned to them by those Acts. Application or Complaint to the Commissioners. 2. Every proceeding before the Commissioners, except Proceed- proceedings under section 14 of the Regulation of Eail- ^. 01 ways Act, 1873, and sections 33 and 34 of the Railway me ? ed > J and form and Canal Traffic Act, 1888 (a), and applications under of appik-a- tlon 2T6116~ rules 53 and 54 (b) of these rules shall be commenced by rally. an application made to them, which shall be in writing, or, printed, and signed by the applicant or his solicitor, or in the case of a company or any of the authorities mentioned in section 7 of the Railway and Canal Traffic Act, 1888, being applicants, the application shall be signed by their chairman, manager, secretary or solicitor. It shall contain a clear and concise statement of the facts, the grounds of application, and the relief or remedy to which the applicant claims to be entitled. It shall be divided into paragraphs numbered consecutively. It shall Appiica- be indorsed with the name and address of the applicant, horsed, 6 and, if there be a solicitor acting for him in the matter, cf - rule 20> with the name and address of such solicitor, and if he be an agent for another solicitor in the matter, then also the name and address of such other solicitor. The ap- plication shall be according to Form No. 1 in the First Schedule hereto, or to the like effect. (a) Imposing on Companies duties in respect of publication of rate books. Cf. sec. 13, p. 44. (&) Rule 53 relates to interlocutory proceedings, and rule 54 to proceedings on affidavit. As to time for pleading, cf. rules 59, G3, and 66. M 162 RAIL WA Y AND CANAL COMMISSION. 3. Every application made to the Commissioners under section 6 of the Regulation of Eailways Act, 1873 (a), or section 9 (&) of the Kailway and Canal Traffic Act, 1888, shall be for an order enjoining the company com- plained of to do or to desist from doing the acts therein specified (c). (a) Sec. 6 of Act of 1873, p. 122. (&) Seep. 37. Jurisdiction of Commissioners under special acts as to sidings. (c) As to orders on two or more companies, of. sec. 14, p. 45. 4. Every application made to the Commissioners under section 8 of the Eegulation of Eailways Act, 1873 (a), shall be for an order determining the difference referred to them (with their consent) in lieu of being referred to arbitration, such consent to be signified by sealing the indorsement on such application; which indorsement shall be according to Form No. 3 in the first schedule hereto. The applicant shall state whether or not it is a case in which any arbitrator has in any general or special Act been designated by his name or by the name of his office, or in which a standing arbitrator has been appointed under any general or special Act. (a) p. 123 and cf. sec. 15, p. 46, see also rule 16. 5. Every application made to the Commissioners under section 9 of the Eegulation of Eailways Act, 1873 (a), shall be signed by all the parties to the difference, or their solicitors, and shall be for an order determining the difference referred to the Commissioners (with their consent). The consent of the Commissioners shall be signified as aforesaid. (a) p. 123. Providing for reference to Commissioners of difference to which a railway or canal company is a party. RULES OF PROCEDURE. 163 6. Every application made to the Commissioners under section 10, sub-section 1, of the Regulation of Railways Act, 1873, shall be for the approval by the Commissioners of any working agreement between railway companies, whereof they desire to have the Commissioners' approval, or shall be for the exercise of any other powers (to be specified in the said application) transferred by the said sub-section to the Commissioners with respect to the approval of working agreements. 1 (a) (a) The section referred to (p. 124) transferred the powers of the Board of Trade under Ft. III. of the E. C. Act, 1863, to the Commissioners. Cf. section 11 and n., p. 40. 7. Every application made to the Commissioners under section 25, sub-section 4, of the Railway and Canal Traffic Act, 1888 (a), shall be for an order allowing the through rate or route, or through rate and route proposed by the applicant and objected to by the forwarding com- pany or companies. (a) Cf. sec. 25, B. 4, p. 70 and note p. 74. 8. Every application made to the Commissioners under section 25, sub-sections 6 and 7, of the Railway and Canal Traffic Act, 1888, shall be for an order allowing or deter- mining (as the case may be) the apportionment of the through rate objected to by the forwarding company or companies. Cf. p. 70. 9. Every application made to the Commissioners under section 14 of the Regulation of Railways Act, 1873, and 1 The public notice required to be given by the railway companies should be according to Form No. 9 of Schedule I., and the Commis- sioners' directions prescribing the steps to be taken to obtain their approval of working agreements are set out in Schedule IV. M 2 164 RAILWAY AND CANAL COMMISSION. under sections 33 and 34 of the Kailway and Canal Cf. rule 2. Traffic Act, 1888, may be by summons, and shall be for an order upon the company against whom the application is made to keep at the stations, wharves, or ports named in such summons a book or books of rates and distances, and other particulars required by those sections or either of them, or for an order allowing inspection of such books, or for an order to distinguish in the book or books, in such summons mentioned how much of the rate in respect whereof the application is made for the conveyance of the particular description of traffic therein named on the railway or canal in question, including therein tolls for the use of the railway or canal, for use of carriages or vessels, or for locomotive or other tractive power, and how much is for other expenses, specifying Cf. rule 54, t ne na ture and detail of such other expenses. The ap- ]>, 1 O*3. plicant in such last-mentioned case shall file an affidavit at the time of taking out such summons stating that he is interested in the matter, and showing how he is inter- ested therein. 10. Every application made to the Commissioners under section 15 of the Kegulation of Railways Act, 1873, 1 or under section 37 of the Railway and Canal Traffic Act, 1888 (a), shall be for them to hear and determine the question or dispute therein mentioned with respect to the terminal charges of the company against whom the application is made, and to decide what is a reasonable sum to be paid to such company in respect of such terminal charges. Ca) Applying 36 & 37 Viet., c. 48 to canals (cf. p. 95 and as to terminal charges, p. 61). 1 p. 127. RULES OF PROCEDURE. 165 11. Every application made to the Commissioners under section 16 of the Kegulation of Eailways Act, 1873. 1 shall be for them to sanction the agreement therein mentioned, such sanction to be signified by certificate under their seal. Before the companies enter into such agreement, notice of their intention to do so shall be given by them, or one of them, by advertise- ment to be inserted once at least in each of three successive weeks in some newspaper published or circu- lating in the county or counties in which the canal to which the proposed agreement relates or some portion of such canal is situate. Such notice shall be according to Form No. 8 in the first schedule hereto. 12. Every application made to the Commissioners under section 17 of the Regulation of Railways Act, 1873. 2 shall be for an order upon the railway company against whom the application is made, restraining them from permitting and suffering the canal therein men- tioned, or parts thereof, or works belonging thereto, to remain unrepaired, or in want of dredging, or not in good working condition, or without proper supplies of water thereto ; and also enjoining them to keep and maintain the said canal or such parts thereof, or such works thereto belonging, thoroughly repaired or dredged or in good working condition, or to preserve the supplies of water to the same. The application in such case shall specify the obstruction, want of repair, or other defect sought to be remedied, and show in what part of the canal or works such obstruction, want of repair, or other defect exists. 13. Every application made to the Commissioners under section 10 of the Railway and Canal Traffic Act, 1 >. 128. * >. 1'JS. 166 RAILWAY AND CANAL COMMISSION. 1888, 1 shall be for them to hear and determine the ques- tion or dispute therein mentioned with respect to the legality of any toll, rate, or charge or portion of a toll, rate, or charge charged or sought to be charged by any Of. rule 30. company for merchandise traffic. The parties may con- cur in stating such question or dispute in the form of a joint application without further pleadings. Appiica- 14. Every application by a company under section 29, Group sub-section 3, of the Kailway and Canal Traffic Act, 1888, 2 rates. shall be for an order determining whether the group rate, or the rate as to which there is a doubt, is or is not a contravention of section 2 of the Kailway and Canal Traffic Act, 1854, 3 and in such application the company applying shall state the nature of the doubt considered to exist. Where such an application is in respect of a group rate it shall specify, in addition to the amount of the rate, the names of the places grouped together, and such distances as may be material for the purposes of the application. The company making the application for such order shall give one month's public notice of their intention to apply to the Commissioners under this section by advertisement in at least one London daily newspaper and in one newspaper in general circulation in the dis- trict or districts within which the group is compre- hended ; such advertisements shall in each case be in- serted in each of three successive weeks, at intervals of not less than a week, in each of the newspapers in which they appear. In such notice full particulars shall be given of the group rate, or the rate or rates as to which the Commissioners' determination is to be asked. 1 p. 38. 2 p. 83. 3 p. 119. RULES OF PROCEDURE. 167 15. Every application to the Commissioners under section 38, sub-section 1, of the Eailway and Canal Traffic Act, 1888, 1 shall be for an order on the railway company or on the directors or officers of the railway company or on any person acting on their behalf, and having such control or right of interference as mentioned in the said section, requiring the tolls, rates, and charges levied by such railway company, directors, officers, or persons on the traffic of, or for the conveyance of mer- chandise on, the canal in respect of which the complaint is made to be altered and adjusted in such a manner that the same shall be reasonable as compared with the rates and charges for the conveyance of merchandise on the railway. The applicant shall state in what manner the existing tolls, rates, and charges so levied as aforesaid are calculated to divert traffic from the canal to the rail- way to the detriment of the canal, or of persons sending traffic over the canal or other canals adjacent to it, and shall state the amount and the particulars of the altera- tion or reduction proposed. 16. The procedure in cases under the following Acts Differences shall be in each case, as nearly as may be, the same as ,^19 O f that directed to be taken by rule 4 of these rules in pro- Re suiatiou * orKaihvays ceedings under the 8th section of the Regulation of Act, 1 873; - orro the Board Railways Act, 1873. of Trade (a.) Differences between the Postmaster-General and any company, referred to the Commissioners l ? 