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 ( 2 )
 
 A DIGEST 
 
 LAW OF CARRIERS.
 
 A DIGEST 
 
 OF THE 
 
 LAW OF CARRIERS 
 
 OF 
 
 GOODS AND PASSENGEKS 
 BY LAND AND INTERNAL NAVIGATION. 
 
 BY 
 
 WALTER HENRY MACNAMARA, 
 
 in 
 
 <1F THE IXXER TEMPLE, BARRISTER-AT-LAW, 
 
 HEGISTHA1! TO THE nAILWAi' COM.MISSIOX. 
 
 ' ' The Law does not consist of particular cases, but of general principles, which are 
 illustrated and explained by those cases." — Loed Mansfield. 
 
 LONDON : 
 
 STEVENS AND SONS, 119, CHANCERY LANE, 
 
 1S88
 
 M 23Z8<L 
 
 
 LONDON : 
 FEINTED BY C. F. EOWOETH, QEEAT NEW STEEET, FETTEE LANE — E.G.
 
 5i 
 
 ^ PREFACE. 
 
 This work is an attempt to reduce the statute and case 
 law of carriers by land into a code or series of articles. 
 The writer originally intended to confine the articles 
 themselves entirely to principles, and to make a scien- 
 tific treatise on this particular branch of the law of 
 bailments ; but he found that to carry out this principle 
 strictly would be to make the work far less useful to 
 those interested in the law relating to the transit by 
 railway of merchandise and passengers, and therefore it 
 is that many of the articles, though important in them- 
 selves, are only examples of a principle contained in a 
 previous article. To this extent the writer has laid him- 
 self open to the objection of not having given effect to 
 the dictum of Lord Mansfield, set out on the title page 
 of the book. For the same reason, in many of the 
 articles dealing with statutory enactments, the verbatim 
 words of the Act of Parliament are set out instead of 
 the eifect of them. 
 
 Whether this branch of mercantile law is capable of 
 codification is a matter upon which there must be a 
 diversity of opinion. If codification is ever thought 
 feasible or desirable, the writer is ambitious enough to 
 hope that this Digest may afford facilities for that 
 operation. At all events, by throwing the whole law of 
 carriers by land into a systematic form, it enables the 
 law reformer to criticise it as a whole, and to appreciate
 
 vi PREFACE. 
 
 the nature and effect of the amendments which it may 
 require. 
 
 It will be found throughout the book that there are 
 frequent references to decisions in the American Coui*ts. 
 No treatise on the law of carriers would be comj)lete 
 unless it contained references to cases decided in the 
 United States. The enormous distance between the 
 different towns in that country has made this branch 
 of the law one of extreme imjDortance there, and the 
 treatises of Story and Angell on it are held in reverence 
 by lawyers throughout the world. 
 
 The writer hopes a generous allowance will be made 
 for shortcomings, as the branch of law dealt Avith con- 
 tains somewhat intricate questions connected with the 
 receiving and forwarding of traffic, and the equal treat- 
 ment of the public by railway and canal comj^anies. 
 
 The Railway and Canal Traffic Act, 1888, is set out 
 in the Ajjpendix, and noticed in the text. 
 
 The WTiter has not dealt with the i^ractice before the 
 Railway and Canal Commissioners, as the procedure is 
 not yet settled; and he intends hereafter to devote a 
 separate work to the subject. 
 
 The writer desires to acknowledge valuable assistance 
 in revision of the proofs which has been rendered to him 
 by his friend, Mr. Yarborough Anderson, of the North- 
 Eastern Circuit. 
 
 W. H. M. 
 
 November, 1888,
 
 TABLE OF CONTENTS. 
 
 PAOE 
 
 Table of Cases Cited ------- xix 
 
 Table of Abbreviations ------ xxix 
 
 Corrigenda _------ xxxu 
 
 PART I. 
 
 CARRIERS OF GOODS BY LAND GENERALLY. 
 
 CHAPTEE I. 
 
 Caeeiers without Hire 
 
 CHAPTEE II. 
 
 Private Carriers for Hire 
 
 CHAPTEE III. 
 
 Common Carriers - - - - - - -U 
 
 CHAPTEE IV. 
 
 The Obligations of a Common Carrier with reference to the 
 Eeceiving of Goods for Conveyance, and their Delivery 
 
 - 21 
 TO HIM -------- ''^ 
 
 1. The Carrier's Duty to receive Goods - - - - 21 26 
 
 2. The Consignor's Duty ------ -^—29 
 
 3. What is a sufficient Delivery of the Goods - - - 30—33 
 
 4. The Effect of an Acceptance of the Goods - - - 34—38
 
 ym TABLE OF CONTENTS. 
 
 CHAPIEE V. 
 
 PAGE 
 
 The Obligations of a Common Cabeier during the Transit of 
 THE Goods - - - - - - - -40 
 
 CHAPTEE VI. 
 
 The Limitation of the Obligations of a Common Carrier of 
 Goods - - - - - - - -56 
 
 1. By the Carriers' Act, 1830 _ . . - . 56—72 
 
 2. By Special Contract or Notice _ _ _ - 72 — 78 
 
 CHAPTEE VII. 
 
 The Obligations of a Common Carrier with reference to the 
 Delivery of the Goods to the Consignee, and the Termina- 
 tion OF the Carrier's Liability - - - - - 79 
 
 1. The Place where the Goods are to be delivered - - - 79 — 82 
 
 2. Delay in DeHvery - - - - - - 82, 83 
 
 3. The Carrier's Duty on the Arrival of the Goods - - - 83 — 90 
 
 4. Refusal of the Consignee to accept - - - - 90, 91 
 
 5. The Carrier's Liability as a "Warehouseman - - - 92 
 
 CHAPTEE VIII. 
 
 The Eights and Eemedies of Common Carriers of Goods - 93 
 
 1. Special Property in the Goods - - - - - 93 
 
 2. Insurable Interest in the Goods - - - - - - 94 
 
 3. Eeasonable Hii-e for the Carriage of the Goods - - 94 — 96 
 
 4. Eecoveiy of Money paid on Account of the Goods - - - 96 
 
 5. Lien -----__- 97—102 
 
 CHAPTEE IX. 
 
 The Eights and Duties of the Vendor and Vendee of the Goods 
 in Eelation to their Conveyance by a Carrier - - 103 
 
 1. Generally ---___ 103—108 
 
 2. Stoppage in Transitu ---___ 108—114
 
 TABLE OF CONTENTS. 
 
 PAET II. 
 
 CARmERS OF GOODS BY RAILWAY. 
 
 CHAPTEE X. 
 
 PAGE 
 
 The Obligations of a Eailway Compaisty to receive Goods fob, 
 
 Conveyance, and their Delivery to them - - - - 115 
 
 1 . Obligation to carry Goods at all _ - - - 115 122 
 
 2. Goods of a Dangerous Nature - - - - 123—130 
 
 3. When Eefusal to carry justifiable - - - - 130 — 134 
 
 4. Packed Parcels - - - - - " --134 
 
 5. Duty of Consignor as to Goods reqiuring great Care - - 135 
 
 6. Goods imperfectly addi'essed - - - - " " 136 
 
 7. Eight of Company to be informed as to Contents of Package - 137 
 
 8. Eight of Company to be paid before Eeceiving Goods - - - 138 
 
 9. What is a sufficient Delivery to the Eailway Company - - 138 
 
 10. Special Contract ----- 140, 142 
 
 11. Damages for Eefusal or Failure to carry Goods - - 140—142 
 
 12. Booking Offices for Goods off the Eailway - - - - 142 
 
 CHAPTEE XI. 
 
 The Obligations of a Eailway Company during the Transit of 
 the Goods - - - - - - "" ^'^3 
 
 l.—By Statute. 
 
 1. Under Carriers Act, 1830 - - - - - " ^^ 
 
 2. Special Contract under sect. 7 of Eailway and Canal Traffic Act, 
 
 1854 - - - - - - - 144-148 
 
 3. Eeasonable and Unreasonable Conditions - - - 149 162 
 
 4. Alternative Eates and Conditions - - - l-l^ 1^8 
 
 5. Conveyance of Goods partly by Eailway, and partly by Sea, under 
 
 sect. 14 of Eegulation of Eailways Act, 1868, and sect. 12 of 
 Eegulation of Eailways Act, 1871 - - - 162—164 
 
 IL — Generally. 
 
 1 . Insiu-crs of the Goods carried - - - - 165 167 
 
 2. Damage from Accidental Fire - - - - - 167 
 
 3. Damage from Defective Triick - - - - - - 1^^ 
 
 4. Defective Stations and Platforms - - - - - 169 
 
 5. Goods imperfectly packed - - - - --170 
 
 6. Concealment of Value by Consignor - - - - - 171 
 
 7. Waggons of Private Traders - - - - " " ^"^^
 
 X TABLE OF CONTENTS. 
 
 PAGE 
 
 8. Carriage of " Empties " ___--- 172 
 
 9. Goods injured by Excepted Eisks - - - - - 173 
 
 10. Goods carried at " Owner's Eisk " ----- 173 
 
 11. The authorized Servants of a Eailway Company - 175 — 178 
 
 12. Bound by the Contract of their Agent - - - - 178 
 
 13. When Company estopped from setting up the Illegality of their- 
 
 Acts - ' - - - - - - - - 179 
 
 14. Construction of the Special Act of the Company - - - 180 
 
 15. Liability when carrying to a Place -without the Eealm - - - 182 
 
 16. Liability when carrying beyond their own Line - - - 182 
 
 17. Carrying Company liable for Damage to Goods carried - - - 185 
 
 CHAPTEE XII. 
 
 The Obligation's of a Eailway CoMPAinr with respect to the 
 
 DELryERY OF THE GoODS TO THE CONSIGNEE - - - 187 
 
 1. Carrying the Goods by the shortest Eoute - - - - 188 
 
 2. Delivery of the Goods within a reasonable Time - - 189 — 192 
 
 3. Measure of Damages for Delay in Delivery - - 193 — 200 
 
 4. Measure of Damages for Loss or Deterioration of the Goods - 200 
 
 5. Station Master Agent of the Company to deliver Goods - - 202 
 
 6. Countermand of the Place where Goods are to be delivered - - 202 
 
 7. Notice to the Consignee of the Arrival of the Goods - - - 205 
 
 8. Company not bound to make a Personal Delivery of the Goods - 208 
 
 9. Delivery of Goods sent at a Collection and Delivery Eate - 208 — 211 
 
 10. Company bound to keep Goods a reasonable Time for the Consignee 
 
 to claim them in - - - - - - -211 
 
 11. Liability of the Company as to Goods left on their Hands 213 — 219 
 
 12. Duty of the Company on Eefusal of the Consignee to pay the Car- 
 
 riage -------- 
 
 13. Duty of the Consignee to examine the Goods - - - - 221 
 
 14. Consignee assisting Company's Servants in Delivery - - 222 
 
 219 
 
 CHAPTEE Xin. 
 
 The Eates and Charges Payable for the Conveyance of the 
 
 Goods by Eailway ------ 224 
 
 I. — Tolls and Bates. 
 
 1. Power to make reasonable Charges for the Conveyance of Goods 
 
 not exceeding the Maximum Eates - - - - 225 
 
 2. Power to vary the Eates - - - - - - - 229
 
 TABLE OF CONTENTS. xi 
 
 PAGE 
 
 3. How Eates calculated where Eailways amalgamated - - 230 
 
 4. How Eates calculated where two Eailways are worked by one 
 
 Company - - - - - - -" 231 
 
 5. PubHcation of Tolls - - - - - - - 232 
 
 6. Publication of Eates - - - - - - - 233 
 
 7. Eailway Company bound to furnish Particulars of Charges - - 235 
 
 8. Carriage of Through Traffic at Through Tolls and Eates - - 238 
 
 9. Alternative Eates and Special Contract _ - - - 238 
 
 10. Complaints to Board of Trade of unreasonable Charges - - - 239 
 
 11. Jm-isdiction of the Eailway Commissioners over Tolls and Eates - 240 
 
 12. Eecovery of Overcharges ------ 241 
 
 II. — Terminal Services and Charrjes, &c. 
 
 13. Power of Commissioners to fix Temiinal Charges - - - 241 
 
 14. Charges for ' ' Sei^ices incidental to the Duty or Business of a 
 
 Carrier" - - - - - - " "243 
 
 15. Charges for "Loading and Unloading" - _ - - -244 
 
 16. Charges for " Covering" and "providing Covers" - - -245 
 
 17. Charge for Weighing Goods for Consignees - - - - 246 
 
 III. — The Lien of a Railway Company. 
 
 18. Eailway Company as Can-iers have Common Law Lien - - 247 
 
 CHAPTEE XIV. 
 
 The Obligations of a Eailway Company to afford Due and 
 Eeasonable Facilities fob, the Eeceivinq and Forwabd- 
 iNG OF Goods and Passenger Traffic - - - 251 
 
 I. — Generally. 
 
 1. Sect. 2 of the Eailway and Canal Traffic Act, 1854 - - - 252 
 
 2. Public Convenience to be considered - - - - - 254 
 
 3. Interests of Eailway Traffic to be considered - - - 255 
 
 4. Eequii'ements of Special Acts of Eailway Companies - - - 257 
 
 W.—On a Railway Company's own Line under Sect. 2 of the Railway and 
 Canal Traffic Ad, 1854. 
 
 5. Sect. 2 of the Eailway and Canal Traffic Act, 1854 - - - 200 
 
 6. Unauthorized Eates and Fares - - - - --261 
 
 7. Station Accommodation - - - - " -lOo 
 
 8. Train Accommodation - - - - - - - ~i i 
 
 9. Private Siding Accommodation ----- 280 
 
 10. Junction with Private Siding - - - - - - 293 
 
 11. Collection of Traffic - - - - - - "296 
 
 12. Delivery at a particular Station - - - - - - 29<
 
 xii TABLE OF CONTENTS. 
 
 III. — On Through Traffic under Sect. 2 of the Eaihvay and Canal Traffic 
 
 Act, 1854. 
 
 PAGE 
 
 13. Sect. 2 of the EaUway and Canal Traffic Act, 1854 - - - 298 
 
 14. Individual or Public Grievance - - - - - - 302 
 
 15. Continuous Line of Eailway- . _ _ _ 302 — 305 
 
 16. Eunning Powers - - - - - - - 306 
 
 IT. Tlu-ougli Booking - - - - - - - 307 
 
 18. Correspondence of Trains - - - - - - 309 
 
 19. Diversion of Traffic - - - - - - 310 
 
 20. Order requiring two or more Eailway Companies to act jointly - 311 
 
 IV. — Through Rates under Sect. 25 of the Railway and Canal Traffic 
 
 Act, 1888. 
 
 21. Sect. 25 of the Eailway and Canal Traffic Act, 1888 - - - 312 
 
 22. What Eailway Company may apply for - - - - - 318 
 
 23. Eate must be required in Interest of the Public _ _ _ 323 
 
 24. Alternative and Eeasonable Eoute - - - - - 326 
 
 25. Apportionment of Through Eates ----- 328 
 
 26. Eoute by Land and Sea - - - - - - - 328 
 
 CHAPTEE XV. 
 
 The Obligations of a Eailway Company to avoid giving an 
 TJNDUE Pkefeeence - - - - - - - 332 
 
 I. — Statutory Obligations. 
 
 1. " Equality Clause" of the Eailways Clauses Consolidation Act, 1845 
 
 (8 Vict. c. 20, s. 90) - - - - - - 333 
 
 2. Sect. 2 of the Eailway and Canal Traffic Act, 1854 (17 & 18 Vict. 
 
 c. 31), and Sect. 27 of the Eailway and Canal Traffic Act, 1888 
 (51 & 52 Vict. c. 25) - - - - - - - 337 
 
 3. Jurisdiction of Commissioners under Provisions in Special xicts 
 
 relating to Undue Preference (51 & 52 Vict. c. 25, s. 9) - - 342 
 
 4. Undue Preference shown to Goods carried by Sea iu Vessels belonging 
 
 to or worked by a Eailway Company (51 & 52 Vict. c. 25, s. 28) - 343 
 
 5. Equality of Treatment of Passengers where a Eailway Company 
 
 works or uses Steam Vessels (31 & 32 Vict. c. 119, s. 16) - - 343 
 
 6. A Eailway Company may charge Group Eates, pro^^dded they do not 
 
 create an Undue Preference (51 & 52 Vict. c. 25, s. .29) - - 345 
 
 7. Public Aixthoritj-. Dock Companies and Harbour Boards may com- 
 
 plain of Undue Preference (51 & 52 Vict. c. 25, ss. 7, 30) - 347 
 
 8. Commissioners may award Damages under certain Conditions (51 & 
 
 52 Vict. c. 25, s. 13) - - - - - - - 348
 
 TABLE OF CONTENTS. xiii 
 
 n. — Principles ivhich decide whether a Preference is Undue or not. 
 
 r. -r-. 1 T r, • i PAGE 
 
 9. rublic Convenience and Fan- Interests of tlie Railway Company to 
 
 be considered -----__ 349 
 
 10. Preference complained of must be to a Person similarly cii-cum- 
 
 stanced - - - - _ _ __ 349 
 
 11. Inequality of Eates justified by Cost of Conveyance - - 350 
 
 12. Guarantee of Larger Supplies at Eegular Intervals - - - 350 
 
 13. Conveyance for Longer Distance at Less Cost _ _ _ 35]^ 
 
 14. Arrangement with Customer for Employment of other Lines for 
 
 Different Traffic - - - - - _ _ 352 
 
 15. Inequality of Eates not justified by Considerations collateral to the 
 
 Pecuniary Interests of the Company - _ _ _ 352 
 
 16. Inequality of Eates not justified by Competition alone - - - 353 
 
 17. Undue Preference of a Eailway Company by themselves - - 355 
 
 18. Common Carriers must be treated as other Customers - - - 355 
 
 19. Allowance for Cartage where Semce not performed by the Com- 
 
 pany - - - - - . . _ 356 
 
 20. Undue Preference of one Town or District over another - - - 359 
 
 21. Admission of Public Vehicles into Station - _ _ _ 300 
 
 22. Eefusing Credit or Ledger Account to a Trader - - - - 362 
 
 PAET III. 
 
 CARmERS OF ANIMALS BY RAILWAY. 
 
 CHAPTER XVI. 
 
 The Obligations of a Eailway Comp^usty with begaed to the 
 
 CONVEYAKCE OF AnIM^ILS -----_ 364 
 
 I. — By Statute. 
 
 1 . Obligation to cai-ry Animals under Sect. 2 of the Eailway and Canal 
 
 Traffic Act, 1854 (17 & 18 Vict. c. 31) - - - - - 365 
 
 2. Limitation of Liability for Loss of or Injury to Animals imder 
 
 Sect. 7 of the Eailway and Canal Traffic Act, 1854 - - 368 
 
 3. Conveyance of Animals partly by Eailway and partly by Sea under 
 
 Sect. 12 of 34 & 35 Vict. c. 78 - - - - - - 372 
 
 4. Limitation of Liability during the Sea Transit imder Sect. 14 of 
 
 31 & 32 Vict. c. 119 - - - - - - 372 
 
 5. Obligation to provide proper Trucks, Horse Boxes, &c., and to 
 
 prevent Overcrowding (41 & 42 Vict. c. 74) - - - - 373 
 
 6. Obligation to cleanse and disinfect Horse Boxes and Cattle Trucks 
 
 (41 & 42 Vict. c. 74) - - - - - - 374 
 
 7. Oliligation to provide Food and Water for Cattle dming Eailway 
 
 Transit (41 & 42 Vict. c. 74) - - - - - 379
 
 xiv TABLE OF CONTENTS. 
 
 II. — Genercdhj. 
 
 PAGE 
 
 S. Their Liability as lusui'ers of Animals - - - - 381 
 
 9. The Delivery of the Animals to the Eailway Company - - - 385 
 
 10. Obligation to provide Trucks reasonably sufficient for Ordinary 
 
 Journey -------- 385 
 
 11. Must carry within a reasonable Time - - - - - 387 
 
 12. Degi-ee of Care requii-ed from the Eailway Company in delivering 
 
 Animals -------- 388 
 
 1 3. Duty to deliver in a fit and proper Place - - - - - 390 
 
 14. Duty of Consignee to remove the Animals on An-ival - - 391 
 
 15. What Company may do if Horse not removed on arrival - - 394 
 
 PAET IV. 
 
 THE CARRIAGE OF PASSENGERS' LUGGAGE BY RAILWAY. 
 
 CHAPTEE XVII. 
 
 The Obligations of a Eailway Company with eefebence to the 
 Conveyance of the Luggage of a Passenger _ - _ 396 
 
 1. Obligation to carry certain Weight of Luggage free of Charge - - 397 
 
 2. Insurers of Passengers' Personal Luggage - - - - 400 
 
 3. What is Personal Luggage - - - - - - 403 
 
 4. Merchandise packed with Personal Luggage _ _ _ 406 
 
 5. Eailway Company may waive their Eights as to Amount allowed 
 
 and natiu-e of Luggage carried - - - - - 407 
 
 6. Liability attaches though Luggage not addi'essed - - - 408 
 
 7. Not bound to take Luggage by Exciu'sion Trains - - - 409 
 
 8. Person sending his Luggage with his Servant _ _ _ 410 
 
 9. Liability for Servant's Luggage when Ticket taken by Master - - 411 
 
 10. Liability as to Luggage placed in the same Carriage with Passenger 411 
 
 11. Commencement of Liability - - - - --414 
 
 12. Liability of Company for Luggage left with a Porter for Custody 
 
 and not for Transit - - - - - -418 
 
 13. Luggage is within the Carriers Act, 1830 - - - - 419 
 
 14. Luggage is within Sect. 7 of the Eailway and Canal Traffic Act, 
 
 1854 - - - - - - - - 420 
 
 15. Liability during Sea Transit - - - - - - 421 
 
 16. Liability where Company imdertake to carry beyond their own 
 
 Lines - - - - - - - - 423 
 
 17. Carrying Company liable for loss, &c. of Luggage carried - - 423 
 
 18. Tennination of Liability ------ 425 
 
 19. Unclaimed Luggage - - - - - - - 427 
 
 20. Deposit in Left Luggage Office or " Cloak Eoom " - - - 428
 
 TABLE OF CONTENTS. xr 
 
 PART V. 
 
 CARRIERS OF PASSENGERS BY RAILWAY. 
 
 CHAPTER XVIII. 
 
 PAGE 
 
 The Obligations of a Railway Company to Provide Trains and 
 Accommodation for Passengers ----- 433 
 
 I. — By Statute. 
 
 1. To carry Passengers (17 & 18 Vict. c. 31, s. 2) - - - 434 
 
 2. Due and Eeasonable Facilities for Passenger Traffic on a Eailway 
 
 Company's own Line (17 & 18 Vict. c. 31, s. 2) - - - 434 
 
 3. Due and Eeasonable Facilities for Through Passenger Traffic (17 & 18 
 
 Vict. c. 31, s. 2) - - - - - - - 436 
 
 4. Through Fares (51 & 52 Vict. c. 25, s. 25) - - - - 437 
 
 5. Undue Preference (17 & 18 Vict. c. 31, s. 2) - - - 438 
 
 6. Conveyance of Military, Naval, Auxiliary, and Police Forces (46 & 
 
 47 Vict. c. 34, s. 6) - - - - - - - -138 
 
 7. Power of Board of Trade or Eailway Commissioners to enforce pro- 
 
 vision of proper Third Class Accommodation and Workmen's 
 Trains (46 & 47 Vict. c. 34, s. 3) - - - - - 441 
 
 8. Trains not to be provided for Prize Fights (31 & 32 Vict. c. 119, 
 
 s. 21) - - - - - - - - - 444 
 
 9. Communication between Passengers and Guard (31 & 32 Vict. c. 119, 
 
 s. 22) __------ 445 
 
 10. Smoking Compartments to be provided (31 & 32 Vict. c. 119, s. 33) 446 
 
 II. — Generally. 
 
 11. As to the duty of a Carrier of Passengers to receive all Persons - - 447 
 
 12. Duty to afford Passengers all reasonable and usual Accommodation 448 
 
 13. Overcrowding of Eailway Carriages - - - - - 450 
 
 14. Contract made with a Passenger by issuing a Ticket - - 452 
 
 15. Piiblication of Time Tables amounts to a Contract that Trains wiU 
 
 run as stated - - - - - - "~ 453 
 
 16. May limit their Liability by notice in the Time Tables - - 455 
 
 17. Liability for delay occasioning Loss of Train run in connection - 455 
 
 18. Damages recoverable for delay of a Passenger through unpunctuality 
 
 of Trains - - - - - - " ' "^^^
 
 xvi TABLE OF CONTENTS. 
 
 CHAPTEE XIX. 
 
 PAGE 
 
 The Obligations of a Eailway Company as to Passenger Fares 
 AND Bye-Laws ------- 463 
 
 I. — Bail way Fares. 
 
 1. Railway Fares chargeable - - - - - - 463 
 
 2. List of Fares to be exMbited (31 & 32 Yict. c. 119, s. 15) - - 464 
 
 3. Penalty for Travelling -with intent to avoid Payment of Fare (8 Yict. 
 
 c. 20, s. 103) ^65 
 
 n. — PMilway Bye-Latfs. 
 
 4. Power to make Eegulations by Bye-Laws _ - - - 467 
 6. Bye-Laws and Eegulations approved by the Board of Trade - - 469 
 
 CHAPTEE XX. 
 
 The Obligations of a E ail way Company as to the Degree of 
 
 Care required in the Conveyance of Passengers - - 484 
 
 I. — Generally. 
 
 1. Not liable as Insurers, but for Negligence only - - - 485 
 
 2. Liability for Injuries producing Death - - - - - 488 
 
 3. Question of whether there was Negligence or not, one for the Jury - 490 
 
 4. Contiibutory Neghgence by Passenger - - - - - 492 
 
 5. Passenger Travelling at his o^vtx Eisk - _ _ 492, 494 
 
 6. Not liable to a Master for Injury to a Servant - - - - 495 
 
 7. Liability where Fare not paid _ _ _ - _ 496 
 
 8. Duty of a EaUway Company to Persons they allow to see Passen- 
 
 gers off by Train - - - - - - - 497 
 
 II. — Evidence of Negligence. 
 
 9. Injuries from Management of Train _ _ - - 498 
 
 10. Invitation to Passenger to abght - - - - - 498 
 
 11. Injuries from Stational AiTangements - _ _ - 500 
 
 III. — Compensation for Injuries. 
 
 12. The Measure of Damages ------ 504 
 
 13. Money received on an Accidental Insurance Policy not to be 
 
 deducted - - - - - - -- 505 
 
 14. Arbitration of Damages ------ 505 
 
 15. Order for Medical Examination of Person Injured - - - 505
 
 TABLE OF CONTENTS. 
 
 PAET VI. 
 
 CARRIERS OF PASSENGERS BY ROAD. 
 
 CHAPTER XXI. 
 
 PAGE 
 
 The Obligatioxs of Careiers of Passexgers by Stage axd 
 
 IlAciasTEY Carriages ------ j07 
 
 I. — Generally. 
 
 1. AVhon Obligation to Receive all Persons demanding to be Carried 
 
 arises __--_--- 508 
 
 2. Obligation to carry Passengers to the End of the Journey - - 508 
 
 3. Obligation to carry without Delay ----- 508 
 
 4. Obligation to use all reasonable Care for Safety of Passengers - 509 
 
 5. Obligation to provide a safe and proper Conveyance - - 511 
 G. Obligation to provide Servants of proper Skill and steady Horses - 511 
 
 7. Obligation to avoid Injury to Foot Passengers - - - - 513 
 
 8. Obligation to carry Luggage - - - - -513 
 
 II. — In the Metropolis. 
 
 9. Cab plying for Hire must carry Passengers - - - - 514 
 
 10. Distance and Pace which Cab may be required to drive - - - 515 
 
 11. Eeasonable Quantity of Luggage to be carried - - - 515 
 
 12. Cab Fares - - - - - - - - 516 
 
 13. Omnibus must carry Passengers, if room, and no reasonable Objec- 
 
 tion to Admission made - - - - - -516 
 
 14. Omnibus Fares - - - - - - --517 
 
 APPENDIX. 
 
 Eailway and Canal Traffic Act, 1854, sects. 1 & 2 - - 519 
 
 Eegulation of Railways Act, 1873 - - - - - 520 
 
 Railway and Canal Traffic Act, 1888 _ . - - 527 
 
 M.
 
 TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 Aberdeen Lime Co., &c. v. Gt. N. 
 
 Scotland Ry. Co 118, ISO, 228 
 
 Acheson v. N. Y. & Cent. Ry. Co. . 191 
 
 Agrell V. L. & N. W. Ry. Co 415 
 
 Aitchison, &c. Ry. Co. r. Ledbetter 169 
 
 Aldridge v. G. W. Hy. Co. . . 149, IGO, 
 
 161, 172, 183 
 
 Alexander v. Greene 10 
 
 V. N. E. Ry. Co 483 
 
 AUday v. G. W. Ry. Co. . . 161, 370, 388 
 
 Allen V. Sewall 15 
 
 Alton V. Midland Ry. Co 495 
 
 Altrincham Union v. Cheshire Lines 
 
 Committee ISO 
 
 American Express Co 17 
 
 Amies v. Stevens 45, 50, 385, 386 
 
 Ansell V. "Waterhouse 11 
 
 Arnold v. Halenbake 13 
 
 Ashenden v. L. & B. Ry. Co 161 
 
 Aspinall v. Pickford 98 
 
 Astey V. Emery 104, 108 
 
 Aston V. Heaven.. 16, 18, 448, 509, 510, 
 
 512 
 Att.-Gen. v. Birm. & Derby June. 
 
 By. Go 336 
 
 Austin V. Manch. Ry. Co 23 
 
 V. G. W. Ry. Co ,,. 496 
 
 Ayles V. S. E. Ry. Co 498 
 
 Ayr Harb. Trustees and P. Barr & 
 
 Co. V. The Glasgow & S. W. Ry. 
 
 Co. and Others 330 
 
 Bailey v. L. C. & D. Ry. Co 236 
 
 Baker v. Louisville, &c. Ry. Co. . . 236 
 Baldwin v. American Express Co. . . 18 
 
 V. L. C. & D. Ry. Co. . . 54, 
 
 135, 166 
 
 PAGE 
 
 Barbour v. S. E. Ry. Co 171 
 
 Barclay j;. Cuculla-y- Gaud 47 
 
 V. Heygena 47 
 
 Barker v. Midland Ry. Co 361 
 
 Barnes v. Marshall 95 
 
 Bamy v. Mid. Ry. Co 474 
 
 Barret v. G. N. Ry. Co. and Mid. 
 
 Ry. Co 255, 302, 309, 349 
 
 Barrow, Kv parte 112 
 
 Bastard v. Bastard 13 
 
 Bates V. Cameron & Co 197 
 
 Batson v. Donovan . . 22, 23, 24, 25, 27, 
 
 30, 201 
 Baxendale and Others v. G. "W. Ry. 
 
 Co. (Bristol Case).. 352 
 
 r. Eastern Counties Ry. 
 
 Co 95 
 
 V. G. E. Ry. Co. . . 66, 79, 
 
 142, 145 
 
 V. G. W. Ry. Co. , .210, 227, 
 
 355, 360 
 
 V. Hart 62, 64, 66 
 
 V. L. & S. W. Ry. Co. . . 356 
 
 ■_ V. N. Devon Ry. Co. . . 355 
 
 Bayliss r. Lintott 495 
 
 Beadell v. E. C. Ry. Co. ..255, 360, 361 
 
 Beauchamp v. Powley 517 
 
 Bock V. Evans 7, 52 
 
 Bockford v. CrutwcU 7, 169 
 
 Beecher tf. G. E. Ry. Co 410 
 
 Beeston Brewery Co. v. Midland Ry. 
 
 Co 280 
 
 Behrens v. G. N. Ry. Co 6t 
 
 Belfast & Ballymena Ry. Co. v. 
 
 Keys 406, 407 
 
 Belfast Cent. Ry. Co. v. Gt. N. Ry. 
 
 Co. (Ireland, No. 3) , 323, 329 
 
 Bell V. Read 50 
 
 V. St. Louis, (Sec. Ry. Co 213 
 
 Bellsdyke Coal Co. v. N. B. Ry. 
 
 Co 350, 352 
 
 Benett v. P. & O. Steamboat Co. . . 12, 
 
 447 
 Berry v. L. C. & D. Ry. Co. . . 237, 244 
 2
 
 TABLE OF CAISES. 
 
 PAGE 
 
 Bentham v. Hoyle 474 
 
 Biggs V. G. E. E,y. Co 483 
 
 Bilbee r. L. B. & S. C. Rv. Co. . . 503 
 Birchgrove Steel Co. v. Mid. Ry.Co. 238 
 
 Bird r. Cromwell 54 
 
 — — V. Gt. N. Ry. Co 498 
 
 Bisset r. Price , 96 
 
 Blake v. G. W. Ry. Co 18 
 
 Blamires v. Lane. & York. Ry. Co. 446 
 
 Blanchard v. Isaacs 32 
 
 Blitz V. Union S.S. Co 1 89 
 
 Blower r. G. W. Ry. Co 165, 381, 
 
 383, 385 
 Blyth V. Binningham Waterworks 
 
 Co 44 
 
 Bodenham r. Bennett 69 
 
 Boehm v. Combe 33 
 
 Bolton V. Lane. & York. Ry. Co. . . 110, 
 
 112 
 
 Bourne v. Gatliffe 81, 84, 206 
 
 Bowm^an r. Hilton 96 
 
 Boys r. Pink 56, 62, 66 
 
 Bradburn r. G. W. Ry. Co 505 
 
 Bradley v. Dunipace 29, 136 
 
 r. Waterliouse 30 
 
 Bradshaw v. Irish North Western 
 
 Ry. Co 215 
 
 Brandt v. Bowlby 201 
 
 Branly v. S. E. Ry. Co 95 
 
 Brass v. Maitland 29 
 
 Bremner v. Williams 511, 512 
 
 Bretherton r. Wood 447 
 
 Briddon v. Gt. N. Ry. Co.. .44, 83, 167, 
 
 191, 387 
 Bridges r. N. L. Ry. Co. . .491, 499, 501 
 
 Brind r. Dale 6, 7, 9, 19, 34, 49 
 
 Bristol & Exeter Ry. Co. r. Collins 182 
 British Empu-e Shipping Co. v. 
 
 Somes 101 
 
 Brooke v. Pickwick 15, 38 
 
 Broughton & Plas Power Coal Co. 
 
 r. G. W. Ry. Co 352 
 
 Brown v. G. E. Ry. Co 474 
 
 ■ V. G. W. Ry. Co.. 116, 232, 261, 
 
 265, 435 
 
 Browne v. Hare 106 
 
 Brunt V. Mid. Ry. Co. . . 58, 59, 60, 62 
 Bruty ;■. G. Trunk Ry. Co. of Canada 405 
 Buckfastleigh, &c. Ry. Co. r. S. 
 
 Dev. Ry. Co 227 
 
 Buckman v. Levi 32, 106 
 
 Buckmaster v. G. E. Ry. Co 458 
 
 Budd r. L. k N. Ry. Co 354 
 
 BuU V. Robison 107 
 
 Buhner r. Bulmer 490 
 
 Bimch t;. G. W. Ry. Co.. 411, 412, 415, 
 
 417, 418 
 
 Burke v. S. E. Ry. Co 183, 493 
 
 Burlington & Missouri, ice. Ry. Co. 
 
 i7. Chicago Liunher Co 212 
 
 PAGE 
 
 BurreU v. North 32, 66 
 
 Bushell, In re 248 
 
 Butcher r. L. & S. W. Ry. Co. . . 412 
 
 Butler V. Heane 64 
 
 r. M. S. & L. Ry. Co. . .470, 471 
 
 Butler V. Woolcott 99 
 
 Butt r. G. W. Ry. Co 60 
 
 Biitterworth v. Brownlow 48, 204 
 
 Cahill r. L. & N. W. Ry. Co. . .406, 408 
 Cahn V. Michigan, &c. Ry. Co. . .85, 213 
 
 Cairns v. Robms 81, 89, 206, 237 
 
 Calcutta Steam Nav. Co. i'. DeMattos 106 
 
 Candy r. Midland Ry. Co 158, 197 
 
 Caledonian Ry. Co., Alexander, 
 
 Campbell & others v. Greenock 
 
 & Wemyss Bay Ry. Co. & others. 330 
 Caledonian Ry. Co. v. Gt. N., N. E. 
 &N.Brit.Ry. 
 
 Co 310 
 
 V. Greenock & 
 
 Wemyss Bay 
 
 Ry. Co 331 
 
 V. Hunter & Co. 136 
 
 V. N. B. Ry. C'.>. 327 
 
 Camden, iS:c. Ry. Co. v. Burke. .45, 168, 
 
 511 
 Campbell r. Caledonian Ry. Co. . . 408 
 Cannon v. Midland Gt. Western Ry. 
 
 Co 502 
 
 Carr v. Lane. & York. Ry. Co. . .23, 25, 
 36, 140, 365, 383 
 
 Case r. Storey 16, 514 
 
 Caterham Ry. Co. v. L. B. & S. 0. 
 
 Ry. Co. and S. E. Ry. Co.. .275, 279, 
 360, 435 
 
 Central Ry. Co. r. Combs 185 
 
 V. Rogers 185 
 
 Central Wales & Carmarthen June. 
 
 Ry. Co. V. G. W. Ry. Co. . .311, 321, 
 
 325 
 Central Wales & Carmarthen June. 
 
 Ry. Co. V. L. & N. W. Ry. Co. . . 310 
 Central Wales & Carmarthen June. 
 
 Rv. Co. and others r. Gt. W. Ry. 
 
 Co., L. & N. W. Ry. Co. and 
 
 others 320 
 
 Central Wales, &c. Ry. Co. v. L. & 
 
 N. W. Ry. Co. and G. W. Ry. 
 
 Co 324, 326 
 
 Chapman r. G. W. Ry. Co 82, 211, 
 
 213, 215 
 Charleston S. B. Co. v. Bason .... 54 
 Chase v. Washington Mutual Ins. 
 
 Co. of Cincinnati 94
 
 TABLE OF CASES. 
 
 zxi 
 
 PAGE 
 
 Chaste r. Westmore 99 
 
 Chatterley Iron Co. v. N. Staff. Ry. 
 
 Co 226 
 
 Chevallier v. Strahan , 17 
 
 Chic. V. Aur. Ry. Co 201 
 
 Chic. & Alton Ry. Co. v. Addizoat. . 427 
 Chic. & East Illinois Ry. Co. r. Pratt 395 
 Chippendale v. Lane. & York. Ry. 
 
 Co 45, 168,366, 386 
 
 Chouteaux r. Leech 54 
 
 Christie r. Grig.ys 1.5, 18, 447, 485, 
 
 509, 511 
 
 Cincinnati Ry. Co. v. Marcus 407 
 
 Citizen Bank v. Nantucket Steam 
 
 Co 34 
 
 City of Dublin Steam Packet Co. v. 
 
 L. & N. W. Ry. Co 344 
 
 Clarke v. Hutchius 106 
 
 Clayton r. Hunt 64 
 
 Clonmel Traders, &c. v. Waterford 
 
 & Lim. Ry. Co 234 
 
 Coates V. Chaplin 108 
 
 Cobban v. Downe 32 
 
 Cobden v. Bolton 73 
 
 Cockle V. S. E. Ry. Co 499 
 
 Coggs V. Bernard. .3, 4, 5, 0, 11, 13, 47 
 
 Cjhen V. S. E. Ry. Co. . . 145, 400, 401, 
 
 410, 420, 422 
 
 Collard r. S. E. Ry. Co. . . 194, 195, 201 
 
 CoUenberg, The Brig 51 
 
 Collins V. B. & Ex. Ry. Co 46, 168, 
 
 184 
 
 Colman v. G. E. Ry. Co 238 
 
 Colpepper v. Good 31 
 
 Converse v. Boston, &c. Ry. Co. . . 205 
 
 Coombs V. Bristol Ry. Co 86, 108 
 
 Cooper, Kv parte 100, 105 
 
 V. L. & S. W. Ry. Co SoG 
 
 Corby r. Hill 497 
 
 Cork Distilleries Co. v. Gt. S. & W. 
 
 Ry. Co. (Ireland) 80, 204 
 
 Cotterill v. Starkey 513 
 
 Coventry v. Gladstone HI, 112 
 
 Covinton v. Willan 46, 62 
 
 Cox v. Gt. E. Ry. Co 378 
 
 v. L. & N. W. Ry. Co 53 
 
 V. Midland Counties Ry. Co. . . 178 
 
 V. Petersen 91 
 
 Coxe V. Heisley 54 
 
 Coxen V. N. E. Ry. Co. ..211, 237, 245 
 
 Crafter v. Met. Ry. Co 501 
 
 Crofts V. Waterhouse 511, 512 
 
 Crouch V. G. N. Ry. Co 75, 77, 140 
 
 V. G. W. Ry. Co.. .91, 102, 184, 
 
 204, 215, 220 
 
 V. L. & N. W. Ry. Co. , . 12, 22, 
 
 26, 27, 48, 63, 75, 137 
 
 Cusack V. Robinson 103 
 
 Cutler V. N. L. Ry. Co 408, 421 
 
 Czech r. G. S. Nav. Co 52 
 
 D. 
 
 Dale r. Hall 34, 46, 47, 48, 50 
 
 D'Anjou V. Beayle 87 
 
 D'Aquila v. Lambert 109 
 
 D'Arc V. L. & N. W. Ry. Co. . . 158, 173 
 
 Dawes r. Peck 103 
 
 Dawson v. M. S. & L. Ry. Co 498 
 
 Davidson v. Gwynne 51 
 
 Davis r. Garrett 69, 79, 80, 188 
 
 V. James 108 
 
 Deakins' Case 93 
 
 Dearden r. Towushend 465 
 
 Denaby Main Colliery Co. v. M. S. 
 
 & L. Ry. Co 337, 347 
 
 Denton v. G. N. Ry. Co 453 
 
 De Rothschild v. Royal Mail Steam 
 
 Packet Co 62 
 
 Dewort r. Loomer 511 
 
 Dibble V. Brown 16, 400 
 
 Dickinson r. Winchester 16 
 
 Dickson v. G. N. Ry. Co 116, 119, 
 
 146, 147, 162, 253, 365, 368, 434 
 Diphwys Casson Slate Co. r. Festi- 
 
 niog Ry. Co 353 
 
 Distington Iron Co. v. L. & N. W. 
 
 Ry. Co. and others 262, 436 
 
 Dixon V. Baldwin 105 
 
 Donohoe v. L. & N. W. Ry. Co. . . 387 
 
 Doolan v. Midland Ry. Co 67, 162, 
 
 164, 179 
 Dover (Corporation of) v. S. E. Ry. 
 
 Co. and L. C. & D. Ry. Co 359 
 
 Dublin & Meath Ry. Co. v. Midland 
 Gt. Western of Ireland Ry. Co. . . 142, 
 278, 298 
 Dublin (Citv of) Steam Packet Co. 
 
 r. L. & N. W. Ry. Co 437, 165 
 
 Dublin Whiskey Distillery Co. v. 
 Midland G. W. of Ireland Co. . . 294 
 
 Dudley v. Smith 485, 508 
 
 Duff V. Budd 7, 35, 84 
 
 V. G. N. Ry. Co 494 
 
 Dunlop V. Lambert 103, 104 
 
 Dutton I'. Solomonson 106 
 
 D wight r. Brewster 16 
 
 Dyson v. L. & N. W. Ry. Co 473 
 
 E. 
 
 East & West Junction Ry. Co. v. 
 
 G. W. Ry. Co 327 
 
 East Tennessee, &c. Ry. Co. r. John- 
 ston 385 
 
 Edwards v. G. W. Ry. Co 228, 359 
 
 V. L. & N. W. Ry. Co. . . 470 
 
 r. Sherratt 23, 30 
 
 Ellis V. Hunt 113 
 
 r. Turner 69
 
 TABLE OF CASES. 
 
 Evershed v. L. & N. W. Ry Co. . . 138, 
 230, 240, 334, 335, 336, 354 
 
 Ewart V. Sweet 50 
 
 Exchange Ins. Co. v. Delaware 
 Canal Co 13 
 
 F. 
 
 Falk, Ex parte 114 
 
 Farmers and Mechanics Bank v. 
 
 Champlain Transportation Co. . . 18 
 
 FaiTant v. Barnes 28, 130 
 
 Farrar i\ Adams 51 
 
 Fay V. Steamer New World .... 7,13 
 
 Fenner r. Buffalo 207 
 
 Field V. Newport, Abergavenny and 
 
 Hereford Ry. Co 248 
 
 Finlay v. N. British Ry. Co 197 
 
 Firth V. N. E. Ry. Co 425 
 
 Fishbourne & Co. f.Mid. Gt. West- 
 em of Ireland Ry. Co. 211 
 
 — — V. Gt. & S. W. Ry. Co. 357 
 
 Fleming v. M. S. & L. Ry. Co 202 
 
 Flowers r. S. E. Ry. Co 59 
 
 Foreman v. Gt. E. Ry. Co 351, 354 
 
 Forward v. Pittard.. 37, 38, 41, 43, 45, 
 
 46, 47 
 Foulkes V. Met. Dist. Ry. Co. . . 186, 486 
 
 ■ V. Met. Ry. Co 425 
 
 Fowles V. Gt. W. Ry. Co 183 
 
 Fragano v. Long 106 
 
 Fuller V. Bradley 13 
 
 V.Talbot 511 
 
 G. 
 
 Gabay v. Lloyd 50 
 
 Gallagher v. Gt. W. Ry. Co 152 
 
 Gallin V. L. & N. W. Ry. Co 494 
 
 Gamett r. Willan 69, 84, 87 
 
 Garside v. Trent Nav. Co 92 
 
 Garton v. B. & Ex. Ry. Co. . . 24, 26, 
 36, 76, 117, 130, 134, 140 
 
 ■ r. Gt. W. Ry. Co 210, 357 
 
 Gashweiler r. Wabash Ry. Co 219 
 
 Gee V. L. & Y. Ry. Co 195 
 
 Gibbon v. Poynton 30 
 
 Gibbons v. United States 10 
 
 Gibson v. Carruthers 109 
 
 Gilbart v. Dale 66 
 
 Gill V. M. S. & L. Ry. Co 50, 166, 
 
 174, 381, 388 
 
 GQlingham v. Walker 466 
 
 Girardot, Flinn & Co. v. Mid. Ry. 
 
 Co 280 
 
 Girdwood r. N. B. Ry. Co 503 
 
 PAGE 
 
 Gisboume v. Hirst 11,17 
 
 Glover v. L. & N. W. Ry. Co. 202, 471 
 Goddard v. L. & S. W. Ry. Co. . . 356, 
 
 357, 362 
 
 Goff «'. CUnkard 14 
 
 r. Gt. N. Ry. Co 175 
 
 Goldney v. Penn. Ry. Co 177 
 
 Goldsmith r. Chicago and Alton 
 
 Ry. Co 184 
 
 Gordon r. G. W. Ry. Co 154, 174, 
 
 394 
 
 — — — - V. Hutchinson 17 
 
 Gosling V. Higgins 87 
 
 Grand Tower, &c. Ry. Co. v. Ull- 
 
 man 37 
 
 Grantham Canal Nav. Co. v. Hall.. 248 
 
 Green v. Hollingsworth 7 
 
 Greenock and Werayss Bav Ry. Co. 
 ■V. Caledonian Ry. Co. . !^320, 321, 323, 
 329, 344 
 Gregory v. West Midland Ry. Co. 147, 
 
 160 
 Greismer v. Lake Shore, &c. Ry. 
 
 Co 190 
 
 Gt. N. Ry. Co. V. Morville . . 36, 73, 140 
 
 V. Shepherd . , 27, 399, 
 
 401, 408 
 
 V. Swaffield..91,98,173, 
 
 212, 395 
 
 (Ireland) v. Belfast 
 
 Central Ry. Co. 323, 
 325 
 Gt. North of Scotland Ry. Co. v. 
 
 Highland Ry. Co 279, 437 
 
 Gt. W. Ry. Co., Ex parte 248 
 
 • V. Bagge 104 
 
 r. Blake 452 
 
 V. Blower 50, 51 
 
 V. Emanuel 428 
 
 V. Goodman 403 
 
 . V. McCarthy 158 
 
 V. Pocock 478 
 
 • r. Severn and Wye 
 
 Ry. Co... 122, 308, 
 328 
 
 r. Sutton 336 
 
 V. Talley 308 
 
 H. 
 
 Hadd V. U. S. Ry. Co 423 
 
 Hadley r. Baxendale 195, 199 
 
 Haigh V. R. Mail S. S. Co. 
 Hales V. L. & N. W. Ry. Co. 
 
 Hall V. Connecticut R. S. Co. 
 V. L. B. &S.C. Ry. Co.. 
 
 490 
 ..79, 80, 
 189, 198 
 .... 611 
 237, 243, 
 245
 
 TABLE OF CASES. 
 
 PAGK 
 
 Hall V. N. E. Ry. Co 494 
 
 Hamlin v. Gt. N. Ry. Co 4G0, 4G1 
 
 Hammans, Foster and others v. 
 G. W. Ry. Co. and others . .304, 310 
 
 Hammond r. Bussey 195 
 
 Handonr. Caledonian Ry. Co. . .430, 431 
 Hardway v. St. Louis, &c. Ry. Co. 428 
 
 Hare v. L. & N. W. Ry. Co 119 
 
 Harris v. Cockermouth, &c. Ry. Co. 352 
 
 V. G. W. Ry. Co 74, 431 
 
 V. L. & S. W. Ry. Co 429 
 
 V. Midland Ry. Co 157 
 
 V. Packwood 25, 95 
 
 Harrison v. L. B. & S. C. Ry. Co. .370, 
 
 383 
 
 Hart V. Baxendale 59, 1 32 
 
 Haslam v. Adams' Express Co 85 
 
 Hastings v. Pepper 53 
 
 Hatcliwell v. Cooke 8 
 
 Hathom v. Ely 92 
 
 Hawcroft «;. G. N. Ry. Co 449 
 
 Hawes & Son r. S. E. Ry. Co 196 
 
 Hawkes v. Smith 51 
 
 Hawkins r. G. W. Ry. Co 386 
 
 Hawley v. Screven 425 
 
 Hayes v. Campbell 139 
 
 Healde v. Carey 179 
 
 Hearn v. L. & S. W. Ry. Co 62 
 
 Hearne v. Garton 123 
 
 Henderson v. L. k N. W. Ry. Co.. 58 
 • V. Stevenson . . 74, 174, 428, 
 
 493 
 
 Hetherington v. N. E. Ry. Co 490 
 
 Heugh r. L. & N. W. Ry. Co. . .91, 212, 
 
 215 
 Hibbard v. N. Y. & Erie Ry. Co. . . 471 
 
 Hickox V. Nangatack Ry. Co 37 
 
 Higginbotham r. Gt. N. Ry. Co. . . 52, 
 
 132, 165 
 
 Hinton v. Debbin 68, 69 
 
 Hobbs V. L. & S. W. Ry. Co. . 141, 460, 
 
 461, 509 
 Hodgman v. "West Midland Ry. Co. 145, 
 
 371 
 Hodkinson v. L. & N. W. Ry. Co. . 419 
 
 Holdemessc v. CoUinson 98 
 
 Holladay v. Kennard 45 
 
 Holland v. Festiuiog Ry. Co 351 
 
 Hollister v. Nowlen 77 
 
 Holmes v. N. E. Ry. Co 222, 223 
 
 Holyhead Local Board r. L. & N.W. 
 
 Ry. Co 255 
 
 Hooper v. L. & N. W. Ry. Co. . 183, 186, 
 
 424, 425 
 
 Horn r. Midland Ry. Co 130, 198 
 
 Houston & Texas Ry. Co. r. Smith, 190, 
 
 191, 279 
 Hozier r. Caledonian Ry. Co. . .360, 435 
 
 Hudson V. Baxendale 90, 213, 221 
 
 V. Midland Ry. Co 404, 405 
 
 PAGE 
 
 Hughes r. G. W. Ry. Co 195 
 
 Hull, Barnsley, &c. Ry. Co. v. York- 
 shire & Dcrby.shire Coal, &c. Co.. 336 
 
 Huntress, The 29 
 
 Hurst V. G. W. Ry. Co 452, 453 
 
 Hutchinson ;'. Guyon 50, 171 
 
 Hyde V. Trent, &c. Nav. Co 17, 35, 
 
 S7, 84, 205 
 
 Ilfracombe Public Conveyance Co. 
 
 V. L. & S. W. Ry. Co 255, 361 
 
 Illinois Central Ry. Co. v. Brelsford 385 
 
 V. Joute. . 162 
 
 Illinois Ry. Co. v. Smyter 35 
 
 Indermaur v. Dames 233, 498 
 
 India Co. v. Pullen 49 
 
 Ingate r. Christie 11, 12, 14, 17, 19 
 
 Innes i: L. B. & L. & S. W. Ry. 
 
 Cos 116, 264,277, 307,435,436 
 
 Ins. Co. V. Ind. & Cin. Ry. Co 46 
 
 International Bridge Co. f . Canada 
 
 S. Ry. Co 227 
 
 Irvine v. Midland Gt. W. of Ireland 
 
 Ry. Co 141 
 
 Israel v. Clark 511 
 
 Jackman v. I. of W. Ry. Co 361 
 
 Jackson r. Tollett 485 
 
 r. Met. Ry. Co 450, 491 
 
 V. Nichol Ill 
 
 V. Rogers 22 
 
 James r. Griffin Ill 
 
 James and others v. Taff Vale & 
 
 G. W. Ry. Cos 300 
 
 Jameson v. Midland Ry. Co 197 
 
 Jarman r. G. W. R. Co 394 
 
 Jeucks V. Coleman 447 
 
 Jennings r. Gt. N. Ry. Co.. 469, 475, 496 
 
 Jcsson V. Solly 96 
 
 Johnson v. Gt. Southern & Western 
 
 Ry. Co 493 
 
 v. Midland Ry. Co 22, 23, 
 
 118, 119, 189 
 Jones v. East. Counties Ry. Co. . . . 435 
 
 V. N. E. Ry. Co 237 
 
 K. 
 
 Kansas Pacific Ry. Co. v. McCann 208 
 Koddie Gordon & Co. v. N. B. Ry. 
 Co 197
 
 TABLE OF CASES. 
 
 PAGE 
 
 Kempson v. G. W. Ry. Co 243, 245 
 
 Kendall v. L. & S. W. Ry. Co. . . IG6, 
 
 381, 382 
 
 Kenrig r. Eggleston 30 
 
 Kent V. Midland Ry. Co 183, 425 
 
 Ker V. Mountain 508 
 
 Kimball v. Rutland Ry. Co 368 
 
 King V. Spurr 510 
 
 Kirby r. G-. W. Ry. Co 161, 371 
 
 Kirkman v. Shawcross 76 
 
 Kirkstall Brewery Co. v. Furness 
 
 Ry. Co 67 
 
 KJTton V. Hildebrand 12 
 
 Kopitoff r. Wilson 169 
 
 PAGE 
 
 L. & N. W. Ry. Co. & G. "W. Ry. 
 
 Co. r. E. Price & Son 246 
 
 Londonderry Port, ifcc. Commis- 
 sioners V. G. N. of Ireland Ry. 
 
 Co. & Others 280 
 
 Long V. Home 511 
 
 Lord r. Midland Rail. Co. ..3, 158, 192 
 Lotspeicli V. Centi-al, &c. Ry. Co. . . 185 
 Lovell V. L. C. & D. Ry. Co.. .415, 416 
 
 Lovett r. Hobbs 31, 35, 447 
 
 Lumpus r. L. G. Omnibus Co 510 
 
 Lyon V. Mells 45, 162 
 
 Lyons v. HUl 90 
 
 L. 
 
 Lake Erie, &c. Ry. Co. v. Oakes . . 185 
 
 Lambert i'. Robinson 98 
 
 Lane. & York. Ry. Co. v. East 
 
 Lane. Ry. Co 230 
 
 Lane. & York. Ry. Co. v. Gidlow . . 231 
 
 f. Greenwood 348 
 
 Lane r. Cotton 15, 20, 21, 24 
 
 Langdon v. Howells 466 
 
 Laveroni v. Drnry 55 
 
 Leach t: S. E. Ry. Co 415 
 
 Le Blanche v. L. k X. W. Ry. Co. 452, 
 
 456, 459, 460, 461 
 
 Le Couteur v. L. & S. W. Ry. Co. . .49, 
 
 59, 72, 401, 414, 421, 427 
 
 Lees r. Lane. & York. Ry. Co 349 
 
 Leeson v. Holt 24, 77 
 
 Leigh V. Smith 31, 35 
 
 Leland v. Chicago, &c. Ry. Co. ... 219 
 
 • r. St. Paul, &c. Ry. Co. ... 185 
 
 Leo V. St. Paid, &c. Ry. Co 185 
 
 Levi V. Lvnn & Boston Ry. Co. . . 17 
 
 Lewis V. L. C. & D. Ry. Co 499 
 
 r. G. W. Ry. C0...148, 150, 151, 
 
 159, 174 
 
 • V. Western Ry. Co 86, 87 
 
 Littlejohn v. Jones 15 
 
 Little Rock Ry. Co. v. Harper & 
 
 Wilson 168 
 
 Liver Alkali Co. v. Johnson .... 14, 20 
 Lloyd v. Limerick & Waterf ord Ry. 
 
 Co 162 
 
 • r. Northampton & Banbury 
 
 Ry. Co 347 
 
 L. k S. W. Ry. Co. v. James .... 72 
 
 r. Myers 227 
 
 ■ — r. Staines Ry. 
 
 Co 260 
 
 L. & N. W. Ry. Co. r. Bartlett 113, 
 
 204, 246 
 • V. Glyu . . 63, 94 
 
 M. 
 
 M'Andrew r. Electric Tele. Co. ... 12 
 Machu v. L. & S. W. Ry. Co. 36, 67, 184 
 
 Mackenzie r. Cox 7 
 
 Macrow i: Gt. W. Ry. Co. . .400, 403, 
 
 405, 406, 407, 419 
 
 McCance v. L. & N. W. Ry. Co. . . 30, 
 
 72, 160, 162, 171, 370 
 
 McCarty v. New York Ry 92 
 
 McCartan v. N. E. Ry. Co. . . .452, 460 
 McCawley r. Furness Ry. Co. . .487,492 
 
 McCoy V. K. & D. M. Ry. Co 384 
 
 McHenry v. Ry. Co 16 
 
 jVfcKean v. Mclyor . . ". 86 
 
 McManus v. Lane. & York. Ry. Co. 22, 
 132, 159, 160, 169, 383 
 
 Macklin r. Waterhouse 27 
 
 McNally v. Lane. & York. Ry. Co. 154 
 
 McQueen v. G. W. Ry. Co 67 
 
 Mane., Sheff. and Line. Ry. Co. r. 
 
 Brown 146, 147, 149 
 
 Marquette, «tc. Ry. Co. r. Kirkwood 185 
 Marriott r. L. & S. W. Ry. Co. 360, 361 
 Marshall v. York, New. & Ber. Ry. 
 
 Co 411, 497 
 
 Martin v. Gt. Indian Pen. Ry.. .23, 399 
 Matthews v. Dublin & Drogheda 
 
 Ry. Co 158 
 
 Maying v. Todd 14 
 
 Mayhew r. Fames 30 
 
 V. Nelson 57 
 
 Menzies v. Caledonian Ry. Co. 209, 357 
 Mercantile Mutual Ins. Co. v. Chase 17 
 Merchants' Despatch Co. r. Bolles.. 138 
 Men-iman v. Hartford & N. H. Ry. 
 
 Co 31 
 
 Metcalfe v. L. B. & S. C. Ry. Co. . 67 
 Met. Dist. Ry. r. Met. Ry. Co. .. 322 
 Metzenberg v. Highland Ry. Co. . . 213 
 
 Middleton, ^.r parte 55 
 
 V. Fowles 16 
 
 Midland Ry. Co. v. Bromley 66, 416 
 
 V. Freeman .... 379
 
 TABLE OF CASES. 
 
 PAGE 
 
 Miles V. Cattle 4 
 
 Millen r. Brasch 62, 71 
 
 Miller i: Steam Nav. Co 46, 94 
 
 MitcheU r. Lane. & York. E,y. Co. 89, 
 
 174, 205 
 
 Moller V. Young 96 
 
 Moore v. Gt. N. Rv. Co 14.5, 156 
 
 V. Wilson /. lOS 
 
 Morrett v. X. E. Ry. Co 70 
 
 Morse v. Shee 27 
 
 Moses V. Boston & Maine Ry. Co... 381 
 Motterham v. Eastern Counties Ry. 469 
 
 Mulliner r. Florence 101 
 
 Munn V. Baker 73 
 
 Munster v. S. E. Ry. Co. . . 131, 132, 
 
 397, 400, 403, 414 
 
 Muschamp v. L. & P. Ry. Co. . .35, 182, 
 
 184 
 Myers v. L. & S. W. Ry. Co.. . 80, 188 
 Mytton v. Midland Ry. Co 57, 404 
 
 N. 
 
 Nanson v. Jacob 139 
 
 Nelson v. Dahl 207 
 
 V. Macintosh 3 
 
 V. Woodrutt' 51 
 
 N. E. Ry. Co. r. Cairns 212 
 
 Neston Colliery Co. r. L. & N. W. 
 
 Ry. Co. and G. W. Ry. Co 205 
 
 New Albany Ry. Co. r. Campbell .. 208 
 Newcastle & Berwick Ry. Co. v. 
 
 Crisp 73 
 
 Newhavcn & Northampton Co. v. 
 
 Campbell 100 
 
 New Jersey S. Nav. Co. v. Mer- 
 chants' Bank 77 
 
 Newry k Armagh Ry. Co. v. Gt. N. 
 
 of Ireland Ry. Co 318 
 
 Nichols V. N. E. Ry. Co 134 
 
 V. Marsland 43 
 
 Nicholson and another r. G. W. Ry. 
 
 Co 349, 350 
 
 V. Mounsey 20 
 
 Nitro-Pho.sphate Mamu-e Co. f . L. & 
 
 S. K. Docks Co 46 
 
 N. L. Ry. Co. V. L. & N. W. Ry. 
 
 Co 444 
 
 Norman v. Phillips 108 
 
 North Brit. Ins. Co. v. London, &c. 
 
 Globe Ins. Co 214 
 
 North Central Wagon Co. v. M. S. 
 
 & L. Ry. Co 250 
 
 North Monklands Ry. Co. v. N. B. 
 
 Ry. Co 322 
 
 North Pacific Ry. Co. v. Territory.. 277 
 Norway Plains Co. v. Boston & 
 
 Maine Ry. Co 207 
 
 Notara v. Henderson 55, 171 
 
 Noyes r. R. & B. Rr. Co 18 
 
 Nugent V. Smith. . 11, 14, 43, 44, 48, 384 
 
 0. 
 
