fSl\? i THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW IT, LONDo^\ isr; ORTH, 2nd Edition. 3vo. 25s. cloth. Bdictions in the [ice. 4th Edit. r i. 8vo. 12s. cl. est 8vo. 9s. cl. 's of Real Pro- i* Pews. 2 vols. I- Robs li Coot( Davis C. Davi! b\ Redn Hunt Seabt V Heal( 8\ Mich It Fawc Saun _ Cutler's tja-\ Davis's Law Rouse's Pra iiient, as to BuUey and '. Hunt's Law E(li(io. Heaven .. ..29 Attorney-General t). Seddon .. 170 ' V. Birming- ham, &c. Railway . . . . 295 Austin V. Manchester, &c. Rail- way .. 94,109,143,153,176 Baker V. Bolton .. ..231 Balfe V. West 3 Barker v. Midland Railway 254, 277 V. Taylor . . . . 49 Barrett v. Great Northern and Midland Railway . . . . 279 Bastard v. Bastard . . . . 202 Batson v. Donovan 35, 37, 85, 86, 130, 200 Baxendalev. Great Western Ry. 284, 285, 290, 294, 297, 298 V. Hart .. .. 100 V. North Devon Ry. 291 Beachey v. Brown . . . . 76 Beadell v. Eastern Counties Railway . . . . 254, 278 Beale i. South Devon Ry. 7, 265, 269 Beauchainp v. Powley .. 10 Beckford v. Greatwell 129, 142 Beech ». Evans .. .. 93 Beecham, R. y. . . . . 256 Behrens v. Great Northern Rail- way ., .. .. 102, 118 Bell V. Midland Counties Ry. 229 Benett v. Peninsular Co. 19, 22, 72 Bennett v. Dawson . . . . 129 V. Manchester, &c. Ry. 295 PAGE Benyon v. Cresswell .. .. 320 Bird V. Great Northern Ry. 128, 135 Birkett v. Great Western Ry. 128 V. Whitehaven Co. . . 168 V. Whitehaven Jiinction Railway .. ..135 V. Willan .. 93,131 Blackmore v. Bristol & Exeter Railway .. 4,8,44,126,278 BlackpQol Board v. Bennett . . 255 Blake v. Midland Railway . . 230 Blech «j. Ballaras .. .. 134 Blyth V. Birmingham Water- works .. .. ..126 Boch D. Gorrissen .. 196,197 Bodenham v. Bennett . . 85, 131 Booth D. Marten .. .. 170 Boridge t;. Grand Junction Ry. 187 Boss V. Lytton . . Bostock V. North Staffordshire .Railway Bourne v. Gatliffe Bowman v. Brown Boyce v. Chapman Boys V. Pink Bracegirdle v. Hincks Bradiey v. Waterhouse Bremner v= Williams . . Briddon v. Great Northern Rail- way 77, 253 Bridge v. Grand Junction Rail- way 156,159 Brind v. Dale 13, 15, 55, 158, 316 30 .. 76 .. 50 .. 215 182 62, 116, 118 .. 214 .. 37 .. 28 Broadwater v. Blot Brooke v. Pickwick Brown r. Hodgson Royal .. 7 17,86 ..207 Insurance 16,185 Company Browne v. Gatliffe . . . . 320 Buckman y. Levi .. .. 65 Burrell v. North . . . . 57 Burroughes v. Bayne . . ..190 Burton v. Great Northern Ry. 114 Butcher v. London & South Coast Ry. 43, 49, 56, 155, 175 INDEX OF CASES. TAGE Butler «. Basing ., 171,220 V. Hearne .. .. 104 t). Woolcott .. ..196 Butt V. Great Western Railway 117, 178, 181 Buttcrfield v. Forrester 15G, 187 Cailiff V. Danvers . . 8, 65 Cairns v. Robins . . . . 6(i Calder, &c. Company i>. Pilling 254 Caledonian Railway v. Cole . . 227 CariJue v. London and Brighton Railway .. 24, 128, 135, 219 Carr v. Lancashire and York- shire Railway 93, 95, 110, 128, 139, 146, 184 Case V. Midland Railway . . 322 Catcrham Railway v. London and Brighton Railway 245, 278, 281, 296 Cavenagh t). Such .. .. 172 Chandler t). Broughton .. 170 Chase y. Westmore .. .. 199 Cheesman i>. Exall .. .. 191 Child V. Hudson's Bay Co. .. 253 Chilton V. London and Croydon Railway . . . . 248, 253 Chippendale v. Lancashire and Yorks.Railw. 36,39, 110, 139, 145 Christie v. Griggs . . . . 133 Clarke V. Earnshaw .. 5, 128 Clayton v. Hunt . . . . 102 Coates V. Chaplin . . . . 209 Coggs D. Bernard .. 2,3,5,17 Coleman v. Riches .. 166, 167 Colppepper v. Good . • . . 59 Collen t). Wright .. ..172 Collett V. London and North- western Railway . . . . 25 Collins V. Bristol and Exeter Railway 69, 70, 134, 167 V. Cave 228 Cooke V. Wilson . . . . 209 Coombs V, Bristol and Exeter Railway .. 50,199,209,210 Cooper V. London and South- western Railw. 44, 277, 283, 297 Coppin V. Braithwaite . . . . 29 Corbett v. General Steam Co. . . 235 V. Packington.. .. 7 Corcoram t), Gurney .. .. 80 Cornmann v. Eastern Counties Railway .. 25, 30, 129, 157 Cotterill v. Starkey . . . . 30 Cotton V. Wood 30, 129, 134, 156, 157 Cowley V. Mayor of Sunderland 162, 322 Cox v. Midland Railway .• 173 PAGE Coxon V. Great Western Ry. 71, 266 Crawshay «. Homfray . . .. 198 Crickman v. Eastern Counties Railway 297 Crofts V. Waterhouse .. 21, 137 Crouch V. Great Northern Rail- way .. 88,201,229,309 V. Great Western Rail- way .. 51,183,188,189 ^ V. London and North- western Railway 19, 24, 72, 86, 105, 155, 202, 218, 249 Cutter V. Powell ,. ..113 Dale?;. Hall .. ..33, 54,315 Dalton V. South-Eastern Railw. 231 Dalzell t!. Tyrer .. ..168 Dansey v. Richardson . . . . 5 Dartnall w. Howard .. .. 9 Davey v. Mason 62, 117, 217 Davies v. Garrett 33, 132, 317 V. London and North- western Rail. 228, 229 D.Mann .. .. 156 Davis D. James .. .. 210 Dawes u. Peck , . .. •• 61 Day V. Holloway .. ..228 De Mattos J). Gibson .. 224,230 Denton v. Great Northern Rail- way 29, 112 Dingle u. Hare 227 Doorman v. Jenkins 3, 10, 12, 125 Dover v. Mills 59 Duckworth v. Johnson. . 229, 230 Duff p. Budd 131 Duignan w. Walker .. .. 234 Dunlop «. Higgins .. .. 226 V. Lambert .. 61, 207 Dutton V. Solomon . , 207, 209 East India Company v. Pullen 155 Eastern Counties Railway v. Broom 173, 247, 248 1). Hawkes 76 Edwards v. Great Western Rail- way . . . . 307 r. Sherratt ..38,81,317 Ellis V. London and South- western Railway 157 V. Sheffield, &c. Railway 168 Elwell V. Grand Junction Rail- way 216, 259 Emblin v. Myers . . . . 229 Evans v. Hutton .. .. 185 Field D. Newport .. ..201 Finnic v. Glnsgow, &c. Co. . . 86 Finucane «. Small .. 8,178 INDEX OF CASES. XI PAGE Fletcher «. Inglis .. .. 80 V. Tayleur . . . . 223 Forward v. Pittard 17, 63, 74, 79, 128, 316 Fowles t). Great Western Rail- way 62, 71, 167 Fragrano v. Long . . 54, 209 Franklin v. South-Eastern Rail- way 230 Fray v. Vowles . . . . 228 Freeman v. Birch . . . . 209 Frere, R. v. 164, 200, 247, 254 Gainsford v. Carroll . . . . 228 Garnett v. Willan .. ..133 Garside v. Trent Navigation 10, 45, 63 Garton v. Bristol and Exeter Railway 201, 202, 290, 294,296, 311, 313 i;. Great Western Rail- way . . . . 256, 290, 294 GatliflFe v. Brown . . . . 75 Gayford t). Nicholls .. ..169 Gee V. Lancashire Railway . . 222, 226, 236 Gibbon v. Paynton 18, 37, 83, 84, 128 Gilbart v. Dale . . 45, 60, 218 Giles V. Taff Vale Company 45, 47, 188 Gisbourn w. Hurst .. .. 16 Goffj;. Great Northern Railway 173, 229, 247, 248 Golden D. Manning .. 38,51,53 Goodman V. Kennell .. .. 170 Gosling y. Birnie .. .. 189 11. Higgins . . . . 185 Great Northern Railway v. Har- rison 175,219 V. Hawcroft 112 V. Morville 18, 107, 146 V. Shepherd 244 Great Western Railway tJ.Good- man .. 40, 111, 175, 254, 255 V. Rimmell 179, 180 Green v. London General Omni- bus Company .. 162,247 Greenland ?;. Chaplin .. .. 161 Griffiths V. Gidlow .. ..170 V.Lee ..45,54,218 Grote V. Chester and Holyhead Railway .. .. ..21 Hadden i>. Ayers .. .. 76 Hadley v. Baxendale 222, 224, 225, 226, 228 PAGE Hadley D. Clarke .. ..185 Haigh V, Brierley Union . . 76 Hall J). Wright .. 76, 185 Hamlin v. Great Northern Rail- way .. .. 222, 227, 229 Hardman D. Willcock . . ., 191 Harris t). Cockermouth, &c. Ry. 281 D. Costar .. .. 25 «;. Packwood .. .. 200 Harrison v. London & Brighton Railway 136, 149, 245, 260, 264, 267, 271 Hart V. Sattley .. ..210 Haseler y. Lemoyne .. .. 167 Hawkes ?;. Smith ,. ., 45 Hawthorn v. Hammond . . 29 Hayman V. Raymond .. .. 214 Hearn v. Garton . . . . 249 V. London and South- Westn. Ry, 82, 93, 103, 118, 154 Heath y. Morrison ., ., 170 Hede v. Atlantic Steam Comp. 236 Helsby t). Mears .. ,. 62 Henderson v. South-Eastern Railway . . . . . . 65 Higgins «;. Bretherton .. 199 Ilinton V. Dibbin 6, 86, 151, 176 Hochster ?;. Latour .. ..113 Holden t). Ballantyne . . .. 213 Holderness v. Collinson 196, 197 Hole V. Sittingbourne Ry, 162, 168 Holland v. Gore . . . . 233 Hozier v. Caledonian Railway 281 Hudson V. Baxendale .. ., 188 Hughes D, Great Western Rail- way 108, 111 Hungerford Company v. City Steam Boat Company .. 274 Hunter «. M'Gown .. .. 318 V. Prinsep . . . , 203 Hutchinson D, Guion .. 249 Hyde v. Trent Navigation 45, 46, 63, 75, 219 Ingate v. Christie . 18 Israel v. Clark . . • •• 28 V. Jackson 200 Jackson v. Rogers , , 35 Jefferies v. Great Western Rail- way . . 190 212 Jencks v. Coleman , , 29 Jewell V. Stead ., 234 Joel V. Morrison 170 John, The 203 Johnson v. Midland R ailwf ¥•• 35, 95, 136, 184, 201, 238 246 249 Jones V. Davies . 216 Xll INDEX OF CASES. Jones V. Eastern Counties Rail- way 280 Josling V. Irvine . . 225, 226 Kent V. Great Western Railway 256 Rcr V. Mountain . . . . 28 Kerr v. Willan .. .. ..84 Kieran t). Sanders .. .. 189 King «. Meredith .. .. 207 Knight w. Fox . . .. .. 169 Laclough II. Tovvle .. ..190 Lake v. Butler 234 Lane v. Cotton 16, 33, 34, 202 Langley f. Brown .. .. 130 Latch V. Rumner Railway 25, 129, 134 Laugher i;. Pointer .. ..169 Lawrence w. Matthews .. 193 Lech V. Maestaer . . . . 128 Lee V. South- Eastern Railway 292 Legge t). Tucker .. 213,235 Leuckhart «. Cooper .. 196,199 Lewis V. Great Western Railway 270 Lickbarrow v. Mason 193, 195, 199 London and North - Western Railway f. Dunham .. 264 Long ?;. Home .. .. 28 Lovett V. Hobbs .. .. 21 Lygo i;. Newbold .. .. 167 Lyon V. Mells 134, 140, 317, 320 Lyons v. Marten 166, 170, 172 M' Andrews. Electric Telegraph Company 16, 94, 112, 148, 260, 271 M'Carthy t). Young ,. .. 4 Machu V. London and South- western Railway .. 177,182 Machlin v. Waterhouse . . 86 M'Manus v. Lancashire and Yorkshire Railway 34, 93, 98, 106, 149, 154, 200, 239, 259, 262, 263, 265, 266 Mander v. Cooper . . . . 28 Manley v. St. Helen's Company 322 Marfell v. South -Western Rail- way . . . . . . 7, 242 Marriott v. London and South- western Ry. 277, 278, 296, 297 Marsh v. Home . . . . 86 Marshall v. York and Berwick Railway .. 213 i: York and Newcastle Railway .. .. 94,214 Martin v. Great Northern Rail- way .. .. 156,184,186 Mayhew v. Boyce . . . • 29 PAGE Mayhew v. Eames . . 37, 86, 99 1;. Nelson .. ..116 Max t). Roberts .. .. 215 Mercer f. Jones .. .. 219 Meredith r. Meigh .. ..210 Metcalfe v. London and South Coast Railway 179, 180, 182, 213 Middleton, Ex parte .. .. 204 «. Fowler.. .. 166 Midland Railway v. Bromley 46, 60 Miles V. Cattle 128 Milligan V. Wedge .. .. 169 Mitchell ?;. Crasweller.. .. 167 Morewood t). Pollock .. ..319 Morgan D. Ravey .. ..156 Morse w. Slue .. .. 94,317 Motteram v. Eastern Counties Railway .. .. ..256 Mounsey v. Penott .. .. 217 Munster f. South-Eastern Rail- way 33,35,39,44,244,263,271 Muschamp v. Lancaster and Preston Ry. 67, 134, 136, 167 Myttoni). Midland Railway 71,245 Naylor y. Mangles .. .. 196 Nelson t). Mackintosh .. 10 Newbon t). Just • .. .. 58 Nicholson v. Great Western Ry. 291,292,293,296, 297,298 ■!;. Willan .. ..94 Norwich, Mayor of, v. Norfolk Railway 76 Norwood V. Pitt .. ..236 Oakley w. Portsmouth, &c. Rail- way 36, 81,317 Ogle «. Atkinson .. ..190 Olive V. Eames . . .. 171 Oppenheim ?;. Russell .. 199 Overton t). Freeman .. .. 169 Owen V. Burnett .. 116, 118, 150 Oxlade v. North-Eastern Rail- way . . 34, 239, 280, 297 Painter, Ex parte . . 278, 296 Palmer v. Grand Junction Rail- way .. 136,138,238 J). Naylor .. .. 81 Pardington v. South -Western Railway .. .. 265, 266 Parker v. Great Western Rail. 201 274, 300, 301, 308 V.James .. .. 132 Patten v. Great Western Ry. 214 Peachey t). Rowland .. 168,169 Peek V. North Staffordshire Railway , . 260, 265, 272 INDEX OF CASES. Xlll PAGE Pegler w. Monmouthshire Ry. 313 Phillips V. Clark .. 148, 177, 179 i;. Edwards .. 112,129 Pianciaiii D. South -Western IJy. 96, 119, 215 Pickford v. Grand Junction Railway 35, 36, 201, 218, 298 Piddington v. South-Eastern Railway .. .. 201,310 Plant V. Oxford and Worcester Railway 228 Pole V. Cetcovitch Portman ji. Middleton. , Powles V. Hider Pozzi V. Shipton Prior V. Wilson Quarman v. Bennett . . rer v. Duff 53,77 .. 225 .. 168 214, 215 .. 227 .. 170 55, 183 Randall v. Roper Randleson v. Murray . . Ransome v. Eastern Counties Ry. 276, 279, 283, 293, 296, Raphael v. Pickford . . 52, R. V. Beecham . . — V. Boulton . . — V, Humphrey — V. Irish South-Eastern Ry. — V. Trebilcock Reg. V. Frere 164, 200, 247, V. Grand Junction Ry. . . Rex V. Ivens Reedie v. London and North- western Railway .. .. Reeve v. Palmer Rich V. Kneeland Richards v. London and South- Eastern Ry. 42, 49, 56, 62, Richardson v. Barnes . . t>. Dunn .. 1). Sewell.. 134, Rigby V. Hewitt Riley v. Baxendale V. Home . . . . 36, 86 Ritchie v. Atkinson Roberts «;. Smith Robin V. Steward JSobinson v. Dunmore.. 15 Roe I/. Birkenhead Railway 247, Rooke t). Midland Railway .. Rooth V. Wilson . . 3, 9, Ross V. Hill Rothschild, De, v. Royal Mail Steam Company Rowley V. Home Rushforth v. Hadfield . . 195, 225 65 297 218 256 256 196 240 205 254 314 29 168 2 315 174 233 228 316 161 170 , 93 203 170 229 , 42 218 198 125 15 82 85 197 PAGE Sadler r. Henlock .. 167,169 Sandiman v. Breach . . . . 204 Sanquer v. London and South- western Railway 210, 219 Sargent V. Morris .. 208,210 Schilizzi v. Derry . . . . 76 Scothorn v. South Staffordshire Railway 68, 72, 163, 167, 187 Scott ?;. Lewis .. .. .. 193 Seymour v. Greenwood 167, 170 Sharp V. Grey .. .. 28, 133 Sharrod v. North- Western Ry. 166 Shaw V. York and Midland Railway .. 36, 39, 108, 142 Sheridan v. New Quay Com- pany .. 49, 50, 61, 191, 210 Shiels V. Great Northern Ry. . . 235 Simon y. Ward.. .. .. 213 Simons v. Great Western Rail- way 263, 266 Siordet v. Hale . . 77, 78 Skinner v. London and Brighton Railway . . 24, 25 V. Upshaw . . . . 196 Sleat V. Fagg . . . . 85, 93, 132 Slim V. Great Northern Rail- way . . .. 69, 107, 173 Smith V. Birmingham Gas Com- pany ,. .. .. 171 V. Home .. . ..130 V. London and Brighton Railway .. ..116 V. Shepherd . . . . 80 Smeed ?;. Foord .. 224,226 Soutlicote's Case .. .. 94 Sparke i). Heslop .. .. 227 Sparrow v. Caruthers .. .. 155 Spears «;. Hartley .. .. 196 Steil V. South-Eastern Railway 169 Stephenson v. Hart 48, 130, 187 Stevens v. Midland Railway . . 247 Stevenson v. Blakelock .. 199 Storr «;. Crowley .. 49,183 Stoessgert;. South-Eastern Rv. 117 Streeter t). Horlock .. 113,163 Stuart i;. Crawley .. 136,155 Sunbolf ?;. Alford .. ..199 Sutton I. Mitchell .. 317,318 Swan V. Shepherd . . . . 209 Sweet u. Pym .. .. .. 199 Syms V. Chaplin 60, 118, 171, 217 TafFVale Railway v. Giles 173, 188 Tattan v. Great V\ estern Rail- way 213, 235 Taylor v. Crowland Gas and Coke Company ., .. XIV INDEX OF CASES. PAGE Theobald v. Railway Assurance Company .. .. .. 230 Thomas v. Day . . 8,65 Thompson v. Gibson . . . . 233 V. Hopper . . . . 320 V. North-Eastern Railway .. .. 80,128 Thorogood v. Bryan .. 159, 214 Tollemache v. London and Great Western Railway .. 199,247 Toovey r. London and Brighton Railway .. .. 129, 158 Trebilcock, R. v 205 Trent Navigation v. Wood .. 315 Tucker D. Chaplin .. ..214 Tutfw. Warman .. 156,162 Turley v. Thomas . . . . 29 Upston V. Slark . . . . 85 Vaughan r. Menlove .. ..129 v. Tatr Vale Company 162 Vennale r. Carver .. .. 156 Vernon v. Hodgson . . . . 50 Vlierboom v. Chapman . . 203 Vose V. Lancashire and York- shire Railway . . ..170 Waite V. North- Eastern Rail- way .. .. .. .. 157 Wakeman t). Robinson .. 30 Walker?;. Goe 228 . V.Jackson .. 91,320 V. Midland Railway .. 259 V. York and Midland Railway .. 99,100,104,106 Wardell v. Mourillyan .. 315 Warlow u. Harrison .. ..112 W'aters v. Towers . . . . 226 Watson V. Ambergate, &c. Railway . . . . . . 68 W^ayde v. Carr 29 Webbt). Page .. 216, 217,219 PAGE Webb, Re 64 Whitamore v. Waterhouse . . 172 White V. Bartlett .. ..191 V. Great Western Rail- way .. 93,112,219,264 V. Hale .. ••232 D.Humphrey .. .. 11 Whitehead v. Anderson 194, 195 Whitehouse v. Birmingham, &c. Company .. 322 V. BirminghamCanal Company .. .. ..129 Whitfield V. Lord De Spencer 16 Wiggett V. Fox 168, 169, 170 Wilby V. West Cornwall Rail- way . . . . . . . . 70 Williams i;. Cranston .. 171, 218 . V. Currie . . , . 228 V. Great Western Ry. 254 '■ «. Gusey .. .. 58 «;. Lloyd .. ..316 Wilson V. Anderton . . 190, 195 V. Brett 3, 6, 121, 126 • r. Dickson .. .. 319 • V. Lancashire and York- shire Railway . . 222, 226 Wingfield v. Parkinson 113, 176, 202 Wise V. Great Western Railway 262 Wolf D. Summers .. .. 199 Woodard v. Eastern Counties Railway 248 W'oodward v. Booth . . . . 57 Woolley V. Batte .. ..213 Wren v. Eastern Counties Rail- way 52, 270 Wright j;. Snell .. 93,198 Wyld V. Pickford 6, 35, 90, 131, 150, 200, 218 York, Newcastle, &c. Railway V. Crisp 107 York i. Greenaugh .. ..196 INDEX OF STATUTES. PAGE 6 Edw. 1, c. 1 231 43 Eliz. c. 6, s. 2 231, 233 4 Jac. 1, c. 3 231 3 Car. 1, c. 1 203 7 Geo. 2, c. 15 317 c. 1 318 26 Geo. 3, c. 86, s. 2 317,318 39 Geo. 3, c. 58 203 53 Geo. 3, c. 159, s. 5 319 3 Geo, 4, c. 126, s. 130 204 s. 131 204 s. 132 204 7 & 8 Geo. 4, c. 30. s. 22 .... 236 11 Geo. 4 & 1 Will. 4, c. 68 (Carriers Act) see Appendix . . 95 s. 1 96, 221 s. 2 96, 201 s. 3 96 s. 4 ... 37, 38, 89, 96 s. 5 61, 96, 213, 218 s. 6 96 s. 7 96, 221 s.S 96, 176,215 s. 9 96, 221 s. 10 96, 215 s. 11 96 1 & 2 Will. 4, c. 58 192 2 & 3 Will. 4, c. 120, s. 5.... 30 s. 6 31 s.ll.... 31 s. 24.... 31 1 & 2 Vict. c. 98 239 2& 3 Vict. 0. 66, s. 10 31 s. 13 31 s. 27 31 s. 30 31 s. 34 31 s. 35 31 s. 36 31 ss. 37— 44.. 31 s. 47 31 s. 48 31 3 & 4 Vict. c. 24, s. 2 232 3 & 4 Vict. c. 50 322, 323 3&4 Vict. c. 97, s. 1 240 s. 5 240 ss. 8, 9.. 240, 251 PAlii. 3 &4 Vict, c. 97, s. 12 240 s. 13 241 s. 14 241 s. 15 241 s. 16 241 5 & 6 Vict. c. 53, s. 17 241 5 & 6 Vict, c, 55, s. 4 241 s. 6 242 s. 7 242 s. 12 242 s. 15 242 s, 20 240 7 & 8 Vict c. 85, s. 6 242 s. 10 245 s. 11 240 s. 12 240 s, 13 245 s. 15 240 s. 17 240 8 & 9 Vict c, 16, s. 124 2.50 s. 125 250 s. 126 250 s. 127 251 s. 145 251 ss. 145—160, 251 8 & 9 Vict c. 20, s. 11 242 s. 48 242 s, 86 245 s. 87 246 s, 89 , , 88, 246 ss, 98—102 246 s, 103 246 s. 104 247 s. 105 .. 88, 248 s, 108 .. 249, 256 s. 109 251 s. 110 252 s. Ill .. 252, 255 s, 162 239 8 & 9 Vict c. 28 323 8 & 9 Vict, c, 42, ss. 1—3 .... 324 ss. 4—6 325 s. 7 326 8 & 9 Vict c, 88, s. 13 320 9 & 10 Vict c, 57, s, 1 240 9 & 10 Vict c. 93 214,240 9 & 10 Vict, c, 95, s. 28 234 INDEX OF STATUTES. 9 & 10 Vict. c. 95, s. 128. PAGE .234, 235 10 & 11 Vict. c. 85 240 10 & 11 Vict. c. 94 326 13 & 14 Vict. c. 61, s. 11. . 233, 234 s. 12. .233, 234 14 & 15 Vict. c. 64 240 14 & 15 Vict. c. 99, s. 2.. 221 15 Vict. c. 78 236 15 & 16 Vict. c. 54, s. 4.. 234, 235 15 & 16 Vict. c. 76, s. 34. .213, 215 s. 35 .. 213 s. 36 . 213 s. 37 . 213 s. 41 . 214 s. 42 . 206 s. 46 . 206 s. 51 . 207 s. 52 . 207 s. 74 . 216 S.222 . 207 16 & 17 Vict. c. 33 . 31, 201 16 & 17 Vict. c. 127 ... 31, 201 17 & 18 Vict. c. 31 (Railway & Canal Traffic Act, 1854 see Appendix) 36, 246, 25 7,273 PAGE 17 & 18 Vict. c. 31. s. 2 274 s. 3 275 s. 4 275 s. 5 275 s. 6 275 s. 7 . . 258, 260 18 & 19 Vict. c. 11, s. 1 211 s. 2 211 19 & 20 Vict. c. 108, s. 30 235 20 & 21 Vict. c. 54, s. 4 205 21 & 22 Vict. c. 75, ss. 1, 2 ,. 243 s. 3 327 22 & 23 Vict. c. 59 242 23 Vict. c. 22, s. 21 211 s. 23 212 s. 24 212 23 & 24 Vict. c. 41 243, 327 23 & 24 Vict. c. 126, s. 12 . . .. 192 s. 14 193 s. 15 193 s. 16 193 s. 19 213 s. 34 232 s. 36 207,213 A TREATISE THE LAW OF CAERIEES. CHAPTER I. PRELIMINARY VIEW OF THE LAW OF BAILMENTS. The law of carriers is a branch and an extension of the law of bailments. Bailment is derived from the French bailler, to deliver : and a bailment is a delivery of a chattel to another, on trust, for custody, use, elaboration, pecuniary security, or carriage ; with the express or implied condition that, after the trust shall have been fulfilled, the chattel shall be re- delivered to the bailor, or otherwise dealt with according to his request. A bailment has also been defined to be a delivery of a thing in trust for some special purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust (a). It is this trust which constitutes the essence of every contract of bailment ; and hence, in all alleged breaches of baihiient, the first, and generally, the only question is, whether the bailee, in the conduct of his trust, has committed fraud or negligence, either in law or fact. It is this principle also which dis- tinguishes the possession of goods, under a contract of bailment, from a possession by finding. Thus, according to an old authority : — " When one comes to the posses- (a) Story on Bailments, s. 2. 2 PRELIMINARY VIEW OF THE LAW OF BAILMENTS. sion by bailment, then he is chargeable by force of the bailment ; and if the bailee casts them away, or they are taken out of his possession, then he is chargeable to the bailor by force of the bailment; but otherwise it is when one comes to goods by finding, for then he is chargeable by reason of the possession; and if they be out of his possession lawfully, before he who has the right to them brings the action, he is not chargeable (&)." The principles of the law of bailments are laid down in the leading case of Coggs v. Bernard (c) by Holt, C. J. Of the five classes, into which he distributes them, it is only necessary, for the purposes of this treatise, to notice the fourth, which he terms Locatio operis faciendi, and the fifth, Mandatum. The latter form of bailment contains the first principles of the law of carriers, and will therefore be noticed first. 1. MANDATUM, Where Goods are hailed, for work to he done in respect of them, to a person who is to have nothing for his trouhle. In this case, although no action will lie for the nonper- formance of the contract, because it is nudum pactum, and not founded on valuable consideration — yet the bailee will be liable if he enter on the performance of it, and miscon- duct it. This was the case in Cogo-s v. Bernard. There the declaration was for the damage, in transitu, by the defendant's negligence, of goods belonging to the plaintiff, which, it was stated, the defendant had promised to convey safely ; and, after a verdict for the plaintiff, it was moved, in arrest of judgment, that the declaration was bad, because it did not aver that the defendant was a common porter, nor that he was to have anything for his pains. But it was held that, although the declaration would have been bad if it had merely disclosed an unperformed contract on (i) Fitzherbert, J., Year Book, 27 (r) Lord Raymond, 900 ; 1 Smith's Hen. 8, fol. 13, p. 55; cf. Reeve v. Leading Cases, 147, 4th ed. Palmer, 28 L. J. 168, C. P. Sc. Cam. MANDATUM. 6 the part of the defendant; yet, that, since it also showed that the defendant had actually entered on the perform- ance, his assumption of office, coupled with the confidence reposed in him by the plaintiff, created an obligation to employ diligent management, and a liability for negligence ; and that, at the same time, it exempted the bailee from every liability, excepting such as might arise from conscious and wilful negligence. Thus a mandatory of animals is bound to feed and take due care of them, during the bailment ; and a fortiori the same rule applies to bailees for hire{d). But a gratuitous bailee of this class is in the same position as a gratuitous bailee with whom goods are deposited for safe custody. He is bound to employ only slight or moderate care, such as will exonerate him from the charge of wilful negligence; and he is liable for nothing less than gross negligence. Such, at least, appears to be the correct modern view of the law (e) ; and therefore the statement of Holt, C, J., that a bailee of this class is bound to employ diligent management, must be regarded as somewhat ex- aggerated. Mere nonfeasance creates no liability in a bailee of this class ; nor will mere misfeasance, unless the circumstances establish in the minds of the jury such neg- ligence as they consider wilful, and therefore gross (/). Hence it appears that the policy of the law of bailments is to regulate the liability of the bailee by the amount of benefit which he derives from the trust. Where the benefit is wholly on the side of the bailor, and the bailee has nothing for the trouble of custody or performance, the law, in accordance with natural equity, holds the bailee bound to employ such carefulness only as will fairly exonerate him from the charge of wilful, or gross, negligence (g). He {d) Si un clieval soil bail a un (e) 1 Smith, L. C. 183 ii. homme a garder, et apres il ne lui (/) Wilson v. Brett, 11 M. & W. doniie sustenance, p. q. il mourust, 113; Balfe v. West, 13 C. B. 466 j action sur le cas gist. — Hil. Term, 22 L. J. 175, C. P. 2 Hen. 7, 9B. ; see Addison on Con- (g) Doorman «;. Jenkins, 2 Ad. & tracts, 847 ; of. Rooth v. Wilson, 1 B. El. 256. & Aid. 59. B 2 4 PRELIMINARY VIEW OF THE LAW OF BAILMENTS. is not bound to perform a gratuitous contract ; but, if he enter on the performance of it, he must not carelessly betray the confidence of the bailor. Where, on the other hand, the benefit is solely with the bailee, as where goods are lent to him gratuitously for his convenience, common justice as manifestly requires that he should employ the strictest diligence, and be liable for the least avoidable neg- ligence (A). 2. LOCATIO OPERIS FACIENDI. Where Goods are bailed to a person for work to be done on, or in respect of them, for reward. The law of carriers branches out principally from this class of bailment. Holt, C. J., in describing it in Coggs ?'. Bernard, says : " As to the fifth sort of bailment, viz. a delivery to carry, or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts; either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of a com- mon carrier, common hoy man, master of a ship, &c. The law charges this person thus entrusted to carry goods against all events but acts of God and of the enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs obliges them to trust these sorts of persons, that they may be safe in their ways of dealing ; for else these carriers might have an opportunity of un- doing all persons that had any dealings with them, by combining with thieves, &c., and yet doing it in such a clandestine manner as would not be possible to be disco- (/() Blackmore v. B. and Exeter Q. B. ; M'Carthy v. Young, 3 L. T. Bailw. 8 E. & B. ] 035, 27 L. J. 167, Rep. N. S. 785. LOCATIO 0PERI8 FACIENDI. 5 vered. And this is the reason the law is founded on that point." The extraordinary liabiHties to which common carriers are hable are beyond those which belong to other bailees under this class : for the general duty of such a bailee only obliges him to employ an ordinary and average degree of diligence, to preserve the goods or work intrusted to him, against ordinary and extraordinary casualties. For the rule is " that he is only to do the best he can ; and if he be robbed, &c. it is a good account (i)." But he must take at least as much care of the goods as he would take of his own. Thus a watchmaker, to whom a chronometer was entrusted to be repaired, and who deposited it in his shop, where he allowed his servant to sleep, was held hable for a larceny of it by the latter (^), because the watch- maker had deposited his own watches in a more secure place than that in which he had deposited the chrono- meter. A bailee of this class will also be liable for a loss which has been caused by a want of due care or diligence on his part. Where the bailment is for the mutual benefit of the bailor and bailee ; as where the bailor delivers goods to be worked upon or carried ; and a reciprocity of profit arises from the execution of the work, and the payment of reward to the bailee ; the mutuality of the benefit creates in the bailor the obligation to remunerate the bailee, and binds the latter, not merely to take such care of the goods as he would of his own, but also such average and ordinary care as a prudent man would take of them. No clear distinction has been drawn yet between the different degrees of legal negligence ; and the consequence has been a large amount of verbal controversy. It has been said by Story, J., after Sir William Jones, that " there are infinite shades of care or diligence, from the (0 Holt, C. J., Coggs V. Bernard, 23 L. J. 217, Q. B. 1 Smith, L. C, 159 ; cf. notes, 172 ; (k) Clarke v. Earnshaw, Gow. 30. Danscy v. Richardson, 3 E, & B. 144 ; 6 PRELIMINARY VIEW OF THE LAW OF BAILMENTS. slightest momentary thought to the most vigilant anxiety .... There may be a high degree of diligence, a common degree of diligence and a slight degree of diligence .... Common or ordinary diligence is that diligence which men in general exert in respect to their own concerns. It may be said to be the conmion prudence which men of business, and heads of families, usually exhibit in affairs which are interesting to them. Or, as Sir William Jones has ex- pressed it, it is the care which every person of common prudence, and capable of governing a family, takes of his own concerns. It is obvious that this is adopting a very variable standard ; for it still leaves much ground for doubt as to what is common prudence, and who is capable of governing a family. But the difficulty is intrinsic in the nature of the subject, which admits of an approximation only to certainty. Indeed, what is common or ordinary prudence is more a matter of fact than of law. And in in every community it must be judged of by the actual state of society, the habits of business, the general usages of life, and the dangers as well as the institutions peculiar to the age (1)." Accordingly it is for juries, in their discre- tion, to say, according to the circumstances of each case, whether the course pursued by the defendant has been such as a prudent man would have pursued under the same circumstances (m). Similarly, English judges have declined to draw, and even to recognize, any practical distinction between ordi- nary negligence and gross negligence (n). Thus Lord Den- man (o) has " doubted whether between gross negligence and negligence any intelligible distinction exists ;" and Rolfe, B. (p) has said that he " could see no difference be- tween negligence and gross negligence — that it was the same thing, with the addition of a vituperative epithet;" and that (I) Story on Bailments, s. IL (o) Hinton v. Dibbin, 1 Q. B. 661- (m) Vaughan, J.,3 Bing. N. C.477. (p) Wilson v. Brett, 11 M. & W. (n) Parke, B., Wy Id ». Pick ford, 115; cf. Erie, J., 28 L. J. 335, Exch. 8 M. & W. 461. LOCATIO OPERIS FACIENDl. 7 in the case of injury to a chattel by a gratuitous bailee, the proper question for the jury is, whether, on a survey of all the circumstances, the defendant has been guilty of culpable negligence {q). This appears to be the most satisfactory authority and test in every case of loss or damage to a bailor: and the simple and uniform question for the jury will then be, whether, on a due consideration of all the facts, and of the relative duties and liabilities of bailor and bailee — according as the bailment is gratuitous, or for reward — the bailee has been guilty of culpable negligence. Thus an agister, who agrees for reward to take care of and re-deliver cattle to the plaintifF(r), is liable if he leave the gate of his field open, and the cattle stray out and are lost(s). In the latter case Gibbs, C. J., said: "All the defendant is obliged to observe is reasonable care. He does not insure, and is not answerable for the wantonness or mischief of others. If the horse had been taken from his premises, or had been lost by accidents which he could not guard against, he would not be responsible .... If there were a want of due care and diligence generally the defendant will be liable .... Did he apply such a degree of care and diligence to the custody of the horse as the plaintiff who entrusted the horse to him had a right to expect ? I shall leave it to the jury." Accordingly, if there be no want of ordinary diligence in the bailee, he is not liable for either loss or damage. Thus, in Clark v. Earnshaw, the defendant not only suffered his servant to sleep in the shop where the plain- tiff's chronometer was left, but he had removed a large number of his own watches to a safer place ; and this com- bination of facts was held by the jury, on the question of the court, to prove a want of ordinary diligence in the defendant. But where the property is stolen by a servant, without such delinquency on the part of the bailee, the iq) Cf. Beale v. S. D. Railw. 29 {s) Broadwater i>. Blot, Holt, 547 ; L.J. 444, Exch. cf. Marfell v. S. W. Railw., 29 L. J. (r)Corbetti;.Packington,6B.&C. 315, C. P. 268. 8 PRELIMINARY VIEW OF THE LAW OF BAILMENTS. latter is not liable (t). So a warehouseman is only bound to take reasonable and common care of any chattel entrusted to his charge (u), but he will be liable for manifest negli- gence; as if goods be damaged owing to the defective state of the machinery by which he receives them into his house (a:). (t) Finucane v. Small, 1 Esp. 315. (x) Blackmore v. B. & E. Railw. (u) Cailiff «. Danvers, Peake, 8 E.& B. 1035 ; 27 L. J. 167,a B.; N. P. 155, and notes ; see infra. Thomas ». Day, 4 Esp. 262. ( y ) CHAPTER II. ON CARRIERS WITHOUT HIRE, AND CARRIERS FOR HIRE, WHO ARE NOT COMMON CARRIERS. Carriers without Hire. The duties and liabilities of this class are co-extensive with those of mandatory bailees. They are bound to employ only moderate or slight prudence ; they are not liable for breach of contract, if they repudiate it before entering on performance ; and they are liable for loss or damage to the bailor, only in the event of gross or culpable negligence {a). In Coggs v, Bernard (i), the carriage was mandatory, or gratuitous, on the face of the declaration; and the principle which that case establishes is, that if a man undertake to carry goods, and actually receive them to be carried, the confidence reposed in him by the bailor is a sufficient legal consideration to make it the duty of the bailee to take moderate care of them ; and to render him liable for culpable negligence, although he is not a common carrier, and although he is not to have anything for the carriage. This doctrine agrees with that of the analogous bailment Depositum, or gratuitous bailment of goods for safe custody only. This class was described first in Coggs v. Bernard, by Holt, C.J.; and in it, since the benefit is exclusively that of the bailor, it is held that the bailee is liable to him only for gross negligence, and not for common neglect. Thus, where the plaintiff had deposited money with the defendant, a coffee- house keeper, for safe custody and without remuneration : (o) Dartnall v. Howard, 4 B. & C. (b) Supra. 345 ; Rooth v. Wilson, 1 B. & Aid. 59. 10 CARRIERS WITHOUT HIRE, and the defendant had placed it with a much larger sum of his own in his cash box in his tap-room ; but it did not appear whether the cash box was locked ; how far it was a safe place ; nor to what class of people it was accessible ; and the jury found that the defendant had committed gross negligence ; the court held, that the verdict esta- bHshed the plaintiff's case (c). In this case. Lord Denraan told the jury that it did not follow, from the defendant having lost his own money at the same time as the plain- tiff's, that the defendant had taken such care of his money as a reasonable man would take of his own : and this view, which was approved of by the rest of the court, overrules an opposite opinion, which Holt, C. J., delivered in Coggs V. Bernard. Accordingly, where the defendant, a stage coachman, lost a parcel which he had undertaken to carry without hire, Lord Tenterden left it to the jury to say " whether there had been great negligence on the part of the defend- ant; if there was not great and somewhat extraordinary negligence on his part, the verdict ought to be for him" (d). Carriers of this class are held also not to be insurers of the goods, as common carriers are, and are not liable for larceny without negligence, nor for loss by inevitable ac- cident (e). Thus, even where common carriers undertook to warehouse goods gratuitously, after the termination of the transit, and until there should be an opportunity of delivering them to the consignee ; and the goods were accidentally, and without the fault of the defendants, burned during that interval ; the defendants were held to he pro tanto gratuitous bailees, and therefore not liable for the loss (/). Here the gratuitous bailment was treated as supplementary to, and engrafted on, the contract of carriage. (c) Doorman v. Jenkins, 2 Ad. & 237. Ell. 256. (/) Garside v. The Proprietors {d) Beauchamp «;. Powley, 1 M. of the Trent and Mersey Navigation, & R. 38. 4 T. R. 581. (e) Nelson t). Mackintosh, 1 Stark. AND CARRIERS FOR HIRE, &C. 11 But where, in a very similar case, the defendant, as a common carrier, had warehoused goods, in transitu, accord- ing to the plaintiff's original request, and was to be paid for the previous and subsequent carriage, but not for the warehousing ; it was held that if he received the goods into his warehouse for the purpose of being carried for hire afterwards, he was not a gratuitous bailee {g). The dis- tinction between these two last cases appears to be, that in the former the defendants had performed their contract, and were retaining the goods gratuitously for the con- venience and by the supplementary request of the plaintiff, until there should be an opportunity of delivering them ; in the latter, the warehousing being intermediate and during the transit, was treated as part of the original contract of carriage ; and, although it was expressed that the defendant was not to be paid for the warehousing, it was considered by the court that it was substantially connected with the entirety of the carriage, for which a valuable consideration was to be paid. Still these cases exhibit a conflict of laws. In Garside v. The Proprietors of the Trent Navigation, it was also part of the express agreement, that if the plaintiff would employ the defend- ants to carry, the latter would keep the goods without charge until they had an opportunity of delivering them ; and, although BuUer, J. grounded his judgment for the defendants on the principle that " the keeping of the goods in the warehouse was not for the convenience of the carrier, but of the owner of the goods ;" yet the ware- housing at the termination of the transit, and until delivery, seems to have been as much part of the original contract as it was held to have been, during the transit, in White V. Humphrey. Both cases, however, are reported very shortly ; and, although Garside v. The Proprietors of the Trent Navigation was cited in argument in the latter case, it was not noticed by Lord Denman in his judgment. But every principle of public policy is so entirely in favour (g) White V. Humphrey, 11 Q. B. 43. 12 CARRIERS WITHOUT HIRE, of the latter decision, and the inconvenience and confusion arc so manifest which would arise if the liability of a paid carrier could be quaUfied by the insertion during the baihnent of a merely mandatory liability, that there can be little doubt that White v. Humphrey would be upheld on error. It is to be inferred from this case that the courts do not favour the theory of gratuitous bailment, when it is set up as a defence in an action for damage by negligence. It is another instance of the growing disposition of judges to recognize no practical distinction between the different degrees of negligence. There appears, indeed, to be no satisfactory reason, in the principles of jurisprudence, why any should be recognized — why the voluntary good nature which induces a man to offer or consent to a gratuitous kindness should be any excuse for negligence in performing it. The substantial principle of Coggs v. Bernard is, that the confidence reposed by a bailor in a gratuitous bailee creates in the latter an obligation to diligent management ; and, conversely, it is mere natural justice that he should be responsible, not merely for gross, but also for ordinary, negligence (A). Carriers for Hire who are not common Carriers. A contract to carry for hire is not necessarily a contract to carry as a common carrier; and the distinction is im- portant, because it is only in the latter case that the law implies a contract of insurance. Thus, if A., who is not a common carrier, contract to carry goods for B. for hire, he is only a bailee within Holt, C. J.'s definition under the class locatio operis faciendi. A. is a bailee for valuable consideration, and is therefore bound to use ordinary diligence, and to avoid culpable negligence, in performing his contract ; but he does not insure the safety of the goods in the manner in - (/i) Cf. Doorman v. Jenkins, 2 Ad. & Ell. 256. AND CARRIERS FOR HIRE, &C. 13 which a common carrier, who plies regularly from place to place, is presumed to insure them. Accordingly, when goods are lost or damaged by a bailee for hire, who has contracted to carry them for valuable consideration, the first object of the bailor is to prove him to be in the position of a common carrier ; and then the liability of the carrier becomes an included conse- quence of his position. If the bailor fail in this endeavour, he may attempt to show that the carrier has specially and expressly insured the safety of the goods. If he fail here also in his evidence, he may still fix a liability on the carrier by proving him to have committed acts of impru- dence, or to have omitted reasonable precautions, such as will satisfy a jury that the carrier has not been commonly prudent and conscientious in the discharge of his duty. But the bailor will have no case beyond this limit; and the bailee will be exonerated if the jury be satisfied that, notwithstanding the loss or damage, he, or his servants, have exercised ordinary diligence and reasonable skill in endeavouring to perform the trust (i). This doctrine was settled so completely in Coggs v. Bernard, that it does not appear to have been questioned since in banc. It was considered very fully, and not sub- stantially disputed, in Brind v. Doleik). The defendant was a town carman, who plied for hire in a public thoroughfare, but not regularly from one place to another; the plaintiff hired the defendant's servant to carry luggage to a certain point, and also agreed, on the servant's request, to follow the cart and look after the luggage. He did not follow ; and subsequently sued for part of the luggage which was lost during the transit. On these essential facts. Lord Abinger, C. B,, left it to the jury to say, first, whether the defendant was a common carrier; or, secondly, whether there was not a modified contract to the effect that the defendant would carry safely, only if (i) Story on Bailments, s. 457. (k) 8 C. & P. 207 ; and 2 M. & R, 80. 14 CARRIERS FOR HIRE, the plaintiff accompanied ; and, thirdly, whether there was negligence on the part of the defendant's servant. His lordship laid down the general law with remarkable dis- tinctness as follows : — " The first objection that the defendant makes to the plaintiff's recovering in the action is, that he is not a common carrier. My opinion is, that the defendant is not a common carrier; and, if necessary, I will give leave to enter a nonsuit on that point. The next question is, whether the plaintiff delivered these goods to the defendant as a common carrier. Now, a common carrier is in the nature of an insurer; and if he carries without any quali- fication of his liabihty, he becomes an insurer against all but fire, tempest, and the king's enemies, and he insures against thieves and the frauds of his own servants. Still there are cases in which, although a person is not a common carrier, he is liable for the neglect of his own servants. I take it that, if a man agrees to carry goods for hire, although not a common carrier, he thereby agrees to make good losses arising from the negligence of his own servants, although he would not be liable for losses by thieves or by any taking by force ; or if the owner accompanies the goods to take care of them, and was himself guilty of negligence ; for it is a rule of law that a party cannot recover if his own negligence was as much the cause of the loss as that of the defendant. It appears that the defendant lets out carts, which ply at different stands ; and if, when the cart was let, the plaintiff agreed to go with the goods and watch them, it is manifest that he did not rely wholly on the defendant's servant. . . . You will therefore say whether the goods were delivered to the plaintiff as a common carrier ; or whether the cir- cumstances do not show that the goods were put into the cart under a modified contract that the plciintiff should go with them and take care of them. If you think they were delivered under such modified contract, your verdict on the second issue" (which raised a traverse of the allegation AND CARRIERS WITHOUT HIRE, &C. 15 that the defendant was a common carrier) " ought to be for the defendant. The next question is, whether the goods were lost by the negligence of the defendant's servant. . . . If you think that there was no negligence in the defendant's servant ; or that the negligence of the plaintiff himself contributed to the loss ; you will find a verdict on the fourth issue for the defendant." But where a carrier for hire, who is not a common carrier, expressly warrants the safety of the goods which he conveys, his liability will be the same as that of a common carrier, even although there are circumstances in the case which tend to show that the bailor never intended to leave them entirely in the custody of the carrier. Thus, where the plaintiff employed the defendant, who kept a cart and horse, to carry goods, and the plaintiff also sent a servant to watch the goods, and the latter were damaged by rain during the journey; it was held that, as the defendant had said to the plaintiff at starting, " I will warrant the goods shall go safe," the defendant, although not a common carrier by trade, placed himself, by these words of particular warranty, in the situation of a common carrier. The presence of the plaintiff's servant was held to be immaterial, and to be like the case where a man takes his portmanteau with him in a stage-coach and keeps his eye on it, yet notwith- standing the carrier is liable for the loss (Z). Where the declaration in such a case alleges a promise on the part of the defendant to carry safely and securely, it is held that a breach is sufficiently proved when it is shown that there was a valuable consideration for the promise, and that loss occurred from a want of ordinary diligence {m). It is unnecessary to distinguish further, in this place, between special carriers for hire aiid common carriers. Whenever a doubt arises as to the class in which a bailee is to be placed, it is left as a question for the jury in). (I) Robinson v. Dunmore, 2 Bos. (m) Ross v. Hill, 2 C. B. 877. & P. 416. (m) See Brind v. Dale, supra. ( 16 ) CHAPTER III. WHO ARE COMMON CARRIERS — CARRIERS OF PASSENGERS. It is stated in an old case, that " any man undertaking for hire to carry the goods of all persons indifferently is a common carrier" (a). In Bacon's Abridgment (Carriers A.) it is said : — " All persons carrying goods for hire, as masters and owners of ships, lightermen, stage-coachmen, &c., come imder the denomination of common carriers, and are chargeable on the general custom of the realm for their faults and misdemeanors." So a carrier of messages, as an electric telegraph com- pany, may be a common carrier (b). But the Postmaster- General, under 12 Car. 2, c. 35, cannot be sued as a common carrier, and is not liable in his official character for the larceny, loss or miscarriage of a letter or its con- tents; although either he or any of his subordinate agents- will be liable for such a loss if it be caused by his actual neghgence (c). In Story on Bailments, s. 495, it is laid down : — " To bring a person within the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally ; and he must hold himself out as ready to engage in the trans- portation of goods for hire as a business, and not as a casual occupation pro hac vice. A common carrier has therefore been defined to be one who undertakes, for hire (a) Gisbourn v. Hurst, 1 Salk. 26, C. P. 219. (c) Lane v. Cotton, 1 Ld. Raym. (ft) M'Andrew v. Electric Tele- 6i6; Whitfield v. Lord Despencer, gr..ph Company, 17 C. B. 3 ; 25 L. J. 2 Cowp. 754. WHO ARE COMMON CARRIERS. 17 or reward, to transport tlie goods of such as choose to employ him from place to place. It is said by another eminent American authority : — " Common c^'riers undertake generally, for all persons indifferently, to convey goods and deliver them at a place appointed for hire, and with or without special agreement as to price. They consist of two distinct classes of men, viz., inland carriers by land or water, and carriers by sea {d)r None of these definitions are quite exhaustive or unex- ceptionable. That of Mr. Justice Story approaches most nearly to completeness, but is, perhaps, wanting in dis- tinctness. The element which distinguishes a contract of carriage, as a common carrier, from a special contract of carriage for hire, lies in the circumstance that the common carrier exercises his trust as an incident of an ordinary and regidar profession. Therefore, the law presumes that he is a person necessarily of greater experience in his calling than a man who assumes it temporarily, and perhaps for a single occasion only. Accordingly, as it presumes greater skill in a professional carrier, so it expects from him greater security against loss or damage; and it also imposes on him a greater liability than belongs to a special and occa- sional carrier for hire, because the common carriers of former times were frequently the confederates of thieves ; and because the nature of the profession is especially favour- able to collusion with such characters (e). Therefore, from remote times, the common law drew a fundamental distinction, for loss or damage of the goods carried, be- tw^een the liabilities of a common carrier and those of a special carrier for hire. It made the former an insurer against all accidents and damage, except such as occur by the act of God or the king's enemies (/) ; but it has left the special carrier liable only for culpable negligence. {d) 2 Kent's Coram. 597. wick, 4 Bing. 218. (e) Holt, C. J., in Coggs v. Ber- (/) Forward v. Pittard, 1 T. R. nard, supra, p. 4 ; Brooke v. Pick- 27. C 18 WHO ARE COMMON CARRIERS. Accordingly, a carrier, as soon as he is brought witliin the definition of a common carriei', becomes instantly an in- surer of the goods intrusted to him, unless he have hmited his liabilitv by a special contract with the bailor {/)• Since, therefore, this extraordinary liability of insurance is imposed, for the above reasons, on a common carrier, it is clear that the regular pursuit and practice of his profes- sion form distinguishing elements in a definition of his character. It should also be understood that although, in this treatise, the subject is confined to inland " common carriers," yet this phrase does not imply the terminus of a common carriers transit. That may be bounded only by the limits of the earth; and every owner of a merchant- vessel who conveys exports regularly from a port in one hemisphere to a port in another hemisphere, is as much a common carrier as the daily carrier between two countrj'^ towns. But there must be regularity and 'permanency in the occupation ; and when the existence of these elements is questionable, it must be left as a fact for a jury to deter- mine ; and, according to their finding, the bailee will have the unlimited liabilities of a common carrier, or the com- parative immunities of a special carrier for hire(5r). Thus, in Ingate r. Christie (A), the declaration charged the defendant with an agreement to carry a hundred cases of figs, and a loss by the neglience of the defendant's servants. The defendant does not appear to have been charged as a common carrier ; but on a question whether the goods were delivered to him as such, or merely as a special carrier for hire, Alderson, B., held, that there was sufficient prima facie evidence that the goods were deli- vered to him as a common carrier, in the fact that the defendant had " a counting-house with his name and the word 'lighterman' on the door-post of it; and that he carried goods in his lighters from the wharves to the ships (/) Gibbon v. Paynton, 4 Burr. Morville, 2 E. & B. 750 ; 21 L. J. 2299. 319, Q. B. {g) Great Northern Railway v. (Ji) 3 C. & K. CI. WHO AEE COMMON CARRIERS. 19 for anybody who employed him." His lordship also said : " Everybody who undertakes to carry for anyone who asks him is a common carrier. The criterion is, whether he carries for particular persons only, or whether he carries for every one. If a man holds himself out to do it for every one who asks him, he is a common carrier; but if he does not do it for every one, but carries for you and me only, that is a matter of special contract. Here we have a person with a counting-house and ' lighterman ' painted on it ; and he offers to carry for every one." It may be stated generally that : — A common carrier is one who professes, as his public and regular occupation, to convey goods for hire from a certain place within the realm to another certain place, either within or without the realm ; and who, in the ab- sence of an express contract of limited liability, impliedly warrants and insures their safe conveyance and delivery to the consignee, unless prevented by the act of God or the Queen's enemies. In Benett v. The Peninsular and Oriental Steamboat Company (i), the declaration was against the defendants as common carriers for refusing to convey the plaintiff in a regular packet boat, belonging to the defendants, and duly advertised to convey passengers, on fixed terms, from Southampton to Gibraltar. The plea denied that the de- fendants were common carriers; and it was left to the jury to say whether they were so ; and it was found that they were. On a rule for a new trial, it was contended that extra-territorial carriers were not common carriers ; but it was held that they are so within the description of Story, J., as stated above ; and his definition was cited with appro- bation by Wilde, C. J., to show that a carrier, from a place within the realm to a place beyond the realm, may well be a common carrier. This doctrine was settled clearly in Crouch V, The London and North Western Railway Com- (») 6 C. B. 775 ; 18 L. J. 85, C. P. c2 20 WHO ARE COMMON CARRIERS. pany (k). There the declaration was against the defend- ants, as common carriers, for refusing to carry the plaintiff's goods from London to Glasgow. One of the pleas tra- versed the averment that the defendants were common carriers from London to Glasgow ; and it appeared that the railway belonging to the defendants ended at Preston and Rugby ; but that the defendants, by an arrangement with the ulterior railways, had been accustomed to book and receive, and carry goods beyond the limits of their own line, and over those of the ulterior railways to Glasgow ; and to receive the price of the carriage for the whole dis- tance. The defendants had also in the course of their business advertised and held themselves out to the public as carriers of goods through from London to Glasgow, at certain rates laid down in their published tables. These facts were held to constitute the defendants common carriers for the whole distance. Jervis, C. J., said : " It is not denied now, although the authorities are not numerous, that if a person holds himself out as a common carrier from London to Oxford, both termini being within the realm, he is bound to carry, within reasonable limits, all goods that may be tendered to him to be carried from London to Oxford. The only question on this part of the case is, whether that rule applies where one of the termini is a place out of Eng- land : and I think it does. It was admitted during the argument, and could not be denied, that if the defendants had accepted the goods in London, the common law would have engrafted on their contract an obligation to carry them to Glasgow Then, if it is admitted that when once they have held themselves out as common car- riers, there is engrafted on their acceptance of the goods the common law liability to carry, even if they are to carry beyond the realm ; it would seem also that they are sub- ject to the other part of the common law liability, namely, to accept within reasonable limits all goods that may be ten- {k) 14 C. B. 255 ; 23 L. J. 73, C. P. CARRIERS OF PASSENGERS. 21 dered to them to carry. If, therefore, being carriers within the realm, they are bound to take the goods offered to them to be carried within the realm ; it follows that if they profess to be carriers beyond the realm, being themselves at the time they so profess within the realm, they are bound to accept and to carry goods beyond the realm upon the terms on which they profess to contract." Carriers of Passengers, A carrier of passengers, although he may be in popular language a common carrier, is not strictly such ; for he does not insure nor warrant their safety. He contracts only, like an ordinary bailee for hire, to use reasonable skill and prudence in carrying ; and he is liable only for actual, or culpable, negligence. " There is a wide distinction between contracts for the conveyance of passengers, and those for the conveyance of goods. In the latter case the parties are liable at all events, except the goods are destroyed or damaged by the act of God or the king's enemies; whilst in the former they are only responsible to their passengers in cases of express negligence (Z)." Accordingly, when a passenger sues for damage which he has suffered from the defendant in his capacity of car- rier, it is not enough to show that the defendant is a public carrier, but it must also appear that the plaintiff suffered the damage through the actual negligence or default of the defendant. Where the action {m) was for injuries sustained by the plaintiff, owing to the breaking down of a bridge as the train passed over it, Williams, J. told the jury that the question was, whether the bridge was constructed and maintained with sufficient care and skill, and of reasonably proper strength, with regard to the purposes for which it was made ; and that if they should think not, and that {I) Parke, J., Crofts v. Water- . (m) Grote v. Chester and Holy- house, 11 Moore, 138 ; cf. Lovett t). head Railway Company, 2 Exch. Hobbs, 2 Show. 428. 251. 22 WHO ARE COMMON CARRIERS. tlie accident was attributable to any such deficiency, the plaintirt" would be entitled to recover. It appeared that an eminent engineer had constructed the works. The court upheld the direction of the learned judge, on his statement that he had also directed the attention of the jury to the proposition that " if a party, in the same situation as that in which the defendants are, employ a person who is fully competent to the work, and the best method is adopted, and the best materials are used, such party is not liable for the accident ; although it could not be contended that they were not responsible for the accident merely on the ground that they employed a competent person to con- struct the bridge." It must therefore be held to be clear law, on the autho- rity of all the cases, that a public carrier of passengers is not a common carrier to the extent of insuring their safety; that his common law contract obliges him to use only rea- sonable diligence in conveying such passengers ; and that he is not liable for damage to the passenger during the transit, unless the jury be of opinion that the circumstances of the case call for a verdict of negligence against the carrier. In Benett v. The Peninsular Steamboat Company (w) one principal point for the defendants was, that the decla- ration erroneously described them as common carriers ; and it was contended, for the defendants, that the common law customary liability of carriers did not extend to carriers of passengers. The court held the description sufficient, and that the defendants were common carriers within the defi- nition of Mr. Justice Story (supra, p. 16). Maule, J. said, " One of the points made by the Attorney-General is, that the liability of common carriers of goods and of common carriers of passengers is different. The allegation in this declaration can mean nothing else but that the defendants were common carriers of passengers in the same sense as Mr. Justice Story defines common carriers of goods. I (n) 6 C. B. 775; 18 L. J. 85, C. P. ; supra, p. 19. CARRIERS OF PASSENGERS. 23 can easily conceive the law with regard to the liability of carriers being repealed or altered, and yet parties might still continue to be common carriers, and an issue on that fact would be proved by the same evidence as was given in this case. Suppose the case of a common carrier between two places in New South Wales, and that the law was different there from the law of England, the plaintiff on an issue denying that the defendants were common carriers, would be entitled to succeed on evidence like this." It will be observed that the argument in this case turned on a purely technical point, and that the only question was, whether the description of the defendants in the declaration was a sufRcient statement of their duty to carry the plaintiff. The extent of their liability to carry the plaintiff safely and securely was not under considera- tion ; and therefore the case does not affect the doctrine that a carrier of passengers, as such, is not an insurer. The court seems to have been indisposed to enter into a discussion or definition of the precise legal meaning of the term ^^ common carrier ;'' and to have treated the distinc- tion between a carrier and a common carrier as little more than verbal. The case is also remarkable as an indication of a tendency in the courts to strike from the established legal signification of the term " common carrier," the ele- ment which is conceived to be its prominent and essential characteristic, viz. the contract of insurance. On this point the language of Maule, J. in a late case deserves attention. His lordship says, " I deny that a man who is not an insurer of goods is therefore not a common carrier. A common carrier, who makes no stipulation and gives no notice with respect to the insurance of goods, is no doubt liable as an insurer of the goods ; but a common carrier who by notice limits his liability, and says, ' I will not contract as an insurer, or I will only contract to such and such an extent, or to the extent of such a value,' still re- mains in all other respects a common carrier ; and even in 24 WHO ARE COMMON CARRIERS. that respect he is a common carrier ; because, although the incident of being an insurer does not apply to him, that is simply because it is specially provided for. In every day's experience that is so (o)." It may be submitted, with great deference to a most eminent judge, that this language is open to controversy. The cases have established certain conditions, which con- stitute every man who fulfils them, eo instanti, a common carrier. As soon as they are fulfilled the common law intervenes, and declares a contract of insurance to be implied in their fulfilment. This contract is not acci- dental to, but results necessarily from, the completion of the requisite conditions ; and the established common law definition of a common carrier ceases to cohere and to exist, when deprived of its vital and essential prin- ciple—the contract of insurance. Such a common carrier, it is true, can limit his liability by an express contract with his consignor ; but it may be submitted, that by so doing he not only ceases pro tanto to be a common carrier, but becomes converted at once into an ordinary special carrier for hire. It is important that law words should retain their established usage ; and it may be sug- gested that great confusion and great misunderstanding would arise, if it were to be assumed that a common carrier can remain such after having got rid of the one essential liability, as an insurer, which distinguishes him from a special carrier for hire. In cases of accident to passengers, where the defendant is not charged as a common carrier, the fact of the accident is prima facie evidence of negligence, so as to render him liable ( p). Bui this presumption of law is entirely rebutted by evidence that the accident was inevitable, or that it arose from the act of a stranarer who was not the servant (o) Crouch V. London and North ton Railway Company, 5 Q. B. 751 ; Western Railway, 14 C. B. 255; 23 Skinner v. London and Brighton L. J. 73, C. P. Railway, 5 Exch. 788. (p) Carpue d. London and Brigh- CARRIERS OF PASSENGERS. 25 of the defendants {q). In such cases it is the practice of pleaders to charge the carrier as an ordinary special carrier for hire ; and to aver, as the duty of the carrier, an obli- gation to use " due and proper care and skill in and about the carrying and conveying of the plaintiff" (r) ; and, as a breach, the want of such due or proper care and skill, as the cause of the accident. This was done in Skinner v. London and Brighton Railway. There the plaintiff was in an excursion train belonging to the defendants, and was injured by a collision with another train on the line. It was argued for the defendants that as the plaintiff com- plained of negligence, he ought to have been required to prove it. But Pollock, C. B., said : — " Surely the fact of a collision between two trains belonging to the same com- pany \B prima facie evidence of negligence on their part;" and Alderson, B., said : — " This is not the case of a collision between two vehicles belonging to different persons, where no negligence can be inferred against either party, in the absence of evidence, as to which of them is to blame. But here all the trains belong to the same company ; and whether the accident arose from the trains running at too short intervals, or from their improper management by the persons in charge of them, or from the servants at the station neglecting to stop the last train in time, the com- pany are equally liable ; and it is not necessary for the plaintiff to trace specifically in what the negligence con- sists ; and if the accident arose from some inevitable fatality, it is for the defendants to show it (s)." Wherever there is a duty to carry passengers, the law implies a duty to carry them safely and securely. In Collett V. London and North -Western Railway (0, the defendants were under a statutory obligation to carry the Postmaster-General's mail-bags, and the officers in charge of them. The plaintiff, as one of such officers in the train, (7) Latch V. Rumner Railway (.s) Cf. Cornman t). Eastern Coun- Company, 27 L. J. 155, Exch, ties Railway, 29 L. J. 94, Excli, (r) Harris v. Costar, 1 C, & P. (t) IG Q. B, 984; 20 L, J, 411, 636, Q. B. 26 WHO ARE COMMON CARRIERS. was injured by a collision with another train ; and it was contended for the defendants that the contract to carry- safely and securely, if it existed, was with the Postmaster- General, and not with the plaintiff. But Lord Campbell, C. J., said: — "The allegation in the declaration, that it was the duty of the defendants 'to use due and proper care and skill in and about the carrying and conveying of the plaintiff,' is made out in point of law. That duty does not arise from any contract with the plaintiff, but from the obligation imposed by the legislature upon the company to carry the mail-bags, and the officers of the Post Office in charge of the letters ; and if it be the duty of the com- pany to carry the plaintiff at all, it must be their duty, in doing so, to use reasonable care and skill. It cannot be said that it is enough for the company to bring the dead body to the end of the journey." The proprietor of a coach is liable for all accidents to passengers which may arise from his negligence during any part of the transit, and until the passengers are safely set down (w). If he is going over dangerous ground he ought to tell them, so as to give them the opportunity of alighting ; and if this information be not given when it ought to have been given, the proprietor is liable for the results of an accident (x). So if danger of any kind occur on the journey, the owner is liable if the driver do not take the safest course ; or unless he use at least a reasonable discretion in endeavouring to take it (y). And if the owner provide an unsafe vehicle, or commit any other negligence which renders it a prudent or reasonable course for a passenger to incur risk in order to escape the consequences of the owner's neghgence, the owner is liable for the injury which the passenger may sustain in encountering such risk. Thus, (u) Aston V. Heaven, 2 Esp. 533 ; R. 518. Latch i). Rumner Railway Company, (y) Jackson v. Tollett, 2 Stark. 27 L. J. 155, Exch. 37 ; Curtis v. Drinkvvater, 2 B. & (x) Dudley v. Smith, 1 Camp. Ad. U9. 167 ; Seymour v. Greenwood, 9 W. CARRIERS OF PASSENGERS. 27 where a coachman, having a restive leader and a defective rein, was obliged to drive too near the side of the road ; and the plaintiff was either jerked off, or jumped off in the concussion : Lord Ellenborough held that, even in the latter event, the plaintiff was entitled to recover damages for breaking his leg, if he had a reasonable apprehension of danger ; but not if he acted from a rash apprehension of danger which did not exist (2^). So when the damage arises from the restiveness of the horse, it is a question for the jury whether it amounts to vice, and whether the defendant M^as negligent in permitting the horse to be used (a). In all these cases the negligence of the driver is the negligence of the owner of the vehicle, if the relationship of master and servant exist {b). Where the plaintiff was driving his waggon on his proper side, about four feet from the kerbstone; and the defendant's servant, seeing the defendant put his horse to the trot to pass the plaintiff, set spurs to his horse, which in passing the plaintiff kicked out his eye; it was held that there was evidence to support a verdict against the defendant (c). Where there has been no negligence on the part of the owner or the driver, there is no responsibility in either. Inevitable accident is a sufficient answer to all claims for damages in such cases ^c?); for a carrier of passengers undertakes only that, as far as human foresight can go, he will provide for their safe conveyance ; but he does not warrant their safety (e). A carrier also promises impliedly, that his vehicle is equal to the journey which it under- takes ; and it is his duty to examine it before the com- mencement of the journey, and whenever there is any reason (2) Jones V. Boyce, 1 Stark. 493. (c) North t;. Smith, cf. Times, (a) Harris v. Costa, 1 C. & P. May 27, 1861. 636. (d) Aston v. Heaven, 2 Esp. 533. (b) White V. Boulton, Peake, N. P. (e) Christie v. Griggs, 2 Camp. 80, 113; Brucher v. Fremont, 6 T. II. per Mansfield, C.J. ; Mayor ». Hum- 659, and infra. phries, 1 C. & P. 252, n. 28 WHO ARE COMMON CARRIERS. to suspect a defect (/). His duty and liability are the same, even when he carries only a statutory number of pas- sengers ig), " If a person takes a place in a stage coach and pays at the time only a deposit, a half the fare for example, and is not at the inn ready to take his place when the coach is setting off, the proprietor of the coach is at liberty to fill up his place with another passenger ; but if at the time of taking his place he pays the whole of his fare, in such case the carrier cannot dispose of his place ; but the pas- senger may take it at any stage of the journey he thinks fit" (A). So if several persons take places, saying that they wish to travel together, the carrier has no right to separate them (i). And a postmaster is bound to proceed on his journey as soon as the passenger requires him to do so, if the latter have been permitted to put his luggage in the carriage and to have entered it himself {j). A common carrier of passengers, like a common carrier of goods, is bound to receive and carry all alike, without distinction of persons, provided that his fare be duly paid or tendered on demand. In this respect his liability is commensurate with that of an innkeeper; and as the latter is bound to receive and accommodate all decent and orderly people to the extent of his capability of reception ; so a common carrier of passengers is under the same obligation. But he is not bound, nor has he any right to overcrowd his vehicle ; and there seems to be no doubt, that, in such a case, a previous passenger may vacate his seat and sue the carrier on a breach of contract (A). A common carrier may refuse to carry, and, if necessary, may expel a disorderly passenger ; and, according to the American law, " he is not bound to admit passengers who (/) Bremner v. Williams, 1 C. & (i) Per Abbott, C. J., Long v. P. 414 ; Sharp v. Grey, 9 Bing. 457. Home, 1 C. & P. 612. {g) Israel v. Clark, 4 Esp. 259. {j) Mander v. Cooper, 4 Esp. 260. {h) Ker v. Mountain, 1 Esp. 26, {k) Long v. Home, 1 C. & P. 610. per Lord Kenyon, C. J. CARRIERS OF PASSENGERS. 29 refuse to obey reasonable regulations ; or who are guilty of gross and vulgar habits of conduct ; or who make disturb- ances; or whose characters are doubtful, or dissolute or suspicious ; and a fortiori persons whose characters are unequivocally bad"(0- There can be little doubt that the law of England is the same (//«)• It appears also that a carrier of passengers is not bound to admit a person of notoriously bad or disorderly character; but if he have admitted him, and the passenger has paid his fare, he cannot be turned out, nor otherwise ill-treated or insulted, as long as he behaves with proper decency (w). The time and place of starting; the duration of the journey; and the terminus at which the passenger is to be set down, will all be matters of special contract, or of a contract to be implied from the evidence and circum- stances of each case. The time tables of a railway com- pany are evidence in such cases (o). The rule of the road is that the carrier and driver of vehicles shall keep to the left; and to the right of a fore- most vehicle in passing it. But a deviation from the rule of the road is at most only prima facie evidence of negli- gence ; and it has been even said, that it is not even prima facie evidence (/>). At times it is the duty of a carrier to disregard the rule of the road ; as if he see a horse coming along furiously on the wrong sideC^-): and when there is no other carriage or animal in his way he may clearly drive in any part of the road which he may prefer (r). But if the journey be at night, there will be at Xe^si prima facie evidence of negligence, if an accident occur while the car- rier is on the wrong side of the road (s). But generally, {I) Angell, sect 525 ; Jencks v. (o) Denton v. Great Northern Coleman, 2 Sumn. (Cir. Co.) R. 221, Railway, 25 L. J. 129, Q. B. Story, J. ip) Wayde v. Carr, 2 Dowl. & Ry. (m) Cf. Rex V. Ivens, 7 C & P. 255. 213; Hawthorn v. Hammond, 1 C. {q) Turley v. Thomas, 8 C. & P. & K. 404. 103. (n) Coppin V. Braithwaite, 8 Jur. (r) Aston v. Heaven, 2 Esp. 533. 875 ; Angell, sect. 532. (.?) Mayhew v. Boyce, 1 Stark. 423. 30 WHO ARE COMMON CARRIERS. the question of negligence will depend on all the circum- stances of such cases. A driver of a vehicle must take reasonable care to avoid hurting people who walk in the road ; " for a man has a rii^ht to walk in the road if he pleases. It is a way for foot passengers as well as for carriages. But he had better not, especially at night, when carriages are passing along" (t). Foot passengers, in crossing a highway, must also take due care to avoid vehicles (u). The conveyance of passengers by public stage carriages has been regulated by the 2 & 3 Will. 4, c. ] 20, and the 2 k 3 Vict. c. 66, as to the duties which may be levied on them by the Commissioners of Stamps. In the former statute (s. 5) it is enacted, that " every carriage used or employed for the purpose of conveying passengers for hire to or from any place in Great Britain, and which, when passing along any highway or other road, shall travel at the rate of three miles or more in the hour, shall, without regard to the form or construction thereof, be deemed and taken to be a stage carriage within the meaning of this act, provided the passengers, or any one or more of them, thereby conveyed, shall be charged or shall pay separate and distinct farfes, or a separate and distinct fare ; or shall be charged or pay at the rate of separate and distinct fares for their respective places or seats, or his place or seat therein, or conveyance thereby; and in all proceed- ings at law or otherwise it shall be sufficient to describe any carriage used or employed as aforesaid by the term ' stage carriage,' without further or otherwise describing the same : provided that the said term ' stage carriage' shall not be deemed to extend to or include any carriage used or employed as aforesaid wholly upon any railway, nor to any carriage drawn or impelled by the power of (0 Per Lord Denman, Boss v. (u) Cotton «. Wood, 29 L. J. 333, Lytton, 8 C. & P. 407 ; cf. Cot- C. P. ; Cornman v. Eastern Counties terill V. Starkey, 8 C. & P. 691 ; Railway, 29 L. J. 94, Exch. Wakeman «. Robinson, 1 Bing. 213. CARRIERS OF PASSENGERS. 31 steam, or otherwise than by animal power." Every person keeping any such carriage must have a Hcence from two Commissioners of Stamps, and must have a numbered plate fixed in the carriage, and other particulars painted on it according to the requirements of the act (s. 6). Such plates are to be changed when defaced, or no longer dis- tinctly visible (s. 24). The licences are to contain par- ticulars of the christian name, surname and place of abode of every proprietor or part proprietor of the carriage ; the name of the extreme place from which and to which such carriage shall be authorized by such licence to go or pass ; and the route or line of road by which such carriage shall travel to or from such extreme places; the distance in miles or fractions of miles between such extreme places ; the number of journeys; and the total number of miles upon which this duty shall be assessed ; the number of passen- gers which may be carried inside and outside, &c. (s. 11). The duties are settled by 2 & 3 Vict. c. 66. Any mis- description in the licence is a misdemeanor (s. 10); and the licence must be renewed yearly (s. 13). If any person keep or use a stage carriage without a licence, or without a proper plate, he incurs a penalty of twenty pounds (s. 27) ; and if any carriage, whether licensed as a stage carriage or not, ply for passengers without having a numbered plate, the driver, if he be not the owner, incurs a penalty of ten pounds (s. 30). A penalty of five pounds is incurred for every passenger who is taken beyond the licensed number (s. 34). Two children under seven reckon as one passen- ger (s. 35). Every stage carriage must have the name and surname of the owner of the carriage painted distinctly upon some conspicuous part of each side of the carriage, and the number of passengers which the licence authorizes the owner to carry (s. 36). The statute contains provisions also as to the disposition of outside passengers (ss. 37 — 44) ; imposes a penalty of five pounds for various acts of negligence and misconduct on the part of the driver or guard (ss. 47, 48) ; and many other minor regulations, for 32 WHO ARE COMMON CARRIERS. which the act will be best consulted. The law relating to the management of hackney carriages in London is regu- lated by the 1 & 2 Will. 4, c, 22; 6 & 7 Vict. c. 86, and by the Metropolitan Hackney Carriages Acts (16 & 17 Vict. cc. 33 and 127). In other principal towns, such as Plymouth, commissioners are authorized under local acts to grant licences to owners of hackney carriages ; to regu- late fares ; and to exercise a general superintendence over the proprietors and drivers of such carriages. (See also 10 & 11 Vict. c. 89, ss. 21—23, 37—68.) ( 33 ) CHAPTER IV. ON THE COMMON LAW DUTY OF COMMON CARRIERS TO CONVEY AND DELIVER GOODS SAFELY AND SECURELY. A COMMON carrier is bound to carry to any point, within his transit or circuit, and by his ordinary road (a), the goods of any person who tenders him a reasonable remu- neration for his labour (b). He is answerable, in the nature of an insurer, for the safe conveyance and delivery of the goods ; and this liability begins as soon as he re- ceives them into his custody, and ends only when he has delivered them at the specified place of consignment, or to the authorized consignee (c). 1. A Common Carrier is bound to receive Goods which are tendered to him to be carried for Hire. This duty of a common carrier is commensurate with that of an innkeeper. If a man take upon him a public employment, he is bound to serve the public as far as the employment extends ; and, for refusal, an action lies (it has been said) against a farrier for refusing to shoe a horse; against an innkeeper for refusing, to receive and entertain a guest when he has room ; and against a carrier for refusing to carry goods, his waggon not being full. So, an action will lie against a sheriff for refusing to execute a process ; and, it is said, against the Postmaster-General, for refusing to receive a letter {d). (a) Davies v. Garrett, 7 Bing, (c) Dale v. Hall, 1 Wils. 281 j 716. and see 1 Smith's Lead. Cas. 101 b. (b) Munster v. Soutli-Eastern (d) Lane r. Cotton, 1 Lord Raym. Railway, 4 C. B., N. S. 676; 27 65 L L. J. 308, C. P. 34 THE COMMON LAW DUTY " If a person chooses to profess to be a common carrier, the law creates a duty to receive things brought for carriage; and he may be Hable ex delicto for refusing to receive. But this duty is regulated according to his will in many respects. He may choose the kind of conveyance, the times for transit, the mode of delivery, the articles that he will prefer to carry, what price he will have, when it shall be paid ; and the duty to receive is always limited by the convenience to carry" (e). Accordingly, where a railway had elected to carry generally as common carriers, it was held that this election did not compel them to carry goods, such as coals, which they had never professed to carry. Parke, B., said : — " The question is, whether the defendants are bound to carry coals from Melton Mowbray to Oakham. If they are merely in the situation of carriers, at common law they are not so bound ; for they never professed to carry coals from or to those places. At common law a carrier is not bound to carry for every person tendering goods of any description ; but his obligation is to carry according to his public profession." His Lordship then referred to Lane v. Cotton (/), and added: "In the case of an innkeeper, there is no question that the action will lie. So also in the case of a carrier ; and that arises from the public pro- fession which he has made. A person may profess to carry a particular description of goods only ; for instance, cattle or dry goods, in which case he could not be com- pelled to carry any other kind of goods ; or he may limit his obligation to carrying from one place to another, as from Manchester to London; and then he would not be bound to carry to or from the intermediate places. Still, until he retracts, every individual (provided he tender the money at the time and there is room for the conveyance) has a right to call upon him to receive and carry goods (e) Per Erie, J., M'Manus v. Lan- Sc. Cam. ; cf. Oxlade v. North-East- cashire and Yorkshire Railway, 4 ern Railway, 9 W. R. 2/2. H. & N. 327; 28 L. J. 353, Excli., (/) Supra, p. 33. OF COMMON CARRIERS, ETC. 35 according to his public profession. Now, if the defendants stand in the situation of carriers at common law, they are not liable, because it does not appear in evidence that there ever had been a public profession by them that they would carry coals from Melton Mowbray to Oakham ; and, further, it is found as a fact that they had not the con- venience for so carrying" (/). If the carrier be sued for refusing to carry such goods as he has professed to carry, it should be alleged and proved that the defendant had convenience to carry, and that the goods had been formally tendered, together with the hire, and refused by the defendant (^). The carrier is entitled to have his hire paid him before he takes the goods into his custody (/*). In an action, however, for refusing to carry, it is enough to aver readiness and willingness to pay the hire, without averring an actual tender (i). But the carrier is entitled to insist on the full price of carriage being paid beforehand ; and he may, if such price be not paid, refuse to carry on the terms imposed by the common law, and insist upon his own (A). If the carrier demand an unreasonable price, as a con- dition precedent to his acceptance of the goods for carriage, the consignor may tender him what he conceives to be a reasonable amount; and the carrier will be liable to an action if he still refuse to carry, and if the amount tendered be a reasonable remuneration. Thus, where a railway acted as common carriers under an act of parliament, which authorized them to demand a reasonable sum for the conveyance of goods ; and the plaintiffs tendered goods for conveyance, with a sum which the court held, on the (/) Johnson v. Midland Railway van, 4 B. & Aid. 28. Company, 4 Exch. 367. («') Pickford v. Grand Junction (g) Jackson v. Rogers, 2 Show. Railway Company, 8 M. & W. 373 ; 332 J Munstert).South-Eastern Rail- Wyld v. Pickford, 8 M. & W. 443. way, 27 L. J. 308, C. P. (k) Per Parke, B., in Wyld v. {h) Best, C. J., Batson v. Dono- Pickford. d2 36 THE COMMON LAW DUTY special facts of the case, to be reasonable, but which the defendants refused as inadequate : the latter were held to be clearly liable for a breach of an implied duty (/). 2. A Common Carrier will be liable as an insurer for all loss or damage ivhick goods in his custody suffer during the transit. "To give due security to property, the law has added to that responsibility of a carrier, which immediately arises out of his contract to carry for a reward, namely, that of taking all reasonable care of it, the responsibility of an insurer. " From his liability as an insurer, the carrier is only to be relieved by two things, both so well known to the country when they happen, that no person would be so rash as to attempt to prove that they had happened, when they had not ; namely, the act of God and the king's enemies" {m). A common carrier can avoid or limit his liability as an insurer, only by virtue of an express contract between him and the owner, or by the statute law. The courts will require distinct evidence of such an express contract of limitation having been engrafted on the contract of unlimited liability, which the law implies primarily as soon as the carrier is proved to be a common carrier, and not a mere special carrier for hire {n). This liability, which at common law was unlimited, has also been restricted in certain cases by the Carriers Act (11 Geo. 4 &: 1 Will. 4, c. 68), and in the case of railways by the Railway and Canal Traffic Act, 1854 (17 & 18 Vict, c. 31); but it still exists in all cases which do not fall within the provisions of these acts. But if the loss can (0 Pickford v. Grand Junction L. J. 99, Exch. Railway Company, 10 M. & W. 399. (w) Shaw v. York and Midland [m) Best, C. J., in Riley D. Home, Railway, 18 Q. B. 347; Chippen- 5 Bing. 220 ; Oakley v. Portsmouth, dale v. Lancashire and Yorkshire &c. Company, 11 Exch. 618; 25 Railway, 15 Jur. 1106. OF COMMON CARRIERS, ETC. 37 be traced in any way to the fraud or negligence of the consignor, the carrier will be absolved. In Gibbon v. Paynton (o), the plaintiff had concealed lOOZ. in a bag of hay, and intrusted the bag to the de- fendant, a common carrier, to be conveyed to A. The plaintiff was aware that the defendant had published notices declaring that he would not be liable for the loss of money unless it were delivered to him as such ; but the plaintiff, notwithstanding, did not communicate the fact. The court held this concealment to be constructive fraud in the plaintiff, and that the defendant was therefore not liable for a loss during the transit. Lord Mansfield said, " If the owner of the goods has been guilty of a fraud upon the carrier, such fraud ought to excuse the carrier." This case would now be within the Carriers Act (11 Geo. 4 & 1 Will. 4, c. 68, s. 4), and the mere concealment of value would limit the carrier's liability, although the public notice alone would not limit (s. 4) ; but the principle of this case is still applicable where there is fraudulent concealment or negligence on the part of the consignor (j9). In Batson v. Donovan {q), the defendants had given notice that they would not be liable for parcels of value unless paid for and entered as such. The plaintiffs knew of this notice, but, notwithstanding, delivered a large parcel of bank-notes to the defendants, who were common carriers, without communicating the contents. The parcel arrived at the end of the transit, but was stolen before delivery, owing to the carelessness of the defendants' servant. Bayley, J., left it to the jury to say whether the plaintiff dealt fairly by the defendants in not apprising them of the value. This direction was held, by three judges to one, to be right. (o) 4 Burr. 2301. Eames, 3 B. & C. 601. \p) Cf. Bradley v. Waterhouse, 3 (7) 4 B. & Aid. 21. C. & P. 318, and note; Mayliew v. 38 THE COMMON L.1W DUTY On the first point Bayley, J., said : " A carrier is to a certain extent an insurer ; and concealment, if it varies the risk, discharges the underwriter. The value here does increase the risk ; that value is concealed ; it is concealed wrongfully ; then why is the defendant to be liable ?" And his Lordship cited, with approbation, the dictum of Mr. Justice Yates, in Gibbon v. Paynton, that "a carrier ought not to be answerable where he is deceived." So where the plaintiff, knowing that his goods were likely to be seized by rioters, induced a carrier to convey them ; it was held, that the latter would not be liable for the loss by seizure, if the danger had been concealed from the carrier, or if the owner of the goods could be considered to have acquiesced tacitly in the risk {r). The cases in which carriers have been held to be not liable on account of fraud in the consignor are chiefly before the Carriers Act; and they have been cases in which the consignor has been affected with notice from the carrier that the latter will not be liable for valuable goods. The 4th section of the Act expressly precludes carriers from the exercise of the uncertain right which they enjoyed before the statute, of limiting their liability by notice in cases which are not within the provisions of the Act ; but, although mere concealment of the value of goods will no longer amount to fraud in a consignor, whether affected with notice or not from the carrier, the common law right to impeach the transaction, on the ground of other circumstances which amount to fraud, remains as before the statute. 3. A Common Carrier must deliver his Consignment safely and securely. All common carriers are bound to deliver as well as to carry the goods consigned to them {s). In Golden v. Man- (r) Edwards v. Sherratt, 1 East, Golden v. Manning, 2 W. Bl. PKJ; 601'. SWils. 