c I iiiMUMiwiimiwi iimiilliMi ■■■HI w >. ■< wvy^ '.^L %^m-. "'^^^iiwww^ 4^^. ^ird^^^y^ ■S''-wi' ^li yi/:^V,V;V 't-^gfel.-*v^: HV^ /^:^ l!**^!*^ '^^.U^'^' ;^^\;ww/^%/^" UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY JORONTO.ONT. LAWBOOK I AND PtlBliSM£RS,\t0iNBUR6H, DEALERS AND BINDERS SCOTUNDv CARRIERS' LAW, RELATING TO GOODS AND PASSENGEE TKAFEIC EAILWAYS, CANALS, AND STEAM SHIPS, WITH CASES. BY E, B. lYATTS, Goods Manager, Midland Great Western Railway. (Late of Great Indian Peninsular— L. ^ N. W.—West Mid.— Buffalo Sf L. H., and L. ^ Y. Bailivays.) ALL RIGHTS RESERVED. LONDON: PUBLISHED BY M'CORQUODALE & CO., LIMITED, 55, CARDINGTON STREET, EUSTON SQUARE, N.W.; ST. THOMAS BT., S.E, ; and CHANGE ALLEY, E.G. ; And at NEWTON-LE.WILLOWS, LEEDS, ajo) GLASGOW. 1883 \ Is/ \~^ C \ n3 5 I I I DEDICATED TO Sib EALPH S. CUSACK, D.L., THE KESPECTED CHAIEMAN OF THE MIDLAND GREAT WESTERN RAILWAY OP IRELAND. PREFACE. PivB years since I took upon myself tlie task of compiling a work on legal decisions in tlie higher Courts of Justice in respect to Eailway Traffic, and the following pages are the result. The spare time of a railway official available for literary pursuits is very limited, and this, together with the difficulty in getting access to the records of the trials, explains the length of time occupied in this work. I am led to consider such a book as tliis necessary from the diffi- culty I have always experienced in obtaining information on Carriers' Law from ordinary law books written by barristers, and other railway officials will probably have experienced a similar difficulty. In such text^books one can seldom find the required information on the particular point that may be at issue. This may arise from barristers writing books technically obscure to the possible litigant who may be able to pay for an opinion, or it may arise from the technicalities of a carrier's business being too obscure for barristers to eliminate from the trials the essential points upon which a carrier requires information. It is likely that both these causes may have contributed to render barristers' books unsuited as legal guides to common carriers. Furthermore, barristers' books are commentaries on legal decisions, whereas a carrier wants the actual case as unfolded at the trial ; that is to say, the facts stripped of legal technicalities, with the material part of the Judge's decision added thereto. This is exactly what has been attempted in the following pages. In fact, I have taken the law, as unfolded by the Judges, and classified and fitted it into the railway frame ready for easy reference. In the main I have abstained from being a commentator, preferring rather to collate the words of the Judges and apply them directly to the sections of the business to which they relate. The annoyance the reader is subjected to when consulting an ordinary book on Carriers' Law consists in having to read the notes on each page referring him to other parallel cases, but which otlier Yl PREFACE. cases are seldom to be found in the book. I determined, therefore, to dispense with all this, and to get rid of side-notes and foot-notes altogether. The question, however, arose — How was this to be done? I could find no law book without notes, and the ancient books seem to be even worse in this respect than the modern ones. However, the classifying power of a railway education came to my aid, and I devised an arrangement likely to be found convenient, and which it is hoped will meet with the approval of my readers. The cases are arranged in numbered order as nearly as possible as they relate to each particular section of the business. There are many instances, however, where a Judge's decision has not only settled the one point at issue, but has also elicited the Judge's opinion (dicta) in respect to different other points relating to other sections of the business. Thus it has often been found necessary to " cut up " a Judgment into several " Digests," and marshal these several "Digests" under the particular section of the business to which they have special reference, while at the same time giving the Judgment at some length in the report. This has led to some repe- tition of "Digests," but such was unavoidable, seeing the object to be attained was to make each section as complete as possible in itself. It is hoped this book will be found of service to the majority of rail- way officials. There are many experienced officials familiar with most of the leading points of Carriers' Law, but very few able to quote the cases or refer to the legal authorities where the cases can be turned up. Many barristers and solicitors, with business chiefly in other legal channels, are lamentably deficient in their knowledge of Carriers' Law, and their misdirected persistency when in the wrong cannot be overcome unless they are referred to the authority of their own law reports. An official, by the aid of this book, will now be enabled to take a different stand with his legal adviser than he could hereto- fore, when occasionally he may have been forced to hold his peace and submit to contradiction. Officials dealing with compensation cases may, from a study of the foUowdng pages, greatly extend their knowledge as to the limit of a carrier's liability in respect to goods and passenger claims. The successful resistance of a claim depends greatly upon the elimination of the real facts of the case. The judgment to determine PREFACE. Vll the kind of facts necessary to be worked up in any. case rests upon an extensive knowledge of tlie particular facts that have controlled the legal decisions of the past. It is useless to employ clerks' time, at great expense, in working up a mass of information utterly useless as a legal defence. It is, however, requisite, as a matter of discipline, to collect such facts as will fix the blame of the loss or damage upon the person in fault. The frequent haphazard decisions in County Courts aU over the kingdom in small cases against carriers is a great grievance, as these decisions are so frequently inconsistent one with another. County Court decisions usually appear to be decided by the Judge's view of the eqmty of the case, and not upon the legal merits. Thus the principles decided in the higher Courts are too often laid aside, and claimants encouraged to believe they can recover under almost every conceivable circumstance. This emboldens litigants, increases litigation, and disseminates false opinions among traders as to the extent of the liability of carriers. It is hoped that this book will diffuse among railway officials more positive knowledge of the limit of a carrier's liability, and that in time to come it will lead to more uniform decisions by County Court Judges. With some companies the station-masters and claims clerks attend County Courts to defend small cases. I ventiu'e to believe that if this book is handed up by a station-master to any County Court Judge as a text-book, and the case quoted proves to be in poiat, the Judge will deem it necessary to adjourn the case to afford himself the opportunity of referring to the law report which has been quoted, so as to keep himself right in case of an appeal. If in the future a little spirit is shown in taking a few appeals into the higher Courts, and these appeal cases are wisely selected, so as to prove successful, the practice of the County Courts may be greatly improved. The money paid yearly in compensation is, in the gross, a very large sum, although, when the thousands of passengers and thousands of tons of goods carried are considered, and an average taken, the loss is not more than may fairly be expected. At the same time, anything that can be done to reduce the item of com- pensation is so much more money into the pockets of the share- holders. The following statement of money paid as compensation by PREFACE. the railway companies of the United Kingdom is taken from the Parliamentary Returns for the several years quoted :— England and Wales. Personal Injury 1881. 1880. 1879. 1878. 1877. 1876. £ 185,949 £ 185,396 £ 172,986 £ 222,290 £ 255,760 £ 287,201 Damage and Loss of Goods 167,976 156,667 169,038 208,637 262,202 289,017 Legal and Parliamentary 228,545 217,516 186,261 195,753 220,820 299,194 Scotland. Personal In j ury 63,242 44,731 13,166 15,883 12,008 25,330 Damage and Loss of GoocLs 12,783 14,460 14,580 17,272 25,044 24,036 Legal and Parliamentary 46,419 42,995 18,730 33,043 22,839 25,472 Ireland. Personal Injury 4,977 3,973 23,904 16,300 17,201 7,335 Damage and Loss of Goods 5,520 4,782 6,340 8,238 13,120 10,896 Legal and Parliamentary 15,518 16,621 14,854 9,487 12,543 13,158 I am of opinion the investigation and settlement of goods claims by railway companies might be greatly improved. The routine in commencing to investigate a claim is to collect together all the facts, and for this purpose the case is, as it were, put into a mill, and a considerable amount of iixformation is ground up, collected, and tabulated. A great portion of this information often does not really bear upon the case, and is quite superfluous. The inquiry having been completed, some person in authority then expresses an opinion upon the collected facts, and action is taken accordingly. I consider the investigation of claims by correspondence is uncertain, dilatory, and imperfect. Officials through whose hands the goods have passed, or who are concerned in the case, while desiring to pi'otect and save the company, often exhibit a greater interest in trying to save them- selves from blame and discredit ; hence reports are too often personal defences rather than undiluted statements of fact. On a large railway I would have one, or perhaps two, central claims offices. To these I would attach a special class of men, trained to be claim inspectors, and they should be as good in quality as travelling auditors. They should have districts, and should travel and person- PREFACE. IX ally investigate and report upon every claim wortli investigation. They should catechise every man through whose hands the goods may have passed, take down men's statements in writing, which should be signed by the men, and, in fact, carrij each case through from he;jinninr/ to end. These claim inspectors should be thoroughly versed in railway business and Carriers' Law, and be paid about £150 a year. This would reduce the claims correspondence to almost nil, and greatly expedite the inquiry into and settlement of claims. It should put the collection of the facts into quite independent hands. It should also put the elimination of the facts into the hands of thinking men, supersede the routine correspondent clerks, and limit the inquiry to the essential facts only. The expense would be no greater, and probably less, because many of the present chief claims clerks might become inspectors, and the juniors could be transferred to other de- partments. The number of clerks would be less, but the rate of pay to the fewer men would be advanced, and the quality and judgment of the men would be of a higher standard. The claim inspectors might attend their own cases that drifted into the County Court, and thus often save legal expenses. The following cases number nearly eight hundred. I could have collected probably a couple of hundred more, but I found that I had taken a sufficient number of leading cases to illustrate the law' on all important points connected with the business of a carrier. Further- more, I feared to make the book too bulky and too costly in produc- tion. If my efforts prove acceptable, and there should be a demand hereafter for the then recent cases up to date, I may perhaps venture to compile an "Appendix" volume, classified in like manner, and containing such additional cases, both new and old, as would be likely to prove serviceable. E. B. IVATTS. February, 1883. INDEX TO CASES. Aberdeen Commercial Co. v. Great North of Scotland Eaihvay Co. 619 Adams V. Lancashire and Yorkshire Kailway Co 865 Agrell V. London and North Western Eailway Co 725 Aldridge V. Great "Western Eailway Co 34< Alexander r. North Eastern Railway Co 706 Allan V. Gripper 252 Allday u. Great Western Eaihvay Co 987 Allen V. Chester and Holyhead Eailway Co 886 Allen v. Lancashire and Yorkshire Eailway Co 1038 Allen V. London and South Western Eailway Co 799 Alton V. Midland Eaihvay Co 976 Anderson -y. Chester and Holyhead Eailway Co 10i2 Anderson v. London and North Western Eaihvay Co. 86 Anderson V. North Eastern Eaihvay Co. 709 Armory V, Delamirie ^"^ Armstrong V. Lancashire and Yorkshire Eaihvay Co. 967 Ashenden -y. London Brighton and South Coast Eaihvay Co. ... 221 Aspinall u. Pickford ^91 Atkinson v. Great Southern and Western Eailway Co 742 Attorney-General v. Oxford Worcester and Wolverhampton Eail- wayCo 1086 Attorney-General r. Lancashire and Yorkshire Eailway Co. ... 1090 Do. r. Great Northern Eailway Co 480 Do. r. London and North Western Eailway Co. ... . 1099 Do. V. Great Eastern Eaihvay Co. 1097 Do. u. Harley 82 Do. i;. Great Southern and Western Eaihvay Co. ... 1102 Austin v. Manchester Sheffield and Lincolnshire Eailway Co. ... 1050 Austin V. Great Western Eaihvay Co 976 Ayles u. South Eastern Eaihvay Co 923 Barbour r. South Eastern Eailway Co 351 Barker i;. Midland Eailway Co 546 Barrett v. Great Northern, also Midland Eailway Co 1080 Barrow, jBo) ^arfe, re Worsdell 245 Barry u. Midland Great Western Eailway Co 776 Batson v. Donovan 91 Baxendale r. Eastern Counties Eailway Co 642 Do. y. Great Eastern Eailway Co. 107 Do. V. Great Western Eailway Co. 506 Do. V. do. do. 522 Do. V. do. do. 526 Do. V. do. do. 532 Do. v. North Devon Eaihvay Co. 522 Do. V. London and South Western Eailway Co 533 xii INDEX TO CASES. Page Baxenclale v. London and South Western Railway Co 560 Do. r. West Midland Eailway Co 537 Do. V. London Chatham and Dover Eailway Co 132 Do. v. Bristol and Exeter Eailway Co 557 Bayley v. Manchester Sheffield and Lincolnshire Eailway Co. ... 792 Beachamp v. Powley 155 Beadell -y. Eastern Counties Eailway Co. 548 Beal V. South Devon Eailway Co 285 Becher i). Great Eastern Eailway Co ,, ... 759 Beck r. Evans 326 Beckford r. Crutwell 334 Behrens V. Great Northern Eailway Co. 131 Bell -y. Midland Eailway Co 1083 Bell V. Midland and London and North Western Eailway Cos, ... 564 Bellsdyke Coal Co. 'u. North British Eailway Co 500 Benett v. Peninsular and Oriental Steam Shipping Co. 748 Bennett V. Manchester Sheffield and Lincolnshire Eailway Co, ... 479 Bentham v. Hoyle (Lancashii-e and Yorkshire) 692 Bergheim V. Great Eastern Eailway Co 730 Berndtson r. Strong .., . ... ... 244 Bernstein r. Baxendale ... 83 Berringer v. Great Eastern Eailway Co. ... ,,. 980 Biggs i;. Great Eastern Eailway Co 706 Biggs V. Mitchell 60 Bilbee v. London Brighton and South Coast Eailway Co 906 BirchelU', Manchester South Junction and Altrincham Eailway Co. 704 Bird V. Great Northern Eailway Co 887 Birkenhead Lancashire and Cheshire Junction Eailway Co. v. Com- missioners of Assessed Taxes 1099 Birkett V. Whitehaven Junction Eailway Co 828 Birkett v. Willan 385 Birtles u. London and North Western Eailway Co 941 Bishop V, Gi'eat Western Eailway Co 1100 Black V. Baxendale 273 Blackmore f. Bristol and Exeter Eailway Co 853 Blackmore 1'. Lancashire and Yoi'kshire Eailway Co. ... ... 295 Blake V, Midland Eailway Co 885 Blake v. Great Western Eailway Co 922 Blamires f. Lancashire and Yorkshire Eailway Co 895 Blankensee t;. London and North Western Eailway Co 123 Blosse v. Midland Great Western Eailway Company 605 Bodenham V. Bennett ... 384 Bollands v. Manchester Sheffield and Lincolnshire Eailway Co. ... 1043 Bolton r. Lancashire and Yorkshire Eailway Co 240 Bolton ^•, Midland Eailway Co 945 Bourke V, Macroom Eailway Co 944 Bourne D. Gatliffe 388 Boys V. Pink ... 42 Bradhurn r. Great Western Eailway Co. 934 INDEX TO CASES. XIU Page Bradbury V, Sutton ... 133 Bradsha-w v. Irisli North Western Railway Co. 378 Bradshaw u. Lancashire and Yorkshire Railway Co 978 Brady ■y. City of Dublin Steam Packet Co 1038 Brand v. Hammersmith and City Railway Co 609 Branley V. South Eastern Railway Co 649 Briddon v. Great Northern Railway Co, 985 Bridges V. North London Railway Co 838 Brind V.Dale ^,.. 152 British Empire Shipping Co. r. Somes 579 Britten r. Great Western Cotton Co 965 Brooke V. Pickwick ••• ... ... IH Brown r. Great Eastern Railway Co C9S Brown V. London and North Western Railway Co G70 BroAvni;. Great Western Railway Co 977 Brown I'. Great Western Railway Co t» ... G23 Brown v. Hodgson ... 392 Brunt V. Midland Railway Co „ 84 Buckman -y. Levi ... ... ... H Buckmaster r. Great Eastern Railway Co 683 Budd 1'. London and North Western Railway Co 510 Bull V. Robison 330 Burke v. South Eastern Railway Co 928 Burke r. Manchester Sheffield and Lincolnshire Railway Co. ... 80G Burn V. Cork and Bandon Railway Co. 880 Burns r. Dundalk and Newry Steam Packet Co 996 Burrell i;. North 47 Burton 1'. Great Northern Railway Co. 477 Butcher r. London and South Western Railway Co 734 Butler r. Basing 11 Butler V. Woolcott 591 Butler V. Hearne 115 Butt u. Great Western Railway Co. -.-. 92 Buxton i;. North Eastern Railway Co 924 Byrne V. Chester and Holyhead Railway Co. 1013 Cahill r. London and North Western Railway Co 742 Cailiff 1). Danvers 469 Cairns V. Robins ... ... 387 Caledonian Raihvay Co. 1). Wylie Guild 576 Candy V. Midland Railway Company 302 Cannon f. Midland Great Western Railway Co 823 Carpue r. London Brighton & South Coast Railway Co 826 Carr r. London and North Western Railway Co 418 Carr u. Lancashire and Yorkshire Railway Co. 1063 Caterham Railway Company v. L. B. & S. C, also S.E. Railway Co. 546 Chapman v. Great Western and London & North Western Railway Cos. 343 Chilton v. London and Croydon Railway Co 771 Chippendale v. Lancashire and Yorkshire Railway Co 1005 XIV INDEX TO CASES. City of Dublin Steam Packet Co. v. London & Nortli Western EaiL way Co Clarke u. Midland Eailway Co Clayton r. Hunt ,. Clegliorn r. Great Eastern Eailway Co Clewortli -y. Pickford Cliff r. Midland Railway Co Clougli V. London and North Western Eaihvay Co. ... Coates V. Chaplin ... . ... ... Cockle V. South Eastern Eailway Co Coggs r. Bernard Cohen r. South Eastern Eailway Co Coleman v. Eiches Colepepper r. Good Collard -y. South Eastern Eailway Co Collis V. Midland Great Western Eailway Co Collett V. Loudon and North Western Co. Collier v. Dublin Wicklow and Wexford Eailway Co. Collins r. Bristol and Exeter Eailway Co Colman v. Great Eastern Eailway Campany Condon v. Great Southern and Western Eailway Co. Conway r. Belfast and Northern Counties Eailway Co. Combe v. London and South Western Eailway Co. ... Coombes V. Bristol and Exeter Eailway Co. Cooper V. London and South Western Eailway Co. ... Cooper V. London Brighton and South Coast Eailway Co. Cork Distilleries Co. v. Great Southern and Western Eailway Co Cornman v. Eastern Counties Eailway Co. Corrigan v. Manchester Sheffield and Lincolnshire Eailway Co. Cort V. Ambergate Nottingham and Boston Eailway Co. Coventry V. Gladstone Cox V. Great Eastern Eailway Co. Cox V. London and North Western Eaihvay Co. Cox u. Midland Eailway Co. Coxon r. Great Western Eailway Co Crafter V. Metropolitan Eaihvay Co Crawshay V. Homfray ... ... ... ... Crisp & Thompson v. York Newcastle and Berwick Eailway Co Crofts u. Waterhouse Crouch r. London and North Western Eailway Co. . . . Do. V. do. do. do. Do. V. do. do. do. Do. V. Great Northern Eailway Co Do. V. do. do. ... Do. r. Great Western Eailway Co Cumberton v. Irish North Western Eailway Co. Camming v. Dublin and Drogheda Eaihvaj' Co. Dakin r. Oxley ... Dale V.Hall , Pago INDEX TO CASES. XV Pago Dalton -u. South Eastern Railway Co 88S Daniel v. Metropolitan Eailway Co 836 D'Ai'C r. London and North Western Eaihvay Co 320 Davey v. Mason 129 Davis V. Willan 334 Davis V. London and North Western Eailway Co 300 Davis V. Garrett 348 Davis i;. James 661 Daws V. Peck 662 Dawson v. Midland Eailway Co 1066 Dawson v. Manchester Sheffield and Lincolnshire Railway Co. ... 880 Dearden r. Townsend (Lancashire and Yorkshire) 696 Degg v. Midland Eailway Co 852 Denton v. Great Noi-thei-n Eailway Co 681 Dickenson ■?;. North Eastern Eailway Co. 976 Dimmock •!;. North Staffordshire Eailway Co 604 Diphwys Casson Slate Co. r, Festiniog Railway Co 497 Donohue a'. London and North Western Eailway Co 989 Doolan r. Midland Eailway Co 1010 Drain v. Henderson ... 986 Dublin Wicklow and Wexford Eailway Co. f. Slattery 819 Dufft'. Budd 386 Duff V. Great Northern Eailway Co 876 Dunham V. London and North Western Eailway Co 284 Dunn r. Chester and Holyhead Eailway Co 743 Dutton r. Solomonson 663 Dyson r. London and North Western Eailway Co 693 East Anglian r. Lythgoe ... ... ... Eastern Counties Eailway Co. v. Broom Edwards v. London and North Western Eailway Co... Do. V. Midland Eailway Co. Do. V. Brewer Ellis V. London and South Western Eailway Co. Do. r. Great Western Eailway Co Evans v. Bristol and Exeter Eailway Co. Evershed v. London and North Western Eailway Co. 1078 790 801 787 238 1025 921 416 565 Ealkner v. Great Southern and Western Eailway Co. Earnsworth V. Garrard Earrant t'. Barnes ... Earrar r. Adams ... Eawcett v. York and North Midland Eailway Co. Eay V. City of Dublin Steamship Co Eeise r. Wray Eennell v. Waterford and Limerick Eailway Co. Eerns & M'Cormick r. North British Eailway Co. ... Eield V. Newport Abergavenny and Hereford Eailway Co. Einlay r. North British Eailway Co 814 440 856 330 1062 985 225 1027 893 612 289 INDEX TO CASES. Finucane r. Small ... Fishbourne v. Great Southern and Western Railway Co. Fitzgerald v. Midland Eailway Co Flannery v. "Waterford and Limerick Eailway Co. ... Fletcher t;. Tayleur Flowers 1'. South Eastern Eailway Co Fogarty v. Bagnalstown and "Wexford Eailway Co. ... Ford V. London and South AVestern Eailway Co. Fordham v. London Brighton and Soiith Coast Eailway Co Foreman v. Great Western Eailway Co Foreman v. Great Eastern Eailway Co Forward 1). Pittard ... Foster V. Frampton Foulkes V. Metropolitan District Eailway Co Fowles r'. Great Western Eailway Co Foy V. London Brighton and South Coast Eailway Co. Fragano t?. Long Franklin v. South Eastern Eailway Co Freeman r. Birch Freemantle v. London and North Western Eailway Co. Gainsford ^). Carroll Gallagher v. Great Western Eailwaj^ Co. Gallin v. London and North Western Eailway Co, ... Garnett 1'. Willan Garrett r. Melhuish Garside v. Trent and Mersey Navigation Co Garton r. Bristol and Exeter Eailway Co Do. V. do. do. Do. V. do. do. Do. -u. Great Western Eailway Co Gee V. Lancashire and Yorkshire Eailway Co Gee -u. Metropolitan Eailway Co Genister v. Great Western Eailway Co Gibbes, Eir parte, re Whitworth Gibbon r. Payn ton Gibbin v. M'Mullen Gilbart v. Dale Giles V. Taff Vale Eailway Co. Gill V. Manchester Sheffield and Lincolnshire Eailway Co. Glover v. London and North Western Eailway Co. ... Glover v. London and South Western Eailway Co. ... Goddard v. London and Sotith Western Eailway Co Goff r. Great Northern Eailway Co Gogarty v. Great Southern and Western Eailway Co. Golden r. Manning Golding, Davis, & Co. v. Knight & Co Goldsmith v. Great Eastern Eailway Co. Gordon V. Great Western Eailway Co Do. do. Do. do. Do. do. Do. do. Du. do. Do. do. Do. and Met INDEX TO CASES. Xvii Page Graham I'. North Eastern Eailway Co , . 901 Great Eastern Eail way Co. v. Cobb 45 Do. do. r. Banham ... ... 4g Do. do. V. Aarons 46 Great Northern Eailway Co. 1-. Nisbet 705 Do. do. r. Hawcrof t 680 Do. do. v. Morville 1051 Do. do. V.Taylor 29G Do. do. t'. Swaffield 1071 Great Southern and Western Railway Co. t'. Eobertson 1105 Great "Western Eailway Co. V. Eimell 93 V. Goodman 719 v. Bailie 1089 V. Brentford Eailway Co. J'. Blower 1008 )'. Pocock 695 V. Eedmayne 280 and Metropolitan Eailway Cos. V. Emanuel 759 Great Western of Canada Eailway Co. v. Fawcett and Brand ... 890 Green r. London General Omnibus Co 788 Greenop v. South Eastern Eailway Co 509 Gregory 1). West Midland Eailway Co. ... ... ... ... ... 10OG Griffiths (adm.) v. London and North Western Eailway Co. ... 857 Griffiths «. Lee 407 Griffiths -y. Earl of Dudley... ... ... 945 Grote t'. Chester and Holyhead Eailway Co 885 Gwynn r. South Eastern Eailway Co. ... ... ... 707 Hadley r. Baxendale 274 Hales r. London and North Western Eailway Co. 278 Hall V. North Eastern Eailway Co. 877 Hamlin t'. Great Northern Eailway Company ... ... ... ... 687 Hanson v. Lancashire and Yorkshire Eaihvay Co 840 Harris r. Cockermouth and Workington Eailway Co. 492 Do. ^'. Great Western Eailway Co 713 Do. r. Packwood 7g Do. r. Midland Eailway Co ... .._ 1018 Harrison v. London Brighton and South Coast Eailway Co 216 Do. V. Great Northern Eailway Co. 874 Do. r. North Eastern Eailway Co 862 Han-old r. Great Western Eailway Co _ 831 Hart r. Baxendale ' ... 14Q Hart ?■. Lancashire and Yorkshire Eailway Co. ... 892 Hayes r. South Wales Eailway Co. ... ... 39 Haynes v. Great Western Eailway Co 323 Hearn r. London and South Western Eailway Co 124 Hearne r. Garton & Stone 44 Heather v. Dublin and Glasgow Steam Packet Co 36 Henderson r. Midland Eailway Co 784 xviii INDEX TO CASES. Page Hendersou r. Stevenson ••• ^21 Herschfield v. London Brigliton and South Coast Eaihvay Co. ... U79 Heugh V. London and North Western Railway Co 453 Hicks V. Newport Abergavenny and Hereford Eaihvay Co 973 Higginbottom u. Great Northern Railway Co 7-1 Highland Railway Co. u. Jackson (Nicol & Co.) 577 Hill ^'. London and North Western Railway Co 1O03 Hinde r. Liddell 369 Hinton r. Bibbin H?' Hiort r. London and North Western Railway Co .... 423 Hoare r. Great Western Railway Co 421 Hobbs v. London and South Western Railway Co 683 Hodgman V. West Midland Railway Co. 1064 Hodgson v. Loy 224 Hoey V. Dublin and Belfast Junction Railway Co 9G4 Hogan v. South Eastern Railway Co „ 816 Holderness t). Collinson ' 587 Holland v. Festiniog Raihvay Co 500 Holmes u. North Eastern Railway Co 859 Hooper v. London and North Western Railway Co 757 Horn r. Midland Railway Co 455 Horn 1). North British Railway Co 942 Howard t'. Midland Railway Co 568 Hozier u. Caledonian Railway Co. 675 Hudson -u. Baxendale 393 Hudston t;. Midland Railway Co 744 Hughes V. Great Western Railway Co 983 Hunt V. South Staffordshire Railway Co. 782 Hunt r. Great Northern Railway Co „ 1077 Hurry v. Mangles 250 Hurst r. Great Western Railway Co 689 Hutchinson 1. York Newcastle and Berwick Railway Co 956 Hyde v. Trent and Mersey Navigation Co. 382 Hfracombe Public Conveyance Co. v. London and South Western Railway 550 Ligate -y. Christie 335 Irvine V. Dundalk and Newi-y Steam Packet Co 1017 Irvine r. Midland Great Western Railway Co 370 Isaacs r. London and North Western Railway Co 294 Jackson V. Metropolitan Railway Co 869 Jacksoni;. Rogers 68 James V. Great Western Railway Co 911 James ij. Taff Vale Railway Co 1101 James V. Griffin 239 Jarnian V. Great Western Railway Co 996 Jennings v. Great Northern Railway Co. 68G Johnson r. Midland Railway Co 63 INDEX TO CASES. XIX Page Jolmsoii u. Lancasliire and Yorkshire Eailway Co 268 Do. r. Great Southern and Western Kaihvay Co. 817 Jonasshon r. Great Northern Eaihvay Co ••. 26 Jones V. Festiniog Railway Co 605 Jones v. Eastern Counties Railway Co 676 Jones r. Barkley 442 Kearney r, London Brighton and South Coast Railway Co. ... 977 Kearns v. Harper (Steamship Co.) 987 Kelly r. Midland Great Western Railway Co 785 Kendall v. London and South Western Railway Co 1059 Kent u. Midland Railway Co 735 Kerrv. Willan 309 Keys 1'. Belfast and Ballymena Railway Co 739 King r. Great Western Railway Co 861 King (The) V. Pease 608 Kingston r. Preston '^'^2 Kinnear r. Midland Railway Co 597 Kirby u. Great Western Railway Co 993 Kirkstall Brewery Co. v. Furness Railway Co. -'7 Kuverji Tulsidass v. Great Indian Peninsular Railway Co. ... 353 Laclouch r. Towle ■*18 Lancashire and Yorkshire Railway Co. v. Gidlow ••- 617 Langan r. Great Western Railway Co 936 Laugdon V. Howells <=. ... ' ^'^^ Latch t). Rumner Railway Co ••• 335 Latham r. Rutley ... 352 Lawson r. London and Southwestern Railway Co 86 Leach ■«. South Eastern Railway Co 728 Lehlanch V. London and North Western Railway Co 692 Le Conteur r. London and South Western Railway Co 760 Lee u. Cork and Bandon Railway Co ••• 879 Lee u. Lancashire and Yorkshire Railway Co 932 Lees r. Lancashire and Yorkshire Railway Co. 498 Leggott r. Great Northern Railway Co 818 Leishman r. London Brighton and South Coast Railway Co. ... 812 Le Peinteur V. South Eastern Railway Co 276 Leuckhart r. Cooper 588 Levine r. Great Western Railway Co 414 Lewis u. Great Western Railway Co 312 Do. V. do. do. 320 Do. r. London Chatham and Dover Railway Co 842 Lickharrow r. Mason ... ... ••• -^5" Lindsay r. Great North of Scotland Railway Co 349 Liver Alkali Co. r. Johnson ■'■*" Lloyd 1'. Waterford and Limerick Railway Co ... 1057 Do. r. Northampton and Banbury Railway Co 503 Lock V. North Eastern Raihvay Co 502 XX INDEX TO CASES. London Brighton and South Coast Eailway Co. r. Watson ... London and North AVestern Eailway Co. v. Bartlett Do. do. do. V. Glyn Do. do, do. V. Hellawell London and South Western Eailway Co. v. Myers Do. do. do. r. Eeeves Long V. City of Dublin Steam Packet Co Longman r. Grand Junction Canal Co Longniore v. Great Western Eailway Co. Lord i>. Midland Eailway Co Lovegrove v. London Brighton and South Coast Eailway Co. Lovell V. London Chatham and Dover Eailway Co. ... Lowman v. Dublin Wicklow and Wexford Eailway Co. Lumsden v. London and South Western Eailway Co. Lunn V. London and North Western Eailway Co Lygo ■;;. Newbold ... Lyon v. Mells M'Eride f. Midland Great Western Eaihvay Co M'Cance v. London and North Western Eailway Co M'Carthy V. Young McCarthy v. Dublin Wicklow and Wexford Eailway Co. M'Cawley V. Furness Eailway Company M'Court V. London and North Western Eailway Co M'Kean t'. M'lver M'Kenna v. Chester and Holyhead Eailway Co. M'Kinney r. Irish North Western Eailway Co. M'Laren, 633 parfc Cooper ... M'Manus v. Lancashire and Yorkshire Eailway Co M'Nally V. Lancashire and Yorkshire Eailway Co M'Queen ^'. Great Western Eailway Co Machin I'. London and South Western Eailway Co Mackenzie u. Cox Macrow u. Great Western EailAA'ay Co Maddox v. Loudon Chatham' and Dover Eailway Co Malcolmson r. Irish South Eastern Eaihvay Co Do. r. Great Southern and Western Eaihvay Co. Maljee Sewjee v. Great Indian Peninsular Eailway Co. Mallon r. Irish North Western Eailway Co Malpas V. London and South Western Eailway Co Manchester Sheffield and Lincolnshire Eailway Co. v. Wallis Do. do. do. V. Wood Do, do. do. V. Woodcock Manchester South Junction and Altriucham Eailway Co. v. Fullar Manley v. St. Helen's Canal and Eailway Co. „, Marfell !;. South Wales Eailway Co Marriott v. London and South Western Eailway Co.... Marsh V. Home Marshall r. York Newcastle and Berwick Eailway Co. INDEX TO CASES. XXI 82 989 793 363 448 Page Martin V. Great Indian Peniusular Eailway Co 341 Mathew u. Nelson Matthews I'. Dublin and Droglieda Kailway Co. MaunselU'. Midland Great Western Railway Co 1088 117 Mayhew V. Eames Meade V. South Eastern Eailway Co "'- Meagher r. Limerick and Foynes Eailway Co. 100 Menzies -u. Highland Railway Co. Mercer V. Jones • Merchant Shipping Co. V. Armitage Metcalf V. London Brighton and South Coast Railway Co 94 446 Meyer 1'. Dresser Midland Great "Western Railway Co, r. Benson 229 Midland Railway Co, v. Bromley '^^ Millen V. Brasch ^^^ Minor u. London and North Western Railway Co 667 Mitchell r. Lancashire and Yorkshire Railway Co. ... 349 Do. V. Crassweller Moffatt I'. Great Western Railway Co 1058 Molyneaux v. Irish North Western Railway Co J^ Monmouthshire Railway Co. r. Williams ... ^1^ Montgomery u. North British Railway Co ^^7 Moore v. Midland Railway Co 1009 77Q Do. u. Metropolitan Railway Co "^ Do r. Wilson ^^^^ Do. u. Great Northern Railway Co. (Ireland) 1060 Morgan v. Vale of Neath Railway Co ^^^ Morritt r. North Eastern Railway Co. ... H^ Morse V. Slue • . ^^^ Motteram r. Eastern Counties Railway Co 67G Mulliner w. Elorence ^'■'• Munster u. South Eastern Railway Co ''23 Murray u. Metropolitan District Railway Co 867 Muschamp v. Lancaster and Preston Junction Railway Co 17 Mytton r. Midland Raihvay Co ''^1 Napier r. Glasgow and South Western Railway Co. ... 1090 Naylor r. Mangles '^66 Nelson V. Mackintosh 1^* Newborn u. Just ^^ Nicholls V. Great Southern and Western Railway Co 815 Nicholson r. Great Western Railway Co. ... .' ^^'^ Do. u. Lancashire and Yorkshire Railway Co 808 Nicholson r. Willan 102 Nittshill and Lesmahagow Coal Co. v. Caledonian Railway Co. ... 496 Norman v. Phillips '1^^ North V. London and South Western Raihvay Co 573 Northampton Gas Co. v. London and North Western Railway Co.... 1093 North Eastern Railway Co. r. Richardson & Sisson 220 INDEX TO CASES. Northey I'. Field Northfield Iron and Steel Co. Midland Ilailway Co O'Hanlon r. Great Western Eailway Co. Ohrloff r. Briscall Oliver v. North Eastern Eaihvay Co , Oppenheim r. Eussell Owen r. Great Western Eailway Co Do. V. Burnett Oxlade v. North Eastern Eailway Co Paddock v. North Eastern Eailway Co Page V. Great Northern Eailway Co Painter v. London Brighton and South Coast Eailway Palmer v. London and South Western Railway Co. . Do. V. Loudon Brighton and South Coast Eailwa; Do. 17. Grand Junction Eailway Co. Pardington v. South AVales Eailway Co. Parkerj;. South Eastern Eailway Co. Do. V. Bi'istol and Exeter Eailway Co. Do. t'. Great Western Eailway Co Do. V. do. do. Do. V. do. do. ' Do. V, do, do. Parkinson v. Great Western Eailway Co. Patchell V. Irish North Western Eailway Co Patscheider v. Great Western Eailway Co Patten v. Thompson... Patterson v. Belfast and Northern Counties Eailway Peek i\ North Staffordshire Eailway Co. Pegler r. Monmouthshire Eailway Co Peudreigh u. North British Eailway Co. Pepper I'. South Eastern Eailway Co. ... Phelps V. London and North Western Eailway Co. , Do. V. Great Eastern Eaihvay Co Phillips V. London and South AVestern Eailway Co. . Do. I'. EdAvards ... Do. r. Clark Pianciani v. London and South Western Eailway Co Pickford v. Grand Junction Eailway Co. Do. r. do. do. Do. V. do. do. Do. r. Caledonian Eailway Co. Piddington r. South Eastern Eailway Co. Piggot V. Eastern Counties Eailway Co. Plant v. Midland Eailway Co. Plunkett V. Great Southern and Western Eailway Co Pollard v. London and South Western Eailway Co. Pontifex V. Midland Eailway Co.... Co. Co. INDEX TO CASES. xxiii Page Pooley r. Great Eastern Eaihvay Co 256 Pott f. London and Nortli Western Eailway Co 263 Potts r. Port Carlisle Dock and Railway Co 959 Poulton r. London and South Western Eaihvay Co 798 Powell Duffryu Steam Coal Company v. Taff Vale Eailway Co. ... 1096 Praeger y. Bristol and Exeter Eailway Co 836 Prenty r. Midland Eailway Co 1032 Prevost i;. Great Eastern Eailway Co 688 Price y. North Lancashire Steam Navigation Co. ... 1016 Pryce D. Monmouthshire Eailway Co 622 Pym V. Great Northern Eailway Co 975 Queen (The) I'. Hadfield 678 Do. V. Frere 703 Do. V. Hardy 679 V Do. V. Eastern Counties Eailway Co 1089 Do. r. liish South Eastern Eailway Co ... lioi Quiggan ^•. Duff ... . 52 Eain r. Glasgow and South Western Eailway Co 1017 Eandleson I'. Murray §51 Eausome r. Eastern Counties Eailway Co 487 Do. V. do. do. 488 Do. V. do. do. 489 Do. r. do. do. ... 4.94 Eaphael V. Pickford 293 Eead r. Great Eastern Eailway Co 93I Eeadhead V. North Midland Eailway Co. 881 Eice V. Baxendale 36g Do. I'. Dublin Wicklow and Wexford Eailway Co 612 Eichards v. London Bi-ighton and South Coast Eailway Co. ... 732 Do. r. Great Eastern Eailway Co 867 Eichardson I!. Metropolitan Eailway Co. 864 Do. V. Great Eastern Eailway Co. 896 Do. V. Goss 236 Do. r. Midland Eailway Co. ... 512. Eicketts v. East and West India Docks and Birmingham Junction Eailway Co 1023 Eiley v. Baxendale 960 Do. u. Home 104 Eoberts 17. Great Western Eailway Co. ... ... ,< 1026 Do. i?. Midland Eailway Co 996 Do. r. Eastern Counties Eailway Co. ... 929 Eobertson V. Great Southern and Western Eailway Co 1103 Do. u. Midland Great Western Eailway Co ... 535 Eobins u. Cubitt 953 Do., Ea! parte, u. London and Birmingham Eailway Co 47G Eobinson r. Dublin and Liverpool Screw Steamship Co 995 Do. V. London and South Western Eailway Co. 1070 XXIV INDEX TO CASES. Page Eobinson v. Dunmore • 347 Do. r. Great Western Eaihvay Co. 1044f Do. 2-. KnigMs 447 Robson r. North Eastern Eaihvay Co 844 Eoe V. Birkenhead Lancashire and Cheshire Junction Eaihvay Co. 797 Eogers r. Ehymney Eailway Co. .., ... 919 Eooke u. Midland Eailway Co ' .„ ... 373 Booth w. North Eastern Eaihvay Co 991 Eose I'. North Eastern Eaihvay Co 84G Eosevear China Clay Co., re Cock 246 Eoss U.Hill 145 Eowe V. Pickford 250 Eowley u. London and North Westei'n Eailway Co 939 Euddy w. Midland Great "Western Eaihvay Co. 1000 Emnsey t'. North Eastern Eaihvay Co 746 Eushforth I'. Hadfield 594 Saunders v. London and North Western Eailwaj^ Co. 974 Saunders 1'. South Eastern Eailway Co. 700 Savage v. Newry Warrenpoint and Eostrevor Eaihvaj^ Co. ... 1093 Scaife v. Farrent 342 Bchotsman i>. Lancashire and Yorkshire Eaihvay Co. 253 Scothorn V. South Staffordshire Eailway Co 262 Scott V. Dublin Wicklow and Wexford Eaihvay Co. 828 Scott u. Pettit 249 Do. u. Midland Great Western Eailway Co. ... 228 Scully r. Great Southern and Western Eailway Co 275 Searle I'. Laverick ... 4G1 Self V. London Brighton and South Coast Eaihvay Co 873 Sehvay V. Holloway 48 Seymour i". GreeuAVOod ... ... 773 Shand r. Peninsular and Oriental Steamship Co 7")0 Sharp ?;. North Eastern Eaihvay Co 298 Sharrod v. London and North Western Eailway Co 1022 Shaw u. York and North Midland Eaihvay Co. 1049 Do. w. Great Southern and Western Eaihvay Co 1040 Shepherd v. Great Northern Eailway Co. 738 Do. y. Midland Eaihvay Co. ... 815 Do. r. Bristol and Exeter Eaihvay Co. ... 1035 Sheridan v. New Quay Co 406 Shiels 1-. Great Northern Eaihvay Co 670 Do. ?;. Davis 448 Simon V. Great Western Eaihvay Co 310 Simpson r. London and North Western Eailway Co 289 Siner I'. Gi'eat Western Eailway Co 832 Singleton v. Eastern Counties Eaihvay Co 901 Siordet y. Hall 348 Skeltou V. London and North Western Eaihvay Co i)12 Skinner y. Upshaw 590 INDEX TO CASES. XXV Skinner v. Great Northern Eailway Co. Do. V. London Brighton and South Coast Eailway Co. Skip V. Eastern Counties Eailway Co Sleat V. Fagg Slim I'. Great Northern Eailway Co Smeed I? Foord Smith V. Midland, also Lancashire and Yorksliire EaUway Do. v. Great Eastern Eailway Co Do. v. London and South "Western Eailway Co. ... Do. r. Home Snead v. Shrewsbury and Hereford Eailway Co. Sneesby v. Lancashire and Yorkshire Eailway Co. ... South "Wales EaUway Co. v. Eedmond Southcote's Case Southsea and Isle of "Wight Steam Ferry Co. v. London "Western Eailway Co Spears v. Hartley Stallard v. Great "Western Eailway Co Stapley v. London Brighton and South Coast Eailway Co Stephenson ?;. Hart Stevens u. Midland Eailway Co Stevenson v. London and North "Western Eailway Co. Stewart v. London and North "Western Eailway Co. ... Stewart ?;. Great "Western Eailway Co Stockdale v. Lancashire and Yorkshire Eailway Co. ... Stoessiger v. South Eastei-n Eailway Co Stokes V. Eastern Counties Eailway Co. Storr V. Crowley Streeter v. Horlock Strick V. Swansea Canal Co. Strong V. Natally Stroyan v. Londonderry Steam Packet Co. Stuart V. Crawley Stubley v. London and North Western Eailway Co. Sutton V. Great "Western Eailway Co, Do. V. South Eastern Eailway Co Do. V. London and South "Western Eailway Co, Swain v. Shepherd Swaine v. Great Northern Eailway Co Swainson v. North Eastern Eailway Co. Sweet i;. Pym Sykes v. North Eastern Eailway Co Symes u. Chaplin Talley v. Great Western Eailway Co Teats V. Dundalk and Newry Steam Packet Co. Tebbutt V. Bristol and Exeter Eailway Co. Theobald v. Eailway Passenger Insurance Co.... Thomas v. Day Co. and South Page 978 827 958 103 1030 364 610 809 605 110 984 1028 1082 459 509 466 710 907 408 781 722 747 930 829 83 878 398 40 615 384 390 216 904 651 651 658 665 1099 969 227 940 56 762 21 812 827 464 XXVI INDEX TO CASES. Page Thomas ?;. Ehymney Kailway Co. 925 Thompson v. London and North Western Eailway Co. 564 Do. v. Midland Eailway Co 690 Do. V. North Eastern Eailway Co. 1081 Do. V. Belfast Holywood and Bangor Eailway Co 813 " Tigress," The 230 Tollemache v. London and South "Western Eailway Co. ... ... 773 Toomer v. London Chatham and Dover Eailway Co ... 1100 Tooney v. London Brighton and South Coast Eailway Co. ... ... 805 Travis t). Midland Eailway Co 1079 Tread win V. Great Eastern Eailway Co. 85 Tucker v. Humphrey 237 Tunney V. Midland Eailway Co 962 Turner t;. Great Westei-n Eailway Co 100 Do. w. Midland Eailway Co 720 Do. r. Great Eastern Eailway Co. ... 966 Upston V. Slack 55 Van Den Eynde r. Ulster Eailway Co 777 Van Toll w. South Eastern Eailway Co , 711 Vaughau y. Taff Vale Eailway Co 601 Do. V. London and North "Western Eailway Co. 95 Victoria Coal and Iron Co. v. Neath and Brecon Eailway Co. ... 501 Vose V. Lancashire and Yorkshire Eailway Co. 958 "Waite y. North J]astern Eailway Co 806 Walker J), York and North Midland Eailway Co 282 Do. w. Great Western Eailway Co 936 Do. V. Jackson 140 Wallace u. Great Southern and Western Eailway Co. 304 Do. V. Dublin and Belfast Junction Eailway Co. 125 Waller I'. South Eastei-n Eailway Co 961 Do. v. Midland Great Western Eailway Co. 1045 Wallis w. Dunnell 392 Do. V. London and South Western Eailway Co U7^-hlb Wanless y. North Eastern Eailway Co 917 Wannan u. Scottish Central Eailway Co. 541 Warburton u. Great Western Eailway Co 963 Do, y. Midland Eailway Co 866 Ward V. Kelly (see Kelly v. Mid. G. W.) 785 Waterford Central Eailway Co. and Grand Jury 1095 Watkinson u. Wrexham Mold and Connah's Quay Eailway Co. ... 621 Watson V. Ambergate Nottingham and Boston Eailway Co. ... 19 Way V. Great Eastern Eailway Co 101 Webb, Iw re 470 Webb V. Great Western Eailway Co 290 Webber w. do. do. 671 Welfare u. London Brighton and South Coast Eailway Co 811 INDEX TO CASES. XXvii Weller r. London Brighton and South Coast Railway Co 843 West V. London and North "Western Eailway Co 495 Whaite V. Lancashire and Yorkshire Railway Co ... 135 White V. Humphrey 355 Do. w. Great Western Eailway Co 284 Whitehead u. Anderson 240 Whitfield y. South Eastern Railway Co. 667 Whittaker v. Manchester Sheffield and Lincolnshire Railway Co.... 833 Wilhy V. West Cornwall Railway Co 19 Do. v. Midland Railway Co 819 Williams u. Great Western Railway Co. 920 Do. V. do. do 1081 Willis V. Great Western Railway Co 1031 Wilson V. Lancashire and Yorkshire Railway Co. ... „. ... 277 Do. V.Brett 460 Wiltshire Iron Co. v. Great Western Railway Co 598 Winkfield ■!). Packington 50 Wise V. Great Western Railway Co 1069 Wood V. Great Northern Railway Co. (Ireland) 1046 Do. V. Metropolitan Railway Co. (see Flowers v. S. E.) 85 Woodger r. Great Western Railway Co 280 Do. r. Great Eastern Railway Co. ... 508 Woodley r. Metropolitan District Eailway Co 968 Woodward V. Eastern Counties Railway Co 685 Do. V. London and North Western Railway Co. 126 Wren i;. Eastern Counties Railway Co 295 Wrexham Mold and Connah's Quay Railway Co. v. Little Mountain Coal Co 618 Wright i;. Midland Railway Co 926 Do. V. London and North Western Railway Co 862 Do. t;. Snell 595 Do. -y. Great Northern Railway Co. (Ireland) 824 Wyatt -y. Great Western Railway Co 908 Wyld V. Pickford 128 Youl V. Harbottle 417 Yorke V. Grenaugh 590 Zunz V. South Eastern Railway Co , 752 ACCEPTANCE OF CONTRACT. GENERAL. Case No. Southcote's Case (1601) 256 Morse V. Slue {1G70) 181 Jackson v. Rogers (1683) 36 Dale V. Hall {17 oO) 1 Golden v. Manning (1773)... ... 222 Forward \. Pittard (1785) ... 187 Nicholson y. Willan (I80i) ... 61 Buckman y. Levi (ISIS) 2 Butler y. Basing (1S27) 3 Riley y. Home (IS28) 64 Robins v. London and Birmingham (1839) 267 Palmer v. Grand Junction (1839) 735 Walker v. Jackson ( 1842 ) 89 Machin v. L. and S. IF. (1818)... 88 Richards v. L. B. andS. C. (1849) 454 Crouch V. Great Northern (1854) 379 Crouch V. L. and N. W. (1854)... 3S0 Case No. 4 769 687 725 254 85 Coleman v. Riches (1855) Savage v. N. and W. (1866) Page y.- Great Northern (1868)... McCourt V. L. and N. W. (1869) Heugh v. L. and N. W. (1869)... Baxendale v. L. C. and I). (1874) Southsea and I. of W. S. F. Co. V. X. and S. W. (1876) ... 292 Evershed v. L. and N. W. (1877) 328 Aberdeen C. Co. v. G. N. of S. (1878) 371 Kuverji Tulsidassy. G. I. P. (1878) 199 Waller v. Midland G. W. (1879) 733 KenVs Commentaries (Vol. 2, p. 791). Story on Bailments, section 549. Equality Clause, 17 and 18 Vic, cap. 31, sec. 2. DIGEST. In Southcotes Case (]60i) it was decided that if goods were delivered to be kept safely though the Defendant (as a carrier) had been robbed of them, " detinue " would lie against him, for he must take his remedy against the thief or the hundred - (district) as he can. But if the goods were delivered to the Defendant (as a warehouseman) to take care of them as his own goods, &c., if he be robbed of them that is a good plea. This defines the difference l)etween a carrier for hire and a bailee or ware- houseman. 2 ACCEPTANCE OF CONTRACT. In Morse v. Slue (lero) a package containing u great sum of money was delivered to a carrier and contents declared as " Silk," The carrier was robbed, but was still held responsible for the loss. In Jackson v. Rogers (i683) Chief Justice JefFeries held the carrier was bound to carry, on it being proved that he had the convenience. In Dale v. Hall ci750) Chief Justice Lee held that the carrier was a common carrier and not a special carrier, and consequently was bound to deliver safely. In Golden v. Manning (i773) Justice Gould said — "There is no occasion to enter, as has been done at the bar, into the general question of the duty of common carriers, though it is held in Owen^ 57, that all carriers are liound to deliver as well as to carry the goods." In Forward v. Pittard (i785) twelve pockets of hops had been accepted at Weyhill, where an annual fail- is held, to carry to Shaftsbury by road. The hops were stored by carrier in a booth, the booth took fire from a neighbouring booth, and the hops were burnt. Lord Mansfield held that the contract of carriage had commenced, that the carrier was an insurer, that the fire was not by lightning or the act of God, and that the carrier was responsible. In Nicholson v. Willan (1804) it was a case where goods valued at £58 were lost, and the value was unde- clared, while the carrier's notice as to goods over £5 was proved. Lord Ellenborough laid down the law very clearly as to special acceptances (see Report). In Buchnan v. Levi (isis) Lord Ellenborough said — " But no receipt was taken for the chairs, they were not booked, and no person belonging to the wharf is fixed with a privity of their being left there. The Plaintifi" was bound to procure them to be booked, or to deliver them to the wharfinger himself, or person who can be proved to be his agent for the purpose of receiving them." AGCEPTA>'CE OF CONTRACT. 3 In Butler v. Basing (I827) a box instead of being delivered at the Coach Office was delivered to the carrier's waggoner and was lost. Baron Garron told the Jury that delivery of a parcel to any of the meanest of the carrier's servants is quite sufficient, provided that servant in receiving parcels, &c., be acting by the authority or with the assent of his master. But it is equally clear that if persons be foolish enough to send parcels by the waggoner for hire paid to him, which is never 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. Verdict for carrier. In Riley v. Home (i828) it was laid down by Chief Justice Best in a very elaborate Judgment— (1) that the senders are liable to declare contents and value of goods in packages, (2) that a carrier is an insurer and may charge for such insurance over and above his labour and expense, (3) that a carrier can refuse goods if he has not room, (4) that a carrier can refuse a package of goods if the sender refuses to tell him its contents. In Palmer v. Grand Junction (1839) Baron Parke held that " If the Company choose to carry and do not take care to accept the goods with a limited responsibility (of which we are to assume there is no evidence in the present case), then the question is whether the common law liability is not cast upon them, and I am of opinion that it is." In Rohins v. London and Birmingham (i830) Plaintiff applied to the Company to have their goods carried in the Company's carriages. The Company refused, although the Company had entered into arrangements with another firui of carriers to convey their goods only. Messrs. Robins applied for a mandamus. Justice Patteson said — "A mandamus, if granted at all, must be to do something Avhich the Company are required to do by the Act of Parliament, not something which they are recjuired to do by the general law of the land. Now it is admitted that there is no clause in the Act requiring the Company to take the goods of all 4 ACCEPTANCE OF CONTKACT. persons who present them for conveyance in the car- riages of the Company, and indeed the Act seems rather to negative such an obligation. The 171 Section authorises all persons to use the railway with carriages properly constructed on payment of certain rates, and it seems therefore that the present applicants may make carriages of their own, and may require the Company to allow them to be conveyed along the railroad. By 174 Section the Company are empowered^ not required^ to provide locomotive engines, or other power for drawing things along the railway, and may recover such sums of money for the use of them as they think proper, in addition to the other rates authorised to he taken. It seems, therefore, that it was not intended by the Act to compel the Company to take all goods of all persons which might be offered to be conveyed. The argument next is that the. Company have held themselves out to the world as common carriers, and that therefore they are within the general law, and are obliged in conse- quence to carry all goods if they have room and means, and that therefore they have no right to do so great an injury to one set of carriers as to refuse their goods, and to take the goods of others. It is agreed that that cannot be done by the general law of the land, but a breach of the general law is the subject of an action. The Court will never grant a mandamus to enforce the sreneral law of the land, which may be enforced by an action. In Walker v. Jackson (1842) Baron Parke said — "I take it now to be perfectly well understood according to the majority of opinions on the subject, that if anything is delivered to a person to be carried, it is the duty of the person receiving it to ask such questions about it as may be necessary. If he ask no questions and there be no fraud to give the case a bad complexion on the delivery of the parcel, he is bound to carry the parcel as it is." In Machin v. London and South Western (i848) the Company's carting agent's carter stole a bale of silk ACCEPTANCE OF CONTKACT. 5 value £150. Chief Baron Pollock said—" Chaplin & Home must be considered as the servants of the Com- pany, and anybody whom Chaplin & Home employed for the purpose of delivering these goods were also the servants of the Company, and it makes no difference that by reas.on of some contract between the Company and Chaplin & Home the Company have not the power of dismissing such servant." This decides the question that a carting agent's carter going round with a collect- ing cart binds the Company by his acceptance of the goods. In Richards v, London Brigliton and South Coast (i849) Chief Justice Wilde said — "The duty of common carriers in the common course 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 non-delivery." In Crouch v. Gi^eat Northern (1854), and other packed parcel cases, it was held that railway com- panies are bound to receive "packed parcels" from intercepting carriers and charge them at the same rate as they do packages containing " enclosures " from the large London city houses. In Crouch v. London and North Western (1854) Chief Justice Jervis said — "No authority has been cited to show that a carrier is entitled in every case to know the nature and quality of the goods tendered to him to be carried ; and on looking at the other provisions of the Act of Parliament there seems to be no reason why the Company should make the inquiry. With reference to dangerous articles, they are entitled by the Act to know the nature and quality, and such must be discovered to them at the time of the delivery ; and if the Company sus2}ect articles to be of a dangerous nature they may open the packages." In Coleman v. Riclies (i855) a carrier's clerk issued a receipt for fifty-eight sacks of wheat he never received, with intent to defraud. On the faith of the receipt 6 ACCEPTANCE OF CONTRACT. Coleman paid to a third person the value of the wheat. Chief Justice Jervis held the clerk had authority on the evidence, only to give receipts for goods which were in fact delivered. Here the servant was not acting in the due course of his business or professing so to do. He did not act for his master but in con- travention of his duty to hiin and against his interest. Judgment for carrier. In Savage v. JVeiviy and Warrenjwint Railway (isgg), which was a Quarter Sessions case, the Company owing to a press of traffic could not supply waggons for conveyance of coal. The Court held — (1) There being no contract with Plaintiff the Company had a right to make the choice in giving the preference. (2) If there had been no other coal to be carried then the Company would have been liable. (3) There was no general refusal on Company's part, ])ut a refusal under special circumstances. In Page v. Gi'eat N'ortherit (iscsj cattle were de- layed. It was the usage of the Company to register cattle at the time taken into their yard in Dublin, and the cattle were shipped in turn as registered. Between 3 and 4 a.m. on a Sunday morning cattle were brought to the yard, and the Company's night porter, who was ill, told Plaintiff's man through the bedroom window he could not then let the cattle in, but said they had better be taken to grass and they should be registered at that time (3 a.m.) to take turn for shipment. They were not shipped in this turn. It was held the man was acting within the scope of his authority, and that what had occiu'red was equivalent to acceptance of the cattle at the particular time tendered. Verdict, £50 against Company. In M^ Court v. Loudon and North Western (i869) two bullocks out of 31 bullocks died on the voyage, Dublin to Liverpool, en route to Leicester. It appeared the bullocks were shipped in a hurry at Dublin by the City of Dublin Company's Steamships and were not booked. xVt Liverpool the London and North Western ACCEPTANCE OF CONTRACT. Company booked twenty-nine bullocks, Duhlin to Leicester, and took the carriage. The Court held the London and North Western Company were rightly sued for the two dead bullocks, and gave; a Judgment against that Company for their value. In Heiigh v. London and North IVestern (18G9) Baron Martin said — " If a person undertakes the duty of a carrier there is a most onerous duty imposed upon him. He becomes in j)oint of fact an insurer, and when he has done all he has contracted to do as carrier that condition ceases, and he may be in condition of a man with goods forced upon him, and that imposes upon him the duty of acting as a reasonable and prudent man would do." In Baxend(de {Fickford cj- Co.) v. London Chatham 'CE OF COME ACT. 23 pencil were a mere memorandmn of the address of the person and not an alteration of the contract. In Jonassohn v. Great Northern (1854) a written agreement had been made for transit of full trains of coal from Usworth to London, but there was a stipula- tion in the agreement that the Y. N. & B. Company should haul the full and empty waggons from Usworth to York. Baron Piatt held that this stipulation limited the Great Northern Company's contract to between York and London. In Collins v. Bristol cf- Exeter (1859) Lord Chelmsford in the House of Lords held against the Company, that the contract (as Avorded) did not exempt the Company fi'om a through contract, Bath to Torquay ; that the conditions the Company relied upon only related to the delivery of goods at the end of their line, in fact the local deliver}', and did not exempt them from the through contract. Lord Wensleydale said it Avas an ill- penned contract, and it was not surprising that those whose duty it is to construe it should form different opinions upon its meaning. This Judgment does not go the length of deciding that a first carrier may not by some such notice limit his liability to his OAvn terminus, although accepting the carriage for the through journey. In fact the Exchequer Chamber ruled in the Company's favour, but the House of Lords reversed that decision, thereby supporting the case of Muschamp V. L. cj' P. In 3[i/tto)i V. 2fi.dlaiid (1859) an ai'tist booked through l)y Soutli Wales Railway Company from NcAvport to Birmingham. His portmanteau was lost after receipt at Gloucester by Midland Company. The Court held that the through contract Avas made Avith the South Wales Company. Baron Martin said — " Seeing that the South Wales Railway Company's Act had a proAdso that a passenger takes his luggage at his OAvn risk, an action Avould not have succeeded against that Com- pany." Judgment for Midland Company. 24 ACCEPTANCE OF CONTRACT. In Hayes v. South Wales (isso) j^igs were delayed, Cork to London, owing to hazy weather. A Mr. Redman owned the steamers running from Cork to Milford Haven, and over the door of his office was a sign-board, and " South Wales Railway Company's Office " painted on it. The Court held that the South Wales Company were liable for a through contract and were rightly sued. In Co.xon V. Great Western (i860) the decisions in Muschamp v, L. and P., and Collins v. Great Western were upheld. The contract was held to be a through contract made with the Shrewsbury and Hereford Company, at Craven Arms, for carriage of cattle to BirmiTigham. Although the cattle were injured in a defective waggon belonging to the Great Western Company^ and although there was a condition by the Shrewsbury and Hereford Company disowning a through contract, ' Baron Bramwell held that damages could not be re- covered from the Great Western Company, they not being the contracting company. In Aldridge v. Great Western (1864) it was a case where empty fruit hampers, Hereford to Tiverton, had been carried free. The Company's terminus was Gloucester, and the hampers were lost on the Midland Railway between Gloucester and Bristol. A carrier, Smith, who signed the Company's conditions, was held to be an agent for both sender and consignee. Chief Justice Erie held it was not a through contract, saying — "To stipulate that under these circumstances they shall not be responsible for loss or delay on the further line seems to us just and reasonable." In Stevenson v. London and North Western (isez) a through ticket was issued at Londonderry for Birming- ham by the Northern Counties Railway, and there was a notice at the back of the ticket limiting the liability of the Northern Counties Company to their own terminus at Belfast. Plaintiff's trunk was lost on the London and North Western Company's line. Chief ACCEPTANCE OF CONTRACT. 2o Justice Monaghan held for the purpose of the motion, that the Northern Counties Railway were acting as the agents of the London and North Western Company in issuing the through ticket. In Malton v. I. X. W. (isro) a waggon of cattle was booked at Enniskillen to Clones Junction, and paid for to Clones. On the cattle ticket Avas written "for Lisburn." There was delay at Clones, from Avhence the cattle went forward by Ulster Railway. The Chief Justice held the contract was only to Clones and gave Judgment for Company. 9. Fmvles v. Great Western Raihvay Company. — Action for value of a case of glass, broken at Brompton when being lifted from carrier's cart — Bristol to Paddington. The case turned upon whether the Company contracted to carry Bristol to Paddington, or Bristol to Brompton. The Plaintiff filled up and signed one of the Company's usual consignment notes : " From what Station " — Bristol ; " To what Station " — Paddington; "Xame and address" — W. H. Forbes, 19, Mont- 'pelier Roiv, Brampton. The address was written afterwards in pencil. The 7th and 10th conditions of carriage at back of Company's receipt were as follows : — " 7. The Great Western Company give public notice that all goods received by the Company within the Hmits of their local regulations for conveyance on their railway will be received and booked -without charge for collection, and that all goods addressed to consignees resident within the limits of delivery from the Company's goods station, and respecting which no direc- tions to the contrary shall have been received, will be delivered without any additional charge by the Company at 'those places."' "10. That all goods addressed to consignee's residence beyond the imme- diate vicinity of the Company's goods store, and respecting which no directions to the contrary shall have been received previous to arrival at the station house, will be forwarded to their destination by public carrier or otherwise, as oppor- tunity may offer ; or they will, at the discretion of the Company by whom they have been received, be suffered to remain on the Company's premises, or be placed in shed or warehouse, if there be convenience for receiving the same, pending communication with the consignees, at the risk of the ownei-s. But the charges of such carrier will be added to those of the Company, and the delivery of the goods by the Company will be considered as complete, and the responsibility of the Company will be considered to have ceased when such 26 ACCEPTANCE OF CONTRACT. carrier shall have received the goods for further conveyance. And the Com- pany hereby give notice that any money which may be received by them as payments for the conveyance of goods by other carriers beyond their own railway will.be received only for the convenience of the senders, for the purpose of being paid to such other carriers, and will not be received as a charge by the Company upon the goods in the capacity of carriers beyond the extent of their own railway. And the Company hereby give notice that they will not be responsible for any loss, damage, or detention that may happen to goods so sent by them, if such loss, damage, or detention occur beyond the limits of their respective railways." The case of glass was safely handed at Paddington to Sherman, a carrier appointed by the Company, for delivery to Bronipton ; the carriage charged by the Company included the carriage from Paddington to Brompton. The case was first tried at Bristol Summer Assizes,1851,before Lord Chief Justice Campbell, who left the case to the Jm-y, and a verdict was found for Plaint ifl". The Company appealed, and on the appeal case Baron Parke said — " I am in favour of the Company, and of the same opinion as the Chief Baron. There is clearly a variance in the description of the place at which the goods were to be delivered. The declaration states that the Company as common carriers undertook to carry the goods from Bristol to Brompton. The contract which depends upon the terms of the receipt note is a contract to carry from Bristol to Paddington. The terms are clear and distinct. The only difficulty arises from the insertion in pencil of the address of the consignee, the person to whom the goods were to be delivered, which is at a place beyond the limits of the railway terminus. But then in the receipt note, imder the head of ' To what Station ' tliere is ' Paddington,' and one of the conditions on the other side of the receipt note is that the Company are not to be responsible for the carriage of the goods beyond the limits of their stations. It seems to me that the words in pencil are a mere memorandum of the address of the person for whom the goods are to be carried, and not an alteration of the contract." Chief Baron Pollock, Baron Piatt, Baron Martin concurred. Judgment for Company. — Tried in CouH of Exchequer, April 15, 1852. — Laiv Journal Reports, vol. 22, page 76. 10. Jonasshon v. Great Xorthern Raihvay Company. — Action for delay in the carriage of coals in train loads. The ACCEPTAJSCE OF CONTRACT. 27 Great Northern Company, by written agreement, undertook to carry the coals from Usworth Colliery, on the York, Newcastle, and Berwick Eailway to London, and to supply waggons for the through journey ; but the agreement stipulated the condition that the York, Newcastle, and Berwick Company should haul the full and empty trains between Usworth and York. The York, Newcastle, and Berwick Company failed in this duty on their portion of the jom-ney, and Plaintiff contended the Great Northern Company were responsible for the through journey and the consequences of the failure. Baron Piatt said — " The Company in the first place agree to cany from the colliery to London. That standing alone would make them liable, but the contract goes on to show that there is a distinction to be taken between ' carrying ' and ' hauling.' The Company, in one sense, carry the whole way by providing the carriages, but another Company is to haul part of the way. If any doubt could exist on tlie first part of the contract it is removed by the subsequent express condition, making the basis of the contract the conveyance by the York, Newcastle, and Berwick Company." Judgment for Company. Chief Baron Pollock and Barons Parke and Anderson concuiTed. — -Tried in CouH of Exchequer, Nov. 20, 18.54. — From Laiv Journal Reports, vol. 24, page 31. Ex. 11, Collins V. Bristol and Exeter Raihuay Company. — Action for £3oO, the value of a van of sundry luggage and sundry fm-niture burnt on a truck on a siding at Exeter cause of fire unknowna — Bath to Torquay. The Plaintiff, a carrier who was conveying the van in his own name for Greneral James, signed a note at Bath as follows : — " Received the undermentioned goods from R. C. Collins, to be conveyed by Crreat Western Railway Company on the conditions stated on the other side." No. 4 of the conditions wa.^ that the Company would not be answerable for the loss of or for damage to any goods arising (inter alia) from fire, civil commotions, or the act of God. No. 10 condition. — "AH goods addressed to consignees beyond the limits of the Companj''s local regulations for the delivery of goods from the different stations on the railway, and respecting Avhich no directions to the contrary shall have been received previous to arrival at the station, will be forwarded to their destination by public carrier, or otherwise, as opportunity may offer. 28 ACCEPTANCE OF CONTRACT. That the charges for such carrier will be added to those of the Company, and the delivery of the goods by the Company will be considered as complete and the responsibility of the Company will be considered to have ceased when such carriers shall have received the goods for further conveyance, and that any money which may be received by them as payment for the conveyance of goods by other carriers bej'ond the said limits would be so received only for the convenience of the senders, for the purpose of being paid to such other carriers, and would not be received as a charge made by the Company upon the goods in the capacity of carrier beyond the extent of their own railway. And the Company hereby give further notice that they would not be responsible for any loss, damage, or detention that may happen to goods so sent by them if such loss, damage, or detention occurred beyond their own limits." To reach Torquay the van had to pass over the Hnes of three different Companies. (1.) The Grreat Western from Bath to Bristol. (2.) The Bristol and Exeter, Bristol to Exeter. (3.) The South Devon, Exeter to Torquay. The carriage for the whole journey to Torquay was paid at Bath to the Great Western Company. The case was first tried at the Wells Summer Assizes, 1855, before Justice Williams, the Jury found there was no negligence, but a verdict was entered for Plaintiff for £350, the Judge reserving the question on the fifth plea re- lating to tlie Great Western Company's not having undertaken a through contract. It was agreed to raise no objection as to the Company having been sued instead of the Great Western Company. On the appeal case, tried in the Court of Exchequer, Feb. 20, 1856, Baron Alderson gave Judgment. The Court held that the contract for the conveyance was one contract, and that it was made with the Great Western Eailway Company, and that there were not three separate contracts with the three Companies. The case was decided in exact conformity with the Judgment of the same Court in the case of Muschamp v. Lancaster and Preston Junction Raihvay Compa.ny. We therefore think no action is maintainable against any of the Companies, and a non-suit ought to be entered. The Company then appealed to the Exchequer Chamber wlien the previous Judgment was reversed, and Judgment given for the Plaintiff. Justice Crompton, said : — " We cannot agree with the Exchequer Court that the case falls within the principle of the cases where a railway company receives goods for carriage to a place beyond their own line, and are therefore liable for losses on the further line, the Company on such line in effect canying ACCEPT AKCE OF CONTRACT. 29 as their agents or sub-contractors, and the Exchequer Court assuming this to be the case, treated the stipulations in the 10th condition as repugnant and void. The receipt and 10th condition appear to us expressly framed to prevent the Great AVestern Company from being in the relation of can-iers on the further line. The construction we put upon the 10th condition is that they, the Great Western Company, will not be carriers beyond the extent of their own railway, but that they will receive the entire sum to pay themselves as carriers on their own line, and then will, as forwarding agents, pay the residue, after their own charge, to the next railway or other carrier, being responsible as carriers no further than the extent of their ovra line. We think that, by the 4th condition (as to fire), the Great Western Company only stipulated as to their own individual responsibility. The Court cannot extend the Great Western Company's contract to the new contract under which the Defendants (Bristol and Exeter Company at Bristol) received the goods. It lies on the Defendants to make out a special contract as to the responsibility on their line, and we think that they fail in attempting to do this. It was said by the Court below the agreement was express by the Great Western Company to cany to Torquay, but the word 'sent' appears probably to have been substituted for the words ' canied ' and ' conveyed ' for the purpose of avoiding the consequences of the decisions in Muschamp v. Lancaster and Preston Railway and other cases of that description, and the expression ' sent ' is not in the sense we attribute to it repugnant to the stipula- tions in the 10th condition. One Company may receive and carry for the same rate, with exceptions (special conditions), which another Company may think it better for their own interest to dispense with. The Defendants were bound to make out the goods were to be received and carried on their line on a special contract, excepting losses by fire, and we think that they have failed in so doing. We have no evidence what were the terms on which the goods were to be carried on the Defendants' line, and we must therefore treat them as received to be carried by the Defendants as common carriers, and, consequently, in the absence of a special contract of exemption, subject to responsibility for the loss from fire. We think. 30 ACCEPTAiVCE OF CONTRACT. therefore, that the Judgment of the Court of Exchequer must be reversed, and that the verdict should be entered for the Plaintiff for the damages found for him at the trial." — Tried in the Court of Exchequer Chamber, Nov, 29, 1856. — From Laio Journal Reports, vol. 26, page 103. The Company appealed to the House of Lords and suc- ceeded in reversing this decision. Lord Chelmsford said — " I have come' to the conclusion that the Judgment delivered by the Court of Exchequer was correct, and ought to have been affirmed. Is there anything in the special terms of the con- tract made at Bath with the Grreat Western Kailway Company which excludes the application and authority of that case (Mtischamp v. Lancashire and Preston Junction Raihvay Company) ? The question turns upon the true meaning of the 10th condition. It is said that this condition expressly exone- rates the Great Western Eailway from liability beyond the limits of that Company's own railway, but I cannot understand this to have been its object or to be its effect. It appears to me rather to contain provisions for the delivery than strictly speaking for the carriage of goods. The 7th condition states the mode in which the Company will deliver goods from the different stations on the railway addressed to places within the limits of the local regulation for delivery. The 10th condition then proceeds to deal with the subject of goods addressed to consignees beyond the limits of the Company's local regulations for delivery of goods from the different stations on the railway. After stating that they will be forwarded to their destination by public carrier or otherwise as opportunity may offer, or be warehoused at the discretion of the Company, it goes on — ' But the charges of such carrier will be added to those of the Company and the delivery of the goods by the Company will be considered as complete, and the responsibility of the Company will be considered to have ceased, when such carriers shall have received the goods for further conveyance.' So I think there can be no doubt that this condition relates to w^hat may be properly termed the delivery of the goods. But it proceeds — ' And the Company hereby further give notice that they will not be responsible for any loss, damage, or detention that may happen to goods so sent by them if such loss, damage, or detention occur beyond the said limits.' ACCEPT AJfCE OF CONTRACT. 31 " These last words clearly mean beyond the limits of the Company's local regulations, and ' beyond the extent of theii- own railway,' which also in this 10th condition means beyond those stations upon the railway from which the goods are forwarded for delivery by pubHc carrier or otherwise ; and the last passage in the condition exonerating the Company from liability for loss which I have just read does not extend to the provision farther. The words 'goods so sent by them' can .only refer to goods sent, as previously mentioned, for delivery. And again, the words 'beyond their said limits,' ax)ply (as before) to the limit of the Company's local regulations. " This condition, therefore, appears to me to have no applica- tion at all to the j)resent contract, which is for the conveyance of goods that are to be sent by the Great Western Eailway to H place on the line of another Company. That the 10th con- dition was considered to be inapplicable to the contract appears from this, that the charges of the carriers beyond their own limits were not added to those of the Company, but the whole amount is charged by the Great Western Eailway Company for the entire journey — Bath to Torquay, and is styled ' the Com- pany's charges.' Considering that the charges upon the other lines may possibly not be the same as those on the Great Western Eailway, this appears to be a strong circumstance to show that the Great Western Eailway Company took upon itself the whole duty of conveyance of the goods to Torquay. If the true meaning of the 10th condition is that which I have stated, then there is an express contract with the Great. Western Eailway Company for the conveyance of the goods from Bath to Torquay. The case of Muschamp v. Lancaster and Preston Junction Railway Company exactly applies." The Lord Chancellor then commented on the fact of the same truck and guard of the Great Western Eailway Company going beyond Bristol with the van. He then says — " I think, there- fore, the contract was entire, was for the whole journey from Bath to Torquay, was made with the Great Western Eailway Company alone, that the goods were carried on the Defendants' railway under the contract, that the Defendants are consequently either not liable at all as no agreement was entered into with them, or that if the contract in any. way attaches to them the 32 ACCEPTANCE OF CONTRACT. exception as to loss by fire accompanies it and exonerates them from liability. In my opinion the Judgment of the Court of Exchequer Chamber ought to be reversed, and the Judgment of the Court of Exchequer affirmed. I may add that my noble and learned friend Lord Brougham, who heard the whole of the argument agrees entirely in this opinion." Lord Cranworth concurred. Lord Wensleydale concurred and said — " It is an ill- penned contract, and it is not surprising that those whose duty it is to construe it should form different opinions upon its meaning." Lord Kingsdown concurred, but said — " the case.seems to depend entirely on the construction to be put by the Court on a written contract, and as to that, although not without some hesitation, I acquiesce in the view which has been taken by my noble and learned friends." Judgment for Company. — Bristol and Exeter Railway Company v. Collins. Tried in House of Lords, Feb. 14, 15, June 11, 27, 1859. From ClerUs House of Lords Cases, vol. 7, page 194; also Law Journal Reports, vol. 29, page 41, House of Lords. "12. Hayes v. South Wales Railway Company. — Action for £474 13s. 4d., value of 100 pigs shipped by Plaintiff at Cork to be sent to INIilford Haven, and thence to London by the South Wales and Grreat Western Eailways. Owing to hazy weather the steamer from Cork could not make Milford, and ultimately put into Dublin. Several of the pigs were dead, and the rest being in a • maimed condition, had to be killed, and the carcases were sold for whom it might concern. It appeared in evidence, that over the door of the steam packet office in Cork where the freight had been paid, a sign-board was fixed with the words, " South Wales Kailway Company's Office " painted upon it, and a smaller one over the entrance to the cattle-yard adjoining. The freight receipt note was also headed with the words, " The South Wales Steam Navigation Company." It was also proved by jiersons who had sent cattle to London, that they had been forwarded for freights paid at this place, and that claims made upon the South Wales Com- pany had been discharged at the office in Cork by the shipping agent. Mr. Redmond proved that the steamer was his property, that the shipping agents were paid by him, and that the words ACCEPTA^TE OF CONTRACT. 33 painted on the boards referred to him, and were not sanctioned by the Kailway Company. He did admit having made an agreement with the latter for running his boat in conjunction with their line, and dividing the through freights. Held, that upon the above evidence the Judge was bound to have directed the Jury to find that the Company were joint contractors with Redmond in respect of the entire journey, and were accordingly liable for breaches of contract alleged to have been committed in the conveyance of the pigs by steamer from Cork to Milford. Held also, that independently of the written agreement there was evidence to go to the Jury of said joint liability. Held, that in respect to the sum of money realised by the sale of the carcases of the pigs destroyed on the voyage, the Company were Hable for such money in an action for money had and received. Judgment against the Company. — Tried in the Court of Gommon Pleas, May and June, 1859. — From Irish Common Law RepoHs, vol. 9, page 494. 13- Goxon V. Great Western Railway Company. — Action for death of one beast in transit and injury to several others by their having got their legs through holes in the bottom of the truck — Craven Arms to Birmingham. Plaintiff loaded the cattle at Craven Arms Station, on the Shrewsbury and Hereford Eailway, into two trucks, one truck (the defective one) belong- ing to the Great Western Eailway Company (Defendants). One of the conditions on the cattle ticket, signed by the Plaintiff, was : " For the convenience of the owner the Com- pany will receive the charges payable to other Companies for conveyance of such cattle over their lines of railway, but the Company will not be subject to liability for any loss, delay, default or damage arising on such other railway." On arrival of the injured cattle at Birmingham (Great Western) the Plaintiff at first refused them, but on an under- taking from the Company's representative that acceptance of the cattle should not prejudice his claim, he accepted them and estimated his loss at £41. The first trial was at Warwick before Chief Justice Erie, who held that there was no evidence of a contract with the Defendants, and directed a verdict for Company, with leave to Plaintiff to move. At the appeal case 3 34 ACCEPTAJSTE OF CONTRACT. Baron Bramwell said — " I think our Judgment must be for the Company. There is no evidence of any contract with the Great Western either at Craven Arms or at Shrewsbury. The 4th condition cannot be distinguished from the corresponding one in Collins v. the Bristol and Exeter Railway Company, (33 Law Times Report, 287.) The Shrewsbury and Hereford say, indeed, they will not be responsible for any loss beyond their own line, but they do not say they will not carry. There is nothing in the condition to qualify the prior contract between Plaintiff and the Defendants. The declaration is not proved as it stands, and could not be proved even if amended by alleging a contract to carry from Shrewsbury to Birmingham. No doubt it is very inconvenient that persons should be met by such a defence as this, and perhaps an Act of Parliament may be passed to remedy the evil." Barons Martin and Channell con- curred. — Tried in Court of Exchequer, February 10, 1860." — From Laiv Times Reports, vol. I, 442. 14. Aldridge v. Oreat Western Railway Company. — Action for a quantity of empty fruit hampers, Hereford to Tiverton. The hampers were carried full from Tiverton to Hereford. They were delivered to the Company at Hereford by Smith, a carrier, who was held by the Court to be an agent for both sender and consignee. Smith signed the Company's usual conditions of carriage. The hampers were carried free, and were booked from Hereford to Bristol only. The Company carried the hampers safely to Gloucester and there handed them over to the Midland Eailway Company, but they never reached Bristol. The Company's conditions as affecting this case are — (1) The Company will not be answerable for the loss or deten- tion of or damage to wrappers or packages of any description charged by the Company as empties. (2) Nor in respect of goods destined for places beyond the limits of the Company's railway, and as respects the Company their responsibility will cease when such goods shall have been deUvered over to another carrier in the usual course of further conveyance. Any money which may be received by the Company as pay- ment for the conveyance of goods beyond their own limits will be so received only for the convenience of the senders, and for ACCEPTANCE OF CONTKACT. 35 the purpose of being paid to the other carrier. (3) The Company will not be liable for any loss of or injury to articles except on proof that such loss or injury was occasioned by the neglect or default of the Company or its servants. The Company contended that they carried the hampers free and that the special contract made with Smith, an authorized agent of sender's, relieved them of liability. The Plaintiff contended the Company were not gratuitous carriers. Part of the consideration price charged on the full goods is the carriage of the empties back to the place from whence they were sent, being one entire contract. The case was first tried at the London Sittings after Trinity Term, 1863, before Justice Byles. The Jury found for Plaintiff £20 damages. The Company appealed. The Court were to draw inferences of fact, but the power of amendment was reserved. On the appeal case Chief Justice Erie gave Judg- ment, saying — " It will be unnecessary to discuss the 1st con- dition (of the special contract) if the second is legal, but as to the 1st condition we may observe, that we are by no means prepared to accede to the suggestion that because no charge is made for the return of the empty packages, therefore the Com- pany necessarily convey them gratuitously. The Company may justly be considered as having had the carriage of the empties prepaid in the shape of the previous payment for the carriage of the same packages when full, including an obligation on the Company to carry the empties back without further charge. We are, however, of opinion the 2nd condition is legal, and does protect the Company. The Company do not thereby attempt to protect themselves from injuries or delay happening on their own line or through the negligence of themselves or their own servants, or even on a further line where they have received any compensation for carriage on that further line. The Company receive the money for the purpose of being handed over to the further carrier. The Company, therefore, when they forward goods on a further line have no control, and receive no payment (on own behalf). To stipulate that under these circumstances they shall not be responsible for loss or delay on the further line seems to us just and reasonable. Suppose the further railway had been paid in money by the Defendants for carrying the empties, then the Company, though they might 36 ACCEPTANCE OF CONTRACT. have received, yet they would retain no value for the transit on the further line. There was in this case a protection afforded to the Company by a reasonable condition contained in a signed contract within the true meaning of the Kailway and Canal Act as interpreted by the House of Lords in Peek v. North Stafford- shire.^^ Judgment for Company, reversing previous verdict. — Tried in CouH of Common Pleas, Jan. 20, 1864. — Law Journal Reports, vol. 33, page 161. 15i Heather v. Dublin and Glasgow Steam Packet Com- paoiy. Claim £5, boots stolen from a box — Dublin to Aberdeen (for Nairn). Company had no notice of trial, and making no appearance, Plaintiff obtained a verdict. — The Company ap- pealed to Queen's Bench, and the case was tried before Justice Fitzgerald, 19th November, 1875. Company then put in their advertised conditions of carriage — " If goods, live stock, &c., are, for the convenieiice of shippers or consignees, booked through or addressed for any place beyond the port of the vessel's destination, the Company shall not be held accountable for any loss or damage to same, or for any delay in trans- mission or delivery, or be in any respect liable for any loss that may happen to them after being landed on the quay or wharf at the port of destination." The Company produced the receipt of the Caledonian Kailway Company to whom they delivered the box. The Judge, after examining the receipt, reversed the Eecorder's decree. — h'ish Clearing House Reports. Tried before the Recorder in Dublin, and siibsequently in Queen^s Bench, Ireland. ACCEPTANCE OF CONTRACT. 37 Implied Special Contract. — Acceptance with an Injunction FROM Sender that the Goods must be Delivered before a Particular Time for a Particular Event, AS A Race Meeting, Show, or otherwise. Streeter v. Horlock (1822) Anderson v, C. and H. (1853) .. Snmdy.S.andH.{\^^b) .. .. 6'ee V. Lane, and York. (1860) .. Hales V. L. and N. W. (1863).. CaBe No. 16 730 677 140 142 Sharp V. North Eastern (1866) ... Woodger v. Great Western (1867) Horn \. Midland (1872) Cork D. Co. V. G. S. Sf- W. (1874) Simpson v. L. and N. W. (1876) Case No. 159 144 255 227 151 DIGEST. In Streeter v. Horlock (I822) Justice Park held that the notice to make delivery at a particular time, and the assent to do so constituted a special contract. In Anderson v. Chester and Holyhead (i853) horses, Dublin to Shrewsbury, were delayed. Plaintiff con- tended the Company's clerk made a special contract to have the horses in Shrewsbury in time for the fair. The Chief Justice, in charging the Jury, decided as a point of law that Thomas Jones, the clerk, placed in the position in the Company's office, taking money from the public for carriage of goods and cattle, had inferentially authority to bind the Company by such a special contract. Judgment, on appeal, was against the Company. In Snead v. Shrewsbury and Hereford (i855) cattle, Leominster to Stamford, delayed. Lord Campbell told the Jury that if the Station Master made a verbal contract, the action was maintainable, and could not be done away with by the subsequent printed notice after the verbal contract had been entered into and after the cattle were loaded. In Gee v. Lancashire and Yorkshire (i860) cotton was delayed seven days, Liverpool to Oldham. The 38 ACCEPTANCE OF CONTRACT. cotton was required to start a new mill. The Com- pany had no proper notice for what special purpose the cotton was required. The Chief Baron held that " no man is responsible for any damage he has not reasonable means of foreseeing and guarding against." In Hales v, London and North Western (i863) a Forester's regalia was sent on hire (£20), London to Seaham Harbour, for a procession on a particular day. The regalia arrived too late. The Jury gave a verdict for £25 (£5 for personal expenses in looking after and tracing the goods). Chief Justice Colborn, on appeal, reversed the decision as to the £20, reducing the damages to £5. Where no time is mentioned for delivery of goods carried, the obligation of the carrier is to deliver within a reasonable time, and that is a question of fact. In Sharp v. North Eastern (1866) plums, Wetherby to Colne. Plaintiff contended the Station Master understood the plums should arrive in time for the Saturday's market. This was denied, but on the way- bill was the remark " Forward immediately, wanted for market on Saturday morning." The North Eastern Company's line ends at Leeds, where the plums arrived at 5.45 p.m. Friday, and were not carted across to Midland Company's station until after 8 p.m., when the Colne train had left. Company held negligent, seeing the remark on way-bill, not to have carted the plums in time for Colne train. Judgment against Company. In Woodger v. Great Western (1867) Justice Lush in this case told the Jury — " If you want to make a carrier liable for negligence in delivering goods you must give the carrier notice of what you want the goods for, that you want them at a given town by a given day, then you put on him extra care. It has been long decided that if you deliver a package to a carrier to carry without telling him of any extraor- dinary consequences that will ensue to you if it is not delivered by a given time, you cannot recover any special damages arising from delay." ACCEPTANCE OF CONTRACT. 39 In Horn v. Midland (i872) military shoes, Kettering to London, were delivered twenty-four hours late, and beyond the time sender had contracted to make de- livery. The French and Prussian war having ended the shoes were refused. Senders advised the Station Master they were under contract to deliver by 3rd February, whereas delivery was not made until the 4th February. Justice Willes said — "It is impossible to say that the Company's officer assented to be answer- able for the particular damage (Is. 3d. per pair). There was a penalty (refusal of goods) for non-delivery in the contract between the sender and the consignee of which the Company had no notice, and of the origin and circumstances of which they had no notice. The Company's officer ought to have been informed of the circumstances under which it became material that they should be delivered." In Cork Distillery Company v. Great Southern and Western (i874) 20 puncheons whiskey were consigned to "Stein & Co.," also to "Customs Warehouse." Stein & Co. got possession of the whiskey and never paid the duty, £1,360, and senders were liable for it. Lord Cairns in House of Lords held that such a con- tract could have been made by senders with the Company not to deliver to Stein & Co., but "to establish such a contract we must be able to find that the position of the Distillery Company was actually and clearly made known to the Railway Company. But there is not a word that I can find in the special case which states that the Railway Company had such notice. And if they had not such notice then the case returns into the condition of a case without any special circumstances brought home to the knowledge of the carriers." In Simpson v. London and North Western (1876) cattle spice was consigned, Bedford to Newcastle, and on the consignment note was remarked " Must be at Newcastle, Monday certain," and sender explained to the Company's clerk the goods were wanted at New- 40 ACCEPTANCE OF CONTRACT. castle at tliat time for a Show there. Chief Justice Cockburn said — "Where the intended use and appli- cation of the thing to be carried was expressly brought to the notice of the carrier, or could reasonably be inferred from the circumstances known to him, so that this special use or application might fairly be con- sidered to be within the contemplation of both parties to the contract, the consignee is entitled to a breach of this contract by the carrier, to recover the damages naturally resulting from his being unable to use or apply the goods. The Company, however, might have refused to make such a contract." 16. Streeter v. Horlock. — Action for £50, for delay in carry- ing and making delivery of 50 qrs. of wheat by barge from St. Lawrence to West Thurrock Mill before 9 o'clock on Saturday, the 15th September, 1822, the carrier having undertaken to perform same. The case was first tried before Baron Wood, at Chelmsford Assizes, when the Jury gave a verdict for £50. The carrier appealed, and on the appeal case. Justice Park said — " We are of opinion Plaintiff must succeed, on the ground that where an order is given previously to the delivery of the goods to a carrier 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 receipt of the goods to deal with them according to the order previously given and assented to, and the law infers an implied promise by him to perform such duty." Judgment against carrier. — Tried in Court of Common Pleas, June 25, 1822. — From Moore's Reports, vol. 7, page 283. A Railway Company's Carting Agent's Carter held to BE A Company's Servant. CaBe No. Machin v. London and South Western (1848) 88 DIGEST. In Machin v. London and South Western (i848) the Company's carting agent's carter stole a bale of silk value £150. Chief Baron Pollock said — " Chaplin and ACCEPTANCE OF CONTRACT. 41 Horne must be considered as the servants of the Company, and anybody whom Chaplin and Horne employed for the purpose of delivering these goods were also the servants of the Company, and it makes no diiference that by reason of some contract between the Company and Chaplin and Horne the Company have not the power of dismissing such servants. Acceptance of Contract when Carrier's Servants Collect Goods from Sender's Premises. Cases I Case No, No. Clayton V. Hunt {ISil) 72 Hart v. Baxendale {1851) ... 90 Bot/s V. Pink (1838) 17 I DIGEST. In Clayton v. Hunt (isii), w^hich was in the old carriers time, Hunt had a printed notice stuck up in his office at Oxford where the business of the waggon was transacted, cards of a similar purport had been circulated about the town, an advertisement had been published in the Oxford newspapers, hut there ivas no notice on the cart which went round to receive goods, and there was no evidence that any of the cards or advertisements had ever been seen by PlaintiiF. The box that had been lost had been collected by the carrier's cart. It was held on appeal that 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 negligence. In Boys v. Pink (i838) Chief Justice Denman held that the carrier's man who, at the request of the sender Avent to sender's house to fetch the box to the carrier's booking office, was for the time the sender's servant. It is very questionable now, seeing that carriers hold themselves out to collect from sender's premises, if this decision would be applicable. In Hart v. Baxendale (i85i) goods over £10 in value were collected from sender's premises, and the 42 ACCEPTANCE OF CONTRACT. value was undeclared. Judge Patteson on appeal held that the declaration must be made by sender's whether the goods were accepted at the carrier's office or else- where. From year to year railway companies by the aid of their own carts which collect and deliver, are becoming contractors for the transit of goods from sender's door to consignee's door. The acceptance of the contract of carriage by the carter at sender's door and the absence of any notice on the cart of the conditions upon which the Company carry goods leaves the carrier pretty much upon his "common law" liability, uncondition- ally, except in a case like Hrn^t v. Baxeiidale. The time may not be far distant when this point may become a question of contest, and therefore in antici- pation of this event I would suggest the use of an adhesive stamp as here given, which should be used by the carter when giving the receipt, in the same manner as a money receipt stamp is now used. RECEIVED SUBJECT TO r C0MMNY5 rUBUSHED CONDITIONS IJOBEHAD ON APPLICATION, 17. Boys V. Pink. — Action for £136, value of a box of en- gravings damaged by wet, Bristol to London, by road carrier. The value of the box was not formally declared, and the carriage charged was 9s., whereas if insured it would have been 12s. 6d. Sender called at Defendant's office and asked that the box might be fetched from his house, which was done. Chief Justice Denman in summing up, said — " It appears that sender went to the carrier's and asked to have the box sent for, which was done, and I think for this purpose the sender made the carrier's servant hi8 servant, and for this purpose we must take it that the goods ACCEPTANCE OF CONTRACT. 43 were delivered by the sender at the carrier's booking office. It is quite manifest that no formal declaration of the value was made and no extra carriage paid. It is probable that the carrier had a conviction as to what the contents of the box were, but it is not for us to make equivalents for that which is required by the Act of Parliament." Verdict for Carrier. — Tried in Court of Nisi Prius, February 5, 1838, before Chief Justice Denman. — From Carrington and Payne's BepoHs, vol. 8, page 361. False Declaration of Contents of Packages to Evade Payment of the Proper Tolls. Describing Packages CONTAINING GoODS AS BEING EmPTY, OR DECLARING LESS than the actual weight to evade payment of the Proper Tolls. Neglecting to Declare " Dangerous GrOODS " AS such. Case I Case No. No. Heame v, Gorton ^- Stone (1859) 18 8^9 Vic. c. 208, s. 98 and 99. Great Eastern y. Cobb (lS7i) ... 19 Cheat Eastern y. Aarons (^1875)... 21 Great Eastern v. Banhani (1874) 20 roR.M OF Notice used bv Midland Great "Western Railway Company. — Senders of goods are respectfully requested to comply with the terms of the 98 and 99 sees, of the Sth and 9th Vic, cap. 20, and in all cases truly to describe the contents of parcels of merchandise. Also, that the transmission of goods in parcels described as empties is a violation of the terms of the section, either of which subjects the senders to a penalty of Ten Pounds. 8^9 Vic., cwp. 20, sees. 98 and 99. — "Every person being the owner, or having the care of any carriage or goods passing or being upon the railway, shall, on demand, give to the collector of tolls, at the places where he attends for the purjiose of receiving goods or of collecting tolls for the part of the railway on which such carriage or goods may have travelled or be about to travel, an exact account in writing, signed by him, of the number or quantity of goods conveyed by any such carriage, and of the point on the railway from which such carriage or goods have set out, or are about to set out, and at ivhat point the same are intended to be unloaded or taken off the railway ,- and if the goods conveyed by any such carriage, or brought for conveyance as aforesaid, be liable to the payment of different tolls, then such owner or other person shall specify the respective numbers or quantities thereof liable to each or any such tolls. " If any such owner or other such person fall to give such account, or to produce his way bill or bill of lading to such collector or other officer orser\'ant of the company demanding the same, or if he' give a. false account, or if he unload or take off any part of his lading or goods at any other place than shall be mentioned in such account, with intent to avoid the payment of any tolls payable in respect thereof, he shall, for every such offence, forfeit to the 44 ACCEPTANCE OF CONTRACT. company a sum not exceeding Ten Pounds for every ton of goods, or for any parcel not exceeding one hundredweight, and so in proportion for any less quantity of goods than one ton, or any parcel exceeding one hundredweight (as the case may he), which shall he upon any such carriage ; and such penalty shall be in addition to the toll to which such goods may he liable." 1 8i Hearne v. Garton and Stone. — Action for sending a carboy containing oil of vitriol without declaring same as dangerous goods, being an ofifence against section 168 of the 5 and 6 of William IV., cap. 107, Great Western Kailway Act. The appellant, Hearne, is a servant of the Grreat Western Railway Company. On the 24th March, 1859, Garton and Stone, carriers (Defendants), were directed to convey four wooden cases from the house of Mr. John Martin Nicholas to the railway at Bristol, consigned to Auckland, New Zealand ; to be sent to London. The sender, Mr. Nicholas, stated the cases contained gun-stocks, seeds, and a few corks. Neither Garton and Stone nor the Railway Company knew that the cases contained vitriol. WTien the cases at Paddington were being placed on a cart for delivery, smoke was seen issuing from one of the cases, and on its being unpacked it was found to contain two carboys of oil of vitriol which had been broken, and which burned the straw in which the carboys had been packed. Two other cases were also found to contain each two carboys of oil of vitnol in an unbroken state, and the fourth case contained japanned wares and some corks, but there was no gun stocks in either case. The case was first tried before the magistrates, who did not consider Garton and Stone liable under the Act, seeing that they only acted as carting agents and were not acquainted with the contents of the cases. On the appeal case Chief Justice Lord Campbell said — " I must say that I think the Justices were clearly right. What they have done is very satisfactory. I read what they say : — 'We were of opinion upon the foregoing state of facts that the Respondents did not send the goods within the meaning of the 168th section ofthe Act, but that they acted as consignees of Mr. Nicholas, against whom the Company should have proceeded as the person who caused the said goods to be sent.' ACCEPTANCE OF CONTRACT. 45 " I do not saj whether they might or might not have done so, but then the justices go on to say — • ' We are also of opinion that to establish an offence within the meaning of the said 168th section it is necessary that there should be a guilty knowledge,' and then they find that there was no guilty knowledge. On that reason they were perfectly justified in their finding for Actus non facit reum nisi meTis sit re. This is an offence created by Act of Parliament, and it is treated as an offence for which the person who commits it is liable to be fined and imprisoned. It appears that not only was there an absence of all proof of guilty knowledge on the part of G-arton and Stone, but the presumption of such guilty knowledge, if there be any, was rebutted, for they proved that they were imposed upon by Nicholas. A fi:aud was practised upon them quite as much as if after a quantity of safe and innocuous goods had been packed up, other goods of a perilous nature had been imposed upon them. They have therefore rebutted the presumption that they knew the nature of the goods which were sent, and have proved that there was no negligence on their part, for they used all diligence by making enquiries to ascertain the contents of the packages. They have very good reason to complain of the conduct of Nicholas, and are they to be his victims ? I am inclined to think that they are the senders and civilly liable to the Company, for they clearly sent the goods, but I am also clearly of opinion that they are not criminally liable, and that it was an improper thing to initiate these criminal proceedings against them. I think also that upon the fact stated Nicholas was the guilty man, and that he was the person who ought to have been proceeded against." Justices Wightman, Crompton, and Erie concurred. Judgment in favour of Defendant. — Tried in the Court of Queen's Bench, June 11, 1859. — From Law Journal Reports, Magistrates Cases, vol. 28, page 216. 19, Great Eastern Railivay Company v. Cobb. — Pro- secution under the 8 and 9 Vic. c. 20 (Railway Clauses Act) for declaring a package to be an "empty," whereas it con- tained clothes — Eccles Koad to London. The charge for the '' empty " was 6d., whereas seeing that the box contained clothes 46 ACCEPTANCE OF CONTRACT. the proper charge was Is, 6d. It appeared the Defendant had been previously cautioned against the practice. The magistrates decided that Defendant should pay Is. toll, and £4 10s. 6d. costs, together with other charges, a total of £7 Is. 6d., to be levied by distress, in default six weeks' imprisonment in the House of Correction at Norwich. The money was paid. — Tried at the East Harling Petty Sessions, May 26, 1874. — From English Clearing House Reports, No. 259, page 335. 20. Great Eastern Railway Company v. Banham. — Prosecution under the Eailway Clauses Act, 98th, 99th, and 145th clauses, for declaring two packages as " empties," whereas they contained toys, and sender had advised consignee of having returned the toys and claimed credit for their value £\ 14s. 2d., Norwich to London. The charge made for the empties was lOd., whereas if it had been known the packages contained goods the charge would have been 2s. 2d. The Company's solicitor stated they felt compelled to prosecute, because during the year they had discovered three hundred of such cases of fraud. The Bench fined Defendant 40s. and £5 15s. 6d. costs. — Tried in Noriuich Police Court, June 15, 187 4:.^From English Clearing House RepoHs, No. 263, page 340. 21 . Great Eastern Raihvay Company v. Aarons. — Prosecution under the Eailway Clauses Act for false de- claration of the weight of goods to defraud the Company of their proper tolls. The consignment consisted of 34 bags rags, Cambridge to London, from Aarons to Harris. The rags were declared as weighing 2 tons 6 cwt., whereas it was proved sender had paid the man from whom he purchased them for 3 tons 5 cwt. 2 qrs. 3 lbs., and they were found by the Plaintiffs to weigh 3 tons 6 cwt. 1 qr. Defendant paid £1 16s. 7d. carriage, whereas it should have been £2 16s. lid. There were also two other cases — one where lis. 6d., and the other lis. 3d., was undercharged owing to the false declaration. The Mayor said the Court would impose the highest j)enalty, namely, £75 4s. 6d. and costs, or three months' imprisonment, in each case — nine months in all. The Act of Parliament fixed the penalty at a sum not exceeding £10 for each ton of goods ( ACCEPTANCE OF CONTRACT. 47 falsely declared. — Tried at the Cambridge Borough Court in 1875. — Frorti English Clearing House Reports 273, page 349. Delivery of Goods by Senders to an Authorised Place WHERE Carriers Accept Goods to Carry. Case No. Burrell y. North (184:7) 22 DIGEST. In the case of Burrell v. North (i847) Justice Erie held that goods delivered at a road carrier's carter's house, which was held to be a receiving house for goods to be carted between Fulham and London, con- stituted a delivery to the carrier. The 1 William IV., cop. 68, sec. 5, lays it down as follows: — "And be it farther enacted that for the purposes of this Act every office, ware- house, or receiving house, which shall be 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." 22. Burrell v. North. — Action for the value of a bed and other articles to be carried from Fulham to London. Susan North proved that a package containing the bed was left by the Plaintiff at her husband's house at Fulham to be carried to London by one of the carts of Defendant, who was a carrier from Fulham to London. She said "We are in the habit of receiving goods for Mr. North to carry. My husband drives one of Ml-. North's carts, and ours is a receiving house for parcels to be carried by his carts from Fulham to London. There is no payment made to us." Justice Erie said — " That is immaterial. If the defendant allows these persons to receive goods to be conveyed by him as a carrier, that is quite enough." Verdict against the carrier. — Tried in Court of Nisi Prius, Nov. 26, 1847. — From Carrington and Kirwan's Reports, vol. 2, page 680. 48 ACCEPTANCE OF CONTRACT. Delivery of Goods by Senders at an Unauthorised Place WHERE Carrier does not accept Gtoods. Selwaj y. Holloway (1695) Case No. 23 Hodgman v. West Mid. (1864) Case No. 747 DIGEST. In the case of Selivay x. Holloway (1695) it was held by Chief Justice Sir John Holt that goods left in an inn yard frequented by the carrier w^as not a delivery to the carrier. In Hodfiman v. West Mid. (1864) Justice Mellor held — " It appears to me the more reasonable construc- tion is that, so soon as the horse enters the Company's premises for the purpose of being received, forwarded, and delivered, the act of delivery begins, and that if the person sending the horse to be carried desires to be in a position to recover against the Company greater damages than the amount limited by the statute (£50), he roM^t have made the requisite declara- tion of value before the horse was taken to the premises of the Company." 23. Sehvay v. Holloivay. — Action for the value of a package of hops. It appeared sender deHvered the hops into the yard of an inn where Holloway, the carrier, put up and lodged. Sender's carman saw a woman at the inn (who had served Holloway before, but had quitted his service for five years), who said to the carman if he laid the package down (in the yard) Holloway would find them. The judges held that they were all of opinion that the hops could not be said to be delivered to Holloway, and therefore a new trial was denied. — Tried in the CouH of King's Bench, before Chief Justice Sir John Holt and Justices Sir Williarti Gregory, Sir Giles Eyre, and Sir Samuel Eyre, Trinity Term, 1695. — From Lord Raymond's Reports, vol. 1, page 46. ACCEPTANCE OF CONTRACT. 49 Rates — Quotation — Special, etc. Case No, Winkfield v. Packington (1827) ... 24 Oxlade v. North Eastern (1857)... 272 Qarton v. Bristol ^ Exeter (1861) 321 CaBe No. Colman v. Great Eastern (1882)... 25 Equaliti/ Clause, page id ■■ ■ ... — DIGEST. In Wirikjield v. Packington (1827) it was held that although the carriers' servant in mistake had quoted the wrong rate, and lower than the proper rate, the carrier was bound by such quotation. Equality Clause, fi and 9 Vic, cap. 20, sec. 90 (1845). — "And whereas it is expedient that the Company should he enabled to vary the tolls upon the railway so as to accommodate them to the circumstances of the traffic, but that such power of varying should not be used for the purpose of prejuchcing or favouring particular parties, or for the purpose of coUusively and unfairly creating a monopoly either in the hands of the Company or of particular parties, it shall be lawful, therefore, for the Company, subject to the provisions and limitations herein and in the special Act contained, from time to time to alter or vary the tolls by the special Act authorised to be taken either upon the whole or upon any particular portions of the railway as they shall think fit, provided that all such tolls be at all times charged equally to all persons and after the same rate, whether per ton or per mile, or otherwise in respect of all passengers and of all goods or carriages of the same description, and conveyed or propelled by a like carriage or engine passing only over the same portion of the line of railway under the same circumstances, and no reduction or advance in any such tolls shall be made, either directly or indirectly, in favour of or against any particular Company or person upon or using the railway. In Oxlade v. North Eastern (i857) Plaintiff com- plained that coal in train loads was carried at a less rate per ton per mile to South Staffordshire than for shorter distances on the local system of the North Eastern Company's system. Justice Cresswell held that a railway company is justified in carrying goods for one person at a less rate than that for which they carry the same description of goods for another, if there be circumstances which render the cost to the Company of carrying for the former less than the cost of carrying for the latter. In Garton v. Bristol and Exeter (I86I) Plaintiff claimed £160 on the ground that the Company had 4 50 ACCEPTANCE OF CONTRACT. not put up any boards to indicate the amount of their tolls (i.e., carriers' charges). The Judge said — " It is very doubtful indeed whether the Company is bound to put up boards at all in respect to the conveyance of parcels and packages hy their oivn carriages, but at all events we think that any payments which they re- ceived from the Plaintiffs or others on this head cannot be recovered on account of money had and received." In Colman v. Great Eastern (1882) the Court of Railway Commissioners held the Trowse Station public rate book showing the terminal charges distinct from the rate in a lump sum was not in accordance with the Act, and that the Act requires the nature and detail of such terminal expenses to be specified. 24-, Winkjield v. Packington^ Bart. — Action by a carrier for carriage of a quantity of trees, London to Hanbnry Wharf (^Worcestershire). Defendant sent a messenger to the carrier's London office to inquire the rate, and he was quoted 2s. 6d. per cwt., whereas the correct rate was 3s. 6d. per cwt., the clerk making a mistake. Lord Tenterden said — " 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 business there, that it will be done for a certain sum the master can charge no more. It is said that the clerk had no authority to make such a bargain ; however, I am of opinion that it signifies nothing in this case whether the carrier's servant did his duty or made a mistake. For if the trees were ent on the faith that they would be taken at a given price, in consequence of what the clerk said, it is quite clear that the Plaintiff can recover no more. Judgment for carrier, but for not more than Ss. 6d. per cwt. — Tried in Court of King's Bench, May 29, 1827. — From Carrington and Payne's Reports, vol. 2, page 599. 25 • Colman v. Great Eastern Railway Company. — Action against a company for not obeying an order of the Railway Commissioners, in accordance with section 14 of the ACCEPTANCE OF CONTRACT. 51 regulation of the Eailways Act 1873 (36 and 37 Vic. cap. 48), in which they were required in their rate book at Trowse Station to distinguish how much of each rate for traffic of the descrip- tions carried by them for the applicants is for the conveyance of such traffic on the railway, including tolls for the use of the railway, for the use of carriage or other locomotive power, and how much is for other expenses, specifying the nature and detail of such other expenses. The company in obedience to the order gave in addition to the rate for conveyance a list of the various terminal services which they performed for the particular traffic, and stated what their total charge was for the whole of such service. The applicants took out a summons for the infliction of penalties on the Company for not obeying the Commissioners' orders. The Commissioners delivered the following Judg- ment : — " We think the information given is not in compliance with our order. The Act of Parliament assumes that a rate consists of two parts, first, a part for the conveyance of the traffic, and, secondly, a part for other expenses, and, as regards the second part, it requires the nature and detail of such other expenses to be specified. The Company have thought it sufficient in this case to give a list of the various terminal services which they perform, and to state merely what their total charge is for the whole of those various services, but not to say how much of that total charge is for each of these services. We think that is not sufficient. We think they are bound to state as regards each rate for traffic in the Trowse rate book to which our order applies, what terminal services or other expenses they undertake to perform with regard to that particular traffic, and how much they charge for each of such terminal services, distinguishing whether tbe charge is for service at both terminal stations or only at one. The Company will have to pay the cost of this summons." — Tried in the Court of Railway Commission, June 15, 1882. — From Solicitors' Journal, vol. 26, page 534. 52 ACCEPTANCE OF CONTKACT. Acceptance of Contract by one Carrier from another Carrier, Goods being in Transit. Case No. Quiggan \. Duff (1836) 26 CaBe No. Meade v. South Eastern (1870) ... 403 DIGEST. In Quiggan v. Duff (i836) Chief Baron Abinger held it to be a question for a jury whether the re- ceiving carrier having accepted a written notice, and having made it a coui'se of dealing with the delivering carrier that goods should be left for him on the par- ticular wharf, whether a delivery had not been made on the lodgment of the advice note. In Meade v. South Eastern (i870), flour had been carried from Framlingham to Bromley, in Kent. At London the flour was transferred by cart from the Great Eastern Company to the South Eastern Com- pany. The flour was carried at local rates. During transit on the South Eastern line the flour was injured by being put into a waggon in which tar had pre- viously been loaded. Chief Justice Cockburn, on the first trial, held that there were two distinct contracts, and on the appeal case. Chief Justice Bovill held that the consignee was the right person to sue, and had full power to sue. 26. Quiggan v. Duff. — Action for the value of two boxes type carried from London to Liverpool by canal for John Quiggan, Douglas, Isle of Man, care of James Duff, Liverpool, shipping agent. Kenworthy & Co., carriers, carried the boxes to Liverpool and deposited them on the Duke of Bridgewater's wharf at Liverpool. On the day of landing consignee Duff was sent a notice of their arrival and his clerk signed for the notice. Kenworthy & Co. proved that on previous occasions Duff had given them notices to let goods brought by them for him remain on the wharf after their arrival till he sent for them. On the sixth day after the arrival of the boxes ACCEPTAJS'CE OF CONTRACT. 53 Duff went to get them and they could not be found. The case was first tried before Chief Baron Abinger, who directed the jury to find against Quiggan as there was no proof of deUvery to and acceptance by Duff of the goods. Quiggan then appealed to the Court of Exchequer, when Chief Baron Abinger said — " It did not strike me at the trial as material the course of dealing between Kenworthy & Co. and Duff. I therefore think, although the case appeared to me slight, it ought to have gone to the jury on the question whether, inasmuch as Duff by his notices to Kenworthy had in this particular case made the Duke's Wharf his own place of receipt for the goods, he had accepted them, and whether, if so, that was a proper place for leaving the goods so that Duff took proper care of them. These are all questions for a Jury, and therefore I think there must be a new trial." Barons Parke, Bolland, and G-umey concurred. — Tried in Court of Exchequer, Hilary Term, 1836.— From Meeson and Welsby's Bejports, vol. 1, 'page 174. Caeriers have no Eight to Open Packages of G-oods to ascertain the contents. Case No. Crouch V. L. a/nd N. W. (March, 1849.) 376 Case No. Crouch V. L. and N. W. (January, 1854-) 380 Where a Booking-Office Keeper (Receiving House) is or IS not a Caerier's Agent. story on Bailments, 8. 536 Newborn v. Just (1825) , Upston V. Slack (1827) Colepepper v. Good (1832) , DIGEST. In'* Story on Bailments," section 536, page 519, it is stated:— "In all cases the material point upon which the controversy hinges is, whether the one character or the other character predominates in the particular stage of the Case No. 27 28 Symes v. Oilbart \ Minor v. Chaplin (1836) . Dale (1836) L. and N. W. (1856) .. case No. . 30 . 31 . 387 29 54 ACCEPTANCE OF CONTRACT. transaction. If a common carrier receives goods into his own warehouse for the accommodation of himself and his customer so that the deposit there is a mere accessory to the carriage, and for the purpose of facilitating it, his liability as a carrier begins with the receipt of the goods. So if an innkeeper is at the same time a carrier, and goods are sent to his inn and received by him for transportation, he is liable as a carrier for any loss before they are put upon their transit." In Newborn v. Just (i825) the Sidcup carrier proved he did not get the box from the booking-office keeper ; the keeper was made liable on the ground of negligence at common laAv. In Upton V. Slack (i827) the booking-office keeper was sued as a common carrier. Chief Justice Lord Tenter den said — "That seeing there were many- receiving houses in London not belonging to carriers, plaintiff could not convert the keeper of a booking- office into a carrier." In Colepepper v. Good (i832) the carrier for seven years had been calling day by day at a booking-office and taking up goods. The booking-office keeper was held to be his agent for collection of parcels. In Symes v. Chaplin (i836) a mail coach regularly called at an inn at Melksham and took up parcels. The innkeeper was held to be the carrier's agent for receiving parcels. In Gilhart v. Dale (1836) Justice Williams said — " Here the contract (of booking-office keeper) was to deliver the goods to a carrier, and the evidence leaves it undecided whether the goods were lost in the de- fendant's hands or were delivered to a carrier and lost by him." Judgment for booking-office keeper. In Minor v. London and North Western (i856) Justice Williams said — "The Court is of opinion that the Company did not carry on business at Union Street, South wark, at the office of Pickford & Co., but that Pickford & Co. carried on the business of railway agency to the Defendants and several other Companies." Judgment for Company. ACCEPTANCE OF CONTRACT. 55 27. Newborn v. Just. — Action for a trunk, value over £5. The trunk was for Sidcup in Kent, and was delivered at the " Spotted Dog " receiving house in London, and the action was against the keeper of this house. The carrier to Sidcup being called, proved that on the day in question (26th March) he did not get the trunk. Defendant then pleaded the carrier's notice of goods valued over £5 when not declared, and that not being bound to receive parcels at all he might by contract limit his liability. Chief Justice Best said— "I think the notice will not assist you, you are not in the situation of a carrier. You are not an insurer; this notice is to protect from insurance. But it has been decided over and over again that notice does not protect a carrier against negligence, and Defendant can only be liable for negligence. Defendant, if he desires to limit his liability must give distinct notice to that effect, and if the public were told that he would not be liable for the negligence of himself or his servants he would not have many persons to trust him." Verdict for Plaintiff. — Tried in Court of Nisi Prius, June 23, 1825. — From Carrington & Payne's Reports, vol. 2, page 76. 28. Upston V. Slack. — Action for the value of a box lost. Defendant kept a booking-office in Piccadilly, his name was painted over the door, and on a board at the side of the door was painted, " Conveyances to all parts of the world," followed by a list of names of places, including Windsor, where the box was to have gone. Chief Justice Lord Tenterden said — " There is no proof that the Defendant is a carrier, the Plaintiff has declared against him as a carrier. We know that there are in this town booking-offices that do not belong to the carriers, and I am clearly of opinion that you cannot convert the keeper of a booking-office into a carrier." Plaintiff non-suited. — Tried in Court of King's Bench, Easter Term, May 21, 1827.— jProm Carrington & Payne's Reports, vol. 2, page 598. 29. Colepepper v. Good. — Action, £39 for loss of a chest. The chest was delivered and booked at the White Hart, Tower Street, London, addressed to "F. Colepepper, Bromley Hall Cottages, Bromley, nr. Bow." Defendant, a carrier, called for the last seven years at this booking-office to take up goods. 56 ACCEPTANCE OF CONTRACT. Defendant's man called and took up the chest, which then had on it the address of Mr. Chaplin, to be left at the "Three Mackerel," Mile End Road, " till called for." The chest being on the tail of the cart, the carter took off the address for fear it might be lost and put it into his pocket. The chest was delivered at the " Three Mackerel," where two unknown men subsequently called and took it away. The carrier contended he was not liable. The Judge said— " The first question is whether the booking-office keeper was or was not the agent or servant of the carrier, for if he was, then the carrier will be liable to answer for his negligence. Another question was, whether the direction was altered before the goods were delivered to the carrier's carter or not. 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. It will be for you to say whether in this case the course of conduct of the carrier calling from day to day for seven years does or does not satisfy your minds that the booking-office keeper was his agent. I agree that where a booking-office keeper has misconducted himself the party injm-ed may main- tain an action against him ; but it does not follow that he may not also maintain an action against the carrier." The Jury thought that the booking-office keeper was the agent of the carrier, and that the direction was right when the chest was delivered to the carrier. Verdict against the carrier for £39. — Tried at Adjourned Sittings in London, June 30, 1832. — F^'om CarHngton and Payne's Reports, vol. 5, page 380. 30. Symes v. Chaplin. — Action for £25 for loss of a parcel containing a certificate of bankruptcy of the Plaintiff — Brad- ford to London. The parcel was delivered to the postmaster of Bradford to go by the mail coach, and 2d. booking was paid. The parcel was sent by mail cart six miles to Melksham to meet the mail coach to London. The Innkeeper at Melksham for two years had been in the habit of receiving parcels for the mail coach, as well as for other coaches. The parcel was entered in the booking-book at Melksham, and subsequently delivered to the guard of the mail and entered on the way bill of the day, ACCEPTANCE OF CONTRACT. 57 but it never reached its destination. The case was first tried at the Assizes for the County of Wilts before Justice Williams, and a verdict given for £25. The carrier appealed, and contended no contract was made with him, nor was the value declared as over £10. Chief Justice Lord Denman, said— " He could not entertain a doubt but that the inn at Melk- sham was the office, warehouse, or receiving-house of the Defendant. It was a house for the reception of all parcels which might be left there to be conveyed to their respective places of destination by the different coaches which were accustomed to stop there. There was an adoption by the Defendant of the inn as a receiving-house. As to the declara- tion, the jury found that the parcel was delivered at the receiving-house of the defendant, and iiion constat^ but that when it was so delivered notice was given of the value." The other Judges concurred. Judgment for Plaintiff. — Tried in CouH of King's Bench, November 15, 1836.— From Law Journal Reports, vol. 6, page 25; also in Adolphus and Ellis' RepoHs, vol. 5, page 634. 31 . GiWart v. Dale. — Action for the value of a box of new clothes delivered to Defendant, a proprietor of a general booking-office at Gloucester Coffee House, Piccadilly. The box was booked, and 2d. paid for booking. No direction was given as to any particular conveyance. Justice Williams, on appeal, said — " A carrier must discharge himself of his contract by delivering the goods to the consignee. Here the contract was to deliver them to a carrier, and the evidence leaves it undecided whether the goods were lost in the Defendant's hands, or were delivered to a carrier and lost by him. There is, therefore, no sufficient proof of negligence in the Defen- dant." Judgment in favour of booking-office keeper. — Tried in Cwxrt of King's Bench, Nov. 8, 1836.— Fro???, Adolphus and Ellis' Reports, vol. 5, page 543. 5B ACCEPTANCE OF CONTRACT. An Alteration of an Address on Goods or a Consignment Note by a Carrier's Servant requires Sender's Know- ledge and Consent. Case No. Watson y. Ambergate, N. and B. (1850) ... 6 DIGEST. In Watson v. Amhergate^ Nottingham, and Boston (1850) the Company's servant altered the address on a package from " Paid to Bristol" to "Paid to Not- tingham," the farthest point in the direction of Cardiff to which the Station Master had rates ; the Company were, however, still held liable for the through contract to Cardiff. Sender of Goods is not Compelled to Use the Company's Consignment Note 'with Printed Condftions Thereon, when any of such Conditions are Unjust AND Unreasonable. Case No. Carton v. B. and E. (1861) ... 321 Case No. Baxendak T. B. and E. (1862) ... 322 DIGEST. In Garton v. Bristol and Exeter (I86I) the Company refused to receive certain goods with Plaintiff's con- signment note, and required him to sign the Company's printed form of consignment note with certain printed conditions thereon. Chief Justice Cockburn held that as some of the conditions on the note had been held " unjust and unreasonable," the Company were not warranted in their act. Judgment against Company. In BaxendaJe v. Bristol and Exeter (I862) the Company required Plaintiff to use and sign their printed form of consignment note with " conditions " attached. Mr. Wall, the Company's carting agent, who also kept a receiving-house in the city of Bristol, did not require ACCEPTANCE OF CONTRACT. 59 the public bringing him goods as the Company's agent to use and sign such notes. Judgment against the Company. Acceptance m respect to the Liability of Collection and Delivery, and acting as Common Carriers beyond and OFF the KaILWAY. Case No. Baxendale v. Great Wutern (1863) 305 Case No. Baxendale v. London and South Western (1866) 306 DIGEST. In Baxendale v. Great Western (i863) the action was for cartage allowance in London and country stations on parcels under 500 lbs. weight, which the Company refused to allow the carriers, preferring to perform the service of collection and delivery themselves. By the Company's Act, 7 and 8 Vic, cap. 3, sec. 51, they had power as follows: — "And it shall be lawful for the said Company to enter into and make such arrange- ments as they may see fit with any Company or person with regard to the collection of such goods, &c." By Section 53 the Company could make any charge they think fit for parcels under 500 lbs. The majority of the Court held that cartage allowance as claimed must be made to the carriers out of the rate which included such services. Chief Justice Erie dissented. In Baxendale v. London and South Western (1866) Baron Channell said — " The Company are clearly en- titled to do what they profess to do, viz., to carry on the business of common carriers from London to New- port, Isle of Wight, using their line for that purpose as far as it is available, that is, from London to South- ampton, and acting as commori carriers off their line beyond the Southampton terminus." 60 ACCEPTAJVCE OF CONTRACT. Dangerous GtOODs. Caae No. Crouch V. L. aiid N. W. (^January, 1854) 380 Heame v. Garton ^ Stone (1859) 18 Cass No. 8 Vic, cap. 20, see. 105. Biggs v. Mitchell (1862) 32 DIGEST. In Crouch v. London and North Western (January, (1854) Chief Justice Jervis said — " No authority has been cited to show that a carrier is entitled in every case to know the nature and quality of the goods tendered to him to be carried, and on looking at the other provisions of the Act there seems to be no reason why the Company should make the inquiry. With reference to dangerous articles they are entitled by the Act to know their nature and quality, and such must be discovered to them at the time of the delivery ; and if the Company suspect articles to be of a dangerous nature they may open the packages." The 8th. Victoria, cap. 20, ssc. 105. — No person shall be entitled to carry or to require a company to carry upon the railway any aquafortis, 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 Company £20 for such conveyance, and it shall 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. 32. Biggs v. Mitchell. — Action in respect to dangerous goods. The mere having a quantity of gunpowder greater than the quantity allowed by the 11 and 12 Creo. III., cap. 61, sec. 1 1 in a carrier's warehouse as a temporary halting place in the course of its transit, for a not unreasonable time, for the purpose of such transit, is not such a "having or keeping" as to constitute an oflfence under the said section. — Tried in the Court of Queen's Benchy April 26, 1862. — From Weekly Jieporiery vol. 10, page 559. ACCEPTANCE OF CONTRACT. Ql Acceptance of Passengers' Luggage. Caee Ko. Mumter v. S) 36 Coggs y. Bernard (^1703) 35 Harris V. PacTcivood {1810) 41 Case No. Pickford v. Grand Junction (1842) 375 Munster v. South Eastern (1858) 449 DIGEST. In Jackson v. Rogers (i683), the Defendant refused to carry goods for the Plaintiff, he being a common carrier. Chief Justice Jeiferies said — " That the action Avas maintainable as well as it is against an innkeeper for refusing guest, or a smith on the road who refuses to shoe my horse, being tendered satis- faction for the same." It was alleged and proved that the carrier had convenience to carry the pack. In Pickford v. Grand Junction (1842) Baron Parke said — "By virtue of 3 Geo. IV., cap. 34, sec. 156, and 4 Will, IV., cap. 55, sec. 19, the Company, in their character of common carriers, are bound to carry for reasonable chai'ges, if reasonable charges are tendered to them." In Munster v. South Eastern (i858) Chief Justice Cockburn said — " The Act of Parliament renders it imperative on the Company to carry a certain weight of passengers' luggage. The Plaintiff calls upon them to label his parcels. This they refuse to do. It is impossible not to see that the question was whether the Company, by so refusing to label, could divest themselves of the common law which liability attached to them as carriers." There Avas nothing to relieve the Company of being common carriers. 35. G^OQ^ V. Bernard. — In this case Chief Justice Mold held — " If a carrier is to have a reward (for his services) he is bound to answer for the goods at all events. This is the case of the common caiTier, common hoy man (bargeman), master of a ship, which case of master of a ship was first adjudged 26 Car. 2 in the case Mors v. Slew, Rayrn. 220, 1 Vent. 190, 238. The law KXCEPTIONS TO CARRIERS' LIABILITIES. 67 charges this person thus entrusted to cany goods against all events but acts of Grod and of the enemies of the King. Foi though the force be never so great as of 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 oblige them to trust these sort of persons that they may be safe in their ways of dealing, for else these carriers might have an o}^)portunity of undoing 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 discovered, and this is the reason the law is founded upon in that point." Tried in Court of King's Bench, Trinity Tern, 1 IQZ.—From, Lord Raymond's Reports, vol. 2, page 909. (Jo.MMON Carriers can refuse to carry when they have no Convenience. Jackson V. Rog':rs fl683) RUp.;/ X. Hume (1828)... Case No. 36 64 Johnson v. Midland (1849) M'Manus v. L. ^- Y. (1859) Case No. 33 739 DIGEST. In Jackson v. Rogers (less) it was proved the carrier hud convenience to carry the pack, and he was defeated in the action. In Riley v. Home (1828) Chief Justice Best said— - '" We have established these points, that a carrier is an insurer of \\w goods which he carries, that he is obliged for a reason a])Ie reward to carry the goods to the place to which he professes to carry goods that are offered to him if Ids carriage will hold them,''' &c. In Johnson v. Midland (1849) Baron Parke held — ''That it did not appear in evidence that the Company li.ul ever made a public profession to carry coal from Melton ^lowbi-ay to Oakham, and it is found they ]i;i\'e no convenience for so carrying." In M^ Manns v. Lancashire and Yorkshire (i859) 68 EXCEPTIONS TO CARRIERS' LIABILITIES. Justice Erie said — " The carrier's duty to receive is always limited to his convenience to carry." 36. Jackson v. Rogers. — Action on the case for that whereas the defendant is a common carrier from London to Lymington et abinde retrorsum, and setting it forth as the custom of England that he is bound to carry goods, and that the plaintiff brought him such a pack, he refused to carry them though offered his hire. Held by Chief Justice Jefferies that the action is maintainable as well as it is against an innkeeper for refusing guest, or a smith on the road who refuses to shoe my horse, being tendered satisfaction for the same. It was alleged and proved that the carrier had con- venience to carry the pack. — Tried in CouH of King's Bench, Michaelmas Terim, the 55 of Charles II., 1683. — From Shmvers Reports, vol. 2, 332. Common Carriers can Kefuse to Carry Unless the Carriage is Prepaid. Batson v. Donovan (1820) Pickford y . Grand June. (1841) Case No. 50 37 Wyldv. Pickford{\M\) ... . Hunt V. Great Northern (1851). Case No. S2 754, DIGEST. In Batson v. Donovan (I820) Justice Best said — " The carrier is entitled to have his reward paid to him before he takes the package into his custody." In Wyld V. Pickford (i84i) it was held "A carrier is hound to convey goods only on payment of the full ])rie(' (which depends upon their value) for the carriage, and if not paid it is competent to him to limit his liability by special contract." In Pickford v. Grand Junction (is-ti) Baron Parke held that a legal tender was not necessary. " The acts to be done by both parties, namely, the receipt of the EXCEPTIONS TO CAERIERS' LIABILITIES. 69 goods and the payment of a reasonable sum for their carriage being contemporaneous acts." In Hunt V. Great Northern (i85i) it was held that the company were unable to require pre-payment of charge for working back owners' empty coal Avagons. 37. Pickford V. Grand Junction Railway Company. — Action in respect to refusal to accept a hamper con- taining maps, value of £200, and carry same, Birmingham to Manchester. The Plaintiffs (Pickford & Co.) brought the matter to trial, when the plea raised was that the declaration did not aver a tender to the Defendants (Grand Junction Eailway Company) of the money which they were entitled to receive for the carriage. Baron Parke in giving Judgment said — "The Court think that this is not like the case of a strictly legal tender, a term which is only applicable where an absolute duty, such as the payment of an antecedent debt is imposed on the party making it, in which case the tender stands in the place of a payment, and is in fact a payment so far as it is in the power of the party tendering to make it one, but which remains incomplete only because the party to whom the money is offered refuses to accept it. Such a tender we consider to be altogether unnecessary in the present case, the acts to be done by both parties, namely, the receipt of the goods and the payment of a reasonable sum for their carriage, being contemporaneous acts; the cai-rier being bound to receive the goods on the money being paid or tendered, and the bailor to pay the reasonable amount demanded on the carriers taking charge of the goods. Whenever a duty is cast upon a party in consequence of a contemporaneous act of payment to be done by another, it is sufficient if the latter pay or be ready to pay the money when the other is leady to undertake the duty. Here the acts to be done by the Plaintiffs and De- fendants are altogether contemporaneous. The money is not required to be paid down until the carrier receives the goods, which he is bound to carry. Baron Alderson concurred. Ver- dict for Pickford & Co. — Tried in the CouH of Exchequer, Easter Vacation, 1841. — Meeson and Welshy's RepoHs, vol 8, page 372 ; also Law Journal Reports., vol. 10, page 342. 70 EXCEPTIONS TO CARK1ER8 LIAi'-lMTJl Common Carriers can relinquish Carrying to cei{tain Points OR carrying certain GrOODS. Johnson v. Midland f 184i)^ Case No. 33 DIGEST. In Johnson v. Midland (1849) Baron Parke held— the Company after carrying between certain points " May afterwards relinquish the business if they please.'' A Railway Company can refuse to' carry Coal ev Truck Loads, if the Merchants will not pay Demurrage on detaining the Trucks. OxlcuJ,e V. North Eastern (1857) ... Case No. 27-2 DIGEST. In Oxlade v. North Eastern (i857) the Court refused r.o require the Company to provide trucks for the carriage of coal and coke for a merchant who refused to pay demurrage therefor at the same rate as was ..harged to all other merchants under similar cu^cum- ;tances. Exceptional Cases where Common Carriers may or may not refuse to Carry Goods. Case No. ytorse V. Slue (1670) 181 Gwrion v. Bristol and Exeter (1861) 321 Ovlade V. North Eastern (1864) ... 279 Case No. Northfield Iron Company v. Mid- land (1866) ... 348 DIGEST. In Morse v. Slue (i670) a box described as con- taining silk and other mean goods, but which really contained a large sum of money, was deli^'ered to a carrier, and he was robbed on the road. The Judge said — " If the carrier had told the owner that it was ji EXCEPTIONti TO CARKIEKS" LIABILITIES. 71 dangerous time, and if there was money in it he durst not take charge of it, and if the owner had answered as before, this matter would have excused the carrier." In Garion v. Bristol and Exeter (186I) the Company re- fused to accept the PlaintiiFs (a carrier's) consignment notes, and insisted upon filling up by their servants then* usual printed form of consignment note, with the conditions of carriage attached, and required Plaintiff to sign same. It appeared one of the printed con- ditions on the notes had been held bad in law (see Simons v. G-reat Western)^ being " unjust and un- reasonable."' Chief Justice Cockburn, holding this condition bad, held that Plaintiif could not be required to sign a note with such condition. In Oxlade v. North Eastern (i864) the Company de- clined to carry coal for individuals, and confined the carriage to colliery owners. Chief Justice Erie said — " I think the Company have a perfect right to say that they will carry coal only for colliery owners. For the reasons alleged by them in theu^ affidavits it is evident that they could not have the same control over the traffic if they carried coal for the general pubhc." Common Cakkiers can refuse to carry when they cannot CARRY the particular GoODS WITH SECURITY. Case No. Batson v. Donovan (1820) ... ... ... ... ... ... ... 50 DIGEST. In Batson v. Donovan (I820) Justice Holroyd held that if the carrier had not a sufficiently secure conveyance for the goods (bank notes) he might lawfully have refused to take them. 72 EXCEPTIONS TO CARRIERS' LIABILITIES. Common Carriers can refuse to carry Passengers if they do not ordinarily carry passengers, and can refuse to CARRY Traffic of a Particular Class if they do not ORDINARILY CARRY IT, NOR FROFESS TO CARRY SAME. Johnson v. Midlaml (1849) Case No. 33 M'Manus v. L. 4- Y. (1859) Case 739 DIGEST. In JoJm^on v. Midland {i8i9) Baron Parke held — "A carrier may profess to carry a particular description of goods, say cattle or dry goods, in which case he could not be compelled to carry any other kind of goods, or he may limit his obligation to carry between certain points and not intermediate." In 3PManus v. Lancashire and Yorkshire (1859) Justice Erie said — "The carrier may choose the kind of conveyance, the times of transit, the mode of delivery, the articles that he will profess to carry, what price he will have, when he shall be paid, and the duty to receive is ahvays limited by his convenience to carry." Case No. CaBO No, ... — Garton v. B. and E. (1859) ... 385 ... 38 DIG EST. Common Carriers can Kefuse to Carry if the Goods are Tendered at an Unreasonable Time. Lane v. Cotton (1701)... Pickfordy. Grand J. (1844) In Laiu V. Cotton (i7oi) which, however, is not a carrier's case, Chief Justice Holt held — " So a common carrier may refuse to admit goods into his warehouse before he is ready to take his journey, but yet he cannot refuse to do the duty incumbent upon him by virtue of his public employment." — Lord Raymond's Reports^ vol. 1, page 652. In Pickford v. Grand Junction (i844), although the EXCEPTIONS TO CARRIERS' LIABILITIES. 73 Company's printed notice said goods delivered after 4 p.m. would not be forwarded same night, the weigher accepted them as being in time, and the Company's defence failed. In Garton v. Bristol and Exeter (i859) Justice Wil- liams held — " There is no reason why the Railway Company may not prescribe a certain hour, after which they will not receive goods to go by the next train. If admitted after prescribed time to forward, an extra charge might be made." 38. Pickford v. Grand Junction Raihvay Company. — Claim for deterioration of two consignments of pork delayed in transit, Liverpool to London. The pork was delivered between 5 and 6 p.m. at Wapping Station, and the weigher, Roger Williams, on each occasion said the crates were in time to go on, but notwithstanding they were not sent on the same evenings as delivered. The Company relied upon a printed notice, hung over the doors at the Wapping Station, that "all goods received after 4 p.m. would be forwarded on the next working day." The case was first tried at the London Hillary Sittings before Lord Abinger, when the Judge left the case to the Jury, who gave a verdict for the Company. An appeal was taken, when a rule was at once given for a new trial. (It would seem the acceptance of the crates by the Company's servant as being in time superseded the notice.) — Tried in CouH of Exchequer^ April 27, 1844. — From Meeson and Welshy^s Reports, vol. 12, page 766. C'OMMON Carriers can refuse to carry Goods badly packed AND UNFIT TO STAND THE JOURNEY. (See also under Damages.) Case No. Caee No, Munster v. South Eastern (1858) 449 Cox V. London a/nd North Western Higginhoitom v. Gt. N. (18G1) 39 (1862) 40 DIGEST. In MunMer v. South Eastern (i858), Justice Williams said — " There may, no doubt, be ca^es where articles 74 EXCEPTIONS TO CARRIERS' LIABILITIES. of this description (bales of rugs and shawls) may be so carelessly and iin])roperly packed as reasonably to justify a refusal on the part of the Company to accept them.' But it does not follow that they would be justified in rejecting every package which may be imperfectly packed. " In Higginhottom v. Great Northern (isei) the Com- pany received packages of paper in a loose state, and were held liable for partial loss. In Cox V. London and North Western cisg2) jListice Mellor put it to the Jury if it were not negligence of the Company to receive the casks of oil in their then leaky state, and the verdict condemned it. 39. Higginbottoon v. Great Northern Raihvay Company. — Action for £70 for damage to a number of packages of paper, London to Manchester. The receipt of the paper by the Comj^any was proved by a signature of a railway porter in a book, and it appeared that if goods so received were not in good condition it was usual to make a mark or note against the entry in the book, and there was no such mark or note in the present case. It was, however, admitted by the carrier who took the goods to the station that the porter who received them said they were not in good condition, and were a " loose lot." Justice Compton left to the Jury — (1) Was there any damage to the goods while they were in the Company's hands as carriers? (2) Was such damage owing partially to the state in which the goods were delivered to the Company ? The Jury replied " Yes " to both questions. The Judge then directed the jury to find for Plaintiff for stich damages as they thought had been caused by the want of care on the part of the Company's servants. Verdict, £40 against Company. — Tried at Liverpool Summer Assizes f 1861. — From Foster and Finlason's Reports, vol. 2, page 796. (The Company appealed to the Court of Exchequer, but failed.) 4-0. Cox V. London and North Western Railway Com- pany. — Action for £55 4s. 9d. for leakage of 240 gals, olive oil from 15 casks, London to Liverpool. It was alleged the EXCEPTIONS TO CARRIERS' LIABILITIES. 75 casks were old, and the evidence of the condition of the casks was very conflicting. The case was tried at the Liverpool Spring Assizes, 1862, before Justice Mellor. He left to the Jury — (1) Did the damage occur while in the Company's posses- sion from any inherent defects in the casks themselves? (2) If there were defects in the casks, had the Company knowledge or reasonable means of knowledge of such defects, and did the damage arise from such defects ? (3) If the Company had not notice of any defects in the casks at the time of loading (cartage), but had such notice when they an-ived at the goods station, were they guilty of negligence, in fact, in forwarding them in their then state? The Jury found for full amount against the Company, expressing thefr opinion that the damage did not arise from any inherent defect in the casks when delivered to the Company's servants, and further expressing their opinion that the Company should not have forwarded the casks from thefr London Station in the condition they were found to be when there. Judgment against Company. — Tried at Liverpool SuviTner Assizes, 1862. — From Foster & Finlasoii's Reports, vol. 3, page 77. Common Carriers can refuse to carry if Trader refuses TO PAY a reasonable CHARGE, BUT THE CARRIER CAN^'OT MAINTAIN THE REFUSAL IF THE CHARGE SHOULD BE HELD TO BE UNREASONABLE. Case Cass No. No. Harris \- . Pockwood (\^\0) 41 Ptcfc/ord v.Gmnd Junction (1844) 38 Wyldv.¥ickford{l%^\) 82 DIGEST. In Harris v. Packioood (isio) Judge Lawrence held — "There is nothinfy unreasonable in a carrier requiring a greater sum when he carries goods of a greater value. A carrier is liable by law to carry everything that is brought to him for a reasonable sum, and not to extort what he will." In Wyld V. Pickford (i84i) it was held "A carrier 76 EXCEPTIONS TO CARRIERS' LIABILITIES. is bound to convey goods only on payment of the full price for the carriage, which depends upon their value. In Pickford v. Grand Junction (1844) Baron Parke held that by virtue of 3 Geo. IV., cap. 34, sec. 156, and Will. IV., cap. 55, sec. 19, the Company in their char- acter of common carriers are bound to carry for reasonable charges if reasonable charges are tendered to them. 4-1. Harris v. Packwood. — Action for £126, value of 66 lbs. of silk lost, in 1810, between London and Coventry, during transit by carrier's waggon. The carrier had given his cus- tomers notice that he would not be responsible for packages over £20 in value, unless declared and insurance paid, but he quoted a rate of 9s. 4d. per cwt. for silk between London and Coventry, while for bulky articles his rate was 6s. per cwt. only. The case was referred, on appeal, to the Court of Common Pleas, before four Judges, when the Judgment was for the carrier. Justice Lawrence said — " There is nothing unreason- able in a carrier requiring a greater sum when he carries goods of greater value, for he is to be paid not only for his labour in carrying, but for the risk which he runs, which is greater in proportion to the value of the goods. 1 would not, however, have it understood that carriers are at liberty by law to charge whatever they please ; a carrier is liable by law to carry every- thing which is brought to him for a reasonable sum to be paid for the same carriage, and not to extort what he will." — Tried in Court of Gammon Pleas, Nov. 24, 1810. — From Taunton's Reports, vol. 3, page 264. Refusal of Dangerous Goods. (See under Acceptance of Contract.J EXCEPTIONS TO CARRIERS' LIABILITIES. 77 Common Carriers KEFusES'a to Carry if Sender upon Demand, Eefuses to Describe the Quality and Value OF THE GrOODS. Case No. Riley y. Horne (1828) 64 Crouch T. L. andN. W. (1854) ... 380 Case No. Rohinson v. L. and S. W. (1865) 751 DIGEST. In Biley v. Home (i828) Chief Justice Best held — '' That he (the carrier) is not obliged to take a package, the owner of which will not inform him what are its contents and of what value they are. If he do take charge of them he waives his right to know the con- tents and value." In Crouch v. London and North Western (1854) Chief Justice Jervis held — " The plea is founded on a general proposition that in the case of all goods of whatsoever nature or quality sent to a common carrier, the person deliverino; them is bound to know and be able to state, if required, their nature and quality. Now, I think if that be so the consequences would be so highly incon- venient that we should requii'e authority to support it." In Rohinson v. London and South Western (i865) the Plaintiff, on taking a horse to Liss Station, telegraphed from there to a friend that the horse cost £135. The Station Master becoming acquainted with this refused to book the horse unless insurance Avas paid on the horse to the value of £135. Chief Justice Erie said — "The Company did refuse to carry the mare because, as they say, the sender refused to declare the value to be greater than £50. The knowledge acquired by the Station Master was not a declaration by sender within the statute, and the Judgment must be against the Company." 78 DECLARATION OF VALUE AND CARRIERS' ACT. Caee Caae No. No. Bernstein y. Baxendale .. 44 Wyld V. Pickford .. 82 Davey \. Mason .. 83 Le Conteur v.L. ^ S.W.... .. 479 Attorney General v. Ilarley .. 42 Stoessiger v. South Eastern .. 43J Matliew V. Nelson ..'. ... .. 43 Woodward y. L. ^ N. W.... .. 81 Owen V. Burnett .. 69 Mijtton V. Midland .. 460 Brunt \. Midland .. 45 Anderson y.L. ^ N.W. ... .. 48 Wood \. Metropolitan .. 46 Trenilwin v. Great Eastern .. 47 Flowers Y. South Eastern ... .. 46 Beamy. L. ^ S. W. 79 Hart V. Barendale .. 90 Lawsnn v. L. ^ S.W .. 49 Butt V. Great Western .. 51 CAEEIEES' ACT. 1 Will. IV., cap. 68, ffec. 7. — Provided also, nnd be it further enacted, that where any parcel or package shall have been delivered at any such ofBce and the value and contents declared as aforesaid, the increased rate of charges been paid and such parcels or packages shall have been lost or damaged, the Itarty entitled to recover damages in respect of such loss or damage shall also be entitled to recover back such increased charges paid as aforesaid, in addition to the value of such parcel or package. DECLARATION OF VALUE AND CARRIERS' ACT. 79 ^ o t- s t t— » C3 H oo _2 ^ ^ ^C £■§ ca s -* ~ v: II o3 ^ £^ 1 S' e CO a ^ pi cq 5 o a i o o o o i 'S s P3 1 « o :£ a rt S s pq 1 S3 72 rM : • : Cm : : • J •S,D S 1 <<-i t ! ■o-e aE> * ' o • O (3 o t< • • _>.» • . • o * r I : t •2 "3 as . . ■£3 . . ,_^ , , a ■ ■ «« * ^ s ss-= Pm : : 5 o : _« |€l 4> S .a< =3 1 - ** : 13 ^ a Si a, s<: ill 1- P5 § s_^ g »•■ t: 2 " "S , <» O u cj - S o s O 0^ pw c g 9 o o 4*: = 3 > : o P ' C- S Ph O Kq C3 p "o 0) . 1 ►^ O Q 3 s ic i : : oSc-B la^ >% : — 5 *-'> o P:;:-* o -t; t< *J . ?Ji ^ • * © > ^ <£ " b a • t « • _ K ? C t, 0.2 II p J . 1 r r - -«J 'u H til O cc 80 DECLARATION OF VALUE AND CARRIERS' ACT. u <0 2 " rs O % as pq B 2 ai a> 2 O ■1 (3 . sS «J fci r^ .^ CM B 8f^ 03 w S eg u c o -^ c o ^ Hi c » s ^^ B B B . 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"° rt :- Ul >H s C .s.s § ^ „ ^ o a3. oW::;^ « co -< $ -SCO S "S — ^ o 1: lo :2P-i c o IS Q t-^ H'J DFX'LARATION OK VAL[K AJS'D CARRffiRS' ACT. .'.- i^' 29 Vic, cap. 94, sec. 1 (1865). — In tlie Carriers' Act (that is to say. iln; Act of the Session held in the eleventh year of the reign of King George the Tonrth ami the first year of the reign of William the Fourth, chapter sixty- eight, ' for the more effectual protection of mail contractors, stage coach pro- prietors, and other common carriers for hire, against the loss of or injury to parcels or packages delivered to them for conveyance or custody the value and contents of which shall not be declared to them by the owners thereof ") the term "lace " shall with respect to any parcel or package delivered after the com- iiiitn'cment of this Act oe construed not to including machine-made lace. 4-2, Attorney-General v. Harley. — In this case, tried in the Court of Chancery in 1828, the Lord Chancellor, in speaking of r,i-iiikets where there was a dispute in regard to the distribution of jewels under Mrs. Ann Newton's will, said — " There was a \;iinahle diamond necklace and cross, and the principal question i> whether under the subsequent gift of 'all my trinkets, neck- Ini-es of every description, jewels, garnets, cornelians, and watches,' she intended that particular necklace to pass. She liad disj)osed of all her jewels included in that term, rings set with diamonds, and it is difficult to suppose that she could iMtt-rid immediately afterwards to give away the diamond neck- lace and cross under the words ' trinkets and necklaces.' If til.- diamond necklace were to pass under the term 'necklaces' all jewel trinkets would in like manner pass under the term Miiiikets,' and then there would scarcely remain anything to 1>-^ sold as included in the bequest of jewels." — Law Journal Hnpoiis, vol. 7., page 31, Chancery. 4-3, Mathevj v. Nelson. — Action for the loss of a quantity of hat bodies, carried by road, and lost between Keynsham (near Bristol) and London. The carrier contended the value was over £10, and that they came under the designation of •• hu-s," as they were made partly of the fur which came from the back of a rabbit. A witness stated hat bodies were made of wool — about half of sheep's and half of rabbit's wool — and that there was not any hair in them at all. Chief Justice Tindal said — " Look at the words of the statute, and consider whether it does not mean articles made entirely of fur, and not articles in which there is only a portion of tiir. The statute speaks of silks in a manufactured and Rumanufactured state, and whether wrought up or not wrought i DECLAKATION OF VALUE AND CAKRIERS' ACT. 83 up with other materials, but it mentions " furs " without any such provision." The Jury was of opinion that the hat bodies were made of wool. Judgment against carrier. — Tried at Nisi Prius, June 27, 1833. — From Carrington and Payne's Reports^ vol. 6, page 58. 4-3 V2, Stoessiger v. South Eastern Raihvay Company. — Action for ^9 10s. cash, sent in a value parcel and never delivered, Chatham to Birmingham. In the parcel was an imperfect bill of exchange for £11 10s., accej)ted by a Mr. Cruttenden, but with no drawer's name on it, and hence not negotiable. The Company contended it was under the Carriers' Act " Securities for the Payment of Money " or " Writings," and brought the value of the parcel above £10, and same not having been declared they were not liable for the £9 10s. or the bill. The Court decided the Bill being imperfect was not a secm-ity. Verdict against Company. — Tried in Court of Queen^s Bench, April 21, 1854. — From Law Journal Repjorts, vol. 23 page 293. 4^. Bernstein v. Baocendale. — Action for £229 Is. 6d. for a variety of fancy goods lost in transit, London to Portsmouth. The Defendants pleaded the Carriers' Act, 11 Geo. IV., and 1 Will. IV. cap. 68, as reason why they should not pay for a portion of the goods for which no declaration of value had been made. For the other portion of the goods they paid £106 17s. into court. The case was first tried at the London Sittings, before Judge Byles, and a verdict was given by the Jury for £122 4s. The Judge gave liberty to move to set aside or reduce the damages if it were held the articles came within the Carriers' Act. On the appeal case Chief Justice Cockburn held that ivory bracelets, ornamental shirt pins, gilt rings, brooches, tortoise- shell and pearl ornamental portmonnaies and ladies scent bottles are trinkets within the Carriers' Act. " Silk Guards " were also held to come within the meaning of the same Act, as the wording is " Silks in a manufactured or unmanufactured state, and whether wrought or not wrought up with other materials." German silver fusee boxes were held not to be trinkets, and Plaintiffs were held liable for their value. Portmonnaies were lield to be pretty things to be can-ied about and for show, altliough money 84 DECLARATION OF VALUE AND CARRIERS' ACT. may also be put into them. The com-t was disposed to hold that whatever comes within the description that its primary object is ornament it is then a trinket, although the article may incidentally be applied to some useful purpose. In Mathew v. Nelson (6 Car. and P., 58) it was held as to "furs" that hat- bodies, which were made partly of the fur from the back of rabbits, do oiot come within the description of furs in the Carriers' Act. In Oiuen v. Burnett (3 Laiu J. i2., 76 Ex.) glass converted into a mirror was held to be " glass " within the Act. Justice Willes said — " I know that in Ha7i v. Baxendale (20, La^v J., 338 Ex.), although this does not appear in the report, the Court of Exchequer intimated that silk hose was within the statute, and that the ruling of Lord Abinger in Davey v. Mason (1 Car., and M. 45) that silk dresses made up to wear were not within the statute could not be sustained. In the same case Lord Abinger ruled that a gold chain used for an eye-glass was not to be considered as a trinket. Chief Justice Cockburn said — " As at present advised I do not think that the article ceases to be a trinket, because some utility is added to its ornamental value. The court reduced the verdict to £11 17s. — Tried in Court of Common Pleas, April 16, 1859. — From Law Journal Reports, vol. 28, page 265. 45. Brunt V. Midland Railivay Company. — Claim for igl40 12s. 8d. for a hamper of elastic silk webbing, damaged by wet and rendered useless during carriage to Manchester. The Company contended the goods came under the Carrier's Act as " silk wrought up with other materials into a manu- factured state." There are three kinds of elastic webbing — (1) silk web, (2) plaited web, (3) cotton web. A yard of this silk web weighed about three ounces and contained one ounce of silk. Is., one and a quarter oimce of India rubber, 7id., and three-quarters of an ounce of cotton, 3^d. The Company paid £5 into Court. The case was first tried by Chief Justice Cockburn, at the Derbyshire Summer Assizes, 1863, and it was agreed for a verdict to be given for £15 over the £5 paid into Court, and reserve the question as to the goods coming within the Carriers' Act to the Court above. On the appeal case Chief Baron Pollock, with Barons Martin, Channell, and DF.CLARATIOX OF VALUE AND CARRIEES' ACT. 85 Pigott, held that this webbing was within the definition in the Act of " silks wrought with other materials." Judgment for Company. — Tried in Court of Exchequer^ January 15, 1864. — Law Journal Reports, vol. 33, page 187. 4- 6. Floiuers v. South Eastern Railway Company. — Action for £\\ 18s. Od., being £10 for a silk dress and 38s. for Plaintiffs' clothes enclosed in a portmanteau, which consti- tuted the passenger's luggage of his wife travelling alone from Redhill to Charing Cross. The 38s. also included some flowers in a hamper carried at the same time. Both portman- teau and hamper were lost. The Company paid a sum into Covut covering the loss of the other contents of portmanteau. The case was first tried at Gruildhall before Baron Bramwell, when the verdict was in favour of the Company. Plaintiff appealed, when Baron Pigott said — " I think we are bound by report given by counsel of the case of Wood \. Metropolitan Raikvay Company (decided in Queen's Bench at Sittings in Banco after last Hilary Term, but not reported), and I think that if this question had been open I should have come to the same conclusion as the Court of Queen's Bench in that case. There is nothing in the Carriers' Act to show that the words there used were not used in their most comprehensive meaning or to show that they were intended to be confined to articles of merchandise. Our Judgment as to the silk dress will there- fore be for the Company. With respect to the other question I agree with my learned brothers that the plea was not proved. Judgment for £1 18s. Od." Barons Bramwell and Channell concurred. — Tried in Court of Exchequer, May 4, 1867. — Law Times Reports, vol. 16, ptnge 329. 4-7, Treadivin v. Great Eastern Raikvay. — Action for 28s. for a gilt frame and 7s. 6d. for a packing case. Plaintiff sent from Exeter to Norwich for a Church Congress, on exhibition, an Honiton Lace "Corporal," in value over £10, but did not declare it. The lace was enclosed in a frame, and the frame glazed for exhibition on a wall. The case was first tried before Justice Byles at Guildhall, when a verdict was given for 35s. 6d., the value of frame and case. The Company appealed, when Chief Justice Bovill said — "A frame might S6 DECLARATION OF VALUE AND CAKRIERS' ACT. probably be held to be part of a picture, but here the frame is attached only for the purpose of exhibition, it is not an accessory for the purpose of the conveyance of the lace, neither is the case." Justice Byles concurred. Justice Willes dissented, and did not think the frame a separate article. Two Judges being in favom- of Plaintiff, Judgment was against the Company. — Tried in Court of Common Pleas, Jan. 25, 1868. Law Times Reports, vol. 17, page 601, also Latu Journal RepoHs, vol. 37, jjage 83. 48 • Anderson v. London and NoHli Western Raihvay Company. — Action for £25 for fi-ames to certain pictures, the Company having lost both pictures and frames. The Company pleaded that they were not liable under the Carrier's Act as the pictures being of over £10 value had not been so declared. The Plaintiff contended that the frames to the pictures were to be regarded as distinct articles from the pictures, and that he was entitled to recover thefr value. The Jury assessed the value of the fi-ames at £25. The Judge reserved leave to move for a non-suit . — Tried at the Liverpool Passage Court. On the appeal Bai-on Martin said — " The point at issue is a question of fact. The question is what would mankind understand to be a picture ? It generally consists of (1) the canvas, (2) the painting itself, (3) the fi'ame. These three things must be considered, not separately, but as an entire thing. I say the Plaintiff cannot recover, it being the common understanding of mankind that a picture means not only the canvas and the painting, but also the fi-ame, if it be enclosed in one. Chief Baron Kelly said — " A picture is in general encompassed with or set in a frame. But even if that were not so the frame of the picture and the picture itself must be considered one article for the purpose of mer- chandise. I am of opinion the Company is exempt from liability." — Baron Pigott concurred. — Tried in Court of Exchequer, Hilary Term, 1870. — Law Journal, vol. 39, 55, Exchequer. 49. Laivson v. London and South Western Railway Company. Action in respect to an author's MS. lost, which was held to be a writing within the Carriers' Act. The Judge said — " In this case, the Plaintiff, an author, claimed from the DECLAKATION OF VALUE AXD CARRIERS' ACT. ^7 Defendants £10 as damages for the loss of a packet containing a manuscript intrusted to them as common carriers. On the 1st ]March the Plaintiff delivered the packet in question to r1n^ liooking clerk of the department at Maiden Station, and tooU ^ receipt for tlie same in the following words : 'Eeceived of .1. A. Lawson, a packet of manuscript for transmission to Mei^^i>. Hurst and Blackett, 13, Grreat Marlborough Street, London." signed with the clerk's initials, and the plaintiff paid the ^mn of 6d. for carriage. On the next day, the packet was dehveivd at the publishers and 6d. demanded and paid for carriage, but. on opening the packet, it appeared that it had been previonoint is settled by Sleat v. Fagg^ Wright v. Snell, Birkett v. Willan, Beck v. Evans, and Bodenham v. Bennett. The Jury are to decide what is gross negligence. " If a notice touching the responsibility of the carrier be given, it matters not by whom it is given, or in what form, if it tells the owner of the goods that the carrier by whom he proposes to send them will not undertake for their safe con- veyance unless paid a premium proportioned to their value. " We have established these points : That a carrier is an insurer of the goods which he carries ; that he is obliged for a reasonable reward to carry any goods to the place to which he professes to carry goods that are offered to him if his carriage will hold them, and he is informed of their quality and value ; that he is not obliged to take a j)ackage the owner of which will not inform him what are its contents and of what value they are ; that if he does not ask for this information, or if when he asks and is not answered he takes the goods, he is answerable for their amount, whatever that may be ; that he may limit his responsibility as an insurer by notice, but that a notice will not protect him against the consequences of gross negligence." — Tried in Court of Common Pleas, November 12, 1828. — From Bingham's Reports, vol. 5, page 220. 65- Meagher v. Limerick and Foynes Raihvay Company. — Action for £12 10s. 6d. for two pieces of silk enclosed in a box sent from Rathkeale to London, alleged to have been stolen. The Company admitted (1) receipt, (2) that the silks were in the box, (3) value, (4) loss, (5) non-exhibition of rates for goods declared over value of £10. Plaintiff admitted non- declaration of value and acceptance of an ordinary receipt note. Plaintiff pleaded that under 8th section of Carriers' Act the Company were responsible for the felony of their servants, and under 3rd section liable from not exhibiting rates for goods declared over £10 value. Company pleaded that as no proof of felony was given the section did not apply, and that the other DECLARATION OF VALUE AND CARRIERS' ACT. 107 section did not apply as Plaintiff did not declare the value over £10, and cited Metcalf v. London Brighton and South Coast Railway, 4 C. B., N. S. 311. Judge concurred with Company's pleas, reversed the decree of the Court below, and dismissed the civil bill without prejudice. — Tried before Justice Hayes, Limerick Summer Assizes, 1860, on appeal from Quarter Sessions. — Irish Maihvay Clearing House Reports. 66. Baxendale v. Great Eastern Railway Company.^ Action for £84 for a case of pictm-es lost, Kotterdam to London, via Harwich. The case was received at Eotterdam on a bill of lading, and no declaration of value was made. It was lost after leaving Harwich on the journey, Harwich to London. Plaintiflfs contended the carriage of the case was by special contract, which superseded the provisions of the Carriers' Act, and consequently a declaration of value over £10 was not necessary and the Carriers' Act did not protect the Company. The Company contended the reverse. On the first trial a verdict was entered for Plaintiffs for £84. An appeal was taken to the Queen's Bench, who gave Judgment for the Company. Plaintiffs then appealed to the Exchequer Chamber, when Chief Baron Kelly gave Judgment. He said — " We are of opinion the Judgment must be affirmed for the Company. Plaintiffs contend that the contract upon which these goods were delivered to the Company, and were to be conveyed by them in effect from Eotterdam to London, is a contract by means of a bill of lading ; and that that bill of lading, which is a marine contract, imports that they were to be conveyed by the Company in their capacity of carriers by water. It is per- fectly clear the bill of lading contemplated conveyance, Harwich to London, by water and by railway. The contract therefore contemplates a conveyance partly by land, and the contract being divisible the first objection of Plaintiffs falls to the ground." Baron Channell said — " Conceding for a moment that there is a special contract here, it is not such a contract as excludes the Company from availing themselves of the protection of section 1 of the Carriers' Act, for section 6 only provides that nothing in the Act ' shall extend or be construed to annul or 108 DECLARATION OF VALUE AND CARRIERS' ACT. anywise affect any special contract between a common carrier and any other parties for the conveyance of goods.' In other words, though a common carrier has entered into a special contract, he may avail himself of the protection of the Act, provided the terms of the contract are not inconsistent with ■such protection." Chief Baron Kelly said — " Under all the circumstances it appears to us all that the true effect of this contract by means of the bill of lading is, that these goods were delivered, as far •as relates to the conveyance of them from Harwich to London, to the Company in their character of common carriers, and they were to have all the liabilities of common carriers except only those which are exempted in the bill of lading, and they are also entitled as common carriers to the protection from liability which was conferred upon them by the Act of Parlia- ment." Barons Channell, Pigott, and Cleasby, and Justices Byles, Keating, and Smith concurred. Judgment for Company. — Tried in the Exchequer Chamber, February 2, 1869. — Laiu Journal Reports, vol. 38, page 137. Since the Carreers' Act of 1830, the Carrier cannot be HELD responsible FOR LoSS ON THE GROUND OF " GrROSS Negligence" in respect to Articles specified in the Act and Undeclared. Smith \. Borne C1818) Birkett v. Willan (1819) Duffv.Budd (1822) ... Broolce v. Pickwick (1827) DIGEST. In S77i{th V. Home (isis) a parcel of the value of £67, Worcester to London, was stolen oiF the carrier's delivery cart in London in the course of delivery. Justice Park, on the appeal case, concurred with the verdict of the jury, and held that there was " <^oss negligence," and the carrier's notice would not exempt him from liability Case Case No. No. 67 Owen V. Burnett (1834) 69 217 Binton V. Bihhin (1842) 70 218 Butt V. Great Western (1851) ... 51 68 Great Western v. Bimell (1857) 52 DECLAEATION OF VALUE AND CARRIERS' ACT. lOQ- In Birkett v. Willan (1819) a box, the value of which was undeclared, was delivered to a wrong consignee. On the apjDeal case by Plaintiff he urged that it was a case of gross negligence, quoting the case of Bodenham V. Bennett^ and the Judge, who had tried the first case, in a measure admitted this by granting a new trial. In Duffy. Budd (I822) a parcel of silk, undeclared, had been delivered to the wrong person, in fact, to a swindler. Lord Chief Justice Dallas said — " If this were not negligence there would be an end of carriage for hire, for who would be safe if a carrier might deliver a parcel to a person of whom he is altogether ignorant and whose residence is unknown to him, when he must have well known the person to whom it was directed not only by name but by residence ? " In Brooke v. Pickwick (I827) a trunk of passenger's luggage, over £5 value, was lost at or near Taunton off the coach, and a mile from Taunton the trunk was found in a field rifled of its contents. No declaration of value had been made, but the carrier's notice was properly exhibited. The trunk must have been taken at mid-day. Chief Justice Best held the trunk was lost through gross negligence, and held the carrier liable. In Owen v. Burnett (i834) Baron Bayley said — "The supposed negligence here imputed is that of carrying a package containing glass on a truck for a mile along a hard, smooth road. ... No wrongful act of gross negligence amounting to misfeazance having been established to take the case out of the protection in- tended by the statute. Gross negligence has in many cases been held to affix a liability on a carrier to which he would not have otherwise been subject. Thus, had the carrier dashed the glass on the ground, that wrongful act would have made him liable." In Hinton v. Dibhin (1842) it was the first case tried under the new Carriers' Act, 11 Geo. IV. and 1 Will. IV., cap. 68, and it was held that the allegation of gross negligence was not an answer to a defence that the 110 DECLARATION OF VALUE AND CARRIERS' ACT. goods are within those enumerated in Carriers' Act and are over ,£10 in value, and are undeclared. In Butt V. Great Western (isr.i) Justice Cresswell said — "The statute takes away the Company's liability as to gross carelessness in respect to the excepted articles (when not declared), liut 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 negli- gence as well as felony, it must still be so." In Great Western v. Rimell (iss?) Chief Justice Jervis 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. Where the defence is independent of the statute, negligence alone is a suffi- cient answer. Under the statute felony is an answer. Under the carrier's notice neo-lio-ence is an answer. We only decided (in Butt v. Gi^eat Western) that felony by the Company's servants, without negligence on their part, was not a good answer to a defence that the value of the goods was not declared according to the notice." 67 • Smith V. Home. — Action £Q1 9s. 6d., value of a parcel carried by coach, Worcester to London. The parcel reached London safely, but was lost in the course of delivery from the carrier's cart (stolen). It was usual for the Defendant and most other carriers to send two carters, whereas, in this case, only one J man was sent with the cart. Plaintiff contended that by sending one man only with the cart constituted " gross negligence." The value of the parcel was not declared, and the carrier's notice as to parcels over £5 in value was proved. The Jury gave Plaintiff a verdict on the. ground of " gross negligence." On the appeal case Justice Dallas said — "If negligence could be imputed to the Defendants I am of opinion that DECLARATION OF VALUE AND CARRIERS' ACT. Ill evidence to prove it was admissible under the declaration as now framed, and the verdict of the Jury should not be disturbed." Justice Park said — " A case of grosser negligence than this I have hardly ever known. The doctrine of caiTiers exempting themselves from liability by notice has been carried much too far. I see nothing in the objections which have been urged by Brother Best to induce me to think that the verdict is not per- fectly right." Justice Burrough — " The doctrine of notice was never known until the case of Forivard v. Pittard, which I argued many years ago. Notice does not constitute a special contract. If it did it must be shown on the record ; it only arises in defence of the carrier, and here it is rebutted by proof of positive negli- gence. I lament that the doctrine of notice was ever intro- duced into Westminster Hall." Judgment against carrier. — Tried in GouH of Common Pleas, Jan. 27, 1818. — From, Taunton^ s RepoHs, vol. 8, page 144. 68, Brooke v. Pickwick. — Action for the loss of a trunk containing female apparel, passenger's luggage by coach, Bath to Exeter. At Taunton there was a change of coach, and it was alleged the trunk was transferred from the boot of one coach to the top of the other. At Exeter the trunk was short, and was afterwards found rifled of its contents in a field about a mile from Taunton. It appeared the value was over £5, but it had not been declared. The carrier's notice was properly exhibited, but there was no evidence as to whether plaintiff had seen it. Chief Justice Best, on the appeal case, held that the trunk had been lost through gross negligence, and confirmed the verdict of the Jury. He said — " If coach proprietors wish honestly to limit their responsibility, they ought to announce their terms to every individual who applies at their office, and at the same time to place in his hands a printed paper specifying the precise extent of their engagement. If they omit to do this they attract customers under the confidence in- spired by the extensive liability which the common law imposes on carriers, and then endeavour to elude that liability by some limitation which they have not been at the pains to make 112 DECLARATION OF VALUE AND CARRIERS' ACT. known to the individual who has trusted them. The merely putting up a board in their office ought not to satisfy a jury that they have been at the pains to make a customer under- stand beforehand the limitation under which, after a loss, they seek to elude their general responsibility. I wish, therefore, that these notices had never been holden sufficient to limit the carrier's responsibility. It is too late, however, now to hold that they are without effect when the customer is distinctly informed of their existence. But, though the Judges have holden that they will in such a case exempt the carrier from his common law responsibility as an insurer, it has never been decided that they will excuse him from the consequences of gross neghgence. If the Jury found that there was gross negligence, and they could not find otherwise under the circum- stances of this case, the trunk having been lost at mid-day, it is immaterial whether the carrier has been apprised of the value of the article or not. He must have suj^posed in the present instance, from the size of the trunk and the condition of the passenger, that it was worth more than £5, and where is the line to be drawn if passengers are always to disclose the extra value of their luggage ? " Judgment against carrier^ — Tried in Court of Common Pleas, May 26, 1827. — From Bingham's RepoHs, vol. 4, page 218. 69. Owen V. Burnett. — Action for £37, value of a large looking-glass, broken in transit by road, London to Lymington. The value of the glass was not declared. Consignee's house was about a mile from Lymington, and the glass was carried from. the carrier's office this distance by the carrier on a long narrow brewer's truck without springs. On the first trial the Jury found negligence by the carrier, and gave Plaintiff a verdict for £37. On the appeal case Baron Bay ley said — "The supposed negligence here imputed is that of carrying a package con- taining glass on a truck for a mile along a hard, smooth road. But if that mode of carriage was not the safest, still, had the carrier been informed of the value, he might have used a greater caution, amounting to extraordinary diligence. In this case the carrier was only paid according to the rate for DECLARATION OF VALUE AND CARRIERS' ACT. 113 an ordinary risk, though notice was fixed in the office of the terms on which glass (under Carriers' Act) would be carried. I think that this case is within the Act, and that therefore the Plaintiff cannot recover for the loss ; no wrongful act, or gross negligence amounting to a misfeazance, having been established to take the case out of the protection intended by the statute. (jrross negligence has in many cases been held to affix a liability on a carrier to which he would not have otherwise been subject. Thus, had the carrier dashed the glass on the ground, that wrongful act would have made him liable. In one case where the carrier was held liable as for gross negligence, he delivered the article to a wrong person (Birkett v. Willan and Duff v. Budd). In others, a mode of conveyance different from that agreed for was substituted (Garnett v. Willan and Sleat v. Fagg). In another, the article was carried to a point beyond the right one, or (as in Smith v. Home and Batson v. Dono- van) it was left unprotected in a street in London. In all these cases misfeazance had taken place, whereas here there was no misfeazance or gross degree of negligence throwing the responsibility on the carrier notwithstanding the Act." Barons Vaughan and Grumey concurred. Judgment for carrier. — Tried in Court of Exchequer, Hilary Term, 1834. — From Tyrivhitfs Reports, vol. 4, page 135. (The carrier's charges for insurance were : — For 50 miles, |d. per lb. ; for 75 miles, fd. per lb. ; for 100 miles. Id. per lb. ; for 150 miles, l^d. per lb. ; for 200 miles, l|d. per lb. ; for 250 miles, 2d. per lb.) 70. Hinton v. Dihhin. — Action for value of a bale of silk lost between London and Calne by road carriage. The value was over £10, but had not been declared to the carrier when delivered at " Gerard's Hall Inn," Basing Lane, the carrier's receiving house. Plaintiff charged the carrier with " gross negligence." The carrier pleaded the Carriers' Act, 11 Greo. IV. and 1 Will. IV., cap. 68. This was the first case tried under this Act, which Act had superseded the carriers' ordinary notices. Plaintiff contended that the carrier was guilty of such gross and culpable negligence and wrongful and improper •conduct that, by their gross and utter neglect, wilful default, 8 114 DECLARATION OF VALUE AND CARRIERS' ACT. and entire and absolute want of care and caution, the said silk was lost. Chief Justice Lord Denman reviewed at some length the condition of the law and the decisions before the passing of this Carriers' Law, and concluded by saying — " We are, there- fore, unfettered by any authority in putting that construction upon the statute which we think it requires, and our Judgment must be for the carrier." Thus the plea of " gross negligence " is not operative as an answer when the goods are within those enumerated in Carriers' Act, and are over £10 in value, and are undeclared. — Tried in Court of Queeri's Bench, Hilary Term,. 1842. — From Adolphus & Ellis' Reports, vol. 2, page 646. Exhibition of Notice AT Carrier's Eeceiving Place. Case No. Case No. Butler y. Heajrne (1809) 71 Brooke v. Piclcwich (1827) 68 Clayton v.Htmt (1811) 72 Collis V. Mid. 0. W. (1868) 74 Mayhew v. Eames (1825) 73 Did] EST. In Butler v. Hearne (i809) the carrier nailed upon his office door a hand-bill stating, in large print, the many advantages belonging to the Avaggon, and, in very small characters at the bottom, that the owner would not be answerable for goods above the value of £5 unless entered as such and paid for accordingly. Lord Ellenborough said — " If a common carrier is to be allowed to limit his responsibility, he must take care that everyone who deals with him is fully informed of the limits to which he confines it." Judgment against carrier. In Clayton v. Hunt (isii)— which was in the old carriers' time — Hunt had a printed notice stuck up in his office at Oxford, Avhere the business of the waggon was transacted ; cards of a similar purport had been circulated about the town, an advertisement had been published in the Oxford newspapers, hut there was no notice on the cart which went round to receive ffoods. DECLAEATION OF VALUE AND CAEKIERS' ACT. 115 and there was no evidence that any of the cards or newspaper advertisement had ever been seen by Plain- tiff. It was held, on appeal, that 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 negligence. The lost box had been collected by the carrier's cart. In Mayhew v. Eames (i825) the Plaintiffs' agent col- lected money at Downham and sent it to London, addi'essed "Mourning," not declaring value. As to the carrier's notice, the Court held — "Now, when a parcel came to the Plaintiffs in this way before, they must have seen the notice, because it was contained in the same paper which they must have looked at in order to ascertain the amount of the charge for carriage and porterage which they had to pay." Judgment for carrier. In Collis V. Midland Great Western (I868) £50 was claimed for loss of three small boxes of broken gold, gold lace, silver lace, trinkets, and jewellery. Sender told the clerk the boxes contained " broken gold, silver lace, and other things," but did not declare the value. Plaintiff contended the carrier's notice was posted in- side on the wall of the office, but from the counter where sender delivered the boxes it was too far away for him to be able to read. Chief Baron Pigott said — " I am clearly of opinion that the notice was not affixed in a ' public, conspicuous place ' of the parcels office, within the meaning of the Act." He felt bouad, how- ever, by Hart v. Baxendale^ that the first step of de- claring the value rested with sender. Judgment for Company. 71. Butler V. Heaviie. — Action for the loss of a trunk valued at over £5, carried by road, Cheltenham to London. At Cheltenham the only mode taken to publish the carrier's notice was by nailing upon the office door a hand-bill stating, in large print, the many advantages belonging to the waggon, and, in very small characters at the bottom, that the owner would 116 DECLARATION OF VALUE AND CARRIERS' ACT. not be answerable for goods above the value of £5 unless entered as such and paid for accordingly, which was not done in this instance. Lord Ellenborough said — " This is not enough to limit the Defendant's common law liability. We have not sufficient evidence of any special contract. The Jury ought to believe that at the time when the trunk was delivered at the waggon office at Cheltenham the Plaintiff or his agent there saw, or had ample means of seeing, the terms on which the carrier carries on his business. How can this be inferred from the hand-bill nailed on the door, which called the attention to everything that was attractive, and concealed what was cal- culated to repel customers ? If a common carrier is to be allowed to limit his responsibility, he must take care that every one who deals with him is fully informed of the limits to which he confines it." Judgment against carrier. — Tried at Nisi Prius, March 3, 1809. — From GannpheWs Reports, vol. 2, page 415. 72. Clayton v. Hunt. — Action for the loss of a box valued at £21, Oxford to London, by road carrier. Plaintiff was a student at University College, Oxford, and the box was col- lected by the cart going round the town for that purpose. The carrier contended he had given notice that he would not be liable for any package above the value of £5 unless insurance was j)aid upon it. This box had not been declared, and no insurance was paid. The carrier had a printed notice stuck up in his office at Oxford, where the business of the waggon was transacted ; cards of a similar purport had been circulated about the town, an advertisement to the same effect had been published in the Oxford newspapers, but there was no notice on the cart which went round to receive the goods, and there was no evidence that any of the cards had ever been seen by Plaintiff, or that he read any newspaper containing the adver- tisement. Lord Ellenborough held that the carrier in this case had not discharged himself from his common law liability, and gave a Judgment against the carrier for £21. In the ensuing term the Court refused a rule to show cause I DECLARATION OF VALUE AND CARRIERS' ACT. 117 why there should not be a new trial in this case, saying that 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 negligence ; and 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. — TWecZ at Nisi Prius, July 4, 1811. — From Campbell's Reports, vol. 3, page 27. 73. Mayhew v. Eames. — Action for £87, contained in a parcel, and consisting of bank notes, which was addressed " Mourning," Downham (Norfolk) to London, by coach. The money had been collected by Plaintiffs' agent, Hughes. The carrier's notice limiting liability to £5 could not be brought home to Hughes. The value of the parcel was not declared. The Court held that " here the agent was employed to transmit bank notes, which are the subject of the present action ; and it appears that the Plaintiffs themselves had knowledge that the Defendants would not be responsible for bank notes, because it is in evidence that many parcels came to them from the Defendants, and that the porter delivered together with such parcels a printed paper, containing a notice that * the proprie- tors of carriages setting out from the " White Horse," Fetter Lane, would not hold themselves accountable for any glass, china, plate, watches, writings, cash, hank notes, or jewels of any description, however small the value.' Now, when a parcel came to the Plaintiffs in this way before, they must have seen the notice, because it was contained in the same paper which they must have looked at in order to ascertain the amount of the charge for carriage and porterage which they had to pay. It was the duty of Plaintiffs to have told their agent not to send parcels containing bank notes by the coaches coming to the ' White Horse,' Fetter Lane." Judgment for carrier. — Tried in Court of King's Bench, January 24, 1825. — Fro7n Barne- wall & CressweWs Reports, vol. 3, page 601. 74-. Collis V. Midland Great Western Railway Company. — Action for £50 for loss of three small boxes containing broken gold, gold lace with the cotton burnt from it, silver lace, trinkets, and jewellery — Galway to Dublin. Sender was 118 DECLARATION OF VALUE AND CARRIERS' ACT. asked by the Company's clerk at Gralway if the boxes contained watches. He said no ; they contained " broken gold, silver lace, and other things." Plaintiff, however, did not declare the value. The boxes were lost. The case was first tried before the Gralway Recorder and a Jury, when a verdict was given for £G 10s. The Company appealed against this, on the ground that the declaration was not made. It was admitted that the carrier's notice of the Act (7 Will. IV., cap. 68) was posted inside on the wall of the office, but from the counter where sender delivered the boxes it was too far away for him to be able to read the notices ; and Plaintiff pleaded accordingly. Chief Baron Pigott said — " In the case of Hart v. Baxendale it was laid down that the sender of goods was bound, in order to fix responsibility, to take the first step by declaring the value and nature of the goods, even though the present notice was not posted ; and I feel bound to decide in conformity with that view, though I confess reluctantly. I am clearly of opinion that the notice was not affixed in ' a public and conspicuous place ' of the parcel office, within the meaning of the Act of Parlia- ment." Judgment for Company. — T7'ied at Galway Swmmer Assizes, July 29 and September 1, 1868. — From Law Times, vol. 19, page 150, taken from Irish Latu Times. Where the Goods are Over-Carried, or sent the Wrong Route, and Damaged or Lost. No. Gornettv. TTtlZaw (1821) 75 Bleat V. Fac/g (^1822) 62 Case No. Morritt v. North 'Eastern (1876)... 76 Millen v. Brasch (1881) 77 (iSee cases for particulars.) 75* Garnett v. Willan. — Action for £45, value of two pieces sarsenet contained in a package to be sent by coach, London to Worcester, and lost in transit. The value was not declared. The Defendants were Willan & Jones, and they ran a coach from London to Worcester from the " Bull and Mouth " J Inn. Willan was also a partner in a heavy coach that ran from the " Grreen Man and Still " Inn, Oxford Street, London, to DECLAEATION OF VALUE AND CAEKIERS' ACT. 119 "Worcester. The parcel was taken from the " Bull and Mouth " Inn by the Worcester coach to the " Grreen Man and Still " Inn, and there transferred and sent forward by the heavy coach, in which Jones had no ownership. Justice Bayley said — " The Plaintiff is entitled to recover. The true construction of the carrier's notice seems to me to be this, that the carrier is not to be protected by the words 'lost or damaged ' if he divests himself wilfully of the charge of the parcel entrusted to his care, because he thereby divests himself of his character of carrier of the thing entrusted to his care. The words ' lost or damaged ' ought to be qualified thus : ' The carrier himself does nothing by his own voluntary act or the act of his servants to divest himself of the charge of carrying the goods to the ultimate place of destination.' Now, when the Plaintiff sent his parcel by Willan & Jones, he had a right to have the care and attention of both these persons, and when he had the care and attention of one only he had not the care and attention for which he originally contracted. Willan & J< lues have therefore, by the act of their servant, divested them- \ es of the charge of carrying this parcel to its ultimate place f.r destination, and upon that principle I am of opinion that tliey are not protected by their notice." Justices Holroyd and Bt'st concurred. Judgment against carrier. — Tried in Court of King's Bench, October 26, 1821. — From Barneivall & Alder- son's Reports, vol. 5, page 53. 76. Morritt v. North Eastern Railway Company. — Action for £75 for two pictures, original drawings, of Kokeby Hall. The pictures were in wooden frames, bound face to face with tape, and the canvas exposed at back, so that their nature and fragility could be easily seen. They were carried as passenger's luggage, York to Darlington. No value was declared. By accident the pictures were over-carried to Durham, and, when returned to Darlington, were found to have been mutilated, but how done there was no evidence to show. On the first trial Plaintiff obtained a verdict for £15. The Company appealed, and Judge Blackburn said — " Now, though the pictures are not properly passenger's luggage, that question does not really arise here, and the sole point we have to determine is whether 120 DECLARATION OF VALUE AND CARRIERS' ACT. the provisions of the Carriers' Act apply so as to exempt the- Eaihvay Company from liability. If the Company had put the pictures out of the guard's van at Darlington, they would have been bailees (not carriers), and bound to take reasonable care of them afterwards ; and if it had been proved that they neglected to take such ordinary care as ought to have been taken, and that the damage complained of was the conse- quence, there would be little difficulty. But that has not been done here. We have no evidence how the damage occurred, and I can draw no inference of fact from the circum- stance that there was a hole through the glazed paper when returned from Durham that there was any gross negligence. It has been argued that protection by the Carriers' Act only extends in such a case as long as such property is being carried in connection with the contract, and that as soon as it is taken off the line of carnage the carrier ceases to have the protection afforded him by the statute. I cannot accede to such a view. The statute protects carriers in an unqualified way. If carriers were wilfully to damage goods or dispose of them to another, they would then be liable, because the loss would in no way be connected with their character as carriers. It is clearly intended that no responsibility shall be incurred in such a case as this unless the carrier gets proper compensation." Justices Quain and Field concurred. Judgment for Company, setting aside the verdict for £75. — Tried in Court of Queen's Benchy January 11 and Fehmary 15, 1876. — From Laiv Journal Beports, vol. 45, page 289. 77, Millen v. Brasch & Company. — Action for £210 damages for injury to contents and temporary loss of a trunk of clothes, which contained silk dresses, £36, and sealskin jacket, £4. The contents were not declared, nor the value. The trunk was delivered to Defendants in London to be carried to Home, and should have been sent to Liverpool, and thence per steamer ; whereas it was crossed with another package and sent to the Victoria Docks, London, and from thence to New York. This occurred on 13th November, and it was not until 15th December the mistake was discovered. The trunk was got back from New York to London on 11th March, and lay. DECLAKATION OF VALUE AND CARRIERS' ACT. 121 with the carriers till June, when Plaintiff accepted it. The carriers paid £5 into Court. Plaintiff also claimed £10 for articles bought in Kome at enhanced prices, owing to the loss ef the trunk. At the trial, before Justice Lopes, the Jury were discharged by consent, and all questions of fact and law were left to the learned Judge. Justice Lopes, in giving Judgment, said — "The Plaintiff contends that the Carriers' Act does not apply to this case, because the loss was temporary and not permanent. There is nothing in the Carriers' Act, and no authority which would justify so narrow a construction to be put upon the word ' loss.' I think it immaterial whether the loss is temporary or absolute. The trunk and its contents, not being delivered within a reasonable time, were lost to the owner within the meaning of the Act. The Plaintiff also contended that the Carriers' Act did not apply, because the carriers were not carriers of the trunk by land. The trunk was accepted to be carried partly by land and partly by sea. Le Conteur v. London and South Western is an authority to show, where there is one entire contract to carry partly by land and partly by sea, that the contract is divisible, and that as to the land journey the carrier is within the protection of the Act if the loss arises during the transit by land. I think the trunk was lost in its transit from the Defendants' receiving house. It ought to have gone to the railway to be conveyed to Liverpool. It went to the Victoria Docks (London). Directly it was on its wrong road it was lost to the owner within the meaning of the Carriers' Act. Again, it was contended by the Plaintiff that the carriers were not entitled to the protection of the Carriers' Act because they were wrongdoers, wrongdoers in that they sent the trunk on the wrong road, and not on the journey contracted for. Moi'- ritt v. NoHh Eastern is an answer to this objection. Justice Blackburn there says — ' L^nless it is proved the misdelivery was intentional the case is within the Act.' In that case pictures had been sent beyond their destination. Lord Justice Mellish also says, in the Appeal Court — ' If goods, by the negligence of the carrier, are carried beyond the point of destination and injured, this is within the Carriers' Act.' I can see no distinc- tion in principle between that case and the present. This 122 DECLARATION OF VALUE AND CARRIERS' ACT. objection therefore fails. It was, lastly, contended by the Plaintiff that he was entitled to recover the jL'10 for repurchase of other articles in Rome at enhanced prices irrespective of the Carriers' Act, and that the Carriers' Act did not apply to that portion of his claim. I think the Plaintiff is right, for this is not a loss by the carrier of the trunk nor an injury to its contents, but damages sustained by the owner in consequence of the non-delivery within due time ; it is something conse- quential to its loss. I do not think this £10 is within the protection of the Carriers' Act. But the carrier says if it is not within the protection of the Carriers' Act this portion of the claim is too remote. Much depends upon whether it was a reasonable and necessary act of the Plaintiff to buy these articles in Rome. This is a question of fact which I have to decide, and I think it was both the reasonable and necessary consequence of Defendants' failure to deliver that the Plaintiff should purchase what he did in Rome, a necessity arising from the non-delivery of a trunk which the Defendants might fairly assume contained wearing apparel. I think the Plaintiff would have gone to the same expense and bought the same articles for the use of his wife if there had been no railway carrier comjDany to look to, and if the trunk had been lost by his own fault. There was nothing extravagant or unreasonable in his so doing. I do not think these damages too remote. I give Judgment for the Plaintiff for £5, beyond the £5 paid into Court, with costs." — Tried in Court of Queen's Bench, November 26, 1881. — From Law Times Reports, vol. 45, page 653. Where there is Fraud on the part of Sender in Concealing THE Value enclosed in the Packages. Case No. Oibuonv. Paynton (17 6d) 93 DIGEST. In Gibbon v. Paynton (itgo) the Plaintiff tied £100 cash in hay in an old nail bag, and sent it, Birmingham to London, to save paying the insurance of 3d. in the DECLAKATION OF VALUE AISTD CAERIERS' ACT. 123 pound sterling. The bag was lost. Lord Mansfield held that " if the o^\Tier of the goods has been guilty of a fraud upon the carrier, such fraud ought to excuse the carrier. And here the owner was guilty of a fraud upon him ; the proof of it is abundant." Where Sender's In\'oice Price of the Goods was over £10, BUT THE Discount allo^\t:d by Sender brought THE actual Cash Payment by Consignt:e under £10. Case No. Blankenseev. London ^ North Western (1881) 78 DIGEST. In Blanhnsee v. London ^' North Western (issi) a parcel of jewellery was invoiced by sender to consignee at £11 14s., but sender's discount brought the price down to £9 19s., which sender claimed owing to loss of goods which had not been declared. Chief Justice Coleridge held that the value means the value to the sender of the goods, and which consignee had contracted to pay, and which had been invoiced to consignee. Judgiuent for Company. 78. Blankensee v. London and NoHh Western Railivay Company.— Action for £9 19s., value of a parcel of jewellery lost in transit between Birmingham and Ballymoney. The price at which the jewellery was invoiced by sender to consignee was £11 14s., but sender allowed a discount of 15 per cent., which, it was contended, reduced the value to the amount claimed. The value of the parcel was not declared, and the Company contended, the real value being over £10, they were protected by the Carriers' Act. The case was first tried before the Judge of County Court at Birmingham, and he gave a verdict for the Company. Plaintiff appealed, and on the appeal case Chief Justice Coleridge said — " I confess I entertain no doubt on this matter. " Value " means the value to the sender of the goods. The value of the goods to the sender is that which his consignee 124 DECLARATION OF VALUE AND CARRIERS' ACT. has contracted to pay. The consignee here had contracted to pay £'11 14s. \Miat the sender charged to the consignee, what he declared to be the value to him as between himself and the consignee, was £11 14s. Why should there be two separate values ? It is quite plain the invoice price of the goods to the consignee is the value of the goods to the sender, and it is not what he may have contracted to pay another person for them that is the value of them. He may have them as a gift, and is the value nothing to him because he has really paid nothing for them ? The question seems to me very clear indeed, and I think the Judgment was right, and must be affirmed." Justice Manisty said — " I am of the same opinion. I think the test is this : Suppose the Carriers' Act had never passed ; suppose there had been no protection at all, and this parcel had been lost, can anyone doubt but that the plaintiff, in an action for the recovery of the value, could have recovered the amount which the article was worth to them ? " Judgment for Company. — Tried in CouH of Queen's Bench, June 23, 1881. — Froiii Laiv Times Reports, vol. 45, page 761. Declaration of Value omitted, the G-oods temporarily Lost, but subsequently Kecovered. Case No. Eeam v. London S( South Western (1855) 79 Case No. Wallace v. D. Sf B. J. (1874) ... 80' Millen v. Brasch (1881) 77 (See cases for jparticula/rs.) 79. Hearn v. London and South Western Baihvay Gom- pany. — Action for £30 expended in rei^lacing and substituting title deeds and leases lost from 3rd June to 23rd September in a portmanteau, passenger's luggage, London to Southampton. The claim was practically for delay. The Company pleaded the Carriers' Act, 11 Geo. lY. and 1 Will. lY., cap. 68, sec. 1, the contents of the portmanteau not being declared as of value over £10 or as containing title deeds. It was held by the Court that the Act does not protect carriers in all cases where the owner of the article sustains damage from the neglect of DECLAEATION OF VALUE AND CAERIERS' ACT. 125 the carrier, but the loss there referred to is confined to those cases where the article is abstracted or lost from the personal care of the carrier. (It would seem that if the portmanteau had never been found the Company would not on this trial have been liable.) Judgment against Company. — Tried in CouH of Exchequer, February 13, 1855. — From Lata Journal Reports, vol. 24, page 180, Ex. The Company carried the case to the Court of Appeal, but here Judgment was given for the Company. Lord Justice James said — " It seems to me clear that the damage took place whilst the Company had charge of the goods as carriers, and that they were therefore protected by the Act, and not liable to the Plaintiff." — Tried in Court of Appeal, February, 1876. — From Latv Times Reports, vol. 34, page 940. 80. Wallace v. Dublin and Belfast Junction Railway Company. — Action in respect to goods of the description mentioned in the Carriers' Act, and exceeding £10 in value. It appeared the goods in question had been temporarily lost while in the carriers' charge, but after considerable delay they were found and sent on to Birmingham, their destination. The Plaintiff contended that the Carriers' Act does not exempt carriers from liability for delay in the carriage of goods, but only from liability for actual loss, and that the loss mentioned in the Carriers' Act, and from which by such Act carriers are exempted, means actual loss, and not temporary loss. Justice Mon-is said — " If the goods had been wholly lost and never delivered, the Defendants would have been protected by the Carriers' Act, and a plea of the loss would have been good. Are we, then, to say that the Company, who would not have been liable had they taken no steps to recover the goods, are to be held liable because they succeeded in recovering them ? On the authority of Hearn v. London and South Western Rail- ivay and Pianciani v. London and South Western Raihvay, and for the reasons I have mentioned, I am of opinion that the Company's defence, as pleaded, is good. Whether it be true in fact is for another tribunal to determine." Judgment for Company. — Tried in the CouH of Common Pleas, June 14, 1874. — From Irish Reports, Common Laiv, vol. 8, page 341. 126 DECLARATION OF VALUE AND CARRIERS' ACT. Determinixg a\'hether Articles come within the Carriers' Act rests with the Jury as a Matter of Fact. Case No. Woodtoard v, London aiid North Western (1878) 81 DiaEST. In Woodward v. London and N'orth Western (i878) the question was whether carpet designs painted in colours Avere ])ictures within the Carriers' Act. Justice Hawkins, on appeal, said — " I think the question whether the lost articles fell within the Carriers' Act one of fact for the Jury to determine. I think the Jury properly caine to the conclusion that they did not. Whether they (articles) do so or not must always be a question for the Jury, subject, of course, to the control which the Court exercises over verdicts if they are manifestly wrong." 81 , Woochvard v. London and N'orth Western Railway Company. — Action for £148 for a parcel containing twenty- rug designs, eleven carpet models, and ten working designs, varying in value up to £6 each. The Plaintiff was travelling as a passenger, using these designs as patterns to procure orders, and the parcel was passenger's luggage. The designs were painted in colours. The case was first tried at the London Hilary Sittings, 1877, before Baron Cleasby, when the Company contended that the articles were " paintings " within the mean- ing of the Carriers' Act, and, their value not having been declared, the Company were not liable. The question of whether they were " paintings " within the Act was left to the Jury, who decided they were not, and gave Plaintiff a verdict for 11 48. The Company appealed for a new trial, on the ground of misdirection on the part of the Judge in leaving the case to the Jury, and that the verdict was against the weight of the evidence. On the appeal case, Justice Hawkins read his Judgment — " I am of opinion our Judgment must be against the Company. DECLAKATION OF VALUE AND CAEEIERS' ACT. 127 I think the question whether the lost articles fell within the Carriers' Act one of fact for the Jury to determine (this was expressly decided in Brunt v. Midland Railway), and I think the Jury properly came to the conclusion that they did not. Looking at the articles themselves, which were before us, it is difficult to suppose that anybody would call them paintings, in the popular and ordinary sense of the word. They were clearly not so. It is true they were painted, and painted with great care, by hand, and, as coloured or painted designs, were pos- sessed of great merit and value. I look to the collocation of the words of the Carriers' Act, ' paintings, engravings, and pictures,' which to my mind indicates the intention of the Legislature that the word should receive its popular significa- tion only. Interpreted generally, it would include a painted door or panel. It would be absurd to suppose that such was the meaning or intention of the Legislature. It is a matter of common knowledge that many beautiful and artistic designs for hangings, papers for walls, muslins, china, &c., representing animals, flowers, landscapes, &c., are so exquisitely drawn and painted that they may partake of the character of " paintings " in the popular sense in addition to their character as designs in a commercial sense. "W^iether they do so or not must always be a question for a Jury, subject, of course, to the con- trol which the Court exercises over verdicts if they are mani- festly wrong. That the articles in question are of a similar character to those in respect of which the Carriers' Act has afforded protection to carriers there can be no question, but, unfortunately, the language of the Act is not such as to include them, and the defect in the Act, if it be one, can only be remedied by the Legislature. It may be asked : How is one to tell whether that which is painted is a ' painting ' or a mere painted design ; where is the line to be drawn ? Chief Baron Pollock said, in Brunt's case, ' The line is shifted according to the circumstances.' I think that this case is without the line, and that the Judgment must be against the Company." Baron Cleasby concurred. — Tried in CouH of Exchequer, January 4, 16, and February 4, 1878. — From Laiu Journal Reports, vol. 47, page 263. 