 Oakley v. Portsmouth, &c. Steam 
 
 Packet Co 43 
 
 O'Hanlon v. G. W. Ry. Co. . . 194, 201 
 
 Oppenheim v. Russell 113 
 
 Osborne v. L. Sc N. W. Ry. Co. .492, 501 
 
 Ostrander v. Brown 86 
 
 Owen V. Burnett 57, CO, 62 
 
 V. G. W. Ry. Co 500 
 
 Oxlade v. N. E. Ry. Co. . . 118, 120. 234, 
 
 350, 353 
 
 P. 
 
 Packard v. Getman 34 
 
 Page V. Gt. N. Ry. Co 190 
 
 Painter v. L. B. & S. C. Ry. Co. . . 361 
 Palmer v. Grand Junction Ry. Co. .12, 75 
 
 V. Lorillard 98 
 
 r. L. & .5. W. Ry. Co 356 
 
 Pardington v. S. Wales Ry. Co.. 130, 159 
 Parker v. Gt. West. Ry. Co... 34, ISO, 
 
 228 
 
 v. S. E. Ry. Co 429 
 
 Parkinson v. G. W. Ry. Co 210 
 
 Parmelee v. McNulty 16 
 
 Patscheider v. G. W. Ry. Co. . .81, 419, 
 
 425 
 
 Paxton V. N. B. Ry. Co. 384 
 
 Payne v. Partridge 15 
 
 Peek V. N. StaflE. Ry. Co. ..23, 77, 131, 
 146, 147, 149, 150,161, 162, 370 
 Pelton V. Rensselaer & Saratoga Ry. 
 
 Co 208 
 
 People V. N. Y. &c. Ry. Co 277 
 
 Perkins v. L. & N. AV. Ry. Co 234 
 
 Pfister r. Central Pacific Ry. Co. . . 18 
 
 Phelps V. L. & N. W. Ry. Co 404 
 
 , Stokes & Co. r. Comber . . 1 14 
 
 Phillips V. Clark 45, 52, 390 
 
 V. Earle 31, 32 
 
 V. Edwards 23, 36, 73 
 
 • v. L. & S. W. Ry. Co 504 
 
 Pickford v. Caledonian Ry. Co. .210, 362 
 
 V. Grand June. Ry. Co.. 21, 24, 
 
 25. 33, 95, 134, 138, 142 
 
 Piddington v. S. E. Ry. Co 336 
 
 Pinciani v. L. ic S. W. Ry. Co 63 
 
 Piatt V. Hibbard 20, 38 
 
 Pontifex v. Man. Sheff. & Line. Ry. 
 
 Co 202 
 
 Poulton V. L. & S. W. Ry. Co 175
 
 TABLE OF CASES. 
 
 PAGE 
 
 Powles V. Hider 510, 513 
 
 Pozzi V. Shipton 22, 49, 50, 448 
 
 Pratt V. Ogdensburg Ry. Co 386 
 
 Pryce v. Monmouthshire Ry. Co. . . 181 
 
 R. 
 
 R. r. Frere 81, 203, 406, 478 
 
 — V. Ivens 22 
 
 — V. Paget 4Go 
 
 — v. Wood 4G8 
 
 Rabrosk v. Herbert 14 
 
 Radley v. L. & N. W. Ry. Co 492 
 
 Rain r. Glasgow & S. W. Ry. Co. . 147 
 
 Raits V. Mitchell 99 
 
 Ralston v. Caledonian Ry. Co 384 
 
 Randleson r. Murray 34 
 
 Rankin r. Memphis, iS:c. Packet Co. 101 
 Ransome r. Eastern Counties Ry. 
 
 Co 340, 349, 350, 352 
 
 Raphael r. Pickford 83, 191 
 
 Read v. Spalding 46 
 
 Redheadr. Midland Ry. Co. ..13, 18,42, 
 
 168, 485 
 Redmayne v. G. W. Ry. Co. . .195, 199 
 
 Relf V. Rapp 54 
 
 Rhymney Iron Co. v. Rhymney Ry. 
 
 Co 351 
 
 Rice v. Baxendale 193 
 
 Richards v. L. B. & S. C. Ry. Co. .401, 
 
 403, 412 
 Richardson v. G. E. Ry. Co .... 169, 487 
 
 . r. Midland Ry. Co. . . 360 
 
 V. N. E. Ry. Co. . .170, 366 
 
 . f. Sewell 14 
 
 Riley r. Home 21 , 27, 40, 130, 201 
 
 Rimmell v. G. W. Ry. Co 67 
 
 River "Wear Commissioners v. Adam- 
 son 44 
 
 Roberts v. G. W. Ry. Co 
 
 . V. Turner 
 
 Robertson v. Midland Gt. We.steni 
 
 390 
 20 
 237, 
 359 
 Robin.son r. Dunmore. .9, 10, 32, 49, 513 
 
 r. G. W. Ry. Co. . . 150, 158, 
 
 173 
 
 . V. L. & S. W. Ry. Co. . . 370 
 
 r. Ward 7 
 
 Robson r. N. E. Ry. Co 491, 499 
 
 Roe V. Birkenhead, Lane. & C. June. 
 
 Ry. Co 1"" 
 
 Rolts V. Buffalo, &c. Ry. Co 427 
 
 Ronan v. Midland Ry. Co 156 
 
 Rooke r. Midland Ry. Co 202 
 
 Rooth r. N. E Ry. Co. . . 156, 159, 161, 
 
 162, 170, 390, 391 
 
 Roset'. N. E. Ry. Co 491, 500 
 
 PAGE 
 Rosevear China Clay Co., Ex parte. . 106, 
 
 110 
 
 Roskell V. Waterhouse 38 
 
 Rosst'. Hill 7, 16, 19, 513 
 
 Rowe V. Pickford 92 
 
 Rumsey r. N. E. Ry. Co. . . 399, 409, 427 
 Rushforth r. Hadfield 97 
 
 S. 
 
 Sandiman v. Breach 55 
 
 Sargent v. Morris 108 
 
 Saunders r. S. E. Ry. Co 471, 472 
 
 Sayer r. Portsmouth Ry. Co 53 
 
 Scaife r. Earrant 14, 19, 75 
 
 Scarfe v. Morgan 102 
 
 Schotsman v. Lane. & York. Ry. Co. 110 
 
 Schidze r. G. E. Ry. Co 199 
 
 Scotthorn v. S. Staff. Ry. Co. . .80, 93, 
 
 182, 203, 204, 427 
 
 Scottish Central Ry. Co. v. Ferguson 149 
 
 Scottish N. E. Ry. Co. v. Anderson 247 
 
 . t>. Matthews 474 
 
 Self V. L. B. & S. C. Ry. Co 486 
 
 Selway v. Holloway 31 
 
 Severn & Wye, &c. Ry. Co. v. G. 
 
 W. Rt. Co 318, 328 
 
 Sharp v' Grey 18, 50, 448 
 
 Shepherd v. Prist. & Ex. Ry. Co. . . 178, 
 184, 212, 214, 391 
 
 V. Gt. N. Ry. Co 404, 406 
 
 r. Midland Ry. Co 503 
 
 Sheridan i\ New Quay Co 87 
 
 Sherman v. Hudson, &c. Ry. Co. . . 208 
 
 Shiells V. Blackburne 3 
 
 ShUlibeer r. Glyn 4 
 
 Ship Howard v. Wissman 51 
 
 Shriver v. Sioux City Ry. Co 53 
 
 Siffkin V. Wrav 109 
 
 Simmons v. G." W. Ry. Co. . . 148, 158, 
 
 159, 160 
 
 r. Law 12 
 
 Simpson v. L. G. Omnibus Co 512 
 
 V. L. & N. W. Ry. Co. .194, 196 
 
 Skinner i\ Chicago, &c. Ry. Co. . . 221 
 
 V. L. B. & S. C. Ry. Co. . . 498 
 
 V. Upshaw 97, 98 
 
 Skiuningrove Iron Co. v. N. E. Ry. 
 
 Co 302 
 
 Slattery r. Dublin & Wicklow Ry. 
 
 Co. 503 
 
 Slim r. Gt. N. Ry. Co 138, 385 
 
 Smith r. Hudson ....103, 104, 105, 110 
 
 i\ London, kc. Docks 497 
 
 V. Midland Ry. Co 384 
 
 Sneesby v. Lane. «&: Tork. Ry. Co. . 391 
 S. E. Ry. Co. V. Ry. Commissioners, 
 
 &c 265, 276, 289, 435, 436
 
 TABLE OF CASES. 
 
 PAGE 
 
 South & N. Alabama Ey. Co. v. 
 
 Henlein 173 
 
 Southern Exp. Co. v. Kaufman ... 87 
 
 V. Newby 31 
 
 Southsea & Isle of W. S. Ferry Co. 
 
 V. L. & B. and S. W. Ey. Cos. . . 34 1 
 
 Spade V. Hudson River Co 38 
 
 Stallard v. G. "W. Ry. Co 432 
 
 Stephenson v. Hart 87 
 
 Stevens v. G. W. Ry. Co 200 
 
 V. L. & S. W. Ry. Co.. . 6C, G7 
 
 Stewarts. L. & N. W. Ry. Co. 401, 
 
 410, 466 
 
 ■ V. N. British Ry. Co 221 
 
 Stoessiger v. S. E. Ry. Co 57, 60 
 
 Stokes V. Saltounstal 510 
 
 Storr ?'. Crowley 92 
 
 Stovu-bridge Canal Co. v. "Wheeler 180 
 
 Streoter v. Horlock 39 
 
 Strick V. Swansea Canal Co 351 
 
 Stuart V. Crawley.... 52, 53, 171, 367 
 
 Sutton V. G. W. Ry. Co 25, 1 34 
 
 S. W. Ry. Co. V. Staines 276 
 
 Swain v. Shepherd 108 
 
 Swindon, Marl. & And. Ry. Co. v. 
 
 G. W. Ry. Co. and Others. . 306, 326 
 Syms V. Chaplin 65, 200 
 
 T. 
 
 Taff Vale Ry. Co. v. Giles. .88, 173, 175, 
 
 211 
 Talley v. G. W. Ry. Co... 9, 400, 401, 
 403, 412, 427 
 Tal-y-Uyn Ry. Co. v. Cambrian 
 
 Rys. Co 328 
 
 Tattersal r. National S.S. Co 386 
 
 Tavlor v. G. N. Ry. Co 82, 191 
 
 Teats V. D. & Newry S. Co 35 
 
 Tharsis Sulphur Co. v. L. & N. W. 
 
 Ry. Co 257 
 
 The Brig CoUenberg 51 
 
 The Glenfreim 169 
 
 The Notting Hill 197 
 
 Thom V. Caledonian Ry. Co 475 
 
 Thomas v. Day 92 
 
 V. Noi'th Staffordshire Ry. 
 
 Co 116, 117, 298 
 
 V. Rhymncy Ry. Co.. .452, 486 
 
 Thompson, Evershed and Others r. 
 
 L. &N. W. Ry. Co... 354 
 
 V. Midland Ry. Co 458 
 
 Thorogood v. Marsh 45, 46 
 
 Tichbunie v. White 26,30 
 
 Tiemey v. New York Central Ry. 
 
 Co 131 
 
 Toomer v. L. C. & D. Ry. Co 312 
 
 Tower v. Utica & S. Ry. Co 49 
 
 PAGE 
 Tracey v. Pullman Palace Car. Co. 414 
 
 Tracy v. Wood 2, 3 
 
 Treadwin v. G. E. Ry. Co 61 
 
 Tregelles v. Sewell 106 
 
 Trent Nav. Co. v. Wood 48 
 
 Trowbridge v. Chaplin 32 
 
 Tunbridge Wells Local Board v. 
 
 S. E. Ry. Co 277 
 
 Turner v. L. & S. W. Ry. Co 180 
 
 Tyly V. Morrice 23, 30 
 
 U. 
 
 Uckfield Local Board v. L. B. & 
 
 S. E. Ry. Cos 300, 308 
 
 Union Exj). Co. v. Graham 132 
 
 Upston V. Slark 31 
 
 V. 
 
 Van Toll v. S. E. Ry. Co. 73, 145, 421, 
 
 431 
 
 Vaughan v. Taff Vale Ry. Co 503 
 
 Vaughton V. L. & N. W. Ry. Co. . . 67 
 
 Venables v. Smith 510 
 
 Vermont State Grange v. Boston & 
 
 Lowell Ry. Co 341 
 
 Victoria Colliery Co. r. Midland & 
 
 Neath & Brecon Ry. Cos 303 
 
 W. 
 
 Waite V. N. E. Ry. Co 497 
 
 Walker v. G. W. Ry. Co 178 
 
 v. Jackson. .7, 12, 15, 27, 30, 63, 
 
 82, 172 
 V. Midland Gt. ^Y. of Ire- 
 land Ry. Co 142 
 
 V. S. E. Ry. Co 478 
 
 V. York L^ North Midland 
 
 Ry. Co 36, 73, 75, 77 
 
 Wallace v. Gt. South & West Ry. 
 
 Co 132 
 
 V. Woodgato 100 
 
 Wallis V. L. & S. W. Ry. Co 247 
 
 Warner v. Scot. Cent. Ry. Co 210 
 
 Warwick & Birm. Canal Co. v. Birm. 
 
 Canal Co. and Others 323 
 
 Waterford & Limerick Ry. Co. v. 
 
 Gt. S. & W. Ry. Co 383 
 
 Watkinson r. Wrexham, &c. liy. 
 
 Co 226, 236 
 
 Watson and Others v. Swindon, kc. 
 
 Ry. Co. and G. W. Ry. Co 304
 
 TABLE OF CASES. 
 
 PAGE 
 
 Watson V. N. British Ry. Co 172 
 
 Way r. G. Eastern Ry. Co 67 
 
 Wayde v. Carr 512 
 
 Webb, In re 92, 219 
 
 ■ V. Page 27, 52, 54 
 
 Webber r. G. W. Ry. Co 182 
 
 Weir V. Home 136 
 
 Welch V. L. & X. W. Rv. Co 419 
 
 Welfare v. L. & B. Ry. Co 501 
 
 Wentworth v. Outhwtiite 110 
 
 West r. L. & N. W. Rv. Co 349 
 
 Westfield r. G. W. Ry. Co 249 
 
 Whaite v. Lane. & York. Ry. Co. . . 61 
 
 Whalley r. Wray 45 
 
 White V. G. W. Ry. Co 158 
 
 V. Humphrey 55, 88 
 
 V. Vann 96 
 
 V. Winnisimmet Co 9 
 
 Whitfield V. Be Spencer 20 
 
 Wibert r. N. Y. & Erie Ry. Co. . . 190 
 Wilby V. West Cornwall Ry. Co. . . 183 
 
 Wilhams r. East India Co 29 
 
 V. G. W. Ry. Co 98 
 
 Willoughby v. Horridge 14 
 
 Wilson V. Anderton 109 
 
 V. Brett 3 
 
 • V. Lane. & York. Ry. Co. . . 50, 
 
 166, 192, 194, 195, 381 
 
 • & Son V. Scott 136 
 
 r. West Cornwall Ry. Co. . . 183 
 
 r. York. New. & Ber. Rj^. 
 
 Co 195 
 
 Wiltsliire r. G. W. Ry. Co 98 
 
 Iron Co. r. G. W. Ry. Co. 249 
 
 Wing r. New York & Erie Ry. Co. 44 
 Winkfield v. PacMngton 26 
 
 PAGE 
 
 Wise V. G. W. Ry. Co 391 
 
 Wolf v. Summers 514 
 
 Woodgate r. G. W. Ry. Co. . . 452, 459 
 
 Woodger v. G. W. Ry. Co 197 
 
 Woodruff Sleeping, &:c. Coach Co. 
 
 f. Diehl 414 
 
 Woodward v. Eastern Counties Ry. 
 
 Co 474 
 
 V. L. & N. W. Ry. Co.. 58 
 
 Worsdell, Lire 113 
 
 Wrexham Ry. Co. v. Little Moun- 
 tain Ry. Co 158 
 
 Wright v. L. & N. W. Ry. Co. 202, 222 
 
 V. Midland Ry. Co. .. 19, 485 
 
 r. Snell 94, 97, 100 
 
 Wyld V. Pickford. .26, 36, 57, 62, 77, 78 
 
 Y. 
 
 York, Newcastle & Ber. Ry. Co. r. 
 
 Crisp 73, 118 
 
 York, &c. Ry. Co. v. Crisp and 
 
 Thompson 383 
 
 Young r. Gwendraeth VaUeys Ry. 
 
 Co 2C1 
 
 Z. 
 
 Zunz V. S. E. Ry. Co. . . 36, 140, 148, 
 
 423
 
 LIST OF ABBREVIATIONS 
 
 USED IN THIS WORK. 
 
 A. & E Adolphus & Ellis's Reports, K. B. 
 
 A. & E. Ry. Co. . . American and English Railway Cases (published in New York). 
 Ala Alabama Reports. 
 
 Aleyn Aleyn's Select Cases, K. B. 
 
 Allen AUea's Reports. 
 
 Angell Angell on Law of Carriers (oth ed. by Lathrop, 1877). 
 
 App. Cas Law Reports, Appeal Cases. 
 
 B. & A Barnewall & Aldcrson's Reports, K. B. 
 
 B. & Ad Barnewall & Adolphus's Reports, K. B. 
 
 B. & B Broderip & Bingham's Reports, C. B. 
 
 B. & C Barnewall & Cresswell's Reports, K. B. 
 
 B. N. P Buller's Ni.si Prius. 
 
 B. & S Best & Smith's Reports, Q. B. 
 
 Bacon Ab. . . , Bacon's Abridgement. 
 
 Bailey Bailey's Law Reports, South Carolina. 
 
 Barb Barbour's Reports, Supreme Ct., N. Y. 
 
 Beav Beavan's Reports, Rolls Court. 
 
 Bing Bingham's RejJorts, C. P. 
 
 Bing. N. C Bingham's New Cases. 
 
 Binn Binney's Reports, Pennsylvania. 
 
 Bl. C Bkckstone's Commentaries. 
 
 Black Bhvck's Reports, U. S. Sup. Ct. 
 
 Black, H Henry Blackstone's Reports. 
 
 B. Monr Ben Monroe's Kentucky Reports. 
 
 Bos. & Pul Bosanquet & Puller's Reports, C. P. 
 
 Bosw Bosworth's Reports. 
 
 Bro. & B Broderip & Bingham's Reports, C. P. 
 
 Bull. N. P Buller's Nisi Prius. 
 
 Burr Burrow's Reports, K. B. 
 
 C. B Common Bench Reports. 
 
 C. B. (N. S.) Common Bench Reports, New Series. 
 
 C. & F Clark & Finelly's Reports, H. L. 
 
 C. & J Crompton & Jervis's Reports, Ex. 
 
 C. M. & R Crompton, Meeson, & Roscoe's Reports, Ex. 
 
 C. P. D Law Reports, Common Pleas Division. 
 
 Cal Cahfornia Reports. 
 
 Camp Campbell's Reports, Nisi Prius. 
 
 C^r' & Kir I Harrington & Kirwan's Reports, N. P. 
 
 Car. & M Carrington & Marsham's Reports. 
 
 Car. & P Carrington & Payne's Reports, N. P. 
 
 Carth Carthew's Reports, K. B. 
 
 Ch. D Law Reports, Chancery Division. 
 
 Chit. & T Chitty & Temple on Carriers. 
 
 Chit. Rep Chitty's Reports, Bail Court. 
 
 Co Coke's Reports, K. B. 
 
 Co. Lit Coke on Littleton (1st Inst.). 
 
 Conn Connecticut Reports 
 
 Cow Cowen's Reports, N. Y. 
 
 Cowp Cowper's Reports, K. B. 
 
 Cr. & M Crompton & Meeson' s Reports, Ex. 
 
 Cush Cushing's Reports, Massachusetts.
 
 wv 
 
 LIST OF ABBREVIATIONH. 
 
 Dana Dana's Reports, Kentucky. 
 
 Duveis Daveis's Reports, U. S. 
 
 Dev. Ct. of CI Devereux's Reports, U. S. Ct. of Claims. 
 
 Disn Disney's Reports, S. C. of Cincinnatti. 
 
 Doug Douglas's Reports, K. B. 
 
 Dow. & L Dowling & Lowndes' Reports, Bail Ct. 
 
 Dow. & R Dowling & Ryland's Magistrates' Cases. 
 
 Dowl Dowling's Practice Cases. 
 
 E. & B Ellis & Blackburn's Reports, Q. B. 
 
 E. B. & E Ellis, Blackbiu-u & Ellis's Reports, Q. B. 
 
 East East's Reports, K. B. 
 
 East, P. C East's Pleas of the Crown. 
 
 Eden Eden's Reports, Chancery. 
 
 Esp Espinasse's Reports. 
 
 Ex Welbsby, Hmistone & Gordon's Reports, Ex. 
 
 Ex. D Law Reports, Exchequer Division. 
 
 E. & E Poster k. Finlayson's Reports, N. P. 
 
 ^ I Georgia Reports. 
 
 Gow Gow's Nisi Prius Cases. 
 
 Gray Gray's Reports, Massachusetts. 
 
 H. & C Hui-lstone & Coltman's Reports. 
 
 H- L. ) QYAv'k & Einnelly's House of Lords' Reports, N. S. 
 
 Jd. L. Ca ) 
 
 H. & N Hm-lstone & Norman's Reports, Ex. 
 
 Harr. & J Harris & Johnson's Reports, Maryland. 
 
 Harrington, Del. . . Harrington's Delaware Reports. 
 
 Harper Harper's Reports, South Carolina. 
 
 Hawk. P. C Hawkins' Pleas of the Crown. 
 
 Heisk Heiskell's Reports, Tennessee. 
 
 Hill, N. Y Hill's Reports, N. Y. 
 
 Hilt Hilton's Reports, Common Pleas, N. Y. 
 
 Holt Holt's Reports, K. B. 
 
 How Howard's Reports, U. S. Suprerne Court. 
 
 Hume Hume's Decisions, Court of Session. 
 
 Hiunph Humphrey's Reports, Tennessee. 
 
 Ir. C. L. R Irish Common Law Reports. 
 
 Ir. E. R Irish Equity Reports. 
 
 Ir. Rep. C. L Irish Law Reports, C. L. 
 
 Ir. Rep. Eq Irish Law Reports, Equity. 
 
 Ill Illinois Reports. 
 
 Ind Indiana Reports. 
 
 Iowa Iowa Reports. 
 
 Irvine Decisions in Coui-t of Justiciary, Scotland. 
 
 Jo[^^s- • \ Johnson's Cases, N. Y. 
 
 Johns. Gas J 
 
 Jur Jurist Report. 
 
 Kent Com Kent's Commentaries on the Law of the United States. 
 
 Kernan Keman's Reports, Appeal Court, N. Y. 
 
 L. J Law Journal Reports in aU the CoiU'ts. 
 
 L. R Law Reports in all the Courts. 
 
 L. R. Ir Law Reports, Ireland. 
 
 L. T I^aw Times Reports in all the Courts. 
 
 Ld. Raym Lord Raymond's Reports, K. B. 
 
 Leach Leach's Crown Cases. 
 
 M. & G Manning & Granger's Reports, C. P. 
 
 M. & S Maule & Selwyn's Reports, K. B. 
 
 M. & W Mceson & Welsby's Reports, Ex. 
 
 Maine Maine's Reports, U. S. 
 
 Man. & R Planning k Ryland's Reports. 
 
 Mason Mason's Reports, U. S.
 
 LIST OF ADBBEVIATIONS. xxxi 
 
 Mass Massachusetts Reports. 
 
 M'Cl. & Y M'Cleland & Toungc's Reports, Ex. 
 
 McMul MacMullen's Reports. 
 
 Md Maryland Reports. 
 
 Met Metcalfe's Reports, Massachusetts. 
 
 Mich , .... Michigan Rei^orts. 
 
 Minn Minnesota Reports. 
 
 Miss Mississippi Reports. 
 
 Mo Missouri Reports. 
 
 Mod. R Modern Reports, K.B. 
 
 Moo. & P. ........ Moore & Payne's Reports, C. P. 
 
 Moo. »fc R Moody & Robinson's Reports, N. P. 
 
 Moore, C. P Moore's Common Pleas Reports. 
 
 N. C Bingham's New Cases. 
 
 N. H New Hampshire Reports. 
 
 N. Y New York Court of Appeal Reports. 
 
 Neb Nebraska Reports. 
 
 Ohio Ohio Reports. 
 
 P. & D Perry & Davidson's Reports, K. B. 
 
 Pa. St Pennsylvania State Reports. 
 
 Peake, N. P. C. . . Peake's Nisi Prius Cases. 
 
 Pot. Ab Petersdorfi''s Abridgment. 
 
 Pick Pickering's Reports, Massachusetts. 
 
 Price Price's Reports, Exchequer. 
 
 Q. B Adolphus ic Ellis' Queen's Bench Reports, N. S. 
 
 Q. B. D Law Reports, Queen's Bench Division. 
 
 Ry. Ca Railway Cases. 
 
 Ry. & Ca. Tr. Ca. . . Reports of Cases before the Railway Commission. Vols. 1-3, 
 
 by Neville and Macnamara ; Vols. 4-6, by Browne & Mac- 
 
 namara. 
 
 Ry. & M Ryan & Moody's Reports, N. P. 
 
 Salk Salkeld's Reports, K. B. 
 
 Seld Selden. 
 
 Selw. N. P Selwyn's Nisi Prius. 
 
 Sess. Ca Decisions in the Court of Session, Scotland ; 4 series. 
 
 l7oi^^\: : •.:::: 1 S^«"'s New Reports, C. p. 
 
 Show Shower's Reports, K. B. 
 
 Smith Smith's Reports, Indiania. 
 
 Smith, E. D E. D. Smith's Reports, Common Pleas, N. Y. 
 
 Smith, L. C Smith's Leading Cases, 8th ed. 
 
 St^\' n" P I Starkie's Reports, Nisi Prius. 
 
 Story Story's Reports. 
 
 Story on Bailm. . . Story on Baihnents (8th ed., by Bennett). 
 
 Stra Strange' s Reports, K. B. 
 
 Siunner's R Sumner's Reports, U. S. 
 
 T. R Term Reports. 
 
 Taun Taunton's Reports, C. P. 
 
 Tex Texas Reports. 
 
 Ve Vesey' s Reports, Chancery. 
 
 Vent Ventris' Reports, K. B. 
 
 Vt Vermont Reports. 
 
 W. R Weekly Reporter of Cases in all the Courts. 
 
 "Wall Wallace's Reports, U. S. Supreme Court. 
 
 Watts & S Watts and Sargcant's Reports, Pennsylvania. 
 
 W. Bl Sir William Blackstone's Reports, K. B. 
 
 Wend Wendell's Reports, N Y. 
 
 Wils Wilson's Reports, K. B. 
 
 Wms. Saund Notes to Saunders' Reports by Williams. 
 
 Wy Wyoming Reports.
 
 CORRIGENDA. 
 
 Page 38, line IS, for " SrooJc v. Picku-ith," read ''Brooke v. Fickwick:'' 
 44 ,, 19, /or Art. " 174," read " 176." 
 49 ,, 11 from bottom, for " 3" Bos. & Pal., read " 2." 
 55, last 2 lines, omit the words "As to parliamentary trains, see 7 & 8 Vict. 
 
 c. 85, s. 10." 
 86, line S, for " Comls v. Bristol Ry. Co., 3 H. & N. 1," read " Coombsy. Bristol 
 
 # Rr. Mij. Co., 3 H. & N. 510." 
 87 ,, 10, for '' Garrett y. Willan,'" read '' Garnctt y. Willan.'" 
 143 ,, 11, omit the icords " and 16." 
 
 180 ,, 9 from bottom, for ''Aberdeen Commereial Co." read "Aberdeen lime Co.'^ 
 200,, 11 ,, for " Si/mes y. Chaplain,'' read " Si/ms y. Chaplin.'" 
 
 228, last line, for " 203," read " 205." 
 
 396, for Article " 313," read " 312 ; " and for Article " 314," read " 313." 
 488, line 12 from bottom, for " 8 & 9 Vict." read " 9 & 10 Vict." 
 490 „ 9 ,, for "c. 23," read" c. 93." ■
 
 A. DIGEST 
 
 LAW OF CAEEIEES 
 
 Part I. 
 
 CAimiERS OF GOODS BY LAND, GENERALLY. 
 
 ♦ ' 
 
 CHAPTER I. 
 
 CAERIERS WITHOUT HIRE, 
 
 1. If a person undertakes to cany goods for another ^^^^p/; 
 gratuitously, he is bound to use diligence in doing so, 
 but not in so high a degree as one who receives pay- 
 ment ; he is only liable for gross negligence. 
 
 The liability of the carrier without reward is derived from his 
 undertaking, which, being gratuitous, excuses him in the absence 
 of that aggravated degree of negligence which is called gross 
 negligence. 
 
 The reason given by Sir William Jones in bis work on Bailments 
 why actions against gratuitous bailees have been so rare is, that it 
 is very uncommon for a person to undertake any office of trouble 
 without compensation, " But, perhaps," says Story, *' a large 
 survey of human life might have furnished a more charitable 
 interpretation of this absence of litigation : first, because, from the 
 great facilities of a wide and cheap intercoui'se in modern times, 
 there is the less reason to burden friends with the execution of such 
 trusts ; and, secondly, because, in cases of loss, there is an extreme 
 reluctance on the part of bailors to make thch friends the victims 
 of a meritorious, although it may be a negligent, kindness." (See 
 Story on Bailm., Chap. VI.) 
 
 M. B
 
 2 THE LAW OF CARRIERS. 
 
 ^Art* 2^' ^* -^^'^^^^^ facie a gratuitous carrier of goods for 
 
 ■ another, avIio keeps them with the same care that he 
 keeps Ids own of the same description, is not guilty of 
 gross negligence ; but this presumption may be re- 
 pelled by evidence of actual negligence, or of conduct, 
 which, though applied to his own goods as well as to 
 those of the bailor, would be deemed negligence in a 
 man of ordinary prudence. [Tracy v. Wood, 3 Mason, 
 132.) 
 
 In considering what is gross negligence, the nature 
 and value of the property delivered to a carrier to be 
 carried gratuitously must be considered. {If^-) 
 
 In the case of a carrier, wdio is a person who holds 
 himself out for the careful and skilful performance of 
 a particular duty, gross negligence seems to include 
 the want of that reasonable care, skill, and exj^edition 
 which may properly be ex23ected from a person so 
 holding himself out, and his servants. [Beal v. >S'. Devon 
 Rfj. Co., 3 H. & C. 337; 11 L. T. N. S. 184.) 
 
 For all practical purposes the rule may be stated thus : — That 
 the failure to exercise reasonable care, skill, and diligence is gross 
 negligence ; that what is reasonable varies in the case of a gratuitous 
 bailee and that of a bailee for hire ; that from the former is rea- 
 sonably expected such care and diligence as persons not specially 
 conversant with the carrying business ordinarily use in their own 
 affairs, and such skill as he has ; but from the latter such care and 
 diligence as are usual in persons who are so specially conversant, 
 or, in the absence of usage, are to be expected by analogy to tlie 
 ordinary and usual course of such business, and such skill as he 
 undertakes to have, namely, the skill usual in the business for 
 which he receives paj-ment. {lb.) 
 
 " Gross negligence" is the failure to exercise reasonable care,
 
 Art. 2. 
 
 CARRIERS WITIWCT HIRE. 
 
 skill, and diligence. (See notes to Cogrjs v. Bernard^ 1 Smith's ciiap.^i 
 L. C, and Chit. & T. 9.) 
 
 " Where a person does not carry for hire he is bound to take 
 proper and prudent care of that which is committed to him ; and 
 if he ascertains that the article is of great value, he is hound to 
 watch with great care and diligence." (Per Lord Ellenborough in 
 Nelson v. Macintosh, 1 Stark. N. P. 237.) 
 
 If the subject-matter of the bailment consists of living animals, 
 such as oxen, horses, or sheep, the degree of care to be exercised by 
 a carrier must be consistent with the character of the trust and the 
 natui-e of the property, (Angell, 24.) 
 
 In Tracjj v. Wood {supra), it was held that gross negligence is to 
 be considered with reference to the nature of the goods delivered 
 to a bailee without reward, and that if money is delivered, it is to 
 be kept with more care than common property. 
 
 In Lord V. Midland Rail. Co. (L. R. 2 0. P. 344), Willes, J., 
 said: "Any negligence is gross in one who undertakes a duty and 
 fails to perform it. The term ' gross negligence' is applied to the 
 case of a gratuitous bailee, who is not liable unless he fails to 
 exercise the degree of skill which he possesses." 
 
 3. If a, person gratuitously undertakes to cany 
 goods to the best of his skill, when liis situation or 
 profession is such as to imj^ly skill, an omission to use 
 that skill is imputable to him as gross negligence. 
 (S/iiells V. BlacMunie, 1 Black. II. 158.) 
 
 This proposition is not an exception to Article 1, viz., that 
 gratuitous carriers are liable for gross negligence only, since in the 
 case of a skilled person that may be considered gross negligence 
 which in an ordinary unskilled person would be only a slight 
 want of care. (See Wilson v. Bretf, 11 M. & W. 113.) 
 
 4. If a person undertakes to carry goods safely, he 
 is responsible for any damage they may sustain in the 
 
 b2
 
 Art. 4. 
 
 THE LAW OF CARRIERS. 
 
 Chap. I. carriage, tlirouffli his ncsrlcct, thoiiorli lie Avas not a 
 
 Art- 4 O ^ O O 7 O 
 
 common carrier, and was to have nothino^ for the 
 carriage. {Ooggs v. Bernard, 1 Smith's L. 0.) 
 
 This Article forms part of a general proposition in the law of 
 principal and agent, which has been stated in the following words, 
 viz. :— the confidence induced by undertaking any service for another 
 is a sufficient legal consideration to create a duty in the perform- 
 ance of it. (See S/nllihcer v. GI>/n, 2 M. & W. 143.) 
 
 5. A person who carries goods gratuitously, as a 
 general rule, is excused from liability Avhere their loss 
 is occasioned by theft. 
 If there be great suspicion attending the circumstances imder 
 
 which the theft is alleged to have been committed, a jury would 
 be inclined to disbelieve the theft, and treat the loss as unaccounted 
 for. (Chit. & T. 13.) 
 
 6. A gratuitous carrier has, by reason of the bail- 
 ment and his possession of the goods entrusted to him, 
 such a special property or interest in the goods as 
 will enable him to bring an action against a wrong- 
 doer for an injury to the goods. 
 
 If such a carrier violate the terms of the bailment upon which 
 lie received the goods, tlie case would be otherwise. {Miles v. Cattle, 
 6 Bing. 743.) In that case the plaintiff received a parcel from C. 
 to book for London at the office of the defendants, common 
 carriers. The plaintiff, instead of obeying his instructions, put 
 the parcel into his bag, intending to take it to London himself. 
 The defendants having lost the bag, it was held that the plaintiff 
 could not recover damages from them in respect of the parcel. 
 
 7. A gratuitous carrier has no lien or right to 
 detain goods entrusted to him until he has received
 
 CARRIERS WITHOUT HIRE. ' [ 
 
 jDayment of the expenses he may Lave incurred in chap. i. 
 reference to such ffoods. '—^ 
 
 fe' 
 
 But if he must necessarily incur expenses in the execution of 
 the commission entrusted to him, he has an imphed authority from 
 the owner to defray such expenses, and an action for money paid 
 is maintainable. Thus, if a person request a friend to carry goods 
 for him in a stage-coach to another town, for which goods carriage 
 hire is usually paid, a like duty to pay the hill is presumed. 
 (See Chit. & T. 13.) 
 
 8. The contract of a person who contracts to carry 
 goods gratuitously is nudum pactum ^ and no action can 
 be maintained against him for omitting to do so. 
 
 Lord Holt, in giving judgment in Cogrjs v. Bernard, draws a 
 distinction where the contract is executory, and says that if the 
 defendant in that case had assumed to carry the goods, and had 
 not done so, no action could have been maintained.
 
 THE LAW OF CAErdEPiS. 
 
 CHAPTER II. 
 
 PRIVATE CARRIERS FOR HIRE. 
 
 Chap. II. 9. Any person carrying for hire, who does not come 
 
 ■ — ^—^ within the definition given in Article 19 of a common 
 carrier, is a private carrier. 
 
 A private carrier lias been defined to be a person whose trade is 
 not that of conveying goods from one person or place to another, 
 bnt who undertakes upon occasion to cany the goods of another 
 and receives a reward for so doing. (See Browne on Carriers, 
 29.) 
 
 10. A common carrier (with certain exceptions) 
 may become a private carrier for hire by a special 
 acceptance limiting his liability as a carrier. 
 
 See post, Chap. YI. ; and also Angell, 47. 
 
 Eefore the Carriers Act, 1830, common carriers might become 
 private carriers for hire by a public notice limiting their liability, 
 of which the owner of the goods had knowledge. {Post, Chap. YI.) 
 
 As to how a railway company may limit the extraordinary 
 liability which the law imposes upon them as common carriers, so 
 as to occupy the position of a private carrier for hire, see 2J0st, 
 Chap. XI. 
 
 11. A private carrier for hire is boimd to use 
 ordinary diligence only with regard to the goods. 
 ( Co(/(js V. Bernard, Smith's L. C. ; Brmrl v. Dak, 8 Car. 
 & P. 207.)
 
 PRIVATE (JARRIERS FOR HIRE. 
 
 In the latter case Lord Abinger said : " If a man agrees to chap. ii 
 
 carry goods for hire, although not a common carrier, he thereby 
 agrees to make good all losses arising from the negligence of his 
 servants, although he would not be liable for losses by thieves or 
 any taking by force." (See Story on Bailm. and Angell.) The 
 very occurrence of loss or damage to the goods delivered to a 
 private carrier for hire appears to be cogent evidence of want of 
 care. {Mackenzie v. Cox, 9 Car. & P. 632 ; Boss v. IM, 2 C. B. 
 877.) But in most cases it is a question of fact for a jury whether 
 ordinary diligence has been used (Difjfv. Budd, 6 Moore (C. P.), 
 469 ; Bechfonl v. CniticcU, 5 Car. & P. 242 ; Beck v. Evans, 16 
 East, 244) ; and depends much upon particular facts and circum- 
 stances, the nature and value of the property, &c. {Walker v. 
 Jackson, 10 M. & W. 161 ; Green v. IloIIingsirorth, 5 Dana. 173.) 
 
 12. TliG ordinary diligence to whicli a private 
 carrier for hire is bound, is such diligence as every 
 prudent man commonly takes of his own goods. 
 
 See notes to Article 13. 
 
 13. A private carrier for liire is not liable for 
 '' losses by thieves or by any taking by force." 
 {Brind v. Dale, 8 Car. & P. 207; see note to 
 Article 11.) 
 
 In the civil law a distinction was made between a public palpable 
 robbery by force and a secret theft or purloining of goods. In the 
 one case the bailee relieved himself from responsibility for the loss 
 by proof of the mere fact of the robbery. In the other case he 
 was bound to make good the loss unless he could show that he had 
 taken the greatest care of the thing entrusted to him, and that it 
 had been purloined notwithstanding every precaution for its safety. 
 (Yin. Com. ad Inst. lib. 3, tit. 15, § 5 ; Pothier, Pret a Usage, 
 Art. 53 ; Bohinson v. Ward, Ey. & M. 276, n. {a) ; Faij v. Steamer 
 New World, 1 Cal. 348.) 
 
 Art. 11.
 
 g* THE LA W OF CARRIERS, 
 
 Chap. II. There are cases in which it has been held that a loss by secret 
 . ^ ' ' - purloining of goods in the hands of a carrier for hire is jyrimd facie 
 evidence of a want of ordinary diligence, and this j)resumption the 
 carrier must rebut by showing that he had taken ordinary diligence, 
 or, in other words, that he had taken all such precautions as appear 
 to be necessary to guard against the theft. {Hatchu-eU v. Coohe, 
 6 Taun. 576, and cases there cited.) 
 
 14. If the owner of the goods in the hands of a 
 private carrier should in any way conduce to their loss 
 or damage, or the loss is as likely to have arisen from 
 the misconduct of the owner, or his want of care, the 
 carrier is not responsible for the loss or damage. 
 (Angell, 48.) 
 
 This Article should be read as controlled by the two following 
 ones as regards a private carrier for hire in England. 
 
 The plaintiff gave to the defendant, a private carrier for hire, or 
 a town carman, certain goods to be taken care of and safely carried 
 from one wharf to another. The plaintiff agreed to go with the 
 cart which was to carry the goods, and to look after them, as the 
 driver had explained that he could not watch both the horse and 
 the goods. Upon the arrival of the cart at its destination, one of 
 the parcels was missing, and the plaintiff, who had not followed 
 the cart, brought an action for the loss of the package through the 
 negligence of the defendant's servant. Lord Abinger, 0. B., in 
 summing up, said : " I take it, that if a man agrees to carry goods 
 for hire, although not a common carrier, he would not be liable if 
 the owner accompanies the goods to take care of them, and was 
 himself guilty of negligence, for it is a rule of law that a party 
 cannot recover if his own negligence was as much the cause of 
 the loss as that of the defendant. It appears that the defendant 
 lets out carts, which ply at different stands ; and if, when this 
 cart was let, the plaintiff agreed to go with the goods and watch 
 them, it is manifest that he did not rely solely on the defendant's
 
 FRIVATE CARRIERS FOR HIRE. c 
 
 servant." [Brind v. Dale, 8 Car. & P. 207 ; see also White \. chap. ii. 
 
 WinnmnDnet Co., 7 Cush. 150.) ' 
 
 15. If the owner goes by the same conveyance as 
 liis goods, and has them placed in such a part of the 
 conveyance that they are in his entire control, and 
 not in the control of the carrier, the duty of the 
 carrier is modified ; and in case of loss occasioned by 
 want of reasonable care on the part of the owner, the 
 carrier is not liable. 
 
 See Tailc!/ v. G. W. By'. Co., L. E. 6 0. P. 44; and post, 
 Art. 57, p. 49, and Chap. XVII. 
 
 16. If the OAvner of the goods deliver them to the 
 carrier in such a way that they are in the entire 
 control of the carrier, the latter will be liable for 
 them, even though the owner may exercise a certain 
 su^^ervision over their transport. 
 
 Where the plaintiff employed the defendant to carry goods, and 
 the defendant said to the plaintiff at starting, " I will warrant the 
 goods shall go safe," it was held that the defendant was liable for 
 any damage sustained by the goods, notwithstanding the plaintiff 
 sent one of his own servants along with the cart to look after them. 
 {Robinson v. Dunmorc, 2 Bos. & Pul. 416. See post, Chaps. 
 V. and XL) 
 
 17. Although the degree of care required of a 
 private carrier for hire extends only to the responsibility 
 for want of ordinary diligence, yet that responsibility 
 may be increased or diminished by special contract. 
 
 The parties to a contract of bailment may modify the terms 
 almost indefinitely, so long as they do not attempt to exempt
 
 10 'J-'IIE LAW OF CARRIE 118. 
 
 Chap. II. themselves for fraudulent acts, and tlie contract is not contrary to 
 ^^' ' morals or statutory enactment. 
 
 A contract to tow a boat, " at the risk of the master and owners 
 thereof," has been held to discharge the paid contractor from 
 liability for every risk arising from a want of ordinary skill. 
 {Alexander v. Greene, 3 Hill, N. Y. 9.) 
 
 18. A private carrier for hire can, by expressly 
 warranting the safety of the goods, assume the greater 
 responsibility whicli devolves upon common carriers. 
 (Eobinson v. JDimmore, 2 Bos. & Pul. 417; Angell, 51.) 
 
 In the above case the plaintiff employed the defendant to carry 
 his goods, and the defendant said to the plaintiff at starting, " I 
 will warrant the goods shall go safe ;" it was held that, although 
 the defendant was " not a common carrier by trade, he had put 
 himself into the situation of a common carrier by his particular 
 warranty." (See also Gibbons v. United States, Dev. Ct. of CI. 26.) 
 
 But even an express promise to carry goods " safely and 
 securely " is but the undertaking implied by law to carry them 
 with ordinary diligence, and does not insure against losses by 
 robbers or any taking by force. (2 Bl. C. 452 ; Story on Bailm.)
 
 11 
 
 CHAPTER III. 
 
 COMMON CARRIERS. 
 
 1. Who are Arts. 19, 20. 
 
 2. IVho are not Art. 21. 
 
 19. A common carrier is a person wlio midertakes ^^^fH^' 
 for hire to transport, from a place within the realm to 
 a place within or without the realm, the goods or 
 money of "all such persons as think fit to employ him. 
 
 To render a person liable as a common carrier, he 
 must exercise the business of carrying as a public 
 employment, and must undertake to carry goods for 
 all persons indiscriminately, and hold himself out, 
 either expressly or by course of conduct, as ready to 
 engage in the transportation of goods for hire as a 
 business, not merely as a casual occupation ^jto hac 
 vice. {Cogrjs v. Bernard^ 1 Smith, L. C. ; Gislourne v. 
 Ilirst^ 1 Salk. 249 ; Ingate v. Christie^ 3 Car. & Kir. 
 Gl ; Ansell v. Watcrlwuse, 2 Chit. Rep. 1 ; Nugent v. 
 Smith, 1 C. P. D. 10, 423 ; 45 L. J. Ex. D. 097.) 
 
 When the acts or conduct of the individual in the 
 ordinary course of business will lead the public to 
 conclude that he is carrying on the business of a 
 common carrier, and when such an understanding as 
 the ground of an agreement is not modified by a
 
 12, THE LAW OF GARRIERS. 
 
 Chap. III. special contract, tlic individual so acting will be held 
 -^ — '- to be a common carrier. {Palmer v. Grand Junction 
 Rail Co., 4 M. & W. 49 ; Walker v. Jackson, 10 M. & 
 W. 161 ; 12 L. J. Ex. 165.) 
 
 A person may be a common carrier of one tiling, 
 while he is not a common carrier of another; but if 
 he has been accustomed to carry all kinds of goods, 
 he cannot by his own free will limit his duty to one 
 particular class of articles, or limit his liability to a 
 responsibility for these only. {3I^Anclreiv v. Electric 
 Telegraph Co., 25 L. J. C. P. 26.) 
 
 There is no substantial difference between a carrier within the 
 realm and one who carries from a place in the realm to a place 
 beyond it. [Bcnett v. P. Sf 0. Steamboat Co., 18 L. J. C. P. 85 ; 
 Croueh V. L. 8f N. W. By. Co., 23 L. J. 0. P. 73 ; see post, p. 48.) 
 
 " Everyone who undertakes to carry for anyone who asks him is 
 a common carrier. The criterion is, whether he carries for par- 
 ticular 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 or me only, that is a matter of special contract." 
 (Alderson, B., in Inrjate v. Christie, 3 Car. & Kir. Gl.) 
 
 A person who holds himself out to the public to carry for hire 
 is a common carrier as much in his first trip as in any subsequent 
 one. {Falter v. Bradley, 25 Pa. St. 120 ; Kirton v. Ilitdebrand, 
 9 B. Monr. 72 ; Simmons v. Lair, 8 Bosw. 213.) 
 
 A common carrier may be of money as well as of goods, and he 
 will be bound as such for the carriage of money as well as of 
 goods, if such is his owm practice or the common usage of the 
 business in which he is engaged. (Story on Bailm., and cases 
 there cited.) 
 
 It is necessary that the carriage be for hire and reward ; for if 
 it be gratuitous the earner is not liable as a common carrier,
 
 COMMON CARRIERS. 13 
 
 although such is his business, but only for want of ordinary Chap. III. 
 
 Art 19 
 
 diligence. {Fay v. Steamer JSfeio World, 1 Cal. 348.) '. — L 
 
 In order to charge a person as a common carrier, it is not neces- 
 sary that a specific sum should be agreed on for the hire ; for if 
 none is agreed on, he is entitled to reasonable compensation. 
 {Coggs V. Bernard, ante ; Bastard v. Bastard, 2 Show. 81.) 
 
 20. The following are common carriers : — 
 
 (1) Railway companies; as regards goods wliicli 
 
 tliey are bomid. by Statute to carry, or profess 
 to carry, or actually carry for persons gene- 
 rally, including (subject to statutory exemp- 
 tions) live animals, and also passengers' personal 
 luggage, whicli under their several Acts of Par- 
 liament tlioy are bound to carry free of charge. 
 
 ^ee post, Chap. X., where the subject is fully discussed. 
 
 (2) Canal and navigation companies; as regards 
 
 goods which they are bound by Statute to 
 carry, or profess to carry, or actually carry 
 for persons generally. 
 
 See 8 & 9 Yict. c. 42, ss. 5, 6. 
 
 A company maintaining a canal for the use of the public on 
 payment of tolls is bound to take only reasonable care that the 
 canal may be navigated without danger. It is not a common 
 carrier. {ExeJtange Ins. Co. v. Delaivare Canal Co., 10 Bosw. 180. 
 See also the judgments in Redhead v. Midland By. Co., 38 L. J. 
 Q. B. 1G8 ; Arnold v. Ilalenhake, 5 Wend. 33.) 
 
 (3) Owners and masters of sailing and steam vessels 
 
 employed as general ships trading regularly 
 . from port to port for the transportation of goods
 
 14 THE LA W OF (JARRIERB. 
 
 Chap. III. to be convcA^ed for liire to tlie port of des- 
 
 Art 20 " 
 
 '■ — '- tination, and of the ordinary luggage of pas- 
 sengers, &c, 
 
 (4) Proprietors of barges and lighters, hoymen, 
 lightermen {Ingaie v. Christie, 3 Car. & Kir. 
 CI), and canal and other boatmen carrying 
 goods for all persons indifferently for hire. 
 (2 Ld. Raym. 909, 18; 5 Term Rep. 27; Bac. 
 Ab. Carriers, A.) 
 
 A person who exercises the ordinary employment of a lighter- 
 man, by carrying goods in his flats for reward, although not bound 
 as a common carrier to receive the goods of all comers indifferently, 
 nevertheless incurs the liability of a common carrier for the safety 
 of goods carried by him. {Licer Alkali Co. y. Johnson, L. R. 9 
 Exch. 338 ; 43 L. J. Ex. 216. But see judgment of Cockburn, 
 L. a J., jjo.sf, Ai't. 21 (4).) 
 
 In that case a barge owner let out his barges to all that came 
 to him, and to only one person for each voyage, each being made 
 under a separate agreement, and the customer fixing the termini. 
 (But see Scaife v. Fan-ant, L. R., 10 Ex. 358; and remarks of 
 Cockburn, L. C. J., in Nugent v. Smith, 1 C. P. D. 423 ; 45 L. J. 
 C. P. 697.) 
 
 A hoyman who undertakes to carry goods must deliver them 
 safely, except damaged by the act of God or by the Queen's 
 enemies. {Eichardson v. Seiccll, 2 Smith, 205.) 
 
 A wharfinger who undertakes to convey goods from his wharf to 
 the vessel in his own lighter, is a common carrier. {Mating v. Todd, 
 1 Stark. N. P. 72 ; Gofy. Clinhard, 1 "Wils. 282.) 
 
 (5) Ferrymen, but onhj if they hold themselves out 
 
 to the public as common carriers of goods. 
 {Willoughhj v. Ilorridge, 12 C. B. 7-12 ; 2 Kent, 
 Com. 599 ; Rahrosk v. TIerhert, 3 Ala. 392.) 
 The owners of a private ferry may so use it as to subject them-
 
 COMMON CARRIERS. 15 
 
 selves to the liability of common carriers ; and they do so, if they Chap. iii. 
 notoriously undertake for hire to convey across the river all persons ^^' ' 
 indifferently, with their carriages and goods. [Littkjolui v. Jones, 
 2 McMid. 365.) 
 
 A ferryman seems not to be a common carrier where he takes 
 the passengers along with the goods. {Payne v. Partridge, 1 Salt. 
 12 ; Walker v. Jackson, 10 M. & W. 161 ; 12 L. J. Exch. 165.) 
 
 (G) Proprietors of stage coaches ; of goods wliicli they 
 usually carry for hire, and hold themselves out 
 to carry for all persons indifferently, and of the 
 personal luggage of passengers so carried, al- 
 though they receive no s2oecific compensation 
 therefor, but sim2:)ly receive their fare for the 
 conveyance of the passengers. 
 
 The doctrine is now firmly established, both in England and 
 America, that the responsibility of coach proprietors, carrying 
 passengers with their luggage, stands, as to their luggage, uj)on 
 the ordinary footing of common carriers. {Brooke v. Pickwick, 
 4 Bing. 218, 222 ; Christie v. Griggs, 2 Camp. 80 ; Allen v. 
 Seivall, 2 Wend. 327.) They are responsible for the safety of such 
 luggage and for proper care thereof, because it constitutes a part 
 of the service for which the fare is paid, and the passengers are 
 thereby induced to travel in the coach, and the custody of the 
 luggage may be properly deemed, as in the case of an innkeeper, 
 an accessory to the principal contract. (Lord Holt, in Lane v. 
 Cotton, 12 Mod. E. 473.) 
 
 As to Goods. — It must be clear that the proprietors hold them- 
 selves out as persons exercising a public employment, and as being 
 ready to carry goods for hire for persons in general. The mere 
 fact that the drivers of their coaches are accustomed to carry 
 packages of money or other things for hire, for their own personal 
 emolument, will not make the proprietors responsible therefor as
 
 16 THE LA W OF CARRIERS. 
 
 Chap. III. common carriers. {2IidiUeton v. Foicles, 1 Salk. 282 ; Bean v. 
 ^"'- ^"- Stiniemnt, 8 N. H. 146.) 
 
 An estaLlished practice of conveying for hire in a stage coach 
 parcels not belonging to passengers renders the proprietors liable 
 as common carriers. {Bicight v. Breicsfcr, 1 Pick. 50 ; 3IcIIcnry v. 
 Rij. Co., 4 Harring. Del. 448.) 
 
 (7) Hackney coachmen ; as regards the ordinary 
 baggage of the passengers tliey carr}", and 
 hold tliemselves out to carry with their bag- 
 gage. 
 
 Hackney coachmen are not common carriers of goods or mer- 
 chandize, their employment being for the conveyance of passengers, 
 and not the carriage of goods. (Jeremy on Carriers, 13, 14 ; Adon 
 V. Heaven, 2 Esp. 533.) 
 
 " It is ordinarily the case that hackney coachmen are accustomed 
 to carry the baggage of passengers, although they receive no 
 specific compensation therefor, but simply receive the fare for the 
 transportation of the traveller ; yet, like common carriers, they are 
 responsible for the safety of such baggage ; since it constitutes a 
 part of the service for which the fare is paid, and the passengers 
 are thereby induced to travel in the coach, and the custody of the 
 baggage may be deemed, as in the case of an innkeeper, an 
 accessory to the principal contract." (Angell.) Still it is a 
 question of fact whether a hackney coachman or a cabman pro- 
 fesses to carry both passengers and baggage ; and if it so appear, 
 he is clothed with the obhgations and responsibilities of a common 
 carrier of goods for hu-e. [Boss v. HiU, 2 C. B. 877 ; 3 Dow. & 
 L. 788; Bid-inson v. Winchester, 4 Gush. 114; see Case v. Store i/, 
 L. E. 4 Ex. 319.) 
 
 An omnibus proprietor is liable as a common carrier for the 
 baggage of a passenger. {Bihhie v. Brown, 12 Ga. 217; Parmelee 
 V. McXult>j, 19 111. 556.) 
 
 A street railway corporation will be responsible as common
 
 COMMON CARRIERS. 17 
 
 carriers if tliey allow tlieir drivers and conductors to take, carry, Chap. iii. 
 
 Art 20 
 
 and deliver trunks and parcels for hire. And what is done by the '—^ 
 
 conductors with the knowledge and consent, express or implied, 
 of the superintendents, will bind the company. {Levi v. Lynn 
 and Boston Rail Co., 11 Allen, 300 ; ^QQpost, Chap. lY. Arts. 34, 35.) 
 
 (8) Proiorietors of wagons, carts, &c. who, as a 
 
 public and common employment for hire, 
 cany goods from one town to another, or from 
 one part of a town to another. [Gishoiirn v. 
 Hurst, 1 Salk. 24:9; Hyde v. Trent Nav. Co., 
 5 T. R. 389.) 
 
 A wagoner who carries freight and parcels for all who apply is 
 responsible as a comnlon carrier even when he does not make that 
 his regular and principal business. {Gordon v. Hidckinson, 1 
 Watts & S. 285; Chevallier v. Strahan, 2 Tex. 115; see note to 
 Ingate v. Christie, 3 Car. & K. 62.) 
 
 (9) ''Express" com23anies, who in America receive 
 
 parcels and goods to be carried, and " trans- 
 portation" companies, who are emj^loyed by 
 such expressmen to perform the transportation. 
 (3Iercantile Mutual Ins. Co. v. Chase, 1 E. D. 
 Smith, 115; The American Express Co., 23 
 111. 197.) 
 
 " It cannot be questioned, we think, that the express companies 
 who receive goods for transportation to remote points, without any 
 special undertaking except what is implied from the manner of 
 accepting the charge, are responsible as common carriers, and so 
 are also the companies employed by such expressmen to perform 
 the transportation, without being entitled to claim any exemption 
 from the full measure of their responsibility for care and diligence, 
 on the ground of any special arrangement between themselves and 
 
 M. c
 
 18 THE LAW OF GARItlERS. 
 
 Chap. Ill, those from wliom they accepted the goods." (Kcdfield on Carriers, 
 Art. aAj* „ „ V 
 
 P- 36.) 
 
 In England and upon the continent, it is the uniform practice 
 for the railway companies themselves to carry parcels, but in 
 America it is done by others, chiefly under contract with the 
 railway company. 
 
 Express companies for the transportation of articles of great 
 value in small compass were first instituted in America, when it 
 was held that in the ordinary railway transportation by common 
 carriers of goods there is no obligation after the " goods " reach 
 their appointed destination, but to put them safely in a warehouse, 
 and that the railway company were not bound to deliver at the 
 consignee's residence. (Farmers and Mechanics Bank v. Champlain 
 Transportation Co., 23 Yt. 186, 209 ; Pfister v. Central Pacific 
 R>j. Co., 27 A. & E. Ey. Ca. 246 ; Eeclfield on Carriers, 38, 86.) 
 It has been frequently held in the American courts that express 
 companies are bound to personal delivery. {Baldwin v. American 
 Express Co., 23 111. 197 ; S. C, 26 id. 504.) 
 
 21. The following are not common carriers : — 
 
 (1) A person who conveys passengers only. {^Aston 
 
 V. Heaven, 2 Esp. 533 ; Christie v. Griggs, 2 
 Camp. 79 ; Sharj) v. Greg, 9 Bing. 457.) 
 
 (2) Railway companies ; as regards passengers, and 
 
 also goods which they do not profess to carry, 
 or only carry under special circumstances, or 
 subject to express sti2:)ulations, limiting their 
 liability in respect of them. 
 
 This proposition must be read subject to the duty now cast upon 
 railway companies by sect. 2 of the Railway and Canal Traffic 
 Act, 1854. See post, Chap. X. 
 
 As to railway companies not being common carriers of passen- 
 gers, see BMe v. G. W. Ri/. Co., 31 L. J. Ex. 346 ; Redhead v.
 
 COMMON CARRIERS. 19 
 
 Midland Ry. Co., L. R. 4 U. B. 379 ; 38 L. J. Q. B. 1G9 ; WrUjhl Chap. iii. 
 V. Midland Rij. Co., L. E. 8 Ex. 137; 42 L. J. Ex. 59; and^yo.Y, _^!!l?L 
 tit. " Carriers of Passengers by Eailwaj." 
 
 (3) The owner of a cart or carriage who does not 
 
 ply regularly for hire to a particular destina- 
 tion, but merely lets it out for a special bargain, 
 with horses and driver by the hour, day, or job, 
 to 2^1'oceed to any destination ordered by the 
 hirer. 
 
 A London cabdriver or hackney coachman is not a common car- 
 rier {Brind v. Dale, 8 Car. & P. 207 ; 2 Moo. & R. 80 ; Ross v. Hill, 
 2 0. B. 887), ante, p. 16; nor is a furniture remover, infra, 
 Art. 21 (4). 
 
 A town carman, not conveying goods from any one known ter- 
 minus to another, but plying for hire near the wharves, and under- 
 taking Jobs as he can get them, is not a common carrier. {Brind v. 
 Bale, SKjyra. See notes to Ingafe v. CJiristie, 3 Car. & K. 62.) 
 
 (4) A contractor who undertakes to pack goods as 
 
 well as to carry them, and who enters into an 
 express contract by which he undertakes '' risk 
 of breakage (if any) not exceeding £5 on any 
 one article," is not liable as a common carrier. 
 {Scaife v. Farrcmt, L. R. 10 Exch. 358 ; 44 L. J. 
 Ex. 234.) 
 
 The defendant was the agent of a railway company for collect- 
 ing and delivering goods and parcels, and also carried on upon his 
 own account the business of a carrier, removing goods and furni- 
 ture for hire for all persons indifferently who appHed to him, in 
 his own vans, which he sent by road or rail to all parts of England, 
 the goods and furniture being previously inspected before any con- 
 tract was made. Generally in such contracts the van or vans were 
 hired by and filled with the goods of one person only. 
 
 c2
 
 20 THE LAW OF CARRIERS. 
 
 Chap. III. Cockburn, C. J., in delivering judgment in tlie Exchequer 
 ^''^' ^^' Chamber, said, " I quite agree that the liabilities of a common 
 carrier did not arise in this case, and I entirely concur in the judg- 
 ment of the court, or should have felt bound to enter into the 
 larger question and say whether the defendant was a common 
 carrier at all ; and I emphatically say that, though I am bound by 
 the decision in this couii in the case of the Liirr Alkali Co. v. 
 Johnson (L. E. 9 Exch. 338 ; 43 L. J. Ex. 216), after a careful 
 examination of all the authorities, I have arrived at the conclusion 
 that the question therein is one which ought to be further con- 
 sidered. It is unnecessary to consider that question, inasmuch as 
 our opinion is. that there was in this case a special contract, and 
 not a common law liability of the carrier." 
 
 (5) The Postmaster - General ; postmasters and 
 
 deputy -postmasters. (Laney. Cotton, 1 Salk. 17; 
 Holt, 582.) 
 
 See cases cited in Pet. Ab. tit. Carriers, and in Chit. & T. 
 pp. 19—22. 
 
 " The comparison between a postmaster and a carrier, or the 
 master of a ship, seems to me to hold in no particular whatsoever. 
 There is no analogy between the case of the postmaster and a 
 common carrier." (Lord -Mansfield, in Whitfield v. Bcspcnccr, 
 2 Cowp. 754; see also Nicholson v. Mounscy, 15 East, 384.) 
 
 (6) A person who receives and for\yards goods, and 
 
 who takes upon himself the expenses of transpor- 
 tation, for which he receives a compensation 
 from the owners, but who has no concern in the 
 vessels or wagons by which they are trans- 
 ported, and no interest in the freight. (See 
 Story on Bailm. c. VI. ; Angell, p. 68.) 
 
