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 THE 
 
 NEW LAW AND PRACTICE 
 
 OF 
 
 RAILWAY AND CANAL TRAFFIC. 
 
 BEING 
 
 THE RAILWAY AND CANAL TRAFFIC 
 ACT, 1888. 
 
 AND 
 
 THE RULES OF PROCEDURE IN THE COURT OF THE 
 RAILWAY AND CANAL COMMISSION. 
 
 WITH NOTES AND CASES. 
 
 BY ROBERT WOODFALL, 
 
 OP THK INNER TEMPLK, AND THE BOOTH WALES CIRCUIT, BAKKISTER-AT-LAW. 
 
 LONDON: 
 
 WILLIAM CLOWES AND SONS, LIMITED. 
 
 27, FLEET STREET. 
 
 1880.
 
 
 LONDON : 
 
 PRINTED BY WILLIAM CLOWES AND SONS, LIMITED, 
 8TAMFUUO STREET AKD C11AKIKO CKOSS.
 
 PREFACE. 
 
 THIS Work was prepared for press during the leisure of 
 the Long Vacation, 1888, but has been delayed in 
 publication pending the framing and issue of the Kules 
 of Procedure of the Railway Court. These are now 
 included in Appendix C, and referred to in the General 
 Index. It is hoped that the notes, cases cited, refer- 
 ences and index, will render this edition of the Act a 
 useful handbook to practitioners, and other persons 
 having business or interested in proceedings, in the 
 Court of the Railway and Canal Commission. 
 
 R. WOODFALL. 
 5 NEW COURT, CABET STREET, 
 February, 1889. 
 
 a 2
 
 TABLE OF CONTENTS. 
 
 FAOB 
 
 PREFACE .. .. .. .. .. .. .. .. in 
 
 TABLE OF CASES .. .. .. .. .. .. .. ix 
 
 TABLE OF STATUTES RELATING TO RAILWAYS .. .. .. xiii 
 
 TABLE OF STATUTES RELATING TO CANALS .. .. .. xv 
 
 INTRODUCTION .. .. .. .. .. .. .. l 
 
 RAILWAY AND CANAL TRAFFIC ACT, 1888 27 
 
 SECT. 
 
 1. Short title and construction of Act .. .. .. .. 27 
 
 PART I. COURT AND PROCEDURE OF RAILWAY AND CANAL 
 COMMISSIONERS. 
 
 Establishment of Railway and Canal Commission. 
 
 2. Establishment of new Railway and Canal Commission .. 28 
 
 3. Appointment and tenure of office of appointed Commissioners 29 
 
 4. Appointment and attendance of ex officio Commissioners .. ib. 
 
 5. Sittings of Commissioners .. .. .. .. .. 30 
 
 6. Appointment of additional judge .. .. .. .. 32 
 
 7. Provision for complaints by public authority in certain cases 33 
 
 Jurisdiction. 
 
 8. Jurisdiction of Railway Commissioners transferred to the 
 
 Commission .. .. .. .. .. .. .. 36 
 
 9. Jurisdiction of Commissioners under special Acts .. .. 37 
 
 10. Jurisdiction over tolls and rates .. .. .. .. 38 
 
 11. Jurisdiction to order traffic facilities, notwithstanding agree- 
 
 ments .. .. .. .. .. .. .. .. 40 
 
 12. Power to award damages .. .. .. .. .. 42 
 
 13. No damages where rates published under certain conditions 44 
 
 14. Orders on two or more companies .. .. .. .. 45 
 
 15. Amendment of 36 & 37 Viet. c. 48, s. 8, as to references to 
 
 arbitration under special Act .. .. .. .. 46 
 
 16. Power to apportion expenses between railway company and 
 
 applicants for works .. .. .. .. .. .. 48 
 
 Appeals. 
 
 17. Appeals on certain questions to superior court of appeal .. 49
 
 VI TABLE OF CONTENTS. 
 
 Supplemental. 
 
 SHOT. PAO 
 
 18. General powere and enforcement of orders .. .. .. 61 
 
 19. Costs 52 
 
 .20. Power to make rules .. .. .. .. .. .. 53 
 
 21. Appointment of officers, clerks, &c. .. .. .. .. 54 
 
 22. Salaries, expenses, &c.... .. .. .. .. .. *&. 
 
 23. Company to which this part of this Act applies . . . . ib. 
 
 PART II. TRAFFIC. 
 
 24. Revised classification of traffic and schedule of rates . . 55 
 
 25. Provisions as to through traffic .. .. .. .. 67 
 
 26. Powers of Commissioners as to through rates .. .. 75 
 
 27. Undue preference in case of unequal tolls, rates, and charges, 
 
 and unequal services performed .. .. .. .. 76 
 
 28. Extension of enactments as to undue preference to goods 
 
 carried by sea .. .. .. .. .. .. 82 
 
 29. Group rates to be chargeable by railway companies .. 83 
 
 30. Power to dock companies and harbour boards to complain 
 
 of undue preference . . . . . . . . . . . . 84 
 
 31. Complaints to Board of Trade of unreasonable charges by 
 
 railway companies .. .. .. ..' .. .. 85 
 
 32. Annual returns by railway companies to contain such sta- 
 
 tistics as the Board of Trade shall require .. .. .. 86 
 
 33. Classification table to be open for inspection. Copies to be 
 
 sold 87 
 
 34. Place of publication of rates in respect of traffic at places 
 
 other than stations .. .. .. .. .. .. 91 
 
 35. Power to make rules for purposes of this part of this Act .. ib. 
 
 PART III. CANALS. 
 
 36. Part II. to extend to canal companies ., .. .. 93 
 
 37. Application of 36 & 37 Viet. c. 48, to canals .. .. 95 
 
 38. Powers of Commissioners over canal tolls, rates, and charges 
 
 where a railway company or its officers own or control the 
 
 traffic of a canal . . . . . . . . . . 96 
 
 39. Returns by canal companies .. .. .. .. .. 98 
 
 40. Bye-laws of canal companies .. .. .. .. .. 99 
 
 41. Inspection of canals .. .. .. .. .. .. 101 
 
 42. Misapplication of a railway company's funds for acquisition 
 
 of unauthorised interest in canal .. .. .. .. ib. 
 
 43. Canal companies may agree for through tolls, &c. .. .. 102 
 
 44. Canal companies may establish clearing system .. .. 104 
 
 45. Abandonment of canal . . . . . . . . . . ib. 
 
 46. Definition of " canal company " .. .. .. .. 107
 
 TABLE OF CONTENTS. . vii 
 PART IV. MISCELLANEOUS. 
 
 SECT. PAQB 
 
 47. Perpetuation of 36 & 37 Viet. c. 48 108 
 
 48. Evidence on rating appeals .. .. .. .. .. ib. 
 
 49. Recovery and application of penalties .. .. .. 11Q 
 
 50. Parties may appear in person, by counsel, or by solicitors .. ib. 
 
 51. Parliamentary agents entitled to praqtise before Commis- 
 
 sioners .. .. .. .. .. .. .. t&. 
 
 52. Saving of powers conferred on Commissioners and Board of 
 
 Trade 1U 
 
 53. Proceedings of Board of Trade .. .. .. .. ib. 
 
 54. Expenses of local authorities .. .. .. .. .. ib. 
 
 55. Definitions .. .. .. .. .. ib. 
 
 56. Commencement of Act .. .. .. .. .. 114 
 
 57. Pending business .. .. .. .. .. .. 115 
 
 58. Transfer of pending business from superior courts .. .. ib. 
 
 59. Repeal and savings .. .. .. .. .. .. ib. 
 
 SCHEDULE .. .. .. .. .. .. .. 117 
 
 APPENDIX A. .. .. .. .. .. .. .. 118 
 
 Railway Clauses Consolidation Act, 1845, sects. 87-90 .. ib. 
 
 Railway and Canal Traffic Act, 1854 119 
 
 Railway and Canal Traffic Act, 1868, sect. 16 .. ..121 
 
 Regulation of Railways Act, 1873 . . . . . . ib. 
 
 APPENDIX B. 
 
 Board of Trade Rules with respect to classification of 
 
 traffic, &c., so far aa regards Kail ways .. .. .. 134 
 
 Board of Trade Rules with respect to classification of 
 
 traffic, &c., so far as regards Canals . . . * . . 144 
 
 APPENDIX C. 
 
 Rules of procedure in the Railway Court . . . . . . 155 
 
 INDEX 201
 
 TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 Aberdeen Commercial Co. v. G. N. of Sc. Ry. Co. .. 39, 42. 50, 72 
 Assessment Committee of the Altrincham Union v. The Cheshire 
 Lines Committee .. .. .. .. .. .. .. 109 
 
 ,Ayr Harbour Trustees v. Glasgow & S. W. Ry. Co. .. 73, 75, 85 
 
 B. 
 
 Baxendalev. fc. & S. W. Ry. Co. .. .. 79 
 
 i . v . G. W. Ry. Co.' 2 
 
 . v. Hadley .. .. .. .. .-. .. 44 
 
 Beadell v. Eastern Counties Ry. Co. .. .. - .. .. 74 
 
 Beeston Brewery Co. v. M. R. Ry. Co 38, 72, 77 
 
 Belfast Central Ry. Co. v. G. W. Ry. Co . . 75 
 
 : v. G. N. Ry. Co. (Ir.) 74 
 
 Berry v. L. C. & D. Ry. Co 53, 90 
 
 Birchgrove Steel Co. v. M. Ry. Co. * 91 
 
 Branley v. S. E. Ry. Co .. .. 83 
 
 Brown v. G. W. Ry. Co 38,39,42,62,72 
 
 Broughton v. G. W. Ry. Co. .. 80 
 
 C. 
 
 Cairns v. N. E. Ry. Co 90 
 
 Caledonian Ry. Co. v. Greenock and Wemyss Bay Ry. Co. . . 75 
 
 v. N. British Ry. Co .. 74, 76 
 
 Central Wales & Carm. Ju. Ry. Co. v. G. W. Ry. Co. .. 50,53 
 
 Central Wales Ry. Co. v. .G. W. Ry. Co 72, 73 
 
 Chatterly Iron Co. v. The North Staffordshire Ry. Co. 37, 39, 44, 66, 
 
 72 
 
 City of Dublin S. Packet Co. v. L. & N. W. Ry. Co 83 
 
 Clonmel Traders and Others v. The Waterford & Limerick Ry. Co. 
 
 53,90 
 
 Coleman v. G. E. Ry. Co 90 
 
 Cooper v. L. & S. W. Ry. Co. 81 
 
 v. Whittinghatn .. .. .. .. .. .. 53 
 
 Corp. of Huddersfield v.*G. N. Ry. Co 41 
 
 Coxon v. N. E. Ry. Co 53,67 
 
 D. 
 
 Denaby Main Collieries Co. v. M. S. & L. Ry. Co. 9, 10, 24, 43, 50, 
 
 60, 78, 81, 84 
 Dicks v. Yates
 
 X TABLE OF CASES. 
 
 PAGE 
 
 Diphws Casson Slate Co. v. Festiniog Ry. Co 50,78,80 
 
 Distiugton Iron Works v. L. & N. W. Ky. Co 37, 38 
 
 Dufaur v. Sigel .. .. .. .. .. .. .. 53 
 
 Dunkirk Colliery Co. v. M. S. & L. Ky. Co 66 
 
 E. 
 
 East & West Jn. Ky. Co. v. G. W. Ry. Co 74 
 
 Eastern & Mid. Co. Ry. Co. v. M. Ry. Co. .. .. 40,75 
 
 Evershed v. L. & N. W. Ry. Co 16, 43, 81 
 
 F. 
 
 Foreman v. G. E. Ry. Co 81 
 
 Foster v. G. W. Ry. Co 53,98 
 
 G. 
 
 G. E. Ry. Co. v. Overseers of Haughly 109 
 
 Garton v. Bristol & Exeter Ry. Co. " 62 
 
 Gidlow v. L. & Y. Ry. Co 43,63 
 
 Girardot v. M. Ry. Co ..80 
 
 , Flinn & Co. v. M. Ry. Co 38 
 
 G. W. Ry. Co. v. Bristol Port Ry. Co 72 
 
 v. Central Wales & 0. I. Ry. Co 47 
 
 v. Railway Commissioners .. .. .. .. 37 
 
 v. Railway Commissioners & Brown . . 42, 72 
 
 v. Severn & Wye Ry. Co. & the Midland Ry. Co. 74, 76 
 
 v. Button .. 9,77 
 
 v. Watei ford & Limerick Ry. Co. .. .. .. 47 
 
 Greenock & Wemyss Bay Ry. Co. v. Caledonian Ry. Co. 40, 73, 76, 83 
 
 Greenop v. S. E. Ry. Co 80 
 
 Guardians of the Poor of the Caistor Union v. M. S. & L. Ry. Co. 108 
 
 H. 
 
 Hadley v. Baxendale .. .. .. .. .. .. 44 
 
 Hall v. L. B. & S. C. Ry. Co. .. 4, 6, 15, 17, 37, 50, 51, 62, 63 
 
 Harborne Ry. Co. v. L. & M. W. Ry. Co. 90 
 
 Harris v. Cockermouth Ry. Co. .. .. .. .. .. 10 
 
 v. Cockermouth & Workington Ry. Co. .. .. 79, 80 
 
 v. L. & S. W. Ry. Co 41, 72 
 
 Hodgson v. Railway Passengers Ass. Co. .. .. .. .. 47 
 
 Holland v. Festiniog Ry. Co. 80 
 
 Holyhead Local Board v. L. & N. W. Ry. Co 72 
 
 Hozier v. C. Ry. Co. 77 
 
 Huddersfield, Corp. of, v. G. N. Ry. Co 41 
 
 Hull & Barnsley Ky. Co. v. Yorkshire and Derbyshire Coal & 
 Iron Co. .. ..82
 
 TABLE OF CASES. XI 
 
 I. 
 
 PAOB 
 
 I. of W. Newport Jn. Ry. Co. v. I. of W. By. Co. .. 53, 67 
 
 J. 
 
 Jones v. N. E. Ry. Co 90 
 
 L. 
 
 L. & N. W. Ry. Co. v. Evershed 43 
 
 v. G. W. Ry. Co. & Central Wales Ry. Co. 76 
 
 v. Price .. .. .. .. .. 67 
 
 v. Wigan Union .. .. .. .. 108 
 
 L. & Y. Ry. Co. v. Gidlow 43,63,66 
 
 v. Greenwood .. .. .. .. .. 43 
 
 Limerick & Kerry Ry. Co. v. Limerick Ry. Co. .. .. .. 47 
 
 Lloyd v. Northampton & Banbury Ry. Co. .. .. .. 84 
 
 Local Board of Newington v. N. E. Ry. Co. .. .. .. 72 
 
 Locke v. N. E. Ry. Co 67 
 
 Londonderry Port and Harbour Commissioners v. G. N. Ry. Co. 85 
 
 M. 
 
 Mid. Ry. Co. v. Ambergate Ry. Co. 4, 62 
 
 Mid. Gt. W. of Ir. Ry. Co. v. Dublin & Meath Ry. Co 40 
 
 Murray v. G. & S. W. Ry. Co 81 
 
 N. 
 
 Napier v. The G. & S. W. Ry. Co. 83 
 
 Neston Colliery Co. v. L. & N. W. Ry. Co 53,67 
 
 Newmarket Ry. Co. v. Cambridge Churchwardens .. .. 109 
 
 Newry & Armagh Ry. Co. v. Gt. N. of Ir. Ry. Co. .. .. 72 
 
 Nichol v. N. E. Ry. Co 41 
 
 Nicholson v. G. W. Ry. Co. 80 
 
 Nitshill and Lesmahagow Coal Co. v. Cal. Ry. Co. .. 38, 61, 80 
 
 North Central Wa?on Co. v. M. S. & L. Ry. Co 62 
 
 North and South Western Jn. Ry. Co. v. The Assessment Com- 
 mittee of the Brentford Union .. .. .. .. 109 
 
 0. 
 
 Oxladc v. N. E. Ry. Co 61,78,90 
 
 Painter v. L. B. & S. C. Ry. Co 74 
 
 Palmer v. L. h. & S. C. Ry. Co. 81, 82 
 
 v. L. & S. W. Ry. Co 10, 50, 78, 81 
 
 Parker v. G. W. Ry. Co 61 
 
 Parkinson w. G. W. Ry. Co 81,83 
 
 Pegler v. Monmouthshire Ry. Co. .. .. .. .. 62
 
 Xll TABLE OF .CASES. 
 
 Perkins v. L. & N. W. Ry. Co * 90 
 
 Portpatrick Ry. Co. v. The Caledonian Ry. Co. . . . . 37, 47, 48 
 Pryce v. Monmouth Canal Ry. Co 39,62 
 
 K. 
 
 Ransorae v. E. Co. Ry 61 
 
 Reg. v. G. W. Ry. Co 109 
 
 v. Lefroy .. .. .. .. .. .. .. 28 
 
 v. L. B. & S. Co. Ry. Co 109 
 
 v. The Midland Ry. Co. 
 Regent's Canal v. St. Pancras Union 
 Rhymney Iron Co. v. Rhymney Ry. Co. 
 Richardson v. M. Ry. Co. 
 
 Robertson v. M. & G. Ry. Co. lr. 
 
 a: 
 
 47 
 
 . 108 
 50, 80 
 61,84 
 
 90 
 
 S. 
 
 S. E. Ry. Co. v. Ry. Commissioners .. .. 37,41,51,72 
 
 Severn & Wye Ry. Co. v. G. W. Ry. Co. .. 72, 73, 74, 75, 76 
 
 Sirjiowy Ry. Co. v. L. & N. W. Ry. Co. 40 
 
 Skiuningrove Iron Co. v. N. E. Ry. Co. .. .. .. 77,79 
 
 Southsea & I. of W. Ferry Co. v. L. B. & S. C. Ry. Co 83 
 
 Stokes Bay Ry. & Pier Co. v. L. & S. W. Ry. Co 47 
 
 Strick v. Swansea Canal Co. . . . . . . . . . . 80 
 
 T. 
 
 Tharsis Sulphur Co. v. L. & N. W. Ry. Co 72 
 
 Thompson v. L. & N. W. Ry. Co 61,81 
 
 Toomer v. L. C. & D. Ry. Co 17, 46, 51 
 
 v. L. C. & D. Ry. & S. E. Ry 37 
 
 Torbay & Brixham Ry. Co. v. S. Devon Ry. Co. .. .. 47 
 
 u. 
 
