&c., would be "theirs" all the while, for the purpose of the journey, that may be correct; but I have some hesitation in adopting it. It seems to me not to be necessary to go so far. I think there may be drawn a point far within that, but stiil advance enough to include the present case. It appears by the reference made by Mr. Johnstone to the Mutiny Act and the Articles of War that there are certain divisions of the Queen's forces-regiments, battalions, companies, and so forth-which have certain stores, baggage, and equipments "belonging to them," in the language of the 10th Article of War, and given in charge to the Commanding Officer, who is responsible for them. Now, when a regiment received the "route," it was always the practice, long before railways were thought of, to detach a portion of the regiment as the baggage guard of the baggage of the whole regiment, which was given in charge to them, and they marched with it quite apart and separate from the main body of the regiment, that is to say, the baggage with their guard, travelled the line of march a day or a couple of days, as it might be, before the head-quarters. Many of us are old enough to remember a marching regiment proceeding from one town to another, the baggage preceding the head-quarters by a day or two, more or less, as it might be, in charge of a detachment called the "baggage guard." Now, it appears to me that, without much straining of the words, you might say of these men and of that baggage, that the baggage there belonged to the regiment of which they were part, but that they had the exclusive possession of it for a particular duty, and it was therefore "their baggage" during the performance of that duty. The difference to the Company between that construction and the view of the Court of Exchequer is this, that while the latter would make the Company carriers in compulsion of stores to any amount, wholly irrespective of any troops being on the march at all, provided only that a few men were sent with them, the former confirms the liability of the Company to the baggage of the regiment or the large body of troops bona fide on the march, that baggage being escorted by a sufficient number of that regiment travelling with it on the line. When the railway system came into operation, and the military authorities found it expedient to treat for the conveyance of troops and baggage by rail, instead of impressing men and horses, they passed the 5th and 6th Victoria; and we can well understand that by the amended Act, 7th and 8th Victoria, it was contemplated that that portion of the regiment hampered with the baggage of the regiment should travel at the Parliamentary rate. Looking at the provisions of the two statutes and the Articles of War, and considering the method of moving troops and their baggage that formerly existed, I am much disposed to think that the duty imposed upon the Railway Company was to the extent I have stated, and that the Defendants' contention. which would involve the sending of all the troops to whom the baggage belonged, or a forfeiture of the right to send the baggage, is not correct. For these reasons, and construing the statute in that restricted sense, I am of opinion that the judgment of the Court below should be affirmed. Mr. Justice Hayes.-I concur in the opinion of the Court that the judgment below should be affirmed, and I do so on the reason deduced by my Lord Chief Justice and my brother Keogh. I dismiss the case by saying that looking at the 7th and 8th Vict., it seems to me reasonable that the executive government should be at liberty, when the exigencies of the public service demanded it, to send by trains, at the usual hours of starting, either the persons mentioned, namely, the military or police force, or their wives, widows, or children, with their personal baggage or with public baggage or stores, not limiting the latter in amount, or quantity, in any way in respect to the persons sent, and that this can be done for the payments provided under the Act. Mr. Justice Fitzgerald. I concur in the decision of the Court that the judgment of the Court below should be affirmed, but I limit myself to the reasons given in the Court below. I don't think that the duty imposed upon the Company is more extensive than that pointed out by Baron Fitzgerald. Mr. Justice O'Hagan.—I had to consider the case when I held the office of Attorney-General; the proceeding was taken on my advice and by my directions, and I believe it appears on record with my name attached to the summons and plaint. Under these circumstances I consider it more becoming that I should not give any opinion upon the matter in controversy, and I desire to be understood as having taken no part in the judgment of the Court. Judgment for the Crown. The 2nd case was in the year 1878, when a contractor (Robertson) sued the same Company for, and recovered, a large sum as an overcharge. The case was ultimately decided by the Irish Court of Appeal,' and the judges gave judgment in these words : The Lord Chancellor. The appellant is a carrier, who, under and in pursuance of a contract with the military authorities, conveyed upon the Great Southern and Western Railway (Ireland), public luggage, stores, and ammunition, and having been by the Company charged in excess of the rate prescribed by the Act 7 & 8 Vict., c. 85, for the carriage of such goods, sues to recover back this excess. The Court of Exchequer determined that he could not succeed. The statutable provisions relating to the charges for the carriage of goods of the character of those forwarded by the plaintiff will be found in the Acts 5 & 6 Vict., c. 55, and 7 & 8 Vict., c. 85. Both oblige soldiers with their luggage, stores, ammunition and other necessaries and things to be carried by the railways, but the first left the payment to be settled between the Secretary at War and the Company, and the 1 18th Nov. 1878; vol. L., p. 496. second substituted for this a fixed rate of twopence per ton per mile. The case of the Attorney-General v. The Great Southern and Western Railway, Ireland (reported in Irish Common Law Reports, 447) decided that in order to take advantage of the provisions of the 12th section of the second Act (that which regulates the charges by the Company) it was not necessary that the public baggage, stores, &c., should be accompanied by the whole regiment or battalion to whom they appertained, as passengers at the same time upon the railway. This section, in its recitals from the previous statute, quotes the words, whenever it is necessary to move any of Her Majesty's officers or soldiers, with their baggage, stores, &c., and