128 declaration of value and careiees' act. When the Value is not Declared and it is over £10, the Owner cannot Kecover up to £10, nor in fact any amount. This conclusion naturally follows from the Carriers' Act. It is probable that many persons acquainted with the Act have appraised and claimed for lost or damaged goods (within the Carriers' Act) at less than £10 value, and have recovered same without question. It is therefore to the interest of the carrier that he should closely scrutinize the evidence of the value of goods for which claims under £10 may be made when such goods are articles within the Carriers' Act. When the Increased Value of the Goods is within the Knowledge of the Carrier and still the Sender Eefuses TO Pay the Extra Charge. Case No. Wjfldy. Pick/ord {ISil) 82 Case No. Robinson \. L. Sf S. W. 751 DIGEST. In WyJd V. Pichford (i84i) Plaintiff delivered Pick- ford a case of maps, value £200, and refused to insure them. Pickford then served him with a notice as to conditions (special contract) upon which they carried the maps. The maps were misdelivered and damaged by wet, which it was held the conditions of the special contract covered, and the Judgment was therefore for Pickford. 82. l^W V. Pickford & Co.— Claim, £200, for the value of 1,000 maps enclosed in a case which became so injured in the Defendants' hands as to be wholly lost to Plaintiff — London to Athlone. The Defendants (Pickford & Co.) contended that at the time of the delivery of the case they gave notice to Plaintiff that they would not be responsible for the loss of or damage done to the maps unless same were insured according to their value, and paid for at the time of delivery ; that they DECLARATION OF VALUE AND CARRIERS' ACT. 129 accepted the case upon the conditions of the notice ; that in spite of said notice the maps were not insured according to their value or paid for. It appeared there had been a mis- delivery of the case. The following legal conclusions were drawn from this case, viz. : — A carrier is bound to convey goods only on payment of the full price (which depends on their value) for the carriage, and, if not paid, it is competent to him to limit his liability by special contract. A carrier who receives valuable goods, after notice to the sender that he will not be responsible for loss or damage unless a higher than the ordinary rate of insurance is paid for the carriage of such goods, does so on the terms of such notice. He is, notwithstanding this notice, bound to take ordinary care in the conveyance, and is liable not only for a total abandonment of his character or wilful negligence, but also for a conversion by misdelivery which has arisen from inadvertence or mistake, if such inadvertence or mistake might have been avoided by the exercise of ordinary care ; that in such case the burden of proof would lie on the Plaintiff. Baron Parke said — " We agree, if the notice furnishes a defence, it must be either on the ground of fraud or of a limitation of liability by contract, which limitation it is com- petent to a carrier to make, because, being entitled by common law to insist upon the full price of carriage being paid before- hand, he may, if such price be not paid, refuse to carry on the terms imposed by the common law, and insist upon his own." Judgment for carrier. — Tried at Exchequer of Pleas, June 10, 1841. — From, Law Journal Reports, vol. 19, page 382, 1841. (This is a very strong case in support of the custom of two rates — one at owner's risk and one at Company's risk.) Where Acceptance to Carry is by a Carter with a Collect- ing Cart at Sender's Place of Business. Case No. Clayton v. Hunt (1811) 72 Davey v. Mason (1841) 83 (/See under these cases.) Case No. Bart V. Eaxendale {1S51) ... 90 83. Davey v. Mason. — Action for £25 for a trunk, a box, and a small chest of luggage containing four silk dresses (made 9 130 DECLARATION OF VALUE AND CARRIERS' ACT. up), two gold chains and glasses, two £5 notes, and various articles of a lady's wearing apparel — "Horse Shoe" Inn, Stones End, in the Borough, Southwark (London), to Lindfield (Sussex). The Plaintiff had been stopping at the " Horse Shoe " Inn, and sent to the " Talbot " Inn, in the Borough, where the carrier stopped and received his goods, for him to call at the *' Horse Shoe " for the packages. He called and took the packages, and they were lost in transit, while the driver of the van was asleep. Plaintiff, by a female servant who helped to pack it, proved the contents of the trunk, except the bank notes, of the packing of which there was no evidence. The carrier (De- fendant) contended, to prove a carrier liable, the goods should be left at the usual, proper, and recognised booking-office, and received there by some agent of the carrier ; that by the Carriers' Act he was not liable for silk dresses, nor the gold chain and eye-glass (trinkets), the value and contents not having been declared. Chief Baron Lord Abinger said : — " Silk dresses made up for wear do not come within the meaning of the enactment that has been relied on, nor can a gold chain used for an eye-glass be considered as a trinket. The object of the Legislature no doubt was to protect carriers from liability where goods of great value were entrusted to them, and they did not have due notice of the amount of such value. With respect to the other point, it appears the Defendant's servant and van called for these things at the ' Horse Shoe ' just as it is the custom for carriers to do. If you are satisfied that this luggage was delivered to the Defendant's servant, as has been proved, I am of opinion that the Defendant is just as much liable in this action as if he had taken up these goods at the * Talbot ' Inn instead of having taken them up at the ' Horse Shoe.' " Verdict, £25 damages. — Tried in Court of Exchequer, Trinity Term, 184L — Garrington and Marshman's Reports, Nisi Priua, vol. 1, par/e 45. DECLARATION OF VALUE AND CARRIERS' ACT. 131 If the Value is Declared but no Extra Charge is Made nor Demanded, then the Carrier is Liable for the Loss. Sekrens v. G. N. (1861) Case No. 84 Case No. Baxendah v. L. C. Sr D. (1874) 85 DIGEST. In Behrens v. G. N. (I86I) a picture, value £110, was declared, but no insurance or extra charge was paid. It was held by the Exchequer Chamber that, the PlaintiiF having declared the nature and value of the goods, and the Company not having then demanded an increased charge, the Company had waived their right to such increased charge. Judgment against Company. In Baxendah v. L, C. <^ D, (i874) pictures, value £1000, London to. Calais. At Dover the case was allowed to fall into the sea. The value had been declared, but from the report it would appear no insurance was paid. The Company, however, were held liable. 84-1 Behrens v. Great Northern JRaihvay Company. — Action for £110 for a picture damaged, London to Newcastle. Plaintiff declared, on consignment note, the contents of the case, and also the value, but paid no insurance or extra charge. Company pleaded that, as no insurance or extra charge had been paid, they were not liable under Carriers' Act, 11 Geo. IV. and 1 "William IV., cap. 68. The Jury found a verdict for £35. The Company appealed to Court of Exchequer, where it was held that, the Plaintiff having declared the nature and value of the goods, the Company's servants ought then to have demanded the increased rate of charge, but not having done so, it must be taken that the Company had waived such increased charge, and that the Plaintiff, although he had not paid nor engaged to pay the extra rate, was entitled to recover the full amount of the damage. A further appeal was taken to Exchequer Chamber, when the" Judgment of Court of Exchequer 132 DECLARATION OF VALUE AND CARRIERS' ACT. was affirmed. — (Date tried not given; would he in 1861.) — Law Journal Reports^ vol. 31, page 301. 85. Baxendale v. London Chatham and Dover Railway Company. — Action for £1,000, value of two pictures damaged, and two sums of £248, taxed costs, and £266, untaxed costs of a law suit incidental to the damage of the pictures. The owner, Harding, delivered in London a case containing the two pictures to Pickford & Co. (Baxendale), consigned to Paris. Harding signed a " foreign declaration and consignment note," and described the contents of case as pictures, value £1,000. Pickford & Co. engaged the London Chatham and Dover Company to carry the case to their (Pickford & Co.'s) agents (Grardere & Co.) at Calais, and delivered a note describing the goods as a case of pictures, value £1000. It does not appear from the report that the Company demanded any extra charge for insurance. At Dover the case was allowed to drop into the salt water, and the pictures appear to have been utterly spoiled. Harding claimed from Pickford & Co. The Eailway Company denied liability under the Carriers' Act, and would have nothing to do with the claim. Harding brought an action against Pickford & Co., who contended they did not undertake a through contract, and only received the ease as forwarding agents, and thei^ responsibility had ceased when the damage arose, and that they were protected by the Carriers' Act. The Jury gave a verdict for £650 against Pickford & Co. Where- upon Pickford & Co. then commenced an action against the Railway Company, who first contested the matter, but ulti- mately paid £650 into Court ; but Pickford & Co., claiming to recover the costs, proceeded with the action at Kingston Assizes, and obtained a verdict for both bil-ls of costs. The Company appealed to the Court of Exchequer, when Baron Cleasby held that Pickford & Co. were entitled to recover such an amount of costs as were attributable to establishing the liability of Pick- ford & Co. for the amount recovered against them, and with this guide the jjarties ought to settle the amount. The Com- pany appealed to the Court of Exchequer Chamber, where Lord Chelmsford reversed the judgment of the Court of Exchequer, and held that the costs were iiTecoverable. Judgment for DECLAKATION OF VALUE AND CAERIERS' ACT. 133 €ompany. — Tried in Court of Exchequer Chamber, December 1 and 2, 1874. — From Law Journal Reports, vol. 44, jpage 20. If the Pkimary Object of an Article is Ornament, then it IS A Trinket. (See the case of Bernstein v. Baxendale, No. 44.) Formal Declaration not Necessary. CaBe No. Bradbury v. Sutton (1871) 86 DIGEST. In Bradbury v. Sutton (i87i; the carrier's collector of parcels was in sender's warehouse, and saw the parcel of silk packed, and waited to take it away. In signing sender's book he inserted the word " silks " after the entry. Sender told him that the parcel in question and another he was taking were worth £100, and he said "All right." Chief Baron Kelly said— "The words used by the Plaintiffs in this case constituted, in my opinion, a sufficient declaration of value, because they supplied information on which the carrier could have calculated the additional charge to be made." 86. Bradbury v. Sutton.— Kciion for £62 I7s. lOd. for eleven pieces of silk, lost in transit, Macclesfield to London. One Birchaugh, the carrier's collector of parcels, was at sender's warehouse, and saw the parcel of silk packed, and waited while it was being packed to take it away. In signing sender's book for the parcel, Birchaugh himself inserted the word "silks" after the entry. Sender told him that the parcel in question and another he was taking were worth £100, and he said "All right." Chief Baron Kelly, on the appeal case, said — " There can be no question that a sufficient declaration was made of the nature of these goods. The word ' silk' was written in the Plaintiffs' 134 DECLARATION OF VALUE AND CARRIERS' ACT. book, as a description of these goods, by the Defendant's servant^ and, with respect to the value of the goods, one of the Plaintiffs says that he told the ser\'ant that the goods were worth about £100. The other Plaintiff says that the words used were ' very nearly £100,' and the Jury have found that this evidence is true. What more was necessary ? Many different forms of words would be used by different people, according to their education and habits, which might be equally valid as a decla- ration of value, for the statute does not prescribe any set form of words. Now, in determining the sufficiency of a declaration of value, it is material to consider what is the object of requir- ing such a declaration. That object is to enable the carrier to fix the amount of additional charge to be made by him. The words used by the Plaintiffs in this case constituted, in my opinion, a sufficient declaration of value, because they supplied information on which the carrier could have calculated the additional charge to be made. If the carrier had thought the information too indefinite he might have required more particularity." Baron Channel said — " It i§ suggested that what was said was mere small talk, but the word ' silk' was intro- duced into the entry in the Plaintiffs' books at their request ; but it rather seems to me that the parties had the statute in their minds." Judgment against carrier. — Tried in Court of Exchequer, May 2, 1871. — From Weekly Reporter, vol. 19, page 800. Where the Character of the Goods are Visible and to be Seen, but the Value not Declared. Case No. WhaiteY.L.^Y.{1874:) 87 DIGEST. In Whaite v. L. (|- Y. (i874) a showman's mechanical figures and pictures were damaged. The articles were packed in a waggon with wooden sides, but open at top. Plaintiff contended that, as the nature of the articles could be seen, a declaration was unnecessary. Baron Bramwell held — " Though the waggon was so packed DECLARATION OF VALUE AND CARRIERS' ACT. 135 that the Company could see they were pictures of some sort, yet they could not say what pictures nor of what nature they were, their exact character being concealed by the mode of packing." Judgment for Company. 87, Whaite v. Lancashire and Yorkshire Railway Corny pany. — Action for £120 for damage to mechanical figm-es and pictm-es used by a showman. The articles were packed by sender in his waggon, and the waggon was carried on a railway truck in like manner as a furniture van is carried. The waggon had no top, but there were wooden sides — Wigan to Manchester, per passenger train. On the journey the figures and pictures were damaged, but the report does not say how. The Company contended that under the Carriers' Act they were not respon- sible for the pictures, their value collectively being over £10, and the value was not declared ; that the contract was for a waggon, which was clearly " a parcel or package " within the Carriers' Act. Plaintiff contended that, as the nature of the articles could be seen, a declaration was unnecessary. The case was first tried by Baron Pollock at the Liveq^ool Assizes, 1873, when a verdict was entered for Plaintiff, £120. Leave was given to reduce to £20 if the Appeal Court should determine that the Company were protected by 1 William IV., cap. 68. On the appeal case. Baron Bramwell said — " I think that this waggon, with what was in it, was a ' parcel or package ' within the meaning of the Carriers' Act. Plaintiff's manager said, < I packed these goods.' Then, if the goods were packed, this was a package. Though the waggon was so packed that the Company could see they were pictures of some sort, yet they could not say what pictures nor of what nature they were, their exact character being concealed by the mode of packing." Baron Cleasby and Baron Pollock concurred. Judgment for Company, reducing the verdict to £20. — Tried before the Court of Exchequer, February 11, 1874. — From Law Journal Re- ports, vol. 43, page 47. 136 DEGLAEATION OF VALUE AND CARRIERS' ACT. Carriers' Act, where the Carriage of the Goods is partly BY Land and partly by Water. Pianciani v. L. ^ S. \V. (1856) Le Conteur v. L. ^- S. W. (1865) CaB« No. 470 479 Baxendale v. G. E. (1869) Caee No. 66 DIGEST. In Powell's Mand Carriers^ page 119, it is set forth as follows : — "It lias been questioned, and appears to be still uncertain (1861), 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 Avithin the realm (Pianciani v. L. (J- S. W.) In Pianciani v. L. ^ S. W. (1856) passenger's luggage valued over £10, containing silks, furs, and laces, was lost, London to Jersey. The Court held that the con- tract was divisible — that is, for the land journey and the sea journey — and the Carriers' Act rendered the Company not liable. In Le Conteur v. L. ^ S. W. (1865) a chronometer, which was part of a passenger's luggage, had been put into a carriage at Southampton Station and stolen therefrom. The passenger was travelling on a return ticket, London to Jersey and back. The Court held the same as in the case of Pianciani v. L. <^ S. W., in favour of Company. In Baxendale v. G. E. (i869) a case of pictures, value £84, was carried, Rotterdam to London, on a bill of lading, and no declaration was made of value. The case was lost on the land journey, Harwich to London. The Court held that the contract was divisible — that is, as for the land journey and the sea journey — and that the Company were protected by the Carriers' Act. declaeation of value and carriers' act. 137 Horses Declared as only £10 Value to obtain Cheaper Carriage, whereas they were of Greater Value : the Carrier, if he Knows the Value of the Horse, cannot Charge Insurance on that Value unless Sender makes the Declaration of it. Case No. M'Cance v. L. ^ N. W. (1861) ... 740 Case No. Bohinson v. L. ^ S. W. (1865) ... 751 DIGEST. In M'Cance v. L. ^ N. W. (I86I) two horses were injured and one killed from defective state of bottom of w^aggon. The horses were carried by the waggon, and sender declared them as not exceeding £10 value each, but on the trial said they cost from £30 to £35 each. He claimed £4:0. Chief Baron Pollock, on appeal, held that Plaintiff (sender) was bound by his declaration as to the value. In Robinson v. L. ^^ S. W. (1865) a mare was taken to Liss Station to go to London. The station-master, who w^orked the telegraph, saw a message from sender to consignee stating the cost of the mare as £135. He refused to forward the mare unless £4 5s. insurance was paid, in addition to 17s. 6d., the ordinary carriage. Chief Justice Erie held that the knowledge of the Company (station-master) as to the value of the mare not derived from a declaration by the sender gives no title to the Company to demand a higher insurance. Carting Agents' Carter held to be the Company's Servant, AND THE Company held Kesponsible for ms Theft of Goods over £10 Value Undeclared. Case No. Machin v. L. S[ 8. W. (1848) 88 DIGEST. In Machin v. L. <^ S. W. (i848) the Company's carting agents' carter stole a bale of silk, value £150. Chief 138 DECLARATION OF VALUE AND CARRIERS' ACT. Baron Pollock said — " Chaplin & Home must be con- sidered as the servants of the Company, and anybody whom Chaplin & Home employed for the purpose of delivering these goods were also the servants of the Company ; and it makes no difference that, by reason of some contract between the Company and Chaplin & Home, the Company have not the power of dismiss- ing such servants." 88. Machin W.London and South Western Railway Gom- jpanij. — Action for £150 for a bale of silk, stolen by Company's carting agent s' carter — Andover Koad to London. On dehvery at Andover the value was not declared as over £10, and the Company contended that the carter was not their servant, and consequently they were protected from liability under the Carriers' Act. The case was first tried before Chief Baron Pollock, at the London Sittings, when a verdict was found for Plaintiff. Leave was given to move to enter a verdict for the Company if the Court should think the carter was not the servant of the Company. On the appeal case. Chief Baron Pollock said — " The effect of the Carriers' Act was to give an indemnity to the Company as carriers from liability in case certain conditions had not been complied with, which liability was re-imposed by the 8th section in those cases only where the loss has been occasioned by the felonious act of an actual servant of the Company. What is written in the delivery note proves that the Company undertook to receive the bale of silk in the country and to deliver it from thence to the Plaintiffs residence ; and it appears to me that, for the purpose of that delivery, the carter was in the employ of the Company within the meaning of the 8th section of 11 Ceo. IV. and 1 Will. IV., cap. 68. It appears to me that the liability cannot be got rid of because those whom the carrier employs in carrying out his contract may bear the name of ' agents ' or 'sub-contractors,' or any other fanciful title, for that every person who is actually employed in the performance of the contract which the carrier has undertaken to perform are his ser- vants within the section. Chaplin & Home must be considered as the servants of the Company, and anybody whom Chaplin DECLAEATION OF VALUE AND CARRIERS' ACT. 139 & Home employed for the purpose. of delivering these goods were also the servants of the Company; and it makes no difference that, by reason of some contract between the Com- pany and Chaplin & Home, the Company have not the power of dismissing such servants." Barons Eolfe and Piatt con- curred. Judgment against Company. — THed in the CouH of Exchequer, June 6 a7id 8, 1848. — From Law Journal ReyortSy vol. 17, page 271. Act of Declaration of Value over £10 to Originate WITH Sender. Batson v. Donovan (1820) .. Walker v. Jackson (1842) .. CaBe No. 50 89 Hart V. Baxendale (1851) . . . Case No. 90 DIGEST. In Batson v. Donovan (1820) Justice Holroyd said — " The value here does increase the risk ; if that value is concealed, it is concealed wrongfully, then why is the carrier to be liable ? The Plaintiff here concealed, and the carrier had not his due reward ; the carrier was deprived of that which, according to this case, is the foundation of the carrier's liability, viz., a reward proportionate to the risk ; and by not being apprised of what he received he was not put upon his guard to take Avhat, with reference to this box, would have been proper care." In Walker v. Jackson (1842) Baron Parke said — " I take it now to be perfectly well understood, according to the majority of opinions on the subject, that if any- thing is delivered to a person to be carried, it is the duty of the person receiving it to ask such questions about it as may be necessary. If he ask no questions, and there be no fraud to give the case a bad complexion on the delivery of the parcel, he is bound to carry the parcel as it is." In Hart v. Baxendale (i85i) Defendant's cart went to Plaintiff's warehouse to take up the goods, which were 140 DECLARATION OF VALUE AND CARRIERS' ACT. silk over ^10 value, and not declared. On appeal, Judge Patteson said — " We think the Act requires the person who sends the goods to take the first step by giving that information which he alone can give ; then the carrier may charge an additional price, but he can only charge the price notified and in his office." Judgment for carrier. 89. Walker v. Jackson. — Action for £10,000 for damage by salt water to boxes of watches and jewellery, Woodside Ferry to Liverpool. The boxes were under the seat of a carriage, and belonged to a Birmingham travelling jeweller. Both on the Woodside and Liverpool sides of the Mersey were slips. After unloading the carriage at Liverpool two of the Defendant's men were pulling the carriage up the slip incline, and it being too heavy for them, it ran back and was submerged in the water, and the damage occurred. Plaintiff recovered £21 1 damages. On the appeal case. Baron Parke said — " 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 receiving it to ask such questions about it as may be necessary. If he ask no questions, and there be no fraud to give the case a bad <;omplexion 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 answered improperly, so as to deceive, then there is no contract between the parties ; it is a fraud, which vitiates the contract altogether." — Tried in Court of Exchequer, 31 ay 31, 1842. — From Meeson and Welshy's Reports, vol. \Q,'page 161. 90. Hart V. Baxendale {Pickford & Go.) — Action for value of 12 pairs silk tights, 6 pairs silk hose, 2 Scotch fillibegs, 12 yards gilt fringe, &c. The package containing these goods was collected by cart from Plaintift 's warehouse at the Quadrant, Kegent Street, London, by Defendant, and was to be carted to Camden Town Station for conveyance by railway. The cart, after leaving the warehouse, went to Defendant's office in Eegent Street to complete the load, and DECLARATION OF VALUE AND CARRIERS' ACT. 141 there, it is alleged, the package was stolen off the cart. The package was over £10 in value, but was not so declared by Plaintiff, who made no declaration whatever. The case was tried at the Middlesex Sittings, Trinity Term, 1850, before Chief Baron Pollock, who directed the Jury to find for Defen- dant, on the ground of the Carriers' Act, 1 Will. IV., cap. 68. An appeal was taken, when Baron Parke reversed the decision, saying that he and the other Judges (excepting Chief Baron Pigott) were of opinion that " the Carriers' Act does not exempt carriers from responsibility for loss of silk, &c., delivered to them at any other place than their office, warehouse, or receiving-house where a notice is affixed ; and the goods in question having been delivered to the Defendant's servant in a cart at the Plaintiff's house without any special contract, the Defendant is responsible as a carrier at common law. The Defendant may elect within a reasonable time whether he will lodge a bill of exceptions." This bill was lodged, and a writ of error brought thereon, when Judge Patteson said — " We think the Act requires the person who sends the goods to take the first step by giving that information which he alone can give ; then the carrier may charge an additional price, but he can only charge the price notified and in his office, and he is bound, if required, to give a receipt when the money is paid. The declaration must be made in all cases, whether the goods are delivered at the office or elsewhere. In no case can the sender recover unless he has taken the step which the Legislature intended he should take in the first instance. The notice stuck up in the carrier's office required by section 2 is not a notice that the carrier means to avail himself of the benefit of the Act, and that all persons who send articles of a particular description and value shall tell him that they are of that description and value, but it is only a notice of what the extra charge is to be." This was practically a verdict for Defendant. — Tried at Court of Ex- chequer, 1851. — Exchequer Reports, vol. 6, page 769. 142 COMMON CARRIERS, SPECIAL CARRIERS, AND GRATUITOUS CARRIERS WITHOUT HIRE. Case Case No. No. 4). Benett V. F. <^ .0 (184:8) 469 35 Ingate V. Christie (1850) 185 187 Cmich V. L. 4- N. W. (1854) ... 380 ) ... 192 Munster v. South Eastern (1858) 449 68 Harrison v. L. B. ^ S. C. (1862)... 99 259 Liver Alkali Co. v. Johnson (1874) 92 91 DIG] 3ST. Liability of a Cakeiek as a " Common Carrier." (See also under " Where a Carrier may or may not Refuse to Carry.") Story on Bailments (sec. 494). Coggs V. Bernard (1703) . Forward v. Pittard (1785). Robinson v. Dunmore (1801) BrooTie v. Pickwich (1827) TTilson V. Brett (1842) Ross y. Hill (184:6) ... Stonj on Bailments (sec. 494) says — " 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 transportation of goods for hire as a business, and not as a casual occupation." In Coggs v. Bernard (i703) Chief Justice Holt held — " If a carrier is to have a reward for his services he is bound to answer for the goods at all events. This is the case of the common carrier, common hoyman (bargeman), master of a ship — which case of master of a ship was first adjudged in Mors v. Slew. Thus the law charges the person entrusted to carry goods against all events but the acts of God and of the enemies of the King." In Forward v. Pittard (1785) Lord Mansfield said — " It appears from all the cases for 100 years back that COMMON CAERIERS AND SPECIAL CARRIERS. 143 there are events for which the carrier is liable inde- peiulent of his contract. By the nature of his contract he is liable for all clue care and diligence, and for any negligence he is suable on his contract. But there is a further degree of responsibility by the custom of ihe realm; that is, by the common law the carrier is in the nature of an imurer. It is laid down that he is liable for every accident except by the act of God or the King's enemies." (The Judge then goes on to define " the act of God.") In RoUnson v. Dunmore (isoi), furniture conveyed by cart from London into the country was damaged by wet owing to the smallness of the tarpaulin. The carrier said — " I have plenty of sacks, and I will warrant the goods shall go safe." Justice Chambre held the Defendant liable, saying — " He is not a common carrier by trade, but he has put himself into the position of a common carrier by his particular warranty." In Brooke v. Pickwick (I827) Chief Justice Best said — " If coach proprietors A\dsh honestly to limit their re- sponsibility, they ought to announce their terms to every individual Avho applies at their office, and at the same time to place in his hands a printed paper speci- fying the precise extent of their engagement. If they omit to do this they attract customers under the con- fidence inspired by the extensive liability which the common law imposes on carriers, and then endeavour to elude that liability by some limitation which they have not been at the pains to make known to the indi- vidual who has trusted them. The merely putting up a board in their office ought not to satisfy a Jury that they have been at the pains to make a customer under- stand beforehand the limitation under which, after a loss, they seek to elude their general responsibility. I wish, therefore, that these notices had never been holden sufficient to limit the carrier's responsibility. It is too late, however, now not to hold that they are without efi'ect where the customer is distinctly informed of their existence." 144 COMMON CABRIERS AND SPECIAL CARRIERS. In Boss V. Hill (i846) a portmanteau was lost from a hackney coach between Paddington and Bridge Street, South wark. Chief Justice Tindal — "If Defendant was a common carrier his duty would have been to carry and deliver safely, and at all events. The words ' safely and securely ' therefore receive different inter- pretations with reference to the character in which the Defendant is charged. I can only infer that we are to construe these words ' safely and securely ' with refer- ence to the duty or the promise implied by the law from the particular position and relation of the parties, and not in the stricter sense contended for on the part of the Plaintiff." Judgment for coach proprietor. In Benett v. P. ^' 0. (i848) a passenger desired to travel by Defendants' steamers, Southampton to Gib- raltar, and Defendants refused to carry him, owing to some communication made them by the Portuguese Consul. On appeal, Chief Justice Wilde said — " Can a man be a ' common carrier ' of passengers from a place that is within the realm to a place out of it ? I see no reason for holdino; that ' common carriers ' must of necessity mean persons employed to carry within the realm and according to the custom." Judgment against P. & 0. Company. In Ingate v. Christie (isso) Baron Alderson said — " Everyone 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 everyone. If a man holds himself out to do it for everyone who asks him he is a common carrier ;. but if he does not do it for everyone, but carries for you and me only, that is a matter of special contract. Here we have a person with a counting-house, 'Lighterman' painted at his door, and he offers to carry for everyone." In Crouch v. London and North Western (January, 1854>' Chief Justice Jervis said — " I think that the Company holding themselves out as common carriers in England, and professing to carry, London to Glasgow, they are COMMON CAKRIERS AND SPECIAL CARRIERS. 145 liable for refusing to accept goods for Glasgow. The Company are common carriers, and must adopt the same course of practice to all ; and it being found in the case that it was their habit to carry packed parcels (tradesmen's enclosures) for everyone but the Plaintiff, they must act with the same justice to him as to the rest of the world." In Munster v. South Eastern (i858) the Company refused to label and put in guard's van for a pas- senger bundles of rugs, shawls, and small packages, and Plaintiff (a barrister) insisted that they should do so. Chief Justice Cockburn said — "The Plaintiff objects to the parcels being placed in the carriage, on the ground that the Company are thereby endeavour- ing to relieve themselves from their liability as common carriers. There was nothing to relieve the Company of being common carriers, and the act of their porter in taking the parcels to the lost luggage office was a wrongful act, for which the Company are liable." In Harrison v. London Brujldon ami South Coast (1862) Chief Justice Erie said— "The Company profess to carry dogs, and are, therefore, common carriers of dogs." In Liver Alkali Company v. Johnson (i874) a barge loaded with salt cake got upon a shoal in the river Mersey in consequence of a fog, and the cake was damaged. The case turned upon whether Johnson was a special carrier or a common carrier. Justice Blackburn, on the appeal case, said — "He (Johnson) carried for anyone who chose to employ him, but an express agreement was always made as to each voyage or employment of the Defendant's flats. We think that this describes the ordinary employment of a lighterman, and that both on authority and principle a person who exercises this business is a common carrier, in the absence of something to limit his responsibility." 91 . Ross V. ^-i^;.— Action for £20, the value of a port- manteau lost fi-om a hackney coach between Great Western 10 146 COMMON CARRIERS AND SPECIAL CARRIERS. Kailway, Paddington, and Grerrard's Hall, Basing Lane, and Bridge Street, Southwark, London. Plaintiff contended that the proprietor of the coach was responsible to convey him and his luggage " safely and securely." On the appeal case Chief Justice Tindal said — " If it had happened that the defendant was a common carrier his duty would have been to carry and deliver safely at all events with- out excuse, unless prevented by the act of Grod or King's enemies. If, on the other hand, he had been a mere gratuitous bailee, then a less degree of care and caution would have been required of him than is required from a bailee for reward. The words ' safely and securely ' therefore receive different inter- pretations with reference to the character in which the Defendant is charged. I can only infer that we are to con- strue these words ' safely and securely ' with reference to the duty or the promise implied by law from the particular position and relation of the parties, and not in the stricter sense con- tended for on the part of the Plaintiff. We cannot suppose it to have been an express contract to carry ' safely and securely.' " Judgment for coach proprietor. — Tried in Court of Common Pleas, April 30, 1846. — Froin Manning and Granger' a Com- mx)n Bench Reports^ vol. 2, page 877. 92' Liver Alkali Company v. Johnson, — Action for damage to salt cake, carried in a barge from Widnes to Liverpool on the river Mersey. The goods were injured by reason of the barge getting on a shoal in consequence of a fog. This was a peril of navigation, but could in no sense be called the act of Grod or of the Queen's enemies. On the first trial the Jury found there was no negligence on the part of the Defendant. Justice Blackburn, on the appeal casie, said — " The question raised is, whether the Defendant was under the liability of a bailee for hire, namely, to take proper care of the goods, in which case he is not responsible for this loss ; or whether he has the more extended liability of a common carrier, namely, to carry the goods safe against all events but acts of God and the enemies of the Queen. The Defendant was the owner of several flats, and he made it his business to send out his flats, under the care of his own servants, to carry cargoes to and COMMON CAKRIERS AND SPECIAL CARRIERS. 147 from places on the Mersey, but that it always was to carry goods for one person at a time. * He carried for any one who chose to employ him, but an express agreement was always made as to each voyage or emplojrment of the Defendant's flats,' which means, as we understand the evidence, that the flats did not go about plying for hire, but were waiting for hire by anyone. "We think that this describes the ordinary employment of a lighterman, and that both on authority and principle a person who exercises this business and employment does, in the absence of something to limit his liability, incur the liability of a common carrier in respect of the goods he carries. It was argued before us that the Defendant could not have this liability imless he held himself out as plying between two particular places, or had put his flat like a ship to go to some particular place and take all goods brought him for that voyage. In Lyon v. Mells^ the course of business of the Defendant is thus described : — " 'The Defendant keeps sloops for carrying for persons goods for hire, and also lighters for the purpose of carrying these goods to and from his sloops ; and when he had not employment for his lighters in his own business, he let them for hire to such persons as wanted to carry goods to other sloops.' " If there be any difference between the employment of the now Defendant, as described in this case, and the employment of the Defendant in Lyon v. Mells, it would seem that the latter was less clearly in pubhc employment. "We think, therefore, that the Judgment in the Court below was right, and should be affirmed." Justices Mellor, Archbald, and Grove concurred. Justice Brett dissented. Judgment against the carrier. — Tried inthe Court of Exchequer Chamber, June 26, 1874.— FroTJi Lmu RepoHs, Exchequer y vol. 9, page 338. 148 common carriers and special carriers. Liability of a Carrier as a " Special Carrier." Caee No. 17 ^- 18 Vic, cap. 31, sec. 7. Poweirs Inland Carriers ( Quotation). Gibbon V. Paynton (1769) 93 Crofts V. Waterhouse (1825) ... 94 Brind Y. Bale (18S7) 95 Wyld v.Ficfc/oT d{l8il) 82 Case No. Oxlade V. N. E. (1864) 279 Northampton Gas v. London and North Western (1868) 770 N. E. V. Richardson (1871) ... 100 Scaife V. Farrant (1875) 190 DIGEST. Caskieb empowered to make a Special Contbact (whebebt he becomes A Special Carbiek) with his Cdstomeb, which a Judge subse- quently MAY hold to have BEEN " JuST AND REASONABLE," 17 Sf 18 Vic, cap. 31, sec. 7. — Provided always that nothing herein con- tained 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." In Powell's Law of Inland Carriers., he quotes Great Northern v. Morville., and says — " 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 determine, and according to their finding the bailee will have the unlimited liabilities of a common carrier or the comparative immunities of a special carrier for hire." In Gibbon v. Paynton (i769) Lord Mansfield said — " There is a difference between a common carrier and that of a bailee (special carrier). The latter is only obliged to keep the goods mth as much diligence and caution as he would keep his own ; but a common carrier, in respect of the premium he is to receive, runs the risk of them and must make good the loss, though it happen without any fault in him — the reward making him answerable for their safe delivery." In Crofts V. Waterhouse (1825) Justice Parke said — " There is a wide distinction between contracts for the conveyance of passengers and those for the conveyance COMMON CAERIERS AND SPECIAL CAERIERS. 149 of goods. In the latter, 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. The question of negligence should certainly have been left to the Jury." In Blind v. Dale (i837) Defendant was a town carman keeping thirty or forty carts. One of his carts was taken off a public stand in Thames Street to cart furniture, and one package of furniture was lost. Lord Chief Baron Abinger said — " I think the Defendant is not a common carrier, and does not insure the safety of the goods at all events. I should say that this was a con- tract to carry ' safely and securely ' as far as regards the neglect of himself or his servant." In Wyld V. Pickford ci84i) maps, value £1,000, being articles named in Carriers' Act, were offered to De- fendant, who demanded an increased charge to cover the insurance risk ; this Plaintiff refused to pay. The Court held — " A carrier is bound to convey goods only on payment of the full price (which depends on their value) for the carriage, and if not paid, it is competent to him to limit his liabihty by special contract." In Oxlade v. North Eastern (June, i864) the Company declined to carry coal for individuals, and confined the carriage to colliery owners. Chief Justice Erie said — " I think the Company have a perfect right to say that they will carry coal only for colliery owners. For the reasons alleged by them in their affidavits, it is evident that they could not have the same control over the traffic if they carried coals for the general pubhc." In Northampton Gas v. London and North Western (1868) the axle of an owner's waggon broke, and the coal was lost. The Court held — "The Company convey coal in their own trucks only, upon special agreement and at their own discretion, for particular parties. The Company has a distinct statutory power 150 COMMON CARRIERS AND SPECIAL CARRIERS. to convey goods in vehicles provided by the consignee or sender concurrent with and distinct from the power to carry on their own account. The fact that the Railway Company on some occasions took charge of goods in a vehicle not provided by them would of itself exempt them on those occasions from the ordinary liability of a common carrier for the suffi- ciency of the vehicle. I have come to the conclusion, from all the facts, that the Company are not common carriers of coal. The Company have the right to decline to be common carriers of any particular class of goods, although they are common carriers of others." (See Johnson v. Midland.) In North Eastern v. Richardson (i87i) a dog tied to a spout on Kirby Stephen Station slipped its collar and was killed. Justice Willes said — " The Company in the present case, with reference to the dog in question, were in the position of ordinary bailees, not being common carriers of dogs, and only liable for the loss in the event of negligence on their part, and would not be liable if its loss was by reason of neghgence of the person who delivered the dog to the Company." In Scaife v. Farrani (isiB) the defendant was a carrier owning furniture vans, and he contracted to carry some furniture from Paignton to Plymouth, using the railway for part of the journey. The furniture was destroyed by fire during transit. Plaintiff signed a special contract. ,5ustice Lush held that there was no negligence, that the fire was accidental, that there was a special contract, and that the carrier was not liable, being a special carrier and not a common carrier. 93. Gibbon v. Paynton.— Action for loss of ^100 cash, hid in hay in an old nail bag, and delivered without declaration, so as to evade the extra cost of insurance of 3d. in the pound sterling — Birmingham to London. Lord Mansfield, on appeal, said — "There is a difference between a common carrier and that of a bailee (special carrier). COMMON CARRIERS AND SPECIAL CARRIERS. 151 The latter is only obliged to keep the goods with as much diligence and caution as he would keep his own ; but a common carrier, in respect of the premiuvi he is to receive, runs the risk of them and must make good the loss, though it happen without any fault in him — the reward making him answerable for their safe delivery. This action is brought against the Defendant upon the foot of being a common carrier. His war- ranty and insurance is in respect of the reivard he is to receive, and the reward ought to be proportionable to the risk. If he makes a greater warranty and insurance he will take greater care, use more caution, and be at the expense of more guards or other methods of security, and therefore he ought in justice to have a greater reward. Consequently, if the owner of the goods has been guilty of a fraud ujDon the carrier, such fraud ought to excuse the carrier. And here the owner was guilty of a fraud upon him ; the proof of it is abundant. The Plaintiff is a dealer in Birmingham. The price of the carriage of money from thence is notorious in that place ; it is the rule of every carrier there. It is fairly presumed that a man conversant in a trade knows the terms of it. Therefore the Jury were in the right in presuming that this man knew it. The advertisement and hand-bills were circumstances proper to be left to the Jury. The Plaintiff's having been used for a year and a-half to read this newspaper is a strong circumstance for the Jury to ground a presumption that he knew of the advertisement. Then his own letter strongly infers his consciousness of his own fraud, and that he meant to cheat the carrier of his hire. If he has been guilty of a fraud how can he recover ? Ex dolo raalo non oritur actio." Justices Yates and Aston concurred. Judgment for carrier. — Tried in Court of Xing' 8 Bench, A'pril 17, 1769. — From Burrows' B£ports, vol. 4, pcige 2299. 94. Crofts v. Waterhouse. — Action for being greatly bruised, wounded, and hurt by being pitched off the top of a coach which was overturned on the journey, London to Exeter. It was held that the proprietor of a stage-coach is not liable for an injury sustained by a passenger in conse- quence of the accidental overturning of the coach, unless such accident be occasioned by the negligence or misconduct of the 152 COMMON CARRIERS AND SPECIAL CARRIERS. driver. Therefore, where in an action for an injury of this description it appeared that the cause of the accident was the removal (since the coach had last passed) of one or two cottages that had previously stood on an angle of the road, by which means the driver was deceived as to the course of the road (it being night, though moonlight), and the Judge told the Jury that, as the road was of sufficient width, and there was no obstruction or want of light, the coachman ought to have kept within his limits, and a verdict of £100 was found for the Plaintiff, on the appeal case the Court granted a new trial, conceiving that it should have been left to the Jury to say whether or not the driver had been guilty of negligence. Justice Parke said — " There is a wide distinction between contracts for the conveyance of passengers and those for the conveyance of goods. In the latter, the parties are liable at all events, except the goods are destroyed or damaged by the act of Gfod or the King's enemies ; whilst in the former they are only responsible to their passengers in cases of eospress negligence. The question of negligence should certainly be left to the Jury." Judgment for carrier. — Tried in Couti, of Common Pleas, November 26, 1825. — From Moore's Reports, vol. 2, page 133. 95. Brind v. Dale. — Action for the loss of a package of furniture or luggage. Plaintiff required some packages re- moved from Nicholson's Wharf to Brook's Wharf, in London. About 6 p.m. he went to a stand of carts in Thames Street, at which a cart of Defendant's was plying for hire. It also appeared Plaintiff was an owner of thirty or forty carts which were in the habit of standing near the wharfs ready to be hired by any person who chose to engage them, either by the hour, day, or job, the Defendant being what is called a town carman. Lord Chief Baron Abinger said — " I think the Defendant is not a common carrier. Still, if I were to allow the Defendant to amend the declaration by stating that the Defendant for hire agreed to convey these goods, he would then be liable for the loss of them, if it occurred from the negligence of his own servants. I should say that this was a contract by the Defen- dant to carry safely and securely, as far as regards the neglect COMMON CARRIERS AND SPECIAL CARRIERS. 153 of himself and his servant, but not to insure the safety of the goods at all events." Judgment for carrier.— TViecZ at Nisi Prius, Michaelmas Term, l^ZI.—From Carrington and Payne's Reports, vol. 8, page 207. Liability of a Carrier as a " Gratuitous Carrier" without Hire. Case No. Nelson V, Mackintosh (1816) ... 96 Beachamp v. Powley (1831) 97 Oaee No. Aldridge T. Great Western (1864) 1* DIGEST. In Nelson v. Mackintosh (I8I6) Plaintiff was to work his passage, Trinidad to London, but missed his pas- sage, and left his chest of doubloons and dollars on board. The captain of the ship took the valuables out of the chest in presence of several passengers, and placed them in a canvas bag in his OAvn chest in his cabin. After arrival of the ship in London, the captain's chest and the valuables were stolen out oi the cabin. Lord Ellenborough left it to the Jury — Whether the captain had not, under the circumstances, by the intermeddling and removal, imposed on himself the duty of carefully guarding against all perils to which the property was exposed in consequence of the alteration ? Verdict against captain. In Beachamp v. Powley (issi) a driver of a coach was given a value parcel to carry to London as a private messenger, not as the agent of his master ; the coach- man was not to receive any pay for the conveyance. The parcel was lost. Lord Tenterden told the Jury — " It was the coachman's duty, having received it, to take care of it and deliver it as addressed ; and if there was great and somewhat extraordinary negligence on his part, the verdict ought to go against him." Verdict against the coachman. In Aldridge v. Great Western (i8C4) it was a case where empty fruit hampers, Hereford to Tiverton, had been carried free. The Company's terminus was Gloucester, and the hampers were lost on the Midland Railway between Gloucester and Bristol. A carrier, 154 COMMON CARRIERS AND SPECIAL CARRIERS. Smith, who signed the Company's conditions, was held to l)e an agent for both sender and consignee. Chief Justice Erie held it was not a through contract, saying — " To stipulate that under these circumstances they shall not be responsible for loss or delay on the further line seems to us just and reasonable." 96. Nelson V. Mackintosh. — Action for the V9,lue of a chest containing doubloons, dollars, and other valuables, Trinidad to London. Plaintiff went on board the "Arundel" with his chest, and was going to work his passage to London. Being casually on shore at the time when the convoy made signal for sailing, he was left behind. The Plaintiff's box was examined by the captain of the ship, and found to contain valuables, and was then nailed down and remained on the quarter deck. Towards the termination of the voyage, the captain, in the presence of several passengers, took the valuables out of the chest, put them into a canvas bag, and deposited it in his own chest in his cabin. At Grravesend the captain left the ship, and left the mate in charge ; an exciseman and two of the ship's crew were allowed to sleep in the cabin. Next morning the captain's trunk and the valuables were gone, and no one knew how. Lord Ellenborough said — " Every person who delivers goods to another to be carried for hire has a right to the utmost care. The carrier stands in the situation of an insurer, and is Hable for all losses except those which are occasioned by the act of God or of the King's enemies ; and where a person does not carry for hire, he is bound to take proper and prudent care of that which is committed to him. Such would have been the situation of the parties if no alteration had been made in the state of the box, but when the captain, from motives of pru- dence, opened the box, he was bound to intermeddle so as to replace it in its former place, state of security, and to restore all the guards with which it had before been protected. In this case the captain, by his conduct, exposed the property to peril and risk, and the value of the property imposed upon him an enhanced duty of vigilance, that his acts might not operate to the j^rejudice of the party. When he had ascertained the valuable nature of the property, it was a duty imperative upon him to restore it to at least its former degree of security. Now COMMON CARRIERS AND SPECIAL CARRIERS. 155 ■what was done in this case ? As they approached the land the property was taken out of the box and put into a canvas bag. When the Defendant had taken it wholly out of the box, he was bound to make his own trunk, in which it was deposited, as secure as possible. It was no longer the box of a seaman working his passage home, but ascertained to be an article of great value, which the Defendant was therefore bound to watch with great care and diligence. He left the Jury to say — 1. Whether the captain had not, under the circumstances, by the intermeddling and removal, imposed on himself the duty of carefully guarding against all perils to which the property was exposed in consequence of the alteration ? 2. Whether he had in fact carefully guarded the property ? and that, if they were of opinion that the conduct of the Defendant had imposed upon him the duty of carefully guarding the goods, and that he had been guilty of negligence, they were to find for the Plaintiff. Verdict for Plaintiff. — Tried at Nisi Prius, Hilary Term^ 1816. — From Starkie's Reports, vol. 1, page 227. 97i Beachamp v. Powley. — Action for a parcel of value lost, sent by coach, Bedford to London. A servant of one of the owners of the coach had been used as a messenger to give to the coachman the parcel. It was delivered to the coach- man on the road, and was neither booked nor any charge made for carriage. Plaintiff therefore, having no claim against the coach owners, sued the coachman. The coachman could not recollect what became of the parcel. Lord Tenterden said — " The question for the Jury will be whether there was gross negligence on the part of the coach- man (Defendant). Nothing was to be paid for its conveyance, but still, if the coachman received it, it was his duty to take care of it and deliver it at the coach office in London to which it was addressed. The parcel was of value, and known to him to be so, and it being his duty to deliver it, the Jury are to say whether there was great negligence on the part of the Defendant ; if there was not great and somewhat extraordinary negligence on his part, the verdict ought to be for him." Verdict against the coachman. — Tried at Nisi Prius, Feb. 3, 1831. — From Moody and RohinsorCs Reports, vol. 1, page 38. 156 SPECIAL CONTRACT CONTRASTED WITH COMMON CARRIERS' LIABILITY. SPECIAL CONTRACTS. BAILWAY AND CANAL TRAFFIC ACT, 1854, 17 ^ 18 Vic, cap. 31, sec. 7. Public Notices limiting Liability Illegal. 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 delivery thereof occasioned by the neglect or default of such Company or its servants, notwithstanding any notice, condi- tion, or declaration made and given by such Company contrary thereto, or in anywise limiting such liability ; every such notice, condition, or declaration being hereby declared to be null and void. Cakrier empowered to make a Special Contract with his Customer, ■WHICH A Judge subsequently may hold to have been "Just and Keasonable." 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." Limit of Money Damages for Cattle when Value is Undeclared. 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 £50, for any neat cattle per head £15, for any sheep or pigs per head £2, unless the person sending or delivering the same to such Company shall, at the time of such delivering, have declared them to be respectively of higher value than as above mentioned. Power for Company to Charge Extra when Value is Declared. In which case it shall be lawful for such Company to demand and receive, by way of compensation for the increased risk and care thereby occasioned, a reasonable percentage upon the excess of the value so declared above the respec- tive sums wj limited as aforesaid, and which shall be paid in addition to the ordinary rate of charge ; and such percentage or increased rate of charge shall be notified in the manner i)rcscribed in the statute 11 Geo. IV. and 1 "Will. IV., cap. 68, and shall be binding upon such Company in the manner therein mentioned. SPECIAL CONTRACT. 157 Pboof of the Value of Cattle, Articles, and Goods rests with Owner. 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. The Special Contract Note for Carriage at " Owneb's Risk " must BE Signed by Owner or his Servant who delivers Traffic. Pro\'ided also that no special contract between such Company and any other parties respecting the receiving, forwarding, or delivering of any animals, articles, goods, or things aforesaid shall be binding upon or affect any such party, unless the same be signed by him or by the person delivering such animals, articles, goods, or things respectively for carriage. This Act does hot affect the Carriers' Act where, if Goods are in Value over £10, a Declaration of same is compulsory to enable Owner to Recover anything for their Loss. Pro^-ided also that nothing herein contained shall alter or affect the rights, privileges, or liabilities of any such Company under the said Act of the 11 Geo. IV. and 1 Will. IV., cap. 68, with respect to articles of the descriptions mentioned in the said Act. 1^-2 Will. IV., cap. 58, sec. 1, relating to Interpleader Proceedings. — Whereas it often happens that a person sued at law for the recovery of money or goods wherein he has no interest, and which are also claimed of him by some third party, has no means of relieving himself from such adverse claims by a suit in equity against the Plaintiff and such third party, usually called a Bill of Interpleader, which is attended with expense and delay for remedy thereof, be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Par- liament assembled, and by the authority of the same, — That upon application made by or on the behalf of the Defendant, sned in any of His Majesty's Courts of Law at Westminster, or in the Court of Common Pleas of the County Palatine of Lancaster, or the Court of Pleas of the County Palatine of Durham, in any action of assumpsit, debt, detinue, or trover, such application being made after declaration and before plea, by affidavit or otherwise, showing that such Defendant does not claim any interest in the subject matter of the suit, but that the right thereof is claimed or supposed to belong to some third party, who has sued or is expected to sue for the same, and that such Defendant iloes not in any manner collude with such third party, but is ready to bring into Court or to pay or dispose of the subject matter of the action in such manner as the Court (or any Judge thereof) may order or direct, it shall be lawful for the Court, or any Judge thereof, to make rules and orders calling upon such third party to appear and to state the nature and particulars of his claim, and maintain or relinquish his claim, and up(m such rule or order to hear the allegations, as well of such third party as of the Plaintiff, and in the meantime to stay the pro- ceedings in such action, and finally to order such third party to make himself Defendant in the same or some other acticm, or to proceed to trial on one or more feigned issue or issues, and also to direct which of the parties shall be 158 SPECIAL CONTRACT. PliiintifF or Defendant on such trial, or, with the consent of the Plaintiff and ench third party, their counsel or attorneys, to dispose of the merits of their claims and determine the same in a summary manner, and to make such other rules and orders therein as to costs and all other matters as may appear to be jnst and reasonable. 23 cj- 24 Vic, cap. 126, sec. 12, relating to Interpleader Proceedings. — Where an action has been commenced in respect of a common law claim for the recovery of money or goods, or where goods or chattels have been taken or are intended to be taken in execution under process issued from one of the Superior Courts, or from the Court of Common Pleas at Lancaster, or the Court of Pleas at Durham, and the Defendant in such action, or the Sheriff or other officer, has applied for relief under the provisions of an Act made and passed in the Session of Parliament held in the first and second year of the reign of His late Majesty William the Fourth, intituled An Ad to enable Courts of Law to give relief arjainst adwerse claims rn,ade wpon persons having no interest in the subject of such claims, it shall be lawful for the Court or Judge to whom such applica- tion is made to exercise all the powers and authorities given to them by this Act and the hereinbefore-mentioned Act passed in the Session of Parliament held in the first and second years of the reign of His late Majesty William the Fourth, though the titles of the claimants to the money, goods, or chattels in question, or to the proceeds or value thereof, have not a common origin, but are adverse to and independent of one another. Caerier's Lubility in respect to Supplying Safe Vehicles fit for the conveyance. Li/on V. Melh (ISOi) Smith V. Home (1818) Beckford v. Crutwell (1832)... Shaw v. Y. if N. Mid. (1849) Austin .V. M. S. ^ L. (1851) Chippendale v. L. Sf Y. (1851) M'Manus v. L. Sf Y. (1859) Case No. 174 67 183 736 737 698 739 M'Cance v. L. ^ N. W. (1861) ... Gregory v. West Mid. (1864) ... Moffat \. G.W. (ISQ7) Northampton Gas v. L. Sf N. W. (1868) Combe v. L. ^ S. W. (1874) Case No. 740 699 742- 770 749' DiaEST. In Lyon v. Mells (i804) bales of yarn were damaged in a lighter from leakage. Lord Ellenborough said — " In every contract for the carriage of goods it is a term of the contract on the part of the carrier or lighterman, implied by law, that the vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public ; it is the very founda- SPECIAL CONTRACT. 159 tion and immediate substratum of the contract that it is so." In Smith v. Home (I8I8) a parcel had been safely carried from Worcester to London, but in the course of delivery was stolen from the cart. There was only one man with the cart, when it was usual to send two. It was held to be gross negligence in not sending two carters; and Justice Parke said — "A case of grosser negligence than this I have hardly ever known." Al- though the value was £67, and had not been declared, the carrier was held liable. In Beckford v. Criitivell (i832) a picture was not safely carried between London and Bath by carrier's waggon. Lord Tenterden left it to the Jury, who found gross negligence in that the carrier sent a waggon off with seven horses and only one waggoner, and that such conduct was not taking reasonable care. In Shaiv V. Y. and N. Mid. (i849) a horse was killed in a horse-box OAving to a defective partition. Special contract was admitted. Lord Chief Justice Denman, in giving Judgment for Company, said — "It may be that, notwithstanding the terms of the contract, the Plaintiff might have alleged that it was the duty of the Company to have furnished proper and sufficient carriages, and that the loss happened from a breach of that duty ; but the Plaintiff has not so declared (in his plea), but has alleged a duty {i.e.^ to carry safely and securely) which does not arise upon the special contract as it appeared in evidence." In Chippendale v. Lancashire and Yoi^hshire (issi) for loss of three heifers that got out of a truck in transit between the top rail of the truck and the close board- ing, special contract note was signed. Justice Coleridge held the Company not liable, saying that Plaintiff had a full opportunity of knowing what the truck was, for it was found that he saw one of the beasts put into it. In Austin v. Manchester Sheffield and Lincoln (issi) seven horses were injured from the truck, owing to a 160 SPECIAL CONTRACT. liot axle, being thrown out of position on the train. A special contract was signed. During stoppage at a station, Plaintiff requested that the horses should be taken out of the truck owing to the hot axle. This was not done. Judge Patteson, on appeal, said — "The gist of the complaint is not simply breach of the ordinary duty of a common carrier, nor of that arising on the special contract, hut negligence in persisting to go on with the insufficient truck after notice and request. But I cannot agree to this. The breach must arise by virtue of contract or dutyy Judgment for Company. In M'' Manns v. Lancashire and Yorksldre (i859) three horses were injured from a hole being made during transit in the bottom of the cattle truck. Special contract note was signed. Justice Williams, in Ex- chequer Chamber, held that the Company were responsible to supply a sufficient and proper vehicle, and any contract seeking to exempt them from so doing was unreasonable. Judgment against Company. In M^Cance v. London and North Western (I86I) two horses were injured, and one died from injury resulting solely from the defective state of the bottom of the waggon. There was a special contract proved. The Company were held liable on the footing that the horses were worth £10 each, as declared by sender. The case of M'-Manus v. Lancashire and Yorkshire ruled this decision. In Gregory v. West Midland (i864) a cow got out of a wagrfTon in transit, and was lost to the owner. It was admitted that the truck was not a proper truck, but there was a special contract, and a condition that the owner should examine the truck before his cattle were put into it. The Court of Exchequer felt bound to give judgment against the Company, following the decision oi'M^Mamis v. T^ancashire and Yorkshire^ but the Judges considered that otherwise the special conditions should ha\'e exempted the Company from liability. In Moffatt V. Great Western (1867) a mare, after being loaded at High Wycombe Station into a horse-box, SPECIAL CONTRACT. 161 got her foot into the manger ; she then slipped, and was strangled before the head rope could be cut. She was tied with two head ropes, one two feet and the other three feet long. It was contended that the Company's ropes should have only been 18 inches long. The Jury gave a verdict against the Company, although the opinion of Judge Keating appeared to be in favour of the Company. In Northampton Gas v. London and North Western (1868) the axle of an owner's waggon broke, and the coal was lost. The Judge said — " The fact that the Railway Company upon some occasions took charge of goods in a vehicle not provided by them, but by the sender or consignee, would of itself exempt them from the ordinary liability of a common carrier for the sufficiency of the vehicle. I consider the Company liable for an accident arising from a defect in any of the vehicles provided by other parties which could have been discovered by the Company, upon inspection at one of the usual points on the line, before the accident happened." In Combe v. London and South Western (i874) a colt broke its leg in a space of three inches, exposed when the flap of the waggon was let do^\Ti for the mare and colt to be unloaded. The Jury found the truck defec- tive, and Justice Keating, on appeal, confirmed the verdict against the Company. Carreers' Servants cannot Alter THEm Employers' Published Conditions of Carriage, nor Bind their Employers BEYOND the ScOPE OF THEIR OFFICIAL DuTIES. Case Case No. No. Walker v. Y. Sf N. Mid. (1853).. . 145 Slim V. G. N. (1854) ... 718 Giles V. Taff Vale (1853) . 211 Willis \. G. PF. (1865) ... ... 720 Anderson v. C. ^ H. (1853) . 730 Finlayw.N.B. (1870) ... ... 150 DIGEST. In Walker v. Y. cf' N. Mid. (i853) fish arrived too late for market. The Company had served sender with a 11 162 SPECIAL CONTRACT. special notice, which the Court treated as forming a special contract. Part of the notice set forth — " The station clerks and servants of the Company have no authority to alter or vary these conditions." Sender saw the station-master at Scarborough, and said, " What is the use of sending that old fellow down to serve these notices ? they are of no use Avhatever ; " and he added that it was not binding on him. Chief Justice Campbell said — " A person who has notice of the limited authority of an agent must be bound by such limited authority, and be supposed to have acted upon it. What sender says to a person who has no authority to alter the terms of the notice in any way is immaterial," In Anderson v. C. cf* H. (1853) horses, Dublin to Shrews- bury, for a fau', missed the fair. Plaintiff swore the Company's clerk in Dublin made a special contract binding the Company to have the horses in time for J the fair. The Chief Justice, in charging the Jury, ' decided, as a point of law, that Thomas Jones, the clerk placed in the position in the Company's ofBce, taking money from the public for carriage of goods and cattle, had inferentially authority to bind the Company by such a special contract. Judgment, on appeal, was against the Company. In Giles v. Taff Vale (1853) the Exchequer Chamber unanimously held that it is the duty of a Company carrying on trade to have on the spot an officer with authority to do for the Company all that in the ordi- nary exigencies of their business might require to be done promptly ; that in this respect there is no differ- ence between an ordinary partnership and a corpora- tion ; that there was sufficient evidence that Fisher (manager) had authority to this extent from the Com- pany, and that it was not necessary to show any authority under seal. In Slim V. Great Northern (i854) six pigs were lost between the town and Company's receiving station. The Company alleged their cattle porter, Morgan, SPECIAL CONTRACT. 163 never got them. Judgment was for Company. Justice Cresswell said — " I am of the same opinion, both on the ground that there was no evidence of any authority to Morgan to bind the Company without the usual documents, and also that it did not appear that he held himself out as having such authority." In Willis V. Great Western (1865) there was a delay to cattle. Plaintiff was allowed to state a conversation he had a week after the delay with a Company's servant, who admitted he forgot to send the cattle on. Held — The Company's servant has no implied authority to bind the Company by such admission. In Finlay v. North British (1870) Plaintiff contended he made a special contract with one of the Company's checkers, irrespective of the general agreement (oAvner's risk), and that the general agreement he had made was unjust, unreasonable, and illegal. Lord Kinloch held that the Plaintiff had proved a special contract with the Company's servant that the fish would be sent by a certain train. The majority of the Court, however, held Plaintiff bound by the owner's risk rate contract. Special Conditions where a Delay or Loss of Market arises. (See Loss of Market under " Delay where no Special Contract was made.") Streeter v. EorlocJc (1822) Walker v. Y. ^ N. M. (1853) ... Anderson v. C. # H. (1853) Hughes v. Great Western (1854) Crisp ) ten cattle, loaded in a salt van, were smothered ; the pin of lid of van did not prevent the lid closing down. A special contract note was signed. Chief Baron Pollock, on appeal, held the Company not liable, and the following condition "just and reasonable " : — " 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, from suffocation, or from being trampled upon, bruised, or otherwise injured in transit, from fire or from any other cause whatsoever." In Widte V. Great Western (i857) cheeses arrived too late for market. Sender signed a special contract. Justice Cresswell held the follomng condition reason- able : — " 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." In Leicis v. Great Western (i860) consignee, after having received goods for twelve days, then found a bag, in which had been packed clothes, contained empty corn sacks. Chief Baron Pollock, on appeal, held the Company's conditions that had been signed by Plaintiff reasonable, viz. : — "That no claim for deficiency, damage, or detention would be allowed unless made within three days after delivery of the goods, nor for the loss unless made within seven days of the time they should have been delivered." In Beal v. South Devon (i860) the action was for late delivery of sprats in London — at 10 a.m. instead of 6 a.m. Plaintiff had signed the owner's risk rate, where the Company denied liability for a loss of market. Baron Bramwell said — " It seems to me that the Company's stipulation is most reasonable, that the Company should not be liable for loss of market. Reasonableness is a relative term. Reasonableness is not a question of law, but a mixed question of law and fact, depending upon the particular circumstances of each case. Sender may say, ' I am content that you should not be insurers if you will make a less charge ; ' surely that would determine the question whether the contract was reasonable or not." SPECIAL CONTRACT. 201 In Harrison v. London Brighton and South Coast (1862) a dog escaped from the train without any neglect or default of the Company. Sender signed a special contract. Chief Justice Erie, in the Queen's Bench, held the following condition "just and reasonable": — "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 he liable for injury to any horse or other animal, or dog, of whatever value, when such injury arises wholly or partially from /ear or restiveness. If the value of any horse or other animal exceed £40, or any dog £5, the price of conveyance will, in addition to the regular fare, be after the rate of £2 1 Os., or 6d. in the pound upon the declared value above £40, whatever may be the amount of such value, for whatever distance the horse or other animal is to be carried." In Ashenden v. London Brighton and South Coast (isso), however, Justice Hawkins held the above condition in italics '■^unreasonable,'' feeling bound by Peek v. N^or'th Staffordshire, tried in 1863, one year after the trial of Harrison v. London Biighton atid South Coast. The case involved the loss of a dog, and the facts were much the same. In Aldridge v. Great Western (1864) it was a case where empty packages, carried free, were lost beyond the line of the first or receiving Company, one of whose con- ditions was as follows : — " The Company will not be answerable in respect of goods destined for places beyond the limits of the Company's railway, and as respects the Company their liability will cease when such goods shall have been delivered over to another carrier in the usual course of further conveyance. Any money which maybe received by the Company as payment for the conveyance of goods beyond their own limits will be so received only for the convenience of the senders, and for the purpose of being paid to the other carrier." Chief Justice Erie said — " We are of opinion this condition is legal, and does protect the Company. The Company do not thereby attempt to protect themselv(!S from injuries or dcilay happening on their own line, or through the negligence of themselves or their own servants, or even on a further line, where they liave received any compensation for carriage on that further 202 SPECIAL CONTRACT. line. The Company receive the money for the purpose of being handed over to the further carrier. To stipur. late that under these circumstances they shall not be res])onsible for loss or delay on the further line seems to me 'just and reasonable.'" In Lo)d V. Midland (isgt) dead meat, carried by a train due in London at 12.15 in the early morning, was from three and a half to nine and a half hours late, and the meat missed the Newgate market. Sender signed a special contract note. Chief Justice Bovill, in giving Judgment for Company, held the following con- dition to be reasonable : — " Fruit, fish, meat, poaltry, game, and an3' other perishable articles not taken away, or not paid for within six hours after arrival, if directed to be kept till called for or to the like effect, or not directed at all, or directed to a place not known by the Company's agents or servants, or refused by the person or at the place to whom or where directed, may be forthwith sold, without any notice to the sender or consignee, for the benefit of all concerned, by auction or other- wise, and payment or tender of the net proceeds of any such sale, after deduction of freight charges and expenses, shall be accepted as equivalent to delivery ; and the Company in the declaration mentioned, here delivered, will not be respon- sible for any damage to any such articles on the ground of loss of market, pro- vided the same be delivered within a reasonable time after the arrival thereof at the station from whence the delivery was made." In Booth V. North Eastern (1867) the following was a condition of the carriage of the cattle :— "The bearer undertakes the risk of loading, unloading, and carriage, whether arising from the negligence or default of the Company or their servants, or from defect or imperfection in the station, platform, or other place of loading or unloading, or of the carriage in which they may be conveyed, or from any other cause whatsoever." There was insufficient cattle-landing accommodation, and only one truck of cattle could be unloaded at a time; and while the cattle from the second truck were being unloaded, the cattle out of the first waggon got on to the line and were killed. Judgment was against the; Company. No alternative rate was offered to the sender. Chief Baron Kelly held, that if such alterna- tive rate were offered, " I am not prepared to say that the provision that the owner undertakes all risk of loading and unloading would be in itself unreasonable." SPECIAL CONTRACT. 203 In Leiuis v. Great Western (1877) Lord Justice Bram- well, in Court of Appeal, held the following conditions reasonable, and confirmed the Judgment for the Company : — " The Great Western Eailwaj Company hereby give notice that they have two rates for the conveyance of certain articles — one the ordinary rate, when they take the liability of the carrier ; the other a reduced rate, adopted when the sender relieves them of all liability of loss, damage, or delay, except upon proof that such loss, damage, or delay arose from ' wilful misconduct ' on the l^art of the Company's servants. "To the Great Western Railway Company, Station. , 187 . Receive and forward the undermentioned goods, to be carried at the reduced rate below the Company's ordinary rate, in consideration whereof I undertake to relieve the Great Western Railway Company, and all other Com- panies over whose lines the goods may pass, from all liability in case of damage or delay, except upon proof that such loss, detention, or injury arose from ' wilful misconduct ' on the part of the Company's servants. I also agree to the conditions and regulations on the back of this note." liiHaynes v. Great Western (i879) Justice Grove held the following condition to be a "reasonable condition" :-^ " I undertake to relieve the Great Western Railway Company, and all other Companies over whose lines the goods may pass, . . . from all liability in case of damage, . . . except upon proof that the injury arose from the ' wilful misconduct ' of the Company's servants." What have been Held to be "Unjust and Unreasonable" Conditions, under the Act of 1854, for a Carrier to Make on Agreeing with • his Customer to Accept A .Lower Kate when Relieved of Insurance LiABiLiTy. Simon v. Great Western (1856) Dunham v. L. ^ N. W. (1856) M'MoAius V. L. 4- Y. (1859) Gadon v. B. Sf E. (1861) ... M^Cance v. L. ^ N. W. (1861) LloyO, V. W. 4; L. (1862; ... Peeh V. North Staffordshire (1863; Case No. 165 146 739 321 740 741 168 Aldridge v. Great Western (1864) Allday v. Great Western (1864)... Gregory v. W. M. (1864) Kirby v. Great Western (1868)... Doolan v. Midland (1877) Ashenden v. L. B. ^ S. C. (1880) Case No. 14 683 699 688 702 101 DIGEST. In Simon v. Great Western (i856) Chief Justice Jervis 204 SPECIAL CONTRACT. held that the following condition was " unjust and unreasonable : — " Nor for loss, detention, or damage of any package insufficiently packed, marked, directed, or described, or containing a variety of articles liable to damage each other." The action was for damage to furniture, and the Chief Justice said — "Because it seeks to relieve the Company from a loss by reason of insufficient packing, it being quite immaterial Avhether the goods are properly packed or not if the Avhole package is lost ; and they rely on that as the ground of relief." In Dunham v. London and North Western (1856) delay to dead meat, tried conjointly with Simon v. Great Western^ Chief Justice Jervis found the following con- ditions '■' unjust and unreasonable," although signed by sender : — *' London and North Western RaAlway. — Park Lane Station, December 19, 1855. — Hay and straw, fnrniture, glass, marble, china, castings, and other brittle and hazardous articles, &c., conveyed at the risk of the owners. To be forwarded from Liverpool to London at owner's risk. — R. C. Dunham." The case was referred back to the Judge of the County Court for the circumstances under which the contract was entered into, and no further report is given. Case was probably compromised. In M''Manus v. Lancashire and Yorkshire (i859) the damage to three horses arose from a hole being made in the bottom of the truck, and the following " special condition," duly signed, was held by the Court of Exchequer Chamber " unjust and unreasonable " in respect to exempting Company from liability : — " This ticket is issued subject to owners undertaking all risks of convey- ance, loading, and unloading whatsoever, iis the Company will not be responsible for any injury or damage (howsoever caused) occurring to live stock of any description travelling on the Lancashire and Yorkshire Railway or in their vehicles." In Garton v. Bristol and Exeter (May 3, iS6i) the Court held the following condition on Company's consign- ment note •' unjust and unreasonable," and the Company cannot insist upon senders signing such conditions : — "That the Company should not be liable for the loss, detention, or damage of any package insufficiently packed." SPECIAL CONTRACT. 205 In M'-Cance v. London and North Western (isei) horses were injured from defective state of bottom, of waggon, and Baron Bramwell held the following condition unreasonable, and the Court bound by M'^Manus v. Lancashire and Yorkshire : — " And in consideration of the rate charged for conveyance of such horses, I hereby agree that the same are to be carried entirely at the owner's risk." In Lloyd v. Waterford arid LiinericJc (1862), horses de- layed and injured, sender was offered two rates : — Con- dition A — Lower rate, owner's risk, Company to be exempt from all liability; condition B — Company's risk. The Company would not be liable for injury unless pointed out to the Company's agent at the time of unloading. The Court of Queen's Bench (Ireland) held condition A unreasonable, and condition B also unreasonable, from Plaintiff being obliged to point out at the time of unloading the injuries the animals might have sustained. In Peek v. Nortli Staffordshire (isesj the sender wTote — " Please forward the three cases of marbles not insured to W. Peek, Esq., to be called for at Camden Town Station, London." The damage arose from wet. The Lord Chancellor said — "The Act (1854) expressly states that any condition having for its object to relieve the Company from liability occasioned by the neglect or default of such Company shall be null and void." If the present condition had been embodied in a contract, it would then exempt the Company from responsibility for injury, however caused, including, therefore, gross negligence, and even fraud or dishonesty, on the part of the Company's servants. I am of opinion that this is a condition which it would have been the duty of a Court or Judge to hold to be neither just nor reasonable." In Aldridge v. Great Western (i864), liability for safe transit of empty packages, the Company's condition notice was : — "The Company will not be answerable for the loss or detention of, or 20 () SPECIAL CONTRACT. diimagc to, wrappers or packages cif any description charged by the Company jis empties." , ,: ; J ,yj Chief Justice Erie said — " We are by no means prepared to accede to the suggestion that because no charge is made for the return of the empty packages therefore the Company necessarily convey them gra- tuitously. The Company may be justly considered as having had the carriage of the empties prepaid in the shape of the previous payment for the carriage of the same packages when full including an obligation on the Company to carry the empties back without further charge." In Gregoi'y v. West Midland (1864) damage arose to a cow, and the truck, it was admitted, was not a proper truck ; and the following condition in a signed special contract ticket was held insufficient to exempt the Company : — "That the sender is required to see to the efficiency of the waggon before he allows bis stock to be placed therein, and defects pointed out in writing before the train leaves the station." Chief Justice Pollock said — " If the case of M^Manus V. Lancashire and Yorkshire had been undisturbed by the Court of Error, I should have now thought the Company entitled to our Judgment in this case. In Allday v. Great Western (1864) the following con- ditions in the special contract were held unreasonable : — "Received from Allday the undermentioned animals, on the conditions stated below, and at special reduced charge below the rates authorised by law ; the loading and unloading to be performed by the sender, and any assistance voluntarily given by the Company's servants to be at the risk of the owner. The Company are not to be subject to any risk in receiving, loading, forwarding, or transit and unloading, nor to be amenable for any damage, actual or conse- quential, arii^ing from suffocation, from being trampled on, bruised, or otherwise injured, from fire or any cause whatsoever, nor for any consequences arising from overcarriage, detention, or delay in or in relation to the conveying or delivery of the said animals, however caused. The Company is not bound to send the animals by any particular train, or to carry or deliver them within any certain or definite time, or in time for any particular market. If, on the arrival of the cattle or other animals at their destination, no one shall be ready to receive the f-ame on behalf of the consignee, the Company will, at the discretion of the superintendent of any station, send such animals into yards or other convenient place?, and at the expense and risk of the sender or consignee, and, if not claimed within seven days, the same will be sold to defray expenses and SPECIAL CONTRACT. 207 pay charges. In order to gnard against disappointment, the public arc rej :;m- mended to give two clear days' notice of their intention to send cattle from any station, so that the Company may, if possible, provide trucks ; and, to afford time for receiving and loading such cattle and stock, they shall be at the station not less than two hours before the departure of the train by which they are intended to be conveyed. N.B. — The conditions cannot be altered or dispensed with by any person whomsoever." Chief Justice Cockburn said — "The Company claim absolute immunity from all injury arising from delay caused by their own negligence. This I take to be an unreasonable condition. The condition (as it stands) is on the face of it unreasonable." The cattle had been overcarried and delayed, and consequently damaged. In Kirhy v. Great Western (1868) cattle loaded on a Monday afternoon did not get to their destination until Wednesday, and were damaged by the delay. Owner's risk note was signed. Baron Martin said — " The particular condition (as to delay) has been held unreasonable in Allday v. Great Western^ which I am bound to follow. As to the conditions of the special contract, my opinion is well known — that the condi- tions must be treated as a whole, and if one part is unreasonable the whole is bad. If Railway Companies will persist in inserting conditions which have been condemned by the Courts they must take the conse- quences." In Simon v. Great Western Chief Justice Jervis, in giving Judgment, where there were two conditions, held one to be good and the other to be bad. In Doolan v. Midland (i877) Lord Blackburn, in the House of Lords, held the following condition " un- reasonable." It was a case where cattle had been lost in the wreck of the "St. Columba," and the Jury found the loss arose by the negligence of the crew, and not by any peril of the sea : — "Improper, careless, or unskilful navigation, or any default or negligence of the master or any of the officers or crews of the Company's vessels." - In Ashenden v. London Brighton and South Coast (188O) the following condition was held to be " unjust and 208 SPECIAL CONTRACT. unreasonable," no {ilternative or optional rate being olt'crcd to s(.'nder. It was a case of a dog being lost that had slipped its collar : — "The Company will in no case be liable for injury to any horse or other animal, or dog, of whatever vivlne, where such injury arises wholly or partially from fear or restiveness." The Brighton County Court Judge held the con- ditions to have been " unjust and unreasonable," but according to Dunham v. London and North Western no County Court Judge has power to determine such a point. Justice Hawkins, in Exchequer Court, held that " it was clear the condition was framed to cover every loss, even though occasioned by the wilful misconduct of the Company's servants, without, as in the case of Lewis V. Great Western^ giving sender an optional rate. If the Company had stipulated ' that they would not be responsible for loss resulting from mere accident, without neglect or default,' such restriction of their common law liability would have been both just and reasonable." Where Drovers' Passes were issued for Drovers to Accom- pany Cattle: but the Drovers did not Accompany the Cattle, ajntd the Company were Held not Liable for Errors, Damages, or Losses. Caee Case No. No. Allen V. L. ^- Y. (1870) 726 Brady y. City of Dublin Co. (1871) 727 DIGEST. In Allen v. Lancasldre and Yorkshire (1870) a cow was exchanged for an inferior one at the unloading in Liver- pool. Baron Hughes held the Company not liable, as the drover, who had a pass, did not travel with the cattle. In Brady v. City of Dublin Coiapany (i87i) a pig was found short on the pigs being sorted in Liverpool. The Dublin Recorder held the Company not liable, as the drover, who had a pass, did not travel with the pigs. SPECIAL CONTRACT. 209 A Special Contrac?! does not Exempt a Carrier from Liability WHEN HE Delivers the G-oods to a Wrong Consignee. Wi/ldY.Pickford(18il) Hoare v. (;. W. (1877) Case No. 82 , 238 Goldsmith v. G. E. (1881) Case No. , 153 DIGEST. In Wyld V. Pickford (i84i) there had been a mis- delivery and damage to maps, valued at £200, but which sender refused to insure, and Pickford carried on a notice that he would not be responsible for the loss of or damage to unless they were insured. The Court held the carrier, notwithstanding this notice, as bound to take ordinary care in the conveyance, and as liable, not only for a total abandonment of his char- acter or wilful negligence, but also for a conversion by misdelivery which has arisen from inadvertence or mistake, if such inadvertence or mistake might have been avoided by the exercise of ordinary care. In Hoare v. Great Western (i877) 140 sacks pollard were delivered by the station-master at Pewsey to Jarvis, when consigned to Jeeves. Lord Coleridge said — " He deliberately gave up the goods to the wrong pei'son without making any inquiry, and that amounts to ' wilful misconduct ; ' and it is not the less wilful misconduct because it is also gross negligence, and I hold the Company liable." The usual special contract had been duly signed. This case was held to form a precedent, which was followed in the case of Goldmnith v. Great Eastern^ where two bags clover seed, carried under a special contract, were delivered to the wrong consignee. 14 210 SPECIAL CONTRACT. Where the ('akkiage ls partly by Sea and partly by Land. Case No. 81 ^ 32 Fie, ca^). 119, sec. 14. Piandani v. L. 4" S. W. (1856)... 470 Le Conteiir v. L. ^ 8. W. (18G5) 479 Baxendale t. G. E. (1869) 66 Case No. Moore Y.Midland (1875) 701 Doolan V. Midland (1877) 702 Cohen v. S. E. (1877) 473 DIGEST. 31 f>- 32 ric, rap. 119, sec. 14 (1868).— Where a Company by through booking contracts to carry any animals, luggage, or goods from place to place, partly by rail and partly by sea, or partly by canal and partly by sea, a condition exempting the Company from liability for any loss or damage which may arise during the carriage of such animals, luggage, or goods by sea from the act of God, the King's enemies, fire, accidents from machinery, boilers, and steam, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, shall, if published in a conspicuous manner in the office where such through booking is effected, and if printed in a legible manner on the receipt or freight note which the Company gives for such animals, luggage, or goods, be valid as part of the contract between the consignor of such animals, luggage, or goods and the Company, in the same manner as if the Company had signed and delivered to the consignor a bill of lading containing such condition. For the purposes of this section the word " Company " includes the owners, lessees, or managers of any canal or other inland navigation. In Piandani v. London and South Western (1856) a portmanteau, passenger's luggage, containing silks, furs, and lace, was lost between London and Jersey. Its value, £2,500, was not declared. The Court of Common Pleas held that the through contract was divisible, and that the Carriers' Act protected the Company for the land journey. In Le Conteur v. Lotidon and South Western (i865) a chronometer put in a carriage was stolen before the train left. The passenger was booked, London to Jersey and back. Chief Justice Cockburn held that " this case was controlled by that of Piandani v. South Eastern, in which case the Court of Common Pleas expressed a strong opinion that the contract in such a case was divisible (the land and sea journey), and that, as far as regarded the conveyance in this country, it would afford the Company a protection under the SPECIAL CONTRACT. 211 Carriers' Act. I entirely concur in the view there taken," Judgment for Company. In Baxendale v. Great Eastern (i869) a case of pictures had been lost between Rotterdam and London, via Harwich ; value £84. The case was received at Rotterdam on a Bill of Lading^ and no declaration of value was made. The contention was that carrying under a bill of lading, partly by sea and partly by land, constituted a special contract, and that the Company were water and not common carriers, and could not be exempt by favour of Carriers' Act (value over £10). The Exchequer Chamber held that the Company were protected, as section 6 of Carriers' Act says nothing in the Act " shall extend or be construed to annul or anywise affect any special contract between a common carrier and any other parties for the conveyance of goods." In Cohen v. South Eastern (1877) a trunk, value £73, fell into the sea at Folkestone Harbour. Lord Justice Mellish, in Court of Appeal, held that the Company's notice did not protect them, as by section 7, Railway and Canal Act, such notices were null and void. The contract to carry the passenger was made at Boulogne, but it was held that the last clause of section 16 of Act (1868) applied, viz.: — "The provisions of the R::"]way and Canal Act, 1854. so far as the same are applicable, shall extend to steam vessels and to the traffic carried thereby." It appeared that under French law the Company would have been also liable. In Doolan v. Midland (isn) cattle were lost in the wreck of " St. Columba," and the Jury found the ship was lost by negligence of the crew, and not by any peril of the sea. A risk note was signed. Lord Blackburn, in House of Lords, held that the Avhole of the Railway and Canal Act, 1854, extends to the traffic on steamboats a railway company may own or tvork, and the Act (1871) extends this to " steam vessels and the traffic carried thereby." This makes section 7 of Act (1854) rule the case, and in Peek v. North Stafford- 212 SPECIAL CONTRACT. shiir it was held that under that section a Company could not by special contract exempt itself from negligence. In Moore v. Midland (isib), which was, like the case of Boolanv. Midland, for cattle lost in the " St. Columba," the same decision had been previously given by the Court of Common Pleas, Ireland. Jury to be Told as to Specml Contract. Case No. Crisp Sf Thompson v. Y. if N. ^ic/. (1854) 675 Case No. Hughes y. G. W. (1854) 676 DIGEST. In Hughes v. Great Western (1854) pigs were delayed, and sender had signed a special contract note. The Assize Judge non-suited Plaintiff. On the appeal case, Chief Justice Jervis said — "It is quite clear that the pigs were not received on the terms stated in the declaration, and the Judge ought to have told the Jury to find for the Company on the plea setting up the contract." In Crisp (f- Thompson v. Y. ^ N. Mid. (i854) cattle were delayed. Sender accepted the cattle ticket, with a special condition at back. The County Court Judge left the question to the Jury, whether the Company accepted the cattle as common carriers, or under a special contract. The Chief Justice, on appeal, held that it was misdirection to leave the point of contract to the Jury ; he (County Court Judge) gave the Jury an opportunity of deciding against the Company con- trary to law, and they did so. Judgment reversed, and in favour of Company. special contract. 213 Where the Words " Owner's Risk " are inserted on Sender's Consignment Note, and no Regular Form of Contract Document Passes between Carrier and Sender. Case No. Malcolmson v. G. S. S,- W. (1860) 166 Caaa No. Lewis V. G. W. (1877) 172 DIGEST. In Malcohnson v. Gi-eat Southern and Western (iseo) the consignment note, upon which was written " Owner's risk," had been read over and explained to sender's porter, who affixed his mark, duly witnessed. Justice Keogh, at the Carlo w Assizes, said — " Provided sender expressly contracts with the Company; but the mere words 'Owner's risk,' to which sender's man affixed his mark, was not such a special contract to release the Company from all risk " (of breakage of a papier-mache fragile chair). The report makes no mention of an optional rate. In Lems v. Great Western (i877) the consignment note was sender's own form, with the remark " Owner's risk," and the counterfoil which the Company signed bore the same words — " Owner's risk." Sender was examined, and admitted he was in the habit of sending goods at the owner's risk rate, and was aware of the Company's conditions. The note was signed, " From W. J. Hutchinson." Lord Justice Bramwell, in Court of Appeal, held that the contract, as set out in sender's consignment note, was sufficient. Horses, Cattle, or Dogs Lost or Injured from Fear, Restiveness, or Inherent Vice. Case No. Stuart V. Crawley (1818) 98 Chippendale v. L. S^- Y. (1851) ... 698 Harrison v L. B. fc S. C. (1862) 99 Moffattv. G. >F. (1867) 742 North E. V. Richardson (1871) ... 100 Case No. Kendall v. L. §- S. W. (1872) ... 743 G.W.y. Blower {19,12) 700 Gill V. M. S. Sr L. (1873) 728 Ashenden v. L. B. |- S. C. (1880) 101 DIGEST. In Stuart v. Crawley (I8I8) a dog was accepted by the Grand Junction Canal Company to carry, with only a 214 SPECIAL CONTRACT. striiio' i'wd round his neck. The dog was tied up in a M^atch-house, but he got away. Lord Ellenborough held that the Company had the means of seeing that the dog was insufficiently secured, and as they accepted him so, they were liable. In Chippendale v. Lancashire and Yorkshire (i85i) three heifers got out of a cattle truck, through a space betAveen the close boarding at the lower part of the side of the truck and a rail which ran round the top of the truck. Special contract was signed. Justice Coleridge held that the Plaintiff was not entitled to maintain this action, and that by the terms of the ticket it is to be understood that the Plaintiff took upon himself all risk whatever of damage to the animals during the journey, and that the Company are fully protected. In Harrison v. London Brighton and South Coast (I802) a dog, valued at <£21, escaped from the train during transit, without any neglect or default of the Company. The Company relied on their risk note as to value over <£5, which sender had signed (see case for condition). Chief Justice Erie, in the Queen's Bench, held the special condition reasonable, and the Company exempt from liability for any compensation. In Moffatt V. Great Western (ise?) a mare had been loaded in a horse-box, and before the truck had been put on the train the mare got strangled. She was tied with two ropes of three feet and two feet long. Plaintiff contended that the ropes should not have exceeded eighteen inches. The Judge pointed out to the Jury that the viciousness of the animal was a question for them to decide. The Jury gave a verdict against the Company. In North Eastern v. Richardson (i87i) a dog in transit was, at Kirby Stephen (where a change of train occurred), tied up by the strap to a spout on plat- form. The dog slipped its collar, and was killed. Justice Willes held the Company not liable, contrast- ing the case of Stuart v. Crawley— '' Uqyq {North SPECIAL CONTRACT, 215 Eastern v. Richardson) the dog was delivered with a collar and a strap, which clearly indicated that the proper mode of securing the animal was by these." The Company gave no ticket when they received the dog. In Great Western v. Bloioer (i872) a bullock escaped out of a truck in transit, and was killed. Judge Willes held that the accident was caused by some inherent vice in the bullock, and no carrier is obliged to have a new carriage for every journey, and merely suggesting that there might be a better truck is not sufficient to meet such iindino-s. o In Kendall v. London and South Western (i872) a horse Avas loaded with saddle upon it, and the stirrups hanging down. The horse was severely injured. Baron Bramwell said — " There is no doubt the horse was the immediate cause of its own injuries. It slipped, or fell, or kicked, or plunged, or in some way hurt itself. If it did so from no cause other than its inherent propensities — 'its proper vice,' that is to say — from fright or temper, or struggling to keep its legs, the Company are not liable. If from the Company's negligence, it would be otherwise." Judgment for Company. In Gill V. M, S. ^ L. (i873) a restive cow was let out of a cattle truck. Plaintiff said to the porter — " Don't let that cow out ; if you do, she will go slap at you." The porter said — " Close the gate." Plaintiff said — " I shall go outside," and did so. The cow, let out, rushed up and down the cattle platform in a wild state, jumped over the rails of a pig pen on to the line, ran into the tunnel, and was killed. Justice Lush, on appeal, held the Company's notice as to restive cattle did not protect them, and that the mischief was attri- butable to the porter, who, against the Plaintiff's advice, let out the cow before she had been quieted. In Ashenden v. London Brighton and South Coast (isso) a greyhound, valued at £10, slipped its collar when being transferred at Beckenham Junction, ran down 21 G SPECIAL CONTRACT. the line, and was lost. One condition of the ticket ^vns — " The Company will in no case be liable for injury to any horse or other animal, or dog, of whatever value, where such injury arises wholly or partially from fear or restiveness." Justice Hawkins held this condition unreasonable, and gave Judgment for Plaintiff, feeling bound by Peek v. North Staffordshire, tried in 1863, one year after Harrison v. London Brighton and South Coast. (If the condition had been simply " that the Company would not be responsible for any dog that slipped its coUai'," it is most probable they would have been freed from liability.) 98, Stuart V. Crawley. — Action for value of a greyhound that slipped his collar and was lost. The Grand Junction Canal Company accepted the dog to carry from London to Harefield Lock. The Company's book-keeper accepted the dog with a string tied round his neck, and he was so tied up in a watch- box ; in half an hour he was not to be found. The Company pleaded the dog had not been deli\ered in a state of security ; there was no collar about his neck, but only a cord ; that it was similar to the dehvery of goods imperfectly packed, where the loss arises from want of care on part of owner. Lord Ellenborough held the Company were responsible ; they accepted the dog, and gave a receipt for same. The case was unlike goods imperfectly packed, since in such case the defect was not visible ; but in this case the Company had the means of seeing that the dog was insufficiently secured. — Tried at Nisi PHus, before Lord Ellenhorough, 1818. — From Starkie's Re- ports, vol. 2, page 323. 99. Harrison v. London Brighton and South Coast Rail- way Company. — Action for £21 for a dog that escaped from the train during transit, without any neglect or default on the part of the Company, London to Worthing. The case was tried in the Court of Queen's Bench, May 29, 1860, and November 27, 1861, and a verdict given for Plaintiff. The Company appealed to the Exchequer Chamber, of which this is an abstract report. The Plaintiff paid 3s. carriage, and signed the following risk note : — " The Company v.ill not he liable in any case for loss or damage to any SPECIAL CONTEACT. 217 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 £5, the price of conveyance will, in addition to the regular fare, be after the rate of £2 10s., or 6d. per pound upon the declared value above £iO, whatever may be the amount of such value, for whatever distance the horse or other animal is to be carried." The Plaintiff made no declaration of value. Chief Justice Erie said — " The Company profess to carry dogs, and are there- fore common carriers of dogs. They likewise profess their liability for dogs over £5 value is limited, that if the excess over £5 value be not declared and paid for the Company will not be liable. The loss of the dog occurred from pure accident,, and was not occasioned by any neglect or default on either side. The Judgment of the Court below was for Plaintiff; but upon error, I am of opinion that it ought to be x-eversed. If the case had occurred before the Railway and Canal Traffic Act, 1854, the Company would have been entitled to succeed, being exempt from liability for loss by the terms of their contract. See Austin v. Manchester Sheffield and Lincolnshire Railway; also Ca^rr v. Lancashire and Yorkshire Railway. Then is the defence which would have existed before that Act defeated thereby ?- I think not. (1) The 7th section of that Act has no application to this case. (2) If the statute has application^ the condition in the contract was just and reasonable. The 7th section is confined to losses and injuries occasioned by mis- conduct by Company, and not occurring through pure accident. The enactment runs — " ' Every Railway and Canal Company shall be liable for the loss of or injury to any horse or thing in the carrying thereof occasioned by the neglect or default of such Company, notwith.standing any condition, &c., made by such Company to the contrary thereof or limiting such liability, every such condition, &c., being hereby declared void.' " Then follow provisoes. The section declares that the Com- pany shall be liable for the loss of an animal occasioned by the neglect or default of the Company, and if the loss was not so occasioned the section has no application. Neglect or default would express culpable conduct. If intended to pro- 218 SPECIAL CONTRACT. vide for all loss, however occasioned, the words, 'loss occasioned by neglect or default of the Company,' would have no meaning or operation. Although in each case the Company only sought to apply the condition reasonably, the Courts held that they claimed to be irresponsible for negligence, however gross, or misconduct, however flagrant (see M'Manus v. Lancashire and Yorkshire GoTnpany) ; and these decisions created a panic lest the Companies should inflict wilful injury and claim immunity. The contest was whether the Companies ought to be exempt from liability for such damage if caused by their culpable conduct. The section, if rightly construed, is to take away that exemption, and no more. It is provided that nothing contained in the statute shall prevent Companies from making such conditions as a Court or Judge should adjudge to be just and reasonable. If the Companies sought to apply the con- dition 'unreasonable' to justify wilful misconduct, the Judge would be best qualified to decide thereon. Contracts by Eailway Companies, applicable to all customers, must be expressed in wide terms capable of application to a countless variety of occasions. By one proviso the liability for negligence thus created by compulsion is limited to a maximum of value, unless the customer pays a premium for insuring a higher value. By another proviso the burden of proving the value is thrown on the customer ; by another the rights and liabilities created by the Carriers' Act are preserved. The Act may be defective, .perhaps, in omitting any attempt to define the culpable conduct intended in the terms ' neglect or default ; ' but it intro- duces no anomaly in the law relating to lailways before the decision in M^Manus's Case introduced what I pray leave to call semi-paralysed contracts, valid for the one party, but contin- gently void towards the Kailway Company. Any contractor with a Eailway Company concerning traffic may break his promise with impunity if the Judge who tries thinks it reasonable to allow it ; that, owing to the monopoly Eailway Companies have, they shall not possess the same power which other individuals have of entering into contracts without restraint. Then does the section enact that all the contracts of Eailway Companies relating to traffic may be declared void if the Judge, at the close of the litigation, thinks them unrea- SPECIAL CONTRACT. 219 sonable ? I submit that it does not. I cannot find any words in the section approximating in the slightest degree to express such an intention. But, after the Judgments that have been given, I am bound to assume that there are words capable of being construed in the sense contended for by the Plaintiff. It is said that all power of making contracts absolutely binding ' should be taken away, because Kailway Companies are supposed to have great capital, and to have a monopoly of transit. I submit that Kailway Companies have no monopoly. They are subject to external competition among each other ; they are also subject to internal competition by rival carriers making them carry, and taking from them a part of the profit arising fi-om such carriage. If railways are so convenient to travellers in haste (to make contracts by signing any paper put before them) that they require to be controlled, the same reason does not apply to canal navigation, where there is neither monopoly nor speed, and yet the 7th section applies to Canal Comj)anies as well as to railways ; for as no infant can bind himself except as far as the contract is for his benefit, so no person can bind himself to a Kailway or Canal Company except as far as a Judge shall find the contract just. The anomaly is not striking where the contract relates to 6d. in the pound for a dog ; but take such a contract as the Kuabon Coal Company (Nicholson\. Great Western Railway), where during ten years the Coal Company contract to pay £40,000 a year. If the Kailway Company were to sue for the £40,000, did the Legislature intend that the Coal Company should be able to raise the question whether the amount was an unreasonable price, and, if the Judge who happened to try the case thinks so, defeat the claims of the carrier ? I submit not. I suggested in M^Manus^s Case the test of what is just varies with the Judge who has to apply it : one trusts to the common law liability of caniers, another to an intuitive perception, another to the obligation of a promise, another to a knowledge of the management of railways. I submit that a Judge is incompetent to say what justice requires in respect of such questions (i.e., rates and charges as to owner's and Company's risk). Throughout the litigation on this liability of railways, the Companies, according to my observation, have acted fairly ; the customers quite the reverse. In this and 220 SPECIAL CONTRACT. other similar actions the Plaintiffs, who had passed their pro- raise to the Company, broke it without scruple, and avowed that they had wrongfully deprived the Company of the pre- mium due to them, and still succeeded in laying a risk on the Companies which they had promised to bear themselves. I am of opinion the statute does not apply to this case, there being no TTiisconduct, and that therefore the contract maintains the defence. " I submit the condition in this case was reasonable and within the statute. The condition is that a customer intending to impose the higher risk on the Company, and withholding the premium which in honesty as well as law is due, is to bear the risk. I submit that the Company had a right to stipulate for exemption from all responsibility except wilful wrong, and that such is the effect of the condition. Barons Keating, Williams, and Channell concur that the Judgment ought to be reversed, and that the condition was just and reasonable." Baron Wilde strongly dissented from the Judgment of the majority. He thought it unjust and unreasonable that because the dog turned out to be worth more than £5 by the contract, if sanctioned, the owner could recover nothing. He says — " Now it might be reasonable to compel the owner to put a value on his dog, to make him pay a percentage on that value as insurance, and to stipulate that in case of loss or injury he should recover no more than the value he had himself fixed ; but to visit him with the total loss of his property when he had practised no decep- tion and been guilty of no fault seems to me to be clearly unjust and unreasonable." The Carriers' Act was designed to meet the case of small parcels of value sent by bankers and others where the extent of the value was concealed from view. J udgment for Company. — Tried at the Court of Queen's Bench, Feb. 3, 18Q2.— From Law Journal Repoo'ta, vol. 31, page 13. 100. North Eastern Railway Company {on appeal) v. Richardson & Sisson. — Action for £50 for a greyhound which slipped its collar at Kirby Stephen, and ran down the line, and was killed by a train — Temple Sowerby to Morpeth. The dog was delivered at Temple Sowerby, but no receipt was issued. The dog, when delivered, had round its neck a collar of SPECIAL CONTRACT. 221 leather with a strap, and was clothed with a sheet. At Kirby Stephen there was a change of train, and the dog was taken from the van and tied up by the strap to a spout at the station, waiting the arrival of the forwarding train. The dog slipped its collar, and was killed. The case was first tried before the County Court Judge of Westmoreland, who gave a verdict for Plaintiff for £50. The Company appealed, and on the appeal case Justice Willes said — " The Company in the present case, with reference to the dog in question, were in the position of ordinary bailees, not being common carriers of dogs, and only liable for the loss in the event of negligence on their part, and would not be liable if its loss was by reason of negligence of the person who delivered the dog to the Company. We are clearly of opinion there was contributory negligence of the sender. We think the case of StuaH v. Cratuley very applicable. In that case the dog was tied by a piece of string to a watch-box, where it slipped its noose, and got lost. The earner was held liable, because he ought to have known better than to fasten a dog of that kind with only a string such as that which was round his neck. Here the dog was delivered with a collar and a strap, which clearly indicated that the proper mode of securing the animal was by these. We are of opinion the Judgment of the County Court cannot be sustained. The Judgment must there- fore be reversed ; but as the Company gave no ticket when they received the dog, and therefore are not without blame, we think it should be reversed without costs." Judgment for Company. — Tried in CouH of Goramon Pleas, June 23 ctnd 24, 1871. "lOI. Ashenden v. London BHghton and South Coast Railway Company. — Action for £10 for an Italian greyhound, sent from Norwood Junction to Rochester. At Beckenham Junction, in transferring the dog from one train to another, it sHpped its collar, ran down the line, and was lost. Sender, on delivery of the dog, signed the usual ticket, but he did not declare the value of the dog. One of the conditions of the ' ticket specified — " The Company will in no case be liable for injury to any horse or other animal, or dog, of whatever value, wliere such injury arises wholly or ]>artially from fear or 222 SPECIAL CONTRACT. restiveness." The case was first tried at the Brighton County Court ; and the Company contended that, under the conditions signed on the ticket and the Eailway and Canal Act, sec. 7, they were only liable for £5. The Judge found the dog was lost without any neglect or default on the part of the Com- pany, but that the conditions on the ticket were unjust and unreasonable, and gave a verdict for £10 10s. The Company appealed, when Justice Hawkins said that " in Peek v. North Staffordshire, tried in the House of Lords, it was expressly held that a condition exempting the Company from responsi- bility for injury, however caused, without limitation or excep- tion, was neither just nor reasonable, for such a condition would, if valid, exempt them from liability for loss or damage happening through the grossest and most culpable negligence or wilful misconduct. Had the Company, by their con- ditions, stipulated, as they easily might have done in a very few words, simply that they would not be responsible for loss resulting from mere accident without neglect or default, such restiuction of their common law liability would have been both just and reasoniible, and, if embodied in a^ signed contract, would have protected them against liability^ for the loss which has here occurred. We are bound to con- strue the contract as we would have done at the moment it wasi made, without regard to subsequent events, and, so construing^ it, it is clear that it was framed to cover every loss, even though! occasioned by the wilful misconduct of the Company or theirj servants. The case of Lewis v. Great Western Railway Com-i pany does not in the least degree militate against this view.] There it was held that a contract on the part of the Company] to carry cheese at a lower rate than the ordinary rate of carriage,! on condition that the Company should not be liable for loss] arising from any cause except wilful misconduct of theirj servants, was a just and reasonable contract, for a consideration in the shape of a lower tariff was offered to the sender of the goods as an inducement to him to limit his common law liability, and ho had the option to send his goods at the ordinary rate of carriage, holding the Company to their ordinary liability as carriers, or at a lower rate of carriage, taking upon himself the risk of iiijuiy happening to his goods in the course of their SPECIAL CONTRACT. 223 transit through any neglect or default of the Company or their servants not amounting to wilful misconduct." Chief Baron Kelly concurred. Judgment against Company. — Tried in Court of Exchequer, March 2 and 9, 1880. — From Law Times Reports, vol. 42, page 586. 224 STOPPAGE IN TRANSITU. In case of Bankkuptcy, AccErxANCE of a Bill for Value OF THE Goods does not take away Sendee's Eight TO Stop the Goods, neither does Part Payment on Account of Goods. Case 1 Case No. No. Hodgson V. Loy (1797) 102 1 Feise y. Wray (1602) 103 DIGEST. In Hodgson v. Loi/ (i7&7) it was held that a sender's right of stopping goods in transitu is not taken away by the consignee's having partly paid for the goods ; the sender has a right to retake them (in case of bankruptcy) unless the whole price has been paid. (See also Ea; parte Rosevear Clay Comjmny^ re Cock.) In Feise v. Wray (1802) it was held that though the trader had, before his bankruptcy, accepted bills drawn on hiin by his correspondent for the amount of the goods, such acceptances, provable under his commission, amounted at most to part payment for the goods, which does not take away the sender's right to stop in transit LL 102. Hodgson v. Loy. — Action in respect to stoppage in transitu. The goods consisted of firkins of butter, Cumberland to London. Ward became a bankrupt, and his assignee claimed the butter. Ward had made a payment on account of the butter, but iiad not paid its full price. It was held that a sender's right of stopping goods in transitu is not taken away by the consignee's liaving partly paid for the goods. Lord Chief Justice Kenyon said — " We are clearly of opinion that the circumstance of the consignee having partly paid for the goods does not defeat the sender's right to stop them in tran- situ, the consignee liaving become a bankrupt, and that the STOPPAGE IN TRANSITU. 225 sender has a right to retake them unless the whole price has been paid. — Tried in CouH of King's Bench, November 23, 1797. — From Durnford and Easfs Term Reports, vol. 7, page 440. 103i Feise V. Wray. — Action in respect of stoppage in transitu of beeswax sent, Hamburgh to London. A trader in London gives an order to his correspondent abroad to ship him certain goods, which the latter procures upon his own credit, without naming the trader in London, and ships to him at the original price, charging only his commission. Held — That the correspondent abroad is so far a vendor, as between him and the trader, that on the bankruptcy of the latter he may stop the goods in transitu by procm-ing the bill of lading from the bankrupt's brother ; and thus, though the trader had before his bankruptcy accepted bills drawn on him by his correspondent for the amount of the goods, such acceptances, provable under his commission, amounted at most to part payment for the goods, which does not take away the vendor's right to stop in transitu. — Tidied in Court of King's Bench, November 17, 1802. — F^^om Easfs Reports, vol. 3, page 93. Ladouch v. Towle (1800) Sweet V. Pym (1800) Scott V. M. G. W. (1852) M. G. W. V. Benson (1857) DIGEST. In Ladouch v. Towle (isoo) a person (A.) claimed certain goods that had been delivered to a carrier by a third person (B.). The carrier, on receiving an in- demnity from A., withhekl delivery of the goods to B., from whom he received the goods. Justice Goiild would not allow the carrier to set up any question of l)roperty out of the Plaintiff B., and held that he (carrier), having received tlie goods from B., was [)re- 15 GENERAL. Case Case No. No. 0) ... ... 236 The "Tigress'' (1863) ... . .. 107 ... 104 Pontifex v. Midland (1866) .. 108 I) ... ... 105 Story on Bailments (sec. 581). S57) ... 106 5^6 Vic, ccup. 39. 22G STOPPAGE IN TRANSITU. eluded from questioning his title or showing a property ill any other person. Ill Sweet V. Pym (isoo) a, " fuller " (Pym) in Exeter had received cloth from Gard, London, to be " fulled." Pym shipped the cloth back to London, and, hearing Gard had become a bankrupt, Pym overtook the ship at Deal, and got the captain to sign a bill of lading, consigning the cloth to him (Pym) in London. Pym thus obtained possession of the cloth, and sold it for a general balance due him by Gard. Sweet, the assignee of Gard, now sued for the value of the cloth. Lord Chief Justice Kenyon held that Sweet could recover the value of the cloth. Judgment accordingly. In Scott V. Midland Great Western (i852) the assignee of the bankrupt got possession of some goods, and the bankrupt's brothers claimed the goods. The Company detained the goods until either the one party or the other proved their right to legal possession, and the Court held the Company were justified in doing this. In Midland Great Western v. Benson (iss?) the sender (Benson) stopped 13 firkins butter, although the con- signee had paid him for the butter; but there was an old dispute between the two. The Company gave the butter up to sender, and then afterwards had to pay consignee the value, £40. It was held the Company could recover the £40 from sender, he having unlaw- fully stopped the butter, which legally belonged to the consignee. In Tlie ^'■Tigress'' (i863) the consignee, although insol- vent, claimed the cargo of corn, and consequently, although senders produced one of the bills of lading (being in triplicate) the captain refused to give them the corn. Held — Refusal by the master to deliver under a claim to stop in transitu is a breach of duty which gives the Court of Admiralty jurisdiction under section 6 of Merchant Shipping Act, 1 854. By the right to stop in transitu is intended not only a right to counter- mand the delivery to the vendee (consignee), but also to demand a re-delivery to the vendor (sender). STOPPAGE m TRANSITU. 227- In Pontifex v. Midland (18G6) it was held that after notice of stoppage in transitu had been given to the carrier, delivery to the consignees (by carrier) was not part of the (carrier's) contract ; that in such case the action against the carrier was for conversion of the goods, not breach of contract of carriage. Storey on Bailments, sec, 681. — Where goods are shipped on a credit by seller to consignee, and the consignee or buyer becomes insolvent or has failed before their arrival, the law, in order to prevent the loss which would otherwise happen to the seller or sender, allows him in many cases to countermand the delivery, and, at or before the arrival of the goods at the place of destination, to cause them to be re-delivered to himself or some other person appointed to act for him. This is usually called a stoppage in transitu. In such a case the delivery to the carrier is supposed to vest the title to the property in the buyer, subject only to his right of devestment or stoppage in transitu. The right, how- ever (as will be at once perceived), is not an unlimited right. It exists only in cases where all the following circumstances concur : — Where the goods are sold on credit, where the consignee is insolvent, where the goods are still in transit and have not been delivered to the consignee, and where the buyer has not yet parted with his ownership to any bona fide purchaser without notice under him. Each of these requisites is important enough to deserve a separate discussion in its proper place, and especially the question under what circumstances the transit is or is not at an end, which is full of nice distinctions and curious learning. Stoppage in transitu. — The Act of 5 & G Vic, cap. 39, of June 30, 1842, bears npun the true ownership of goods, and is entitled " An Act to amend the Law relating to Advances bond fide made to Agents entrusted with Goods." 104. Sweet V. PyTYh. — Action in respect to stoppage in transitu. A person named Grard, of London, sent cloth to Exeter to be "fulled "by Pym, the Defendant. Grard owed Pym a general balance more than the value of the cloth. Gard became a bankrupt, at which time the cloth had been shipped at Exeter to him, and was in transit to London, but no bill of lading had been signed. Pym overtook the vessel at Deal, and got the captain to sign a bill of lading consigning the goods to him, Pym; and on the arrival of the ship in London, Pym obtained possession of the cloth. Grard's assignee now sued for the value of the cloth. Lord Chief Justice Kenyon said — " The right of lien has never been carried further than while the goods continue in the possession of the party claiming it. Here the goods were shipped by the order and on account of the bankrupt, and he 228 STOPPAGE IN TRANSITU. was to pay the expense of the carriage of them to London. The custody, therefore, was changed by the delivery to the captain. In the case of Kinlock v. Craig (3 Term Reports, 119), where I had the misfortmie to differ with my brethren, it was strongly insisted that the right of lien extended beyond the time of actual possession, but the contrary was ruled by this Court, and afterwards in the House of Lords, though there the factor had accepted bills on the faith of the consignments, and had paid part of the freight after the goods arrived," — Tried in Court of King's Bench, Nov. 10, 1800. — From East's Termv Reports, vol. 1, page 4. 105. Scott V. Midland Great Western Railway. — Action for the possession of goods, where two persons claimed to be the owners of certain goods in the Company's possession as carriers. Plaintiff, Scott, the assignee of a bankrupt at Gralway, went to Galway and took possession of eighteen packages of goods which were taken to the Gralway Station on Sunday, 3rd August, 1851, consigned to Dublin. The bankrupt, Mortimer Kealy, traded in the name of Mortimer Kealy & Company, Kealy Brothers & Company, and Kealy Brothers. Before the goods left. Galway, Thomas and Michael Kealy, brothers of Mortimer, claimed the goods from the station-master. The station-master then required Scott to give him a guarantee if he forwarded the goods to Dublin, agreeing that the goods should be detained in Dublin until Scott could prove that he was entitled to them as assignee of the bankrupt. It was held, in an action of trover by Scott against the Company to recover the goods, that the second agreement was binding on the Plaintiff, it being open for the parties before the breach of the first, without any new consideration, to have substituted another, and that the Plaintiff was, there- fore, bound to prove that he had, before bringing the action, satisfied the Company as to his title to the goods. It would seem that Scott claimed the goods on the ground that he delivered them to the Company, and that by that delivery made a contract with the Company, and that the guarantee afterwards given did not constitute a new contract by which the goods might be withheld from him. The Judge, however, STOPPAGE IN TRANSITU. 229 ruled that the guarantee constituted a new contract, and the Company were right in detaining the goods until the true ownership of same should have been proved. Judgment for Company. — Tried in the Court of Gomvion Pleas, April 15 and 20, 1852. — From Irish Common Laiu Reports, vol. 3, page 59. 106. Midland Great Western Railway Company v. Benson. — Action in respect to stoppage in transitu. The De- fendant (Benson) forwarded 13 firkins of butter from Carrick- mahon by the Company's canal to Dublin, consigned to C. Kelly, of Liverpool. He obtained the Company's receipt, which he for- warded to Kelly, and obtained from Kelly, upon the faith of the receipt, a sum of £40. It appeared Benson had previously sent Kelly butter to sell for him in Liverpool, but he was dis- satisfied with the price the previous lot of butter realised, and he therefore desired to appropriate the £40 in satisfaction thereof. He accordingly came to Dublin and overtook the butter, and by representing to the Company's servants that the butter was his absolute property, obtained possession of it. Kelly, not receiving the butter, threatened the Company with legal proceedings, and the Company therefore paid him £40 for the butter, and now, by an action against Benson, sought to recover from him the sum of £40 in question. Chief Justice Monahan said — " "We are all satisfied that the case of Brown v. Hodson was well decided, and that the present case cannot be distinguished in principle from that. With respect to the alleged neglect on the part of the Company, if the Defendant had not transmitted the receipt to Kelly and got £40, he would have been clearly entitled to get back the goods. Now, it appears that when he came for the goods to Dublin he represented to the Company that they were his under circumstances which, if true, would have entitled him to get them back ; consequently there was no neglect on the part of the Company in thus parting with the possession of the goods. " Therefore the law will imply that the Defendant promised to repay the Company the money which they were bound to pay to Kelly, who was in a position to maintain against them an action for the £40 ; and so, upon the authority of Brown v. "230 STOPPAGE IN TRANSITU. Hodsov, we are of opinion that this verdict must stand. Judgment for Company. — Tried in the Court of Common Pleas (Ireland), June 3, 1857. — From Irish Common Law Reports, vol. 7, page 52. 107i T^^^ ^^ Tigress." — Action in respect to stojopage in transitu. A cargo of corn was sent from New York for one Bushe, of Bristol, at the request of Lucy & Co., Liverpool. Before delivery Bushe became insolvent, and Lucy & Co. pre- sented one of the bills of lading and demanded the corn, which the captain of the ship " Tigress " refused to give up, even on an indemnity, because Bushe claimed it upon the one bill of lading he held. Held — Eefusal by the master of a ship to deliver goods under a claim to stop in transitu is a breach of duty which gives the Court of Admiralty jurisdiction under section 6 of the Merchant Shipping Act, 1 854. By the right to stop in transitu is intended not only a right to countermand the delivery to the vendee, but also to demand a re-delivery to the vendor. Though the indorsement of a bill of lading passes the property in the goods, yet the indorsement to the consignee of one bill of a triplicate set is not such a negotiation as to prevent the right of stoppage. If bills of lading are presented to the master by two dififerent holders, and he delivers to one, no right of action against him accrues thereby to the disappointed holder, as it is not for the master to inquire who has the best right. (This may be important where the sender of goods hands a carrier's receipt to a person and raises money upon it, and then sells the goods to a second person, giving a written order for delivery.) — Tried in Court of Admiralty, January 27, February 27, 1863. — From Law Journal Reports, vol. 32, page 97. 108. Pontifex v. Midland Railway. — Action in respect to stoppage in transitu. An action against a carrier for neglect of duty in delivering goods to the consignee after notice of stoppage in transitu is founded on tort. Justice Lopes regarded the action as one of contract. Chief Baron Kelly said — "The case seems to me to be without STOPPAGE m TRANSITU. '231. difficulty. A contract was made between the Plaintiff and the Defendants that the latter should carry goods to Birmingham, -and deliver them there. After the contract was made, and before delivery of the goods to the consignees, notice of stop- page in transitu was given to the can-iers, by which they were required not to deliver the goods to the consignees, but to hold them for the benefit of the sender. So soon as this notice reached the Company the contract came to an end. Delivery to the consignees afterwards was not part of the contract. The Plaintiff had a right to re-demand his goods from the Company before delivery ; and, under the old procedure, if the Company had neglected to re-deliver them, the Plaintiff's remedy would have been in trover, i.e., in toH. The words of the Act of Parliament referred to (the County Com't Act, 1867, sec. 5) cannot alter the nature of the remedy. Under these circum- stances, Justice Lopes' order will be rescinded." — Tried in the Court of Exchequer, December 20, 1866. — From Weekly Reporter, vol. 25, page 215. ClKCUMSTANCES UNDER WHICH THE TrANSITUS IS STILL IN CoURSE. Case No. Northey \. Field (1796) 109 Richardson v.Goss (1802) 110 Patten \. Thompson (1816) ... Ill Tucker v. Humphrey (1828) ... 112 -Edwards v. Brewer (1837) 113 James V. Griffin (1837) 114 Whitehead v. Anderson (1842) ... 115 Case Na BoUon y. L. 4 Y. (1S66) 116 Berndtson v. Strong (1868) ... 117 Coventry \. Gladstone (Um) ... 118 Ex parte Barrow, re Worsdell (1877) 119 Be M'Laren, ex parte Cooper (1879) 120 Ex parte Rosevear C. Co., re Cock (1879) 121 DIGEST. In Northey v. Field (1796) wine arrived by ship for Leyland & Cragg, who becoming bankrupt, the wine was removed to the King's warehouse for the excise duty. The day before the ex])iration of the three months' grace to pay the duty senders (Field) claimed the wine. The bankrupt's assignee (Northey) sued for the value. Lord Kcnyon held that senders' notice to the Excise was sufficient to establish a stoppage in transitu. 232 STorrAGE ln ruANsrru. In li/cJiardson Y. (r^.s-.v (1802) three hogsheads of hams eaiue from Newcastle to London, and were lodged in Defendant's Avarehouse, being consigned to Wilson. Wilson became bankrupt, and wrote sender (Richard- son) he would not take the hams, and thus rescinded the purchase. Goss had no advice of this, and, having an old balance due from Wilson, detained the hams. The Coiu't held the contract of purchase had been rescinded, and Goss could not hold the hams from Richardson (sender), although he might have done so against Wilson by the custom of a warehouseman's lien for an old balance. In Fatten v. Thomj^so^i (isic) a cargo of wheat was sent from Westport to Liverpool, consigned to the factor (agent) of a Dublin firm. The factor became bankrupt, and his assignee claimed the cargo. Lord Ellenborough held that the unpaid sender may stop in transitu before the goods came to the hands of the consignee's factor, although the factor has the bill of lading, indorsed " to order," in his hands, and is under acceptance to the consignee on a general account. In Tucker v. Humphrey (i828) tw^enty-five sacks flour were brought by ship, Stockton to London. The ship came alongside the wharf on 12th April, and was un- loaded between 22nd and 26th April ; on 10th April consignee became a bankrupt ; on April 17 sender gave notice of stoppage in trandtu ; on April 19 the messenger in bankruptcy claimed the flour. With former consignments consignee sometimes took de- livery from the ship, and sometimes from the wharf- inger's (Humphrey's) warehouse. The Court held that, no act of ownership having been exercised over the flour by consignee, the transitus was not at an end when sender gave notice on April 17. Judgment for wharfinger. In Edvuirds v. Brewer (i837) thirty-seven tons of iron ])ipes arrived in Thames. The consignee was away, and his clerk wrote— "You had better land the goods at Griffin's Wharf on my master's account." The STOPPAGE IN TRANSITU. 233 pipes Avere landed, not in consignee's name, but in blank. Baron Parke, in respect to the clerk's letter, said — " It is the same as if the clerk had not acted at all." Sender's right of stoppage thus held good. In James v. Griffin (1837) sheet lead arrived in the Thames. The captain pressed consignee (Emerson) to have the lead immediately. Consignee's son had the lead landed on the wharf, but Emerson told his son not to meddle with the lead, that (being insolvent) he did not intend to take it, and that the sender ought to have it. After the lead was on the wharf sender stopped it there in transitu. Held — That Emerson's assignee could not recover the lead, that Emerson had not taken possession of the lead as owner^ and there- fore that the transitus was not determined. In Whitehead v. Anderson (i842) a cargo of timber arrived at Fleetwood from Quebec. Consignee's assignee met the ship on arrival, and told the captain he had come to take possession of the cargo. He went into the cabin, into which the ends of the timber projected, and saw and touched the timber. The ca2)tain made no reply, but subsequently, at the same interview, told him he would deliver him the cargo w^hen he was satisfied about the freight. Subse- quently the sender's agent served a notice of stoppage in transitu upon the mate, and afterwards received the cargo. Held by the Court — That there was no actual j)ossession taken of the timber by the assignee, and that, as there was no contract by the captain to hold the goods as their agent, the circumstances did not amount to a constnictive possession. In Bolton v. Lancashire and Yorkshire (1866) sender sold consignee eleven skips of twist, to be delivered at different dates. Consignee received the first three skips and paid for them, but, the quality being bad, refused the other eight. Consignee's carter took four of these skips from the station in mistake, but at once returned them. Consignee then re-consigned the eight skips back from Brierfield to Salford. Sender 234 STOPPAGE IN TRANSITU. refused them, and sent them back again to Brierfield. Consignee then became a bankrupt, and sender then gave Company notice of stoi)page in transitu^ and the Company gave the skips up to sender. The con- signee's assignee then sued the Company for value of the skips. Chief flustiee Erie held that it was clear consignee did not intend to take the goods, and that the goods had never ceased to be in transitu. Judgment for Company. In Coventry v. Gladstone (1868) linseed, shipped Smyrna to London, was mortgaged before arrival. Before the ship arrived consignee became bankrupt, and the mortgagees, on the arrival of the ship, obtained a delivery order for the linseed, and handed it to an officer on board the ship, who promised to deliver to them the linseed when he got it clear. The Court held that this did not amount to a constructive delivery, and sender's right of stoppage in transitu remained. In Berndison v. Strong (1868) a quantity of timber was shipped in Sweden for London, and the consignee chartered the ship. From bad weather the ship put into Copenhagen, where sender (Berndtson) served the captain with a notice of stoppage in transitu. The vessel went on to London, and consignee having gone into liquidation, his assignee (Strong) acquired the timber and sold it. The sender now sued for the value. Lord Cairns, in the Court of Chancery, held that the sender, by virtue of his right of stoppage, z/i transitu, was entitled to tlie proceeds of the sale of the cargo of timber. In Ex parte Ba^roiv, re Wordsell (1877) leather was shipped to Falmouth, and unloaded from steamer into carrier's warehouse. Consignee was then an abscond- ing bankrupt. The course of business was to hold consignee's goods in the warehouse subject to his order. The bankrupt's receiver did not claim the goods before sender gave notice of stoppage in transitu. Held —That the transitus was not at nn end when the goods were STOPPAGE IN TRANSITU. 235 stopped, nothing having taken place to constitute the carriers at Falmouth bailees for the consignee. In Be J^PLaren^ ex ])arte Cooper (i879) 114 tons of castings were sent by ship from Scotland to London, consigned to M'Laren. Thirty tons had been unloaded when M'Laren, who was in Scotland, telegraphed to stop unloading any more. M'Laren went into liqui- dation. In the Court of Appeal, Lord Justice Brett held — " Part delivery of a cargo, or of the bulk of the goods, is not iwimci facie delivery of the whole," and that the transitus of the remainder of the castings had not ended ; that the fact that M'Laren was a partner in the Scotch firm (sender's) made no difference. In Ex parte Rosevear China Clay Company^ re Cock (1879) a cargo of china clay had been shipped on board a vessel. The payment was by acceptance, and the purchaser had chartered the ship. The purchaser became insolvent. Sender gave the master notice of stoppage in transitu. Held — That the clay was in the possession of the master of the ship only as carrier, and not as agent of the purchaser, and that the transitus was therefore not at an end. 109. Northey v. Field. — Action in respect to stoppage in transitu. Wines, value ^109, were purchased by Ley land & Cragg from Field. The ship arrived with the wine, and the excise duty not being paid, owing to consignees becoming bankrupt, the wine was removed to the King's warehouse. The practice was to keep it in this warehouse for three months ; if not redeemed and excise duty then paid, the wine was sold for the duty. In this case the wine was sold, and reahsed £109. The day before the three months expired the senders aj)phed for the wine, but did not succeed in obtaining it. The assignee of Leyland & Cragg now claimed the proceeds of the sale, less duty. T^ord Kenyon said — " I am of opinion the Plaintiff is not entitled to recover. The Courts had, of late years, leaned much in favour of the power of the sender to stop his goods in ■transitu; it was a leaning to the furtherance of justice. Lord 236 STOrPAGE IX TRANSITU. Hardwick had been of opinion that, in order to stop goods in transitu, there must be an actual possession of them obtained by the sender before they come to the hands of the consignee ; but that rule had since been relaxed, and it was now held that an actual jjossession was not necessary — that a claim was sufl&- cient — and to that rule he subscribed. In the present case, the bankrupt had no title to the actual possession till the duties were \)a,[d ; until then they were quasi in custodia legis. Before the sale the agent for the senders claimed and endeavoured to get possession, and that was a sufficient stopping in transitu, in my opinion, to secure the rights of the senders." — Tried at Nisi Prius, December 12, 1796. — From Espinasse's Reports, vol. 2, page 613. 110. Richardson y. Goss. — Action for detention of three hogsheads of hams and bacon by a wharfinger at London for a general balance due by consignee. The hogsheads were shipped by " Formosa " from Newcastle, consigned to Wilson. Wilsoa gave the captain of the ship an order to deliver to Defendant's (Gross's) wharf. Wilson, having become embarrassed in his cir- cumstances, wrote sender to tell him so, and agreeing not to take the three hogsheads in question, but he gave the wharfinger (Gross) no notice of this. Sender (Eichardson) in a few days came to London, and demanded the three hogsheads from Gross, and Gross refused to give them up, because Wilson owed him a general balance. On the appeal case, Justice Heath said — ^" It was perfectly competent to the vendor and vendee to rescind the contract (of purchase), and I think that the contract was rescinded by relation on 1st June (date of Wilson's letter to sender). This case differs from a case of bankruptcy, for there, if any act of bankruptcy intervene between the offer to rescind and the assent, the assent comes too late to prevent the act of bank- ruptcy (Smith V. Field, 5 T. E., 402). Here, therefore, I think that the relation must take place agreeably to the reasoning made use of in AtJcin v. Barivick, which, though it has been thought by Lord Mansfield, Lord Kenyon, and other Judges not to have been applicable to that case, is applicable to this. Here the wharfinger had no right to retain the goods against STOPPAGE IN TRANSITU. 237 Richardson, who was no creditor in respect of anything but what had been laid out upon them ; though if Wilson had demanded the goods, the whai-finger would have had a right, founded upon custom, to retain for his general balance. In this case no fraud appears, nor any suspicion of fraud, but a mere negligence on the part of Wilson, who certainly ought to have given notice to the Defendant (Gross) of his having put an end to the contract. The title of Eichardson was the preferable title ; under these circumstances, therefore, the wharfinger has no right to set up any lien against him for the general balance due from Wilson." Semble — That the goods were no longer in transitu when arrived at the wharf of Gross, where the goods of Wilson were usually landed and kept till he sent for them. Judgment against wharfinger. — Tried at Guildhall Sittings, May 12, 1802. — From Bosanquet and Puller's RepoHs, vol. 3, page 119. m. Patten & Co. v. Thompson. — Action in respect to stoppage in transitu. The goods consisted of 108 tons wheat (a cargo), kiln-dried, screened, and free on board at Westport, county Mayo, at 34s. 6d. per barrel of 20 stone. The wheat was consigned to Liverpool. It was consigned there to a factor of a Dublin house ; this factor became bankrupt, and his assignee claimed the cargo. It was held by Lord Ellenborough that the unpaid sender may stop the goods in transitu before they came to the hands of the consignee's factor, although the factor has the bill of lading indorsed to order in his hands, and is under acceptance to the consignee on a general account. Wherefore, in such case where the consignee became bankrupt and the factor also became bankrupt, and the messenger of the latter's assignee, upon the arrival of the ship, went on board and seized the cargo, the agent or the sender having previously given notice to the captain to deliver the cargo to him, and the captain having agreed thereto : Held — That trover would lie by the sender against the assignee of the bankrupt factor. — Tried in Court of King's Bench, Nov. 12, 1816. — From Maule and Selwyn's Reports, vol. 5, page 350. 112. Tucker v. Humphrey. — Action in respect to stoppage in transitu of twenty-five sacks flour, value £52 10s., Stockton 238 STOPPAGE IN TRANSITU. to London, by sea. Wilkinson & Co., Stockton, purchased the flour as commission agents for Grilbert, to whom it was con- signed and invoice sent, Wilkinson & Co.'s commission being Is. per sack. The flour reached London 12th April, but re- mained in the ship until between 22nd and 26th April. On 10th April Gilbert became a bankrupt, and his assignees claimed the flour. On the 17th April Wilkinson, finding Gilbert had become a bankrupt, sold the flour to Cramp, who claimed it from the wharfinger, Humphrey (Defendant). The Judge said — " This case has been correctly argued upon the ground whether the trans Itus was continuing, or whether it was at an end owing to the flour not having been unloaded from the ship and put into the warehouse." (Plaintiff had con- tended that the point of destination was the warehouse, but it was proved that in former consignments consignee sometimes took delivery from the ship and sometimes from the warehouse. If he had not sold the flour before it was time for the ship to make her next voyage, then the flour was unloaded into the warehouse and delivered therefrom.) The Judge said the flour in question had arrived at the wharf on the 12th April, but was nob landed until the 22nd April. No act of ownership was exercised over it by Gilbert ; no invoice, no bill of lading, ever produced by him or any agent employed on his behalf, till the messenger under the Bank- ruptcy Commission claimed it on the 19th April, the shipper having actually stopped it two days before ; so that the very first act done upon the flour after the ship's arrival at the wharf was done by the sender before the transit to the hand or possession of the consignee was complete. Judgment for wharfinger.^TriecZ in Comi, of CoTYimon Pleas, Feb. 12, 1828. — From Bingham's Reports, vol. 4, page 516. 113. Edwards y. Breiver. — Action in respect to stoppage in transitu. The goods consisted of thirty-seven tons iron pipes, carried from Newport, South Wales, to London. Con- signee l)ccame a bankrupt, and his assignee claimed the goods. Baron Parke said — "The assignees have no title to these goods until they have got into the hands or possession of the consignee. They were landed at Grifiin's Wharf, on the STOPPAGE IN TRANSITU. 23&- Thames, where he had not usually had his goods landed. Had he then taken possession of them ? The consignee is away, and his clerk writes — 'You had better land the goods at Grriffin's Wharf on my master's account.' It is the same as if the clerk had not acted at all. Then how does the captain act ? He lands them, not in the consignees name at all, but in blank, with freight and charges set against them. Then the other point as to the bill. It is settled by the case of Feise v. Wray that by an acceptance of bills the sender's right to stop in transitu is not taken away. The acceptance would not diminish his right to retain possession until the whole price was paid. Whether the effect of the stoppage in transitu be to rescind the contract or merely to re-vest a lien does not seem to be quite settled," (GlaT/ v. Harrison, 7 T. E., 440). — Tried in Court of Exchequer, Easter Term, 18S7.— From Meeson and Welsby's Reports, vol. 2, page 375. •j14. James v. Oriffi^n. — Action, stoppage in transitu. Sheet lead was consigned by Stagg to Emerson, deliverable in the river Thames. On the arrival of the vessel in the river, the captain pressed Emerson to take the lead immediately. Emerson, in consequence, sent his son with directions to land the lead at a wharf where he was accustomed to have goods landed for him and kept until he carted them away to his customers in his own carts. But Emerson (being then insolvent) at the same time told his son he would not meddle with the lead, that he did not intend to take it, and that the sender ought to have it. The goods were, by the son's directions, landed at the wharf, and there stopped in transitu by the sender. Emerson afterwards became bankrupt, and his assignees now sued the wharfinger for the value of the lead. Held — That the declarations made by Emerson and his son were admissible in evidence, although they were not communicated to the sender or to the wharfinger, and that they showed that Emerson liad not taken possession of the lead as owner, and therefore tliat the transitus was not determined. Judgment for wliarfinger. — Tried in Court of Common Pleas, Trinity Term, 18^1. —From Meeson and Welsby's Reports, vol. 2, page 623. 240 STOPPAGE m TRANSITU. 115. Whitehead \ . Anderson. — Action in respect to stop- page in. transitu. The goods consisted of a cargo of timber, shipped from Quebec to Fleetwood. A notice of stoppage was given to the shipowner at Montrose while the timber was on the voyage, whereupon he sent a letter to await the arrival of the captain at Fleetwood, directing him to deliver the cargo to the agents of the sender. This was held not to be a sufficient notice of stoppage in transitu. The vessel arrived in port on the 8th August, on which day, before the captain had received his owner's letter, the agent of the assignee of the consignee (who had become bankrupt) went on board, and told the captain he had come to take possession of the cargo. He went into the cabin, into which the ends of the timber projected, and saw and touched the timber. When the agent first stated that he came to take possession the captain made no reply, but subsequently, at the same interview, told him that he would deliver him the cargo when he was satisfied about the freight. They then went on shore together. Shortly afterwards the agent of the sender came on board and served a notice of stoppage in transitu upon the mate, who had charge of the cargo, and, a few days afterwards, received possession of the cargo from the captain. Held — That under these circumstances there was no actual possession taken of the timber by the assignees, and that, as there was no contract by the captain to hold the goods as their agent, the circumstances did not amount to a constructive pos- session of the goods by them. A notice of stoppage lyi transitu, to be effectual, must be given either to the person who has the immediate custody of the goods, or to the principal whose servant has the custody at such a time and under such circumstances as that he may, by the exercise of reasonable diligence, communicate it to his servant in time to prevent the delivery to the consignee. — Tried in CouH of Exchequer, January 31, l84:2.-^From Meeson and Welsby's Reports, vol. 9, page 518. 116. Bolton (Assignee) v. Lancashire and Yorkshire Railway Company. — Action for €301 12s. Id., value of eight skips of 32 cob twist at 2s. 9d. per lb. The claim STOPPAGE IN TRANSITU. 241 was made upon the Company by the assignee of the consignee, who had become a bankrupt. The sender (Wolstencroft) sold consignee eleven skips of the twist, to be delivered in several lots. Three skips were sent from Salford Station (where the eleven were lying) consigned to Parsons, Brierfield Station. Parsons accepted the three V skips, and paid sender £95 for them. The three skips were sent on the 22nd July ; again, on 4th August, four skips more were sent ; and again, on the 1st September, the last four skips were sent. Sender on the 19th July had sent consignee an invoice for the eleven skips. After receiving the three skips Parsons found the twist so bad that he returned the invoice, and refused, by letter of August 4th, to take the remainder, eight skips. Sender insisted upon the twist being accepted, and sent a new invoice for the eight skips. On the 12th September Parsons' carter, in mistake, took four skips from the station, but his master at once returned them. On the same day Parsons consigned the eight skips to sender, and the Company carried them to Salford. Sender (Wolstencroft) refused to receive thf» skips, and they were sent back again to Parsons at Brierfield. Parsons still refusing the skips, the Comi;)any sent them back again to Salford on the 7th September. On the 30th September Wolstencroft served a notice under the Bankruptcy Act, requir- ing payment for the eight skips. On the 3rd October a trader- debtor summons was served on Parsons, who on the 12th October resisted in the Bankruptcy Court the demand ; but an order was made that Parsons should enter into a bond for pay- ment of the sums recovered and costs, though Parsons filed an afl&davit that he had a good defence on the merits. On 19th October Parsons was, on his own petition, adjudicated a bankrupt. On the 4th October, the day after the trader-debtor summons was served, Wolstencroft ordered the Company to retain the skips to his order; and again, on the 19th October, the day Parsons petitioned in bankruptcy, the notice was repeated by Wolstencroft to the Company. On the 21st October the officer of the Court of Bankruptcy claimed the skips from the Company as part of the assets of Parsons. On the same day Wolstencroft demands the skips from the Company, and on the 29th October the Company deliver the skips to 16 242 STOPPAGE IN TRANSITU. Wolstencroft. The ease was first tried at the Liverpool Spring Assizes, before Justice Shee, when a verdict was found against the Company, subject to appeal. The case submitted for the opinion of the Court of Common Pleas was whether the Plaintiff was entitled to recover, and then the verdict was to stand ; if not, then the verdict to be entered for the Company. Chief Justice Erie, on the appeal, said — " I am of opinion our Judgment should be for the Company. The point to be decided is, if the vendor (sender) had a right to stop the goods in transitu. The eight skips had arrived at the Brierfield Station, and I think they had not ceased to be in transitu by being at the station. Being refused by Parsons and by Wolstencroft, I think they never ceased to be in transitu. It appears, from the case of James v. Griffi,n (2 M. & W., 623), that the intention of parties is material ; and so, in Whitehead v. Anderson (9 M. & W., 529), Baron Parke says^' The question is quo animo the act is done. My notion has always been that the question is whether the consignee has taken possession, not whether the captain has intended to deliver it.' Parsons refused to take the goods, and the goods delivered from Brier- field Station to his mill were delivered contrary to his instruc- tions by his carter, and it was the same as if a wrongdoer had taken them, and then they had been brought back. It is clear Parsons did not intend to take them, and if they were warehoused, I think they were warehoused for the real owner. A carrier may be a warehouseman of goods arrived at their destination, but to constitute him such there must be a change from the capacity of carrier to that of warehouseman, and that cannot take place unless the parties intend it. It is clear that Parsons did not constitute the Company warehousemen, and then the vendor (sender) lays his hands on them, and that is a sufficient defence to this action." Justice Willes said^ — "The person who received the goods from the seller (sender) was the person who was to deliver them to the buyer (consignee), and the question is if the agency for the seller (sender) had ever ceased. I think sender's action must be considered to mean, ' I insist on the buyer taking them, and if he will not you must hold them for me.' Passing to the question of stoppage in transitu, there is STOPPAGE IN TRANSITU. 243 no doubt that the property passed, but there never would be any need for stoppage in transitu if it did not. The reason is that the risk is on the buyer (consignee), and if the goods are destroyed they are at the buyer's risk ; but it does not follow from that, that a bankrupt is to have them delivered to him unless he is ready to pay the price, and that is the reason for the vendor's (sender's) lien. The seller (sender) parts with his lien by giving up the goods to the buyer (consignee) or his agent, •or to a carrier des-ignated by him, and the right of stoppage in transitu continues until the goods are in the hands of the buyer (consignee) or his agent, or till they are on a fresh transit. The arrival of the goods, to do away with the right to stop in transitu, must be an arrival on which the buver has taken real or constructive possession of the goods, and that is not so long as he refuses to accept. Therefore, in this case, the transitus had not come to an end. There is a bye point, viz., the alleged delivery and the effect of that on the right to stop in transitu, and there have been questions if a delivery of a part of the goods under a contract puts an end to that right. It has been said that a delivery of a jsart is a delivery of the whole but that decision has been dissented from, and it has been said that it is only so when the delivery of the part is in course of delivery of the whole, and the taking possession of that part is then an acceptance of constructive possession of the whole. It would seem, therefore, that the law on that point, as on the question of stoppage in transitu, depends on the buyer (consignee) having taken possession of the goods. Therefore, the mistake of the carter had no effect on the rights of the parties, as it was not a taking possession by the buyer of a part of the goods. I think this is a very plain case of stop- page in transitu, and that our Judgment should be for the Company." Justice M. Smith said—" The strength of Plaintiff's case was that the goods had been in the hands of the Company as warehousemen for Parsons ; but they could not be so without his consent, and it is clear that he never meant to take them, and if he had not become a bankrupt he would have resisted taking possession." Judgment for Company.— Tri'eci in Court 244 STOPrAGE IN TRANSITU. of Gominon Pleas, January 17, 1866. — From Law Times Re- pm^ts, vol. 13, page 764. ■117i Berndtson V. Strong.— Action in respect to stoppage in transitu. A quantity of timber was to be sent from Sweden to London. The contract was that it was to be delivered free on board. The seller was to provide ships at rates not exceeding a certain limit. It was subsequently agreed that the buyers should themselves charter a ship to convey a cargo to London. This was done, but before the timber arrived in London the buyers had gone into liquidation, and their assignee had acquired the timber and sold it for the benefit of the estate. The sender in Sweden now sued the assignee for the value of the timber, upon the plea of stoppage m transitu. The ship was, from bad weather, several months on the voyage, and on March 24 had to j)ut into Copenhagen, where sender served notice of a stoppage in transitu on the captain before the ship went on to London. It was held by Lord Chancellor Cairns that the seller was entitled, by virtue of his right of stoppage in transitu, to the })roeeeds of the cargo paid into Court. Held also, varying the decree, that he was not entitled to the money paid upon the policy of insurance ; and, thirdly, that he was entitled to retain so much of the dividend (5s. in the £) received from the trustees as would be equal to a dividend on the unpaid balance of his debt, the residue being set off against an equal amount of the fund in Court. — Tried in Court of Chancery, April 21, 1868. — From Law Journal RepoHs (Chancery), vol. 37, page 6Q5. A 118. Coventry • y. Gladstone. — Action, stoppage in tran- situ. Gillanders, A., & Co. shipped linseed from Smyrna to Wilson & Co., London, by a general ship. Wilson & Co., having obtained the bill of lading, mortgaged the cargo, and subse- quently, before the ship's arrival, became bankrupt. Wilson & Co.'s mortgagees, after the ship had arrived, obtained a delivery order for the linseed and handed it to an officer on board the ship, who promised to deliver the linseed to them when he got it clear. Held — That this did not amount to a constructive delivery of the goods, and that the sender's right of stoppage STOPPAGE IN TRANSITU. 245 in transitu remained. The test of the sender's right of stoppage is not whether the voyage is at an end, but whether there has been a dehvery of the goods to the consignee. In order to create a constructive delivery, there must be a fresh agreement between the parties as to holding or delivery of the goods. — Tried in Court of Chancery, March 2, 4, 1868. — From Law Journal Reports (Chancery), vol. 37, page 492. 1"19. Ex parte Barroiu, re Worsdell. — Action in respect to stoppage in transitu. A quantity of leather was shipped by steamer to Falmouth, and was unloaded into the carriers' warehouse. The consignee (Worsdell) could not be advised of the arrival of the goods because, before the goods were landed, he had become an absconding bankrupt. The course of business of the Falmouth carriers' agents was to hold the goods subject to the order of the consignee on his paying warehouse rent and freight. On 4th November Worsdell was adjudicated a bank- rupt, and a receiver appointed, and on the same day, the goods not having been paid for, and not having been claimed on behalf of the consignee, the senders telegraphed to the carriers' agents at P^almouth to stop delivery. Held — That the transit was not at an end when the goods were stopped, and nothing having taken place to constitute the carriers at Falmouth bailees for the consignee. Semble — That a wharfinger holding goods in transitu can- not turn himself into an agent for the consignee, so as to put an end to the transitus, without the express authority of the consignee. — Tried in Court of Bankruptcy, March 12, 1877. — From Lata Journal Reports, vol. 46, page 71. 120, ^'^ 1'^ McLaren, ex parte Cooper. — Action in respect to stoppage in transitu. On 30th July 114 tons castings were sent in a ship from Scotland to London, consigned to M'Laren, who traded in London on his own account. He, however, was likewise a partner in the firm sending the castings (Albion Iron Company, Alloa). On the 7th August M'Laren's manager in London commenced to unload the ship, and had actually unloaded thirty tons, and paid freight on that quantity, when M'Laren, who was in Scotland, telegraphed to stop unloading any more castings until he reached Jvondon. M'l^aren filed a 246 STOPPAGE IN TKANSITO. petition of liquidation, and then his assignee claimed the re- mainder of the castings, and so likewise did the senders in Alloa^ In the Comt of Appeal it was held that at the time whea M'Laren directed the delivery to be stopped the goods were in. the hands of the shipowner as carrier, and that the transitus was not at an end ; that accordingly the senders (vendors) could' exercise their right of stoppage in transitu; and that the delivery of the thirty tons was not such a constructive delivery of the whole cargo as to prevent the exercise of that right or to make the act of jNI'Laren in refusing to accept delivery a fraudulent preference of the Scotch firm ; that the fact that M'Laren was also a partner in the Scotch firm made no differ- ence. Fer Lord Justice Brett — " Part delivery of a cargo, or of the bulk of the goods, is not prima facie delivery of the whole." Per Curiam — " When goods are placed in the possession of a carrier to be carried and delivered, the transitus is not at an end so long as the carrier continues to hold the goods as carrier, and is not at an end until the carrier, by agreement between himself and the consignee, agrees to hold the goods for the consignee, not as a carrier, but as his agent; and the same principle will apply to a warehouseman and wharfinger. Judgment for senders. — Tried in the Court of Appeal, Feb- ruary 20, 1879. — From. Law Journal Reports {Bankruptcy), vol. 48, page 49. 121 , Ex parte JRosevear China Clay Company, re Cock. — Action in respect to stoppage in transitu. A contract was made for the sale of a quantity of china clay, to be delivered free on board at a specified port (Fowey), payment to be by the purchaser's acceptance. The purchaser chartered a ship, and gave notice to the sender (vendor), who then delivered the clay on board the ship at the specified port. Before the ship leftr Fowey the sender, hearing that the purchaser was insolvent, gave notice to the master of the ship to stop the clay in transitu. No bill of lading had been signed, nor had the pur. chaser given any acceptance in payment of the contract price. Delivery of goods by a vendor (sender) on board a ship chartered by the purchaser is only constructive and not actual delivery to the purchaser, inasmuch as the contract with the STOPPAGE IN TKANSITU. 247 master of the ship to carry the goods does not make him the agent of the purchaser; and so long as the goods remain in the hands of the master of the ship as carrier the vendor's (sender's) right of stoppage in transitu continues. Till the goods are actually delivered to the purchaser or his agent the transitus is not at an end, and it makes no difference that the ultimate destination of the goods has not been com- municated by the purchaser to the vendor (sender). Held — That the clay was in the possession of the master of the ship only as carrier, and not as agent of the purchaser ; that the transitus was therefore not at an end ; and that the vendor (sender) had duly exercised his right of stoppage in transitu. — Tried in Court of Appeal, April 24, 1879. — From Law Times Reports, vol. 40, page 730. Circumstances under WHICH THE Transitus is at an End. Case No. Case No. Scott V. Pettit (ISOS) ... 122 Allan y. Grtpper (\m2) 126 Hurry v. Mangles (1808) ... ... 123 Schotsman v. L. ^ Y. (1867) ... 127 Rowe V. Pickford (1817) ... ... 124 Fx parte Gibbes, re Whitworth Foster v. Frampton (1826) ... 125 (1875) 128 DIGEST. In Scoit V. Pettit (isos) Defendant was a " packer " in London, and goods sent to consignee were addressed to the " Bull and Mouth " Inn. There was a standing order for such goods to be thence delivered to Pettit's house. Consignee became an absconding bankrupt, and his assignee (Scott) claimed the value of the goods which Pettit had delivered to sender. Lord Alvanley held the trayisitus had ended at Pettit's house, and the assignee could recover. In Hurry v. Mangles (isos) Defendant, a warehouse- man, sold oil lying in his warehouse to J. S. on a bill for six months. J. S. sold the oil bond fide to Hurry (Plaintiff), and Hurry paid warehouse rent, but did not remove the oil. J. S. became bankrupt, and hence his bill was of no value, and Defendant refused to 248 STOPPAGE IN TRANSITU. give up the oil to Hurry. Lord Ellenborough held the acceptance of the warehouse rent by Defendant was a complete transfer of the goods to the purchaser. This Avas an executed delivery from the seller to the buyer. In Rowe v. Pickford (i8]7) goods arrived in London from Manchester, and consignee was advised. He became a bankrupt, and did not remove the goods. It was consignee's practice to allow the goods to remain in the carrier's warehouse until he shipped them to the Continent. Sender gave notice to carrier of stoppage in transitu. Held by Justice Chambre — That the tran- sitiis had ended, and the bankrupt's assignee could recover the value of the goods. In Foster v. Frampton (i826) consi^ee sampled three hhds. sugar, and told the carrier to keep the casks in his warehouse for him. Justice Bayley held that from that time the carrier became the warehouseman of the bankrupt (consignee), and the goods were as much in the possession of the latter as if he had taken them into his own warehouse. In Allan v. Gripper (1832) oil cake was carried by canal, Twickenham to Hertford, and before Allan (sender) gave notice of stoppage in transitu the cake had been unloaded into the carrier's ( Grippe r's) ware- house at Hertford on account of Pestall, the consignee. Pestall used the carrier's warehouse as a store for his cake, sometimes for months at a time, and sold the cake from the warehouse. Lord Lyndhurst held that the transitiis of the cake was at an end when in the warehouse. In Schotsman v. Lancashire and Yorkshire (1867) a cargo of flour was sold at Rouen to Fort & Co. (Cun- lifFe). Now CunlifFe was not only Fort & Co., but also a registered owner of the " Londos " vessel that carried the flour from Rouen to Goole ; hence the captain was his agent. Cunliffe became bankrupt. The flour was unloaded into the Company's warehouse at Goole. The Lord Chancellor held that, as the flour STOPPAGE IN TRANSITU. 249 had been delivered at Rouen to an agent of Cunliffe, the seller's right of stoppage in transiiu was gone. In Ex parte Gihhes^ re Whitworth (1875) Whitworth & Co. accepted a bill of exchange for value of 144 bales cotton, upon which they received the bill of lading. The Lancashire and Yorkshire Company got the cotton in Liverpool on the bill of lading, and sent the cotton on to Whitworth & Co., Luddenden Foot Station, where Whitworth & Co. had a siding into their cotton mill. Part of the cotton passed into the mill, and some por- tion lay in railway waggons in the Company's station. Gibbes (the seller) desired to stop this portion in tran- situ. Chief Justice Bacon held that Avhen the Railway Company paid the sea charges, and got the cotton in Liverpool, there was an end to the tramiius as far as Gibbes was concerned. 122i Scott V. Pettit. — Action in respect to stoppage in transitu. Goods were forwarded from Manchester by carrier to the consignee at the " Bull and Mouth " Inn. There was a general order and practice for consignee's goods to be thence sent on to the house of Pettit (Defendant), who was a packer. Consignee became an absconding bankrupt, and his assignee claimed the goods from Pettit, and the day after sender likewise claimed the goods from Pettit. Pettit, on an indem- nity, delivered the goods to sender, and the assignee then commenced this action against Pettit. Lord Chief Justice Alvanley said — " The question is whether, under the circumstances of this case, the delivery of the goods to the packer is to be considered as a delivery to the bankrupt (consignee). It seems to me impossible to raise a doubt whether the transitus was at an end or not, for if the bankrupt had no warehouse (which was proved) to receive the goods but that of the packer, the transitus never could be at an end if it did not end there. Under all the circumstances of the case, I am clearly of opinion that the consignees were not entitTed to consider the Defendant in the light of a mere packer, to stop the goods in his custody." Held — That the transitus of the 250 STOPPAGE IN TRANSITU. goods was at an end when they arrived at the packer's house,, and consequently the assignees of consignee were entitled to recover them. — Tried in Court of Common Pleas, June 28, 1803.— i^'rom Bosanquet and Puller's Reports, vol. 3, page 468. 123. Hwi^y V. Mangles.— Action for a quantity of oil detained by warehouseman. The defendant (Mangles) is a warehouseman, and on the 19th April, 1806, sold the oil to J. S., to be paid for by his acceptance at six months. J. S., after giving his acceptance, on the next August sold the oil to Plaintiif (Hurry), who purchased it bona fide, and paid for it at the rate agreed. The oil still remained in the warehouse, and Hurry paid warehouse rent. J. S. became insolvent before his acceptance was due, and Mangles refused to deliver up the oil to Hurry; hence this action. It was contended that in Mangles' books the oil had never been transferred from J. S.'s name. Lord EUenborough said — "The acceptance of warehouse rent was a complete transfer of the goods to the purchaser. If I pay for a part of a warehouse so much of it is mine. This is an executed delivery from the seller to the buyer. If there was any conspiracy or contrivance on the part of the Plaintiff to cheat the Defendants out of the price of the goods, proof of that will be an answer to this action ; but it would be overturn- ing all principles to allow a man to say, after accepting ware- house rent, ' The goods are still in my possession, and I will detain them till I am paid.' The transitus was at an end. ■ The goods were transferred to the person who paid the rent as much as if they had been removed to his own warehouse, and there deposited under lock and key." Judgment against ware- houseman. — Tried at Nisi Prius, November 4, 1808. — From CarapbeWs Reports, vol. I, page 452. 1 24-. Roive V. Pickford. — Action in respect' to stoppage in transitu. Goods were sent from Manchester addressed to consignee in London. Consignee's practice was to allow his goods to remain in the carrier's warehouse until he could ship them to the Continent. In the present case, a few days after the goods arrived and consignee had been advised of their arrival, he became a bankrupt. The sender gave the carrier STOPPAGE IN TRANSITU. 251 notice of stoppage in transitu, which the carrier acted upon,' and subsequently the goods were delivered to a second con- signee by senders orders. The assignee of the bankrupt then commenced this action against the carrier. Judge Chambre said that he was strongly inclined to think that, if a man be in the habit of using the warehouse of a wharfinger as his own and make it the repository of his goods, and disposes of them there, the journey would be at an end when the goods arrived at such warehouse ; and in Scott v. Pettit Lord Alvanley said he perfectly coincided with ]\Ir. Justice Chambre in that which he had intimated in the former case. Uoth these cases were recognised in Dixon v. Baldvjin, and were confirmed by Lord Ellenborough. Held — That the assignees of the bankrupt were entitled to recover the goods deposited with the can-ier, and that the right of the consignee to stoppage in transitu ceased on the arrival of the goods at the waggon office of the carriers in London. — Tried in Court of Common Pleas, November 25, 1817.— From Taunton's Reports, vol. 8, page 83. 125. Foster V. Frampton. — Action for three hhds. sugar where delivery was stopped by sender, London to Birmingham. After the arrival of the sugar, consignee sampled the same, and told the carrier to keep the casks in his warehouse for him. Subsequently consignee (Fowler) became an absconding bank- rupt, and his assignee (Foster) sued sender (Frampton) for the value of the three hogsheads, sender, on a bond of indemnity, having obtained the sugar from the carrier (Corbett). Justice Bayley said — " It seems to me that in this case the transitus was at an end. Where a man orders goods to be delivered at a particular place, the transitus continues until they are delivered to the consignee at that place ; but that must be understood of a delivery in the ordinary course of business, for if the consignee, before the goods reach their ultimate destination, postpones the delivery or does any act which is equivalent to taking actual possession of them, the transitus is at an end. Now here the bankrupt has done such an act, for he not only postponed the delivery which would have taken I)lace in the ordinary course of business, but he took samples, 252 STOPrAGE IN TRANSITU. and directed the carrier to keep the goods in his warehouse until he received farther directions. From that time the carrier became the warehouseman of the bankrupt, and the goods were as much in the possession of the latter as if he had taken them into his own warehouse." Judgment against the sender for the value of his own goods which he had recovered from the carrier. — Tried in Court of King's Bench, November, 1826. — From Barneiucdl and CressiveWs Reports, vol. 6, page 107. 126. Allan v. Gripper. — Action in respect to stoj)page in traTisitu. The goods consisted of 2,000 oil cakes carried, Twickenham to Hertford, by canal, consigned to Pestall. On senders (Plaintiffs) hearing that consignee was a notorious insolvent, they sent notice to Gripper, the carrier (Defendant), not to deliver the cakes, but before this notice was received the cakes had been unloaded into the carrier's warehouse. The carrier also said he would deliver the goods to no one, as Pestall was in his debt, and he wished the goods were double the quantity. Lord Chief Baron Lyndhurst, on appeal, said — " The facts of the case are shortly these : Pestall had been in the habit of em- ploying these defendants for several years, and the course of dealing appeared to be that the oil cakes were carried to Hert- ford in the carrier's barges, and deposited in the carrier's ware- house, generally for many months ; and evidence was given in the cause that if Pestall had sent his carts for oil cakes to the warehouse at the time in question, these oil cakes would not have been sent, but those which had been a longer period in the warehouse. There was also evidence to show that they were so deposited for the convenience of Pestall, that they might be distributed to his customers, many of whom resided in the neighbourhood. I left it to the Jury to say whether this was the place of final destination. They said that they thought these oil cakes were to be deposited like the rest, and that the warehouse was the place of final destination and deposit. On this state of facts it appears to me that the transitus was at an end, and that the Plaintiffs' (senders') right of stoppage in transitu was gone." Judgment for carrier. — Tried in GouH of Exchequer, Hilary Term, 1832. — From Crompton and Jervis's Reports, vol. 2, page 218. . STOPPAGE IN TRANSITU. 253 127. Schotsnian v. Lancashire and Yorkshire Railway Company. — Action in respect to stoppage in transitu. The Plaintiff, Schotsman, contracted to sell to James Fort & Co. (Cunliffe) 1,870 sacks of flour. The flour was shipped in the "Londos" at Eouen, consigned on bill of lading to "Fort & Co., or assigns, he or they paying freight for the same at and after the rate as per agreement." Now Cunliffe was not only Fort & Co., but also a registered owner of the " Londos," and consequently the captain was his agent. Schotsman, finding that Fort & Co. (Cunliffe) had become bankrupt, demanded the flour from the captain on arrival of the "Londos" at Goole. The dehvery was refused, and the flour was deposited in the warehouses of the Lancashire and Yorkshire Eailway Company. The Lord Chancellor said — " It is of the essence of the doctrine of stoppage in transitu, as was most correctly and clearly stated by Lord Cranworth (when Baron Eolfe) in the case of Gibson v. Gamithers (8 Mee. & W., 321), 'that during transitus the goods should be in the custody of some third person intermediate between the seller, who has parted with, and the buyer, who has not yet acquired, actual jDossession.' If the goods are actually delivered to an agent of the consignee, employed by him to receive delivery, the sender (vendor) is divested of his right of stoppage in transitu. On the other hand, although there is an actual delivery to the consignee's (vendee's) agent, the sender (vendor) may annex terms to such delivery, and so prevent it from being absolute and irrevocable. In this case the goods were shipped on board the consignee's own ship and delivered into the possession of his own servant, the master, who signed bills of lading making the flour deliverable to the consignee or assigns. There was, therefore, a delivery to the agent for his principal, and no control over the delivery was in terms reserved to the sender (vendor)." Judgment accordingly, sender being unable to stop the goods, which became claimable by Cunliffe's (Fort & Co.'s) assignee. — Tried in Court of Chancery, January 16, 17, 28, 1867. — From Lavj Journal Repoiis, vol. 36, page 361. 128. Ex paHe Gibbes, re WhitwoHh. — Action in respect to stoppage in troMs'du. Gibbes & Co., Charleston, U.S., sold 254 STOPPAGE IN TKANSITU. 144 bales cotton to Whitworth & Co., Luddenden Foot, York- shire. Gibbes & Co.'s agent in Liverpool, before arrival of the cotton, sent a bill for acceptance to Whitworth & Co., and on return of that bill of exchange, duly accepted, the bill of lading was handed over to Whitworth & Co. Whitworth & Co. then sent the bill of lading to Mr. Windle, manager in Liverpool for the Lancashire and Yorkshire Kailway Company, and he paid freight and sent forward the cotton to Luddenden Foot Station. At this station Whitworth & Co. had a siding into their mill. They unloaded and took from the trucks part of the 144 bales cotton, and used it in manufacture. They then became bankrupt, and Gibbes' agent claimed the bales of cotton from the Kailway Company that had not actually passed into \\Tiitworth & Co.'s possession. Chief Judge Bacon said — " When Mr. Windle, acting as agent for Whitworth & Co., paid the sea charges, which he did on Whitworth's accoimt, he became holder of the bills of lading for Whitworth & Co., and the goods were delivered to him in that character, and there was an end of all transitus. The transitus that takes place after that is only prescribed by the purchaser ; the sender (vendor) has nothing to do with it. The vendor's transitus is at an end, and it is in vain to read cases in which, a ship being chartered for London, the goods are not delivered from the ship until the vendor exercises his right of stoppage, or, being chartered for London, the ship is stopped at Copenhagen. All these are familiar instances of stoppage in transitu. What can that have to do with the case when it is a case of bargain and sale of goods to be delivered on the wharf at ljiveq)ool on certain conditions being complied with, which conditions are complied with ? The delivery takes place, the transitus is at an end, and the right at law to stop these goods after that never exists." Judgment accordingly. — Tried in Court of Bankruptcy, November 8, 1875. — From Law Journal Reports, vol. 45, page 10. STOPPAGE IN TRANSITU. 255 Case Case No. No. ... 129 Johnson v. L. ^ Y. (1878) 135 . ... 123 Golding Davis v. Knight (1880) 131 6) ... 130 DIGEST. Where the Property has Passed to a Third Person by Purchase. Lickharrow v. Mason (1794) Hurry v. Mangles (1808) Pooley V. Great Eastern (1876) In Lickharrow v. Mason (1794) a cargo of corn arrived in Liverpool. Consignee had sold the corn for a valuable consideration, and indorsed bill of lading to purchaser. It was held that the right of stoppage in transitu was lost unless fraud could be proved. In Hurry v. Mangles (I8O8) Defendant, a warehouse- man, sold oil lying in his warehouse to J. S. on a bill for six months. J. S. sold the oil bond fide to Hurry (Plaintiff), and Hurry paid warehouse rent, but did not remove the oil. J. S. became bankrupt, and hence his bill was of no value, and Defendant refused to give up the oil to Hurry. Lord Ellenborough held the acceptance of the warehouse rent by Defendant was a complete transfer of the goods to the purchaser. This was an executed delivery from the seller to the buyer. In Pooley v. Great Eastern (i876) a quantity of tram- way rails were consigned by Plaintiff to his order at Ipswich. Pooley transferred the rails to Jeffrey & Co., and Jeffrey & Co. transferred them to Davis as security for a loan of £150. Jeffrey & Co. paid sender £123, and gave a bill for the difference, but, by becoming bankrupt, could not pay the bill. The Company wrote Davis — " I have yours of yesterday, enclosing transfer of rails, and I beg to say I hold them to your order." Chief Baron Kelly held that this was a recognition of Davis's claim to the rails. The Company then holding the rails on account of Davis, the Plaintiffs (senders) lost their right of lien as unpaid vendors, and are not entitled to recover. In Johnson v. L. & F.(i878) the Company handed back 256 STOPPAGE IN TRANSITU. to senders 38 railway wagcrons, taking from senders an indemnity. Senders consigned the waggons to Lock- w^ood, and Lockwood transferred them to Johnson. Now Johnson refused the waggons, but gave the Raihvay Company notice not to deliver them exce2yt to his^ order. The Company having had Johnson's order to hold the waggons for him, the transitus was at an end. Judgment against Company for £646. In Golding Davis v. Knight (isso) caustic soda was sold by Golding Davis to Knight, and Knight resold to Taylor «^e 34. (In Smith v. Home, Justice DAMAGE AND LOSS OF GOODS. 341 Burrough says the doctrine of notice was never known until the case of Fonvarcl v. Pittard. I suppose, therefore, it must have grown out of this case, but certainly I cannot trace any mention of it in the report of the case.) 188. London and NoHh Western Railway Company v. Glyn (Globe Insurance Company). — Action for £15,000 on a policy of insurance on goods, burnt in A Shed, Camden Station, when said shed was burnt down. The insurance was " on goods their (Company's) own and in trust as carriers therein." The policy was endorsed with conditions. (No. 1.) " In every case of loss, duly proved, the (Insurance) Company will reinstate the property, or the assured shall receive satisfaction to the amount thereof, without discount or deduction." (No. 2.) " Goods held in trust, or on commission, are to be insured as such, otherwise the policy will not extend to cover such property." The Insurance Company contended that they were only liable to the Eailway Company to such an extent as the Eail- way Company were liable to their customers, and no more. It appeared a case of silk was burnt. This was of value over £10, but not having been so declared to the carrier, the Company, under the Carriers' Act, were not liable. The Insurance Company claimed that, consequently, they were not liable to the Eailway Company. Justices Erie, Wightman, Crompton, and Hill decided in favour of the Company, quoting the case of Watson v. The Monarch Insurance Compa7iy (25 Law Journal Eeports, vol. 25, page 102, Q. B.), decided by Lord Campbell. The Eailway Company were held to have insured the whole value of all goods in the warehouse, and not simply the value the owners of the goods might claim from the Company as carriers. — Tried in Court of Queen^s Bench, January 22, 1859. — Law Journal Reports, vol. 28, page 188. 189. Martin v. Great Indian Peni'nsular Railway Company. — Action for an officer's luggage destroyed by fire while in transit in India on the Great Indian Peninsular Eailway, Budnairah to Bombay. The Plaintiff and his lugagge were carried under a contract with the Indian Government for removing troops. A military guard was sent with the train, and one of the conditions of carriage was as follows : — " If the number of troops is sufficiently large, a special train will be provided, and due notice, of at least six hours, shall be si^'cn to the I'ailwav autlioritics of 342 DAMAGE AND LOSS OF GOODS. the train being required. For the baggage of all detachments above forty the Company shidl provide the number of suitable waggons stated in the requisition, for which they shall be paid at the rate of 1 J annas (2id.) per waggon per mile. The baggage shall remain in charge of a guard provided by the troops, the Company accepting no responsibility. " The Company contended that they were not liable under the contract, that they made no contract with Plaintiff, and that he could not recover. It was admitted that the rule making carriers insurers exists in England as a custom of the realm, and does not extend to India. Chief Baron Kelly gave Judgment — " It is contended by the Company that though it must on demurrer be taken that the luggage was destroyed by their own gross negligence and wilful default, yet under the proviso set out they are protected from liability. We are of opinion this limitation of responsibility would cover any loss of the baggage in the custody of the guard occurring through the want of due care on the part of the guard ; it is not applicable to luggage lost through the mere negligence of the Company. The pleadings suggest a destruction by fire through the Company's negligence. The Company are liable for this loss, and the Judgment must be against them. As to the contract, the Court think that a wrong was done by which the Plaintiff is affected in his property, and for which, therefore, independently of the contract, he has a right to obtain redress." It was thus held — That although the Plaintiff could not sue the Company for non-performance of their duty as carriers, he was entitled to sue for an injury done to his property, through their negligence, whilst the goods were in their custody. Barons Bramwell, Channell, and Pigott concurred.— TriecZ in Court of Exchequer, November 18, 1867. —From Law Reports, Exchequer, vol. 3, page 9. 190. Scaife V. Farrant. — Action for furniture contained in a furniture van being .burned and destroyed in transit. The Defendant Farrant was carting agent at Torquay for the South Devon Eailway Company, and advertised himself as a carrier for removing and carrying goods and furniture for hire. The furniture in question was removed from Paignton to Plymouth, the charge being £22 10s., which was to include risk of break- ages in transit, including the use of all necessary mats, cases, DAMAGE AND LOSS OF GOODS. 343 and packing materials, and every expense. Plaintiff, in accept- ing the offer made for the carriage, signed a printed form as follows : — " To Mr. Wm. Farrant.— I hereby agree to pay you the sum of £22 10s. for the removal of my furniture and effects from Paignton to Plymouth, you under- taking risk of breakage (if any), not exceeding £5 on any one article." — H. M. SCAIFE. During the journey on the railway from Paignton to Plymouth, the van accidentally, and without negligence on the Defendant's part, caught &e, and the furniture and effects were almost entirely consumed. On the a^Dpeal case Justice Lush said—" I agree with the Court below that the letters sent out in this case (between the parties) constitute a special contract, and think that, whether without these letters the Defendant would have been liable or not for the accident which happened to the goods, the terms of the contract sufficiently show that both parties understood that the risk undertaken by the Defendant was of a much more limited character. The fair meaning of the letters is that the Defendant was willing to undertake a particular casualty and no other, and to pay up to £5 for any article damaged by that casualty, and this the Plaintiff must have understood to be the meaning. By that contract both parties are bound. I agree that it does not exclude liability for such damage as might result from want of due and reasonable care in the packing or the carriage of the goods ; but the damage was not caused by any such result, but, so far as the Defendant is concerned, was purely accidental. I think, therefore, that the Judgment should be affirmed." The remainder of the Comt concurred. Judgment for the carrier. — Tried in the Court of Exchequer Chamber, July 7, 1875. — From Laio Reports, Exchequer, vol. \0, jpage ?>5S. 191, Chapman v. Qreat Western ami also London and NoHh Western Railivay Companies. — Action for value of two packages drapery destroyed accidentally by fire at Wimborne Goods Station, which was burnt down on the morning of the 27th March, 1880. One package was sent from Bristol per Great Western Company, and one from London per London and North Western Company. Plaintiff was a travelling pedlar, 344 DAMAGE AND LOSS OF GOODS. and the packages were consigned " till called for." One arrived at Wimbome on 24th March, and the other on 25th March. Plaintiff called on 22nd March for the goods, before they arrived, and next called on 27th March, after the fire. The case was first tried at Nisi Prius, when it was agreed for a verdict to pass for Plaintiff, subject to appeal. On the appeal case, in the Com-t of Queen's Bench, in delivering Judgment, Lord Chief Justice Cockbum said — " The question of where the liability of the carrier ceases, or rather becomes exchanged for that of an ordinary warehouse- man for hire, is sometimes one of considerable nicety, and not easy of solution. " The case becomes changed when the carrier is ready to deliver, and the delay in the delivery is attributable not to the carrier but to the consignee of the goods. Here again, just as the carrier is entitled to a reasonable time within which to deliver, so the recipient of the goods is entitled to reasonable time to demand and receive delivery. He cannot be expected to be present to receive delivery of goods which arrive in the night time, or of which the arrival is uncertain, as of goods coming by sea or by a goods train, the time of the arrival of which is Uable to delay. On the other hand, he cannot for his own convenience, or by his own laches, prolong the heavier liability of the carrier (contrasted with that of warehouseman) beyond a reasonable time. He should know when the goods may be expected to arrive. If he is not otherwise aware of it, it is the business of the consignor to inform him. His ignor- ance, at all events, where the carrier has no means of communi- cating with him, which was the case in the present instance, cannot avail him in prolonging the liability of the carrier, as such, beyond a reasonable time. When once the consignee is in mora by delaying to take the goods beyond a reasonable time, the obligation of the carrier becomes that of an ordinary bailee, being confined to taking proper care of the goods as a warehouseman ; he ceases to be liable in cases of accident. What will amount to reasonable time is sometimes a question of diffi- culty ; but as a question of fact, not of law, as such it must depend on the circumstances of the particular case. It would be in the highest degree unreasonable that the Company, having DAMAGE AND LOSS OF GOODS. 345 agreed to carry the goods " till called for " for the convenience of the owner, should be saddled with a more onerous liability than would otherwise have attached to them. It cannot be supposed that the Company undertook to keep the goods (as carriers) an indefinite time, until it suited the convenience of the Plaintiff to take them away. Plaintiff must put up with his loss as resulting from his own delay in removing the goods." Justices Lush and Manisty concurred. Judgment for Company. — Tried in Queen's Bench, April 7, 1880. — From Clearing House Claims Reports, page 488. — RepoHed in Laiv Times RepoHs, vol. 42, page 252. Damage by Wet. Case No. Kohinson y, Bunmore (1801) ... 192 Siordet v. Hall (1828) ]93 Dams V. Garrett (1830) 194 Collard v. South Eastern (18G1) 206 Case No. Peel Y. N. S. (ISeS) 168 Lindsay Y. G. N. of 8. (1872) ... 195 D'Arc v.L. ^ N. W. (1874) ... 171 Mitchell V. L. 4' T. (1875) 196 DIGEST. In Rohinson v. Dunmore (isoi) furniture, conveyed by cart from London into the country, was damaged by wet owing to the smallness of the tarpaulin. The carrier said — " I have plenty of sacks, and I will warrant the aroods shall go safe." Justice Chambre held the Defendant liable, saying — "He is not a common carrier by trade, but he has put himself into the posi- tion of a common carrier by his particular warranty." In Siordet v. Hall (1828) a cargo in a steam vessel was damaged by water, through the pipe of steam boiler bursting in consequence of having been cracked by frost. Held — That this was not an act of God, but negligence in the filling of the boiler with water before the time for heating it, although it was the practice to till overnight when the vessel started in the morning. Judgment against the carrier. In Davis v. Garrett (i830) 114| tons of lime, in a barge, was being conveyed, Bewley Cliff to Regent's 346 DAMAGE AND LOSS OF GOODS. Canal. The barge deviated from the usual course, and the deviation would appear to have caused delay. A tempest came on and wetted the lime ; the barge took fire, and all was lost. It was held that the law implies a duty on the carrier to proceed Avithout unnecessary deviation in the usual course. Judgment against the carrier. In CoUard v. South Eastern (I86I) eight pockets of hops were damaged by wet. The Company paid the estimated loss by wet (£7 14s. 3d.) of 8 lbs. per pocket into Court. Plaintiff proved it took from October 29th to November 10th to thoroughly dry the hops, which, being marked by the Excise, he dare not unpack. During this time the market price fell to the extent of S.^b. Baron Martin, on appeal, said — " When brought to market (the hops), we find the market price fallen by £65. If that is not a direct, immediate, necessary, and essential consequence of the breach of contract by the Company, I cannot under- stand what is. Judgment against Company for the £65. In Peek v. North Staffordshire (1863) sender wrote to the Company — " Please forward the three cases of marble, not insured, to W. Peek, Esq. ; to be called for at Camden Town Station, London." The damage arose from wet and rust from the nails of the packages, which, with the water, had soaked through the cases and discoloured the marble. Lord Westbury, in the House of Lords, held that "it is not competent, by any description of parol evidence, so to interpret the Avords ' not insured,' as to embody or incorporate the condition itself into the letter, and thereby make it a special contract in writing Avithin the 7th section of the Act of 1854." The Judgment Avas, consequently, against the Company. In Lindsay v. Great North of Scotland (i872) flour was carried at station to station rate under a special contract Ihniting the Company's liability to " Avilful negligence." The flour got Avet to the extent of £6 damage. The flour was loaded by sender. The DAMAGE AND LOSS OF GOODS. 347 Company were held not liable nnder the special contract. In D'Arc v. London and North Western (1874) a wax- work figure, in a case, was delayed and damaged by wet. Senders used their own forwarding note, on which was written, " Forward packages at our o^vn risk." Justice Denman held — That such remark as this was not sufficient, as " the delay and consequent damage had not been the probable risk evidently in the contemplation of the sender." In Mitchell v. Lancashire and Yorhhire (1875) sixty bags flax were damaged by wet through being stacked on the ground without any timber under them. The Company's advice to consignee gave notice that the Company held the flax, not as carriers, but as ware- housemen, at owner's sole risk. Justice Blackburn said — " It seems to me unreasonable to construe the terms of the advice note as meaning that the Company should hold the goods for the benefit of receiving rent for warehousing them, without any liability Avhatever, except that they must not convert, or sell, or steal them." Judgment against Company. 192. Robinson v. Dunmore. — Action for furniture damaged by wet. Plaintiff hired Defendant to cart his furniture from London into the country. Plaintiff complained of the smallness of the tarpaulin, and Defendant replied — "I have plenty of sacks, and I will warrant the goods shall go safe." Plaintiff, however, not having any knowledge of Defendant, sent a porter with the cart to look after the general safety of the property. On the first trial, at Westminster, a verdict was given for Defendant. Plaintiff appealed, and on the appeal case Justice Chambre said — " The Defendant is not a common carrier by trade, but has put himself into the situation of a common carrier by his particular warranty. As to possession, that seems clearly proved. How is this affected by the presence of the Plaintiff's sei-vant? It has been determined that if a man travel in a stage coach and takes his portmanteau with him, though he has his eye upon the portmanteau yet the carrier is not absolved from his responsi- 348 DAMAGE AND LOSS OF GOODS. bility, but will be liable if the portmanteau be lost. In this case the Plaintiff, for greater caution, sends his servant with the goods, who pays for watching them because he apprehends danger of their being stolen. So the man who travels in a stage has some care of his own property, since it is more for his interest that the property should not be lost than that he should have an action against the carrier. The evidence of the warranty is perfectly clear, for on the Plaintiff making some objection to the smallness of the tarpaulin the Defendant, in order to remove that difficulty, informed him that he had plenty of sacks to cover the goods, and undertook that they should be carried safe." Judgment for Plaintiff. — Tried in Court of Common Pleas, May 4, 1801. — From Bosanquet and Pidler's Rejjorts, vol. 2, 'page 416. 193. Siordet v. Hall. — Action for damage to a cargo by water escaping through the pipe of a steam boiler in conse- quence of the pipe having been cracked by frost. Held — That this was not an act of Grod, but neghgence in the captain of the steamer in filling his boiler before the time for heating it, though it was the practice to fill overnight when the vessel started in the morning. Judgment against carrier. — Tried in Court of Common Pleas, May 5, 1828.— From Bingham's Reports, vol. 4, j^age 607. 194. Davis V. Garrett.— Action for £100 for damage to 114^ tons lime, conveyed from Bewley CHff to Eegent's Canal by barge. Plaintiff put on board the earner's barge lime to be conveyed from the Medway to London. The master of the barge de\iated unnecessarily from the usual course, and during the deviation a tempest wetted the lime, and, the barge taking fire thereby, the whole was lost. Held— That the carrier was liable, and the cause of loss sufficiently proximate to entitle Plamtiff to recover under a declaration alleging the carrier's duty to carry the lime without unnecessary deviation, and averring a loss by unnecessary deviation. The law imphes a duty on the owner of a vessel, whether a general ship or hired for the special purjjose of the voyage, to proceed without un- necessary deviation in the usual course. Judgment against DAMAGE AXD LOSS OF GOODS. 349 carrier. — Tried in Court of Common Pleas, Trinity Term, 1830. — From Bingham's RepoHs, vol. 6, jpage 716. 195. Lindsay v. Great North of Scotland Railway Com- pany. — Action for £6 for damage by wet to 22 sacks flour, Kittybrewster to Lhanbryde, caiTied at station to station rates. The Plaintiff contended the damage occurred through wilful negligence, the Company failing to protect the flour from rain during transit. He quoted the Company's consignment note, where it stated — " The Company are not common carriers of goods carried at station to station rates, and will not be responsible for any loss, damage, or delay, except upon proof that such damage, loss, or delay arose from wilful fault or negligence on the part of the Company's servants." He contended it must have been wilful negligence if (as proved) these goods were wet when they reached their destina- tion. Had they been properly covered they could not have been so damaged. The Company contended the goods were loaded and unloaded by owner, at whose sole risk they were conveyed by the Company, and, as " wilful negligence " had not been proved, they were not responsible for the damage by rain the flour had received in transit. The Sheriff said — " At com- mon law the Company would be liable, being insurers, but here it was admitted that these goods were carried under a special contract. Then the contract further bears that when the owners desire the common law risk to be borne by the Com- pany, a rate of 20 per cent, higher shall be charged. It is proved that it was under such a contract and such conditions these goods were carried by the Company. The e\ddence is uncontradicted that the goods were carefully protected when they started, and there is no more evidence on this point except that they were wet when they arrived at their destination. This is not sufficient to impose a liability upon the Kailway Company. The Plaintiff selected the lower rate, and is thus in the same position as a person who has chosen not to insure his goods." Verdict for Company. — Tried in Aberdeen (?) Small Debt CouH, 1872. — (Date and place not repoHed.) 196, Mitchell V.Lancashire and Yorkshire Raihvay Com- pany. — Action for £114 for damage to 60 bags flax and tow 350 DAMAGE AND LOSS OF GOODS. at Newcliurcli Station. On their arrival (26th July, 1873) the Company served consignees (Plaintiffs) with the nsual advice note, which informed consignees the goods remained at the station "to your order, and are now held by the Company, not as common carriers, but as warehousemen, at owner's sole risk, and subject to the usual warehouse charges." Consignees did not remove the goods, and for want of warehouse room they were stacked in the open air, and covered with a tarpaulin. After some time consignees removed a few of the bales and found the tow not the quality ordered, and so refused to take the remainder; however, after correspondence with senders, consignees, in October, took some more of the bales, when it was found the tow had been damaged by wet. The bales had not been stacked on timber to keep them off the ground, and the tarpaulins were alleged to have been imperfect and an insufficient protection from wet. Consignees then again refused the tow, but the Company, relying on their advice, denied liability ; consignees then took the tow and commenced this action. The case was first tried at Liverpool Spring Assizes, 1874, before Justice Denman, where it was practically admitted by the Company that there had been negligence on their part which would render them liable as warehousemen unless they were protected by the advice note. The Jury gave Plaintiff a verdict for £114. The Company ajjpealed, and on the appeal case Justice Blackburn said — " I take it the law is clear that when the Company, as carriers, received the goods they took them with the liability of carriers as insurers. When the goods arrived at thek destination the Company compHed with their duty when they gave notice, and then they ceased to be carriers and incurred from that time a liability as ware- housemen. There are several cases in which the question has been discussed, when the carrier's liability ceased and the other liabiUty began, as in Bourne v. Gatliff (8 Scott N. E., 604), Cairns v. Bdtins (8 ]\Iee. & W., 258, and 10 Law Journal Keports (N. S.), Exch., 452); and I do not know of any case that supports the proposition that, where the owner is in delay in removing the goods, the warehouseman in consequence holds himself discharged from all responsibility. The obligation of the Company was to hold the goods for the owner, and though DAMAGE AND LOSS OF GOODS. 351 the Plaintiffs, under mistake, said they were not the owners they were entitled, when they found out their mistake, to correct it. It seems to me unreasonable to construe the terms of the advice note as meaning that the Company should hold the goods for the benefit of receiving rent for warehousing them, but without any liability whatever, except that they must not convert, or sell, or steal them ; they need not take any care about them." Justice Field said — "I find in advice note these words, 'At owner's sole risk,' following affirmative words which describe the Company's liability. It is that of holders of goods under the known definition of warehousemen making a warehouse- man's charge. Under these circumstances I cannot read these words as freeing the Company from the ordinary liability to take reasonable care." Judgment against Company. — Tried in Court of Queen's Bench, Ajpril 22, 1875. — From Law Journal Reports, vol. 44, imge 107. Damage feom Absence of Packing and Insufficient Packing. Case No. Barhouf \. South Eastern (181 Q) 197 DIGEST. In Barbour v. South Eastern (i876) furniture, unpacked and unprotected by either hay-bands or matting, was sent from London to Dover, and was damaged. Baron Cleasby, on appeal, said — " Xo person is entitled to claim compensation from others for damage occasioned by his neglect to do something which it was his duty to do. Here the goods were delivered in a manifestly unsafe condition, and Plaintiff chose to have them go in the condition they were in." Judgment for carrier. 