Scottish Court of Session Decisions

The Railway and Canal Traffic Act 1888 (51 and 52 Vict. cap. 25) enacts—Section 31—“(1) Whenever any person receiving or sending or desiring to send goods by any railway is of opinion that the railway company is charging him an unfair or unreasonable rate

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of charge, or is in any other respect treating him in an oppressive or unreasonable manner, such person may complain to the Board of Trade.” Section 55—“… The term ‘trader’ includes any person sending, receiving, or desiring to send, merchandise by railway or canal.”

The Railway Rates and Charges, No. 19 (Caledonian Railway, &c.) Order Confirmation Act 1892 (55 and 56 Vict. cap. lvii) confirms by section 2 a Provisional Order set out in the schedule to that Act.

The Provisional Order confirmed provides—Section 3—“This Order is to be read and construed subject in all respects to the provisions of the Railway and Canal Traffic Acts 1873 and 1888, and of any other Acts or parts of Acts incorporated therewith.” Section 4—“From and after the commencement of this Order the maximum rates and charges which the Caledonian Railway Company, and the railway companies connected therewith specified in the appendix to the schedule to this Order in respect of railways specified in the said appendix, shall be entitled to charge and make in respect of merchandise traffic on the railways of the said companies, shall be the rates and charges specified in the schedule to this Order annexed, and shall be subject to the classification, regulations, and provisions set forth in the said schedule.”

The Schedule of Maximum Rates and Charges appended to the Provisional Order provides—I section 5—“The company may charge for the services hereunder mentioned, or any of them, when rendered to a trader at his request or for his convenience, a reasonable sum by way of addition to the tonnage rate. Any difference arising under this section shall be determined by an arbitrator to be appointed by the Board of Trade at the instance of either party. … (i) Services rendered by the company at or in connection with sidings not belonging to the company.” II, section 10—“Where merchandise is conveyed for an entire distance which does not exceed … in the case of merchandise in respect of which no station terminal is chargeable six miles, the company may make the charges for conveyance authorised by this schedule as for … sixmiles. …” III, section 25—“In this schedule, unless the context otherwise requires—The term ‘trader’ includes any person sending or receiving, or desiring to send, merchandise by the railway. The term ‘siding’ includes branch railways not belonging to a railway company. …”

The maximum rates and charges are classified under various headings which are arranged in four parts, of which the following is Part IV:—

Maximum Rates and Charges.

Part IV.— Exceptional Class.

Description.	Charge.
For any accommodation or services provided or rendered by tbe company within the scope of their undertaking by the desire of a trader, and in respect of which no provisions are made by this schedule.	Such reasonable sum as the company may think fit in each case.

The Railway and Canal Traffic Act 1894 (57 and 58 Vict. cap. 54) enacts—Section 1 (1)—“Where a railway company have, either alone or jointly with any other railway company or companies, since the last day of December one thousand eight hundred and ninety-two, directly or indirectly increased, or hereafter increase directly or indirectly, any rate or charge, then if any complaint is made that the rate or charge is unreasonable, it shall lie on the company to prove that the increase of the rate or charge is reasonable, and for that purpose it shall not be sufficient to show that the rate or charge is within any limit fixed by an Act of Parliament or by any Provisional Order confirmed by Act of Parliament. … (3) The Railway and Canal Commissioners shall have jurisdiction to hear and determine any complaint with respect to any such increase of rate or charge, but not until a complaint with respect thereto has been made to and considered by the Board of Trade under section 31 of the Railway and Canal Traffic Act 1888.”

The Caledonian Railway Company, pursuers, brought an action against John G. Stein & Company, silica and firebrick manufacturers, Castlecary Works, Bonnybridge, defenders, concluding for decree for £462, 5s. 9d. being the balance of an account alleged to be for work done and services rendered to the defenders by the pursuers.

The pursuers pleaded—“1. The charges contained in the account sued upon being in accordance with the scale intimated to the defenders, and being reasonable charges for the work done and services rendered for and by pursuers on the employment of the defenders, and the balance sued for, £462, 5s. 9d., being due and resting-owing by the defenders in respect thereof, the pursuers are entitled to decree in terms of the conclusions of the summons. 2. The pursuers having been employed by the defenders to do the work and render the services libelled in the condescendence, in the full knowledge on the part of the defenders of the pursuers' scale of charges therefor, are barred from disputing liability for the account thereby incurred. 3. The work done and services rendered in respect of which the account sued upon was incurred by defenders not being the subject of statutory regulation or restriction, and the pursuers charges therefor being reasonable, the pursuers are entitled to decree as craved.”

