The Great Southern and Western Railway Company v Henry Robertson, Trading as Fishbourne & Company

• Jurisdiction: Ireland
• Judgment Date: 18 November 1878
• Date: 18 November 1878
• Court: Chancery Division (Ireland)

Exchequer.

Before PALLES, C. B., FITZGERALD and DEASY, BB.

THE GREAT SOUTHRN AND WESTERN RAILWAY COMPANY

and

HENRY ROBERTSON, TRADING AS FISHBOURNE AND COMPANY

The Attorney-General v. The Great Southern and Wester Railway CompanyUNK 14 Ir. C. L. R. 447.

The Great Western Railway Company v. SuttonELR L. R. 4 H. L. 226, 249.

Railway Company Carriage of military stores 5 & 6 Vict. c. 5, s. 20 7 & 8 Vict. c. 85, s. 12 Money had and received Money paid by compulsion.

ToL.- XI.] COMMON LAW SERIES. 63 THE GREAT SOUTHERN AND' W] STERN RAILWAY Exchequer. COMPANY v. HENRY ROBERTSON, TRADING AS FISH- . 1876 BOURNE AND COMPANY (1). Nov. 10, 11. _Railway Company-Carriage of military stores-5 c5 6 Vict. c. 55, s. 20- 1877. 7 4- 8 Vict. c. 85, s. 12-Money had and received-Money paid by com- Jan. 31. pulsion. A carrier, having a contract for his own benefit with the military authoÂÂrities for-the carriage of military stores and baggage, produced to a Railway Company the military route or order for the conveyance of military stores and baggage accompanied by a military escort, and required the Company to carry them at the low rates prescribed by the 5 & 6 Vict. c. 55, s. 20, and 7 & 8 Vict. c. 85, s. 12 ; but the Company insisted upon charging the ordinary rate, which was paid by the carrier :-Held, that he could not recover back the excess as money had and received to his use. DEMURRER to the rejoinder. The plaint claimed 804 58. 9d. on the ordinary mints for work and labour, money had-and received, money paid, money due on accounts stated, and for freight for the conveyance by the Plaintiffs for the Defendants, at their request, of goods over the Plaintiffs' railway. The seventh defence was as follows : And for a further plea of set-off to the sum of 601 18s. 9d., portion of the Plaintiffs' demand, the Defendant says that the Plaintiffs at, &c., were and still are indebted to the Defendant in an amount equal to the Plaintiffs' claim, for that the Plaintiffs are a Railway Company which was incorporated, &e. ; and that after the passing of an Act of Parliament made and passed in the said Session of Parliament, entitled, &c., to the provisions of which Act the PlainÂÂtiffs were and are subject, it was, on many and divers occasions, necessary to move certain officers or soidiers of Her Majesty's forces of the line, ordnance corps, marines, militia, or the police force, with their public baggage, stores, arms, ammunition, and other necessaries and things (not being gunpowder or other combustible matter) by the Plaintiffs' railway, and thereupon, on the said occasions, the Defendant, having duly entered into a contract. with the proper authorities for the moving on such occasions of the said public baggage, (1) Before PALLES, C. B., FITZGERALD and DEASY, BB. Voi.. XL THE IRISH REPORTS. [I. R. stores, arms, ammunition, and other necessaries and things, at the rates and. charges provided for by the said Act, required. the Plaintiffs to convey the said. public baggage, stores, &c., there being then officers or soldiers of Her Majesty's forces of the line, &c., accompanying the same, at charges not exceeding twoÂÂpence per ton per mile, and produced on each of such occasions a route or order for their conveyance, signed by the proper authorities in pursuance of the statute in that behalf, the military or other forces being always ready and willing to give their assistance in loading and unloading the said goods ; yet the Plaintiffs on the said occasions refused to convey the said public baggage, &c., at charges not exceeding twopence per ton per mile, and demanded to be paid for such conveyance charges exceeding twopence per ton per mile ; and the Defendant on the said occasions was compelled to pay, and did pay, to the Plaintiffs the said charges so demanded, exceeding twopence per ton per mile, in order to have the said public baggage, &c., conveyed by the Plaintiffs' railway, which withÂÂout such payment Plaintiffs would not have conveyed ; and the Defendant says that thereupon the Defendant requested the Plaintiffs to 'repay to the DefendÂÂant the amount by which the said charges so demanded by the Plaintiffs, and paid by the Defendant as aforesaid, exceeded what the amount of the said charges would have been at the rate of twopence per ton per mile-that is to say, the sum of 601 188. 9d. ; yet the Plaintiffs did not repay to the Defendant the said sum of 601 188. 