the contract would apply on different nights, but also to great differences in the purposes of the consignors. These being the facts relevant to the time of closing, I think that the company had good reason for fixing on halfpast six as the latest time for receiving goods under the contract, and that this Court ought not to compel them to incur the risk of numerous breaches of contract, and of numerous collisions, by interfering with the complex arrangements in subordination to each other above described. As to the second point, that some goods are received into the station after half-past six, and forwarded the same night, the affidavits in answer show that this is done by right and according to duty, the company having a right to forward goods at any time, and a duty to forward them at all times without delay. There must be a limit of time as to when the contract is to attach, and the party claiming to come in under that contract must comply with that limit; and as the applicant claims that his goods should be received and forwarded under the contract, they are properly excluded when not within the time limited for the contract. With respect to the charge that goods are received after half-past six, and forwarded the same night, as far as the complaint is general the answer must be equally general, and it shows classes of cases where the facts complained of are done lawfully and properly, without causing undue prejudice to any one. Thus it appears that the general rule above mentioned for closing the gates at half-past six, and excluding vans after that time, is subject to exception at the discretion of the superintendent, according to circumstances, such as goods for shipment on a ship about to sail, perishable goods, accidental delays on the road, and the like; and that the complainant has had the benefit of this exception impartially with all other customers. Thus, also, with respect to admitting some of the vans of the railway 1866. PALMER v. LONDON & 1866. PALMER d. SOUTH WESTERN RAIL. CO. company after half-past six: it appears that there are thirty-seven receiving-houses, and several carmen collectLONDON & ing for several receiving-houses lying in several lines from the circumference of collection towards the centre several times in a day, and that the last collection begins at the circumference at half-past four; and, as the quantities vary, each carman is detained more or less as he approaches the station, and so is often admitted after half-past six, and the goods are then forwarded as far as can be conveniently done; and it further appears that, in several receivinghouses, goods are sorted and weighed, and invoiced and made fit for immediate forwarding, which cannot be done by a stranger to the company, and that there is reason for admitting vans so loaded from those houses at a later hour, and forwarding those goods from these receivinghouses. The goods for the earliest trains may be sorted from the goods for the later trains, and sent forwards, according to the station, in time for performing the contract as to those goods; but this species of sorting must be done by agents for the company, as a mistake in sorting would make them liable for a breach of contract. These being the facts, and half-past six being shown to be the proper hour for closing, in reference to the contract, if this rule is made absolute, it must be in effect for an injunction against forwarding any goods at all received after half-past six. The consequence of such an injunction would be that the applicant would have a contingent possibility of being employed to cart some of the goods now carted by the railway company, that is, in case the consignors of such goods were induced by reason of the delay to consign to the railway through him, instead of to the railway direct. On the other hand, the consignors of all the goods detained would suffer twenty-four hours useless delay; the railway company would have to warehouse those goods for twenty-four hours, and the complex arrangements above described would be disturbed. As to receiving the goods after half-past six, all parties are at liberty to receive at the receiving-houses at all hours any goods. The only question is in respect to the obligation to forward. That obligation only attaches when the contract attaches; but where the contract does not attach, still the company has and ought to have the option of forwarding the goods at any time, and violates no right in doing so. The affidavits of the Defendants are positive, that the vans admitted after half-past six are so admitted without any partiality or improper motive; and I see no reason for disbelieving them. If we granted an injunction against forwarding in the night any goods, unless received at the station before half-past six, we should defeat the purpose of the statute under which we are acting, as that statute (sect. 2) enacts, that every railway shall afford all reasonable facility for receiving, forwarding and delivering traffic on their railway. The proposed injunction would, as it seems to me, cause a violation of the duty thus created, if it caused useless delay. So the matter would have stood if it had been res integra, but it is said we are concluded by authority, and that the cases of In re Baxendale v. The South-Western Railway Company (a) and In re Garton v. The Bristol and Exeter Railway Company (b) are in point. In answer to this, I beg to say that the argument from authority seems to me to be without conclusive force in guiding the exercise of this jurisdiction; the question, whether undue prejudice has been caused, being a question of fact, depending on the facts proved in each case. The legislature intended, by the Traffic Act, to facilitate the transport, that is, the receiving, forwarding 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 relating to transport of traffic, by issuing an (b) 6 C. B, N.. S. 639. (a) 12 C. B., N. S. 758. 1866. PALMER v. LONDON & 1866. PALMER v. LONDON & WESTERN injunction against undue prejudice; and, as the terms "undue prejudice" are unlimited, any operation may be within them; so that the power is, in effect, arbitrary, and is not subject to any review either in respect of the RAIL. Co. questions of fact or law. The injunction is a severe infliction as a censure, as a fine in the shape of costs, and as an interruption in the conduct of a very complicated and important business, the directors being subject to imprisonment, and the company being liable to a fine not exceeding 2007. per day for disobedience to an injunction; also it is a proceeding in which the railway company can never gain anything, and must always lose something in the shape of costs. The legislature, assuming that some directors would suppose themselves to be above the control of the law, seems to have created this anomalous jurisdiction to bring them down to the level of the law in case of need, and intrusted such a power to this Court, in the confidence that the rights of railway companies, under the law, would here be securely protected. In exercising this jurisdiction and granting an injunction, it seems to me that the Court has to consider the conflict of affidavits and ascertain therefrom what is the complaint, whether the public have any interest in it, and whether any fair interests of the railway company are involved in it, and whether the directors intentionally violate their duty towards the public or their company, or the complainant. I recite these considerations for the purpose of supporting my opinion that the grounds for this extraordinary interference must, in each instance, in their nature be almost singular, and scarcely ever afford any guidance for deciding a subsequent application for an injunction. In confirmation of this opinion, I rely upon the course taken by this Court in granting an injunction against this company at the suit of Mr. Baxendale. I concurred in that decision because I considered myself bound by the precedent in Garton v. The Bristol and Exeter Railway Company (a). In each case the gates of the goods station had been closed against the public in general at a fixed hour, and the vans of the company were supposed to be admitted after that hour, and as such admission was decided to be an undue prejudice to Mr. Garton, this Court was induced to decide that an admission of the vans of this company (the South Western) was also an undue prejudice to Mr. Baxendale. On the authority of these two cases, Mr. Palmer now moves for another injunction, and I have been thus obliged either to grant every such application or to reconsider the question of authority, and I have come to the conclusion that it ought not to bind in the manner that a precedent in law binds. I do not presume to discuss the merits of Mr. Garton's case, as I was not a party to it. I assume it must have been properly decided; but still it is not a precedent that must be always followed wherever the vans of the company are admitted into a station after it is closed against the public. I do not know whether in Gurton's case (a) the affidavits of the officers of the company were disbelieved, and the motives of the directors discredited, or whether the interest of the collecting carrier was considered of more importance to the public than the interest of the railway company; such considerations appear to have had weight with the Court in some of the cases against the Great Western Railway Company. None of these considerations appear to me to be relevant against the directors of this company; in my opinion they have done their duty in the conduct of their business, and ought not to be interfered with on the complaint now before us. I am further confirmed in this view by the consequence of the injunction granted at the suit of Mr. Baxendale. I thought at the time it was granted that the Defendants had been doing their duty in a proper manner; neverthe 1866. PALMER บ. LONDON & (a) 6 C. B., N. S. 639. VOL. I.-C. P. 3 H |