429. (s) Owen, cited by Gould, J., in OF COMMON CARRIERS, ETC. 39 ning, the defendant had undertaken to carry goods from the plaintiff to A. The package had been properly directed by the plaintiff, but the address had become effaced during the transit; and the package was therefore detained, on its arrival at the defendant's terminus, in his warehouse, where it remained for a year, at the end of which time the plaintiff discovered accidentally that it had not been delivered to the consignee. It also appeared that the defendants, if they had used moderate diligence, could have discovered the address of the consignee. The plain- tiff was held entitled to damages for injury to the goods during the negligent detention ; and it was said by the court that " there can be no doubt that carriers are obliged to send notice to persons to whom goods are directed, of the arrival of those goods within a reasonable time, and must take special care that the goods are delivered to the right person." But this liability and duty, as will be seen subsequently, may be infinitely modified by the terms of an express and special contract (0- In the absence of such a special contract, the liability of the carrier for loss or damage up to the time of delivery will be the same as that which he incurs during any other part of the transit. A common carrier's duty to deliver safely, arising, as it does, out of his duty to convey safely, has become latterly, in the majority of cases, a question of fact depending on the special circumstances of the original contract between him and his consignor, or consignee. His absolute com- mon law liability as an insurer is indisputable ; but the indulgence, and perhaps it may be said the laxity and indifference, of the legislature has allowed a system of limited liability to spring up, which has almost inextricably confounded the duties and rights of different classes of carriers, and practically converted his relation to the public into a species of despotic monopoly, in which the carrier (/) Shaw V. York and North Mid- Railway, 15 Jur. 1106; and infra, land Railway, 13 Q. B. 347; Chip- Chapter VIII. pendale v. Lancashire and Yorkshire 40 THE COMMON LAW DUTY dictates, and the employer acquiesces in, the special terms on which alone the former will consent to act for the latter. A common carrier, as such, is still liable to an action for refusing to carry, in the ordinary course of his business, on any terms but those of unlimited liability (u) ; and it would be well if this fact were more generally known, and more frequently acted on by the public. But the growth of special contracts, which are forced upon the public by the carrier, is gradually frittering away the common law duties of the latter, and converting the former into a passive victim of extortion. In considering, therefore, the positive duties of a com- mon carrier during the course of his transit, and up to the moment of delivery, it is essential to ascertain whether his common law liabilities have been abolished or modified by express contract. This branch of the subject will be treated more minutely in a later part of this work ; but it may be desirable to notice here a few of the recent cases on the subject of a carrier's duty to deliver his consign- ment safely and securely. The Great Western Railway Company v. Goodman (v), was a case stated on appeal by the judge of a county court. The plaintiff, intending to travel by the railway to West Drayton, took her ticket at the Paddington terminus, and paid the usual fare. She then called one of the com- pany's porters, and, having told him that she was going by the next train to West Drayton, desired him to label her luggage for that place, viz. two small boxes and a trunk. The plaintiff proved that she saw all the articles labelled, but could not swear that they were labelled for West Drayton. She then left the luggage with the porter and entered the train. On arriving at West Drayton she received only the two small boxes ; and it was admitted by the defendants that the trunk had been stolen after its delivery to the porter. (m) Munster v. South - Eastern C. P. Railway, sup. p. 33; 27 L.J. 308, («) 12C.B.313; 21 L. J.197,C.P. OF COMMON CARRIERS, ETC. 41 By a bye-law of the company, which under their spe- cial act was to be binding on all parties, the company had announced that every passenger would be allowed to take a certain amount of luggage free of charge, but that the company would " not be responsible for the care of the same unless booked and paid for accordingly." The plaintiff's luggage was within the allowed limit, but had not been booked nor paid for as such. It appeared, also, that the company had made no arrangements for booking passengers' luggage ; that it was not usual for such to be booked ; and that a witness, who not long before had ap- plied to book and insure his luggage, had been told by one of the company's servants " to give it to the porters and they would take care of it." On these facts the defendants contended that they were not liable : first, because the trunk had never been deli- vered to them ; and secondly, because the bye-law absolved them. But the court held that there was a sufficiently clear case of prima facie liability made out against the railway, and sufficient evidence to warrant a verdict for the plaintiff. In this case tlie defendants were apparently sued as ordinary special carriers for hire. No point was made that they were common carriers and liable as insurers. But the special facts appear to have been treated as forming a special contract, to convey safely, and to deliver safely. The effect of the bye-law was regarded as neutralized by the conduct of the defendants, which showed constructively that they had not intended to enforce it ; and the nature of the contract was held to be simply a question of evi- dence. Still it must be understood that such a contract is not an absolute contract to deliver, but merely to use that ordinary care which is exacted from special carriers for hire. The implied, although not the expressed, ground of the verdict for the plaintiff, must be taken to have been the negligence of the defendants ; of which, in the absence of opposite evidence of due care on their parts, the proof of the loss was sufficient prima facie evidence {x). (x) Supra, p. 24. 42 THE COMMON LAW DUTY But in an earlier case, Richards v. London and Soutli Coast Company {y), the declaration was against the rail- way as common carriers ; and the case was, that the plaintiff's wife, as a passenger, had intrusted her luggage to a company's porter, who had placed her other luggage in the van, but put her dressing-case under her seat in the carriage. On arriving at the terminus, the company's servants had placed, as she thought, all her luggage in a hackney coach close to the platform ; but it appeared sub- sequently that the dressing-case was missing, and that it had not been placed in the hackney coach. The court supported a verdict for the plaintiff on the ground that, according to the course of the company's business, there was no complete delivery to the plaintiff's wife until the company's servant had placed the dressing-case in the hackney coach. On the general principle, Wilde, C. J., said : " The duty of common carriers is perfectly well understood ; they give a warranty safely and securely to convey and deliver. It is immaterial whether there be negligence or not ; the warranty is broken by nondelivery." But it must not be inferred from this case that even com- mon carriers will be liable in all cases for the nondeUvery of a passenger's luggage when the passenger voluntarily and deliberately assumes the custody of it. Such a doc- trine would be clearly opposed to every principle of com- mon justice and common sense ; and although it is not without authority, it can hardly be expected that it would be upheld in these days. It was said indeed in Robinson V. Dunraore (z), that it had been determined that *' if a man travel in a stage-coach and take his portmanteau with him, though he has his eye on the portmanteau, yet the carrier is not absolved from responsibiUty." But Richards v. The London and South-Western is by no means an autho- rity in support of this view, and the language of Wilde, C. J., is clearly opposed to it. There it is clear that the judg- ment of the court rested on the principle that there had (:'j) 7 C. B. 839 ; 18 L. J. 2.31, (z) 2 Bos. & P. 419. C. P. OF COMMON CARRIERS, ETC. 43 been a complete bailment to the company when the plaintiff's wife delivered the trunk to their servant; and that the act of placing it under the seat in the passengers' carriage, although apparently by her direction, and cer- tainly with her sanction, was, notwithstanding, not her act, but the act of the company's servant, who in doing it was conceding only a gratuitous privilege, which, as such, could have no effect in lessening the company's antecedent liability. Any other view of this case is manifestly unrea- sonable and untenable. Accordingly Wilde, C. J., said: " There is nothing more common than for persons to put part of their luggage into the same carriage with them, and that may be done under such circumstances as never to cast any responsibihty on the carriers, but that is to be proved. When this is done by the company's servants the company are not relieved from their liability as carriers in respect of it. So, a passenger taking a valuable article openly and notoriously into the same carriage in which he travels, will not save the company from responsibility. The case is quite different from that of goods which are about the person of a passenger, which are to be con- sidered entirely under his personal control and custody. In that case there is no delivery to or acceptance by the company. Acceptance by the company is the legal result of goods placed in their hands in the ordinary way in which they consent to receive them." Richards v. The London and South Coast Railway was approved and confirmed in Butcher v. The London and South Coast Railway (a). In this last case the plaintiff, on entering the railway carriage, had his portmanteau placed in the luggage-van, but kept with him, during the whole journey, a small hand-bag containing money and valuables worth 240/. When the train arrived at the ter- minus, the plaintiff got out on the platform with the bag in his hand. A company's servant then enquired of him whether he should get him a cab ; and on an affirmative («) 16C. B. 13; 24L. J. 137, C. P. 44 ■ THE COMMON LAW DUTY reply, took the bag, and stated subsequently that he had placed it on the foot-board of the cab which he had en- o-aoed ; but when the plaintiff (who had remained to take care of his portmanteau) got there, he found that the bag had disappeared, and the driver denied that it had ever been put on the cab. It also appeared to be the usual course for the company's servants to assist gratuitously in removing passengers' luggage from the trains to the autho- rized cabs in attendance, of which the plaintiff's cab was one. The jury found generally for the plaintiff; and the court held that there was evidence to support the verdict. It is to be observed, that, in this case, it was not left to the jury to say whether there had been originally a deli- very of the carpet bag by the plaintiff to the company ; but it was assumed that there had been. The only ques- tion, therefore, was whether the bailment had been deter- mined by a redelivery to the plaintiff. That question was decided, as in Richards v. The London and South Coast Company, by a reference to the company's usual course of dealing; and although j^^i'^i^' facie there was a complete redelivery to the plaintiff the instant that he stepped from the carriage on to the platform, because there the com- pany's contract to convey and deliver safely was actually performed ; yet the voluntary and self-imposed custom of the company to deliver the luggage of passengers, not merely on to the platform but also into the cabs, was held to affect the defendants with a supplementary liability, inseparably engrafted on the original contract to deliver safely and securely. It was held, therefore, that it was not discharged by the company's servant placing the bag in a vehicle, which virtually and at the time was under the care of another servant of the company ; nor, apparently, until all the luggage, and probably the passenger himself, were in the vehicle {b). Still it appears somewhat singular (b) Cf. Munster v. South-Eastern Exeter Railway, 27 L. J. 167, Q. B.; Railway, 4 C. B., N.S. 676 ; 27 L.J. Cooper ^'. London and South-Western 308, C. P. ; Blackmore r. Bristol and Railway, 27 L. J. 324, C. P. OF COMMON CARRIERS, ETC. 45 that a liability in the nature of an insurance should be fixed on the carrier after the performance of all which he originally contracted to do, and all that he was really bound to do ; and that a voluntary courtesy, after the virtual determination of the bailment, should involve a lia- bility without clear evidence of gross or culpable negli- gence. In this respect these cases are hardly reconcilable with Garside v. The Proprietors of the Trent and Mersey Navigation (c), which does not appear to have been noticed in the case, although they agree in principle perhaps with Hyde v. Trent Navigation (cZ) and White v. Humphery (e). It is also a little remarkable that no question was raised by the pleadings, nor in the course of the argument, as to the apparent exemption of the company from all liability under the 1st section of the Carriers Act. In an action against a carrier for the loss of goods it is sufficient evidence of nondelivery to show that the goods never reached the consignee (/"). In Griffiths v. Lee(^), to prove nondelivery, the con- signor stated that he gave the parcel in question to the carrier's servant, properly addressed to the consignee. The consignee's servant stated that he did not know of the delivery, and believed that the parcel could not have been delivered without his knowledge. Hullock, B., held this to be sufficient prima facie evidence of nondelivery. So, evidence that the weight or amount of goods delivered to the consignee is less than the weight or amount of goods delivered to the carrier, is sufficient prima facie evidence to charge the latter for the deficiency, or to call on him to show that it did not arise from his negligence (A). But when it is consistent with the evidence that the carrier may have delivered, the carrier will be exempt. Thus, (c) 4 T. R. 581 ; and supra, p. 10. 2 E. & B. 822. (d) 5 T. 11. 389; and infra, p. (/) Gilbart -w. Dale, 5 Ad. & El. 46. 543. (e) 11 Q. B. 43 ; and supra, p. (g) 1 C. & P. 110. 11; cf. Giles v. Taft' Vale Company, (//) Hawkes v. Smith, C. & M. 72. 46 THE COMMON LAW DUTY ill the Midland Railway v. Bromley (A), the company had undertaken to carry the plaintiff's portmanteau from Gloucester to Bristol, and to deliver it to the Bristol and Exeter Company, by whom it was to be carried to Torquay. There was evidence that the portmanteau had arrived at Bristol, and had been placed on a truck by one of the defendants' porters; and that the truck had been taken over to the Bristol and Exeter Station ; but there was no evidence to show what had become of it after it was placed on the truck, nor whether it was on the truck when the truck was brought to the Bristol and Exeter Station. At Torquay the portmanteau was missed. It was held, that, on this evidence, it was as reasonable to suppose that the portmanteau had been lost on the Bristol and Exeter line as on that of the defendants; and the plaintiff was nonsuited. 4. A Carrier must deliver his Consignment to tlie Consignee or his Agent ; or at an authorized place of delivery. In Hyde v. Trent and Mersey Navigation Company (i), the defendants were common carriers, who had undertaken to carry the plaintiff's goods from A. and deliver them to the plaintiff at B, The goods arrived at B. ; and, according to the usage of the trade, were placed for safe custody by the defendants in a warehouse belonging to C. ; there to remain until they could be carted to the plaintiff by D. The charges for the temporary warehousing, and also for the cartage, were included in the original charge for carriage ; but the plaintiff, at the time when he contracted with the defendants, knew that they received the charge for ware- housing and cartage only as agents for C. and D. respec- tively. The goods were placed in the warehouse by the defendants, and there burned accidentally. The court held, that as the charges for warehousing and cartage had been (/O 17 C. 13. 372; 25 L. J. 94, (i) 5 T. R. 389 ; supra, p. 45. c. r. OF COMMON CARRIERS, ETC. 47 included and apparently insisted on in the whole charge, there was a binding contract by the defendants to deliver safely, not only at the warehouse at B., but also to the plaintiff at his residence at B. In this case the court held unanimously that the special facts created an obligation on the part of the defendants to deliver to the plaintiff at his residence ; and although the charges were actually distinct, yet that they were so far identical and one, as to constitute an insurance contract to dehver safely to the plaintiff beyond the known limits of the carrier's transit. But there was some difference of opinion among the members of the court on the general question as to the ordinary termination of such transit. Lord Kenyon, C. J., seems to have thought that the carrier's liability ends as soon as he has wharfed or warehoused his consignment at the end of the transit (j); that generally there is a complete delivery at this point, sufficient to absolve the carrier from subsequent liability ; and that warehousing and porterage are in the nature of distinct contracts between the consignee and third parties, with which the carrier, as such, is not concerned. But the rest of the court con- curred with Ashhurst, J , that generally " a carrier is bound to deliver the goods to the person to whom they are directed;" and that the warehouseman and porter in the case were the servants of the carrier. Grose, J., said : " The law which makes carriers answerable as insurers is indeed a hard law ; but it is founded on wisdom, and was established to prevent fraud. But it seems to me that it would be of little importance to determine that carriers were liable as insurers, unless they were also bound to see that the goods were carried home to their destination; since as many frauds may be practised in the delivery as in the carriage of them. In general, the carrier appoints a porter, who provides a cart for the purpose of delivering goods ; but it would be open to an infinity of frauds if the carrier could discharge himself of his responsibifity by ij) Cf. Giles V. Taff Vale, 2 Ell & Bl. 822, Sc. Cam. 48 THE COMMON LAW DUTY delivering tliem to a common porter — a person of no sub- stance—a beggar, of whose name the owner of the goods never heard, and against whom, in the event of the goods being lost, there could be no substantial remedy. . . . The defendants therefore ought to be answerable for the acts of those whom they nominate. ... I think that common carriers are answerable if the goods be lost at any time before they are delivered to their owners." This doctrine appears to be good law. Accordingly, if the goods arrive at the end of the transit and be lost before delivery, or delivered to a wrong consignee, or even to the actual consignee, under circumstances which ought to have made the carrier doubt whether he ought to deliver his consignment, a common carrier will be liable, without negligence, as for a nondelivery ; and a special carrier for hire for a negligent delivery. In Stephenson v. Hart (A), J. W., intending to defraud the plaintiff, applied to him to send a parcel of valuable goods addressed to J. W., 27, Great Winchester street, London. The plaintiff accordingly delivered such a parcel, so addressed, to the defendant, who carried it for hire to the address; but, on inquiring there for J. W., found that no such person lived or was known there. A week after- wards the defendant received a letter from St. Albans, signed J. W,, and stating that a parcel had been addressed to him by mistake at 27, Great Winchester street, and requesting that it should be forwarded to him at a public- house at St. Albans. The defendant forwarded it ac- cordingly ; and it was claimed at St. Albans by a person calling himself W., who absconded with it. Lord Ten- terden left it to the jury to say whether the defendant had delivered the box in the due course of his duty and business as a carrier; and they found a verdict and damages for the plaintiff. The court refused a new trial, and held the carrier liable to the consignor. Burrough, J., said : " At the outset, no doubt the contract was between the carrier (A-) 4 Bing. 476. OF COMMON CARRIERS, ETC. 49 and consignee ; but when it was discovered that no such person as the consignee was to be found in Great Win- chester street, that contract was at an end, and the goods remaining in the hands of the carrier as the goods of the consignor, a new implied contract arose between the carrier and the consignor to take care of the goods for the use of the consignor." His Lordship added, that the circumstance of " no such person as the consignee having been ever heard of at the place to which the goods.were addressed, ought to have awakened the suspicion of the defendants, and they were guilty of gross negligence in parting with them without further inquiry." The delivery must either be at the actual residence of the consignee, or there must be a tender by the carrier tantamount to a delivery. A bona fide tender by the carrier will be sufficient ; and the consignee cannot subse- quently recover for a nondelivery. But where the carrier tendered the goods to the consignee, and then refused to deliver them because the latter was not ready with the hire ; and then subsequently refused to deliver, not on the ground that he had made a sufficient tender, but on a claim of lien which proved to be unfounded ; it was held, that his contract to deliver remained unperformed (I). The delivery, according to the circumstances of the case, will be either to the actual consignee, as in the cases just stated ; or to the owner, as in Richards v. London and South Coast Railway, and Butcher v. London and South- western Railway {m), or at a specified terminus, or to an authorized agent. The carrier may deliver to the real owner of the goods, although he be neither the consignor nor the consignee {n), or to the lawful guardian of an infant consignee (o) ; but it is no answer to an action against a carrier by a consignee for nondelivery of goods, that the (/) Storr V. Crowley, 1 M'Cle. & (n) Sheridan v. New Quay Com- Yo. 129. pany, 28 L. J. 58, C. P. (w) Supra, p. 43. (o) Barker v. Taylor, 1 C. & P. 101. 50 THE COMMON LAW DUTY carrier has delivered them to the consignor ; or that he has paid the consignor compensation for the loss of them (p). But if the carrier deliver in pursuance of his employment, without notice of the real owner's claim, the carrier is justified {(/) ; and if he deliver to a wrong consignee, he may recover the value from the latter (r). Much also, in deciding whether there has been a delivery to the right person or at the right place, will depend upon the carrier's usual course of delivery, where it is such that the contract must be held to have been subject to it. Thus, in Butcher V. London and South-Western Railway, the company's course of delivery formed the basis of their liability. The trust had apparently determined as soon as the passenger stepped from the train on to the platform ; but the com- pany's course of business extended their liability beyond its ordinary terminus, until all the passenger's luggage was placed in the cab. So, in Richards v. London and South Coast Railway, Cresswell, J., said : " It cannot be said that the company fulfilled what they undertook, if they did not deliver the parcel : and if the nsual course of delivery was on the other side of the platform, that would be the place at which they ought to deliver." Where the carrier seeks to limit his •liability by en- grafting an usage of trade on his contract of delivery, such usage must clearly appear. This was settled in the Ex- chequer Chamber, in Bourne v. Gatliffe (s). There the first count of the declaration charged the defendant, as a special carrier for hire, with a duty to convey the plain- tiff's goods, safely and securely, from Belfast to London, and to deliver them at the port of London, to the plaintiff or his assigns. The breach was nondelivery; and the defendant pleaded substantially, first, that he had safely imshipped and deposited the goods at Fenning's wharf, at (p) Coombs V. Bristol and Exeter pany, supra, p. 49. Railway, 3 H. & N. 1 ; 27 L. J. 269, (r) Vernon v. Hodgson, 4 Taunt. Exch. 189. (7) Sheridan v. New Quay Com- {s) 3 Sco. N. R. 1. OF COMMON CARRIERS, ETC. 51 the port of London ; that the wharf was a fit and usual place for such goods to be deposited on ; and that they were there accidentally burned. The plea was held to be bad, because it did not appear from it that there had been an actual delivery to the plaintiff or his assigns; nor a delivery according to the custom of London ; nor that the plaintiff had notice of the arrival ; nor that a reasonable time had elapsed within which the plaintiff might have removed the goods. A second count charged the defendant with a duty to convey the goods safely to London, to take care of the goods when wharfed, and to deliver them within a reason- able time to the plaintiff; breach, nondelivery within a reasonable time. The defendant pleaded that he had wharfed the goods safely, and that, before a reasonable time had elapsed for the delivery, they were burned without any negligence on his part. This plea was held good, as the defendant, not being a common carrier, was bound to use only ordinary care. It was also held, that the judge was right in refusing at the trial to tell the jury that a delivery at Fenning's wharf was a delivery to the plaintiff; and that it was for them to say on the evidence, whether such a delivery was good, according to the usage of delivering goods in the port of London. 5. A Common Carrier must accept goods for carriage within a reasonable time after they have been tendered to him, with a proper amount of hire ; and must deliver them to the Consignee ivithin a reasonable time (t). In Crouch v. Great Western Railway (u), the declaration charged the defendants, as common carriers, with having refused to receive the plaintiff's goods for carriage, within a reasonable time after the plaintiff had tendered them, with the hire, to be carried. The plea set up the insuffi- (0 Golden v. Manning, 2 W. Bl. («) 9 Exch. 556. 916. e2 52 THE COMMON LAW DUTY ciency of the hire tendered ; but it was held bad on the facts of the case, and the plaintiff had judgment. " The duty to deliver within a reasonable time is a term grafted by legal implication upon a promise or duty to deliver generally" (x). In that case goods had been in- trusted to the defendants, who were common carriers, to be conveyed from London to Birmingham. They were delivered to the defendants in London on the 8th Augiist; and, notwithstanding repeated applications by the plaintiff, were not delivered at Birmingham until the 3rd September. The delay was caused by the direction having been acci- dentally destroyed ; but, in consequence of it, the plaintiff was unable to fulfil a contract with a third party. Some doubt was raised as to the sufficiency of the declaration ; but the defendants were held to be liable for the delay. It was stated in this case, that the onus of proving a delivery within a reasonable time lies with the carrier; and it seems that he is only bound to deliver goods within such a time as, according to the ordinary course of his business, appears to be reasonable. Where the defendants had contracted to carry fish for the plaintiff, and had stipulated only to deliver within a reasonable time, but had been accustomed to carry fish previously for the plaintiff by a certain train : it was held, that they were liable for the delay in delivery, which was caused by a negligent omission to forward the truck, in which the plaintiff's fish was, by the usual train (?/). It seems from this case, that a contract to deliver within a particular time may be inferred from a carrier's ordinary course of business. There is a distinction between the implied contract of a common carrier to carry passengers within a reasonable time, and his contract to carry goods or cattle ; and in both cases the measure of negligence depends on the tariff. In the carriage of passengers, the carrier is bound to use (x) Per Tindal, C. J., Raphael v. (y) Wren v. Eastern Counties Pickford, 5 M. & G. 558. Railway, 1 L. T. Rep., N. S. 5, Q. B. I OP COMMON CARRIERS, ETC. 63 extraordinary efforts to convey them within the usual time ; and to incur additional expense for that purpose, because they pay a higher fare than is paid for the conveyance of cattle or goods. But in the carriage of goods or cattle, for which a lower fare is usually paid, the carrier is not bound to use extraordinary efforts, nor to incur addi- tional expenses, in order to deliver within the usual time ; and if a snow storm, or similar obstruction, delay the carrier, in the latter case, he will be excused. The common carrier's contiact of insurance in both cases does not necessarily include a contract to deliver within a specified time; but in all cases where he is charged with delay in delivering, it is a question for a jury whether, under all the circumstances of the case, the delay was reasonable, or whether it arose from his negligence ; and, according to the verdict, he will be liable, or discharged from liability for delay (z). The liability of carriers for delay, under the limitations of special contracts, will be treated in a subsequent chapter (a). (z) Briddon v. Great Northern Pole u. Cetcovitch, 3 L. T. Rep. 438. Railway, 28 L. J. 51, Exch. ; Cf. (a) See Chapter VIII. Golden v. Manning, 2 W. Bl. 916; ( 54 ) CHAPTER V. THE COMMENCEMENT, DURATION, AND TERMINATION OF A carrier's liability. BOOKING-OFFICE KEEPERS. The general view of a carrier's duties and liabilities, as contained in the preceding chapter, may have sufficed, it is hoped, to have conveyed a correct and practical idea both of their duration and of their extent ; but these incidents will be considered more in detail in the present and the following chapter. A carrier, according as he is a common or special carrier for hire, becomes liable — in the first case as an insurer, and in the second case as a bailee liable for negligence — the instant that he receives goods for carriage into his custody from the bailor (a). There must be a dehvery from the bailor, and an acceptance by the carrier, before the liability of the latter begins ; but it begins as soon as there is an actual or constructive delivery by the bailor or his agent, and an actual or constructive acceptance by the carrier or his agent. When a carrier, in an action for loss of goods, pleads that they were not delivered to him, the plaintiff must show that he actually delivered them to the defendant, or to an authorized agent of the defendant. Thus, in Grif- fiths V. Lee (&), the consignor proved that he gave the parcel to the defendant's coachman, and that it was directed to the plaintiff. This was held to be sufficient prima facie evidence of a delivery to the defendant. Where the carrier denies that goods were ever delivered to him, it is for a jury to say whether, on all the circum- (a) Lee, C. J., Daley. Hall, IWils. 219 282 J Fragrano r. Long, 4 B. & C. (i (6) 1 Car. & P. 110. THE COMMENCEMENT, ETC. OF A CARRIER'S LIABILITY. 55 stances of the case, there was an actual or constructive delivery to him. Where goods were brought by one carrier, and dischaged on the wharf of the defendant who was also a carrier, to forward on to the plaintiff; it was held, that it was for the jury to say whether the custom of the first carrier to discharge goods on the defendant's wharf, and an acknowledgment by the defendant's agent that the goods in question had arrived for the defendant, did not constitute a sufficient constructive delivery to the defendant (c). But a mere delivery of goods at an inn where a carrier lodged, and where he was told that he would find them, has been held to be no delivery (d). If the owner expressly agree to accompany the carrier and take care of the goods, the latter will not be liable. Thus, in Brind v. Dale (e), where the plaintiff hired a town carman, who plied only occasionally for jobs, and whom Lord Abinger, C. B., therefore, held to be only a special carrier for hire ; his Lordship told the jury, that if " the goods were put into the cart under a modified contract that the plaintiff should go with them and take care of them, the carrier would not be liable." In this case the defendant's servant had said to the plaintiff when the latter hired him, " Don't you leave me ; I cannot leave the horse to look after the goods ;" and the plaintiff said, " I shall go along with you to look after the goods." This evidence, under the above direction, was held to support a verdict on one of the issues for the defendant, on the ground apparently that there had never been any complete delivery to the carrier. It must not be inferred from this case that there can be no complete delivery to the carrier in cases where the passenger merely accompanies his goods : nor even in ordinary cases, where, as a passenger, he retains them in his custody during the carriage (f). It appears to have (c) Quigger v. Duff, 1 M. & ^Y■ Raym. 46. 174. {e) 8C. & P. 207. . (d) Selway v. Holloway, 1 Lord (/) See supra, Chapter IV., p. 43, 56 THE COMMENCEMENT, DURATION AND TERMINATION been thought, in Blind r. Dale, that the evidence there warranted the jury in finding an express contract between the owner and the carrier, by which the former was held to retain the possession and custody of the goods, even while they were in the hands of the carrier. But a carrier cannot contend successfully that goods have not been bailed to him merely because the owner accompanies them in the transit ; nor even on the ground that the owner has never parted with the manual possession of them ; for the acquiescence of the carrier in the retention of possession by the owner, will generally suffice to charge the carrier, from the commencement of the transit, as entirely as if the goods had been then actually delivered into his custody. Thus, in Richards v. London and South Coast Railway, and Butcher v. London and South-Western Railway {g), the facts ostensibly created even a stronger presump- tion than in Brind v. Dale, that there had been no delivery to the carrier. The owner in each case never lost sight of the chattel, nor in any way parted with the visible and manual custody of it at the commencement of the transit. But in both cases there was manifestly held to have been a complete delivery to the company at that point of time ; and the presence of the owner in no way lessened the carrier's liability as after an actual delivery to him. In the second case, Cresswell, J,, seems to have thought that it might have been well left to the jury to say whether, under the circumstances, there had been a delivery to the carriers; but as the question had not been put, it was necessary to assume that there had been originally a delivery. The place at which the goods were delivered to the carrier ought to be accurately stated in the declaration ; but a variance in such a case is unimportant. Where the declaration described the place at which the goods were delivered as " Chester, in the county of Chester," and it appeared from the evidence that Chester is a county in ig) Supra, pp. 42, 43. OF A carrier's liability. 67 itself, and that the proper description would have been " Chester, in the county of the city of Chester," the variance was held immaterial, even before 15 & 16 Vict, c. 76, s. 222 (h). Delivery to Agents and Booking-office Keepers. A delivery of goods by the consignor to a booking-office keeper, or other agent authorized to receive goods for the carrier, will constitute a good delivery to, and acceptance by, the latter. The agency must be proved by the party who relies on it as evidence of a delivery. In Burrell v. North (i), the action was against a carrier for the loss of a parcel. A witness proved that such a parcel was left by the plaintiff at her husband's house to be carried by the defendant, and that she was in the habit of receiving goods for the defendant to carry. This was held sufficient proof of the witness's agency, and of a delivery to the defendant. Erie, J., said : " If the defendant allow these persons to receive parcels to be conveyed by him as a carrier, that is quite enough." But the mere fact that a booking-office, or other re- ceiving-house, is in the habit of taking in parcels, and of forwarding them by a particular carrier, will not necessarily constitute the booking-office keeper an agent for the carrier, nor create such a privity of contract between the owner and the carrier, as will render the latter personally liable for loss or damage. Accordingly, where goods have been intrusted to a booking-office keeper to be carried, it is often a difficult question to determine, whether he is acting as a principal, or simply as an agent for the carrier ; and, in determining the party against whom an action can be successfully brought for loss or damage, the closest attention must be paid to the circumstances of each case, in order to decide (h) Woodward v. Booth, 7 B. & (i) 2 C. & K. 680, C.301. 58 THE COMMENCEMENT, DURATION AND TERMINATION whether it is to the booking-office keeper, or to the carrier, that the owner should look for compensation. If a booking-office keeper, as such, receive goods to be forwarded by a carrier, he will not be liable, without negligence, for damage or loss; for he is not himself a common carrier, and does not insure against loss (/). And where goods were deposited with a person who acted generally as a booking-office keeper for different carriers, but who did not appear to be paid for his trouble, nor to have any fixed course of dealing; it was held, that the mere fact of a loss from such custody was not enough to charge him (w). Whenever it is sought to charge a booking-office keeper as a carrier, or as an agent for a carrier, it must be clearly proved that he has acted as such. In Upston v. Slark, the declaration was against the defendant as a common carrier for the loss of a parcel ; and it appeared that he kept a booking-office in Piccadilly, at which parcels were booked for various coaches and waggons to different places. On the door w as painted " conveyances to all parts of the world," followed by a list of places, including that to which the parcel was booked. Lord Tenterden, C. J., did not think this sufficient evidence to charge the defendant as a common carrier, and said : " We know that there are places in this town, booking-offices, that do not belong to carriers; and I am clearly of opinion that you cannot convert the keeper of a booking-office into a carrier." But, although a booking-office keeper is not an insurer, he will be liable as any ordinary bailee for hire if loss arise from his negligence. In Williams v. Gusey (w), there does not appear to have been any evidence that the book- ing-office keeper was a bailee lor hire ; and it may be presumed that he was not. Accordingly, it has been held that, if it appear that the booking-office keeper was paid (Z) Newbon u. Just, 2 C. & P. 76 ; (ra) Williams v. Gusey, 5 Sc. 57. and Upston v. Slark, ib. 598. («) Supra. OF A carrier's liability. 59 for the custody, and for his undertaking to forward the goods by a carrier, he will be liable for damage by negli- gence on proof that they were never delivered to the carrier (o). It is also held, that a booking-office keeper who receives hire " is bound to take care of the thinos given into his custody by putting them into a safe place" (p). And where the defence for a loss was that the goods had been left exposed in the house because they were of an inconvenient size, it was held no justifica- tion (g). Where the booking-office keeper is found to be the au- thorized agent of the carrier, the latter is clearly liable for the negligence of the former ; and it appears that the booking-office keeper may also be rendered liable (r). In Colepepper v. Good, the booking-office keeper, who was found to be an authorized agent of the defendant, a carrier, had misdirected the plaintiff's chest: or had suffered it to be misdirected while in his custody; and the defendant had delivered it according to the misdi- rected address. The defendant was held liable for the negligence of the booking-office keeper. Gaselee, J., said : " If a carrier has directed goods to be sent to a particular place, I think that the party sending them has, in point of law, a remedy against him for any misconduct on the part of the booking-office keeper. . . . And I agree that, when a booking-office keeper has misconducted himself, the party injured may maintain an action against him." But, if a person take goods to the carrier's booking-office, and refuse to pay the charge demanded for booking, the carrier will not be liable if the owner leave the goods and they are lost(s). When it is sought to charge the booking-office keeper for the loss of goods which have been intrusted to him for the purpose of being forwarded by a carrier, it must be (o) Newbon t. Just, 2 C. & P. 77. (r) Gaselee, J., in Colepepper v. {p) Park, J., DoviT v. Mills, 5 C. Good, 5 C. & P. 380. & P. 175. («) Peake's Add. Cas. 185. (?) Ibid. 60 THE COMMENCEMENT, DURATION AND TERMINATION proved that there was a loss or damage while they were in his custody: and it will not be enough to show merely that they never reached the consignee. Thus, where the defendants were general booking-office keepers, and re- ceived goods, with a payment for booking, from the plaintiff, to be forwarded by a carrier, but no particular conveyance was named ; the plaintiff was held to be rightly nonsuited, on showing merely that the goods never reached their address, because the only duty of the de- fendants was to deliver to a carrier (u). If there be no privity between the booking-office keeper and the carrier, the former will be personally responsible for the goods up to the time of the delivery to the carrier; but the liability of the latter will begin as soon as he is fixed with the acceptance of the goods, or as soon as they are traced into the hands of his authorized agent ; and it will make no difference as to his liability, that the goods have passed through the hands of several sub-agents on their way to the carrier, if the evidence satisfy the jury that such sub-agents were acting, expressly or impliedly, by the authority of the carrier. This doctrine is well illustrated in Syms v. Chaplin (x). There the plaintiff addressed a parcel to London, and paid for booking generally at A. The postmaster at A. had been accustomed to receive such parcels and forward them by B., the driver of the mail cart, to C. B. had been accustomed, after I'eceiving such parcels from the postmaster, to deposit them at C. with D. At C. the mail coach of the defendants had been in the habit of stopping to receive parcels from D. This was the course in the present case ; and the coachman paid D. for the carriage of the parcel from A. to C, and charged it on to the defendants. D. was found on this evidence to be a re- ceiver for the defendants, although he had never been ex- pressly authorized to act for them, and although he was (a) Gilbert t>. Dale, 5 Ad. & Ell. C. P. 543 ; Midland Railway Company v. (x) 5 Ad. & Ell. 634. Bromley, 17 C. B. 372; 25 L. J. 94, I OF A carrier's liability. 61 under no obligation to send the parcel by the coach of the defendants rather than by any other carrier. The court approved of this verdict. Lord Denman, C. J., said : " A carrier, receiving goods, undertakes to carry them to the person whose address is upon them ; the fact of their coming to him through a series of agents does not prevent his being Hable to the sender. He cannot throw back the Habihty upon the earhest agent." It will be noticed that in this case the plaintiff was the consignor; and that there was, therefore, an apparent in- fringement of the rule, which will be considered later, that, as in general the property of goods passes from the consignor to the consignee by delivery to the carrier, the consignee, and not the consignor, is the proper plaintiff in the event of loss (3/). But in Syms v. Chaplin and other cases, the plaintiff apparently was consignee as well as consignor ; or the goods were at the risk of the consignor, who there- fore retained his right to sue (z). The liabilities of carriers for the acts of their booking- office keepers or other receivers are also subject to 11 Geo. 4 & 1 Will. 4, c. 68 (the Carriers Act). The fifth section enacts : — " That for the purposes of this Act every office, warehouse or receiving-house, which shall be used or appointed by any mail contractor or stage-coach proprietor or other such common carrier as aforesaid for the receiving of parcels to be conveyed as aforesaid, shall be deemed and taken to be the receiving-house, warehouse or office of such mail contractor, stage-coach proprietor, or other common carrier : and that any one or more of such mail contractors, stage-coach proprietors, or common carriers, shall be liable to be sued by his, her or their name or names only ; and that no action or suit commenced to recover damages for loss or injury to any parcel, package or person, shall abate for the want of joining any co-proprietor or co-partner in such mail, stage-coach, or other pubhc conveyance by land for hire as aforesaid." {y) Dawes v. Peck, 8 T. R. 330. Finn. 600 ; Sheridan v. New Quay («) Dunlop V. Lambert, 6 CI. & Company, 28 L. J. 58, C. P. 62 THE COMMENCEMENT, DURATION AND TERMINATION It has been lield, under this section, that a delivery to a carrier's servant, who liad been sent to receive the goods f'roui the consignor, is a good deUvery to fix the com- mencement of tlie carrier's habiHty(a). And if a message be left, at the carrier's booking-office, to send for goods, and the carrier send to receive them ; his liability will be the same as if they had been delivered at the booking- office {b). It was decided before the Act, that a contract of car- riage made by one of several joint proprietors as carriers binds all who were partners at the time, and all who sub- sequently become partners (c). The Duration and Termination of a Carrier s Liability. A carrier's liability runs from the moment of delivery and acceptance by him, or his agent, until the moment when he delivers the goods, actually or constructively, to the consignee, or at the stipulated place of consignment (c?). His liability ceases as soon as he has fulfilled either of these conditions (e). The great practical difficulty in determining when a carrier's liability has terminated, lies in the difficulty in determining when he has made a complete delivery. As soon as the delivery is complete the bailment is at an end, and the carrier's liability ceases. It is obvious, therefore, that in the majority of cases the time at which his liability ends can only be ascertained by considering and defining the circumstances, and the express or implied elements of the original bailment. A complete delivery, and a terminated liability, are in this case synonymous and con- vertible terms ; but the facts which render it allowable to deny or to affirm either proposition in the case of a bail- ment to a carrier, are subject to rules of the utmost nicety, (a) Boys v. Pink, 8 C. & P. 361. (d) Fowles y. Great Western Rail- (b) Davey v. Mason, C. & M. 45. way, 7 Exch. 699 ; 22 L. J. 76, Exch. (c) Helsby v. Mears, 5 B. & C. (e) Richards y. London and South 504; 8 D. & R. 289. Coast Railway, 7 C. B. 839. 1 I OF A carrier's liability. 63 The question in every case must be — what was the express contract, if there was an express contract ? or what was the imphed contract, if the bailment originated without an express contract ? The common law requires the carrier to deliver the goods to the consignee, or at the place to which they are addressed. Thus, in Forward v. Pittard(/), the goods were delivered to the carrier on a Thursday, and by the course of travelling could not be delivered until the following Saturday. They were burned accidentally on the intervening Friday, and the carrier was held clearly liable. In Garside v. The Proprietors of the Trent and Mersey Navigation {g), the plaintiff, wanting to send goods from A. to C, hired the defendants, as common carriers, to carry them to an intermediate stage, B. ; and the defend- ants also agreed to warehouse the goods without charge at B., until they could be delivered on to the C. carrier. Here, also, the goods were accidentally burned while they were so warehoused, and before there was any opportunity of delivering them to the C. carrier. It was held, that the liability of the defendants, as carriers and insurers, had ended on the arrival of the goods at B. ; that their liability, as warehousemen, was a totally distinct liabihty ; and that as the warehousing was gratuitous, and for the convenience of the plaintiffs, they were not liable without negligence. Here, then, the exemption from liability was founded on the broad and common distinction which exists between a contract to carry, and a contract merely to warehouse after the virtual termination of the transit (h). But this distinction becomes clouded by the almost immediately subsequent case of Hyde v. Trent and Mersey Navigation Company (i). There, also, the defendants, as common carriers for hire, undertook to carry the plaintiff's goods from A. to C. ; and the plaintiff knew that, in the transit, the goods would necessarily pass through B. and (/) 1 T. R. 27. (Ji) Supra. {g) 4 T. II. 581. (0 5 T, R. 389. 64 THE COMMENCEMENT, DURATION AND TERMINATION be warehoused there ; and that beyond B. the defendants were merely acting as agents for third persons, to whom they were accountable for the profits of the carriage be- yond B. The goods, on their safe arrival at B., were placed by the defendants in the warehouse of one of such third persons, and there burned accidentally. The defend- ants were held liable, on the ground that, as there had been originally one payment for the whole distance, there was one indivisible contract and continuing liability, on the part of the defendants, to deliver safely at C. The principle established by this case, as distinguished from that which precedes it, is that where there is a pay- ment, or a charge, in the first instance, for carriage beyond the known limits of the carrier's transit ; the carrier's liability extends beyond such limits up to the ultimate point at which the final delivery is to be made. In Gar- side V. Proprietors of the Trent and Mersey Navigation, the contracts of carriage and warehousing were held distinct, partly on the exphcit understanding between the contracting parties ; but chiefly because the warehousing was gratuitous, and because it was not necessarily included within the ordinary transit. Accordingly, the distinction between the liabilities of a common carrier, and of a warehouseman as such, was treated as fully established in Re Webb and others (A). There, in consideration that S. would employ Webb and his partners as common carriers for hire, they promised to warehouse the goods of S. at the end of the transit, without charge, until it should be convenient for S. to send for them ; and it was held that a payment, in the nature of an insurance, made to S. by Webb for the goods, which were accidentally burned while in the warehouse, did not entitle him to contribution from his co-partners, because the liability of the partners as warehousemen was totally dis- tinct from their liability as carriers; and that, as they must be held to have been acting in the former capacity, (A-) 8 Taunt 443. OF A carrier's liability. 65 when the goods were burned, they were not liable on a gratuitous bailment, and without negligence. Hence, where there is a distinct understanding or usage that goods are to be warehoused at the end of the transit until they can be delivered to 'the consignee, the liability of the carrier ends at the moment when they pass from his hands into the custody of the warehouseman (/) ; and if the goods are injured in their transmission from the carrier to the warehouseman, the latter will be liable, it is said, if he accept them in their damaged condition (m). But there must be a complete delivery to the warehouseman or a wharfinger, such as would enable the owner to sue the latter for a subsequent loss ; and the carrier's liability will not determine otherwise (n). But as soon as the goods are actually delivered to the warehouseman, the carrier's liability ends; and the warehouseman becomes liable, not as an insurer, but as an ordinary bailee for hire (o), for the value of the lost article, but not for damages arising from the loss. Thus, where a commercial traveller lost a case of patterns from the left luggage room of the defendants, and had to wait fifteen days before he could obtain another case ; he was held not to be entitled to his expenses while waiting the fifteen days, nor for compensation for his loss of time (p). When the carrier and the warehouseman are different and unconnected persons, there is little practical difficulty in determining when the liability of the former ends, and that of the latter begins ; but the difficulty is when the carrier and the warehouseman are the same person. In such a case the unity or divisibility of the liability will depend, as already stated, on the unity or divisibility of the original contract ; and where the money consideration (0 Thomas v. Day, 4 Esp. 263. & Ell. 109; Cailiff t>.Danvers,Peake, (tn) Ibid. N. P. Cas. 155. (n) Buckman v. Levi, 3 Camp. (p) Henderson v. South-Eastera 414. Railway, 9 W. R. 519. (o) Randleson v. Murray, 8 Ad. P 66 THE COMMENCEMENT, DURATION AND TERMINATION can be made to apply to the whole transaction, the courts have shown a disposition to treat the contract as one and entire; at least so far as to hold the carrier liable, in the nature of a bailee for hire, as a warehouseman, even though he be in that capacity nominally a gratuitous bailee, pro- vided that the original consideration for the carriage can be made also to imply a promise to warehouse safely. Thus, where the defendants carried as common carriers for the plaintiff, and offered to deliver ; but the plaintiff sent back the goods to the defendants' warehouse, there to await his orders, and the goods were subsequently lost : the defendants were held hable as warehousemen, because the original consideration for the carriage appeared to include an adequate remuneration for the warehousing, although it was not to be charged for. Lord Abinger, C. B., said : " A distinction has been properly drawn between the duties of a carrier and of a warehouseman. But the party may have so large a compensation as a carrier as to be sufficient also to remunerate him for acting as warehouseman, as is the case with many of the canal companies; and it is quite consistent with both these characters that he will, for a certain time, until further orders, or for a reasonable time, keep the goods, consider- ing the general remuneration for carrying sufficient to cover this risk also" (q). It will be observed, that in this case there was no attempt to charge the defendants as carriers, but only as warehousemen ; and their liability in the former capacity had clearly determined when they tendered the goods to the plaintiff before they were sent back. When the delivery to the consignee is to be beyond the limits of the carrier's transit, his liability may either termi- nate with a delivery over to a carrier, authorized to forward on ; or it may be prolonged up to the moment w hen the goods are delivered to the consignee. But, in the absence of an agreement to the contrary, if a carrier receive goods which are addressed to a place beyond the terminus of his (q) Cairns v. Robins, 8 M. & W. 258. OF A carrier's liability. 67 transit, he will be liable beyond such terminus, and until they have been delivered at the ulterior and ultimate point. This doctrine is clearly the result of all the latest cases. Thus, in Muschamp v. Lancaster and Preston Junction Railway (r), the defendants, as common carriers, received a parcel directed to Bartlow, a place beyond Preston. The railway of the defendants ended at Preston. The agent of the defendants was requested to book the parcel, and was offered the charge for the whole distance ; but he replied that it had better be paid on receipt by the consignee. The parcel arrived safely at Preston, and was there for- warded on by another railway. It was lost on this part of the transit. Rolfe, B., told the jury that " when a common carrier takes into his care a parcel directed to a particular place, and does not by positive agreement limit his respon- sibility to a part only of the distance, that is prima facie evidence of an undertaking on his part to carry the parcel to the place to which it is directed ; and that the same rule applied although that place were beyond the limits within which he in general professed to carry on his trade of a carrier." The court held this direction to be correct, and supported a verdict for the plaintiff. Lord Abinger held> that there was evidence for the jury of a contract by the defendants to carry the whole distance; and attached some importance to the fact that the charge was to be paid in one sum at the end of the whole distance. His Lordship also distinguished the case of a carrier from that of a contract with a booking-office keeper, who is discharged as soon as he has delivered the goods to the carrier. His Lordship added : " In cases like the present, particular circumstances might no doubt be adduced to rebut the inference which prima facie must be made of the defend- ants having undertaken to carry the goods the whole way. The taking charge of the parcel is not put as conclusive evidence of the contract sued on by the plaintiff; it is only prima facie evidence of it ; and it is useful and reasonable (;•; 8 M. & W. 421. f2 68 THE COMMENCEMENT, DURATION AND TERMINATION for the public that it should be so considered. It is better that those who undertake the carriage of parcels for their nuitiral benefit should arrange matters of this kind inter se, and should be taken each to have made the others their agents to carry forward." This case was followed by Watson v. Ambergate, Not- tingham and Boston Railway Company (s). There the defendants were held liable for damages arising from the detention of the plaintiff's goods on an ulterior railway, by which the goods were forwarded on. This case is remark- able for the fact, that the plaintiff had been expressly told, at the time when he delivered the goods to the defendants, that they could receive payment only for the transit to their own terminus ; but there was some evidence that their agent had told the plaintiff that the goods would arrive in time at their ultimate destination. The court confirmed the principle, that the ulterior railway must be taken to have been acting as agents of the defendants, and that there was evidence of an original contract by the latter to carry the whole distance. Erie, J., stated the rule shortly to be that, " where goods are received at one terminus for conveyance to another, the company are answerable for all the intermediate termini ; and the receipt of such goods is prima facie evidence of liability." In Scothorn v. South Staffordshire Company (t), the plaintiff had paid carriage for the whole distance of goods consigned to the defendants to be delivered on shipboard in London. The defendants, according to their course of business, forwarded them from their terminus at Birming- ham, by the London and North-Western Railway to London. After the arrival of the goods at London, but before they had passed out of the hands of the London and North-Western Railway, the plaintiff gave a counter- mand of the delivery to the agent of the latter railway. The goods were, notwithstanding, put on board the ship by (s) 15 Jur. 448. (0 8 Exch. 341 ; 22 L. J. 120, Exch. OF A carrier's liability. 69 the defendants and were afterwards lost. It was contended for the defendants, that the agent of the London and North- Western Railway was not an agent for the defendants to receive a countermand, but only to forward on the goods, as he had in fact done, to their address. But the court held, that the London and North-Western Railway were agents of the defendants for all the purposes of the original contract ; and that one of its essential elements was a right of countermand retained by the sender during the whole transit. It will be observed, that this case is clearly distinguishable from cases in which the carrier's agent exceeds his authority, by incurring a liabihty which the carrier has previously repudiated by a distinct contract with his employer (u). In Colhns v. Bristol and Exeter Railway (x), the general doctrine was admitted; but questions arose under the terms of a special contract, by which the Great Western Com- pany, on receiving the plaintiff's goods to be carried to Torquay, stipulated that they would not be answerable for loss by fire, nor for any loss, or damage, beyond the limits of their local regulations for delivery : and that beyond those limits they undertook only to forward the goods " to their destination by a public carrier, or otherwise as opportunity may offer." The goods were conveyed to Bristol where the line of the Great Western Company ends, and that of the defendants begins ; and were then transferred on the same truck, which belonged to the Great Western Com- pany, and which remained under the charge of the same guard, also a servant of the Great Western Company, to the line of the defendants, in order to be conveyed to Exeter, and there dehvered on to the South Devon line, by which they were to be conveyed to Torquay. At Exeter, the goods, while still on the truck of the Great Western Company, were burned, without negligence on the part of tlie defendants. The only question reserved was, whether (u) See Slim v. Great Northern 23 L. J. 166, C. P. Railway Company, 14 C. B. 647; (a:) 25 L.J. 185, Exch. 70 THE COMMENCEMENT, DURATION AND TERMINATION the terms of the special contract exempted the defendants from habiUty ; and this was decided affirmatively, on the principle that the special contract would have protected the Great Western Railway for the whole distance, and therefore that it protected the defendants. This judgment was reversed in the Exchequer Chamber iy), where it was held, that the special contract only protected the Great Western Railway : that that railway was merely an agent of the plaintiff to forward on the goods : and that the de- fendants were liable for the loss by the fire as common car- riers. But this judgment was itself reversed in the House of Lords {z), where the judgment of the Court of Ex- chequer was confirmed : and the House of Lords also held that it was competent for them to declare — as they declared accordingly — that there had been no contract between the plaintiff and the defendants, but only between the plaintiff and the Great Western Railway ; or that if there had been any contract with the defendants the special condition protected them. The result, therefore, of this case is to establish the doctrine of the cases which have been cited as preceding it. To the same effect is Wilby v. West Cornwall Railway (a), where the railway of the defendants extended only from Penzance to Truro : and the defendants, as common carriers, contracted to carry the plaintiff's goods to Wolverhampton. •At the terminus of the line of the defendants they shipped the goods in a steamer to Bristol, in order that they might be forwarded to Wolverhampton. When shipped they were sound and undamaged ; but when they were delivered at Wolverhampton they were damaged. The defendants were held to be liable. So, where the plaintiff booked through from a railway to a terminus, between which and the point of departure an intermediate railway formed part of the road: it was (y) 1 H. & N. 517; 26 L. J. 103, {a) 2 H. & N. 703 ; 27 L. J. 181, Exch. Exch. {z) 29 L. J. 41, Exch. i or A carrier's liability. 71 held, that there was only one contract, which was entirely between the plaintiff and the first railway for the whole distance : and that the intermediate railway was not liable to the plaintiff for the loss of his luggage on that part of the line ; although the first railway was also free from such liability under the clause of its private act (J). Here the plaintiff was held to be without remedy of any kind. So, where the plaintiff had contracted with railway carriers for the conveyance of cattle to a terminus, which was beyond the limits of the railway; and which, beyond those limits, had to be reached by the ulterior and inter- mediate railway of the defendants : the contract was held to be with the first railway for the entire journey; and the defendants, as mere agents, were declared not to be liable (c). Where there is an express contract between the carrier and the employer, the duration of the carrier's liability will depend on the terms of it ; and may therefore end at a point of time which falls far short of the implied common law duty. Generally, no doubt, there must be an actual or constructive delivery by the carrier to the consignee at the address; but where a carrier undertakes expressly only to carry to the ordinary terminus of his transit, and stipu- lates that, without longer liability, he shall there transfer the goods to an ulterior carrier for the purpose of being forwarded and delivered to the consignee: the first carrier will not be liable for any damage which the goods may sustain before delivery, while they continue in the custody of the second and ulterior carrier {d). A carrier, who undertakes to receive goods at a place within the realm, and to deliver them at a place out (b) Mytton V. Midland Railway (d) Fowles i). Great Western Rail- Company, 4 H. & N. 615 ; 28 L. J. way Company, 7 Excli. 699; 22 L.J. 385, Exch. 76, Exch. ; Coxon v. Great Western (c) Coxon V. Great Western Rail- Railway, 5 H. & N. 274 ; 29 L. J. way, 5 H. & N. 274; 29 L. J. 165, 165, Exch. Exch. ' 72 THE COMMENCEMENT, ETC. OF A CARRIERS LIABILITY. of the realm, or beyond seas, may be a common carrier, and, as such, subject to all ordinary habilities up to the time of delivery beyond the realm. Thus, where the terminus of the transit was out of Eno-land, it was held that that circumstance did not in any way lessen the carrier's liability (e). (e) Crouch v. London and North- 775; 18 L. J. 85, C. P.; supra, p. Western Railway, 14 C. B. 255 ; 19 ; Scothorn v. South Staffordshire 23 L. J. 73, C. P.; Benett v. Penin- Railway, supra, p. 68. sular and Oriental Company, 6 C. B. ( 73 ) CHAPTER VI. THE EXTENT OF THE LIABILITY OF COMMON CARRIERS AT COMMON LAW FOR THE LOSS OR DAMAGE OF GOODS. THE ACT OF GOD — KING's ENEMIES CONCEALMENT — FRAUD. It has been stated already, in the course of this treatise, that a common carrier is, at common law, absolutely liable as an insurer for the safe conveyance and delivery of the goods intrusted to his care ; and that generally, in an action against him for loss or damage, it will be no defence that he has taken every practicable care of them ; nor that the loss or damage has been caused, without his fault, by unavoidable accident. But even the liabilities of an insurer are not unlimited ; and, in the case of a common carrier, his implied contract of insurance was always sub- ject at common law to two cardinal exceptions, either of which sufficed to relieve him from liability for loss or damage. The first case is where such loss or damage arises from what is called the act of God ; that is, from the occurrence of such uncontrollable physical phenomena as, without being necessarily either supernatural or preter- natural, arise from such an interruption of the ordinary course of nature as a prudent and honest man cannot rea- sonably be expected to provide against, or to anticipate. " By inevitable accident, commonly called the act of God, is meant any accident produced by any physical cause which is irresistible ; such as a loss by lightning or storms ; by the perils of the sea ; by an inundation or earthquake ; or by sudden death or illness" (a). Lord Mansfield defined the act of God to mean " something in opposition to the (a) Story on Bailments, s. 25. 74 EXTENT OF LIABILITY OF COMMON CARRIERS act of man ;" such as " could not happen by the interven- tion of man, as storms, Hghtning, and tempests ;" and ob- served in the same case, tliat " there is a nicety of distinc- tion between the act of God and inevitable necessity" {b). There is an ambiguity in these definitions which the cases do not disperse satisfactorily ; but the following points appear to be settled. When the carrier relies on the " act of God" as a defence against liability for damage, the cause of such damage must have been, in accordance with Lord Mansfield's language, the " act of God in opposition to the act of man ;" that is, it must appear to have been the result of some unusual irregularity in the laws of the physical world. A miraculous interposition of the Deity, or of some supernatural agency, would of course be com- ])rised in the legal signification of the phrase; but this sig- nification is strictly and best confined to such variations in the ordinary laws of nature as cannot be reasonably made the subject of foresight and calculation. A thunderstorm cannot be predicted twenty-four hours before it breaks ; nor, even if it could, would it be reasonable that a carrier should be liable in the improbable and inevitable event of a flash of lightning consuming his consignment. But a thun- derstorm, although comparatively a rare occurrence, and a deviation from the usual routine of natural phenomena, is not a sufla^cient variation from such routine to allow it to be re- garded as the act of God ; although the destruction of goods by lightning, as being a description of damage against which no foresight can guard, would be held to be included in the exception. The same reasoning applies to earthquakes, to hurricanes, and to unusually violent tem- pests. So it is probable that if goods of a perishable nature became deteriorated during the transit, from at- mospheric, or other physical causes against which a carrier could not be expected to provide; as if grain became mildewed, or disease showed itself in potatoes which had been consigned to the carrier in a sound condition; (b) Forward v. Pittard, 1 T. R. 33. AT COMMON LAW FOR LOSS OR DAMAGE OF GOODS. 75 although the fact of their damage would constitute a "prima facie liability in the carrier, it would be open to him to show that the damage arose from inevitable physical causes, and so to free himself from liability. But where the damage is caused by even an inevitable accident, which arises from human infirmity or oversight, and not merely from the exceptional or intrinsic irregularity of a natural law, the carrier will be liable. If it arise from a road being out of repair; from a bridge breaking down; from fire ; or from the violence of robbers or pirates ; all such accidents, although in many cases apparently in- evitable, are no defence for loss or damage in an action against a common carrier. The principle of the distinc- tion is clear. No human art nor ingenuity can foresee or avoid the instantaneous violence of lightning, earthquakes, or tempests. But a superlatively prudent carrier might, and, in point of law, ought to ascertain that a road is in repair ; that a bridge or a vehicle contains no latent de- fect ; and that the country, through which he passes, is free from robbers, or provided with a sufficient police. If he do not take the precaution of previously ascertaining these facts, there is nothing unreasonable in holding him liable for any damage which may arise from the omission ; and the premium and temptation to carriers to be careless and fraudulent towards their employers would be irresistible, if the occurrence of an accident, which might have been pre- vented by human agency, were held to contain its own justification or excuse. On this ground, if goods are burned accidentally at the end of the transit, but before delivery to the consignee, the carrier is held liable (c). But if the transit be prevented by the freezing up of a river or a canal ; this, according to the American law, is held to be an intervention of a divine or natural impediment, which will justify delay, non-delivery, and even loss(cO' (c) Hyde v. Trent and Mersey ^ {() Batson W.Donovan, supra; and P.; cf. Finnie v. Glasgow, &c. Corn- Brooke V. Pickwick, 4 Bing. 218; see pany, 2 Macq. H. of L. Cases, 177. AT COMMON LAW FOR LOSS OR DAMAGE OF GOODS. 87 said : " No authority has been cited to show that a carrier is entitled in everi/ case to know the nature and quaUty of the goods tendered to him to be carried .... but even if it be reasonable, under certain circumstances, that he should be informed of the contents of a parcel, the plea should have stated that there was a reason on this oc- casion requiring the information. It is not alleged in the plea that there was a reason. The plea is founded on a general proposition that, in the case of all goods, of what- soever nature or quality, sent to a common carrier, the person delivering them is bound to know and to be able to state, if required, their nature and quality. Now, I think, if that be so, the consequence would be so highly incon- venient that we should require authority to su])port it." Maule, J., said : " In order to sustain this plea, we must hold that, in all cases whatever, the carrier has a right to ask the person who brings the parcel what the contents are; and, if he is not informed, that he may refuse to carry it. There is no authority to support that. There are dicta of Best, C. J.; but I conceive there is nothing- amounting to an authority on the subject ; and it is a proposition which is untenable in its generality or rather universality, seeing the extent to which it would lead if this plea were a good one. In order to make it a good one, it ought to have alleged some ground why the defendants made that inquiry. If they do not suggest any, it must be considered that there is no special ground. Now, there is no doubt that if there is any deception or any improper package sent by the plaintiff, the defendants are not liable for a damage arising to it; but if there is any deception as to the value, the defendants are not hable. As to that, the defendants are competent to limit, and they do limit by their notice, their liability with respect to cer- tain valuable commodities ; and with respect to dangerous articles, there is provision made that they may examine the parcel if they think fit ; and whenever there is a good rea- son to suspect the contents, they may either insist on being informed of the nature of them, or, if the information is 88 EXTENT OF LIABILITY OF COMMON CARRIERS refused, they may say, ' then we must open it ourselves ;' or, 'we will not take it;' but it cannot be maintained that in all cases the carrier may require the person to give him a full description of every article in it" {n). It is to be observed, that this case involved no considera- tion of the Carriers' Act, but only of the common law du- ties of carriers, as regulated in the case of railways by the Railways Consolidation Act, 8 & 9 Vict. c. 20. By the 89th section of that act, railways electing to act as common carriers have co-extensive liabilities and rights ; but by the 105th section a penalty is imposed on any one tendering dangerous goods, such as vitriol, gunpowder, lucifer matches, &c., to be carried, without notice to the com- pany ; and railway companies are empowered " to refuse to take any parcel that they may suspect to contain goods of a dangerous nature, or require the same to be opened to ascertain the fact." No point was made in the above case that any such suspicion existed ; and the question, there- fore, was treated as an abstract inquiry into the common law right of a common carrier, to know the contents of a parcel tendered to him. It can hardly be said that the result is satisfactory; for while, on the one hand, it is clear from the language of the court, that a carrier has no universal nor general right to know the contents of a par- cel ; yet it seems also admitted that there may be, and are, cases in which such a right exists. The Chief Justice appears to have thought that there may be circumstances under which a carrier has a common law right to know the contents of a parcel before he is bound to receive it; but Mr. Justice Maule seems to have inclined to the opinion, that if an improper parcel be tendered to a carrier, or if he receive it under circumstances of deception; he cannot refuse to carry it because the consignor refuses to disclose the contents, but he will not be liable for damage arising to it. (n) See also Crouch d. Great Northern Railway, 9 Exch. 556 ; 23 L. J. 148, Exch. AT COMMON LAW FOR LOSS OR DAMAGE OF OGODgi. 89 It must, therefore, be considered to be still unsettled how far a carrier can legally refuse to carry goods, on the ground that the consignor refuses to disclose the contents. It is true that, under the Carriers' Act, the carrier can protect himself from liabiHty, loss, or damage, where the goods are of any of the kinds specified in the act, and above the value of lOZ. But where the goods are not of such de- scription, or under the value of 10/., the carrier's right to be informed of the contents of a parcel appears to be very doubtful. All that can be said with reasonable certainty is, that there are some undefined cases in which such a right may exist; but that generally it has no existence. It seems, however, reasonable and probable that, notwith- standing the 4th section of the Carriers' Act, which pre- vents a carrier from limiting his liability by notice ; a carrier refusing to carry dangerous goods, such as those specified in the above section of the Railways Consolidation Act, or other goods of a peculiarly perishable nature, would be held to have a good defence at common law ; and if they were delivered to him without notice of their danger- ous or perishable nature, the withholding of such notice would be evidence for a jury, in the event of loss, of an in- tention to deceive the carrier. It must be carefully borne in mind that these remarks apply only to cases which are not within the Carriers' Act. If the goods tendered to the carrier belong to any of the classes which are mentioned in the first section ; and, if the carrier have duly limited his liability by a public notice ac- cording to the act ; the carrier will be entitled to know the character and value of the contents before he can be required to carry the goods. When he has obtained this knowledge, he may refuse to carry until he has been paid the full price of carriage, as calculated according to the value of the goods. But, even in this case, he has no ab- solute right to know the contents of a package, nor to refuse to carry because the consignor refuses to disclose them. He may obtain information aliunde, and then refuse 90 EXTENT OF LIABILITY OF COMMON CARRIERS to carry unless full particulars are given by the consignor, sufficient to enable the carrier to calculate the amount of increased hire which he is entitled to demand beforehand ; but he will act thus, probably, at the risk of an action for refusing to carry if it should appear that he has been mis- informed, and that the goods are not within the statute. The prudent course in the majority of cases will be, to be satisfied with the statutory exemption from liability which he has generally, when valuable property above 1 0/. is in- trusted to him without notification of its value. Thus, when carriers gave notice that they would not be liable for " maps in packages," unless insured and paid for accord- ing to their value ; the defendants were held not hable, be- cause the plaintiff had not in the first instance disclosed the contents and paid for them accordingly ; and it was held, in this case, that the carrier might have refused alto- gether to carry, unless his increased charge were paid be- forehand (o). It will now be sufficiently apparent that a mere conceal- ment of the contents of a package ; or even the distinct refusal to reveal their nature, will not be enough to support a carrier's plea of fraud against a consignor. Such con- cealment will in certain cases, under the statute, relieve the carrier from liability for loss or damage, at least unless it be caused by his gross negligence {p) ; but, alone, it is no evi- dence of fraud. But if there be more than a bare conceal- ment; if there be any sort of misrepresentation or other attempt on the part of the consignor to mislead the carrier, such conduct will be evidence to support a plea of fraud. It has been said by Parke, B. : "I take it now to be perfectly well understood, according to the majority of opinions upon the subject, that if anything is delivered to a person to be carried, it is the duty of the person receiv- ing it to ask such questions about it as are necessary ; if he ask no questions, and there be no fraud to give the case (o) Parke, B., Wyld v. Pickford, (p) Wyld v. Pickford, supra. 8 M. & W. 413. AT COMMON LAW FOR LOSS OR DAMAGE OF GOODS. 91 a false complexion on the delivery of the parcel, he is bound to carry the parcel as it is. It is the duty of the person who receives it to ask questions ; if they are an- swered improperly, so as to deceive him, then there is no contract between the parties; it is a fraud which vitiates the contract altogether" (q). In Walker v. Jackson, the defendants, as proprietors of a ferry, had given public notice, by a placard, that they would not in anywise be re- sponsible for any loss or damage to carriages while being landed ; but there was no evidence that the plaintiff knew of the notice. The defendants conveyed his carriage, con- taining jewellery and watches, across the ferry; and some of these were damaged while they were being landed by the defendants. It was held, that their implied contract to carry safely was not waived or affected in any way by the fact of the plaintiff having said nothing about his property or its value ; and that as there was no evidence of a special contract, they were liable for negligence as carriers for hire. iq) Walker v. Jackson, 10 M. & W. 168. ( 92 ) CHAPTER VII. ON THE DUTIES OF CARRIERS, AS REGULATED BY SPECIAL CONTRACT, AND BY THE CARRIERS' ACT (1 WILL. 4, C. 68). In the preceding chapters the duties and Habilities of car- riers have been regarded from a common law point of view. In the present chapter they will be considered as subject to the limitations of special contracts between the carrier and his employer ; or as modified by an important and principal statute. Special contracts, between a carrier and an employer, form a kind of connecting link between the common law and statutory liabilities of carriers. Their gradual super- structure, on the simple basis of a common carrier's duties, by removing, or lessening his Hability as an insurer, became first, the means of converting him into an ordinary bailee for hire ; and then, by creating endless misunderstandings between him and his employer, as to the subsisting extent of his liability, rendered it necessary for the legislature to interfere, and provide an authoritative solution for the most pressing perplexities of the courts. Thus, until the Car- riers' Act became law, it was scarcely satisfactorily settled that even the deliberate act of sending goods by a carrier, with a full knowledge that his liability was restricted to a certain amount, raised a binding obligation in the sender not to require more than that amount in the event of da- mage. The Carriers' Act settled a long pending contro- versy, by defining the cases and the conditions under which a carrier might limit his liability by a public notice ; but it left the still more unsettled question of special con- tracts unaffected by its provisions ; and the result has been ON THE DUTIES OF CARRIERS, ETC, 93 a large amount of litigation on the construction of special contracts between a carrier and his employer, and the rules by which such contracts are to be interpreted. The 17 & 18 Vict. c. 31, has, to a certain extent, elucidated this diffi- culty in the cases of railways and canals; but, by so doing, and by omitting to make its provisions applicable to all regular carriers for hire, it has only created a distinction of classes, and declared that to be law, when the carriage is by railway or canal, which is not law when the carriage is by coach, waggon or cart, or on a navigable river. A transitional state of law is intelligible only when it is treated to some extent historically ; and a development of some doctrines, which have been already noticed, will con- duce to a clear comprehension of this portion of the subject. A special carrier for hire, who was no more than a mere bailee for hire, had always, and still has, an unlimited power of restricting his liability by the terms of an express con- tract with his employer, before receiving goods to be carried. In this way he might free himself from any, or all, of the duties and liabilities which, in the absence of such a con- tract, attach to him at common law. Similarly, common carriers have freed themselves, step by step, from their liabilities as insurers, and have placed themselves in the position of special carriers for hire. In fact, when a common carrier has relieved himself by ex- press contract from his responsibility as an insurer, he be- comes at once converted into a special carrier for hire, liable only for gross or culpable negligence (a), and not even for that, if he have contracted explicitly that he will not be hable for any kind of negligence {b). In both (a) Riley v. Home, 5 Bing. 220 ; nus v. Lancashire and Yorkshire Sleat V. Fagg, 5 B. & Aid. 342; Railway, 28 L. J. 353, Exch. Wright V. Snell, ib. 350; Birkett (b) Carr v. Lancashire and York- t). Willan, 2 B. & Aid. 356 ; Beech t). shire Railway, 7 Exch. 712; and Evans, 16 East, 244; White t;. Great infra, s. v. next case ; Hearn v. Lon- Western Railway Company, 2 C. B., don and South- Western Railway, 24 N. S. 7 ; 26 L. J. 158, C. P. ; M'Ma- L. J. 180, Exch. 94 ON THE DUTIES OF CARRIERS cases, whether the carrier is still to be called a common carrier or a special carrier for hire, the duties and rights become co-extensive, and he is required only to take rea- sonable care of the goods up to the time of delivery ; but the mere fact that such carriers do not insure, nor warrant the safe delivery of the goods, will not exonerate them from liability for gross or culpable negligence. Even when carriers are exempt from liability for goods above the value of 10/., under the Carriers' Act, they must still employ reasonable care. Thus where the plaintiff sued for the value of a portmanteau, which he had lost during his jour- ney in the railway train of the defendants ; and the latter relied upon the statutory exemption : Jervis, C. J., said : — ''The company received the plaintiff's portmanteau to be carried safely, although they did not warrant. The act of parliament would not justify them in throwing it overboard. There may still be a duty imposed on them to carry safely, notwithstanding they are not insurers" (c). This confusion, or identification of the two principal classes of carriers, has been caused by the operation of the principle that two contracting parties may introduce, into an implied or express contract, any conditions which are not illegal; and it must be admitted, that the theory of voluntary contracts would be violated, if it were to be held that a man is not to be bound by terms which he has ac- cepted deliberately. Accordingly, it is said that "the right of making such qualified acceptances by common carriers seems to have been asserted in early times. Lord Coke declares it in a note to Southcote's case (d), and it was ad- mitted in Morse v. Slue (e). It is now fully recognized and settled beyond any reasonable doubt, in England" (/). But it is clear, on principles already stated, that a com- (c) Marshall v. York and New- approved by Cresswell, J., in Austin castle and Berwick Railway, 11 C. i>. Manchester, &c. Railway, IOC. B. B. 665, n. 473 ; Nicholson v. Willan, 5 East, (d) 4 Rep. 84. 513; M'Andrew v. Electric Tele- (e) 1 Vent. 238. graph Company, 25 L. J. 26, C. P. (/) Story on Bailments, s. 549, AS REGULATED BY SPECIAL CONTRACT, ETC, 9o mon carrier cannot force a special contract on his employer; and that if the latter refuse to grant a limited liability, the carrier is bound to carry, on terms of unlimited liability, such goods as he is in the habit of carrying for the public, and for the carriage of which the employer tenders him reasonable hire. Thus, in Carr v. Lancashire and York- shire Railway(^), where the defendants relied upon a spe- cial contract to protect them against loss by gross negli- gence, Parke, B., said : " If the plaintiff had meant to make the defendants liable as common carriers, the course for him to take was to tender them the price for the carriage of the goods : and, on their refusal to carrv, to bring an action against them for not carrying, . . . The duty of a carrier binds him to carry those goods only which, ac- cording to his public profession, he is bound to do. That is established by Johnson v. The Midland Railway {h). But with the defendants in that character we have nothing to do, because this was the case of a special contract ; and we have nothing to do but to inquire into the meaning of it." Subject to these limitations, a common carrier may always be required to carry on the terms of his common law liability; and an action will lie against him for re- fusal (i). But if the sender waives his right, and enters into a special contract with the carrier, the only question will be, after the fact of the special contract has been proved, as to its terms and their construction. As these are now in many cases subject to the provisions of the Carriers' Act, we have arrived at the point where this statute may be fitly considered. THE carriers' ACT (1 WILL. 4, C. 68) [k). It has been already stated {I) that, prior to this Act, great difficulty had been experienced in fixing a sender of {g) 7 Exch. 707; 21 L, J. 2C3, (A-) See the whole Act in the Ap- Exch. pendix, (h) 4 Exch. 367. (0 Supra, p. 84. (i) Supra, p. 33. 