1866. BAXENDALE V. SOUTH WESTERN RAILWAY Co. ss. 149, 155, 156 and especially 158, sometimes called the "equality clause," which contains a proviso that the Company shall not partially raise or lower the rates, tolls or sums payable "under this Act, but all such rates, tolls and sums shall be so fixed as that the same shall be taken from all persons alike under the same or similar circumstances." In actions against other railway Companies there have been decisions upon words the same, or nearly the same as this proviso. The case, having set out the material sections of the Act, states the heads of claim, and the grounds upon which each is made; and it then proceeds to state the facts on which the plaintiffs found their right to recover under each head. The first head is "overcharges upon consignment of goods, by charging for their carriage rates according to the weight of packages contained in these consignments taken separately, instead of tonnage rate upon the whole of the consignments by the plaintiffs of the same class of goods." Under this head various particulars are stated, and it shews the way in which packages were entered in the ticking-off note, which was delivered by the plaintiffs to the defendants with each consignment-that they were sometimes addressed to the persons to whom the plaintiffs intended to deliver them, but always had upon them a label with "Pickford & Co., Guildford Station." It is not necessary, however, to recapitulate the facts in detail; it is sufficient to say that, having carefully considered them we are of opinion that, as regards the first head of claim, the case is within the authorities cited as to packed parcels, and that the plaintiffs are entitled to recover. With regard to the second head of claim, the defendants' counsel very properly admitted that he could not support it, and therefore, upon that head, the plaintiffs are also entitled to recover. HILARY TERM, 29 VICT. The third head of claim is for "overcharges by charging upon goods carried for the plaintiffs by the defendants from Nine Elms to Southampton station, and thence to be forwarded by the plaintiffs to the Isle of Wight, rates which are higher than those charged to other persons under the same or similar circumstances." It appears that the defendants collected parcels in London, and carried them on their railway to their station at Southampton, and thence by means of a tramway to a wharf at Southampton; from whence, by means of steam-boats, they landed them on a wharf at Cowes or Newport, in the Isle of Wight. The defendants also carried for the plaintiffs from London to Southampton goods which the plaintiffs received at the Southampton station and delivered to their consignees at Southampton and in the Isle of Wight. It is said that the cost which the defendants incurred in carrying goods from Southampton to the Isle of Wight by tramway and steam-boats was less than that necessarily incurred by the plaintiffs in carrying goods for their customers from Southampton to the Isle of Wight, and we are called upon to determine what would be a proper deduction from the defendants' charge for carriage under one contract for the receipt of goods in London and delivery of them at Newport, when they carry to Southampton only. We consider that the defendants are entitled to do what they profess to do, viz., to carry on the business of common carriers from London, or any place in London, to Newport or other places in the Isle of Wight, and to use their railway so far as it is available, that is from London to Southampton, and then to act as carriers beyond their line, from Southampton to the Isle of Wight. Several cases were pressed upon us with the view of shewing that when a railway Company collects goods in L 2 1866. BAXENDALE v. SOUTH WESTERN RAILWAY Co. London or its immediate neighbourhood, and delivers them free of charge at a station on their railway some little distance off, the collection in the first instance and the subsequent delivery free of charge constitute an equality as regards parties who are charged the ordinary rate fixed by the Company when taking upon themselves the duty of collecting and delivering goods. We abide by these deci sions, but they are not applicable to the present case. In the decisions to which I refer, the collection and delivery of goods by the Company was auxiliary or subsidiary to their business, not as common carriers, but as carriers upon their line of railway. But when the defendants avail themselves of the opportunity of chartering steam-boats to carry goods from Southampton to the Isle of Wight, that is not subsidiary to their business as carriers upon their railway, but their real position is that they are common carriers from London to the Isle of Wight, availing themselves of their railway so far as it serves them for that purpose. Upon the facts stated we must regard what has been done as bonâ fide since there is no suggestion of mala fides, and so regarding it we think there is not necessarily an inequality. For these reasons we are of opinion that upon the first and second claims there must be judgment for the plaintiffs, but upon the third claim judgment must be entered for the defendants. Judgment accordingly. 1866. NOBLE v. WARD and Another. was Jan. 12. The plaintiff agreed with the defendants in writing, signed by the sell and deli- defendants, to THE HE first count of the declaration stated, that it agreed between the plaintiff and the defendants that the plaintiff would sell and deliver to the defendants, and that the defendants should accept from the plaintiff within a certain agreed period, which elapsed before suit, a large quantity of cloth at certain prices to be therefore paid by the defendants, and then agreed upon between the plaintiff Afterwards and the defendants; yet the defendants refused to accept or pay for the said cloth, although afterwards and before suit all things were done and happened, and all times elapsed necessary to entitle the plaintiff to have the said goods accepted and paid for by the defendants, whereby the plaintiff lost the difference between the price and the lower price to which the said fell, agreed and before breach the time for performing the contract was verbally extended for a fortnight. Held (there being neither acceptance nor payment goods under the ver Pleas. First: A denial of the alleged agreement. Second: That the plaintiff was not ready and willing to deliver the said cloth within the said agreed period and therein made default. Fourth: That after the alleged agreement, and before any breach thereof, it was agreed by and between the plaintiff and defendants that the said agreement should be rescinded, and the plaintiff and the defendants then rescinded the same accordingly.-Issues thereon. At the trial before Bramwell, B., at the Manchester Summer Assizes, 1865, the following facts appeared: -The plaintiff is a manufacturer at Great Harwood, and the defendants are merchants, carrying on busi bal arrangement) that the verbal arrangement arra was void and could not rescind the written con tract, which the plaintiff might there fore enforce. 1866. NOBLE V. WARD. EXCHEQUER REPORTS. ness in Manchester under the name of Ward, Armitage and Co. On the 12th of August, 1864, the defendants gave to the plaintiff an order in writing (signed by the defendants) for 500 pieces 32-inch grey cloth, &c., and 1000 pieces 35-inch grey cloth, &c., at specified prices, “to be delivered commence in three to four weeks, complete in eight to nine weeks," "same material, and as well made as sample piece delivered to-day." On the 18th of August, 1864, the defendants gave to John Hindle, the plaintiff's agent, a second order in writing (also signed by the defendants) for 500 pieces 32-inch grey cloth, &c., and 1000 pieces 35-inch grey cloth, &c., at specified prices, "to be delivered to follow on after order given 12th instant, and complete in ten to twelve weeks," "same materials, and as well made as sample pieces delivered on the 12th instant." On the 10th of September, 1864, the plaintiff made a first delivery to the defendants of 220 pieces on account of the first mentioned order, but the defendants refused to accept them, insisting that they were deficient in the reed. Afterwards, and prior to the 27th of September, 1864, the defendant made other deliveries on account of the first mentioned order, which were refused for the same reason. On the 27th of September, 1864, the plaintiff and defendants agreed to rescind and do away with the first mentioned contract, to extend for a fortnight the time for the performance of the contract of the 18th of August, 1864, and that the plaintiff should take back the goods delivered under the first mentioned contract. The goods delivered as aforesaid under the first mentioned contract were accordingly taken back by the plaintiff. On the 14th of October, 1864, the plaintiff delivered to the defendants 130 pieces of the said 35-inch cloth. On the 15th of October, 1864, the defendants wrote |