7 *j and under the provisions of section 19 of the Regu- graph Act, lation of Railways Act, 1873. (b.) Differences referred to the decision of the Com- missioners by the Board of Trade under the 1 j.. '.in. 168 RAILWAY AND CANAL COMMISSION. provisions of Part 2 of the Board of Trade Arbitrations Act, 1874. (c.) Differences required by sections 4 and 5 of the Telegraph Act, 1878, to be referred to the decision of the Commissioners. Reference 17. Where the Board of Trade under the provisions of under Cheap section 3 of the Cheap Trains Act, 1883, have referred isss"" c ' any matters contained in the said section for the decision of the Commissioners, the railway company or companies concerned shall, on receiving notice from the Commis- sioners to do so, file an answer within such time as the Commissioners may order to the allegations contained in the order of the Board of Trade referring the matter as aforesaid. Claim for Damages. Damages, 18. If the applicant, in any matter which the Com- daiawd. missioners have jurisdiction to hear and determine, claims damages from the defendant, he shall in such case state in his application the amount of damages claimed, and the matter in respect of which such claim is made, and the defendant may before or at the time of delivering his answer, or, by leave of the Commissioners, Payment at any later ti?rie, pay into court a sum of money by way of satisfaction, which shall be taken to admit the matter in respect of which the payment is made; or the de- fendant may, with an answer denying liability, pay money into court. If the defendant, in any matter which the Commissioners have jurisdiction to hear and determine, desire to have all claims for damages in respect of such matter dealt with by the Commissioners, he shall make such claim in his answer, or, by leave of the Commissioners, at any subsequent stage of the proceedings. RULES OF PROCEDURE. 169 The provisions of rules 2, 3, 4, 5, 6, and 7 of Order 22 For these r rules, see of the Bules of the Supreme Court, 1883, and the forms Sch. n., required to be used in such rules shall, mutatis mutandis, p ' apply to and be used in all proceedings in this rule provided for. Money paid into court in applications made to the Commissioners in English cases shall be paid into the Bank of England (Law Courts Branch), and the manner of payment into and out of court, and the manner in which money in court shall be dealt with, shall be sub- ject to the regulations contained in the Supreme Court Fund Bules in force for the time being so far as the same are applicable. Money paid into court on applications made to the Commissioners in Scotch cases shall be paid into one of the incorporated or chartered banks in Scotland. Money paid into court on applications made to the Commissioners in Irish cases shall be paid into the Bank of Ireland. (a) Cf. sec. 12, p. 42. As to defence of tender, see James v. Fane, 29 L. J. Q. B. 169, and as to payment in part of claim, Mcllwraithv. Green, 14 Q. B. D. 766. Filing Application. 19. Every application to which any of the foregoing Filing rules apply shall be indorsed as required by rule 2 and J filed with the Begistrar to the Commissioners (herein- after in these rules called " the Begistrar ") at their To be filed office, and except in cases under sections 10 and 1G of ^ lie &*~ the Begulation of Bailways Act, 1873, three copies of cf. rule 6. the application shall also be left with the Begistrar. The Begistrar shall make out a list of the applications so filed according to the order in which they are received 170 KAIL WAY AND CANAL COMMISSION. by him, and such list may be inspected at the office during office hours. The applications shall be heard by the Commissioners so far as it may in their judgment be practicable according to the order in which they are so entered upon the list. Indorsement on Application. indorse- 20. In all proceedings (except proceedings under ,"iica- )0n sections 8, 9, 10, and 19 of the Kegulation of Railways tion - Act, 1873, and subject to rule 22 of these rules) a copy ' of the application shall be indorsed with a notice to the defendant to put in an answer to the application within fifteen days from the service thereof, and that in default of such answer being put in within the time named, or any extension thereof duly granted, the Commissioners may proceed to hear the said application ex parte. Such indorsement shall be according to Form No. 2 in the First Schedule hereto, and shall be sealed by the Regis- trar with their seal. Service of Application. Service ot 21. A copy of the application indorsed as aforesaid tiou. shall in all cases (except under sections 9 and 10 of the Regulation of Railways Act, 1873, and subject to rule 22 of these rules) be served by leaving the same with the manager, secretary, or chief clerk of the defendant at his principal office in any part of the United Kingdom, or in such manner as the Commissioners by special order may direct, but no such personal service shall be neces- sary when the defendant's solicitor or agent undertakes in writing to accept service of such copy on his behalf. RULES OF PROCEDURE. 171 Suspension of Proceedings. 22. If the Commissioners think fit, in pursuance of Communi- section 7 of the Eegulation of Railways Act, 1873, 1 to communicate an application to the company against whom it is made, so as to afford them an opportunity of complained making observations thereon before requiring or per- mitting any formal proceedings to be taken thereon, they shall give notice thereof to the applicant within seven days from the date of the application having been left at their office, and thereupon all formal proceedings thereon shall be suspended until further notice from the Commissioners to the applicant. 23. The Commissioners may also within the said Commis- . , . sioners period of seven days, or at any time thereafter, require requiring further information or particulars or documents from the informl- applicant, and may suspend all formal proceedings upon tion - the application until satisfied in this respect. 24. If the Commissioners at any stage of the proceed- inquiries ings think fit to direct inquiries to be made under Act of section 3 of the Eailway and Canal Traffic Act, 1854, 1854< they shall give notice thereof to the parties to the appli- cation, and may stay proceedings or any part of the proceedings thereon until further notice from the Com- missioners (a). (a) Cf. section 31, sub-seos. 3, 5, p. 86. Consent Cases. 25. In all cases the parties may by consent in writing Consent dispense with the formal proceedings herein-after men- rc e tioned, or some portion of them, and orders by consent dispensing 1 i'. 123. 172 RAILWAY AND CANAL COMMISSION. with for- may be drawn up, and, if approved of by the Commis- " sioners, may be sealed with their seal. Answer. Form of, 26. Within fifteen days from the service of the appli- for filing cation, or within such shorter or extended time as may delivery ke ^ xe ^ by the Commissioners, the defendant shall file Cf. rule 66. with the Eegistrar their answer to the application, and leave with him three copies of the same, and the defen- dant shall within such time deliver to the applicant or Cf. rr. is & to his solicitor a signed copy of the answer. The answer shall contain a clear and concise statement of the facts which form the ground of defence, or of any other objec- tions relied upon. It may admit the whole or any part of the facts stated in the application. It shall be divided into paragraphs numbered consecutively, and it shall be signed by the person actually making the same, and who Extension is acquainted with the facts stated therein. It shall be ruie'ee. C " indorsed with the name and address of the defendant, and if there be a solicitor acting for him in the matter, with the name and address of such solicitor, and if he be an agent for another solicitor in the matter, then also with the name and address of such other solicitor. It shall be according to Form No. 4 in the First Schedule hereto, or to the like effect. As to computation of time, cf. rule 59. Reply. Form of, 27. Within six days from the delivery of the answer for filing to the applicant, or within such shorter or extended time as may be fixed by any special order of the Commis- sioners, the applicant shall file his reply (if any) with RULES OF PROCEDURE. 173 the Registrar, and leave with him three copies of the same, and shall within such time deliver to the defendant or to his solicitor a copy of the reply. The applicant in such reply may object to the said answer as being in-Cf. rr. 63 & sufficient, stating the grounds of such objection or deny the facts stated therein, or may admit the whole or any part of such facts. The reply shall be signed by the applicant, his solicitor or agent, and be according to Form No. 5 in the First Schedule hereto, or to the like effect. Power of Amendment and enlargement of time is given by rules 63 & 66. Pleadings after Reply "by leave. 28. No pleading subsequent to reply other than a Pleadings joinder of issue shall be pleaded without leave of the a Commissioners. Close of Pleadings by implied Joinder. 29. If the applicant does not deliver a reply, or any Close of party does not deliver any subsequent pleading within ^default. the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all material statements of facts in the pleading last delivered shall be deemed to have been denied and put in issue. Power to direct and settle Issues. 30. If it appear to the Commissioners at any time that Commis- the statements in the application or answer or reply do m not sufficiently raise or disclose the issues of fact in 188 dispute between the parties, they may direct them to 174 RAILWAY AND CANAL COMMISSION. prepare issues, and such issues shall, if the parties differ, be settled by the Commissioners. Cf. Order XXXIII. of Eules of the Supreme Court. Preliminary Questions of Law. Commis- 31. The Commissioners may by consent of the parties maydecide * anv proceedings before them, or on the application of preiimi- either party, order any point of law raised by the plead- questious ings to be set down for hearing and disposed of at any time before the hearing of the application. The argu- ment of such point of law shall take place before not less than three Commissioners, and upon such hearing, if in the opinion of the Commissioners the decision of such point of law substantially disposes of the whole applica- tion, the Commissioners may order that the argument shall be the hearing of the case, and thereupon may grant and dismiss the application or make such other order therein as may seem to them just. Preliminary Meeting. 32. If it appear to the Commissioners at any time before the hearing of the application that it will be to liminary the advantage of the parties to hold a preliminary meet- ing for the purpose of fixing or altering the place of hearing, determining the mode of conducting the inquiry, the admitting of certain facts or the proof of them by affidavit, or for any other purpose, they shall have power to hold such meeting upon giving notice thereof to the parties, and may thereupon make such order as shall seem to them fit under the circumstances. RULES OF PROCEDURE. 175 Preliminary Communication with the Parties. 33. The Commissioners may, if they think fit, instead C . . . . , sionersmay oi holding such meeting as in the preceding rule men- communi- tioned, communicate with the parties in writing, and ^^ may require answers to such inquiries as they may think fit to make. Interim Injunction. 