96 ON THE DUTIES OF CARRIERS goods with such a knowledge of the pubhc notices by which carriers had long attempted to limit their liability, as would justify a jury, or a court, in implying an assent, on the part of the sender, to a special contract between him and the carrier, according to the terms of the notice. It was found that at one time the carrier was the sufferer by being held responsible for valuable property which had been intrusted to him without any accompanying commu- nication of its nature ; at another time, that an innocent sender was constructively fixed with a knowledge of a notice about which he had known really nothing. It was necessary to bring home a knowledge of the notice to him before he could be affected by it ; but as soon as this was done ; or, more frequently, as soon as a faint presumption of such knowledge could be attributed to the sender ; the jury was directed to find that a special contract existed between him and the carrier. To adjust the disturbed balance of natural equity in these respects, the Carriers' Act, 11 Geo. 4 & 1 Will. 4, c. 68, was passed. It de- clares substantially, in the 1st section, that no common carrier by land (m), for hire, shall be liable for the loss of, or injury to, various specified kinds of valuable property, when the value of such property shall exceed the value of 10/., unless, at the time of the delivery to the carrier or his agent, the value and nature of such property shall have been declared by the sender, and an increased charge paid, or agreed to be paid. The 2nd section permits carriers, in anticipation of parcels of the above value, to affix a notice, in legible characters, to some conspicuous part of their booking or receiving offices, stating the increased rate of charge re- quired to be paid over and above the ordinary rate of carriage, as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles ; and it is declared, that the senders of such valuable parcels shall be held bound by such notice, (w) Pianciani !;. London and South-Western Railway, 18 C. B. 226. AS REGULATED BY SPECIAL CONTRACT, ETC. 97 without further proof of the same having come to their knowledge. The 3rd section requires a carrier, after the value of such parcels has been declared, and the increased rate paid, or agreed to be paid, to sign a receipt, if required, for the parcel and the insurance ; and if either the receipt be not given when required, or the statutory notice not duly affixed, the carrier is to remain liable as at common law, and also to refund the increased rate or charge. The 4th section provides, that carriers are to remain liable, as before the act, for all parcels and other property, in respect whereof they may not be entitled to the benefit of the act ; any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding. The 5th section provides, that every office used by the carrier as a receiving house, shall be deemed to be such ; and that any one of several carriers, who are partners or joint proprietors, may be sued separately. The 6th section provides, that nothing in the act shall annul, or in anywise affect, any special contract between a common carrier and his employer. The 7th section provides, that, where a parcel has been duly delivered and paid for as a valuable parcel under the act, the owner may recover the amount of a loss or damage, including the increased charges for value and insurance. The 8th section provides, that, notwithstanding the act, the carrier shall not be exempt from liability for loss or damage caused by the felonious or tortious acts of his agent. The 9th section provides, that the carrier shall only be liable for the amount of damage actually proved. The 10th section enables carriers, in actions against them, to pay money into court as in ordinary actions. The 11th section declares, that the act shall be public, and judicially noticed. The object of this act was, briefly, to relieve a certain H 98 ON THE DUTIES OF CARRIERS class of common carriers, namely, land carriers, from a liability for the loss or damage of the valuable articles spe- cified in it ; provided that senders, affected with the statu- tory notice, did not choose to state their nature and value, and pay a proportionably increased charge as an insurance through the transit. If such notice be not given, or if the carrier do not give a proper receipt for the increased charge, or comply strictly with all the statutory require- ments, his liability is to remain as at common law ; and it is to remain so in all cases where the property is not above the value of lOZ. ; or where it does not come within some one of the classes of valuable property named in the act. Its result is, that where the carrier complies with the terms of the act, and the sender does not so comply, there is, notwithstanding, a statutory special contract created between the sender and the carrier, by which the latter is wholly exempted from liability to make good any loss or damage which the goods may sustain during the transit. But if the carrier fail to comply with the statute; or if the goods be not within the statute; or under the value of lOZ. ; he remains liable as at common law. If both sender and carrier comply with the statute, the payment of the increased charge replaces the carrier in his common law position as an insurer; and the sender recovers all his common law rights against him (m). It is to be observed, that the sixth section of the act expressly provides, that " nothing in the act shall annul or in anywise affect any special contract" between the carrier and his employer; and therefore, as before the act, it is held competent to the parties to modify the terms of the carrier's duty and liabilities in any legal manner, and to any legal extent, which they may choose to adopt. The result has been, that carriers have seldom consented to carry, during late years, without having either required or induced the sender to sign, or otherwise accept, a special (m) Cf. the judgment of Erie, J., shire Railway, Sc. Cam., 4 H. & N. inM'Manuso. Lancashire and York- 327 ; 28 L. J. 354, Exch. AS REGULATED BY SPECIAL CONTRACT, ETC. 99 contract, by which the undertaking and hability of the carrier are defined and Hmited at the will of the latter. The majority of the late cases on the law of carriers in- volve only questions as to the particular construction of the terms of such contracts ; but some general rules may be extracted from their specialities. But it may first be observed that, although the sixth section of the act left special contracts unaffected by its provisions, the fourth section absolutely put an end to one description of contract, which, up to that time, had been the most common form of special contract. That section pro- vides that, from and after the passing of the act, no public notice or declaration heretofore made, or hereafter to be made, shall be deemed or construed to limit, or in anywise affect, the liability at common law of any common carrier, for or in respect of any articles or goods to be car- ried and conveyed by him ; but that all such common carriers shall be liable, as at common law, to answer for the loss or injury to any articles and goods in respect whereof they may not be entitled to the benefit of the act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, not- withstanding. The effect of this section is, that a carrier can no longer, in any case, limit his liability as before the act(w), by showing that he has publicly notified or advertised his limitation of liability; and that the sender, at the time of delivery, knew of such notice. " The fourth section puts an end to the imperfect and vexatious mode to which carriers had recourse of placing notices in their offices, and the knowledge of which it was often very difficult to bring home to individuals (o);" and it is, therefore, no longer competent to a jury to find that a special contract, according to the terms of the notice, exists between the (n) Mayhew v. Eames, 3 B. & C. (o) Coleridge, J., Walker v. York 601. and North Midland Railway, 2 Ell. & Bl. 750; 23 L. J. 73, Q. B. h2 100 ON THE DUTIES OF CARRIEKS parties, notwithstanding that it is found that the goods were sent with a knowledge of such notice. The act renders such a pubUc notice wholly inoperative as the basis of a special contract (p). Where the carrier has affixed the statutory notice, the sender will be bound by it, even though he have delivered the goods without any opportunity of seeing it. In Baxen- dale V. Hart (rj), the plaintiff sent to the defendant's office to request him to call for goods; and the defendant ac- cordingly sent and received them at the plaintiff's resi- dence. No communication was made as to their nature or value ; and no increased charge, according to the value, was paid or tendered by the plaintiff. They were lost during the transit; and Pollock, C. B., after taking the opinion of the Court of Exchequer, ruled that, as the package was not delivered at the defendant's office, the defendants could not claim the benefit of the statute. But it was held, on error, that this ruling was incorrect ; and that the carrier, having complied with the statute, was exempt from liability. Patteson, J., in delivering the judg- ment of the court, said : " We think the fair meaning of the statute, and in accordance with the first object of the legislature, is, that all persons who send goods of the par- ticular description exceeding lOZ. in value (they being the persons who know whether they are such goods or not, and the package not being open and its contents unknown to the carrier), whenever they deliver them to the carrier, are bound to give information of the nature and value of the articles, whether they are delivered at the office of the carrier, at the sender's house, on the road, or anywhere else ; and the rest of the clauses of the act follow after, with certain provisions as to what is then to be done. Then it is that the carrier is entitled to have and to de- mand a larger charge, which is in the nature of a premium (p) Coleridge, J., Walker v. York (q) Sc. Cam. C Exch. 769 1 21 L.J. and North Midland Railway Com- 123, Exch. pany, 2 Ell. & Bl. 750. A8 REGULATED BV SPECIAL CONTRACT, ETC. lOl for insurance : he cannot, indeed, have a larger charge (or if it be not paid, save himself from responsibility), merely by saying that he must have such and such a sum of money, varying in cases of different persons ; but he must have a tariff or notice, stuck up in his office, of the sums which he means to charge above the usual charge for carriage for the different articles, to all the world who send articles of that kind. No doubt, therefore, it is made necessary by the second section that he should put a notice or tariff in his office ; but then it must be observed that that notice .... assumes that the act of parliament has made it necessary for the sender to state the contents and the nature and value of the articles in the first in- stance; and the tariff is only to notify to persons what is the extra charge the carrier intends to make in such case. . . . . The real point is, who is to take the first step ? We think that the act of parliament requires the person who sends the goods to take the first step, by giving that information to the carrier which he alone can give ; and that if the sender does not take that first step, then he cannot maintain this action by the force of the first section of the act of parliament, which says expressly that the carrier shall not be liable unless the declaration is made. Such declaration, when made, will lead to other conse- quences : the carrier will know what he is to have ac- cording to the tariff which he has stuck up in his office : if that sum is paid and the goods are lost, then of course he would be liable; on the other hand, if he I'efuses to give a receipt, as provided by the statute, or has omitted to comply with any provision of that kind on his part to be performed, he would lose the protection given by the act; but in no case can the sender recover unless he has taken the first step, by giving the information which the legis- lature intended he should give, as we think, in the very first instance." On the other hand, when the sender de- clares the extra value, and no actual demand is made on him by the carrier for the increased charge, the carrier 102 ON THE DUTIES OF CARRIERS remains liable as at common law. Thus, where the plain- tiff called at the office of the defendants, where a statutory notice was duly affixed, and requested the defendants to send for a valuable painting, to be carried by the defend- ants from London to Newcastle; the defendants sent their van, and the man in charge of it received from the plaintiff the painting, and signed a receipt for it, in which it was declared to be of the value of 110/. ; but the man in charge neither demanded, nor did the plaintiff tender, the increased charge: the defendants were held to be liable as insurers. The Judges relied on Baxendale v. Hart, and Wilde, B., pointed out the usual steps in such cases and their consequences. " The sender must first declare the value of the parcel; then the carrier must demand the extra rate, which the sender either pays and is insured, or refuses to pay and insures himself; and then the carrier takes the parcel (r)." In the argument on this case it had been suggested, that where goods are collected by van, the notice ought to be affixed to the van; but it was intimated by Wilde, B., that this was unnecessary, in order to entitle the carrier to the benefit of the statute ; although his Lordship suggested that it might be a prudent course for carriers to affix such a notice to their vans. The above case and judgment are important as an illus- tration of the principles by which the Carriers' Act is interpreted. It has also been decided recently, that " the non-liability for ' loss of or injury to' goods, which a carrier may be entitled to claim under the statute, does not extend to cases where the plaintiff complains of a pecuniary ' loss,' arising from a detention of goods or delay in delivering them, but only to cases in which the article itself is either lost, or abstracted, or injured. The statute enacts, * that no carrier shall be liable for the loss of, or any injury to, any of the enumerated articles.' This does not mean the loss of the moneys of the carrier, but the (r) Behrens v. Great Northern Railway, 3 L. T. Rep., N. S. 863 ; 30 L. J. 153, Exch. AS REGULATED BY SPECIAL CONTRACT, ETC. 103 loss of the article itself, or injury to it. In ordinary par- lance, this appears to mean the loss by the carrier of articles committed to him, or any injury to them whilst in his care; not the loss sustained by the owners by non- delivery of the article in due time or altogether, or the loss of the article by him. By the term ' injury' is com- monly meant injury to the article itself. Then, although the use of the term * loss' in the preamble does not aid the construction of the enactment, the recital of this clause does. It recites, that valuable property and articles of great value and small compass were liable to depredation, and the reason of the law must be considered as being to protect the carrier, not in all cases where the owner of the article suffers or sustains damage from the neglect of the carrier to cany ; but in cases of a similar nature to those recited, where the chattel is either abstracted, or otherwise lost from the personal care, or from the place where it ought to be, and by reason of such loss is incapable of being delivered at the time that it ought to be. We think that this is the true construction of the clause ; and the carrier is wholly exempted from being responsible for a loss by him of the particular article named, if there should be such a loss (s)." There appears to be no doubt that, as before the statute, and according to the language of the court in Clayton v. Hunt {t), " the notice in the office ought to be in such large characters, that no person delivering goods there can fail to read it without gross neghgence." But Baxendale v. Hart has apparently overruled the statement of the court in the former case, " that if a carrier's servant receives goods at a distance from the office, the special terms on which he deals ought to be communicated through some other medium." It is rather singular that this dictum and case do not appear to have been mentioned in Baxendale v. Hart ; but it is clear, from that case, that the sender of goods (s) Parke, B., in delivering the 2i L. J. 180, Exch. ; and supra, judgment of the court in Hearn v. p. 82. London and South-Western Railway, (<) 3 Camp. 27. 104 ON THE DUTIES OF CARRIERS must, in the first instance, take cognizance of the notice, if duly affixed, at his peril. But such a notice will apparently be still unavailing, if it be placed in some inaccessible or remote part of the office where it is not likely to be seen by the public; or, if it be defaced, printed in small type, or otherwise illegible, or difficult to read (u). The act applies only to public notices, and does not in any way affect the validity of a special contract, according to the terms of a notice which is delivered to the sender or his agent personally, before the carrier accepts the goods. The delivery of such a notice does not, it is said, neces- sarily create a contract between the parties ; but it is evi- dence from which a jury may and ought to infer the exist- ence of a contract according to the terms of the notice. This doctrine was very fully considered in Walker v. York and North Midland Railway Company (x). There the defendants were common carriers, who had sent round notices to various fishmongers, that they would only carry fish on certain terms therein specified. Such a notice had been served on the plaintiff some time previously to his delivery of fish to the defendants ; but after he had re- ceived it, he had expressly declared to the defendants that he did not hold it to be binding on him. Subsequently he sent fish to be carried by the defendants, which incurred damage, for which the defendants would have been liable at common law, but for which they contended that they were irresponsible on the express terms of the notice. Coleridge, J., left it to the jury to say, first, whether the notice had been served on the plaintiff; secondly, whether a special contract existed between the plaintiff and the company, that the fish should be carried on the terms stated in the notice; and he directed them that, if the plaintifi' had been served with the notice, and afterwards sent the fish by the company's railway, they ought to infer an agreement on the plaintiff's part to the terms, unless there was shown an unambiguous refusal by the plaintiff to (u) Butler v. Ilearne, 2 Camp. 415. (x) 2 El!. & Bl. 750 i cf. infra, p. 107. AS REGULATED BY SPECIAL CONTRACT, ETC. 105 be bound, and an acquiescence in that refusal on the part of the company. The jury found for the defendants, and the court discharged a rule which had been granted for a new trial on the ground of misdirection. Lord Campbell, C. J., said: " It is contended that, since the Carriers' Act, by giving notice in this case, there can be no special con- tract between the carrier and the owner of the goods. But I think the act has no such intention or operation. A carrier may still enter into a special contract for the carriage of goods ; and what we are to consider here is, whether or not there is any special contract between the parties. The declaration alleges a common law liability. The second plea denies that the goods were received upon the terms alleged; and the third plea sets up a special contract. Then is there any evidence to show that the goods were not received, except upon the terms of the special contract set out ? I think there is, because it ap- pears, and the jury have found, that notice, limiting the liability of the defendants as carriers, was delivered to the plaintiff; and afterwards he delivered the goods to be car- ried by the defendants. I think that was evidence from which the jury were at liberty to infer a special contract, contrary to the common law liability of the defendants ; and that the case was correctly left to the jury. The learned Judge did not tell the jury that of necessity the evidence showed a special contract. That would liave been contrary to Crouch v. London and North- Western Railway {y); but he left it to the jury to infer an agree- ment between the parties from the service of the notice, and the subsequent sending of the goods. I think that was properly left to the jury ; and that they were justified in finding that, by sending the goods after he had been served with the notice, he had acquiesced, and that a spe- cial contract was thereby made between the plaintiff and the company ; although I do not say the jury were bound in point of law to come to that conclusion." On the {y) 2 Car. & Kir. 789. 106 ON THE DUTIES OF CARRIERS general effect of the section, Wightman, J., said: "The section refers to public general notices which are stuck up in the offices of carriers, or otherwise publicly given ; and not to notices served personally on individual dealers who are in the habit of sending goods by the carrier." It is clear, therefore, from this case, that not only may special contracts, since the act, be made wath common carriers as before the act, subject to the exception that such contracts cannot be implied from the sender's actual or constructive knowledge of a public notice ; but that such contracts may be made by the carrier delivering to the person, from whom he receives the goods, a ticket, or written or printed notice, containing a statement of the terms on which he consents to carry ; and that when this notice has been accepted by the sender there is, not neces- sarily a binding contract, but still evidence from which a jury ought to infer the existence of a contract in the terms of the notice (z). If an owner send goods after receiving such a notice, without distinctly repudiating it, he will be held to have acquiesced in its terms ; and it would even seem that, even after such a repudiation of the notice, he will be held to have acquiesced in its terms, if he persist in sending the goods. If, therefore, he object to the terms, his proper course will be, after tendering the goods with sufficient hire to be carried on the terms of the common law, to withdraw the goods, and to sue the carrier for a breach of his public duty if the goods be such as he is bound to carry in the ordinary course of his business (a). It was decided in Walker v. North Midland Railway, that a notice is not void, as a public notice under the fourth section of the Carriers' Act, merely because it is in the nature of a circular, provided a sender be proved to have received it ; and it had been decided previously that a ticket, containing a printed limitation of the carrier's liability, if personally served, is not a public notice, but a (s) Cf. the judgment of Erie, J., shire Railway, 28 L. J. 353, Excb. in M'Manusr. Lancashire and York- (a) Supra, p. 95. AS REGULATED BY SPECIAL CONTRACT, ETC. 107 good notice within the act {b). In that case the action was for damage to a horse ; and the defence a special notice of limited liability signed by the plaintiff. Cole- ridge, J., thus stated the substantial facts and law of the case : " The plaintiff comes with his horse to the station, pays for the carriage of it, and the clerk produces the ticket — whether the plaintiff signs it or not is immaterial — if he agrees to the terms set forth in it, he is bound by them." Erie, J., then stated the different modes in which such a special contract may be created : " Whether the plaintiff had signed the paper, or whether the clerk had mentioned the terms, or whether the latter had delivered to the plaintiff a ticket saying what the terms were, there would have been in each case good evidence of an agree- ment between the parties." Accordingly, a simple delivery of the notice to the sender, at the time when the goods are accepted by the carrier, is sufficient to fix the former constructively with a knowledge of the contents of the notice, and consequently with the acceptance of a special contract, without any proof neces- sarily that the notice was read over, or its contents or purport explained to him (c). It has even been held by the Court of Common Pleas that, where it is clearly proved that the ticket or notice has been delivered to the sender by the carrier before he accepts the goods, a jury ought not to be told to consider whether the carrier received the goods as a common carrier, or under the special contract in the ticket; but that they should be told that there was either a special contract, or no contract at all (d). It will be remarked that there is a fine shade of dis- tinction, and an apparent conflict, between the view of the Court of Common Pleas and that of the Court of Queen's Bench on this question. The latter court, in Walker v. (6) Great Northern Railway v. (d) York, Newcastle and Berwick Morville, 21 L.J. 319, Q. B. Railway v. Crisp, 14 C. B. 527; 23 (c) Slim V. Great Northern Rail- L,J. 125, C. P. ; s. v. supra, p. 104. way,14C.B.647! 23 L.J. 166, C. P. 108 ON THE DUTIES OF CARRIERS York and Midland Railway, evidently held that, even when a sender is fixed with the personal acceptance of a notice of limited liability, it is still a question of evidence for a jury whether the acceptance of, or acquiescence in, its terms constitutes a special contract, such as will bind the sender. Lord Campbell there said distinctly that evidence of such a delivery did not of necessity show a special contract, but it was properly inferred from the sender's acquiescence in such notice ; " although," his Lordship added, " I do not say that the jury were bound in point of law to come to that conclusion." On the other hand, in a substantially similar case, the Court of Common Pleas held, that, where goods are delivered to a carrier by a sender who has been previously served with a notice, these facts constituted, not merely presumptive, but conclusive, evidence of a special contract between the parties ; and that the jury are not only ^^ justified,'' as Lord Campbell stated, but bound to find that there was either a special contract of carriage, or no contract at all. The Queen's Bench therefore hold the existence of a special contract in such circumstances to be a question for a jury. The Common Pleas apparently hold it to be for the decision of a Judge ; although, when an option is left to the jury of saying that there was no contract at all, it is virtually left to them to say whether there is a special contract. In this point of view the two last cases may be reconciled ; and both may be held to agree that where there is any contract, in such a case it is a special contract ; but the Court of Queen's Bench appears to hold the contract to be special on the finding of the jury ; and the Court of Common Pleas to treat it as manifestly special, if there be any contract at all, on the terms of the notice (e). In Shaw v. York and North Midland Railway Com- pany {f) the defendants were charged, as owners and pro- prietors of a railway, with the breach of a contract to carry (e) See also Hughes c. Great (/) 13 Q. B. 347; IS L. J. 181, Western Railway, 14 C. B. 637 ; 23 Q. B, L. J. 153, C. P. AS REGULATED BY SPECIAL CONTRACT, ETC. 109 a horse of the plaintiff safely and securely. The defendants pleaded that they received the horse subject to a contract that they should not be responsible for any injury or damage, however caused, to the horse while travelling. It appeared that the horse was killed during the transit, owing to a defect in the horse-box, which the plaintiff had pointed out to a servant of the defendants before delivering the horse, but in which he had acquiesced, on an assurance from the servant that the box was quite safe. The plaintiff then left the horse in the box, paid the clerk of the booking- office for the conveyance, and at the same time received a ticket with the following memorandum from him : — " N.B. — This ticket is issued subject to the owner's undertaking all risks of conveyance whatsoever, as the company will not be responsible for any injury or damage (however caused) occurring to horses or carriages while travelhng, or in loading or unloading." The court held it " to be clear that the terms contained in the ticket given to the plaintiff, at the time the horse was received, formed part of the contract for the carriage of the horse between the plaintiff and the defendants ; and that the allegation in the declaration, that the defendants received the horse to be carried safely and securely by them, which would throw the risk of conveyance upon the de- fendants, is disproved by the memorandum; and the alleged duty of the defendants safely and securely to carry and convey the horse would not arise upon such a con- tract." In Austin v. Manchester, Sheffield and Lincolnshire Railway {g), the facts were substantially the same ; and a similar ticket, rather more comprehensive in its terms, was delivered to the sender and signed by him. The case turned chiefly on the sufficiency of the declaration, which did not clearly charge the defendants either as common carriers, or as carriers under a special contract. But it was held that, whether the j^laintiff relied on an implied common {g) 16 Q. B. 600; 20 L. J. 440, Q. B. 110 ON THE DUTIES OF CARRIERS law contract or on a special contract, the liability of the defendants was wholly disproved by the express terms of the ticket. Chippendale v. Lancashire and Yorkshire Railway Com- pany (/<) is a similar case, and still more extensive in its doctrine. There the plaintiff signed a receipt for his cattle, with a memorandum appended, similar to that which was delivered in Shaw v. York and North Midland Railway Company (i). The jury found substantially that the cattle were damaged during the transit by the gross negligence of the defendants ; but the court held that the owner could not maintain an action, and that the defendants were fully protected by the notice. These cases, so far as they apply to railway and canal carriers, would now be subject to 17 &; 18 Vict. c. 31, s. 7, by which such companies cannot rely on a special contract with the customer to limit their liability unless he have signed the contract. Hence it appears that such notices as those which have been just cited, when accepted as special contracts, relieve the carrier from liability even for his gross or wilful negligence, provided, apparently, that it is not found to amount to actual fraud. Such is the manifest result of Carr v. Lancashire and Yorkshire Railway Company (k). There the ticket was like that in Shaw v. York and North Midland Railway (Z) ; and the plaintiff's horse was found to have been damaged by the gross negligence of the de- fendants in managing their train. The court expressly noticed this fact ; but held, notwithstanding, that the de- fendants were not liable, as the plaintiff must be held, on the terms of the notice, to have exonerated them even from the consequences of their gross negligence. Alderson, B., said : " The defendants in this case undertook to carry the goods in question on certain terms. The question then is, what are those terms ? It is clear that they are such Qi) 15 Jur. 1106; 21 L. J. 22, (A) 7 Exch. 707; 21 L. J. 261, Q. B. Exch. (i) Supra, p. 108. (/) Supra, p. 108. AS REGULATED BY SPECIAL CONTRACT, ETC. Ill as the defendants might lawfully make. It is plain to me that they undertook to carry the horse at the risk of the plaintiff. The words are, " the owners undertaking all risk of conveyance whatsoever." Now, under those terms, a question might be raised whether the injury contemplated was such as must issue in injury to the thing conveyed; so that a doubt might arise whether the case of the horse being stolen was contemplated, as, under such circum- stances, the accident would not issue in damage to the horse. But that question would not arise here, as in this case the horse itself has been injured. The result is, that if there has been gross negligence on the part of the defendants, they are protected against liability by virtue of the words of the contract." In this view, as to the non- liability of the carrier, notwithstanding his gross negligence, Parke and Martin, BB., concurred. Piatt, B., appears to have acquiesced, with a strong opinion, notwithstanding, that the carrier was liable. It is to be observed, also, that Alderson, B., appears to have thought that the carrier would not have been exempt if the horse had been stolen ; or lost by any accident which did not " issue in damage to the horse (m)." Where a carrier relies on a special contract, he must clearly prove it : and it will not be sufficient to show that a sender had a mere constructive knowledge of a public notice, authorized in a particular case, as where a railway company had power to make bye-laws (n). It appears to follow from this case that a sender, in the absence of a special contract, is not bound by any usage or practice of carriers at variance with their common law liabilities and duties : at least unless he delivers the goods with a know- ledge of such usage or practice (o). In the last cited case, the common law duty of a carrier to deliver goods within a reasonable time was held to have been superseded by a special contract between him and the sender, by which it (m) See next chapter. 197, C. P. (») Great "Western Railway v. (o) Hughesr.GreatWesternRail- Goodman, 12 C. B. 313 ; 21 L. J. way Company, 23 L. J. 153, C. P. 112 ON THE DUTIES OF CARRIERS was declared that the carrier was "not to be held re- sponsible for the carriage or delivery within any certain or definite time." To the same effect are White v. Great Western Railway Company (p), and Phillips v. Edwards (q). So, where an Electric Telegraph Company expressly stipulated, that they would not undertake to transmit correctly messages which were not repeated back to the station from which they were sent : they were held to be free from liability as common carriers (r). On the other hand, where a carrier has contracted ex- pressly to deliver within a specified time, it will be no excuse that he was prevented from delivering by virtually uncontrollable circumstances. Thus, in Great Northern Railway v. Hawcroft, the passenger had taken an ex- cursion ticket from A. to B., by which the railway com- pany contracted expressly to return him to A. by any one of certain trains within fourteen days. The passenger presented himself duly at the station within the time, and claimed to be allowed to return by a certain one of the specified trains ; but in consequence of a large influx of passengers, the company were unable, as they stated, from an insufficiency of carriages to take him. They refused to take him by an ordinary train, and kept him waiting until the next excursion train started. The railway company were held to be liable for the damage arising to the pas- senger from the detention (5). So, where a carrier adver- tises a vehicle to start at a particular time, and no such vehicle goes, he is liable to any one of the public for a breach of contract, and also in an action for false repre- sentation (t). A carrier will be bound by any special terms to which (p) 2 C. B., N. S. 7 ; 26 L. J. 158, L. J. 26, C. P. C.P. («) 21 L.J. 178, Q.B. (q) 4 H. & N. 813; 28 L. J. 52, (t) Denton u. Great Northern Rail- Exch. way, 5 El. & Bl. 860 ; 25 L. J. 129, (r) M'Andrew v. Electric Tele- Q. B. ; of. Warlow v. Harrison, 29 graph Company, 17 C B. 3; 25 L. J. 14, Q. B. AS REGULATED BY SPECIAL CONTRACT, ETC. 113 he has assented in contracting with his employer. Thus, " where an order is given, previously to the delivery of goods, to a bailee, carrier or other person, to deal with them, when delivered in a particular manner, to which he assents ; and afterwards the goods are accordingly delivered to him ; a duty arises on his part, upon the receipt of the goods, to deal with them according to the order previously given and assented to ; and the law infers an implied pro- mise by him to perform such duty" (m). So, " if a person goes to the office of a carrier and asks what a thing will be done for ; and he is told by a clerk or servant, who is transacting the business there, that it can be done for a certain sum, the master can charge no more" {x). In that case the plaintiff was told at the office by a clerk what the charge would be. The clerk exceeded his authority in stating the amount ; but the master was held bound. Where a special contract exists, and either party refuses to fulfil it, an action will he for the breach before the expiration of the time within which it was to be fulfilled ; and as soon as the contract has been formally repudiated in such a way as to exclude the presumption that the party repudiating it intended to reserve for himself a locus poenitentics(7/). But no action will lie if such a contract be unilateral. Thus, where a carrier agreed to carry all such goods as should be presented to him for that purpose by the defendants ; and to perform all business for them in a prompt and expeditious manner at a fixed charge for twelve months ; and it was mutually agreed that this contract should remain in force during that time ; it was held, that this contract was unilateral; that it did not compel the defendants to present any goods to be carried ; and that no action lay against the defendants for not pre- senting, nor for formally announcing, to the plaintiff that (u) Per Park, J., in delivering v. Parkington, 2 C. & P. 599. the judgment of the court in Streeter (y) Hochster v. Latour, 2 E. & B. t). Horlock, 7 Moore, 287. 678; Cutter v. Powell, 2 Smith's (x) Lord Tcnterden, in Wingfield Lead. Cas. 1, and notes. I 114 ON THE DUTIES OF CARRIERS the arrangement was to cease from a day certain within the year(cr). In applying the law, which has been discussed in this chapter, to the cases of either railway or canal carriers, it must be remembered, that now no special contract w ith any such carriers is binding on any consignor of animals, or goods of any kind, unless the contract be signed by the consignor or the party delivering the goods to the carriers (17 & 18 Vict. c. 31, s. 7); and that such carriers cannot exempt themselves even by express contract from liability for the negligence of themselves or their servants, although in other respects they may make such conditions for re- ceiving, forwarding, or delivering goods as a superior court of law, or a judge of such court, may think reasonable. This subject will be considered in a later chapter. In concluding the consideration of the Carriers' Act, it may be convenient to append a complete and alphabetical list of the articles to which the act, solely and exclusively, applies : — Bank-notes of the United Kingdom. Bills of exchange. China. Clocks. Coin — gold or silver of any country. Deeds, Title. Engravings. Furs. * Glass. Gold — coin; manufactured or unmanufactured plate, or plated articles. Jewellery. Lace. Maps. Money — gold or silver, notes, bills, orders, securities for money. («) Burton v. Great Northern Railway, 9 Exch. 507. 4 i AS REGULATED BY SPECIAL CONTRACT, ETC. 115 Notes — of any bank in the United Kingdom. Orders for payment of money. Paintings. Pictures. Plate or plated articles, gold or silver. Precious stones. Promissory notes. Securities for payment of money. Silks — in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials. Silver — coin and plate, or plated articles. Stamps. Stones (precious.) Time-pieces of any description. Title-deeds. Trinkets. Watches. Writings. The act applies exclusively to the above articles, and to them only when the value of the article, or of any number of articles of any one class, or of any aggregate number of such articles comprised in one or more of such classes, exceeds the sum of 10^. It applies then to relieve the car- rier wholly from liability unless he have omitted to comply with the provisions of the act ; or unless the employer or sender have entirely complied with all of them. If the carrier have omitted to comply with any of the provisions; or if the employer have complied with them ; the liability of the carrier remains as at common law. The duty of the employer is contained in the first section of the act ; the duty of the carrier in the second and third sections ; and the fourth abolishes all but statutory public notices. The following cases have arisen under the act affecting the description of property to which it applies. i2 IIG ON THE DUTIES OF CARRIERS Furs — Hats. In Mayhew v. Nelson («), the carrier was charged with a loss of a number of hats, which were stated by a witness to be made half of sheep's wool and half of rabbit's wool. Another witness stated that they were made of felt. It was contended for the defendant, that this evidence ex- empted the carrier, by bringing the hats within the statu- tory definition of " furs." Tindal, C. J., thought that the statute referred to articles " made entirely of fur, and not to articles in which there is only a portion of fur;" but he left it to the jury to say whether the hats were made of fur or not; and they found that they were made of wool. Glass. In Owen v. Burnett (h), a case containing a looking- glass above the value of lOZ. was sent to the carrier's office, with the following notices on the case : — " Plate glass," " looking-glass," " keep this edge upwards ;" but the value was not declared, nor any increased charge paid. The glass was broken during the transit, and the carrier was held not liable. Jewellery. In Smith v. London and Brighton Railway Company (c), to a declaration for the loss of jewellery and other valu- ables, the defendants pleaded that the goods in question were articles above the aggregate value of 10^; and that they consisted of " some or one of such descriptions" as those specified in the act. This plea was held to be ar- gumentative, and bad, on special demurrer, for uncertainty. Prints and Ertgravings. In Boys v. Pink {d), pictures were held to be within the act. (a) 6 C. & P. 58. (c) 7 C. B. 782 ; cf. infra, "Trin- (6) 4 Tyr. 133; infra, p. 117. kets," p. 117. (rf) 8 C. & P. 361. AS REGULATED BY SPECIAL CONTRACT, ETC. 117 Security for Money — Writings — Bill of Exchange. A security for money, to be within the act, must be of the intrinsic value of more than 10/., when it is de- livered to the carrier. Therefore, an imperfect bill of ex- change for more than 10/. accepted by A., and intended to be filled up with B.'s name as drawer, but which was lost before it was so filled up, was held not to be a security for money above the value of 10/. (/). Silks — Trinkets. In Davey v. Mason {g), Lord Abinger, C. B., held, that " silk dresses made up for wear, clearly do not come within the meaning of the enactment; nor can a gold chain, used as an eye-glass, be considered as a trinket." But the ruling of Lord Abinger in this case has been questioned, and virtually overruled, by Bernstein v. Baxendale (A), where the statute was held to apply to a silk guard, and, as it seems, to every kind of unmanufactured or manufactured silk, such as a silk dress. So it would seem from this case that a gold chain, such as was denied to be a trinket in Davey v. Mason, would be held now to be within the sta- tutory description ; and that generally an article whose primary object is ornament, does not cease to be a "trin- ket," because some utility is superadded to it. Hence shirt pins, ivory bracelets, gilt rings, brooches, tortoise shell and pearl portmonnaies, and German silver boxes were held in this case to be " trinkets :" and glass smelling- bottles and flagons were held to be either " trinkets," or to be comprised under the statutory description of " glass." But a plain German silver box for holding fusees was held not to be a " trinket." In Butt V. Great Western Railway (^), a truss of silk was assumed to be within the act. (/) Stoessger v. South-Eastern {h) 28 L. J. 2C5, C. P. ; 5 Jur. •Railway, 3 El. & Bl. 549; 23 L. J. 105(5. 293, Q. B. (0 11 C. B. 140; 20 L. J. 241, ig) C. & M. 50. C. P. 118 ox THE DUTIES OF CARRIERS Writings — Certificate. In Syms v. Cliaplin(/i), the carrier was charged with the loss of a bankrupt's certificate ; and the plea averred un- communicated value above lOZ. But it was found that the value had been communicated, and the plaintiff had a ver- dict (/). Communication of value. The sender of goods is bound by the act to take cog- nizance of the carrier's statutory notice ; and in order to attach a liabihty to the carrier for the loss or damage of goods above the value of 10/., at least where the damage is caused by a want of ordinary dihgence in the carrier, the sender must make an express formal declaration of the value of the goods, and pay or tender the increased charges according to the rate contained in the statutory notice {m). It appeared in that case, that the carrier's agent had a general impression as to the value of the goods, and did not insist on, nor require any express declaration ; but it was held by Lord Denman, that the plaintiff, not- withstanding, was bound to have made it. So, in Owen v. Burnett («), the carrier had affixed the statutory notice, and the plaintiff sought to recover for the fracture of a plate looking-glass above 10/. in value. The plaintiff, when he delivered it, neither communicated nor was asked to communicate its value. The jury found, not gross negligence, but negligence in the defendant, and gave a verdict for the plaintiff; but the court held that, as the plaintiff had not declared the value, the defendant was not liable. The court also overruled an attempt to restrict the statute, according to the words in the preamble, "to articles of great value in small compass ;" and held that the " terms of the first section are general, and include {k) 5 Ad. & Ell. 634. {m) Boys v. Pink, 8 C. & P. 361 j (i)Cf.Hearnt). London and South- cf. supra, Behrens ©.Great Northern ■Western Railway, 24 L. J. 180, Railway, p. 102. Exch.i 1 Jur. N. S. 236, and infra. (n) 4 Tyr. 133. AS REGULATED BY SPECIAL CONTRACT, ETC. 119 everything" classed under any one of the species, whether large or small. It has been questioned, and appears to be still uncertain, whether the Carriers' Act is limited to inland carriage in England ; or whether it extends to a terminus beyond the realm, as to Jersey or Ireland. But where the terminus is beyond the realm it is clear that the carrier may limit his liability, under the statute, as to that portion of the transit which is within the realm (o). (o) Pianciani v. London and South- Western Railway, 18 C. B. 226. ( 120 ) CHAPTER VIII. ON THE LIABILITY OF CARRIERS FOR NEGLIGENCE, AT COM- MON LAW, AND UNDER THE CARRIERS' ACT (1 WILL. 4, c. 68). The degrees of negligence — What is legal negligence — Inevi- talle accident— Live stock — Negligence in contracts "at the risk " of the sender — Wliere consignor contributes to the loss — Right of countermand. It has been stated («) that great uncertainty of language, and difference of opinion, exist throughout the cases, when- ever it has been attemped to define the actual amount of negUgence, which is required, in particular bailments, to fix a liability on a bailee, who is not absolutely responsible as an insurer. In the case of a common carrier for hire, it is not, apparently, necessary to investigate the shades and gradations of the scale, because his position as an insurer creates his liability, without evidence, necessarily, that he has been guilty of even the slightest negligence. But a common carrier, in the common law sense of the term, is a rare and almost extinct specimen of a past era of English law. In the large majority of cases he has been practically converted, either by statute or by spe- cial contract, into an ordinary bailee for hire ; and it becomes therefore important to define and illustrate, as far as the nature of the subject allows, the degrees of negli- gence which are sufficient, or insufficient, to impose a liability for loss or damage on such a person. It is the (a) Supra, Chapter I., pp. 5, 6. ON THE LIABILITY OF CARRIERS, ETC. 121 purpose of this chapter to explain the common law liability, for negligence, of a carrier who stands in the position of an ordinary bailee for hir€ ; and also how far that liabiUty may be modified by special contract or the Carriers' Act. The subject of legal negligence will be cleared from many of its metaphysical subtleties, if it be regarded as being, in all cases, not a principle, but a fact depending on, and regulated by, the circumstances and complexion of each particular case. There are, it is true, different degrees of care and watchfulness, expected and required, from different classes of bailees; and an act, or an omis- sion, which is culpable in the case of a paid bailee, may be excusable in the case of an unpaid bailee (5). But these considerations are substantially questions of fact for a jury, which ultimately resolve themselves into one final question: considering all the circumstances of the contract and the case, was the bailee, or carrier, guilty of negligence ? If this term be used in its strict and popular sense, it is needless to inquire whether it was slight, moderate, gross, or culpable. A bailee is, in all cases, liable for the conse- quences of legal negligence; and where he is not liable, it is because the law does not hold his act or omission, with due reference to his legal duties, to be either negligent or culpable. This view accords with that of the highest modern authorities. " I can see no difference," said Rolfe, B., in Wilson v. Brett (c), between negligence and gross negligence. It is the same thing with the addition of a vituperative epithet." It appears, therefore, that this branch of English law will be freed from many superfluous refinements, or inaccu- racies, if negligence in the performance of a trust be treated, always and abstractedly, as one and the same principle in all cases ; but a principle which wears practically the form of a fact, which is to be aflSmied or denied, according to special circumstances, by a jury. Every nonperformance (6) Supra, Chapter I. (c) 11 M. & W. 115. 122 ON THE LIABILITY OF CARRIERS of a duty is, or is not, an act of legal negligence. If it be justifiable or excusable because such nonperformance ■was inevitable ; or because the carrier did not expressly or impliedly warrant the safety of the chattel, nor contract to employ more than a certain amount of care, which is found in fact to have been employed ; such nonperform- ance does not fall within a correct definition of legal neg- ligence. If such nonperformance arose from a deficiency in the care and prudence which the carrier expressly or impliedly agreed to employ, the case ranges instantly within the definition ; and equally, whether the bailment was originally gratuitous, or for valuable consideration. Whenever, therefore, it becomes a question whether a carrier has been negligent in the discharge of his trust, the jury must be informed, and must consider, what was the original contract between the carrier and his employer. If it be special and express, no difficulty can arise ; because the language of the contract will probably contain all the requisite information. For where the parties have ex- pressly agreed that a certain and defined amount of liabiHty shall attach to the carrier, it will be generally self-evident whether a breach be within or without the limitation. But where there is no such express or special contract ; or where it leaves the carrier's liabilities undefined ; recourse must be had to the rules of common law; and it will be essential to ascertain, and to state clearly to a jury, the precise amount of prudence and duty which attach, as inseparable incidents, to the class of bailees within which the carrier is to be placed. It will be for the jury to say, on their application of the doctrine to the facts of the case before them, whether the combination and result require them to convict, or to acquit the carrier of negligence. It is desirable at this point to state, that there appears to be a clear legal distinction, understood and recognized, between /razfc? and negligence. Both principles are equally powerful, when established as facts, to avoid or to confirm FOR NEGLIGENCE, ETC 123 a carrier's liability ; but, in practice, it is generally the employer who declares on the carrier's negligence, and the carrier who defends himself by pleading the employer's fraud. The averments are, however, essentially different, although the distinctions frequently melt into each other, and become nearly imperceptible. On this ground some writers have held that gross negligence amounts to fraud ; and that fraud is only a species of gross and wilful negli- gence. This was the view of Sir William Jones, who speaks of ordinary negligence as " a mean between fraud and accident ; " and of gross negligence as "inconsistent with good faith." But this view, as is clearly shown by Mr. Justice Story, has no foundation in English law; and is even apparently founded on an inaccurate interpretation of the civil law ; which, indeed, expressly states gross neg- ligence to be comparable and closely akin to fraud, {lata culpa, dolo proxima, dolo comparahitur,) but expressly dis- tinguishes it at the same time {d). It is manifest, in short, from every principle of usage and philology, that the es- sential element o^ fraud is a moral deficiency, viz. the want of good faith ; that of negligence is an intellechial deficiency, viz. the want of prudent reflection. The point of resem- blance and of junction creates an apparent, but only an apparent, identity. The wilfulness, or malice prepense, of fraud may in some cases appear to be the result of habitual selfishness and indifference to the just rights of others, and so may resemble gross negligence. On the other hand, extreme negligence, as where damage arises from an act which might have been avoided by common prudence, cannot fail, in numberless cases, to create a sus- picion, and to have the appearance of wilfulness and fraud. But the relation will continue to be one of analogy, and not of unity ; and the occasional difficulty of distinguishing, as between the operations of instinct and reason, is no argument to prove an identity. (d) Story on Bailments, sect. 20. 124 ON THE LIABILITY OF CARRIERS When negligence is made the basis of a carrier's hability, it must be measured and estimated by the trust contained in the baihiient. A breach of such a trust will constitute negligence ; but where the trust has been fulfilled it is clear that negligence cannot be found. To determine, therefore, whether a carrier has been guilty of loss or damage by negligence, it is necessary, as a preliminary step, to deter- mine what were the terms of the original trust, and to inquire whether any of them have been broken. If any of them appear to have been broken by the carrier, and if the damage be traceable to the breach, there must be a verdict of neolioence a2:ainst him. If none of them have been broken ; or if the damage be not traceable to the breach ; he cannot be said to have committed negligence. First, therefore, let the comparatively rare case be put ■of damage to goods while they are in the custody of an xmpaid carrier. Here the bailment is solely for the benefit of the bailor ; and, as the bailee derives no benefit from the trust, it is said that he is bound only to employ slight diligence, and is answerable only for gross negligence (e). Such being his duty, it is clear that an act which would be culpable, or negligent, if he were bound to employ great, or even moderate, diligence, will, in point of law, be neither culpable nor negligent in one who is required to employ only slight diligence. But the omission of slight diligence is the commission of gross negligence — i. e., of that extreme want of common prudence which constitutes negligence in the particular bailment. What, then, is sHght diligence ? It is said to be " that degree of care which persons of less than common prudence, or of any prudence at all, take of their own concerns ;" or " which men habitually careless, or of little prudence, generally take of their own concerns" (f). This definition appears to be correct : and equally so its converse (by (e) Story on Bailments, s. 23; cf. (/) Story on Bailments, s. 16. supra, Chapter I. FOR NEGLIGENCE, ETC. 125 another American judge cited by Mr. Justice Story), that gross negligence " is that omission of care which even the most inattentive and thoughtless never fail to take of their owai concerns." It is this kind of carelessness which is spoken of as dolo proxima, or closely akin to fraud ; and where the bailment is gratuitous, and for the sole benefit of the bailor, it must clearly approach to fraud before the bailee can be held liable for negligence. He is not required to be very careful ; nor even to attain the standard of ordinary prudence : but he must fall below the lowest degree of ordinary prudence before he can be said to have omitted slight diligence, or to have committed legal neg- ligence. It appears to be understood now, that it is entirely a question for a jury to say whether, under the circumstances of the case, there has been an omission of slight diligence, or a commission of gross negligence, by the carrier. The question is purely one of evidence, if there be any for the jury ; but the onus prohandi lies on the plaintiff (^). But it appears that the fact of a gratuitous bailee having taken such care of lost property as he takes of his own, does not create any presumption that he has employed a requisite amount of care (li) ; and he will be liable, as for gross negligence, if he leave the bailed property with his own in an unsafe spot (i). He is also bound, in dealing with the chattel, to employ such skill as he possesses ; and he will be liable if it appear that he carelessly omitted to use such skill. In this respect a distinction is drawn between the liability of a gratuitous carrier, and a carrier for hire. The former is liable for neghgence only in the event of his appearing to have possessed competent skill, and not to have employed it; the latter, or a borrower, is presumed to have competent skill, and the occurrence of damage {g) Doorman v. Jenkins, 2 Ad. & {h) IbicL ; cf. supra, p. 5. Ell. 256. (0 Kooth t;.Wilson, 1 B.& Aid. 59. 126 ON THE LIABILITY OF CARRIERS creates a presumption of negligence {k). In Wilson v. Brett, the defendant, who was a person skilled in horses, gratuitously undertook to ride the plaintiff's horse to Peckham, and exhibit it for sale. He exhibited the horse there on slippery ground, and allowed it to fall several times. In falling it broke its knees. It was held that the judge was right in telling the jury that if they thought the defendant had been negligent in going on the ground, or had ridden the horse carelessly, then they ought to find for the plaintiff. Here the undertaking of an office created a duty to perform it with due care, although the bailment was gratuitous : and so the case fell evidently within that of Coggs V. Bernard (Z). In Wilson v. Brett it was contended that the jury ought to have been told that they should find for the plaintiff, only in the event of their thinking that the defendant had committed gross negligence. But the court appears to have agreed that the question of negligence, or no neg- ligence, was quite sufficiently put; and Rolfe, B., who had tried the cause, stated his inability to see the distinction between negligence and gross negligence. So Alderson, B., has said generally, that " the definition of negligence is the omitting to do something that a reasonable man would do : or the doing something which a reasonable man would not do (m). The tendency of the court to identify the liabilities for negligence of unpaid and paid bailees was noticed in the first chapter of this work. Next we have to consider the essential constituents of legal negligence in a special carrier for hire. In this class, as in the former, the discretion of the jury is nearly unlimited, and must be guided by the circumstances of each case. But the degree of care required from a paid (k) Wilson V. Brett, 11 M. & W. and supra, Chapter II. 113. (m) Blyth v. Birmingham Water- {l) Cf. Blackmore v. Bristol and works Company, 11 Exch. 781; 25 Exeter Railway, 27 L. J. 167, Q. B., L. J. 213, Exch. FOR NEGLIGENCE, ETC. 127 bailee is greater than that which is required from an unpaid bailee ; and therefore a jury will be more vigilant and jealous in inquiring and considering whether a paid carrier has observed all the precautions of a prudent and con- scientious man. He does not insure, but merely under- takes to employ such care as a sensible, experienced and honest man would take of property which does not belong- to him ; and for the custody and conveyance of which he is to receive an adequate remuneration. First, he is not liable for loss or damage which arises from inevitable accident. In this respect his liability rests on a basis totally different from that of a common carrier. A common carrier incurs a liability to the full amount of the damage, as soon as it appears that goods have been damaged, while in his custody, without the intervention of the act of God, or of the king's enemies. But before a paid carrier, who is not a common carrier, can be affected with a liability, it must appear that the damage arose from his negligence. Proof of the damage is indeed prima facie evidence of such negligence, but it is not conclusive; and it may be rebutted by evidence, on the part of the carrier, that the damage was caused by unavoidable or uncon- trollable circumstances, without the omission, on his part, of any of the reasonable and usual precautions of a com- petent and careful man. If a jury be satisfied that he used all such precautions ; and that his conduct exhibits no deficiency in that skill and prudence which may reason- ably be looked for and demanded from a man who im- pliedly professes both skill and prudence when he under- takes to carry goods or persons for hire ; they are bound to find a verdict for him ; but otherwise they must find for the customer. A paid special carrier will not be liable for loss by the act of God, the king's enemies, or tempests : and in this respect has only the same immunities as a common carrier. But, unlike a common carrier, a mere special carrier for 128 ON THE LIABILITY OF CARRIERS hire will not be liable if goods be consumed accidentally by fire (w) ; or if he be forcibly robbed of them (o). In such cases he will not be liable " if he has kept the goods with as much diligence and caution as he would keep his own" (p) ; unless such diligence and caution are evidently below the standard of ordinary prudence {rj). The same doctrine applies to all such casualties as are within the popular signification of the phrase " inevitable accident" (r). When an accident is proved to have been inevitable, it follows that no blame can attach to the carrier : and, con- sequently, there are no premises from which a jury can infer and pronounce that he has committed negligence. In all cases in which a carrier is charged with loss, or damage, by negligence, the owner raises a. prima facie case of neolioence when he has shown that an accident has occurred, and that damage has ensued while the goods were in the custody of the carrier (s). It then becomes the duty of the carrier to clear himself, if he can, by showing that the accident occurred, and that the damage ensued, without his fault or want of proper care (t) ; or that, notwithstanding such want of proper care, or not- withstanding even his own negligence, he is protected from liability by the terms of an express contract with his employer {u) ; or that the owner caused or contributed to the accident or damage by his own fraudulent or negligent conduct {x). But an accident is not conclusive, but only prima facie evidence of negligence (?/) : and it seems even (n) Forward v. Pittard, 1 T. R. 27. (t) Ibid. ; Birkett v. Great West- (o) Gibbon v. Paynton, 4 Burr. ern Railway, 28 L. J. 348, Exch. ; 2299. Thompson v. North-Eastern Rail- (/;) Lord Mansfield, in Gibbon v. way,. 30 L. J. 67. Q. B. Paynton. (m) Carr v. Lancashire and York- (q) Clarke v. Earnshaw, Gow. 30; slure Railway, 7 Exch. 707. Lech V. Maestaer, 1 Camp. IBS. (x) Miles v. Cattle, 6 Bing. 743. (?•) Story on Bailments, 24, n. (y) Bird v. Great Northern Rail- (s) Carpuew. London and Brighton way Company, 28 L. J. 3, Exch. Railway Company, 5 Q. B. 747. FOR NEGLIGENCE, ETC. 129 to have been doubted whether it is sufficient prima facie evidence (r). If it be so, the presuiuption is entirely- rebutted by evidence that the accident was caused by the wilful act of a stranger (a): and if it be doubtful whether the accident proceeded from the negligence of the carrier he will be entitled to the verdict (J). The standard of prudence will be the prudence and common sense of the world generally, and not the judg^ ment of any individual man (c). This is so, whether the case be one of a gratuitous bailment, or for hire ; and therefore the general and universal principle will resemble that of the last cited case, where the defendant was held liable for negligently constructing a hayrick so near to the plaintiff's property that, in consequence of its spon- taneous combustion, the plaintiff's house was burned down. Where the accident was caused by the bursting of a steam-boiler, it was held, that the jury were properly directed to find that the defendant had committed gross negligence, if they thought that the accident was caused by the servant of the defendants having improperly filled the boiler with water, at a season of the year when such an accident might be reasonably expected from such an act {d). Where goods were lost by a carrier, who had sent them by a waggon with seven horses, but only one driver; held, sufficient to support a verdict of negligence against the carrier {e), (2) Ibid.; cf. Phillips 0. Edwards 04, Exch.; Cotton «. Wood, 29 L.J. and others, 28 L. J. 52, Exch. 333, C. P. ; Vaughan v. TafT Vale (a) Latch v. Rumner Railway Railway, Sc. Cam., 5 H. & N. 679 j Company, 28 L. J. 3, Exch. 29 L. J. 41, Exch. (6) Tooney v. London, Brighton (c) Tindal, C. J., Vaughan v. and South Coast Company, 3 C, B., Menlove, 3 Bing. N. C, 475. N.S.146i 27 L.J. 39, C. P.; White- {d) Bennett v. Dawson, 4 Bing. house V. Birmingham Canal Com- C09. pany, 27 L. J. 25, Exch.; Cornman (e) Beckford v. Crutwell, 5 C, & V. Eastern Counties Railway, 29 L. J. P. 242. K 130 ON THE LIABILITY OF CARRIERS Where a carrier placed a box with its lid projecting towards the end of the waggon; and the waggon was left at night in the road opposite an inn where the waggoner stopped, without any one to watch it; and the box was forced open, and the goods were stolen; held, that the carrier was liable as for legal negligence (A). So, even where the carrier left his coach for some time at night in the street, with a porter to watch it; and a parcel was stolen from it during his absence; there was held to be evidence of negligence for a jury (i). On the arrival of a parcel at the carrier's office in town, it was sent out to be delivered, with other parcels, in the charge of a man from whose cart it was stolen, while he had left it to deliver some of the other parcels ; held, sufficient to support a verdict of negligence (k). If a carrier, believing bond fide that he is delivering goods to the right consignee, be induced to part with them to a wrong consignee, he will be liable for negligence, if the circumstances under which he delivered them were such as ought to have excited the suspicion of a prudent man. In Stephenson v. Hart(Z), the evidence was held sufficient to charge the carrier for negligence, because it was his duty, when he found that no person of the name of the consignee was known at the address, to have com- municated the fact to the consignor; and not to have delivered without receiving further instructions from him (rti). In an earlier case, which was not referred to in the last cited, it appears to have been virtually decided that, where a parcel is directed to a person, generally, at a town, without specifying his place of abode, a carrier is not dis- {h) Langley v. Brown, 1 M. & P. {k) Smith v. Home, 2 Moore, 18. 583. {I) 4 Bing, 476. (»■) Batson v. Donovan, 4 B. & (»*) Infra. Aid. 21. FOR NEGLL6EXCE, ETC. 131 charged if he deliver it to a person purporting to come from the consignee (n). It has been said, however, that " the misdelivery of a parcel is not necessarily a proof of want of ordinary care ; still less of gross negligence, if that word is to be under- stood as meaning a greater want of care : it may have been an act done by a careful person, who has been deceived by an artifice calculated to circumvent the most careful person" (o). It is to be observed, that his Lordship says only, that " a misdelivery is not proof of want of ordinary care :" not that it is not evidence, which, according to Stephenson v. Hart, it must clearly be taken to be. But, even in this point of view, it is difficult to reconcile the dictum with the cases. It was stated by Park, J., in Stephenson v. Hart, that, " from the cases which have been cited, it is clear that trover lies against a carrier for misfeasance in delivering a parcel to a wrong person ;" and in an earlier case {p), which was approved of in Stephen- son V. Hart, the carrier was held liable for a misdelivery to a person who claimed a parcel, and in whose honesty he had reason to confide. Generally, there will be a case of negligence against the carrier, if he or his agents have omitted any precautions which a prudent man ought to have employed. Thus, a carrier has been held liable for negligence, because it appeared that his agent had knowingly suffered a coach- man, who was too intoxicated to attend to his duty, to retain possession of a valuable parcel, which he subse- quently lost iq). So, where a parcel was sent by a carrier who forwarded it without authority by a different carrier, he was held liable for neg-lip-ence before the Carriers' Act : notwith- («) Birkett i;. 'SVillan, 2 B. & Aid. (jo) Duff v. Budd, 3 B. & B. 177. 357. {q) Bodenharay. Bennett, 4 Price, (o) Parke, B., in Wyldy.Pickford, 31. 8 M. & \V. 459. k2 132 ON THE LIABILITY OF CARRIERS standing tliat the consignor had been affected with notice that the carrier would not be liable for such parcels (r). The principle on which this case proceeds is, that where a carrier deviates from the terms of his express or implied contract, he will be liable, as for legal negligence, notwith- standing an antecedent breach of duty on the part of the consignor, which would otherwise have exonerated the carrier. A carrier, therefore, who would otherwise be protected, by the terms of his contract to use only ordinary diligence against loss ; if the goods be forcibly robbed during the transit, will be liable if the robbery take place during a deviation from the proper road. Thus, where a ship during time of war deviated from its route to chase prizes, and was captured, the owner, who would not otherwise have been liable, was held to be so for the loss of the plaintiff's merchandize (s). The same rule holds, if the damage be caused by any species of accident during the deviation ; and the carrier cannot defend himself by showing that a similar or worse accident might have occurred if he had kept to the regular route. But it will be otherwise if he can show that such an accident either must have happened, or would have probably happened, if he had kept to the ordinary road (t). There the defend- ant's barge, laden with lime, belonging to the plaintiff, deviated unnecessarily from its route ; and during the deviation encountered a storm, by which the lime was heated, the barge consequently took fire, and both were lost. This evidence was held sufficient proof of negh- gence in the carrier. Where the loss arises from the defective state of the carrier's vehicle, he will be hable, although the defect be out of sight, and could be discovered only by a close in- vestigation ; and, although the defect be altogether imper- ceptible, it would appear that a jury may still, on the (r) Slcat V. Fagg, 5 B. & Aid. 342, (t) Tindal, C, J., Davis v. Garrett, {$) Parker v. James, 4 Camp. 112. 6 Bing. 724. I i FOR NEGLIGENCE, ETC. 133 circumstances of the case, find that the carrier has com- mitted negHgence(?0' In Sharp v. Grey, an accident occurred from the breaking of an axle-tree of a coach, which had been examined externally, but not internally, before the coach started. It was sworn that the coach had been made of the best materials, and it appeared that the accident was caused by a defect in a portion of the axle- tree, which was embedded in the woodwork, and could not be discovered except by taking the wheel to pieces. The jury found negligence in the carrier, and the court refused to disturb the verdict. This case is distinguishable from Christie v. Griggs (x), where the facts were very similar, but where it was said by Mansfield, C J., that, " if the axle-tree was sound as far as human eye could discover," the carrier was not liable, because " his undertaking went no further than this, that, as far as human care and foresight could go, he would provide a safe conveyance ; therefore, if the breaking down of the vehicle was purely accidental, the plaintiff had no remedy." But it was there proved that " the axle- tree had been examined a few days before, without any flaw being discovered in it." And it may be taken that this evidence implies? that the interior as well as the ex- ternal part was examined. It appeared, also, that the acci- dent had been directly caused by a defect in the road, and on these facts a verdict was given for the carrier. It must be held, however, that it proceeded on the fact, or the assumption, that the axle-tree had been carefully examined shortly before, and that the defect was at that time imper- ceptible. The case would otherwise be irreconcileable with the dictum of Alderson, B., in Sharp v. Grey, that " a coach proprietor is liable for all defects in his vehicle which can be seen at the time of construction, as well as for such as may exist afterwards, and be discovered on investigation ;" for " in every contract for the carriage of goods, it is a term of the contract implied by law that the («) Sharp V. Grey, 9 Bing. 457. (r) 2 Camp. 81. 134 ON THE LIABILITY OF CARRIERS carrier's conveyance is * tight and fit' for the purpose or employment for which he offers and holds it forth to the public ; it is the very foundation and immediate substratum of the contract that it is so : the law presumes a promise to that effect on the part of the carrier without actual proof, and every reason of sound policy and public con- venience requires it should be so" (?/). In Lyon v. Mells it was held, that a carrier by water im- pliedly promises that his vessel shall be tight and water- proof, and that he is Hable for negligence if goods be da- maged by leakage. If a carrier, who has undertaken to carry to a certain terminus, deliver over goods in the ordinary course of his business to another carrier, to be conveyed to such terminus, he will still be liable for any loss by the negligence of such other carrier (0). Where a carrier relies upon any special agreement by which his liability is restricted within that which he incurs at common law ; as where he relies on an agreement that he shall not be liable for dangers of the road and accidents generally, he must prove such agreement to have been made («). Where there was evidence that at a quarter-past five the points of a railway hne were right ; and that at half-past five the trucks containing the plaintiff's goods went off the line at one of the points, under the lever of which a stone was found to have been inserted, apparently by a stranger ; it was held, that there was no evidence of negligence in the defendants ; although the jury had found that the defend- ants ought to have had a servant at the points to look after them (b). (y) Per Lord Ellenborough, C. J., Railway, Dom. Proc, 29 L. J. 41, Lyon V. Mells, 5 East, 437 ; cf. Blecli Exch. ij.Balleras,29L.J.2()5,Q. B.,Hill,J. {b) Latch v. Rumner Railway (z) Muschamp v. Lancaster and Company, 27 L. J. 155, Exch. ; cf. Preston Junction Railway, 8 M. & Cotton v. Wood, 8 C. B., N.S. 568 ; W. 421. Vaughan v. TaiF Vale Railway, So. (a) Richardson v. Sewell, 2 Sm. Cam., 5 H. & N. 679; 29 L. J. 41, 205; cf. Collins v. Bristol and Exeter Exch., and supra, p. 129. FOR NEGLIGENCE, ETC. 135 But where a passenger was killed by a collision, caused by the careless management of a railway " switch :" and the company had sometimes a servant to look after it, and sometimes not; and the jury found negligence in the rail- way company ; the court upheld the verdict, and held that the liability of the defendants would be the same, even if the " switch" was actually in the custody of another com- pany (c). Where the train had gone off the railway at a point to which the improved powers of " fishing" rails had not been extended ; the court held, that the judge was justified in leaving the conflicting evidence generally to the jury ; and that he was not bound to tell them that the accident was prima facie evidence of negligence in the defendants (6?). Some doubt appears to exist as to the extent of a car- rier's liability for loss or damage to live stock during the transit. If a carrier be in the habit of carrying live stock, as a common carrier, from place to place, he will neces- sarily incur the liability of an insurer, unless he limit it by special contract at the time when he receives such live stock. But where he is not a common carrier, and where no such agreement has been made, it appears that he im- pliedly promises, as in the case of merchandize or other goods, to provide fit and safe vehicles, and to take such care of them, during the transit, as a prudent man would take. If they be animals which are likely to escape, he must secure them properly ; and an omission to do so will be strong evidence of negligence. Where a dog was de- livered to a carrier with a string round its neck, and was tied by the carrier in a watch-box, where it slipped its head from the noose, and escaped, and was lost ; Lord EUenborough held, that the carrier had become responsible for the safety of the dog, and was bound to take proper (e) Birkett v. Whitehaven June- way, 28 L.J. 3, Exch. ; s. v. Carpiifi tion Railway Company, 28 L. J. 318, v. London and Brighton Railway, Exch. 5 Q. B. 747 ; and supra, p. 128. (d) Bird v. Great Northern Rail- 136 ON THE LIABILITY OF CARRIERS means to secure him; and that the facts were evidence that he had not taken such proper means (e). It may be therefore considered that, in the absence of a special agreement, a carrier who undertakes to convey live stock incurs the same duties and liabilities, and will be responsible, either as an insurer, or for negligence, according to the same rules as exist in the case of ordinary goods. Therefore, if he receive live stock, directed to a particular place, and does not by positive agreement limit his re- sponsibility, there is prima facie evidence of an under- taking on his part to deliver safely and securely at the address ; and he will be liable for loss or damage by negli- gence (/). But no carrier, not even a common carrier, is bound to carry live stock, or any other description of goods which he is not in the habit of carrying (^) ; and few carriers of the present time undertake to carry live stock except on terms of limited liability, or total non-liability, for loss or damage. But it is also clear that there is no legal distinc- tion recognized between live stock and goods or wares; and that the principle, by which a carrier's liability for the safety of human beings is regulated, does not apply to the case of ordinary animals. Thus, in Palmer v. The Grand Junction Railway Com- pany {h), the declaration charged the defendants, as the owners and proprietors of a railway, with a contract to carry safely and securely for him certain horses of the plaintiff: breach, that the defendants did not use due or proper care in and about the carriage and conveyance ; damage, that, in consequence of their taking so little and fiuch bad care, the carriages were thrown off the line and one of the horses killed, &c. The declaration was substantially proved as to the de- (e) Stuart v. Crawley, 2 Stark. 323 ; and Preston Junction Railway, 8 M' cf. Harrison v. London and Brighton & W. 423. K-ailway, 29 L. J. 209, Q. B. (g) Johnson v. Midland Railway (/) See Muscharap v, London Company, 4 Exch. 367. Qi) 4 M. & W. 749. FOR NEGLIGENCE, ETC. 137 livery of the horses and the fact of the damage ; and the defendants failed to show that they had limited their com- mon law liability by the delivery of a ticket. The jury found gross negligence, and the plaintiff had a verdict. On a rule to enter a nonsuit, some attempt was made on behalf of the defendant to establish a distinction between a carrier's liability for goods and his liability for live stock ; and Parke, B., is reported to have said : " Does the rule as to negligence apply to live animals, as men or horses ? Of course, where they are stolen, it would; but is it so where they are delivered, although hurt or damaged ? If misdelivered, the carriers would be liable ; but they would not be liable for a mere accident to a live animal, sup- posing the carriage to be safe and good and properly con- ducted" (i). The effect of this remark, if it be correctly reported, appears to contain the undoubted principle that, as in the case of passengers, so in the case of live stock, or indeed of any species of goods, a carrier, who is not a common carrier, is not liable for damage by accident without neg- ligence. It is also understood that even a common car- rier does not insure the safety of passengers, and that he is not liable for damage without negligence. But if it is to be understood, as the language of this eminent judge almost seems to imply, tliat there is one rule of negligence where the damage is to human beings or live stock ; and another where the damage is to ordinary goods or wares ; it is apprehended, deferentially, that this proposition cannot be supported. It is decided, indeed, that even a common carrier is not liable for damage to a passenger except in cases of manifest negligence (A) ; but no case has drawn a distinction between a carrier's liability for different kinds of chattels. A passenger has presumably powers of pru- dent self-control ; and the difficulty of estimating the value of human life and limb appears to be another reason for («) Ibid. p. 753. (k) Crofts v. Waterhouse, 11 Moore, 138. 