these words. were held to be satisfied by any officer or soldiers accompanying the baggage, stores, &c., the public baggage, stores, &c., being theirs in the only sense in which what is public can be theirs, as having the present custody of it, whether designated for their use or not. I am by no means satisfied that the true construction of this section is not that the provision as to the rate of charge for carriage of public baggage, stores, &c., is quite independent of the circumstance whether or not such baggage, stores, &c., are accompanied by soldiers, but as the view taken in the case I have cited is that suggested in the pleadings and argument of the appeal before us, I also shall for my judgment adopt it. The question before us is raised upon a demurrer and the pleadings preceding it. The carrier alleges that a necessity had arisen for moviug upon the railway military forces with their public baggage, stores, &c.; a contract by him with the proper authorities for moving such baggage, stores, &c., at the rates provided by the Act; that officers and soldiers accompanied such baggage, stores, &c.; that the military forces were always ready and willing to give their assistance in loading and unloading such goods-that is, he avers in pleading, all the various matters, which, if the baggage, stores, &c., were transmitted and accompanied only by military persons, can be suggested as conditions to the assertions of their right to have the goods carried at the statutable rate- and then complains that notwithstanding the railway company exacted charges exceeding twopence per ton per mile. Upon the assumption of all the matters thus stated having occurred, which, in the argument of a demurrer, we must make, it seems uncontroverted that if there had been no contract between the military authorities and the carrier, and if the baggage, stores, &c., had been solely in charge of officers and soldiers, the rate of charge for carriage would have been twopence per ton per mile. Then did the fact of the interposition of a contract with a carrier alter the rate of charges, and if so can the carrier sue to recover for overcharge? The Court of Exchequer seems to have answered the first question in the affirmative and the second in the negative. We have arrived at conclusion differing from theirs, but it must be observed that cases have been cited before us1 and principles deduced from those cases, which do not seem to have been submitted for their consideration. With respect to the first question, namely, whether the rate of charge was different because of the contract with the carrier it is to be observed that a route or order from the proper military authorities was produced to the officer of the railway company, that no doubt or controversy either at the time of transmission or since has arisen as to the baggage, stores, &c., being public baggage, stores, &c., and that it was accompanied by soldiers. Then why should the addition of a civilian to the soldiers, whether he were contractor or overseer or attendant, make the baggage, stores, &c., less public baggage or alter the rate for which as such public baggage, stores, &c., when accompanied by soldiers, it ought to be carried? The object was to diminish the cost to the nation of transmitting military stores, &c., and this object may be attained alike whether they are in charge of soldiers and a contractor, or of soldiers only. We cannot doubt that the payment under a contract upon the basis of the carrier having to pay railway companies only the statutable fares would be less expensive to the War Department than it otherwise would be, indeed in the present instance it is pleaded that on the railway the carrier was to convey at these rates. In the case of Read v. Willan (2 Douglas Reports, 422) cited in argument, a contractor supplying horses for the artillery was held entitled to the benefit of the Mutiny Act, which obliged dragoon horses to be fed without charge. I fail to see the distinction in principal between that and the present case. Then, if the true rate was twopence per ton per mile, is not the appellant who paid more entitled to have the excess refunded? The very learned judge who delivered the judgment of the Court of Exchequer now appealed from, adopts and approves of the dictum of Mr. Justice Willis, in the Great Western Railway Company v. Sutton (Law Reports, 4, House of Lords, 225, 249) as I do also, that where a man pays more than he is bound to do for the performances of a duty which the law says is owed to him for nothing or for less than he has paid, there is a compulsion in respect of which he is entitled to recover the excess by action for money had and received. Mr. Robertson, in order to have the goods conveyed to their destination, was obliged to pay the fares required by the officers of the defendant Railway Company, and he is entitled to demand back the amount by which he overpaid them. Chief Justice May concurred. Chief Justice Morris concurred. The contractor brought the judgment of the Court of Exchequer to my notice, and these cases were supplied to his counsel. Read v. Willan, 2 Doug. Rep., 422; L. & S. W. Rail. Co. v. Reeves, 1 L.R. (C.P.), 580; Toomer v. Reeves, 3 ib., p. 62. 27 & 28 Vict., c. 53. 14 & 15 Vict., c. 93. The term "the Admiralty" means the Lord High The term "summary jurisdiction" means as follows: As to Scotland, the Summary Procedure Act, 1864; The term "court of summary jurisdiction" means- In Scotland, the sheriff or sheriff substitute. of terms. "Summary Jurisdiction Acts." "Court of summary jurisdiction." 3. This Act shall apply to all stores under the care, superin- Stores to tendence, or control of the Secretary of State or the Admiralty, which the Act applies. or any public department or office, or of any person in the service of Her Majesty, and such stores are in this Act referred to as Her Majesty's stores. The Secretary of State, Admiralty, public department, office, or person having the care, superintendence, or control of such stores are hereinafter in this Act included in the expression public department. 4. The marks described in the first schedule to this Act may Marks in schebe applied in or on stores therein described in order to denote dule appropriated for Her Majesty's property in stores so marked; and it shall be law- public stores. ful for any public department, and the contractors, officers, and workmen of such department, to apply those marks, or any of them, in or on any such stores; and if any person without lawful authority (proof of which authority shall lie on the party 138 & 39 Vict., c. 25, passed 29th June 1875. |