34. An interim injunction may be moved for at any Commis- stage of the proceedings. Such application (except as may grant after provided) shall be made to and be disposed of by the ex ojficio Commissioner for the part of the United Kingdom in which the proceedings (under which the application is made) are depending. Notice of such application shall be given to the parties affected thereby at least two clear days before the application is moved : Provided that in cases of emergency it shall be com- petent to the ex ojfieio Commissioner to grant the interim injunction sought without previous notice. An applica- tion to dissolve any injunction may be made at any time to the ex ojficio Commissioner on two clear days' notice to the party in whose favour the injunction was granted (a). (a) Before granting an interim injunction, the Court should be satisfied that there is a serious question to be tried at the hearing : see Preston v. Luck, 27 Ch. D., p. 505. For the practice in the High Court as to interim injunctions : see the "Annual Practice, 1888-9," p. 674. Discovery of Documents and Interrogatories. 35. In England and Ireland either party may, without Appiica- filing any affidavit, apply to the Commissioners for an discovery. order to direct the other party to make discovery on oath of the documents which are or have been in his posses- 176 RAILWAY AND CANAL COMMISSION. sion or power relating to the matter in question. In Scotland either party may apply to the ex officio Com- missioner for an order on the other party to produce all documents which are in his possession or power relating to the matter in question, or either party may apply as aforesaid for a diligence to recover all documents, in whosesoever possession they may be, relating to the matter in question. Provided that in either case the party making the application shall give to the other party at least three days' notice of his intention to make it, and shall (where a diligence is sought) with such notice furnish a copy of the specification setting forth the documents for recovery of which a diligence is sought. interroga- 36. In England and Ireland the applicant may at any time after serving his application, and the defendant may at or after the time of delivering his answer, by leave of the Commissioners, deliver interrogatories in writing for the examination of the opposite party. Interrogatories shall be answered by affidavit to be filed within ten days or within such other time as the Commissioners may allow. The interrogatories may be answered partly by one person and partly by another or others, but in all cases the party answering any part thereof shall state in his answer that the matters stated by him are within his personal knowledge, and, if any person interrogated omits to answer or answers insuffi- ciently, the party interrogating may apply to the Com- missioners for an order requiring him to answer, or to answer further, as the case may be. No payment into court of a sum of money as deposit shall be required from a party seeking discovery by interrogatories or otherwise. RULES OF PROCEDURE. 177 In Scotland either of the parties may at any time after statement i i t i ' f ^1 f facts in the service of the application or lodging ot the answer Scotland. respectively, and before any proof has been adduced, present to the ex officio Commissioner a statement of facts which he desires to be answered by his opponent, and may move the ex officio Commissioner for an order on his opponent to answer the same, with which motion the ex officio Commissioner shall deal as appears just. Notice of such motion (accompanied by a copy of the statement of facts) to be served at least three days before the motion is to be heard. Production and Inspection of Documents. 37. It shall be lawful for the Commissioners, at any Production time during the pendency of any matter before them, to me ns U ~ n order the production by any party thereto, upon oath, of oath - such of the documents in his possession or power relating to any such matter as the Commissioners shall think right ; and the Commissioners may deal with such documents when produced before them in such manner as shall appear just. 38. Either party shall be entitled at any time before Documents or at the hearing of the case to give a notice in writing ^ plead-* to the other party in whose application or answer or reply reference is made to any document, to produce it for the inspection of the party giving such notice, or of his solicitor, and to permit him to take copies thereof, and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such proceeding without the leave of the Commissioners, unless he satisfy the Com- missioners that he had sufficient cause for not complying with such notice. N 178 RAILWAY AND CANAL COMMISSION. Notice to produce. Notice to 39. Either party may give to the other a notice in produce. . r j j t writing to produce such documents as relate to any matters in difference (specifying the said documents), and which are in the possession or control of such other party, and if such notice be not complied with, secondary evidence of the contents of the said documents may be given by or on behalf of the party who gave such notice. Notice to admit. 40. Either party may give to the other party a notice in writing to admit any documents saving all just ex- ceptions, and in case of neglect or refusal to admit after such notice, the costs of proving such documents shall be paid by the party so neglecting or refusing, whatever the result of the application may be, unless at the hear- ing the Commissioners certify that the refusal to admit was reasonable, and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is in the opinion of the taxing officer a saving of expense. Notice of Discontinuance. Notice 41. When any application made to the Commissioners application has been withdrawn or settled, the applicant shall ^settled 11 i mm ediately thereupon give notice thereof to the Ee- gistrar. Witnesses. Attendance 42. The attendance of witnesses with or without docu- ments shall be enforced by subpoena, which may be sued out by either party requiring the attendance of such witness. Such subpoana shall be according to Forms RULES OF PROCEDURE. 179 No. 6 or 7 in the First Schedule hereto, and shall be sealed by the Kegistrar with the seal of the Commission, and may be served in any part of the United Kingdom. The witnesses shall be entitled to the same protection as when subpoenaed or cited to attend a superior court, and the laws and practice in force for the time being relating to witnesses in a superior court shall apply to them in proceedings before the Commissioners. Appointing Date of Hearing. 43. The applicant, at the time of filing his reply (if Appiica- any), or if the defendant make default in putting in his fix date of answer, or at any time after the pleadings are closed, hearm s- may apply to the Eegistrar to fix a date for the hearing. If the applicant does not within six weeks after the close of the pleadings, or within such extended time as the Commissioners may allow, apply to the Kegistrar to fix a date for the hearing, the defendant may do so. No such application shall be made without two days' previous notice in writing to the opposite party. If either of the parties fail to appear on the application to fix a day for hearing, notice of the day appointed shall be served within a time to be named by the Registrar. The parties shall leave with the Eegistrar, six days Depositing before the day fixed for the hearing, any maps, plans, plans', & c . time-tables, and special Acts or other documents referred to in the application, answer, reply, or other pleading, or which may be useful in explaining or supporting the same. The Hearing. 44. If the applicant does not appear at the time and Power of ,- ~ . Commis- place appointed for the hearing, the Commissioners may sioners to ,. proceed N 6 x partt. 180 RAILWAY AND CANAL COMMISSION. dismiss the application, and if the defendant does not appear at such time and place, and the Commissioners are satisfied that the notice of the hearing was duly served, they may hear and determine the application ex parte, and if at any adjournment of the hearing the parties or either of them do not appear, the Commissioners may decide the case in their absence. Evidence at the Hearing. To be cira 45. The witnesses at the hearing shall be examined ^certain* v ^ va voce > but * ne Commissioners may at any time, and cases, and whether before or at the hearing, for sufficient reason whether before or order that any particular facts may be proved by affidavit, hearing, or that the affidavit of any witness may be read at the hearing on such conditions as they may think reasonable, or that any witness, whose attendance ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a person to be ap- pointed by them for that purpose, provided that when it appears to the Commissioners that the other party bond Cross-ex- fide desires the production of a witness for cross-exami- amination . ._ , , . , , onaffidavit. nation, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. Depositions taken before a person authorised to take them may be read at the hearing without calling the deponents unless the Commissioners otherwise order. Commis- 46. The Commissioners may require further evidence sioners . . may to be given either viva voce, or by affidavit, or by de- further position taken before a person appointed by them for evidence. t h at purpose. Hearing to 47. The hearing of the case when once commenced shall proceed, so far as in the judgment of the Com- RULES OF PROCEDURE, 181 missioners may be practicable and convenient from day from day , to day. to day. View. 48. In any case in which, in the opinion of the Com- Power of . . . . i.ii. Commis- missioners, a view is necessary or desirable, it may be sioners to had by one or more Commissioners as they may direct. Judgment of Commissioners. 49. After hearing the case the Commissioners may Judgment dismiss the application, or make an order thereon in si on e mi favour of the defendants, or reserve their decision, or make such other order upon the application as may be warranted by the evidence, and may seem to them just. 50. The Commissioners may give their decision in May be in .. iii i i IT i writing writing, signed by them, and it may be sent or delivered a nd sent or to the respective parties, and it shall not be necessary to ^'the** hold a court merely for the purpose of giving such parties- decision. Costs. 51. Costs shall be taxed upon the order of the Com- Costs, how missioners under which they are payable, and such costs shall, if required, be taxed by the Kegistrar or such other person as the Commissioners may direct. Cf. sec. 19, p. 52, and note. [Alteration or Rescission of Orders. 52. Any application to the Commissioners to review Alteration , . . , , or rescis- and rescind or vary any decision or order previously s i on O f made by them, and not being a decision or order upon orders - an interlocutory application, nor under rule 14 of these rules, shall be made within 28 days after the said de- 182 RAILWAY AND CANAL COMMISSION. cision or order shall have been communicated to the parties unless the Commissioners think fit to enlarge the time for making such application. Application Any application to the Commissioners to review and or rescind rescind or vary any decision or order previously made by ers ' them upon an interlocutory application shall be made within four days after the said decision or order shall have been communicated to the parties, unless the Com- missioners think fit to enlarge the time for making such application. Every application under this rule shall be made by motion ; and no such motion shall be made without two clear days' previous notice in writing to the Registrar and to the parties affected thereby. Cf. sec. 18, p. 52. Interlocutory Applications. interiocu- 53. Where not otherwise provided for in these Rules, catfonT. ph ~ ft U interlocutory applications shall, unless otherwise specially ordered, be heard by the Registrar upon sum- mons duly served, and maybe determined in a summary way. Such application may, if the Registrar thinks fit, be adjourned, either before or at the time of hearing before him, into court for hearing before the Commis- sioners. Appeal Any person affected by any order or decision of the Registrar. Registrar in any matter involving questions of law may appeal therefrom to the ex officio Commissioner, and in any other matter to the Commissioners. Such appeal shall be by way of indorsement on the summons by the Registrar at the request of any party or by notice in writing to attend before the Commissioners without a fresh summons. Such notice shall be given to the Regis- RULES OF PROCEDURE. 