 He is a mere warehouseman and agent, and not a common 
 carrier. {Roberts v. Turner, 12 Johns. Cas. 232 ; Piatt v. Ribbard, 
 7 Cow. 497.)
 
 ( 21 ) 
 
 CHAPTER IV. 
 
 THE OBLIGATIONS OF A COMMON CARRIER WITH REFERENCE 
 TO THE RECEIVING OF GOODS FOR CON^'ETANCE AND 
 THEIR DELIVERY TO HIM. 
 
 1. The Carrier'' s Duty to receive Goods Arts. 22 — 29. 
 
 2. The Co)isi(/>ior\s Duty Arts. 30 — 33. 
 
 3. What is a sufficient Delivery of the Goods Arts. 34 — 37. 
 
 4. The effect of an Acceptance of the Goods Arts. 38 — 43. 
 
 S2. It is the duty of a common earner to receive Chap. iv. 
 
 , . . Art. 22. 
 
 and carry the goods of any person offering to pay his 
 
 hire, miless his conA^eyance be ah-eady full, or the 
 goods are of such a kind as to be liable to extraordinary 
 danger, or such as he is unable to convey, or is not in 
 the habit of conveying, and does not profess to carr}\ 
 Such a duty does not arise until the carrier is ready 
 to set out on his accustomed journey. (Bac. Ab. 
 Carriers, B. ; Lane v. Cotton, 1 Ld. Baym. 652.) 
 
 There need not be an actual tender of the money for the carriage. 
 It is enough if he carries for all persons who are ready and willing 
 to pay him his customary hire. {Piclford v. Grand June. By. Co., 
 8 M. & W. 372.) 
 
 " lie 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." (Per Best, J., in liiley v. Home, 5 Bing. 217.) In an 
 action against a coachmaster for refusing to carry goods, it 
 appeared that the coach was full, upon which ground the defendant
 
 22 THE LAW OF CARRIERS. 
 
 Chap. IV. refused to take cliarge of the goods, and it was allowed to operate 
 
 '■ — '- as a sutficient excuse, {Jachson v. Rogers, 2 Show. 327 ; Batson v. 
 
 Donovan, 4 B. & A. 32 ; and sec Crouch v. L. 8^^ N. W. By. Co., 14 
 C. B. 2.j5.) 
 
 In 3IcManus v. Lane. 8^ Yorl: R>j. Co. (28 L. J. Ex. 353), 
 Erie, J., said : — " The carrier's duty to receive is always limited to 
 his convenience to carry." 
 
 In Batson v. Donovan, supra, Holroyd, J., held : — " That if the 
 carrier had not a sufficiently secure conveyance for the goods 
 (bank-notes), he might lawfully have refused to take them." 
 
 23. If a common carrier refuse to carry goods 
 offered to him, having no reasonable excuse for such 
 refusal, lie may be indicted for his neglect of duty. 
 (Per Patteson, J., in Poz.d v. Shqyton, 1 P. & D. 12; 
 4 Bl. C. 168 ; 1 Hawk. P. C. c. 78, s. 2 ; Rex v. Ivens, 
 7 Car. & P. 213.) 
 
 It is upon the same principle that innkeepers are by the common 
 law bound to receive and entertain guests, and are indictable for 
 their refusal to do so. 
 
 As to the carrier's liability to an action for refusing to carry, see 
 post, Art. 27. 
 
 24. A common carrier may limit his business to 
 the carriage of particular classes of merchandize or 
 chattels, his obligation in this respect depending upon 
 what he publicly professes to carry, and is in the habit 
 of carrying. 
 
 But as to railway and canal companies, see post, Chap. X. 
 
 If the carriage of certain commodities is attended with incon- 
 venience or some peculiar risk, he may refuse to receive and carry 
 such articles as a common carrier [JoJinson v. Midland Ry. Co., 
 4 Ex. 371 ; McManus v. Lane. 8f York. Ry. Co., 28 L. J. Ex.
 
 TEE DELIVERY OF THE GOODS TO THE CARRIER. 23 
 
 353), but may nevertheless accept and carry them under a special Chap, IV. 
 
 contract, throwing the risk of damage to them from ordinary acci- '- 
 
 dents during the transit upon the owner or the consignor, {Peclc v. 
 N. Staff. El/. Co., 32 L. J. Q. B. 241 ; PhilUps v. Ednrirds, 28 
 L. J". Ex. 52 ; Aiislhi v. Manch. Ey. Co., 16 Q. B. 600; Carr v. 
 Lane. ^ York. Ey. Co., 7 Ex. 707 ; Martin v. Gt. Indian Pen. i?y., 
 L. E. 3 Ex. 9.) See2)osf, Arts. 87, 88. 
 
 "At common law, a carrier is not bound to carry for every 
 person tendering goods of any description, but his obligation is to 
 carry according to his public profession." (Parke, B., in Jolmson 
 V. Midland Eij. Co., mpra.) 
 
 It would be a reasonable excuse for not carrying goods of great 
 value, either if it appeared that the carrier did not hold himself out 
 as a person ready to convey all sorts of goods, or that he had no 
 convenient means of conveying tcith sccurit// such articles. {Batson 
 V. Donovan, 4 B. & A. 32.) 
 
 It has been held that a refusal to carry was reasonable when it 
 appeared that it was a time of public commotion, and that the 
 goods which the carrier was desired to carry were the object of 
 public fury, and would be attended with a risk against which the 
 carrier's precautions would be inadequate to secure him. {Edwards 
 V. Sherratt, 1 East, 604 ; and see Tijhj v. Mar rice. Garth. 485.) 
 
 25. A common carrier may refuse to receive and 
 carry articles of a perishable nature (such as fisli), or 
 of a very delicate and fragile nature (such as statuary, 
 sculptm-ed alabaster, or marble), wliich he does not 
 commonly profess to carry, and which may be easily 
 injured, except under a special contract exonerating 
 him from all responsibility for damage done to them 
 in transitu not occasioned by the gross negligence or 
 default of himself or his servants. (Beat v. South Devon 
 Ry. Co., 29 L. J. Ex. 441 ; 5 H. & N. 875; Peek v.
 
 24 THE LAW OF CARRIERS. 
 
 Chap IV. ^r staf. By. Co., 33 L. J. Q. 13. 241 ; LccBon v. Holt, 
 
 1 Stark. 180.) 
 
 But see as to railway companies, pod, Chap. X. 
 As to wLetlier a carrier is not bound to carry without a special 
 contract if the sender of the goods tender a reasonable sum for 
 their carriage, see jjosf. Art. 27. 
 
 26. A common carrier is not obliged to receive 
 goods mitil lie is ready to set out on his accustomed 
 journey. {^Lam v. Cotton, 1 Ld. Eaym. 652 ; S. C, 
 1 Comyns, 105.) 
 
 A common carrier can refuse to cany if the goods 
 are tendered at an unreasonable time. (^Carton v. 
 Bristol and Exeter Bij. Co., 30 L. J. Q. B. 273; 
 1 B. & S. 112; Plclcford v. Grand Junction By. Co., 12 
 M. & W. 7GC; post, Art. 157.) 
 
 " A common carrier may refuse to admit goods into his ware- 
 house, 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 Holt, in Lane v. Cotton, supra.) 
 
 27. A common carrier is entitled to be paid the 
 amount of his hire before he undertakes the respon- 
 sibility of having the goods in his possession ; but the 
 amount demanded must be reasonable ; and if a person 
 brings him goods to be conveyed, and tenders him a 
 reasonable amount of remuneration, and he refuses to 
 convey the goods upon those terms, he will be liable 
 to an action for having refused. (Batson v. Donovan, 
 4 B. & A. 28 ; PicJcford v. Grand Junction By. Co., 
 10 M. & W. 399.) 
 
 " The carrier is entitled to have his reward paid to him before
 
 THE DELIVERY OF THE GOODS TO THE CAItBIER. 25 
 
 lie takes the package into liis custody." (Best, J., in Batson v. Chap. IV. 
 Donovan, supra.) ■ 
 
 In Pickford v. Grand Junction By. Co., supra, Parke, B., said, 
 " 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." 
 
 If payment of a reasonable sum is refused, the carrier may avoid 
 his common law duty and liability, and make terms for the car- 
 riage of the goods, exactly as a private carrier for hire may. {lb.) 
 
 The sum demanded by the carrier must be reasonable. A 
 carrier is entitled to make a higher charge for the greater risk 
 attending the carriage of valuable goods, but the charge must be 
 reasonable, {Harris v. Packwood, 3 Taun. 2G4.) 
 
 " The obligation which the common law imposed upon a person 
 holding himself out as a common carrier of goods was to accept 
 and carry all goods delivered to him for carriage according to his 
 profession (unless he had some reasonable excuse for not doing so), 
 on being paid a reasonable compensation for so doing. And if the 
 carrier refused to accept such goods, an action lay against him for 
 so refusing ; and if the customer, in order to induce the carrier to 
 perform his duty, paid under protest a larger sum than was reason- 
 able, he might recover back tlie sm-plus beyond what the carrier 
 was entitled to receive in an action for money had and received, as 
 being money extorted from him." (Per Blackburn, J., in Sutton 
 V. G. W. Ey. Co., 38 L. J. Ex. (II. L.) 177.) 
 
 " If the plaintiff had meant to make the defendants liable as 
 common carriers, the course for him to take was to refuse to enter 
 into the special contract, and to tender them the price for the car- 
 riage of the goods, and on their refusal to carry to bring an action 
 against them for not carrying." (Per Parke, B., in Carr v. Lane. 
 (^ York. R>/. Co., 21 L. J. Ex. 261.) 
 
 " I take it that the law with respect to the obligation entered 
 into by persons holding themselves out to the world as common 
 carriers is clear ; namely, that it is their duty to carry for any per- 
 son who tenders to them the proper charge, all goods which they
 
 26 THE LAW OF CARRIERS. 
 
 Chap. IV. liave convenience for carrying, and in respect of wliicli tliey hold 
 
 '■ — '- tliemselves ont as carriers, -without subjecting that person to the 
 
 liability of signing a note containing an unreasonable condition." 
 (Per Cockbiu-n, C. J., in Garton v. Bristol 8f Ex. By. Co., 30 L.J. 
 Q. B. 273.) 
 
 28. A common carrier is not bomid to convey 
 goods except on payment of the full price for the 
 carriage, according to their value ; and if that is not 
 paid, it is comj^etent to him to limit his liability by 
 special contract. {Wylcl v. PicJcford, 8 M. & W. 443.) 
 See note to preceding Article. 
 
 29. If a person send to a carrier's office to know 
 his rate of charges, the carrier is bomid by the 
 representation there made by his clerks or servants 
 "who are transacting the business there ; and if the 
 goods are sent upon the faith of such representation, 
 the carrier cannot charge more than the sum named, 
 although the clerk may have inadvertently fallen into 
 a mistake. {WinJcfieldY. PacJcington, 2 Car. & P. 600.) 
 
 See j:)osf, Chap. XI., Art. 186, as to the duty of a railway com- 
 pany to have servants authorized to give directions and act for the 
 company on all occasions as the exigency of the traffic may require. 
 
 30. If the package delivered to the carrier does not 
 contain goods which are within the provisions of the 
 Carriers Act (see ^wst^ Chap. VI.), there is no occasion 
 to inform him, nor has he any absolute right in all 
 cases to insist on being informed as to its contents or 
 their value before he will accept it. (Ticlibiirnc v. 
 White, 1 Stra. 145 ; Crouch v. L. ^- N. W. By. Co., 23 
 L. J. C. P. 73.)
 
 THE DELIVERY OF THE GOODS TO THE CARRIER. 27 
 
 It may be reasonable, in some cases, that the carrier ^J^P-i7' 
 
 Art. o(J. 
 
 should have such information, and it is then his duty 
 
 to make inquiry, as if he wishes to have a reward pro- 
 portionate to their value, or to know whether they are 
 goods of that quality for which he has a sufficiently 
 secure conveyance. [Bafson v. Donovan, 4 B. & A. 31; 
 Morse v. Slue, 1 Vent. 190, 238 ; WeU v. Parje, 6 M. 
 & G. 196; per Parke, B., in WalJccr v. Jaclison, 10 M. 
 & W. 161 ; 12 L. J. Ex. 165.) 
 
 As to misrepresentation of value, sea post, Art. 33. 
 
 In JRiiei/ v. Home (5 Bing. 217), Chief Justice Best said, "If 
 the owner of the goods will not tell the carrier what his goods are, 
 and what they are worth, the carrier may refuse to take them." 
 A dictum which cannot he supported, per Maule, J., in Crouch v. 
 L. 8f N. W. By. Co. [supra). In that case, 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 pro- 
 visions 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 suspect articles to be of 
 a dangerous nature, they may open the packages." 
 
 In Great Northern Ey. Co. v. Shepherd (21 L. J. Ex. 286; 
 8 Exch. 30) and MacJclin v. Watcrhouse (2 Moo. & P. 319), it w^as 
 held that if the carrier did not ask the sender of the goods what 
 the goods were, and what they were w^orth, or if, when he asked, 
 and was not answered, he took charge of tho goods, ho waived the 
 right to know their contents and value, and was answerable for 
 their amount. 
 
 In Walker v. Jackson (supra), it was held that a party receiving 
 a parcel to bo carried, ought to inquire as to its contents ; and if
 
 28 THE LA W OF CARRIERS, 
 
 Chap. IV. notliing be done by the party delivering it to deceive him, or to 
 
 '- — '- give the transaction a false complexion, he is answerable for the 
 
 parcel. 
 
 See also Chap. X. 
 
 31. A person who sends an article of a dangerous 
 nature, to be carried by a carrier, is bound to take 
 reasonable care that its dangerous nature is communi- 
 cated to the carrier, and his servants who have to carry 
 it ; and if lie does not do so, he is responsible for the 
 probable consequences of such omission. [Farrant v. 
 Barnes, 31 L. J. C. P. 137; 11 C. B. N. S. 553.) 
 
 In that case the defendant caused a carboy containing nitric 
 acid to be delivered to the plaintiff, who was one of the servants of 
 a carrier, in order that it might be carried by such carrier for the 
 defendant, and the defendant did not take reasonable care to make 
 the plaintiff aware that the acid was dangerous, but only informed 
 him that it was an acid, and the plaintiff was burnt and injured by 
 reason of the carboy bursting whilst, in ignorance of its dangerous 
 character, he was carrying it on his back from the carrier's cart ; 
 and it was held, that the defendant was liable to the plaintiff in an 
 action for damages for such injury. 
 
 Willes, J., in delivering judgment, said, "I apprehend that a 
 person who gives a carrier goods of a dangerous character to carry, 
 which requu'e more caution in their carriage than ordinary mer- 
 chandise, as without such caution they would be likely to injure 
 the carrier and his servants, is bound in law to give notice of the 
 dangerous character of such goods to the carrier, and that if he 
 does not do so he is liable for the consequences of such omission. 
 An illustration of this is when a person puts on board a vessel goods 
 which are of a combustible and inflammatory nature, and therefore 
 dangerous, and it is clear that such person is liable to anyone who 
 is injured thereby, in consequence of the wTongful omission of such 
 person to give notice of the dangerous character of such goods when
 
 THE DELIVERY OF THE GOODS TO THE CARRIER. 29 
 
 lie puts tliem on board. {Brass v. 3Mtland, 2G L. J. Q. B. 49 ; Chap._^iv. 
 
 WiUimns v. Ead India Conqxouj, 3 East, 192.) No doubt what tlie • 
 
 court there laid down as to shipment on board a vessel, at least so 
 far as concerns any criminal responsibility, may not apply to a case 
 of goods sent by a carrier, as in the present case. The case of 
 putting goods on board a ship is a very strong and almost an 
 extreme case, but it may be used to test the princiiole ; and I am 
 of opinion that persons employing others to carry dangerous articles 
 are bound to give reasonable notice of the character of such articles, 
 and are hable, if they do not do so, for ihQ i^robable consequences 
 of such neglect of duty : " and Keating, J., said, " It seems to me 
 to be clear that a party who sends a dangerous material by a carrier 
 is bound to give reasonable notice that it is dangerous. Without, 
 however, defining the extent of such duty, I think it ought to go at 
 least to the extent of including the plaintiff, because ho was the 
 person whom the defendant may be considered to have actually 
 known was employed to carry the article, and to whom in fact it 
 was delivered by the defendant to be carried." 
 
 As to the carriage of dangerous goods by railway, see ^mt^ 
 Chap. X., Arts. 149—151. 
 
 32. Groods delivered to a carrier for conveyance 
 ought to be fully and legibly addressed, so that the 
 o^'ner or consignee may be easily known ; and if, in 
 consequence of omitting to do so, without any fault 
 on the part of the carrier, the owner sustains a loss, or 
 any inconvenience, lie must bear the same. {TJie 
 Huntress, Davies, 83 ; Bradley v. Diinipace, 1 H. & C. 
 521; 7 H. & N. 200; and cases in the Court of 
 
 Session, see 2^^^^} ^^'^- ^^^•) 
 
 As to the duty of the sender of goods to see that they are 
 properly packed, &eeposf, Chap. V., Art. 62. 
 
 33. It is the duty of every person sending goods 
 by a carrier to make use of no fraud or artifice to
 
 30 THE LA W OF OAIiBlEJlS. 
 
 ^Arf'ss^' t^eceivc him, whereby his risk is increasedj or his care 
 and diligence may be lessened. [Edivards v. Sherratt, 
 1 East, 604 ; Batson v. Donovan^ 4 B. & A. 21 ; Story 
 on Bailm. 519 ; Angell on Carriers, 252.) 
 
 If the consignor fraudulently conceals the value 
 and risk from the carrier, in order to be charged at 
 a lower rate for carriage, he cannot recover on ac- 
 count of a loss occasioned through such concealment. 
 {3I'Cance v. L. Sf N. W. Ry. Co., 31 L. J. Ex. ^^) 
 
 If any fraud or deceit he practised on the carrier, as if the real 
 value of the goods be deceitfully misrepresented to or fraudulently 
 concealed from him, whereby he is induced to regard them as of 
 trifling value, he is not liable in case they be lost or stolen from 
 him. {Kenrig v. Eggleston, Aleyn, 93 ; Tichhurne v. White, 1 Stra. 
 145 ; Gibbon v. Pagnton, 4 Burr. 229 ; Mayhew v. Eames, 1 Car. 
 & P. 550 ; 3 B. & C. 601 ; Bradley v. WaterJtouse, 3 Car. & P. 
 318 ; Walker v. Jaelmn, 10 M. & W. 161 ; Tyly v. Morrice, Carth. 
 485.) 
 
 If a person intentionally makes false answers to the carrier's 
 inquiries, the contract is void on account of fraud. {Walker v. 
 Jachoji, 10 M. & W. 161.) 
 
 34. A person delivering goods to a carrier to be 
 conveyed by him, is bound to jM'ocure them to be 
 booked, or to deliver them to the carrier himself, or to 
 some person who can be proved to be his agent for 
 the purpose of receiving them. [BticJcman v. Levi, 3 
 Camp. 414.) 
 
 If a carrier directs that goods shall be left at a 
 particular booking-office, or, if he has been in the 
 habit of universally undertaking the duty of carriage 
 in reference to goods or parcels left at a particular
 
 THE DELIVERY OF THE GOODS TO THE CARRIER. 31 
 
 place, lie is to be regarded as willing to receive goods ^}^^}7- 
 
 at that place to keep and to cany safely, and he will 
 
 consequently be answerable for the negligence of the 
 keeper of the booking-office, or of the person appointed 
 by him to receive the goods sent there to be forwarded. 
 (Coljyejjjyc}' Y. Good, 5 Car. & P. 380; Ujjston v. Slavic, 
 2 Car. & P. 598 ; and Southern JExjyress Co. v. Newhj, 
 36 Geo. 635.) 
 
 If it be the constant usage and practice for a carrier 
 to receive and carry goods left at a jDarticular place, 
 without any special notice of such deposit, a delivery 
 at such place will be a sufficient delivery to charge 
 the carrier, although no express notice was given to 
 him, or to his agent, of such deposit. (JSIerriman v. 
 Hartford and N. H. Ry. Co., 20 Conn. 354.) 
 
 Delivery to the carrier may also be made at a 
 different place, as well as at a different hour, from the 
 one established by notice and by usage. (^Phillips v. 
 Earle, 8 Pick. 182.) 
 
 If goods are placed in the carrier's cart or coach, without the 
 knowledge and acceptance of the carrier, his servants, or agents, 
 there being no bailment, ho cannot, of course, be responsible for 
 the loss of them. {Lovctt v. Ilohbs, 2 Show. 127 ; Leigh v. Smith, 
 1 Car. & P. 640.) 
 
 Where goods were left in the yard of an inn, where the carrier 
 and other carriers put up, but no actual dehvery to the carrier or 
 his servant was proved, it was deemed not a complete delivery to 
 the carrier so as to charge him with the custody. {Sehvay v. Hol- 
 lowa)j, 1 Ld. Paym. 46.) Where goods were delivered at a wharf 
 to an unknown person there, and no knowledge of the fact was 
 brought home to the wharfinger or his agents, this was held not to 
 be a sufficient delivery to charge him, either as a wharfinger or as
 
 32 THE LAW OF CARRIERS. 
 
 ^A^^'-u^" ^ carrier, with the ciistody of the goods. {Buclonan v. Len', 
 —^ — - 3 Camp. 414 ; Tron-bridge v. Chapiu, 23 Conn. 595.) 
 
 If a package is received by the agent of a common carrier for 
 conveyance at his suggestion, at a place other than the office of the 
 carrier, and is entered on the way-bill, the carrier will be held 
 answerable. {Phillips v. Earle, 8 Pick. 182.) 
 
 In Biirrell v. North (2 Car. & K. 680), Erie, J., said, "If the 
 defendant allow these persons to receive parcels, to be conveyed by 
 him as a carrier, this is quite enough." 
 
 The delivery will be sufHcient to bind the carrier, although the 
 owner of the goods travel by the same conveyance, and keep an 
 eye on the goods, if he does not exclude the care of the carrier. 
 {Rohinson v. Buiunore, 2 Bos. & Pul. 419 ; Clarhe v. Gray, 4 Esp. 
 177 ; and see cases in Chit. & T. p. 28, n. {cl) ; also 2)osty 
 Chap. XVII.) 
 
 35. A delivery to the servant, or duly authorized 
 agent of a common carrier, who is in the habit of 
 receiving joackages, is a sufficient delivery. (Jeremy 
 on Carr. 61.) 
 
 If an article be delivered to tlie servant of a carrier, 
 it must be to such an one as is intrusted to receive 
 goods, and not to one engaged in other duties. 
 {Blancliard v. Isaacs , 3 Barb. 388.) 
 
 See Cobban v. Boicuc, 5 Esp. 41, and Trowbridge v. Chapin, 23 
 Conn. 595. 
 
 As to who are held to be a railway company's servants, see ^;6>-s^, 
 Chap. XI., Art. 186. 
 
 36. In cases within the Carriers Act a delivery of a 
 parcel at any office, warehouse, or receiving house used 
 or ap23ointcd for the receiving of parcels, is sufficient 
 to render the carrier liable for its loss or injury, if the
 
 THE DELIVERY OF THE GOODS TO THE CARRIEU. 33 
 
 nature and value are declared. (11 Geo. 4 & 1 Will. 4, ^^^f}J- 
 
 V ^ Art. 36. 
 
 c. 68, s. 5.) 
 
 See post, Chap. VI. 
 
 37. It is not necessary to constitute a complete de- 
 livery to tlie carrier, that tlie goods should be left at 
 the usual place of delivery at or before the hour ap- 
 pointed for receiving them, in order that they may 
 be forwarded on the same day, if they are received at 
 a later hour under a sj^ecial contract that they shall be 
 forwarded the same day. [PicJcford v. Grand Junction 
 Rij. Co., 12 M. & W. 76G.) 
 
 This case shows that a special agreement to convey goods 
 within a certain time, or by a particular train, may sometimes be 
 inferred from circumstances. The company published and affixed 
 over the door of their goods receiving office a notice that all goods 
 received after 4 p.m. would only be forwarded the next day. A 
 person, who brought goods for carriage after that hour, asked the 
 company's weigher if there was time for the goods to proceed that 
 evening. The weigher said there was. The same person had on 
 previous occasions taken goods of the same kind to the station at 
 even a later hour, which were never refused as too late, and had 
 always been forwarded the same evening. And it was held that 
 was evidence of a special contract with the company to forward the 
 goods on the evening on which they were delivered for carriage. 
 
 An acceptance by the canier at an unusual place will be suffi- 
 cient to charge them. It seems always sufficient that the goods are 
 "put into the charge of the carrier." (Lord Ellenborough, C. J., 
 in Boehm v. Comhc, 2 M. & S. 172.) 
 
 What is a sufficient putting in charge of the carrier must always 
 be a question of fact, to be judged of by the jury, with reference 
 to all the circumstances of the case, and the usual course of busi- 
 ness in similar transactions, at the same place and with the same 
 
 M. U
 
 34 THE LAW OF OAllRIERS. 
 
 Chap. IV. carrier. And it will be found ordinarily to resolve itself into tliis 
 
 Art 37 
 '■ — '- inquiry, whether the owner of the goods did all to effect a secure 
 
 delivery to the carrier which it was reasonable to expect a prudent 
 
 man to have done under the circumstances. 
 
 38. The responsibility of a common carrier is fixed 
 by the acceptance of the goods whether the acceptance 
 be in a special manner, or according to the usage of 
 his business. 
 
 The responsibility commences with a com^^lete de- 
 livery of the goods to be forwarded, if accepted, with 
 or without a special agreement as to reward ; for the 
 obligation to carry safely on delivery carries with it a 
 promise to keep safely before the goods are put in 
 itinere. [Randleson v. 3Iurrajj, 8 A. & E. 109 ; Dale v. 
 Hall, 1 Wils. 281. See also Story on Bailm. ch. vii.) 
 
 An acceptance in some way is indispensable ; for if it appears 
 that there is no intention to trust the carrier with the custody of 
 the goods, he will not be held liable. {Brind v. Dale, 8 Car. & P. 
 207.) Many questions have arisen as to what amounts to a de- 
 livery, so as to put the goods into the constructive custody and 
 risk of the carrier. If the goods are delivered at the usual place 
 of receiving similar articles, and notice given to the proper servant 
 of the company, there is little chance for any question upon this 
 subject. 
 
 It is not necessary to a delivery that goods should be entered 
 upon any freight list or way-bill, or that the contract of hire 
 should be verified by any written memorandum. {Parker v. Gt. 
 West. By. Co., 7 M. & G-. 253 ; Citizen Banlc v. Nantucket Steam 
 Co., 2 Story, 16.) 
 
 In Packard v. Getman, 6 Cow. 757, it was held to be a sufficient 
 delivery if the goods intended for carriage are left by or near the 
 canal boat, according to the usages of business ; yet, with the
 
 THE DELIVERY OF THE GOODS TO THE CARRIEIi. 30 
 
 qualification, tliat sucli delivery must he accompanied with express Chap. iv. 
 
 , Art. 33. 
 
 notice to the master. 
 
 Of course it is no delivery to the carrier or acceptance by him if 
 the goods are placed in the carrier's vehicle without his knowledge 
 or consent. {Lovett v. Ilobbs, 2 Show. 127 ; Leifjh v. Smith, 1 Car. 
 & P. 640.) 
 
 If there is no agreement that the goods shall be delivered to the 
 carrier in a special manner the delivery must be in conformity 
 with the known course of the carrier's business, or it will not bind 
 him, see 2^08 f, Chap. X., Art. 163. 
 
 As to an acceptance of goods for carriage with an injunction 
 from sender that goods must be delivered before a particular time 
 for a particular event, as a race meeting, show, or otherwise, see 
 post, Chap. XII., Arts. 198, 199. 
 
 A person having goods to send by a railway applied to the 
 company for a truck, which was run on a side track to his ware- 
 house. The goods were loaded and the agent of the railway com- 
 pany notified. It was the custom of the company on receiving 
 such notice to have the packages counted, sign a bill of lading, and 
 then to send an engine and remove the truck. Before these steps 
 were taken the goods were burned, and it was held that there was 
 a delivery to the carrier. {Illinois JR//. Co. v. Siuyscr, 38 111. 3ol.) 
 
 39. In the absence of special limitation of liability 
 in the contract, an acceptance of goods makes the 
 carrier responsible for them mitil tliey reach the final 
 destination to whicli they are addressed or consigned. 
 {Duff V. Budd, 6 Moore (C. P.) 469 ; Miiscliamp v. L. 
 cV P. El). Co., 8 M. & W. 421 ; ILj.de v. Trent Nav. Co., 
 5 T. R. 389; Teats v. D. cV Newr// St. Co., 6 Ir. Rep. 
 C. L. 586.) 
 
 In the last case, Fitzgerald, J., said : — " We arc told that when a 
 common carrier receives goods addi-essed to a certain place, a 
 contract is implied on his part to carry to that i^lace, that is, how- 
 
 T> 2
 
 36 THE LAW OF CARRIERS. 
 
 Chap. IV. ever, only wliere the carrier is a general carrier ; Lut here the 
 
 defendants are carriers by sea only, every document produced 
 
 shows that they undertake to carry by sea only." 
 
 Where goods are transferred from the original contracting 
 carrier, his liability continues if such transfer is only accessory to 
 the discharge of his own duty, or the terms of his own contract. 
 {MacJiu V. L. 4' S. IF. Ry. Co., 2 Ex. 415.) 
 ^ee jjosf, Chap. XI. 
 
 40. Where the carrier delivers a ticket or other 
 notice to the person from whom he receives the goods 
 specifying the terms on which he agrees to carry, and 
 the customer assents (or does not dissent), the terms of 
 the notice will establish a special agreement, and will 
 exclude the common law contract so far as it is varied 
 by those terms. {Wi/ld v. Pickford, 8 M. & W. 443 ; 
 Gt. K Rfj. Co. V. Morville, 21 L. J. Q. B. 319 ; FUlliiJS 
 V. Edimrds, 28 L. J. Ex. 52; Zunz v. 8. E. Ry. Co., 
 L. R. 4 Q. B. 539.) 
 
 If the customer in such a case declines the terms, 
 and wishes to fix the carrier with the common law 
 liability, he must tender or offer a reasonable com- 
 pensation, and sue for the refusal to receive the goods. 
 {Can- V. Lane. 6f York. Rij. Co., 7 Exch. 707; 21 L. J. 
 Ex. 2G1 ; Garion v. Bristol cj' Exeter Rij. Co., 1 B. & 
 S. 112 ; 30 L. J. Q. B. 273, ante, Article 27, p. 24.) 
 
 Such a liability can only exist in the case of goods 
 which the carrier's public calling requires him to carry. 
 
 Such a specific notice is not " a public notice or declaration " 
 within sect. 4 of Carriers Act, set out pod., p. 72. ( Walker v. York 
 ^ N. Midland R>j. Co., 23 L. J. Q. B. 73 ; 2 E. & B. 750.) 
 
 41. A person who is a common carrier may at the 
 same time be a warehouseman, and after he receives
 
 THE DELIVERY OF THE GOODS TO THE CARRIER. 37 
 
 the goods, and before they are put in itinere, they may ^^^l'^; 
 he lost or injured. In such case, if the carrier receives 
 the goods into his own warehouse, for the accommo- 
 dation of himself and his customers so that the deposit 
 there is a mere accessory to the carriage, such person's 
 responsibility, as a common carrier, begins with the 
 receipt of the goods. (Per Buller, J., in ILjde v. Trent 
 Nav. Co., 5 T. R. -')89 ; Grand Tower, cS'c. 11,^. Co. v. 
 Ulbnan, 89 111. 244.) 
 
 That is, he then becomes responsible for all losses not occasioned 
 by inevitable casualty ; whereas, if he were a mere warehouseman, 
 he is not liable, unless he has been guilty of want of ordinary 
 care. [Foncard v. Fdtard, 1 T. E. 27.) 
 
 An innkeeper, if he is at the same time a common carrier is 
 liable, as such, for any loss to goods sent to his inn (and received 
 there to be forwarded), which happens before they are put in 
 transit. {Jdljde v. Trent Nav. Co., supra.) 
 
 In Hickox v. Nangatack Rij. Co. (31 Conn. 281), where a trunk 
 was delivered at a railway station at 11 a.m., to go in a train at 
 3 p.m., it was held that the railway company was liable as a carrier 
 from the time of delivery, although the trunk was not checked 
 imtil fifteen minutes before three, in accordance with the practice 
 of the company. 
 
 In Barron v. Ehlrcihje (100 Mass. 455), it was held that if anj^- 
 thing remained to be done by the consignor of the goods or bis 
 agents after the delivery of the goods to a railroad company, before 
 they were ready for transportation, the company were only re- 
 sponsible for them as Avarehousemen. 
 
 And ^QQ j)OHf, Chap, XYII. 
 
 42. Where the goods are delivered to the carrier 
 to be kept in his warehouse until further orders, the 
 liability of the carrier as a common carrier will not
 
 38 THE LAW OF CARRIERS. 
 
 Chap. IV. attach until the ffoods arc ordered to be carried. But 
 
 Art. 42. ^ 
 
 when this order is given, and also when the goods are 
 
 left in the first instance to be carried presently, the 
 responsibility of the carrier attaches at once. (S])ade 
 V. Hudson River Rfj. Co., 16 Barb. 383.) 
 
 Instructions to forward forthwith may be inferred 
 from the course of business in the absence of exj)ress 
 proof. (Moses V. Boston and Maine Ry. Co., 4 Foster, 71.) 
 
 43. If a person is at the same time a common 
 carrier and a forwarding mercha^nt, and he receives 
 goods into his warehouse to be forwarded according 
 to the future orders of the owners, if the goods are 
 lost or damaged by fire, or otherwise, before such 
 orders are received, or the goods are put in transit, he 
 is not chargeable as a common carrier, but only as a 
 warehouseman. [Forward v. Pittard, 1 T. R. 27 ; Piatt 
 V. Hibhard, 7 Cowen, 499 ; RosJcell v. Waterhouse, 2 
 Stark. 4G1 ; Broo/c v. Pickwith, 4 Bing. 218.) See also 
 the American cases cited in Angell, p. 125. 
 
 A warehouseman is not liable unless he has been guilty of 
 negligence. [Foricard v. Fitiard, supra.) In that case twelve 
 pockets of hops had been accepted at "Weyhill, where an annual 
 fair was held, to carry to Sbaftsbury by road. The hops were 
 stored by the carrier in a booth, which took fire from a neigh- 
 bouring 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 the act of Grod, as lightning, and 
 that the carrier was responsible. 
 
 It would seem that a wharfinger is bound only to the same 
 degree of care as a warehouseman, and is not liable to the same 
 extent as a common carrier. {Piatt v. Hihhard, suptra.)
 
 THE DELIVERY OF THE GOODS TO THE CAnRIEU. 39 
 
 44. A carrier of o'oods is always bound to follow ^^^p- ^^• 
 
 ^ -^ Art. 44. 
 
 instructions given by the owner or Ins agent Avliere 
 
 reasonably practicable. 
 
 Where an order is given to a carrier antecedently 
 to the delivery of the goods to him, who assents to 
 deal with them when delivered in a particular manner, 
 a duty is imposed on him on the receipt of the goods 
 to deal with them according to the order previously 
 given ; and the law implies a promise by him to per- 
 form such duty. [Strceter v. Ilorlock^ 1 Bing. 134 ] 
 7 Moore (C. P.) 283.) 
 
 See as to the consignor's right to alter the destination of the 
 goods, or to demand their delivery Lack to himself, post, Chap. 
 YII., Art. 93. 
 
 45. A licence to deal in game cannot be held by 
 '' the owner, guard, or driver of any mail coach, or 
 other vehicle employed in the conveyance of the 
 mails of letters, or of any stage coacli, stage waggon, 
 van, or other public conveyance, or by a carrier or 
 higgler," or by anyone in the employment of any of 
 the above-mentioned persons. (1 & 2 Will. 4, c. 32, 
 s. 18.) 
 
 Some of the earlier railway companies' special Acts made the 
 officers of the company hable to a penalty for carrying on the 
 railway nets and guns for destroying game. (See Appendix No. 
 31, Table XVIIL, to Second Report of the Select Committee on 
 Railways, 1839.)
 
 40 THE LAW OF CARRIERS. 
 
 CHAPTER V. 
 
 THE OBLIGATIONS OF A COMMON CARRIEE DURING THE 
 TRANSIT OF THE GOODS. 
 
 Chap. V. 46. A coDimon carrier is lialjle by the custom of 
 
 '■ — - the realm in case of loss of or injmy to the goods, 
 
 unless the loss or injury arises from : — 
 
 (1) The act of God. 
 
 (2) The Queen's enemies. 
 
 (3) Contributory negligence on the part of the 
 
 bailor. 
 
 (4) Inherent vice in or natural deterioration of the 
 
 thing carried. 
 
 As to the commencement of the carrier's risk, see ante, Art. 38. 
 As to the termination of, see^;os^, Art. 96, 
 
 It is a general maxim in law, that Actus Dei nemini facit injunam, 
 that is, the act of God is so treated by the law as to affect no one 
 injuriously. 
 
 " To give due security to property, the law has added to the 
 responsibility of a carrier which immediately arises out of his 
 contract to carry for a reward, namely, that of taking all reasonable 
 care of it, the responsibility of an insurer. From his liabiHty as 
 an insui'er the carrier is only to be relieved by two things, both so 
 well known to all the country when they happen, that no person 
 would be so rash as to attempt to prove that they had happened 
 when they had not, namely, the act of God and the king's enemies." 
 (Per Best, C. J., in FJle>/ v. Ilonie, 5 Bing. 217.) 
 
 Accident produced by any physical cause which is iiTcsistible,
 
 THE CONVEYANCE OF THE GOODS BY THE CARRIER. 41 
 
 such as a loss by lightning or storms, by the perils of the sea, by ^'^^P-^- 
 
 •11 • 1 Art. 4o. 
 an inundation or earthquake, or by sudden death or illness, is the 
 
 "act of God." (Story on Bailm.) 
 
 The peculiar responsibility of the common carrier is usually said 
 to arise out of the custom of the realm. This is a prevalent mode 
 of expression to account for a legal principle of which lawyers do 
 not know or care to acknowledge the real source. And the real 
 source is to be found in the Eoman law. The principles of the 
 Roman law upon the subject were based upon the well-known 
 passage in the edict of the Prcctor : " Nauta3 caupones stabularii 
 quod cuj usque salve fore receperint, nisi restituent, in eos judicium 
 dabo " [D. iv. 9]. And the public utility of the principle led to 
 its extension to carriage by land as well as by sea, and its adoption 
 into the law-merchant of the civilized world. (See Campbell on 
 Negligence, p. 35.) 
 
 " It appears from all the cases for one hundred years back, that 
 there are events for which the carrier is liable, independently of 
 his contract. By the nature of his contract he is liable for all due 
 care and diligence, and for any negligence he is suable on his con- 
 tract ; but there is a further degree of responsibility by the custom 
 of the realm, that is, by the common law ; a carrier is in the natiu'e 
 of an insurer." (Per Lord Mansfield, in Foncanl v. PittanI, 1 
 T. E. 27, 33.) 
 
 " The law of England has from the earliest times established a 
 broad distinction between the liabilities of common carriers of 
 goods and of passengers. Indeed, the responsibility of the carrier 
 to re-deliver the goods in a sound state can attach only in the case 
 of goods. This responsibility (like the analogous one of innkeepers) 
 has been so long fixed and is so universally known that carriers of 
 goods undertake to carry on contracts well understood to compre- 
 hend this implied liability. If it had not been the custom of the 
 realm, or the common law declared long ago, that carriers of goods 
 should be so liable, it would not have been competent for the 
 judges in the present day to have imported such a liability into 
 such contracts on reasons of supposed convenience." (Per Mon-
 
 42 THE LA W OF CARRIERS. 
 
 Chap. V. taffiie Smith, J., in Redhead v. Midland R>/. Co., 38 L. J. Q. B. 
 
 The exception of foreign enemies is derived from the principle, 
 that in that particular case the carrier can have no remedy by 
 action against the hundred ; it includes under that terra only those 
 foreign enemies of the Queen which are such by open declaration 
 of war, and not such domestic enemies as are considered so by 
 reason of any temporary insurrection or riot ; in which cases, as 
 the county or hundred are responsible for not preserving the peace, 
 the carrier might recover under the statutes against them for losses 
 occasioned thereby. (Jeremy on Carriers, p. 67 ; Chit. & T. p. 38. 
 See post, Ai't. 49.) 
 
 47. In order to come within the exception of loss 
 by the act of God, the loss need not have been caused 
 directly and exclusively by such a direct and violent, 
 and sudden and irresistible act of nature as the carrier 
 could not by any amount of ability foresee, or (if he 
 could foresee it) could not by any amount of care and 
 skill resist so as to prevent its effect. 
 
 A loss is a loss by the act of God if it is occasioned 
 by the elementary forces of nature, directly and ex- 
 clusively, unconnected with the agency of man or 
 other cause ; and if it can be shown that it could not 
 have been prevented by any amount of foresight, 
 pains and care reasonably to be required of the carrier, 
 he is then not liable for the loss. 
 
 If the loss is occasioned partly by the act of God as 
 above defined, and partly by some other cause (as 
 for example a defect in the thing carried), which, 
 if it had been the sole cause of the loss, would have 
 furnished a defence, yet if both together formed an 
 irresistible cause of the loss in the sense that by no
 
 THE CONVEYANCE OF THE OOODS BY THE GARRIEU. 43 
 
 . V. 
 
 Art. 47. 
 
 reasonable precaution on the part of the carrier could chap 
 the damage have been prevented, the carrier is not 
 liable; and (per Cockburn, C. J.) in such cases a common 
 carrier has done all that is reasonably to be required 
 of him if he has used all the means to which prudent 
 and experienced carriers ordinarily have recourse to 
 ensure the safety of goods entrusted to them under 
 similar circumstances. {Nugent v. Smith, 1 C. P. D. 
 441 ; 45 L. J. C. P. 697.) 
 
 In the Court below it was held that to constitute the " act of 
 God " a loss must arise from " such a direct and violent and sudden 
 and irresistible act of nature " as could not he foreseen, or, if fore- 
 seen, prevented." (Per Brett, J., 1 C. P. P. 34.) 
 
 In that case the defendant, a common carrier by sea, received 
 from the plaintiff a mare to be carried from London to Aberdeen. 
 In the course of the voyage the ship met with rough weather, and 
 the mare, being much frightened and struggling violently, suffered 
 injuries of which she died. No negligence was proved against the 
 defendant, but the Common Pleas Division held him to be liable, 
 on the ground that the rough weather was not so violent and 
 unusual as to amount to the " act of Cod," nor was the strugghng 
 of the mare alone enough to show that it was from her inherent 
 vice that she was injured. But the Court of Appeal reversed this 
 decision. 
 
 A fall of rain, of a kind which could not reasonably have been 
 anticipated, amounts to lis major. {Nichols v. Marsland, L. P. 10 
 Ex. 258 ; 2 Ex. D. 1 ; 44 L. J. Ex. 114 ; 4G L. J. Ex. Div. 174.) 
 
 The act of Cod means not merely an accidental circumstance 
 but something overwhelming {Oaldeij v. Portsmouth, S^c. Steam- 
 pacUt Co., 25 L. J. Ex. 101), which could not happen by the 
 intervention of man, as storms, lightning, and tempests. {Forward v. 
 Pittard, 1 T. E. 33.) 
 
 A frost of extraordinary severity has been held to constitute vis
 
 44 THE LA W OF CARRIERS. 
 
 Chap. V. major, or, in this sense, an act of God {Bh/th v. Birmhujham Water- 
 
 '- — '- works Co., 11 Ex. 781) ; so, too, has a great and unexpected fall of 
 
 snow {Briddoii v. Gt. N. By. Co., 28 L. J. Ex. 51) ; as, also, a 
 violent tempest. [Niifjent v. Smith, ante; Biver Wear Commis- 
 sioners V. Adamson, 2 App. Cas. 743, 749 ; 47 L. J Q. B. 193.) 
 
 In Wituj V. New York and Eric B//. Co. (1 Hilt. 235), it was 
 held that the freezing of perishable articles by reason of an unusual 
 intensity of cold was not such an intervention of the vis major as 
 excused the carrier, if the accident might have been prevented by 
 the exercise of due diligence and care upon his part ; that the fact 
 that the carrier had done what was usual, was not sufficient to 
 exempt him from a charge of negligence ; that he must show that 
 he had done what was necessary to be done under all the circum- 
 stances. 
 
 48. A common carrier is not bomicl to use extra- 
 ordinary efforts or incur extra expense in order to sur- 
 mount obstructions caused by the act of God, as a fall 
 of snow. {Briddon v. Gt. N. Ry. Co., 28 L. J. Ex. 51. 
 See;;o5f, Art. 174.) 
 
 49. If the loss or injury to the goods by the act of 
 God or the Queen's enemies is conduced by the 
 carrier's negligence or want of skill, or by insuffi- 
 ciency of vehicle, the carrier is liable. (Angell on 
 Carriers, p. 48; Gill v. Man., Sheff., 6fc. By. Co., 42 L. J. 
 Q. B. 89 ; L. R. 8 Q. B. 186: per Lush, J.) 
 
 This rule of the responsibility of common carriers 
 includes not only damage occasioned by the act of 
 God as operating upon, or as secondary to, the negli- 
 gence or misfeasance of the carrier or his servants, 
 but extends to the intervention of the agency of a 
 third person. (Angell, p. 175.)
 
 THE CONVEYANCE OF THE GOODS BY THE CARRIER. 45 
 
 If goods are taken "by the public enemy, tlie carrier is liable if Chap. V. 
 
 bis negligence has contributed to the loss. [HoUadcnj v. Kcnnard, '■ 
 
 12 Wall. 254 ; Amies v. Stevens, 1 Stra. 128 ; Foncard v. Pitlard, 
 1 T. E. 27; IF/ui/ki/ v. IFrcn/, 3 Esp. 74.) 
 
 It is the carrier's duty to do what he can, by reasonable skill 
 and care, to avoid all perils, including the excepted perils. If, 
 notwithstanding such skill and care damage does occur, he is 
 relieved from liability ; but if his negligence has brought about 
 the peril, the damage is attributable to his breach of duty and the 
 exception does not aid him. (See 6'///',s' case, sifpra.) 
 
 A common carrier impliedly promises that he will provide con- 
 veyances reasonably fit for the purpose to which they are put, and 
 servants of competent skill. {L//on v. Mells, 5 East, 428 ; Camden, 
 8fc. Ry. Co. V. Burke, 13 "Wend. 611 ; Chippendale v. Lane. ^ Yorli. 
 By. Co., 12 L. J. Q. B. 22.) 
 
 60. The act of God does not exonerate the carrier 
 if there be negligence, aj^art from which the act of 
 God would not have resulted in the loss. (Fhillips 
 V. Clarh, 2 C. B. N. S. 156.) 
 
 61. If the goods have been wetted, destroyed, or 
 swept away by rains and floods, the circumstances 
 attendant thereuj^on must be regarded, in order to 
 determine whether it has been occasioned by the act 
 of God, or the act, misconduct, or negligence of the 
 carrier. [Smith y. Shepherd, cited in Abbott on Ship- 
 ping, 12th ed. p. 328; Amies y. Stevens, 1 Stra. 128.) 
 
 In order that an extraordinary natural event, such as a very 
 high tide, should be, in the legal sense of the words, an act of 
 Grod, it is not necessary that such an event should never have 
 hapijened before ; it is sufficient that its happening could not have 
 been reasonably expected. If such an event has happened once, 
 but there is nothing to lead to the inference that it is likely to
 
 46 THE LA W OF CARRIERS. 
 
 Chap. V. reour, it does not, if it happens a second time, cease to be an act of 
 
 Art. 51, 
 
 God. [JSlfrophosp/iafe, 8fc. Manure Co. v. London and St. Kathcrine 
 
 DocU Co., 9 Ch. D. 503 ; Read v. Spalding, 30 N. Y. 630 ; and 
 see Redfield on Carriers, p. 19.) 
 
 52. A common carrier, being an insm^er of goods, 
 is responsible for damage or loss occasioned hj acci- 
 dental fire, resulting neither from the act of God, nor 
 of the Queen's enemies. (Per Dallas, C. J., in Thorogood 
 V. 3£arsh, 1 Gow. 105 ; Collins v. B. Sf Ex. Rfj. Co., 29 
 L.J. Ex. (H. L.)41.) 
 
 He is liable for tlie loss of the goods occasioned by 
 fire, even though, the fire was not occasioned by any 
 actual negligence of the carrier, and did not arise upon 
 his premises. {Forivard v. Pittard, 1 T. R. 27.) 
 
 See also Dale Y.IIall, 1 Wils. 281 ; 1 Inst. 80 ; Covinton v. Willan, 
 Gow. 115. 
 
 A loss througli fire occasioned by lightning would be a loss by 
 the act of God. {Foncard v. Fittard, 1 T. R. 27.) 
 
 In Miller v. Steam Navigation Co., 6 Seld. 431, the carrier was 
 held liable for a loss by fire, although the proximate cause of the 
 loss was the driving of the fire from a distance to the goods by a 
 sudden gust of wind. 
 
 As to liability for goods destroyed by fire in a carrier's warehouse, 
 see cmte, p. 38. 
 
 In 7ns. Co. v. Ful. Sf Cin. Ey. Co., Disn. 480, it was held 
 that in losses by fire the carrier is prima facie liable. (See Redfield 
 on Carriers, p. 20.) 
 
 By the Roman law the carrier's responsibility extended to fire ; 
 and the policy of the English law has adopted a similar rule, on the 
 ground that fire may be coUusively raised in order to favour depre- 
 dations. Until the passing of the Mercantile Law Amendment 
 Act (19 & 20 Vict, c. 60, s. 17), a different rule prevailed in Scot- 
 land, fire being regarded as damnum fatale.
 
 THE CONVEYANCE OF THE GOODS BY THE CARRIEB. 47 
 
 53. A carrier is liable where the loss or damage is c^^apj. 
 occasioned by the irresistible force and violence of 
 robbers and mobs. ( Coggs v. Bernard^ 1 Smith, L. C. ; 
 FomardY. PUtard, 1 T. R. 27.) 
 
 In Forward v. Pittard, Lord Mansfield puts the case of the riot 
 in London, of 1780, by which the great destruction of loroperty in 
 that city could not be prevented by a considerable military force, as 
 even an instance which could not be received to protect, in that 
 capacity, a common carrier. 
 
 Lord Mansfield held, in Barclay v. CaculIa-y-Gand (3 Doug. 389, 
 cited 1 T. E. 33, nom. Barclay v. Ilcygena), that the master of a 
 ship on board of which goods have been laden in the Eiver Thames 
 for a foreign port, is liable for the loss of the goods occasioned by a 
 forcible robbery wbile the ship is lying in the river. " At first the 
 rule appears to be hard, but it is settled on principles of policy, and 
 when once estabhshed every man contracts in reference to it, and 
 there is no hardship at all." 
 
 54. Where goods entrusted to a common carrier, 
 to be carried for reward, are lost otherwise than by 
 the act of God or the Queen's enemies, it is a prweumjytio 
 juris et de jure that they are lost by negligence, fraud, 
 or connivance on his part. (Bull. N. P. 70, n. (a).) 
 
 " This is an extremely severe presumption, but one which public 
 pohcy appears to require ; although both by the common law, and 
 by virtue of various modern statutes, common carriers can in many 
 cases limit their liability." (Best on Evidence, p. 545.) 
 
 55. A common carrier by land or by water (both 
 inland and sea) is liable for all losses or accidents to 
 the goods in bis possession, except those occasioned 
 by causes mentioned in Art. 46, although there may
 
 48 THE LA W OF CARRIERS. 
 
 Chap. V. have been no actual neorlifrence on liis part, and the 
 
 Art. 55. _ ^ . . 
 
 injury may have been occasioned by the negligent 
 
 act of a third joerson. [Trent New. Co. v. Ward, 3 
 Esp. 127; 4 Doug. 287; Dale v. Hall, 1 Wils. 282.) 
 
 In Trod Nav. Co. v. Wood, supra, the ship of a common carrier, in 
 a voyage from Hull to Gainsborough, drove on to an anchor in the 
 River Trent, and was in consequence sunk, and the goods on hoard 
 injm^ed, and the accident was occasioned by the neglect of the third 
 party in not having his buoy out to mark the place where his 
 anchor Lay, it was held that the carrier was hound to make good 
 the loss. Ashurst, J., said, " If this sort of negligence were to 
 excuse the carrier when he finds that an accident had happened to 
 goods from the misconduct of a third person, he would give himself 
 no further trouble about the recovery of them." 
 
 If the misconduct of the third person is caused by the orders of 
 the owner of the goods, the carrier of course will not be responsible. 
 {Buttcricorth v. Brownloic, 34 L. J. C. P. 267.) 
 
 56. A common carrier from a place within to a 
 place without the realm, is subject to the same liabili- 
 ties at common law as a common carrier who carries 
 only within the realm, and is, therefore, bound to ac- 
 cept all goods which are reasonably tendered to him 
 for conveyance between those limits. ( Crouch v. L. Sf 
 N. W. By. Co., 23 L. J. C. P. 73 ; 14 C. B. 255 ; Nugent 
 V. Smith, ante. Art. 47.) 
 
 By 31 & 32 Vict. c. 119, carriers by land and sea may limit their 
 liability. (See jjost, Chap. XL, Art. 173.) 
 
 In Crouch v. L. 8^ N. W. By. Co., Jervis, C. J., said, " If it is 
 admitted that when once they have held themselves out as common 
 carriers, there is engrafted on their acceptance of the goods the 
 common law liabihty to carry, even if they are to carry beyond the 
 realm ; it would seem, also, that they are subject to the other part
 
 THE CONVEYANCE OF THE GOODS BY THE CARRIER. 49 
 
 of the common law liability, namely, to accept within reasonable ^^^PrY* 
 
 limits all goods that may be tendered to them to carry. If, there- ' 
 
 fore, being carriers within the realm, they are bound to take the 
 goods offered to them to be carried within the realm, it follows 
 that if they profess to be carriers beyond the realm, being them- 
 selves at the time they so profess within the realm, they are bound 
 to accept and to carry goods beyond the realm upon the terms on 
 which they profess to contract." 
 
 As to goods received without the realm, see B ramie ij v. >S'. E. Rij. 
 Co., 31 L. J. C. P. 286 ; Lc Contcur v. L. S^- S. IF. Ri/. Co., L. E. 
 1 Q. B. 54 ; 35 L, J. U. B. 40. 
 
 67. If the owner of the goods assumes the care 
 and custody of tliem himself, instead of trusting them 
 to the carrier, the carrier is not liable for the loss. 
 {Brind v. Dcdc^ 2 M. & W. 755 ; India Co. v. Fidkn, 1 
 Stra. 690; Tower v. Utka cj' S. %. Co., 7 Hill, N. Y., 
 47. See;;^^^, Chap. XVII.) 
 
 But the fact that the owner or his servant accom- 
 panies the goods to keep an eye upon them, if he does 
 not exclude the care of the carrier's servants, will not 
 excuse the carrier. [Robinson v. Dunmore^ 3 Bos. & 
 Pul. 416.) 
 
 But a can-ier may, of course, be liable upon a special contract 
 for the safe delivery of the goods, and therefore where A. sent 
 goods to B. who said, " I will warrant they shall go safe," it was 
 held that this amounted to a warranty, and B. w^as liable for 
 damage sustained by the goods, notAvithstandiug A. sent one of his 
 own servants inB.'s cart to look after them. [Robinson v. Dunniorc, 
 supra.) 
 
 58. The duty of a common carrier to cany safely 
 is independently of any contract made by him, and no 
 
 M. E
 
 60 THE LAW OF CARRIERS. 
 
 Chap. V. contract need be proved in an action founded on tlie 
 
 Art. 68. ^ 
 
 custom of the realm. [Foz.^l v. 81iipton^ 1 P. & D. 4 ; 
 
 8 A. & E. 963.) 
 
 59. The loss of or injury to the goods is frima 
 facie presumed to be due to a cause for which the 
 carrier is responsible, and the onus prolandi is on the 
 carrier to exempt himself. 
 
 As to burden of proof where the carrier limits his liability by 
 special contract, see ^;osi^, Art. 86. " Everything is negligence 
 which the law does not excuse." {Dale v. Hall, 1 Wils. 281.) 
 
 " It is enough to show the damage done in order to render the 
 common carrier liable ; and the burden of proof is on him to show 
 that it was occasioned by such cause as will exempt him from 
 liability." (Per Harper, J., in Ewart v. Sweet, 2 Bailey, 16. See 
 also American cases in Angell, p. 187). 
 
 60. A common carrier is not liable for any losses 
 which arise from the ordinary wear and tear and 
 chafing of the goods in the course of their transporta- 
 tion, or from their ordinary loss, deterioration in 
 quantity or quality in the course of the transit, or 
 from their inherent natural infirmity and tendency to 
 damage, or which arise from the negligence or fraud 
 of the owner or consignor thereof. (Story on Bailm. ; 
 per Willes, J., in G. W. E//. Co. v. Blower, L. P. 7 C. P. 
 655 ; 41 L. J. C. P. 268 ; Hutchinson v. Gwjon, 28 L. J. 
 C. P. 63 ; 5 C. B. 149.) 
 
 Where the deterioration is caused by the default of 
 the carrier, he is liable. {Wilson v. Lane. Rij. Co.,
 
 THE CONVEYANCE OF THE GOODS BY THE CARRIER. 5 J 
 
 30 L. J. C. P. 282 ; Gill v. 3L S. ^- L. Ujj. Co., L. R. 8 ^^apj. 
 Q. B. 186 ; ^2 L. J. Q. B. 89 ; G. TF. Ihj. Co. v. Bloiver, — 
 
 If the goods to be carried require airing or venti- 
 lating during the journey, for the purpose of preser- 
 vation, as fruit and such like articles do, the neglect 
 of this duty will render the carrier liable. {Davidson 
 V. Gwynnc, 12 East, 381.) 
 
 If a load of goods weighing a certain weight be delivered to a 
 common carrier to be carried for hire, and the load on its arrival at 
 its destination is deficient in weight, there is a i^rimd facie pre- 
 sumption of negligence on the part of the carrier, which the latter 
 must rebut by showing that the deficiency of weight arose from 
 causes over which he had no control. {Hawkes v. Smith, Car. & 
 M. 72.) 
 
 The carrier is not liable for any damage from the ordinary 
 decay of oranges, or other fruits in the course of their journey. 
 (3 Kent's Com. 299—301 ; Ship Howards. Wissman, 18 How. 231 ; 
 The Brig Collcnher(j^ 1 Black. 170.) But the carrier is, never- 
 theless, bound to take all reasonable care of such hona pentura, and 
 if they require to be aired or ventilated, he must take the usual 
 and proper methods for this purpose. (Abbott on Shipp. 371 ; 
 Davidson v. Gu-ynne, 12 East, 381 ; The Colknhcyg, supra.) 
 
 The carrier is not responsible for the ordinary diminution or 
 evaporation of liquids, or the ordinary leakage of the casks, in 
 which the liquors arc put, in the course of transportation, or from 
 their acidity or tendency to effervesce ; as his implied obligation 
 does not extend to such cases [Nelson v. Woodruff, 1 Black. 
 (U. S.) 156), unless to prevent loss from such causes is within his 
 control. 
 
 If a pipe of wine, upon the ferment, burst in the wagon, when 
 gently driven, the carrier is not liable ; for the fault is in the wine, 
 and the insurer does not insure against the defects of the thing 
 itself. {Farrar v. Adams, Bull. N. P. 69.) 
 
 e2
 
 52 THE LA W OF CA BRIERS. 
 
 Chap. V. ]3ut if a cask of brandy should leak during the journey, and the 
 Art. 60. 
 carrier take no means to stop the leak when it comes to his know- 
 ledge, he would be liable for the loss. {Beck v. Evans, 16 East, 
 244 ; 3 Camp. 267.) 
 See also post, Chap. X. 
 
 61. A condition that the carrier shall not be liable 
 "■'for leakage or breakage" only exempts him for 
 liability for leakage or breakage which is the result of 
 accident, and not where it is caused by his negligence 
 or want of care. (Phillips v. Clarlc, 2 C B. N. S. 150 ; 
 Cz-ech V. G. iS. Nav. Co., L. R. 3 C. P. 14.) 
 
 63. A common carrier is not responsible for damage 
 accruing to the goods carried from improper packing 
 by the sender; at all events, where there has been 
 nothing to indicate to the carrier the defective nature 
 of the packing. [See post, Art. 155.) 
 
 But the carrier cannot absolve himself from liability, 
 where he has the means of observing the risk he runs 
 in accepting goods in the state in which they are j^re- 
 sented to him, and with such knowledge gives a 
 receipt. [Beck v. Evans, 16 East, 244; 3 Camp. 267; 
 Stuart V. Crau'leif, 2 Stark. R. 323.) 
 
 Insufficient packing does not necessarily relieve the carrier, but 
 it may materially affect the amount of damage to be recovered. 
 {Higginhotham v. 6-7. ^Y. lly. Co., 2 F. & F. 796 ; Cox v. L. ^ N. W. 
 Ey. Co., 3 F. & F. 77.) 
 
 In Wchh V. Page (12 L. J. C. P. 329), Cresswell, J., said, 
 " Though the defendant was not a common carrier, yet I think it 
 was undoubtedly a part of his duty to see that the goods were 
 properly packed, as well as properly carried."
 
 THE CONVEYANCE OF THE GOODS BY THE CARBIEB. 53 
 
 In America it has been held that it is no excuse for the carrier ^^^^P^J- 
 
 that a greyhound delivered to him, and for which he gave a receipt, 
 
 was not properly secured at the tune of delivery. He was bound 
 to know what was a proper fastening, and advise the owner if any- 
 thing more was required. {Stuart v. Craicle;/, 2 Stuart's L. C. 
 323. See also Shriver v. Sioux City ^ B>j. Co., 2-1 Minn. 50G.) 
 
 63. A common carrier, when lie is expressly di- 
 rected to carry goods delivered to him in a particular 
 manner and position, is bomid to carry them in that 
 manner and position; and if he carries them other- 
 wise and they are lost or damaged, the burden will bo 
 upon him to prove that the loss or damage was in no 
 decree attributable to his breach of contract, but was 
 occasioned solely by one of the exemptions mentioned 
 in Art. 4G. {Hastings v. Pepper, 11 Pick. 41.) 
 
 In that case a box containing a glass bottle filled with the oil of 
 cloves was delivered to a common carrier, marked " Glass — with 
 care— this side up"; and it was held, that this was a sufficient 
 notice of the value and nature of the contents, to charge him with 
 the loss of the oil occasioned by his disregarding such direction. 
 It was proved that the box was stowed in such a manner that the 
 marked side was not kept up, and consequently the large bottle, 
 which was broken by some means in the passage, after it was 
 stowed and before its arrival, bore its weight upon its side, and 
 not its bottom. (And see Saijer v. Portsmouth Ry. Co., 31 Maine, 
 228.) 
 