The defenders pleaded—“1. The action is incompetent in respect that the jurisdiction of the Court of Session is excluded by section 5 of the Railway Rates and Charges, No. 19 ( Caledonian Railway, &c.), Order Confirmation Act 1892, and separatim by section 1 of the Railway and Canal Traffic Act 1894. 3. There being no agreement and no consensus in idem to tender and accept the same services after November 1915 as had been accepted for many years prior thereto but at increased rates, the defenders should be assoilzied. 7. The present process should be sisted till a determination of the questions by the competent tribunal or tribunals under the aforesaid Acts is obtained, (1) whether the pursuers can justify the increase

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of rates and charges in question as a reasonable increase, and (2) what is a reasonable charge or reasonable charges for the said services.”

The words printed in italics were added by amendment in the Inner House.

On 28th November 1918 the Lord Ordinary ( Blackburn) pronounced this interlocutor—“Finds that the dispute between the parties falls to be dealt with under the Railway and Canal Traffic Act of 1888, and continues the cause for a fortnight to allow the defenders, if so advised, to make a complaint to the Board of Trade in terms of the said Act,” and on 6th December 1918 he granted leave to reclaim.

Opinion, from which the facts of the case appear—“The defenders in this action are the proprietors of brick-works at Bonnybridge, which contain a private siding connected with the pursuers' railway system. For some years prior to the end of 1917 they have employed the pursuers to render them certain services on the siding, which are described in condescendence 3. These consisted in the moving of material belonging to the defenders, such as bricks or ashes, from one point to another within the siding, and for this purpose they have been accustomed to use the pursuers' waggons, which had either been first emptied of other goods brought to and delivered at the siding, or which had been brought to the siding empty to be loaded with goods for dispatch elsewhere. The waggons when filled with bricks or ashes were hauled by the pursuers' locomotives.

Down to October 1915 the pursuers charged for these services at a fixed maximum rate, which the defenders say that they considered reasonable, and which they accordingly paid without protest. On 26th October 1915 the pursuers informed the defenders that they proposed to increase their charges, and intimated a new scale to come into operation on 1st November of that year. To these increased charges the defenders at once objected as being unreasonable, and they disputed the right of the pursuers to impose them. From the 1st November 1915 down to the end of December 1917 they have refused to pay the accounts on the increased scale rendered to them by the pursuers, but from time to time have made payments on the old scale, which the pursuers have accepted as payments to account, qualified receipts being granted accordingly. The sum sued for in the present action represents the difference between the accounts rendered by the pursuers on the increased scale from 1st November 1915 to the end of December 1917 and the payments actually made by the defenders on the lower scale.

The defenders dispute the jurisdiction of the Court to entertain the action, and maintain that the only competent tribunal to determine the question is either an arbiter appointed by the Board of Trade in terms of section 5 of the Schedule of Maximum Rates and Charges in the Caledonian Railway (Rates and Charges) Order Confirmation Act 1892, or the Railway and Canal Commissioners in terms of section 1 of the Railway and Canal Traffic Act of 1894.

The former section authorises, a railway company to charge for services rendered ‘at or in connection with sidings not belonging to the company … a reasonable sum by way of addition to the tonnage rate,’ and provides for any difference arising under the section being submitted to an arbiter to be appointed by the Board of Trade.

The latter section provides that where after the year 1892 a railway company increases any rate or charge, and a complaint is made that the charge is unreasonable, it shall lie on the company to prove that the increase is reasonable, and the Railway and Canal Commissioners shall have jurisdiction to hear the complaint, but not until a complaint with respect thereto has been made and considered by the Board of Trade under section 31 of the Railway and Canal Traffic Act 1888.

Section 31 of the last mentioned Act provides that, ‘whenever any person receiving or sending or desiring to send goods by any railway is of opinion that the railway company is charging … an unreasonable rate of charge … such person may complain to the Board of Trade.’

The defenders maintained that unless the pursuers can justify their charges under one or other of these sections, in which case the jurisdiction of the Court is excluded, they were acting ultra vires in making a charge at all, and in either event, theysay, they are entitled to be assoilzied. I have no doubt that it was within the powers of the pursuers to render the services they did, and unless their charges were controlled by the statutory provisions above referred to I know of nothing to prevent them fixing their own price. If I thought the statutory restrictions did not apply I should accordingly hold that the defenders, having accepted the services under full notice of the charges to be made, were liable therefor, without any further enquiry as to whether the charges were or were not reasonable.