197. Barbour v. South Eastern Raihvay Company, — Action for £30 14s. 6d. for damage to furnitm-e sent from London to Dover unpacked. Plaintiff ax)plied to the Company for the rate, and inquired if the furniture jequired to be packed, 352 DAMAGE AND LOSS OF GOODS. wliicli could have been done for from £6 to £8. The rate was quoted, and Plaintiff was written that the furniture should be protected with matting or hay-bands, or something of the kind, to prevent it getting rubbed by the oscillation of the train. In face of this, Plaintiff ordered the Company to cart the furniture from Taylor's repository, where it was stored. At Taylor's, the carter was offered hay-bands to pack the furniture, but he declined to pack it. He loaded it into his van with straw, and it went forward to Dover, and on arrival there was found damaged. The case was first tried in the Southwark County Court, when the Judge non-suited Plaintiff. Plaintiff then appealed, when Baron Cleasby said — " No person is entitled to claim compensation from others for damage occasioned by his neglect to do something which it was his duty to do. Here the goods were delivered in a manifestly unsafe condition, and, as I have said before, Plaintiff chose to have them go in the condition they were in, and the damage was the consequence." Justice Field concmTed. Judgment for Company. — Tried in Court of Appeal, February 11, 1876. — From Laiv Times RepoHs, vol. 34, page 67. Loss BY Theft. {See also under " Declaration of Value") Case No. Latha/m v. Rutley (1823) 198 Case No. Kiu'erji Tulsidass v. O. I. P. (1878) 199 DIGEST. In Latham v. Rutley (i823) a parcel of bank notes was stolen out of a carrier's office in London, the door being left open. The contract proved was to carry and deliver safely (fire and robbery excepted). The carrier was held not liable. 198. Latham v. Rutleij. —Aciiow for the value of a parcel of bank notes to be carried by carrier's waggon, London to Dover. The contract proved was to can-y and deliver safely (fire and robbery excepted). The parcel was stolen out of the carrier's office in London, the door being left open. The Jmy found DAMAGE AND LOSS OF GOODS. 353 that the contract for the carriage was subject to the exception of fire and robbery, but that the loss was not by robbery within the meaning of that exception, and gave Plaintiff a verdict. On the appeal Chief Justice Abbott said — " The result of all the cases upon the subject is that if the carrier only limits his responsibility that need not be noticed in pleading, but if a stipulation be made that under certain circumstances he shall not be liable at all that must be stated. Now here it appeared that in either of two events the carrier was not to be responsible at all, and that exception was not stated in the declaration. The Plaintiff would have been non-suited but for the necessity of leaving it to the Jury to say what was the contract. The carrier is therefore entitled to have a non-suit entered now." Judgment in favour of carrrier. — Tried in Court of King's Bench, June 4, 1823. — From Barnewall and CresswelUs Re- ports, vol. 2, page 20. 1 9 9 ■ Kuverji Tulsidass v. Great Indian Peninsular Rail- way Company. — Action for the value of goods taken from the Company by robbers. On a reference from the Court of Small Causes, Bombay, it was held that the English common law rule under which common carriers are held Liable as insurers of goods against all risks except the acts of Grod and of the Queen's enemies is not now in force in India, and that in cases not met by the special provisions of the Acts relating to carriers by railway and common cari'iers the liability of such carriers for loss or damage to goods entrusted to them is that prescribed by sections 151 and 152 of the Indian Contract Act of 1872, as hereafter quoted. The facts of the case were as follows : — The PlaintiflPs goods were being carried in a train from Nangaum to Egutpoora. During the journey the train was plundered by robbers, and the Plaintiff's goods were stolen. In an action for the value of the goods, the Chief Judge of the Court of Small Causes, Bombay, prevented the Defendants' attorney from giving evidence to show that the robbers were not the servants of the Company, and that all reasonable precautious had been taken for the safety of the goods, the protection of the train, and the watching of the line ; but, treating the Company as insurers against all risks, decreed the suit in favour of the Plaintiff, 23 354 DAMAGE AND LOSS OF GOODS. referring, however, the following point for the decision of the High Court : " Can the Defendants, as bailees, defined in section 148 of the Indian Contract Act of 1872, rely on the provisions of section 152 of that Act as protecting them from liability in respect of goods carried by them for reward ? " Chief Justice Westropp, in delivering the Judgment of the High Court, said — " We are of opinion the Company are entitled to the benefit of section 152 of the Indian Contract Act." Sec. 151. — "In all cases of bailment the bailee is bound to take as much care of the goods balled to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality, and value as the goods bailed." Sec. 152. — " The bailee, in the absence of any special contract, is not responsible for the loss, destruction, or deterioration of the thing bailed, if he has taken the amount of care of it described in sec. 151." " Consequently, we must set aside the decree for the Plaintiff, and direct a new trial, at which the Company should be permitted to give evidence that the robbers of the Plaintiff's goods were not the servants or agents of the Company, and that the Company, by their servants and agents, took as much care of the goods as a man of ordinary prudence would, under similar circumstances, have taken of his own goods of the same bulk, quality, and value." — Tried in the High Court of Bombay, 1th December, 1878. — From Macpherson's Law of Indian Carriers. — Reported in 3 High Court Reports {Bombay), page 109. Damage by Eats and Mice. (See also under " Warehouseman.") Case No. White N. Ruinphrey (\M7) 200 DIOEST. In White V. Humphrey (i847) hops bad remained in carrier's warehouse thirteen months, it being intended that the carrier was at some time to carry them, and he did carry them, Maidstone to London. The hops were damaged by mice. Lord Denman, on appeal, held that as the carrier received the hops into his ware- house for the purpose of being carried for hire after- DAMAGE AND LOSS OF GOODS. 355 wards, he was not a gratuitous warehouseman, and was consequently liable for the damage. 200. White V. Humphrey. — Action for damage by mice to four tons hops. The hops were placed in the carrier's warehouse at Maidstone, and allowed to remain there free for thirteen months ; they were then conveyed by barge to London, where the usual freight was collected. It was understood the hops were to be stored free. The carrier pleaded an absence of gross carelessness, and that he was a gratuitous warehouseman. The Judge directed the Jury that the advan- tage of carrying the hops for hire might be considered as payment for storage, and that the carrier was not a gratuitous warehouseman. Verdict for Plaintiff. On appeal. Lord Den- man held that as he received the hops into his warehouse for the purpose of being carried for hire afterwards, he was not a gratuitous warehouseman. Verdict confirmed. — Tried in the Queen's Bench, 1847, 11 Q. B. Repoi-ts, page 43. Measure of Damages or Market Value. Sedgwick's Treatise, Extract Armory v. Belamirie (1791) Mercer v. Jones (1813) Gainsford v. Carroll (1824) Butler V. Basing (1827) ... Hadley v. Baxendale (1854) Fletcher v. Tayleur (1855) Davis V. L. ^ N. W. (1858) Smeed v. Foord (1859) Cage No. 201 202 203 3 137 204 160 205 Collardv.S.E. (1861) Rice V. Baxendale (1861) Anderson v. N. E. (1861) M'Cance v. L. ^ N. W. (186 1) O'Eanlon v. G. W. (1865) Born Y. Midland (IS72) Eindev. Liddell (1875) Irvine v. M. G. W. (1880) Case No. 206 207 438 740 208 255 209 209i DIGEST. Sedgwick's Treatise on the Measure of Damages, chapter 13, page 424. — " As a general rule, where goods are en- trusted to a carrier and they are not delivered according to the contract, the value of the goods, ivith interest thereon from the day when they should have been deli- vered, is the measure of the damages. But the question at once arises whether that value is to be computed at the place where delivered to the carrier, or at the place 356 DAMAGE AND LOSS OF GOODS. of destination. We have seen it said that in cases of illegal capture and of collision the actual damage sustained at the time and place of the injury fixes the measure of damages ; but in regard to carriers it seems to be well settled that the analogy of this rule does not hold good, and that the measure of damages is the value of the goods at the place of destination. This sometimes involves an inquiry into foreign markets, and will generally include the profits of the adventure, but it has been rightly held that nothing less will satisfy the contract. It is the value of the article at the place of delivery that the Plaintiff, relying on the carrier, has lost. It is that value which he would have received if the contract had been performed. If the goods have been transported by the carrier, he is entitled to deduct his freight ; but if he do not perform any part of the contract, then the difi*erence between the value of the article at the place of shipment and at the place of delivery furnishes the measure of damages, deducting in this case also the freight or price of the carriage. "Where the Plaintifi" complained, not of non- delivery, but of delay of arrival, and in consequence of the delay it became necessary to remove the goods to another place to sell them, it was considered that the expense of such removal was rightly recoverable (Black V. Baxendale). "In Smith V. Grijjith (3 Hill, 333, tried in New York) it was held — ' The damages should aff"ord the Plaintiff an adequate indemnity for the loss sustained at the time the injury happened. Assuming that there is no defect in the quality of the article, the fair test of its value, and consequently of the loss to the owner, is its price at the time in the market. The objection to the evidence offered is that it proposes to take into con- sideration the fluctuations of the market value long suhserjuent to the time when the injury happened, thereby making the measure of damage to depend on the acci- dental fall of prices at some future period, which mighl or might not occur, and, if it did, the loss might orj DAMAGE AND LOSS OF GOODS. 357 miglit not have fallen on the Plaintiff, as for aught the Court or Jury could know he may have parted with the property before its depreciation.' " In Armory v. Delamirie (i79i) a jewel, taken from a setting, was detained, and in respect to the measure of damages, Sir John Pratt, Chief Justice, directed the Jury that unless the Defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages, which they accordingly did. In Mercer v. Jones (isiS) Lord Ellenborough said — " In trover the rule is that the Plaintiff is entitled to damages equal to the value of the article converted at the time of the conversion. There is no reason why this rule should not be applied to bills of exchange. The damages, therefore, in this case must be calculated by the amount of the principal and interest due upon the bills of exchange at the time of the demand and refusal to deliver them." In Gahisford v. Carroll (1824) 50 bales of bacon, contracted to be sent from Waterford to London, were never sent by seller. The Court held — "That the Plaintiff had his money in his possession, and he might have purchased other bacon of the like quality the very day after the contract was broken, and if he has sustained any loss by neglecting to do so, it is his own fault." The Under-Sheriff ought to have told the Jury that the damages should be calculated according to the price of the bacon at or about the day when the goods ought to have been delivered. In Butler v. Basing (i827) Baron Garrow told the Jury — "With regard to the amount of the damages, in case a verdict passes for the Plaintiff, it is right that I should tell you that there is no distinct evidence of the contents of the box; however, I should recommend you not to pare down the amount of damages because the 358 DAMAGE AND LOSS OF GOODS. articles coDtairiod in it cannot be distinctly proved. . . . . It must be always impossible to give evidence of the precise contents of (their) boxes and portmanteaus." In Iladley v. Baxendale (i854) an iron shaft for a flour mill Avas delayed five days, Gloucester to Greenwich, and .£300 was claimed for profits, the miller having had to buy flour to supply his customers. Baron Alderson said — " When 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 such as may, fairly and reasonably considered, either arising naturally, i.e.^ according to the usual course of things, from such breach of con- tract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it." In Fletcher v. Tayleur (1855) Justice Willes said — " It certainly is very desirable that these matters should be based upon certain and intelligible principles, and that the measure of damages for the breach of a con- tract for the delivery of a chattel should be governed by a shnilar rule to that which prevails in the case of a breach of a contract for the payment of money. ISFo matter what the amount of inconvenience sustained by the Plaintiff*, in the case of non-payment of money the measure of damages is the interest of the money only ; and it might be a convenient rule if, as suggested by my Lord, the measure of damages in such a case as this was held, by analogy, to be the average profit made by the use of such a chattel." In Davis v. London and North Western (isss) pictures of the Sepoy rebellion and anatomical models in wax were detained at Sheffield from February to July for £1 3s. 6d. carriage, which it was afterwards found had been prepaid at Birmingham. The Company paid £15 into Court, and the Jury gave £4 per week, as the man's exhibition had been stopped. On appeal. Chief Baron Pollock said— " We are all of opinion that DAMAGE AND LOSS OF GOODS. 359 though it cannot be said that the £1 3s. carriage is the measure of damages — as he could have got the goods for £1 3s., which he did not choose to pay — the real damage is nothing more than that. We are certainly not of that opinion ; yet we think that, with reference to the nature of the entire case and the amount of the actual damage, the sum of £15 paid into Court is sufficient." In Smeed v. Foord (i859) wheat was damaged by wet from thunderstorm. A threshing machine not being sent according to contract was the cause. Lord Chief Justice Campbell — "On the 14th August the wheat might reasonably be expected to be ripe for threshing ; the Defendant knew that it was wanted for that purpose. Then was it not in the contemplation of the parties that if it was not delivered at that time damage by rain might ensue to the Plaintiff? I am of opinion the Plaintiff is entitled to recover for the damage by wet. In respect to compensation for the fall of market price of wheat, my opinion is quite different, because it could not have been foreseen by the parties that the market would fall. It was not in the contemplation of the parties at the time they made the contract, and was not the natural consequence of the breach of contract." In Collard v. South Eastern (isei) eight pockets of hops were damaged by wet. The Company paid the estimated loss by wet (£7 14s. 3d.) of 8 lbs. per pocket into Court. Plaintiff proved it took from October 29 to November 10 to thoroughly dry the hops, which, being marked by the Excise, he dare not unpack. During this time the market price fell to the extent of £65. Baron Martin, on appeal, said — "When brought to market (the hops), we find the market price fallen by £65. If that is not a direct, immediate, necessary, and essential consequence of the breach of contract by the Company, I cannot understand what is." Judgment against Company for £65. In Eice v. Baxendale (i86i) a truss of cloth, Leeds to 360 DAMAGE AND LOSS OF GOODS. Maidstone, never reached Maidstone, and consignee, a hawker, was kept at Maidstone from November 30 to December 22, and had no money to get fresh goods, and had to sell a horse to leave the town. The carrier ignored — Loss of sale, .£4 ; travelling expenses, .£3 ; loss of time for horse and cart, £11 ; and paid into Court £10 13s. 6d., the bare invoice price of the goods at Leeds, Chief Baron Pollock, on appeal, said — " We are of opinion the Plaintiff is entitled to more (than paid into Court.) The only principle that we lay down is that when goods are sent from A to B, and are lost, the party entitled to them is entitled to the value at B. It is clear that the goods are worth more at Maidstone than Leeds. Let the verdict be entered for Plaintiff for <£3." (See also Baron BramiveWs Judgment.) In M''Cance v. London and North Western (isei) horses declared of £10 value had been damaged from defective bottom of truck. The horses really cost £30 to £35 each. Baron Bramwell said — " I think the declaration of value of £10 per horse is part of the contract, and therefore it is open to the Company to set it up as affecting damages. Here is a man attempting to make a claim, to my mind, dishonest and contrary to his engagement, and unhappily, when he comes into the witness-box he is tempted to support it on oath by a statement not true (that declaration of value was not read over to him). He says — 'True, I have entered into a contract, but it is unreasonable, and by a little colouring of the case I can make the Railway Company liable.' " In Anderson v. North Eastern (i86i) a case of traveller's patterns were lost out of cloak room, and it took fifteen days to replace them. The Company was sued as irareliousemen for £57 for patterns, case, salary, and expenses. Chief Baron Pollock held the Company to be bailees (not exactly warehousemen), responsible for loss to the amount of the value, but there was no undertaking to be answerable beyond the value, except DAMAGE AND LOSS OF GOODS. 361 by special contract. Consequential damages are not recoverable. In O'Hanlon v. Great Western (1865) for a few days delay to a package of pilot cloth, £50, the alleged value of the goods, was claimed. The actual price by sender's invoice was <£20 10s. 9d. Justice Blackburn, on appeal, said — " The natural and fair measure of damages would be the value of the goods at the destination place at the time at which they ought to have been delivered. If, from the smallness of the place or the scarcity of the particular goods and other things there is no market price, the parties have not the means of settling what it would be." Justice Shee said — " The con- signee, within a reasonable time after the time at which the goods should have been delivered, is entitled to go and purchase similar goods at the place where the railway company or carrier contracted to deliver." In Horn v. Midland (i872) 4,595 pairs of military shoes which should have been delivered on the evening of February 3, but were not delivered until the morning of February 4. The contract time was February 3 ; hence the contract was broken, and the diiference in price between 2s. 9d. and 4s. claimed from the Com- pany. The Company paid £20 into Court, and the Court, on appeal, held that sufficient, as the Company at the time of accepting the goods were not informed of the extent of damage that Avould accrue by the delay over the 3rd February, In Hinde v. Liddell (1875) goods contracted to be supplied were not supplied by Defendant, and Plaintiff had to buy elsewhere at an increased price. It was held that this increased price was fairly recoverable from Defendant owing to his failure to supply the goods according to his contract. In Irvine v. Midland Great Western (1880) Plaintiff complained the Company offered him waggons to con- vey hay which would only carry 30 cwt., whereas he demanded waggons that would carry 4 tons. As the charge was 15s. per waggon, he found, on sending 362 DAMAGE AND LOSS OF GOODS. several tons, that he would suffer a serious loss, which would make his venture profitless. He therefore sold the hay at a loss, and it was not conveyed by railway. He claimed £226 loss. Baron Fitzgerald, on appeal, said the damages proved were not the natural conse- quences of the acts of the Company ; that they had supplied waggons fit to carry the hay, and that the Plaintiff should have used these waggons, and if any greater charge was made than that agreed on, the Plaintiff should have paid it and then sued the Com- pany for the difference ; and that he ought not by his acts to create a claim for himself. 201. Armory v. DelaTYiirie. — Action for value of a jewel. The Plaintiff, being a chimney-sweep's boy, found a jewel, and carried it to Defendant's shop (who was a goldsmith) to know what it was, and delivered it into the hands of the apprentice, who, under pretence of weighing it, took out the stones, and calling to the master to let him know it came to three half- pence, the master offered the boy the money, who refused to take it, and insisted to have the thing again, whereupon the apprentice delivered him back the socket without the stones. And now, in trover against the master, these points were ruled : — 1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover. 2. That the action will be against the master, who gives a credit to his apprentice, and is answerable for his neglect. 3. As to the value of the jewel, several of the trade were examined to prove what a jewel of the finest water, that would fit the socket, would be worth ; and the Chief Justice, Sir John Pratt, directed the Jury that unless the Defendant did produce the jewel, and show it not to be of the finest water, they should j presume the strongest against him, and make the value of the best jewels the measure of their damages, which they accord- ingly did.— Tried in CouH of King's Bench, Hilary TermA 1791.— From Sir John Strangers Reports, vol. 1, page 505 '\ also Smith's Leading Cases, vol. I, page 357. DAMAGE AND LOSS OF GOODS. 363 202 • Mercer v. JoTies. — Action as to how the damages should be calculated in respect to some bills of exchange. Lord Ellenborough said — " In trover the rule is that the Plain- tiff is entitled to damages equal to the value of the article con- verted at the time of the conversion. There is no reason why this rule should not be applied to bills of exchange. The damages, therefore, in this case must be calculated by the amount of the principal and interest due upon the bills of exchange at the time of the demand and refusal to deliver them." — Tried in Court of Nisi Priusy December 20, 1813. — From GampbeWs Reports, vol. 3, page 477. 203* Gainsford v. Garroll. — Action for the non-perfor- mance of a contract to supply 50 bales of bacon, to be sent from Waterford to London. The Com't held — " That the Plaintiff had his money in his possession, and he might have purchased other bacon of the like quahty the very day after the contract was broken, and if he has sustained any loss by neglecting to do so it is his ovra fault. We think that the Under-Sheriff ought to have told the Jury that the damages should be calculated according to the price of the bacon at or about the day when the goods ought to have been delivered." — Tried in GouH of King's Bench, Feb. 12, 1824. — From Barnewall and GressivelUs RepoHs, vol. 2, page 624. 204-. Fletcher v. Tayleur. — In the action Fletcher v. Tayleur Justice Willes said, in respect to measure of damages — " It certainly is very desirable that these matters should be based upon certain and intelligible principles, and that the measure of damages for the breach of a contract for the delivery of a chattel should be governed by a similar rule to that which prevails in 'the case of a breach of a contract for the payment of money. No matter what the amount of inconvenience sustained by the Plaintiff, in the case of non-payment of money the measure of damages is the interest of the money only ; and it might be a convenient rule if, as suggested by my Lord, the measure of damages in such a case as this was held, by analogy, to be the average profit made by the use of such a chattel." — Tried in Gourt of Gommon Pleas, Nov. ,2, 1855. — From Scott's Common Bench Reports, vol. 17, page 27. 364 DAMAGE AND LOSS OF GOODS. 205. Smeed v. Foord. — Action for damage by wet to wheat, arising from a thunderstorm, and owing to the omission of Defendant in supplying a threshing machine, which, if supplied according to contract, the wheat would have been threshed and the damage obviated. Lord Chief Justice Campbell said, in respect to the measure of damages — "There was an express contract to deliver the threshing engine on 14th August, but it was not delivered till long afterwards. The Defendant led Plaintiff on from time to time to suppose that the engine ordered would be supplied ; hence there was no default on the part of Plaintiff in not hiring another engine. The rule in this case is to be taken from the case of Hadley v. Baxendale, which accords with the Code of Napoleon, with Pothier, and with Chancellor Kent, and which decides that the Plaintiff is entitled to receive as a compensa- tion such damages as are the natural consequences of the breach of contract, or such as may reasonably be supposed to have been in the contemplation of the parties. I do not say how far this rule applies to the circumstances of that case, but it is an abstract rule of law which I agree with. I say that the Plaintiff is entitled to substantial damages ; for this is not like the case of a horse intended to run a race, which was sent by railway and was not delivered in time, so that he lost the chance of winning the race ; nor like the case of a pig which might have won the prize ; nor like the other case, put by Lord Ellenborough, of a man travelling who was delayed on his journey by the coach breaking down, per quod he lost his lieutenancy. On the 14th August the wheat might reasonably be expected to be ripe for threshing ; the Defendant knew that it was wanted for that purpose. Then was it not in the con- templation of the parties that if it was not delivered at that time damage by rain might ensue to the Plaintifi*? I am of opinion Plaintiff is entitled to recover for the damage by wet. In respect to compensation for the fall of the market price of wheat, my opinion is quite different, because it could not have been foreseen by the parties that the markets would fall. It was not in the contemplation of the parties at the time they made the contract, and was not the natural consequence of the breach of contract." Judgment for Plaintiff for £300.— Tried I DAMAGE AND LOSS OF GOODS. 365 in CouH of Queen^s Bench, January 31, 1859. — From Law Journal Reports, vol. 28, page 178. 206. Collard v. South Eastern Railway Company. — Action for £90 14s. 3d. for damage and fall of market on eight pockets of hops, Pluckley to London. The details of the claim are £7 14s. 3d. for 8 lbs. hops in each pocket damaged by wet, £18 for diminished selling value by depreciation, and £65 for fall in market price from £18 to £9 per cwt. The hops were delivered to the Company on October 20, but consignee did not receive them from the Company until October 29, and then partially stained from lying in a wet truck. It took Plaintiff from October 29 to November 10 to dry the hops fit for sale. The bags are marked by the Excise with the weight, and the hops could not be transferred. For the actual use of a brewer, except the 8 lbs. (estimated) in each pocket, they were as good as ever. The stained condition and evidence of drying made them less saleable. The case was tried at the Maidstone Spring Assizes, and the Jm-y gave a verdict for the £18 and the £65. The £7 14s. 3d. had aheady been paid into Court. The Judge granted leave to appeal as to the £65. On the appeal case Baron Martin said — " We are of opinion the rule (to enter verdict for Company) must be discharged. We are to assume that by reason of the contract being broken by the Company these hops could not be brought into the market until a certain day. When brought to market, we find the market price had fallen by an amount of £65. If that is not a direct, immediate, necessary, and essential consequence of the breach of contract by the Company, I cannot understand what is. I think the Jury had a right to assume the Company had notice that the hops were being sent to London to be sold for profit. I think the case oi Smeed y. Foard [28 Law Journal Keports, 178, Q.B.) does not apply to this case. In my judgment the Plaintiff is entitled to these damages as the immediate and direct loss sustained by him upon a breach of contract by the Company." Baron Channell concurred, and said the case of Hadley v. Baxendale did not apply to this case. " Here the hops were delivered in a damaged condition, and I agree in the statement that there is no difference between their being delivered in a 366 DAMAGE AND LOSS OF GOODS. damaged condition, for the pm-pose of this inquiry, and their having been kept in the Company's own premises, as it is precisely the same as if they had been in the Company's possession and not the Plaintiff's." Verdict against Company. —Tried in CouH of Exchequer, May 24, 1861. — Hurlstone and Norman's Reports, vol. 7, page 79; and Law Journal Reports, vol. 30, page 393. 207. -S^ce V. Baxendale (Pickford & Co.) — Action for £28 13s. 6d. for value and damages owing to the loss of a truss of cloth, Leeds to Maidstone, as follows : — £. s. d. Black union cloth, 45 yards at 3 s. 6d 717 6 Blue pilot cloth, 16 yards at 3s. 6d 216 Value of the goods at Maidstone, Is. 6d. per yard, £4 14s. 6d., which is hereby claimed if Plaintiff has no right to the hereinafter mentioned — For loss of sale of above 4 Travelling expenses 3 Loss of time of Plaintiffs horse and cart from 30th November to 22nd December, 1860, at 10s. per day ••• 11 £28 13 6 The Defendants received the truss at Leeds on 27th November, 1860, but it never reached Maidstone. Plaintiff ordered from sender a fresh supply of goods, but being unable to send the money in advance, as done before, the sender refused to re-supply the goods. Plaintiff was a licensed hawker, and waited for the goods at Maidstone with his horse and cart from November 30 to December 22. The price claimed was sender's invoice price. Plaintiffs had to sell a horse at Maidstone to pay their expenses and to get away. The Defendants paid into Court £10 13s. 6d., the invoice price of the goods. The case was first tried in the Sheriff's Court, London. The Judge found — (1.) That the money paid into Court was equal to the value of the goods when delivered to the Defendants, and that the DAMAGE AND LOSS OF GOODS. 367 Defendants had no notice of what use the Plaintiffs intended to make of the goods at Maidstone or elsewhere. (2.) That the Plaintiffs could not have procured goods of a like quality or description at Maidstone at the time the goods ought to have been delivered by the Defendants at a price less than £4 14s. 6d. beyond the sum paid into Court. (3.) That the Plaintiffs, if they had had cash, might have procured another parcel from the manufacturers at the same price, and the damages to the Plaintiffs beyond the invoice price in respect of delay would amount to £3, and no more. (4.) That the Plaintiffs had, in fact, suffered to the extent of the damages claimed, but it arose from their want of means. The Judge gave a verdict, by consent, for Defendants, with leave to appeal. He ruled the amounts were not losses either arising naturally fr-om the breach of duty relied upon, or such as the parties at the time the goods were delivered contemplated. On the appeal to Court of Exchequer, Chief Baron Pollock said — " We are of opinion the Plaintiff is entitled to more (than paid into Court). The only principle that we lay down is that when goods are sent from A. to B., and are lost, the party entitled to them is entitled to the value at B. It is clear the goods are worth more at Maidstone than at Leeds. Let the verdict for Plaintiff be entered at £3." Baron Bramwell said — " I agree that the Plaintiff is entitled to the value of the goods to him at the place of consignment, with this qualification — that the value at that place is the sum at which the goods could be got to that place, not the value at the place ; and, strictly speaking, on the finding in this case I think our Judgment should be for the Defendants. It is due to the learned Deputy Judge to say that the case is very carefully stated. He finds that the amount paid into Court was equal to the value of the goods when deli- vered to the Defendants ; and if that is to be taken as the finding of the value at Maidstone, the Defendants, in my opinion, would be entitled to our Judgment ; but I think that if the Judge's attention had been called to this particular point, he would have said that the value to the Plaintiff at Maidstone would, in law, be something more than the value at the place of delivery at Leeds. I therefore accede to our Judgment 368 DAMAGE AND LOSS OF GOODS. being for the Appellant." Verdict, £3 for Plaintifif. — Tried in Court of Exchequer, May 27, 1861. — From Law Journal He- ports, vol. 30, page 371. 208f O'Hanlon v. Great Western Raihvay Company. — Action for £50 for a package of pilot cloth lost in transit, Leeds to Neath. The bale was delivered at Leeds, November 6, 1864, and consignee, a travelling hawker, on application at Neath a few days after, could not get the cloth. His attorney demanded £25, and the action was commenced 21st January following. It appeared Plaintiff paid £20 for the cloth, but the sender's invoice was £20 10s. 9d., the odd money being allowed as discount. The Company paid into Court the even sum of £22 on March 4, made up of (1) £20 10s. 9d.; (2) interest, about 10 per cent., on that sum for four months, £1 7s. 4d. ; (3) carriage, 5s. The case was first tried at the Glamorganshire Spring Assizes before Justice Blackburn. The Plaintiff said he could not have bought similar goods in Neath under £2o. The Judge left it to the Jury to say the value of the goods at Neath, where they ought to have been delivered, which would be something more than the cost at Leeds (and the carriage, not, however, paid in this case) ; but he left it to the Jury, as men of sense, how much more, including interest, which might be given up to the 4th March, when the plea was pleaded. The Jury found for £3 over the £22 paid into Com-t. The Company appealed, and on the appeal case Justice Blackburn said — " The natural and fair measure of damages would be the value of the goods at the destination place at the time at which they ought to have been delivered. If, from the smallness of the place or the scarcity of the particular goods and other things, there is no market price, the parties have not the means of settling what it would be. The real value would have to be ascertained, as a matter of fact, by the Jury. I think the Jury, in finding £25 damages, were very liberal in doing so, but I cannot say they were wrong." Justice Mellor concurred. Justice Shee said — " The consignee, within a reasonable time after the time at which the goods should have been delivered, is entitled to go and purchase similar goods at the place where the railway company or carrier contracted to dehver. If the place at which the goods ought to have been delivered is a place DAMAGE AND LOSS OF GOODS. 369 where there is plenty of such commodities, but none except charged with a profit beyond their prime cost and the cost of their carriage, then the damage he sustains is this higher profit cost to him, though this price be more than the price at which the goods would have stood to him if they had been received at the proper place and time." Verdict against Company, damages not being reduced. — Tried in CouH of Queen's Bench, May 13, 1865. — From Laiu Journal RejpoHs, vol. 34, page 154. 209i Hinde v. Liddell. — Action for breach of contract, illustrating the measure of damages. The Defendant, Liddell, contracted to supply Plaintiff, Hinde, with 2,000 pieces of gray shirtings, to be deUvered on the 20th October, at a fixed price, the Defendant being informed that they were for shipment. Shortly before the 20th October, the Defendant informed Plaintiff that he would be unable to complete his contract by the time specified, on which Plaintiff endeavoured to get the shirtings elsewhere ; but there being no market in England for it, that kind of shirtings could only be procured by a previous order to manufacture it. Hinde himself, having made a contract to supply the shirtings, procured 2,000 pieces of a superior quality at an increased price, which his purchaser accepted. Hinde therefore sought to recover against Defendant, for the breach of his contract, the difference he paid for the substituted shirtings and the Defendant's contract price. It was admitted at the trial that the shirtings which the Plaintiff bought were the nearest in price and quality that could be got by the 20th October. On the first trial. Plaintiff obtained a verdict for £137 10s., which was subsequently affirmed on the appeal case, when Justice Field said — " The Jury gave a verdict for £137 10s., the difference between the contract price and the price that Plaintiff had paid for other shirtings. As soon as the Defendant told Plaintiff that he could not complete his contract, the Plaintiff did the best he could to find cloth of the same de- scription. He wa*s unable to do so, but he did find a number of pieces of another kind which was the nearest approach in kind and quality to be got. The Plaintiff bona fide paid the increased price, which he did not and could not have recovered 24 370 DAMAGE AND LOSS OF GOODS. from his vendee. It follows that he was entitled to recover this difference in price as the damages which were the natural consequence of the Defendant's breach of contract, and were what must have been in the contemplation of the parties when they made the contract. It is to be observed that the Defend- ant was told that the shirtings were for shipment, and even without this the description of the article was such as made it known that it was not for wear in this country, but for export to a foreign merchant. The Defendant not supplying the cloth at the given day, the Plaintiff was entitled to get the best substitute he could. If he had derived any benefit from the advance in price, I should hesitate before I said he could recover the whole of the difference, but he derived no benefit whatever beyond being able to complete his contract with his vendee upon the original terms upon which he had contracted." — Tried in the Court of Queen's Beiich, April 21, 1875. — From Laiv Reports, Queen's Bench, vol. 10, page 265. 2092. I'>'vine V. Midland Great Western Raihvay Com- pany. — This case, which was argued December, 1879, came before the Court for Judgment, January, 1880. It was an action brought by the Plaintiff, residing in the county of Galway, against the Defendants to recover damages, laid at £226, for breach of contract in not carrying a large quantity of hay, the property of the Plaintiff, from Woodlawn to Gralway, in the month of March. The Plaintiff, it appeared, had pur- chased the hay for the purpose of selling it in the town of Galway, and had made an agreement with Defendants to have it carried in large waggons, capable of conveying four tons of hay, at 15s. per waggon, and he sent several tons to the rail- way station at Woodlawn to be carried to Galway. On its arrival at Woodlawn the Plaintiff found that the waggons which the Defendants had provided were the ordinary covered goods waggons, and would only convey 30 cwt. per waggon, which was not what he intended and supposed they would have supplied, viz., waggons of a very much larger size, and in which he as- serted he had seen hay conveyed along the Defendants' line. To send on all the hay by these waggons would have increased the cost of carriage to Galway so much that the Plaintiff would DA>LA.GE AND LOSS OF GOODS. 371 have lost by his speculation, and he refused to use them, and in the end he was obliged to sell the hay at different places and for much smaller prices than he could have got had he been able to sell in Gralway. The case was tried at the last Assizes for the County of Gralway. The Defendants pleaded payment of £10 into Court. The trial resulted in a verdict for the Plaintiff for £135, Justice Harrison, who tried the case, resenting certain questions for the decision of the Divisional Court. Baron Fitzgerald now delivered the Judgment of the Court, holding that the damages proved were not the natural conse- quences of the acts of the Defendants ; that they had supplied waggons fit to carry the hay, and that the Plaintiff should have used these waggons, and if any greater charge was made than that agreed on the Plaintiff should have paid it, and then sued the Defendants for the difference ; and that he ought not by his acts to create a claim for himself. The verdict for the Plaintiff must be set aside and entered for Defendants, and the Plaintiff must pay all the costs. — Tried in CouH of Ex- chequer (Ireland), January 28, 1880. — RepoHed in Irish Reports, vol. 6, page 55. 372 COMPLETION OF CONTRACT. DELIVERY OF GOODS. GENERAL. (See also " Stoppage in Transitu " where the question of Delivery arises collaterally.) Case Case No. No. 5co« V. Pe«t7 (1803) 122 Rookey. Midland {l%i2) 210 Boive\.Pickford0.iin) 124 Giles T. Taff Vale (1853) 211 Allany.Gripper{\iZ2) 126 Cooper V. London and South Gilbert \. Dak {\9,Z&) 31 Western (1858) 269 DIGEST. In Scott V. Peitit (isos) Defendant was a "packer " in London, and goods sent to consignee were addressed to the " Bull and Mouth " Inn. There was a standing order for such goods to be thence delivered to Pettit's house. Consignee became an absconding bankrupt, and his assignee (Scott) claimed the value of the goods, which Pettit had delivered to sender. Lord Alvanley held the transitus had ended at Pettit's house, and the assignee could recover. In Bowe v. Pichford (i8i7) goods arrived in London from Manchester, and consignee was advised. He became a bankrupt, and did not remove the goods. It was consignee's practice to allow the goods to remain in the carrier's warehouse until he shipped them to the Continent. Sender gave notice to carrier of stoppage m transitu. Held by Justice Chambre — That the transitus had ended, and the bankrupt's assignee could recover the value of the goods. Thus, constructive delivery had been made and the contract of carriage ended. In Allan v. Griijjier (1832) oil cake was carried by canal, Twickenham to Hertford, and before Allan (sender) gave DELIVERY OF GOODS. 373 notice of stoppage in transitu the cake had been unloaded into the carrier's (Gripper's) warehouse at Hertford on account of Pestall, the consignee. Pestall used the carrier's warehouse as a store for his cake, sometimes for months at a time, and sold the cake from the warehouse. Lord Lyndhurst held that the transitus of the cake was at an end when in the ware- house, which amounted to delivery and the ending of the contract of carriage. In Rooke v. Midland (i852) the Ambergate Nottingham and Boston Railway, whose station was then five miles from Nottingham, sent some waggons of timber on to the Midland Company's station at Nottingham. The Midland Company refused to accept and deal with the traffic, and refused to give consignee the timber, requiring that it should be sent back to the Ambergate Company's station. Justice Erie gave Judgment against the Company, holding that they could not with- hold delivery from consignee. In Giles v. Taff Vale (1853) the Company refused to give up certain " quicks " that had been planted to be kept alive at two of their stations. It Avas not quite clear whether these quicks were held by the Company as carriers, or whether they were the residue of stock left by a contractor who had planted quicks along the line to form hedges. The importance of the case is that it was held that the Company's superintendent (Fisher) was the legal representative of the Company, binding the Company by his acts and his refusal to give up the quicks. i^See case.) In Cooper v. London and South Western (isss) it was held, in the Court of Common Pleas, that a railway company unloading "station to station" goods for delivery for one person can be required to do so or all persons, or it would constitute undue preference 21 0, Rooke V. Midland Railway. — Action in respect to the detention of a quantity of timber, Hull to Nottingham. It appeared the timber in question had been forwarded to Notting- 374 DELIVERY OF GOODS. ham, which is situated on the Midland Eailway, and without the consent of that Company. The Midland Company main- tained that the timber should have been taken to a station on the Ambergate Nottingham Boston and Eastern Junction Kail- way Company, situated a distance of five miles from the Defendants' station at Nottingham. JNIr. John Ashworth, the manager of the Midland Eailway Company at Nottingham, gave notice to the secretary of the Ambergate Line to remove the timber from the station of his Company at Nottingham, which, however, was not done. In the meantime the consignee, a joiner, insisted upon having the timber, and tendered the car- riage for same, but the timber was not delivered. Justice Erie said — " When the goods arrived at Nottingham the Plaintiff was entitled to have the goods delivered to him. He demanded them, and they were refused. This was a conversion, unless the Defendants can justify their refusal. They say — 'The goods were brought to our station by the Ambergate Railway Company, an intermediate line which has no right to send such goods to om* station,' and they therefore insist that the Ambergate Railway should take them back to the station which belongs to that Company. The Plaintiff clearly has a right to have his goods, though brought by mistake or without right on the Defendants' premises, upon his paying any charges they may have against them in respect of them." Judgment against the Company. — Tried in the Court of Common Pleas, December 1, 1852. — F7vm the Jurist, vol. 16, page 1069. 211. Giles V. Taff Vale Raihuay Company. — Action for the value of a quantity of fencing quicks that, to keep alive, had been planted on the Company's ground at Aberaman Station and Navigation Station. It was only the 90,000 quicks at Aberaman Station, valued at £40, that were in dispute ; but the Company refused to allow either lot to be removed. It appeared Plaintiff, who was a sub-contractor, had purchased the quicks from Jones, the contractor ; and these quicks were said to be an overplus from a large quantity that had been used for fencing the railway. The Company's superintendent believed that the quicks belonged to the Company, and at some DELIVERY OF GOODS. 375 previous time had been paid for by the Company, but, of course, the identification was the diflSculty. Plaintiff obtained a verdict in the Court of Queen's Bench, when appeal was taken to the Exchequer Chamber. Chief Justice Jervis said — " I am of opinion the Judgment of the Queen's Bench must be affirmed. It seems agreed by us all that if those goods (the Navigation Station lot) were carried by the Defendants, and left with them in the ordinary course of their business as carriers, the demand and refusal from the superintendent on the spot would be sufficient evidence in support of this action (for conversion) against the Company. But it is said because the goods were not in the custody of the Company in . the ordinary course (as carriers) there was not sufficient evidence of Fisher's (superintendent's) authority. I am of opinion that it is the duty of the Company carrying on a business to have upon the spot some one with authority to deal on behalf of the Company with all cases arising in the course of their traffic as the exigency of the case may demand ; and I think it was a question for the Jury whether Fisher, in this case, was a person having such authority. If he was, I think he had authority in the exigency of the traffic to keep the quicks in the mode in which they were kept, and that, con- sequently, they were in the custody of the Company in the course of their ordinary business. I am therefore of opinion that it was a case for the Jury, and that there should be no venire de novo" The other Judges concurred generally. The Court unanimously held — That it is the duty of a Company carrying on trade to have on the sj)ot an officer with authority to do for the Company all that in the ordinary exigencies of their business might require to be done promptly; that in this respect there is no difference between an ordinary partnership and a corporation ; that there was sufficient evidence that Fisher had authority to this extent from the Company ; and that it was not necessary to show any authority under seal. Judgment against Company. — Tried in CouH of Exchequer Chamber, Nov. 10, 1853. — From Ellis and Blackbuim's Rejporta, vol. 2, ivirje 822. 376 DELIVERY OF GOODS. What Constitutes a Tender or Delivery of the GtOODS to Consignee — Constructive Delivery. Scott V. Fettit (1803) ... Strong v. Natally (1804) Eowe v.Pichford (1817) 8torr\. Crowley (1825) Allan V. Gripper (1832) Caee No. 122 215 124 226 126 L. Sf N. W. V. Barilett (1861) ... Coventry v. Qladstone (1 868) ... Pollard V. L. ^ S. W. (1870) ... Bradshaw v. I. N. W. (1873) ... Re M'Laren, ex parte Cooper (1879) Caee So. 232 118 212 213 120 DiaEST. In Storr v. Crowley (i825) a legal tender had been made, but it was held to have been revoked by carrier's porter subsequently agreeing to make a second delivery of the goods. In London and North Western v. BartJett (I86I) it was held "constructive delivery" had taken place when the carrier had advised consignee of the arrival of the wheat at the railway station, that being the special usage and course of business between the consignee and the carrier, at consignee's written request. In Coventry v. Gladstone (I868) linseed shipped from Smyrna to London was mortgaged before arrival. Before the ship arrived consignee became bankrupt, and the mortgagees, on the arrival of the ship, obtained a delivery order for the linseed, and handed it to an officer on board the ship, who promised to deliver to them the linseed when he got it clear. The Court held that this did not amount to a constructive delivery, and sender's right of stoppage in transitu remained. ^ In Pollard v. London and South Western (I870) con- signee's wife accepted the cask of wine, paid charges, and gave the carter a note — " Mr. Pollard has received the wine safely, and requests it may be delivered at the stables," 1,000 yards from Mr. Pollard's house. In unloading the cask the carter's rope gave way, and the cask fell and burst. Justice Hannen told the Jury the contract Avas to deliver to Mr. Pollard's house, and DELIVERY OF GOODS. 377 Mrs. Pollard waived delivery at that place, to which sender had ordered the cask. Verdict for Company. In Bradshaio v. /. N. W. (1873) consignee took away one cart-load of the coal, and refused the remainder because it had been (in the meantime) unloaded in a dirty place. Justice Keogh held that due delivery of the coal had been established. In Re M'-Laren^ ex ^;arfe Coojier (i879) 114 tons of castings were sent by ship from Scotland to London, consigned to M'Laren. Thirty tons had been un- loaded when M'Laren, who was in Scotland, tele- graphed to stop unloading any more. M'Laren went into liquidation. In the Court of Appeal, Lord Justice Brett held — "Part delivery of a cargo or of the bulk of the goods is not prima facie delivery of the whole," and that the transitus of the remainder of the castings had not ended ; that the fact that M'Laren was a partner in the Scotch firm (senders) made no difference. 212. Pollard V. London and South Western Baihvay Company. — Action for a cask of wine which burst from a fall in unloading from delivery cart. The cask came from South- ampton, and the carter took it to the garden gate of consignee's house, 1, Brompton Square. Consignee was out; his wife paid the charges, and gave the carter a note as follows : — " Mr. Pollard has received the wine safely, and requests it may be delivered at the mews (his stables), Turkish Baths, Alfred Place," about 1,000 yards from consignee's house. The carter got 4d. gratuity. There was no ladder with the waggon for unloading heavy goods, and the carter attached a rope to the cask, and fastened it to the cart wheel. The rope got fast ; the carter, being in a rage, as a witness said, in consequence of the smallness of the gratuity he had received, gave the cask a kick ; the rope gave way, and the cask fell on the ground and burst. Justice Hannen, in summing up, told the Jury — " The contract was to deliver at 1, Brompton Square. Mrs. Pollard waived delivery at that place, to which the Plaintiff had ordered 378 DELIVERY OF GOODS. the cask. It was to be taken elsewhere for 'Mrs. Pollard's con- venience, and in no way had it been suggested that the Com- pany was to have been benefited by the alteration in the place of delivery. Now for the accident which afterwards occmred the Company could only be held liable in one of two ways — either it must have been within the scope of the carman's duty to substitute another place of delivery for that agreed upon by his employers, or it must have been within the scope of his authority to enter into a fresh contract of carriage on behalf of his employers. Although he left the matter to the Jmy, he could see no evidence of any authority to the cai'man either to substitute a place of delivery or to enter into a fresh contract of carriage." Jiu-y foimd in favour of the Company. — Tried in CouH of Queens Bench, June 3, 1870. — From Law Times Reports, vol. 22, page 551. 213, Bradshaw v. Irish Xoiih Western Bail way Com- pany. — Action for £54: for 67 tons smithy coal, Dundalk to Enniskillen. Tlie coal, in 17 waggons, arrived at Enniskillen, and on the 28th June, 1865, consignee was duly advised of the arrival, and requested to unload the waggons and remove the coal. The carriage was paid. Consignee's man, M'Gee, cai'ted away one and a half cart-loads of the coal, and wished the trucks put on a siding next the store of Plaintiff. This was done. Consignee, however, never removed any more of the coal, and, after notice, the Company unloaded the trucks in a dirty place on side of railway, and the coal remained there for several years, until they dwindled away, and the Company ultimately sold the residue for £8, which was placed to con- signee's credit. The case was first tried before Justice Morris, Trinity Term, 1872, when a verdict was given against the Company for £54. The Company appealed, and on the appeal case Judge Keogh said— " Plaintiff admits he was called on to take away the coals, and that on other occasions he had done so. He also admitted that he received the order to remove them. There is no coimt in trover, so the Plaint ifi" cannot recover against the Company as common bailees or as warehousemen for injury which the goods might have sustained. The question is— Did DELIVERY OF GOODS. 379 they discharge their duty as common carriers ? Did the notice amount to a delivery of goods ? Was there no further liabiUty ? Their liability ceased the moment they gave notice. The con- signee was bound to remove the goods in a reasonable time. This case is the same as Shepherd v. Bristol and Exeter. Can it be said that in this case consignee had no opportunity to remove the coal ? The Plaintiff leaves his goods there after he gets notice." Judgment for Company. — Tried in Court of Coramon Fleas (Ireland), April 30, 1873. — From Weekly Repjorter, vol. 21 , page 581. Place wisere Delivery should be jVIade — House, Warehouse, OR Wharf. Case Case Ko. No. Youl Y. Barbottle (nn) ... .. 235 Duff y. Budd {1^22) 218 Hyde V. Trent N. Co. (1793) ... 214 Quic/gan r. Duff {1S3G) 26 Scott Y. Pettit (^1803) .. 122 Cairns V. Robins (ISil) 219 Strong v. Natally (1804) ... .. 215 Bourne v. Gatliffe (1844) 220 Bodenham v. Bennett (1817) .. 216 FowlesT. G. IF. (1852) 9 Birkett v. Willan (1819) ... .. 217 Evershed v. L. ^ N. W. (1877) 328 dig: EST. In Yoid V. Harhoitle (i79i) the carrier delivered the goods to the vi^rong person. Lord Kenyon held — " I agree that when a carrier loses goods by accident, trover (conversion) will not lie against him ; but when he delivers them to a third person this species of action may be maintained." In Hyde v. Trent JSf. Co. (i793) eighteen bales of cotton were burned in the Manchester Canal warehouse the same night as unloaded from boat. The Canal Company had accepted at the starting point (Gains- borough) the freight, and also a sum for cartage in Manchester. The Company gave the cartage to a carting agent, and paid him, but denied acceptance of a through contract to deliver beyond their ware- house in Manchester. Chief Justice Lord Kenyon held ■ — That the cotton, when burnt, was in the Company's 380 DELIVERY OF GOODS. hands as common carriers, and not as warehousemen, and that they were responsible for the through delivery to consignee's warehouse. In Scott V. Pettit (isos) Defendant was a " packer " in London, and goods sent to consignee were addressed to the " Bull and Mouth " Inn. There was a standing order for such goods to he thence delivered to Pettit' s house. Lord Alvanley held the transitus (delivery) had ended at Pettit's house, and the assignee of the consio;nee could recover. In Strong v. Natally (i804) a quantity of fish sank in a lighter at Plaintiff's wharf, where delivery had been tendered. The condition of carriage was " until the cargo shall be discharged and safely landed." From rough weather the lighterman could not dis- charge the cargo that afternoon, and he offered to stay and see the cargo landed. Consignee said he need not do so, for he would look to the landing himself Justice Heath, on appeal, held — "Every party may renounce so much of a contract as is for his own benefit. Now in this case the Plaintiff, by his conduct, has renounced all the benefit which would have accrued to him from the words of the contract upon which he relies," _ In Bodenham v. Bennett (i8i7) a banker's parcel, * containing £347, was lost. Baron Wood held — " The carrier does not merely engage safely to carry and convey, but he also engages safely to deliver." He held the carrier liable for gross negligence. In Birketi v. Willan (i8i9) a box of cochineal, addressed " J. Worthy, Exeter," had been ordered from sender, and obtained from carrier by a swindler. Chief Justice Abbott left it to the Jury if there had been any want of care in the carrier delivering the box to the person who came for it. If a parcel was directed to a person generally, in such a place as Exeter, without specifying his place of abode, the carrier was not bound to carry that parcel to any place, but he would fully discharge his duty Ijy delivering it at his office to any person coming from the person to whoin it was directed, or DELIVERY OF GOODS. 381 whom he might reasonably suppose to come from that person. On appeal, however, the same Judge granted a new trial, on the decision of Bodenham v. Bennett being pressed. In Duff V. Budd (1822) a parcel of silk goods had been sent from London to Oxford, addressed to a respectable shopkeeper (who never ordered the goods), by the fraudulent representations of a swindler. The carrier, whose practice was to deliver the goods to con- signee's shops, delivered this parcel to a stranger who applied for the parcel at the carrier's warehouse. Lord Chief Justice Dallas said — " If this were not negligence there would be an end of carriage for hire, for who would be safe if a carrier might deliver a parcel to a person of whom he is altogether ignorant, and whose residence is unknown to him, when he must have well known the person to whom it was directed, not only by name but by residence ? He should at all events have been satisfied whether it was to be delivered to Mr. Parker in the High Street or not before he gave it to a third person " (named Parker). In Quiggan v. Diff (i836) two boxes type arrived at the Bridgewater Duke's AVharf, Liverpool, of which Duff, consignee, was duly advised by notice. Duif objected to the carrier (Ken worthy) delivering his goods from the wharf, and it was established that this was the course of dealing between the two. Chief Baron Abinger held it was a question for a Jury, and there must be a new trial. In Cairns v. Robins (i84i) two packages of goods Avere delivered to consignee, and he sent them back to the carrier's warehouse to be taken care of When re- quired twelve months afterwards they could not be found. Carrier made no charge for warehouse rent, and his notice set forth he would not be responsible for goods left on hand beyond three months. Carrier's servant, in evidence, said the carriage of the goods was a sufficient remuneration for warehouse rent. Baron Alderson held the carrier liable as a warehouseman. 382 DELIVERY OF GOODS. In Bourne v. Gatliffe (1844) cases of linens from Belfast were landed from a steamer at Fenning's Wharf, London, and the same night the warehouse and goods were destroyed by fire. It was proved that the prac- tice was for such goods to be delivered to consignee's place of business at Ironmonger Lane, City, and that consequently the carrier held the goods as a carrier, and not as a warehouseman. Judgment against carrier. In Foivks V. Gi^eat Western (1852) a case of glass was broken when being unloaded at Brompton at con- signee's door, carried by the Company, Bristol to Paddington. The Company included the cost of delivery in their rate, and appointed a carrier (Sher- man) to deliver, Paddington to Brompton. On the receipt note, under the head of "To what Station," the word "Paddington " was written. The address, " Montpelier Row, Brompton," was in pencil. Baron Parke held that the Company's conditions of carriage limited their contract to Paddington Station only, and that the words in pencil were a mere memorandum of the address of the person, and not an alteration of the contract. In EversJied v. London and North Western (i877) Lord Justice Brett said — " The Company may receive the goods at the edge of the railway, or they may receive elsewhere, but still they have to receive the goods in all cases in which they carry. During the whole time while they have the goods in their possession for con- veyance they are carriers, and they charge as such. Sometimes they do not receive the goods at the edge of the railway, but they receive them at receiving houses, or, as is the case here, at the difi*erent places of business of their customers." (This must be equally applicable to delivery.) 21 4-. Hyde v. The Trent and Mersey Navigation Company. — Action for value of eighteen bales cotton, burned accidentally in carrier's warehouse in Manchester, having been carried by DELIVERY OF GOODS. 383 canal from Grainsborough. They were burned the same night as unloaded. The carriage for the through journey had been prepaid, and also a sum for cartage of the cotton in Manchester to consignee's warehouse. The cartage was to have been performed by " Hibbert," a former clerk* with the Canal Com- pany, but who performed the cartage for his own benefit, the Company simply collecting his charge. The Company contended their contract as carriers had ended on unloading the cotton at the wharf, when they became warehousemen, and as ware- housemen they were not responsible for loss by fire. Chief Justice Lord Kenyon said — " The question is, whether at the time when the accident happened the goods were in the custody of the Canal Company as common carriers ; because, if they were, by the strict rules of law the Company are responsible, carriers being insurers in all cases except in two. After unloading a further act was to be done ; the goods were to have been taken away in carts, but not by the Company, for though they formerly kept carts, and carried away the goods of their customers to their respective houses for some time past, they had ceased to have any concern with the carts, or to derive any advantage from cartage whatever, the carts themselves, and all the benefit arising from that part of the business, belonging to Hibbert. I am not aware that it has ever been decided that it is the duty of the carrier to deliver such goods at the house of every individual person to whom they may be directed. In this case, however, there is one peculiar circumstance which makes it unnecessary to decide the general question, and that is the charge made by the Canal Company, in one of their bills, for the cartage in Manchester ; for that charge the Company undertook to deliver the goods. Therefore, without deciding the general question, I think that the Plaintiffs are entitled to the verdict which they have obtained. On the general point I have great doubts ; the leaning of my mind at present is that carriers are not liable to the extent contended for." Justices Ashhurst, Buller, and Grose concurred, but thought, on the general question, a carrier should be held responsible to deliver ; but they would not commit themselves to decide that question. Judgment against Company. — Tried in CouH of King's Bench, 384 DELIVEKY OF GOODS. Michaelmas Term, 1793. — From Diirnford and East's Term Reports, vol. 5, page 389. 215. Strong V. N'atally. — Action for value of a cargo of fish, Shetland to London, on a policy of insurance. The policy was "until the cargo shall be discharged and safely landed." The goods were unloaded out of the ship into a lighter, and the lighter was taken to consignee's wharf, on the Thames, in the afternoon, but owing to rough weather it could not be unloaded. The lighterman, finding that he could not land the goods, asked consignee whether he should stay and see the cargo landed. The consignee (Plaintiff) said he need not do so, for that he (the Plaintiff) would look to the landing himself. The lighter, during the night, sank, without any neglect being imputable to anyone. On the first trial, the verdict was for Defendant. On appeal. Justice Heath said — " I think the verdict perfectly right. The Plaintiff, in this case, relies on the words in the policy, ' until they are safely landed.' But every party may renounce so much of a contract as is for his own benefit. Now in this case the Plaintiff, by his conduct, has renounced all the benefit which would have accrued to him from the words of the policy on which he relies. It matters not how the loss happened after the Plaintiff had released the underwriters from that provision in the policy under which they would have otherwise been liable." Chief Justice Sir James Mansfield, Justices Heath and Kooke, concurred. — Tried in Court of Common Pleas, Easter Term, 1804. — From Bosanquet and Puller's New RepoHs, vol. I, page 16. 216. Bodenham V.Bennett. — Action for £347 lis., bank notes, contained in a parcel sent by coach, Hereford to Brecon. Sender paid a halfpenny for carnage and booking. The parcel was entered on the way-bill — " Put in the back seat of the coach." The book-keeper at Brecon took two other parcels out of the front seat of the coach, but did not look for the bank parcel, because the coachman usually carried this parcel in his side pocket. The coach people knew that bank parcels containing Welsh notes were regularly sent. The coachman this day was intoxicated, but not unable to attend to business. The carriers had given their usual notice as to parcels in value over £5. DELIVERY OF GOODS. 385 The Jury found for the Plaintiff, owing to the gross negligence of the carriers' servants. On appeal, Baron Wood said — " The parcel was delivered at Hereford ; it was entered on the way-bill ; for anything that appears it gets to Brecon, where it ought to have been delivered. The carrier does not merely engage safely to carry and convey ; he also engages safely to deliver. Have they taken care to deliver ? Nobody looks for it. The book-keeper saw it down in the way-bill ; he knew it was to be delivered at Brecon, but never looks for it — not the least in the world. He says, ' I trusted to the coachman ; ' he, I suppose, would say, ' I trusted to the book-keeper.' "W^iat can be grosser negligence ? In all probability the parcel was left in the coach and went forward." Barons Graham and Garrow concurred. Judgment against carrier. — Tried in Court of Exchequer , May 7, 1817. — From Price^s Reports, vol. 4, p)('fj^ 31. 217. Birkett v. Willan. — Action for the value of a box of cochineal (over £5 value), carried by coach, London to Exeter. Some person wrote a letter, signed " J. Worthy," order- ing the goods, and the sender, having a customer, Jonathan Worthy, at Exeter, sent the goods, and the box was addressed "J. Worthy, Exeter." It arrived safely on a Satm'day, and that evening a man inquired for it at the coach office, and asked the carriage (16s. 6d.), and if he could have the box next day (Sunday). The answer was that parcels were never sent out on a Sunday, but that by sending for it he could have it. He got it the next evening, and it proved to be a fraud. The carrier pleaded his notice as to parcels over £5 value, but sender's knowledge of the notice could not be proved. Chief Justice Abbott told the Jury they should consider if there had been any want of care in the carrier delivering the parcel to the person who came for it. He added, if a parcel was directed to a person generally in such a place as Exeter, without specify- ing his place of abode, the carrier was not bound to carry that parcel to any place, but he would fully discharge his duty by delivering it at his office to any person coming from the person to whom it was directed, or whom he might reasonably suppose to come from that person ; and he left it to the Jury to say 25 386 DELIVERY OF GOODS. whether, under the circumstances proved, the canier had reasonable ground for thinking that the man to whom he did deliver the parcel came from the person to whom it was directed. Verdict for carrier. Plaintiff appealed, and urged that it was a case of gross negligence, quoting the case of Bodenham v. Bennett (4 Price, 31). The same Judge in a measure admitted this by granting a new trial. — Tried in Court of King's Bench, February 4, 1819. — From Barneivall and Alderson's Reports, vol. 2, page 356. 218. Di'.f V. Budd. — Action for £89 for a parcel of silks and other goods, by road cai'riage, London to Oxford. It appeared a stranger called at sender's warehouse in London and ordered the goods as for, and to be sent to, 3Ir. James Parker, High Street, Oxford, and gave a reference, which was found to be satisfactory. It appeared to be the carrier's practice to deliver parcels to consignee's address in Oxford. On the morning of the arrival of the parcel at Oxford, the canier's porter, being in the street, called at ]Mr. Parkers shop and asked if he expected a parcel from London, and Mr. Parker said not. On the same morning, and during the absence of the porter, a person called at the carrier's ofl&Qp and inquired for the parcel, and said that he had seen Mr. Parker in the early part of the morning, and that he had before received two parcels which were dhected for Mr. Parker, to be left at the waggon office " till called for ;" and on seeing the package in question he claimed it as his, paid the carriage, and took it away. It appeared two previous parcels, consigned in the name of Parker, this same person had received at the carrier's office. The case was first tried at the Gruildhall, before Lord Chief Justice Dallas. The carrier proved the following notice was put up in a conspicuous part of his office, and immediately opposite the entrance door : — " Take notice, that the proprietors of the public carriages who transact their business at this ofBce will not be answerable for any packages containing cash, bank notes, bills, jewels, plate, or watches, however small the value may be, or for any package of more than £5 value, if lost or damaged, unless the eamc is specified when delivered into the office." The Judge left it to the Jury— (1) Whether Plaintiff had DELIVERY OF GOODS. 387 knowledge of the notice in the carrier's office in London? (2) whether the Defendant had been guiky of gross negligence ? Jury found a verdict against the carrier. The carrier appealed, and on the appeal case Lord Chief Justice Dallas said — "The porter at Oxford knew the course adopted at the Defendant's office, and that it was his duty as his servant to deliver the parcel in question where it was directed ; but he having to deliver another parcel opposite 'Mi\ Parker's house that morning, he saw jMr. Parker, and told him there was a parcel for him at the office which he would deliver shortly, to which Mr. Parker replied that he expected none, and that he knew nothing of it. Should not the clerk who delivered the parcel in question have at least inquired what authority the person claiming it had to receive it ? If this were not negligence there would be an end of carriage for hire, for who would be safe if a carrier might deliver a parcel to a person of whom he is altogether ignorant, and whose residence is unknown to him, when he must have well known the f»erson to whom it was directed, not only by name, but by residence ? lie should at all events have been satisfied whether it was to he delivered to Mr. Parker in the High Street or not before he gave it to a third person." Justices Park, Burrough, and Richardson concuri'ed in a Judgment against the carrier. — Tried in the Court of Exchequer, Hilar j Term, 1822. — From Mooi'e's Reports, vol. 6, page 469. 21 9. CaArns v. Robins. — Action for value of two packages of goods lost out of a carrier's warehouse. The packages were carried by road from Chorley to London, and were duly delivered to consignee, but consignee sent them back to the carrier's warehouse to await his orders. They remained on hand over a year, and when wanted could not be found. The carrier had kept packages before for consignee, and he made no charge for warehouse rent ; but his servant, in evidence, said they con- sidered the carriage of the consignee's goods a sufficient remuneration for warehouse rent. The earner proved handing consignee a bill headed as follows : — ^, "Any gofxls or packages that shall have remained three months in the Avarehouse without being claimed, or on account of the non-payment of the charges thereon, will be sold to defray the carriage and other charges thereon, 388 DELIVERY OF GOODS. or the general lien, as the case may be, together with warehouse rent and expenses." The case was first tried before Baron Gurney, at the Middle- sex Assizes, when a verdict was given against the carrier, on the ground that he held the goods as a warehouseman. On the appeal case Baron Alderson said — " It appears to me that there was evidence whence the Jury might reasonably find that, in consideration that the parties whose goods were carried would pay a certain sum, the carrier would not only carry them, but would warehouse them for three months, the compensation so paid being a compensation, not only for carrying, but for warehouse rent also. The question is, Was the carrier a gratui- tous keeper of these goods, or a keeper of them for a reasonable compensation ? It seems to me that there was abundant evidence for the Jury in support of the latter view, and that the Jury have found a right verdict." Chief Baron Lord Abinger and Baron Grumey concurred. Judgment against carrier. — Tried in Court of Exchequer, May 4, 1841. — From Meeson and Welshi/s Reports, vol. 8, jpage 258. 220. Bourne v. Gatliffe. — Action for £734, value of several cases of linen, Dublin to Belfast and Belfast to London, by long sea steamer. The goods duly arrived in London, and were unloaded on Fenning's "Wliarf between 1 1 a.m. and 4 p.m. on 29th August, and that same night the warehouse was burnt down and the goods destroyed. Plaintiff's clerk proved that for several years cases of linen had come from Ireland and had always been delivered to his master's place of business in Iron- monger Lane. No notice of arrival had been given, nor was there much time between the unloading and the fire for either advice or cartage. The case was first tried in Court of Common Pleas, where the Jury gave a verdict for £734 against the can-ier. It was held that the unloading and depositing of the goods at Fenning's Wharf did not constitute actual delivery to Plaintiff, nor delivery according to the custom of the port of London ; nor that the Plaintiff had notice of arrival ; nor that a reasonable time had elapsed within which the Plaintiff might have removed the goods. It was held that the carrier had wharfed the goods safely, and that before a reasonable time had DELIVERY OF GOODS. 389 elapsed for the delivery they were burned, without any neg- ligence on his part. The Plaintiff, then, not being a common carrier, was bound to use only ordinary care. — Tried in Court of Commo7i Pleas, CouH of Exchequer Chamber, and lastly in House of Lords on June 7 and 10, 1844. — From Clark and Finnelly's RepoHs, vol. 11, page 45. Carrier's Liability in respect of Advising the Arrival OF Goods when he does not Delfv^er to Consignee's Premises. Case No. Wise V. Great Western (1856) ... 752 Great Northern v. Swaffield ( 1874) 750 Case No. Goldimj V. Manning (1773) ... 222 Stroyan v. L. 8. P. Co. (1854) ... 221 DIGrEST. In Golding v. Manning (i773) Judge Gould said — " I think tliat all carriers are bound to give notice of tbe arrival of goods to the person to whom they are consigned, whether bound to deliver (to consignee's premises) or not." In Siroyaii v. Londonderry Steam Packet Company (1854) rabbits reached Liverpool November 4, and lay till November 6. The Liverpool County Court Judge held that there is no such duty (advising arrival) in- cumbent upon the carrier by law, and he was unaware of any law w^hich imposes upon carriers such a liability; and as Plaintiff had not proved it as being a custom to the satisfaction of the Court, he non-suited Plaintiff. In Wise V. Great Western (1856) a horse arrived, at Windsor from Newbury ; it was overlooked, and re- mained in the horse box until next morning. Chief Baron Pollock held — "The Company to a certain extent may have been blameable, but the sender had sent the horse without any letter intimating he was coming, and without any groom to attend him on the journey. The Company was not liable (under special 390 DELIVERY OF GOODS. contract) for any damage that might be done to the lioi*se while remaining in the station till somebody came for him." By inference, the Company were not considered liable to give advice of the arrival of the horse. In Great JSforthern v. Swaffield (1874) a horse had arrived at Sandy Station ; there was no person to receive it, and it was sent to livery, and the owner, on application, refused to pay the livery charge. Chief Baron Kelly, on appeal, said — " The Defendant sent a horse to Sandy by the railway, and as it was not du'ected to be taken to any particular place, some one on his behalf ought to have been ready to receive the horse and take it away." Here no duty was cast upon the Company by the Judge to give any notice or ad^dce of arrival. 221 . Stroyan v. Londonderry Steam Packet Company. — Action for £2 12s. 6d. for 35 couples of rabbits, fuom London- deiTy to Liverpool. The rabbits arrived in the steamer "William M'Cormick," in Liverpool, on November 4, and Plaintiff received no notice of the arrival of the rabbits until November 6, when he received both rabbits and notice. The rabbits were then unsaleable, and he refused them. He pleaded the Company were responsible to send him an advice of an-ival. The Company pleaded it was not the custom to send notices of arrival for fish, fowl, or game. The Judge said that there is no such duty incumbent upon the carrier by law, and he was unaware of any law which imposes upon carriers such a liabiHty ; and as Plaintiff had not proved it as being a custom to the satisfaction of the Court, he non-suited VlsimtiS.— Tried at County CouH, Liverpool, before Judge Pollock, December, 18o4. 222, Goldinrj V. Manning. — Action for £29 14s. for damage to a box of silk, Birmingham to London, in 1773, by road carrier. The box was directed to Mr. L'eland, Spitalfields, London, but on the arrival in London the address was illegible, but the name of Samuel Ireland (no more) was on the way-bill. DELIVERY OF GOODS. 391 The box remained in the carrier's warehouse for t^yelve months before being identified and claimed, when the damage as claimed was ascertained. Justice Grould said — " There is no occasion to enter, as has been done at the bar, into the general question of the duty of common carriers, though it is held in Ou'en, 57, that all carriers are bound to deliver as well as to carry the goods. But this case depends upon its own special circumstances. The carriers certainly must be understood to have contracted to carry these goods on the same terms and in the same manner that they carried other people's ; and it appears that their general course of trade was to deliver goods at the houses to which they were directed, and that they received a premium and kept a servant for that special purpose. This box came directed to their (the carriers') warehouse at Birmingham, and that the direction was afterwards defaced was owing to their own neglect. They had Ireland's name in their way-bill, and might have found him out by their directory. Therefore here is a gross and palpable negligence on the part of the carriers, who, whether bound to deliver or not by the general duty of carriers, had undertaken so to do by their general course of trade ; and, indeed, I think that all carriers are bound to give notice of the arrival of goods to the persons to whom they are consigned, whether bound to deliver or not." Justices Blackstone and Nares concun-ed. — Tried in the Court of Common Pleas, Trinity Term, 1773. — From Blackstone' 8 Reports (Elsley Edition), vol. 2, ijage 916. If a Carrier Deliver Goods to a Wrong Person, he can Eecover Value of Same from such Person. Case No. Brown v, Tlodjson (1811) 223 Case No. Wallis V. Dimnell (18G3) 224 DIGEST. • In Brown v. Hodyson (isii) 17 firkins butter had been delivered in error to the wrong person, who appropriated the butter to his own purpose. Chief Justice Mansfield held that the count for money paid could be sustained, and gave Judgment for the carrier. 392 DELIVERY OF GOODS. In IVaJlis V. Dunnell (18C3) a servant of Plaintiff's (a carting agent) sold wool fraudulently to Defendant which he should have delivered to the proper consignee. Plaintiff recovered the value from Defendant. 223. Bvoivn V. Hodgson. — Action for £55 6s. for 17 iirkius butter wrongly delivered, and which Defendant applied to his own puqioses. The butter was consigned to Pen, and Plaintiff, the carrier, delivered it in error to Hodgson, Defen- dant. The Plaintiff " declared " for goods sold and delivered and for money paid, and delivered to the Defendant a bill of particulars — "To 17 firkins butter, £55 6s.," not saying for goods sold. The Jury found for Plaintiff. On appeal, Chief Justice Mansfield said — " At the trial, my attention was not called to the count for money paid, but upon this count I think the action may be sustained. The Plaintiffs pay Pen on account of these goods being wrongfully detained by Hodgson. They pay the value to the person (sender) to whom they and Pen were bound to pay it ; and this, therefore, is not the case of a man officiously, and without reason, paying money for another, and therefore the action may be supported. As to the objection taken respecting the bill of particulars, bills of particulars are not to be construed with all the strictness of declarations ; this bill of particulars has no reference to any counts, and it sufficiently expresses to the Defendant that the Plaintiffs' claim arises on account of the butter." Justice Heath concurred. — Tried in Court of Common Pleas, November 2Q, 1811. — From Taunton's Reports, vol. 4, page 189. 224. Wallls V. Dunnell. — Action by the agent of the Mid- land Great Western Railway Company for value of three bales wool received by him to deliver to Harrison, but which his carter in error delivered to Defendant. Plaintiff pleaded that Defen- dant subsequently wrongly purchased the wool from one of his, Plaintiff's, servants. Defendant pleaded the wool was purchased on the representation of Plaintifi's servant that it was sent to him by a friend in the country to be sold. A non-suit was claimed on the ground that Plaintiff was not the consignee of tlie wool, which the Judge refused to direct. Verdict for i DELIVERY OF GOODS. 393 Plaintiff, with £163 damages. — Tried before Lord Chief Justice and Special Jury, in CouH of Queen's Bench (Ireland), December, 1863. — From Irish Clearing House RepoHs. Whether the Carrier has Fully Done his Duty in Making Delivery is a Question for a Jury. Case No. i:cansx.B.^E.{im2) 234 When Goods are Eefused by Consignee, the Carrier is not BY Law Eequired to Advise the Sender of such Refusal. Case No. Hudson y. BaxendaU (1857) ... 225 DIGEST. In Hudson v. Baxendale (i857) a puncheon of gin was refused by consignee as not having been ordered by him. It lay in the carrier's Avarehouse for nearly three months, and lost 25 gallons by leakage. Sender ■was not advised of the refusal of the gin. Baron Bramwell, on appeal, said — " It is said that reasonable conduct inevitably includes that the sender shall be told the consignee refused to accept the goods. I wholly deny that that is so, but I do not say that there might not be cases Avhere it could be collected, from the mode in which the parties have dealt before, that one man may take upon himself such a duty ; but to lay down a general abstract proposition that a carrier, when the consignee has refused to receive, is bound to give notice to the sender, seems utterly unfounded." 225. Hudson V. Baxendale (Pickford & Co.) — Action for the value of 25 gallons gin that leaked from a puncheon, ware- housed after refusal by consignee — London to Brecon. The puncheon was taken by railway to Newport, 30th July, 1854, and then delivered to the Brecon carrier for conveyance by canal. The Brecon carrier signed for the puncheon at New- 394 DELIVERY 01'' GOODS. port, " Xot full, and leaky at tlie bung." Consignee refused the puncheon on the ground that he had not ordered it. The carrier placed the puncheon in a warehouse, where it remained nearly thi-ee months, Plaintiff having no notice that Webb, the consignee, had refused it. Plaintiff's traveller, going to Brecon in October, saw the puncheon in the warehouse, looking damp outside, and 25 gallons short. He arranged with Webb to take the residue. The case was first tried at the London Sittings after Trinity Term, 1857, before the Lord Chief Baron. He held that there was no evidence to go to the Jury in support of any count but the first. He told the Jury the Defendants were responsible for what took place while the puncheon was being conveyed from London to Brecon, but that they were not responsible for the leakage if it occurred after it was placed in the warehouse at Brecon ; neither were they responsible if the leakage arose from the original vice in the packing {i.e., bad or insecure cask). After' the Defendants had tendered the puncheon to consignee, and the consignee had said " I will not take it," then they were no longer insurers, and their duty as earners had ceased, and a totally different duty was cast upon them. He said, as to the third count (notice of refusal not having been given), if that was a duty, there was no evidence of any undertaking of the sort alleged ; and although a carrier is bound to do what is reasonable, he would not lay it down that it is the duty of a carrier to give notice if the goods are not accepted by tlie consignee. He left it to the Jury to say — (1) Whether they believed the defect in the cask arose from anything occurring after it was in the Defendants' hands ; (2) whether they had been guilty of negligence in the matter subsequent to the refusal by the consignee. The Jury found a verdict for the Defendants. A rule was obtained to set aside the verdict on the ground that it was the Defendants' duty to give notice of the consignee's refusal to receive the goods. The rule was also obtained on the ground of the rejection of evidence tendered to show that it was the practice of carriers to give notice ; but it appeared that, on the Chief Baron expressing , his opinion that it was not admissible, the evidence was not pressed. On the motion for a rule Baron Bramwell said — " I ai inclined to think that when a parcel is tendered for deliver DELIVERY OF GOODS. 395 and refused, it is the duty of the earner to conduct himself reasonably with respect to it. I do not say that any duty is imposed upon the carrier. I am by no means clear that he would not be warranted in leaving it in a convenient place for the consignee to take. I doubt very much whether the sender has a right to impose the burden on him of taking care of goods because the consignee or sender has not done his duty by them. But assuming that he retains possession of them — and it is to be taken that he does so to secure his lien — he is bound to conduct himself reasonably with respect to them. It is said that reasonable conduct inevitably includes that the sender shall be told the consignee refused to accept them. I wholly deny that that is so, but I do not say that there might not be cases where it could be collected, from the mode in which the parties have dealt before, that one man may take upon himself such a duty; but to lay down a general abstract proposition that a earner, when the consignee has refused to receive, is bound to give notice to the sender, seems utterly unfounded. There is this difl&culty — the sender may not be known. Is he to make an unlimited inquiry? I hold that he is not bound to do so. Then it is said that at all events he is bound to give the notice where it is reasonable that he should. If that is a question of fact, my Lord left it to the Jmy, and the Jury decided that it was not reasonable to do so. But then it is said it is a question of law, and the Judge should have told the Jury that it was reasonable to give notice, and he should have told them it was reasonable to do so because a puncheon of gin is of a tempting character, eminently calculated to be preyed upon, and because he knew where the sender was. Well, if that was a question of law, as I own I feel it is (because a question of what is reasonableness or otherwise is for the Judge to determine, and whether the fact be within it or not is for the Jury to determine, because it is a question of fact), to say whether the carrier shall give notice, I am of opinion that in this case it was not the duty of the carrier; and, really, the only ground on which it is suggested to be so is the peculiar nature of the article, namely, that it is one that is exceedingly likely to be preyed upon. But just conceive a marginal note thus: 'Where a carrier receives a parcel of gin. 396 DELIVERY OF GOODS. and the consignee will not take it, inasmuch as it is an article which is very likely to escape it is the duty of the carrier to give notice to the sender.' I hold that that abstract propo- sition is not a true proposition of law, and I say, if it is a question of law, I hold that there was no evidence here that the carrier ought to have given notice to sender. If it is a question of fact, my Lord left it to the Jury, who found against the Plaintiff. Upon these grounds, therefore, I am of opinion the rule ought to be discharged. It is clear to my mind there was no misdirection ; the question of law was rightly decided, and the question of fact was left to the Jury." Baron Watson said — " I am entirely of the same opinion. It is extremely striking that in the books, both the treatises and the reports, there is not a trace of any such obligation upon a carrier ; and, secondly, it is obvious it could not be so, because the law does not aj)ply particularly to large carriers, like Pickford & Co., but is general to all carriers, and relates to all carriers by sea and land. We know there are carriers of parcels going from one town to another ; many of them cannot read or write, and a large portion of those who send goods to various consignees are unknown to the carriers, who cannot tell by whom they are sent. In order to make this law it should go to this extent — the carrier should always take a note, which the sender would require to be written, and keep books, and be prepared to give a notice. That would be a serious consequence to carriers. Take those carriers I have referred to, most of whom cannot read or -write ; many receive parcels to carry from street to street, and why a notice is to be given I cannot understand. It must be a law affecting all carriers, and not only the particular case in question. No doubt there may be a question to leave to the Jury. There may be such cases where it is the duty of the can-ier. I do not say it is, but it may be, and if that is so, it must be left for them under the circum- stances to decide." Verdict for Defendants.— TWecZ in Court of Exchequer, Nov. 19 and 20, 1857,— Law Journal RepoHs, vol. 27, jjacje 93, Ex. DELIVERY OF GOODS. 397 Goods Tendered to Consignee and Eefused. Case No. Storr V, Crowley (1825) 226 Hudson Y. Baxendale {l8o7) ... 225 Case No. Crouch V. Great Western (1858) 384 Bradshaiu v. I. N. W. (1873) ... 213 DIGEST. In Storr v. Crowley (1825) a legal tender had been made, but the goods were brought back because consignee's wife could not pay carriage. Carrier's porter having undertaken to make a second delivery, which was, however, not made, it was held the carrier had " waived all the benefit which might be derived from the previous tender," and he must pay for the lost goods. In Hudson v. Baxendale (i857) we have a most important decision for the carrier. When goods are refused, and he is expected by senders to give them notice of same, Baron Bramwell, on appeal, in the Court of Exchequer, held that there was no law requiring a carrier in such a case to advise the sender ; the carrier's duty was " to conduct himself reasonably with resjDect to it ;" and "I do not say that there might not be cases where it could be collected, from the mode in which the parties have dealt before, that one carrier may not take upon himself such a duty, but to lay down a general abstract proposition that a carrier is bound to give notice to the sender, seems utterly unfounded." In the same case, the Lord Chief Baron, on the first trial, told the Jury the carrier was not responsible for the leakage to the puncheon of gin, if it occurred after the refusal, and when it had been placed in the carrier's Av^arehouse. After consignee said " I will not take it," the carrier was no longer an insurer, and a totally different duty (warehouseman) was cast upon him. In Crouch v. Great Western (i858) a parcel of packed parcels, London to Plymouth, was refused at Plymouth because the Company had charged the carriage 50 per cent, over the ordinary rate ; the parcel was next morn- 398 DELIVERY OF GOODS. ino- retiinied to London, and lost. The Jury, on the first trial, under direction of the Judge, found that the tender of the 2s. 3d. (full charge demanded on delivery) to the Company on the day after refusal (but after parcel had been sent back) was made within a reason- able time after the first offer and refusal, and that the package was sent back to London before a reasonable time had elapsed ; and, also, that the package ought not to have been sent back to London. This decision was affirmed in Court of Exchequer and Exchequer Chamber ; but Baron Bramwell in the first Court, and Justice Crowder in second Court, strongly dissented, and the general opinion of the Court seemed to be that they were bound by the verdict of the Jury. In Bradshmv v. /. JSf. W. (1873) 1 7 waggon-loads of smithy coal were refused by consignee ; he was duly advised of arrival, and took one cart-load away, when, ]ieglecting to remove any more, the Company unloaded the coal. Judge Keogh, on appeal, said — " Did the notice amount to delivery of the goods ? Was there no further liability? Their liability ceased the moment they gave notice. The consignee was bound to remove the goods in a reasonable time." 226. Storr V. Croivley. — Action for £3, value of a hamper, hams, apples, &c., Windsor to Worcester, in 1825, by canal. Consignee lived half a mile from the canal wharf, and on 3rd May a porter took the hamper to consignee's house. Consignee was from home, and his wife had not the money to pay for the carriage. The porter refused to leave the hamper, and took it away. It appeared the carrier had a claim against consignee for 9s. 2d. for previous carriage alleged to have been unpaid. In the course of the same day a servant maid went to the ware- house with the money, saw the porter, and tendered payment if he would bring the hamper again. He said he could not bring it that evening — the horse had been out all day — perhaps he might bring it next morning, but there would be an addi- tional cartage. Next day consignee's agent and attorney went to the carrier's office requesting the carrier's managing clerk DELIVERY OF GOODS. 399 (Weever) to have the hamper sent home again, offering to pay the carriage and additional porterage. Weever expressed sur- prise at its having been sent at all, and said it would not have gone if he had known it. Plaintiff owed 9s. 2d., and it should not be delivered till that was paid ; he had particular orders to that effect. Consignee himself subsequently called and tendered the carriage for hamper, insisted he had paid the 9s. 2d., but refused to produce the receipt for it, which he had. The hamper was detained. The case was first tried before Justice Littledale at the Worcester Summer Assizes, 1824, when Plain- tiff was non-suited. Plaintiff then appealed, when Chief Baron Alexander said — "It appears to me suffieiently proved as a general rule that a carrier, having once tendered a delivery, has discharged himself of his obligation, because otherwise where is his liability to cease ? Where is the line to be drawn if not there ? But the question is if in this case the rule to be applied is not a different one. The principal must be bound by the acts of his agents. Now, when the porter was applied to on the evening of the day he had carried the hamper to Plaintiff's house, he does not say to the servant — ' I have per- formed my contract ;' but he said he could not bring the package that evening because the horse had been out all that day, and was tired, but that perhaps he might bring it in the morning, but there would be an additional cartage. That appears to be the commencement of an undertaking on the part of the carrier to waive all the benefit which might be derived from the previous tender. The clerk, Weever, said — ' We will not send the goods unless you pay a sum of money before due,' and to which they were not entitled. These acts amount to an express and direct waiver of the advantages which they might have upon the ground of proffer, and prove that, according to the under- standing of the parties (though possibly not according to the general rule of law), there was a continuing contract to find out the person to whom the goods were consigned, and to deliver them. For these reasons I think our Judgment must be against the carrier." Baron Graham said — " I concur. If the porter who took the goods had told INIrs. Storr (consignee's wife) that she must decline the payment of the carriage at her peril, that he could 400 DELIVERV OF GOODS. not bring the hamper again, and that his master must be paid for warehouse room for them — if he had used any such lan- guage as this, I should say then the Plaintiff would not have had any cause of action. It is clear that neither the porter, the clerk, nor the principal had the smallest idea of discharging themselves from their original liability." Baron Hullock said — " If the carrying were merely fraudu- lent ; if the hamper was taken at a time when the house was empty, or when it was clear there was nobody at home, that act might go for nothing. But it certainly appears to have been a bond fide carrying. The delivery and the payment of the price are concm'rent acts, and the porter had a right to say — ' I will not deliver the articles till I am paid the carriage.' If, upon being subsequently applied to, he had said — ' I have offered to deliver the hamper to the house once, I am not obliged to do so any more,' there might have been some foundation for the ground taken here to-day." Judgment against carrier for £3. — Tried in Court of Exchequer, January 29, 1825. — From M^Cleland and Younge^s Reports, vol. 1, page 129. Where Goods " under Bond" are Consigned to a Customs Warehouse, and likewise to a Particular Consignee. Case No. Cork DistiUertj Company v. G. S. ^- W. (1874) ... 227 DIGEST. Ill Corh Distillery Company v. Great Southern and Western (1874) 20 puncheons whisky were consigned to Stein & Co., also to " Customs Warehouse." Stein & Co. got possession of the whisky and never paid the tluty, £l,.360, and senders were liable for it. Lord Cairns, in House of Lords, held that such a contract could have been made by senders with the Company not to deliver to Stein & Co. ; but " to establish such a contractive must be able to find that the position of the Distillery Company was actually and clearly made known to the Ptailway Company. But there is not a , J DELIVERY OF GOODS. 401 word that I can find in the special case which states that the Railway Company had such notice ; and if they had not such notice, then the case returns into the condition of a case without any special circum- stances brought home to the knowledge of the carriers —a case in which there is merely a sender and con- signee, and goods delivered to be carried for the con- signee, and therefore under his own order with regard to the time and place of delivery." When goods " under bond " are consigned to a con- signee, and likewise to a Customs or Excise ware- house, and the carriage is "to pay," if the consignee neglects to pay the carriage, and the Customs or Excise officers seize the goods for Her Majesty's duty, the carrier loses his lien for his carriage, as Her Majesty's lien takes precedence. We cannot find such a case having been tried, but counsel has expressed this opinion upon a case submitted. The carrier's remedy is to require all goods " under bond " to be prepaid, or to take a guarantee from sender that he will pay the carriage if consignee neglects to do so. 227. C'orfc Distilleries v. Great Southern and Western Raihvay Company. — Action for £1,360 5s., duty on 20 puncheons of whisky, in several consignments, Cork to Limerick. The whisky was consigned as follows : — " Delivered at the Grreat Southern and Western Eailway Company in good order — Customs Warehouse, Limerick, &c. — 1 puncheon of whisky, for John Stein & Co., Limerick Station, Limerick. — Cork Distilleries (Limited)." The receipt note was in this form : — "Cork, 19th day of February, 1869.— From Thomas Henry Hewitt & Co., Watercourse Distillery — 1 puncheon of whisky, addressed to Seymour's Customs Warehouse at Limerick, for John Stein. & Co." The Company did not deliver any of the puncheons to the Customs warehouse, but Stein & Co. having appUed for them at the railway station, the Company delivered the puncheons to them. Stein & Co. never paid the duty, and Plaintiffs, who had a bond for £10,000 with the Excise, were charged with the duty as above. The case was first tried in the 26 402 DELIVERY OF GOODS. Queen's Bench, Dublin, June, 1870, when a verdict for £1,360 5s. was given for the Plaintiffs. The Company appealed to the' Exchequer Chamber, Dublin, January 23 and February 20, 1871, when the previous Judgment was reversed, and a verdict given for the Company. Plaintiffs then appealed to the House of Lords, when Lord Cairns (Lord Chancellor) gave Judgment. He said — "The Cork Distillery Company and Stein & Com- pany appear from the case to have stood in the position of vendors and purchasers. The Company's carriage was to be paid by the purchasers (consignees). If the case ended there, it would be one of the cases of the most ordinary occurrence possible. The property would have passed, the transit of the property would have been at the risk of the purchasers, the pm'chasers would have been the masters of the contract for conveyance, and it would have been for the purchasers to take delivery either at the place indicated at the time of the de- parture of the goods or at any other place at which they after- wards preferred to receive the goods. The vendors, however, to obtain the permit necessary for the conveyance of the whisky, gave a bond to the Customs. . . The bond would be given by the Distilleries Company really on behalf of Stein & Co., and Stein & Co. would be responsible to the Distilleries Com- pany if they did anything on their part to frustrate the fulfil- ment of the condition of that bond. I could quite understand a special contract being made under the circumstances between the Distilleries Company and the Railway Company — that placing upon the whisky a destination to a Customs warehouse ' was not to be treated as a mere indication of the address of the consignee, but that it must in all cases be taken as of the essence of the contract of conveyance ; that it must be under- stood there was a special engagement that the goods would be carried to that place and to no other place ; and that the Com- pany would be liable if any liability should fall upon the senders under their bond. To establish such a contract we must be able to find that the position of the Distilleries Company was actually and clearly made known to the Eailway Company. But there is not a word that I can find in the special case which states that the Eailway Company had such notice ; and if they had not such notice, then the case returns into the con- DELIVERY OF GOODS. 403 dition of a case without any special circumstances brought home to the knowledge of the carriers — a case in which there is merely a sender and a consignee, and goods delivered to be carried for the consignee, and therefore to be under his order with regard to the time and place of delivery. I therefore think the Judgment of the Exchequer Chamber is correct, and therefore the present appeal must be dismissed." Lords Hatherly, O'Hagan, and Coleridge concm'red. Verdict for Company. — Tried in the House of Lords, June 29 and 30, 1874. — From Laiv BepoHs, House of Lords, vol. 7, page 269. Productions' of Carrier's Advice Note (although Fraudu- lently Obtain'ed) a Warrant to Carrhsr to Deliver the Goods. Case No. ReuQh T. L. 4- N. W. (1870) ... 254 Case No. M'Kean v. JH'Iver (1870) 228 DIGEST. In Heugh v. London and N'orth Western (isro) a bale was carted and tendered to the consignees (Southwark India Rubber Company), who refused it. The Company had to take it back, and then issued an advice delivery note saying the bale lay at consignees' risk. One of consignees' men got possession of this advice note, and on its production got possession of the bale fraudu- lently. Chief Baron Kelly, on appeal, said — " It is true, as a matter of law, a delivery to the "UTong person by a carrier while he is still clothed with the character of a carrier is held to amount to a con- version. But in this case the character of ccirrier had ceased when the delivery complained of took place, and w^hatever may have been the character which had devolved upon the Company, it certainly was not the character of carriers." Baron Martin said the Compaiw were involuntary bailees (warehousemen), and nothing else. Judgment for Company. In M'lvean v. M'lver (i870) senders' traveller fraudu- lently ordered goods for imaginary consignees in 404 DELIVERY OF GOODS. Glasgow. He indorsed tlie advice notes, and got possession of the goods. The carriers performed every act in the ordinary course of business in Glasgow. Baron Martin held the carrier exempt from liability, saying — " For the purpose of making carriers guilty of conversion of goods there must be something beyond this (the facts that had been proved) — some fault or some wrong — and in my judgment it is a question of fact whether or not their conduct with respect to the delivery of the goods was negligent." 228 1 M^Kean v. M^Iver. — Action for goods alleged to have been .wrongly delivered. Plaintiffs, jSour and starch merchants, INIanchester, emjDloyed a traveller named Heddell to get orders in Glasgow. Heddell sent forward orders for goods for F. Cowie & Co., 11, West Nile Street, Glasgow, and Tait & Co., 71, George Street, Glasgow. The goods were for- warded to Liverpool, and shipped by Defendants' steamers for Glasgow. Cowie & Co. were advised on arrival of their goods by advice note. The advice note, purporting to be indorsed in the name of Cowie & Co. (really being indorsed by Heddell), was brought to the Defendants as authority for the delivery of the goods, and the Defendants, according to their usual course of business, on the production of the order delivered the goods to the person named therein. In respect to Tait & Co.'s goods, Defendants delivered them at 71, George Street, acting on similar indorsed notices to those used in the other case. There was, in fact, no such firm as Tait & Co., but Heddell received the goods at 71, George Street, after indorsing the notice in their name. Heddell made away with all the goods. Baron ]Martin — "We are of opinion the Defendants are entitled to Judgment. In point of fact it is found that they followed the course of business always pm-sued by carriers of goods between Liverpool and Glasgow, and delivered the goods at the address indicated. Defendants were misled by fraud, but nevertheless they had a right to assume that there were persons called Tait & Co. at the address to receive the goods. 1 It seems to me that if the Defendants delivered the goods at the address to a person who rex^resented himself to be Tait & DELIVERY OF GOODS. 405 Co., they did all they were really bound to do. I think they obeyed the directions given to them, and they have been guilty of no wrong, because they dealt with these goods in the manner in which they were directed to do. For the purpose of making carriers guilty of conversion of goods there must be something beyond this — some fault or some wrong — and in my judgment it is a question of fact whether or not their conduct with respect to the delivery of the goods was negligent. If they, by reason of the directions given by the consignee, were naturally led to act as they did, I do not think that would be a conversion ; nor would the mere fact of the person who re- ceived the goods not being Tait & Co., there being no such person there, in my judgment make the carriers responsible as for a conversion." Barons Bramwell and Channell concurred. Judgment for carriers. — Tried in Court of Exchequer, Nov. 22, 1870. — From Laiu Journal RejpoHs, vol. 40, page 30. Caerier can Deliver G-oods to Eeal 0^^•NER though he be NEITHER Consignee nor Sender. Case No, Sheridan y . New Quay Company {idibS) 229 DIGEST. In Sheridan v. Neiv Quay Comimny (I858) a cargo of bark was sent from Donaldson, Dumfries, to Liverpool, and thence to Manchester. Cooper ordered the bark from Donaldson, and sold it to Sheridan. Cooper, not paying Donaldson for the bark, could not get posses- sion of the bill of lading. The New Quay Company (carriers) carried the bark Liverpool to Manchester, as from Buchanan (Cooper's agent) to Sheridan, but the actual delivery was stopped. Justice Willes held that " the law would have protected them (the carriers) against the real owner (Donaldson) if they had de- livered the goods in pursuance of their employment, without notice of his claim. It ought equally to pro- tect them against the j;i"(??^/(? owner (Sheridan), from whom they could not refuse to receive the goods, in 406 DELIVERY OF GOODS. the present event of the real owner claiming the goods and tlieir beino- jriven to him." Donaldson got the bark. 229. Sheridan v. Neiu Quay Company. — Action for the value of a cargo of bark, £125 12s. A person named Cooper ordered the bark from Gr. J. Donaldson, Corsock, Dumfries, and it was shipped in a vessel, the " Mart," for Liverpool, where it duly arrived, and Cooper, writing from Manchester, requested the Defendants (carriers) in Liverpool to look after the " Mart," and let him know when she arrived. Donaldson sent the bill of lading of the bark to the Manchester and Salford Bank, who were not to part with it without receiving the £125. The bank people could not find Cooper at his reputed address or else- where, and sent the bill of lading back to Donaldson. The intention on Cooper's part was that Defendants should, as carriers, carry the bark Liverpool to Manchester. Coo^oer, it seems, transferred the bark to Sheridan (Plaintiff), but it never reached Sheridan's hands. The captain of the "Mart," not receiving his bill of lading, took fright when half of the bark had been unloaded from his vessel and consigned to Sheridan, Manchester. He, however, ultimately consented to send the bark forward, on the written understanding that the delivery of the bark should be stopped in Manchester until the bill of lading indorsed by him had been lodged. Thus it would seem that Buchanan & Co., who acted as agents for Sheridan, sent the bark foi-ward consigned from Buchanan to Sheridan. Cooper, not paying for the bark, could not really effect the transfer of the bill of lading, and ultimately the Defendants delivered the bark to the order of the original sender, Donald- son. Justice Willes, in giving Judgment, said — "The De- fendants were common carriers, and therefore bound to receive the goods for carriage. They could make no inquiry as to ownership. They have not voluntarily raised the question. It was raised by the demand of the real owner before the Defendants had parted with the bark. The law would have protected them against the real owner if they had dehvered the goods in pursuance of their employment, without notice of his claim. It ought equally to protect them against the pseudo I DELIVERY OF GOODS. 407 owner, from wliom they could not refuse to receive the goods, in the present event of the real owner claiming the goods and their being given up to him. The compulsory character of the emplo}Tnent of a carrier furnishes ample ground for so holding. We are therefore of opinion that Judgment should be for the carriers." Justices Williams, Crowder, and Byles concurred. — Tried in Court of Common Pleas, July 5, 1858. — Frorn Law Journal Reports, vol. 28, page 58. What Constitutes Proof by Consignee of not having Eecefved the Goods. Case Ko. Griffiths V. Lee (1823) 230 DIGEST. In Griffiths v. Lee (1823) Baron Hullock held it sufficient evidence of non-delivery that consignee's shopman denied delivery, and believed it could not have been delivered without his knowledge. 230. Gn^ths V. Zee.— Action for a parcel, value £10, lost, Shrewsbury to HolyweD, by road earner. Sender proved giving the parcel to can-ier's coachman. Consignee's shopman denied delivery, and believed it could not have been delivered without his knowledge. Carrier's defence was his notice as to parcels over £5 value, which notice he advertised in Chester Chronicle. Consignee admitted he read that paper, but never observed the notice. Baron Hullock considered the evidence of non- delivery sufficient to call upon the carrier to prove a dehvery by his porter or some other witness, because Plaintiff could not be expected to prove a non-delivery better than he had done. As to the proof of notice, that had failed altogether. Judgment with costs, £15, against carrier. — Tried at Nisi Prius (Sh7'euis- hnry Assizes), July 24, 1823. — From Carrinr/ton and Payne's Ikpmis, vol. },page 110. 408 DKLnKHY OF GOO: s. When the Consignee cannot be Found the Carrier must AD^■ISE THE Sender. Case No. Stephensot y. J lart (ISZ8) 231 DIGEST. In Steplienson v. Hart (1828) a swindler induced a manufacturer to send him goods, addressed to "J. West, Esq., 27, Great Winchester Street, London." This house had been untenanted twelve months. West, by letter, ordered the goods to St. Albans, to a public-house, where he got them, and disappeared. Justice Burrough, on appeal, said — "At the outset, no doubt, the contract was between the carrier and the consignee, and when it was discovered that no such person as the consignee was to be found in Great Wmchester Street, that contract was at an end, and the goods remained, in the hands of the carrier as the goods of the sender; a new implied contract arose between the carrier and the sender to take care of the goods for the use of the sender." 231 . Stephenson v. HaH. — Action for £37 17s. 6d., value of a box of combs. A person calling himself J. West called on Plaintiff in Birmingham and purchased the combs, and gave a bill of exchange having two months to run, and ordered the box to be sent to " J. West, Esq., 27, Great Winchester Street, London." The package was duly sent, and the carrier (De- fendant), on offering the box at this address, found the house closed, and that it had been untenanted for twelve months, and no person of the name was known about there. About a week or ten days afterwards the carrier received a letter from St. Albans, signed J. West, informing him that a box for him had been addressed, by mistake to Great Winchester Street, and requesting him to forward it to the "Pea Hen" Inn at St. Albans. This was done, and the person calling himself West received the box, and shortly after left the inn, where he had been stopping for some days. He was never heard of after- DELIVERY OF GOODS. 409 wards, and when the bill of exchange became due it was found that a fraud had been successfully accomplished. Sender (Plaintiff) claimed to recover from the carrier for wrongful delivery. Lord Tenterden, who first tried the case, left it to the Jury whether the carrier had delivered the box in the due course of his business and duty as a carrier. Jury gave verdict for Plaintiff for amount claimed. The carrier appealed, and on the appeal case Justice Bur- rough confirmed the previous verdict, and said — " At the out- set, no doubt, the contract was between the carrier and the consignee, and when it was discovered that no such person as the consignee was to be found in Grreat Winchester Street, that contract was at an end, and the goods remained in the hands of the carrier as the goods of the sender ; a new implied con- tract arose between the carrier and the sender to take care of the goods for the use of the sender. It is clear that the pro- perty in them never passed out of the Plaintiff (the sender). The circumstances (untenanted house, &c.) ought to have awakened the suspicions of the carrier, and he was guilty of gross negligence in parting with the goods without further inquiry. In the result they were the goods of the Plaintiff in his possession, and he is liable to him if he deliver them wrong- fully." Justice Park concurred. Justice Gaselee dissented, although he held there was gross negligence on the part of the carrier. Judgment against the carrier. — Tried in CouH of Common Pleas, Hilary Term, 1828. — From Bingham's RepoHs, vol. 4, page 476. Carrier cax Kefuse to Deliver the Goods until the Carriage is Paid by Consignee at Time of Delivery. Case No. Stotr y. Crowley (1825) 226 DIGEST. In St07'r V. Croidey (i825) Baron Hullock said — " The delivery and the payment of the price are concurrent acts, and the porter had a right to say — ' I will not deliver the articles till I am paid the carriage.' If, 410 DELIVERY OF GOODS. upon being subsequently applied to, he had said — ' I have offered to deliver the hamper to the house once, I am not obliged to do so any more,' there might have been some foundation for the ground taken her(> to-day." In eespect to Delivery of Part of the Consignment (Breaking Bulk) Constituting a Delwery of the Whole. Case No. Bolton V. Lancashire and Yorkshire (186G) ... ... 116 DIGEST. In Bolton v. Lancashire and Yorhhire (1866) Justice Willes said — "There have been questions if a delivery of a part of the goods under a contract puts an end to the stoppage 2?i transitu. It has been said that a delivery of a part is a delivery of the whole ; but that decision has been dissented from, and it has been said that it is only so when the delivery of the part is in course of delivery of the whole, and the taking posses- sion of that part is then an acceptance of constructive possession of the whole." A Penny Stamp iniust be Affixed to any Order Transferring GrOODS from One CONSIGNEE TO ANOTHER. ThE ABSENCE OF SUCH Stamp, HO"\ravER, does not Make the Transfer OF the Goods Illegal. Case No. Poo% V, 6'. r. (1876) 130 DIGEST. In Pooley v. G. E. (i876) a quantity of rails were transferred twice to two different persons, and no Stamps were put on the dockets. The transfer advice note could not be accepted in evidence until the penalty under the Stamp Act had been paid. Chief Baron Kelly said -— " The Company might have DELIVERY OF GOODS. 411 accepted the delivery order at once, and upon receipt of it they might have taken their chance of being- subjected to a penalty under the Act, and have de- livered the goods to Davis. The condition with regard to the transfer stamp was one which the Company might have dispensed with at any time, and yet by so doing they would have conferred no right on the Plaintiff." Where Consignee Controls the Place of Delivery, and WHERE he Alters, by Special Order and Usage, Sender's Consignment as to Place of Delivery. Case No, Stephenson v. Hart (1828) ... 231 Qmggany.Duff(^183G) 26 Scot/torn V. S. S. (1853) 132 Case No. L. Sf- N. W. y. Bartlett (1861)... 232 Cork Distillery Company v. G. >S.J- Tr. (1874) 227 DIGEST. In Quiggan v. Duff (i836) two boxes of type had been carried by canal to Liverpool and deposited on the Duke of Bridgewater's Wharf Duif had given notice to let goods for him remain on the wharf until he sent for them. They could not be found on the sixth day after arrival. Chief Baron Abinger held it ought to have gone to a Jury on the question whether, inasmuch as Duff, by his notices, had in this particular case made the Duke's Wharf his own place of receipt for the goods, he had accepted them, and whether, if so, that was a proper place for leaving the goods so that Duff could take proper care of them. In Scothorn v. S. S. (isss) goods Avere consigned and invoiced from Great Bridge to London for " Scothorn & Co., to the East India Docks, passenger ship ' Mel- bourne,' Australia." Consignee went to Euston Sta- tion, and left with a company's clerk there the railway receipt, across which was written — " Send the boxes, &c., to Scothorn, engineers. Bell Wharf, Ratcliffe, London." The clerk agreed to this. The boxes, how- 412 DELIVERY OF GOODS. ever, were delivered to the " Melbourne," and went to Australia and were lost. Baron Piatt held — " If a caiTier undertakes to carry goods from one place to another, it is subject to a countermand at any part of the journey, though the owner may be bound to pay for the whole distance." In L. cf N. W. V. Bartleti (I86I) 28 qrs. wheat were sent to Birmingham at S. to S. rate, but sender paid Is. 6d. per ton extra for its delivery to consignee's mill. Consignee had established a usage that his wheat was to remain at the station. The wheat in question was never delivered to the mill, and was deteriorated and returned to sender (Defendant). Chief Baron Pollock, on appeal, held — " It is quite clear that the consignee of goods may receive at any stage of the journey; and I think if sender directs goods to be delivered at a particular place, it is no contract to deliver the goods at that place and not elsewhere. The contract is to deliver the goods there unless the consignee shall require them to be delivered at some other place." Judgment for carrier. In Cork Distillery Company v. G. S. c|- W. (1874) 20 puns. Avhisky " under bond," directed to Stein & Co. as consignees, and also to Seymour's Customs Warehouse, Limerick, were delivered to Stein & Co., and not to the Customs. In the absence of advice by sender to the carrier as to the circumstances, the delivery to Stein & Co. was held to have been warranted. 232. London and North Western RaAhvay Co. v. Bartlett. — Action for £24 6s. lOd., deterioration of 28- quarters wheat that had remained on hand from 31st December to about 4th March, 18G0, at Birmingham, from Brackley. The wheat was invoiced at station to station rate, and sender paid the carriage, and a further sum of Is. 6d. per ton for delivery at consignee's mill, two miles from Birmingham Station. Consignee was in the habit of leaving grain at Birmingham Station, and objected to its being delivered on arrival unless he gave orders accordingly. DELIVERY OF GOODS. 413 On the 24tli May, 1859, consignee wi-ote the Company as follows : — *' We have sent you instructions several times not to deliver any grain to our mill unless you have received our •written order for the same, no matter whether paid, delivered, or not. You have again this morning delivered the lot of Biddle's contrary to these orders. We heg to inform you that we shall in all cases return to the station any wheat delivered in this way from this time." This order led to a special usage and course of business between consignee and the Company, and consequently, on receipt of the wheat, the Company sent consignee by post an advice of arrival. About the 2nd January consignee sent a man who sampled the wheat, and remarked to the Company's grain porter, " This is rather a roughish lot, John." The Company- heard nothing until the 4th ]March, when Plaintiff (sender) sent a man to sample the wheat, which he pronounced as deterio- rated in value 14s. 8d. per quarter. Being unable to sell the wheat in Birmingham satisfactorily, it was sent back to Brackley, and accepted by sender. Plaintiff sued the Company in the Brackley County Court, when the Judge held that the Company had failed to complete their contract to deliver to consignee's mill. The Jury gave Plaintiff a verdict for full amount. The Company appealed, and on the new trial Chief Baron Pollock said — "The Judgment of the Court below was wrong, being founded upon the notion that the carrier was bound to deliver at the mill, notwithstanding the distinct, clear, and positive order that he was not to deliver at the mill. It is quite clear that the consignee of goods may receive at any stage of the journey; and I think if sender directs goods to be delivered at a particular place, it is a contract to deliver the goods at that place and not elsewhere. The contract is to deliver the goods there unless the consignee shall require them to be delivered at some other place." Judgment for Company. — Tried in Court of Exchequer, November 18, 1861. — From Law Journal RepoHs, vol. Z\,page 92. 414 delivery of goods. Whether Delay ]n Carriage, and what Amount of Delay, Constitutes a Ground for Refusal of the G-oods and A Eight to Recover the Value from the Carrier. [(See also under "'Refused Goods.*') Case No. Lci-ine V. Great Western (1868) 233 Story on Bailments, sec. 582, p. 417. Case No. Teats V. Newry Steam Pacl-et Company (1872) ... DIGEST. In Levine v. Great Western (i86S) a truss of hawker's goods, from Cardiif to Southampton, leaving Novem- ber 18, had not arrived November 29, wdien the hawker left the tow^n, and afterw^ards sued for value of truss. Chief Baron Kelly held that Plaintiff, in point of la"w, had a right to say to the Company, having waited several days, "I will not now accept them. If you have them here noiv.i at this moment, I am ready to take them ; but if you have them not here now, I will not accept them ; you must keep them yourself and pay me the value." In Teais v. Newry Steam Packet Company (I872) a truss was refused by consignee owing to delay. Chief Justice "Whiteside said — " Plaintiff's right to sue for damages (supposing the original contract of carriage good) would have depended upon her taking the goods and trying to dispose of them. She might then have brought an action for loss incurred by the delay." 233. Levine \ . Greed Western Railway Conijjany. — Action for £73 Gs. for loss of a truss of sailors' pilot coats and other clothes. Plaintiff, a London hawker, sent this truss to Cardiff, but finding he could not sell his goods there, he delivered the truss at Cardiff on November 18 to go to Southampton. He was both sender and consignee, and the truss was consigned «Hill called for." The clerk at Cardiff said it would take two days to reach Southampton. Plaintiff went to Southampton, and applied for the truss on November 20, and remained there DELIVERY OF GOODS. 415 until 29th November, but it had not arrived. He then left without leaving any address, and told the station-master he would return to London, and the goods would now be useless to him, and he could not take them. The truss did reach Southampton about the 1st or 2nd December. The case was first tried at Westminster before Chief Baron Kelly and a SjDecial Jury. It appeared the Company had paid £5 into Court for the delay, and Plaintiff (probably before the trial came on) accepted the £5. The Company contended that Plaintiff could not, after having accepted the money paid into Court in satisfaction of his claim for damage from delay, throw up the goods and claim their value, thus having two actions for the same goods. The Judge held that Plaintiff, in point of law, had a right to say to the Company, having waited several days, " I will not now accept them. If you have them here now, at this moment, I am ready to take them ; but if you have them not here now, I will not accept them ; you must keep them yom-selves and pay me the value." Thereupon it was agreed that the verdict should be entered for Plaintiff for £15, and that the goods should be returned to him, the Company to appeal to the Court of Exchequer on the point raised as to the acceptance of the £5 being a full discharge. On the appeal case Baron Martin said — "The whole question arises on the first count, which is a count not only for damages for unreason- able delay in delivery, but also for non-delivery of the goods altogether. If you could have satisfied the Jury at the trial that the Plaintiff had no other cause of action against the Company than in respect of damages for their delay in the delivery of the goods, then the Company would have succeeded. Here there is a cause of action on the first count which was not satisfied by the Plaintiff's acceptance of the money paid into Court." Baron Pigott concurred. Judgment of Court below confirmed against the Company. — Tried in Court of Exchequer, April 20, 1868.— From Laiu Times Reports, vol. 18, page 295. 416 DELIVERY OF GOODS. Consignee's Carter's Signature taken for G-oods before SUCH Goods had been Shown to him, or put at his Disposal, or Actually Delivered. Case No. Evans y. Bristol and Eseeter (1SG2) 234 DIGEST. In Evans v. Bristol and Exeter (i862) consignee's carter went to the station and got several packages of goods. He swore that he had signed the Company's book for the goods before he went to get the goods (in the warehouse), and it did not appear that he checked the packages with the note on j)utting them into his cart. A box of opium was found missing, and the carter, although he signed for it, swore he did not get it. On appeal, it was held to have been rightly left to the Jury to say whether or not the carter got the box, and the Jury decided he did not get it. 234". Evans v. Bristol and Exeter Railway Corrvpany. — Action for loss of a chest of opium. This chest was part of a consignment sent fi'om London to Exeter. The Plaintiff, as usual, sent his man with a cart to bring the goods from the railway station. The Company's servants stated that all the goods were brought down to and placed in the cart inside the station, and that the carter received a pass from the proper officer to enable him to leave the station with such goods, and signed a book in which the delivery of all the goods was acknowledged. The man, however, swore that he had signed the book as a matter of form before he went to get the goods, and it did not appear that he had examined the list and compared it with the articles in his cart, nor that he had complained at the time that anything was missing. The suggestion on the part of the Company was that he had received all the goods, and that the box of opium had dropped out of the cart or had been otherwise lost on its way to the Plaintiff's premises. Baron Channel! left the question to the Jury, telling them DELrV'ERY OF GOODS. 417 that they must be satisfied that the goods had been delivered to the Plaintiff's man. They found for the Plaintiff. A rule was obtained to set aside this verdict on the ground of mis- direction as to the delivery of the goods, for that the learned Judge should have directed the Jury what would have amounted to a delivery, and that the direction was limited to the question whether the Plaintiff's man had actually received the goods into his possession. On the appeal case Chief Baron Pollock and Barons Martin and Channell were all of opinion clearly that the question was for the Jury, and had been rightly left to them without any misdirection. Judgment against the Company. — Tried in the Court of Exchequer, January 11, 1862. — From Weekly RepoHer, vol. 10, page 359. Delivery of G-oods "To Order" — Legal Conversion of GfooDS BY Carrier owing to Wrong Delivery. {See also " Sloppage in Transitu.'^) Story on Bailments, sec. 583 Toul Y. Harbottle (1791) Laclouch V. Towle (1800) " The Tijress" (18G^) Eeugh v. L. ^ N. W. (1870) .. Carr v. L. Sc N. Western (1874) Pooley V. G. E. (1876) In these actions I must refer the reader to the full abstract of the cases, as no deductions can be drawn without repeating nearly the whole facts of each case, story on Bailments, sec. ^182. — "Where a common carrier has been gnilty of negligence, whereby the owner of the goods has sustained an injurj', the subsequent acceptance of the goods by the owner is no bar to an action for such injury, for nothing short of a release or satisfaction constitutes such a bar. But it may be given in evidence in mitigation of damages, so as to limit the amount to the actual loss sustained by the owner." Case Case. No. No — Hoare v. G. Western (1877) 238 235 Hiort X. L. ^ N. Western (1877) 239 236 M'Bride v. Mid. G. W. (1877) ... 240 107 Interpleader Act, 1^2 Will. IV., 254 cap. 58, sec. 1; 23 4" 24: Vic, 237 cap. 126, sec.l2, pages 157 130 and 158 — 235. Yoid V. HarhoUle. — Action for value of goods de- livered to wrong person — London to Gravesend. An unknown person applied for the goods from the steam packet carrier at 27 418 DELIVERY OF GOODS. Graveseud, aud he delivered them iu error. Lord Kenyon said — " I agree that when a carrier loses goods by accident trover (conversion) will not lie against him; but when he delivers them to a third person, and is an actor, though under a mistake, this species of action may be maintained." Judgment against the carrier. — Tried at Nisi Prius, at Westminster, June 7, 1791 . — From Peahens Nisi Prius Cases, 'page 68. 236. Laclouch V. Towle. — Action against a carrier for a consignment of goods delivered to him to be carried from Maidstone to London. While the goods lay at his warehouse u person came there who said the goods were his, and claimed them from the carrier. The carrier said he could not deliver them, but that if he was indemnified he would keep them, and not deliver them according to order. An indemnity was given, and the goods not being delivered according to order, the party by whom they were delivered to the carrier brought an action against the carrier. Mr. Justice Gould, at ]Maidstone, would not permit him (carrier) to set up any question of property out of the Plaintiff, and held that he, having received them from him (Plaintiff), was precluded from questioning his title or showing a property in any other person. Lord Kenyon admitted the authority of this case cited as law. — Tried at Nisi Prius, February 21, 1800. — From^ Espinasse^s Reports, vol. 3, j^cige 115. 237. Oarr v. London and North Western Railway Com- pany . — Action for £10, value of 1 5 casks bleaching powder, B 16/30, advised by the Company, but really never received by them. It appeared there were two consignments of bleaching powder loaded on 5th July by the Bridgewater Smelting Com- pany in their siding at St. Helens— (1) 14 casks B 1/14; (2) 15 casks B 1/15. The practice was for the Smelting Company to give the Railway Company a consignment note of what they loaded, and the Railway Company signed for same, with remark " Not seen," and invoiced the goods to the destination station. The consignment note for the two lots gave in mistake the numbers of the 15 casks as B 16/30. There was really a third lot of 15 casks that were to be loaded and delivered to the Company marked B 16/30. On the 7th July the Smelting DELIVERY OF GOODS. 419 Company's clerk, finding he had the 1 a casks marked B 1 6/30 on hand, discovered his mistake in the note, and took to the Kailway Company's St. Helens office a corrected consignment note. Previous to this the two lots of casks had been invoiced to Waj^ping Station, Liverpool, consigned to Carr's (PlaintifiPs) " order," and an advice note from Wapping had been sent to Carr. On the discovery of the mistake of the nmnbers St. Helens advised Wapping, and Wapping sent Carr an advice note of the 15 casks B 1/15, instead of sending him a corrected advice of the two lots of 14 and 15 casks. The only indication that the second advice note was a corrected one and referred to the first one was the remark " Originally entered jjer om* in- voice 10 ^, 7th July, 1873." Seeing that consignee was to receive three lots of casks — B 1/14, B 1/15, and B 16/30— he considered the Company had advised him of the three lots being held to his order. The Smelting Company in August actually sent their account for the three lots, and were paid by acceptance. On the 26th August Plaintiff presented the two advice notes at the Company's office, and paid the warehouse charge on three lots of casks, and exx^ected to get delivery of three lots. He only got the two lots B 1/14 and B 1/15, and the lot B 16/30 could not be found, and then the m^istake was discovered. PlaintitF thereupon desired that if no such casks had been delivered for him to the Company none sucli should then be accepted by them on his account. The person to whom Carr had sold the 15 casks B 16/30 bought 15 other casks at £70, or £5 over the value of the missing casks. Plain- tiff's action was for the value of the 15 casks and damages to him on a count in trover, and, secondly, on a count alleging a liailment to the Company upon an undertaking by them to deliver to the Plaintiff's order (advice note) on demand. The case was first tried in the Court of Passage, Liverpool, when the Assessor directed a verdict for the Company, but found, on a question put to them, " that the Company knew of the mistake on the 9th July, and that there was no sufficient intimation by the Company to Carr of the mistake." They founded this answer upon the fact that the corrected advice note was not on paper of the same colour (query special form of corrected advice). Plaintiff appealed to the Court of Common Pleas, and contended 420 DELIVERY OF GOODS. in substance that the Company by the advice notes had negli- gently misled him, and were " estopped " or legally precluded irom pleading they never had the 15 casks to deliver. [The legal term is estoppel in pais.'] It apj^ears there are four kinds of estoppel in pais — " 1. If a person, by words or conduct, wilfully endeavours to cause another to believe in a certain state of things which such person knows to be false, and if the other believes in such state of things and acts upon his belief, he who knowingly made the false statement is estopped legally from averring afterwards that such a state of things did not exist. *' 2. If a person, either in express terms or by conduct, makes a representa- tion to another of the existence of a certain state of facts which he intends to be acted upon in a certain way, and it be acted upon in that way, in the belief of the existence of sucb a state of facts, to the damage of him who so believes and acts, such person is legally estopped from denying the existence of such a state of facts. " 3. If a person, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true representation, and that he was intended to a.ct upon it in a particular way, and if he, M'ith such belief, does act in that way to his damage, such person is legally estopped from denying that the facts were as represented. "4. If in the transaction itself which is in dispute A. has led B. into the belief of a certain state of facts by conduct of culpable negligence calculated to have that result, and such culpable negligence has been the proximate cause of leading and has led B. to act by mistake upon such belief to his prejudice, A. cannot be heard afterwards as against B. to show that the state of facts referred to did not exist." On the appeal case Justice Brett said — " We are of opinion the Plaintiff has failed to make out that the Company were estopped, and are of opinion the Judgment was properly entered for the Company. It cannot, as it seems to us, be truly affirmed that the Defendants intended any representa- tion of theirs to be acted upon by the Plaintiff in the way of re-selling the goods ; there is no evidence of a custom to re-sell upon the faith of such an advice note as a Raihvay Company sends to a consignee. The only intention on the part of the Company which can be properly inferred from the sending of an advice note is that the consignee should Send for the goods. If the first intention could be inferred, the Plaintifif did not in re-selling act upon any representation of the Company's, for he re-sold before they made any communi- cation to him ; in re-selling he neither acted upon nor was DELIVERY OF GOODS. 421 damaged by reason of any representation of theirs. And if the second intention be inferred, the Plaintiff did not act upon it by sending for the goods ; he never did send for them. And if it can be said that by means of the person to whom he sold he sent for them, he suffered no damage by reason of sending for them. Any damage which he suffered was by reason of the re-sale. Neither the payment of the warehouse rent nor of the invoice price can be relied upon as damage resulting from the conduct relied upon to support an estoppel, because either damage caii be rectified without the intervention of such an estoppel. There is no consideration for either payment ; both were paid under a mistake of facts." Judgment for Company. — Tried in Court of Common Pleas, November 25, 1874, and January 20, 1875. — From Laiv Journal Repoiis, vol. 44, page 109. 238. Hoare v. Great Western Raihvay Gorapany. — Action for 60 sacks pollard delivered to a wrong consignee — Thatcham to Pewsey. The sacks were intended to be sent to the order of James Farmer, but by mistake were misdirected to the order of Thomas Jeeves. On arrival, Jeeves refused the pollard, and one Jarvis applying for 60 sacks pollard, the station-master, seeing the names were very similar, delivered to Jarvis. The 60 sacks were part of 140 sacks pollard sold by Hoare to Farmer ; the other 80 sacks had been safely delivered to Farmer at Swindon. The Company maintained that the de- livery of the 80 sacks passed the property in the whole 140 sacks to Farmer, and that Hoare could not recover, as no con- tract existed between him and the Company, he delivering the pollard as agent for Farmer, the buyer. The Company con- tended there was no evidence of a breach of duty on their part as involuntary bailees. They were merely bound to act with reasonable care and caution. The consignment note contained the following printed condition : — " Consignment of Goods to he carried at Owner's Rislt. — The Great Western Railway liereby give notice that they have two rates for the conveyance of certain articles — one the ordinary rate, when they nndertake the ordinary liability of the carrier ; the other a reduced rate, adopted when the sender relieves them from all liability of loss, damage, or delay, except upon proof that such loss, damage, or delay arose /lorn wilful misconduct on the part of the Company's servants. 422 DELIVERY OF GOOlXS. • "To the Great "Western Railway Company. — Receive and forward the iimlermentiuued got)ds, to be carried at the reduced rate below the Company's (.rdinary rate, in consideration whereof I undertake to relieve the Great AVe?tcrn Railway Company, &c., from all liability in case of loss, damage, or mploy, and in some instances made fictitious sales. Plaintiffs pleaded " conversion " on the part of the Company wrongly de- livering the grain. The Company admitted a pre-delivery on Grimmett's order, but contended that Plaintifls sold the grain 424 DELIVERY OF GOODS. to Tarply, debited him iu their books, and gave him a " delivery order," and he (Tarply) acted upon it by giving another " delivery order " to Grimmett. Thus Tarply assigns to Grimmett, and Grimmett assigns to Sheldon and Eeeve, to whom the Company had really made delivery. Chief Baron Kelly said — " The Company have been guilty of no fraud and of no negligence. On the 19th November and 22nd November the two lots of 50 quarters and 10 quarters were misdelivered by the Company — that is, they were delivered to Grimmett upon some order or the other, or some apparent authority which he produced, but not upon any real authority, or any real or effective order. If Plaintiffs had thought fit to bring an action within two days, and it could have been pro- secuted to Judgment in that time, they might have recovered from the Company the value of the misdelivered grain. But on the 2ord November the circumstances totally changed the rights and relations of the parties ; for Plaintiffs sold the 60 quarters to Tarply and granted him a delivery order; that de- livery order has not been revoked, supposing that it were revocable. Senders sold the grain to Tarply on credit, and debited him with the amount in their books. Tarply was then entitled to the oats. Tarply then duly indorsed and assigned the oats to Grimmett, and Grimmett succeeded to his right in the oats. If at this time the oats had been at the station, and Plaintiffs had demanded them, and Grimmett had come witli the delivery order indorsed by Tarply and also demanded them, there can be no doubt in the world that it would have been Grimmett who would have been entitled to the oats. The question arises, Who is entitled to recover from the Comjmny the value of the oats ? Not Plaintiffs ; for they parted with the property in them, and granted an irrevocable delivery order to Tarply. The same applies to the other consignments which make up the claim." Baron Cleasby concurred. Judgment iu favour of Company. — Tried in Exchequer Division Court, Novernher 21 and 26, 1877. — Frorn Latv Times Reports^ vol. 38, jjage 424. Plaintiffs carried the case to the Court of Appeal. Lord Justice Bramwell said — " I may repeat what I have said in several cases before, that I never completely understood with precision DELIVERY OF GOODS. 425 or could exhaustively say what conversion was. No doubt, when the article is actually destroyed and consumed for the benefit of the converter, that would be a conversion both at law and in the ordinary sense of the term. But conversion has grown to be something utterly unlike conversion, and it has got to signify a thing which does not exist in nature which it is impossible to exhaustively define or describe. I cannot but think there was a technical conversion here, and technically also a cause of action, as it strikes me, against the Company for breach of their duty as warehousemen in delivering the goods without authority. To my mind, therefore, the Plaintiffs are entitled to nominal damages, and to nominal damages only. They are entitled to nominal damages because I take the law to be this : you could not purge yourself of a conversion, and I sup- pose cannot now ; if guilty of it you must pay some damages." Lord Justice Thesiger said — " The Company delivered the goods to persons who at the time had no authority to receive them, and without any order from the Plaintiffs so to do ; and although it is perfectly true that delivery was made in the expectation that subsequently a delivery order would be received from the Plaintiffs — which delivery order, in point of fact, was in a few days received — it seems to me that the previous unauthorised act, whether you call it misdelivery or pre-delivery, whether it constitutes, technically speaking, a conversion, or whether it constitutes only a breach of the con- tract of bailment or of the duties which flow from the bailment, was a wrongful act, in respect of which a right of action vested at once in the Plaintiffs, and that right of action once vested was not divested by the Plaintiffs afterwards giving that delivery order under which the Company might have done the act (of delivery) which they previously had done. The law presumes a legal damage in that Plaintiffs were deprived of their property in the goods from November 19 to November 24." Judgment in favour of the Plaintiffs, with Is. nominal damages and Is. for the technical conversion. Plaintiffs to iiay the costs.— TriecZ in Court of Ajjpeal, May 7 and 13, 1879. — From Laiu Times RepoHs, vol. 40, page 674. 24-0. M'Bride v. Midland Great Western Raikvay Com- pany. — Action for £'60 for alleged conversion of a waggon of 426 DELIVERY OF GOODS. potatoes, Foxford to Dublin. On or about May 9, a potato dealer in Dublin named INI'Bride made a contract to purchase two waggons of potatoes of six tons each from another dealer living at Foxford named M'Nulty, and M'Bride paid him nearly the whole of the purchase-money in advance. One waggon of tlie potatoes came all right, but the second one became the one in dispute. JM'Bride sent 60 empty sacks to Foxford to carry the last six tons of potatoes. M'Nulty loaded two waggons of potatoes at Foxford, intending one for M'Bride — (1) waggon 175, on May 12, containing 43 sacks; (2) waggon 1008, containing 60 sacks, May 11, 1877- and consigned them to Dublin to his (M'Nulty's) order. The waggons were both charged at the six ton waggon rate, but were not weighed by the Comjjany. 3I'Xulty swore there were actually six tons of potatoes in each waggon ; indeed, that waggon 175, although containing a less number of sacks, contained 6 tons 1 cwt. of potatoes. He admitted not weighing the sacks, but he professed to know the weight from having purchased the potatoes in open market in small lots by weight. A friend of M'Bride's in Foxford wrote him on the Saturday that he had seen the potatoes, and that waggon 1008, with the 60 sacks, contained potatoes of a better quality than those in 175 waggon. M'Bride met the passenger train on the Monday morning arriving at 5 a.m., expecting M'Nulty, who duly arrived. M'Bride then obtained from M'Nulty a written order for a waggon of potatoes. No. 107, as follows: — " Please give bearer, ]Mr. M'Bride, one waggon of potatoes, No. 107, and oblige, yours, Bernard M'Nulty. — To the IMid- land Great Western Eailway Company, this 14th ^May, 1877." M'Bride swore he asked for an order for the waggon containing the 60 sacks (he believing, from his friend's letter, that it contained the best potatoes). M'Bride also demanded the Company's receipt issued at Foxford, which M'Nulty denied having taken up. M'Nulty swore he sold M'Bride the 43 sacks potatoes in waggon 175, but not having the Com- pany's receipt he forgot the number and wrote it as 107 ; that he had at the time in his pocket the Com^mny's receipt for the 1008 waggon, and had he intended to have given M'Bride that waggon he could have given him the receipt and had no DFLIVERY OF GOODS. 427 occasion to give a written order. ]\PBride on the ^Monday presented the order for waggon 107, and the Company's delivery clerk wrongly gave him the delivery note for waggon 1C08, containing the 60 sacks. This was the waggon M'Bride's friend had advised him to get. M'Bride at once paid the carriage on 1008 waggon, and was given the delivery docket, but he did not attempt to remove the potatoes until the Wednesday. In the meantime M'Xulty had sold the potatoes in waggon 1008 to Sweetman, and handed him the Company's receipt issued at Foxford. Sweetman at once applied for the potatoes, produced the Company's receipt indorsed by M'Xulty, and a duplicate delivery docket was made out ; and when ]\I'Bride on Wednesday applied for the potatoes in waggon 1008, half had already been delivered to Sweetman. M'Bride would not accept the potatoes in 175 waggon, and after some days,- when sale notice had been served, they were sold for £18 14s. 9d. M'Bride swore the sacks holding the 60 sacks potatoes in waggon 1008 were the sacks he sent to Foxford, while M'Xulty swore the sacks holding the 43 bags potatoes in waggon l7o were M'Brides sacks, and that he had the balance, seventeen sacks, at Foxford. M'Bride contended that the issue of the delivery docket and I the acceptance of the carriage was a transference of the potatoes I to him by the Company, and he was entitled to recover. The Company denied this. The Judge leaned to the opinion that the Company could not succeed unless they could show by evidence that the delivery order was obtained from I them by M'Bride liy a trick, or, legally speaking, by fraud. f The Company asked the Judge to direct a verdict for ! them on each issue separately, and submitted (1) that they were not setting up nor driven to rely on any doctrine of jus teHii, and that it is not necessary to charge the Plaintiff with fraud in his representations to the Company's clerk in order to entitle Hie Company to a verdict. (2) That as between M'Xulty and the Company, the waggon "f potatoes 1008 was M'Xulty's property unless the Company should receive M'Xulty's order for its delivery, and the Company would be liable to M'Xulty if they delivered it to anyone else 428 DELlVEllY 0¥ GOODS. before order. The order to deliver waggon 107 did not autho- rise the Company to deliver any other waggon, and the unauthorised act of the Company in accepting the freight from M'Bride did not vest the property in him, and there was no conversion by the Company of waggon 1008 as against M'Bride. The Judge seemed to lean to the opinion that if the potatoes had actually been placed in M'Bride's sacks, then the property had passed to him at Foxford, and that the Company could not possess a greater right in the potatoes than M'Nulty himself possessed. He considered the case was similar to those in 7 Ellis and Blackburn e's Eeports, page 705 (^Schuster v. ■ ]\PKellar\ and 4 Hurlstone and Norman's Eeports, 822 (Brown v. Hare). These were cases where goods had been carried by sea. The Judge left the following issues to the Jury : — (1.) Whether the 60 bags in which the potatoes were carried in waggon 1008 were the property of M'Bride or not ? (2.) Did M'Nulty direct the Company to deliver to M'Bride the 60 bags jiotatoes in waggon 1008 ? (3.) If not, was the conversation with M'Nulty such asj reasonably to lead M'Bride to believe, and did he believe, that] the potatoes he was to get were in the 60 bags ? The Company's counsel asked the Judge to take a note] that there was no evidence on No. 3 issue to go to the Jury. The Jury gave negative replies to each issue, and by so doing gave a verdict for the Company. — Tried in the Court of Exchequer, Dublin, November 30 and December 1, 1877, before Chief Baron Dalles. — Reported by Author. Cartln'g Agent's Caiiter Held to be the Company's Servant, AND THE Company Held Eesponsible for his Theft of Goods which were Undeclared and over £10 in Value. Case No. MacJiin y. London and Suvth Western (IMS) 88 (See case undei- " Declaration of Value.") DELIVERY OF GOODS. 429 Goods Addressed or Consigned "Till Called for." Case I Case No. No. Levine y. Great Western {186S) 233 | Chapman x. L. S,- N. W. (1880) 191 DIGEST. In Levine v. Great Western (ises) a trass consigned ''Till called for" was delayed. Consignee applied for it on November 20, and, being a hawker, waited until November 29 at Soutliampton, and then left the town without his truss. Chief Baron Kelly held that Plain- tiff, in point of law, hrd a right to say to the Company, having waited several days, "I will not noAV accept them. If you have them here now^ at this moment, I am ready to take them; but if you have them not here now, I will not accept them ; you must keep them yourselves and pay me the value." In Chapman v. London and North Western (I88O) two packages of drapery, " Till called for," reached destina- tion station on March 2o ; consignee called on 27th March, after the goods station and the goods had been burnt. The Company were held not liable, their liability of carriers having ceased, as they had become warehousemen, and their liability was confined to taking proper care of the goods, and a warehouseman ceases to he liable in cases of accident. ' When Delivery is jNIade by One Carrier to Another Carrier. {See also " Delivern of Passenger's Luggage.") Case I Case No. No. Garsidev. Trent and M.N.(1T32) 241 Kent v. Midland (I87i) 456 Midland \. Broinlnj (l8o6) ... 474 1 DIGEST. In Garside v. Trent and Mersey N". (1792) four pockets of hops were carried from Stourport to Manchester by canal, to go to Stockport. The hops were burnt in 433 DELIVEKY OF GOODS. canal warehouse the first night after discharge. It was the custom to keep the goods in the warehouse until the Stockport carrier called for them. The carrier was held exempt from liability for the destruc- tion of the hops, being held to be a warehouseman, and holding the goods until the proper carrier called for them. 241 . Garskle v. Trent and Mersey Navigation. — Action for the value of four pockets of hops destroyed by fire. They were carried by canal, Stourport to Manchester, consigned to a person at Stockport. Defendants' contract was to carry to Manchester, and there deliver to first carrier going to StoclqDort. The hops arrived safely at Manchester on 30th September, and that evening were put into Defendants' warehouse, where (together with other goods) they were consumed by an accidental fire that same night, and before any carrier came from Stockport to whom they could be delivered. The custom was to keep goods for Stockport in the warehouse until a carrier came from Stockport to whom they could be delivered. The Defendants made no charge for lodging and keeping the goods in their warehouse. On the appeal case Chief Justice Lord Kenyon said — " If the Defendants were considered merely as warehousemen, ther< would be no pretence to say that they were liable for such a: accident as the present. I do not see how we can couple th character of the carrier with that of the warehouseman, in which last the Defendants are not liable here, they not having been guilty of laches." Justice Buller said — " The keeping of the goods in the warehouse is not for the convenience of the carrier but of the owner of the goods ; for when the voyage to JNIanchester is performed it is the interest of the carrier to get rid of them directly, and it was only because there was no person ready at Manchester to receive these goods that the Defendants were obliged to keep them." Judgment for carrier. — Tried in Court of King's Bench, April 24, 1792. — From Burnford and East's Term RepoHs, vol. 4, page 581. It i DELIVERY OF GOODS. 431 If the Ow^eks of Cattle or Horses do not Take them on Arrival the Company are Justified in Sending them to Livery at Oa\'Ners' Expense. Case No. 0. Northern v. Stvaffield (1874.)... 752 Case No. Wood V G. N. (Ireland) (1880)... 731' DIGEST. In Gi'eat Northern v. SwaftieJd (is:"!) a horse arrived at Sandy Station at 10 p.m., and no person being there to receive it, and consignee's residence being sixteen miles away, the horse was sent to livery. Next morning a groom applied for it, but refused to pay 6d. liver}' charges. The horse remained at livery four and a half months, at a cost of £17. The Company ultimatelv sent the horse to consignee's residence, and sued him for the £17, and recovered it. Chief Baron Kelly said — " But no one Avas there to take the horse. What v/as the duty of the Company to do ? Had they any choice? They must either have allowed the animal to stand somewhere on their station until it was starved — a place of danger, where it would have been exceedingly im- proper to have allowed it to remain — or they must have turned it into the high road, to the danger of itself and all the Queen's subjects ; or they must have put it in safe custody, namely, under the care of a livery stable keeper who lived close at hand. I do not entertain a doubt that the Company are entitled to recover the money from the Defendant, for whose benefit they have incurred the expenditure." In Wood V. Greai Xortliern (Ireland) (isso), which, however, was only a Quarter Sessions case, the Judge held that the Plaintiff should have been at the station waiting to receive the horse, or applied within reason- able time after the arrival of the train, and that as he was not there the Company were justified and bound to put the horse to livery, as they had done ; and having done so, they had completed their contract, and their liability ended. 432 DELIVERY OF GOODS. Delivery of Cattle to Consignees. Case Case No. No. 750 Combe V. L. cS- .«?. ir. (1874) ... 749 686 Wood V. Q. N. (Irelana) (1880) 734 ) ... 723 Gordon v. G. W. (1881) 697 728 DIGEST. Wise\. Great IT. (18.'6j ... Hooth V, xVorM E. (18G7) Shepherd v. B. S,' E. (1868) Gill y. M.S. .j- L. (1873) 111 ]r/.sY V. Great Western (1856) a horse arrived at \yindsor ; it was overlooked, and remained in the horse-box until next day, when consignee applied for it. Chief Baron Pollock said — " The action was an attempt to throw on the Company that which was really occasioned by tlie person who sent the horse (not advising consignee). We think the mischief was within the notice, and that the horse being accepted under a special contract, the Company were not liable for any damage that might be done to him while re- maining in the station till somebody came for him." In Booth V. jSf. E. (18G7) cattle just unloaded from a truck, at night time, straj^ed on to the line and were killed. The cattle landing only admitted of one truck of cattle being unloaded at a time, and while the second truck was being shunted into position the animals already unloaded strayed. Owner's drover and nephew assisted at the unloading. Baron Martin said — " If the thing carried had been an inanimate thing, to be delivered into the hands of the person to whom it was sent, it might have been a different matter, but these were cattle that were merely let loose on the carriers' premises. It was a perfect fallacy to call that a delivery so as to put an end to the hability of the Company, if the yard was not a safe place." Chief Baron Kelly said — " If there had been a perfect and complete delivery on the cattle quitting the trucks, it did not discharge the Company from their liability to provide a safe and sufficient means of exit for the cattle." DELIVERY OF GOODS. 433 In Shepherd v. Bristol and Exeter (I868) the cattle reached London at 12 noon Sunday instead of 7 a.m. Cattle are not allowed to be driven through London streets on Sundays after 10 a.m. The cattle were penned by consignee on Company's premises, and two died before 12 p.m. Sunday night. Baron Blackburn said — " It seems to me the Company had nothing more to do as carriers after 2 p.m. on Sunday." It was thus held that delivery was made to and had been accepted by consignee on the cattle being penned. In Gill V. Manchester Sheffield and Lincolnshire (1873) a restive cow, on coming out of waggon, ran into a pig pen at end of cattle platform, jumped over rails of pig- pen on to the line, and ran into the tunnel and was killed : the owner was present. The Court of Queen's Bench held that the mischief was attributable to the porter, who, against owner's advice, let the cow out of truck before she had been quieted. In Combe v. London and South Western (1874) a colt, in being unloaded, got its leg in the opening where the flap of the waggon turned down. The groom, standing in the waggon, let the mare and colt free when the Company's porters said "All right." Justice Keatino- said — "The groom did nothing to take the matter out of the hands of the Company's servants ; he did not control them in the delivery of the horses, nor was it their business to be controlled by him." Judgment against Company. In Wood V. Great Northern of h^eland (isso), which, however, was only a Quarter Sessions case, the Judge held that Plaintiff should have been at the station waiting to receive the horse, or applied within a reasonable time after the arrival of the train, and that as he was not there the Company were justified and bound to 2)ut the horse to livery, as they had done ; and having done so, they had completed their contract, and their liability ended. In Gordon v. Great Western (issi) cattle, Waterford to Gloucester, were made " to pay " in error, as carriage 9ft 434 DELIVERY OF GOODS. had been really paid in Waterford. The Company refused for a day to deliver, and consignee recovered <£o5 for delay and injuiy, as Company were held not to be protected by the special contract. Delivery of Richards V. L. B. 4- S. C. (1849) Butcher v. L. ^ S. W. (1855) ... Mid. Railway v. Bromley (1856) Passengers' Luggage. Case No. 454 Kent v. Midland (1874) ... 455 Bergheim v. G. E. (1878) ... 474 Case No. ... 456 ... 453 DIGEST. In Richards v. London Brighton and Soudi Coast (i849) a lady's dressing-case, value £150, had been placed and was carried in the carriage under her feet. Being an invalid, she was carried out of the carriage to a hackney coach. When the hackney coach got to the house the case was missed. Justice Williams, on ap- peal, held that at the time of the loss the dressing-case was in the custody of the Company as carriers. " I must admit 1 think that before the dressing-case was lost the transit described in the declaration had come to an end. I do not mean to give an opinion whether the Company were obliged to do more than deliver the luggage on the platform. But I think if they oblige passengers by allowing their servants to carry luggage to coaches their liability continues." In Butcher v. London and South Wester?! (i855) a pas- senger had just alighted from the train with a carpet bag in his hand, and which had been carried with him in the carriage. The bag contained £400 in money. A Company's porter took the bag from the passenger,] and put it on the footboard of a cab. The cab drove off, and neither cab nor bag was afterwards traced.| The Chief Justice held that the case was governed b] Butcher v. Brighton Company^ which established that the delivery of the passenger and luggage must he in the ordinary mode on the arrival of the train. Parties might accept something short of what was fixed by DELIVERY OF GOODS. 435 the contract. Wlietlier or not there was a perfect de- livery to the Plaintiff as he stood on the platform with his carpet bag in his hand was a question of fact for the Jury. The Company had not shown what they did with the bag. The Juiy had previously given Plaintiff a verdict for the £400. In Midland Railway v. Bromley (1856) a passenger arrived at Bristol, and was going on to Torquay by Bristol and Exeter Railway. The two Companies' stations adjoin. The luggage is carried across on hand trucks. Plaintiff saw the truck on which his luggage was placed pass into Bristol and Exeter station, but did not actually see it in the station afterwards. The luggage was lost. Justice Cresswell held that this case falls within the principle laid down by Justice Cole- ridge in Gilbert v. Dale. " The Plaintiff gives no evidence from which a Jury could determine on Avhicli of the two railways the portmanteau was lost or stolen." Judgment for Company. In Kent v. Midland (1874) a portmanteau and carpet bag were lost at Birmingham Central Station. Owner had arrived from Bath, and was going to Chester. A London and North Western porter took the luggage from the Bath train- to the platform from whence the Chester train started. At Stafford the loss was dis- covered. Chief Justice Cockburn held that delivery had not been made to the London and North Western Company. " The luggage when last seen was not out of the custody of the Midland Company. They were bound (Plaintiff held a through ticket) to have it conveyed to the carriages of the London and North Western Company, and for that purpose they were entitled to the services of the porter of the latter Company, who must for the occasion be taken to be their own servant." In Bergheini v. Great Eastern (1878) a passenger about to leave by a train from Shoreditch Station directed a Company's porter to place his bag on the seat of the carriage. The porter did so, and said the bag would 436 DELIVERY OF GOODS. be safe, and that lie should be there himself until the train started. Plaintiff then went to the refreshment room, and on his return the bag had been stolen. Lord Justice Cotton said no negligence on either side had been found, and held that the Company cannot on principle be held to have undertaken the liability of common carriers in respect of the Plaintiff's bag — that is, to have contracted to become insurers of it ; and the Court is not bound by the authorities, Butcher V. London and South Western and Richards v, London Brighton and South Coast. (This, although not a case of delivery, is inserted here, as in a measure it over- rules the cases of Butcher and Richards in respect to the Companies' liability for luggage taken by passen- gers into their carriage.) Eefused Goods — Whether Damage or Delay Constitutes A Ground for the Complete Eefusal of the Goods, AND A Right to Sue for and Recover their Full Value from the Carrier. Kingston v. Preston (1781) Jones V. BarMerj (1781) Farns^vorth v. Garrard (1807) ... SMels V. Davis (1814) Cleworth v. Picltford (1840) Norman V. PJdUips (ISio) Cort V. Ambergate N. Sf B. (1851) Garrett v. Melhuish (1 858) Case No. 244 245 242 250 247 246 243 253 DaMn v. Oxley (1864) Meyer Y. Dresser (186i) Levinev. G. W. (1868) Beugli V. L. ^ N. W. (1870) ... Teats V. D. cj- N. 8. P. (1872) ... Horn V. Jf/d/and (1872) Rohinson v. Knights (1873) Case No. 252 248 233 254 8 255 249 Merchant 8. Co. v. Armitage (1873) 251 A question of great difficulty arises with carriers when goods, having been carried to their destination, are from damage, delay, or otherwise refused by the consignee. The consignee may be influenced in this course by some event having passed rendering the goods less saleable, or perhaps in some previous case having had a difficulty in recovering compensation from the carrier, and therefore the consio;nee insists upon the act of acceptance of the goods being con- temporaneous with the compensation for the damage. DELR'ERY OF GOODS. 437 The question then arises as to what is the best thing for the carrier to do. The injury complained of frequently arises on a through joui'ney, and before the goods have reached the terminal carrier who tenders the packages for delivery. He is naturally indisposed to pay money that he may never recover, before he has had time to inquire into the origin of the damage and con- sulted with his fellow carriers through whose hands the goods passed before he received them. In the meantime he desires to complete the delivery and free himself of the charge of the goods. This is really to the advantage of all persons concerned, because the damage from delay in unpacking the goods may lead to further deterio- ration, especially where the goods are of a perishable nature. The Avi'iter found a practice in force with his Company whereby the difficulty has for many years been generally met. If the consignee cannot be persuaded to accept his goods and lodge a claim for the injury he considers he has sustained, he is then served with a "Notice of Sale," stating that the goods wdll be sold for the carriao-e and storao-e unless removed within so many days,- or, if perishable goods are in question, so many hours. This usually leads to the acceptance of the goods by the consignee. In some cases, however, where the carriage has been "paid" at the starting point, this course is not applicable until the goods have remained on hand a sufficient time for storage to accrue. The advice usually given to consignees by solicitors is that the goods must be accepted, and consignees can then sell them by public auction for their market value and sue the carrier for the loss. In the case of damage to goods a trader cannot sue for and recover the entire value of the goods when the carrier has been and is able and willing to deliver such goods, although in a damaged state. Neither can a trader safely sue for and recover for damage to goods until he shall have first unpacked and examined them so as to be able to estimate with accuracy the real extent of the damage. The following cases bear on this question, but it must be borne in mind that these cases were 438 DELIVERY OF GOODS. decided before the introduction of tlie new Judicature Acts. Previous to the Judicature Acts, although in certain cases where beneficial services had been per- formed it was held that the Plaintiff was entitled to recover to the extent of the benefit, and that only when there was no benefit there should be no pay {FarnsicortJi v. Garrard)^ yet it was decided that this rule was not applicable to a claim for carriage for goods damaged in transit, and that in such cases, while the carrier was entitled to recover the full amount of the carriage, the consignee or owner of the goods must bring an independent action against the carrier for the damage to the goods. But now, under the Judicature Acts and Rules, the necessity of bringing cross actions has been to a great extent abolished, and a Defendant may generally set up, by way of set-off or counter-claim, any right or claim against the Plaintiff. See section 24, sub-section 3, of the Act of 1873 (English) — section 27, sub-section 3, Act of 1877 (Irish) ; Order 19, Rule 3 (English), and corresponding Schedule Rule 22 (Irish) ; and Order 22, Rule 10 (English)— Order 21, Rule 10 (Irish). The words of Order 19, Rule 3 (English), Schedule Rule 22 (Irish), are — "A Defendant in an action may set off or set np, by way of counter-claim against the claims of the Plaintiff, any right or claim, whether su(?h set-off or counter-claim shall have the same effect as a statement of claim in a cross action, so as to enable the Court to pronounce a final judgment on the same action, both on the original and on the cross claim. But the Court or a Judge may, on the application of the Plaintiff before trial, if in the opinion of the Court or Judge such set-off or counter-claim cannot be conveniently disposed of in the pending action or ought not to be allowed, refuse permission to the Defendant to avail himself thereof." Thus, in an extreme case, the carrier, rather than allow himself to be sued for the entire value of the goods, or rather than be compelled to retain charge of the goods for an unlimited period of time at con- signee's pleasure, can raise the question himself in a Court of law, can recover his carriage, can get rid of the goods, and can have the damage to the goods fixed and determined by a Jury, and so end the transaction. DELIVERY OF GOODS. 439 A I^ERSON CAN, IN SOME CaSES, SuE ON AN IMPERFECTLY COM- PLETED Contract, and Kecover to the Value of his Work Done. DICIEST. In Kingston v. Preston (irsi) Lord Mansfield said — " There are a third sort of covenants, which are mutual conditions to be performed at the same time ; and in these, if one j^arty was ready and oiFered to perform his part, and the other neglected or refused to perform his part, he who was ready and ofi'ered has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act." In Jones v. Barllcy (i7si) Justice Buller said "that where something is covenanted or agreed to be per- formed by each of two parties at the same time, he who is ready and ofi'ered to perform his part, but was discharged by the other, may maintain an action against the other for not performing his part." In Farnsicortli v. Garrard (i807) the Plaintiff, a builder, had rebuilt the front of a house for Defendant, which was out of perpendicular and likely to fall, and Plaintiff sued for the damage. Lord Ellenborough said — " The Plaintiff is to recover what he deserves. If there has been no beneficial service, there shall be no pay ; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the Plaintiff's demand, leaving the Defendant to his action for negligence.'" In Cort V. A. A^. cf* Boston Railway (issi) the Plaintiff', a contractor, had contracted to supply to the Company 3,900 tons of iron chairs, ])ut owing to the Company not raising their capital they could not proceed with their line, and only took 1,787 tons of the chairs. The Company Avould not pay for the chairs they had received because the contract had not been completed. Justice Coleridge held — " The sender had been desirous and able to complete the contract, and he might main- 440 DELIVEKY OF GOODS. tain an action against tlic pnrchaser for breach of con- tract, and that he is entitled to a verdict on pleas traversing allegations that he was ready and willing to perform the contract ; that the Defendants refused to accept the residue of the chairs, and that they pre- vented and discharged the Plaintiif from manufacturing and delivering them." In like manner a carrier may be able and willing to complete the contract of car- riage by delivering the goods, although deficient in quantity, while the consignee may refuse to accept. 24-2. FarnsivoHh v. Garrard. — Action of assumpsit for work and labour done and materials supplied. The Plaintiff had rebuilt the front of a house for the Defendant, but when finished it was considerably out of the per- pendicular, and, according to several witnesses, in great danger of tumbling down, though others said it might stand for many years. The action was for work and labour done and materials found. Lord Ellenborough said— ■" The Plaintiff is to recover what he deserves. It is therefore to be considered how much he deserves, or if he deserves anything. If the Defendant has derived no benefit from his services he deserves nothing, and there must be a verdict against him. There was formerly con- siderable doubt upon this point. The late Mr. Justice BuUer thought (and I, in deference to so great an authority, have at times ruled the same way) that in cases of this kind a cross action for the negligence was necessary, but that if the work be done the Plaintiff must recover for it. I have since had a con- ference with the Judges on the subject, and I now consider this is the correct rule — that, if there has been no beneficial service, there shall be no pay ; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the Plaintiff's demand, leaving the Defendant to his action for negligence. The claim shall be co-extensive with the benefit. If the wall will not stand, and must be taken down, the Defendant has derived no benefit from the Plaintiff's services, but has suffered an injmy. In that case, he might have given DELIVERY OF GOODS. 441 him notice to remove the materials. Eetaining them, he is not likely to be in a better situation than if the Plaintiff had never placed them there ; but if it will now cost him less to rebuild the wall than it would have done without these materials, he has some benefit, and must pay some damages." Verdict for Defendant. — Tried at Nisi Prius, December 8, 1807. — From CampbeWs BepoHs, vol. \,'page 38. 24-3. GoH V. Amber gate Nottingham Boston and Eastern Junction Raihvay Company.— Auction in respect to a contract where the Plaintiff contracted to supply 3,900 tons of ii'on chairs to the Defendant Eailway Company for the construction of their line. The chairs were to be delivered in lots as required. It appeared the Company had not succeeded in obtaining the necessary capital, and were unable to go on with the construction of the line, and from time to time stopped Plaintiff in the com^se of manufacturing the chairs, requiring him to send forward very small quantities. At last the engi- neer said that if the Plaintiff had 100 tons of chairs already made he might send them, but he was not to make any more, as they would not be wanted, for the Company had as many as were necessary to carry the line to Grantham. At this time the quantity of chairs delivered was 1,787 tons. The Plaintiff now claimed the sum of i£12,100 for the delivery of the 1,787 tons of chairs. In defence an endeavour was made to show that the Plain- tiff had not the necessary means to complete his contract, and that the delay and final cessation took place with his concur- rence. On the first trial Justice Coleridge, in charging the Jury, said, as to damages, the Plaintiff, if he had a verdict, was entitled to be put in the same position as if he had completed his contract. The Jury found for the Plaintiff, damages £1,800. The Company appealed, and on the appeal case Lord Chief Justice Campbell said — " Upon the whole, we think we are justified on principle, and without trenching on any former decision, in holding that when there is an executory contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods contracted for, gives notice 442 DELIVERY OF GOODS. to the sender not to manufacture any more, as he has no occa- sion for them and will not accept or pay for them, the sender having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of contract, and that he is entitled to a verdict on pleas traversing allegations that he was ready and willing to perform the con- tract ; that the Defendants refused to accept the residue of the goods, and that they prevented and discharged the Plaintifi' from manufacturing and delivering them. We are likewise of opinion that in this case the damages are not excessive, as the Jury were justified in taking into their calculation the chairs which remained to be delivered and which the Company refused to accept. The obligation was incumbent upon the Company to accept, the whole of the residue." Judgment against the Company. — Tried in the Court of Queen^s Bench, May 25, 18.51. — Froin Adolphus and Ellis's Queen's Bench Reports, vol. 17, jxcge 127. Q.A-A-. Kingston v. Preston. — Lord Mansfield said — " There are three kinds of covenants — first, such as are called mutual and independent, where either party may recover damages from the other for the injury he may have received by a breach of the covenant in his favour, and where it is no excuse for the Defendant to allege a breach of the covenant on the part- of the Plaintiff. Second, there are covenants which are conditional and dependent, in which the performance of one depends ui:)on the prior performance of another ; and, therefore, till this prior condition is performed, the other party is not liable to an action on his covenant. There is also a third sort of covenants, whicli are mutual conditions to be performed at the same time ; antl in these, if one party was ready and offered to perform his part, and the other neglected or refused to perform his part, he who was ready and offered has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first, act." — See Douglas's King's Bench Reports, 1781, page 664. 245. Jones V. Ba7'kley.— Action in respect to non- performance of a contract. It was held in this case bv Justice Bullor that where som«^- DELIVERY OF GOODS. 443 thing is covenanted or agreed to be performed by each of two parties at the same time, he who is ready and offered to perform his part, but was discharged by the other, may maintain an action against the other for not performing his part. This decision was upon the principle clearly laid down in Kingston v. Preston, and it would thus appear, in a contract for the carriage of goods, where the consignee refuses to accept the goods, an action will lie against him for not performing his part, of the contract. — Tried in the Court of King's Bench, June 19, 1781. — From Douglas's Reports, jjage 659. 2<4-6. l^orman v. Phillips. — Action in respect to refused goods between the sender and consignee. Plaintiff sold Defendant, a builder at Wallingford, some timber. The order was a verbal one, and on arrival of the timber at Wallingford Station, consignee refused to receive it. On the appeal case Baron Alderson said — " If it had not been for the case of Bushel v. Ti^ieeler, I should have said there was no evidence whatever of acceptance for the Jury. The true rule appears to be, that acceptance and delivery under the Statute of Fraud means such an acceptance as precludes the purchaser from objecting to the quality of the goods, as, for instance, if, instead of sending the goods back, he keeps or uses them. Here the goods were not in the possession of the party himself. Thus the same rule would hold if they were delivered to a general agent or to a party who is authorised by him to examine the quality of the goods. But the carrier is only an agent for the j)urpose of carrying, and here tlie purchaser himself immediately refused to take the goods. If a carrier is not originally an agent to accept the goods, he cannot be made BO by mere lapse of time. After the case of Bushel v. Wheeler, I cannot say there is no evidence of acceptance to go to the Jury; but I think that a verdict for the Plaintiff on such facts as those which exist in the present case is clearly not war- ranted by the evidence, and the Court will therefore set aside the verdict found for the Plaintiff as not warranted by the evidence." — Tried in the CouH of E-jcchequer, June 11, 1845. — From Meeson and Welsby's Reports, vol. 14, page 277. 44-4 DELIVERY OF GOODS. 24-7. Cleivoi'th V. Pickford. — Action for work and labour done on a special contract. The Plaintiff was a boatman em- ployed by Pickford & Company, carriers, and the condition of his hiring was as follows : — Plaintiff was hired by Defendants as master of a canal boat under and by virtue of an express con- tract and agreement made on the 1st January, 1835; and said contract stipulated that as master of the said boat he was to be fully and absolutely responsible to the Defendants for the pre- servation, safety, and due delivery of all goods taken on board by him, and he was to be charged for all pilferages of, or damages, or loss whatever to or in respect of any goods then under his charge, by whomsoever committed or sustained, and from whatsoever cause, so as and that the amount of the said pilferages or damages so sustained, although not actually paid by the Defendants, were to be deducted from his wages or other demand of his against the Defendants, and might be pleaded or set off accordingly. On the 5th February, 1835, a pipe of wine, value £100, was loaded in Plaintiff's boat, to be carried from London to Leek. During the transit certain of the contents of the said pipe of wine, viz., 20 gallons, were pilfered and lost out of the said pipe, and water substituted in lieu thereof, whereby the said pipe of wine was greatly damaged and injured to the extent of £50, which exceeded the amount claimed by Plaintiff for work and labour done. Chief Baron Lord Abinger said — " The plea states that the Plaintiff, by the original contract under which his services were rendered, agreed to accept in satisfaction and payment such sum as might be due after deducting any payments which the Defendants were liable to make in consequence of his negligence. If that was the contract, it was not a con- tract which entitled the Plaintiff to maintain an action of indebitatus assuTnpsit for his services." Baron Alderson said — " I am of opinion that this plea is either equivalent to the general issue, or else is a plea of set-off which has not been answered by replication, that being incon- sistent with the circumstances stated in the plea. The replica- tion says that the Defendants broke their promise without the excuse mentioned in the plea, but the plea does not offer an DELIVERY OF GOODS. 445 excuse for breaking the contract declared in it; it says the Defendants have not paid the Plaintiff because under the agreement between them they have a demand against the Plaintiff in respect of the damages sustained by them by reason of his negligence to a greater amount, which they are willing to set off." Leave to amend on payment of the costs, otherwise Judgment for the Defendants. — Tried in the Court of Exchequer, Michaelmas Term, 1840. — From Meeson and Welshy's Reports, vol. 7, page 314. Amount of Damage to Goods could not be Deducted from THE Carriage. ((See now the Judicature Ads and Rules cited he/ore, paije 438.) DIGEST. In Meyer v. Dresser (1864) 600 staves were found deficient in a ship, Meniel to London, being part of the cargo. It appeared they had been short shipped. The consio^nee deducted £41 Is. Gd. of the freio-ht as their value. Chief Justice Erie said — " It was clear the money claimed (by the carrier) was due under the contract. I think there was no right to deduct. I consider it to be established law that the freighter cannot set off against the amount of freight due to the shipowner the value of goods damaged, even by carelessness and negligence of the master and crew. The right, if any, is by cross action. This is the established laAV of England." In Robinson v. Knights (i873) a cargo of lathwood was carried, Iliga to London, for a lump sum of £315. Lathwood to the value of £16 19s. 9d. loaded on deck Avas washed overboard and lost. The consignee deducted the value, and the shipowner now sued for it. Justice Keating held — That the ship owner was, on delivery of the remainder of the cargo, entitled to the full sum of £315, irrespective of the fact that a portion of the cargo was deficient. 446 DELIVERY 01'' CfOODS. 24-8. Meyer v. Dresser. — Action for freight. Part of the goods were missing, and consignee claimed to deduct the value of the goods deficient from the gross weight. The cargo con- sisted of oak barrel staves from Memel to London, and on arrival of the ship at London 600 staves were not on board, they never having in fact been shipped. The Defendant therefore insisted upon deducting their value, £41 Is. 6d., from the freight due upon the cargo. On tlie first trial the Jury negatived the custom relied on by the Defendant, and gave a verdict for the Plaintiff for £37 6s. Leave was reserved to appeal. On the appeal case Chief Justice Erie said — " The charter- party and bill of lading were put in, and upon the Plaintiff's case it was clear that the money claimed was due under the contract. I think there was no right to deduct. Upon general principles of loss I think the right claimed has no existence. It is admitted that the 600 staves were never put on board. It was by a mere mistake they were left behind. I consider it to be established law that the freighter cannot set off against the amount of freight due to the shipowner the value of goods damaged, even by carelessness and negligence of the master and crew. The recent case of Dakin v. Oxley (15 Common Bench Reports, 646) is replete with references to learned authorities to that effect. The point decided there was that where the cargo had, through the misconduct of the master and crew, become so damaged in the course of the voyage as to be worth- less, and less than the amount of the freight on its arrival at its destination, the shipper could not abandon it to the owner for the fi-eight. But the authorities collected by the learned Judge who prepared that Judgment show that our law, in com- mon with the laws of most other mercantile countries, negatives the right of the owner of the cargo to set off damage to the goods against freight. Neither do I think such a set-off can be allowed against the freight due for other goods of the value of goods that are missing and have never been put on board. The right, if any, is by cross action. This'is the established law of England." Justice Byles said — " My Lord and my brother], Willes have called attention to the authorities in which, from Mondel v. DELIVERY OF GOODS. 447 iSteel (8 M. & W., 808) down to the last term in this Court, Dakin v. Oxley, and also in the Admiralty Com-t, it has been in effect determined that neither damage to the goods nor loss can be set off against the freight." — Tried in the Court of Common Pleas, May 6, 1864.— i^?w^ Scott's Common Bench Reports, vol. IQ, page 646. 24-9. Robinson v. Knights. — Action for recovery of freight for carriage of a cargo of lathwood. The total freight agreed to be paid for the carriage of the cargo of lathwood was u lump sum of £315. A quantity of the lathwood was loaded on the deck of the ship, and between Eiga and London, owing to rough weather, the deck load was washed overboard and lost, without any default on the part of the master or crew. The Defendant deducted £16 19s. 9d. freight on that portion of the cargo which had been lost, and the action was brought to recover the amount so deducted. On the first trial, in the Mayor's Court, London, a verdict was entered for the Plaintiff, leave to appeal being given. On the appeal case Justice Keating held — That the ship- owner was, on the delivery of the remainder of the cargo, entitled to the full sum of £31 o, irrespective of the fact that a portion of the cargo was deficient.— Tri'ecZ in the CouH of Common Pleas, May 31, 1873.— From Law Reports, Common Pleas, vol. 8, page 465. The Carrier can Sue for his Carriage and is not Confined TO his Lien where the Goods are not Value for the Carriage {i.e.. Empty Packages). DIGEST. In Shiels v. Davis (isu) the earner sued for his carriage- of butter that had been damaged by bad stowage. Chief Justice Gibbs held that the bad stowage of the goods was the subject of a cross action, and did not afifect the right to the freight, and gave the carrier a verdict for his whole demand. In Daldn v. O.rh'n (18G4) Chief Justice Willes said — k 448 DELIVERY OF GOODS. "The doctrine that the cargo is the sole and exclusive security for the freight, to which the shipowner ought to be contented to look, and for which the merchant ought to be allowed to free himself from any responsi- bility, must now be considered as exploded, upon the plain ground that the contract to pay for the carriage of a thing in money cannot be satisfied by a concession of the thing itself in a damaged state to the carrier against his will." In Merchant Shij^ping Company v. Armitage fisrs) a ship, Cochin to London, took fire on the voyage, and the ship was scuttled and the general cargo injured. The freight on the damaged portion of cargo was estimated as £1,153. The contract of carriage was a lump sum of £5,000. Defendant refused to pay the £1,153. Baron Bramwell held the shipowner could recover the £1,153, and Defendant would have to pay the freight and seek his remedy by a cross action. 2 5 O . Shiels V. Davis. — Action for the freight of a quantity of butter carried in a general ship, and received under a bill of lading. The defence proposed to be set up was that the butter had been injured by bad stowage to a degree much beyond the amount of the freight. Chief Justice Gfibbs held that the bad stowage of the goods was the subject of a cross action, and did not affect the right to the freight, and gave Plaintiff, the carrier, a verdict for his whole demand. — Tried at Nisi Prius, Michaelmas Term, 1814. — FroTii CamjjheWs RepoHs, vol. 4, page 119. 251. The Merchant Shipping Company v. Armitage. — Action for the recovery of freight on a general cargo loaded from Cochin to London. During the voyage the ship was found to be on fire, and the captain put into Table Bay, the nearest port of refuge. In order to extinguish it, it was found expedient to scuttle the ship, and the ship was scuttled in Table Bay and the fire extinguished. The water was then pumped out, and the greater part of the cargo unladen, but it was found to be greatly injured by fire and water, and was consequently sold. DELIVERY OF GOODS. 449 The contract for the freight was a lump sum of £5,000. The Defendant refused to pay Plaintiff more than £3,847, desiring to deduct £1,153 freight upon the damaged portion of the cargo. The case of ''Norway'' (3 Moo. P.C, (N.S.), 245) was quoted as a similar case. It was held that the shipowner was entitled under the charter-party to the full sum of £5,000. Baron Bramwell said — " Suppose that £5 worth of goods had been stolen by the crew, that would not be within the exceptions. Then would it hav^e been possible to have said that the whole lump sum was lost ? Would not the common rule have applied. The Defendant would have had to 'pay the freight and seek his remedy by a cross action. If that is so, is it not very odd that the shipowner is worse off because he is not subjected to an action than if he had been subjected to an action? — that is to say, he is worse off because fire has caused the loss than he would have been if it had been owing to a dej)redation of the crew. Judgment for shipowner." — Tried in the Court of Exchequer Chamber, November 28, 1873. — From Laio Reports, Queen's Bench, vol. 9, page 99. If the Goods aee Entirely Destroyed, and there are None TO Deliver, the Contract cannot be Completed. DIGEST. In Garrett v. Melhuish (isss) a cargo of bricks had been carried, Jersey to Sydney, N.S.W., and owing to heavy machinery having been stowed upon the bricks, it was found on arrival they "were reduced to powder or otherwise useless. Vice-Chancellor Stuart, in Court of Appeal, held " there Avas no gi'ound to argue that the bricks were not actually delivered at Sydney," and -the shipowner could recover his carriage. "If there were any question as to the condition in which the goods arrived, if their owner thought that he had sustained any loss by reason of the misconduct or negligence of those to whom they had been entrusted for conveyance, he must seek his remedy in an in- dependent action." 29 450 DELIVERY OF GOODS. In DaUn v. Oxley (i864) Chief Justice Willes said — " In the case of an actual loss or destruction by sea, damage of so much of the cargo that no substantial part of it remains — as if sugar in mats, shipped as sugar and paying so much per ton, is washed away, so that only a few ounces remain, and the mats are worthless — the question would arise whether, prti*- tically speaking, any part of the cargo contracted to be carried has arrived. 252. Dakin v. Oxley. — Action in respect to a refusal of" goods owing to their deterioration and damage. In this case a cargo of coals was shipped from Newport, Monmouthshire, to Nassau, New Providence, and on an'ival at New Providence the same cargo of coals became, by the default of the master and mariners of the same vessel, and by reason of their negligence and unskilfulness in the management of the same vessel on the same voyage, and not otherwise, so greatly damaged and de- teriorated in condition that the said coals were then of less value than the amount of the said freight. Chief Justice Willes said — " The doctrine that the cargo is the sole and exclusive security for the freight, to which tlie shipowner ought to be contented to look, and by which the merchant ought to be allowed to free himself from any res]^x)n- sibility, must now be considered as exploded, upon the plain ground that the contract to pay for the carriage of a thing in money cannot be satisfied by a concession of the thing itself in a damaged state to the carrier against his will. Casaregis, who was bom at Grenoa in 1670 and died in 1737, after having been for more than 20 years a Judge of the Eota of Florence, says that in the case of culpable damage it is not competent to the merchant to abandon the cargo to the shipowner and claim the whole value, except where the goods are reduced to a state of uselessness or nearly so, clearly showing that the right of abandonment in such a case affects the amount of damages, and not the freight. " In the case of an actual loss or destruction by sea damage of so much of the cargothat no substantial part of it remains — as if sugar in mats, shipped as sugar and paying so much DELIVERY OF GOODS. 451 per ton, is washed away, so that only a few ounces remain, and the mats are worthless — the question would arise whether, practically speaking, any part of the cargo contracted to be carried has arrived. The task, however, of finding a uniform rule in foreign and commercial law is at present impossible. "Where the quantity remains unchanged, but by sea damaged, and the goods have been deteriorated in quality, the question of identity arises in a different form, as, for instance, where a valuable pictm-e has arrived as a piece of spoilt canvas, cloth in rags, or crockery in broken shreds, iron all or almost all rust, rice fermented, or hides rotten. In both classes of cases, whether of loss of quantity or change in quality, the proper course seems to be the same, namely, to ascertain from the terms of the contract, construed by mercantile usage, if any, what was the thing for the carriage of which freight was to be paid, and, by the aid of a Jury, whether that thing, or any, or how much of it, has substantially arrived. " If it has arrived, though damaged, the freight is payable by the ordinary terms of the charter-party, and the question of fortuitous damage must be settled with the under\vriters, and that of culpable damage in a distinct proceeding for such, damage against the ship captain or owners. " It would be unjust and almost absurd that, without regard to the comparative value of the freight and cargo when uninjm-ed, the risk of a mercantile adventm-e should be thrown upon the shipowner by the accident of the value of the cargo being a little more than the freight, so that a trifling damage much less than the freight would reduce the value to less than the freight ; whilst, if the cargo had been much more valuable and the damage greater, or the cargo worth a little less than the freight and the damage the same, so as to bear a greater pro- portion to the whole value, the freight would have been payable and the merchant have been put to a cross action. Yet this is the conclusion we are called upon by the Defendant to affirm in his favour, involving no less than that that damage, however trifling, if culpable, may work a forfeiture of the entire freight, contrary to the just rule of our law by which each party bears the damage resulting from his own breach of contract, and no more. " The extreme case above supposed is not imaginary, for it 452 DELIVERY OF GOODS. has actually occurred on many occasions, and notably upon the cessation of war between France and England in 1748, which caused so great a fall in prices that the agreed freight in many instances exceeded the value of the goods. The merchants in France sought a remission of freight, or the privilege of abandonment, but in vain — Boulay-Paty Cours de Droit, Com- mercial, 485 and 486. " It is evident from this rule of the law that there is neither authority nor sound reason for upholding the proposed defence." Judgment in favour of the captain of the ship to recover the freight notwithstanding the damage suffered by the coal. — Tried in the Court of Common Pleas, February 1, 1864. — From Scott^s Common Bench Reports, vol. 15, page 646. 253. Garrett v. Melhuis?t.— Action for freight on 33,000 bricks, carried from Jersey to Sydney, New South Wales. On arrival of the bricks at Sydney they were found to have been reduced to dust or otherwise rendered useless for building purposes owing to heavy machinery having been stowed above them. Vice-Chancellor Sir J. Stuart said there was no ground whatever for the argument that the bricks were not actually delivered at Sydney. It appeared that they were carried thither and placed at the disposal of the Defendant's agent. It had been argued that upon a contract to carry goods from one port to another at a fixed rate the sender may resist pay- ment of freight by showing, if he could, that through the fault of the shipowner or his agents the goods had sustained injury or had arrived in a state unfit for use ; such a doctrine never was, nor could it ever have been, the law of a commercial country. If there were any question as to the condition in which the goods arrived at the port of destination, if their owner thought that he had sustained any loss by reason of the misconduct or negligence of those to whom they had been entrusted for conveyance, he must seek his remedy in an independent action ; and that rule had been wisely established, for it was plain that an action against the shipowner for damages of this nature had no necessary connection with the DELIVERY OF GOODS. 453 previous contract made in respect of the freight. In the present case, therefore, he thought that the bricks having been carried to Sydney, the port of destination, the contract in respect to which freight was payable had been performed, and though the bricks arrived there in a decomposed state, yet that fact was no answer to the Plaintiff's claim ; consequently, the Chief Clerk having, in his opinion, arrived at a conclusion beyond all doubt correct, the motion must be refused as to these points, with costs. Judgment for carrier. — Tried in the CouH of Appeal, April 27, 1858. — From the Jurist Reports, vol. 4 (Neiv Series), page 943. Kefused Goods — Where the Questions of Theft and Depreciation m Value aeose. 254-. Heiigh V. London and Xorth Western Railway Com- pany. — Claim for value of a bale cotton duck fraudulently obtained from Company, Manchester to London. A man named Nurse, who had been in the employ of the Southwark India Eubber Company, fraudulently ordered the bale in that Com- pany's name. The senders executed the order, and the Eailway Company carried and tendered the bale to the India Kubber Company, whose man refused it. The Eailway Company took the bale back to their station, and sent the India Eubber Com- pany an advice note, by post, that the goods lay there at the risk and expense of the consignees, with a request that when they should send for the goods or give directions with respect to them, the person whom they should send or to whom they should give the direction should produce the advice note in question. By some means not stated. Nurse got this note, and produced it at the station and got the bale. The senders then commenced an action against the Company for the value of the bale, and the case was first tried before Chief Baron Kelly, at the Guildhall, June, 1869. The Jury found the Eailway Company had acted with due and reasonable care, and the verdict was entered for them. A rule was obtained by Plaintiffs to enter the verdict for them, on the ground that the delivery to Nurse was a conversion, or for a new trial, on the ground that the Judge should have directed the Jury that upon 4o4 DELIVERY OF GOODS. the refusal of the consignees to receive the goods the Company held them for the senders. On the appeal case Chief Baron Kelly said — " It is con- tended that the delivery to Nurse amounted in itself, , as a matter of law, to a conversion. No authority, however, has been cited in support of that proposition. It is true that, as a matter of law, a delivery to the wrong person by a carrier, while he is still clothed with the character of a carrier, has been held to amount to a conversion. But in this case the character of carrier had ceased when the delivery complained of took P'lace, and, whatever may have been the character which had then devolved upon the Company, it certainly was not the character of carriers. The Company may not improperly be described as involuntary bailees (warehousemen.) Under the circumstances, we cannot interfere with the finding of the Jury that the Company have acted with reasonable care and caution as to the goods in question, and therefore they are entitled to retain their verdict." Baron Martin — " The Company were involuntary bailees and nothing else. The goods, instead of being delivered at the place of delivery, are forced upon the Company's hands, and they, from being carriers, become persons in the condition of having goods forcibly placed in their hands against their will. If a person undertakes the duty of a carrier there is a most onerous duty imposed upon him. He becomes, in point of fact, an insurer ; and when he has done all he has contracted to do as carrier that condition ceases, and he may be in the con- dition of a man with goods forced upon him, and that imposes upon him the duty of acting as a reasonable and prudent man would act. What were the Company to do here other than they did ? I do not think it is possible to doubt that my Lord's direction to the Jury was the correct one. I think that the delivery to a person who was not entitled to it does not of necessity make such delivery amount to a breach of the carriers' duty. I think, too, that the verdict was right. I cannot see that there was any negligence or any improper want of care on the part of the carriers in doing what they did. They were misled by the same man who misled the Plaintiffs. I should have found the same verdict myself had I been on U\e Jury." DELIVERY OF GOODS. 455 Baron Channell concurred. Judgment for Company. — Tried in the Court of Exchequer, November 24, 1869, and January 1 1 and 12, 1870. — Frorii Law Journal Reports, vol. 39, page 48. 25 5 . IJ^orn V. Midland Railway Company, — Claim, £283, for difference in the price of 4,595 pairs of military shoes between 4s. and 2s. 9d. per pair, which were delivered to consignee on the morning of the 4th February, instead of the evening of the 3rd February, 1872. Plaintiffs, the senders at Kettering, were under contract to deliver the shoes in London to consignee on the 3rd February. Senders advised the station-master they were under contract to deliver by the 3rd February when delivering the goods. The shoes were for the French army, but owing to an unexpected cessation of the French and Prussian War the shoes were not required. Had the shoes, however, been delivered to consignee on the 3rd February, he was bound by his contract with senders to take them and pay 4s. per pair. It was admitted that the ordinary market value was less than 4s. per pair, that sum being contracted for owing to the special circumstances. On the refusal of the shoes. Plaintiffs could not possibly get more than 2s. 9d. per pair for tliem. The Company paid £20 into Court as a sufficient sura to cover the damages. On the first trial a verdict was given by consent for £'283, subject to a special case being -submitted for appeal. On the appeal case Justice Willes said — " According to Hadley v. Baxendale, which corrected the law as laid down in Brdstrode, the damages are to be limited to the damages ordinarily contemplated by both parties. Here there was no change in the (market) value of the goods between one day and the next. It is impossible to say that the Company's officer consented to be answerable for the particular damage. There was a penalty affixed (refusal of goods) for non-delivery in the contract l^etween the senders and the consignee, of which the Company had no notice, and of the origin and circumstances of which they had no notice. The Company's officer ought to liave been informed of the circumstances under which it became material that they should be delivered." Justice Keating said — " I come to the conclusion that this 456 DELIVEKY OF GOODS. was an exceptional state of things." The carriers had notice that the senders were under a contract to deliver by a particular time, and that they must be answerable for the ordinary consequences of not delivering at that time, but it is sought to fix upon them a peculiar liability arising from the exceptional circumstances of the contract. Justice Keating said — "I think the rule laid down in Hadley v. Baxendale ought not to be extended to such a case as this." Judgment for Company. — Tried in Court of Common Pleas {Second Division), June 6, 1872. — From Laiv Journal Reports, vol. 41, page 264. The Plaintiffs -apj^ealed to the Court of Exchequer Chamber, when Chief Baron Kelly, Justice Blackburn, Justice Mellor, and Justice Cleasby, forming the majority of the Court, affirmed the previous Judgment. Baron Pigott and Justice Lush dis- sented, and thought Plaintiffs should recover the full amount of the loss. Justice Lush said — " I think the Judgment of the Court below should be reversed. A common carrier cannot refuse to carry, but if it be sought to impose upon him an extra liability he may decline to do so or fix a higher rate. This seems deducible from Riley v. Home (5 Bing., 212), where Chief Justice Best says — ' As the law makes the carrier an insurer, and as the goods he carries may be injured or de- stroyed by many accidents against which no care on the part of the carrier can protect him, he is as much entitled to be paid a premium for his insurance of their delivery at the place of their destination as for the labour and expense of carrying them there. . . . He must take what is offered to him to carry to the place to which he undertakes to convey goods, if he has room for it in his carriage. . . The loss of one single package might ruin him. ... As the law compels carriers to undertake for the security of what they carry, it would be most unjust if it did not afford them the means of knowing the extent of their risk. ... A carrier has a right to know the value and quality of what he is required to carry. If the owner of the goods will not tell him what his goods are, and what they are worth, the carrier may refuse to take charge of them ; but if he does take charge of them he waives his right to know their contents and value.' In this case information was conveyed to the station-master that the Plaintiffs were J DELIVERY OF GOODS. 