183 trar and to the opposite party within four days after the decision complained of, or such further time as may be allowed by the Registrar or by the ex officio Commissioner, or the Commissioners. An appeal from the Registrar's decision shall be no stay of proceedings unless so ordered by the Registrar or by the ex officio Commissioner, or the Commissioners. Affidavits. 54. Affidavits shall be confined to such facts as the Affidavits, witness is able of his own knowledge to prove, except framed. on interlocutory proceedings, on which statements as to his belief with the grounds thereof may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents shall be paid by the party using or filing the same. 55. Any affidavit used in any proceeding before the Before Commissioners may be sworn as follows : sworn. In the United Kingdom before any of the said Com- missioners or the Registrar, or the officer appointed by the Commissioners to administer oaths in proceedings before them (and in these cases without the payment of any fee), or before a person authorized to administer oaths in any of the superior courts, or before a Commis- sioner empowered to take or receive affidavits, or before a justice of the peace for the county or place where it is sworn or made. In Scotland, in addition to the above-mentioned persons, before any sheriff-depute or his substitute or a justice of the peace. In any place in the British dominions out of the United Kingdom, before any court, judge, or justice of 184 RAILWAY AND CANAL COMMISSION. the peace, or any person authorized to administer oaths there in any court. In any place out of the British dominions, before a British minister, consul, or vice-consul. The Commissioners shall take judicial notice of the seal or signature, as the case may be, of any such court, judge, minister, consul, or vice-consul attached, appended, or subscribed to any such affidavit. Filing of, 56. Affidavits used in any proceedings before the office 8 " i Commissioners shall be filed in their office, and office copies of, C0 pi es o f the same and of other documents filed in their and of other office may be procured by the parties on application to documents. the Kegistrar. Computation of Time. Time, how 57. In all cases in which any particular number of days, not expressed to be clear days, is prescribed by the Kailway and Canal Traffic Acts, 1873 and 1888, or by these Rules, the same shall be reckoned exclusively of the first day and inclusively of the last day, unless the last day shall happen to fall on a Sunday, Christmas Day, or Good Friday, or a day appointed for a public fast or thanksgiving, in which case the time shall be reckoned exclusively of that day also. What days 58. The days between Thursday next before and the eluded*" Wednesday next after Easter Day, and the day appointed to be kept as the Queen's Birthday, and Whit Monday and Whit Tuesday, and Christmas Day, and the three following days, shall not be reckoned or inclu led in any proceedings under the Eailway and Canal Traffic Acts, 1873 and 1888. Pleadings 59. The time between the 12th day of August and the 24th day of October in England and Ireland, and in RULES OF PROCEDUEE. 185 Scotland between the 20th day of March and the 12th day of May, and between the 20th day of July and the 15th day of October, shall be reckoned in the computa- tion of the times appointed or allowed by these rules for filing, amending, or delivering, unless otherwise ordered. Registrar's Office, when open. 60. The Kegistrar's office shall be open daily from Registrar's 10 o'clock in the forenoon till 4 o'clock in the afternoon, ^henopen. or till such later time as the Commissioners may direct, except upon Saturday, when it shall be open from 10 o'clock in the forenoon till 2 o'clock in the afternoon, and except between the 12th day of August and the 24th day of October, when the office is to be open from 11 o'clock in the forenoon till 1 o'clock in the afternoon. The office shall be closed on the following days, namely, Good Friday, Easter Eve, Monday and Tuesday in Easter week, Christmas Day and the three following days, and the day appointed to be kept as the Queen's Birthday, and Whit Monday and Whit Tuesday. Sittings of the Court. 61. Every ex officio Commissioner shall be entitled to Vacations. the same vacations as are observed in the superior court of which he is a member. During the periods observed as vacations in the Superior Courts the Lord Chancellor in England, the Lord President of the Court of Session in Scotland, and the Lord Chancellor in Ireland, may appoint any Judge of a Superior Court to take the place and perform the whole functions of the ex ojfieio Com- missioner for these parts of the United Kingdom respec- tively, in case of the ex qfficio Commissioner being absent or temporarily unable to fulfil his duties. 186 HAIL WAY AND CANAL COMMISSION. Adjournment. Power of 62. The Commissioners may from time to time adjourn sioners to any proceedings before them. adjourn. Amendment. Power of 63. The Commissioners may at any stage of the pro- sionersTo ccedings allow any pleadings to be amended, or may amend. order to be struck out any matters which may tend to prejudice, embarrass, or delay the fair hearing of the case, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Formal Objections. Formal 64. No proceedings before the Commissioners shall be not to S defeated by any formal objection. prevail. Practice of Superior Courts, when applicable. Discretion 65. The general principles of practice in the superior courts may be adopted and applied at the discretion of expressly * * ne Commissioners to proceedings before them. Where, in any complaint or other proceeding before the Commissioners, the defendant has his domicile or principal place of business or head office in England, Domicile gucn proceedings shall be deemed to be proceedings danu. falling to be dealt with by the ex officio Commissioner for England, in so far as he is, by statute or any Rule of Court, charged with any duty in connexion therewith, and in like manner, where the defendant has his domicile or principal place of business or head office in Scotland or Ireland, the proceedings shall be dealt with by the ex officio Commissioners for Scotland and Ireland respectively. Where there are in any pro- ceedings more defendants than one having their domi- cile or principal place of business or head office in RULES OF PROCEDURE. 187 different parts of the United Kingdom, the Commissioners shall determine before which of the ex officio Commis- sioners such proceedings shall depend. Subject to this rule, if any question should arise Cf. defini- whether the Superior Court of England, Ireland or ('superior Scotland is the court with reference to which in the par- Co ^V p. 114. ticular case the expression " superior court " in any of the said rules is to be understood, the same shall be determined by the Commissioners, who shall make such order in that behalf as they shall think right under the circumstances, either with reference to the particular matter under consideration only or with reference to the future conduct of the proceedings in general, or any of them, or with reference to anything that has already been done. Provided that if any steps or proceedings have been taken under the practice of one superior Court, and the Commissioners shall think that the practice of any other superior Court ought to be applied, they shall make such order as shall, as far as practicable, and as is just under the circumstances, prevent the steps already taken from being rendered nugatory, and any expense already incurred from being thrown away. Enlargement or Abridgement of Time. 66. The Commissioners or the Registrar, subject to an Power to appeal to the Commissioners, may enlarge or abridge abridge r the time appointed by these rules, or fixed by any *' order, for doing any act or taking any proceeding upon such terms, if any, as the justice of the case may require, and any such enlargement may be ordered, although the application for the same is not made until after the expiration of the time appointed or allowed. Enlarging The time for delivering, amending, or filing any answer, NUMB! 188 RAILWAY AND CANAL COMMISSION. reply, or other pleading or document may be enlarged by consent in writing, without application to the Com- missioners. Such written consent shall be left with the Registrar at the time of filing the answer, reply, or other pleading or document. Transmission of Documents and Fees by Post. Docu- 67. "Where an applicant does not reside in London, ments, &c. ' i i * i n i sent by and he has no solicitor or agent there, all pleadings and documents required by these Eules to be sealed, filed in, or delivered at the Commissioners' office, may be sent by post, addressed to " The Eegistrar of the Court of the Railway and Canal Commission," and the fees payable (if any) in respect thereof may be sent by post, by post- office order, payable to " The Eegistrar of the Eailway and Canal Commission," to the Eegistrar, who shall cause stamps to be procured to the amount of such remittances, and such stamps to be obliterated. All letters, notices, or documents sent by post to the Officers of the Commission shall be prepaid. Table of Fees. What fees 68. The fees, a table whereof is in the Third Schedule taken. 6 hereunto annexed, may be demanded and taken in respect of the proceedings before the Commissioners. Signed the 22nd day of February, 1889. ALFRED WILLS. JOHN TRAYNER. JAMES MURPHY. F. PEEL. Approved W. PRICE. HALSBURY, C. M, HICKS-BEACH, President of the Board of Trade. ( 189 ) SCHEDULES TO EULES OF PROCEDURE. FIKST SCHEDULE. FORMS. No 1. Application. No. 2. Indorsement. No. 3. Indorsement required by Eule 4. No. 4. Answer. No. 5. Eeply. No. 6. Form of Subpoena ad testificandum. No. 7. Form of Subpoena duces tecum. No. 8. Notice required by Rule 11. No. 9. Form of Notice to the public required to be given by Railway Companies by Section 24 of Railway Clauses Act, 1863. The forms of proceedings contained in this Schedule may be used in the cases to which they are applicable, with such alterations as the circumstances of the case may render neces- sary, but any variance therefrom, not being in matter of substance, shall not affect their validity or regularity. No. 1. APPLICATION. In the Court of the Railway and Canal Commission. In the matter } A.B. states that of the application of A.R. ( i against [ ' The Company. I 2. And the said A.B. applies to the said Court under the 190 RAILWAY AND CANAL COMMISSION. above-mentioned Acts for an order enjoining the said Com- pany [here state concisely the nature of the application, as for example,'] to desist from giving any undue preference to them- selves or other persons in the carrying or in the collecting, carrying, and delivering, for themselves or other persons, of goods and parcels, or in their charges for the same over the said A.B. in the carrying of such goods and parcels for him, and enjoining the said Company not to subject him to any undue prejudice in respect thereof. Dated this day of 18 (Signed) A.B. or C.D. Solicitor for the Applicant. No. 2. Indorsement on Application. To the within named Company. You are hereby commanded by the Court of the Eailway and Canal Commission within 15 days from the service of the within application to put in your answer to the same, and take notice that in default of such answer being put in within such time or any extension thereof duly granted, the said Court may proceed to hear the said application ex parte. (Sealed.) [Indorsement.