Beal and Another v The South Devon Railway
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1864 |
| Date | 02 June 1864 |
| Court | Exchequer |
English Reports Citation: 159 E.R. 560
IN THE EXCHEQUER CHAMBER.
S. C. 12 W. R. 1115; 11 L. T. 184. Approved, Manchester, Sheffield and Lincolnshire Railway v. Brown, 1883, 8 A. C. 703. Referred to, Grill v. General Iron Screw Collier Company, 1866, L R. 1 C. P. 612; Giblin v. The Mullen, 1869, L R 2 P. C. 336, Dickson v Great Northern Railway, 1886, 18 Q B D. 192, sutchiffe v. Great Western Railway, [1910] 1 K. B. 482
the lessee which have been broken : and upon its determination it became one of the muniments of the lessor's title. The plea expressly avers that before the plaintiff became administrator the deed belonged to the lessor, and the lessee ceased to have any right, title, or interest therein. [Bramwell, B, That is not a statement of fact, but a conclusion drawn from the premises Pollock, C. B. A demurrer only admits that which is correctly pleaded. This is not, because it is a conclusion wrong in law.] At all events the deed belongs as much to the lessor as the lessee, so that neither party can maintain against the other detinue or trover for it, LMartin, B. What authority is there for that position There are constant applications at Chambers for liberty to inspect a lease in the possession of the lessee, on the ground that he holds it as trustee for the lessor.] With respect to the ninth plea, the point has never been determined. It is clear that at law an executor de son tort may give in evidence, in mitigation of damage, that he has paid debts in due course of administration with all the assets which ever came to his hands: A nonymoms (12 Mod. 441). In such case the rightful executor can otily recover nominal [336] damages. Therefore this plea is good equitable defence, on the ground that an executor de son tort ought not to be subject to the costs of an action when be has properly distributed the assets. Bereeford was not called upon to reply. POLLOCK, C. B. I am of opinion that both pleas are bad. Indeed, it seems to me that the case scarcely admits of argument. Our judgment will therefore be for the plaintiff. MARTIN, B. I am of the same opinion. The judgment of Tindal, C J., in Hall v. Ball is a conclusive authority against the third plea BRAMWELL, B. I am of the same opinion. Independently of flail v. Ball, I think the plaintiff is entitled to judgment on the demurrer to the third plea On the other hand I think that case is conclusive. The ninth plea is clearly bad. The defendant, who has wrongfully taken possession of the assets of the deceased, says that he has exhausted them in the payment of debts ; but for anything that appears he may have paid his own debt while the rightful executor was also a creditor of the deceased. Judgment for the plaintiff. MEgORANDI1111. In this term the Lord Chief Baron invited the Serjeants-at-law, not having Patents of Precedence, to take their seats within the Bar during the sittings of the Court in Banco. OM TRINITY VACATION, 28 VICT. IN THE EXCHEQUER CHAMBER. (Appeal from the Court of Exchequer.) BEAL AND ANOTHER V THE SOUTH DEVON RAILWAY. June 2, 1864,A railway Company gave public notice that fish would only be conveyed on their line by special agreement, and by particular trains ; and that the sender should sign the following conditions : " The Company shall not be responsible, under any circumstances, for loss of market, or for other loss or injury arising from delay or detention of train, exposure to weather, stowage, or from any cause whatever other than gross neglect or fraud." Held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the conditions were just and reasonable, within the...
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