 Uckfield Local Board v. L. B. & S. C. Ry. Co 38 
 
 W. 
 
 Warwick & Birm. Canal Nav. v. Proprietors of the Birm. Canal 
 
 Nav 73, 96 
 
 Watford & Rickmansworth Ry. Co. v. L. & N. W. Ry. Co. .. 47 
 Watkinson v. Wrexham Ry. Co. .. .. .. .. .. 50 
 
 v. Wrexham M. & C. Ry. Co. .. .. 62,72,90 
 
 West v. L. & N. W. Ry. Co 9 
 
 West Cork v. Hen Ry. Co 40 
 
 Wilson v. N. E. By. Co 86 
 
 Wilts, Somerset & Berks. Canal Traders Ass. v. G. W. Ry. Co. 98 
 Witt v. Corcoran .. .. .. .. .. .. .. 53 
 
 Wolverharapton & Walsall Ry. Co. v. L. & N. W. Ry. Co. .. 47 
 
 Y. 
 
 Young v. Gwendraeth Ry. Co. .. .. ,. .. .. 72
 
 TABLE OF GENEEAL STATUTES KELATING TO 
 EAILWAYS. 
 
 1 & 2 Viet. c. 98 . . (Conveyance of Mails.) 
 
 3 & 4 Viet. c. 97 . . (Returns of Tolls Levied.) 
 
 5 & 6 Viet. c. 55 . . (Powers of Board of Trade as to Railways Opening.) 
 
 5 & 6 Viet. c. 79 . . (Passenger duty.) 
 
 7 & 8 Viet, c 85 . . (Government Purchase and Revision of Tolls Cheap 
 
 Trains.) 
 
 8 Viet. c. 20 . . . (Railway Clauses Consolidation Act, 1845.) 
 
 9 & 10 Viet. c. 57 . (Regulation of Gauge.) 
 
 13 & 14 Viet. c. 13 . (Railway Abandonment.) 
 
 14 & 15 Viet. c. 64 . (Supersession of " Commissioners of Railways " by 
 
 Board of Trade.) 
 17 & 18 Viet. c. 31 . (Railway and Canal Traffic Act, 1854.) 
 
 21 & 22 Viet. c. 75 . (Charge for fractions of a Mile by Cheap Train.) 
 
 22 & 23 Viet. c. 59 . (Railway Companies Arbitration Act, 1859.) 
 
 26 & 27 Viet. c. 92 . (Railway Clauses Act, 1863.) 
 
 27 & 28 Viet. c. 120 . (Railway Companies Powers Act, 1864 ; Board of 
 
 Trade Certificate for Additional Powers.) 
 27 & 28 Viet. c. 121 . (Railways Construction Facilities Act, 1864.) 
 
 29 & 30 Viet. c. 108 . (Railway Companies Securities Act, 1866.) 
 
 30 & 31 Viet. c. 127 . (Railway Companies Act, 1867.) 
 
 31 & 32 Viet. c. 119 . (Regulation of Railways Act, 1868.) Obligations, 
 
 &c., as carriers. Sect. 14. Sea transit ; sect.- 15. 
 Publication of fares; sect, 16. Equality of treat- 
 ment where company works steamers; sect. 17. 
 Particulars of terminals; sect. 18. Charge when 
 two railways worked by one company. 
 
 32 fc 33 Viet. c. 114 . (Railway Abandonment.) 
 
 33 & 34 Viet. c. 19 . (Railways (Powers and Construction) Acts (1864) 
 
 Amendment Act, 1870.) 
 
 34 & 35 Viet. c. 78 . (Regulation of Railways Act, 1871 ; Inspection of 
 
 Railways and Returns of Accidents.) 
 
 35 & 36 Viet. c. 50 . (Railway Rolling Stock Protection Act, 1872.)
 
 STATUTES. 
 
 36 & 37 Viet. c. 48 . (Regulation of Railways Act, 1873.) Sect. 4. Ap- 
 pointment and duties of Railway Commissioners; 
 sect. 5. Disqualification of Commissioners by 
 holding railway stock, &c., Commissioners to give 
 whole time to duties; sect. 6. Jurisdiction of 
 Commissioners under Railway and Canal Traffic 
 Act, 1854; sect. 7. Explanation by companies 
 before formal proceedings ; sects. 8, 9. Arbitration ; 
 sect. 10. Steam vessels; sects. .11, 12. Through 
 rates ; sect. 13. Complaints by town council, &c. ; 
 sect. 14. Publication of rates; sect. 15. Terminals; 
 sect. 16. Agreement with canal companies; sect. 
 17. Maintenance of canals ; sects. 18, 20. Mails ; 
 sects. 21, 23. Assistant Commissioners and Asses- 
 sors, salary of Commissioners ; sects. 25, 26. 
 Powers of Commissioners over witnesses, &c., and 
 enforcement of orders appeal on question of law ; 
 sect. 27. Sittings; sect. 28. Costs; sect. 29. 
 General orders ; sects. 32-36. Fees, taxation of 
 costs, notices, &c., &c. 
 
 36 & 37 Viet. c. 76 . (Railway Regulation Act (Returns of Signal Arrange- 
 
 ments, Working, &c.), 1873.) 
 
 37 & 38 Viet. c. 40 . (Board of Trade (Arbitrations Act), 1874.) 
 
 38 & 39 Viet. c. 31 . (Protection of Rolling Stock from Execution.) 
 
 41 Viet. c. 20 . . (Railway Returns (Continuous Brakes) Act, 1878.) 
 
 42 & 43 Viet. c. 56 . (Continuance of Powers of Railway Commissioners.) 
 51 & 52 Viet. c. 25 . (Railway and Canal Traffic Act, 1888.)
 
 TABLE OF GENERAL STATUTES RELATING TO 
 CANALS. 
 
 3 & 4 Viet. c. 50 . . (Appointment of Constables on request of Company.) 
 
 8 & 9 Viet. c. 28 . . (Power to vary tolls.) 
 
 8 & 9 Viet. c. 42 . . (Power to act as carriers, and for two companies to 
 
 make traffic agreements with each other, amended 
 
 by 21 & 22 Viet. c. 75.) 
 
 10 & 11 Viet. c. 94 . (Power to raise money to act as carriers.) 
 40 & 41 Viet. c. 60 . (Canal Boats Act.) 
 51 & 52 Viet. c. 25 . (Railway Canal Traffic Act, 1888.) 
 
 And see also reference to Canals in the R. C. C. 
 
 Act, 1845 ; Railway and Canal Traffic Act, 1854 ; 
 
 and Regulation of Railways Act, 1873 (sects. 16 
 
 and 17).
 
 CORRIGENDA. 
 
 Page 1, line 6, for " the present year" read "1888." 
 43, 21, . "action" "section."
 
 INTBODUCTION. 
 
 ALTHOUGH the legislative history of railways and canals 
 an interesting and not incurious study may not be 
 within the scope of the present work, some review of the 
 state of things leading to the report of the Parliamentary 
 Committee of 1881-2, and the passing of the Kailway and 
 Canal Traffic Act of the present year, is necessary in 
 order to understand the intendment of that Act, and form 
 an opinion as to the construction which its enactments 
 will receive at the hands of the tribunal thereby created. 
 Very early in the history of railways the legislature 
 interfered to protect the public against an oppressive 
 exercise by the companies of the great powers conferred 
 upon them, and while the railway companies were en- 
 dowed, so to speak, with a lucrative monopoly of transit 
 on the one hand, the policy of the law was, on the other, 
 to prevent such a spread of the monopoly as would 
 diminish the opportunities of trade, and prevent a healthy 
 development of traffic. The task was not an easy one. 
 It is ever to be remembered that the railway system 
 which has done so much to build up the commercial 
 strength of the nation, is the product of private enterprise, 
 undertaken by individuals on faith of parliamentary 
 pledges, and, whilst committees have not definitely 
 recognised anything 1 "in the shape of vested interests" 
 
 Report of Committee of 1844.
 
 2 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 they have recommended that nothing should be done to 
 diminish " the integrity of privileges already granted to 
 companies" or which should militate against the just and 
 equitable dealing with railway property. 
 
 But whilst leaving the companies a free hand in. the 
 internal management of their own affairs, it was necessary 
 to prevent them cultivating their interests at the expense 
 of the general welfare. 
 
 The principle is well expressed by the late Lord Chief 
 Justice Cockburn when, speaking of the duties of rail- 
 way companies in regard of affording accommodation on 
 equal terms to the whole of the public, he said : " The 
 policy and justice of such a requirement are manifest ; it 
 being obvious that the powers of a railway company and 
 its monopoly, under the impossibility of all competition, 
 might otherwise be converted to a means of very grievous 
 oppression," . . . . " such being plainly the intention of 
 the legislature, and this Court having been constituted the 
 tribunal by which any injustice or inequality in the work- 
 ing of the railway system as between the companies and 
 the public is to be redressed, we must endeavour to 
 prevent any injustice either in the rate of charge or the 
 degree of accommodation afforded, at the same time that 
 we carefully avoid interfering, except where absolutely 
 necessary for the above purpose, with the ordinary rights 
 which (subject to the before-named qualification) a rail- 
 way company, in common with every other company or 
 individual, possesses of regulating and managing its own 
 affairs, either with regard to charges or accommodation, 
 or to the agreements and bargains it may make in its 
 particular business." 1 
 
 1 Baxendale v. O. W. Ry. Co., 5 C. B. (N.S.) 336.
 
 INTRODUCTION. 3 
 
 On the other hand, the railway companies had doubt- 
 less extended their operations beyond the scope originally 
 contemplated by both the special and general acts. It 
 was at first supposed that railway companies would be 
 merely toll-takers for the use of the travelling way they 
 provided, which should be a highway for the common use 
 of the public in the same sense as an ordinary highway 
 is so, and that means of transport and haulage power 
 would be supplied either by carriers or private individuals. 
 But very soon it was found that the public would be 
 better served if the management of the traffic was left in 
 the hands of the owners of the line, and Acts were passed 
 (to be presently noticed) enabling companies to act as 
 carriers, and to exact rates and tolls accordingly. Thus 
 there exists a wide distinction between the toll clauses 
 proper, and the limiting charges clauses. The former 
 ranging themselves under three heads, and being either 
 road tolls, carriage tolls, or haulage tolls. Companies, 
 then, might be : 1. Toll-takers and neither conveyers nor 
 carriers ; 2. Conveyers, but not carriers ; 3. Carriers ; and 
 the contention of traders upon this state of things has 
 been that the maximum legal charge should be less than 
 the aggregate of the three separate charges which might 
 respectively be made for the use of the railway, the use 
 of the carriages, and locomotive power. 
 
 Having become not only the owners of their line, but Terminals, 
 sole workers of the traffic upon it, the companies expended 
 large sums in the erection of stations, sidings, &c., and 
 in the machinery and accommodation necessary for 
 handling the traffic. 
 
 Thence arose the question as to how far companies 
 might charge for terminal services as services beyond 
 \\liidi tlic customer could demand as being 
 
 B 2
 
 4 HAIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 " incidental to conveyance," and covered by the mileage 
 rate. As early as 1853 we find Vice-Chancellor Turner 
 saying : l "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." 
 On the other hand, the following part of the judgment 
 of Sir F. Peel, in Hall v. L. S. and S. C. Ey. Co? is 
 instructive. 
 
 " The claim to a general station charge (buildings as 
 well as services) is based upon the view that tolls and 
 rates are payments for the same things, viz., use of a 
 company's railway and rolling stock, the payment being 
 denominated a rate where the carrier is a company, and 
 a toll where he is some other person. In that view, as a 
 toll does not pay for putting the trucks in a position to 
 be loaded, or for loading up goods, so neither would a 
 rate cover a company's expenses prior to the goods start- 
 ing on their course along a railway, and if a carrier 
 paying toll can charge for the expenses he has to meet 
 besides the toll, why should not a railway company also 
 be at liberty to charge for services which are rendered 
 over and above those for which the rate, in the sense it is 
 here taken in, is the payment. But even a carrier paying 
 tolls would not find it feasible to use a railway, unless 
 the railway had belonging to it sidings or places where 
 the trucks could stand to be loaded or unloaded, and still 
 less could a railway company carrying on its own railway 
 and charging rates receive goods brought to it for 
 carriage, unless there were fit and proper places for goods 
 to be deposited and handled. 
 
 1 M. Ry. Co. v. Ambergate Ry. Co., 10 Hare, 370. 
 
 2 Ueported in note in 15 Q. B. D. at p. 512.
 
 INTRODUCTION. 5 
 
 " A company, therefore, whether it takes tolls or rates, 
 cannot dispense with affording some amount of station 
 accommodation in return for taking a toll and a fortiori 
 a rate. But would rates, it is asked, have been fixed at less 
 than tolls, if it was intended that a company should do 
 even more in return for a rate than for a toll ? We think 
 there are good grounds why they should have been fixed 
 at less, and that rates and tolls are not at all alike in the 
 considerations which apply to them. A toll is for the Distinction 
 "case of a person carrying by railway as a private carrier tdu and 
 on his own account or for others, and who obtains his rates - 
 means of carrying by hiring from a railway company the 
 use of its railway and the use of its engines and carriages. 
 A rate is where a company itself conveys, and seeing the 
 obvious advantage and economy to a railway company of 
 being the railway carrier on its own line. Parliament may 
 well have judged it to be quite worth while for a railway 
 company to be content with taking a less sum per ton, 
 and giving a more ample service, in consideration of 
 securing practically the exclusive working of its own 
 line. And when giving power to a railway company to 
 charge as a carrier and imposing restrictions as to amount 
 to be charged, we think it more likely to have been the 
 purpose of Parliament that the whole of the power given 
 should be subject to restrictions than that part only." 
 
 In 1885 it was laid down that station accommodation 
 and use of sidings, weighing, checking, clerkage, &c., 
 appeared capable of falling under the definition of 
 " services incidental to the duty and business of a carrier " 
 and primd facie do so. Such services must be a question 
 of fact in each particular case, bearing in mind that 
 terminal services have no common measure with the 
 distance run. " Whatever is necessary for conveyance.
 
 6 It AIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 in the sense in which we have defined it being all 
 capable of being measured by reference to the distance 
 travelled is covered by the mileage rate. Whatever is 
 properly incidental, not to conveyance, but to the per- 
 formance of the duty and business of a carrier, and . . . 
 is actually performed and is done at a terminal station, 
 may be made the subject of a separate reasonable 
 charge." 1 
 
 Terminals appear to be of two distinct kinds, " station 
 terminals " and " handling terminals," the former refer- 
 ring merely to station accommodation and the latter to 
 the class of services embracing labour, and appliances 
 for loading and unloading, covering, collecting, and 
 delivering traffic. 2 
 
 The justice of allowing the companies remuneration 
 under the head of terminal charges beyond their mileage 
 rates was recognized by the committee of 1872, and power 
 was given to the Railway Commissioners to determine in 
 cases of dispute what was a reasonable sum to be charged 
 for terminals. "The committee of 1881-2 recommend 3 
 that " terminal " charges shall be recognized, but subject 
 to publication by the companies, and, in case of challenge, 
 to sanction by the railway commission. 4 It is clear that 
 the difficulty of fixing a maximum charge will be no easy 
 task obviously terminal charges can have no relation to 
 the mileage travelled, nor would the rule applicable, for 
 example, to some country station be properly applied to 
 the costly structure at St. Pancras. The committee of 
 1872 reported on the subject as follows : 
 
 1 Hall v. L. B. & S. C. Ey. Co., 15 Q. B. D. 535, per Wills, J. 
 
 2 Report 1881-2, p. iv. 
 
 3 Page xvi. 
 
 4 Section 24 carries out this, cf. definition of terminal charges, sec. 55.
 
 INTRODUCTION. 7 
 
 " But where it is a separate charge it seems obvious 
 that if the services thus charged for are as necessary and 
 as general as the actual carriage of the goods, there is 
 just as much reason for imposing a legal maximum in one 
 case as in the other. And such a maximum would no 
 doubt have been imposed in the earlier Acts, if it had 
 been foreseen that each company would do all the carry- 
 ing on its own line. Whether any such maximum should 
 be now imposed is a different question. Independently 
 of the question of vested interest in the companies, it is 
 to be observed that legal maximum rates affords little 
 real protection to the public, since they are always fixed 
 so high that it is, or becomes sooner or later, the interest 
 of the companies to carry at lower rates. The same thing 
 is true of terminal charges. The circumstances are so 
 various and so constantly changing that any legal 
 maxima which might now be fixed would probably be 
 above the charges now actually made, certainly far above 
 those which will hereafter be made. Indeed, attempts 
 made in 1861 and 1866 to fix a maximum for terminals 
 broke down, because the only maximum that could be 
 agreed upon was so much beyond the charge then actually 
 made to coal owners that the coal owners feared it would 
 lead to a rise in that charge." 
 
 If, in matters which affected vested interests and the 
 ir< >< 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 <J 
 1 11 s& 
 
 way companies of the aggregate in passengers and goods, c . 55 
 
 and a table of all tolls, rates, and charges It-vic'l mi c-iicli
 
 8 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 class, for the notice to the Board of Trade of the intended 
 opening of a railway, for the decision by that board of 
 through traffic disputes, and for the compliance with 
 Board of Trade requirements as to level crossings, bridges, 
 
 7 & 8 Viet. & c . Then, comes the Cheap Trains Act of 1844, pro- 
 
 c 85. 
 
 Sect 17 viding, amongst other things, that a contravention by a 
 company of their special Act might be dealt with by the 
 Board of Trade. 1 And power was given by the last- 
 named Act to the Treasury to revise the scale of tolls if, 
 within twenty-one years from the passing of the Act for 
 the construction of the railway the profits thereupon 
 should exceed 10 per cent. 
 
 Amalgamation and combination of railways with each 
 26 & 27 other was discouraged, and by the Kail way Clauses Act, 
 Part in., ' 1863, any working agreement must have the sanction of 
 ss. 22-29. ^ e g oar( j o f Trade, 2 and is even then subject to subse- 
 quent revision by the same authority. 
 