~\ The within application is made by A.B., of , (stating address and occupation, and if there be a solicitor in the matter) by C.D., of , (and if he be agent for the solicitor) as agent for E.F., of , solicitor for the said A.B., and was filed on the day of 18 No. 3. Indoi-sement required by Rule 4. To the within named Company. Take notice that the Court of the Eailway and Canal Com- SCHEDULES. (/.) 191 mission, having consented to the within-mentioned difference (or differences) being referred to it for its decision in lieu of being referred to arbitration, you are hereby commanded within days from the service upon you of the within statement to put in your answer to the same, and take notice, that in default of such answer being put in within such time, or any extension thereof duly granted, the said Court may proceed-to hear and determine the said difference ex parte. (Sealed.) No. 4. ANSWER. In the Court of the Railway and Canal Commission. The Company in answer to the Application of A.B. state that 1. 2. This Answer is made on behalf of the said Company by C.D. of , who is acquainted with the facts stated therein, day of 18 (Signed) In the matter of the application of A.B. against The Company. Dated this No. 5. EEPLY. In the Court of the Railway and Canal Commission. The said A.B. in reply to the answer of the said Company state that 1. 2. And the said A.B. admits that day of 18 (Signed) A.B. or C.D., Solicitor for the said Applicant. In the matter of the application of A.B. againut The Company. Dated this 192 RAILWAY AND CANAL COMMISSION. No. 6. SuBPffiNA AD TESTIFICANDUM. In the Court of the Eailway and Canal Commission. In the matter of the application of A.B., Applicant, against The Company, Defendant. Victoria, by the grace of God, &c., to [the names of three witnesses may be inserted], greeting. We command you to attend before the Railway and Canal Commissioners at , on day, the day of 18 , at the hour of in the noon, and so from day to day until the above application is tried, to give evidence on behalf of the applicant (or defendant). Witness, &c. No. 7. SUBPCENA DUCES TECUM. In the Court of the Eailway and Canal Commission. In the matter of the application of A.B., Applicant, against The Company, Defendant. Victoria, by the grace of God, &c., to [the names of three witnesses may be inserted] greeting. We command you to attend before the Eailway and Canal Commissioners at , on day, the day of 18 , at the hour of in the noon, and so from day to day until the above application is tried, to give evidence on behalf of the applicant (or defendant), and also to bring with you and produce at the aforesaid time and place [specify documents to be produced], Witness. SCHEDULES. (/.) 193 No. 8. NOTICE EEQUIRED BY RULE 11. The Railway and Canal Traffic Acts, 1873 and 1888. Notice is hereby given that it is the intention of the Railway Company and the Canal Company, subject to the sanction of the Railway and Canal Commissioners, to enter into an agreement for the following purposes, viz. (among other things), the and that a copy of the proposed agreement can be seen at the office of the Railway and Canal Commission at Dated this day of 18 Secretary to the (Solicitor or Agent) No. 9. FORM of NOTICE to be given to the PUBLIC by RAILWAY COM- PANIES of their intention to enter into agreements amongst themselves under PART III. of the RAILWAY CLAUSES ACT, 1863. Notice is hereby given pursuant to the provisions of the Railways Clauses Act, 1863, and the Railway and Canal Traffic Acts, 1873 and 1888, and the Act, 18 , that it is the intention of the Railway Company and the Railway Company to enter into an agreement for the following purposes, viz. (among other things), the and that any company or person aggrieved by such proposed agreement and desiring to object thereto, may bring such objection before the Railway and Canal Commissioners, by pending the same in writing, addressed to the Registrar to the Railway and Canal Commissioners at their office, at the o 194 RAILWAY AND CANAL COMMISSION. London, on or before the l day of , 18 , in which office a copy of the proposed agreement can be seen. Dated this day of 18 . Secretary to the (Solicitor or Agent) SECOND SCHEDULE. Cf. Rule 18. KULES 2, 3, 4, 5, 6, 7 of Order XXII. of the Eules of the Supreme Court, 1883, referred to in rule 18 of these rules. 2. Payment into court shall be signified in the defence, and the claim or cause of action in satisfaction of which such pay- ment is made shall be specified therein. 3. With a defence setting up a tender before action, the sum of money alleged to have been tendered must be brought into court. 4. If the defendant pays money into court before deliver- ing his defence, he shall serve upon the plaintiff a notice specifying both the fact that he has paid in such money, and also the claim or cause of action in respect of which such payment has been made. Such notice shall be in the Form No. 3 in Appendix B., with such variations as circumstances may require. [Form No. 3 referred to in the foregoing rule.] Heading as in Form. 2 Take notice that the defendant has paid into court Z., and says that that sum is enough to satisfy the plaintiff's claim [or the plaintiff's claim, for, &c.]. Z., defendant's solicitor. To Mr. X.Y., the plaintiff's solicitor. 1 Twenty-eight days should intervene between the date of the newspaper containing the first insertion of this notice and the date here inserted. See Schedule IV. 2 NOTE. In proceedings before the Commissioners the heading of this form will be the same as the heading of the forms in the First Schedule. SCHEDULES. (II.) 195 5. In the following cases of payment into court under this Order, viz. : (a.) When payment into court is made before delivery of defence ; (6.) When the liability of the defendant, in respect of the claim or cause of action in satisfaction of which the payment into court is made, is not denied in the defence ; (c.) When payment into court is made with a defence setting up a tender of the sum paid ; the money paid into court shall be paid out to the plaintiff on his request, or to his solicitor on the plaintiff's written autho- rity, unless the court or a judge shall otherwise order. 6. When the liability of the defendant in respect of the claim or cause of action, in satisfaction of which the payment into court has been made, is denied in the defence, the follow- ing rules shall apply : (a.) The plaintiff may accept in ^satisfaction of the claim or cause of action in respect of which the payment into court has been made, the sum so paid in, in which case he shall be entitled to have the money paid out to him as hereinafter provided, notwithstanding the defen- dant's denial of liability, whereupon all further proceed- ings, in respect of such claim or cause of action, except as to costs, shall be stayed ; or the plaintiff may refuse to accept the money in satisfaction and reply accordingly, in which case the money shall remain in court subject to the provisions hereinafter mentioned. (6.) If the plaintiff accept the money so paid in he bhall, after service of such notice in the Form No. 4 in Appendix B., as is in rule 7 mentioned, or after delivery of a reply accepting the money, be entitled to havu the money paid out to himself on request, or to his solicitor on the plaintiff's written authority, unless the court or judge shall otherwise order. (c.) If the plaintiff does not accept in satisfaction of the claim or cause of action in respect of which the pay- ment into court has been made, the sum so paid in, but proceeds with the action in respect of such claim or cause of action or any part thereof, the money nhall remain in court and bo subject to the order of the court or a judge, o 2 196 RAILWAY AND CANAL COMMISSION. and shall not be paid out of court except in pursuance of an order. If the plaintiff proceeds with the action in respect of such claim or cause of action, or any part thereof, and recovers less than the amount paid into court, the amount paid in shall be applied, so far as is necessary, in satisfaction of the plaintiff's claim, and the balance (if any) shall, under such order, be repaid to the defendant. If the defendant, succeeds in respect of such claim or cause of action, the whole amount shall, under such order, be repaid to him. 7. The plaintiff, when payment into court is made before delivery of defence, may within four days after the receipt of notice of such payment, or when such payment is first signi- fied in a defence, may, before reply, accept in satisfaction of the claim or cause of action in respect of which such payment has been made the sum so paid in, in which case he shall give notice to the defendant in the Form No. 4 in Appen- dix B., and shall be at liberty, in case the entire claim or cause of action is thereby satisfied, to tax his costs after the expiration of four days from the service of such notice, unless the court or a judge shall otherwise order, and, in case of non- payment of the costs within forty-eight hours after such taxation, to sign judgment for his costs so taxed. [Form No. 4 referred to in the foregoing rules 6 and 7.] Take notice that the plaintiff accepts the sum of I. paid by you into court in satisfaction of the claim in respect of which it is paid in. SCHEDULES. (III.) 197 THIRD SCHEDULE. TABLE OF FEES. Appointed by the Commissioners, with the concurrence of the Lord Chancellor and of the Treasury, to be taken in relation to the proceedings before the Commissioners. Keceiving and filing every application or statement of case, or answer thereto. s. d. 100 Receiving and filing every reply, affidavit, or other proceeding. 026 Note. No extra charge is to be made for documents that may accompany any application, answer, reply, or affidavit. Every summons upon interlocutory pro- ceedings. 050 Every order made thereon .. Attendance by counsel on interlocutory proceedings, each side. 026 10 Fees in ordinary cases. Every order for attendance of witnesses made at request of the parties, or either of them. 026 Every subpoena 026 Every hearing not in the nature of an inter- locutory proceeding, or of an arbitration. 100 Office copy of proceedings, per folio 006 Note. Copies of plans, sections, &c., to be paid for by the party re- quiring them according to the actual cost. 100 Fees on com- missions. Every commission to take evidence 198 RAILWAY AND CANAL COMMISSION. Every hearing in the nature of an arbitra- tion between railway companies or canal companies, or between railway companies and the Postmaster-General under the Regulation of Railways Acts, 1873 and 1874, or either of them, each day or part of a day. Every decision of such difference .. Every hearing in the nature of an arbitra- tion, one of the parties being other than a railway company or canal company, each day or part of a day. Every decision of such difference .. Note. The fee for the hearing is to be paid on each day by the party whose case is then being heard, unless the Commissioners other- wise order. s. d. 15 15 550 550 220 Fees on hearings in the nature of arbitra- tions. All fees shall be made by stamps impressed on the form s applicable to the various proceedings respectively, which shall be sold in London at the office of the Commissioners, West Front Committee Rooms, House of Lords, S. W. ; at the Inland Eevenue Office, Somerset House; and at the Branch Office, Eoyal Courts of Justice. In Edinburgh at the Inland Revenue Office, Waterloo Place. In Dublin at Inland Revenue Office, Custom House ; and at such other places as the Inland Revenue Department may determine. FOURTH SCHEDULE. DIRECTIONS of the Railway and Canal Commissioners relating to Working Agreements between two or more Railway Companies. 