1. The learned Judge of the Court of Small Causes has decreed the plaintiff's suit for a refund, on the ground that the alteration in the freight rates was not published. He says:
No circular issued to the Railway staff, without due publication could affect, the plaintiff's right to get his goods carried at the rats entered in the Goods Tariff then in force,
2. The Secretary of State has applied in revision to this Court urging that publication of a change in freight rates is not necessary in order to bind the public by that change. The lower Court has not suggested under what law it holds that publication is necessary. I have had the advantage of hearing the learned Government Advocate for the Secretary of State, but the plaintiff-respondent has not seen fit to be represented.
3. The only provision which the learned Government Advocate can draw to my attention, or which I can find in the Railways Act calling for publication, is Section 47(1)(g). That and its related provisions require publication of a general rule. The general rule governing the maximum and minimum rates has been published in the Pamphlet No. 1 dealing with rates dated the 18th of November, 1921, and there has been no change in the general rule. There is nothing, so far as I am informed, which requires publication of a change of rates between the maximum and the minimum provided for in the general rule in the pamphlet just quoted. A very similar case was decided by my brother Mr. Justice Daniels on the 23rd of April 1926, Civil Revision No. 26 of 1926. If the plaintiff desired to be absolved from the higher rate by proving that the publication was necessary, it was for him to prove it. As far as I am able to ascertain, no such publication was necessary and that being so, the decree passed by the Court below must be set aside.
4. This application is, therefore, allowed and the decree of the lower Court is set aside and the plaintiff's suit dismissed with costs.