 Amongst the general statutes relating to railway traffic, 
 and without reference to which no question of railway 
 charges and management can be justly considered, are the 
 
 8 Viet. Railway Clauses Consolidation Act, 1845, the .Railway 
 1 ' 7 & ' 18 and Canal Traffic Act, 1854, the Regulation of Railways 
 Viet, c 31. Act, 1868, and the Regulation of Railways Act, 1873. 3 
 3i^& 32 rj^g first-named applies to every railway which shall 
 c. 119. thereafter be constructed, and is deemed to be incor- 
 vlct c 48 porated with any Act authorising the construction of a, 
 
 railway. Sects, 86-98, deal with the traffic carried on the 
 line, and the tolls and charges payable in respect thereof, 
 
 1 Cf, sect, 9 of the Apt of 1888, p. 37. The Railway Commissioners 
 have now jurisdiction in respect of special Acts. 
 
 2 Now Railway Commissioners by 36 & 37 Viet. c. 48, s. 10. 
 
 3 For sections of these Acts germane to the Act of 1888, see 
 Appendix A.
 
 INTE OD UCTION. 9 
 
 By sect. 86 the companies are empowered themselves 
 to employ locomotive power, and to convey passengers 
 and goods upon their railway, making such reasonable 
 charges therefore as shall not exceed the tolls authorised 
 by their special Act to be taken. 
 
 Companies are also empowered to contract with other 
 companies under restrictions (sects. 87, 88). Sect. 90, in 
 giving power to vary tolls so as to accommodate them to 
 the circumstances of the traffic, goes on to enunciate a 
 rule, which, whilst it has given rise to infinite litigation, 
 has ever received both legal and lay approval. 
 
 It is provided " that all such tolls be at all times 
 charged equally to all persons, and after the same rate 
 whether per ton per mile or otherwise, in respect of all 
 passengers, and of all goods and carriages of the same 
 description, and conveyed or propelled by a like carriage 
 or engine, passing only over the same portion of the line 
 of railway under the same circumstances." 1 And in 1868 Reg- of 
 provision was made for securing alike equality of treat- ISGS, s. 16. 
 ment where railway companies worked steam vessels. 
 
 Grievances appeared to multiply in spite of this Act, 
 and in 1854 was passed, as a result of Mr. Card well's com- Railway 
 mittee of the previous year, the Kail way and Canal Traffic Traffic Tct, 
 Act, 1854. One great object of this Act was to compel 1854- 
 the companies to act with impartiality to all persons 
 desirious of using the railway, and to secure that all 
 should be placed on equal terms. 3 "I do not think it 
 
 1 The portion of the section relating to equality of tolls applies only 
 to goods passing between the same points of departure and arrival, and 
 over no other portion of the line : see The Denaby Collieries Case, 
 1 1 App. Ca. 97. As to " goods of the same description," see O. W. 
 Ry. Co. v. Button, L. B. 4 H. L. 216. 
 
 2 Per Bovill, C.J., in West v. L. and N. W. Ry. Co., L. R. 5 C. P. 
 627.
 
 10 HAIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 was the intention of the legislature or its policy when 
 railways were constructed, that they should have the 
 power of making bargains with particular individuals so 
 as to give them advantages and subject others to corre- 
 sponding disadvantages." 1 
 
 Sect. 2. Sect. 2 may be construed as distributable into three 
 heads : 
 
 Firstly, making it imperative on railway companies 
 to afford all reasonable facilities to traffic using its railway : 
 
 Secondly, guarding such traffic from undue preference 
 or undue prejudice : 
 
 Thirdly, providing that through traffic, or traffic pass- 
 ing over the lines of two or more companies, shall be 
 carried in the same manner as far as possible as if one 
 company only was concerned in carrying it. 
 
 It will be observed that preference and prejudice were 
 not prohibited. To bring the companies giving the 
 former, and acting so as to occasion latter, within the 
 Act, the preference and prejudice must be " undue " and 
 " unreasonable." 2 
 
 " The legislature intended by the Kail way Traffic Act 
 to facilitate the transport that is the receiving, forward- 
 ing, and delivering of traffic; and for the purpose of 
 promoting such facility, gave to this court a discretionary 
 power over all the operations of railway companies relat- 
 ing to transport of traffic by issuing an injunction against 
 undue prejudice: and as the terms "undue prejudice" 
 are unlimited any operation may be within them." 3 
 
 1 Per Cockburn, L.C.J., Harris v. Cockermouth Ey. Co., 27 L. J. 
 C. P. 162. 
 
 2 The Denaby Collieries Case, 11 App. Gas. 97, and cases there cited, 
 and see note to sect. 27. 
 
 3 Per Erie, C.J., in Palmer v. L. and S. W. Ey. Co., L. K. 1 C. P. 
 593.
 
 INTRODUCTION. 11 
 
 This Act having continued in force for barely twenty 
 years, the trading community again complained so loudly 
 of their treatment by the railway companies, that a joint 
 committee of both houses was appointed to inquire and 
 report on the subject. It is worthy of note that the pro- 
 ceedings before this joint committee took place, and the 
 consequent Act was passed during a period of unequalled 
 commercial prosperity, which could not have been without 
 its influence on the evidence given on all hands. Founded 
 upon this report was passed the Kegulation of Railways Reg. of 
 Act, 1873. 1 Therein, after providing for reference of ^' 3 ct ' 
 differences, to which railway companies were parties to the 
 commissioners, and the transfer to them of certain powers 
 and duties of the Board of Trade, sect. 2 of the Act of 
 1854 is explained and amended 2 by declaring that the Sect. 11. 
 facilities mentioned in that section shall include the 
 receiving, forwarding, and delivery of traffic at through 
 rates, tolls, or fares, which provision is extended to rail- 
 way companies working steam vessels. 
 
 Sect. 14 provides for the publication of rates, but the 
 suggestion of the joint committee, that the existing 
 classification of goods should be remodelled and revised, 
 was ignored. Nor, as has been pointed out, would Parlia- 
 ment specifically recognise the legality of terminal 
 charges, though power was given to the commissioners to 
 hear and determine any question or dispute arising in 
 respect thereof. Some effort was made to secure the Sects. 10- 
 competition of canals, but, as results have shown, hardly <j a j, ; ,i s . 
 adequate for the purpose. 
 
 It will thus be seen that in these four Acts the legis- 
 lature imposes three direct restrictions on the companies. 
 
 1 For this Act, see Appendix A. 
 
 3 Sect. 11, repealed by the Act of 1888.
 
 12 KAIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 1. The charges shall be reasonable. 
 
 2. All reasonable facilities shall be given to traffic. 
 
 3. AH persons and traffic using the line shall, under 
 similar circumstances be charged equally, and no in- 
 dividual or class shall be unduly preferred or prejudiced. 
 Moreover, the companies are treated collectively, and as 
 one general system, and required to afford as a " reason- 
 able facility " a free interchange of traffic at through 
 rates. 
 
 Canals. Amongst the indirect means by which the executive 
 
 has exercised its control over railways is the encourage- 
 ment of canal competition. 
 
 As subsequently occurred in the case of railways, the 
 travelling way of canal companies was originally con- 
 structed under the supposition that it would be a common 
 highway for transit of passengers and goods, and it was 
 but gradually, and in pursuance of the policy already 
 pointed out, that the canal companies were enabled by 
 Parliament to become carriers and suppliers of locomotive 
 power. 1 But it was found that railways not only by force 
 of circumstances extinguished canal competition, but 
 even intentionally, in some instances absorbed the canals, 
 and acquiring, allowed them to fall into disrepair and 
 consequent disuse. 
 
 Act of The success of the Act of 1873, so far as it related 
 
 16 17. to canals, was, however, not encouraging ; but the blame 
 cannot be wholly thrown on the railway companies. The 
 present condition of canals, it cannot be doubted, is due 
 in some degree to original faulty construction, and varia- 
 tion in gauge. Nor can the most sanguine hopes ignore 
 the fact that a means of transit which is subject to 
 
 1 8 & 9 Viet. cc. 27 and 42.
 
 INTRODUCTION. 13 
 
 atmospheric hindrance, cannot seriously compete with 
 a means of transit not so embarrassed. 
 
 Cases also exist in which canals have been forced on 
 unwilling railway companies to the detriment of the 
 latter, yet notwithstanding the apparent inability of 
 canals to hold their own, owing to the altered conditions 
 of trade, we find the committee of 1881-2 thus reporting. 1 
 
 " Serious complaints have been made by traders and 
 canal companies against railway companies in respect to 
 the working of canals owned by them, or of which they 
 control the navigation. Cases have been adduced where 
 railway companies having acquired possession or control 
 of a canal have ceased to work it, or allowed it to fall 
 into disrepair, or charged excessive tolls, especially in 
 the case of through rates, and that in consequence traffic 
 is diverted to the railways, where higher rates are exacted, 
 to the injury of traders and the public generally. 
 
 " Your committee are of opinion that the complaints 
 are not unfounded. 
 
 "A railway company owning or controlling a canal 
 may think it profitable to lose the revenue of the canal in 
 the expectation of deriving a greater revenue from the 
 railway, to which it is a competition, and where the canal 
 forms part of a through competing route it is obviously 
 its interest, as a general rule, to discourage through 
 traffic. 
 
 " Transportation can frequently be effected more cheaply 
 by canal navigation than by railway, particularly where 
 the traffic consists of heavy goods of little value, or where 
 speed is not of importance. Your committee are there- 
 fore of opinion that it is impolitic that railway companies 
 
 1 Page xiii., and see Part III. of the Act of 1888.
 
 14 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 Railway 
 Courts. 
 
 That of 
 
 1847-53 
 
 abandoned, 
 
 Act of 
 1854 gave 
 jurisdic- 
 tion to 
 Court of 
 Common 
 Pleas. 
 
 Procedure 
 therein. 
 
 Railway 
 Commis- 
 sioners of 
 1873. 
 
 should have the control, either directly or indirectly, of 
 canal navigation; and that where canals are already 
 under the control of railway companies, Parliament should 
 endeavour to insure their use to the fullest possible 
 extent." 
 
 Acting on this recommendation, Parliament has made 
 in the present Act a fresh effort to galvanise into new 
 life the failing energies of canal companies. 1 
 
 Various tribunals have from time to time undertaken 
 the administration of the law relating to railways. We 
 find from 1847 to 1853 a railway commission consisting 
 entirely of laymen, but this was abandoned consensu 
 omnium as being a failure. The Act of 1854 conferred 
 jurisdiction on the Court of Common Pleas. But the 
 procedure adopted in that Court was not such as com- 
 mended itself to the companies. Application had to be 
 made on affidavits on motion for a rule nisi, then, if the 
 rule nisi was granted, it had to be made absolute. This 
 being done the matter was referred to the master for 
 further report, and on the report followed an argument. 
 Whether the machinery adopted to carry out the Act, or 
 the disinclination of the judges to undertake duties 
 theretofore not familiar to the Court, were the causes or 
 not, there is no doubt that, after eighteen years' trial the 
 need still asserted itself for a tribunal which should com- 
 mand the confidence of the public and the railway interest. 
 Then was erected the Court of the railway commissioners- 2 
 But, in spite of the able and careful decisions of that 
 Court there were some incidents which prevented com- 
 plete success. 
 
 It was invested with only a temporary character, it was 
 
 Cf., Part III. 
 
 36 & 37 Viet. c. 48, ss. 4-6.
 
 INTR OD UCTION. 1 5 
 
 deficient in powers to enforce its orders, and the right of 
 appeal therefrom was restricted. 1 
 
 Moreover, the committee of 1881-2 considered that it 
 was desirable that the railway commission should be 
 presided over by a judge of the High Court of Justice. 2 
 
 Having thus rapidly sketched the previous legal career 
 of railway and canal companies and the successes and 
 failures of the principal acts relating thereto, it is pro- 
 posed to summarise the latest attempt of the legislature 
 to continue the policy of control of a great monopoly, 
 and to adjust the somewhat strained relations existing 
 between the companies and the public on a footing of 
 justice to both. 
 
 The Kailway and Canal Traffic Act, 1888, deals only Railway 
 
 . . IT in nni ' Canal 
 
 with the subject ot merchandise traffic, and does not Traffic Act, 
 touch the questions of passenger traffic. It is divided lf 
 into four parts, of which the first deals with the recon- Part I. 
 struction and jurisdiction of the commissioners. The 
 Court is made a Court of Record (sect. 2), and shall 
 consist of two permanent " appointed " commissioners, 
 and three ex ojficio commissioners, who shall be judges of 
 a superior court, one for England, Scotland, and Ireland 
 respectively. The ex officio commissioner shall preside, 
 ami his opinion prevail on any question which "in the 
 opinion of the commissioners is a question of law." 
 
 The number of persons competent to make complaints Sect. 7. 
 is increased, associations of traders and freighters being in- 
 cluded, while certain authorities (ex gr. Borough councils) 
 
 1 Ex. gr. There was no appeal to the C. A. from a decision of a 
 Divisional Court on a special case stated by the commissioners under 
 sect. 26 of the Act of 1873 : Hall v. L. B. and S. C. Ry. Co., 17 
 Q. B. D. 230. 
 
 i;<-|K,rt 1881-2, p. xiv.
 
 16 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 are released from the necessity of procuring the certificate 
 Sect. 8. of the Board of Trade. The jurisdiction of the commis- 
 sioners is enlarged, the former jurisdiction of the railway 
 commission being transferred to them in addition to their 
 new powers. 
 
 Special Jurisdiction is given to the commission to hear and 
 
 determine complaints as to contravention by the com- 
 panies of their special Acts. Hitherto, as we have seen, 
 this jurisdiction was only in the Board of Trade, 1 and the 
 commissioners had no power to enforce the special Act 
 unless a contravention of the provisions therein contained 
 contravened also the general acts which they were 
 appointed to administer. 
 
 By sect. 11 jurisdiction is given to order traffic facilities, 
 notwithstanding agreements to the contrary entered into 
 by companies. 
 
 Damages. Sect. 12 effects a very important change, and one that 
 can hardly fail to be beneficial alike to companies and 
 to the public. In one proceeding the commissioners 
 may hear and determine a complaint, and award, either 
 in substitution for or in addition to other relief, damages 
 such as they find the applicant to have sustained. 
 Formerly, money paid in respect of overcharges could 
 not have been recovered in a proceeding under sect. 2 of 
 the Act of 1854, but must have been the subject of a 
 separate action, in the form of an action for money had 
 and received. 2 It is observable when dealing with this 
 point that, whilst giving the railway commission power 
 to inflict heavy damage on the railways, the legislature 
 has thought fit to curtail the right of appeal, although 
 it is true that no damages are to be awarded where the 
 
 1 7 & 8 Viet. c. 85, s. 17. 
 
 s Evershed's Case, 3 App. Gas. 44.
 
 INTRODUCTION. 17 
 
 rates complained of have been duly published in the rate- 
 books of the company, and moreover the complaint in 
 order to raise a claim to damages must be made within 
 one year from the discovery by the party aggrieved of 
 the matter complained of. 
 
 Power is given (sect. 14) to make order on two or more Orders on 
 companies compelling them to make mutual arrange- more F 
 ments to carry into effect an order .of the commissioners. c<mi P ames - 
 This will overrule the decision in Toomer v. L. C. & D. 
 Ey. Co. 1 A power is given to apportion expenses between 
 a railway company and applicants for works, and then 
 the Act passes on to deal with appeals. No appeal lies Appeals, 
 from the commissioners upon a question of fact, and it has 
 been pointed out that what is such a question is to depend 
 upon the opinion of a majority of the commissioners. 
 Considerable argument has arisen before the former rail- 
 way commissioners as to what were questions of fact and 
 of law (ex. gr. whether nitrate of soda was or was not a 
 word ejusdem generis with manure was held by the com- 
 missioners to be a question of fact), and it cannot be said 
 that in all cases their decisions were beyond doubt. If 
 any party was dissatisfied as to the legality of an order, 
 he could either move in the High Court for prohibition 
 to issue on the ground that the order was ultra vires the 
 jurisdiction of the commissioners, or, this ground not 
 existing, the commissioners, upon application, were com- 
 pelled in some cases, and might in others, 2 state a case 
 in writing for the opinion of a superior court. It has 
 been seen that this case was heard by a Divisional Court, 
 and no appeal lay therefrom to the Court of Appeal. 3 
 
 1 2 Ex. D. 460. 
 
 2 Cf., 36 & 37 Viet. c. 48, s. 20. 
 
 v. /.. /,'. ,i,,,l S. C. ////. (',,., ii
 
 18 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 Present Now the appeal lies from the commissioners to the Court 
 
 right of 
 
 appeal. of Appeal, and there the right of appeal stops unless the 
 decisions of any two Courts of Appeal in the kingdom 
 having differed in opinion, the Court of Appeal shall 
 give leave to carry the matter to the House of Lords. 
 The commissioners may review and rescind or vary any 
 order made by them, but their decisions shall not be 
 
 Costs. questioned by prohibition or injunction. Power is given 
 to the commission over costs as to taxation, and by 
 whom and to whom the same are to be paid. 
 
 Part n. Part II. deals with the question of traffic, and it is 
 
 Traffic. enacted l that so far as applicable the provisions therein 
 contained shall apply to canal companies. 
 
 Classifica- Sect. 24 deals with revised classification and schedule 
 
 traffic and of rates, and it is impossible either to exaggerate the im- 
 portance of the provisions therein, or to estimate the 
 effect of the economic changes involved. 
 Summarised the section provides 
 
 Effect of 1. Within six months from the passing of the Act every 
 railway company shall submit to the Board of Trade 
 A revised classification of merchandise traffic and a 
 revised schedule of maximum rates and charges 
 applicable thereto. 
 
 and shall state therein " the nature and amounts of all 
 terminal charges proposed to be authorised in respect of 
 each class of traffic, and the circumstances under which 
 such terminal charges are proposed to be made." 
 
 2. If any persons object to the proposed rates the 
 Board of Trade are to communicate with the objectors, 
 and endeavour to arrange matters between the railway 
 company and the objector. 
 
 1 Sect. 36.
 
 INTRODUCTION. 19 
 
 3. If the Board of Trade fail to bring about an agree- 
 ment, or if the companies neglect to comply with the re- 
 quirement of the section, they are themselves to prepare a 
 scheme containing what is, in their opinion, a fair classi- 
 fication of traffic and schedule of rates and charges. 
 