1. Care should be taken that at least 28 days from the date of the newspaper containing the first insertion of the notice to the public of the intention of the Companies to enter into a working agreement, are allowed for bringing objections before the Railway and Canal Commissioners, and that during SCHEDULES. (IV.} 199 the whole of that period a copy of the proposed working agreement is lodged at the Commissioners' office for inspec- tion. 2. At the expiration of the period specified in the notices for bringing objections before the Railway and Canal Com- missioners, and together with the application for their approval there should be sent to their office : a. The Act or Acts of Parliament authorising such agreement. 6. Copies of the newspapers containing the notices of the intention of the two companies to enter into such agreement which are required by the 24th section of the Kail way Clauses Act, 1863. c. Copies of the newspapers containing the advertise- ments of each Company, required by the 23rd section of the same Act, convening the special meetings at which the agreement was assented to. d. A copy of the circular which was addressed to each shareholder. e. The agreement, sealed by the Companies, together with a certificate given under the hands of the chairman at the meeting, and of the secretary, of each company, stating that such agreement was duly assented to by the required proportion of the votes of the shareholders and stockholders, entitled to vote in that behalf at meetings of the company, present (personally or by proxy) at a general meeting of each of the companies specially con- vened for that purpose, pursuant to the 23rd section of tbe same Act. 3. The application to the Commissioners for their approval should be made in the manner prescribed by their General Rules of January, 1889, Nos. 2 and 6. The agreement, when approved by the Commissioners, will be returned with their approval signified thereon, and the copy lodged at their office will be retained by them. NOTE. Where the Special Act or Acts authorising the Agree- ment do not incorporate the Railway Clauses Act, 1863, Part III., or are of an earlier date, the course of proceeding will be that indicated in the Special Acts. ( 201 ) INDEX. ABANDONMENT of canal .. .. .. ".. .. .. .. .. 104 " unnecessary " canal .. .. .. .. .. ib. "derelict" ib. warrant of .. .. .. .. -.. .. .. 105 when granted .. .. .. .. .. ib. under Bail way Acts .. .. .. .. 106 Board of Trade inquiries before authorising .. .. 107 certificate of Board of Trade .. .. .. .. .. 105 ACCOMMODATION : See STATION. ACT OF PARLIAMENT jurisdiction over special Acts .. .. .. .. .. 38 ACTION for breach of sect. 2 of Act of 1854, how lies .. .. 43 AFFIDAVIT: See RATING APPEAL. when available at hearing .. .. .. .. .. 180 what may be stated in .. .. .. .. .. 183 how sworn . . . . .. . . . . . . . . ib. filing of 184 copies .. .. .. .. .. .. .. .. ib. answering interrogatories .. .. .. .. .. 176 cross-examination on .. .. .. .. .. .. 180 in support of summons under rule 9 .. .. .. .. 164 AGENTS : See PARLIAMENTARY AGENTS. AGGRIEVED PERSONS : See COMPLAINTS. AGREEMENTS: See FACILITIES WORKING AGREEMENTS. to arbitrate .. .. .. .. . .. .. 46 to refer differences to Commissioners must be in writing .. 47 where, for special rates and charges .. .. .. .. 80 between railways and canals .. .. .. .. . - 128 AMENDMENT: See PLEADINGS. ANSWER : See PLEADINGS. 202 INDEX. PAGE APPEAL : See FACT LAW RATING 44,49 none to lie on question of fact .. .... .. 49 nor on locus standi of complainant .. , .. .. 49 lies to Court of Appeal .. .. .. .. .. ib. rules of superior Court to apply to .. .. .. .. ib. when appeal to House of Lords .. .. .. .. 50 costs of .. .. .. .. .. .. .. .. ib. from iuterlocutory orders .. .. .. .. .. 182 APPEAL, COURT OF : See APPEAL. costs in discretion of .. .. .. .. .. .. 49 what inferences may be drawn by .. .. .. .. 49 orders, may make .. .. .. .. .. ib. APPLICANTS FOB WORKS : See BOARD OF TRADE COM- MISSIONERS. APPLICATION: See COMPLAINT 160 how made .. .. .. .. .. .. .. ib. definition of .. .. .. .. .. .. .. ib. to include complaint .. .. .. .. .. .. ib. when by summons . . . . . . . . . . . . 164 filing 169 indorsement .. .. .. .. .. .. .. 170 service of .. .. .. .. .. .. .. ib. APPOINTED COMMISSIONERS : See COMMISSIONERS. APPORTIONMENT OF THROUGH RATE .. 69, 70, 75-76 under sect. 87 R. C. C. 1845 82 on canals . . . . . . . . . . . . . . 103 ARBITRATION 46 reference to Commissioners of difference under Act of 1873, sect. 8 .. .. .. .. .. .. .. ib. under Railway Arbitration Act, 1859 .. .. . ib. 47 46 48 123 when jurisdiction of Court ousted Board of Trade Arbitration Act, 1854 provisions of Act of 1873 1874 ATTACHMENT 36,37 AWARD : See ORDERS DAMAGES. BILL, Provisional Order embodying revised classification to be subject of .. .. .. .. .. .. .. 57 BOARD OF TRADE: See COMPLAINTS TO. certificates in case of complaints .. .. .. .. 33 as to complaints respecting canal traffic .. 199 may require security for costs . . . . . . . . 34 jurisdiction cow given additional to any previous .. 37, 111 INDEX. 203 BOARD OF TRADE continued. Arbitrations Act, 1859 48 1874 46 inquiries in case of complaints .. .. .. .. 86 bye-laws of canal companies, to approve .. .. .. 100 to vary . . . . . . ib. inspection of canals .. .. .. .. .. .. 101 to recommend appointed Commissioners .. .. .. 29 may apportion expenses between railway company and ap- plicant for works .. .. .. .. .. .. 48 proceedings as to revised classification .. .. .. 55 to publish new classification .. .. .. .. .. 58 rules by.. .. .. .. .. .. .. .. 91 as to classification and schedule .. .. 92,134 proceedings of . . . . . . . . . . . ..Ill BOOKS, RATE 87-9 BYE-LAWS of canal companies .. .. .. .. .. .. 99 Board of Trade to approve .. .. 100 CANAL 93 Part I. to apply to .. .. .. .. .. .. 54 11. as far as applicable .. .. .. .. .. 93 CANAL : See ABANDONMENT. what word to include .. .. .. .. .. . . ib. " management " of by railway company . . . . . . 98 returns by canal companies .. .. .. .. .. ib. stopping, iuteuded, of .. .. .. .. .. .. 99 original history of .. .. .. .. .. .. 94 bye-laws of .. .. .. .. .. .. .. 99 Acts of 1854 and 1H73 shall extend to person whose consent is necessary 'to vary tolls on .. 95 generally to .. .. .. .. .. .. ib. inspection of .. .. .. .. .. .. .. 101 bar and " compensation " tolls .. .. .. .. W> jurisdiction of Commissioners over tolls .. .. .. ib. where traffic controlled by railway company .. .. ib. application in respect of .. .. .. .. .. 167 traffic diverted from canal by railway company .. .. 97 Commissioners may adjust rates .. .. .. ib. if order of Commissioners not obeyed .. .. .. ib. interest in, misapplication of railway company's funds .. 101 through traffic on .. .. .. .. .. .. 102 abandonment of .. .. .. .. .. .. 105 provisions of Act of 1873 as to .. .. .. .. 128 Board of Trade rules as to classification of traffic on . . 144 CARRIERS when railway companies became .. .. .. .. 65 lines used by independent . . . . . . . . . . 66 when canal companies l>ecame .. .. .. .. C(l 204 INDEX. CENTRAL OFFICE: Sec. COMMISSIONERS. CERTIFICATE OF BOARD OF TRADE .. .. 33, 111 to be in force for twelve months . . . . . . . . 34 as to expenses of works .. .. .. .. .. 48 CERT10RARI: See ORDERS. CHAMBERS OF COMMERCE 33 CHARGES: See TOLLS RATES. unequal, when not illegal under R. C. C. Act .. .. 77 CHEAP TRAINS ACT, 1883 58 CLASSIFICATION OF TRAFFIC 55 revised, to be submitted to Board of Trade .. .. .. ib. within what time .. .. .. .. .. .. ib. together with schedule of rates and terminal charges . . ib. Board of Trade to deal with . . . . . . 55, 56 scheme to be embodied in provisional order . . . . 57 submitted to Parliament .. .. .. ib. confirmed by Bill .. .. .. .. .. .. ib. Act 58 proceedings of railway company after Act passed con- firming Bill .. .. .. .. .. .. ib. amending .. .. .. .. .. .. .. 58 difficulties of settling .. .. .. .. .. .. 60 table to be open for inspection . . . . . . . . 87 copies to be sold . . . . . . . . . . . . ib. rules as to, as regards railways .. .. .. ..134 canals .. .. .. .. .. 145 CLEARING SYSTEM, canal companies may establish .. .. .. .. 104 Railway Clearing Act to apply to canals . . . . . . ib. COMMISSIONERS, RAILWAY CANAL : See APPEAL ORDERS. appointment of .. .. .. .. .. .. 28,29 central office of, in London .. .. .. .. .. 30 ex officio appointment of .. .. .. .. .. .. 29 attendance of .. .. .. .. .. .. 31 not required to attend out of part of United Kingdom to which appointed .. .. .. .. .. 29 opinion on question of law to prevail .. .. .. 30 temporary may be appointed .. .. .. .. 31 to be judge of superior Court .. .. .. .. 29 vacations of .. .. .. .. ... .. 185 temporary absence of .. .. .. .. .. ib. jurisdiction : See JURISDICTION. liability of, for costs of appeal .. .. .. .. 49 Lord Chancellor may remove .. .. .. .. .. 29 may act notwithstanding vacancy in Court .. .. .. 28 not less than three to attend hearing of any case .. .. 30 INDEX. 205 COMMISSIONERS, RAILWAY CANAL continued. number of . . . . . . . . . . . . . . 28 powers of, as to canal traffic when controlled by railway company .. .. .. .. .. .. .. 96 salary of 29 sec. 5 of Act of 1873 to apply to sittings of, may be in any part of United Kingdom .. 30 adjournment of .. .. .. .. .. .. 187 temporary, may be appointed by Board of Trade .. .. 31 two may act .. .. .. .. .. .. ... 30 improvement: See IMPROVEMENT COMMISBIONEBS. transfer of pending business to .. .. .. .. 115 COMMISSIONEKS OF SUPPLY 33 COMMON PLEAS, procedure in Court of .. .. .. .. .. 14,36 jurisdiction of Court of .. .. .. .. .. 36 COMPANIES, KAILWAY : See FORWARDING COMPANIES. orders may be made on two or more .. .. .. .. 45 mutual arrangements .. .. .. .. .. .. ib. may submit scheme to Commissioners .. .. .. ib. expenses may be apportioned by Commissioners .. .. ib. order may not be made on two companies where no jurisdic- tion to order single company .. .. .. .. 46 working agreements between .. .. .. .. 40,41 where railway companies control canal traffic .. .. 96 what constitutes management of canal .. .. .. 98 misapplication of funds in acquiring unauthorized interest in canal .. .. .. .. .. .. .. .. 101 rating of .. .. .. .. .. .. .. 108 "COMPLAINT" included in application .. .. .. .. .. 161 COMPLAINTS by public authorities to Commissioners .. .. .. 33 harbour board .. .. .. .. .. .. ib. conservancy authority .. .. .. .. .. ib. councils .. .. .. .. .. .. .. ib. county representative body .. .. ib. justices in quarter sessions Metropolitan Board of Works urban sanitary authorities rural sanitary authorities .. associations of traders freighters . . chambers of commerce .. agriculture , ib. . ib. . ib. . ib. , ib. ib. ,7,.,::;, ib. dock companies .. .. .. .. .. .. 84 private docks .. .. .. .. .. .. 84A harbours .. .. .. .. .. .. .. ib. ports ib. 206 INDEX. COMPLAINTS continued. damages awarded on .. .. .. .. .. .. 