9d., or any part thereof, the particulars of which are indorsed hereon, which sum the Defendant is willing to set off against so much of the Plaintiffs' claim as is herein pleaded to. Replications : The Plaintiffs, by way of introduction to the further replication to the seventh defence say that, though the charges demanded by the Plaintiffs and paid by the Defendant exceeded what the amount of the said charges would have been at the rate of twopence per ton per mile, the same did not exceed the amounts which the Plaintiffs would be lawfully entitled to demand in respect of the conveyance of the goods in the said defence mentioned, if the said goods were not goods which the Plaintiffs were bound to carry on the terms provided by the statutes in the said defence mentioned. . And the Plaintiffs for a further replication to the seventh defence (repeating the said introduction) say, that before any of the removals in the defence menÂÂtioned, and before the Plaintiffs were required by the Defendant to convey any of the said goods, and upon the occasion of and before each of the said conÂÂveyances, the proper authorities under the statutes in the said defence menÂÂtioned, and who then had the possession and control of said goods, desiring to have the said goods removed from certain places beyond the limits of the Plaintiffs' line of railway to certain other places also beyond the limits of the said railway, contracted with the Defendant from time to time for the carriage of the said goods over the whole of the said journeys for a certain sum as reÂÂward to be paid by the said authorities to the Defendant, the amount of which Von. XI.) COMMON LAW SERIES. 65 reward so agreed to be paid exceeded the sum"of twopence per ton per mile for Exchequer. the whole distance between the said several places ; and the said authorities, 1876. after making the said contracts, delivered the said goods to the Defendant for GT. S. & W. the purpose and on the terms aforesaid, and placed the same in the custody and RAIL. Co. under the control of the Defendant for carriage from place to place ; and whilst V. the said goods were in the possession and custody and under the control of the ROBERTSON. Defendant for the purpose and during the journey aforesaid, and after they had left the possession, custody and control of the said authorities, the Defendant, for his own greater profit and convenience, then being in charge and having the custody of the said goods, brought and tendered the same to the Plaintiffs for carriage by the Plaintiffs for the Defendant, and required the Plaintiffs to -convey the same, as in the said defence alleged, over so much of the Plaintiffs' railway as lay in the course of the said journey, whereupon the Plaintiffs refused to carry the same for the Defendant, save at the rates in the said introduction mentioned, and did carry and deliver them for such lawful rates as aforesaid, which are the rates demanded and paid, as in the said defence alleged. Rejoinder to the thirteenth replication : That the officers or soldiers of Her Majesty's forces of the line, &c., accomÂÂpanying the goods in the said seventh defence and thirteenth replication menÂÂtioned, were officers or soldiers provided by the authorities, in the said defence and replication mentioned, for the purpose, and charged with the duty of escorting the said goods respectively in safety to their respective places of desÂÂtination, and who, on the occasions in the said defence and replication menÂÂtioned, accompanied the said goods for the purpose aforesaid. . Demurrer to the rejoinder : That the said rejoinder does not disclose any answer good in law to the Plaintiffs' sixth replication to the Defendant's seventh defence ; for that it admits that the goods in the said defence and replication mentioned were not being removed in the custody or under the control of any soldiers or officers of Her Majesty's forces of the line, &c., and because the Defendant was not, by reason of the escort and matters in the said rejoinder mentioned, entitled under the circumstances in said replication mentioned to have the goods in the seventh -defence mentioned carried by the Plaintiffs at the rate of twopence per ton per mile, and because the said rejoinder is otherwise bad in substance, and because it is otherwise no answer to the said replication. The following points were relied on by the Plaintiffs : (1). That the rejoinder does not show that the Plaintiffs were, under the statutes in the pleadings mentioned, bound to convey the goods in the pleadings mentioned upon the terms in the defence alleged ; (2). That it does not show G2 THE IRISH REPORTS. [I. R.. that the soldiers or other persons escorting the said goods were, or that any of them there was in the charge or possession of the said goods, nor that the said. goods were public baggage within the meaning of the said statutes ; (3). That as the said goods in the said rejoinder mentioned were being carried by the Defendant under a contract between him and the public authorities, as in the. replication alleged, the Plaintiffs were entitled to be paid for the carriage by the Plaintiffs' railway by the Defendant at ordinary rates, and that the Defendant was not entitled to have the said goods carried at twopence per ton per mile ; (4). That the said rejoinder is a departure from the said defence in its averments. as to the soldiers, officers or escort therein mentioned ; (5). That the said reÂÂjoinder is bad in substance and contains no answer to the said...