 4. In either case the JJoard of Trade is to submit to 
 Parliament (embodied in a provisional order) the scheme 
 arrived at, which after it has been before Parliament and 
 the public for one session shall (subject to the proceed- 
 ings next referred to) be ultimately confirmed by an 
 Act, and shall be the classification and schedule of the 
 railway company in place of its previously existing 
 classification rates and charges. 
 
 5. It will be seen that opportunity is given to the 
 companies to protest against any infringement of their 
 rights (a) whilst the scheme is passing through the 
 hands of the Board of Trade,, and (V) whilst before Parlia- 
 ment in the shape of a provisional order, when the matter 
 may be referred to a select committee, and contested as 
 in the case of a private bill. The section is somewhat 
 lengthy (containing thirteen sub-sections) and it may 
 be doubted, despite the free hand given to them, if the 
 
 Board of Trade will venture to construct a scheme of Classifica- 
 tion. 
 
 re-classification unless in accord with the railway com- 
 panies. It is true that uniformity of classification and 
 certainty of charge is highly desirable on every system, 
 but so long as competition exists there must be great 
 'liiliculty in fixing rates for goods on any simple or 
 uniform basis. For the purposes of the clearing house, 
 the railways have adopted a uniform classification, dis- 
 tinct from their special Acts, but framed so as to be 
 within the statutory maximum. Again, each year which 
 advances the discoveries of science, adds to the number 
 
 c 2
 
 20 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 of goods which only by construing their names with 
 words ejusdem generis can be brought into a specific class. 
 Moreover, the committee of 1881-2 l found as a fact " that 
 any practical inconvenience arising from complication or 
 uncertainty is avoided by the custom which prevails 
 among traders of applying by letter to the railway corn- 
 Rates panics for any information required as to rates." 2 The 
 basis on which rates are to be fixed gives rise, again, to 
 considerable difficulty. The committee of 1881-2, while 
 admitting that there appeared to be no general principle 
 or system for fixing rates, declared that any fixed standard 
 of rates would materially interfere with competition, 3 and 
 it is noticeable that while recommending an uniform 
 classification of goods, they do not recommend that rates 
 should be the subject of any fixed principle. Nor indeed 
 " Cost of is it easy to discover one. Cost of service is apparently 
 a reasonable basis, but to ascertain the relative cost and 
 profit of each description of traffic would be beyond the 
 functions of any government department or Court of law, 
 and even it is alleged beyond the powers of a railway 
 company. 
 "Equal Q ne fixed standard, often insisted on and as often 
 
 mileage 
 
 rates." condemned, is equal mileage rates. The joint com- 
 mittee of 1872 thus reported upon this contention : 
 " The form which the proposal for a fixed standard of 
 charges was usually taken is equal mileage, i.e., a charge 
 for each class of goods and passengers in proportion to 
 the distance for which they are carried. This point was 
 much urged before the Eoyal Commission, and is so 
 
 1 Report, p. vii. 
 
 2 The Board of Trade have issued rules to the companies in reference 
 to classification, for which see Appendix B. 
 
 3 Report, pp. ix. and x.
 
 INTRODUCTION. 21 
 
 effectually disposed of by their report that it seems 
 scarcely necessary to dwell upon it further. But it re- 
 appears in the evidence of some of the witnesses before 
 this committee, and it may therefore be desirable to state 
 shortly why it is impracticable : 
 
 " (a.) It would prevent railway companies from lower- 
 ing their fares and rates, so as to compete with 
 traffic by sea, by canal, or by a shorter or other- 
 wise cheaper railway, and would thus deprive 
 the public of the benefit of competition, and 
 the company of a legitimate source of profit. 
 " (&.) It would prevent railway companies from making 
 perfectly fair arrangements for carrying at a 
 lower rate than usual goods brought in larger 
 and constant quantities, or for carrying for 
 long distances at a lower rate than for short 
 distances. 
 
 " (c.) It would compel a company to carry for the same 
 rate over a line which has been very expensive 
 in construction, or which, from gradients or 
 otherwise, is very expensive in working, at the 
 same rate at which it carries over less expensive 
 lines. 
 
 " In short, to impose equal mileage on the companies 
 would be to deprive the public of the benefit of much of 
 the competition which now exists, or has existed, to raise 
 the charges on the public in many cases where the com- 
 panies now find it to their interest to lower them, and to 
 perpetuate monopolies in carriage, trade and manufacture 
 in favour of those rates and places which are nearest or 
 least expensive, where the varying charges of the com- 
 panies now create competition. And it will bo found 
 that the supporters of equal mileage, when pressed, often
 
 22 SAIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 really mean, not that the rates they pay themselves are 
 too high, but that the rates that others pay are too low. 
 
 " Pressed by these difficulties, the proposers of equal 
 mileage have admitted that there must be numerous 
 exceptions, e.g., where there is sea competition (i&., at 
 about three-fifths of the railway stations of the United 
 Kingdom), where low rates for long distances will bring 
 a profit, or where the article carried at low rates is a 
 necessary, such as coal. It is scarcely necessary to 
 observe that such exceptions as these, whilst inadequate 
 to meet all the various cases, destroy the value of ' equal 
 mileage ' as a principle, or the possibility of applying it 
 as a general rule." 1 
 
 Terminals. The question of terminal charges has already been 
 referred to. The present section fully recognizes the 
 equity of the railway companies' demands, but while 
 enacting that these charges shall be within a fixed 
 maximum, provides that " regard shall be had only to the 
 expenditure reasonably necessary to provide the accom- 
 modation in respect of which such charges are made, 
 irrespective of the outlay that may have been actually 
 incurred by the railway company in providing that 
 accommodation." One observation that arises upon this 
 provision is that it was not legally incumbent on the 
 companies to provide the costly goods termini of the 
 metropolis from which the public derive advantage. 
 
 Rates and Another is that it is difficult to see how the rates 
 allowed by any special Act, on the faith of which the 
 railway was constructed, can be now interfered with 
 without " diminishing the integrity of privileges already 
 granted to companies." 2 
 
 Sects. 25 and 26 deals with through traffic and enables 
 
 1 See Report of Committee, 1881-2, p, vi. 3 Of., p. 2,
 
 INTRODUCTION. 23 
 
 a demand for through rates to be made by " any person Through 
 interested in through traffic " provided such person has traffic - 
 first made complaint to the Board of Trade. 
 
 Sect. 27 relates to preferential rates and services Undue 
 
 r j j , ., . m , ,. preference. 
 
 charged and given by railway companies. The section 
 provides that inequalities of charges to different traders 
 and districts, and difference in treatment of merchan- 
 dise founded on the merchandise being British or 
 foreign, shall not be made. It has been pointed out 
 that the preference and prejudice must be " undue " to 
 be illegal, but the section throws upon railway companies 
 preferring or prejudicing any class of traders or traffic 
 the burden of proving that such preference or prejudice 
 in not "undue." In deciding this question the com- 
 missioners may take into consideration whether the 
 preferential rate is in the interest of the public. A 
 preference to be illegal must be unjust, and it is not 
 unjust so long as it is the natural result of fair competi- 
 tion, and so long as equal rates are given for like services 
 under like circumstances, and for like quantities of 
 merchandise. "It may be assumed that some of the 
 inequalities of charges complained of are to the advan- 
 tage, rather than to the disadvantage of the public." l 
 
 The enactments as to undue preference are extended 
 to goods carried by sea. 
 
 Group rates receive express sanction in sect. 29, Group 
 " provided that the distances shall not be unreasonable 
 and that the group rates charged, and the places grouped 
 together shall not be such as to create an undue pre- 
 ference," a provision which is but declaratory of the 
 existing law. 2 
 
 1 Report of Committee, 1881-2, p. xi. 
 * Sec The Denaby Main Collieries Case, 11 A pp. Gas. 91.
 
 24 SAIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 Complaint Power is given (sect. 30) to dock and harbour boards 
 boards, &c. * complain of undue preference shown to other docks 
 and harbours. General power is given to any person 
 " receiving or sending, or desiring to send goods by any 
 railway," and who considers himself the subject of " un- 
 fair or unreasonable" rate to complain to the Board 
 of Trade, and the latter may call on the company for 
 an explanation and endeavour to settle the matter 
 amicably. 
 
 Sects. 33 and 34 provide for the free inspection of the 
 classification table of merchandise at every station at 
 which merchandise is received for conveyance, or at the 
 station nearest the place at which such merchandise is 
 received, for the rendering of an account distinguishing 
 the terminal charges from the charge for the conveyance 
 of merchandise, and for the publication at stations of a 
 notice that the classification table is open to public 
 inspection. There can be no doubt that the system in 
 existence under sect. 14 of the Act of 1873 has not given 
 satisfaction, but it is not surprising that the rates books 
 hitherto kept by railway companies should fail in specifi- 
 cation of each class of goods, and the rate applicable 
 thereto, unless there can be devised a scheme for uniform 
 classification of merchandise and uniform rates. The 
 section referred to of the Act of 1873 is not repealed. 
 Under that section a " station " was held to be a place 
 from which a rate was charged. 
 
 Part in. Part III. of the Act amends the law relating to canals 
 Canals. so as ^o se cure the development and improvement of 
 canal traffic. The changes in the existing law comprise 
 extension to canals, tolls, and dues of the provisions 
 respecting rates contained in the Eailway Acts of 1854 
 and 1873. There is also given :
 
 INTRODUCTION. 25 
 
 Power to the commissioners to vary rates, and to order 
 through rates. 
 
 Power of inspection and supervision of bye-laws in the 
 Board of Trade. 
 
 Power to the canal companies to fix through rates 
 amongst themselves. 
 
 Extension to canal companies of the Railway Clearing 
 Act. 
 
 Power of abandonment of canal under supervision of 
 the Board of Trade. 
 
 The interference of railway companies with canals is 
 jealously watched. Sect. 38 enacts that where the traffic 
 on a canal is owned or controlled by a railway company 
 the commissioners may prevent such tolls, rates, and 
 charges being imposed as would tend to divert the traffic 
 from the canal to the railway to the detriment of the 
 former. Again, no railway company shall without express 
 statutory authority employ their funds in the acquisition 
 of an unauthorised interest in a canal. 
 
 A canal company must on or before the 1st of January Returns by 
 in each year send to the registrar of joint stock companies 
 a return, stating : 
 
 The name of the company. 
 Short description of canal. 
 Name of principal officer. 
 Principal office. 
 
 Moreover, the Board of Trade may require a return 
 setting forth the capacity of the canal for traffic and a 
 statement of the capital, revenue, &c., of the company. 
 
 Notice of the intended stopping of the canal, if the Notice of 
 stoppage is to extend for more than two days, must be " 
 given to the Board of Trade. 
 
 Part IV. provides amongst other things that railway
 
 26 SAIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 Part iv. companies may give evidence on rating appeals, that is 
 to say, appeals against any valuation list or against any 
 poor-rate or other local rate by affidavit verifying written 
 statements as to the receipts and profits of a railway. 
 In sect. 55 are contained definitions of "undue prefer- 
 ence," " terminal charges," and " merchandise," which 
 must receive careful study. 
 
 Such is a brief summary of an Act, which, though it 
 has not received a great amount of public notice, will be 
 far reaching in its results. It is the result of prolonged 
 and careful consideration. For a while railway companies 
 might be said to have stood upon their trial, indicted of 
 various offences by their customers, and it is satisfac- 
 tory to all to note the verdict. Although the trader's 
 grievances had an existence, the committee of 1881-2 
 acquitted the railway companies of " any grave derelic- 
 tion of their duty to the public," and found that, whilst 
 the rates for merchandise in force on the railways of the 
 United Kingdom were in the main considerably below 
 the maxima authorised by their special Acts for the 
 services rendered to the public, they compared favourably 
 in point of time with the State subsidised lines on the 
 continent. 1 It would be a bold venture to predict how 
 the Act will work. Some amendment will probably be 
 required, but in the main it is calculated " to enforce the 
 harmonious working and development of the present 
 railway and canal systems, so as to produce from them, 
 in the interests of the public, and at the same time of 
 the shareholders, the greatest amount of profitable work 
 which they are capable of doing." 2 
 
 1 Report, p. xv. 
 
 2 Report of Joint Committee, 1872, p. Hi,
 
 THE RAILWAY AND 
 CANAL TRAFFIC ACT, 1888, 
 
 51 & 52 VICT. c. 25. 
 
 An Act for the letter Regulation of Railway and Canal 
 Traffic, and far other purposes. 
 
 [10th August, 1888.] 
 
 BE it enacted by the Queen's most Excellent Majesty, 
 by and with the advice and consent of the Lords Spiritual 
 and Temporal, and Commons, in this present Parliament 
 assembled, and by the authority of the same, as follows : 
 
 1. This Act may be cited as the Kailway and Canal Short title. 
 Traffic Act, 1888 (a). 
 
 This Act shall be construed as one with the Regula- 
 tion of Railways Act, 1873 (I), and the Acts amending 
 it (c) ; and those Acts and this Act may be cited together 
 as the Railway and Canal Traffic Acts, 1873 and 1887. 
 
 (a) The title is identical with the Act of 1854. Tho 
 commencement of the Act is the 1st January, 1889 (sec 
 sect. 56). 
 
 (6) For sections of the Act of 1873, by this Act repealed, 
 BOO sect. 59 and schedule, p. 117. 
 
 (c) 37 & 38 Viet. c. 40.
 
 28 RAILWAY AND CANAL 1RAFFIC ACT, 1888. 
 
 PART I. COURT AND PROCEDURE OF EAILWAY AND 
 CANAL COMMISSIONERS. 
 
 Establishment of Eailway and Canal Commission. 
 
 Establish- 2. On the expiration of the provisions of the Eegula- 
 newRan- tion of Railways Act, 1873 (a), with respect to the Corn- 
 way and missioners therein mentioned, there shall be established 
 
 Canal 
 
 Commis- a new Commission, styled the Eailway and Canal Com- 
 mission (6) (in this Act referred to as the Commissioners), 
 and consisting of two appointed and three ex officio 
 Commissioners ; and such Commission shall be a Court 
 of Eecord (c), and have an official seal, which shall be 
 judicially noticed. The Commissioners may act not- 
 withstanding any vacancy in their body (d). 
 
 (a) The Act of 1873 was (see sect. 37 thereof) to continue 
 in force for a period of five years. This was extended to the 
 31st December, 1882, by 42 & 43 Viet. c. 56, s. 2, and thence- 
 forward by Expiry Laws Continuance Acts, the last of which 
 is 50 & 51 Viet. c. 63. This last Act continues till 31st 
 December 1888, the Railway Act, 1873, and Part II. of the 
 Eailway (Amending) Act, 1874 (37 & 38 Viet. ss. 6, 7, 8, 
 providing for " Reference to Railway Commissioners.") 
 
 (6) Sect. 4 of the Act of 1873 is repealed. Therein the 
 Commissioners were styled " the Railway Commissioners " 
 appointed " for the purpose of carrying into effect the pro- 
 visions of the Railway and Canal Traffic Act, 1854, and of 
 this Act." Three Commissioners were by that section ap- 
 pointed, " and not more than two assistant Commissioners." 
 The present Act dispenses with assistant Commissioners. 
 
 (c) All Courts of Record have power to fine and imprison 
 for any contempt committed in the face of the Court. 1 Cf, 
 Beet. 18. 
 
 (d) See sect. 5, sub-sect. (7), p. 31. 
 
 The ueen v. Lefroy, L. K. 8 Q. B. 137. Cf. s. 18 (1), p. 51.
 
 APPOINTMENT OF COMMISSIONERS. 29 
 
 3. (1.) The two appointed Commissioners may be Appoint- 
 appointed by her Majesty at any time after the passing 
 
 of this Act, and from time to time as vacancies occur (a). office of 
 
 appointed 
 
 (2.) They shall be appointed on the recommendation Commis- 
 of the President of the Board of Trade, and one of them 8 " 
 shall be of experience in railway business. 
 
 (3.) Section 5 of the Regulation of Railways Act, 
 1873, shall apply to each appointed Commissioner (&). 
 
 (4.) There shall be paid to each appointed Commis- 
 sioner such salary not exceeding three thousand pounds 
 a year as the President of the Board of Trade may, with 
 the concurrence of the Treasury, determine. 
 
 (5.) It shall be lawful for the Lord Chancellor, if he 
 think fit, to remove for inability or misbehaviour any 
 appointed Commissioner (c). 
 
 (a) The control of these appointments is a new provision, 
 see sect. 5, sub-sect. 7. 
 
 (6) Prohibits the "appointed" Commissioners being in- 
 terested for their own benefit in Eailway or Canal Stock. 
 
 (c) As in sect. 4 of the Act of 1873. 
 
 4. (1.) Of the three ex offieio Commissioners of the Appoint- 
 Railway and Canal Commission one shall be nominated 
 for England, one for Scotland, and one for Ireland ; and 
 an ex officio Commissioner shall not be required to attend 
 out of the part of the United Kingdom for which he is 
 nominated. 
 
 (2.) The ex officio Commissioner in each case shall be 
 such Judge of a superior Court as 
 
 (a.) in England the Lord Chancellor ; and 
 
 (6.) in Scotland the Lord President of the Court of 
 Session ; and 
 
 (c.) in Ireland the Lord Chancellor of Ireland ; 
 may from time to time by writing under his hand assign,
 
 30 It AIL WAT 2ND CANAL TRAFFIC ACT, 1888. 
 
 and such assignment shall be made for a period of not 
 less than five years (a). 
 
 (3.) For the purpose of the attendance of the ex officio 
 Commissioners, regulations shall be made from time to 
 time by the Lord Chancellor, the Lord President of the 
 Court of Session, and the Lord Chancellor of Ireland 
 respectively, in communication with the ex officio Com- 
 missioners for England, Scotland, or Ireland, as the case 
 may be, as to the arrangements for securing their atten- 
 dance, as to the times and place of sitting in each case, 
 and otherwise for the convenient and speedy hearing 
 thereof (6). 
 
 (a) The constitution of the tribunal is materially altered. 
 In place of three Commissioners and two assistant Commis- 
 sioners (sect. 4, Act 1873) there will be but two " appointed " 
 Commissioners, presided over by a Judge of the High Court 
 of Justice. Applicants in the Railway Court will no doubt 
 benefit materially by the head of the tribunal having the 
 legal status of a Judge. 
 