I am, however, of opinion that the pursuers' charges for such services are controlled by the statutory provisions, although I do not think the question is free from difficulty. I have no hesitation in rejecting an argument for the pursuers to the effect that neither of the sections founded on by the defenders apply to services rendered by a Railway Company voluntarily, as the services in the present case undoubtedly were. There are numerous instances in the Schedule to the Caledonian Railway (Rates and Charges) Confirmation Order 1892, in which rates for voluntary services are dealt with and their amount limited ( per L. J. Fletcher Moulton in Midland Railway v. Myers, 1908, 2 K.B., 356 at pp. 362 and 363—and see Lord President Balfour's Opinion in Cowan & Sons v. North British Railway, 3 F., 677, at p. 693 39 S.L.R. 240); while section 1 of the Railway and Canal Traffic Act 1894 merely deals with increased charges, and there is nothing in the Act to suggest that it does not apply to increased charges for voluntary as well as for compellable services.

But the pursuers submitted another argument which I think deserves careful consideration. They say that the statutory

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limitations in the sections founded upon by the defenders apply only to charges for services rendered either preliminary to or subsequent to the conveyance of goods, and that charges for services rendered in a private siding, unconnected with the conveyance of goods on the Railway's own lines to or from the siding, are outside the restrictions altogether. I think that it may be conceded that primarily at all events the restrictions do relate to charges for services rendered at a siding which are connected with the conveyance of goods to or from the siding. The bulk of the services rendered at a private siding by a Railway Company must be in this connection, and services of a different character are probably exceptional. But I see no reason why the statutory restrictions should be confined to charges connected with the conveyance of goods on the Railway's own lines; and looking to the practical monopoly which a Railway Company enjoys of the traffic on a siding, unless the trader supplies his own rolling stock, I should expect to find that the charges for such exceptional services were also regulated by statute. Although the services in this case were unconnected with conveyance on the Company's own lines they were services for the conveyance of goods by rail on lines connected with the Company's own system—in short, carrier work on a railway; and if the language used in section 5 of the Schedule in the Rates and Charges Confirmation Order can be construed so as to include the charges for these services I see no reason for excluding them from its provisions. Different considerations might have arisen had the Railway Company undertaken to cart the bricks and ashes from one point on the siding to another. The services would still be rendered at or in connection with the siding, but the work would not be confined to the railway, and the Company would not be in the position of possessing a monoply. I think the pursuers' argument on the section comes to this, that it only applies to charges which can be made according to the words of the section ‘by way of addition to the tonnage rate’ and consequently cannot apply to a case like the present, where there is no tonnage rate for conveyance to which the charge for services can be added. I think it is admis-ible to construe these words as meaning no more than that services only can be charged for which are not included in a tonnage rate, if such rate has been already charged, and that the true purpose of the section is to control the charges for all services ‘at or in connection with sidings,’ irrespective of whether they are connected with goods on which a tonnage rate has been charged or not. The pursuers' argument is supported to some ex ent by a dictum of Lord President Balfour in Cowan & Sons v. North British Railway ( cit.) at p. 693, where his Lordship, in dealing with the services referred to in section 5 of the Schedule says: ‘These are all services either prior to or subsequent to conveyance’; but the question under consideration in Cowan's case was an entirely different one, and the point of the Lord President's dictum was directed to show that the Schedule applied to many services which were voluntary, and which the Company could not be compelled to render.

The pursuers further supported their argument by suggesting that if the services rendered by them in this case come under the Schedule at all they fall under the last of the exceptional cases dealt with under Part IV. of the Schedule. These are services ‘rendered by the Company within the scope of their undertaking … in respect of which no provisions are made by this Schedule.’ While the charges under Part IV, are restricted to ‘reasonable sums’ there is no reference clause, and accordingly if the services rendered here fall under this part of the Schedule the jurisdiction of the Court is not excluded, but a proof would be required to ascertain whether the charges were reasonable. But I think there is a clear distinction between services rendered ‘at a private siding’ dealt with by section 5 and services rendered ‘within the scope of the Company's undertaking,’ dealt with under Part IV. of the Schedule. I take the latter services to be services rendered on the Company's own lines, and in the only case to which I was referred ( Midland Railway v. Myers, ( cit.) 1909, A.C. 13) arising under Part IV. of the Schedule, the services were of this nature.