138 ON THE LIABILITY OF CARRIERS exempting the carrier from liability for unavoidable damage to either. But no such presumption arises in the case of the inferior animals; and practically theje is no physical, as there is no legal, distinction between them, as things without reasonable volition, which are therefore indiscri- minately classed under the term chattel. So, according to the American law, a carrier is not liable without negligence for damage to a slave, although it has been contended that a slave is only a chattel (/). The general result of Palmer v. The Grand Junction Railway Company supports this view. Parke, B., himself, in delivering judgment, states the transaction as " simply a contract to carry goods f^ that notwithstanding a defective declaration, the defendants were, on the facts of the case, to be regarded and treated as common carriers ; that, as such, they were liable for all accidents, except such as arose from the act of God or the king's enemies ; and ap- parently, that if they had not been chargeable as common carriers, they would have been liable for negligence as spe- cial carriers for hire, if the notice of action to which their act entitled them had been given. But although there appears to be no authority for placing the liability of carriers of live stock on the same footing as their liabihty for the safety of passengers ; and although there is no admissible legal distinction between live stock and wares as personal chattels ; it must be conceded that the courts have in some instances shown a disposition to require stronger evidence of negligence, in the case of live stock, than they have thought sufficient in the case of ordinary goods. It appears to be held that the tendency of animals to take fright, and become suddenly unmanage- able, is a reason, in some cases, for excusing the carrier from the charge of negligence. On this principle, when- ever a carrier has expressly exempted himself by special contract from liability for damage to live stock during the transit, the courts are disposed to construe such contracts (i) Angcll on Carriers, sect. 122. FOR NEGLIGENCE, ETC. 139 strictly, and for the benefit of the carrier ; and the language of the judges appears to shadow out the existence of a similarly indulgent common law principle. Thus, in Carr v. Lancashire and Yorkshire Railway Company (m), Parke, B,, said : " Prior to the establishment of railways, the courts were in the habit of construing contracts between individuals and carriers much to the disadvantage of the latter. By the introduction of railways, a new description of property was carried ; and many articles are now trans- ferred from one place to another, which had not been com- monly carried before. Sheep and other cattle are now ordinarily carried upon' rail ways; and even horses, by means of which the conveyance of goods was effected, are now themselves the subject of conveyance. Therefore contracts are now made with reference to this new state of things ; and it is very reasonable that carriers should be allowed to make agreements for the purpose of protecting themselves against the new risks and dangers of carriage to which they are in modern times exposed. Horses are not con- veyed on railways without much risk and danger. The rapid motion, the noise of the engine, and various other matters are apt to alarm them, and to cause them to do injury to themselves. It is therefore very reasonable that carriers should protect themselves against loss, by making special contracts." So, in Chippendale v. Lancashire and Yorkshire Railway Company (/i), Erie, J., is stated in the Jurist Report to have said : " It is impossible to calculate the risks of the conveyance of animals not domesticated ;" and in the Law Journal version : " I think that a limitation, however wide in its terms, being in respect of live stock, is reasonable; for though domestic animals might be car- ried safely, it might be almost impossible to carry wild ones without injury." These remarks must be qualified now in the case of railway and canal carriers by the new law, which has {m) 7Exch. 712. (w) 15 Jur. 1107; 21 L.J. 22, Q. B. 140 ON THE LIABILITY OF CARRIERS spmn<:^ up under the Railway and Canal Traffic Act, 1854, (17 & 18 Vict. c. 31,) which will be considered in a later chapter; but this may be taken as introductory to a ques- tion of much interest, which has only been decided lately, and which, perhaps, even now is not entirely free from doubt, viz., whether a carrier can be held liable for any kind of negligence, when it has been expressly agreed between him and the owner of the goods that the con- veyance shall be at the risk of the latter. Does such a contract exempt a carrier from liability for all, even the grossest negligence; or must it be held — as in common sense and justice it would appear that it ought to be held — that, notwithstanding such an express contract, a carrier is still bound to use ordinary diligence ; and that he will still remain liable for such negligence as, with due reference to the special contract, a jury may consider to be gross or culpable ? It must be admitted that, if the law be represented by decided cases, there appears, in this instance, to be a distinct conflict between it and natural equity. Lyon V. Mells (o), which has been already quoted to establish the duty of carriers in all cases to provide safe and well- constructed vehicles, was one of the earliest cases on this subject. A carrier had there stipulated that he would not be answerable for any damage, unless caused by want of ordinary care or diligence on the part of the master or crew ; and that in such case he would only be liable to the amount of ten per cent, on the actual damage. The owner signed a notice to that effect. The goods were damaged by the leakage of the defendant's vessel, and it was found that when the goods were shipped the vessel was not in a proper condition to convey them safely, and that the loss was caused by the defendant's negligence. The question was, whether the plaintiff, with due reference to the agreement, was entitled to more than ten per cent, on the damage. (o) 5 East, 428. FOR NEGLIGENCE, ETC. 141 The court held, that the plaintiff was entitled to the full amount ; and Lord EUenborough stated the principle which has been already cited, that every carrier impliedly under- takes that his carriage is '' tight and fit for the purpose or employment for which he holds it forth to the pubUc; it is the very foundation and substratum of the contract that it is so." His Lordship proceeded thus : — " It is impossible, without outraging common sense, so to construe this notice as to make the owners of vessels say, ' We will be answerable to the amount of ten per cent, for any loss occasioned by the want of care of the master or crew, but we will not be answerable at all for any loss occasioned by our own misconduct, be it ever so gross and injurious ;' for this would in effect be saying, * We will be at liberty to receive your goods on board a vessel, however leaky, how- ever unfit and incapable of carrying them ; we will not be bound even to provide a crew equal to the navigation of her ; and if, through these defaults on our part, she is lost we will pay nothing.' . . . Ridiculous as this sup- posed state of the agreement must be, yet these and more absurd stipulations must be introduced into it if we give it a construction which shall bring this case within it. . . . Every agreement must be construed with reference to the subject matter ; and, looking at the parties to this agree- ment (for so I denominate the notice) and the situation in which they stood in point of law to each other, it is clear beyond a doubt that the only object of the owners of lighters was to Umit their responsibility in those cases only where the owner would have made them answer for the neglect of others, and for accidents which it might not be within the scope of ordinary care and caution to guard against." It is to be regretted, that this admirable reasoning appears to have been gradually lost sight of in recent cases; and that contracts, in which the goods have been carried " at the risk" of the sender, have been held appa- rently to relieve the carrier from the obligation to provide 142 ON THE LIABILITY OF CARRIERS safe vehicles, or even to take ordinary care of the goods during" the transit. It is also to be observed that, although Lord Ellenborough, in the latter part of the above judg- ment, states that it was clear that the owner of the lighter intended only to limit his liability in respect of the neglect of others, and of unavoidable accident, and so apparently decides the question according to the strict construction of the special contract in that case ; yet it is also clear, that he contemplated, as an undoubted general principle, the absurdity of any contract, however express and general, containing an implied authority to the carrier to commit acts of wilful misconduct or gross negligence. Accord- ingly, in Beckford v. Crutwell (p), Lord Tenterden held, that a carrier was liable at common law for gross negli- gence, notwithstanding the terms of a special contract ; or, as his Lordship left it, " for not taking such reasonable care as the common law imposes upon carriers, and from which not even the notice could protect them." Yet, if the latest decisions are to be held law, a carrier, who has expressly agreed with the sender of goods, that the carriage shall be entirely at the risk of the latter, will not be liable if he should wilfully leave the goods to be robbed in a public thoroughfare ; nor even if he should deliberately cast or give them away at any point of the transit. It would appear that he is neither bound to provide safe and proper vehicles, nor to employ competent and honest servants; that, in short, he has no definite duty nor liability whatever. However preposterous and incon- ceivable such a state of law may appear to be, it seems to be the epitome and result of the cases which will now be cited. In Shaw v. York and North Midland Railway Com- pany (g), the defendants were charged, as owners of a railway, on a promise to convey safely and securely the plaintiff's horses. Breach, that they took so little and such bad care in conveying them, that, by reason of the (p) 5 C. & p. 2-12. (q) 13 Q. B. 347 ; 6 Railw. Cas, 87. FOR NEGLIGENCE, ETC. 143 defective state of the carriage, one of the horses was killed. The defendants pleaded, secondly, that tTiey had not undertaken to convey safely and securely ; and, thirdly, that they received the horses subject to a contract, that the plaintiff should undertake all the risks of conveyance whatever, &:c. It appeared that the plaintiff had tendered the horses to be carried ,• that three horse-boxes were shown him in the carriage, to one of which he objected on the ground that the partition was insecure. A company's servant assured him that it had been secured, and the plaintiff then paid the fare, and took the following receipt : — " N.B. This ticket is issued subject to the owner's undertaking all risks of conveyance whatever, as the com- pany will not be responsible for any injury or damage (however caused) occurring to horses or carriages while travelling, in the loading or unloading." During the transit, the horse was killed, owing to the insecurity of the partition. A verdict was directed for the plaintiff on the authority of Lyon v. Mells, that the memo- randum was subject to an implied exception of injury arising from the insufficiency of the carriage. On a rule for a new trial, it was contended for the plain- tiff that, notwithstanding the memorandum, the defendants were bound to use ordinary care ; and the court appears to have been of this opinion, and to have thought that the action would have lain if the defendants had been charged with the breach of a duty to provide proper and sufficient carriages ; but the rule was made absolute, because the memorandum disproved the allegation of an unqualified contract to carry safely and securely. This case, therefore, is not inconsistent with Lyon v. Mells, but virtually confirms it. But a slight deviation from the doctrine, that even an express contract must be held subject to certain indelible principles, is perceptible in the next case in the order of date (r). (r) Austin v. Manchester, Sheffield and Lincolnsliire Railway, 16 Q. B. 600 ; 20 L. J. 440, Q. B, 144 ON THE LIABILITY OF CARRIERS There the defendants had undertaken to carry the plain- tiff's horses; and the plaintiff had signed an agreement that he, the plaintiff, should bear " all the risk of injury by conveyance and other contingencies," and that he should see to the efficiency of the carriages before the horses were placed in them ; that he had seen to their efficiency, and that the company should " not be responsible for any alleged defect in their carriages or trucks, nor for any damage, however caused," to the horses. An accident was caused by the wheel of the carriage taking fire by friction during the journey. The defendants were held not to be liable on the terms of the special contract ; and it is clear that the accident was precisely one of that class for which the plaintiff had agreed that the defendants should not be liable. It is also clear that no culpable negligence attached to the defendants; but the language of Erie, J., is remarkable. His Lordship said : — " It is said that the cause of action is the gross neg- ligence of the defendants ; but if the matter be looked to carefully, it will be seen that such negligence on the part of the defendants involves the supposition of their standing in a certain relation to the plaintiff, by reason whereof their negligence gives rise to the action. The foundation of the action is a bailment, and the question of negligence always is a question of degree. That which would be negligence under one description of bailment would not give a cause of action under another kind of bailment . , . When the contract in this instance is looked to, it shows that the defendants expressly provided, when they agreed to take the horses by the particular train, against being called vpon to answer for any damage done by reason of the insufficiency of the carriage or otherwise.'" It may be inferred from this language that this distinguished judge considered that the terms of the memorandum in this case constituted a total exemption, for the defendants, from liability even for wilful negligence. This case is the turning point in the biography of the legal principle under consideration. The courts from this FOR NEGLIGENCE, ETC. 145 date have construed all such agreements in favour of the carrier, to the extent, apparently, of not holding him liable for even the grossest negligence, provided the language of the contract can be construed as wide enough to justify it. In Chippendale v. The Lancashire and Yorkshire Railway Company {s), the plaintiff signed an agreement, by which he undertook " all risks of conveyance whatever ;" and it was stated that the company would not be responsible for any damage to live stock, however caused. The jury found that injury was caused to the plaintiff's cattle by the truck having been so defectively constructed as to be unfit and unsafe for the purpose of conveying cattle ; and there was no evidence that the plaintiff knew of the defect, nor that he had examined, or been required to examine, the truck. But the court held, that the terms of the contract precluded the plaintiff from recovering; and Coleridge, J., expressed an opinion, that the authority of Lyon v. Mells must be confined to the special circumstances of that case. It is observable, however, in the above case, that the court did not expressly state that the carrier would not be liable if the negligence had appeared to be wilful ; and, although the evidence and verdict seem to have established that the carriage was really unfit to convey cattle, Erie, J., rested his judgment on the assumption that it would have been " fit for an ordinary journey, and for an ordinary freight of dead weight ; but the freight being live animals, it seems they were alarmed and escaped, and thereby the in- jury ensued. That is peculiarly the risk which the company absolve themselves from." Some importance was also attached by Coleridge, J., to the fact that the plaintiff had had an opportunity of examining the carriage; but the general result of the case appears to be that, although the damage was caused by an omission of the defendants to provide a proper vehicle, as in Lyon v. Mells, and, although the terms of the memorandum, as in that case, apparently referred only to damage occurring, during the transit, in a {s) 15Jur. 1106; 21 L.J. 22, Q. B. L 146 ON THE LIABILITY OF CARRIERS carriage which was, imphedly, to be sound and safe at starting ; yet, as the plaintiff undertook " all risks of con- veyance," he had impUedly absolved the carrier from a loss caused by gross negligence. This case was followed up by the Great Northern Rail- way V. Morville (t), in which the same court, and the same judges, held the same doctrine. But in this case the sender had not only undertaken to bear " all the risks of injury by conveyance," but, as in Austin v. Manchester and Sheffield Railway (w), had examined and satisfied himself as to the efficiency of the carriage. The damage, however, was caused by the negligence of the company's servants in moving the truck, in which the plaintiff's horses were, across the line. The defendants were held not liable. In Carr v. Lancashire and Yorkshire Railway Com- pany {v)y the declaration charged the defendants, as com- mon carriers, with an undertaking to carry the plaintiff's horse, subject to a condition that the plaintiff should un- dertake " all risks of conveyance whatsoever;" and that the defendants should " not be responsible for any injury or damage, however caused," during the transit. The jury found the declaration proved; and that, by the gross negligence of the defendants, the horse-box was propelled against a truck, and the horse killed. Verdict for plaintiff for full amount. This case may be held to be the climax of the new doctrine which has gradually superseded that of Lyon v. Mells. The carriers were held, on the terras of the con- tract, to be wholly exempt from liability, even for their yross negligence. Parke, B., said : — '* The jury have found that the defendants have been guilty of gross negligence; and therefore it may be taken, upon this record, that the breach, if any, was so occasioned. Now, I am of opinion, that, by entering into this contract with reference to the (0 21 L. J. 319, Q. B. (r) 7 Exch. 707. (m) Supra, p. 143. FOR NEGLIGENCE, ETC. 147 subject-matter, the owner has taken upon himself all risk of conveyance, and that the railway company are bound merely to find carriages and propelling power. The con- tract appears to me to amount to this : the company say they will not be responsible for any injury or damage, however caused, occurring to live stock, of any description, travelling upon their railway. This, then, is a contract, by virtue of which the plaintiff is the party to stand all risk of accident and injury of conveyance It is not for us to fritter away the true sense and meaning of these contracts, merely with a view to make men careful. If any inconvenience should arise from their being entered into, that is not a matter for our interference ; but it must be left to the legislature, who may, if they please, put a stop to this mode which the carriers have adopted of limiting their liability. We are bound to construe the words used, according to their proper meaning ; and, ac- cording to the true meaning and intention of the parties, as here expressed, I am of opinion that the defendants are not liable." The rest of the court concurred substantially in this view as to the particular case. Martin, B., held, with Parke, B., that such an agreement absolved the carrier ev^en from gross negligence in all cases; but Alderson, B., thought that " possibly a question might be made whether the injury contemplated was not such as must issue in injury to the thing conveyed, so that a doubt might arise whether the case of the horse being stolen was contem- plated, as, under such circumstances, the accident would not issue in injury to the horse conveyed." But Piatt, B., doubted altogether the universality of the doctrine that such a ticket " absolves the carriers from their gross mis- conduct;" and added : "I own I am very much startled by such a proposition ; though, considering the high au- thority by which it is supported, I feel I ought to doubt and mistrust my own opinion. But I am bound to say, that I am not satisfied that the language of this ticket ab- l2 148 ON THE LIABILITY OF CARRIERS solves the railway from such liability for damage. I cannot help thinking that the owner of the goods never dreamed of such a thing when he sioned the contract The case of gross negligence, as it seems to me, is not pointed at by the ticket." The reasoning of this learned judge must be echoed by every political economist. This doctrine seems also to have been doubted in M'Andrew and others v. Electric Telegraph Company {pc), where the action was for a mistake in the transmission of an unrepeated message; and the defendants relied on a special contract by which they stipulated that they would "not be responsible for mistakes in the transmission of unrepeated messages from whatever cause they may arise." No gross negligence was shown to have been committed by the defendants ; and they were held to be clearly pro- tected by their special contract; but Jervis, C.J., in- timated that it would not have protected them " against gross negligence." And it is clear that nothing but the most explicit stipulation will protect a carrier against gross negligence ; and that every ambiguity will be construed against him. Thus, where a bill of lading stipulated that a carrier should " not be accountable for leakage or break- age," he was held to be liable for damage arising from his gross negligence in the stowage of goods (i/). Cockburn, C. J., said: " I admit that a carrier can protect himself from the effects of his own negligence by a contract to that effect, if he can find any one to contract with him. I think, however, that we ought not to put that construc- tion on a contract, unless it is unambiguous in its terms." Accordingly, where common carriers of a cask of brandy, stipulated expressly that they would not be liable "for any loss or damage to such goods, arising from any cause whatever, during the transit ;" they were held to be pro- tected from responsibility for damage by leakage. It is to be observed, however, that in this case there does not seem (x) 25 L. J. 26, C. p. iy) Phillips v. Clark, 26 L. J. 168, C. P. FOR NEGLIGENCE, ETC. 149 to have been evidence, even of ordinary negligence; and the question, what would have been the liability of the car- rier for gross negligence, was left untouched. However, it appears to be assumed that a general under- taking on the part of the sender that he will be respon- sible for "all risk of conveyance," and that the carrier shall be irresponsible for damage, constitutes for the carrier, at common law, and irrespectively of the Carriers' Act, and of the 17 & 18 Vict, c. 31, a total exemption from liability, even for gross negligence (z). But the liability of a carrier for negligence under the Carriers' Act (1 Will. 4, c, 68) ; and the liability of railway and canal carriers under the 17 & 18 Vict. c. 31, depend respectively on different principles. That of railway and canal carriers will be dis- cussed in the chapter on railway carriers. Here the liability of carriers, at common law, as affected only by the 1 Will. 4, c. 68, will be considered. The progress of judicial opinion has been marked by nearly as many fluctuations in settling the construction of this statute, in this respect, as in determining the effect of a special contract of immunity from all risks at common law. In an early case (a), the plaintiff declared on the damage to goods during the transit. The defendant pleaded not guilty, the statutory notice, and non-commu- nication of the value of the goods which was above 10/. The plaintiff replied de injuria. The declaration and the plea were both proved ; but it was submitted for the plaintiff, that the defendant would be liable, notwithstanding the statute, if the jury should think that the defendant had been guilty of gross neg- ligence. Lord Denman told the jury, in the first place, to consider whether the injury arose from the negligence or gross negligence of the defendant. They found that it {z) Cf.Cockburn, C. J., in Phillips Cam.; and Blackburn, J., in Harrison D. Clark, supra ; cf. the judgment of v. London and Brighton Railway, 29 Erie, J., in M'Manus v. Lancashire L.J. 219, Q. B. and Yorkshire Railway, 4 H. & N. (a) Boys d. Pink, 8 C. & P. 361. 327 i 28 L. J. 353-356, Exch. Sc. 150 ON THE LIABILITY OF CARRIERS arose from the neglixjence of the defendant ; and his Lord- ship directed a verdict on the general issue for the plain- tiff, and on the special plea for the defendant. It is clear from this case, that Lord Denman entertained a doubt whether a carrier would be liable or not for gross negligence, when protected by the statute. In Wyld v. Pickford (b), a case since the act, but in which the act was not pleaded, and which it did not affect, because the carriage was partly by water, Parke, B., inclined to the opinion, that where a notice was good in other respects, a carrier would still be liable for gross negligence ; but as the special language of the act was not under conside- ration in that case, it cannot be held to have been affected by it. But in Owen v. Burnett (c), the goods (a looking-glass) were within the statute, and the statute was pleaded. The glass was damaged, according to the finding of the jury, by the negligence of the carrier ; but he was held not to be liable because this finding did not charge him with gross negligence. The court, however, clearly held that the carrier would have been liable, notwithstanding the statute, if he had committed either wilful misfeasance or gross negligence. Bayley, J., said : " I think that this case is within the act, and that, therefore, the plaintiff cannot recover for the loss sustained ; no wrongful conduct, or gross negligence amounting to a misfeasance, having been established to take the case out of the protection of the statute. Gross negligence has been held in many cases to affix a liability on a carrier to which he would not otherwise have been subject. Thus, had the defend- ant dashed the glass against the ground, that wrongful act would have made him liable." His Lordship then re- ferred to several cases before the act, and added : " In all those cases misfeasance had taken place ; whereas here there is ho misfeasance or gross degree of negligence, throwing the responsibility on the carrier notwithstanding (6) 8 M. & W. 443. (r) 4 Tyr. 133. FOR NEGLIGENCE, ETC. 151 the act." The other judges concurred in this view, and Vaughan, J., expressly said : " Had gross neghgence appeared, the carrier would have been liable, notwith- standing the act." This case preceded Boys v. Pink. But in Hinton v. Dibbin (d), the precise question arose : and it was determined by the Court of Queen's Bench, that a carrier, protected by the statute, is not liable for damage caused by his gross negligence. The case de- serves the most attentive consideration. The declaration charged the defendants, as common carriers, with damage done to the plaintiff's goods by the misfeasance, gross negligence, and wrongful conduct of the defendants. The plea averred the statutory notice and the non-communication of value. Replication — that the damage was caused by the " gross and culpable negli- gence and wrongful and improper conduct of the defend- ants, and by their gross and utter neglect, wilful de- fault, and entire and absolute want of care and caution." Rejoinder — that such want of proper care, &c. was the fault of the servants of the defendants. General demurrer. The plaintiff's points were, first, that the statute does not protect the carrier from losses through misfeasance or gross negligence ; secondly, that their liability extended to the misfeasance and gross negligence of their servants. The defendants contended that, under the statute, they were neither liable for their own gross negligence, nor for that of their servants. Erie for plaintiff; Sir William Follett for defendants. After a most elaborate argument, the court took time to consider its judgment, and Lord Denman, C. J., delivered it. His Lordship distinguished carefully between the com- mon law doctrines on the subject ; and the view which he conceived himself bound to take by the express language of the statute. He considered that as the charge of " mis- feasance" contained in the declaration had been dropped in the replication, the question was simply one as to the (if) 2 Q. B. 646. lo2 ON THE LIABILITY OF CARRIERS liability of a carrier under the statute for" gross or culpable neolioence," as distinouished from " wilful misfeasance." He treated the case as the first which had arisen under the act ; and considered that the language of the judges, in Owen v. Burnett, must be regarded as obiter dicta, because there the defendant was charged with negligence only, and not with gross negligence. His Lordship then con- sidered the objects and language of the statute in detail; and especially the preamble and first section, by which it is declared that, unless the sender have complied with the terms of the act, " no carrier shall be liable for the loss of or injury to any article or articles of property" therein specified. He referred to the 8th section, by which it is enacted, that " nothing in the act shall be deemed to protect any carrier from loss or injury to any goods, &c. arising from the felonious acts of ' a servant.' " " The former branch of this clause," his Lordship said, " is, to say no more, at least consistent with the supposition that for con- duct short of felony the carrier is no longer liable : whereas it is obvious, that, before the passing of the act, the carrier would have been liable for acts of the servant not amount- ing to or approaching to felony — negligence." His Lord- ship then said : " Upon the whole, the language of the first section seems to me to be perfectly clear and unam- biguous, without exception or restriction, and that none can fairly be implied from any other part of the act. By holding, the carrier exempt from liability as to the enumerated articles, unless the owner shall declare their nature and pay for them in the manner prescribed, we not only further the object avowed in the title and preamble of the act, but give it the effect of removing doubts and difficulties, which, (as we have seen,) it is admitted, did exist as to the liability of a carrier for the loss of goods, who has sought to limit that liability by the publication of a notice in the usual form." The view of the court is expressed so distinctly in this elaborate judgment of Lord Denman, that it would be presumptuous to question it; and it must be taken to be a FOR NEGLIGENCE, ETC. 153 correct, or at least a practical, exposition of the existing law. Still it may be observed, that there are points which might obviously be taken, if it should ever be brought before a court of error. It may be remarked, in the first place, that the case, as it is reported, does not manifestly relieve carriers from liability in all cases of gross neg- ligence; and that the court was not required to consider what their judgment would have been if the " gross neg- ligence" had amounted to " wilful misfeasance." Accord- ingly Sir WiUiam Follett, the counsel for the defendants, while contending that they were not liable for " gross negligence," said, " wilful misfeasance would of course come under a different consideration; if he intentionally misdelivered the parcel, trover would lie. There the act is tortious, without reference to the peculiar duty imposed by the character of the carrier." So also, as suggested by Coleridge, J., in such a case as Garnett v. Willan {e), where the carrier was held liable for sending goods by a different and unauthorized carrier ; it would appear that, even since the statute, this would be constructively such an act of misfeasance, over and above gross negligence, as might render the carrier liable. It may also be submitted, that the words of the statute, although undoubtedly large and comprehensive, are not more so than the terms of the various special contracts which have been considered in the present and the pre- ceding chapters; that, as most of those cases are sub- sequent to Hinton v. Dibbin, they may be regarded as either directly or indirectly controlling it ; and that, although the general result may be deemed rather to confirm than to weaken its authority, yet it must be taken as subject to the doubts and uncertainties which more than one learned judge have felt and expressed. Thus, in Austin v. Man- chester, (fee. Railway (/), Hinton v. Dibbin was cited as an authority, in a case of special contract, to show that where the owner has undertaken " all risks," carriers are (e) 5 B. & Aid. 53. (/) 16 Q. B. 600 ; 21 L. J. 179, C. P. ; supra, p. 143. 154 ON THE LIABILITY OF CARRIERS not liable for gross negligence ; and Jervis, C. J., then said : " It seems an alarming- proposition to say that they can exempt themselves from all liability. Supposing they were to be treated as gratuitous bailees, would they not be liable for gross negligence V It is clear also, from Hearn V. London and South-Western Railway (^), that there are certain losses by a carrier's negligence from which even the statute does not protect him; as where the owner has not communicated value, but relies on a loss caused by the delay of the carrier in delivering the goods. It may also be added, that it appears to have been the impression of the late Mr. J. VV. Smith, writing on the authority of Owen V. Burnett, and before Hinton v. Dibbin, that ** the protection given to the carrier by the act is substituted for the protection which he formerly derived from his own notice ; and the former, therefore, will not protect him in a case in which the latter would not have been allowed to do so, in consequence of his misconduct" {h). The last description of negligence, which will be con- sidered in this chapter, is, where the owner of goods, or a passenger, has caused or contributed to the damage, with which the carrier is charged. The general result of the cases on this subject appears to be the following : — If the damage be directly traceable to the owner's own negli- gence ; as if he pack goods carelessly and insecurely, so that they are peculiarly liable to damage by reason of some latent defect or omission, which is wilfully concealed from the carrier, and against which, therefore, he cannot be expected to guard; the loss is held to be attributable to the sender's, and not to the carrier's negligence. But where the goods are known by the carrier, at the time when he accepts them, to be of a perishable kind ; and generally, if he omit to ask questions as to the nature of the goods, he will be liable, notwithstanding the sender's omission to state their contents, unless they come within (g) 24 L. J. ISl, Exch. and Yorkshire Railway, 28 L. J. 355, (/() 1 Smith's Lead. Cas. 103 ; s. v. Exch, Erie, J., in M'Manus r. Lancashire FOR NEGLIGEN'CE, ETC. 155 the provisions of the Carriers' Act, Therefore, if a carrier receive goods which are insecurely packed, he will clearly be liable for damage arising from such insecurity, if it be apparent at the time when he accepts them (i). And he will also be generally liable, notwithstanding the omission or refusal of the sender to state their contents, except under the act (A). But the carrier will not be liable if the owner expressly retain possession of the goods during the transit; and it will be a question for a jury whether, when he accompanies the goods, he ever ])arted with the possession (Z). Similarly, the carrier will not be liable when the goods remain in the possession of the sender's agent, and when the carrier has actually or virtually no control or custody of them (m), or where the sender resumes possession before the end of the transit (n). In all such cases, if there be reasonable evi- dence that the damage is attributable to the owner's reten- tion or resumption of possession ; or other imperative interference with the goods ; the negligence will be treated as his, and the carrier will be exonerated (o). But a more doubtful case arises where the damage is caused partly by the negligence of the sender or owner, and partly by the negligence of the carrier. It is clear, as a general principle, that where the carrier pleads that the damage was caused by the owner's negligence, such neg- ligence must be subsequent, and cannot be antecedent to the bailment; because the carrier waives defects by ac- cepting delivery. Where, therefore, the defence sets up the negligence of the owner; such negligence must appear to have occurred during the transit; and the consequent damage must be shown to have been its natural and pro- bable result. But where the damage is the result of the negligence both of the owner and the carrier, the carrier (0 Stuartr.Crawley, 2Stark. 323. L. J. 137, C. P.; and supra, p. 43. (At) Crouch v. London and North- {m) EastlndiaCompany p. PuUen, Western Railway, 14 C. B. 255 ; 23 2 Stra. 690. L.J,73, C. P. (n) Sparrow «. Caruthers, 2 Stra. (/) Butcher t). London and South- 1235. Western Railway, 16 C. B. 13 ; 24 (o) See Chapter IV., ante. 156 ON THE LIABILITY OF CARRIERS will be exonerated, apparently, only in the event of the damage being traceable at least as much to the owner's negligence as to that of the carrier; and the latter will still be liable, if, notwithstanding the owner's negligence, he might by ordinary prudence have prevented the damage. It has been said by Lord Ellenborough, C. J., that "one person being in fault will not dispense with another's using ordinary care for himself," (p) where it was held, that the defendant was not liable for damage caused by obstructing a road, because the plaintiff, if he had used ordinary care, might have seen and avoided the obstruction. This case supports the doctrine, that, notwithstanding the owner's negligence contributing to the damage, the carrier will still be liable for his own negligence, if he might by ordinary care have avoided the consequences of the owner's negligence. The converse of this rule has been thus stated by Parke, B., w^ho has said, that "the rule of law is laid down with perfect correctness in the case of Butterfield v. Forrester; and that rule is, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of or- dinary care, have avoided the consequences of the defend- ant's negligence, he is entitled to recover ; if by ordinary care he might have avoided them, he is the author of his own wrong" (q). By applying this doctrine to cases of negligence, which is distributable between the carrier and the owner, their relative habilites will be apparent (r). In cases of collision it is held that, " if the mischief be the result of the combined negligence of the two, they must both remain in statu quo, and neither party can re- cover against the other" (s). Thus, where a child of five (p) Butterfield v. Forrester, 11 Northern Railway, 16 C. B. 179; East, 60. 24 L. J. 209, C. P. ; Morgan v. (q) Bridge v. Grand Junction Ravey, 30 L. J. 131, Exch. ; Ash- Railway Company, 3 M. & W. 218 ; worth v. Stanwix, 30 L. J. 183, Q. B. TufF V. Warman, Sc. Cam., 5 C. B., (s) Per Bayley, B., Vennale v. N. S. 573 ; 27 L. J. 322, C. P. Carver, 1 C. & M. 22 ; Cotton v. (r) See also Davies v. Mann, 10 Wood, 29 L. J. 333, C. P. M. & W. 549; Martin v. Great FOR NEGLIGENCE, ETC. 157 years, while under his grandmother's care, was knocked down by the train of the defendants ; it was held, that the child could not recover, although the defendants had com- mitted negligence, because the grandmother had also com- mitted such negligence as would have disentitled her to recover if the injury had happened to herself (0- In such a case it has been said, that "it is equally the duty of foot passengers, wishing to cross the streets, to look out for vehicles, as it is for the drivers to look out for foot pas- sengers ; and, in case of an accident, when the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale" (u). In that case the plaintiff's wife had attempted to cross a London street, on a dark and snowy night, where, how- ever, the street was well lit by gas ; and, startled by another vehicle, she hurried back, and was run over and killed by the defendant's omnibus, which was coming up at the usual pace, and on the proper side of the road. At the time of the accident the driver had turned his head back to speak to the conductor, and did not perceive the woman until it was too late to stop the horses. A verdict, found for the plaintiff, was set aside on the ground that it did not appear that the driver had been speaking to the conductor for any but a lawful purpose ; and that there was just as much reason for saying that the woman had run against the horses as that the horses had been driven negligently against her(x). Where the defendants had a urinal with the inscription " For Gentlemen" over it, where there was a lamp burning; and an adjoining door marked " Lamp Room," where there were steps down, and no lamp ; and the plaintiff, asking a stranger the way to the former, and being directed to it, (t) Waite !;. North-Eastern Rail- (x) Ibid.; cf. Cornman i'. Eastern way, 28 L. J. 258, Q. B. ; Sc. Cam. Counties Railway, 29 L. J. 9i, Exch.; affirming judgment below. Ellis r. London and South-Western (u) Per Erie, C. J., in Cotton v. Railway, 2 H. & N. 424; 26 L. J. Wood, 29 L. J. 334, C. P. 3i9, Exch. 158 ON THE LIABILITY OF CARRIERS entered hurriedly, and by mistake, the latter ; and, faUing down the steps, sustained the damage for which he sued the defendants ; it was held, that there was no evidence of negligence on their part(y). But the duty of a carrier, whether common or special, to convey safely and securely, is of a more stringent and personal kind than the duty to avoid an injury to a stranger ; and the exoneration of the carrier will be pro- portionably less complete, where he has committed any degree of negligence. The whole question whether the loss is to be treated as having been caused by the owner's negligence, or by that of the carrier, will, when properly pleaded (z), be for the jury. Thus, in Brend v. Dale (a), where the carrier set up the defence that the sender expressly agreed to accompany and watch the goods, and that the loss was caused by his failing to do so ; Lord Abinger left it to the jury to say whether the loss arose from the negligence of the plaintiff, or from that of the de- fendant; and stated that, according to the finding, the verdict would be entered for the former or for the latter. Before concluding this portion of the subject, it may be desirable to state that questions have arisen as to the right of an owner to sue a third party who has caused the damage during the transit. The questions have generally arisen where the owner of the goods, or a passenger, has sustained damage by a collision during the transit ; but the cases are clearly applicable to damage by such third party to goods in the custody of the carrier. Where the damage is caused wholly by the negligence of such third party, he will clearly be hable for the full amount to the owner or to the carrier; but where the damage has been caused wholly, either by the negligence of the owner or the carrier, such third party will not be liable. Where also the negligence is apportionable between the owner or (y) Toovey v. London, Brighton (z) Brend c. Dale, 2 M. & W. 775. and South Coast Railway, 27 L. J. (a) 2 M. & R. 80. S9, C. P. FOR NEGLIGENCE, ETC. 159 the carrier on the one hand, and sucli third party on the other, the latter will be liable, or not liable, according to the rules already stated to exist in a similar issue between the owner and the carrier (a). But it was uncertain until lately how far such third party is liable where the owner or passenger is innocent, and the negligence distributable between the carrier and third party ; as where an accident is caused by a collision, or by the carrier racing with another carrier. It has been stated, in a work of high authority (6), that "if two drunken coachmen were to drive their respective carriages against each other and injure the passengers, it is inconceivable that each set of passengers should, by a fiction, be identified with the coachmen who drove them, so as to be restricted for remedy to actions against their own driver or his em- ployer." But it has since been decided, that no action lies for the passenger against the other carrier ; and that, having deliberately chosen his conveyance and his driver, he must be bound by the acts of the latter, and be identi- fied with his negligence (c). In that case the plaintiff's testatrix was stepping incautiously out of an omnibus, while the defendant's omnibus was passing ; and it ap- peared also, that the omnibus, in which she was, had also drawn up incautiously. At that moment the de- fendant's omnibus, which was not proved to have been driven incautiously, drove past, and the testatrix was run over and killed. The learned judge told the jury, that if they thought the injuries caused by an accident, or that the deceased was wanting in care, or the driver of the omnibus, in which she was had been so wanting; or that either the deceased or the driver of his omnibus had conduced, by want of care, to the accident; the verdict must be for the defendant, notwithstanding that he had been also guilty of negligence. The court approved of (a) Bridge v. Grand Junction (b) 1 Smith's Leading Cas. 132 a. Railway Company, 3 M. & W. 244; (c) Thorogood v. Bryan, 8 C. B. supra, p. 156. 115. 160 ON THE LIABILITY OF CARRIERS this direction. The judgment of Maule, J., is important. Referring at the outset to Bridge v. Grand Junction Railway Company, his Lordship said : " The Court of Exchequer there seem to have thought — though it was not necessary to decide it — that where there is negligence on both sides the action cannot be maintained. Although I at one time entertained a contrary impression, upon further consideration, I incline to think that, for this purpose, the deceased must be considered as identified with the driver of the omnibus in which he voluntarily became a passenger, and that the negligence of the driver was the negligence of the deceased. If the deceased himself had been driving, the case would have been quite free from doubt. So there could have been no doubt, if the driver had been employed to drive him, and no one else. On the part of the plaintiff it is suggested, that a passenger has no control over the driver. But I think that cannot with propriety be said. He enters into a contract with the owner, whom, by his servant the driver, he employs to drive him. If he is dissatisfied with his conveyance, he is not obliged to avail himself of it. Ac- cording to the terms of his contract, he unquestionably has a remedy for any negligence on the part of the person with whom he contracts for the journey. It is somewhat re- markable, that actions of this sort are almost invariably brought against the rival carriage or vessel ; which is only to be accounted for by that party spirit which, more or less, enters into every transaction of life. If there is negligence on the part of those who have contracted to carry the passengers, those who are injured have a clear and undoubted remedy against them. But it seems strange to say that, although the defendant would not, under the circumstances, be liable to the owner of the other omnibus for any damage done to his carriage, he will still be responsible for an injury to a passenger. The passenger is not without remedy. But as regards the present defendant, he is not altogether without fault. He FOR NEGLIGENCE, ETC. 161 cliose his own conveyance, and must take the consequences of any default of the driver whom he thought fit to trust. For these reasons, it seems to me that the ruhng of my brother WiUiams was quite correct." But a plaintiff in such a case will not be disentitled to recover against a third party, merely because his own car- rier has been slightly imprudent, unless the jury should think that such imprudence substantially caused or con- tributed to the damage. Thus, w^here the omnibus, in which the plaintiff was, was racing with that of the defendant, which, in trying to pass a cart rapidly, came in contact with the first, and caused the damage : the jury found that the collision was entirely owing to the carelessness of the driver of the second omnibus, and the defendant was held liable {d). A distinction has been engrafted on Thorogood v. Bryan, which appears to amount to the principle, that, where a third party seeks to clear himself by showing that the damage was partly caused by the negligence of the em- ployer, or his carrier, such partial damage must be the proximate, and not merely the remote, result of the em- ployer's or carrier's negligence. In Greenland v. Chaplin (e), the damage was caused to the plaintiff by the defendant's negligence, in consequence of which the steamboat of the latter struck the bow of the boat where the plaintiff was standing, and knocked down an anchor, which conse- quently fell, and broke the plaintiff's leg. It was con- tended for the defendant that the plaintiff had contributed to the accident by his negligence in standing near the anchor; and also, that it would not have fallen if it had been properly stowed. But neither of these propositions had been proved or found at the trial ; and the court seems to have thought that, even assuming them as facts, they did not prove any negligence, which could be taken " in any degree to have contributed to the immediate cause of the accident ;" and that "a person who is guilty of negli- (rf) Rigbyr.H^witt, SExch. 210; (c) 5 Exch. 243; 19 L. J. 293, 19 L. J. 291,Exch. Exch. M 162 ON THE LIABILITY OF CARRIERS gence, and thereby produces injury to another, has no right to say, * Part of that mischief would not have arisen if you yourself had not been guilty of some negligence.'" But Pollock, C. B., in thus dehvering the judgment of the court, doubted " whether a person, who is guilty of negli- gence, is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and that no reasonable person would have anticipated. Whenever that case shall arise," his Lordship said, " I shall certainly desire to hear it argued, and to consider whether the rule of law be not this : that a person is expected to anticipate and guard against all reasonable consequences ; but that he is not by the law of England expected to anticipate and guard against those which no reasonable man would expect to occur." It will be apparent that this doctrine in no way clashes with Thorogood v. Bryan ; but is only a more distinct enunciation of the principle of Butterfield v. Forrester, that one man's carelessness will not justify another man's negligence, unless both parties are active agents in the damage. In this respect the person who actively causes the damage is hable, unless the person who suffers it could, by ordinary foresight and prudence, have anticipated, expected, and provided against the accident (y^. In the event of accidents, as by fire, in the case of railway and other companies, who have statutory powers to use locomotive engines, or to do other acts which are necessarily productive of some risk and danger; there is no liability for damage, unless it be caused or accompanied by express and actual negligence in fact {g). Before closing this chapter it may be well to notice the right of countermand which an owner or passenger retains (/) Tuff V. Warner, Sc. Cam ,5 H. & N. 679 ; 29 L. J. 247, Exch. ; C. B., N. S. 573 ; 27 L. J. 322, C. P. Sc. Cam. Cowley v. Mayor of Sutl- er) Green t). London General Om- derland, 30 L. J. 127, Exch.; Hole nibus Company, 29 L. J. 13, C. P.; v. Sittingbourne Railway, 30 L. J. Vaughan v. Taff Valley Railway, 5 81, Exch. i FOR NEGLIGENCE, ETC. 163 throughout the transit. When goods are dehvered to a carrier, or other bailee, for hire, and he is instructed to deal with them in a particular manner, he is bound to deal with them in such manner, unless he expressly dissents, and receives a modification of the order before he accepts them (A). But every contract with a carrier is also subject to an implied right of countermand, which the sender has a right to exercise at any point before the termination of the transit; and if the carrier, or his agent, after having received such countermand, forward the goods to their original destination, he will be liable for a breach of con- tract. "If a carrier undertake to carry goods from A. to B., he does so, subject to a right in the owner to counter- mand the direction at any point of the journey ; and though he may be bound to pay the carrier for his trouble, yet the latter has no right to carry them further against the will of the owner of the goods" {i). There goods were delivered to the defendants to be sent to London and for- warded to Australia; but before the goods arrived in London, the plaintiff countermanded the order to forward them to Australia. The goods were notwithstanding for- warded to Australia and lost. It was held, that the plaintiff had a clear right to give the countermand : and that the defendants were liable for not obeying it. In this case the defendants would apparently have been equally liable, if there had been no countermand, for a non-deli- very or neghgent delivery; but the legitimate inference from the case appears to be, that when a carrier has received a countermand, and does not comply with it, all his sub- sequent acts are in the nature of negligence ; and he will be liable for all the expense and proximate damage which may result to the owner from the non-compliance with the countermand. It was intimated, however, in the above case, by Maule, J., that there may be cases in which a carrier will not be (/() Struteri). Horlock, 1 Bing. 34. StafTorJshire Railway Company, 8 (i) Parke, B., Scothorn v. South Exch. 311 ; 22 L. J. 121, Exch. M 2 164 ON THE LIABILITY OF CARRIERS liable for disobeying an unreasonable countermand. His Lordship said : " A carrier is employed as a bailee of another's goods to obey his directions concerning them ; and I have no hesitation in saying, that, generally, at any period of the transit, he may have them back. It may, indeed, be different when the subsequent direction to the bailee is unreasonable. I can conceive a case, where goods having been put into a place from which they could not be removed w-ithout the greatest inconvenience, the carrier would be entitled to refuse to deliver them up before the end of the journey. But I think that if a traveller by railway is dissatisfied with his mode of travel- ling, he may at any point stop and require that his luggage should be delivered to him." It is on this principle, apparently, that where a carrier con- tracts specially to carry a passenger or goods from A.toB., at a fixed charge, the passenger has still a subsisting com- mon law right to be put down, or to have his goods de- livered, at any point of the transit where the carrier stops, or where it is reasonable that he should stop ; and this, although the passenger or owner knew, when he contracted with the carrier, that the fare of the latter to the ulterior point was less than the fare to the intermediate point. Thus, in Reg. v. Frere {k), by a bye-law of a railway com- pany, which was binding on the defendant, no one had a right to travel on the line without having previously paid his fare for the distance which he meant to travel. On the day of the journey the fare to Norwich by the railway was 5s., and the fare to Diss, a shorter distance than Norwich, 7s. The defendant, intending to travel only to Diss, paid the less fare for a ticket which entitled him to travel to Norwich. He got out at Diss, and ten- dered his ticket to Norwich ; but the defendants claimed 2s. more for the difference of the fare to Diss. There was no doubt that the defendant knew of the company's arrangements, and intended to deprive them, when he (k) 24 L. J. 68, M. C. FOR NEGLIGENCE, ETC. 165 took his ticket, of the 2s. ; without the payment of which they might have refused to give him a ticket to Diss; but it was held, that, having issued the ticket, they could not prevent the defendant from leaving the train at any point of the transit where it stopped, and that they had no right to demand the additional 2s. at Diss. It will be observed, that, in this case, according to the bye-law, the defendant, before entering the train, was to pay his fare and " be furnished with a ticket, specifying the class of carriage and distance for which the fare has been paid ;" and to incur a penalty if he should " enter the carriage without having previously paid his fare." The question was, whether the penalty had been incurred, on a case which showed that the defendant had paid the fare for the longer distance, but not for the shorter distance. It was held, that having paid for the longer distance, he had, by necessary implication, paid for the shorter distance ; and that, on the face of the bye-law, and apparently at common law, the company, when they issued the ticket, had no right to demand any larger sum ; not even if they had been aware of the defendant's intention to stop at Diss. Such, at least, appears to have been Lord Campbell's view ; but his Lordship expressly guarded himself from expressing an opinion " as to the power of the company to make special regulations or bye-laws so as to enforce larger fares for shorter distances." ( 166 ) CHAPTER IX. ON THE LIABILITIES OP CARRIERS FOR THE NEGLIGENT OR FELONIOUS ACTS OF THEIR SERVANTS AND OTHER AGENTS. Carriers are liable generally for the wrongful acts of their servants, according to the rules which govern the relation of master and servant. Carriers are similarly liable for the acts of their agents, according to the rules which govern the relation of principal and agent. The rule in such cases is respondeat superior. The principle of this liability is, that the act of an au- thorized agent is virtually the act of his principal : qui facit per alium facit per se. Therefore, whenever a servant or agent is invested, either expressly or by implication, with an authority to do an act, the law simultaneously transfers it, with its included responsibilities, from the merely instrumental volition and action of the agent, to the motive and directing mind of the principal. Accordingly, the liability of the principal in such a case is exactly com- mensurate with the authority delegated to the agent. The principal is liable as long as the act of the agent is within the limits of such authority ; and he is not liable when the agent is found to have overstepped those limits (a). " No master is chargeable with the acts of his servant, but when he acts in execution of the authority given by his master ; and then the act of the servant is the act of the master" ih). There appears to be, practically, no distinction between (a) Coleman v. Riches, 16 C. B. (i) Holt, C. J., Middleton v. 104; 24 L. J. 125, C. P. j Sharrod Fowler, 1 Salk. 282; Lyons v. V. North -Western Railway, 6 Railw. Martin, 8 Ad. & El. 512. Cas. 239. ON THE LIABILITIES OF CARRIERS, ETC. 167 the liability of a principal for the act of an agent, as dis- tinguished from his liability for the act of a servant (c). And whether the relation be that of principal and agent, or of master and servant, a carrier is equally liable for all damage, caused by the agent or servant, in the course of his employment. The modern cases on this branch of the Law of Carriers support this view {d) ; and the courts have treated the liability of the carrier as depending entirely on the amount of authority which he may be presumed to have intrusted to his representative, whether a servant, or an agent, or a sub-contractor. Thus it has been seen that, where a carrier receives goods to be delivered beyond the limits of his own transit, he is liable, in the character of a principal or master, for their safe delivery, and proper treatment by an ulterior carrier to whom he intrusts them at the terminus of the first transit (e), unless he expressly limit his liability to the terminus of his own transit (/). But where a subsequent carrier, or another person acting for the principal carrier, is neither an agent nor a servant, nor a sub-contractor, over whose conduct the principal carrier has a right to exercise a direct personal control ; but holds a distinct character as a separate contractor who, although liable for a breach of contract, is not liable to the direct supervision and personal intervention and control of the first carrier ; it would appear that there is not such a privity between the parties as to render the first carrier necessarily hable for the acts of the second carrier. In such a case it seems to be a question of evidence whether the contract is between the first and the second carrier, or (c) Sadler «. Henlock, 4 El. & Bl. Preston, &c. Railway, 8 M. & W. 570; 24 L.J. 138, Q. B.; Haselert;. 421; Scothorn v. South Stafford- Lemoyne, 28 L. J. 103, C. P. shire Company, 8 Exch. 341^; supra, (d) Coleman v. Riches, supra ; Chapter V. ; Collins v. Bristol and cf. Mitchell v. Crasweller, 13 C. B. Exeter Railway, 29 L.J. 185, Exch., 237; Lygo v. Newbold, 9 Exch. H. of L. 302; Seymour v. Greenwood, 9 W. (/) Fowles v. Great Western R. 519. Railway, 7 Exch. 699 ; 22 L. J. 76, (e) Muschamp v. Lancaster and Exch. 168 ON THE LIABILITIES OP CARRIERS FOR THE NEGLIGENT between the employer and the second carrier. Thus, it is a principle, that, where A. employs B. to do work, which B. contracts to do, A. is not liable for damage caused by the negligence of a servant whom B. has employed to do the work ; and this doctrine has been held to apply even where A. had a special power to discharge B.'s servant for in- competency ig). But it will be a question of evidence whether the relation in such a case be that of principal and agent; or that of separate contractors, who have no general right to dictate or control the manner in which the trans- action is to be performed {h). If the agent should appear not to be legally such, but a distinct contractor, the prin- cipal will not be liable unless the act be unlawful {i). Generally the courts do not favour the argument that a person is a contractor for another, and not an agent or servant. Thus, where the defendant employed specially an apparently competent person to clean a drain ; and the latter, by his negligence in the course of the employment, injured the plaintiff; the relationship of master and servant was held to exist sufficiently between the defendant and his employee to render the former liable for the negligence of the latter; although the defendant had taken no part in the superintendence of the work. The defendant might have superintended ; and this privilege appears to constitute the liability in such cases. Lord Campbell, C. J., said: "Whether the defendant is liable or not for the negligence, depends upon whether Pearson is to be considered as his servant at the time. If a domestic servant, in the regular employment of the defendant, had been ordered by the defendant to go and clean the drain, no doubt he would (g) Reedie v. London and North- (/«) Peachey v. Rowland, 13 C. B. Western Railway, 4 Exch. 256 ; 20 182 ; 22 L. J. 81, C. P. ; Wiggett v. L. J. 65, Exch.; Birkett v. White- Fox, 25 L. J. 188, Exch.; Hole v. haven Company, 28 L. J. 348, Exch. Sittingbourne Railway, 30 L. J. 81, As to hackney coach drivers, see Exch. ; cf. supra, p. 162. Powles i;. Hider,25 L. J.331,Q.B.; (i) Ellis v. Sheffield, &c. Cotn- ferryman, Dalzell v. Tyrer, 28 L. J. pany, 2 EIL & Bl. 767; 23 L. J. 52, Q. B. 42, Q, B. OR FELONIOUS ACTS OF THEIR SERVANTS, ETC. 1G9 have rendered his master liable. Then what difference does it make that, instead of his domestic servant, the de- fendant employs Pearson, a common labourer, to do the job ? It appears clearly that Pearson was doing the work under the defendant's own direction. The defendant might have told him to do it with hard stuff, or he might have superintended the job himself, and given directions until it was completed ; and if so, Pearson was his servant pro hac vice, and the defendant liable as master" {k). On the other hand, whenever it appears that the work has been done for a principal by a contractor, with whose general management of the transaction the principal had no right to interfere, and which he had no right to control, it is held that the principal is not liable for damage done by the contractor or his servant (/). The liability of carriers, who are not common carriers, for the acts of their agents, corresponds with the doc- trine of the preceding cases. Thus it was virtually de- cided in an earlier case(m), that a special carrier for hire is liable for his servant's negligence, in the course of his employment, as soon as the relation of master and servant is established : but that a person who employs such a carrier to perform a distinct duty is not liable for the negligence of the carrier's servant. The liability of a common carrier for the acts of his servants seems to depend on the extent of his character as an insurer. If a servant, in driving his master's coach, by his neg- ligence runs against and injures another coach, his master is responsible for the injury to the injured coach {n). But to create this responsibility there must be distinct evidence {k) Sadler «. Henlock, 24 L. J. land, 13 C. B. 182; Wiggett r. Fox, 138, Q. B. ; 4 Ell. & Bl. 570 ; s. v. 25 L. J. 188, Exch. Gayford v. Nicholls, 9 Exch. 70; 23 {m) Milligan v. Wedge, 12 Ad & L. J. 205, Exch. ; Steil v. South- Ell. 737, referred to and approved Eastern Railway, 16 C. B. 550. in Sadler v. Henlock. (0 Knight V. Fox, 5 Exch. 721 ; (h) Story, Bailm. s. 222; Laugher Overton v. Freeman, 11 C. B. 8G7 ; v. Pointer, 5 B. & C. 547. 21 L.J. 52, C. P. ; Peachey v. Row- 170 ON THE LIABILITIES OF CARRIERS FOR THE NEGLIGENT of a relationship of master and servant. Therefore, where the coach belonged to A., and the horses and servant to B., it was held that B. and not A. was responsible for the damage done by the servant, although he wore A.'s livery (o). So if the servant be unskilful in the management of the horses (p) ; or entrusts the reins to a stranger {q) ; or de- viates in any way from his strict duty, without acting in open defiance of it ; as when he diverges from his proper route (r), or injures a passenger while setting him down carelessly (s) ; or even, it is said, when he drives in a totally opposite direction to that in which he has been ordered to drive (t) ; the master has been held liable for consequential damage. But it may be doubted whether the last cited case does not trench on the equally well-established prin- ciple, that the master is not liable when the servant acts without orders, or in defiance of his orders ; or when he commits an unlawful act which the master is not shown to have authorized (?<). In such a case the jury ought to be asked whether the master authorized the act, expressly or impliedly, and the verdict will be accordingly {x). If the accident be to a servant by the negligence of a fellow servant, or by an accident in the course of the service, the master generally will not be liable unless the negligence can be traced to him personally (y). Generally, when it is sought to hold a carrier liable for (o) Quarman v. Bennett, 6 M. & Lyons v. Master, 8 A, & E. 512 ; W. 499. Attorney-General v. Seddon, 1 C. (p) Chandlery. Broughton, 1 C. & J. 220. & M. 29. (a) Goodman v. Kennell, 1 M. & {q) Booth V. Marten, 7 C. & P. P. 241. 66. (y) Wiggett V. Fox, 11 Exch. (r) Joel V. Morrison, 6 C. & P. 832; 25 L.J. 188, Exch.; Vose v. 501. Lancashire and Yorkshire Railway, (s) Seymour v. Greenwood, 9 W. 27 L. J. 249, Exch. ; s. v. Roberts v. 1^-519. Smith, 26 L. J. 319, Exch.; So. (0 Heath v. Morison, 2 M. & R. Cam. Griffiths v. Gidlow, 27 L. J. 181- 405, Exch. ; Riley v. Baxendale, 30 («) Joel V. Morrison, supra ; L. J. 87, Exch. OR FELONIOUS ACTS OF THEIR SERVANTS, ETC. 171 the act of his agent, it must appear, first, that there was an agency created or countenanced by the carrier; and, secondly, that the act was within the scope of the agency. First, the existence of the agency may be proved by circumstantial facts ; and, generally, when it appears that a man has acted as an agent for another, or that such other person has adopted an unauthorized act, a presumption is raised that he was duly authorized ; and it will lie on the adverse party to plead and prove a want or excess of authority {z). Thus, in Syms v. Chaplin (a), it was held, that an agency may well be created constructively by circumstances which show either a direct appointment, or an acquiescence in the acts of a person professing to act as the agent of a party. But the fact must raise a presumption of a general or special agency ; and where a contract is in question, there must be reasonable grounds for presuming that the principal had authorized, or intended to ratify, the act of the agent (b). So, in such a case, if it appear that the servant, although apparently acting as the agent of the carrier, was really acting independently and on his own account, the carrier will not be liable. Thus, where a carrier's waggoner received a parcel to carry for his own private gain in the defendant's waggon, the defendant was held by Garrow, B., not hable for the loss (c). The learned judge held it "clear that if persons be foolish enough to send parcels by a waggoner, for a hire paid to him, which is never intended to find its way into the pocket of the owner of the waggon, then the owner is not liable in case the parcel is lost;" and it appears to have been thought by the learned judge that, in such a case, no authority can be implied to have passed from the carrier to the servant (z) Smith V. Birmingham Gas (b) Lord Ellenborough, Olive v. Company, 1 Ad. & Ell. 526. Eames, 2 Stark. 182. {a) 5 Ad. & Ell. 634. (c) Butler v. Basing, 2 C. & P. 613, 172 ON THE LIABILITIES OF CARRIERS FOR THE NEGLIGENT to receive aoods on such terms — at least when the customer knowingly participates in the transaction. Secondly, it must appear that the agent or servant was acting, either within the scope of the authority delegated to him by the principal, or within the course of his ordinary duty. But, as soon as the agency is established, the liability of the master begins for all damage which may occur during its continuance, and within its limits. In such a case the principal is solely liable for the con- sequences of the negligence of the agent ; and the principal is the proper person to be sued {d). The agent is not liable. Thus, in Cavenagh v. Such (e), the defendant was the head porter of an inn ; and, in that capacity, it was his duty to receive parcels and deliver them for the pro- prietor of the inn. It was held, that no action lay against the defendant for a loss by negligence while he was acting in the course of his duty as porter. There appear, however, to be some doubtful authorities for the position that the principal and agent may be sued jointly for damage caused by the negligence of the latter. This doctrine seems very questionable ( /). Where the agent exceeds his authority, he will generally be solely liable for damage arising by his act beyond the limits of his authority as agent, and the principal will be discharged (g). In such a case the agent will be con- sidered as carrying on his own account (h). It will be presumed that a duly appointed agent has authority to do all acts within the reasonable scope of his agency ; and it appears that this rule is construed strictly and beneficially, for the customer against the carrier. Thus, where it appeared that the superintendent, and also (d) Williams v. Cranston, 2 Stark. C. & P. 383. 82. (g) Collen v. Wright, Sc. Cam. 27 (e) 1 Price, 328 ; Lyons v. Martin, L. J. 215, Q. B. 8 A. & E. 512. (h) Williams v. Cranston, 2 Stark. (/) Whitamore v. Waterhouse, 4 84; Butler v. Basing, 2 C. & P. 613. OR FELONIOUS ACTS OF THEIR SERVANTS, ETC. 173 the director, of a railway had refused to dehver the plain- tiff's goods to him, it was held that, as it was the duty of the railway to have officers to determine similar trans- actions, proof of the refusal to deliver was evidence from which a jury might infer such a negligence and nonfeasance by an agent in the course of his duty as would fix a liability on the railway company ; and it was held, that this in- ference might be drawn without evidence necessarily of the nature and extent of the agent's duty (i). The judgment in this case proceeded on the principle, that it is the duty of a railway or other carrier to have a superintending officer or agent to transact the business which the agent in the case was proved to have transacted ; and that, there- fore, evidence of an act by a person, whose general agency is unimpeached, is evidence of authority in the particular case (k). But where a station master employed medical attendance for injured passengers, it was held, that the company was not bound by his contract, as there was nothing incident to his employment which raised a presumption of con- structive authority to bind the company in such a case (Z). So, where there is distinct evidence that the agent exceeded his authority, the carrier will not be bound. Thus, in Slim v. The Great Northern Railway Com- pany (m), by the course of business, which was known to the plaintiff, the defendants carried goods only according to the terms of a written contract, by which the carrier was freed from liability. The plaintiff, without entering into such written contract, delivered goods to a servant of the defendants, who promised to take care of them. The defendants were held not liable for subsequent damage, on the ground, first, that the servant had not absolutely (i) Taff Vale Railway Company (/) Cox i'. Midland Railway, 3 V. Giles, 2 Ell. & Bl. 823 ; 23 L. J. Exch. 268 ; 18 L. J. 65, Exch. ; s. v. 43, Q. B. Goffj;. Great Northern Railway, 30 (/f) Cf. Eastern Counties Railway L. J. 148, Q. B. V. Broom, Sc. Cam. 6 Exch. 314; 20 (m) 14 C. B. 647 ; 23 L. J. 166, L.J. 196, Exch. C. P. 174 ON THE LIABILITIES OF CARRIERS FOR THE NEGLIGENT contracted with the plaintiff; and, secondly, that if he had so contracted, he had no authority to contract, especially when the want of such authority was known to the plaintiif. The distinction between this case and the pre- ceding one appears to be, that, when the circumstances of a case establish a general agency, a jury may infer that it contains a special authority which reasonably belongs to the agency; but where the facts show that a customer deals with an agent on terms which, he ought to know, exceed the agent's authority, there is no evidence to support the presumption of a special agency. In such cases it appears, that an actual or constructive knowledge in a cus- tomer that an agent is exceeding his authority is essential to free the carrier from liability. But there are cases very similar to Shm v. The Great Northern Railway Company, in which, notwithstanding a customer's knowledge of the written, or otherwise ascer- tained, regulations of a carrier's course of business, an authorized agent, in the course of his ordinary duty, may, under special circumstances, so far dispense with such regulations as to render his principal liable. At least it would appear that such special circumstances are evidence from which a jury may infer an authority to the agent to bind the principal, notwithstanding the customer's conscious participation in the breach of the regulations. But in such a case, much appears to depend on the departure from the regulations being in accordance with a course of practice which the carrier has suffered to grow up at variance with such regulations. Thus, in Richards v. London and South Coast Railway {n), it appears to have been thought that the duty of the carrier, in delivering luggage to passengers, was satisfied by a delivery on the platform ; but that, if the course of business was to deliver into carriages, the carrier's liability continued until the luggage was placed in carriages. WilHams, J., said : " I do not mean to give an opinion whether the defendants were («) 7 C. B. 839 ; 18 L. J. 251, C. P., and supra, p. 42. OR FELONIOUS ACTS OF THEIR SERVANTS, ETC. 175 obliged to do more than deliver the luggage on the plat- form. But I think, if they oblige passengers by allowing their servants to carry luggage to coaches, their liability continues." The same rule holds where the practice exists, although the carrier's servant be acting out of his own department, and although the customer do not part with the manual possession of goods until after the virtual termination of the transit. Thus, in Butcher v. London and South-Western Railway (o), the passenger retained the goods during the transit, and delivered them on the arrival of the train to a lamp-cleaner, who offered to put them in a cab, and who was a servant of the company, but not a regular porter ; and the defendants were held liable. A still stronger illustration of the principle is found in The Great Western Railway v. Goodman {p), where a by-law which was specially binding on the public, and by which the carrier was not to be liable for goods which were not booked, was held not to take away the carrier's liability for goods which his servant received to be carried without being booked. So, in The Great Northern Railway Company v. Harrison {q), the carrier was held liable for damage to a passenger who was travelling with a know- ledge that he was infringing the regulations of the company; but who was found to have been admitted into the train by an agent, under an irregular course of practice, by which such persons as the plaintiff were suffered to travel. It will be observed that in each of these cases the whole question was one of agency, and that the jury were permitted only to infer a special and extended authority from the acquiescence of the carrier in a course of practice which was at variance with the actual authority delegated to the agent. They are cases, therefore, in which the excess of authority, although not in the course of duty, was held to have been adopted by the principal. (o) 16 C. B. 13; 24 L. J. 137, (?) 10 Exch. 376; 23 L.J. 308, C. P. Exch. {p) 12C. B. 313. 17C ON THE LIABILITIES OF CARRIERS FOR THE NEGLIGENT It is difficult to draw the line between those acts of negligence in a servant, in the course of duty, for which a principal is liable, and those wilful acts, for which the car- rier is not liable. If the damage be caused by the servant while he is apparently and virtually, although erroneously, discharging the duty entrusted to him, the master is liable. But if there be a clear violation of an express order or regulation, and the act be not merely an excess of autho- rity and a deviation from a positive duty, but also a clear infraction of a customary and definite course of business ; there will be evidence from which a jury may infer such a wilful breach of duty as will exculpate a carrier by satis- fying them that the act is of that peculiar and wilful cha- racter, intermediate between negligence and felony, for which the servant is solely and personally responsible (r). Generally, it is the disposition of the court to hold a carrier bound by any act of an agent who appears to be acting in the course of a duty. Thus, in Wingfield v. Packington (s), Lord Tenterden held, that a carrier could not demand a higher charge than the clerk had agreed to take, although the clerk had exceeded his authority in a2:reeino; to take so low a charge. Where the carrier contracts specially that he will not be liable for any risk whatever, he will not be liable for damage caused during the transit by the gross or culpable negligence of his agent or servant (t). So, where the re- quirements of the Carriers' Act have not been observed by the customer, the carrier, it appears, is not liable even for the gross negligence of his agent or servant («). The liability of Carriers for the felonious acts of their Servants. The 8th section of the Carriers' Act provides that : (r) Infra. 179, C. P.; supra, Chapter VIII. (.!) 2 C. & P. 599. («) Hinton v. Dibbin, 2 Q. B. {t) Austin V. Manchester, &c. Q^Q, and supra, p. 151. Railway, 10 C. B. 4-54; 21 L. J. OR FELONIOUS ACTS OF THEIR SERVANTS, ETC. 177 " Nothing in this act shall be deemed to protect any mail contractor, stage-coach proprietor, or other common carrier for hire, from liability to answer for loss or injury to any goods or articles whatsoever, arising from the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his or their employ, nor to protect any such coachman, guard, book-keeper, or other servant from liability for any loss or injury occasioned by his, her, or their own personal neglect or misconduct." At common law it appears that a common carrier, in his character of insurer, is liable absolutely for loss or damage caused by the felonious act of his agent or servant. No other doctrine is apparently reconcilable with the funda- mental liabilities of common carriers {y). But it is equally true that this doctrine has been rendered somewhat doubtful by recent cases. In Machu v. London and South- Western Railway Company {z), the declaration was for lost goods above the value of 10/. The plea set up the Carriers' Act and non-disclosure of value; and the replication stated merely that the goods were feloniousli/ stolen by the servant of the defendants. The substantial question before the court was, whether the servant of a sub-contractor could be treated as a servant of the defendants, and it was decided that he could. But the court appear also to have taken it for granted that a carrier is liable in all cases for the felony of his servant. Pollock, C. B., said : " The object of the statute was, undoubtedly, to give protection to carriers in cases of small parcels of great value being delivered to carry; and the legislature has said that they shall not be liable for loss unless an extra price by way of insurance is paid ; but then, by way of protection to the public, the legislature has also said that, whether insured or not, the carrier shall still be liable if the loss has occurred through the felonious act of a coachman, guard, book-keeper, porter, or other servant in his employ." Rolfe, B., said: "It is (y) Cf. Phillips V.Clark, 2 C. B., (2) 2 Exch. 415 ; 17 L. J. 271, N. S. 156 ; 26 L. J. 168, C. P. Exch. 178 ox THE LIABILITIES OF CARRIERS FOR THE NEGLIGENT clear that, independently of the statute, the defendants would be liable for the loss as a breach of the duty they had undertaken to perform." The language of Parke, B., is still stronger and more explicit : " Suppose, in the pre- sent case, the bale of silk, instead of having been stolen, had been injured in consequence of the careless treatment of it by Johnson . . . can any one doubt that if the goods had been duly insured, the defendants would have been liable for the damage ? They would have been liable upon the ground that Johnson was their servant." Here it seems to have been assumed that both at com- mon law and under the Carriers' Act, 1 Will. 4, c. 68, a common carrier is liable for the larceny of his servant. But in Butt V. The Great "Western Railway Company (a), the declaration was against the defendants as common carriers, and claimed the value of a truss of silk of which the plaintiff alleged that he had been deprived by the gross negligence and the felonious acts of the defendants' servant. The plea set up a non-disclosure of value according to the requisitions of a special notice and contract: and a new assignment repeated the plaintiff's claim on the ground that the loss was caused by the felonious act of the defendants' servant, without any averment that the loss was also caused by the gross negligence of the defendants. On demurrer, the substantial question was, whether the de- fendants were liable for the mere felony of their servant ; or whether, in order to render them liable, there must not also have been gross or culpable negligence on their part. Maule, J., and Cresswell, J., appear to have thought, on the authority of Finucane v. Small (Z>), that a carrier, like an ordinary bailee for hire, is not liable for loss or damage by the felony of his servant, unless the carrier have also been guilty of " positive negligence." Maule, J., said : " Finucane v. Small shows that felony does not of itself prove gross negligence ;" and in reference to the case under (a) 11 C. B. 140 ; 20 L. J. 241, C. P. {b) 1 Esp. 315. OR FELONIOUS ACTS OF THEIR SERVANTS, ETC. 179 consideration : " It is necessary to show felony to get rid of the excuse under the Carriers' Act ; and gross negli- gence to make the carrier Hablefor felony." Cresswell, J., said : " The statute takes away the liability of carriers as to gross negligence in respect of the excepted articles, but has reserved it as to felony ; but it does not make the remedy, in case of felony, larger than at common law. If, therefore, it was necessary at common law to prove gross negligence as well as felony, it must still be so." Jervis, C. J., appears to have held the same opinion less strongly. His Lordship said : " It seems that there may be a possible state of cir- cumstances in which a carrier is not liable for the felonious acts of his servants, unless there be some act of the carrier himself tending to the loss." Ultimately the plaintiff had leave to amend his new assignment " by replying a loss through the gross negligence of the defendants, on the ground that the replication of felony alone is not sufficient ; otherwise judgment for the defendants." It is to be observed, that in this case the question of a common carrier's liabihty for loss by the felony of his servant was not raised directly ; but that the court ap- peared to doubt the doctrine, which has elsewhere been assumed to be true (c), that at common law the common carrier is liable in such a case, by virtue of his character as an insurer. But the actual question, as it has been stated by the Bench subsequently {d), was as to the liability of the carrier, when the value of goods has not been disclosed by the sender, in accordance with the terms of a special contract, by which the carrier is exempt from responsi- bility for loss or injury in the event of non-disclosure ; and not as to his responsibility, when he claims exemption, because the value has not been disclosed, in accordance with the requisition of the Carriers' Act. This state of the (c) Phillips V. Clark, 2 C. B., N. S. C. P. ; Metcalfe v. London, Brighton 1.56 ; 26 L. J. 168, C. P. and South Coast Railway, 4 C. B., (rf) Great Western Railways. N. S. 311 ; 27 L. J. 205, C. P. Rimniell, 18 C. B. 575 ; 27 L. J. 201, n2 180 ON THE LIABILITIES OF CARRIERS FOR THE NEGLIGENT controversy must be noticed carefully : as the language of the judges, in Butt v. Great Western Railway, seemed to imply that they treated this case as one under the Carriers' Act ; and as such it was considered accordingly in the first edition of this treatise. In Great Western Railway v. Rimmell (e), the case arose under the Carriers' Act ; and the defence was the non-disclosure of value, according to the requirements of the statute. The reply was, that the goods had been stolen by the servants of the defendants ; but of this alle- gation there was no proof: and the court held that, there- fore, judgment of nonsuit must be entered. The county court judge had told the jury that the plaintiff could not recover unless the neolio-ence of the defendants had contri- buted to the felony. But this was held to be a misdirection. Jervis, C. J., said : " When the defendants rely upon the statute for their defence, negligence has nothing to do with the question. The rule is this : under the statute, felony by a servant is a sufficient answer to the defence set up by the carrier ; and negligence has no effect one way or the other. When the defence is independent of the statute, negligence alone is a sufficient answer. Under the statute, felony is an answer ; under the carriers' notice, negligence is an answer. That is the result of the decision in Butt r. Great Western Railway. We only decided, that felony by the defendants' servant, without neghgence on their part, was not a good answer to a defence, that the value of the goods was not declared according to the notice." This case was followed by Metcalfe v. London, Brighton and South Coast Railway ( /"). There, also, the case was under the Carriers' Act ; the defence, that the goods were above the value of 1 0/., and that it had not been declared ; replication, a loss by the felonious acts of the defendants' servants. On demurrer, the replication was held good, and judgment given for the plaintiff. On a careful consideration of the preceding cases, the (e) Supra, p. 179. (/) Supra, p. 179. OR FELONIOUS ACTS OF THEIR SERVANTS, ETC. 181 following propositions of law may be submitted as pro- bably correct. 1. A common carrier, at common law, is responsible in his character of insurer for losses by the larceny of his servant. 2. A common carrier may exempt himself by special contract from liability for losses by the larceny of his servant. In this case, the carrier will not be liable, except when his negligence has contributed to the lar- ceny {g) : and there seems to be no reason why by apt words he should not exempt himself altogether from liability, even for gross negligence in such a case {h). 3. A special carrier for hire, like an ordinary bailee for hire, is not liable for the larceny of his servant without negligence; nor even then, according to the view in the last proposition, when he has stipulated properly, that he will not be liable for any kind of negligence (i). 4. Under the 8th section of the Carriers' Act it is settled, that, when the goods are such as are described in the first section, above the value of 10/., and the value undisclosed, the carrier is liable absolutely for the larceny of his servant: and it is immaterial whether the carrier have been guilty of negligence or not. This doctrine appears to apply to all carriers who use the statutory notice : and it follows, that if they wish to limit their liability, they can do so only by special contract (k). To complete this subject, it is necessary to anticipate a later chapter, and to state briefly the apparent liability of railway and canal carriers under the 17 & 18 Vict. c. 31. This liability appears to range itself, according to circum- stances, under one or other of the above four classes ; with the important exception, that, under sect. 7, and the cases (g) Butt V. Great Western Rail- & 48, n. (3rd edit.) way, supra, p. 178. {k) Great Western Railway v, (h) Supra, p. 149. Rimmcll, supra, p. 180. (i) Cf. Angell on Carriers, pp. 47 182 ON THE LIABILITIES OF CARRIERS, ETC. which will be noticed later, no condition nor contract will be held good, which professes to exempt the carrier from liability for gross or culpable negligence. When a plaintiff relies on the larceny of a carrier's servant, he must give distinct evidence that a larceny has been committed, " A mere suspicion that a loss has arisen by felony is not sufficient" (/); and the plaintiff cannot recover, unless he give evidence sufficient to convict the servant of felony (m). A carrier's liability for the felony of his agent's servant is precisely commensurate with his liability for the felony of his own servant. Where the carrier contracted to deliver at the door of the consignee; and the carrier, at the terminus of his own transit, delivered over the goods to a sub-contractor, by whose servant they were stolen during the subsequent transit ; the servant of the sub- contractor was held to be sufficiently a servant of the carrier, so as to affect the latter with a liability for the felony (n). Where there is any evidence, however slight, of a felony having been committed by a carrier's servant, it should be left to the jury to say whether a felony has been com- mitted ; and when this has been done, a new trial will not be granted, on the ground that the verdict is not supported by the evidence (o). (l) Per Cresswell, J., in Great («) Machu v. London and South- western Railway v. Rimmell, supra, Western Railway, supra, p. 177. p. 180. (o) Boyce v. Chapman, 2 Bing. (m) Metcalfe v. London, Brighton, N. C. 222. &c., Railway, supra, p. 179. ( 183 ) CHAPTER X. THE RIGHTS OF CARRIERS. The end of responsibility — What will excuse non-delivery — Adverse title — Stoppaye in transitu — Riyht of lien — Of remuneration. The rights of carriers are, for the most part, co-extensive with their duties and Habihties. As such they have been noticed, more or less distinctly, in the preceding chapters of this work. In the present chapter they will be re- capitulated briefly, or enunciated at length, according as they assume the form of repetitions, or of doctrines stated for the first time. It is plain, from the early chapters of this treatise, that as a carrier incurs no liability before goods have been de- livered to him, or before he has contracted to carry them ; so no liability can attach to him for damage which may happen to them after he has delivered them ; nor where the contract between him and his employer has been otherwise performed, rescinded, countermanded, or quali- fied by consent, or a subsequent contract. He will not be liable before the goods have been actually, or constructively, delivered to him ; nor after they have been actually, or con- structively, delivered by him. Whether the circumstances amount to a delivery under either alternative will be wholly a question for a jury (a). Generally, a bona fide tender will be a good delivery (Z>). A common carrier is bound to carry only such goods as (a) Quiggin v. Duff, 1 M. & W. You. 129; Crouch v. Great West- 174. ern Railway, 3 H. & N. 183 ; 27 (6) Storr i;. Crowley, 1 M'Cle. & L.J. 345, Exch., Sc.Cam. ] 84 THE RIGHTS OF CARRIERS. he has professed publicly to carry (c) ; and he may at any time retract and give public notice that he will no longer carry a particular kind of goods {d). It appears also, that, although prima facie he is an insurer, he may at common law, and at any time, limit his liability, either partially or wholly, by contracting expressly with his employer; but he cannot force such a contract on his employer ; and if the latter refuse to enter into it, and the goods are such as the carrier is in the habit of carrying, he will be bound to carry on the terms of his common law liability (e). Simi- larly he will be free from liability, if the requirements of the Carriers' Act have not been observed (/); or where goods are lost or damaged by the act of God or the king's enemies, but not where the loss or damage is caused by ordinary human agency, or by inevitable accident {g). As a carrier of passengers he is not an insurer (li), and he is liable only in the event of negligence ; and generally not even for negligence, if the passenger's own negligence con- tribute to the damage (z). Neither will he be liable where the damage is caused by the employer's fraud (k). A carrier who is not a common carrier, and who does not expressly insure or warrant the safety of goods, has 'the same immunities as common carriers, and also the additional immunity from liability for inevitable accident. Thus, he is not liable where goods are destroyed by fire or unavoidable accidents of the road, unless he be found to have caused or contributed to the loss by his negligence {I). Where the contract to carry is avoided by operation of law, the carrier will be excused ; but where there is merely a temporary legal obstruction, by which the carrier is pre- (c) Johnson v. Midland Railway, (/) Supra, Chapters VII. 4 Exch. 367 ; supra, Chapter IV., p. {g) Supra, Chapter VIII. 34. {h) Supra, Chapter III. {d) Ibid. (0 Martin 2;. Great Northern Rail- (e) Carrt). Lancashire, &c.. Rail- way, 16 C. B. 179 ; 24 L.J. 209, C. P. way, 7 Exch. 707; supra. Chapter (A-) Supra, Chapter VIII. VII., p. 95. (0 Supra, Chapter VIII., p. 127. THE RIGHTS OF CARRIERS. 185 vented from fulfilling his contract, such an obstruction will not justify a total non-fulfilment; but the carrier will be justified in not fulfilling during the continuance of the ob- struction, and will be bound to fulfil within a reasonable time after the removal of the obstruction. Thus, where a contract to carry was obstructed by an embargo on the vessel by an order in council, it was held, that the perform- ance of the contract was only suspended while the order remained in force ; and that the carrier was liable in damages for non-performance within a reasonable time after the embargo was taken off (m). But where the car- rier relies on the intervention of a legal impediment to excuse him, it must appear clearly in his plea that the impediment was of a strictly legal character ,• and, accord- ingly, where a plea alleges an obstruction by officers of the law, it must be averred and appear that they were duly constituted, and had authority to act(n). If it should appear that they acted without authority, the carrier will be liable to the consignee for the delay, and will have his remedy over against the offi^cers (o). Where the performance of the contract is physically impossible, it would seem that generally the carrier will be bound to pay damages for the non-performance of it {p). Where a loss or damage is traceable, wholly or partially, to the negligence of the employer, the carrier will not be liable. This doctrine is illustrated by a case in which the defendants were sued, as carriers, for injuries sustained by a passenger, who, in endeavouring to cross the railway of the defendants by the usual path, in order to enter the train, missed the way, and received the damage by falling against a switch handle. There was evidence that the station at the time was defectively lighted; and Maule, J., (>«) Hadleyz;. Clarke, 8 T.R. 259. (p) Brown v. Royal Insurance (n) Evans v.Hutton, 5 Scott, N.R. Society, 28 L. J. 275, Q. B. ; Hall 670. V. Wright, cf, Sc. Cam., E. B. & E. (o) Gosling V. Higgins, 1 Camp. 7(55; 29 L.J. 43, Q. B. ; cf. supra, 451. pp. 76 and 112. 186 THE RIGHTS OF CARRIERS. left it to the jury to say whether the damage was caused by the careless and insufficient management of the station generally; or, whether, as the defendants contended, it was owing entirely to the plaintiff's own negligence. The verdict was for the plaintiff; and a rule for a new trial, on the ground of misdirection, was discharged. Jervis, C. J., said : " Treatins; this as an action founded on neolio-ence, I admit that the plaintiff cannot recover, if by his own negligence he contributed to the injury of which he com- plains ;" and added, " that in such cases there are sub- stantially three questions to be determined : First (and this in reality includes the third), did the injury result solely from the defendants' neghgence ? Secondly, was the injury occasioned by the plaintiff's negligence, the de- fendants being free from all blame ? And thirdly, did the plaintiff contribute to the injury by his own negligence ? If the first question were answered in the affirmative the plaintiff would be entitled to succeed ; if the second or third were answered in the affirmative the defendant would be entitled to succeed. Strictly speaking, all three questions ought to be left to the jury." Cresswell, J., said : " I assume that although the jury rightly found that there was negligence on the part of the defend- ant, yet if it had been proved that the plaintiff, by the exercise oi reasonable caution, could have avoided the acci- dent, the defendants would have been entitled to the verdict." INIaule, J., said: " There were two propositions only contended for; the first, by the plaintiff, that the defendants alone were negligent, and were therefore liable ; the second, by the defendants, that the plaintiff alone was negligent, and that they, therefore, were not liable. Both those propositions were true and good law ; but it is now said, that it is also true that if there was negligence on both sides the plaintiff was not entitled to succeed. This certainly is true also" {q). It appears from this case, that it is the decided opinion of the Court of Common Pleas that a carrier is not liable {q) Martin v. Great Northern Railway, 16 C. B. 179 ; 24 L. J. 209, C. P. THE RIGHTS OF CARRIERS. 