457 sending the goods under a beneficial contract, which would be lost by non-delivery. It is true the Plaintiffs did not say how much would be lost, but this was not necessary, for, as was said in Riley v. Home, ' it is the duty of the carrier to inquire of the owner as to the value of the goods, and if he neglects to make such inquiry he is responsible for the full value of the goods, however great it may be.' If he does not ask, it is too late to object. I think there was a special contract by which the Company assented to indemnify the Plaintiffs if this loss occurred." Judgment for Company. — From Law Journal MepoHs, Common Pleas, vol. 42, 2^(('g& 59. 458 GOODS ON HAND, WHETHER HELD UNDER THE CONTRACT "TO CARRY" OR AS WAREHOUSEMAN. Warehouseman's LiABiLfrv in General. Case No. Southcote's Case (1601) 256 Finucane v. Small (1795) 257 Maclcenzie y. Cox {I8i0) 258 Case No. Wilson V. Brett (lSi2) 259 Gihbin y. M'Midlcn (186^) ... 260 Searle y. LavericTc (1874,) 261 DIGEST. In Finucane v. SukiU (1795) Defendant had undertaken charge of a trunk at Is. per week, and goods had been stolen out of it. Lord Kenyon held Defendant not liable, the trunk being lodged in a place of safety ; and if such goods are stolen by the Defendant's own servants, that is not negligence sufficient, inasmuch as Defendant has taken as much care of them as of his own. In Gihhin v. M'-MiiJlen (i869) securities lodged with a banker, for which no consideration was paid for ware- housing, were stolen by the banker's cashier, who kept the key of the strong room. As there was no evidence of negligence on the part of the banker, he Avas held not liable. In Mackenzie v. Cox (i840) a dog locked in a livery stable was stolen during the night-time by some person having a duplicate key. It was held that the livery stable keeper had taken reasonable care, and was con- sequently not liable. In S('lea.— Tried in King's Bench, 1601. 2.5V . Finucane v. Small. — Action for the value of goods stolen out of a trunk entrusted to the care of Defendant, an upholsterer, by Plaintiff, an officer in the army. Plaintiff was to pay Is. per week for the warehousing or house rent. Lord Kenyon said — " To support an action of this nature, positive negligence must be proved. It has appeared in evi- dence in this case that the goods were lodged in a place of security, and where things of much greater value were kept. This is all that it is incumbent on the Defendant to do ; and if such goods are stolen by the Defendant's own servants, that is 460 GOODS ON HAND. not a species of negligence of a description sufficient to support this action, inasmuch as he has taken as much care of them as of his own." Judgment for warehouseman. — Tried at Nisi Prius, May 29, 1795. — From Espinasse's Reports, vol. 1, page 315. 258. Mackenzie v. Cox. — Action for value of a dog deposited with a livery stable keeper. The dog was locked up in a stable, and it appeared that in the night-time some person with a duplicate key opened the stable and stole the dog. Baron Gumey said to the Jury — " It is for you to say whether locking the dog into a stable was not taking reasonable care of it ; and if you think that it was, and that a dog-stealer came in the night and stole this dog, then the Defendant is not answer- able for this loss." Verdict for livery stable keeper. — Tried at Nisi Prius, December 1, 1840. — From Carrington and Payne's RepoHs, vol. 9, page 632. 259. Wilson W.Brett. — Action in respect to negligence where a person who rode a horse gratuitously, at the owner's request, for the purpose of showing him for sale, was held bound, in doing so, to use such skill as he actually possesses ; and if proved to be a person conversant with and skilled in horses, he is equally liable with the borrower for injury done to the horse while ridden by him. Baron Eolfe, on the appeal case, said — " The distinction I intended to make was, that a gratuitous bailee is only bound to exercise such skill as he possesses, whereas a hirer or borrower may reasonably be taken to represent to the party who lets, or from whom he borrows, that he is a person of competent skill. If a person more skilled knows that to be dangerous which another not so skilled as he, does not, surely that makes a difference in the liability. I said I could see no difference between negligence and gross negligence — that it was the same thing, with the addition of a vituperative epithet — and I intended to leave it to the Jury to say whether the Defendant, being, as appeared by the evidence, a person accustomed to the manage- ment of horses, was guilty of culpable negligence." The Jm-y had found for the Plaintiff, damages £5 10s., which was GOODS ON HAND. 461 affirmed. — Tried in the CouH of Exchequer, January 27, 1843. — From Meeson and Welsby's Reports, vol. 11, page 113. 260. Gihhin v. M'Midlen. — A customer of a banker deposited witli his banker securities for safe keeping. The securities were stolen by a cashier in the employ of the bankers. Held — That the bankers were not liable unless the loss was occasioned by their gross negligence. The customer deposited with his bankers a box containing securities, of which he kept the key. The box was kept in a strong room of the bank, where likewise was the manager's box, containing the securities of the bank. Access to the strong room was only obtained by passing through a compartment where a cashier sat by day and a mes- senger slept by night. In this compartment was a door leading to the strong room, which room had two iron doors opened by separate keys, which dming the day were kept by the cashier who occupied the compartment. This cashier stole the securities. The bank received no consideration for taking care of the securities of their customers. Held, under the circumstances — That there was no evidence of negligence to render the bank liable for the loss. — Tried in Privy Council, February, 1869. — From Latv Journal RepjoHs, Privy Council Cases, vol. 38, page 25. 261. Searle v. Laverick. — Action for damage to carriages warehoused by a livery stable keeper. He had contracted with a builder to erect on part of his yard a building, of which the lower part was to be a shed intended for the reception of carriages, and the upper part to be used for other purposes. Two carriages and horses of the Plaintiff were placed under the shed when the lower part of the building had been completed ; but whilst the contractor's workmen were still on the upper floor, the building was blown down by a high wind, and the carriages were injured. It was not disputed that the builder was one whom a careful and prudent person might trust, and that the Defendant had no notice of any negligence on the contractor's part ; but it was proposed to prove that owing to the neglect of the contractor and his workmen the building- was, in fact, unskilfully built and unsafe. The Judge at the trial ruled that the Defendant's liability was that of an ordinary 462 GOODS ON HAND. bailee for hire, and that all he was bound to do was to use ordinary care in the keeping of the Plaintiff's carriages ; and that if, in causing the shed to be built, he did all that a careful man would do, he would be exempt from liability for an event which was caused by the carelessness or improper conduct of the builder, of which the Defendant had no notice. Held — That the direction was right, for it could not reasonably be inferreil that the Defendant had warranted that the shed was fit for the purpose to which it was applied, inasmuch as this would charge him with a trust beyond what the nature of the thing put it in his power to perform ; and although it was reasonable to require him to use due care to ascertain whether the building was secure, and, by himself and his servants, to take due care to maintain it in a proper state, it would be unreasonable to go further. Judgment for warehouseman. — Tried in Court of Queen^s Bench, January 28, 1874. — From Law Journal Re- ports, vol. 43, page 43. Case Case Xo. , No. . ... 262 Heugh V. L. ^ N. RT-. (1870) . . 254 . ... 219 doughy. L.i-N. W. (1871) . . 134 116 Cliapman\. G. W. (1880)... . . 191 Dia: EST. Where the Carrier's Liability Ends, and that of Ware- houseman Commences. {See also cases of Fire, Goods Burnt, Stoppage in Transitu.) Thomas v. Dai/ (1803) Cairns v. Robins (1841) Boltonv. L. Sr Y. (1866) In Thomas v. Day (1803) a carrier was delivering to a warehouseman a pack of linen, and in hoisting it out of the cart up to the loft it fell out of the slings, and the linen was scattered out in the mud of the street. Lord Ellenborough said — " It appears here that the damaged pack of linen was on the crane and lifted from the cart ; it was then in the warehouseman's possession, and being so, I think, in point of law, he is liable for the* loss." In Cairns v. Itohhis (i84i) the goods were delivered to consignee, and he sent them back to the carrier s GOODS ON HAND. 463 warehouse to be Avarehoused, and at tlie end of a year, when he called for them, they could not be found. The carrier made no charge for warehousino- and his servant admitted he did it free, being com- pensated in getting the carriage. Baron Alderson said the question Avas whether the carrier was a gratuitous keeper of these goods, or a keeper of them for a reasonable compensation. He confirmed the verdict of the Jury that the carrier Avas liable. In Bollon v. Lancasldre and Yorkshire (isec) eight skips of tAvist Avere refused by consignee ; he became a bankrupt, and then his assignee claimed them ; sender in the meantime demanded and obtained possession of them from the Company. Consignee's assignee then sued the Company for value. Chief Justice Erie held that (although the goods had been sent backAvards and forAA^ards once or twice betAveen consignee and sender) they had not ceased to be in transitu, and hence claim- able by sender. He said — '* A carrier may be a Avare- houseman of goods arri\'ed at their destination, but to constitute him such there must be a change from the capacity of carrier to that of warehouseman, and that cannot take place unless the parties intend it. It is clear that consignee did not constitute the Company Avarehousemen ; and then sender lays his hand on the goods, and that is a sufficient defence to this action." In Heugli v. London and North Western (i870) a bale of duck Avas tendered to consignees, and, being refused, was taken back to the station. Consignee AA^as served with a notice that the bale lay at his risk. One of consignee's men got possession of the notice, and fraudulently obtained delivery of the bale. Chief Baron Kelly said—" It is true that as a matter of laAv a delivery to the Avrong person by a carrier, Avhile he is still clothed Avith the character of a carrier, has been held to amount to a conversion. In. this case the character of carrier had ceased Avhen the delivery complained of took place, and Avhatever may have been the character Avhich had then devolved upon the 464 GOODS ON HAND. Company, it certainly was not the cliaracter of carriers." Baron Martin said the Company were in- voluntary bailees and nothing else. Judgment for Company. In Clough v. London and 2^orth Western (i87i) nine pianos were sent, London to Liverpool. Senders, find- ing a fraud was intended, got the Company in London to telegraph to stop dehvery of the pianos. Before the telegram arrived consignee had called at the Liver- pool station, and enough took place between him and the Company to put an end to the transitus^ the Company agreeing loith him to hold the jnaiios no longer as carriers, hut as warehousemen for him. Ultimately, on receiving an indemnity, the Company delivered the pianos to senders in London, and consignee sued for £205. The Company were held not liable, owing to the peculiar terms of the contract of sale between senders and the purchaser ; but I must refer the reader to the Judg- ment, which cannot be condensed. Li Chapman v. Great Western (I88O) goods arrived at Wimborne, addressed " Till called for," on March 25, and consignee did not apply for them until March 27, during which interval the station and the goods had been burnt. Lord Chief Justice Cockburn held that between the arrival and the fire a reasonable time had elapsed for consignee to have taken his goods away, and that he (consignee) could not prolong the liability of the carrier as a carrier ajid insurer beyond a reason- able time ; that the carrier had become a warehouse- man of the goods, and was not responsible for their accidental destruction by fire. 262. Thomas v. Day. — Action for damage to a pack of linen during the course of being warehoused. Defendant kept a warehouse, and Plaintiff sent the pack to be warehoused. It appeared the damage arose in slinging the pack. It was slung on the crane by the cords, the cords gave way, and the pack fell, and 75 pieces of linen fell out in the street and were damaged by wet. The warehouseman offered the carter slings to make the hoisting more secure, but the carter refused them. GOODS ON HAND. 465 Lord Ellenborough said — " The whole question turned upon the single point, when the warehouseman's liability com- menced and the agency of the carman ended. When the ware- houseman took them into his own hands (was) the moment the warehouseman applied his tackle (of crane) to them ; from that moment the carman's liability ceased. The slings are provided by the Defendant, and he is bound to see that they are of sufl&- cient strength and fit for the purpose, and he should not apply his tackle (of crane) unless that could be performed which he was bound to do. If the slings were necessary the refusal of the carman or his declining to use them will not exempt the warehouseman. He ought to have insisted upon the carman using them, and if he refused he should have repudiated the goods and refused to accept them. It appears here that the damaged pack of linen was on the crane and lifted from the cart ; it was then in Defendant's possession, and being so, I think, in point of law, he is liable for the loss." — Tried at Nisi Prius, Hilary Term, 1803. — From Espinasse's Reports, vol. 4, page 262. Warehousemen and Whaefingees have Oedinarily (by Custom) a Lien upon Goods foe a G-eneeal Balance. Case No. Naylor v. Mangles ( 1 794) 263 Case No. Spears V. Hartley (1799) 264 DIGEST. In Naylor v. Mangles (i794) Lord Kenyon said liens were either by common law, usage, or agreement. The usage in the present case had been proved so often that it should be considered as a settled point. Defendant had detained 2b hhds. sugar warehoused with him for part balance of a general account. In Sizars v. Hartley (1799) Defendant detained a log of mahogany (warehoused with him) for a general balance OAving and unpaid for nine years. Lord Eldon held there was no statute of limitations in respect to a lien, and that the warehouseman may enforce payment ' 30 466 GOODS ON HAND. by the lien which the law has given him for his general balance. 263. Naylorv. Mangles. — Action for £167. Defendant (Mangles) was a wharfinger and warehouseman, and had in his warehouse 25 hhds. sugar belonging to one Boyne. Boyne owed Mangles £167, part being for rent on the 25 hhds. sugar, and part balance of a general account. Boyne sold the sugar to Naylor (Plaintiff), but Mangles refused to deliver up the sugar until the whole of his account, £167, had been paid. Naylor, to get possession of the sugar, paid the £167, and brought this action to recover it back. Lord Kenyon said liens were either by common law, usage, or agreement. Liens by common law were given where a party was obliged by law to receive goods, in which case, as the law imposed the burden, it also gave him the power of retaining for his indemnity. This was the case of innkeepers, who had by law such a lien. That a lien from usage was matter of evidence. The usage in the present case had been proved so often, he said it should be considered as a settled point that wharfingers had the lien contended for. Judgment for wharfinger. — Tried at Nisi Prius, March 3, 1794. — From Espinasse's Reports, vol. 1, page 109. 264". Spears v. Hartley. — Action for value of a log of mahogany. The Defendant, Hartley, detained the log as a lien for a general balance due some nine years previous, and which period of time was beyond the Statute of Limitations. Lord Eldon said — " If what has been stated by Plaintiff's counsel be law, that the debt is discharged by the operation of the Statute of Limitations, no lien could be obtained by reason of it ; but the debt was not discharged, it was the remedy only. I am of opinion that though the Statute of Limitations has run against a demand, if the creditor obtains possession of goods on which he has a lien for a general balance, he may hold them for that demand by virtue of the lien. In this case Defendant had a subsisting demand when the goods came to his possession. I am of opinion he may enforce it by the lien which the law has given him for his general balance." Judgment for ware- GOODS ON HAND. 467 houseman. — Tried in Court of Common Pleas, February 19, 1799. — From Espinasse's Reports, vol. 3, page 81. Wakehouseman's Kesponsibility in respect to Accidental Fire Destroyinct the Gtoods — Damage by Eats and Mice and Leakage. Case Case No. No. Story on BaMments, hZQ and hZ7 — I Bourne v. Gathje (1844) 220 Ga/rtside\.T.SfM.N.(YIQ2)... 241 j TF/iite v. ffwmpTirey (1847) 200 CaiZi/v. Pam'firs (1792) 265 i Hudson \. Baxendale {ISbl) ... 225 Hyde V. T. Sf M. N. (1793) ... 214 ! Chapman v. Great Western (1880) 191 In re Wehi (1818) 266 \ DIGEST. In Story on Bailments, section 536, page 519, it is stated — "In all cases the material point upon which the controversy hinges is whether the one character or the other character predominates in the particular stage of the transaction. If a common carrier receives goods into his own warehouse for the accommoda- tion of himself and his customers, so that the deposit there is a mere accessory 10 the carriage, and for the purpose of facilitating it, his liability as a carrier begins ^\'ith the receipt of the goods. So if an innkeeper is at the same time a carrier, and goods are sent to his inn and received by him for transportation, he is liable as a carrier for any loss before they are put upon their transit." In Story on Bailments, section 537, page 519, it is stated — " On the other hand, if a person is at the same time a common carrier and a forwarding merchant, and he receives goods into his warehouse to be forwarded according to the future orders of the owners, if the goods are lost by fire before such orders are received or the goods are put in transit, lie is not chargeable as a common carrier, but only as a warehouseman." In Gartside v. Trent and Mersey Navigation (1792) four pockets hops were carried from Stourport to Man- chester by canal, to go to Stockport. The hops were burnt in canal warehouse the first night after discharge. It was the custom to keep the goods in the warehouse until the Stockport carrier called for them. The carrier was held exempt from liability for the destruc- tion of the hops, being held to be a warehouseman, and liolding the goods until the proper carrier called for them. In Cailiff v. Danvers (1792) ginseng in a ])ox was destroyed by rats. Plaintiff had several times taken 4G8 GOODS ON HAND. samples, and had not nailed the cover down. The carrier kept cats in the Avarehouse to destroy the rats. Lord Kenyon held that the Defendant, having exerted all due and common diligence, was not respon- sible, not being an insurer, as he would have been under a carrier's contract. In Hyde v. Trent Namgaiion Company (1793) eighteen bales of cotton were burned in the Manchester Canal warehouse the same night as unloaded from boat. The Canal Company had accepted at the starting point (Gainsborough) the freight, and also a sum for cartage in Manchester. The Company gave the cartage to a cartage agent, and paid him, but denied acceptance of a through contract to deliver beyond their warehouse in Manchester. Chief Justice Lord Kenyon held that the cotton, when burnt, was in the Company's hands as common carriers and not as warehousemen, and that they were responsible for the through delivery to consignee's warehouse. In Re Wehh (isis) wool that had been carried by road, London to Frome, was at consignee's request retained in the carrier's warehouse, where it w^as accidentally burnt. Chief Justice Gibbs held, although the duty of the carrier had not been discharged, he was not liable as a carrier under the circumstances for the loss. In Bourne v. Gatliffe (i844) linens, value £734, Belfast to London, were burnt the night of the day of un- loading on the wharf at London. It was proved to have been the practice of the carrier to deliver to con- signee's warehouse in the City ; hence the responsibility^ of the carrier had not ceased by his conversion into warehouseman, and he was held liable for the loss. In White v. Humphrey (i847) four tons of hops WTre damaged by mice in carrier's warehouse at Maidstone.! They were on hand for thirteen months, but had beei received by the carrier to at some time carry, and were carried, to London. No charge for w^arehouse reni was made. Lord Denman held that the advantage of carrying the hops for hire might be considered as pay- GOODS ON HAND. 469 ment for storage, and the carrier was therefore not a gratuitous warehouseman, and consequently liable for the damage. In Hudson v. Baxendale (1857) a puncheon of gin was refused by consignee because he did not order it. It was then leaky at the bung. It lay in the carrier's warehouse nearly three months, when 25 gallons were found deficient. It was held that after the carrier had tendered the puncheon to consignee, and the consignee had said " I will not take it," then he was no longer an insm^er, and his duty as a carrier had ceased, and a totally different duty was cast upon him ; that the carrier was not responsible for the leakage if it occurred after the tender, nor if the leakao-e arose from the original vice in the packing, nor was he responsible to advise sender of the refusal. ■ In CItajmmn v. Great Western (I88O) goods arrived at Wimborne, addressed "Till called for," on March 25, and consignee did not apply for them until March 27, during which interval the station and the goods had been burnt. Lord Chief Justice Cockburn held that between the arrival and the fire a reasonable time had elapsed for consignee to have taken his goods away, and that he (consignee) could not prolong the liability of the carrier as a carrier and insurer beyond a reason- able time ; that the carrier had become a warehouse- man of the goods, and was not responsible for their accidental destruction by fire. 265. Cailiff V. Daiivers. — Action for destruction of a box of ginseng by rats. Defendant, a warehouseman, had the box deposited in his warehouse by Plaintiff. Plaintiff on several occasions opened the box to take samples of the ginseng, and, although the cover was put down, it was not nailed down. Many cats were kept, and all efforts made to destroy vermin. Lord Kenyon said that a warehouseman was only obhged to exert reasonable diligence in taking care of the things deposited in his warehouse ; that he was not, like a carrier, to be con- sidered as an insurer and liable for all losses happening other- 470 GOODS ON HAND. wise than by act of God or the King's enemies ; and that the Defendant in the present case, having exerted all due and common diligence for the preservation of the commodity, was not liable to any action for this damage, which he could not prevent. Judgment for warehouseman. — Tried in Court of Nisi Prius, March 1, 1792. — From Peake's Nisi Prius Reports^ vol. 1, page 155. 266. In re Webb. — Action for £633, the value of wool burnt accidentally in a carrier's warehouse. The wool was carted by road from London to Frome, and retained at the request of con- signees (Shepherd & Co.) in Webb's (the carrier's) warehouse. No charge was made for warehouse rent. The carrier, however, had a fire insurance policy of £500 on the warehouse and its contents, which he duly recovered. Chief Justice Gibbs held — "That the character of Webb and Co. was suspended from the time of the arrival of the wool at Frome until their delivery to the consignees ; and that during such interval, though the duty of Webb and Co. as carriers was not discharged, they were not liable as carriers." — Tried in CouH of Common Pleas, June 5, 1818. — From Taunton's Reports, vol. 8, page 443. Where a Tender of the Ctoods had been Made and they WERE Brought Back to Carrier's Warehouse, yet he WAS Held Liable as a Carrier. Case No. Storr V. Crowley (1825) 226 Caeo No. Bolton V. L. ^ Y. (1866) 116 DIGEST. In Storr v. Croidey (i825) a hamper was delivered at consignee's house, and his wife having no money to pay carriage, the porter took the hamper back to the wharf. Consignee's servant the same day called at the wharf and asked the porter to re-deliver the hamper, and he agreed to do so next day. Chief Baron Alexander held that this act of the servant and the porter was the commencement of an undertaking on the part of GOODS ON HAJSD. 471 the carrier to waive all the benefit which might be derived from the previous tender, and there was a continuing contract to hnd out the person to whom the goods were consigned, and to deliver them. In Bolton v. L. (f- Y. (isgg) consignee had refused to accept some skips of twist, but one day his carter took four of the ski^DS home from the station in error. They were, however, at once brought back. Chief Justice Erie said — "The goods delivered at Brieriield Station to his mill were delivered contrary to his instructions by his carter, and it was the same as if a wrongdoer had taken them and then they had been brought back." Case Case No. No, . ... 438 Hiort V. L. 4- N. W. (1879) ... 239 Measure of Damages for Goods Lost or Misdelivered by a Warehouseman. Anderson v. N. E. {\.%(j\) DIGEST. In Anderson v. North Eastern (isci) a case traveller's patterns was lost from a left luggage office, and Plain- tiff claimed salary and expenses during fifteen days which it took to replace the patterns. The Court held a warehouseman cannot be held liable for consequen- tial damages beyond the value of the article. Baron Bramwell said — "There would be no possibility of defining their responsibility if we were to hold that their (warehousemen's) liability varied with the con- sequences collaterally resulting from the loss of such parcels." In Hiort V. L. cj* N. W. (isto) some oats Avere con- signed to order, and the Company delivered the oats without a proper transfer oi'der, which, however, was lodged Avith them five days afterwards. The Court of Appeal held that during these five days the Company had deprived the owner of his goods, and that this constituted a technical conversion, and gave damages, Is., against the Company. 472 goods on hand. Consignee Advised of Goods being on Hand and Held under Warehouseman's Liability at Owner's Kisk. Case No. Mitchell Y. L. 4- Y.(lS7o) 106 DIGEST. In Mitchell v. Lancashire and Yorkshire (i875) bags flax, not being removed from station, were stacked in open air and covered by a tarpaulin, and consignee was advised they were held by Company under the liability of warehousemen at owner's risk. The flax got wet, and was refused, and the Company were sued for loss. Justice Blackburn said — :" When the goods arrived at their destination the Company complied with their duty when they gave notice, and then they ceased to be carriers, and incurred from that time a liability as warehousemen. I do not know of any case that supports the proposition that where the OAvner is in delay in removing the goods the ware- houseman in consequence holds himself discharged from all responsibility. It seems to me unreasonable to construe the terms of the advice note as meaning that the Company should hold the goods for the benefit of receiving rent for warehousing them, and without any liability whatever, except that they must not convert, or sell, or steal them ; they need not take any care about them." The Warehouseman is not an Insurer — He Eeceives Goods ON a Special Contract Made between Himself and his Customers. Case I Case No. No. Van Toll V. South Eastern (18Q2) 440 Mitchell v. L. .^ Y. (1875) 196 Henderson y. Stevenson (1875) ... 447 | Harris v. Great Western (1876) 442 DIGEST. In Van Toll v. South Eastern (i862) Chief Justice Erie said — " In a contract for bailment (taking charge) GOODS ON HAND. 473 the bailee may impose whatever terms he chooses, if he gives notice of them, and the bailor has the means of knowing them ; and if he chooses to make the bailment he is bound by them. The reasonableness of the terms is an irrelevant inquiry, the parties being at liberty to choose their own terms." In Henderson v. Stevenson (1875) is illustrated the importance of bringing home to the person making the contract with the warehouseman the conditions of the contract. The Lord Chancellor in this case said that it would be extremely dangerous to hold that where a document (ticket) is complete on the face of it, but having on the back of it something which has not been brought to the knowledge of a contracting party, he should be held to have assented to that which he has not seen, and of Avhich he knows nothing. There was nothing on the face of the ticket referring Plaintiff to the back. In Mitchell v. Lancashire and Yorkshire (i875) bales of flax, after completion of carriage contract, were held for consignee, and A\'ere stacked in station yard, covered with tarpaulins, but no timber had been put under the bales to keep them off the ground, and the flax was damaged by wet. Judge Field said — " I find in advice note these words, 'At owner's sole risk,' following affirmative words which describe the Company's liability. It is that of holders of goods under the known definition of warehousemen making a ware- houseman's charge. Under these circumstances I can- not read these words as freeing the Company from the ordinary liability to take reasonable care." In Harris v. Great Western (1876) Judge Blackburn said — "' The ticket has on the face of it a plain and unequivocal reference to the conditions printed on the back of it, and any person who read that reference could, without difficulty, look at the back and see what the conditions were. The Company would, if the left luggage were under ,£5 (the notice as to value being £5j in value, be, in my opinion, liable, not 474 GOODS ON HAND. because they were placed in the vestibule, but because they took no care of them ^yhen there." Cloak Eoom — Deposits of Luggage. Case j No. Anderson\. North Eastern (18QI) 438 ! Van Toll y. South Eastern (18Q2) 440 Case j Case No. No. DIGEST. In Anderson v. North Eastern (isci) a case of traveller's patterns was lost out of cloak room, and it took fifteen days to replace them. Company were sued as ivare- ho2f semen for £57 for patterns, case, salary, and expenses. Chief Baron Pollock held the Company to be bailees (not exactly warehousemen), responsible for loss to the amount of the value, but there was no undertaking to be answerable beyond the value, except by special contract. Consequential damages are not recoverable. In Van Toll v. South Eastern (18G2) a bag for a time could not be traced, and when found £20 worth of jewellery had been stolen therefrom. Chief Justice Erie held the case did not come under the 17 and 18 Vic, cap. ol, sec. 7, which regulates the terms a railway company may make for receiving, forward- ing, and delivering goods. " The Company did not receive the bag in the capacity of carriers. It was a contract for ])ailment, and the reasonableness of the terms is an irrelevant inquiry, the parties being at liberty to choose their own terms. Plaintiff was bound by the notice of conditions exhibited at the cloak room and on the ticket." Judgment for Company. 475 UNDUE PREFERENCE AND CARTING AGENTS' CASES. GENERAL. Case No. Robins (ex parte) v. L. ^ B. (1839) 267 Burton V. <3. J^. (1854) ,.,. ... 268 flbzier V. CaZ. (1855) 404. Coojjer V. L. 4- S. T7. (1858) .. 269 Jones V, E. C. (1858) Bennett v. M. S. ^ L. (1859) Att.-Gen.v. G. N. (18G0) ... PicTcford v. Cal. (1866) Case No. 405 270 271 310 DIGEST. In Ex parte Robins (v. London and B.) (is39) it was held that a company could not be required to cease undue preference by seeking to obtain a mandamus against them ; the proceeding must be by common law. In Burton v. Great Northern (i85i) Plaintiff was employed, on an agreement for t^velve months, to cart grain, Hatfield to Ware, for 5s. per tou, and he was to provide horses, waggons, drivers, and tarpaulins. It appeared it became unnecessary to cart any corn, so none was presented, and the Court held there had been no breach of the contract. In Hozier v. Caledonian (1855) Plaintift^s complaint was that the fares for passengers between Motherwell and Edinburgh were gi^eatly in excess and out of proportion to the fares, Motherwell to Glasgow, and he wished the fares altered Judgment for the Compan}- In Coojjer v. London and South Western (i858) it was held in the Court of Common Pleas that a railway company unloading " station to station " goods for Lord President M'Neil gave 476 UNDUE PREFERENCE. one person can be required to do so for all persons, or it would constitute undue preference. In Jones v. Easttrn Counties (iSoS) Plaintiff complained that the Company would not issue return season tickets between Colchester and London on the same terms as they issued them between Harwich and London. The Court declined to hold this to be undue preference. Li Beiinett v. Ifanchester Sheffield and Lincohisldre (U?>'b) it was stated the Company had two docks at Grimsby, the Old and the New Dock. The complaint was the Company allowed the old dock to get silted up so as to force the public to use the new dock, and that this was undue preference. I'he Court gave Judgment for the Company. Justice Byles said the Act refers to pre- ferences given to one person or class of persons over another in the traffic along the same railway or canal. In Tlte Attorney-General v. Gi^eat Northern (nm) it was decided in Chancery that the Company could not trade in coal or any other commodities, as it would give rise to undae preference. In Pickford v. Caledonian (I866) the Plaintiff com- plained he had not room at the Company's Glasgow Station to sort his goods for delivery same as had Cameron & Co., the Company's agent. Lord Justice Clerk held in favour of the Company. Plaintiff com- plained of not being allowed a monthly ledger account, and the Judgment was in favour of the Company. Plaintiff complained that his clerk was not allowed a writing sentry-box like Cameron & Co. ; the Judgment was again in favour of the Company. 267. Ex jjaHe Robins (v. London and Birmingham Rail- ivay Company). — Action in respect to railway company refusing to carry goods. Messrs. Eobins, carriers, applied to the London and Birmingham Railway to have their goods carried in the Company's carriages. This the Company refused, although the Company had entered into arrangements with another firm of UNDUE PREFERENCE. 477 carriers to convey their goods only. Messrs. Eobins applied for a mandamus. Justice Patteson said — "A mandamus, if granted at all, must be to do something which the Company are required to do by the Act of Parliament, not something which they are required to do by the general law of the land. Now it is admitted that there is no clause in the Act requiring the Comj)any to take the goods of all persons who present them for conveyance in the carriages of the Company, and indeed the Act seems rather to negative such an obligation. The I7lst section authorises all persons to use the railway with carriages properly constructed on payment of certain rates, and it seems, therefore, that the present applicants may make carriages of their own, and may require the Company to allow them to be conveyed along the railroad. By the 174th section the Company are empowered, not required, to provide locomotive engines or other power for drawing things along the railway, and may recover such sums of money for the use of them as they think proper, in addition to the other rates authorised to be taken. It seems, therefore, that it was not intended by the Act to compel the Company to take all goods of all persons which might be offered to be conveyed. The argument next is that the Company have held themselves out to the world as common carriers, and that therefore they are within the general law, and are obliged in consequence to carry all goods if they have room and means, and that therefore they have no right to do so great an injury to one set of carriers as to refuse their goods and to take the goods of others. It is argued that that cannot be done by the general law of the land, but a breach of the general law of the land is the subject of an action. The Court will never grant a mandamus to enforce the general law of the land which may be enforced by an action. They will, however, in some cases grant a mandamus to do that which may be enforced by indictment, as was determined in the cases that have been cited, of which I see the full force." Judgment in favour of Company. — Tried in Court of Queen's Bench, Hilary Term, 1839. — From Bowling's Reports, vol. 7, page 566. 268. Burton v. Great Northern Raihvay Company. — Action for damages owing to an alleged breach of a cartage 478 UNDUE rKLl'KUENCE. contract. The contract was made on the 1st October, 1851, and the Company ceased to give Plaintiif the goods to carry on the 1st April, 1852, giving him notice on the 18th April, 1852. The cartage was between Hatfield and Ware for grain and merchandise, at 5s. per ton. It appeared to be competitive traffic with the Eastern Counties Kailway. An arrangement was made between the two Eailway Companies, and Plaintiff's services, owing to the traffic being diverted, were not then re- quired. The agreement set out — '< Thomas Bnrton undertakes, in consideration of the terms hereinafter recited, to provide all waggons, horses, drivers, tarpaulins, and all other plant necessary for the cartage of grain, merchandise, &c., between Hatfield and Ware, and to convey all grain, merchandise, &c„ that may he presented to him for that purpose, between the above points." " And it is mutually agreed that this agreement shall continue in force for the period of twelve months from the date hereof; at the expiration of such time, Mr, Burton will have the option of continuing the contract on such reduced terms as any other part}- may undertake the work." The case was first tried at the London Sittings after Michaelmas, 1853, before Baron Martin, when he told the Jury he thought there was an agreement ; that the declaration might be amended if requisite; and that the Company had been guilty of a breach of contract, because the necessary result of their act was the termination of the employment of the Plaintiff. Verdict, £75 damages. The Company appealed, and on the appeal case Baron Parke said — " The Plaintiff undertakes, in consideration of the payment specified, to carry all the goods that may be presented, and it turns out that there is no occasion for any to be presented. What breach is there ? There is no provision that a given quantity shall be sent. The contention is that by giving the notice the Company have committed a breach. The contract, as laid down in the declaration, is cer- tainly not proved, and I do not at present see what amendment could be made to support the action. If it be alleged that the Company were to pay for all goods that should be presented and carried within the year, there is then no breach. There may bej a new trial, with liberty to the parties to amend if it is thought] worth while to do so." A stet j/i-oces8U8 was agreed to. — Triedl in Court of Exchequer, FeWuary 7, 1854. — From Laiv Joi(,rnal\ Repoiis, vol. 23, page 184. UNDUE PREFERENCE. 479 269. Charles C. Cooper v. London and South Western Railway Coniioany. — Action in respect of undue preference under Eailway and Canal Act (17 & 18 Vic, cap. 31). Plaintiff, an independent carting agent, and previously an employee of the Company, received goods consigned to him from Southampton Docks to Nine Elms Station, London. These goods were charged 13s. per ton, which Plaintiff alleged was second class rate. The Company loaded them in separate waggons from other traffic (it appeared the quantity being sufficient), but the Company refused at Nine Elms to unload the goods, but placed the waggons convenient for Plaintiff to do so. Plaintiff contended that goods arrived from Southampton Docks for Pickford & Company, and that the Company unloaded these. The Com- pany replied that Pickford & Company's goods were received in Aery much less quantities, and from this fact were loaded with the Company's general goods, and in unloading these general goods they necessarily had to take out those belonging to Pickford & Company. The Company's superintendent made an affidavit that the 13s. rate was a station to station rate, and did not include the service of unloading. It aj)peared the Plaintiff had not made a demand upon the Company to be treated the same as Pickford & Co., and that consequently the rule before the Court had not been properly moulded. Chief Justice Cockbum considered that " the greivance is one only of small amount. The rule, therefore, must be discharged, but without costs, and with an intimation from the Court that the Company are not justified in their present course of proceeding, and that if they continue it this Court will probably interfere." — Tried at CouH of Common Pleas, June 1, 1858. — Laiu Journal Reports^ vol. 27, page 324. !27 O .— Bermett v. Manchester Sheffield and Lincolnshire Raihvay Compjany. — Action against a railway company for not keeping a dock by the depth of water in a fit condition for traffic. The Manchester Sheffield and Lincolnshire Company were the proprietors of the Grimsby Old Dock, and also of another dock called the Gfrimsby New Dock, communicating with their railway. By Act of Parliament the Company were authorised and required to maintain the old dock and the 480 UNDUE PREFERENCE. approach thereto of a given depth. Held — That the failure to perform this duty, so that the dock and its aj)proaches became silted up and the depth of water therein insufficient for vessels to get to the wharfs adjoining, was not the subject of redress under the Eailway and Canal Traffic Act, 1854, although it was suggested that the object of the Comi^any was to discourage the traffic to the old dock, and to divert it to the new. And seinhle — that the dock or haven was not a canal or navigation within the statute. Per Justice Byles — The Act refers to pre- ferences given to one person or class of persons over another in the traffic along the same railway or canal. Judgment for Company.- — Tried in Court of Common Pleas, June 15, 1859. — From, Neville and Macnamara's Reports, vol. 1, page 288. 271. — The Attorney-General v. Great Northern Raihvay Company. — The Attorney-General, at the instance of a Mr. North, of Nottingham, applied for an injunction in Chancery to compel the Great Northern Eailway to desist from acting as dealers in coal, which they carried to London and sold. Vice- Chancellor Kindersley said he could not conceive the slightest doubt but that in effect the Company had become dealers in coal. "The Company's Act contains no express prohibition against engaging in any business, except that of making and maintaining and using the railway ; there is, however, implied in every such Act a prohibition or contract against ever engag- ing in any other business than that of a railway company. It is therefore illegal, and in effect, though not in terms, pro- hibited by the law to a railway company. Eailway companies are armed with powers of raising and possessing large sums of money, large amounts of property ; and if they were to apply that money or that property to purposes other than those for which they were constituted, they might very much injure the interests of the public. I observe that in the eight years, 1852 to 1857, the Company's coal business increased from 73,000 tons to 794,000 tons. There is great danger they might . get into their hands the entire business in coal of all that district of country. If with coal, why not with other produce, as corn, beasts, sheep, &c. ? Other railway companies might do the same, and three or four companies would have a monopoly of UNDUE PREFERENCE. 481 the coal trade into London." Judgment against Company.— Tried in Vice-Chancellor'' s Court, June 25, 1860. Undue Preference in respect to Eates for Carriage of Coal, Slates, and Minerals. Case 1 Case No. No. Equality Clause, 8 & 9 Vic, cap. West v. L. 4 N. W. (1870) 280 20, sec. 90, page 486 — NittshillCoal v. Caledonian (1874) 281 Odade v. North Eastern (1857) 272 Diphivys Casson v. Festiniog{l874,) 282 Bansomev.E C. (1857) 273 ' Lees v. L. 4- F. (1874) 283 Eansome V. £. C. (1858) 274 Foreman v, Oreat Eastern (1875) 284 Ransome v. E. C. (1858) 275 \ Bellsdyke v. North British (1875) 285 Har, is y. C. ^ W. (1853) 276 Holland y. Festiniog (\876) ... 286 NicTiolson v. O. W. (1858) 277 ! Victoria Coal y. N. ^ B. (1877) 287 Rflwisome V. JB. C. (1860) 278 j Lock y. North Eastern (1877)] ... 288 Oxlade y. North Eastern (186i) 279 l Lloyd y.N. 4- B. {1878) 289 Stricky. Swansea Canal Co.(\8i}l) 367 j DIGEST. In OocJade v. North Eastern (1857) Plaintiff complained that coal in train-loads was carried at a less rate per ton per mile to South StaiFordshire than for shorter distances on the local system of the North Eastern Company's line. Justice Cresswell held that a rail- way company is justified in carrying goods for one person at a less rate than that at which they carry the same description of goods for another, if there be cir- cumstances which render the cost to the Company of carrying for the former less than the cost of carrying for the latter. In Ransome v. Eastern Counties (iS57) Plaintiff com- plained the Company had contrived rates designed to give traders of land-borne coal via Peterborough an advantage over sea-borne coal imported into Ipswicli and sent to interior stations. Justice Cresswell held that in construing tlie Act tlie interests of the Compan^^ might be considered, and if 1,000 tons could be carried at less than 100 tons, yielding an equal profit to the Company, it was competent for tlie Company to charge 31 482 UNDUE PREFERENCE. a lower rate per ton per mile. Still, a writ was issued that no undue preference should be given in favour of Prior & Co., the rival coal firm. In Nicholson v. Great Western (isss) the Company, by agreement for ten years, granted the Ruabon Coal Company a low rate for coal in train-loads, in such quantity as to produce to the Company £40,000 a year. The Company oifered the same facility to other senders on same terms. The Court's construction of the 17 & 18 Vic, cap. 31, is not contravened by the Company carrying at a different rate (lower rate) in considera- tion of a guarantee of a large quantity of full train- loads at regular periods, provided the real object of the Railway Company be to obtain a greater remunera- tive profit by a diminished cost of carriage, although the efi'ect may be to exclude from the lower rate those jDcrsons who cannot give such guarantee. Judgment for Company. In Harris v. Cockermoiith and Workington (1858) the Company Avas threatened by Lord Lonsdale that he would make a tramway to Workington and divert his coal trade, and to prevent this the Company granted him a lower rate than other colliery proprietors. The Court of Common Pleas held this to be undue pre- ference within 17 & 18 Vic, cap. 31, sec. 2. In Ra7isome v. Eastern Counties (i858) Plaintiff com- plained that the Company had contrived rates designed to give the traders of land-borne coal via Peterborough an advantage over . sea-borne coal imported into Ipswich and sent to interior stations. Held — That the Company could grant lower rates for full train loads of coal without undue preference. Plaintiff also com- plained that the rates for train-loads from Peterborough are out of all proportion greater than the rates from Ipswich for train-loads. Held — That there was undue preference, the points being competitive, and the rates for the longer distances proportionately lower. In Ransome v. Eastern Counties (Easter Term, isos) the complaint was that the Company had not obeyed a UNDUE PREFERENCE. 483 writ of injunction issued after the previous trial. Justice Willes said — " The Plaintiff has failed to make out that the cost, with the mileage (which is admitted to be correctly charged), would make a tonnage rate less than the charges of Avhich they complain. Unless they establish this — and they certainly have not done so — they have no locus standi^ and consequently must bear the usual penalty of an unsuccessful experiment by having their rule discharged, with costs. In Ransome v. Eastern Counties (iseo), where coal is carried in train -loads at a lower rate, it was held that a company dividing a train owing to steep inclines does not make a low rate, in train-loads, a case of undue j^reference. In Oxlade y . North Eastern (i864) the Company declined to carry coal for individuals, and confined the carriage to colliery owners. Chief Justice Erie said — " I think the Company have a perfect right to say that they will carry coal only for colliery owners. For the reasons alleged by them in their ath davits, it is evident that they could not have the same control over the traffic if they carried coal for the general public." In Strick v. Swansea Canal Company (i864) the Plaintiff complained he was charged for coal on the canal for three and a half miles at l|d. per ton per mile, while other persons carrying coal a greater distance were charged only |d. per ton per mile. Chief Justice Erie ruled in favour of the Canal Company. In WesiY. London and North Western (iszo) Plaintiff complained that the Company had rented to one Perkins the whole of the land adjoining the station for a coal, wharf, and refused to rent him ground for a similar purpose, and that Perkins did not occupy or require all the ground. Two Judges held the wharf was part of the railway, and the case came within the Railway and Canal Act. Tiie other two Judges held the application was for a store for the deposit and sale of coal, and the statute did not apply. Rule dropped. 484 UNDUE PREFERENCE. In Lees V. Lancashire and Yorkshire (1874) the Rail- way Company liad to close their Oldham Road Station, Manchester, for the reception of coal, and transfer the trade to Miles Platting Station. Plaintiffs and the Corporation of Manchester both had sidings off the Oldham Road Station into their own yards. Plaintiffs sold the coal by retail, while the Corporation only used it for making gas. The Company declined to continue to carry Plaintiffs' coal to Oldham Road, but con- tinued to carry the coal for gas. The Court of Rail- way Commission held that it was a matter of public benefit and convenience to continue carrying the Corporation coal, and that it was not undue and unreasonable preference. In Kitishill Coal Company v. Caledonian (i874) the Plaintiffs were charo;ed a hio-her rate because their coal was cannel coal for gas purposes. The Company carried splint coal, which was also used for gas pur- poses, at the lower rate. Held — That this was undue preference, as cannel coal and splint coal had enough in common of gas-producing quality to be com- mercially the same description. In Diphwys Casson Slate Company v. Festiniog Railway (1874-75) the Company entered into an agreement with a Mr. Greaves to carry his slates for fourteen years at 2s. Gd. per ton, instead of the ordinary rate, 3s. 3d. per ton, the consideration being that Mr. Greaves bound himself to send all his slates by the line to Portmadoc. Same terms were offered to other senders. The Court of Railway Commissioners held — " The Rail- way Company cannot compel the public to purchase equality of treatment by imposing conditions of the character of those contained in the agreement. The same offer may be made to all, but circumstances are , so unlike tliat every kind of partiality Avould ensue if the offer must be accepted or parties submit to higher [ charges." Judgment against Company. In BelUdyke v. Norili British (i87r>) lower rates for] carriage of coal liad been given to one colliery pro-' UNDUE PEEFERENCE. 485 prietor over others, and the Railway Commission held it was undue preference, and must be discontinued. In Foreman v. Great Eastern (1875) the old question tried in Ransome v. Eastern Counties came up again to be tried before the Kailway Commission. The rates for sea-borne coal into Great Yarmouth for interior stations were relatively higher than the rates for land- borne coal from Peterborough to same stations. The decision was against the Company, and further, they were required, to give Plaintiff certain accommodation at Great Yarmouth to load coal from quay side into trucks. In Holland v. Festiniog Company (i876) the Company made agreements with two quarry owners for special rates, one agreement for fourteen years, and the other for thirty years. The rate for the thirty years' agree- ment was a less rate of 4|d. per ton. This was held to be undue preference. In Victoria Coal and Iron Company v. Keaih and Brecon and Midland Railways (i877) the lines of the two Defendants formed a continuous and direct line from Plaintiffs' colliery to Swansea. The Defendants, how- ever, refused to carry the coal by this direct line. The Court of Kailway Commissioners held that under section 2, llailway and Canal Act, 1854, the Companies must carry the coal. In Lock V. J^orth Eastern (i877) the Company allotted at many stations cells or depots to certain colliery owners to store their coal and to retail it. Private persons receiving coal at these stations had no such continued convenience, and this was held to be undue preference. In Lloyd Y. Nortlian\pton and Banbury Company (i878) it was a question of two ironstone mines. One mine was three and a half miles from Blisworth and the other two and a half miles further, and Plaintiff objected to the two being grouped and the same rates charged to South Wales. The Court of Railway Commission held 486 UNDUE PREFERENCE. that no undue preference was caused by the sanie rate being made applicable to both places ; that, as a through rate was a gross sum of several amounts for conveyance over a long route, it was impossible to make its amount vary with slight differences of distance. Equality Clmis", 8^-9 Vic, cap. 20, sec. 90. — " And \Yhereas it is expedient that the Company should be enabled to vary the tolls upon the railway so as to accommodate them to the circumstances of the traffic, but that such power of varying should not be used for the purpose of prejudicing or favouring parti- cular parties, or for the purpose of colhisively and unfairly creating a monopoly either in the hands of the Company or of particular parties, it shall be lawful, therefore, for the Company, subject to the provisions and limitations herein and in the special Act contained, from time to time to alter or vary the tolls by the special Act authorised to be taken either upon the whole or upon any particular portions of the railway as they shall think fit: provided that all such tolls be at all times charged equally to all persons and after the same rate, whether /ler ton or per mile or otherwise, in respect of all passengers and of all goods or carriages of the same description, and conveyed or propelled by a like carriage or engine passing only over the same portion of the line of railway under the same circumstances ; and no reduction or advance in any such tolls shall be made, either directly or indirectly, in favour of or against any particular Company or person travelling upon or using the railway." 272. — Oxlade v. North Eastern Raihvay Com'pany. — Action in respect to undue preference in the carriage of coal from Dur- ham and Northumberland. Plaintiff sent coal and coke from the collieries on the North Eastern Eailway to South Staffordshire. From some cause the North Eastern waggons were detained beyond the four days allowed, and the South Staffordshire Com- pany, being unable to collect the demurrage, refused to accept any more traffic for Plaintiff The North Eastern Eailway, being the sending Company, consequently gave Plaintiff notice accordingly. Plaintiff then commenced this action against the North Eastern for undue preference, inasmuch as coal in train- loads were carried at a less rate per ton per mile to South Staffordshire than for shorter distances on the local system of the North Eastern Eailway. The North Eastern Company proved that the lower rates were only granted when large fixed quantities were sent within a fixed time. Justice Cresswell held — That a railway is justified in carrying goods for one person at a less rate than that at which they caiTy the same description of goods for another, if there UNDUE PREFERENCE. 487 be circumstances which render the cost to the Company of carrying for the former less than the cost of carrying for the latter. The iS"orth Eastern Eailway Company, from a desire to introduce the Northern coal into Staflfordshire, were induced to make special agreements with different merchants for the car- riage of coal and coke at a lower rate than their ordinary charge. Held — That this was not a legitimate ground for making such agreements, and that lowering their rates for that purpose, there being nothing to show that the pecuniary interests of the Company were affected, was giving an undue preference to that traffic. The Court refused to require the Company to provide trucks for the carriage of coal and coke for a merchant who refused to pay demurrage therefor at the same rate as was charged to all other merchants under similar circumstances, or to carry coals to the extremity of their line, where it joined the Midland Railway (Altofts, near Normanton), and there shift them into other trucks or waggons, they having no convenience at that place for that purpose, and not affording such facility to any other person. And as to the first branch of the rule, held — That the Company were not common carriers of coal. The view of the Railway and Canal Traffic Act, 1854, expressed in Ransome v. Eastern Counties Mailway acted upon. — Tried in CouH of Common Pleas, January 30, 1857. — From Neville and Macnamara's RepoHs, vol. 1, page 12. 27 3i Ransome v. Eastern Counties Raihvay Company. — Action in respect to undue preference. The Company carried coal for Messrs. Prior from Peterborough to their stations at a less rate per ton per mile than they would consent to carry coal for Messrs. Ransome from Ipswich to the interior stations. In fact it was a case of competition between land-borne coal and sea- borne coal. It would appear that the Company were anxious to encourage the longer mileage traffic from Peterborough rather than the shorter mileage traffic on sea-borne coal from Ipswich inland. Justice Cresswell said — " The first thing to be ascertained is the meaning of the expressions in the Act, ' undue or unrea- 488 UNDUE PREFERENCE. sonable preference or advantage,' and ' undue or unreasonable prejudice or disadvantage.' Are these words to be construed with reference to the interests of all parties using the railway, or may the interests of the railway owners be taken in any manner into account ? If a thousand tons could be carried at a lower sum per ton per mile than one hundred, yielding an equal profit to the Eailway Company, may they so regulate the charge as to derive such equal profit ? If that can be done without giving what the statute calls an undue or unreasonable preference, may not the Company, in fixing the rates, consider the whole profit, and not the mere profit per mile, and, in order to induce people to carry more on their line, and for longer distances, agree to make a reduction in each case ? If two railways start from the same terminus, and arrive at the- same terminus by different routes, must they charge for the whole line at the same rate as the intermediate stations ? After a good deal of consideration, we think that the fair interests of the railway ought to be taken into account, and then the questions above suggested assume a very complicated and diffi- cult character, and are such as we feel but little qualified to decide. We cannot say both parties should be charged the same sum per ton per mile, for Prior & Co. use their own trucks, and Ransome & Co. use the trucks of the Company ; and it is possible it may cost the Railway Company more to carry it over some parts of the line than others. We cannot prescribe an equal mileage rate without making some allowance for trucks, and for the same reason we cannot enjoin the Company to desist from charging Ransome & Co. any greater sum per ton per mile than they charge to persons with whom they have private agreements. We think that a writ should issue enjoin- ing the Company to desist from giving any undue preference to Prior & Co., and to carry coals for Ransome & Co. on equal terms with Prior & Co., having due regard to the circumstances, if any, which render the cost of the Company less in carrying for one l)arty than it costs in carrying for another." — Tried in the Court of Common Pleas, January 22 and 29, 1857. — From Law Journal Reports, vol. 26, page 91. 274-. Ransome v. Eastern Counties Railway Company. — Action in respect to undue preference in the rates for coal traffic. UNDUE PREFERENCE. 489 The Com! refused to grant an attachment against the Company for disobedience to a writ of injunction under the Kailway and Canal Act, 1854, enjoining them to desist from giving an undue preference in respect of the carriage of coal to persons carrying coal from Peterborough or other places to or towards certain places mentioned in the rule, the affidavits on the part of the Company showing a bona fide endeavour on their part to con- form to the order of the Court, although it appeared that the reformed scale of charges still operated in some other respects injuriously to the interests of the Complainants and advan- tageously to the other parties. Justice Willes said — " Assuming that the average cost of preparing and starting a train-load of 200 tons of 35 trucks coal is 2s. 5d. per ton, as is sworn to on the part of the Com- pany and not controverted on the part of the Complainants, the latter have failed to make out that the cost, with the mileage (which is admitted to be correctly charged), would make a tonnage rate less than the charges of which they complain. Unless they establish this — and they certainly have not done so — they have no locus standi, and consequently they must bear the usual penalty of an unsuccessful experiment by having their rule discharged, with costs." — Tried in Court of Common Pleas, Easter Term, 1858. — From Neville and Macnamara's Reports, vol. I, 'page 116. 275. Ransome v. Eastern Counties Eailvjay Company . — Action in respect of undue preference of coal rates. There were two issues. The first — (1) Plaintiffs complained that the Company had contrived rates designed to give the traders of land-borne coal via Peterborough an advantage over sea-borne coal imported into Ipswich and sent to interior stations. The Company divided their line into coal districts, applying certain rates to each district. Plaintiffs carry on their coal business from Ipswich at Needham ]\[arket, Stowmarket, Elmswell, Thurston, and Bury St. Edmunds, Mollis, Diss, and Hadleigli. These stations, instead of being classed in one district, were classed in three different districts. TheComjjany gave the Peterborough coal merchants low rates for train-loads of 200 tons, provided the destination stations were Avithin one 490 UNDUE PKEFERENCE. district. The Plaintiffs, who had not sufficient stations in any one assigned district to send at one time 200 tons, were thus placed at great disadvantage, and they contended there was undue preference. The Company contended they had not framed the districts to injure sea-borne coal, but to accommodate the requirements of the districts ; that by this arrangement they were enabled to get traders to send full train-loads, which could reasonably be carried at less cost. Justice Williams, in giving Judgment, said — " On the whole, we think the ground of complaint has not been sustained. We think the Company have failed to show the district is not disadvantageous to Plaintiffs ; yet we cannot find sufficient to justify us in coming to the conclusion that Plaintiffs are unduly subjected to this disadvantage, or that it is caused by any undue preference or partiality, as suggested. It is their misfortune, which we cannot remedy, if the state of their trade is such that it happens not to accommodate itself to a scale and system of rates which does not ap})ear to be disadvantageous to the public at large or objectionable in other respects." (2) That the rates for train-loads from Peterborough are out of all proportion greater than the rates from Ipswich for train-loads, as follows : — From Ipswich. From Petereorough. MILES. TO S. D. JirLES. TO S. D. 27 Bury ... 2 5 per Toil. 74 Bury 4 3 per Ton 23 ThnrstOD... 2 2 ,, 78 Thurston . . 4 4 18 Elmsvvell... 1 10 >) ^3 Elmswell... 4 5 27 Diss 2 5 98 Diss 4 6 „ 23 Mellis ... 2 2 i»5 Mellis 4 6 „ The Company contended there were circumstances that justified the difference, because the cost of carrying coal for long distances is proportionately less than the cost of carrying it short j distances, also that the profit was greater to the Company fori carrying the long distance than the shorter one; that thel scale of rates and adjustment of districts extended to the poitsj of Wisbeach, Lynn, Yarmouth, Lowestoft, Harwich, and| Colchester. Justice \Mlliams said — " There is a portion of the scale of rates as to which we think no satisfactory explanation has beeiil L'NDUE PREFERENCE. 491 givTn bj the Company. The scale of traiu-loads of coal in owners' waggons is as follows :— Increase OF Scale of Rates. Miles. 14 to 20 U. per Ton per mile. 20 to GO Id. for each 2 miles, 60to75{J'J' » 75 to 81 Id. ,, G » 81 to 93 Id. ,, 12 „ 93t3l00 Id. »» 6 „ ;00tol37 Id. !» o " Thus, in effect, the distance from Peterborough as regards carriage is abridged in the instances of the 76 to 81 miles, the 82 to 93 miles, and the 95 to 100 miles to the extent of 5, 11, and 5 miles respectively, and the Peterborough dealers are only charged 2d. per ton for the journey of 24 miles between v6 and 100 miles from Peterborough. It will be found between these points lie all the places in dispute (except Bury and Hadleigh) where Plaintiffs deal, and where the land-borne coal is alleged to be brought into competition with the sea- borne. Thus, also, Stowmarket and Needham Market, 88 and 92 miles from Peterborough, are charged as if 82 miles, and other stations likewise. But as soon as the distance reaches 100 miles, where the competitive stations are passed, the scale resumes the decreasing ratio of Id. for every two miles. This anomalous feature pervades all the districts from the other ports. If it had been confined to Peterborough and Ipswich, the pressure on the Company would have been so transparent that it would have been a palpable evasion of the injunction already obtained in this Court — Ransome v. Eastern Counties Raihvay Comijjavy (26 Law Journal Reports, 91 C.P.). It is a question whether the rate thus guarded is not in reality a disguised infringement of the principles on which the previous Judgment of this Court was founded. The effect of the scale of rates is to diminish the natural geographical advantages of the Ipswich dealers to the towns in question, and annihilate in point of expense a portion of the distance from Peterborough to the same towns. We are therefore of opinion that a writ must be issued enjoining the Company to desist from giving 492 uxDUE pep:ference. undue preference, the Company to pay the costs." — Triedj at the Court of Common Fleas, February 25, 1858. — From Law Journal Reports, vol. 27, page 167, C.P. 2.7 Q. Harris v. CocJcermouth and Workington Railway Compjany. — Action in respect of undue preference in the matter of coal rates. The Kailway Company was threatened by the owner of extensive collieries (Lord Lonsdale), which he liad at considerable expense connected with the Company's line, that unless coals were carried to Workington, the terminus of the line, at a certain rate, he would construct a tramway for his collieries to Workington, and so divert his coal traffic from their line. The Company entered into an agreement to cany the coals at less than the rate charofed to other collieries in the district. Held — That this was an undue joreference within the 17 & 18 Vic, cap. 31, sec. 2. Verdict against Company. — Tried in Court of Common Pleas, January 15, 1858. — From Laiv Journal Reports, vol. 27, page 62. 277. Nicholson (and others) v. Great Western Railway Company .— Action arising from undue preference in rates given to Ruabon Coal Company on carriage of coal. On 31st January, 1856, the Great Western Company entered into an agreement with the Coal Company by which numerous advantages — all reducible to a money value — were secured to the coal traffic of this Coal Company, to the prejudice of the coal owners of the Forest of Dean. The agreement was for ten years, the coal to be carried beyond the distance of 100 miles, and such a quantity carried as would produce to the Eailway Company £40,000 per annum in fully-loaded coal trains. The Great Western Com- pany denied any secrecy in making agreement, and alleged that a similar offer was made to all the senders of coal on Great Western line. The Railway Company proposed to all traders a graduated scale, in respect of quantities and distance, for full loads, while some traders insisted upon a scale graduated by distance only, without contract for quantity. Plaintiff claimed to have the same rate as the Ruabon Company for same distance, irrespective of quantity. Railway Company pleaded that a large traffic guaranteed admits of being worked with greater economy by a special organisation of trains and times. Plaintiff pleaded UNDUE PREFERENCE. 493 that he and others concerned sent their coal to places under 100 miles distant, and that on that account the Kailway Company fixed upon 100 miles to favour Kuabon Coal Company, who sent their coal to London ; also that two or three persons intimately connected with the Kailway Company held the principal number of shares of the Coal Company. A verdict was given for Kail- way Company, the Court saying — " We think it sufficiently appears that the Grreat Western Kailway, on entering into such agreement, had only the interests of the proprietors in view, and the legitimate increase of the profits of the railway. In the case of Kansome (1 Common Bench Reports^ Xevj Series, 452) the Court said that in considering the question of undue preference the fair interests of the railway ought to be taken into account. The decision in that case was against the Kailway Company, because it appeared the manifest object of the Kailway Company in charging different rates was to enable one set of coal o\vners to compete with another. If the Couit could see that a scale of rates had been framed to favour Kuabon Coal Company, and so prejudice the Forest of Dean coal traffic, we should hold that to be undue preference within the Act. But there is not sufficient evidence to lead to this conclusion ; and although Plaintiff and others may suffer by this scale of rates in consequence of their local position, that is a matter which the Kailway Company cannot interpose to remedy. The Court's construction of the 17 & 18 Vic, cap. 31, is not contravened by the Company carrying at a different rate in consideration of a guarantee of a large quantity of full train- loads at regular^periods, provided the real object of the Kailway Company be to obtain a greater remunerative profit by a diminished cost of carriage, although the effect may be to exclude from the lower rate those persons who cannot give such a guarantee." — Decision given in Court of Common Pleas, November 9, 1858. — From English Clearing House Reports. — Reported in Laiv Journal Reports, vol. 28, page 89, C.P. Plaintiff appealed against this decision to the Court of Common Bench, Janua.ry 13 and FeWuary 25, 1860, when tlie majority of the Court confirmed the previous Judgment. — La^jj Times, vol. 2, page 234. 494 UNDUE prei"::re:nce. 278. — Ransome v. Eastern Counties Railway Cocnpany. — On May 29, 1860, Plaintiffs again brought the Company into the Court of Common Bench. The issue was that the Company did not carry from Peterborough to No. 8 District full trains of 200 tons in 35 waggons, but that at Cambridge, the gradients being heavy, the train-load was reduced from 35 to 25 trucks, and the 10 trucks left off were carried forward by ordinary goods trains. Thus the saving in transit of a full train-load was not borne out, and undue preference arose. Chief Justice Erie held that " the consignees in every case have sent the full quantity of 200 tons. The Court has sanctioned the tariff, and this being so, it is desirable the Court should sustain it where possible, because, upon the faith of its being upheld, large interests have been called into existence and are now reposed. The senders, having consigned to the Company 200 tons coal at Peterborough, had a right to demand of the Company that they would carry the coals at the low rate ; and the Company, by carrying in the manner they have adopted, have not given any undue preference to senders. As to the question of competition, it is not the duty of the Com-t to interfere. It is nothing more than a fair arrangement that dealers sending large quantities of coal a long distance should have them carried at a lower rate than if they sent small quantities, the cost of locomotion being less to the Company.'' Justices Williams and Byles concm-red. Judgment for Com- j)any. — Tried in CouH of Common Bench, May 29, 1860. — Laiv Times Reports, vol. 2, page 376. 279. Oxlade v. NoHh Eastern Railway Company. — Action for undue preference. The Company declined to carry coal for individuals, and confined the carriage of coal to colliery owners, at which the Plaintiff took exception. It was held by the Court — That there is no obligation on a railway company, whether at common law or under the Eailway and Canal Traffic Act, 1854, to carry goods othersvise than according to their profession. Therefore, it is competent to them to restrict their cos traffic to the carriage of coals for colliery owners from the pit's 1 mouth to stations where such colliery owners have cells oi UNDUE PKEFERENCE. 495 depots appropriated to them for the reception and sale of their coals, and to decline to carry coals from station to station, or for coal merchants, such an arrangement being essential to the regulations of the large traffic in that article, and the Company not being common carriers of coal. Chief Justice Erie said — "I think the Company have a perfect right to say that they will carry coals only for colliery owners. For the reasons alleged by them in their affidavits, it is evident that they could not have the same control over the traffic if they carried coals for the general public. Plaintiff says to the Company, ' Make an exception in my favour because you have hitherto carried my coals for the owners of the Cox Hoe Colliery, and I will abide by all your regulations.' The answer to that is that if the Company do this for jVIr. Oxlade they would be bound to do it for all the Queen's subjects, and so would deprive themselves of the benefit of the complicated arrangements which they have found it necessary to adopt in order to insure the safe and convenient use of their railways." Judgment for Company. — Tried in CouH of Common Pleas, June 14, 1864. — From Xeville and MacnamarcCs RepoHs, vol. I, page 162. 280. West V. London and NoHh Western Raihvay Com- pany. — Action for undue preference, by renting to one trader ground at Ijubenham Station for storing and selling coal, and refusing it to another. Two coal dealers. West (Plaintiff) and Perkins, were in the habit of sending coal by the Eugby and Stamford Kailway to Lubenham Station. The Company allowed Perkins to hold, subject to a month's notice, as a coal wharf, the whole of the land adjoining the station which they considered they could appropriate to such a purpose. Perkins had, in fact, only used part of it, and used it for the purpose of stacking his coal till sold. West found that, unless put on the same footing as Perkins, he could not carry on a coal trade at Lubenham, and he, therefore, applied to the Court to compel the Company either to take away Perkins' privilege or put him in a similar position. Held by Chief Justice Bovill and Justice Keating — That the wharf was part of the railway, and an ordi- nary and necessary accommodation ; and that, as there was a 496 UNDUE PREFERENCE. direct advantage to Perkins and prejudice to West, without sufficient reason, the case was within the Kailway and Canal Traffic Act, and the application should be granted. Justice Montague Smith and Justice Brett held that the application was not in respect of the conveyance of coal, but for a store for its deposit for sale, and that the statute did not apply. The Judges being divided, the rule dropped. — Tried in Court of Common Pleas, June 16 and July 11, 1870. — From Law Journal Reports, vol. 39, jpage 282. 281. Nittshill and Lesniahagow Coal Company v. Cale- donian Railway Company. — Action in respect to undue preference in the rate of coal traffic. The Caledonian Company carried coal to Grant on for shipment from collieries situated on different branches of their line. On one branch the Com- pany charged different rates per ton per mile for the carriage of different descriptions of coal, viz., a " gas coal " rate and a " common coal" rate. No such classification was made on the other branches. Cannel coal (the only coal raised by the Complainants) was the only coal charged at the gas coal rate, splint coal being classed as common coal. The gas produced from splint coal is inferior in quantity and quality fi'om that produced from an equal amount of cannel coal, but both are used in different pro- portions for mixing with common coal in the production of gas, for the purpose of increasing its illuminating power. Found, as a matter of fact — That splint coal and cannel coal had enough in common of gas-producing quality to be competitive, and to make them commercially and substantially of the same descrip- tion for the purpose for which they were used, and that the cost of conveyance to the Railway Company of splint and cannel coal was the same. Held — That the carriage of cannel coal and splint coal by the Railway Company at unequal rates per ton per mile was an undue prejudice to the Complainants. Held also— That if, by reason of the gradients or otherwise, the cost of conveyance of the coal to the Railway Company on the one branch was different from the cost on the other, a pro- portionate difference might be made by the Railway Company UNDUE PREFERENCE. 497 in the mileage rate. Judgment against the Company. — Tried in the Court of Railway Commissioners, October 6, 7, aoid 13, 1874. — i^rom Neville and Macnarrmra^s Reports, volume 2, page 39. 282. The Diphwys Casson Slate Company v. Festiniorj Railvjay Company. — Action in respect to undue preference. The Plaintiffs, the Diphwys Casson Slate Company, complained that the Defendants, the Festiniog Eaihvay, granted lower rates to a ]\Ir. Grreaves for the carriage of slates over their line to Portmadoc, IVIr. Greaves being charged 2s. 6d. per ton, while they were required to pay 3s. 3d. per ton, the service being the same. It appeared Mr. Grreaves bound himself, by agreements for fourteen years, to send all the produce of his slate quarry by the Festiniog Eailway only. It appeared there was no other railway, but the Company alleged their object was not to encourage the construction of a competing line. They were willing to grant the same rates to the Slate Com- pany on the same terms. Sir P>ederick Peel, the Chief Commissioner, said — " From the Complainants' quarry slate is not more expensive for the Railway Company to carry than slate from other quarries. The difference of charge complained of depends upon its justification upon the promise to use the railway to the exclusion of any other railway, and the question for us is whether a company can grant lower charges in return for such a consideration without creating inequalities which travene the provisions of the Traffic Act. It should be mentioned that as yet there is no other railway by which slate can be sent from the quarries, and therefore no existing competition to be met, and that the object of the Company has been to discourage the construction of a competing line. Equal treatment does not consist in all being offered a similar agreement ; for if the agreement is not for the public interests, or goes beyond the fair regard which a company may pay to its own interests, it leaves untouched the right of all under the Traffic Act to be put upon equal terms. The Railway Company cannot compel the public to purchase equality of treatment by imposing con- ditions of that character or of a character of those contained 82 498 UNDUE PREFERENCE. in the special agreements of the Festiniog Company. The same offer may be made to all, but circumstances are so unlike that every kind of partiality would ensue if the offer must be accepted or parties submit to higher charges." Judgment against the Railway Company for undue preference. — Tried in the CouH of Railway Commission, December, 1874, and January, 1875. — From Laiv Times Reports, vol. 32, jpage 271. 283. Lees V. Lancashire and Yorkshire Raikvay Com- pany. — Action in respect to undue preference. The Plaintiffs (Ijees) were colliery proprietors and coal merchants, bringing their coal to the Railway Company's Oldham Road Station, and thence by a short siding into their own coal wharf. In 1872 the Rail- way Company found their Oldham Road Station so crowded with all kinds of traffic that they were compelled to transfer their coal and mineral traffic to " Miles Platting " Station, and notice was given to the coal merchants accordingly. "Miles Platting " Station was situated a mile from Oldham Road Station, both being in Manchester. The Corporation of Manchester had gas works 50 yards from the Oldham Road Station, with a siding connecting therewith, and the Company continued to carry coal for the gas works, though refusing to carry coal for Lees. This constituted the alleged undue prefer- ence. The Court of Railway Commissioners found, as facts, that " it was a matter of public benefit and convenience that the Corporation should be supplied with coal at the Oldham Road Station, and that the nature and magnitude of their supplies enabled the Railway Company to make such special arrange- ments for passing them through and out of Oldham Road Station with less inconvenience to the general and ordinary business thereof than would be caused by carrying for the applicants, and therefore held that the preference to the Corporation was neither undue nor unreasonable ; there was no competition of interest to make it so. The Corporation did not sell coal. Had it been otherwise — had Messrs. Lees and the Corporation been in the position of ti*ading companies competing with one another — each would have been entitled to be treated as the other, and it would liave been for the public benefit that UNDUE PREFERENCE. 499 no difference should be made between them, and that the Eailway Company should not be allowed to carry for one while carrying for the other. And we do not think that in carrying coal for the Corporation to a station to which they will not carry coal for other persons the Company are, under the circumstances, abusing their powers as carriers on the line ; nor do we think that the one point which distinguishes Messrs. Lees from the other coal dealers, and which assimilates their position to that of the Corporation — the possession, namely, of a piece of ground in direct communication by a siding with the Company's ground — so far removes their case from that of the other coal dealers, or puts them in such like circumstances with the Corporation, to become an undue and unreasonable preference as against the Complainants (the Messrs. Lees), when we cannot hold it to be such as against the public at large." Judgment for the Company. — Tried in Court of Railway Conionission, June, 1874. — From Neville and Macnamara's Reports, vol. I, page 352. 284-1 Foreman v. G7'eat Eastern Railivay Company. — Action for undue preference in the arrangement of rates for coal. Plaintiffs import sea-borne coal into Great Yarmouth, and send it inland to different stations. The Company carry inland coal from Peterborough to same stations. The short distance rates were high, while the long distance rates were low, thereby prejudicing the Plaintiffs' coal, which was sent only short distances inland from Great Yarmouth. The Court held that if the principle on which the scale was graduated was a fair consideration of the cost to the Company of carrying coals for the different distances, or was justified by sea competition, it was not a valid objection to the scale ; that it was better adapted to the business of some merchants than of others ; and that its low rates for long distances were useless to those who dealt in the sea-borne coal. The Eailway and Canal Traffic Act does not prevent a railway company from having special rates of charge to a terminus to which traffic can be carried by other -modes of carriage with which theirs is in competition. The Company had also prevented the Plaintiffs from loading coal directly from the ships into the trucks at the quay side. This the Company were also required to do. Judgment against the 500 UNDUE PREFERENCE. Company. — Tried in Court of Railway Commission, June 22, 23, and Jidy 5, 1875. — From Neville and Macnamara's Re- ports, vol 2, page 202. 285. Bellsdyke Coal Company v. North British Railway Company. — Action for undue preference in the carriage of coal from the Monklancl district of the Defendants' railway. The complaint was that lower rates were granted to Baird & Co. for their coal than was charged to other colliery owners. The Plaintiffs' collieries were situated in a district which is connected with shipping ports and markets by the lines of the Xoith British Company, which Company' charge all the com- plainants at equal rates. The same Company, however, charge ^lessrs Baird & Co. a lower rate, and justified the difference on the ground of diminished cost of carriage, the natural position of Baird & Co.'s pit being better, and of the influence of com- petition. It is not of valid consideration for a reduced rate on coal, nor a circumstance that can substantially affect the rate at which it can profitably be carried, that the party favoured is the customer of the same railway company in goods of quite a different kind. Held — That the Railway Company pays no more than a due regard to its own interests if it charges for its services in pro- portion to their necessary cost, and has only such variety in its rates as there is in the circumstances of its customers; but that under the circumstances of the present case the principle had not been properly applied. Judgment against the Company for undue preference. — Tried in the Court of Raihvay Com- missioners, February 18, 19, and 20, 1875. — From Law Times Reports, vol. 33, page 29. 286. Holland v. Festiniog Railway Company. — Action in respect to undue preference. A railway company agreed with certain quarry owners, for a teim of fourteen years, to carry slates for them over the railway at rates varying from 3s. 3d. to 2s. 6d. per ton, according to the total quantity of slates carried by the railway company in each year. The quarry owners, on their part, agreed to send their slates by no other] mode of transit during tliat term. Subsequently a fresh agree- UNDUE PREFERENCE. 501 ment was entered into with one of the quarry owners for a term of thirty years, reducing the rate to 2s. l^d. Held — That there was nothing in the circumstance as to the exclusive use of the railway being in the one case for thirty years and in the other for fourteen years which would justify the difiference between 2s. 6d. and 2s. l^d. as charges for railway transit, and that such difference was an undue preference and prejudice within the meaning of the Eailway and Canal Act, 1854. The railway company alleged that the applicants, being obliged to use smaller waggons for their slates than those used by the favoured quarry owners, and sending slates of a lighter description, occasioned the railway company greater cost for carriage. Held — That Id. per ton would be a reasonable allow- ance for such increased cost. — Tried in the Court of Raihvay Commission, January 24 and Feh^uary 17, 1876. — From Neville and Macnama,ra's Reports, vol. 2, p«^e 278. 287. — ^^<-6 Victoria Coal and Iron Company v. The Neath and Brecon and the Midland Railway Companies. — Action in respect of undue preference. The obligation im- posed upon every railway company to afford all due and reasonable facilities for receiving and forwarding liy its railway traffic coming by another wliich forms with it a continuous line of communication, is not limited to the cases in which a railway company has accommodation to take over such traffic at the point of junction. Upon complaint by the lessees of a Colliery situated on the IN'eath and Brecon Railway to Swansea, that they were pre- vented sending the traffic of their colliery to Swansea by the railways of the two Companies (Defendants), which formed a ilirect route, and in consequence had to send it by a circuitous route, it was proved that the two railways formed a continuous line of communication, and that physically there was no diffi- culty in the traffic of the colliery being carried to Swansea by the direct route. Held — That the Ap})licants were entitled, under section 2 of the Raihvay and Canal Traffic Act, 1854, to have their traffic conveyed by any route they pleased, and to use the two railways as if they were one continuous line. Judg-ment 502 UNDUE PREFERENCE. against the Companies. — Tried in Court of Raikvay Commis- sion, April 10 and May 17, 1877. — From Solicitors' Journal, vol. 21, page 822. 288. Lock V. North Eastern Railway Company. — Action in respect to undue preference in allowing to some coal merchants cells or depots, and not to other merchants. The North Eastern Kaihvay Comi^any carried coal to stations for colliery owners only, and at each station there were cells or depots which were let on rental to colliery owners for their separate use, in which their coal was allowed to be stored and sold by retail. Colliery owners were allowed to send coal to a station although they had no depot at it, and the Eailway Company kept one or more depots at each station unappro- priated, through which coal so sent was delivered. Senders of coal who had not depots could send for delivery only, and had to arrange for their coal being carted away within a short time of its arrival. The sidings being reserved for goods traffic, such coal had to be unloaded into an unallotted depot, and for that there was an extra charge of 3d. per ton. Such coal was also charged with a higher rate for carriage, an allowance of 2^ per cent, being made in favour of coal sold through allotted dej)6ts. The Eailway Companj' attempted to justify the difference in the rates of carriage on the ground that i cwt. of coal was the loss to the coal owner in the retaihng of a ton of coal, and said that the extra charge of 3d. per ton was the equivalent of the rent paid for an allotted depot. Held — That neither the higher rate for carriage could be justified, because the loss to the coal owner in the retailing of a ton of coal was the same whether the coal was sold on or off the Eailway Company's premises, nor the extra charge of 3d. per ton for unallotted, because the service covered by the rent and the tonnage rate were not the same ; and that for the Eailway Company, who carried alike for those who had depots and those who- had not, to charge more in the one case than in the other, either for transport or for unloading, was an infringement of section 2 of the Eailway and Canal Traffic Act, 1854. Semble — That the Eailway Company cannot make any terminal charge for merely unloading coal into a depot where UNDUE PREFERENCE. 503 they have no sidings for delivery. — Tried in the Court of Rail- way Commission^ May 5, 1877. — From the Solicitors' Journal and Reporter y vol. 21, page 835. 289. Lloyd V. Northampton and Banhury Railway Company. — Action in respect to undue preference in through rates and terminal charges. The traffic was ironstone, at Easton Neston, Northamptonshire, where Plaintiff had one and a half miles of siding connected with the Company's line, Blisworth to Grreen's Norton Junction. Plaintiff's siding was three and a half miles from Blisworth. Distant two and a half miles from Plaintiff's siding was another ironstone mine with sidings, and it was from this other siding the alleged undue preference took its rise. It seemed these two sidings were grouped together at equal rates ; Plaintiff's position being a few miles nearer to the point the ironstone travelled (South Wales), he claimed a lower rate. Upon complaint by a trader that he was subjected to an undue preference within the meaning of section 2 of the Railway and Canal Act, 1854, because he was charged the same through rates for traffic from his siding as was charged for traffic from a siding which was situated at a further distance of two or three miles, it was proved that both sidings were situated in the same district, and had been grouped together by the Eailway Company for through rate purposes. Held — That no undue prejudice was caused by the same rate being made applicable to both places ; that, as a through rate was a gross sum of small amount for conveyance over a long route, it was impossible to make its amount vary with slight differences of distance ; that it was enough if places that were practically in the same district had the same rate, but as a district must have an area of some extent, there would necessarily be some points in it that were nearer than others to the common destination. Upon proof that a railway had charged more than they were entitled to take under the maximum clause of their special Act, the Kailway Commissioners made an order under section 2 of the Kailway and Canal Act, 1854, enjoining the railway company to desist in future from exceeding the limit 504 UNDUE PREFERENCE, prescribed by their special Act. Judgment for Company. — Tried before the Railway Conimission, July 22, 1878. — From Solicitors^ Journal, vol. 23, jjage G24. Case No. Undue Preference in respect to Rates for Carriage of GrOODS. Caee ^o. OAade v. mrth Eastern (1857) 272 Baxendale\.G.W (185S) ... 301 Qa/rtonv. B. i^ E.(l8o\)) 303 Gartony.B.4-E.([86l) 321 Woodger v. Great Eastern (1875) 291 Southsea Co. v. L. cf- S. W. (1876) 292 Greenop v. Houth Eastern (1876) 293 Budd V. L. 4- N. W. (1877) 294 Richardson v. Midland (1881) ... 295 DIGEST. In Oxlade v. North Eastern (i857) Justice Cresswell said — " A railway is justified in carrying goods for one person at a less rate than that at which they carry the same description of goods for another, if there be cir- cumstances which render the cost to the Company of carrying for the former less than the cost of carrying for the latter." In Baxendale v. Great Western (i858, Bristol case) the Com- pany's rate for paper was 35s. per ton, Bristol to Lon- don. On sender (Somerville) undertaking to give the Company all his traffic to other towns, they gave him a rate of 23s. 4d. per ton, and at first Avithout restric- tion, but subsequently restricted it as at owner's risk. Thus Plaintiff's lost Somerville's traffic, out of which they had received cartage from the Company out of the carted rate of Is. Gd. in Bristol and os. 4d. in London. The contention w*as the granting of the lower rate was undue preference, and Justice Willes held that it was undue preference within the Act. In Garton v. Biistol and Exeter (isso) it was proved the Company carried groceries and ironmongery from Bristol to Bridgewater for certain traders at 6s. j)er ton, in opposition to a steamer, but the Company would not carry them for Plaintiff* at the same rate. The Court held this to be undue preference. UNDUE PREFERENCE. 505 In Garion v. B. (j- E. (isei), owing to water competition, Bristol to Bridgewater, the Company made an arrange- ment with certain Bridgewater traders to carry certain goods at 6s. per ton if they gave up entirely the water carriage. During this time Plaintiff was charged the ordinary class rates. Held — Plaintiff was not entitled, in an action for money had and received, to recover from the Company the excess of the sums paid by him above those paid by other persons. In the previous trial, June 13, 1850, Chief Justice Cockburn had held this was undue preference. In Gartony. B. cj- E. (isei), Manchester packs, Bristol to Exeter, the Company were enabled to deliver in Exeter at 21s. 8d. per ton, while their charge to Plaintiff, a carrier, was 22s. 6d. This arose owing to the Company getting a cartage allowance from the Midland Company, who brought these packs from Manchester and did not perform cartage in Bristol from one station to the other. Held — Plaintiff was not entitled, in an action for money had and received, to recover from the Company the excess of the sums paid by him above those paid by other persons. In Woodger v. G, E. (i875) the Company made package rates for baskets of fish, Yarmouth to London — 18 lbs., 3d. ; 28 lbs., 4d. PlaintiffV baskets weighed 20 lbs., and consequently were charged 4d. under the 28 lbs. scale. The Railway Commissioners gave Judgment against the Company, and required them to carry the 20 lbs. baskets at 3d. (It requires one skilled in microscopy to discover the undue preference ; the only parallel is the Act 3 William and Mary, cap. 12, sec. See Hiley v. Home.) In The Souihsea and Isle of Wight Steam Fervij C'. mpang v. London and South IVesteni (i876) the Plaintiff' Company ran vessels from Southsea to Ryde, and the Railway Company booked passengers through from London to Ryde, which ])assengers were carried from Southsea to Ryde by a rival steamship company. The Plaintiffs complained of undue preference in respect to 506 UNDUE TREFERENCE. fares, comparing the added locals with the through rate. The Court gave Judgment for the Railway Company. In GreenopN. South Eastern (isrc) the Company agreed with Flageollet Freres to give them a rebate of 15 per cent, off the station to station rate^ and 4d. per package landing charge at Folkestone, if 850 tons of traffic were sent each calendar month from Boulogne Quay to London. Plaintiff contended this was undue preference. The Railway Commissioners held, owing to the circumstances as described in the case, it was not an inequality within the Act. In Budd V. London and North Western (1877) within a radius of six miles of Swansea the rate for tin plates to Liverpool was lis. 4d. per ton. Plaintiffs' works were twelve miles from Swansea, and they were charged 12s. 6d. per ton. Chief Baron Kelly held that this w^as undue i^reference within the Act. In Richardson v. Midland (issi) the brewers at Newark complained that the rates for ale from Newark to various stations was out of proportion and unfair when contrasted with rates from Burton to places the same distance, and that this was undue preference. The Railway Commissioners held that the rates from Burton were justifiable. 290. Baxendale (Pickford & Co.) v. Great Wester'ii Rail- way Company. — Action arising from undue preference in the rates for biscuits, Eeading to London. The rate had been 8s. 4d. per ton, collected and delivered, the cartage allowance being Is. 6d. in Eeading and 3s. 4d. in London. On the 19tb April, 1858, the Company gave Plaintiffs (Pickford & Co.) notice that they would make no cartage allowance on small consignments under 500 lbs. Thus the Company charged Plaintiffs on such consignments 8s. 4d. per ton, station to station, while the Company, for the same charge, collected and delivered to other persons such small consignments. This was] the alleged undue preference. The Company contended, by 7. Vic, cap. 3, they were empowered, when acting as carriers, to ] UNDUE PKEFERENCE. 507 make such charges (not exceeding sums limited by their former Acts) as they should think expedient; and by section 51 they are empowered to make arrangements for the assortment and delivery of goods" and parcels. By the 10 & 11 Vic, cap. 226, sec. 54, it is enacted that — "For the carriage of small parcels (that is to say, parcels not exceeding 500 lbs. each) the Company may demand any sura which they think fit, pro- vided always that articles sent in large aggregate quantities, although made up of separate parcels, such as bags of sugar, coffee, meal, and the like, shall not be deemed small parcels, but such term shall apply only to single parcels in separate packages." Chief Justice Cockburn said — " These provisions of the Act apply only to carriage on the railway. Here the Company profess to charge 8s. 4d. per ton in respect of the carriage from station to station, whereas in fact the charge comprehends something which is done beyond the railway. It might, per- haps, be a legitimate proceeding to alter the rate if the object of the Company was merely to bring" increased traffic on the line. But here the object manifestly is to make a profit of the collection and delivery. The charge of 8s. 4d. is ostensibly for carriage on the railway, but in reality it is to cover the collec- tion and delivery likewise. Parker v. Great Western Railway Com'pany is precisely in point. The real question here is whether the Company are, under colour of a charge for carriage upon the railway, making the Complainants pay for a service which they do not require at their hands. What right have the Company to compel all the world to employ them to collect and deliver ? In reality the charge is made by the Com- pany in a character and interest independent of the railway, viz., 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 denomi- nation in their table of rates. It is true the Company's Acts give them power to impose their own rates of charge for the carriage of this description of traffic, but these Acts give them no power to impose tolls or charges for collecting and deliver- ing ; and it is palpably an abuse of their powers if, under the name of a charge for can'ying, they impose, otherwise than with 508 UNDUE PREFERENCE. the assent of the parties concerned, a charge for a totally dif- ferent thing. And although the Legislature has conferred the power of imposing rates of charge, it has annexed to this power the obligation of imposing such rates equally, and the Company cannot be permitted to evade this obligation by colourably pretending that that which is in fact a charge for other things as well as for carriage is a charge for carriage only." Verdict against Company, with costs. — Tried in the Court of Conwion Pleas, November 15, 1858. — From Neville and MacnaTuard's Rejports, vol. 1 , }jage 202. 291. Woodger v. Great Eastern Railway Company. — Action in respect to undue preference. The Great Eastern Railway Company fixed certain package rates for the conveyance of fish from Yarmouth to London, as follows : — Under and Dot exceeding 18 lbs 3d. per package. 28 „ ... 4d. i> „ 42 „ 6d. ,, II 11 5G 5, 8d. „ Messrs. Woodger and Son, trading at Yarmouth, sent pack- ages of fish in baskets of 20 lbs. weight, for which they were charged under the above scale at the rate of 4d. as for 28 lbs. It was proved that they could not alter the size of their baskets without injury to their business, and that baskets 21 lbs. in weight did not cost the Company more expense or labour than baskets of 18 lbs. in weight. The Court gave Judgment for the Applicants, saying they were entitled to a 3d. rate for packages not exceeding 21 lbs. The only reason the Defendants gave for fixing the minimum rate of 3d. for 18 lbs. was because it was usual to have the minimum charge higher in proportion than the others, and because smaller packages cost greater trouble and expense. They had failed to prove that 21-1]). packages would cost more labour or expense to the Company than packages of 18 lbs. As this was the first case of the kind, there would be no order as to costs. — Judgment against the Company. — Tried in the Court of Rdilivay Commission, February 11, 1875. — From Nevillt and Macnamaroj s Reports, vol. 2, -page 102. This is an extraordinary decision, and it is difficult for at ordinary mind to discover wherein the undue preference can be discerned. UNDUE PREFERENCE. 509 292. ^'^« Southsea and Isle of Wight Steam Ferry Com- pany v. London and South Western Raihvay and London Brighton and South Coast Raiku ay. ^Action in resj)ect to inequality in rates. The Southsea and Isle of Wight Steam Ferry Company and the Portsmouth and Ryde Steam Packet Company respectively owned passenger steamboats plying between Southsea and Eyde. The Brigliton and South Western Railway Companies carried passengers by their lines to South- sea, and having entered into a traffic arrangement with the Rj'-de United Steam Packet Company (hereafter called the Packet Company) that their vessels should run between South- sea and Ryde in connection with the lines of the two Railway Companies, issued through tickets to passengers from places on their lines to Ryde, available by the boats of the Packet Com- pany, to the exclusion of the boats of the Southsea Steamljoat Company. Held — That under the circumstances this arrange- ment did not amount to an undue preference of the Packet Company. The Southsea Steamboat Company alleged that the fares charged by the Railway Companies in respect of the part of the journey performed on the steamboats of the Packet Company were unreasonably high. Held — That this was a question which could not be raised by the Southsea Steam Ferry Company against the Railway Companies. — Ti'ied in the Court of Railway Commission, May 4, 1876. — From Neville and Macnamara^s Reports, vol. 2, jxcge 341. 293. Greenop v. South Eastern Raihvay Company. — Action for alleged undue preference in granting a lower rate for a large quantity of goods than charged for small quantities. The South Eastern Railway Company entered into a special agreement with Messrs. Flageolett Frcres, by which the latter guaranteed to send between Boulogne Quay and London 8.50 tons of goods each calendar month. In consideration of that agreement the Company allowed Messrs. F. & Co. a rebate of 1 .1 percent, off their tariflf of station to station rates, and exempted them from a landing charge at Folkestone of 4d. a package^ payable to the Railway Company on goods of particular descrip- tions, and charged them from 6d. to Is. less tlian others on parcels exceeding 56 lbs. in weight. 510 UNDUE PKEFERENCE. Held — That as there were circumstances which enhanced the value to the Railway Company of the guarantee of quantity, and compelled Messrs. F. & Co. to incur considerable expense and labour to earn the allowance, and as the Railway Company had always been ready to make a proportionate allowance for a similar amount of traffic to anyone giving a guarantee similar (except as to amount), no injunction should be granted. The South Eastern Company carried goods at agreed through rates between London and Paris, for which the Railway Company undertook, for the fixed amount paid, every kind of service and charge incidental to the transit from point to point. The sum paid included clearing the goods in the Custom House, which was done only by the Railway Company's servants, or, if done by Custom House agents, no rebate was allowed by the Railway Company. Held — That the plan of delivery of goods between London and Paris at one fixed sum for the entire service, and free of any intermediate charges, was a great convenience to the public, and did not involve any infringement of the Railway and Canal Traffic Act, 1854. Seinhle — If a trader is able and engages to supply traffic with regularity, and in certain quantities, for the accommoda- tion of a Railway Company, so that a lower rate in his case is as remunerative to the Railway Company as a higher rate on similar traffic in the case of others, such an arrangement is not an inequality within the Railway and Canal Traffic Act, 1854. Judgment for Company. — Tried in Court of Railway GoniTYiission, April 19, May 12, 1876. — From Neville and Macnariiara^s Reports, vol. 2, page 319. 294". Biidd V. London and North Western Railway Company. — Action for £50 alleged overcharges on carriage of tin plates, Ystalyfera to Liverpool. Ystalyfera is situated twelve miles from Swansea, and the rate charged Plaintiff for tin plates, Ystalyfera to Liverpool, is 12s. 6d. per ton. The rate from Swansea and the tin plate works within a radius of six miles of Swansea is lis. 4d. per ton, owing to the competition by sea carriage. Plaintiff contends that this is undue preference. Chief Baron Kelly, Baron Cleasby, and Baron UNDUE PREFERENCE. 511 Huddleston held that this case was controlled by the case of Evershed v. London and North Western, and that it was conse- quently undue preference, and Judgment was accordingly against the Company. — Tried in the CouH of Exchequer, June 18, 1877. — From Law Times Reports, vol. 36, page 802. 295. Richardson v. Midland RailwOjy. — Action in respect to undue preference. The jNIidland Eailway Company carried beer from Burton at less rates than from Xewark, which was forty miles distant from Burton. Upon complaint by brewers at Xewark that their traffic was unduly prejudiced by not being carried on as fair terms as from Burton, it appeared that the Eailway Company charged all brewers at Burton a uniform rate of l^d. per ton per mile, station to station, with a minimum of 5s., including loading and unloading, and an abatement off the quoted rates of 9d. per ton for loading or unloading and 4^d. per ton for haulage when the brewers did those services themselves instead of employing the Eailway Company to do them, and that the Eailway Company's charges for brewers' traffic from Newark exceeded the charges from Burton to the extent of 25 to 30 per cent. Held — That the lower charges for carrying beer from Burton were justified. Judgment for Company. — Tried in the Court of RciAlway Commission, Jidy 12 and 13 and August 6, 1881. — From Solicitors' Journal, vol. 25, page 835. Cartage Allowances in respect to the Collection and Delivery of Goods (Small Packages under 500 lbs.) AND Parcels. ParUr v. G. W. (1844) . Parker V. B. 4- E. (ISol) . Parker V. G. W. (1856) . Parker v. G. W. (1856) Baxendale v. N. D. (1857) • Baxevdale v. G. W. (1858). DIGEST. In Parker v. Great Western (Feb., 1844), this was a case where the Company refused to allow cartage on Case No. No. .. .. 296 Garton y. B. 4- E. {1850) 385 297 Baxendale v. 0. W. (1863) 304 .. .. 298 Baxendale v. G. W. (1864) 305 299 Baxendale v. L. ^ S. W. (ISGC) 306 300 Goddard v. L. ^ S. W. (1874) ... 307 301 Robertson v. Mid. G. W. (1876)... 308 •,]'2 UNDUE PREFERENCE. packages under 500 lbs., and wliich was decided against them. In Parl-cr v. Bristol and Exeter (i85i) the Company iiiiide a cartage allowance of 2s. 6d. in London and Is. in Taunton, and Plaintiff demanded 5s. in London and 2s. ()d. in the country. It was left to the Jury to decide in (jlobo what Plaintiff should get; consequently no principle was established. The Jury gave Plaintiff £0 Os. 4d. In Parher v. Great Western (1856), this was a mixed case and various issues, principally as to the charging of parcels under 500 lbs. separately, instead of club- l)ing them together and charging the tonnage rate. The Company were successful in the main. In Parker v. Great Western (isjg) the Company made a three years' agreement with four carriers who had city (London) receiving-houses, to allow them 3s. 4d. per ton cartage and Is. 6d. per ton commission for agency on their giving up acting as carriers to towns on the Company's system. Plaintiff contended the Is. Gd. came out of the mileage rate, and that, practi- cally, his goods were charged that much more than such goods as the Company's three agents delivered. The Court held that this was not undue preference. In Baxendale v. JSforth Devon (i857) packs from Man- chester to Barnstaple, when sent through, were charged 50s. If invoiced Manchester to Bristol, the cost was 30.S , and from Bristol to Barnstaple 22s. 6d. delivered. Plaintiffs' case amounted to a complaint that the Company would not grant them any cartage allowance at Barnstaple, and that there was undue preference. Judgment was given for Plaintiffs. In Baxendale v. Great Western (is58, Reading case) the Company gave Plaintiff, notice that out of the rate of 8s. 4d. per ton, Reading to London, for biscuits, they would cease, on a certain date, to make the cartage allowance of Is. Gd. per ton at Pleading and 3s. 4d. per ton in London on small consif/nments of 500 lbs. UNDUE PREFEREXCE. 513 Such consignments, however, the Company continued to collect and deliver, and they continued to do so at the 8s. 4d. per ton carted rate. Chief Justice Cockburn held that this was undue preference within the Act. In Garton v. Bristol and Exeter (i859) Wall, the Com- pany's carting agent, had a receiving-house in Bristol city, and goods delivered there after 5.15 p.m. were carted to the station by Wall, who charged cartage for doing it, and such goods were sent forward by train same night ; whereas the Company's station was closed against Plaintiff at 5. 15 p.m. Thus Wall got Plaintiff's cartage trade, which was alleged to be undue preference. Chief Justice Cockburn held that it was undue prefer- ence within the Act. Judgment for Plaintiff. In Garton v. Great Western (i859) it was held to be undue preference towards a carrier not to grant him cartage allowance on packages under 500 lbs. which he had carted, while for same charge such packages are collected and delivered by Company's carts for traders. InBaxendale v. Great Western (1863) Plaintiffs claimed £443, cartage allowance of 3s. 4d. per ton in London and Is. 6d. per ton in country on consignments of goods under 500 lbs. The Company contended by their special Acts they were free to make any reason- able charge they thought fit for such parcels. Plaintiffs contended that the cost to the Company of carting goods to and from the stations as well as carrying them on their line must have exceeded the cost of carrying them on the line only, and that to the extent of this excess their charges must have been excessive and illegal. The Court felt bound by the decisions, Pickford v. Grand Junction and Baxendale v. Great Western, and gave Judgment for the Plaintiffs. Chief Justice Erie dissented. In Baxendale v. Chreat Western (issi), this was a case where the Company, being at liberty to charge what they think fit for parcels under 500 lbs., made a charge inclusive of collection and delivery, and when they 33 514 UNDUE PREFEKENCE. did not perform the service refused to make a cartage allowance. The Judgment was against the Company. In Baxendale v. London and South Western (I866) the first item was for overcharges from charging small packages under the " smalls " rate, instead of clubbing them together and charging the tonnage rate. Each package was labelled " Pickford, Guildford Station." Judgment for Plaintiffs. Second item — Not allowing Plaintiffs sufficient cartage allowance for collection and delivery and cartage in London and the country. Judgment for Plaintiffs. Third item — The Company carried, London to Newport, Isle of Wight, 20s. per ton. Plaintiffs did likewise, and the Company charged them lis. 8d., 16s. 3d., and 19s. 7d., according to class. Plaintiffs claimed a rate of 7s., London to South- ampton, to be equal with the Company, showing the other services on the goods cost 13s. Judgment on this head for Company. In Goddard v. London and South Western (i874) Plain- tiff claimed cartage allowance of Is. 6d. per ton in Salisbury and 3s. 4d. per ton in London, the same as the Company allowed Chaplin & Home. The dif- ference averaged 8^d. per ton, and the Railway Com- missioners accepted the Company's plea that this excess was given to Chaplin & Home for services of can- vassing, receiving-houses, representation, &c. In JRohertson v. Midland Ch^eat Western (i876) the Com- pany had two sets of rates — (1) for parcels under 21 lbs., for w^hicli the carriage is paid by affixing a stamp issued by the Company ; (2) ordinary rates for parcels over 21 lbs. The Company's carting agent received Id. per parcel for the ordinary parcels, and in con- sideration of this allowance carted the stamped parcels free. Plaintiff claimed to be paid Id. per parcel for cartage on the stamped parcels, which the Company refused. The Railway Commissioners held that here there was no undue preference. 296. Parker v. Great Western Rail/way Company. — Action UNDUE PREFERENCE. 515 for undue preference in respect to charges, allowance, cartage, &c., between Plaintiff, a carrier, and the Company. 1. The Company had from February, 1842, to April, 1843, allowed the carrier 10 per cent, off the regular rates from London on traffic sent from London. The allowance was made for the service for loading and unloading and re-loading, weigh- ing, making out ticking-off notes and carriers' declaration tickets. This the Company had refused to further allow. 2. The Company during the same period had allowed 5d. and lOd. for collection and delivery of small parcels under 1 cwt. and 2 cwt. This was discontinued by the Company, who performed the collection and delivery by their own carting agent. 3. The practice of the Company was, if a number of packages were from one sender to several consignees, the weight was clubbed and charged on the aggregate ; also, if a number of persons brought several packages for one consignee, the weight was clubbed and charged on the aggregate. The Company refused to treat Plaintiff in like manner. Chief Justice Tindal held that the carrier (Plaintiff) could recover on the separate heads for the several sums overcharged as money had and received ; that in each case there was undue preference, and the Judgment must be against the Company. He said — " Of the sum constituting this third head of claim, £\7 would not have been charged had the carrier disclosed the names of the senders and consignees of the goods ; but we find nothing in the statute requiring him to make such disclosure, and the Company had no right to withhold from him, in con- sequence of his refusal to make it, any allowance to which he would have been otherwise entitled." Judgment against Com- pany. — Tried in the Court of Common Pleas, February 12, 1844. — From Manning and Oranger^s Reports, vol. 7, page 253. 297. PdTker v. Bristol and Exeter Railway Company. — Action in respect of cartage allowance on traffic sent from Paddington to Taunton. The Company made a cartage allow- ance of 2s. 6d. in London for collection or delivery, and Is. per ton in Taunton for collection or delivery. The Plaintiff 516 UNDUE PREFERENCE. demanded 5s. per ton for collection or delivery in London, and 2s. Gd. in Taunton. This action was brought to recover the amount of the alleged overcharges. On the first trial, Baron Parke held that the Plaintiff was entitled to maintain the action for such amount as the Jury should think that he had overpaid. Verdict for £9 Os. 4d. On the appeal case Chief Baron Pollock held that the case of Ashmole v. Wainivright was a decisive authority governing the present case. " I must, however, express the opinion which, if I were in a Court of Error, I should more freely express, that although I now feel bound by the case, I regret the decision, for it seems to me to break in upon a broad, intelligent prin- ciple — that the action for money had and received must be brought for a definite, clear, and certain sum, and not for some unknown sum which is to depend upon the verdict of a Jury, who are to decide whether the Defendant has received the money or not." Judgment against the Company. — Tried in the CouH of Exchequer, June 17, 1851. — From Oliver, Beavan, and Lefroy's Raihvay Cases, vol. 6, page 776. 298. Parker v. Great Western Raihvay Company. — Action in respect to cartage allowance and charges on small packages under 500 lbs. The Plaintiff sent to a station of the Company, to be carried by the same train, several parcels of goods, each of which weighed less than 500 lbs. Each parcel contained goods of the same class, namely, drugs, drapery, glass, and stationery, and was a separate package. The Company charged for each parcel separately according to the " smalls " rate. The Plaintiff claimed to have the whole treated as one parcel, and charged at the correct tonnage weight. Held — That under 5 & 6 Will. IV., cap. 107, sec. 171, and the 10 & 11 Vic, cap. 226, sec. 53, whether the correct weight of these parcels did or did not exceed 500 lbs., the Company were entitled to charge for each parcel separately. The Plaintiff sent on the one day three loads of goods to the station. Each load contained a package of coffee, of which he was both sender and consignee, to be forwarded to the same station^by the same train, which was accordingly done. Each package weighed less than 500 lbs., but the three together UNDUE PREFERENCE. 517 exceeded that weight. The Plaintifif at each delivery gave in, as required, a "ticking-ofif" note, in which the weight was entered by him. On the first and second deliveries the weight was entered as "carried forward," but the Company had no other notice that any other goods would be sent before the starting of the train, and placed each load as it arrived on trucks, this being necessary for the due conduct of their business. Held — That under these circumstances the Company were entitled to charge for each load as a separate package. The Plaintifif on two occasions sent, at the same times respectively, several packages of goods, of which he was both sender and consignee, to be forwarded by the same trains to the same destination. The articles sent were glass, stationery, shoes, drapery, and ironmongery. Where the parcels were less than 500 lbs. the Company charged them as " smalls." Held — That manufactured goods, in the 10 & 11 Vic, cap. 226, sec. 49, must be understood in a popular sense, as meaning not merely goods produced from the raw state by manual skill and labour, but such as are ordinarily produced in manufactories ; and that the maximum rate in that section applied only to tonnage rates, and not to cases where the Company were en- titled to charge parcel rates. Held also — That under the same section the Company were entitled to charge beyond the maximum rates a reasonable sum for loading, covering, and unloading, if they rendered these services. The Company agreed with certain persons called " agents," who were to collect and receive goods for carnage by the Com- pany, and also to deliver them to the consignees, to pay them for these services 3s. 4d. per ton for cartage, 2d. for delivering each lot of parcels under 200 lbs. and for each separate parcel. Is. 6d. per ton for agency. The first two of these sums were insufficient remuneration for the services performed, the de- ficiency being made up by the Is. 6d. per ton. The Plaintiff himself collected, carted, and delivered all goods sent by him for carriage on the railway, and, having paid the charges for carriage under protest, claimed a return of part on the ground that he was charged unequally in comparison with the " agents." Held — That under the 50th and 51st sections of the 7 Vic, 518 UNDUE PREFERENCE. cap. 3, the charges for conveyance between the same stations must be equal to all persons ; but that the Company had power to make such arrangements as they thought fit with particular persons in regard to the collection and delivery of parcels, sub- ject only to appeal to the Sessions by any person to whom they were unwilling to grant the same facilities. — Tried in the Court of Queen's Bench, 2Zrcl February, 1856. — From Law Journal Reports, vol. 25, page 209. 299. Parker v. Great Western Railway Company. — Action, under eight counts, for alleged overcharges in the classi- fication and rating of small packages under 500 lbs. weight — in fact, whether certain small packages should be charged as " smalls " or aggregated and charged at the tonnage rate. The Plaintiff was a carrier, and his object seems to have been to send small packages under 500 lbs. in the aggregate at the tonnage rate, and charge his different customers a higher charge, as for single packages, and thus to obtain the profit on the " smalls " instead of the Eailway Company, which is one of the phases of the " packed parcel " system. First Case. — On Nov. 1, 1852, Plaintiff sent a consignment of packages. Each package was under 500 lbs., and the aggre- gate of all the packages was also under 500 lbs. Each package contained goods in the fourth class, viz., drugs, drapery, glass, and stationery. Plaintiff claimed to have the weight of the lot clubbed together and charged at the tonnage rate. Judge Coleridge — " The power of the Company to charge for parcels after Nov. 1, 1852, depended on their Act, 10 & 11 Vic, cap. 226, sec. 53, by which it is enacted — ' The Company, for the carriage of small parcels, that is to say, parcels not exceeding 500 lbs. weight each, may demand any sum which they think fit : provided always that articles sent in large aggregate quantities, although made up of several parcels, such as bags of sugar, coffee, meal, and the lilce, shall not be deemed small parcels, hut such term shall apply only to single parcels in separate packages.' Each of the packages being a separate package, they can- not constitute one small parcel within the Act. When they form each a small individual package, there is nothing in the Act which compels the Company to charge for them as one, although their aggregate weight falls short of 500 lbs. UNDUE PREFERENCE. 519 Plaintiff relies on the words ' articles sent in large aggregate quantities, although made up of several parcels.' The illustra- tion which is added, however, seems to us clearly to show to what these words apply — ' such as bags of sugar, coffee, meal, and the like ;' and the meaning is obvious. Plaintiff also relies upon the fact that the contents of each package were included in the fourth class. But it is undoubtedly true that the classifi- cation table has nothing to do with the question of parcel or no parcel ; it is made for a wholly different purpose. We are therefore of opinion the Company were entitled to charge for each parcel separately." Second Case. — The only difference in this case is that the aggregate of a similar consignment was over 500 lbs. Justice Coleridge said — " As we have in the pre^dous case decided that each parcel is the subject of a separate charge, our Judgment in this case is the same as the preceding." Third and Fourth Gases. — These relate to consignments of like kind, but sent before the operation of the 10 & 11 Vic, and the governing statute was the 171st section of the 5 & 6 Will. IV., cap. 107. Plaintiff relies upon the term " single parcel unconnected with parcels of a like nature." Plaintiff on the same day, within an hour or so, sent three loads of goods to the Paddington Station. The goods in all the loads were con- signed from and for him, and a separate note was sent with each. On each load was a bag of coffee. The total weight of the three bags was given on the last and third note, and the first and second bags contained the weight respectively " car- ried forward." The Company charged each bag as a separate " small." Each bag coffee weighed less than 500 lbs., but the three bags weighed over 500 lbs. Justice Coleridge said — " The Company had no further notice than might be inferred from this memorandum. The Company placed each load of goods as it arrived into trucks ready for the train, and it was found that this was necessary for the due conduct of their business as carriers. The question is, whether the Company were bound to charge for the coffee in the aggregate, or might charge for each package of it as a separate parcel ; and after much considera- tion and doubt, we are of opinion that they were not so bound, but might charge for each package as a separate parcel. 520 UNDUE PREFERENCE. Certainly they would have been so bound if the three packages of coffee had been delivered at the station at the same time. The very circumstance of there being three consignment notes in itself leads to the inference of three separate deliveries on three separate contracts, and this is strengthened by every other fact in the case. We cannot see any evidence of any contract between the parties which comprised the carriage of three parcels as one." Judgment for Company. Fifth and Sixth Cases. — The consignments were identical in these cases. He relied on the term " manufactured goods " — " For all cotton and other wools, drugs, and manufactured goods conveyed any distance not exceeding 50 miles, the sum of 3d. per ton per mile " — used in the 47th section of the 10 & 11 Vic.,, cap. 226, and thence, by inference, introduced into the 49th section. " Forming the best judgment which we are able in. so doubtful a matter, we think that the term ' manufactured goods ' must be understood in a popular sense, and must mean, not merely goods produced from the raw state by manual skill and labour, but such as are ordinarily produced in manu- factories ; and we should therefore exclude stationery, and include shoes, ironmongery, glass, and drapery. The arbitrator will have to apply this principle to the several articles enumerated according to the evidence adduced before him." Seventh Case. — Plaintiff contended the Company had no right to charge for the " loading, covering, and unloading " of goods over and above their maximum tolls. The Judge, how- ever, decided that the Company by their Act of 10 & 11 Vic, cap. 226, sec. 49, had a special authority for so doing. Eighth Case. — Claim of undue preference in cartage allow- ance at Paddington Station. The Company had made a special agreement with four carriers or carting agents, having city receiving-houses and all carriers' appliances, viz., Henry Harris, John Bloomfield & Sons, W. Wright, and T. Seaward. The scale of allowance to all was similar. The following is from Harris's agreement for agency and cartage : — 38. 4d. per ton, general charge for all goods and smalls carted. 1b. 6d. per ton, commission for agency. 2d. for smalls under 2 cwt. to one consignee and one dtlivery. 2d. each for single smalls under 2 cwt. and a single delivery. UNDUE PREraRENCE. 521 2d. booking fee payable by the public on down parcels. 2d. each for pitching flats of butter. 3d. „ „ „ poultry and meat under 4 cwt. Is. „ „ „ when over 4 cwt. Empty meat, poultry, and provision packages to be collected and brought to station free. Up empties to be charged at the tisual cartage rate. The agreements were for three years, and contained the usual safety clauses. Since the agreements the agents have given up their respective trades to and from the places to and from which the Company carry goods, but they have continued their usual trade to other places. The Judge said — " It is found by the case that the 3s. 4d. per ton and the 2d. are insufficient as a remuneration for the services performed, and that the deficiency is made up by the allowance of Is. 6d. per ton, and it is guaranteed that the tonnage for the Is. 6d. agency charge shall annually amount to a certain quan- tity at the least." The Plaintiff's contention amounted to this, that the Company had to pay these agents Is. 6d. out of the mileage receipts, and that practically his goods were charged that much more than such goods as the Company's agents delivered ; that that, under the Company's Act, 7 Vic, cap. 3, sec. 50, was unequal charging. The Judge, however, held that this section did not apply, saying — " It is to be observed that section 50 only requires equality when the passengers or goods pass over the ' same portion of and over the same distance along the railways.' Nothing prevents the Company from charging A. more for carrying him twenty miles on one part (of the- rail- way) than they charge B. for carrying him the same distance on another part, or even from carrying at a loss on one part of the line, though the difference must be defrayed, as here it is alleged to be (the Is. 6d. per ton agency), out of the general receipts of the Company. We think, for the reasons given, that in this case the Plaintiff's case fails. Upon the whole case our Judgment, therefore, is for the Company. But the case must go back, if required by either party, to the arbitrator, to apply the principles we have laid down in the 5th case." Verdict for Company. — Tried in CouH of Queen's Bench, February 23, 1856. — Frora Law Journal Reports, vol. 25, page 209. 522 UNDUE PREFERENCE. 30 O. Baxendale v. North Devon Railway Company. — Action arising from undue preference in rates for "packs," Manchester to Barnstaple. Plaintiffs (Pickford & Co.) obtained from all the Companies concerned, except Defendants, a cartage allowance on the traffic, viz., cartage allowance at Manchester, also at Bristol, for transference from Midland to Bristol and Exeter Goods Station ; but the Defendants refused to make any cartage allowance at Barnstaple. If packs were consigned at Manchester through Carver & Co., and thence to Barns- taple by J. C. Wall (Bristol and Exeter Company's and North Devon Company's carting agent), the charge to consignee was 50s. per ton. The rate, Manchester to Bristol, was 30s., and Bristol to Barnstaple, delivered, 22s. 6d. per ton. Plaintiffs contended there was undue preference, because the Company charged them 22s. 6d. per ton when they carted the packs at Barnstaple, while some traders could get their packs through at 50s. per ton instead of 52s. 6d. per ton. Chief Justice Cockbum said — " The practical result of your arrangement is — the goods are carried for 2s. 6d. per ton less if they are sent through Carver & Co. and Wall. What right has the Company to impose such a restriction upon the senders of goods ? How can it be for the benefit (counsel alleging same) of the public that they should be compelled to transmit their goods through a given individual? The whole is one charge. The North Devon Eailway Company forms an integral part of the whole line. The charge is one entire charge, and unless the whole is justifiable the injunction must go. The rule ought at all events to be limited so as to impose upon the North Devon Railway Company as much only of the burden as properly belongs to their line. The Plaintiffs' purpose will be answered probably by making the rule absolute in the more limited form suggested." Verdict against Company. — Tried in the Court of Cmimon Pleas, November 9, 1857.— From Neville and Macnamara's Cases, vol. 1, page 180. 301 , Baxendale v. Great Western Railway Company. — Action for undue preference in rates, Bristol to London. Prior to August, 1857, Plaintiffs (Pickford & Co.) had the carriage of Mr. Somerville's paper, which was carted by sender from his mill Um)UE ■ PREFERENCE. 523 at Bitton to the Bristol Station, for which he received Is. 6d. cartage allowance, and carted by Pickford & Co. at Paddington, where they received 3s. 4d. per ton. These allowances were made out of a carted rate of 22s. Id. per ton, first class rate. In August, 1857, the Company advanced the paper to third class, charging 35s. per ton. Pickford & Co., in like manner, had to advance, at which ISIr. Somerville was vexed, and threat- ened to send his paper by sea. The Company was made aware of this, but declined to reduce. Early in December the Com- pany made a special rate with JNIr. Somerville of 23s. 4d. per ton for his paper, they doing the cartage in London, included in this charge. Plaintiffs remonstrated, but without effect. It appeared Mr. Somerville had undertaken to give all his outward and inward traffic to the Company, which before he had sent by other carriers : — " Golden Mills, Bitton, Feb. 19, 1858. "Dear Sie, — In consequence of your charging me for the conveyance of the. paper, at my exclusive risk, from Bristol Station to London, 23s. 4d. per ton, delivered within your usual limit, I agree to send bv your line all my goods going to stations and places to which you carry. " William Somerville. " To Mr. Wilkinson, Agent for G. W. Ry., Bristol." This letter, however, was long subsequent to the making of the rate. A previous letter, dated December 9, 1857, upon which the bargain was no doubt made, said nothing about owner's risk : — "Dear Sir,— I am quite willing to send all my papers by your Company to the various places to which you deliver, on condition that your rates are not higher than other companies'. I shall instruct my people to send all goods by you 60 long as our arrangement of carrying to London continues. " William Somerville." Justice Willes said — " The question is,, whether it is legiti- mate ground for giving a preference to one of the customers of the railway that he engages to employ the Company's other lines (other than from Bristol to London) for traffic distinct from and unconnected with the goods in question or their carriage, and we are of opinion that it is not. The goods are the same in quantity and quality, in the cost of receiving and carriage, and in the profit which is thereby made, whether received from Somerville or from Plaintiffs. It is undue and 524 UNDUE PREFERENCE. unreasonable to charge more or less for the same service, according as the customer of the railway thinks j)roper or not to bind himself to employ them in totally distinct transactions. This case is different from Nicholson's. The difference in the charge there was sustained upon goods from and to the same places between persons who sent large quantities at a time, and stipulated to send given large quantities every year, as against other persons who declined to do so. In fact, the advantages made a difference similar to that between selling at wholesale and at retail, the profit of carrying the goods sent in large quantities at the less rate equalling or exceeding the profit when the coal was sent in smaller quantities at the higher rate." Verdict for Plaintiff. — Tried in Court of Common Pleas, November 9, 18/58. — From Laiv Journal Reports, vol. 28, page 69. 302. Gabion v. Great Western Railway Company. — Action in respect of undue preference in relation to cartage allowance as a terminal charge. Plaintiff, a carrier, contended that, although he performed the service of collection and delivery at Bristol and Paddington, he was charged upon goods under 500 lbs. weight the same as other persons for whom collection and delivery was performed. Previous to April 12, 1858, the Company allowed 3s. 4d. per ton in London and Is. 6d. per ton in Bristol cartage allowance ; but after that date they would make no such allowance, the Company's object being to induce persons to employ the Company to collect and deliver goods, and to exclude carriers from competing with the Company in such business. The Company contended that they made no profit upon the collection and delivery of small parcels, but that this service is gratuitously performed by them as ancillary to the carriage from station to station. Chief Justice Cockburn said — " In the case of Baxendale v. Great Western Railway (Reading case) it was carefully concealed from the Court that the Company make no profit by the collec- tion and deUvery. The Attorney-General's argument there was that it was competent to the Company to make profit on or off their line. Independently of the concealment, assuming that the UNDUE PREFERENCE. 525 Company derived no profit from the collection or delivery, still the Complainants incurred a disadvantage or undue preference from being charged the same for the carriage of their goods as if they availed themselves of a service which they did not require at the hands of the Company. The effect is this, that in order to compete with the carrier the Company make a man who has his own waggons and horses — and therefore does not require them to collect and deliver for him — pay more than he ought to pay for the transit on the railway. It is clearly a case of undue prejudice against the persons not wanting the accommodation. If the Company feel aggrieved they must go to the Legislature. I must confess that I have always felt that the packed parcel system operates hardly upon the railway. The Company, however, have no right to make a charge nominally for carriage upon the railway, which is in reality for that and something else, and so impose upon a portion of the public services which they do not desire to avail themselves of. That is not a legitimate mode of getting rid of the contest with carriers." Verdict against Company. — Tried in the CouH of Common Pleas, January 29, 1859. — FroTii Neville and Macnamara's Reports, vol. 1, page 214. 303. Garton v. Bristol and Exeter Railway Company. — Action in respect of undue preference acting against Plaintiff, a carting agent. ( 1 ) That the Company refused to accept goods from Plaintiff at their Bristol Station after 5.15 p.m., that being the closing time, whereas the Company received goods from their own cart- ing agent. Wall, up to 7 p.m. and 8 p.m. (2) That Plaintiff, by delivering goods at Wall's receiving- houses in the city after 5.15 p.m., could get the goods forwarded by the railway the same night, but that Wall charged cartage from the receiving-house to the station ; that Plaintiff's liveli- hood was the collection and cartage delivery to the station, and that his business was thus unduly prejudiced by Wall getting the trade from him. (3) That the Company's station to station rates between Bristol and Bridge water were 6s. 8d., 8s. 4d., 12s. 6d., and 16s. 8d., which were charged to Plaintiff, while at the same j'JH UNDUE PREI-ERENCE. time the Company carried groceries and ironmongery goods for certain traders in Bridgewater at 6s. per ton, whereby Plaintiff was prejudiced. Chief Justice Cockburn held that in the two first counts there was undue preference in allowing Wall to bring in goods after .5.15 p.m.; that the collection and delivery came within the principle of Baxendale v. Great Western Railway (Reading case), and the Judgment must be for Plaintiff; that in the third count it was suggested that there was certain water carriage which might enter into competition with the railway between Bristol and Bridgewater, but it was not shown that it actually did compete with it. " We are not told what is the rate of charge for such water carnage as compared with the carriage by the railway. A prima facie case is made out on the part of the Plaintiff; it is shown that he has not the same facihties afforded him for the conveyance of his goods as are conceded to certain favoured individuals. That called on the Company for an explanation ; none has been given, and in the absence of all explanation as to the grounds of this preference, we cannot come to any other conclusion than that the arrangement is made with a view to induce parties to engage with the Com- pany as carriers directly, to the exclusion of a rival carrier." Justice Williams said — " There is no reason why the Eailway (.'ompany may not prescribe a certain hour after which they will not receive goods to go by the next train. So also, if they please, they may protract that time somewhat by half an hour or an hour, on condition that those who come after the appointed time and within the protracted time should pay something extra that may be reasonably sufficient to compensate for the extra hands that may be required to conduct the business which has accumulated in consequence of the goods that are brought so late." Justices Willes and Byles concurred. Judgment against Company. — Tried in CouH of Common Pleas, June 13, 1859. — From Common Bench Reports, vol. 6, page 639; Lavj Journal Repoa-ts, vol. 28, page 306. 304-. Baxendale v. Great Western Raihvay Company. — Action for £443 10s. 2d., cartage allowance of 3s. 4d. per ton in London and Is. 6d. per ton at country stations upon consign- UNDUE PREFERENCE. 527 ments of goods under 500 lbs. weight. On April 17, 1858, the Company gave Plaintififs notice that from that date they would not pay cartage allowance upon such consignments. The Company were incorporated by the 5 & 6 Will. IV., cap. 107. Under a similar Act Plaintiffs, in a previous similar case (^Pick- ford V. Grand Junction Raihvay Company, 10 M. & W., 399), claimed to have established the law in cases of this nature. The Company's old Act, and several subsequent ones, had been amended by the Acts of 7 & 8 Vic, cap. 3, & 10 and 11 Vic, cap. 226. Under the 51st section of the 7 & 8 Vic, cap. 3, the Company's position of caniers is more distinctly defined ; whereas, in the old Acts, railway companies were incorporated rather as road proprietors, the railway to be used by persons with their own engines and carriages, on payment of a mileage toll. The section 51 provides and enacts that — "In all caees where the Great "Western Eailway Company are entrusted with the carriage or deliTery of any goods, wares, merchandise, or parcels, or other matters or things, it shall be lawful for the said Company to enter into such arrangements as they shall think fit with all or any of the persons to whom such goods, wares, &c., may belong, or by whom the same may be brought or sent for conveyance on the said railway, with reference to the warehousing, assortment, weighing, loading or unloading, risk of stowage, and liability to alleged pilferage or damage, or tciih reference to the collection and delivery of such goods; . . . and it shall be lawful for the said Company to enter into and make such arrangements as they may see fit with any Company or person with regard to the collection or delivery of such goods," &c. By the 10 & 11 Vic, sec. 53— " For the carriage of small parcels not exceeding 500 lbs. each the Com- pany may demand any sum which thty think fit ;" then follows the usual exceptions. The Company contended (1) that they are entitled to make the charges complained of, the amount charged for conveyance being within the authority given them by their Acts ; (2) that the rates complained of were charged to all persons alike, and it was open to the plaintiffs to have availed themselves of collec- tion and delivery by the Company ; (3) that no partiality or unfairness, as against the Plaintiffs, existed ; (4) that the remedy (if any) is not by action, but by the appeal given by the Company's Act to the Court of Quarter Sessions. Plaintiffs' chief plea was — " That the cost to the Company of carting goods to and from the stations as well as carrying them on their 528 UNDUE PREFERENCE. • line must have exceeded the cost of carrying them on the line only, and that to the extent of this excess their charge must have been excessive and illegal." The majority of the Court (Justices WilHams, Byles, and Keatin cr) said they felt bound by the decisions in Court of Exchequer and this Court in Pickford v. Grand Junction (10 M. & W., 399), Parker v. Great Western (13 L.J., 105 C.P.), Baxendale v. Great Western (28 li.J., 81 C.P.), and gave Judg- ment for Plaintiffs. Chief Justice Erie dissented, and gave a long written Judgment in favour of the Company, of which the following are extracts : — " I think the Company's Act of 10 (fell Vic, cap. 226, intended to overrule some of the principles supposed to be deduced from Pickford v. Grand Junction, and to free the Company therefrom. The real interest at stake here, as in a vast extent of other similar litigation, is the interest derived from the interceptor of parcels from consignees, so that the interceptor may reduce many to one by aggregation. In an action an intercepting carrier has no greater right than any other customer, although under the Traffic Act (17 & 18 Vic, cap. 31), if this Court thinks that the process of intercep- tion ought to be supported, anything that hinders interception may be prohibited by injunction as an undue prejudice. If the terms of the Company are not unlawful, if all equally have the accommodation they offer, and all equally are called on to pay the same price for the same accommodation, according to the price for that accommodation as the carriers have chosen to classify it, they have violated no duty. But the law, which requires equal impartiality, makes no reference to the difference in the amount of benefit received from the service, according to the circumstances of each customer. The words of the 53rd section of the statute are — 'For the carriage of parcels under 500 lbs. weight the Company may demand any sum which they think fit,' These words grant absolute discretion. This is evidence of an intention to give a free discretional power, controlled only by the common law duty to carry for all according to the terms they profess. According to Plaintiffs, the supposed right of carriers carrying by railway to intercept the profit on parcel? UNDUE PREFERENCE. 529 by the process of packing, and to claim a reduction on account of the carting which they do for themselves, if it ever existed, remained unaffected by the 10 & 11 Vic, cap. 226, sec. 53. According to the Company, the Legislature expressed thereby an intention to release the Company from any liability in respect of such supposed right. The real grievance is the loss of large sums of money which are received for the carriage of parcels, a loss constantly increasing in amount as the process of packing is better understood and the number of intercepting carriers multiplied, and a loss accompanied both with hindrance in the conduct of business and also with much litigation if the Companies make any effort to save a portion of the sums due for the carriage of parcels being intercepted. It has been an undisputed fact that the carriage of jDarcels under a given weight is the most profitable part of the business of a carrier by rapid conveyance, and was well known to be so before railways existed. Eeceipts for tonnage rates depend on the weight of things classed as tonnage goods. Eeceipts for parcels depend mainly on the number of senders and very slightly on the weight of consignments. The Company receive, London to Eeading, for two parcels 7 lbs. each 3s. ; if the interceptor packs the two together in one joackage and consigns it by the Company, he pays Is. 6d. to the Company and keeps Is. 6d. for himself. If the parcels are of the same value the interceptors will have added double the weight and the risk and taken away half the pay due to the Company according to the tariff. By skilful aggregation they may increase the weight and the risk to a very great extent and diminish the pay to the Company, and keep for themselves the difference between what the Company so receives and what is due according to the tariff. The senders pay the same sum, whoever may be entitled to keep it ; the contest for it is between the Comjmny and the inter- ceptor, and unless the Company have power to check the process of interception it is probable that the interceptor may, by skilful aggregation, bring all consignments into tonnage weights, and imdersell the Company on parcel rates and keep all the parcel profit, and leave all the outlay, labour, and risk for the Company. All the work is done by the Company, the same whether they keep all their earnings or not. The quantity of S4 530 UNDUE PREraRENCE. his business {i.e., the Company's) is no gi'ound for depriving a carrier of the hire he stipulates for, and still less is it a reason for granting it to another. The tonnage and parcel rate have no proportionate relation; one is according to weight and the other according to number. A pound of silver weighs as much as a pound of gold, but the weight is no indication of the relative value of the two pieces of metal, neither is the charge for a given weight of tonnage goods any indication of what ought to be the charge for a given weight of parcel goods. In each case this litigation has been unsuccessful to the Com- panies on the various grounds of fact on which the Court, performing the functions of a Jury, have given their verdict. But it has been constantly renewed on a principle which probably will ultimately prevail, viz., that service must be paid for according to contract. The Company profess to carry upon certain terms ; among them is the term that parcels shall be paid for at a higher rate than the same weight of tonnage goods. All who employ them are bound to fulfil all the terms on their part to be fulfilled, and those who prevent the Com- pany from receiving the stipulated price for parcels by inter- ception do not fulfil this term, but the contrary. Pickford v. Grand Junction has been frequently referred to as if it laid down a general rule either in respect to packed parcels or of deduction for cartage. But it is not so. It is a decision on the facts and statutes there in question, and as there under- stood by the Court. The earlier decisions in the series of cases which followed Pickford v. Grand Junction by implication recognise the right of the Companies to prevent interception by other carriers, because they decide that the Companies had in those cases lost the right only on account of their acquiescing in inclosures of parcels made by customers not carriers, who combined to pay the Companies less than was their due by resorting to the process of making up two or three parcels into one, called an inclosure. These decisions are that 'packed parcels ' are of the same description as inclosures, and as no extra charge was made for inclosures none could be sustained for packed parcels. All the series of cases consist of separate verdicts, founded on different sets of facts, and oft.en on different private Acts ; they therefore are not binding as adjudications in UNDUE PREFERENCE. 531 other cases. It seems to me probable the Legislature, in 10 & 11 Vic, cap. 226, sec. 53 (1847), desired to remedy the evil of interception. If so, it follows that one charge for receiving, carrying, and forwarding is lawful, being expressly authorised by the section now in question. But if this section is found to fail I am nevertheless of opinion the Company are entitled to Judgment on their second ground of defence without any aid from that statute. Neither a principle nor authority has been adduced to show that such a mode of charging was prohibited at common law. The notion that it is unlawful as against the Plaintiffs is founded on an erroneous construction of the statutes requiring impartial equality. Plaintiffs contend the circumstances under which they pay the charge are not the same as the circumstances under which others pay it, because the benefit from the service (cartage delivery) is not so great to them as it is to some others ; and they contend, in effect, that the law requiring railway companies to charge equally authorises the Judges to inquire whether the customers were benefited equally, and, if they thought not, they might order a deduction accordingly, and in that event the railway companies should be bound to analyse their charge and apportion a part of it for each part of that duty, and make a deduction of the sum appropriated to each part of that duty in respect of a customer who takes no benefit from that part. If the Plaintiffs have the right that the charge should be apportioned to the amount of benefit they derive from the service charged for, so has every other customer, because the Plaintiffs have no privilege at law as intercepting carriers. Such apportionment, with exactness, is not practi- cable. The companies have an interest in obtaining consign- ments of parcels direct to themselves, and to prevent interception; that interest is legitimate, and they have a right to regulate the conduct of their business for the purpose of protecting that interest. In an action the Court must give Judgment according to law, without regard to persons or their interests ; and the parties have a right to try any question of fact by a Jury, and to repeat the trial as often as a new cause of action arises and they are dissatisfied with a former verdict, and to bring any question of law before a Court of Error. These 532 UNDUE PREFERENCE. are, in my opinion, rights of inestimable importance, and parties ought not to be deprived of them by applications to a single tribunal deciding at once both fact and law by reference to what the Court may consider to be an undue prejudice to one of the parties. The Company are, in my opinion, entitled to Judgment on their second point without aid from the 10 & 11 Vic, cap. 226, as the Plaintiffs' case is not supported either by principle or authority." Judgment, by majority of Court, against the Company. — Tried in Court of Common Pleas, Nov. 19, 1862, and May 26, 1863. — Fro^yi Law Journal RepoHs, vol. 32, page 225. The Company appealed to the Exchequer Chamber and failed, as Chief Justice Cockburn affirmed the verdict of the Court below. — From Law Journal. Reports, vol. 33, page 197. 305. Baxendale V. Great Western Railway Company. — Action in respect to recovery of £443 10s. 2d., being the amount of alleged overcharges made by the Company to the Defendants for the carriage of consignments of goods under 500 lbs. weight between April 17 and November 15, 1858. By the 7 & 8 Vic, cap. 3, sec. 50, the Great Western Railway Company are empowered, whenever they shall act as carriers, to charge for the carriage of goods, &c., such sums as they may think expedient within the limits pointed out by their Acts of incorporation, provided such charges are made to all persons equally ; and section 51 authorises them to enter into such arrangements as they may think fit with reference, amongst other things, to the collection and delivery of goods. By a subsequent Act (10 & 11 Vic, cap. 226, sec 53) the Company are empowered to charge for small parcels — "that is to say, parcels not exceeeing 500 lbs. in weight " — any sum which they may think fit. Held — That the Company are still bound to charge equally, and cannot lawfully demand for the carriage of parcels from station to station a sum which shall include in the cost the col- lection and delivery, and so impose an unequal burden on those who do not require the performance of these latter services at their hands, and that money had and received will lie to recover back sums demanded and received in excess. Judgment against UNDUE PREFERENCE. 533 the Company. — Tried in the Court of Common Pleas, May, 1863. — From ScoWs Common Bench Reports, vol. 14, "page 1. An api^eal was carried to the Court of Exchequer Chamber, where the Judgment of the Court of Exchequer was afl&rmed. — Tried in the Court of Exchequer Chamber, February 4, 1864. — From Scott's Common Bench Reports, vol. 16, page 137. 306, Baxendale v. London and South Western Railivay Company. — Action for overcharge for money had and received. There were three items of claim — ( 1 ) overcharges from charging small packages under the " smalls " rate, instead of clubbing them together and charging the tonnage rate ; (2) over- charges in not allowing Plaintiffs a sufficient cartage allowance for collection, delivery, and cartage in London and the country; (3) overcharges on goods intended for Isle of Wight, carried London to Southampton, charged higher proportionally than goods carried from London to Southampton, and on to the Isle of Wight, by the Company at a through rate. Plaintiffs, Pickford & Co., collected packages of goods from various senders to various consignees, and then labelled each package in large letters " Pickford & Co., Guildford Station." Plaintiffs claimed that these packages should be clubbed together and all charged at the tonnage rate. Baron Channell held that this case came under Pickford v. Grand Junction Railway Company (10 M. & W., 39), Crouch v. Great Northern Ralhvay Company (25 L.J., 137 Ex.J, and Sutton v. Great Western Raihvay Company (3 H. & C, 800), and the Court were clearly of opinion that on this head the Plaintiffs were entitled to recover. In the second case the Judge said that the Company's iiounsel very properly admitted that he could not support the course pursued l)y the Company, and therefore on this head the Court also held the Plaintiffs entitled to recover. In the third case the Company collected goods in London, carried them to Southampton, and thence per tramway and steamers to the quays at Newport and Cowes, Isle of Wight, at 20s. per ton. Plaintiffs, who carried between the same points, were charged by the Company, Ijondon to Southampton, station to station, lis. 8d., 16s. 3d., and 19s. 7d. per ton, according to class. Plaintiffs contended that the cartasfo in London cost 5s. 034 UNDUE PREFERENCE. per tou, the transit, Southampton to Cowes or Newport, 8s. per ton, and that consequently, on deduction of 13s. from the 20s. rate, the Company were exercising undue preference if they charged them over 7s. per ton, London to Southampton. They claimed as overcharge beyond 7s. per ton. Plaintiffs contended the effect of such charges was to create an inequality, and to give the Company a monopoly in a business foreign to the purpose of their constitution — see Chief Justice Cockburn in Re Baxendale v. Great Western (28 L.J., 81 C.P.), Same v. Same (32 L.J., 225 C.P.), Garton v. Bristol and Exeter Railway Com^pany (28 L.J., 306 C.P.). Baron Channell said—" The Company are clearly entitled to do what they profess to do, viz., to carry on the business of common carriers from London to Newport, using theii- line for that purpose as far as it is available, that is, from London to Southampton, and acting as common carriers off their line beyond the Southampton terminus. When the Com- pany avail themselves of the tramway and steamers referred to, to enable them to deliver at Newport, this is not auxiliary and subsidiary to their business as carriers on their line, but to their position as common carriers from London to Newport, avail- ing themselves of their own line as far as it serves their pur- pose." Judgment on this head for the Company. — Tried in Court of Exchequer, January 22 and 31, 1866. — From Laiv RepoHs, vol. I, page 137. 307. Goddard v. London and South Western Railway Company. — Action by a common carrier in respect to undue preference— that the allowance for cartage made by the Com- pany out of the collected and delivered rate on goods traffic between Salisbury and London was insufficient, and less than the Company paid their own carriers, Messrs. Chaplin & Home, viz., Is. 6d. at Salisbury and 3s. 4d. in London; also, that the cartage allowances on parcels and empties traffic was in like manner insufficient. The Commissioners found that, in respect to the goods, the difference averaged 8id. per ton, and accepted the Company's plea that this excess was given to Chaplin & Home for services of canvassing, receiving-houses, representation, &c. Plaintiff succeeded in an order for a slight increase on jjarcels and empties, but practically the Judgment UNDUE PKEFERKNCE. 535 was in favour of the Company ; yet the Company were made to pay the costs. — Tried in Court of Railway Commission, December 22, 29, and 30, 1873, and January 2, 3, and 6, 1874. — FroTn Laiu Times Reports, vol. 31, page 769. 308. Robertson v. Midland Great Western Railway Company. — Action in respect of undue preference. Plaintiffs (Fishbourne & Co.) are carting agents, and have receiving- houses in Dublin city for parcels, &c. The Railway Company carry parcels under two rates. Small parcels under 21 lbs. and under a certain size are carried at a low rate, and the carriage is paid by affixing a stamp issued by the Company. Other parcels are carried in the usual way. The Company's carting agent (J. Wallis) receives for collection and delivery to and fi'om the Company's station, on the ordinary parcels, Id. per parcel, and in consideration of this charge he collects and delivers the stamped parcels free. Plaintiff is paid the Id. per parcel in like manner on parcels he collects being unstamped parcels. His claim is that he should be paid Id. per parcel also on stamped parcels he collects. The Railway Commis- sioners held there was no undue preference. Judgment for Company. — Tried in Court of Railway Commission, August 5, 1876. — From Law Times Reports, vol. 35, page 636. Railway Companies Perfoeming Cartage and Refusing to Allow Carting Agents (Carriers) to Perform- such Service. Parker y.Ot. Western (ISii) ... Garton v. B. Sf Exeter (1859) Baxendale v. West Mid. (18G2) Wannnnv. S. C, C18G4) Case Case No. No. 296 Pickford V. Caledonian (18C6) ... 310 385 Parkinson ^ '. G. W (1871) ... 311 309 Fishbourne V. G S. i' W. (1875) 31.3 312 DIGEST. I In Parker v. Great Western (1844) the Company refused to make any allowance for cartage, but were willing to perform for him all the things which formed the con- sideration for the charge, but which in fact he per- /JBG UNDUE PREFERENCE. formed for himself. Held — That the Company were not justified in withholding the cartage allowance. In Garton v. Bristol and Exeter (1859) Wall, the Com- pany's carting agent, had a receiving-house in Bristol city, and goods delivered there after 5.15 p.m. were carted to the station by Wall, who charged cartage for doing it, and such goods Avere sent forward by train same night ; whereas the Company's station was closed against Plaintiff at 5.15 p.m. Thus Wall got Plaintiff's cartage trade from him, which Chief Justice Cockburn held to be undue preference. In Baxcndale v. West Midland (i862) goods carried at "■ carted rates," Bristol to Kidderminster, consigned to "care of Pickford," the Company refused to deliver to Pickford at the station, and persisted in delivering them to consignees. Goods not addressed to any con- signee, but "marked," and also consigned to "care of Pickford," the Company delivered to Pickford's office in the town. The Lord Chancellor, on appeal, gave Judgment against the Company. In Wannan v. Scottish Central (18G4) Plaintiff, a carrier at Perth, lodged general orders from consignees, desiring that he should cart their goods from the station. The Company refused to comply. Lord Justice Clerk said — " It is in the option of the Company to do so or refuse to do so, and if they refuse to all persons indifferently it is certainly clear that they are not offending against the provisions of the second section of the Traffic Act." Lord Benholme said — " I think the Company were not obliged to fulfil such orders. They can stand upon this, that they are not bound to do more than deliver according to the address." Judgment for Company. In Pickford v. Caledonian (i866) Plaintiff complained that goods consigned to his care in Glasgow for delivery were delivered by the Company's carting agent. Lord Justice Clerk, in substance, held that the goods were not addressed to care of Pickford, and the insertion of ■p. & Co." on tlie invoices received in Glasgow from UNDUE PREFERENCE. 537 the Midland Railway Company was not sufficient. He held it was the duty of the Caledonian Company to deliver the goods to the consignees at the places to which the goods were addressed in Glasgow. In Parkinson v. Ch^eat Western (i87i) Plaintiff lodged a number of written orders from consignees of goods in Cirencester, ordering that the Company should give the goods of these persons to Plaintiff to deliver from the station. The Company refused to comply, and delivered the goods by their own carts. Justice Willes held the Company have a right to deliver goods, but have no right to give themselves an undue and unreason- able advantage, because in doing so they take away from the facilities afforded to the public. Judgment against Company. In Fishbourne v. Great Southern and Western (i875) Plaintiffs delivered to the Company goods they had collected, and consigned them "To the care of F. &Co.," intending through their agents to perform the cartage from the terminal destination station to consignee's house. The Company refused to recognise this, and delivered the goods by their own agents. The Railway Commissioners gave Judgment against the ComjDany. 309. Baxendalev. West Midland Railway Company. — Action by carrier to receive goods at the station when con- signed to his care. The Company ceased to employ Pickford & Co. (Baxendale), Plaintiffs, as carting agents at Kidder- minster and Witney, and employed another carting agent. Goods arriving invoiced and addressed to care of Pickford. The Company refused to give to Pickford at the stations, and dehvered said goods by their new carting agent to consignees, as the rate was a delivered rate. Goods " under mark " con- signed to Pickford the Company also refused to deliver to Pickford at the stations, but carted them to Pickford's place of business in each town, where they were refused, and afterwards brought back to the stations and subsequently delivered to Pickford at the stations, and cartage charged and paid under protest. The Plaintiff filed a bill in the Court, of Chancery, 538 UNDUE PREFERENCE. praying for a declaration that the Company were bound to deliver to him the goods consigned to him, deducting for his services in cartage a sum from the through rate charged by the Company for that service. The Company contended the Plaintiff's remedy was not in the Court of Chancery, and even if it were the nature of the relief is not such as a Court of Equity will grant. If there be no remedy at law there is none in equity. The goods for Kidderminster came from Bristol, and the Company contended there was no contract whatever with them, but that the contract was with the Midland Com- pany at Bristol. Vice-Chancellor Stuart said — " Looking at all the allegations in the bill, I think it is alleged in substance upon the bill, and in terms sufficiently precise, that the Company have under- taken to carry and dehver goods for the Plaintiff, and have so performed their duty as to the delivery of the goods as to violate that right which the Plaintiff and every other member of the public has, namely, to have goods delivered according to the address which the goods have." Verdict against Company. — Tried in Vice-Chancellor Stuarfs Court, June 24 and 25, 1862. — Law Times Reports, vol. 6, page 679. The Company appealed to the Lord Chancellor, and Lord Westbury heard the case. On the appeal the decision was affirmed, but without prejudice to any question of jurisdiction at the hearing. The jurisdiction arises with reference to the obligations of companies to abide by direction of the Acts of Parliament under which they are constituted, and the right of the Court to confine them by injunction within the limits of those duties. — Tried before Lord Chancellor Westbury, Novem- ber 5, 1862. — Laiv Times Reports, vol. 7, page 297, and vol. 6, page 678. 31 0. Pickford & Co. v. Caledonian Railway Company. — Action for undue preference. The Plaintiffs (Pickford & Co.) complained that at the Company's (Caledonian) station at Crlasgow the firm of Cameron & Co. (the Company's carting agents) had facilities for sorting arrival goods in sections for different cartage districts of the city, and that such accom- modation was denied to them (Pickford & Co.). UNDUE PREFERENCE. 539 Lord Justice Clerk said, in substance, that during October and November, 1862, Cameron & Co. had an average of 152 tons and 141 tons of goods daily to deliver, while during the same period Pickford & Co. had 9 tons and 15 tons daily to deliver. " Now, an arrangement to divide goods into districts may be an extremely desirable and proper thing where there is an immense quantity of goods, and a very unnecessary and use- less thing where there is a small quantity. But, still further, it must be kept in mind that the Caledonian Company make use of their own premises for the purpose of assorting these goods, in order to enable their own carters the more readily to get them away from the station. But they are not bound, so far as I can see, for that reason to lend their premises to other carters for the purpose of assorting their goods. A thing may be very reasonable and proper to be done by the Eailway Com- pany themselves within their own premises, with a view to speedy and accui-ate delivery within the city of Glasgow, which they are not in the least degree bound to communicate to other people. These people, if they desired to have such a division of their goods, may make it for themselves, with premises of their own. I cannot hold that this is what the statute calls an undue and unreasonable preference of the one party, or an undue and unreasonable prejudice and disadvantage to the other, and therefore I think there is no case under this head of the petition." The second head of the petition was in respect to a monthly ledger account given to other persons and denied to Pickford & Co. The Judge said — " All that it is necessary to say upon that head is that not one word of evidence has been offered in support of it, and therefore there is no more to be said about it." The next complaint was that a small box like a sentry-box, in the station, which had been used as a writing place by Pickford & Co. when they acted as carting agent for the Com- pany, had been taken from them, and it had been given to Eobb & Co., who had succeeded Pickford & Co. as Company's carting agent, and also a similar box was given to Cameron & Co., another Company's carting agent. The Judge said — "It is just as plain that, no more than the other case to which I have 540 UNDUE PREFERENCE. referred, can this by any reasonable construction be brought within the words of this Act of ParHament." The next complaint was that in sixty-two cases where goods which either arrived in Glasgow labelled, consigned, or addressed to Pickford & Co.'s care, or with respect to which the consignees thereof directed them to hand over the same to the petitioners for delivery, they were not delivered to Pickford & Co., but were carted to consignee's address in Glasgow by the Company's carting agents. It appeared only seven of these cases had any evidence to support them, but the packages were not labelled or addressed to Pickford & Co. On the invoices to Glasgow, in the column " To whose care," was inserted "P. & Co." It was not alleged that the sender authorised this. The invoices were from the Midland Railway Com- pany. The Judge said — " Are the Midland Company entitled to bind the Caledonian Company, merely because they choose to put these letters there, to deliver these goods only to Pickford & Co., when the sender of the goods, who has the true title to tell them how they are to be delivered, desires (by the address) that they shall be delivered at 205, Argyle Street, Glasgow ? It appears to me the Caledonian Company would not have been justified in attending to such marks as these. I think there is no evidence whatever to show that delivery to Pickford & Co. was refused of goods consigned to them." The Judge, however, agreed there was one consignment Pickford & Co. ought to have had, but he did not consider one case suffi- cient to establish a practice. Judgment for Company. — Tried in Court of Session (Scotland), May 3, 1866. — From Neville and Macnamara^s Reports, vol. 1, page 252. 311. Parkinson v. Great Western Raihvay. — Action by a common carrier arising from undue preference. Plaintiff was a carrier at Cirencester, and a number of consignees, his customers, gave the Company general written orders, which were lodged by Plaintiff, that he was to cart all their goods from the station. The Company declined to act upon these general orders, and required a specific order for each consign- ment. As Plaintiff could not possibly lodge specific orders for each consignment, the Company delivered the goods by their UNDUE rREFERENCE. 541 own carting agent, Budd, and this constituted the undue preference for which relief was sought. Justice Willes said — " When we turn from the statute to the decisions, we find this point considered in three cases, in which it has been decided that a railway company, when they are also common carriers off the railway, have no right to throw obstructions in the way of other common carriers. That has been carried so far that in one case, where a company advertised that no additional charge was made for delivery, this Court held that this was giving themselves an undue preference and subjecting other carriers to undue prejudice and disadvantage. That being so, it appears to me that the Company have done what they had no right to do in throwing difficulties in the way of Plaintiff. The Company have no doubt a right to receive and deliver goods if they think proper, and make a charge for so doing ; but they have no right to give themselves an undue or unreason- able advantage in respect to such traffic, because in doing so they take away from the facilities afforded to the public. On the whole, it appears to me plain from the statute, as estab- lished by the decisions, that the Company have no right, in respect to traffic off the railway, to seek to prevent members of the public from availing themselves of the railway in the way that suits them best." Justices Byles and Keating concurred. Judgment against Company. — Tried in CouH of Common Pleas, June 10, 1871. — FroTn Laio Times Reports, vol. 24, page 830. 312. Wannan v. Scottish Central Raihvay Company. — This was a case where Alexander Wannan, a carrier at Perth, took action against the Scottish Central Eailway Company, under the Traffic Act, for undue preference, inasmuch as general orders lodged by him from consignees, desiring that he should cart their goods from the station to the town, were disregarded, and the traders' goods were carted by the Company's carting agent. Plaintiff failed to bring the case under Traffic Act. Lord Justice Clerk said — " There is no undue preference ; it is simply the Railway Company saying, ' We cannot take these general directions, as it is a great inconvenience to us to fulfil them.' In this respect these general orders are like boxes which many large establishments have at the Post Office. These 542 UNDUE PREFEKENCE. boxes are a very gi'eat convenience to the parties who have them, and probably save a deal of time to the Post Office officials. But the Post Office authorities are under no obligation to allow them ; their duty is to deliver all letters according to their address, while at the same time it is quite within their power of convenience for themselves to accommodate the public in this way. And if the Eailway Company in like manner found that they could, consistently with their arrangements and interest, agree to take general directions from traders as to the delivery of goods, they would do so ; but it is in their option to do so or refuse to do so, and if they refuse to all persons in- differently, it is certainly clear that they are not offending against the provisions of the second section of the Traffic Act." Lord Benholme concurred, saying — " I think the Eailway Com- pany were not obliged to fulfil such orders ; they can stand upon this, that they are not bound to do more than deliver according to the address." Lords Cowan and Neaves concurred. Tried in the Second Division of Court of Ses8io7i (Scotland) ^ 1864. 31 3. Fishhourne v. Great Southern and Western Railway Company (of Irelaoid).-^ Action for undue preference in divert- ing goods, whereby the carting agent lost the cartage delivery. Fishhourne & Co. delivered to the Great Southern and Western Railway Company, at their station, goods for conveyance, addressed to the consignees. With such goods a consignment note was handed on which was written " To the care of F. & Co." The Company refused to recognise and act upon this, and delivered the goods at terminal station by their own agents or other carting agents. Held — That the words " To the care of F. & Co." imported that the goods, on their arrival at the terminal stations, were to be given to Fishhourne & Co. or their agents for delivery to the consignees ; that, as between the Railway Company and Fishhourne & Co., the latter were the senders, and that the Railway Company accepted the goods upon the terms stated in the consignment note, not being at liberty to employ their own or other carriers to deliver the goods from their railway to the consignees, and should have delivered the same to Fishhourne & Co. or their agents. UNDUE PREFERENCE. 543 Judgment against the Company. — Tried in Court of Raihvay Commission, July 31 OMoi August 11, 1875. — From Neville and Macnamara's Reports, vol. 2, page 224. Undue Preference — Adivhttance of Omnibuses and Cabs into Station Yards — Inequality of Passenger Fares. Hozier y. Caledonian (^1855) Earlier v. Midland (1856) Caterham Railway v. L.B. 4" S.C. (1856) Painter v. L. B. ^ S. C (1857)... Beadelly. Eastern Counties (1857) 317 Marriott v. L. ^ S. W. (1857) ... 318 Case No. 404 314 315 316 Barratt v. Great Northern (1857) Jones V. Eastern Counties (1858) Ilfracomhe P. C. Co. v. L. Sf S. W. (1868) Toomer v, L. C. ^ B. (1877) ... City of Dull in S.P. Co. t. L.4-N. W. (1881) No. 757 405 319 779 320 DIGEST. In Hozier v. Caledonian (i855) Plaintiff complained of the inequality of passenger fares, Edinburgh to Glas- gow, as compared with those, Motherwell to Edinburgh or to Glasgow. Lord President M'Neil said — The statute provides for giving undue preference to parties pari2Kissu in the matter, but you must bring them into competition in order to give them an interest to com- plain." Judgment for Company. In Caterham Railway v. London Brighton and South Coast (1856) Plaintiffs complained the passenger fares, London to Caterham, were not in proportion to the fares charged by Defendants to other places on their own line. Justice Cresswell said that all per- sons travelling between Caterham and London were charged the same, and held the charges made between other places were not applicable in respect to undue preference. The Judge would not interfere in the complaint that a sufficient number of London Brighton and South Coast Company's trains did not stop at Caterham Junction ; nor in the complaint that third class return fares were not issued, London to Caterham. Judgment was, however, given against the Company 544 UNDUE PREFERENCE. on the fourtli complaint, that a convenient covered station was not provided at Caterliam Junction, and, as such accommodation was provided at other London Brighton and South Coast stations, it was undue preference. In Barker v. Midland (1856) the Company prevented Plaintiff driving his omnibus in their Stamford station yard to set down and take up passengers. Chief Justice Jervis said — " Plaintiff has no right to make a contract (with his passengers) for the use of the Com- pany's private property." Justice Crowder said — " The action is not brought by anybody who wished to go by the railway or send his goods ; he is not there- fore within the regulations made for persons who use the railway for themselves or their goods." In Barrait v. Great Northern (1857) Plaintiff claimed to be booked through from King's Cross to Settle. This the Company refused to do. The Company held not liable to issue a through ticket on to another Com- pany's line because the two lines are continuous, no case of public inconvenience having been made out. In Marriott v. London and South Western (iss?) the Company refused to let Plaintift"s omnibus into their station yard at Kingston to take up and put down passengers, while at the same time they allowed an omnibus belonging to one Williams such access. Chief Justice Cockburn held this to be undue preference Avithin the Act. In Beaded v. Eastern Counties (1857) Plaintiff's two hackney cabs were not allowed by the Company into their Shoreditch station to ply for hire, because the Company, for a sum of £600 a year, confined the privilege to one Clark. Justice Cresswell held that in Marriott's Case he was prevented setting down pas- sengers at the door of the booking-office, while here the object was to ply for hire from the station. In Marriott's Case the decision rests expressly upon the inconvenience inflicted upon the public, not upon the UNDUE PREFEEENCE. 545 particular grievance to the Plaintiff. Judgment for Company. In Painter v. London Brighton and South Coast (1857) a fly proprietor at Brighton complained he was not allowed access for his flys into the Brighton Station, while an exclusive right was granted to some other fly proprietors. Justice Williams said the complaint must come from those Avho use the railway. Judg- ment for Company. In Jo?ies V. Eastern Counties (i858) the Court of Com- mon Pleas refused to gi'ant a rule for an injunction to compel the Company to issue season tickets between Colchester and London on same terms as was the custom between Harwich and London, the plea being undue preference. In llfracomhe Public Conveyance Company v. London and South Western (1868) Plaintiffs complained their omnibus Avas not allowed into the Com])any's Barn- staple station, while the omnibus of one Pridham was allowed in. The Lord Chief Justice said it must be clearly shown the course complained of occasioned in- convenience to the public, and that regard must be had to the general convenience of the public rather than the wishes or interests of individual job-masters. Judgment for Compan}'. In Toomer v. London Chatham a7id Dover and South Eastern Companies (i877) the Railway Commissioners ordered the two Companies to run certain trains on the spur line of 17 chains connecting the two Strood stations of the two Companies. The Court of Ex- chequer Division overruled this, holding the Com- missioners had no jurisdiction. In City of Dublin Company v. London and North Western (issi) the Plaintiffs complained of undue pre- ference, inasmuch as the fares for passengers from the North Wall route (by London and North Western Company's steamers) to London were disproportion- ately lower than the fares from Westland Row (Dublin) 546 UNDUE PREFERENCE. by Plaintiffs' mail steamers from KingstoAvn, while the class of accommodation, speed, and service were nearly equal. The Railway Commissioners held that the fares by the North Wall route should be only 10 per cent, less than by the mail route. 314". Barker v. Midland Railway Company. — Action under the Eailway and Canal Act for withholding reasonable facilities by preventing Plaintiff driving his omnibus into the station yai'd at Stamford to set down and take up passengers. Chief Justice Jervis said — "As I understand the first count, they proceed upon the notion that the- station is the private property of the railway, subject to a qualified right of the public to go over it in order to use the railway. Now it is not pretended the Plaintiff himself uses the railway, but that he carries persons who do so, and he has no right to make a con- tract for the use of the Defendants' private property. It is said the Railway and Canal Act does not take away the common law remedy. It certainly gives no remedy to support the count said to be founded upon it." Justice Crowder said — " This is not an action brought by anybody who wished to go by the railway or send his goods by it, but by a person who makes it his business to bring passengers and goods to the station, and I therefore think that he is not within the regulations made for persons who use the railway for themselves or their goods." Justices Cresswell and Willes concurred. Judgment for Com- pany. — Tried in Court of Common Pleas, May 6, 1856. — From Law Journal Reports, vol. 25, page 184. 31 5 . Caterham Railway Company v. London Brighton and South Coast Railway and South Eastern Railway. — Action in respect of undue preference in accommodation of trains between London and Caterham and inequality of fares, and that third class return tickets were not issued, and absence of shed for passengers at Caterham Junction. The Plaintiffs were the Caterham Railway Company and the Defendants the London Brighton and South Coast Railway and the South Eastern Rail- way. The London and Brighton Company own the line from New Cross to Caterham Junction, where the latter railway UNDUE PREFERENCE. 547 branches off for five miles to Caterham. The South Eastern own the line from London to New Cross. Justice Cresswell's Judgment, as follows, illustrates the points at issue : — Complaint 1. — Unequal fares per mile charged to the Caterham Branch compared with the fares charged by the Companies to other places on their lines. The Judge said — " No inequality is complained of in the fares going to Caterham Junction (from London) as compared with the fares charged for other distances on the London and Brighton Hue, and it is not enough to show an inequality as compared with the rates charged on another line (Caterham Railway). The words of the section are — 'No such company shall make or give any undue or unreasonable pre- ference 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 disadvantag in any respect whatsoever.' It cannot be said that because persons may travel for a less charge between Epsom and London than they can between Caterham and London, any undue or unreasonable preference is given to any particular person or company, or that they are subjected to any undue or unreasonable prejudice or disad- vantage. All persons travelling from Caterham to London are charged the same." Complaint 2. — That a sufficient number of trains are not allowed to stop at the Caterham Junction, and the times of stopping are inconvenient. " It is not shown there is any other station on the line of a similar character, and to which the traffic is of the same description, at which greater facilities are given ; and I think no sufficient case is made out for our interference on that ground." Complaint 3. — That the Companies refuse to issue third class return tickets to Caterham. " By the time table it appears that third class return tickets are not issued to any station on the line below Croydon. There will, therefore, be no rule on that ground." 548 UNDUE PREFERENCE. Complaint 4. — The absence of a convenient covered station at the Caterham Junction. "I think the absence of such accommodation subjects passengers on the Caterham line to undue prejudice and incon- venience, and it appears there are covered stations at all the other places on the line. As to that, the rule may go." Judg- ment for Defendants in 1st, 2nd, and 3rd complaints, and for Plaintiffs in 4th complaint. — Tried in CouH of Conimon Pleas, November 28, 1856. — From Neville and Macnamara's Reports, vol. 1, page 32. 316. P*^^ ^ 'i^^^' "^'* London Brighton and South Coast Railway Company. — Action in respect to undue preference, inasmuch as certain fly proprietors were not allowed to take their flys into the Company's Brighton station. The Railway Company granted exclusive permission to a limited number of fly proprietors to ply for hire within their station. The Court refused to grant a writ of injunction against the Company under the Eailway and Canal Traffic Act, 1854, at the instance of a fly proprietor who was excluded from participation in this advantage, although it was shown by the Complainant, and by several other fly proprietors who were likewise excluded, that occasional delay and incon- venience resulted to the public from the course pursued. Justice Williams said the complaint must come from those who use the railway. — Tried in Court of Common Pleas, June 9, 1857. — From Neville and Macnamara's Reports, vol. 1, page 58. 317. Beadell v. Eastern Counties Railway Company. — Action by Plaintiff (a proprietor of two hackney cabs) to have access to ply for hire at Shoreditch (London) station yard. The Company refused permission on the ground that they had granted an exclusive privilege to a Mr. Clark to take up pas- sengers at their station, for which they received £600 a year from him. Plaintiff contended this was an undue preference given to Clark, and imposing an undue and unreasonable preju- dice on him (Plaintiff). It appeared the Company allowed cabs to come into the yard and set down passengers, but they were then compelled to leave the yard. Plaintiff contended it was a similar case to Marriott v. London and South Western UNDUE PREFEREKCE. 549 Rcvilway Co'mpany, but this the Company denied. Justice Cresswell said — '•' In Marriott's Case the Pkintiff was prevented by the Company from setting down his passengers at the door of the booking-office. Here the only complaint is the Plaintiff is not permitted to ply for hire in the station yard. The case of Barker v. Midland Railway has some bearing upon this. There the Court held that an omnibus proprietor who carried passengers and their luggage for hire to and from a railway station could not maintain an action against the Company for refusing to allow him to drive his vehicle into the station yard. I am of opinion the Plaintiff has made out no case for the exercise of our juiisdiction under the statute." Justice Williams said — " There is no suggestion here, as was in Marriott's Case, that there is not ample accommodation for the public. In Marriott's Case (see Case 318) the decision rests expressly upon the inconvenience inflicted upon the public, not upon the particular grievance to the Plaintiff. I think it is by no means an unreasonable thing, but, on the contrary, very important to the interests of the public, that the vehicles which ply for hire in the station yard should be kept upon their good behaviour by being under the control of the Company. The affidavits upon which this motion is founded do not show that the agreement with Clark is not highly beneficial to the public as well as to the Company, and it has been expressly laid down in a case which has not been cited, Barratt v. Great Northern Railway Company (26 Law Journal Eeports, 83 C.P.), that the statute in question was passed for the benefit of the public, and not for that of individuals." Judgment for Compan3\ — Tried in Court of Common Pleas, June 1, 1857. — From Neville and Macnamara's Railway Cases, vol. 1, j^^^V^ '^^ > f^^*'^ Xaw Journal RepoHs, vol. 26, page 250. 318. Marriott v. London and South Western Railway Company. — Action to obtain access for an omnibus into the Kingston Station. Plaintiff ran an omnibus between Kingston (Station (London and South Western) and Twickenham Station (Richmond and Windsor), running through Teddington, Hampton Wick, and the old town of Kingston-on-Thames. On the 15th November he was prevented driving his omnibus 550 UNDUE PREFERENCE. into the station yard, whereby passengers had to walk and luggage carried, exposed to the weather, a distance of 72 feet. Plaint iflf pleaded undue preference, as a coach running between Horsley and Leatherhead and Kingston was allowed in, and so likewise was an omnibus running to the old town of Kingston- on-Thames. The Company pleaded that the station yard was the property of the Company, and that there was undue com- petition between Plaintiff and Williams, and that Williams' omnibus was sufficient for the requirements of the traffic. Chief Justice Cockbum held that " this ease falls within the terms of the statute as a case of undue and unreasonable preference and advantage to a particular person, and the Com- pany must admit the omnibus of Plaintiff into their station at all reasonable times for the puq50se of forwarding, receiving, and deKvering traffic upon and from their railway, and in the same manner and to the same extent as other vehicles of a similar description. There may be cases where, from want of space, a Company can only admit a limited number of vehicles to compete for the traffic to and from their railway, but there is nothing of the kind shown here." Judges Cresswell, Williams, and Crowaer concurred. — Tried in Court of Com- raon Pleas, Hilary Term, 1857. — Loav Journal Reports, Common Pleas, vol. 26, page 154. 319. Ilfracomhe Public Conveyance Company v. London and South Western Railway Comjjany. — Claim of undue preference. Plaintiffs owned omnibuses and flys which plied from the Company's Barnstaple station to Ilfracomhe. One Pridham carried on a similar business, and was allowed, by an arrangement with the Company, to drive his carriages into the Barnstaple station yard, and take up passengers from every train which arrived ; whereas Plaintiffs were compelled by the Company to keep their carriages outside the gates, 300 yards distant from the station. The Lord Chief Justice said that it was much for the con- venience of the public that railway companies should make arrangements for the attendance of a sufficient number of carriages for the conveyance of passengers arriving at their stations. If anyone indiscriminately might bring his carriages UNDUE PREFERENCE. 551 for that purpose, it would give rise to great confusion and obstruction ; that in all these cases, therefore, it must be clearly shown that the course complained of occasioned inconvenience to the public, which was not shown by the affidavits produced ; and that regard must be had to the general convenience of the public rather than to the wishes or interests of individual job- masters. And with regard to MarrioWs Case, Justice Willes said that the decision had been explained on a subsequent occasion (Beadell v. Eastern Counties) in the way put by the Chief Justice. Judgment for Company. — Tried in Court of Common Pleas, November 19, 1868. — From Neville and Mac- namard's RepoHs, vol. 1, j^^^O^ ^^• 32 O. The City of Dublin Steam Packet Company v. London and North Western Raihvay Company. — Action in respect to undue preference under the Eailway and Canal Act, 1854. Steamers were pro\dded and worked for the conveyance of mails and passengers between Holyhead and Kingstown by the Dublin Steamboat Company, under statutory powers and agreements obtained and made between that Company and the North Western Eailway Company. It was agreed that the oharge for conveyance of passenger traffic by such route (called the mail route) between Kingstown and London, &c., should be fixed as regards the through rates by the London and North Western Company. The London and North Western Company subsequently established a service of steamers for passengers between Holyhead and the North Wall, Dublin (called the North Wall route). The effect of the statutory agreement between the two Companies was to give the London and North Western Company a complete control over the fares of both routes, as if they were sole owners of both, and therefore the provisions of the Eailway and Canal Traffic Act, 1854 (which were made expressly applicable to both those lines of steamers) applied to both routes. The London and North Western Com- pany's service of steamers was almost on a level with the mail service in point of speed and accommodation, and its fares were much lower, the first and second class passengers, who were charged 60s. and 45s. respectively between Euston and Dublin by the mail route, being only charged 47s. 6d. and 36s. 6d. by 052 UNDUE PREFERENCE. the North Wall route, being a difference of 12s. 6d. and 8s. Cd. respectively. The services over the distance between Holyhead and Dublin were substantially the same, and (adding the rail- way from Kingsto\yn to Dublin) were nearly equal. The accom- modation by the North Wall route was practically as good as that by the mail, and the vessels of the two Companies were worked at about the same cost. The mail through fares were divided by mileage, and the London and North Western Company received for their land portion of the through service 46s. lOd. out of the first class fare and 35s. 3d. out of the second class, their North Wall fares (railway and steamer combined) being 47s. 6d. first class and 36s. 6d. second class. In both cases they carried the passengers the same distance by railway, but the passengers to and from North Wall travelled in addition by the Railway Comj^any's steamboat. Their boat fare was 8s. first or second class, and they received therefore in respect of tlie North Wall passengers 39s. 6d. first class and 28s. 6d. second for the railway journey from London to Holyhead, as against 46s. lOd. and 3os. 3d. for the same railway journey in respect of the mail route. Held — That the amounts by which the fares by the mail route were thus more than those by the North Wall route (whether in regard to the fares charged for the entire service to Dublin or the portions due to the land journey only) were excessive, and an undue prejudice to the traffic by the former route; and that the circumstances did[|not justify an excess of the total fares to Dublin by the mail route more than, at the outside, 10 per cent. An aj)plication by the Dublin Steamboat Company for through rates for passengers from Kingstown and London, via the Company's steamers and London and North Western trains, was refused on the ground that the Dublin Steam Packet Com- pany had agreed (under statutory powers) that the charges for the conveyance of passengers between London and Kingstown were to be fixed from time to time, as regards the through rates, by the Railway Company. Semhle — That a company or persons using or working steam vessels for the purpose of carrying on a communication between any towns or ports are UNDUE PREFERENCE. 553 entitled to apply for through rates under section 11 of the Eegulation of Railways Act, 1873. A railway company is not under any obligation to issue a through ticket, or any ticket not forming part of the through service. Upon complaint by the Dublin Steam Packet Company that the London and North Western Company had not complied with section 16 of the Regulation of Railways Act, 1868, which enacts {inter alia) that " where an aggregate sum is charged by the company for conveyance of a passenger by a steam vessel and on the railway, the ticket shall have the amount of toll charged for conveyance by the steam vessel distinguished from the amount charged for conveyance on the railway," it was admitted by the London and North Western Railway Company to be so ; but as the Dublin Steam Packet Comj)any did not show that such non-compliance had caused any damage to themselves, the Commissioners made no order. Judgment against the Railway Company. — Tried in Railway Commission GouH, August 3, 4, 5, 6, and 19, 1881. — From Solicitors^ Journal, vol. 26, ijage 262. Compulsory Use of the Railway Company's Printed Form of Consignment Note Containing Conditions of Carriage. Case No. Garlon v. B. ^- E. (18G1) 321 Case No. Baxendale v. D. cj- E. (18G2) ... 322 DIGEST. In Garton v. B. if E. (May,i86i) the Company refused to accept the Plaintiff's (a carrier) consignment notes, and insisted upon tilling up by their servants their usual 2^rinted form of consignment note, with the conditions of carriage attached, and required Plaintiff to sign same. It appeared one of the printed conditions on the notes had been held Ijad in law as (see Simons v. Great Western), " unjust and unreasonable." Chief Justice Cockburn, holding this condition " unjust and unreasonable," decided that Plaintiff could not be required to sign a note with such condition. 554 IMH'K rKKKKKKNOF. lu ./)(?.!•<•//(/. iV /■/. ^.lAiumrv. ISi'.'i^ \\\C Co\\\\rM\\ roquiiTil IMaintitVs to nsi> ami sii;n \hc\v \n'\u\cd form ot" oonsii;nuuMit nolo, uith "conditions" nttaohod. j\lr. Wall, tlu' ('onipanv's rartiuix ai;vnt, Avho also kopt a ivooiving-housr in fhr litv of Bristol, did not roquiro tho pnMio hrin^ini;' him goods, as tho Company's ngont. t(^ ns(> and sign such notos. ,lndgmont against tho ('omi>any. 321. (!ftrto)i \. Uristol and F.tyfrr lutihca}/ (\^ii))ur)n/. — Fi)'!i( Coini(,-\Os. iiS, ;iiuhhvors other tiinos. riaiulitV tiMi(l(l lo {\\c (\Mu])auv ;»t iHishil goods, (ogothor wit h t !u' iMi^por rh;ut;(\ ami a nolo in writ iiig t>f (lu> UUinos of stMuiiM- aiul i'ousi;Mnn\ ilrsi-ript ion, ami winglit. Tho t\>mi>any ri'lu.sod (o ri\iM\(- and rarr\ unloss I'lainI itV would sign (lu> (\Mn]>an\'s luintcil ioriu of iorwardiug uoto, tilKnl up by tho riMupanv's sor\aiits, and rofiMiiu;;' io t-tM-tain oouihtitMis indorsoii t luMt\>u [^\ \\c toiirt li ivMidil ion bciu;;' tMU> of si\t tuMi, and as follows \ : — '•The Hiistol :\\\d I'.xoicr KnilwMv j^ivo public notii'o — (^Jtli.l Tlint thov \\itl iii>( 1h' .MUswor.iMo for tho loss of or iljuunjjo lo nnv goods urisinjr from tiro, oi\ il I'ommoiion, UMupost, (If tho not of Cuvl ; nov for loss, detention, or ihuunj^o of w r.ippors, boxes or rotmuoil oniptios of luiv ilo>oii]ition ; nor for .-vny ijooils put iiUv> loluniod \\riippors, boxes, or omj^tios ; uor for ;inT gootls loft until oalloil fi>r. or to (>rilor, or loft or wnrohousnl for the oouvoniciu'o of tho pnriios to whom thov iiro oon.>.igi)ontainini; a ^J^riotv o< nrliolos liablo by bn'i\knjjc to damnjjc oiioh other ; nor for loMktijjo nrisim; from bail oasks or oooporngo ; nor for damnjrc to cftst-iron work, fiiriiitnro. or other goods of n slight oonstrnotion. Ami thcT give notice thnt no elnin> for iian>ape will be allow oil unless m.-ule within tliroe iliijs lifter ilclivery of the goods, nor foi loss unless ni.nlo « iihin three days of tho time that they should l>e dolUorod." Cliiol' .lustiiH' Cock burn lirld thai t he i ondil iitiM»tion,i>rdania<;t> ol" any |>ai"kaoi> insutliiiiMit t\ or inipropiM-ly l>ai.'kt>il, inarkod, diroi-tod, or dosnihod,'" was an unjust ai\(l iun-t>asonablt> i-ondit ion, hot h at ronnnon law and umliM- tht> Ivailway and ("anal TralVu- Aft, 17 v^- IS \'ii„ rap. :n . A similar comlition in tho oaso of ;Si))iiy)is v. (nr^tt Wcsfrni luilhcay ("owiHtiii/ (IS C.H., SO.-)) was h.'ld to ho had. Chiof .lustico .lorvis, (luring tho argunuMit in that oaso, said- " NVhat has tho UKDUK I'JlKI'KliKJfCE. '555 iri8uffioif;ncy of" fhc j)ack;ig<^ lo do witfi the detention of the goo'JH ?" 'J"})(^ Jiid^r- uIho }j<']«I Uiat "no claim for damage, will hit ulJowffl unless ;na'J<; witjiin l.hr(;e days after the delivery of tlio goods, nor for Ioks unless made within three days of the time that t}i<'y nliould be delivered," was unjust and unreason- able. The arbitrator a])pointcd by 1h(^ (JoiiH assessed the damages in this count at 40s. Hany here again imjjosed a conditiorj on wlii< h they hud no right to insist, and Plaintiff was entitled io Ihe verdict of the Court. (JIaim, £'M) 2s. 6d., alleged overcharges on ])ackages under oOO lbs. charged as "smalls," and £27 lis. Od., alleged over- charges on })ackages over .OOO lbs. also charged as " smalls." All the overcharges had ber-n j^aid under ])rotest. 'J'he Court, held— 'J'hat hy Will. IV., cap. .3G, the Bristol and Kxetr-r Jiailway (Company was inc;orj)ora1ed, ;aid 1 Ik^ Comj)any were fufijjowered to charg(» for the carriage of parcels. liy 8 ("t, 9 Vic, cap. 1 •O.'j, sec. 19, amending the* (') Will. IV., cap. 30, the C>>mj)any were authorised lo eharge at so much per ton per mile. This provision overrides the j>rovisions of Will. IV., cap. 30, so far as concern<*d )>arcels exceeding GOO Ir^s. in weight, but not as to jKircels below that weight. The Company obliged the Plaintiff to jtay more than tin; maximum amount allowed by 8 & 9 Vic, cap. 1. 0.1, sec. 19. Held — That the excess paid on all parcels exceeding 500 lbs. in weight may be recovered back. .Judgment for Plaintiff for the £'27 1 Is. Od. Chiim, £2 14h. 9d., for tin; reasonable cost of r-ollection and delivery of «:r'rtain jjarcels Plaintiff carted, and which cartage was inelud(*d in the rale, (y'hief .Justice (!ockburn said — "Can you distinguish this from lidxendale v. Great Western liaihjDay (5 Com. B., N.S., 330)? You charge to the full extent, for tlie f;arriag<; of the goods, and in addition to that ^56 UNDUE PREFERENCE. vou charge for collecting and delivery services, which the arbi- trator finds were not performed by you." Verdict for Plaintiff on this claim. Action for £20 10s., made up of two classes of items. (1) The rate for Manchester packs, Manchester to Bristol, was 30s. per ton. The Midland Kailway Company allowed to the Bristol and Exeter Company Is. 6d. per ton cartage. The Bristol and Exeter Company paid their carting agent, Mr. Wall, a higher sum per ton. The local rate, Bristol to Exeter, was 22s. 6d. per ton, delivered. Plaintiff contended that the Defendants, by cartage allowances from Midland Company at Bristol, were enabled to deliver packs in Exeter to consignees at 21s. 8d. per ton. Held — That Plaintiff was not entitled, in an action for money had and received, to recover from the Com- l)any the excess of the sums paid by him above those paid by other persons. (2) Owing to certain traffic going from Bristol to Bridge- water by water, the Company made a special rate with certain Bridgewater traders to carry their goods (other than tea or tobacco) at 6s. per ton, provided they sent all their goods by tlie rail and gave up the water carriage. The ordinary class rates charged Plaintiff during the same period (1856, 1857, 1858, and 1859) were— 1st, 6s. 8d. ; 2nd, 8s. 4d. ; 3rd, 12s. 6d.; 4th, 16s. 8d. Plaintiff claimed a rebate on these grounds. Held the same as in the previous case. Fourth claim, £38, for packages charged as " smalls." A verdict for £6 9s. 2d. was given in this case upon such con- signments as, being over 500 lbs., were controlled by the Company's Act 8 & 9 Vic, cap. 155, sec. 19, and should have been charged at the tonnage rate. Fifth claim, £6 12s. 2d., alleged overcharges. Plaintiff' contended that a person not a carrier delivering to the Com- pany several small ^mckages over 500 lbs. in the aggregate, and of the same description of goods, the Company charged them at the tonnage rate when from one sender and to one con- signee. Plaintiff delivered a number of small packages over 500 lbs. addressed to his agents (a single consignee) at different stations. He admitted such parcels were ultimately intended for different consignees, but the addresses were covered, or UNDUE PREFERENCE. 557 partially covered, by his printed address labels. The Company, however, charged the packages as " smalls," and refused to apply the tonnage rate. Chief Justice Cockburn held that " the case of Baxendale v. Eastern Counties Railivay Company (4 Com. B., N.S., 63) governs this case. The Court, in that case, said that where a number of separate packages are all addressed to the same person, they are easily accessible at a station, but if to a number of persons, extra trouble is involved. Here the Plaintiff brought to the Company to be carried divers packages of the same kind, at the same time. It is found by the arbitrator that these packages were all addressed to the Plaintiff, but were intended for different ultimate consignees, whose names and addresses were also to be found on the pack- ages, though usually concealed by the Plaintiff's address, which was pasted over them." Held — That the Company were justified in so charging. Sixth claim. This was a similar claim to No. 4, and Plain- tiff recovered £\ 15s. 5d. under same Act. Seventh claim, £3 18s. 3d., consisted of legitimate over- charges, which were not contested. Plaintiff made a general claim of £1G0 on the ground that the Company had not put up any boards to indicate the amount of their tolls. The Judge said — " It is very doubtful, indeed, whether they are bound to put vip boards at all in respect to the conveyance of parcels and packages by their own carriages ; but, at all events, we think that any payments which they received from the Plaintiff or others, on this head, cannot bo recovered on a count for money luid and received." — Tried in the CouH of Queen's Bench, Easter Term, May 3, 1861. — Best and Smith's Reports, vol. 1, page 112. 322. Baxendale v. Bristol and Exeter Railiuay Com- pany. — Action in respect to undue preference. Plaintiffs (Pickford & Co.) were required, before the Company would accept goods from them for carriage, to use the Company's printed consignment note forms, and sign the Com])any's con- ditions therewith attached. To get their goods forwarded Pickford & Co. were compelled to do this. Mr. Wall was 558 UNDUE PREFERENCE. manager of the railway (Bristol and Exeter), and ke was like- wise an independent carrier, having a carrier's office in High Street, Bristol, where he received goods for all the railways running out of Bristol. Plaintiffs' complaint was that persons taking goods to Wall's receiving-house to go over the Bristol and Exeter Eailway were not required to sign the said condi- tions, and consequently there was undue preference. Chief Justice Erie said — " The question is whether Wall was a carrier distinct from the Company, or really their agent for receiving and forwarding their traffic. The passage in Wall's affidavit in which he says — ' The Defendants (Bristol and Exeter Company) allow me to describe myself as agent, and my establishments, including the one in High Street, Bristol, as receiving-houses of the Defendants ' — reading that passage, it seems to me that Wall's office is, as to third persons, to all intents and purposes the office of the Company, and that the effect of the arrangement was to give Wall an advantage over Messrs. Baxendale as to the carriage of goods which the law does not warrant. On this ground the Judgment must be against the Company." — Tried in Court of Common PleaSy January 13, 1862. — F7vm ScoWs Common Bench Rejports, vol. U, page 187. Undue Preference in respect to Packed Parcels. Case Ko. 8utton \. Oreat We$tern (1868) 387 DIGEST. In Sutton V. Gr eat Westeim (1868-69) PlaintiiFwas a "packed parcel" carrier, and lie complained the Company charged his goods fifth class and 50 per cent, added, while they carried " packed parcels " from the London wholesale houses at the ordinary rate. Morley & Co., Copestake & Moore, Pawson & Co., and Morrison & Co. produced their books, and proved that each day they received fifty to one hundred small parcels (enclosures) from other City houses, which were enclosed in their packages to different towns, and the consignee of the package UNDUE PEEFERENCE. 