When they came to the Railway and Canal Traffic Act of 1894 the pursuers could not but admit that so far as the language of the Act itself is concerned there is nothing to indicate that the increase of charges regulated by the Act is confined to charges for services connected with the conveyance of goods on a Railway Company's own system, but they argued that this was a necessary inference from the reference in the third sub-section of section 1 of the Act to the 31st section of the Railway and Canal Traffic Act of 1888. The 31st section of the Act of 1888 provides for a complaint to the Board of Trade by ‘any person receiving or sending’ goods by any railway. The pursuers say that if a complaint under the Act of 1894 has to be ‘made to and considered by the Board of Trade’ under section 31 of the Act of 1888, it can only be made by a person ‘receiving or sending goods’ by the railway, and that this necessarily restricts the increase of charges dealt with by the 1894 Act which can be the subject of complaint to charges for services connected with the conveyance of goods. I do not think that this inference is sound, or that the wide and general words of the Act of 1894 can be held to be restricted by a sub-section which merely deals with the procedure preliminary to approaching the Railway and Canal Commissioners. I am accordingly of opinion that the pursuers' contention that charges for services such as they have rendered in this case are free from statutory limitation is unsound.

The pursuers, however, submitted an alternative argument in support of their action, in the event of its being held that the statutory limitations apply to their charges. They say, and I think say justly, that the whole question arises here out of a proposed increase of charges. It does not

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appear to me to matter whether the charges paid prior to October 1915 were fixed by agreement or otherwise. They were accepted by the defenders as reasonable and paid without demur, and the only complaint arises out of the increase. Now that is a matter which in my opinion falls to be dealt with under the Railway and Canal Traffic Act 1888, and to put that Act into operation a complaint must be made. The pursuers say, with reason as it appears to me, that they could not complain of their own charges, and that as the defenders declined or delayed to invoke the Act there was no alternative left to them but to raise an action at common law. I think they are justified in so doing, and I propose to continue the cause for a fortnight to enable the defenders to make a complaint to the Board of Trade, and on that being done I shall follow the course adopted in the case of Caledonian Railway Company v. Clyde Shipping Company, 1917 S.C. 107, 54 S.L.R. 104, and sist the action pending a decision by the competent tribunal.”