 64. If any brittle or perishable commodity, requir- 
 ing great care for its safe conveyance, is bailed to a 
 carrier, enclosed in boxes, and no directions are given 
 as to how the boxes are to be carried, and no notice of
 
 54 THE LA W OF CARRIERS. 
 
 Chap. V. the peculiar nature of their contents, the carrier is 
 
 ■ ^^^•^^- only bound to take the ordinary care of the boxes 
 
 which their general character and a^^pearance seem to 
 
 require. (Angell on Carriers, p. 253 ; Wehh v. Page^ 6 
 
 Scott, N. R. 956.) 
 
 In such a case the owner of the boxes is culpable for concealing 
 the peculiar nature of their contents. (See Baldinn v. London, 
 Chatham ^ Dover By. Co., 9 Q. B. D. 582 ; post. Art. 159. See also 
 Coxe V. Heidcij (19 Pa. St. 243), where the owner represented the 
 goods to be of much less value than they were, and thereby induced 
 the carrier to exercise less watchfulness in regard to them. See 
 also Relf-j. Rap^j, 3 Watts & Serg. 21.) 
 
 65. If goods are injured by any cause for which 
 the carrier is not responsible, he is still bound to take 
 all proper and reasonable care of them, to preserve 
 them from further injury. He is not bound to repair 
 them. ( Charleston S. B. Co. v. Bason^ Harper, p. 262 ; 
 Notara v. Henderson, L. E. 7 Q. B. 225; 41 L. J. 
 Q. B. 158.) 
 
 But if the goods are wet he should, if possible, unpack and diy 
 them. {Chouteaux v. Leech, 18 Pa. St. 224.) And to do this he 
 may open the packages in which the goods are. {Bird v. 
 Cromu-eU, 1 Miss. 81.) He is not, however, bound to delay his 
 journey for this purpose. (See American cases, cited in Angell, 
 p. 202. ^QQpost, Chap. XL, Art. 184.) 
 
 66. A common carrier is liable if the goods entrusted 
 to him be damaged by rats, although the carrier may 
 have kept cats on board the vessel in which the goods 
 are to be carried, or in his warehouse where they may
 
 THE CONVEYANCE OF THE GOODS BY THE CARRIER. 55 
 
 be deposited bj him in his character of carrier. ^j.*Pgg' 
 {Laveroni v. Dnirfj, 8 Ex. 166; WJiite v. Ilumplienj^ 
 11 Q. B. 43 ; Dale v. Hall, 1 Wils. 281.) 
 
 67. A carrier who fraudulently takes or converts 
 goods entrusted to him for conveyance to his own use 
 or the use of any person other than the owner, is 
 guilty of larceny, altliough lie do not break bulk or 
 otherwise determine the bailment. (24 & 25 Vict, 
 c. 96, s. 3.) 
 
 68. '' No caiTier with any horse or horses, .... 
 shall travel upon the Lord's day, commonly called 
 Sunday, upon pain that every person so offending 
 shall lose and forfeit 20 shillings for every such 
 offence." (3 Car. 1, c. 2.) 
 
 The di'iver of a van, travelling to and from distant towns (as 
 London and York), was held to be a carrier within the meaning of 
 this Act. [Eximrte Middleton, 3 B. & C. 164.) Neither this Act, 
 nor 29 Car. 2, c. 7, make it illegal for a stage-coach to run on 
 Sunday, {^andiman v. Breach, 7 B. & C. 96.) 
 
 Drivers of hackney coaches may ply, and are compellable to 
 drive, on a Sunday. (1 & 2 Will. 4, c. 22, s. 37.) As to parlia- 
 mentary trains, see 7 & 8 Yict. c. 85, s. 10.
 
 56 THE LA W OF CARRIERS. 
 
 CHAPTER VI. 
 
 THE LIMITATION OF THE OBLIGATIONS OF A COMMON CAKRIER 
 
 OF GOODS. 
 
 1. Bij the Carriers Act, 1830 Arts. 69—83. 
 
 2. By Special Contract or Notice Arts. 84 — 90. 
 
 1. B?j the Carriers Act, 1830. 
 
 Chap. VL g9 A common carrier by land, for hire, is not liable 
 
 Art. 69. . . .; ' 7 
 
 for the loss of or injury done to — 
 
 (1) Bank notes of any bank in England, Scotland, 
 
 or Ireland. 
 
 (2) Bills of exchange. 
 
 A document in the form of a bill of exchange, accepted by the 
 person to whom it was directed, but having no drawer, and found 
 by the jury to be of no value when delivered to the carriers, is not 
 within the Act as a "bill," though it might be as a writing. 
 {Stoessigcr v. 8. E. i?//. Co., 23 L. J. Q. B. 293 ; 3 E. & B. 549.) 
 
 (8) Cheques on bankers. 
 
 (4) China. 
 
 (5) Clocks. 
 
 (6) Coins (gold or silver) of any country. 
 
 (7) Deeds. 
 
 (8) Engravings. 
 
 This includes prints and coloured prints. {Boij^ v. Pin];, 8 Car. 
 & P. 361.)
 
 THE CARRIERS ACT. 57 
 
 (9) Foreign coins (gold or silver). ^^lll. 
 
 (10) Furs. 
 
 This does not include hat bodies, made partly of fur and partly 
 of wool. Qlayhew v. Nehon, (3 Car. & P. 58.) 
 
 (11) Glass. 
 
 This includes looking-glasses {Oicen v. Burnett, 3 L. J. Ex. 76 ; 
 2 Car. & M. 357) ; also smelling-bottles and the like. [Bernstein v. 
 Baxendale, 6 C. B. (N. S.) 251 ; 28 L. J. C. P. 265.) 
 
 (12) Gold coin. 
 
 (13) Gold in a manufactured or unmanufactured 
 
 state. 
 
 (14) Gold plate or plated articles. 
 
 (15) Jewellery. 
 See Trinkets. 
 
 (16) Lace. 
 
 But not machine-made lace. (28 & 29 Vict. c. 94.) 
 
 (17) Maps. 
 
 See Wijld V. Pickford, 8 M. & W. 443. 
 
 (18) Money (gold or silver). 
 
 (19) Notes of any bank of the United Kingdom. 
 
 (20) Notes for the payment of money. 
 
 (21) Orders for the payment of money. 
 
 (22) Paintings. 
 
 This includes artist's pencil sketches. {Mytfon v. Midland Ry. 
 Co., 28 L. J. Ex. 385 ; 4 H. & N. 615.) 
 
 The word "paintings" in this Act is used in its ordinary and 
 popular sense to denote works of art. They must be articles of 
 artistic value, as paintings, and not mere designs or patterns.
 
 58 THE LA W OF CARRIERS. 
 
 Chap. VI. (Woodurn-d v. L. &• N, W. By. Co., 47 L. J. Ex. D. 263 ; 3 Ex. D. 
 
 Art. 69. ^ , ... 
 121.) lu that case coloured imitations of rugs and carpets and 
 
 coloured working designs, each, of them valuable and designed by 
 
 skilled persons and hand painted, but having no value as works of 
 
 art, were held not to be " paintings " within the Act. 
 
 (23) Pictures. 
 
 If a package, containing pictures in frames exceeding 10/. in 
 value, is delivered to a carrier to be carried for hire, without any 
 declaration as to the value and nature of the articles, the picture 
 and frame are to be considered as one article ; and the carrier is 
 protected from liability as well in respect of damage done to the 
 frames as in respect of damage done to the picture itself. {Sender- 
 son Y. L. 8f JSr. W. By. Co., L. E. 5 Ex. 90 ; 39 L. J. Ex. 55.) 
 Hawkins, J., in delivering judgment in WoodwcmVs case, supra, said : 
 " That the articles in cj^uestion are of a similar character to those in 
 respect of which the Carriers Act has aiforded 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 ? I answer this c[uestion by adopting the language 
 of Pollock, C. B., in Brunt v. Midland By. Co. (33 L. J. Ex. 187) :— 
 'The line is shifted according to the circumstances. But the 
 question that we have to answer is, not where to draw the line, 
 but whether this is within the line ? I think for all practical and 
 reasonable purposes, wherever the line may be, and leaving the 
 line in a state of doubt (which is a doubt which belongs to every 
 line attempted to be di'awn, either in nature or in the social 
 exigencies of life), that this is without the line.' " 
 
 (24) Plate or plated articles (gold or silver). 
 
 (25) Precious stones. 
 
 (26) Promissory notes. 
 
 (27) Securities for payment of money.
 
 THE CARRIERS ACT. 59 
 
 (28) Silks in a manufactured or immanufactured ^^^f-JJ; 
 
 state, and whether wrought up or not wrought 
 up with other materials. 
 
 This inchides silk hose {Hart v. Barendalc, 20 L. J. Ex. 338 ; 6 
 Ex. 769), elastic silk web {Brunt v. Midland By. Co., 33 L. J. Ex. 
 187; 2 H. & C. 889), a truss of silk {Butt v. G. W. By. Co., 20 
 L. J. C. P. 241 ; 11 C. B. 140), and a silk dress made up for 
 wearing {Flowers v. S. E. By. Co., 16 L. T. N. S. 329) ; also silk 
 watchguards. 
 
 (29) Silver, coin, or plate or plated articles. 
 
 (30) Stamps. 
 
 (31) Stones (precious). 
 
 (32) Timepieces of any description. 
 
 This includes a ship's chronometer. {Le Couteur v. L. 8f S. W. 
 By. Co., L. E. 1 a. B. 54 ; 35 L. J. Q. B. 40.) 
 
 (33) Title deeds. 
 
 (34) Trinkets. 
 
 It was said in Bernstein v. Baxcndak, ante, p. 57, that it is im- 
 possible, with precise accuracy, to define what are "trinkets" 
 within the meaning of the Act. But as the closest approximation 
 to this, it was said that they must be articles of mere ornament, or 
 if ornament and utility be combined, the former must be the pre- 
 dominant quality. And, as instances, it was said bracelets, shirt- 
 pins, rings, brooches, and ornamented shell and tortoise-sheU 
 portmonnaies, however small their intrinsic value, are trinkets. 
 
 (35) Watches. 
 
 (36) Writings. 
 
 See Bills of Exchange, ante, p. 56. 
 
 or any of them contained in any parcel or package 
 which shall have been delivered cither to be carried
 
 60 THE LA W OF CARBIERS. 
 
 ^An 6q' ^^^ ^^^^^ ^^' ^^ accompany the person of any passenger, 
 when the vahie of such article or articles contained in 
 such package shall exceed the sum of 10/., unless at the 
 time of delivering the parcel or package containing 
 them to the carrier its value and nature has been 
 declared, and an increased charge for the carriage, 
 if required, has been paid, or an engagement to pay 
 the same been accepted by the person receiving such 
 parcel or package. (The Carriers Act, 1830 (11 Geo. 4 
 & 1 Will. 4, c. 68), s. 1.) 
 
 As to the words " if required " in tins Ai't., see Art. 73, post, p. 64. 
 
 The Carriers Act was jiassed in consequence of common carriers 
 putting up in their receiving offices notices of terms and conditions 
 of carriage, restrictive of their common law undertaking and lia- 
 bility, — a practice which produced frequent litigation upon the 
 question how far a person delivering goods for carriage became 
 bound by such notices, and what evidence was sufficient to incor- 
 porate them into the contract for carriage. 
 
 The decisions on the constructions of these notices are stated in 
 Addison on Contracts ; Chitty on Contracts, and Browne on 
 Carriers. 
 
 " Several witnesses have complained that the enumeration of 
 goods in the Carriers Act is unsuitable and not based on any 
 recognized principles of traffic, and they suggest that it should be 
 adapted to the present condition of industry and trade. We think 
 there is great force in this suggestion, and are of opinion that the 
 enumeration of articles in the Carriers Act requires revision." 
 (Eeport of Eoj'al Commission on Eailways, 1867.) 
 
 The Carriers Act extends to all the articles enumerated in the 
 j&rst section, even although they do not come within the words of 
 the preamble, as being articles " of great value in small compass." 
 {On-en v. Bunictf, 2 Car. & M. 353.) 
 
 " Value" means intrinsic value at the time the parcel is delivered. 
 {Stoessiger v. S. E. 7?//. Co., ante, p. ^jQ.)
 
 THE CARRIE Its ACT. 61 
 
 The question whetlier an article is of the description mentioned ^^^P-g^^- 
 
 in sect. 1 is a question of fact for a jury. {Brunt v. Midland B>j. ■ 
 
 Co., 33 L. J. Ex. 187.) 
 
 Pictures exceeding the value of 10/. were laid upon one another 
 without any covering or tie in the owner's waggon, which had 
 sides, hut no top ; and the waggon was dehvered to a railway com- 
 pany, and placed by their servants on one of their trucks for car- 
 riage by the railway ; and it was held, that the pictui-es were " con- 
 tained in a parcel or package" within the meaning of sect. 1 of the 
 Carriers Act, so as to give the company the protection of that 
 statute. {Whaite v. Lancashire and YorJishire Ry. Co., L. E. 9 Ex. 
 67 ; 43 L. J. Ex. 47.) 
 
 Bramwell, B., in delivering judgment, said, "I think that this 
 waggon, with what was in it, was a ' parcel or package ' within the 
 meaning of the Carriers Act. The words are, ' articles or property 
 of the descriptions ' specified ' contained in any parcel or package.' 
 Although, commonly speaking, a person would say, 'This is a 
 waggon, not a parcel or package,' yet, looking at the statute, its 
 object and meaning, we are not only justified but compelled to say, 
 that it was a parcel or package within the meaning of the Act. It 
 is remarkable that there is an authority for this ^dew in the words 
 of the plaintiff's manager, who said ' I i)acked these goods.' No 
 one would doubt that this was a correct expression. Then if the 
 goods were packed, this was a package. Moreover, there is this 
 quality of a package about it, that though the waggon was so 
 packed that the defendants could see they were pictures of some 
 sort, yet they could not see what pictures, nor of what nature they 
 were, their exact character being concealed by the mode of packing 
 adopted by the plaintiff." 
 
 Where a packing case contains articles some within the statute 
 and some not, the value of the case and of the articles not within 
 the statute may be recovered, though the statute has not been 
 complied with as regards the articles within the statute. [Trcadwin 
 V. G. E. Ri/. Co., L. E. 3 C. P. 308 ; 37 L. J. C. P. 83.) 
 
 "Willes, J., in delivering judgment, said, " I own that I think, 
 looking to sects. 3, 5, 7 and 9 of the Carriers Act, and construing
 
 62 THE LA W OF CAFilUEES. 
 
 Chap. VI. sect. 1 by the lifflit of these sections, that what the Legislature in- 
 Art, 69. J & ' _ _ o 
 
 tended was the same as what was laid down in IFi/Id v. Picl'ford 
 
 (10 L. J. Ex, 882) ; and that if the principal thing carried was 
 within the statute, then the package also was to he within it." 
 
 The term "loss," in sect. 1, means a loss by the carrier, such as 
 by abstraction by a stranger, or by his own servants not feloniously, 
 or by losing them from vehicles in the course of carriage, or by 
 mislaying them, so as not to know where to find them, and the 
 like ; it includes temporary as well as permanent loss ; so that if a 
 carrier temporarily lose undeclared goods, and on finding them 
 deliver them to the owner within a reasonable time, he will not be 
 liable : if, however, he do not so deliver them, he is liable for this 
 detention. {Ucani v. L. Sf S. W. Ihj. Co., 24 L. J. Ex. 180; 10 
 Ex. 793, as explained by Milieu v. Brasch, 10 Q. B. D. 142, 145, 
 147 ; and see post , Art. 81.) 
 
 A loss by robbery is within the words " loss or injury." {Co- 
 vinton v. Wilkin, Grow. 115 ; De Rothschild v. Royal Hail Sfeaui, 
 Pad-d Co., 7 Ex. 734.) But see Art. 77. 
 
 70. Under the Carriers Act the carrier is entitled 
 to have an express declaration from the owner or his 
 agent, of the contents of a package, at the time of 
 delivery to the carrier, however obvious to conjectm^e 
 the nature of the contents may be. (Bo^^s v. Pmlc, 8 
 Car. & P. 361 ; Owen v. Burnett, 2 Car. & M. 353.) 
 
 In Baxcndale v. IlaH (6 Ex. 769; 21 L. J. Ex. 123), the 
 Court said, " We think that the Act requires the person who sends 
 the goods to take the first step by giving that information to the 
 carrier which he alone can give, and that if the sender does not 
 take that first step, then he cannot maintain this action by the 
 force of the 1st section, which expressly says, that the carrier shall 
 not be Hable unless the declaration is made. Such declaration, when 
 made, will lead to other consequences ; the carrier will know what 
 he is to have more, according to the tariff which he has stuck up in 
 his ofiice ; if that sum is paid and the goods are lost, then of course
 
 THE CARniERS ACT. 63 
 
 lie would be liable; on the other hand, if he refuses to give a Chap yi. 
 
 Art. 70. 
 receipt as provided by the statute, or has omitted to comply with 
 
 any provision of that kind on his part to be performed, he would 
 lose the protection given by the Act ;" and Maule, J., said, " The 
 great object of the declaration is, that greater care may be taken 
 of the goods." 
 
 At common law, there was no duty incumbent on a party send- 
 ing a package to declare the nature and value of the contents. 
 {Walker v. Jackson, 11 L. J. Ex. 346; 10 M. & W. 161.) See 
 ante, Art. 30, p. 26. 
 
 71. The refusal to declare the contents of a pack- 
 age will not justify the carrier in refusing to carry it, 
 but only excuses the loss. [Pinciani v. L. Sf S. W. Ry. 
 Co., 18 C. B. 226 ; Crouch v. L. cj- N. W. Ihj. Co., 23 
 L. J. C. P. 73.) 
 
 The carrier has an insurable interest in the goods, the value of 
 which has not been declared in accordance with the Act. {L. <^ 
 N. W. Rij. Co. V. Glyn, 28 L. J. U. B. 188 ; and ^iost, Art. 114, 
 p. 94.) 
 
 72. The increased rate of charge is to be notified 
 by some notice affixed in legible character in some 
 public and conspicuous part of the office, warehouse, or 
 other receiving-house where such parcels or packages 
 are received by the carrier for the purj^ose of convey- 
 ance, stating the increased rates of charge required to 
 be paid over and above the ordinary rate of carriage 
 as a compensation for the greater risk and care to be 
 taken for the safe conveyance of such valuable arti- 
 cles ; and all persons sending or delivering parcels or 
 packages containing such valuable articles at such 
 office are bound by such notice without further proof
 
 64 THE LAW OF CARRIERS. 
 
 Chap. VI. Qf the same haviii": come to tlieir knowledo^e. (The 
 
 Art 72 cj \ 
 
 — ^ Carriers Act, 1830, s. 2.) 
 
 The notice must be so legible and conspicuous that a person 
 dehvering goods at the office cannot fail to read it without gross 
 neghgence. {Clayton v. Hunt, 3 Camp. 27 ; Batlev v. Ilcanc, 2 
 Camp. 415.) 
 
 73. AYhcre the nature and value of the goods have 
 been declared by the sender, the Act exempts the 
 carrier from his common law responsibility as to such 
 goods, only where ho has notified the increased rate of 
 charge in the manner required by the Act, and de- 
 manded such increased rate of charge ; or where there 
 is a special contract. [BaxcncMc v. Hart, 6 Ex. 
 769; 21 L. J. Ex. 123; Behrens y. G. N. Ry. Co., 31 
 L.J. Ex.299; 7 H. & N. 9o0.) 
 
 In the latter case the plaintiff sent a valuable picture by railway 
 and declared its nature and value at the time of its delivery for 
 carriage, and the company did not demand any increased rate to 
 which they were entitled under sect. 2 of the Carriers Act, and 
 only the ordinary charge was paid, the carrier was held not pro- 
 tected by the statute for an injury to the picture during the 
 Joiu-ney. 
 
 In delivering judgment in Bel/rens' case, Bramwell, B., said: 
 " It has been said that there ought to have been a notice affixed at 
 the place where the parcel was received. If we look to the 1st 
 section of the Act, we find that parcels may be received by any 
 carrier, or by their book-keeper, coachman or other servant. So 
 that it is c[uite clear that section contemplated the sending parcels 
 not alone to an office, but their being given to some servants of the 
 company who were engaged in the business of carrying. When 
 we look at the 1st section, we at once find that the language of the 
 2nd section, as to the sticking up the notice, is not apphcable to
 
 THE CARBIERS ACT. 65 
 
 the 1st section. I think that is an answer to the argument tliat Chap. VI. 
 the statute intended there should he a notice affixed at the place • 
 where the things were actually delivered, because it would be 
 impossible that could be done, having regard to the alterations 
 which modern modes of transit have introduced into the trade of 
 carriers, seeing now that carts go round from the different railway 
 companies to collect parcels in a' way that did not exist at the time 
 of the passing of this statute. It may be that this matter with 
 regard to the notice is a casus omissus. Had the trade been 
 earned on then as it is now, the statute would perhaps have said 
 that the notice should be affixed on any cart that went round to 
 collect parcels in this way. Such a thing might be a matter of 
 policy, but the raihvay companies are much better judges of their 
 own business than we are .... It might be desirable, however, 
 either that a notice should be put upon the cart, or that those going 
 about with the cart should be directed to refuse to take parcels 
 when the value is declared .... but this is really a matter that 
 has reference more to the mode in which railway companies carry 
 on their trade than to any question of what is the law upon the 
 subject." 
 
 74. If the carrier refuse, on demand, to give a 
 receipt for the goods and extra charge, this will 
 dej^rive him of the protection of tlie Act, and he 
 is liable to refund the extra charge. (The Carriers 
 Act, 1830, s. 3.) 
 
 75. A delivery of a parcel at any ''office, warehouse 
 or receiving house," used or appointed for the re- 
 ceiving of parcels, is sufficient to render the carrier 
 liable for its loss or injury, if the nature and value 
 are declared. (The Carriers Act, 1830, s. 5.) 
 
 An inn, at which a coach regularly stops for the purpose of taking 
 up parcels, is a receiving house within the Act. {Syms v. Chaplin^ 
 
 M. F
 
 66 THE LAW OF CARRIERS. 
 
 Chap. VI. 5 A. & E. 634 ; Stephens v. L. 8^ 8. IF. Ri/. Co., 18 Q. B. D. 121 ; 
 ^'^" ^^' 56 L. J. Q. B. 161 ; Bun-ell v. North, 2 Car. & Kir. 680 ; Boys v. 
 Fink, 8 Car. & P. 361.) 
 
 It is a good delivery within tlie Act to a servant of the carrier on 
 the road. {Baxendale v. Edrt, 21 L. J. Exch. 123.) 
 
 It is also a good delivery to the carrier if it is made to his book- 
 keeper, coachman or other servant ; sect. 1. 
 
 It has been held that the contract entered into by the booking- 
 oflBce keeper, who takes in parcels to be forwarded by carriers, is 
 only to deliver safely to the carrier, not to the consignee. {Gilbart 
 V. Dale, 5 A. & E. 543 ; Midland Ry. Co. v. Bromley, 17 C. B. 
 378.) 
 
 76. Nothing in the Carriers Act is to extend, annul, 
 or affect any special contract for the conveyance of 
 goods and merchandize. (.The Carriers Act, 1830, 
 s. 6.) 
 
 The fact of goods being received by a common 
 carrier under a special contract does not deprive liim 
 of the protection of tlie Act, unless the terms of the 
 contract are inconsistent with the exemption thereby 
 conferred. {Baxendale v. G. E. Rij. (7(9., L. R. 4 Q. B. 
 244 ; 39 L. J. Q. B. 137.) 
 
 In that case Kelly, C. B., said, " It is clear that sect. 6 applies 
 only to contracts the provisions of which are inconsistent with the 
 exemption claimed by the carrier under sect. 1. Any contract 
 which would render the carriers liable for the loss of goods beyond 
 the value of 10/., whether they shall have had notice of the value 
 or not, is a special contract which is not to be affected at all, but 
 shall have full force and effect, notwithstanding the exemption 
 conferred upon them as common carriers by the 1st section." 
 
 77. The Carriers Act does not protect the carrier 
 from any loss arising from the felonious act of any
 
 THE CARRIERS ACT. 67 
 
 servant in liis employ. (The Carriers Act, 1830, ^^^^7^' 
 s. 8.) '" ' 
 
 Every person actually engaged in the performance of the contract 
 of carriage and dehvery is a servant of the carrier within the 
 meaning of this section. 
 
 Where a carrier enters into a sub-contract with other parties 
 with respect to the carriage of goods which he has undertaken to 
 carry, the servants employed by the latter are " servants in the 
 employ" of the earner within the meaning of the Act. [Machu v. 
 L. 8f S. W. R>/. Co., 2 Ex. 415 ; Doolan v. Midkuid Ry. Co., 2 
 App. Cas. 792, 810 ; Stephens v. L. ^ S. W. Ey. Co., 18 Q. B. D. 
 121 ; 56 L. J. Q. B. 161.) 
 
 A mere suspicion that the loss arose from felony by the carrier's 
 servant is not sufficient: it must be proved. [RimmellY. G. W. Ri/. 
 Co., 27 L. J. C. P. 201.) 
 
 The plaintiff must establish a prima fade case that the loss has 
 arisen from such felonious acts, and it is not sufficient to show that 
 it is more probable that the loss has arisen from such felonious 
 acts than by the act of some person not in the employment of the 
 carrier. {M'Qucen v. G. W. Ry. Co., L. R. 10 Q. B. 569; 44 
 L. J. Q. B. 130.) 
 
 It is not necessary to show a loss by the felony of any particular 
 servant of the carrier {Vaughton v. L. ^' N. W. Ry. Co., L. R. 9 
 Ex. 93 ; 43 L. J. Ex. 75), or a loss by felony thi-ough the negli- 
 gence of the carrier. (Per Jervis, C. J., and Willes, J., see 18 
 C. B. 575 ; Metcalfe v. London, Brighton 8^ S. C. Ry. Co., 4 C. B. 
 N. S. 307.) 
 
 In Kirkstall Brewery Co. v. Furness Ry. Co. (L. R. 9 Q. B. 468 ; 
 43 L. J". Q,. B. 142) information given by the defendants' station- 
 master to a police constable that one of defendants' servants was 
 suspected of having stolen the missing parcel, was held to have 
 been rightly admitted in evidence to show a felony by the defen- 
 dants' servants. 
 
 In Way v. Great Eastern Ry. Co. (1 U. B. D. 692 ; 45 L. J. 
 
 f2
 
 68 THE LAW OF CARRIERS. 
 
 Chap. VI. Q. B. D. 174), certain pictures, above the value of 10/., were de- 
 Art. 77. . 
 livered to the defendants to be carried, and were by them placed 
 
 in a van in their yard preparatory to their transmission. A man, 
 by representing himself to be one C. (who was a driver in the 
 employ of M., the defendants' sub-contractor), obtained from 
 the defendants' delivery clerk, a pass and other documents, which 
 enabled him to take the van from the yard, and so to steal the 
 pictures. An action having been brought for their value, the 
 material issue was whether they were lost through the felonious act 
 of the defendants' servants. A case embodying the above facts, 
 with power to the Court to draw all necessary inferences, having 
 been stated, it was held that the defendants were not estopped from 
 denying that the thief was their servant, and that the Court would 
 not infer that he was. 
 
 If the loss or injury be occasioned by the personal neglect or 
 misconduct of the coachman, guard, book-keeper or other servant 
 of the carrier in a case in which the carrier himself is not re- 
 sponsible, such coachman, &c. may be sued by the owner of the 
 goods for the consequent damage. (Story on Bailm. 510.) 
 
 78. If goods within the Act be sent to a carrier 
 for conveyance without a declaration of the nature 
 and value of such goods, and without paying, or 
 engaging to pay, an increased charge, the carrier is 
 not liable for their loss, though it happen by the gross 
 negligence of himself or his servants. [Ilinton v. Dchhin, 
 2 Q. B. 646.) 
 
 In that case, Lord Denman said, " The question for our decision 
 is, whether, since the passing of the Act, a carrier is liable for the 
 loss of goods, therein specified, by reason of gross negligence. . . . 
 In deciding upon this statute, we must, of course, be regulated by 
 its language ; and the state of the law at the time of its passing is 
 material only so far as it enables us to discover the mischief for 
 
 which it was intended to apply a remedy By the first 
 
 section, the exemption of the carrier from liability is absolute and
 
 THE CARRIERS ACT. . 69 
 
 complete, unless the preliminary thereby made indispensable is ^^^J' ^* 
 
 complied with by the owner of the goods By section 4, 
 
 it is provided that no public notice or declaration shall exempt any 
 carrier from his liability at common law for the loss of or injury 
 to any articles other than those in the first section enumerated, but 
 that, as to such other articles, his liability, as at common law, shall 
 remain notwithstanding such notice. From which exception, as to 
 the liability of the carrier in respect of goods not enumerated, it 
 seems impliedly to follow, that as to those which arc, protection is 
 afforded to him in the manner above set forth." 
 
 79. Though the carrier is not liable for loss of 
 or injury to the goods even in cases of gross negli- 
 gence if the nature and value lias not been declared, 
 yet if such negligence amounts to a wilful misfeasance, 
 or wrongful act {Ilinton v. DehUn, 2 Q. B. 646), in- 
 consistent with his character of carrier, and with his 
 contract to convey, such as not carrying or forwarding 
 them {Garnett v. Willan, 5 B. & A. 61; IIcudi v. L. 
 Sf S. W. Rij. Co., 24 L. J. Ex. 180, per Parke, B.), 
 or forwarding them otherwise than agreed upon [Sleat 
 V. Fagg, 5 B. & A. 342), or if he deviates from the 
 usual route {Davis v. Garrett, 6 Bing. 716), or if he 
 send them beyond the place of their destination 
 (Bodenham v. Bennett, 4 Price, 41 ; Bllis v. Turner, 
 8 T. R. 531), he is liable. {Ilearn v. L. c^ S. W. Rg. 
 Co., supra.) 
 
 80. A carrier is not deprived of the protection 
 afforded by the Carriers Act, 1830, by the fact that 
 the loss or injury to the goods happens after they 
 have been negligently taken by him beyond their
 
 70 THE LAW OF CARRIERS. 
 
 Chap. VI. point of destination. {Morritt v. N. E. By. Co.^ 1 Q. 
 -^^^^ B. D. 302 ; 45 L. J. Q. B. D. 289.) 
 
 In tliat case the plaintiff, a passenger by the defendants' radway, 
 took with him, along with other luggage, two pictures which were 
 duly labelled to D, The value of the pictures, which exceeded 
 10/., was not declared, nor was any increased rate of charge paid. 
 The pictures were accidentally carried beyond D. and considerably 
 damaged, and it was held that the defendants w^ere not liable, on 
 the ground that they were protected by the provisions of the 
 Carriers Act. 
 
 Lord Justice Mellish, in delivering judgment in the Court of 
 Appeal, said : " The simple question is, whether goods, which are 
 within the section, up to the point of destination, are within the 
 section if they are unintentionally carried on and damaged beyond 
 that point. I am of opinion that they are. If it were not so, a 
 man might fill his portmanteau with bank notes, and not declare 
 them, nor pay any higher rate, and then if the portmanteau were 
 carried on by mistake and lost, and lost beyond the destination, 
 the whole protection of the statute would be withdrawn. This 
 would be unreasonable. It seems to me that if one of the most 
 ordinary causes of loss and injury, namely, mistake in not taking 
 the goods out at their destination, were excluded from the operation 
 of the Act, its protection would be of very little value to the car- 
 riers. It is not necessary to decide what would be the liability of 
 the company if after they discovered the mistake they neglected 
 to take proper care of the pictures, as there is no evidence in this 
 case of whether the damage was done before or after the mistake 
 was discovered." 
 
 81. A carrier is protected by the provisions of the 
 Carriers Act, s. 1, not only from liability for the loss, 
 whether temporary or permanent, of midcclared goods, 
 but also from liability for the consequences resulting 
 from such a loss, and consequently is not liable in
 
 THE CARRIERS ACT. 71 
 
 damages for the detention of undeclared goods, where ^^^^^ g^- 
 such detention is tlie result of a loss in respect of which 
 he is protected by the Carriers Act. {Millen v. Brmch^ 
 10 Q. B. D. (C. A.) 142 ; 52 L. J. Q. B. D. (App.) 127.) 
 
 In that case the plaintiff delivered to the defendants, earners for 
 hire from London to Eome, a trunk to be sent from London to 
 Liverpool, and thence by ship to Italy. The trunk contained 
 wearing apparel, consisting- of silk dresses and other articles within 
 the Carriers Act, exceeding 10/., hut no declaration of their value 
 was made. Owing to the negligence of the defendants, the trunk 
 was sent to the Victoria Docks, in London, and thence shipped to 
 New York. It was eventually recovered, and after considerable 
 delay deUvered to the plaintiff in Eome. Some of the contents 
 were injured owing to the Custom House officer in New York 
 unpacking and negligently repacking the trunk. The plaintiff 
 having claimed for the loss of the trunk and injury to its contents, 
 and also for the repurchase of other articles in Eome at enhanced 
 prices, it was held — first, that the trunk was lost within the mean- 
 ing of the Carriers Act, and that the defendants were protected by 
 the provisions of that Act for the loss and injury to its contents, 
 notwithstanding that the loss was temporary ; secondly, that the 
 plaintiff was not entitled to recover, as consequential damages for 
 nondelivery of the undeclared articles within due time, the cost of 
 the repurchase of other articles at Eome at enhanced prices, inas- 
 much as such nondelivery was the result of a loss in respect of 
 which the defendants were protected by the Carriers Act. 
 
 82. A person bringing an action for the loss or 
 injury to articles specified under the Act, is entitled 
 to recover back such increased charges as are payable 
 under sect. 2, in addition to the value of the parcel or 
 package. (The Carriers Act, 1830, s. 7.) 
 
 The carrier is not concluded as to the value of a
 
 72 THE LAW OF CARRIERS. 
 
 Chap. VI. parcel by the declared value, but may require from 
 '■ the party suing proof of the actual value for which he 
 
 is liable, so that it do not exceed that declared. (The 
 
 Carriers Act, 1830, s. 9.) 
 
 If the consignor declares the value of the goods, he is bound by 
 his declaration, and cannot afterwards show that the value of the 
 goods exceeded that declared. {M'Cance v. L. Sf N. W. E>j. Co., 
 34 L. J. Ex. 39.) 
 
 83. Where there is one entire contract to carry 
 partly by land and partly by sea, the carrier is entitled 
 to the benefit of the Carriers Act in respect of so much 
 of the journey as is performed by land [Le Couteur v. 
 L. ^' S. W. Bij. Co., L. R. 1 Q. B. 54 ; 35 L. J. Q. B. 
 40), and to the protection of the Merchant Shipping 
 Acts, as to so much of the journey as is performed by 
 sea. {London c^^ >S'. TF. %. Co. v. James, L. R. 8 Ch. 
 241 ; 42 L. J. Ch. 337.) 
 
 2. By Special Contract or Notice. 
 
 84. A common carrier cannot by imllic notice or 
 declaration limit or otherwise affect his liability at 
 common law for any articles or goods carried by him 
 other than articles or goods mentioned in the Carriers 
 Act, 1830 (11 Geo. 4 & 1 Will. 4, c. 68, s. 4). 
 
 This section (4) only applies to public notices such as were very 
 common before the Carriers Act— notices addressed to the public 
 at large, raising a question in every case whether the notice was
 
 SPECIAL CONTRACT LIMITING LIABILITY. 75 
 
 brouglit home to tlie particular person. It is not applicable to a Chap. VL 
 
 notice specifically delivered to form the basis of a special contract. 
 
 {Walker v. York and N. Mid. Ry. Co., 23 L. J. Q. B. 75 ; 2 Ell. & 
 B. 761 ; Van Toll v. S. E. i?y. Co., 31 L. J. C. P. 241.) The 
 history of the public notices issued by carriers is to be found in 
 Addison on Contracts (8th ed.), pp. 535, 537. " The contradictory 
 decisions upon the proof and effect of these notices, and the con- 
 fused state of the law respecting them, at last rendered the inter- 
 ference of the legislature necessary in order to protect the common 
 carrier on the one hand from fraud and concealment on the part of 
 the consignor of parcels and packages, and to protect the consignor, 
 on the other, from fraud, negligence, and misconduct on the part of 
 the common carrier." 
 
 In America the weight of authority is against the validity of 
 public notices seeking to restrict the carrier's liability, although the 
 existence of sach notice be brought home to the owner of the goods. 
 (See cases cited in Story on Bailm., 7th ed. p. 506.) 
 
 Where, before the Carriers Act, a carrier had published two 
 different notices, each of which was before the public at the time 
 of the carriage, that one was held to bind him which was least 
 beneficial to himself ; and where at the time of the carriage he 
 delivered a written notice without any limitation of responsibility, 
 that was held to nullify his prior notice containing a limitation. 
 {Munn V. Baker, 2 Stark. 255; Cohclen v. Bolton, 2 Camp. 108; 
 Phillips V. Edwards, 3 H. & N. 813, 820.) This decision is founded 
 on the legal maxim, verba chartarum fortius accipiuntur contra pro- 
 ferentem. (Co. Lit. 36 a.) 
 
 A ticket or paper with printed conditions upon it of which the 
 consignor has notice, whether signed by him or not, was held to 
 be a special contract within sect. 6 of the Carriers Act, and not a 
 public notice under sect. 4. {G. JSf. By. Co. v. Morville, 21 L. J. Q. B. 
 319 ; Walker v. York and N. Mid. By. Co., 2 E. & B. 750 ; York, 
 Newcastle and Berwick By. Co. v. Crisp, 23 L. J. C. P. 125.) This 
 would, of course, not be so now in the case of railway and canal 
 companies. {See post, Chap. XI., Art. 168.)
 
 74 THE LAW OF CARRIERS. 
 
 Chap. VI. 35 A common carrier may limit his common law 
 
 Art. 85. -^ 
 
 ^ • resi^onsibility by receiving the goods subject to certain 
 
 conditions, or in any other manner making a special 
 contract with his customer (subject; in the case of 
 railway and canal companies, to the provisions of the 
 Eailway and Canal Traffic Act, 1854, stated ;;os2f, 
 Chap. XI., Art. 168). (The Carriers Act, 1880 (11 
 Geo. 4 & 1 AVill. 4, c. 68), s. 6.) 
 
 This section expressly enacts tliat nothing contained in the 
 Carriers Act is to annul or in anywise affect any special contract 
 hetween common carriers and any other parties, for the conveyance 
 of goods and merchandize, thus recognizing the right of a carrier 
 which existed at common law to protect himself by special agree- 
 ment or special acceptance. Upon the question whether a notice 
 or condition has been so brought to the knowledge of the con- 
 tracting party, as to render it part of the contract. {Henderson v. 
 Stevenson, L. E. 2 H. L. Sc. App. 470; Harris v. G. W. JRi/. Co., 
 1 Q. B. D. 515 ; 45 L. J. Q. B. 729.) 
 
 It would seem that even if a knon-Iedge of a public notice (/. e. a 
 general notice affixed in the offices of carriers, or advertised in 
 newspapers attempting to limit the carriers' common law liability) 
 could be brought home to the customer, it would not now protect 
 the carrier. (See Art. 84.) There ought to be proof of a specific 
 agreement between the carrier, or his agent, and the indiyidual 
 tendering the goods. 
 
 It has never been questioned since the case of Sout/icofe (4 Co. 
 83), that any bailee might stipidate for an increased or a dimi- 
 nished degree of responsibility from that which the law imposed 
 upon his general undertaking. Upon principle, it is difficult to 
 distinguish between an express contract, exonerating the carrier 
 from his ordinary responsibility, and a notice from the earner, that 
 he would not assume such responsibility, brought home and as- 
 sented to by the owner of goods delivered to be carried.
 
 SPECIAL CONTRACT LIMITING LIABILITY. 75 
 
 Carriers may generally limit or modify tlieir common law Chap. vi. 
 
 liability by contract where persons are willing to enter into 
 
 sucli stipulations with. them. (See Scaife v. Farrant, 44 L. J. 
 Ex. 234.) 
 
 86. Where a notice by the carrier limiting his 
 liability is personally served on a person, who after- 
 wards sends goods to a carrier to be carried, it is a 
 question for the jury whether they were not sent 
 subject to the terms of such notice, and whether such 
 notice did not form the basis of a special agreement 
 between the parties, the Carriers Act merely appljdng 
 to ^^'e^^/Zc notices, such as those usually stuck up in 
 offices, or published in newspapers. ( Walker v. Y. Sf N. 
 Midland 11//. Co., 2 E. & B. 750; Palmer v. Grand 
 Junction Ry. Co., 4 M. & W. 749 ; Crouch v. L. c^ N. W. 
 Ry. Co., 14 C. B. 255 ; Crouch v. Great Northern Ry. 
 Co., 9 Ex. ^6Q.) 
 
 In the cases above cited as authorities for the proposition in 
 the text the defendants were railway companies. These cases 
 were, of course, decided before the Railway and Canal Traffic 
 Act, 1854, which requires a signed special contract. {Fast, Chap. 
 XL, Art. 166.) 
 
 Where the notice cannot be brought home to the person inte- 
 rested in the goods, directly or constructively, it is a mere nullity ; 
 and the burden of proof is on the carrier to show that the person 
 with whom he deals is fully informed of the terms and effect of 
 the notice. (See Angell on Carriers, p. 239.) 
 
 In Crouch v. L. ^ iV. TF. Ry. Co. (23 L. J. C. P. at p. 82), 
 Maule, J., said, " A common carrier who makes no stipulation, and 
 gives no notice with respect to the insurance of goods, is, no doubt, 
 liable as an insm-er of the goods, but a common carrier who by notice
 
 76 THE LA W OF CARRIERS. 
 
 Chap.vi. limits his liability and says, ' I will not contract as an insurer,' or 
 
 '■ — ^ ' I will only contract to sucli and such an extent, or to the extent 
 
 of such a value,' still remains in all other respects a common 
 carrier, because although the incident of being an insurer does not 
 apply to him, that is simply because it is specifically provided 
 for." 
 
 87. Wliere the common carrier is not a common 
 carrier of the particular description of goods tendered 
 him for conveyance, and has the option of refusing 
 and rejecting them at his own good will and pleasure, 
 he may prescribe his own terms of conveyance ; and 
 if the party delivering goods to be carried has been 
 personally served with a notice of the terms on which 
 the common carrier carries goods, and, after seeing 
 the notice, sends the goods, he must be taken to agree 
 that they shall be carried on those terms: and there is 
 then a special contract between him and the common 
 carrier for their conveyance (per Wightman, J., in 
 Walker v. York Sf N. 3Iid. By. Co., 2 E. & B. 760), 
 unless the carriage is by railway or canal, so as to 
 necessitate a signed special contract under the Eailway 
 and Canal Traffic Act, 1854. 
 
 But this is not the case with regard to such articles as the 
 common carrier is bound by his public profession and employment 
 to carry. With regard to them the owner has a right to insist 
 that the common carrier shall receive the goods subject to all the 
 responsibilities incident to his employment. {Kirkman v. S/iau-crosSf 
 6 T. R. 17 ; Garton v. Bristol and Exeter By. Co., 30 L. J. Q. B. 
 276; 1 B. & S. 162.) "If the delivery of goods under such 
 circumstances authorises an implication of any kind, the presump- 
 tion is as strong, to say the least, that the owner intended to insist
 
 SPECIAL CONTRACT LIMITING LIABILITY. 77 
 
 on his legal riglits, as it is that he was willing to yield to the Chap. vi. 
 
 wishes of the carrier." {RoUisfcr v. Noidcn, 19 Wend. 247 ; New 
 
 Jersey St. Nav. Co. v. MercJianh Bank, 6 How. 341 ; Crouch v. L. c^- 
 JV. W. Rij. Co., 23 L. J. C. P. 73 ; and see Addison on Contracts 
 (8th ed.), 540 ; Art. 24, ante, p. 22.) 
 
 88. A common carrier may refuse to receive and 
 carry articles of a perishable nature, or of a very 
 delicate and fragile nature wliicli he does not 
 commonly profess to carry, and which may be readily 
 injured, except under a special contract exonerating' 
 him from all responsibility for damage done to them 
 in transitu, not occasioned by the gross negligence 
 or default of himself or his servants. {Beat v. South 
 Devon Rfj. Co., 29 L. J. Ex. 441 ; 5 H. & N. 875 ; 
 PeeJc V. iV. Staffordshire R>j. Co., 32 L. J. Q. B. 241 ; 
 Leeson v. Holt, 1 Stark. 186.) 
 
 89. Though there be a special acceptance by the 
 carrier, and he seeks to exempt himself from liability 
 mider certain specified stipulations, he does not 
 thereby altogether discharge himself from his cha- 
 racter or responsibilities of a common carrier, or pro- 
 tect himself where there has been negligence or mis- 
 feasance on his part. ( Wijld v. Fickj'ord, 8 M. & AV. 
 443.) 
 
 See ante. Art. 61. 
 
 As to a special contract lessening general responsihility not 
 excusing negligence, see Goldnoj v. Penn. llij., 30 Pa. St. 242. 
 
 90. A special contract will not exclude the carrier 
 from the benefit of sect. 1 of the Carriers Act, unless
 
 78 THE LA W OF CA RBIERS. 
 
 Chap. VI. there is something in the terms of the contract incon- 
 
 Art. 90. ^ , 
 
 ' sistent with the goods having been received by him in 
 
 his capacity of a common carrier. [Baxendale v. G. E, 
 Ry. Co., L. R. 4 Q. B. 244 ; 38 L. J. Q. B. 137.) 
 
 See antcy hxi. 76.
 
 ( 79 ) 
 
 CHAPTER VII. 
 
 THE OBLIGATIONS OF A COMMON CARRIER WITH REFERENCE TO 
 THE DELIVERY OF THE GOODS TO THE CONSIGNEE, AND 
 THE TERMINATION OF THE CARRIER'S LIABILITY. 
 
 Articles. 
 
 1. The place tvhcre the Goods are to he delivered . . 91 — 96. 
 
 2. Delay in delivery 97. 
 
 3. The Carrier s duty on the arrival of the Goods. . 98 — 106. 
 
 4. Refusal of the Consignee to accept 107 — 109. 
 
 5. The Carrier's liability as a Warehouseman 96, 105, 110, 111. 
 
 91. Every person who undertakes to carry as a chap.vii. 
 
 common carrier impliedly engages to proceed without 
 
 deviation from the usual and ordinary course, to the 
 
 place of delivery (Davis v. Garrett, 6 Bing. 716), and 
 there deliver the goods according to the usage of trade, 
 the ordinary course of business, or the terms of his 
 contract. 
 
 92. A common carrier is bound to carry by the 
 route which he professes to be his route, and must 
 use reasonable diligence in delivering the goods, having 
 reference to the means at his disposal for forwarding 
 them. (Hales v. L. ^- iV. W. Ry. Co., 32 L. J. Q. B. 
 292; 4B. & S. 66.) 
 
 A common carrier, in the absence of an express con- 
 tract, is not bound to carry goods by the shortest route, 
 but only by the route by which he usually carries them,
 
 80 THE LAW OF CARRIERB. 
 
 ^An'g"' ^^^^ wliicli he professes to go. (Per Willes, J., in 
 — Myers v. L. ^' S. W. By. Co., L. R. 5 C. P. 3 ; 39 L. J. 
 
 C. P. 57. Sec tlie facts of tins case iwd, Cliaj). XTI. 
 
 Art. 194.) 
 
 If a carrier deviate from the usual route, aud the goods be 
 lost, even by inevitable accident, he is liable ; for, under such 
 circumstances, the loss is traced back through all the intermediate 
 causes to the first departure from duty. {Davis v. Garrett, supra.) 
 In that case Tindal, C. J., uses the words "without iinnecessanj 
 deviation," which imply that deviation is sometimes justifiable. 
 {^eepost, Chap. XII. Art. 194.) 
 
 93. Where goods are delivered to a carrier, to be 
 delivered at a particular place, the owner of the goods 
 may comitermand the direction at any moment of their 
 transit, and require the carrier to deliver at a different 
 destination to that originally named, or may demand 
 back his goods on payment of the carriage to their 
 original destination, unless the unpacking and re-de- 
 livering would be productive of great inconvenience. 
 [Bcottliorn V. S. Staf. Ry. Co., 22 L. J. Ex. 121 ; 8 Ex. 
 34. See^;o5f, Chap. XII. Art. 202.) 
 
 94. A common carrier may deliA^er the goods 
 wherever he and the consignee agree, if there has 
 been no special contract between the consignor and 
 the carrier as to the j^lace of delivery. (^CorJc Dis- 
 tilleries Co. V. Gt. South. ^ West. Ry. Co. [Ireland), 
 L. R. 7 H. L. 269 ; 8 Ir. R. C. L. 334. See 2^ost, 
 Chap. XII. Art. 202.) 
 
 A special contract entered into by the carrier or his servant to 
 deliver in any particular time or place, even beyond the terminus 
 of his particular route, is binding.
 
 THE DELIVERY OF TEE GOODS TO THE CONSIGNEE. 81 
 
 95. If the goods a carrier receives for conveyance ^^^^P;^"- 
 are directed to a place beyond the place to which he - 
 ordinarily professes to carry, it is his duty, in the 
 absence of any special contract, to see that they are 
 delivered at the place to which they are directed. 
 
 Ante, Art. 39, p. 35. As to the through traffic of railway com- 
 panies, see post, Chap. XI. Art. 192. 
 
 96. The responsibility of a common carrier in that 
 character continues until the carrier has discharged 
 his duty as such with respect to the goods. 
 
 When a person has received goods in the capacity 
 of a common carrier, he is not discharged from 
 liability in that capacity until he has either delivered 
 the goods to the consignee or his assignees, or until a 
 reasonable time has elapsed after the consignee has 
 notice of the arrival of the goods, for him to come and 
 receive them. [Bourne v. Gatliffe., 11 C. & F. 45; 8 
 Scott, N. R. G04; 3 M. & G. 643.) 
 
 So long as a carrier retains the possession of, or the 
 control over, the goods, or is to perform any further 
 duty, either by custom or contract as a carrier, he is 
 responsible for their safety. ( Cairns v. Rohins, 8 M, & 
 W. 258.) 
 
 It is for a jury (where there is no written contract) 
 to determine the extent of the agreed transit. 
 
 It is the duty of a carrier to keep goods which are 
 to be fetched away a reasonable time for the consignee 
 to come and fetch them. {Bourne v. Gatlife, supra; 
 Patscheider v. G. W. Rij. Co., 3 Ex. D. 153.) But if 
 the consignee is in mora by delaying to take the goods 
 
 M. G
 
 82 THE LAW OF CARRIERS. 
 
 ^^*P- Y"- away within a reasonable time, the obligation of the 
 
 Art. 96. -^ 5 t) 
 
 carrier becomes that of an ordinary bailee, and is con- 
 fined to taking proper care of the goods as a ware- 
 houseman [Chajwian v. G. W. Rij. Co., 5 Q. B. D. 278; 
 49 L. J. Q. B. 420) ; and this is so even if the goods 
 are consigned 'Ho be left till called for." 
 
 In the case of goods carried across a ferry, it is for the jury to 
 determine from evidence of practice at the ferry whether the 
 owners of the ferry have undertaken to carry goods up a slip, or 
 only to land them on the shore. {Walker v. Jackson, 10 M. & W. 
 IGl.) 
 
 97. A common carrier of goods is not, in the ab- 
 sence of a special contract to deliver at a particular 
 time, bound to deliver within any given time, but 
 only within a time Avhicli is reasonable, looking at all 
 the circumstances of the case ; and he is not responsible 
 for the consequences of delay arising from causes 
 beyond his control ; and since his first duty is to 
 carry safely, he is justified in incurring delay, if delay 
 is necessary to secure the safe carriage. {Tcujlor v. 
 G, JSf. Ri/. Co., L. R. 1 C. P. 385; 35 L. J. C. P. 
 210.) 
 
 In that case the defendants, a railway company, were prevented, 
 by an unavoidable obstruction on their lino, from carrying the 
 plaintiif's goods within the usual (a reasonable) time. The ob- 
 struction was caused by an accident resulting solely from the 
 neghgence of another company who had statutory running powers 
 over their line, and it was held that the defendants were not liable 
 to the plaintiff for damage to his goods caused by the delay. 
 
 Erie, C. J., in delivering judgment, said, " I think that the duty 
 which the law imposes upon a common carrier to deliver the goods
 
 THE DELIVERY OF THE GOODS TO THE CONSIGNEE. 83 
 
 safely has nothing to do with the time for delivery ; the time at Chap. vil. 
 
 which he is .to deliver is part of the contract. I think that a 
 
 carrier using all reasonable diligence to get goods to their destina- 
 tion would fulfil his duty to deliver them within a reasonable 
 time." And Montague Smith, J., said, " No doubt a common 
 carrier is an insurer to the extent that the goods shall be delivered 
 safely and securely, but there is no authority for holding that he 
 insures their arrival at any particular time, or according to any 
 usual course of delivery. He is bound to deliver them within a 
 reasonable time, and the usual course of delivery would in most 
 cases be prima facie evidence of what is a reasonable time ; but it 
 must depend on all the circumstances of the particular transaction 
 as to what is a reasonable time. His duty is to convey the goods 
 in a reasonable time without unnecessary delay ; but it may be 
 necessary in order safely to deliver, to make a delay or even to 
 deviate, and if the delay or the deviation are necessary for that 
 purpose, then delay or deviation may be incurred, and the delivery 
 of the goods may be retarded without any responsibility being cast 
 on the carrier to make good the loss occasioned by the delay," 
 
 A common carrier, if the road is obstructed by snow, is not 
 bound to use extraordinary means, involving additional expense, 
 for accelerating the conveyance of cattle or goods, though the 
 delay may be prejudicial to the goods or their owner, and though 
 by extra exertions they might have been forwarded. [Briddon v. 
 G. N. By. Co., 28 L. J. Ex. 51.) This decision would, of 
 course, apply to other obstructions caused by the act of God. 
 (See ante, p. 44.) " The duty to deliver within a reasonable time 
 being merely a term ingrafted by legal application upon a promise 
 or duty to deliver generally." (Tindal, 0. J., in Baphael v. Pick- 
 ford, 5 M. & a. 558.) 
 
 As to what damages a carrier is liable for in consequence of a 
 late delivery of the goods, see post, Chap. XII. Art, 199. 
 
 98. A carrier is bound to give notice to the con- 
 signee of tlic arrival of the goods, wliere it is not, 
 
 (I 2
 
 84 THE LAW OF CARRIERS. 
 
 ^ Art 98^ nuder the circumstances, part of liis duty to deliver 
 
 '" them. {Bourne v. GatUffe, 7 M. & G. 850, 865 ; 8 
 
 Sco. N. R. 604; Golden v. Manning, 2 W. Bl. 916; 
 
 Dufy. Budd, 3 B. & B. 177; Garnett v. WlUan, 5 B. 
 
 & A. 58.) 
 
 As to the duty of a railway company, see j^ost, Chap. XII. 
 Art. 203. 
 
 99. A common carrier by land is bound, in the 
 absence of any established usage, or any special con- 
 tract to the contrary, to deliver the goods at the house 
 of the consignee if his residence be known. {Ilyde v. 
 Trent and 3Ierse?j Navigation Co., 5 T. R. 389 ; Storr v. 
 Crowlc/j, 1 M'Cl. & Y. 129; DuffY. Budd, 3 B. & B. 
 182.) 
 
 If a common carrier conveys goods sj)ecially ad- 
 dressed, and tenders them for delivery at a reasonable 
 hour at the address given, his liability as a common 
 carrier will cease. 
 
 Whether the carrier is bound to deUver at the residence of the 
 consignee seems to depend on the circumstances of each particular 
 case. If it be the carrier's course of trade to deliver goods at the 
 consignee's residence, he is clearly bound to do so. {Golden v. 
 Manning, 2 W. Bl. 91G.) 
 
 In the case of railway companies acting as carriers, see jjost, 
 Chap. XII. Art. 204. 
 
 In Hyde v. Trent and Mersey Nav. Co., supra, the subject was 
 considerably discussed, whether the carrier was bound to deliver 
 to the individual at his house, or whether he discharged him- 
 self from liability by delivery to a porter, at the inn in the 
 place of destination. The opinion of Lord Kenyon was, that the
 
 THE DELIVERY OF THE GOODS TO THE CONSIGNEE. 85 
 
 carrier was thus discharged, hut the three other judges, Buller, Chap. vii. 
 
 Ashurst, and Grose, were of opinion, that the risk of the carrier 
 
 continued until a personal delivery at the house or place of deposit 
 of the consignee. Buller, J., said, " According to the argument, 
 from the inconvenience that carriers are not bound to deliver goods, 
 I think the same argument tends to establish a much greater 
 inconvenience, the necessity of three contracts in all cases where 
 the goods are sent by a coach or wagon ; one with the carrier, 
 another with the innkeeper, and a third with the porter. But, in 
 fact, there is but one contract ; there is nothing like any contract, 
 or even communication, between any other person than the owner 
 of the goods and the carrier." 
 
 A distinction may be drawn between the two parts of a contract 
 made by a common carrier to carry goods from A. to Z., and there 
 deliver them at some particular address. The carriage from A. to 
 Z. is undertaken in the capacity of a common carrier ; but can a 
 person be said to be a common carrier between the terminus at Z. 
 and the various addresses in Z. to which the goods may be con- 
 signed ? 
 
 But this makes little practical difference, because he cannot avail 
 himself by way of defence of any distinction between the special 
 undertaking and the undertaking of a common carrier. (See 
 Campbell on Negligence.) 
 
 The immd facie obligation of a carrier with respect to delivery 
 may be affected by a well-established and generally well-known 
 custom and usage ; but, to have that effect, it must be so uniformly 
 acquiesced in, by length of time, that the jury will feel themselves 
 constrained to say that it entered into the minds of the parties, and 
 made a part of the contract. [Calin v. Michigan, S^c. By. Co., 71 111. 
 96.) 
 
 American cases decide that " express " carriers ^^r/wzd/ac/e assume 
 the responsibility of common carriers, and are bound, ordinarily, 
 to make personal delivery on arrival at the place of destination. 
 [Ilaslam v. Adams' Express Co., 6 Bosw. 235.)
 
 §6 THE LAW OF CARRIERS. 
 
 Chap. VII. 100. A delivery of the ffoods to a duly-authorized 
 
 Art. 100. iw. J o^ ^ f^ ■ 
 
 ' agent of the owner, or consignee, is a sufficient de- 
 livery. {D'Aiijou v. Beaijle, 3 Harr. & J. 206 ; Letvis 
 y. Western By. Co., 11 Met. 509.) 
 
 But in an action for non-delivery, if the defence is that a de- 
 livery was made to an agent, it must be clearly proved that the 
 person to whom the goods were delivered as agent was duly autho- 
 rized as such. {fiomU v. Bvktol By. Co., 3 H. & N. 1.) In 
 Osfrander v. Brouii (15 Johns. 39), the goods were taken away 
 from the wharf where they were landed without the direction of 
 the consignee, by a carman usually or always employed to trans- 
 port his goods ; yet this was not held to be evidence of a dehvery, 
 as the carman was not to be deemed the general agent of the con- 
 signee for receiving his goods. "Because," said the Court, "a 
 merchant usually selects a carman, and employs him exclusively in 
 carrying goods according to his orders, it by no means follows he 
 is his general agent for receiving goods without orders." 
 
 101. If the carrier delivers the goods at the place 
 directed in accordance with the ordinary usage, he 
 has fulfilled his obligation, and is not liable, though 
 he has delivered them to a person the consignor did 
 not intend. {3BKean v. M'lvor, L. R. 6 Ex. 36; 40 
 L. J. Ex. 30.) 
 
 Martin, B., in delivering judgment, said: " I think the carriers 
 obeyed the directions given to them, and therefore, for that reason, 
 I am of opinion 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 a conversion 
 of goods, there must be something beyond this — some fault or 
 spme wrong; and, in my judgment, it is a question of fact, 
 whether or not their conduct with respect to the delivery of the
 
 THE DELIVERY OF THE GOODS TO THE CONSIGNEE. 87 
 
 goods was negligent. If tliej, "by reason of the directions given ^^^^'^J^- 
 
 by the consignor, 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 received the goods not being the person to whom the 
 goods were addressed, there being no such person there, in my 
 judgment make the carriers responsible as for a conversion." (See 
 post, Chap. XII.) 
 
 It has been held in America, that if a common carrier delivers 
 goods to the wrong person, he is responsible, although the address 
 of the consignee was erroneously given. {McCuUoch v. McDonald, 
 91 Ind. 240.) 
 
 The rule that the owner must bear the loss in case of a mis- 
 delivery arising from his improperly addressing the package, has 
 been applied in America, where the package was carried to the 
 wrong place, and there destroyed by fire, without any fault of the 
 carrier. {South. Exp. Co. v. Kaufman, 12 Heisk. 161.) 
 
 102. If the carrier deliver the goods to a person 
 not entitled to receive them, tliis is a conversion of 
 the goods, for which he is responsible. [Gosling v. 
 Higgins, 1 Camp. 451 ; Garrett v. Willan, 5 B. & A. 
 58.) 
 
 See post, Chap. XII. 
 
 A carrier is bound to deliver goods intrusted to him at the 
 place to which they are addressed ; and if he delivers them else- 
 where, trover lies against him. {Stq)//cnson, v. Hart, 1 Moo. & P. 
 357 ; 4 Bing. 476.) 
 
 A common carrier is not estopped from disputing the title of the 
 person from whom he has received goods to carry. And it is an 
 answer to trover against the carrier by such person, that the goods 
 have been delivered to the real owner on his claiming them. 
 {Sheridan v. New qna>j Co., 28 L. J. C. P. 58.) 
 
 103. If cany carrier employed to deliver iron, 
 leather, fm- or hemp to any workman, to be prepared
 
 88 THE LAW OF CARRIERS. 
 
 ^In'iS' ^^ wrought up, designedly delivers the same to any 
 other person than the person to whom such materials 
 wxre ordered or intended to be delivered by the owner 
 thereof, he is liable to be prosecuted. (17 Geo. 3, 
 c. 57, s. 9.) 
 
 104. If the carrier fails in the discovery of the 
 person mentioned as the consignee, his duty is to hold 
 the goods in some way for the use of the consignor. 
 ^eQ2^ost, Chap. XII. Art. 207, and Chap. IX. Art. 136. 
 
 105. When goods have arrived at the end of the 
 transit the carrier is bound to keep them a reason- 
 able time for the consignee to claim or fetch them, 
 during which time his liability as an insurer continues ; 
 after a reasonable time this extraordinary liability 
 ceases, and he becomes a mere bailee of the goods for 
 liire. (See ante, Art. 96, p. 81.) Whilst the goods are 
 in the j^ossession of the carrier, he is bound to take 
 proper means for their preservation. {Taff Vale Ry. 
 Co. V. Giles, 2 E. & B. 823.) If the goods are de- 
 stroyed by fire after they are deposited in the car- 
 rier's warehouse, and before a reasonable time has 
 elapsed for the consignee to fetch them away, the 
 carrier is liable. [ILjde v. Trent and Mersey Navigation 
 Co., 5 T. E. 389 ; White v. Humphrey, 11 Q. B. 43.) 
 