 (6) The Bill as originally framed continued sub-sect. (3), 
 as follows : " Such regulations may provide for the attendance 
 at any case of any other Judge, either at the assizes or otherwise, 
 where it maybe convenient to the parties that the case should be so 
 heard or where the ex officio Judge is unable to sit and hear the 
 same, or there is no ex officio Judge for the time being assigned, 
 and such Judge shall for the purpose of such case be an ex officio 
 Commissioner" 
 
 Sittings of 5. (1.) Subject to the provisions of this Act, and to 
 sioners. general rules under this Act, the Commissioners may 
 hold sittings in any part of the United Kingdom, in such 
 place or places as may be most convenient for the deter- 
 mination of proceedings before them. 
 
 (2.) The central office of the Commissioners shall be in 
 London, and the Commissioners when holding a public 
 sitting in London shall hold the same at the Royal
 
 SITTINGS OF COMMISSIONERS. 31 
 
 Courts of Justice, or at such other place as the Lord 
 Chancellor may from time to time appoint. 
 
 (3.) Not less than three Commissioners shall attend at 
 the hearing of any case, and the ex ojficio Commissioner 
 shall preside, and his opinion upon any question which 
 in the opinion of the Commissioners is a question of law 
 shall prevail (a). 
 
 (4.) Save as aforesaid, section twenty-seven of the 
 Regulation of Railways Act, 1873, shall apply, and any 36 & 37 
 act may be done by any two Commissioners (&). lar.* 
 
 (5.) Every Judge who may with his consent be as- 
 signed to hold the office of ex officio Commissioner shall 
 attend to hear any cases before the Commission, which 
 as ex ojficio Commissioner he is required to hear, when 
 and as soon as the cases are ready to be heard, or as soon 
 thereafter as reasonably may be; and any such Judge 
 shall be required to perform any of the other duties of a 
 Judge of a superior Court only when his attendance on 
 the Commission is not required. 
 
 (6.) If and when any Judge who may be assigned to 
 hold the office of ex officio Commissioner is temporarily 
 unable to attend, the Lord Chancellor in England, the 
 Lord President of the Court of Session in Scotland, and 
 the Lord Chancellor in Ireland, may respectively nomi- 
 nate any Judge of a superior Court to sit as ex ojficio 
 Commissioner in place of the Judge who is so temporarily 
 unable to attend as aforesaid, and the Judge so nomi- 
 nated shall for the purpose of any case which he may 
 hear be an ex officio Commissioner. 
 
 (7.) If the President of the Board of Trade is satisfied Whore p- 
 either of the inability of an appointed Commissioner to commis- 
 attend at the hearing of any case, or of there being a " to 
 vacancy in the office, and in either case of the necessity attend.
 
 32 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 of a speedy hearing of the case, he may appoint a tem- 
 porary Commissioner to hear such case, and such Com- 
 missioner, for all purposes connected with such case, 
 shall, until the final determination thereof, have the 
 same jurisdiction and powers as if he were an appointed 
 Commissioner. A temporary Commissioner shall be 
 paid such sum by the Commissioner so unable to sit, or, 
 if the office is vacant, out of the salary of the office, as 
 the President of the Board of Trade may assign (c). 
 
 (a) An appeal from a decision of the Commissioners lies 
 only on a question of law. 1 
 
 (6) Sect. 27 of the Act of 1873 is as follows : " The 
 Commissioners shall sit at such times and in such places 
 and conduct their proceedings in such manner as may seem 
 to them most convenient for the speedy despatch of busi- 
 ness ; they may, subject as in this Act mentioned, sit either 
 together or separately, and either in private or open Court, 
 but any complaint made to them shall, on the application of 
 any party to the complaint, be heard and determined in 
 open Court." 
 
 (c) See sects. 2 and 8. 
 
 Appoint- ^' O n an address from both Houses of Parliament 
 ment of representing that, regard being had to the duties im- 
 
 additional r 6 . 
 
 Judge. posed by this Act on the ex officio Commissioners, the 
 state of business of the High Court in England requires 
 the appointment of an additional Judge of that Court, it 
 shall be lawful for her Majesty to appoint an additional 
 Judge of such Court (a), and from time to time, on a like 
 address but not otherwise, to fill any vacancy in such 
 judgeship, and the law relating to the appointment and 
 qualification of the judges of such superior Court, to 
 their duties and tenure of office, to their precedence, 
 salary, and pension, and otherwise, shall apply to any 
 
 1 Sect. 17, p. 49. See also s. 12 and n.
 
 COMPLAINTS TO COMMISSIONERS. 33 
 
 Judge so appointed under this section (&), and a Judge so 
 appointed under this section shall be attached to such 
 division or branch of the Court as her Majesty may 
 direct, subject to such power of transfer as may exist in 
 the case of any other Judge of such division or branch. 
 
 (a) So much of sect. 3 of the Act of 1873 as defines supe- 
 rior Court is repealed. The present Act (sect. 55) defines 
 " superior Court " to mean in England and Ireland the High 
 Court of Justice, in Scotland the Court of Session. The 
 Judicature Acts and Rules will apply in case of appeals 
 (cf. sect. 17, p. 49, and sects. 18-20, pp. 51-2, as to pro- 
 cedure before the Railway Commissioners). 
 
 (&) It is difficult to understand the policy of these restric- 
 tions on the appointment of an additional Judge. Without 
 such appointment being made on the commencement of the 
 operation of the Act some congestion of the legal business 
 of the Courts must take place. 
 
 7. (1.) Any of the following authorities, that is to 
 say (a) : 
 
 (a.) any of the following local authorities, namely, any p rov i 8 i on 
 harbour board (&), or conservancy authority (c), fc j^^^ 
 the common council of the city of London, any public 
 
 i i authority 
 
 council of a city or borough, any representative in certain 
 county body which may be created by an Act "" 
 passed in the present or any future session of 
 Parliament (d), any justices in quarter sessions 
 assembled, the Commissioners of Supply of any 
 county in Scotland, the Metropolitan Board of 
 Works, or any urban sanitary authority not 
 being a council as aforesaid (e), or any rural 
 sanitary authority (/) ; or 
 
 (fc.) any such association of traders or freighters, or 
 chamber of commerce or agriculture as may 
 obtain a certificate from the Board of Trade
 
 34 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 that it is, in the opinion of the Board of Trade, 
 a proper body to make such complaint (g], 
 may make to the Commissioners any complaint which the 
 Commissioners h ave jurisdiction to determine (h), and 
 may do so without proof that such authority is aggrieved 
 by the matter complained of, and any of such authorities 
 may appear in opposition to any complaint which the 
 Commissioners have jurisdiction to determine in any 
 case where such authority, or the persons represented by 
 them, appear to the Commissioners to be likely to be 
 affected by any determination of the Commissioners 
 upon such complaint. 
 
 (2.) The Board of Trade may require, as a condition 
 of giving a certificate under this section, that security 
 be given in such manner and to such amount as they 
 think necessary, for any costs which the complainants 
 may be ordered to pay or bear (f). 
 
 (3.) Any certificate granted under this section shall, 
 unless withdrawn, be in force for twelve months from the 
 date on which it was given. 
 
 (a) Sect. 13 of the Act of 1873, making a certificate of the 
 Board of Trade a condition precedent to the complaint, is 
 repealed, and the present section contains much fuller pro- 
 vision for complaints by various authorities and bodies, and 
 omits restrictions as to the cause of complaint if it is within 
 the jurisdiction of the Railway Commissioners. As to such 
 jurisdiction, see sect. 8, p. 36. 
 
 Harbour (&) Sect. 55 defines " Harbour Board " as " any persons 
 
 Board. who are 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." 
 
 Dock Companies are included in this definition. 
 Conser- (c) Defined in sect. 55 to mean " any persons who are 
 
 of otherwise than for private profit intrusted with the duty or 
 authority.
 
 COMPLAINTS TO COMMISSIONERS. 35 
 
 invested with, the power of conserving, maintaining, or 
 improving the navigation of any tidal or inland water or 
 navigation. 
 
 (d) As to County Councils and their duties and powers, County 
 see the Local Government Act, 1888. 1 Boroughs under that i nd 
 
 . Borough 
 
 Act are County Boroughs, 2 Quarter Sessions Boroughs, 3 and Councils. 
 Boroughs with separate Commissions of the Peace. 4 
 
 (e) Sect. 6 of the Public Health Act, 1875 (38 & 39 Viet, 
 c. 55), defines what is an Urban Sanitary Authority. 
 Sect. 38, sub-sect. (3) of the Local Government Act, 1888, 
 enacts that a Quarter Sessions Borough shall be an Urban 
 Sanitary Authority within the moaning of the Highways 
 and Locomotives (Amendment) Act, 1878. 5 
 
 The Improvement Commissioners would be an example of 
 an Urban Sanitary Authority "not being a council" as 
 expressed herein. 
 
 (/) The Guardians of the Union, 38 & 39 Viet. c. 55, 
 s.9. 
 
 (0) Cf. sect. 53, sub-sect. (2). Under the repealed sect. 1 3 
 of the 1873 Act the Board of Trade certificate was required 
 as to the cause of complaint. Now any complaint may be 
 made within the proviso of this section. 
 
 (A) Cf. sect. 8 and nn. 
 
 (1) Apparently inserted to provide for cases of associa- 
 tions (e.g. Chambers of Commerce), which have no property 
 on which to levy. It confers a quasi judicial power on the 
 Board of Trade. The provision as to security is contrary to 
 the usual practice of a Court of Record in dealing with costs. 
 
 Cf. sect. 53, as to certificates and other proceedings of the 
 Board of Trade. 
 
 1 51 & 52 Viet. c. 41, SB. 1, 3, 8. 
 
 2 /&., as. 31-34. 
 8 lb., 88. 35-37. 
 
 4 76., KS. 36-38. For application of the Act to the metropolis, see 
 KB. 40-43. 
 6 41 & 42 Viet. c. 77. 
 
 D 2
 
 36 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 Jurisdiction. 
 
 o 8. There shall be transferred to and vested in the 
 Railway Commissioners all the jurisdiction and powers which at 
 Commis- fa e commencement of this Act were vested in, or capable 
 
 sioners 
 
 transferred o f being exercised (a) by the Railway Commissioners, 
 Commis- whether under the Regulation of Railways Act, 1873, or 
 any other Act, or otherwise and any reference to the 
 Railway Commissioners in the Regulation of Railways 
 Act, 1873, or in any other Act, or in any document, 
 shall, from and after the commencement of this Act, be 
 construed to refer to the Railway and Canal Commission 
 established by this Act. 
 
 (a) The Act of 1873, sect. 6, gave the Kailway Commis- 
 Bioners appointed by that Act jurisdiction in the words 
 following :".... And for the purpose of enabling the 
 Commissioners to hear and determine the matter of any 
 such complaint, they may have and may exercise all the 
 jurisdiction conferred by sect. 3 of the Eailway and Canal 
 Traffic Act, 1854, on the several Courts and Judges em- 
 powered to hear and determine complaints under that 
 Act." .... 
 
 Under sect. 3 of the Act of 1854, parties complaining 
 might apply by motion or summons, or, on the certificate 
 of the Board of Trade, the Attorney-General might apply 
 in like manner to the superior Court (Court of Common 
 Pleas). The Court might hear and determine the matter, 
 issue writs of injunction, of attachment, and execution, and 
 inflict penalties. The Court could also order a rehearing of 
 the application, a power apparently given to the new Com- 
 mission by sect. 18 (2) of this Act. 
 
 Sect. 26 of the Act of 1873 gave jurisdiction to the Court 
 of Queen's Bench to enforce orders made by the Commis- 
 sioners, but the original jurisdiction was only in the latter 
 tribunal. " We are simply ancillary to assist the Commis-
 
 JURISDICTION OF COMMISSIONERS. 37 
 
 sioners when the parties are entitled to certain rights under 
 the order of the Commissioners." l 
 
 Under the 1873 Act the Commissioners had apparently 
 all the powers to inflict penalties and issue writs of attach- 
 ment given to the Courts and Judges by the Act of 1854. 2 
 
 And where the Commissioners made an order in excess of Prohibi- 
 their jurisdiction prohibition was issued from the High tion> 
 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. <fe L. Ry. Co., 11 App. Cas. 97. 
 
 8 lb., 219. 
 
 * L. & N. W. Ry. Co. v. Evershed, 3 App. Cas. 1029; The Lanca- 
 shire liy. Co. v. Gidlow, L. R. 7 H. L. 517. 
 6 L. R. 4 H. L. 226.
 
 44 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 Now by this section such damage will be recoverable by 
 one proceeding in place of two, inasmuch as the damages 
 are to be given in substitution for, or in addition to, other 
 relief. But the section goes further, and indicates that 
 overcharges are but one form of damage which the Com- 
 missioners are legally competent to award. Expense of 
 proceeding before the Railway Court is " damage," but the 
 rules of Common Law as to damage recoverable will, it is 
 submitted, still obtain, 1 and it is probable that overcharges 
 causing "damage " are made in good faith by railway and 
 canal companies. 
 
 Complaint To obtain damages under this section, however, the com- 
 plaint must be made to the Commissioners within one year 
 within a from the discovery by the party aggrieved of the matter 
 year. complained of. One serious observation arises upon con- 
 
 sideration of this section. " Undue preference " and " unequal 
 rates" may be purely questions of fact. 2 By sect. 17, no 
 appeal lies from the Commissioners upon a question of fact, 
 and railway companies may find themselves mulcted in large 
 sums by way of damages, and deprived of the right of appeal 
 possessed, in some degree, by every other litigant in the 
 realm. The Railway Court is now a Court of Record, and 
 it was formerly an incident of such a Court that error lay 
 upon its judgment. This section must be read with sect. 1 3. 
 (c) As to enforcing any award, see note to sect. 8. Sects. 
 6 and 26 of the Act of 1873 provided for enforcing the 
 orders of the Commissioners. The primitive order to compel 
 obedience to ;any order of redress must have been made in 
 the first instance by the Commissioners, 3 and then only the 
 High Court had jurisdiction to enforce the same. 
 
 Nodamages 13. In cases of complaint of undue preference (a) no 
 rates damages shall be awarded if the Commissioners shall 
 un!ier hed & n ^ tnat tne rates complained of have, for the period 
 certain during which such rates have been in operation, been 
 
 conditions. 
 
 1 Hadley v. Baxendale, 9 Exch. 
 
 2 Cf. note to sect, 17. 
 
 3 The Chatterly Iron Co. v. The North Staffordshire Ry. Co, 
 3 N. & M. 250.
 
 ORDERS ON TWO COMPANIES. 45 
 
 duly published in the rate books of the railway company 
 kept at their stations in accordance with section fourteen 
 of the Regulation of Railways Act, 1873, as amended by 
 this Act (6), unless and until the party complaining 
 shall have given written notice to the railway company 
 requiring them to abstain from or remedy the matter of 
 complaint, and the railway company shall have failed, 
 within a reasonable time, to comply with such require- 
 ments in such a manner as the Commissioners shall think 
 reasonable (c). 
 
 (a) As to undue preference, see sect. 27. 
 
 (6) Sect. 14 of the Act of 1873 1 provided that the railway 
 companies shall keep rate-books at each of their stations and 
 wharves, shewing every rate charged from such station. 
 Cf. sect. 33 of this Act which amends the sect. 14 of the Act 
 of 1873. 
 
 (c) Cf. sect. 7 of the Act of 1873, which is not repealed, 
 and gives power to Commissioners to enable companies to 
 explain alleged violation of law. 
 
 14. The Commissioners may order two or more com- Orders on 
 panics to which this part of this Act applies to carry ^ e or 
 into effect an order of the Commissioners, and to make companies. 
 mutual arrangements for that purpose, and may further 
 order the companies or, in case of difference, any of 
 them, to submit to the Commissioners for approval a 
 scheme for carrying into effect the order, and when the 
 Commissioners have finally approved the scheme, they 
 may order each of the companies to do all that is neces- 
 sary on the part and within the power of such company 
 to carry into effect the scheme, and may determine the 
 proportions in which the respective companies are to 
 defray the expense of so doing, and may for the above 
 
 1 36 & 37 Viet. c. 48, s. 14.
 
 46 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 purposes make, if they think fit, separate orders on any 
 one or more of such companies (a). 
 
 Provided that nothing in this section shall authorize 
 the Commissioners to require two companies to do any- 
 thing which they would not have jurisdiction to require 
 to be done if such two companies were a single com- 
 pany. 
 
 (a) This provision gets rid of the decision in the case of 
 Toomer v. L. C. & D. By. Co., 1 in which it was decided that 
 the Commissioners could not call upon two companies to act 
 jointly. Companies may now be ordered to combine for the 
 purpose of carrying out an order of the commission. 
 
 ^' ^ or *^ e P ur P oses f section eight of the Kegulation 
 36 & 37 of Railways Act, 1873, and any other enactment relating 
 
 Viet o 48 
 
 s. 8 as to ' to the reference to the Railway Commission of any dif- 
 - ference between companies which under the provisions 
 of any general or special Act is required or authorized 
 to be referred to arbitration, the provisions of any agree- 
 ment confirmed or authorized by any such Act shall be 
 deemed to be provisions of such Act (a). 
 
 (a) The eighth section of tlie Act of 1873, 2 enacted that 
 where any difference between railway companies was under 
 the provisions of any general or special Act required or 
 authorized to be referred to arbitration, such difference might 
 be referred to the Commissioners, in lieu of being referred to 
 arbitration. The Railway Arbitration Act, 1859, 3 enabled 
 companies to " settle their differences with other companies 
 by arbitration." 
 
 The present section provides for cases in which the right 
 to refer was derived from the agreement to refer (although 
 such agreement was recited in or scheduled to an Act of 
 
 1 2 Ex. Div. 450. 2 36 & 37 Viet. c. 48, s. 8. 
 
 3 22 & 23 Viet. c. 59, s. 2.
 
 ARBITRATION. 47 
 
 Parliament), and the difference was not " required or autho- 
 rized " to be referred under any general or special Act. 1 In 
 the case of the Greenock and Wemyss Bay Ry. Co. v. The 
 Caledonian Ry. Co., 2 Lord Cairns took the view that " the 
 words used in the agreement removed it from the mere 
 category of an agreement, inter paries, into the higher category 
 of specific law." 
 