43 how made .. .. .. .. .. .. .. 161 COMPLAINTS TO BOARD OP TRADE, any person may complain of unfair treatment .. .. 85, 86 Board of Trade may call upon railway company to explain ib. and to report to Parliament .. .. .. .. 86 CONSENT CASES 171 CONSERVANCY AUTHORITY definition of .. .. .. .. .. .. .. 113 CONTEMPT OF COURT 28,52 COSTS, in discretion of Commissioners .. .. .. .. 52 Board of Trade may require security for . . . . . . 34 on appeal .. .. .. .. .. .. .. 49 liability of Commissioners for, of appeal .. .. .. ib. taxation of .. .. .. .. .. .. 52,181 COUNCIL, common, of city of London .. .. .. .. .. 33 of a city .. .. .. .. .. .. .. ib. borough .. .. .. .. .. .. .. ib. county .. .. .. .. .. .. .. .. 35 of borough, definition of .. .. .. .. .. 114 COUNSEL may appear before Commission .. .. .. .. 110 COUNTY representative body .. .. .. .. .. .. 33 councils.. .. .. .. .. .. .. .. 35 COURT OF APPEAL : See APPEAL. COURT OF RAILWAY COMMISSIONERS shall have official seal .. .. .. .. .. .. 28 to be Court of Record .. .. .. .. .. .. ib. COURT OF THE RAILWAY AND CANAL COMMISSION, rules for procedure and practice in .. .. .. .. 155 sittings of .. .. .. .. .. 185 COURT OF RECORD : See RAILWAY AND CANAL COMMIS- SIONERS. contempt, may commit for .. .. .. .. 28 "COVERING" GOODS .. .. 67 CROSS-EXAMINATION on affidavit .. .. .. .. .. .. .. 180 INDEX. 207 PAGE DAMAGES, Commissioners' power to award in substitution for or in addition to other relief 42 how they may ascertain the amount of complaint in respect of, must be made within a year may include repayment of overcharges award of, shall be in satisfaction of claim to include overcharges when no damages to be awarded if rates duly published ib. ib. ib. ib. ib. 45 claim for, how made .. .. .. .. .. .. 168 DEFENDANT, who is .. .. .. .. .. .. .. .. 160 DERELICT CANAL : See ABANDONMENT. DISINTEGRATION OF RATES 88 DISCOVERY OF DOCUMENTS 175 DISCONTINUANCE, notice of .. .. ' .. .. .. .. .. 178 DIVISIONAL COURT, no appeal lay from .. .. .. .. .. .. 51 DOCK : See HARBOUR BOARD. companies may complain of undue preference .. .. 84 what is .. .. .. .. .. .. .. .. 85 complaints by private .. .. .. .. .. .. 84A DOCUMENTS, Commissioners may order production and inspection of 5 discovery of .. .. .. .. .. .. .. 175 production of .. .. .. .. .. .. .. 177 inspection of . . . . . . . . . . . . ib. ENFORCEMENT OF ORDER: See ORDERS. EQUALITY of treatment of persons and traffic .. .. .. .. 60 traffic .. .. ' .. .. .. 7!i EVIDENCE, on rating appeals .. .. .. .. .. .. 108 when by affidavit : See AFFIDAVIT. at hearing .. .. .. .. .. .. .. 180 EX OFFICIO COMMISSIONERS : See COMMISSION!) us. EXPENSES OF LOCAL AUTHORITIES Ill FACILITIES, reasonable, may be ordered notwithstanding agreements .. 40 uuless agreement confirmed .. .. .. .. //.. 208 INDEX. FACILITIES continued. no rule as to what are reasonable .. .. .. .. 41 to include through rates .. .. .. .. .. 67 charges in excess of powers, evidence of refusal of .. 42, 72 reasonable facilities, question of fact .. .. .. .. 50 Commissioners to consider if through rate is "reasonable facilities" .. .. .. .. .. .. .. 70 what are 72, et seq. where granted as inducement to use one railway .. .. 80 FACT, undue preference is .. .. .. .. .. .. 44 appeal on question of .. .. .. .. .. .. 49 reasonable facilities .. .. .. .. .. .. 50 FACTS, C. A. may draw inferences as to .. .. .. .. 49 but not inconsistent with facts found .. .. .. ib. FEES, TABLE OF 197 FORMS, for classification (railways) .. .. .. .. .. 139 advertisement (railways) .. .. .. .. .. 142 notice of objection (railways) .. .. .. .. .. 143 (like forms for canals) .. .. .. .. 150-4 ofpleading application .. .. .. .. .. .. 189 indorsement on .. .. .. .. .. 190 indorsement under rule 4 .. .. .. .. ib. answer .. .. .. .. .. .. .. 191 reply .. .. .. .. .. .. ., ib. subpoena ad test. .. .. .. .. .. .. 192 dwes tecum .. .. .. .. .. .. ib. notice required by rule 11 . . . . . . . . . . 193 working agreements . . . . . . . . . . ib. FORWARDING COMPANIES, where canal company is .. .. .. .. .. 95 FUNDS, misapplication of railway companies, in acquisition of interest in canal .. .. .. .. .. .. .. 101 GAZETTE: See LONDON GAZETTE. GRADIENTS 80 GROUP RATES 83 sanctioned by the Act .. .. .. .. .. .. ib. within what restrictions .. .. .. .. .. ib. existing.. .. .. .. .- .. .. .. ib. who may complain of .. .. .. .. .. .. ib. application in respect of .. .. .. .. .. 166 INDEX. 209 PAGE GUARDIANS OF THE UNION 35 HARBOUR, complaints by private .. .. .. .. .. .. 84A. HARBOUR BOARD 33 any harbour authority may complain of undue preference . . 84 could not apply under Act of 1873 .. .. , ., .. 85 definition of .. .. .. .. .. .. .. 113 HAULAGE, when incidental to conveyance .. .. 66 back .. .. .. .. .. .. .. .. ib. HEARING .1. 179 date of .. .. .. .. .. .. .. .. ib, when applicant does not appear .. .. .. .. 179 evidence at .. .. .. .. .. .. .. 180 maps, &c., to be deposited .. .. .. .. .. 179 " HOME," definition of, in relation to merchandise .. .. .. 113 HOUSE OF LORDS, appeal to .. .. .. .. .. .. .. 50 IMPROVEMENT COMMISSIONERS 35 INEQUALITY OF CHARGE, prim facie, ev. of undue preference .. .. .. .. 77 not illegal under R. C. C. Act .. .. .. .. ib. INJUNCTIONS: See ORDERS, INTKRIM INJUXCTIONS .. .. 43 INSPECTION, of classification tables .. .. .. .. .. .. 87 of canals .. .. .. .. .. .. .. 101 of rate books .. .. .. .. .. .. .. 163 INSPECTOR, powers of, under 34 & 35 Viet. c. 78 .. .. ..101 to apply in case of canals .. .. .. .. ib. INTENTION of railway company not material in case of undue preference 80 "INTERESTS OF THE PUBLIC" 77,82 INTERIM INJUNCTIONS, may be moved for at any stage of proceedings . . .. 175 notice of application for . . . . . . . . . . ib. ex-officio commissioner to grant .. .. .. .. ib. 210 INDEX. INTERLOCUTORY APPLICATION, time for varying, &c., order on .. .. .. .. 182 affidavit on ........ : ..... 183 when heard by registrar .. .. .. .. ..182 appeal from registrar .. .. .. .. .. ..183 INTERROGATORIES ............ 175 INVOICING .. .'. .. .. '.. ' .. .. 67 IRELAND: See LORD CHANCELLOR OP. JUDGE, appointment of additional, of High Court .. .. .. 32 JUDGMENT OF COMMISSIONERS .. .. .. ..181 JUNCTION, when working signals at, subject of special charge . . . . 66, 67 JURISDICTION, commissioners of . . . . . . . . . . . . 34, 36 " hear and determine " any question .. .. .. 34-5 of commissioners under Act of 1873 transferred to com- missioners .. .. .. .. .. .. 36 commissioners formerly had, in respect of special Act . , 37 private sidings .. .. .. .. .. 38 legality of tolls, &c. . . . . . . . . . . ib. damages, commissioners may award .. .. .. 42 See DAMAGES. witnesses, may compel attendance of . . . . . . 56 order production of documents .. .. .. .. 52 enforcing orders .. .. .. .. .. .. 39 reviewing .. .. .. .. .. .. .. 52 may apportion expenses .. .. .. .. .. 48 make orders on two or more companies .. .. 45 arbitration under Act of 1873 .. .. .. .. 46 may order rehearing .. .. .. .. .. 52 as to undue preference . . . . . . . . . . 77 as to canals .. .. .. .. .. .. 96 Court of Common Pleas, of .. .. .. .. .. 36 to be in addition to any previously vested in commissioners 111 under Act of 1873 ...... ...... 122 JUSTICES IN QUARTER SESSIONS ...... 33 LAW QUESTION OF : See FACT. commissioners to decide what is .. .. .. .. 30 opinion of ex-officio commissioner on, to prevail .. .. 30 undue preference of fact . . . . . . . . . . 44 reasonable facilities, question of fact.. .. .. .. 50 preliminary question of, raised in pleadings .. .. .. 174 INDEX. 211 LEASES of canals, by railway companies . . . . . . . . 102 LOCAL AUTHORITIES, expenses of . . . . . . . . . . . . . . Ill may enter in contract involving payment of expenses .. 112 in Ireland .. .. .. .. .. .. .. tb. complaints by .. . .. .. .. .. .. <. 33 LOCAL GOVERNMENT ACT, 1888 : -See COUNCILS .. 35 LOCUS STANDI of private docks, &c. .. .. .. .. .. .. 84x no appeal on question of . . . . . . . . . . 49 LONDON GAZETTE, Board of Trade to publish new classification in .. .. 58 LORD CHANCELLOR OF ENGLAND, may remove appointed commissioner for misconduct, &c. .. 29 to appoint ex-officio commissioner .. .. .. .. 29 LORD CHANCELLOR OF IRELAND to appoint ex-officio commissioner for Ireland .. .. 29 definition of ' .. .. 113 LORD PRESIDENT OF COURT OF SESSION to appoint ex-ofiicio commissioner for Scotland .. .. 29 MARSHALLING TRAFFIC 66 MERCHANDIZE, Act only deals with traffic .. .. .. .. .. 39 definition of .. .. .. .. .. .. .. 113. " same or similar " .. .. .. .. .. .. 76 home and foreign, to be equally treated .. .. .. 77 METROPOLITAN BOARD OF WORKS 33 MILEAGE RATES, through rate not to be fixed lower than authorised .. .. 71 must be mileage rate for line having same termini .. .. 74 report of committee on equal .. .. .. .. .. 20 MISAPPLICATION : See FUNDS. MOTION TO REVIEW ORDERS, &c. 181 NOTICE. written notice to be given for request for through rates .. 69 what such notice must state . . . . . . . . . . if>. as to rate books .. .. .. .. .. .. 88 of application under sect. 38 respecting canal traffic .. 97 to produce .. .. .. .. .. .. 178 admit .. .. .. .. .. .. .. '' of discontinuance .. .. .. .. .. .. ib. r 2 212 INDEX. OBJECTION TO THEOUGH RATE BY FORWARDING COMPANY .. .. 69 if none made . . . . . . . . . . . . . . 70 to apportionment of through rate . . . . . . . . ib. to classification of traffic .. .. .. .. 137,147 OBJECTIONS, FORMAL, not to prevail before Commissioners . . . . . . . . 186 OFFICERS, CLERKS, &c. . , 54 OFFICIAL SEAL OF RAILWAY COMPANY . . . . 28 to be judicially noticed . . . . . . . . . . ib. ORDERS : See PROVISIONAL OBDEB. Commissioners may now enforce their orders . . . . 44 formerly enforced by Queen's Bench . . . . . . 36 may be made on two or more companies . . . . . . 45 what may be made by C. A. . . . . . . . . . . 49 of Commissioners not to be restrained by prohibition . . 50 injunction .. ib. certiorari . . ib. Commissioners may review, rescind, or vary . . . . 52 may make, as to canal traffic . . . . 97 if not obeyed . . . . . . . . . . ib. application for rescission .. .. .. .. .. 181 OVERCHARGES : See DAMAGES. " PARISH," to have same meaning as in Highways Acts . . . . 48 PARLIAMENTARY AGENTS, may practice before commission . . . . . . . . 110 PASSENGERS, Act only deals with merchandize traffic . . . . . . 39 publication of fares . . . . . . . . . . . . 91 PAYMENT INTO COURT 1G8 rules as to . . . . . . . . . . . . . . 194 PENALTY, for failing to comply with provisions of section as to publi- cation of rate s : . . . . . . . . . . . 89 canal companies, when liable to . . . . . . . . 99 how recovered . . . . . . . . . . . . . . 108 PENDING BUSINESS 114 transfer of . . . . . . . . . . . . . . ib. PLEADING, application .. .. .. .. .. .. .. 161 to be in writing or printed .. .. .. .. ib. in case of a company to be signed by chairman, c shown .. .. .. .. .. .. .. "'' 214 INDEX. PRE FERE N C E continued. plea of undue preference in action by railway company for charges . . . . . . . . . . 43 undue preference question of fact onus of proof of, being legal . . . . . . . . 76 PREJUDICE: See UNDUE PREFERENCE. PROCEDURE OF COMMISSIONERS .. 28 rules as to .. .. .. .. .. .. 155 PROCEEDINGS: See PLEADINGS. how commenced .. .. .. .. .. ..160 suspension of .. .. .. .. .. .. .. 171 PROHIBITION, Commissioners not to be restrained by . . ... 37, 50 PROOF that unequal charges, &c., do not amount to undue pre- ference . . . . . . . . . . . . . . 76 PROVISIONAL' ORDER : See ABANDONMENT OF CANAL. agreed revised classification and schedule to be embodied in . 56 PUBLICATION : See RATES. of rates by railway company . . . . . . . . . . 88 under Act of 1873 .. ..127 QUARTER SESSIONS, justices in . . . . . . . . . . . . . . 