 Goods were sent bj a carrier, who delivered them to the con- 
 signee accompanied by a printed bill, which stated that " any 
 goods which shall have remained three months in the warehouse 
 without being claimed, or on account of the nonj)ayment of the 
 charges thereon, will be sold to defray the carriage and other
 
 THE DELIVERY OF THE GOODS TO THE CONSIGNEE. 89 
 
 charges thereon, or the general lien, as the ease may be, together Chap vii. 
 
 with warehouse rent and expenses." The consignee sent them 
 
 back to the carrier's warehouse to await his orders. They re- 
 mained there more than a year and then were lost. It was held 
 that the carrier was not, under these circumstances, a mere gra- 
 tuitous bailee of the goods at the time of their loss, and therefore 
 that the consignee might recover against him the value of the 
 goods. Lord Abinger, C. B., said, " A distinction has been pro- 
 perly drawn between the duties of a carrier and a warehouseman. 
 But the party may have so large a compensation as a carrier, as to 
 be sufficient also to remunerate him for acting as a warehouseman, 
 as is the case with many of the canal companies ; and it is quite 
 consistent with both these characters, that he will for a certain 
 time, until fui'ther orders, or for a reasonable time, keep the goods, 
 considering the general remuneration for carrying sufficient to 
 cover this risk also." {Cairns v. Robins, 8 M. & W. 258.) 
 
 A railway company, as carriers, brought some goods by their 
 railway to one of their stations, and immediately gave the con- 
 signee notice of their arrival, and that they held the goods " not as 
 common carriers, but as warehousemen, at owner's sole risk, and 
 subject to the usual warehouse charges." The consignee acquiesced 
 in this, and the goods remained in the charge of the company, and, 
 by their negligence, were damaged. In an action by the consignee 
 against the company : — Held, that on the true construction of the 
 notice, the company were not exempted from all liability, but were 
 bound as bailees to take reasonable care of the goods. [Mitchell v. 
 Lancashire and Yorkshire Ry. Co., L. R. 10 Q. B. 256 ; 44 L. J. 
 Q. B. 107.) 
 
 ^QQpost, Chap. XII. Art. 207. 
 
 106. Where goods arc sent by a carrier to be paid 
 for OD delivery, the consignee is entitled to a reason- 
 able time in which to inspect the goods before he 
 accepts them, and the carrier does not make himself
 
 90 THE LAW OF CAPiRIERS. 
 
 ^Mt'iQQ' I'esponsible for the price by affording reasonable op- 
 portunity for sucli inspection, even where he places 
 them in the hands of the consignee, for that purpose, 
 receiving from him the price, as a pledge for their 
 return, if not accepted. [Lyons v. Ilill^ 46 N. H. 49.) 
 
 As to the duty of a consignee to examine the goods and to 
 ascertain whether they are in good order, see 2^ost, Chap. XII. 
 Art. 210. 
 
 107. If the goods are tendered to the consignee, and 
 he refuses to receive them, the carrier is not necessarily 
 bound to give the consignor notice of the refusal, but 
 he is bound to do what under the circumstances may be 
 reasonable. [Hudson v. Baxendale, 2 H. & N. 575 ; 27 
 L. J. Ex. 93.) Whether the circumstances of the case 
 make it reasonable that the carrier should give such 
 notice, is a question for the jury. {Ih.) 
 
 See note to next Article. 
 
 In that case the carriers, on the refusal by the consignee to 
 receive a puncheon of rum, put it into a warehouse, and left it 
 there for two months without giving notice to the consignor. At 
 the end of this period, it was found that a portion of its contents 
 was gone. In an action by the consignor it was held that the 
 carriers had acted in a reasonable manner, and were not liable. 
 Bramwell, B., said : " I doubt if a consignor has a right to impose 
 on a carrier the burden of doing anything after he has tendered 
 the goods. But assuming that he has, it is sufficient if the carrier 
 does what is reasonable. It was urged that the can-ier must inform 
 the consignor if the consignee refuses to receive the parcel. I 
 wholly deny that as a rule of law. There may he cases in which 
 such a course may be reasonable. But in others the consignor may 
 not be known." 
 
 When a carrier by land has carried goods to their destination,
 
 THE DELIVERY OF THE GOODS TO THE CONSIGNEE. 91 
 
 in pursuance of a contract with one wlio is both consignor and con- ^^Y" YI^- 
 
 signee, and through the default of the latter the goods are left in 
 
 the carrier's hands, he is bound to take reasonable measures for the 
 preservation of the goods, and can recover from the consignee pay- 
 ments he has made on account of expenses so incurred. {Gf. JV. 
 By. Co. V. SicaffieU, 43 L. J. Ex. 89 ; L. R. 9 Ex. 132. See 
 post, Ai'ts. 118 and 207.) 
 
 108. A common carrier, after a refusal of the goods 
 at the consignee's address, is an involuntary bailee, 
 and only ]30und to act with reasonable care and 
 caution with respect to the custody of the goods. 
 {Heugh V. L. 4' N. W. By. Co., L. R. 5 Ex. 51 ; 39 
 L. J. Ex. 48 ; Cox v. Petersen, 30 Ala. 608.) 
 
 Baron Martin, in giving judgment in the case of Sciigh v. 
 L. ^ N. W. By. Co. {Hujmi), said : " 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 ; but when he has done 
 all he has contracted to do as carrier, that condition ceases, and 
 he may be in the 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 act." 
 
 It was decided in Crouch v. G. W. By. Co. (27 L. J. Ex. 34G ; 
 3 H. & N. 183), that where goods are tendered by a carrier to the 
 consignee, who refuses to pay the carriage, whereupon the carrier 
 refuses to deliver the goods, it is the duty of the carrier to retain 
 the goods at their place of destination, at least, for a reasonable 
 time, and during that time to await the directions from, if not to 
 communicate with, the consignor. (See Art. 107.) 
 
 109. If a carrier tender goods for delivery at the 
 house of the consignee, and they are not accepted 
 (the consignee not being in a position at the time to 
 pay for their carriage), the carrier's liability ceases.
 
 92 THE LAW OF CABRIERS. 
 
 Chap. VII. lie not being: oblif^ed to brlno; the sroods more than 
 
 Art 109 o C5 o o 
 
 — — once for delivery. {Storr v. Croivlcu, 1 M'Cl. & Y. 129.) 
 
 110. If a common carrier from A. to B. receives 
 goods to be carried from A. to B., and by the known 
 usage and course of business the goods are to be 
 deposited in the carrier's warehouse at B., the respon- 
 sibility as a common carrier is limited to the arrival 
 of the goods at B., when he holds them not as a 
 common carrier, but as a mere warehouseman. [Eoive 
 V. Piclcford, 8 Taun. 83 ; In re Webb, id. 443 ; 3IcCarty 
 V. Neio York i?y., 30 Pa. St. 247; Angell, 286.) 
 
 The keeping of the goods in the warehouse in such eases is, 
 as was observed by Buller, J., in Garside v. Trent Navigation Co., 
 " not for the convenience of the carrier, but of the owner of the 
 goods ; for when the voyage is performed, it is for the interest of 
 the carrier to get rid of them directly." 
 
 If the carrier agrees to let goods remain on his boat for 90 days 
 after arrival without extra charge, he is hable only as a warehouse- 
 man after arrival. {Hatliorn v. Ely, 28 N. Y. 78.) 
 
 111. A warehouseman does not use ordinary dili- 
 o-ence about the ffoods intrusted to him if he have not 
 his tackle in proper order to crane them into the 
 warehouse, whereby the)^ fall, and are injured. 
 {Thomas v. Day, 4 Esp. 262.) But he is not liable for 
 a loss by mere accident not resulting from his negli- 
 gence. {Garside v. Trent Nav. Co., 4 T. R. 581.)
 
 ( 93 ) 
 
 CHAPTER VIII. 
 
 THE RIGHTS AND REMEDIES OF COMMON CARRIERS OF GOODS. 
 
 Articles 
 
 1. Special Property in the Goods 112 
 
 2. Insurable Interest in the Goods 113 
 
 3. Beasonable Hire for the Carriage of the Goods . . 114— IIG 
 
 4. Recovery of Money paid on accotint of the Goods . 117, 118 
 
 5. Lien 119-128 
 
 1 . S])ccud Propert// in the Goods. 
 112. A common carrier has a special property in ch.viii. 
 
 . . , Art. 112. 
 
 the goods delivered to Inm, and having once acqmred 
 
 the lawful possession of the goods for the purpose of 
 carriage, he is not obliged to restore tliem to the 
 owner again, even if the carriage be dispensed with, 
 unless upon being paid his due remuneration ; for by 
 the acceptance of the goods he has already incurred 
 risks. (Story on Bailm. ; Scotthoni v. South Staford- 
 shire Eij. Co., 8 Ex. 341.) 
 
 A common carrier may maintain an action against 
 any person who takes the goods out of his possession, 
 or does any injury to them (2 Wms. Saund., ed. of 
 1871, p. 94); or if he be robbed he may indict the 
 person robbing him. {Deakin^s case, 2 Leach, 8G2.) 
 
 This right arises from the carrier's general interest in conveying 
 the goods, and his responsibility for any loss or injury to them
 
 94 THE LAW OF CARRIERS. 
 
 Ch. VIII. durina: their transit. (Bacon, Abridff. Contract, C; Jones on 
 Art. 112. ^ \ J o 
 
 Bailm. 80.) 
 
 2, Insurable Interest in the Goods. 
 
 113. A common carrier may insm^e goods wliich 
 are in liis possession for the purpose of conveyance. 
 {Chase v. Washington 3Iutiial Insurance Co. of Cinci?inati, 
 12 Barb. 595. And see 21 A. & E. Ry. Cas. 112.) 
 
 Tliis insurable interest continues so long as the liability of the 
 carrier continues, even where he employs other carriers. {Ibidem ; 
 Miller V. Steam Nav. Co., 13 Barb. 361.) 
 
 Common carriers may insure goods in their possession, as carriers, 
 describing them as " goods in trust as carriers," and such an insur- 
 ance mil cover the whole value of the goods, and if the goods are 
 destroyed by fire, the carrier will be entitled to recover of the 
 insurer their full value, and it will make no difference that under 
 the statute, or by special contract, the carriers were not responsible 
 for losses by fire. {L. 4' N. W. By. Co. v. Glyn, 28 L. J. Q. B. 
 188 ; 5 Jur. N. S. 1004.) 
 
 3. Reasonable Hire for the Carriage of the Goods. 
 
 114. A common carrier is entitled to his reasonable 
 hire for the carriage of the goods, and may in the first 
 instance refuse to take charge of goods unless pre- 
 viously paid the price of their carriage; or, having 
 conveyed them to their place of destination, he may 
 decline delivering them until payment. [Wright v. 
 Snell, 5 B. & A. 353.) 
 
 If the price of carriage is not j)aid before the goods 
 are received, the carrier cannot sue for such price till
 
 THE PAYMENT FOR THE CARRIAGE OF THE GOODS. 95 
 
 they are delivered. {Dames v. Marshall, 18 Q. B. ^^;.^JJJ; 
 785.) — '■ — - 
 
 The price charged by the carrier for the conveyance 
 of the goods must be no more than a reasonable 
 remuneration [Harris v. Pachvood, 3 Taun. 264) ; but 
 apart from any Act of Parliament, he is not bound to 
 charge all persons equally. (Per Willes, J., in Branly 
 v. ^S'. E. Ry. Co., 31 L. J. C. P. 288; Baxendale v. 
 Eastern Counties Ry. Co., 27 L. J. C. P. 137.) 
 
 A common carrier is entitled to make a higher 
 charge for the greater risk attending the carriage of 
 valuable goods, Ijut the charge must be reasonable. 
 [Harris v. Packwood, supra.) 
 
 To support an action for refusing to carry, it is sufficient if the 
 consignor was ready and willing to deal for ready money, and 
 notifies that readiness and willingness to the carrier ; the money is 
 not required to be paid down until the carrier receives the goods 
 which he is bound to carry. {Pickford v. Grand June. Ey. Co., 
 8 M. & W. 372.) 
 
 115. The person primarily liable to pay the carriage 
 is the person with whom the carrier contracts. This 
 is in general the owner of the goods. The consignor 
 is, therefore, as a rule, primarily liable, unless he be 
 forwarding the goods as vendor, in pursuance of a 
 contract of sale ; in that case, as the property in 
 the goods usually passes on delivery to a common 
 carrier, the consignor is deemed (in absence of special 
 circumstances) to enter into the contract as agent of 
 the consignee, the owner of the goods, so that the 
 latter is liable.
 
 96 THE LA W OF CARRIERS. 
 
 ch.viii. But there is nothing to prevent the consignor 
 
 Art. 115. O 1 
 
 making the contract on his own account, and so be- 
 coming personally liable ; and even if he does so, yet 
 where the consignee receives the goods, and promises, 
 either expressly or by implication, to pay the car- 
 riage, such consignee may also in general be sued for 
 the carriage of the goods, as the w^aiving by the carrier 
 of his lien on the goods affords sufficient consideration 
 to support the contract to pay such carriage. {Jesson 
 Y. Solly, 4 Taun. 52 ; Moller v. Young, 25 L. J. Q. B. 
 94; 5 E. &B. 755.) 
 
 116. The carrier has a right to recover the hire and 
 charges paid, although the goods may have suffered 
 damage before they reached him, while in the hands 
 of a preceding carrier. [Botvmcm v. Hilton, 11 Ohio, 
 303; Bissel v. Price, 16 111. 408; White v. Vann, 6 
 Humph. 70.) 
 
 4. Recovery of Money paid on account of the Goods. 
 
 117. Where goods necessarily pass through the 
 hands of several distinct carriers, the last carrier is 
 entitled to be reimbursed any money he may have 
 paid out to the carrier from whom he received the 
 goods, and who has carried them during the earlier 
 part of the journey. 
 
 A carrier has also a right to recover from his em- 
 ployer what he may have paid in booking a parcel 
 where he has been employed to carry the same, and
 
 THE LIEN OF A CARRIER. 97 
 
 to deliver it to some other carrier entitled to make a ^^:\"I- 
 
 Art. 117. 
 
 charge for booking. 
 
 118. A common carrier by land is entitled to re- 
 cover expenses necessarily incurred by him in the 
 preservation of the goods from extraordinary perils, 
 not properly arising from his ordinary duty as a 
 common carrier. (Story on Bailm.) 
 
 As if a sudden flood or storm should do injury to the goods, and 
 some immediate expense for their preservation should become 
 necessary, the carrier would be bound to incur it, and would be 
 entitled to call upon the owner for reimbursement. 
 
 See note to Art. 107. 
 
 5. Lien [((). 
 
 119. A common carrier has a particular or specific 
 lien at common law, which empowers him to retain 
 goods carried by him until the price of the carriage of 
 those particular goods has been paid, unless he has 
 entered into some special contract by which it is 
 waived. [Skinner v. Upshaw, Ld. Raym. 752.) 
 
 A common carrier's claim to a general lien can be 
 su23ported only by proof of general usage, special 
 agreement, or mode of dealing supporting such claim. 
 {Rushforth v. lladfiel'l, East, 519 ; 7 East, 244; 
 Wright V. Snell, 5 B. & A. 350.) 
 
 The lien of a common carrier being a common law lien, he 
 cannot, in the absence of express contract or usage from which a 
 
 (a) As to the lien of railway companies, see j^ost, Chap. XIII. 
 Art. 229. 
 
 M. H
 
 98 THE LA W OF CARRIERS. 
 
 Ch. VIII. contract may be implied, detain the goods of his employers for 
 
 '- anything beyond the price of the carriage of the goods so conveyed 
 
 {Six inner v. Ups/iair, Ld. Eaym. 752), as, for instance, for booking 
 or warehouse room. (Lanibcrf v. Robinson, 1 Esp. 119; G. N.Ry. 
 Co. V. Sicaffield, L. E. 9 Ex. 137, per Pollock, B.) 
 
 The claim of a common carrier to retain goods for his general 
 balance is not encouraged by the Courts. {Aspinall v. Fidford, 3 
 Bos. & Pul. 44, n. ; Holdeniess v. CoIIinson, 7 B. & C. 212.) 
 
 By express stipulation with their customers, carriers may un- 
 doubtedly secure to themselves a general lien. Kailway companies 
 and other carriers have attempted to obtain it by issuing a general 
 notice to that effect. (The cases on these notices are set out in 
 Cross on Liens, p. 283 ; Angell on Carriers, p. 334.) 
 
 In no case can the carrier stop the goods at the commencement of 
 the journey and hold them tliere under a claim of lien, (Per 
 Martin, B., in Wiltshire v. G. W. By. Co., L. E. 6 Q. B. 776, 
 780.) 
 
 The goods must be carried and ready for delivery, or the carrier 
 has no right to detain them for freight, the performance of the 
 contract, on the part of the carrier, being a condition precedent to 
 the right to demand freight. {Palmer v. Lorillard, 16 Johns. 
 348.) 
 
 In England the right of lien exists whether the goods are the 
 property of the person who has tendered them for conveyance, or 
 the property of third parties from whom they have been fraudu- 
 lently taken or stolen. {Exeter Carriers' case, 2 Ld. Eaym. 867.) 
 In America it is held that a common carrier who innocently 
 receives goods from a wrongdoer, without the consent of the owner, 
 express or implied, has no lien upon them for their carriage against 
 the owner, " no man can be divested of his property without his 
 consent." (See cases cited in Angell on Carriers, p. 340.) 
 
 120. The existence of a special contract between 
 a common carrier and his employer, regarding the 
 services to be performed, and the compensation to be
 
 THE LIEN OF A CARRIER. 99 
 
 paid, does not deprive the former of his lien, unless ^^.^JgJ' 
 there is something in that contract inconsistent with • 
 
 such lien. (Per Lord Ellenborough, in Chase v. West- 
 more, 5 M. & S. 180.) 
 
 Credit given, by the contract, to the employer for the price of 
 carriage, beyond the time when the goods carried are to be de- 
 livered and placed out of the carrier's control, is inconsistent with 
 a lien. {Raitt v. IlifchcJI, 4 Camp. 149 ; Craics/iat/ v. Iloinfratj, 
 4 B. & A. 50.) 
 
 This principle has been extended to cases where there was no 
 express agreement to give credit, but where, by the usage of trade, 
 a credit might be claimed. {Ibid.) 
 
 121. Where goods are carried over several succes- 
 sive routes, there is a custom sanctioned by law, for 
 each carrier to collect his freight of the one to whom 
 he delivers the goods, and the last carrier has a lien 
 on them for his own freight and for the advances paid 
 by him. 
 
 122. A carrier who, by the custom of a particular 
 trade, is to be p)aid for the carriage of goods by the 
 consignor, has no right to retain them against the 
 consignee, who has paid the price of them, for a 
 general balance due for the carriage of other goods of 
 the same sort sent by the consignor. (Bailer v. Wool- 
 
 ■ cott, 2 Bos. & Pul. 64.) 
 
 123. Where goods are consigned to an individual, 
 or to his order, the carrier has a right to consider him 
 as the owner of the goods for the purpose of delivery, 
 but not for the collateral purpose of creating a lien on 
 
 H 2
 
 100 THE LAW OF CARRIERS. 
 
 Ch. VIII. the goods as against the owner, in respect of a general 
 
 balance due from the consignee. (Wn'i/ht v. Snell, 
 
 5 B. & A. 350.) 
 
 In that case a carrier had given notice that all goods would be 
 subject to a lieu, not only for the freight of the particuLar goods, 
 but also for any general balance due from their respective owners, 
 and goods were sent to the order of J. S., a factor, the Court held 
 that the carrier had not as against the real owner, any lien for the 
 balance due from J. S. 
 
 124. A carrier bj delivering part of the goods does 
 not abandon his lien upon the rest for his unpaid 
 carriage. He is bound to deliver up to the extent of 
 the freight which has been paid ; but the moment that 
 he has delivered enough to satisfy that, he has his lien 
 upon the whole of the remainder of the goods for the 
 unpaid balance of the carriage. (Fx parte Cooper, 
 11 Ch. D. 68; 48 L. J. Bkcy. 49.) 
 
 It has been held in America that delivery by a common carrier, 
 of a part of the goods transported, without payment of freight 
 does not discharge the lien upon the remainder for the whole 
 amount, unless such was the intention of the parties ; and the 
 question of intention is for the jury. (iW;r IlacoiandNortJunnpton 
 Co. v. CamphcU, Mass. 104.) 
 
 125. The general rule, that a lien is defeated by 
 delivering up possession of the goods after the lien has 
 attached, is applicable to carriers to the same extent 
 as in other cases. (See Addison on Contracts, 8th ed. 
 p. 569.) 
 
 But if the carrier loses the possession by fraud, the lien revives 
 if possession is recovered. {Wallace v. Wooclgate, Ky. & M. 194.)
 
 THE LIEN OF A CARRIER. 101 
 
 A delivery of the ffoods to a common carrier for conveyance to Ch. Vlll. 
 . . . / , Art. 125. 
 
 the buyer is such a delivery of actual possession to the buyer 
 
 through his agent, the carrier, as suffices to put an end to the 
 vendor's lien. (See cases in n. 3, p. 602, of 1st ed. of Benjamin on 
 Sales.) 
 
 As to suing the consignee for the price of the goods received by 
 him from the carrier under an express or implied promise to pay 
 the carriage, see Chap. VIII. Art. 115. 
 
 126. A lien does not autliorize the carrier to sell 
 the goods over whicli the lien extends. (See 3fuUmer 
 V. Florence, 3 Q. B. D. 484 ; 47 L. J. Q. B. 700.) 
 
 If the goods are sold, the lien is waived, and the seller is liable 
 for the value of the goods, and cannot set off the amount of his 
 Hen. (Ibid.) 
 
 It has been held in America that the carrier can only sell the 
 goods upon unquestionable proof that the consignee cannot be 
 found, and that they are perishable. In the absence of a control- 
 ling necessity to sell the goods, the carrier can only enforce his lien 
 by due process of law ; meanwhile carefully storing them. {Eankiii 
 V. Blemphis, S^c. Packet Co., 9 Heisk. 5G4.) 
 
 The case of MuIUner v. Florence, supra, was decided before the 
 passing of the Innkeepers Act, 1878, which enables a landlord to 
 dispose of goods left with him after six weeks. 
 
 127. A carrier is not entitled to make any charge 
 for warehousing the goods, during such time as he 
 may be retaining them as a lien for his carriage. 
 (British Fmpirc Shipping Co. v. Somes, 8 C. & F. 338 ; 
 E. B. & E. 353.) 
 
 In that case Lord Campbell, C. J., 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
 
 102 THE LAW OF CARRIERS. 
 
 Ch. VIII. sucli a remedy is permitted, the common law does not seem gene- 
 '- '- rally to give him the costs of enforcing it." 
 
 128. Tlie lien wliicli a carrier lias on goods carried 
 for the carriage money is to be exercised subject to 
 the obligation of keeping the goods for such a time in 
 such a place as may be reasonabl}" adapted for allow- 
 ing the consignee means of taking possession of them 
 on payment of the charge. (Crouch v. G. W. 7?y. (7(9., 
 27 L. J. Ex. 345 ; post, Chap. XII. Art. 20G.) 
 
 A carrier has in no case a right to use the goods detained by 
 him. And if perishable articles be detained he is bound to exercise 
 every care in their preservation. {Scarfe v. Morgan, 4 M. & W. 
 
 270.)
 
 ( 103 ) 
 
 CHAPTER IX. 
 
 THE EIGHTS AND DUTIES OF THE VENDOE AND VENDEE OF THE 
 GOODS IN EELATION TO THEIE CONVEYANCE BY A CAERIEE. 
 
 1. Generally Arts. 129—137. 
 
 2. Stoppage in Transitu Arts. 138— 14G. 
 
 1 . Generally. 
 
 129. The delivery of goods by the vendor to a chap ix. 
 
 common carrier, for the purpose of transmission to the 
 
 vendee, will, in the absence of any special arrange- 
 ment, and where the contract is otherwise binding, 
 amomit to a delivery to the vendee, so as to vest the 
 property in the goods in him. 
 
 Where the vendor is bound to send the goods to the 
 purchaser, the delivery of the goods to a common 
 carrier, a fortiori^ to one specially designated by the 
 purchaser, for conveyance to him, or to a place 
 designated by him, constitutes an actual receipt by 
 the purchaser. {Dawes v. PecJc, 8 T. R. 330 ; Cusack 
 V. Robinson, 30 L J. Q. B. 2G1 ; Smith v. Hudson, 34 
 L. J. Q. B. 145 ; and judgment of Lord Cottenham, 
 in Diuilop V. Lambert, 6 C. & F. 620 ; Blackburn on 
 Contract of Sale (2nd ed.), p. 240.) 
 
 In such cases the carrier is, in contemplation of law, the bailee 
 of the person to whom, not by whom, the goods are sent, the latter
 
 104 THE LAW OF CARRIERS. 
 
 Chap. IX. in employing the carrier being considered as an agent of the former 
 
 '- '- for that purpose. If the vendor, however, expressly agrees to 
 
 deliver at a certain 'place, he will be assumed to undertake the risks 
 of carriage to that place ; and a carrier taking goods on the way to 
 that place would be presumed to be his agent, and not the buyer's. 
 {Dunlop V. Lambert, supra; G. IF. Ey. Co. v. Bagge, 15 Q. B. D. 
 625 ; 54 L. J. Q. B. D. 599.) 
 
 It must not be forgotten that the carrier only represents the 
 purchaser for the purpose of receiving, not accepting, the goods. 
 (See Ai't. 132.) 
 
 If the reason why the delivery of the goods to the carrier 
 appropriates them to the contract of sale, and vests the property in 
 the purchaser, is that the carrier is an agent of the purchaser, 
 having authority to receive the goods for him, it follows that 
 when the carrier receives the goods under a contract with the 
 vendor, by w^hich he agrees to keep possession of the goods subject 
 to the vendor's orders, the property is not transferred : for iu such 
 a case it is clear that the carrier does not receive the goods as an 
 agent for the purchaser. (See Blackburn on Contract of Sale, 
 2nd ed. p. 140.) 
 
 130. If the vendor sell goods, undertaking to make 
 the delivery himself at a distant place, thus assuming 
 the risks of the carriage, the carrier is the vendor's 
 agent. [Dunlop v. Lambert^ 6 C. & F. 600.) 
 
 See Art. 129. 
 
 131. The receipt of goods by a carrier, although 
 appointed by the purchaser, does not constitute an 
 acceptance within the Statute of Frauds, the carrier 
 being only an agent for the purpose of receiving and 
 carrying the goods for his employer. [Astey v. Emeri/j 
 4 M. & S. 262 ; Smith v. Hudson, 34 L. J. Q. B. 145 ;
 
 THE RIGHTS OF THE VENDOR AND VENDEE OF THE GOODS. 105 
 
 and cases cited in Benjamin on Sales, 3rd ed. p. 143 ; ^^JPjg^^- 
 and Blackburn on Contract of Sale, 2nd ed. pp. IT, ■ 
 
 139.) 
 
 If the purchaser deals with the carrier so as to 
 convert him into an agent for cmtocly, holding the goods 
 as the purchaser's servant or agent, then the carrier's 
 receipt and acceptance is the receipt and acceptance 
 of the purchaser. 
 
 An agent for custody is a person who has received goods by the 
 direction and authority of the purchaser as a depositary or bailee 
 invested with authority to receive goods and sell them for the 
 purchaser, or to hold them generally on account of the latter at 
 his disposal, and not for the purpose of helping the goods on a 
 stage further in a direct course of transmission to him. (See 
 Addison on Contracts, 8th ed. p. 962.) The delivery to such 
 agent is a delivery to the principal, and the fransitus, consequently, 
 is determined as soon as the goods reach his hands ; and if the 
 transit be once at an end, it cannot commence de novo, merely 
 because the goods are again sent upon theh travels towards a new 
 and ulterior destination. {Diron v. Bakhcln, 5 East, 184 ; Ex parte 
 Cooper, 11 Ch. D. m, post, Axt 142.) 
 
 Delivery at a railway station named by the purchaser, in pursu- 
 ance of a parol order by him, is not evidence of acceptance. {Smith 
 V. Hudson, 34 L. J. Q. B. 145.) 
 
 132. Although the acceptance and receij^t of a 
 carrier to whom goods are delivered to be conveyed to 
 a purchaser are not the acceptance and receipt of the 
 purchaser within the meaning of the Statute of Frauds, 
 yet a delivery, by a vendor to a carrier, of goods sold 
 is a sufficient delivery to the pm^chaser to enable the 
 vendor (if the contract of sale is properly authenti-
 
 106 THE LAW OF CABBIEIiS. 
 
 Chap. IX. cated) to maintain an action for the price. (Addison 
 
 Art. 132. ^ •*• ^ 
 
 on Contracts, 8tli ed. p. 950.) 
 
 The dehvery of the goods to the carrier operates as a dehvery to 
 the purchaser ; the whole property immediately vests in him ; he 
 alone can bring an action for any injury done to the goods ; and 
 if any accident happens to the goods, it is at his risk [Dntfon v. 
 Solomonso)?, 3 Bos. & Pul. 584; Tregellcs v. Seu-el/,7 H. & N. 574), 
 unless by the terms of the contract the transfer of the right of 
 property and risk are made dependent on the arrival of the goods 
 at their place of destination. (Calcutta, Sfc. Steam Nav. Co. v. De 
 Matios, 33 L. J. Q. B. 214.) The only exception to the purchaser's 
 rights over the goods is that the vendor, in case of the insolvency 
 of the purchaser, may stop them in transitu. [Ex parte Rosevear 
 China Clay Co., 11 Ch. D. 560.) 
 
 133. If the vendor is authorized and empowered to 
 select the goods and forward them to the purchaser, 
 the selection by the vendor, and the delivery of the 
 goods to a carrier to be conveyed to tlie purchaser, 
 will have the effect of transferring the ownership and 
 risk to such purchaser, provided there is a binding 
 contract by note in writing, by part payment, or by 
 part acceptance, and the selection is made according 
 to the orders or authority given. {Fragano v. Long., 
 4 B. & C. 221 ; Broione v. Hare, 29 L. J. Ex. 6 ; 4 H. 
 & N. 822.) 
 
 134. The vendor is bound, when delivering to a 
 carrier, to take the usual precautions for ensuring the 
 safe delivery to the vendee. [Clarice v. Ilutckins, 14 
 East, 475 ; BiicJcman v. Levy, 3 Camp. 414 ; Cotliay v. 
 Tide, 3 Camp. 129.) 
 
 In Clarice v. Hutchins, the vendor, in delivering goods to a
 
 THE RUIITS OF THE VENDOR AND VENDEE OF THE GOODS. 107 
 
 trading vessel, neglected to apprise tlie carrier that the value of Chap^ix. 
 
 the goods exceeded 5/., although the carriers had published, and it 
 
 was notorious in the place of shipment, that they would not be 
 answerable for any package above that amount unless entered 
 and paid for as such. The package was lost, and on the vendor's 
 action for goods sold and delivered, it was held by the King's 
 Bench, Lord EUenborough giving the decision, that the vendor 
 had not made a delivery of the goods; not having "put them in 
 such a course of conveyance as that, in case of a loss, the defendant 
 might have his indemnity against the carriers." (See Benjamin 
 on Sales, 3rd ed. p. 687.) 
 
 135. Where goods are ordered from a distant place, 
 the vendor's duty to deliver them in merchantable 
 condition is complied with if the goods are in proper 
 condition when delivered to the carrier, provided the 
 injmy received during the transit does not exceed that 
 which must necessarily result from the transit. [Bull 
 V. Rohison, 24 L. J. Ex. 165 ; 10 Ex. 342.) 
 
 In that case iron was sold in Staffordshire, deliverable in Liver- 
 pool in the winter, and the vendor was held to have made a good 
 delivery, although the iron was rusted and unmerchantable when 
 delivered in Liverpool, it being proved that this deterioration was 
 the necessary result of the transit, and that the iron was bright 
 and in good order when it left Staffordshire. 
 
 136. When the purchaser refuses to receive the 
 goods from the carrier, the latter holds them as the 
 agent of the consignor from whom he received them, 
 and there is no acceptance and actual receipt by the 
 purchaser within the meaning of the Statute of Frauds, 
 although the latter has directed the mode of convey- 
 ance, and pointed out the particular carrier to be em-
 
 108 THE LAW OF CARRIEES. 
 
 Art^is?' ployed. {Astey v. Emcnf, 4 M. & S. 262 ; Norman v. 
 -^ — - PMlUps, U M. & W. 277.) 
 
 137. Where goods delivered to a carrier to deliver 
 to a consignee are lost tliroiigli the default of the 
 carrier, the consignee is the proper person to sue, for 
 the consignor was his agent to employ the carrier; 
 but it is otherwise when the property in the goods 
 has not yet passed to the vendee, as where there is no 
 writing sufficient to satisfy the Statute of Frauds, and 
 the carrier was not of his selection (6'(9«2f^5 v. Chaplin^ 
 3 Q. B. 483 ; CoomJjs v. Brist. and Ex. Ry. Co., 3 H. & 
 N. 510); or where the goods are sent merely for ap- 
 proval [Stvain V. Shepherd, 1 M. & Rob. 224), or the 
 consignee is the agent of the consignor [Sargent v. 
 Morris, 3 B. & A. 277), or the carrier has contracted 
 to be liable to the consignor in consideration of the 
 latter's becoming responsible for the price of the 
 carriage. {3foore v. Wilson, 1 T. R. 659 ; Davis v. 
 James, 5 Burr. 2680.) 
 
 See ante, Art. 130. 
 
 As to the measure of damages where goods are lost by the 
 carrier, see post , Chap. XII., Art. 200. 
 
 2. Stoppage in Trans ita. 
 
 138. If the purchaser of the goods becomes bank- 
 rupt or insolvent before payment of the price, the 
 vendor is entitled, so long as the goods are in transitu, 
 and have not reached their final destination or come
 
 STOPPAGE IX TRANSITU. 109 
 
 into the manual possession of the ^Hircliaser, or that 9^^p,3^- 
 of any other party whom he may have appointed his 
 agent finally to take possession of and keep the goods 
 for him, to retake them and put himself into the same 
 situation as if he had never parted with the actual 
 possession of them. [Gibson \. Carruthers^ 8 M. & W. 
 331 ; Grice v. Richardson, 3 App. Cas. 319 ; Addison on 
 Contracts, 8th ed. p. 959.) 
 
 This is a right which arises solely upon the insolvency of the 
 buyer, and is based on the plain reason of justice and equity that 
 one man's goods shall not be applied to the payment of another 
 man's debts, (Per Lord Northington, C, in B'AquUa v. Lambert, 
 2 Eden, 77.) 
 
 The stoppage to be effectual must be on behalf of the vendor, 
 in the assertion of his rights as paramount to the rights of the 
 buyer. ( JFiL^on v. Anderton, 1 B. & Ad. 450 ; Siff'l-in v. JFrai/, 6 
 East, 371.) 
 
 " There is no necessity that the buyer should have been formally 
 a bankrupt, if he have become insolvent. There must, however, 
 be great practical difficulty in establishing the actual insolvency of 
 one who still continues to pay his way ; and as the carrier obeys 
 the stoppage in transitu at his peril if the consignee be in fact 
 solvent, it would seem no unreasonable rule to require that, at the 
 time the consignee was refused the goods, he should have evidenced 
 his insolvency by some overt act." (Blackburn on Contract of 
 Sale, 2nd ed. p. 382.) 
 
 Lord Justice James said that a company was insolvent when its 
 assets and existing liabilities were such as to make it reasonably 
 certain that the existing and probable assets would be insufficient 
 to meet the existing liabilities. A man is insolvent, said "Willes, J., 
 when he is not in a condition to pay his debts in the ordinary 
 course, as persons carrying on trade usually do. 
 
 " It is sufficient for the purpose of stoppage in transitu to show
 
 110 THE LAW OF CARRIERS. 
 
 Chap. IX. tliat tlie vendee was in such circumstances as not to be able to meet 
 
 Art 138 
 
 '■ '- his engagements." [ScJiotHmaus v. Lane, and York. By. Co., L. R. 
 
 1 Eq. 360.) 
 
 139. Goods delivered to a carrier to be conveyed 
 from a vendor to a purchaser are held to be in transiiu; 
 although they may have been consigned to a carrier 
 specially appointed by the purchaser to receive them, 
 and they remain in transitu until they have reached 
 the hands of the vendee, or of one who is his agent to 
 give them a new destination. [Bolton v. Lane, and Yorlt. 
 By. Co., L. R. 1 C. P. 431 ; 35 L. J. C. P. 137; Ex 
 imrte Rosevear China Clay Co., 11 Ch. D. 560; Bethell 
 V. ClarJc, 20 Q. B. D. 615 ; 57 Q. B. D. 302.) 
 
 The principle to be deduced from the decided cases is that the 
 inin.vtHS is not at an end until the goods have reached the place 
 named by the buyer to the seller as the place of their destination. 
 (See cases cited in Pioscoe's Nisi Prius Evidence, 14th ed. p. 912.) 
 
 But the mere arrival of the goods at their destination will not 
 suffice to defeat the vendor's rights. The vendee must take actual, 
 if he has not obtained constructive, possession. (See Benjamin on 
 Sales, 3rd ed. p. 847.) 
 
 If the goods are in the custody of the carrier, as a warehouseman 
 and not as a carrier, the unpaid vendor has no right to stop them. 
 {WentH-orth v. Outhivaite, 12 L. J. Ex. 172; 10 M. & W. 436; 
 ^mlth V. H:ud>ion, 34 L. J. Q. B. 145.) 
 
 Erie, C. J., in giving judgment in Bolton v. Lane. 8^ YorJi. By. 
 Co., supra, said : — " Before the goods arrived notice had been given 
 by the vendee that he intended to dispute his liability to take them, 
 and after they arrived orders were given to the railway company to 
 take them back. The vendor refused to receive them, and, being 
 refused both by vendor and vendee, they remained in the defen- 
 dants, the railway company's, hands. I am of opinion that they
 
 STOPPAGE IN TRANSITU. Ill 
 
 never ceased to be in fransifu. {James v. Griffin, G L. J. Ex. 241 ; ^j,j^i39 / 
 
 2 M. &. W. 623.) .... Carriers, no doubt, may become ware- 
 
 housemen for the consignee, and in many cases do ; but there must 
 be a change from their position as carriers to the position of ware- 
 housemen, and the parties concerned must make this change ; but 
 there was no contract here to make the railway company ware- 
 housemen." And Willes, J., said :— " Different opinions have been 
 held on the question of whether a part delivery is a constructive 
 delivery of the entii-e goods comprised in the contract, so as to put 
 an end to the right to stop in transitu as to the whole of the goods. 
 At one time it was held that there was a constructive delivery of 
 the whole. This, however, has since been questioned and dissented 
 from ; and it has been said only to be a constructive delivery of 
 the whole if the vendor gives and the vendee takes possession of 
 part, meaning thereby respectively to give and take possession of 
 the whole." 
 
 140. If the vendee takes the goods out of the pos- 
 session of the carrier into his own before their arrival 
 at their destination, the right to stop in transitu is at 
 an end. ( Whitehead v. Anderson, 9 M. & W. 518, 529.) 
 
 A mere demand by the vendee before the end of the 
 journey will not defeat the right. (Jackson v. Nichol, 
 5 N. C. 508; Coventry v. Gladstone, L. R. 6 Eq. 44; 
 37 L. J. Ch. 49-2.) 
 
 Whether the frai/sif/is is terminated by the buyer prematurely 
 taking possession against the will of the carrier, and so tortiously 
 against him, has been questioned. (See Blackbiu'n on Contract of 
 Sale, 2nd ed. p. 375.) " The law in general discountenances 
 violence, and it would seem not consistent -svith its general poHcy 
 to give a man a benefit in consequence of his forcible or fi-audulent 
 wrong against a third party."
 
 112 THE LAW OF CARRIERS. 
 
 Chap. IX. 141, When goods are placed in the possession of a 
 
 carrier to be carried and delivered, the transitiis 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 
 carrier, but as his agent, or as a warehouseman or 
 wharfinger. [In re ^f-Laren, Ex parte Coojjer, 11 Ch. 
 D. 68; 48 L. J. Bkcy. 49; Ex fmrte Barro?u, 46 L. J. 
 Bkcy. 71 ; 6 Ch. D. 783.) 
 
 If the carrier enters expressly, or by implication, into a new 
 agreement with the purchaser, distinct from the original contract 
 for carriage, to hold the goods for the purchaser as his agent, not 
 for the purpose of expediting them to the place of original desti- 
 nation pursuant to that contract, but in a new character for the 
 pm-pose of custody on his account, and subject to some new or 
 further order to be given by him, the transitus is at an end, and 
 the goods are constructively in the possession of the pui-chaser, and 
 cannot be retaken by the vendor. [Whitehead v. Anderson, 9 
 M. & W. 518 ; Addison on Contract of Sale, 8th ed. p. 962.) 
 
 But the assent of the carrier to hold the goods as an agent for 
 custody on behalf of the purchaser must be clearly established in 
 order to put an end to the transitus, and deprive the vendor of his 
 right to stop the goods. {Bolton v. Lane. 8f York. Ry. Co., L. R. 
 1 C. P. 431 ; 35 L. J. C. P. 137.) 
 
 A mere promise by the carrier to deliver the goods to the pur- 
 chaser as soon as they can be got at is not enough to bring them 
 into the possession, actual or constructive, of the purchaser. 
 {Coventry v. Gladstone, supra.) 
 
 Where goods are delivered to a middleman in the first instance 
 in the capacity of a carrier, any act of the buyer whereby he 
 constitutes the carrier his warehouseman will be equivalent to 
 actual receipt.
 
 STOrPAflE TN TRAKSTTU. 113 
 
 142. If the carrier delivers the goods at their in- ^^^^^If- 
 tended destination to some person other than the 
 buyer, as to a wharfinger or warehouseman, the transit 
 
 still continues, unless he takes as agent for the buyer, 
 {In re Worsdell, 6 Ch. D. 783.) 
 
 143. Though the goods remain in the actual pos- 
 session of the carrier, yet, if the purchaser has done 
 any act equivalent to taking possession, the right of 
 the vendor to stop them is determined. (Ullis v. Jliinf, 
 3 T. R. 464 ; Z. cj^ A^. W. R/j. Co. v. Bartlett, 31 L. J. 
 Ex. 92 ; 7 H. & N. 400.) 
 
 144. The vendor's right to stop in transitu cannot 
 be defeated by a usage for carriers to retain goods as 
 a lien for a general balance of accounts between them 
 and their consignees. {Oppenlidm v. Russell, 3 Bos. & 
 Pul. 42, 119.) 
 
 146. A stoppage in transitu can be effected by a 
 notice to the carrier having charge of the goods 
 stating the vendor's claim, forbidding delivery to the 
 consignee, or requiring that the goods shall be held 
 subject to the vendor's orders. (Benjamin on Sales 
 (3rd ed.), p. 849.) 
 
 The carrier is entitled to express notice from tlie consignor before 
 he will be liable for not stopping goods in transit. 
 
 If the notice is given to an employer whose servant has the 
 custody, it must be given at such a time, and under such circum- 
 stances, that the employer may be able to communicate it to his 
 servant in time to prevent a delivery to the consignee. {WJiiteJiead 
 V. Anderson, 9 M. & "W. 518.) 
 
 M. I
 
 114 THE LAW OF CARRIERS. 
 
 Chap. IX. In a recent case in the Court of Appeal (P/ielps, Stolxcs ^ Co. v. 
 
 Art 145 
 
 1 11 Comber, 29 Cli. D. 813), it was doubted whether, under any 
 
 circumstances, a notice to stop goods in transitu can be effectual, 
 if addressed to the consignees onlj^, and not to the owner or master 
 of the ship which carries them. 
 
 No particular form of notice is required. In Ex parte Falk (14 
 Ch. D. 446), the notice was by cable from Liverpool to Calcutta, 
 and the Court held the notice sufficient. 
 
 146. Whenever the right of stoppage in transitu 
 exists, and notice lias been given to the carrier, after 
 he has received the goods for carriage, and during 
 their transit, not to deliver them over, the carrier is 
 not only excused for non-delivery to the consignee, 
 hut he is also subject to an action, if, after such notice 
 and tender of freight, he should refuse to rc-dcliver 
 the goods. (Angell, p. 322.)
 
 ( nrj ) 
 
 Part II. 
 
 CARRIERS OF GOODS BY RAILWAY («). 
 
 — ♦ — 
 
 CHAPTER X. 
 
 THE OBLIGATIONS OF A RAILWAY CO:\IPANY TO RECEIVE GOODS 
 FOR CONVEYANCE, AND THEIR DELIVERY TO THEM. 
 
 yliis. 
 
 1. Ohli(jation to carnj Goods 1-17, 148 
 
 2. Goods of a Dangerous Nature 149 — 151 
 
 3. When Refusal to carr;/ justifahJe lo'2 — 157 
 
 4. Packed Parcels '^■^'^ 
 
 5. Duty of Consignor as to Goods requiring great Care . . 159 
 
 6. Goods imperfccthj addressed ICO 
 
 7. Right of Comimnij to he informed as to Contents of Pack- 
 
 age IGl 
 
 8. Right of Compang to he paid hefore receiving Goods. ... IG'2 
 
 9. What is a sujficient Delivery to the Railway Company . . 1G3 
 
 10. Special Contract 1G4, 165 
 
 11. Damages for Refusal or Failure to carry Goods ICi 
 
 12. Booking Offices off the Railway 166 
 
 147. Section 2 of the Railway and Canal Traffic chap x 
 
 ■*■■*•• '^ Art. 147. 
 
 Act, 1854, imposes on a riiilway company the duty 
 
 to afford reasonable facilities for carrying all goods 
 
 («) In connection with tLis chapter reference should be mado to 
 Chap. IV. {ante, p. 21), on " The obligations of a common carrier to 
 receive goods," as being applicable to a great extent to the carriage 
 of goods by railway ; and also to Chap. XIV., as to the obligation of a 
 railway company to give due and reasonable facilities for the receiving 
 and forwarding of traffic. 
 
 i2
 
 116 THE LAW OF CAR El BUS. 
 
 P^^^.f- (other than specially dangerous goods). Therefore a 
 
 railway company cannot absolutely refuse to carry 
 
 traffic which they have facilities for carrying, even if 
 they do not profess to carry, and do not generally 
 carry, such traffic. The Railway and Canal Traffic 
 Act, 1854, does not make a railway company liable 
 as common carriers in respect of goods which they do 
 not carry as such. [DicJcson v. G. N. Rfj. Co.^ 18 Q. 
 B. D. 176; 56 L. J. Q. B. 111.) 
 
 A railway company are under the same obliga- 
 tions as a common carrier w^ho undertakes to carry in 
 accordance with the provisions of the Eailway and 
 Canal Traffic Act, 1854 ; therefore questions as to how 
 far a railway com2:)any are liable to carry goods of 
 every kind, or for all persons alike, or as to ho^v far a 
 sender of goods may require delivery at any station 
 he may aj^point, are to be determined in each case, 
 not with reference to what a railway company may 
 choose to do, or may ordinarily do, but with reference 
 to what may be within their powers, and at the same 
 time a reasonable requirement. [Thomas v. North 
 Staffordshire lif/. Co., 3 Rj. & Ca. Tr. Ca. 1. Decided 
 by the Railway Commissioners.) 
 
 " The Eailway Commissioners have jurisdiction to say that 
 reasonable facilities shall be given, and I think that under their 
 powers they had a right to say that the railway company should 
 carry those articles which they said they would not carry." 
 Bramwell, L. J., in Brown v. G. W. Ey. Co. {post, Chap. XIV.). 
 The Commissioners, in Iiiues' case [j^osf, Chap. XIV.), said, "The 
 question whether a railway company could under that Act of 1854 
 be compelled to become carriers does not appear to us to be a part 
 of the present case, because here both companies are carriers, and
 
 THE DELIVERY OF THE GOODS TO THE RAILWAY COMPANY. 117 
 
 to them as such, we have no doubt that every portion of the second Chap. X. 
 
 Art. 147. 
 section of that Act does apply, and that it obliges them to conduct '- '- 
 
 their business so as to give to the public all reasonable facilities, 
 
 and makes them amenable to our jurisdiction for any failure in that 
 
 respect." 
 
 In Garton v. Bristol 8^ Ex. By. Co. (30 L. J. Q. B. 293), Cockbum, 
 C. J., said, "I do not see that there is any distinction between rail- 
 way companies and the ordinary common carriers. ... I think 
 that where a company have opened the line, and have put carriages 
 upon it, it is no longer optional with them to say ' we will or 
 will not carry goods which are brought to us,' if those goods are 
 brought at reasonable times, and a proper amount is tendered for 
 the carriage." 
 
 In Thomas v. North Staffordshire B//. Co. (supra), the railway 
 company delivered minerals at T. station, but refused to deliver 
 there damageable traffic consigned to the applicant, and delivered 
 such traffic at L., one mile and a half from T., which was their 
 general goods station for T. It being proved that the accommo- 
 dation at T. station was insufficient to receive all the T. goods 
 traffic, and that the railway company had no power to enlarge it, 
 the Commissioners held that the applicant was not entitled to have 
 damageable goods delivered at that station. It appears from the 
 judgment that if the accommodation at T. station had been suffi- 
 cient to receive all traffic similarly sent, the railway company 
 would have been ordered to deliver damageable goods to the appli- 
 cant at T. station. The Commissioners, in giving judgment, said : 
 " It was part of the defence made for the company, tliat they were 
 entitled, on common law principles, to put such restrictions as they 
 pleased on their occupation as carriers by railway ; and it was con- 
 tended by their counsel that the duties of railway companies were 
 not more extensive than those of other land carriers, and tliat a 
 railway company had the right of a common carrier to refuse to 
 carry goods, or any particular kind of goods, to places to which 
 the company was not in the habit of carrying, or to carry other- 
 wise than in accordance with such conditions as it mifrht hold out
 
 118 THE LAW OF CARRIERS. 
 
 Chap. X. to tlie public. But there are several Acts whicli have extended the 
 Art. 147. ... 
 duties of railway companies beyond those of common carriers, and 
 
 amongst them is the Traffic Act of 1854, which seems to us to put 
 every railway company under the same obligations as a common 
 carrier would put himself under, who might possess or undertake 
 to carry in accordance with its provisions, and which requii-es 
 every railway company, according to its powers, to afford all 
 reasonable facilities for the receiving, forwarding, and delivering 
 of traffic upon and from its railways. Questions, therefore, as to 
 how far a sender of goods may require delivery at any station he 
 may appoint, or as to how far a company is liable to carry goods 
 of every kind, or for all persons alike, should, we think, be deter- 
 mined in each case, not with reference with what a railway com- 
 pany may choose to do or may ordinarily do, but with reference to 
 what may be within its powers and at the same time a reasonable 
 requirement." (See also Aberdeen Lime Co., ^r. v. Gt. N. Scotland 
 Ry. Co., 3 Ey. & Ca. Tr. Ca. 205 ; and note p. 96 of 1 Ey. & Ca. 
 Tr. Ca.) 
 
 As to the power of a railway company to close a passenger 
 station, see Art. 236. 
 
 It was formerly held that the obligation of railway companies 
 as to the receiving of goods for carriage was not more extensive 
 than that of ordinary carriers ; the Eailways Clauses Consoli- 
 dation Act, 1845 (8 Vict. c. 20, s. 86), and the special Acts of 
 the companies not making it obligatory on them to carry. {John- 
 son V. Midland By. Co., 4 Ex. 367 ; Oxlade v. N. E. Ey. Co., 15 
 C. B. (N. S.) 680.) And that, therefore, railway companies were 
 only common carriers of such things as they publicl}^ professed to 
 carry. [Yovlx, Neu-eantk and Bcncieic By. Co. v. Crisj), 14 C. B. 
 529.) 
 
 The power to carry derived from the 86th section of the Eailwaj^s 
 Clauses Act, 1845, is clearly permissive. Sometimes the special Act 
 imposes upon the company the obligation to act as carriers. (See 
 Gt. Northern Ey. Act, 13 & 14 Yict. c. Ixi. ; Lane. & York. Ey. 
 Act, 22 & 23 Vict. c. ex., and Man. Sheff. & Line. Ey. Act.)
 
 THE DELIVERY OF THE GOODS TO THE RAILWAY COMPANY. 119 
 
 " It is important, however, to observe that the railway company Chap. x. 
 
 only obtains a permissive right to charge a maximum rate for the 
 
 goods it elects to carry, and is not bound to carry every class of 
 goods or minerals which may be offered to it by the public. Thus 
 railway companies who become carriers may decline to carry such 
 classes of articles as they think fit ; and as the railways are not 
 ordinarily accessible to the use of private persons with their engines 
 and carriages, the public fail to obtain the benefit of those pro- 
 visions of the general Act (except so far as the companies may 
 choose to afford them), empowering all persons to use the railways, 
 which were intended to render the railways a general means of 
 conveyance. Considering how much of the whole traffic of the 
 country must now go by railwaj^, we recommend, that railway 
 companies should be bound by law to provide means of conveyance 
 for, and to convey all articles tendered to them, subject to such 
 restrictions as the circumstances of the railway may require, which 
 should be defined by bye-laws to be approved as provided by the 
 Act for the Eegulation of Eailways." — Report of Royal Com- 
 mission on Railways, 1867. The law was stated as above in this 
 Report. This must, however, now be read subject to the judgment 
 in Dichson v. Gf. N. Bi/. Co. {ante, p. 110), where Lindley, L. J., 
 said as follows : — 
 
 " There are few enactments which, in plain and distinct terms, 
 impose upon railway companies the duty of carrying any parti- 
 cular things. They are bound to carry troops (7 & 8 Yict. c, 85, 
 s. 12) and mails (3G & 37 Yict. c. 48, s. 18), but until the passing 
 of the Railway and Canal Traffic Act, 1854, the duty of rail- 
 way companies to carry any particular class of goods depended 
 upon whether they did or did not profess to carry such goods as 
 common carriers. The Railways Clauses Consolidation Act, 1845, 
 did not impose on railway companies any duty to carry goods of 
 which they were not common carriers by reason of their own con- 
 duct and profession. This Avas decided by JoJnisou v. Midland Rij, 
 Co. (4 Exeh. 3G7), and was recognised as clear and settled law by 
 Vice-chancellor Wood in Hare v. L. and N. IF. Ey. Co. (2 J. & 
 H. 80).
 
 120 THE LAW OF CARRIERS. 
 
 Chap.x. " The Railway and Canal Traffic Act, 1854, materially altered 
 
 Art 14Y 
 
 '■ '- the law in this respect, for it enacts, by sect. 2, that every railway 
 
 company shall afford all reasonable facilities for receiving, for- 
 warding, and delivering traffic ; and by sect. 1 the word ' traffic ' 
 includes passengers and their luggage, and goods, animals, and 
 other things. This Act imposes on railway companies the duty to 
 afford reasonable facilities for carrying all passengers, goods, and 
 animals. There may be an exception in the case of specially 
 dangerous goods (see the Railways Clauses Consolidation Act, 1845, 
 s. 105), but these are not now in question. The duty thus imposed 
 on railway companies is inconsistent with their right to refuse to 
 carry any particular class of goods or animals which they have 
 facilities for carrying, and is inconsistent with their right to refuse 
 to carry such goods or animals except upon terms which are un- 
 reasonable. The machinery for enforcing this duty is provided by 
 the Regulation of Railways Act, 1873 (36 & 37 Yict. c. 48), to 
 which it is unnecessary to allude further on the present occasion. 
 The important point is that railway companies are bound to carry 
 goods and animals which they have facilities for carrying. It 
 would, however, be a mistake to suppose that railway companies 
 are bound to carry as common carriers everything which they can 
 be required to carry under the provisions of the Railway and Canal 
 Traffic Act, 1854. Railway companies are bound by that Act to 
 provide reasonable facilities for carrying passengers, but they are 
 not common carriers of passengers. So railway companies are 
 bound to provide reasonable facilities for carrying animals or 
 particular classes of goods, but it by no means follows that they 
 are liable as common carriers for what they are bound by statute 
 to carry. This distinction is important, and requires to be borne 
 in mind. Whether railway companies are common carriers of 
 particular classes of goods depends upon what they habitually do, 
 or profess to do, with respect to such goods. The Railway and 
 Canal Traffic Act, 1854, does not make railway companies liable 
 as common carriers in respect of goods which they do not profess 
 to carry as such. This was, in fact, decided in Oxlade v. Norf/i 
 Hasten) RaUicai/ Company (1 C. B. (N. S.) 454, at p. 498)."
 
 THE DELIVERY OF THE GOODS TO THE RAILWAY COMPANY. 121 
 
 " Generally railway companies, like other carriers, were common Chap. X. 
 
 carriers of goods "whicli they were hound hy statute to carry, or 
 
 which they professed to carry, or actually carried, for persons 
 generally, but not of goods which they did not profess to carry, 
 and were not in the habit of carrying, or only carried under 
 special chcumstances, or subject to express stipulations limiting 
 their liability in respect of them. In 1830 the Carriers' Act was 
 passed for the protection of common carriers against the loss of or 
 injury to parcels delivered to them, the value and contents of 
 which were not declared. In 18-15 the Railways Clauses Act 
 was passed. Sect. SQ of that Act is permissive, and railway com- 
 panies are not as such bound to be carriers ; and sect. 89 provides 
 that nothing in the Act contained is to make railway companies 
 liable further or in any other case than they would have been 
 liable as common carriers. So that up to 1854 railway companies, 
 unless compelled by some statute, could have refused to carry 
 dogs or any other traffic which they did not profess to carry, and 
 did not generally carry, as common carriers, and no action would 
 lie to compel them. 
 
 " Two important matters are aimed at and hit by the Railway 
 and Canal Traffic Act, 1854. It provides that railway companies 
 shall afford all reasonable facilities for receiving, forwarding, and 
 delivering traffic without delay and without partiality (' traffic ' 
 by the interpretation clause including animals), and gives a remedy, 
 if facilities are withheld, on application to the Court of Common 
 Pleas, a jurisdiction now transferred to the Railway Commis- 
 sioners. 
 
 " Since the passing of that Act railway companies cannot, in my 
 opinion, absolutely refuse to carry traffic which they have facilities 
 for carrying, even if they did not profess to carry and did not 
 generally carry such traffic, but would be compellable to carry it, 
 not as common carriers, but with the liabilities of ordinary bailees, 
 and subject to reasonable conditions limiting that liability." Po' 
 Lopes, L.J., ibidem.
 
 122 THE LAW OF CARRIERH. 
 
 ?fP-?- 148. The Raihvay and Canal Traffic Act, 1854, 
 
 s. 2, gives a customer a right to require any nmnber of 
 railway coraj^anies in Great Britain to combine to form 
 a continuous route by which his traffic may be sent at 
 a single booking and for a single payment. 
 
 That Act gives every individual customer the abso- 
 lute right to select what railway company he pleases to 
 deliver his traffic to, to deliver that traffic to that com- 
 pany, and to require, without any second booking or 
 any second payment, that the traffic shall be delivered 
 at the station to which he desires it to be sent ; pro- 
 vided alwa3^s that he tenders the traffic to the company 
 at a station where there are joroper facilities for re- 
 ceiving it, and that he names as the delivery station a 
 station where there are proper facilities for delivering 
 it, and that there is a continuous route connecting the 
 two stations. In such a case (apart from the particular 
 facility of a through rate) the sum which the customer 
 will have to pay for the transit of his traffic w411 be 
 ascertained by adding together the local rates of the 
 various companies over whose line it passes. 
 
 A railway company has the right (apart from the 
 question of through rates) to collect what traffic it can, 
 to carry it as far as it can by its own line, and there, 
 at the point which is most convenient to itself, to hand 
 it over to tlic company which is to forward it. [The 
 G. W. Rjf. Co. V. The Severn and Wye and Severn Bridge 
 Ry. Co. and The Midland By. Co., 5 liy. & Ca. Tr. Ca. 
 170.) 
 
 149. No person is entitled to carry, or to require a
 
 THE DELIVERY OF THE GOODS TO THE llAILWAY COMPANY. 123 
 
 railway company to carry, upon the raihvay, any ^^^^{49. 
 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 bookkeeper or other servant 
 of the company Avith whom the same are left, at the 
 time of so sending, he shall forfeit to the company 
 20/. for every such offence. It is lawful for the rail- 
 way 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. 
 (Railways Clauses Act, 1845 (8 Vict. c. 20), s. 105). 
 
 A guilty knowledge is necessaiy to support a conviction under 
 this section. {Ilcarnc v. GaHon, 28 L. J. M. C. 216.) 
 
 " We consider that a raihvay company should be bound to 
 carry, if required, 'dangerous goods' at a reasonable maximum 
 rate for their conveyance, and subject to such regulations for 
 safety as may be defined by theu- byelaws." (Report of Royal 
 Commission on Railways, 1867.) 
 
 150. Every railway company, and every canal 
 company, over whose railway or canal any gunpow^der 
 or other explosives arc carried, or intended to be 
 carried, shall, with the sanction of the Board of 
 Trade, make byelaws for regulating the conveyance, 
 loading and unloading of such gunpowder or other 
 explosives on the railway or canal of the company 
 making the byelaws. (88 Vict. c. 17, s. 35.)
 
 124 THE LAW OF CARRIERS. 
 
 Chap. X. The byelaws adopted by the railway companies are as follows : — 
 
 Art. 1 oU. 
 
 " Byelaws made with the sanction of the Board of Trade for 
 the regulation, of the loading, unloading, and conveyance 
 of explosives on the Railways of the 
 
 Railway Company (hereinafter called the 
 Company) made under and in pursuance of the Explosives 
 Act, 1875 (38 Vict, chap. 17), and every other power and 
 authority vested in the Company. 
 
 " (a.) The words and expressions used in the following byelaws 
 shall respectively have and include the several meanings assigned 
 to them or defined in ' The Explosives Act, 1875,' and in the 
 Order of Her Majesty in Council, dated the 5th of August, 1875, 
 made in pursuance of section 106 of the said Act, unless the 
 subject or context otherwise requires. 
 
 " (b.) The term ' explosive ' means and shall include and apply 
 to every article and substance mentioned as or defined to be an 
 explosive in and by the 3rd section of the said Act, or the said 
 Order in Council, or any Order in Council which may hereafter be 
 made in pursuance of the said Act. 
 
 " (c.) Where by any of these byelaws any time is prescribed or 
 allowed for giving any notice to the company, or for the doing of 
 any act by the company, such time shall be computed exclusively 
 of Sunday, Christmas Day, Oood Eriday, and any statutory Bank 
 Holiday. 
 
 "1, No carriage containing any explosive which the company 
 shall, by any notice or regulation for the time being in force, 
 notify that they will not receive, forward, or carry, shall be 
 delivered to the company for conveyance, or be brought, sent, or 
 forwarded to or up on any railway of the company. 
 