The pursuers reclaimed, and argued—The Lord Ordinary was wrong, and the Courthad jurisdiction to try the question in issue between the parties. The services in question consisted entirely in moving goods from point to point within the defenders' works upon his lines and for the purposes of his business. They could perfectly well have been performed by a locomotive kept and run by him. Their character was entirely domestic and internal, and they had no connection with transit over the pursuers' railway. If the defenders' works were disconnected from the pursuers' railway the work in question would still be required. Further the defenders in arranging for the work did not do so as persons about to receive or send goods on the pursuers' railway. The result was that those services fell outwith the legislation regulating the rates to be charged by railways and appointing special tribunals to determine questions as to such rates. Thus the services in question did not come within the terms of the Railway Rates and Charges, No. 19 (Caledonian Railway, &c.), Order Confirmation Act 1892 (55 and 56 Vict. cap. lvii), which Act properly construed applied to traffic on the railways scheduled primo loco and, in so far as it applied to services not on those railways, it only applied to services incidental to traffic on those railways and rendered to traders. Section 3 of the Schedule to that Act, which was the Provisional Order confirmed of that Act, provided that that Order was to be read and construed along with the earlier Railway Acts, and section 4 determined the whole scope of the provisions which followed, and it was limited to merchandise traffic on the scheduled railways. The Schedule of Maximum Rates and Charges appended to that Act—I, section 5—applied only to traders, which the defenders were not, for a trader was one sending or receiving or desiring to send merchandise by the railway—III, section 25. Further section 5 assumed a tonnage rate payable and made the charge for the services an addition thereto. Then if there was any tonnage rate at all it must be as for six miles—II, section 10—for there was no terminal station. In point of fact there was no tonnage rate. The lines in question were not sidings in the sense of that Act—III, section 25—for a siding was a branch railway and that implied a main line. Quoad the traffic here in question, there never was any main line for it was purely domestic. If the Act of 1892 had applied to matters arising on private sidings there would have been no need for section 4 of the Railway and Canal Traffic Act 1894 (57 and 58 Vict. cap. 54) dealing with rebates or for the Railways (Private Sidings) Act 1904 (4 Edw. VII, cap. 19). But in any event services on sidings must come under the terms of section 5 which did not apply. Further, Part IV of that Schedule dealing with exceptional and unclassified cases did not apply, for that was limited in its application by section 4 to traffic on the rail ays, and was really anothter heading added to the classified services under section 5 of the Schedule of Maximum Rates and Charges which only applied to traders and implied a tonnage rate. Further, section 1 of the Act of 1894 did not apply. The title of that Act showed it was of the same series as the Act of 1892, and section 1 only applied to an increase of a rate which entered the rate book—sub-section 2—and only after a competent complaint had been made under section 31 of the Railway and Canal Traffic Act 1888 (51 and 52 Vict. cap. 25). But that Act again applied to traffic on a railway and services incidental thereto and to traders—sections 8–16, 24, 27, and 55. Indeed there was always that limitation where the legislature interfered with the railway companies' freedom to charge what they chose—Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33), section 83); Railway and Canal Traffic Act 1854 (17 and 18 Vict. cap. 31), section 2; Regulation of Railways Act 1873 (36 and 37 Vict. cap. 48) sections 14 and 15. Indeed the whole series of those Acts were to be regarded as a code whose main object was to impose compulsory obligations to give conveyance, &c., for reasonable rates. Compulsion was the key note of the whole series, though the actual legislation was not limited to what could be compulsorily enforced— Dickson v. Great Northern Railway Company, 1886, 18 Q B D 176, per Lindley, L.J., at p. 182. The earlier Acts had to be considered to enable a true construction to be placed upon the later Acts. The earlier Acts admittedly were limited to traffic on railways and services incident thereto. In those circumstances the provisions of the Act of 1894, couched in wide, ambiguous and undefined language, could not be held as extending to topics that did not fall under the earlier Acts. The Acts of 1892 and 1894 were limited to some extent in their application, e.g., they did not apply to the railway hotel breakfast, and it was for the defenders to show that they were not limited in the same way as the earlier Acts of the same code. The defenders were not in a position to argue that the services in question were ultra vires. A shareholder or a person injured by illegal competition could have so argued, but the defenders

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having accepted the services could not do so. Further, the class of matters regulated by the Railway Acts was not co-extensive with what was intra vires of the railway. There were matters intra vires of the railway but not within the scope of those Acts— Watson, Todd, & Company v. Midland Railway Company and London and North-Western Railway Company, 1895 and 1896, 9 R. & C.T. Cas. 90; East and West India Dock Company v. Shaw, Savill, & Albion Company, 1888, 39 Ch. D. 524, per Chitty, J., at p. 531; Midland Railway Company v. Myers, Rose, & Company, Limited, [1908] 2 KB 356, per Fletcher-Moulton, L.J., at p. 362. As to those matters, the Railway Company was quite free, and no amount of protest was of any avail— Watson's case ( cit.), per Collins, J., and Esher, M.R.; Stone & Company v. Midland Railway Company, [1903] 1 KB 741, per Lord Alverstone, C.J., at p. 745, [1904] 1 KB 669, per Collins, M.R., at p. 672. If so, then neither of the statutory bodies had jurisdiction, and the Court's jurisdiction was not excluded. If the Court had jurisdiction the pursuers were entitled to decree de piano, for the defenders had taken advantage of the services in full knowledge of the increase in rates, and could not now plead no consensus in idem— Macfarlane v. Mitchell, 1900, 2 F. 901, 37 S.L.R. 705. In any event their only ground for withholding payment had been cut away. Alternatively, if the services did come within the statutes they could only fall under Part IV of the Schedule of Maximum Rates and Charges of the Act of 1892 with regard to the charges for which no statutory tribunal was set up. If so the courts had jurisdiction Midland Railway Company v. Myers, Rose, & Company, Limited ( cit.), [1909] AC 13, per Lord Loreburn, L.C. If the services fell under section 1 of the Act of 1894, then the defenders had sought the wrong tribunal— Mansion-House Association on Railway Traffic v. London and North-Western Railway Company, [1896] 1 QB 273. Glasgow and South-Western Railway Company v. Polquhairn Coal Company, Limited, 1916 S.C. 36, 53 S.L.R. 73, was referred to.