187 for damage which is caused either wholly or partially by the employer's negligence. But this doctrine, it is appre- hended, must be taken as subject to the restrictions laid down in Butterfield v. Forrester (r), and Boridge v. Grand Junction Railway (5); which cases have established the principle that the carrier will be liable, notwithstanding that the employer has caused or contributed to the damage, if the carrier might, by the exercise of ordinary care, have avoided the consequences of the employer's negligence (0. The authorities were given in the same chapter for the doctrine, that a carrier will not be liable where the owner of goods does not part with the possession of goods during the transit ; or where he resumes possession before its ter- mination ; or where he interferes imperatively in any way with the stowage or disposition of goods. But a carrier is not bound to comply with an unreasonable countermand, or an unreasonable interference with the disposition of goods during the transit (r). When the consignee of goods cannot be found, or where he refuses to accept the goods, or where there is any reasonable doubt as to the title of the person who claims as consignee, there appears to be no doubt not only that the carrier is justified in not delivering, but that it is his duty not to deliver under such circumstances. In such a case the carrier has a right to retain the goods as a ware- houseman until he receives further instructions from the consignor, who will be liable for the additional trouble and expense thus caused to the carrier. This is clearly the result of Stephenson v. Hart (5), where the carrier was held liable to the consignor for negligence in delivering to a wrong consignee. In all such cases the prudent course for the carrier to take will be probably to warehouse the goods, to com- (r) 11 East, 60. Railway, 8 Exch. 341 ; 22 L. J. 121, («) 3 M. & W. 248, Exch.; and see supra, p. 162. (0 Supra, p. 156. («) 4 Bing. 476 ; supra, p. 48. (r) Scothorn v. South Staffordshire 188 THE RIGHTS OF CARRIERS. municate with the consignor, and to await his instructions; but there is no rule of law by which he is bound to act thus ; and he is required only to take such a course as a jury may think to be reasonable under the circum- stances of each case. Thus, where the consignee of a cask of gin refused to receive it ; and the carrier, in- stead of giving notice of the refusal to the consignor, kept it for three months in a warehouse, at the end of which time it was found that part had escaped by leakage : it was held, that the judge was right in directing the jury to consider whether the defendants had taken a reasonable course under the circumstances, and whether they had been negligent in the custody ; and the court refused to disturb a verdict for the defendants in an action against them for the loss by the leakage (t). If the consignee refuse to receive the goods at the time when the carrier tenders them to him; or if the carrier refuse to deliver because the consignee refuses to pay the charge of carriage ; the carrier ought not to return the goods at once to the consignor or place of consignment ; but should keep them for a reasonable time, and in a reason- able place, to give the consignee an opportunity of coming to terms with the carrier. Where goods were consigned to the plaintiff at Plymouth, who refused to pay the carriage on the day when they were tendered, and the carrier then refused to deliver; and on the following day sent them back to the place whence they were consigned to him : and later on the same following day the plaintiff tendered the price of carriage under protest : the carrier was held to be liable for the loss of the goods on the return journey, as the jury found that they had been sent back before the plaintiff had had a reasonable time for demanding and receiving them (m). (0 Hudson V. Baxendale, 2 H. & Exch. ; aff. Sc. Cam. 27 L. J. 345, N. 575 ; 27 L. J. 93, Exch. Exch.; of. Giles v. Taff Vale Com- (?/) Crouch t). Great Western Rail- pany, 2 Ell. & Bl. 822. way, 2 H. & N. 491 ; 26 L. J. 418, THE RIGHTS OF CARRIERS. 189 After the carrier has kept the goods a reasonable time, if the consignee still refuse to accept, the carrier may either return the goods to the consignor, and sue him for the carriage; or may retain them as a lien for the price of carriage {x). Adverse Title. A carrier may often be placed in a difficult position when goods, which he has received to carry for an em- ployer, are claimed by a thii'd person. Such a claim may be either one of absolute ownership by a person who claims them as his own ; or by one who claims a lien, as where goods are stopped in transitu on the insolvency of the con- signee ; or it may be more strictly by operation of law, as where they are pursued by a landlord under a distress, or a sheriff under a Ji. fa. In such a case the prudent course for a carrier will be to avail himself of the Interpleader Act, 1 &: 2 Will. 4, c. 58. The general doctrine of adverse title is recondite; but the following principles appear to be established. " An agent must account to his principal, and cannot set up the jus tertii in an action by his principal against him (?/)." And therefore a carrier, like an ordinary bailee, cannot dispute his bailor's title. He holds for his employer; and if a third person set up a claim to them, the carrier will admit it at his peril. The case is similar to one in which goods, after having been sold by the defendant to the plaintiff', were claimed by a third person, and it was held, that trover lay for them (^). In this case there was no distinct evidence of the ownership ; and the ground of the decision was the general principle that the defendant had attorned to the plaintiff", had recognized his title, and could not therefore plead an adverse claim. So (a), where the defendant had admitted goods to belong to the plaintiff", it was held, that he was estopped from pleading and (x) Per Maule, J., Crouch y. Great (z) Kieran v. Sandars, 6 Ad. & Western Railway, 26 L.J. 420, Exch. Ell. 515. (y) Alderson, J., 9 Taunt. 383. (a) Gosling t;. Birnie,7 Bing. 339. 190 THE RIGHTS OF CARRIERS. showing that they belonged to, and had been claimed by, a third person. So Gould, J., and Lord Kenyon are re- ported to have held, that if a carrier receive goods he cannot set up the title of a third person against his con- signor or consignee (Z*). And although this doctrine is opposed to Ogle v. Atkinson (c), where Gibbs, C. J., held, that such a defence might be established ; the better view seems to be, as stated above, that, as between the carrier and his employers, such a defence is inadmissible (. Shipton, 8 Ad. & Ell. (A-) Hayman D.Raymond, 5 Taunt. 963; Marshall v. York and New- 289. castle Railway, IIC.B. 655; 21 L.J. ACTIONS AGAINST AND BY CARRIERS. 215 contract to carry safely and securely for hire (l) ; and the breach must be assigned distinctly. When the carrier is declared against as a common carrier, the contract may be treated and stated as implied ; in other cases, the contract should be stated expressly (»«)• Fleas in Abatement. By 1 Will. 4, c. 68, s. 8, no action or suit for damage for loss or injury to any parcel, package, or person shall abate for the want of joining any co-proprietor or co- partner {71). Payment of Money into Court. The 11 Geo. 4 & 1 Will. 4, c. 68, s. 10, enacts, that, in all actions to be brought against any mail contractor, stage-coach proprietor, or other common carrier, for the loss of, or injury to, any goods delivered to be carried, whether the value of such goods shall have been declared or not, it shall be lawful for the defendant or defendants to pay money into court in the same manner and with the same effect as money may be paid into court in any other action. T7ie General Issue. The New Pleading Rules, Hilary Term, 1853, ss. 6 and 16, determine the effect of non assumpsit and not guilty in actions against a carrier. Sect. 6 declares that : " In all actions on simple contract, except as hereinafter excepted, the plea of non assumpsit, or a plea traversing the contract or agreement alleged in the declaration, shall operate only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the contract, promise, or agreement alleged may be implied by law ; ex. gr. : — " In actions against carriers and other bailees for not (/) Max V. Roberts, 12 East, 89; (ot) Pozzi u. Shipton, 8 Ad. & Ell. Pianciani v. London and South- 963; Bowman y. Brown, 3 Q. B. 510. Western Railway, 18 C. B. 226. («) Cf. 15 & 16 Vict. c. 76, ss, 34^—40. 216 ACTIONS AGAINST AND BY CARRIERS. delivering or not keeping goods safe, or not returning them on request, such plea will operate as a denial of any express or implied contract to the effect alleged in the declaration, but not of the breach." The 16th rule declares that, " In actions for torts the plea of not guilty shall operate as a denial only of the breach of duty, or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement ; and no other defence than such denial shall be admissible under that plea ; all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration ; ex. gr. : — " In actions against a carrier, the plea of not guilty will operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant as a carrier for hire, or of the purpose for which they were received." This rule, therefore, corresponds with the decision in Webb v. Page (o), where, in case against a carrier for the negligent loss of goods delivered to him to be carried for hire, the plea of not guilty was held to admit the receipt of goods by the defendant, under a contract safely and securely to carry and deliver, and merely operated as a denial of the loss by the defendant's negligence. In trover, not guilty admits the property of the plaintiff; and, therefore, the defendant cannot under this issue raise any claim of title (p). In reference to this subject may be noticed the 15 & 16 Vict. c. 76, s. 74 (C. L. P. Act, 1852), which enacts, that " whereas certain causes of action may be considered to partake of the character both of breaches of contracts and of wrongs : and doubts may arise as to the form of pleas in such actions, and it is expedient to preclude such doubts : any plea which shall be good in substance shall not be objectionable on the ground of its treating the declaration (o) 1 Scott, N. 11. 951 ; cf. Elwell v. Grand Junction Railway, 5 M. & W. 669. (jp) Jones V. Davies, 6 Exch. 663. ACTIONS AGAINST AND BY CARRIERS. 217 either as framed for a breach of contract or for a wrong." On this section it has been remarked : " it may naturally be inferred from the language that if an action be brought against a carrier for the loss of a parcel, and the declaration be so framed as not clearly to show whether the plaintiff is complaining of a breach of contract or of a tort, the defendant will be equally safe in pleading non assumpsit or not guilty : and that the pleas, though differing in form, will be regarded as substantially setting up the same de- fence. The fact, however, is quite otherwise; for while the plea of non assumpsit will put in issue the promise, and admit the breach, the plea of not guilty will admit the bailment and deny the breach. This is obviously a result never contemplated by the framer of the clause in ques- tion" {q). Under Tzon assumpsit the defendant cannot raise a defence under the Carriers' Act ; but such a defence must be pleaded specially. Thus, where the defendant wished to avail himself of a want of notice under this act, it was held, that he could not do so under the general issue (r). This case was decided on the repealed rules of Hilary Term, 4 Will. 4; but the rules of Hilary Term, 1853, as stated above, are similar as to the effect of the general issue. Evidence for Plaintiff in Assumpsit. In assumpsit against a carrier for loss or damage of goods, it must be proved that the defendant is a carrier, and that he contracted to carry ; that the goods were delivered to him, and not delivered by him; or that they were delivered damaged, Prove also the value, and any special damage. 1. If the defendant is a common carrier, prove such cir- cumstances as bring him within the definition of one ; ex. (jr., that he plies regularly for hire from one place to {q) Taylor on Evi) Webb V. Page, 6 M. & G. 196 ; C. P. Great Northern Railway v. Harrison, (/*) Mercer v. Jones, 3 Camp. 477. 220 ACTIONS AGAINST AND BY CARRIERS. sued for such a loss, the damages will be measured by this rule ; and where the essence of the bailment is safe custody- only, as in the case of a warehouseman, the bailee is not answerable for any special or consequential damage arising to the bailor from the loss beyond the value of the goods, miless such a liability have been created in him by express contract. Thus, where a commercial traveller sued a rail- way company, as warehouseman, for the loss of a case of patterns, it was held, that he could recover only the value of the case and of the patterns; but neither salary, nor the expenses which he had incurred while he was waiting for new patterns ; still less the loss of profit on business which otherwise he would have made during the interval (^). It will be sufficient to prove a general and average aggre- gate of value; and the courts will not require minutely distinct evidence as to the particular value of the goods, nor of the separate articles of a package. When goods are lost by the wrongful act of a person, the presumption is that, as against that person, the goods were the best of their kind. Thus, in Armory v. Delamirie {k), in trover for a jewel, Pratt, C J., directed the jury that, unless the defendant could disprove that it was of the finest quality, they ought to presume it to be so ; and that the measure of damages would be the value of such a jewel. So, in Butler V. Basing (/), in trover against a carrier for a box, as to the contents of which there was no distinct evidence, Garrow, B., recommended the jury " not to pare down the amount of damages, because the articles contained in it could not be distinctly proved ; and to give damages pro- portioned to the value of the articles, which they in their judgment thought the box might contain." It is right to observe, that the learned judge based his recommendation on the fact that the ow^ner of the box, the plaintiff, who probably packed the box, could not be examined as to its (/■) Anderson v. North -Eastern (/.) 1 Str. 505; 1 Smith's Lead. Railway, 9 W. R. 519 ; 4 L. T. Rep., Cas. 256. N. S. 216. (0 2 Car. & P. 613. ACTIONS AGAINST AND BY CARRIERS. 221 contents. But this reasoning would not apply under the present law of evidence {7n). In the case of lost valuable goods under the Carriers' Act, a more stringent rule has been adopted than at com- mon law, in measuring damages ; and it appears that more distinct proof of value is required. The 9th section of the act provides, that " mail contractors, stage-coach pro- prietors, or other common carriers for hire, shall not be concluded as to the value of any such parcel or package by the value so declared as aforesaid" (sect. 1) : " but that he or they shall, in all cases, be entitled to require from the party suing in respect of any loss or injury, proof of the actual value of the contents by ordinary legal evidence ; and that the mail contractors, stage-coach pro- prietors, or other common carriers as aforesaid, shall be liable to such damages only as shall be so proved as afore- said (by sect. 7), not exceeding the declared value, together with the increased charges as before mentioned ;" viz. by sect. 7, which provides that " where any parcel or package shall have been delivered at any carrier's office, and the value and contents declared," and the increased rate of charges been paid, and such parcel or package shall have been lost or damaged, the party entitled to recover da- mages in respect of such loss or damage, shall also be en- titled to recover back such increased charges so paid as aforesaid, in addition to the value of such parcel or package. A carrier's liability for damages is greater than that of a warehouseman, or bailee, for safe custody only. He is assumed to know that the goods are going for some pur- pose, and so far has notice which renders him responsible for damages resulting from loss of the goods beyond their actual value (/?), but not for any inconvenience or vexa- tion which the plaintiff may suffer from the breach of con- (;«) 14 & 15 Vict. c. 99, s. 2. North-Eastern Railway, 4 L.T. Rep. (n) Pollock, C. B., Anderson v. 216. 222 ACTIONS AGAINST AND BY CARRIERS. tract (o). He is liable only for the reasonable or proximate, and not for the remote, consequences of his breach of con- tract. The rule on this head has been thoroughly settled in a leading case (p). There damages were claimed from a carrier for a delay of several days in the delivery of some pieces of broken iron to the engineer who was to repair them. The defendant had been informed, at the time of the bailment to him, that the pieces formed the broken shaft of the plaintiff's mill, but not that the mill could not be worked until the shaft should be returned. The plaintiff claimed compensation for the loss of the profits which he would have made by his mill if the shaft had been re- turned at the proper time. The judge left the question of damages to the jury, without any special direction; but the court above granted a new trial, on the principle that the jury should have been told not to take the loss of pro- fit into consideration at all in estimating the damages ; and Alderson, B., in delivering the judgment of the court, said : " We think the proper rule in such a case is this : — Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive, in respect of such breach of contract, should be either such as may fairly and reasonably be considered arising naturally, i. e., according to the usual course of things (q) from such breach of contract itself, or such as may reasonably be supposed to have been in the contem- plation of both parties at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances, under which the contract was actu- ally made, were communicated by the plaintiff to the de- fendant, and thus known to both ])arties, the damages (o) Hamlen v. Great Western (q) Gee v. Lancashire Railway, Railway, 1 H. & N. 408 ; 26 L. J. 30 L. J. 11, Exch.; Wilson v. Lan- 22, Exch. cashire and Yorkshire Railway, 3 L. (p) Hadley v. Baxendale, 9 Exch. T. Rep., N. S 859. 341; 23 L.J. 179, Exch. ACTIONS AGAINST AND BY CARRIERS. 223 resulting from such a breach of contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under those special circumstances, so known and commu- nicated. But, on the other hand, if those special circum- stances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and, in the great multitude of cases, not affected by any special circumstances, from such a breach of contract :" and his Lordship, after remarking" that the stoppage of the mill was not such a necessary consequence of the delay as the defendant could know, without special communication, added : " It follows, there- fore, that the loss of profit here cannot reasonably be con- sidered such a consequence of a breach of contract, as could have been fairly and reasonably contemplated by both these parties when they made this contract ; for such a loss would not have naturally flowed" from the breach of this contract in the great multitude of such cases, occurring under ordinary circumstances ; nor were the special cir- cumstances, which, perhaps, would have made it a reason- able and natural consequence of such breach of contract, communicated to or known by the defendant." In such cases it has been suggested, that the proper measure of damages for the non-delivery of a chattel, on a fixed day, should be either an average per centage of mer- cantile profits (r), or the average profit to be made by the use of the chattel (s); but in the case in which these sug- gestions were made by the judges, it was thought that in an action for non-delivery of a ship, the damages were not too high which gave the difference between the profits which the ship would have made if she had been duly delivered when freights were high, and the profits she earned when delivered some months later, when freights (r) Jervis, C. J., Fletcher t;, Tay- (s) Willes, J., 17 C. B. 29; 25 leur, 17 C. B. 27 ; 25 L. J. 66, C. P. L, J. 66, C. P. 224 ACTIONS AGAINST AND BY CARRIERS. \A^ere low. But this doctrine seems to trespass on that of Hadley v. Baxendale, since the subsequent fall of freights can scarcely be considered to have been contemplated by the parties, at the time when they contracted, as a pro- bable or natural result of a breach, or to be within the usual course of events ; and the limit, also, to such damage appears to be too remote (t). In equity it has been suggested that the measure of damages for the wrongful detention of a chattel, is the profit which would have arisen from the user of the chattel, provided there be evidence that some particular, and not merely a contingent or general, user has been interrupted ; as where a ship has been prevented from proceeding on a particular voyage, the contingent and probable profits of that voyage may be given. In such a case, it may be remarked, that the wrong assumes a character of wilful- ness, which would justify exemplary damages (u). But this doctrine, it is submitted, cannot be extended to ordinary breaches of contract or cases of negligence. The doctrine of Hadley v. Baxendale has been main- tained firmly in all subsequent cases as law. Thus, a plaintiff had agreed to repair a steam thrashing machine for S., and had employed the defendant to repair a fire-box forming part of it. The defendant failed to do the repair within the fixed time ; and when he had completed it, the fire-box proved to be worthless. S. sued the plaintiff for non-performance of the contract between them ; and the plaintiff compromised the action (which arose entirely out of the defendant's negligence), by paying S. twenty pounds. Then the plaintiff sued the defendant, and claimed the sum paid to the defendant for repairs; the price which the plain- tiff had paid for a new box ; and also the twenty pounds he had paid S. The first two sums were not disputed ; but the court held that the plaintiff was not entitled to the latter, as the defendant knew nothing about the plaintiff's {t) See Smeed v. Foord, infra ; 28 (u) De Mattos v. Gibson, 30 L. J. L. J. 178, Q. B. Ho, Chan., V. C. Wood. ACTIONS AGAINST AND BY CARRIERS. 225 contract with S. until long after the defendant had broken his contract with the plaintiff (x). In this case there was nothing to fix the defendant with an actual or constructive knowledge of the necessary or probable special damage which the plaintiff would suffer from the breach of contract. In the following case there was such a constructive knowledge; and, therefore, the defendant was held to be liable to the full extent of such special damage. He had sold to the plaintiff under a warranty, as it seems, inferior seed barley as Chevalier seed barley. The plaintiff resold, under a similar war- ranty, to a third person, who sowed and received an infe- rior crop from the seed. The plaintiff had agreed to com- pensate his vendee, but had not fixed any sum. A sum of 26 H. seems to have been found by the jury to be the sum which the plaintiff was liable to pay his vendee ; and the court held, that the plaintiff was entitled to I'ccover that sum from the defendant, who, when he warranted the seed to be good, must be held to have contemplated the loss which the failure of the crop was certain to cause to any purchaser or sub-purchaser of the seed, if it turned out to be bad seed (?/). Similarly, in a later case, the courts have shown no dis- position to limit, but rather to extend, the doctrine of Hadley v. Baxendale. The plaintiff, a farmer, had con- tracted to buy a threshing machine from the defendant, who had undertaken to deliver it within a month. He was warned that if it were not delivered by a subsequent day — 14th August — the plaintiff would have to hire one. The plaintiff was induced, by the defendant's promise, to wait still longer ; and the plaintiff's corn was then subse- quently damaged severely by rain. The court held the plaintiff entitled to recover the damage done to the wheat, and the cost of kiln-drying, as the natural consequence of (a;) Portmanu.Middleton, 27L. J. Q. B. j Josling v. Irvine, 30 L. J. 231, C. P. 78, Exch. (,y) Randall t;. Roper, 28 L.J. 266, 226 ACTIONS AGAINST AND BY CARRIERS. the defendant's breach of contract ; but not, it seems, the loss arising from a fall in the market price of corn (z). In Gee v. Lancashire Railway <;«), the case was very similar to that of Iladley v. Baxendale : and the court accordingly held, that in an action for non-delivery of cotton vi^ithin reasonable time, neither the loss of profit, by the mill being at a stand still for want of the supply ; nor the wages which the plaintiff had to pay his ser- vants while they were kept idle, while he was waiting for the cotton, could be included in the damages ,• as there were no circumstances from which it could be in- ferred, that these losses had been in the contemplation of the parties, when the contract of carriage was made, although it would have been otherwise, if there had been such an actual or constructive knowledge. In this case, Wilde, B., stated his concurrence with the opinion of Martin, B., that although a very excellent attempt was made in Hadley v. Baxendale, to lay down a rule of practice, it has been found, that that rule will not meet all cases, and that it may be found that, in many actions of contract, there is no rule of damages at all. Where goods were not delivered till after the season for them had passed, it was held, that the measure of damages was the difference between the market value of them at the time of delivery, and the time w hen they ought to have been delivered ; and that the plaintiff could not include anything for the loss of profits which he might have made by them, if they had been delivered at the proper time, and during the season {b). The preceding cases appear to have limited materially, if they have not virtually abolished, the doctrine, for which there is still high authority (c), that a plaintiff, on a breach (z) Snieed r. Foord, 28 L. J. 178, (c) Waters v. Towers, 8 Exch. Q. B. 401 ; Dunlop v. Higgins, per Lord (a) 30 L. J. 11, Exch. Cottenham, 1 H. of L. Cas. 403; (6) Wilson V. Lancashire and Josling i;. Irvine, 30 L. J. 78, Exch. Yorkshire Railway, 3 L. T. Rep. 859. ACTIONS AGAINST AND BY CARRIERS. 227 of contract, is entitled to recover damages arising out of his own inability to fulfil a contract, which he would have probably fulfilled, if the defendant had fulfilled his contract with the plaintiff. But the latest cases appear to settle clearly that mere inability to fulfil a sub-contract, arising out of the breach of contract on which damages are claimed, cannot be computed, unless the defendant knew actually, or constructively, of the sub-contract at the time when he entered into his contract with the plaintiff (f/). Where any portion of the assigned damage is attribu- table to the plaintiff's own negligence, he cannot claim compensation for it. Thus, where he booked through to a town on a railway, and was forced to stop at an intermediate place, because the defendants had no train to forward him, as contracted for, to the end of his journey j he was held to be entitled only to his hotel expenses for the night, and railway fare to his destination next day; and not to special damage which he had sustained by failing to keep appointments with his customers. Martin, B., even doubted whether he could claim his hotel expenses. In this case the damage was limited to inevitable pecuniary loss, and by the consideration, that the plaintiff ought to have taken a post-chaise to his destination, and charged it to the defendants (e). So, even where the carrier detained the plaintiff's goods wrongfully ; but the plaintiff might have had them by paying an illegal claim; the court thought, that although he was not bound to pay and sue the carrier subsequently for repayment, yet the jury might fairly consider the whole conduct of the parties, and whether the plaintiff's perversity had contributed to the damage. They held, also, that the measure of damages in such a case was not necessarily the amount of (d) Caledonian Railway Company v. Hare, 29 L. J. 143, C. P. V. Cole, 3 L. T. Rep. 252, H. of L. ; (e) Hamlen v. Great Northern Prior W.Wilson, 8 W.R.2C0; Spark Railway, 1 H. & N. 408 ; 26 L.J. r.Heslop,28L.J. 197,Q. B.; Dingle 20, Exch. q2 228 ACTIONS AGAINST AND BY CARRIERS. the sum demanded unlawfully (/). In short, pervading all the cases, the common law doctrine seems to hold, that a plaintiff's claim to compensation will be measured ma- terially by his ability to compensate himself; and any omission to do so will have the effect of reducing the damages : as where sold goods are not duly delivered, the vendee can recover only the difference between the con- tract price and market price of them {g). Where a carrier is sued for damages, arising out of his negligence, they will be measured according to the rule in Hadley v. Baxendale ,• for it seems to be settled that, in wrongs of negligence, as in breaches of contract, the re- coverable damages must be the natural, proximate and necessary results of the breach of duty (A). For every breach of duty, nominal damages at least must be given {i). The guiding principle of assessment must be taken to be the principle of compensation ; but juries are not bound by this principle so strictly in assessing damages, issuing out of wrong, as in assessing those which issue out of con- tract. Where there is no certain measure of damages in actions of wrong, the jury must be left to their common sense in the application of the above principle ; and the court will not disturb their verdict (A). In a railway accident, where the plaintiff's eye was injured by collision, and negligence of the defendants, and affected with chronic inflammation, which was likely to impair the sight per- manently. Lord Campbell, C. J., left it to the jury to say what was the fair amount of damages ; and they gave the plaintiff 500/. (Z). Where the plaintiff had been given into custody, on a charge which proved unfounded, that he (/) Davis V. London and North- (i) Crompton, J., Fray t'. Vowles, Western Railway, 7 W. R. 105. 28 L. J. 232, Q. B. {g) Gainsford v. Carroll, 2 B. & C. (A) Day v. Holloway, 1 Jur. 794 ; 624. Williams v. Currie, 1 C. B. 841. {h) "Walker v. Goe, 28 L. J. 184, (/) Plant v. Oxford and Worces- Exch.; Richardson v. Dunn, 30 L. J. ter Railway, Sittings after Hil. T. 44, C. P.; Collins v. Cave, 30 L. J. 1856, at Westminster, Times, Feb. 5, 55, Exch., Sc. Cam. 1856. ACTIONS AGAINST AND BY CARRIERS. 229 had not paid his fare, and was taken, without delay, before a magistrate, by whom he was discharged, 501. were held to be hberal, but not excessive damages (m). Where the wrong assumes a mahcious character the jury may award exemplary or vindictive damages ; as if a rail- way carrier, to obtain a monopoly, or to injure another carrier, refuse to carry goods which he is bound at law to carry (n) ; and they are at liberty to take into consideration the injury to the party's feelings, and the pain he has experienced, as, for instance, the extent of violence in actions of tort; and many topics and many elements of damage find place in an action of tort, which certainly have no place whatever in an ordinary action of contract (o). When the damage arises out of simple negligence, es- pecially if it be not of a gross character, the jury ought to attend strictly to the question of mere pecuniary compen- sation ; although, even in these cases, the courts are un- wilhng to fetter the discretion of juries (p). But where a jury gave the plaintiff 200/. as damages for the loss, which they found he had suffered in his trade, by the refusal of the defendants to carry for him according to their duty as common carriers, the damages were held to be too remote, and not recoverable ( q). And in such cases the jury ought to consider whether any portion of the damage is due to the plaintiff's own negligence ; and whether he might have avoided it by his prudence; as by not insisting too punctiliously on his legal rights. The jury will look to all the circumstances, and say in what way the damage is to be apportioned between the parties (r). (m) Goff V. Great Northern Rail- 148, C. P. way, 30 L. J. 148, Q. B. (p) Duckworth?;. Johnson, 29 L.J. (n) Crouch w.Great Northern Rail- 25, Exch. way, 25 L.J. 137, Exch.; Bell v. (q) Crouch i). Great Northern Rail- Midland Counties Railway, 4 L. T. way, 25 L. J. 137, Exch. Rep., N. S. 293. (r) Davis v. London and North- (o) Pollock, C. B., Hamlen v. Western Railway, 7 W. R. 105; Great Northern Railway, 26 L. J. 20, Eniblin v. Myers, 30 L. J. 71, Exch. ; Exch. ; cf. Robin v. Steward, 23 L. J. cf. supra, p. 227. 230 ACTIONS AGAINST AND BY CARRIERS. On a policy of insurance, guaranteeing a certain sum in the event of injury by a railway accident, the damages are confined to compensation for bodily pain and suffering, and the amount of the medical attendant's bill ; and damages, for loss of time and profits, are not recoverable (s). In such a case it has been said, that " it is unmanly, though un- doubtedly legal, to claim damages for pain and suffering" (t) ; but juries may consider the profits which a person would have made in his trade or profession, if the accident had not occurred, and may give compensation accordingly (u). The same principles apply to actions, for compensating the families of persons killed by accident, under 9 & 10 Vict, c. 93. By the second section of that act " in every such action the jury may give such damages as they may think proportionate to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought." In these cases " the measm'e of damages is not the loss or suffering of the deceased, but the injury resulting from his death to his family" (v). The damages are confined to injuries of which a pecuniary es- timate can be made ; and the jury must not consider the mental sufferings of a plaintiff, e. g., of a wife for the loss of her husband {x), or of a parent for his child {y). Legal liability is not the only measure of such damages (z) ; but the jury may take into account a reasonable expectation of pecuniary advantage which the plaintiff might have derived from the prolonged life of the deceased, and the probable pecuniary loss which the plaintiff has sustained by the death ; and the court will not be sedulous to reduce da- mages in such cases (a). Neither funeral expenses, nor {s) Theobald v. Railway Assur- Railway, 21 L. J. 237, Q. B. ance Company, 10 Exch. 45 ; 23 L.J. {x) Ibid. 249, Exch. {y) Duckworth u. Johnson, 29 L.J. (0 Per Pollock, C. B., ibid. 25, Exch. (u) Cf. De Mattos v. Gibson, 30 (z) Franklin v. South-Eastern L. J. 146, Chan., V.C. Wood. Railway,6W.R. 573 ; 3H.&N.211. («) Per cur. Blake v. Midland (a) Ibid. ACTIONS AGAINST AND BY CARRIERS. 231 mourning can be allowed (b). The jury ought not to cal- culate the life of the deceased by the annuity tables; but should give reasonable compensation according to the cir- cumstances, and without reference to the feelings of sur- viving relations (c) ; for the object of the act is to compen- sate the families of deceased persons, and not to solace their feelings (rZ). When the action is for negligence, which has caused the death of a man's wife, he is entitled to damages for the loss of her society, and the distress of mind which he has suffered on her account from the time of the accident up to the moment of her dissolution ; but his damages stop with the period of her existence (e). Costs. The right to costs in actions by and against carriers depends on several statutes. 1. Costs in the Superior Courts, independently of the County Courts Acts. By the Statute of Gloucester, 6 Edw. 1, c. 1, a plaintiff in an action is entitled to recover his costs in all cases in which he recovers damages ; and, by 4 Jac. 1, c. 3, a defendant is similarly entitled, if judgment be for him; or if the plaintiff be nonsuited ; in all cases in which the plaintiff may have costs, if judgment had been for the plaintiff. But whether the action be in contract or in tort, the plaintiff can recover no more costs than damages, if the action be in a superior court, and if the damages be under 405., and the judge certifies to that effect (jT). A larger restriction exists when the action is in the superior court, (6) Dalton i;. South-Eastern Rail- (tf) Per Coleridge, J., 21 L. J. way, 4 C. B. 29() ; 27 L. J. 227, C P. 223, Q. B. (c) Armsworth v. South-Eastern (c) Per Lord EUenborough, Baker Railway, 11 Jur. 759. v. Bolton, 1 Camp. 493. (/) 43 Eliz. c. 6, s. 2. 232 ACTIONS AGAINST AND BY CARRIERS, and is trespass, or trespass on the case : for then, if the damages be less than 40s., the plaintiff can have no costs whatever, unless the judge, immediately after the trial, certify on the back of the record that the action was brought to try a right, besides the mere right to recover damages for the trespass ; or that the trespass was wilful and malicious (^). This restriction is again enlarged in all actions for alleged wTong in any of the superior courts : for in such cases, by a very recent statute, the plaintiff is not entitled to recover any costs whatever, when the verdict is for less than bl., if the judge before whom the verdict is obtained, " shall immediately afterwards certify on the back of the record, or on the writ of trial or writ of inquiry, that the action was not really brought to try a right, besides the mere right to recover damages ; and that the trespass or grievance, in respect of which the action was brought, was not wilful and malicious ; and that the action was not fit to be brought (/i). This section applies to actions tried after, although commenced before, the act came into operation (i). The effect of these enactments, considered irrespectively of the several County Courts Acts, which will be noticed secondly, appears to be that : — a. In all actions, which can be brought by or against carriers in the superior courts, a plaintiff, recovering less than 40i\, will have his full costs, unless the judge certifies to deprive him of them. When the verdict is for more than 40s., the plaintiff will have his costs in all actions of contract. h. In trespass, or negligence, he will not have any costs if the verdict be for less than 40s., unless the judge, immediately after the trial, certify on the back of the record that the action was brought to try a right, besides the mere right to recover damages ; or that the trespass was wilful and malicious. (^) 3 & 4 Vict c. 24, s. 2. (J) Wright v. Hale, 30 L. J. 40, (/O 23 & 24 Vict. c. 126, s. 34. Exch. ACTIONS AGAINST AND BY CARRIERS. 233 c. Where in such cases, or in any alleged wrong, the plaintiff recovers less than 5/., the plaintiff will not have any costs, if the judge certify that the action was not brought to try a right besides the right to recover damages, and that the trespass or grievance was not wilful and malicious ; and that the action was not fit to be brought. In order that the plaintiff may have his costs under h, the judge must certify for him. In order to deprive him of them under c, the judge must certify against him. An omission of the judge to certify under h, will de- prive the plaintiff of his costs; an omission, under c, will give him his costs. The certificate, under both h and c, must be given, as it seems, " within such a reasonable time as will exclude the danger of intervening facts operating upon the mind of the judge so as to disturb the impression made upon it by the evidence in the cause" (k). The certificate under 43 Eliz. c. 6, may be given later (Z). 2. Costs as affected hy the County Courts Acts. If the plaintiff in any action of covenant, debt, detinue, or assumpsit, commenced in any one of the superior courts, and not being an action for breach of promise of marriage, recover a sum not exceeding 20/. ; or in trespass, trover, or case, a sum not exceeding 5/. : he shall have judgment to recover such sum only and no costs, except in the case of judgment by default (m); or, unless the judge certify, on the back of the record, that the cause of action was one which could not have been brought in a county court, or that there was a sufficient reason for bringing the action in the superior court (?*)• If the judge so certify, the plaintiff shall have the same judgment to recover his costs, {k) Per Lord Abinger, C. B., Richardson v. Barnes, 4 Exch. 128. Thompsons. Gibson, 8 M.&W. 287. (?«) 13 & 14 Vict. c. 61, s, 11, {I) Holland v. Gore, 3 T. R. 38; («) Ibid s. 12. 234 ACTIONS AGAINST AND BY CARRIERS. as if the statute had not passed {o). In order to deprive the plaintiff of his costs under this act, it is not necessary to enter any suggestion on the record (p). To these enactments there are statutory exceptions : and, notwithstanding the 13 & 14 Vict. c. 61, s. 1 1, a successful plaintiff may still have his costs, whether there be a verdict in the action or not, if he satisfy the court in which the action was brought, or a judge at chambers, that the action was brought for a cause in which concurrent jurisdiction is given by 9 &: 10 Vict. c. 95, s. 28 ; viz., either that a. The plaintiff dwells more than twenty miles from the defendant (g), as the crow flies (r) ; or that b. The cause of action did not arise w^holly, or in some material point, within the jurisdiction of the court, within which the defendant dwelt, or carried on his business, at the time of the action brought; or that c. An officer of the county court is a party to the action (s) ; or that d. No plaint could have been entered in any county court (t) ; or that e. The action was removed from a county court by certiorari (w) ; or that f. There was sufficient reason for bringing the action in the court in which the action was brought (x). In all, or any, of these six cases, the court or judge shall, by rule or order, direct that the plaintiff shall have his costs, as if the 13 & 14 Vict. c. 61 had not been passed (y). Hence, if a judge refuse to certify under the 13 &; 14 Vict, c. 61, s. 12, a plaintiff may still recover his costs by bring- ing his case within one of the cases which are denominated by the 15 & 16 Vict. c. 54, s. 4. (o) 13 & 14 Vict. c. 61, s. 12. (s) 15 & 16 Vict. c. 54, s. 4; 9 & (p) Ibid. s. 11. 10 Vict. c. 95, s. 128. (q) 9 & 10 Vict. c. 95, s. 128. (0 15 & 16 Vict. c. 54, s. 4. (r) Lake v. Butler, 5 E. & B. 92 ; («) Ibid. 24 L.J. 273, Q. B.; Jewell v. Stead, (a) Ibid. 25 L. J. 294, Q. B. ; cf. Duignan v. (y) Ibid. Walker, 28 L.J. 867, Ch., V. C.Wood. ACTIONS AGAINST AND BY CARRIERS. 235 When a plaintiff, in an action of contract, sues in a superior court for a sum not exceeding 20/., and the defendant suffers judgment by default, the plaintiff can have no costs, unless by leave of the court or a judge (z). Under this clause a plaintiff, in an action for the loss of goods against a common carrier, who suffers judgment by default, is still entitled to his costs, as the action is founded on the breach of the defendant's common law duty, in- dependently of contract (a). Where the judgment was for less than 20/., and it appeared that the goods were de- livered by a carrier, who was to be paid by the plaintiff, to the defendant at his residence, it was held, that the cause of action arose within the district in which the residence w^as (/>). Under the 9 & 10 Vict. c. 95, s. 128, and 15 & 16 Vict. c. 54, s. 4, a body corporate may be sued, and be liable to costs, and may "dwell;" and a railway company is deemed to dwell at its principal office, and not at every station along the line. Therefore, in an action against the Great Western Railway Company, where the plaintiff dwelt more than twenty miles from Paddington, he was held en- titled to his costs (c). Where goods were to be carried from London to Newcastle, and were lost on the way ; it was held, that the superior court in London had concurrent jurisdiction, as the delivery at Newcastle was to be to the agents, and not to the servants of the defendants at New- castle ; and that therefore the cause of action could not be regarded as having arisen within the Newcastle district (7 ; 18 L, J. Railway, 4 M. & W. 768. 366, Exch. (b) Johnson v. Midland Railivay ON RAILWAY CARRIERS. 239 coals at the station ; nor did it appear that they had acted on the notice as to coals at that station : it was held, that there was not sufficient evidence to show that the defend- ants had held themselves out as carriers of coal from that station. Erie, C. J., said: " It is the duty of a common carrier to carry in accordance with the conditions which he holds out to the public ; but when such conditions do not restrict him, he has an option as to the method in which he will conduct his business. He may carry coals from a particular station only, and other articles from other stations only, as may suit his convenience" (c). Where a railway company has been incorporated since the 8th May, 1845, it is subject to the 8 Vict. c. 20 (Railways Clauses Consolidation Act), the clauses and provisions of which are declared by the first section to be incorporated with the railway's special act, except so far as they are expressly varied or excepted by any such act. Generally, these acts are framed in language similar to that of the Railways Clauses Consolidation Act. But when- ever it is sought to know the exact terms and extent of the duties and rights of railway carriers, reference must be made to the special act ; a copy of which the company is bound (tZ) to keep for public inspection in their principal office of business ; and to deposit another copy, for the same purpose, with the clerk of the peace for every county through which the railway passes. Such acts are con- strued strictly against the persons obtaining them, and liberally in favour of the public (e). The principles and general constitution of railway carriage, as regulated by public statutes, will now be stated. One of the earliest acts, 1 & 2 Vict. c. 98, enables the Postmaster-General to require all railways to convey the public mails for a reasonable rate of charge. It is sufficient (c) Oxlacle v. North- Eastern Rail- Exch., Sc. Cam. way, 9 W. R. 272; 3 L. T. Kep., (d) 8 Vict. c. 20, s. 162. N. S, 671 ; cf. Erie, J., M'Manus v. (e) See Cases, Chitty's Statutes, Lancashire Railway, 28 L. J. 35 h, Vol. 3, p. 956, n. 240 ON RAILWAY CARRIERS. to refer to this act (and see also 7 & 8 Vict. c. 85, s. 11), as well as to the 5 &; 6 Vict. c. 55, s. 20, by which rail- ways may be required to convey troops and military stores at prices to be fixed by the Secretary of State : (see also 7 & 8 Vict. c. 85, s. 12, and 10 & 11 Vict, c .85,) but not at the same rate as an ordinary passenger train {f). Since the 18th August, 1846, it is not lawful (with a few exceptions) to construct any railway for the conveyance of passengers on any gauge other than four feet eight inches and a half in Great Britain, and five feet three inches in Ireland ; but railways, constructed previously on a different gauge, may be still maintained on that gauge {g). A general supervision of all railways is given to the Board of Trade, who may call for returns of the aggregate traffic in passen- gers, cattle and goods, as well as of all accidents, attended with personal injury, on the railway : and also for tables of all tolls, rates, and charges levied from time to time on such traffic (A). The Board may appoint persons to inspect the railway, and all works and engines connected with it, at all reasonable times (i). All bye-laws, before they can operate, must have been laid, for two months previously, before the Board, who may disallow any such bye-law at any time before, or after, it shall have come into operation (k). Prosecutions may be directed by the certificate of the Board against the company for any offence against any of the railway acts, within one year after such offence shall have been committed (/) : such prosecution being directed by the Board to the Attorney-General for England or Ireland, or Lord Advocate for Scotland {m). Any officer or agent of the railway company may " seize and detain any engine driver, guard, porter, or other servant in the employ of the company, who shall be found drunk while (/) R. t). Irish South-Eastern («) 3 & 4 Vict. c. 97, s. 5 ; 7 & 8 Railway, 1 Ir. L. R., N. S. 29. Vict. c. 85, s. 15. ig) 9 & 10 Vict. c. 57, s. 1. (/.•) 3 & 4 Vict. c. 97, ss. 8, 9. Qi) 3 & 4 Vict. c. 97, s. 1 ; 14 & (Z) Ibid. s. 12. 15 Vict. c. 64. ()«) 7 & 8 Vict. c. 85, s. 17. ON RAILWAY CARRIERS. 241 employed upon the railway or commit any offence against any of the bye-laws, rules, or regulations of the company ; or who shall wilfully, maliciously, or negligently do or omit to do any act whereby the life or hmb of any person passing along or being upon the railw^ay or the works thereof shall be or might be injured or endangered, or whereby the passage of any of the engines, carriages, or trains shall be or might be obstructed or impeded" (n). Any such person so apprehended, or any person counselling or aiding him, may be conveyed, with all convenient des- patch, before a justice of the peace without warrant, and may be imprisoned, with or without hard labour, for not more than two calendar months; or be fined not more than ten pounds, and be imprisoned, with or without hard labour, in default of payment (o) : or the magistrate may send the case to the quarter sessions (p). Any person wilfully doing, or causing to be done, anything to obstruct any engine or carriage, or to endanger the safety of persons conveyed in the same, or who shall aid therein, is guilty of a misdc'- meanor, and, on conviction, may be imprisoned, with or without hard labour, for two years (g). Any person wilfully trespassing on a railway, or obstructing any offieer of the railway, may also be seized and detained until he can be conveniently taken before a magistrate of the district, who may fine him five pounds; and, in default of payment, the offender may be imprisoned for not more than two calendar months, with or without hard labour (r). No railway, nor portion of any railway, may be opened for public conveyance, until after one calendar month's notice in writing to the Board of Trade, of the company's intention to open the railway; nor until after ten days' notice to the Board, of the time when the railway will be complete and fit for inspection (5). The Board may post- (m) 3 & 4 Vict. c. 97, s. 13 ; 5 & 6 (7) Ibid. s. 15. Vict. c. 53, s. 17. (/•) Ibid. s. 16. (o) 3 & 4 Vict. c. 97, s. 13. (s) 5 & 6 Vict. c. 55, s. 4. (p) Ibid. s. 14. R 242 ON RAILWAY CARRIERS. pone the opening, if, after inspection, they think it right to do so (t). Notice of every accident, attended with serious personal injury, must be given by the company to the Board within forty-eight hours after its occurrence (m). Whenever a railway crosses a turnpike, highway, or statute labour road, the directors of the railway must keep gates at each end of the road, where it crosses, at all times closed, except when the railway carriage or engines are crossing the road (x) ; and every train must slacken speed before arriving at such road, and not cross it at any greater rate of speed than four miles an hour(?/). The Board may decide all questions between companies with a common terminus or line of rails, so far as such questions affect the safety of the public (z). No railway shall be considered a passenger railway if two-thirds or more of the gross annual revenue of such railway shall be derived from the carriage thereon of coals, ironstone, or other metals or minerals {a). Carriages of greater weight than four tons may be used (6). By a recent and important act any two or more railway companies may, by writing under their common seals, agree to refer to arbitration any existing or future differences between such companies. It is sufficient to refer to this act (c). The 7 & 8 Vict, c. 85, s. 6, requires all existing and future passenger railways to run at least one train on every week- day, except Christmas-day and Good Friday, each way, such exception not to extend to Scotland, from one end to the other of each trunk, branch, or junction line belonging to or leased by the company, " for the conveyance of third- class passengers, to and from the terminal and other ordinary passenger stations of the railway, under the obli- gations contained in their several Acts of Parhament, and (0 5 & 6 Vict. c. 55, s. 6. (z) Ibid, s, 11, (ti) Ibid. s. 7. (a) 5 & 6 Vict. c. -55, s, 12. (,r) Ibid, s, 9; cf. Marfell «, South- (b) Ibid. s. 16. Western Railway, 29 L. J. 315, C, P. (c) 22 & 23 Vict. c. 59. («/) 8 & 9 Vict. c. 20, s. 48, ON RAILWAY CARRIERS. 243 with the immunities applicable by law to carriers of pas- sengers by railways, and also under the following con- ditions : that is to say — Such train shall start at an hour, to be from time to time fixed by the directors, subject to the approval of the Lords of the Committee of Privy Council for Trade and Plantations. Such train shall travel at an average rate of speed not less than twelve miles an hour for the whole distance travelled on the railway, including stoppages. Such train shall, if required, take up and set down pas- sengers at every passenger station which it shall pass on the line. The carriages, in which the passengers shall be conveyed by such train, shall be provided with seats, and shall be protected from the weather, in a manner satis- factory to the Lords of the said Committee. The fare or charge for each third-class passenger by such train shall not exceed one penny for each mile travelled (d). Each passenger by such train shall be allowed to take with him half a hundred weight of luggage, not being merchandize, or other articles carried for hire or profit, without extra charge ; and any excess of lug- gage shall be charged by weight, at a rate not ex- ceeding the lowest rate of charge for passengers' luggage by other trains. Children under three years of age, accompanying pas- sengers by such train, shall be taken without any charge ; and children of three years and upwards, but under twelve years of age, at half the charge of an adult passenger. (d) For fractions under one mile No rate shall be deemed excessive one penny may be charged ; and for if it does not exceed one farthing for fractions exceeding halfa mile, when each entire quarter of a mile tra- the distance amounts to one mile or veiled (21 & 22 Vict. c. 75, ss. 1, 2; more, one halfpenny may be charged. 23 & 21' Vict. c. 41). 244 0\ RAILWAY CARRIERS. The effect of this section was discussed in The Great Northern Railway v. Shepherd (e). That was an appeal from the decision of a county court judge ; and the ori- ginal plaintiff and his wife had travelled by an excursion train with goods, which were not personal luggage, but articles of merchandize above 56 lbs. in weight. It was held that, under the act, the husband and wife travelling together were entitled to 11 2 lbs. of personal luggage. But there was no evidence that the excursion train was subject to the regulations of ordinary third-class trains ; but rather the contrary. It was held, therefore, that the company was only liable, as at common law, for the loss of the goods ; that the fare for passengers included only personal luggage ; and that as the goods had been delivered and carried ostensibly as luggage, when actually they were merchandize, the carrier was not liable. Parke, B., said : " The provision in the Act of Parliament is equivalent to notice that the company will carry with each passenger 56 lbs. of luggage, but not of merchandize ;" and stated that the term luggage, " according to the true modern doctrine on the subject, comprises clothing, and such arti- cles as a traveller usually carries with him for his personal convenience ; perhaps even a small present, or a book for the journey, might be included in the term ; but certainly not merchandize or materials bought for the purpose of being manufactured and sold at a profit." His Lordship remarked, during the case, that the mere fact of a pas- senger carrying more than the prescribed allowance would not exempt the carrier from liability, because it is strictly " his duty to weigh it ;" but considered that he might have objected to carry it if he had suspected the goods to be merchandize. A railway company is not bound to run more than one third-class train during the day under the above section; (e) 8Exch. 30; 24 L. J. 286, Exch.; cf. Munster t). South-Eastern Rail- way, 27 L. J. 308, C. P. ON RAILWAY CARRIERS. 245 and the company may run any others for such distances only, and subject to such reasonable arrangements as they may think proper (y"). Pencil sketches of an artist in his portmanteau are not ordinary luggage, nor entitled to be conveyed as such free of charge {g) ; nor is a common carrier bound to allow dogs or other animals to be conveyed free of charge, nor even to carry them at all, at common law, unless he has professed to carry them {h). By the 10th section it is provided, that, when a passen- ger railway company runs any train or trains on a Sunday, they shall provide third-class conveyances, on the above conditions, for the trains which stop each way at the greatest number of stations. All railway companies are bound by the same act (s. 13) to allow any person authorized by the Board of Trade, to enter on the lands of the railway, for the purpose of laying down and working a line of electrical telegraph, of which the railway company is to have the full benefit, subject to the prior claims of her Majesty, and of the proprietors of the telegraph. The provisions of the Railways Clauses Consolidation Act (8 Vict. c. 20), so far as they apply to carriers, may now be stated. The 86th section enacts : " With respect to the carrying of passengers and goods upon the railway, be it enacted as follows : — " It shall be lawful for the company to use and employ locomotive engines, or other moving power and carriages, and waggons to be drawn or propelled thereby, and to carry and convey upon the railway all such passengers and goods as shall be offered to them for that purpose, (/) Caterham Railway Company {g) Mytton v. Midland Railway V. London and Brighton Company, Company, 28 L. J. 385, Exch. 26 L. J. 161, C. P. (/i) Harrison y. London and Brigh- ton Railway, 29 L. J. 209, Q. B. 246 ON RAILWAY CARRIERS. and to make sucli reasonable charges in respect thereof as they may from time to time determine upon, not exceeding the tolls by the special act authorized to be taken by them." This section, as stated above, does not compel railways to become carriers, but enables them to act as such (Ji). Sect. 89. " Nothing in this or the special act contained shall extend to charge or make liable the company further or in any other case, than where, according to the laws of the realm, stage-coach proprietors and common carriers would be liable, nor shall extend in any degree to deprive the company of any protection or privilege which common carriers or stage-coach proprietors may be entitled to; but, on the contrary, the company shall at all times be entitled to the benefit of every such protection and privilege." The effect of this section is to give railway carriers the rights and privileges of carriers at common law, and under the Carriers' Act ; but it will be seen that this principle is again restricted by the 17 & 18 Vict. c. 31. Sect. 87 empowers railways to contract with other com- panies for the passage of engines, carriages, &c., and apportions the tolls between the companies. Sects. 98 — 102 refer to the general calculation of tolls. These sections will be given in the Appendix. The following sections are important : — Penalty for fraud on the Comipany. Sect. 103. " If any person travel, or attempt to travel, in any carriage of the company, or of any other company or party using the railway, without having previously paid his fare, and with intent to avoid payment thereof; or if any person, having paid his fare for a certain distance, knowingly and wilfully proceed in any such carriage beyond such distance, without previously paying the ad- ditional fare for the additional distance, and with intent to avoid payment thereof; or if any person knowingly and (ft) Johnson v. Midland Railway, 4 Exch. 367. ON RAILWAY CARRIERS. 247 wilfully refuse or neglect, on arriving at the point to which he has paid his fare, to quit such carriage, every such person shall for every such offence forfeit to the company a sum not exceeding forty shillings." Sect. 104. "If any person be discovered either in or after committing, or attempting to commit, any such offence as in the preceding enactment mentioned, all officers and servants, and other persons on behalf of the company, or such other company or party as aforesaid, and all con- stables, gaolers and peace officers, may lawfully apprehend and detain such person, until he can conveniently be taken before some justice, or until he be otherwise discharged by due course of law." If the passenger pays the fare demanded of him for a longer distance, he cannot be ap- prehended for nonpayment of a higher fare for a shorter distance, although he was aware that the charge for the shorter distance was more than for the longer distance (i). Under these sections a railway company has no power to apprehend a passenger for refusing to deliver up his ticket, under a bye-law empowering the company to recover the fare on such a refusal by proceeding before a magistrate (J) : and it appears, generally, that if the fare has been paid, the company will be liable to an action for false imprisonment, if they apprehend a passenger merely on the ground that he refuses, or omits, or is unable to give up his ticket when it is demanded from him {k). In such cases an action either for false imprisonment (Z), or for assault and battery (w), or for any negligent or malicious wrong (/i), according to the circumstances, but not for a malicious prosecution (o), will (i) R. v.Frere, 24 L. J. C8, M. C. (/) Roe v. Birkenhead Railway, (j) Tollemache v. London and 7Exch. 36; 21 L. J. 9, Exch. South-Western Railway, 26 L. T. (m) Eastern Counties Railway v. Rep. 222. Broom, supra. (/f) Eastern Counties Railway v. (h) Green v. London General Om- Broom, 6 Exch. 314; 20 L. J. 196, nibus Company, 24 L. J. 13, C. P. Exch.; Gofl'y. Great Northern Rail- (o) Stevens v. Midland Railway, way, 30 L. J. 148, Q. B. 10 Exch. 352 ; 23 L. J. 328, Exch. 248 ON RAILWAY CARRIERS. lie against a railway company, although a corporation, for the act of their servant, if there be evidence that the servant was acting under the express or implied authority of the railway company {p), or that the company subse- quently ratified his act {q). But unless there be sufficient evidence of such authority, no such action will lie against a company (r). Where a bye-law enacts, that a passenger shall produce his ticket when required so to do by any officer or servant of a company, and provides a penalty for refusal to produce it ; a conviction under the bye-law for non -production is good, even against an annual ticket holder, although he be under a special contract with the company to produce it when required is). Where an act gives power to make bye-laws and impose penalties, recoverable summarily before a magistrate, for a breach, and subsequently gives power to apprehend for an offence against the act, it appears that there is no power to apprehend for a breach of a bye-law {t). Railways may refuse to carry certain goods. Sect. 105. " No person shall be entitled to carry, or to require the company to carry, upon the railway any aqua- fortis, oil of vitriol, gunpowder, lucifer matches, or any other goods which in the judgment of the company may be of a dangerous nature ; and if any person send by the railway any such goods, without distinctly marking their nature on the outside of the package containing the same, or otherwise giving notice in writing to the book-keeper, or other servant of the company, with whom the same are left at the time of so sending, he shall forfeit to the com- pany twenty pounds for every such offence ; and it shall (p) Gofif V. Great Northern Rail- supra, way, supra. («) Woodard v. Eastern Counties (9) Eastern Counties Railway v. Railway, 4 L. T. Rep., N. S. 336. Broom, supra. (0 Chilton v. London and Croy- (r) Roe V. Birkenhead Railway, don Railway, 16 M. & W, 212. ON RAILWAY CARRIERS. 249 be lawful for the company to refuse to take any parcel that they may suspect to contain goods of a dangerous nature, or require the same to be opened to ascertain the fact." The latter part of this section, conferring the right to open goods suspected to be of a dangerous character, gives a railway carrier a privilege which has only a doubtful existence at common law ; but it does not authorize him to open goods for the purpose of estimating charges, &c. {u). Independently of this statute, railway and other carriers are irresponsible, at common law, for damage which may happen to goods of a destructive or peculiarly perishable nature, if it be not communicated to the carrier at the time of the consignment to him {x) ; and the sender is also civilly, although not criminally, responsible to the carrier for the former act. But when a railway act imposes a penalty for sending such goods by the railway, without communicating their description, a guilty knowledge of the nature of the goods is necessary to a conviction (?/). There seems to be no obligation on railway carriers to carry goods of a dangerous kind {z). Railways have powers under the 8 Vict. c. 20, to make Bye-laios. Sect. 108. " It shall be lawful for the company, frord time to time, subject to the provisions and restrictions in this and the special act contained, to make regulations for the following purposes (that is to say) : " For regulating the mode by which, and the speed at which, carriages using the railway are to be moved or propelled. " For regulating the times of the arrival and departure of any such carriages. {u\ Crouch v. London and North- (?/) Hearn v. Garton, 28 L.J. 216, Western Railway, 14 C. B. 255 ; 23 M. C. L. J. 73, C. P.; 2 Car. 8r Kir. 389. (z) Johnson v Midland Railway, (x) Hutchinson v. Guiun, 28 L. J. 4 Exch. 3G7 ; 18 L. J. 366, Exch. 63, C. P. 250 ON RAILWAY CARRIERS. " For regulating the loading or unloading of such car- riages, and the weights which they are respectively to carry. *' For regulating the receipt and delivery of goods and other things which are to be conveyed upon such carriages. " For preventing the smoking of tobacco, and the com- mission of any other nuisance, in or upon such car- riages, or in any of the stations or premises occupied by the company. " And generally, for regulating the travelling upon or using and working of the railway. " But no such regulation shall authorize the closing of the railway, or prevent the passage of engines or carriages on the railway at reasonable times, except at any time when, in consequence of any of the works being out of re- pair, or from any other sufficient cause, it shall be neces- sary to close the railway or any part thereof." (This latter provision refers to the statutory authority given by the act to the public to use their own carriages on tlie railway; but this power has not been exercised, and is practically inoperative («).) By the 8 & 9 Vict. c. 16, a company may make such bye- laws, as they may think fit, for the purpose of regulating the conduct of the officers and servants of the company, and for the due management of the affairs of the company, provided such bye-laws be not repugnant to the laws of the realm or of the company's special act : such bye- laws to be reduced into writing and sealed with the com- pany's seal, and a copy thereof to be given to every officer and servant of the company affected thereby (&). The company may impose on all such officers and servants penalties not exceeding five pounds, recoverable before a magistrate (c) ; and, on such a proceeding, a written or printed copy of the bye-laws, under the company's seal, is (a) See Parke, B., 18 L. J. 369, (h) Sect. 121-. Exch. (e) Sects. 125, 126. ON RAILWAY CARRIERS. 251 sufficient evidence of such bye-laws (d). The offences for which such penalties are imposed must be painted on a board, or printed upon paper pasted thereon, which board must be hung up or affixed on some conspicuous part of the principal place of business of the company ; and when the penalties are of local application, then in some conspi- cuous place in the immediate neighbourhood {e). As to the mode of recovering penalties, see the same act, ss. 145 — 160. The 3 & 4 Vict. c. 97, sects. 7 — 9, directs substantially, that no bye-law of a railway, made by authority of an Act of Parliament, shall be valid until two months after a certified copy of it shall have been laid before the Board of Trade, which may either allow it, or disallow it, either immediately or at any subsequent time. With reference to this provision the 8 & 9 Vict. c. 20, s. 109, enacts that :— " For better enforcing the observance of all or any of such regulations, it shall be lawful for the company, sub- ject to the provisions of an act passed in the fourth year of the reign of her present Majesty ... to make bye- laws, and from time to time to repeal or alter such bye- laws and make others, provided that such bye-laws be not repugnant to the laws of that part of the United Kingdom where the same are to have effect, or to the pro- visions of this or the special act; and such bye-laws shall be reduced into writing, and shall have affixed thereto the common seal of the company; and any person offending against any such bye-law shall forfeit for every such offence any sum not exceeding five pounds, to be imposed by the company in such bye-laws as a penalty for any such offence; and if the infraction or nonobservance of any such bye-law or other such regulation as aforesaid be attended with danger or annoyance to the public, or hindrance to the company in the lawful use of the railway, it shall be lawful for the conjpany summarily to interfere to obviate {d) Sect. 127. (e) Sect. 145. 252 ON RAILWAY CARRIERS. or remove such danger, annoyance or hindrance, and that without prejudice to any penalty incurred by the infraction of any such bye-law." Sect. 110. "The substance of such last-mentioned bye- laws, when confirmed or allowed according to the provi- sions of any act in force, regulating the allowance or con- firmation of the same, shall be painted on boards, or printed on paper and pasted on boards, and hung up and affixed, and continued on the front or other conspicuous part of every wharf or station belonging to the company, according to the nature or subject-matter of such bye-laws respec- tively, and so as to give public notice thereof to the parties interested therein or affected thereby; and such boards shall from time to time be renewed as often as the bye-laws thereon or any part thereof shall be obliterated or destroyed; and no penalty enforced by any such bye-law shall be recoverable unless the same shall have been published and kept published in manner aforesaid." Sect. 111. " Such bye-laws, when so confirmed, published, and affixed, shall be binding upon and be observed by all parties, and shall be sufficient to justify all persons acting under the same; and for proof of the publication of any such bye-laws, it shall be sufficient to prove that a printed paper, or painted board, containing a copy of such bye- laws, was affixed and continued in manner by the act directed ; and in case of its being afterwards displaced or damaged, then that such paper or board was replaced as soon as conveniently might be." It appears from these sections, that, in order that a bye-law should be valid, it is necessary, first, that it be reasonable, and not repugnant to the common law, nor to any provision either of the Railways Clauses Act, or of the company's special act; secondly, that it have been con^ firmed by the Board of Trade, or other authority nominated by the special act; and thirdly, that it have been duly published and affixed, so as to give the public actual or constructive notice of its existence. When these conditions ON RAILWAY CARRIERS. 253 have been satisfied, it appears certainly to have been the intention of the Legislature that the bye-laws should be held to be binding on all persons ; and unless such a construction be adopted, it seems difficult to say what is the use or object of a bye-law. On the first point there is no doubt, viz., that a bye-law must be reasonable, and not be opposed either to the common or statute law, and that it will be inoperative and void, although duly confirmed, if it be so opposed. Thus a power to make bye-laws is restricted closely within the original limits of the power; and a power to make bye-laws for certain specified purposes does not give a power to make bye-laws for other purposes {f). So, where a railway was empowered by its local act to make bye-laws for the good government of its affairs, with a power of imposing reasonable fines and forfeitures on persons offending against the same, and to arrest for nonpayment; and such bye-laws were to be binding upon and to be observed by all parties, provided they were not repugnant to the law of England ; it was questioned, whether the company had power to make a bye-law, by which the fare from the place from which the train started originally was to be paid if the passenger did not produce his ticket when required : and it was held, that the nonproduction of the ticket did not involve such a penalty or forfeiture, as would authorize the company to arrest the passenger on his subsequent refusal to pay for the whole distance {g). So, where a railway company, under the Railways Clauses Act, made a bye-law, that every passenger should be subject to a penalty of 40^. if he entered the train without having previously paid his fare, or if he refused to show his ticket when required ; it was admitted, that there was no question as to the validity of the bye-law ; and Lord Campbell, C. J., said, that it was " an exceedingly reasonable bye-law ;" although his Lord- ship said that he " cautiously abstained from expressing, (/) Child V. Hudson's Bay Com- {g) Chilton v. London and Croy- pany, 2 P. Wms. 209. don Railway, 16 M. & W. 212. 254 ox RAILWAY CARRIERS. any opinion as to the power of the company to make special regulations or bye-laws, so as to enforce larger fares for shorter distances" (Ji). So even a regulation, not depending on a bye-law, by which certain persons are excluded arbitrarily from the company's premises at times when the public generally are admitted, is not void for unreason- ableness, nor is it cause for an injunction (i). But, where a canal company was empowered to make bye-laws for the good government of the canal, and to impose reasonable fines on persons offending against the same; it was held that a bye-law closing the canal on Sundays, except on certain rare necessities and occasions, and imposing a fine of five pounds for a breach, was unreasonable, illegal, and void (A), And where a company, having powers under its special act to make bye-laws " for the good government of the affairs of the company, and for the management of the said undertaking," made a law that " every first-class passenger should be allowed to carry 112 lbs. of luggage free of charge ; but that the company would not be re- sponsible for the care of the same unless booked and the carriage thereof paid for;" the bye-law was held to be void, since it was in contravention of a clause in the same special act, by which the company were to be liable as common carriers, without extra charge, for articles of a certain weight and dimensions (Z). Where a bye-law was made under a local act for regu- lating the stands of hackney carriages, the bye-law was held good, although it did not specify distinctly the exact localities of such stands. In this case it was said, that " the old rule of law which says that a bye-law, bad in part is bad in the whole, is qualified to this extent, that if tlie good part be independent of and unconnected with the bad, the {h) R. V. Frere, 24 L. J. 71, M. C. pany v. Pilling, 14 M. & "\V. 76. (i) Barker v. Midland Railway, (/) Williams v. Great Western 25 L.J. 1S4, C. P. ; Beadell r. East- Railway, 10 Exch. 15; cf. Great em Counties Railway, 26 L. J. 250, Western Railway v. Goodman, 12 C. P. C. B. 313. {!:) Calder and Hebble, &c. Com- ON RAILWAY CARRIERS, 255 good part would be valid and binding" (/«). These cases clearly establish the principle, that a bye-law must be reasonable, consonant to law, and confined within the scope of the power to make bye-laws. On the second point there is also no doubt, viz., that a bye-law must have been duly approved and confirmed by the Board of Trade, or other authority, before it can operate. But the third point, viz., as to the effect of publication, has been warped, apparently, from its literal and, it is submitted, its true construction by the authority of an eminent judge, whose incidental dicta are entitled to the most respectful consideration. The case is that of The Great Western Raihvay v. Goodman (n). There the company, by their special act, had powers to make bye-laws for the manage- ment of their railway, which were to be affixed and published at the different stations; and when so affixed and published, they were to be " binding upon and observed by all parties." The section of the special act corresponds substantially with that of the 111th section of the Railways Clauses Act. The validity of the bye-law was undisputed; but there was no evidence that the plaintiff knew actually of the existence of the bye-law, nor does there seem to have been distinct evidence of publication. Maule, J., is reported to have asked the counsel for the railway, " Can the bye-law have any effect on a plaintiff who is not shown to have had any notice of it ?" It may fairly be presumed that a learned judge, who never asked an unmeaning question, w^as not intending to raise a doubt as to the intention of an act, the language and spirit of which appear beyond the utmost subtlety of misapprehension; but that he was referring to the state- ment of the case on appeal, which does not appear to have found expressly that the bye-law was duly published, al- though it was agreed that it should form part of the case. But if it was intended to suggest that a bye-law, duly made and published, is not binding on a person who is not (»i) Blackpool Board of Health («) 12 C. B. 313; 21 L. J. 197, V. Bennett, 4 H. & N. 127. C. P. 256 ON RAILWAY CARRIERS. shown to have had actual notice of it, it may be submitted, with respectful confidence, that such a construction is wholly opposed to the doctrine and principles of construe- tive notice as established in the analogous case of notices under the Carriers Act ; and that the effect of it, if adopted, would be to render all otherwise valid bye-laws a dead letter. The dictum was also obiter, and does not appear to have been adopted by any other members of the court. But the principle which the case decided is the important one, that a bye-law, valid in other respects, may be ren- dered constructively nugatory and inoperative, if there be evidence that the company have not acted on it, and have shown no intention to treat it as operative. In accordance with the above view, it has since been decided, that where it has been shown that a bye-law has been affixed, in the manner directed by this act, at the two stations respectively at which the passenger entered and left the carriage, there is sufficient proof of publication ; and it is not necessary to prove that copies of the bye- law were affixed at every other station on the line. At the same time it was decided, that bye-laws, made under the 8 & 9 Vict. c. 20, ss. 108 — 111, are documents of a public nature, and proveable as such by examiaed or cer- tified copies under 14 &; 15 Vict. c. 99 (o). Under some of the special railway acts notice of action must be given before any action can be brought for any personal injury to a passenger. But this is not generally necessary (j9). A railway ticket may be the subject of an indictment for larceny (§'), or for obtaining a chattel by false pretences; although, in both cases, there may be an intent to return the ticket to the railway company at the end of the journey (r), (o) Motteram v. Eastern Counties Rep. 233. Railway, 29 L. J. 57, M. C. («) 18C.B.805; 26L.J.25,C.P.; Railway, 4 C. B., N. S. CTG ; 27 L.J. s. V. Erie, J., 27 L. J. 472, Q. B. 308, C. P. 264 RAILWAY AND CANAL TRAFFIC ACT, 1854. case, as in the preceding one, it seems to have been assumed, rather than argued, that the condition was not bad as purporting to exempt from habihty for every description of negligence ; and so far it is also overruled by M'Manus's case. It was also held, in this case, that conditions may be good in part and bad in part ; and that they are not void as a whole because a portion of them cannot be sus- tained (o). At the same time the court decided in a county court )ase, which was sent back to the judge to be re-stated, hat only the judges of the superior courts, and not the udges of county courts, can decide on the reasonableness of a condition under the statute (p). In White v. Great Western Railway {q), the condition was, that " the company will not, under any circumstances, be liable for loss of market, or other claim arising from delay or detention of any train, whether at starting, or at any of the stations, or in the course of the journey." This condition was held reasonable, and to protect the defendants from liability for undue delay in forwarding the plaintiff's goods in time for a specified market. So where the condition was, that "the company is to be held free from all risk or responsibility in respect of any loss or damage arising in the loading or unloading of cattle, from suffocation, or from being trampled or bruised, or otherwise injured in transit, from fire, or from any cause whatsoever j" it was held to protect the defendants from responsibility for the loss of cattle by suffocation during the journey, although caused by the negligence of the servants of the defendants. Martin, B., said : " The com- mon law liability of common carriers does- not apply to cattle at all. In former days they were not carried. They might, therefore, but for the statute, make what conditions (o) Cf. Harrison v. London, &c. Railway v. Dunham, 18 C. B. 326 ; Railway, 29 L. J. 217, Q. B., Wight- 26 L. J. 25, C. P. man, J. (5) 2 C. B., N. S. 7 ; 26 L. J. 138, {p) London and North-Western C. P. RAILWAY AND CANAL TRAFFIC ACT, 1854. 265 they pleased." Bramwell, B., said : " It would be quite monstrous to say that such a bargain might not be made between man and man. It seems quite reasonable that the company should say, *We will not be liable for any injury done to the cattle by our servants ;' they receive d, smaller sum for the carriage of the cattle in consequence of their being exempt by the contract from liability; and it would be very strange if we were to hold that, after such a contract was made, the owner of the cattle might recover. I think the question of reasonableness under the statute does not arise ; but, if it does, I think that such a notice would be reasonable" (r). Although these two last cases have not been expressly overruled, it may be submitted that they have been virtually overruled by M'Manus v. Lancashire, &c., Railway, and Beal v.. South Devon Railway, which will be noticed later, so far as they purport to exempt from liability for gross or wilful negligence. In Peek v. North Staffordshire Railway (5), the following condition was held to be reasonable : — " The North Staf- fordshire Railway Company hereby give notice, that they will receive, forward, and deliver goods solely subject to the conditions hereunder stated. 5th. That the company shall not be responsible for the loss of, or injury to, any marbles, musical instruments, furniture, toys or any other articles, which, from their brittleness, fragility, delicacy or liability to ignition, are more than ordinarily hazardous, unless declared and insured according to their value." This condition was held to protect the company from respon- sibility for damage by wet, without wilful negligence, to some marble chimney-pieces which had been sent expressly under a duly signed special contract not insured, and which would not have been damaged if they had been of ordinary stone, such as granite. The judgment of the court was partly reversed in error (t), on the collateral question, which (r) PardinKton v. South-Wcstern (.$) El., B. & El. 958; 27 L. J. Railway, I H. & N. 392 ; 20 L. J. 465, Q. B. 105, Exch. (/) El., B, & El. 986; 29 L. J. 97, Q. B. 266 RAILWAY AND CANAL TRAFFIC ACT, 1854. will be noticed later, whether the contract had been signed sufficiently within the statute. But the above result re- mains the same. In M'Manus v. Lancashire and Staffordshire Railway (k), the question arose, of which the affirmative seems to have been assumed in Simons v. Great Western- Railway and Pardington v. Great Western Railway; viz., whether a special contract is good which embodies a condition by which a railway company is exempted from responsibility for wilful or gross negligence. The action was for damage to some horses during their transit from Liverpool to York, in a truck which appeared to be sufficient for the purpose, but which proved not to be so, as a hole was made in it during the journey, and the horses were thereby injured. There was no evidence of express negligence in the de- fendants (x) ; and the question turned on the reasonable- ness of the following special contract, on which the de- fendants relied, and which had been signed by the plaintiff. " This ticket is issued subject to the owner's undertaking all risks of conveyance, loading and unloading whatsoever, as the company will not be responsible for any injury or damage (howsoever caused) occurring to live stock, of any description, travelling upon the Lancashire and Yorkshire Railway, or in their vehicles. H. M'Manus, owner, or on the owner's behalf, agrees to the above terms." The Court of Exchequer held this condition to be reasonable, and the contract therefore good ; and also on the gromid that the carriers are not liable for damage to live animals without negligence. This judgment was reversed in the Exchequer Chamber (dissentiente Erie, J.) on the ground that the condition was unreasonable, as it professed to exempt the defendants from responsibility for wilful negli- gence. The majority of the court said : " It would, we think, not only be unreasonable, but mischievous, if the defendants (u) 2 II. & N. 693; 27 L. J. 201, (.r) Cf. Coxon v. Great Western Exch. ; l H. & N. 327; 2S L. J. Uuilway, 5 H. & N. 274; 29 L.J. 353, Exch., Sc. Cam. 165, Exuh. RAILWAY AND CANAL TRAFFIC ACT, 1 854. 267 were to be allowed to absolve themselves from the conse- quences of neglecting to perform properly that which seems naturally to belong to them as a duty. It is unreasonable that the company should stipulate for exemption from habihty for the consequences of their own negligence, however gross, or misconduct, however flagrant ; and that is what the condition professes to do. That condition is therefore void ; and the case stands simply on the ground, that the plaintiff has employed the defendants to carry his horses safely, and that they have used an insufficient and improper vehicle for that purpose, whereby the horses have been injured." It may be remarked, that the judgment of the Exche- quer Chamber in this case, which was for the plaintiff generally, seems to have proceeded entirely on the ground that the condition was unreasonable ; and the court seems to have ignored the fact, which was noticed particularly in the court below, that no negligence in fact was shown : and as the defendants do not appear to have been sued as com- mon carriers, it must be inferred that the superior court either considered that the circumstances justified the infer- ence that the defendants were common carriers, and there- fore liable as insurers ; or that negligence in law was pre- sumed from the fact of the accident, according to the doctrine, which has been already noticed {y), that damage by accident is j)rimd facie evidence of negligence. It also indicates that, contrary to the view of Erie, J., in the Exchequer Chamber, and of the court below, goods and live stock are on the same footing under the 17 & 18 Vict, c. 31, s. 7 ; and that it is equally unreasonable and illegal in both cases for a carrier to stipulate that he will carry only subject to a condition that he shall not be liable for damage by his negligence. The later case of Harrison v. London and Brighton Railway (z), supports this view. There the defendants were sued us coiiimon carriers for the loss of a- retriever (y) Supra, \>. 126. (2) 29 L. J. 20'J, Q. i]. 268 RAILWAY AND CANAL fRAFt'IC ACf, 1854. dog" valued at 2\l. Instead of being put in the usual dog box, it had been put in a horse box of the train, where the plaintiff's horse had been placed, at the suggestion of a servant of the defendants, and with the consent of the plaintiff's servant in whose charge it was; and it was lost during the journey, without express negligence in fact, by the dog casually escaping through a window of the box. When the defendants received the dog the plaintiff signed the following ticket : — " London, Brighton and South Coast Railway. Horse, Carriage and Dog Ticket. No. 2, 249. 12 o'clock Train. Date, Oct. 29, 1858. From to "Worthing. Amount paid. £ s, d. 2 . . horses 1 12 4- wheel carriage 1 . . 2-wheel carriage 110 1 . . doer 3 2 16 Name, Harrison. Received the annexed ticket subject to the following conditions : — The company will not be liable in any case for loss or damage to any horse or other animal above the value of 40?., or any dog above the value of 5/., unless a declaration of its value, signed by the owner or his agent, at the time of booking, shall have been given to them; and by such declaration the owner shall be bound, the company not being in any event liable to any greater amount than the value so declared. The company will in no case be liable for injury to any horse or other animal, or dog, of whatever value, when such injury arises wholly or partially from fear or restiveness. If the declared value of any horse or other animal exceed 40/., or any dog 51., the price of conveyance will, in addition to the regular fare, be after the rate of 2^ per cent., or 6d. per pound, upon the declared value above 40/., whatever may be the amount of such value, and for whatever distance the horse or other animal is to be carried. Daniel A. Harrison, the owner, or on the owner's behalf. A. G. S., booking-clerk." It was held by the majority of the court, first, that the meaning of this ticket, the whole of which must be read together, was, that if the value of a dog was above 51., and its value was not declared, and the extra price paid RAILWAY AND CANAL TRAFFIC ACT, 1854. 