559 distributed the smaller parcels packed among his own goods to his fellow shopkeepers in the same town. It was proved this practice had existed for forty years. The House of Lords, on appeal, held that there was undue preference. Lord Chelmsford said — " The Com- pany knew perfectly well it was the constant practice of the large houses to send 'enclosure' parcels, and if the Company liked they could give such houses notice that every package the contents of which was not declared would be treated as a packed parcel and charged accordingly." Judgment against Company. Eeceiving Goods to Forward same Xight Later from One Carrier (Company's own Agent) than from Another. Case No. Garton v. Greai Western (1859) 302 Garton v. Bristol Sf Exeter (1861) 321 Baxendale v, L. 4" S. W. (1862) 323 No. Palmer v. L. ^ S. W. (1866) ... 324 Palmer v, L. B. 4- S. C. (1866) ... 325 DIGEST. In Garton v. Great Western (June, i859) the complaint was that the Company refused to accept goods from Plaintiff at their Bristol station after 5.15 p.m., that being the closing time, whereas the Company received goods from their own carting agent, Wall, up to 7 and 8 p.m. Chief Justice Cockburn held that this was undue preference under the Act. In Garton v. Bristol and Exeter (May, i86i) Plaintiff complained that his carts were not allowed into the Company's Bristol station to deliver goods after 5.15 p.m., while the Company's carting agent. Wall, was allowed to bring goods in later. Chief Justice Cock- burn held this was undue preference under the Act. In Baxendale v. London and South Western (i862) the Company received goods at their Nine Elms station up to 6.30 p.m., and at their City receiving-houses at 6 p.m., and sometimes they could not gQi their own 560 UNDUE PREFERENCE. carts from the receiving-houses into Nine Elms Station until after 6.30 p.m. Plaintiff was not allowed to bring goods in after 6.30 p.m. Chief Justice Erie held that this was undue preference under the Act. In Palmer v. London and South Western (i866) the complaint was that Plaintiff's collecting carts were not allowed into Nine Elms Goods Station after 6.30 p.m., while the Company's collecting carts and those of Pickford & Co. were allowed in later. The Company pleaded that at their twenty-seven receiving-houses the goods were sorted, weighed, and invoiced, which could not be done by a stranger, and thus greater time was occupied. The Court were equally divided, and no rule was made. In Palmer v. London Brijildon and South Coast (i87i) the complaint was that Plaintiff's collecting carts were not allowed into Willow Walk Station to deliver goods to go by the railway after 6.30 p.m., Avhile the Company's own collecting carts were allowed in with goods as late as 7 p.m. and 7.30 p.m. Justice Keating held that this was undue preference under the Act. 323. Baxendale v. London and South Western Railway Company. — Act ion in respect of undue preference, inasmuch as the Company declined to receive goods from Plaintiff at Nine Elms )Station for conveyance after 6.30 p.m., whereas the Com- pany collect goods at their own receiving-houses at Blossom's Inn, Lawrence Lane, Cheapside, and the " Swan-wit h-two-Necks," Grresham Street, and cart them into their Nine Elms Station as late as 9 p.m., wliereby Plaintiff is prejudiced. The Company contended that they received goods at their receiving-houses up to 6 p.m., and at Nine Elms up to 6.30 p.m.; that at times they were unable to cart all their own goods from the receiving- houses to Nine Elms by 6.30 p.m. ; and that the goods had been accepted by them at or before 6 p.m. at the receiving-houses. Chief Justice Erie said the case was within the principle of Garton v. Bristol and Exeter Raihuay Company, and the Judgment must be against the Company, Avith costs. — Tried in UNDUE PREFERENCE. ^Ql Court of Common Pleas, June 17, 1862. — Common Bench RepaHs, vol. 12, page 758. 324. Palmer v. London and South Western Raikvay Company. — Action in respect of undue preference acting against Plaintiff, a carting agent. Plaintiff complained that the gates at the Nine Elms Groods Station were closed against his loaded carts at 6.30 p.m. every evening, while the Company's own vans and those of Messrs. Pickford & Co. were allowed in after that hour, and the goods forwarded same night. Thus the Company and Pickford & Co. received goods at their receiving- houses up to 7 p.m. to be sent on by rail same night, while he could not receive goods at his receiving-houses after 5.30 p.m., and that he thus stood at disadvantage before the public. Plaintiff applied to the Court for an injunction under the Eail- way and Canal Act, 1854 (17 & 18 Vic, cap. 31, sec. 2). The Company, by affidavits, contended that their general rule of closing the gates at 6.30 p.m. is subject to exception at the discretion of their superintendent, according to circumstances, such as goods for shipment on a ship about to sail, perishable goods, accidental delays on the road, and the like, and that Plaintiff had the benefit of this exception impartially with other customers ; that they have twenty-seven receiving-houses, and that in several houses the goods are sorted and weighed and invoiced, and made fit for immediate forwarding, which cannot be done by a stranger to the Company ; and that there is a reason for admitting their vans so loaded from those receiving- houses at a later hour, and forwarding goods same night. Chief Justice Erie said — " The cases of Baxendale v. London and South Western Railway and Carton v. Great Western Rail- way are contended to be in point in this case. I beg to say that the argument from authority seems to me to be without conclusive force in guiding the exercise of this jurisdiction, the (juestion of whether undue preference has been caused being a (question of fact depending upon the facts proved in each case. I am of opinion that the grounds for this extraordinary inter- ference {i.e., an injunction) must in each instance in their nature be almost singular, and can scarcely ever afford any guidance for deciding a subsequent application for an injunction. 36 562 UNDUE PREFERENCE. lu my opinion the Company have done their duty in the conduct of their business^ and ought not to be interfered with on the complaint now before us." The Judge then remarked that " Pickford & Co. having obtained an injunction, their vans were admitted at all hours, and the further development of this would be that the Company would be led not to forward same night any goods delivered after 6.30 p.m., to the injury of the public service. Such an injunction as that asked might be a source of private profit to Mr. Palmer, but he had no right to demand that the interests of the public or of the railway should be sacrificed for his private gain. For these reasons I think the injunction should not be granted." Justice Montague Smith concurred. Justice Willes and Justice Keating were of opinion " that the precedents which would entitle the applicant to Judgment bind us, and, moreover, that they are right." As the Court were equally divided, the rule dropped.— TWecZ in Court of Common Pleas, January 11 & 12, and May 30, 1866. — Frorti LoAV Journal Reports, vol. 35, page 289. 325 • Palmer v. London Brighton and South Coast Rail- way Company. — Action in respect of undue preference. Plain- tiff, a London carrier and carting agent, having receiving- houses in the City, was not allowed by the Company to take his goods into Willow Walk Station, Bermondsey, after 6.30 p.m., to be forwarded same night. On the other hand, the Company's own collecting carts were allowed in as late as 7 p.m., 7.30 p.m., and 8 p.m., bringing packages from the Company's o^wti City receiving-houses. The Company ^ileaded the rule of closing the station gates at 6.30 p.m. was equally applicable to their own vans and carts as to those of the Complainant and other carriers, and that any departure from the rule in their own favour was accidental and occasional only. (They did not plead the convenience of the public, as was pleaded in the case of Palmer v. London and South Western Company.) Justice Keating gave Judgment that Plaintiff was entitled to an injunction under the Railway and Canal Act (17 & 18 Vic, cap. 31).^ Tried in Court of Common Pleas, .January 21, 25, 28, aoid February 13, 1871.— From Laiu Jovriud Reports, vol. 40, page 133. undue preference. 563 Terminal Allowances in respect to Traffic to and from Traders' ows Sidings — Loading, Unloading, &c. Case I Case No. Ko. Thompson v. L. ^ K W. (1875) 326 Evershed v. L. ^ N. W. (1877) ... 328 Bell y. Mid., also L.^N. W. (187 o) 327 \ Howard v. Midland (1878) ... 329 DIGEST. In Tliompson v. London and North Western (1875) the Midland Railway Company have sidings into two brew^eries, and allow" 9d. per ton for loading ale. The London and North Western Company, having no sidings into these two breAveries, allow 9d. per ton and perform free cartage, equal to Is. per ton. Plaintiff (a brewer) is prejudiced by this Is. 9d. per ton. The Railway Commission granted an injunction against the Company to stop such allowance. In Bell V. Midland., also London and jSJ'orth Western (1875), Plaintiff complained the Companies allowed 9d. per ton to certain brewers at Burton-on-Trent, who had sidings into their breweries, for unloading deals. The Railway Commission held that 4^d. per ton Avas sufficient ; and if the allowance was not reduced to that sum, they would make an order to reduce Plaintiff's rate to Burton station 4^d., to adjust the undue preference. In Evershed v. London and North Western (1877) Plain- tiff (a Burton brewer) had no siding into his brewery like some other Burton brewers. He paid the Com- pany Is. per ton cartage to station. Three Burton brewers had sidings from the Midland Raihvay, and were allowed Is. per ton for cartage and 9d per ton loading or unloading. The London and North Western Company, who had no siding into these three firms' ))reweries, allowed them 9d. per ton and gave free cartage, equal to Is. per ton, to get a share of their traffic, l^iaintiff contended this Avas undue preference towards him. This was held, in the House of Lords, to be undue preference, and Lord Bra ni well snid — '' I 564 UNDUE PREFERENCE. do not care wlicther the Is. per ton is part of the toll or not; there is an inequality, which is what the Legis- lature intended to prevent." In Hoivard v. JficUand (i878) Plaintiff had a siding- connected with the Bedford Station, and the only terminal service performed by the Company was to put the waggons into and take them from the siding. The rates were purely mileage rates, but Plaintiff claimed an allowance off on the })lea that more ter- minal service was performed on other traffic at the same rates than upon his traffic. The Railway Com- mission held that the haulage done by the Company's shunting engine was a set-off to the trader not taking up any siding room of the Company while unloading the waggons. 326. Thompson and others v. London and NoHh Western Railway Company. — Action in respect of undue preference. The Midland Eailway Company at Burton have sidings into Messrs. Truman & Co.'s and Messrs. Cooper & Co.'s breweries, and consequently their rates are station to station, and an allowance of 9d. per ton is given as a drawback for the loading of their ale traffic. The London and North Western Company, who have no siding, with a view to get some of the traffic of these two firms, and to afford equal terms with the Midland Eailway, cart between the Burton railway station and these firms' breweries free. The Burton cartage is Is. per ton, so that, with the 9d. per ton, the London and North "Western Company give these two firms an advantage to the extent of Is. 9d. per ton on their ale traffic. This, the Plaintiff contends, is undue preference, and appeals to the Eailway Commission for an injunction to stop the London and North Western Company from making this allowance. The Commission grant an injunction, which is Judgment against the Company. — Tried in Raihvay Commis- sion CouH, March 10 and February 23 and 24, 1875. — Law Times RepoHsy vol. 33, page 32. 327. Bell V. The Midland and the London and North Western Raihvay Companies. — Action in respect of undue preference. Plaintiff, Bell, of the firm of Peeks & Sons, UNDUE PREFERENCE. o6o Burton-on-Trent, timber merchants, complained that the Com- pany make an allowance to the brewers of 4id. per ton for locomotive haulage, and 9d. per ton for unloading deals and staves. The Company have sidings into certain breweries, and the brewers have locomotives which haul the trucks from Euiion Station into the breweries, and thus save the Company performing unloading and delivery. The following Judgment of the Railway Commission was delivered : — " If 4id. per ton is allowed for simply unloading, it seems to us too much. The locomotive expenses of a goods train do not average Is. a mile with a full load, and could not amount to as much as 4|d. per ton upon branches not ex- ceeding one mile in length, even with such causes of increased cost as working in and out of sidings and drawing light loads over short distances. But it does not seem to us too much, nor yet too little, if it represents, in addition, the value to the Com- panies of being able to discharge their loaded trucks outside their station and in the goods yards of other persons ; and, so considered, this rebate is no 2:)rejudice to anyone, and is part of a traffic arrangement of general convenience and economy. Now, as to the 9d. per ton unloading. Complainant contends that staves and deals can be unloaded at 2d. per ton. We think the sum it would cost the Eailway Company to unload the deals and staves would be 4^d. per ton ; and we shall therefore make an order that if the Companies continue to allow 9d. per ton to the brewers, the rates at which staves and deals are carried for the Complainant must be reduced 4^- per ton ; and he shall be paid tlie costs of this application." — Tried in Court of Raihcay Commission, June 7 and 20, 1875. — From Laiv Times Reports, vol. 33, page 539. 328. Evershed v. London and Noiih Western Railway Company. — Action for £1,356 8s. 7d., rebate of Is. 9d. per ton cartage on ale at Burton during a period of six years. Plaintiff, a Burton l)rewer, having no railway siding into his brewery, had all his ale carted to the station by the Company at a charge of Is. per ton. Messrs. Truman, Hanbury, & Co., Messrs. Ind, Coope, & Co., and Messrs. Cooper & Co. have sidings connecting their breweries with the Midland Railway Company. The 566 UNDUE PREFERENCE. Midland Railway Company's waggons go into these breweries, and the brewers load and unload the railway waggons, and the Midland Company for this service allow Is. per ton cartage allowance and 9d. per ton porterage for loading. Defendants (London and North Western ComjDany), finding their traffic prejudiced by such allowance, arranged to cart gratuitously the traffic of these three before-named firms, and to allow them 9d. per ton porterage. During the same time Defendants charged Plaintiff for his ale Is. per ton cartage, and did not give him the 9d. per ton porterage drawback. Plaintiff contended that this treatment amounted to undue preference, and that the overpaid money was recoverable at common law under section 90 (the equality clause) of the Eailway Clauses Act, 1845 (8 Vic, cap. 20), and section 2 of the Eailway and Canal Act, 1854 (17 & 18 Vic, cap. 31); that a continuous protest against charges of this kind is unnecessary — Echvards v. Great Western Railway Company (11 C.B., 588). Justice Lush, in giving Judgment, said — "We think that a railway company cannot, for the sake of increasing their traffic, reduce their rates in favour of individual customers, unless, at all events, there is a sufficient consideration for such reduction which shall lessen the cost to the company of the conveyance of their traffic, or some other equivalent or other services are rendered to them by such individuals in relation to such traffic. We agree with the Judgment of the Eailway Commissioners, and the reasoning upon which it is founded, in the case of Thompson v. London and North Western Railway Company (2 Xev. & Mac, 115). That the action for money had and received, will lie, is settled by the highest authority — Great Western v. Sutton (4 House of Lords Reports, 226)." Judgment against Company, except for payments between September, 1874, and January, 1875, which were taken to be voluntary payments.-— Tried in the Court of Queen's Bench. The Company appealed against this Judgment to the Court of Appeal, when Lord Justice Bramwell, in giving Judgment, said — " I am of opinion that this decision ought to be affirmed, and that the case is within the equality clause of the Railway Clauses Act, 1845, because a different toll was charged to the Plaintiff from that charged to the other brewers. It is said UNDUE PREFERENCE. 567 that, if this cartage and loading and unloading is part of the Railway Company's business as carriers, the chai-ge for it is a toll ; and it is said that, if the charge is not a toll, the Company must be acting ultra vires. I think myself that the doctrine of ultra vires, as laid down and acted on in the East Anglian Railway Company v. Eastern Counties Company (21 L.J., 23 C.P.) and other cases, is founded on a mistake, and that one should read the private Act of a railway company as if it were a deed of settlement, and that the directors doing any- thing else be^^ond what they were authorised by the Act would be guilty of a breach of trust. As to the 9d., it is manifest that it is a deduction from the toll ; they give them 9d. As to the charge of Is., a portion of what is charged under the toll is to be attributed to cartage, and therefore the Company charge the other finns less for tolls than they charge the Plaintiff. This is enough of itself to decide the case, but my opinion is also in favour of the Plaintiff on the Traffic Act, 1854 (17 & 18 Vic, cap. 31, sec. 2). The Plaintiff has aright to complain, because an advantage of Is. 9d. per ton is given to the other firms which is denied to him. I think, therefore, that there is an undue advantage given to the favoured brewers, and there is an undue and unreasonable pre- judice and disadvantage to which the Plaintiff is subjected. If the case rests on the Eailway Clauses Act, the Plaintiff pays too much for tolls, and he can get it back as money received to his use ; and if it is looked upon as a tort, it will be the same figure. Lord Justice Brett and Lord Justice Cotton concuiTed. Judg- ment affirmed for Plaintiff, and against the Company. — Tried at the Court of Appeal, Westminster, Nov. 28 and 29, 1877. — From Law Times Reports, vol. 37, page 623. The Company appealed to the House of Lords, when the Lord Chancellor (Cairns) confirmed the Judgment of the Courts below. He said — " In my opinion, undoubtedly the Company is performing identically tlie same services for the Plaintiff in this action as for the two other firms of brewers whose names have been referred to. Now, as a matter of policy and ex- pediency, it may well be that they have good reasons for treating those other firms in the way they do ; but with those considera- tions the Plaintiff in this action has nothing whatever to do. 568 UNDUE PREFERENCE. liOrd Justice Brett said — "The Company may receive the goods at the edge of the railway, or they may receive elsewhere, but still they haye to receive the goods in all cases in which they carry. During the whole time while they have the goods in their possession for conveyance they are carriers, and they charge as such. Sometimes they do not receive the goods at the edge of the railway, but they receive them at receiving- houses, or, as in the case here, at the different places of business of their customers." Lord Blackburn concurred, and remarked " it had been pleaded that the word ' tolls,' in the interpretation clause, is confined to a charge authorised by the Act for carrying goods on the railway, and that the Is. which has been paid for the cartage outside is not a 'toll' within the meaning of the Act. I think it is quite clear that, when the charge from station to station and a shilling are both paid together by one person for the whole service performed by the Eailway Company, including the cartage, and to another person the same tolls are charged and a shilling's worth of cartage is thrown in gratis and not charged for, this latter person gets his goods carried upon the railway at a cheaper rate. I do not care whether the Is. is i»art of the toll or not ; there is an inequality, which is what the Legislature intended to prevent." — Tried in the House of Lords, Jidy 15,1878. — Laiv Times Reports, vol. 39, page 306; Lo.w Journal Reports, vol. 48, page 22. 329. Hovxird V. Midland Railway Company. — Action in respect to a claim for terminal allowance by a trader having a siding into his own yard. Messrs. J. & T. Howard, of Bed- ford, manufacturers of agricultural implements, having premises connected by private sidings with the Bedford station of the Company, loaded their own goods, and placed the waggons, duly loaded and labelled, in sidings belonging to the Eailway Company. The only work of a terminal station which the Eail- way Company had to perform before such waggons left their goods station was that of aiTanging them in proper train order. In the case of goods consigned to such trader the unloading took place on his own premises, and therefore the waggons had to be hauled across from the Eailway Company's goods station, UNDUE PREFERENCE. 569 and part of the haulage was done by the Company's shunting engine, one hour per day, representing a cost of 8s., being the average time the engine was kept at that work. They charged the firm the uniform mileage rate, and made no charge for any- thing beyond mileage. Upon complaint by the firm that the Eailway Company did not charge him a lesser rate than the other traders of the same place, in consideration of his using his own premises instead of the goods station of the Company, Held — That he was not entitled to any allowance in respect of his traffic which dispenses with part of what the Company undertook to do for uniform mileage rates for all traffic alike, and that the haulage done by the Company's shunting engine might fairly be regarded as a set-off to the trader not taking up any siding room of the Eailway Company while unloading the waggons. Judgment for Company. — Tried in the Court of Raihvay Commission, May 6, 7, 8, and June 1, 1878. — From the Solicitors^ Journal and Reporter, vol. 22, p«5^e 767. 570 CARRIERS' LIEN ON GOODS FOR A GENERAL BALANCE. GENERAL. Sweet v. Pi/m (1800) ... , PrenhjY. Midland (IS6G) Case No. lOi 721 MuUiner v. Florence (1878) Case No. 330 DIGEST. \n Siveei Y. Pym {UQO) a "fuller" (Pym) in Exeter had received cloth from Gard, London, to be " fulled." Pym shipped the cloth back to London, and, hearing Gard had become a bankrupt, Pym overtook the ship at Deal, and got the captain to sign a bill of lading- consigning the cloth to him (Pym) in London. Pym thus obtained possession of the cloth, and sold it for a general balance due him by Gard. Lord Kenyon said — " The right of lien has never been carried further than while the goods continue in the possession of the party claiming it. Here the goods were shipped by the order and on account of the l)ankrupt, and he was to pay the expense of the carriage to London. The custody was therefore changed by the delivery to the captain." Judgment for Sweet, assignee to Gard. Li Prenty v. Midland (1866) three pigs over the allowed number were loaded as half a waggon ; the Company claimed the undercharge, which being re- fused, the whole consignment of 44 pigs were detained. Baron Pigott held that the Company were not war- ranted in detaining the 44 pigs, and declined to express an opinion as to whether the Company might have had a lien upon the three pigs. In Mulliner v. Florence (1878) a swindler stopped at an inn, and owed £ 1 09. He left a pair of horses, waggonette, carriers' lien. o7l and harness behind hhn, which he had obtained on credit, and for which he had never paid. The inn- keeper sold the horses for £73, and kept the money. Plaintiff, who had sold the horses to the swindler, sued for the horses, waggonette, and harness. Lord Justice Bramwell, on appeal, held that Plaintiff could re- cover the £73, but not the waggonette and harness. " The very notion of a lien is that if the person who is entitled to the lien for his own benefit parts with the chattel over which he claims to exercise it, he is guilty of a tortious act. The lien is the right of the creditor to retain the goods until the debt is paid. It is quite clear the Defendant could not use the horses, yet it is suggested that he could sell them and confer a title upon another person." 330. Mulliner v. Florence. — Action in respect to lien. A swindler named Bennett stopped at an inn in Coventry until he owed the innkeeper £109 for lodgings, food, and entertain- ment. Bennett obtained from Plaintiff a pair of horses, waggonette, and harness, which came to the inn as part of the property of Bennett. Ultimately Bennett w^as convicted of fraud, and sentenced to penal servitude. Bennett bought the horses and waggonette from the Plaintiff upon the terms that, if they should not be paid for, they should be returned to him free of expenses. After Bennett's conviction, Plaintiff de- manded from the innkeeper the horses, waggonette, and harness, and tendered him a sum of £20 for the keep of the horses, but the innkeeper refused to give them up. The innkeeper sold the horses by auction for £73, but lie kept possession of the waggonette and harness. On the first trial, the Judge directed Judgment to be entered for Defendant, the innkeeper. On the appeal case Lord Justice Bramwell said — "The Defendant, who had only a lien on the horses, was not justified in selling them, and he has therefore been guilty of a conver- sion, and that enables the Plaintiff to maintain this action for the proceeds of the sale. The very notion of a lien is that if the person who is entitled to the lien for his own benefit parts o72 CAKIilERS' LIEN. -with tlie chattel over which he claims to exercise it, he is guilty of a tortious act. He must not dispose of the chattel so as to give someone else a right of possession as against himself. The lien is the right of the creditor to retain the goods until the debt is paid. It is quite clear that the Defendant could not use the horses, yet it is suggested that he can sell them and confer a title upon another person." Thus it was held that the innkeeper had a lien on the carriage and harness, and that the Plaintiff could not recover as to them, but he was entitled to recover the sum of £73, the amount that was realised by the sale of the horses by auction. — Tried in the Court of Queen's Bench Division, January 28, 1878. — From Law Reports^ Queen^s Bench Division, vol. 3, jiage 484. Cage Case No. ) ... 331 Caledonian v. GalU (1873... ... 333 0) ... 332 Highland v. Jackson (187G) ... 334 Eailway Companies have not a General Lien under the Eailway Clauses Act for an Unpaid General Balance, although they can have such llen by special Contract. North v.L. 4- S. W. (I8G3) Wallis V. L. 4- S. W. (1870) DIGEST. In North V. London and South Western (i863) the Com- pany seized some coal in liquidation of a general balance. Chief Justice Erie held that the seizure had heen wrongly made in the name of the Company instead of the person named in the notice of tolls, and prior to the seizure no proper demand and refusal of payment had taken place, as required by the Act under which the seizure Avas made. In Wallis V. London and South Western (January, i870) the Company detained goods for a general balance, claiming to do so under 97th section of Railway Clauses, 8 c% 9 Vic, cap. 20. Chief Baron Kelly held that " tolls " referred to in this section did not mean carriage, and the Company could not exercise a general lien for carriage upon the authority of that carriers' lien. 573 section. In a subsequent trial, before Cliief Justice Cockburn, at the Kingston Assizes, on another issue, the Company succeeded on the plea of their general conditions notice, the Chief Justice saying — " If there was no dissent on Plaintiff's part, the previous usage and assent implied that the Company would be entitled to retain the goods on such lien." In Caledonian Railway v. Guild (1873) the Company detained seven large oil tanks that had been fixed upon railway waggons for a shale company's traffic. The shale company were sequestrated,* an cl Guild was the trustee, and resisted the Railway claim to the tanks for a general balance. The Lord Ordinary held that the Company had a full lien under the 90th section of the Clauses Act (Scotland), and disagreed with the de- cision in Wallis v. London and South Western in the restriction of the word "tolls." In Highland Bailway v. Jackson (i876) the Company detained goods for a general balance, claiming authority under 90th section of Railway Clauses Act to detain for "tolls." The Lord President of the Court of Session, following the case of Wallis v. London and South Westeym, held the Company had no power under that section to detain goods for the carriage, such carriage not Ijeing " tolls" witliin the meaning of the section. 331 . ^orth V. London and South Western Railway Com- pany. — Action for £299 2s. Id., amount realised by the sale of a quantity of coal seized and sold by the Company in li(|uida- tion of a ledger account of £494 Ts. 7(1. due them, and for which Plaintiff had given a promissory note. The note was due on August G, 1859, and was drawn on June 3, 1859. Plaintiff was the assignee of A. & C. Prior, who were adjudicated bankrupts 24th August, 1859. The Company claimed the power to seize and sell under the 4 & 5 Will. IV., cap. Ixxxviii., sec. 166, their own Act. Chief Justice Erie held that the assignee in bankruptcy of A. & C. Prior was entitled to recover the value of the coal seized, as the seizure was not authorised by the 574 CARRIERS LIEN. statute, inasmuch as it was made by the Company, and not by the person named in the notice of tolls as the person to whom they were to be paid, and as, notwithstanding the presentment and dishonour of the notice, there had not been prior to the seizure any such demand and refusal of payment as the Act required. Verdict against the Company. — Tried in the Court of Common Pleas, April 22, 18G3. — From Law Journal Reports, vol. S2, page 156. (In the present state of the law it is wise to grant only monthly accounts on a special agreement containing all the requisite power as to seizures and sale of good-s.) 332. WalUs V. London and South Western Railway Company. — Action for non-delivery of goods held as a lien under 97th section of Eailway Clauses Act, 1845 (8 and 9 Vic, cap. 20), carried London to Jersey. Plaintiff owed the Company for previous goods, tolls £1, and carriage £1, which he refused, to pay, and hence the detention of the goods. Chief Baron Kelly held that " it is quite clear, on looking to the terms of the section, that it does not aj)ply to the price for the carriage of goods, but it only applies to the case of goods which have been conveyed in a carriage or carriages of the owner upon the Defendants' railway, where all the Company are entitled to is to be paid for the use of the railway for that purpose. This is clear from the 95th and 96th sections, providing that tolls are only payable where a board is exhibited and mile-stones set up. No doubt the word ' toll,' especially under the interpretation clause, may have a more extensive signification, but the question is its meaning in the 97th section. It is clear that the section on which the plea is founded does not apply to the facts stated in this plea. The plea forms no defence to the action, and Plaintiff' is entitled to our Judgment." Baron Martin agreed. Baron Channell agreed in the Judgment, but said — " If a carrier conveys goods under a paHic%dar notice, that notice and the axcepta/nce of it may constitute a special contract, which vnll give him a general lien. The plea of the Company, so far as it depends upon the statute, is to set up a kind of statutory general lien, that is, not a lien in respect of particular goods, but a lien more extensive, namely, in respect of all CAKRIERS' LIEN. 575 goods entrusted to the Defendants." Baron Pigott also agreed that the case was not within the statute. Verdict for Plaintiflf. — Tried in Exchequer Courts January 17, 1870. — 39 Law Journal (Neiu Series), Exchequer, page 57. 3 322 . Wallis V. London and South Western Railway Go^n- pany. — The same Plaintiff in last case brought an action against the same Company, which was tried before Chief Justice Cockburn, Aj)ril 3, at Kingston, Surrey. Plaintiff now sued for the value of goods, as having been detained until they were of no use to him, and as to two of the j)arcels he said he had tendered the charges thereon. His profit on the loss of sale was about £5. One of the Company's carmen, who delivered one parcel, swore he had received instructions from the Company's agent that if the Plaintiff offered to pay the charges thereon it was to be left ; but that the Plaintiff, on looking at the bill which con- tained the charges on the previous consignments, refused to receive it, and said " Take it back." Witness admitted he did not tell Plaintiff this. The Plaintiff, it seemed, had had a ledger account with the Company, which seems to have been stopped (the report does not state why), and payment was required on delivery of each lot. Probably the stoppage of the credit led to the dispute. The Plaintiff was a toy-seller in Jersey, and the parcels contained goods usually sold by toy-sellers. The Company contended they had a general lien upon goods, according to their notices at back of their consignment and delivery notes, viz. — "The goods are delivered on the terms that tliey arc to be considered subject to a lien, not only for any sums due thereon, but also for all previous unsatisfied charges due to the Company from the same party." The Judge said it was a most discreditable case to be brought to the Assizes. The whole sum in dispute was about £5, and there was no necessity to refuse payment and sue for recovery of the value of the goods. It would be impossible to recover the full value. The Plaintiff should have paid the charges demanded under protest, and then sued to recover the excess. Otherwise the most monstrous consequences would follow if, on account of some excess of a few shillings, largo amounts could be recovered for the full value of the goods. The 076 carriers' lien. question was as to a general lien, which the Company as carriers would not have at common law, but which they claimed on the ground of special contract printed on their tickets. No doubt there must be some assent to these terms by Plaintiff, but that assent need not be express, and might be implied from conduct. Could the Jury doubt that the Plaintiff had, by the course of deahng on these tickets, assented to the terms they contained ? So long as the accounts were paid no occasion could arise (to exercise the lien), and it was only in such a case the stipulation for a general lien applied. When it arose the lien was at once asserted. It did not aj)pear that when the goods in question were tendered to him with the bill containing the previous charges, he tendered the charges on the particular goods brought to him ; on the contrary, it appeared that he repudiated and refused to receive them. If there was no dissent on Plaintiff's part, the previous usage and assent applied, and the Company would be entitled to retain the goods on such a lien. The Jury gave a verdict for the Company. — Tried at the Kingston Assizes, before Chief Justice Cockbnrn, April 3, 1870. — The London Times, April 4, 1870. 333. Caledonian Raikvay Company v. Wylie Guild. — Action for £703 14s. 8d., amount of a ledger account due to the Eailway Company from the East Hermand Shale Company for carriage. The Shale Company were sequestrated, and Defendant (Wylie Gruild) appointed trustee. The Shale Com- pany had seven large tanks that had been fixed on railway waggons for carriage of oil. These tanks, valued at £280, or £40 each, the Eailway Company detained for the carriage due. The Railway Company's debt consisted of — (1) Tolls for the use of the tank waggons, station to station ; (2) charges for the supply of engine power and other expenses in conveying the waggons along the railway; (3) rates for the carriage of other goods along the railway, including therein tolls for the use of the railway. The amount of tolls for the mere use of the railway far exceeded £280. The Railway Company based their lien upon the tanks upon the 90th section. Railway Clauses Consolidation Act of Scotland, which is the same as the 97th section of the English Act. The principal jilea of the CAERIERS' LIEX. 577 Defendant was that the accounts claimed by the Railway Company being for charges incm-red to them as common carriers, or at anjrrate not being for tolls, the statutory rights claimed by them are inapplicable. The Judge (Lord Ordinary) held that the Company had a full lien under the 90th section of the Act quoted. He dis- agreed with the decision of Wallis v. London and South Western Railway, where the word " tolls " was restricted to a charge for carriages or goods using the line, and did not include the carrier's hire for carriage. He gave a verdict for the Railway Company, decreeing that they might retain the seven tanks for the value (£280), and ordering that they should rank as ordi- nary creditors for the difference due from the estate. Seeing that a sum equal to the value of the tanks could have been proved to have been due for " tolls " in the restricted sense of the word, the Railway Company in this case would probably have recovered, as the decision in the case of Wallis v. London and South Western would not have been at variance, but rather in support. — Tried before the Lord Ordinary, Edinburgh, November 26, 1873.— i^rom Scottish Reporter of 1873. 33A-.'—The Highland Railway Company v. Jackson (Nicol & Co.'s Trustee). — Action on the part of the Highland Railway Company to detain and sell three bags wool, one truss of tweed cloth, and three bundles of em2:)ty sheets, for a ledger account debt of £26 17s. Id. Nicol & Co., manufacturers, were sequestrated, and their trustee contested the seizure of the goods on the Company's premises in liquida- tion of the ledger account debt. The Sheriff Substitute sanctioned the sale of the goods under the 90th section of the Railway Clauses Consolidation Act (Scotland). On appeal to the Sheriff, he altered the Judgment. The Railway Company then appealed to the First Division of the Court of Session, when the Lord President gave Judgment, saying — "The inter- pretation clause of the Railway Clauses Act provides that ' toll ' is to be held to include 'any rate or charge or other pay- ment payable under the special Act for any passenger, animal, carriage, goods or merchandise, articles, matters or things con- veyed on the railway.' This is very comprehensive, and would, i_ 37 578 carriers' lien. in my opinion, embrace both tolls in the proper sense of the word and also charges for carriage. In section 79 the meaning of the word * tolls ' is really charges for the carriage of passengers and goods ; while in section 80 it is quite clear that it is used in the other sense, and means tolls proper only — that is, tolls for the use of the railway by the carriages of other people. In sections 83 and 84 the word includes both tolls proper and charges for carriage. It is clear that section 88 is confined to tolls in the proper sense of the word for the use of the railway by carriages. I do not think there can be any doubt that in the 89th section the word is used in the same sense as in the 88th section, because a payment for the carriage of goods is not a kind of thing that is to be ' paid to such persons and at such places upon or near the railway as the Company may appoint.' The carriage of goods is paid upon their delivery. The remedy given in the 90th section is a very intelligible and suitable remedy for an attempted evasion of the tolls. If persons pass- ing along a road contrive to get off the road before the toll is paid, and so evade the toll collector, the necessity for some summary remedy at once suggests itself. They ought to have paid the toll at the proper place appointed for its payment, and to the person placed there in charge to receive it ; and we are reminded, not inappropriately, that there are remedies of the same kind for evading tolls on turnpike roads. It seems to me that the whole language of the 90th section is in harmony with that idea, and that none of the words used in that section can be applied or naturally applied to the lien for the carriage of goods by the Eailway Company acting as common carriers. The construction the Eailway Company put upon this 90th section is that ' tolls ' here means not only tolls for the use of the railway by the carriages of other persons, but also charges for carriage, the result of which is that the section, according to their construction, is an extension of the common law lien of common carriers to goods other than those for which the charges are due — in fact, a lien for a general balance of account. There is, I think, no direct authority upon this question in Scot- land ; but there is a case, Wallis v. London and South Western, decided in the Court of Exchequer in England, which is a direct carriers' lien. 579 authoiity in support of the view I have just expressed. The 97th section of the English Act corresponds to 90th section of the Scotch Act, and in the case of Wallis there was a unani- mous Judgment affirming the more limited constmction of the word ' tolls ' in the 90th section, which I think is the due construction." Lords Deas, Ardmillan, and Mure concurred. Verdict accordingly against the Company. — Tried in the First Division of the Court of Session, Scotland, June 16, 1876. — From Scottish Law Reporter of June 14, 1876. During the Period of Exercising the Lien by Detaining the Goods, no Charge can be IVIade for the Keeping, i.e., Warehouse Eent. Case No. Britinh Empire Shipping Company v. Sondes (1858) 335 DIGEST. In British Empire Shipping Comp)anij v. Somes (i858) the Defendants repaired a ship belonging to Plaintiffs, which was placed in a graving dock for the purj^ose. When the ship was repaired, Plaintiffs did not pay the cost and remove her, and liberate the graving dock. Defendants detained the ship as a lien for the repairs, and charged £21 per day for the occupation of the dock. Held, the Exchequer Chamber affirming the Judgment of the Queen's Bench — That the shipwrights had no lien for the use of the dock during the detention. 335. British Empire Shipping Company v. Somes.— ^ Action in respect to lien. Shipwrights contracted with the owners of a ship to do repairs on the ship in the shipwrights' graving dock. In the contract a provision was made that a lump sum should be paid for the use of the dock, the other charges being on a quantum meruit. The ship was repaired in the dock, and the owners were not prepared to pay the price. The shipwrights gave notice that they would detain the ship and claim £21 a day for the use of the dock during the deten- 580 cyaRiERs' lien. tion. The shipowners paid, under protest, the whole amount claimed, and brought this action to recover back the dock rent, £567. Held, the Exchequer Chamber affirming the Judgment of the Queen's Bench — That the shipwrights had no lien for the use of the dock during the detention. Chief Justice Lord Campbell said — " The right of detaining goods on which there is a lien is a remedy for the party aggrieved which has to be enforced by his own act ; and where such a remedy is permitted, the common law does not seem generally to give him the costs of enforcing it." This case is quoted as deciding that the carrier is not entitled to make any charge for warehousing of goods during such time as he may be retaining them as a lien for his carriage. — Tried in the Court of Exchequer Chamber, May 26, 1858. — From Ellis, Blackburn, and Ellis's Reports, page 353. Caerier must Make a Formal Demand for Carriage or Tolls before being legally warranted in selling groods to Satisfy the Lien. Case No. Fieldv.N.A.^II.(\.8oS) ... 365 North y.L.,^S.W. (18GB) ... 331 Caeo No. Pendreigh v. N. B. (1870) 336 DIGEST. In Field v. Newport A. ^ H. (i858) the Company detained and sold PlaintiiF's waggons for an account unpaid. The account was made up of tolls and back carriage on empty waggons. The dispute arose from the Company increasing the rates, which Plaintiff would not pay. Baron Bramwell held that under the Railway Clauses Act the Company were not empowered to distrain except upon demand for payment and refusal ; that a demand for a certain sum made up of two sums claimed on two distinct grounds is not a demand of either. It appeared the demand for the tolls on the full waggons should have been made as a distinct demand, separate from the demand for the back carriage on the empty waggons. carriers' lien. 581 In Nortli V. London and South Western (1863) the Company seized a quantity of coal, and sold it for a general balance under 4 & 5 Will. IV., cap. 88, sec. 166. Chief Justice Erie held Plaintiff was entitled to recover, as the seizure of the coal was not authorised by the statute, inasmuch as it was made by the Com- pany, and not by the person named in the notice of tolls as the person to whom they were to be paid. In Pendreigh v. North British (isro) the Company had sold a quantity of grain for a general balance under the Railway Clauses Act (before the decision of Wallis V. London and South Western). PlaintiiF had become bankrupt, and his trustee consented to the sale, and the proceeds to be lodged in Court. Plaintiff now contended no demand for jiayment and refusal had taken place, as required by the Act. On appeal, the Lord President held that, as the trustee had consented to the sale, " it is not now possible for him to say that the sale was unwarrantable and illegal." 336. J- <£■ G. Pendreigh's Trustee v. North British Baihvay Company. — Action by trustee of a firm who had sto^Dped payment for a quantity of grain detained and sold by the Company for a debt of £852. When the firm of J. & G. Pendreigh, com merchants and brewers, stopped payment, the Comjmny stopped certain grain in their possession, and obtained a warrant from the Sheriff, under 90th section of Raihvay Clauses Consolidation Act (Scotland), 1845, to sell same in payment of their account, to which the trustee consented, the money, £397 7s. lOd., to be lodged in Court. The trustee pleaded that the Company were not entitled to the proceeds of the sale, and that such should form part of the assets, as no demand had been made, in the sense of the rail- way statute, for payment of the Company's account; and that the petition presented to the Sheriff Substitute was incomj^e- tent and unnecessary. The Company contended that a formal demand had been made for payment, but, assuming such had not been done, the petition itself was a sufficient demand under the Act above referred to. The Act runs — " If on demand any 382 CARIUERS' LIEN. person fail to pay tolls due in respect of carriage." The Sheriff held that the service of said petition on the trustee foresaid was sufficient demand for payment of tolls due in respect of said goods under section 90 of the Eailway Clauses Act. Finds, therefore, that the petition and sale following thereon are valid procedure under said enactment for recovery of the tolls claimed by the petitioners for carriage aforesaid. The trustee appealed to the Sheriff, who finds that no de- mand within the meaning of the special statute had been made, and orders the clerk to pay the trustee £397 7s. lOd., proceeds of sale. " In the absence of a sufficient demand for payment, were the Company entitled, at the date of the application to Sheriff Substitute, to get the warrant to sell — in other words, were they then entitled to sell if they had not asked a warrant ? The warrant was granted, of consent and under reservation of all rights and pleas of parties. Before the warrant was applied for, and as the condition of getting it, a demand for payment was necessary." There were two firms of J. & Gr. Pendreigh — one firm grain merchants, and the other brewers — having different places of business, and the trustee complained that it was not specified by the Company what proportion of the money claimed pertained to each firm. On the other hand, the report does not specify whether the grain sold belonged to the one or the other firm. The Company appealed to the Court of Session against the Sheriffs verdict. The Lord President said the special statute introduced two novelties at variance with common law — (1) A right of retention for charges on other goods ; (2) a power to sell the goods so retained if payment is not made after demand. " It is not pro- vided hovj the demand shall be made. If the Company sold without a judicial proceeding, and made no demand, the sale would be null, and the proceeds belong to the debtor. The Company presented a petition to the Sheriff, and asked service on the Respondent as trustee on both estates, and it was con- tended that was equivalent to a demand. It might be said if the service was not a demand within the statute it might reasonably be held that the parties had dealt with it before the Court as such, and could not now resile and say it was a bad demand. That defence should have been made before the carriers' lien. 583 Sheriflf. If the plea that no demand had been then stated, and if the trustee consented to the sale, it is not now possible for him to say that the sale was unwarrantable and illegal. It must be held that the trustee had waived his objection." Lords Ardmillan and Kinloch concurred. Lord Deas dissented, and considered the Company liad no right to bring the trustee into (]ourt on the footing that service of the petition was a sufficient demand for payment. He was also of opinion that the plea of " no proper demand " had not been waived, but was reserved. Verdict for Company. — Tried in CouH of Session, Edinburgh, Jidy 15, 1870. — Fro'in English Clearing House Reports, No. 231, 2Jage 291. IX RESPECT TO THE CaRRIER's LiEN FOR GENERAL BALANCE BEING Superseded by Sender's Eight of Stoppage in Transitu. Case No. Oppenheim v. Russell (1802") 337 DIGEST. In Oppenheim v. Russell (i802) the consignee of the goods ftiiled before the goods were delivered, and the carrier held the goods for a general balance due by consignee in the face of the sender issuing a notice of stoppage in transitu. Chief Justice Lord Alvanley held that the carrier could not, for a general balance, hold the goods against the sender's stoppage in transitu. 337. — Oppenheim v. Russell. — Action against a carrier for detaining goods for a general balance of £4 7s. due by con- signee. The consignee, before delivery of the goods, which were earned from London to Plymouth, failed, and sender gave notice to the carrier of stoppage in transitu. The carrier de- clined to deliver up the goods to the sender, but held them for the £4 7s. general balance and £1 7s. 2d. carriage on the particular goods in question. The carrier in 1801 gave public notice, by circulating hand-bills and advertisements in London Gazette and other newsj)apers, that all goods which should be delivered for the purpose of being carried would be considered as general liens, and subject not only to the money due for the 584 carriers' lien. carriage of such particular goods, but also to the general balance due from the respective owners to the carrier. One of these hand-bills had been delivered to consignees (Negretti & Co.) at their shop in February last. The carrier quoted the cases of Asphmll V. Pichford (3 Bosanquet and Puller, 44) and Naylor V. Mangles (1 Esp., 109.) Chief Justice Lord Alvanley said — " I confess I thought the proposition a monstrous one when first started, and I still think it impossible to maintain that an agreement between the con- signees of goods and the carriers upon the Western Eoad can put an end to the right of stopping in transitu vested in the senders of goods before that agreement existed. It was admitted that if the consignee had made an assignment of the goods, his assignee could not have defeated the rights of the senders. Then, if he could not do it by assignment, how can he by any agreement with the carrier, for the carrier comes in under the consignee ? I am of opinion that the evidence offered was not admissible for the purpose for which it was ofifered." Judgment r.gainst carrier. — Tried in Court of Common Pleas, February 10, 1802. — From Bosanquet and Puller's Reports, vol. 3, page 42. Railway Companies' Lien on Goods for a General Balance by virtue of notice or usage. Case No. Wall: s y.Lcndon and South Western (IS70) ... 332 DIGEST. In WalUs V. London and South Western (April, isio), after the trial in the Court of Exchequer, a second trial took place before Chief Justice Cockburn, at the Kingston Assizes, probably on a new transaction. The Company there claimed their right of lien on goods for a general Ijalance by virtue of their public notices at back of their consignment and delivery notes. Chief Justice Cockburn said — " If there was no dissent on Plaintiff's part, the previous usage and assent implied the Company would be entitled to retain the goods on .such lien." CAEEIEES' LIEN. Case No. Case No. 263 Crawshay v. Homfray (1820) .. . 388 2G4 HoUerness v. Collinson (1827) .. . 339 ... 110 Leuchhart v. Cooper (1836) . 340 Warehousemen's and Wharfingers' Lien on Goods for a General Balance. Naylor v. Mangles (1794). Spears v. Hartley (1799) . Richardson v. Goss (1802) DIGEST. In Naylor v. Mangles (1794) Plaintiff bought sugar, stored in Defendant's warehouse, from one Boyne. Xow Boyne owed Defendant an old balance of account, and Defendant refused to deliver the sugar. Boyne paid the demand, and sued to recover same. Lord Kenyon held that by custom Avarehousemen had a lien for a general balance. Judgment for warehouseman. In Spears v. Hartley (1799) Defendant detained a log of mahogany (warehoused with him) for a general balance owing and unpaid for nine years. Lord Eldon held there was no statute of limitations in respect to a lien, and that the warehouseman may enforce payment by the lien which the law has given him for his general balance. In Richardson v. Goss (I802) three hogsheads of hams came from Newcastle to London, and were lodged in Defendant's warehouse, being consigned to Wilson. Now Wilson became bankrupt, and wrote sender (Richardson) he would not take the hams, and thus rescinded the purchase. Goss had no advice of this, and, having an old balance due from Wilson, detained the hams. The Court held the contract of purchase had been rescinded, and Goss could not hold the hams from Richardson (sender), although he might have done so against Wilson by the custom of a warehouse- man's lien for an old balance. In Craivshay v. Homfray (I820) Tottie & Co. lodged a quantity of iron at Defendant's wharf, and the next day sold it to Crawshay, and Crawshay re- moved part, leaving 90 tons on hanfl. This was in 586 CARKIERS' LIEN. October, and the usage between Tottie and Homfray was that warehouse charges Avere paid at Christmas. In ^larch Tottie became bankrupt, owing Homfray ^126, and Homfray detained the iron. Chief Justice Bayley hekl in favour of Phiintiff and against ware- houseman. In Iloklerness v. Collinson (1827) Foxton, whose assignee was suing, had, before his bankruptcy, de- posited goods with Collinson, a wharfinger, and Collinson hekl the goods for a general balance due. This was at Hull. Justice Ba3dey held that the ware- houseman's lien depended upon the usage of the particular place, and as the wharfinger had not estab- lished the usage at Hull, Judgment must be given for the Plaintiff. In Leuckhart v. Cooper (1836) Plaintiff, by his agent Heilbron, had w^arehoused wool with Defendant. Heilbron owed Defendant a large sum as a general balance, and Defendant detained eleven bales of the w^ool. Chief Justice Tindal held that Heilbron being- only a factor, and not the real owner of the wool, the warehouseman had no lien upon it. Judgment for Plaintiff. 338. Crawshay v. Homfray.— Action in respect to ware- houseman's lien. On the 14th October a quantity of iron was landed at Defendant's (Homfray's) wharf. The next day Tottie & Co. sold the iron to Plaintiff (Crawshay), and part of the iron was removed, leaving 90 tons on hand. It was the usage between Tottie & Co. and Homfray that the charges on goods should be paid at Christmas, so that in October, when Plaintiff purchased the iron, there were no charges due upon it. In March Tottie & Co. became bankrupt, owing Homfray about £126, and Homfray detained the 90 tons of iron for his lien for wharfage, &c. Chief Justice Bayley, on appeal, said — " According to the usage of trade, it appears that in this case a specific time is given to the merchant importer for the payment of these dues. At the time of sale the Plaintiffs had clearly a right to the delivery without any lien being claimed by the CAKRIERS' LIEN. 587 Defendants. In consequence of this, on their application a great part of the iron is delivered. How, then, can the non- delivery of the remainder till after the debt due from Tottie & Co. has become payable make any difference ? As it is clear that at the time of the sale the Defendants had no lien, I am of opinion that the subsequent non-delivery did not give any new right of lien to them." Judgment against the wharfinger. — Tried in the Court of King's Bench, November 9, 1820. — From Barneivall and Alder son's Reports, vol. 4, page 50. 339. Holderness v. ColUnson. — Action for possession of goods retained for balance of account. Defendant (Collinson) is a wharfinger at Hull, owning a wharf and warehouse. Fox- ton, whose assignees were suing, had before his bankruptcy deposited 17^ tons flax and 20 bales mats in Collinson's ware- liouse. At the time of the bankruptcy only 9 tons flax and the mats remained. The charges on the entire lot for wharfage and labourage (viz., landing, weighing, and delivery) was £41 10s. 3d. The assignees tendered this sum, but the wharfinger refused it, requiring a further amount of £31 3s. lid. due on previous goods that had been removed. Justice Bayley said — " The onus of making out a right of general lien lies upon the wharfinger. There may be an usage in one place varying from that which prevails in another. Where the usage is general, and prevails to such an extent that a party contracting with a wharfinger must be supposed cogni- sant of it, then he will be bound by the terms of that usage. But then it should be generally known to prevail at that place. If there be any question as to the usage, the wharfinger should })rotect himself by imposing special terms, and he should give notice to his employer of the extent to whicli he claims a lien. Tf he neglects to do so, he cannot insist upon a right of general lien for anything beyond the mere wharfage. An attempt has been made to draw a distinction between the claim for labourage and that for warehouse rent, but the right to either arises out of an express or implied contract, and the case states that the claim to both these items is a point in disimte at Hull. In the face of such a statement it is impossible to infer that the bankrupt landed his goods at the Defendant's wharf upon the terms of giving a general lien in respect of those demands and waiving 588 CARRIEKS' LIEN. the dispute. ISIany of the instances of acquiescence have pro- ceeded upon the smalhiess of the demand and a desire to avoid litigation or to have immediate possession of the goods, and this greatly diminishes the effect of them. For these reasons I tliink that the Plaintiffs are entitled to recover." Judgment against wharfinger. — Tried in Court of King's Bench, Trinity Term, 1827. — From Barneiuall and CressiveWs Reports, vol. 7, page 212. 34-0, Leuckhart v. Coopjer. — Action in respect to carrier's lien. The Defendant (Cooper) was a warehouse keeper in London, and had received into his warehouse 200 bales of wool to the order of Edward Heilbron. Upon this wool Cooper, in respect to advances, entering, landing, and housing, had paid £970. All the wool had been delivered except eleven bales, which Cooper detained as a lien for the further sum of £1,030 due to him by Edward Heilbron as a general balance of account. It appeared the wool really belonged to Plaintiff, a foreign merchant, and that Heilbron was only his factor to sell the wool in London. Chief Justice Tindal said, on the appeal case — " The ques- tion is, whether the custom of public warehouse keepers in London having a general lien is a custom which can be supported in law. The custom set up, if supportable, would make the goods of a foreign merchant, consigned to a London factor for sale, and by him put into the warehouse of the warehouse keeper for safe custody, liable to a private debt of the factor for expenses incurred in respect of other goods of third persons which had been in his hands at former times for charges contracted upon such goods during any antecedent period of time, and that to an unlimited extent. It appears to us that such a custom is unreasonable and unjust, and therefore bad in law. No autliority has been cited in support of this custom, and, as far as any analogy can be drawn from decided cases, it is against its validity. The case of Oppenhehu V. Russell established the principle that, although a common earner may have acquired, by usage or special agreement, a lien for the general balance of account between him and a ■ consignee, this lien shall not affect the right of the sender to carriers' lien. 589 stop in transitu^ i.e., in effect, that this right of general lien shall not operate upon or against the rights of third persons. The case of Wright v. Snell decides this case, for no sound distinc- tion can be taken, in this respect, between a public warehouse keeper and a public carrier, except, indeed, that the latter stands in a position more favoured by the law in respect to lien than the former, the carrier being obliged by law to re- ceive and carry the goods, whilst the warehouse keeper's claim arises out of a voluntary contract. It is contended in this case that the goods became, by the operation of the custom, fledged for the factors debt, although the factor was not authorised by law so to pledge them directly ; and although the factor may now, under some circumstances, pledge, the facts of the case do not bring it within the operation of the statute 6 George IV., cap. 94." Judgment against the ware- house keeper. — Tried in Court of Common Pleas, June 13, 1836. — From Bingham's RepoHs, vol. 3, page 99. The Old Carriers' Lien on Goods for the Carriage on THOSE Particular Goods did not Include a Lien for a General Balance. Case No. Skinner Y. Ux^shaw (1702) 341 Yc»-k V. Orenarujh {\703) 342 Aspinall V. Pickford {1802) ... 313 CaBO No. Butler V, Woolcott (1805) 344 Rushforth v Hadfeld (1805) ... 345 DIGEST. In Skinner v. Vpshaiv (i702) the carrier refused to part with or deliver to consignee the goods consigned to him until he paid the carriage on those particular goods. Chief Justice Holt held that the carrier could retain the goods for his hire. In York V Grenaugh (1703) goods had been stolen, and the thief had delivered them to a carrier. The carrier refused to give up the goods to the rightful owner until his hire for conveyance had been paid. Chief Justice Holt held that the carrier could detain the goods for his hire in such a cnse. 590 CAKRIERS' LIEN. In Asjnnall v. Fickford (I802) the carrier snatched a Judgment authorising him to retain goods to satisfy rinciple of Sivain v. Shepherd (1 M. & Kob., 223), in the authority of which, though it may be expressed perhaps somewhat too generally, I entirely concur." Judgment against the carrier, as the sender was the proper person to sue. — Tried in Court of Queen's Bench, June 20, 1842. — From Gale and Davison's Reports, vol. 2, page 552. WHETHER SENDER OR CONSIGNEE SHOULD SUE. 667 397. Minor v. London and North Western Railway CoTnpany. — Action for £5 for loss of a box of goods, London to Bradford. The box was delivered to Pickford & Co. at their receiving-house in Union Street, Southwark, London, they holding themselves out as the agents of the London and North Western Eailway Company. The case was first tried before Chief Justice Jervis at the Middlesex Sittings after Trinity Term, 1854, when a verdict for £5 was given for Plaintiff. The Plaintiff appealed as to costs, calling upon the Company to show cause why he should not recover his costs in the action. Justice Williams gave the Judgment of the Court — " The Court is of opinion that the Company did not carry on business in the borough of Southwark at the office of Pickford & Co. within the meaning of the 128th section of the County Courts Act, 9 & 10 Vic, cap. 95, for the only business carried on at that office was that which Pickford & Co. themselves carried on there, viz., the business of railway agency to the Defendants and several other companies." Judgment against Company. — Tried in Court of Common Pleas, December 1, 1856. — From Law Journal Rejjorts, vol. 26, page 39. 398. Whitfield V. South Eastern Eailway Company.^ Action for libel. The South Eastern Company, being owners of a telegraph between Ticehurst Eoad and Hast- ings, sent a message between these places as follows : — " The Lewes Bank has stopped payment ;" and Plaintiff, with others, being the proprietors of said Bank, claimed damages for the libel. The point turned upon wliether, under some circum- stances, express malice may be j)roved against a corporation aggregate. Lord Campbell held in favour of Plaintiff, and said — " Instances might easily be suggested where great injustice would be suffered by individuals if their remedy for wrongs authorised by coq^orations aggregate were to bo confined to the agents employed. Therefore, without adverting to the second point made by the Company's counsel, that at anyrate some of the counts impute negligence to the Company in tlie mode of working their telegraph, we think that there ought to be a Judgment for the Plaintiff." Judgment against Company. — Tried in Court of Queen's Bench, April 29, 1858.— i^Vom Law Journal RepoHs, vol. 27, page 229. 668 WHETHER SENDER OR CONSIGNEE SHOULD SUE. 399. Coombes v. Bristol and Exeter Railway Company. — Action for £12 18s. 4d. for a 100-lbs. package of whalebone lost between Exeter and Bristol. Consignee sued the Com- pany, and they contended that he did not deliver the goods to them, nor did the Company receive them from him to be carried. The case turned upon the point of whether or not consignee could sue as O'wner of the goods. This depended upon the question of the contract between sender and consignee as to at what point the property passed. Baron Martin said — " Consignee was at Exeter, and bought from sender some whalebone, and agreed to take a further quantity, which sender (Avery) was to send on to Bristol. This was a verbal contract. On 19th October the 100 lbs. of whale- bone in question was sent on. On 21st October consignee wrote to say the whalebone had not arrived, and that he would send a draft for the price when he got it. Consignee's letter to sender promising to pay for it on its arrival shows that the consignee considered sender to be the person who was to suffer the loss, and indeed sender suggested that consignee should make a claim against the Company, and send the amount, when received from the Company, to him. At common law, upon the sale of an ascertained chattel, on delivery to a carrier the pro- perty vested in the consignee. But by the 1 7th section of the Statute of Frauds — ' No contract for the sale of any goods, wares, and merchandises for the price of £10 sterling or upwards shall be allowed to be good except the buyer shall accept part of the goods so sold and actual fy receive the' same, or give something in earnest to bind the bargain, &c., or that some note or memoran- dum in writing of the said bargain be made and signed.' Therefore, unless one of these things have happened, this con- tract of sale was not good — not that such a contract is abso- lutely void, for if either event takes place at any time after the verbal contract, the contract becomes good. One other point was made, viz., that consignee authorised sender to enter into a contract which renders the Company liable independently of the question of property. But there is no evidence of such a contract. To establish such a liability it would be necessary to show that the Company had notice of the obligation they were incurring. As there is no evidence that the property passed from Avery, he alone was the proper person to sue. WHETHEK SENDER OR CONSIGNEE SHOULD SUE. 66J> Baron Bramwell said — "I am of the same opinion. The cases clearly show that the goods were not the goods of the consignee at the time of the delivery of them to the Company. The only way, however, in which there was a delivery to the Company by consignee was under the contract of sale. But the contract of sale was invalid, and therefore no authority to the Company to receive the goods for him. But it may be said the contract to carry was made in the name of the Plaintiff, and that he might rectify it. I do not think that, in fact, the contract was made in the name of the consignee. It is more reasonable to hold that the sender, when the property is not out of him, does not contract for the consignee." Baron Watson said — " I agree with the rest of the Court. The contract between the carrier and the person sending the goods depends upon the property. If the property has not passed out of the sender he must sue, as in the case of goods sent on sale and approval. If, when goods arrive, it is ojjen to the consignee to repudiate them, there is no complete contract. Baron Parke, in Swain v. Shepherd (1 Moo. & Rob., -223), said — ' Grenerally speaking, where goods of a fair merchantable quality are forwarded in pursuance of a written order which binds the person giving the order to receive the goods, the property passes to that person by the delivery to the carrier.' The observations of Lord Kenyon, in Daivs v. Peck (T.E., 330), apply to the other view of the present case — ' I cannot subscribe to one part of the argument urged on behalf of the Plaintiff, namely, that the right of property on which this action is founded is to fluctuate according to the choice of the sender or consignee, and that, consequently, either of them may at his pleasure maintain an action against the carrier for the non-delivery of the goods. In my oj^inion the legal riglits of the parties must be certain, and depend upon the contract between them, and cannot fluctuate according to the inclina- tion of either. This question must be governed by the con- sideration in whom the legal right was vested, for he is the person who has sustained the loss, if any, occasioned by the negligence of the carrier ; and whoever has sustained the loss is the proper party to call for compensation from the person by whom he has been injured.' " Judgment for Comj)any. — 670 WHETHER SENDER OR CONSIGNEE SHOULD SUE. Tried in Court of Exchequer, June 1, 1858. — From Hurlstone and Norman's Reports, vol. 3, page 510. 4-00. Shiels V. Great Northern Railway. — The Company were sued in the Lincoln County Court for injury to a horse, which took place at Newark. Newark is in a different county to Lincoln, and, although the Company have a station at Lincoln, the Company do not carry on business within the meaning of the statute 9 & 10 Vic, cap. 95, sec. 60, at every place where they have a station, but only at King's Cross, London — that is to say, only at the principal office, where the directors meet and the general business of the Company is transacted. The County Court Judge at Lincoln refused to hear the case. The question was carried to the Queen's Bench, and Justice Hill affirmed the County Court Judge's opinion. The Plaintiff may sue the Company in the district where the cause of the action arose by obtaining the leave of the Judge of the County Court of the district. — Tried in Court of Queen's Bench, June 11, 1861. — From Laiv Journal Reports, vol. 30, page 331. The following cases establish the same point : — Bourne v. South Eastern Railway (26 Law Times, page 60) ; Adams v. Great Western Raikvay (30 Law Journal, page 124, Ex.) ; Broivn v. London and North Western Railway Company (32 Law Journal, page 318). 4-01 . Broivn v. London and North Western. — Action for damage to a harp. Plaintiff, a harpist, was travelling from Ireland, via Chester, to London. At Chester, not having money to pay his fare to London, he left his harp by way of security, and was given a free ticket to London. Afterwards he paid the fare to the. Company, who sent him his harp. The harp suf- fered considerable damage in transmission. The Plaintiff sued the Company in the Chester County Court. The Company objected to the jmisdiction of the Court on the ground that the Company did not " dwell or carry on their business " in the Chester district within the meaning of the 9 & 10 Vic, cap. 95, sec. 60.. _ The Judge overruled the objection, and the Jury found a verdict for Plaintiff for £21. The Company appealed to the Queen's Bench, when Justice Wightman gave Judgment, and said — " I am of opinion the London and North Western WHETHEK SKNDER OR CO>'SIGXEE SHOULD SUE. 671 Company cannot be considered ' to carry on its business ' at Chester sufl&ciently for giving jurisdiction within the meaning of the County Court Act, and to hold it to be so would be to introduce the greatest uncertainty and inconvenience. The Act can only apply to the particular place at which the Com- pany or party carries on his general business, and not to the place where he carries on only a particular portion of it. The case is entirely one of jurisdiction, there having been no leave of the County Court Judge to issue the plaint out of the juris- diction." Justice Crompton and Justice Blackburn concurred. Judgment for Company. — Tried in CouH of Queen'' s Bench, JvMe 25, 1863. — From Laiu Times RepoHs, vol. 8, page 695. 4-02. Webber v. Great Western Railway Company. — Action for damage to a clock, Worcester to Chester. The question in this case turned upon the point as to which carrier should be sued. Pickford & Co., acting as carting agents, took the package from sender's house to Defendants' station at Worcester. The consignment docket was received from Pick- ford & Co. — " Sender, Skarrett — Two boxes, per London and North Western Kailway, to Webber, Chester — Charges forward." On the first trial, in the Court of Exchequer, it was held that the Great Western Company were the contracting company. On the appeal case Justice Willes said — " The question is whether there is sufficient evidence upon which the Jury could properly find that the contract to carry was between the Plain- tiff and the Grreat Western Company. It does not appear that goods intended to go via the London and North Western Rail- way could be conveyed otherwise than these goods travelled, namely, from Worcester to Bushbury Junction, where the two railways— Great Western and London and North Western — connect on the direct line between Worcester and Chester. In the next place, the way-bill was made out by the Great Western Company in their office and in the form of their way-bills. Again, the London and North Western Railway Company had no line by which they could carry the whole distance from Worcester to Chester, the only line by which there was direct communication between these places being that of the Great Western Railway Company. As to the contract being with 672 WHETHER SENDER OR CONSIGNEE SHOULD SUE. Pickford & Co., they were agents in Worcester for both Com- panies. We think the view the Jury took was quite correct, and therefore the Judgment of the Court below must be affirmed." Judgment against the Kailway Company for the amount of the damage. — Tried in the Court of Exchequer Chamber^ June 19, 1866. — From Hurlstone and Coltraan's Exchequer Reports, vol. 4, page 582. 4-0 3 . Meade v. South Eastern Ra'divay Company. — Action for damage by tar to flour from Framlingham to Brick Lane Station, London, thence to Bromley, in Kent, on the South Eastern Eailway. It appeared the flour was placed in a truck of the South Eastern Company that had been used for the carriage of tar, and hence the damage. On the first trial Chief Justice Cockburn held that there were two separate contracts for carriage with the two Kailway Companies, Great Eastern and South Eastern, but reserved the point whether the action was rightly brought in the name of the consignee. On the facts the Jury found a verdict for Meade (the Plaintiff) for £13 18s. On the appeal case Chief Justice Bovill said — " The South Eastern Company received the goods from the Great Eastern Company, and the question is. Who is the person that gave the authority for that delivery ? All parties seem to have been acting in the usual course of business as agents for the Plaintiff (consignee), and there was evidence of that to be left to the Jury. The South Eastern Company could not have recovered their charge for carriage from the Great Eastern Company, nor from Buckmaster, the sender. They could only recover it from him by whose authority and on whose behalf the goods were delivered to them, and who did pay for the carriage, viz., the Plaintiff. There was, therefore, evidence for the Jury of a special contract between the Plaintitf and the Defendants for the carriage of the goods, and on that ground the verdict must be sustained." Justice Brett said — " This was an action for the misuser of goods. The Plaintiff may sue for that either in respect of his right of property in the goods or in respect of a contract with the Company in regard to them. According to the declaration WHETHER SENDER OR CONSIGNEE SHOULD SUE. 673 here, the Plaintiff was the person who had made the contract of carriage. It is said that the Plaintiff had no property in the goods, and if that had been the point for our decision I should have been for granting the rule, though I am far from saying that the property did not pass; for by giving power to select, the Plaintiff may have waived his right to reject, and may have appointed the South Eastern Railway Com- pany agents to receive for him. But it is not necessary to go into that, for there was e\ddence of a contract for carriage between the Plaintiff and the Company, because by the course of business the goods were delivered to the Company for the Plaintiff. They charged him for the carriage, and he paid for it. If so, it is not open to the Defendants to say they have not contracted with the Plaintiff to carry for him. In this case, therefore, is the element which was wanting in Coomhes v. Bristol and Exeter Raihvay Company^ as was pointed out by Baron Martin, when he says — ' One other point was made, namely, that the Plaintiff authorised Avery (the sender of the goods) to enter into a contract which renders the Company liable independently of the question of property ; but there is no evidence of such a contract. To establish such a hability it would be necessary to show that the Company had notice of the obligation they were incurring,' namely, notice that they were carrying for the Plaintiff. Here the Company had such notice, and had agreed to carry for the Plaintiff according to the previous course of business." Judgment against the Com- pany. — Tried in the CouH of Common Pleas, April 22, 1870. — From Weekly RepoHer, vol. 18, pjage 735. 43 G74 PASSENGERS' DELAYS AND TICKETS, Page Fasseiigerg — General ... ... ... ... ... ... 674 „ Ohtruct'ing Enr/ines and Carriages (Trains) and Meddling with Signals ... ... ... 678 „ Delayed on Journeifs and Carrier Held Liable ... 680 „ „ on Jovrnei/s and Carrier Held not Liable 687 „ Publishing Convictions of Offences xinder Bye-Laws 706 Tickets — Shoiving Tickets, Ordinanj and Season... ... ... 685 ,, Passengers Travelling in a Higher Class Carriage than Warranted by their Tickets ... ... ... 692 ,, Excess Fares ... ... ... ... ... ... 695 „ Payment of Fare from Starting Place of Train when Passenger is Unable to Produce a Ticket ... ... 696 „ Season Tickets., and Conditions relating thereto... "... 702 ,, Passengers Booking and thereby Contracting to go to One Station, and Wilfully Leaving the Train at an Inter- mediate Station to Evade Payrnen t of the Proper Fare 703 GENERAL. Case No. Hozier v. Caledonian (1855) ... ... ,», ... ... 404 Company need not make one uniform rate of charge per mile for passengers. Pdce^.Duhlin Wickloiv and Wexford {1'^^^) 364 Railway companies cannot charge fractions of a mile in esti- mating third class fares. Jones Y. Eastern Counties (185S) ... ... ... ... 405 Company not required to issue season tickets at a uniform rate to all stations. 3Iotteram V. Eastern Counties (1859) ... ... ... ... 406 Passenger leaving a carriage while in motion — Held, that the Company's original bye-laws need not be produced in Court, and that proof of exhibition of same need only be given in respect of the stations concerned. Langdon Y. Howells (187d) 407 Passenger purchased a half return ticket from another passenger who could not use it — Ileld, that the ticket was not available. passengers' delays and tickets. 675 4-04-. Hozier v. Caledonian Raihvay Company. — Action for undue preference in respect to passenger fares. OEDINAET PAELIAMEXTARY TRAI>-. XKA.IN. Ist Class. 2nd Class. 2nd Clasa, 3rd Class. Mi'ies, B. d. 8. d. 8. d. s. d. Motherwell to Edinburgh ... 43 96 6 4 64 37 Motherwell to Glasgow ... 16 2 6 1 10 1 10 10 Contrasted with these fares, the fares exacted from passengers travelling along the whole line from Edinburgh to Glasgow, 59 miles, was 2s. first class, Is. third class. This, the Plaintiff contended, was an undue preference. Lord President M'Neil said— "I do not see that the Petitioner has shown any interest at all. I put the question whether he suffered any disadvantage by the proportional rating complained of, and the answer was that he did not complain of any disadvantage, but that he did not choose that parties travelling from Edinburgh to Griasgow should enjoy the benefit of a cheaper mode of travelling than he himself could enjoy. It does not appear to me to be a matter which the statute provides for at all. It provides for giNing undue preference to parties jjari jjo.ssu in the matter, but you must bring them into competition in order to give them an interest to complain. If two towns were situated on the line of rail- way, and, the market day of Edinburgh being Wednesday, if the Eailway Company were to resolve to carry goods on Tuesday from the one burgh, and resolved not to carry goods at all from the other burgh till Thm'sday for the same destina- tion, that would be a competition of interest, and a well- founded ground for complaint under the statute at the instance of parties connected with the second station by residence or traffic, because in that case there would be an undue prefer- ence of one competing interest over another. But there is nothing of the sort here. No injury is done to the party com- plaining, and it is always to be regarded in a matter of this kind that a company reducing rates to all parties travelling along their line do so at their own risk, and they themselves are the parties who suffer." Judgment for the Company. — Tried in the Court of Session, January 20, 1855. — From Scotch Sessions Cases, vol. 17, x^ge 302, N.S. 676 passengers' delays and tickets. 4-05. Jones V. Eastern Counties Railway Company. — Action in respect of undue preference. The Court refused to grant a rule for an injunction against the Eastern Counties Railway Company, under the Eailway Traffic Act, 1854, to compel them to issue season tickets between Colchester and London on the same terms as they issued them between Harwich and London, upon a mere suggestion that the granting the latter (the distance being considerably greater) at a much lower rate than the former was an undue and unreasonable preference of the inhabitants of Harwich over those of Colchester. Judgment for Company. — Tried in Court of Common Pleas, January 27, 1858. — From Scotfs Common Bench RepoHs, vol. 3, page 718. 4-0 6 • Motteram v. Eastern Counties Raihvay Company. —Prosecution by the Eastern Counties Eailway Company of P. C. M., before the Justices of Middlesex, for unlawfully leaving a carriage while in motion at Tottenham Station, he being a passenger from Bishopsgate. The Justices inflicted a penalty of 5s. and costs. P. C. M. appealed against this decision, and the Justices submitted the case to the Court of Common Bench. Appellant (P. C. M.) contended (1) that the original bye-laws of the Company had not been produced before the Justices, and that the examined and certified copy produced was not evidence ; (2) that it was necessary for the Company to prove that the bye-laws were affixed at every station on the line, as well as the two stations between which Appellant travelled; that the statute prescribes that the bye-laws are " to be hung up and affixed at every wharf or station, so as to give public notice thereof to the parties interested therein or afifected thereby." The Company contended that they were authorised by the 8 & 9 Vic, cap. 20, to make bye-laws ; that their superintendent of police had compared the printed bye- laws with the original, and proved before the Justices that it was a true copy ; that copies of the bye-laws were exhibited at Bishopsgate and Tottenham. Chief Justice Erie said — " I am of opinion the Judgment should be for the Company. The bye-laws is a document of a public nature, of an intensely interesting public nature, and it is passengers' delays and tickets. 677 very clear, to my mind, that it must be in the custody of the secretary of the Company. The statute anticipates its being under seal and copies from it being circulated. Then it is a public document, and in a public custody, and falls within the 14 & 15 Vic, cap. 99, sec. 14. I am of opinion the section (as to publication) may be construed to mean that the publica- tion might be with some limitation, so that the bye-laws affecting persons using a wharf should be published at the wharf, and those affecting persons using a station should be published at the station ; and so I think a bye-law should be proved to have been published at the station where any person is affected thereby. I think the Justices might infer from the fact of the bye-laws having been published at the two stations that they had also been published at the other stations on the line." Justices Crowder and Willes concurred. Justice Williams dissented. Judgment for Company. — Tried in CouH of Com- mon Bench, November 22, 1859. — From Law Times Reports, vol. 1, page 101. 4-07. Langdon v. Howells. — Action in respect to a passenger travelling on a half return ticket he had purchased from another person for 3s. The ticket was originally issued at New INIilford for Ludlow and back. The passenger was found in a down train at Neath, where the tickets were ex- amined. The case was first tried before the Magistrates, who dismissed the complaint. The ticket had printed upon it the words " Not transferable." On the appeal case Chief Justice Cockbum said — " I think that the case comes within the provisions of the statute 20 & 21 Vic, cap. 43, which provides for a passenger travelling without having previously paid his fare, and with intent to avoid payment thereof. It is not a case of a single ticket taken by 'A.,' but which 'A.,' being unable to use, hands over to ' B.,' a case which might possibly admit of different considerations. The ticket was a return ticket, which the Company issue at a cheaper rate, because they find it advan- tageous to issue tickets to persons intending to return, at a cheaper rate. If it is given by the original taker to a person who seeks to use it for the single journey, and so to travel at 678 passengers' delays and tickets. the cheaper rate for such journey, it seems to me clear that such person does travel without having previously paid his fare with intent to avoid payment thereof, within the meaning of the Act." Judgment for Great Western Eailway Company. — Tried in the Court of Queen^s Bench Division, May 17, 1879. — From Lcnu Reports, Queen's Bench Division, vol. 4, page 337. Obstructing Engines, Carriages (Trains), and Meddling WITH Signals. Case No. The Queen v. HadJleU (1870) ... 408 Case No, The Queen V. Hardy (1871) ... 409 4-08. The Queen \. Hadjield. — Prosecution for obstruct- ing signals by altering them. The 24 & 25 Vic, cap. 97, sec. 36, enacts that whosoever, by any unlawful act, shall obstruct, or cause to be obstructed, any engine or carriage used on any railway, shall be guilty of a misdemeanour. The station-master at Dukinfield Station, on the Manchester Sheffield and Lin- colnshire Eailway, about eleven o'clock on the night of the 14th January locked up all the doors of that station. He had just previously despatched the last train timed to stop at that station, and had seen that all persons, passengers and others, had left the station. He then arranged the signals for the night. There was a semaphore signal on the platform, having several arms, with a separate lever to work each arm ; and there were two signals at about 200 yards distant from and on either side of the station, one on the m\) line and the other on the down line, and both worked by levers from the platform at the station. The clerk put out the lights of the semaphore signal, and placed the arms down to indicate the lines " All clear," and the two distant signals he arranged so as to show white lights only, indicating that the lines were clear. He went to bed on the premises, and in a few minutes heard a knocking at the station door, and immediately afterwards he heard a person, who subsequently turned out to be the prisoner, climbing over a door in the wall of the station. He still heard the prisoner walk along the platform towards the semaphore signal and rattle the levers. He then looked out of the window, and saw passengers' delays a:s'd tickets. 679 that one arm of the semaphore was at right angles with the post and another at an acute angle, the former signifying "Danger," and the latter " Caution." He went out and found the prisoner outside the station near some steps leading to the door over which he had cHmbed to get into the station. The prisoner was not sober, and having been told by the station-master that he had been seen meddling with the signals, he ran away. He was followed by the station-master, who overtook him and gave him into custody. The driver of a goods train which under ordinary circumstances would have passed through the station without slackening speed, in con- sequence of the state of the signals shut off steam, and approached the station so cautiously that he could at any moment have come to a standstill. The mail train, following the goods train on the same line of rails, was due at the station half an hour after the goods train should have so passed through the station. The case was first tried before the Quarter Sessions for Chester, from which it was referred to the Court for Crown Cases Eeserved. Justice Blackburn said — " The question is, whether what occurred amounts to causing the engine and carriages to be obstructed. Any act which causes the train to be obstructed, though not of a physical character, is, I think, within the meaning of the section. Therefore the conviction before the Magistrates ought to be affirmed." Judgment in favour of the Company.— 2'WecZ, on api^eal, June 4, 1870.— From Laio Journal Reports, Magistrates' Cases, vol. 39, pa^/e 131. 409. The Queen v. Hardy.— l^vosecntion in respect to obstruction of a railway train. At 10 a.m.. May 24, 1870, the Defendant requested the signalman at the Luton Station on the Midland Kailway to stop the goods train then coming towards it on its way to Leagrave, two and a half miles nearer to Bed- ford, to which latter place he was anxious to proceed in order to catch a passenger train. The signalman and station-master refused to stop the train. The Defendant was a season ticket- holder, but he had no right to travel in a goods train. The Defendant proceeded along the line 700 or 800 yards, and he placed himself on the space between the two lines of railway, 680 passengers' delays and tickets. at a spot between two stations, and held up Lis arms in the mode used by inspectors of the line when desirous of stopping- a train. The driver of the goods train, acting on the supposi- tion that he was signalled by an inspector to slacken speed, shut off steam and reduced his speed from twenty miles an horn- to four miles an hour, and the Defendant by this means was enabled to jump into the guard's van, and thereupon the train resumed its natm'al speed, and, without stopping, pro- ceeded onwards. The case was first tried before Justice Keating, at Bedford, on the 26th July, 1870, upon an indictment under 24 & 25 Vic, cap. 97, sec. 36. The Defendant was found guilty, but the case was reserved for the opinion of a higher Court. Chief Justice Bovill held that the Defendant had unlaw- fully obstructed the train within the meaning of the above section of the said statute. Judgment for Company. — Tried as a Crown Case Reserved, January 21, 1871. — From Law Journal Reports, Magistrates^ Cases, vol. 40, joage 62. Passengers Delayed on Journeys and Carrier Held Liable. Case No. G. K V. Hawcroft (1852) 410 Denton y. G. N. (1856) 411 Case No. Buckmaster v. G. E. (1870) ... 412 Eohhs V. L. Sf 8. W. (1875) ... 413 4-1 0. Gi-eat NoHhern Railway Company v. Hawcroft. — Action for ;£21, hire of a carriage, Doncaster to Barnsley, and loss, trouble, and inconvenience from delay. Plaintiff, a con- fectioner, was a third class excursion passenger, Barnsley to London and back. On 2nd August, 1851, he took a cheap 5s. return ticket, Barnsley to London and back, to visit the Exhibition. On the back of the ticket was printed — " To return by the trains advertised for that purpose on any day not beyond fourteen days after date thereof." Plaintiff presented himself at King's Cross Station, 9th August, Saturday, at about 6 a.m., to go by the 6.45 a.m. " Exhibition train." He was unable to obtain a seat, and the train left with thirty carriages, two engines, and 1,000 passengers. Plaintiff applied to the station- master to be sent on by an ordinary train leaving shortly after,, passengers' delays and tickets. 681 but his request was refused. About noon same day a "special" excursion train was sent off with Exhibition passengers, but again Plaintiff was unable to procure a seat. He left London by advertised "Exhibition train," 9.15 p.m. on the Saturday night, reached Doncaster 6 a.m. Sunday morning, when there was no train forward, and he hired a conveyance on to Barnsley. The case was tried in the Barnsley County Court, when the Judge decided there had been a breach of contract, and the Company consented to a Judgment against them provided it were for the £21, which would give a right of appeal. The ver- dict was given accordingly, and the appeal made to the Queen's Bench. Justice Patteson, in giving Judgment, said — "The commencement of the ticket, ' Barnsley to King's Cross and back,' must mean that the Plaintiff is to be carried back to Barnsley. The Company, in my opinion, engage to carry the Plaintiff back by any of the trains advertised. The option is given him to say on what day not beyond fourteen days he will return, and whether by the morning or evening train (trains advertised for excursion passengers). If it had been made known to Plaintiff that if of his own pleasure he chose to stay for the evening train on the Saturday he would have to wait at Doncaster the whole of Sunday, I cannot say that he would have had any right to damages. But it was not the Plaintiff who chose to wait for the evening train ; the Company justifiably refused to take him by the morning train. I think Plaintiff is entitled to the damages." Justice Wightman con- curred. — Tried at Queen's Bench, Hilary Term, 18o2. — Laiu Journal Reports, vol. 2i,jKige 178. (The error seems to have arisen in advertising certain trains as Exhibition trains, which brought them within the scope of the contract on the ticket, quite irrespective of the absence of Barnsley on bill where the 9.15 p.m. was advertised to leave King's Cross.) 4-1 1 . Denton v. Great Northern Railway Com'pany. — Action for £5 10s., exj)enses, loss, and inconvenience from being detained at Milford Junction for a night, and unable thereby to reach Hull in time to attend to his business. The Company, in their March time-tables, advertised a train as a through train to Hull, to leave London at 5 p.m., calling at 682 passengers' delays and tickets. Peterborough at 7.20 p.m., and reacliing Hull about midnight. It appeared that on the 27th February, 1855, when the time- tables had been printed, but not issued, the North Eastern Railway Company had given Defendants notice they would not continue the next month to run their train in connection with the 5 p.m. train on from Milford Junction to Hull. It appeared the Company did not suppress their time-tables, but continued issuing them. On the 25th March Plaintiff took a ticket at Peterborough for Milford Junction, not being able to get a ticket by the train beyond in the direction of Hull. The case was first tried in the Bloomsbury County Court, but not settled, and was removed by consent to the Queen's Bench. On the new trial the Company contended they had made no contract, and the advertisement only amounted to saying the Company were willing to contract if persons offered themselves, and that a contract to make a contract was something novel ; that they were not liable for a false representation, as the damage to Plaintiff was caused by something which occurred off their line. Chief Justice Lord Campbell gave Judgment — " It seems to me railways would not be that benefit we find them if the time-tables are to be treated as so much waste paper, and not considered as the foundation for a contract. I think the Plain- tiff is entitled to recover, both on the ground that there was a contract and also for a false representation. We have here both a promise and a good consideration, and that in law constitutes a contract. An intended traveller makes all his arrangements with a view to the promise in the time-table being performed. The undertaking by the Company seems to me clearly indicated by that which is found on the face of the time-table. There is a conditional promise, and when the con- dition has been performed it becomes absolute. It can make no difference that tlie whole of the line is not the property of Defendants ; it is enough the time-table says that the train will run the whole of the way. The time-table contained what the law calls a false and fraudulent representation, and the Defendants thereby made themselves liable. It is an estab- lished rule of law that where a false representation is made knowingly, to which another gives credit, and damage is suf- fered, he has a remedy by action against the person who has PASSENGEBS' DELAYS AND TICKETS. 683 made tlie representation." Justices Wightman and Crompton concurred. Justice Crompton said that an action would lie against the Defendants for a breach of duty in refusing to take the Plaintifif to Hull as advertised. — Tried in Court of Queen's Bench, January 19, 1856. — From Laiv Journal Reports, vol. 25, page 129. 412. Buckmaster v. Great Eastern Railtvay Cornpany. — Action for delay to passenger. Plaintiff, a miller and a season ticket-holder, went to Framlingham Station, on a branch line, to take the 6.45 a.m. train to London to attend the London com market. The train was ready, but the engine had not sufficient steam up, and could not go. Hence Plaintiff, at an expense of £39 14s., took a special train, and now claimed that amount and damages. The Company contended they gave notice in their time-tables that they would not be liable for any delay in the starting or arrival of trains arising from atcident or other causes. Baron Martin held that " other causes " meant " other causes in the nature of accident." A railway company cannot absolve themselves by these words from negligence. It appeared the inability of the engine arose from the engine fire not having been lighted sufficiently early for the steam to have been got up. Judgment against Company for £39 14s. and £10 damages. — Tried in CouH of Exchequer, Noveiniber 10, 1870. — From Laiu Times Reports, vol. 23, page 471. 4-13. Hohhs V. London aiul South Western Raihvay Gom- pany. — Action for being overcarried, inconvenience, illness, &c. Plaintiff, with his wife and two children, seven and five years of age, had been spending the day at Wimbledon. They went to the Wimbledon Station between half-past 11 and 12 p.m., and were told that a particular train would take them to Hampton Court Station, from which place their home was between two and three miles. Plaintiff took tickets for Hampton Court. It appeared that on this particular night this train did not stop at Hampton Court, and Plaintiff was carried on to Esher Station. They were then six miles from home. No conveyance could be got, or accommodation at any inn. The night was misty, the road dark and lonely, and the wife and children greatly fatigued by the walk. The wife caught a chill, and was laid up for some 684 passengers' delays and tickets. time, and the husband incurred expense for medical attendance and necessaries, and was dejjrived of the assistance of his wife in his business. The case was first tried at the Surrey Spring Assizes, 1874, before Chief Baron Kelly, and a verdict given for Plaintiff of £8 beyond the £2 paid into Court, damages for the walking and inconvenience, and £20 for the illness of the wife and her sufferings — damages £30 in all. The Company appealed against the £20 for the wife's illness, and on the appeal case Chief Justice Cockbum said — " I am of opinion our Judgment must be for the Company in respect to the £20, and that the verdict should stand as regards the £10. There was a breach of contract. Plaintiffs did their best to diminish this by trying to get into an inn or to get a conveyance, but they could not do so, and had no alternative but to walk. As there was this personal inconvenience, I am at a loss to see why that should not be compensated by damages in an action like this. The case of Hamlin v. Gi^eat Northern Railway Company is not an authority that personal inconvenience should never be taken into consideration, and, if it had so held, I should not agree with the decision. I think there is no authority for saying that personal inconvenience, however serious, cannot be the subject of damages in such a case. As to walking home, it must be in the contemplation of the parties that passengers put down at a wrong place will have to get home. If there are means of doing so, they must avail themselves of them, and the Company are responsible for the cost incurred. If there are no such means, the Company are responsible, and must compen- sate for the inconvenience which the absence of means causes. In the case of the cold caught, that is not the primary, but the secondary consequence, and too remote." Justices Blackburn, Mellor, and Archibald concurred. Judgment against the Com- pany for £10, and in the Company's favour in respect of the £20. — Tried in Court of Queen's Bench, January 15, 1875. — From Law Journal Reports, vol. 44, page 49. passengers' delays and tickets. 685 Showing Tickets, Ordinary and Season. Case No. Woodwardv.E. a (1861) ... 414 Case No. Jennings v. G. N. (1865) 415 414. Woodward v. Eastern Counties Railway Company. — Eefusal to produce his ticket by a season ticket-holder. The Plaintiff had taken an annual ticket between London and Brentwood. On the 16th February, at Stratford Station, he was asked for his ticket. He refused to show it, saying he did not intend to produce it on that or on any other journey. The collector knew the Plaintiff was the holder of an annual ticket. The Justices convicted Plaintiff in 10s. and costs. In addition to the Company's bye-law, the Plaintiff, on receiving the ticket, signed a memorandum that he would " produce the ticket on entering the Company's carriages, or when required by the Company's servants, or in default thereof pay the ordinary fare."' On the ticket was a printed notice referring to the bye- law. The Plaintiff appealed to the Bail Court, when Justice Wightman affirmed the conviction, saying — " I am of opinion the conviction was right. It is just as important to enforce the production of annual as ordinary tickets. Anyone might state that he was the holder of an annual ticket without being so in fact, unless he were bound to show it. But it is urged Plaintiff does not come within the terms of the bye-law as he is not bound to deliver up his ticket. He may, however, be required to show it without delivering it up. There is a dis- tinction made in the bye-law between producing the ticket and delivering it up, and I think the Plaintiff falls within the terms of the bye-law. By the notice on his ticket the holder is to be subject to the regulations of the Company. It is said, however, that the contract between the Company and the Plaintiff ex- cludes the application, of the bye-law in this case. I do not agree with that view, and I think that both under the bye-law and the contract he was bound to prod ace his ticket, that by not producing it he incurred the penalty imposed by the bye- law." Judgment for Company. — Tried at the Bail Court, May 6, 1861. — From Laiv Journal, Magistrates' Cases, vol. 30, page 196. 686 passengers' delays and tickets. 4-15. Jennings v. Oreat NoHhern Railway Company. — Claim for £5 12s., damages and expenses incurred owing to the Plaintiffs three jockey boys being left behind, and Plaintiff having to hire persons to go with his horses to lead them from Ely to Newmarket. The Plaintiff was at the Lincoln Eaces, and at Lincoln Station booked three horses and took three third class tickets to Peterborough for his boys, and a first class ticket for himself, he being a horse trainer. The train being heavy, it was divided into two trains, one part sent on at 6.9 p.m. and the other at 6.35 p.m. Plaintiff kept all the tickets, and his carriage was on the first train ; as the train was starting, he called to an official that he had taken tickets for the three horses and three boys, and the official answered " All right, sir." Before the second train left, the ticket examiner found the boys in the boxes with the horses, and without tickets. It appeared there were twenty boys among the horses, and only twelve tickets had been issued, and it was a regular thing for the Company to be robbed in this manner by the connivance of the grooms. The three boys were turned out and left behind. The Company pleaded their bye-law as to no passenger being allowed to enter any carriage without paying his fare and obtaining a ticket, and producing the ticket when required. The case was first tried before Chief Justice Erie, at the Cam- bridge Summer Assizes, 1865, when the Jury gave Plaintiff a verdict for £5 12s. The Company appealed, and contended that it was Plaintiffs own fault that the lads were in the con- dition of not being able to show their tickets. The Court pointed out the inconvenience to the heads of families and proprietors of schools, &c., such a requirement would cause if each child was to have his or her own ticket. Chief Justice Cockburn said — " I am of opinion that there should be no rule in this case. It is unnecessary to determine whether, supposing the Company had given the tickets to the boys themselves, and the boys had not produced their tickets, having been once allowed to enter the carriages, it would be competent for the Company to turn them out of the carriages. The bye-laws were framed by the Company for the j)rotection of the Company, and the ground upon which I think there should be no rule is, that if the Company wish to enforce them for their own benefit. PASSENGEES' DELAYS AND TICKETS. 687 they must keep themselves in a position in which they can do so. In the present case they have put it out of their power to do so consistently with their contract with the master of the boys, for here they entered into a contract with the master to cany the boys, instead of contracting with the boys and gi\dng them a ticket each. In turning the boys out of the train the Company broke their contract with the master. Neither the master nor the boys were responsible for the division of the train. The Company delivered out the boys' tickets to the master, and it must be taken that they did not intend to en- force the bye-law in this particular case." Judgment against the Company.— Tr zee? in CouH of Queen's Bench, Nov. 4, I860. — From Laiu Times Reports, vol. 13, page 254. Passengers Delayed on Journeys and Carrier Held NOT Liable. Hamlin v. G. N. (1856) .., Prevostv. G. E. (1865) Hurst V. G. W. (1865) Gumming v. D. ^ B. (1868) Case No. 416 A.n 418 419 Thompson v. Midland (1875) Fitzgerald v. Midland (1876) Leblanch v. L. # N. W. (1876) Case No. 420 421 422 416. Hamlin v. Great NoHhern Eaihvay Company. — Action for £50, detention of passenger. Plaintiff, a master tailor, travelling to see customers at fixed times and places, took a ticket, London to Hull. He expected to reach Hull same night, but the train did not reach Grimsby in due time, and he could not get beyond. He reached Hull next day, paying Is. 4d. fare, Grimsby to Hull. This delay disarranged the whole of his tour, and detained him a week longer than it ever took him before to do the same tour. The Judge oranted him 2s. for his bed at Grimsby, Is. 4d. fare, and Is. nominal damages, not over 5s. at the outside. He said had Plaintiff posted to Barton the same night, and hired a special boat to cross the Humber to meet the train to the North by which he was desirous of proceeding, he would have been entitled to recover the expenses so incurred ; but not having incurred that expense, he could not recover it as damages. Plaintiff subse- 688 passengers' delays and tickets. quently applied to full Court for a new trial on ground of mis- direction, but it was refused. — Tried November 19, 1856.-#- From 1 Hurlstone and Norman's Reports, page 408. A-\7 , P'i'&vost V. Gi^eat Eastern Railway Company. — Action for delay to a passenger and overcarriage. Plaintiff on 5tli June, 1865 (Whit Monday), went to Lea Bridge Station to take the 2.37 p.m. train for Mile End Station. He was told by a guard and the ticket clerk the train would stop at IVIile End. The train did not come up to Lea Bridge until 3 p.m. Plaintiff proceeded by it, but owing to delays on the journey it did not reach Shoreditch (London) until 4.45 p.m. The train did not stoj) at Mile End. If the train had left Lea Bridge as advertised, at 2.37 p.m., it was due at Mile End at 2.54 p.m. Plaintiff had an appointment at 3.30 p.m. ten minutes' walk from ]Mile End, and was unable to keep it. On arrival at Shoreditch there was no train back to Mile End for an hour, so Plaintiff took a cab, but did not arrive at the place of his appointment until about 5 p.m. The Company contended they were not responsible, and that there was no negligence, and put in a copy of their time- table, containing the following notice : — ■ " These tables show the time at which the trains may he expected to arrive and depart from the several stations. Every exertion will be used to insure punctuality, but the departure or arrival of trains at the time stated will not be guaranteed, nor will the Company hold themselves responsible for delay or any consequences arising therefrom," In the next case of Hurst v. Great Western Raihuay Company it was held that the mere taking of a ticket did not prove a con- tract or duty on the part of the Company that the train should be at the station at the time when the passenger expected it. Justice Crompton said that damages for the loss of an appointment were not, in his opinion, recoverable. " The Company very properly decline to guarantee the time of the arrival or departure of trains, because there may be accidents or other matters which render punctuality impossible. It is, however, the duty of the Company to use due and proper care with the view of insuring punctuality. I think the contract and duty is simply that the Company will use proper care, and passengers' delays and tickets. 689 not be negligent. The Jury finding that there was no proof of negligence, I rule that in this case the Plaintiff can onlv recover on the ground that there has been negligence or want of care on the part of the Company. Negligence or a breach of duty must be proved to entitle the Plaintiff to recover. The Jury say there was none, and the Plaintiff must be non-suited." Verdict for Company. — Tried at Nisi Prius Summer Assizes, Home Circuit, August 10, 1865. — From Laiv Times Reports, vol. 13, j^age 21. 4-1 8 . Hurst v. Great Western Railway Company. — Action for twenty-four hours' detention at Grloucester through two trains not connecting. Plaintiff was journeying from Cardiff to Newcastle on a through ticket. The train from Milford which should have reached Cardiff at 4.34 p.m., owing to an accident, did not arrive until 6 p.m., and did not reach G-loucester in time for Plaintiff to go forward by the INIidland train at 8.17 p.m. A porter at Cardiff told Plaintiff the train was late owing to an accident. A long correspondence ensued between Plaintiff and the Company, in which the Company, while denying their liability, offered Plaintiff some portion of his claim, but not sufficient to induce a settlement. On the first trial the Judge refused to non-suit, and left it to the Jury, who gave a verdict for the Plaintiff. Leave was reserved to the Company to move to set aside the verdict and enter a non- suit, on the ground of there being no evidence of a cause of action. On the appeal case Chief Justice Erie gave Judgment — " I am of opinion the Judgment must be for the Company, on the crround that there is no evidence of a breach of anv duty or contract by the Company. The whole case rests on the ticket from Cardiff to Newcastle, and I am of opinion that the mere taking of a ticket does not prove a contract that a train will arrive at the time when it is expected. The train, no doubt, was expected to arrive earlier than it did, and if the time-bill had been put in evidence we should have seen what the contract was as to its arrival. (N.B. — No doubt the time- table contained the usual notice that the Company would not guarantee the times of arrival and departure, hence Plaintiff's counsel did not want to make it evidence.) No special con- 44 GOO PASSENGEES' DELAYS AND TICKETS. tract arises from mere talk with officials— casual talk with an official whose duty may merely be to open or shut the doors of the carriages, and indeed all that the porter says is that the train is late. It is quite consistent with all that appears in this case that the duty of the Company may have been fulfilled, and it lies with the Plaintiff to show that it was not." Justices Willes, Byles, and Smith concurred. Judgment for Company. — Tried in Court of Common Pleas, June 10, 1865. — From Law Journal Report,s, vol. 34, page 264. 4-1 9 . Cumming v. Dublin and Drogheda Railway Com- pany. — Plaintiff, a third class passenger, Dublin to Monaghan, claimed damages for detention of himself and luggage. He left the train at Drogheda, and, returning, got into a branch line train for Navan. Through this delay he had to go by evening train to Ballybay, and post, at an expense of 10s., to Monaghan. His portmanteau and despatch-box were allowed to go on to Lon- donderry. The former contained two sealed records for the trial of two actions at Monaghan in which Cumming was Plaintiff, and which actions he lost from the absence of the papers. The Judge directed the Jury that no special damages could be recovered for delay of the records. The Jury awarded 6d. damages for delay to the luggage, and 10s. for post car. The Jury held that it was through default of Company's servants that Plaintiff was left behind and that his luggage was over- carried. An appeal was heard before Queen's Bench for a further sum of £5 for personal inconvenience and discomfort, having been detained for several hours on his journey by Com- pany's neglect. The Court decided he was not entitled to any general damages for the mere personal inconvenience and dis- comfort, unless he could show actual injury or special loss, of which no evidence (beyond cost of car) had been given. — Tried before Justice O'Brien and Special Jury at Nisi Prius, Dublin, Michaelmas Term, 1868, and subsequently, on conditional order, before full Queens Bench. 4-20. Thompsons. Midland Railway Company. — Action for 14s. 7d., hotel expenses at Bristol for two j)assengers, owing to two passenger trains not connecting. The Plaintiff and his sister-in-law were tourist passengers travelling on a return passengers' delays and tickets. 691 tourist ticket, Worcester to Ilfracombe and back, via JNIidland Eailway to Bristol, thence by Bristol and Exeter to Portisbead, and thence by steamer to Ilfracombe. On the return journey the train that was timed to start from Portishead at 5.45 p.m. did not leave until 6.40 p.m., and hence, on arrival at Bristol, the JMidland Company's last train to Worcester at 7 p.m. had left, as the Portishead train did not reach Bristol until 7.20 p.m. The Midland Company contended their time-tables gave no information as to the times of trains to or from Portishead, but they gave notice to the public as follows : — " The granting of tickets to passengers to places off the Company's line is an arrangement made for the greater convenience of the public; but the Com- pany does not hold itself responsible for any delay, detention, or other loss or injury whatsoever arising off its lines, or from the acts or defaults of other parties, nor for the correctness of the times over other lines or companies." Also, on the second page of tourist programme, notice was given — "The tickets are issued by any of the through trains of the Company, and are available by any trains (except those specially mentioned). The Company do not undertake that the trains shall start or arrive at the times snecified in the bills, nor will they be accountable for any loss, inconvenience, or injury which may arise from delay or deteution." The case was first tried in the Worcester County Court, when a verdict was given for the Company. The Plaintiff then appealed, and on the appeal Justice Blackburn said — " It seems as if the Company did not enter into the sort of contract which Plaintiff contended for ; " hence Judgment for Company. — Tried in the Court of Queen's Bench, April 23, 1875. — From Law Times Repoiis, vol. 34, page 35. 421 . Fitzgerald v. Midland RaAlway Company.— Action for £17 for delay to a passenger booked, Birmingham to Lincoln, by 4.53 p.m., in October, 1875. In consequence of floods the train was three hours late arriving at Derby, viz., 9.30 p.m., and there was no train forward that night to Lincoln. Plaintiff slept at Derby the night, and went on at 6.25 a.m. next morning, expecting to reach Lincoln at 9.10 a.m.; but at Trent, owing to the floods, the train could not proceed, and Plaintiff then went home to London and did not proceed to Lincoln, the object of his journey having passed. The Birmingham County 092 passengers' delays and tickets. Court Judge gave Plaintiff a verdict for £5 ; but the Company- carried the case to the Court of Appeal, when Barons Bramwell and Grrove reversed this decision, and gave Judgment for Company. — Tried in Court of Appeal, June 2, 1876. — From Laiv Times Reports, vol. 34, page 771. 422. Lehlanch v. London and North Western Railway. — Action for .€11 10s., cost of a special train from Leeds to Scar- borough. Plaintiff on the 10th August, 1874, was a passenger, Liverpool to Scarborough. The train arrived at Leeds seven minutes after the train for Scarborough had left. Had the train reached Leeds in time to connect with the Scarborough train, Plaintiflf would have reached Scarborough at 7.30 p.m. By other trains leaving Leeds and York he could have reached Scarborough at 10 p.m., and even by the special train he did not arrive until between 8.30 and 9 p.m. Plaintiff was going to Scarborough for amusement, and did not consequently suffer any serious inconvenience. The case was first tried in the Middlesex County Court without a Jury, when Judgment was given for Plaintiff for the amount claimed. The Company then appealed to the Court of Common Pleas, who confirmed the Judgment of the the County Court Judge. The Company then carried the case to the Court of Appeal, before Lord Justices James, Mellish, and Baggallay, Justice Mellor, and Baron Cleasby, when the previous Judgments were reversed, and Judgment given for the Company ; and it was held that the Company were not responsible for the times mentioned in the time-table not being kept. — Tried in Court of Appeal, November 22, 1875, January \\, February 16, 17, and May 10, 1876. — From Law Journal Repjorts, vol. 45, page 521. Passengeks Travelling in a Higher Class Caeriage than Wabraijted by their Tickets. Case No. Bent/iam r. Uoyle (IblS) 423 Case No. Dyson V. L. Si' N. W. (1881) ... 424: 4-23. Bentham v. Hoyle (Lancashire and Yorkshire Raikvay Company).-— 'Prosecntion of the Appellant (Bentham) passengers' delays a>'d tickets. 693 for travelling between Stackstead and Baeup in a first class can-iage when he held a second class season ticket. Hoyle, the Lancashire and Yorkshire Company's ticket collector, was the nominal Respondent. The Company's bye-law is as follows : — "All passengers travelling, without the special permission of some duly authorised servant to the Company, in a carriage or by a train of a superior class to that for which his ticket was issued, is hereby subject to a penalty not exceeding 40s., and shall, in addition, be liable to pay his fare according to the class of carriage in which he has travelled from the station where the train originally started, unless he shows that he had no intention to defraud." The case was first tried at Bacup Petty Sessions, 16th May, 1877, when the Justices convicted Bentham. It was proved he rode in a first class carriage, and did not pay the excess fai"e. It was found, as a fact, that Bentham had no intention to defraud the Company. The Justices submitted the case to the Queen's Bench, when Lord Chief Justice Cockburn said — " I think the conviction must be quashed. Either the last part of the bye-law applies to the whole, namely, to the penalty as well as to the liability to pay the fare in addition from the place where the train originally started, or that, if this be not so, the bye-law itself is unreasonable and void. Now, if the intention to defraud is necessary to constitute the offence under the bye-law, then, as it has been found as a fact that no such intention existed on the part of Bentham, there ought not to have been a con- viction. Again, if a fraudulent intention is made immaterial under the bye-law for the particular offence for which proceed- ings were taken by the Company, then I am of opinion that such bye-law was altogether void as being repugnant to the general Act of Parliament ; and therefore, quacunque via this bye-law is regarded, it seems to me this conviction cannot be sustained. I think the mens rea must exist in order to create the offence. If the element of intention is omitted, the bye- law is inconsistent with the statute." Judge Manisty concurred. Judgment against Company. — Tried in CouH of Queen's Bench, January 24, 1878. — From Law Journal Reports, M.G., vol. 4:7, page 51. 4-24-. Dyson V. London and North Western Railway Company.— Action by a railway company for penalty of 40s. ()94 passengers' delays and tickets. owing to Defendant travelling in a different class to the class marked on his ticket. Defendant held a second class season ticket between Huddersfield and Marsden and the intermediate stations. On the 29th September, 1880, he travelled between Longwood and iNIarsden in a first class carriage. He passed out of the station at Marsden and did not offer the difference in fare, and the matter not being then known to the station- master, no demand was made for the excess fare. The Company brought Defendant before the Petty Sessions at Huddersfield, 16th November, 1880. The information was made under the 8th bye-law of the Company, made in pursuance of the statute 8 Vic, cap. 20, sees. 108 and 109, and duly certified by the Board of Trade, which 8th bye-law is as follows : — "Any person travelling, •without the special permission of some duly- authorised servant of the Company, in a carriage or bj a train of a superior class to that for wliich his ticlcet was issued, is hereby subject to a penalty not exceeding 40s., and shall, in addition, be liable to pay his fare according to the class of carriage in which he is travelling from the station where the train originally started, unless he shows that he had no intention to defraud." The Justices considered the case proved, fined Defendant lOg., and held that he had intended to defraud the Company. The Defendant was dissatisfied with the decision, and desired the Justices to state a case for the Judgment of the Court of Queen's Bench. Justice Lindley, in giving Judgment, said — "I have no doubt the Eailway Comj)any has power to make bye-laws. The first thing we have to do is to construe this bye-law, and it appears to me distinctly divisible into two parts. The first part is — ' Any person travelling, without the special permission of some duly authorised servant of the Company, in a carriage or by a train of a superior class to that for which his ticket was issued, is hereby liable to a penalty not exceeding forty shillings.' That is the first part, and we cannot add on to that part the words ' unless he shows that he had no intention to defraud,' which are really added to the second part, which is — ' And shall, in addition, be liable to pay his fare according to the class of carriage in which he is travelling from the station where the train originally started.' I think the bye-law passengers' delays and tickets. 695 means exactly what it says — that a person so travelling is Hable to a fine of forty shillings, and in addition, unless he shows that he had no intention to defraud, he is liable to pay the extra fare. If the bye-law is one and indivisible it is clearly bad ; but I think it is divisible, and I come to consider whether the first part is bad. " The Kailway Clauses, 8 & 9 Vic, cap. 20, sec. 103, is in these terms — * If any person traA'el or attempt to travel in any carriage of the Company, or of any other company or party nsing 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 wiLfuUy proceed in any such carriage beyond such distance without previously paying his fare for the ad- ditional distance, and with intent to avoid payment thereof; or if any person knowingly and wilfully refuse or neglect, on arriving at the point to which he haa paid his fare, to quit such carriage, every such person shall, for every such offence, forfeit to the Company a simi not exceeding forty shillings.' " The Company have here struck out the whole gist of the offence, in direct contradiction of section 103. Looking at the power to make bye-laws, we see that they must be in con- formity with the Act. Now the conclusion I have come to is that the bye-law here is severable, and the only part which is material is bad, upon the authority of Bentham v. HoyU (37 Law Times Eeports, N.S., 753 ; 47 Law Journal, 51 M.C.)." Justice Mathew said — " I am of the same opinion. I think the directions in the statute have not been observed, because the bye-law is intended to secure to the Company more than Parliament has given them. The principle that bye-laws should be upheld even if in part good seems to me dangerous. I agree that the bye-law is divisible, and the result is to divide it into two bye-laws, both of which are, in my opinion, bad." Conviction quashed. Judgment against Company. — Trud in CouH of Queen's Bench^ March 29, 1881. — From Laiv Times Meports, vol. 44, page 609. Excess Fares. Case No. Great Western v.Pococh{18TJ) 425 4-25. Great Western Raihuay Company v. PococL Action for 3d., excess fare from Westboume Park to Padding- 696 TASSENGEES' DELAYS AND TICKETS. ton. Mi: Pocock took a return ticket for 2s. 6d. from West- bom-ne Park to West Drayton, and on the return journey he travelled beyond Westbourne Park to Paddington, and 3d. excess \Yas demanded. He declined to pay, because a retm-n ticket, Paddington to West Drayton, was only 2s. 6d., the same fare. The case was first tried in the County Court, when Judgment was given against the Company. The Company appealed to the Exchequer Court. Baron Huddleston said — " This is really a question of contract. The ticket is un- doubtedly the contract between the parties, and that contract is that in consideration of 2s. 6d. the Company agree to carry Pocock from Westbourne Park to West Drayton, and on the same day to bring him back to Westbourne Park. When he arrived on his return journey at Westbourne Park the contract was at an end, and the Company had fulfilled their part of the contract, and Pocock was not entitled to travel on to Padding- ton on the ticket." Justice Hawkins concurred. Judgment for Company. — Tried in Exchequer Court, November 7, 1879. — From Latv Times Reports, vol. 41, page 415. Payment of Fare from Starting Place of Train when Passenger is Unable to Produce a Ticket. Case No. Dearden(L.^Y.)x.Toivnsend(l8G5) 426 Blown V. Great Eastern (1877) 427 Case No. L. B. Sj' S. a V. Watson (1879) 428 Saunders v. South Eastern (1880) 429 426. Dearden {Lancashire and Yorkshire Railway Com- pany) V. Townsend. — Action for the first class fare, Salford to Newehurch. Defendant took a first class return, Ewood Bridge to .Salford (Manchester) and back. On the return journey he travelled beyond Ewood Bridge to Newehurch. Upon alighting at Newehurch he presented his half return ticket, stated he had travelled beyond Ewood Bridge, and offered to pay the first class fare, Ewood Bridge to Newehurch. The station- master refused to accept it, and demanded the full single fare, Salford to Newehurch. Defendant refused to pay. He was summoned before the Petty Sessions at Eawtenstall under the Company's bye-law, which provides that persons are not allowed passengers' delays and tickets. 697 to enter any carriage without purchasing a ticket, and, failing to produce their ticket when demanded, are required to pay the fare from the place whence the train originally started, &c. The Magistrates dismissed the information upon the ground that the bye-law did not apply to the case. An appeal was then taken to the Queen's Bench, when Chief Justice Cockburn said — " The Secretary of State would never have assented to such a bye-law if it was understood that it was to have the effect the Company claimed — that when you know where the man comes from, and he produces his ticket for part of the journey and is ready to pay the remainder, he should be charged for the whole journey. The ticket which he produced showed where he came from. He has a ticket for a portion of the journey, and it is iniquitous to charge him for the whole journey. If the Defendant had wished to get out to take a fresh ticket, the guard most probably would have said, ' Oh, no ; pay the difference at the next station.' I am of opinion that the decision of the Magistrates in this case was right, and the case was one in which the Defendant could not be convicted under this bye-law, it being perfectly clear upon the facts that this gentleman was perfectly innocent of any intention to defraud the Company. I think that the bye-law relates to the case of parties who, having taken a ticket, are travelling in a carriage, but who fail to produce the ticket when required." Justice Mellor said — " I do not think it ever was intended to give the Company the power to say that a man who is travelling without a ticket ten miles, but who travels honestly and with- out any intent to evade payment, is thereby to become liable to the penal consequences of forfeiting the fare for 100 or 200 miles." Justice Lush said — " If the Comjmny made a bye-law to the effect that any person who, having paid his fare to a station-master for a certain distance, should continue beyond, however innocently, must pay for the whole distance, that bye- law would be void, the 103rd section of the statute having said that it should be an offence only when it was done with a fraudulent intent." Judgment againt the Company. — Tried in Court of Queen^s Bench, November 11, 1865. — From Law Times Reports, vol. 13, page 323. 698 passengers' delays and tickets. 4-27. Brown v. Great Eastern Railway Company. — Action for 7s. 6d., fare from Colchester to Stratford. At Stratford Mr. Brown was asked to show his ticket, which he refused to do. He was asked from what station he had come, and he repHed " From " (which was not on the Company's line). He afterwards added "the collector knew very well where he came from, and that he was a season ticket-holder." It turned out he held a second class season ticket between Brentwood and Liverpool Street Station (London), and the fare from Brentwood to Stratford was 3s. 6d. The Company sum- moned jNL". Brown before two Justices of the Metropolitan Police for the fare from the station the train started from, viz., Colchester, and they referred the case to the Court of Queen's Bench on the following points : — L Whether a demand for the sum required by the Com- pany (7s. 6d.) to be paid was necessary at the time the oflfence was committed, or whether the proceedings taken before us were a sufficient requirement under the said bye-laws ? 2. Whether the extra payment required to be made under the said bye-law (JNIr. Brown being a season ticket-holder from Brentwood only) was a forfeiture, and recoverable within the meaning of the statute 8 & 9 Vic, cap. 20, or whether it con- stituted a penalty, and consequently came within the principles laid down in Dearden v. Townsend ? Justice Lush said — " I should say, if it were necessary to decide the point, that the fare due under the Company's bye- law is in the natm-e of a penalty, for the amount of the fare from the original station whence the train starts is generally a larger sum than the passenger would have to pay from the station whence he started, and he has to pay it for some act of omission on his o^vn part. I am also of opinion that the bye- law is not bad merely because it does not fix the exact amount which is to be paid, for it has been held that a bye-law is good which imposes a reasonable charge the exact amount of which must be subsequently ascertained. However, it is not necessary to decide that point, as I am of opinion that as the amount was uncertain, and had to be ascertained by reference to the place from which the train originally started, and as that fact is ^jresumably better known by the Company than by PASSEiNfGERS' DELAYS AND TICKETS. 699 the passenger, it was necessary that a demand should have been made at the time for the amount of the fare. The ground on which I decide this case is that, before proceedings are taken under the bye-law, notice of the amount claimed must be given to the passenger." Justice Mellor concurred. Judgment against Company. — Tried in Court of Queen^s Bench, June 7, 1877. — From Laiu Times Reports, vol. 36, page 767 ; also Laiv Journal Reports, vol. 46, page 231, M.C. 4-28. London Brighton and South Coast Raikvay v. Watson. — Action by Kailway Company for Id. fare excess. Defendant, without intent to defraud, travelled from Norwood Junction to Lower Norwood without obtaining a ticket. At Lower Norwood he tendered the fare for the distance travelled ; the Company demanded the fare from New Croydon, the place from which the train started. The difference between the two fares was Id. Ultimately the fare from Norwood Junction to Lower Norwood was paid, and the Company brought an action in the Surrey County Court to recover the Id. fare from New Croydon, the starting place of the train. The decision in the County Court was against the Company. An apfteal was made to the Court of Common Pleas, and there again the decision was against the Company. An appeal was then made to the Court of Appeal, when Lord Justice Bramwell said — " It was argued for the Company that the amount claimed was a fare, and not a penalty, and therefore recoverable, not before two Justices as a penalty, but as a debt in the County Court. I am of opinion it is not a debt, and that the Company have no power to create such a debt. I have no doubt that a railway company may demand and insist on payment before taking a passenger, and that if they give him credit for his fare they may- insist upon any sum they think tit, and, if he agrees to it, it would be a valid debt recoverable as such. But if he does not agree to it, he may indeed be a trespasser in getting into the carriage, and liable to damages as such, or they may waive the tort and recover a fare on the quantum meruit scale ; but they cannot fix or insist on a fare at their pleasure. They have not sued for trespass or a tort, but for a fare. They have not shown, and of course could not show, that the Defendant ought 700 passengers' delays and tickets. to pay more than the ordinary fare. Consequently the appeal fails, and the Judgment must be against the Company." — Tried in Court of Appeal, December 20, 1878, and February 1, 1879. ^Froni Laiu Journal Reports, vol. 48, page 316. 4-29. Saunders v. South Eastern Railway Company. — Action for Is. 4d., excess fare Blackheath to Waterloo, Black- heath being the starting place of the train. Plaintiff held a season ticket over the two lines, available from either Charing Cross or Cannon Street to Windsor and back. On the 26th February Plaintiff arrived in a South Eastern train at Waterloo Junction, and was about to pass the barrier to go to the London and South Western Company's train for Staines, when he was asked to show his ticket. He replied to the ticket collector, " Season," and the answer was " Show it, please." Plaintiflf refused to show his ticket, which it appeared he really had with him. The collector then said he must charge him from Blackheath, but did not demand any specific sum. Plaintiff refused to pay. On the 16th March Plaintiff, before Mr. Wyndham Slade, Metropolitan Police Magistrate, was mulcted in the sum of Is. 4d., the amount of the fare from Blackheath to Waterloo. This decision was objected to, and the Magistrate submitted the case to the Court of Queen's Bench. The Com- pany relied upon their bye-law, as follows : — •' No passenger will be allowed to enter any carriage used on the railway, or to travel therein upon the railway, unless furnished by the Company with a ticket specifying the class of carriage and the stations for conveyance between which such ticket is issued. Every passenger shall show and deliver up his ticket (whether a contract or season ticket, or otherwise) to any duly authorised servant of the Company whenever required to do so for any purpose. Any passenger travelling without a ticket, or failing or refusing to show or deliver lip as aforesaid, shall be required to pay the fare from the station whence the train originally started to the end of his journey." Chief Justice Cockburn said — " I have no hesitation in say- ing that a season ticket-holder has no exemption from the duty to produce his ticket which is reasonably imposed upon all ticket-holders. I am of opinion, first, that the bye-law is bad ; secondly, that it was inapplicable, under the circumstances, to the case of the Plaintiff. As regards the validity of the bye- law, I am strongly disposed to think that such a bve-law was I PASSEJ^GEKS' DELAYS AXD TICKETS. 701 ultra vires. The power to make bye-la^-s is given by the lOStli section of the Eaihvay Clauses Act." Justice Lush said — " The question is the validity of the bye-law upon which the Magis- trate proceeded. It appears to me that the penal clause of this bye-law is ultra vires and void, on the ground that the penalty it imposes for refusing to show the ticket is variable and dependent on the accident of the ticket being demanded at an early or late stage of the train's journey. A passenger who has travelled only the last ten miles in a train which has travelled 100 miles is fined ten times as much as another who started at the station a quo, and whose ticket was demanded at the end of ten miles, although the offence of refusing to show the ticket is precisely the same in one case as the other. A bye-law which Has this effect cannot be deemed a reasonable bye-law. The passenger is not only required to show his ticket when demanded — a requisition which is perfectly reasonable, and which may be enforced by a reasonable penalty — but he is required to deliver up. A season ticket is a contract by which the Company engages to carry the holder, free of any further charge, for a specified period between certain specified stations. Until that period has expired the owner is entitled to retain the ticket as his own property. He is bound to show it when required, in order that the Company's servants may see that it is still in force and that it entitles the owner to be where he is. The bye-law would in terms justify the Company in demanding it back on the first journey which the holder makes under it, though it be on the very day the ticket was purchased. The same objection applies to a single journey ticket. The holder of such a ticket is entitled to keep it till he has arrived at the station where the tickets for such a journey are collected. Our duty is to test the bye-law by established principles of law, and to regard what the bye-law authorises, and not how it is applied in practice. I do not discuss the validity of that part of the bye-law which imposes as a penalty for travelling without a ticket the whole fare from the starting point of the train. That point has already been decided by the Court of Common Pleas." Judgment against Company. — Tried in Court of Queen's Bench, May 28 and Jxdy 5, 1880. — From Laio Times liejjorts, vol. 4S, page 281. 702 passengers' delays and tickets. Season Tickets, and Conditions relating thereto. Case No. ae>jhornv.O.E. (1879) 430 Case No. Cooper V. L. B. ^ S. C. (1879) ... 431 4-30. Cleghorn v. Great Eastern. — Action by Plaintiff, a season ticket-holder, for £1 deposit withheld by the Company owing to Plaintiff not returning two expired season tickets untU nine days after the date of expiry, the Company holding that, by the agreement Plaintiff signed, the deposits had been forfeited. The case was tried before Mr. Besley, Deputy Judge, City of London Court, who gave a verdict for Plaintiff. On consulting counsel, an appeal was not advised, as the clause in agreement ran — " Shall be surrendered (the ticket) on its expiry," and would be construed within reasonable time. It was deemed better to amend the agreement — " The ticket to be delivered up within three days of the date of its expiry." — Tried in April, 1879. 4-31 . Cooper V. London Brighton and South Coast Rail- way Company. — Action for 10s., deposit for a season ticket, which the Company forfeited owing to the ticket not being delivered up on the day of expiry. The ticket was issued for October, 1876, between London and Brighton. Plaintiff paid the 10s. deposit, and signed the usual conditions, among which were that the ticket must be delivered up to the Comjmny on the day after expiry. On the ticket was a notice that in the event of its being lost a reward of 10s. would be given to any person taking it to the secretary of the Company. Plaintiff was sent a printed notice a few days before the expiry of the ticket, reminding him that if he did not wish to renew it, then the ticket should be delivered up immediately on expiry, or the deposit would be forfeited. Some few days after the expiry of the ticket Plaintiff delivered it up to the Company, and de- manded his 10s. deposit, which, owing to the delay, was refused. The case was first tried in the City of London Court, and the Court found that the ticket had been delivered up in reasonable time, and gave a Judgment against the Company. The Com- pany appealed to the Court of Exchequer, when Chief Baron passengers' delays and tickets. 703 Kelly said — " The contract in this case is really very clear and plain. We cannot release the Plaintiff from any one of the stipulations to which he has agreed, or hold that the breach of any one of them will not incur the forfeiture of the deposit, without holding that every one is void ; it would, in fact, go to the avoidance of the entire contract. It has been contended for Plaintiff that we are to strike these words, ' on the day of expiry,' out of the clause, and to substitute for or to add to them the words, ' within a reasonable time afterwards.' But what is a reasonable time, and who is to determine what is a reasonable time ? If Plaintiff had lost his ticket and the Company paid the finder 10s., the Company would be liable in an action like the present one to pay the 10s. over again to the ticket owner. That possible consequence is, I think, conclusive as to the construction to be put upon this contract, and as to the necessity under which the Court is placed of giving effect to every word and letter of the contract literally as it is here expressed." Justice Hawkins concurred. Judgment for Com- pany. — Tried in Court of Exchequer, March 28 and April 1, 1879. — From Laiv Times Reports, vol. 40, page 324. Passengers Booking and thereby Contracting to go to One Station, and wilfully Leaving the Train at an Inter- MEDL4.TE STATION TO EVADE PAYMENT OF THE PROPER FaRE, Case No. 432 The Queen v. Frere (1855)... Birchell V. M. S. J. Sf A. (1861) 433 G. N. V. Nisbei (18G4) Case No. 434 4-32. The Queen v. Frere. — Action for 2s. for difference in fare. Defendant took a ticket from Norwich to Colchester for 5s., and left the train at Diss, a station short of Colchester. The distance, Norwich to Colchester, is 62|- miles, while to Diss it is only 43^ miles. Owing to competition passengers were being carried from Colchester to Norwich at 5s., while the fare from Colchester to Diss was 7s. The Company obtained a conviction under their bye-laws before a Magistrate, when Defendant appealed to Queen's Bench, before Lord Campbell and Justice Wightman, who quashed the conviction, holding 704 passengers' delays and tickets. that the Company had no right to prevent Defendant (INIr. Frere) leaving the train at any station he thought proper. It was understood that the leaving the train was not accidental, but that it was the intention of Mr. Frere when he took the ticket at Norwich to leave the train at Diss. Lord Campbell, in giving Judgment, abstained from giving any opinion as to the power of the Company to make special regulations by which a larger fare may be charged for a shorter distance, or as to the validity of any bye-law they might make for enforcing those regulations. — Tried January 24, 1855. — Jurists Reports, vol. 1 , page 700 ; also in laiv Journal. 4-33. Birchell v. Manchester South Junction and Altrincharn Railway Company. — Action for Is. 7d., fare Warrington to Stretford. Plaintiff took a return ticket,, Manchester to Warrington and back, for 2s. 6d. The single fare, Manchester to Warrington, was Is. lOd., and from Warring- ton to Stretford (a station short of Manchester) Is. 7d., total 3s. 5d. Thus Plaintiff, by taking the return ticket from Man- chester to Warrington for 2s. 6d., and getting out at Stretford, saved lid., which he admitted was his object. Plaintiff paid Is. 7d. at Stretford under protest. The Company pleaded their notice on ticket — "This ticket is only available for the places named thereon; the holder alighting at or departing from an intermediate station will have to pay the full fare.'' The Company pleaded that the contract entered into having been broken, the Company were entitled to the fare to the station at which Plaintiff alighted, and quoted East Lancashire Raihvay Company v. Bowers, also East Lancashire Railway Company v. Hartley. After an adjournment, Plaintiff quoted The Queen v. Frere (24 Law Journal Eeports, New Series, Magistrates' Cases, Case 68). The decision by Chief Justice Campbell and Justice Wightman was for Defendant, the difference between that case and the present being that the former was brought by the Eailway Company against a passenger who, having booked from Colchester to Norwich, got out at Diss. Verdict for Plaintiff. — Tried at Manchester County CouH, December 13, 1861. PASSENaERS' DELAYS AND TICKETS. 705 4-34-. Great Northern Railway Company v. Daniel Lang Nishet. — Action for 16s. 3d., difference of fare between a third class ticket, London to Morpeth, and a second class fare, London to Newcastle ; also 8s. 10|d. for carriage of a 61-lbs. parcel containing merchandise, not being passenger's luggage. It appeared that by the 9.15 p.m. train, London to Scotland, pas- sengers could book third class to Morpeth and ride in second class carriages. Defendant desired to make use of this rule to get to Newcastle, a shorter distance, at less cost — the second class from London to Newcastle by this train being 40s. 6d., while the third class fare to Morpeth was only 24s. 3d. The Company obtained leave from the Court to administer " inter- rogatories " to Defendant, when he admitted he had no business at Morpeth, and did not intend going there, and that the parcel carried as luggage contained merchandise. On the face of the ticket was the following notice : — " This ticket is issued on the understanding that it is only available as a ticket to Morpeth, and not to any other station ; and should the holder alight at any other station, either short of or beyond Morpeth, he or she will have to pay the full second class fare to such station from the place of starting." Defendant told the porters at London he was going to New- castle, and accordingly his luggage and the parcel were so labelled. At Newcastle the Defendant left the train and re- fused to go on to Morpeth. His luggage was detained and sent on to Morpeth, but subsequently returned to Newcastle. The Company contended Defendant, in obtaining the ticket, entered into a contract with them to travel to Morpeth, or, if he alighted at any station short, to pay the full second class fare. Defendant contended no such contract was made, as he did not read, and was not bound to read, the conditions printed on the ticket, and that he was justified in leaving the train at Newcastle. The Company quoted the cases of Steivart v. London C('ge 482 ; also in Weekly Reporter, vol. 16, j)cige 908. 4-37. Gwynn v. South Eastern Raihvay Comjoany. — Action for libel. The Plaintiff had been brought before the Lord Mayor of London with respect to travelling without a ticket between Woolwich and Cannon Street, and a fine of Is. inflicted, or in default three days' imprisonment. The Com- pany issued a placard at their stations in which they set forth the conviction, " or in default condemned to three days' impri- sonment vnth hard labour." (The italics are ours.) The case was tried in the Court of Queen's Bench before Chief Justice Cockbum and a special Jury. The Judge, in summing up, said — " The Company has no more right to publish such placards than any ordinary man has. If you are called to account for a libel, you can say, ' I have said no more than the truth ;' but if you go beyond the truth, and state what you cannot prove, then you are liable." Jury gave a verdict for £250. — Tried in Court of Queen's Bench, July 7, 1868. — From Laiv Times RepoHs, vol. 18, page 738. 708 CLOAK-ROOM CASES. PASSENGEES' LUGGAGrE LOST, DELAYED, &c. Anderson v. "N. E. (1861) StaHard v. G. W. (1862) ... Van Toll v. S. E. (1862) .. Caee Cage No. No. 438 Pepper v. S. E. (1868) ... 441 439 Harris v. G. W. (1876) ... ... 442 440 Parker y. 8. E. (1877) ... 443 DIGEST. In Anderson v. North Eastern (isei) a case of travel- ler's patterns was lost out of cloak-room, and it took fifteen days to replace them. The Company were sued as icarehousemen for £57 for patterns, case, salary, and expenses. Chief Baron Pollock held the Company to be bailees (not exactly warehousemen), "responsible for loss to the amount of the value, but there is no under- taking to be answerable beyond the value, except by special contract." Consequential damages are not re- coverable. In Van Toll v. South Easter?! (I862) a bag containing jewellery, value £20, had been, in error, delivered to a wrong person from a cloak-room, and when recovered the jewellery was missing. Chief Justice Erie held the Company did not receive the bag as warehousemen, according to the usual meaning of the word. "In a contract for bailment (taking charge) the bailee may impose whatever terms he chooses, if he gives notice of them and the bailor has the means of knowing them, and if he then chooses to make the bailment he IS bound by them. . . The reasonableness of the terms is an irrelevant inquiry, the parties being at liberty to choose their own terms." The Company's notice as to parcels over £10 value was in large letters in the cloak-room, and the same notice was printed on the ticket. Judgment for Company. In Stallard v. Great Western (I862) Phiintiff could not get his luggage out of cloak-room on a Sunday night CLOAK-ROOM CASES. 709 without forty minutes' delay, whereby he lost the train to Sheffield. Chief Justice Cockburn held — " It is no part of the terms of the contract (notice on ticket) that the luggage should not be given up on a Sunday ; on the contrary, it is to be given up on the production of the ticket." Company held liable for damages. In Pepper v. South Eastern (I868) luggage left at cloak- room, Folkestone, was sent to London and unreason- ably delayed. The Company were held not liable, there having been no wilful act. In Harris v. Great Western (1876) ^60 was claimed for loss of a portmanteau and box accepted as left luggage and ticket issued, but deposited in the vestibule adjoining cloak-room, and from thence stolen. Judge Blackburn held the Company protected by their notice, and because the luggage, being in value over ,£5, was not so declared. In Parker v. South Eastern (i877) £24 was claimed for a bag lost from Charing Cross cloak-room. Lord Bramwell, in Court of Appeal, held the Company protected by their notice, and the Plaintiff was in point of law bound by the terms (of notice) ; and that it would not be right, or just or reasonable, that he should be allowed to say that he was not aware of the conditions because he had not read them. He was of opinion that if the Plaintiff knew there was printed matter on the ticket he was as much bound by the terms it contained as if he had read them, or as if the porter had called his attention to them. 4-38. Anderson v. North Eastern Raihvay CoTnpany. — Action for £57 10s. for loss of a traveller's case of patterns from the Newcastle-on-Tyne left luggage office. The station- master at the time admitted the loss, and advised Plaintiff to order a fresh case of patterns, which took fifteen days to get. Plaintiffs claim was £20 for patterns, £Q for case, £31 10s. salary and expenses during fifteen days' delay. The case was first tried at Liveqiool before Justice Keating, when the 7K) CLOAK-KOOM CASES. Jury fouml for (he Company, the Judge directing them not to take into account any damage incidentally or collaterally resulting from the loss beyond the actual value of the case. Plaintiff appealed to the Court of Exchequer, when Chief Baron Pollock said—" The Judgment must be for the Com- pany. The Plaintiff sued the Company as warehousemen, not as carriers. There is a great difference between a warehouse- man and a carrier. Where a carrier is employed, it is known and must be assumed that the goods are going for some purpose, and so far it is notice which may render the carrier responsible for damages resulting from loss of the goods ' beyond their actual value ; ' but the simply depositing a parcel at a warehouseman's till to-morrow cannot be notice which shall affect the warehouseman, in case of the loss of the parcel, beyond the actual value of the article. He is responsible for loss to the amount of the value, but there is no undertaking to be answerable beyond the value, except by special contract." Baron Martin concurred. Baron Bramwell said — "There would be no possibility of defining their responsibility if we were to hold that their liability varied with the consequences collaterally resulting from the loss of such parcels." Judgment for £'20 only. — Tried in Court of Excheqiter, A^ril 17, 1861. — Frora 'Laiu Times RepoHs, vol. 4, page 216. 4-39. Stallard v. Great Western Raihvay Company. — Action for £50 damages, arising from delay to Plaintiff getting his luggage from cloak-room on a Sunday night, whereby he missed the train to Sheffield and his Monday's market. PlaintifT left a case of patterns, on his arrival at Paddington on the Saturday evening, in the up platform cloak-room. He paid 2d., and received the usual ticket. On the Sunday, at 8.30 p.m., he w^nt to the cloak-room and found it closed, and owing to inquiries and hunting up the inspector, forty minutes were occupied, whereby he lost both Sheffield trains by London and North Western and by G reat Northern Eailways that night. The case was first tried before Justice Blackburn, London Sittings after Hilary Term. The Jury gave a verdict for 40s., and leave was given to appeal. On the appeal case Chief Justice Cockbum said — "T am of opinion that the verdict should CLOAK-ROOM CASES. 711 stand. It is no part of the terms of the contract (notice on ticket) that the case should not be given up on a Sunday ; on the contrary, it is to be given up on the production of the ticket. But for the technical rule arising from the small amount of damages, I should have been inclined to have granted a new trial on the ground that the verdict was against the weight of evidence." Justice Crompton said — " The rule (for a new trial) is asked for on the ground that- there was no evidence for the Jury of unreasonable delay. There certainly was evidence. By this ticket the Company agree to keep articles until they are wanted, and they might naturally expect that when deposited on a Saturday the goods might be wanted for some Sunday train. It is a question of fact for the Jury whether the case was, when demanded, delivered in reasonable time. The Company contend they are not bound to open the cloak- room on a Sunday, but it is notorious people do travel on a Sunday. The Company's practice in keeping the cloak-room open differently on Sundays to other days makes no difference unless notice to this effect had been inseHed on the ticket. The Plaintiff was misled if, without any notice to the contrary, he tried to get his property and could not succeed for forty or fifty minutes." Justices Blackburn and Mellor concurred. — Tried in Court of Queen's Bench, April 16, 1862. — From Lavj Journal Repods, vol. 31, page 137. (Reported in Lato Times as " Stanner," not " Stallard," vol. G, page 217.) 440. V<'J'n Toll V. South Eastern Railway Company. — Action for £20 for jewellery abstracted from a lady's bag left in the cloak-room at the London Bridge Station, 6th August, 1861. Plaintiff, on leaving the bag, paid 2d., and received a ticket with the following notice printed at the back : — " The Company will not be responsible for articles left by passengers at the station unless the same be duly registereil, for which a charge of 2d. per article will be made and a ticket given in exchange, and no article will be given up without the production of the ticket or satisfactory evidence of the owner- ship being adduced. A charge of a penny, per diem, in addition, will be made on all articles left in the cloak-room for a longer period than twenty-four hours. The Company will not be responsible for any package exceeding the value of £10." On Plaintiff applying for the bag, it could not be found. Ultimately it was traced as having been delivered by mistake 712 ■ CLOAK-ROOM CASES. to another person. On its recovery a great part of the jewellery it had contained was missing. The case was first tried at the INIiddlesex Sittings after Michaelmas, before Chief Justice Erie, and the Jury gave a verdict for £20. The Judge gave leave to appeal, and the Court to be at liberty to draw such inferences of foct as a Jury might. On the appeal case Chief Justice Erie said — " In this case the declaration was upon a contract to keep safely and return on demand. The Company had placed a notice in large letters in the cloak-room, which all resorting to might see and read if they chose, and also printed the same notice on the ticket delivered to Plaintiff. Plaintiff stated she did not see the large notice, but was not asked whether she read the ticket. The Jury found as one issue that the jewellery had been stolen. Plaintiff contends that the deposit of the bag brings the case under the Eailway Traffic Act, 17 & 18 Vic, cap. 31, sec. 7, which regulates the terms a railway company may make for receiving, forwarding, and delivering goods. We are of opinion the Company did not receive the bag in the capacity of carriers to forward, and that the statute has no application. The Company did not receive the bag as ware- housemen, according to the usual meaning of the word. In a contract for bailment the bailee may impose whatever terms he chooses, if he gives notice of them and the bailor has the means of knowing them, and if he then chooses to make the bailment he is bound by them. Here there is no carrier's contract ; the Company are at liberty to make any contract they please ; and where the question is what were the terms of the bailment so made, the reasonableness of the terms is an irrelevant inquiry, the parties being at liberty to choose their own terms. I still beg to adhere to this, that, considering the nature of the ac- commodation, the condition appears to me very reasonable. If valuable goods are deposited where so much freedom of cir- culation is essential, the danger of dishonesty would be great ; and if an action would lie for £20 or £30 worth of jewellery, it might lie for any sum." Justices Willes, Byles, and Keating concurred. Verdict for Company. — Tried in Court of Ccmraon Pleas, Ajfjril 17, 18G2. — From Laiv Journal Reports, vol. 31, jjage 241. CLOAK-ROOM CASES. 71S 441 . Pejpjper v. South Eastern Railway. — Action for delay to a trunk of luggage deposited at Folkestone left luggage office, and sent thence in mistake to Charing Cross, London, where, after a long and unreasonable delay, it was recovered by Plaintiff. It was held — " Where an article deposited in the cloak-room of a railway company exceeds £10 in value, a notice on the ticket given to the depositor that ' the Company will not be respon- sible for any package exceeding the value of £10,' protects the Company from liability, not only for the loss of such an article, but also for delay in delivering it, at least tvhere the delay is caused by no ivilful act or default of the Company, and with- out their privity and knowledge." — Tried in Court of Queens Bench, January 17, 1868. — From Laiv Ti'ines RepoHs,vol. 17, page 469. 44-2. Harris v. Gi^eat Western Railway. — Action for £60 for value of a portmanteau and box deposited at the cloak-room, Paddington. The Plaintiff, a lady, arrived at Paddington, and her relative deposited the luggage on her behalf with the Com- pany's servants as left luggage. Cloak-room labels were put on the packages and the usual ticket issued, and 4d. paid. The two articles were left in the vestibule adjacent to the cloak- room. It appeared this vestibule was accessible to passengers, and it seems some thief, before the articles were removed into the cloak-room, abstracted the labels, and then, with cool impudence, called one of the Company's policemen to remove the articles, which he did, and they were taken away. The thief, however, was convicted, and part^ of the property re- covered. The case was first tried before Baron Pollock without a Jury. The Company contended that by the conditions at the back of the ticket they were not liable for packages over £5 in value unless so declared, and in this case no declaration was made. The Judge, however, found against the Company £60 damages, with leave to appeal, and the Appeal Court to draw inferences of facts. The two questions discussed were whether Plaintiff was under the circumstances bound by the terms of the notice on the ticket ; and, secondly, whether, on the true construction of those terms, they jorotected the Company from liability for loss arising as this did. Judge Blackburn, on the 714 CLOAK-KOOM CASES. appeal case, came to the conclusion that both these questions should be answered in favour of the Company, and Judgment must therefore be for the Company. He said — "The ticket has on the face of it a plain and unequivocal reference to the conditions printed on the back of it, and any person who read that reference could without difficulty look at the back and see what those conditions were. If I could agree with my brother Lush that the meaning of the contract is that the Company are to place the luggage in some separate warehouse to which none but the Company or their servants had access, so that the placing of them in the vestibule was a breach of contract, I should be inclined to agree in thinking that the Defendants are liable to make good the loss arising from that breach of contract. I do not think that depositing the luggage in the vestibule would have been any breach of contract if the Com- pany had taken reasonable precautions to protect the luggage whilst placed in the vestibule from danger, as, for instance, by leaving a competent person to stand sentry over them till it was convenient to remove them to a more secure place. They would, if the parcels were under £5 value, be, in my opinion, liable, not because they were placed in the vestibule, but because they took no care of them when there. I read the contract as being to take reasonable care of the luggage, and to be responsible for any loss occasioned by that want of care, with, in effect, a proviso that, inasmuch as the remuneration is very small and the loss may be very great, the Company shall not be responsible for loss if the goods exceed £5 in value, unless the value is declared and jjaid for. So construed, the condition protects the Company in the present case." Justice Mellor concurred. Justice Lush dissented. Judgment for Company. — Tried in CouH of Queen's Bench, April 26 and May 30, 1876. — From Laiu Journal Reports, vol. 45, page 729 ; also Law Times RepoHs, vol. 34, page 647. AA-3. Parker v. South Eastern Railway Company; also Gahell V. Sarae. — Action for £24: 10s. for a bag deposited at left luggage room, Charing Cross. On the back of the ticket given Plaintiff as a receipt for the fee was the usual notice that the Company would not be liable for the value of any CLOAK-ROOM CASES. 715 package over ^10. On front of the ticket was printed " See back." The case was first tried at Westminster before Baron Pollock and a common Jury. The Judge left two points to the Jury — (1) Did the Plaintiff read, or was he aware of, the special terms of the contract ? and (2) whether the Plaintiff ought, under the circumstances of the case, having used proper caution, to have read or been aware of those terms ? The Jury found both these questions in favour of Plaintiff, and gave him a verdict accordingly. The Company appealed, when Lord Coleridge said — " I am of opinion the Company are liable. The question turns upon certain elementary pro- positions as to the law of contract, qualified by some of the decisions which have been cited. It has been contended, first, that there is no contract ; but the acts of the parties fm-nish the evidence of the contract. The Plaintiff gives the Company his package ; they charge 2d., and upon this hypothesis they give a paper containing conditions, none of which are brought to the knoidedge of the Plaintiff; and it seems impossible to say that, if there are conditions which form the basis of a contract, there is no contract. It seems the ordinary contract to take care of the package. In the case of a sale, when the vendor hands to the purchaser a document containing the conditions of the sale, the purchaser must be taken to be aware of those conditions ; then, although he might satisfy a Jury that he never read the conditions of sale, the answer would be — ' You had the opportunity, and the vendor has a right to assume you read them, and you must be taken to have done so.' " Justice Lindley said — "I am of the same opinion, the Company is liable. If there is any contract, it is either on ordinary bailment or a contract as shown on the back of the ticket. The Jury have found that it is not the contract on the back of the ticket, and therefore it is an ordinary contract. It is said there is no contract at all, because the Company took the goods on terms which the Plaintiff did not consent to ; and, looking at the findings of the Jury, my view is that the Company took the goods without notice of any other con- tract than that of ordinary bailees. The case of Henderson v. Stevenson (Law Eeports, 2 Scotch App., 470) applies in this case." Judgment against the Company. — Tried in Court of 716 CLOAK-ROOM CASES. Common Pleas, April 29 and May 1, 1876. — From Laiv Journal RepoHs, vol. 45, page 515. The case was taken to the Court of Appeal, when it was argued before Lord Justices Mellish, Bramwell, and Baggallay, who took time to consider Judgment, which was now given. Lord Bramwell gave the Judgment of the Court that there must be a new trial. He held that there had been misdirec- tion in the Court below, and that the verdict was against the evidence. He said it was a question of law, and not of fact. It was clear that if Plaintiff had read the conditions and had not objected, he would have been bound by them, and no point could have been made that the contract was completed before the ticket was delivered to him. So if he had been told that the terms were on the back of the ticket ; so if he knew of them — that is, knew the terms were there, though he did not read them ; and it was admitted that he knew there was printed matter on the back of the ticket, and did not pretend that he did not believe it had to do with the matter, and only said that he did not know that it contained the terms and conditions of ! the contract. That being so, he was of opinion that the Plaintiff was, in point of law, bound by the terms, and that it would not be right, or just or reasonable, that he should be allowed to say! that he was not aware of the conditions because he had not read them. He was of opinion that if the Plaintiff knew there , was printed matter on the ticket he was as much bound by the terms it contained as if he had read them, or as if the porter had called his attention to them. He thought there had been a misdirection, and that the right question had not been left to the Jury. The question put to the Jmy was whether the Plaintiff was under any obligation to read or make himself aware of the terms of the ticket, but that was equivocal. Obligation to whom? To himself? Then he might excuse himself from such obligation. He (the Judge) thought thf case differed from that of Henderson v. Stevenson, decided ir the House of Lords. Justice ]\Iellish's Judgment was read. He thought th( question was one of fact, and that the right question had not been left to the Jury ; hence, he thought, there should be i new trial. CLOAK-ROOM CASES. 717 Justice Baggallay's Judgment was also read. He thought the form in which the question had been left to the Jury was not strictly correct. He held that if the practice of indorsing such terms on the ticket was general, and was known, no doubt the parties would be bound by them. But no such practice had been shown to exist, nor did he judicially know of its exist- ence ; and the primary object of the ticket might well be sup- posed to be that they should be held as vouchers for the goods deposited. He agreed to a new trial.— Tried at Court of Appeal, London, April 25, 1877.— From Raihvay News, April 28, 1877.— See Laiu Journal Reports, vol 46, page 768. 718 PASSENGERS' LUGGAGE. Page Passengers^ Luggage — Ttnilway Companies are Common Carriers of Passengers^ Luggage^ and within the 7th Section of Railway and Canal Act, h/ Land and Sea 719 „ General 719 ,, (Departure) Lost off Platforms at Commence- ment of Journey, when the Question of Acceptance hy Company Arises 723 „ {Anivat) Lost of Platforms at End of Journey, when the Question of Legal Delivery Ai'ises 732 ,j Articles Carried as Passengers' Luggage and Held to he Merchandise, and the Com- pany not Liable for their Loss 738 „ Carried by a Passenger, and Lost when Travel- ling on an Excursion Ticket 746 „ Lost on the Journey between England and France, or other Foreign Countries ... 748 „ Lost at Junctions and Joint Stations during Transference from one Company to another Company 756 „ Li respect to the Right of Suing for Lost Jjvggage belonging to a Servant when his Master Travelled with him and Paid his {Servant's) Fare 768 „ Articles Found in a Railway Carriage he- long to the Finder in the absence of the Rightful Owner Claiming them ... 759 Articles Lost or Stolen out of Carriages ... 760 passengers' luggage. 719 Eailway Companies aee Com:\ion Caeeiees of Passengees' Luggage, and ^vithes^ Section 7 of Raila\ay and Canal Act, by Land and Sea. Case I Case No. I No. Macrowv.G.W. (1871) 466 | Cohen y. S. E. (1877) 473 Passengers' Luggage — General. No. G. W.V.Goodman {18b2) 444 Turner v. Midland (1854) 445 Case I Case No. Narjlden v. MM. G. W. (1858) ... 446 Stevenson v. L. 4' N. W. (1867).,. 448 M'Kenna v. C. # H. (1858) ... 446 \ Bewlersmi v, Stevenson (1875) ... 447 /\/\/\ , Great Western Railway CoTnpany v. Goodman. — Action for £'65 14s. for a trunk of passengers' luggage, London (Paddington) to West Drayton. Plaintiff gave her luggage in charge of a porter on her arrival at the station, and saw labels put on it. On arrival at West Drayton she received two packages, but the trunk was never delivered, and it was admitted that it had been stolen. The Company contended that the following bye-law exempted them from liabiHty : — "Every first class passenger •will be allowed 112 lbs., and every second class passenger 5G lbs., of luggage free of charge ; but the Company will not be responsible for the care of the same unless booked and paid for accordingly." No evidence was given on the part of the Company of any arrangement being made by them for booking the luggage of passengers. The Company contended (1) that the trunk had never been delivered in fact into the custody of the Company so as to make them liable for it ; (2) that the Company are absolved from the liabiHty by their bye-laws. The case was first tried in the County Court of Marylebone, Middlesex, when a verdict was given for the Plaintiff. The Company appealed. Justice JNIaule said — '• Independently of the bye- law the Company would have been liable. The Plaintiff pays for her ticket and delivers her luggage to the porter. That makes the Company liable at common law. Can it be said that the bye-law has any effect when the Plaintiff had no knowledge of it ? Is it competent for the Company by a bye- 720 PASSENGEKS' LUGGAGE. law to repeal their common law liability as carriers? The proper effect of this bye-law would be to give the directors power to make contracts restricting the Company's liability in respect of luggage, but they do not seem to have proceeded on it. It has been treated as a dead letter." Judgment for Plaintiff. Justice Cresswell said — " The case does not show that the Com- pany have any proper office for booking luggage under the bye-law." Justices Cresswell, Williams, and Talfourd con- curred. — Tried in Court of Common Pleas, May 11, 1852. — Fro'tn Laiv Journal Reports, vol. 2 \, page 197. 4-45. Turner \. Midland Railway. — Action for loss of a commercial traveller's luggage. Plaintiff arrived at Derby Station just too late for the 11 a.m. Birmingham train. He had been drinking. He went away from the station, and left his luggage on a stand on the platform where the omnibus man had put it. He returned for 2 p.m. train intoxicated, and had to be assisted into a carriage. He made a claim for the lost luggage, and brought an action in the Queen's Bench, which was tried, December, 1 853, before Chief Justice Lord Campbell. In spite of the Judge summing up strongly in favour of the Company, the Jury gave a verdict for £15 damages. The Company moved for a new trial, which was refused, from the amount being under £20, and because of a technical rule which the Company did not take themselves out of by showing the verdict to have heen a pei'verse one. — Motion for new trial before Lord. Caonpbelland Justice Coleridge, February, 1854. — Super- intendents' Minutes, Railway Clearing House, Feb. 21, 1854. 446, M'Keoina v. Chester and Holyhead Raihvay. — Action for the loss of a portmanteau, passenger's luggage, for which £300 was claimed. The Company claimed, under the Common Law Procedure Act, 1856, section 56, to deliver to Plaintiff certain interrogatories as to the contents of the port- manteau, which was said to contain ten suits of clothes, twenty shirts, &c. Baron Richards, following the case of Sharp v. Glasgoiv and South Western Railway Company (Queen's Bench ) Chamber, 3rd April, 1857), made the following order: — "That ( the Defendants be at liberty to deliver to the Plaintiff, or his n attorney, the said interrogatories in writing ; and that the (I Plaintiff do, within ten days after service of this rule and ofi: passengers' luggage. 721 the said interrogatories, answer the questions in writing, by affidavit, to be sworn and filed in the ordinary way." — Tried in the Consolidated Chamber, November 30, 1858. — From Irish Common Law Reports, vol. 8, Appendix, page 2Q. A similar case is also reported in same volume. Appendix, 55 — Naghten v. Midland Great Western Railway Company. 4-4-7. Henderson (Steam Company) v. Stevenson. — Action for £71 for loss of ^passenger's luggage in steamer " Countess of Eglinton," Dublin to Whitehaven, wrecked off Isle of Man. Plaintiff purchased a ticket, at the back of which was printed— "The Company incurs no liability in respect of loss, injury, or delay to the passenger or to bis luggage, -whether arising from the act, neglect, or default of the Company or their servants, or otherwise. It is also issued stibject to all the conditions and arrangements published by the Company. " Plaintiff's action was brought 19th June, 1872, before the Lord Ordinary (Lord Grififord), when he obtained a verdict. An appeal was tried at the Court of Session, and decision adhered to. The case was then brought before the House of Lords, and Judgment given by the Lord Chancellor and Lords Chelms- ford, Hatherley, and O'Hagan. It appeared that in the two previous trials it had been held in each case that there had been negligence on the Company's part in the loss of the vessel, which took away the Company's plea that the vessel was stranded by an accident of the sea. Thus, negligence having been proved, the trial in the Lords turned upon the point of the notice at back of the ticket. Plaintiff swore he never read the notice at back of the ticket. The Company's managing director was asked if he gave any instructions to the clerk who issued tickets to call attention to the notice at back of same. He answered, " No." The clerk said " he was not in the way of drawing the attention of passengers to the condition on the back of the ticket, nor to the notice on time-bills." The Lord Chancellor held that it would be extremely dangerous to hold that where a document is complete on the face of it, but having on the back of it something which has not been brought to the knowledge of a contracting party, he should be held to have assented to that which he has not seen and of which he knows nothing. There was nothing on the face of the ticket referring 46 722 TASSENGEIIS' LUGGAGE. Plaidtijf to the hack. Lord Chelmsford said — "It may be a question whether, if a passenger read the indorsement (on the ticket) and declined to agree to the terms, the Company could refuse to take him as a passenger. Holding themselves out as undertaking to convey passengers by their vessels, it might be held that they were bound to carry upon the terms of their common law liability alone, unless the passenger (chose) to enter into a special contract." Lord Hatherley said a ticket was nothing more than a receipt for the money paid. Lord O'Hagan — "When a company desires to impose special and stringent terms upon its customers, there is nothing unreason- able in requiring that those terms shall be distinctly declared and deliberately accepted." The appeal was dismissed with costs. — Tried in House of Lords, June 4, 1875. — Law Reports, Scotch and Divorce Appeal Cases, vol. 2, page 470. 4-4-8. Stevenson v. London and NoHh Western Railway Company. — Action for loss of passenger's trunk from London- derry, via Belfast and Fleetwood, to Birmingham. It appeared Plaintiff took a through ticket from Londonderry to Birming- ham at the office of the Northern Counties Eailway Company at Londonderry, and on the back of the ticket was printed — •'This ticket, so far as regards any distance beyond tiie limit of the line of the Londonderry and Coleraine Company, is issixed by them as the agent only of other companies, and they will not be responsible for the safe carriage of any passenger, or of any articles accompanying such passenger, beyond the said limit." The Plaintiff sued the London and North Western Company, who allowed the Plaintiff to travel on their line by virtue of this ticket, but it was sworn that the railway company which had issued the ticket had no authority to contract on their behalf. The Plaintiff had lost his luggage on the line of the English Company, which had an agent in Dublin. The Court ordered service on the English Company to be substituted by service on their agent in Dublin, and Chief Justice Monahan said the Company would find it very difficult at the trial to persuade a Jury they did not adopt the act of the party pro- fessing to be their agent. " For the purpose of this motion we assume they did, and accordingly make absolute the order." — Tried in the Court of Common Pleas, 1867. — From Irish RepoHs, Common Laiv, vol. \,p)age 692. passengers' luggage. 723 Case Case No. No. 449 Lovell V. L. C. Sj- D. (1876) ... 452 450 CoTien V. a. E. (1877) .. 473 451 Berglieim v. 0. E. (1878) ... ... 453 DEPAETUKE. Luggage Lost off Platforms at Commencement of Journey, ^^'HEN THE Question of Acceptance by Company Arises. Munster v. 8. E. (1858) ... Agrell v. L. ^ N. W. (1875) Leach v. S. E. (1876) 44-9 • Munster v. South Eastern Raihvay Company. — Action for damages owing to the Company refusing to carry- passenger's wearing apparel, as follows : — December 10, 1856. — One shawl package containiDgabook slide, a silk coat wrapped ia a maud or shawl and fastened by a leather strap, and under the strap two pots of cocoa. December 12, 1856.— One parcel, strapped and sealed up, containing wearing apparel, two books, and some newspapers, December 17, 1856. — One shawl package containing wearing apparel. February 7, 1857. — One shawl package containing wearing apparel. In all cases, except the first, the parcels were addressed in Plaintiff's name tQ Tunbridge Wells. The Company had a regulation that shawls should not be labelled and put in the van. The porters on each occasion refused to label the shawl parcels and put them into the van, but offered to put them into the first class carriage in which Plaintiff travelled, and to put them under the seat for him. This the Plaintiff did not wish, and told the porter and station-master in each case they might put the parcel where they liked, but he would not take charge of it. His reason for this was that in December, 1855, when travelling by the same train (the Dover train), which was usually very long, he had to leave his carriage without its reaching the platform. It was a dark, wet night ; he had several parcels in the can-iage with him, and he got out at an unlighted spot between two platforms ; there were no porters, and in struggling with his parcels he nearly broke his neck in getting to the platform. In each case the parcels were left on the platform at London, and after the train left were treated as "unclaimed" luggage. \\Tien 724 passengers' luggage. Plaintiff applied for the parcels, he was asked to pay 6d. under the following published bye-law : — " All unclaimed property found on the Company's premises or in their carriages is deposited at the lost property office at the London Bridge terminus. If there be an address on the articles found, notice will be sent to that address that the property is in the Company's possession ; and if there be no address thereon, the packages will be opened at the expii-ation of one week with a view to ascertain the address of the owner, when notice will be forwarded to him ; and the property will in either case be restored to the owner on payment of a fee of Od. for each article, or forwarded, if desired, at the usual parcels rates. An additional charge of 6d. per week is made after the expiration of the first week on each article left for a longer period." The Plaintiff refused, and relied on section 131 of the Com- pany's Act, 6 Will. 4, cap. 75, as follows : — "And be it further enacted, that without extra charges it shall be lawful for eA'cry passenger travelling upon or along the said railway to take with him his articles of clothing, not exceeding 40 lbs. in weight and 4 cubic feet in dimensions ; and the said Company shall in no case be in any way liable or responsible for the safe carriage or custody of, or for any loss of or injury to, any articles, matters, or things whatsoever carried upon or along the said rail- way with or accompanying the person of or belonging to any passenger, or delivered for the piirjjose of being carried, other than and except such passenger's articles of clothing not exceeding the weight and dimensions aforesaid : provided always that nothing herein contained shall in any case extend, or be deemed or construed to extend, to charge or make liable the said Company further or in any other case than where, according to the laws of this realm for the time being, stage-coach proprietors and common carriers would be liable ; nor shall anything herein contained extend, or be deemed or construed to extend, in any degree to deprive the said Company of any protection or privilege which, either now or at any time hereafter, common carriers or stage-coach pro- prietors have or may have, but the said Company shall from time to time and at all times have and be entitled to the benefit of every such protection and privilege." The Court were in some doubt as to the first two parcels, from their not consisting entirely of wearing apparel. The Plaintiff then gave up those two cases, and Judgment was delivered by Chief Justice Cockbum, who said — " The question in dispute between Plaintiff and the Company's servants was who should be responsible for the carriage of these parcels. The Act of Parliament renders it imperative on the Company to carry a certain weight of passenger's luggage. The Com- pany are empowered to make regulations, and by one the Company say they will not be responsible for luggage that is not marked with their label and properly addressed. The passengers' luggage. 725 Plaintiff calls upon them to label his parcels. This they refuse to do. It is impossible not to see that the question was whether the Company, by so refusing to label, could divest themselves of the common law liability which attached to them as carriers. The Plaintiff objects to the parcels being placed in the carriage on the ground that the Company are thereby endeavouring to relieve themselves from their liability as common carriers. This was the struggle. I think the porter was not justified in taking the parcel to the lost luggage office. All Plaintiff said amounted to this, that if they put the parcel in the carriage with him they were not to construe that as a consent on his part to their not being responsible foi it. There was nothing to reheve the Company of being common carriers, and the act of their porter in taking the parcel to the lost luggage office was a wrongful act, for which they are liable, whether it be on the count in trover or on the special count for refusing to carry. These articles were wearing apparel ; the Company were liable to carry them, and they might put them in any part of the train, either in the carriage with Plaintiff or where else they pleased." Justice Williams said — " There may, no doubt, be cases where articles of this description may be so carelessly and improperly packed as reasonably to justify a refusal on the part of the Company to accept them. But it does not follow that they would be justified in rejecting every package which may be imperfectly packed." Justices Willes and Byles concurred. Verdict, £10 against the Company. — Tried in Court of- Common Pleas, May 26 and 27, 1858. — From Law Journal RepoHs, vol. 27, Xtage 308, C.P. 4-5 O. Agrell v. London and North Western Raihvay Company. — Action for £60 for value of a portmanteau lost at Victoria Station, Manchester. On 6th February, 1875, Plain- tiff, a commercial traveller, drove to the Victoria Station at 12.20 p.m. to go to Hull by the 12.45 p.m. train. A railway porter at the entrance door took the portmanteau, and Plaintiff, with a friend who was with him, walked with the porter on to the platform. The porter put down the portmanteau near the rack where the luggage labels were deposited. The porter L 726 PASSENGERS* LUGGAGE. then left, and the PlahitifF, after standing a short time with his friend by the portmanteau, and failing to obtain the services of another porter, himself took a Hull label from the rack and put it on his portmanteau. After again trying to get a porter, but without success, Plaintiff and his friend went into the refreshment room for ten or fifteen minutes, and when he returned the portmanteau was gone. Within two yards of the place where the portmanteau rested was a notice — " The Company will not be responsible for articles left at the station unless deposited in the cloak-room and a fee of 2d. paid on each article." The case was tried in the Court of Exchequer, when Chief Baron Kelly and Baron Amphlett held the Company liable, while Baron Pollock dissented. On appeal to the Exchequer Chamber, the ruling of Baron Pollock was confirmed, and Judg- ment given for the Company. The case was not reported, but the following is taken from Baron Pollock's written Judgment : — Baron Pollock said — " Under these circumstances I am of opinion that the Plaintiff's portmanteau was never in the custody of the Company as carriers. No act of negligence on part of the Company was proved, and if it was negligent of the outside porter who placed the portmanteau on the platform to leave it there unguarded, the Plaintiff was aware of this, and might have averted all risk by staying by his portmanteau until it was properly lalDelled and under the charge of a porter. The liability of the Company is that of a common carrier, and when once the luggage is delivered to the Company and received by them to be carried, this liability extends, not merely to the actual transit on the line, but to the period when the luggage is being taken to or from any vehicle by which a passenger comes to or leaves the station of arrival or departure ; and the only question in the present case is, Had the Company ever so received the portmanteau ? The Company are not liable, because Plaintiff affixed a Hull label to the portmanteau himself. No evidence was given as to the duty of the outside porter, but I think it may be fairly assumed that in the absence of any instructions his duty was to relieve Plaintiff from the burden of carrying his portmanteau into the station, and that he had performed it when he accompanied the Plaintiff and placed his portmanteau PASSENGEKS' LUGGAGE. 727 near the spot where the luggage is labelled. It cannot be con- tended that he ought to have deserted his post outside the station and kept watch over it during the ten or fifteen minutes the Plaintiff was taking his refreshment, and he could not hand it over to another porter to put in the train, because the Plaintiff had not told him what was its destination. To hold that, where nothing is said on either side, because a porter takes a portmanteau from a cab he becomes charged with it, so as to make his employers, from that moment, common carriers of it, and liable as such — although the owner of it has taken no ticket, declared no destination, promised no payment, neither given nor undertaken to give any lien, so as to create the cor- relative right of the carrier, and may have come to the station only to deposit his luggage in the left luggage office — would seem to me to be not only making a contract which was never made, but imposing upon railway companies a burden beyond what has hitherto fallen to common carriers. It is true that a very few words, or possibly a single word on either side, might have made all the difference. Had the Plaintiff, on arriving, said, 'Hull,' and the porter answered, 'All right,' and then taken the portmanteau, there would have been good grounds for contending that the porter had accepted the duty of seeing it started for Hull. Plaintiff called for an inside porter to look after the portmanteau, showing thereby that he knew it had not been delivered over for carriage. The duty of the Company as common carriers would be founded on the contract entered into between them and the Plaintiff, which would not be com- plete until the Plaintiff had taken his ticket ; but this would not, in my judgment, prevent their liability attaching at an earlier time if it could once be shown that they had accepted the portmanteau for transit now. Although Plaintiff arrived at the station twenty-five minutes before the train started, he would, I think, have been entitled to deliver over the port- manteau to a proper officer of the Company, with directions to put it in transit for Hull. The existence, however, of the cloak- room and notice have some bearing on the question, as showing, inter alia, that the delivery to the outside porter did not necessarily and exclusively create a contract to carry." — Tried in Court of Exchequer, Easter Teryn, 1875. — From Law Times Reports, vol. 34, page 134. 728 passengers' luggage. 4-51 . Leach v. South Eastern Railway Company. — Action for value of a travelling bag. Plaintiff, 28th July, 1875, drove up to Cannon Street Station at 4.30 p.m., to go to Woolwich by the 4.40 p.m. train. A railway porter said, " Where are you going ? " Plaintiff replied, " Woolwich," and gave the porter his bag. Together they walked on to the platform. The porter then put the bag down close to Plaintiff, and, calling to another porter, said, "Woolwich." Plaintiff then said, " I do not want it labelled ; I will have it in the carriage with me." The porter went away suddenly, leaving the bag on the platform. The Plaintiff then went and got his ticket, and on his coming back the bag was gone. The case was first tried in the Bloomsbury County Comi, when Plaintiff was non-suited. Plaintiff appealed, and on the appeal case Justice Grove said — "I have reluctantly come to the conclusion that there was some evidence to go to a Jury. I base my Judgment on the case of Agrell v. London and North Western Railway. There the Court of Exchequer and the Exchequer Chamber assumed that there was some evidence to go to the Jury ; but the case having been left to them to decide what was the reasonable inference to be drawn from the facts, the majority of the Judges came to the conclusion that the bailment was only a bailment to place the luggage on the platform, and not to see it into the train. In that case the Court had power to draw inferences of fact, but we have no such power in this case. In AgrelVs Case the passenger arrived a long time before the train left, and did not mention the place he was going to ; whereas here the arrival of the passenger was only shortly before the train started, and the servants of the ComjDany well understood the passenger was going by train, and told his destination, viz., Woolwich. The only fact which tells against the Plaintiff was, that when his luggage was put down beside the other baggage he said, ' I don't want it labelled ; I'll take it in the carriage with me.' That expression, to my mind, was an ambiguous one. It may mean ' You need not label it, but put it into the carriage ;' or it may mean ' I will take the custody of it myself.' I have great doubt as to whether, on seeing the porter going off without anybody being left in charge, the Plaintiff acted PASSENGEES' LUGGAGE. 729 reasonably in going away as he did. All these, however, are matters of inference, and we have no power to draw any infer- ence. I confess that if we had the same power as the Court had in AgrelVs Case, I should find for the Company. As it is, I feel bound to hold that the non-suit is wrong and must be set aside, and consequently there must be a new trial." Justice Quain concurred. Judgment against Company. — Tried in CouH of Appeal, February 19, 1876. — Frorn Laxu Times BepoHs, vol. 34, pja.ge 1 34. 452. Lovell V. London Chatham and Dover Railway Company. — Action for £40 for a despatch-box, passenger's luggage. Plaintiff, a lady, arrived in a cab with her luggage at Victoria Station, intending to catch a train for Broadstairs at 2.50 p.m. There was no train at that time, nor until 3.13 p.m., 23 minutes later. A Company's porter met the cab at the station entrance, and put the luggage ou a truck, and said if Plaintiff would get her ticket he would label the luggage, and that the ticket office would be open in two minutes. The ticket office was opened in two minutes, and Plaintiff obtained her ticket, and went on the platform to her luggage, when she found the despatch-box gone. The Company had the following notice placed in conspicuous positions about the station : — " The attention of the public is particularly requested to the risk they incur by leaving luggage, parcels, coats, and wrappers, or any other property, in the oflSces or waiting-rooms at the stations. The Company's servants are strictly forbidden to take charge of any articles, and are subject to dismissal for so doing. Any article which a passenger wishes to leave at a station should be deposited in the cloak-room, where a proper ticket will be given to the owner on payment of the usual booking fee. The directors give notice that they will not be responsible for any article left on their premises in any other manner. Passengers must see their luggage labelled, or it will not be put in the train." The case was first tried before Baron Pollock, and a verdict for £40 given, with leave to appeal to set aside the verdict or to reduce it to £25, owing to some of the contents of the despatch-box coming within the Carriers' Act. On the appeal case Justice Blackbuni said — " The question is, Had the porter received the luggage as the servant of the Company, and at the commencement of the journey ? I think that he had. I do not see how any railway company could 730 PASSENGERS* LUGGAGE. carry on its business as a carrier of passengers if this is not to be considered as the beginning of the journey. The Eailway Company have said, as they are entitled to say, that luggage is not to be deposited at their risk except in accordance with the conditions they impose, and on payment of a fee ; but they do not refer to a case of this kind, and though luggage is not to be dejjosited, it must be kept by the Company's servants while the passenger gets his ticket. It has been agreed to let £10 represent the value of the unprotected articles in the despatch- box, and the box was valued at £15. The Judgment of the Court will therefore be to reduce the verdict to £25." Justice Lush concurred. — Tried in Court of Queen^s Bench, February 7, 1876. — From Laiv Journal RepoHs, vol. 45, page 476. 45 3 • Bergheini v. Gi'eat Eastern Railivay Company. — Action for loss of a travelling bag, London to Yarmouth. Plaintiff arrived at the Shoreditch Station a considerable time before the train started. He directed a porter to put his bag on the seat of a carriage. The porter, in reply to a question, said the bag would be safe, and that he should be there himself until the train started. Plaintiff went to the refreshment room, and on his return the bag had been stolen. The case was first tried before Justice Manisty, and the Jury found (1) that the carriage was a proper place in which to put the bag; (2) that the porter was acting in the scope of his employment in putting the bag into the carriage ; (3) that the porter received the bag as the Company's servant ; (4) that no felony had been committed by the Company's servants ; (5) that neither Plaintiff nor the Company had been guilty of negUgence. The Judge, on these findings, directed Judgment for the Company. Plaintiff appealed. On the appeal case Lord Justice Cotton gave a written Judgment — " It has been found that neither the Com- pany nor the Plaintiff was guilty of negligence. The Company therefore cannot be held liable unless they are to be held to have undertaken the liability of common carriers in respect of the bag. A common carrier is answerable for the loss of the goods entrusted to him as such, though the loss be in no way caused by any default on his part. He is considered as having contracted to insure — that is to say, to carry and deliver safely passengers' luggage. 731 and securely the goods. The reason why the law implies that this is the contract of a common carrier is that the carrier and his servants during carriage have exclusive control and care of the goods ; and the law, in order to prevent frauds, imposes upon those who contract to carry goods as common carriers the obligation to undertake to insure their safety. Chief Justice Holt, in Oogga v. Bernard (Ld. Eay., 909), said — ' The law charges this person (the carrier) thus entrusted to carry goods against all events but acts of God and the enemies of the King. For though the force be ever so great, as if an irresistible multitude of people should rob him, nevertheless he is charge- able.' Carriers might have an opportunity of undoing 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 discovered. The common carrier's liability as a contract of insurance has never been implied in respect of goods over which he had not absolute control. Ai-e goods put into a carriage under the control of the Company to this extent ? They are j)ut into the carriage because they may be required during the jom'ney or because the passenger wishes to take special care of them and to have them under his eye, or because he desires to take them away with him as soon as the train stops. They are put into the carriage at the request or with the consent of the j)assenger, in order that he may have some control over them during the transit. While the train is in motion the Company can exercise no control over the goods as distinct from the control they have over the train. There may be in the same carriage with the owner of the goods other persons who, by reason of the passenger's own negligence, may be tempted or enabled to injure the goods or deprive the owner of them. The real question is whether, as regards the particular bag, there was an implied contract of insurance. We think there is no suificient ground upon which a Court can properly make a presumption that the Company carried it under a liability, or implied contract, to carry it safely at all hazards. The Company undertake to carry the passenger; they equally undertake to carry his luggage, which, with their con- sent, is placed with him in the carriage. But they are not gratuitous carriers of those goods, as they receive them into 732 passengers' luggage. their carriages in consideration of the passenger paying his fare. The Company, therefore, must, according to ordinary principles, be held liable for the loss or injury caused by their negligence in respect of the luggage as carriers for hire and contractors to carry. The Company have, in fact, the same liability with respect to the carriage of the luggage as they have with respect to the carriage of the passenger himself. We are of opinion this Court is not bound by the authorities {Butcher v. London and South Western; Richards v. London Brighton and Soidh Coast) to decide that the Company are liable if, in our opinion, the Company cannot on principle be held to have undertaken the liability of common carriers in respect of the Plaintiff's bag — that is, to have contracted to become insurers of it. For the reasons stated we are of opinion that they did not so contract, and that the Judgment in favour of the Company should be affirmed." Lord Justice Bramwell and Lord Justice Brett concurred. — Tried in Court of Appeal, November 21 and 22, 1877, and January 14, 1878. — From Law Times Reports, vol. 38, page 161. AERIVAL. Luggage Lost off Platforms at End of Journey, when' THE Question of a Legal Delivery Arises. Richards v. L. B. 4- 8. C. (1849) Butcher v. L. S[ 8. W. (1855) ... Case No. 454 455 Kent V. Midland (1874,) ... Patscheider v. G. W. (1878) Case No. 456 457 4-54-, Richards v. London Brighton and South Coast Raihvay Company. — Action for £150 for a dressing-case, con- taining articles of value, carried as passenger's luggage and lost, Woodgate to London. Mrs. Eichards, the Plaintiff's wife, was an invalid, and all her luggage was placed in the van except her dressing-case, which was placed in the carriage under her feet. On arrival at London ]\irs. Eichards was lifted into a hackney coach drawn up beside the platform, and her luggage carried by the Company's servants from the carriage to the hackney jcoach. On arrival at destination Mrs. Eichards missed the passengers' luggage. 733 dressing-case, which had never been seen in the hackney coach, and which was not found subsequently. The case was iirst tried before Chief Justice Wilde, at London Gruildhall Sittings, Trinity Term, 1848, when a verdict for £150 was found for Plain- tiff. The Company obtained a rule nisi for a non-suit or to enter a verdict for Defendants. On the appeal case Chief Justice Wilde said — " The duty of common carriers in the common coui'se 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 non-delivery. The Plaintiff has made out by evidence that the dressing-case was delivered to the Company's servants. 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 responsi- bility 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 considered 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. I think the Plaintiff proved all that was essential to entitle him to a verdict on the first count." Justice Cresswell concurred, and said — " It cannot be said that the Company fulfilled what they undertook if they did not deliver the parcel ; and if the usual course of delivery was on the other side of the platform, that would be the place at which they ought to deliver." Justice Williams concurred, and said — " It seems to me that at the time of the loss the dressing-case was in the custody of the Company as carriers. I must admit I think that before the dressing-case was lost the transit described in the declaration had come to an end. I do not mean to give an opinion whether the Company were obliged to do more than deliver the 734 PASSENGEES' LUGGAGE. luggage on the platform ; but I think if they oblige passengers by allowing their servants to carry luggage to coaches their liability continues." Judgment against the Company. — Tried in Court of Common Pleas, May 5 and 7, 1849. — From Law Journal Reports, vol. 18, page 251. 4-55. Butcher v. London and South Western Railway Company. — Action for £400 money in a carpet bag stolen at London Bridge Station. Plaintiff with his wife were passengers, Farnham to London. He took his carpet bag with him into the carriage, and a box, a second package, was put into the van. At London Bridge Station, while standing on the platform looking for his box, a Company's porter asked Plaintiff if he wanted a cab, and took from him the carpet bag, which he put on the footboard of a cab outside the station, and returned for the box. In the meantime the cab drove off, and neither carpet bag nor money could afterwards be recovered. At Kingston the Plaintiff obtained a verdict against the Com- pany for £400, the Judge giving leave to enter a non-suit if the Court should be of opinion that there vjas no evidence to go before a Jury. On the appeal case Plaintiff pleaded the Company's contract to carry him and his luggage safely, continued until the lug- gage was delivered to the passenger in his cab, and that the mere temporary possession of the luggage by the passenger on the platform did not alter the liability of the Company to complete the whole of their contract, seeing Plaintiff had not indicated he was satisfied with that as a termination of the contract. The Company contended their contract was com- pleted on delivering the Plaintiff his luggage safely at the platform ; that his luggage was then in his own possession, and he himself was looking for a cab ; and that the porter who assisted him did so as his agent, and not as a servant of the Company ; and that the Company were not responsible for the cabman's felony. The Chief Justice said the case of Richards v. Brighton Railway Company (2 Com. B. Eeports, page 839) governed this case, which established that the delivery of the passenger and luggage must be in the ordinary mode on the arrival of a train. Parties might accept something short of what was passengers' luggage. 735 fixed by the contract. Whether or no there was a perfect delivery to the Plaintiff as he stood on the platform with his carpet bag in his hand, was a question of fact for the Jury. The Company had not shown what they did with the bag. An officer of the Company took charge of the bag from the Plaintiff, and nobody knew anything more about it. The learned Judges all thought there was evidence that it was right it should go before the Jury, and that the verdict, therefore, ought to stand. Kule discharged. — Trwdheforethe Chief Justice and other Judges, May, 1855. — Law Journal RepoHs, vol. 24, page 137, C.P. 4-56. I'^ent V. Midland Raihvay Company. — Action for £84 for loss of a portmanteau and carpet bag, passenger's luggage, Bath to Chester. Plaintiff took a through ticket, and the notice on the ticket was — •' This ticket is issned subject to the regulations and conditions stated in the Company's time-tables and bills." One condition was — " The Company does not hold itself responsible for any delay, detention, or other loss or injury ■whatsoever arising off its line, or from the acts or default of other parties." The Plaintiff took no notice of this condition on the ticket, and never saw the time-tables or bills. At Birmingham the Plaintiff had to change trains ; a London and North Western Company's porter took his luggage from the Midland train to convey it to another platform for the London and North Western Company's Chester train. Plaintiff saw the porter and the luggage on the platform, but when he got to Stafford the luggage was missing, and had not been recovered. The case was first tried at the Liverpool Summer Assizes, 1874, when a verdict was entered for Plaintiff for .€84, with leave to the Company to appeal — the Appeal Court to have power to draw inferences of fact. On the appeal case Chief Justice Cockburn said — " I think our Judg- ment must be against the Company. There is nothing to show that the luggage was actually delivered into the custody of the London and North Western Company, or that it was ever carried on their line and lost on their line. The porter acted, no doubt, in the service of the London and North Western Com- pany, yet the Midland Company were entitled to his services by virtue of an agreement between the two Companies con- 736 passengers' luggage. firmed by Parliament. Under these circumstances (doubt of transference from one Company to another^, but for the 'par- ticular stipulation which has been insisted on, there could be no doubt that the Midland Company was liable for the loss. Now, in the strict sense of the words of the contract, the luggage at the time it was last seen was ' off the line ' of the ■Midland Company. But we must give the contract a reason- able intendment, and understand by ' off their line ' ' out of their custody.' The luggage when last seen was not out of the custody of the Midland Company ; they were bound to have it conveyed to the carriages of the London and North Western Company, and for that purpose they were entitled to the services of the porters of the latter Company, who must, for the occasion, be taken to be their own servants. Holding the words ' off their line ' as equivalent to ' out of their custody,' and the luggage not being shown ever to have been out of their custody at the time it was last seen, I think the Company fail to establish that the case is within the exception, and therefore they are liable for the loss." Justice Blackburn, Justice Quain, and Justice Archibald concurred. Judgment against Company. — Tried in Court of Queen^s Bench, November 2, 1874. — From Law Journal Reports, vol. 44, page 18. 