33 QUESTION OF FACT : See FACT Law. RAILWAY AND CANAL COMMISSION . . . . . . 28 appointment of Commissioners . . . . . . . . il>. is court of record . . . . . . . . . . . . ib. jurisdiction of Court 'of Common Pleas vested in . . 36 vacancy, Commissioners may act notwithstanding vacancy in office .. .. .. .. .. .. .. ib. RAILWAY AND CANAL COMMISSIONERS: See COM- MISSIONERS. RAILWAY AND CANAL TRAFFIC ACT, 1854 .. .. 67 comparison of sect. 2 with R. C. C. Act, sect. 90 . . 78 sect. 2 formerly did not apply to sea traffic . . . . . . 83 sect. 2 119 RAILWAY AND CANAL TRAFFIC ACT, 1888 .. . . 27 construed with Act of 1873 73 short title of . . . . . . . . . . . . . . ib. RAILWAYS : See COMPANIES, originally simply a highway .. .. .. .. .. 62 not obliged to carry goods . . . . . . . . . . 63 rating of 108 INDEX. 215 MAI RAILWAYS CLAUSES CONSOLIDATION ACT, 1845, operation of . ,. . . . . . . . . . . . . 64 sect. 90 . .- 78 when not infringed . . . . . v . . . . . . 81 arrangements under sect. 87 and governed by sect. 88 are not within sect. 90 .. . . . . . . . . . . 82 sects. 87-90 , . . . 119 RATE, what to include when applied to canal . . . . . . 93 RATE BOOKS, damages not to be awarded if rates duly published in : See DAMAGES . . . . . . . . . . . . . . 44 provisions of Act of 1873, sect. 14, as to . . . . . . 45 what to state 89,90 provisions of Act of 1873, as to . . . . . . . . 127 inspection of .. .. .. .. .. .. 163 application in respect of .. .. . .. 164 RATES : See GROUP RATES TOLLS. revised schedule of .. .. .. .. .. .. 55 distinction between tolls and .. .. .. 5 how made up .. .. .. .. .. 66 mileage lates as applicable to terminals .. .. .. ib,. statement of to be furnished on application.. .. .. 88 what:statement of to include .. .. .. .. ib. for sea traffic .. .. .. .. ... .. .. 89 alteration of published rates .. ,. .. .. .. ib. when published at place other than station .. .. .. 91 publication of .. .. .. .. ... .. .. 127 RATING APPEAL, receipts or profits of railway may be verified by affidavit 108 or statutory declaration ib. deponent or declarant may be cross-examined ib. definition of .. .. .. .. .. .. .. 113 RATING OF RAILWAXS, principle of .. .. .. .. .. .. .. 108 rule as to be applied in .. .. .. .. .. 109 REASONABLE FACILITIES: See FACILITIES. REGISTRAR to hear interlocutory applications .. .. .. .. 182 office of.. .. ' 185 REGULATION OF RAILWAYS ACT, 1868, sect. 16 . . 121 REGULATION OF RAILWAYS ACT, 1873 .. 28,121 arbitration under .. .. .. .. 46 difference referred to commissioners .. .. .. ib. duration of .. .. 28 21(> INDEX. REGULATION OF RAILWAYS ACT, 1873 continued; returns under .. .. .. .. .. ... .. 86 publication of rates under ... .. .-. .. .. 88 sect. 15 (terminal charges) to apply to canals .. .. 95 rating appeals under .... .. .. .. .. 108 perpetuation of ' .. .. .. .. ib. sect. 5 to apply- to commissioners .. .. .. .. 29 REHEARING BY COMMISSION KHS 36, 52 REPEAL. Acts' repealed .'. .. .. .. .. .. 115-17 REPLY : See PLEADINGS. REPORTS by Board of Trade .. .. .. 86 RESCISSION : See ORDERS. RETURNS, by railways to be made annually ,. .. .. .. 86 as prescribed by Board of Trade .. .. .. .. 87 what to include .. .. .. .. .. ... ib. by canal companies .-. .. - .. .. ... .. 98 what to include . .. .. .. .. .. .. 99 REVISION: See WORKING AGREEMENT. CLASSIFICATION. RULES, as to appeal .. .. .. .. 49, .51 of procedure .. .. .. .. .. .: .. 53 of Board of Trade .. .. 91 as to canal traffic .. .. .. .. .. 97 of Court, definition of .. .. .. .. ..- 114 Board of Trade as to classification of tiaffic on railways and canals .. .; 134, 153 of procedure and practice in Court of Railway and Canal Commission .. .. .. ... .. .. . .. 156 RULES OF PROCEDURE IN RAILWAY COURT.. .. .154 summary .. .. .. .. .. .. .. 157 interpretation .. .. .. .. .. .. .. 160 " application " . . . . . . . . . . . . ib. "applicant" .. .. .. .. .. .. ib. "defendant" .. .. .. .. ib. " solicitor " . . . . . . . . . . . . ib. complaint included in ".application" .. .. .. .. ib. proceedings commenced by application : See PLEADING .. 161 suspension of .. . .. .. .. .. 171 consent cases .. .. .. .. .. .. .. 171 law, question of law : See PLEADING. preliminary meeting .. .. .. .. .. ..174 communication with parties .. .. .. .. 175 INDEX. 217 RULES OF PROCEDURE IN RAILWAY COURT continued. injunction, interim ... .. .. ... .. .. ib. discovery : See DISCOVERY. interrogatories : See INTERROGATORIES. production and inspection of documents : See PRODUCTION. notice to' produce .. .. .. . .. .. 178 admit.. .. .. .. .. .. .. ib. of discontinuance . . . . . . . , . . ib. witnesses .. .. ....'. .. .. '.. 178 hearing : See HEARING. evidence : See HEARING. view .. .. .. '.. .. .. .. .. 181 judgment .. ... .. ;. .. .. .. ib. . costs .. .. .. .. .. .. .. .. ib. alteration and rescission : See ORDERS. interlocutory applications .. .. .. .. .. 182 affidavits ., .. .. .. 183 computation of ime .. .. .. .. .. .. 184 enlargement .. .. .. .. .. .. .. 187 registrar's office .. .. .. .. .. .. 185 sittings of court .. .. .. .. .. .. 185 adjournment .. .. .. .. .. .. .. 186 objections .. .. .. .. .. .. .. ib. practice of court .. .. ... .. .. .. 186 RURAL SANITARY AUTHORITY 33 SALARIES of commis.-ioners .. .. .. .. .. .. 29 officers, clerks, &c. .. .. .. .. 54 SCHEDULE : See CLASSIFICATION. revised Sch. to be embodied in provisional order .. .. 56 rules as to .. .. .. .. .. .. .. 92 SCOTLAND : See LORD PRESIDENT OF COURT OF SKSSMN. SEA enactments as to undue preference extended to goods carried by 82 rate books .. .. .. .. .. .. .. 89 SEAL: See OFFICIAL SEAL. SECURITY: See COSTS. SERVICES, where unequal amount to undue preference .. .. .. "' SESSIONS : See QUARTEH SESSIONS. SHUNTING - < ;(; 218 INDEX. SIDINGS, PRIVATE, where provisions in special Act relating to .. .. .. 38 jurisdiction of commissioners in respect of .. .. .. 38 complaint to commissioners in respect .. ... .. 162 SIGNALS, when workingS. subject of special charge .. .. .. 66 returns of un !er, 3li & 37 Viet. c. 76 87 SITTINGS OF COMMISSIONERS : See COMMISSIONS. SOLICITORS may appear before commission .. .. .. .. 110 definition of .. .. .. .. .. .. .. 160 SPECIAL ACT commissioners formerly had not jurisdiction in respect of 37, 38 provisions relating to sidings .. .. .. .. .. 38 jurisdiction in respect of formerly in Board of Trade .. 38 complaint in respect of .. .. .. .. .-. 157 SPECIAL CASE, commissioners could formerly state .. .. .. ' .. 37 STATION accommodation of, when within duties incidental to duty of carrier .. .. .. '.. .. .. .. 66 what is, with regard tb publication of rate books . . . . 90 classification tables at .. .. .. ,. ... .. 87 STATUTORY POWERS OF RAILWAY COMPANY .. 67 STEAM VESSELS .. 71,83 railway company using, working, and maintaining.. . 75 sec. 16, Act of 1868 120 STOPPING intended S. of canal .. .. .. .. .. .. 99 SUBPCENAS 179 SUMMARY JURISDICTION ACTS, definition of .. '.. .. .. .. .. .. 114 SUMMONS on interlocutory application .. .. .. .. .. 182 SUPERIOR COURT, definition of 33,113 suspension of proceedings .. .. .. .. .. 171 practice of .. .. .. .. .. .. .. 186 TABLES, classification, to be open for inspection .. .. .. 87 INDEX. 219 PAGE TAXATION OF COSTS 52, 181 TEMPORARY COMMISSIONER : See COMMISSIONERS. TERMINAL CHARGES 3,55 how to be estimated .. .. .. .. .. 55,66 to be specially stated in revised schedule .. .. .. ib. and in account of rates .. .. .... .. 87 to be specified, sect. 33 .. .. .. .. .. 88 definition of .. .. .. .. .. .. .. 113 origin of .. .. .. .. .. .. .. 3,65 not to be calculated on mileage rate . . . . . . . . 66 by canals .. .. .. .. .. .. .. 95 under Act of 1873 .. .. .. 127 shunting .. .. .. .. .. .. .. 66 marshalling goods .. .. .. .. .. .. ib. covering .. .. .. .. .. .. .. 67 invoicing .. .. .. .. .. .. .. ib. unloading into depot .. .. ...' .. .. .. ib. THROUGH RATES .69,75 held question of fact . . . . . . . . . . . . 50 what included in term.. .. .. .. .. .. 69 to be granted on request of any person interested in through traffic .. ib. formerly only railway company could demand .. .. 72 objection to .. .'. .. .. .. .. ..69,70 apportionment of .. .. ;'. ' ;. 69, 70, 76, 85 when to come into operation .. .. /. 70 when company docs not grant .. .'.. .. .. 71 route proposed must be reasonable .. .. .. .. 74 method in which traffic will be worked .. .. .. 75 canal companies may agree for . . . . . . . . . 102 application for, how made .. .. .. .. .. 163 THROUGH TRAFFIC, provisions as to .. .. ..' .. .. ..67,75 on canals .. .. .. .. .. .. .. 102 TIME \\iihin which claim must be made fur damages .. .. 42 for submitting revised classification .. .. .. .. 55 for delivering answer .. .. .. .. .. ..172 reply .. .. .. .. .. .. ib. notice of application for interim injunction .. .. .. 175 enlargement of .. .. .. .. .. . 187 computation of .. .. .. .. .. .. 184 fixing date of hearing .. .. .. .. .. .. 179 for application to review, rescind, or vary order . . .. 181 TOLL : See COMMISSIONED. what is 5, 38 legality of 88 toll clauses limited by general clause .. .. .. 39 220 INDEX. TO LL con timted. difference between toll clauses and limiting charges clauses 39 canal .. .. .. .. .. .. .. .. 93. distinction between rate and . . .... . . . . 5 TOLLS, railways originally only toll takers .. .. .. .. 65 gross .. .. .. .. .. .. .. .. 72 unequal, when undue preference ' . . . . . . . . 76 " bar " and " compensation " tolls, what are . . . . . . 95 through tolls on canals .. .. .. .. .. 102 TRADE : See BOARD OF. TRADER .. .. 77 one not to be directly preferred to another .. .. .. 78 definition of .. .. .. .. .. .. .. 113 TRAFFIC : See CLASSIFICATION THROUGH TRAFFIC. Act only deals with merchandize .. .. .. .. 39 definition of in Act of 1854 .. .. .. .. .. 42 local .. ..' .75 difference in treatment of .. .. .. .. .. 76 where canal toll controlled by railway company .. .. % TREATMENT, diffe i ence in, of classes of traders or traffic .. .. .. 76 where unequal, justified .. .. .. .. ..81 UNDUE PREFERENCE: See PREFERENCE PREJUDICE TRAFFIC. when unequal charges made onus of proof on railway com- pany .. .. .. .. .. .. .. 76 what may be considered by commissioners .. .. .. ib. home and foreign merchandize .. .. .. .. 77 fair interest of railway company to be taken into account .. 78 each case of, depends on its own facts .. .. .. ib. definition of .. .. .. .. .. .. .. 113 intention of railway company immaterial .. .. .*. 79 where goods sent in quantities .. .. .. .. 80 where agreement for special charge .. .. .. .. ib. where facilities granted as inducement to use one railway .. ib. unequal charge justified .. .. .. .. .. 81 apportionment of through rate under R. C. C. Act, 1845, sect. 87 ' .; .. .. 82 goods carried by sea .. .. .. .. .. .. 82 group rates .. .. .. .. .. .. .. 84 " UNNECESSARY " CANAL : See ABANDONMENT. URBAN AUTHORITY 33 quarter sessions -borough is ..- .. .. .. .-. ->5 INDEX. 221 VACANCY IN OFFICE OF COMMISSIONERS : See COM- MISSIONERS .. .. .. .. .. .. .. 28 VACATIONS 185 VALUATION : See RATING OF RAILWAYS. VESSELS : See STEAM VESSELS. VESTRY, meaning of .. .. .. .. .. .. .. 48 VIEW 181 WAR, SECRETARY OF STATE FOR, EXEMPTED FROM OPERATION OF SECT. 24. WARRANT OF ABANDONMENT : See ABANDONMENT. WITNESSES, Commissioners may compel attendance of .. .. .. 52 by subpoena .. .. .. .. .. .. .. 178 WORKING AGREEMENTS must have sanction of Board of Trade under R. C. C. Act, 1863 .. .. 40 liable to revision .. .. .. .. .. .. ib. application in respect of, how made .. .. .. .. 163 directions of commissioners respecting . . . . . . 198 LONDON; PRINTED BY WILLIAM CLOWES AND SONS, LIHITED, STAMFORD STREET AND CHARING CROSS. WM. 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