 " 2. No person shall send to the company any consignment of 
 explosive, unless he has given to the company forty-eight hom-s 
 previous notice in writing of his intention to send such consignment, 
 and stating the true name, description, and quantity of the 
 explosive proposed to be conveyed, and his own name and address,
 
 THE DELIVERY OF THE GOODS TO THE RAILWAY COMPANY. 125 
 
 and also the name and addi*ess of the proposed consignee, and has Chap. x. 
 
 had an intimation in writing from the company that they are '■ '- 
 
 prepared to receive such consignment. 
 
 " 3. Consignments of explosive shall be sent to the company's 
 forwarding station, and shall be received by their servants, only at 
 such times during the hours of daylight, that is to say, between 
 sunrise and sunset, as the company may appoint ; and every con- 
 signment and package containing any explosives proposed to be 
 conveyed on any railway of the company, shall immediately on the 
 arrival thereof at the company's station, wharf, or raihvaj^, be 
 delivered to and be received by the company's servants authorised 
 to receive dangerous goods, and by no other person whatsoever. 
 
 " 4. No explosive shall be loaded or unloaded on the company's 
 premises by the consignor or consignee thereof, or their servants, 
 except between sunrise and sunset. 
 
 " 5. Safety cartridges and percussion caps and safety-fuze (for 
 blasting), may be conveyed by passenger train, provided all due 
 precautions be taken by the sender for the prevention of accident 
 by fire or explosion ; also railway fog signals for the company's 
 own use ; but, except as aforesaid, no explosive whatever shall be 
 conveyed by passenger train. 
 
 " 6. Grunpowder, or any explosive made with gunpowder, 
 included in the 2nd division of the Gth (ammunition) class of 
 explosives, as classified by the said Order in Council of the 5th of 
 August, 1875, if packed in metallic cylinders of a pattern approved 
 by the company, and similar in construction and security to those 
 used by Government for the conveyance of small quantities of 
 gunpowder by railway, may be conveyed along with ordinary 
 goods traffic in a carriage not containing any article or substance 
 liable to cause or communicate fire or explosion. 
 
 " 7. No explosive of the oth (fulminate) class, nor any explosive 
 of the 6th (ammunition) class, containing its own means of ignition, 
 nor any explosive of the 7th (firework) class, shall be conveyed in 
 the same carriage with any explosive not of the class and division 
 to which it belongs, unless it be sufficiently separated therefrom to
 
 126 THE LA W OF CARRIERS. 
 
 Chap. X. prevent any fire or explosion whieli may take place in one such 
 '■ '- explosive being communicated to another. 
 
 " 8. There shall not be conveyed in the same carriage with any 
 explosive, any lucifer matches, fuzees, pipe-lights, acids, naphtha, 
 paraffin, petroleum, to which the Petroleum Act, 1871, or any Act 
 repealing or amending the same applies, or any other volatile 
 spirit, or substance liable to give off an inflammable vapour at a 
 temperature below 100° Fahrenheit, or liable to spontaneous 
 ignition, or to cause or communicate fire or exjplosion. 
 
 " 9. On each side of every carriage containing any explosive 
 there shall be affixed in conspicuous characters, by means of a 
 securely attached label or otherwise, the word ' explosive,' or the 
 name of the explosive with the word ' explosive,' except when 
 containing gunpowder or ammunition packed in metallic cylinders 
 as provided for in the 6th of these byelaws ; and every carriage 
 containing explosive shall be placed as far as practicable from the 
 engine attached to the train. 
 
 " 10. Not more than five carriages containing explosive shall be 
 loaded or unloaded at or on any railway station or wharf of the 
 company, or be attached to or conveyed by any one train at any 
 one time ; and the quantity of explosive to be contained or loaded 
 in any one such carriage at any one time shall not exceed 10,000 lbs. 
 in weight ; provided always that the quantity of explosive to be 
 contained or loaded in any one such carriage, shall not exceed one 
 ton in weight, unless the carriage shall be a covered van. 
 
 "11. If the explosive to be conveyed is not effectually protected 
 from accident by fire from without, by being placed in the interior 
 of a carriage which is enclosed on all sides with wood or metal, 
 then the explosive shall be completely covered with painted cloth, 
 tarpaulin, or other suitable material so as to effectually protect it 
 against communication of fire. 
 
 " 12. There shall not be any iron or steel in the interior of the 
 portion of the carriage where the explosive is deposited, unless the 
 same be covered either permanently or temporarily with leather, 
 wood, cloth, sheet-lead, or other suitable material.
 
 THE DELIVERY OF THE GOODS TO THE RAILWAY COMPANY. 127 
 
 " 13. Wlien the stowing of explosive in any carriage or the Chap. X. 
 
 Art T 'iO 
 
 loading or unloading of any explosive is undertaken by any person '- '- 
 
 other than the company, all due precautions shall be taken by such 
 person by careful stowing and loading and unloading and other- 
 wise to prevent and secure such explosive from being brought into 
 contact with or endangered by any other article or substance liable 
 to cause fire or explosion. 
 
 " 14. In loading or unloading any explosive, the casks and 
 packages containing the same shall, as far as practicable, be passed 
 from hand to hand and not rolled upon the ground, and in no case 
 shall any such casks or packages be rolled, unless hides, cloths, or 
 sheets have been previously laid down on the platform or ground 
 over which the same are to be rolled. Casks or packages contain- 
 ing explosive shall not be thrown or dropped down, but shall be 
 carefully deposited and stowed. 
 
 *' 15. No person while employed in loading, stowing in any 
 carriage, or unloading any explosive included in classes 1, 2, 3, 4, 
 or 5 of the classification of explosives as classified by the said 
 Order in Council, dated August 5th, 1875, shall wear boots or 
 shoes with steel or iron nails, steel or iron heels, or tips of any 
 kind, or have about his person any lucifer match, explosive, or 
 means of striking a light ; and all persons employed in the load- 
 ing, stowing, or unloading of any explosive shall, while such 
 loading, stowing, or unloading is going on, abstain from 
 smoking. 
 
 " 16. While the loading, unloading, or conveyance of explosive 
 is going on, all persons engaged in such loading, unloading, or 
 conveyance shall observe all due precautions for the prevention of 
 accidents by fire or explosion, and for preventing unautliorized 
 persons having access to the explosive so being loaded, unloaded, 
 or conveyed, and shall abstain from any act whatever which tends 
 to cause fire or explosion, and is not reasonably necessary for the 
 purpose of loading, unloading, or conveyance of such explosive, or 
 of any other article carried therewith, and for preventing any other 
 person from committing any such act ; and such other person who,
 
 J 28 THE LAW OF CARRIEBS. 
 
 Chap. X. after being warned, commits any sucli act shall be deemed to 
 _1j '- commit a breacli of these byelaws. 
 
 " 17. The loading or unloading of explosive into or out of any 
 carriage, when once begun, shall be proceeded with with all due 
 diligence until the same is completed. 
 
 "18, Packages containing any explosive must be removed by 
 the consignee from the station, wharf, or depot of the company to 
 which they have been conveyed, as soon as practicable and with 
 all due diligence after arrival ; and if not removed within twelve 
 hours after arrival the packages and contents may be forthwith 
 sold by the company, or otherwise disposed of as they think fit ; 
 and such packages shall in the meantime, and until such removal, 
 sale, or disposal, be completely covered over with painted cloth, 
 tarpaulin, or other suitable material. 
 
 " 19. The company may refuse to receive, forward, carry, or 
 allow to be brought or carried upon their railway, any carriage or 
 package which they suspect to be packed or sent, or to contain 
 any article or thing packed or sent in contravention of the said 
 Act, or of any of these byelaws or not in accordance therewith, 
 and in case any carriage or package which the company suspect to 
 be so packed or sent, or to contain any such article or thing as 
 aforesaid, shall be upon any railway of the company, the company 
 may open, or ref[uu'e such carriage or package to be opened, to 
 ascertain the fact. 
 
 "20. These byelaws are supplemental to the Explosives Act, 
 1875 ; and in the event of any breach (by any act or default) of 
 any of them, or any attempt to commit such breach, the following 
 penalties and consequences will be incurred and ensue ; that is to 
 
 say, 
 
 " (1) The explosive in respect of which, or being in the carriage, 
 or train or carriages in respect of which, the offence is 
 committed, may, unless the offence be committed by the 
 company, be forfeited to the company. 
 
 " (2) The person committing the offence shall be liable to a 
 penalty not exceeding 20/. for each offence, and to a
 
 THE BKLIVERY OF THE GOODS' TO THE n AIL]]' AY COMPA^sY. 
 
 129 
 
 further penalty of 10/. for eaoh day during wliich the Chap. X. 
 offence continues ; and tlio owner of the carriage, or _!j__l. 
 train of carriages in respect of which, or containing the 
 explosive in respect of which, the oifence is committed, 
 the person in charge of such carriage, and the owner of 
 such explosive, shall each be liable to a similar penalty, 
 if he was a party or contributed to such offence, or 
 neglected to supply the proper means, or to issue proper 
 orders for the observance, or has not used due diligence 
 to enforce the observance of these byelaws. 
 " 21. Copies of these byelaws shall be exhibited in a conspicuous 
 place at the stations on the company's railways, and may be 
 obtained on application to the secretary of the company. 
 
 "22. The above byelaws (with the exception of byelaw Xo. 5) 
 do not apply to small packages of percussion caps, safety cartridges, 
 or gunpowder, carried by passengers for private use and not for 
 sale, not exceeding in the Avhole for one passenger at any one time 
 5,000 percussion caps, and 1,000 safety cartridges in number, and 
 3 lbs. in weight of gunpowder, provided such gunpowder is con- 
 tained in a substantial ease, bag, canister, or other receptacle, made 
 and closed so as to prevent the gunpowder from escaping. 
 
 " Given under the common seal of the 
 
 this day of 188 . 
 Secrclar>/. {Seal of the Company.) 
 
 " The Board of Trade hereby signify their sanction of the above 
 Byelaws. 
 
 Signed by order of the Board of Trade this day 
 
 of 188 . 
 
 An A-ssisfaiii Secrefan/ to the Board of Trade. 
 
 Notice. 
 " The company hereby give notice that tliey are not common 
 carriers of explosives, and do not undertake the carriage of any 
 
 M. K
 
 130 THE LA W OF GABRIERS. 
 
 Chap. X. explosive except on special conditions signed by the sender 
 
 thereof, or by the person delivering the same to the company for 
 
 carriage." 
 
 151. A person wlio sends an article of a dangerous 
 nature to be carried by a railway comj^any is bound 
 to take reasonable care that its dangerous nature is 
 distinctly communicated to the raihvay company or 
 their servants. [Farrant v. Barnes^ 31 L. J. C. P. 
 187; 11 C. B. (N. S.) 553.) 
 
 In that case a person sent a carboy of nitric acid, merely inform- 
 ing the carrier that it was acid. (Tlie facts are fully stated anic, 
 Art. 31, p. 28.) 
 
 152. A railway company are l^ound to carry such 
 goods as arc tendered to them for the purpose of ])eing 
 carried, tooether with the proper charge for such 
 carriage ; and they cannot insist upon the sender 
 signing such conditions as are unreasonable. [Garton 
 V. Bristol cV Exdcr Ihj. Co., 30 L. J. Q. B. 273 ; and 
 ante, Arts. 127 and 147.) 
 
 As to what conditions are reasonable or not, see imnt. Chap. XI. 
 Art. 171. 
 
 153. A railway company may decline to carry 
 goods or fix a higher rate for the carriage if it be 
 sought to impose on them an extra liability. [Per 
 Lush, J., in Horn v. Midland Bij. Co., 42 L. J. C. P. 59; 
 7 C. P. 583 ; Biley v. Home, 5 Bing. 212.) 
 
 Martin, B., in Panliiigton v. South Wales 7?//. Co. (26 L. J. Ex. 
 10-5 ; 1 H. & N. 392), expresses a doubt whether when an animal 
 has a vice known to the 0"v\Tier who communicates it to the carrier, 
 the carrier is bound to carry the animal.
 
 THE DELIVEnY OF THE GOODS TO THE nATLWAY COMPANY. 181 
 
 154. -V railway company (subject to their obligation ^^^p- x. 
 
 under Art. 147) may refuse to receive and carry 
 
 articles of a perishable nature (such as fish) or of a 
 
 very delicate and fragile nature (such as statuary, 
 sculptured alabaster or marble), which they do not 
 commonly profess to carry, and Avhich may be easily 
 injured; except under a special contract exonerating 
 them from all responsibility for damage done to them 
 ill transitu not occasioned by the gross negligence or 
 default of themselves or their servants. {Bcal v. /S'. 
 Devon R>j. Co.^ 29 L. J. Ex. 441 ; Peek v. N. Staff. 
 Eij. Co., 32 L. J. Q. B. 241 ; ante, Chap. IV. Art. 25.) 
 
 Where goods are perishable, and the carrier has not the means 
 to forward them, he should peremptorily decline to receive them. 
 {Ticvnoij V. New Yort^ Cnifrat Ri/. Co., 76 N. Y. 305.) 
 
 155. A railway company may refuse to receive 
 goods where the packing is so defective that, owing to 
 the character of the goods and the nature of the 
 journey, their condition will entail upon the company 
 extra care and extra risks. (Munste)- v. S. E. R//. Co., 
 27 L. J. C. P. 308 ; 4 C. B. N. S. 676.) Goods ought 
 to be plainly and legibly marked by the consignor. 
 (8ee ante. Art. 32, p. 20.) 
 
 (See ante, Art. G2, p. 52, as to a carrier's liability for loss 
 occasioned by negligent packing; and Art. GJ-, as to his liability 
 for perishable commodities requiring great care ; and po^t, 
 Art. 180. 
 
 " There may, no doubt, be cases where articles of this descrip- 
 tion (bales of rugs and shawls) 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
 
 132 THE LAW OF CAnniEBS. 
 
 Chap.x. "be justified in rejecting every package whicli maybe imperfectly 
 
 packed," (Williams, J., in Jluiisto' v. S. E. By. Co. ; see also 
 
 Cox V. L. c^' N. W. Bi/. Co., 3 F. & F. 77 ; Iligginhotham v. Gi. N. 
 By. Co., 2 F. & F. 70G ; and Hart v. Baxendale, 16 L. T. N. S. 
 396 ; Union Exp. Co. v. Gmham, 26 Ohio St. 595.) 
 
 156. A railway company may (subject to their 
 obligation mider Art. 147, ante, p. 115) refuse to carry 
 if their trains be full. [McManiis v. Lane. 6f York. Bfj. 
 Co., 28 L. J. Ex. 353 ; 4 H. & N. 327.) 
 
 In tliat case Erie, J., said : " The carrier's duty to receive is 
 always limited to his convenience to carry." 
 
 See Art. 22, p. 21. 
 
 It lias not Ijeen decided under the Eailway and Canal Traffic 
 Act, 1854, how far a railway company are hound to provide extra 
 train accommodation if their ordinary trains he full. It seems 
 that a railway company should take precautions to prepare for 
 additional traffic which they might reasonably anticipate. ( Wal- 
 lace V. Gt. South. S^' West. By. Co., 17 W. E. 464; pod. 
 Art. 199.) 
 
 In that case the plaintiff, on the 10th of September, delivered 
 machinery to the railway company at D., addressed to and to be 
 delivered at the Agricultural Show yard at W., where an Agricul- 
 tural Show was then being held. In the ordinary course of 
 traffic, the machinery would have reached W. on the 11th of 
 September. The machinery \yas sent from D. in due com"se, but 
 "s^'lien it arrived at B., a station between D. and W., the rails were 
 in a slippery condition, and a great increase of traffic had taken 
 place. The railway company's servants, therefore, uncoupled the 
 trucks which contained the plaintiff's machinery, and substituted 
 trucks containing cattle which had been left behind by a previous 
 train. The machinery was thus delayed till a late train, and so 
 arrived too late for the show. The railway company had taken no 
 precaution to provide for the additional traffic, though they might
 
 THE DELIVERY OF THE GOODS TO THE BAT JAY AY COMPAXY. 133 
 
 have anticipated it. It was hold, upon these acts, by the Irish f^fP:?^- 
 
 Art. 15b. 
 
 Court of Queen's Bench, tliat there was a contract to deliver the 
 
 machinery within a reasonable time, and that through the default 
 of the railway company it had not been so delivered. Whiteside, 
 C. J., in delivering judgment, said : " The practical question 
 involved is of great interest and importance. It appears that when 
 the train, of which the waggons containing the machinery for the 
 Agricultural Show formed part, arrived at Ballyhale station, those 
 waggons were unhooked and were replaced by four waggons filled 
 with cattle, which an earlier train had been unable to take past 
 Ballyhale. The principle thus brought before us is one which 
 should not receive om' approval ; and I cannot lay it down as law 
 that the plaintiff, who merely gave his goods to the company to 
 carry, is to be a loser by such a change as was made at Ballyhale 
 by the servants of the company. If they give a preference to the 
 carriage of live-stock, and thereby delay the delivery of others' 
 goods, that is an arrangement which I shall not sanction. Carriers 
 are bound to deliver within reasonable time the things entrusted to 
 them, and this binds them to do no act of themselves which will 
 prevent them from using due diligence in delivering the goods. 
 Overwhelming necessity will alone excuse them, and of such over- 
 whelming necessity no evidence was produced." And Ceorge, J., 
 said : " The reasons offered for the delay are very loose. The state 
 of the rails might have excused the company if they merely left 
 behind at Ballyhale the waggons containing the machinery ; but as 
 they substituted for those waggons certain other waggons, I think 
 their conduct was not justifiable. Besides, they took no precautions 
 to prepare for the additional traffic which they might have anticipated 
 in consequence of there having been a cattle fair at Kilkenny." 
 
 It may bo remarked as to this decision, tliat in leaving the 
 machinery and taking on instead certain waggons of cattle, the 
 defendants observed the usual custom of railway companies, by 
 which, when unable to take both goods and cattle, they elect to 
 take the latter, leaving the former to be conveyed by some subse- 
 c^uent train. {Seopo-sf, Art. IDG.)
 
 134 THE LAW OF CARniERS. 
 
 h^t^ifi 157. A railway company can refuse to carry if the 
 
 — ' goods are tendered at an unreasonable time. (See 
 
 ante, Art. 26, p. 24 ; Garton v. Bristol ^* Fxeter Bf/. Co., 
 30 L. J. Q. B. 273 ; FicJrford v. Grand Junction Bfj. 
 Co., 12 M. & W. 766.) 
 
 " 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." [Per Williams, J., in Garton v. Bristol Sf Exctvr 
 By. Co., 28 L. J. C. P. 306 ; and Pidford v. Grand Junction 
 Bi/. Co., supra.) On the other hand, a railway company can 
 refuse to receive traffic an unreasonable time before they are ready 
 to despatch in ordinary course a train embracing that particular 
 class of traffic. (See Art. 26.) 
 
 "Where a train was advertised to leave at 11 o'clock, and in fact 
 left at 8 minutes past 11, and goods marked "perishable" arrived 
 at the station at 11, or one minute past the hour, and were booked 
 and on the platform when the train left, it was held that the 
 railway company were justified in forwarding them by the next 
 train. {Nicliotts v. N. E. By. Co., 59 L. T. 137.) 
 
 See ante, Art. 37, as to when a delivery to a carrier is complete, 
 although goods received after the hour appointed for receiving 
 them. 
 
 158. A railway company are boinid to receive 
 packed parcels [i.e. a package addressed to one con- 
 signee containing a quantity of parcels addressed to 
 different persons) ; and they are not justified in de- 
 manding any liigiier rate on account of the nature of 
 such a package. (Sutton v. Gt. W. B>j. Co., L. R. 
 4 H. L. 226 ; 38 L. J. Ex. (H. L.) 177, and cases 
 there cited.) Neither are a railway company justified 
 in opening a package with a view to ascertain whether
 
 THE DELIVERY OF THE GOODS TO THE RAILWAY COMPANY. 135 
 
 it consists of packed parcels. ( Crouch v. L. Sf N. W. ^l\^- 
 Rfj. Co., 2 Car. & K. 789, and Art. 33.) — — '" 
 
 See post, Chap. XV., ''Undue Preference." 
 
 159. The sender of the goods ought to inform the 
 railway company at the time of the delivery for con- 
 veyance, if special care is required in dealing with 
 the goods. [Baldwin v. Lon. Chat. tV Dov. lly. Co.., 9 
 Q. B. D. 582. See ante, Chap. Y. Arts. 63, 64.) 
 
 The facts of that case were as follows : On the lOtli of December, 
 1881, eighteen bales marked " Rags " were delivered by the 
 plaintiffs in London to the defendants for convej-ance to "W". 
 station in Kent, where, in the ordinary course, they should have 
 been delivered within twenty-four hours. By mistake they were 
 forwarded to another place and did not reach the W. station until 
 the fourth of January, 1882, when, finding them to have become 
 heated (through being packed in a damp state), and, therefore, 
 unfit for the manufacture of paper, the consignees rejected them ; 
 and ultimately the rags were found useless for any purpose, and 
 were destroyed. There being an admitted breach of duty on the 
 part of the defendants, and it being conceded that the rags would 
 have sustained no injury if they had been packed dry, the County 
 Court judge gave a verdict for the plaintiffs, but for nominal 
 damages only, on the ground that the loss was attributable to the 
 plaintiff's own act in packing the rags in a damp state, without 
 informing the defendants that special care was necessary. Upon a 
 motion to enter a verdict for the plaintiffs for the admitted value 
 of the goods, it was held that the ruling of the judge was correct. 
 
 In that case Mathew, J., said : " The company had a riglit to 
 assume that the bales contained dry rags, not damp. The plaintiffs 
 gave them no notice that they were in a condition to be destroyed 
 by a delay of three weeks. The true measure of damages in a case 
 of this kind is that which may fairly be said to have been in tlic
 
 13G THE LAW OF CARRIERiS. 
 
 Chap. X. contemplation of the parties at the time as the natural consequence 
 
 Art. 159. ^ ^ 
 
 o£ a breach of contract on the part of the defendants. The goods 
 
 in question were not delivered or tendered to the consignees until 
 fourteen days after the time at which they ought to have been 
 delivered. What were the natural or necessary damages resulting 
 from that delay ? If the rags had been dry when delivered to the 
 company, the damage would have been nil. The rags, however, 
 •were then damp, and hence their destruction. But the company 
 did not know that they were damp." 
 
 160. Goods delivered to a railway company for 
 conveyance ought to be fully and legibly addressed, 
 that the owner or consignee niay be easily known, 
 and if in consequence of omitting to do so, without 
 any fault on the part of the railway company, the 
 owner sustained a loss or any inconvenience, he must 
 bear the same. (^Caledonian R/j. Co. v. Hunter cV Co. 
 20 Sess. Ca. (2nd Ser.) 1097; Wilson c^ Son v. ScoU, 
 Hume, 302 ; Weir v. Howie, Hume, 304 ; Stewart ^' Co. 
 V. Gordon, 14 Sess. Ca. (2nd Ser.) 434 ; TJic Huntress, 
 Davies, 83 ; Bradlejj v. Dunipace, 1 H. & C 521 ; 7 
 H. & N. 200.) 
 
 In the first of these cases, goods delivered to a railway agent in 
 Glasgow, addressed to " W. Eae, Sudbury," were sent along 
 several lines of railway to Sudbury in Derbyshire, not to Sudbury 
 in Suffolk, for which they were intended. All correspondence with 
 a view to discovering the proper destination was, according to usual 
 practice, sent by goods trains instead of by post, in consequence of 
 which the goods were not delivered to the consignee till thirty-six days 
 after they had been despatched, and he then refused them. It was 
 held that the originating cause of the goods being mis-sent being 
 the imperfect address, the company were not liable for the conse-
 
 The delivery of the goods to the railway company. 137 
 
 quences of the delaj^, and this though their own conduct in the ^^^P.?^- 
 
 matter was not free from blame. " There is no douht," said the 
 
 Lord Justice Clerk Hope, " that in order to enforce that liability 
 which ought to exist in the case of railway carriers as well as 
 ordinary carriers, we ought to require a full, distinct, and ample 
 address. If the address be such, and anything afterwards arises 
 from the fault or negligence of the railway company, whether from 
 misreading or from having an imperfect notion of the destination 
 of the goods where there is a full address, or by sending them by a 
 wrong line, or b}' negligence on the part of those for whom the 
 railway company is responsible, from whatever cause, the company 
 is liable for delaj^ or neglect when the address of the goods is full 
 and distinct. If the address be not ample, full, and distinct, the 
 delay or interruption which takes place arises from fault on the part 
 of the sender, who is the means of putting the whole thing wrong. 
 With him the fault begins, and he is the cause of the goods not 
 going to their proper destination." 
 
 See jjost, Chap. XII. Art. 207, as to the duty of a railway 
 company when they are unable to deliver goods owing to an 
 imperfect address. 
 
 161. If the package delivered to the railway com- 
 pany does not contain goods wliich arc within the 
 provisions of the Carriers Act {ante, Chap. VI. p. 50) 
 and the Railway and Canal Traffic Act, 1854 {post, 
 Chap. XI. Art. 168), there is no occasion to inform 
 tliem, nor have tliey any absolute right in all cases to 
 insist on being informed as to their contents or their 
 value before they will acce^ot it. ( Crouch v. L. cV N. 
 W. Rfj. Co., 23 L. J. C. P. 73. See ante, Art. 30, p. 26.) 
 
 The right of a railway company to have parcels opened only 
 extends to those suspected to contain dangerous articles {ante, 
 Art. 149, p. 123). 
 
 It has been held in America that the duty of making any
 
 138 THE LAW OF CARRIERS. 
 
 Chap. X. inquiry as to the cliaracter and value of the contents of a packasre 
 
 Art. 161, . ^ _ i o 
 
 intrusted to a carrier is upon the carrier. The consignor is not 
 
 bound to disclose, unless he is asked. {Merchants' Despatch Co. v. 
 BoUes, 80 111. 473.) 
 
 163. A railway compaii}^ are entitled to be paid the 
 aiiiomit chargeable for the carriage of the goods l^efore 
 they undertake the responsibility of having the goods 
 in their possession. (Pickford y. Grand Junction Ry. 
 Co., 10 M. & W. 399 ; ante, Art. 27, p. 24.) 
 
 163. As to what is a sufficient delivery of goods to 
 a railway company to make them responsible as car- 
 riers, see ante, Chap. IV. Arts. 33 — 37. 
 
 The delivery must be in conformity with the known coui'se of 
 the railway company's business as carriers, or it will not bind 
 them. {SUm v. Gt. N. R;/. Co., 14 C. B. 647.) 
 
 In Ei-enhed v. L. ^' N. W. Ry. Co. (47 L. J. Q. B. D. 228), 
 Brett, L. J., said, " The company undertake not merely to carry 
 goods, but they must receive and deliver them. They may or 
 may not receive and deliver at the edge of their rails ; but be that 
 as it may, it seems to me that from the time they receive them 
 they are carriers of them. Under certain circumstances they do 
 not receive them at the edge of their rails, but before. Sometimes 
 they collect at receiving houses, or sometimes, as at Burton, at the 
 houses of the consignors ; but, as has been held, from the moment 
 of their receipt of them they are liable as common earners, and 
 that only, as it seems to me, because they are conveyers of the 
 goods. If that be not so, in collecting the goods the company 
 would be carrying on a business they are not authorized to carry 
 on ; but I do not doubt they are authorized, even if not sjiecially 
 empowered by their Acts to do so, as such transaction is a neces- 
 sary part of their business."
 
 THE DELIVERY OF THE aOODS TO THE RAILWAY COMPANY. 139 
 
 To render the company liable there must be an actual delivery Chap. x. 
 
 to them or some servant, agent or other person authorized or placed 
 
 by them in a position to hold himself out to the public as autho- 
 rized to act on their behalf for this purpose, and the goods must 
 be placed under their control. {Bcrghcim v. Gt. East. Ey. Co., 
 3 C. P. D. 22; 47 L. J. C. P. 318; Story on Bailm., ante, 
 Arts. 35, 37.) 
 
 If an agent has general authority to receive goods and to con- 
 tract for their carriage, this general authority cannot be restricted 
 by special instructions of which the customer is ignorant. 
 
 The acquiescence of the company is necessary to a delivery. 
 See (oite, Art. 34. 
 
 As to a railway company's liability for goods received into their 
 warehouse to be forwarded according to the futm-e orders of the 
 owners, or for the accommodation of the company and theu' cus- 
 tomers, see ante, Chap. IV. Arts. 41 — 43. 
 
 It has recently been decided in America, that one who delivers 
 goods to a carrier, is properly deemed by him their owner, in the 
 absence of knowledge otherwise {Sanson v. Jacob, 12 Moo. App. 
 125) ; but that where the carrier receives the goods from one 
 known by him to be an agent, and not the owner of the goods, he 
 must make inquiry as to the agent's authority to make a contract 
 for carriage, subjecting the goods to charges for dead freight 
 and demurrage. {IlaijCH v. CampheU, 63 Cal. 143.) 
 
 A., by parol, made arrangements with a railway company to 
 convey cattle for him to K. station ; he at the same time, without 
 noticing its contents, signed a consignment note, by which the 
 cattle were directed to be taken to E., an intermediate station on 
 the line to K., and it was held that parol evidence was admissible 
 to show that the railway company had agreed to carry on the 
 cattle to K., as it did not contradict, but only supplemented the 
 written contract. {Maljms v. L. (^' S. IF. Bi/. Co., L E. 1 C. P. 
 336; 35 L.J. C. P. 166.) 
 
 164. Ill cases nut within sect. 7 of the Railway and
 
 140 THE LAW OF CARRIERS. 
 
 Chap. X. Canal Traffic Act, 1854 [post^ Art. 168), a railway com- 
 
 Art. 164. 1 • T 1 
 
 P^i"^7 may maJ^e a special contract, as at common law. 
 
 So that where the railway company delivers a ticket 
 or other notice to the person from whom they receive 
 the goods, specifying the terms on which they agree 
 to carry, and the customer assents (or does not dissent), 
 the terms of the notice will establish a special agree- 
 ment, and will exclude the common law contract so 
 far as it is varied by tliose terms. {Gt. Northern By. 
 Co. V. Morville, 21 L. J. Q. B. 319 ; Zunz v. S. E. Bij. 
 Co., L. R. 4 Q. B. 539.) 
 
 If the customer in such a case declines the terms, 
 and wishes to fix the railway company with the common 
 law liability, he must tender or offer a reasonable 
 compensation, and sue for the refusal to receive the 
 goods. {^Carr v. Lane. ^^ York. Ry. Co., 21 L. J. Ex. 
 261 ; Carton v. Bridol cV Exeter Ry. Co., 30 L. J. 
 Q. B. 273. See ante, Arts. 27, 28, p. 24.) 
 
 " In the case of carriers by land an absolute failure to carry 
 goods, in the sense of never commencing the carriage, seldom 
 occurs. In the well-known instance of the war waged by the rail- 
 way companies against carrying packed parcels, it was intimated 
 by Martin, B., that very heavy damages might be given, if it were 
 established that the defendants designedly refused to take parcels 
 which they were bound by law to take, for the purpose of getting 
 a monopoly in their hands, and destroying the plaintiff's trade." 
 (Mayne on Damages, 4th ed. p. 282 ; Crouch v. Gt. N. By. Co., 
 11 Ex. 742; 25 L. J. Ex. 137.) 
 
 A railway company contracted with the plaintiff to provide, 
 within a reasonable time, a particular description of large waggons, 
 at a specified rate of freight per waggon, for the carriage of a 
 quantity of hay from a station on their line to Gr., a town about
 
 THE DFJJVETIY OF THE C'OODH TO TEE EAILWAY COMPAXY. 141 
 
 twenty-five miles distance, where the hay was intended for sale. Chap. x. 
 
 Five tons of hay were delivered to the railway company, but '- 1 
 
 carried by them in smaller waggons, for which the}- charged and 
 were paid the same rate per waggon, thus increasing the cost of 
 carriage per ton. The company not having provided waggons of 
 the description agreed for, the plaintiff did not deliver to them for 
 conveyance the rest of the hay which he kept for some time, and, 
 after notice to the company, sold and disposed of under cost price. 
 It was held that if the hay had been delivered to the railway 
 company for conveyance, or had been otherwise conveyed in a 
 reasonable manner to its destination, the proper measure of da- 
 mages would have been the extra cost of conversance, and that the 
 only damages which the plaintiff could recover was the extra cost 
 of conveyance, in respect of the five tons actually delivered and 
 conveyed, arising upon the freight being calculated upon a waggon 
 of less carrying power. {Irv'uie v. Midlaml Gt. W. of Ireland Ry. 
 Co., 6 L. E. Ir. 6b.) 
 
 " Where there is a contract to supply a thing which is not 
 supplied, the damages are the difference between that which ouglit 
 to have been supplied and that which you have to pay for, if it be 
 equally good ; or if the thing is not obtainable, the damages would 
 be the difference between the thing which you ought to have had, 
 and the best substitute you can get upon the occasion for the pur- 
 pose." (Blackburn, J., in Ilobhs v. L. ^ S. IF. By. Co., L. E. 10 
 a B. 120.) 
 
 A railway company having failed to provide horse-boxes, pur- 
 suant to contract, for the conveyance of horses for sale by auction 
 in Dublin on the day but one following, the owner Avas compelled to 
 send them by road, a distance of twenty-fom- miles, in order that they 
 might arrive in due time for the sale and for previous inspection 
 by purchasers. The horses, which were valuable hunters, were in 
 soft condition at the time. They were deteriorated in appearance 
 by the fatigue of the road journey ; one of them was lamed ; and 
 such as were sold realized prices below what would have been 
 otherwise obtained, the others being left on the owner's hands.
 
 142 THE LA W OF CAHBlEnS. 
 
 Chap. X, It appeared tliat if they had been in hardfed condition tliey 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. It was held, 
 that the company were not liable in damages for all 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 fit to make the journey, would have suffered thereby, and the 
 time and labour expended on the road. {WaUier v. Midland Of. 
 IF. of Ireland By. Co., 4 L. R. Ir. 37G. And see Pick ford v. Gd. 
 June. Rii. Co., S M. & W. 372.) 
 
 As to the measure of damages for delay in delivering goods, 
 and for the loss of the goods by the carrier, see po^i, Chap. XII. 
 Arts. 199, 200. 
 
 165. A special contract to cany goods, though not 
 signed by the consignor, is binding upon a railway 
 company, as it is not within sect. 7 of the Railway 
 and Canal Traffic Act, 1854 {pod^ Art. 168), which 
 provides that no special contract shall be binding upon 
 the party unless signed by him or the person deliver- 
 ing the goods to be carried. {Baxcndalc v. Gt. Eastern 
 Ihf. Co., L. E. 4 Q. B. 244 ; 38 L. J. Q. B. 137.) 
 
 166. A railway company are not bound to provide 
 booking offices for traffic at places off their railway, 
 nor to arrange for the conveyance by road of goods 
 l)etween such places to the nearest station on their 
 railway. [Duhlin Sf Mcath Ihj. Co. v. Midland Gt. 
 Western of Ireland By. Co., 3 Ry. & Ca. Tr. Ca. 379.)
 
 ( u- 
 
 CHAPTER XI. 
 
 THE OBLIGATIONS OF A RAILWAY COMPANY DURING THE 
 TRANSIT OF THE GOODS (ci). 
 
 I. — By Statute. Articles. 
 
 1. U/ulet' Carriers Act, 1830 167 
 
 2. Special Contract under sect. 7 of Railivay and Canal 
 
 Trafic Act, \85i ■. " 168—170 
 
 3. Reasonable and unreasonable Conditions 171 
 
 4. Alternative Rates and Conditions 171 
 
 5. Conveyance of Goods partly by Railway and partly by Sea 
 
 under sects. 14 and IQ o/ Reytdation of Raihcai/s Act, 
 
 1868, and sect. 12 of Reytdation of Railways Act, 'l871 . . 172, 173 
 
 II. — Genee.illy. 
 
 1. Insurers of the Goods carried 174 — 176 
 
 2. Damaye from accidental Fire 177 
 
 3. Damaye from defective Truck 178 
 
 4. Defective Stations and Platforms 179 
 
 o. Goods imperfectly packed 180 
 
 6. Concealment of lvalue by Consiynor , 181 
 
 7. Wayyons of Private Traders 182 
 
 8. Carriaye of " Empties " 183 
 
 9. Goods injured by excepted Risks 184 
 
 10. Goods carried at " Owmer^s Risk " 18o 
 
 11. The authorized Servants of a Railway Company 186 
 
 12. Bound by the Contract of their Ayent 187, 188 
 
 13. When Company estopped from set tiny up the illryalify (f 
 
 their acts 189 
 
 14. Construction of the Special Act of the Company 190 
 
 15. Liability wJien carryiny to a Place loithout the Realm . . 191 
 
 10. Liability for Loss, Sfc. beyond their own Line 192 
 
 17. Carryiny Company liable for damage to Goods carried . . 193 
 
 (ff) In connection with this chapter reference should be made to 
 Chapter V. {ante, p. 40) on the " Obligations of a common carrier 
 during the ti-ansit of the goods," as being applicable to some extent to 
 the carriage of goods by railway, and to Chapter VI. {ante, p. 56) on 
 the " Limitation of the responsibility of a common carrier of goods l)y 
 the Carriers Act. 1830."
 
 144 THE LA ]V OF CAUrJEUS. 
 
 Chap. XI. I. — By Statute. 
 
 Art. 167. 
 
 ■ 167. A railway company when carrying goods by 
 
 land are entitled to the protection of the Carriers Act, 
 1830. (Railway Clauses Act, 1845 (8 Vict. c. 20, s. 89).) 
 Sect. 89 of the Railway Clauses Consolidation Act, 1845, enacts 
 as follows: — " Nothing in this or the special Act contained shall 
 extend to charge or make liable the company, further or in any 
 other case than where according to the laws of the realm, stage 
 coach proprietors and common carriers would be liable, nor shall 
 extend in any degree to deprive the company of any protection or 
 privilege which common carriers or stage coach proprietors may be 
 entitled to ; but, on the contrary, the company shall at all times be 
 entitled to the benefit o£ every such protection or privilege." 
 
 This section cannot be taken to affect the general jm'isdiction of 
 the Railway Commissioners (see ante, Axi. 147), nor the particular 
 obligations imposed by the special Act of the company. 
 
 The common law obligations of railway companies as carriers 
 appear to be co-extensive with those of carriers not owning the 
 road. 
 
 When the contract for the conveyance of the goods is for a 
 transit which is to be partly by land and partly by water, the 
 benefit of the Carriers Act only avails the railway company during 
 the land transit, (See ante, Art. 83, p. 72.) 
 
 The Carriers Act is set out and fully dealt with in Chai^. VI., 
 ante, p. 56. 
 
 Any statutory exemption from liability must be pleaded specially. 
 (Jud. Act Rules, 1883, Ord. XIX. r. 15.) 
 
 168. Every railway company is liable for loss of or 
 injury done to any articles, goods, or things, in the 
 receiving, forwarding, or delivering thereof, occasioned 
 by the neglect or default of the company or its 
 servants, notwithstanding any notice, condition, or 
 declaration made and given by such company contrary 
 thereto, or in anywise limiting such liability ; and
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 145 
 
 Art. 168. 
 
 every such notice, condition, or declaration is null and chap.xi. 
 void. 
 
 A railway company may make a special contract 
 with the consignor respecting the receiving, forward- 
 ing, and delivering of goods, provided that : — 
 
 (1) It is in writing. 
 
 (2) It is signed by the consignor, or the person 
 
 delivering the goods for carriage. 
 (-3) Its conditions are just and reasonable. (The 
 Railway and Canal Traffic Act, 1854 (17 & 
 18 Vict. c. 31, s. 7).) 
 
 Nothing in the above Act is to alter or affect the 
 rights and liabilities of the railway company under 
 the Carriers Act, 1830, with respect to the articles 
 mentioned in that Act. 
 
 A railway company cannot exempt themselves from liability on 
 the ground that the consignor, &c. lias not signed t]ie special con- 
 tract, as the proviso of sect. 7 only applies where the company are 
 seeking to exempt themselves from liability by reason of there 
 being a special contract. {Baxendale v. Gt. Eastern JR//. Co., L. E. 
 4 Q. B. 244 ; 38 L. J. Q. B. 137.) 
 
 The provisions of sect. 7 apply not only to the risks of carriage 
 and conveyance, but also to those which attend the receiving and 
 delivery. {Hodgman v. West Midland Ry. Co., 33 L. J. Q. B. 
 233.) The section does not apply to goods received not in the 
 capacity of carriers, as luggage left in the cloak-room after the 
 completion of the journey. {Van Toll v. S. E. By. Co., 31 L. J. 
 C. P. 241 ; and see Moore v. Gt. N. By. Co., post, p. 156.) 
 
 A condition on a passenger's ticket as to liability for luggage 
 carried for a passenger without extra charge is within this section. 
 {Cohen V. 8. E. By. Co., 2 Ex. D. 253 ; 46 L. J. Ex. D. 416 ; 
 and see post, Chap, XVII.) 
 
 M. T
 
 146 THE LAW OF CARRIERS. 
 
 Chap. XI. The law as to tLe limitation of the responsibility of railway 
 
 Art. Ibo. 
 
 companies by special contract or notice before the passing of the 
 
 Eailway and Canal Traffic Act, 1854, is referred to in Chapter YI,, 
 ante, p. 73, 
 
 169. Since the passing of the Railway and Canal 
 Trafhc Act, 1854, no general notice given by a rail- 
 way company is valid in law for the purpose of limit- 
 ing the common law liability of the company as 
 carriers ; but such common law liability may be 
 limited by such conditions as the Court or judge shall 
 determine to be just and reasonable; and such condi- 
 tions must be embodied in a special contract in writing, 
 to be signed by the owner or person delivering the goods. 
 
 It is the duty of a railway company setting up a 
 condition in qualification and restriction of their 
 common law liability to make out that the condition 
 is just and reasonable. [Peek v. N. Staff. Ry. Co., 10 
 H. L. Cas. 473 ; 32 L. J. Q. B. (H. L.) 241.) 
 
 The question of reasonableness is generally a mixed question of 
 law and fact. {Dickson v. Gt. NortJiern Ry. Co., posf, p. 162.) 
 
 In that case it was held that a contract for the carriage of goods 
 as " not insured " was not a sufficient reference to incorj)orate the 
 conditions of the company as to liability for not insured goods, one 
 of which was that the company was not to be liable for any loss or 
 injury of such goods. 
 
 Lord Cranworth said that to constitute a written contract in the 
 sense of the Act there must be a written document signed by the 
 sender of the goods, either in itself stating the terms on which it is 
 agreed that the goods shall be sent, or making reference to some 
 other document in which these terms are embodied. 
 
 Lord Watson, in delivering judgment in the case of Manchester, 
 8fc. By. Co. V. Brown {post, Art. 171), says, " The case of Peek v.
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. I47 
 
 North Staff. Ry. Co. authoritatively decides, upon the statute, these Chap. xi. 
 
 Art IGQ 
 
 three points — in the first place, that a condition of this kind must ' 
 be in writing in order to bind the trader ; in the second place, that 
 it must be proved to the satisfaction of the Court to be a reasonable 
 condition ; and in the third place, that the onus of showing that it is 
 a reasonable condition rests upon the railway company who allege it. 
 " But the question as to what constitutes a reasonable condition is 
 not a question which judges can decide, as against their successors 
 by anticipation ; it is a question of fact in each case, depending 
 upon the discretion of the judge who is dealing with it, and, 
 according to my view, not of law, and must be judged of according 
 to the circumstances in each case." 
 
 And Bramwell, B., in Gregory v. West Midland Ry. Co. (33 
 L. J. Ex. 155), said, *' It is difficult to see how there can be any 
 abstract reasonableness in any condition for carrying goods or 
 cattle all over the world ; whether a condition be reasonable or not 
 cannot be decided as a pure matter of law. It is a question which 
 should be decided by the judge at the trial." And see judgment 
 of the Lord President Inglis in the Court of Session in Rain v. 
 Glasgow Sf S. W. Ry. Co., 7 Sess. Ca. (3rd Ser.) 439. 
 
 *' Inasmuch as the Act declares that prima facie all such con- 
 ditions are to be null and void, it seems to me that it lies on the 
 company to show that any condition upon which they may rely is 
 just and reasonable. If the case is tried before a judge and jury, 
 I think it is for the judge to say whether the condition is reason- 
 able, although, I think, if he needs any assistance with regard to 
 facts material for the determination of that question, he may ask 
 the jury to find such facts. But where there are no special facts 
 in question, it is for the judge to say upon the construction of the 
 condition, bringing to bear his knowledge of the world, whether it 
 is just and reasonable." {Per Lord Esher in Dickson v. Gf. 
 Northern Ry. Co., 18 Q. B. D. 176 ; 56 L. J. Q. B. 111.) 
 
 Lord Bramwell, in Mane. Shrff'. 8f Line. Ry. Co. v. Rrown (post^ 
 Art. 171), said: "The case of Peek v. North Staff. Ry. Co. was 
 decided twenty years ago. At the time it was decided, and from 
 
 ], 2
 
 148 THE LAW OF CARRIERS. 
 
 Chap. XI. tlience continuously until now, I have always tliouo:lit it was 
 
 Art. 169. . '^ . ' . -^ ° . 
 wrongly decided, and this case confirms me in that opinion ; and 
 
 although it has been in existence for twenty years, and has been 
 
 acted upon in Courts of law, if it were within my competency to 
 
 overrule it I would do so, because it is impossible to say that 
 
 people have regulated their contracts in reference to it : they have 
 
 done nothing of the sort. What they have done is this : they have 
 
 entered into their contracts without reference to it, and when it 
 
 has become convenient they have broken those contracts ; and 
 
 having had the benefit of them, they have turned round and have 
 
 sought to avoid them." 
 
 170. If the sender of goods fills iij) and signs a 
 receiving note on which conditions of carriage are 
 j^rinted, the presumption is that he understood and 
 assented to these conditions. [Leioh v. G. W. Ry. Co., 
 29 L. J. Ex. 425 ; jier Cockburn, C. J., in Zunz v. S. E. 
 Rfj. Co., L. R. 4 Q. B. 544 ; 38 L. J. Q. B. 209.) 
 
 But where it was proved that the plaintiff, when asked by the 
 company's clerk, at the time of delivering the goods, to sign a 
 paper, refused to do so on the ground that he could not see to read 
 it, and that the clerk said it was of no consequence, and that the 
 signature was mere matter of form, and that the plaintiff, relying 
 on that assurance, signed the paper, it was held that the jury were 
 warranted in finding that the goods were not received subject to 
 the special contract. {Simons v. G. W. Bi/. Co., 2 C. B. (N. S.) 
 620.) Where goods were delivered to a railway company for 
 carriage, along with a forwarding note, on the back of which 
 certain conditions were printed, and which forwarding note was a 
 printed document supplied by the railway company containing 
 certain blanks, it was held that the fact of one of these blanks 
 being filled up with the name of the sender, as being the party by 
 whom the carriage was payable, was not evidence, such as the Act 
 requires, that he had agreed to the conditions on the back of the note.
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 149 
 
 {Scottish Central R>j. Co. v. Ferguson, 2 Sess. Ca. (3rd Ser.) 781.) So, Chap. xi. 
 
 where the railway company granted a receipt for the goods on the 
 
 back of which certain conditions of carriage were printed, it was 
 held that the sender's signature attached to an indorsement on the 
 hack of the receipt, "Deliver the within to Messrs. F., E. & Co.," 
 must have been presumed to have been written for the purpose of 
 sending the receipt to the consignees, and could not be taken, at 
 least without proof to that effect, to have been intended to authenti- 
 cate the printed conditions as in a question between the sender and 
 the railway company. [Ibidem ; and see Peek v. N'orth Staff. Ei/. 
 Co., ante, Art. 169.) 
 
 The signature of a railway agent, employed by the sender to 
 deliver, and by the company to receive the goods, has been held to 
 be a signature within the meaning of the Act. [Aldridge v. G. 
 W. By. Co., 33 L. J. C. P. 161.) 
 
 And BQQpost, Chap. XYII., Art. 314, and Chap. XYIII. 
 
 171. A condition is reasonable which reduces a 
 railway company's liability to a minimimi if it is 
 coupled with compensating advantages to the customer 
 (such as cheapness of carriage), and the latter has the 
 alternative of getting rid of the condition by paying a 
 reasonably higher rate. 
 
 The fact that there are ordinary rates in prac- 
 tical operation on a railway for the carriage of 
 goods with ordinary liability is very strong evidence 
 that an agreement between the railway company and 
 a customer for the carriage of goods at another rate 
 is reasonable. (3Ian., Shef. and Zinc. llij. Co. v. 
 Broion, 8 App. Cas. 703 ; 53 L. J. Q. B. (II. L.) 124.) 
 
 If a railway company charge two rates for the con- 
 veyance of certain articles — one the ordinary parlia- 
 mentary rate, when they take the ordinary liability of
 
 150 THE LAW OF CARRIERS. 
 
 ^^^^•,?^ the carrier, and the other a reduced rate, in which case 
 
 Art. 171. ' ' 
 
 they make it a condition of carriage that the sender 
 
 relieves them of all liability for loss or damage, — 
 except upon proof that such loss or damage arose from 
 wilful misconduct on the part of the company's ser- 
 vants ; the condition relieving the comj)any when goods 
 are carried at the lower rate is " just and reasonable," 
 within sect. 7 of the Railway and Canal Traffic Act, 
 1854. {Leivis v. G. W. Ry. Co., 3 Q. B. D. (C. A.) 195 ; 
 47 L. J. Q. B. (C. A.) 131 ; RoUnson v. G. W. Rfj. 
 Co., 35 L. J. C. P. 123.) 
 
 Sect. 7 of the Railway and Canal Traffic Act, 1854, 
 gives no power to a railway com2Dany to exceed the 
 maximum rate fixed by their special Act for the con- 
 veyance of goods, and the higher '' alternative rate" 
 must be within it. [Per Cockburn, C. J., in Peek v. 
 N. Staff. Ry. Co., ante. Art. 169.) 
 
 "We have seen that (Art. 168) a railway company may, by a 
 special contract signed as required by the Railway and Canal 
 Traffic Act, 1854, s. 7, Hmit their liability for their own neglect or 
 default, and this hmitation is subject to but one restriction — that it 
 be adjudged to be just and reasonable. The principle deducible 
 from the authorities is, that a contract of this nature, prima facie 
 unjust and unreasonable, becomes just and reasonable if an alter- 
 native is left to the party forwarding or delivering the goods to 
 enter into a contract which is just and reasonable. 
 
 The following are the principal decisions on alternative rates : — 
 1. In Brouii's case {supra), a fish merchant delivered fish to a rail- 
 way company to carry upon a signed contract relieving the company 
 as to all fish delivered by him " from all liability for loss or damage 
 by delay in transit or from whatever other cause arising," in con- 
 sideration of the rates being one-fifth lower than where no such
 
 THE TRANSMIT OF THE GOODS ON THE RAILWAY. 151 
 
 undertaking was granted ; the contract to endure for five years. Chap. XI. 
 
 The servants of the company accepted the fish, although from -^ '- 
 
 pressure of business they could not carry it in time for the intended 
 market, and the fish lost the market ; and it was held that upon 
 the facts the merchant had a bond fide option to send fish at a rea- 
 sonable rate with liability on the company as common carriers, or 
 at the lower rate upon the terms of the contract ; that the contract 
 was in point of fact just and reasonable within sect. 7 of the Eailway 
 and Canal Traffic Act, 1854, and covered the delay ; and that the 
 company were not liable for the loss. 
 
 Lord Blackburn, in delivering judgment, said, " The spirit and 
 object of the enactment in the Railway and Canal Traffic Act are 
 very well expressed in Beal v. >S'. Devon Ry. Co. (3 H. & C. 337)." 
 " The real question," says Mr. Justice Crompton, in delivering the 
 judgment of the Exchequer Chamber, " is whether the individual 
 and the public are sufficiently protected from being unjustly dealt 
 with by the parties having the monopoly. 
 
 " Now, I think it will be seen that in the present case there was 
 really a reasonable means of the goods being carried, and that the 
 company offered to fulfil their duty as common carriers in saying, 
 ' We will carry all goods that are brought to us, fish and other- 
 wise, on being paid a reasonable remuneration — we will carry them 
 according to the custom of the English realm, and will safely 
 deliver the goods, unless certain excepted things prevent their 
 being so delivered.' There is superadded that which is not part 
 of the custom of the realm, also an obligation to use reasonable 
 care and reasonable skill to deliver the goods within a reasonable 
 time. That is superadded, I think, by the law to the duty which 
 by the custom of the realm is cast upon a carrier ; there is that 
 duty to deliver with reasonable despatch and without unreasonable 
 delay." 
 
 2. Inie?m V. G. W.Rij. Co. (r/;/i'(',p.l50),the plaintiff, under a con- 
 tract in writing signed by his agent, delivered to the defendants cer- 
 tain cheeses to be carried from L. to S. " at owner's risk." As the 
 plaintiff knew, the defendants had two rates of carriage : a higher
 
 152 TIIE LA W OF CARRIERS. 
 
 Chap XT. rate -wlien tliey took the ordinary liability of carriers, and a lower 
 ' when they were relieved of all liability except that arising from 
 
 the wilful misconduct of their servants. In using the words 
 " owner's risk," the plaintiff intended that the cheeses should be 
 carried at the lower rate, and subject to the conditions restricting 
 the defendants' liability. The defendants' servants packed the 
 cheeses in such a manner that during their transit upon the defen- 
 dants' railway they were damaged, but the defendants' servants 
 did not know that damage would result from the mode in which 
 the cheeses were packed. It was held that, as the defendants 
 carried at alternative rates, the condition excepting them from 
 liability when carrying at the lower rate was just and reasonable 
 within the meaning of sect. 7 of the Railway and Canal Traffic 
 Act, 1854, and that the injury to the cheeses had not arisen from 
 .the wilful misconduct of their servants. 
 
 3. A railway company had two rates for the carriage of goods — 
 one, the ordinary or higher rate, when it undertook the ordinary 
 liability of the carrier ; the other a reduced rate, when the sender 
 relieved the company of all liability for loss, or damage or delay, 
 except upon proof that such loss, or damage or delay, arose from 
 wilful misconduct on the part of its servants. It was held that 
 the higher rate not being shown to be prohibitive or excessive, the 
 alternative afforded to the public was just and reasonable ; and 
 therefore that a contract founded upon the latter branch of it was 
 valid. {Gallagher v. Great Western Ry. Co., 8 Ir. 11. 0. L. 326.) 
 
 4. A railway company contracted to carry the plaintiffs' cattle 
 from Dublin to certain towns in England. During the sea 
 part of the journey some of the animals were injured and others 
 killed, through alleged negligence in securing and stowing them. 
 In an action for the loss of the cattle the company pleaded that the 
 ordinary rate charged by them for the carriage of the cattle to the 
 places to which the plaintiffs' cattle were booked was a reasonable 
 rate, and that at such rate they undertook the carriage of cattle to 
 those places, without, as regarded the sea portion of the journey, 
 any limitation to their liability so far as imposed by law, and, as
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 153 
 
 regarded the land portion, without any unjust or unreasonable Chap. xi. 
 
 conditions, of which the plaintiffs had notice when delivering their —^ 1- 
 
 cattle for carriage ; and that the plaintiffs elected and contracted 
 to have their cattle carried at a certain reduced rate, upon a special 
 contract that the same should be conveyed at the owners' sole risk 
 in connection with the sea part of the transit. 
 
 The plaintiffs, by their reply, alleged that the alternative con- 
 tract of carriage at ordinary rates offered by the company was not, 
 as regarded the land portion of the carriage, without any unjust 
 and unreasonable conditions imposed, but was subject to a condi- 
 tion " that, where the charge of conveyance is per waggon, as the 
 owner or his servant is required to superintend the loading of the 
 stock, and is allowed to place as many animals in such waggon as 
 he considers may be conveyed with safety, the company will not 
 be responsible for loss arising in any way from the overcrowding 
 of such waggons, or for injuries done in the loading or unloading 
 thereof, or in consequence of one animal injuring another." It 
 was held, on demm-rer to the replication, that both the condition 
 respecting the sea part of the transit to which the special contract 
 was subject, and the condition alleged in the replication to have 
 been annexed to the alternative contract of carriage offered, were 
 unjust and unreasonable, and that, therefore, the demurrer should 
 be overruled. 
 
 Qucnj, whether the principle that in such a case the special con- 
 tract may be supported by the option of a just and reasonable 
 alternative contract applies where the alternative offered is subject 
 to conditions limiting the common law liability of the carrier ? 
 {Corn'fjan v. Great NortJieni and Manchester, l^hefficht, and Lincoln- 
 shire Ily. Co., 6 L. R. Ir. Ex. 90.) 
 
 5. The plaintiff delivered cattle, carriage prepaid, to the defen- 
 dant railway company for carriage on the terms of signed condi- 
 tions, whereby, in consideration of an alternative reduced rate, it 
 was agreed tliat the company were " not to be liable in respect of 
 any loss or detention of or injmy to the said animals, or any of 
 them, in the receiving, forwarding, or delivery thereof, except
 
 154 THE LA W OF CARRIERS. 
 
 ^^^?'^}' iipon proof that sucli loss, detention, or injury, arose from the 
 
 • wilful misconduct of the company or its servants." The cattle 
 
 were carried ; but, on application made for them by the plaintiff, 
 the defendants, in consequence of their clerk having negligently 
 omitted to enter the cattle on the consignment note as " carriage 
 paid," refused to deliver them, and alleged that the carriage was 
 not paid. The cattle were kept exj)osed to tlie weather until the 
 next day, when the mistake having been ascertained they were 
 delivered. They were damaged by the exposure. In an action 
 for damages by reason of wrongful detention and negligence, it 
 was held, that the withholding of the cattle, under a groundless 
 claim to retain them, at the end of the transit was not " detention" 
 within the conditions, and the company were therefore liable. 
 {Gordon v. Gf. W. Ry. Co., 8 Q. B. D. 44 ; 51 L. J. Q. B. 58.) 
 
 6. As an alternative to a carriers' contract w^hich admittedly 
 contained unreasonable conditions, the carriers offered to carry at 
 certain reasonable rates, but subject to a condition " that they 
 would not be accountable for the correct selection of the owner's 
 cattle on landing, nor on loading into the waggon at L." (the ter- 
 mination of the sea journey), "nor on unloading at destination." 
 It was held, that this condition, upon its fair construction, would 
 extend to exempt the carriers from responsibility for negligence or 
 default on their own part in the selection of the cattle on landing, 
 and was therefore unreasonable and unjust. 
 
 In considering whether conditions annexed to carriers' special 
 contracts are just and reasonable, such conditions must be con- 
 strued according to the ordinary meaning of their language, with- 
 out implying any limitation or exception not expressed. {M^Nally 
 V. Lancashire and Yorkshire By. Co., 8 L. E,. Ir. Ex. (App.) 81.) 
 
 7. In an action against a railway company, as carriers, for negli- 
 gence, whereby a horse delivered to them by the plaintiff was 
 injured at one of their stations, Gformanstown, the defendants 
 pleaded that they received the horse under a special contract, con- 
 taining a condition that, in case of animals for which a contract 
 note with two rates of carriage should be offered to the customer,
 
 THE TRANSIT OF THE GOODS ON THE BAILWAY. 155 
 
 the defendants would give him the alternative of carrying at either Chap. xi. 
 
 rate ; that at the full rate, which would be charged when the con- '■ ^ 
 
 trary was not expressed, the defendants would undertake the 
 ordinary duties of carriers, subject to the conditions in the said 
 contract note and their statutory rights ; but that at the reduced 
 rate the defendants would carry at the owner's risk, exempt from 
 all liability not occasioned by the wilful misconduct of their ser- 
 vants acting within the scope of authority ; and that the plaintiflE 
 elected to have his horse carried at the lower rate ; and that the 
 injuries were not caused by the wilful misconduct of the defen- 
 dants' servants acting as aforesaid. They also pleaded that 
 another condition in the said contract was that the defendants 
 should not be liable for injuries occasioned by the fear or restive- 
 ness of animals ; and that the injuries complained of were solely 
 occasioned by the restiveness of the said horse. The plaintiff 
 signed a contract note containing the above conditions. It was 
 held, that the condition exempting the defendants " in all cases 
 from liability for injuries caused by fear or restiveness of animals," 
 did not embrace cases in which the injury immediately flowed from 
 the fear or restiveness of the animals, directly occasioned by some 
 act of negligence or want of care on the part of the defendants, 
 but applied only to injury from fear or restiveness caused by the 
 transit, with its ordinary incidents, and without any negligence or 
 default on the part of the companj- ; and that, taken in this limited 
 sense, the condition was not unreasonable. It was also held, that 
 it was unnecessary that the two alternative rates should appear on 
 the face of the contract note, but that it was sufficient that the con- 
 tract note referred to the defendants' tariff containing all the rates. 
 The contract note also contained, amongst others, the two fol- 
 lowing conditions : — No. 8, that no claim in respect of goods would 
 be allowed unless made within three days after delivery ; and 
 No, 9, that all goods were received subject to the company's gene- 
 ral lien both for carriage thereof and all other charges against the 
 customer. It was held, that " goods " in these conditions meant 
 inanimate, not horses or cattle, and that the conditions were reason-
 
 156 THE LAW OF CARRIERS. 
 
 Chap. XI. able ; but, scmhle, that tbey did not properly come before tbe 
 
 ^^' ^^^' Court for decision under the 17 & 18 Yict. c. 31, s. 7, which only 
 
 deals with the receiving, forwarding or delivering of animals, goods 
 
 and things, and these conditions related to something occurring after 
 
 delivery. {Moore v. Gt. N. Ry. Co. {Ireland), 10 L. E. Ir. C. L. 95.) 
 
 8. A special contract for the conveyance of cattle by railway 
 contained the following conditions : — " The owner undertakes all 
 risks 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 places of 
 loading or unloading, or of the carriage in which the cattle may be 
 loaded or conveyed, or from any other cause whatsoever." " The 
 company will grant free passes to persons having the care of live 
 stock, as an inducement to owners to send proper persons with and 
 to take care of them:" and it was held that the first of these condi- 
 tions was unreasonable, and that its unreasonable character was 
 not removed by the fact that the company under the second condi- 
 tion granted, and the owner accepted, a free pass for a person who 
 travelled with the cattle sent. {Booth v. N. East. By. Co., L. E. 
 2 Ex. 173 ; 3G L. J. Ex. 83.) 
 
 9. By arrangement between a railway company and a steamship 
 company, cattle were carried by sea from Dublin to Liverpool, 
 with an alternative lower rate, imposing upon the owner all risk 
 connected with the sea part of the journey, and it was held 
 (Mm^phy, J., (Uhh.), that a stipulation exempting the railway com- 
 pany, in contracts for conveyance at the lower rate, from liability 
 for injury caused to cattle by the negligence or misconduct of the 
 crew of the steamships was unreasonable. {Bonan v. Midland By. 
 Co., 14 L. E. Ir. 157.) 
 
