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required for the accommodation of traffic in lines other than that from Haverford to Pembroke. The defendant took a passenger in his boat from Nayland Point, who, when afloat, ordered him to Hobbes's Point, saying he was going to Pembroke. The question was, whether these facts proved a disturbance of the ferry and it was answered in the negative. The Court describes a disturbance to be either by carrying from point to point, or by constructing a landing-place at a [*62 short distance from one terminus of the ferry, and carrying passengers thereto who were in reality passing along the line of way on which the ferry is situate. But, as it appeared in the case there were other places than Pembroke to which the passenger might be going from Hobbes's Point, without or before going to Pembroke, and if there was a convenience to him in landing at Hobbes's Point, which he could not have had by landing at Pembroke Point, he would not evade the plaintiff's ferry by landing at Hobbes's Point.

In the last two cases, the ferry was backwards and forwards, and the question arose in respect of the terminus ad quem. The law would. have been precisely the same, as far as the consideration of convenient accommodation operates, if the question arose respecting the terminus à quo, as it necessarily does in this case, where the ferry is only one way. But these general principles, and their specific application to Potter's Ferry, were considered in Matthews, app., Peache, resp., 5 Ellis & B. 546 (E. C. L. R. vol. 85), and the judgment was decisively in point for the defendants. The information was for plying as waterman, without a license. The defence was, that the defendant was exempt as a ferryman ferrying in Potter's Ferry from Cubitt's Dock, which is 800 yards from Potter's Ferry Stairs, to Greenwich. The Court decided that the ferry is from the stairs, and not from the Isle of Dogs to Greenwich, the indefinite words of the conveyance being defined by the exercise of the right; and that therefore the exemption for ferries did not extend to Cubitt's Dock, distant 800 yards. A fortiori it does not extend to Cubitt's Pier, which is 1280 yards distant from the ferry.

Therefore, upon principle and authority, it appears that the plaintiffs have neither the privileges nor the burthens of a ferry from Cubitt's Pier, and that all the *Queen's subjects being at [*63 Cubitt's Pier, whether from Poplar or elsewhere, have a right to use the highway of the Thames therefrom either to Greenwich or elsewhere at their free will and pleasure, either by wherries or steamer. It follows that no right of the plaintiffs is shown to have been infringed by the defendants, and that the defendants are entitled to our judgment. Judgment for the defendants.

The question raised in Newton v. Cubitt assumes in this country a somewhat different shape, though substantially the same point is presented for determination. Whether any infringement has been made upon the franchise becomes, by virtue of the prohibition

against impairing the obligation of con

This

tracts, a constitutional question.
clause of the constitution is a protection
against legislative violations of the fran-
chise, and thus brings the question back
to the common law point, viz. what con-
stitutes an infringement upon the fran-
chise.

Chancellor Kent's statement of the

law, quoted by the learned serjeant for the plaintiffs, was accurate at the time it was written; but The Charles River Bridge Co. v. The Warren Bridge Co., 11 Peters 420, reversed the law upon this point. Mr. Justice Story in his dissenting opinion gives an elaborate résumé of the common law. But the doctrine of expediency prevailed. The confines of exclusion on either side of the line of travel, being indefinite, were held not to exist. Compensation for the violation of a nonentity was naturally not to be thought of; yet Prof. Greenleaf, in his attempt at the justification of the decision of the Court, argues that compensation should be made by the legislature a most illogical sequence: Greenleaf's Cruise on Real Property, tit. "Franchises," § 29, note. Where the charter defined the limits within which the franchise was to be exclusive, compensation must be made: The

Enfield Bridge Co. v. The Hartford and New Haven Bridge Co.,17 Conn. (1845) 40. A free ferry is an invasion of the franchise, which aggravates the nuisance: Aikin v. The Western Railroad Company, 6 Smith (New York Court of Appeals, 1859) 370. A legislative provision, however, that, if the plaintiffs would erect and maintain a bridge, the ferries between the two opposite towns should be for ever discontinued, was held not to incapacitate the legislature from chartering another company to establish a ferry between the same towns: Hartford Bridge Co. v. Union Ferry Co., 29 Conn. (1860) 210. See also Bridge Proprietors v. Hoboken Co., 2 Wallace (U.S Supreme Court, 1864) 116. The cases upon the subject are fully collected in Greenleaf's Cruise, supra, and in the 10th ed. of Kent's Com., 1 vol., 618-19, notes.

