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![handle is hein.slavery/ssactsengr0003 and id is 1 raw text is: SCOTT V. AVERY [1855-56]
of the Court below. It is hardly necessary that I should add anything to the
reasons so ably and clearly stated in the opinion just delivered by Mr. Baron
Alderson on behalf of himself and the other Judges. The only observation I would
make is this: there was in the course of the argument one difficulty which presented
itself to my mind, and one only; it was glanced at in the latter part of the opinion
of the learned Judges. It was this: cases possibly might arise in which there would
be very great difficulty in saying how much of any gross sum that was to, be paid
to the East Lancashire Railway Company, in respect of the traffic of particular
passengers or goods, was attributable to that part of the journey which related
to passing over the line of the Lancashire and Yorkshire Railway Company. Sup-
pose a passenger to come from a great distance, say from Edinburgh, and to go
to Manchester, he pays a gross sum of money; it might be that there would be a
difficulty in saying how much of that gross sum was to be attributed to his passing
over the East Lancashire Railway. It is essential, for the purpose [809) of carrying
into effect the contract in question, that that should be capable of being ascer-
tained, and inasmuch as cases might arise in which it would be difficult, if not
impossible, it occurred to me that that might occasion some obstacle in this con-
struction of the contract. But the solution that I have given in my own mind
to that difficulty is quite satisfactory, as far as I am concerned. It is this : although
I entirely concur in the judgment of the Court below, I am not prepared to say
that by special contract the East Lancashire Railway Company might not deprive
themselves of the benefit of this contract which they have made with the Lanca-
shire and Yorkshire Railway Company. Suppose, for instance, they were to
stipulate that, for their own accommodation, a particular individual should come
every morning, bringing the newspapers of the day from Manchester to Bury, or
for any other purpose, and should therefore travel without paying any toll; it would
be impossible to say what proportion of a sum should go to the Plaintiffs' company,
because there would be in that case nothing to pay. So, if instead of paying a sum
of money some benefit is conferred upon the East Lancashire Railway by a par-
ticular individual, as, for instance, by his allowing che use of' a house of his, or
a field of his, and in consideration of that it is agreed that he shall be always
allowed to travel toll free, how is that to be apportioned? In that case I think
that this contract would not apply. That is the solution which I should give to a
case of that sort. In an ordinary case, which is not only an ordinary case, but
which would probably be the universal case, parties would always pay a certain
amount of toll, and a proportion of that capable of easy calculation will be that
which the company is to pay in respect of using the line. That being so, I entirely
concur in the opinion which has [810] just been delivered by the learned Judges,
that it does not matter whether the traffic comes on to the line from Edinburgh, or
starts at once from Rawtenstall; still for whatever proportion it travels upon the
line, it is traffic upon the line within the meaning of the contract. Therefore I
humbly move your Lordships to. affirm the judgment of the Court of Exchequer
Chamber.
Judgment for the Defendants in Error.
[811] ALEXANDER SCOTT,-Plaintiff in Error; GJORGE AVERY,--Defendant
in Error [June 25, July 9, 1855; May 19, July 10, 1856].
[Mews Dig. i. 539, 540; iv. 136; xiii. 1324, 1362. S. C. 25 L.J. Ex. 308; 2 Jur.
N.S. 815; 4 W.R. 746. Followed in Trainor v. Phoenix Fire Insurance Co.,
1892, 65 L.T. 825; Scott v. Mercantile Accident and Guarantee Insurance Co.,
Lim., 1892, 66 L.T. 811; and Caledonian Insurance Co. v. Gilmour (1893), A.C.
85.]
It is a principle of law, that parties cannot by contract oust the courts of their
jurisdiction; but any person may covenant that no right of action shall
accrue till a third person has decided on any difference that may arise
between himself and the other party to the covenant.
H.L.x. 1121 36
V H.L.C., 809](ViewImageLocal?handle=hein.slavery/ssactsengr0003&div=1&collection=&method=preview&ext=.png&size=3)