5th. That no injunction will be issued to restrain the defendants from illegal acts which are not shewn to have been directly injurious to the petitioners, and at the same time injurious to the public.

Semble, That where the petition alleged that there was no by-law of the Company, approved by the Governor in Council, to regulate and establish the rate of tolls on their road, and the Company alleged that a by-law had been sanctioned by the Governor General according to law, and no proof was adduced by either party in respect of such allegations: The Court will hold the burden of proof to be on the Company, and that no such by-law

existed.

40. Que les plaignants, charretiers de la cité de Montréal, n'avaient pas constaté qu'ils avaient souffert de manière à ce que la Cour fut justifiable à émaner l'injonction que l'on demandait.

50. Qu'il ne sera émané aucune injonction pour empêcher les défendeurs de commettre des actes illégaux qui ne sont pas constatés avoir été directement injurieux aux réquérants, et en même temps injurieux au public.

Il semble,-Que dans le cas où la requête alléguait qu'il n'y avait aucun règlement de la compagnie approuvé par le gouverneur en conseil, pour régler et établir les taux sur leur chemin, et la compagnie alléguait que tel règlement avait été sanctionné par le Gouverneur Général, et qu'aucune preuve ne fut faite par l'une ou l'autre des parties touchant telles allégations: La Cour maintiendra que l'onus probandi incombait sur la compagnie, et que nul tel règlement existait.

Judgment rendered the 9th December, 1865.

The pleadings and proof in the cause will be understood from the remarks of the Court in rendering judgment:

MONK, Justice:-This is an application made to me at the instance of the Attorney-General against the Grand Trunk Railway Company of Canada for an injunction to restrain that Company from the exercise of the business of common carters within the limits of the city of Montreal. It would appear from the evidence adduced, that the Grand Trunk Railway Company employ exclusively a Mr. Shedden to collect and deliver freight within and near the city of Montreal. That the master carters of this city are excluded from all participation in the business of collecting and delivering for the Grand Trunk; and consequently it is sought, upon the grounds to be hereafter fully stated, to restrain the company from the exercise of this privilege or monopoly, carried on in this way through the instrumentality of Mr. Shedden.

Before proceeding to develope the particular facts of this case (which is one of considerable importance to the parties in the cause, and also to the public,) and to adjudicate upon

the points submitted, it may be proper to remark that in England this proceeding is by rule, and the cases are tried upon affidavits. In this country we have special legislation on the subject. These provisions of law are found in the 88th chapter of the Consolidated Statutes of Lower Canada, and are to the following effect:

"Whenever any association or number of persons act within Lower Canada as a Corporation, without having been legally incorporated, or without being recognised as such Corporation by the Common Law of Lower Canada,— and whenever any Corporation, Public Body or Board offends against any of the provisions of the act or acts, creating, altering, renewing, or reorganizing it, or violates the provisions of any law in such manner as to forfeit its charter by misuser, and whenever any such Corporation, Public Body or Board has done or omitted any act or acts, the doing or omitting of which amounts to a surrender of its corporate rights, privileges and franchises, and whenever any such Corporation, Public Body or Board exercises any franchise or privilege not conferred on it by law,—it shall be the duty of Her Majesty's Attorney-General for Lower Canada, whenever he has good reason to believe that the same can be established by proof, in every cuse of public interest, and also in every such case in which satisfactory security is given to indemnify the government against all costs and expenses to be incurred by such proceeding, to apply for and on behalf of Her Majesty to the Superior Court sitting in the district in which the prin cipal office or place of business of such persons so unlaw. fully associated together, or of such Corporation, Public Body or Board is situate, or to any judge of such court in vacation, by an information, declaration or petition, requête libellée, supported by affidavit to the satisfaction of such court or judge, complaining of such contravention of the law, and praying for such order or judgment thereon as may be authorised by law." Thereupon a writ issues, and the defendants are called upon, as in all other cases, to

answer the declaration or petition, and the subsequent proceedings are similar to those in ordinary suits at law.