 In some of their earlier decisions, the Railway Com- 
 missioners took a wider jurisdiction than was afterwards 
 sanctioned by the superior Courts. But all difficulties as to 
 the statutory force of agreements to refer will, it seems, be 
 met by the present section. 3 
 
 The sufficiency of existing through rates, and the propriety 
 of granting others, are amongst the matters which failing 
 agreement were required by a special Act to be referred to 
 arbitration. 4 
 
 An agreement to refer under the Railway Companies 
 Arbitration Act, 1859, if insisted on, ousts the jurisdiction of 
 the Court. 5 But where no arbitrator was appointed in 
 accordance with the agreement, the jurisdiction of the Court 
 was not ousted. 6 
 
 The agreement to refer under sect. 2 of the Arbitration 
 Act, 1859, must be by writing under the seal of the company, 
 but a working agreement between two companies containing 
 
 1 The Queen v. The Midland Ry. Co., 19 Q. B. D. 540, and 5 Br. 
 & M. 627 ; G. W. By. Co. v. Waterford and Limerick Ry. Co., 17 C. D. 
 493. 
 
 L. R. 2 H. L. Sc. 347. 
 
 8 For other decisions on the subject, sec Stokes Bay Ry. and Pier 
 Co. v. L. & S. W. Ry. Co., 2 M. & N. 143 ; Torbay and Brixham Ry. 
 Co. v. South Devon Ry. Co., 2 N. & M. 391 ; Portpatric Ry. Co. v. 
 Caledonian Ry. Co., 3 M. & N. 189 ; Limerick and Kerry Ry. Co. 
 v. Limerick Ry. Co., 5 Br. & M. 89. 
 
 4 G. W. Ry. Co. v. Central Wales and C. L Ry. Co., 5 Br. & M. 1. 
 
 6 22 & 23 Vic. c. 59, s. 26 ; Watford and Rickmansworth Ry. Co. 
 v. L. & N. W. Ry. Co., L. R. 8 Eq. 231 ; Hodgson v. Railway Pas- 
 sengers Ass. Co., 9 Q. B. D. 190. 
 
 6 Wolverhampton and Walsall Ry. Co. v. L. & N. W. Ry. Co., 
 L. R. 16 Eq. 433; and ee as to interference of Court by injunction, 
 Ib. p. 440.
 
 48 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 a provision with reference to the settlement of disputes by 
 arbitration was held to be a writing within the meaning of 
 the section (Portpatrick Hy. Co. v. Caledonian Hy. Co.) 1 
 See further, the Board of Trade Arbitrations Act, 1874. 2 
 
 Power to 16.- (1.) Where the Board of Trade or the Commis- 
 
 apportion . ' 
 
 expenses sioners, in the exercise of any power given by any general 
 railway or special Act, on application order a company to which 
 
 P art ^ ^is ^ ct a ppli es > 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 <l ue8t i 011 f f act > 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 (<Z). In the determination of the terminal charges 
 of any railway company regard shall be had only to the 
 expenditure reasonably necessary to provide the accom- 
 modation in respect of which such charges are made, 
 irrespective of the outlay which may have been actually 
 incurred by the railway company in providing that 
 accommodation (e). 
 
 (2.) The classification and schedule shall be submitted 
 within six months from the passing of this Act, or such 
 further time as the Board of Trade may, in any particular 
 case, permit, and shall be published in such manner as 
 the Board of Trade may direct. 
 
 (3.) The Board of Trade shall consider the classifica- See sub- 
 tion and schedule, and any objections thereto, which 80 
 may be lodged with them on or before the prescribed 
 time and in the prescribed manner, and shall communicate 
 with the railway company and the persons (if any) who 
 have lodged objections, for the purpose of arranging the 
 differences which may have arisen. 
 
 (4.) If, after hearing all parties whom the Board of Procedure 
 Trade consider to bo entitled to be heard before them y .^d O f
 
 56 HAIL WAT AND CANAL TRAFFIC ACT, 1888. 
 
 Trade respecting the classification and schedule (/), the Board 
 
 to agree- of Trade come to an agreement with the railway company 
 
 I-MiTway 1111 ^ to tlie classification and schedule, they shall embody 
 
 company, ^he agreed classification and schedule in a Provisional 
 
 Order, and shall make a report thereon, to be submitted 
 
 to Parliament, containing such observations as they 
 
 think fit in relation to the agreed classification and 
 
 schedule (g). 
 
 (5.) When any agreed classification and schedule have 
 been embodied in a Provisional Order, the Board of 
 Trade, as soon as they conveniently can after the making 
 of the Provisional Order (of which the railway company 
 shall be deemed to be the promoters), shall procure a 
 Bill to be introduced into either House of Parliament for 
 an Act to confirm the Provisional Order, which shall be 
 set out at length in the schedule to the Bill (h). 
 Where (6.) In any case in which a railway company fails 
 
 within the time mentioned in this section to submit a 
 
 submit classification and schedule to the Board of Trade, and 
 
 schedule, 
 
 or is unable also in every case in which a railway company has sub- 
 thereupon mitted to the Board of Trade a classification and schedule, 
 of Trade" an( * a ^ ter hearing all parties whom the Board of Trade 
 consider to be entitled to be heard before them, the 
 Board of Trade are unable to come to an agreement 
 with the railway company as to the railway company's 
 classification and schedule, the Board of Trade shall 
 determine the classification of traffic which, in the 
 opinion of the Board of Trade ('), ought to be adopted 
 by the railway company, and the schedule of maximum 
 rates and charges, including all terminal charges pro- 
 posed to be authorized applicable to such classification 
 which would, in the opinion of the Board of Trade, be 
 just and reasonable, and shall make a report, to be sub-
 
 CLASSIFICATION OF TRAFFIC. 57 
 
 mitted to Parliament, containing such observations as 
 they may think fit in relation to the said classification 
 and schedule, and calling attention to the points therein 
 on which differences which have arisen have not been 
 arranged. 
 
 (7.) After the commencement of the session of Parlia- 
 ment next after that in which the said report of the 
 Board of Trade has been submitted to Parliament, the 
 railway company may apply to the Board of Trade to 
 submit to Parliament the question of the classification 
 and schedule which ought to be adopted by the railway 
 company, and the Board of Trade shall on such applica- 
 tion, and in any case may, embody in a Provisional 
 Order such classification and schedule as in the opinion 
 of the Board of Trade ought to be adopted by the railway 
 company, and procure a Bill to be introduced into either 
 House of Parliament for an Act to confirm the Provisional 
 Order, which shall be set out at length in the schedule 
 to the Bill. 
 
 (8.) If, while any Bill to confirm a Provisional Order Bill to 
 made by the Board of Trade under this section is pending pro 
 in either House of Parliament, a petition is presented ? rder ma y 
 
 be opposed 
 
 against the Bill or any classification and schedule com- like private 
 prised therein, the Bill, so far as it relates to the matter 
 petitioned against, shall be referred to a Select Com- 
 mittee, or if the two Houses of Parliament think fit so to 
 order, to a joint Committee of such Houses, and the 
 petitioner shall be allowed to appear and oppose as in 
 the case of a private Bill. 
 
 (9.) In preparing, revising, and settling the classifica- 
 tions and schedules of rates and charges, the Board of 
 Trade may consult and employ such skilled persons as 
 they may deem necessary or desirable; and they may
 
 58 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 pay to such persons such remuneration as they may think 
 fit and as the Treasury may approve. 
 
 (10.) The Act of Parliament confirming any Provisional 
 Order made under this section shall be a public general 
 Act, and the rates and charges mentioned in a Provisional 
 Order as confirmed by such Act shall, from and after the 
 Act coming into operation, be the rates and charges which 
 the railway company shall be entitled to charge and make. 
 
 (11.) At any time after the confirmation of any Pro- 
 visional Order under this section any railway company 
 may, and any person, upon giving not less than twenty- 
 one days' notice to the railway company may, apply in 
 the prescribed manner to the Board of Trade to amend 
 any classification and schedule by adding thereto any 
 articles, matters, or things, and the Board of Trade may 
 hear and determine such application, and classify and 
 deal with the articles, matters, or things referred to 
 therein in such manner as the Board of Trade shall 
 think right. Every determination of the Board of Trade 
 under this sub-section shall forthwith be published in 
 the " London Gazette," and shall take effect as from the 
 date of the publication thereof. 
 
 (12.) Nothing in this section shall apply to any re- 
 muneration payable by the Postmaster-General to any 
 railway company for the conveyance of mails, letter bags, 
 or parcels under any general or special Act relating to 
 
 45 & 46 the conveyance of mails, or under the Post Office (Parcels) 
 Viet. c. 74. Actj 18g2< 
 
 (13.) Nothing in this section shall apply to any re- 
 muneration payable by the Secretary of State for War 
 to any railway company for the conveyance of War 
 
 46 & 47 Office stores under the powers conferred by the Cheap 
 Viet. c . 34. Trains Act> 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,,d Wi r Ihj. Co. v. G. W. Ry. Co., 5 Br. & M. 157. 
 
 1 Eastern and Midland Ry. Co. v. M. Hy. Co.. 5 Br. & M. 235.
 
 76 K AIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 footing with the largest, and it is no bar that the distance 
 travelled over is comparatively insignificant. 1 
 
 Apart from the question of through rates, a railway 
 company has a right to carry the traffic as far as it can by 
 its own line. See, as to principles on which a through rate 
 granted, The G. W. By. Co. v. The Severn and Wye By. Co. 
 and the Midland By. Co. ; The Severn and Wye By. Co. v. 
 G. W. By. Co., 2 and Of. sect. 25 (5) n. 
 
 The usual course in apportioning the through rate is to 
 divide by mileage after deducting terminals, considering 
 also the relative expenses and outlay of the respective 
 lines. 3 Cf. sect. 25 (6). 
 
 Undue pre- 27. (1.) Whenever it is shown that any railway com- 
 
 casTof un- P^ny charge one trader (a) or class of traders, or the traders 
 
 tolls, j n anv digtric^ lower tolls, rates, or charges for the same 
 
 charges, O r similar merchandise, or lower tolls, rates or charges for 
 
 and un- . 
 
 equal the same or similar services, than they charge to other 
 performed traders, or classes of traders, or to the traders in another 
 district, or make any difference in treatment in respect 
 of any such trader or traders, the burden of proving that 
 such lower charge or difference in treatment does not 
 amount to an undue preference shall lie on the railway 
 company (6). 
 
 (2.) In deciding whether a lower charge or difference 
 in treatment does or does not amount to an undue pre- 
 ference (c) the court having jurisdiction in the matter, 
 or the Commissioners, as the case may be, may so far as 
 they think reasonable, in addition to any other considera- 
 tions affecting the case, take into consideration whether 
 
 1 Col. Ey. Co. v. N. B. Ey. Co., 3 N. & M. 403. 
 
 2 5 Br. & M. 171. 
 
 8 Severn and Wye Ey. Co. v. G. W. Ey. Co., 5 Br. & M. 166 ; 
 Col. Ey. Co. v. N. B. Ey. Co., 3 N. & M. 403 ; and see L. & N. Ey. 
 Co. v. G. W. By. Co. and Central Wales Ey. Co., 5 Br. & M. 20 ; 
 Greenock & Wemyss Bay Ey. Co. v. C. Ey. Co., 2 N. & M. 234.
 
 HOME MERCHANDISE. 77 
 
 such lower charge or difference in treatment is necessary 
 for the purpose of securing in the interests of the public 
 the traffic in respect of which it is made, and whether the 
 inequality cannot be removed without unduly reducing 
 the rates charged to the complainant : Provided that no 
 railway company shall make, nor shall the court, or the 
 Commissioners, sanction any difference in the tolls, rates, 
 or charges made for, or any difference in the treatment 
 of, home and foreign merchandise, in respect of the same 
 or similar services (d). 
 
 (3.) The court or the Commissioners shall have power Home mer- 
 to direct that no higher charge shall be made to any 
 person for services in respect of merchandise carried over 
 a less distance than is made to any other person for 
 similar services in respect of the like description and 
 quantity of merchandise carried over a greater distance 
 on the same line of railway. 
 
 (a) Cf. definition of "trader," sect. 55, p. 113. 
 
 (6) Inequalities of charges for like services were only 
 primd facie evidence of undue preference, 1 and an applicant 
 complaining of being unduly prejudiced had to prove some 
 injury accruing to him. 2 Now the mere fact that, rightly or 
 wrongly, an unequal charge is made, or unequal service 
 performed, imposes on the railway companies the burden of 
 proving that they are acting legally. 
 
 (c) Apart from legislative restriction it was competent to 
 railway companies to charge unequal tolls, provided only 
 such charges were reasonable. 3 
 
 Sect. 90 of the R. C. C. Act, 1845, provided for equality of 
 rates for all goods passing only over the same portion of the 
 
 1 Q. W. By. Co. v. Button, L. R. 4 H. L. 227. 
 
 8 Hazier v. C. By. Co., 1 N. & M. 31 ; The Skinningrove Iron Co. 
 v. N. E. By. Co., 5 Br. & M. 245 ; The Heeston Brewery Co. v. M. Ity. 
 Co., 5 Br. & M. 53. 
 
 9 Cf. W. By. Co. v. Sutton, L. R. 4 II. L. 227.
 
 78 It AIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 lino under the simo circumstances, and that no reduction nor 
 advance shall be made in favour of or against any particular 
 company or person. 
 
 Sect. 2 of the Act of 1854 provided that no company 
 therein referred to should "subject any particular person 
 or company, or any particular description of traffic to any 
 undue or unreasonable prejudice or disadvantage in any 
 respect whatsoever." 
 
 The provisions in pari materid of the Act of 1854, diifer 
 from the 90th sect, of the Act of 1845 in this important 
 respect, that they prohibit everything which may operate as 
 "an undue or unreasonable preference or advantage," not to 
 particular persons or companies only, but to " any particular 
 description of traffic, and that generally, and not with any 
 particular reference to the incidence of rates or tolls." 1 
 
 Cf. definition of term " undue preference," sect. 55, p. 113. 
 
 Definition . . . 
 
 of undue In administering the law, the Courts and Commissioners 
 preference, have apparently been guided by the circumstances of each 
 case, and it is difficult to gather from the numerous decisions 
 any one fixed rule. 2 Lowering rates to introduce a com- 
 modity into a particular district, or otherwise to develop a 
 trade, has been held to be giving an undue preference to 
 that traffic. 3 
 
 The fair interests of the railway ought to be taken into 
 account, but one trader must not directly be preferred to 
 another. 3 
 
 1 Denaby Main Colliery Case, 11 App. C;is. 114, per Lord Selbornc. 
 
 2 Palmer v. L. & S. W. By. Co., 1 N. & M. 248, ptr Erie, C.J. ; 
 Diphws Casson Slate Co. v. Fextiniog By. Co., 2 N. & M. 81. 
 
 3 In re, Oxtade, 1 C. B. (N.S.), 454 ; Jn re Bansome, 1 C. B. (N.S.), 
 452, per Cresswell, J. In both these last cited cases the Court of 
 Common Picas refused. to grant an injunction ordering the company to 
 charge an equal mileage, as it was not shown that there were not 
 circumstances making it more expensive to carry the applicant's coal 
 than those of others. But in both cases the decision was against the 
 railway company, in the former, because it appeared to be the manifest 
 object of the railway company, in charging different rates, to enable 
 one set of coal owners to compete with another set. In the latter, 
 because the lowering the rates appeared to be solely from a desire " to 
 introduce Northern coke into Staffordshire."
 
 UNDUE PREFERENCE. 79 
 
 Preference may be given. It must be "undue" and 
 " unreasonable " to bring it within the statute. 1 
 
 " The intention of the legislature was to give equal advan- 
 tages, so far as the rate of charge is concerned to all in- 
 dividuals similarly circumstanced . . . and that a railway 
 company should not be at liberty to make particular bargains 
 with particular individuals, whereby one person is benefited 
 and another injured." 2 
 
 " The policy and justice of such a requirement are manifest, 
 it being obvious that the powers of a railway company, and 
 its monopoly, under the impossibility of all competition, 
 might otherwise be converted into a means of very grievous 
 oppression by a difference in point of charge, or in point of 
 accommodation made in favour of one man at the expense of 
 another, or by disadvantages in respect either of charge or 
 accommodation imposed on one as compared with another. 
 
 " Such being plainly the intention of the legislature . . . 
 we must endeavour to prevent any injustice, either in the 
 rate of charge, or in the degree of accommodation afforded, 
 at the same time that we carefully avoid interfering, except 
 where absolutely necessary for the above purpose, with the 
 ordinary rights (which subject to the before-named qualifi- 
 cations) a railway company in common with every other 
 company or individual possesses, of regulating and managing 
 its own affairs either with regard to charges or accommoda- 
 tion, or to the agreements and bargains it may make it its 
 particular business." 3 
 
 So where a differential rate was fixed only to enable iron- 
 works situated at a distance from a- market to compete with 
 ironworks situated nearer, it was held an undue preference 
 to the distant, and an undue prejudice to the nearer works. 4 
 
 It is immaterial that the railway company has acted 
 without intention of giving undue preference. 6 
 
 1 In re Nicholson, 5 C. B. (N.S.) 437. 
 
 2 Per Cockburn, C.J., in Harris v. Cockermouth and Workington 
 Ry. Co., 1 N. & M. 101. 
 
 8 Per same judge in Baxendale v. G. W. Ry. Co., 5 C. B. (N.S.) 251. 
 4 Skinnington Iron Co. v. N. E. Ry. Co., 5 Br. & M. 244. 
 6 Baxendale v. L. & S. W. l!y. Co., 1 N. & M. 236.
 