4-5 V . Patscheider v. Great Western Railway Company. — Action for £30 by a lady's-maid for a lost box of passenger's luggage, INIalvern to Paddington. There were five boxes belonging to the mistress, and one belonging to the maid. On arrival at Paddington the maid saw the six boxes taken out of the van and placed on the platform ; she went for the station hotel porter, and gave directions to him to take the boxes to the hotel, but when the truck containing the other boxes arrived at the hotel her box was missing. The case was first tried before Justice Denman on May 31, 1877, when the Judge left three questions of fact to the Jury, who found (1) that there had been no delivery of the box to the Plaintiff; (2) that the box had been lost through the negHgence of the Com- pany's serv^ants ; (3) that the Plaintiff had been guilty of no negligence. Damages, £30. A rule was obtained for a new trial on the ground of misdirection, the Jury not being told what k passengers' luggage. 737 was in law sufficient to constitute delivery. On the appeal case Baron Cleasby said lie concurred with Redfield on Rail- ivays, that " ' it is the duty of a railway company, in regard to the baggage of a passenger which has reached its destination, to have the baggage ready for delivery upon the platform at the usual place of delivery until the owner, in the exercise of due diligence, can call and receive it ; and it is the owner's duty to call for and remove it within reasonable time.' I think, until the passenger has the opportunity of taking away his luggage, it remains in the custody of the Company. As to the law, I should have no hesitation in saying their throwing it out upon the platform, mixed, as it might be, with other luggage, was not a delivery or discharge of the Company's obligation. Can there be any other question than whether it was taken away before anything had taken place in the way of delivery except placing it upon the platform ? I am of opinion our Judgment should be for Plaintiff." Justice Hawkins concurred, and said — " I am clearly of opinion the Jury, upon the evidence, rightly found the box was not delivered. There clearly was never a delivery of the box to the Plaintiff. Then it is said the Plaintiff was guilty of negligence, having seen the box come out of the van, in not having kept her eye upon it to see no one took it away. I think the Jury were quite right in coming to the conclusion that she was guilty of no negligence. I quite understand, if a reasonable time elapses for a passenger to take his luggage, and he does not take it, he cannot complain and say the Eailway Company are to be responsible." Judgment against the Company. — Tried in Exchequer' Division, January 21, 1878. — From Law Times Reports, vol. 38, page 149. 738 passengers' luggage. Articles Caeried by Passengers as Luggage Held to be INIerchandise, and the Company Held not Liable for their Loss. Case No. Shepherd V. G.N. (1852) ... 458 My tton V. Mid. (I8o0) 460 Cahi/l V. L. Sf N. W. (1861) 462 Keys V. Belfast S,- B. (1861)... 459 Atkinson v. G. S. Sf W. (1861) 461 Dunn V. C. Sf H. (1862) ... 463 Ivory Handles of Knives Artists' Sketches Samples of Perfumery Watches Groceries Travellers' Patterns Attorneys' Deeds and Papers, Bank Notes Phelps v. L. SfN. IF. (1865)... 464 Eocking-horse Sheets, Blankets, and Quilts Hudstonv. Midland {ISG9) ... 465 Macroiv v. (;. ]V. (1871) ... 466 45 8 . Shepherd v. Great Northern Railway Company. — Action for £40 3s. 2d. (120 doz. ivory knife handles, £33 19s. 8d. ; carpet bag, 7s.; books, 15s.; two handkerchiefs. Is. 6d. ; loss on sale, &c., £5) for loss of articles quoted, carried as passengers luggage. Plaintiff, a cutler in Sheffield, took a third class excursion ticket for 5s., Sheffield to London and back. He purchased the knife handles in London. He returned next day by the excursion train with a carpet bag, two brown paper parcels, and a deal box. The deal box was placed in the van, and the other packages in the carriage with Plaintiff. After leaving Ketford a collision took place, and Plaintiff and his wife were hurt. After the collision Plaintiff was sent on by another train to Sheffield. On leaving the scene of collision he spoke to one of the porters about the luggage, and was told not to make himself uneasy, it would be all right. Plaintiff received the deal box, but the other articles were never restored to him. Each of the packages had upon it Plaintiff's name and address, both at Sheffield and London. The case was tried in the County Court, and a verdict given for Plaintiff, £S5 3s. 2d. The Company contended that the weight of the goods was above 5Q lbs., and that the goods lost were merchandise and not luggage. The County Court Judge held that Plaintiff's wife travelling with him entitled him to carry 1 cwt. luggage ; that the Company might have refused to carry the packages on account of their containing merchandise, but as the Company had not refused to do so they were liable on the common law liability. The Company passengers' luggage. 739 contended the goods lost were never in their custody, but that of the Plaintiff. This the Judge also overruled. The questions coming before the Court of Exchequer on appeal are (1) whether, under the circumstances proved at the trial, the Company are liable for the loss of the above articles of merchandise ; (2) whether, under the circumstances proved at the trial, the Plaintiff and his wife were jointly en- titled to carry between them 112 lbs. of luggage ; (3) whether the Company had accepted the custody of the goods, under the circumstances proved at the trial, so as to render them liable to the Plaintiff, or whether the goods were in the sole personal custody of the Plaintiff. Baron Parke decided — "There being no special contract (to the contrary), the Company were bound to caiTy the Plaintiff and his luggage, which term, according to the true modern doctrine on the subject, comprises clothing and such articles as a traveller usually carries with him for his personal convenience, perhaps even a small present or a book for the journey, but certainly not merchandise or materials bought for the puqDose of being manufactm'ed and sold for a profit. If Plaintiff had carried these articles exposed, or packed them in the shape of merchandise, that the Company might know what they were, and they had chosen to treat them as personal luggage and carry them without demanding any extra remuneration, they would have been responsible for the loss. So also upon any limit in point of weight, if the Company choose to allow a passenger to carry more they would be liable. I am of opinion the Company are not liable for the knife handles." Judgment of Court below reversed. The Company undertook to pay the £\ 3s. 6d. for the articles of personal luggage. — Tried, Trinity Term, 1852. — From Exchequer Laiu Reports, 8 Exchequer, page 30. 4-59. David Keys v. Belfast and Ballymena Railway Company and Londonderry and Coleraine Raihvay Company. — Action for £1,890 for a travelling case containing 188 gold and 10 silver watches. Plaintiff was a second class passenger by the two Companies' lines from Belfast to Londonderry on a through ticket, for which he paid 10s. He had the case in the carriage with him up to Coleraine. Between that point and Londonderry 740 passengers' luggage. the guard required the case to be removed to the van appro- priated for the carriage of luggage (the report does not state why, probably to make room for passengers). The case could not be produced at Londonderry, and Plaintiff pleaded it was stolen by the Companies' servants. The case was tried on 24th June and following days, 1857, before the Lord Chief Justice and a Special Jury, in the Common Pleas Court, Dublin. Verdict for Plaintiff. The Jury assessed the damages at £1,261. The Jm-y found (1) that the case was, in appearance and in fact, fit and proper for, and manifestly did contain merchandise ; (2) that there was no improper concealment by Plaintiff; (3) that the Companies were common carriers; (4) that the Plaintiff was required to deliver and did deliver to the guard the case and watches ; (5) that the Companies did contract ; (6) that the Companies were not guilty of gross negligence. The Companies then moved the same Court to reverse the verdict, but failed, and Judgment was finally entered against Companies for £1,510 9s. 9d., including costs. The Companies then appealed to the Court of Exchequer, and suggested error, and seven Judges heard the case. The Judges being equally divided in opinion, the Judgment of the Court below held good. The Companies appealed to the House of Lords on the 5th July, 1861, and obtained a verdict in their favour. The Lord Chancellor said — " The case might have been decided in five minutes by the application of the most ordinary amount of judicial knowledge. The Companies announced to the world they would not take merchandise as passengers' luggage, and that was well known to Plaintiff; and a passenger, if he took his merchandise with him, was bound to pay at a certain rate for it. Notwithstanding, Plaintiff took merchandise with him into the carriage, and without communication to the Companies of what he was doing. It was plain he intended to have carried as personal luggage what, in fairness, he was bound to have stated and paid for as merchandise. Plaintiff knew the Company's servants were bound to obey the rule, and he could not at all, in reason or in justice, found himself upon any liability of the Company contracted by an act done by a servant of the Company in direct contravention of the rule I passengers' luggage. 741 laid down by the Company for the guidance of its servants. There could not exist, in law or reason, any contract between Plaintiff and the Company touching those goods, whereby the Plaintiff would have a right against the Company." Lord Wensleydale said — " Now the original contract certainly was that the Plaintiff was not to pay anything for his luggage, but he was bound to pay for merchandise, and that acceptance of it by the guard would not create an alteration of that original contract with the Company." — Reported in House of Lords {Clark's) Cases, vol. 9, page 556. 4-6 O. Mytton V. Midland Railway Company. — Action for £97 16s. 6d, contents of a portmanteau, the luggage of an artist travelling between Newport, S.W., and Birmingham. The claim consisted of £26 16s. 6d. for personal articles, £30 for sketches, £16 travelling expenses, and £25, value of re- mainder of season lost. Claimant took a through ticket, and saw his luggage labelled. At Grloucester he carried his portman- teau from the South Wales platform to the Midland platform, and gave it to the guard of the Midland train. The Company pleaded (1) that the contract was made with the South Wales Company ; (2) that the paintings were within the meaning of the Carriers' Act, being above £10 in value, and Plaintiff, not having declared their value, was not entitled to recover ; (3) that the sketches were not personal luggage. Before Baron Pollock and a Special Jury, at Westminster, Plaintiff obtained a verdict for £5Q. On appeal before the full Court, the Judges unanimously decided the sketches were within the meaning of the Carriers' Act, and were not ordinary luggage. Baron Martin held that the contract was made with the South Wales Railway Company, and not with the Defendants. Seeing that the Act incoi'porating the South Wales Railway had a proviso that a passenger takes his luggage at his own risk, an action would not have succeeded against that Company. The De- fendants' Act has no such j)roviso, hence Plaintiff had taken his chance to try and recover. The principle of Muschamp v. Preston and Lancashire Railway Company applied in this case. — Tried at Westminster, June 14, 1859, before fidl Court. —From. CleariTig House Reports ; reported also in Laiu Journal Reports, vol. 28, page 385, Ex. 742 passengers' luggage. 461 . Atkinson v. Great Southern and Western Railway Company. — Action for refusing to carry, Dublin to Straffan, a hamper of groceries with Plaintiff as passenger's luggage, he offering to pay for excess weight, if any. Company contended groceries were not personal luggage as specified in their time- table. Verdict for Company. — Tried by Thomas Lefroy, Chairman Quarter Sessions, Kildare. An appeal was made. The Chief Justice confirmed the verdict, and said it did not depend upon the quantity but the kind of articles offered by passenger for carriage. — Tried before the Lord Chief Justice at Naas Spring Assizes, 1861. — From Irish Clearing House Reports. 462. Cahill V. London and North Western Railway Company. — Action for £74 13s. 4d. for a box of perfumery and traveller's patterns, carried per passenger train, Northamp- ton to London, and lost in transit. Plaintiff, a commercial traveller, took a second class ticket, and took with him a box about 3 feet long by 18 inches wide and 12 inches deep, covered with a black leather case. Across the top on each end the word " Glass " was painted in white letters about two inches long. The Company's porter at Northampton took the box on his barrow and put it into the van. The Plaintiff had not more than the usual weight allowed to passengers. The case was first tried at the Middlesex Sittings after Trinity Term, 1858, before Chief Justice Cockburn, when a verdict was found for Plaintiff for above sum and 40s., cost of suit. The Company appealed, when Chief Justice Erie gave Judgment — " I am of opinion the Company are entitled to our Judgment. The article that was lost was a package containing entirely merchandise, and not containing anything in the nature of wearing apparel or property coming within the description of personal luggage. The package having been marked ' Glass,' it is said ought to have created a suspicion on the Company's part, and led to inquiry, and because it did not do so it must be assumed the Company took the merchandise, knowing it to be such and not personal luggage. I am against the Plaintiff on this point. I am of opinion the box was carried at the risk of the Plaintiff because it contained merchandise, which the Company's rules require to be paid for as such. If the passenger prevents the passengers' luggage. 743 Company getting their just compensation, he may very well be held to have the article carried at his own risk. My Judgment is founded on the case of The Great KoHhern Railway v. Shepherd (9 Law Journal Eeports, 286, Exchequer). Plaintiff clearly cannot recover for his loss, there being, as I have said, no such contract. Justices Willes and Byles concurred. — Tried in Court of Common Pleas, April 26, ISQI,—Law Journal Reports, vol. 30, page 289. This case was taken by appeal to the Exchequer, and affirmed by Chief Justice Cockburn. — Law Journal Reports, vol. 31, page 271. 463, Dunn V. Chester and Holyhead Railtvay Company. — Action for £35 — for loss of time, expenses, and commission — for detention over ten days of a traveller's case of patterns, Manchester to Dublin. The Plaintiff, a commercial traveller, alleged he saw the case on the wharf at Holyhead, and directed a porter to put it on to the steamer. It was unaddressed, and found in lost luggage office, Chester. Company pleaded that by common law, before railways, a common carrier was only bound, in absence of a special agreement, to carry passengers' personal luggage and not merchandise, which must be paid for. By Company's special Act, 7 & 8 Vic, cap. 65, sees. 356 and 357, the quantity of personal luggage was limited. The case contained samples of carpeting and other goods. Dismissed with costs. — Tried before the Recorder of the City of Dublin, Aptril 24, 1^62.— From Irish Clearing House RepoHs. 464-. Phelps V. London and Noiih Western Railtvay Com- pany. — Action for delay to a portmanteau carried as passenger's luggage. The portmanteau belonged to an attorney who was going to attend two County Court cases, and it contained certain professional deeds and documents and some money in bank notes. The temporary loss of the portmanteau com- pelled the postponement of the trials and rendered Plaintiff's journey fruitless, whereby inconvenience and expense were entailed. On the first trial the Judge left to the Jury — (1) What damages did Plaintiff sustain on the assumption that he was entitled to carry the deeds, documents, and bank notes as part of his ordinary luggage ? (2) What damage did he 744 passengers' luggage. sustain on the assumption that he was only entitled so to carry his clothing and analogous articles ? On the first assumption the Jury returned a verdict for £44 Is., and the second £20. This was a verdict for £44 Is. Leave was given to appeal to reduce the verdict to £20. On the appeal case Chief Justice Erie said — " I am of opinion that our Judgment should be for the Company, to reduce the verdict to £20. ' I consider the loss in respect of the deeds, notes, &c., is not a loss connected with luggage for his personal use in his journey as a traveller. It is impossible to draw a definite line. These articles are entirely out of the category of passengers' personal luggage ; they were not for Plaintiff's personal use, but were taken by him in his capacity of attorney for the service of another person, and I think the Company are not to be held responsible for them." Justice Willes concurred. Justice Byles concurred, and said — "I should doubt if a man's own title deeds and securities can be called ' ordinary luggage.' " Judgment for Company, to reduce verdict to £20. — Tried in CoiiH of Common Pleas, May 26, 1865. — From Laiv Journal MeportSy vol. 34, page 259. 4-65. Hudston V. Midland Railway Company. — Action in respect to a child's rocking-horse, weighing 78 lbs. and 44 inches in length, carried as passenger's luggage, Derby to Nottingham. This case was tried in the Derby County Comt, and a verdict given for the Company, on the ground that a rocldng-horse was not ordinary passenger's luggage. An appeal was taken to the Court of Common Pleas, when Mr. Justice Lush confirmed the verdict for the Company given at the County Court. He said it was not difficult to define what was excluded by the Com- pany's rule. " The privilege does not extend to the carriage of articles of merchandise — that is, articles carried for the jDurpose of sale — nor to articles carried for hire or profit — that is to say, when the person makes a profit from the carriage of it, although the articles may be of a description falling within the meaning of the term ' personal,' or, to take the language of the statute, * ordinary luggage.' It is extremely difficult to frame a defini- tion in terms which shall embrace all that is intended to be brought within it and to exclude all that is intended to be passengers' luggage. 745 excluded. The particular article in question, I think, goes beyond the limit of personal luggage. It is an article which is called a child's toy, but you cannot properly call a thing of that description, weighing 78 lbs., a child's toy. It does not, to my mind, come under the description of a mere toy, for the word ' toy ' gives one the idea of something which can be carried in the hand. I think we must confine the description of personal luggage in the sense that I have mentioned, namely, that description of goods tuhich passengers usually carry as part of their luggage" The other Judges agreed, and the Court gave a verdict for the Company. — Tried in the Court of Queen's Bench, before Justices Lush, Hannen, and Hayes, May 20, 1869. — Laiv Journal Reports, vol, 38, page 213. 466. Macroiu v. Great Western Railway. — Action for loss of a trunk, passenger's luggage, Liveq^ool to London. The Plaintiff had returned from Canada, and amongst other articles in the trunk were six pairs sheets, six pairs blankets, and six quilts. The Company contended they were not liable for such household goods when can-ied as passengers' luggage. The case was first tried before Justice Blackburn, Middlesex Sittings after Michaelmas, 1870, when the Jury found for Plaintiff £22 8s. 6d. beyond the £39 4s. paid into Court, and that the sheets, blankets, and quilts were personal luggage, and were worth £16. The Company appealed to reduce the verdict by the £16. On the appeal case Chief Justice Cockbum said — " The articles as to which the present question arises consisted of bedding. Now, though we are far from saying that a pair of sheets, or the like, taken by a passenger for his own use on a journey might not fairly be considered as personal luggage, it appears to us that a quantity of articles of this description intended, not for the use of the traveller on the journey, but for the use of his household when permanently settled, cannot be held to be so." Verdict for Company, to reduce the previous verdict by the £16. — Tried in Court of Queen's Bench, June 7, 1871. — FromLaio Reports, Q.B., vol. 6,xjage 613 ; also reported in Law Journal Reports, vol. 40, page 300, Q.B. 74() passengers' luggage. Luggage Carried by a Passenger Travelling on AN Excursion Ticket, and Lost. Case No. Euiiisei/ V. North Eastern (1863) 467 Stewart v. L. Sf N. W. (1864) ... 468 467. Rutnsey v. North Eastern Raihvay Company. — Action for detention of Plaintiff's portmanteau. Plaintiff, a commercial traveller, took a cheap return day ticket, Scar- borough to Whitby, for 5s., the ordinary first class fare being 9s. Passengers taking the cheap tickets were not allowed to carry luggage. Plaintiff got his portmanteau into the van surreptitiously, and at Malton wished it to be sent on to York, where, probably, he was going after leaving Whitby. The portmanteau was carried to Whitby and 3s. Id. carriage de- manded, and in default of payment it was detained. Baron Martin told the Jury that the Company's Act made no dis- tinction as to excursion passengers, but gave every first class passenger the right to carry 150 lbs. of luggage, and unless the Plaintiff had made a contract to pay carriage the Company had no right to detain the portmanteau. The Jury, on this direction, gave a verdict for Plaintiff. From this decision there was an appeal, when the verdict was set on one side. Lord Chief Justice Erie, in giving Judgment, said — " I think the Company's Act allowing 150 lbs. luggage meant every jyassenger that chose to claim that right. A man may renounce a j^rivilege given by statute and may make a bargain with a company. If he renounced that right and induced the com- pany to deduct a sum for renouncing that right to take luggage, he would by no means be justified under the Act if he got deceptively and by fraud his luggage into the train. Chltty on Contracts lays it down — ' If a man, intending to get a service performed and by deception to evade payment — if he get the service performed, the law implies a promise to pay for it.'" Mr. Justice Williams said he was "unable to discover anything in the Company's Act, or anything on principle as being contrary to public policy, which prevents a bargain between a joassenger and a railway company. A passenger passengers' luggage. 747 may say, ' I will give up my right under the Act to take my personal luggage free in consideration that you reduce the fares to a lower amount,' and there was evidence for a Jury that in this case such a bargain was made. There appears evidence to go to a Jury that Plaintiff acted the part of an excursion train passenger when he took his ticket, and acted the part of a non-excursion train passenger when he delivered his luggage, and that he committed a fraud in so doing. I think the principle applicable that the fraud of the Plaintiff stood in the place of a request to carry for hire." Justices Willes and Byles agreed on the rule. — Tried, on appeal, in Court of Common Pleas (date not given), about 1863, (Laiu Times, vol. 8, page 666, quotes " Eimsey," not " Eumsey.") 4-68. Steiuart v. London and North Western Raihuay Company. — Action for £39 14s., value of a portmanteau lost between London and Liverpool. Plaintiff, in September, 1862, took a first class Marcus excursion ticket, Liverpool to London and back, for I7s. 6d. On the first half of the ticket was printed " Ticket as per bill," and on the back of each half " Forfeited if transferred. This ticket is issued subject to. the conditions contained in the Company's time and excursion bills, and if used for any other train or station the ticket will be forfeited and the full fare charged." The Company's small excursion hand-bills stated " Luggage under 60 lbs. free, at passengers' own risk." Plaintiff admitted seeing the Company's large posters, and that they gave reference to the small bills for particulars, but he denied having seen the small hand-bills with the said notice. The case was first tried at the Liverpool Borough Passage Court, April 5, 1864. The Jury found Plaintiff had not seen the small hand-bills, and the Judsfe directed a verdict for Company, with leave to appeal. Plaintiff appealed, when Chief Baron Pollock said he was of opinion that this case was not within the Traffic Act, and the Judgment must be for the Company. " There is a rule in the English law that every man must be taken to know that which he has the means of knowing, whether he has availed himself of those means or not. The Plaintiff must be supposed to have read the ticket. If he did not choose to consult the hand-bill, that 748 passengers' luggage. is his fault, not the fault of the Company. One of the condi- tions of these special trains is ' Luggage under 60 lbs. is free, but at the passenger's own risk.' If it be sent as goods to be carried in the ordinary way, under the custom of England for carriers to be liable, that is a different matter. The Plaintiff's ignorance, then, was of his own creation, and the luggage was lost in a place where he has agreed to take the risk himself. Under these circumstances the Company are not liable. I think this is not a case of carrier's liability under the common law. Richards v. London Brighton and South Coast is certainly an authority (which I was not aware of) that the luggage of a passenger is in the same condition as goods sent by a carrier ; but I am not convinced by it or disposed to defer to it, and, notwithstanding the authority of Mr. Justice Story to the same effect, I am still of opinion that a carrier under- takes no responsibility in respect of the goods of a passenger beyond that which he undertakes with respect to the passenger himself." Barons Bramwell and Pigott concurred. Judgment for Company. — Tried in the Court of Exchequer, April 19, 1864. — Law Journal Reports, vol. 33, page 199. In the case of Lewis v. Great Western Railway Company (L.T.E., vol. 37, 775), when the case of Stewart was quoted, Lord Justice Bramwell said — " That case has been solemnly con- demned in this Com-t, and executed by my brother Brett." Luggage Lost ox the Journey between England and France, or other Foreign Countries. Case No. BenettY. P. ^ 0. (1848) 469 Piandani v. L. Sp S. W. (185C) 470 Shand V. P. Sj- 0. {ISGo) 471 Zunc V. S. E. (1869) .. Cohen y. S. E. (1877).. Case No. 472 473 4-69. Benett v. Peninsular and Oriental Steamboat Company. — Action by an intended passenger, Southampton to Gibraltar, that the Peninsular and Oriental Steam Packet Company refused to allow him to take a passage owing to some communication made to them by the Portuguese Consul. The passengers' luggage. 749 Plaintiff then sued the Company for a breach of their liability as common carriers. On the first trial the Lord Chief Justice left it to the Jury to say whether or not the evidence satisfied them that the Defendants carried on the business of common carriers for hire. Verdict for Plaintiff. On the appeal case Chief Justice Wilde said — "The question is, Can a man be a ' common carrier ' of passengers from a place that is within the realm to a place out of it ? IMi-. Justice Story defines a common carrier to be a person who does just what the Defendants in this case are proved to have done. He says, section 495 — ' A common carrier has been defined to be one who undertakes for hire or reward to transport the goods of such who choose to employ him from place to place.' It is said that the evidence here did not support the third issue, because the term ' common carrier ' imports one who carries from and to places within the realm only. But if we so con- strue it we make the declaration bad and. inconsistent, whereas if we read it as meaning ' common carriers ' according to the definition given by Dr. Story, viz., as persons holding them- selves out as undertaking for hire or reward to transport the goods of such as choose to employ them from place to place, we shall be giving the allegation a sense that will make it con- sistent with the breach. I see no reason for holding that ' common carriers ' must of necessity mean persons employed to carry within the realm and according to the custom. I think the question was properly left to the Jury, and that the verdict is right." Judgment against the carrier. — Tried in Court of Common Pleas, December 6, 1848. — From Manning and Grainger's Reports, vol. 6, page 775. 4-70. Pianciani v. London and South Western Railway Company. — Action in respect of two portmanteaus, passenger's luggage? London to Jersey — delay to one portmanteau, £100; and loss of the second, which contained writings, silks, furs, and lace, £2,500. At the time of deHvery the contents and value were not declared. Plaintiff contended that the real question is whether the Carriers' Act protects the carrier when he makes a contract to 750 PASSENGEES' LUGGAGE. carry both by land and by water. It is submitted tliat the statute applies only to cases where the termini from and to which the carrier j)rofesses to carry are both inland. The statute addresses itself entirely and exclusively to carriers by land, and the carrier has no right to split the contract and say that he makes a different contract for that portion of the journey which is by water from that which is to be performed on land. (Chief Justice Jervis — " The question was raised, but not decided, in this Court in Benett v. Peninsular and 0. S.B.G., M. & G. Eep., vol. 6, page 775.") All the provisions of the Act are referable to contract for land carriage throughout the realm. (Justice Cresswell — " Would not a mail contractor or carrier between London and Dublin be within the protection of the Act ? ") >Suppose a package is delivered to the Company at Jersey, where they have no receiving-house. (Justice Cress- well — "\\Tiy should we assume that the Company have no receiving-house in Jersey ? ") Under the Carriers' Act the Company were held not liable. Judgment for Company. — Tried in Court of Common Pleas, May 6, 1856. — From Manning, Grainger, and ScoWs CoTnmon Bench Reports, vol. 18, page 226. 4-71 . Shand v. Peninsular and Oriental Steam Ship Company. — Action for the loss of a package of greatcoats, plaids, cloaks and shawls, and similar articles, well and firmly put up and bound together in one package, and legibly and properly addressed with name and destination — Southampton to Mauritius. The Plaintiff was, with his family, going to the Mauritius to take up the office of Chief Judge of the island. At Alexandria the Company's officer in charge of the baggage took possession of the package, with other baggage, and said it should meet Plaintiff at Suez. The lady's-maid saw the package at Suez on board the steam tender, but when Plaintiff I embarked on the s.s. "Noma" the package was not to be found among the other baggage, and it was never found afterwards. Plaintiff paid £315 for conveyance of himself, his wife, two children under ten, and a lady's-maid. He signed a printed ticket containing the words, " I hereby accept this ticket,! passengers' luggage. 751 subject to the conditions and regulations indorsed hereon.'* Among the regulations were — "First class passengers are allowed 336 lbs. of personal Inggage free of freight, and children (over three and under ten) and servants 168 lbs. each. The insurance of baggage can be effected on very moderate terms. The Com- pany do not hold themselves liable for damage to, or loss, or detention of passengers' luggage," The Plaintifif, in the Court of Mauritius, obtained a Judg- ment for the value of the package, whereupon the Company brought the present appeal to Her Majesty's Council. The Company contended that, having restricted their liability by means of the printed conditions, they were not liable. The Plaintiff contended that the law of the "place of jperformance and not of the -place of ^making the contract must govern the question of liability. Lord Justice Turner gave Judgment, and said — " The general rule is that the law of the country where a contract is made governs as to the nature, the obliga- tion, and the interpretation of it. This is a contract made between British subjects in England substantially for safe carriage from Southampton to Mauritius. The Court below held that the law by which the case was to be tried was the French law, which prevails generally at ^Mauritius, and that by that law the Company were liable. Their Lordships have, on the whole case, arrived at the conclusion that the Company are not liable, and that the Judgment below cannot be sup- ported. The Company have framed and issued a contract into which they have introduced for their own protection a stipulation professing in its terms to limit the liability which, according to the English law, the contract would otherwise have cast upon them. WTien they tendered this contract to the Plaintiff and required his signature to it, what must it be presumed that he understood to be their intention as to this stipulation ? What would any reasonable man have understood that they intended ? Was it to secure to themselves some real protec- tion against responsibility for accidental losses of luggage, and for damage to it, or to stipulate for something to which, how- ever clearly expressed, the law would allow no validity ? The case depends on the common law ; it is not within either the Carriers' Act of 11 Cfeo. IV. and 1 Will. IV., cap. G8, or the 752 passengers' luggage. Eailway and Canal Act, 17 & 18 Vic, cap. 31. It seems now incontestible that at common law it is open to carriers (railway companies, query ?) to limit their common law liability by special agreement with the senders of goods, and this, according to some decisions, even to the extent of relieving themselves from the consequences of their own negligence. The contract here is that the Company shall not be responsible • for damage, or loss, or detention of passengers' luggage ; ' and the question is, What is the meaning to be given to the word ' loss ' ? Nothing can be more general than the words used by the parties. They do not enter into any distinctions as to how the damage, loss, or detention may have been occasioned — whether by pure accident, or through the negligence or even misconduct of the Company. But the facts of this case make it U7inecessary to consider whether, reasonably understood, they express an intention to protect the Company against answering for gross negligence or positive misconduct. Their Lordships consider the circumstance that the Company's officer insisted on having the keeping of the package, and refused it to Plaintiffs servant, raises no inference against the Company. Their Lordships have no doubt, on the whole, that the loss in this case falls within the true meaning of the stipulation, and that the Company are thereby protected from being answerable for it. They will therefore humbly recommend to Her Majesty that the Judgment below be reversed, with the costs in the Court below and of this aj^peal. Judgment for Company. — Tried before the Judicial Committee of the Privy Council, Jidy 20, 1865. — From Law Times Rejoorts, vol. 12, -page 809. 4-72. Zunc V. South Eastern Railway Company. — Action for £93 14s. 6d. for a portmanteau belonging to Plaintiff, a 'I through-booked first class passenger, London to Paris. It ap- peared the portmanteau was lost on the Great North of France j Railway, between Calais and Paris. The ticket was in three coupons — (1) London to Dover, (2) Dover to Calais, (3) Calais to Paris. On the ticket was printed— "The South Eastern Company is not responsible for loss or detention of, or injtiry to, luggage of the passenger travelling hj this through ticket, except while the passenger is travelling hj the South Eastern Company's trains or boats, and passengers' luggage. 753 in this latter case only when the passenger complies with the bye-laws and regu- lations of the Company, and in no case for luggage of greater value than £6," &c The portmanteau being over the allowed weight, 3s. excess was paid. The case was tried before Chief Justice Cockburn, London After Sittings, Hilary Term, 1868. The Jury found a verdict for Plaintiff for £93 14s. 6d., leave of appeal being given. On the appeal, Chief Justice Cockburn gave Judgment, and said — " I am strongly disposed to think there was a con- tract for the through journey. However harsh it may appear in practice to hold a man liable by the terms and conditions — which may be inserted in some small print — upon the ticket, which he only gets at the last moment, after he has paid his money, and when, nine times out of ten, he is hustled out of the place at which he stands to get his ticket by the next comer, still we are bound, on the authorities, to hold that when a man takes a ticket with conditions on it he must be presumed to know the contents of it, and must be bound by them. Nothing can be plainer than that the Company have placed upon the contract a clear restriction that they will not be responsible for loss or for injury to passengers' luggage except while the pas- senger is travelHng by their own train or boat. Unless there is something in law to prevent the Company annexing that condition to the contract, Plaintiff is out of Court. By the general law there is nothing to prevent a railway company put- ing such a limitation on a contract. It is contended the Railway and Canal TraflSc Act, 1854, prohibits them from so doing. I am clearly of opinion it does not. Section 2 enacts — 'Every railway company shall, according to their respective 'powers^ &c. The general provision is that ' whenever the company is working its own line, or any line which it has ob- tained power to work,' &c. Duties are imposed upon railway companies by the Act, but those duties are limited to their own lines. If they contract to carry beyond their own lines the whole matter is open and at large. It may be in the case of contracts, London to the north of Scotland, where several lines are passed over, that the company may impose restrictions on their liability beyond their own line." Justices Mellor, Lush, and Hayes concurred. Judgment for Company. — Tried in the Court of QueeiCs Bench, Trinity Term, 1869. — Law Reports, Queen's Bench, vol. 4, page 439. 48 754 passengers' luggage. 4-7 3 . Cohen v. South Eastern Railway Company. — Action for £73 Is. for a trunk of passenger's luggage, contents being damaged, from the trunk through carelessness (negligence) having been allowed to fall into the harbour at Folkestone during unloading from steamer to railway. In April, 1875, Plaintiff's wife took a coupon ticket at Boulogne for London. On the ticket was the following notice : — " The South Eastern Company is not responsible for loss or detention of, or injury to, luggage of the passenger travelling by this through ticket, except while the passenger is travelling by the South Eastern Railway Company's trains or boats, and in this latter case only when the passenger complies with the bye-laws and regulations of the Company, and in no case for luggage of greater value than £6." The case was brought before Baron Pollock, March 14, 1876, who seemed to be in doubt whether, as the contract was made in France, the case should be tried by French or English law. He made an order for the case to be drawn up and submitted to a Monsieur Roncier, a French avocat, and for it, with this opinion, to be submitted to the Exchequer Division of the High Court of Justice. M. Roncier gave the following opinion: — " 1. According to the French law, and under the circum- stances mentioned, the Company is responsible for the injuries which have happened by their neglect and default to the Plaintiff's box. The condition of non-liability printed on the ticket delivered cannot in any way relieve the Company of the responsibility resting on them. The French law does not any more recognise such a preliminary stipulation of non-liability than it does an arbitrary limitation of the sum to be paid in case of loss or of injury to the goods or articles entrusted to the Company. " 2. According to the French law, all contracts being sub- servient to the law of the place where they have been consented to, and the present contract having taken place at Boulogne, the case, if submitted to a French Tribunal, would be judged, irrespective of foreign law, according to the legislation of France, and the responsibility of the Company would be fully recog- nised." In the Court of Appeal Lord Justice Mellish gave Judgment, and said — " I am of opinion that the Judgment for Plaintiff PASSENGEES' LUGGAGE. 755 ought to be affirmed. There was a condition on the ticket limiting the Company's liability by declaring that they would not be liable for luggage above a certain value. It was a clear case of loss by carelessness. The first point is what law ought to govern the decision of this case. It has been proved by a French advocate that, according to French law, carriers cannot protect themselves by conditions from the consequences of their own negligence ; and therefore, if the law of France governs the case, the Plaintiff is entitled to succeed. The contract being for carriage to England, I should think that the law of England should govern the case. Parliament has passed Acts relating to through traffic, and inserted clauses for the protection of passengers, and I should think the companies could not escape from the provisions of those clauses by making their contracts with passengers in foreign countries. Does section 7 of Eailway and Canal Act apply to passengers' luggage ? — viz. : Railway companies ' shall be liable for the loss of, or for any injury done 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, notwith- standing any notice, condition, or declaration made and given by such Company contrary thereto, or in anywise limiting such liability.' Such notices, &c., are declared null and void. It seems to me passengers' luggage distinctly comes within the words of this section. The Regulation of Railways Act, 1868 (31 & 32 Vic, cap. 119), section 10, incorporates section 7 of the Railway and Canal Act so as to apply its provisions to carriage by steamer. By the last clause of section 1 6 of Act of 1868, it says — 'The provisions of the Railway and Canal Act, 1854, so far as the same are applicable, shall extend to steam vessels and to the traffic carried thereby.' It has been said, because these words do not form a distinct section, they do not apply to this case ; but there is no such rule of con- struction. It was foreseen that injustice might be done to the companies if all the conditions applying to common carriers by land were imposed on them in relation to carriage by sea, and therefore it is expressly provided in section 14 that by putting up a notice in the booking-office and printing the condition on the freight note the Company can protect themselves with 756 passengers' luggage. regard to the carriage by sea by conditions like those con- tained in a bill of lading. Then why should they not be subject to the same rules as to restricting their liability as those imposed by the Legislature in relation to carriage by land?" Justices Baggallay and Brett concurred. Verdict against Company. — Tried at the Court of Appeal, Westminster , January 22 and February 9, 1877. — From Law Times Re- ports, vol. 36, page 130. (Had the notice on the ticket contained a proviso that luggage of over £6 in value should be declared as over £6 in value, and an increased charge paid, the verdict might have been dififerent, in spite of the legal negligence.) Case Case No. No. 3) ... 474 Hooper v. L. & N. W. (1880) . .. 475 456 Luggage Lost at Junctions and Joint Stations during Transference from one Company to another Company. Midlomd v. Bromley (1856) Kent V. Midland (1874) 4-74-. Midland Railway Company v. Bromley. — Action for £27 16s. for a portmanteau, passenger's luggage, lost. Plaintiff was a passenger, Gloucester to Bristol, and from Bristol he was going forward to Torquay by Bristol and Exeter Eailway. The stations at Bristol of the Midland Railway and Bristol and Exeter Eailway adjoin, and the luggage is wheeled on trucks from one station to the other. Plaintiff saw his portmanteau put on the truck, and saw the truck pass into the Bristol and Exeter Station, but he never saw his portmanteau afterwards. The case was first tried in the County Court, when the Judge decided that there had been no delivery of the portmanteau, either to the Plaintiff or the Bristol and Exeter Company, and gave a verdict for Plaintiff for amount claimed. The Company appealed, and on the appeal case Justice Crowder said — " The onus lay on the Plaintiff of giving some evidence of non-delivery of the portmanteau at the Bristol and Exeter Station. I do not find any such evidence. Had passengers' luggage. 757 the Plaintiff observed that the portmanteau was not on the truck (at Bristol and Exeter Station), it might have been left to the Jury that it was not on the truck ; but the only evidence is that the Plaintiff did not see it on the truck. The evidence, therefore, is equally consistent with the supposition in favour of the Defendants' case as the Plaintiff's." Justice Cresswell said — " I think that this case falls within the principle laid down by Justice Coleridge in the case of GilhaH v. Dale. The Plaintiff gives no evidence from which a Jury could determine on which of the two railways the portmanteau was lost or stolen. I therefore think the decision below wrong." Judg- ment for Company. — Tried in the Court of Common Pleas, January 23, 1856. — From Law Journal Reports, vol. 25, page 94. 4-75. JJooper V. London and NoHh Western Railway Company. — Action for £\5 15s., value of a portmanteau, passenger's luggage, lost in transit, Stourbridge (Grreat Western) to Euston (London and North Western). A person travelling with Plaintiff proved that after leaving the Great Western train at Birmingham he saw the portmanteau put into the luggage van of the London and North Western train at Birmingham. The portmanteau could not be found at Euston, and did not turn up until three months after, and then very much damaged and contents destroyed. The London and North Western Company, who were sued, contended they were not the contracting company. The case was first tried in the County Court, and a verdict given for the Company as not being the contracting company. Plaintiff appealed to the Court of Common Pleas, when Justice Denman said — " I think we must take it that the case of Foulkes v. Metropolitan District Railway Company has overruled the case of Mytton V. Midland Railway Company, but it would have been cer- tainly more satisfactory if Mytton's Case had been cited at the trial of Foulkes' Case and expressly overruled. The Company did undertake a duty they neglected ; that is, they did not take reasonable care of the portmanteau. The County Court Judge decided on the ground that there was no contract between Plaintiff and the Company, but we need not go into I 758 passengers' luggage. the question of contract. The action was founded on negli- gence, and the point of law on which the Judge acted is not to prevail." Justice Lindley concurred. Judgment against Company. (See Foulkes' Case.) — Tried in Court of Common Pleas, December 2, 1880. — FroTn Laiu Times Reports, vol. 43, page 570. In respect to the Eight of Suing for Lost Luggage belonging to a servant when his master travelled WITH HIM AND PaID HIS (SeRVANT's) FaRE. Case I Case No. No. Marshall y. Y. N. ^ B. [1851) 476 I ^ec^er v. G. ^. (1870) 477 4-7 6 . Marshall v. York Newcastle and Berwick Railway Co. — Action for £30 for a lost portmanteau belonging to Plaintiff, a servant of Lord Adolphus Vane, travelling with his master, Darlington to London. It was admitted the master paid for the servant's ticket, and the point raised was that Plaintiff, not having paid his own fare, had no legal ground to recover. The declaration ran — " For reward to the Defendants in that behalf." The case was first tried at the Middlesex Sittings after Trinity Term, 1851, when Lord Chief Justice Jervis directed a non- suit, giving leave to appeal. The case was taken to appeal at the Common Pleas, when the same Judge delivered Judgment — •' I am of opinion the Court should set aside the non-suit, and enter a verdict for Plaintiff for £30. It was admitted if Plaintiff, instead of losing his property, had broken his leg, he could have had an action for his personal suffering, and his master might have sued for the loss of his service. But in what respect could he have an action for his personal suffering ? Not because there was a contract between him and the Company, but by reason of a duty irrespective of the contract. In that view, if the Plaintiff could recover for his personal suffering, the same admission would apply to the loss of his property. The duty to carry the luggage was the same as the duty to carry the person of the Plaintiff. 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 passengers' luggage. 759 throwing it overboard. There may still be a duty imposed upon them to carry safely notwithstanding they are not insurers. The money for the ticket was paid for him and on his behalf." Justice "Williams concurred. Verdict for Plaintiff. — Tried at Court of Common Pleas, November 15, 1851. — Law Journal RejpoHs, vol. 21, page 34, C.P. 4-7 7 . Becker v. Great Eastern Railway Company. — Action for value of a portmanteau and contents lost during transit per passenger train. PlaintiflF, with several other gentlemen, had gone to Newmarket for the races, and had taken a man-servant to attend upon them in common. Plaintiff had given the servant a sovereign for his attention. The servant, proceeding by an earlier train from Newmarket for London, had taken with him the portmanteau. The Company denied liability to Plain- tiff, as they made no contract with him for the carriage of the portmanteau. Justice Mellor said — "We are satisfied this action cannot be maintained. There can be no doubt the port- manteau was received by the Company as the luggage of the servant, and that he was regarded by them as an ordinary pas- senger. It is unnecessary to say that the case where a man says ' This is not my luggage, but my master's,' may give rise to different considerations. But here there was nothing of the kind. The person with whom they legally contracted was the servant, and the only duty imposed upon them is that which is founded on their contract with him." Justice Lush concurred. Judgment for Company. — Tried in Court of Queen's Bench, February 11, 1870. — From Laiu Journal Reports, vol. 39, page 122. Articles Found in a Eailway Carriage belong to the Finder in the absence of the Eightful Owner Claim- ing them. Case No. Great Western x. Emanuel (1866) 478 4-78. The Great Western and Metropolitan Railway Companies v. Emanuel. — Action for £50 damages for detention of a purse found in a railway carriage, and containing one penny. Mr. Joel Emanuel, a law student, travelling on the 760 passengers' luggage. Plaintiffs' line, found a purse which had been dropped by some unknown passenger on the floor of a second class carriage. He gave notice of the finding at the station, and his name and address, where the owner might have it on application, but he refused to give up the purse, claiming a right to detain it as being the finder. The Company sought to recover it. The Judge said the important question was whether a purse conveyed about the person of a traveller was such luggage accompanying him on his journey as would render the Company bailees by a constructive delivery, and, if so, give them the right to recover it out of the possession of a third party having found it in one of their carriages. He was of opinion there was a wide distinction between articles kept by the traveller exclusively about his own person and never intended to be deposited in the Company's carriages or entrusted in any way to their care, as, for example, a gold watch or a purse containing money. The Railway Company could in nowise be considered as bailees by a constructive delivery of the purse. If that were so, the question would be who had a right to its possession. Clearly, by all the authorities, the finder had the right of property in the thing found against everyone but the lawful owner. Mr. Emanuel had a right to the purse although found upon the floor of a carriage belonging to the Railway Company,, for it was never under their protection before it was lost. " I may add that, if it is thought desirable, I should suggest that an Act might easily be introduced making the provisions of the Hackney Carriage Act, as regards the finding of valuable property in the carriages or upon the premises of railway companies, applicable throughout the kingdom." Judgment against the Company. — Tried in Marylehone County Courts before Sir J. Eardley-Wilmot, February 6, 1866. — Laiv Times, vol. 41, page 227. Articles of Luggage Lost or Stolen out of CARRLiGES. Case No. Le Conteurv. L. ^- g. W. (1865) 479 Talley V. G. W. {1870) 480 Casa No. Leach V. S. E. (1876) 451 Bergheim v. G. E. (1878) 45$ A-V 9 . Le Conteur v. London and South Western Railway Company. — Action for £25 for a nautical chronometer belonging passengers' luggage. 761 to Plaintiflf, a master mariner, and stolen from the Company's carriage at Southampton Station. Plaintiff was travelling on a return ticket, London to Jersey and back. On the return journey, at the Southampton Station, he went to a carriage with one of the porters, who put the chronometer inside on the seat, and then both of them left the carriage to look after the rest of Plaintiffs luggage. They were absent fifteen minutes, and on their return the chronometer was gone, ^nd never since had been heard of. Plaintiff contended that the chronometer was in the custody of the Company though placed in the carriage in which the Plaintiff was about to travel, and that the Carriers' Act, 11 Greo. IV. and 1 Will. IV., cap. 68, sec. 1, relating to the declaration of clocks or timepieces over £10 value, did not apply to a contract which was not for carriage by land alone, but carriage by sea and land. The Company contended that the article being over £10 in value, and not having been declared, they were protected by the Carriers' Act. Chief Justice Cockbum said — " There may be circumstances in which a pas- senger who has luggage, which by the terms of their contract the Company are bound to convey to the place of his destination, may release the Company from their obligation as carriers for its safe custody by thus taking it into his own personal custody and charge. But the circumstances must be such as clearly to bring the case within that principle. It is not because the article is by the common consent of the passenger and Company placed in a carriage along with the passenger that therefore the Company are to be reKeved from their obligation as carriers for safe custody. I am satisfied the chronometer was not withdrawn from the Company's custody, for all that took place was that, by the desire of the Plaintiff, the porter placed it in the railway carriage. The defence was rested on the Carriers' Act, and it was not seriously disputed that this was an article which came within the Act as a 'timepiece.' But it was urged that the contract was one which came within the Act, because it was a contract for conveyance by sea as well as by land, and that it was an entire contract, and so not divisible. That argument, however, fails, both on principle and authority. The question has been decided in favour of the Company by the Court of Common Pleas in the case of 762 passengers' luggage. Pianciani v. L. & S. W. Raihuay (18 C.B., 226), in which case the Court expressed a strong opinion that the contract in such a case as this was divisible, and that, as far as regarded the conveyance in this country, it would afford the Company a protection. I entirely concur in the view there taken. Both upon principle and upon authority, therefore, I think that the Company is entitled to the protection of the Carriers' Act, and therefore that upon this ground oiu: Judgment should be for the Com- pany." Justices Mellor and Shee concurred. Justice Lush also concurred, and said — " The porter was there for the purpose of assisting the passengers and to receive the luggage which the Company had contracted to carry. They might have said that it was not such an article of luggage, or that they could not take charge of it in that way. But it is well known that it is every day's practice for passengers to carry packages with them in the carriages, and it cannot be said that in such a case the article is not under the care of the Company." Judgment for Company. — Tried in the Court of Queen'' s Bench, November 14, 1865. — From Laiv Times Reports, vol. 13, -page 325. 480. T alley v. Great Westexn Railway Company. — Action for articles missing from a portmanteau, Swindon to London. Plaintiff was travelling from Cheltenham to London, and had the portmanteau in the carriage with him. He left the train at Swindon for refreshments, and got into another carriage, in which he comj)leted the journey. Some persons unknown robbed the portmanteau between Swindon and London. The Jury negatived any negligence on part of Com- pany's servants, and found that Plaintiff by his negligence contributed to his loss. The Judge, notwithstanding, ordered the verdict to be entered for the Plaintiff, with leave for the Company to appeal. It was not clearly made out what caused Plaintiff to get into a different carriage at Swindon. -^Tried before Sir John Eardley Eardley-Wilmot and a Jury, Mary- lebone County Court of Middlesex, October 5, 1869. — Appeal heard. Court of Cornmon Pleas, before three Judges, June 23, 1870. — Judgment given November 11, 1870. The Court held that the Company's liability as common carriers had been limited by Plaintiff taking the luggage into the carriage in passengers' luggage. 763 his own charge, and hence subjecting himself to the condition that he should take reasonable care and not by his negligence contribute to the loss. The Court held he had done other- wise, and hence the Company were not liable, and they reversed the decision of the Court below. — Reported in Law Journal Reports, vol. 40, page 9, Common Pleas. 7C4 ARREST OF PERSONS, ASSAULTS, ETC. SuPERmTENDING OFFICER OR AgENT OF THE COMPANY CAN Bestd the Company, having a General Agency to Act FOR the Company. Giles V. Taff Vale (1853) Case No. 211 DIGEST. In Giles V. Taff Vale (i8o3), on the question of authority to bind the Company, the Court held unanimously that it is the duty of a Company carrying on trade to have on the spot an officer with authority to do for the Company all that in the ordinary exigencies of their business might require to be done promptly ; that in this respect there was no difference between an ordinary partnership and a corporation ; that there was sufficient evidence that Fisher (general manager) had authority to this extent from the Com- pany, and that it was not necessary to show any authority under seal. GENERAL. Case No. Railway Clauses, 8 Vic, cap. 20, «ec. 104 — Mitchell y. Crassweller {X^bZ) ... 481 Lygo V. Newhold (1854) Collier V. D. W. # W. (1873) Case No. 482 483 Hallway Clauses Act (1845), 8 Vic, cap. 20, sec. 104. — "If any person be cliFCOvered 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 constables, jailers, 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." AEREST OF PERSONS, ASSAULTS, ETC. 765 In Mitchell v. Crassweller (1853) Defendant's man, di'iving his master's cart, ran over Plaintiff and his wife in the street. The driver at this time was not driving the horse and cart in his master's business, but for his own pleasure ; hence his master was held not liable for the consequences of his man's act. In Lygo v. Newbold (1854) the Defendant was a carrier, and undertook to remove some household furniture for Plaintiff. She (Plaintiff) asked leave of the carrier's man to ride on the cart Avith the furniture. She did so ride, and the cart broke down, and Plaintiff's leg was broken. The carrier was held not liable. In Collier v. Dublin Wicklow and Wexford (1873) Plain- tiff's wife arrived at Booterstown Station seven minutes before the arrival of the last train at night. A porter opened a carriage door, but, it being a smoking com- partment, she refused to enter, and the train went on without her. She would not leave the station, and the station-master, having to secure the station for the night, locked her up all night. It aj^peared Plaintiff was from home the particular night, so the Court held that he had suffered no deprivation of her services, and that damages could not be recovered. 4-81 . Mitchell V. Crassiueller. — Action for damages for a conveyance running over a man and his wife. The action was against Crassweller, and his man was driving the cart. The master was held not liable. It appeared Crassweller's carman, having finished the business of the day, returned to his master's shop with the horse and cart and obtained the key of the stable, which was close at hand; but instead of going there at once and putting up the horse, as it was his duty to do, he, without his master's knowledge and consent, drove a fellow- workman to Euston Square, and on his way back the accident occurred. Held — That inasmuch as the carman was not at the time of the accident engaged in the business of his masters, they were not responsible for the consequences of his un- authorised act. — To'ied in Court of Common Pleas, January 27, 1853. — From Scott's Common Bench Repoi^ts, vol. 13, page 237. 766 ARKEST OF PERSONS, ASSAULTS, ETC. 4-82. Lygo V. Newbold. — Action for fractured leg, and injury to extent of 35s. to househol 1 furniture. Plaintiff (a woman) engaged the carrier to remove some household fur- nitm-e. She asked the carrier's man who came with the cart permission to ride on the cart with the furniture, to which he assented. The cart broke down, and injury to the Plaintifi" and the furniture occurred. On the first trial the Lord Chief Baron was of opinion that although the Defendant might be responsible for the loss sustained for the damage to her furni- ture, he was not liable for the personal injury. Verdict for 35s., and leave to appeal as to the personal injury. On the appeal case Chief Baron Pollock said — " On the present occasion the Plaintiff brought this accident wholly upon herself. She was of full age, and she got up into the Defendant's cart without any right to do so. She ought to have known that she had no authority to do that, and she must therefore take all the consequences of her own culpable conduct." Judg- ment for carrier. — Tried in Court of Exchequer, January 13, 1854. — From, Welsby, Hurlstone, and Gordon's Exchequer Reports, vol, 9, page 302. 4-83. Collier v. Dublin Wicklow and Wexford Railway. — Action for arrest. Plaintiff's wife took a return ticket from Lansdowne Eoad to Booterstown. She was at Booterstown Station for the purpose of returning to Lansdowne Eoad seven minutes before the arrival of the last train. A porter oj)ened one of the carriage doors for her, but when she found it was a smoking compartment she refused to enter, and the train went on without her. She was not prevented from leaving the station, but upon her refusing to leave it she was locked up for the night. It appeared that she had sustained no serious injury, and that her husband had been absent from home on the night in question. On the first trial the Chief Justice told the Jury that they could only give damages for loss sustained by the husband. The Jury gave a verdict for £50. On the appeal case the Court held that it was a case for nominal damages. " The female Plaintiff did not take a cab, neither did she require a doctor, nor has there been any injuries sustained by the husband. There does not appear to have been AEREST OF PERSONS, ASSAULTS, ETC. 767 any deprivation of services, as the Plaintiff was not at home that night. He cannot, therefore, recover damages for the exclusion of the wife from the house that night." Verdict reduced to nominal damages. — Tried in the Court of Common Pleas (Ireland), November 18, 1873. — From Irish Reports, Common Laiv, vol. 8, page 21. Kailway Companies are Liable for the Acts of their Servants if the Act is est Execution of the Authority GIVEN BY the Co^IPANY, OR AVITHIN THE ScOPE OF THE Servant's E^iployment. Chilton V. L. ^ C. (1847) Sharrod v. L. Sf N. W. (1849) ... Eastern Counties v. Broom (1851) Roev. B.L. 4- C.J. (I80I) Tollemache v. L. Sf H. W. (1856) Goff V. Great Northern (1861 ) ... Seymour v. Greenwood (1861) ... Barry v. M. G. W. (1865) Case No. 484 711 497 502 485 487 486 488 Poidton V. L. Sf. S. W. (1867) ... Edivards v. L. ^ N. W. (1870) ... Allen v.L. ^ S. TF. (1870) Vam, Ben Eynde v. TJlster (1871) Bayley v. M. S. iday and to return on Saturday or the following Monday, but not available on Sunday. The Company posted notices that the tickets were not available on Sundays. Plaintiff, who probably returned to Perth on Saturday night, took his seat at Perth on Sunday morning in the mail train going northwards. This train did not go to Aberfeldy, but it stopped at Ballinluig, and Ballinluig is the junction for Aberfeldy, which is on a small branch line. On the examination of tickets at Perth Plaintifif produced the half return ticket, Perth to Aberfeldy. The ticket was marked " Saturday fare." Plaintifif was told he could not travel on that ticket, as it was not available and the train did not go to Aberfeldy. Plaintifif insisted upon going to Ballinluig in the train. He would neither pay the fare nor leave the carriage, but gave his name and address. However, two ticket collectors and two porters ejected him with the least possible force from the carriage. He then took a post-chaise to Aberfeldy, and sued the Company. He first sued in the Court of the Sheriff Substitute on 18th October, 1877, when the Judgment was for the Company. Plaintiff then appealed to the Court of the Sherifif, and obtained a Judgment for £21 damages. The Company then appealed to the Court of Session, when Lord Ormidale said — " The publication made 794 AKREST OF PERSONS, ASSAULTS, ETC. by tlie Company of their regulations as to the special return tickets was, in my opinion, all that was necessary. I must therefore hold that the Plaintiff had all the notice of the regulations he was entitled to or that it was incumbent upon the Company to give him, and that he must just take the consequences of an infx'action or attempted infraction of them. He was made aware at Perth by the Company's servants, in the most unmistakable manner, that his ticket did not entitle him to travel to Ballinluig by the train in which he had taken his seat. If the Plaintiff had no right (as I hold he had not), or, in other words, was not entitled in virtue of his ticket to travel by the train from Perth to Ballinluig, the Company had a clear and undoubted right to insist on his leaving the carriage before the train started, and his refusal to do so occasioned such ' a hindrance to the Company in the use of the railway ' as entitled them in terms not merely of a bye-law or regulation, but of the statute itself (sec. 102, Eailway Clauses Act — Scotland), 'summarily to interfere' 'to remove such hindrance.' I can therefore see no good reason to doubt but that the course which was followed was the right one, and that the Company's servants at Perth had no alternative but to enforce, as they did, the regulations of the Company, and with great propriety and moderation, keeping in view that they were set at defiance by Plaintiff. Lord Gifford concurred, and said : — " Every courtesy was observed towards Sir Kobert. The guard offered to procure a ticket for him, without even troubling him to rise from his seat, but he would listen to no such proposal. He claimed his absolute right to travel on the return ticket which he had presented, and, rather than pay three shillings under protest, he preferred to be ejected from the train. It was his part, as the man of education and position, not to insist upon putting a subordinate in what might be a false or unpleasant position with his employers. It was his part, far more than that of the railway porters, to yield for the time, even if he was right. Questions as to rights under return tickets do not depend upon express enactment of statute, provided the maximum fares allowed to be exacted by a railway company are not exceeded. I am not aware of any rule — certainly none was ARREST OF PERSONS, ASSAULTS, ETC. 795 quoted — compelling this Eailway Company, or any other Eailway Company, to issue return tickets at all, or prescribing what shall be the rights of passengers under such tickets. I think it quite clear that the Eailway Company may attach to return tickets any legal and reasonable condition. If, in the present case. Sir Eobert's return ticket had on it the words 'Not available on Sundays,' as is the case with similar tickets now issued, I think this would have excluded all question. I think everyone who buys a return ticket, or, indeed, any kind of ticket, is bound to satisfy himself of the conditions on which it is issued. A wrong ticket for a different journey is not a ticket at all, any more than an expired ticket would be, or a ticket for a different railway. It can make no difference to the question that Sir Eobert was known to the railway porters or officials. There is not one law for a person whose name and position is known, and another for a person who happens to be an entire stranger from distant parts. The Raihuay Company Tiiight have shunted the carriage off and left it behind, trans- ferring any other passengers to other parts of the train." Lord Justice Clerk also concurred. Judgment for Company, with all costs. — Tried in CouH of Session, Second, Division, June 8, 1878. — From Scottish Laiu Reporter, vol. 15, page 608. Where a Company's Servant Exceeds his Authority, the Company are not Held Bound by his Acts. Case No. Roe V. B. L. ^ C. J. (1851) ... 502 Lumsden v. L. S( S. W. (1867)... 503 Poulton V. L. S)- S. W. (1867) ... 504 Allen T. L. ^ S. W. (1870) Edwards v. L. af- S. W. (1870) .. Cass No. 505 506 DIGEST. In Boe V. Birkenhead Lancashire and Cheshire Junc- tion (1851) Chief Baron Pollock — "The principle appli- cable to master and servant is that the master is not liable for the tortious act of the servant, unless he has either given him express directions or an implied authority to do the act. There might be some evidence 79 G ARREST OF PERSONS, ASSAULTS, ETC. of Phillips being the servant of the Company, but there is no evidence of authority given him to arrest the Plaintiff, and probably the whole was a blunder on his part, and altogether unsanctioned by the Company." In Poulton V. London and South Western (1867) a station- master arrested a groom with a horse for half an hour. Justice Blackburn said — "We do not think it is within the scope of his authority in what he was authorised to do so to bind the Company. It was an act out of the scope of his authority, and for which the Company would be no more responsible than if he (station-master) had committed an assault or done any other act which the Company never authorised him to do." In Lumsden v. London and South Western (1867) Plain- tiff was waiting for a train at Clapham Junction, and had a friendly sparring match with the railway police- man. The policeman got the worst of it, lost his temper, and gave Plaintiff into custody for obstructing him in his duty and assaulting him. The Magistrates dismissed the assault case, and Baron Bramwell held the Company were not liable for the act of their policeman as to the arrest. In Edwards v. London and North Western (i870) Holmes, a foreman porter, saw Plaintiff, a Company's policeman, removing boards from the Canada Dock Station, and, thinking he was stealing them, gave Plaintiff into custody. The Magistrates discharged the Plaintiff", and shortly after the Company dismissed him. On the first trial the Jury gave Plaintiff £100 damages for false arrest. On the appeal Justice Keating gave Judgment for Company, as Holmes was not acting within the scope of his authority. In Allen v. London and South Western (1870) a booking clerk gave Plaintiff' in change a two sous coin for a penny. Plaintiff' refused it, and the clerk declined to change it, so Plaintiff reached over the counter and attempted to put his hand into the bowl of the till containing copper coins. He was given in charge and locked up in a police station all night. The Magis- ARREST OF PERSONS, ASSAULTS, ETC. 797 trates dismissed the case. On the final appeal Justice Blackburn held — " It is quite clear that there was no evidence of an express authority by the Company to arrest Plaintiff." Judgment for Company. 502. Roe V. Birkenhead Lancashire and Cheshire Junc- tion Raikvay CoTnpany. — Action for arrest and false imprison- ment. Plaintiff went to the Monks Ferry Station, Birkenhead, and took an excursion ticket thence to Bangor and back. He asked the clerk at what time the return train left Bangor, and was wrongly told at 7.30 p.m. He accordingly took the 7.30 p.m. train at Bangor, and on arrival at Chester his ticket was taken and 2s. 6d. excess demanded. He refused to pay, and a superintendent at the Chester Station directed one of the rail- way servants, named Phillips, to take him into custody, which was accordingly done by Phillips and the superintendent. Plaintiff then i:iaid the 2s. 6d. under protest, and brought an action. The first trial was before Justice Maule, at the Chester Spring Assizes, 1851, when the Jury gave a verdict against the Company for £50. Leave was given to appeal, and Chief Baron Pollock gave the following Judgment : — " This rule must be absolute to enter a non-suit. There was no evidence to show that the Company were liable. I regret that the Compan}^ should be able to escape the payment of the £50 damages, but we are bound to administer the law as it existed before the time of railways, and we must apply to this case the principles appli- cable to principal and agent and master and servant. The principle is that the master is not liable for the toHious act of the servant, unless he has either given him exj)ress directions or an implied authority to do the act. If the act had been one the Company were legally authorised to do, it might have been put as having been done with the authority of the Company. But the evidence was of an injury having been done, and done wrongfully, and therefore, treating Phillips as the servant, the Company are not liable for his toHious act any more than other individuals would be. Perhaps there might be some evidence of Phillips being the servant of the Defendants, but there is no evidence of authority given to him to arrest the 798 ARREST OF PERSONS, ASSAULTS, ETC. Plaintiff, and probably the whole was a blunder on his part, and was altogether unsanctioned by the Company." Barons Parke and Alderson concui'red. — Tried in Court of Exchequer, November 15, 1851. — Frorni Laiv Journal RejpoHs, vol. 21, jyage 9. 503. Lumsclen v. London and South Western Railway Company. — Action for damages for false imprisonment. Plaintiff and some friends went to the Clapham Junction Station to catch the 12.44 a.m. train. They had to wait, and commenced to skylark with White, the Company's policeman in uniform. Plaintiff and Wliite had a friendly sparring match. White's helmet fell off, and one of the party stopped it with his foot. White got indignant, sent for a policeman, and gave the party in charge for obstructing and assaulting him in the discharge of his duty. They were locked up for the night, but the case was next morning dismissed by the Magistrates. Baron Bramwell said there was no case whatever against the Company. " The Plaintiff, with others, quarrel with a man in the employment of the Company, who, without the slightest authority, gives him into the custody of a policeman. The Company cannot be liable for such an act on the part of one of their servants." Judgment for Company. — Tried in Court of Exchequer, June 19, 1867. — La^u Times Reports, vol. 16, page 609. 504. Poidton V. London and South Western Railway Compjany. — Action for false imprisonment for half an hour at Eomsey Eailway Station. The Plaintiff was in charge of a horse which had been exhibited at the Salisbury Agricultural Show. There was an arrangement that horses sent to the show could be sent back " on return free, if remaining unsold, on production of a certificate to that effect." The horse was loaded in a van at Salisbury, and no payment or booking took place. The station-master at Eomsey demanded 6s. lOd. for the carriage of the horse, which Plaintiff refused to pay ; and two policemen detained Plaintiff at Eomsey Eailway Station for half an hour until, by telegraph, it was ascertained from Salisbury it was "all right." The case was first tried at the Hants Spring AEEEST OF PERSONS, ASSAULTS, ETC. 799 Assizes, before Chief Baron Kellj, when the Jury gave Plaintiff a verdict for £10. The Company appealed, and on the appeal case Justice Blackburn said — " The question we have to deter- mine is — Can there be said to be any evidence from which it may be inferred that the Company authorised the station- master to do an act which it appears he would be utterly un- authorised to do ? We think not. We do not think it is within the scope of his authority in what he was authorised to do so to bind the Company, It was an act out of the scope of his authority, and for which the Company would be no more responsible than if he had committed an assault or done any other act which the Company never authorised him to do. An act was done on the part of the station-master which could never be right on the part of the Comj)any to do. Having no power themselves, they cannot give the station-master any power to do the act. Therefore the wrongful imprisonment is an act for which the Plaintiff, if he has a remedy at all, has it against the station-master personally, but not against the Com- pany. The Act enacts in very careful words that where a passenger does not pay his fare he may be taken into custody (8 Vic, cap. 20, sees. 103 & 104). To arrest and take into custody any person who does not pay his fare would be an act which the Company was authorised to do ; and it might be said that the station-master, being the head man on the spot, had authority to take into custody those who did not pay their fares, and if he made a mistake it was a mistake in doing a thing which the Company had given him authority to do, and then the Company would be responsible." Justices Mellor and Shee concurred. Judgment for Company. — Tried in Court of Queen's Bench, June 29, 1867. — Law Reports^ Queen's Bench, vol. 2, jja^e 534. 505. Allen V. London and South Western Railway CoTnpany. — Action for £100 for false imprisonment. Plaintiff, at the Twickenham Station, asked for a second class ticket to Waterloo. It was given him, and he put down a florin. In the change the booking clerk gave him a French two sous coin for a penny. Plaintiff refused the IVench coin, and demanded a penny. The clerk refused to give him one. Plaintiff then 800 ARREST OF PERSONS, ASSAULTS, ETC. reached over the counter and attempted to put his hand into the bowl of the till containing copper coin. The clerk seized Plaintiff, gave him in charge of the Company's policeman, and he was then given into charge of a Metropolitan policeman, and was locked up at the police station all night. The Magis- trates next day dismissed the charge. The case was first tried at the Middlesex Sittings, Hilary Term, 1870, before Justice Blackburn, when the Jury gave Plaintiff a verdict for £100. The Company appealed, and on the appeal case Justice Blackburn delivered Judgment — " There can be no doubt that the Plaintiff has been very ill used, as he was most improperly arrested, but, unfortunately, he has sued the wrong person, and therefore the Judgment must be for the Company. It is quite clear that there was no evidence of an express authority by the Company to arrest the Plaintiff. Then can such authority be implied ? The booking clerk has an imjDlied authority to do all acts which are necessary for the protection of the money en- trusted to him. I am inclined to think if a man in charge of the till were to find a person attempting to rob it, and he could not prevent him from stealing the property otherwise than by taking him into custody, the clerk might have an implied authority to arrest the offender ; or if the clerk had reason to believe that the money had been actually stolen, and he could get it back by taking the thief into custody, such might be within the authority of the person in charge of the till. I am not prepared to pronounce a decided opinion on these supposed cases. The present case is altogether different. There is a marked distinction between an act done for the purpose of protecting the property by preventing a felony, or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. There is no implied authority in a person having the custody of property to take such steps as he thinks fit to punish a person who he supposes has done something with reference to the property which he has not done. If the law were that the Company are responsible for the act of their clerk in giving the Plaintiff into custody on an unfounded charge, every shop- keeper in London would be answerable for any act done by a shopman who chose to accuse a person of having attempted ARREST OF PERSONS, ASSAULTS, ETC. 801 to plunder the shop. Where a company have, under a bye-law, a power to arrest a man if he does not pay his fare, the primary object of the bye-law is to enforce the payment of fares to the company, and to protect their interest ; and it has been rightly held that, when a company leave a servant in charge of a station, he has an implied authority to decide that the bye-law shall or shall not be enforced. But if the servant in charge of a station does an act in no way connected with the business of the company, there would be no implied authority, and the company would not be liable, as was decided in Poulton v. London and South Western, also Edwards v. London and North Western. There was no authority for the arrest when it could only be for the purpose of vindicating public justice, and not for the purpose of protecting the property of the Company." Verdict for Company. Justices Mellor, Lush, and Hannen concurred. — Tried in Court of Queen's Bench, Nov. 22, 1870. — From Law Reports, Queen's Bench, vol. 6, page 65 ; also reported in Law Journal Reports, vol. 40, page 55. 506. Edwards v. London and North Western Railvjay Company. — Action for damages for false imprisonment. Plain- tiff was a policeman in the Company's employ at the Canada Dock Station, Liverpool, and one evening (1st May, 1869) was removing some boards in a railway truck from the yard. Eichard Holmes, the Company's foreman porter — then in charge of the yard, the manager (Mr. Scaife) having left — gave Plaintiff into custody for stealing the boards. Plaintiff was brought before the Magistrates, and Holmes attended to prose- cute ; but the Magistrates, hearing how Plaintiff had acquired the right to the boards, discharged him. The Company a few days after discharged Plaintiff from their service. The case was first tried before Justice Hayes, at Liverpool, and the Jury found that the Company had affirmed the act of Holmes, and gave Plaintiff £100. Leave to appeal was given, if the Court should be of opinion that Holmes had no authority to give the Plaintiff into custody, or that there was no evidence of a ratifi- cation by the Company of the act done by Holmes. On the appeal case Justice Keating said — " This was an action in consequence of one of the Company's servants, named 51 802 ARREST OF PERSONS, ASSAULTS, ETC. Holmes, having given the Plaintiff into custody on a charge of felony. It appears Holmes, although not the superior servant at the Company's timber yard, was for the time being, by reason of the absence of the superior, the servant highest in station there, and, being under the impression the Plaintiff was steal- ing the property of the Company, he gave Plaintiff into custody. It is clear that there was no evidence of any express authority to give Plaintiff into custody ; and if there be any evidence to fix the Company in this action, it must be that such authority must be implied from the position occupied by Holmes as their servant, and that raises the question of whether a servant in the position of Holmes in this case has an implied authority to give anyone into custody. I am of opinion that he has no such implied authority. It seems to be agreed on both sides that there is no such case in which, under similar circumstances, such authority has been held to exist. There have been cases in which companies have been held liable for arrests made by their servants in pursuance of bye-laws, where the statute enabling the bye-laws to be passed has authorised persons to he appreherided who have broken them. In those cases it has been held that the servants placed by the Company to enforce their bye-laws have an authority to arrest, as such is to be im- plied from the authority to enforce the bye-laws. That is the farthest extent to which the liability has been carried, and it would be carrying it much farther than has ever yet been done if we were to hold the Company responsible for the arrest of the Plaintiff in the present case. Holmes acted in performance of a general duty to vindicate what he supposed had been an in- fraction of the law ; but that is not that sort of duty which would connect what he did with the Company. For that it must be shown that it was his duty to the Company to give persons into custody under such circumstances as occurred here, but I cannot find any evidence that would lead to any such im- plication. Plaintiff contended there was evidence of a ratifica- tion by the Company, but the Court intimated that there was no such evidence. To constitute a ratification there must be a knowledge of the act that has been done, and an intention to ratify it ; but the proof as to this failed on both points. I am unable to see any evidence on which a Jury would be justified ARREST OF PERSONS, ASSAULTS, ETC. 803 in finding the Company liable in this action." Justice Mon :ague Smith said — " I by no means, however, intend to say that in the case of a company which can act only by its representa- tives there might not be officers who, by reason of the nature 3f their appointment and other circumstances, might be pre- sumed to have authority from the company to apprehend, as, For instance, where the company have had servants appointed is night or police constables to watch and protect their pro- perty. It is not necessary to decide, nor do I wish to decide, Dhat point." He concurred with his learned brother's Judg- ment. Justice Brett also concurred, and said that in the 3ase of Poulton v. London and South Western Justice Black- bum pointed out that the arrest must be done by the servant, aot only for the benefit of his master, but in the course of his imployrnent {i.e., one of the objects of his duty). Judgment For Company. — Tried in Court of Queen^s Bench, May 4 and 7, 1870. — From Law Journal RepoHs, vol. 39, page 241. 804 PERSONAL INJURY. Personal Injury— To Passengers on Stations and Station Platforms „ To Passengers Aligliting from Carriages „ To Public at Goods Stations — Cranes, 6fc. „ To Passengers in connection with Carriage Doors „ To Cattle Drovers and others Travelling on Free Passes „ To Passengers from Accidents to Trains arising from Defects in Wheels, Tires, CranTcs, Pins, Sfc „ Arising from Accidents between Stations — Collisions, Sfc. — Negligence „ Arising from Accidents at Level Crossings „ Where a Company Issues a Through Ticket, and a Through Contract is thereby Made, and the Contracting Company is or is not Responsible for Personal Injury to Passengers on the Railways of other Companies „ Where Passengers, after Accepting Compensation for Personal Injury, Sue for further Compen- sation „ Railway Companies* Servants Authorising Medical and other Expenses in connection with Persons Injured by Railway Accidents „ Resulting in Death, where Survivors can and cannot Recover Compensation „ To Companies* Servants — Doctrine of Common Employment — Employers* Liability Act {1880) „ Miscellaneous Compensation for Accidentt. — 31 Sc 32 Vic, ewp. 119, sec. 26. — " Whenever any person injured by an accident on a railway claims compensation on account of the injury, any Judge of the Court in which proceedings to recover such compensation are taken, or any person who, by the consent of the parties or otherwise, has power to fix the amount of compensation, may order that the person injured be examined by some duly qualified medical practitioner named in the order and not being a witness on either side, and may make such order with respect to the costs of such examination as he may think fit." PERSONAL INJURY. 80 Personal Injury to Passengers on Stations and Station ^ Platforms. Tooney v. L. B. ^- S. C. (1857)... Watte V. North Eastern (1858) ... Cornman r. Eastern Counties (1859) Lowman v. D. W. # W. (1860) ... Loiigmore V. G. W. (1865) Nicholson v. L. ^ Y. (1865) ... Smith V. G. E. (1866) Crafter v. Met. (1866) Welfare v. L. B. ^- 8. C. (1869) Burke v. il/. S. & i. (1870) ... Leishman v. i. J5. # & C. (1870) Tebbutt V. j5. ^ E. (1870) Case No. 507 508 610 611 512 513 614 515 516 509 517 518 Long y. C. L. S. P. Co. (1871)... Thompson v. B. H. ^ B. (1871) Falkner v. G. S. # W. (1871) ... Nicholls V. G. S. # W. (1873) ... Hogan y. 5om Dawson v. Manchester Sheffield and Lincolnshire Railway Company. — Action for £200 compensation for personal injury — a contused shoulder and blow on the head. The quick train from Manchester to London ran off the line near Sheffield. The fore axle of the engine was found broken close to the boss, and there was no patent or visible flaw in the axle. The case was first tried at Liverpool Assizes, before Justice Crompton, when Plaintiff got a verdict for £200. The Company appealed, w4ien Chief Baron Pollock said — "We have held, where an accident happens, as in this case, to a passenger in a carriage on a line of railway, either by the carriage breaking down or running off the rails, that it is primed facie evidence for the Jury of negligence on the part of the Company. There was such prirad facie evidence of negligence here, and it was not rebutted by any evidence on the part of the Company." Judgment against the Company. — Tried in Couoi, of Exchequer, Jan. 15, 1862. — From Law Times, vol. 5, page 682. 587. Biirn v. Cork and Bandon Railway Company. — Action arising from an accident caused by fracture in a crank pin of one of the leading wheels of the engine. The Company contended the fracture was occasioned by an original defect in PERSONAL INJURY. 881 the material and construction of the said crank pin, and in the inside or centre thereof, which said defect, before the fracture occurred, was not capable of being detected by the Company upon due and proper observation ; that the Company purchased the engine in due course of business from competent manufac- turers ; and that the engine, before running on the day in question, was duly inspected. Chief Justice Pigott said — " The Company is bound to provide a roadworthy vehicle, and is answerable for all the consequences resulting from its not being so at the com- mencement of the journey. The question is whether the Com- pany have stated facts sufficient to exempt them from the consequences of the rule of law so propounded. I am of opinion they have not. Their plea admits that at the time of the commencement of the journey their engine was defective in construction, and that the breach of contract was caused by that defect. According to Sharjjj v. Grey (9 Bing., 457 ; s.c, 12 Moo. & S., 62), that is no valid reason for not performing their contract. Have they shown in their plea that as far as human care and foresight could go they provided for the safety of their passengers ? I think they have not. Their plea does not con- tain any averment as to the care or skill applied to the manu- facture of the engine, or as to the care or skill exercised by them in the selection or inspection of it. All the averments in their pleas are quite consistent with gross and culpable negligence on their part in the purchase of it from the manufacturers. If they had been themselves the manufacturers of the engine, they would have been bound to aver and to prove that due care and skill had been exercised in the process of its manufacture. Are they to be relieved from local liability because they allege that they have purchased it from a competent manufacturer? I think that would be a distinction dangerous to the public, and that, as Baron Alderson says, ' railway companies might buy ill-constructed or unsafe vehicles, and the public be without remedy.'" Verdict against Company. — Tried in Court of Exchequer, Dublin, Nov. 10, 1863. — From Irish Common Laiu Reports, vol. \'3, jJUfje 543. -^i* 588. Readhead v. North Midland Railway Company. — Action for injury to a passenger through the breaking down of 56 882 TERSONAL INJURY. a carriage. The wheel tire broke through a latent flaw in the welding. From an air bubble in the welding it was of less real thickness and strength than it ought to have been ; the flaw was not detected by the usual tests, and was one the manufacturer even could not have discovered, still less the Company's servants. Mr. Justice Lush, who tried the case at Durham, directed the Jury that, if they believed the evidence, the Company were not responsible, as they tvere only liable for negUgence, which on this evidence was disproved. A verdict was given for the Company. An appeal was made on the ground of misdirection, and that the Company were liable on an implied tvarranty that the carriage was safe and secure. Plaintiff relied upon Sharp v. Grey (9 Bingham's Keports, 1833), where a coach proprietor was held liable for an accident from a defect in the iron axletree. This was the first case in the Superior Courts where the question arose — Are railway companies liable on the ground of ivarranty for the conse- quences of latent defects not discoverable by any care or skill ? Three out of the fom- Judges in the Queen's Bench put the case on the ground of negligence^ not luarranty, so that the verdict was gained by the Company. IMr. Justice Lush (who tried the case previously) said — "The motion was upon the ground that the carrier of passengers is bound to provide a roadworthy vehicle, and consequently he is liable if it turns out to be defective, although the defect is of such a nature that it could not be discovered or guarded against. It is Qiot contended that the obligations of carriers of passengers is co-extensive with that of carriers of goods, who, by the custom of the realm, are insurers, subject only to certain well-known exceptions — the act of Grod or Queen's enemies. The grounds of a carrier's liability for goods are not applicable to a carrier of passengers. Mr. Justice Story, in his work on Bailments, sets forth the obligation is not absolutely to carry a passenger safely, but to exercise due care and diligence in performing the duty. I can see no reason why a earner should be held to warrant for that which no care or diligence would enable him to seciire. The Courts have drawn a clear distinc- tion between the liability of a carrier of goods as an insurer PERSONAL INJURY. 883 and the liability of a carrier of passengers for negligence. In Stokes w,. Eastern Counties Railway Company (2 Foster and Finlason's Rejiorts, 691) the Company were held not liable for an accident caused by a latent flaw, and the decision of the Lord Chief Justice was not questioned. I am of opinion the Judgment should be for the Company." INIr. Justice Mellor concurred that railway companies were bound to use the utmost skill and care in all that concerned the safety of their passengers ; they were not liable for defects which no care or skill could discover or guard against. " Lord Holt says — * "WTiy carriers are held to be insurers is founded on the danger of carriers (in old times) colluding with thieves, if they were allowed to set up robbery or loss by accident as an excuse for failure to deliver goods.' If the breaking down of the carriage had been unexplained, perhaps there would have been a prima facie case of negligence. The Company must use every precaution in known practical use. I am of opinion Judgment should be for the Company." Mr. Justice Blackburn — " This is a question of very great nicety and importance, and, after some consideration and doubt, I have come to the conclusion that on the balance of English authority, and on principle and the analogy to other cases, there is a duty on the carrier to this extent, that he is bound at his peril to supply a vehicle in fact reasonably sufficient for the purpose, and is responsible for the consequences of his failure to do so, though occasioned by a latent defect, and therefore that the direction was wrong, and that there should be a new trial. I quite agree with my two brothers that the carrier of passengers is not, like the carrier of goods, an insurer who undertakes to carry safely at all events unless prevented by exceptional perils. I see notliing to diminish the obligation to provide a reasonably safe vehicle in the fact that it is to be provided for the safety of life and limb, and not merely of property. The carrier provides and selects the carriage, and the passenger is obliged to trust entirely to the carrier, having no means of examining the carriage and no voice in the selec- tion of it." Judgment for Company. — Tried at Queen's Bench, May 15, 18G7. — From Laiv Journal Reports, vol. 36, page 181. I 884 PERSONAL INJURY. The Plaintiff appealed to the Exchequer Chamber, and the case was again tried May 10, 1869, when the Judgment of the Court of Queen's Bench was affirmed, it being held that the Company were not liable in respect of such injury, there being no contract of warranty and insurance in the case of passengers that the carriage should be in all respects perfect for its pur- pose — that is to say, free from all defects likely to cause peril. Common carriers in such case are required to take due care. — Law Journal Reports, vol. 38, page 169. 589. Phelps V. Great Eastern Raihvay Company. — Action for £1,500 for personal injury. In November, 1868, Plaintiff was a passenger from Colchester ; his carriage bumped and rocked, and ultimately left the rails, and one of the tires was broken. New wheels had been put on the carriage three weeks before the accident. There was a minute on the directors' board book to their law clerk to settle the claim. Plaintiff relied upon this as an admission of liability, and contended the carriage was improperly coupled, which was negligence for which the Company were liable. The Company contended there was an undiscoverable flaw in the wheel, and that the tire broke and caused the carriage to go off the line, and that the tire was not broken after but before the carriage left the rails. The engine-driver proved he examined the wheels and tires before the journey. Chief Baron Kelly, in summing up to the Jury, said it was for Plaintiff to make out that the accident arose from negligence on the part of the Company's servants. If the evidence left this point in doubt, they must find for the Company. The Company would not be liable for a defect or flaw in the iron. The alleged admission of liability by the Company's law clerk was not conclusive. The Jury found for the Company. — Tried at the Croydon Su^nmer Assizes, August 16, 1869. — Laiv Times Reports, vol. 21, page 443. PERSONAL INJURY. 885 Personal Injury arising from Accidents between Stations Collisions, &c. — Negligence. Grote V. C. ^ 5. (1848; Blalce V. Midland (1852) Allen Y. C. 4- H. (1857) Bird V. Great Northern (1858) ... Dalton V. 8o>dh Eastern (1858)... Ford V. L. 4r 8. W. (1862) Case No. 590 591 592 593 594 595 G. W. of Canada -v. Fa w cett (\86Z) Hart V. L. ^ 7. (1869) Ferns v. North British (1872) ... Blaiiiires v. L. Sf Y. (1873) Richardson \.G.E.{W7^) Philli]?s Y. L. 4- 8. W. (1879) ... Case No. 596 597 598 599 60O 601 59 0. Grote V. Chester and Holyhead Railway Company. — Action for personal injury from a railway accident, which arose from a bridge on the railway breaking down. It was held that it was a proper question for the Jury whether the Defen- dants had engaged the services of competent engineers, who had adopted the best method, and had used the best materials ; and that if the Defendants had done so they would not be liable, but that the mere fact of their havincr ensfaored the services of such a person would not relieve them from the consequences of an accident arising from a deficiency of the work. Judgment against Company. — Tried in Court of Ex- chequer, April 29, 1848. — From Welsby, Harlstone, and Gordon's Reports, vol. 2, page 251. 591 . Blake v. Midland Railway Company. — Action by a wife, as administratrix for death of her husband by an accident caused by the negligence of the Company. It was simply a question of amount of damages. The case was first tried before Baron Parke, Derbyshire Summer Assizes, ISol, Avhen the Judge, in summing up, told tlie Jury that until the Act of 9 & 10 Vic, cap. 93, compensation could not be recovered for the death of a person, the ancient common law maxim being that the value of life was so great as to be incapable of being esti- mated by money. The Plaintiff, by the death of her husband, came into £7,000. The husband's income was £850 a year. Fifteen and a half years was the probable time she would liave enjoyed it during the joint lives of herself and her husband. This amounted to £13,188, and, deducting £7,000, a balance of £6,188 loss would remain. That the Plaintiff had experienced 886 PERSONAL INJURY. a great deal of anxiety, and it was for the Jury to consider "whether they would confine themselves to the pecuniary loss. The Jury returned a verdict for £4,000 daniages. The Com- pany appealed, on the ground that the Judge had misdirected the Jury as to the principle upon which the damages were to be assessed, and also that the damages were excessive. The Judgment on appeal was given by Justice Coleridge — "This case turns entirely upon the construction of the recent statute, and the question is whether, in giving damages for the death of the deceased, the Jury are confined to injuries of which a pecuniary estimate may be made, or may add a solatium in respect of the mental suffering occasioned by such death. Certain decisions in the Court of Session, Scotland, on the law of assythement have very properly been brought under notice. This law has not been introduced into England in its full latitude, or compensation for the loss of a parent by a wilful act, neglect, or default would be due to illegitimate as well as to legitimate children. The title of the Act under which the claim is made is ' An Act for compensating families of persons killed by accident,' not for solacing their wounded feelings. If a Jury were to proceed to estimate the relative degree of mental anguish of a widow and twelve children from the death of the father of the family, a serious danger might arise of damages being given to the ruin of the Defendants. We must recollect that the Act we are construing applies not only to great railway companies, but to little tradesmen who send out a horse and cart in the care of an apprentice. For these reasons we are of opinion that the learned Judge at the trial ought more explicitly to have told the Jury that in assessing the damage they could not take into their consideration the mental suffering of the Plaintiff for the loss of her husband, and that, as the damages certainly exceeded any loss sustained by her admitting of a pecuniary estimate, they must be considered excessive." Eule granted for a new trial on the ground of mis- direction. — Tried in Court of Queen^s Bench, February 21, 1852. — From Law Journal Beports, vol. 21, page 233. 592. Allen y. Chester and Holyhead Railway Company. — Action for £4,000 for personal injury to a Post Office clerk from a PERSONAL rNJURY. 887 collision near Bangor, May 10, 1856. A goods train, owing to an accident to its engine, was only able to travel at about fifteen miles an hour, and the mail train ran into it. The Post Office van was the seventh vehicle from engine. No passenger was injured, nor were the carriages or trucks. The mail guard in same van was thrown on the mail bags, and his finger, entangled in some string, was cut. Plaintiff laughed at the scene, com- plained of no injury, and performed his duties to Holyhead and back to Chester same night. He did the same on the next night (10th May), but on the 12th complained of a headache, consulted a doctor, and went to Dr. Gully's hydropathic place at Malvern for seven months. Dr. Gully swore he suffered from loss of memory, inability to retain urine or fseces, seminal weakness, &c., attributed by ]Mi'. Solly and Dr. Lewis (physician to Post Office) to injury to brain and spine. IMi'. Solly was of opinion that concussion of the brain might arise in a railway accident and no visible symptoms occur for a considerable time. In August Plaintiff obtained £250 from Passengers' Assurance, and it was not until October he claimed from Company, issuing a writ in November. A few days before issue of writ he made a proposal for assurance to the United Kingdom Office, and was refused. Two surgeons gave evidence for Company that the absence of any symptoms at the time, or for twenty-four hours afterwards, negatived any injury to brain or spinal cord. The Company failed to rebut negligence through stupidity of a witness. An interval of seventeen minutes was proved between departure of trains from Conway. Judge summed up in Plain- tiff's favour. Verdict for Plaintiff, £\,40i).— Tried before Justice Cockburoi, Common Pleas, Feb, 18, 1857. 593. ^ird V. Great NoHhern Raikvay Coonjpany. — Action for personal injury on the ground of alleged negligence. The engine left the rails where they were not "fislied," altlioiigh the line about the same spot was in course of being " fished." The fact of the rails not being so " fished " was relied upon as evidence of negligence. The Jury were not able to find a verdict for Plaintiff on this i)lea, and he appealed. On the appeal case Chief Baron Pollock said— "It is for the Plain- tiff to prove negligence. The Company's undertaking was not 888 PERSONAL INJURY. to carry safely, but to carry with reasonable care. Tliey are not, as (in the case of) carriers of goods, insurers ; therefore the burden of proof was on the Plaintiff." Verdict for Company. — Tried in Court of Exchequer, Nov. 4, 1858. — From Law Journal Reports, vol. 28, page 3. 594-. Dalton V. Soutli Eastern Raihvay Company. — Action for £600 for the death of Thomas Dalton, on the 28th June, 1857, in a collision occurring between Black- heath and Lewisham. Plaintiffs were the father and mother of deceased, and were about fifty years of age and in poor cu'cumstances. Deceased was a pianoforte maker, and earned £150 a year. For seven or eight years he had lived apart from his parents, but visited them fortnightly, bringing presents of about £10 a year and pecuniary aid about another £10 a year. The case was tried at the Middlesex Sittings after Hilary Term, 1858, when the Jury gave a verdict for £120 damages (£80 for the father and £40 for the mother), with £15 funeral expenses and £10 for mourning. The Company appealed, and on the new trial Justice Willes said — "The great question in this case was disposed of in the Court of Exchequer in Franklin v. South Eastern Railway Company, by which it is decided, with our entire concurrence, that legal liability alone is not the test of injury in respect of which damages may be recovered under Lord Campbell's Act, but that a reasonable expectation of pecuniary advantage by the relatives remaining alive may be taken into account by a Jury, and damages may be given in respect of that expectation if it be disappointed and the probable pecuniary loss thereby occasioned. In respect, therefore, of the sum of £120 given as damages on that footing the verdict must stand. As to the claim for funeral expenses and mourning, however, we may think they cannot be allowed. The subject matter of the statute is compensation for injury by reason of a relative not being alive, and there is no language in the statute referring to the cost of the ceremonial of resj)ect paid to the memory of the deceased in his funeral or in putting on mourning for his loss. The rule must therefore be absolute to reduce the verdict by those expenses, and the £120 damages must stand.'^ PERSONAL INJURY. 889 —Tried in Court of Common Pleas, May 6, 1858.— i^'rom Laiv Journal Reports, vol. 27, page 227, C.P. 595. Ford V. London and South Western Raihuay Company. — Action for £1,500 for personal injury, Plaintiflf having broken two ribs, dislocated his shoulder, received a severe blow on his blade-bone, and being otherwise materially injured. An accident happened near Epsom Junction on 28th January, 1861, to an express train of ten carriages and a brake van. One of the tender wheels got oif the line, and upon going round a curve three carriages fell down the embankment on one side, and two on the other. Plaintiff contended neghgence — ( 1 ) That the tire of the wheel was in an improper state ; (2) that the train was going at too fast a rate ; (3) that the gauge between the metals at the curve was in some places wider than others ; (4) that the brake van (placed between the fourth and fifth carriage) was in an improper place. The Company contended that twelve minutes before the accident trains passed in safety over the place, and that the line could not have been unsafe ; that the accident did not arise from the wheel of the tender leaving the rail, but from one of the carriages flying off; that the train was an express train, and was not going at a greater speed than thirty miles an hour ; that the metals would always vary, even on the best managed railways ; that it was a matter of opinion where the brake van should be placed ; that some carriages were to have been shunted, and it could not have been put nearer to the end of train. The Company proved that practical experi- ence had shown that a tire need not be replaced until worn down below seven-eigliths of an inch, and that it had not been worn below an inch. Chief Justice Erie said — " The action was grounded on negligence. Negligence is not to be defined, because it involves some inquiry as to the degree of care required. The Company is bound to take reasonable care, to use the best precautions in known practical use for securing the safety of passengers. If they have done so, they have done their duty, and are not guilty of negligence ; if otherwise, the contrary. You are to consider what is reasonable care, and whether they used the proper pre- cautions. At the same time, a Jury would not be entitled to- 890 PERSONAL INJURY. expect the utmost that could possibly be conceived, or the highest possible degree of skill. It is sufficient if they use every precaution in known practical iise for the safety and conveni- ence of the passengers. Both objects must be looked to. Slower speed would add to security, while it would entail a very great degree of inconvenience. A company ought not to be found guilty because they did something more for safety at a greater sacrifice of convenience. (1) Was there negligence in using the tender wheel, and if so, did that cause the injury ? (2) Was there negligence in the speed of the train, and did that cause the damage ? (3) Was there negligence in respect of the brake power, either as being insufficient or badly placed, and did that cause damage ? " The Jury found there was negligence in using the wheel of the tender, but that it did not cause damage ; that there was negligence in the other counts, which caused the damage. Verdict, £1,500. — Tried in Court of Common Fleas, 1862. — Foster and Fiidason^s Nisi Frius Reports, vol. 2, page 730. (The Company moved for a new trial, not on the ground of misdirection, but as against evidence. The Court, however, refused the rule.) 596. Great Western Railway of Canada v. Fawcett, and also Braid. — Action by two widows for the death of their husbands, arising from the giving way of part of an embank- ment running along the side of a hill between Hamilton and Copetown, Canada West. A gap 45 yards wide had been made, and about 2 a.m., March 19, 1859, the train in which the two deceased men were travelling fell into the gap, and they were killed. The weather had been wet for two or three days previously, and the winter's frost was coming out of the ground ; the night in question was very stormy, and from 6 j).m. of the 18th March there had been an excessively heavy rain. A loaded train had passed safely over the place of the accident within an hour of the time when the accident occurred. Plaintiffs contended the accident arose from the Company having the embankment, and the culverts, drains, and gutters thereof, unskilfully and improperly placed and built, and also constructed of insufficient materials and size ; that the fact of having an embankment of porous materials on the slope PEESONAL INJURY. 891 of a hill about 150 feet high 100 feet down the slope, without a ditch that gave a free course to the water coming down the hill towards the embankment, is clearly unskilful and negligent. The case was first tried October 31, 1859, at Hamilton, before the Hon. Sir John Beverly Eobinson, Chief Justice of Upper Canada. He left to the Jury — (1) Was the providing and maintaining a good drain to the east culvert a proper precaution to be taken ? (2) Did the Company neglect that p»recaution ? (3) Was such neglect the cause of the accident ? He said — " On the first issue I think the evidence and the dictates of common sense are with the Plaintiffs, and that omission to secure proper drainage would be culpable neglect. On the second issue there is in the evidence more I'oom for a doubt. On the third the Jury must determine." The Jury retm-ned a verdict for ^5,000. A rule nisi for a new trial was obtained, on the ground that the Jury should have been told there was no evidence of negligence, or that the weight was in favour of the Company, and that the Company were not bound to provide against extraordinary storms. The Court discharged the rule, thus affirming the verdict of the Court below. The Company then appealed to the Court of Error and Appeal of Upper Canada, when the Judgment was affirmed. The Company then appealed to the House of Lords. Lord Chelmsford, in giving Judgment, said — " The part of the railway where the accident occurred was carried over an embankment made on the slope of a hill, and had been in use for four or five years without any injury having happened. Their Lords) dps, without attempting to lay down any general rule, which would probably be impracticable, think it sufficient for the purj-.oses of their Judgment to say that the Company ought to have constructed their works in such a manner as to be capable of resisting all the violence of weather which in the climate of Canada might be expected, thougli perhaps rarely, to occur. Now the evidence, fairly considered, shows nothing beyond this in the character and degree of the storm which destroyed the embankment. One witness says it was 'a bad riiglit, very bad ;' another, in the usual style of exaggeration, that it w;is M he worst night he ever saw.' It is stated by others that the rain 'washed away bridges and portions of the road.' One of the Plaintiffs' witnesses 892 PERSONAL INJURY. describes the storm as ' a very unusual one,' and another witness as 'an extraordinary storm.' In the whole of this evidence there is nothing more proved than that the night was one of unusual severity; but there is no proof that nothing similar had been experienced before, nor is there anything to lead to a conclusion that it was at all improbable that such a storm might at any time occur. It appears there was a ditch made for the purpose of carrying off the water that came down the hill ; but it was either imperfectly constructed from the first, and of insufficient dimensions, or it was suffered to be obstructed and choked up, so that when an unusual quantity of water flowed into it, it was unequal to the occasion. The Company's engineer, in his report, says — ' It appears from the levels that there was a depression of two feet in one place. The ditch is an imperfect one. If that depression of two feet had been filled in, I question whether that accident would have occurred.' It is evident that the embankment was insufficiently provided with means of resisting the storm, which, though of unusual violence, was not of such a character as might not reasonably have been anticipated, and which, therefore, ought to have been provided against by all reasonable and prudent precautions. Even supposing the learned Judge omitted to explain to the Jury what amount of vis Tiiajor would exonerate the Company from the charge of negligence, yet their Lordships are of opinion that had this direction been given, and had the Jury been led by it to find for the Company, their verdict would have been wrong." Judgment affirmed, and consequently against the Company. — Tried before the Judicial Committee of the Privy Council, February 21, 1863. — From Law Times Reports, vol. 8, page 31. 597. iJ^a^rt y. Lancashire and Yorkshire Raihvay Com- pany. — Action for personal injury. Plaintiff was seated in a train at Miles Platting ticket platform, and the tickets were being collected. An engine-cleaner was shunting an engine across from the coaling siding to the engine shed. While doing this he fell down on the footplate in a fit just as he should have reversed the engine. The signalman saw this, and purposely turned the moving engine on to the ticket PERSONAL INJURY. 893 platform line, as the up and down express trains were both nearly due on the other lines, and the engine would have run into one or the other according as the points might have been turned. Owing to the collision at the platform. Plaintiff was injured. The case was first tried at Liverpool Assizes, when the Jury held there was negligence, and gave a verdict for £110. The Company appealed, when Chief Baron Kelly said — "I think there was no negligence at all, and I must confess that I see no evidence of any. It has been contended there ought always to be two men on an engine ; but if that be the case, I see no reason why it should not be a necessary one in every imaginable case where one man is employed in any duty what- ever about a railway." Baron Bramwell said — " Suppose we were to hold that this verdict was right, and the Company were to do what I think they would not be blamable for doing, to publish a new and increased tariff, and to say — ' Whereas the Court of Exchequer has laid it down as law that two men are necessary on every engine, under all possible or conceivable circumstances, where only one man was accustomed to be emj^loyed before, therefore we have raised our fares to such and such prices, to meet the extra expense imposed on and incurred by us in complying with the decision of the Court.' " The Company having made some alteration in the sidings since the accident, Baron Bramwell said — " People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell Juries, to liold that because the world gets waser as its gets older, therefore it was foolish before." Barons Channell and Cleasby concurred. Judgment for Company. — Tried in Court of Exchequer, June 10, 1869. — From Laiv Times lleports, vol. 2\,2J(ifje 261. 598. Ferns and M^Cormick v. NoHli British Raihvay Company. — Action for personal injury. Plaintiffs (Ferns and M'Cormick) were travelling in a train from Glasgow to Airdrie. Near Sunnyside (Coatbridge Station) a goods train was jjassing on the other line. Two waggons of the goods train got off the rails while the train was in motion, and the passenger train 894 PERSONAL INJURY. struck them and was also thrown off the rails, and Plaintiffs were injured. Plaintiffs contended that a waggon belonging to the Grlasgow Police Board — one of the waggons that got off the rails from the goods train — had lower buffers than the Com- pany's waggon coupled to it behind; that the buffers of the two waggons got interlocked, and that the Company's waggon — the first to leave the rails — was thus jerked off. The accident occurred on a curve. It was proved that the buffer of the Com- pany's waggon came opposite the police waggon to the extent of a space of 6 inches on one side and 4| inches on the other. Skilled witnesses said this was sufficient, but it would have been better if it had been more. The Lord President said — " As to the law, it lies upon the Plaintiffs to prove this collision took place through the fault of the Company; and if they do not prove that, they cannot recover damages. The obligations of a company in conveying passengers are quite different from those that belong to them as carriers of goods. To a certain extent (contrasted with goods) passengers can take care of themselves; and, at all events, they are intelligent beings present upon the scene of any accident that occurs, and capable of giving an account of what occurred. Therefore they are not entitled, according to the legal rule, to recover damages for any injury done to them in the course of their journey, unless they can prove that it has occurred through the fault of the carrier who is carrying. The law is not peculiar to the case of railways, for the same law prevailed in old days, before railways were known ; for a coach proprietor was answerable if an accident occurred from his using horses of vicious temper, or from his having a careless driver or an ill-constructed coach. But he was not liable for a mere accident that could not have been foreseen or prevented. If two trains meet each other on the same line of rails, it is impossible that that could have happened without the fault of the company ; but when two trains are running upon opposite lines, as here, and the accident occurs through some of the waggons upon the one line getting suddenly off that line and coming in contact with the train running upon the other line, it must be obvious to you that that may have occurred either through unaccountable accident or through the fault of the PERSONAL INJURY. 895 company ; and that is just the case you are now trying." The Jury gave a verdict for the Company. — Tried in Court of Session (First Division)^ Scotland, July 24 and 25, 1872. — From Law Times RepoHs, vol. 27, page 178. 599. Blamires v. Lancashire and Yorkshire Raihvay Company. — Action for personal injury. Plaintiff was a passenger by an excursion train, Cleckheaton to Blackburn. After passing Blackburn eight of the twenty-eight carriages forming the train became detached, and one carriage, in which Plaintiff was, fell over an embankment four yards high, and Plaintiff sustained the injuries of which he now complained. It was found the tire of one of the wheels of the carriage had been fractured near one of the rivet holes ; hence the tire was loose, and caused the accident. There was a serious jerk to the carriage half a mile after passing Blackburn; in three or four minutes after a more severe shock, throwing the passengers together ; and three quarters of a mile further the accident happened. The Plaintiff contended that under the Eailways Eegulation Act, 1868 (31 & 32 Vic, cap. 119, sec. 22), the Company were bound under penalties of £10 for each de- fault in neglecting to attach means of communication between passengers and the servants controlling the train, when a train travelled more than twenty miles without stopping. The time- table showed the train would run more than twenty miles without stopping. The Company gave evidence that they gave peremptory instructions to their servants with the train to stop every twenty miles. The case was first tried before Chief liaron Kelly, who left to the Jury — (1) Were the instructions given to the Company's servants and the time-tables, taken together, to the effect that all excursion trains were to be stopped once within twenty miles ? (2) Was the want of communication negligence or a breach of duty on the part of the Company ? (3) Did the want of such communication cause or materially conduce to the accident ? (4) Was the accident caused by the negligence of the Company? The Jury answered — (1) No; and the other questions. Yes. They also found the material the tire was composed of was sufficient for the purpose, and they negatived 896 PERSONAL INJURY. the existence of any negligence on the part of the Company on that ground. They gave Plaintiff £350 damages. The Court of Exchequer refused the Company a new trial on the ground of misdirection, hence the Company appealed to the Exchequer Chamber. On the appeal case Justice Blackburn said — "The Jury having negatived the existence of negligence from the breaking of the tire, was there negligence from the absence of communi- cation between the passengers and the servants controlling the train ? The Jury found it conduced to the accident the Com- pany not stopping the train every twenty miles. I am of opinion there was reasonable evidence to go to the Jury, and it was for them to say if the ordinary means of communication had existed the mischief could have been prevented by the train stopping in time. I am of opinion the case could not have been properly withdrawn from the Jury, and that the train being one to which the Act applied, and the mischief happening in consequence of the absence of the statutory precaution, our Judgment should be against the Company." Justices Keating, Brett, Grove, and Archibald concurred. Judgment against Company . — TriecZ ioi Court of Exchequer Chamber, June 27, 1873. — Frotn Laiv Journal Reports, vol. 42, page 182. 600. Richardson v. Great Eastern Raihvay Company. — Action for £230 for personal injury, arising from an accident near Sawbridgeworth, on 11th September, 1873, by a goods van on a goods train, when passing a passenger train, leaving the rails and tearing out the side of the carriage in which Plaintiff sat. The cause of the van leaving the rails was the breaking of the leading axle of a truck (104) immediately in front of it. This was a loaded coal truck belonging to the Birmingham Waggon Company, but rented from them and used by J. & H. Grirling. The truck was passing with a load of coal from the system of the Great Northern Eailway Company to that of the Great Eastern Railway Company. It was examined at Peterborough by Moorcroft, the Great Eastern Company's chief examiner, who found one of springs was depressed, and there was a crack in the sole. The truck was consequently PERSONAL INJURY. 897 detained five days at Peterborough, where the Birmingham Waggon Company put in a new spring, but did not repair the sole, as to do so would have rendered necessary the unloading of the truck, which was not done. The Birminofham Wao-cron Company wished to have the truck back for a thorough over- hauling, and Moorcroft himself put this mark upon the truck — "Stop at Peterborough for repairs when empty. 10/9/1878," The examination which had taken place had not extended to a minute examination of the axle by scraping off the dirt, and there was no j)ossibility of discovering without so doing the flaw which, as it turned out, existed in the axle. The case was first tried at Kingston, in March, 1874, before Chief Baron Kelly, who left the following questions to the Jury:— 1 . Would the defect in the axle, which was the cause of the accident, have been discovered or discoverable upon any fit and careful examination of it to which it might have been subjected? Answer — Yes. 2. Was it the duty of the Company to examine the axle by scraping off the dirt and minutely looking at it, so minutely as to enable them to see the crack, and so to prevent or remedy the mischief ? Answer — No. 3. If that was not their duty upon the first view of the truck, did it become their duty so to do when, upon having discovered the defect, they ordered it to be repaired, and it remained for four or five days upon their premises for that purpose? Answer — It was their duty to require from the Waggon Company some distinct assurance that it had been thoroughly examined and repaired. Upon these findings the Judge directed a verdict for the Company upon the ground of the answer given to the second question; and with regard to the answer given to the third question, gave Plaintiff leave to move to set aside the verdict and enter for him if, upon that finding and the whole of tlie facts of the case, the Plaintiff should, in the opinion of the Court, be so entitled. On the appeal case Chief Justice Lord Chelmsford said — " The Great Eastern Company, under the 92nd clause of the Railway Clauses Consolidation Act, is bound to carry the trucks 67 898 PEESONAL INJURY. and goods in trucks of other carriers and of private individuals or Companies which come upon their line, and which they are bound to forward upon payment of certain tolls. There was, we now know, a latent defect, viz., a crack in the axle. It is admitted this last defect caused the accident. Were the Com- pany guilty of negligence in not discovering it ? The fact was that the Waggon Company were anxious to make an examination by overhauling the truck when empty, and, knowing this (by their servant Moorcroft), it was negligence in the Company, to let it go on its journey, as it was to save the trouble of un- loading it. What answer is it to a man who is suffering from the terrible effects of an accident to be told that the Company, knowing a truck to be unsound, yet choose to run the risk of its lasting through the journey? There was clear evidence, therefore, in my opinion, that there was negligence in the Company." Justices Denman and Huddleston concurred. Judgment against Company, £250 damages. — Tried in Court of Common Pleas, May 6, 1875. — From Law Times Reports, vol. 33, page 248. The Company carried the case to the Court of Appeal, when the Master of the Eolls ( Jessel) said — " We must look to what is reasonable in reference to the exigencies of mankind. The Company cannot stop all foreign trucks and empty them for the purpose of a minute examination. If they were entitled to do so, it would practically destroy the right given by statute to other companies of having their through traflfic forwarded, and give a monopoly to the Company itself. The suggestion that they should do this is too absurd to bear discussion. There must be some reasonable limit to the amount of examination required, and the substantial question was whether the mode ^f examination adopted by the Company was reasonably satis- factory. The accident occurred through a defect in no way connected with the two defects discovered, namely, a defect in the axle. If the defects discovered were such as ought reason- ably to induce a person of experience to think that some other defect existed or was likely to exist, then there would be a duty to examine further ; but if the defect discovered had no probable connection with any other undiscovered defect, then I see no reason why any further examination should be made." Lord PERSONAL INJURY. 899 Justice Mellish and Baron Pollock concurred. Judgment for Company, reversing the Judgment of the Court of Common Tleas.—Tried in CouH of Appeal, May 10, I^IQ.—Frov.i Law Times Reports, vol. 35, page 351. 601. Phillips V. London and South Western Ralhvay Compjany. — Action by a London physician for personal injuries arising from a railway accident between an engine and a train on 8th December, 1877. The case was first tried before Justice Field in April, 1879, and a Special Jury of the City of London, when damages £7,000 were given, it having been held that the accident arose from negligence. Plaintiff was forty-six years of age, and for ten years preceding the accident he made an average income of £5,000 a year. He had incurred £1,000 expenses before the trial, and he enjoyed a private income of £3,500 a year. Plaintiff considered the damages of £7,000 insufficient, and appealed to the Court of Queen's Bench for a new trial. Chief Justice Cockburn said — " We are of opinion there must be a new trial. We are led to the conclusion, not only that the damages are inadequate, but that the Jury must have omitted to take into consideration some of the elements of damage which ought to have been taken into account. The Plaintiff was a man of middle age and robust health. His health has been irrex^arably injured to such a degree as to render life a burden and a source of the utmost misery. He has undergone a great amount of pain and suffering. The probability is that he will never recover. His condition is at once helpless and hopeless. The expenses incurred by reason of the accident have already amounted to £1,000. Medical attend- ance still is, and is likely to be for a long time, necessary. He was making an income of £5,000 a year, the amount of which has been positively lost for sixteen months. The positive pecuniary loss thus sustained all but swallows up the greater portion of the damages awarded by the Jury. It leaves little or nothing for health jjermanently destroyed and income permanently lost. Generally speaking, we agree with Justice Brett, in Rowley v. London and North Western Railway Company, that a Jury * must not attempt to give damages to the full amount of a perfect compensation for the pecuniary injury, but must take a 900 PERSONAL INJURY. reasonable view of the case, and give what they consider, under all the circumstances, a fair compensation.' But we think a Jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage. These are the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degree and its probable duration, as likely to be temporary or permanent ; the expenses incidental to attempts to effect a cure or to lessen the amount of injury; the pecuniary loss sustained through inability to attend to a profession or business, which again may be of a temporary character or may be such as to incapacitate the party for the remainder of his life. There can be no doubt of the power of the Court to grant a new trial where in such an action the damages are excessive. There can be no reason why the same principle should not apply where they are insufficient to meet the justice of the case. The rule must therefore be made absolute for a new trial." — Heard in the Court of Queen's Bench, April 25 and June 20, 1879. — From Laiu Times Re- ports, vol. 40, page 813. The Company carried the case to the Court of Appeal to resist the decision of the Court of Queen's Bench granting a new trial. The appeal was heard July 28, 1879, when Lord Justice James confirmed the decision of the Court of Queen's Bench for a new trial. In November, 1879, the new trial came on before Chief Justice Coleridge and a Special Jury, at Westminster, when the Jury gave a verdict for £16,000. The Company appealed to the Court of Common Pleas for a new trial, and it was refused. The Company then carried the case to the Court of Appeal for a new trial, when Ijord Justice Bramwell said — " I am of opinion there should be no rule for a new trial. I cannot say that I think the verdict of the Jury wrong ; on the contrary, I think it at least right. I will assume that they gave the Plaintiff £1,000 for his pain and suffering, and three years' income at the rate of £'5,000 a year. They ought at any rate to have given him as much as that, and the only misgiving which I have is whether they ought not to have given him more. It is said to be unreasonable that where two persons are carried for the same fare one of them, if injured, should recover £10,000 against PERSONAL INJURY. 901 the Company, while the other would only be able to recover £1,000. It may be unreasonable as regards the two passengers inter se, but it is not unreasonable as between the Company and the public. The Company have taken their powers upon certain conditions, and one of them is that if they break their contracts to carry they shall make compensation to persons injured by reason of the breach." Lord Justice Brett con- curred, and said in the case of Roivley v. London and North Western Raihvay Company Chief Baron Kelly tried to direct the Jury to a perfect compensation by telling them to calculate an annuity which would produce for a certain number of years, or for such years as they might think necessary, such a sum as the Plaintiff was making yearly. The Court of Exchequer Chamber in that case thought the direction wrong. Lord Justice Cotton concurred. Judgment against Comj)any, who were thus left to pay the £16,000. — T'^'ied in Court of Appeal, December 17, 1879. — From Law Times Reports, vol. 42, page 6. Personal Injuries arising from Accidents at Level Crossings. Singleton v. E. C. (1859) Marf ell V. S. W. (1860) M. S. J. .j- A. V. Fullarton (1863) Condon v. G. S. Sf W. (1865) ... StuUey V. L. Sf N. W. (1865) ... Bilbee v. L. B. Sf S. C. (1865) ... Stapler/ y. L. B. ^ S. C. (1865)... Wi/att\. G. W. (1865) Limn V. L. ^- N. W. (1866) ... James v. G. W. (1867) Case No. 602 603 604 605 6C6 607 608 609 610 611 Skelton v. L. &,• N. IK. (1807) Cumberton v. I. N. W. (1869) Cliff V. Midland ( 1 870) ... Fatchell V. I. N. IK. (1871) Wanless V. N. E. (IS71) ... Rogers v. R/ii/mnei/ (1872) ... Oliver V. N. £. (1874) miliums V. G. IF. (1874)... Ellis V. 0. ]V. (1874) Case No. 612 613 614 615 616 617 618 619 620 602. Singleton v. Eastern Counties Railway Company. — Action for personal injury to a child three and a half years old, who strayed upon a railway and had its leg cut off by a passing train. Held — That in the absence of any evidence to show that the child got there through some neglect or default on the joart of the Company, they were not responsible for the 902 PEKSONAL mjURY. injury. Judgment for Company. — Tried in the Court of GoTn- mon Pleas, November 4, 1859. — From Scotfs Common Bench Reports, vol. 7, jjctge 287. 603. Marfell v. South Wales Railway. — Action for £Z5 for a horse killed on a level crossing. Plaintiff was a haulier in the Forest of Dean. By the side of the Company's line is a tramway, their property, running some distance beside the rail- way, and then across the line to the Kegulator Colliery. There were gates at the crossing, but they were always open. The tramway is open at one side, but between it and the railway there is a sufficient fence down to the gate. The Plaintiff used the tramway, and paid tolls to the Company. On 12th November two horses drawing loaded trams were on the tram- way, and Plaintiff walking by their side in charge. Near the crossing the fore horse took fright at an approaching train, rushed through the open gate on to the crossing, and was killed by the train. The case was first tried at Grloucester Spring Assizes, before Baron Bramwell, when Plaintiff got a verdict for £35. The Company appealed to the Court of Common Bench. Chief Justice Erie held that " in questions of negligence it is essential to ascertain that there is a legal duty on the party charged and a breach of that duty, and there was no evidence of such duty on the Company in this case. The statute 8 & 9 Vic, cap. 20, sec. 68, which imposes ujDon a railway company an obligation to fence as against adjoining owners^ has no application in such a case as this, the Company being under no obligation to erect a fence separating the rail- way fi-om the tramway, both being their property." Justices Williams and Byles, however, held that there was negligence,, and that the gate should have been shut. Judgment against Company. — Tried in Court of Common Bench, June 5, 1860. — Law Times, vol. 2, page 629. 604-. Manchester South Junction and AUrinchaTii Rail- way Company v. Fullarton. — Action to recover damages for alleged negligence and misconduct on the part of the Company's engine-driver in discharging steam through the mud cocks of one of their engines on their line at a level crossing, in conse- quence whereof the Plaintiff's horses took fright, ran away with PERSONAL INJURY. 903 and broke the carriage to which they were harnessed, and injured themselves. This was near to Altrincham Station, where the Company's line crosses on the level a turnpike road. The County Court Judge found a verdict for Plaintiff for £40, against which the Company now appealed. On the appeal case Chief Justice Erie said — "I am of opinion that the evidence abundantly shows that the Company, by their servants, exercise their right of crossing the highway in an inconvenient and improper manner whilst near the gate which separates the railway from the road. The driver blew off the steam from the mud cocks in front of the engine so that the Plaintiff's horses became enveloped therein and frightened, and so became unmanageable. It is clear that the Company have not used their railway with that attention to the rights and safety of the Queen's subjects which, under the circum- stances, they were bound to exercise. The Company having thus been guilty of culpable negligence, the decision of the County Court Judge must be affirmed." Judgment against the Company. — Tried in the Court of Common Pleas, April 29, 1863. — From Scott's Common Bench RepoHs, vol. I'^^jjage 54. 605. Condon v. Great Southern and Western Railway Company. — Action for personal injury. Plaintiff was a dairy- maid to Mr. Hewson, and her deceased husband was herd to the same master. Both her husband and a son fourteen years of age were killed crossing the Company's line on the 26th July, 1863. She had recovered £400 damages for the loss of her husband. She now claimed damages under Lord Campbell's Act for the death of her son, who had never earned any wages, but whose capabilities were valued at 6d. per day. The pro- bability that he would have enabled his mother to earn more, or would have devoted part of his earnings to her support, was held to be evidence to go to the Jury upon the question of damages, the probability being increased by the past filial conduct of the deceased. On the first trial the Jury found £10 damages for the Plaintiff. On the appeal case it was decided that there was evidence to go to the Jury in this case, and con- sequently the verdict against the Company was not disturbed. Judgment against the Company.— Trieri in the Court of Ex- 904 PERSONAL INJURY. chequer (Ireland), 29th May, 1865. — From Irish Common Laiv Reports, Neiv Series, vol. 16, page 415. 606. Stubley v. London and North Western Railway Company. — Action by a husband, as administrator, for the death of his wife, who was killed by an express train at a public foot- path crossing. The crossing over the line was close to Batley. The view along the line in one direction was obscured beyond thu'ty yards until the person stood within two or three yards of the rails, when there was a view for 300 yards. There were notice boards each side of the path with "Beware of the Engine" on them. Deceased, a mill hand, was crossing to her work. A goods train had just passed in one direction, and deceased attempted to cross, when an express train coming in the other direction killed her. A man near shouted to her, but the poor woman was deaf, and probably did not hear the man or the train coming. The case was first tried before Justice Blackburn, at the Leeds Summer Assizes. The Judge told the Jury the Legislature had authorised the Company to cross this path with their railway on a level, and had not re- quired a foot-bridge ; that it might be assumed that the Com- pany should take reasonable precautions ; and that it was a question for them whether or not there should have been a watchman at the crossing to warn persons. The Jury found that a watchman was a reasonable precaution, and that it had been neglected. Verdict for Plaintiff. Leave was reserved to the Company to move to set aside the verdict and enter a non-suit on the ground that there was no evidence of negligence on the part of the Company to be left to the Jury. On the appeal case Baron Bramwell said — " I am of opinion this rule should be made abso- lute. It is easy to use general expressions about negligence, but the question is — What is it alleged the Company ought to have done ? It is answered — They should have had a person to warn the people. Look at the facts of the case. A person coming down to the rails and contenting himself, in the first instance, with just walking to the edge, without putting his foot on the line, could see up and down nearly 300 yards, a distance of about one sixth of a mile. The train would come up that distance in about forty seconds, and a man walking PERSONAL INJURY. 905 about three miles an hour would cross the line in about four seconds ; thus he would cross the line ten times from the time when the train first appeared until it came up, and, allowing a woman double the time, she could cross it five times. Is it necessary, under such circumstances, that any person should be placed there to warn people of what they could see for them- selves ? But it is said two trains meet at this very point. Is it reasonable or possible that trains should be timed so as not to do so ? and what could a watchman have done but give warning of what everyone accustomed to crossing a carriage road knows, or ought to know, namely, if you cross a road immediately after a carriage has passed you on your own side, you take the chance of finding something coming the other way ? What this woman really did seems to have been this — she seems to have forgotten the possibility of the existence of any other train than the luggage train, and directly it was out of the way to have crossed. Under these circumstances it seems nonsense to say that the public can impose any such duty as that suggested. One is sorry for the particular case, but I protest that I sincerely believe that more mischief would happen from so attempting to take care of persons who ought to take care of themselves. There is no part of a line where people's improvidence may not put' them in danger, and a watchman cannot be kept everywhere. Besides, are there to be no unexpected trains, no special engines, the times of wliicli the watchman would not know, though he would those of the ordinary trains ? Then, if he did not warn a person, he would cross as a matter of course, and the very precaution adopted might prove fatal. One word as to the case of Bilbee v. London Brighton and South Coast (IS L. T., 146). I cannot treat that as an authority to govern the present case. It establishes no precise rule or precedent, and the Judgment seems to guard against its being considered to do so. If a railway be so con- structed that, either from the abruptness of the curve or some other reason, a person cannot see a train coming, some measure of precaution on the part of the Company may be necessary. That is the gi-ound on which BUbee's Case stands, but here there were no such reasons for precaution." Chief Baron Pollock, Baron Channel], and Baron Pigott concurred. Jiulg- 906 PERSONAL INJURY. ment for Company. — Tried in Court of Exchequer, Nov. 18, 1865. — From Lcav Times Reports, vol. 13, page 376. 607, Bilbee v. London Brighton and South Coast Rail- way Company. — Action for £60 for personal injury from being knocked down and run over by a train at a level crossing. The crossing was near Thornton Heath Station, on the Croydon and Buttersea branch. The crossing was for horses and carriages, and the main gates were kept locked, and opened by an atten- dant as required. There were swing gates at the side for foot j)assengers, kept unlocked, and no attendant was kept to warn foot passengers that trains were expected. Over a hundred trains a day passed over the crossing. In one direction there was a curve, and in the other direction, about 150 yards distant, there was a bridge, so that the view in both directions was limited. Plaintiff was deaf, and did not hear the noise of an approaching train. A train was coming in each direction when he was crossing, and one knocked him down. Since the accident the Company had placed an attendant in charge of the swing gate. The case was first tried before Chief Justice Erie, at the London Sittings after Hilary Term, and the Jury gave a verdict for £60. Leave was given to move to enter a non-suit if the Court should be of opinion that there was no evidence of any breach of duty or negligence on the part of the Company. On the appeal case Chief Justice Erie — " I am of opinion this rule should be discharged. I am fully impressed with what has been said by the Company's counsel, that the Court ought to be careful not to impose any burdens on a rail- way company that are not imposed upon them by Act of Parliament ; and I do not say that railway companies must keep servants at every crossing, but at this particular crossing there were circumstances of peculiar risk for foot passengers. A hundred or more trains passed the spot in the day, and there was a curve, and also a bridge, which impeded the sight and prevented persons from seeing trains which were coming at any distance. I cannot say, therefore, that there was no evidence of negligence for the Jury." Justice Byles, Justice Keating, and Justice M. Smith concurred. Judgment against Com- pany. Statutes referred to relating to level crossings over high PERSONAL INJURY. 907 roads— 2 & 3 Vic, cap. 45, sec. 1 ; 5 & 6 Vic, cap. 55, sec. 9 ; 8 & 9 Vic, cap. 20 (the Eailway Clauses Consolidation Act, 1845), sees. 46, 47.— Tried in Court of Common Pleas, May 9, 1865. — From Law Times Reports, vol. 13, page 146. 608. Stapley v. London Brighton and South Coast Railway Company. — Action by executors for death of John Stapley, killed by an express train at a level crossing close to Portslade Station, on Brighton and Worthing branch. The line at the crossing is rather on an incline, and trains run at a high rate of speed, and they do not whistle when passing. It is a public highway, with carriage-way and foot-way ; there are swing gates across the carriage-way, and swivel gates at the side for foot passengers. Deceased was deaf. The express was four minutes late. The train is visible six to seven hundred yards from the crossing. The former attendant to the gates had been killed, and the regular station-master was absent from illness, and the relief station-master was attending to the station and the gates. The deceased was seen on the crossing when the express was 150 yards off, and the man who saw him shouted, but deceased paid no attention, and the train struck and killed him. There was no whistle until either a second or two before or at the moment of the accident. One of the swing gates was a little open, and whether he passed through it or through the swivel gate is not known. There was no evidence who opened the gate, but it had been seen closed half an hour before the accident. The case was first tried July 1, in London, before the Lord Chief Baron, when a verdict was given for Plaintiffs ; and a rule was obtained to set aside the verdict on the ground that it was against the weight of evidence, and that there was contributory negligence on the part of the deceased, and that there was no evidence to go to the Jury of negligence on the part of the Company. On the appeal case Baron Channell said — " The rule was argued before the Lord Chief Baron, my brother Pigott, and myself. We are of opinion that the rule should be discharged. The deceased was run down at a station on the Company's railway. At the station or close by were a carriage-way and a foot-way which crossed the line on a level. On each side there were 908 PERSONAL INJURY. swing gates ; it did not appear whetlier these, when shut, had any fastening or not. The express was four minutes late, and the deceased was crossing somewhat transversely. It was con- tended that, being deaf, he should have looked about him and taken more care, and should have kept the direct path. How- ever, as before stated, we see no reason on these grounds to interfere with the verdict. It was argued that whatever obligation was imposed by statute (46th section of the 8 & 9 Vic, cap. 20) or by the regulations, it was intended for the protection of carriage passengers, and not foot passengers. But suppose this had been the case of a carriage passenger: there was no gateman there, and, although a train was due, the gate was open as if none were due. There is no doubt a carriage passenger would have a right to complain of this as negligence ; and the Court are of opinion that, where this kind of invitation is held out to a foot passenger, it is evidence of negligence on the part of the Company that ought not to be withdrawn from the Jury. Although the Legislature has authorised the Company to cross a public highway on a level, it has not exempted them from the use of due and ordinary care." Chief Baron Pollock concurred. Judgment against Company. - — Tried in Court of Exchequer, November 14, 1865. — From Laiv Times Reports, vol. 13, page 406. 609. Wyatt V. Great Western Railway Company. — Action for personal injury, occurring in going over a level crossing with a horse and carriage at night time. The level crossing was situated at Chipping Campden, over a turnpike road. The gates were so constructed that, after being opened to form a passage along the turnpike road, they flew back and closed themselves across the road to protect the railway. Plaintiff, on driving up to the closed gates, waited a long and reasonable time, but no Company's servant came to open the gates ; he then got out of his conveyance, led the horse and carriage through the first gate, and opened the second gate. He was then getting into his carriage to drive through the second gate, when it flew back and shut itself, and in so doing struck the horse with great violence and drove it back, causing the horse to swerve suddenly round and become unmanageable, PERSONAL INJURY. 909 whereby the Plaintiff was thrown out of the carriage upon the railway, and received injuries as aforesaid. Judgment was given by Chief Justice Cockburn, who said — " I am of opinion the Judgment must be for the Company. The Eailway Clauses Act amounts virtually to a prohibition to individuals from passing over the railway under the circum- stances in this case. Parliament authorises a railway to pass over a highway and to obstruct the public highway ; thus it is an obstruction created by the Act. When circumstances require the gates to be opened, and justify their being opened with regard to safety, the company's servants shall open them and close them ; otherwise they shall be left, according to the express language of the section, constantly closed. I take that to be a prohibition to the public to open the gates or pass across the railway. It appears to me the Plaintiff was clearly in the wrong in opening these gates and endeavouring to cross the railway. I do not mean that he has not his remedy if the statutory duty of the Company is not fulfilled, and a person in attendance to open the gates at fit and proper times. If he chooses to open the gates and take upon himself the risk of crossing the railway, he is not to be allowed to bring an action against the Company and recover damages. It seems to me the damage the Plaintiff incurred is too remote a con- sequence of the breach of duty on the part of the Company, and for which they cannot be held liable." Justices Crompton,. Blackburn, and Shee concurred. Judgment for Company. — Tried in Court of Queen's Bench, June 6, 1865. — From Law Journal Reports, vol. 34, jMge 204. 61 0. Lunn v. London and NoHh Western Raihvay Com- pany.— Action for £100 foi the death of a horse, injury to a second horse, and destruction of a cart, caused by a train running into them at a level crossing. The crossing was at Bank Quay, on the Mersey, between Warrington and Garston Stations. The railway crossed a public road diagonalfy. On one side, in addition to the gate across the public road, there was another gate which was a private entrance to Crossfield's storeyard. Thus on one side there was a single gate over the public road, and on the other side two gates, as before described. Access ta 910 TERSONAL INJURY. Crossfield's storeyard was across the level crossing at right angles to the opj)osite gate. The level crossing was thus a public road, and, as far as access to and from Crossfield's store- yard was concerned, a private road. On the 23rd November Plaintiff's carman had unloaded his lorry in Crossfield's store- yard, and had opened Crossfield's gate, and was about to cross the line. The opposite gate being nearly shut, he hailed the ■Company's gatekeeper, M'Grrath, who was at his post, to know whether the line was clear. M'Grath, as Plaintiff's witnesses •said, replied " Yes, come on." The carman started his two horses and cart, but as soon as they got on the line a train came up, and the accident occurred. The Company's witnesses maintained that M'Grrath was calling to the driver of a luggage train to go on, and not speaking in answer to the carman. The case was tried before Justice Smith, at the Liverpool Summer Assizes, 1865, when the Jury returned a verdict for Plaintiff for £100. This was the second trial, and on both occasions the Jury found for Plaintiff. Leave was reserved to the Company to move to enter a verdict or non-suit if the Court should be of opinion there was no evidence to charge the Company with negligence. On the appeal case Justice Blackburn said — " I am of opinion that as to both points the rule should be discharged. The question of fact is whether the accident was attributable to the negligence of M'Grath, or whether Plaintiff's carman contributed to it by his want of caution. The Jury found that M'Grath said 'Yes, come on.' If that was so, M'Grath ought reasonably to have known whether the line was clear and safe, and he was guilty of negligence." Justice Mellor said — " I am of the same opinion. The only real question is as to the construction of the statute 8 & 9 Vic, cap. 20 (Kailway Clauses Act). Section 68 applies to private ways, and section 37 to public roads. Whether or not does the statute impose on railway companies the naked obligation of opening and shutting the gates when the line crosses a public road on a level ? If the language of the section is not to be extended beyond its literal meaning, it would lead to a great absurdity, for the gates are to be kept constantly closed except when horses, &c., passing along the public road shall have to cross the railway ; so that, literally, the Company's servants are PERSONAL INJURY. 911 to open the gates and allow horses, &c., to cross the railway without regard to whether they will be smashed to pieces or not by a coming train. The language must have a reasonable construction, and it is clear that it was meant that it was to be the duty of the gatekeepers to exercise their judgment as to whether it was safe or not to open the gates. It was then con- tended that, whatever might be the rule as to gates upon a public way, the same rule would not apply to gates upon a private way. 'Wliether that be so or not generally, we are relieved from the inquiry in this case. Here is but one gate, under the control of the Company's gatekeeper, across both the public and private way. In my judgment they cannot diminish their obligation as to opening and shutting this gate, according to their judgment and discretion as to whether it is safe or not to do so, in the case of persons or cattle wanting to go to or from the private road only. I think the duty of the gate- keeper is the same in both cases." Justice Lush concurred. Judgment against Company. — Tried in Comi of Queeoi's Bench, February 10, 1866. — From Laiv Times Reports, vol. 14, page .225. 61 1 . James v. Great Western Railway Company. — Action for £200 compensation for injuries sustained owing to Plaintiff having been knocked down by an engine at a level crossing near Swansea. The Plaintiff was a labourer employed at Messrs. Dillwyn's spelter works near Swansea. Near these works there was a continuous level crossing over the Company's (Great Western) line and over the Swansea Valley railway, with a very small space between. Between 6 and 7 a.m. Plaintiff, with another man, was going to his work, and had to cross the level crossing footway. He had crossed the Swansea Valley main line and the Company's down line, but just as lie stepped on the up line he was knocked down and severely injured by a pilot engine of the Defendants'. The engine was running tender first, and the evidence was contradictory as to any engine light being exhibited. The morning was dark and foggy, and there was smoke over the line, partly from tlie spelter works and partly from an engine that had just passed on the Swansea Valley railway. The man accompanying 912 TEKSONAL INJURY. Plaintiff passed over safely. The Swansea Valley engineman whistled, seeing the two men, and the pilot engineman whistled in reply, but this whistle was after the accident. The case was first tried at the Glamorganshire Assizes, before Baron Pigott, and Plaintiff obtained a verdict for £200 damages. The Com- pany appealed, on the ground that there was no evidence of negligence on the Company's part to go to the Jury; and, if there was, they claimed a new trial, on the ground that the verdict was against the evidence. On the appeal case Justice Willes said — " I concur with the Chief Justice (Bovill) there was evidence of negligence to go to the Jury. The Company were bound to use their right of working their line so as not, by any unreasonable exercise of such right, to interfere with the equal right of other persons. If there was anything which in reason they could do which would have avoided the accident, they were bound to do it. Was there, then, anything which they could have done which might have had that effect ? There was, because notice might have been given by whistling, which might have attracted the attention of the Plaintiff and have saved him from being in the position he was when he met with the injury. It is not necessary to show that the precaution, if resorted to, would necessarily have had the effect of preventing the accident. All that is necessary, I think, to establish negligence is this — that there was a precaution which it was reasonable to resort to, and which, if resorted to, might by its ordinary effect have been the means of preventing the accident; and there was an omission to resort to such precaution." Justice Montague Smith concurred. Judgment against Company. — Tried in Court of Common Pleas, Jan. 30 and Feb. 4, 1867. — From Law Journal Reports, vol. 36, jJtf'Qe 255. 612. Skelton v. London and North Western Railway Com'pany. — Action by a widow for death of her husband, who was run over and killed by a passenger train at a level crossing 200 yards from Walsall Station. Several lines of railway ran across the road. The wicket gate was arranged to swing to, and a ring dropped over it at the toj) of the post, to fasten it when the railway could not be crossed by foot passengers. The ring PERSONAL INJURY. 913 was worked by a lever from a signal box a few yards distant. Deceased, with a man named Bullard, came to the gate about 6 p.m., 14th January, 1867. There was a goods train standing across the road, and Bullard stated the ring was up and the gate free. They waited until the goods train was taken away, and then deceased attempted to cross the rails, when a passenger train on another line of rails knocked him down. He was called to, but, being deaf, did not take notice. The coming passenger train could not be seen owing to the goods train, and owing to the construction of the railway a person at the wicket gate could only see about 20 yards either up or down the railway. The case was first tried by Justice Blackburn, at Gloucester Assizes. The Judge directed a non-suit, but he asked the Jury whether, in their opinion, there was such negligence in the voluntary duty which the Company had taken upon themselves with respect to the closing of the wicket gates as to make that which was intended to be a protection a snare, and so occasioned the accident ; and also whether they thought the deceased could, by reasonable care on his part, have avoided the consequences of that negligence of the Company. The Jury found a verdict for £500. Leave was reserved to set aside the non-suit, and to enter a verdict for the Plaintiflf for that amount. On the appeal case Chief Justice Bovill said — " In this case a non-suit was directed by Brother Blackbuni, and I am of opinion the non-suit was right. Even assuming the ring was up when the deceased came to the gate, it could not have been an indication that the line was clear, for at that very time a goods train was standing there, so that he could not pass over, nor could he see the state of the line. He passed over the space where the goods train had been, and from where he could have seen about 300 yards of the line. It was clear that he did not then look, and that he was deaf and did not hear when he was called to. At the six-foot way he could have seen the line for a distance of 500 to 600 yards, and had he looked he would have seen the train ; but from the time he left the gate it is manifest that he never looked right or left, but went straight on. It is only when the injury is caused by the negligence of the railway company that the action lies against them ; and therefore, assuming that the ring was up and there 58 914 TEllSONAL INJURY. was negligence in this respect on the part of the Company, it appears that the accident did not arise from that, but from the deceased going along without looking to see what was on the line." Justices Willes and Montague Smith concurred. — Tried in Court of Common Pleas, June 7 and 8, 1867. — From Laiu Journal Reports, vol. 36, page 249. 61 3. CumbeHon v. The Irish North Western Railway Company. — Action for personal injmy, resulting from a train, when about a mile from a station called Dromore, running against some cows that were on the line ; the carriage in which the Plaintiff and his wife rode was thrown off the line, and the wife was seriously hurt. It appeared cattle had got on the line through one of the gates of a private level crossing. Just at the place where the accident happened there was a cutting about 50 or 60 yards from the crossing, but the crossing could be seen at a distance of about 300 yards, and there was an incline of 1 in 150 at the spot. The private crossing was for the accommodation of a man named Wilson. The driver could not stop the engine in time. On the first trial Justice Morris told the Jury that although the supervision to be exercised by the Company over a crossing j such as that where the accident happened had to be of a veryi different nature from that to be exercised over a public crossing, still he did not think that the Company were entitled to say i that they were relieved from all supervision over it. The Jury found a verdict against the Company for £50 1 damages. On the appeal case Chief Justice White said—" In dis- j chai'ging this case we decline to lay down any general abstract I principle. Our Judgment rests upon the facts of a particular ] case, and upon the form of the objections taken. The objec-^ tion taken was that no obligation lay upon the Com^jany to| exercise any supervision over the crossing, whereas we are of] opinion that there must be a general supervision exercised] over the whole line, and that this extends to private crossings as well as to every other part of the line. Now here better evidence has been given on the part of the Comj)any than of the Plaintiff that in consequence of the Company not having PERSONAL INJURY. 915 exercised such supervision the gate of this level crossing was open and unguarded just at the time a train was due, and that a man passing at the time drove some cattle on the line, and that the train coming by at the moment ran against the cattle. It was proved that the gate posts were broken, and the person entitled to the level crossing said that he knew nothing about keys. These circumstances, with others of a like natm-e, show that more supervision should have been exercised than was in fact exercised by the Company." The other Judges concurred. Judgment against the Company. — Tried in the Court of Queens Bench (Ireland), May 5, 1869. — From Irish Reports, Comnton Laiv, vol. 3, page 603. Ql^. Gliff V. Midland Railway Company. — Action for personal injury at a level crossing at Mantel Lane, Leicester- shire, to a girl ten years old, who was carrying dinner to her father, a working man at a neighbouring colliery. It was an occupation road which crosses the Company's line on a level. There were gates across the road left unfastened. The Company at one time kept a gatekeeper, but had ceased to keep one some time before the accident. About three years before the acci- dent the Company had obtained powers under an Act to make a new road and discontinue the level occupation road. The powers of the Act were to be exercised within five years and then to cease, and nothing had been done to the road till after the accident. The Jury on the first trial negatived negligence in the driver of the engine of the train that knocked the child down, but found for the Plaintiff on the ground generally of " negligence as to the crossing." The Judge, in summing up, had left to the Jury as evidence of negligence in the Defendants the omission to keep a gatekeeper and the omission to exercise the powers of their Act. Verdict against the Com- pany for £250. On the appeal case Justice Lush said — " I think that the direction of the learned Judge is faulty, inasmuch as it leaves it open to the Jury to find a verdict against the Company either upon the ground that they had omitted to divert the road or on the ground that they had taken away the gate- keeper. There being no obligation arising out of the acts of 916 PERSONAL INJURY. the Company, and no obligation imposed by their statute, I am unable to see any duty whatever, and if there was any duty the omission of what they were not bound to do cannot be a ground of complaint." A rule for a new trial. — Tried in Court of Queen'' s Bench, February 3, 1870. — From Law Reports, vol. 0, jpage 258. 615. Patchell V. Irish North Western Railway Company. — Action for personal injury, owing to a train coming in collision with two cows which were crossing the line between Dromore and Trillick. The carriage in which Plaintiff was seated received a severe shock, and was thrown off the rails and dragged a considerable distance, and Plaintiff sustained severe injuries, resulting from the accident. The level crossing led from a bog to the public road, and there was a stile at the side of the gate next the bog through which the country people were in the habit of passing. The Company originally had a watchman on this part of the line, but he had been withdrawn some time previous to the accident, and the keys of the gates given to the owner of the crossing. A public crossing and two other private crossings were situated within 500 yards from the place where the accident occurred. A female gatekeeper was employed by the Company at the public crossing. A witness said he saw no lock or key on or at the gate, and had frequently seen the gate without a lock ; also that the post to which the gate should be locked was loose. On the first trial, at Londonderry Summer Assizes, 1870, Chief Justice Monaghan non-suited the Plaintiff, with leave to appeal, and assessing the damages, if recoverable, at £75. On the appeal case Chief Baron Pigott and Baron Deasy held that there was evidence of negligence on the part of the Company to go to the Jury. Baron Fitzgerald held that in the absence of any evidence that the gate was open in conse- quence of the looseness of the post, or of the post having been loose previous to the occasion, the Plaintiff was properly non- suited. Baron Hughes held that in the absence of evidence as to the nature or degree of the looseness of the jiost, or of the length of time during which it was loose, there was no evidence of negligence on the part of the Comimny to be left PERSONAL INJURY. 9| 7 to the Jury. The Court being divided in opinion, no order was made to set aside the non-suit, which amounted to a Judgment for the Company. — Tried in the GouH of Exchequer {Ireland), January 27 and 28, and Feh^uary 5, 1871. — From Irish Reports, Common Law, vol. 6, page 117. 616. Wanless v. North Eastern Railway Company. — Action for personal injury from being struck by a train at a level crossing. Plaintiff, a lad of fourteen years of age, came to the level crossing gate, north side, close to Hylton Station, between six and seven in the evening. Shortly before a horse and cart had passed over, and the gate on the north side had not been closed afterwards, and remained open when the lad came to the spot. There were also side gates for foot pas- sengers. As the lad reached the railway a train was passing on the south rails, and he waited beside the north rails until it had passed, and then stepped on to the north rails to cross, when a train coming in the ojjposite direction on the north rails knocked him down and caused the injuries. The lad, from where he stood, could have seen the north train approaching for half a mile had he looked. There was a man in charge of the crossing, but he was on the south side of the gate, where his hut was located. The case had been tried in the Court of Queen's Bench, which gave a decision against the Company, and hence the Company now appealed to the Exchequer Chamber. Chief Baron Kelly said — " The only question before us is — Was there any evidence to go to the Jury of negligence on the part of the Company ? The majority of the Court were of opinion that the gates should only be left open when no trains were expected, and that whenever the gates, or either of them, are left open, it is an intimation to the public who may have to cross the railway that they can pass in safety. I am far from saying that the circumstances proved at the trial were not evidence of contributory negligence ; but we are not called upon to determine any quf;stion of contributory negli- gence. I cannot say that anyone crossing a railway ought not to look upon one side and upon the other to see whether a train is approaching." Barons Channell and Pigott concurred. Justices Smith and Byles also concurred. Justice Keating 918 PERSONAL INJURY. said — " If there was no duty to shut the gates at the time in question, then I agree with my brother Bramwell that I see no evidence here of negligence on the part of the Company that could be said to contribute in any way to the accident. But it appears to me that it was the duty of the . servants of the Company to have the gates shut at the time the two trains, or about the time the two trains, were passing." Baron Bramwell dissented from his learned brothers, and thought the Judgment should be for the Company. " It was said that the Company were under a duty to keep the carriage gates closed. I am of opinion that they were not under any absolute duty to do so. They are under a relative duty only. They are under a duty to keep them closed with the object which is stated in sec. 47 of the 8 Vic, cap. 20. They are to keep the gates closed except during the time when horses, cattle, carts, or carriages passing along shall have to cross the railway, and the gates shall be so constructed as, when closed, to fence in the railway and prevent horses or carriages passing along the road from entering along the railway. No horse or carriage being in sight along the road, it was unneces- sary to keep the gates closed to prevent them from entering on the railway. What probably happened was that a cart had gone over the ci'ossing, that the gatekeeper was on the side at which the cart had left the railway, that he shut the gate there, that he could not cross to the other gate on account of the train that had first passed on south side, and there being no immediate necessity to shut the gate, no other cart being in sight, it was left open, as the Plaintiff's witnesses say. Therefore there was no evidence of anything wrong, either wilfully or negligently. I am of opinion that the gate might properly be oj)en if no cart or carriage or horse was in sight." Judgment against the Company, the majority of the Judges being against them. — Tried in Court of Exchequer Chamber, May 10, 1871. — From Law Times RepoHs, vol. 25, jjage 103. The Company then appealed to the House of Lords, when Lord Cairns (Lord Chancellor) said — " This case may be useful if it leads to companies properly performing the duties cast on them by law of keeping gates at level crossings closed in times of danger. The only question raised in the case for our PERSONAL INJURY. 919 determination is whether there was here evidence of neo-H- gence to go to a Jury. The circumstance that the gate was open at the time amounted to a statement to the public that the line was safe to cross, and a person going inside the gate with a view of crossing the hne may well be supposed by a Jury to have been influenced by the fact that the gate was open. To say the boy might have seen the other train only comes to this, that being brought on to the line by the fact that the gate was open, and finding himself stopped by a train, he became embarrassed, and did not use his faculties as clearly as he might have done. The question is — Might not a Jury well consider that he was on the line through the negligence of the Com- pany? It appears there was evidence that the Eespondent was on the line in consequence of the gate being open, and I am of opinion that the question of negligence was rightly left to the Jury." Lords Chelmsford and Selborne concurred. Judgment against Company. — Tried in the House of Lords, Ajpril 20, 1874. — From Laio Journal Reports, vol. 43, page 18o. 617. Rogers V. Rhymney Railway Company, — Action for personal injury, whereby the Plaintiff's wife, while in the act of crossing the rails to a platform on the other side by a path which the Defendants had always allowed passengers to use for that purpose, was knocked down and killed by a train of the Company which had been suddenly, without any warning, driven backwards along the line of rails whilst she was crossing. This occurred at Walnut Tree Bridge Junction, where deceased got out and proceeded to cross over to the Taff Vale Kailway platform, a distance of about 30 yards. On the first trial the Jury returned a verdict of £150 against the Company, leave being given to appeal. On the appeal case Chief Baron Kelly said — " I am of opinion our Judgment must be for the Plaintiff. I thought at the time the rule was granted that there was another way of crossing the railway by means of a bridge, and that it was not the practice for passengers to cross where the deceased did. Now, however, I find that there was a way where the deceased went across the rails actually made, and which had 920 PERSONAL INJURY. been nsed for a long time. It was, in my opinion, properly left to the Jury by the learned Judge, whether passengers had used this crossing habitually, and whether deceased was lawfully on the spot where she met with her death. Both these ques- tions the Jury answered in the affirmative. The next question was — Was she crossing at a proper time, and had the Company allowed her a reasonable time to cross ? and this also the Jury found in favour of the Plaintiff. I think the verdict should not be disturbed, as there was sufficient evidence of negligence on the part of the Company to justify the Jury in finding as they have done." Judgment against the Company. — Tried in the CouH of Exchequer, June 11, 1872. — From Law Times Reports, vol. 26, page 879. 618, Oliver V. North Eastern Railway Company. — Action for injury to a four-wheeled dogcart passing over a level crossing, in consequence of the rails being too high above the level of the road, whereby the hind wheels of the cart were caught by the rails and the carriage was torn in two. The Company contended that the level crossing had been constructed before any of the Company's special Acts of Parliament were passed ; but this particular part of the railway was expressly mentioned in the Acts, and the Company contended that they were in the same position as if the level crossing had been origi- nally constructed under the express sanction of an Act of Parlia- ment, and that no duty was imposed on a railway company to keep in repair a public highway. Justice Blackburn said — " It was held in Rex v. Kerrison (3 M. & S., 526) that where persons were authorised by statute to create what would otherwise amount to an indictable nui- sance, such as making gates across a highway, they were bound, without any express enactment, to put and keep up for the pub- lic a proper substitute for the old way, such as a bridge. The principle of that case is expressly in point." The other Judges concurred. Plaintiff consequently retained the verdict for £20 given him by the Jury on the first trial. — Tried in the Court of Queen's Bench, May 8, 1874. — From Law Reports, Queen's Bench, vol. 9, page 409. 619. Williams v. Great Western Railway Company.- — Action for £250 for personal injury to a child four years and PERSONAL INJURY. 921 eight months old, whose foot was cut ofif by a train. The child lived with its parents three or four hundred yards from a level crossing over a carriage road, and thirty yards beyond the level crossing the line crossed a public footpath. There was no gate or gatekeeper at the level crossing nor stile at the footpath. The child had been sent on an errand to an adjoining house, and was shortly found crawling on the rail- way near the footpath with his foot cut ofif. The case was first tried at Denbigh, before Justice Keating, who directed a non-suit on the ground that there was no evidence of negli- gence on the Company's part. If the Court of Appeal should hold the Company liable, then the damages were assessed at £250. On the appeal case the Court held that the fact of the absence of a gate or stile at the footjaath level crossing, and the fact of the Plaintiff being found injured there, were sufficiently connected to afford evidence for the Jury of liability on the part of the Com})any. The absence of gates and gate- keeper at the carriage road and stile at the footpath was a breach of the 8 Vic, cap. 20, sees. 47 and 61. Judgment against Company. — Tried in Court of Exchequer, January 24 and April 16 and 17, 1874. — From Laiu Journal Reports, vol. 43, page 105. 620. Ellis V. Great Western Railway. — Action for per- sonal injury sustained at Bloomfield level crossing, where Plaintiff was knocked down by a train. Plaintiff approached the crossing about 9.30 p.m. on a dark night, December 17, 1871. The Bloomfield crossing is near Tipton, and tlie railway runs between Wolverhampton and Dudley. On getting to the gate Plaintiff heard a down train coming, and waited until it had passed ; he then walked over the down line, and was in the centre when the engine of a train going on the up line to Dudley struck him on the left arm, knocked liim down, and he said his leg was smashed flat. Plaintiff deposed there was no light or gas to light the crossing, and he saw no light on the engine or train by which he was knocked down. The road gates were both locked, and only the wicket gates open for foot passengers. The crossing man deposed tliat Plaintiff was tipsy and staggering, and he called out to liim ■922 PERSONAL INJURY. for God's sake to keep back, as the up train was coming ; he had his lamp in his hand, and could see the Plaintiff seven or eight yards off. The case was first tried before Justice Grove, at Stafford Summer Assizes, 1872, when the Judge directed the Jury there was some evidence of negligence for their con- sideration. A verdict for £350 was given. The Company appealed, and on the appeal case four Judges — Bramwell, Mellor, Pollock, and Amphlett — held there was no evidence of negligence, while Chief Justice Cockburn and Baron Cleasby held there was. Baron Bramwell said — " I am of opinion there should be a venire de novo in this case. I think there was no evidence to go to the Jury. In my judgment, the railway being straight, things on it visible for a quarter of a mile in one and half a mile in the other direction, nothing to impede the view or make a difficulty for the foot passengers crossing the line, nothing was necessary to be done by the Comj)any. The sight and sound of the approaching trains were enough warning. I think that proper precautions are not negatived here by the evidence." Judgment for Company. — Tried in Court of CoiiiTnon Pleas, May 11 and June 24, 1874. — From Law Journal Reports, vol. 43, jpage 304. Where a Eailway Company Issues a Through Ticket, and A Through Contract is thereby Made, and the Con- tracting Company is or is not Eesponsible for Personal Injury to Passengers on the Kailways of OTHER Companies. Case No. Blake v. Great Western (I8G2) ... 621 Ayles V. South Eastern (1868) ... 622 Buxton V. North Eastern (1868) 623 Thomas v. Bhymney (1871) Wright v. Midland (1873) BurU V. South Eastern (1879) .. Case No. 624 625 626 621, Blake v. Great Western Railway Company. — Action for personal injury. On 2nd December, 1859, Plaintiff, a passenger through-booked from London to Milford Haven, was in a train which, after passing Gloucester, came in contact with a locomotive engine on the South Wales Eailway. The engine had been negligently left in the way. There was no PERSONAL INJURY. 923 negligence proved by those driving the train. The Company contended there was no negligence on their part, and they were not liable ; and that the carriage of passengers was dififerent to the carriage of goods, and that in the former case they were not insurers. The case was tried before Baron Martin, and a verdict given for Plaintiff. The Company appealed to the Court of Exchequer Chamber, when Chief Justice Cockbum gave Judgment. He said — " I am of opinion the Judgment should be for the Plaintiff. It has been settled by the authority of several cases that when a company makes a contract for the conveyance of goods extending over other lines, the company so contracting is liable for loss on the other lines, and I think that that principle applies in the case of passengers as well. I think the contracting company incurs all the responsibilities and liabilities, the same as if the contract were confined to the company's own line. The com- pany are bound to maintain their line in proper condition, and to use due and reasonable care." Justices Wightman, Crompton, Byles, Keating, and Mellor concurred. — Tried in the Exchequer Chamber, February 10, 1862. — From Law Journal Rejjorts, vol. 31, page 346. 622. Ayles V. South Eastern Raikvay Company. — Action for £80 for personal injury arising from a collision. Plaintiff was a passenger, Deptford to Charing Cross. When the train in which he travelled approached Cannon Street Station, it was stopped outside the station, waiting for "Line clear,"' and another train (owner not specified) ran into the standing train, and Plaintiff was hurt by the collision. The Company contended that other companies besides themselves had running powers over this line. Plaintiff offered no proof as to how the accident happened, nor as to whether the offending train belonged to the Company or was under their control. The case was first tried before Chief Baron Kelly, London Sittings after Hilary Term, 1867, when the Jury gave a verdict for £80 in favour of Plain- tiff. The Company appealed, and on the appeal case Chief Baron Kelly said— "I am of opinion that it is to be presumed, in the absence of evidence to the contrary, that the offending train either belonged to the Company, who are owners of the 924 PERSONAL INJURY. railway, or was under their direction and control. A railway company is responsible for the safe conduct of trains within its own premises, and in case of collision there is prima facie a case of negligence against the company, who have the control over them. It is contended that where there are ' running powers ' there is nothing to show that the train which did the mischief does not belong to one or other of them. The owning company alone know to whom any particular train belongs, and the times and other regulations of its running must be fixed by arrange- ment with them. I thought on the first trial the evidence of negligence was slight, but it was for the Jury to say whether the accident might have been prevented." Barons Martin and Pigott concurred. Verdict against Company. — Tried in Cortrt of Exchequer^ April 28, 1868. — From Law Reports, Exchequer, vol. 3, page 147. 623. Buxton V. North Eastern Railway Company. — Action for personal injury. Plaintiff took a second class ticket, York to Tamworth. When the train was within a mile of Eckington Station, on the Midland Eailway, it came into colli- sion with a bullock that had strayed on the line, and Plaintiff was injured. The bullock had forced its way through a quick- set hedge strengthened by posts and rails. A post, found to be decayed at a part below the ground, yielded to the weight of the bullock and broke. The fences had only been lately repaired where observed to be defective. The Company con- tended the accident occurred on the Midland line, and they were not liable ; and that reasonable care was taken, and no evidence of negligence. The case was first tried before Chief Baron Kelly, Staffordshire Spring Assizes, when the Jury gave Plaintiff a verdict for £800. The Company obtained a rule to enter a non-suit on the ground there was no evidence of negligence which ought to have been left to the Jury, or for a new trial on the ground of misdirection in the Judge having directed the Jury that it was negligence in the Company if the fences proved insufficient, and that the breach of the statutory obligation to maintain fences was evidence of negligence. Justice Blackburn gave Judgment. The case of Blake v. Great Western settled the point that the company issuing the ticket PERSONAL INJURY. 925 are responsible, as the contracting company, for accidents on the other company's lines. He held that the Kailway Clauses Act, 8 Vic, cap. 20, sec. 68, imposes no duty on a railway company toivards their passengers to keep up the fences, and that a railway are not bound at common law to maintain fences suffi- <3ient to keep cattle off the line under all circumstances, but are bound to use every reasonable care to prevent them stray- ing on to the line. Judgment for Company, granting a rule for a new trial. — Tried in Court of Queen's Benich, June 16, 1868. — From Lmv Reports, vol. S, page 549. 624". Thomas v. Rhymney Railway Company. — Action for personal injury. Plaintiff took a ticket from Caerphilly to Cardiff. The Company's line ended at Llandaff, from which junction they had running powers over the Taff Vale Railway. Llandaff Station was worked by the Taff Vale Company. Three minutes before Plaintiff's train reached Llandaff the station- master there had sent forward an engine and tender belonging to the Taff Vale Company without a proper tail light. Plain- tiff's train was sent on, and came into colHsion with the engine and tender, which led to the personal injury. The Company contended there was no negligence on their part, and that they were not liable for what occurred on a line not their own. The •case was first tried by Chief Baron Kelly, at the Glamorganshire Spring Assizes, 1869, when the Jury gave a verdict for the Company, with leave to Plaintiff to appeal to enter a verdict for £'450 if the Court above should hold the Company were responsiljle for the negligence of the Taff Vale Comi)any. An appeal was then taken to the Queen's Bench, where the verdict was against the (company, who now appealed to the Exchequer Chamber. On the ajjjjeal case Chief Baron Kelly said — "Independently of tlie decision of Great Western Company v. Blake, where a railway company issues a ticket for a journey in the course of which the train which conveys the passenger has to pass along a portion of a line of railway belonging to another company (whether it be under running powers, or whether it be under any particular contract for a particijKition in profits or otherwise), the contract between the railway com- pany and the traveller to whom such ticket is issued is, ujion 926 PERSONAL INJURY. every principle of law, a contract, not only that tliey will not themselves be guilty of any negligence, but that the passenger shall be carried with due and reasonable care along the whole line from one end of the journey to the other." Judgment against Company. — Tried in Court of Exchequer Chamber, Feb. 4, 1871. — From Laiu Reports, Q.B., vol. Q, page 266; see also Latv Journal Reports, vol. 39, page 141. The Company appealed to the Exchequer Chamber, Feb. 4, 1871, where it was held that Defendants were liable for the negligence of the TafF Vale Eailway Company, and the Judg- ment was affirmed. — From Laiv Journal Reports, vol. 40, page 89, Q.B.; also Law Times RepoHs, vol. 24, page 145. 625 1 Wright v. Midland Railway Company. — Action for personal injury. Plaintiff, on 29th August, 1871, took a ticket at Leeds for Sheffield, and proceeded by the train. Between a quarter and half a mile outside the Company's Leeds Station is Leeds Junction, where the Company have a signal- man. Three companies (the Defendants, the London and North Western, and the North Eastern) run over the Leeds Junction to get to and from the two Leeds stations. When Plaintiff's train was about half-way over the Leeds Junction, it was run into by a London and North Western Company's train.. The signalman (a ]\Iidland servant) gave the driver of the London and North Western Company a signal that he was not to advance to the junction, but this signal was not obeyed,, hence the accident. Plaintiff contended he contracted with the Midland Company for safe transit. The Company con- tended the injury did not arise from any negligence on their part. The case was first tried at the York Summer Assizes, 1872, before Baron Cleasby, who asked the Jury whether, in their opinion, the collision was attributable to the negligent management of the train by the servants of the Defendants, and directed them that if they thought the collision was caused by the negligence of the driver of the London and North Western Company's train in not attending to the signals, the Defendants would be entitled to the verdict ; reserving leave to the Plaintiff, in that event, to move to enter the verdict for him if the Appeal Court should be of opinion the Defendants were PERSONAL INJURY. 927 liable. The Jury found the Defendants not culpable, and assessed the damages at £200 if the Appeal Court should hold that the Defendants were responsible for the negligence of the driver of the London and North Western Company's train. On the appeal case Baron Bramwell said — " If this had been a case of goods damage, the Defendants would have been liable, because they would have been insurers. But here they con- tract no further than that all persons connected with carrying (of passengers) and with the means and aj)pliances of carrying — with the carriages, the road, the signalling, and othei-wise — shall use care and diligence so that no accident shall happen. If they were to contract that everybody should use care and diligence, their duty would extend to strangers. They have no contract that strangers to the railway (if one may use such an expression) shall do nothing wrong, either by wilfulness or negligence. It is said to be a very convenient thing that the Plaintiff should be able to sue those undertaking to carry him, and should not be driven to inquire who it was that injured him and bring his action against that person. But that is really an argument that it is very convenient to be unjust. It is admitted that if the London and North Western Company had been trespassers this action would not be maintainable, but it is said because they have a right to be there, there is some obligation on the part of the Defendants with relation to them which makes the Defendants liable. Now I think there is such an obligation, but only to this extent, that the Defen- dants are bound to use due and reasonable care that the London and North Western Company shall not run into them, and shall do nothing to make the road or the Defendants' carriages unsafe. But the Defendants did their duty in this, for they signalled to the London and North Western train not to come on. A railway is a public higliway upon wliich everybody with properly arranged engines and so forth has a right to go. What would happen if anybody using the line in that way had, under those powers, done this tiling? Would any liability attach to the Defendants? On this illustration they woukl be liable simply because somebody else having the right to use the same road had run into them. If that is so, it would fol- low that if an omnibus ran into a cab the cab proprietor would 928 PERSONAL INJURY. be liable for the damage done." Baron Cleasby and Baron Pollock concurred. Judgment for Company. — Tried hi Court of Common Pleas, January 29 and 30, 1873. — From Law Journal Repoiis, vol. 42, par/e 89. 626. Burke V. South Eastern Raihvay Company. — Action for £200 for personal injury received on the Great Northern Eailway of France. Plaintiff took a coupon return ticket, London to Paris and back. One of the conditions printed in the book of six coupons was — " Each company incurs no responsibility of any kind beyond what arises in connection with its own trains and boats, in consequence of passengers being booked to travel over the railways of other companies." The case was first tried before Chief Justice Cockburn, at Westminster Hilary Sittings, 1879. The Judge left it to the Jury to say whether the Company had reasonably brought to the knowledge of the Plaintiff the conditions of the contract. The Jury decided against the Company on this point, and gave a verdict for £200. The Company appealed, and on the appeal case Lord Coleridge said : — " I will assume, however, that the Plaintiff neither read the con- dition nor knew of its existence, wli ether I think that that is a i)robable or an improbable siijjposition. Then comes the question ^ — Does that aftbrd any answer to the Company's plea ? In my opinion it affords none. The contract, as I understand it, is simply this little book or ticket, and the whole of this little book. This is the contract, and the terms contained in it are the terms upon which the Company agreed to carry Plaintiff. I agree that the case of Henderson v. Stevenson, tried in the House of Lords, would be in point and binding upon us, if the House of Lords had come to the conclusion that in a piece of paper like this the whole of the contract was limited to the first page out of these ten or twelve pages. In the case of Henderson v. Stevenson, on the same side of the card (ticket) on which ' Dublin to Whitehaven ' was printed, there was no reference at all to the other side, and it was said that the one side only formed the contract because there was no reference whatever to the other side upon it ; and the Jury found that the Plaintiff assumed, and had a right to assume. PERSONAL INJURY. 929 that the one side of the card contained the whole of the con- tract. If page 1 and also pages 3 to 11 of the coupon book form part of the contract, on what ground is page 2 to be rejected ? This is part of the printed terms, which, by the ordinary use of his eyesight, the Plaintiff might have seen. What we are virtually asked to decide is in favour of the Plaintiff, because on the first page of the coupon book there is not printed in large letters ' Eead the next page.' " Justice Lindley said — " In Henderson and Stevenson's Case, the House of Lords, in substance, split the ticket in two, and said that there was room to hold that the one side only formed the contract. To my mind it is quite impossible that the ticket, in this case, could be dealt with as the ticket was in Henderson v. Stevenson, and the Plaintiff, therefore, cannot repudiate one part of this contract and claim the benefit of the other part of it." Judgment for Company.- -Triec? in Court of Common Pleas, November 26, 1879. — From Law Times RejpoHs, vol. 4:1, page 554. Actions where Passengers, after Accepting Compensation FOR Personal Injury, Sue for further Compensation. Case No. Roberts v. Eastern Counties (1859) 627 Stewart v. Great Western (1865) 628 Read v. Great Eastern (1868) ... 629 Case No. Lee V. L. S( Y. (1871) 630 Bradburn v. Great Western (I87i) 631 627. RobeHs \. Eastern Counties Railway Company.— Action for personal injury which occurred owing to an accident at Bromley Station. Owing to an error in turning the points, a portion of a train got on one line of rails and the remainder on to another. The train was overturned, and the hat of the Plaintiff crushed. He was not aware at the time that he had been seriously injured, and on arrival in London the station- master suggested that he should have some remuneration for his spoilt hat, and gave him £2, for which he signed a receipt. Plaintiff subsequently found he had been seriously injured, being nervous and sleepless, light-headed, vomiting, &c., and 69 930 PERSONAL INJURY. was obliged to leave business. He had lost bis memory, and was unable to resume bis employment. Cbief Justice Cockburn said — " It surely cannot be seriously urged that if the Plaintiff has been seriously injured he is pre- cluded from recovering because he accepted £2 for his hat." Verdict, £250 damages against the Company. — Tried at Nisi Prius, Hilary Term, 1859. — From Foster and Finlason^s Nisi Prius Beports, vol. 1, page 460. 628. Stewart v. Great Western Railway Company. — Action for personal injury. On 3rd August, 1864, Plaintiff and his wife were passengers on Defendants' railway from Crumlin to Worcester in an excursion train. A collision occurred at Pontypool, when Mrs. Stewart's leg was broken, and Plaintiff received injuries in his head, chest, and back. Three doctors attended, and prevailed upon Plaintiff to accept £15 for com- pensation, and to sign a receipt in full of all sums that might be claimed by them for damages. Plaintiff professed he did not know at the time what he afterwards discovered — that these gentlemen were employed by the Company as agents to settle, and that he had been deceived, the amount of compen- sation being grossly inadequate. Plaintiff commenced an action for £1,700 damages, to which the Company pleaded not liable and the receipt of the £15 in full satisfaction. Plaintiff then brought the case into the Court of Chancery (Vice- Chancellor Kindersley's Court) to restrain the Company in equity from pleading the receipt of £15 as full satisfaction to his claim for damages. Vice-Chancellor Kindersley said — " This Court will prevent that instrument (the receipt) being used as an impediment to the recovery by Plaintiff of such damages as he may be entitled to, supposing that instrument had never been executed. Now, in the case of a corporation like this, the body of the directors may be supposed to have no cognisance of the details of this transaction more than a stranger; and on that ground I apprehend it would be im- possible to make out that this was a fraud committed by the Company so as to prevent them from setting up the instrument BO obtained. But, with regard to equitable fraud, a Court of Equity will take into account all the circumstances of the case PERSONAL INJURY. 931 — not only the act and intention of the party, but the circum- stances under which the act was done, the position of the party who is said to be imposed on, his being inops consilii, his being in a state of bodily and therefore mental weakness, and so on. Non constat that these are sufficient to constitute legal fraud." Judgment against the Company. The Company then appealed to the Lord Chancellor, who said — "An instrument has been unfairly obtained, which is an impediment to the Plaintiffs succeeding in an action. The Plaintiffs have a right to have that instrument taken out of their way, and they are under no obligation to forsake the tribunal to which their cause of action properly belongs, and where they are already suitors to transfer that cause of action in its entirety to this Court as the price of this Court's interference. This Court can most legitimately and effectually interfere by restraining the Com- pany from obtaining any benefit from that instrument. I think the Court is bound, if the case be proved as it is now alleged, to exercise that jurisdiction; and on these grounds, therefore, without giving any opinion upon the grounds assigned by the Vice-Chancellor, I overrule this demurrer and dismiss the petition of re-hearing, with costs." Judgment against Company. — Tried in the Court of Chancery, before the Lord Chancellor, on appeal, July 1, 1865. — From Laiu Times Reports, vol. IS, page 79. 629. Read V. Great Eastern Railway Company. — Action by the widow of D. Eead for her husband's death, arising from a collision on the Company's railway. Deceased before his death had received from the Company a sum of money in full satisfaction and discharge of all the claims and causes of action he had against the Company for said accident. Plaintiff con- tended that the death of her husband created a new ground of action, and that the compensation he had accepted was for injuries not at the time expected to produce death. Justice Lush said — " The intention of the 9 & 10 Vic, cap. 93, was not to make the wrongdoer pay damages twice for the same wrong- ful act, but to enable the representatives of the person injured to recover in a case where the maxim, Actio personalis moritur cum, persona, would have applied. It only points to a case 932 PERSONAL INJUKY. where the party injured has not recovered compensation against the wrongdoer. It is true that section 2 provides a different mode of assessing the damages, but that does not give a fresh cause of action." Judgment for Company. — Tried in Court of Queen's Bench, June 25, 1868. — From Law Reports, vol. 3, page 555. 630. Lee V. Lancashire and Yorkshire Railway Com- pany. — Action for £3,000 for injury to the spinal cord of Plaintiff, resulting from a collision at Miles Platting on Sep- tember 25, 1865. Plaintiff was a civil engineer, and first made a claim for £650 shortly after the accident. He was seen by his own doctor, the Company's doctor, and a third doctor who was considered an independent doctor. On the 18th October Plaintiff agreed to accept £400, and the Company to pay £50 for doctors' bills ; and Mr. Blackmore, the Company's passenger superintendent, paid the money and obtained the following receipt : — " Received from the Lancashire and Yorkshire Kailway Company the sum of £400, in discharge of my claim in full upon that Company for all loss sus- tained and expenses incurred by the late accident at Miles Platting, September 25, 1865, including all expenses attending the same." In July, 1866, Plaintiff became materially worse, and for a time lost the power of speech and hearing, and, although he re- covered these, he was incapacitated from practising his profession. Plaintiff made a further claim on the Company, which was de- clined. He was then legally advised that the receipt he had given would at law bar his claim. It appeared when he received the money from Mr. Blackmore he did so upon the express con- dition — assented to by Mr. Blackmore — that he should not thereby preclude himself from further compensation if his injuries should prove to be of a more serious character than they were then believed to be. Plaintiff was advised to take the case into the Court of Chancery for an injunction to pre- vent the Company pleading the receipt as a final settlement of his claim. The Vice-chancellor thought the Plaintiff was not, when he gave the receipt, competent to treat for himself, or, if he was, he ought to have had other than mere medical assistance. Costs of suit given against Company. Against this decision the Company now appealed to the Court of Chancery in Equity. PERSONAL mjURY. 933 Lord Justice Mellish, in giving Judgment, said — " Plaintiff alleges that before he can properly try his case in the Court of Law the plea which has been set up (against him) ought to be set aside, that plea being in form a common plea of payment and receipt of a sum of money in satisfaction of Plaintiff's claim. I am of opinion that if he received such advice it was wrong advice, and that if the circumstances stated in his bill are correct he had a full and complete answer at law to this plea; and it appears to me that the supposition that it is necessary to come into a Court of Equity for the purpose of setting aside the plea is founded on a total mistake as to what is the effect at law of signing a receipt. I had some little doubt in the course of the argument whether it might not be said that this document amounted to an agreement, in which, no doubt, the rule of law would apply that if the parties had reduced their agreement into writing they could not vary the terms of that agreement by parol evidence ; but, on looking at the document, I am convinced it is simply a receipt. It simply states the fact ; it does not state an agreement, or purport to bind either of the parties to any terms whatever. It simply acknowledges that a sum of money was received, and then states in respect of what it was received, viz., in satisfaction of the damages the Plaintiff had sustained in this collision. Then what he says is this — ' True it is that I signed that receipt, but I asked the agent of the Company in plain terms before I signed it. Will this receipt prevent my recovering further damages if the doctors' opinion turns out to be wrong and I don't get well ? The Company's agent told me it would not, and I signed the receipt on the faith of that statement.' I am very clearly of opinion that if that is a true statement, and^if the Jury believe it, he (Plaintiff) would have a perfect answer to this plea, not necessarily on any replication of fraud, but on any replication traversing the plea denying that he had received the money which was paid him in (full) satisfaction and dis- charge. Where a receipt has been given under seal it dis- charges the cause of action altogether, and it can only be set aside in a Court of Law on what is called the equitable jurisdic- tion of Courts of Law, which in certain circumstances they can exercise. But a receipt not under seal has no such effect at all ; 934 PERSONAL mjURY. it simply amounts to an acknowledgment. It has the same effect at law as if a man had written a letter saying he had received a sum of money in satisfaction, or as if in course of conversation he had mentioned he had received it in satisfac- tion. In my judgment Plaintiff does not want the assistance of a Court of Equity ; I think he will not be held to be bound by it (the receipt) at law,' and it is a great pity that this case did not go down to be tried at law before a Jury in the year 1866. I think, therefore, the decree of the Vice-Chancellor must be reversed." Lord Justice James concurred. This Judgment was practically against the Company, because it cleared the way authoritatively for a trial at law before a Jury. — Tried in GouH of Appeal in Chancery, April 17, 18, and 19, 1871. — From Law Times Reports, vol. 25, page 77. 631i Bradburn v. Great Western Railway Company. — Action for personal injury arising from an accident on the rail- way. It appeared the Plaintiff had received £31 from an Accidental Office, and the Company disputed the claim. The case was first tried at the Stafford Summer Assizes, before Baron Pigott, when the Jury gave Plaintiff a verdict for £217 damages. The Company appealed to reduce this sum by £31, on the ground that in the case of Hicks v. Neivport Abergavenny and Hereford Railway Company (4 B. & S., 403) Lord Camp- bell directed the Jury to deduct from the aggregate amount of damages a certain sum paid to the Plaintiff upon an accident policy by an Insurance Office, and also the premiums that would have been payable upon a life policy had the life con- tinued. Baron Pigott said — " I am of opinion the Judgment must be against the Company. The Plaintiff is entitled to recover the amount of damages which the Company have caused him by their negligence, and there would be no justice nor principle in setting off against the damages a sum to which he is entitled under the contract that he, as a prudent man, made in anticipation of calamity. He pays premiums, and the agreement with the Insurance Office is that so soon as he shall meet with an accident he shall receive a certain sum of money. It is because he is damaged that he gets it, and it is paid him by reason of his contract." Baron Bramwell and Baron Amphlett PERSONAL INJURY. 935 concurred. Judgment against Company. — Tried in Court of Common Pleas^ November 5, 1874. — From Law Journal RejportSy vol. 44, jpage 9. Railway Companies' Servants Authorising Medical or OTHER Expenses in connection with Persons Injured BY Railway Accidents. Case Case No. No. Coxy. Midland (IS'^Q) 632 Langan v. Great Western (1872) 634 Walker v. Great Western (1867) 633 Montgomery v, N. B. (1878) ... 