 10. A railway company entered into a special contract, by 
 which they agreed to carry cattle at a lower rate, on condition that 
 they shoidd be liable for negligence only. It was held, that this 
 was not an unreasonable condition within the meaning of sect. 7 
 of the Eailway and Canal Traffic Act, 1854. 
 
 It was also decided in that case that the condition took the com-
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 157 
 
 pany out of the category of common carriers, and that accordingly, Chap, xi. 
 
 in an action against the railway company for damage to the cattle '■ L 
 
 during the journey, the onus of proving negligence was on the 
 plaintiff. [Han-is v. Midland Ry. Co., 25 W. E. 63.) 
 
 11. Cattle were carried by a railway company under a special 
 contract signed by the consignor, which stated that the company 
 had two rates for the conveyance of cattle : one the ordinary rate 
 when they took the ordinary liability of the carrier ; the other a 
 reduced rate ; that these cattle were to be carried at the reduced 
 rate, the company to be relieved 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. A 
 notice was posted up in the company's ofHce which stated that the 
 company had two rates, namely the owner's risk rate upon the 
 terms above given, and the company's risk rate, which was 10 per 
 cent, above the owner's risk rate, at which the company undertook 
 the ordinary risk of carriers in respect of rail transit, limited for 
 neat cattle to 15/., for pigs and sheep to 2/., but did " not admit 
 liability for any animals dying of disease or arriving at destination 
 in such condition as to be able to walk from the truck." The con- 
 signor had never seen any rate but the owner's risk rate. After 
 two trials cattle had ceased to go at the higher rate. The higher 
 rate was less than the maximum allowed by the company's Acts. 
 No list of rates was exhibited. 
 
 The cattle having been injured through the negligence (but not 
 the wilful misconduct) of the company's servants, it was held by 
 the House of Lords that the notice of the higher rate was not in- 
 validated by the limitation as to value, nor by the fact that it did 
 not mention the terms upon which cattle could be carried without 
 limitation of value, as provided by the Railway and Canal Traffic 
 Act, 1854, sect. 7 ; that the clause as to not admitting liability 
 meant only that the liability must be established by proof ; that so 
 construed the condition was just and reasonable within sect. 7 ; 
 that the consignor might have known and must be taken to have 
 known the terms of the higher rate, and had the offer of a just and
 
 158 THE LA W OF CARRIERS. 
 
 Chap, XI. reasonable alternative ; and that the company were therefore pro- 
 
 tected by the special contract. {Great Western Ry. Co. v. McCarthy^ 
 
 12 App. Cas. 218 ; 56 L. T. 582.) 
 
 And see Candy v. Midland Ry. Co. (38 L. T. N. S. 226) ; 
 Wrexham Ry. Co. v. Little Mountain Co. (38 L. T. N. S. 290) ; 
 Robinson v. G. W. Ry. Co. (35 L. J. C. P. 123) ; B'Arc v. L. ^ 
 JY. W. Ry. Co. (L. E. 9 0. P. 325) ; and Finlay v. iY. British Ry. 
 Co. (8 Sess. Ca. (3rd Ser.), p. 959). 
 
 In addition to the decisions just quoted, where the question was 
 whether the customer was offered by the railway company a bond 
 fide and reasonable alternative as to rate or otherwise, it may be 
 useful to give a list of conditions which have been held to be 
 reasonable or unreasonable. 
 
 The following conditions have been held to be reason- 
 able : — 
 
 1. " Groods conveyed at special or mileage rates must be loaded 
 and unloaded by the owners or their agents, and the company will 
 not be responsible for any risk of stowage, loss or damage, however 
 caused, nor for discrepancy in the delivery as to either quantity, 
 number or weight, nor for the condition of articles so carried, nor 
 for detention or delay in the conveying or delivery of them, how- 
 ever caused." [Simons v. Great Western Ry. Co., 26 L. J. C. P. 25.) 
 
 2. " That the company will not, under any circumstances, be 
 liable for loss of market or other claim arising from delay or 
 detention of any train, whether at starting or at any of the 
 stations or in the course of the journey ; " in answer to a claim 
 arising from loss of market. {White v. Great Western Ry. Co., 26 
 L. J. C. P. 158. See Beat v. South Devon Ry. Co., post ; Lord v. 
 Midland Ry. Co., 36 L. J. 0. P. 170 ; L. E. 2 0. P. 339 ; Matheas 
 V. Bublin and Drogheda Ry. Co., 17 Jr. C. L. E. 87.) 
 
 3. " The company is to be held free from all risk or respon- 
 sibility in respect of any loss or damage arising in the loading or 
 unloading, from suffocation or from being trampled on, bruised, or 
 otherwise injured in transit, from fire, or from any other cause
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 159 
 
 whatever. The compcany is not to be held responsible for carriage Chap. xi. 
 
 or delivery within any certain or definite time, nor in time for any -^ '- 
 
 particular market ; " in answer to a claim for suffocated and in- 
 jured cattle sent by rail. {Pardington v. South Wales Uy. Co., 26 
 L. J. Ex. 105 ; but see M'Manus v. Lancashire and Yorkshire Ry. 
 Co., 28 L. J. Ex. 353 ; 4 H. & N. 327 ; and Rooth v. N. E. Ry. 
 Co., 3G L. J. Ex. 83.) 
 
 4. " No claim for deficiency, damage, or detention shall be 
 allowed unless made within three days after delivery of the goods, 
 nor for loss unless made within seven days after the time when 
 they should have been delivered." [Simons v. G. W. Ry. Co., 
 supra ; Lewis v. Q. W. Ry. Co., 29 L. J. Ex. 425 ; 5 H. & N. 867.) 
 
 5. " The company will not be answerable for the loss or deten- 
 tion of any goods untruly or incorrectly described or declared in 
 the declaration or receiving-note furnished by the company." 
 {Leicis V. G. W. Ry. Co., supra.) 
 
 6. " The company will not undertake to convey fish except 
 under the general conditions published at the railway stations in 
 the train tables, and except under the following special condi- 
 tions : — ' That the company shall not be responsible imder any 
 circumstances for loss of market, or other loss or injury arising 
 from delay or detention of trains, exposure to weather, stowage, or 
 from any cause whatever other than gross neglect or fraud.'" 
 
 In the time tables of the company the regulations for conveying 
 fish were as follows : — 
 
 " Fish, under special conditions, will be conveyed by (certain 
 specified trains). No fish will bo conveyed by the 10.45 a.m. up- 
 train. The company will not undertake to carry fish by the 
 7.10 p.m. up-train, but in limited quantities, subject in all cases to 
 the immediate convenience and arrangements of the company." 
 " The company hereby give notice that fish conveyed upon the 
 railway is so conveyed by special agreement only, and on the 
 express condition that the sender or his agent shall, on delivering 
 the fish at the company's station or other place whence the same 
 is to be conveyed, sign an order and declaration exempting the
 
 160 THE LAW OF OARRIEES. 
 
 Chap. XI. company from all liability for loss or injury arising from delay or 
 
 Art* 171* • n • 
 
 detention of train, or from any cause other than gross neglect or 
 
 fraud." {BealY. South Devon R,/. Co., 29 L. J. Ex. 441 ; 5 H. & 
 N. 875 : affirmed in Ex. Ch. 12 W. R. 1115 ; 11 L. T. N. S. 184 ; 
 3 H. & C. 337.) 
 
 7. " The company will not be answerable for the loss or deten- 
 tion in respect of goods destined for places beyond the limits of 
 the company's railway ; and as respects the company, their respon- 
 sibility will cease when such goods shall have been delivered over 
 to another carrier in the usual course for further conveyance. 
 Any money which may be 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 consignors, and for the 
 purpose of being paid to the other carrier." [Aldridge v. Great 
 Western Ry. Co., 33 L. J. C. P. 161 ; 15 0. B. (N. S.) 582.) 
 
 The following conditions have been held to be un- 
 reasonable : — 
 
 1. " The company will not be accoimtable for the loss, deten- 
 tion, or damage of any package insufficiently or improperly packed, 
 marked, directed or described, or containing a variety of articles 
 liable by breakage to damage each other." {Simons v. Great 
 Western Ry. Co., 26 L. J. 0. P. 25 ; Garton v. Bristol and Exeter 
 Ry. Co., 30 L. J. Q. B. 273 ; 1 B. & S. 112.) 
 
 2. " This ticket is issued subject to the owner's undertaking all 
 risk of conveyance, loading and unloading whatsoever, as the com- 
 pany 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." (M'Manns 
 V. Lancashire and Yorkshire Ry. Co., 28 L. J. Ex. 353 ; 4 H. & N. 
 327 ; irCance v. L. and JY. W. Ry. Co., 7 H. & N. 477 ; 34 L. J. 
 Ex. 39 ; Gregory v. West Midland Ry. Co., 33 L. J. Ex. 155.) 
 
 3. " 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
 
 THE TRANSIT OF THE GOODS OK THE RAILWAY. 161 
 
 station, platform or other places of loading or unloading, or of the Chap. XI. 
 
 carriage in which they may be loaded or conveyed, or from any 
 
 other cause whatsoever." {Rooth v. iV. JE. Ry. Co., L. E. 2 Ex. 
 173 ; 36 L. J. Ex. 83.) 
 
 4. " The company shall not be responsible for the loss of or 
 injury to any marbles, musical instruments, toys or other articles, 
 which from their brittleness, fragility, delicacy or liability to 
 ignition are more than ordinarily hazardous, unless declared and 
 insured according to their value." {Peek v. JSf. Staff. Ilij. Co., 
 32 L. J. a. B. 241 ; 10 H. L. Cas. 473.) 
 
 5. " The company will not be answerable for the loss or detention 
 of or damage to wrappers or packages of any description charged 
 by the company as ' empties.' " {Aldridge v. G. IF. By. Co., 33 
 L. J. C. P. IGl ; 15 C. B. (N. S.) 582.) 
 
 6. " The company are not to be answerable for any consequences 
 arising from overcarriage, detention or delay in or in relation to 
 the conveying or delivery of the said animals, however caused." 
 {AlldayY. G. W. Ry. Co., 34 L. J. Q. B. 5 ; 5 B. & S. 903 ; Kirhy 
 Y. G. W. Ry. Co., 18 L. T. N. S. 658.) 
 
 7. " The railway company will not bo liable ' in any case ' for 
 loss or damage to a horse or dog above certain specified values 
 delivered to them for carriage, unless the value is declared." [Ash- 
 enden v. London ^ Brighton By. Co., 5 Ex. D. 190 ; 42 L. T. 
 586.) 
 
 Hawkins, J., in delivering judgment in that case, said: " Had 
 the defendants by their conditions stipulated, as they easily might 
 in a very few words, simply 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, and if embodied in a signed contract, 
 would have protected them against liability for the loss which 
 occurred." 
 
 8. " The company are not and will not be common carriers of 
 dogs, nor will they receive dogs for conveyance except on the terms 
 that they shall not be responsible for any amount of damages for 
 
 M. M
 
 162 THE LAW OF CARRIERS. 
 
 a'^^ m' ^^^® ^^^^ thereof, or for injury thereto beyond the sum of 21., unless 
 
 a higher value he declared at the time of delivery to the company, 
 
 and a percentage of 5 per cent, paid upon the excess of value 
 beyond the 21. so declared." {Dickson v. Gt. N. R>j. Co., 18 Q. B. 
 D. 176; 56 L.J. Q. B. 111.) 
 
 9. " Every stipulation or condition professing to exempt a rail- 
 way company from liabihty for its own negligence or misconduct, 
 or that of its servants or agents." [Per Lord Wensleydale in Peek 
 V. N. Staff. Ry. Co., ante, p. 146 ; Lyon v. Metis, 5 East, 438 ; 
 Doolan v. Midtand Ry. Co., 2 App. Cas. 792.) 
 
 In the latter case Lord Ellenhorough said : "It is impossible, 
 without outraging common sense, to allow carriers to say, ' We 
 will receive your goods, but we will not be bound to take any care 
 of them, and will not be answerable at all for any loss occasioned 
 by our own misconduct, be it ever so gross or injurious.' " (And 
 see Illinois Central Rail. Co. v. Joute, 13 111. 424.) 
 
 As to the unreasonableness of part of the contract avoiding that 
 part only, see 3PCance v. L. 8f N. W. Ry. Co., 31 L. J. Ex. Qd ; 
 7 H. & N. 477 ; and per Kelly, 0. B., in RoothY. N. E. Ry. Co., 
 L. E. 2 Ex. 178. 
 
 Where conditions are in the alternative, if either of them is 
 unreasonable, both are so. {Lloyd v. Limerick ^ Waterford Ry. Co., 
 15 Ir. C. L. Eep. 37.) 
 
 172. Where a railway comjoany under a contract 
 for carrying goods by sea, procure the same to be 
 carried in a vessel not belonging to them, their 
 liability in respect of loss or damage to such goods is 
 the same as though the vessel had belonged to them. 
 (The Eegulation of Eailways Act, 1871, 34 & 35 Vict, 
 c. 78, s. 12.) 
 
 By a proviso to section 12 this liability only attaches when the 
 loss or damage to the goods haj)pens during the carriage of the
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 163 
 
 same iu sucli vessel, the proof to the contrary to lie upon the ^^^^-^l- 
 railway company. 
 
 173. Where a railway company by through book- 
 ing contract to carry any goods from place to place, 
 partly by railway and partly by sea, or partly by canal 
 and partly by sea, a condition exempting the company 
 from any loss or damage which may arise dnring the 
 carriage of such 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 acci- 
 dents of the sea, rivers and navigation of whatever 
 kind soever, shall, if published in a conspicuous man- 
 ner 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 goods, 
 be valid as part of the contract between the consignor 
 of such 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. 
 (The Regulation of Railways Act, 1868, 31 & 33 Vict. 
 c. 119, s. 14.) 
 
 The ohject of this enactment was to give to railway companies 
 the same protection with regard to losses by sea as the ordinary 
 shipowner has. Sect. 16 of the same Act provides that where a 
 company are authorized to use, maintain, and work steam vessels, 
 tolls are to be charged equally to all persons using the vessels, and 
 that no advantage is to he given to persons by reason of their ha^dng 
 previously travelled over the railway {jwHf, Art. 263). To this 
 clause was appended a proviso that the provisions of the Railway 
 and Canal Traffic Act, 1854, should extend to the steam vessels, and 
 to the traffic carried on thereby ; the intention being that goods 
 
 m2
 
 164 THE LAW OF CARRIERS. 
 
 Chap. XI. traffic sliould also be protected from undue preference and undue 
 
 Art 173. 
 
 prejudice, and that the railway companies should give all facilities 
 
 for forwarding traffic by these steamers as by the railway. All 
 this is provided for by the Eailway and Canal Traffic Act, 1854, 
 as amended by the subsequent Acts. By sect. 12 of the Regula- 
 tion of Railways Act, 1871 {ante, Art. 172), it was provided that 
 where a railway company make a contract for the conveyance of 
 goods by vessels not belonging to them, they shall be liable to the 
 same extent as if they owned the vessels, or were party to the 
 working of them. The effect of this was to make the jjroviso to 
 sect. 16 of the Act of 1868 applicable to all traffic through booked 
 by sea by railway companies, whether they had any control over 
 the vessels or not. In Doolan v. Midland Rf/. Co. (2 App. Cas. 792), 
 it was decided that the effect of the said sect. 16, taken with sect. 12 
 of the Act of 1871, was to extend all the provisions of the Railway 
 and Canal Traffic Act, 1854, to railway companies in respect of 
 their carrying merchandize under a contract in vessels not belong- 
 ing to them. 
 
 The effect of this was, amongst other things, to decide that not- 
 withstanding the express provisions of sect. 14 (in this Article) , the 
 railway companies could only protect themselves from losses by sea 
 by means of a contract signed in accordance with sect. 7 of the 
 Act of 1854 {ante, Art. 168). 
 
 The Railway and Canal Traffic Act, 1888, repeals the proviso to 
 sect. 16 of the Act of 1868, and by sect. 28 enacts in specific terms 
 what portions of the Traffic Act are applicable to traffic by steamers. 
 (See 51 & 52 Vict. c. 25, s. 2S,po8t, Ai-t. 262.) 
 
 See ante, Ai't. 83, p. 72. 
 
 11. — Generally. 
 
 174. The employment of a railway company by 
 delivery to them of goods to be carried, presumptively
 
 THE TRANSIT OF THE GOODS ON THE RAILWAT. 165 
 
 fixes them with all the liabilities attached by the cus- ^}^y\'^}' 
 
 •^ Art. 174. 
 
 torn of the realm, recognized as law, to the occupation 
 of a common carrier, such as the obligation of carrying 
 and delivering within a reasonable time, and at a 
 reasonable charge, and of insuring the goods during 
 the carriage. 
 
 A railway comj)any being, in the absence of any 
 contract to the contrary with the customer, insurers 
 of the goods entrusted to them, imj^liedly undertake 
 safely and securely to carry and deliver the goods in 
 the same condition in which they received them. 
 {Higginhotham v. G. N. Eg. Co., 10 W. R. 358, ^^er 
 Pollock, C. B.) 
 
 But a railway company are not liable for loss or 
 injury to the goods occasioned by the act of God or 
 the Queen's enemies, or resulting from the ordinary 
 wear and tear and chafing of the goods in the course of 
 their transit, or from their ordinary loss, deterioration 
 in quantity or quality in the course of the transit, or 
 from their inherent natural infirmities or intrinsic 
 qualities, or which arise from the negligence or fraud 
 of the owner or consignor thereof. (See ante, Art. 61, 
 p. 51 ; ^<?r Willes, J., in Blotuer v. G. W. Rg. Co., L. R. 
 7 C. P. 655 ; 41 L. J. C. P. 268 ; Story on Bailm.) 
 
 If the owner of the goods assumes the care and 
 custody of them himself, instead of trusting them to 
 the railway company, the company are not liable for 
 any loss or damage. (See ante, Art. 6(), p. 49, and 
 post. Chap. XVII.) 
 
 As to when a railway company are not insurers of goods, see 
 ante, p. 145.
 
 166 THE LAW OF CARRIERS. 
 
 ^}^'^\^}' As to what is a loss by the act of Grod or the Queen's enemies, 
 
 Art. 174. '' 
 see ante, Chap. Y. 
 
 If perishable articles, as fruit, are damaged by their own weight 
 and the inevitable shaking of the carriage, they are injured through 
 their own intrinsic qualities. {Kendall v. L. t^" ^S'. W. Ey. Co., 41 
 L. J. Ex. 184; L. E. 7 Ex. 373.) 
 
 The railway company are not liable for the heating of grain, or 
 for the fermentation, acidity, or effervescence of fluids, when these 
 changes are the results of ordinary processes going on in the goods 
 themselves, without the aid of causes introduced by the carriers. 
 So, a railway company are not liable for the ordinary wasting on 
 the journey of goods which are naturally liable to waste ; such as 
 the ordinary evaporation or leakage of fluids contained in casks. 
 It follows, therefore, that the railway company are not liable when 
 the damage is due to the goods having been sent for conveyance 
 in a condition unfit to travel. See Baldwin v. L. C. 8^ D. By. Co. 
 [ante, Art. 159), where the plaintiff was not allowed to recover the 
 value of some rags which had been improperly delayed in transit, 
 and had consequently become rotten ; that being due to their 
 having been packed in a damp state, and the railway company 
 having had no notice of their condition. 
 
 See ante, Arts. 61 — 65, p. 51. 
 
 176. It is the duty of a railway company to do 
 what they can by reasonable skill and care to avoid all 
 perils, including the excepted perils. If, notwithstand- 
 ing such skill and care, damage does occur from these 
 perils, they are released from liability; but if their 
 negligence or want of skill has brought on the peril, 
 the damage is attributable to their breach of duty, and 
 the exception does not aid them. ( Gill v. Man. Sheff. 
 ^ Lin. Ry. Co., L. E. 8 Q. B. 186 ; 42 L. J. Q. B. 95 ; 
 FliilUin Y. ClarU, 20 L. J. C. P. 1G7; ^yiUon v. Lane.
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 1^7 
 
 Sf YorJc. Ry. Co., 30 L. J. C. P. 232; ante, Chap. V. chap.xi. 
 Art. Co.) 
 
 The precise degree of care which it is the duty of a carrier to 
 use in dealing with the goods entrusted to him, must depend upon 
 and vary with the natiu-e and condition of the thing carried, and 
 the ever-varying circumstances under which the goods are dealt 
 with. " Some goods require much more tender handling than 
 others ; and the line of conduct which the carrier should propose 
 to himself is that which a prudent owner would adopt if he were 
 in the carrier's place, and had to deal with the goods or animals 
 under the circumstances and subject to the condition in which the 
 carrier is placed, and under which he is called on to act." (Per 
 Blackburn and Lush, JJ., in GUV& Case, sujyrcf.) 
 
 176. A railway company are not boinid to use extra- 
 ordinary efforts or incur extra expense in order to 
 surmount obstructions caused by the act of God^ as a 
 fall of snow. {Briddon v. G. N. Bf/. Co., 28 L. J. Ex. 51.) 
 
 The duty of a railway company is to carry goods intrusted to 
 them to be forwarded by a goods train with all due expedition 
 under ordinary circumstances, but when a snowstorm has occurred 
 to impede the running of heavy trains without much extra exer- 
 tion, they are not boimd at all hazards and at any extra cost 
 to expedite the transit. It seems to have been the opinion of 
 Bramwell, B., in that case, that they might be bound to divide 
 the train, so as to forward it as quickly as practicable. (See ante, 
 p. 43, and^;o«;', Art. 290.) 
 
 177. A railway company, being insurers of the 
 goods carried, are responsible for damage or loss occa- 
 sioned by accidental fire, while such goods are in their 
 custody or possession, resulting neither from the act of 
 God, nor of the Queen's enemies. [Collins y. Bristol cV
 
 168 THE LAW OF CARRIERS. 
 
 Chap. XI. Exeter Ry. Co., 29 L. J. Ex. (H. L.) 741. See ante, 
 
 Art. 177. J ^ \ J 7 
 
 Chap. V. Art. 51, pp. 45, 46.) 
 
 When a carrier contracts for exemption from habihty for losses 
 occiu-ring by fire, the owner of the goods lost by fire cannot recover 
 for them without affirmative proof that the fire was the result of 
 negligence. {Little Hod: Ry. Co. v. Harper and Wilson, 21 A. & 
 E. Ey. Ca. 97.) 
 
 178. A railway company are responsible for any 
 loss or damage happening from any defect in the 
 vehicle (in the al3sence of any contract exonerating 
 them). (Redhead v. Midland Ry. Co., L. R. 2 Q. B. 
 412 ; 38 L. J. Q. B. 169 ; Chippendale \ . Lane. ^ York. 
 Ry. Co., 21 L. J. Q. B. 22; Camden, ^t. Ry. Co. v. 
 Burke, 13 Wend. 611.) 
 
 In the case of Redhead v. Midland Ry. Co., supra, it was said in 
 the Exchequer Chamber (L. E. 4 Q. B. 383) to be extremely 
 doubtful whether carriers of goods were so responsible. But in the 
 Court below, Lush and Blackburn, JJ., both considered it estab- 
 lished that carriers of goods, whether by land or water, warranted 
 the fitness of their vehicles or vessels for the purpose, and were 
 responsible for the consequences of latent defects. Montague 
 Smith, J., in giving judgment, said : " The learned counsel for 
 the plaintiff felt the difiiculty of the attempt to apply the entire 
 liability of the carrier of goods to the carrier of passengers, but he 
 contended for and mainly relied on the proposition that there was 
 at least a warranty that the carriage in which the passenger 
 travelled was roadworthy, and that the liability of the carrier of 
 goods in this respect ought to be imported into the contract with 
 the passenger. But it is extremely doubtful whether such 
 warranty can be predicated to exist in the contract of the common 
 carrier of goods. His obligation is to carry and re-deliver the goods 
 in safety, whatever happens ; in the words of Lord Holt, ' He is 
 bound to answer for the goods at all events.' Again, ' The law
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 169 
 
 cliarges this person thus intrusted to carry goods against all events Chap. xi. 
 
 but acts of Grod and of the enemies of the King.' And this broad ; L 
 
 obligation renders it unnecessary to import into the contract a 
 special warranty of the roadworthiness of the vehicle, for if the 
 goods are safely carried and re-delivered, it would be immaterial 
 whether the carriage was roadworthy or not, and if the goods are 
 lost or damaged the carrier is liable on his broad obligation to be 
 answerable ' at all events,' and it is unnecessary to inquire how 
 that loss or damage arose," (See also Kopitojfv. Wilson, 1 Q,. B. 
 D. at p. 383 ; Bechford v. Crutwdl, 5 Car. & P. 242 ; and The Gkn- 
 fniui, 10 P. D. 103.) 
 
 In M'Maiws v. Lane. ^' Yorlc. Ei/. Co. (28 L. J. Ex. 353), the 
 plaintiff was held entitled to recover, on the ground that lie had 
 employed the defendants to carry his horses safely, and that they 
 had used an insufficient and improper vehicle, whereby the horses 
 had been injured. Williams, J., in delivering the judgment of 
 the Court, said : " 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 wliich seems naturally to belong to them 
 as a duty." 
 
 A railway company are not bound to submit "foreign" trucks and 
 carriages to the same rigid tests to which they would be bound to 
 submit a new truck or carriage before using it. 
 
 The nature of the examination of " foreign " rolling stock must 
 depend upon circumstances, it cannot be such as must necessarily 
 interfere with the traffic or business of the road. [Richardson v. 
 Gt. E. Ry. Co., L. P. 10 C. P. 486; 1 C. P. D. 342 ; Aitchison, 
 8fe. Ry. Co. v. Lcdbctter, 21 A. & E. Ey. Ca. 555. And see j^ost^ 
 Art. 289.) 
 
 179. It is the duty of a railway company to have 
 tlieir stations and station premises in a safe and
 
 170 THE LAW OF CARRIERS. 
 
 Chap. XI. proper condition, so that those who use them by the 
 
 comjjany's invitation for the purposes of transit 
 
 between the railway and liighway may do so without 
 injury to themselves or the traffic they bring or 
 remove. {Booth v. North E. By. Co., L. R. 2 Ex. 173 ; 
 36 L. J. Ex. 83.) 
 
 Kelly, C. B., in delivering judgment in that case, said : " But as 
 to seeming the railwaj'- company against liability for negligence in 
 respect of defects in the station, I think it quite impossible that the 
 stipulation permitting the owner and his servants to accompany 
 the cattle can affect the duty imposed by the common law upon 
 the company of taking care that the stations belonging to them, 
 over which persons have to pass, goods to be carried, and cattle to 
 be driven, shall be in a fit and proper condition, so as to secure 
 reasonable security for persons, property, or cattle, in the transit 
 from the railway or trucks to the highway. Under no circum- 
 stances can it be contended that the railway company are dis- 
 charged from their liability to provide a safe station for the transit 
 
 of these cattle It is clear that while some protection is 
 
 required in a railway station, it is impossible to say as a matter of 
 law, without information as to the circumstances of the locality, 
 that any specific precaution ought to have been taken so as to con- 
 stitute a legal obligation upon the railway company." 
 
 180. A railway company are not liable for damage 
 accruing to the goods carried from imj^roper packing 
 by the sender, at all events where there has been 
 nothing to indicate to the company the defective 
 nature of the packing. (See ante, Chap. V. Arts. 62, 
 64, and 155.) 
 
 The case of Richardson v. N. E. By. Co. (L. E. 7 C. P. 75 ; 41 
 L. J. C. P. 60) is generally cited for the proposition that where 
 goods are apparently properly packed and secured in the manner 
 in which such goods are usually packed or secured, but are in fact
 
 THE TRANSIT OF THE rWODS ON THE BAILWAY. 171' 
 
 imperfectly packed, the defect not being patent, a loss resulting chap. xi. 
 
 Art 180 
 
 from this defect would be within the exception arising from the '. 1 
 
 neglect of the customer. But it was not the case of a common 
 carrier, and negligence had to be proved against the company. 
 The Court held them not liable, on the ground that if the facts 
 proved negligence at all, they necessarily also proved contributory 
 negligence by the plaintiff. 
 
 " No person is entitled to claim compensation fi"om others for 
 damage occasioned by his neglect to do something which it was 
 his duty to do." {Per Cleasby, B., in Barhour v. S. E. liy. Co., 
 34 L. T. 67.) 
 
 If a carrier receives goods which are afterwards lost, he cannot 
 set up as a defence that they were not properly secured when 
 delivered to him. {Stuart v. Crawley, 2 Stark. 323.) 
 
 If packages containing goods are plainly defective, or become so, 
 during the transit, and the railway company have notice of the 
 defects, and might remedy them, they may be liable if they fail to 
 do so. {Notara v. Henderso)), L. R. 7 Q. B. 225.) 
 
 181. If the consignor fraudulently conceals the 
 value and risk from the railway company in order to 
 be charged at a lower rate for carriage, lie cannot 
 recover on account of a loss occasioned through such 
 concealment. [31^ Ounce v. L. ^' N. W. lly. Co.^ 31 L. J. 
 Ex. Q^. See ante, Chap. IV. Art. 33, p. 30, and cases 
 cited in Roscoe on Evidence (15th ed.) jd. 580.) 
 
 If the customer delivers to the carrier an article which he knows 
 to be likely to suffer injury from coming in contact with other 
 goods, but does not communicate that fact to the carrier, and 
 injmy does result, the carrier is not responsible. Nor does it 
 make any difference that the carrier might and ought to have 
 known — the article being well known in commerce — that it 
 possessed those injurious qualities. {IliitvJtinson v. Gidon, 5 C. B. 
 (N. S.) 149, 163.) Although the consignor is not in general bound 
 to volunteer information as to the nature of the goods, yet if he
 
 172 THE LAW OF CAIiRIEBS. 
 
 Chap. XI. intentionally make false answers to the carrier's inquiries, there is 
 
 '■ '- fraud, which avoids the contract. {Per Parke, B., in Walker v. 
 
 JacA-son, 10 M. & W. 168, 169 ; and ante, Art. 64, p. 54.) 
 
 182. Where a railway company undertakes to haul 
 along their line waggons belonging to private traders, 
 the extent of their obligation is to use reasonable care 
 and diligence. (Watson y. North British Rfj. Co.^ 3 
 Sess. Ca. (4th Scries) 637.) 
 
 In the American case of Mallory v. Tioga Ey. Co. (39 Barh. 
 488), it was held that a railway company was not exonerated from 
 its liability as a common carrier because the owner of the goods 
 provided his own truck in which the property is transported, and 
 assumes the loading and unloading, and furnishes a brakesman to 
 accompany the truck. 
 
 183. A railway company are not to be considered 
 as gratuitous bailees, but as common carriers, in 
 respect of empty packages which have already tra- 
 versed their line of railway when full, and for the 
 return carriage of which, when empty, it is the custom 
 not to make any further charge. [Aldridge v. G. W. 
 Ry. Co., 33 L. J. C. P. 161 ; 15 C. B. (N. S.) 582.) 
 
 In that case, a condition that " the company will not be answer- 
 able for the loss, or detention of, or damage to wrappers or pack- 
 ages of any descrij)tion charged by the company as ' empties,' " 
 was held not to be a just and reasonable condition within the 
 meaning of sect. 7 of the Eailway and Canal Traffic Act, 1854. 
 Erie, C. J., in delivering the judgment of the Court (Erie, C. J., 
 Williams, Willes, and Keating, JJ.), said: "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 empty packages, 
 therefore the company necessarily convey them on their line 
 gratuitously. The company may justly be considered as having
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 173 
 
 had the carriage of the empties prepaid in the shape of the previous Chap. xi. 
 payment for the carriage of the same packages when full, including ^^^' ^^^' 
 an obligation on the railway to carry the empties back without 
 further charge." 
 
 184. If goods are injured by any cause for which 
 the railway company are not responsible, the railway 
 company are still bound to take all proper and reason- 
 able care of them to preserve them from further injury. 
 {Taff Vale Ry. Co. v. Giles, 2 E. & B. 823 ; 23 L. J. Q. B. 
 43.) 
 
 See ante, Art. %b, p. 54. 
 
 A common carrier by land, upon an emergency or accident 
 happening, becomes agent by necessity for the owner to take care 
 of the goods, and to pledge his credit for that purpose. {G. N. 
 Ry. Co. V. SicafficIJ, L. E. 9 Ex. 132 ; 43 L. J. Ex. 89, post, 
 Art. 294.) 
 
 185. A stipulation by a railway company that the 
 goods shall be carried ''at the owner's risk" is con- 
 strued to except from the contract their general lia- 
 bility as insurers, but not their liability for negligence 
 as bailees undertaking the charge of the goods, nor 
 for breach of their undertaking to carry them within 
 a reasonable time, and the consequences of not doing 
 so. {Robinson v. G. W. Ry, Co., 35 L. J. C. P. 123 ; 
 UArc V. L. ^^ N. W. Ry. Co., L. R. 9 C. P. 325 ; S. ^^ 
 iV. Alabama Ry. Co. v. Ilcnlein, 52 Ala. 606.) 
 
 "Where a carrier, after carrying the goods to their destination, 
 gave notice that he continued to hold them as a warehouseman 
 only, upon the usual charges, but " at the owner's sole risk," and 
 the owner left them upon those terms ; the words were held merely 
 to refer to the previous liability as a carrier and to have no greater
 
 174 THE LAW OF CARRIERS. 
 
 Chap. XI. effect ; and lie remained liable for negligence in keeping the goods 
 
 ■ 1 as a warehouseman. {MitcheU v. Lane. 8^ York. Ry. Co., L. R. 
 
 10 a B. 25G; 44 L. J. Q. B. 107; ante, p. ^Q,]mt, p. 205.) 
 
 A railway company cannot compel the senders of goods to put 
 on the consignment note the words "owner's risk" or any other 
 words. They cannot claim the right of compelling any person to 
 enter into a contract with them, but merely the right to place 
 before their customers an alternative coming within the maximum 
 rate which they are entitled to charge — an alternative which they 
 are not bound to offer, and which is entirely for the advantage of 
 the sender in one respect, inasmuch as he is not bound to accept 
 it, and the company might have refused it to him altogether. 
 (See Art. 169, p. 146.) 
 
 A stipulation or condition that goods are to be carried " at 
 owner's risk" is frequently followed by a clause excepting " wilful 
 misconduct or negligence of the carrier's servants ; " but that 
 exception is one which the law always implies, and no condition 
 or stipulation will disjDense with the use of reasonable care on the 
 part of carriers or their servants on receiving, carrying, and de- 
 livering goods. The definition of wilful misconduct and negligence 
 laid down by Lord Justice Cotton in Leicis v. The Great Western 
 By. Co. (47 L. J. U- B. 138; L. R. 3 U. B. Div. 213), is 
 as follows : — viz., the " doing an unusual thing with reference to 
 the matter in hand without care, regardless whether it will or will 
 not cause injury to the goods carried or other subject-matter of 
 the transaction." (See also Gill v. The Manchester JRy. Co., 42 
 L. J. a. B. 89 ; L. R. 8 Q. B. Div. 187.) 
 
 When a company desires to impose special and stringent terms 
 upon its customers, there is nothing unreasonable in requiring that 
 those terms shall be distinctly declared and deliberately accepted. 
 {Henderson v. Stevenson, L. R. 2 H. L. (Sc.) 470.) 
 
 A railway company, carrying goods at " owner's risk rate," on 
 condition that they shall not be liable " in respect of loss or de- 
 tention," are liable for an intentional refusal to deliver in virtue 
 of a claim of lien. {Gordon v. Great Western Ry. Co., ante, p. 154.)
 
 THE TRANSIT OF THE GOODS ON THE riAILWAY. 175 
 
 186. It is the duty of a railway company trading ^ap. xi. 
 
 as carriers to have servants authorised to give direc- 
 
 tions and act for the company on all occasions as the 
 exigency of the traffic may require. {Taff Vale B//. 
 
 Co. V. Giles, 23 L. J. Q. B. 43 ; 2 E. & B. 823.) 
 See note to next article. 
 
 187. Where a railway company have on their pre- 
 mises a jierson who alone appears to act as their agent, 
 upon occasions where it is necessary to act with 
 promptness and decision, there is evidence for the 
 jury that he is invested with a general authority to do 
 all that is right and proper on behalf of those of 
 whom he is the apparent representative. {Gof v. 
 Gt. JV. Ejj. Co., 30 L. J. Q. B. 148; 3 E. & E. 672.) 
 
 See Poultoii V. L. 8^ S. W. By. Co. (L. E. 2 U. B. 534 ; 36 
 L. J. Q. B. 294), where the above case was distinguished; and it 
 was held that although a railway company under 8 Vict. c. 20, 
 ss. 103, 104, had power to apprehend a person travelling on the 
 railway without having paid his own fare, they had power only 
 to detain the goods for the non-payment of the carriage ; conse- 
 quently, as the railway company themselves would have had no 
 power to detain the plaintiff on the assumption that he had wrong- 
 fully taken the horse by the train without paying, there could be 
 no authority implied from them to the station-master to detain the 
 plaintiff on this assumption, and they were therefore not liable for 
 this act of the station-master. 
 
 In Taff V(de Ry. Co. v. Giles, supra, Pollock, 0. B., in delivering 
 judgment, said: — "In the present case I cannot distinguish be- 
 tween a railway company and any other large establishment of any 
 sort. If you go to a house of business and there make a demand 
 for goods, it is not necessary before you bring trover to have a 
 refusal by one of the partners. It is enough to have a refusal by
 
 176 THE LAW OF CARRIERS. 
 
 Chap. XI. the person who has the management of the business. I must 
 
 Art. 187 
 
 '. L understand by the term "managing director" the man who has 
 
 the management of the business. So, also, with respect to the 
 office of superintendent. I entirely agree that it is the duty of the 
 company to have some person clothed with a discretion to meet 
 any exigency that may arise and to grant any reasonable demand. 
 This is such a duty of the company that when I find that there is 
 a superintendent and a managing director, it is the reasonable con- 
 clusion that they are there for the purpose of giving such answer, 
 and doing what the company would be bound to do. Then it is 
 said that it could not be in performance of any part of the duty of 
 the company that these quicks were planted. I do not agree in 
 that view. It is not enough for the company to carry goods and 
 then throw them out into the street. Different sorts of articles 
 are carried. Something may occur which may make it a duty of 
 the company to take steps to prevent the goods from being spoiled. 
 Cattle on a long journey must be fed. Some articles require ware- 
 housing, some not. Here trees were taken ; the company must 
 have known that it might be a matter of great convenience to have 
 these trees placed in a place of safety until they could be removed. 
 I think it was a question for the jury whether what was done to 
 these trees was done on behalf of the company and by their autho- 
 rity. I think that what was done was done as part of the com- 
 pany's business." 
 
 " I conciu' in the opinion that there is sufficient evidence that 
 the persons who are said to be general superintendent and 
 managing director had power to bind the company as to all things 
 within the scope of the business of the company by any contract 
 within the limits of their employment. If they act beyond the 
 scope of their ordinary business in order to bind the company, it 
 must be shown that they are acting under a special authority from 
 the company, that is, from the board of directors. A refusal by 
 the superintendent to deliver goods carried by the company in the 
 ordinary course of his business would be binding on the company, 
 and amount to a conversion by the company. I only doubt
 
 THE TRANSIT OF THE GOODS ON THE BAILWAY. 177 
 
 whether the transaction as to the quicks at the navigation station Chap. xi. 
 
 Art 187. 
 
 was within the scope of the superintendent's ordinary authority, '. 1 
 
 and whether the permitting them to be planted on the land there 
 was within the scope of his authority, or whether it was not rather 
 an act of favour to the plaintiff. The case seems to me to resolve 
 itself into this question — Was the planting of the quicks incident 
 to the business of the company as carriers ? It rather struck me 
 that it was not." Per Parke, B. 
 
 " I think that what was done was within the scope of the general 
 superintendent's powers. These quicks are a bulky article. Being 
 living, they could not be kept alive without being stuck into the 
 ground. It is proper that that should bo done, and near to the 
 station, as otherwise the expense of carriage would have been 
 incurred, which would be considerable with ■ reference to their 
 value. A railway carrier should be ready to afford such accommo- 
 dation as this. There ought to be some one on the part of the 
 company authorized to receive and deliver out goods, and to do 
 things promptly that require immediate attention ; and who are 
 the persons who can do these things but the general superintendent, 
 the managing director, and the station clerk ? and to all of these 
 did the plaintiff apply for his goods." Per Maule, J. 
 
 " The planting the quicks seems to me to be merely the mode 
 adopted by the company for warehousing them, without which 
 they would have perished." Per Piatt, B. 
 
 In Roe V. Birkenhead, Lancashire 8f Cheshire June. Ry. Co. (21 
 L. J. Ex. 9), Pollock, C. B., said : — " The law lays down the same 
 rule for all, and we cannot make a different rule in the case of a 
 servant of a railway company and an ordinary tradesman. The 
 principle 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. If the act, indeed, had been one 
 that the company were legally authorized to do, it might have 
 been put as having been done with the authority of the company." 
 And Parke, B., said: — "I agree with the Lord Chief Baron that 
 the same rule must be applied to railway companies as to indivi- 
 
 M. N
 
 178 THE LA W OF CARRIERS. 
 
 Chap. XI. duals, and that we ouglit not to stretcli the law as ac^ainst those 
 
 Art. 187. ' o o 
 
 '- '— bodies merely because they are capable of paying for injuries done 
 
 by their servants." 
 
 It has been held that the station-master of a railway company 
 has not, although the general manager of a railway company has, 
 as incidental to his employment, authority to bind the company to 
 pay for surgical attendance, bestowed at his request on a servant 
 of the company injured by an accident on their railway. {Walker 
 V. G. W. Ry. Co., L. E. 2 Ex. 228 ; 36 L. J. Ex. 123.) 
 
 Kelly, C. B,, said: — "It appears to me that there is a great 
 distinction between a station-master and the general manager of 
 the company. If the general manager has no authority for this 
 purpose, no official of the company has. Must a board be convened 
 before a man who has both his legs broken can have medical 
 assistance ?" 
 
 Martin, B., said that, at the time when Cox v. Midland Counties 
 Ry. Co. (3 Ex. 268) was decided, the notion prevailed much more 
 extensively than at present, that a company could not be bound 
 except by an instrument under seal. 
 
 As to who are a carrier's servants for the purpose of receiving 
 the goods, see ante, Axi. 35, p. 32. 
 
 As to a railway company's servants entering into a special 
 contract to deliver in any particular time or place, even beyond 
 the terminus of their particular route, see post, Axt. 198, -p. 192. 
 
 The station-master is agent for the railway comj^any to deliver 
 the goods. {Post, Art. 201, p. 202.) 
 
 Porters, carters, and other subordinate persons employed by the 
 carrier to deliver the goods, are in general to be regarded as his 
 servants, and the goods, so long as they are in their hands, are not 
 to be considered as delivered. (Bell's Com. 7th ed, vol. 1, p. 494 ; 
 Shepherd 'v. Bristol and Exeter Ry. Co., L. E. 3 Ex. 189; Eedman 
 on Railways, p. 42.) 
 
 188. A railway comj^auy are bound, in the course 
 of their business as carriers, by the contract of the
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 179 
 
 ag-ent whom they put forward as having the manage- ^j^^\^}' 
 
 ment of that part of their business. [PicJcford v. 
 
 GrandJunc. B>j. Co., 12 M. & W. 7GG; IlealdY. Carey, 
 11 C. B. 977.) 
 
 In the first of those cases it appeared from the evidence that 
 certain goods were undoubtedly received by a railway company 
 for transmission on some contract or other, and that the only person 
 spoken to respecting such transmission w^as the party stationed to 
 receive and weigh the goods. It was held that this party must 
 have an implied authority to contract for sending the goods, and 
 that the company were consequently bound by that contract. 
 
 Eatlficatlon of directors can be of no avail as against a company 
 if the contract is one by which the company would not have been 
 bound, even if all proper formalities had been observed ; nor will 
 ratification by the shareholders amount to a ratification by the 
 company If the contract Is ultra vires of the company. If, on the 
 other hand, the contract would have been binding on the company, 
 if all proper formalities had been observed, or if all the share- 
 holders had concurred in it, ratification by or on behalf of the 
 company is perfectly possible. (See Llndley on Partnership, 
 i. 273 (3rd ed.).) 
 
 189, A railway company may be estopped from 
 setting- up the illegality of their acts in defence to 
 an action by a person who has been damaged by such 
 acts, even though the person so damaged would not 
 be estopped from setting up the illegality against the 
 company if it would assist his case. [Doolan v. 31{dland 
 Fuj. Co., 2 App. Cas. 792.) 
 
 In that case a railway company was guilty of an illegahty by 
 working steamboats, not being authorized by law to work them ; 
 and it was held, that the company could not set up the illegality 
 
 N 2
 
 180 THE LAW OF CARRIERS. 
 
 Chap. XI. in finswer to a claim for damages arising out of the working of the 
 Art. 189, . , , 
 steamboats. 
 
 190. The special Act of a railway company is to 
 be construed strictly against the company, and libe- 
 rally in favour of the public. (Per Tindal, C. J., 
 Mauie, J., and Cresswell, J., in Parker v. G. W. Ry. 
 Co., 13 L. J. C. P. 105 ; 7 M. & G. 253.) 
 
 *' The language of this Act of Parliament is to he treated as the 
 language of the promoters of it ; they ask the legislature to confer 
 great privileges upon them, and profess to give the puhlic certain 
 advantages in return. Acts passed under such circumstances 
 should he construed strictly against the parties obtaining them, 
 but liberally in favour of the public." (See Stourbridge Canal 
 Co. v. Whecloj, 2 B. & Ad. 790; Angell on Carriers (5th ed.), 
 p. 121.) 
 
 Where an Act of Parliament confers upon a landowner a private 
 right, creating a burden upon a railway, and restraining the direc- 
 tors from regulating the traffic so as best to accommodate the 
 public, it must be construed strictly. {Turner v. L. 8f S. W. Ry. 
 Co., L. E. 7 Eq. 561 ; 43 L. J. Ch. 430.) 
 
 " We were properly reminded by counsel that toll clauses are 
 to be construed with strictness, and that it is the public rather 
 than the parties who have obtained the special Act containing such 
 clauses, in whose favour any ambiguity of meaning should be 
 determined." (Per the Railway Commissioners in Aberdeen Com- 
 mercial Co. V. Gt. North of Scotland R>/. Co., 3 Ry. & Ca. Tr. Ca. 
 213.) 
 
 A private Act of Parliament will be construed more strictly 
 than a public one as regards provisions made by it for the benefit 
 of the persons who obtained it, but when once the true construc- 
 tion is ascertained, the effect of a private Act is the same as that of 
 a public Act. {AltrincJtam Union v. Cheshire Lines Committee, 15 
 Q. B. D. 597.)
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 181 
 
 " Acts of Parliament such as that under consideration are Chap. xi. 
 
 . , Art. 190. 
 framed and offered to Parliament by the companies who are 
 
 asking for powers and privileges which the common law does 
 
 not give them. They take power to make a railway and other 
 
 works over the lands of other people, and that power is only 
 
 conceded to them upon the footing that it is for the benefit of 
 
 the public as well as themselves. This benefit they profess to 
 
 secure to the public by giving the use of the line to all comers, 
 
 or undertaking to carry their goods, upon payment of certain 
 
 charges or tolls. The nature and limits of these tolls and charges 
 
 they fix for themselves, and submit them to the legislature in their 
 
 bill expressed in their own language, and I think it is a fair 
 
 and reasonable thing to say to them, that by the language of 
 
 that bill, when it becomes law, they are strictly bound. 
 
 " If the language of their clauses, strictly construed, puts them 
 
 at any disadvantage in their dealings with the public which the 
 
 legislature did not intend, it is the fault of those who had the 
 
 opportunity of insisting upon language which would adequately 
 
 express that intention ; and they are asking courts of justice to 
 
 tread on dangerous ground, as it seems to me, when they seek to 
 
 supply a deficiency in the actual language of legislation by what 
 
 they assert to be a reasonable intendment to be inferred from the 
 
 probabilities of the case. It may well be that in dealing with the 
 
 legislature a charge, reasonable enough in itself in one direction, 
 
 was surrendered by the company in consideration of benefits 
 
 secured in lieu of it in some other direction ; and in this state of 
 
 things, unless the clauses as they stand do not admit of any 
 
 reasonable meaning at all, without the addition of something else 
 
 which has not been expressed, I think the rule hitherto established 
 
 and acted upon of giving effect to the language strictly construed, 
 
 and nothing more, is one that ought to be adhered to." (Lord 
 
 Penzance, in Pri/ce v. Mo)i))ioi(thslnre Ri/. Co., 49 L. J. Q,. B. (H. 
 
 L.) 130.) 
 
 191. A railway company from a place witliin to a
 
 182 THE LA W OF CARRIERS. 
 
 Art^'if/" P^^CG without the reahii, are subject to the same 
 
 liabilities at common law as a railway company who 
 
 carry only within the realm, and are, therefore, bound 
 to accept all goods which are reasonably tendered to 
 them for conveyance between those limits. ( Crouch v. 
 L. Sf N. W. Ry. Co., 23 L. J. 0. P. 7; anie, Chap. V. 
 Art. 55, p. 47.) 
 
 A railway company contracting by through booking 
 to carry goods from place to place, partly by railway 
 and j^artly by sea, may limit their liability as to the 
 carriage by sea (31 & 32 Vict. c. 119, s. 14; ante, 
 Art. 173, p. 164.) 
 
 192. A railway company who receive goods for 
 conveyance to a place beyond the limits of their own 
 line (in the absence of any special contract to the 
 contrary, and especially where they receive an entire 
 payment for the whole journey) impliedly undertake 
 the responsibility of the complete transit, and are, 
 therefore, not discharged of their liability by handing 
 over the goods to a second company for further con- 
 veyance, and are liable for a loss of or injury to the 
 goods although the same may not have happened on 
 their own line of railway. [Muschamp v. Lane. ^ 
 Preston Ry Co., 8 M. & W. 421 ; 10 L. J. Ex. 460; 
 Scotthorn v. South Staff. Rij. Co., 22 L. J. Ex. 121 ; 
 TF^^-^^r V. Gt. W. Rij. Co., 33 L. J. Ex. 170; Bris. ^ 
 Ex. Rij. Co. V. Cotlins, 29 L. J. Ex. 41 ; 7 H. L. Ca. 
 194.) 
 
 A railway company may, however, stipulate, at the 
 time they receive the goods, that they will not be
 
 THE TRANHIT OF THE GOODS ON THE RAILWAY. 183 
 
 liable for the loss of or dam a ore to ffoods destined to ^^^p- ^^• 
 
 ° ^ Art. 192. 
 
 places beyond their own line of railway after they 
 
 have delivered them over to another railway company 
 in the usual course of further conveyance. {Aldridge 
 V. Gt. W. Ry. Co., 38 L. J. C. P. 161 ; 15 C. B. (N. S.) 
 582 ; Foivles v. Gt. ^Y. llij. Co., 22 L. J. Ex. 76.) To 
 claim exemption under such a condition, it must be 
 proved that the goods passed into the custody of some 
 other railway comj^any who would be responsible 
 before they were lost or injured. {Kent v. Midland 
 Ry. Co., L. Pt. 10 Q. B. 1 ; 44 L. J. Q. B. 18.) 
 
 It is estimated that half the railway trajQfic of Great Britain is 
 carried hj means of through hooking, where the receiving and 
 contracting company undertake to carry goods over their own rail- 
 way and several other railways to the point of final destination, 
 using each company as an agent in fulfilment of the contract. 
 
 The real test of liability is w^ho was dominus itincris ? The cases 
 cited for the first proposition in this Article only decided that 
 where there was nothing said there was primd facie a hability on 
 the part of the company receiving the goods. This consequence 
 ensues whether the carriage be or be not prepaid ; or whether the 
 goods, after being carried some distance on the company's railway, 
 are transported for the remainder of the journey on the line of 
 another company or companies; or are forwarded by coach or 
 canal. {Hooper v. L. Sf W. W. Ry. Co., 50 L. J. Q. B. 103 ; 
 Burke v. S. E. Ry. Co., 5 C. P. D. 1.) It makes no difference 
 that the goods are directed by the sender to be sent part of the 
 way by sea, and by a different route to that which woidd have 
 been adopted if no such direction had been given. ( Wilhy v. Wed 
 Cor mean Ry. Co., 27 L. J. Ex. 121.) 
 
 "In our opinion, if a carrier contracts to convey to and deHver 
 goods at a particular place, his duty at that place is precisely the
 
 184 THE LA W OF CARRIERS. 
 
 Chap. XI. same ■whether his own conveyance goes the entire way or stops 
 
 '■ '- short at an intermediate place, and the goods are conveyed on hy 
 
 another carrier ; and that this carrier or his clerk at the place of 
 destination is the agent of the original carrier for all purposes 
 connected with the conveyance and delivery and dealing with the 
 goods to the same extent as his own clerk would have been at the 
 place where his own conveyance stops with regard to goods to be 
 there delivered." (From the judgment of the Court in Crouch v. 
 G. W. By. Co., 26 L. J. Ex. 418.) 
 
 In Shepherd v. Bristol and Exeter By. Co. (37 L. J. Ex. 113 ; 
 L. R. 8 Ex. 189), Martin, B., said: " When two railway companies 
 are connected in business together, so that one of them receives 
 goods to be conveyed over the line of the other, I think there is 
 but one contract, and that it is made between the customer and 
 the receiving railway company, and that their liability is just the 
 same as if they had been the owners of the railway the whole way 
 upon which the goods are to be conveyed. This I have understood 
 to be the law ever since Muschamp v. Lane. S^ Bres. By. Co., and 
 in my opinion it should be steadily adhered to." 
 
 Where goods are transferred from the original contracting 
 railway company, their liability continues if such transfer is only 
 accessory to the discharge of their own duty, or the terms of their 
 own contract. {3Iachu v. L. &f S. W. By. Co., 2 Ex. 415.) 
 
 Where goods are accepted by a railway company to be carried 
 to a place beyond their line, subject to special conditions, the 
 conditions apply throughout the whole distance. {Collins v. Brist. 
 and Ex. By. Co., 29 L. J. Ex. 41 ; 7 H. L. Ca. 264 ; Hall v. 
 N. E. By. Co., L. R. 10 Q. B. 437 ; 44 L. J. Q. B. 164.) 
 
 It has been recently held in America that the liability of a 
 common carrier ceases, in the absence of a special contract, when he 
 " seasonably " and safely delivers the goods to the succeeding carrier ; 
 that the giving of a through rate does not increase his liability, 
 nor the giving of a receipt showing that the goods were consigned 
 to a point beyond his line. [Goldsmith v. Chicago and Alton By. 
 Co., 12 Mo. App. 479.)
 
 THE TRANSIT OF THE GOODS ON THE RAILWAY. 185 
 
 The following decisions in the American Courts may here be Chap. xr. 
 
 . . T Art. 192. 
 
 noticed : — : 
 
 A railway company issuing through tickets beyond their own 
 line are liable for the safe transportation of the purchaser to his 
 destination, though the ticket contains a provision exempting the 
 company from liability beyond their own line. {Ccidral By. Co. 
 V. Combs, 70 Ga. 533 ; 48 Am. Rep. 582.) 
 
 A railway company cannot be compelled to give a consignment 
 note making them responsible for the goods beyond their own line. 
 [Lotspeich V. Central, ^'c. B;/. Co., 73 Ala. 306.) 
 
 A railway company receiving goods from a prior carrier 
 apparently in good order is not obliged to open the packages for 
 further examination. {K)ii(jht v. Brovidencc, ^"c. By. Co., 43 Am. 
 Rep. 46.) 
 
 In case of the carriage of goods by successive carriers, it must be 
 shown in an action to recover for damage to the goods against an 
 intermediate carrier, at least that the goods were in good condition 
 when delivered to the first carrier. To show that they were in 
 good condition when packed at the consignor's house before delivery 
 to the carrier for conveyance is not sufficient. [Lake Erie, 8^'c. By. 
 Co. V. Oakes, 11 111. 489 ; Marquette, 8fc. By. Co. v. lurkicood, 45 
 Mich. 51.) 
 
 Where goods have been carried by several successive carriers, and 
 it appears that they are in good condition when delivered to the 
 first carrier, the jury may, in the absence of evidence to the con- 
 trary, presume that the goods reached the hands of the last carrier 
 in good condition. {Leo v. St. Paul, 3^c. By. Co., 30 Minn. 438 ; 
 Central By. Co. v. Bogers, 66 Gra. 251.) 
 
 193. The carrying' railway company, so far as 
 concerns their own line (including a line over wliicli 
 running powers are exercised) and their own acts or 
 omissions, are under same obligations in reference to 
 the safety of the goods carried, as they would have
 
 186 THE LAW OF CARRIERS. 
 
 Chap. XI. been if they had directly contracted for the carriao^e of 
 
 Art. 193. J J r^ 
 
 such goods. (Foulkes v. 3Ief. Dist. R?j. Co.^ 5 C. P. D. 
 
 157; 49 L. J. C. P. 361 ; Hooper v. L. ^ N. W. Ry. 
 Co., 50 L. J. C. P. 153.) 
 
 In the latter case Lindley, J., said, " The plaintiff, no doubt, 
 entered into an express contract with the Great Western Railway 
 Company to carry him and his luggage to Euston ; at Birming- 
 ham it was transferred into the van of the defendant company. 
 Whether there would be an implied contract with the defendant 
 company may be a question of difficulty, but, as a matter of fact, 
 the portmanteau was lawfully in their charge, and the fact of its 
 not forthcoming at Euston involves the default of some one of the 
 defendants' servants. The defendant company, having received 
 the portmanteau, are responsible for its loss, in accordance mth the 
 principle of Fonlhes v. Met. Dist. Ry. Co.^^ ; and Denman, J., said, 
 " The doctrine laid down in Foiilkcs v. T/ie Met. Ry. Co., namely, 
 that there is a duty omng by a railway company towards the pas- 
 sengers they are carrjdng, would apply to goods."
 
 ( 187 ) 
 
 CHAPTER XII. 
 
 THE OBLIGATIONS OF A RAILWAY COMPANY WITH RESPECT TO 
 THE DELIVERY OF THE GOODS TO THE CONSIGNEE («). 
 
 Articles. 
 
 1. Carrying the Goods hy the shortest Route 194 
 
 2. Delivery of the Goods within a reasonable Time 195 — 198 
 
 3. Measure of Damages for Delay in Delivery 199 
 
 4. Measure of Damages for Loss or Deterioration of the 
 
 Goods 200 
 
 5. Station Master Agent of the Company to deliver Goods. 201 
 
 6. Countermand of the Place where Goods are to he 
 
 delivered 202 
 
 7. Notice to the Consignee of the Arrival of the Goods .... 203 
 
 8. Company not bound to make a Personal Delivery of the 
 
 Goods 204 
 
 9. Delivery of Goods sent at a Collection and Delivery 
 
 Rate 205 
 
 10. Company bound to keep Goods a reasonable Time for the 
 
 Consignee to claim them in , .... 206 
 
 11. Liability of the Company as to Goods left on their 
 
 LLands 207, 208 
 
 12. Duty of the Company on Refusal of the Consignee to 
 
 pay the Carriage 209 
 
 13. Duty of the Consignee to examine the Goods 210 
 
 14. Consignee assisting Company^ s Servants in Delivery, ... 211 
 
 («) In connection with this Chapter reference should be made to Cliaptcr VII. 
 (ante, p. 79), on "the obligations of a common carrier with reference to the delivery 
 of the goods to the consignee, and the termination of the earner's liability," as 
 being applicable to a great extent to the carriage of goods by railway.
 
 188 THE LAW OF CARRIERS. 
 
 Chap. XII. 194. A railway company, in the absence of an 
 
 Aft. 1B4, 
 
 express contract, are not bound to carry goods by the 
 
 shortest route, but only by the route by which they 
 usually carry them, and which they profess to go, 
 and which is a reasonable route. (3I//crs v. L. &c S. W. 
 Ry. Co., L. R. 5 C. P. 3 ; 39 L. J. C. P. 57. See ante, 
 Chap. VII. Art. 92.) 
 
 In Davis v. Garratt (6 Bing. 725), Tindal, C. J., uses the words 
 " without unnecessary deviation " in describing the duties of carriers, 
 which imply that deviation is sometimes justifiable. 
 
 In Myers'' case the goods in question were collected from the 
 plaintiff's premises at Southampton by the defendants to be carried 
 by them as common carriers, and to be delivered according to the 
 direction, which was " Luton to order, via Great Northern." The 
 goods were conveyed in the same truck, without unloading, on the 
 defendants' railway from Southampton, through Clapham Junction, 
 on to Nine Elms, where the defendants have a large goods station, 
 from thence back to Clapham Junction, from Clapham Junction to 
 Blackfriars on the London, Chatham and Dover Railway, from 
 Blackfriars to Kings Cross on the Metropolitan and Grreat Northern 
 Railways, and from Kings Cross to Luton by the Great Northern 
 Railway. It was contended on behalf of the plaintiff that the 
 defendants were not entitled to charge for the distance between 
 Clapham Junction and Nine Elms and back. Willes, J., in 
 delivering judgment, said, " In the old coach days, two coaches 
 often travelled between the same two towns by different routes, 
 one longer than the other, and I apprehend that if the Act now 
 under discussion had applied to such coaches they would each have 
 been entitled to charge for the distance they actually went. So 
 the South Eastern Railway Company, who have made a new and 
 shorter line through Sevenoaks might keep that for passenger 
 traffic, and use their old line for the carriage of goods, and might 
 charge for the longer distance, which they would thus actually 
 carry them."
 
 THE DELIVERY OF THE GOODS BY THE BAILWAY COMPANY 189 
 
 Where the contract gives the carrier an option between modes Chap. xil. 
 
 . . . , Art. 194. 
 
 of transportation, the option must be exercised with a view to the 
 
 owner's interest. {Blitz v. Union S. S. Co., 51 Mich. 558.) 
 
 196. A railway company undertaking to carry goods 
 from A. to B., must deliver them within a reasonable 
 time, having reference to the means at their disposal 
 for forwarding them ; and they are not justified in 
 delaying the delivery by adopting a particular mode 
 of forwarding the goods merely because that is the 
 usual mode adopted. (Hales v. L. cV N. W. Rij. Co., 
 32 L. J. Q. B. 292; 4 B. & S. G6.) 
 