269 accordingly, the defendants would not be liable at all, even, for loss or injury caused by their own negligence, and that the condition was, therefore, void within the 17 & 18 Vict, c. 31, s. 7 ; secondly, that this condition was not "just and reasonable," because the extra charge of 2| per cent, (with- out proof to the contrary, which it lay on the defendants to give), appeared excessive and unreasonable ; and, thirdly, that the condition being void, the plaintiff, although there was no negligence on the part of the defendants, was en.- titled to recover the full value of the dog against them as common carriers. The judgment in this case was in strict agreement with that of the majority of the Court of Exchequer Chamber in M'Manus v. Lancashire, &c. Railway ; but as Erie, J., dissented there, so Wightman, J., dissented in Harrison v. London, &c.. Railway, on the ground that the different clauses of the ticket were separable, and that the first meant that the defendants would not be liable beyond 5/. for injury however caused ; and that this was a reasonable condition, which precluded the plaintiff from recovering more than 5/. But the doctrine of M'Manus v. Lan- cashire Railway still embodies the law as it is on the subject, although many judges have expressed dissatis- faction with that case in the Exchequer Chamber. But it was again recognized in Beal v. South Devon Railway (a). There fish had been sent from Torquay to London by a morning train ; and the action was for not delivering it in time for the Billingsgate market, as, according to the ordi- nary course of the business of the defendants, it ought to have been delivered. The delay did not appear to have arisen from negligence. The defendants were not sued as common carriers, and they relied on a signed special con- tract, by which it was stipulated that they would not " be responsible, under any circumstances, for loss of market, or other loss or injury arising from delay or detention of trains, exposure to weather, stowage, or from any cause (a) 5 II. & N. 875 ; 29 L. J. 441, Exch. 270 RAILAVAY AND CANAL TRAFFIC ACT, 1854. whatsoever, otlier than gross neglect or fraud." The de- fendants had also given a pubUc notice that they carried fish by special agreement only and on the above terms. The majority of the court, Pollock, C. B., Bramw^eli, B,, and Channell, B., held that the italicized words took the case out of that of M'Manus, and that it was a reasonable condition for the conveyance of fish. But Martin, B., held that the case came within that of M'Manus. Bram- well, B., while declaring himself bound by that case, inti- mated a strong disapprobation of it. In an earlier case, which does not seem to have been noticed in Beal v. South Devon Railway, fish had been consigned to be carried from Yarmouth to London : and the plaintiff had signed a notice by which the defendants undertook only to deliver within a reasonable time. At an intermediate station the truck containing the fish was shunted aside, from some unexplained cause, and forgotten. Consequently it was not taken to London by the usual train, but by a later one ; and the plaintiff lost the market which he would otherwise have had. As the plaintiff had sent fish before by the same train, and in the usual course of traffic it had arrived in time for the market, the defend- ants were held liable for the delay and non-delivery in due time. This case is clearly distinguishable from the pre- ceding one, as the special contract did not purport to protect the defendants from the consequences of their neg- ligence {b). In Lewis v. Great Western Railway (c) the condition was, that " the company will not be answerable for the loss of goods untruly or incorrectly described. No claim for loss will be allowed unless made within seven days after the time when the goods should have been delivered." This was held to be reasonable, and to protect the defendants against a claim for books and clothes contained in packages which had been delivered to the defendants as (b) Wren v. Eastern Counties Railway, 3 L. T. Rep., N. S. 5. (e) 5 H. & N. 8C7 ; 29 L. J. 42,3, Exch. RAILWAY AND CANAL TRAFFIC ACT, 1854. 271 " furniture;" and when the claim was made more than seven days after the arrival of the packages at the station, but within seven days of their actual delivery to the plaintiff at his residence, A regulation, under a railway company's private act, that passengers shall not be allowed to place wearing apparel, shawls, and the like, in the luggage van of a train, without some wrapper to cover them, has been held unreasonable and void (d). No certain criterion of the reasonableness of a condition has been yet given ; and it has been said that " reason- ableness is a relative term. A thing may be reasonable with reference to certain circumstances, when with re- ference to certain other circumstances it may be unreason- able" (e). It has been said also, that even " a condition which excludes all liability may be reasonable, provided a reasonable bond fide alternative is offered to the cus- tomer" ( /) ; and, at the same time, Cockburn, C. J., cited M' Andrew v. Electric Telegraph Company (^), to show that all liability for inaccuracy in the transmission of a message may be well excluded, if a customer may secure accuracy by paying a higher rate for a repeated message. Thus, in Harrison v. London, &c. Railway, the condition was thought unreasonable, not because the company charged more for the carriage of dogs above 51. in value than for dogs below that value, but because the rate of insurance and extra charge were out of due proportion to the increased value ; and hence, there was no bond fide alternative afforded to the plaintiff. It will be apparent from the preceding cases, and from the language of 17 & 18 Vict. c. 31, s. 7, that all general conditions, as well as all special conditions, by which a (rf) Munster v. South-Eastern (e) Per Bramwell, B., 5 H. & N. Railway, 4 C. B., N. S. 676; 27 885; 29 L. J. 446, Exch. L. J. 308, C. P.; cf. Erie, J., 27 (/) Per Blackburn, J., 29 L. J. L.J., 473, QB. 212, Q.B. {g) 17C.B. 3; 25 L..T. 26,C. P. 272 RAILWAY AND CANAL TEAFFIC ACT, 1854. railway or canal company seeks to free itself from re- sponsibility for wilful or gross negligence, are absolutely void ; and it will probably be thought that any such general or special condition, by which such a company proposes to become irresponsible for any kind of actual negligence, falls within the same prohibition. To bring a company within this rule, it is enough that they are carriers; and it is not necessary that they should be common carriers. Nor does the act diminish in any way the rights, privileges, and liabilities which they have under the 1 1 Geo. 4 & 1 Will. 4, c. 68 (the Carriers' Act) ; while it expressly retains such rights and liabilities, with respect to articles of the descriptions mentioned in that act. A special contract under the 7th section is signed suf- ficiently if it be signed by the consignor of goods, and acted upon by the railway company. This was decided in Peek v. North Staffordshire Railway (h). There the plaintiffs' agent signed an order, " Please to forward the marbles not insured." The Court of Exchequer held that this was insufficient evidence of a contract under the statute, and that parol evidence could not be imported to complete it. But this judgment was reversed in the Ex- chequer Chambei", aiid the rule was laid down as stated above. (h) El., B. & El. 958 ; 27 L. J. 465, Q. B. ; Sc. Cam., EL, B. & El. 986 ; •29 L. J. 97, Q. B. ( 273 ) CHAPTER XIV. ON INJUNCTION!? UNDER THE T7AILWAV AND CANAL TnAFFIC ACT, 1854 ON THE SCALR OF CIIAKGES. A PRINCIPAL object of the 17 & 18 Vict. c. 31, was to counteract and limit the tendency of railway carriers to establish systems of favouritism and preference, by which they advanced their own pecuniary interests, and those of some of their customers, to the detriment of less favoured customers, and of the public generally. It was discovered, very soon after the establishment of railways, that one practical result of their institution was, not only to damage seriously, and almost to destroy, the trade of private carriers, but to give railway carriers almost unlimited opportunities of dictating their own terms, and of imposing their own scale of charges on the public. The legislature, while admitting the necessity and policy of open com- petition, thought it only just to private carriers, in the first instance, that the sacrifices, to which they were bound to submit on public grounds, when road carriage was super- seded by railway carriage, should not be augmented, un- duly and unnecessarily, by permitting railway companies to complete the ruin of one class, or of members of a class, of carriers, by making unreasonably preferential bargains with other classes of such carriers, or with individuals of such classes. It was still more anxious to prevent the interests of the public from suffering by the inexpedient absorption of other modes of traffic and carriage in the powerful monopolies of railway companies. A great abuse had grown up in the practice of railway T 274 ON INJUNCTIONS UNDER THE carriers to carry for certain customers at rates reduced, dis- proportionably and causelessly, below those which the com- panies offered to the public generally (a). Such a practice, as has been stated already (b), was probably illegal^ although the 17 & 18 Vict. c. 31, s. 2, appears to have been passed for the express purpose of rendering it so in the case of railway and canal carriers. Independently of that statute, it is still lawful for a public company, entitled to take tolls from the public, to remit such tolls at their pleasure and discretion, or any portions of them, in favour of particular persons (c). In the uncertain and difficult applicability of the common law to collusive combinations between railway carriers and particular customers, many of the private acts of railway companies were furnished with enacting, or declaratory, clauses, by which they were bound to charge fairly, equally, and reasonably, to all persons alike under like circumstances (d). This principle is extended by the 17 k 18 Vict. c. 31, s. 2, and the four following sections, to all railway and canal companies. The second section enacts substantially that such com- panies shall give all reasonable facilities for receiving, for- warding, and delivering traffic ; and that they " shall not give any undue or unreasonable preference or advantage to or in favour of any particular person or company, or any particular description of traffic, in any respect whatsoever; nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever." Continuous and conterminous rail- way or canal companies must observe the same rule ; and must provide all reasonable facilities for forwarding traffic by their respective routes, and must afford the public all reasonable accommodation. (rt) See Parker v. Great Western Steamboat Company, 30 L. J. 2o, Railway, 7 M. & G. 253 ; and infra. Q. B. (b) Supra, p. 202. {d) Infra. (c) Hungerforcl Company i'. City RAILWAY AND CANAL TRAFFIC ACT, 1854. 275 To carry out the pinposes of this section, the Court of Common Pleas in England, the Court of Session in Scot- land, and any of the superior courts in Dublin, have power to entertain any complaint from any company, or indi- vidual, that any provisions of the act have been infringed. These courts may either refer the ground of complaint to an engineer or other arbitrator; and, if satisfied that it is well founded, may issue an injunction, or interdict, to the company against further continuing the violation of the act. In case of disobedience, an attachment will issue against any of the directors of the company, or other person failing to obey the injunction. In this case the court or judge may order the company to pay money into court, not exceeding 200Z. (sect. 3). The court has also power to make rules for carrying the act into effect (sect. 4); under which power they acted by issuing rules in Hilary Term, 1855(e); and, if they think fit, may direct a rehearing of an application, and may vary a previous order (sect. 5). These enactments do not at all take away nor diminish the common law rights of any person against the company (sect. 6) : and hence it follows that recourse to the statute, for a remedy against unreasonable charges by a railway carrier, is a cumulative privilege, which does not interfere with the customary common law right to recover back excessive charges, or to sue such carrier as a common carrier for refusing to carry (/). Thus it will be seen that the statute imposes a new and difficult duty on the specified courts, to determine whether a particular mode of traffic, or a particular scale of charge by railway or canal company carriers, is or is not an undue and unreasonable advantage derived from their position as carriers, who are invested practically with a statutory monopoly. No rule for the guidance of the court is given by the statute. Nothing can be larger, nor less explicit than its language. It may be that the nature of the enactment precluded a more distinct explanation of (e) See Appendix. (/) Supra, p. 200. t2 276 ON INJUNCTIONS UNDER THE its intention and scope ; but it is clear that it gives the judges of the superior courts unHmited powers in the ex- tension or restriction of the definition of " unreasonable or undue preference ;" while it affords them no canon of construction, except that which may suggest itself in- tuitively from the particular circumstances of each case. The second section of the act has not received quite the same aiiiount of judicial condemnation which has been lavished freely on the seventh section {g) ; but, from the first, the judges have complained that they have been required by the legislature to determine "questions of a very difficult and complicated cliaracter, and such as they feel but little qualified to decide" ( //). In a subject, therefore, which, from its nature, is one of particular and isolated details ; of special computation, rather than of comprehensive principle ; it will not be matter of surprise that few general rules have been settled, and that still fewer have been stated distinctly and unre- strictedly. The courts have acted on the privilege, which the statute undoubtedly gives them, of doing rough justice between the companies and the public ; taking care to bend the interests of the former to those of the latter, rather than those of the latter to the former; and of regarding the tendency of a pernicious practice, and the complexion of a doubtful one, as well as manifest objections to one which has resulted already in public or private loss. When the grievance has been reducible to one of arithmetic and calculation, the court has not failed to treat it as one of figures, in which they have always considered the fair interests of the companies, as well as those of the public, and of private individuals. But when the grievance passes beyond the province of arithmetic, and has been remotely, or even suspiciously, wrong in principle, rather than ob- viously unfair in practice ; the court still does not hesitate to follow the j)recedents of a court of equity, and to {g) Supra, p. 2G2. Counties Railway, 1 C. B., N. S. (h) Per Cresswell, J., in giving 452 ; 26 L. J. 93, C. P. judgment in Ilansome v. EastL-rn RAILWAY AND CANAL TRAFFIC ACT, 1854. 277 mould its decrees to suit the rights and expediency of par- ticular cases (i). One of the first cases decided that an action will not lie, and tlierefore it is to be inferred that an injunction will not be granted, against a railway company for refusing to admit a carrier of passengers and goods within the precincts of their station, to which they admitted the public generally; but if there had been sufficient evidence of a dedication to the public, which there was not in this case, it would have been difilerentCj). But if the company admit one carrier within their station, while they exclude another, under substantially similar circumstances; an injunction will be granted to compel the company to admit a complainant at all reasonable times, in the same way as they admit other vehicles of the same kind. This was the form of the in- junction, when it appeared that the company admitted W., a carrier of passengers and goods from Kingston to the Kingston station, within the station; but excluded M., a carrier, similarly from the Kingston station to Twickenham, Teddington, and other places ; in consequence of which ex- clusion the passengers by M. had to walk, and carry their luggage and goods seventy-five feet into the station. But it is not to be inferred from this case that a railway com- pany have not the right to limit reasonably the admittance of public vehicles, within the area of their stations, for the purpose of taking up and setting down passengers or goods {k). It must be noticed, however, that the injunction was granted in this case, not because W. had an undue preference over M., which does not seem to have been affirmed ; but because a public inconvenience was caused to M.'s customers, which W.'s, under similar circumstances, had not to suffer. Therefore, where a company granted to C, for a fixed annual sum, the exclusive right of having his (i) Cf. Cooper V. Loiulon and Company, IS C. B. 4G ; 25 L. J. South- Western Kailway, 4 C. 15., 1S4, C. P. N. S. 7G8 ; 27 L. J. 324, C. P. (k) Marriotts. London and South- (;■) Barker v. Midland Railway Western Railway, 1 C.B., N. 8.499; 26 L. J. 154, C. P. 278 ON INJUNCTIONS UNDER THE cabs stand tor hire within the station; an injunction was refused, to make the company allow another cab proprietor a similar right to have his cabs stand within the station, because it did not appear that any public inconvenience was caused by the company's arrangement with C. ; and also, it may be presumed, from later cases, because it did not appear that the due interests of the company had been unfairly considered ; nor that they had refused, for equal consideration, to grant a corresponding privilege to the applicant {I). To the same effect is Ex parte Painter, where Cresswell, J., said : " Before we put the powers of the act in motion, we must be satisfied that there is some sub- stantial injury or inconvenience to the public, and that the complaint is made bond Jidc on behalf of the public (m). In Marriott v. London and South-Western Eailway, it ■was suggested by Cockburn, C. J., that a railway com- pany is bound to find reasonable accommodation for the public ; and that if people had had to walk the seventy- live feet in wet weather, without a covered way, the accom- modation v.'ould not have been reasonable. This doctrine conflicts with a dictum of the court in Blackmore v. Bristol and Exeter Railway (n), but seems to be confirmed by Caterham Railway v. London and Brighton Company, &c. (o), where an injunction was granted to compel the defendants to make a covei-ed station at the junction of their railway vAth. that of the complainants, as being a rea- sonable accommodation to which the public were entitled. In these cases, and also in the follovving one, importance was attached to the principle, that an injunction will be granted only where the grievance is one of a kind which is likely to be injurious to the public interests ; and not merely prejudicial to private interests. This distinction has been assumed, but perhaps not followed quite so expressly in later cases. In some, perhaps, it may appear to (l) Beadell v. Eastern Counties («) 8 E!l. & B. lOJO ; 27 L.J. 171, Railway, 2 C. B., N. S. 509 ; 26 L. J. Q. B. 250, C. P. (o) 1 C. B., N. S. 410; 2G L. J. (m) 2 C. B., N. S. 705. 161, C. P. RAILWAY AND CANAL TRAFFIC ACT, 1854. 279 have been lost sight of; or at most to have been indis- tmctly before the mind of tlie court. But, in Barrett v. Great Northern and Midland Railway (p), the application was founded on a personal inconvenience, v/hich the com- plainant alleged that he had sustained, by the refusal of the Great Northern Railway to book him through from King's Cross to a station on the Midland Railway, which was con- tinuous to and adjoining the Great Northern Railway ; and for a similar refusal by the Midland Railway to book him through to King's Cross, on the return journey. The rule nisi was discharged with costs, because it did not appear that any public inconvenience had been sustained : and it was stated by Cockburn, C. J., " that it is not indispen- sably necessary to shovv' a case of individual grievance ; but it is clear that a case of public inconvenience must be made out." In Ransome ik Eastern Counties Railway (q), the com- plaint was, that the defendants carried coals for P. from Peterborough, at a lower sum per ton ])e\' mile than they charged the complainant for carrying his coals from Ipswich to various places on the line. It appeared that this arrange- ment with P., who brought his coals by inland road, was to enable him to compete with the complainant, who brought his coals by sea to Ipswich. The court granted an in- junction, that the defendant should carry the complainant's coals on equal terms with P., having due regard to the circumstances, if any, v.hich rendered the costs of con- veying for P. less than the costs for conveying for the complainant. It appeared that P. used his ovv'n trucks, and that the complainant used the company's trucks ; and it was held, that this element of extra charge was fairly computed by the company in charging P. less than the complainant. The court also threw out the suggestion, which has since been established, that the fair interests of the company are to be consulted in such cases ; and that companies may reasonably charge a less proportionable (p) 1 C. 13., N. S. 42.3 ; 2G L. J. 8.3, C. P. Iq) 1 C. B., N. S. 437 ; 2G L. J. 91, C. P. 280 ON INJUNCTIONS UNDER THE taiilF for larger guarantecil quantities of traffic, and may diminish the tariti" in proportion to the increased length of the transit. This case and doctrine were expressly confirmed and acted on in Oxlade v. North-Eastern Railway {r), where the facts were very special, but resolved themselves into a complaint : — 1st. That the company carried coals for third persons at a lower rate than they charged the complainant. On this point the Master's report found, that the circum- stances justified the lower rate, and that similar facilities were open to the complainant. Acting on the rule in the preceding case, the court held, that the fair interests of the company were properly considered, and that no injunction ought to issue. The 2nd ground complained of private agreements, which the company had made with third persons, to convey northern coke into Staffordshire at a reduced rate. The court held, that a desire on the part of the company to introduce northern coke into Staffordshire was not a legi- timate ground for making such agreements ; and that, as the pecuniary interests of the company were not affected thereby, on this ground an injunction ought to issue in the terms of the preceding case. But 3rd. The court refused to compel the company to pro- vide trucks for carrying the plaintiff's coals, after he had refused to pay demurrage, at the same rate as other cus- tomers paid under like circumstances. In Jones v. Eastern Counties Railway {s), the applica- tion was to compel the defendants to issue season tickets between Colchester and London, a distance of fifty miles, on the same terms as they issued them between Harwich and London, a distance of seventy miles : the charge from Harwich through Colchester to London being 20/. per annum, and from Colchester to London 4-3/. It was sug- gested tliat this arrangement gave an unfair preference to (r) 1 C. B., N. S. 455 ; 26 L. J. 129, C. P. (*} 3G. B., N.S. 718. RAILWAY AND CANAL TRAFFIC ACT, 1854. 281 the inhabitants of Harwich over those of Colchester; but the court, without assigning reasons, refused a rule, on the ground, apparently, that there was no real competition of interests between the two towns (t). In Cateiham Railway v. London and Brighton, &c. Railway (m), an injunction was sought on the grounds — 1st. That the defendants, who were two distinct com- panies, ran trains at a less proportionable charge, on their ov/n main line and branches, than they ran them on their conterminous lines to the terminus of the line of the com- plainants, whose railway formed a short branch from the line of one of the defending companies. 2nd. That the trains did not stop often enough at the junction station. 3rd. That the defendants did not issue return third class tickets to Caterham, as they did on their own lines and branches. 4th. That there was no covered station at the junction. The court granted an injunction on the fourth ground only, as disclosing a case of public inconvenience, as well as of undue preference against the complainants. On the three other grounds they held, that no public inconvenience, and no preference to any similar species of traffic, were shown to exist; and that no injunction also should issue, as it did not appear that the charges on the main lines, and branches of the defending companies, were higher pro- portionably than those to the Caterham stations ; and that as to the third class tickets it did not appear that they were issued to any station below one of the earlier stations, — Croydon, — on the line of the defending companies. In Harris v. Cockerraouth and Workington Railway (a:), the colliery of the complainants, and F.'s colliery adjoined the railway; and in point of (juantity of traffic, and length of transit, there was no substantial difference. The de- (/) Cf. Ilozicr I'. Caledonian Rail- ICl, C. P. way, 3 C. B., N. S. 720, n. (.r) 3 C. B., N. S. COS; 27 L, J. (u) 1 C. B., N. S. 410 J 2G L. J. 1G2, C. P. 282 ON INJUNCTIONS UNDER THE fenclants proposed to justify a lower tariff in favour of F., who was a tenant of Lord L., on the ground that thereby Lord L. had been induced to desist from conveying his coals by the ordinary road, and to carry them by the rail- way ; and also because Lord L. had threatened to construct another railway for carrying coals if the defendants did not agree to carry for F. at the reduced tariff. The court held that the injunction ought to issue, as the agreement was of a private nature, and void, therefore, as not founded on a rule applicable to all persons similarly circumstanced. Cockburn, C J., said : — " Whatever rule the company may lay down, it ought to be a rule applicable to all per- sons similarly circumstanced. I do not think this is such a rule. It is plain that, if we were to take into con- sideration the circumstances upon which r\Ir. Manisty relied, there is no case in vvhich we should not be called on to enter into a consideration of the various circum- stances which may influence one person, as distinguished from another, in sending his goods by a particular railway. Circumstances diflier in every individual case; and it might always be a question how far the company would be jus- tified in making particular bargains. I do not think it was the intention of the legislature, or its policy, when railways were constituted, that they should have the power of making bargains Vvith particular individuals, so as to give them advantages, and subject others to corresponding disadvantages. The intention of the legislature was, I think, to give equal advantages, as far as the rate of charge is concerned, to all individuals similarly circumstanced; and that a railway company, although they should have a right to lay down certain rules in reference to particular circumstances, provided they act hona fide with regard to their ov\'n interests and the interests of the public, should not be at liberty to make particular bargains with particular individuals, whereby one person is benefited and another injured. On that principle, as I think, the grounds put forward by the company are not sufficient to justify the RAILWAY AND CANAL TRAFFIC ACT, 1854, 283 preference they have given to Messrs. Fletcher over the complainants, this rule ought to be made absolute." In Ransome v. Eastern Counties Railway (?/), which was a renewal of the application in the earlier case of that name {z), the defendants had effected a distribution of districts, by which they had established practically a tariff, which enabled the Peterborough coal-dealers to have their coals carried at a reduced rate. But it was held, that, as this arrangement was open to the public generally, it was not void merely because it operated to the disadvantage of the complainants ; and that it was their misfortune if the state of their trade did not happen to accommodate itself to a scale and system of districts, which did not appear to be disadvantageous to the public, nor objectionable in other respects. But in the same case it appeared that the defendants had also established a tariff for the Peterborough dealers, which, by fixing a lower scale for carriage from Peter- borough to the neighbourhood of Ipswich, had the effect of annihilating a portion of the distance between the two places in favour of the Peterborough traffic, and so of lessening the advantages which the Ipswich traders had by reason of their vicinity to the above places : and these facts were held to be ground for an injunction. Subsequently a motion for an attachment against the company was made on the ground that the above ano- malous charges had not been properly rectified ; but on investigation it appeared, that, altliough an inequality remained, it was perhaps in favour of the applicants ; and, as it also appeared, that the company had endeavoured honestly to obey the order of the court in the previous case, the motion vi'as refused (a). In Cooper v. London and South- V/eslern Railway (b), the complaint as proved, was, that the defendants, after {tj) 4 C. B., N. S. 135 ; 27 L. J. Railway, 4 C. B,, N. S. 159. 166, C. P. {b) 4 C. B., N. S. 738 ; 27 L. J. («) Supra, p. 279. 324, C. P. (a) Ransome v. Eastern Counties 284 ON INJUNCTIONS UNDER TtlE having acted on the custom of unloading goods, and placing them in, or adjacent to, the waggons of the consignees, had discontinued this practice as to the complainant, while they retained it in other cases; and particularly in the case of Messrs. Pickford. The answer was, that the practice had been merely one of gratuitous indulgence ; that as Messrs. Pick ford's consignments were much smaller than those of the complainant, there was no real parallel in the cases ; and that that, which was a trifling favour in the one instance, would be a serious burden in the other instance. The court took this viev*', and discharged the rule without costs ; but they intimated, at the same time, that the company were not justified in their proceeding; and that if the case had shown that the complainant had requested the com- pany to modify their objectionable custom, the court would have moulded the rule to restrict the undue prejudice to whicli the complainant had been subjected. In Baxendale r. Great Western Ixailway (c), the de- fendants had entered into an agreement with W. S., by which they agreed to carry his goods at a rate below the ])ublished and ordinary tariff, in consideration of his agree- ing to send all his goods by<,the main line of the defendants ; and also to employ other branch lines of the defendants, which were distinct from, and unconnected with, the main line. It was held, that the latter part of the consideration was invalid, as being founded on a traffic which was totally distinct from that of the main line ; and that as there was no substantial difference between the quantity of traflic of W. S. and that of the complainants by the main line, an injunction ought to be granted. Cockburn, C. J., said : " The question is reduced to this; — whether it is a legi- timate ground for giving a preference to one of the cus- tomers of the railway, that he engages to employ other lines of the company for traffic distinct fro)n and uncon- nected with the goods in question, or their carriage, and we are of opinion that it is not. The goods are the same (c) 6 C. B., N. S. S09 ; 28 L. J. 69, C. P. RAILWAY AND CANAL TRAFFIC ACT, 1854. 285 in quantity and quality, in the cost of receiving and car- riage, and in the profit which is thereby made, whether they be received from S. or from the complainants ; and it is undue and unreasonable to charge more or less for the same service according as the customer of the railway thinks ])roper or not to bind himself to employ them in totally distinct transactions. In this respect the present case is altogether distinguishable from that of Nicholson against the same respondents, in which a difference of charge was sustained upon goods, from and to the same places, between persons who sent large quantities of goods at a time, and stipulated to send given large quantities every year, and others who declined to do so. The advantages there stipulated for by the company related to the carriage of the goods upon the same line, and directly affected the rate at which they could profitably be carried. In fact, these advantages made a difference similar to that between that of selling wholesale and retail; — the profit of carrying the goods sent in large quantities, at the less rate at which they were carried, equalling or exceeding the profit upon the goods sent in smaller quantities, at the greater rate at which they were carried. In the pi'esent case, as already explained, the advantages stipulated for are wholly distinct from, and do not affect the price or profit of this caniage from Bristol to London ; and they ought not to be taken into account in determining the charge of such carriage." In Baxendale v. Great Western Railway (fZ)? the re- spondents had carried goods on their railway at 35. Qd. per ton from Reading to London ; and had charged 4^. 1 0^/. per ton for collecting and delivering them. The com- plainants carried on the same terms, using the railway of the respondents between Reading and London, and their own conveyance, for carrying to the station at Reading, and from the terminus in London. The company had subsequently made these two charges into an aggregate one of 8i\ Ad. for carrying from Reading to London, and {(1) -J C. 15., N. S. 33() i 2S L. J. 81, C. P. 286 ON INJUNCTIONS UNDER THE clmro'ed nothino; for collectino- and deliverino-. This was held to be an undue preference against the complainants, by depriving them of their profits, which they alleged that they had made entirely by collecting and delivering, since it compelled customers virtually to employ the com- pany for collecting and delivering, as well as for carrying from Reading to London, to the exclusion of the com- plainants. The court distinguished elaborately between separate interests being vested in the same company. Cockburn, C. J., said : — " It may be convenient, in the first place, to advert to a distinction, not always kept sight of in argument, between cases in which the interest of the company sought to be promoted by the regulation or act complained of, is one w^hich arises with reference to the railway itself, as to which the question occurs ; and those in \vhich the benefit sought to be obtained by the company is one which has reference to interests distinct from those of the particular railway; as where, for example, the company are proprietors of another railway, or carry on some other business. In the latter class of cases it appears to us clear that the company must be taken to be, quoad the particular railway, in the position of third parties; and that they cannot, with a view to such separate in- terests, give an undue preference, or impose an unreason- able disadvantage, any more than they could do so to promote the interests of any other party. Thus, if a rail- way company, being proprietors of one hne from A. to B., and of another line from C. to D., were, in order to obtain the custom of a particular individual on the first of those lines, on which they might be subject to competition from a rival line, to agree to convey his goods on the line from C. to D. at a cheaper rate than those of another person using only the latter line ; — or if a railw^ay company car- rying on, in addition to its business as carriers on the line, that of carriers to and from the termini of the railway, were, with a view to obtain additional custom in the latter, to carry on the railway for those who em})loyed them as RAILWAY AND CANAL TRAFFIC ACT, 1854. 287 carriers to and from the railway at a lower rate than for those who did not ; — in both these cases we should have no difficulty in holding that the company must be con- sidered, as regards those separate interests, in the light of third parties ; and that they cannot promote these at the expense of the right of the public to that' equality on the particular railway which it was the intention of the act of parliament to secure. Greater difficulty and nicety arise in dealing with cases in which the purpose and effect of the th'mg complained of is the benefit of the company in their character of proprietors of a particular railway. In these cases the court might feel a greater reluctance to interpose, partly from an unwillingness to interfere v/ith the parties in the management of their own affairs for their own ad- vantage; partly from a disposition to give companies credit for acting on an enlightened view of their own interests as identified with those of the public ; yet, if the court became clearly satisfied that the company were seeking to promote its own advantage, by establishing an inequality which was unreasonable under the circumstances, and operated unfairly and injuriously on particular individuals; or that it was affording to one ]ierson, or set of persons, an advantage which it would not afford to another under similar circumstances; this court would not hesitate to interfere to prevent such a result, although by so doing they might prevent the company from securing all the profit that it might otherwise derive from the use of its property. Thus, were a complaint made that a railway company, as between two intermediate stations, charged a higher rate than was due to the intermediate space in pro- portion to the charge made on the entire line of railway ; this court, if it were made to appear that the disproportion was not justified by the circumstances of the traffic — in other words, was an undue prejudice or unreasonable dis- advantage to those using the part of the railway in ques- tion — would interfere to set aside such an arrangement. So, again, if an arrangement were made by a railway com- 288 ON INJUNCTIONS UNDER THE pany, whereby persons, bringino; a larger amount of traffic to the railway, should have their goods carried on more favourable terms than those bringing a less quantity ; although the court might uphold such an arrangement as an ordinary incident of commercial economy, provided the same advantage were extended to all persons under tlie like circumstances, yet it would assuredly insist on the latter condition, and would interfere in the case of any special agreement, by which the company had secured to a particular individual the benefit of such an agreemeut to the exclusion of others ; or even where an attempt had been made, by keeping the agreement secret, to make it operate unduly to the prejudice of third parties. This reasoning appears to us effectually to dispose of the argur ment, that the court cannot interfere to prevent a railway company from fixing the rate of tolls to be taken on its railways, in such a manner as shall best promote its own interests, in cases where, by so doing, the company subject others to unreasonable disadvantage, or operates to their prejudice by giving undue preference to third parties. We proceed to consider the second ground taken by the defend- ants, which is, in substauce, that, having the power to raise their rates of charge for carrying on their line, and having done so equally as regards all, they do not come w ithin the statutory prohibition against undue preference or undue prejudice, by affording other accommodation in addition to that of carrying on their line. We think this argument rests upon two obvious fallacies : that of supposing that the charge in question is one made by the company, in reference to their character and interest with respect to the railway; whereas, in reality, the charge is made by them in a character and interest independent of the railway, namely, as carriers to and from the termini of the railway ; and, secondly, that the company can convert that which is in reality a charge for collecting and delivering as well as for carrying, into one for carrying only, by affixing to it the latter denomination in their table of fares. It is true. I RAILWAY AND CANAL TRAFFIC ACT, 1854. 289 no doubt, that the company's acts give them power to impose tlieir own rates of charge for the carriage of this description of traftic ; but these acts give them no power to impose tolls or charges for collecting and delivering ; and it is palpably an abuse of their powers if, under the name of a charge for carrying on their line, they impose, other- wise than with the assent of the parties concerned, a charge for a totally ditlerent thing; and again, although the legislature has conferred the power of imposing rates and charges, it has annexed to this power the obligation of imposing such rates equally ; and the coinj)any cannot be permitted to evade this obligation, by colourably ])retend- ing tiiat that is a charge for carriage only which is, in fact, a charge for other things as well as for carriage. The court is bound to look at the transaction in its true light, and cannot suffer itself to be diverted from its duty of interfering to prevent what in eti'ect is such an injustice as it was the purpose of the legislature to prevent, because the transaction is attempted to be covered over by a trans- parent disguise. Looking, then, at the alteration in the tolls in its true light, we are of opinion that the arrange- ment is objectionable, both as an undue preference given on the one hand, and as an unreasonable disadvantage imposed on the other. It is an undue preference to the company in their separate capacity of carriers, other than on the line of railway ; inasmuch as they thereby prac- tically secure to themselves the entire monopoly of the last- mentioned traffic, to the entire exclusion of the com- plainants and all others. It is an vmdue prejudice and an unreasonable disadvantage imposed upon the complainants; inasmuch as it is plain that their goods, and those of all persons employing them, as indeed the goods of all persons other than those who employ the company to collect and deliver, must be subjected, as compared with the goods of the latter, twice over to the expense attendant on collecting and delivering if they 'employ others to collect and deliver u 290 ON INJUNCTIONS UNDER THE for them ; or to an unnecessary charge if they require no such accommodation. " On these grounds, we are of opinion that the case is one within the mischief and provision of the act ; that it is our duty to interfere ; and consequently this rule must be made absolute with costs." Thus, in Garton v. Great Western Railway (e), the facts were substantially the same as those in Baxendale v. Great Western Railway. And the complaint was, that the respondents made the same charge for collecting, carrying, and delivering as they made for carrying alone ; and, although the new fact appeared, which the court said had been kept carefully from them in Baxendale v. Great Western Railway, that the profit was made by the applicants in both cases in the carrying by means of the system of packed parcels, and not by the collecting and delivering ; the court held, that the case of Baxendale v. Great Western Railway governed the subsequent one, on the principle that the public, as well as other carriers, were prejudiced by being obliged to employ the company for collecting and delivering, whether such services were required or not by the customer. These cases have established some important principles, which have been the guiding rule of subsequent cases, and which may therefore be now stated shortly. It has been said that they establish the principle that "a man shall not have that enforced upon him, and be made to pay for it, for which he has no occasion, and which operates injuriously to him, and preferentially to other parties" (jf ). This doctrine is, perhaps, slightly an extension of that which was laid down in the earlier cases under the statute, whence it appears that personal, without public, inconvenience, alone will not support an injunction, and that — 1st. A preference will not be ground for an injunction, (e) 5 C. B., N. S. 669 ; 28 L. J. and Exeter Railway, 6 C. B., N. S. 158, C. P. 656 ; 28 L. J. 310, C. P. (/) Byles, J., Garton v. Bristol BAILWAY AND CANAL TRAFFIC ACT, 1854. 291 unless it have a tendency to produce public inconvenience as well as personal loss. 2nd. The fair interests of the company are to be con- sidered ; and where they offer similar advantages to all persons similarly circumstanced, there will be no undue preference, merely because, from the natural position of localities, the advantages of traffic are confined to the inhabitants of particular districts, unless other circum- stances indicate a preference for classes or individuals. 8rd. A tariff, which is reduced in proportion to the quantity of traffic and length of transit, is good. 4th. Such a reduction is bad, if founded on a considera- tion which is distinct from the traffic in respect of which the preference is given. 5th. Private, and especially secret, agreements, which, from their nature, can be made only with particular classes or individuals, are bad. In Baxendale v. North Devon Railway {g), the re- spondents, in conjunction with the Bristol and Exeter Railway, had entered into an arrangement with the Mid- land and London and North -Western Railways, by which " Manchester packs" were to be carried at a lower rate, from Crediton to Barnstaple, than similar goods under, similar circumstances, provided they were consigned to the agents of the several companies at Manchester and Bristol. An injunction was granted to enjoin the respondents to charge the same rate for Manchester packs from Crediton to Barnsta|)le as they charged for the like goods under any (?) circumstances. In Nicholson v. Great Western Railway (A), the re- spondents had entered into an agreement with the Ruabon Coal Company, by which the traffic of the latter was to be carried at a reduced tariff in consideration of their engaging to send " for ten years along the Great Western Railway, beyond the distance of one hundred miles, such a sufficient {S) 30 L. T. Rep. IS*. (A) 5 C. B., N. S, 3(j6 j 28 L. J. 89, C. P. u2 292 ON INJUNCTIONS UNDER THE . quantity of coal during- eacli year as would ])roduce to the company for freight, terminals, waggon hire and break of gauge, a yearly gross revenue of 40,000/., in fully loaded trains, at the rate of seven per week." It was alleged, that this agreement operated prejudicially to the applicants, who were coal owners in the Forest of Dean, and who were charged a higher tariff; that the respondents had an in- terest in the Ruabon Coal Company, and that the agree- ment had been kept secret from the applicant; but both these latter statements were denied by the affidavits of the respondents; who averred, also, that they had offered a simi- lar agreement under like circumstances, and subject to like conditions, to all other coal proprietors. It had been stated, generally, in the affidavits of the complainants, that it was impossible for them to enter into a similar agreement ; but it had not been stated why it was impossible. The court refused the injunction, v/ith costs, saying, that if they could have seen clearly that a scale of rates had been framed, with a view of favouring the Ruabon traffic, and prejudicing the Forest of Dean traffic, it would have been an undue preference : but that, under the circumstances, the appli- cants were suffering only from the inconvenience of their local position, and that the respondents had only consulted the fair interests of the company by reducing the tariff in consideration of a guarantee of a larger traffic, which the complainant could not give. But in a later and unreported case, which was compromised before judgment, the court intimated that, in such a case, the tariff must be regulated by the amount of the traffic ; and that when one carrier guaranteed four thousand tons, and another could guarantee only two or three thousand tons, the latter was still entitled to a reduction proportioned to the smaller amount of his guaranteed traffic {I). A subsequent application was made to the court in Nicholson v. Great Western Railway, to order a reference to an engineer or other referee, to ascertain whether the barges made to the complainant were fair and reasonable (i) Lee V. South-Eastern Railway, 1S59, C. P., MS. RAILWAY AND CANAL TRAFFIC ACT, 1854. 293 in com|mrison with the lower charges v/hich were made to the Ruabon Company. But it was held by Erie, C. J., and Keating, J., that, regard being had to the special cir- cumstances of the case, there was no sufficient presumption that there was any inequality of charge : that the case of the complainant was answered by the affidavits of the respondents; and that the court ought not to appoint a referee under sect. 3, unless they were satisfied, which they were not, that he would perform the duty of referee better than the court. Williams, J., and Willes, J., thought that a referee ought to be appointed ; and that it could not have been the meaning of the legislature that the company, who would necessarily have the last word always by their affidavits, should be able to frustrate an application by a simple denial and issue on oath. In consequence of this division in the court the rule dropped, and the a])plication was refused (j). In Ransome v. Eastern Counties Railway (k), the com- plaint was, that the defendants carried coals from Peter- borough to one of certain adjacent districts at a rate below their published tariff. According to the tariff, when coals of not less than 200 tons were consigned to the particular district, they were taken at a reduced charge; and this tariif had been recognized by the court in a former case(0- It was now contended, that this tariff was infringed, and that the applicant, as a carrier from Ipswich to the same district, was unduly prejudiced, because the defendants, after receiving a full consignment of 200 tons at Peterborough, and conveying that amount to Cambridge ; there for the convenience of the company's traffic, and with a fair regard to the difficulties of gradients and the cost of locomotive power, distributed the consignment into smaller quantities, and conveyed them at different times, and by different trains, into the district of ultimate consignment. The court (j) Nicholson v. Great Western (/) Re Ransome, 4 C. B., N. S. Railway, 3 L. T. Rep., N. S. 231. 135; 27 L. J., 166 C. P., supra, (/f) 8 C. B., N. S. 709 i 29 L. J. p. 283. 329, C. P. 294 ON INJUNCTIONS UNDER THE held, that these facts disclosed no case of undue pre- ference. Erie, C. J., said, that the tariff had been formed on the approved principle, that " a railway company have a right to lower their rates in proportion to large quantities of goods conveyed for long distances, this being for the accommodation of the public, and for their own profit and advantage. As to the question of competition, it is not the duty of the court to interfere. All that we can require is, that the company should hold out equal opportunities to all parties who may desire to use them." The court aoreed in thinkino- that, as the original consignment was of a quantity not less than 200 tons, it was immaterial how they were forwarded on. The rule was discharged, but without costs. If any of the coals had been left at the intermediate place, which was not the case, it seems that the injunction would have been granted. In Garton iK Bristol and Exeter Railway (m), there were three grounds of complaint : — 1st. That the defendants charged the complainants for forwarding packages by the van and passenger trains, from station to station, the same sum as the defendants charged the public for forwarding their goods, and also for col- lection and delivery. 2nd. That the Bristol station of the defendants was closed in the evening against the complainants at an early hour, subsequently to which the defendants re- ceived goods which had been collected by their agent. 3rd. That the complainants were charged at a higher rate for the carriage of goods from Bristol to Bridgewater, and vice versa, than certain persons at Bridgewater were charged for similar goods under similar circumstances. The first ground of complaint was proved and held to fall within the principles of Baxendale v. Great Western Railway (n), and Garton v. Great Western Railway (o), that a railway company has no right to charge for con- Cm) 6 C. B., N. S. 639 ; 28 L. J. 306, C. P. (n) 5 C. B., N. S. 336 ; 28 L. J. 81, C. P. (o) 5 C. B., N. S. 669 ; 28 L. J. 158, C. P. RAILWAY AISD CANAL TRAFFIC ACT, 1854. 295 veying to the railway a person who does not require such accommodation from the company. The second ground was also proved, and held to be a case of undue preference. The third ground rested on the fact, that the railway company had undertaken to carry the heavy merchandize of the grocers and ironmongers of Bridgewater, generally, at lower charges than they took from the public generally for such traffic. It was suggested, although it did not appear on the affidavits, that this arrangement was made to enable the railway company to compete successfully with the water carriage of the district. But the court thought that there did not appear to be sufficient ground for this arrangement; that the affidavits of the defendants were unsatisfactory ; and that on this ground also, as on the other two, the injunction ought to be granted. But the court intimated that a hona fide arrangement of this sort, with a view of meeting competition, if held out to the public generally, and not made a matter of private arrangement with particular persons, might be good. Where a railway company were bound by their private act to keep two distinct navigations in order, and allowed one to fall out of repair, in consequence of which neglect the traffic was diverted from it to the other; an injunc- tion against undue preference of themselves was refused. The 17 & 18 Vict. c. 31, applies to a preference in respect of a single navigation, and not to the case of distinct and separate navigations (p). Nor will an injunction be granted where a charge is not higher than a private act permits {q). The cases which have arisen under the 17 & 18 Vict. c. 31, s. 2, and, so far as practicable, the results which are deducible from them, have now been stated. It remains to state some miscellaneous points, chiefly of procedure, which have been also incidentally involved in them. (p) Bennett v. Manchester, &c. {q) Attorney-General t). Birniing- Railway, 33 L. T. Rep. 233. ham, &c. Railway, 2 Railw. Cas. 124. 296 ON INJUNCTIONS UNDER THE The Affidavit. This must not be vague, but must set out distinctly a public as well as a personal inconvenience, as the actual or probable result of the grievance. Such at least was the doctrine of the court in the earlier cases under the act (?) : and, although this doctrine has not been stated so expressly in later cases, in some of which it seems to have been thought, that a personal prejudice, without a public incon- venience, may be ground for an injunction (s) : the earlier doctrine appears to be the safer law. Where a rule to show cause has been obtained on aflidavits, the court will not allow the complainant to file additional affidavits to strengthen the rule, even though the other side have not filed affidavits in reply, nor taken any other steps than giving notice that the rule will be opposed. But the court, in its discretion, may allow the applicant to abandon the rule and move a new one : and will also suspend the costs of the abandoned rule until the new one has been disposed of(6)- It seems, also, that the court will Judge of the facts of the case from the affidavits of complaint and answer alone : that, where the allegations of complaint are denied in fact by the respondents, the rule v.'ill drop, and the complainants will not be allowed to file affidavits in reply : and that in such a case the Court of Common Pleas is equally divided in o})inion whether the facts ought to be referred to the Master, an engineer, or other referee iu). But when the affidavits disclose circum- stances of a special nature, which are essentially matters of arithmetic and calculation, the court will refer the case to the Master, who will take the evidence and report thereon (;•) Re Marriott v. London ;ind (v) Nicholson v. Great Western South. Western Railway, 2(j L. J. Railway, 28 L.J. 89, C. P.; Bylcs, L55, C. P.; Caterham Railway v. J., in Garton i'. Bristol and Exeter London and Brighton Railway, 26 Railway, 28 L. J. 310, C. P. L. J. IGl, C. P.; Ex parte Painter, {t) Ransome v. Eastern Counties 2 C. B., N. S. 705 ; Ransonic v. Railway, 2 L. T. Rep., N. S. 2-37. Eastern Counties Railway, 27 L. J. (w) Nicholson v. Great Western J66, C. P. Railway, 2 L. T. Rep., N. S. 234. RAILWAY AND CANAL TRAFFIC ACT, 1854. 297 to the court. On the report the court will act with due regard to the conflicting rights and interests of the public and the company (x). The affidavit of complaint ought to disclose a grievance which is strictly in accordance with the facts : and a mistake or misdescription of a grievance will be fatal, even where a substantial grievance of an analogous nature is disclosed on the argument. Where a real ground of grievance is stated, the court will probably mould the rule to give proper redress, even while they refuse the whole amount of the relief which is prayed for (y). When a rule has been disposed of, the court generally will not allow it to be re-opened, on affidavits of new facts, although it is in their discretion to do so (r). Costs. In the first application under 17 &: 18 Vict. c. 31, s. 2, the rule appears to have been made absolute with costs, although it was not moved with costs (a) ; but it has been since laid down, that costs will not be given when they are not asked for by this rule (/*). When the rule is moved with costs it will either be made absolute with costs (c), or discharged with costs (d). When a complainant demands much more relief than he is entitled to, the court will refuse him his costs. On the other hand, when the com- pany is partially in the wrong, they must bear their own costs ( n 1 1 1 . r. such regulations \\ estminster, or any three ot the judges thereof, of whom the chief as may be neces- justice shall be one, and it shall be lawful for the said courts in -,1;.^ uXThfs'^' Dublin, or any nine of the judges thereof, of whom the lord chan- ^'"t- ct'llor, the master of the rolls, the lords chief justice of the Queen's Bench and Common Pleas, and the lord chief baron of the Ex- chequer, shall be five, from time to time to make all such general rules and ordei'S as to the forms of proceedings and process, and all other matters and tilings touching the practice and otherwise in carrying this act into execution before such courts and judges, as they may think fit, in England or Ireland, and in Scotland it shall be lawful for the Court of Session to make such acts of sederunt for the like purpose as they shall think fit. V. Upon the application of any party aggrieved by the order Court or judge , , . ,■ • , . 1 ,, , mav order a re- made upon any such motion or suiumons as atorcsaid, it shall be hearing. 336 Appendix. Mode of proceed- ing under this act. Company to be liable for neglect or default in tbe carriage of goods, notwithstanding notice to the con- trary. Company not to be liable beyond a limited amount in certain cases, unless the value declared andextra payment made. Proof of value to he on the person claiming compen- sation. No special con- tract to be bi::d- ing unless signed. lawful for the court or judge by whom such order was made to direct, if they think fit so to do, such motion or application on summons to be reheard before such court or judge, and upon such rehearing to rescind or vary such order. VI. No proceeding shall be taken for any violation or contra- vention of the above enactments, except in the manner herein pro- vided ; but nothing herein contained shall take away or diminish any rights, remedies or privileges of any person or company against any railway or canal or railway and canal company under the existing law. VII. Every such company as aforesaid shall be liable for the loss of or for any injury done to any horses, cattle or other animals, or to any articles, goods or things, in the receiving, forwarding or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition or declaration made and given by such company contrarj' thereto, or in anywise limiting such liability ; every such notice, condition or declaration, being hereby declared to be null and void : Provided always, that nothing herein contained shall be construed to prevent the said companies from making such conditions with respect to the receiving, forwarding and delivering of any of the said animals, articles, goods or things, as shall be adjudged by the court or judge before whom any question relating thereto shall be tried, to be just and reasonable : Provided always, that no greater damages shall be recovered for the loss of or for any injury done to any of such animals, beyond the sums hereinafter mentioned : (that is to say, ) for any horse fifty pounds ; for any neat cattle, per head, fifteen pounds ; for any sheep or pigs, per head, two pounds ; unless the person sending or delivering the same to such company shall, at the time of such delivery, have declared them to be respectively of higher value than as above mentioned ; in which case it shall be lawful for such company to demand and receive by way of com- pensation for the increased risk and care thereby occasioned, a reasonable per centage upon the excess of the value so declared above the respective sums so limited as aforesaid, and which shall be paid in addition to the ordinary rate of charge ; and such per centage or increased rate of charge shall be notified in the manner prescribed in the statute II Geo. 4 & I Will. 4, cap. 68, and shall be binding upon such company in the manner therein mentioned: Provided also, that the proof of the value of such animals, articles, goods and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensation for such loss or injury : Provided also, that no special contract, between such company and any other parties respecting the receiving, forwarding 17 & 18 Vict. Cap. 31. 337 or delivering' of any animals, articles, goods or tilings as aforesaid, sliall be binding upon or aft'ect any such party unless the same be signed by him or by the person delivering such animals, articles, goods or things respectively for carriage : provided also, that nothing Saving rf Carriers herein contained shall alter or affect the rights, privileges, or f \v'i/|V['c°cs.*' liabilities of any such company under the said act of 11 Geo. 4 & 1 Wiil. 4, c. 68, with respect to articles of the descriptions men- tioned in the said act. VI H. This act may be cited for all purpo-:es as " The Railway suo.t litie. and Canal Traffic Act, 1854." REGUL^ GENERALES, 1855. In the Common Pleas at Westminster. As to the Forms of Proceedings and Process, made p^n'- suant to the Statute 17 ^ 18 Victoria, chapter 31, section 4, intituled "An Act for the better Regulation of the Traffic on Eailways and Canals^ 1. Every application made under this act to tlic court shall be for a rule calling upon the company or companies complained of, to show cause why a writ of injunction should not issue against such company or companies, enjoining them to do, or to desist from doing', the thing required to be done, or the thing the doing of which is comphiined of by the company or person making such application, and every application made under this act to a judge at chambers shall be by summons, calling upon the company or companies complained of to show cause in like manner, which sum- mons shall be granted only upon affidavit, and upon a stutoment made to the judge in like manner as upon an application to the court for a rule to show cause. 2. If, on the hearing of any such rule or summons, the court or jndgeshall think fit to direct and prosecute inquiries into the nmtter thereof, under the third section of this act, the order for that pnr- pose shall be in the following terms, or to the like effect; the rule or summons being enlarged until such further day as the court or judge shall think fit, in order that in the mean time such inquiries may be made and reported on : "In the Common Ple-as. " In the matter of the complaint of ^. B. [or of the com- pany] against the company. — It is ordered, that C D., esquire, z 338 Appendix. engineer [or as the case may he], do forthwith make such inquiries into the matter of this comi)laint as may be necessary to enable the court \or the Honourable Mr. Justice ] to determine the same, and do report thereon to the court [or to the said IMr. Justice ] on or before the day of next. "Dated this day of 185 ." 3. Office copies of all the affidavits filed by either party on the hearing of such rule or summons shall, at the expense of such party, be furnished to the person appointed to make such inquiries, within three days after the making of such order as aforesaid. 4. The parties shall be entitled to be again heard by the court or judge upon the said report ; but no fresh affidavits shall be allowed on such hearing, unless by leave of the court or a judge. 5. Every writ of injunction issued under this act shall be in the following form, or to the like effect : "Victoria, &c. To the company, their agents and ser- vants, and every of them, greeting. Whereas, A. B. [or ' the company'] hath lately complained before us in our Court of Com- mon Pleas at Westminster, of a violation and contravention by you the said Company of 'The Railway and Canal Traffic Act, 1854 ;' that is to say, in [state the act or omission complained of] ; and whereas upon the hearing of such complaint the same hath been found to be true : We do, therefore, strictly enjoin and command you the said company and your agents and servants, and every one of you, that you, and every one of you, do from hence- forth altogether absolutely desist from [state the matter for the injunction lohere an act done is complained of] [or ' that you and every one of you forthwith do' {state the matter for the injunction zvhere an omission is coniplainedof)] until our said court shall make order to the contrary. Witness, Sir John Jervis, Knight, at Westminster, the day of in the year of our Lord ." 6. If the court or judge shall think fit also to make an ordei", directing the payment of a sum of money by the company or com- panies complained of, such order shall be in the following form, or to the like effect : " In the Common Pleas. " In the matter of the complaint of against the com- pany. — It is ordered, that the said company do pay to the said , [or ' into court, to abide the ultimate decision of the court in the matter of the said complaint,' or ' to the use of Her Majesty,'] the sum of £ for every day after the daj' of instant, that the said company shall fail to obtain a certain REGULiE Generales, 1855. 339 writ of injunction dated tliis day, and issued against the said com- pany at the instance of tlie said "Dated this day of 185 ." 7. If such money be ordered to be paid into court, to abide the ultimate decision of the court, the same shall, upon the ultimate decision of the court being made, be paid out of court either to the party complaining, or to the use of Her Majesty, or to the company by which the same was paid into court, as the court or judge shall direct. John Jervis, W. H. Maule. C. Cresswell. E. V. Williams. R. B. Crowder. January 31, 1855. CANAL AND RIVER CONSTABLES ACT. 3 & 4 Vict. c. 50. An Act to provide for keeping the Peace on Canals and Kavigahle Rivers. {^th August, 1840.] Whereas robberies and other outrages are frequently committed on canals and navigable rivers throughout England and Wales, and it is expedient that power be given to appoint constables for better keeping the peace, and for the prevention and detection of crime, along the line of such canals and rivers, and in the neiglibour- hood thereof: be it therefore enacted by the Queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that it shall be lawful for any Appointment of . . n 1 1 r> I i 1 -xi. £" • constables for two justices of the peace, and tor the watch committee ot any in- canals and rivers ,- corporated borough, within their several jurisdictions, on the appli- cation of tlie committee or board of directors acting in the manage- ment of the affairs of the company of proprietors of any canal or navigable river, or of any clerk or agent of any such company, duly authorized by such committee or board of directors, to appoint so many persons as they shall think fit from among those who shall be recommended to them for that purpose by such company of pro- prietors, clerk or agent, to act as constables on and along sucli canal or river: and every person so appointed shall take an oath or ^^llo shall take the ' •> '^ '^ '■ follownipr oath. z2 :ib!r?. 340 Appendix. make a solemn declaration in the form or to the efTuct following, (that is to say,) Oath of con- " h ^- ^-i lii^viiig been appointed a constable to act upon and stables. along tbc [nayrtc (he canal or navigable river], under the provisions of \lurc insert the title nf this act], do swear, that I will well and truly serve our sovereign lady the Queen in the said office of con- stable, without favour cr affection, malice or ill-will ; and that I will, to the best of my power, cause the peace to be kept, and prevent all offences against the peace ; and that, while I continue to hold the said office, I will, to the best of my skill and know- ledge, discharge the duties thereof faithfully according to law. " So hclj) me God." Such oath or declaration to be administered by any one such jus- Powers of con- tice ; and every person so appointed, and having taken such oath or made such declaration as aforesaid, shall have full power to act as constable for the preservation of the peace, and for the security of persons and property against felonies and otiier unlawful acts, on such canal or river, and the towing paths and works belonging thereto, and on and within any railways, tramroads, wharfs, quays, locks, docks, landing places, warehouses, lands and premises be- longing to any such company, and in all places not more than one quarter of a mile distant from either bank of such canal or river, or from such railways, and shall have all such powers, protections and privileges for the apprehendino- of offende.-s, as well by night as by day, and for doing all things for the prevention, discovery and prosecution of felonies and other offences, and for keeping the peace, which any constable duly appointed has within his con- stablewick : provided alwaj's, that such power shall not extend to authorize any such person to act as such constable within the metropolitan police district, or the city of London and the liberties thereof, or in any places beyond the banks, towing paths and other the premises belonging to such company, as may be situate within any other citj- or any incorporated borough, anything in this act con- tained to the contrary notwithstanding. Dismissal of II. And be it enacted, that it shall be lawful tor any two justices, or the watch committee of any incorporated borough, to dismiss anj'^ such constable who shall act within their several jurisdictions, or for the company of proprietors of any such canal or river for which any such constables shall be appointed, or for any clerk or agent of snch company duly authorized by the couiuiittee or board of directors of such companies, to dismiss any such conshible from his office of constable ; and upon every such dismissal all powers, protections and privileges belonging to any such person by reason constables 3 & 4 Vict. Cap. 50. 341 of sucli nppointment shall uliolly cease ; and no person so dis- missed shall be capable of being again appointed or acting as a constable for the same canal or river, without the consent of the authority by which he was dismissed. in. And be it enacted, that it shall be lawful for every such Constables how company of jjroprletors to pay to every such constable, out of the monies and effects of the company, such salary or allowances, and at such times and in such manner, as the comjjany shall think fit. IV. And bo it enacted, that every constable who shall be guilty Penally on con- of any neglect or breach of duty in his office of constable shall be oiciutj-. liable to a penalty not more than ten pounds, the amount of wliicli penalty may be deducted from any salary due to such offender, or, in the discretion of the magistrate before whom such oflender shall have been convicted, such offender may be imprisoned in the gaol or house of correction for the county or place in which such offence shall have been committed, with or without hard labour, for any time not more than one calendar month. V. And be it enacted, that every constable who shall be dis- Constables dis- missed from or shall cease to hold his office, and who shall not up accoutie- forthwilh deliver over all the clothing, accoutrements, appointments, '^"^"'*- and all other necessaries which have been supplied to him for tlie execution of his duty, to sucli person and at such tinie and place as shall be directed by the company on whose recommendation he shall hiive been appointed, or by any clerk or agent of such com- pany duly authorized by the company to receive the same, shall be liable to be imprisoned in any gaol or house of correction as afore- said, with or without hard labour, for any time not exceeding one calendar month ; and it shall be lawful for any justice of the peace to issue his warrant to search for and seize, to the use of such com- pany, all the clothing, accoutrements, appointments, and other ne- cessaries which shall not be so delivered over, wherever the same m.iy be found. VI. And be it enacted, that every person who shall assault or Penalty for as- rcsist any constable appointed as aforesaid in the execution of his sfai'ief?" "^^ duty, or who shall aid or incite any person so to assault or resist, shall for eveiy such offence be liable to a penalty not more than ten pounds, or, in the discretion of the magistrate before v.hom he shall be convicted, may be imprisoned in any gaol or house of correction as aforesiiid, with or without hard labour, ior any time not more than two calendar months. VII. And be it enacted, that every person who shall be found Possessinsin- , 1 . • 1111 stnimenis for un- npoii any such canal or river, or in or upon any lock, dock, ware- i;,wjuiiy procm- houso, wharf, quav, or bank thereof, or on board of any boat or ing anci carrying ' ' ' • ' ' , • away liquors, vessel lying or being in any such canal or river, or in any lock or 342 Appendix. dock tlicreinitn belonging, Laving in liis possession or under his control any tube or other instrument for the purpose of unlawfully obtaining any wine, spirits or other liquors or goods, or having in his possession any skin, bladder, or other utensil for the purpose of unlawfully secreting or carrying away any such wine, spirits, or other liquors or goods, and any person who shall attempt unlaw- fully to obtain any such wine, spirit or other liquors or goods, shall for every such ofi'ence be liable to a pennlty not more than five pounds, or, in the discretion of the magistrate before whom he shall be convicted, may be imprisoned as aforesaid, with or without hard labour, for any time not more than one calendar month. Unlawfully injur- YHI. And be it enacted, that every person who shall bore, pierce, ing the contents ... , of packages. break, cut open, or otherwise injure any cask, box, or package, con- taining wine, spirits, or other liquors, or any case, box, sack, wrap- per, package, or roll of goods, on board of any boat, vessel, or waggon, or in or upon any warehouse, wharf, quay, or bank of or belonging to any such canal or river, with intent feloniously to steal ■ or otherwise unlawfully obtain or to injure the contents or any part tliereof, or who shall unlawfully drink or wilfully spill or allow to run to waste any such liquors or any part thereof, shall for every such offence be liable to a penalty not more than five pounds, over and above the value of the goods or liquors so taken or destroyed, or, in the discretion of the magistrate before whom he shall be con- victed, may be imprisoned as aforesaid, with or without hard labour, for any time not more than one calendar month. ConstaMe, &c. IX. And be it enacted, that it shall be lawful for every constable having just cause . „.,,.. ipi to suspect felony, appointed as aroresaid, havmgjust cause to suspect that any ieionj', boa'rd vess-eis, or any Other ofience contrary to the provisions of this act, has been and take up sus- yj. jg about to be Committed in or on board of any boat or other pected persons. _ •' vessel lying in any such canal or river, or any lock or dock there- unto belonging, to enter at all times, as well by night as by day, into and upon every such boat or other vessel, and therein to take all necessary measures for the prevention or detection of all felonies or other offences which he has just cause to suspect to have been or to be about to be committed, and to take into custody all persons suspected of being concerned in such felonies or other ofl^ences, and also to take charge of all propertjr so suspected to be stolen or em* bezzled. Constable may X. And be it enacted, that it shall be lawful for any such con- !)ut war"ant"in Stable to take into custody, without a warrant, any loose, idle, and disorderly person whom he shall find disturbing the public peace, or whom he shall have good cause to suspect of having committed or being about to commit any felony, misdemeanor, or breach of the peace, or other offence contrary to the provisions of this act, and certain cases. 3 & 4 Vict. Cap. 50. 343 every person wliom lie shtill find, between sunset and the hour of eight in the morning, lying or loitering in or upon any towing path, or in or upon any wharf, bridge, railway, quay, lauding place, lock, dock, or upon the bank of any such canal or river, and not giving a satisfactory account of himself. XI. And be it enacted, that any person found committing any Power to consta- nt -1,1 .... p 1 • r '^''^^ ^"'^ persons OTience punishable upon summary conviction by virtue or this act, aggrieved to ap- may be taken into custody, without a warrant, by any constable, offeiuters"' ^"* or may be apprehended by the owner of the property with respect to which the offence shall be committed, or by his servant, or any person authorized by him, and may be detained until he can be de- livered into the custody of a constable to be dealt with according to law; and evTrysuch constable may also stop, search and detain any vessel, boat, cart, or carriage in or upon which there shall be reason to suspect that anything stolen or unlawfully obtained may be found, and also any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained. XII. And be it enacted, that any person to whom any property stolen property shall be offered to be sold, pawned, or delivered, if he shall have °:^"'^be'detarned. reasonable cause to suspect that any such offence has been com- mitted Avith respect to such property, or that the same or any part thereof has been stolen or unlawfully obtained, is hereby authorized, and if in his power is required, to apprehend and detain, and as soon as may be to deliver such offender into the custody of a constable, together with such property, to be dealt with according to law. XIII. Provided always, and be it enacted, that nothing herein Not to repeal contained shall be construed to prevent any person from being i°,g^penau*ies. '^"'" indicted for any indictable offence made punishable on summary conviction by this act, or to prevent any person from being liable under any other act or acts to anj"^ other higher penalty or punish- ment than is provided for such offence by this act, so nevertheless that no person be punished twice for the same offence. XIV. And be it enacted, that any two justices of the peace offences how to within tlieir several jurisdictions shall be empowered summarily to penaitfesTo^w convict any person charged with any offence against this act, on the enforced. oath of one or more witnesses, or by confession of such person, and to award the penalty or punishment herein provided for such offence. XV. And be it enacted, that in every case of the adjudication of if penalty is not a pecuniary penalty under this act, and nonpayment thereof, it jjj'a'* ^^00-?'"''" shall be lawful foi»the justices before whom any offender shall have mitted, or the been convicted to commit such offender to any gaol or house of distress. correction within his jurisdiction for a term not more than one calendar month, where the sum to be paid shall not exceed five 344 Appendix. poiiudy, and in any case not more tlian two calendar months, tlie imprisonment to ceafc on pa\'ment of the penalty and the costs for the recovery thei'eof; or instead of imprisonment it shall be lawful for the justices, by warrant under their hands and seals, to order such penalty, with the reasonable costs and charges of the con- viction, to be levied by distress and sale of the goods and chattels of the offender; and all such convictions and warrants shall be taken o Geo. 1, c. IS. to be within the ])rovisions of an act passed in the fifth year of the reign of King George the fourth, intituled " An Act for the more effectual Recovery of Penalties before Justices and Magistrates on Conviction of Offenders, and for facilitating the Execution of AVarrnnts by Constables." Formorcon- XVI. And be it enacted, that any justice of the peace before whom any person shall be summarily convicted for any offence against this act may cause the conviction to be drawn up, on paper or parchment, in the following form of words, or to the like effect; (that is to say,) " County, city, or borough } Be it remembered, that on the of to wit, '> day of in the year of our Lord in the county of A. E. is convicted before us J. P. and J. J. P., two of her Majesty's justices of the peace for the said county, for that he ilie said A.E. did [here specif'i/ the offence, and Ike time and place iclicn and where the same was committed, as the 1 case may he'\ ; and we do adjudge that the said A. E. shall for the said offence forfeit tlie sum of and shall jmy the same imme- diately [or shall pay the same on or before the day of ] to C D., to be by him apj)]ied according to the directions of the statute in that ca?e made and provided. Given under our hands the day and year firtt above mentioned. '' J. P. and J.J. P." Convictions nn( XYII. And jjc it enacted, that no conviction for any offence v"aTU of'fonii. against this act shall be rpiashed for want of form, or be removed b}' certiorari or otherwise into any of her Majesty's superior courts of record ; and that no warrant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that it is founded on a conviction, and there be a good and valid con- viction to sustain the same; and that where any distress shall be niaile for levying any money by virtue of this act the distress itself shall not be deemed unlawful, nor the i)arty making the same be deemed a trespasser, on account of any defect or want of form in the summons, conviction, warrant of distress, or other proceedings relating thereto, nor shall the party distraining be deemed a trespasser from the beginning on account of any irregularity afterwards committed by him, but the person aggrieved by such 3 & 4 Vict. Cap. 50. 345 irregularity may recover full satisfaction fur the special damage (if any) in an action upon the case. XVIII. And for the protection of persons acting in the execution Venue; of this act, be it enacted, that all actions and prosecutions to be commenced against any person for anything done in pursuance of this act shall be laid and tried in the county where the fact was committed, and sliall be commenced witliin six calendar months after the fact committed, and not otherwise; and notice in writing of limitation of such cause of action shall be given to the defendant one calendar month at the least before the commencement of the action ; and in general issue; any such action the defendant may plead the general issue, and give this act and the special nmtter in evidence, at any trial to be had thereupon ; and no plaintiff shall recover in any such action if icndci of amends. tender of sufficient amends shall have been made before such action brought, or if a sufficient sum of money shall have been paid into court after such action brought by or on behalf of the defendant; and if a verdict shall pass for the defendant, or the plaintiff shall become nonsuit, or discontinue any such action after issue joined, or if upon demurrer or otherwise judgment shall be given against the plaintifl', the defendant shall recover bis fail costs as between attorney and client, and have the like remedy for the sauie as any defendant hath by law in other cases; and though a verdict shall be given for the plaintiff in any such action sucli plaintiff shall not have costs against the defendant, nnlcss the judge before whom the trial is had shall certify liis approbation of the action and of the verdict obtained thereupon. XIX. And be it enacted, that in every case of summary con- Appeal to (luarter viction before any justices of the peace under this act, in which the penalty adjudged to be paid shall be more than three pounds, any person who shall think himself aggrieved by the conviction may appeal to the justices of the peace at the next general or quarter sessions of the peace to be holden for the county, riding or division wherein the cause of complaint shall have arisen ; provided that such person, at the time of the conviction, or within forty-eight hours thereafter, shall enter into a recognizance, with two sufficient sureties, conditioned personally to appear at the said sessions to try such appeal, and to aljide the further judgment of the justices at snch sessions assembled, and to pay such costs as shall be by the last-mentioned justices awarded; and it shall be lawful for the justices by -whom such conviction shall have been made to bind over the witnesses who shall have been examined in sufficient re- cognizances to attend and be examined at thohearing of such appeal ; and that every such Avitness, on produciug a certificate of his being BO bound, under the hand of the justices, shall be allowed com- 346 Appendix. Geo. 4, c. C4. Powers of com- panies to he exer- cised by directors. Act may be amended this session. pensatlon for Lis time, trouble and expenses in attending the appeal, ■\vliicli compensation shall be paid, in the first instance, by the treasurer of the county or riding, in like manner as in cases of misdemeanor under the provisions of an act passed iu the seventh year of the reign of king George the fourth, intituled "An Act for improving the Administration of Criminal Justice in England;" and in case the appeal shall be dismissed and the order or con- viction affirmed, the reasonable expenses of all such witnesses at- tending as aforesaid, to be ascertained by the court, shall be repaid to the treasurer of the county or riding by the appellant. XX. And be it enacted, that all the powers hereby vested in any company of proprietors of any such canal or navigable river may be exercised by the directors or committee of management, or other body or persons, under whatever style or name they may be known, duly authorized according to the constitution of such company to manage the affairs of such company respectively, and if there shall be no such body, or more than one such body, so that it may be doubtful by whom the said powers ought to be exercised, then by such body of persons as shall be appointed for that purpose by the proprietors at any general or special meeting of the proprietors convened for that purpose, with the like forms and notices as are required by law in each case respectively with regard to such meetings. XXI. And be it enacted, that this act may be amended or repealed by any act to be passed in this session of parliament. CANAL AND RIVER TOLLS ACT. 8 & 9 Vict. c. 28. A?t Act to empoicer Canal Companies and the Commis- sioners of Navigable Rivers to vary their Tolls, Rates, and Charges on different Parts of their Navigations. \_mth June, 1845.] Whereas by divers acts of parliament various canal companies and the commissioners or trustees of several navigable rivers have been authorised and empowered to levy and receive certain tolls, rates, and charges for the use of their respective canals and navigations, which tolls, rates, and charges are for the most part required to be levied at one uniform rate per ton or per mile 8 & 9 Vict. Cap. 28. 347 tliroughout the entire leiigtli of the said navigations and rivers resj)ective]y, without regard to any difference of circumstances which may exist iu reference thereto: And whereas by an act of parliament passed in this present session, called " The Railways Clauses Consolidation Act, 1845," powers have been given to railway companies to vary the tolls, rates and charges upon rail- ways, so as to accommodate them to the circumstances of the traffic thereon ; and whereas greater competition for tlie public advantage would be obtained if canal companies and the commissioners or trustees of navigable rivers which have already been or may here- after be from time to time incorporated or established, or which are regulated under the authority of parliament, were to have the like powers granted to them in respect of their several canals and navigations and other works connected therewith ; but such bene- ficial purposes cannot be effected without the authority of parlia- ment: Be it therefore enacted by the Queen's most excellent majest)'^, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that from and after the passing Canal companies p.. !!