635 632. Cox V. Midland Raihvay Company. — Action by a surgeon for professional charges for amputating the leg of one Higgins, a labourer, who had met with an accident from the moving of a truck on the Company's line. The railway guard applied to Mr. Davis, the nearest surgeon, who required the services of Plaintiff, an eminent hospital surgeon. The Birmingham station-master told Mr. Davis's son that every attention should be paid to the injured man. Plaintiff ampu- tated the leg, and the Company declined to pay, denying their liability. The case was first tried before Justice Maule, at the Warwick Spring Assizes, when the Company contended (1) that, being a corporation, they could only be bound by a contract under their seal ; (2) that it was not incident to the employment of a station-master to enter into contracts of such a character. The Judge directed a verdict for Plaintiff, with leave to the Company to appeal to enter a non-suit. On the appeal case Baron Parke said — " "We are of opinion the power to enter into the contract (with the surgeon) was not incident either to the employment of the guard or station-master. There was no evidence of an authority, in the present case, being given to any but the directors, who possessed, by statute, the management of the affairs of the Company. Though it might be a benefit, in such a case, to the master to have the damage diminished by a speedy cure, if he was really liable for that damage, it would, however, be a prejudice to him to be bound to pay if he was not ; and is the servant to decide whether his^master is liable or not ? The employer of an agent 936 PERSONAL INJURY. for a particular purpose gives only the authority necessary for that agency under ordinary circumstances. The employ- ment of an agent gives also the power usually exercised by similar agents, but there was no evidence of usage in this case. We think, therefore, the Company are not liable, whether we suppose the railway guard or the station-master at the station to be the person making the contract." Judgment for Company. — Tried in Court of Exchequer, December 8, 1848, and January 17, 1849. — From Laio Journcd Rejports, vol. 18, page 65. 633. talker v. Great Western Railway Company. — Action for £44 16s. for medical attendance upon a Company's servant (Jones) injured in an accident, whose leg had to be amputated. The case was first tried before Baron Pigott, at Worcester Assizes, when a verdict was given against the Com- pany. The Company appealed. It appeared that Mr. Adcock, general manager, on hearing of the accident, telegraphed one of his station-masters to " employ as good medical assistance as the neighbourhood would afford." No express authority to engage medical attendance was proved to have been given to Mr. Adcock by the Company. The Company contended that neither the station-master nor the general manager had any authority to bind the Company by engaging medical attendance. Chief Baron Kelly said — " If the general manager has no authority in such case, no official of the Company has. Must a board be convened before a man who has both his legs broken can have medical assistance?" The Company con- tended that the case of Cox v. Midland Railway Company shows there was no implied authority in such a case. Baron Martin said — " At the time that case was decided the notion prevailed much more extensively than at present that a Com- pany could not be bound except by an instrument under seal." The Court, being of opinion that the general manager of the Company had, under the circumstances of the case, authority to bind the Company, gave Judgment against the Company. — Tried in Court of Exchequer, April 18, 1867. — From Law Journal Reports, vol. 36, page 123. 634-. Langan v. Great Western Railway Company. — Action for £90 for board and lodging at an inn, given to two PERSONAL INJURY. 937 passengers injured at a railway accident. One of the sufferers was taken to the inn near Great Bridge Station by the Com- pany's servants, the other sufferer by a fellow -passenger. Shortly after their arrival a Company's inspector, whose duty it was to attend accidents, called and saw the sufferers, and one said, "Who will pay these good people?" The inspector replied, " Don't trouble yourself about that, we will see that all right; you are too ill to trouble about it." Plaintiff (the landlady), relying upon this conversation, continued to supply the sufferers' requirements until they recovered. The case was first tried at Stafford Assizes, 1871, when a non-suit was entered, with leave to move to enter a verdict instead thereof for £90, on the ground that there was evidence which ought to have been left to the Jury in support of the Plaintiff's case. On the appeal case. Chief Justice Cockbum and Justices Lush and Quain held that the Company's inspector, being a person whose business it was to attend accidents, must be taken as a person authorised to pledge the Company's credit in such a case. Judgment against Company. — Tried in Court of Queen's Bench, May 1, 1872. — From Laiv Times Reports, vol. 2%, page 577. 635. Montgomery v. Xorth British Railway Company.— Action for £44 14s. for seventy-five professional medical visits and medicine to a goods guard, who had sustained an accident to his left foot, at Ayton, eight miles from Berwick, while shunting waggons. When the accident occurred, the station agent at Ayton (Tule) sent for Plaintiff (Dr. jNIontgomery), who went with the guard to Berwick, and continued his attendance at Berwick from March 21 to July 15, passing free by railway backwards and forwards. The case was first tried before the Sheriff Substitute of Berwickshire, who gave Judgment for the Company (North British Eailway). Plaintiff then appealed to the Chief Sheriff, who gave Judgment against the Company. The Company then appealed to the Court of Session (First Division), when the Lord President said — " It is made a ques- tion of dispute whether Plaintiff was informed of the rule of the Company, as follows : — • In case of a doctor being sent for iy a servant of the Conip.nnv to attend any person who may have Btistained injury by accident upon the railway, the 938 PERSONAL INJURY. Company will be responsible for the doctor's fee in respect of his first visit only, and station agents and others will be held responsible for making the doctor acquainted with this regulation.' — Article 8, Rules and Regulations to he ohserved hy the Officers and Servants of the North British Radlway Company. The injured man, and another person who lodged in the same house, both swear they made the doctor aware of it, and the doctor himself is not very distinct in his denial. It is not contended the doctor received employment from anybody else except Tule. It is implied that Ti^le authorised him to travel by railway every day, and thus pay seventy-five visits. It appears to me utterly out of the question to suppose that any station-master can have an implied authority to employ a medical man to that extent and for that purpose, and upon that ground I think it quite clear that the Sheriflf Substitute is right, the Sheriff Principal wrong." Lord Deas and Lord Mure concurred. Lord Shand also concurred, and said — " The station-master, under his ordinary employment as such, was certainly not an agent of the Com]3any entitled to employ a doctor to give continuous attendance, either to a servant of the Company or a passenger. A provision or direction to give an intimation of precaution (to the doctor), to prevent any possible mis- understanding, cannot be interpreted as extending the power of the agent who fails to give intimation ; and I cannot see how the failure to give intimation can infer liabiUty against the Company, who were not bound to give it." Judgment for Company. — Tried in Court of Session (First Division), Edin- burgh, May 16, 1878. — Fivm Scottish Law Reporter, vol. 15, page 557. Personal Injury Eesulting in Death where Survivors CAN AND cannot KeCOVER COMPENSATION. Franklin v. 5. E. (1858) Rowley v. L. ^ N. W. (1873) Sykes V, N. E. (1875;.. 636. Franklin v. South Eastern Railway Company. — Action for personal injury. The deceased was injured in a Case Case No. Ho. . ... 636 Birtles V. L. ^ N. W. (1877) ... 639 ) ... 637 Hornv. N. B. (1878) 640 . ... 638 Bourle v. Macroom Railway (1879) 641 PERSONAL INJURY. 939 collision which took place on the Company's line between Grravesend and London, which led to his death. Deceased, the son of the Plaintiff, was porter to a saddler at the wages of 23s. per week. The Plaintiff (the father) was a light porter at St. Thomas's Hospital, which situation he had held for 32 years. Plaintiff was in the habit of carrying up coals to the wards of the hospital, for which he was paid 3s. 6d., but in consequence of illness the deceased had for some time carried up the coals for his father. The Company submitted that the Plaintiff had sustained no damage by the death of the deceased which entitled him to maintain the action. The Judge left it to the Jury whether the Plaintiff had a reasonable expectation of any, or what, pecuniary benefit of a continuance of his son's life. The Jury found a verdict against the Company for £15. On the appeal case it was held that the action was main- tainable, but, as on any view the damages were excessive, there must be a new trial, unless the parties can agree to abate them. Tried in the Court of Exchequer, May 7, 1 858. — From HurUtone and Norman's Exchequer Reports, vol. 3, page 211. 637. Rowley V. London and North Western Railway Company. — Action for personal injury. The deceased was an attorney at Manchester, and by articles of partnership, dated in the year 1853, between his father and himself, he covenanted that he would, during the joint lives of himself and his mother, pay her an annuity of £200 a year. He was forty years of age at the time of his death, and his mother was then sixty-one. One J. Adamson, an accountant, gave evidence that according to the " CarHsle " tables, which showed the average duration of human Hfe, the probable number of years the deceased might have lived, but for the accident, was twenty-seven, and that this should be taken into account in estimating the damages. The Jury assessed the damages at £6,200, appor- tioning £1,200 to the mother, £1,400 to the wife, and £600 to each of the children. On the appeal case it was held that the Jury should not be directed to give damages to the full amount of a perfect compensation for the pecuniary injury, but that they should 940 PERSONAL INJURY. take a reasonable view of the case and give what they con- sidered, under all the circumstances, a fair compensation. Justice Honeyman said — " Having come to the conclusion that on these grounds there must be venire de novo, I purposely abstain from exi:»ressing any opinion on the other exceptions to the Lord Chief Baron's ruling, and to the admissibility of Mr. Adamson's evidence." Judgment accord- ingly. — Tried in the Court of Exchequer Chamber, June 26, 1873. — From Law Reports, Exchequer, vol. 8, page 221. 638. Sykes v. North Eastern Raihvay Company. — Action by a father for death of his son. Both were bricklayers. Seth, the son, was one day at Castleford Station unloading bricks out of a railway truck standing on a siding. A goods train was backed into the siding, struck the truck and knocked Seth out of it, and he was run over by the goods train, and suffered injuries from which he died. The father claimed compensation under 9 & 10 Vic, cap. 93, Lord Campbell's Act. Seth was single, and lived at home with his father ; his father paid him 33s. per week, and he paid his father 12s. per week for board and lodging. Plaintiff made plans and took small building con- tracts, and by the aid of his son carried them out. The case was first tried at Leeds Summer Assizes, 1874, before Justice Denman, when a verdict was entered for Plaintiff for £20 funeral expenses and £50 compensation. The Company appealed, and on the appeal case Justice Grove said — "The Plaintiff was bound to prove a pecuniary benefit accruing to him from his relationship with the deceased ; but he merely showed that he derived an advantage by contract with his son. Franklin v. South Ectstern is plainly distinguishable. The facts were very different. In that case the son worked for nothing; here the father paid wages. The son was servant when he assisted the Plaintiff. There was no evidence that the son was paid less than the usual wages for a skilled workman. The Plaintiff appears to have paid him the wages which a skilled workman ought to receive. The pecuniary advantage to the Plaintiff did not depend upon the relationship. The deceased at any time might have left the employ of the Plaintiff, who possibly might have succeeded in hiring a PERSONAL INJURY. 941 better workman than his son." Justice Brett concurred. Judgment for Company. — Tried in Court of Common Pleas, January 30, 1875. — From Laiv Journal Reports, vol. 44, page 191. 639. Birtles v. London and North Western Railway Company. — Action for £500. Plaintiff, a yam merchant, claimed for the death of his wife, aged forty-six, caused by an accident at London Eoad Station, Manchester. The deceased was a passenger, Stockport to Manchester, by 2.5 p.m. train, April 12, 1876. While standing in the carriage, about to alight, an engine ran into the van, and deceased was first thrown against the metal stanchions of netting, and then thrown with her back across the partition, causing concussion of the brain, resulting in stupor and convulsions, and she died seven weeks after, on the 27th May. Plaintiff brought the action under Lord Campbell's Act, as administrator or executor, in which Act it specifies the action must be for " pecuniary loss occasioned after death ; " a plea was also added to the record that the Plaintiff, as husband, claimed in his own right. Plaintiff claimed for loss of his wife's services as a housekeeper ; also for the funeral expenses and for the medical attendance, extra nursing, and extra cost of nourishment. He proved he paid one doctor £86 and another £46, that the funeral cost £75, the mourning £30, and a housekeeper in place of his wife £35 a year. Plaintiff's counsel admitted that it would not be fair to take the £35 cost of a housekeeper and capitalise it for Plaintiff's life, as many things might intervene. In Scotland the law allowed a " solatium " in respect of pain and suffering, or sympathetic damages. Defendants admitted that Plaintiff was entitled to such a sum as he paid and what he expended between the accident and the date of his wife's death — to reasonable medical expenses — but that £133 seemed excessive. To cost of two extra servants, Defendants complained that Plaintiff claimed a lump sum and did not define items, and that extra nourish- ment could not be costly ; and that, while expenses during the sickness would be fair, the law allowed nothing for the death. 942 PERSONAL INJURY. Defendants pleaded that the funeral expenses and mourning could not be recovered. Plaintiff quoted the case of Osborne V. Gillett (in Exchequer, page 89), where Baron Bramwell held as to funeral expenses — " It seems to me clear that he (Plaintiff) is entitled to burial expenses, and he says in his declaration that he necessarily incurred expenses in the child's funeral." The Judge said the medical charges were indisputable items, and it rested with the Jury as to what was a fair amount. So also was the extra cost for nursing — the nurses' food and wages. The Judge was doubtful whether funeral expenses could be recovered, but considered the mourning expenses could not be entertained at all. The housekeeper being in this case a sister-in-law, he had very serious doubts whether any sum could be recovered at all. The Jury gave a verdict as follows : — Doctors' bills, £132 4s.; extra costs for nurses and nourishment, £37 16s.; funeral expenses, £75 ; and they wished to allow £5 towards the mourning, but were not allowed by the Judge. Some of the Jury considered the housekeeper cheaper than the wife, and allowed nothing under that head. The Judge decided against the £75 funeral expenses, and Plaintiff accepted a verdict for £170, and Is. in respect of injury to Plaintiff. — Tried at Manchester Spring Assizes, March 7, 1877, before Justice Manisty and a Special Jury. — From Special Shorthand Writer^s Report. 64-0. Horn V. North British Raihuay Company. — Action for £700 compensation, made by the father for death of his son. The son was killed on 24th March, 1877, in an accident near Morpeth, on North Eastern Eailway, and was a through-booked passenger from Kirkcaldy to London, holding a ticket issued by the North British Company. The train ran off the line owing to a deficient cant on the curve of the railway, together with the train going at too great a speed for the cant. The case was first tried in Court of Session, before Lord Gifford, when the Jury gave a verdict for £550 compensation for the death and £150 as a solatium for wounded feelings. The Company appealed by a bill of exceptions, when Lord Justice Clerk said — " It has been said the father could not recover, he PERSONAL INJURY. 943 not being a party to the contract of carriage, and could^not sue either for implement or for injury ; and that is quite true. But this is not an action of that nature ; it is an action for a wrong done to the father by reason of a fault committed by the Defenders in the course of the execution of a contract' with the son. Moreover, it is only because the son, if he had survived, would have had a right of action against the Company that the father was entitled to sue the same persons in respect of the same act. So much is this the nature of the claim by a parent for the loss of his child, or a child for the loss of a parent, that, when this principle of liability was introduced into the law of England by Lord Campbell's Act, it was expressly enacted that an action by the father, or the wife or child, of the deceased should be brought against the same parties who would have been liable to the deceased had he survived. In our law (Scotland), in which the principle has been long recognised, although not strictly a derivative or representative right, the title of the father is a corollary or adjunct to the primary right of the deceased; and, although differing in its incidents, has, and must have, the same foundation. In the case of Eisten v. North British Raikvay the Lord President said — ' It appears to me that the true foundation of this claim is partly nearness of relationship between the deceased and the person claiming on account of the death, and partly the existence during life, as between the deceased and the claimant, of a mutual obliga- tion of support in case of necessity. On these two considerations in combination our law (Scotch) has held that a person standing in one of these relations to the deceased may sue an action like this for solatium where he can qualify no real damage, and for a pecuniary loss in addition where such loss can be joroved.' Now, that being the nature of the claim, and it being one truly depending on the primary obligation to the son, I am of opinion that the ruling is right, that this claim cannot be dissociated from the original and primary wrong, and that, if the servants of the Company caused the death of the deceased, they also caused the injury to the father. It has been argued that the damages must be regulated by the place of perform- ance, and the measure of damages regulated by that ; because Henry Horn was killed in England, the right of the 944 PERSONAL INJURY. father to recover here (in Scotland) must be measured by his right to recover in England, must be measured by Lord Campbell's Act ; and that he is not entitled therefore to pay- ment in the name of solatium, because, under Lord Campbell's Act, no such payment would be allowed. I think the whole argument a fallacy." Lords Ormidale and Grifford concurred. Judgment against Company. — Triedj in Court of Session, Second Division, Jidy 13, 1878. — Ftotyi Scottish Laiu Re- porter, vol. 15, page 707. Q4-1 1 Bourke v. Macroom Railway Company. — Action for personal injury. Plaintiff claimed damages for the death of his son, who was killed while travelling on the Company's line, through an accident. The son was fourteen years of age, and was at school. The Plaintiff was a spirit grocer and general merchant, and had the management of the local post office and telegraph office. On the first trial he recovered damages for £150. On the appeal case it was proved that the child was up to the time of his death a strong, intelligent, and well-disposed boy ; that he had been receiving at school education for mercantile pursuits, and in a few years his services would be worth a substantial salary in the Plaintiff's own shop or a similar establishment. The Plaintiff's position rendered him independent of any earnings which his son might be com- petent to gain. Held — That there was no evidence to enable a Jury to say that it was reasonably probable that pecuniary benefit would have resulted to the father from the continuance of the life of the child, and that the Company were entitled to Judgment. Judgment for Company. — Tried in the Ex- chequer Division (Ireland), Janua.ry 25, 1879. — From Laiu RepoHs {Ireland), vol. 4, page 682. PERSONAL mjURY. 945 Personal Injury to Companies' Servants — Doctrine of Com- mon Employment — Employers' Liability Act (New Act, 1880). Case No. Bolton X.Midland (1882) 642 Griffiths v. Farl of Dudley (1882) 643 JRobins \. Cubitt (1881) 644 Hutchinson v. Y. N. ^ B. (1850) 645 Skip Y. B. C. il85H) 646 Vase V. L. ^ Y. (1858) 647 Potts V. P. C. D. Sj- R. (1860) ... G48 Riley \. Baxendah {18&\) 649 Waller v. 5. E. (1863) 650 Lovegrove v. L. B. ^ S. C. (1864) 651 Graham \.N.E.{l8Qo) 652 Case No. Morgan y. Vale of N.{l8&b) ... 653 Tunneyy. Midland {\8QQ) 654 Warhurtony. G.W. (}8m) ... 655 M'Kinney v. 1. N. W. (1868) ... 656 Hoey y. 1). ^ B. J. {1870) ... 657 Britton y. G. W. (1872) 658 Comcay v. B. Sf N. C. (1875) ... 659 Turnery.Q.E. (1875) 660 Armstrong v. L. ^ Y. (1875) ... 661 Woodley v. Met. D. (1877) 662 Swainson v. N. E. (1877) 663 64-2. Bolton V. Midland Railway. — Action for personal injury under the Employers' Liability Act, 1880. On 22nd January last, there was an upset of a coal train on the main up line, a short distance to the south of the Midland St. Albans Station. Plaintiff, with other men, was sent to clear the line. A chain had been put round one of the upset waggons for the travelling crane to hoist. The truck had been raised as the foreman of the break-down gang, in the exercise of his super- intendence, gave the word to hoist. Owing to the raised truck swinging round smartly. Plaintiff's foot got crushed, and had to be amputated. Plaintiff was an Army Keserve pensioner, who had become unfit for service in the Eeserve, and his pension ceased in consequence. Plaintiff's earnings with the Company were £\ per week, with an average of 2s. 6d. per week overtime. The pension he lost was 3s. 6d. per week. He sued for three years' earnings, £162 10s., and, at the same time, the lost pension, £27 6s. The Jury returned a verdict for £100, finding that there had been gross negligence in the superintendence of the operations during the removal of the upset waggons on the occasion in question. — Tried in the St. Albans County Courts June 30, \S^2.—Law Times, July 8, 1882, ^age 184. 643. Grifiths V. Earl of Dudley. — Action under the Employers' Liability Act, where a workman wag killed owing 60 946 PERSONAL INJURY. to a defect in machinery. The case was first tried before the Dudley County Court, when a verdict for £150 was given in favour of the widow, the County Court Judge declining to recognise Defendant's plea that the deceased had contracted himself out of the Act. His Honour (Sir Eupert Kettle) gave Judgment in this case. Plaintiff was Phoebe Griffiths, widow of Henry Griffiths, late of Brockmoor, Pensnett, and she claimed on behalf of herself as such widow £150 from the Earl of Dudley as compensation for the death of her husband. On November 19, 1881, the deceased was in the employment of the Defendant as a sinker at No. 2 pit, Himley Colliery. Defendant's work- men were drawn up and let down the pit in a bowk by means of a steam engine fixed on the surface, and in connection with the steam engine there was an indicator to inform the driver of the engine of the position of the bowk in the shaft. Griffiths was being drawn up the shaft, and as he and the bowk were in great danger of being wound over the pulley he jumped out, but missed his footing, fell down the shaft, and was killed. It was shown that the engine-driver, by reason of a defect in the indicator of the engine, and which he had not detected, was unaware that the bowk had reached the top of the shaft. When the case was tried before his Honour, Mr. Waldron appeared for the Plaintiff ; and Mr. Eeid (instructed by Messrs. Saltwell, Benbow, and Tryon), who appeared for the Defendant, stated that his instructions were to rely upon the defence that the deceased, Henry Griffiths, had contracted himself out of the Employers' Liability Act, 1881 ; and to remove all technical difficulties, so as to confine the trial to this issue only, Mr. Eeid made the following admissions : — (1) That Griffiths was in Defendant's employment as a work- man within the meaning of the Act ; (2) that Walter Worton (the engineer) was guilty of the alleged negligence within the meaning of the Act ; (3) that Edward Woiton was also guilty of the alleged negligence within the meaning of Act ; (4) that the death of the deceased was caused in the manner alleged ; (5) that sufficient notice of action was given, and all the necessary formalities complied with, to entitle the Plaintiff to bring her action ; (6) that the action should be taken to be good, whether she should have sued personally I PERSONAL mjDRY. 947 or as representative of her deceased husband ; (7) these admissions to be taken subject for all purposes to the defence that Griffiths contracted himself out of the Act. Mr. Waldron, for the Plaintiff, at the close of the Defendant's case, rehed upon the following points : — (1) That the evi- dence did not prove a contract between the deceased and the Defendant as relied upon by the Defendant ; (2) that the supposed contract relied upon by the Defendant was void for want of mutuality ; (3) that the contract relied upon by Defendant was not founded upon a valid consideration ; (4) that such a contract would be against public policy, and, therefore, void ; (5) that such a contract must be in writing, and, if in writing, must be signed by the party to be bound. His Honour said, before giving Judgment on the points raised, he thought it right to consider the position on which the defence was based. The words " contracting himself out of the Act" had become familiar in relation to the Agricultural Holdings Act. As applied to the present case, he took the words to mean that the deceased had entered into a valid con- tract to dispose of any interest which might accrue to his widow under the Employers' Liability Act. He had to decide whether any set contract could lawfully be made, and whether such a contract was made. The operations of the Act were two-fold. It provided, first, that the workman should have a legal remedy against his employers for injury by the negligence of fellow- workmen in the same employment. So far as the workman himself was concerned, the new statute gave him the same right of compensation as if he had not been in the service of an employer ; and he (the Judge) saw no reason why he should not be liable to the same legal incidents as any other person, including the right to make it the subject of a contract. That the right became beneficial upon a contingency did not, he thought, prevent him being dealt with by the owner for a pre- sent valuable consideration. The second provision of the Act was that a workman should have the same right of compensa- tion against the employer as if he had not been in the service of such employer. The compensation for death, and the right for such compensation, was created by Lord Campbell's Act, and that was the only right to which the Employers' Liability Act 948 PERSONAL INJURY. could refer under the words " same right." The same right was conferred by the latter Act upon the widow and children of a per- son killed in the course of his employment as was conferred by the former Act. He, therefore, had under the circumstances to deter- mine what was the right under Lord Campbell's Act. His Honour then, for the purpose of interpreting the latter Act of Parlia- ment so as to apply it to the present case, quoted from several cases. In one, Blake v. The Midland Railway Covipany, the Judgment delivered laid down that the statute gave a cause of action beyond what the deceased could have maintained if he had ever been injured and not killed. The actions of Reed v. The Great Eastern Railway Company, Bradshaiv v. The Lan- cashire and Yorkshire Raihvay Company, and Leggott v. The Great Northern Raihvay Company were also referred to. In the last-named case the Judgment appeared to leave no doubt whatever as to the interpretation his Honour ought to put in this case on the legal nature of the right of the Plaintiff created by Lord Campbell's Act, and enforced under the Employers' Liability Act. According to the true construction of Lord Campbell's Act, then, the deceased had no property in, or right over, the compensation to which his wife would become entitled upon his death. The authorities he had quoted, taken together, appeared to fully support this interpre- tation of the statute. It followed that the deceased, having no property in, or legal right over, any compensation which might accrue to his widow and family in case of his death under the circumstances mentioned in the claim, could not make it the subject of a contract entered into between him and his employers. In other words, he could not, as it was popularly called, contract himself out of the Act. For the reasons he (the Judge) had mentioned, he found that the Plaintiff was suing in her own personal and original right, and not in any derivative right or capacity, and was, therefore, entitled to his verdict. His Honour afterwards reviewed the history of the field club system, as carried on at Lord Dudley's collieries, and said as the result of long experience he believed, with respect to any claim which could be legally enforced, that substantial justice was done and moral right carried out in the collieries by the relief obtained from the field box fund. As to the contract PERSONAL INJURY. 949 between employer and employed, in his judgment it did not require to be a signed contract. As to it being void for want of mutuality and arrangement, lie thought the contention for the Plaintiff was right. He placed no reliance upon the fact that the employer's contributions to the field box were voluntary, and he thought there was an obligation to continue to levy contributions from the workmen, and amongst others from the deceased. On the question of the amount of compensation to be given, he found that the widow and family would be most benefited by the whole sum claimed, and he gave a verdict in favour of the Plaintiff for the full amount, £150, with costs. Mr. Waldron suggested that as the Defendants intended to carry the case to the Superior Courts his client would not be able to bear the expenses, and might therefore be prevented from obtaining the benefit of the Judgment. His Honour said Mr. Waldron must admit that the other side had given way, and done all in their power to try the case on its merits. Mr. Waldron said that was so, and he thanked the Earl of Dudley's agents for the courteous and handsome manner in which they had defended the case. Mr. Tryon said his Honour's decision raised an important question as to these insurance schemes, and the benefits accruing to widows and children therefrom, and he asked, under the circumstances, that Judgment might be stayed. His Honour consented to stay Judgment until the legal advisers of Lord Dudley had had an opportunity of testing the question raised in a Superior Court. — Tried in the Dudley County Court, May 16, 1882. — Fi^om Newspaper Report (Dudley Herald, May 20, 1882). The Earl of Dudley then appealed to the Queen's Bench, and the case was decided as follows : — This was the case which raised the question whether a workman can contract, not only himself, but his wife (in the case of his death), out of the relief afforded by the Employers' Liability Act, 1880, in cases in which workmen would otherwise have been deprived of a remedy by the doctrine of " common employment." The Earl is the owner of extensive collieries, the workmen employed on which are numbered by thousands. For many years, before and up to the passing of the Act, there has been established in his Lordship's collieries a kind of club or benefit society, called 950 PERSONAL INJURY. the " Field Box," which was a fund raised by levying weekly contributions from workmen, in some cases directly and in other cases indirectly, through the agency of the contractors under whom they worked. The Earl, as the owner of the collieries, added to the fund a gross sum equal to the amount of the total contributions levied from the workmen. The deceased was a journeyman pit sinker, and from his wages was deducted, by the contractor in whose immediate employment he was, 4d. per week to the fund. He was not asked to con- tribute, but the sum was deducted from the amount payable to him at each reckoning. The Earl's contributions to the fund were voluntary. The benefits derived by the workmen from the fund were — (a) surgical aid in case of personal injuries in their work ; (6) a weekly allowance in case of inability to work from injuries or sickness ; (c) money to pay funeral expenses in case of a workman's death ; and (cZ) an allowance to the widow and family in case of workmen killed when engaged in their employment. The club or society was not registered as a benefit society, nor was there any rule for its management. There was no evidence that there were any officers, nor, as between the parties, any balance-sheet or audit. The pay- ments out of the fund were voluntary and at the discretion of the agents, who managed the fund as part of the business of the collieries. As regarded the case of a widow, the allow- ances made were optional, and so as to the allowances to children. When the Employers' Liability Act was passed, meet- ings of the men took place (which, however, it was not proved that the deceased man attended), resulting in an agreement to accept the existing arrangement ; and the Earl circulated con- ditions, the effect of which would be that all the workmen were to be members of the club or relief society on the basis already existing, and that they should thus contract themselves out of the Act; and that no workman, nor, in case of death, any person entitled to look to the funds of the society for compen- sation, should be entitled to sue the Earl. It was proved that Griffiths read these conditions, and went on to work as before, paying his subscriptions as he had been used to do. He after- wards lost his life in consequence of the negligence of a person in the employment of the Earl who had a superintendence which, under the Act, would give a workman or his widow a PERSONAL INJURY. 951 right of action against the Earl; and his widow brought such an action, under Lord Campbell's Act and the Employers' Liability Act, in the County Court. The Earl set up as a defence the implied contract entered into by the deceased workman to waive for his widow the benefits of the Act. It was contended on the part of the Plaintiff that she was not bound by it, and that in truth there was no binding contract, it being void for want of mutuality and want of consideration, and also as contrary to public pohcy as tending to defeat the object of the Act. The Earl appealed from that decision, and as the question was one of very wide and general application, it was regarded as of considerable importance, and so had been adjourned a few days ago for further argument and discussion. The Earl had directed attention to the words of the Act of 1880, that in the classes of cases provided for "the workman, or, in case the injury results in death, the legal personal repre- sentatives and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman, nor in the service of the employer, nor engaged in his work." Justice Field, in giving Judgment, said — " The question was of great importance, as th-e Act was very important, and one on which it was extremely desirable that there should be no uncertainty as to its effect and operation. The general object of the Act was to avoid the injustice which was considered to have arisen in cases where workmen were killed or injured by reason of negligence of persons in superintendence under the employers, and where there was before the Act no remedy. The object, however, was only to get rid of the obstacle to recovery of compensation arising merely from the fact that the person injured was in the employment of the person sued. It was not intended to get rid of actual and express contracts. When the Act came into operation. Lord Dudley intimated that he would not employ workmen except upon the conditions pub- lished, and it was clear that the deceased had assented to them. And these conditions expressly stipulated that in such cases the workman or his widow should not look to the Earl for compen- sation. It was a reasonable contract, fairly entered into, and there was abundant consideration for it, as the Earl largely contributed to the fund. That being so, the workman sustained 952 PERSONAL INJURY. injuries in his employment which caused his death, and his widow sued the Earl, who set up the contract in defence. The County Court Judge had overruled the defence, taking a view of the contract in which the Court could not concur. First, he held the contract void for ' want of mutuality,' but that was not pressed in argument, and was clearly untenable. Next, he held that the contract was void as being contrary to public policy, because tending to frustrate the object of the Act. But why was it so ? He thought, on the contrary, that it was quite consistent with and tended to carry out the object of the Act. Then it was urged that the workman could not contract his widow out of the Act, as her right of action was quite distinct from his own or his representatives ; and so, in a sense, it was, for by the recent Act she could sue under Lord Campbell's Act if the representatives did not. But that, though in a sense a new right of action, was rather a change of procedure than a new right of action ; the right of action really remained the same. Then the words of the Act referred to were relied upon that the workman or his widow should be in the same position as if he were not a workman in the service of the parties sued. But that only got rid of the objection arising before the Act from the doctrine of ' common employment,' and was not to be taken literally ; and, indeed, if it were to be so, the action could not be maintained at all, for it could only be maintained on the ground that the workman was in the employment of the person sued. It was to be taken, then, that the deceased work- man had contracted himself out of the Act. There were no words in this Act — as there were in others — providing that the workmen should not contract themselves out of the Act. And where it was not expressly provided that freedom of contract should be restrained, it was not to be interfered with. On these grounds, therefore, he came to the conclusion that this action could not be maintained against the Earl, and that the Judgment of the County Court Judge must be reversed and Judgment entered for the Earl." Justice Cave concurred. The question, he said, was whether the workman could contract his representatives and his family out of the Act, as well as himself, and he was clear that he could. The only effect of the words in the Act relied upon PERSONAL mjURY. 953 was that the objection could not be taken — in the classes of cases provided for — that the workman was in the Defendant's employment ; but it did not interfere with freedom of contract, nor prevent the workman from entering into such a contract as this, which was really for his benefit. The Judgment, there- fore, was entered for the Earl. — Tried in the Court of Queen's Bench Division, July 19, 1882. — From Law Times, July 24, 1882. 64-4". Robins V. Gubitt. — Action for personal injury. This was a case of some interest as the first that has come before the Court under the Employers' Liability Act. That Act makes the employer liable for any personal injury to a workman where it is caused by reason of any negligence of a person in the service of the employer who has any superintendence entrusted to him while in the exercise of such superintendence, or by reason of any negligence of any person in the service of the employer to whose orders or directions the workman was bound to conform. In the present case the accident arose from the shifting or swaying of the hooks of a machine for raising building materials by means of a pail attached to the hooks. The machinery was worked by two men, one at the top, the other at the bottom, the business of the latter being to hold the rope steady while the empty pail was descending. The man at the bottom, however, was absent without leave (there was a foreman of the works, but he did not appear to be aware that the man was away), and the result was that the rope, not being held by anyone, swayed and shifted, and struck against a cross-timber, and the pail was unhooked and fell on the PlaintiflF, another of the workmen below (not engaged in the lowering of the pail), and caused a severe injury to him, for which this action was brought. It was brought in the County Court, but tried by the Judge with a Jury. The Jury found that the injury was caused by the negligence of the two men, and not by any defect in the machinery, and they said nothing as to the foreman. The Judge in the County Court entered a verdict for the Plaintiff for £'50. This was an application to set aside the verdict on the ground that the case did not come within the Act. Crump was for the Plaintiff; Cohen, Q.C., and Wood Hill were for the Defendant. 954 PERSONAL INJURY. The question argued upon the finding of the Jury was whether the case came within the Act, as to which Crump, for the Plaintiff, contended that wherever there was negligence of a workman by which another fellow- workman was injured the Act applied. He contended, in short, that the Act got rid of the whole doctrine of the non-liability of an employer for an injury to a servant caused by another in the same service, and in a " common employment." The Court, however, said that this view could not be sup- ported. If it had been intended, it could and would easily have been expressed, but it had not been. Some persons, no doubt, had contended that it ought to be, but that view had not been adopted by Parliament. It was difficult to see how the case came within either of the two sections in the Act relied on. The accident was found to have been caused by the negligence of two workmen in a " common employment," neither of them in the position of a manager or a superintendent of work. They were actually doing the work with the Plaintiff, and the Jury had found that there was no defect in the machinery. Crump then argued that the men were working under a system which was allowed by the employer, and which was not sufficiently guarded and protected against miscarriage. The workmen beneath were exposed to danger from the descending pail, and as the man below might go away, the system or machinery ought to be so managed as to guard against the consequences of such absence and default ; but Justice Grove observed that this argument made the employer liable for any neglect or misconduct of the workmen engaged in a common employment. Justice Lopes : Even in a case where the machinery is in itself quite sufficient and there is no defect in it. Crump urged that the men below could not well see what took place above them, their view being intercepted by the scafibld, and their lives depended on the due descent of the pail coming down, and this required some precautions. The words of the Act were large enough, as they included " plant connected with or used in the business." Cohen objected that all this went to impeach the finding of the Jury, and there had been no application for a new trial on the part of the Plaintiff. PEKSONAL mjURY. 955 Cramp replied that he had gained the verdict, and, of course, he had no occasion to move for a new trial until his verdict was imjieached on the ground of one of the findings of the Jury being against it, and then he surely had a right to contend that the finding was wrong. The Court, however, pointed out that this was a County Court case, in which the Superior Court could not grant a new trial. The application for a new trial would be in the County Court. Justice Lopes added that he could not understand how the Judge came to enter the verdict, upon these findings, for the Plaintiff. Justice Grrove said he had no doubt the Judge was under the impression that the Act made the employer liable in all these cases, but that was a mistake. Crump said he could not carry the argument further if that was the view of the Court ; and the Court, without calling upon counsel on the other side, gave Judgment for the Defendant. Justice Grrove said the Act specified certain specific classes of cases in which the employer was to be held liable, but neither of the two classes of cases supposed to include the present case -really included it. The first rendered the , employer liable if the machinery was defective, but here it was found to be sufficient, and all the arguments of the counsel for the Plaintiff only went to invalidate that finding and in favour of a new trial, which the Court could not enter- tain. Moreover, these arguments appeared to come to this, that the employers would be liable if the machinery, though sufficient in itself, was not adapted to render it adequate to meet and provide for any negligence on the part of the work- men employed ; but such a view could not be entertained. It was impossible, in reason, to expect the employer to provide against all possible contingencies. Then there was another class of cases, in which the employer would be liable for the ^^gl^g^nce of any person who had any superintendence entrusted to him ; but here it was not contended that the work- men by whose negligence the accident was caused had any such "superintendence" entrusted to them; and as to the 956 PERSONAL mjURT. other part of the section — acting under any directions to which they were bound to conform — it was not contended that this part of the section would apply. The truth was that, if the Act really meant what had been suggested on the part of the Plaintiff, it would come to this — that the employer was always to be liable in these cases. If that had been intended it would not have been necessary to specify any classes of cases, and it would have been sufficient to say simply that the employer should be liable for an injury caused by the negligence of any person in his employment ; but the Act did not say that, and, on the contrary, specified certain classes of cases, within which this case did not come. It was clear that the County Court Judge decided the case under an erroneous notion as to the law, and the result was that the Judgment must be set aside and entered for the Defendant. Justice Lopes concurred. " The question," he said, " is what is the effect of these findings, and I am clear that the effect is that the Defendant is entitled, to our Judgment. The Judge who tried the case must have misconceived the effect of the Act, and thought that the Legislature intended to make the employer liable for the negligence of any of his workmen. That is most clearly not the effect of the Act, and therefore the Judgment must be for the Defendant." This decision, it will be seen, is of great importance, as it shows that the Act only applies in the particular classes of cases specified. No leave to appeal was asked. Judgment in favour of employer. — Tried in Court of Queeii's Bench, November 16, 1881. — From Law Times, vol. 72, jjage 47. Cases prior to Employers' Liability Act. 64-5 . Hutchinson v. York Newcastle and Berwick Rail- way Company. — Action by a widow for the death of her husband, a Company's servant, who, while travelling on the Company's business, was killed in a collision. The action was brought under 9 and 10 Vic, cap. 93, by the widow, as admini- stratrix. Plaintiff contended no foresight or care of the deceased would have protected him. He was guilty of no negligence whatever, and had nothing to do with the manage- ment of either train. Suppose a servant is driving a carriage PERSONAL INJURY. 957 belonging to his master, and another carriage, in which his master is, is driven wrongfully against his carriage and he is injured, is he to be without remedy ? Suppose a person em- ployed to carry a letter bag along the road, may he be run over with impunity by a carriage driven by any other of his master's servants ? Baron Alderson, in giving Judgment, said — " The Company would undoubtedly have been liable if the x^arty injured had been a stranger travelling as a passenger for hire. This case appears to the Court undistinguishable from Priestly v. Foivler (3 Mee. & W., 1 ; s.c, 7 Law J. Eep., Ex., 42). In that case the Plaintifif was a servant of Defendant, and had sustained an injury by the Defendant having overloaded a van in which he, the Plaintiff, was travelling by the direction of the Defendant in discharge of his ordinary duties. The principle upon which a master is in general liable for accidents resulting from the negligence or unskilfulness of his servant is that the act of the servant is in truth his own act. If, instead of a master driving his carriage with his own hands, he employs a servant to drive it, that servant is but an instru- ment set in motion by the master. It was the master's will that the servant should drive, and whatever the servant does in order to give effect to his master's will may be treated by others as the action of the master. If by unskilfulness of the servant he is himself injured, he cannot claim damage from his own master upon an allegation that his own negligence was in point of law the negligence of his master. Suppose that by the unskilfulness of A. the other servant, B., is injured while they are both jointly engaged in the same service, then, we think, B. has no claim against the master. They have both been engaged in a common service, the duties of which impose a certain risk upon each of them, and in case of negligence on the part of the other, the party injured knows that the negli- gence is that of his fellow-servant, and not of his master. He knew when he was engaged in the service that he was exposed to the risk of injury, not only from his own want of skill or care, but on the part of his own fellow-servant also, and he must be supposed to have contracted on the terms that, as between himself and the master, he would run that risk. The deceased had put himself into one of the Company's carriages 958 PERSONAL INJURY. under the guidance of others of their servants, and by the neglect of those other servants, while they were engaged together with him in one common service, he being about his duty travelling, the accident occurred." Judgment for Com- pany. — Tried in Court of Exchequer of Pleas, May 22, 1850. — From Law Journal' Reports, vol. 19, page 296. 64-6i Skip V. Eastern Counties Railway Company. — Action by a guard for compensation for loss of his arm, which was so crushed at Lea Bridge when coupling waggons that it had to be amputated. Plaintiff contended the accident arose from want of an under guard to assist him. The engine started and threw him upon the rails and under the first truck. For three months Plaintiff had done the work without an under guard. The Company contended Plaintiff had voluntarily undertaken to attach the waggons to the engine without any assistance. The case was first tried at the London Sittings (Gruildhall) in Michaelmas Term, before Baron Martin, when Plaintiff was non-suited. He appealed, and on the appeal case Baron Parke said — " If his duties were more than he could perform, he ought not to have accepted the service. The plea of ' Not guilty ' traverses the breach ; the Company say they did take due and proper care. The Company were not bound to keep twenty servants. They are to be the judge of the number. They are, indeed, bound to see that their servants are persons of proper care and skill. Plaintiff went into the service and willingly incurs the danger." Baron Alderson said — " He might have left the service. The Jury are not to be judges of the sufficiency of the number of servants a man keeps. The Plaintiff stayed in the situation three months without an under guard to assist him and without making any objection." Judgment for Company. — Tried in CouH of Exchequer, November' 24, 1853. — Law Journal Reports, vol. 23, page 23. 64-7. Vose V. Lancashire and Yorkshire Railway Com- pany. — Action for personal injury. A blacksmith in the employment of the East Lancashire Company at Liverpool Station was engaged in repairing a carriage in a siding at the Liverpool Station, which is in the joint occupation of the East PERSONAL mjURY. 959 Lancashire Company and the Lancashire and Yorkshire Com- pany. He was killed by an engine of the Lancashire and York- shire Company being shunted into a siding at which he was at work. It appears that the rules for the regulation of the station were published headed in the joint names of the two Companies, and that the servants employed in shunting the engines were the joint servants of the two Companies ; but the engine-drivers and persons employed as the deceased was in repairing the carriage were the separate servants of each Com- pany. It was found that the rules as to the precautions to be taken before shunting trains into the sidings had been observed, and that there had been no negligence on the part of deceased, the shunter, pointsman, or engine-driver, but that the accident was occasioned by the rules being defective. Held — That the Lancashire and Yorkshire Company were liable to an action at the suit of the administratrix of such servant. Thus it was established that where two companies employed a joint staff of servants at a station for certain purposes, each company is liable for the negligence of its servants to the servants of the other company in matters not connected with the joint purposes. Judgment against the Company. — Tried in the Court of Exchequer, January 18, 1858. — From Hurl- stone and Norman's Exchequer Reports, vol. 2, page 728. 64-8. Potts V. Pooi^ Carlisle Dock and Railway Company. — Action by a widow for death of her husband, a Company's servant. At a junction of two lines of rail there was a turn- table. This turntable had originally been made for a single line, and when it became to be used for a double line it appeared, from its construction, to have been braced and strengthened for one line, but not for the other ; but it had been in use for between four and five years. On the occasion of the accident the turntable broke on the side where it was not braced, and a carriage was thrown over on and killed Plaintiff's husband. The case was first tried at Carlisle, before Justice Hill, when Plaintiff was non-suited, but leave to move was given. On the appeal case Chief Justice Cockburn said — " I am of opinion our Judgment must be for the Company. It is necessary to make out, not only that the work in the turntable 960 PERSONAL INJURY. was insufficient, but that there was negligence by not employ- ing a really competent person to do the work. The negligence of the person doing it is not sufficient alone to charge the Com- pany ; it must be shown that the Company were negligent in not employing reasonably competent persons. If Plaintiff can show that the work was so grossly bad as to deduce negligence, then I am willing to admit that it may not be necessary to call evidence of negligence. Where machinery has borne the test of experience for four and a half years, the natural conclusion is that the construction of the work was duly competent." Justice Crompton said — " The law is established for our guidance in the relation of master and servant. A servant cannot complain of an accident arising in course of his duty unless caused by culpable negligence of the master. There are different sorts of negligence — the negligence of the master himself, and the negligence in making machinery, and the negligence of another servant ; and the third is this case, and must clearly be brought home to the master. I concur in the opinion of the Chief Justice." Justice Hill also concurred. Judgment for Com- pany. — Tried in CouH of Queen's Bench, May 10, 1860. — From Law Times, vol. 2, 'page 283. 64-9. Riley V. Baxendale and Another (Fickford & Co.). —Action by a widow for the death of her husband, a porter in Defendants' service. It appeared that while deceased was employed in the warehouse in turning a truck on a turntable, he was pressed between the buffer of a truck and the wall, and died within a few moments. The fact of this truck being of a larger size than those in ordinary use was relied upon as negligence of the Defendants, and the deceased being in the discharge of his duty, and not having contributed to the acci- dent, the Defendants, it was contended, were liable. The case came before the Lord Chief Baron, Guildhall Sittings, IVIichaelmas, 1860, who was of opinion that these facts, if proved, would not sustain the action, and also that no such contract as that stated in the declaration could be implied. He directed a non-suit. The case was taken to the Queen's Bench, when that Court affirmed the decision. — Tried at Queen^s Bench, January 15, 1861. — From Hurlstone and Norman's Reports, vol. 6, page 445. PERSONAL INJURY. 961 650. Waller v. South Eastern Railway Company, — Action by a widow for death of her husband, a guard, who was killed by his train running off the line. It was proved the accident occurred through the decayed condition of the tre- nails which fastened the chairs to the sleepers. It was the duty of the ganger (servant to the Company) to see and keep in proper repair and condition the permanent way by renewing such trenails as were decayed. It was held that where servants are engaged in one common object the injury sustained by one servant in consequence of the negligence of another servant does not give a right of action against the master. — Tried in Court of Exchequer, May 7, 1863. — From Laiv Journal RepoHs, vol. 32, page 205. 651. Lovegrove v. London Brighton and South Coast Railway. — Action by a labourer in a ballast pit for injmy sustained, owing to an iron train rail insecurely fastened down starting up and injuring him while he was pushing a train truck over it. The deputy foreman appeared to be the person in fault for the imperfect fastening of the rail. Chief Justice Erie held that the Company were not liable, as the negligence was caused by a fellow-servant of the Plaintiff, and without any default or neglect of duty on the part of the Company. It was a case precisely in point with Waller v. South Eastern Railway Company. Judgment for Company. — Tried in Court of Com^mon Pleas, June 4, 1864. — From Law Journal Reports, vol. 33, page 329. (The case of Morgan v. Vale of Neath is a similar case.) 652. Graham v. North Eastern Railway Company. — Action for personal injury. Plaintiff was a guard on the North British Eailway, and travelled on a through train between Newcastle and Hexham. On Sunday, 1st November, 1863, he left Newcastle to go to Hexham in a second class carriage, one compartment of which consisted of a guard's break van for a passenger train. When just past the Bladen Station, the driver shut off the steam to check the speed. The Plaintiff put his head out of the window of the van to see that all was right (as was his duty to do), and was violently struck against a post at the side of the railway and seriously 61 962 PERSONAL INJURY. injured. The post formed part of a bridge across the railway supporting a tramway from a colliery. The distance of this post from the window of the van was 16 inches. The distance between the post and the outer rail was 28 inches. The post was 14 inches out of the perpendicular, leaning inwards, and was so when the bridge was originally constructed. The North British Company had running powers over this section of the North Eastern Eail- way. The Judge left it to the Jury to say if the position of the wooden jDost was such as to be dangerous to a guard who has to keep a sharp look-out, as stated in the Company's rules. The Jury answered in the affirmative, and gave Plaintiff damages for £80 against the Company. On the appeal case Justice Erie said — " Having regard to the finding of the Jury, I feel bound to come to the conclu- sion that the rule must be discharged." Judgment against the Company. — Tried in the Court of Common Pleas, February 18, 1865. — From Scotfs Common Bench Reports, vol. 18, page 229. 653. Morgan v. Vale of Neath Raihvay Company. — Action for personal injury. A carpenter in the general emjDloy of a railway company, while engaged on a ladder in painting an engine-shed, was injured through the carelessness of one of the railway porters, who, in moving a waggon on a turntable, knocked the ladder down, and Plaintiff fell down 26 feet and was injured. Held — That the Company were exempt from liability on the ground that the carpenter and porter were fellow-servants in one common employment for a common object. — Tried in Exchequer Chamber, November 27, 1865. — From Laiv Times Reports, vol. lS,p)age 564. 654-. Tunney v. Midland Raihvay CoTnpany. — Action for personal injury. The Plaintiff was employed b}' the Com- pany as a labourer to assist in loading what is called a " pick- up" train with material left by platelayers and others upon the line. One of the terms of his enorasrement was that he should be carried by the train to and from Birmingham at the end of each day. As he was returning to Birmingham after his day's work was done, the train in which the Plaintiff was, through PERSONAL INJURY. 963 the negligence of the guard who had charge of it, came into collision with another train, and the Plaintiff was injured. Held — That inasmuch as the Plaintiff was being carried, not as a .passenger, but under the course of his contract of service, there was nothing to take the case out of the ordinary rule which exempts a master from responsibility for an injury to a servant through the negligence of a fellow-servant when both are act- ing in pursuance of common employment. Judgment for the Company. — Tried in the Court of Common Pleas, January 23, 1866. — From Law Reports, Common Pleas, vol. I, page 291. 655. Warbu7ion Y. Great Western Maihvay Company. — Action for £150 by a carriage cleaner for injm'ies received at Victoria Station, Manchester, owing to an engine being shunted with violence against a carriage he was inside cleaning. Plain- tiff was the servant of the London and North Western Company, and the driver of the engine was in the service of the Great Western Eailway Company (Defendants), driving one of that Company's engines. The Grreat Western Company's engines had access to the station, and, according to the station regula- tions, were under the control of the London and North Western Company's superintendent, and the driver of the engine should have waited for a signal before shunting into the siding. Instead of waiting, he shunted improperly without warning, and so caused the injm-y. The Great Western Com- pany contended the driver, while in the station, was engaged in a common employment with the Plaintiff under the direction of the superintendent in charge of the station ; that the test of common employment is not whether the two are paid by the same employer, but whether they are both subject to the orders of the same person in authority. The action was first tried at jManchester Summer Assizes, before Baron Martin, 1866, and the Jury found a verdict for £150 against the Company. The Company appealed, and on tlie appeal case Chief Baron Kelly said — " We are of opinion tliat, inasmuch as the injury sustained ll by the Plaintiff was occasioned by the servant of t lie ComiDany, ■' not in the course of any common employment or oj^eration K under the same master, but by the negligence of the servant B of the Company in the discharge of his ordinary duty to the L 964 PERSONAL INJURY. Company alone, this case is distinguishable from all which have been decided in relation to the injuries by a fellow-servant in common employment, and therefore our Judgment is against the Company." — Tried in Court of Exchequer, November 6 and 17, 1866. — From Law Journal Reports, vol. 36, page 9. 656. M^ Kinney v. Irish North Western Railway Com- pany. — Action for personal injury to a guard, which resulted in his death, from a train running off the line. The writ of summons and plaint stated " it was the duty of the Company to keep the said railway, and the engines and carriages thereon, in proper and sufficient order and repair for the safe convey- ance of the Plaintiff's husband " while acting as a guard ; but that the said Company failed to do so, but permitted such rail- way, and its engines and carriages, to get out of proper and sufficient order and repair, whereby, and by reason of the negligence of the Company in that behalf, the injuries com- plained of occurred. It was held, reversing the Judgment of the Court of Queen's Bench, that the Plaintiff disclosed a good cause of action. Baron Fitzgerald dissented. — Tried in the Court of Exchequer Chamher (Ireland), May 27 and June 13, 1868. — From Irish Reports, Common Law, vol. 2, page 600. This case illustrates the master is liable for an accident arising from the improper construction of a machine where the master is aware of the defect but the servant is not. 657. Hoey V. Dublin and Belfast Junction Raihvay Company. — Action for personal injury. In an -action by a servant against his employer for negligence in choosing a fellow-servant owing to whose incompetence the Plaintiff suffered an injury, it is not a sufficient answer that the Plaintiff, previously to the injury for a reasonable time in that behalf, was aware of the fellow-servant's incompetence. Negligence on the part of the Plaintiff would disentitle him to recover, but knowledge of the incompetence of the fellow-servant is only evidence of negligence on the Plaintiff's part to be submitted to the Jury. — Tried in Court of Common Pleas, June 10, 1870. — From Irish Reports, Common Law, vol. 5, po.ge 206. PERSONAL INJURY. 96o 658. Britton v. Great Western Cotton Company. — Action for personal injury. Samuel Britton, deceased, aged twenty- two, was employed by the Defendants, the owners of a factory within the meaning of the 7 Vic, cap. 15, to grease the bearings between the fly and spur-wheel on a steam engine in their engine-house. In order to do the work he had to stand on a wall 2 ft. 3 in. thick in a cavity made for the purpose, into which he crawled through the spokes of the fly-wheel, the fly- wheel being on his left hand, revohdng in a " wheel-race " in the engine-house, and the spur-wheel on his right hand, revolving in another room in the factory. The distance between the spokes of the two wheels was 2 ft. 10 in. There was no fence along the wall edge of the " wheel-race " on which he was placed to do his work, and the fly-wheel (near to which, how- ever, children or young persons were not liable to pass or be employed) was unfenced. At the time of the accident Britton had been at the work for five days. On the sixth morning he was caught by the fly-wheel, whirled into the air, and killed. At the trial, on an action by his widow and administratrix for pecuniary loss sustained by his death, the Jury found he had not been guilty of contributory negligence either in under- taking the employment or whilst engaged upon it, and returned a verdict for the Plaintiff. On a rule to set it aside, pursuant to leave, on the ground that there was no statutory duty to fence the place in question, and that the deceased had volun- tarily encountered the risk incidental to his employment : Held, first — That the Defendants were bound, under the 7 Vic, cap. lo, sec 2, to fence the place where Britton had to stand, it being the edge of a " wheel-race " not otherwise secm^ed, and consequently that the dangerous character of the employ- ment was not so obvious as that he must necessarily be taken to have known it, or that, even assuming he did know it, that circumstance alone was not enough to constitute him a volun- teer in such a sense as to exonerate the Defendants from liability for the consequence of their breach of their statutory duty.- — Tried in the Court of Exchequer, January 29, 1872. — From Laiv Reports, Exchequer, vol. 7, pjage 1 30. This case may have an important bearing on the Em- ployers' Liability Act. It illustrates that where a statute 966 PERSONAL INJURY. requires some precaution to be taken for tlie protection of a servant, a master is liable for the injury to a servant in con- sequence of the master's default, unless the servant knew the risk in consequence of that default to which he is exposed. 659. Comuay v. Belfast and Northern Counties Raihvay Company. — Action for personal injury to a Company's servant. The Plaintiff's husband was a milesman, and at six o'clock on the morning of the 1st August, while walking on the line near Belfast on the way to his work, he was killed by a down train running on the up line of rails. In consequence of repairs then being effected on that part of the railway, the manager of the Company issued, as he had authority to do, directions that the down trains should run on the up line of rails. A notice had been sent to the nearest station-master, who on the same day went and explained it to the ganger. There was some contradictory evidence as to whether or not the latter understood the notice, but the notice was not sent to the ganger himself, and he therefore was unable to read or explain it to the milesmen. On the first trial the Jury found for the Plaintiff. On the appeal case Justice Morris said — " The contention of a personal neglect of the Company or its directors was not urged at the trial, which altogether proceeded on the neglect of the manager ; but if we considered it could be sustained, we might direct a new trial. Being of a contrary opinion, we must direct the verdict to be entered for the Compan}^" Thus the general traffic manager of a railway company and a milesman in their employment on the railway are fellow-servants, so that the company are not responsible for the death of the latter from the negligence of the former. Judgment for Company. — Tried in Court of Common Pleas, November 8, 1875. — From Irish RejpoHSy Coonmon Law, vol. 9, page 498. 660. Turner v. Great Eastern Raihvay Company. — Action for personal injury, through some coal trucks being shunted on to a wrong siding and injuring Plaintiff. A man named Lanesborough was employed by the Company at one of their stations to unload coal at some coal shoots ; he employed PERSONAL mjURY. 967 Plaintifif (Turner) to help him do the work. Lanesborough paid him his wages, and the Company had no control over Turner, so as to be able either to engage or dismiss him. At the first trial, at Guildford, in August, 1874, before Baron Bramwell, the Plaintiff obtained a verdict. The Company appealed, on the ground of common employment, which Turner must have contemplated at the time he entered upon the work. Chief Justice Lord Coleridge said — " The case is a difficult one, because it is so near the line, and the line to be drawn is one which it is not easy to state in language, and I will not attempt to give a definition calculated to meet all cases. The Company did not pay the Plaintiff, and had no control over him, so as to be able to engage or dismiss him. So, on these two grounds, it seems to me that this case is clearly distinguishable from Wiggett v. Fox. Now I will not say that this is the only test, but it is put forward as the test by which to distinguish v/hether a man is a contractor or a servant ; so here it would be the test to discover whether Lanesborough was a contractor or a servant; and on this point the report of the Judge says that he could engage and pay his ow^n servants. Suppose the situations reversed, and that the Plaintiff had negligently caused injury to someone else. It seems to me extravagant to say that such a person could sue the now Defendants (Company) for such injury. They would say, unanswerably, ' We had no control over the man ; we did not engage him, and could not dismiss him, and we are therefore not liable for his negligence.' " Justices Grrove and Lindley concurred. Judgment against Company. — Tried in Court of ComTnon Pleas, June 10, 1875. — From Laiu Times Reports, vol. 33, page 431. 661. Armstrooig v. Lancashire and Yorkshire Railway Company. — Action for £400 for personal injury. Plaintiff was a travelling carriage inspector of the London and North Western Eailway Company, and was travelling on their business on a free pass in one of their trains. The train travelled over a branch line belonging to the Defendants (Lancashire and Yorkshire Com- pany), and at Clayton Station came into collision with some trucks that were being shunted by Defendants' servants. The danger signal had been shown, but the London and North 968 PERSONAL INJURY. Western Company's driver did not see it, and did not obey it. The case was first tried at Manchester Summer Assizes, 1875, when the Jury found the Company were negligent in shunting when the train was due, and the driver was negligent in dis- regarding the danger signal. They assessed the damages at ^400, but the learned Judge (Archibald) directed a verdict for the Company. Plaintifif appealed, and on the appeal case Baron Bramwell said — " The Plaintiff cannot complain against the London and North Western Company, because he was their servant ; and yet it is said that he can maintain an action against the Lancashire and Yorkshire Company. I am prepared to decide this case on the authority of Thorogood v. Bryan (18 Law Journal Eeports, C.P., 336), which may have been im- peached, but has never been overruled." It was thus held by the Court that the contributory negligence of the driver of the train disentitled the Plaintifif to recover damages for the negligence of the Defendants, as found by the Jury. Judg- ment for Company. — Tried in the Court of Exchequer, January 23, 1875. — From Law Journal Reports, vol. 44, 'page 44. 662. Woodley v. Metropolitan District Railway Company. — Action for personal injury. The Plaintiff, a workman in the employ of a contractor engaged by the Company, had to work in a dark tunnel rendered dangerous by the passing of trains. He was working on a side wall, and trains were passing the spot every ten minutes. The line being there on a curve, the work- men would not be aware of the approach of a train until it was within 20 or 30 yards of them. The place in question was wholly without light. No one was stationed to give notice of an approaching train. The speed of the trains was not slackened when arriving near where the men were at work, nor was any signal given by sounding the steam whistle. While he was reaching across the rail to find a tool he had laid down, a train came up suddenly, and struck him and seriously injured him. It appeared that on a previous occasion, when similar work was being done, a " look-out " man had been stationed to give warning of the approaching trains, but this precaution had been discontinued. On the first trial the Jury found that the Company, in not PEESONAL INJURY. 969 adopting any precautions for the protection of the Plaintiff, had been guilty of negligence, and gave a verdict against the Company for i£300 damages. On the appeal case it was held by the majority of the Court of Appeal (Chief Justice Cockburn, Justices Mellor and Grove), reversing the decision of the Court of Exchequer, that the Plaintiff, having continued his employment with full knowledge, could not make the Defendants liable for an injury from danger to which he voluntarily exj^osed himself. Justices Mellish and Baggallay dissented, and held that the Plaintiff, as servant of the contractor and not to the Company, had entered into no contract with the Company which would modify the ordinary duty of those who carry on a dangerous business to take reasonable precaution that no one should suffer personal injury from the manner in which it is carried on, and that no such contract should be inferred from the Plaintiff remaining in his employment. Judgment for Company. — Tried in the Exchequer Division, February 14, 1877. — From Laiu RepoHs, Exchequer Division, vol. 2, page 384. 663. Swainson v. North Eastern Railway Company. — Action by a widow for the death of her husband, a signalman, who was killed near his signal box at Leeds by a North Eastern engine and van. The stations of the Clreat Northern Company and the North Eastern Company at Leeds adjoin, and deceased was a signalman on the "joint station staff." He wore the uniform of the Great Northern Company, and was paid by that Company on a pay sheet headed " Great Northern Eailway Traffic Department Pay .Sheet, Joint Station Staff." The cost of his services was borne equally between the two Companies. On the 7th May, 1875, deceased (Swainson), in discharge of his duty, was standing on the six-foot space between the Great Northern and the North Eastern departure lines. A North Eastern engine and van came towards the station on the Great Northern arrival rails with some Great Northern coal trucks, and Swainson signalled the driver to go on to the North Eastern departure line. The driver obeyed, and went on to that line until he passed some points, when he reversed his engine and backed out again, and, having a van before the engine, his 070 PERSONAL INJURY. view of the line was obscured. Swainson was then looking in the other direction, watching a train coming from the south, and failed to observe the engine and van coming out. He was struck by the step of the van, knocked down, and killed. The engine-driver did not whistle, and e^'idence was adduced that it was unsafe to back out with a van in front. The case was first tried before Justice Quain, Middlesex Sittings, June, 1876, when the Judge left to the Jury — (1) Was there negligence on the part of the driver of the North Eastern Company's engine ? (2) Was there contributory negligence on the part of the deceased ? The Jury answered " Yes " to the first question, and " No " to the second, and gave a verdict to Plaintiff of £600, viz., £200 to the widow, and £100 to each of four children. Leave was given to the Company to move to enter the verdict for themselves on the ground of " common employment," the Court to have power to draw inferences of fact. On the appeal case Baron Pollock said — " It will be well, in the first place, to see what is the principle affecting this case which can be gained from authoiity. Up to a certain point this is clear, that whenever the person injured, and he by whose negligent act the injury is occasioned, are engaged in a common employment in the service of the same master, no action will lie against the master if he be innocent of any personal negligence. The deceased, though engaged by the Great Northern Company and wearing their uniform, was one of a joint staff, and for four years had received his weekly wages as such, and he was therefore practically in the service of two companies, who quoad his service and employment were partners. But further than this, as was said by Lord Colonsay, in Wilson v. Merry, in the House of Lords, ' we must look to the functions the party discharges and his posi- tion in the organisation of the force employed, and of Avhich he forms a constituent part.' Referring, then, to the duties of Swainson, and the very acts on which he was engaged at the time of his death, the evidence shows that they were not per- formed by him as a servant of or for the benefit of one company alone, but were essentially necessary for the common business of both, namely, the interchange of the trafiic between the two stations. The case, therefore, falls within PERSONAL INJURY. 97 1 and is governed by the principle that where there is common employment in common service the master is not liable, and om- decision is for the Company, for whom Judgment must be entered." Judgment for Company. — Tried in the Exchequer Division, May 11, 12, and 14, and June 1, 1877. The Plaintiff carried the case to the Court of Appeal, where the decision of the Court of Exchequer was reversed. Lord Justice Bramwell said — " I am of opinion the Judgment of the Court of Exchequer ought to be reversed, and that Plaintiff is entitled to recover. The general rule is that a master is liable for damage done to a stranger by the negligence of his servant, if the servant is acting within the scope of his autho- rity. Where a man is run over by a servant with whom he has nothing to do and no acquaintance, it is reasonable that he should have a remedy against the master for the servant's negligence. A master's guests, however, cannot sue the master of the house for injuries which they may suffer owing to the negligence of his servants, there being a relation existing between the person injured and the master of the servant. I cannot take the same view on the facts as Baron Pollock, for 1 think that in no case was Swainson the servant of the North Eastern Eailway. He was not hired by them, they could not discharge him, he had no claim for wages against them, they gave him no orders except through the Great Northern Com- pany. It is like the case of a carman going to a warehouse to receive bales of cotton, and a bale being negligently drojjped on him by the warehouse-keeper who was lowering the bales to him. There it was held that an action could be maintained against the warehouse-keeper, although the operation was in one sense a joint operation. I agree with the Judgment of the Court below as to the law, but I differ from it as to the facts." Lord Justice Brett concurred. Lord Justice Cotton also con- curred, and remarked — "It was said that half Swainson's wages were paid by the North Eastern Company; but that is not the proper way of putting it in legal language. Eeally half the amount paid for his wages was repaid by the North Eastern Company to the Grreat Northern Company, and in respect of this amount the Cfreat Northern Company had a claim against the North Eastern Company, but Swainson had none."' Judg- 972 PERSONAL INJURY. ment against the Company. — Tried in the Court of Appeal, Feb. 21, 1878. — From Law Times Reports, vol. 38, pjage 201. Miscellaneous Cases of Personal Injury. Case No. Hides \. Neivport Ahergavenny and Hereford {l^b^J) 664 Lord Campbell directed the Jury to deduct £1,000 from their damages, such sum being the amount insured on the deceased's life. Saunders v, London and North Western (1860) 665 A passenger injured in an accident persisted in doing his business, and thereby aggravated his injury ; still the Company were held liable for the maximum injury. Pym\. Great Northern {1SQ2) ,.. 665i Accidental death — £9,000 recovered. Hicl^ensony. North Hastern (1863) , 666 No compensation can be recovered for the benefit of an illegiti- mate child if the supporting relative is killed by neglect or wrongful act. Alton Y. Midla7id (1S65) 667 A trader sues for loss of services of his traveller, injured in an accident — Held, that the contract was not made with the trader, and that he cannot recover. Austin y. Great Western (1867) 668 Company held liable for the breaking of the leg of a child over three months old, although no fare was paid according to the Com- pany's rules. Kearney v. London Brighton and South Coast (1871) 669 A brick fell from an archway of a bridge over a public road and injured a passer-by on the shoulder — Company held responsible. Brown \. Great Western (1812) 670 The Court will allow a company's medical man to examine a Plaintiff's injuries. Bkimur w . Great Northern (181 A) 671 Company's medical officer inspecting a passenger injured on the railway — Plaintiff cannot demand to see his report to the Company. Bradshaw v. Lancashire and Yorkshire (1875) 672 Executors can recover for medical attendance and loss of trade owing to a deceased person having suffered pecuniary loss during a long illness resulting from an accident. PERSONAL mjURY. 973 Case No. Herschfield v. London Brighton and South Coast (1876) 673 Comiiensation to an injured passenger must not be accompanied with fraudulent representation. Berringer r. Great Eastern (19)19) 674 Special case, where a second company (not the contracting company) could be sued by a father for loss of services of his son arising from an accident. 664". Hicks V. NewpoH Abergavenny and Hereford Raihvay Company. — Action for personal injury. In charging the Jury in this case as to the measure of damages, Lord Campbell said — " Grentlemen, the case is entirely in your hands, and the only direction I can give you in point of law is that you ought to consider the amount of pecuniary loss which the family have sustained by the death of the father. You are not to look to the wants of the family, but to the loss they have sustained by the father's death ; and I would say, in the words of a very learned brother Judge, ' Take a reasonable view of the case, and give a fair compensation.' I think you should first consider what would be the sum if there were no insurance. If there was no insurance, what would be the amount ? Well, then, if there be an insm'ance for £1,000 by some company that insured him against accidents by railways, and they being entitled to £1,000 policy, it is quite clear that there should be a reduction from the aggregate amount in respect of that £1,000. Then, with regard to the policy upon his life inde- pendently of the accident, if you allow any reduction (and I think you will probably consider that some deduction ought to be allowed), it will only be in respect, I should think, of the premiums that would be paid by the family, or which would have been paid by himself if this fatal accident had not hajjpened. I leave that, however, entkely in your hands. You will first make a calculation, and say what you think would be a reasonable sum that ought to be allowed as a compensation for the pecuniary loss his family would sustain had there been no insurance; you will then take from that £1,000 insured against accidents, and then any reasonable sum that you think should be further deducted in respect of the life insurance. You will then have the balance which is to be distributed among the 974 PERSONAL INJURY. family, and then it will be your duty to allot it among the different members of the family according to your judgment." — Tried at Xisi Prius, London Sittings after Hilary Term, February 17, 1857. — From Best and Smith's Rejports, vol. 4, 'page 403. 665. Saunders \. London and North Western Raihvay Company. — Action for £2,600 for personal injury, causing shock to nervous system. Plaintiff obtained a verdict for this sum from the Jury, and the Company now appealed on the ground that the damages were excessive. The accident occurred in January, 1859, near Liverpool, and Plaintiff, who was in a first-class carriage, was thrown with great violence against a passenger on the opposite seat, resulting in serious injury to both. Plaintiff was a barrister earning £"300 net per annum ; the compensation given him was equal to an annuity of £200 per annum for life. The Company contended that owing to Plaintiff's incaution he had aggravated his ailment ; that the doctors, after consultation, advised that Plaintiff should abstain from business for full two years, instead of which he only abstained from business for fourteen days. Had the medical advice been followed, the Plaintiff would onl}^ have suffered temporary inconvenience ; and if by his obstinacy or his neglect to act upon medical advice he had rendered the injury of a permanent character, the Company are not respon- sible, and should not be compelled to pay for it. Chief Justice Erie — " It was a question j^eculiarly the province of the Jury, and I cannot make out that the Jury were in any way misled in a matter of law, or that they misap2:)rehended or mistook the value of the evidence. It is impossible for anyone to say positively whether, if the Plaintiff had acted on the advice of the medical man, and had abstained for a considerable time from his professional labours, the depression of mind resulting from that circumstance might not have been more injurious than his continuing his work ; and really it ought not to be brought against him that he continued to work to maintain his position in the profession." Justices Willes, Byles, and Keating con- curred. Judgment against Company. — Tried in Court of Common Bench, April 16, 1860. — Law Times Reports, vol. 2, jpage 153. PERSONAL INJURY. 975 665^. Pyrn V. Great Northern Raihvay Company. — Action for tlie death of Plaintiff's husband, aged forty-one, by an accident on the railway, caused by negligence of the Company's servants. The deceased was a private gentleman, and of no profession. The income from his estate was £3,869 a year, pass- ing at his death to his eldest son. By provisions of a settlement the widow came into £1,000 per annum for her life, and the eight younger children to £800 a year. The deceased left £3,390 personal property. The case was first tried at the Westminster Sittings after Trinity before Chief Justice Cock- bum. The Jury gave a verdict for £13,000, being £1,000 for the widow and £1,500 for eacli of the eight children. The Company appealed, when Chief Justice Cockburn delivered Judgment. He said—" It was objected to by the Company that, independently of the amount of damages, the verdict cannot stand (1) because the case does not come within the terms of the statute, and (2) because the loss, even if a pecuniary loss at all, is in the present instance too uncertain to be properly the subject of compensation. We are of opinion that, as the benefits of education and the enjoyment of the greater comforts and conveniences of life depend upon the possession of pecuniary means, the loss of these advantages is one capable of being estimated in money ; in other words, is a pecuniary loss. The loss of such advantages arising from the death of a father whose income ceases with his life is an injury in respect of which an action can be maintained on the statute. A fortiori the loss of a pecuniary provision, which fails to be made owing to the premature death of a person by whom such provision would have been made had he lived, is clearly a pecuniary loss for which compensation may be claimed. We are not insensible to the consequences in the event of death from negligence to a person of very large fortune. This is rather for the consideration of the Leffis- lature than for us, whether any limit should be put to liabiHty. We see no difference in principle between this case and the claim by the family of an artisan for the loss of advantages arising from their father's earnings, in which case it is not doubted that the action may be maintained." The Judges thought the damages too high, and rather than stand 976 PERSONAL INJURY. a new trial Plaintiff accepted the Judges' suggestion and agreed to take £9,000, reducing the eight children's allowance to £1,000 each. — Tried in Court of Queen's Bench, June 17, 1862. — From Laiv Journal Rejiorts, vol. 31, 'page 249. The Company appealed to the Exchequer Chamber, where Chief Justice Erie affirmed the Judgment of the Court below (June 15, 1863). — 32 Lavj Journal, page 377. 666. Dickenson v. North Eastern Raihvay Company. — Action by a grandmother on behalf of her daughter's illegiti- mate child, seven years of age. The mother of the child had been killed by an accident, and the grandmother, as mother of the deceased, recovered compensation for herself owing to having been partly supported by her daughter. The Judge (Mellor), however, held that nothing could be recovered on behalf of the illegitimate child. The grandmother appealed, and on the ai:)peal case Chief Baron Pollock held that the word " child " in the Act (9 & 10 Vic, cap. 93) meant legitimate child. Judgment for Company. — Tried in Court of Exchequer, Nov. 6, 1863. — From Latu Journal Reports, vol. 33, page 9. 667. Alton V. Midland Raihvay Company. — Action for loss of the services of Plaintiff's traveller for nineteen weeks, owing to said traveller having been injured on the Company's line by accident — Trent to Nottingham. Plaintiff contended his business had suffered great loss and injury by the absence of his traveller, and that the accident arose from negligence. The Company contended they made no contract with Plaintiff, but with his traveller, and that Plaintiff had no right of action. Chief Justice Erie and the other Judges held that Plaintiff, not being a party to the contract of carriage, could not recover. Judgment for Company. — Tried in Court of Common Pleas, May^O, 1865. — From Law Journal Reports, vol. 34:, page 292. 668. Austin V. Gi^eat Western Raihvay Company. — Action for £50 for breaking Plaintiff's leg, Plaintiff being a child in arms of three years and two months old — Crumlin to Merthyr. Plaintiff's mother took a ticket for herself, but was unaware that it was necessary to take a ticket for the child. The Company's rules required that children between three and twelve years PEESONAl, INJURY. 977 should pay half-fare. No fraud was proved on the part of the mother. The Company admitted the accident was caused by negligence ; but seeing they had not been paid for carriage of Plaintiff, and made no contract for his safe carriage, denied being Uable. The case was first tried at the Monmouthshire Spring Assizes, before Baron Pigott, when the Jury gave a verdict for £50. The Company appealed, and on the appeal case Chief Justice Cockbum said — " I think Judgment must be against the Company. The contract is to carry safely both the mother and the Plaintiff. If that contract has been entered into under some misrepresentation on the part of the mother, she may be liable for the fare which she ought to have paid for the Plaintiff, or for any penalty to which she may be subject by any enactment or bye-law made under statutory powers. Her default does not alter the position of the Company, the contract being to carry mother and child. Through the negli- gence of the Company the Plaintiff was injured. I think the verdict right." Justices Blackburn and Shee concurred. — Tried in CouH of Queen's Bench, April 18, 1867. — From Laiv Reports, Queen's Bench, vol. 2, page 442. 669. Kearney v. London Brighton and South Coast RoAhvay Cornpaay. — Action for personal injury resulting from a brick falling out of a bridge over the Blue Anchor Eoad, Bermondsey, on to Plaintiff's shoulder. At the first trial the Jury gave Plaintiff a verdict for £25. The Company aj^pealed to the Court of Queen's Bench, where the Judgment was given against the Company. The Company again appealed to the Exchequer Chamber, when Chief Baron Kelly affirmed the Judgment, holding that the Company were responsible by common law, irrespective of their duty to maintain, uphold, fence, and keep in repair the bridge or viaduct in question. — Tried in the CouH of Exchequer Chamber, June 15, 1871. — From Law Journal Repjorts, vol. 40, page 285. 670. Brown v. Great Western Raihuay. — In the case of an action entered for personal injury, the Court will pass an order for the company, by their medical man, to examine the injured Plaintiff and ascertain the extent of the injuries. — Tried in Court of Exchequer, April 20, 1872. — From Latu Times Reports, vol. 2G, jjage 398. 62 978 PERSONAL INJURY. 671. Skinner v. Great Northern Raihvay Company. — Action for production of medical report. Plaintiff had been injured in an accident on the railway, and the Company's doctor had twice examined him. Plaintiff's solicitor sought for an order from the Court to require the Company to submit said medical reports to Plaintiff. It was held that they were privileged documents, and Plaintiff was not entitled to inspect them. Judgment for Company. — Tried in Court of Exchequer, June 11, 1874. — From Law Joiirnal Reports, vol. 4^, page 150. 672. Bradshaiv v. Lancashire and Yorkshire Raihva.y Company. — Action by executors for medical assistance and loss of business arising from J. J. Clough's illness and death. J. J. Clough, it was admitted, was injured in an accident to a train between Miles Platting and Manchester, 23rd December, 1872, such accident arising from the Company's negligence. Clough was a dealer in boots and shoes, and became for the next six months very ill owing to the bodily injuries he had received. Being unable to attend to his business, it fell off in consequence. He died on June 3, 1873, of smallpox, and not from the effects of the accident. The case was first tried at Manchester Spring Assizes, 1874, when the Jury found a verdict for £200, viz., £160 representing the loss of profit the personal estate of J. J. Clough had sustained, and £40 medical expenses. The Company appealed on the ground that the action was not maintainable against them. On the appeal case Justice Grove said — " We feel bound by the case of Potter v. Metropolitan Raihvay (30 Law Times, 765, and 32 Law Times, 36), which is based upon the reasoning of this Court in Knight v. Quarles (2 B. & B., 102). I think no distinction exists between these cases and the present. It is clear that during his lifetime Clough's estate was diminished from two causes — first, he was compelled to incur medical expenses ; and secondly, he was unable to superintend his business ; and I think that the executrix may sue after his death on the ground that by the Defendants' breach of contract (safe carrying) the amount of assets coming to her has been lessened. In my opinion nothing in the 9 & 10 Vic, cap. 93 (Lord Campbell's Act), prevents the executrix from suing ; no PERSONAL INJURY. 979 right of action is taken away from an executor by that enact- ment. It has been m-ged that the maxim, Actio personalis inoritur cum 'persona, applies, and that the remedy dies with the person ; but when bodily harm is sustained owing to a breach of a contract, two causes of action may accrue to the person injured — he may obtain compensation for his bodily sufferings, and also for such injury as his personal estate may sustain. I think that the remedy for the injmy survives to the executrix ; the present action, being founded on a contract, will lie after the death of the person who has sustained the pecuniary loss. The case of Hadley v. Ba.xendale has been relied upon as that the damage is too remote and not contem- plated at the time of the contract between the two contracting parties. The Company may reasonably have contemplated at the time of his becoming a passenger that if he received bodily hurt by their negligence he would suffer loss in whatever business he might be engaged." Justice Denman concurred. Judgment against the Company. — Tried in Court of Common Fleas, January 22, 1875. — From Laiv Journal Reports, vol. 44, page 148. 673. Herschfield v. London Brighton and South Coast liailivay Company. — Action for personal injury received in a collision. One of the Company's officers visited Plaintiff and got him to accept three guineas compensation in full of all demands. The officer stated Plaintiff's injuries were trivdal and temporary, and if they should afterwards turn out to be more serious he would still, even if he executed the deed, be in a position to obtain further compensation. Plaintiff's case was that this was a fraudulent representation. Justice Mellor said — " There has been a fraudulent represen- tation of facts, and a fraudulent statement that the deed would not be binding under the circumstances which have arisen. There is no obstacle in law, and we are also now at liberty to act upon the rules of equity as to fraud. I am of opinion the Plaintiff is entitled to pursue his action for further compensa- tion." Justice Lush concurred. Judgment against the Com- pany. — Tried in Court of Queen^s Bench, November 10, 1876. — From. Law Times RepoHs, vol. 35, page 473. 980 PERSONAL INJURY. 674. Berringer v. Great Eastern Railway Company. — Action for loss of son's services by a father (a butcher), owing to the son having been injured in an accident. The son was a passenger, Fen church Street to Southend, by London Tilbury and Southend Eailway. The accident occurred at Stepney Junction, owing to a collision with a Great Eastern train, and the Grreat Eastern Company's servants were at fault. The father sued the Grreat Eastern Company, although they were not the contracting company. It was held that a master cannot sustain an action against the contracting company for loss of his servant's services in such a case unless the master be a party to the contract of carriage. Justice Lopes held that the second company (Grreat Eastern) could be sued by the father upon an ordinary tort to recover for loss of his son's services. — Tried in Court of Confimon Pleas, March 11, 1879. — From Law Journal Reports, vol. 48, page 400. 981 CATTLE CASES. (horse cases shown separately.) Cattle Delayed and Injured. (These Cases are treated under " Special Contracts.'''') Case No. Crisp Sf Thompson v. Yorlc Newcastle and Berwick (1854) 675 Cattle delayed — Company held not to be common carriers of cattle — Special contract exempted Company from liability. Hughes v. Great Western (1854) 676 Loss of market of pigs — Company held not liable, owing to special contract. Snead Y. Skreivshury and Hereford (ISbb) 677 Cattle arrived too late for a fair — Company held not liable under their notice of special contract. Briddon v. Great Northern (1858) 678 Cattle delayed thirty hours owing to a snowstorm — Company held not liable. Fay V. City of Dublin Steamship Company (1860) ... ... 679 Delay to cattle through stress of weather. Fogarty v. Bagnalstoivn ^' W. Railway Company (1860) ... 680 Delay to through-booked cattle. Drain V. Henderson (1860) ... ... ... ... ... 681 Cattle delayed owing to steamer helping a shipwrecked vessel. Rear ns v. Har2)er (1862) 682 Delay to cattle through stress of weather. Allday V. Great Western {1864) 683 Cattle overcarried and delayed — Special contract note signed, but no option of higher rate offered — Company held liable. Matthews V. D. 4- D. (1865) 684 Cattle delayed, Kells to Huntingdon, being short-shipped at Dublin. Donohue v. London and North Western (1867) ... ... ... 685 Cattle delayed — Must be carried in reasonable time. Booth Y. North Eastern (1867) 686 Cattle unloaded by owner at night time, strayed on line and killed by an engine — Company held liable, owing to station premises being insufficient to protect cattle let loose. 982 CATTLE CASES. Case No. Page y. Great NortJiern (1S68) 687 Delay in shipping cattle at Diihlin — Question of rotation in receipt, each lot being shipped in order as received. Kirbi/ Y. Great Western (1868) G88 A condition in a special contract note not to be liable for delay is nnreasonable and void — Sender's servant unable to read and signing a risk note binds his master. Robinson v. Duhlin and Liverpool Steamsliip Comj)an>/ (1869)... 689 Injury to cattle at sea owing to rough Aveather. Gallon V. IrisJi North Western (1870) ... 690 Cattle delayed — Special contract. JarmanY. Great Western (1813) 691 Cattle delayed — Wilful misconduct. Burns v. DundalTc and Newry Steam Paclcet Company (1875) ... 692 Tliree cattle lost — Contract limited to Liverpool, loss took place beyond Liverpool. Boherts v. Midland (1877) 693 Sheep too late for market. Foreman y. Great Western (1878) 634 Cattle delayed — Contract note signed — Drover unable to read conditions of carriage — Held, Company not liable. Buddy Y. Midland Great Western (1880) 695 Pigs carried at owner's risk did not exempt the Company from carrying them within a reasonable time ; hence the Company was held liable for the delay. Hill Y. London and No7-t7i Western (1880) 698 Company liable for only £2 for ram killed. Gordon Y. Great Western (1881) 097 Delivery of cattle withheld wrongly — Special contract did not exempt Company from liability. 675. Crisp & ThoTnpsony. York Newcastle and Berivich Railway Company. — Action for £50 for delay to two and a half trucks cattle, Alnwick to Newcastle. Plaintiffs, before 3 p.m. in the day, ordered and hired two and a half trucks, for which they paid, and three tickets were given them. The station-master, at the time Plaintiffs engaged the trucks, informed them there were no cattle trucks at the station, but he thought there would be some soon. By reason of the non-arrival of empty trucks a delay occurred, and the Newcastle market was lost. Plaintiffs pleaded the Company received the cattle as common carriers, CATTLE CASES. 983 and were liable under the Common Carriers' Act. The Company- denied this, and pleaded they received them under a special contract, one condition being printed on back of ticket, " that the Company would not be responsible for the non-delivery of the stock within any certain time, or in time for any particular market." The County Court Judge left it to the Jury whether the cattle were received by the Company as common carriers or under a special contract. The Jury decided the Company received the cattle as common carriers, and gave a verdict for £30. An appeal was made to the Common Pleas Court, and a special case set forth. On the ajopeal, it was stated the man delivering the cattle could not read, hence he could not have made a special contract. The Chief Justice held the County Court Judge should have issued a non-suit, and that it was misdirection to leave the point of contract to the Jury. He gave the Jury an oppor- tunity of deciding against the Company contrary to law, and they did so. There was no evidence of the Company being common carriers of cattle in this instance. Mr. Justice Cress- well said — " I think there was no evidence for the Jury. The Judge, if he had done right, must have told them there was a special contract, and so there was an end to the case." Mr. Justice Williams was of the same opinion. — Tried, on appeal, in Court of Common Pleas, Westminster, April 28, 1854. — From Law Journal Repjorts, vol. 23, page 125, C.P. 676. Hughes v. Great Western Raihvay Compjany.— Action for loss of market of pigs through alleged delay, South- all to Birmingham, 12th November, 1853. The Plaintiff signed a risk note, one of the conditions being — " The Company is not to be held responsible for the carriage or delivery within any certain or definite time, nor in time for any particular market." The pigs left Southall by 3 a.m. train, and reached Didcot at 7.30 a.m., and there they remained for some hours, according to the arrangements of the Company, about which the Plaintiff knew nothing, and were taken by the next goods train on its way to Birmingham, where they arrived too late for the Thursday's market, and were sold at a considerable loss. No train except the express left Didcot going to Birmingham after the arrival of the pigs until the train by which they were actually sent forward. The case was first tried before Chief Justice Jervis, at 984 CATTLE CASES. Warwick Spring Assizes, and lie was of opinion that the Com- pany, by sending the pigs by the first practicable train, had sent them within a reasonable time ; and as the Plaintiff's counsel did not insist upon having the question left to the Jury, he non-suited the Plaintiff. The Plaintiff appealed on a legal point, when on the appeal case Justice Cresswell, with Justice Williams and Chief Justice Jervis, affirmed the non- suit, saying — " It is quite clear that the pigs were not received on the terms stated in the declaration, and the Judge ought to have told the Jury to find for the Company on the plea setting up the contract. It is sufficient for the purposes of our Judg- ment that the pigs were not received under the contract stated in the declaration, and therefore the non-suit ought not to be disturbed." — Tried in Court of Common Fleas, May 2, 1854. — From Law Journal Reports, vol. 23, page 153. 677 1 Snead v. Shreivsbury and Hereford Railway Com- pany. — Action for damages for delay to 126 cattle, Leominster to Stamford, whereby they missed the fair. Plaintiff pleaded that on the 6th Nov'ember he sent his man to Leominster Station to order a special train for the 8th November. This the station-master denied. The cattle were sent on from Leo- minster at 3.30 p.m. to Shrewsbury, and on by 8.30 p.m. train via Stafford to Eugby, where they arrived at 2 a.m., just too late for a cattle train leaving for Stamford. They were detained at Rugby till 7 a.m., and only reached Stamford at 10.30 a.m., too late for the fair. Plaintiff pleaded that the station-master at Leominster guaranteed that the cattle should be forwarded so as to reach Stamford early the following morning, in time for the fair. This the Company denied, and rested their case on the special agreement. Lord Campbell told the Jury that if the station-master made a verbal contract the action was maintainable, and could not be done away with by the sub- sequent printed notice after the verbal contract had been entered into, and after the cattle were loaded. He referred to the 17 & 18 Vic, cap. 31 (which had not come into operation at the time), and the clause introduced by Lord Derby requir- ing all contracts for conveyance of cattle and other things on railways to be signed by the parties. Verdict for Comj^any. — CATTLE CASES. 985 Tried before Lord Campbell and a Special Jury, April, 1855. — From Clearing House Reports, p)age 34. 678. Briddon v. Great Northern Railway Company. — Action for delay to two waggons cattle thirty hours at a station, whereby they were deprived of food and were too late for the market — Huntingdon to Nottingham. The detention arose from a heavy snowstorm. The engine was taken off the goods train to help a passenger train. The passenger service was continued by the aid of extra engines, and Plaintiff contended that the Comj)any had extra engines at Peterborough, and as it was possible to keep the passenger traffic working by the aid of extra engines, the same should have been done for the goods train. The case was first tried at Nottingham, before Chief Justice Cockburn, who held that the question was whether the delay in forwarding these beasts was owing to the negligence or want of due expedition on the part of the Company's servants, or was the unavoidable result of the state of the line, they doing all that under the circumstances they were bound to do. The Jury found for the Company. Plaintiff appealed, and on the appeal case Chief Baron Pollock said — " The Jury found for the Comj)any, and rightly. There is a distinction between trains for passengers and trains for goods or cattle. The owners of goods or cattle have no right to complain that extraordinary efforts to forward passengers are not used to forward cattle or goods. The rates of carriage are different, and the cattle or goods sent by goods trains pay a lower rate than they would if sent by passenger trains. The contract entered into was to carry the cattle to Nottingham without delay and in a reason- able time under ordinary circumstances. If a snowstorm occurs, which makes it impossible to carry the cattle except by extraordinary efforts, involving additional expense, the Company are not bound to use such means and to incur such expense." Barons Bramwell, Watson, and Channell concurred. — Tried in Court of Exchequer, November 9, 1858. — From Law Journal Repjorts, vol. 28, page 51. 679. Fay V. City of Dublin Steamship Company. — Action for £224 loss from missing Manchester market with 104 cattle, shipped in steamship " Trafalgar " from Dublin for Liverpool. 986 CATTLE CASES. Captain Greary swore the weather was so bad he had to put back into Kingstown on the ]\Ionday night, and subsequently on Tues- day to Dublin. The Chief Justice was of opinion that the return of the steamship was justified by the severity of the weather, leaving it for the Jury to judge whether the same cause pre- vented the steamship starting on Tuesday, or for want of coals, the Compan}'- having no depot for fuel at Kingstown. Verdict for Company. — Tried before Gldef Jivstice Lefroy, Kildare Assizes, March 14, 1860. On appeal to Queen's Bench for new trial, their Lordships said they would not interfere with the finding of the Jury, but that with one branch of claim, namely, £32 for provender, some legal difficulty arose that might lead to expensive litiga- tion. Ultimately the verdict was allowed to stand, each party bearing their own costs. — From Irish Clearing House Reports. 6 80 , Fogarty v. Bagnalstoivn and Wexford Railway Com- pany. — Plaintiff claimed £20 for loss of sale at a fair through delay to cattle, Borris to Carlow. The Chairman of Bagnals- town Quarter Sessions dismissed the case, and this was the Assize appeal. The delay was admitted, and arose from the breakdown of an engine on the single line. Company pleaded they booked cattle at a through rate at a less charge than local booking to their junction, in consideration of a special contract note being signed, namely — " I request that you will book my cattle through to Carlow Station, and I will not hold the Company responsible for any delay that may take place on the journey." Plaintiff pleaded negligence on Company's part that could not be covered by risk note. The dismiss was affirmed, with costs. — Tried before Justice Keogh, Carloiv Summer Assizes, 1860. — From Irish Clearing House Rejjorts, No. 18, page 23. 6 81 . Drain v. R. Henderson & Son. — Plaintiff shipped eleven cattle in steamship " Vanguard," Belfast to Fleetwood, the cattle being for Bolton market. Plaintiff's drover signed the Company's ordinary risk note, in which it was stated Defendants' steamship was at liberty to tow and assist vessels. Off the Isle of Man the " Vanguard " fell in with the " Koyal Arch " ex- hibiting signals of distress. The "Vanguard" turned back CATTLE CASES. 987 and towed the " Koyal Arch " into Belfast, the nearest safe port. Plaintiff pleaded he lost his market from the delay, that his cattle were injured, and were sold at considerable loss. Justice Fitzgerald and a Special Jury tried the case at the Armagh Summer Assizes, 1860. The Judge directed the Jury that if the facts of the defence were, in their opinion, true, De- fendants were entitled to the verdict. Verdict given accord- ingly. On appeal to CouH of Common Pleas, 20th November, 1860, and the case being fully argued, the Court upheld the verdict of the Jury. — From Irish Clearing House Reports, lYo. 20, page 23. 682. Kearns v. James Harper, Agent of Steamship Com- pany, — Plaintiff claimed £40, or 50s, each, for deterioration, through four days' delay, on sixteen cows, Sligo to Liverpool. The " Shamrock" steamship was advertised to sail on 7th Novem- ber, unless from some unforeseen occurrence. Defendant refused the cattle on 7th, when tendered. The steamer sailed on the 8th with the cows. On the 10th a gale overtook the steamer, leading to injury of cattle, delay, and loss of Liverpool market. The steamer had only reached Sligo from Liverpool on the 7th with an unusually heavy and extraordinary cargo. Evidence was cfiven as to the cargro and the exertions made to unload it. The Judge said the case tm'ned upon the words " unforeseen occurrence," and, considering the cargo was beyond an ordinary one, he confirmed the dismissal of the case. This was again tried by Baron Fitzgerald, at Sligo Spring Assizes, 1862. — From Irish Clearing House Reports. 683. Allday v. Great Western Raihvay Company.— Action for £15 for thirteen beasts, Oxford to Bordesley Station, Birmingham, being overcarried to Hockley Station, Birmingham, and when found by Plaintiff it was too late to take them to the market at Birmingham, and the cattle were injured by having been kept for several hours in the trucks without food or water. The Company relied upon the special consignment note signed by Plaintiff, as follows : — " Received from Allday the undermentioned animals, on the conditions stated below, and at special reduced charrje below the rates authorised by law. The loading and unloading is to be performed by the sender, and any assistance voluntarily given by the Company's servants to be at the risk of the owner. The Company are not to be subject to any risk in receiving, loading, forward- 988 CATTLE CASES. iug or transit, and tiuloading; nor to be amcnnble for any damage, actual or consequential, arising from suffocation, from being trampled on, bruised, or otherwise injured from fire or any other cause whatsoever; nor for any conse- quences arising from overcarriage, detention, or delay in or in relation to the conveying or delivery of the said animals, however caused. The Company is not bound to send the animals by any particular train, or to carry or deliver th$m within any certain or definite time, or in time for any particular market. If, on the arrival of the cattle and other animals at their destination, no one shall be ready to receive the same on behalf of the consignee, the Company will, at the discretion of the superintendent of any station, send such animals into yards or other convenient places, at the expense and risk of the sender or consignee, and if not claimed within seven days, the same will be sold to defray expenses and pay charges. In order to guard against disappointment, the public are recommended to give two clear days' notice of their intention to send cattle from any station, so that the Company may, if possible, provide trucks ; and to afford time for receiving and loading such cattle and stock, they should be at the station not less than two hours before the departure of the train by which they are intended to be conveyed. N.B. — The conditions cannot be altered or dispensed with by any person whomsoever." The case was tried at the Warwick Summer Assizes, 1864, when the Judge held that the conditions were unreasonable, and a verdict was given for £15, with leave to move for a new trial. The new trial came on, when Chief Justice Cockburn gave Judgment for Plaintiff, and against the Company. He said — " If the statute (Eailway and Canal Act) applied in case of loss by overcarriage, I should have been disposed to grant a new trial. But it is not necessary to go into that question, as the Company admit there was evidence of injury to the cattle from delay. The special contract is certainly not reason- able. It is not merely that the Company will not be responsible for delay, not only for overcarriage generally and not limited to accidental circumstances independent of delay caused by the Company, but they claim absolute immunity from all injury arising from delay caused by their own negli- gence. This I take to be an unreasonable condition, unless something appears that might make it inequitable to the sender to seek to exact from them the full extent of the ordinary carriers' liability. The Company may say, ' We make this special contract : we will carry these animals for a lower price if you will release us from the liability attached to carriers, and will take your chance of the goods arriving at their destination.' If a man enters into such a contract, it is CATTLE CASES. 989 unreasonable to say he is not bound by it. But although the expression reduced charge occurs in this contract, it does not appear to have been used with reference to a greater rate by which the sender might have gained additional security. The condition is, on the face of it, therefore, unreasonable, and the learned Judge at the trial was right in so holding." Justice Crompton concurred. Judgment against Company. — Tried in CouH of Queen^s Bench, Michaelmas Term, November 2, 1864. — From Best and Smith's Reports, vol. 5, page 903. QSA-. Mattheivs v. D. & D. Raihva.y Company. — Action in respect to the delay of cattle, Kells to Huntingdon. The cattle were carried under special contract, but were short-shipped at Dublin, which led to a loss of market. One of the conditions of the contract was — " The Company -will in no case be responsible for any damage to live stock arising from overcrowding of any waggon, or for the delivery of cattle or live stock at any particular time or for any particular market." Held — That such stipulation did not qualify the implied contract to deliver within a reasonable time, but only prevented the question of reasonable time from being affected by the express wish of the sender to have his cattle delivered at a particular time or for a particular market. The sailing bills of the London and North Western Kailway Com^^any, whose vessels formed a link in the through-booking system, contained a condition as follows : — " Cattle to be forwarded by this route are received subject to this express stipulation, that if it shall be found, on the arrival of the cattle in Dublin, that there is not room for the conveyance of the cattle by the next ordinary vessel of the Company proceeding to Holyhead, the Company shall not be bound to forward the cattle until the sailing of the ordinary vessel next follow- ing that of the vessel in which there shall not be room for the cattle." Held — That it was a question for the Jury whether, upon the evidence, the contract between the parties had been made subject to the above stipulations or not. Judgment accordingly. — Tried in the Court of Exchequer (Ireland), November 11, 1865. — From Irish Common Laiu RepoHs, vol. 17, page 87. 685. Donohue v. London and North Western Railuuy Company. — Action for £'20 for delay to cattle, Dublin to 990 CATTLE CASES. Sheffield. The cattle left Dublin 7 a.m. Saturday morning, and reached Holyhead about 12.30 p.m., and were unloaded about 2.30 p.m., and kept in the fields near the station until about 12 noon Sunday, when they were sent on by a special train. There was no regular train, Holyhead to Sheffield, after the arrival of the cattle until Monday after 10 a.m. The ques- tion turned upon whether the Company were responsible to send forward the cattle on Saturday by a special train, as well as sending them forward by a special train on Sunday, or whether they were only responsible to send them forward by the next ordinary train going to Sheffield on the Monday. The agent at Holyhead said he was short of trucks on Saturday night, and had sufficient trucks come in on Saturday night he would have sent the cattle forward on the Satm'day night. On the first trial the Jury found there had been unreasonable delay at Holyhead, and gave a verdict for £20. The cattle had been booked in Dublin on the Friday, but could not be shipped on the Friday. They were required for the Monday's market in Sheffield. On the appeal case Chief Baron Pigott said — " The ques- tion was whether there should have been a peremptory direction by the Judge to the Jury that the Company was excused from sending the cattle by what is called ' an ordinary train.' The agent in Holyhead stated on cross-examination that what prevented, and what alone prevented, the trans- mission of those cattle, not only from Holyhead, but to Sheffield, was the want of trucks ; and if the Jury thought so, the verdict vras justifiable. We must not be supposed to decide that the Company is always bound to send on cattle by a special train — that circumstances, otherwise unreasonable, may not become reasonable in consequence of the exigencies of the line. But, in the absence of any such defence, we must hold that there was nothing of the kind for the Jury to act upon. There was no evidence of what an ordinary train was ; and, independently of that, there was proof that the cattle would have been sent forward by the traffic agent in the ordinary course of business if trucks had been there to send them forward." Judgment against Company. — Tried in the CovM of Exchequer (Ireland), April 27, 18Q7.— From Weekly Reporter, vol. 15, page 792. CATTLE CASES. 991 686. Rooth V. KoHh Eastern Raihvay Comjiiany. — Action for £'67 for cattle killed on the line by an engine at Chesterfield, just after being unloaded at night time from a truck. The cattle (eight heifers and five cows) were sent from Borough Bridge, and were accompanied by the o^vner's drover, who rode with them on a free pass, and who, with owner's nephew, assisted in unloading them. There was only room for one truck at a time opposite the planking by which the cattle walked out of the truck on to the ground, and the cattle unloaded fi-om the first truck had to stand unprotected by any pound or enclosure while the second truck was pushed into position opposite the landing-place. During this interval the cattle strayed on to the main line and were killed. The drover gave up the cattle ticket before he commenced to imload the cattle. On the cattle ticket accepted by the drover were conditions of carriage, viz. — " The bearer undertakes all risk of loading, unloading, and carriage, whether arising from the negligence or default of the Company or their servants, or from defect or imperfection in the station, platform, or other place of loading or unloading, or of the carriage in which they may be loaded or conveyed, or from any other cause whatsoever. " The Company will grant free passes to persons having the care of live stcck, as an inducement to owners to send proper persons with and to take care of them." The Company contended that this notice relieved them from liability in this case, and that they had made delivery of the animals before they had been killed. The case was first tried at the Derby Assizes, when the Jury found for Plaintiff £67 damages, finding that there had been no complete delivery of the cattle to Plaintiff, and that the place at which the cattle were dehvered was not a safe and proper place for the delivery of cattle. The Company appealed, and on the second trial Chief Baron Kellv said — " Where an advantage (i.e., free pass for drover) conferred upon the owner of cattle disentitles him from complaining of the unreasonableness of a condition, an alternative must be presented to him. The alternative must be of accepting the advantage proffered, and relieving the Company of a portion of their liability, or ot rejecting the advantage proffered and holding the Company to their common law liability entire and unlimited. Now here 992 CATTLE CASES. no such alternative was offered. I am not prepared to say that the provision that the owner undertakes all risk of loading and unloading would be in itself unreasonable. If the Company think fit to commit to the owner himself, or to his servants, the business of putting the cattle into the trucks and afterwards unloading them, I certainly do not see why, if the owner of cattle is willing to take that part of the business, a stipulation on the part of the Company that they shall not be liable, even for any negligence committed by their servants in relation to that part of the conveyance of the cattle, should be considered unreasonable. It is contended that the delivery of the cattle was completed upon their quitting the trucks because the cattle drover and the nephew attended to convey them away the moment they stepped out of the trucks. But even if there had been a perfect and complete delivery, it did not discharge the Company from their liability to provide a safe and sufficient means of exit for the cattle. The sole subject substantially left to the Jury to decide was whether the Company had ful- filled their common law obligation — which, in my opinion, nothing in this case shows to be limited — of providing a safe means of exit for the cattle." Baron Martin said — " If the thing carried had been an inanimate thing, to be delivered into the hands of the person to whom it was sent, it might have been a different matter ; but these were cattle that were merely let loose on the carriers' premises. It is a perfect fallacy to call that a delivery, so as to put an end to the liability of the Comj^any, if the yard was not a safe place. If the cattle were injured by reason of the negligence of the carriers, and not of the drover, they are in the same condition as if there had been no drover at all." Judgment against Company. — Tried in Court of Exchequer, January 25, 1867. — From Law Journal RepoHs, vol. 36, jjage 83. 687. -f'rt/ye V. Great NoHhern Railway Company. — Action for delay of cattle, Dublin to England. It was the usage of the Company that cattle should be booked for carriage in the order in which they were delivered in the Company's yard, and that they should be forwarded in the same priority. This usage was known to the Plaintifi" and his servant. Between CATTLE CASES. 993 three o'clock and four o'clock on the morning of Sunday, the cattle in question were brought to the Company's yard, and Plaintiff's man found the gate locked. Carter, the Company's night porter, was ill in bed, and told Plaintiffs man through the window that it was better for him to take the cattle to grass at that hour of the night, and that he (Carter) would see that they were booked next morning as of the time that they were so brought to the yard. About twelve o'clock noon, Sunday, Plaintiff's man went to Connell, the booking clerk, and Connell, being told by Carter what had occurred the night before, booked the cattle, knowing that they ivere not in the yard. Plaintiff's cattle were brought into the yard on Monday morning about seven o'clock, but a quantity of cattle had been put into the yard on the Sunday afternoon ; the con- sequence was that 7 1 of the Plaintiff's cattle were not shipped in turn nor until Tuesday, and were seriously injured by the delay. Chief Justice Monaghan, on appeal, said — "We are of opinion that there is nothing to take this case out of the principle — for which abundant authority was cited during the argument — that when an agent is entrusted with certain duties, the public have the right of acting on the supposition that he is not violating his duty when doing any act not within the scope of his duty, and that the principal be bound by such an act, though it be contrary to his instructions, the person dealing with the agent not knowing that he is disobeying his orders. Here Connell was a booking clerk whose duty it was to book cattle. He conceived he had authority to consider what had been done as equivalent to a delivery in the yard, and he booked the cattle as if delivered. Anyone might naturally suppose that he was acting within the scope of his authority, and the Jury have found, as a matter of fact, that the Plain- tiff was not aware that he was acting contrary to his duty." A verdict, £50 against the Company, given in the Court below, was affirmed. — Tried in the Court of Common Pleas (Ireland), January 22, 1868. — Fro7n Irish Common Law Reports, vol. 2, •page 228. 688. Kirhy v. Great Western Eaihvay Company. — • Action for delay and damage to cattle, and one beast dead. 63 994 CATTLE CASES. Plaintiff had been promised waggons for his cattle at the station (name not given) on the Monday afternoon ; the trucks, how- ever, were not forthcoming, and the cattle did not get to their destination until Wednesday morning. Plaintiff's servant, who was unable to read, had signed the usual risk note, and one of the conditions set forth was — " That the Compnny shall not be answerable for any consequences arising from overcarringe, detention, or delay in the conveying or delivering of cattle in time for a particular market, however caused." Baron Martin held that the Plaintiff's servant's signature was sufficient to bind the Plaintiff. " It would be dangerous to hold that because the man who signed the note did not know its contents the contract would not be valid, when he was sent for the express purpose of making the contract under which the cattle were to be carried. As to the conditions, my opinion is well known that the conditions must be treated as a whole, and if part is unreasonable, the whole is bad. This particular con- dition has, however, been held unreasonable in Allday v. Great Western, which I am bound to follow. If railway companies will persist in inserting conditions which have been condemned by the Courts of Law, they must take the consequences. As long as I can remember, and probably half a century before, there were always squabbles about carriers' notices. Eailway companies continued these notices until they were put an end to by the Act (17 & 18 Vic, cap. 31, sec. 7). If a railway com- pany claims to make special conditions, they must make such as are reasonable as a whole. These conditions are not reason- able as a whole. But if the injury to the cattle arose from want of food, the carrier was not liable for that, any more than if a parcel insufficiently packed were lost in the carriage through insufficient packing. The owner was bound to see to feeding his cattle. With respect to the cow that died the question was the same. If it died from exhaustion consequent on want of food the Company were not liable." {JSf.B. — It would appear the delay took place at the sending station for want of trucks, and where Plaintiff could have fed his cattle.) Judgment against Company. — Trie(^ in Court of Exchequer, June 19, 1868. — From Law Times Reports, vol. 18, page 658. I CATTLE CASES. 995 689. Robinson v. Dublin and Liverpool Screw Steamship Company. — Claim for £80 for a cow and for damage to eleven other cows on sea journey, Dublin to Liverpool. The steamer encountered a heavy southern gale, which drove the sea across the deck, and the cattle on the deck were knocked down. Plaintiff pleaded that Company agreed to carry cattle (1) safely and securely, (2) with reasonable diligence, and (3) without negligence and mismanagement. Company denied first plea, and maintained they had fulfilled pleas 2 and 3. Company maintained the cattle were received on condition that they should not be answerable for any damage during the voyage by the dangers of the sea. Verdict by Jury for Company on their pleadings. — Tried before Baron Deasy and Special Jury, Court of Exchequer, Dublin, July 2, 1869. — From Irish Clear- ing House Reports, No. 45, page 83. 690. Mallon V. Irish North Western Railway Company. — Action for £20 for eleven cattle, Enniskillen for Lisburn, being delayed- at Clones Junction and missing connection with Ulster train. The Company booked cattle only to Clones, taking payment to that point only. On cattle ticket was written " For Lisburn," so that cattle might be handed over to Ulster Company, no drover being in charge. The train reached Clones 11.50 a.m., and the waggon was attached to engine to be shunted on to Ulster Company's siding, but, owing to the distance signal being up, it was not put on until 12.20 p.m., and did not get forwarded until 6.5 p.m., arriving at Lisburn 8.30 a.m. next day. — Tried before Barrister at Omagh Quarter Sessions. Verdict for Plaintiff on the ground of acceptance of the through contract to Lisburn. — On appeal, before Chief Justice Whiteside, at Omagh Assizes, March, 1870, verdict for Company. Court held the contract was only to Clones. Plaintiff relied upon " For lisburn " being on cattle ticket. Plaintiff's man signed conditions of carriage with his cross, being unable to read or write. Plaintiff contended he (the man) was thus unacquainted with the conditions, and no special contract was made. The Court held that the contract was as good and as binding as if the conditions had been read over and signed by a man who could write, and that, the conditions 996 CATTLE CASES. having been subscribed to bj sender's agent, there was no question as to reasonableness or otherwise. Decree reversed, with costs. — From Irish Clearing House Reports, No. 48, page 89. 691. Jarman v. G7'eat Western Raihvay Company. — Action for injury done to cattle by negligent detention. The contract to carry was at owner's risk, with the condition as to wilful misconduct on the part of the Company's servants, and the Plaintiff stipulated to pay the lower rate. The case was first tried before Baron Bramwell, at the Cambridge Assizes, November 5, 1873, and the learned Judge non-suited the Plaintiff. Plaintiff appealed, but the Court was unanimously of opinion that the rule should be refused. Justice Blackburn observing that evidence of negligence was not necessarily evidence of wilful misconduct. " If," said the learned Judge, " the Eailway Company, having had distinct notice that the running of their trains was very dangerous indeed, owing to the badness of the points, and they were to continue to run their trains without the slightest attempt to put the matter right, that, I should say, would be clearly wilful misconduct." — From the Weekly Reporter, November 29, 1873, vol. 22, jjage 73. 692. Burns v. Dundalk and Newry SteaTn Packet Com- pany. — Claim for three small cattle lost, Warrenpoint to Cam- bridge. Plaintiff booked eighteen cattle, and pleaded the Company were the contracting party to Cambridge, and did not deliver to Great Northern Company at Liverpool the three cattle. The Company produced the quartermaster, who proved he tallied eighteen cattle on to the quay at Liverpool. This was an appeal from a dismiss by Chairman of Newry Quarter Sessions. The Judge held that the special contract of Company limited their liability to the sea voyage, and affirmed the decision of Court below. — Tried before Baron Fitzgerald., at Downpatrick, March, 1875. — From Irish Clear- ing House Reports, No. 66, page 133. 693. Roberts v. Midland Railway Company. — Action for damages for sheep missing market, Bedford to Northampton, and Bedford to Hitchiu. At the time of delivery of the sheep CATTLE CASES. 997 sender did not communicate that the sheep were required for a particular market; but, on delivery of the sheep to Company, sender had asked the Company's foreman at Bedford, who said "the first train was away at 4 a.m., and would arrive at North- ampton at six." The sheep had not arrived until twelve o'clock, or about an hour before the close of the markets, and hence sender's loss. The County Court Judge non-suited Plaintiff. On the appeal case Justice Grrove said — " I think that this order must be for a new trial. On the authority of Blanche v. London and North Western, it seems to me that three hours' delay is sufficient to call for an explanation on the part of the Company. The decision of the County Court Judge seems to have gone on the absence of proof of damage, which was a question for the Jury." — Tried in the CouH of Common Pleas, Feb. 2, 1877. — From Weekly Reporter, vol. 25, page 323. 594. Foreman v. Great Western Railway. — Action for £40 for delay to 70 cattle out of a lot of 110, whereby their health was so injured that their value was diminished — Bristol to Battle, on South Eastern Railway. The Oreat Western Company ("Defendants) only professed to carry as far as Reading. The case turned on the question of owner's risk and Company's risk rates. Sender's drover (Honeysett) was an illiterate man, unable to read, and he accompanied the Com- pany's checker, at his request, to the goods office at Bristol, and signed the usual owner's risk consignment note. The Company proved that the rates at which they would carry cattle were posted up at the Bristol office. The charge for the cattle at owner's risk to Reading was £18 8s. 6d., while at the Company's maximum toll, at Company's risk, the charge would have been £75 7s. 4d. This rate as a whole had never been charged, nor was it shown in the rates book ; but it was posted at the office. The case was first tried at the Michaelmas Sittings, 1876, in ^Middlesex, before Chief Baron Kelly and a Special Jury, when a verdict was found against the Company for £40 ; but leave was reserved to Company to move to enter a non-suit, or a verdict in their favour, on the ground that the contract signed was reasonable. On the appeal case Plaintiff contended there was not sufficient to show he had the option of the two 998 CATTLE CASES. rates, and if there was, it was not a real option, but an unfair and unreasonable one ; the lower rate being so low, cattle dealers invariably avail themselves of it, which was evidence the higher rates were prohibitory ; that he (Plaintiff) was not liable on the alleged contract, for the drover did not, nor could he, read the contents of the note he signed. He quoted Gallagher v. Great Western (Irish Law Keports, 8 C.L., series 326) and Peek v. North Staffordshire. The Company contended Plaintiff had the option of two rates, and quoted Parker v. South Eastern (2 C.P. Div., 417), Harris v. Midland (25 W.E., 63), Leivis V. Great Western (3 Q.B. Div., 195). Baron Cleasbyread the Judgment of the Court (Chief Baron Kelly and Barons Cleasby and Pollock) — " The Company set up as a defence a contract in writing, signed by Plaintiff's agent, exempting the Company from liability, except for wilful mis- conduct. A question arose whether the Plaintiff was bound by the contract, seeing his agent could not read the document. It was in the usual form of consignment note, and the man who signed it (Honeysett) had brought beasts on more than twenty occasions, and had always signed similar documents. The Plaintiff knew the drover always signed similar documents. Under these circumstances, the Plaintiff, who sends a person to sign a document, is in the same position as if he had signed it himself, and, in the absence of fraud, is equally bound by it, whether he reads it or not. The Plaintiff, who sent such a person to sign the document, would not alter his own position by sending an illiterate j)erson. The exact question arose in Kirhy v. Great Western (18 L.T., N.S., 658). In that case, the serv^ant who signed was unable to read, and stated he was ignorant of the contents ; but Baron Martin held his signature sufficient. He said — ' It would be dangerous to hold that because the man who signed it did not know its contents the contract would not be valid, when he was sent for the express purpose of making the contract under which the goods were to be carried.' And we adopt what is said by Lord Justice Mellish in Parker v. South Eastern, (2 C.P. Div., 421) — ' In an ordinary case, where an action is brought on a written agreement which is signed by the Defendant, the agreement is proved by proving his signature ; and, in the absence of fraud, it is wholly imma- CATTLE CASES. 999 terial that he has not read the agreement and does not know its contents. The parties, however, may reduce their agree- ment into writing, so that the writing constitutes the sole evidence of the agreement without signing it ; but in that case there must be evidence — independently of the agreement itself — to prove that the Defendant has assented to it. In that case also, if it is proved that the Defendant has assented to the writing constituting the agreement between the parties, it is, in the absence of fraud, immaterial that the Defendant had not read the agreement, and did not know its contents.' But then, as to the conditions being reasonable — upon the question of there being an option we have, in the first place, the signed conditions which exjDressly offer the option, and it must be false unless such option existed ; and as these conditions had been in general use for a long time, and have been adopted by the Plaintiff, there ought to be some foundation for the conclusion that the statement in them is illusory. There is, then, the fact that the ordinary rates of carriage, with the carriers' usual responsibility, as appointed to be taken by the Company, were stuck up in the office; and as to these rates, there is no dispute that they were within the limit which the Company, by their Acts of Parliament, were authorised to take. There is, then, the evidence of Storer, the superintendent, saying that if the Plaintiff had declined the conditions in the consignment, he would have tendered him a general consignment note upon usual terms ; so that the fact of there being some option given between two rates and two contracts seems conclusively established, and there would be no necessity for leaving this question to the Jury. " Plaintiff pleaded the option was not a real one, because it was said the two rates were not available by reason of the higher rate being so high as to be practically prohibitory. We think, a priori, the charges within the parliamentary limit are not unreasonable or prohibitory. We are clearly of opinion that the mere fact that the lower rate was so low that dealers invariably availed themselves of it is no evidence that the higher rate was unreasonable or prohibitory. There is, therefore, no ground for impeaching the contract as unreasonable upon the objection last taken." 1000 CATTLE CASES. The learned Judge approved of the decisions in Gallagher V. Great Western, also Lewis v. Gi^eat Western, and concluded by giving Judgment for the Company. — Tried in Exchequer Division, Feb. 8 and March 4, 1878. — From Law Times Reports, vol. S8, page 851. 695. Ruddy V. Midland Great Western Railway Com- pany. — Action for £36 15s. 8d. for delay and loss of market of 40 pigs, Sligo to London, on a through contract. The pigs left Sligo 28th October, arrived at Dublin on 29th October, but, owing to a large quantity of cattle at Dublin waiting shipment, these pigs could not be shipped to Holyhead until 30th October at 12.30 p.m. They arrived at Holyhead that evening, and remained there until the following day, the 31st October, and left Holyhead by an ex^^ress goods train 12.15 p.m., reaching London 10 a.m., November 1, and were delivered that day at 1.30 p.m. Sender had the option of two rates, and selected and signed the lower, at owner's risk, as follows : — " Contract (No. 2). — To he signed for Oxen, Sheep, Calves, and Pigs, when shipped at Owne7-'s sole risk, at the reduced rates of carriage. — It is hereby agreed between the undersigned and the London and North Western Railway Company that the animals named on Cattle Ticket No. ^—^ are to be conveyed on the land part of the journey only upon the conditions of carriage applicable thereto, stated upon the cattle ticket handed to the undersigned by the Com- pany's agent ; and to be conveyed on the sea part of the journey, in considera- tion of the reduced rate charged, at the owner's sole risk, as stated in the con- ditions of carriage applicable to the sea journey, which conditions are — ' That the Company, in consideration of the reduced rate of freight charged, will not be accountable for any loss caused by delay or injury to live stock taking place before or at shipment, on the passage, or at or after landing ; nor for any loss of or injury to live stock, whether arising from, or consequent upon, the dangers or accidents of the seas, rivers, harbours, or navigation ; or from the act of God, the Queen's enemies, pirates, restraints of princes, rulers, or people, jettison, barratry, collision, stranding, fire, improper, careless, or unskilful navi- gation ; or from accidents connected with machinery or boilers ; or from any fault, negligence, or mistake of the master, pilot, officers, seamen, or crew of the vessels, or other servants of the London and North Western Railway Company, owners of the vessels.' " In cases in which the Company book cattle or live stock through they only receive such on conditions of there being room on board the steamer, and the Company are not hable to keep or feed any cattle or live stock until the sailing of the ordinary vessel next following, and the risk and expense of keep- ing the stock shall in all cases be borne by the owner." The case was first tried before Justice Lawson, Hilary Sittings, 1880, when the Judge directed a verdict for the CATTLE CASES. 1001 Company, reserving leave to the Plaintiff to move to have the verdict entered for him for £36 15s. 8d., being the contingent assessment of damages, in case the Divisional Court should be of opinion that the case ought to have been left to the Jury upon any other issues raised by the pleadings. Plaintiff appealed, and on the appeal case Chief Baron Palles said — "There are two counts — (1) Alleging a contract to carry in time for a particular market in Loudon ; (2) a con- tract to carry within reasonable time. We base our Judgment entirely upon the count alleging a contract to carry within a reasonable time. It is admitted that there was a contract to that effect. Two defences are presented — (1) That the cattle were carried and delivered for the Plaintiff in a reasonable time ; (2) that there was a reasonable condition in the contract for carriage signed by the Plaintiff which exempted the Com- pany from liability in respect of matters other than 'wilful misconduct,' and that the loss did not happen by reason of their wilful misconduct. I think it more convenient to discuss the second question first. The ground of the decision in Sheridan v. Midland (not reported) was that the 7th section of the 17 & 18 Vic, cap. Zl, •prima facie renders railway com- panies responsible for negligence, but by a proviso enables them in certain cases to take themselves out of that general enactment, and that by the general rules of pleading it lies upon the company to bring themselves within the proviso of the Act. Now there is no doubt that, by the offer of a reason- able alternative, a condition prima facie unreasonable may become reasonable (option of two rates) ; and therefore, treat- ing this as a good plea, the question fairly arose at the trial whether, as a matter of fact, such an alternative was offered to the Plaintiff. I am of opinion that the proof of the existence of such an alternative lay u})on the Company. In my opinion, so soon as it is shown that the onus lies upon the Company, there is an end of tlie case. The party upon whom the onus lies can never ask the issue to be withdrawn from the Jury (as done on first trial), unless there is an admission by the opposite party of facts sufficient to discharge the onus. It appears Plaintiff signed two documents — (1) the cattle ticket for the land journey, (2) the special agreement for the sea risk 1002 CATTLE CASES. — both of which were given in evidence. The time that he signed the document which is called the ' second document ' is not distinctly stated. The time that he signed the document which is called the ' legal ticket ' appears to have been when the clerk asked him whether the cattle were to be sent at the high rate or the low rate. It appears to me that if a person signs two documents as to the terms upon which a certain thing is to be carried, that he then pays his money, and that there are inconsistent provisions in the two documents, it must be for a Jury to determine the exact terms upon which the goods in fact were sent. No doubt, once a written contract has been proved, parol evidence is not admissible to vary that contract. Here every argument which can be urged to show that the carriage took place upon the terms contained in the paper A is equally cogent to prove that it was upon the terms contained in the other document. Upon that ground alone I am of opinion that there was a question for a Jury — whether the two rates offered must be reasonable to render the alterna- tive reasonable ; whether the two rates are reasonable intei' se must be for the Jury. " In my opinion the law has been rightly laid down by Lord Blackburn, and that in every case it lies upon the company to show that the higher rate is a reasonable rate. " Was there evidence to go to the Jury that the cattle were not delivered in reasonable time ? In the absence of evidence of the ordinary time of arrival, I would have great difficulty in holding that the dates during which the cattle were carried were not within reasonable time. The Plaintiff's case as to this point rests upon Mr. Sheridan's letter to Plaintiff, viz. — ' Mr. Skipworth writes that the pigs arrived in Dublin on 29th October, but as the Midland Great Western Company only advised us about half an hour before they arrived, and having more on hand than could be shipped that day, they were not sent forward until 30th Octol)er. — Yours truly, Joseph Sheeidan.' In my opinion that letter is evidence, and cogent evidence, to go to the Jury that the delay was unreasonable. For these reasons I am of opinion that the verdict ought to be changed into a verdict for the Plaintiff, and that he ought to have Judgment for the sum mentioned in Justice Lawson's reserva- CATTLE CASES. 1003 tion." Baron Dowse concurred. Judgment against Company. — Tried in the Court of Exchequer, June 29 and 30, 1880. — From Law Reports {Ireland), vol. 8, jpage 224. 696. Hill V. London and North Western Railway Com- pany. — Action for £10 for injury to a ram, Aylesbury to King's Langley. No declaration as to the value of the ram was made at the time of delivery, but at the back of the ticket was a notice that the Company would not be responsible for loss or injury to sheep over £2, according to section 7 of Eailway and Canal Act. The County Court Judge gave Plaintiff a verdict for £10. The Company appealed, when Judge Denman said — " The Judgment must be for the Company. The ram has been destroyed in consequence of injury sustained by reason of the neglect of the Company's servants in delivering. A case of neglect is within the Eailway and Canal Act, and this injury is undoubtedly within this proviso. It is therefore impossible to contend that the animal's full value may be claimed without any declaration of value having been made, because it happens • that in this particular case there has been no contract in writing." Judgment for Company, reducing verdict to £2. — Tried in Court of Common Pleas, April 30, 1880. — From Lata Times Reports, vol. 4^2, page 513. 697. Gordon v. Great Western Railway Company. — Action for £35 for delay and injury to ten cattle, Waterford to Grloucester. The carriage had been prepaid at Waterford, but through some mistake the Company wrongly demanded the carriage at Gloucester, not knowing of or recognising the pre- payment at Waterford. The cattle were delivered in Waterford 6th April, and arrived at Gloucester late in the evening of 7th April, and were unloaded, penned, and fed. On the morning of 8th April consignee's drover applied for the cattle, but the Company refused to deliver them without the carriage. On the 9th April the error was discovered, and the cattle then delivered to consignee. The case was first tried at the Gloucester County Court, and the Company pleaded exemption from liability owing to the 1004 CATTLE CASES. cattle being carried at " ovmer's risk." The Plaintiff had signed a special contract note with the following condition : — " The Company are not to be liable in respect of any loss or detention of or injury to the said animals, or any of them, in the receiving, forwarding, or delivery thereof, except upon proof that such loss, detention, or injury arose from the wilful misconduct of the Company or its servants." The Judge of the County Court refused to non-suit Plaintiff, and gave a Judgment for £35 on the ground that, although no " wilful misconduct " on the part of the Company's servants had been proved, their conduct amounted to refusal to dehver, which was not covered by the terms of the special contract. The Company appealed, and on the appeal case Justice Grove said — " It was not necessary to determine the question of ' wilful misconduct.' IMere honest forgetfulness could not, I think, be construed to be ' wilful misconduct.' The refusal to deliver was the result of the carelessness of the booking clerk in omitting to enter the words ' Carriage paid ' on the consignment note, and I am not prepared to say whether such a state of facts would or would not amount to a case of wilful misconduct within the meaning of the condition. I prefer to rest my decision on the ground that the case does not come within the terms or conditions of the ticket. Does the word * detention ' cover the case of au actual refusal to deliver the cattle under what turned out to be an unfounded claim of right ? I am of opinion it does not. I am inclined to think that such a state of things was never contemplated by the parties at the time of entering into the contract. The deten- tion was not a casual or accidental detention in the course of delivery, but an intentional detention upon a supposed right of lien which they did not possess. The condition could not reasonably import an absolute right in the Company to detain goods as long as they pleased on any claim, however untenable it might be. I think the words, ' any loss, damage, or deten- tion in the receiving, forwarding, or delivery,' must be read ' any loss, damage, or detention ' during the course of ' the receiving, forwarding, or delivery.' It could not be said that the cattle were detained in the course of delivery, for they had arrived at the place to which they were to be carried." Justice Lopes concurred, and said — " Upon the facts there CATTLE CASES. 1005 appears to have been a refusal by the Company's servants to deliver the cattle to the consignee at a time when the latter had an absolute right to them. The refusal to deliver was unjustifiable. It was competent to the Company to have at once made inquiry as to the payment of the carriage of the cattle. This they did not do, but kept the cattle ; and this, I think, amounted to ' wilful misconduct.' " Judgment against Company. — Tried in CouH of Queen's Bench, November 18, 1881. — From Law Tim^es Reports, vol. 4:5, page 509. Cattle Escaping from Trucks in Transit, and Killed or Lost. Case No. Chippendale \ . Lancashire and Yorkshire (\^6\) ... ... 698 Three heifers escaped from a truck — Company held exempt from liability owing to special contract. Gregory y. West Midland Railway Company (1S)%^) ... ... 699 Cow fell or jumped out of a waggon — Waggon held not to be a suitable one — Company held liable in spite of a special contract. Great Western y. Blower {ISl 2) 700 Bullock, from inherent vice, jumped out of a waggon in transit, and was killed — Company held not liable. 698. Chippendale \. Lancashire and Yorkshire Railway Company, — Action for £22 4s. for three heifers that got out of a cattle truck through a space between the close-boarding at the lower part of the side of the truck and a rail which ran round the top of the truck, whereby two heifers were killed and the third much injured — Wigan to Bury. There were thirteen beasts put into the truck, and a drover's pass was issued. Plaintiff signed the following risk note, and had a duplicate of it given him : — '^N.B. — This ticket is issued subject to the owner undertaking all risks of conveyance whatever, 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." Plaintiff contended the Company were liable notwithstand- ing the special contract, as the truck was defectively con- structed by reason of the space between the top rail of the truck and the close-boarding being too great. The County 1006 CATTLE CASES. Court Judge at Wigan held that, owing to the special contract, Plaintiff had no ground of action. Being urged by Plaintiff's counsel, he left it to the Jury to give an opinion whether the truck was unfit and unsafe, and if so, what damage Plaintiff sustained. The Jury considered the truck was defective, and that Plaintiff had suffered a damage of £21 4s. The Judge, however, directed a verdict to be entered for the Company. An appeal was taken to the Queen's Bench, when Justice Coleridge gave Judgment — " To take the risk note literally would certainly be to exempt the Company in all cases what- ever against any risks of conveyance and against any injury or damage accruing to the animals while travelling. The Plain- tiff had a full opportunity of knowing what the carriage was, for it is found that he saw one of the beasts put into it. Con- fining myself, therefore, to the circumstances of this case, and by no means laying down any general rule whatever, I am of opinion that the Plaintiff was not entitled to maintain this action, and that by the terms of the ticket it is to be under- stood that the Plaintiff took upon himself all risk whatever of damage to the animals during the journey, and that conse- quently the Company are fully protected." Justice Erie — " I think that the Plaintiff entered into a contract by which he undertook not to call upon the Company for any damage such as that which has accrued. I take it that the carriage was fit for the journey and fit for the weight, and that the damage has entirely arisen from the freight being living animals, who made all effort to escape, and so injured themselves. That seems to me to be a risk for which the Company peculiarly said that they would not be responsible. I think that a limitation, however wide in its terms, being in respect of live stock, is reasonable, for, though domestic animals might be carried safely, it would be almost impossible to carry wild ones without injury." Judgment for Company. — Tried at the Court of Queen's Benchy Michaelmas Term, 1851. — Law Journal Reports, vol. 21, page 22. 699, Gregory v. West Midland Railway Company. — Action for £30 for a cow that, during transit, fell or jumped out of a truck. The cow and a heifer were put in the same I CATTLE CASES. 1007 truck, but not tied with halters — Abergavenny to Newport. The cow fell into or got into land adjacent to the railway, and the person owning the land had a claim against the Company. He killed the cow, and kept the carcase for his own use. The Plaintiff was not present when the cattle were loaded, and did not see the truck. The Plaintiff signed a cattle ticket with the usual conditions — (1) The Company were to be free from risk and any loss or damage in loading or unloading, &c., or injury in transit from any cause, &c., and the cattle were to be carried at owners risk ; (2) that the sender is required to see to the efficiency of the waggon before he allows his stock to be placed therein, and defects pointed out in writing before the train leaves the station ; (3) the owner shall ride free in the waggon to take care of the stock, &c. The case was first tried before Justice Byles, at Mon- mouthshire Summer Assizes, 1863, when a verdict was given for Plaintiff, £S0, with leave to the Company to appeal to reduce to £15 if Plaintiff should be entitled to the carcase of the cow only, it being admitted that the truck was not a proper truck for the purpose. Chief Baron Pollock said — " If the case of M'Manus v. Lancashire and Yorkshire Railway Company had been undisturbed by the Court of Error, I should have now thought the Company entitled to our Judgment ; but that case has been distinctly overruled, and upon the very point which decides the present question." Baron Martin said — " I have a very strong opinion that the view I took of the Act which is contained in my Judgment in the House of Lords (Peek v. North Staffordshire Railway Company^ 32 L.J.E., 258, Q.B.) is the correct one, but I yield to the House of Lords and act upon their Judgment. Looking upon this case and that of M'Manus together, it seems I am bound to give Judgment against the Company. It strikes me the real meaning of the second condition is, the Company intend — ' In addition to any damage arising from the loading, we state we will not be liable for any misfortune arising from any defect in the waggon or the locomotive power ; ' and they put it upon the owner to examine the waggon. The first and third conditions together are framed in the strongest words the English language can express the Company's determination not to be liable — 'We make no 1008 CATTLE CASES. charge for it ; our charge is simply for the use of the waggon and locomotive power.' I cannot conceive how words can be used more strongly. The conditions do provide for the Company's non-responsibility throughout, which, in M'^Manus's Case, is said to be an unreasonable thing to do, and the condition creating it is therefore void. It is, in point of fact, instead of leaving people to take care of themselves, attempting to take care of them by legislative enactment." Baron Bramwell concurred, saying — " The House of Lords decided a contract may be reviewed by a Judge, who is to say whether it is reasonable or not. I confess I cannot understand how anyone can say a general condition in reference to all mankind is reasonable, or how you can go into the question whether a bargain between two people is reasonable or not. However, for better or for worse, the matter is established. I think there can be no authority as a matter of law. Whether the particular con- tract is or is not just and reasonable must depend upon the circumstances of each particular case. I concur, owing to M^Manus^s Case, we must hold the first condition to be neither just nor reasonable, although I own, as a matter of fact, that it is not void if the Plaintiff chose to agree to it." Baron Channell concurred. Judgment against Company. — Tried in Court of Exchequer, January 14 and 22, 1864. — From Law Journal Reports, vol. 33, page 155. 700. Great Western Railway Company v. Blower. — Action for value of a bullock, one of 33 cattle loaded in four waggons, Dingleston to Northampton. Near Oxford Koad Station it was found the bullock had escaped out of the truck, and its carcase was found on the side of the railway a few miles down the line, where it had been killed by a train. The case was first tried in the Monmouthshire County Court, and a verdict given against the Company, The Company appealed, and on the appeal case Justice Willes said — " There was an accident without negligence. Did it result from the nature of the thing itself carried ? The facts show that it did. It was found that the truck in which the animal was carried was in every respect proper and reasonably sufficient for the con- veyance of the bullock. The cattle were loaded on to the trucks in the proper and usual way, and the doors were properly CATTLE CASES. 1009 closed and secured. The trucks were in every respect proper, and there was no actual negligence whatever. Merely suggest- ing that there might be a better truck is not sufficient to meet such findings. No carrier is obliged to have a new carriage for every journey. It is sufficient if he provides one which, without any extraordinary accident (such as this was), will probably perform the journey. The accident was caused by some in- herent vice in the bullock." Justice Keating concurred. Judg- ment for Company, reversing the County Court decision. — Tried in Court of Common Pleas, May 30, 1872. — F^'om Lata Journal Reports, vol. 41, _2:>a^e 268. Cattle Weecked and Lost at Sea. Case No. Moore v. Midland (1875) 701 Railway company liable foi" negligence on sea part of journey, although they hire a steam packet company to carry that part of the jonrney. Doolan Y. Midland (1S77) 702 Cattle lost in wreck of " St. Columha "— Risk note signed — Held to be an unreasonable condition. 701 . Moore v. Midland Raihvay Company. — Action for £611 10s. for loss of cattle wrecked in the "St. Columba " steamship on the Skerries Kocks, off Holyhead, June 21, 1873 — Dublin to St. Ives. It was admitted that the loss of the ship arose from the negligence of the crew. One of the conditions of the carriage was — " That the Company will not be accountable or responsible for loss of or any damage or injury to the cattle arising from any default or negligence of the master or any of the officers or crews of the Company's (City of Dublin Company) vessels." Justice Morris said — " I agree entirely with my brother Lawson. It is quite clear that at the time of the passing of the 17 & 18 Vic, cap. 31 (the Kailway and Canal Act of 1854), the Kailway Company could have protected itself by such a con- dition as this, and so could a steam packet company. The 17 & 18 Vic, cap. 31, sec. 7, allowed railway companies to bind 61 1010 CATTLE CASES. themselves in conditions that were just and reasonable, but it left the law much the same as regards steam packet com^panies. However, it was soon found that the railway companies, who were fast becoming steam packet companies, were practically monopolies, for, if a man did not adoj^t their mode of transit, he would be left half-way, and could never arrive at the end of his journey. Eailway companies were accordingly prohibited from creating a monopoly by the 31 & 32 Vic, cap. 119, sec. 16, which extended 17 & 18 Vic, cap. 31, to cases 'where a com- pany is authorised to build, or buy, or hire, and to use, maintain, and work, or to enter into arrangements for using, maintaining, or working, steam vessels for the purpose of carrying on a com- munication,' &c. It was soon seen between the passing of the Act of 1868 (31 & 32 Vic, cap. 119) and the Act of 1871 (34 & 35 Vic, cap. 78, sec. 12) — an interval of about three years — that the former Act did not cover all the cases, for a railway company might practically carry out the same end by not building, buying, hiring, using, maintaining, or working, or entering into such arrangement, but by entering into an arrangement with a steam packet company, under which the steam packet company might work the vessel. Accordingly the Act of 1871 (34 & 35 Vic, cap. 78, sec 12) may be inter- preted as saying — ' Eailway companies, if you enter into any through-booking arrangement, and make any agreement what- soever with a steam packet company, you will be just as liable for the cattle, goods, and property as if the accident took place on your own vessel.' " Justices Lawson and Keogh concurred. Judgment against the Company. — Tried in Court of Common Fleas, (Ireland), Jan. 12 and 13, 1875. — Fro77i Irish Reports, Comimon Law Series, vol. 9, jjage 20. 702. Doolan v. Midland Raihvay Company. — Action for £765 for 63 cattle lost in the "St. Columba," which was wrecked on the Skerries Eocks, near Holyhead. The Plaintiff, a cattle dealer in the county of Carlow, made a through contract with the Company, subject to the usual con- ditions of owner's risk, to carry between Dublin and St. Ives. The case was first tried at the Kildare Summer Assizes, 1874, before Chief Baron Palles, when the Jury found that the loss CATTLE CASES. 1011 was occasioned by the negligence of the crew of the " St. Columba," and gave Plaintiff a verdict for £765. The Com- pany obtained a rule to enter a non-suit or a verdict for them on the ground that they were exempted from liability for negligence by the condition in the risk note. The Court of Common Pleas discharged the rule on the ground that the condition was rendered void by the Railway Eegulation Acts. The Company then appealed to the Exchequer Chamber, where the decision of the Common Pleas was reversed by Judges Palles, Fitzgerald, Deasy, and Dowse, the three other Judges dissenting. This appeal was then brought to the House of Lords (Irish Reports, 10 C.L., 47J. The arguments of counsel turned upon the construction of the sections of the Eailway Acts of 1854, 1868, and 1871. Lord Blackburn, July 27, 1877, gave Judgment — "The Company, having no special powers for building or working steam vessels, made the contract of carriage in Dublin, and procured the City of Dublin Steam Packet Company to carry the cattle to Liveqjool. The Jury found the cattle were lost by negligence of the crew, and not by any peril of the sea. The special contract of carriage includes the words ' improper, careless, or unskilful navigation, or any default or negligence of the master or any of the officers or crews of the Company's vessels.' If, therefore, the condition is valid, it protects the Com- pany from liability for the loss which happened. The issue is wrapped up in the contention whether or not the contract is rendered void by the 12th section of the Regulation of Railways Act, 1871 (34 & 35 Vic, cap. 78, sec. 12). The construction of this section is not a simple matter. The Court of Common Pleas in Ireland, in Moore v. Midland Raihvay Company (Irish Reports, 9 C.L., 20), and the Court of Exchequer and Court of Appeal in England, in Cohen v. South Eastern Railway Com- pany, have unanimously held that the whole of the Railway and Canal Traffic Act, 1854 (17 & 18 Vic, cap. 31), is extended to the whole of the traffic on such steamboats as a railway company own or work. The Act of 1871, by section 1, is to be construed as one with the Act of 1868 (31 & 32 Vic, cap. 119); while the 16th section of this Act (1868) extends the provisions of the Railway and Canal Traffic Act ' to steam vessels and the 1012 CATTLE CASES. traffic carried on thereby.' The case of Peek v. North Stafford- shire Railway CoTnpany (27 L.J., Q.B., 465), by the decision of this House, settles ' that a condition having the effect of exempting the carrier from responsibility for the negligence or fraud of his own servants is not just and reasonable within section 7 of the Railway and Canal Traffic Act, 1854.' In the present case the Midland Company did not own or work the steam vessel. They were not, therefore, brought within the provisions of the 16th section of the Act of 1868. They, however, did contract to carry the cattle, and procured them to be carried in a steam vessel not their own. By the Eailway Clauses Consolidation Act of 1863 (26 & 27 Vic, cap. 92), section 31 expressly extends the provisions of the Act of 1854 'to steam vessels and the traffic carried thereby.' The railway interest sought to take advantage of the tendency of the Eailway Eegulation Bill of 1871 to introduce an enactment making their liability when they were procuring other ship- owners to carry for them no greater than if they were carrying in their own ship, the burden of proof that the misfortune happened while the goods were on the ship being on the com- pany. This called attention to the fact that the Act of 1868 left a railway company at liberty to impose any conditions when they procured other shipowners to carry for them. It was thought the restrictions placed on companies when carrying in their own vessels should be extended, and be made the same as when carrying in vessels not their own. Again, if a railway company had contracted to carry partly by rail and partly by sea, and partly by coach or other conveyance, on which they might by contract impose any condition, the burden of proof that the misfortune happened after the goods had passed out of the steamship ought to be on the railway company. It is the unfortunate attempt to make one clause instead of two serve for two purposes that has created the obscurity. The only remaining question is whether the condition of the risk note is to be adjudged 'reasonable' within section 7 of the Eailway and Canal Traffic Act, 1854. This condition tries to exempt the Company from all liability for the negligence of their employes. Now, if any condition can be unreasonable within the decision of Peek v. North Staffordshire Railway CATTLE CASES. 1013 Company i this is. I therefore advise your Lordships to reverse the Judgment and allow the appeal, with costs." The Lord Chancellor (Cairns) and Lords O'Hagan and Grordon concurred. Judgment for Plaintiff. — Tried in the House of Lo7'cls, July 12, 13, 17, and 27, 1877. — From Appeal Cases, House of Lords, vol. 2, page 792. Cattle Killed or I>''jured in Transit. Casa No. Byrne v, Chester and Hohjliead (1855) ... ... ... ... 703 Two cows died in transit — Company held not liable under special contract. Pardington v. SoutJi Wales (1856) 704 Cattle smothered in a van from the lid falling down — Company held protected by their special contract note. Price v. North L. S. N. Co. (1864) 705 Cow killed on steamer by blow from rope's-end — Company held not liable. Rain v. Glasyoiu and South Western (1869) ... ... ... 706 Two cattle trodden to death from overcrowding — Company held not liable. Irvine v. Dundallc and Newry Steam Packet Co. (1875) ... 707 Company held not liable for a bullock smothered on sea voyage. Harris w Midland ... ... ... ... ... ... 708 "When special contract exempts all liability except negligence. Plaintiff to prove negligence. Corriyan v. Manchester Sheffield and Lincolnshire (1879) ... 709 Any condition imported into a contract of carriage at Com- pany's risk may invalidate sender's fair option of two rates, and render the owner's risk rate inoperative to protect the carrier. M'Nalhj V. Lancashire and Yorkshire (1880) 710 Two cows suffocated on the sea portion of the journey, Liverpool to Manchester. 703. Byrne v. Chester and Holyhead Raihvay Company. — Action for £25 7s. for death of two cows and injury to eight others, Dublin to Warrington. Plaintiff proved delivery to Company at Dublin on loth July ; the next day the cattle were loaded at Holyhead by Plaintiff, who travelled on a free pass with the cattle. The cattle were not unloaded at Warrington till after midnight on the 16th July, when one cow was dead, 1014 CATTLE CASES. and another died shortly after. The ten cows consisted of five that had recently calved, and the five others were " springers," or cows shortly about to calve. Plaintiff was cautioned at Holy- head that it was unsafe to load so many cows in one waggon. It was customary to issue the tickets at Holyhead. The charge being per waggon-load and not per head, it could not be ascertained until the stock was loaded the amount of carriage. The Company pleaded the special contract at back of cattle ticket. Plaintiff had the cattle ticket placed in his hand, but he refused to admit this document had been given him at Holyhead, but said he received a paper something like it ; one of his witnesses admitted he always received at Holy- head similar tickets. The Judge told the Jury if they believed Plaintiff had received the ticket as stated, and held custody of it till he arrived in Warrington, and if they considered he had had reasonable opportunity of reading the contents, they must assume his cognisance without more direct proof. Verdict for Company. — Tried in Court of Exchequer, Dublin, before Baron Green and a Common Jury, December 4 and 5, 18.54. The Plaintiff made an application before three Barons of the Exchequer, and it was ruled the Judge had misdirected the Jury, and a new trial was granted. Plaintiff now contended the Company quoted £3 10s. for the carriage of the ten cows, and that payment had been ten- dered in Dublin. The Company denied this, and contended Plaintiff was told he might send the ten cows, and that the rate would be £S 10s. jper vjaggon, and no question was asked as to how many would go into a waggon. The Chief Baron charged the Jury, and left to them the following points — (1) Was the contract in Dublin to convey ten cattle, or cattle at £3 10s. per waggon-load? (2) Was a new contract, limit- ing the liability of the Company according to the indorsement on the cattle ticket, assented to by Plaintiff at Holyhead ? (3) Was the injury to the cattle occasioned by the neglect or default of the Defendants or their servants ? (4) Was the injury occasioned by the overcrowding by Plaintiff of the cattle in the waggon ? The verdict was in favour of the Com- pany on every point. Exceptions were taken by Plaintiff's counsel, and notice given that the case would be brought before CATTLE CASES. 1015 the twelve Judges of Ireland for reconsideration. — Tried before the Chief Baron, in Dublin, June, 1855. — From Irish Jurist, vol. I, N.S.,%)age 174. 704-. Pardington v. South Wales Raihvay Company. — Action for £135 for death of ten cattle loaded in a salt van. The pin of the lid of van did not prevent the lid closing down, which led to the cattle being smothered — Newport to Grlou- cester. Plaintiff's agent, Morgan, signed a note with the following condition : — " 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, from suffocation, or from being trampled upon, bruised, or otherwise injured in transit, from fire, or from any other cause whatsoever." A drover's pass was issued, but the man travelled in the guard's van. The Company contended this special agreement relieved them from liability. The case was first tried at the Gloucester Summer Assizes, before Baron Alderson, who held that the special contract protected the Company, but gave Plaintiff leave to appeal. On the appeal case Plaintiff contended there was evidence of negligence ; that the truck was of an improper description, and, even if fit for the purpose, it was only by having the van lid kept properly open ; that the 7th section of the Kailway and Canal Act, 17 & 18 Vic, cap. 31, laid down the conditions that the contract must be reasonable, as follows : — " 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 contrary thereto or in anywise limiting such liability ; every such notice, condition, or declaration being hcrel)y 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 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 special contract between such company and any other parties respecting the receiving, forwarding, or delivering of any animals, articles, goods, or things as aforesaid shall be binding upon or affect any such party unless the same be signed by him or by the person delivering such animals, articles, goods, or things respectively for 1016 CATTLE CASES. carriage : provided also that nothing herein contained shall alter or affect the rights, privileges, or liabilities of any such company under the said Act, 11 Geo. IV. and 1 Will. IV., cap, G8, with respect to articles of the description mentioned in the said Act." Chief Baron Pollock said — " I am of opinion there ought to be no rule for Plaintiff. It appears to me quite reason- able that such a stipulation should be made as was made in the present case. Accommodation is provided by the Com- pany for the cattle which are to be carried ; the drovers are permitted to go with them, and they have full opportunity of knowing whether the accommodation provided is sufficient or not. The Plaintiff had been expressly told beforehand what the terms were upon which the cattle were to be received and carried, and he has no right now to say those terms are unreasonable. Why should the Company not say, seeing that the common law liability does not apply to cattle, ' If you insist upon our carrying your cattle, we will carry them, but it must be upon the terms that we shall not be responsible for any injury which may happen to them ' ? They only hold themselves out as carriers of horses and cattle sub Tnodo." Barons JNIartin, Bramwell, and Alderson concurred, and considered the contract just and reasonable ; and the latter said — " I think the negli- gence was really that of Plaintiff's servant, and that the Com- pany are not liable on that ground, for he never took the trouble from the beginning to the end of the journey to look at the cattle to see whether they were right." Judgment for Company. — Tried in Court of Exchequer ^ November 5, 1856. — From Lau) Journal Reports, vol. 26, page 105. 705. Price V. North Lancashire S. N. Company. — Action for value of a cow, one of five, Belfast to Fleetwood. Plaintiff pleaded that at Fleetwood one of Company's men struck the cow a severe blow with a rope's-end, which knocked her down, and she had to be slung on to quay by ropes, and soon after died. Company pleaded special contract at lower rate, signed by Plaintiff, who, although he did not read contract note at the time, the Judge said he must have known its contents. The Company, by contract, were to be exempted from liability for any act, neglect, or default of their men or officers. The Company alleged the cow, in stepping to hatchway, slipped and fell; that she was struck to raise her, but she was CATTLE CASES. 1017 unable to rise. Plaintiff's man, who got a free pass to look to the cattle, was on the pier head instead of looking after his cattle. Judge held the Company, as common carriers, could limit their responsibility by special contract, and no negligence had been proved. Verdict for Company. — Tried before Judge Hayes, on appeal, at Belfast, Aug. 5, 1864, and decision of Chairman of County Antrim reversed. — From Irish Clearing House Reports, No. 36, page 59. 706. Rctin V. Gkisgoiv and South Western Raihvay Company. — Action for value of two Gralloway cattle that fell in a waggon with eleven other cattle, and were trampled to death — Bridge of Dee to Norwich. Plaintiff personally called at the station and bespoke a truck of specified dimensions (15 feet). He and his man next day (12th March, 1867) loaded the cattle in a 15-feet truck, and sent them off without any drover, who would have been allowed to travel free. He signed the Company's special contract, accepting all risk. The case was twice tried, before Sheriff Substitute and before the Sheriff, who gave a verdict for Plaintiff, holding that the onus was on the Company to prove that they had not been guilty of negli- gence. An appeal was taken to the Court of Session, when the following decision was given : — " The Lords find that the injury to the cattle arose from the fault of the Plaintiff in putting thirteen cattle into a truck not sufficiently large to contain and carry them safely on so long a journey. Find there is no evidence of any negligence or fault on the part of the Eailway Company or their servants. Find the Company, in point of law, are not responsible for the loss." Judgment for Company. — Tried before Lords Deas and Kinloch, Court of Session, Edinburgh, January 29, 1869. — From Clearing House Reports, No. 206, page 248. 707 , Irvine v. Dundalk and Neivry Steam Packet Covii- pany. — Action for £18 15s. for a bullock smothered in a lot of seven on voyage, Newry to Ardrossan. Plaintiff pleaded that the special contract signed only referred to the neglect of officers and men engaged in the navigation of vessel, and that the neglect of the bullock man, who stowed the cattle in the hold, was not specified or included in the special contract. He admitted the Company had power to bind persons by 1018 CATTLE CASES. conditions, however unreasonable. The case was first tried before the Chairman of Quarter Sessions, who gave a verdict for Plaintiff, and this was the appeal. Judge reversed the decree of Court below, considering the special contract relieved Company of responsibility. — Tried before Chief Baron Palles, Armagh Assizes, 2nd March, 1875. 708. Harris v. Midland Railway Comjpany. — Action for value of a cow found dead in the truck at Bedford, and which must have been killed between Market Harborough and Bed- ford. The Plaintiff's son, who shipped the cattle, signed the following note : — "I heave received the counterpart of this ticket, and agree to abide hj the conditions expressed on the back thereof, in consideration of the Company's charging me as above, being less than they are by statute entitled to charge. Signed . In presence of ." On the back was as follows : — "The Company will not be responsible for any loss or injury to any horse, cattle, or other animal, in the receiving, loading, forwarding, unloading, or delivery thereof, if such damage be occasioned by being trampled on, or by the kicking, plunging, or unruliness of the same or of any other animal forwarded therewith ; nor for any injury or damage occurring to the same whilst travelling, or in loading or unloading, unless such damage or injury shall be caused by negligence on the part of the Company or their servants." The cow, when skinned, was discovered to have its spine greatly injured and the shoulder bone broken. Baron Cleasby said — " I am of opinion the Judgment must be for the Company. The onus of proof is on the Plaintiff. The Company engage to carry safely, but to be liable only for negligence. There was no evidence of negligence here, only conjectiu-e. The injury must have been received during transit, but there is not sufficient evidence to show how it was inflicted. The Plaintiff must show that death was caused by what he alleges. The fact of its being found in the condition alleged upon its arrival cannot be sufficient to show that such a state of things was brought about by negligence of the Com- pany. The other question is — Are the conditions reasonable under section 7 of the Eailway and Canal Act ? The . clause here is that the Company are not to be responsible for anything unless caused by negligence. I think this is a reasonable CATTLE CASES. 1019 condition in every respect, and that the Company may protect themselves by two tariffs, which they seem to have done here." Justice Gfrove concurred. Judgment for Company. — Tried in Appeal Court, Nov. 9, 1876.— i^rom Weekly Reporter, vol. 25, page 63. 709. Corrigan v. Manchester Sheffield and Lincolnshire Railway Company. — Action for cattle killed and injured on sea journey, and through-booked Dublin to Huntingdon and Dublin to March. The sender had an option of Company's rate and owner's rate, and he selected the owner's risk rate. Attached to the o^vner's risk rate was a condition — " The Company will not be resiwnsible for loss arising in any way from the overcrowding of such waggons, or for injuries done in the loading or unloading in consequence of one animal injuring another." Baron Fitzgerald said — "The substantial question which we have to decide is whether the condition annexed to the alternative undertaking offered by the Company is just and reasonable within the meaning of the statute 17 & 18 Vic, cap. 31, sec. 7. If, therefore, the special contract actually signed by the Plaintiffs can be supported as binding them, it can be so only by reason of the alternative contract offered being held 'just and reasonable,' and, as I think, just and reasonable as a whole, and not just and reasonable only as respects its condition relating to the sea part of the transit. The contrary was hardly argued before us, and it seems to have been in effect so decided in the case of Lloyd v. Waterford and Limerick Railway (15 Irish Common Law Reports, 37). The alternative here offered to the Plaintiffs was not the common law liability in respect of default or neglect, but only another special contract with conditions limiting such common law liability." Judgment against the Company. — Tried in Court of Exchequer (Ireland), Nov. 21 and Dec. 8, 1879. — From Law Reports (Ireland), vol. 6, page 90. (Opinion of Samuel Walker, Q.C. — The decision in Corri- gan's Case leaves untouched the principle on which the contract in that case was framed, viz., that by the offer of an alternative rate the railway company may limit its responsibility in the case where the reduced rate is charged. Corrigan^s Case, 1020 CATTLE CASES. however, establishes that the only safe way in the case when the full rate is charged and accepted is to leave the liability of the carrier in such cases free altogether from condition or con- tract, as to land as well as sea, and let the law measure the liability.) 710. M^Nally v. Lancashire and Yorkshire Raihvay Company. — Action for loss of two fat cattle, suffocated on the voyage from Dublin to Liverpool, en route for Manchester, and for injury to 58 other fat cattle, part of same consignment. The cattle were carried at owner's risk. The Plaintiff con- tended that the City of Dublin Company, who carried the cattle from Dublin to Liverpool, had been guilty of misconduct and default in omitting, " wilfully and wrongfully," to set the wind sail communicating with the part of the steamer in which the cattle were carried. They were also charged with unreasonable delay in unshipping the cattle at Liverpool, resulting in injury to them and deterioration of their value. Plaintiff contended that the contract at owner's risk which he had signed was bad, inasmuch as he had not a reasonable alternative, as one of the conditions of the Company when the cattle were carried at the Company's risk was as follows : — "That the Company will not be accountable for the correct selection of each owner's stock on landing, nor on loading into the waggons at Liverpool Station, nor on unloading at destination." On the appeal case Lord Chancellor O'Hagan said — " It may now be taken as settled that a contract tendered to a person having property to be conveyed which is prima facie neither just or reasonable may become so if he is at the same time offered the opportunity of entering into one which is just and reasonable — does not agree to convey the cattle under the ordinary carrier's liability, but under that liability subject to certain specified conditions, of which one of the most important is that on which controversy in the case occurs. I agree with the Chief Baron that if any of these conditions be unreasonable, the alternatives offered must be unreasonable ; whilst if all of them be just and reasonable, that alternative must be also just and reasonable, although it may modify or limit the ordinary liability of the carrier. The Company have control of the CATTLE CASES. 1021 steamer, of the waggons, of the arrangements for unloading. The person whose goods are committed to them is at the mercy of their servants, over whom they exercise their control; and yet, if this condition be taken — as I think it ought to be taken — in its literal sense, he has absolutely no remedy, what- ever may be their neglect or their malversation in mixing up the cattle of the various dealers, and doing, it may be, a great and irreparable wrong." It was thus held that because the carrier, when professing to carry under his common law liability, attached a special condition to that, then the Plaintiff, in selecting one of the two conditions of carriage, had not a just and reasonable alternative afforded him ; hence the contract was vdtiated. Thus the conclusion from the decision is that no conditions whatever can be attached when the traffic is carried at the Company's risk, except such as a Judge may hold to be just and reasonable, in accordance with the ordinary liability at common law of a common carrier. Judgment against the Company. — Tried in the Court of Appeal (Ireland), Nov. 10 and 11 and Dec. 15, 1880. — From Laiv RepoHs, vol. 8, page 81. Cattle Killed on Eailway Ckossings and Stations. Case No. STiarrod Y. London and No rtJi Western (1S49) 711 Sheep killed on line — Value not recoAerable on an action for trespass. RicJcetts \. JSast and West India Docl-s (l8o2) 712 Twelve sheep killed on railway — Strayed from a close beyond the adjoining close — Company held not liable. Manchester Sheffield and Lincolnshire v. Wallis (1854) 713 Two horses straying passed through an open gate of station yard on to the line, and were killed — Company held not liable, as horses were not lawfully using public road. Ellis Y. London and South Western (1857) 714 Cattle killed on line — Occupation roadwaj- — Plaintiff did not keep the gate locked — Company held not liable. Boberts Y. Great Western (l8oS) 715 Bull, after being unloaded, strayed on to railway and was killed — Company held not liable to keep up any fence from loading bank to roadway. 1022 CATTLE CASES. Case No. Fennell v. Wate7]fo7-d and Limerick (1874) 716 Cattle killed on line — No evidence as to who opened the crossing gate. Sneeshy v. Lancashire and YorlcsJiire (1874) 717 Cattle passing over a level crossing frightened by shunting of waggons near — Cattle escaped from drovers, got on to another part of the line through a garden fence, and were killed — Company held not liable. 711. Sharrod v. London and North Western Railway Company. — Action for seven sheep that had strayed on the line and been killed by a train driven at the rate of forty miles an hour. It was alleged there was insufficiency of the Com- pany's fence. The action was raised in the form of trespass — that the Company's engine, being driven on a public highway at unreasonable speed, had trespassed upon the sheep and killed them. The case was first tried at the Stafford Summer Assizes, 1848, before Baron Eolfe, when a verdict was given against the Company for £10, leave being given to move to enter a non-suit on the objection that the action, if maintain- able at all, should have been in case and not in trespass. On the appeal Baron Parke said — " The law is well established on the one hand that whenever the injmy done to the Plaintiff results from the immediate force of the Defendant himself, whether intentionally or not, the Plaintiff may bring an action of trespass ; on the other hand, that if the act be that of the servant, and be negligent, not wilful, case is the only remedy against the master. Our opinion is that in all cases where a master gives the direction and control over a carriage or aninaal or chattel to another rational agent, the master is only responsible in an action on the case for want of skill or care of the agent. If the Plaintiff's cattle had a right to be on the railway, the Plaintiff has a remedy by an action on the case against the Company for causing the engine to be driven in such a way as to injm"e that right ; for the Company were bound to see that their carriages did not travel at such a speed as to make it impossible to avoid other persons who had a lawful right to be there. If the cattle were wrongdoers, there has been no neglect or misconduct for which the Defendants are CATTLE CASES. 1023 responsible. If the cattle had an excuse for being there, as if they had escaped through defect of fences which the Company should have kept up, the cattle were not wrongdoers, though they had no right to be there, and their damage is a consequent damage from the wrong of the Company in letting their fences be incomplete or out of repair, and may be recovered accord- ingly in an action on the case." Barons Alderson, Eolfe, and Piatt concurred. Judgment for Company. — Tried in Court of Exchequer, December 10, 1849. — Laiv Journal Rejjorts, vol. 20, •page 185 ; also reported in Raihvay and Canal Cases, vol. 6, page 239. 712. Ricketts V. East and West India Docks and Birming- ham Junction Raihvay. — Action for the value of twelve sheep that strayed on to the railway and were killed. It appeared the sheep were in pasture beyond the railway, that they strayed through Plaintiff's defective fence into a close belonging to the Grreat Northern Kailway Company, and across this close and through a defective fence on to the railway. Plaintiff was not a licensee or temporary occupier of the Grreat Northern Company's close. The Company contended that by the 68th section of the Kailway Clauses Consolidation Act they were only required to fence in favour of the land occupied by the Great Northern Company, and were not required to fence against the whole world ; that they were only bound to maintain the fence as against the Great Northern Company. Chief Justice Jervis said — " I am of opinion the Company are entitled to the Judgment of the Court. It was not suggested the sheep were killed wilfully, or by negligent driving of engine. Although the owners of the close adjoining the railway would be entitled to maintain an action for an injury done to their cattle straying from their close, the Plaintiff would not be entitled to do so. The general rule of the law is — ' I am bound to take care that my beasts do not trespass on the land of my neigh- bour, and he is only l^ound to take care that his cattle do not wander from his land and trespass on mine.' Had the Plaintiff any right to have his sheep on the close adjoining the rail- way ? It is admitted they were there by a breach of duty of Plaintiff himself. The Company are liable for the non-repair of 1024 CATTLE CASES. the fences only as against the proprietors of the adjoining close. It seems to me the Eailway Act has very properly taken the rule of the law as to the measure of liability to be incurred by railway companies. It is said this decision may conflict with Faxvcett v. York and North Midland Railway CoTupany. But this is not so. Fawcett recovered, not on the common law, but on an Act of Parliament imposing upon the Company the duty of closing the gates under all circumstances. ^\T.ien the act is that of a servant in performing his duty to his master, the rule of law we consider to be that case is the only remedy against the master, and then only is maintainable when the act is negligent or improper ; and this rule aj^plies to all cases where the carriage or cattle of a master is placed in the care and under the management of a servant, a rational agent. The agent's direct act or trespass is not the direct act of the master. Each blow of the whip, whether skilful and careful or not, is not the blow of the master; it is the voluntary act of the servant. Nor can it, we think, be reasonably said that all the acts done in the skilful and careful conduct of the carriage are those of the miaster, for which he is responsible in an action for trespass to the same extent as if he had given them himself, because he has impliedly ordered them, and those that were careless and unskilful were not, for he has given no order except to use skill and care." Justices Cresswell, Williams, and Talfourd concurred. — Tried in Court of Co7)imon Pleas, April 28, 1852. — Law Journal Reports, vol. 21, pjage 201. 713. Manchester Sheffield and Lincolnshire Raikvay Company v. Wallis. — Action for £35, value of two horses killed on the line at Torksey Station. The horses were in a close near the station, and through the close two public roads passed. At each end of the close were gates across the road. It is supposed some person using the road left the gate open. The horses, however, strayed on to the public highway, and coming to the station gate, which was propped open, although closing with a spring, the horses strayed into the station yard. A porter, about 6 p.m., turned them out ; but some time after- wards they strayed in again, and when the gate was closed for the night they were accidentally fastened in. They got on to the CATTLE CASES. 1025 line, and were killed by a goods train. The case was first tried at the Leicester County Court, and a verdict given by the Jury for Plaintiff for £35. The Company appealed, and on the appeal case Chief Justice Jervis gave Judgment. He said — " We must assume the cattle, without any fault of Plaintiff's, strayed on to the public highway. Whilst cattle are passing along a highway the owners of such cattle are using it accord- ing to the dedication of the owner of the soil, and, being there with his consent, the cattle owners are strictly (legally) occu- pying the highway. If cattle thus, whilst passing along a highway, stray into an adjoining field, the owner of that field cannot distrain them for damage if he was bound to keep up the fence against the road. We are of opinion the Plaintiff was not occupying (legally) the road with his cattle which strayed on the road, and therefore there was no obligation upon the Company to maintain a fence against them." Judg- ment for Company. — Tried in Court of Conimon Pleas, Jan. 23, 1854. — From Laiu Journal Reports, vol. 23, page 85. 71 4t Ellis V. London and South Western Raihuay Com- pany. — Action for cattle killed by straying on to the line through an occupation gate. The- railway cuts through Plaintiff's land, and the Company provided an accommodation way crossing the railway on a level. The way was closed on the two sides by gates, with padlock and key. The key had been given to Plaintiff, but had been lost, and one of the gates was fastened by a piece of stick in the mortice. It did not appear, when Plaintiff's boy had driven the cattle home on the evening in question, whether he had fastened the gate or not. That evening the cattle strayed on the line and were killed, and the engine was thrown off the line and considerable damage done. Plaintiff contended there was an old footway across the field and over the railway. The Judge considered this did not affect the question. The Judge left it to the Jury whether the accident arose through any negligence of the Company, or partly by reason of neglect on the part of the Plaintiff. The Jury found for the Company. This trial took place at the Hertfordshire Lent Assizes, before Justice Cresswell. 65 1026 CATTLE CASES. Plaintiff appealed. The 75th section of the statute (8 & 9 Vic, cap. 20) requires, under a penalty — " That any person shall shut and fasten any gate set np at either side of the railway for the accommodation of the owners or occupiers of the adjoining lands, as soon as he or the cattle under his care shall have passed through the same." The Company, on the new trial, contended it was the Plaintiff's fault that the cattle were able to get out of the field and stray, and the Company were not liable for the con- sequences. The case of Fawcett v. York and North Midland was on a statute (5 & 6 Vic, cap. 55, sec 9) now repealed, and which imposed on the Company the duty of keeping the gates closed. Chief Baron Pollock said he considered the Judge's direction was correct, and it was right to put to the Jury whether Plaintiff, by negligence of his own, had contributed to the accident. Foot passengers would have no right ' to break down or break open a gate erected under an Act of Parliament. Barons Martin, Bramwell, and Watson concurred. Judgment for Company. — Tried in the Court of Exchequer, November 28, 1857. — From Laiu Journal Reports, vol. 26, page 349. 715. Roberts v. Great Western Raihvay Company. — Action for the value of a bull that, after having been unloaded from a waggon, strayed and was killed on the line. In going from the unloading bank cattle had to pass through a yard on to the highway. While the bull was lawfully in the said yard on his way from the station (unloading place) to the common highway, he strayed from the yard into and upon the railway. Plaintiff contended the Company were bound to maintain good and sufficient fences between the railway and the yard. Justice Crowder said — " This declaration is insufficient. It is alleged that the Company are the owners and occupiers of a railway and yard, through which cattle going by the railway are used to pass in going from the railway to the highway ; and there is a further averment that the Company, by reason of the premises, ought to have made and maintained good and suffi- cient fences. I see no ground at all for holding the Company liable, for there has been no argument — no reference to any case — to show that there was any legal liability to maintain a good and sufficient fence between the railway and the yard. CATTLE CASES. 1U27 This is a case of not taking proper means to prevent the cattle from straying, and if there were such a duty, an action would lie. But the declaration rests on this — that the Defendants were bound to maintain fences, and they clearly were not ; and as the loss is said to arise from that want of fences, the Com- pany are not liable." Justice Willes — " I am of the same opinion. It is quite consistent with this declaration that the animal was allowed to remain in the yard till it suited the owner to take it on, and that it was not in the charge of the Company at all. It may be a question whether, in respect of carrying on a dangerous trade, the Company would be liable ; but I say nothing as to that, the declaration being consistent with a state of facts on which no action could be possibly maintained." Judgment for Company. — Tried at Court of Comonon Pleas, June 25, 1858. — Laiv Journal Reports, vol. 27, jpage 266, G.P. 716. Fennell V. Waterford and Limerick Railway Com- joany. — Action for £98 for eight bullocks that strayed on line through a private gate and were killed. Plaintiff rented land from Mr. Harvey. Mr. Harvey's servant boy had driven an ass and cart through the gate and over the railway. He unlocked the gate, but did not re-lock it. When he returned in an hour, he found the cattle killed. Plaintiff pleaded the gate was out of order — that the bolt shot into a loose socket, and that, upon striking it a good many times, the bolt kicked back and the gate opened, and by reason of this defect the cattle were killed. Company pleaded there was no evidence as to how the gate got open ; that the gate was not defective ; that, if it were, there was no evidence such defect caused the bullocks to get on line ; that it was probable some person using the path during the hour the boy was away opened and neglected to close the gate. The Chief Baron non-suited Plaintiff, giving leave for appeal. — Tried before Chief Baron, Clonniel Spring Assizes, 1874. Plaintiff appealed to Court of Exchequer, Dublin, 13th November, 1874, before a full Court. Judgment for Company, on the ground that there was no evidence to connect the cattle being on the line with any defect in the gate, and it was just as probable a passer-by opened and omitted to shut it. — From Irish Clearing House Reports, No. 65, j^cige 131. 1028 CATTLE CASES. 717. Sneesby v. Lancashire and Yorkshire Raihvay Company. — Action for value of seven cattle (£153 13s.) that escaped from the control of their drovers at a level crossing. 29 fat beasts for Wakefield market were being driven over a level crossing near Wakefield at 11 p.m. Near the crossing were several sidings, and while the cattle were passing over the crossing a number of trucks were negligently shunted so as to frighten the cattle and cause seven of them to escape from the control of the drovers. It appeared the seven cattle got into a garden and orchard in the occupation of a tenant of the Company. The garden adjoined a branch line of the Com- pany, and the garden fence was not sufficient to keep the cattle from getting on to the line, where they were killed. The case was first tried at the Leeds Spring Assizes, 1873, before Chief Justice Bovill, who directed a non-suit, with leave for Plaintiff to move to enter a verdict for the amount, the Court to draw inferences of fact. On the appeal case Justice Blackburn said — " I am of opinion the Company are liable. The well-known rule as to the liability for damage is Causa joroxinia non remota spedahcr, and Lord Bacon says — ' It were infinite for the law to consider the causes of action and their impulsions one of another, there- fore it contenteth itself with the immediate cause, and judgeth of facts by that, without looking to any further degree ' {Bac. Max. Reg., 1 ). I think it clear that when the cattle got off and escaped from the control, without the fault of the Plaintiff, that whatever reasonably resulted from their being unprotected was the causa proxima of the escape. I think the accident which subsequently befell them was the natural result of their being deprived of control, and the Company must be held to be responsible." Justices Quain and Archibald concurred. Judg- ment against Company. — Tried in Court of Queen^s Bench, February 3, 1874. — From Law Journal RepjoHs, vol. 43, page 69. CATTLE CASES. 1029 Cattle Cases — Miscellaijeous. Case No. Slim Y. Great Northern (1854:) 718 What constitutes delivery of cattle to carrier. Malcolmson r. Irish South Eastern (1859) ... 719 Cattle sick with infections disease— Carrier can refuse to carry. Willis r. Great Western (1865) 720 Delay to cattle — Plaintiff was allowed to state a conversation he had a week after the delay with the Company's serv'ant, who admitted he forgot to send the cattle on— Held, the Company's servant has no implied authority to hind the Company by such admission. Prenti/ Y. 3IicUand (1866) 721 Company held not to have a lien on an entire consignment of pigs for an undercharge due upon three pigs over half the waggon- load. MalpasY. London and South Western {18Q6) 722 Goods clerk quoting through charge for cattle, Guildford to King's Cross, it was held that the Company accepted an additional contract, Nine Elms to King's Cross, although the consignment note was only made to Nine Elms, the Company's terminus. Shepherd Y. Bristol and Exeter (1868) 723 After cattle had been penned in Company's pen, two died — Company held not liable. Cox Y. Great Eastern (18Q9) 724 A railway company has no power to make a charge of Is. per truck for cleaning or whitewashing waggons. M'Court Y. London and North Western (1869) 725 Action against an intermediate company who did not make the contract with sender. Allen Y. Lancashire and Yorkshire (1870) ... ... ... 726 Cow exchanged on journey. Uradi/ V. Citi/ of Dublin Steam Packet Company (1871) ... 727 Pig lost — Plaintiff in charge. Gill Y.Manchester Sheffield and Lincolnshire (181^) 728 Cow escaped off cattle platform on to line after unl lading, and was killed — Company held liable. Shaw Y. Great Southern and Western (1881) ... 729 Pigs injured by whitewash which came off the sides of the cattle pens at Maryborough Station. 1030 CATTLE CASES. 718. Sli7n V. Great Northern Railivay Goni'pany. — Action for the loss of six pigs at Hitchin Station. Plaintiff had delivered and trucked 203 pigs ; he then bought six more pigs in the town, and sent them to the station by another dealer named Lewis, who was taking some of his own pigs to the station. Lewis was to give the pigs to the cattle porter, Morgan ; he told Morgan about them, and Morgan said he would put them with Plaintiff's other pigs. The pigs, however, were lost. The course of business was — On delivery of the pigs a loading note was made out by the Company's porter, countersigned by the sender, and then the sender took this note into the office, and, on paying the carriage, exchanged it for a cattle ticket, which ticket was an order for delivery of the pigs at the point of destination. The case was first tried at the London Sittings, Trinity Term, before Justice Williams, who left it to the Jury to say whether Morgan had received the pigs. The Jury found he had, and a verdict was given for Plaintiff. The Company appealed, and on the appeal case Chief Justice Jervis said — " I am of opinion the Plaintiff cannot recover. In the usual course of business he received, on the delivery of the 203 pigs, a paper which gave him notice that the Company would not be responsible unless the pigs were signed for as received by their clerks or agents. In this state of things he ient these pigs to the station by Lewis, who did not profess to be a servant of his, with whom Morgan might enter into a contract other than the usual one." Justice Maule said — "Morgan tells Lewis to take care of his own pigs, and he (Morgan) will take care of the others, meaning that he would take care of them if the Plaintiff, or somebody else for him, should do what was requisite, according to the ordinary course, when the Company would be responsible for the pigs. I do not think that what Morgan said or did amounted to making a contract, or that he took upon himself to make any such contract." Justice Cresswell — " I am of the same opinion, both on the ground that there was no evidence of any authority to Morgan to bind the Company without the usual documents, and also that it did not apppear that he held himself out as having such authority." Justice Crowder — " It appears to me the Plaintiff must have known that Morgan had no power to CATTLE CASES. 