BRANLEY v. THE SOUTH EASTERN RAILWAY COMPANY.

May 12.

The legality of a contract is determined by the lex loci contractus.

A railway Company incorporated for the conveyance of passengers and goods from London to Folkstone under Acts of Parliament which prohibited them from making unequal charges, obtained another Act enabling them to establish a communication by steam-vessels with Boulogne, which last-mentioned Act contained no provision as to equality of rates for the carriage of goods. There was nothing in the law of France which disabled the Company as public carriers from making such contracts for that purpose as they might think most for their own interest. The Company by their tariff charged certain rates for small parcels, with a double charge for "packed parcels :"-Held, that, so far as regarded the contract for the carriage of such parcels from Boulogne to London, there was nothing illegal in this increased charge.

THIS was an action brought against the South Eastern Railway Company to recover back sums alleged to have been improperly exacted by them from the plaintiff for the carriage of parcels from Boulogne to London.

The declaration consisted of a count for money received and for money found due upon accounts stated. The defendants pleaded never indebted.

The cause was tried before Erle, C. J., at the sittings in London after last Trinity Term, when the following facts appeared in evidence: The plaintiff is a carrier whose business it is to collect small parcels at Boulogne, to be forwarded to London, viâ Folkstone, by means of what are called "packed parcels" addressed to Messrs. Wheatley & Co., Leadenhall Street, London, *and to receive in like manner parcels from London for distribution at Boulogne.

*64]

The defendants are a railway Company also carrying on business as carriers from London to Dover and Folkestone under the authority of the 6 W. 4, c. lxxv., and several subsequent statutes, (a) and also carrying on a communication by means of steam-vessels between the ports of Folkestone and Dover, and those of Boulogne and Calais, under the authority of the 16 & 17 Vict. c. clvi.

By the 17th section of one of their Acts, 2 Vict. c. xlii., the Company were bound to charge to all persons alike for the conveyance of the like goods under the like circumstances; (b) and by their tariff, which was put in, a certain scale of charges was provided for parcels and packages up to the weight of 112 lbs., with an intimation that packed parcels" would be charged *double those rates. The [*65 Company's right to this increased charge for packed parcels was negatived by this Court in the case of Piddington v. The South Eastern Railway Company, 5 C. B. N. S. 111 (E. C. L. R. vol. 94), where the contract was made in London, for the conveyance of packed parcels to Boulogne: and the question was whether the same rule was to be applied to parcels delivered to the Company at Boulogne to be delivered in London.

On the part of the plaintiff, it was insisted that the contract, having been made in France, though it was to be performed in England, was to be governed by the French law; and to prove this M. Jules Bourdaloux, an advocate, was called. He stated that he was acquainted with the French law relating to the transport of merchandise; that, in France, carriers are of two sorts, viz. public carriers, such as railway Companies, whose charges are regulated by a general law, and private entrepreneurs, whose charges are regulated by agreement; that the French law does not apply to English Companies, who are merely considered as private entrepreneurs; that, before the formation of railways in France, there was no law fixing a tariff for public Companies; and that, if they took goods without agreement, they must take the prices fixed by the tribunal, which would probably be the reasonable prices as usually charged by carriers; and that the railway Companies in France had attempted to prevent the transmission of packed parcels (colis groupés), and that, after some contrariety of decision, the Court of Cassation had ultimately decided against them. It was admitted, for the purpose of the cause, that the Company incurred no additional trouble or risk from the transmission of packed parcels.