• 1 •• IT'- I- authorized to vary ot tins act, and subject to the provisions and limitations herein their toils or rates contained, it shall be lawful for the company of proprietors of any ^"ns'ofTheir"'^" canal, or for the undertakers, commissioners or trustees of any canals; navigation or navigable river already or hereafter to be established or incorporated or which is regulated under the authority of par- liament, or for their respective lessees, committees, directors or managers, or their superintendents, or other agents by them severally authorized, in such manner as may be required by their respective acts of incorporation or for regulating such canals or navigations, from time to time to alter or vary the tolls, rates and duties granted to them, or by them respectively authorized to be levied and received for the use of their several canals or navigations, or any branches therefrom, or any railways or tramways connected therewith, and made under the authority of such canal or navi- gation acts respectively, either upon the whole or upon or for any particular portion or portions of such canals, navigations, branches, railways, or tramways, according to local circumstances, or the quantity of traffic or otherwise, as they shall think fit, and also and also, from n ,. . ^. . , , , . . . , time to time, to from time to time to lower or reduce, and again to raise or advance, reduce and again such tolls, rates, and duties, and also any tolls or charges by them tojis "rrat'es! respectively authorized to be levied and received for any haulage, titickage, or other power supplied by them, either upon the whole or upon any particular portion or portions of their said several canals, navigations, branches, railways, and tramways, as to such companies, commissioners, trustees, or lessees, or their committees, under the like circumstances. 348 Appendix. directors, managers, or superintendents respectively, shall seem fit, any thing in the several acts of incorporation, or for regulating any such canals or navigations, contained to the contrary notwith- standing: Provided alwaj's, that in no case shall the tolls, rates, duties and charges to be at any time levied or made by any such companies, commissioners, trustees, or lessees, for the use of any such canals, navigations, branches, railways, or tramways, or for the supply of any such haulage, trackage, or other power, exceed the amount which they are by their said several acts respectively authorized to levy or receive. Tolls to be II. Provided always, and be it enacted, that all tolls, rates and to'a'upersmis ^ duties for the use of any such canals, navigations, branches, rail- ways or tramways shall be at all times charged equally to all persons, and after the same rate, whether per mile, or per ton ])er mile, or otherwise, in respect of all boats, barges and other vessels of a like description passing along or using the same portion of the said canal, navigation, branches, railways, or tramways respectively, and upon all goods, animals, articles and things of a like descrip- tion, and conveyed or propelled in a like boat, barge, or other vessel passing along or using the same portion of the said canal, navigation, branches, railways, or trannvays, under the like circum- stances j and that all tolls and charges for haulage or trackage or other power, to be supplied by any such company, commissioners, trustees, or lessees, shall be at all times charged equally to all persons, and after the same rate, whctlier per mile or per ton per mile, or otherwise, in respect of all goods, animals, articles and things of a like description, and conveyed in a like boat or vessel drawn or propelled by a like power, and passing along or using the same portion of any such canal, na.vigation, branches, railways, or tramways, under the like circumstances; and no reduction or advance in any tolls or charges for the use of any such canal, navigation, branches, railways, or tramways, or for the supply of any haulage, trackage or other power by the said companies, commissioners, trustees or lessees, shall be made, either directly or indirectly, in favour of or against any particular company or person passing along or using the same portion of such canal, navigation, branches, railways, or tramways. Act not to apply HI. Provided always, and be it enacted, that this act shall not to existing com- , . . , ... , . paiiies until a Jipplj to o.\iy canal or navigation, tlie property wherein is vested in l"ow'erlfhavVde-' shareholders, until a meeting of the shareholders thereof shall have terniined there- lyi^Qn duiv convcncd, in such manner as meetings are bv their re- upon, nor in other • ' , ^_ cases until ap- gpectivc acts of incorporation or settlement required to be called, or proprietor^, '^^ or are usually called, and it shall have been determined, by a the''r"o'f diUy majority of two thirds of the votes of the shareholders in such published. 8 & 9 Vict. Cap. 28. 349 meeting assembled, eitlier in person or by proxy (where by such acts of incorporation or settlement voting by proxy is allowed), to adopt the powers hereby granted, and where snch navigations are vested in commissioners or trustees, without any body of share- liolders or proprietors, until a special meeting of such commissioners or trustees shall have been duly convened in such manner as special meetings are by the respective acts for regulating such navigations required to be called, or are usually called, and it shall have been determined by a majority of such conimii^sioners or trustees in such meeting assembled to adopt the powers by this act granted, or to any canal or navigation the property wherein is vested in one or more owner or owners, proprietor or proprietors, unless the owner or owners, proprietor or proprietors thereof shall determine to adopt the powers and provisions hereby granted, nor in either case until public notice of such determination and intention shall have been inserted in the London Gazette in respect of canals or navigations in England or Wales, in the Edinburgh Gazette in respect of canals or navigations in Scotland, and in the Dublin Gazette in respect of canals or navigations in Ireland, and in some newspaper circulating in the county or counties wherein such canal or navigation, or some part thereof, shall pass, one month at the least previously to the exercise of such powers, whereupon, or immediately after the expiration of such notice, every such companj', and all such com- mis:^ioners, trustees, or lessees, owners and proprietors, or their respective committees, directors, or managers, or their agents by them duly authorized in manner aforesaid, may from time to time put in force and exercise the said powers, or any of them, in the manner by this act authorized. IV. Provided always, and be it enacted, tliat nothing in this act Savins ii.,'iits 1 • ~ 1 speciiically rc- contained shall be deemed or construed to deprive anj'^ canal or seived to canal navigation company, or the commissioners, trustees, undertakers, f,u"i^.rs'ijy^exi'st- or proprietors of ar.y canal, river, or navigation, or the owners, jiis acts of par- lessees or occupiers of any lauds, collieries, quarries, or other here- ditaments adjoining or ngar to any of such canals or navigations, or the overseers or surveyors of the roads of any parish, township, or hamlet through which any such canal or navigation may pass} of any power?, rights, privileges, exemptions, or advantages spe- cifically and expressly secured to them by any existing act of jiar- liament : provided also, that where by any canal or navigation act or acts now passed the tolls, rates, or duties (whether tolls per mile or tolls in gross) upon any description of goods, animals, articles, or things, or uj^on any boats, barges or other vessels which shall be navigated, curried or conveyed along any canal or navigation, or any portion thereof, and which shall pass into, out of, or along 350 Appendix. Canal companies subject to a limi- tation of profits anj' such canal or navigation, or an}' portion tliereof, from, into or along any other canal or navigation, canals or navigations, ad- joining or communicating therewith, or any portion thereof, or from or to tlie junction or junctions with any such adjoining or com- municating canal or navigation, canals or navigations, are or shall be specially fixed, determined, or limited, either absolutely, or with reference to the tolls, rates or duties to be levied or received from time to time on goods, animals, articles, or things, boats, barges or other vessels passing into, out of, or along such canal or navigation, or any portion or portions thereof respectively, from, into, or along any other adjoining or communicating canal or navigation, canals or navigations, or from or to the junction or junctions with such other adjoining or communicating canal or navigation, canals or navigations ; or where in any such act or acts anj' special enactment or provision shall have been inserted for securing a rateable reduction or advance of the respective tolls, rates or duties to be levied or received from time to time on goods, animals, articles, or things, boats, barges, or other vessels, or on goods, animals, articles, or things of the same description, passing over, along, into, or from any canal or navigation, or several and distinct portions of any canal or navigation, into or along two or more adjoining or communicating canals or naviga- tions, or from or to the respective junctions of two or more adjoining or communicating canals or navigations, no alteration or variation of the tolls, rates and duties so specially fixed, determined or limited, or any or either of them, other than such alterations or variations as are respectively authorized to be made under the several acts for regulating sucli canals or navigations, shall be made under tlie authority of this act, without the previous consent in writing of the proprietors, trustees, undertakers or commissioners of the canal or navigation, or of all the several canals or navigations who are expressly mentioned in such special enactments or pro- visions, or of the committee, directors or managers of the company, trustees, undertakers, or commissioners, or respective companies, trustees, undertakers or commissioners of such canal or navigation, canals or navigations, wliich consents such companies, trustees, undertakers, and commissioners, or their respective committees, directors, or managers, are hereby authorized to give, either under their common seals respectivelj', or under the hand of their re- spective clerks or secretaries, although any such companies, ti'ustees or undertakers so consenting may not have adopted the other powers of this act. V. Provided also, and be it enacted, that where in any canal or navigation act there shall have been inserted any special provision, 8 & 9 Vict. Cap. 28. 351 wliich shall be still in force and unrepealed, whereby the amount not to raise their of the annual dividends, interest or profits to be shared or divided ceed the maxi- aniongit the proprietors or shareholders of such canal or navigation '""™ of proiits. shall have been limited not to exceed a certain per-centage or amount, and the maximum of such per-centage or amount shall have been attained at the time of the passing of this act, it shall not be lawful for the company of proprietors, trustees or under- takers of any such canal or navigation to avail themselves of any of the powers of this act for the purpose of raising or increasing the tonnage rates, tolls or duties which on the first day of January immediately before the passing of this act were charged or levied upon any boats, barges or other vessels carried upon or passing along such canal or navigation, or any part thereof. VI. And be it enacted, that nothing herein contained shall be Nothing herein , . 1 1 11 *o exempt any construed to exempt any canal or navigation company who shall canal, &c. from adopt the powers of this act from the operation of any general act ^"^ genera ac . regulating the manner of charging tolls and other charges upon canals and navigations in respect of passengers, goods, animals, articles, and things of a like description, which may be passed in the course of any future session of parliament. YII. And be it enacted, that this act may be amended or repealed Act may he by any act to be passed in this present session of parliament. ' CANAL COMPANIES ACT. 8 & 9 Vict. c. 42, ss. 8—13 (a). An Act to enable Canal Companies to become Carriers of Goods tip07i their Canals. \2\st July, 1845.] VIII. And be it enacted, that it shall be lawful for any such Canai companies canal or navigation company, from time to time, by lease, to take ]e"ase°thdr toUs. effect in possession within six months from the letting thereof, to let the tolls and duties or any part thereof, upon the whole or any part of any such canal or navigation, or of any such railways or tram- ways, to any other canal or navigation company (and which lease such other canal or navigation company is hereby authorized to accept and enter into), for any period not ex'ceeding twenty-ono years from the commencement of any such lease : provided always, that no such letting shall take place unless public notice of the in- ■ (a) For earlier sections, sec p. 323 — 326. 352 Appendix. Lessees to be deemed col- lectors. Lessee niakinn default to be removed. Power to re-let tolls. Act not to apply to canals vested in thaiL-Uoldcr.^, until approved of at a meeting?, or in otlier cases by proprietors, and notices in- serted in Gazelles, &c. tention to let such tolls, or the piirt thereof intended to be let, shall have been given by the company jsroposhig to let the same, by ad- vertisement, at least fourteen days ])rior to the meeting of the directors or managers at which it shall be intended to let such tolls. IX. And be it enacted, that during the continuance of any such lease the respective lessees named therein, and also all persons ap- pointed by them to collect the tolls so let, shall be deemed collectors of the tolls so let, and they shall have the same powers to collect and recover such tolls, and be subject to the same rules, duties, and penalties in reference thereto, as if they had been appointed for that purpose by the company demising the same. X. And be it enacted, that if any such lease shall become void or voidable, according to any stipulations tljcrcin contained for that purpose, by reason of the failure on the part of the lessee to comply with any of the terms of such lease, or if all or any part of the rent thereby reserved shall be in arrear or unpaid for twenty-one days after the same shall become payable, then, upon application made by the company who shall bave demised the same, to a justice, it shall be lawful for such justice to order any constable, with proper assist- ance, to enter upon any toll house, dwelling house, office, v.-eighing machine, or other building, with the appurtenances, belonging to the lessors, and remove from the same the lessee or collector or other person found therein, together with his goods, and take possession thereof and of all property found therein belonging to the lessors, and deliver the same to them or any person appointed by them for that purpose. XI. And be it enacted, that upon such possession being obtained it shall be lawful for the company having made such demise to de- termine the lease (if any) previously subsisting, and the same shall accordingly be utterly void, except as to the remedies of the lessors for payment of the rent due, or in respect of any unperformed or broken obligations or conditions on the lessee's part, all which n'uiedies shall remain in full force ; and in every such case, either during such proceedings or on the termination thereof, the company may again let the tolls to the same or any other pei'son, or cause them to be collected in the same manner as if no such former lease had been made relative thereto. XII. Provided always, and be it enacted, that this act shall not applj'^ to any canal or navigation the i)ro]>erty wherein is vested in shareholders, nor shall the powers of leasing hereinbefore contained be exercised by anjr such canal or navigation companj', until a meeting of the shareholders thereof shall have been duly convened in such manner as meetings are by their respective acts of incor- poration or settlement required to be called or are usually called, 8 & 9 Vict. Cap. 42. 353 and it shall have been determined by a majority of two thirds of the votes of the shareholders in such meeting assembled, eitlier in person or by proxy, where by such acts of incorporation or settle- ment voting by proxy is allowed, to adopt the powers and provisions hereby granted, or such and so many of them as it shall at such meeting be determined shall be adopted, or to grant or accept anjj^ such lease, nor to any canal or navigation the property wherein is vested in one or more owner or owners, proprietor or proprietors, unless the owner or owners, proprietor or proprietors thereof shall determine to adopt the powers and provisions hereby granted, nor in either case until public notice of any such determination and inten- tion shall have been inserted in the London Gazette in respect of canals or navigations in England or Wales, in the Edinburgh Gazette in respect of canals or navigations in Scotland, and in the Dublin Gazette in respect of canals or navigations in Ireland, and in some newspaper circulating in the county or counties wherein such canal or navigation, or some part thereof, shall pass, one month at the least previously to the exercise of any such powers, whereupon^ or immediately after the expiration of such notice, every such company, or their respective committees, directors, or managers, or their agents by them duly authorized in manner aforesaid, may from time to time put in force and exercise the said powers or any of them, in the manner by this act authorized. XIII. And be it enacted, that nothing herein contained shall be Act not to exempt construed to exempt any canal or navigation company who shall from'any"gei"erai adopt the powers of this act from the operation of any general act ^''^• regulating the manner of charging tolls and other charges upon canals or navigations in respect of passengers, goods, animals, articles, and things of a like description, which may be passed in the course of any future session of parliament. RAILWAYS ACT. 21 & 22 Vict. c. 75 («). An Act to amend the Law relating to Cheap Trains, and to restrain the Exercise of certain Powers by Canal Companies being also Railway Comjnmies. [2nd August, 1858.] " Whereas by the act passed in the session of parliament held in 7 & 8 Vict, c 85. the seventh and eighth years of the reign of her present Majesty, (a) Made perpetual by 23 & 2i Vict. c. 41. A A 354 Appendix. chapter eighty-five, section six, it is enacted, amongst other things, with respect to the cheap trains tlieveby required to be provided in certain cases, that tlie fare or charge for each third-class passenger by any such train shall not exceed one penny for each mile tra- velled : and whereas it is expedient to amend the said act in manner hereinafter mentioned : and whereas it is also expedient to amend the act passed in the ninth year of the reign of her present majesty, 8 & 9 A'ict. c. 42. chapter forty-two, intituled * An Act to enable Canal Companies to become Carriers of Goods upon their Canals,' by restraining as hereinafter mentioned the exercise of certain powers therein con- tained :" be it enacted as follows : For fractions I. When the distance travelled by any third-class passenger by one penny may any train run in compliance with the provisions relating to cheap foVfracUon's^ex- ti'^ins Contained in the said act of the seventh and eighth of Victoria, ceedinghaifa chapter eiglitv-five, is a portion of a mile, and does not amount to mile, where the •■, , \< n p , distance amounts One mile, the fare for such portion of a mile may be one penny, or more, one half- w"hen sucli distance amounts to one mile, or two or more miles, and char'^e™^^ ^^ ^ portion of another mile, the fare or charge for such portion of a mile, if the same amounts to or exceeds one half mile, may be one- halfpenny : provided always, that for children of three years and upwards, but under twelve years of age, the fare or charge shall not exceed half the charge for an adult passenger. Rates heretofore II. After the passing of this act, no fare heretofore charged to or ceeding those received from any thiid-class passenger by any such train as afore- ciause not^o'^bl ^"^"^ shall, in any proceeding to be hereafter instituted, be deemed deemed exces- to have exceeded the rate prescribed in such case by the said act of sive. . ^ •' the seventh and eighth of Victoria, chapter eighty-five, if the same shall not have exceeded the rate of one farthing for each entire quarter of a mile travelled. Canal companies. III. Notwithstanding anything contained in the said recited act companies, not to of the ninth year of her Majesty, it shall not be lawful for any canais^unTes°^ Canal Or navigation company, being also a railway company, or specially aiitho- entitled to work any railway constructed under the authority of any act of parliament, hereafter to accept a lease of the whole or any part of the imdertaking of any other railway and canal com- pany, or of any canal or navigation company, or of the tolls, dues, or charges upon or in respect of the whole or anj-- part of any such undertaking, except under the powers of some act or acts hereto- fore passed or to be hereafter passed in which the parties to anj'^ such lease sliall be specifically named and authorized to enter into the same. Act to be in force IV. This act shall continue in force for one year next after the for one year. -inii , ■< ,• i 1 •/> passing tlicreoi, and thence to the end of the tlien next session ot parliament. INDEX. A. Abatement : picas in, 215. Accident : inevitable, what is, 73, 128. when carrier liable for, 75, 111. special carriers not lia1)le for, 75, 127, 1G2. by fire, liability for, 129. damages for, how estimated, 230. notice of railway, must be given to Board of Trade, 242. Accident, Death by: who may sue, 213. Accidents to Passengers: carrier's liability for, 21. primvL facie evidence of negligence, 24', 29, 128. carriers not liable for inevitable, 24, 27, 134. by excursion trains, 25. when carrier is on wrong side of road, 29. Acquiescence : in contract when presumed, 106. Act of God: carriers not liable for, 14, 3G, 127. what is, 73—80. Action: immediate right of, on breach of contract, 113. by and against carriers, 206. parties to, 207. right of, in contract or tort, 212. form of, 214, 217. different causes of, may be joined, 214. notice of, not necessary, 256. Adverse Title: see Title. Advertisement : how far evidence of notice by carrier, 85, 91, 106. when evidence of misrepresentation against carrier, 112. Affidavit: in proceedings under Railway and Canal Act, must be distinct, 296. not allowed in reply, 296. must disclose a public grievance, 296, 297. aa2 356 INDEX. Agents : delivery to, by consignor, 57. how proved to be, 57, 171- sub, effect of delivery to, GO. intermediate carriers not liable as, 71. liability of carrier for act of, see tit. Servants. when may sue for loss and damage of goods, 209. Agister : liable for negligence, 7. Agreement, Special: see Special Contract. Agreements, Private : prohibited by Railway and Canal Act, 280, 282. secret, discouraged, 288, 291. not bad, if open to all, 295. costs in injunctions against, 298. Animals : carrier's liability for loss of, or injury to, 108, 135, 145, 261. not luggage, 245. Arbitration : railway companies may refer disputes to, 242. under Railway and Canal Traffic Act, 275. reference to, when refused, 293. Arrest : railway carriers right to, 246, 247. Assault : carrier may be sued for, 247. Attachment: under Railway and Canal Traffic Act, when will issue, 275, 283. B. Bailee: may commit larceny, 205. may sue for loss of goods, 209, 212. servant may sue as, 212. for hire, only liable for actual value of goods, 220, 221. Bailment : meaning and definition of, 1. different kinds of, 1. difference of possession under, from finding, 1, five classes of, 1. gratuitous, nature of, 2, 3, 125. is the measure of negligence, 124. joint, effect of, on right of action, 213. 1 INDEX. 357 Bank Notes : valuables within Carriers' Act, 114. Bill of Lading : effect of, in passing property, 211. Bills of Exchange: valuables within Carriers' Act, 114, 117. Board of Trade: right of, to control railway carriers, 240, 241. may allow or disallow bye-laws, 240. may order prosecutions of railway carriers, 240. may appoint inspectors of railways, 240. may call for railway returns, 240. Booking-office Keepers: liability of, as agents, 57, 58, 59. carrier bound by acts of, 59, 61. evidence against, 60. when personally liable, 60. under 11 Geo. 4 & 1 Will, 4, c. 68,.. 61. Bridge : accident from breaking down of, 21, 132, Bye-law : effect of, 41. constructive notice under. 111. penalty under, 164. may be allowed or not by Board of Trade, 240. railway carrier cannot arrest for breach of, 248. power of railway carriers to make, 249, 250. for government of railway servants, 250. how made, 251. how published, 252—255. must not be opposed to law, 253. of canal company, 254. how proved, 256. C. Cabs: railways how far bound to achnit in station, 278. Canal : injunction as to repairing, 295, Canal Company: power to make bye-laws, 254. definition of, 327. liability under Railway and Canal Act, 321; general liability for negligence, 322. may be carriers, 323. may levy tolls, 323. may make bye-laws, 324i 358 INDEX. Canal Company — continued. may use stcain, &c., 321'. may levy reasonable cliarges, 324. not liable more than common carriers, 325. may make arrangements with other canal companies, 326. may borrow money on mortgage, 32G. Cauuiaoe : defective, carrier's liability for, 132. Caurier by Water : not affected by Carriers' Act, llf). warrants impliedly the soundness of his vessel, 134. subject to same law as land carriers, 315, 319. warrants ship seaworthy, 320. whether bound to land goods, 320. not bound by Carriers' Act, 321. general liability of, 315, 321. Carrier for Hire (not being Common Carrier) : only liable for negligence, 93. not liable for gross negligence under special contract, 05, 109, 110. liability of, for negligence, 4, 120, 12G. must use ordinary diligence, 5, 12, 121, 12G, 128. not liable as an insurer, 14. not liable for inevitable accident, 127. liable as an insurer with express warranty, 15. beyond the realm, 19. how different from common carrier, 24, 120. duty of, in dealing with goods according to implied contract, 113. bound by servant's contract, 113. Carriers of Passengers : do not insure safety of passengers, 21. only liable for express negligence, 21. principle of carrier's liability for accident to, 21, 137. are not strictly common carriers, 23. liability of, during whole of transit, 20. must inform passenger of danger, 26. must use safe vehicles, 26, 27. when bound to proceed on journey, 28, 29. must receive all alike, 28. ■» need not receive disorderly passengers, 28. fl must not overcrowd vehicle, 28. may demand fare before receiving passenger, 28. not bound to receive bad or disorderly characters, 23. carrier's liability for luggage, when passenger retains custody, 55. must set down when required, 164. has no lien for hire, 199* INDEX. 359 Carrier without Hire : liabilities and duties of, 2, 9. must use moderate or sliglu prudence, 9. only liable for gross or culpable negligence, V. description of a question for jury, 15. Carriers' Act : effect of not declaring value under, on carrier's liability, 82, 80, 97. object of, 95, 97, 98. effect of, 98, 115. when carrier must sign receipt under, 97. does not affect special contracts, 97. whole amount of value, when recoverable under, 97, 221. leaves cai'rier liable for felony or tort of servant, 97. carrier only liable for damage actually proved, 97. money may be paid into court under, 97. effect of statutory notice under, 100. does not protect carrier from liability for delay, 102. refers to public notices, not to private notices, 106. what articles are comprised within, 114. what is negligence under, 118. whether, limited to inland carriage, 119. does not extend to inland carriers by water, 321. carrier's liability for negligence under, 149 — 154. whether, removes carrier's liability for gross negligence, 154. carrier's liability for act of servant under, 176. defence under, must be pleaded specially, 217. Cattle : liability of carrier of, for delay in delivering, 52. injury to, 108, 110. loss of, 135. carrier liable for loss of, or damage to, as of ordinary goods, 136. nature of evidence to prove damage to, 138, 139. railway carrier's liability for damage to, 264, 266. Certificate : bankrupts within Carriers' Act, 118. Children : when entitled to be carried on railways at half fares, 243. China : valuables within Carriers' Act, 114. Clocks: valuables within Carriers' Act, 114. Coin : gold or silver, valuables within Carriers' Act, 114. Collision : when evidence of negligence, 135 : see Accident, NEGLioENCEi who arc liable for, 159, 169. 360 INDEX. Collision — conthucd. of carriages, 159, 169. of steamboats, 161. Commencement of Carrier's Liability, 54. Common Carrier : is an insurer, 4, 14, 18, 36. who is a, 16. carrier of messages may be, 16. definitions of, 16, 17. liabilities of, 17, 33. duties of, 33. may be carrier by sea, 18. evidence of being, 18. liability of, for refusing to carry, 19, 106. extra-territorial, 19. what constitutes, 24, 34. may limit his liability, 24, 107, 108. may be sued for refusing to carry, 33, 34, 40, 95. entitled to remuneration, 33, 35. may clioose time and mode of carrying, 34. may carry only particular goods, 34. not liable when deceived, 37, 38. must deliver safely, 40 — 45. must deliver to consignee, 46. liable for delivery to wrong consignee, 48. may deliver to real owner, 49. when bound to deliver, 49, 50. must deliver in reasonable time, 52. liable beyond his own limits, 66 — 71. beyond the realm may be, 72. may limit his liability by special contract, 94, 107, 120. duty of, under implied contract, 112. may demand hire before carrying, 200, 201. not bound to receive goods before ready for journey, 202. Communication of Value under Carriers' Act, 118 : see Value. Concealment : effect of in limiting carrier's risk, 37, 38, 83. avoids carrier's risk, 91, 100. Conditions : railway and canal carriers may make reasonable, 262, et seqt only superior court can decide on reasonableness of, 264. Consignee : carrier must deliver to, 33, 38, 46. where entitled to have goods delivered, 40, 45. wrong, carrier liable for delivery to, 48. INDEX. 361 Consignee — continued. when cannot be found, duty of carrier, 48, 49, 129, 187. delivery must be at residence of, 49. tender to, sufficient, 49. when refuses to receive, duty of carrier, 188, 189. proper plaintiff to sue for loss of goods and damage, 207- rights of, as against consignor, 209. Consignor : duty of carrier to, when consignee cannot be found, 49, 129, 187. carrier liable notwithstanding delivery to, 50, when entitled to sue and be sued, 208. when entitled to sue for loss of goods, 61. effect of retaining custody of goods, 43, 155. Constructive Notice : evidence of special contract, 107. under bye-law, 111. Contents of Parcel: carrier how far entitled to know, 86, 91, 155. effect of not disclosing at common law, 155. Contract : inability to perform, no excuse, 76, 184. ultra vires, effect of, 76. special, effect of, 92, 95. evidence of, 104. breach of, gives immediate right of action, 113. unilateral, cannot be enforced, 113. must be performed even where obstacles are uncontrollable, 76, 112, 184. course of business, evidence of, 175. Contractor : carrier not liable for acts of, 167, 169. Contribution: carriers co-partners, when entitled to, 64, 213. Contribution to Negligence : by customers, effect of, 132, 154, 158, 185, 213. by third party, 158, 162, 185. carrier not liable for damages in, 227. Conversion of Goods : what is evidence of, 190. Costs: independently of County Courts Acts, 231 — 233* under County Courts Acts, 233 — 236. under Railway and Canal Act, 297*. 362 INDEX. Countermand: consignor's right of, li'J, 162. consignor may at any point of journey, 163. unreasonable not allowed, 16'1'. passenger's right of at any point of transit, IGl. CouusE OF Business : evidence of contract, 175. Custom : effect of in limiting carrier's liability, 51, 65, 111. of delivery, a question for a jury, 55. evidence of contract, 174. Custody of Goods : effect of consignor's retaining, 43, 155. D. Damage : liability of carrier for, under Carriers' Act, 97. Damages: measure of, 219. value of goods the measure of, 219. carrier not liable for consequential, 220. under Carriers' Act, 221. carrier liable for reasonable and proximate, but not remote, 222 — 226. per centage of profit when measure of, 223, 224. when constructive knowledge increases, 225. for non-fulfilment of sub-contract, 227. in cases of contributed negligence, 227. vindictive, in tort, 229. in accidents, 230. Danger : I'easonable apprehension of what is, 27. Dangerous Goods : effect of concealing, on carrier's liability, 87. carrier not bound to take, 248. Death by Accident : personal representative's right of action for, 213. damages for, 230. Declaration : form of, 214. may be amended, 214. when, should state contract, 215. Deeds, Title : valuables under Carriers' Act, 114. INDEX. 363 Deflct : in vehicle, carrier when liable for, 132, 133, 145, Delay : carrier's liability for, 28, 51, 269. loss by, 39. a question for a jiny, 53. when caused by physical obstruction, 77, 112. carrier not protected from liablity for, under Carriers' Act, 102. carrier's liability for, may be superseded by contract, 111. Delivery: duty of carriers as to, 38. place of, 42 — 45. to wrong consignee, carrier liable for delivery to, 48. what is reasonable time for, 51, 111, 112. actual or constructive, 54, 55. evidence of, to carrier, 54. carrier not liable before, to him, 183. carrier not liable after, 183, what is, question for jury, 183. Deviation : from road, effect of, on carrier's liability, 132. Disorderly Passenger : may be turned out of vehicle, 29. Dog: carrier's liability for loss of, 135. not entitled to be carried as luggage, 245. railway carrier's liability for loss of, 267. Drivers : of vehicles, must avoid foot passengers, 30. of stage carriages, when subject to penalties, 31. Drunkenness : evidence of negligence, 131. Duration : of carrier's liability, 62, 71. Duty of Carrier: commencement of, 33. end of, 36. E. Electric Telegraph Company: are common carriers, 16. non-liability of, for mistakes, 112. railway companies bound to admit, 245, special contract by, 271. 364 INDEX. End of Carrier's liability : how far extended, 66. Engravings : valuables within Carriers' Act, 114, 116. Evidence : in assumpsit, 217. in non assumpsit, 218. Excursion Train : liability of railway carriers for not duly sending, 112. Extra-Territorial Carriers : may be common carriers, 19. F. False Imprisonment: when carrier may be sued for, 247. False Representation of Time : when carrier may be sued for, 112. Fare : right of can-ier to demand higher for short distances, 165. Felony of Servant : carrier's liability for, 176 — 182. of carrier, 204. Fire : carrier's liability for loss by, 63, 64, 162. loss by, where several carriers, 69. bailee's liability for accident by, 129, 132. Fish : carrier's liability for, 104, railway carrier's liability for damage to, 269, 270. Foot-Passengers : may walk in road, 30. must avoid vehicles, 30, 157. Fraud : what is, 37. effect of, on carrier's liability, 37, 38, 83. excuses carrier, 83. what is evidence of, 84. question for jury on the circumstances, 85. distinction between, and gross negligence, 122, 123. Frauds i Statute of, effect of, on owher's right to sue, 209. INDEX. 365 Furs : valuables within Carriers' Act, IH, 116, G. General Issue : eflFect of, 215, 216. Glass : valuables within Carriers' Act, 114, 116. Gold Coin : valuables within Carriers' Act, 114. Gratuitous Bailment: not favoured by the courts, 12. Gross Negligence : what is, 6, 12, 124. carrier not liable for, at common law, under special contract, 108 — 110, 140, 149,260. carrier's liability for, under Carriers' Act, 149 — 154. railway and canal carriers liable for, 238, 260, 272. H. Hackney Carriages: metropolitan and country, how regulated, 32. rates of hire for, 203. Highway: right of passengers to walk in, 30. regulations of, 204. Hire: carriers entitled to before carrying, 35. carriers entitled only to reasonable, 35, 200, 202. whether larger may be demanded at common law for short distances, 165. carrier has a lien for, 196. carrier's right of, when customer rescinds contract, 199. customer may refuse to pay exorbitant, 200. carrier entitled to increased, under Carriers' Act, 201. reasonableness of, a question for a jury, 201. carrier may sue for, 202. must be equal for all, 202. carrier generally not entitled to rateable, 203. carrier cannot open packages to estimate, 202. under London Porterage Act, 203. railway carrier may arrest for non-payment of, 246. may be proportioned to quantity of traffic by railway carriers, 294. of canal carriers, 325. 366 INDEX. Horse : accident by restiveness of, 29. carrier's liability for damage to, 108, 110. railway carrier's liability for damage to, 262, 266. JIOYMAN ; liability of, 315. I. Inevitable Accident : special carrier not liable for, 127, 128. Injunctions against undue Preference: principles in granting, 276, 282. must be founded on public inconvenience, 279, 283. for refusing to admit cabs in station, 278. for agreements distinct from general traffic, 280, 284, 288. refused, in season ticket case, 280. in cases of distinct charges, 290. fair interests of company to be considered in, 291. refused, when advantages are open to all alike, 291. refused, when reduction is in proportion to traffic, 291, 292. Innkeeper: liability of, same as common carriers, 33. Interpleader Act : carrier's remedy by, 192. J. Jewellery : valuables within Carriers' Act, 114, 116. Jus Tertii : carrier cannot set up, 189. K, King's Enemies: carriers not liable for loss by, 36, 81, 127. loss by, does not include loss by thieves, Src, 81, 82. Lace: valuables within Carriers' Act, 114. Lading, Bill of: effect in passing property, 211. Larceny: carrier's liability for, 14, 82, 204. of servant, carrier's liability for, 176 — 182. railway ticket may bo subject of, 25G. INDEX. 367 Lien : carrier's right of, 195. nature of, 195. depends on contract, express or implied, 196. for hire, 195. doctrine of, not favoured, 197. for general balance, 198. for distinct contracts, 199. lost by parting with possession, 199. when contract rescinded, 199. on luggage of passenger, 199. none on passenger, 199. Lighterman : may be a common carrier, 16. Live Stock : carrier's liability for, 135. See Cattle. LOCATIO OPERIS FACIENDI: bailment of, 4. Locomotive Engines: may be used on railways, 245. Loss OF Goods : x\on-(\e\ivery, prim/i facie evidence of, 45. carriers how far protected against by Carriers' Act, 102. Luggage : railway carrier's liability for loss of, 40, 41, carrier's right of lien on, 199. how much allowed third class passengers, 243. what is, 244. what amount of, passenger by railway entitled to carry, 244. dogs are not, 245. when bye-law does not protect carrier for loss of, 254. M. Mails, Public . railway carriers bound to carry, 239. Mandatory : duty of, 3. only bound to use slight care, 3. Mandatum : bailment of, 2. Maps : valuables within Carriers' Act, 114. Markles: carrier's lial)ilily for dainngo to, 2G5. 368 INDEX. Market: when carriers not liable for loss of, 2G4, 269. Misdelivery : of goods, how far evidence of negligence, 131. Misjoinder : of plaintiffs may be amended, 213. Money : gold or silver, &c,, valuables within Carriers' Act, 114, 117. N. Negligence : different kinds of, 5—7, 120. definition of, 126. gross, what is, 6, 120, 124. culpable, what is, 6, 12, 121. when plaintiff contributes to, 14. when road is defective, 21. when vehicle is defective, 21. t.ccident prima facie evidence of, 24, 25, 128, 161. gross, carriers not liable for, under special contract, 108 — 110. different from fraud, 122, 124. depends on extent of trust, 124. presumption of, how rebutted, 129. what is evidence of, 129, 130. when carrier liable for, on delivery to wrong consignee, 129. misdelivei'y not proof of, 131. drunkenness evidence of, 131. owner's contribution to, effect of, 132. railway accident, when evidence of, 134. carrier not liable for, at common law, under special contract, 140 — 149. carrier's liability for, under Carriers' Act, 149 — 154. where customer contributes to, 128, 154—158, 159, 185, 213, 227. liability of third party for, 158—162. evidence of, against railway carriers, 173. damages in cases of, 229. NoN Assumpsit : effect of general issue of, 215, 217. evidence in, 217. Nondelivery : prima facie evidence of loss, 45. insufficient evidence of, 46, 131. Nonjoinder of Plaintiffs: may be amended before or at trial, 213. INDE . 369 Notes, Bank : valuables within Carriers' Act, 115, Not Guilty : effect of, as general issue, 21G. Notice: effect of public, on carrier's liability, 84, 98. public, carrier cannot limit liability by, 92, 97, 98. under Carriers' Act, 96, 98, 100. where, ought to be affixed, 102. ought to be conspicuous and legible, 103. delivered to a customer creates a special contract, 104. private, not affected by Carriers' Act, 106. constructive, what is, 107. by bye-law, 111. when, does not free carrier, 131. O. Orders for Money: valuables within Carriers' Act, 115. Owners : carriers may deliver to, 49, 191. when, accompanies goods, effect of on carrier's liability, 55. right of, to sue for loss, 209. several, right of, to join as plaintiffs, 213. P. Packed Parcels: cases as to, 298 — 313. Packing : insecure, effect of, on carrier's liability, 154. Painting : carrier's liability for a, 102. valuables within Carriers' Act, 115. Parcel : how far carrier is entitled to know contents of, 88, 89, 90, 91. carrier cannot open to estimate charge, 202. packed, cases as to charges on, 298 — 313. Parties : to an action, 207. Partners : carriers how may be sued, 61. liability of, 62. when not entitled to contribution, 64. B B 370 INDEX. Partners — continued. may be sued separately, 97. how, may sue and be sued, 213. liability of for damage, 213. Passengers : carriers of: see Carriers of Passengers. rights of, 28, 29. right of, to retain place, 28. disorderly, may be turned out, 29. must obey reasonable regulations, 29. on foot may walk in road, 30. no lien on, for hire, 199. Payment into Court: under Carriers' Act, 97. in actions, 215. Penalty: eflPect of under bye-law, 164, Pictures: valuables within Carriers' Act, 115. Plate: valuables within Carriers' Act, 115. Pleadings : present simplicity of, 206. Porterage Act, London : rates of carriage under, 203. Possession : constructive, what is, 210. Postmaster-General : not a common carrier, 16. liability of for loss of letters, 16. liable for actual negligence, 16. carrier's liability for damage to servant of, 25. may be sued for refusing to carry a letter, 33. may require railway carriers to convey public mails, 239. Precious Stones : valuables within Carriers' Act, 115. Presumption of Negligence : how rebutted, 129. Prints : valuables under Carriers' Act, 115, 116. Promissory Notes: valuables within Carriers' Act, 115. INDEX. 371 Pro rata Lien : carrier's title to, 203. Prudence : the standard of, 129. Public Notice: does not limit carrier's liability, 97, 98. See Notice. R. Railway and Canal Traffic Act, 1854: object of, 259, 272. See Injunction, Special Contract. Railway Carriers: may be either common or special, 237, 238. may limit their liability, 237. are liable in all cases for gjoss negligence, 237, 260. governed by special acts, 239, 258. bound to carry public mails, 239. under control of Board of Trade, 240. may punish drunken servants, &c., 240. may prosecute trespassers, 241. may refer to arbitration, 242. must run third class trains, 242. may use locomotive engines, 245. liability of, as compared with other carriers, 246. may arrest for non-payment of fare, 246. may not arrest for non-delivery of ticket, 247. may be sued for false imprisonment, 247. not bound to carry dangerous goods, 248. liability of, for injury to animals, 261. may make reasonable special contracts, 262. Railways: must be made of certain gauge, 240. passenger, definition of, 242. Receipt : signed by carrier under Carriers' Act, 97. Receiving House : what is, 61, 97. Refusal to Carry: liability of carrier for, 106. See Common Carrier. Risk of Sender : contracts at, how construed, 140 — 149, bb2 372 INDEX. Road: rule of, 29. deviation from not necessarily negligence, 29. when carriers may disregard, 29. S. Securities for Money: valuables within Carriers' Act, 115, 117. Servant : felony by, when not binding on master, 7. carrier liable for negligence of, 14, 27, 168. common carrier liable for fraud of, 14. delivery to, binds carrier, 62. effect of delivery to, under Carriers' Act, 103. contract of, binds carrier, 113, 166, 176. when carrier liable for felony of, under Carriers' Act, 153. carrier liable generally for acts of, 166. carrier not liable for act of, when beyond scope of duty, 170, 172, 173, 176. relation of, how proved, 171. when not personally liable, 172. when personally liable, 172. carrier not liable for wilful tort of, 176. carrier's liability for act of, under Carriers' Act, 176, 177 — 182. may sue for master's property when lost, 212. railway, how punishable, 240, 241. must obey bye-laws, 250. Ship: masters and owners may be common carriers, 16. definition of, 318, 320. Silks : valuables within Carriers' Act, 115, 117. Silver : valuables within Carriers' Act, 115. Soldiers : railway carriers bound to convey, 240. Special Carriers for Hire: see Carriers for Hire not being Common Carriers. Special Contract: may free carrier from liability for gross negligence, 108, 110. must be proved distinctly. 111, 134. under Railway and Canal Traffic Act, 1854, must be signed, 114. when exempts carrier from liability, 140. railway and canal carriers may make reasonable, 262, 272. when must be signed, 272. how may be signed, 272. INDEX. 373 Special Contract — continued. effect of, on carrier's liability, 92 — 95. not affected by Carriers' Act, 97, 98. cannot be created by public notice alone, 99. may be made by delivery of notice, lOl, 106. evidence of what is, 104, 105. how made, 107. Speed : rate of third class trains, 243. Stage Carriages: how regulated, 30. what are, 30. must have numbered plates, 31. drivers of, must have licences, 31. in London, how regulated, 31. in country, how regulated, 32. Stage Coachman : may be a common carrier, 16. Stamps : valuables within Carriers' Act, 115. Station : railway carrier when bound to admit persons to, 277. covered, must be provided by railway, 278, 281. Stones, Precious : valuables within Carriers' Act, 115. Stoppage in transitu : owner's right of, 193. carrier how affected by owner's right of, 193. unpaid vendor has right of, 194. is a right of lien, 195. carrier entitled to notice before consignor has right of, 195. Sunday : travelling on, penalties for, 203. trains must have third class carriages, 245. T. Tempest : liability of carrier for loss by, 127. Tender: is equivalent to delivery, 183. Terminus: of carrier's liability, how far extended, 66. 374 INDEX. Thieves : loss by, carrier when liable for, 14, 82. Third Class Trains : how regulated, 242, 243. fare of, 243. Ticket: evidence of special contract, 106. railway carrier may not arrest for nondelivery of, 247. passenger when bound to produce, 248, 253. may be subject of larceny, 25G. season, injunction as to, 281. Time : carrier must deliver in reasonable, 51. what is reasonable, for delivery, 51. reasonable, a question for a jury, 53. delivery within reasonable, may be superseded by contract, 112. carrier must deliver within reasonable, notwithstanding obstacles, 112. of departure and arrival, carrier's liability for not keeping, 112. Timepieces : valuables within Can-iers' Act, 115. Time Tables : of railway can-iers, when evidence, 29, 112. Title, Adverse: carrier how affected by, 189. carrier cannot set up, 189, 190. Tolls: right of railway carriers to levy, 313. Trinkets: valuables within Carriers' Act, 115, 117. U. Ulterior Carrier: how far liable, 66, 71, 167. when not liable, 71. carrier liable for loss by, 134. Ultra Vires : what contracts are, 76. effect of contracts, 76. Undue Preference : injunctions against. See Injunctions. Unilateral Contract: cannot be enforced, 113. INDEX. 375 Usage: effect of, in limiting carrier's liability, 111. evidence of contract, 174. V. Value: effect of concealment of, 85, 100. how far carrier entitled to know, 86, 87. declaration of, under Carriers' Act, 97, 101, 118, 201. whole amount of, when recoverable, under Carriers' Act, 27, 221. effect of declaration of, on carrier's liability, 101, 102. articles of, under Carriers' Act, 114. of goods, when measure of damages, 219. must be proved against railway carrier, 261. water carrier's liability for, 317, 321. Variances: in pleadings may be amended, 214. Vehicle: defective, carrier's liability for, 132. Vendor: unpaid, may stop in trayisitu, 194. when proper party to sue for loss, 210. W. Warehouseman : a bailee for hire, 8. only bound to take reasonable care of goods, 8. liable for negligence, 8. when gratuitous bailee, 10, 11, 63. not an insurer, 46. when liable in place of carrier, 64, 65. not liable without complete delivei-y to, G5. not liable for consequential damages, Q5. when same as carrier, liability of, 65, GQ. right of lien of, 196. only liable for actual value of goods, 220, Water: carrier by. See Carrier by Water. Wilful Misfeasance: effect of, on carrier's liability, under Carriers' Act, 153. Writings : what are valuable, within Carriers' Act, 115, 118. LONDON : PRINTED BY C. ROWORTH AND SONS, BELL YARD, TEMPLE BAR. o- 2 Catalogue LAW WOEKS PUBLISHED BY MESSES. BUTTERAVORTH, HaU) Booksellers auti ^utlisijers TO THE QUEEN'S MOST EXCELLENT MAJESTY H.R.H. THE PRINCE OF WALES. " Now for the Laws of England (if I shall speak my opinion of them " without partiality either to my profession or cotmtry), for the matter and " nature of them, I hold them wise, just and moderate laws : they give to God, " they give to Casar, they give to the subject what appertaineth. It is true " they are as mixt as our language, compounded of British, Saxo7i, Datiish, " Norman customs. And surely as our language is thereby so 7nuch the richer, " so our laws are likewise by that mixture the more complete." — Lord Bacon. 1873. 7, FLEET STREET, LONDON, E.G. o- -o inlitx to Olatalosuc. Accounts, PACE Solifilors'. Coombs .. 27 Law of. Pulling ... 30 Actions at Law. Browne 38 Kerr 17 Lush 13 Williams 33 Admiralty, Practice. Coote ... 9 PrizeLaw. Lushington 27 Aliens. Cutler li Arbitrations. Redman 4 Arbitrations (Masters and Workmen). Lovesy 27 Articled Clerk. Examination Journal 5,39 Handy Book. Mosely 21 Student's Guide. Benham 17 Attachment, Foreign. Brandon ... 23 Awards. Redman 4 Banking. Grant 39 Keyser 37 Bankruptcj'. Bulley & Bund ... 27 Linklater 36 Robson 26 Bar. Pearce 35 Smith 34 Bar Examination Journal .. 32,39 Barbados, Law of ... 35 Belligerents. Hamel 35 Phillimore 19 Bills of Exchange. Grant 26 Bills of Sale. Hunt... 4 Blackstone. Stephen's ... 4, 39 Blockade. Deane ... 36 Bookkeeping, Solicitors'. Coombs 27 Boundaries. Hunt ... lo Brokers. Keyser ... 37 Carriers, Inland. Powell ... 34 Railway. Shelford ... 25 Chamber Practice, Common Law. Parkinson 26 Chancery Practice. Goldsmith 6 Hunter 16 Drafting. Lewis ... 16 Channel Islands. Bowditch 36 Charitable Trusts. Tudor 18 Church Seats. Heales 14 Church Building. Trower 28 Civil Law. Tomkins and Jencken IS Civil Service Exam, page (Indian). Cutler ... 35 Cii-cumstantial Evidence. Wills 31 Code, English Law. Blaxland 37 Collieries. Bainhridge.. 33 Colonial Law. Barbados 35 South Australia ... 35 Commentaries. Phillimore's, Interna- tional 19, 39 Stephen's Blankstone's 4, 39 Commercial, Law. Chitty 37 Treaties. Hertslet ... 28 Forms. Crabb ... 20 Common Form Practice. Coote 7 Common Law, At Chambers. Parkinson 26 Costs. Gray 35 Pleading. Chitty, jun 22 Greening 36 Williams 33 Practice. Dixon 13 Kerr 17 Lush _ 13 Compensation, Law of. Ingram 11 Shelford 25 Consolidation Acts, Shelford 25 Constitution. May 29 Stephen ... 4 , 39 Contraband of "War. Deane 36 Moseley 36 Contracts, Specific Performance. Fry . 30 Conveyancing, Introduction to. Lewis . 16 Practice. Barry . 15 Rouse . 12 Smith . 31 Tudor . 17 Forms. Christie . 20 Crabb . 20 Rouse . 12 Shelford ... . 20 Convictions (Summary), S^/nopsis of. Oke . . 24 Forms. Oke... . 24 Co-operative Societies. Brabrook . 12 Copyholds, Enfranchisement. Rouse Law of, Scriven Coroner. Baker 36 21 23 Corporations, page In General. Grant ... 22 Municipal. Sewell... 37 Costs, Law of. Gray ... 35 County Courts. Davis 6 Equity and Bankruptcy. Davis 6 Criminal Law. Davis 34 Oke 24 Curates. Field 28 Deeds. Tudor 17 Descents. Fearne 87 Divorce. Practice. Browning 23 Drainage. Woolrych 22 Easements. Latham 18 Washburn 36 Ecclesiastical, Practice. Coote 36 Judgments. Burder v. Heath ... 38 Hebbert v. Purchas 38 Long V. Cape Town 38 Martin !'.Mackonochie38 Westerton v. Liddell 38 Election, Law. Davis 23 England, Laws of. Blackstone... 4, 39 Francillon 35 Stephen ... 4, 39 English Bar. Pearce 35 Smith 34 Equity, Doctrine and Practice of. Goldsmith 6 Draftsman. Lewis ... 16 Pleader. Drewry ... 29 Suit in. Hunter ... 16 See Chancery. Evidence, Circumstantial. Wills 31 County Court. Davis 6 Law of. Powell ... 32 Wills. Wigram ... 33 Examinations. Preliminary. Benham ... 17, 40 Journals 5, 32, 39, 40 Intermediate and Final. Mosely 21 Fences. Hunt 10 Fisheries. Oke 24 Foreshores. Hunt 10 Williams v. Nicholson 35 Fonns, Conveyancirig.CxsAib .. 20 Rouse 12 Magisterial. Oke ... 24 Pleading. Greening 36 Probate. Chadwick 26 o- -® INDEX TO CATALOGUE. PACE Frauds. Hunt 4 Friendly Societies. Brabrook 12 Gaius' Roman Law ... 19 Game Laws, oke ... 24 Gaming. Edwards ... 37 Gas Companies Acts.. 29 Gavelkind. Robinson .. 37 Guernsey (Law of). Bowditch 36 Highways. Glen ... 30 House of Lords, Practice. May ... 29 Digested Index to Cases. Clark 15 Idiots. Phillips 30 Indian Penal Code. Cutler and Griffin ... 34 Indian Statute Law. Field 34 Industrial and Provi- dent Societies. Brabrook 12 Inns, Law of. Oke ... 24 Institutes of Public Law. Nasmith 8 Intermediate Exami- nation. Bedford ... 14 International Law. Deane 36 Hamel 35 Phillimore ... ly, 39 Irish Land Act. Butt 31 Jersey (Law of ). Bowditch 36 Joint Stock. JBatiks. Grant ... 39 Companies. Shelford 7 Jurisprudence. FormofLaw. Holland 32 Law Magazine ... 29 Justice of Peace. Oke 24 Land Settlement, An- cient 36 Landlord and Tenant. Fawpett 8 Law Exam. Journal 5, 39 Law Magazine 29 Law Studies. Cutler's Lecture ... 35 Francillon 35 Mosely 21 Smith 34 Stephen's Blackstone 4,39 Leadmg Cases, Real Property. Tudor 17 Leases. Crabb 20 Rouse 12 Legacy Duties. Shelford 21 Legitimacy. Gardner Peerage ... 35 Life Assnrancc. Blayiiey 37 Libel. Starkie 14 Licensing Laws, oke .. 24 Local Government. Glen 31 PAGE Lords Chancellors, &c.. Catalogue of. Hardy 37 Lord Mayor's Court. Brandon 31 Lunacy. _ Phillips ... 30 Magisterial Law, Acts. Davis 34 Practice. Oke ... 24 Forms. Oke 24 ^Maritime Warfare. Deane 36 Hamel 35 Marriage Acts. Bum .. 37 Master and Servant. Davis ... 22 Master and Workmen. Lovesy 27 Mercantile Accounts. Pulling 36 Militia Laws. Dwyer .. 37 Mines and Minerals. Bainbridge 33 ^lortgagcs. Fisher 9 Rouse 12 Municipal Elections. Sewell 37 Naturalization. Cutler 11 Negligence. Saunders.. 11 Neutrals. Phillimore... 19 Nisi Prius. Leigh ... 36 Nuisances. Glen .. 31 Parliamentary. Clifford & Stephens ... 14 Davis 23 May _ 29 Partnership. Dixon 13 Pothier 37 Patents. Norman ... 35 Peerage Claim. Finlason's Wiltes ... 35 Lemarchant's Gardner 35 Petty Sessions. Oke .. 24 Pews. Htales 14 Pleading, Common Law. Chitty. Jun. ... 22 Greening 36 Williams 33 Equity. Drewry ... 29 Lewis ... 16 Guide. Anstey ... 37 Poor Law Orders ... 27 Precedents, Conveyancing. Ciabb 20 Rouse 12 Preliminary Examina- tion Journal 40 Priority. Fisher ... 9 Private Bills. May ... 29 Prize Law. Lusiiington 27 Probate, Practice. Coote ... 7 Forms. Ohadwick ... 26 Duties. Slielford ... 21 Provident Societies. Brabrook 12 Pnljlic Health, oien ... 31 Public Law (EngHsh). Nasmith 8 Questions page On Stephen's Comments. 8 Railways. Shelford 25 Compensation. IngTum 11 Carriers. Powell ... 34 Real Property. Tudor 17 Cttart. Fearne ... 37 Referees' Court Practice. Clifford & Stephens ... 14 Registration. Davis ... 23 Religion. Cliurch and State ... 38 Supremacy of Crown . 38 Religious Confession. Badeley 38 Ritual. Bayford 38 Bullock 38 Hamel 38 Phillimore 38 Roman Law. Gaius 19 Ortolan 10 Tomkins 10 Tomkins and Jencken 18 Savings Banks. Grant 39 Sciences (the) and Law 35 Sea Shore. Hunt ... 10 Settlements, Voluntary, ttc. Cutler 35 Voluntary. Hunt ... 39 Sewers. Woolrych ... 22 Sheriff. Sewell 37 Sheriff 's Court. Davis 6 Short Hand. Gurney... 36 Slander, starkie ... 14 Solicitors' Bookkeeping. Coombs 27 Specific Performance. Fry 30 Stock Exchange. Keyser.ST Succession Duty. Shelford _.. _ ... 21 Snmmarv Convictions. Oke " 24 Suit in Equity. Hunter 16 Tenant, Landlord and. Fawcett 8 Tithes. Schomberg ... 37 TradesUnions. Brabrook 12 Treaties. Hertslet .. 28 Trusts, Charitable. Tudor ... ... .. 18 Turnpike Laws, oke 25 Vendors & Purchasers. Seaborne 15 Water Companies Acts 29 Waters. Hunt 10 Wills. Coote 7 Crabb . 20 Rouse 12 Tudor 17 Wigram ... .33 Winding-uj). Grant 39 Shelford . .. 7 Window Lights. Latham : 18 ^ .<§> ©- LAW WORKS PUBLISHED BY Stephen's Blackstone's Commentaries. — Seventh Edition. In active Preparation, in 4 rals., 8vo. Mr. SERJEANT STEPHEN'S NEW COMMENTARIES ON THE LAWS OF ENGLAND, partly founded on Blackstone. The Seven thEdition, by J AWES Step HEN, LL.D., of the Middle Temple, Barrister- at-Law, formerly Recorder of Poole, and late Professor of English Law at King's College, London ; now Judge of County Courts for Lincolnshire Circuit No. 17. ^ ^ Hunt on Frauds and Bills of Sale. Post 8vo., 9s. cloth. The LAW relatinjv to FRAUDULENT CONVEYANCES, under the Statutes of Elizabeth and the Bankrupt Acts : with Remarks on the Law relating to Bills of Sale. By Arthur Joseph Hdnt, of the Inner Temple, Esq., Barrister at Law, Author of "The Law relating to Boundaries, Fences and Foreshores." " This work is calculated to be of service to the profession. The subject is of never-failing recurrence and the decisions are by no means easy to recorcile and to arrange, and yet each decision, without any exception that we know of, is an authority in itself. Mr. Hunt has brought to bear upon the subject a clearness of statement, an orderliness of arrangement and a subtlety of logical acuteness which carry him far towards a complete systematization of all the cases. Neither has his industry been lacking: the cases that have arisen under the Bankruptcy Act, 18(i9, and under the Bills of Sale Act have been carefully and completely noted up and disposed of by him in their ap])ro- priate places. The index also is both accurate and careful and secures much facility of refer- ence to the various matters wliich are the sub- jects of the work." — Law Magazine. "Though smaller in size, Mr. Hunt's book deals with fraudulent conveyances under the Bankruptcy Acts, a subject which Mr. May in his work left almost untouched, although his book has the undoubted merit of being the first to break fresh ground in treating fraudu- lent conveyances in a separate volume. In reviewing that book last year we took occasion, whilepraising the indus try and care with which it was compiled, to remark on the obscurity of its style. In this respect its younger rival has considerable advantage. Mr. Hunt's book is as readable as a treatise on so technical a sub- ject can well be made. Mr. Hunt's arrange- ment of his materials follows an orderly and intelligible plan. The index is apparently carefully prepared, and the table of cases shews that none of the recent cases have been overlooked. Mr. Hunt has produced a really useful book unencumbered by useless matter, which deserves great success as a manual of the law of fraudulent dispositions of property." — Law Journal, "The author has collected with industry and care the authorities bearing on the ques- tion he has undertaken to deal with. The matter is conveniently broken up, and the reader is assisted by a good index." — Solicitors' Journal. Redman's Law of Arbitrations and Awards. 8vo., I2s. cloth. A CONCISE TREATISE on the LAW of ARBITRATIONS and AWARDS, with an Appendix of Precedents and Statutes. By Joseph Haavorth Redman, of the Middle Temple, Esq., Barrister-at-Law. "A singular feature in this work is, that it the index is a good one. The book is of a has no foot notes, and this is a decided recom- mendation. Mr. Redman goes straight through his task, and gives his cases at the end ot his propositions. Commencing with a brief intro- duction, his second chapter treats of who may be parties to a reference, and each succeeding chapter, divided into sections, exhausts the successive steps in the process of arbitrament. The question of costs, which is apt to cause diliiculty, is very clearly put before the reader, and indeed the chief merit of the work is the singular lucidity with which the law is ex- ]iounded. We give the work all the praise which it can claim when we say that the arrangement is good, the style clear, and the work exhaustive. There is a useful appendix of precedents and statutes, and a very good index." — Law Times. "This is likely to prove a useful book in practice. The only peculiarity in the work belore us is the absence of notes, all the references being given in the text itself. All the ordinary law on the subject is given shortly and in a convenient and accessible form, and portable size and moderate price, and contains a fairly complete appendix of precedents. It is likely enough that it will meet a demand both in the profession and amongst lay arbi- trators. "^S)/(C(7o;'6' Journal. " Mr. Redman's book may do something to expedite matters. It is a concise statement of the law on the questions which ate likely to arise in the I'ourse of a reference or in subse- quent proceedings which may be taken in regard to it. We suppose the real object of the work is to prevent an arbitrator from going wrong in the course of the proceedings before him and in the award. We have no doubt but that in this way the work will be useful. The precedents of awards are clearly and concisely drawn. The arrangement of chapters is con- veniently managed. The law is clearly stated, and, so far as we can judge, all the important cases bearing directly on the subject are given, while the index appears reasonably copious. These facts, combined with the smallness of the volume, ought to make the book a suc- cess." — Latr Journal. -6 o — — o MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 5 LAW EXAMINATION JOURNAL AND LAW STUDENT'S MAGAZINE. Edited by HERBERT NEWMAN MOZLEY, Esq., Barrister at Law. PuhlisJied on the vwrnhiff of the second day after each respective Final Examination in Jlilari/, Easter, Trinitij and Michaelrnas Terms in each year. Each Number price Is., hy post \s. Id.; or annnal subscription, payable in advance, 4s., by post 4s. 4f7. CONTENTS. -Xo. 1. Michaelmas, 1869.-1. County Courts, their Merits and Defects as Local Tribunals : By the Editor. II. Summary of new Decisions in Banco and at Nisi Prius. III. Analysis of the more important practical Statutes of 32 & 33 Vict. IV. Intermediate Exami- nation Questions and Answers (T T. 1869). V. Final Examination Questions and Answers (M. T. 1869). VI. Notes on the Examinations. VII. Correspondence. No. 2. Hilary-, 1870. — I. Note by the Editor. II. On Attonunent in Jlortgages. III. Digest of important recent Decisions. IV. Intermediate Examination Questions and Answers (M. T. 1869). V. final Examination Questions and Answers (H. T. 1870). VI. Correspondence. No. 3. Easter, 1870. — I. On the Fusion of the Two Branches of the Profession: By the Editor, II. Digest of important recent Decisions. III. Intermediate Examination Questions and Answers (II. T. 1870). IV. Final Examination Questions and Answers (E. T. 1870). V. Keviews of New Books. VI. Correspondence. No. 4. Trinity, 1 870. — I. Leading Article on the Fusion of the Two Branches of the Legal Pro- fession: By the Editor (concluded). II. Digest of important Legal Decisions. III. Intermediate Examination Questions and Answers (Easter, 1870). IV. Final Examination Questions and Answers (Trinity, 1870). V. Eeviews of New Books. VI. CoiTCspondence. No. 5. Michaelmas, 1870. — I. Cn the Legislation of 1870 : By the Editor. II. Digest of important Legal Decisions. III. Intermediate Examination Questions and Answers (Trinity, 1870). IV. Final Examination Questions and Answers (Michaelmas, 1870). V. Eeviews of New Books. VI. Cor- respondence. No. 6. Hilary, 1871. — I. Our Jury System: By the Editor. II. Digest of important Legal Decisions. III. Intermediate Examination Questions and Answers (Michaelmas, 1870). IV. Final ExaminationQuestionsandAnswers (HUary,187I). V. Eeviews of New Books. VI. Correspondence. No. 7, Easter, 1871. — I. Some Eemarks on the Married Women's Property Act, 1870 : By the Editor. II. Digest of important Legal Decisions. III. Intermediate Examination Que.stions and Answers (Hilary, 1871). IV. Final Examination Questions and Answers (Easter,1871). V. Keviews of New Books. VI. Correspondence. No. 8. Trinity, 1871. — I. On the Necessity of providing a Public Prosecutor: By the Editor. II. How Jlr. Mansfield Denman passed his " Final :" By E. H. III. Digest of Cases : Note by the Editor. IV. Intermediate Examination Questionsand Answers (Easter, 1871). V. Final Exami- nation Questions and Answers (Trinity, 1871). VI. Correspondence, &c. No. 9. Michaelmas, 1871. — I. On Examinations. II. The Subject of Public Prosecutors (con- tinued). III. Digest of Cases. IV. Intermediate Examination Questions on Chitty, Williams and Smith, Trinity, 1871, with Answers. V. Final Examination Questions and Answers, Michaelma.s Term, 1871. VI. Eeviews of Books. VII. Answers to Correspondents. No. lO. Hilary, 1872.— I. Notice of the late Editor. IL The Study of the Law. III. Digest ofCa.scs. IV. Intermediate Examination Questions and An.swers. V. Final Examination Questions and Answers. VI. Answers to Correspondents. No. 11. Easter, 1872.— I. The Study of the Law. II. Legislative Prospects of the Session, ^larried Women's Property Act Amendment Bill. Imperial Court of Appeal. III. Digest of Cases IV. Intermediate Examination Questions and Answers. Hilary Term, 1872. V. Final Examination Questions and Answers. Easter Term, 1872. VI. Answers to Correspondent.'. No. 12. Trinity, 1872.— I. Public Prosecutors, continued. II. Study of the Law, continued, III. Digest of Cases. IV. Intermediate Examination, Easter Term, 1872 : Questions and Answers. V. Final Examination, Trinity Term, 1872: Questions and Answers. VI. Law Student-s' Congress, Birmingham : Law Examinations. VII. Eeview. VIII. Answers to Correspondents. No. 13. MichaeUnas, 1872. -X. Public Prosecutors, concluded. II. The Statutes of 1872. III. Digest of Cases. IV. Intermediate Examination, Trinity Term, 1872 : Questions and Answers. V. Final Examination, Michaelmas Term, 1872 : Questions and Answers. VI. Keviews. VII. An- swers to Correspondents and Notices. No. 14. Hilary, 1873.— I. The Study of the Law, continued. IL Digest of Cases. III. Inter- mediate Examination, .Alichaelnias Term, 1872 : Questionsand Answers. IV. Final Examination, Hilary Term, 1873: Questionsand Answers. V. Ki'views. VI. Answers to Correspondents and >otices. ^ _ . i ^ LAW WORKS PUBLISHED BY -O Davis's Equity, Bankruptcy, &c. in the County Courts. bvo. Ifex. cloth. The JURISDICTION and PRACTICE of the COUNTY COURTS in EQUITY, ADMIRALTY, PROBATE and ADMINIS- TRATION CASES, and in BANKRUPTCY. By J. E. Davis, of tlie Middle Temple, Esq., Barrister-ar-Law. *,* This wiirk, allhouglt issued sepnraleli/, forms a Snpplemeniary or Second Volume to the Fourth Edition oj Davis's County Courts Practice and Evidence in Actions. " This is the companion volume of Mr. Pavis's Practice and Evidence in Actions in the C'ount:y Couris, which, we are told, had a rapid sale. X'here is one conspicuous merit about all that Mr. Davis does — it is plain, straightforward and practical. Perhaps the most prominent feature of the work is the extensive introduction of sec- tions of acts, rules and forms. No doubt this volume will have as ^reat a success as its pre- decessor : it deserves as much." — Law Times. " The excellent method of the author has not forsaken hini, and the mass of heterogeneous topics which he has been compelled to deal with falls into very good practical order. The County Court judges will no doubt make this book their trusty companion.'* — Solicitors' Joii nal. " We think Mr. Davis will achieve as great a success with the second as he undoubtedly has with the 6r-t volume of his work ou the County Courts." — Tain Journal. Davis's County Courts Practice and Evidence.— 4th Edit. THE PRACTICE and ^EVIDENCE in ACTIONS in the COUNTY COURTS. By James Edtvard Davis, of the Middle Temple, Esq., Barrister-at-Law. *»* 7'his is the only work on the County Courtx ichirh r/ives For?ns of Plaints, and treats fully of the Laic and Eridfnce in Actions and other Proceedings in these Courts. " Mr. Davis's work has grown with the growth of his subject, and hasstood almost as long a trial as the County Courts themselves. 1 he chapters on Evidence, clearly and tersely written, will repay the perusal of every common law prac- titioner, whether in the County or the .Superior Courts. 1 he book is altogether thoroughly well turned out down to its ready-cut pages, for which innovation all persons, especially reviewers, will thank the publishers." — Laii' Journal. It was because these instructions were so full and accurate that Mr. IJavis succeeded in so easilv establishing his work as the Practice of the County Courts, and in maintaining the liosition he had won. All who have used itspeak well of it. Ihey say they can readily find what they want, and, better still, it contains the in- formation they want, which cannot be said of all books of practice. I his has been Mr. Davis's de- sign in his Practice of the County Conns. " It is undoubteiilv the best book on the Prac- tice of the County Courts."— Z.a:^' Times. " A text book which is well known in both branches of the Legal Profession. From a small beginning it has gradually grown into a bulky volume, and now contains an exhaustive expo- sition of the Law and Practice relating to the County Courts. I he third pait of this manual contains a valuable digest of ihe Law of Evi- dence as applicable to the procedure of the County Courts. In this particular it certainly excels all the other text books on the subject. 'ihe importance of this part of the work cannot be too highly estimated."— Xa» ilagaiine. " This is a greatly enlarged edition of Davis's County Court Practice, a work well enough known to need no introduction to the legal pub- lic, or at any rate to that portion thereof which is concerned with proceedings in the County Courts. We can safely and heartily recommend the book for the perusal of all intending prac- titioners in any County Court." ^ &>licilorr' Journal. Goldsmith's Equity.— Sixth Edition. Post 8vo. IS.?, cloth. THE DOCTRINE AND PRACTICE OF EQUITY: or a concise Outline of Proceedings in the High Court of Chancery, designed principallj' for the Use of Students. Si.xth Edition, according to the recent Statutes and Orders. By Geo. Goldsmith, Esq., M.A , Barrister-at-Law. " A well-known law student's book, the best, because the most thoroughly complete, yet sim- plified in.--truclor, in the principles and practice of equity thnt has ever been i rovi^ieil for tiim ; and that its value has been recognized by those who have made use of it is proved by this— that the'r commendations hive carried it to a sixth edit on. Ihe principles of e..uity are as thi-y were, but the practice has so changed since the publication of the first edition, that every part of this division of the work has required to be rewritten almost as often as a new edition was demanded. Of course, the size of the book has grown also, and from being, as we remember it, a ^ery little book^to be carried in the pocket, it hns become a partly volume, and this tairly re- presents its increased merits. Now that every student aspiring to the bar is to be examined be- fore :idmission, good bo ks for instruction in the law will be more tuan ever in request " — I.U7V Times. ■' It is diilicult to know which to praise most, the excellence and dignity of the style, or the ex- haustiveness of the information furnished to the reader. Mr. Goldsmith's plan corresponds to some extent with that adopted by ^Ir. Ilaynes in his exrelb nt '(Outlines of Kcjuity,' but his work is more complete than that of Mr. Haynes." — Tuw Eraminaiion Journal. " 1 he wtole work is elaborated by Mr. Gold- smith with evident care and a determination to deal with all that can come within the scope of the ti'le. It is characterized by comprehensiveness and at the same time conciseness, by clearness of diction and attractiveness of style and avoidance of technicalities which might prove embarrassing to the student, ai d a close adherence to the pur- pose as expressed in the preface. .'\Ir. Gold- smith's volume is marked by as much originality as well can be found in a work of its kind." — Law Jo7irnal " Altogether the author's method and his exe- cution are alike commendable — and we are of opinion that the lawyer, who, as a student, avails himself of the pn lary intention of Mr. Goldsmith's work by findiiiir in it his first equity reading b ok or primer, will afterwards verify the anticipation of the author by making of it diteclu jmenUi or vade mecum in his later pi ac- tice." — L K' Mngzaine, Cxrf notice. o- MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. -O Coote's Probate Court Practice.— Sixth Edition. 8vo., 25^. cloth. THE PRACTICE of the COURT of PROBATE in COMMON FORM BUSINESS. By Henry Charles Coote, F.S.A., Proctor in Doctors' Commons, &c. Also a Treatise on the Practice of the Court in Contentious Business, By Thomas H. Tristram, D.C.L., Ad- vocate in Doctors' Commons, and of the Inner Temple. Sixth Edition, with great Additions, and including all the Statutes, Rules, Orders, &c., to tlie present Time ; together with a Collection of Original Forms and Bills of Costs. " In 1858 Mr. Coote published a first attempt to explain the principles which were to regulate the Common Form Practice of the then new Court of Prohate. Very welcome, indeed, there- fore, was his opportune boolc of practice, and its utility has been significantly proved by the fact that we have the sixth edition now before us bound up with Dt. Tristram's treatise on the Practice of the Court of Probate in (contentious Business." — Laia Magaiiyie. " A book of practice that has arrived at asixth edition needs no praise. I'he fact itself is the best certificate of worth ; for practitioners would not have continued to use it if it had not been found entirely adapted for their requirements. Of course this has followed the course of all law books and grown in bulls with each successive edition, as new statutes, new rules of practice, and new decisions accumulate year by year. But the authors have not been content with mere addition; they have performed diligently the no less important work of paring ilown redundancies and excising the law that has become extinct through subsequent changes. It is the book on its subject, and that is the highest praise that can be given to it." — Laui Times. " £\ ery year the legal arena of probate prac- tice extends itself, and the business which was up to the end of the year 1857 a monopoly in the hands of the ancient proctors has now become the common property of the profession. It is no marvel, ihen, that the book bef re us has in twelve years run through five editions, and that the new year of 1871 ushers in the sixth. Nei- ther the authors nor the publishers would care to deny, that this substantial success is due, in a great measure, to the pressing need that has ex- isted for a guide to probate practice ; but we may also venture to declare, that the success of the work has been brought about as much by lis own intriiisic excellence as by the great demand for a work of the kind. Coote's ' Probate Practice' has beeu the standard woik for twelve years, and we see no reason to doubt that it will maintain its present position for many years to come-"— Xar* Journal, Shelford's Companies — 2nd Edit, by Pitcairn and Latham. 8vo., 2ls. cloth. SHELFORD'S LAW OF JOINT STOCK COMPANIES; containing a Digest of the Case Law on that subject ; the Companies Acts, 1862, 1867, and other Acts relating to Joint Stock Companies; the Orders made under those Acts to regulate Proceedings iu the Court of Chancery and County Courts, and Notes of all Cases interpreting the above Acts and Orders. Second Edition, much enlarged, and bringing the Statutes and Cases down to the date of publication. By David Pitcairn, M.A , Fellow of Magdalen College, Oxford, and of Lincoln's Inn, Barrister-at- Law ; and Francis Law Latham, B.A., Oxon, of the Inner Temple, Barrister-at-Law, author of '' A Treatise on the Law of Window Lights." " We may at once state that, in our opinion, the merits of the work are very great, and we confi- dently expect that it will he at least for the present the standard manual of joint stock company law. 'Ihat great learning and research have heen ex- pended by Mr. Pitcairn no one can doubt who reads only a lew pages of the book ; the result of each case which has any bearing upon the subject under discussion is very lucidly and accurately stated. We heartily congrjlulate him on the appearance of this work, for wh ch we anticiiiate a great suc- cess. There is hardly any portion of the law at the present day so important as that which re- lates to joint stock companies, and that this work will be the standard authority on the subject we have not the shadow of a doubt." — f.aw Jonrnal. " After a carelul examination of this work we are bound to say that we know of no other which surpasses it in two all-important attri- butes of a law book : first, a clear conception on the part of the author of what he intends to do and how he intends to treat his subject: and .secondly, a consistent, laborious and intelligent adherence to his proposed order and method. All decisions are noted and eiiitninised in their proper places, theprdcticedecisions in the notes to Acts and Rules, and the remainder in the introductory account or digest. In the digest Mr. Pitcairn goes into everything with original research, and nothing seems to fsi^ape him. It is enough for us that Air. Pitcairn's performance is able and exhaustive. N othing is omitted, and everything is noted at the proper place. In con- clusion we nave great pleasure in recommending this edition to the practitioner. Whoever pos- sesses it, and keeps it noted uo.will be armed on all parts and points of the law of joint stock companies." — hivliciton'' Journal. " Although nominally a second edition of Mr. Shellord s featise, it is in reality an original work, the form and arrangement adopted by Mr. Sbelford have been changed and, we think, im- proved by Mr. I'itcairn. A full and accurate in- dex also adds to the value of the work, the merits of which, we can have no doubt, will lie fully re- cognized by the profession."— Aaw Magazine. " Ihis bi'ok has always been the vade mecum on company law. and will, apparently, long con- tinue to occupy that position. It is perhaps even more useful to the legal practitioner than to the man of business, hut still it is the best source of information to which the latter can ^o"— finan- cier and Money Market licviea. a- -o 8 LAW WORKS PUBLISHED BY -^ Questions on Stephen's Blackstone. 8vo., ]0s. Of/, clot!). QUESTIONS for LAW STUDENTS on the SIXTH EDI- TION of Mr. SERJEANT STEPHEN'S NEW COMMENTARIES on the LAWS of ENGLAN D. By James Stephex, LL.D., County Court Judge. Nasmith's Institutes of English Public Law. Post 8vo., 12s. cloth. THE INSTITUTES of ENGLISH PUBLIC LAW, embracing an Outline of General Jurisprudence, the Development of the British Consti- tution, Public International Law, and the Public Municipal Law of England. By David Nasmith, Esq., LL.B., of the Middle Temple, Barrister at Law, Author of "The Chronometrical Chart of the History of England," &c. ; Joint Translator of Ortolan's " History of Roman Law." ' We believe the plan of the book is the peared as professed outlines of English law." right one, that, in dealing clearly with general jurisprudence, constitutional law, and the re- lation which this sovereign state bears to other sovereign states, before going to municipal law, he has taken the best course for the stu- dent of law, and that therefore in this impor- tant respect his plan is superior to that pur- sued in the Institutes of Justinian, or by Blackstone and his followers. We have only to add thpt we know ot no book which, in our opinion, might more fitly, or perhaps so fitly, be placed in the hanas of a beginner in the study of law." — Laic, Magazine. "Mr. Nasmith has, we tliink, produced a very useful compendium of the leading divi- sions of the law, and has with care and indus- try collected the pith of the best writers under each head. We think we are right in saying that Mr. Nasmith's is the best and most useful of the little books which have recently ap- -JiiMice of the Peace. " Mr. Nasmith's book is likely to attract the attention it deserves. It is the careful compilation of an accomplished scholar, and of a perfect master of his work. He is original as well as scholarly, and displays all the learning of Heidelburg with the versatility peculiar to a Celtic nativity." — Morning Post. "The object of this book, as fully stated in the preface, is to explain the relative positions of the individual and the state in the English system of jurisprudence. It is not an account of the whole body of the law, but only of that portion of it which regulates the duties of state functionaries and bodies, and the duties of citizens to the state The analysis is care- fully executed, both in arrangement and in detail, and there is a tabular analysis exhibit- ing in a very clear manner the branching out of the different topics, which must be highly useful to students." — Economist. Fawcett's Law of Landlord and Tenant. 8vo., 14s. cloth. A COMPENDIUM of the LAW of LANDLORD and TENANT, By William Mitchell Fawcett, of Lincoln's Inn, Esq., Barrister-at- Law. " This new compendium of the law on a wide and complicated subject, upon which iriformatioa is constantly required by a vast number of per- sona, it sure to be in request, li never wanders from the point, and being intended not for stu- dents of the law, but for lessors and lessees and their immediate advisers, wisely avoids historical disquisitions, and uses language as untechnical as the subject admits. It may safely be assumed to contain information on all the ordinary ques- tions which either contracting party may require to be answered." — Law Journal. " 1 he author has succeeded in compressing the whole of his subject within the reasonable com- pass of 373 pages. It may roughly be said of IVir. Fawcett's work, that it is statutory through- out, in accordance with the predominant cha- racter of the law at the present day ; and Mr. tawcett takes advantage of this characteristic of modern law to impart to his compendium a de- gree of authenlicity which greatly enhances its value as a convenient medium of reference, for he has stated the law in the very words of the authorities. We have discovered plain utility to be the aim and end of Mr. Fawcett's treatise, and an ambitious merit to be that of Mr. ^ulith and Mr boden's. Probably we should be justified in saying that Mr. Fawcett has more nearly reached his aim. lower as it is, than Mr. Smith and Mr. .Soden."— iow Magazine. " The amount of information compressed into the book is very large. The plan of the book is extremely good, and the arrangement adopted has enabled the author to put together in one place the whole law on any particular branch of the subject, and to avoid repetitions. Thus not only is it easy to find what the author has to say on any particular point, but when we have found a reference to it in one place, we may be satisfied that we have found all the book contains upon the point. In this respect, though probably from its smaller size it must conta.n less inf >rmatioii than Woodfall, it will be found far more con- venient for ordinary use than tiiat treatise. We find far more repetitions in .Mr. Cave's than in Mr. Fawcett's work, and more cases in wh ch the whole law on any point has to be looked for, not in one place but in several ; in this respect, theiefoie, Mr. Fawcett's book has an advantage. We may add that Mr. Fawcett's references are usually given to two sets of reports, while Mr. Cave's are to one only." — Solicitors' Journal. " Woodfall was, and perhaps is, the great auihority on this subject. But his book is bulky, much of it is obsolete, and much useless, and the legislature and the judges have made many changes which sufficiently justify Mr. Fawcett in his undertaking of a new treatise on a subject of such wide-spread interest. His aim, how- ever, is condensation. He contents himself with a plain statement of the existing law, pru- dently omitting all matters of merely historical interest and topics collateral to the special sub- jects ; he has deemed it unnecessary to treat of the details of judicial procedure, or to enact a mass of precedents of leases which are already possessed t)y the profession in other works. Above all, it has been his purpose to stale the law in the language of the authnrities, presenting the princii)les enunciated in the very words of the judges. Another excellent feature is a con- cise summary of the effect of each enactment in the margiial notes. It will be seen from this that the book is thoroughly practical, ami, as such, will doubtless find a favorable reception from the profession." — /-aa 'limes. «- Fisher's General Law of Mortgage. — Second Edition. Two vols, royal 8vo., 55s. cloth. THE LAW of MORTGAGE, and other Securities upon Pro- perty. By William Richard Fisher, of Lincoln's Inn, Esq., Barrister at Law. Second Edition, very considerably enlarged. 'For a length of time it has been received work will receive its due appreciation at the as the beiit text book on the lav? of mortgages, and it has recentlj received the honours of a second edition. We have never been niggards towards Mr. Fisher's very laborious, learned and useful treatise, and we still see no reason to retract those commendations or to reduce their measure. His book thoroughly deserves the character it has won of being the only good and complete repertory we have of the law of mortgages, and other securities upon pro- perty. " — Law Magazine. " The second edition of this book, comprised in two volumes of royal octavo, has little beyond its paternity to identify it with the original volume which appeared in IS56. If we speak of the author's first essay as merely tentative and meagre and partial, it is only to draw particular attentron to the very complete arrangement and copious detail of the edition now before the public and we doubt not that the excellence of the hands of the profession. A word in conclusion is due to the clearness and simplicity which pervades Mr. Fisher's writing. If his language is too often bold and devoid of grace it is never obscure, and we think that the absence of attractive composition will not in these days be accounted a demerit in a treatise designed solely for professional purposes, which pos- sesses the essential qualities of accurate learn- ing and lucid arrangement." — Law Journal. "The labour bestowed upon it by Mr. Fisher will be best understood by this fact. The mere list of cases cited in the text tills forty- three pages in double columns, and the list of statutes and orders cited occupies fifteen pages. We conclude by commending this work equally to the practitioner and the stu- dent; it will be invaluable to the former for reference, to the latter for reading and digest- ing."— Xaii; Times. Coote's Admiralty Practice. — Second Edition. THE PRACTICE of tlJHIGH°COURT of ADMIRALTY of ENGLAND: also the Practice of the Judicial Committee of Her Majesty's Most Honorable Privy Council in Admiralty Appeals, with Forms and Bills of Costs. By Henry Charles Coote, F.S.A., one of the Ex- aminers of the High Court of Admiralty, Author of ''The Practice of the Court of Probate," &c. Second Edition, almost entirely re-written, with a Supplement giving the County Courts Jurisdiction and Practice in Admiralty, the Act of 1868, Rules, Orders, &c. The Supplement containing the County Court Practice in Admiralty is complete in itself and may he had separately, 2s. served. *»* This work contains every Common Form in use by the Practitioner in Admiralty, as well as every description of Bill of Costs in that Court, a feature possessed by no other work on the Practice in Admiralty. "Mr. Coote, being an Examiner of the Court, may be considered as an authoritative exponent of the points of which he treats. His treatise is, substantially considered.'every- thing that can be desired to the practitioner." — Law Magazine. "The book before us is a second and en- larged edition of a work on the Practice of the Admiralty Court, written by the author some ten years ago. It is, however, a great im- provement on its predecessor, being much fuller and more systematically arranged, and containing greater facilities for reference. The first part of the book Is a treatise on the practice of the Court, which appears to us to be very carefully done, and to go thoroughly into the subject. The second part is a similar treatise on the practice of tlie Judicial Com- mittee of the Privy Council in Admiralty matters, written on the same sysrem as the former part. The appendix contains a large number of common forms and iJiecedcnts of pleadings used in the Court of Admiralty, togeiher with hills of costs. Altogether Mr. Coote has done his work very carefully and completely, and we think his labours will be duly appreciated by Admiralty practitioners." — Solicitors' Journal. "The first edition of this excellent work was produced for the purpose of illustrating the practice of the High Court of Admiralty, just then subordinated to the ' Rules of 1859' drawn up by the late distinguished judge. Since then several important changes have been carried out, both in the matter of an extended jurisdiction and of practice. These changes it has been Mr. Coote's object to in- corporate in the present edition of his work. In addition he has increased the utility of his book by a chapter on the practice of the Judicial Committee of the Privy Council in Admiralty Appeals, and by a copious set of Admiralty precedents, in which it is the author's hope and belief that no necessary common fonr. has been omitted. The present edition appears very seasonably." — Shipping and Mercantile Gazette. " Mr. Coote has the great advantage of ex- perience; he has long been a practitioner in the court as a proctor; he is consequently familiar with those minutiae of practice which mark the distinction between the student and the practical man. " Mr. Coote is a successful writer upon the Practice of the Probate and the Admiralty Courts. His book on the former has reached a fifth edition, and the volume before us is a second edition." — Laic Times, -® 10 LAW WORKS PUBLISHED BY -a Hunt's Boundaries, Fences and Foreshores. — Snd Edit. Post Svo., 125. cloth. A TREATISE on the LAW relating to BOUNDARIES and FENCES and to the Rights of Propertj' on the Sea Shore and in the Beds of Public Rivers and other Waters. Second Edition. By Arthur Joseph Hunt, Esq., of the Inner Teraple, Barrister at Law. " It speaks well for this book that it has so snon passed into a .second edition. Uhat its utility has been apiireciated is shown by its success. iMr. Hunt has av;iiled himself of the opportunity of a second edition to note up all the cases to this time, and to extend consider- ably some of the chapters, especially thit which treats of rights of property on the sea shore and the sut'jects of sea walls and commissions of sewers." — La:c Times, " There are few more fertile sources of litiga- tion than those dealt with in Mr. Hunts valu- able book. It is sufficient here to sav that the volume ou?rht to h.ive a larger circulation than ordinarily belongs to law books, that it ought to be found in every country gentleman's library, th.at the cases are brought down to the latest dite, and that it is carefully prepared, clearly written, and well edited." — Laa Magazine. " Mr. Hunt chose a good subject for a sepa- rate treati.se on Boundaries and Fences and Rights to the Seashore, and we are not sur- prised to find that a second edition of his book has been called for. Ihe present edition con- tains much new matter. The chapter especially which treats on rights of property on the seashore, has been greatly e.