1031 bind the Company on any but the usual terms." Judgment for Company. — Tried in Court of Common Pleas, June 10, 1854. — From Law Journal Reports, vol. 23, page 166. T^l 9 1 Malcolmson v. Irish South Eastern Railway Company. — Action in respect to a cow which Plaintiff's man admitted had the murrain. The cow lay down in the truck and groaned in great agony. The agent refused to convey the cow from Eagnalstown to Dublin. A decree for 40s. was obtained, with liberty of the Judge at Assizes to increase or decrease damages. Chief Justice Monaghan held that a company may refuse to carry distempered cattle, or cattle ill of any infectious disease ; that a company is not bound to carry sick cattle unless owner pays for an entire truck ; that a sender can mix sick and sound cattle in one truck if he likes, but a company ought not to put a sick beast into a truck with other cattle. Such regulations would be reasonable under Cardwell's Act. His Lordship affirmed the decree, as there was an available truck by which the cow could have been conveyed without injury to other cattle. — Tried before Chief Justice Monaghan, Carloiu Spring Assizes, 1859. — Frovi Irish Clearing House Reports, No. 6, page 7. 720. Willis V. Great Western Railway Company. — Action for £21 7s. 6d. for delay to 7 cows, 35 sheep, and 6 pigs, Minety to Wolverhampton. The cattle were loaded at 5 p.m., July 12. Plaintiff had been sending cattle for six or seven years between the same stations, and contended they should leave at 7 p.m. and arrive in Wolverhampton about 7 a.m. next morning. He said there was a second train, which was due at Wolverhampton at 10.30 a.m. The cattle travelled by this train, but on this occasion it was late, and did not arrive till 12.50 2).m. ; consequently the cattle did not get into the market until about 1.30 p.m., when the market was over. No sale could be made, and the cattle were sent next day to Bir- mingham and sold there. Plaintiff informed the Company's clerk at Minety the cattle were intended for the next day's market at Wolverhampton. Plaintiff contended that the cattle, on arrival, were dirty and badly off for food, and were out of condition in consequence of the delay. Plaintiff, in evidence, said about a week after the cattle had been sent he asked the 1032 CATTLE CASES. Company's night inspector, East, at Didcot Junction, " How is it you did not send my cattle on ? " and the reply was that he had forgotten them. The Company objected to this evidence. The case was first tried in the Staffoi'dshire County Court. The Judge ruled that the special conditions of the Company relating to the non-liability of the Company for delay were unreasonable, and left the case to the Jur}^, who gave Plaintiff a verdict for £14 for loss of market and £7 7s. 6d. for injury to condition of the cattle. The Company appealed on the follow- ing points : — ( 1 ) Whether the Judge was right in admitting the evidence of the conversation with Inspector East ; (2) whether the Judge was right in refusing to non-suit the Plain- tiff, and whether he ought not to have ruled and directed that there was no evidence for the Jury ; (3) whether the Judge was right in his direction. By the Court — " There is no doubt that the night inspector had no authority to answer any inquiries, and our Judgment must therefore be for the Com- pany." — Tried in the Court of Common Pleas, May 5, 1865. — From Laiu Times Reports, vol. 12, page 349. (^Sec. 1, Taylor on Evidence, par. 539. — " The party's own admission, whenever made, may be given in evidence against him ; but the admission or declaration of his agent binds him only tvlien it is made during the continuance of the agency in regard to a transaction then pending et dumfervet opus." See also Langliorn v. Allmdt, 4 Taunt., 54; and Kohl v. Janson, 5 Taunt., 565.) 721. Prenty v. Midland Raihvay Company. — Action for £11 for detention of 44 pigs sent from England to Dublin. Plaintiff wished to load 40 pigs in one waggon and pay 2s. 3d. per head for the other four. The Company said he must take half a waggon for the four. He then took a waggon and a half, loading 26 pigs in one waggon and 18 pigs in the half waggon. The number limited for half a waggon was 15 pigs, so on arrival in Dublin Plaintiff was required to pay 2s. 3d. each for the three pigs over half a waggon. This he refused to do, and the 44 pigs were detained. On the first trial the Jury found for Plaintiff £11. The Company appealed, when Chief Baron CATTLE CASES. 1033 Pigott held that the Company were not warranted in with- holding delivery of the 44 pigs, and declined to express an opinion as to whether the Company might have had a lien upon the three pigs. Judgment against Company. — Tried in Court of Exchequer (Ireland), January 27, 1866. — From Laio Times Reports, vol. 15, jjage 24. 722. Malpas V. London and South Western Raihvay Company. — Action for £4. 17s. 6d. for damage to a heifer and five calves owing to detention, Gruildford to London. The cattle were loaded on the afternoon of Tuesday, 16th May, but did not reach King's Cross until 7 a.m. Thursday morning. The dispute arose as to whether the contract was to Nine Elms, the Company's London station, or to King's Cross, the North London Company's station. Sender swore he asked the clerk at Guildford what he was to pay for the carriage of the cattle to King's Cross, and he was told 14s., viz., 8s. to Nine Elms, and 6s. for the truck thence to the King's Cross cattle station, and that the cattle would arrive at the latter place about 4 a.m. next morning (Wednesday). The Plaintiff then offered to pay the fare at once, but the clerk said he had better pay at King's Cross. A printed form was then filled up by the clerk and signed by the Plaintiff, who, however, did not read it or have it read to him. The clerk denied this account, and said he told the Plaintiff he could only book to Nine Elms Station, as there would be no train for the cattle market at Kingr's Cross that day, but that he would, if the Plaintiff liked, insert on the consignment note his address at the cattle market. When the cattle reached the market on Thm-sday morning, Plaintiff paid the whole carriage, 14s., to the North London Comj^any. The consignment note stated — '' To be sent to Nine Elms Station. Consignee, Malpas, New Cattle Market." And Plaintiff signed under the notice — " Eeceived from Malpas, of the New Cattle Market, the undermentioned animals, on conditions stated below, and at the special reduced charges below the rates authorised by law." The conditions were — " The Company are not to be subject to any risk from consequences arising from overcarriagc, detention, or delay in or in relation to the conveying or delivering of the said animals, however caused. The Comi)auy are not bound 1031 CATTLE CASES. to send the animals by any particular train, or to carry or deliver them within any certain or definite time, or in time for any particular market." The case was first tried before Justice Smith, at Michaelmas Term, who left to the Jury the evidence as to whether there was an additional contract from Nine Elms to King's Cross implied by the conversation between the Plaintiff and the clerk. There was evidence that it was impossible to exclude, viz., evidence of the price agreed on, which was not in the memorandum (note), and the memorandum, therefore, did not contain all that passed. The Jury found a verdict for Plaintiff, £4 17s. 6d. A rule was obtained calling on the Plaintiff to show cause why the verdict should not be set aside and a new trial had on the ground that the consignment note signed by the Plaintiff was conclusive evidence of the contract. On the appeal case Chief Justice Erie said — " On the part of the Plaintiff the oral evidence was very distinct that there was a contract to carry to King's Cross for 14s. The Company produced a paper signed by Plaintiff where the place of delivery is stated as Nine Elms. Both sides agree the cattle were to pass from Gruildford to Nine Elms, and then partly on the railway of another company to King's Cross. It is not incon- sistent with the contract to carry to Nine Elms that there should be an additional one to carry from Nine Elms to King's Cross. A very material fact not contained in the written con- tract is that the price to be paid for the carriage (the whole distance) was 14s. ; but the price to Nine Elms would be only 8s., and the other 6s. would be for going on to King's Cross. The parol evidence in this case does not alter or contradict the written, but only establishes an additional contract. When the written contract is silent as to price, oral evidence may be admitted to show what it is, and, in my opinion, it showed in this case an additional contract." Justices Willes, Keating, and jNI. Smith concurred. Judgment against the Company. — Tried in Court of Common Pleas, January 12, 1866. — Frovi Law Times Reports, vol. 13, x^cfje 710. (This case strongly illustrates how careful goods clerks should be in their language, and that a signature to a consign- ment docket should never be taken unless the sender reads it over ; or, if unable to read, the clerk should read it aloud to him, and remark same on the note.) CATTLE CASES. 1035 723. Shepherd v. Bristol and Exeter Railway Company. — Action for £53 9s., consisting of £33 9s., value of two steers that died, and £20, being £1 per head on 20 cattle that were deteriorated by delay and lost their market. The train bringing the cattle to London was due to arrive at Paddington at 7 a.m. on Sunday morning, whereas it did not arrive until between 11 and 12 a.m. in the morning. Plaintiff met the cattle, but, being liable to a fine for driving cattle through the streets on a Sunday morning after 10 a.m., he was unable to drive the cattle to the Islington Cattle Market. The cattle were consequently penned at the station, and Plaintiff purchased and gave them hay. When Plaintiff's man went for the cattle, something after 12 p.m. on Sunday night, he found two steers dead, and the railway foreman would not deliver him the cattle unless he signed for the two dead ones as part of the whole number of 22. This the Plaintiff's man refused to do, and went for his master, when ultimately the 20 cattle were delivered, but owing to the delay they were not got to the market until 10 a.m. on Monday, when the market was over, and hence they were not sold until Thursday. The case was first heard before Justice Keating, at the Somersetshire Assizes, 1867, when the Jury gave Plaintiff a verdict for the full amount. Leave of appeal was given, the Court to have power to draw inferences of fact. On the appeal case Baron Blackburn said — "The Company contend that nothing more remained to be done by them under their contract of carriage as carriers when the alleged damage occurred. Had the Company anything more to do as carriers after 2 p.m. on the Sunday ? It seems to me clear they had not. I think the argument of the Attorney-General irresistible. The cattle arrived and were taken out of tlie trucks safely. The Plaintiff's servant was there, and, had it not been Sunday, would at once have driven tliem away. He was permitted to put them into a pen, where he fed them and shut them up. Had there been pens belonging to A. B. communicating with the station yard, the cattle might have gone there. What difference is there that the pens l)elong to the Ivailway Comjmny, and that no charge was made ? " Baron Channell concurred. Baron Martin dissented. Judgment of Court for Company. — 1036 CATTLE CASES. Tried in Court of Exchequer, February 7 and May 5, 1868. — From Laiu Journal Reports, vol. 37, page 113. 724. Cox V. Great Eastern Raihvay Company. — Claim for £20 for conversion of a cow sold by Company to realise Is., cost of disinfecting the cattle waggon used for carrying the cow. The Plaintiff obtained a verdict in the Ipswich County Court, and the Company then appealed to the Court of Com- mon Pleas, Westminster, to set aside the verdict. The cow was carried on the 18th November, 1867, Diss to Ipswich, and on arrival Plaintiff tendered 5s. 8d. carriage, but refused to pay the Is. The Company sold the cow, deducted the Is. and carriage, and tendered Plaintiff the balance. The Company contended that by their private Act, 25 & 26 Vic, cap. 23, sec. 230, they had power to charge for particular services, and that this was a charge within their Act which they had a right to make, and, not being j^aid it, they had a right to sell. The Judges, without hearing Plaintiff's counsel, were clearly of opinion, without going into the provisions of the Company's private Act, that the charge made was not one the Company could make, the service not being one for the benefit of the Plaintiff in particular, the Orders in Council for cleansing being to prevent the spread of the cattle plague. The service of cleansing done was not a service done to the Plaintiff indi- vidually as contradistinguished from the rest of the public. Verdict for Cox. — Tried in Common Pleas, before Justices Keating, Smith, and Brett, February 12, 1869. — From Law Journal Reports, vol. 38, page 151, C.P. ; Laiu Reports, vol. 4, page 183, C.P. 725. M'-Court V. London and North Western Railway Company. — Action for loss of two cattle that died on the voyage between Dublin and Liverpool, en route for Leicester. The Plaintiff went to the office of the City of Dublin Company and told Mr. Harden, the superintendent, that he wanted to send 31 bullocks to Leicester by the London and North Western Railway Company. Mr. Harden's reply was — "All right ; you are in time for the last boat." The Plaintiff brought the cattle to the boat, but got no ticket and paid no CATTLE CASES. 1037 money. A drover's ticket for a herd who accompanied the cattle was issued, headed " City of Dublin Steam Packet Com- pany." It did not in any way refer to the cattle, beyond that it contained a printed notice on the back disclaiming all liability for any injury received by cattle on the passage. On arrival of the cattle at Liverpool the London and North Western Company's porter took possession of the 29 cattle, drove them to the Company's station, and forwarded them by train to Leicester. The Plaintiff then received a document described on the face of it as an " Advice Way-bill," and he then paid to the London and North Western Company the carriage of the 29 cattle through from Dublin to Leicester. The case was first tried in the Comt of Queen's Bench, when it was held that there was evidence of contract between the Plaintiff and the London and North Western Company. On the appeal case Chief Baron Pigott said — " No evidence was given of the particular arrangements on the subject between the two Companies. How is it unreasonable that the arrange- ment should be that the Company which received the fare and issued the ticket should be the contracting party, and is not this view of the case strongly corroborated by the fact that no j)art of the fare was paid in Dublin ? The entire fare was paid to the Defendants at their oifice in Liverpool, and they in return issued what is in the nature of a ticket to the person accompanying the cattle, not for the journey, Liverpool to Leicester, but from Dublin to Leicester. It has been said that the way-bill or ticket issued in Liverpool is only for 29 cattle, and therefore this contract was only to carry 29. But then they issued the ticket and received the fare for the entire journey from Dublin to Leicester. It must be treated as one entire contract to carry for one entire journey from Dublin to Leicester. On the whole, therefore, without going so far as to say that the evidence was conclusive, we are of opinion that it was sufficient to justify the Jury in coming to the conclusion that the Defendants were the parties with whom the contract was made, and that it was one entire contract to carry all the cattle from Dublin to Leicester." Baron Fitzgerald, in a long Judgment, dissented from the majority of the Court, and said — " I am of opinion that there 1038 CATTLE CASES. was no evidence that Harden had authority from the London and North Western Company to make the through contract. I need hardly say that the fact that Harden was the known agent of the City of Dublin Steam Packet Company as carriers, though coupled with this possibility, was no evidence that in making the contract he was in fact agent for the Defendants. I cannot but think that the fact that Harden was the known agent of the City of Dublin Steam Packet Company as carriers was some evidence that the contract made by Harden was a contract made on behalf of the City of Dublin Steam Packet Company." The Judgment of the majority of the Court being in favour of the Plaintiff, the Judgment of the Court below was affirmed against the London and North Western' Railway Company. — Tried in the Court of Exchequer Chamber {Ireland), May 25 and June 5, 1869. — From Irish Beports, Common Law Series, vol. 3, page 462. 72 6 • -^ll&n v. Lancashire and Yorkshire Railway Com- pany. — Action for £16 10s. for a cow lost, or rather exchanged, the cow tendered being of less value and afterwards sold by Company for £7 7s. 9d. The cow was one of sixteen booked Dublin to Manchester. The case was first tried by Recorder of Dublin, 2lst Apjril, 1870, who gave a £15 verdict for Plaintiff. The Company to that action pleaded the dealers marked their cattle in a certain way and kept the knowledge of these marks to themselves, and the Company could not identify each man's cattle. Appeal tried before Baron Hughes, Nisi Prius Court, Dublin, llth May, 1870. Company pleaded that Plaintiff had a free pass to travel with cattle " solely with the intention of taking care of the animals," but he did not travel by the same steamer as the cattle, and did not attend on the quay at Liverpool until steamer had discharged part of the cattle. The Judge ruled that Plaintiff, having accepted the " pass," was bound to travel with and take care of the cattle, and reversed the decision of the Court below. — From Irish Clearing House Reports, No. 50, page 92. 727, Brady v. City of Dublin Steam Packet Company. — Action for £4 8s. 9d. for one pig out of fifteen being deficient, CATTLE CASES. 1039 Dublin to Liverpool. Plaintiff accepted a free pass on con- dition that it was given " to owners of live stock or their men, solely with the intention of their taking care of the animals." This notice was exhibited over booking-office and on sailing bills. Plaintiff was present on landing of pigs at Liverpool, the cargo-load being driven to Company's yard. Plaintiff accompanying. After selection of each dealer's stock Plaintiff alleged he was a pig short. The Eecorder dismissed case on its merits, it being the duty of Plaintiff to look after his property. — Tried before Recorder of Dublin, July 2\^ 1871.— From Irish Clearing House Reports, No. 58, page 107. 728. Gill V. Manchester Sheffield and Lincolnshire Rail- way Conipjany. — Action for £15 for a cow which, after unload- ing, got off the cattle platform and on to the line, and was run over and killed — Doncaster to Sheffield. On arrival of the train at Sheffield about twenty minutes to seven in the evening, Plaintiff and his man were on the cattle platform to receive the cow. The foreman porter, on the cow being claimed, asked if Plaintiff had signed, and finding he had not. Plaintiff was sent into the office. Plaintiff said, " Don't let her out until I get back." The Plaintiff came back, and the porter was just un- fastening the truck. Plaintiff said, " Don't let that cow out ; if you do, she will go slap at you." The porter turned and laughed, and said, " She will be right when she gets out." The porter said, " Close the gate ; " whereupon Plaintiff said, " I shall go outside," and did so. The porter then drew the bolt ; the cow rushed out, and ran about the platform in a wild state. She ran into a pig pen at the end of the cattle platform, and jumped over rails of the pig pen on to the line, and ran into the tunnel and was killed. The Company relied upon the notice on the cattle ticket as to restive cattle to relieve them from liability. Sheffield being worked as a joint station by Manchester Sheffield and Lincolnshire and Great Northern Companies created a difficulty, as the contract was made with and the risk note signed by the Great Northern Company. Plaintiff sued the Manchester Sheffield and Lincolnshire Company, their servants doing the work at Sheffield, and being, he contended, guilty of negligence. The Court of Queen's Bench, on second trial, held 1040 CATTLE CASES. that, owing to an agreement of l7th June, 1875, between the two Companies, the Grreat Northern Company acted as agents, in making the contract, for the Manchester Sheffield and Lin- colnshire Company. The case was first tried before Baron Cleasby, at the Leeds Summer Assizes, when he non-suited Plaintiff on the contract feature of the case. Plaintiff ap- pealed, when Justices Lush and Blackburn held that the mischief was attributable to the porter, who, against Plaintiff's advice, let out the cow before she had been quieted. " We are therefore of opinion the non-suit was wrong, and that the verdict ought to be entered for Plaintiff for £15." Justice ]Mellor dissented from this Judgment. Judgment against Company. — Tried in the Court of Queeti's Bench, February 17, 1873. — From Laiv Journal Reports, vol. 42, page 89. 729. Shaw V. Great Southern and Western Railway. — Action for damage to pigs, arising at Maryborough Station, delivered there to be carried to Limerick. It appeared that the pigs, before being loaded, were for some time put in pens at Maryborough, which pens, in accordance with the Order in Council, had been disinfected by the apj^lication of a prepara- tion of lime and chloride of lime, and that the pigs, coming in contact with this preparation, were injured and deteriorated in value. On the first trial, in the Court of Exchequer, the Judgment was against the Company. The Company then carried the case to the Court of Appeal, when the Master of the Rolls (O'Sullivan) said — " The defence by the Company admits that the pens in which the pigs were placed were improper pens for their reception. There is no averment that the appli- cation of lime-wash was put on the pens at a proper time before the pigs were received, nor even that it was allowed to dry ; and it is quite in accord with the defence that the pigs were placed in the pens while the application of the lime-wash was actually wet. The sender of the pigs is not stated to have had any knowledge of such a state of things. He finds his pigs injured by the lime-wash. Although the Company is bound to treat the pen as directed by the Order in Council, it is manifest that want of due care and precaution in the reception of the animals into it may, by taking them into it too soon, CATTLE CASES. 1041 exist. Where the defence, I think, radically fails is that it shows no necessary connection between compliance with the Order in Council and the pens being injurious at the moment of reception, which may be the entire cause of the injury. It is the unanimous opinion of the Court that the Judgment of the Exchequer Division was correct." Judg- ment against the Company. — Tried in the Court of Appeal, January 26 and 28, 1881. — From Laiv Reports (Ireland), vol. 8, page 10. 66 1042 HORSE CASES. Horses Delayed and Injured. Case No Anderson v. Chester and IlohjJiead (1853) ... ... ... 730 Horses missed Shrewsbury Fair — Special contract to carry in time for fair proved — Company held liable. Bollands v. Manchester Sheffield and Lincolnshire (1868) ... 731 Horses delayed. Eohinson v. Great Western (1866) ... ... ... ... 732 Horses carried in trucks delayed 24 hours — Special contract did not exempt Company from liability. Waller v. Midland Great Western (1879) 733 Failure to supply horse-boxes, and the horses were walked 24 miles and injured — Company held not liable. Woody. Great Northern (of Ireland) (l^QO) 734 Held, that putting a horse to livery in the absence of it being claimed by consignee on arrival is tantamount to delivery to consignee. 7 30 . Anderson v. Chester and Holyhead Railway Com- 'pany. — Action for delay to horses, Dublin to Shrewsbury, whereby they missed the fair. Plaintiff and his witnesses swore that the Company's clerk, George Jones, made a special contract binding Defendants to have the horses in time for the 9 a.m. train, Holyhead to Chester, and so on to Shrewsbury in time for the fair. The second count averred unreasonable delay and negligence, and that there were not sufficient horse-boxes at Holyhead until 5 p.m. same day. Company denied their clerk made the special contract, and maintained, if he had done so, he had no authority to do so on behalf of Company ; that by the conditions at back of receipts the Com- pany were not to be held responsible for accidental or unavoid- able delay, and that they had used due diligence. The Chief Justice left it to the Jury to say whether a special contract had been made, and if so, what amount of damages. He decided, as a point of law, that Jones, placed in the position in Company's office, taking money from the public for carriage of HORSE CASES. 1043 goods and cattle, had inferentially authority to bind the Company by such a special contract. The Chief Justice said on the second count the Defendants had used due dihgence. The Jury found for Plaintiff on first count £250 damages, and for Defendants on second count. The Company objected to the Judge's charge — (1) That the question should not have been left to the Jury, that he should have directed them that the conditions on the back of the receipt note did form part of the contract ; (2) that the extent of Jones's authority to make the contract relied upon was a question for the Jury, and should not have been kept from them. Upon the subsequent trial of the bill of exceptions, the follovdng authorities were relied upon in support of first exception: — Foivles v. Great Western Raihvay (7 Exchequer Eeports, p. 699); Carr v. Lancashire and Yorkshire Raihvay (Exchequer Eeports, p. 707) ; Shaw v. York and North Mid- land Railway (13 Queen's Bench Eeports, p. 347); Austin v. Manchester and Sheffield Railway (16 Queen's Bench Eeports, p. 600) ; Walker v. York and North Midland Raihvay (3 Car. & Kir. Nisi Prius Cases, p. 279); The York Neivcastle and Berwick Railway Company, Appellants, Crisp and Thompson, Respondents (23 Law Times Eeports, p. 79). The Court held the Lord Chief Justice was right in leaving the question to the Jury as to whether the conditions on back of receipt note formed part of the contract or not. With regard to the second exception the following cases were relied upon : — Alexander v. Mackenzie (6 C.B., p. 766), and Giles v. Taff Raihvay (2 Ellis and Black's Queen's Bench Eeports, p. 822). The Court also held that the Chief Justice was right, and that they were very much influenced in this view by the course pursued by Lord Chief Justice Jervis in Wilson V. York and Neivcastle Railway Company (17 Law Times, C.P., 223). Judgment against Company. — Tried before Lord Chief Justice, Common Pleas (Ireland), December 2 and 3, 1853. — Reported in Irish Common Laiv Reports, vol. 4, page 435. 7 31 . Bollands v. Manchester Sheffield and Lincolnshire Raihvay Company. — Action for damage to fifteen colts from 1044 HORSE CASES. delay. The damage was that several of them had capped hocks and colds. They were booked through from Dublin to Lincoln, via Liverpool. The detention took place at Eetford, where they arrived at 12.35 a.m., April 18 (Good Friday), and were taken on at 10.30 a.m. same morning by the next train going to Lincoln. It appeared that on some late previous occasion Plaintiff had had horses taken forward from Lincoln at 3 a.m., but the train that had then taken them forward had been discontinued, and the case turned upon the fact of whether Plaintiff should or should not have been advised of the discon- tinuance of that train. The colts were declared as under £10" in value, and were carried as a truck-load, like cattle. The case was first tried at Naas, during the Summer Assizes, 1862, when the Lord Chief Justice held that the Company were bound to give the public notice of the alteration of the goods train, and a verdict was given for Plaintiff. On the appeal case Chief Justice Lefroy said— "I think there should be a new trial, for the purpose of putting more distinctly to the Jury that it was the duty of the Plaintiff — to whom it was an important object that his horses should be delivered at Lincoln at a particular time — to have ascertained whether the Company would undertake, or whether their system of traffic continued to be such as would enable them to undertake, to deliver the horses at that particular time. The Company had changed their practice for a considerable time before, and therefore they may have imagined that the public had been apprised of the change. If there was any default it was on the part of the Plaintiff, and not of the Company, They were not in default, and if the necessities of their traffic made it necessary for them to change the system, they had a right to do so." Judgment for Company. — Tried in the Court of Queen's Bench (Ireland), January 19 and 20, 18G3.- From Irish Reports (Common Law), vol. 15, page 560. 732. Robinson v. Great Western Raihvay Company. — Action for £60 for 24 hours' delay to twelve horses at Wolver- hampton, sent from Shipton by goods train at the lower rate. Sender signed a way-bill containing the clause — " I hereby agree that the same (horses) are to be carried at the owners HORSE CASES. 1045 risk." The horses were intended for Manchester, but there was no through rate from Shipton. The Shipton station-master told sendier if the horses were sent by a certain time they would catch the London and North Western Company's goods express at Bushbury Junction. The ticket was made out Shipton to Wolverhampton, and Bushbury Junction is a mile beyond Wolverhampton Station; and the case turned upon whether the contract was to Wolverhampton or to Bushbury Junction. Plaintiff had a drover's pass, but travelled to Wolverhampton by passenger train ; and he called on the Wolverhampton station-master and told him the horses were coming on by goods train, and that official promised to have them forwarded on to Bushbury Junction in time for the London and North Western train. It was admitted on the trial that if the Defendants undertook to deliver at Bushbury Junction there was a delay of 24 hours, but if they only undertook to deliver a,t their ordinary station at Wolverhampton, and then someone was to fetch the horses and take them to Bushbury Junction, there was no delay. Jury found £60 damages, or £5 per horse, against Company. On the appeal case Chief Justice Erie said — " There was some evidence that the contract meant to Bushbury Junction, and that was left to the Jury. The condition of the special contract means that if anything happens to the horses going along the journey the Company are protected ; but, by their contract, they were to deliver in reasonable time. If a com- pany undertakes to carry in 24 hours at owner's risk, and a horse is damaged on the road, I think they are not liable for such damage, but that they would be liable for the conse- quences if not arriving in reasonable time." Judgment against Company. — Tried in Court of Common Pleas, Nov. 23, 186G. — From Weekly Reporter, vol. \4, page 206. 733. Waller v. Midland Great Western Railway.— Action for damage arising to a number of horses which were walked by road from Athboy Station to Dublin, a distance of 24 miles, through the Kail way Company having failed to provide horse-boxes, pm-suant to contract, for the conveyance of the horses for sale by auction in Dublin on the day but one 1046 HORSE CASES. following. The owner was compelled to send them by road, in order that they might arrive in due time for sale and for previous inspection by purchasers. The horses, which were valuable hunters, were in soft condition at the time. They were deteriorated in ajDpearance by the fatigue of the road journey. One of them was lame, and such as were sold realised prices below what would otherwise be obtained, the other one being left on the owner's hands. It appeared if they had been in hard-fed condition they would have borne the journey without injury. The Company's station-master was at the time of the contract aware of the intended sale, and of the day on which it was to take place. Held, reversing the decision of the Queen's Bench Division, with damages £200 — That the Company were not liable in damages for the entire of the loss which the owner sustained in consequence of the injuries occasioned to the horses by the road journey, but that the measure of damages was the deterioration which the horses, if in ordinary condition and fed to make the journey, would have suffered thereby, and the time and labour expended on the road. This was practically a Judgment in favour of the Company. — Tried in the Court of Appeal (Ireland), May 13, 14, and 16, 1879. — From Law Reports (Ireland), vol. 4, page 376. 734-. Wood v. Great Northern (of Ireland) Railway Company. — Action for £15, value of a horse not delivered, Belfast to Armagh. The horse duly arrived at Armagh, con- signed to D. Wood, and, no person being at the station to meet and accept delivery of the horse, it was sent to livery. A Mr. James Woods, hearing accidentally there was a horse at livery in his name, went to the livery stable keeper and got the horse. Mr. D. Wood subsequently on same day applied for the horse, and found it had been delivered to Mr. James Woods. The horse was subsequently taken to D. Wood's house and offered to him, but he refused it, and Mr. James Woods then returned it to the livery stable keeper, who, after giving notice, sold the horse at auction for its keep. The Judge decided in favour of the Kailway Company, hold- ing that their contract was to carry the horse to Armagh that HORSE CASES. 1047 Plaintiff should have been there waiting to receive it, or applied within reasonable time after the arrival of the train, and as he was not there the Company were justified and bound to put the horse to livery as they had done, and having done so they had completed their contract, and their liability ended ; and that afterwards the Company became the agents of the Plaintiff, and were clear of anything that might happen afterwards ; and that any cause of action for wrong dehvery from the livery stable to James Woods lay between the Plaintiff and the livery stable keeper. Judgment for Company. — Tried at the Quarter Sessions, Castlehlaney, SOth December, 1880. — From RepoH to Irish Clearing House, No. 87, page 177. (Although this is only a Quarter Sessions case, it establishes what would be a useful principle, and it is inserted in the expectation that a similar decision may be obtained in a higher Court.) HoKSEs Killed and Injured in Transit. {See also tinder ^'Special Contracts.") Case No, Palmer y. GrandJunction {1S39) 735 Companj, not able to prove a special contract, were held to have carried the horses as common carriers, not as special carriers. Shaw y. Yoj-k and North Midland (lS4:d) 736 Horse killed in horse-box from defective partition — Company held not liable under their printed notice on ticket. Austin v. Manchester Sheffield and Lincolnshire (1850) ... ... 737 Hot axle set wheel on fire — Truck broke down, and seven horses were injured — Company held not liable. Great Northern y. Morville {1S52) 738 Horse in horse-box injured by concussion in shunting — Com- pany held exempt from liability owing to special contract, M^Manus v. Lancashire and Yorkshire (1859) ... ... ... 739 Horses damaged by kicking hole in cattle truck — Company held liable in face of special contract. M'-Cancey. London and North Western {1QQ>\) 740 Horses declared at £10 value each — Company held not liable for a greater value per horse. Lloyd y. Waterford and Limerick (18G2) 741 Company offered two rates, owner's and Company's risk — I'lain- tiff accepted owner's rislv — The horses were injured — Held, that the alternative rate at Company's risk was unreasonable, and hence there was no special contract. 1048 HORSE CASES. Case No. Iloffaty. Great Westeim (18G7) 742 Company held liable for a mare strangled ia a horse-box, because one halter was longer than the second one. Kendall \. London and South Western {1812) ... ... ... 743 Horse damaged — No negligence or explainable cause — Held to be the inherent vice of the animal, and Company free from liability. Moore \. Great Northern {Ireland) {1882) 744 Horse injured on unloading platform after being unloaded. 735. Pcdnner v. Grand Junction RaUivay Company. — Action for £150 for one horse killed and eight more or less injured, owing to an accident near Birmingham. The horses were being carried, Liverpool to Birmingham, in 1838, in three horse-boxes, " being a kind of caravan constructed for the pur- pose on four wheels, and adapted to the railway." A ticket was issued as follows : — " Ticket fvi- Horses and Carriages. — From Liverpool to Birmingham, 4^ o'clock train, February 3, 1838 — Palmer, nine horses to Birmingham — Carriage £10 10s.— Paid, E. C. "This ticket is issued suhject to the owners undertaking all risks of con- veyance whatsoever, as the Company will not be responsible for any injury or damage (however caused) occurring to horses or carriages travelling upon the Grand Junctiou Line." It appeared some labourers in the employ of the Company had been working at a culvert or drain, and had taken down some part of the fence, and a horse strayed on to the line and had lain down upon the railway. This obstruction had thrown the train off the line and caused the injury. The case was first tried before Chief Justice Tindal, at Warwick, when the Jury found gross negligence in the Company, and that no ticket had been given consignee, and a verdict for £150. The Company appealed, when Baron Parke said — "The Company's Act does not compel them to be common carriers — it only enables them to be so, so far as they shall think fit ; and when they have elected to become so, they are liable in that character in the same way that other common carriers are. If the Company choose to carry, and do not take care to accept the goods with a limited responsibility — of which we are to assume there is no evidence in the present case — then the HORSE CASES. 1049 question is whether the common law duty is not cast upon them ; and I am of opinion that it is, and that, having received these horses to carry them from Liverpool to Birmingham and safely deliver them, which they have not done, they are liable." Barons Alderson and Gfurney concurred. Judgment against Company. — Tried in Court of Exchequer^ Vacation Sittings after Hilary Term, 1839. — From Meeson and Welsby's Reports, vol. 4, page 749. 736. Shaiu v. York and North Midland Railway Com- pany. — Action for £183 15s. for a horse that had fallen in a horse-box and killed himself, owing to a defective partition having become loose, York to Watford. The Plaintiff sent nine young horses. Plaintiff, when loading the horses, objected to one horse-box, as a screw was loose and a partition between the stalls was insecure, whereupon one of the Company's servants endeavoured to remedy the defect, and assured the Plaintiff that the box was quite safe. After loading. Plaintiff paid the carriage and received a ticket containing the following printed notice at bottom : — " N.B. — This ticket is issned subject to the owner's undertaking all risks of conveyance whatsoever, as the Company will not he responsible for any injury or damage (however caused) occurring to horses or carriages while travelling, or in loading or unloading." On arrival at Normanton, owing to the partition having become loose again, the horse had fallen and killed himself. The case was first tried at the York Spring Assizes, 1848, before Baron Alderson, when the Jury gave a verdict to Plaintiff for the £183 15s. The Company obtained a rule calling upon Plain- tiff to show cause why there should not be a new trial on the ground of misdirection. Chief Justice Lord Uenman, in giving Judgment, said — " It a])pears to us to be clear that the terms contained in the ticket given to Plaintiff form part of the contract for the carriage of the horses, and that tlie allega- tion in the declaration that the Company received the horses to be safely and securely carried by them — which would throw the risks of conveyance upon the Company — is disproved by the notice at the foot of the ticket ; and the alleged duty of the Company safely and securely to carry and convey the horses 1050 HORSE CASES. would not arise uj^on such a contract. It may be that, not- withstanding the terms of the contract, the Plaintiff might have alleged that it was the duty of the Company to have furnished proper and sufficient carriages, and that the loss happened from a breach of that duty ; but the Plaintiff has not so declared, but has alleged a duty which does not arise upon the contract as it appeared in evidence." Judgment for Com- pany. — Tried in Court of Queen's Bench, Feb. 24, 1849. — From Law Journal Reports, vol. 18, page 181. 737. Austin Y. Manchester Sheffield and Lincolnshire Raihvay Company. — Action for damages to seven horses carried in a cattle truck, New Holland to London. Owing to a hot axle the truck was thrown out of position, and the injury arose. During stoppage at a station the Plaintiff requested that the horses should be taken out; this was not done, and on the journey being resumed the axle again became hot and on fire, and the accident occurred. The Company pleaded a special contract and notice at the back of the cattle ticket, as follows : — "This ticket is issued subject to the owners undertaking to bear all risk of injury by conveyance and other contingencies, and the owner is required to see to the efficiency of the carriage before he allows his horses or live stock to be placed therein, the charge being for the use of the railway carriages and locomotive power only. The Company will not be refponsible for any alleged defects in their carriages or trucks unless complaint be made at the time of booking or before the same leave the station ; nor for any damages, however caused, to horses, cattle, or live stock of any description travelling upon their railway or in their vehicles. I have examined the carriages, and am satisfied ■with their sufficiency and safety. (Signed) Davis, for Austin, owner or on behalf of owner." The rate for the consignment of the three waggon-load of horses was £22 10s., which the Comj)any proved was a reduced rate, and that in horse-boxes the charge would have been £50. The Jury found that the accident was occasioned by the fire, and that there was negligence on the part of the Company in pro- ceeding from the station with the truck when Plaintiff re- quested the cattle should be taken out. Verdict for Plaintiff. Justice Erie gave leave to move for a new trial. — Tried at the London Sittings after Hilary Term, 1850. HOKSE CASES. 1051 The new trial came on in the Queen' 8 Bench in 1851, before Judges Patteson, Coleridge, Wightman, and Erie. Judge Patteson held that there had been a special contract, although Plaintiff disputed it. " The gist of the complaint is not simply breach of the ordinary duty of a common carrier, nor of that arising on the special contract, but negligence in persisting to go on with the insufficient truck after notice and request. But I cannot agree to this. The breach must arise by virtue of contract or duty. There might be misconduct without refer- ence either to the contract or the duty, but a complaint for that should be framed in a different way. The breach is made to arise upon the duty of the carrier as a common carrier. The ticket is more than a mere notice ; it is a special contract which Defendants made in consequence of the charge being lowered." The other Judges agreed. Judgment for Company. — 16 Queen's Bench Reports, page 600; Laiv Journal, vol. 20, pjage 335. 738. Great NoHhern Railivay Company v. Morville. — Action for £27 for a horse injured in a horse-box during shunt- ing of the train, Kirkstead to Wakefield. On August 14, 1851, Plaintiff delivered the horse, and it was safely placed and tied up in the horse-box. Plaintiff then went into the office, paid the carriage (19s. 6d.), and signed the usual risk note, getting a duplicate thereof. In the note he signed was the following sentence, which was not in the duplicate : — " I have examined the carriages, and am satisfied with their efficiency and safety." The case did not, however, turn on this point. On arrival at Knottingley the horse-box had to be shunted on to another train, and in so doing a concussion took place between the horse-box and another vehicle, to which the injury was attri- buted. Plaintiff contended that the ticket was a mere notice or restriction of the common law liability of the Company, and such as was void under the 4th section of 11 Geo. IV. and 1 Will. IV., cap. 68. The Company contended the ticket formed a special contract whereby they were relieved of any common law liability of a carrier. The case was first tried in the Pontefract County Court, when the Judge, after considera- tion, gave Plaintiff a verdict for £'21 on the ground that the injury was the result of the want of due care in shunting the 1052 HORSE CASES. horse-box at Knottingley. An appeal was taken to the Queen's Bench, when Judge Coleridge gave Judgment, saying — " I am of opinion the Judgment must be for the Company, and that the verdict below was wrong. This case, I think, falls within section 6 of the Act, where the carrier is permitted to make a special contract. 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. It is clear that he did agree to them here ; the Company conse- quently is protected in this action." Justice Erie said — " It is perfectly clear that the Company undertook to carry the horse upon the terms that they were not to be responsible for damages that might happen to it. The consideration for the Plaintiff assenting to the agreement was the carriage of the horse by the Company on the payment of the fare. Whether the Plaintiff had signed the paper or whether the clerk had mentioned what the terms were, there would have been in each case good evidence of an agreement between the parties. The 4th section of the Carriers' Act provides that public notices shall no longer be of avail. It used to be a constant question whether knowledge of a public notice was brought home to the party sending the things to be carried, to prevent which question it was provided in the Act that ' public ' notices shall be no longer of any avail. But that section does not affect section 6, by which every carrier is left free to make a special agreement with the party sending goods. Assuming the De- fendants to be common carriers in the widest possible sense, I think that this is a special contract under section 6, and that the Defendants are protected by it." Judgment for Company. — Tried in Court of Queen's Bench, May 10, 1852. — From Law Journal Rejports, vol. 21, -page 319. 739. M'Manus v. Lancashire and Yorkshire Railway Company. — Action for damages to three horses, from a hole being made in bottom of cattle truck during transit, Liver- pool to York. The truck externally, and as far as Company knew, was fit. Plaintiff signed Company's risk note, as follows : — " This ticket is issued subject to owners undertaking all risks of conveyance, HORSE CASES. 1053 loading and unloading whatsoever, as the Company will not be responsible for any injury or damage (howsoever caused) occurring to live stock of any descrip- tion travelling on the Lancashire and Yorkshire Kailway or in their vehicles." Twopence per mile was eliarged, while conveyance in horse- boxes on passenger trains was fourpence per mile. Plaint iflf X^leaded that terms of notice did not extend to protect a defect in the truck itself; and, if it did, the condition was un- reasonable, and should be disregarded under 17 & 18 Vic, cap. 31 (Eailway and Canal Act). The Court gave a verdict for Company, on the ground that the special contract was reasonable and within the power of the Company to make. Baron Martin gave Judgment, and quoted Simon v. Great Western Raihvay Coonpany (18 Common Bench, 805); Par- dington v. South Western Raihvay Company (1 Hurlstone and Norton, 392) ; and Chippendale v. Lancashire and Yorkshire Raihvay Company (21 Law Journal, 22 Queen's Bench). He said — " Supposing the special contract was held unreason- able, the Company were not responsible, no negligence being shown ; and the rule as to the liability of carriers for all losses (not caused by the act of Grod or the Queen's enemies) did not extend to horses or hve anionals. In the case of Chippen- dale, the Judgment furnishes a direct authority that the special contract extends to defects in the trucks. The Jury found that the truck was unfit and unsafe, and that the damage to the cattle was consequent upon it. The Court think that the risk in the conveyance of live cattle is the risk of their breaking the trucks or boxes in which they are conveyed." Judgment for Company. — Tried before full CoilH of Exchequer, January 26, 1858. (K.B. — In Pardington's Case it was stated the special contract included " from suffocation, or from being trampled upon, or bruised, or otherwise injured in transit, from fire, &c.) An appeal from this decision was taken to the Exchequer Chamber, and the Judgment was reversed. Judgment being against the Company. Justice Williams said — " The Court agree with the opinion expressed by Chief Justice Jervis, in Simons v. Great Western, that the true construction of the Act (17 & 18 Vic, cap. 31) and the result of its provisions is this — ' That the Company may make special contracts with their customers, provided they are just and reasonable, and signed ; and 1054 HORSE CASES. whereas the monopoly created by railways compels the public to employ them in the conveyance of their goods, the Legislature have thought it fit to impose the further security that the Court shall see that the conditions or special contract is just and reasonable.' In effect, before the statute, every case in which a special limited liability was substituted for the general common law obligation of the carrier, whether by notice acquiesced in or document signed by the customer, was one of special contract, and the statute is to be construed with reference to that state of law. It remains to consider whether the condition of special con- tract in the case before us is just and reasonable, and we are of opinion it is not. In order to bring the Company within its protection it is necessary to construe it as excluding responsibility for loss occasioned, not only by all risks of whatever kind directly incident to the transit, but also for that caused by the insufficiency of the carriages provided by the Company, though occasioned by their own negligence or mis- conduct. The sufficiency or insufficiency of the vehicles by which the Company are to carry on their business is a matter, generally speaking, which they and they alone have, or ought to have, the means of fully ascertaining ; and it would, we think, not only be unreasonable, but mischievous, if they were to be allowed to absolve themselves from the consequences of neglecting to perform properly that which seems naturally to belong to them as a duty. It is unreasonable that the Com- pany should stipulate for exemption from liability from the consequences of their own negligence, however gross, or mis- conduct, however flagrant ; and that is what the condition under consideration professes to do. That condition is therefore void, and the case stands simply upon 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. This being the opinion of the majority of the Court, the Judgment of the Court of Exchequer is therefore reversed, and our Judgment is for the Plaintiff." Justices Crompton, Crowder, and Willes concurred. Justice Erie dissented, and, in relation to a carrier's liability, he said — " If a person chooses to profess to be a common HORSE CASES. 1055 carrier, the law creates a duty to receive things brought for carriage, and he may be liable, ex delicto, for a refusal to receive — Picl'ford V. Grand Junction (8 M. & W., 372). But this duty is regulated according to his will in many respects. He may choose the kind of conveyance, the times of transit, the mode of delivery, the articles that he will profess to carry, what price he will have, when he shall be paid ; and the duty to receive is always limited by his convenience to carry — Jackson v. Rogers (2 Show, 327), Johnston v. North Midland (4 Exch., 367). This right to qualify the duty of receiving according to terms and conditions fixed by the carrier alone comprises the right to qualify the common law duty of insuring safety, a duty which has given rise to much discussion. Lord Hale, in Morse v. Slue (1 Vent., 238), says — ' If a carrier will, he may make a caution for himself, which, if he omits and takes in goods generally, he shall answer for what happens.' A carrier's duty to receive and his right to reject — in some cases absolutely, in others conditionally — without regard to the will of the customer, and therefore without special contract, remained as before the passing of 11 Geo. IV. and 1 Will. IV., cap. 68 " {H. & N., vol. 4, page 336). Judgment against Company. — Tried in the Exchequer Chamber, May 17, 1 859.—Laiv Journal Rejports, vol. 28, jjage 353. 74-0. M^Cance v. London and North Western Railivay CWmpany. — Action for £40 for injury to two horses and the death of a third, resulting solely from the defective state of the bottom of a waggon — Liverpool to Wolverhampton. There were seven horses sent in the truck. Plaintiff signed a declaration that the horses did not exceed £10 each in value, and at the end of the declaration was — " And in consideration of the rate charged for conveyance of such horses, I hereby agree that the same are to be carried entirely at the owner's risk." The Company's usual notices were on the back of the cattle ticket. Plaintiff admitted in Court he purchased the horses for sums varying from £'30 to £35 each. Four of the seven horses belonged to Keating, but they were all booked in Plaintiff's name ; but Keating acted for Plaintiff, and booked them, and made a cross to Plaintiff's name at foot of declara- 1056 HORSE CASES. tion. Keating swore the declaration was not read over to him, and that he could neither read nor write ; that he did not know what the declaration was, but thought it referred to the loading or unloading. The Company's clerk swore he read over the declaration to Keating, and the Court believed him. The case was first tried at the Liverpool Summer Assizes, when a verdict was given for the Plaintiff for £40. The Company had leave to appeal. On the appeal case Chief Baron Pollock said — " I think the declaration of the value is no part of the agreement to carry. It was a declaration made expressly with a view to induce the Company to carry. It was falsely made to induce them to carry — that is, to enter into the contract. I am of opinion that when persons have made a declaration of that sort for the purpose of inducing others to act, and they have acted upon it, and it turns out to be false, they are so far bound by it that it should not be imposed on a Jury to find any other value than the value the parties themselves have set upon their property." Baron Brauiwell concurred, and said — " I consider myself bound by 3PManus's Case, and therefore that the latter part of the declaration — that the horses are to be carried without any risk on the part of the Company — is an unreasonable condition. I think the declaration of value of £10 per horse is not part of the contract, and therefore it is open to them to set it up as affecting damages. Here is a man attempting to make a claim, to my mind dishonest — a claim unjust to his own knowledge and contrary to his engagement ; and unhappily, when he comes into the witness-box, he is temj)ted to sujiport it on oath by a statement not true (declaration not being read over to him). He says — ' True, I have entered into a contract ; but it is unreasonable, and by a little colouring of the case I can make the Kailway Company liable.' I should like to refer to the case of Clarke v. Gray (6 East, 564), where a common carrier's limitation of liability to £5 was held not to be a quali- fication of the contract. The object of the clause is defined by Lord Ellenborough — ' Its proper office is to limit the province of the Jury in the assessment of damages for a broken contract, and of course has no concern with it as long as it is executory HOKSE CASES. 1057 and in the course of its performance.' " Baron Wilde said — " The Plaintiff ought not to have damages except upon the footing that the horses were worth £10 each." Verdict against Company for £25, the amount that had been paid into Court, and the estimate of the damages at the rate of £10 per horse. — Tried in CouH of Exchequer, Nov. 19, 1861. — From Lavj Journal Reports, vol. 31, page 65, Exchequer. Plaintifif appealed to the Exchequer Chamber, when the Judgment was affirmed, it being held that the declaration of the value of the horses was not part of the contract between the Plaintiff and the Company, but a statement of a fact by the Plaintiff, assumed and agreed to by the Company as the basis upon which the contemplated contract was to be framed ; and that consequently the Plaintiff was not at liberty afterwards to deny the truth of this conventional state of the facts, nor to show that the real value of the horses exceeded £10 each. Judgment for Company. — From Lavj Journal RepoHs, vol. 34, page 39. 74-1 1 Lloyd V. Waterfo7xl and Limerick Railway Com- pany. — Action for £300 for delay and consequent injury to seventeen horses, Limerick to Dublin. Sender, before for- warding the horses, WTote to the Limerick station-master to know whether horses could be forwarded from Limerick to arrive in Dublin in time to be shijDped to England the same day. The station-master replied by letter that " the horses might be sent for the special 8 a.m. train next day." The Company had two rates and two forms of consignment notes. Condition A, for the lower rate, absolved the Company from all liability in respect of the carriage of horses. Condition B, attached to the higher rate of 20 per cent, extra, was that the Company would not be liable for any injuries unless pointed out to the Company's agent at the time of unloading; that the Company should not be responsible for the delivery of horses at any particular time or for any particular market or race meeting ; that the Comj)any would not be liable for more than the value of horses specified in the Eaihvay and Canal Traffic Act, 1854, unless the excess of such horses' value be declared at the time of delivery, and there would be a 67 1058 HORSE CASES. charge of 5 per cent, extra in sucli cases on the value. The Plaintiff paid the lower rate under condition A. The printed form to be filled uj) by sender of live stock purported to be signed by Mr. Whiteside, the Plaintiff's assistant. It was not signed by him, though it was by the clerk under his authority, but Mr. Whiteside had no authority to depute a third person to do so. Plaintiff contended that under the Company's risk rate B the conditions were unreasonable, and that, although he had an alternative rate offered, its conditions being unreasonable it was not a fair and reasonable alternative to offer him. Under the Company's risk rate " the Company are not to be liable for injury unless pointed out at the time of delivery," when the injury is, and necessarily must be, unknown. The con- dition B is therefore unreasonable, and the contract falls to the ground. The Court held as follows: — "We disallow the demurrer in this case on the grounds that the condition A, as it stands by itself, was an unreasonable one, and that the contract for con- veyance could only be made reasonable in case the alternative condition B were reasonable ; and as that part of the condition B which obliged the party to point out at the time of unloading the injuries the animals might have sustained in their transit or conveyance was unreasonable, therefore the con- tract (as a whole) was unreasonable." — Tried in Court of Queen^s Bench, Dublin, April 25, 1862. — From Laiv Times Reports, vol. 9, page 89 ; cmd Irish Jurist, vol. 14, page 241. 74-2 . Mo fat V. Great Western Railway Company. — Action for a mare strangled in a horse-box at High Wycombe Station. The mare had been loaded in a horse-box which was waiting for the train. A porter, hearing a noise, looked into the box and found that the mare had got her foot into the manger in front of her. She then slipped, and was strangled by the head rope before a knife could be got to cut the rope. She was tied with two ropes, one two feet and the other three feet long. It was not stated who tied her up. Plaintiff maintained that the two ropes should have been only 18 inches long. Justice Keating told the Jury — " The negligence suggested here was that the HORSE CASES. 1059 halters were not of the same length. It was for the Jury to decide this. It was for them to consider whether it is reason- able on the part of the public to expect that a railway company should gauge at their peril the length of a halter which a blood horse, as distinguished from other horses, required. The viciousness of the animal was also a question for them to decide." The Special Jury gave a verdict against the Company for £20. Tried in Court of Common Pleas, February 4, 1867. — Law Times Reports, vol. 15, page 630. 743. Kendall v. London and South Western Railway Company. — -Action for injury to a horse. The Plaintiff delivered the horse to go to Ewell. The horse was carefully loaded ; it had the saddle on, and the stirrups were hanging down as if for riding, and the porter who loaded the horse said it would be safer to leave them so than draw them up to the top of the stirrup leathers. Nothing went wrong with the train, nor was the horse heard to be kicking on the journey, nor were there any signs of fresh kicking by splintered wood or otherwise; yet at the journey's end the horse was found to have sustained severe injuries, such as a cut on the forearm and several cuts on the hocks, besides a dislocated fetlock joint of the hind leg. The Company relied upon their public notice as a defence. The case was first tried before Baron Martin, at the London Sittings, when a verdict was given for the Company. The Plaintiff appealed, and on the appeal case Baron Bramwell said — " There is no doubt in this case the horse was the immediate cause of its own injuries — that is to say, no person got into the box and injured it. It slipped or fell, or kicked or plunged, or in some way hurt itself. If it did so from no cause other than its inherent propensities, ' its proper vice ' — that is to say, from fright or temper, or struggling to keep its legs — the Company are not liable. If from the Company's negligence, it would be otherwise. If perishable articles, say soft fruit, are damaged by their own weight and the inevitable shaking of the carriage, they are injured through their own intrinsic qualities. The evidence of the Plaintiff makes it improbable it was the ' proper vice ' of the horse. The evidence of the Company makes it impossible it was otherwise." Baron 1060 HORSE CASES. Martin concurred. Baron Pigott dissented, and said — " I infer (there being no negligence on either side) that the animal was either thrown or got down in the box, and in struggHng to get up again received the injuries. In my opinion the cut on the forearm was clearly caused by its lying on the stirrup, and the injuries on the hocks and fetlock by struggling and kicking on the floor of the box. Since the case of 3PManus v. Lancashire and Yorkshire there is no distinction, in safely carrying, between live animals and merchandise. This present case is reduced to one of onus of proof, and upon whom is such onus cast ? It seems to me the carrier should, if he rely upon any exception to his common law liability, show by affirmative proof that the case is brought within the exception. I therefore think the Plaintiff" entitled to recover." The majority of the Court holding the contrary opinion. Judgment was given for the Company. — Tried in Court of Exchequer, April 27 and June 10, 1872. — From Law Journal Reports, vol. 41, page 184. y44-. Moore v. Great Northern Raihuay (Ireland) Com- pany. — Action for injury to a racehorse, " Beauchamp the Second," Dublin to Gormanstown. On the Gormanstown Station there was a lot of lumber and baskets on the platform, which left only a narrow passage for the horse between the baskets and the edge of the platform, part of which was taken up with the coping-stone. The horse got his leg between the coping-stone and the horse-box, and was thereby injured and prevented from running at Bellewstown. The horse shied at the baskets, and his foot slipped on the coping-stone. It was raining heavily at the time, but if he had not shied he could have gone past as five other horses had done before him. The horse was carried at owner's risk, and the Company's usual con- ditions signed. The Jury on the first trial gave a verdict for the Plaintiff. On the appeal case Justice Fitzgerald said — " The Plaintiff" selected the reduced rate, and signed the contract ticket and conditions. The full rate for the six horses was £1 16s.; the reduced rate was £1 12s. No question arose on the reasonable- ness of the rate. The learned Judge in the previous trial con- sidered the following condition to be unfair and unreasonable, HOESE CASES. 1061 namely—' In no case will the Company be liable for injuries caused by fear or restiveness of animals.' We are of opinion that this only applied to all cases in which the injury arises from the fear or restiveness created by the transit in its ordinary accompaniments, and without any negligence or default on the part of the Company — such, for instance, as contiguity to the engine, noise of the engine, or whistling, shunting, passing trains, &c. Taken in' that limited sense, we are of opinion that the condition was not unreasonable. For myself, I desire to say that I was much struck by the Judg- ment of Lord Justice Bramwell in Lewis v. Great Western, and would be inclined, if necessary, to adopt his broad common sense ; and, applying some of his observations to the present case, I should say the most cogent evidence that the whole contract was fair and reasonable is afforded by the fact that the Plaintiff accepted and signed it, and not for the first time. He is a professional owner of horses, and knows the risks to which they are exposed on the rail ; yet he consents to the contract, and trusts, in case of loss, to the ingenuity of counsel to show in some way or other that it is not just or reasonable. Upon the whole, we are of oj)inion that the alternative contract offered to the Plaintiff was limited only by conditions which were just and reasonable, and that in lieu of that the Plaintiff having voluntarily accepted and signed a special contract by which he practically took upon himself all risks, he is not now, under the circumstances of the case, entitled to recover." Judgment for Company. — Toned in the Court of Qiieen^s Bench Division, February 16 and March 4, 1882. — From Law Reports {Ireland), vol. 10, page 95. 1062 HORSE CASES. HoESES Killed on Eailway Ckossings and Stations. Case No. Fawcett v. Yorh and North Midland (1851) 745 Horses strayed on to a level crossing, the gate having been left open, and Avere killed — Company held liable — Faulty construction of gate. Carr v. Lancasliire and YorlsJdre (1852) ... ... ... 746 Horse killed by shunting — Gross negligence proved — Held, Com- pany not liable, owing to special contract. Hodr/man v. West Midland (1864) 747 Horse injured on loading bank before being received or booked — Company held liable to the extent of £50 (value undeclared). Batvson y. Midland (1872) ... ••• ... ... ... 748 Mare strayed on to line through gap in Company's fence — She was owned by a person who only rented a stable in the field — Com- pany held liable. Combe V. London and South Western {187 -i) ... ... ... 749 Colt broke its leg while being unloaded from truck — Com- pany held liable. 74-5. Faiucett v. York and North Midland Railway Company. — Action for £55, value of two horses killed at Burton Salmon at a level crossing. The horses had strayed on the Hne, and the Company's gate approaching the level crossing had been left open. The railway was crossed by the Grreat North Eoad upon arches. Under one of these arches an occupation road passed, and which the level crossing accommodated. The gates controlling this crossing were not fixed at the two sides of the crossing ; one was at that side of the arch farthest from the crossing, and the other gate (which, however, we have nothing to do with) was also some yards away from the crossing on the other side. From the gate at the arch there was a slip road, with a gate at the end, leading on to the Grreat North Road. The two horses had jumped and got through two or three fields and strayed into the North Eoad, thence through the gate and down the slip road, and thence through the open gate at the archway, and thence on to the line, where they were killed by the mail train. The case was first tried before Justice Wightman, at York Summer Assizes, 1850, when the Judge directed the Jury to find for Plaintiff, which they did, with £55 damages, reserving leave for • HORSE CASES. 1063 the Company to move to enter the verdict for them if the Court should be of opinion that there was no evidence of the road being a public highway, or that the Plaintiflf' s horses were not, as against the Defendants, lawfully there. On the appeal case, in the Queen's Bench, the Company contended that under the Highway Act, 5 & 6 Will. IV., cap. 50, sec. 74, the horses were committing a nuisance by straying ; that by the 5 & 6 Vic, cap. 55, sec. 9, the Railway Company are obliged to keep the gates closed to prevent cattle "passing along the road from entering upon the railway ; " that that obligation does not extend to stray cattle, which are not to be protected and are not lawfully on the road. Justice Patteson said — "The 5 & 6 Vic. provides 'that such gates (crossing gates) shall be of such dimensions and so constructed as, when closed across the ends of such turnpike or other roads, to fence in the railway and prevent cattle or horses passing along the road (and over crossing) from entering upon the railway while the gates are closed.' It was entirely by the negligence of the Company in leaving the gate open that the horses have been killed; therefore, as against the Company, I am clear that the horses cannot be said to have been unlawfully on the road." Justices Coleridge and Wight- man concurred. Judgment against Company. — Tried in Court of Queen's Bench, February 7 and 8, 1851.— From Law Journal Reports, vol. 20, page 222. (This Judgment has been varied in subsequent decisions.) 746, Garr v. Lancashire and Yorkshire Railivay Com- pany. — Action for £87 for a horse loaded in a horse-box, Wakefield to Knottingley, which being propelled against some trucks with violence, the horse was seriously damaged, and died in consequence. At the trial, before Baron Alderson, at York Assizes, the Jury found the loss had been occasioned by the gross negligence of the Company, and gave a verdict for £87. A rule nisi having been obtained to arrest the Judgment, the case was re-heard. Baron Parke, in giving Judgment, said — " The question wholly turns upon the notice at the foot of the cattle ticket. It is clear tliat since the passing of the Carriers' Act it is competent for a carrier to make a special contract to convey goods, and that the liability may be made to depend 1064 HORSE CASES. • Upon the terms of the contract. Here a special contract was made, and the only question is the meaning of that contract. The practice of a carrier protecting himself by a mere notice was put an end to by the Carriers' Act. Whether the Company are liable by their common law liability there is no necessity to discuss upon the present state of this record. Sheep, cattle, and horses were not commonly carried by the old road carriers. These are new risks brought about by railways, and it is very reasonable that carriers should be allowed to make agreements to protect themselves against such risks to which in these modern times they are exposed. The rapid motion, the noise of the engine, and various other matters are apt to alarm horses and cause them to do injury to themselves. The only question here is whether the Company have protected them- selves (by special contract) against loss arising from their gross negligence in carrying the Plaintiff's horse. I am of opinion the Plaintiff has taken upon himself all risk of conveyance, and that the Railway Company are only bound to find carriages and propelling power. The Company say they will not be respon- sible for any injury or damage, hoivever caused. Thus the Plaintiff is to stand to all risk of accident or injury, and when we look at the nature of the thing conveyed (the horse), there is nothing unreasonable in this arrangement. If any incon- venience arise from such contracts being entered into, 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. I am of opinion the Company is not liable." Baron Alderson concurred. Baron Piatt did not concur, saying — *' The case of gross negligence, as it seems to me, is not pointed at by the cattle ticket," and he could not think the Plaintiff ever dreamed of such a thing when he signed the contract. Baron Martin concurred with Barons Parke and Alderson, and remarked — " If we hold the carriers in this case responsible for gross negligence, we shall place them in the situation of insurers and underwriters." Judgment for Company. — Tried in Ex- chequer Court, Easter Term, 1 852. — Exchequer Reports, vol. 7, page 707. ^A-V . Hodgraan v. West Midland Raihvay Compaoiy. — Action for loss of a racehorse, Worcester to London. The HOESE CASES. 1065 horse was brought on to the loading bank. A porter called out, " London horses this way," and the groom took the horse in the direction indicated. There were a quantity of sharp-edged girders or rails lying on the bank. Another horse in front became terrified, and backed upon the Plaintiff's horse. This caused Plaintiff's horse to back suddenly against the girders, and the result was Plaintiff's horse became injured by the sharp edge of one of the girders, and it became necessary to kill the animal. No ticket had been given, and no declaration of value made. The practice was not to issue the tickets until the horses had first been loaded. The case was first tried at the Westminster Sittings after Trinity Term, 1863, when Chief Justice Cockburn told the Jury to find for the Plaintiff if they thought the Company had been guilty of negligence in leaving the girders in such a position in the yard and the groom had not been guilty of negligence. The Jury found a verdict for Plaintiff for £1,000. The Company appealed, calling upon Plaintiff to show cause why the damages should not be reduced to £50, on the ground that the Plaintiffs right to recover was limited to that sum by the 17 & 18 Vic, cap. 31. On the appeal case, in delivering Judgment, Justice Mellor said — "In the provisions of the statute 17 and 18 Vic, cap. 31, sec. 7, it is stated, ' with respect to the receiving, forwarding, and delivering of any such animals ; ' then follows the proviso as to £50 being the maximum value the Company shall be liable for in the absence of a declaration. The horse was sent to the Company's premises for the sole purpose of being received, forwarded, and delivered, and I think the accident occurred in the course of the delivering to and the receiving by the Company. It cannot, I think, be contended that the limitation of the liability of the Company only commences with the taking of the ticket, for, if so, the act of receiving the horse would be complete by placing it in the box before the limitation would attach. It appears to me the more reasonable construction is that so soon as the horse enters the Company's premises for the purpose of being received, forwarded, and delivered, the act of delivery begins, and that if the person sending a horse to be carried on the railway desires to be in a position to recover against the Company greater damages than the amount limited 1066 HORSE CASES. by the statute, he must have onade the requisite declaration of value before the horse was taken to the premises of the Company. I think the limitation extends beyondthe duration of the contract to carry, viz., to all the incidents of the particu- lar traffic — that is, to all the incidents attending the delivering and receiving for the purpose of being carried — and that, if the party delivering the horse to be carried desires to recover a value beyond £50, he must declare such value before the act of delivery begins. The Judgment of the Court, therefore, is to reduce the damages to £50." Justice Blackburn concurred. Chief Justice Cockburn, who had tried the first case, dissented, holding that the horse had not been accepted by the Company, and that the Act in question was consequently not applicable ; that the Company were liable on their common law liability for .negligence in allowing the obstruction. " It is brought against them, as owners of a yard across which they invite the public to pass, for negligence in not keeping the yard in a proper condition so that it could be passed with safety ; it being now settled that any one inviting the public to a given place for purpose of business is bound to take reasonable care that the place in question can be entered with safety. It makes no difference that the Defendants are railway carriers. Their liability arises in their characters of owners of the yard, not of carriers, and the statutory protection afforded them as carriers, and as carriers only, can have no application. The proviso which for this purpose incorporates the provisions of the Carriers' Act, 11 Greo. IV. and 1 Will. IV., cap. 68, requires the same notice as is required by the 2nd section of the Carriers' Act, and which by the 3rd section of that Act is made the condition of the protection. No proof was given of any such notice having been put up as required, and the probability is the Company trust to the terms and conditions printed on the tickets which they deliver." Judgment for Company, reducing damages to £50. — Tried in Court of Queen's Bench, June 13, 1864.— From Law Journal Reports, vol. 33, page 233. 748. Daivson v. Midland Raihvay Company. — Action for £31 10s., value of a mare that escaped out of a field adjoining the railway and was killed. There was a stable in HORSE CASES. 1067 the field, and Plaintifi' had leave from the owner of the stable and field, who was a friend, to keep his mare in the stable, for which he paid, and to graze her in the field free of charge. One night the mare escaped from the stable (without, as the Jury found, any negligence on the part of the Plaintiff) into the field, and thence through a gap in the railway fence on to the railway. The Company contended they were only bound to keep the fence in repair against the cattle of owners and occupiers, and not as to the Plaintiff. The case was first tried before Justice Blackburn, at Warwick Summer Assizes, 1872, when the verdict for amount claimed was entered for Plaintiff. The Company appealed, and on the appeal case Chief Baron Kelly said — " The mare was lawfully in the close, out of which she escaped on to the railway through a defect in the fence, which the Company were bound to keep in repair. It was argued that only the owner or occupier of the close could main- tain this action ; but the mare was in the close by the license of the occupier, and it would be against common sense if we were to construe the statute to mean that under these circum- stances the owner of the mare could not maintain this action." Barons Martin, Bramwell, and Pigott concurred. Judgment against Company. — Tried in Court of Coononon Pleas, Novem- ber 7, 1872. — From Law Jouriial Reports, vol. 42, page 49. 749. Coriibe v. London and South Western Raihvay Company. — Action for the value of a blood colt, which got its leg broken at Farnham Station while being unloaded fi'om a railway truck. Two mares and two colts, accompanied by a groom, left Wadhurst Station, on the South Eastern line, in two South Eastern trucks. The horses were booked to Guildford Junction. At Guildford the groom re-booked on from there to Farnham, a London and South Western Station, and the horses went on in the same trucks without remark. When the horses were loaded at Wadhurst, the groom noticed that when the flaps of the waggons were let down there was a space of three inches, sufficient to let a colt's foot go through. The porters filled up the opening, and the loading was safely performed. At Farnham the groom called attention to the same matter, and, a piece of board not being available, the 1068 HORSE CASES. space was stuffed with straw, the same as had been done at Wadhurst. One mare and foal were unloaded all right. In unloading the second, the groom stood inside the box with his back to the flap, holding the mare and foal back till the porters said " All right ; " he then led the mare out, but the foal, as it followed, put its leg through the opening and broke its leg, and had to be destroyed. The case was first tried at Westminster, before Justice Brett and a Jury, when the Jury held that the truck was not reasonably fit for the conveyance of such horses, and that there was a want of reasonable care in the Company's servants in the unloading of the second truck at Famham, and that there was no contributory negligence on the part of the groom. Verdict against the Company. The Company appealed, when Justice Keating said — " At the time the contract was entered into, the horses were in a truck belonging to the South Eastern Kailway Company, and the Company elected to take the horses on in that truck in which they were, and so incurred a liability in respect of the reasonable fitness of the truck of which they could not divest themselves without showing a special contract with the Plaintiff by which he elected to use this particular truck. That truck was defective, and it has been found by the Jury so to have been, and found on sufficient evidence, I think. The groom did nothing to take the matter out of the hands of the Company's servants ; he did not control them in the delivery of the horses, nor was it their business to be controlled by him. I think that anything resulting from their imperfect attempt to cure the defect of the waggon with the straw is attributable to the Company's servants." Chief Justice Coleridge and Justice Denman concurred. Judgment against Company. — Tried in the Court of Common Pleas^ November 17 and 18, 1874. — From Law Times Reports, vol. SI, page 613. horse cases. 1069 Horses — Miscellaneous Cases. Case No. Wise y. Great Western {IQbQ) ... ... ... ... .., 750 Horse injured from delay at station in horse-box, consignee not applying for same — Company held not liable. liobinson v. London and South Western (1865) ... ... ... 751 Unless the sender of a, horse makes a declaration that the value is over £50, the carrier cannot, although sender may admit the real value to be over £50, charge insurance on the excess over £50. Great Northern y. Swaffield (187 -i) 752 No person came to receive a horse on its arrival — It is sent to livery stables— The Company entitled to recover the livery stable charges, but have no lien to detain the horse for same. Woody. Great Northern (of Ireland) (ISSO) 734 Held (Quarter Sessions), that putting a horse to livery in the absence of it being claim.ed by consignee on arrival is tantamount to delivery to consignee. 750, Wise V. Great Western Raihvay Company. — Action for £50 for damage to a horse, Newbury to Windsor. The horse had been lent on hire, and was being returned to the owner at Eton, and Windsor was the nearest station. Con- signee received no advice from sender to inquire for the horse at Windsor until the day after despatch. Sender, Johnson, signed the following note : — ■ " Great Western Railway. — 9.45 a.m. train, March 31, 1855, Newbury to Windsor — Mr. Wise, of Eton — Paid for OTie horse, 12s. 6d. Notice. — The directors will not be answerable for damage done to any horses conveyed by this railway. I agree to abide l)y the above notice. — W. T. Johnson." The horse reached Windsor the same afternoon, and was shunted into a siding and forgotten. Next day consignee went for the horse, and found it was much injured by being kept in one position all night and exjjosed to the cold. It was contended the injury was occasioned by the negligence of the Company. A witness proved the Company were in the habit of sending horses to a stable near the station when there was no one to meet them. The case was first tried at the London Sittings after Michaelmas Term, before the Lord Chief Baron. The Baron directed a verdict for the Company, with leave to appeal. On the appeal case Chief Baron Pollock said — " There 1070 HORSE CASES. can be no doubt whatever but that the person who had hired the horse was himself the real cause of all the mischief. The Com- pany to a certain extent may have been blamable, but the sender had sent the horse without any letter intimating he was coming, and without any groom to attend him on the journey. It appears to us an attempt to throw on the Railway Company that which was really occasioned by the person who sent the horse. But we think the mischief was within the notice, and that the horse being accepted under a sj)ecial contract, the Company was not liable for any damage that might be done to him while remaining in the station till somebody came for him. This must be considered as part of the risk of sending him from one place to another." Judgment for Company. — Tried in Court of Exchequer^ April 30, 1856. — From Law Journal Reports, vol. 25, page 258. 751 1 Robinson v. London and South Western Railvjay Company. — Action for damages resulting from the Company refusing to accept and carry a horse, Liss to London. The station-master, who worked the telegraph, saw a message from sender to consignee stating the cost of the mare as £135. The station-master consequently refused to forward the mare unless, in addition to the ordinary carriage of 17s. 6d., insurance of £4 5s. was paid. The Company sustained this course. It seemed to be the practice for the Company, in special cases, to send their own servants down from London for horses, as sender had written to the chief office for a man and horse-box to be sent down for the horse. On the station-master's refusal, sender wrote again on 4th January to the chief office, com- plaining and stating it was true the mare was worth £135, but that he did not intend to insiue her unless in the box she should be found dangerous from her own vice. The mare was tendered to the Company in ordinary course, and refused unless she was insured. She was then sent by the road, and an action brought at the London Sittings after Michaelmas, 1864, before Chief Justice Erie, when a verdict was given for Plaintiff. The Company appealed, and on the appeal case contended that by the Eailway and Canal Act their responsibility for a horse was limited to £50, but when declared of greater value the Company were authorised to charge a percentage over the value above HORSE CASES. 1071 ^50 ; that theii- notices made this known to the pubHe ; and that 5 per cent, was the additional percentage they gave notice would be charged. Chief Justice Erie gave Judgment — " I am of opinion om- Judgment must be against the Company. The Company did refuse to carry the mare, because, as they say, the sender re- fused to declare the value to be greater than £50. I am of opinion the knowledge of the Company as to the value of the mare, not derived from a declaration by the sender, gives no title to the Company to demand a higher insm-ance. It is clear that the knowledge gained by the station-master through the telegraph gave the Company no right to demand the in- surance on a value above £50. The strength of the Company's case (if any) lies in sender's letter of 4th January, where he says he intends to send the horse without insurance, but that, if the mare is vicious, he is willing to insure it, and states the value as £135. I think the effect of that letter is — ' I do not intend to insure ; but I mention the value, not with the view of fixing you with the liability, but that if, on account of the mare being vicious, it be insured, the value for that purpose is £135.' I cannot find in that letter a declaration within the statute. If the Company had said — ' We do not understand what has passed ; if you intend to send the horse uninsured, as not exceeding the value of £50, say so, and we will take the horse ; but unless you say so we shall consider that you intend to claim the higher value, and must require you, therefore, to pay the insurance on such value.' On the whole, I am of opinion that there was no such declaration as would come within the meaning of the statute." Justices Byles, Smith, and Keating concurred. Judgment against Company. — Tried in Court of Conimon Pleas, May 1, 1865. — FroTii Law Journal Reports, vol. 34, page 234. 752. Great NoHhern Railway Company v. Swaffteld. — Action for £17 by Company against owner of a horse for livery stable charges — King's Cross to Sandy. Sender and consignee were the same. The horse was sent on July 5, 1872, by 8.40 p.m. train, and reached Sandy 10.8 p.m. On arrival there was no one at the station to take delivery. Consignee's residence was between fifteen and sixteen miles from Sandy, and 1072 HORSE CASES. unknown to the station officials. Finding no one to take the horse, and it being late at night, the station-master sent the horse to Bennett's livery stables, close to the station. Soon afterwards consignee's servant applied for the horse, and was referred to Bennett, and told by the station-master that he could have the horse on paying the livery charges, which Bennett's man standing by said were 6d. The servant refused to pay the 6d. He then went over to Bennett's, and Bennett said the charge was Is. 6d. The consignee's servant refused with insolence to pay anything, when Bennett said that now he should not have the horse for less than 2s. 6d., the full and usual charge for one night's keep, and which was admitted to be a reasonable charge. The servant went away without the horse. Next morning Defendant (Swaffield) came and de- manded the horse of the station-master. He declined to pay Bennett's charge or recognise him at all, but offered to pay any demand of the Company. The station-master said the Company had been paid, but eventually said — " Eather than that you should go away without the horse, I will j)ay the charges out of my own pocket." Swaffield declined, and went away without the horse. On July 8 the Company wrote Swaffield the horse would be delivered to him without livery charges, but they should look to him for payment thereof. Swaffield replied that if the horse was sent to his house free of expense before a named hour, and 30s. was paid him for expenses, loss of time, and delay in delivery of horse, he would receive the horse, but under no other conditions. The Com- pany replied the horse would remain at the stables at Swaffield's risk and expense. The horse remained at livery until Novem- ber 18, 1872, when the Comj)any sent it to Swaffield's house. The Company paid Bennett £17 for his stable charges — at the rate of l7s. 6d. per week. The Company then sued Swaffield in the County Court for the £17, and were defeated, the Judge holding that there was no contract, express or implied, upon which the Company could recover. The Company ajDpealed. On the appeal case Chief Baron Kelly said — " We are clearly of opinion the Judgment must be for the Comjjany for £17. The Defendant sent a horse to Sandy by the railway, and as it was not directed to be taken to any particular place, someone on his behalf ought to have been ready to receive the horse and HOKSE CASES. 1073 take it away ; but no one was there. The question then arises — What was it the duty of the Company to do ? Had they any choice ? They must either have allowed the animal to stand somewhere on their station until it was starved — a place of danger, where it would have been exceedingly improper to have allowed it to remain — or they must have turned it into the high road, to the danger of itself and all the Queen's sub- jects; or they must have put it in safe custody — in other words, put it where they did, namely, under the care of a livery stable keeper who lived close at hand. The servant comes and demands the horse. Looking at what passed that evening, it may be that an action was maintainable against the stable keeper for refusing to deliver. But next day Defendant came, and the station-master offered to pay the charges out of his own pocket in order that the Defendant might not go away without the horse. This offer the Defendant declined. What were the Company to do ? They could not allow the horse to perish. Then there is the correspondence, in which the De- fendant declines the repeated proposal of the Company to restore him the horse at Sandy without any charges. At last the horse is sent back. The Company placed the horse under the stable keeper's care, and were liable to pay for the keep, and did in fact pay it. I do not entertain a doubt that they are entitled to recover the money from the Defendant, for whose benefit they have incurred the expenditure." Baron Pigott concurred, and said — " I give no opinion whether, on the evening of the 5th July, the charges, 6d., Is. 6d., and 2s. 6d., were rightly made, or whether Defendant's servant was right in refusing to pay those charges." Baron Pollock concurred, and said — " If the case had rested on the first occasion, when the horse having arrived a charge was made in respect of which a lien was insisted upon, I should have thought that the Eailway Company were wrong; but the matter did not end there. I do not know of any decision of English law by which an ordinary carrier of goods by land has been held entitled to recover this sort of charge against the consignee or sender, but, in my opinion, he is." Justice Amphlett concurred. Judgment for Company. — Tried in the CouH of Exchequer, Ajjril 22, 1874.— i^rom Law Journal Reports, vol. 43, 'p'^ge 89. 68 1074 MISCELLANEOUS. Case No. Glover V. London and North Western (1850) ... ... ... 753 The word of a single director will not bind a company, except given at a board meeting. Hunt V. Great JSforthern (1851) 754 Companj' nnable to require prepayment of charge for working back owner's empty coal waggons. East Anglian v. Lytligoe (1851) ... ... ... ... ... 755 Andit clerk dismissed for publishing information relating to company — He retains £30 in hand for his three months' salary, and the retention is accepted as a legal set-off. Travis Y.Midland {1855) 756 Recovery of demurrage. (See also Oxlade v. North Eastern, January, 1857.) Barrett \ . Great Northern {1851) ... ... ... ... 757 Company held not liable to issue a through ticket on to another company's line because the two lines are continuous, no case of public inconvenience having been made out. Williams Y. Great Western {1858) ... ... ... ... 758 Verdict of a Jury in favour of a company cannot be set aside necessarily because a shareholder was on the Jury. Thompson \ . North Eastern (18Q0) 759 A barque stranded and wrecked in a tidal basin of a railway company — Dock company held liable. South Wales Y. Redmond {18%1) 760 A railway not debarred liy its Act from entering into a contract for a steamer to run from its terminal station to a distant point, to and from which traffic was to be through-booked. Belly. Midland {18Q1) 761 Private siding off main line granted imder Company's Act cannot be arbitrarily cancelled. Attorney-General v. Oxford Worcester and Wolverhampton (1862) 762 A company booking passengers by another company's train held liable to joay the duty to Government. Maunsell v. Midland Great Western (1863) 763 Ultra vires agreement between two companies, TJie Queen y. Eastern Counties {1863} , 764 What constitutes gross receipts liable to poor rates. MISCELLAOTJOUS. 1075 Case No. Great Western v. Bailie (1864) ... ... ... ... ... 765 Company held liable under 5 & 6 Will. IV. to be convicted for having a false weighing machine. Attorney-General v. Lancashire and YorJcshire (1864) ... ... 766 Company cannot be assessed for income tax for servants at weekly wages. Napier v. Glasgow and South Western (1865) ... ... ... 767 A steamboat comj^any cannot, under the Railway and Canal Act, coerce a railway company to make through rates with them. London and South Western y . Reeves (1866) ... ... ... 768 Government forage (hay) exempt from turnpike tolls. Savage v. Newry Warrenpoint and Rostrevor (1866) ... ... 769 Company unable to carry all traffic offered exercises the right of giving a preference. Northampton Gas Light Co. v. London and North Western (1868) 770 Coal in owner's waggons lost in transit from an accident, axle of coal waggon breaking — Company not liable, not being common carriers of coal. London and South Western v. Myers (1S69) ... ... ... 771 Goods carried past a junction to station, and back again to jimction, and consignee charged for mileage both ways — Company held to be authorised to do so. Waterfo7'd and Central Ireland and Grand Jury (1871) ... 772 Eecovery from Grand Jury of damages for malicious injury arising from a train being thrown off line. Poivell Duffryn Company v. Taff Vale (1872) 773 A person desiring to use his own locomotive engine on a railway cannot force the company to use their signals for such locomotive and its train. Attorney-General Y . Great Eastern (1Q79) ..• ••• ••• ''* Under certain circumstances one railway company may lend to another company engines and rolling stock to work their line. Attorney-General v. London and North Western (1880)... ... 775 Company liable for Government duty on the 5 per cent, they charge the public for duty, also on fees for sleeping carriage accom- modation. BirTcenhead Lancashire 6f C. J. v. Commissioners of Taxes ... 776 Railway station houses liable to inhabited house duty. Swaine \. Great Northern {'\9>Q^') ... ... ... ••• 7/7 Company opened a siding for manure traffic on their own ground opposite Plaintiff's house— Plaintiff sought an injunction in Chancery, but the case was dismissed. 1076 MISCELLANEOUS. Case No. Great Western v. ••• ••• ••• ••• ' '^ Persons placing an obstruction on an nnopen line, npon which ■workmen were conveyed, held to be rightly punished under 3 & 4 Vic, cap. 97. Toomery. London CJiatTiam and Dover ... ... ... ... 779 Interchange of traffic over a spur line connecting the stations of two companies at Strood. Bishop y. Great Western... ... ... ... ••• ••• 780 Water dropping on to a public street from archway of a rail- way bridge — Held not to be a nuisance under the 18 & 19 Vic. Tlie Queen y. Irish South Eastern (1850) 781 A railway company is not bound to carry a mail guard and hie bags at the same rate as an ordinary passenger. Janus y. Taff Vale and Great Western {18SI) 782 The two Defendants had two separate stations at Cardiif, and between which there was a railway connection, and they were therefore required to convey passengers from the one station to the other. 753. Glover v. London and North Western Railway Company. — Action for the value of certain fencing, deposited by a sub-contractor (Grimson) to fence a new railway. The fencing was placed at certain places near the railway, and taken from there by the Company's labourers and used for the line. Grimson sold the timber to Glover, Plaintiflf. Grimson saw Mr. Ellis, a director of the Company, and complained of the timber having been taken, who requested him to attend a meeting of the Company in London ; and he attended, and was told by Ellis there was a prospect of an amicable arrangement being come to. Such not coming to pass, Glover entered an action. Baron Parke said — " What the directors of a company say at a meeting of the company will bind the company, but not what a single director says when not at a board meeting. There was no evidence in this case to fix the Company. They cannot be considered to have taken these goods by means of their servants, and cannot be made liable by using the goods converted. The Plaintiff's remedy must be against the parties who took the property. To render the Company liable it must be shown that the act was done by the authority of some person acting for the Company within the scope of his authority or MISCELLANEOUS. 1077 by some appointment under seal, or by the Company acting together in committee, as affording some evidence of subsequent adoption." Judgment for Company. — Tried in Court of Ex- chequer of Pleas, Feb. 7, 1850. — Law Journal Reports, vol. 19, page 172. 754. Hunt V. Great Northern Railway Convpany. — Action for £49 19s. 6d. for delay to certain trucks of coal in owner's waggons, which the Company refused to carry from Peterborough to Potter's Bar. The Company refused because, in addition to carriage on the coal, the Company required £2 10s. to be prepaid for bringing back the empty trucks to Peterborough. Plaintiff refused to prepay the £2 10s. The case was first tried in the Barnet County Court. Plaintiff contended that the Company's special Act (13 & 14 Vic, cap. 61, sec. 13), which enabled them to impose 4^d. per mile on every " carriage," did not include or apply to empty coal trucks ; also that the Company had no right to make the charge for £2 10s. beforehand. The Company contended that by County Courts Act (9 & 10 Vic, cap. 95) there was a proviso in section 58 taking questions of " toll " out of the jurisdiction of County Courts. The Judge, however, gave Judgment to Plaintiff for ^239 19s. 6d. and £13 8s. for costs of suit. The Company appealed to the Court of Queen's Bench, when Justice Coleridge said — " The question which I have now to decide is a question of jurisdiction only, and whether the title to toll really came in question at all. It seems to me that it did not, but that the only question was whether, in the particular instance, the liability to the payment of the toll was made out. Nothing can be more distinct than the title to a toll, and whether a thing falls under the description of the articles that are to pay toll. One is purely a question of title, the other of the con- struction of an Act of Parliament. The question here was whether the truck that conveyed the coals was a " carriage." Though the Judge may have had no jurisdiction to try whether the Company had a right to a toll upon carriages, it seems to me that he had a perfect right to say whether a coal truck was a carriage within the meaning of the Act. I express no opinion as to whether the County Court decided the question correctly. 1078 MISCELLANEOUS. If a second action should arise, I think the case would be a very proper one to be' removed into a Superior Court." Judgment against Company. — Tried in Court of Qiteen^s Bench, April 27, 1851.— i^rom Laiv Journal Reports, vol. 20, page 349. 755. East Anglian Raihvay Company v, Lythgoe. — Action for £30, Company's money, due by Defendant to his employers. Defendant was audit clerk to the Company under an agreement at £140 a year, determinable by three months' notice or payment of three months' salary. In August, 1850, the directors discovered that Defendant was carrying on a private correspondence with the manager of another railway, and also an agent who acted as joint agent for Plaintiffs' and another railway, detailing such information as the directors considered should not transpire except at the periodical meet- ings of the Company, or an unfair advantage might be derived from priority of information. The directors challenged Defen- dant with the fact, and he produced copies of three letters he had written, whereupon Defendant was discharged the service without notice or three months' salary. Defendant retained £30 he had in hand towards the £35 he claimed as the quarter's salary. The case was first tried in the Lynn County Court, and Defendant pleaded a " set-off," when the Judge decided in favour of the Defendant and his " set-off," saying — "It has been held in Callo v. Bronveker (4 Car. & P., 518) that to justify such a dismissal there must be proved against him moral misconduct, pecuniary or otherwise, wilful disobedience, or habitual neglect. Neither of the two latter is imputed to him." The Judge did not consider the first and third letter amounted to moral misconduct ; the second letter he considered charged the Company with shuffling conduct. "This was a most improper communication to proceed from an employe of the Company, and would morally abundantly justify the Company in dismissing the Defendant, but it will not legally justify them in dismissing him without notice or salary, because, I think, a proper test by which to try it is this — that in an action for the libel no damages would be recovered unless special damage was proved." This decision was appealed against to the Court of Common Pleas as to whether the MISCELLANEOUS. 1079 " set-off" was properly allowed. The Company contended that Defendant publishing information which he acquired solely in his capacity of audit clerk, and which it was his duty to keep secret, was moral misconduct justifying immediate dismissal without notice or wages. In the note to Cutler v. Poivell (2 Smith's L.C., 20) it is said, as the result of the authorities, " that a clerk, servant, or agent wrongfully dismissed has his election of three remedies — (1) He may bring a special action for his master's breach of contract in dismissing him, and this remedy he may pursue immediately ; (2) he may wait till the termination of the period for which he was hired, and he may then perhaps sue for his whole wages in indebitatus assumjjsit^ relying on the doctrine of constructive service ; (3) he may treat the contract as rescinded, and immediately sue on a quantum meruit for the work he actually performed." Justice Maule said — " I am of opinion that the case has been properly decided in the County Com-t. It is plain the Judgment of the County Court cannot be reviewed as a matter of fact, although it may with respect to the rejection or admis- sion of evidence. But there was no rejection of evidence here. If the parties leave it to the County Court Judge to decide both the fact and the law (not electing to have a Jury when the ca^e involves a sum over £5), they, in some measure, put the Judge in the situation of an arbitrator, and it is found practi- cally convenient that such a decision should not be ojDen to review. Assumirlg that the appeal will lie, I am of opinion that the Eespondent is entitled to our Judgment, and that the appeal must be dismissed, with costs." Justice Williams and Justice Talfourd concurred. Judgment against Company. — Tried in Court of Common Pleas, Feb. 21, 1851. — Lav) Jour- nal Reports, vol. 20, pacje 84. 756. Travis v. Midland Railway Company. — Action for 9s. 6d., three days' demurrage charged on a waggon of lime not unloaded, and 6d. loss of time by Plaintiffs carter — Derby to Sheffield. Plaintiff was duly advised of the arrival of the waggon, and that the charge would be made. Until he had been notified three times he did not unload the waggon, which he did on the fourth day. Plaintiff pleaded that, as the 1080 MISCELLANEOUS. waggon remained on the Company's premises, and one of their workmen could have unloaded the waggon in half-an-hour, it was not fair to charge him demurrage, as he would have paid the charge for unloading. The Company pleaded the lime was carried at station to station rates — which was cheaper than ordinary rates — and the conditions were that senders should load^and consignees unload. The Judge said — " The Company, having made a special arrangement to carry at cheaper rates, had a right to attach what conditions they chose to the con- veyance under this special arrangement ; and individuals who availed themselves of the arrangement must abide by the conditions attached." Verdict for Company. — Tried at the Sheffield County CouH, May 30, 1855. — Fro'ni Clearing HoiCse Reports, jpage 46. 757. Barrett v. Great Northern, also Midland Railway. — Action in respect to through booking between King's Cross and Settle. Plaintiff sent to Defendants, the Great Northern and jNIidland Companies, notices that on a particular day and train he would demand a through ticket and through convey- ance between King's Cross and Settle, and if same were not granted he would take the Companies to the Court of Common Pleas under the Eailway and Canal Act, 1854. Plaintiff was aware that a through ticket, London to Settle, could be obtained between Euston Square and Settle, but he contended that that route was 19 miles longer than the route via Grreat Northern. Plaintiff carried out his notice in demanding a ticket both at King's Cross and, on the return journey, at Settle, and in both cases he was refused, and he had to book to Leeds and there re-book, and also, at Leeds, to lose time in going from one station to another across the town. He then brought his action, when Chief Justice Cockbm-n gave Judgment. He said — " I am of opinion that no case has been made out by Plaintiff for the interposition of the Court. To justify a party in calling upon the Court to enforce the provisions of this Act, it is not indispensably necessary to show a case of individual grievance, but it is clear that a case of public inconvenience must be made out. It does not appear, even upon Plaintiff's affidavit, that there is a want of sufficient accommodation on the part of the public, and no complaints have been made to MISCELLANEOUS. 1081 the Defendant Companies. I can quite understand that two competing companies may so arrange the departures and arrivals of their respective trains as to operate injuriously to the shorter line and inconveniently to the public. In such a case the Court would be justified in interposing under this Act. But it appears here that abundance of accommodation is provided on the Midland line, and although the distance travelled over is somewhat longer, no additional cost is incurred, nor any material greater loss of time sustained by the public. And one striking fact is that the Great Northern Company, the parties by far the most likely to be injuriously affected by it, so far from complaining, are satisfied with the arrangement existing, and appeal by their counsel to oppose this rule." Justices Cresswell and Williams concurred. Judgment for the Companies. — Tried in Court of Common Pleas, January 13, 1857. — From Neville and Macnamara's Reports, vol. I, page 38. 758. Williams v. Great Western Railway Company. — Action for the value of a bull killed. The case was tried at Worcester, before Justice Byles, and a verdict given for the Company. A rule for a new trial was moved for on the ground that one of the Jury was a shareholder of the Company. Baron Bramwell said — " You should have challenged the Juror ; not having done so, you cannot now, the defect not having been pointed out at the time when it might have been cured, claim a new trial. It would otherwise be open to every person suing a public Company to lie by, take his chance of a verdict, and then apply for a new trial on the ground that a shareholder happened to be in the box." Chief Baron Pollock said — " The Court might interfere if they perceived that injustice had been done, or if there had been any manoeuvre to procure such a person to be on the Jury for the purpose of influencing the other Jurymen." — Tried in Court of Exchequer, November 13, 1858. — From Law Journal Reports, vol. 28, page 2, Exchequer. 759. Thompson v. NoHh Eastern Railway Company. — Claim for value of the barque " New Zealand," 674 tons burthen, stranded and wrecked at the entrance to the Jarrow Docks, near South Shields. On the 3rd March the Company advertised these docks, then newly constructed, as ready for the reception 1082 MISCELLANEOUS. of vessels of 1,000 tons. The "New Zealand" passed in empty, and loaded a cargo of coals ; but on coming out on 19th March with a pilot, got stranded in the tidal basin. Between the river Tyne and the dock the Company had constructed a tidal basin of 9 acres and 540 feet long. This tidal basin had not been completely excavated. A channel 70 feet wide had been cut, but not in a direct line between the entrance of the basin and the entrance of the dock. Each side of this channel was a bank 25 feet wide and 3^ feet high. On one of the banks the barque stranded. The case was tried at the London Sittings after Hilary Term, 1860; and after the Jury had answered a number of questions put to them, the Judge (Chief Justice Cockburn) entered a verdict for Plaintiff, the amount to be settled out of Court. The Company appealed, Avhen the verdict was confirmed in the Queen's Bench, before Chief Justice Cockburn and Justices Hill and Blackburn. It was held the Company were guilty of a negligent breach of duty, which was imposed upon them by common law, of taking reasonable care that their dock, when kept open for public use for their profit, should be so free from obstruction as that those using it might do so without danger to their lives or property. Judge Cockburn considered it was negligent to open a dock for vessels when it was in such a state that at high tides the water of the basin would appear to be throughout of the depth marked on the sill, and yet the navigable water-way was restricted to little more than half the apparent width. No notices were posted up marking the narrower and deeper channel by buoys or other indications. Judgment against Company. — Tried in Court of Queen'' s Bench, November 22, 1860. — jProm Law Journal Reports, vol. 30, jpage 67, Queen's Bench. This decision was appealed against and taken to the Ex- chequer Chamber, where Chief Justice Erie, with the concur- rence of the other Judges, affirmed the Judgment. — From Laiv Journal Reports, vol. 31, page 194. 760. Soutfi Wales Railway Company v. Redmond. — Action by the Company for loss and destruction of pigs and cattle on the sea, between Cork and Milford, which the Com- pany had undertaken, by through contract at Cork, to carry to MISCELLAJSTEOUS. 1083 England. The Defendant had entered into a contract with the Company to run a steamer (" The Troubadour ") in connection with the railway train service between Cork and INIilford for twelve months. There was power to determine the contract after six weeks by giving four weeks' notice. The Company contended that on the voyage in question the steamer was sent to sea in an unfit and unseaworthy condition, with an incom- j)etent master ; that the loss in consequence arose, and that the Company had to recompense the owners of the cattle ; that Defendant took off and discontinued the steamer without giving the Company four weeks' notice. Defendant — That the contract was ultra vires, and made by the Company in violation of the purposes for which the Company was incorporated, and was consequently null and void. Chief Justice Erie said — " I am of opinion the Company is entitled to Judgment. In all cases that I am aware of where a similar contract has been held to be illegal, the object to be effected was something wholly unconnected with the purposes of the incorporation. One of the earliest cases was that of the Harwich Steam Packet Com- pany (Coleman y. Eastern Counties 'Railway, 10 Beavan, 1), where it was held that, as between the shareholders and the directors of the Company, the diversion of a portion of its capital to the support of a concern foreign to the objects of its incorporation was a breach of trust. But there the Company were, in a given event, to purchase the steam vessels. So far from a contract with the Company to facilitate the forwarding of passengers and goods to Ireland being illegal, I rather gather that the Legislature contemplated and intended that a railway terminating at INIilford Haven should forward traffic to and from Ireland ; and therefore this contract would be entirely within the scope and object of the Company's incorporation or exten- sion." Justices Williams and Willes concurred. Judgment for Company. — Tried in Court of Common Pleas, May 31, 1861.— i^ro?7i Common Bench Reports, vol. 10, page 67.1. 761. Bell \. Midland Railway Company.— Action for £5,000 for blocking up and obstructing a coal siding at Leicester belonging to Plaintiff. In 1839 Plaintiff obtained the consent of the Company to make the siding, and it had 1084 MISCELLANEOUS. been worked from that time up to 1857 for coal traffic. The land belonged to Plaintiff, and the Company made an access to connect their railway therewith. Trucks of coal were brought to the mouth of the siding and given an impetus by the engine and shot in. Plaintiff had built a wharf, and let off portions to tenants, charging a royalty per ton on the coal unloaded and a minimum charge. Nutt paid him £200 a year, Grould £180 a year, and the Plaintiff had an offer of £300 for the portion he occupied himself. Plaintiff contended he acquired the use under the Company's Act, 6 & 7 Will. IV., cap. 78 (local and personal), sec. 75, and 7 & 8 Vic. (local and personal), cap. 18, sec. 1, similar to section 76, Railway Clauses Consolidation Act. In June, 1857, the Company gave Plaintiff notice that in September they would cease to provide engine power for the conveyance of waggons to and from the Plaintiff's siding. The Company also set up a coal wharf of their own, and they offered Gould, one of Plaintiff's tenants, accommodation there. The Company placed carriages across the siding junction, and kept them there to block the access; and they also drove wooden baulks in the ground and put a stage thereon upon the line of rails communicating vrith the siding, so as effectually to block up the junction. Nutt offered to drag his waggons by horses, but he was told the Company would not allow the horses on the line. Plaintiff met the chairman of the Company and remonstrated, but was told, "That wharf shall never be a wharf again if I can help it." The case was first tried at the London Sittings before Michaelmas Term, before Chief Justice Erie, who left to the Jury — Did the Company by an intentional obstruction stop up the communication with Plaintiff's wharf, and prevent him from using the same ? The Jury answered in the affirmative, and gave a verdict for £1,000. The Company appealed. Justice Willes said — "I agree with the Chief Justice (Erie) the verdict should stand. The Plaintiff acquired, under a section similar to the 76th section of the Railway Clauses Consolidation Act, the use of a siding, which he used for the purpose of a coal wharf, part of which was let out to tenants, and part re- mained in his own hands for which he desired to get a tenant, to obtain a rent which would be enhanced by the use of the MISCELLANEOUS. 1085 ding. He had as mucli right to use that siding for the convenience of the wharf as the Company had to use their railway for the purpose of making profits on it. If the parties had stood on their strict rights in the first instance, his right would have been to use the railway with engines of his own, and he would have had to get the approval of his engines in the mode pointed out by the statute ; but that was not the way in which the matter was arranged, and the Company supplied the steam power and brought the coals to the mouth of the wharf, gave an impetus to the trucks, and sent them down the siding. That was the course of dealing till the quarrel took place in 1857, which arose, not from the mis- conduct of Bell or his tenants, but from this— that the Eailway Company were desirous of having a wharf of their own, and of withdrawing the traffic from Bell's wharf to it and getting it for themselves, and slopping the use of the siding. This they tried by three means— (1) By ceasing to give the impetus; (2) by stopping the practice of leaving the trucks with coal at the mouth of the wharf, and by carrying them on to their own wharf; (3) and it is on this that the whole question depends, by putting an obstruction at the mouth of the Plaintiff's siding, and directing their servants, in fact, to block it up by a line of carriages, which was to remain and which did remain during the time complained of. This the Company did with the avowed intention of preventing the Plaintiff using the siding at all. Then it is said the Company are not bound by what was said by the chairman, and for a long time I was under the impression that I had mis- understood the counsel, and that all that they meant to do was that they would not carry any longer, and that this obstruction was accidental, or done by the chairman, and not by the Company at all. But I looked at the Judgment in the case in Chancery, and at what took place before Vice- Chancellor Wood in 1858 and the Lord Justices in February, 1859, and on both those occasions it was contended by the Company that they had a right to block up the siding, and that Bell had no right to the siding at all ; and, on finding that, I felt some astonishment that the Company should have in- structed counsel to deny that they had any such intention. 1086 MISCELLANEOUS. That is an entire mistake ; the Company did, in respect of that third matter, so far as they could, and by the most effectual means, stop the siding. Then you have a private right and an obstruction put there to prevent the use of that right, and with the intention of denying it ; and it is said that that is not actionable by the reversioner, first, because it could not be enjoyed without an engine being employed by the Company, and secondly, they say, ' You cannot complain, because you did not bring your trucks to the place.' But lex non cogit ad vana aut ira'possihilia ; it would have been useless to have procured an engine ; it would have been expense thrown away by reason of the act and conduct — and intentional act and conduct — of the Defendants denying the right. It is not like a public right of way on which a man must walk first before he acquire the right. Again, it is said that the Plaintiff cannot bring the action because he was reversioner. The answer to that is, that as to part he had it in his own hands ; but there is another. It is only necessaiy to refer to the case of Kidgell v. Moore (19 Law Journal Eeports, 177, C.P.), in which the locking of a gate was held to be sufiiciently per- manent in its character for a reversioner to maintain an action. One does not like to descend to see whether the gate was on its hinges or not. The obstruction was sufficiently permanent, as was found by the Jury, and there was evidence for them ; but I will remark that an act may be permanently injurious by affecting tenants. Thus an action on the case lies by a man, if his tenants are impoverished by distresses, to come to another Court — Com. Big. lit. — action on the 'Case for a dis- turbance ; ' and ' if he threaten the tenants of another so that they depart from their tenures,' ' Malicious misfeasance.' As to the amount of damages, this was a case, though the action is not in trespass, in which the Jury might give exemplary damages, from the character of the wrong and the way in which it was done. Einiblen v. Myers is an authority for that proposition." Verdict against Company for £1,000 confirmed. — Tried in Court of ComTnon Pleas, April 23, 1861. — From Law Journal Reports, vol. 30, page 273. 762. The Attorney-General v. Oxford Worcester and MISCELLANEOUS. 1087 Wolverhampton Raikvay Company.— kciion for £100 lis. 5d. by the Attorney-aeneral for duty at 5 per cent, on third class passengers between January 7, 1856, and November 30, 1858 booked at some stations on the loop line, Abbotswood to Stoke Works. The piece of line passes through Worcester and is about fourteen miles long, and the Midland Eailway have running powers over it with their own trains, which they exercise. The Oxford Worcester and Wolverhampton Company act as agents for the Midland Company in booking passengers. The 5 &, Q Vic, cap. 79, sec, 4, requires a company receiving the fares to pay the duty to the Grovernment. The 7 & 8 Vic. cap. 85, with regard to the remission of duty on third class traffic, is not applicable to the case of passengers conveyed by one company on the railway belonging to another, and conse- quently the Board of Trade, as soon as they became aware of the arrangement, withdrew their approval of the Midland Company's third class trains running over the loop line. Before passengers booked by a third class train are exempt from duty, the Board of Trade, by the Act, must approve of such train. This approval depends upon the hour of starting, a speed of not less than twelve miles an hour, stoj)page at every passenger station on the line, protection in the carriages from weather. The running powers of the Midland over the loop forbid the carrying of any passengers between inter- mediate stations on the loop. Hence one condition of the Act was not comj^lied with. After the Board of Trade withdrew their approval of the train, they called upon the Midland Com- pany to pay duty on the third class passengers by this train, which ran from Birmingham to Gloucester over the looji. The Midland Eailway Company paid the duty except upon those passengers booked from the loop stations (Worcester was one), and referred the Board of Trade to the Oxford Worcester and Wolverhampton Eailway Company. The Oxford Worcester and Wolverhampton Eailway Company refused to pay, con- tending that the Act 7 & 8 Vic, cap. 85, did not ajjply. Baron Martin held that the Midland Eailway Company, by this Act and by the Oxford Worcester and Wolverhampton Com- pany's Act, were bound to run a third class train from Bir- mingham to Gloucester, including the loop, and were entitled 1088 MISCELLANEOUS. to the exemption. Barons Bramwell, Channell, and Wilde with the Chief Baron, held that the Company actually receiving the fares must pay the duty, and that the train not complying with all the requirements of the Act, the Board of Trade were entitled to withhold the exemption. — Tried in the Court of Exchequer, January 23 and February 27, 1862. — From Law Journal Repoois, vol. SI, page 218. The Great Western Eailway Company, having taken over the Oxford Worcester and Wolverhampton Eailway, appealed to the House of Lords against this decision on the 27th February, 1866, when the Lord Chancellor and Lords Chelms- ford and Kingsdown confirmed the decision of the Court below. Judgment against the Company. — From Laiu Times Reports, vol. 14, page 33. 763. Maunsell and others v. Midland Great Western Rail- way Company and the Great Northern and Western Railway Covipany. — An agreement entered into between two railway companies (sanctioned by the Board of Trade), which was clearly ultra vires, may be set aside in part at the instance of shareholders of one of the companies, but not at the instance of either of the companies of itself. Company A covenant by agreement to apply to Parliament for powers to extend their line of railway and authorise the company to raise additional capital requisite for that purpose. The covenant also extends to authorising Company B to contribute one-third of such additional capital, and raise out of its funds the necessary amount. Such agreement was held to be illegal, the share- holders not having the protection of the Wharncliffe Meeting, by which assent by the shareholders is to be obtained. The agreement was between the Northern and Western Eailway and the Midland Great Western Eailway, both of Ireland, and the extension was to Boyle, Castlebar, Westport, and Ballina. Vice- Chancellor Wood gave a decree as follows : — " Declare that the agreement of August 1, 1859, so far as it purports to bind the Midland Great Western Eailway Company to articles 44, 45, and 47, any or either of them, and so far also as articles 48 and 49, or either of them, purports to subject the Midland Great Western Eailway Company to any action, arbitration, or MISCELLANEOUS. 1089 other proceeding or damages for any non-observance of the aforesaid articles 44, 45, and 47, or any or either of them, is tdtra vires and void." — Tried in Vice-Chancellor WoocVs Courts Fehmary 27 and June 3, 1863.— i^rom Laiu Times, vol. 8, jpages 347 and 826. 764". The Queen v. Eastern Counties Railway Company. — Action by parishes for poor rates. The Company contended that the gross earnings per mile were reducible for poor rate levy by terminals paid out in handling the traffic. The Court held that the stations were to be treated as only indirectly contributing to the profits of the line ; that the amount of terminals and the amount of the expenses incurred in earning them were parts of the general earnings and expenses of the line, and were to be treated as any other part of the gross receipts and outgoings ; and therefore that the Company were wrong. — Tried in Court of Queen's Bench, May 23, 1863. — From Law Journal Reports, vol. S2, page 174, M.C. 765. Great Western Railway Company v. Bailie. — Prosecution by the Inspector of Weights and jMeasures against the Company for having at their Aynhoe Station a weighing machine out of order for a fortnight, weighing 4 lbs. against their customers. The machine worked with a spring, and on the dial-plate are figures engraved from zero to 560 lbs. The pointer stood at 4 lbs. when the scale was empty, consequently in weighing a 14-lbs. parcel the parcel would ajipear to weigh 18 lbs. A parcel of 14 lbs., Aynhoe to London, was charged lOd. ; if it weighed over 14 lbs., say 15 lbs., it was charged lid. The station-master admitted the machine was out of order, and swore he had instructed his porter to make allowance for the 4 lbs. when weighing parcels and excess luggage. He had also written Pooley & Son, the makers, who inspected the machines every three months, in addition to attending to them when reported out of order. The case was first heard before the Special Sessions at Brackley, and referred to Court of (Queen's Bench. Justice Crompton held that the conviction under the 5 & 6 Win. IV., cap. 63, sec. 28, must be affirmed. " Nobody supposes the machine was kept fraudulently by the Company for the purpose of defrauding the passengers, but th(? Act GO 1090 MISCELLANEOUS. intended that they should not keep such a false machine as might lead to mischief if it was improperly used." Justices Mellor and Shee concurred. Judgment against Company. — Tried in Court of Queen's Bench, Nov. 28, 1864. — Fo^oni Laiu Journal Reports, vol. 34, joage 31, M.C. 766. The Attorney-General v. Lancashire and Yorkshire jRaihvay Company. — Action by the Attorney-Greneral for a re- turn, and to assess the Company with income tax, under Schedule E, for their servants in receipt of weekly wages averaging £100 per annum. The Company had always given a return of their salaried officers and clerks. It was held that persons employed at weekly wages are not persons holding public emj)loyments and within the third rule of Schedule E, and a railway com- pany is not liable to be assessed in respect of such servants under 23 Vic, cap. 14, sec. 6. Such persons, if their income amount to £100 a year, are liable to be assessed under Schedule D, directly and in the same manner as other citizens. Judg- ment for Company. — Tried in Court of Exchequer, Jan. 30, 1864. — Laiv Journal Reports, vol. 33, page 163. 767. Napier v. Glasgov) and South Western Railway Company. — Action by a steamboat owner, under the Eailway and Canal Traffic Act, for through rates between Belfast and inland Scotch stations and vice versa. Plaintiff's steamer, the " Lancefield," had been used by Defendants (Glasgow and South Western Railway Company) under an arrangement for through rates to and from Grlasgow, via. Ardrossan, to Belfast, and the carriage divided in certain agreed-upon proportions. The Com- pany, for reasons of their own, ceased the arrangement, and made a similar arrangement with the owner of the steamship " Oscar." Plaintiff continued running his vessel between the ports of Ardrossan and Belfast, bxit was denied the same berth at the wharf as heretofore, which was now occupied by the '' Oscar." Plaintiff then ran his steamer on the three days of the week when the " Oscar " did not run ; still the Comj)any with- held facilities from him. He says these facilities are very great and very important, and, indeed, necessary to success in his trade, and he says that the withholding of these from him is a contravention of the Act. The railway company, he says, won't MISCELLAJJEOUS. 1091 book goods through to Belfast by his vessel, or carry on their traffic to Belfast through the instrumentality of his vessel; that if goods are booked with them for Belfast they send them' all by the " Oscar," and will send none by the " Lancefield " except such as are specially directed and addressed to be sent by the "Lancefield," and the same as to passengers. Plaintiff says the portion of carriage the Company receives when goods are booked through is much less than the sum which they charge for goods going to Ardrossan alone; consequently, when he receives the goods at Ardrossan and takes them on to Belfast, the person who receives them at Belfast by his vessel pays a much higher price than traders receiving goods by the " Oscar." The Company pleaded they had been willing to continue Plaintiff's steamer, but he would not bind himself to keep the steamer regularly on the route. The Company say the subject matter of Plaintiff's complaint does not come within the pro- vision of the statute at all. The section of the Act upon which Plaintiff claims is — "That every railway company, canal company, and railway and canal company, shall, according to their respective, powers, afford all reasonable facilities for the receiving and forwarding and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, tracks, brakes, and other vehicles ; and no snch company shall make or give any nndne 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." The Lord President said — " It is important to observe that the matter that we are dealing with here is not a matter apjolicable to the conveyance of goods merely from Glasgow to Ardrossan. It arises out of an undertaking by the Company to deliver goods at Belfast. I think it is of some importance, in construing this statute, as to whether the clause I have now read is or is not intended to apply to that class of acting ; and I think that some light upon that is thrown by looking to the next part of that clause — 'Every railway company and canal company, or railway and canal com- pany, having or working railways or canals which form i)art of a continuous lino of railway, or railway and canal, communications,, or which have the tenninus, station, or wharf of the one near the terminus, station, or wharf of the other, shall afford all due and reasonabla facilities for receiving and forwarding all the traffic arriving by one of such railways or canals by the other, without any 1092 MISCELLANEOUS. unreasonable delay, and without any snch preference or advantage, or prejudice or disadvantage, as aforesaid,' Now this section is applicable to conveyance beyond the limits of a railway, and implies that the previous part is in reference to conveyance on the railway. But here it is separately pro- vided what they are to do in regard to conveyance beyond the railway, and this provision in regard to their conduct as to traffic going beyond the railway is limited to raihuays and canals, and has nothing to do with deep-sea voyages or any- thing of that kind. This is not a question of an undue preference given to goods going to Ardrossan, of one person over another, or of one species of goods over another. It is a special arrangement in reference to doing something that is ultra of this statute altogether. And is every vessel that starts from Ardrossan to Belfast, which is ready to carry goods through, entitled to say ' You shall allow goods booked to Belfast to come by our vessel at the same rate which you are charging for your through traflSc with others; you shall transact with us as you are transacting with them ' ? It is reasonable the Company should select the parties with whom they are to specially contract, a contract being necessary for the purpose, and I think it is not a matter within the purview of the statute at all." Verdict for Company. Lord Curriehill, Lord Deas, and Lord Ardmillan agreed in this finding. — Tried at the First Division Court, Nov. 25, 1865. — From Clearing House RejjoHs, No. 152, ^age 174. 768. London and South Western Raihcay Company v. Reeves. — Action for turnpike toll on hay for the use of Her Majesty's forces at Aldershot. The Eailway Company were employed by the forage contractor to convey a quantity of hay, and the Company claimed exemption from turnpike toll under the 3 Greo. IV., cap. 126, sec. 32, which exempts from toll "any waggon, &c., or other carriage employed in conveying commis- sariat or other public stores of or belonging to His Majesty, or for the use of His Majesty's forces." The Magistrates of Hamp- shire held that the Company were not exempt of toll, as the commanding officer had power to reject the hay, and hence the hay could not have become stores for the use of Her Majesty. The Company appealed to the Court of Common Pleas, when MISCELLANEOUS. 1093 Chief Justice Erie said—" We think the Magistrates' decision wrong; the stores were in the process of being delivered for the use of Her Majesty's troops. We think the forage con- tractor can hire a company to carry the stores, or anyone he likes, and that the maxim. Qui facit per aliumfacit per se, applies." Judgment for the Company.— TWecZ in CouH of Common Pleas, June 21, 1866.— i^'rom Law Times, vol. 14, page 662. 769. Savage v. Neivry Warrenpoint and Rostrevor Railway Company. — Action, £40 for waggons not being sup- plied, and Plaintiff's coal not being carried, Warrenpoint to Newry. Plaintiff usually sent his coals by canal, but the canal gates being under repair, the canal was stopped. Plaintiff pleaded the Company gave an undue preference. Company put in a notice, previously given to the harbom-master, Warrenpoint, that no waggons could be given to ships for traffic for Newry, as there were plenty of ships discharging cargo for to^vns further inland. Company pleaded they gave the prior accommodation to consignments for the longer distances. The Judge decided for Company — (1) There being no contract with Plaintiff, the Comjiany had a right to make the choice in giving the preference ; (2) if there had been no other cargoes to be carried, then the Company would have been liable; (3) there was no general refusal on Company's part, but a refusal under special circumstances. — Tried before K. Johnston, Esq., Chair- man, Quarter Sessions, Newry, October 26, 1866. 770. Northam^pton Gas Light Company v. London and North Western Raihvay Company. — Action for value of two trucks of coal lost owing to the fracture of one of the axles of one of the trucks, whereby an accident occun-ed — Butterley Coal Company to Northampton. The Plaintiffs hired the trucks from a Mr. Whitehouse, of Northampton, and the trucks had been examined by the owner, the London and North Western Comj^any, and the IMidland Company before and during the journey. The loaded trucks of coal passed safely over the Midland Comjoany's line, and the accident occurred on the London and North Western Comj^any's line (Defendants'). The London and North Western Company 1094 MISCELLANEOUS. waived the right of objection as to their not being the con- tracting company. Frost was proved to have existed at the time of the accident. The Kailwaj Company produced an axle which they swore was the one that broke ; this, however, Plaintiffs disputed by a witness. The Judge said the most reasonable opinion was that the accident arose simply from the fracture of the axle, caused, not by any fault of the Eailway Company, but from some latent defect in the axle itself, which could not have been discovered at any time by the Eailway Company by previous inspection. Plaintiffs had pleaded the break was produced by the train running at an excessive speed, and so causing the wheel of the truck to strike against the V-crossing and the axle to be bent. The Judge said whether frost caused the accident he con- sidered immaterial. He did not think the snapping of an axle during frost can be considered as an " act of Grod " in a legal sense. " According to the decision of Readhead v. Mid- land Railway Goin'pany (36 L.J., Q.B., 181), the Company, as carriers of passengers, would not have been liable for conse- quences of such an accident arising from a latent defect. But here they are carriers of goods, and their liability seems to me to rest upon whether, under the peculiar arrangements, the Eailway Company are common carriers of coal. They convey coal in their own trucks only upon special agreement and at their own discretion for particular parties. The Eailway Com- pany has a distinct statutory power to convey goods in vehicles provided by the consignee or sender, concurrent with and distinct from the power to carry on their own account. The fact that the Eailway Company upon some occasions took charge of goods in a vehicle not provided by them, but by the sender or consignee, would of itself exempt them on those occasions from the ordinary liability of a commooi carrier for the sufficiency of the vehicle. I have come to the conclusion, from all the facts, that the Company are not ' common carriers ' for coal. The Eailway Company have the right to decline to be common carriers of any particular class of goods, although they are common carriers of others, as was decided in Johnson V. Midland Raihuay (4 Exchequer, 367). The Eailway Company, in effect, say to the public — ' AVe will not be common carriers MISCELLANEOUS. 1095 of coal at all, but we will be special carriers of it in particular cases if we can agree as to terms, and we will supply locomotive engines for your coal trains at a fixed charge.' The Eailway Company are liable for any accidents arising to the train which are caused by the negligence of themselves or their servants in the management of it, or in the construction or superintendence of the line and the arrangement of traffic upon it, including, I consider, an accident arising from a defect in any of the vehicles provided by other parties which could have been discovered by the Company upon inspection at one of the usual points on their line before the accident happened. But the accident in this case, as I find upon the evidence, did not arise from any such negligence on the part of the Company."' Verdict for Railway Company. — 1868 (date and place of trial not reported). — From Clearing House RepoHs, No. 201, page 241. 771. London and South Western Railway Company v. Myers. — Action for overcharge. Plaintiff sent goods from Southampton to Luton. The Company carried them to Clap- ham Junction, then on to Xine Elms Station, and then back to Clapham Junction again, and over lines belonging to other companies to Luton. Plaintiff objected to pay the extra mileage charge, seeing that the Company carried the goods over an extra and unnecessary distance for their own con- venience. The case was first tried before the County Court Judge of Hampshire, from whose decision Plaintiff appealed. On the appeal case Chief Justice Bovill said—" The question is whether the Company were bound to carry these goods by the nearest route, and I am of opinion they were not so bound. We must now take it that it was the usual and customary course to send goods on to the Nine Elms Station and back to Clapham Junction, and that this course was a reasonable one ; and this being so, I think the Company were entitled to send the goods in this manner, and charge as they have done." Judgment for Company.— TriecZ in CouH of Queen's Bench, November 15, 1869.— From Law Times Reports, vol. 2l,2jage 460. 772. Waterford and Central Ireland Railway Company —Grand Jury Act, 6 cO 7 Will. IV., cap. 116, sec. 135, /or raalicious injm-y.— Claim for i-'200, made on the Grand Jury of the County Kilkenny, for malicious injury to permanent way, 1096 MISCELLANEOUS. engine, carriages, and waggons. A mixed train ran off tlie rails at Dunmore, owing to malicious removal of fish plates from two joints of rails and displacement of rails 6^ inches. No passengers were hurt. The Grand Jury at Presentment Sessions at Castlecomer, 23rd November, 1870, threw out presentment, on allegation that notices required by Act were not properly given and served. The Company appeared again before Grrand Jury at Court House, Kilkenny Spring Assizes, 10th March, 1871, and after much discussion it was submitted to Judge Lawson to decide — (1) ^Miether notices were i)ro- perly prepared and served ; (2) whether Act was applicable to malicious injuries to railway works, seeing no railways existed when Grand Jury Act was passed. The Judge heard argu- ments, and decided — (1) The notices were correct, and (2) the words " or other work," in section 135 of Act, took in the injury complained of; and referred presentment back to Grand Jury to find as to amount. The engineer and locomotive super- intendent of Company gave evidence as to value. £150 was awarded to be levied of Barony of Fassadineen, in which the malicious injury was so committed. — From Irish Clearing House Reports, No. 56, page 103. 773. The Powell Dufryn Steam Coal Company v. Taff Vale Raihvay Company. — Action of Plaintiffs, a Colliery Company, to be allowed to use their own engines and carriages on the Taff Vale Eailway Company's line, under the powers of the 92nd section of the Railway Clauses Act, 1845, 21 & 22 Vic, cap. 153. The Colliery Company desired to provide engines owned by the Ehymney Eailway Company, an adjacent com- pany, but the defendant Eailway Company had not inspected or approved of such engines, as set forth in 115th section of the Act. The Eailway Company contended that the Colliery Com- pany using their own engines would have the effect of interfering with the general traffic and of making the Colliery Company the managers of their line ; and they closed the gates where the colliery line of three miles joined the main line, and refused to work the signals for the colliery trains. The Colliery Company filed a bill in Chancery for an injunction requiring the Eailway Company to open the gates and work the signals. Vice-Chancellor Wickens said — "I have a strong impression MISCELLAIJEOUS. 1097 that justice is on tlie side of Plaintififs, and that they are merely asserting a right which the Legislature intended to give them. On technical grounds, however, I cannot make the order asked. If I were to grant the injunction it would be inoperative, for I cannot bind the Railway Company to allow the Plaintiffs to work the signals, nor can I compel them to work them for the Plaintiffs' trains. Although, perhaps, the signals may not be so necessary for working the short branch as they would be for working the main line, still the evidence goes to show that they are required. I will not give a conclu- sive decision against the Plaintififs ; to do so would be to decide that the 92nd section of the Eailway Clauses Act is inoperative. I can only say that I entertain great doubts on the point. It seems also doubtful whether the Railway Company have waived their rights under the 115th section. On account of the techni- cal diiB&culties I have referred to, I shall make no order upon it." Judgment for Eailway Company. — Tried in Vice-Chancellor Wickens' CouH, March 7 and 8, 1872. — From Laiv Times RepoHs, vol. 26, page 357. 774. The Attorney-General v. Great Eastern Railway Company, — Action by Ephraim Hutchings, on behalf of the Locomotive Manufacturers' Association and the Railway Carriage Builders' Association, that Defendants (the Great Eastern Rail- way Company) were acting ultra vires in lending for hire to the London Tilbmy and Southend Railway Company locomotive engines, cai'riages, and waggons to work their traffic. The case was first tried before the Master of the Rolls in January, 1878, when Judgment was given against the Railway Company. The Company then appealed to the Court of Appeal, when Lord Justice James said — " I have arrived at the conclusion that the Railway Company are right in each of their contentions. It is manifestly, in my opinion, for the safety and convenience of the public that the same engines, the same carriages, and the same staff should be employed to do all the work, instead of one set doing part and another set doing another part. There is, as it seems to me, no pretence whatever for saying that this is a sham or a colour for enabling the Great Eastern Company to enter into some distinct business outside the 1098 MISCELLANEOUS. Act of Parliament wliich constitutes the deed of partnership between the shareholders. It appears to me that, whether as regards a private partnership, a joint stock company, or an incorporated company, in the absence of iraud or deliberate perversion, the majority of managing partners may be trusted and ought to be trusted in determining for themselves what they may do and to what extent they may go in matters directly connected with or arising out of their business rela- tions with others. Where is this notion of ultra vires to extend to ? Is it ultra vires for a railway company to make profit from the sale of meat and drink at its refreshment rooms ? Would it be %dtra vires for two companies whose Hnes are connected to have joint workshops for the construc- tion or repair of their rolling stock, or joint depots of coals and other stores, or to enter into a joint contract with such persons as the relators for the hire of the rolling stock, and to apportion the costs and expenses between themselves according to the respective train miles run on their several lines ? I am far from saying that a railway company ought to be permitted to carry on the trade of ironmasters, or colliery proprietors, or rolling "stock manufacturers — not casually, not incidentally, not collaterally in the bona Jide conduct of their own property and business, but really as a distinct and separate trade. I am convinced such a case might be properly considered by the Attorney-General, and considered by this Court, as a fraud on the Legislature which had created and authorised the company only for what it professed and undertook to do. It is only where some public mischief is done, or where, in respect of something intended for the public protection, there is a mis- feasance or nonfeasance, that the Attorney-General ought to interfere." Lord Chief Justice Bramwell concurred. Lord Chief Justice Baggallay dissented. There being two to one, the Judgment of the blaster of the Eolls was reversed. Judgment in favour of Great Eastern Kailway Company. — Tried in Court of Apxjeal, January 21, 24, 27, and March 25, ISld.—From Law Times Reports, vol. 40, page 265. This case was carried by appeal to the House of Lords, where the decision of the Court of Appeal was confirmed. — Tried in House of Lords, May 25 and 27, 1880. — From Law Times Reports, vol. 42, page 810. MISCELLANEOUS. 1099 775. The Attorney-General \. London and KoHh Western Raihuay Company. — Action by the Attorney-General against the London and North Western Eailway Company for passenger duty. The Company charge their maximum parliamentary pas- senger tolls and 5 per cent, additional to cover passenger duty. The Attomey-Greneral claimed to be paid duty on the 5 per cent, extra charge. He also claimed to be paid duty on the charge made for sleeping carriage accommodation. Judgment was against the Company in both cases. — Tried in Court of Ex- chequer, March 9, 1880. — From Laiu Times Reports, vol. 42, page 395. The Company referred the case to the Court of Appeal, when the Judgment of the Court of Exchequer was confirmed. — Laiu Journal Reports, vol. 50, page 170. 776; Birkenhead Lancashire and Cheshire Junction Railway Company v. Commissioners of Assessed Taxes. — The Birkenhead Lancashire and Cheshire Junction Company appealed against an assessment made on them of £25 for inhabited house duty for station-masters house at Frodsham. The house was connected^ with the station offices and waiting- rooms. The Company claimed to be exempt ; the surveyor con- tended the contrary. The Commissioners confirmed the charge, and the Company referred it to her Majesty's Judges. Baron Pigott and Justice Shee said — "We are of opinion that the determination of the Commissioners is right." — Heard at a meeting of the Commission at Oakmere, August 28, 1862. — From Laiu Tiimes, vol. 10, page 918. 777. Swaine v. G^^eat Northern Raihuay Company. — Action for the removal of a nuisance and for compensation since its continuance. Plaintiff had a house within some 80 feet of the Company's railway at Stevenage Station. In 1858 the Company made a siding upon land belonging to them which abutted on to a road leading to and immediately in front of the Plaintiff's house and premises. The siding was used for manure traffic. By 1862 the traffic had become very extensive. The manure was very offensive on some occasions ; dead dogs and cats, fish, and other putrescent matter formed part of it. Plaintiff had often complained to the Company's officials. The 1 1 00 MISCELLANEOUS. case was first tried in Chancery, before Vice-Chancellor Wood, who dismissed the case, expressing the opinion that Plaintiff ought to have complained earlier and asserted his right. An appeal was taken by Plaintiff before the Lords Justices in Chancery, when the case was again dismissed and no injunction issued, Plaintiff being referred to bring his action in another Court if so advised. — Tried in Vice-Chancellor Wood's Court, November 17 and 18, 1863. — Laiv Times Reports, vol. 9, pages 571 and 745. W&. Prosecution against several boys for placing a rail- way truck as an obstruction across the Great Western and Brentford Eailway before it was actually opened for traflSc, but at a time when workmen and materials were conveyed upon the constructed portion of the line. The case was tried before the Justices of Middlesex, and the prisoners were convicted ; but an appeal was taken as a " Crown Case Eeserved," on the ground that the 3 & 4 Vic, cap. 97, did not apply to an unopen line. Chief Justice Cockbum held that the statute did apply, and confirmed the conviction.^ — Lata Times, vol. 2, page 392. 77 9 1 In the case of Toomer v. Chatham and Dover and South Eastern Raihvay Companies the Eailway Commissioners, on 6th January, 1877, issued an order requiring the two Com- panies in question, under penalties of £60 and £30 respectively, to arrange and run trains on a spur branch line of 17 chains between the two Strood stations of the two Companies. The Companies appealed to the Exchequer Division, when Barons Cleasby and Hawkins held that the Commissioners had no jurisdiction, under the powers given them by the Eailway Eegulation Act, 1873, and the Eailway and Canal Act, to make the order ; for by the order they were requiring the two Com- panies to act jointly in doing that which neither of them, according to their powers, could do separately. —i^Vo???- Law Times Reports, vol. 37, page 161. 7 8 O . Bishop V. Great Western Railway Company. — Action taken before the Magistrates against the Company (Great Western) for a nuisance in having a railway bridge over a public street in such a condition that water percolated through the arch MISCELLANEOUS. 1101 of the bridge and fell upon persons passing underneath. It was held that, although there might be a nuisance in respect of which the Company were liable to be indicted, they were not liable to be proceeded against under 18 & 19 Vic, cap. 121, sec. 8, inasmuch as the word " nuisances " must be read in the sense of nuisances injurious to health, and the percolation of water as above mentioned could only be said to be indirectly a nuisance injurious to health. Judgment for Company. — From Laiv Journal Reports, vol. 41, page 252. 781. The Queen v. The Irish South Eastern Railway Company. — Action in respect to the carriage of a mail guard. In this case it was decided that a railway company is not bound to carry a mail guard with bags at the same rate as an ordinary passenger; and before the Postmaster-Greneral can compel a company to carry such mail guards a privity must exist between them by the execution of a special contract. — Tried in the GouH of Queen's Bench, June 3 and 4 and November 2, 1850. — Irish Common Law Reports, vol. I, page 29. 782. James v. Taff Vale and Great Western Railway Companies. — Action in respect to two lines of railway not being continuous in booking passengers. Two railway com- panies. Defendants, ran trains to Cardiff. The stations were 55 chains apart from each other, but were connected by a line of railway belonging to one of such companies. Upon complaint by the inhabitants of the district that no passengers were con- veyed on the railway between the two stations, although there was a continuous line of railway, the Commissioners made an order enjoining both the companies to afford a continuous communication for passengers by means of their continuous lines, and to afford due and reasonable facilities for forwarding the passenger traffic arising by one of the lines at Cardiff by the other. — Tried in the Court of Railway Commission, May 3 and 13, 1881. — Solicitors' Journal, vol. 25, page G83. 1102 MISCELLANEOUS. CARRLA.GE OF MILITARY BaGGAGE. Case No. Attorney-General Y . Great SoutJiern and Western (1863) ... 783 It was decided in this case that part of a regiment travelling by rail could lawfully take with them the entire baggage of the whole regiment at the rate of 2d. per ton per mile. RohertsonY. Great SoutJiern and Western (IQTl) ... ... 784: It was decided in the Court of Exchequer, Ireland, that a carrier and contractor could not have military baggage conveyed on the railway at 2d. per ton per mile. Sohertson v. Gi'eat Southern and Western (1878) ... ... 785 The above decision of the Court of Exchequer was overruled by the Court of Appeal. Counsel's opinion as to tlie liahiliti/ of Mailway Companies to carry military stores by passenger trains. 783. The Attorney-General v. Great Southern and Western Railway GoTnpany. — Action in respect to the carrying of mili- tary baggage. The Attorney-Greneral brought this action to recover £12 13s. lOd. alleged overcharge. It appeared that when the 11th Eegiment (Foot) were transferred from Kildare to Cork, part of the regiment marched to Cork by the high road, while the whole of the baggage of the battalion, some 52 tons, was sent by railway, accompanied by an officer and 75 soldiers, with women and children. There was also a second similar case of the 8th Brigade of the Artillery. The Company contended that they were only required by the Act of Parliament to convey at the 2d. per ton per mile regulation rate the actual baggage of the particular soldiers who were at the same time carried by the same train. Held — That public baggage, stores, arms, &c., sent by rail- way in charge of any of Her Majesty's forces specified in the 7 & 8 Vic, cap. 85, sec. 12, is " their baggage," no matter what may be the disproj)ortion between the amount of baggage and the number of the force in charge, and must be carried by the railway company at the rates imposed by that section. Judg- ment against the Company. — Tried in the Court of Exchequer, 1863. — From Irish Common Law Reports, vol. 14, page 47. MISCELLANEOUS. 1103 784. Robertson (trading as Fishbourne & Co.), Railway Carrier, v. Great Southern and Western Railway Company. — Action for difference in the carriage of a quantity of mili- tary baggage between ordinary rates and the rate of 2d. per ton per mile. A carrier, having a contract for his own benefit with the military authorities for the carriage of military stores and baggage, produced to a Railway Company the military route or order for the conveyance of military stores and bag- gage accompanied by a military escort, and required the Com- pany to carry them at the low rates prescribed by the 5 & 6 Vic, cap. 55, sec. 20, and the 7 & 8 Vic, cap. 85, sec 12 ; but the Company insisted upon charging the ordinary rate, which was paid by the carrier. Held — That he could not recover back to his own use the excess as money had and received. The Company pleaded that the 5 &, Q Vic. only binds them to carry at 2d. per ton per mile when the Secretary of War comes to the Railway Company and presents to them troops whom it is necessary to move with their baggage ; that no such communication took place ; that no necessity of moving the troops was shown ; and that the obligation to carry only arises if the necessity for moving troops with their baggage first arise. Upon the record it plainly appears that the custody and con- trol of the goods was with Fishbourne & Co., and there was nothing to show that the military guard going with the bag- gage had any custody or control over it. The allegation that the guard accompanied it does not make it their baggage. The goods were not in the custody of the troops of Her Majesty, but were entrusted to a public carrier to carry for his own profit, and ceased to be public baggage. The statute contem- plated one dealing— one person to be answerable— one person whom the Railway Company could look to for payment. The Railway Company's obligation is not to carry tlie baggage o/the authorities, but for the authorities. Messrs. Fishbourne pleaded the Act was not passed for the benefit of the Secretary of War alone, but for the benefit of the public, that the public revenue might get the benefit of the low rate. The military authorities are entitled to get the benefit of this contract through a contractor, and the interven- tion of a contractor does not practically prevent the beneficial 1104 MISCELLANEOUS. operation of the statute. All the Railway Company have to look to is whether it (the baggage) is the particular kind of commodity or not which they are required to carry according to statute. Chief Baron Palles gave Judgment. After reciting the obligations of the Acts, he held that the route or order which had been produced was proper evidence of the necessity of the movement of the troops. " The question was whether, as the facts stated in the plea, an action for money had and received could be obtained by Fishbourne & Co. against the Eailway Company. That is the only question %m mean to consider. Is the obligation of the Railway Company which has been thus violated an obligation due to Fishbourne & Co. ? If it is, the plea is good. If, on the other hand, it is not, Fishbourne, a stranger to the obligation, cannot sue for its breach, and the plea is necessarily bad. Is, then, the obli- gation one due to Fishbourne & Co., or, in other words, was the statute passed for his benefit? To treat the pro- visions of the Act for the carriage of Her Majesty's troops as made for the beneiit of every member of the community would be to hold that any member of the community might have officers and soldiers of Her Majesty's, with their public baggage, to move, on the necessity arising for their being moved — a conclusion manifestly absurd. A statute made for the benefit of every individual entering into a special arrange- ment with the Grovernment as such, is not a statute made for the benefit of every member of the commimity as such, and there is nothing in the statute to show any benefit intended for members of the community entering into such special arrangements. It appears to us contrary to the general policy of the law that such special benefits should be intended, because this would put it in the power of what the plea calls " the proper authorities " to job the benefit intended for the State to carriers for hire, to whom the public would have more to pay than the statute intended the public — that is, the State — should have to pay. Upon the grounds stated, we do not think the production of the route or order created any obligation to the Company. For these reasons we are of opinion that the plea is bad, and that the demurrer to the rejoinder must be MISCELLA^'EOUS. 1105 allowed." Judgment for Grreat Southern and Western Eailway Company. — Tried in the Court of Exchequer, Dublin, on January 31, 1877, before Chief Baron Palles and Barons Fitzgerald and Deasy. — From Irish Law RepoHs, May, 1877. 785. Great Southern and Western Raikvay Company V. Robertson. — This was an appeal of the Defendant from a decision allowing a demurrer of the Plaintiffs to defences. The Defendant, who represents the firm of Fishbourne & Co., had contracted with the authorities for the conveyance of military baggage, stores, &c., and had used the Plaintiffs' railway for that purpose. He claimed under certain Acts of Parliament tha,t the goods should be carried at the rate of 2d. per ton per mile, but was charged more. The action was brought to recover the difference which he had paid under protest. His defences, which the Court below disallowed, in substance alleged the duty of the Plaintiffs to have carried the goods at the rates prescribed by Acts of Parliament. The Lord Chancellor, in giving Judgment, said the Appellant was a carrier who, in pm'suance of a contract with the military authorities, conveyed by the Great Southern and Western Eailway of Ireland public baggage, stores, and ammu- nition, and, having been by them charged in excess of the rate prescribed by the Act 7 & 8 Vic, cap. 85, for the carriage of such goods, sought to recover back the excess. The Court of Exchequer had determined that he could not succeed. The statutable provisions relating to the matter were the 5 & 6 Vic, cap. 55, and the 7 & 8 Vic, cap. 85. Both obliged soldiers, with their baggage, stores, and ammuni- tion and other necessaries, to be carried by the railways ; but the first left the payment for that carriage to be settled between the Secretary of War and the Company, and the second substituted for that a fixed rate of 2d. per ton per mile. Tlu; case of The Attorney-General v. The Great Southern and Western Raihoay of Ireland, reported in 14 Irish Common Law Reports, decided that in order to take advantage of the l^rovisions of the 12th section of the second Act it was nob necessary that the public baggage, stores, &c., should be accompanied by the whole regiment or battalion to whom they appertained as passengers on the railway at the same time 70 1106 MISCELLANEOUS. with the goods. The words of the section were held to be satisfied by any officers or soldiers accompanying the pubHc baggage or stores. He was by no means satisfied that the true construction of the section was not that the provision as to the rate of charges was not quite inde- pendent of the circumstance as to whether or not the baggage was accompanied by soldiers. But as the view taken in the case he had cited was that which had been adopted in the pleadings and arguments of the case before them, he would in his Judgment also adopt it. The carrier averred in his pleading all the various matters which, if the baof^age had been accom- panied only by military persons, could be suggested as con- ditions to their right to have the goods carried at the statutable rate ; and he then complained that, notwithstanding that, the Eailway Company exacted charges exceeding 2d. per ton per mile. It seemed to be uncontroverted that if there had been no contract between the military authorities and the carrier, and if the baggage had been solely in charge of officers and soldiers, the rate of charge would have been 2d. per ton per mile. Did the fact of the interposition of the contract with the carrier alter the rate of charge, and if not, could the carrier sue to re- cover the overcharge ? The Court of Exchequer seemed to have answered the first question in the affirmative and the second in the negative. The Court of Appeal had arrived at conclusions differing from theirs ; but it should be observed that cases had been cited before them, and principles deduced from those cases, that had not been submitted to the Court below. It appeared to him that the baggage, stores, &c., did not cease to be public because the conveyance of it was arranged for by a carrier, and that the accompaniment of officers and soldiers was not the less so because a carrier was added. He was of opinion that Mr. Robertson, having been obliged to pay more than 2d. per ton per mile, was entitled to recover back the excess. The decision of the Court below should therefore be overruled. As the present was one of the cases that arose before the Judicature Act, there should be no costs of the argument in that Court ; but Mr. Robertson should be allowed the costs of the hearing in the Court below. The Lord Chief Justice, in expressing his concurrence in the Judgment of the Lord Chancellor, briefly referred to the MISCELLA^-EOUS. 1107 statutes, and declared that they imposed on railway companies an obligation with respect to the carriage of baggage of the description in question for the benefit of the public. There was no reason why that obligation should in the present case be held to be discharged, because the military authorities thought proper lo enter into a contract with the Defendant, that the troops and their baggage should still be carried by the railway company at the reduced rates ; and it was to be assumed that the contractor had agreed with the authorities, having re- gard to the fact that for a considerable part of the route the railway would be the proper means of transit. It appeared to him, therefore, that the Company were not justified in declining to carry the baggage at the Parliamentary rates, and that the contractor was entitled to recover the overcharge. Chief Justice Morris — "I have nothing to add to the Judgments pronounced except my concurrence." — Tried in CouH of Apjjeal, November 11, 1878. — Reported in Laiu Reports {Ireland), vol. 2, page 548. Re INIiLiTAEY Stores. Query on behalf of the Irish Railway Clearing House. " It is submitted that railway companies are only bound to carry all baggage, stores, &c., which accompany a regiment going by ordinary passenger trains at 2d. per ton per mile, but that they cannot be compelled to carry by passenger trains military stores sent by a contractor for delivery at barracks and other places required by the authorities. " To attach goods waggons to passenger trains is at all times dangerous, and if the War Authorities can insist on stores, to any extent they please, being carried by these trains, accidents and delays are likely to occur, no matter what precautions are taken. " Counsel will please advise— " Whether railway companies are bound to carry military stores by passenger trains, and if so, what charge they are entitled to make for such conveyance." Opinion of Mr. If. D. Andrews, Q.G., now Mr. Justice Andrews. "The 12th section of the 7 & 8 Vic, cap. 85, leaves this question open to doubt. I am not aware of any decision 1108 mSCELLAXEOUS. upon it, and I am unable to express a confident opinion as to what view the Court would take if the question arose for judicial determination. My own opinion, however, is that the above section must receive a reasonable construction. It does not, nor do the corresponding sections in the other Acts (viz., 5 & 6 Vic, cap. 55, sec. 20, and 16 & 17 Vic, cap. 69, sec 18) in express terms refer to any particular kind of train. The conveyance which is required to be provided by the railway company is to be provided 'at the usual hours of starting,' and no further indication is given by the Acts as to whether the obligation is or is not indiscriminately imposed on the company with reference to eveiy train. It would appear to be both unreasonable and inexpedient for the public that a railway company should be required to carry an undefined consignment of military stores — transmitted say from a store depot to a barrack — without being accompanied by troops, and constituting a single consignment of goods, by a limited mail train running at express speed ; and the same observation seems to apply to the cases of both express and ordinary passenger trains, the diflference being only in the degree of unreasonableness and inexpediency. "The obligation imposed by the said 12th section of the 7 & 8 Vic, cap. 85, can, in my opinion, be legitimately construed to mean an obligation to convey the particular kinds of traffic by trains which are started for the conveyance of such trafl&c at the usual hours of starting such trains respectively. Thus troops, with or without their baggage, should be carried by passenger trains, and stores, unaccompanied by troops and constituting goods simply, should be conveyed by goods trains. This would not violate the language of the section, and would be a reasonable and safe construction of it, and in my opinion it is the construction it ought to receive. "The 18th section of the 16 & 17 Vic, cap. 69, may seem at first sight not to favour this view, but I do not think, on careful examination, that it is opposed to it. The same reason- able construction is equally applicable to this section, and it must be read in connection with the 12th section of the 7 & 8 Vic, cap. 85, which regulates the charges. " William D. Andrews, "51, Lower Leeson Street, Dublin. « 19th January, 1881." GENERAL INDEX. 40 Page Acceptance of Conteact to Oaery. General acceptance 1 Acceptance of goods -without limiting the contract makes a carrier responsihle for a contract to carry to the final desti- nation of the goods as addressed or consigned 14 Where the first carrier, by a special notice, limits or attempts to limit the contract of carriage to his own terminus, although accepting the carriage for the through journey ... 22 Implied special contract — Acceptance Avith an injunction from sender that the goods must he delivered before a particular time for a particular event, as a race meeting, show, or otherwise 37 A railway company's carting agent's carter held to he a com- pany's servant Acceptance of contract when carrier's servants collect goods from sender's premises 41 False declaration of contents of packages to evade payment of the proper tolls— Describing packages containing goods as being empty, or declaring less than the actual weight, to evade payment of the proper tolls— Neglecting to declare "dangerous goods" as such ... •■• ••• ^3 Delivery of goods by senders to an authorised place where carriers accept goods to carry ^ Delivery of goods by senders at an unauthorised place where carrier does not accept goods ^° Kates — Quotation, special, &c. ^^ Acceptance of contract by one carrier from another carrier, goods being in transit Carriers have no right to open packages of goods to ascertain the contents ... ... Where a booking-office keeper (receiving-house) is or is not a carrier's agent An alteration of an address on goods or a consignment note by a carrier's servant requires sender's knowledge and consent A sender of goods is not compelled to use the company's con- signment note with printed conditions thereon when any of such conditions are unjust and unreasonable 58 Acceptance in respect to the liability of collection and delivery, and acting as common carriers beyond and off the railway 59 Dangerous goods Acceptance of passengers' luggage Acceptance of goods later in the evening from one person than another 60 61 559 1110 GENERAL INDEX. Page Acceptance of passengers' luggage 723 Acts of Parliament. Sections — Equality Clause, 17 & 18 Vic, cap. 31, sec. 2 ... 9 „ False declaration of goods— 8 & 9 Vic, cap. 20, sees. 98-99 43 „ Defining a carrier's receiving place — 1 Will. IV., cap. 68, sec. 5 -... 47 „ Equality Clause, 8 & 9 Vic, cap. 20, sec. 90 49 „ Dangerous Goods — 8 Vic, cap. 20, sec. 105 60 „ Carriers' Act — Packages over £10 value — 1 Will. IV., cap. 68, sec 7 78 „ Macliine-made lace — 28 & 29 Vic, cap, 94, sec. 1 ... 82 „ Justice of Peace fixing cai'rier's charges — 3 William and Mary, cap. 12, sec. 24 105 „ Public notice limiting liability illegal — 17 & 18 Vic., cap. 31, sec. 7 156 „ Carrier empowered to make a special contract with his customer, which a Judge subsequently may hold to have been "just and reasonable" — 17 & 18 Vic, cap. 31, sec. 7 148 & 156 „ Limit of money damages for cattle when value is undeclared— 17 & 18 Vic, cap. 31, sec. 7 156 „ Power for company to charge extra when value is declared— 17 & 18 Vic, cap. 31, sec. 7 156 „ Proof of the value of cattle, articles, and goods rests with owner— 17 & 18 Vic, cap. 31, sec. 7 157 „ The special contract note for carriage at "owner's risk " must be signed by owner or his servant who delivers traffic— 17 & 18 Vic, cap. 31, sec. 7 ... 157 „ The Eailway and Canal Act does not affect the Carriers' Act where, if goods are in value over £10, a declara- tion of same is compulsory to enable owner to re- cover anything for their loss — 17 & 18 Vic., cap. 31, sec 7 157 „ Interpleader proceedings— 1 & 2 Will. IV., cap. 58, sec. 1 157 „ „ 23 & 24 Vic, cap, 126, sec. 12 158 „ Carriage partly by sea and partly by land — 31 & 32 Vic, cap. 119, sec. 14 210 „ Relating to the true ownership of goods— 5 & 6 Vic, cap. 39(1842) 227 Act of God— Weather— Delay ••• 305 Accident — Unavoidable delay 305 Accidents to passengers on stations and i)latforms 805 „ to passengers alighting from carriages 826 „ to public at goods stations 851 „ with carriage doors 864 „ between stations — Collisions 885 „ onthelinesof companies other than the contracting company 922 „ Miscellaneous 972 Addresses on goods, Alteration of 58 GENERAL INDEX. 1111 Page Advising arrival of goods ggg „ sender when consignee cannot be found 408 Advice notes— Production a warrant to deliver goods 403 Agreements between railway companies, when wWra vires 1088 Akrests of Persons, Assaults, &c. General 764, SuiJerintending officer or agent of the company can bind the company, having a general agency to act for the company 764 Kailway comimnies are liable for the acts of their servants if the act is in execution of the authority given by the com- pany, or within the scope of the servant's employment ... 7G7 Malicious prosecutions 780 Ejection of passengers from carriage, or in other manner com- mitting assaults ... ... ... ... ... 789 "Where a company's servant exceeds his authority the company are not held bound by his acts 795 Arrival of goods. Advising 389 Articles found in railway carriages 759 Assurance policy on life of person killed — Amount to be deducted from damages recoverable from carrier — Case 664 973 Bad packing of goods, ground for refusal to carry 73 Booking-office keepers — Keceiving-houses 53 Breaking bulk, part delivery 410 Bridge archway — Brick fell out on foot passenger — Company held liable— Case 669 977 Bye-laws — Original need not be produced in Court — Case 406 ... 676 „ Proof of exhibition — Case 406 676 „ Conviction under, publishing 706 Caeeiees' Lien on Goods foe a General Balance. General 570 Kailway companies have not a general lien under the Railway Clauses Act for an unpaid general balance, although they may have such lien by special contract 572 During the period of exercising the lien by detaining tiie goods, no charge can be made for the keeping, i.e., warehouse rent 579 Carrier must make a formal demand for carriage or tolls before being legally warranted in selling goods to satisfy his lien 580 In respect to the carrier's lien for general balance being super- seded by sender's right of stoppage in transitu, 583 Eailway companies' lien on goods for a general balance by virtue of notice or usage '^°* Warehousemen's and wharfingers' lien on goods for a general balance ^^"* The old carriers' lien on goods for the carriage on those par- ticular goods did not include a lien for a general balance .. . C89 "Where a general lien is established by an express agreement, general usage, or mode of dealing •J^'- 1112 GENERAL INDEX. Pafre Carrier's servant cannot bind his master beyond the scope of the servant's duties ]61 Carrier cannot compel sender to pay extra on goods over £10 value unless sender chooses to declare the value 128 Carrier's old right to make qualified acceptance , 18* Carriage — If not paid, carrier can withhold delivery 409 „ can be recovered if goods are not worth the carriage ... 447 „ Prepayment of, cannot be enforced for working home owner's empty coal waggons — Case 754 1077 Carting agent's carter a company's servant 40,137 „ cases 475 Cartage allowances — Undue preference 511 „ J, on packages under 500 lbs 511 „ where railway companies refuse to allow carting agents to perform cartage 535 Cattle Cases. Cattle delayed and injured 981 „ escaping from trucks in transit, and killed or lost ... 1005 „ wrecked and lost at sea ... 1009 „ killed or injured in transit 1013 ,, killed on railway crossings and stations 1021 „ Miscellaneous 1029 Cattle — To feed on journey — Company not liable 192 „ injured — Accidents on platfoi-ms ... 19S „ injured from fear, restiveness, or inherent vice ... ... 213 „ taken on — Goods delayed — Preference 304 „ being sent to livery when unclaimed ... 431 „ drovers travelling on free passes 874 „ What constitutes delivery to carrier — Case 718 1030 „ with infectious disease — Company can refuse to carry — Case 719 1031 „ delayed — Company's servant's admission of the delay not binding as against company — Case 720 1031 „ died in company's pens after unloading— Company held not liable— Case 723 1035 „ killed in company's yard after being unloaded— Company held liable— Case 728 1039 „ injured by whitewash used in disinfecting waggons — Com- pany held liable— Case 729 1040 „ Livery charge— Cases 752 and 734 1047,1071 Cabs denied admittance into station yards 543 Child injured — Although no fare Avas paid, company held liable for damages — Case 668 976 Cloak-room — Deijosits of luggage — Held as warehousemen 474 „ cases 708 Closing station gates at a fixed hour — Receipt of goods 559 Clerk — Eetention of comj)any's cash for liquidation of salary due —Case 755 1078 Common carriers, Liability of ... ... 142 „ may carry only to certain places 62 GENERAL INDEX. 1113 Page Common carriers may carry only certain goods 62 „ "When he is a 142 „ of passengers' luggage 719 Common employment doctrine— Injury to companies' servants ... 945 Companies acting as common carriers beyond and off their railway 59 „ printed consignment note, compulsory use of 553 „ servants injured by accidents 945 Completion of contract 372,449 462 Commercial traveller injured — His master cannot sue for loss of his services — Case 667 ... 976 Collection of goods from sender's premises 41, 129 Consignment notes, Carriers cannot] comx^el use of o"\vn ... ,,. 58 „ Carrier's printed form, compulsory use of ... 553 Conveniences — When absent, ground for refusal to carry 67 Contract of carriage partly by sea and partly by land.. 136, 210 „ imperfectly comx)leted — Power to sue 439 „ of carriage cannot be completed if the goods are entirely destroyed and there are none to deliver .. , 449 Constructive delivery 259,376 Consignee can counter-order or re-consign goods at any part of the journey 261 „ can change place of delivery 411 „ As to suing ... ... ... 660 Consuming of smoke — Locomotives being required to 607 Convictions of passengers under bye-laws. Publishing 706 Counter-ordering goods 261 Coal rates — Undue preference 481 Crank pins breaking — Accidents 878 Damage and Loss of Goods. Damage and loss where a special contract is in question ... 308 Damage by leakage "^^o „ from deterioration or natural vice 329 „ Miscellaneous... 332 „ and loss of goods by fire while in carrier's charge during the period of transit 337 by wet ... ... ••. .•• ... ••• ••• ••• "4t> „ from absence of packing and insufficient packing ... 351 Loss by theft 352 Damage by rats and mice 354 Measure of damages or market value 35a Damage in respect to special contract ^88 Damages for delay to goods "'y „ too remote "'^ Damage, The amount of, cannot be deducted from carriage 445 „ Goods entirely destroyed ••• "j^y Damages on warehoused goods 471 Dangerous goods not so described '*'-'• ^^ 1114 GENEKAL INDEX. Page Delivery of Goons. General 372 What constitutes a tender or delivery of the goods to consignee — Constnictive delivery 376 Place where delivery should he made — House, warehouse, or wharf 379 Carrier's liability in respect of advising the arrival of goods when he does not deliver to consignee's premises 389 If a carrier deliver goods to a wrong person, he can recover value of same from such person... 391 "Whether the carrier has fully done his duty in making delivery is a question for a Jury 393 When goods ai-e refused by consignee, the carrier is not by law required to advise the sender of such refusal 393 Goods tendered to consignee and refused 397 Where goods "under bond "are consigned to a customs ware- house, and likewise to a particular consignee 400 Production of carrier's advice note (although fraudulently obtained) a warrant to carrier to deliver the goods 403 Carrier can deliver goods to real OAvner though he be neither consignee nor sender ... 405 What constitutes proof by consignee of not having received the goods 407 When the consignee cannot be found the carrier must advise the sender 408 Carrier can refuse to deliver the goods until the carriage is paid by consignee at time of delivei-y 409 In respect to delivery of part of the consignment (breaking bulk) constituting a delivery of the whole 410 A penny stamp must be afifixed to any order transferring goods from one consignee to another; the absence of such stamp, however, does not make the transfer of the goods illegal ... 410 Where consignee controls the place of delivery, and where he alters, by special order and usage, sender's consignment as to place of delivery 411 Whether delay in carriage, and what amount of delay, constitutes a ground for refusal of the goods and a right to recover the value from the carrier 414 Consignee's carter's signature taken for goods before such goods had been shown to him or put at his disposal, or actually delivered 416 Delivery of goods "to order"— Legal conversion of goods by carrier owing to wrong delivery 417 Carting agent's carter held to be the company's servant, and the company held responsible for his theft of goods which were undeclared and over £10 in value 428 Goods addressed or consigned "Till called for " 429 When delivery is made by one carrier to another carrier ... 429 GENERAL INDEX. 1115 Page Deliveey of Goods — continued. If the owners of cattle or liorses do not take them on arrival, the company are justified in sending them to livery at owner's expense 431 Delivery of cattle to consignees 432 „ of passengers' luggage 434 Eefused goods — Whether damage or delay constitutes a ground for the complete refusal of the goods and a right to sue for and recover their full value from the carrier 436 A person can, in some cases, sue on an imperfectly completed contract, and recover to the value of his work done ... 439 Amount of damage to goods could not be deducted from the carriage 415 The carrier can sue for his carriage, and is not confined to his lien, where the goods are not value for the caiTiage (i.e., empty packages) 447 If the goods are entirely destroyed and there are none to deliver, the contract cannot be completed 449 Refused goods — "Where the questions of theft and depreciation in value arose 453 Delivery, Constructive 259 ,, refused without charges being paid — Goods prepaid ... 300 of goods, Actual, question for Jury .. 393 by one carrier to another carrier 429 of passengers' luggage ' ••• 732 of goods to carrier by sender 47,48 to a wrong person not protected by Carriers' Act, 1830 .. 108 to a wrong person not covered by special contract 209 Demurrage, Eefusal to pay, ground to stop carrying 70 „ Eecovery of— Case 756 1079 Description and quality of goods to be described by sender 77 Deterioration, Damage from 329 Depreciation of value of goods — Eefusal 453 Declaration OF Value AND Caeeiees' Act 78 Articles held to be included in Carriers' Act 79 „ held woJ to be included in Carriers' Act 79 If goods are lost (when undeclared), and felony of carrier's servants is alleged, it must be proved to enable the owner to recover Where no declaration is made of the value being over £10, or in the old carriers' time over dB5 ^02 Since the Carriers' Act of 1830 the carrier cannot be held respon- sible for loss on the ground of gross negligence in respect to articles specified in the Act and undeclared Exhibition of notice at carrier's receiving place ... 114 Where the goods are overcarried or sent the wrong route, and damaged or lost Where there is fraud on the part of sender in concealing the value enclosed in the packages 88 02 108 114 118 122 1116 GENERAL INDEX. Page Declaration op Yalue and Carriers' Act — continued. Where sender's invoice x^i'ice of the goods was over £10, hut the discount allowed hy sender brought the actual cash pay- ment by consignee under £10 ^23 Declaration of value omitted — The goods temporarily lost, but subsequently recovered 124 Determining whether articles come Avithin the Carriers' Act rests with the Jury as a matter of fact 126 When the value is not declared, and it is over £10, the owner cannot recover up to £10, nor, in fact, any amount 128 When the increased value of the goods is within the knowledge of the carrier, and still the sender refuses to pay the extra charge 12S Where acceptance to carry is by a carter with a collecting cart at sender's place of business 12^ If the value is declared, but no extra charge is made nor de- manded, then the carrier is liable for the loss 131 If the primary object of an article is ornament, then it is a trinket 133 Formal declaration not necessary 133 Where the character of the goods is visible and to be seen, but the value not declared 134 Carriers' Act — "Where the carriage of the goods is partly by land and partly by water 13S Horses declared as only £10 value to obtain cheaper carriage, whereas they were of greater value — The carrier, if he knows the value of the horse, cannot charge insurance on that value unless sender makes the declaration of it 137 Carting agent's carter held to be the company's servant, and the company held responsible for his theft of goods over £10 value undeclared 137 Act of declaration of value over £10 to originate with sender ... 13^ Declaration of value not necessary to be formal 133 „ „ where the character of the goods is visible ... 134 „ „ to originate with sender 139 „ „ in relation to special contract 196 Delay to Goods. Eecovery of damages — Prospective profit— Damages too remote — Measure of damages 270 Delay and loss of market where no special contract was signed 282 Carrier is bound to carry in reasonable time and in usual course 292 Delay resulting from the carrier refusing to deliver and de- manding charges that had been already paid at sending station 300 Reasonable time a question of fact for the Jury 301 Delay where the carrier had undertaken to convey within a particular time, or in time for a particular event 302 Delay to travellers' patterns 302 GENEEAL INDEX. 1117 Page Delay to Goods — continued. Delay to goods traffic owing to a preference being given to waggons containing live stock 304 Delay and damage resulting from act of God (state of the weather) or unavoidable accident 305 Delay of goods by overcarriage or wrong route when within Carriers' Act Ij^g Delay — "Whether it constitutes a ground for refusal of goods ... 414 Delays to passengers 674,680,687 Disinfecting cattle waggons— Unlawful to make any charge — Case 724 1 036 Discovery of documents as a right... , 659 Discount on invoice price does not bring the true value of goods below £10 123 Director's word will not bind Company except given at a board meeting — Case 753 107G Dogs — Fear, restiveness, and inherent vice 213 Drovers' passes, accompanying cattle or otherwise 208 Dual terms in a special contract I93 Ejection of passengers from carriages 789 Empty packages. Packages of goods falsely described as 43 Excess fares G95 Excursion passengers carrying luggage 746 Exceptions to Carriers' Liability. Common carriers can only be held liable to carry to such places as they may hold themselves out to be common carriers to and from, and only to carry such kinds of goods as they profess to carry ... 62 Common carriers cannot refuse to carr}' in a general sense ... GG Common carriers can refuse to carry when they have no con- venience ... 67 Common carriers can refuse to carry unl6ss the carriage is prepaid 68 Common carriers can relinquish carrying to certain points or carrying certain goods 70 A railway comi)any can refuse to carry coal in truck-loads if tlie merchants will not pay demurrage on detaining tlie trucks 70 Exceptional cases where common carriers may or may not refuse to carry goods ... ... ... ... ... ... ... 70 Common carriers can refuse to carry when tliey caniKjt carry the particular goods with security 71 Common carriers can refuse to carry passengers if tlicy do not ordinarily carry passengers, and can refuse to carry traffic of a particular class if they do not ordinarily carry it nor profess to carry same 72 Common carriers can refuse to carry if the goods ai-o teiidured at an unreasonable time 72 Common carriers can refuse to carry goods badly packed and unfit to stand the journey 73 1118 GENEEAL INDEX. Page Exceptions to Carriers' Liability— confimtecZ. Common carriers can refuse to carry if trader refuses to pay a reasonable charge, but the carrier cannot maintain the refusal if the charge should be held to be unreasonable ... 75 Kefusal of dangerous goods 76 Common carriers refusing to carry if sender, upon demand, refuses to describe the quality and value of the goods ... 77 False declaration of goods by senders 43 Fares, Passenger — Inequality — Undue preference 543 „ „ need not be uniform — Case 404 675 „ As to charging fraction of a mile as one mile — Case 364 ... 612 „ Season tickets, fares need not be uniform — Case 405 ... 676 „ Payment from starting place of train in case of lost ticket 696 Felony of carriers' servants of goods undeclared in value when over £10 88 Fire and Sparks from Engines. Tire and sparks from engines burning and damaging property adjacent to railways 600 Locomotive engines being required to consume their OAvn smoke 607 Actions against railway companies on the ground of nuisance, s]oarks, vibrations, &c.... 608 Fire, in respect to special contract 183 „ Damage by, during transit of goods 337 „ Damage to goods when held by carrier as a warehouseman ... 467 Formal demand of carriage before selling goods 580 Eraud by sender in concealing value of goods when over £10 ... 122 Fraudulent representation when making a compromise with an injured person vitiates the settlement — Case 673 979 Free passes, Persons travelling on, when injured by an accident ... 874 General ledger balance — Lien on goods 465 J, balance. Lien on goods for 570 Goods on Hand. "Warehouseman's liability .in general 458 "Where the carrier's liability ends and that of Avarehouseman commences ... ... ... "Warehousemen and wharfingers have ordinarily (by custom) a lien upon goods for a general balance 465 "Warehouseman's responsibility in respect to accidental fire destroying the goods, damage by rats and mice, and leakage 467 "Where a tender of the goods had been made and they were brought back to carrier's warehouse, yet he was held liable as a carrier Measure of damages for goods lost or misdelivered by a ware- houseman 471 Consignee advised of goods being on hand and held under ware- houseman's liability at owner's risk 472 The warehouseman is not an insurer ; he receives goods on a special contract made between himself and his customers... 472 Cloak-room— Deposits of luggage 474 462 470 GENERAL INDEX. 1119 Pago Goods « to order "—Transfer order must be stamped 410, 417 „ on hand, warehoused 458 „ cannot be warehoused at owner's risk 472 „ rates — Undue preference 504 „ carried as passengers' luggage 738 Government duty. Booking company liable for — Case 762 108G „ forage carted by railway company exempt from turn- pike tolls 1092 „ duty chargeable on 5 per cent, added to fares to cover such duty, also on fees received on sleeping cars ... 1099 Gratuitous carriers, Liability of 153 Horses declared under £10 value when worth more 137 Horses injured — Accidents on platforms 193 „ from fear, restiveness, or inherent vice 213 Horses being sent to livery when unclaimed 431 Horses over £50 value— Company can only charge insurance on the value sender chooses to declare — Case 751 1070 „ Company can recover livery charges when consignee does not meet horse on arrival — Case 752 1071 House, Delivery to 379 House duty chargeable on station houses 1099 Horse Cases. Horses delayed and injured 1042 „ killed and injured in transit 1047 „ killed on railway crossings and stations 10G2 „ Miscellaneous 1069 niegitimate child— No compensation recoverable in case of accident —Case 666 976 Inherent vice of horses, cattle, or dogs 213 Injured' passenger aggravating his injury by doing his business — Company liable — Case 665 974 Income tax— Companies cannot be assessed for servants at weekly wages 10!)0 Jury to determine if goods come within Carriers' Act 12C Just and reasonable conditions— Special contracts I'M) Jury to be told as to special contract 212 Judicature Act— Joining issues 'ISS Kent's Commentaries, extract, vol. 2, page 791 10 Leakage, in respect to special contract 188 „ Damage by 325,467 Ledger account balance unpaid— Lien on goods 570 7(10 Left luggage cases "^° Level crossing accidents J'"^ Lien, Carrier's, for carriage, versus sender's stoppage in transiiit ... 263 1120 GENERAL INDEX. Pago Lien on goods for general balance. Warehouseman's 465 » » j> ,, Carrier's 570 ,, Supposed, for general balance under Eailway Clauses Act ... 572 „ "While exercising, cannot charge warehouse rent 579 „ superseded by sender's right of stoppage in transtfd 583 „ by virtue of carrier's public notices 584 „ Old carriers', never covered general balance ... 589 „ upon goods for cari'iage on same goods 589 „ Undercharge on three pigs over half a waggon does not warrant detention of whole waggon of pigs — Case 721 1032 Live stock taken on, goods shunted off — Preference ... ... ... 304 Livery charge for cattle can be recovered by company when con- signee does not attend on the arrival of the cattle — Case 752 ... 1071 Loss of goods, but subsequent recovery — Carriers' Act 124 Loss of market — Special contract 163 „ „ where no special contract was signed 282 „ of goods — Special contract 308 „ of trade suffered by a person injured — Compensation can be recovered — Case 672 978 Lost goods, when over £10 value and undeclared 88 Lost luggage 723,732 Luggage, Passenger's, held to be merchandise ... 738 „ carried by excursion passengers ... 746 ,, lost in transit to foreign countries 748 „ lost at junctions and joint stations 756 ,, Servant's, lost, servant's master paying fare 758 „ stolen out of railway carriage 760 Market value — Measure of damages 355 Managers can legally bind companies by their acts 764 Malicious prosecutions ... 780 „ injury to rolling stock recoverable from Grand Jury ... 1095 Mail guai'd and mails — Company not liable to carry as an ordinary passenger 1]01 Measure of damages — Delay to goods 270 „ „ Market value 355 Medical attendance being authorised by companies' servants ... 935 „ officer may on a Court order examine an injured person on behalf of company — Case 670 977 „ officer inspecting an injured passenger ; his report to com- panj- is confidential, and plaintiff cannot obtain authority to see it — Case 671 978 „ attendance on injured persons recoverable from company — Case 672 978 Mice and rats. Damage by 354. Mineral rates — Undue preference 481 Miscellaneous cases ... ... 1074 Military baggage, and conditions under Avhicli railway companies must carry ... 3102 Money (purse) found in railway carriage 759 GENERAL INDEX. 1121 Page Natural vice, Damage from 329 Negligence not chargeable against a carrier in respect to goods within Carriers' Act when undeclared 108 Negligence in respect to special contracts I79 Notices, Carriers', exhibition of II4 Notice exhibited will not establish a special contract 189 Non-receipt of goods by consignee, Proof of 407 Nuisance — Sparks and vibration 608 „ Manure siding IO99 J, Water dropping from archwaj' of a bridge 1100 Obstructing engines, carriages, and signals 678 Obstructions placed on unopened railways 1100 Omnibuses denied admittance into station yards 543 Onus of proof in relation to special contracts 193 Opening packages — Carrier has no right to 53 Option of two rates — Special contract 174 Ornament, When primary object of trinket is 133 Owner's risk on sender's note — No formal contract signed 213 Owner, when real owner, can claim goods though he be neither consignee or sender 405 Owner's waggons breaking down, and goods or coal lost— Company not liable 1093 O^vners using their own locomotives cannot compel company to afford use of signals 109G Passengers' Delays axd Tickets. General 674 Obstructing engines, carriages (trains), and meddling with signals 678 Passengers delayed on journeys, and carrier held liable 680 Showing tickets, ordinary and season 685 Passengers delayed on journeys, and carrier held Tiot liable ... 687 Passengers travelling in a higher class carriage than warranted by their tickets 692 Excess fares ^'^^ Payment of fare from starting place of train when passenger is unable to produce a ticket Season tickets, and conditions relating thereto 702 Passengers booking and thereby contracting to go to one station, and wilfully leaving the train at an intermediate station to evade payment of the proper fare ... 703 Publishing convictions of offences under bye-laws 706 Passengers' luggage, Acceptance of 01 When a carrier may refuse to carry 72 luggage. Delivery of "^Sl fares— Inequality— Undue preference 513,675 leaving trains in motion— Case 400 67G tickets, Sale of— Case 407 677 leavine trains at intermediate stations— Case 433 ... 704 ejected from carnages -^ 'c=* 69G 1122 GENERAL INDEX. Page Passengers' Luggage. General 719 Bailway companies are common carriers of passengers' luggage, and within section 7 of Railway and Canal Act, by land and sea 719 Departure — Luggage lost off platforms at commencement of journey, when the question of acceptance by company arises 723 Arrival — Luggage lost off platforms at end of journey, when the question of a legal delivery arises 732 Articles carried by passengers as luggage held to be merchan- dise, and the company held not liable for their loss 738 Luggage carried by a passenger travelling on an excursion ticket and lost 746 Luggage lost on the journey betAveen England and France, or other foi'eign countries 748 Luggage lost at junctions and joint stations during transference from one company to another company 75G In respect to the right of suing for lost luggage belonging to a servant when his master travelled with him and paid his (servant's) fare 758 Articles found in a railway carriage belong to the finder in the absence of the rightful owner claiming them 759 Articles of luggage lost or stolen out of carriages 7C0 Parliamentary tolls — Goods and passengers 611 Packed pai-cels — Undue preference 558,625 Packing of goods, Bad, ground for refusal to carry ... 73 „ Absence of or insuflficient 351 Pessonal Injuky. To passengers on stations and station platforms ... 805 To passengers alighting from carriages 826 To public at goods stations, cranes, engine ash-ioits, shunting, &c. 851 To passengers in connection with carriage doors 864 To cattle drovers and other persons when travelling on free passes 874 To passengers from accidents to trains arising from defects in wheels, tires, crank pins, &c 878 Arising from accidents between stations — Collisions, &c. — Negli- gence... 885 Arising from accidents at level crossings 901 Where a railway company issues a through ticket, and a through contract is thereby made, and the contracting company is or is not responsible for personal injury to passengers on the railways of other companies 922 Actions where passengers, after accepting compensation for personal injury, sue for further compensation 929 Bailway companies' servants authorising medical or other expenses in connection with persons injured by railway accidents ... ... ... ... ... ... ... ... 935 Resulting in death, where the survivors can and cannot recover compensation 938 GENERAL INDEX. 1123 Page Personal Injury — continued. To companies' servants— Doctrine of common employment- Employers' Liability Act (neAv Act, 1880) 915 Miscellaneous 972 Place where delivery should be made — House, warehouse, or wharf 379 Poor rates, What constitutes gross receipts liable for ... .„. ... 1089 Prepayment of carriage can be required 68 Prospective profit — Delay to goods 270 Privileged reports of accidents by companies' servants 659 Published conditions of carriage, Carrier's servant cannot alter ... 161 Publishing convictions under bye-laws 706 Eates —Quotation 49 Bace meetings and shows, Goods for 37 Eats and mice, Damage by 467,354. Eeceiving-houses 53 Kefusal to carry by a common carrier 71, 66, 67 Eeasonable charge offered bj' sender — Cai'rier must carry 75 Eestiveness of horses and cattle ... ... ... ... 213 Ee-consigning of goods intermediately by consignee ... ••• ... 261 Eeascnable time, Carrier bound to carry in 301,292 Eefusal to deliver without charges — Goods prepaid 300 Eecovery of value of goods wrongly delivered 391 Eefusal of goods tendered 453,357 „ „ from damage or delay 436 Eefusal of traf3flc by company for want of waggons to convey it ... 1093 Eolling stock hired by one railway company to another railway company ... ... ... ■■• ... 1097 Safe vehicles, Carrier liable to supply 158 Safely and securely, To carry, in respect to special contracts ... 198 Securely to carry, When unable, ground for refusal to carry ... 71 Sender refusing to pay extra charge for goods over £10 value ... 128 „ as to suing ... ... ... ••• ••• ••• ••• ••• ""*^ Sender's man unable to read conditions of special contract I(i9 „ „ signing special contract without reading it 1G9 Selling goods— Formal applications must be first made for charges 580 Season tickets — Conditions of issue 702 Servants' acts— When binding and when not binding on company... 767 „ exceeding their authority— Company not bound 795 Shows and race meetings. Goods for ^7 Shareholder of company on a Jury docs not invalidate a verdict —Case 758 '^'^^ Ship wrecked in railway company's tidal basin of dock— Case 759 ... 1081 Sidings, Trader's own— Terminal allowances 563 „ to traders' works cannot 1)e arbitrarily closed— Case 761 ... 1083 Signing for goods before the act of delivery 4,16 Signals, Obstructing or interfering with •• G78 Slate rates — Undue preference *^1 1124 GENEEAL INDEX. Page Smoke, Locomotives being required to consume ... 607 Special Contract 156 Carriers' liability in respect to supplying safe vehicles fit for the conveyance ••• 158 Carriers' servants cannot alter their employers' published con- ditions of carriage, nor bind their employers beyond the scope of their ofificial duties 161 Special conditions Avhere a delay or loss of market arises ... 163 Where sender or his man does not read conditions, but has an opportunity of doing so, or where he cannot read, or where he signs without reading conditions ... ... ... ... 169 "Wilful misconduct " condition in the special contract note ... 171 Special contract where sender had or should have had the option of two rates, the higher at company's risk (common carrier) and lower at owner's risk — A carrier cannot force a special contract on his customer 174 Special contracts in respect to negligence, gross or culpable ... 179 Where the carrier by a special agreement limits his liability in case of fii'e and the destruction of the goods during transit 183 The old right of common carriers making qualified acceptances to carry (special conti-acts), and which is now modified, as far as railway and canal carriers are concerned, by 17 & 18 Vic., cap. 31, sec. 7 185 Special contracts or notices in respect to damage by leakage ... 188 Limitation of time for claims to be made after delivery of goods 188 A notice exhibited will not establish a special contract; the special contract must be signed, and the substance of the contract brought home to the person signing 189 The carrier is not responsible to feed cattle on the journey ... 192 If it be shown that there are two sets of terms in the course of dealing with a cai-rier, the law accepts the one least favour- able to the carrier 193 Cattle platform accidents, where cattle or horses are injured in loading or unloading, or immediately after being unloaded 193 Onus of proof 193 Declaration or absence of declaration as to value 196 In respect to a special carrier, when carrying under a special contract, being required to carry " safely and securely " ... 198 What have been held to be "just and reasonable " conditions, under the Act of 1854, for a carrier to make on agreeing with his customer to accept a lower rate when relieved of insurance liability 199 What have been held to be "unjust and unreasonable " con- ditions, under the Act of 1854, for a carrier to make on agreeing with his customer to accept a lower rate when relieved of insurance liability 203 Where drovers' jiass^s were issued for drovers to accompany cattle, but the drovers did not accompany the cattle, and the company were held not liable for errors, damages, or losses " ... 208 GENERAL INDEX. 1125 Special Conteact— cowiiwitetZ. A special contract does not exempt a carrier from liability when he tlelivers the goods to a wrong consignee 209 Where the carriage is partly by sea and partly by land 210 Jury to be told as to special contract 212 "Where the words « Owner's risk " are inserted on sender's con- signment note, and no regular form of contract document passes between carrier and sender 213 Horses, cattle, or dogs lost or injured from fear, restiveness, or inherent vice 213 Special carrier, Liability of a 148 „ „ When he is a ^ 148 ,, contracts must be signed to be legal 189 Sparks from engines causing fires 600 Stoppage in trans ir> Suing, whether sender or consignee fi^O Superintending officer can legally bind company 764 1126 GENERAL INDEX. Page Taking signatui-es for goods before the act of delivery 416 Tender of goods at an unreasonable time, ground for refusal to carry 72 „ „ "Wliat constitutes a 376,470 „ ,, for delivery 397 Terminal allowances to traders with sidings 563 Theft, Loss by 352,453 Through contract, where a second company (not the contracting company) can be sued by a father for loss of services of his son arising from an accident — Case 674 980 „ contracts of carriage 14,22 „ tickets, Issue of, not compulsory where two lines are not continuous— Cases 757 and 779 1080, 1100 " tickets, issue compulsory where two companies have two stations together with rails connecting 1101 Time — Limitation as to making claims — Special contract .. ... 188 "Till called for," Goods 429 Tickets, Passenger 674 , Showing ordinary and season ... 685 J, Season, conditions of issue ... 702 Tires breaking — Accidents 878 Tolls, Selling goods for ... 580 „ Parliamentary 611 Trinket, when primarj- object is ornament 133 Transifws, when still in course 231 „ when at an end 247 Travellers' patterns, Delay to 302 Trains, Obstructing 678 Undue Preference. General 475 In respect to rates for carriage of coal, slates, and minerals ... 481 In respect to rates for carriage of goods 504 Cartage allowances in respect to the collection and delivery of goods (small packages under 500 lbs.) and parcels 511 Kailway companies performing cartage and refusing to allow carting agents (carriers) to perform such service 535 Admittance of omnibuses and cabs into station yax'ds 543 Inequality of passenger fares 543 Compulsory use of the railway companies' printed form of consignment note containing conditions of carriage ... 553 In respect to packed parcels 558 Eeceiving goods to forward same night later from one carrier (company's own agent) than from another ... ... ... 559 Terminal allowances in respect to traffic to and from traders' own sidings — Loading, unloading, &c 563 Usual course. Carrier bound to carry in 292 Unreasonable charge demanded by carrier will not support a refusal to carry 75 GENERAL INDEX. 1127 Page Unjust and unreasonable conditions — Special contracts 203 " Under bond," Goods 400 Value of goods declared, but no insurance paid 131 Valuables found in railway carriage '... ... 759 Vice, Inherent, of horses, cattle, or dogs 213 Vice, natural. Damage from, to goods 329 Warehouseman — Carrier cannot convert himself into one for consignee 260 Warehouse, Delivery to consignee's 379 Warehouseman's liability 462,458 „ „ for fire 467 „ not an insurer 472 Warehouse rent cannot be charged on goods held as a lien for carriage 579 Warehouseman's lien on goods for general balance 585 Weight, False declaration of 43 Weighing machines — False weights — Company liable — 5 & 6 Will. IV. 1089 Weather — Act of God — Delay 305 Wet, Damage by 345 « Wilful misconduct " — Special contract 171 Wharf, Delivery to 379 Wharfinger's lien on goods for general balance 585 Wheels breaking — Accidents 873 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 800 083 8 r/eVfyv/^v^. J.Q\J:^yW 'S'v^^ ^..t:^.^^ ^^*«^^m^K 'v^U^vvv^ ^ip|S^ff5^?i%S^ y^\j^^ ^^WW'W^S mmMj ■ 'v*' '^' s^ -• ■-- '1(2- hPi^