The Grand Trunk Railway Company of Canada was incorporated, and its charter altered and amended under a variety of statutes to which it is not necessary to refer at the present moment; and to this Corporation the clauses of the Railway Consolidation Act, 14 and 15 Vic. cap. 51, are applicable, and some of which will have to be considered hereafter.

After these preliminary observations (rendered in some degree necessary to test and fully comprehend the decisions and the authorities to be referred to in the sequel), we come to the consideration of the important case before us. And here I may remark, that I consider it proper to review the pleadings and evidence at greater length than in ordinary cases, because the question is new here, and of public importance; and moreover it is desirable if new in fact, that the parties whose rights and interests are to be affected by my judgment, should rest satisfied that no essential point has escaped the attention of the Court.

The petition sets forth several distinct charges against the Grand Trunk Railway Company. Some of these charges are general-some specific; and they may be succinctly stated to be as follows, viz.:

1st. That the Grand Trunk Railway Company of Canada exercise the occupation of carters in and within the limits of the city of Montreal, and carry and transport for hire, goods and merchandize from their depots to and from the stores and residences of the citizens of Montreal.

2nd That the company charge tolls for the transport of goods and merchandize from Montreal to places on their line of Railway, and that such tolls are uniform, an 1 the same, whether the goods and merchandize are carted at the expense of the sender and receiver of the same, by his

own carter, or at the expense of the defendants by persons employed by them from and out of the tolls so charged.

3rd. That the defendants openly, publicly and in violation of law, have used for a year and upwards, and do now use carts and sleighs, with horses attached, for the transport of goods and merchandize to and from their depots with the letters G. T. R. printed thereon, to wit: Grand Trunk Railway, in and within the limits of the city of Montreal, and do exercise the occupation of carters in and within the city.

4th. That the defendants demand and obtain payment. of tolls, which are not payable at the same time and under the same circumstances upon all goods; but that, on the contrary, they exercise an undue advantage, privilege and monopoly, injurious to the carters of Montreal and the citizens, and which could not by law be authorised by any by-law, legally enacted or approved by competent authority.

5th. That the tolls exacted by the defendants for the transport of goods and merchandize on their Railway include cartage rates, and are levied without the authority of any by-law to that effect, approved of by the Governor in Council, and that the same has not been published in the Canada Gazette.

6th. That the defendants have not printed and stuck up in the office or place where the tolls are to be collected, or in every or any passenger car, a printed board or placard exhibiting all the tolls payable, and particularizing the price or sum to be charged, for the carriage of any matter or thing.

And the conclusions of the petition ask for seven different orders or judgments, viz.: that it should be adjudged and declared:

1st. That the company have exercised a franchise and a privilege not conferred by law.

2nd. That the company have offended against the provisions of the Act or Acts creating, altering, renewing or re-organizing the said Corporation.

3rd. That the defendants have exceeded the powers, capacities, franchises and jurisdictions conferred upon them.

4th. That the imposition of tolls, including the cartage of the goods and merchandize, in and within the limits of the city of Montreal, may be declared illegal, and in contravention of the law.

5th. That the imposition of tolls without the authority of a by-law, approved of by the Governor in Council, &c., be declared illegal.

6th. That it be declared that the defendants carry on the business and occupation of common carters within the limits of the city of Montreal, and that their doing so is illegal.

7th. That the company be enjoined to abstain from using the occupation of carters within the city of Montreal, and be restrained from carrying goods and merchandize from and to their depots to and from the residences and stores of the citizens of Montreal.

The defendants met the action by a motion to quash the writ and petition, by a special demurrer, and by three other pleas amounting to the general issue. It is necessary to advert to this preliminary plea. The reasons assigned in the demurrer (omitting the first reason) are:

2nd. Because the said allegations of the said petition are wholly vague, uncertain and indeterminate, and the pretended offences or contraventions of law therein alluded to are not particularized or specified as to time, place, or