On the part of the defendants, it was submitted that this contract,

(a) The 7 W. 4 & 1 Vict. c. xciii., 2 & 3 Vict. c. xlii., 2 & 3 Vict. c. lxxix., 3 & 4 Vict. c. lvi, 5 & 6 Vict. Sess. 2, c. iii., 6 & 7 Vict. cc. li., lii., and lxii., 7 & 8 Vict. cc. xxv., lxix., and xci., 8 & 9 Vict. cc. clxvii., clxxxvi., excvii., and cc. 9 & 10 Vict. cc. lv., lvi., & lxiv., cccv., and cccxxxix., 10 & 11 Vict. cc. civ., and cexxx., 13 & 14 Vict. c. xxxi., and 15 Vict. c. ciii. (b) "The charges by the said recited Acts or either of them authorized to be made for the carriage of any passengers, goods, animals, or other matters or things to be conveyed by the said company, or for the use of any steam-power or carriage to be supplied by the said Company, shall be at all times charged equally to all persons, and after the same rate per mile, or per ton per mile, in respect of all passengers, and of all goods, animals, or carriages of a like description, and conveyed or propelled by a like carriage or engine passing on the same portion of the line; and no reduction or advance in any charge for conveyance by the said Company, or for the use of any locomotive power to be supplied by them shall be made either directly or indirectly in favour of or against any particular Company or person travelling upon or using the same portion of the said railway."

having been made in France, must be governed by the French *66] law, and that there was nothing in the French law, as proved by M. Bourdaloux, to negative the right of the Company to charge the sums mentioned in their tariff, which must be assumed to have been the basis of their contract with the plaintiff. And reliance was placed upon the 129th and 133d sections of the 6 W. 4, c. lxxv., and the 16th and 17th sections of the 16 & 17 Vict. c. clvi.(a)

*A verdict was entered for the plaintiff for 117. 19s. 11d., the

*67] amount of the alleged overcharges, leave being reserved to the

defendants to enter a verdict for them, if the Court should be of opinion that there was no evidence to go to the jury of the defendants' liability.

T. Jones, in Michaelmas Term last, obtained a rule nisi accordingly. Lush, Q. C., and J. Brown showed cause.-The right of railway Companies to charge an additional or increased rate for the conveyance of packed parcels was negatived by the Court of Exchequer in Crouch v. The Great Northern Railway Company, 9 Exch. 556,† 11 Exch. 742,† and by this Court in Piddington v. The South Eastern Railway Company, 5 C. B. N. S. 111 (E. C. L. R. vol. 94).(b) If that be the law where the parcel is delivered to the railway Company in England, can it make any difference that they receive the parcel at Boulogne, to which place they are authorized by the 16 & 17 Vict. c. clvi. to extend their traffic? (c) [WILLES, J., referred to Leroux v. Brown, 12 C. B. 801 (E. C. L. R. vol. 74), where the Statute of Frauds

(a) The 129th section of the 6 W. 4, c. lxxv., enacted that "it should be lawful for the said Company, and they were thereby authorized, if they should think proper, to use and employ locomotive engines or other moving power, and in carriages or wagons drawn or propelled thereby to convey upon the said railway and also along and upon any other railway communicating therewith, all such passengers, cattle, and other animals, goods, wares, and merchandise, articles, matters, and things, as should be offered to them for that purpose, and to make such reasonable charges for such conveyance as they might from time to time determine upon in addition to the several rates or tolls by that Act [ss. 126, 127] authorized to be taken: Provided always, that it should not be lawful for the said Company, or for any person using the said railway as carriers, to charge for the conveyance of any passenger upon the said railway any greater sum than the sum of 34d. per mile, including the toll or rate therein before granted." And s. 133 enacted "that it should be lawful for the said Company from time to time to make such orders for fixing and by such orders to fix the sum to be charged by the said Company in respect of small parcels (not exceeding 100 lbs. weight each) as to them should seem proper: Provided always, that the provision therein before contained should not extend to articles, matters, or things sent in large aggregate quantities, although made up of separate and distinct parcels, such as bags of sugar, coffee, meal, and the like, but only to single parcels unconnected with parcels of a like nature, which might be sent upon the railway at the same time."