 80 E AIL WAT AND CANAL TRAFFIC ACT, 1888. 
 
 But where a particular person sends goods in such quantity 
 or manner as to diminish cost of carriage, the company may 
 make a special agreement with the view of securing a greater 
 remunerative profit thereby ; l and in dealing with large 
 quantities of goods, charges may be made having regard to 
 local and general circumstances. 2 
 
 A railway company may not by means of differential rates 
 diminish the accommodation and availability of the railway 
 of another company, and it seems equal treatment may not 
 be extended to all traders by reason only that the same 
 agreement is offered to all, if it cannot reasonably be taken 
 advantage of by those to whom it, is offered. 3 
 
 But the agreement in such behalf must not go beyond the 
 fair regard which a company may pay to its own interests. 4 
 And where a quarry company promised exclusive use of a 
 railway for a term of thirty years this was held to be no 
 consideration for a differential rate, and that such difference 
 was an undue preference and prejudice within the meaning 
 of the Act. 5 
 
 Where two competitive articles were in substance the same, 
 and the difference between them did not enhance the cost of 
 conveyance to the company, inequality of treatment was 
 held to be an undue prejudice. But if the cost of conveyance 
 to the company of the one article was less than of the other by 
 reason of the gradients, or otherwise, a proportionate difference 
 might be made in the mileage rate. 6 
 
 Where a railway company granted facilities to certain 
 traders as an inducement to use their line and not the line 
 of a rival company it was held to be an inequality, and 
 
 1 Nicholson v. O. W. Ry. Co., 5 C. B. (N. S.), 366 ; Strickv. Swansea 
 Canal Co., 16 C. B. (N. S.) 245, where it was also held that it was 
 competent to the company to charge a less toll for a given distance ; 
 Greenop v. S. E. Ry. Co., 2 N. & M. 319 ; Broiighton v. G. W. Ry. 
 Co., 4 Br. & M. 191 ; hut see Girardot v. M. Ry. Co., 4 Br. & M. 291. 
 
 2 Harris v. Cockermoath & Workinyton Ry. Co., supra, and see 
 Report of Committee, 1881-2, p. xi. 
 
 3 Rhymney Iron Co. \. Rhymney Ry. Co., 4 T. Rep. 717. 
 
 4 Diphws Casson Slate Co. v. Festiniog Ry. Co., 2 N. & M. 79. 
 6 Holland v. Festiniog Ry. Co., 2 N. & M. 278. 
 
 8 Nitshill and Lesmahagow Coal Co. v. C. Ry. Co., 2 N. & M. 29.
 
 UNDUE PREFERENCE. 81 
 
 giving an undue preference within the statute ; l and the 
 absence of any intention on the part of the company to act 
 improperly is, it seems, immaterial. 2 
 
 The subject was discussed in the important case of the 
 Denaby Main Colliery Co. Ld. v. M. S. and L. By. Co. 3 In that Ca 
 case, a railway company carried coals from a group of col- 
 lieries situate at different points along their line, and charged 
 all the collieries with one uniform set of rates in respect of 
 such carriage, and the owners of the colliery lying nearest to 
 the point of arrival, brought an action to recover overcharges. 
 It was held that the railway company had not infringed the 
 provisions of sect. 90 of the K. C. C. Acf, 1845. But in the 
 same case it was decided that where goods are carried for 
 different customers " over the same portion of the line of 
 railway," the fact that the goods carried for one customer 
 are to be shipped to certain ports in order to develope a 
 new trade, or open up new markets, and so to increase 
 the tonnage earned, does not constitute a difference in the 
 circumstances so as to justify inequality of rates. 
 
 In Murray v. G. & S. W. Ry. Co.,* it was held that to justify 
 proceedings under the section of the Scotch Act correspond- 
 ing to sect. 90 of the K. C. C. Act, 1845, by a person com- 
 plaining of undue preference in the rates charged to 
 another trader, the goods of the two traders must be carried 
 on precisely the same journey, from the same place and to 
 the same place. This view was approved in the Denaby 
 Case. 6 
 
 Traffic arrangements made between companies in virtue of 
 
 1 Ever shed v. L. & N. W. Py. Co., 3 A pp. Cas. 1029; and sec 
 Thompson v. /,. & N. W. Ry. Co., 2 N. & M. 115 ; Foreman v. 0. E. 
 Ry. Co., 2 N. & M. 202. 
 
 2 In re Daxendale, 12 C. B. (N.S.) 769. 
 8 11 App. Cas. 97. 
 
 4 11 Court Sess. Cases, 4th Series, 205. 
 
 8 11 App. Cas. 119. See also as to preference in unloading goods, 
 Cooper v. L. & S. W. Ry. Co. ; undue preference collecting parcels, 
 Palmer v. L. & S. W. Ry. Co., supra; undue preference receiving 
 goods, Palmer v. L. B. & S. C. Ry. Co., L. R. 6 C. P. 194; undue 
 preference delivering goods, Parkinson v. O. W. Ry. Co., I,. U. 
 
 6C.P, r,f,l. 
 
 O
 
 82 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 sect. 87 of the R. C. C. Act, 1845, are governed by sect. 88 of 
 that Act, and are not within sect. 90, and an apportioned part 
 of a through rate cannot be compared with a rate charged to 
 traders under different circumstances. 1 
 
 Under this sect, and sect. 30, two questions present them- 
 selves, viz., the preference given (1) as between foreign and 
 home production ; and (2) as between port and port. 
 
 Beyond considering the just rights of the railway com- 
 panies, the Commissioners will consider if a differential rate 
 is necessary for seciiring traffic in the interests of the public. 
 
 In Palmer v. L. B. & S. C. Hy. Co., 2 it was suggested that 
 a course of business necessary for securing an advantage 
 to the public which at the same time gave a monopoly to the 
 company, would be an undue or unreasonable prejudice. Cf. 
 sect. 25 n. (</). 
 
 (d) The proviso, it is submitted, governs the section, and 
 apparently will affect imports more than exports. The 
 principle seems to be that companies shall not make good 
 any loss on reduced foreign rates out of home traffic. Pro- 
 bably they will now approximate the rates on both kinds 
 of traffic to each other. 
 
 Some question may arise on the definition of "foreign 
 merchandise ;" but cf. definition of " merchandise " and of 
 " home " in relation thereto, sect. 55. It is submitted (e.g.) 
 that fish caught at sea by foreign fishing-boats are " foreign " 
 merchandise. 
 
 Extension 28. The provisions of section two of the Eailway and 
 mentis Canal Traffic Act, 1854, and of section fourteen of the 
 f Railways Act, 1873, and of any enactments 
 
 to goods amending and extending those enactments, shall apply 
 
 sea. to traffic by sea in any vessels belonging to or chartered 
 
 or worked by any railway company, or in which any 
 
 railway company procures merchandise to be carried, in 
 
 1 Hull and Barnsley By. Co. v. Yorkshire and Derbyshire Coal and 
 Iron Co., 18 Q. B. D. 761. 
 
 2 L. It. 6 C. P. 194.
 
 GROUP RATES. 83 
 
 the same manner and to the like extent as they apply to 
 the land traffic of a railway company (a). 
 
 (a) This section covers the case of steamships not owned, 
 but only subsidised by a railway company. 
 
 Sect. 2 of the Act of 1854 was held not to apply to sea 
 traffic. 1 
 
 Cf. Sect. 16 of the Act of 1868, providing for equality of 
 treatment where steamboats were worked by railway com- 
 panies, and extended the provisions of sect. 2 of the Act of 
 1854. Sect. 11 of the Act of 1873 expressly applied to steam- 
 vessels used, maintained, or worked, by any railway or canal 
 company. 2 
 
 29. (1.) Notwithstanding any provision in any Group 
 general or special Act, it shall be lawful for any railway 'h 
 
 company, for the purpose of fixing the rates to be charged b ? rail a 7 
 for the carriage of merchandise to and from any place on 
 their railway, to group together any number of places in 
 the same district, situated at various distances from any 
 point of destination or departure of merchandise, and 
 to charge a uniform rate or uniform rates of carriage 
 for merchandise to and from all places comprised in 
 the group from and to any point of destination or 
 departure (a). 
 
 (2.) Provided that the distances shall not be unreason- 
 able, and that the group rates charged and the places 
 grouped together shall not be such as to create an undue 
 preference. 
 
 (3.) Where any group rate exists or is proposed, and in 
 any case where there is a doubt whether any rates charged 
 
 1 Branley v. S. E. Ry. Co., 12 C..B. (N.S.) 74. 
 
 2 Sec Southsea and I. of W. S. Ferry Co. v. L. B. & S. C. Ry. Co., 
 2 N. & M. 341 ; Parkinson v. O. W. Ry. Co., 1 N. & M. 280; City 
 of Dublin S. Packet Co. v. L. & N. W. liy. Co., 4 Br. & M. 10; Napier 
 v. The O. & S. W. Ry. Co., 1 N. & M. 292 ; Qreenock and Wemyu 
 Bay Ry. Co. v. C. Ry. Co., 2 N. & M. 227. 
 
 o 2
 
 84 It AIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 or proposed to be charged by a railway company may 
 not be a contravention of section two of the Railway and 
 Canal Traffic Act, 1854, and any Acts amending the 
 same, the railway company may, upon giving notice in 
 the prescribed manner, apply to the Commissioners, and 
 the Commissioners may, after hearing the parties inter- 
 ested and any of the authorities mentioned in section 
 seven of this Act, determine whether such group rate or 
 any rate charged or proposed to be charged as aforesaid 
 Cf. sec. 7, does or does not create an undue preference. Any persons 
 aggrieved, and any of the authorities mentioned in 
 section seven of this Act, may at any time after the 
 making of any order under this section, apply to the 
 Commissioners to vary or rescind the order, and the Com- 
 missioners, after hearing all parties who are interested, 
 may make an order accordingly. 
 
 (a) See note to sect. 27. Grouping certain places within 
 a given area together under equal rates has not been held to 
 be an infringement of the railway Acts, and this section it 
 seems embodies existing law. 1 But the traffic of two locali- 
 ties, assuming there is a competition of interests and that 
 circumstances in other respects are not dissimilar, are as 
 much within the Act of 1854, as is the traffic of two 
 individuals. 2 
 
 Power to 30. Any port or harbour authority (a) or dock corn- 
 dock com- J 5 , , , i 
 
 pany (6) which shall have reason to believe that any 
 
 railway company is by its rates or otherwise placing 
 complain their port, harbour, or dock, at an undue disadvantage as 
 preference, compared with any other port, harbour, or dock to or 
 
 from which traffic is or may be carried by means of the 
 
 1 Denaby Main Colliery Case, ubi sup. ; Lloyd \. Northampton and 
 Banbury By. Co., 3 N. & M. 26 L. 
 
 2 Richardson v. M. Ry. Co., 4 Br. & M. G.
 
 84a 
 
 Interleaf between pp. 84 and 85. 
 
 Note to section 30. 1 It has been already pointed out that by 
 section 7, " Dock Companies " other than those maintained by 
 private enterprise and for private profit, have a locus standi 
 for complaint to the Commission, given in the definition 
 of " Harbour Board." Dock, Harbour, or Pier Companies 
 worked for private profit prior to the Act of 1888, were prac- 
 tically dependent on the good offices either of a Chamber of 
 Commerce, or some like corporation possessing a locus standi 
 under the provisions of the Act of 1873. And it actually 
 happened in some cases that such private companies were 
 compelled to avail themselves of the intervention of local 
 authorities, with whom they were in conflict on the subject 
 of local rates ! Moreover, the grievances under which they 
 laboured were so substantial, that some provision was essential 
 which should afford easier means of redress. For example : 
 A railway owning a port or docks, could so group together 
 certain collieries, works, and districts as to make them feeders 
 of docks owned by the railway, to the utter deprivation of a 
 neighbouring private dock of its geographical advantages, in 
 respect of the collieries, works, and districts so utilised by 
 the railway company, or a railway company owning or 
 leasing more than one dock, especially in one district, could 
 group them, and "squeeze" traffic from docks of private 
 undertakers situated between such railway docks. 
 
 Again, a railway company owning a dock, often by " sink- 
 ing " the dock charges seriously, and it is submitted unfairly, 
 prejudices an adjacent privately owned dock company. Such 
 private companies may now themselves raise these and like 
 questions which so seriously affect their interests. That ono 
 port may not be unduly preferred to another appears to be 
 settled law, and apparently ports trading for profit and private 
 docks are now enabled to offer strong competition to tho 
 rapidly-increasing number of railway-controlled ports and 
 railway-owned docks. 
 
 It is submitted that it is not competent for railway coin- 
 
 1 In consequence of recent discuwion as to the intotulincnt of tlds section 
 it hii boon considered desirable to add thta note.
 
 846 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 panics to include in any rate the terminal services afforded 
 by their docks, but that the rate for transport must be 
 adjusted without regard to their port or dock. 
 
 Shortly, then, the effect of the section appears to be three- 
 fold: 
 
 1. It invests all ports, harbours, and docks, with the privi- 
 leges as to complaints of any of the persons and authorities 
 mentioned in section 7 ; 
 
 2. It enables such undertakings trading for profit to assert 
 and avail themselves of their geographical advantages ; 
 
 3. It brings within the mischief and provision of the Act 
 the undue preference by railway companies of ports and 
 docks owned by them, to the undue prejudice of private 
 enterprise.
 
 COMPLAINTS TO BOARD OF TRADE. 85 
 
 lines of the said railway company, either alone or in con- 
 junction with those of other railway companies, may 
 make complaint thereof to the Commissioners, who shall 
 have the like jurisdiction to hear and determine the Cf. sec. 7. 
 subject-matter of such complaint as they have to hear 
 and determine a complaint of a contravention of section 
 two of the Kailway and Canal Traffic Act, 1854, as 
 amended by subsequent Acts (c). 
 
 (a) A harbour board could not apply for through rates 
 under sect. 11 of the Act of 1873. 
 
 (&) A dock company maintaining and working a railway 
 pausing through its property was held to be a railway 
 company within 30 & 31 Viet. c. 127, so as to have a receiver 
 appointed. 1 
 
 (c) The rates charged by railway companies for traffic to 
 ports where such traffic is to be carried from such ports to 
 others must be, relatively to the service, equal. 2 
 
 31. (1.) Whenever any person receiving or sending Complaints 
 or desiring to send goods by any railway is of opinion Trade"of 
 that the railway company is charging him an unfair or an ^, r e ea8on " 
 unreasonable rate of charge, or is in any other respect charges by 
 
 . railway 
 
 treating him in an oppressive or unreasonable manner, companies, 
 such person may complain to the Board of Trade. 
 
 (2.) The Board of Trade, if they think that there is of. sec. 7 
 reasonable ground for the complaint, may thereupon call j 873 
 upon the railway company for an explanation, and en- 
 deavour to settle amicably the differences between the 
 complainant and the railway company. 
 
 (3.) For the purpose aforesaid, the Board of Trade may cf. MC. 25 
 appoint either one of their own officers or any other ^ 
 
 1 In re East and West India Dock Co., 4 T. Rep. 530. 
 
 2 Ayr Ifaibour Trustees v. G. & S. W. Hy. Co., 4 Br. & M. 90; and 
 sec Londonderry Port and Harbour Commissioners v. 0. N. Ry. Co., 
 
 f> 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 *| 1<i 
 or body or association of persons, by some person or persons 
 
 on behalf of the company, body, or association, and shall state
 
 138 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 a postal address to and at which notices may be served or 
 
 communications addressed to the objector or objectors. 
 
 Trans- 11. Every notice of objection shall be transmitted by post 
 
 SceTo? to the Board of Trad e within eight weeks from the date of 
 
 objection, the first advertisement of the submission of the classification 
 
 and schedule to the Board of Trade,' and there shall be 
 
 marked on the outside of the cover, enclosing each notice of 
 
 objection, "Eailway and Canal Traffic Act, 1888. 
 
 Notice of 12. A copy of every notice of objection must be sent to the 
 
 objection com p an y affected thereby, by prepaid letter, addressed to the 
 
 to be sent . . . ' , ~ 
 
 to com- company at its principal omce. 
 
 pany. 13. Every notice of objection shall state clearly and as 
 
 Grounds of concisely as possible, by reference to the proposed classifica- 
 
 to"be ! *i n an d schedule, the precise portion of the classification or 
 
 stated. schedule objected to, and the grounds of objection. 
 
 Hearing of 14. After the expiration of eight weeks from the date of 
 
 o jections. ^ e rg j. a( j ver ti 8 ement of the submission of the proposed 
 
 classification and schedule to the Board of Trade, a time and 
 
 place shall be appointed by the Board of Trade for disposing 
 
 of the objections which have been duly lodged with the 
 
 Board of Trade, notice whereof shall be given by post to 
 
 each objector at the address mentioned in the notice of 
 
 objection. 
 
 Default in 15. If any objector or the company fails or fail to attend 
 attendance a t the time appointed for disposing of objections, the Board 
 of objec' S f Trade may proceed to dispose of the matter in the absence 
 tions. of any of the parties interested, or may adjourn the hearing 
 of the matter. 
 
 Miscellaneous. 
 
 Extension 16. The time for doing any act required by these Eules to 
 of time, &c. k e ^ one ma y ^ e extended by the Board of Trade, notwith- 
 standing that the time prescribed for doing the act may have 
 expired, and the Board of Trade may, if they think fit, in any 
 special case dispense with the performance by the company 
 or any objector of any act required to be done under these 
 Rules. 
 Interpreta- 17. In these Rules, unless the context otherwise requires, 
 
 tionof "The Act" means the Railway and Canal Traffic Act, 
 
 terms. 
 
 1888.
 
 APPENDIX S. 139 
 
 Words importing the singular number include the plural 
 number, and words referring to persons shall be deemed 
 to refer by that expression to corporations and bodies of 
 persons. 
 
 By the Board of Trade, 
 
 COURTENAY BOYLE, 
 Assistant Secretary, 
 
 Railway Department. 
 Dated the day of 1888. 
 
 APPENDIX. 
 
 FORMS. 
 
 No. 1. Proposed Classification of Merchandise Traffic and 
 Schedule of Maximum Bates and Charges. 
 
 INSTRUCTIONS. 
 
 1. If the existing maximum rates in respect of the various 
 items in any class cannot be easily tabulated, such rates 
 should be set out against each item or group of items. 
 
 2. In the case of each class of traffic the company should 
 state the amount of the terminal charges proposed to be 
 authorised, specifying closely the various services in respect 
 of which such charges are to be made, the amount intended 
 to be charged for each service, and the amounts at present 
 charged. 
 
 3. The proposed rates and charges for small packages (not 
 exceeding 500 Ibs. in weight), parcels, and merchandise 
 traffic in passenger trains arc to be stated as indicated in the 
 Form.
 
 140 HAIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 I. MINERAL TRAFFIC. 
 CLASS A. 
 
 [State how carried, and other particulars.] 
 [Set out list of articles.] 
 