\tended. Ad- ditions have been also made to the chapters relating to the fencing of the property of mine owners and railway companies. All the cases which have been decided since the work first appeared have been introduced in their proper E lares. Thus it will be seen this new edition as a considerably enhanced value." — Solicitors^ Journal. Ortolan's Roman Law, translated by Prichard & Nasmith. 8vo., 28s. cloth. THE HISTORY of ROMAN LAW, from the Text of Ortolan's Histoire de la Legishttion Romaine et Generalisation du Droit (Edition of 1870). Translated, with the Author's permission, and Supplemented by a Chronometrical Chart of Roman History. By Iltudus T. Prichard, Esq., F.S.S., and David Nasmith, LL.B., Barristers at Law. " We know of no work, which, in our opinion, exhibits so perfect a model of what a text-book ought to be. of the translation before us, it is enough to say, that it is a faithful representation of the original." — Lam Magazine. " Ih's translation, from its great merit, de- serves a warm reception from all who desire to be acquainted with the history and elements of Roman law, or have its interests as a necessary part of sound legal education at heart. W ith re- gard tn that great work it is enough to say, that Knglish writers have been continually in the hibit of doing piecemeal what Messrs. Prichard and Nasmith have done wholesale. Hitherto we have had but gold-dust from the mine; now we are fortunate n obtaininga nugget. Mr. N asmith is already known as the designer of a chart of the history of England, which has been generally approved, and bids fairly for extensive adoption." — Xa;^ Jcurjial. " We are extremely glad to welcome the ap- pearance of a translation of any of the works of M. Ortolan, and the history and generalization of Homan law, which are now presented to us in English, are perhaps the most useful books that could be offered at the present time to stu- dents of the Koman law. The utility of Woman law, as an instrument of legal education, is now generally admitted. The English of the book is unusually free from foreign idiomswhich sooften disfigure translations- The book itself we strongly recommend to all who are interested in Roman law, jurisprudence or bistor>', and who are not sufficiently familiar with French, to be able to read the original with ease." — Soliciton'' Journal. Tomkins' Institutes of Roman Law. Part I. royal Svo. (to be completed in Three Parts) 12.?. cloth. THE INSTITUTES OF THE ROMAN LAW. Part I. The Sources of the Roman Law and its external History to the decline of the Eastern and Western Empires. By Frederick J. Tomkins, M.A., D.C.L., Barrister-at-Law, of Lincoln's Inn. This work promises to be an important and tailing the systems of legal education pursued valuable contribution to the study of the Homan Law." — Lazo Magazine. "Of all the works on the Roman Taw we believe this will be the best suited to law stu- dents. We welcome the book of Mr. Tom- kins. It is calculated to pronjote the study of Roman Law ; and both at the L niversities and in the Inns of Court it is a work which may safely and beneficially be employed as a text book." — l^aw Times, " This work is pronounced by its author to be ftrictly elementary. But in regard to the labour bestowed, the research exercised, an'f the ma- terials brought together, it seems to deserve a more ambitious title than that of an elementary treatise. The charter on legal instruction, de- in the various epochs of Rome, reflects great credit on the author, and so far as we know is purely original." — Law Journal. " We know of no other book in which anything like the same amount of information can be ac- quired with the same ease. If the second part is as well executed as the first and bears a due proportion to it, we think the work bids fair to become the standard text book for English students." — ■Solicitors' Journal. " The study of this volume is necessary to all who wish to be properly acquainted with the history and literature of the Koman law."— Irish Law Times. " Mr. Tomkins has produced a book that was long r:ceded.— Zaa Eicmir.a'ion Bepcrter ©— MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 11 -S> Saunders' Law of Negligence. 1 vol., post 8vo., 9s. cloth. A TREATISE on the LAW applicable to NEGLIGENCE. By Thomas W, Saunders, Esq., Barrister at Law, Recorder of Bath. " The book is admirable ; while small ia bulk, it contains everything that is netesiary, and its arrangement is such that cue can readily refei to it. Amongst those who have done good service, Mr. Saunders will find a place." — Law Magaune. " In the useful liitle volume now before us he has gathered the whole law of negligence. All his works are distinguislied by paiusiaking and accuracy. This one is no exception ; and the subject, which is of very extensive interest, will insure for it a cordial welcome from the profi-ssiou.'' — Law Times. "The references to the cases are given much more fully, and on a more rational system than is common with text book writers. He has a good index; he has produced a work which will facilitate reference to the authori- ties." — Solicitors' Journal. " As a work of reference tlie book will be very welcome in llie office of the solicitor or in the chambers of the barrister." — Morning Advertiser. " A short and clear treatise like the present on the law relating to the subjeit ouslit to oe welcomed. It is a moderate size volume, and makes references to all tiie authorities on the' question easy." — Standard. " It is a ereat advantage to the Ifg-il pro- fession to find all the law of negligence col- lected and arranged in a manual of reasonable size. Such is Mr. Saunders' book." — Public Opinion " A serviceable and seasona'le treatise on the law of negligence, by Thomas W. Sauudeis, Esq., Recorder of Bath." — Telegraph. " A Careful treatise ou a brancli o^ law wiiicli is daily acquiring importance. The manual before us is a useful treatise." — Echo. Ingram's Law of Compensation.— 2nd Edit, by Elmes. Post 8vo., 12s. cloth. COMPENSATION to LAND and HOUSE OWNERS: being a Treatise on the Law of the Compensation for Interests in Lands, &c. payahle by Railway and other Public Companies ; with an Appendix of Forms and Statutes. By Thomas Dunbar Ingram, of Lincoln's Inn, Esq., Barrister at Law. Second Edition. By J. J. Elmes, of the Inner Temple, Esq., Barrister at Law. " We Say at once that it is a work of great merit. It is a concise, c lear and complete ex- position ot the law of compensation applicable to the owners of real property and railway and other companies." — Law Magazine. " Whether for companies taking laud or hold- ing it, Mr Ingiam's volume will be a welcome guide. With tills in his hand the legal adviser of a company, or ot au owner and occupier whose property is taken, and who demands compen- sation for it, cannot fail to perform his duty iigiitly." — Law Times. " iliis work appears to be carefully prfpared as regards its matter. This edition is a thinl larger than the fiist ; it contains twice as many cases, and an enlarged index- It was much called for, and doubtless will be found very useful t'l the practitioner." — Law Magazine, second nAice. Cutler's Law of Naturalization. 12mo., Zs. Grf cloth. THE LAW of NATURALIZATION; as Amended by the Acts of 1870. By John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Editor of " Powell's Law of Evidence," &c. " Theauthir'spositiou as Professor of English foreigners resident in this country." — Public Law and Jurisprudence is a guarantee of his legal competence, whilst his literary abilities have enabled him to clothe his legal knowledge ill languai;e which laymen can understand with- out being misled by it." — John Hull. " Mr. Cutler, in the work before us, lucidly explains the state of the law previous to tlie recent statute, and shows the alterations pro- duced by it', so that a careful perusal of this bonk will enable the reader fully to comprehend the pnseiit stale of the law upon ti is most im- portant subject.' — Justice oj' the Peace. " This little work will be found of use to our countrymen resident abroad, as well as to Opinion. •' The book is a model of what a treatise of its kind should he."--Sun Journnl. — o 14 LAW WORKS PUBLISHED BY Bedford's Intermediate Examination Guide. 8vo., 10s. 6d. cloth. The INTERMEDIATE EXAMINATION GUIDE: containinjr a Digest of the Examination Questions on Common Law, Conveyancing and Equily, with the Answers. By Edward Henslowe Bedford, Solicitor, Temple, Editor of the " Preliminary," " Intermediate" and " Final," &c. "The students of the elements of law will ford's Intermediate Examination Guide will find in Mr. Bedford's Guide a useful and re- prove very useful to candidates for the Law Jiable friend." — Laic Times. Institution." — Laic Journal. " We think we may fairly say that Mr. Bed- Heales's History and Law of Pews. 2 vols. 8vo., IGs. cloth. The HISTORY and LAW of CHURCH SEATS or PEWS. By Alfred Heales, F.S.A., Proctor in Doctors' Commons. " Great pains have evidently been taken in engaged in suits appertaining to the pew ques- the compilation of this work, which exhibits tion. Altogether we can commend Mr. Heales' throughout an immense amount of research book as a well-conceived and well-executed and a careful arrangement of cases and ex- work, which is evidence of the author's in- tracts." — Lair ilagazine. dustry, talent and learning." — Late Journal. "The work deserves a place in all public "There can be no doubt but that great labour libraries, and doubtless many practitioners, and research have been expended in the pro- especially those whose law learning has any duction of this work. The author has devoted antiquarian proclivities, will be glad to pos great care and perspicacity to the treatment sess it. For original research and faithful of his subject, to the student and the archse- labour in verifying references no other writer ologist there is much in these volumes of can lay any claim to come anywhere near great interest, and clergymen will find them a Mr. Heales. The author deserves particular uselul and reliable guide should questions comniendation for the conscientious labour arise connected with sittings in their respec- ■with which he has traced up all his autho- live churches." — Justice of t/ie Peace. rities." — Solicitors' Journal. " The subject is one very ably treated by " The historical volume will be most interest- Mr. Heales . We have gone through the second ing to the general reader, but the volume de- part, namely, that devoted to law, and lind that voted to the law of the subject will be of great it is admirable. The arrangement is good and use to all persons — the clergy and churchwar- the style clear. To the work are appended a dens — who have anything to do with the admi- list of cases and a good index. The book nistration of church afi'airs. It will also be possesses amply sufiicient merit to reach a found a valuable text-book by lawyers who are second edition in a short time." — Law Times. Clifford and Stephens's Practice of Referees Court, 1871. Vol. 1. and Vol. II. Part I., roval 8vo., 38s. cloth. THE PRACTICE of the COURT of REFEREES on PRI- VATE BILLS in PARLIAMENT, with Reports of Cases as to the locus standi of Petitioners during the Sessions 1867-8-9 and 70. By Frederick Clifford and Pembroke S. Stephens, Barristers-at-Law. "The history and practice of the subject are part of the volume, are given with fulness and detailed tersely and accurately, and in a very accuracy, so lar as we can judge, and are of intelligible manner, in the treatise. To counsel themselves a sufficient recommendation to the or agents engaged in parliamentary practice volume." — Laic Journal. the work will prove extremely serviceable." — "Clifford and Stephens, the authority now Solicitors' Journal. universally quoted and relied on in this "The reports, forming the most important (Referees) Court." — Daili/ A'ews. Vol. II. Part I., containing the Cashes decided during the Session 1870, may be had separately, IO5. sewed. Starkie's Law of Slander and Libel.— 3rd Edition. One thick vol. medium 8vo., 42«. cloth. STARKIE'S TREATISE on the LAW of SLANDER and LIBEL ; including MALICIOUS PROSECUTIONS, CONTEMPTS of COURT, &c. ; also the Pleading and Evidence, Civil and Criminal, with Forms and Precedents. Third Edition. By H.C.Folkard, Barrister-at-Law. " No one will fail to see that there were a tieatise should have been re edited, and it is ample reasons for a new edition of this valu- well that it should have been edited by so able work; and upon reference to this edition careful and painstaking a man as Mr. Folkard." it will be found that Mr. Folkard has performed ~Laa) Magazine. his task carefully and well. It is well that such «- ©- MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 15 Seaborne's Law of Vendors and Purchasers. Post 8vo., 9s. cloth. A CONCISE MANUAL of the LAW of VENDORS PURCHASERS of REAL PROPERTY. By Henry Seaborne. and *«* This woflc is (leskjned to furnish Practitioners with an easij means of inference to the Statutory Enactments and Judicial Decisions regulating tlie transfer of Real Property, and also to bring these authorities in a compendious shape under the attention of Students. " The value of Mr Seaborne's work consists in its beinu the most concise summary yet pub- lished of one of the most important branches of the law. The student will find this book a useful introduction to a dry and difficult subject." — Lau* Examination Jonrnal. " Intended to furnish a ready means of access to the enactnjents and decisions governing that branch of the law."— J'Ae Times. "The book before us contains a good deal, es- pecially of practical information as to the course of coDveyaacing matters in solicitors' offices. which may be useful to students." — Solicitors^ Journal. " We will do Mr. Seaborne the justice to say that we believe his work will be of some use to articled clerks and others in solicitors' offices, who have not the opportunity or inclination to refer to the standard works from v;hich his is compiled." — Lau) Journal. " 1 he book will be found of use to the legal practitioner, inasmuch as it will, so far as regards established points of law, be a handier woric of reference than the longer treatises we have named."— Athe/neum. -o Clark's Digest of House of Lords Cases. Royal 8vo., 31s. 6d. cloth. A DIGESTED INDEX to all the REPORTS m the HOUSE of LORDS from the commencement of the Series by Dow, in 1814, to the end of the Eleven Volumes of House of Lords Cases, with references to more recent Decisions. By Charles Clark, of the Middle Temple, Esq., Barrister at Law, Reporter by Appointment to the House of Lords. Barry's Practice of Conveyancing. 8vo., 18i-. cloth. A TREATISE on the PRACTICE of CONVEYANCING. By W. Whittaker Barry, Esq., of Lincoln's Inn, Barrister at Law, late Holder of the Studentship of the Inns of Court, and Author of " A Treatise on the Statutory Jurisdiction of the Court of Chancery." Chap. 1. Abstracts of Title. — Chai-. 2. Agreements. — Chap. 3. Particulars and Conditions of Sale. — Chap. 4. Copyholds. — Chap. 5. Covenants. — Chap. 6. Creditors' Deeds and Arrange- ments. — Chap. 7. Preparation of Deeds. — Chap. 8. On Evidence. — Chap. 9. Leases. — Chap. 10. Mortgages. — Chap. 11. Paitnership Deeds and Arrangements. — Chap. 12. Sales and Pur- chases. — Chap. 13. Settlements.— Chap. 14. Wills. — Chap. 13. The Land Registry Act, 25 & 26 Vict. c. 53. — Chap. 16. The Act for obtaiiung a Declaration of Title, 25 & 26 Vict. c. 67. — Index. in which the theoretical rules of real property law are referred to only for the purpose of eluci- dating the practice. Mr. Barry appears to have a very accurate insight into the practice in every department of ourreal jiropertysystem. Although we cannot boast, like Duval, of having ever read abstracts of title with pleasure, we have certainly read Wr. Barry's chapter on abstracts and nu- merous other parts of his work with very con- siderable satisfaction on account of the learning, great familiarity with jiractice, and power of ex- position of its author, the treatise, although capable of compression, is the production of a per- son of great merit and still greater promise." — Solicilu's' Jcnrnnl. " rhe Author's design was to do for the prac- tice of conveyancing what Mr. Joshua Williams has done for its principles, to describe it simply, clearly and succinctly, recollecting that he was only laying the foundation and not crowning the edifice. A work the substance of which is so well known to our readers, needs no recom- mendation from us, for its merits are patent to all. from personal acquaintance with them. The information that the treatise so much admired may now be had in the more convenient form of a book, will suffice of itself to secure a large and eager demand for \\.."—l.nw Times. " The author of this valuable treatise on con- veyancing hasmost wisely devoted a considerable part of his work to the practical illustration of the working of the recent Statutes on Kegistration of Title — and for this, as well as for other rea- sons, we feel bound to strongly recommend it to the practitioner as well as the student. J'he author has proved himself to be a master of the subject, for he not only gives a most valuable supi)ly of practical sugge.stions, but criticii^es them with much ability, and we have no doubt that his criticism will meet with general ap- pioval." — Law Magazine. "the author introduces a work which will be found a very acceptable addition to the law library, 'nd to supply a want which we think has hitherto been felt. It contains, in a concise and readable form, the law relating to almost every i)oint likely to arise in the ordinary every day practice of the conveyancer, with rLferences to the various authorities and statutes to the latest date, and may be described as a manual of practical conveyancing." — J^aw Juurnal. " This treatise supplies a want which has long been felt. 'I'here has been no treatise on he Practice of Conveyancing issued for a long time past that is adequate for the present requirements, ftl r. Barry's work is essentially what it professes to be, a treatise on the Practice of Conveyancing, 9- Hunter's Suit in Equity.— Fifth Edition. I'ost 8vo., 10s. (>d. clotli. AN ELEMENTARY VIEW of the PROCEEDINGS in a SUIT in EQUITY. With an Appendix of Forms. By Sylvester J. Hunter, 13. A., of Lincoln's Inn, Barrister at Law. Fifth Edition. By G. W. Lawrance, M.A., of Lincoln's Inn, Barrister at Law. " ' Hunter's Suit in Equity' is an excellent us, for its standard merit is too well known to book for students. It is really an indispen- require commendation." — Late Journal. sable for the chancery part of the lawyer's education. It is a great excellence of this work, that while making everything clear and giving substantially sutiicient information, its writers have been able to strike the happy mean between too great compression and em- barrassing exuberance of detail." — SoUcitois' Journal. " We presume that the continued demand for a volume of so essential utility to students of equity, rather than the necessary incorpo- ration of any new matter, has occasioned the publication of a new edition. The alterations and additions to chancery practice and proce- dure which have been made during the last three years by statute and by general orders of the court are embodied in their proper places in the present edition. In other respects we need pass no encomiums on the work before Lewis's Introduction to Equity Drafting. PRINCIPLES of EQUITY DRAFTING; with an Appendix of Forms. By Hubert Lewis, B.A., of the Middle Temple, Barrister at Law ; Author of " Principles of Conveyancing," &c. *«* This Work, intended to explain the general principles of Equity Drafting, as well as to exemplily the Pleadings of the Court of Chancery, will, it is hoped, be useful to lawyers resorting to the A'eir E'liiity Jurisdiction of the County Courts. We haveliltle douht th:it this work will soon any title, be retained in the new jurisdiction,- " Changes have compelled the recasting of a considerable portion of Mr. Hunter's excellent outline of the proceedings in a suit in equity, which has become a text-book with the law student. This work has been well dune by Mr. Lawrance, who has strictly preserved the scheme of the original sketch, while adapting it to the various changes that have been made. All former editions must be at once exchanged for this one." — Law Times. " As an excellent introduction to the study of chancery practice the book has established its position, and we think the editor has done wisely in merely introducing such amend- ments as the alteration in the law by statutes and orders requires, and abstaining from any attem])! to make it a manual of practice." — Law Magazine. gain a favorable place in the estimation of the Drofession. It is written in a clear attractive style, and is plainly the result of much thoughtful and couscieniious labour." — La-x Magazine and Kiiievi. " Mr. Lewis's work is likely to have a much wider circle of readers than he could have anticipated when he commenced it, for almost every page will be applicable to County Court Practice, should the bill, in any shape or under without it we fear that equity in the County Courts will be a mass of uncertainty, — ^^with it every practitioner must learn the an of equity drafting, and he will find no better teacher than Mr. Lewis " — Law Times. " I his will, we think, be found a very useful work, not only to students for the bar and solicitors practising in the County Courts, as anticipated by the author, but also to the equity draftsman." — Law Journal, Lewis's Introduction to Conveyancing. 8vo., \8s. cloth. PRINCIPLES of CONVEYANCING explained and illus- trated bj' Concise Precedents ; with an Appendix on the effect of the Trans- fer of Land Act in modifying and shortening Conveyances. By Hubert Lewis, B.A., late Scholar of Emmanuel College, Cambridge, of the Middle Temple, Barrister at Law. The preface arrested our atlL'ntion, and the examination we have made of the uhole treatise has givtn us (what may be called n new sensation) pleasure in the iierustl of a work on Convey- ancing. We have, indeed, read it with pleasure and profit, and we may say at once that Mr. 1 ewis is entitled to the credit of having produced a very useful, and, at the same time, original work. 'Ibis will ai)peari'rom a mere outline of his plan, which is very ably worked out. the manner in which his dissertations elucidate his subject is clear and practical, and his expositions, with the help of his precedents, have the best of all qualities in such a treatise, being eminently ju- dicious and substantial. Mr. Lewis's work is conceived in the rit'ht spirit. Although a learned and goodly volume, it may yet. with perfect propriety, be called a 'handy book.' It is besides a courageous attempt at legal improve mcnt; and it is, perhaps, by works of such a character that law reform mav be best accom- plished." — Lnzo Magazine and Review. "It was still fell that a work exiilanatory and illustrative of conveyancing precedents remained 3i desideratum. Mr. Lewis proposes to supply this want in the work now before us I'he book will be of the greatest use to those who have some an- tecedent knowledge of real property law, but who have not had much experience in the preparation of conveyances. ' How to do it' might well be the motto of the author, and certainly no ordi- nary lawyercau peruse Mr. Hubert Lewis's book without making himself much more competent to prei)are and understand conveyancing than he was before. On the whole we consider that the work is deserving of high praise, both for design and execution. It is wholly free from the vice of book making, and indicates considerable re- flection and learning. Mr. Lewis has, at all events, succeeded in producing a work to meet an acknowledged want, and we have no doubt he will find many grateful readers amongst more advanced, not less than among younger, students. In an appendix, devoted to the Land Transfer Act of last session there are some useful and novel criticisms on its provisions." — Holiciiors' Journal, MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 17 -a Kerr's Action at Law. — Third Edition. 12mo., 9s. cloth. AN ACTION AT LAW : being an Outline of the Jurisdiction of the Superior Courts of Common Law, with an Elementary View of the Proceedings in Actions therein. By Robert Malcolm Kerr, Barrister at Law ; now Judge of the Sheriff's Court of the City of London. Third Edition. " There is considerable merit in both works (John William Smith'sanil Malcolm Kerr's); but the second (Kerr) has rather the advantage." — Jurist. "Mr. Kerr's book is more full and detailed than that of ftfr. John William Smith, and is therefore better adapted for those who desire to obtain not merely a general notion but also a practical ac- quaintance with Common Law Procedure" — &ilicitors' Journal, Tudor's Leading Cases on Real Property, &c.— 2nd Edit. One thick vol. royal 8vo., i2s. clotli. A SELECTION OF LEADING CASES on the LAW RELATING to REAL PROPERTY, Conveyancing, and the Construc- tion of Wills and Deeds; with Notes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister at Law. Author of *' A Selection of Lead- ing Cases in Equity." Second Edition. " The Second EJition is now before us, and law itself applioalile to the cases discussed by we are able to say that tlie same extensive knowledge and the tame laborious industry as have been exhibited by Mr. Tudor on former occasions dial acterize this later production of his legal authorship; and it is eiioush at this moment to reiterate an opioiou that Mr, Tudor has well maintaiued the high legal reputation which his standard works have achieved in all countries where the Englisli language is spoken, and the decisions of our Courts are quoted." — JLaze Magazine and Review. " The work before us comprises a digest of decisions which, if not exhaustive of all the principles of our real property code, will at least be found to leave nothing untouched or unelaborated under the numerous legal doc- triues to wliich the i ases severally relate. To Mr. Tudoi's treatment of all these subjects, so complicated and so varied, we accord our entire commendrttion. There are no omissious of any important cases relative to the various branches of the law compiised in the work, nor are there any omissious or defects lu his statt raeut of the him. We cordially recommend the work to tlie practitioner and the student alike, but espe- cially to the farmer." — So/iciton' Journal. " This and the other volumes of Mr. Tudor are almost a law library in liiemselves, and we are satisfied that the student would learn more law from the careful reading of them than he would acquire from double the time given to tlie elaborate treatises which learned profess'irs recommend the student to peruse, with entire forgetfulness that time and brains are limited, and that to do what they advise would be the work of a life. .Smith and Mr Tudor will to- gether give them such a knowledge of law as they could not obtain fmm a whole library of text books, and of law that will be useful every day, instead of law that they will not want three times in their lives. At this well the practising lawyer might beneficially refresh his memory by a draught, when a leisure hour will permit him to study a leading case. No law library should be without this most useful book." — Law Times, Benham's Student's Examination Guide. 12mo. S.y. cloth. THE STUDENT'S GUIDE to the PRELIMINARY EXA- MINATION for ATTORNEYS and SOLICITORS, and also to the Oxford and Cambridge Local Examinations and the College of Preceptors; to which are added numerous Suggestions and Examination Questions, selected from those asked at the Law Institution. By James Erle Benham, of King's College, London. "The book is artistically arranged. It will become a useful guide and instructor not only to law students but to every student who is preparing lor a prelimiuary examination." — Law Journal. " The book is writtf u in a clear and agreeable style, and will no doubt be found useful by the class of readers for whom it is intended."^ Late Magazine and Review. " Mr. Benham lias produced a very useful manual. He gives many suggestions on all the subjects of examination and full information tiiereou " — Law Examinnlion Reporter. " He has succeeded in ptoducing a book which will doubtless prove useful, i he set* of examination papers appear lu be judiciously selected and are tolerably full." — Iriih Laa Times. 9- c- 18 LAW WORKS PUBLISHED BY Tomkins and Jencken's Modem Roman Law. 8vo., 144-. cloth. COMPENDIUM of the MODERN ROMAN LAW. Founded upon tlie Treatises of Puchta, Von Vangerow, Arndts, Franz Mceliler and the Corpus Juris Civilis. By Frederick J. Tomkins, Esq., M.A., D.C.L., Author of the " Institutes of Roman Law," Translator of " Gaius," &c., and Henry Diedrich Jencken, Esq., Barristers at Law, of Lincoln's Inn. " Mr. Tomkins and Mr. Jencken could not liave written such an excellent book as this if they liad not devoted many laborious days, probably years, to the study of Roman Law in its entirety, and to research into the laws of continental states, for the purpo.^e of learning what i)rinciples of Roman Law are preserved in their jurisprudence." — Laic Tim^s. '• To those who think with us that the study of the modern civil law has been too much neglected in the education of solicitors, the ad- mirable book whose title we have above an- nounced will be indeed invaluable." — Law Examinalion Journal. "They have unquestionably given us a most valuable contribution on the literature of Roman Law, and one which ought to rapidly work its way to public favor." — Korth Britsh Mail. " We cordially wish success to a book which from the care bestowed upon it by two expe- rienced authors can scarcely fail, we should hope, to take a respectable place among the educational works on Roman Law, which seem likely to form a special feature among the legal publications ofthe present epoch.'' — Athena'uin, " A valuable contribution to a kind of litera- ture which English jurists are only now begin- ning to value at its true worth. Ur. Tomkins and his fellow-worker, Mr. H. D. Jencken, have bestowed much labour on their task." — Echo. '•Their work is well arranged and clearly written, and presents in an agreeable and read- able form the principles ofthe great system of Roman Civil Law. It is admirably adapted for the use of students, while the copious references which it contains to the writings of the great civilians upon whose works it is based render It a valuable text-book for the more advanced practitioner."— /rwA Law Times. Latham's Law of Window Lights. Post Svc, 10s. cloth. A TREATISE on the LAW of WINDOW LIGHTS. Francis Law Latham, ofthe Inner Temple, Esq., Barrister at Law. By "This is not merely a valuable addition to the law library of the practitioner, it is a book tliat every law student will read with profit. It exhausts the subject of which it treats." — Law Times. " His arrangement is logical, and he dis- cusses fully each point of his subject. The work, in our opinion, is both perspicuous and able, and we cannot but compliment the author on it " — Law Journal. " A treatise on this subject was wanted, and Mr. Latham has succeeded in meeting that want." — Athenaum. " Mr. Latham is evidently one of those authors who like to have a complete skeleton of tlieir subject elaborated before putting pen to paper; and the consequence is, that this little work is one which we have much plea- sure in recommending to the profession. The sequence of discussion is well ordered, and the author's plan well adhered to; and although the text comprises less than 250 octavo pages, the subject is quite exhaustively treated. To solicitors the volume will, we think, be par- ticularly serviceable. Armed with the work we have now reviewed, the prjrctitioner will be in a fair way to cope successfully with the most exigent client who comes to consult him about his windows." — Solicitors' Journal. " This subject has acquired a general com- mercial interest, and a clear concise work upon it is, at this time, very opportune. Mr. Latham's treatise on the Law of Window Lights appears to supply in a convenient form all the information which, in a general way, may be required. The text throughout is lucid and is well supported by precedents." — Suilding News. " Mr. Latham has done well in providing a new treatise on the subject, and setting forth some of the more recent decisions of our courts. It is well arranged and clearly written. We recommend the book." — Builder, Tudor's Law of Charitable Trusts. — Second Edition. Post 8vo., 1S«. cloth. THE LAW OF CHARITABLE TRUSTS ; with the Statutes to the end of Session 1870, the Orders, Regulations and Instructions, issued pursuant thereto ; and a Selection of Schemes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister-at-Law; Author of" Leading Cases in Equity;" " Real Property and Conveyancing;" &c. Second Edition. " No living writer is more capable than compiled." — Solicitors' Journal. Mr. Tudor of producing such a work: his "Mr. Tudor's excellent little book on Cha- Leading Cases in Equity, and also on the ritable Trusts. It is in all respects the text- Law of Real Property, have deservedly earned for him the highest reputation as a learned, careful and judicious text-writer. We have only to add that the index is very carefully book for the lawyer, as well as a hand-book for reference by trustees and others engaged in the management of charities." — Law Times. &— <^ MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 19 -a Gaius's Roman Law, by Tomkins and Lemon. Complete in 1 vol. Svo., 27s. cloth extra. {Dedicated by 2}ermission to Lord Chancellor Hatherlcy J) THE COMMENTARIES OF GAIUS ON THE ROMAN LAW : with an English Translation and Annotations. By Fredekick J. Tomkins, Esq., M.A., D.C.L., and William George Lemon, Esq., LL.B. Barristers at Law, of Lincoln's Inn. "We congratulate the authors on the pro- duction of a work creditable alike in its in- ception and its progress. The translation is on the whole satisfactory: the annotations are often valuable and compiled from trustworthy sources." — Law Journal. " They have done a good service to the study of Roman Law, and deserve the thanks of those who take an interest in legal literature." — Solicitors' Journal. " After a careful perusal of the present work, we feel bound to speak in the higliest terms of the manner in which Mr. Tomkins and Mr. Lemon have executed tlieir task. We have no hesitation in pronouncing the work to be a most valuable contribution to juristical learning, and we unhesitatingly recommend its careful perusal to all students of Roman Law." — Law Magazine. "The translation is carefully executed, and the annotations show extensive knowledge of the Roman Law." — Atlienmum. " The book Is in every respect one of the most valuable contributions, from an Eng- lish source, to our legal literature which tlie last half century has witnessed." — Edinburgh Eiening Courant. "The want of an edition of the Commen- taries of Gains for English students has now been supplied by Dr. Tomkins and Mr. Lemon in a manner which leaves nothing to be de- sired. The translation of the Latin text is excellent; and the notes, upon which tlie value of the work mainly depends, are full of the most ample learning upon the matter of the text." — Irish Law Times. " This is the first time that the text of Gains has been translated into English, and it is remarkably well done by Messrs. Tomkins and Lemon in tlie part before us, who have also enriched the text by many valuable notes." — Law Examination Reporter. Phillimore's Commentaries on International Law. COMMENTARIES on INTERNATIONAL LAW. By the Right Hon. Sir Robert Phillimore, Knt., now Judge of the High Court of Admiralty of England. *«* Vol. 1, second edition, price 25s., Vol. 2, second edition, price 28«., Vol. 4, price 30s., may be had separately to complete sets. Vol. 3 is out of print. Extract from Pamphlet on "American Neutrality," by George Bemis {Boston, t/.iS.).— " Sir Robert Phillimore, the present Queen's Advocate, and author of the most comprehensive and systematic ' Commentary on International Law ' that England has produced." heres to the canons of legal authorship, and never gives a statement without an autliorlty or otfers a conclusion which is not manifestly deducible from established facts or authorita- tive utterances, yet so lucid is bis style, we liad almost said so popular, so clear is the enunci- ation of principles, so graphic the historical portions, that the book maybe read with plea- sure as well as profit. It will not be out of place to further remark, that the arrangement is excellent, the table of contents, the list of autliorities are complete, and, therefore, tliese Commentaries are singularly handy for refer- ence. Altogether this work is a witness to the zeal, industry and ability of Sir R. Phillimore. It will not only be read at home, but also in the United States, and it cannot fail to smooth the way for the thorough international understand- ing between England and America that the true men of both countries so ardently desire." — Law Journal. "The authority of this vfork is admittedly great, and the learning and ability displayed in its preparation have been recognized by writers on public law both on the Continent of Europe and in the United States. With this necessarily imperfect sketch we must conclude our notice of the first volume of a work which forms an important contribution to the litera- ture of public law. The book is of great utility, and one which should find a place in the library of every civilian." — Law Magaziue. " We cordially welcome a new edition of vol. 1. It is a work that ought to be studied by every educated man, and which is of con- stant use to the public writer and statesman. We wish, indeed, that our public writers would read it more abundantly tlian they have done, as they would then avoid serious errors in dis- cussing foreign questions. Any general ciiti- cism of a book which has been received as a standard work would be superfluous; t)ut we may remark, that whilst Sir Robert strictly ad- ©- Gr 20 LAW WORKS PUBLISHED BY Christie's Crabb's Conveyancing. — Fifth Edit, by Shelford. Two vols, royal 8vo., 3/. cloth. CRABB'S COMPLETE SERIES of PRECEDENTS in CONVEYANCING and of COMMON and COMMERCIAL FORMS in Alpliabetical Order, adapted to the Present State of the Law and the Practice of Conveyancing ; with copious Prefaces, Observations and Notes on the several Deeds. By J. T. Christie, Esq., Barrister-at-Law. The Fifth Edition, with numerous Corrections and Additions, by Leonard Shelfokd, Esq., of the Middle Temple, Barrister-at-Law. *»* This Wofk, which embraces both the Principles and Practice of Conveyancing, contains likewise every description of Instrument icaiited for Commercial Purposes. General Table of Heads of Prefaces and Forms. Abstracts.^ Accounts. — Acknowledgments. — Acquittances. — Admittances. — Affidavits, Affir- mations or Declarations. — Agreements: to relinquish Business: to Guarantee: for a Lease: before Marriage : for a Partition: between Principal and Agent: for the Sale and Purchase of Estates: for Sale of Copyhold Estates: for Sale of Leaseholds: for Sale of an Advowson. — Annuity: secured on Copyholds. — Annuities: Assigments of. — Appoint- ments: of Guardians. — Apportionment. — Apprenticeship: to the Sea Service: to an Attorney : Assignment of. — Arbitration : Award.- — Assignments : Bonds : Leases : Patents : Pews : Policies of Insurance : Reversionary Interests. — Attestations. — Attornments. — Auctions : Particulars of Sale. — Bargains and Sales : of Timber. — Bills of Sale of Goods. — Bonds: Administration: Receiver pending Suit: Post Obit: Stamps on. — Certificates. — Composition: Conveyances in Trust for Creditors. — Conditions: of Sale. — Confirmations. — Consents. — Copartnership: Dissolution of Copartnership. — -Covenants: Stamps on: for Production of Title Deeds. — Declarations. — Deeds: I. Nature of Deeds in General: II. Requisites of a Deed: III. Formal parts of Deeds: IV. Where a Deed is necessary or otherwise: V. Construction of Deeds: VI. Avoiding of Deeds: VII. Proof of Deeds: VIII. Admission of Parol Evidence as to Deeds: IX. Possession of Deeds : X. Stamp Duty on Deeds. — Defeasances. — Demises — Deputation. — Disclaimers. — Disentailing Deeds. — Distress : Notices of. — Dower. — Enfranchisements. — Exchanges — Feoffments. — Further Charges. — Gifts.— Grants. — Grants of Way or Road. — Indemnities. — Leases : f. Nature of Leases in General: II. Requisites to a Lease: III. Parts of a Lease: IV. Incidents to a Lease : V. Stamps on Leases. — Letters of Credit. — Licences. — Mortgages: of Copyholds: of Leaseholds: Transfer of; Stamp Duty on. — Notes, Orders, Warrants, &c. — Notices: to Quit. — Partition. — Powers: of Attorney. — Presentation. — Purchase Deeds: Conveyance of Copyholds: Assignments of Leaseholds: Stamps on. — Recitals. — Releases or Conveyances: or Discharges. — Renunciations or Disclaimers. — Resignations. — Revocations. — Separation. — Settlements: Stamp Duty on. — Shipping: Bills of Lading: Bills of Sale: Bottomry and Respondentia Bonds : Charter Parties. — Surrenders. — Wills: 1. Definition of Will and Codicil : 2. To what Wills the Act 7 Will. 4 & I Vict. c. 26 does not apply: 3. What may be disposed of by Will : 4. Of the capacity of Persons to make Wills : 5. Who may or may not be Devisees ; 6. Execution of Wills : 7. Publication of Wills: 8. Revocation of Wills : 9. Lapse of Devises and Bequests : 10. Provisions and Clauses in Wills: 11. Construction of Wills. From the Law Times. " The preparation of it could not have been con- fided to more able hands than those of Mr. Shel- tord.the veteran authority on real property law. With the industry that distinguishes hiai he has done ample justice to his task. In carefulness we have in him a second Crabb, in erudition Crabb's superior ; and the result is a work of which the orii,'inal author would have been jiroud, could it have appeared under his own ausjiices. It is not a book to be qu ted, norindeed could its merits be exhibited by quotation. It is essentially abook ol iiractice, which can only be described in rude out- line and dismissed with applause, and a recom- mendation of it to the notice of those for whose service it has beeu so laboriously compiled." From the Solicitors' Journal. " The collection of precedentscontained in these two volumes are all that could be desired. Ihey are particularly well adapted for Solicitors, being of a really practical character. They are more- over free from the useless repetitions of common forms that so muchincrease the bulk and expense of some collectioiis that we could name. We know not of any collection of conveyancing precedents that would make it so possible for a tyro to put together a presentable draft at an exisjenc.v, or which are more handy in every respect, even for the experienced draftsman. Mr. Shelford has proved himself in this task to be not uuworlhy of his former reputation, lo those familiar with his other works it will be a sufficient recommendatioa of this." From the Law Magazine and Review. " 1 this important part of his duty— the reino- delling and perfecting of the Forms— even with the examination which we ha^ e already been able to afford this work, we are able to affirm, that the learned editor has been eminently successful and effected valuable improvements." From the Law Chronicle. " It possessesone distinctive feature in devoting more attention than usual in such works to forms of a commercial nature V> e are satisfied from anexaminationof the present with the immediately preceding edition that -Mr. Shelford has very con- siderably improved the character of the work, both in the prefaces and in the forms. Cn the whole the two volumes of Crabb's I'recedents, as edited by Mr. Leonard shelford. will be found extremely useful in a solicitor's office, presenting a large amount of real property learning, with very numerous precedents: indeed we know of no book soiustly entitled totde appellation of ' handy' as the fifth edition of Mr. Crabb's Precedents." 9 — — (5 MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 21 Mosely's Articled Clerks' Handy-Book. 12mo., 7s. cloth. A PRACTICAL HANDY-BOOK of ELEMENTARY LAW, designed for the use of Articled Clerks, with a Course of Study and Hints on Reading for the Intermediate and Final Examinations. By M. S. Mosely, Solicitor, Clifford's Inn Prizeman, M. T. 1867. " This useful little book is intended for the use " There are few who read this book with care of articled clerks during the jieriod of their arti- who will not readily admit that on many intricate cles. i'lie style of this book is peculiar: it is an points of law their notions have become much exaggerationof the style adopted by Mr. Ilaynes clearer than before their acquaintance with it. in his admirable 'outlines of Equity.' J'he Both parts are well worked out, and will be found author seenjs to think the adoption of such a useful; but in the second division of each chap- style the only way to make the study of the law ter the law student will find most valuable in- popular, and we are not prepared to say he is formation, as there Wr. Mosely not only marks wrong."— Za-ii Magmitie and Review. out the course of reading which he recommends ' i he design ot this little book is to combine for each year, but also carefully analyses the instruction, advice and amusement, if anything contents of each book, and points out those amusing can be extracted from the routine of a chapters and subjects which it will be most ad- solicitor'sofficeand the studies of articled clerks. vantageous for the student to master at the first 'ihe hook will cenainly be found useful by any reading, and those which he ought to defer till articled clerk, for it contains much information a second perusiil and a wider experience have which it is sometimes very troublesome to find, made him more competent to understand them, and the facetiousness of Mr. Mosely's manner 'The style is remarkably good, and, considering will doubtless help to grease the course of a the sutiject, free from technical expressions." — rough and uneasy subject." — Lav> Journal. Irish Law Tintes. Rouse's Copyhold Manual. — Third Edition. Vlmo., 10s. Qd. cloth. THE COPYHOLD ENFRANCHISEMENT MANUAL, giving the Law, Practice and Forms in Enfranchisements at Common Law and under Statute, and in Commutations ; with the Values of Enfranchise- ments from the Lord's various Rights : the Principles of Calculation being clearly explained, and made practical by numerous Rules, Tables and Examples. Also all the Copyhold Acts, and several other Statutes and Notes. Third Edition. By Rolla Rouse, Esq., of the Middle Temple, Barrister at Law, Author of " The Practical Conveyancer," &c. " This new edition follows the plan of its pre- world will greet with pleasure a new and im- decessor, adopting a fivefold division :—l. The proved edition of his copyhold manual. Ihe JLaw. 2. 'ihe Practice, with Practical Sugges- third edition of that work is before us. It is a tions to I-ords, Stewards and Copyholders. ,'J. work of great practical value, suitable to lawyers 'Ihe Mathematical consideration of the .Subject and laymen. We can freely and heartily recom- in all its Details, with Rules, i'ables and Exam- mend tliis volume to the practitioner, the steward pies. 4. t'orms. 5. 1 he .Statutes, with Notes. Of and the copyholder." — Laio AJaga:ine, these, we can only reiieat what wehavesaid before, " Now, however, that copyhold tenures are that they exhaust the subject ; they give to the being frequently converted into freeholds, Mr. practitioner all the materials required by him to House's treatise will doubtless be productive of conduct the enfranchisement of a coi)yho)d, whe- very extensive benefit ; for it seems to us to have ther voluntary or compulsory " — La:v 'dimes. been very carefully prepared, exceedingly well " When we consider what favor Mr. Kouse's composed and written, and to indicate much ex- Tractical Man and Practical Conveyancer have perience in copyhold law on the part of the found with the profession, we feei sure the legal a.u\.hor."—Solicilori' J»ur)ial, Shelford's Succession, Probate and Legacy Duties. Second Edition. 12mo., 16s. cloth. THE LAW ielatiny the officials. The new editions of works published before the recent scheme of Mr. Davis's work is very simple," — legislation. To read through consecutively, in Law Journal The Supplement maij be had sejjarateli/ , price 3s. sewed. Browning's Divorce and Matrimonial Causes Practice. Post Svo., 8*. cloth. THE PRACTICE and PROCEDURE of the COURT for DIVORCE and MATRIMONIAL CAUSES, including the Acts, Rules, Orders, copious Notes of Cases and Forms of Practical Proceedings, with Tables of Fees and Bills of Costs. By W. Ernst Browning, Esq., of the Inner Temple, Barrister-at-Law. Brandon's Law of Foreign Attachment. Svo., Hi. cloth. A TREATISE upon the CUSTOMARY LAW of FOREIGN ATTACHMENT, and the PRACTICE of the MAYOR'S COURT of the CITY OF LONDON therein. With Forms of Procedure. By WoOD- THOiirE Brandon, Escj., of the Middle Temple, Barrister-at-Law. «- -s •24 LAW WORKS PUBLISHED BY Oke's Laws as to Licensing Inns, &c. &c. ; containing the Licensing Act, 1872, and tlie other Acts in force as to Alehouses, Beer- iiouses, Wine and Refreshment-houses, Shops, &c., selling Intoxicating Liquors, and Billiard and Occasional Licences. Systematically arranged, w itii Explanatory Notes, the authorized Forms of Licences, Tables of Offences, Index, &c. By George C. Oke, Chief Clerk to the Lord Mayor of London. Post 8vo. 10s. cloth. " Mr. Oke has brought out by far the best edition of the act, or perhaps we should say a treatise on it. Everything appears to be given which can by possibility be required, and the forms are abundant." — Law Times. "It is superfluous to lecommend any work on magisterial law which bears the name of Mr. George C. Oke on the title page. That gentleman's treatises are standard authorities, and they deserve the esteem in which they are held. Mr. Oke is not only a well-read and industrious author, but he has a long and first-class experience in the administration of magisterial law. We are sure that lawyers who have licensing cases, and magistrates who have to administer the new act, will be very glad to hear that Mr. Oke has published a treatise on the subject. This treatise, which Mr. Oke modestly desciibes as little, is a comprehensive manual."— Zaw /our»rt/. "This treatise on the Licensing Laws is accurate and thoroughly practical. Of Mr. Oke's treat- ment of his subject we can speak with the highest praise. The book will no doubt at once take its place as the recognized guide for those who have to do with licensing law. The table of offences is especially valuable." — SoUcitors Journal. Oke's Magisterial Synopsis ; a Practical Guide for Magistrates, their Clerks, Attornies, and Constables; Summary Convictions and Indictable Offences, with their Penalties, Punishments, Procedure, &c., being alphabetically and tabularly arranged : with a Copious Index. Eleventh Edition, much enlarged. By George C. Oke, Chief Clerk to the Lord Mayor of London. In -2 vols. 8vo. 63s. cloth. " The tenth edition of this valuable work was published so recently as 1868, and this fact is more eloquent of the merits of Mr. Oke's labours than any amount of commendation from us. It is only necessary that we should notice the appearance of this last (eleventh) edition, 1872, which we do with much pleasure.'' — Laic Tiims. "This is the eleventh edition of Mr. Oke's work since 1848, a fact which speaks for itself. The profession and the public have proved by experience the excellence of the book ; and the personal supervision of the author is a guarantee that the present edition is equal to its pre- decessors. Mr. Oke's labour in preparing it must have been considerable, and the rapid growth of magisterial jurisdiction having rendered it necessary to insert much new matter and to rewrite and condense no small portion of the old. In the result, in spite of every effort made to keep down the bulk of the volume, it has been absolutely necessary to add 200 pages. The whole Synopsis now consists of nearly 1,600 pages of elaliorately arranged and carefully digested in- formation. It is needless to say that we cannot do more than indicate in very general terms the contents of this valuable work. Mr. Oke may well be proud of it. The result of his labours is highly creditable to him, and he deserves the thanks of all who in any capacity are engaged in the administration of justice." — .SvHcitors' Journal. Oke's Magisterial Formulist; being a Complete Col- lection of Forms and Precedents for practical use in all Cases out of Quarter Sessions, and in Parochial Matters, by Magistrates, their Clerks, Attornies and Constables. By George C. Oke, Author of " The Magisterial Synopsis," &c. Fourth Edition, enlarged and improved. 8vo. 38s. cloth. " This work is too well known to need eulogy. It is in universal use in magistrates' courts. The contents are brought down to the end of last year, and consequently it includes all the forms required by the new statutes and decisions of the six years that have elapsed since the pub- lication of the third edition. It is a book that has been known so long, and so extensively, that no further description of it is needed now." — Law Times. Oke's Handy Book of the Game and Fishery Laws; containing the whole Law as to Game, Licences and Certificates, Poaching Prevention, Trespass, Rabbits, Deer, Dogs, Birds and Poisoned Grain throughout the United Kingdom, and Private and Salmon Fisheries in Eng- land. Systematically arranged, with the Acts, Decisions, Notes, Forms, Suggestions, &c. By George C. Oke, Author of "The Magisterial Synopsis," &c. Second Edition. 12mo. 10s. Qd. cloth. " Mr. Oke's name on a title page is a guarantee for at least a ihoxoMghXy practical work. He knows precisely what is wanted, and he supplies it. The arrangement is new and very conve- nient. It is what it professes to be, a handbook for the sportsman and his legal adviser." — Law Times. ^ Q . : : ^- ' & <5- MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. Mx. <©Uc*0 Jftaagistcrial MlQx'k^— continued. Oke's Law of Turnpike Roads ; comprising the whole of the General Acts now in force, including those of 1861 ; the Acts as to Union of Trusts, for facilitating Arrangements with their Creditors, as to the interference by Railways with Roads, their non-repair, and enforcing contri- butions from Parishes, &c., practically arranged. With Cases, copious Notes, all the necessary Forms, and an elaborate Index, &c. By George C. Oke. Second Edition. 12mo. 18s, cloth. " All Mr. Oke's works are well done, and his 'Turnpike Laws ' is an admirable specimen of the class of books required for the guidance of magistrates and legal practitioners in country distriuts." — Solicitors' Journal. -« Shelford's Law of Railways. — Fourth Edition by Glen. In 2 thick vols, royal 8vo., 63^. cloth. SHELFORD'S LAW of RAILWAYS ; containinoj the whole of the Statute Law for the Regulation of Railways in England, Scotland and Ireland : with copious Notes of Decided Cases upon the Statutes, In- troduction to the Law of Railways, and Appendix of Official Documents. Fourth Edition. By William Cunningham Glen, Barrister-at-Law, Author of the " Law of Highways," " Law of Public Health and Local Government," &c. unceasingly engaged in collecting materials, and though he has been ready tor the printer for some time, and has delayed the appearance of the volumes in the expectation of legislative changes in railway law, yet he lias expended full five years of care and attention on his work. Let us hope that he will have no cau?e to think his labour has been in vain. Af any rate ae rnuy venture to predict that Mr. Lunningham Glen's edition of CShelj'ord on Raiboays will he the stan- dard work of our day in that department of law." From the Law Magazine. " Though we have not had the opportunity of going conscientiously through the whole of this elaborate compilation, we have been able to de- vote enough time to it to he able tn speak in the highest terms of the judgment and ability with which it has been prepared. Its execution quite justifies the reputation which Mr. Glen has already acquired as a legal writer, and proves that no one could have been more properly singled out for the duty he has so well discharged. 'I'/ie work must take tts unqiiestioytable position as the leading Manual of the Railway Law oj Great Britain, the cases seem to have been examined, and their effect to be stated with much care and accuracy, and no channel from which informa- tion could he gained has been neglected. Mr. (ilen, indeed, seems to be saturated with know- ledge of his subject. The value of the work is greatly increased by a number of supplemental decisions, which give al' the cases up to the time of publication, and by an index which ap- pears to be thoroughly exhaustive." From the Law Times. "Mr. Glen has done wisely in preserving that reputation, and, as far as possible, the text of Shclford— though very extensive alterations and additions have been required. hut he has a claim ot his own. He is a worthy successor of the original author, and possesses much of the same industry, skill in arrangement and astute- ness in enumerating the points really decided by cited cases. But we have said enough of a work already so well known. It will have a place not in the library of the lawyer alone. It is a book which every railway office should keep on its shelf for reference." From the Law Jo u r n a i. . " Mr. Glen has modestly founded his work as a superstructure on that of Mr. Leonard Shellord, but he has certainly claims to publish it a« a purely indeiiendent composition. I he toil has been as great, and the reward ought to be as < omplete, as if Mr. Glen had disregarded all his predecessors in the production of treatises on railway law. Since the year 1B64 he has been From /Ae Justice of the Peace. " Far be it from us to undervalue Mr. Shelford's labours, or to disparage his merits. But we may nevertheless be permitted to observe tliat 7i'hat has hitherto been consider-d as the ' best work on the subject' (Shelford) has been immeasurably im- proved by the application of Mr. ii len's dilligence and learning. Sufficient, however, has been done to show that it is in every lespect worthy of tile reputation which the work has always enjoyed. We feel little doubt that the credit of that work AVill be greatly increased by Mr. Glen's instru- mentality, and that not only will he have ably maintained its reputation by his snccessi'ul exer- tions, but that be will have added materially to it." From the Solicitors' Journal. "The practitioner will find here collected together all the enactments bearing on every jjossible subject which may come before him in coiineetiou with railways or railway travelling. Whatever questions may arise the lawyer who has this book upon his shelves, may say to him- self ' It there has been any legislation at all con- nected with this branch of the subject I shall at once find it in Shelford;' and it needs not to he said that on this account the bork will be a very ■ comfortable' one to possess. I'he collection is equally exhaustive in the matter of rules, orders, precedents and documents of official authority. To sum up our review; as a collection of statutes and general information the wcrk will prove extremely useful, because in these respects u is so perfectly exhaustive." i&- '^ 0- 26 LAW WORKS PUBLISHED BY Robson's Bankrupt Law. — Second Edition. A TREATISE on the LAW of BANKRUPTCY ; containing H full Exposition of the Principles and Practice of the Law, including the Alterations made by the Bankruptcy Act, 1869. With an Appendix com- prising the Statutes, Rules, Orders and Forms. By George Young RoBSON, Esq., of the Inner Temple, Barrister-at-Law. Second Edition. " We are glad to welcome a second edition of this valuable work, the first edition of wliich we reviewed about two years ago. While the arrangement and form of the book have remained unaltered, the author has not contented himself with merely adding the recent decisions to the old text, for the whole law on the subject, old as well as new, has evidently been carefully considered in the interval between the two editions, and many old cases are now noted which were not re- ferred to in the first edition. .The tendency of all books on Bankruptcy is, of course, just now to increase very much in bulk ; but Mr. Kobson's conciseness of style has enabled him to keep his work within reasonable limits. The present edition contains, amongst other additional matter, a chapter on ' The Bills of Sale Act, 1854 ;" and that Act and the subsequent Act of 1860 are given at length in the Appendix. We notice also as an improve- ment in prhiting the Bankruptcy Act and Rules, that reference is made at the end of each section and rule to the pages of the text where the subject of such section or rule is discussed. The index to the work, so far a3 we have been able to examine it, is a remark- ably good one. On the whole we have no hesi- tation in saying that the Author has consider- ably improved an originally meritorious and useful book, which we recommend very heartily to the profession at large." — Solicitors' Joui~nal. " We must take advantage of the best guide we can find to help us along in the dark and dubious ways of Bankruptcy Law; and Mr. Kobson is undoubtedly one of the best guides we can find. It is with great pleasure that we learn from the preface to this work that the first edition of this work was well received, and that it achieved the success it so well de- served. Mr. Robson has continued studying the subject, and has kept himself up in the law upon which he writes. He has also added to this new edition a chapter on 'The Bills of Sale Act, 1854,' which cannot but be uselul to his readers. The book itself is now so well known to the profession that we need not dwell upon its proved merits, its careful pre- paration, great learning, and skilful arrange- ment." — Law Magazine. Chadwick's Probate Court Manual. Royal 8vo., 12.$. cloth. EXAMPLES of ADMINISTRATION BONDS for the COURT of PROBATE; exhibiting the Principle of various Grants of Administration, and the correct Mode of preparing the Bonds in respect thereof; also JDirections fur preparing the Oaths, arranged for' practical utility. With Extracts from the Statutes; also various Forms of AfHrmation prescribed by Acts of Parliament, and a Supplemental Notice, bringing the work down to 1865. By Samuel Chadavick, of Her Majesty's Court of Probate. " We undertake to say that the po.«session of this volume by practitioners will prevent many a hitch and awkward delay, provoking to the lawyer himself and diflicult to be satisfactorily explained to the clients." — Lara Magazine and lieviea. " Mr. Chadwick's volume will be a necessary part of the law library of the practitioner, for he has collected precedents that are in consiant re- quirement. This is purely a book of practice, but therefore the more valuable. It tells the reader what to do, and that is the information most required after a lawyer begins to practise." — Law Times, Parkinson's Common Law Chamber Practice. 12mo., 7^. cloth. A HANDY BOOK FOR THE COMMON LAW JUDGES' CHAMBERS. By Geo. H. Parkinson, Chamber Clerk to the Hon. Mr. Justice Byles. " For this work Mr. Parkiuson is eminently qualified."— ./uiji/. "It is extremely well calculated for the purpose for which it is intended. So much work is now done in Cyomraon Law Chambers by .iunior clerks that such a little treatise is much wantfd. Mr Parkinson has performed his task skilfully and with care." — Solicitors^ Journal. " The practice in Chambers has become suffi- ciently important to call for a treatise devoted to it, nor could a more competent man for the task have presented himself than Mr. Parkinson, whose great experience as well as intelligence have long placed him iu the position of an autho- rity on all matters appertaining to this peculiar but very extensive branch of Common Law Prac- tice." — Lau> Times. " The e is much that would prove very useful to the practitioner in Mr. Parkinson'scompilation, anil which, so far as we are aware, is not to be found in any other book collected with equal con- ciseness,"— ia» Magazine and Review. ^ ■ — -0 xMESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 27 Glen's Poor Law Orders. — Seventh Edition. Post 8vo., 21s. cloth. The GENERAL CONSOLIDATED and other ORDERS of the POOR LAW COMMISSIONERS and the POOR LAW BOARD; with explanatory Notes elucidating the Orders, Tables of Statutes, Cases and Index to the Orders and Cases. By W. C. Glen, Esq., Barrister at Law. Seventh Edition. Bulley and Bund's Bankruptcy Manual: with Supplement. 12mo., lijs. cloth. A MANUAL of the LAW and PRACTICE of BANK- RUPTCY as Amended and Consolidated by the Statutes of 1869: with an APPENDIX containing the Statutes, Orders and Forms. By John F. Bulley, B.A., of the Inner Temple, Esq., Barrister at Law, and J. W. Willis-Bund, M.A., LL.B., of Lincoln's Inn, Esq., Barrister at Law. With Supplement, including the Orders to 30th April, 1870. The Supplement may be had separately. Is. sewed. " It would be impossible, within our limits, to work is completeness, and we think we may assure place before our readers any worthy resume of ourreadersthat work so well done will meet with this complete Manual. The essential merit of the its reward." — iaza Masaiine. Coombs' Manual of Solicitors' Bookkeeping. 8vo., 10.S. (id. cloth. A MANUAL of SOLICITORS' BOOKKEEPING: com- prising Practical Exemplifications of a Concise and Simple Plan of Double Entry, with Forms of Account and other Books relating to Bills, Cash, &c., showing their Operation, giving Instructions for Keeping, Posting and Balancing them, and Directions for Drawing Costs, adapted to a large or small, sole or partnership business. By W. B. Coombs, Law Accountant and Costs Draftsman. *»* The various Account Boohs described in the above System, the forms of which are cojnjright, may be had from the Publishers at the prices stated in the worh, 'page 274. "It adds some excellent instructions for tyro of average skill and abilities, with appllca- drawing bills of costs. Mr. Coombs is a tion, could under ordinary circumstances open practical man, and has produced a practical and keep the accounts of a business ; and, so far book." — Lmo Times. as we can judge, the author has succeeded in "He has performed his task in a masterly man- his endeavour to divest Solicitors' Bookkeeping ner, and in doing so has given the why and the of complexity, and to be concise and simple, wherefore of the whole system of Solicitors' without being inefficient." — Law Journal. Bookkeeping. The volume is the most compre- "This is not merely a valuable addition to hens;ive we remember to have seen on the sub- the library of every solicitor, it is a book that ject, and from the clear and intelligible manner every articled clerk, now that intermediate in which the whole has been workea out it will examinations embrace bookkeeping, will be render it unexceptionable in the hands of the read with profit and benefit to himself. It student and the practitioner." — Law Magazine. may be fairly said to exhaust the subject of " So clear do the instructions appear, that a which it treats."— Sw^iCiYwrs' Journal. Lushington's Naval Prize Law. Uoyal 8vo., lO*-. (.id. cloth. A MANUAL of NAVAL PRIZE LAW. By Godfrey LusHiNGTON, of the Inner Temple, Esq., Barrister at Law. Lovesy's Law of Arbitration (Masters and Workmen). 12mo. 4«. cloth. {Dedicated, by permission, to Lord St. Leonards.) THE LAW of ARBITRATION between MASTERS nnd WOUKMliN, as founded upon the Councils of Conciliation Act of 1807 (30 & 31 Vict. c. 105), the Mast.;rs and Workmen Act (5 Geo. 4, c. 9(5), and other Acts, with an Introduction and Notes. By C. W. LovKav, Est]., of the Middle Temple, Barrister at Law. ^ . O o- 28 LAW WORKS PUBLISHED BY Hertslet's Commercial Treaties. 8vo., Vol. XII., iOs. cloth. HERTSLET'S TREATIES of Commerce, Navigation, Slave Trade, Post Office Communications, Copyright, &c., at present subsisting between Great Britain and Foreign Powers. Compiled from Autlientic Documents bj' Ebward Hertslet, Esq., Librarian and Keeper of the Papers of the Foreign Office. Vol. XIT. includes an Index of Subjects to the Twelve published Volumes, which is also sold separately, price 10s. in cloth boards. *,* I'ol. 1, price 12s. ; Vol. 2, pj-ice I2s. ; Vol. 3, ^^rif^e 18.?. ; Vol. 4, jjrice ISs. ; Vol. b, 2>rice 20s.; Vol. &, jjrice 2bs.; Vol. 1, price ZOs.; Vol.8, price 30s.; Vol. 9, jn-ice 30s.; Vol. 10, price 30s.; Vol. 11, price 30s.; may be had separately to complete sets, or the Work may be had complete in Twelve Volumes, price £14 : 15s., boards. List of Subjects: — Aliens — Army — BaukruiJlcy — Births Abroad — Boundaries — Brnkers— Burial Grounds Abroad— Chapels, Chaplains, &c., Abroad— Claims— Coal— Coasting Trade— Colli- sions at Sea — Colonial —Commeice and Navigation (Treaties, &c.)— Consuls — Copyright^ Criminals: Murder — Currency — Deaths Abroad — Deserters — Diplomatic — Duties: Vessels and Cargoes — Emigration and Immigration — Enlistments — Extradition— Factories — Fisheries, &c. — Flags — Free Ports — Governmenc — Jurisdiction — Justice — Labourers — Law — Light Dues, &c.— Loans — Lotteries— Maritime Law — Marriaoes, Births, Deaths, &c. — Mediations, Awards, &c. — Medical — Most Favoured Nation — Navigation — Navy — Neutrality— Otfenders (Crimi- iials)- Orders, Medals, &c. — Passenger Vessels, &c. — Passports — Patents — Pensions, &c. — Pilotage : Pilots — Piracy : Pirates — Postal (Treaties, &c.)— Postal (Warrants, Acts, cfcc.)— Precedence — Privileges : Vessels and Cargoes— Prizes, Seizures, &c.— Property— Quarantine- Reciprocity — Religion: Chapels, &c. — Revenues (Foreign) — Right of Search and Visit- Rivers, Lakes, &c. — Seamen — Shipping Dues, &c. — Shipwrecks — Slave Trade: Slavery, &c.-- Smuggling— Sound Dues— StadeToll— Sugar— Tariffs— Taxes— Telegraph— Territories— Trade — Trade Marks— Trade and Navigation — War, &c.— Wills— Wrecks and Salvage — Yachts. Trower's Church Building Laws. Post Svo., 8i. cloth. THE LAW of the BUILDING of CHURCHES, PAR- SONAGES, and SCHOOLS, and of the Division of Parishes and Places. By Charles Francis Trower, M.A., of the Inner Temple, Esq., Barrister at Law, late Fellow of Exeter College, Oxford, and late Secretary of Pre- sentations to Lord Chancellor AVestbury. " We may pronounce it a useful work. It con- "In a well-arranged volume this gentleman tains a great mass of information of essential im- points out concisely and intelligibly how the Uiffi- port, and those who, as parishioners, legal ad- cullies which usually beset parties in such mal- visers, or clergymen, are concerned with glebes, ters may be avoided."— Oj/ori/ University Uerald. endowmeuts.dislrict chapelries, parishes, ecclesi- " On all the topics germane to us title this vo- astical commissions, and such like matters, about lunie will be found a handy book of ecclesiastical which the public, and notably the clerical public, law, and should on that account be made widelj seem to know but little, but which it is needless known among the clergy."— CAure/i Mail. to sav are matters of much importance."— &/i- "It isacompact andhandy treatise, very clearly citors' Journal. written, well arranged, easy of reference, and, be- " His boolc is just the one we could wish every sides a good table of contents, it his an elaborate clergyman to possess, for if it was in thehandsof index. It is a book we are glad to have and to our readers they would be saved the trouble of recommend.'" — Literary CImrchman, asking us very many (i\iestious."—ClericalJournal. Field's Law Relating to Curates, &c. Post Svo., Gs. cloth The LAW RELATING to PROTESTANT CURATES and the RESIDENCE of INCUMBENTS or their BENEFICES in ENG- LAND and IRELAND, By C. D. Field, M.A., LL.D., late Scholar of Trin. Coll. Dublin, and now of H. M.'s Bengal Civil Service; recently Judge of the Principal Court of Small Causes at Kishna2:hur ; and Recristrar of H. M.'s High Court of Judicatnre at Fort William in Bengal ; Author of " The Law of Evidence in India," &c. 9 • — — — ains, and which not only bears the mark of great application and research, but which shows a familiarity with the subject."— yaj(!f« oj llie Peace, -» © — : , MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 31 Butt on Compensation under the Irish Land Act, 1870. Royal 8vo , 25s. cloth. A PRACTICAL TREATISE on the NEW LAW of COM- PENSATION to TENANTS, and the other Provisions of the Landlord and Tenant Act, 1870; with an Appendix of Statutes and Rules, and a Chapter on the recent Judgment in the Court of Appeal in Chancery. By Isaac Butt, Esq., of the Inner Temple, Barrister at Law, one of Her Majesty's Counsel in Ireland. "It is no small praise to say that this are concerned in the working of the act this elaborate work is worthy of the high reputa- book will be simply indispensable, and it is tion of Mr. Butt, and yet that commendation hardly going too far to assert that it will give would not fairly set forth the merit of a a tone to the interpretation of the law."— Znw treatise which cannot fail to vastly enhance Journal. the reputation of its author. To those who Brandon's Mayor's Court Practice. 8vo., 3s. 6d. cloth. EPITOME of the NOTES of PRACTICE of the MAYOR'S COURT PRACTICE of the CITY of LONDON in ordinary Actions. By WooDTHORPE Brandon, Esq., Barrister at Law. Glen's Law of Public Health. — Sixth Edition. 8vo., 30;?. cloth. The LAW relating to PUBLIC HEALTH and LOCAL GOVERNMENT, including the Law relating to the Removal of Nuisances injurious to Health, the Prevention of Diseases, and Sewer Authorities; with the Statutes and Cases. By W. Cunningham Glen, of the Middle Temple, Esq., Barrister at Law. " We can thoroughly recommend the work, various decisions upon it by the courts, sen- not only to lawyers, but also to members of sible instructions and practical forms, together local boards, and to such, if any, of our legis- with a most copious index, by which this large lators as wish to get up the subject." — Suli- mass of law is rendered readily accessible, eilors' Journal. there is no book on the subject bearing any " It is enough to say that as a well arranged comparison with this one by Mr. Glen." — Law collection of the law as it is, with notes of the Times. Smith's Practice of Conveyancing. Post 8vo., 6s. cloth. AN ELEMENTARY VIEW of the PRACTICE of CON- VEYANCING in SOLICITORS' OFFICES; with an Outline of the Proceedings under the Transfer of Land and Declaration of Title Acts, 18(52, for the use of Articled Clerks. By Edmund Smith, B.A., late of Pembroke College, Cambridge. Attorney and Solicitor. Wills on Circumstantial Evidence. — Fourth Edition. 8vo., lOs. cloth. AN ESSAY on the PRINCIPLES of CIRCUMSTANTIAL EVIDENCE. Illustrtited by numerous Cases. By the late William Wills, Esq. Fourth Edition, edited by his Son, Alfred Wills, Esq., Barrister at Law. -O 32 LAW WORKS PUBLISHED BY BAR EXAMINATION JOURNAL. Edited by A. D. TYSSEX, B.C.L., M.A. and R. K. WILSON, M.A., Banisters at Law. Nos. 1, 2, 3 & 4, TRIN. & MICHS 1871, and TRIN. & MICHS. 1872. Fuhlishecl in Kumiers, 8ro., at 3«. each, hy post 3s. 1^., in Trinity and 3Iic7iaehnas Terms in each year. Subjects of Bar Examination. Examination Papers, vrith the Answers. ENGLISH LAW: — Constitutional Law and Legal Historj- ; Equity; Common Law ; Real Pro- perty ; JurL^prudence, &c. ; General Paper. IN1)I.\X LAW: -Hindu Law ; Maliomcdaii Law; Penal Code ; Criminal Procedure Code ; Civil Procedure Code ; Succession Act ; General Paper. Powell on Evidence. — Third Edition by Cutler & Griffin. 12ino., \6s. cloth. THE PRINCIPLES and PRACTICE of the LAW of EVI- DENCE. By Edmund Powell, M.A., of the Inner Temple, Barrister at Law. Third Edition hy John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Professor of English Law and Jurisprudence, and Professor of Indian Jurisprudence at King's College, London ; and Edmund Fuller Griffin, B.A., of Lincoln's Inn, Barrister at Law. To which is added a SUPPLEMENT containing the alterations in the Law of Evidence to Michaelmas, 1869. The Supplement may be had separately price Is. sewed. *»* AHIioiiiih in t/iis icork the most impoiiant decUions enJyare quoted. andas a rule but one authority is given for each proposition, yet there are nearly 4(-i0 cases cited therein which do not appear in the table of cases prefixed to the latest edition o/^' Taylor on Eviilence." " We have very great pleasure in noticing •' This is a new edition of a work which we this edition of a workwith which we have long fancy has scarcely been as well known as it been familiar. It was certainly a good idea to deserves. To students and young barristers make the book useful to the equity practitioner. also the book will be useful, not only for read- It was a still better idea to adapt the Anglo- ing at home, as more practical than Best and Indian rules of evidence, which must assist less detailed than Taylor, but also for taking materially those who are studving in England with them into court." — Solicitors' Journal. for the Indian bar, or preparing for the Indian " This is a good edition of a very useful work, civil service. Jlr. Cutler, being Professor of The book itself we have always considered as Indian Jurisprudence at King's College, has well adapted for the student and convenient executed this latter bianch of the work wifi for the practitioner. It explains principles the ability which was to be expected from him, clearly, and illustrates them without over- and we tan heartily recommend this excellent loading them by the cases quoted. The work edition of Mr. Powell's book as likely to prove is more practical in its object than that of of verv wide uti ity." — Late Times. Mr. Best, and treats the subject in a more "While we think that the sphere of this succinct manner than Mr. Pitt Taylor. There treatise must be contined to the education of could be no better introduction to the study students, v,e liave no hesitation in assertmg of the law of evidence than Mr. Powell's book, that within that sphere the book is a great sue- whilst it is perfectly suitable for ordinary cess, and we cordially recommend the volume reference, and the care that has been bestowed to students both for the English bar and fur on it by the present editors will, we think, the Indian bar. Its simplicity and perspicuity considerably enhance its value." — Law Maga- render it also a valuable aid to members of zine and Review. the Indian civil service."— Zajr Journal. Holland on the Form of the Law. 8vo., 7s. Gd. cloth. ESSAYS upon the FORM of the LAW. By Thomas Erskixe Holland, M.A., Fellow of E.xeter College, 0.\ford, and of Lincoln's Inn, Barrister at Law. " a work of great ability." — Athtmeum. essays to our readers." — Law Magazine. "Entitled to very high commendation." — "A work in which the whole matter is Law Tim^s. easily intelligible to the lay as well as the "The essays of an author so well qualified professional public " — Saturday Reiiew. to write upon the subject."— Za«- Journal. " Mr. Holland's extremely valuable and in- " We can confidently recommend these genious essays." — Spectator. ^ — ^ ^ 55 MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 33 | Wigram on Extrinsic Evidence as to Wills. Fourth Edition. 8vo., lis. cloth. AN EXAMINATION OF THE RULES OF LAW resnectino- the Admission of EXTRINSIC EVIDENCE in Aid of the INTER- PRETATION OF WILLS. By the Right Hon. Sir James Wigram, Knt. The Fourth Edition, prepared for the press witli the sanction of the learned Author, by W. Knox Wigram, M.A., of Lincoln's Inn, Esq., Barrister-at-Law. " In the celebrated treatise of Sir James aJmiration of every judge who lias had to con- Wigratii, ihe rules of law are stated, discussed suit it "—Lord hingsilouiii, in a Pihy Couticil and explained in a manner which has exciled the Judgment, Juit/ Sih, 1858. Williams's Common Law Pleading and Practice. Svo., I2«. cloth. An INTRODUCTION to PRACTICE and PLEADING in the SUPERIOR COURTS of LAW, embracing: an outline of the whole proceedings in an Action at Law, on Motion, and at Judges' Cham- bers; together with the Rules of Pleading and Practice, and Forms of all the principal Proceedings. By Watkin Williams, Esq., M.P., of the Inner Temple, Barrister at Law. " For the Student especially the book has fea- with a i)ractical treatment of the subject, illus- tures of peculiar value, it is at the same time traced by forms and examples of the main pro- scientific and practical, and throughout I he work ceediiias." — Jurht, jhere is a judicious union of general principles Bainbridge's Law of Mines and Minerals.— 3rd Edit. 8vo., 30s. cloth. A TREATISE on the LAW of MINES and MINERALS. By William Bainbridge, Esq., F.G.S., of the Inner Temple, Barrister at Law. Third Edition, carefully revised, and much enlarged by additional matter relating to manorial rights — rights of way and water and other mining easements— the sale of mines and shares — the construction of leases— cost book and general partnerships — injuries from undermining and inundations — barriers and working out of bounds. With an Appendix of Forms and Customs and a Glossary of English Mining Terms. *»* A Supplement to this work is in preparation, to inelude the two Mines liegulation Acts of 1872. " When a work has reached three editions, predecessors." — Law Times. criticism as to its practical value is superfluous. "After an interval of eleven years we have We believe that this work was the tirst pub- to welcome a new edition of Mr. Bainbridge's lished in England on the special subject of work on mines and minerals. It would be mining law — others have sin' e been published entiiely superfluous to attempt a general re- — but we see no reason in looking at the volume view of a work which has for so long a period before us to believe that it has yet been super- occupied the position of the standard work on seded." — Luil Magazine. this important subject. Those only who, by " Mr. Bainbridge was we believe the first to the nature of their practice, have learned to collect and (lublish, in a separate treati>e, the lean upon Mr. liainbridge as on a solid staff, Law of Mines and Minerals, and the work was can appreciate the deep research, the adniira- so well done that bis volume at once took its ble method, and the graceful style of tliis place in the law library as the text book on the model treatise. Therefore we are merely re- subject to which it was devoted. This work duced to the inquiry, whether the law has, by must be already familiar to all readers whose force of statutes and of judicial dei isioiis, un- practice brings them in any manner in con- dergone such development, mt.dification, or nection with mines or mining, and they well change since the year IH5G as to justify a new know its value. We can only say of this new edition? That question may be readily edition that it is in all respects worthy of its answered in the affirmative." — Z^aic Journal jAj _ ^ - Times. have read his adaiir.cble Kook of Evidence will " I he two chaiuers on the Railway and Canal attest. It will be seen, from our outline of the Traffic Act, JHo6, are yuite new, and the recent contents, how exhaustively the subieci has been cases under the provisions of that statute are treated, and that it is entitled to be, that which analyzed in lucid language." — Laa Magazine, Smith's Bar Education. A HISTORY of EDUCATION 'for the ENGLISH BAR, with SUGGESTIONS as to SUBJECTS and METHODS of STUDY. By Philip Anstie Smith, Esq., M.A., LL.B., Barrister-at-Law. -O MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 35 Foreshores. Report of case The Queen at the prosecution of Williams V. Nicholson, for removing Shingle from the Foreshore at Withernsea. Heard at the Police Court, Hull, 31st May, 1870. 8vo. Is. sewed. 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Edited by JAMES ERLE BENHAM, formerly of King's College London ; Author of " The Student's Examination Guide," &c. CONTEXTS OF No. VIII.— October, 1872. . I. Special Examination Notices for 1873. — II. moirs of Thackeraj', Sir G. C. Lewis, Admiral " What Leads to Success in Life?" — III. Brains Fitzroy and several others) — VII. TheQuestions — Quantity or Quality.— r\^. A Retrospective of the Preliminary Examination of the 30th and Glance. — V. Kemarks on "Memory" (continued). 31st of October, with the Answers. — VIII. Re- — VI. Synopsis of leading Authors, Statesmen, view of the October Examination. — IX. Corre- Poets, and Philosophers (the List includes Me- spondence. CONTENT.S OF No. A^IL— July, 1872. I. Special Examination Notices for Michaelmas (the List includes Notices of Lord Byron, Sir Tenn, 1872. — II. " How many Hours a Day do Robert Peel, Lord Macaulayand several others). you recommend me to study?" — III. Critical VI. The Questions of the Preliminary Examina- Reviews. — IV. A few Remarks on the Improve- tion of the 17th and 18th of July, with the ment of the Memory. — V. Synopsis of leading Answers. —VII. Review of the July Esamina- Authoi-s, Statesmen, Poets and Philosophers tion. — VIII. Correspondence. CONTENTS OF No. VI.— May, 1872. 1. Special Examination Notice. — II. How to nopsis of leading Authors, Statesmen, Poets and become an Orator ; with Selections from the Philosophers. — IV. The Questions of the Preli- Speeches of Lord Brougham, Pitt, Curran, Daniel minary Examination of ttie 15th and 16th of O'Connell, Burke, the late Earl of Derby, Mr. May, with the Answers. — V. Review of the May- Gladstone, Mr. Disraeli and others.— III. Sy- Examination. — VL Correspondence. CONTENTS OF No. V.— February, 1872. I. Examination Notices for 1872 — II. The Latin The Questions of the Prelimmarj- Examination Language; the value of a knowledge of ; its pro- of the 14th and 15th of February, with the An- nunciation, &c. — III. A few Remarks on the swers. — VI. Review of the February Kxamina- Study of French. — IV. Synopsis of leading Au- tion. — VII. Correspondence, thors. Statesmen, Poets and Philosophers. — V. CONTENTS OF No. IV.— October, 1871. I. Examination Notices, &c.— II. What En- — V. The Questions of the Preliminary Ibcaml- dowments are essential to those aspiring to nation held on the 25th and 20th days of October, become Barristers and Solicitors?— III. Lectures 1871, with the Answers. — VI. Review of the on Language : Part III.— IV. Synopsis of Lead- October Examination. — VII. Correspondence, ing Authors, Statesmen, Poets and Philosophers. CONTENTS OF No. III.— July, 1871. I. Miscellaneous Notices and Reviews. — IL Lee- Examination held on the 12th and 13th days of tures on Language. Part II. — III. S3Tiopsis of July, 1871, with the Answers. — V. Review of leading Authors, Statesmen Poets and Philo- the July Examination.— VI. Correspondence. sophers. — IV. The Questions of the Preliminary CONTENTS OF No. II.— May, 1871. I. Miscellaneous Notices and Reviews of Educa- 11th days of May, 1871, with the Answers. — tional Works.— II. Lectures on Language. — III. V. Review of the May Examination and Re- Synopsis of leading Authors, Statesmen, Poets marks on the Study of English History. — VI. and Philosophers.— IV. The Questions of the Correspondence. Preliminary Examination held on the 10th and CONTENTS OF No. I.— February, 1871. I. Introductory Remarks and Review of the past the Preliminary Examination held on the 15th Examinations. — II. Essay on the Imperfections and 16th days of February, 1871, with the An- of the Orthography of the English Language. — swers. — V. Review of the Februarj' Examina- III. Synopsis of Leading Authors, Statesmen, tion, and names of best books to be studied. — Poets and Philosophers.— IV. The Questions of VI. Correspondence. Imprinted at London, nvmber Seuen in Flele slrele wit/iin Temple barre, y — ^ whylom the signe of the Hande and starre, and the Hovse where liuecl Richard Tottel, printer bo Special patents; of tije bofeeg of tijc Common laiut in the seueral Reigns of Kng Edn\ VI. and of the qvenes Marye and'Elizabeth. Mr* (^W^ Maqmtriai WiovU^. Oke's Laws as to Licensing Inns, &c. &c. ; containing the Licensing Act, 1872, and the other Acts in force as to Alehouses, Beer- houses, Wine and Refreshment-houses, Shops, &c., selling Intoxicatin-j Liquors, and Billiard and Occasional Licences. Systematically arranged, with Explanatory Notes, the authorizedFormsofLicences, Tables of Offences, Index, &c. By George C. Oke, Chief Clerk to the Lord Mayor of London. Post 8vo. 10s. cloth. " Mr. Oke has brought out by fiir the best edition of the act."— Law Timts. 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