The 16th section of the 16 & 17 Vict. c. clvi., enacts "that the South Eastern Company may charge for the conveyance of passengers in the steam-vessels worked or employed by them such reasonable rates as they think proper, not exceeding the rates following, to wit, passengers between Folkestone or Dover and Boulogne or Calais,-first class, 88. each; second class, 6s. each."

The 17th section enacts "that such steam-vessel rates shall be at all times charged to all persons equally and after the same rate in respect of passengers conveyed in a like vessel passing between any of the ports aforesaid under the like circumstances; and no reduction or advance in any such rate shall be made in favour of or against any person using the steamvessels, in consequence of such person having travelled over the whole or any part of the railway, or not having travelled upon any part thereof."

(b) See Baxendale v. The Eastern Counties Railway Company, 4 C. B. N. S. 63 (E. C. L. R. vol. 93).

(c) This statute is entirely confined to passenger traffic.

[*68

was held a bar to an action in the Courts of this *country brought to enforce a contract made at Calais,-the statute applying only to the procedure.] One gross sum is charged for the whole transit. [ERLE, C. J.-What can an English Company have to do with the coast of France ?] Are they to be absolved from all the obligations which the Acts of Parliament impose upon them, when they receive a parcel at Boulogne to be carried by them to London? Their status at Boulogne does not affect their contract to carry to London. They could not have possessed steam-vessels but for the 16 & 17 Vict. c. clvi.: The East Anglian Railways Company v. The Eastern Counties Railway Company, 11 C. B. 775 (E. C. L. R. vol. 73). [KEATING, J.— The Company could not perform the contract made at Boulogne without the assistance of the English Act of Parliament.] It is a fallacy to call this a contract made at Boulogne: there was no contract there; it was a mere bailment of the goods to the Company there. The Company can only contract in the manner and to the extent to which their Acts of Parliament authorize them to contract: and their contracts must be regulated and governed by the English law. Dr. Story seems to lay it down that the qualified authority to contract follows the Company into the foreign country. In § 51, he says: "All laws which have for their principal object the regulation of the capacity, state, and condition of persons, have been treated by foreign jurists generally as personal laws. They are by them divided into two sorts, those which are universal, and those which are special. The former (universal laws) regulate universally the capacity, state, and condition of persons, such as their minority, majority, emancipation, and power of administration of their own affairs. The latter (special laws) create an ability or a disability to do certain acts, leaving the party in all other respects with his general capacity or incapacity. But, whether laws purely personal belong *to the one class or to the other, they are for the most part held [*69 by foreign jurists to be of absolute obligation everywhere, when they have once attached upon the person by the law of his domicil. Boullenois has stated the doctrine among his general principles." 851 a, he proceeds,-" Froland, Bouhier, Rodenburg, Paul Voet, Pothier, and others (Abraham a Wesel, Stockmannus, and Merlin), lay down a similar rule." And, after citing passages from the works. of those distinguished jurists, he goes on, § 51 b,-"Paul Voet, on the other hand, speaks in far more qualified language, and lays down several rules on the subject,-1. That a personal statute only affects the subjects of the state or territory wherein it is promulgated, and not foreigners, although doing some business there, 'Statutum personale tantum officit subditos territorii ubi statutum conditum est; non autem forenses licet ibidem aliquid agentes.' 2. That, as a personal statute does not affect a person out of the territory, it cannot therefore be reputed to be the same without the territory as it is within. 'Statutum personale non officit personam extra territorium;

In

sic ut pro tali non reputetur extra territorium, qualis erat intra.' 3. That a personal quality cannot be added out of the territory to a person not a subject. 'Personalis qualitas non potest extra territorium addi personæ non subjectæ.' 4. A personal statute accompanies the person everywhere in respect to property (biens) situate within

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