 MAXIMUM KATES. 
 
 PROPOSED MAXIMUM RATES. 
 
 PROPOSED TER- 
 MINAL CHARGES. 
 
 a 
 
 
 
 
 
 
 For first 
 Miles, or 
 any part of such 
 distance. 
 
 * For next 
 Miles, or 
 any part of such 
 distance. 
 
 For the 
 Remainder of the 
 distance. 
 
 
 | 
 
 r a KHK1XY 
 
 IVATIONS. 
 
 
 
 
 Nature of 
 
 ^ 
 
 
 
 I 
 
 a v 
 
 *< 
 
 3 
 
 a* i -g 
 
 rJ 
 
 .So3 
 
 44 
 
 n5 
 
 Charge. 
 
 
 I 
 
 1 
 
 O 
 
 11 
 
 11 
 
 5 1 
 
 Si 
 
 Efl 
 
 2 a 
 
 (- d 
 
 I'i 
 
 5 a 
 
 
 o 
 
 I 
 
 B 
 M 
 
 
 H 
 
 n 
 
 
 PH P. 
 
 48, 
 
 *& 
 
 {1 
 
 XK 
 
 l| 
 
 
 
 H 
 
 
 t 
 
 t 
 
 
 
 
 
 
 
 
 
 
 
 
 
 * 
 
 rates 
 
 The ad 
 in thi 
 
 option 
 8 Table 
 
 of a sj 
 is not 
 
 stom < 
 to be 
 
 f gradi 
 taken a 
 
 lated 
 an 
 
 
 Note. It 
 should be 
 
 
 
 
 
 intimation that such a system or mode of 
 
 
 stated under 
 
 
 
 
 
 charging is prescribed by the Board of Trade, 
 f- State the number of trucks. 
 
 
 what circum- 
 stances each 
 
 
 
 
 
 J State the number of tons per truck load. 
 
 
 terminal 
 
 
 
 
 
 
 
 charge is pro- 
 
 
 
 
 
 
 
 posed to be 
 
 
 
 
 
 
 
 made. 
 
 

 
 APPENDIX B. 141 
 
 CLASS B. 
 
 [State how carried, and other particulars. ,] 
 [Set out list of articles.'] 
 
 MAXIMUM KATES. 
 [As above. ,] 
 
 [N.B. This classification to be continued for the different 
 classes of goods traffic.] 
 
 ANIMAL CLASS. 
 
 EXCEPTIONAL AKTICLES. 
 
 SMALL PACKAGES, PAECELS, AND MERCHANDISE 
 TKAFFIC CONVEYED BY PASSENGER TRAINS. 
 
 REGULATIONS AS TO MERCHANDISE TRAFFIC.
 
 142 It AIL WAY AND CANAL TRAFFIC ACT, 1888. 
 
 No. 2. Advertisement. 
 THE EAILWAY AND CANAL TKAFFIC ACT, 1888. 
 
 PROPOSED REVISION OF CLASSIFICATION AND BATES AND 
 
 CHARGES FOR MERCHANDISE TRAFFIC. 
 
 [Name of Company.] 
 
 Notice is hereby given that, pursuant to the Railway and 
 Canal Traffic Act, 1883, this company has submitted to the 
 Board of Trade a proposed revised classification of merchan- 
 dise traffic, and revised schedule of maximum rates and 
 charges applicable thereto, proposed to be charged by this 
 company; and that in such proposed classification 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 schedule 
 can be obtained at the price of one shilling at the principal 
 office of the company [here state the address], or from any 
 station-master of the company. 
 
 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 transmit to the company at its prin- 
 cipal office [here state the address] a copy of the notice of 
 objection, otherwise the objection will be liable to be dis- 
 missed without being heard. 
 
 Due notice will be given at the time appointed by the 
 Board of Trade for hearing and disposing of notices of 
 objection. 
 
 Secretary.
 
 APPENDIX J5. 
 
 143 
 
 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 
 objector'], hereby give notice that I object to the parts of 
 the proposed classification of merchandise traffic and schedule 
 of rates 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.
 
 144 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 RULES MADE UNDER THE PROVISIONS OF THE 
 RAILWAY AND CANAL TRAFFIC ACT, 1888, SO 
 FAR AS REGARDS CANALS AND NAVIGATIONS 
 MADE UNDER OR ON WHICH TOLLS ARE 
 LEVIED BY AUTHORITY OF PARLIAMENT. 1 
 
 REVISED CLASSIFICATIONS OF TRAFFIC AND SCHEDULES OF MAXIMUM 
 RATES, TOLLS, DUES, AND CHARGES. 
 
 ARRANGEMENT AND CONTENTS. 
 
 Proposed Classification and Schedule. 
 
 1. Form of proposed classification and schedule. 
 
 2. Time for submission of classification and schedule, printing, &c. 
 
 3. Existing maximum rates, tolls, dues, and existing terminal charges, 
 
 when and how to be stated. 
 
 4. Additional documents to be forwarded to Board of Trade. 
 
 5. Advertisements. 
 
 6. Advertisements in toll-collection offices. 
 
 7. Copies of classification, &c. to be kept by company for sale. 
 
 8. Fees and expenses. 
 
 Objections. 
 
 9. Form of notice of objection. 
 
 10. Signature and address of objector. 
 
 11. Transmission of notices of objection. 
 
 12. Notice of objection to be sent to company. 
 
 13. Grounds of objection to be stated. 
 
 14. Hearing of objections. 
 
 15. Default in attendance on hearing of objections. 
 
 Miscellaneous. 
 
 16. Extension of time, &c. 
 
 17. Interpretation of terms. 
 
 1 Cf. sect. 24.
 
 APPENDIX B. 145 
 
 APPENDIX. 
 
 FORMS. 
 
 No. 1. Proposed classification of merchandise traffic, and schedule of 
 
 maximum rates, tolls, dues, and charges. 
 No. 2. Advertisement. 
 No. 3. Notice of objection. 
 
 RULES. Cf. sec. 5. 
 
 [N.B. The Rules will apply to every canal company as above defined, 
 that is, to every person being the owner or lessee of, or working, or entitled 
 to charge tolls for the use of any canal or navigation constructed or carried 
 OH under any Act of Parliament: and the expression "company" in the 
 Rules includes any such person.] 
 
 Proposed Classification and Schedule. 
 
 1. The revised classification of merchandise traffic and re- Form of 
 vised schedule of maximum rates, tolls, dues, and charges P ro P? M( * 
 applicable thereto to be submitted by every canal company tiorTancT 
 to the Board of Trade under the Act (in these rules referred schedule, 
 to as " the proposed classification and schedule ") shall be, as 
 far as practicable, in the Form No. 1 in the Appendix, with 
 such variations as circumstances may require. There shall 
 be fully stated in the proposed classification and schedule, 
 amongst other things : 
 
 (a.) 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 bo made. 
 (&.) As far as practicable, the existing maximum rates, 
 tolls, and dues which the company are authorised 
 to charge and levy for the goods mentioned in tho 
 classification, stating in each case the authority 
 for making and levying the rate, toll, or due. 
 
 1.
 
 146 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 (c.) 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. 
 
 Time for 2. The proposed classification and schedule shall be sub- 
 submission mitted to the Board of Trade as soon as may be after the 
 
 f 1 * 
 
 caUol and ^ a * e ^ these Kules. It shall be in print, and must be 
 schedule, printed on one side only of the page of paper, so as to leave 
 printing, ^e back of the page blank. Three printed copies must be 
 transmitted to the Board of Trade, one of which must be 
 sealed with the seal of the company and signed by the 
 secretary or principal officer if the company has no secretary. 
 If the company has no seal that fact must be stated, and the 
 copy signed by the company's secretary or principal officer 
 if there is no secretary. At the end of the proposed classi- 
 fication and schedule, or on some conspicuous part of the 
 print thereof, a notice must be inserted stating that objec- 
 tions 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 " Kail way 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. 
 
 Existing 3. Where the company are unable to set out in the pro- 
 maximum p Ose( i classification and schedule statements of the existing 
 dues,' and ' maximum rates, tolls, and dues, and the existing terminal 
 existing charges in respect of the several classes of traffic mentioned 
 in the proposed classification and schedule, the company 
 when and shall transmit with the proposed classification and schedule 
 ^ * a printed statement, made out in a tabular form, showing, as 
 
 far as practicable, the existing maximum rates, tolls, and 
 dues for merchandise traffic which the company are autho- 
 rised to charge and levy, and the existing terminal charges, 
 showing the authority for each of them. Where the state- 
 ment cannot be made out in a tabular form, the several rates, 
 tolls, dues, and terminal charges 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 
 documents must also be sent three printed copies of the following :
 
 APPENDIX B. 147 
 
 (a.) A statement and map showing the lines of canal to to bc for - 
 which the proposed classification and schedule are fa&rd of 
 
 to apply, specifying with respect to each line of Trade. 
 canal 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, tolls, or charges in respect 
 of any canals, stations, aqueducts, tunnels, or other 
 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 
 submitted. 
 
 5. (I.) The company shall, within one week from the Advertiie- 
 date of the submission to the Board of Trade of the pro- 
 posed classification and schedule, publish advertisements of 
 the fact that a proposed classification and schedule have been 
 submitted to the Board of Trade 
 
 (a.) In the London, Edinburgh, or Dublin Gazette, ac- 
 cording as the line of canal or navigation affected 
 is situate or partly situate in England, Scotland, or 
 Ireland. 
 
 (&.) 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 chairman or principal officer of the 
 company shalt select. 
 
 (c.) At every toll-collection office on the company's system. 
 
 The advertisement shall be in the Form No. 2 in the 
 
 Appendix, with such variations as circumstances may require, 
 
 and there shall be set out therein, amongst other things, the 
 
 following statements : 
 
 (d.) That any one wishing to raise objections to the pro- 
 posed classification and schedule may forward by 
 post a notice of objection to the Board of Trade in 
 the prescribed form, marked on the outside of tho 
 cover enclosing it " Railway and Canal Traffic Act, 
 1888," on or before the expiration of eight weeks 
 from the date of the first advertisement. 
 
 L 2
 
 148 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 Advertise- 
 ments in 
 toll-collec- 
 tion offices. 
 
 Copies of 
 classifica- 
 tion to be 
 kept by 
 company 
 for sale. 
 
 Fees and 
 expenses. 
 
 (e.) The date on which the term of eight weeks expires. 
 
 (/.) That eveiy objector must at the same time that he 
 forwards his notice of objection to the Board of 
 Trade transmit to the secretary or principal officer 
 of the company at its principal office a copy of the 
 notice of objection. 
 
 (gr.) 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 application to the principal toll collector at, or 
 person in charge of, any toll-collection office. 
 
 6. Each advertisment at a toll-collection office shall be 
 printed in large type, and posted in a conspicuous place in 
 the office. 
 
 7. Printed copies of the proposed classification and schedule 
 shall be kept at the principal office of the company, for sale 
 to any applicant, and shall be obtainable from the principal 
 toll collector at, or person in charge of any toll-collection 
 office, at the price of one shilling per copy. 
 
 8. The company shall, with the proposed classification and 
 schedule, transmit to the Board of Trade the sum of 50, 
 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 arising 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 50. 
 
 Objections. 
 
 9. Every objection must be submitted to the Board 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 
 
 and address ma ki n pr the objection, or, where the objection is by a com- 
 ofoujector. s , J ' . ' * 
 
 pany or body or association ot pertons, by some person or 
 
 persons on behalf of the company, body, or association, and 
 shall state a postal address to and at which notices may be 
 
 Form of 
 notice of 
 obje< tion. 
 
 Signal ire
 
 APPENDIX B. 149 
 
 served or communications addressed to the objector or 
 objectors. 
 
 11. Every notice of objection shall be transmitted by post Transmis- 
 to the Board of Trade within eight weeks from the date of sio " of 
 the first advertisement of the submission of the classification objection. 
 and schedule to the Board of Trade, and there shall be 
 marked on the outside of the cover enclosing each notice of 
 objection " Railway and Canal Traffic Act, 1888." 
 
 12. A copy of every notice of objection must at the same Notice of 
 time be sent to the company affected thereby, by prepaid objection 
 letter, addressed to the secretary or other principal officer of to com-" 1 
 
 the company at its principal office. 
 
 13. Every notice of objection shall state clearly and as Grounds of 
 concisely as possible, by reference to the proposed classifi- objection 
 cation and schedule, the precise portion of the classification 8 atec | 
 
 or schedule objected to, and the grounds of objection. 
 
 14. At such time after the expiration of eight weeks from Hearing of 
 the date of the first advertisement of the submission of the objections. 
 proposed classification and schedule to the Board of Trade, a 
 
 time and place shall be appointed by the Board of Trade for 
 disposing of the objections which have been duly lodged 
 with the Board of Trade, notice whereof shall be given by 
 post to the secretary or other principal officer of the company, 
 and to each objector at the address mentioned in the notice 
 of objection. 
 
 15. If any objector or the company fails or fail to attend Default iu 
 at the time appointed for disposing of objections, the Board attendanc 
 
 f r 11 _ on hearing 
 
 of Trade may proceed to dispose of the matter in the absence O f objec- 
 of any of the parties interested, or may adjourn the hearing tions - 
 of the matter. 
 
 Miscellaneous. 
 
 16. The time for doing any act required by these Rules to Extension 
 be done may be extended by the Board of Trade, notwith- oftinie .* c - 
 standing that the time prescribed for doing the act may have 
 expired, and the Board of Trade may, if they think fit, in 
 
 any special case dispense with the performance by the com- 
 pany or any objector of any act required to bo done under 
 these Rules.
 
 150 RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 Interpre- 17. In these Eules, unless the context otherwise requires, 
 tation of The Act meang the R a ii way an( j Canal Traffic Act, 
 
 1888. 
 
 Words importing the singular number include the plural 
 number, and words referring to persons shall be 
 deemed to refer by that expression to corporations 
 and bodies of persons. 
 
 " Station " means any place on a canal where tolls and 
 dues are levied. 
 
 APPENDIX. 
 
 FORMS. 
 
 No. 1. Proposed Classification of Merchandise Traffic on Canals, 
 and revised Schedule of Maximum Bates, Tolls, Dues, and 
 Charges applicable thereto. 
 
 INSTRUCTIONS. 
 
 1. If the existing maximum rates and tolls in respect of 
 the various items in any class cannot be easily tabulated, 
 such rates and tolls should be set out against each item or 
 group of items. 
 
 2. In the case of each class of traffic the company should 
 state the amount of the terminal charges proposed to be 
 authorised, specifying closely the various services in respect 
 of which such charges are to be made, the amount intended 
 to be charged for each service, and the amounts at present 
 charged.
 
 APPENDIX B. 
 
 151 
 
 I. MINERAL TRAFFIC. 
 
 CLASS A. 
 
 [Set out list of Articles.'] 
 MAXIMUM TOLLS, DUES, AND TERMINAL CHARGES. 
 
 Proposed Maximum Tolls and Dues. 
 
 Proposed Maximum 
 Terminal Charges. 
 
 Observations. 
 
 Existing Maximum 
 Tolls and Dues. 
 
 L 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. 
 
 Tneadoptit 
 rates In this t 
 an intimatlo 
 nude of char 
 Board of Trac 
 
 >n 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, <fcc. . . ib.
 
 INDEX. 213 
 
 PLEADING continued. 
 applicai ion continued. 
 
 to be signed . . . . . . . . . . . . 161 
 
 indorsed .. .. .. .. .. .. ib., 170 
 
 form of ib., 189 
 
 indorsement .. .. .. .. .. 190 
 
 under sect. 6 of Act of 1873 162 
 
 in respect of sidings and special Acts .. .. .. ib. 
 
 under sect. 8 of Act of 1873 ib. 
 
 sect. 9 of Act of 1873 ib. 
 
 sect. 10 of Act of 1873 ib. 
 
 (working agreemeuls) .. ib. 
 
 sect. 25 of Act of 1888 163 
 
 as to rate books by summons .. .. .. .. 164 
 
 canals under sect. 17 of Act of 1873 .. .. 165 
 
 tolls under sect. 8 of Act of 1888 166 
 
 group rates .. .. .. .. .. .. 166 
 
 railway controlling canals .. .. .. ' .. ib. 
 
 claim for damages .. .. .. .. ..167 
 
 payment into court .. .. .. .. 168 
 
 filing 169 
 
 service of .. .. .. .. .. .. .. 170 
 
 Answer .. .. .. .. .. .. .. .. 172 
 
 time for delivering .. .. .. .. .. ib. 
 
 filing .. .. .. .. .. .. .. ib. 
 
 copies left with Registrar .. .. .. .. ib. 
 
 form of 191 
 
 Ik-ply 172 
 
 time for delivering .. .. .. .. '.. ib. 
 
 filing and rules as to .. .. .. .. .. 173 
 
 form of 191 
 
 enlargement of time for .. .. .. .. .. 187 
 
 amendment of .. .. .. .. .. .. 186 
 
 after reply.. .. .. .. .. .. .. 173 
 
 close of . . . . . . . . . . . . ib. 
 
 by implied joinder .. .. .. .. .. ib. 
 
 issues may be settled .. .. .. .. .. ib. 
 
 point of law raised in .. .. .. .. .. 174 
 
 PORTS : See DOCK COMPANIES HARBOUR BOARDS . . . . 84 
 
 POSTMASTER-GENERAL, 
 
 exempted from operation of sect. 24 -. . . . . . . . 58 
 
 difference between, and any company referred to Commis- 
 sioners .. .. .. .. .. .. .. 167 
 
 POWERS; 
 
 of Commissioners where railway company control canal 
 
 traffic 96 
 
 PREFERENCE: See UKDUK PREFERENCE. 
 
 recovery of charges paid in respect of undue preference .. -I-'! 
 
 may l>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
 
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 EMDEN'S SHAREHOLDER'S LEGAL GUIDE. A Concise 
 
 Statement of the Law relating to Shares, and of the Legal Rights and Responsibilities of Share- 
 holder*. By ALFRED EMDEN, Barrister-at-Law, Author of " Practice in Windmg-up Companies &c. 
 nden is a recognised authority on the law relating to public companies, and the clear and 
 ement he here gives of the legal rights and responsibilities of shareholders well supplies a felt 
 
 " Mr. Em 
 concise Mat 
 want." Economist. 
 
 27, 
 
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