Argued for the defenders—The Railway Statutes applied to the services here in question, and as a result the provisions for arbitration also applied and the jurisdiction of the Court was ousted. The services were voluntary and not compulsory, but that was immaterial, because the Railway Statutes had been held to apply to non-compulsory services— Cowan & Sons, Limited v. North British Railway Company, 1901, 3 F. 677, per Lord President Balfour at p. 692–3, 39 S.L.R. 240; Midland Railway Company v. Myers, Rose, & Company, Limited ( cit.), per Fletcher Moulton, L.J., at p.362. It was most difficult, if not impossible, to figure a service which was intra vires of the Railway Company and yet not regulated by the Railway Acts, and unless the Railway Acts authorised the Railway Company to do those services they were ultra vires. If so, their interpretation should be in favour of the application of those Acts rather than the reverse. There was nothing in section 4 of the schedule to the Act of 1892 which prevented its application to the services in question here. Its scope was shown by section 5 of the Schedule of Rates and Charges. The different classes of rates and charges classified under that section were not all bound up with conveyance on the railway. There were charges for items not on the railways. Consequently the services need not be incidental to traffic on the railway in the sense in which the pursuers construed the word ‘railway’. But in any event the traffic here in question ultimately came and went on the railway in that sense, and hence was incidental to conveyance on the railway. Further, the words “on the railway” were not to be construed strictly or literally as imposing a limitation. The mere fact that work was done on a private siding did not cause it to be non-railway work. Siding was widely defined in section 25, and “railway” must be regarded as the railway system, including private sidings in connection with the railway— Myers' case ( cit.), per Fletcher-Moulton, L. J., at p.363, commenting on Watson's case ( cit.). Further, the services here in question fell within the terms of I, section 5, of the Schedule of Rates and Charges. The words “by way of addition to the tonnage rate” caused no difficulty. Those words did not mean that a tonnage rate must be charged before a siding services rate could be charged, but merely meant that the tonnage rate, if any, ceased at the siding, and thereafter the charge was for siding services, i.e., there was to be no overlapping. Further, the defenders were “traders” in the sense of the Railway Acts. The definition of trader was not limitative. It included others than those sending or desiring to send or receiving goods. But if it was limited to that class it was not limited to those sending or desiring to send or receiving the goods on which the services were rendered. A trader did not lose his character as such merely because he did not for the time desire to send goods, nor had goods in transit, nor was receiving goods. His character was not dependent on the actual state of his business with the Railway Company from time to time and did not change with it. A trader stood in a particular relation to the Railway Company, giving him a reasonably permanent character. Part IV of the Schedule of Rates and Charges was not in point, for if section 4 of the schedule did not apply neither did Part IV, which was governed by it. Myers' case ( cit.) was not in point. Accordingly, as a difference had arisen under I, section 5, the question was appropriate for an arbiter appointed by the Board of Trade. Alternatively, section 1 of the Act of 1894 applied. The present question was of a kind which was dealt with by the Railway and Canal Commissioners. It involved a question of undue preference, for while the same services had been rendered to many traders the increased charge had been made on the defenders alone. The words used in that section were perfectly general and were meant to apply universally. They were contrasted with the words of the Act of 1894. It was not conceded that they would not apply to the hotel breakfast. But while the words were general the section was limited

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in actual operation by the question of locus standi or interest. Thus it was only where a rate had been raised that the section could be invoked. The reference in subsection 3 of that section to a complaint under section 31 of the Act of 1888 was merely for the purpose of procedure, and did not limit the right to complain to those who could qualify under that section. But in any event, even if that sub-section was limitative, the defenders were traders in the sense of section 55 of the Act of 1888, and could competently proceed under section 31. Both the Railway and Canal Commissioners and a Board of Trade arbitration were open to the defenders. The former had frequently exercised jurisdiction in disputes such as had given rise to the present question— Furness Railway Company v. Vickers, Sons, & Maxim, Limited, 1904, 12 R. & C. T. Cas. 81, per Sir Frederick Peel at p. 84; North British Railway Company v. Coltness Iron Company, Limited, and Others, 1910 and 1911, 14 R.&C.T.Cas. 246. In any event it was for the arbiter to determine whether this case fell under his jurisdiction or not— Caledonian Railway Company v. Clyde Shipping Company, 1917 S.C. 107, 54 S.L.R. 104. [ Lord Mackenzie referred to the case of Pidcock & Company v. Manchester, Sheffield, and Lincolnshire Railway Company, 1895, 9 R. & C.T. Cas. 45, per Sir F. Peel at p. 54.]

At advising—