 Cockbiirn, 0. J., in delivering judgment, said, " If it were 
 necessary to lay down any rule as to what should be the law in 
 such cases, where no time is mentioned as to the carrying, the 
 obligation of the carrier is to convey within a reasonable period ; 
 but the party who sends is not entitled to call upon the carrier to 
 go out of his ordinary accustomed course, or to have recourse to 
 extraordinary means of despatch for the conveyance of the goods ; 
 but he is entitled to expect that the carrier will do, not that which 
 is unusual, but that which is within his means and power for the 
 purpose of transmitting the goods." And Blackburn, J. : "I think 
 that the carrier is bound to carry according to the course which he 
 professes ; and as stated in Johnson v. Midland Ry. Co. (18 L. J. 
 Ex. 366), his obligation depends on what his conduct professes. 
 I think he is bound to carry by the route which he holds forth, 
 and which he professes to be his route ; and when he carries goods 
 by that route, he is bound to deliver in a reasonable time, having 
 of course reference to the route by which he is carrying. I think 
 it is no breach on the part of the carrier if he does not carry by a 
 shorter route, if that shorter route is not the route which he pro- 
 fesses to follow. If the customer wishes to go by some other route 
 he should ask ; and then he can choose whether he will send by 
 the carrier, or make a special bargain. But when he sends by the
 
 190 THE LAW OF CARRIERS. 
 
 Chap. XII. usual route, the carrier must use reasonable dilisrence ; and whetlier 
 Art 195 
 '■ '- tie has done so or not is a question of fact for the jury." 
 
 In America it has been held in respect to the liability of a 
 
 railway company for delay in transportation and delivery of goods 
 
 that all that can be required of the company is the exercise of due 
 
 care to forward and deliver promptly ; and that there is no absolute 
 
 duty resting upon a carrier by railway to deliver goods within 
 
 what is, under ordinary circumstances, a reasonable time. 
 
 {Grcmner v. Lake Shore, ^'c. By. Co., 26 A. & E. Ey. Ca. 
 
 287 ; Wibo't v. N. Y. ^' Erie E>j. Co., 12 N. T. 245, and 20 
 
 N. Y. 48. See7;o.sf, Art. 290.) 
 
 196. If a railway company make no special con- 
 tract to deliver in any particular time, they are not 
 liable for delay in the conveyance of the goods caused 
 by a sudden and unusual press of business not known 
 to the railway company at the time tliey received the 
 goods for carriage ; the company having a reasonable 
 equipment for all ordinary purposes, and the goods 
 being carried with as much expedition as is practicable 
 under the circumstances. ( Wibert v. A^. Y. ^ Erie Ry. 
 Co., 19 Barb. 36 ; 2 Kernan, 245 ; Houston and Texas 
 Central By. Co. v. Smith, 22 A. & E. Ey. Ca. 421, 427. 
 Ante, Art. 156, p. 132.) 
 
 Although these are American decisions it is submitted that the 
 rule is the same in this country. If the pressure of traffic is such 
 as the company might reasonably have anticipated and provided 
 for, it is assumed they would not be released fi'om the hability to 
 receive goods on the ground of want of convenience. 
 
 "Where there is a " blockade of freight," goods should be 
 forwarded in the order of time in which they are received by the 
 railway company for transportation. {Page v. Gt. N. Ry. Co.,
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 191 
 
 2 Ir. Eep. C. L. 288 ; Acheson v. N. Y. &^ Central Ry. Co., 61 Chap. xii. 
 
 Art. 196. 
 
 N. Y. 52.) -_ 
 
 " Where there is a blockade of freight well known to the rail- 
 way company at the time they receive the goods for transportation, 
 there is some doubt whether the company is liable for a delay in 
 case it receives the goods without notifying the consignor of the 
 blockade. Some cases hold that the railway company must give 
 notice to shippers of facts within their knowledge likely to cause 
 delay, and in case of failure so to do, assume the responsibility 
 of transporting the goods within the usual time." Judgment in 
 Houston, 8^c. li//. Co. V. Sniit//, siqjnc. 
 
 197. In the absence of special agreement there is 
 no implied contract on the part of a railway company 
 to deliver with punctuality, but the contract is to 
 carry and deliver within a time which is reasonable, 
 having regard to all the circumstances, and the rail- 
 way company are not responsible for the consequences 
 of delay arising from causes beyond tlieii' control. 
 (Tai/Ior V. G. N. Ihj. Co., L. E. 1 C. P. 385 ; 35 L. J. 
 C. P. 210 ; see ante, Chap. VII. Art. 07.) 
 
 In Raphael v. Fichfonl (5 M. & a. 588) Tindal, 0. J., says, 
 " The duty to deliver within a reasonable time being merely a 
 term ingrafted by legal application ujDon a promise or duty to 
 deliver generally." In Briddon v. G. N. Ry. Co. (28 L. J. 
 Ex. 51), it was held that the railway company were not liable 
 for delay arising from a snow storm. " We consider that al- 
 though, theoretically, the rights of the pubHc in the use of 
 railways cannot be completely assui'ed unless the traffic which is 
 conveyed at defined rates is to be delivered within a definite time, 
 on the whole the public will be better served by adhering to the 
 present rule, that the delivery is to take place within a reasonable 
 time, leaving the question of what is reasonable to be decided by a
 
 192 THE LA W OF CARRIERS. 
 
 Chap XII. court of law. We see tlie less objection to this as the County 
 ■ Court affords facilities, and is largely resorted to for this purpose 
 
 at the jDresent time." Report of Eoyal Commission on Railways, 
 
 1867. 
 
 198. A contract by a railway company to carry 
 goods by a given train "which ordinarily arrives at a 
 particular place at a particular hour, does not amount 
 to a warranty that it will so arrive, although the 
 company's servants be informed that the object of the 
 sender requires that it should so arrive. [Lord v. 3Iicl- 
 landRij. Co., L. R. 2 C. P. 339; 36 L. J. C. P. 170.) 
 
 Willes, J., in delivering judgment, said, " It is only reasonable 
 that the company should say that they would not be liable for 
 any extraordinary damage, such as that arising by loss of market. 
 The loss of the market is not like the loss of the season ( Wilson v. 
 Lancaxliirc ^' York.s/iirc Ry. Co., 30 L. J. C. P. 232) ; it is an 
 extraordinary loss, and depends on the arrival of the goods at a 
 particular hour, and the company would not be liable for such loss 
 unless they had notice of the purpose for which the goods were 
 sent by them, and then, having such notice, it is very reasonable 
 for them to say, ' We will not be answerable for such loss.' A 
 case may be put of a person having a valuable appointment in 
 India, who chooses to start by the last train, and then, because of 
 some delay in the train he might fail to catch the steamer, and so 
 claim to be compensated for a loss in the receipt of an income of 
 several thousand pounds a year because he did not arrive in India 
 in proper time." 
 
 In that case meat was carried by the defendants for the plaintiff 
 under a consignment note on the back of which was printed the 
 conditions upon which it was carried, one of which was as 
 follows: — "The company will not be responsible for any damage to 
 any meat, on the ground of loss of market, provided the same be 
 delivered within a reasonable time after the arrival thereof at the
 
 THE DELIVERY OF THE GOODS BY TEE RAILWAY COMPANY. 193 
 
 station from whence delivery is made," and this was held to be a Chap. xii. 
 
 Art 198 
 reasonable condition. '- '-. 
 
 Bovill, C. J., in delivering judgment, said, "I have no doubt it 
 was the wish and expectation of the plaintiffs, and also of the com- 
 pany, that the meat would arrive in time for market. But there 
 was no contract that it should arrive by that time. It is common 
 knowledge that extraordinary efforts are made on the part of rail- 
 way companies to attain perfect regularity and exactness in the 
 departure and arrival of trains. But, so far as concerns passenger 
 trains, the companies almost invariably protect themselves against 
 the consequences of any irregularity, by inserting notices in their 
 time-tables that they do not warrant that the trains will arrive and 
 depart at the precise times indicated. . . The condition now 
 before us does not profess to absolve the company from all liability 
 in respect of the carriage of goods of a particular kind, but only to 
 relieve them from the consequences of loss of market. In my 
 judgment, it is competent to railway companies or other common 
 carriers to say that they will decline to carry particular goods, 
 except upon condition that they shall not be liable for the loss of 
 market. There is nothing unreasonable in that. The charge for 
 carriage would be regulated accordingly. To hold otherwise 
 might involve railway companies in consequences most ruinous." 
 
 199. A railway company are liable for an un- 
 reasonable delay in the delivery of the goods, and the 
 measm-e of damages is in general to be based upon 
 the value of the goods at the place and time at which 
 they ought to have been delivered. [Rice v. Baxendale^ 
 SOL. J. Ex. 371.) 
 
 The value of the goods at the place and time ap- 
 pointed for delivery is ascertained by the market 
 price, if there be a market for such goods ; but if there 
 be no market price, the value at the time and place 
 
 M. o
 
 194 THE LAW OF CARRIERS. ' 
 
 Chap. XII. must be ascertained as a matter of fact by the circum- 
 
 Art. 199. . . "^ 
 
 ■ stances ; thus in the case of goods intended for com- 
 merce the value at the place of destination, where 
 there is no market for such goods, may be estimated 
 to include a reasonable profit to the importer beyond 
 the cost price and cost of carriage. [0''HanlonY. G. W. 
 Rij. Co., 34 L. J. Q. B. 154.) 
 
 Therefore, the consignee may recover damages for 
 a fall in the market price during the interval of delay. 
 {Collard V. S. E. Ry. Co., 30 L. J. Ex. 393, i->ost, 
 p. 195.) 
 
 And in the case of goods of which the price varies 
 with the season he may recover damages for losing 
 the season for selling by delay in delivery. ( Wilson 
 V. Lane. 6r York. Rij. Co., 30 L. J. C. P. 232, 2^ost, 
 p. 195.) 
 
 The railway company are further resjionsible for all 
 such damages as may reasonably be taken to have 
 been in the contemplation of both parties, as a conse- 
 quence of a default in the carriage and delivery of the 
 goods, at the time of giving and receiving them for 
 carriage. (Leake on Contracts, p. 1067.) 
 
 ''Whenever either the object of the sender is 
 specially brought to the notice of the carrier, or cir- 
 cumstances are known to the carrier from which the 
 object ought in reason to be inferred, so that the 
 object may be taken to have been within the contem- 
 j^lation of both j^arties, damages may be recovered for 
 the natural consequences of the failure of that object." 
 (Per Cockburn, C. J., in Simpson v. L. 6f N. W. Ry. 
 Co., 1 Q. B. D. 274; 45 L. J. Q. B. 182.) 
 
 But damages that could not reasonably be contem-
 
 THE DELIVERY OF THE GOODS BY THE EAILWA Y COMPANY. 195 
 
 plated by both tlie parties as the consequence of a chap.xii. 
 
 . . Art. 199. 
 
 default in delivery are not recoverable. [Iladley v. 
 
 Baxenclale, 23 L. J. Ex. 179, post, p. 199 ; Hammond v. 
 Bussejj, 67 L. J. Q. B. D. 58 ; Gee v. Lane. 6j^ York. 
 Ry. Co., 30 L. J. Ex. 11 ; 6 H. & N. 211 ; Wilson 
 V. Lane. ^^ York. Ry. Co., 30 L. J. C. P. 232; 
 Redmayne v. G. W. Ry. Co., L. li. 1 C. P. 329, ^^^st, 
 p. 199.) 
 
 If the railway company or their servant (within the scope of his 
 employment and duty) enter into any special contract to deliver in 
 any particular time or place, even beyond the terminus of theii' 
 particular route, it will be binding, and the owner, it would seem, 
 may recover damages, with reference to expected profits, had the 
 goods been delivered in time. [Wilson v. York, Heircnsfh, and 
 Berwick Rij. Co., 18 L. J. Q. B. 557 ; Hughes v. G. W. Ry. Co., 
 25 L. J. Q. B. 347.) 
 
 In Wilson v. Lnnc. 8f York. Ry. Co. (30 L. J. C. P. 232), 
 Willes, J., said : " The damage in respect of the goods being 
 depreciated in value in consequence of their arrival at a time when 
 they were less in demand and less capable of being applied usefully 
 by the plaintiff, is the ordinary, natural, and immediate consequence 
 of the delay, for which the carrier is answerable." 
 
 In Collard v. 8. E. Ry. Co. (30 L. J. Ex. 393), the defendants 
 had no notice that the goods were sent for sale ; but Martin, B., 
 said : "It was proved that if they had been brought to market on 
 the proper day they would have fetched a certain price, but, not 
 being brought until a later day, the market price in the meantime 
 fell, and the value of the hops was diminished by the amount of 
 65/. If that be not a direct, immediate and necessary consequence 
 of the defendants' breach of duty, it is difficult to understand what 
 would be "; and therefore the plaintiff was held entitled to recover 
 as damages the difference between the market value on the day the 
 goods ought to have been brought to market, and the day on which 
 
 o2
 
 J96 THE LAW OF CARRIERS. 
 
 Chap, XII. they are afterwards brought to market, although no notice be given 
 
 ^^ — '. \ to the carrier that the goods are intended for market. (See 
 
 Simpson V. L. 8^ N. W. Ry. Co., 45 L. J. Q. B. D. 182 ; 1 Q. 
 B. D. 274.) 
 
 Two consignments of fish for transport by special train and 
 tidal boat from London rid Folkestone to Boulogne, were made to 
 a railway company, who advertised special trains and boats at 
 special rates, subject to the conditions contained in their tables. 
 One of these conditions was that the company would not be answer- 
 able for loss occasioned by the trains or boats not starting or 
 arriving at the time specified ; and another, that the boats started 
 " wind, weather, and tide permitting." In each case, on arrival at 
 Folkestone, it was found that it was not prudent to load the fish on 
 the tidal boat, owing to the state of the weather, and the fish had 
 to be sent in the cargo boat, in consequence of which the Paris 
 train at Boulogne was missed, the fish delayed for twenty-four 
 hours, and deteriorated, besides losing the market ; it was held that 
 there was no absolute guaranty they would go by that particular 
 train and boat, but that it was for the jury to say whether under 
 the circumstances the railway company had been guilty of negli- 
 gence, or whether they had substantially fulfilled their contract, 
 and also that in estimating the damages, the loss of the market in 
 Paris by the non-arrival of the fish at Boulogne in time to catch 
 the train for Paris was not to be taken into account. [Haiccs ^ 
 Son V. 8. E. Ry. Co., 54 L. J. Q. B. D. 174.) 
 
 A manufacturer forwarded a bale of cloth by railway consigned 
 to a shipping agent at Grrimsby, who was to ship it for Grermany. 
 On arrival at Grimsby the package was found to be frayed, and 
 some slight damage done to the cloth. The shipping agent refused 
 to take delivery, being of opinion that the goods could not be 
 safely forwarded in their damaged package. The railway com- 
 pany thereupon returned them to the manufacturer, who repacked 
 them and forwarded them to Grermany. On arrival there they 
 were rejected as beiug too late. The manufacturer having sued 
 the railway company for damages for loss of market, it was held
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 197 
 
 by the Court of Session that the loss of market was the direct Chap. xil. 
 
 Art 199 
 
 result of the damage done to the package by the railway company, " 
 who were therefore liable for it, {Kcdilie, Gordon &f Co. v. JSforth 
 British El/. Co., 14 Sess. Ca. (4th Ser.) 233.) 
 
 As regards perishable goods, however, destined for a particular 
 market, there may, in certain circumstances, considering the facili- 
 ties of railway traffic, the obligations imposed by the Traffic Act, 
 1854, and the certainty with which times of transit may now be 
 calculated, arise an implied obligation to deliver in time for that 
 particular market. (See ^^osf, Art. 234 ; Bates v. Cameron 8f Co., 
 28 Jur. 77 ; Finiay v. iV. Brit Ey. Co., 8 Sess. Ca. (3 Ser.) 9o9 ; 
 per Lord President, 970.) Such matters, however, are generally 
 made the subject of special contract. 
 
 In the case of The Nottinrj Jlill (9 P. D. 105), it was held that 
 loss of market was too remote a consequence to be considered as an 
 element of damage. 
 
 In Candy v. Midland Ey. Co. (31 L. T. 226), it was held that 
 merely labelling a box " Travellers' goods, deliver immediately," 
 was not sufficient notice to in any way affect the company with 
 special notice of the facts, so as to make particular damages reco- 
 verable against them. 
 
 In Jameson v. Midland Ey. Co. (50 L. T. 426), the plaintiff de- 
 livered a parcel at the receiving office of the defendants in London, 
 addressed to " W. H. Moore & Co., Stand 23, Show-ground, 
 Lichfield, Staffordshire, van train." Nothing was said by the 
 person who delivered the parcel at the receiving office as to the 
 purpose for which it was being sent to Lichfield, or to draw atten- 
 tion to the label ; and it was held that the label was sufficient 
 notice to the defendants that the goods were being sent to a show, 
 and that the plaintiffs were entitled to recover damages for loss of 
 profits and expenses incurred by the goods being delayed and not 
 delivered at Lichfield in time for the show. 
 
 In Woodger v. G. W. Ey. Co. (L. E. 2 C. P. 318; 36 L. J. C. P. 
 177), a commercial traveller delivered a parcel of samples to the 
 railway company to be carried to A., but did not state the con- 
 tents of the parcel or the purpose for which it was required. By
 
 198 THE LAW OF CARRIERS. 
 
 Chap. XII. the negligence of the railway company the parcel was delayed, 
 
 ' and the traveller sj)ent three days at A. unemployed, waiting for 
 
 it. In an action for negligence it was held that the hotel expenses 
 
 of the traveller during the time he was waiting for the parcel 
 
 could not be recovered as damages, being too remote. 
 
 In Hales v. L. S^ N. W. Rij. Co. (32 L. J. Q. B. 292 ; 4 B. & 
 S. 66), expenses incurred in inquiring for goods were held recover- 
 able, but not loss of hire caused by their not arriving by the day 
 for which they were hired. 
 
 In Eonw v. Midland By. Co. (L. R. 8 0. P. 131 ; 42 L. J. 0. P. 
 59), the plaintiffs delivered goods to the railway company at 
 Kettering, and directed that they should be delivered to Messrs. 
 Hickson, in London, on the 3rd of February, and further intimated 
 that they should be delivered then as otherwise they would be 
 thrown back on their hands. And the goods not having been 
 then delivered, and ha^-ing been thrown back on the plaintiffs' 
 hands, the question was, what was to be the measure of damages? 
 Kelly, C. B., in delivering judgment, said: " On the one hand the 
 company has no power to say they will not accept the goods 
 unless an extra charge for carriage be paid, nor on the other has 
 the consignor power to compel them to accept an additional 
 remuneration and liability. Neither can impose such a contract 
 on the other. In the absence of an express contract, I cannot see 
 how a notice that the damage will be large can create a contract 
 making the company liable for it." Blackburn, J., in his 
 judgment, said: "If there be a contract to carry goods and they be 
 lost, the caiTier ordinarily must pay their value, though it may 
 be more than he anticipated ; whilst there is no doubt, on the other 
 hand, that if the damage be such as would not ordinarily be expected, 
 it is not recoverable if notice be not given at the time of the 
 contract. If notice of special damage be given it may be that it 
 would be in some cases evidence of a contract to bear the loss, and 
 if such a contract be made of course it binds. But here, even if 
 there be notice, there is no special contract : the contract is to carry 
 and deliver within a reasonable time, with notice to deliver on 3rd 
 of February .... Now comes a question on which I speak
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 199 
 
 with reserve. In Hadley v. Baxendale (23 L. J. Ex. 179), it is Chap. xii. 
 
 Art 1Q9 
 
 said that if special notice be given the damage is recoverable, " 
 though there be no special contract, and this has been repeated in 
 various cases, but it is noticeable that there seems to be no case 
 where it has been held that if notice be given abnormal damages 
 may be recovered ; and I should be inclined to agree with my 
 brother Martin that they cannot unless there be a contract. But 
 it is not necessary to decide this question, because here in fact 
 there was no such notice, the notice here given conveys full 
 information that the day is of consequence, and that the goods 
 should be delivered on the 3rd of February if the defendants 
 could; from which a contract of sale on which there was a profit 
 might be inferred, but there was no notice that the defendants 
 would have to pay the amount of loss claimed. Therefore it is 
 not necessary to decide whether the dictum in Hadley v, Baxendale 
 is law, though I confess that at present I think it a mistake." 
 Lush, J., and Pigott, B., did not agree with the majority of the 
 Court, and thought that the plaintiffs were entitled to recover what 
 they had lost. 
 
 In Redmayne v. G. W. By. Co. (L. E. 1 C. P. 329), the plaintiff 
 sent goods from Manchester by the defendants' railway to his 
 traveller at Cardiff ; the delivery of the goods was, through the 
 negligence of the defendants, delayed until after the traveller had 
 left Cardiff, and the plaintiff, in consequence, lost the profits which 
 he would have derived from a sale at Cardiff ; and it was held that 
 in the absence of notice to the defendants of the object for which 
 the goods were sent, the plaintiff could not recover from them such 
 profits as damages for the delay, 
 
 A railway company having negligently failed to deliver a parcel 
 which to the knowledge of the company contained samples until 
 the season at which the samples could be used for procuring orders 
 had passed, so that the samples had become valueless, is liable in 
 damages for the value of the samples at the time when they should 
 have been delivered. {Sc/iulze v. G. E. By. Co., 19 Q. B. D. 30 ; 
 56 L. J. Q. B. 442.)
 
 200 THE LAW OF CARRIERS. 
 
 Chap. XII. Groocis consigned to B. & Co. were carried bj a railway company 
 ' at the owner's risk rate, the contract containing a condition that 
 
 the company were not to he liable for loss, damage, or delay, 
 except upon proof that such loss, damage, or delay arose from 
 wilful misconduct on the part of the company's servants. The 
 goods were delivered to another firm, and, on being found, were 
 tendered to the consignees, who refused to accept them ; and it was 
 held that, in the absence of evidence on the part of the plaintiffs as 
 to the cause of the mis-delivery, it did not amount to wilful mis- 
 conduct so as to render the defendants liable. {Stevens v. G. W. Ey. 
 Co., 52 L. T. 324.) 
 
 When the mark upon goods in tlie hands of a common carrier 
 differs from the way bill, the carrier is justified in exercising 
 caution in delivering the goods ; and it is a question for the jury 
 whether the delay is reasonable. Detaining beef for five days 
 under such circumstances was held reasonable. {Baltimore, ^'c. 
 My. Co. V. Pamphrey, 59 Md. 390.) It is submitted that the address 
 or direction upon the goods determine the place of their delivery, 
 and if through the mistake of the consignor (who is the consignee's 
 agent for this purpose) in addressing or directing the goods they are 
 mis-delivered or non-delivered, neither the consignor nor the 
 consignee can maintain an action against the railway company. 
 (See per Lord Denman, C. J., in Symes v. Chaplain, 5 A. & E. 
 642.) It is further submitted that there is no duty cast upon 
 carriers to communicate with the consignor or the consignee when 
 there appears to be a discrepancy between the consignment note 
 and the address upon the goods consigned. 
 
 200. Where goods are entrusted to a railway com- 
 pany for conveyance, and they are lost or delivered 
 in such a condition as to be valueless, the owner is 
 entitled to recover their value. 
 
 If such goods consist of articles of commerce, the 
 amount recoverable is the market value of the goods
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 201 
 
 at the place to which they were consigned [Rice v. chap. xii. 
 
 T T -f—i \ 1 • 1 1 Art. 200. 
 
 Baxendale, 30 L. J. Ex. 371) at the time they ought to 
 
 have reached their destination (^Brandt v. Boivlhy^ 2 
 B. & Ad. 932), first deducting from the amount the 
 price of the carriage, unless it has been paid in 
 advance. 
 
 If the goods are only partially destroyed, or are 
 deteriorated in quality, the damage recoverable is the 
 difference in their value if they had been delivered 
 sound at their destination and their value as it was at 
 the time, j)l^ce and condition in which they were 
 actually delivered. (Collard y. S. E. Rfj. Co.^ 30 L. J. 
 Ex. 393.) 
 
 If from the smallness of the place, or the scarcity of the article, 
 or other reasons, there is no market price, the real value at the time 
 and place must be ascertained, as a fact, by the jury, taking into 
 consideration the circumstances which would otherwise have in- 
 fluenced the market price if there had been one — price at the place 
 of manufacture, cost of carriage, and a reasonable sum for im- 
 porter's profit. {O'llanlan v. G. W. By. Co., 34 L. J. Q. B. 154.) 
 
 Wherever the owner or consignor represents the goods to be of 
 a particular value, he will not be permitted, in case of a loss, to 
 recover from the carrier any amount beyond that value. {Batson 
 V. Do)wva)i, 4 B. & A. 21 ; Bilei/ v. Home, 5 Bing. 217; C///c. v. 
 Aur. Bi/. Co., 19 111. 578.) 
 
 In an action by the plaintiffs, alleging that they caused to be 
 delivered to the defendants, as common carriers, a parcel of goods 
 for carriage, and that the goods were lost by the careless conduct 
 of the defendants, the defendants having paid a sum of 12/. 3«. 4f/. 
 into Court, which was accepted by the plaintiffs, it was held that 
 the action was " founded on contract " witliiu the meaning of the 
 County Courts Act, 1867, s. 5, and that the plaintiffs were not
 
 202 THE LA W OF CARRIERS. 
 
 Chap, XII. entitled to costs. (Fleminrj v. ITan., Shef. 8c Lin. Ry. Co., 4 Q. B. 
 
 Art 200 
 
 Z_ll D. 81. And see Pontifex v. Midland Eij. Co., 3 Q. B. D. 23 ; 47 
 L. J. a. B. 28.) 
 
 201. The station-master is agent for the railway- 
 company to deliver goods, and if he assents to some 
 other mode of delivery than the usual one he will bind 
 the company thereby. (Per Field, J., in Wright v. L. 
 6f N. W. R?j. Co., 44 L. J. Q. B. 120.) 
 
 If goods are brought by mistake, and without right, 
 and delivered at a railway station, the station-master 
 has no right to detain them, after demand by the 
 owner and the tender of any reasonable expenses due 
 upon them. (Boo/ce v. Midland Rij. Co., 16 Jur. 1069.) 
 
 In that ease the station-master said, in answer to a demand of 
 some goods, " The goods were brought to our station by an inter- 
 mediate line, which has no right to send goods here, and I shall 
 send them back ;" and it was held that the railway company were 
 Hable for the conversion of the goods. But in order to fix the 
 company, it must be shown that the wrongful act was done by 
 some person acting for them within the scope of his authority. 
 {Clover V. L. 4- N. W. R>j. Co., 5 Ex. 66.) 
 
 202. Where goods are delivered to a railway com- 
 joany, to be delivered at a particular place, the owner 
 of the goods may countermand the direction at any 
 moment of their transit, and require the railway com- 
 pany to deliver at a different destination to that origi- 
 nally named; and in such a case the railway company 
 are bound to do so, and are liable for a loss occasioned 
 by their not obeying the instructions given to them. 
 
 Such a person may demand back his goods, on pay-
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 203 
 
 ment of the carriaore to their orio^lnal clestmation, chap. xii. 
 
 unless, perhaps, when the unpacking and redelivering 
 them would be productive of much inconvenience. 
 (Scotthorn v. South Staffordshire Ry. Co., 22 L. J. Ex. 
 121 ; 8 Exch. 341 ; Reg. v. Frere, 24 L. J. M. C. 68.) 
 
 In the case of ScottJioni v. SoutJi. Staffordshire Ry. Co., supra, the 
 plaintiff delivered at a station of that company certain goods 
 addressed to the East India Docks, London, and paid one sum for 
 their carriage the whole distance. By the practice of that railway 
 company, all goods dehvered at that station for London are for- 
 warded on their own line to Birmingham, and from thence by the 
 London and North Western Eailway. Before the goods in ques- 
 tion arrived in London, the plaintiff directed a clerk at the London 
 station of the latter company to forward them to another place, 
 which the clerk promised to do. The goods were, however, 
 delivered according to the original address, and thereby lost, and 
 it was held that the South Staffordshire Railway Comjoany were 
 responsible for the loss. 
 
 Piatt, B., in delivering judgment, said, "If a carrier undertakes 
 to carry goods from A. to B., he does so subject to a right in the 
 owner to countermand the direction at any point of the journey, 
 and though he may be bound to pay the carrier for his trouble, yet 
 the latter has no right to carry them further against the will of 
 the ouner of the goods." 
 
 And Martin, B., said, "A carrier is employed as a bailee of 
 another's goods, to obey his directions respecting them ; and I 
 have no hesitation in saying that, generally, at any period of the 
 transit he may have them back. It may, indeed, be different when 
 the subsequent direction to the bailee is unreasonable. I can con- 
 ceive a case where goods having been put into a place from which 
 they could not be removed without the greatest inconvenience, the 
 carrier would be entitled to refuse to deliver them up before the 
 end of the journey." 
 
 When goods are delivered by a consignor to a railway company 
 
 Art. 202.
 
 204 THE LAW OF CABBIERS. 
 
 Chap. XII. to be conveyed to a certain place, with the added words, "for 
 Art 202 
 
 ■ L Messrs. & Co.," these persons thus appearing to be the con- 
 
 signees of the goods, may demand them of the railway company 
 at another place ; and if on such demand, and on receiving pay- 
 ment for the carriage, the railway company (who have not received 
 from the consignor any special communication on the subject of 
 the place of delivery) deliver them up to the consignees, they will 
 not be responsible to the consignor for any damages which may 
 arise to the consignor from such delivery. [Cork Bi.sfi/kn'es Co. v. 
 Gf. Southern 8f Western Rij. Co. [Ireland), L. E. 7 H. L. 269; 8 
 Ir. E. C. L. 334.) 
 
 It was held in L. N. W. B>f. Co. v. Bartlett (31 L. J. Ex. 92 ; 
 7 H. & N. 400), that although the consignor of goods directs a 
 carrier to deliver them to the consignee at a particular place, the 
 carrier may deliver them wherever he and the consignee agree. 
 But from the above decision in the House of Lords, it appears that 
 if there had been a special contract between the consignor and the 
 carrier it would have been different. 
 
 In Bartlett''s Case, Bramwell, B., said it would " probably create 
 a laugh anywhere except in a Court of law, if it was said a carrier 
 could not deliver to the consignee short of the particular place 
 specified by the consignor. The obvious meaning of the contract 
 is to deliver to the consignee at the place mentioned, unless the 
 consignee chooses, and the carrier is willing that they shall be 
 delivered somewhere else." (See also Batterirorth v. Broicnloic, 34 
 L. J. C. P. 266.) 
 
 If one railway company receives goods to carry part of the way, 
 and then transfers them to another company to carry to the place 
 of destination, the agents of the latter company are agents of the 
 first company for receiving notice of countermand ; and if they 
 receive such notice and pay no attention to it, the first company is 
 responsible for the neglect. [Scotthorn v. South Staff. By. Co., ante^ 
 p. 203 ; Crouch v. G. W. By. Co., 27 L. J. Ex. 345.) 
 
 Where goods are left with a common carrier to be delivered to 
 the consignee without any qualification or restriction, the consignor
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 205 
 
 parts with the .floods and all control over them, and cannot, by a Chap. xil. 
 . . Art. 202. 
 subsequent direction to the carrier, prevent their delivery to the '. L 
 
 consignee, unless such facts are shown as will justify the stoppage 
 
 of the goods in tramitii. {Philadelphia, 8^c. By. Co. v. Vireman, 88 
 
 Pa. St. 2G4.) 
 
 A common carrier's unauthorized delivery of goods may be ratified 
 
 by the consignee. {Convcnse v. Boston, ^t. Rij. Co., 58 N. H. 521.) 
 
 203. It is ordinarily the duty of a railway company 
 to give notice to consignees of the arrival of the goods, 
 at all events when delivery is to be taken at the station 
 of the comp)any ; for the time the consignees ought to 
 call for the goods is when the company is ready to 
 deliver, and they alone are in a position to notify 
 when that is. [Neston Collierij Co. v. L. ^- N. W. Ry. 
 Co., and G. ^Y. Ry. Co., 4 R}^ & Ca. Tr. Ca. 258; 
 Mitchell-^. Lane. cV Yorl:. Ry. Co., L. R. 10 Q. B. 256; 
 44 L. J. M. C. 107.) On the giving of such a notice 
 it becomes the consignee's duty to remove the goods 
 in a reasonable time. {Ibid.) 
 
 As to whether a railway company hold the goods as carriers or 
 warehousemen during that reasonable time, see ^jo-sf. Art. 206. 
 
 The mere fact that the goods are at their intended destination, 
 and not in course of transit, but in the carrier's warehouse, is not 
 sufficient to change his responsibility to that of a warehouseman 
 simply. [Hyde v. Trent, i^'c. Nav. Co., 5 T. R. 389.) 
 
 In Mitehell \. Lane. 8f York. Ry. Co. (supra), the railway com- 
 pany, as carriers, brought some goods by their railway to one of 
 their stations, and immediately gave the consignee notice of their 
 arrival, and that they held the goods " not as common carriers 
 but as warehousemen, at owners' sole risk, and subject to the 
 usual warehouse charges." Soon after the receipt of this notice, 
 the consignee went to the station and removed some of the goods,
 
 20G THE LAW OF CARRIERS. 
 
 Chap. XII. but left tlie rest at tlie station for more than two months. There 
 •^^^- ^^^- were no warehouses at the station, and the goods (flax) remained on 
 the open ground insufiiciently covered, and became damaged by 
 wet ; and it was held that, on the true construction, the railway 
 company were not exempted from all liability, but were bound as 
 bailees to take reasonable care of the goods. Blackburn, J., in 
 delivering judgment, said : " I take it the law is clear, that when 
 the defendants, as carriers, received the goods, they took them with 
 the liability of carriers as insurers. When the goods arrived at 
 their destination the defendants complied with their duty when 
 they gave notice, and then they ceased to be carriers, and incurred 
 from that time a liability as bailees. There are several cases in 
 which the question has been discussed when the carrier's liability 
 ceased and the other liability began, as in Bourne v. Catllff 
 (8 Scott, N. E. 604), and in Ccdrns v. Rohins (10 L. J". Exch. 
 452 ; 8 M. & W. 258) ; but I do not know of any case that supports 
 the proposition that where the owner is in delay in removing the 
 goods, the bailee, in consequence, holds them— discharged from all 
 responsibility. I think the defendants had a general responsibility 
 in holding these goods as bailees for reward, especially when they 
 charged for the warehousing. . . . The stipulation is to be 
 construed against the company who make it, and I do not think 
 that its proper meaning is that the defendants have none of the 
 liability of warehousemen. I think the words mean that the defen- 
 dants would hold as warehousemen, and no longer as carriers with a 
 liability (with the exception of one or two excepted perils) as 
 absolute insurers. Field, J., said : " When the goods arrived it was 
 the railway company's duty to give notice to the consignee of their 
 arrival, and it became the consignee's duty to remove them in a 
 reasonable time. It might be a question whether the company 
 held the goods as carriers or warehousemen during that reasonable 
 time ; but the company gave notice to the consignees to take away 
 the goods, and said that if this were not done, they would not hold 
 them as carriers but as warehousemen." 
 
 The master of a ship is not bound to notify the arrival of the-
 
 THE DELIVERY OF THE GOODS BY THE nAFLWAY COMPANY. 207 
 
 ship to the consignees of the cargo ; they are bound to watch for chap. xil. 
 it, and to take notice of it without communication. (See per ' 
 Brett, L. J., in lielson v. Ba/zl, 12 Ch. D. p. 583 ; Carver's 
 Carriage by Sea, p. 443. But see, contra, Addison on Contracts, 
 8th ed. p. 563.) 
 
 In some of the United States it is hekl that a railway company's 
 liability as a common carrier does not cease upon the arrival of the 
 goods at the station to which they are sent until the consignee has 
 had notice of their arrival and a reasonable opportunity to remove 
 them. This is held in Vermont, New Hampshire, Wisconsin, 
 Kentucky, New Jersey, Louisiana, Ohio and Kansas. In Ten- 
 nessee, common carriers are required by statute to give the 
 consignee a notice of the arrival of the goods. In Massachusetts, 
 a different rule is established. It is there held that the liability of 
 the railway com]3any as a common carrier ceases as soon as the 
 goods arrive at their destination, and are removed from the cars to 
 a place of safety. {Noncay Plai)is Co. v. Boston Sf Maine Ey. Co., 
 1 Grray, 263.) The Massachusetts rule has been followed or 
 adopted in North Carolina, Pennsylvania, Iowa, California, 
 Indiana, Illinois and Georgia. 
 
 In the case of Noncay Plains Co. v. Boston 8^^ Maine By. Co. 
 (.s?(/;rr/), the Court said: " The immediate and safe storage of the 
 goods on arrival, in warehouses provided by. the railway company, 
 and without additional expense, seems to be a substitute better 
 adapted to the convenience of both parties. The arrivals of goods, 
 at the larger places to which goods are thus sent, are so numerous, 
 frequent and various in kind, that it would be nearly impossible to 
 send special notice to each consignee of each parcel of goods or 
 single article forwarded by the trains." 
 
 In States where the carrier is in general required to give notice, 
 he need not give notice in the following cases : — [a) Where the 
 consignee knows that the goods have arrived and are ready to be 
 delivered. {Fenncr v. Biifalo, 8fc. By. Co., 44 N. Y. 505.) 
 (/>) Where the carrier is ignorant of the address of the consignee, 
 and is unable, after due inquiry, to ascertain the same. {Pelton v.
 
 208 THE LAW OF CARRIERS. 
 
 Chap. XII. Ecnsselaer 8f Saratoga Rij. Co., 54 N. T. 214; 21 A. & E. 
 
 ^^^' ^^^' Ey. Ca. 133.) In sucli cases the carriers' liability as common 
 carriers ceases after a reasonable time for the removal of the goods 
 has elapsed. " When the consignee is unknown to the carrier, a 
 due effort to find him and notify him of the arrival of the goods is 
 a condition precedent to the right to warehouse them." (Per the 
 Court in Sherman v. Eud>sOu Purer, &;e. Ry. Co., 64 N. Y. 254.) 
 A consignee who neglects after notice to remove his goods is liable 
 for demurrage. {Kansas Pacific By. Co. v. McCann, 2 Wy. 3.) 
 
 204. A railway company are not bound to make 
 a personal deliyery of the goods in the absence of any 
 usage or special contract to the contrary. [Michigan 
 Central Ry. Co. v. Ward, 2 Mich. 538 ; Michigan Ry. 
 Co. V. Bivens, 13 Ind. 263 ; Nciv Albany Ry. Co. v. 
 Cami:>hell, 12 Ind. 55.) 
 
 Although these are American decisions, it is submitted that the 
 rule is the same in this country. (See ante, Art. 99, p. 84.) If a 
 railway company, receiving goods for conveyance, exacts the pay- 
 ment of cartage in advance of carrying, this will constitute an 
 express contract to deliver at the consignee's house, and the com- 
 pany's liability will not cease until this is done. 
 
 205. A railway company has no right to impose a 
 charge for the conveyance of goods to or from their 
 station, where the customer does not require such 
 service to be performed by them. {Carton v. Bristol 
 ^ Exeter Ry. Co., 28 L. J. C. P. 306.) Where goods 
 are sent at collection and delivery rates, and the con- 
 signee sends a special order referring to a particular 
 consignment, directing that it shall be delivered at the 
 station instead of at his own house, the railway com-
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 209 
 
 pany are bound to deliver the consignment to the chap.xii. 
 person j^roducing the order. ^^' ^^^' 
 
 If no order as to delivery is presented to the rail- 
 way company at all, they are entitled to deliver 
 themselves, and are released from all obligation, both 
 to consignor and consignee, by tendering delivery at 
 the address named on the consignment. {Me^ides v. 
 Caledonian Ry. Co., 5 Ry. & Ca. Tr. Ca. 306.) 
 This was a case before the Eailway Commissioners, and Sir 
 Frederick Peel, in the course of his judgment, said: "Where 
 traffic arrives in Aberdeen, and has to be delivered to persons 
 in the town, it appears that the railway company refuse 
 altogether to dehver any such traffic to the applicant, and this 
 although the applicant has produced in more than one case an 
 order from such person upon the company — it is true an order of a 
 general kind — directing the company to deliver their consignments 
 to the carrier. I gather from the carriers' cases that were decided 
 under the Railway and Canal Traffic Act, before the adminis- 
 tration of that Act was transferred to the Eailway Commissioners, 
 that a railway company cannot force a person against his will to 
 employ them to cart by road in addition to the service of convey- 
 ance by railway, and that a consignee has the right if he pleases 
 to receive his goods at the station and to relieve the carrier from 
 any further duty of carriage in that case. It does not seem to be 
 disputed that if the consignee sends a special order referring to a 
 particular consignment, directing that it should be delivered at the 
 station instead of at his own house, the railway company would 
 in that case be bound to deliver the consignment to the person 
 producing the order. But in this case the order is of a general 
 kind, to deliver all consignments present or to come for the person 
 who sends the order. I confess that if the consignee has the right 
 to receive his goods if he pleases at the station instead of at his 
 own address, I do not myself see any distinction in principle 
 between a special order referring to a particular consignment 
 
 M.
 
 210 THE LAW OF CARRIERS. 
 
 Chap. XII. and a general order referring to all kinds of consignments. 
 
 _L^_^ But as regards the effect that we are to give to a general order 
 we are in this difficulty, that there is a conflict of view between 
 the decisions that were given under the Trafiic Act by the Court 
 of Common Pleas in this country and those given by the Court of 
 Session in Scotland. In this country, in the case of Baxendale v. 
 The Great Western RaUivay Company (28 L. J. C. P. 81 ; 5 C. B. 
 (N. S.) 336), and in the case of Garton v. The Great Western 
 Railway Company (28 L. J. C. P. 306 ; 6 C. B. (N. S.) 639), and 
 more particularly in Parlcinson v. The Great Western Raihcay 
 Company (L. E. 6 C. P. 544), the Court of Common Pleas held 
 that a railway company were bound by a general order of that 
 kind. On the other hand, in Wannan v. Scottish Central Railway 
 Company (2 Sess. Ca., 3rd Ser. 1373), and again in Pickford v. 
 TJie Caledonian Railway Company (4 Sess. Ca., 3rd Ser. 755), the 
 Court of Session held that the railway company were not bound 
 by any such general order, and they laid it down, as I understand, 
 as a proposition of law, that although such a general order might 
 be given by a consignee to a railway company, the railway 
 company had the option to take no notice of the order and to 
 deliver the goods according to the address that they had received. 
 That is a proposition of law, and, in a Scotch case, this being a 
 Scotch case, I think we have no choice but to hold that it is a 
 ruling by which we are bound. That being so, we must, I think, 
 treat the Caledonian Railway Company in this case as if no order 
 had been given to them at all. And on the supposition that there 
 has been no order at all from the consignees to deliver goods to 
 the applicant, the company cannot be held to have done anything 
 of which any complaint can be made if they have thought proper 
 to deliver the goods according to the address in the consignment." 
 In another case before the Commissioners, it appeared that F. & 
 Co., carriers, delivered to a railway company at their station goods 
 for conveyance addi-essed to the consignees. With such goods a 
 consignment note was handed to the railway company, containing, 
 in addition to the names and addresses of the consignees, the words
 
 I 
 
 TEE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 211 
 
 "To the Ccare of F. & Co." The railway company refused to Chap. xii. 
 
 Art 205 
 recognise the latter words, and delivered the goods to the consignees '. L 
 
 by their own agents or other carriers. The Commissioners 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 F. & 
 
 Co., or their agents, for delivery to the consignees ; that as between 
 
 the railway company and F. & Co. the latter were the consignors, 
 
 and that the railway company accepted the goods upon the terms 
 
 stated in the consignment note ; and that the railway company 
 
 were precluded by the consignment note from 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 
 
 F. & Co., or their agents. {Fishhourne 8^ Co. v. Midland Gt. Western 
 
 of Ireland Ey. Co., 2 Ey. & Ca. Tr. Ca. 224.) 
 
 206. When goods have arrived at the end of the 
 transit the railway company are bound to keep them 
 a reasonable time for the consignee to claim or fetch 
 them in, during which time their liability as insurers 
 continues. After a reasonable time this extraordinary 
 liability ceases, and they become mere bailees of the 
 goods for hire. (Chaptnan v. G. W. Ry. Co.^ 5 Q. 
 B. D. 278 ; 49 L. J. Q. B. 420 ; In re Webb, 8 Taun. 
 443.) 
 
 Whilst the goods are in the possession of the railvv^ay 
 company, they are bound to take proper means for 
 their preservation. {Tqf Vale Ry. Co. v. Giles, 2 E. & 
 B. 823.) 
 
 The amount of time a railway company ought to 
 allow a consignee to unload and remove a consign- 
 ment depends upon the varying circmnstances of each 
 particular case. {Coxoji v. JSf. E. Ry. Co., 4 Ry. & Ca. 
 Tr. Ca. 284.) 
 
 p2
 
 212 THE LAW OF CARRIERS. 
 
 Chap. XII. Where the consignee makes default in receivino^ the 
 
 Art. 206. . ° , ^ 
 
 goods, the railway company are entitled to recover 
 
 from him the expenses reasonably incurred in taking 
 care of the goods. [G. N'. Ry. Co. v. Stvajfield, 43 
 L. J. Ex. 89; L. R. 9 Ex. 132. See ante, Art. 96.) 
 
 In the latter case the defendant sent a horse by railway con- 
 signed to himself at a station on the Kne, and paid the fare. When 
 the horse arrived at the station there was no one on the defendant's 
 behalf to receive it, and the railway company therefore placed it 
 with a livery stable keeper ; and the railway company were held 
 entitled to recover from the defendant the reasonable charges which 
 they had paid to the stable keeper. 
 
 A carrier's contract to deliver goods at a certain place is per- 
 formed by the carriage of the goods to their destination and an 
 offer to deliver them there to the consignee; and consequently, after 
 com];)letion of the carriage and a tender of the goods, the liability 
 of the carrier, as such, under the contract, ceases ; and he remains 
 liable, so long as the goods continue in his possession, only for acts 
 of negligence respecting them, and no longer as an insurer of their 
 absolute safety. [SJiepherd v. Brktol ^ Ex. Rij. Co., L. E. 3 Ex. 
 189 ; 37 L. J. Ex. 113 ; Hcucjh v. L. 8^ N. W. Ey. Co., L. R. 5 Ex. 
 51 ; 39 L. J. Ex. 48 ; and see Leake on Contracts, p. 852.) 
 
 A railway company cannot charge demurrage for freight stand- 
 ing in their cars in absence of contract, statute, or usage tantamount 
 to law. {Burlington and Missouri, 8fc. Ry. Co. v. Chicago Lumber 
 Co., 15 Neb. 390 ; 22 A. & E. Ry. Ca. 432 ; N. E. By. Co. v. 
 Cairns, 32 W. R. 829.) 
 
 It is the duty of a carrier by railway, when the goods are con- 
 veyed to its station, to unload and place them in a convenient 
 place for dehvery, and, if the consignee is then ready to receive 
 them, to deliver them to him ; but if he is not, the carrier must 
 then safely store them under the charge of competent and careful 
 servants, ready to be delivered when called for by those entitled to 
 receive them. When this is done, the carrier's duty is discharged, 
 
 1
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 213 
 
 and his liability as a carrier ceases. {Ca/tii v. MicJiignn, 8^'c. Ey. Co., Chap. xil. 
 71 111. 96.) ' ^'' ^"^- 
 
 A common carrier does not discharge his obligation to keep the 
 goods until a reasonable time has elapsed for removal by the con- 
 signee, by dehvering them to a third person to keep before the 
 reasonable time has elapsed. {Bell v. St. Louis, 8^'c. Puj. Co., 6 Mo. 
 App. 363.) 
 
 A " reasonable time " is such as would enable one residing in 
 the vicinity of the place, and informed of the probable time of 
 arrival, to inspect and remove the goods diu'ing business hours. 
 [Ibidem.) 
 
 What will amount to reasonable time is a cjuestion of fact and 
 not of law, and must depend on the circumstances of the particular 
 case. [Chapman v. G. W. Ry. Co., suj^m.) Specially directing 
 goods "to be left till called for" does not affect the liability of the 
 railway company, either as carriers or warehousemen. [Ibidem.) 
 
 307. If , in consequence of an imj^erfect address, 
 or the consignee's removal from the j^lace, he cannot 
 be found, or if he refuse to receive the goods at the 
 stated address, the usual course of business is for the 
 carrier to give notice to the consignor that the goods 
 have been rejected, and to wait his instructions. The 
 goods will then be held at the order of the consignor 
 {Mdzenberg v. Ilighland Ry. Co.^ 7 Sess. Ca. (3rd Ser.) 
 919), and will be at his risk. 
 
 There is, however, no absolute rule of law to this effect, and the 
 question whether it would have been reasonable in the cii-cum- 
 stances that such notice shoidd have been given is properly one for 
 a jury. [Iliuhon v. Baxendak, 27 L. J. Ex. 93 ; 2 H. & N. 
 575.) 
 
 208. Where there has been a deliver v, actual or 
 constructive, though the goods remain on the railway
 
 214 THE LA W OF CABRIERS. 
 
 Chap. XII. company's premises, they are no longer liable as 
 
 Art* 20o. ^ 
 
 carriers, but only as warehousemen, or on any special 
 
 terms they may think proper to impose on the cus- 
 tomer, and the contract is not affected by any of the 
 statutes relating to carriers. [Shepherd v. Br. Sf Ex. 
 Ry. Co., L. R. 3 Ex. 189; 37 L. J. Ex. 113.) 
 In that case cattle delivered by the plaintifi to the defendants 
 arrived in London at noon on Sunday. If the defendants' train 
 had kept its time, it would have arrived at seven in the morning. 
 As the police regulations prevented the cattle being driven thi'ough 
 the streets till midnight, they were placed in pens at the station 
 by the defendants' servants, assisted by a man who was employed 
 by the plaintiff. After midnight, when the plaintiff's drover went 
 to fetch them away, he found that two were dead ; and the de- 
 fendants' servants would not let him take the rest away unless he 
 signed a receipt for the whole number. Afterwards the plaintiff 
 came himself and took them away ; but in the meantime the 
 Monday's market was lost. It was held by Bramwell, B., and 
 Channell, B., that the defendants' liability as carriers was over 
 before the damage occurred. Contra, per Martin, B., that, at 
 the time of the damage, there had been no delivery of the cattle to 
 the plaintiff, and that the defendants were responsible for the con- 
 sequences of their servant's refusal to dehver. 
 
 A carrier has been held hable as a bailee for reward of goods 
 warehoused by him after the transit was complete, the warehousing 
 being accessory to the contract of carriage. (See Angell on 
 Carriers, 41.) 
 
 It seems a warehouseman may be liable as an insurer by the 
 custom of a particular trade. {Nor. Brit. Ins. Co. v. Lon. ^ 
 Glohe Ins. Co., 5 Ch. D. 569 ; 46 L. J. Ch. 537.) 
 
 Groods entrusted to a railway company having been tendered by 
 them for dehvery at the address of the consignees, were refused 
 acceptance, and the company thereupon took them back to their 
 own premises. They then (in accordance with their practice
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 215 
 
 under such circumstances) sent an advice note to the consignees' Chap. xii. 
 
 Art 208 
 address by post, stating that the goods remained at the risk of the ' 
 
 consignees, and would he delivered to the person producing the 
 
 note. They subsequently delivered the goods to a person who had 
 
 formerly been in the service of the consignees, and who, having 
 
 obtained the advice note fraudulently, produced it at the company's 
 
 premises : — held, that upon the goods being returned on the 
 
 company's hands, their duty as carriers was at an end, and they 
 
 became involuntary bailees ; and that in an action brought against 
 
 them by the consignors for misdelivery and conversion, it was a 
 
 question of fact whether they had acted under the circumstances 
 
 with due and reasonable care and diligence. {JELeugh v. L, ^ N. W. 
 
 By. Co., L. E. 5 Ex. 51 ; 39 L. J. Ex. 48.) 
 
 Where the railway company took back a parcel the very next 
 morning after a refusal to receive it, from Plymouth to London, 
 they were held liable for so doing, the jury having found that the 
 parcel v/as sent back before the expiration of a reasonable time. 
 {Crouch V. G. W. Ry. Co., post, p. 220.) 
 
 A railway company carried coals to the station to which they 
 were addressed, and gave notice to the consignee of their arrival, 
 upon which, according to the usual course of practice between 
 them and the consignee, it lay upon him to send for them and 
 take them away ; and he not having done so within a reasonable 
 time, they unloaded the coals and left them on the siding, where 
 they were lost. It was held, in an action against them as common 
 carriers, for non-delivery, that they had performed their contract 
 by a constructive delivery. {Bradshaw v. Irish North Western Ry. 
 Co., 7 Jr. C. L. E. 252.) 
 
 In Chapman v. Great Western Ry. Co. (5 Q. B. D. 278 ; 49 L. J. 
 Q. B. 420), certain goods were consigned by the defendants' rail- 
 way to W., addressed to the plaintiff, "to be left till called for." 
 On their arrival at W. they were placed in the station warehouse 
 to await their being called for. Two days afterwards, without 
 default on the part of the defendants, the warehouse was burnt 
 down, and the plaintiff's goods were consumed by fire. Held,
 
 21Q TEE LAW OF CARRIERS, 
 
 Chap. XII. that after tlie interval of time which the plaintiff had suffered to 
 ^'^^' ^^^' elapse since the arrival of the goods, the liability of the defendants 
 as common carriers in respect of the goods had ceased, and they 
 had become mere warehousemen of them, and consequently the 
 defendants were not liable to an action for the loss of the goods, 
 in the absence of any evidence of negligence on their part. 
 
 In that case Cockburn, C. J., in delivering the judgment of the 
 Court (Cockbui-n, C. J., Lush, and Manisty, JJ.), said : "The 
 question is, whether the goods in question are to be considered as 
 having been in the custody of the defendants as carriers— in which 
 case the defendants would be liable for the loss, though not arising 
 from any default of theirs ; or as warehousemen — in which case 
 they would be liable only for want of proper care, which is not 
 
 alleged to have been the case here The question of 
 
 where the liability of the carrier ceases— or, rather, becomes ex- 
 changed for that of an ordinary bailee for hire — is sometimes one 
 of considerable nicety, and by no means easy of solution. . . . 
 The contract of the carrier being not only to carry but also to 
 deliver, it follows that, to a certain extent, the custody of the 
 goods as carrier must extend beyond, as well as precede, the period 
 of their transit from the place of consignment to that of destina- 
 tion. First, there is in most instances an interval between the 
 receipt of the goods and their departure — sometimes one of 
 considerable duration. Next there is the time which in most 
 instances must necessarily intervene between their arrival at the 
 place of destination, and the delivery to the consignee, unless the 
 latter — which, however, is seldom the case — is on the spot to 
 receive them on their anival. Where this is not the case, some 
 delay, often a delay of some hours — as, for instance, when goods 
 arrive at night, or late on a Saturday, or where the train consists 
 of a number of trucks which take some time to unload — unavoidably 
 occurs. 
 
 "In these cases, while, on the one hand, the delay being 
 unavoidable cannot be imputed to the carrier as unreasonable, or 
 give a cause of action to the consignor or consignee, on the other
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 217 
 
 hand, the obligation of the carrier not having been fulfilled by the Chap. xii. 
 
 delivery of the goods, the goods remain in his hands as carrier, ! L 
 
 and subject him to all the liabilities which attach to the contract 
 of carrier. A fortiori, will this be the case where there is un- 
 reasonable delay on the part of the carrier, if the consignee is 
 ready to receive. The case, however, becomes altogether 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 arrival of which is 
 liable to delay. On the other hand, he cannot, for his own con- 
 venience, or by his own laches, prolong the heavier liability of the 
 carrier 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 ignorance 
 — at all events where the carrier has no means of communicating 
 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 delay- 
 ing to take away the goods beyond a reasonable time, the obliga- 
 tion 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 case of accident. What will amount to 
 reasonable time is sometimes a question of difiiculty, but as a 
 question of fact, not of law. As such it must depend on the 
 circumstances of the particular case. 
 
 " Such being the general rule, it is of coiu'se competent to the 
 parties to modify that contract by the introduction of any terms or 
 conditions they may please. The question arises whether they 
 have done so, and, if so, to what extent in the present instance. 
 The goods were specially directed ' to be left till called for.'
 
 218 THE LA W OF CARRIERS. 
 
 Chap. XII. What is the meaning of these words ? What effect, if any, have 
 
 '. 1 they on the contract, as affecting the liability of the defendants ? 
 
 In our opinion, none. They amount to no more than an intima- 
 tion to the carrier that the goods are not to be delivered elsewhere, 
 but will be fetched from the station. They are words which have 
 been long in use, and had their origin in former times when the 
 carrier generally had his office in the town to which he carried, and 
 was in the habit of delivering at the house or place of business of 
 the person to whom goods were addressed. To prevent goods, 
 which it better suited the convenience of the consignee to receive 
 at the office of the carrier — more especially when he had no resi- 
 dence or office at the particular place — from being sent out for 
 delivery, and, possibly, misdelivery, and to insure their being kept 
 at the office of the carrier ready for delivery, they were specially 
 so addressed. There are still places at which railway companies 
 send out goods from the station. The consignors of the goods now 
 in question were probably unaware whether the defendant company 
 did so at Wimborne, or not. They no doubt knew that the plain- 
 tiff did not reside or carry on business there, except in passing. 
 They were probably aware that he was going about the country 
 with his goods, and that it was uncertain at what precise moment 
 it would suit him to receive them. They therefore directed them 
 to be left at the station till called for — ob\T:ously for the plaintiff's 
 convenience, not for that of the company. No doubt some effect 
 must be given to the words. Having contracted to carry the goods 
 subject to the condition of keeping them till called for, the com- 
 pany would be bound to keep them — possibly not for an indefinite, 
 but, at all events, for a reasonable time. But in what capacity ? 
 As carriers or as warehousemen ? In our opinion no change in 
 the conditions of liability is introduced by these words. It would 
 be in the highest degree unreasonable that the company, having 
 agreed to keep the goods 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 they undertook to 
 keep the goods till it suited the convenience of the plaintiff to take 
 
 1
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 219 
 
 them away, witli the intention of prolonging their responsibility Chap. xil. 
 
 Art 208 
 
 throughout the time whatever it might be. In our opinion, as ' 
 soon as a reasonable time for delivering had passed, the defendants 
 were fully entitled to treat their responsibility as carriers as at an 
 end, and exchanged for that of warehousemen. 
 
 " This view of the case receives support from the decision of the 
 Court of Common Pleas in Re Webb (8 Taun. 443), which, in 
 principle, is quite analogous to the present case, though the facts 
 are not precisely the same. There the defendants, the carriers, in 
 order to obtain their exclusive custom, had agreed with the plaintiffs 
 to store all goods arriving for them in the defendants' warehouse 
 free of charge, till it suited the plaintiffs to take them away. A 
 fire having accidentally broken out, and goods of the plaintiffs, 
 which had been lying at the defendants' warehouse upwards of a 
 month, having been destroyed, it was held that the goods having 
 been in the keeping of the defendants for the convenience of the 
 plaintiffs, the defendants were not liable for the loss. Here, too, 
 the goods were equally in the keeping of the defendants for the 
 convenience of the plaintiff, and the same result must ensue." 
 
 It is the duty of a railway company to keep its warehouses in 
 as safe a condition, and provided with such means and appliances, 
 if any, for extinguishing fires, as ordinarily prudent and cautious 
 men would do under like circumstances. {Lelaml v. Chicago, (^r. 
 Ry. Co., 21 A. & E. Ey. Ca. 108.) A warehouseman is only 
 answerable for loss occasioned by the want of ordinary care and 
 skill ; but he may restrict his liability by contract, except as to 
 loss occurring through his fraud or want of good faith. {Gash- 
 u-eiler v. Wabash, l^c. Ry. Co., 25 A. & E. Ey. Ca. 403.) 
 
 209. If the consignee refuses to pay the carriage 
 upon the goods being tendered to him, the railway com- 
 pany has the option of adopting either of two courses: 
 they may deliver the goods to the consignee, and trust 
 to their right of action for the recovery of the amount
 
 220 THE LA W OF CARRIERS. 
 
 Chap. XII. for carriao-e, or tliev may retain them in virtue of their 
 
 Art. 209. , ^ ' J J 
 
 lien for that amount. (See ante^ Chap. VIII. and 
 
 2wst, Art. 229.) 
 
 It is the duty of a railway comj^any, if they keep 
 goods for their lien on refusal of the consignee to pay 
 for the carriage, to deal with them in a reasonable 
 manner, and to keep them in a reasonable place ; and 
 this duty will generally impose upon them the obliga- 
 tion of keeping the goods at the place of delivery for 
 a reasonable time, if tliey have a convenient place of 
 deposit there. (Per Willes, J., in Crouch v. Great 
 Western Ry. Co., 27 L. J. Ex. 345.) 
 
 In that case the defendants carried a parcel from London con- 
 signed to the plaintiff at Plymouth. At Plymouth the charge was 
 disputed, and thereupon the defendants next morning sent back the 
 parcel from Plymouth to London. The majority of the Court — 
 Cockburn, C. J., Williams, Crompton, and Willes, JJ. — held that the 
 railway company were guilty of a wrongful act in sending the 
 parcel, in a time found by the jury to be unreasonably short after 
 the refusal to pay the hire, to a place where it was, as found by 
 the jury, unreasonable to send it. 
 
 Crompton, J., in delivering the judgment of himself and Cock- 
 burn, C. J., said : "It may be too much to say that a carrier 
 cannot in any possible case send a parcel back ; but, certainly, it 
 is very much too strong to say that in every case a carrier can 
 send the parcel back to the consignor on a refusal to pay for the 
 carriage;" and Willes, J., said: "When the parcel was refused at 
 the end of the line they were entitled to retain it in respect of their 
 lien ; but they might, if they had chosen, have delivered the parcel 
 trusting to their action for the recovery of the proper sum for the 
 carriage. They did not think proper to do so, but retained it, 
 and retaining it, it appears to me, they were not entitled to dispose 
 of it as they thought proper themselves. They could not have
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 221 
 
 sent it to any foreign part ; they could not have sent it to any chap. xil. 
 part of the kingdom where it would be expensive and troublesome ' 
 for the plaintiff to go to receive it. I think that those are plain 
 propositions. If so, there must be in effect some duty imposed 
 upon them by law, and that duty is to take reasonable care of a 
 parcel and to deal with it in respect of time and place in a reason- 
 able manner. I entirely agree with what was laid down by the 
 Court of Exchequer in the case of Hudson v. Baxcndalc (27 L. J. 
 Ex. 93). That appears to me to have been the true view of the 
 case, and, generally speaking, dealing with a parcel under such 
 circumstances, in a reasonable manner, and keeping it in a 
 reasonable place, would impose upon the carrier the duty of 
 keeping it for a reasonable time, if he had the means of doing it, 
 at the place at which it was originally delivered to be carried to." 
 
 As to the lien of railway companies, see 7>»os/, Chap. XIII. Art. 
 229 ; and ante, Chap YIII. 
 
 210. When goods are delivered by a railway 
 company at the j^i'oper place, and at the proper time, 
 the consignee is bound to examine them and ascertain 
 whether they are in good order, and if he does not 
 intimate objection, it will be presumed that they were 
 delivered in good order. [Stewart v. North British Ry. 
 Co., 5 Sess. Ca. (4th Series) 426.) 
 
 The consignee is entitled to a reasonable time in which to 
 inspect the goods before he accepts them. {Ante, Chap. VII. 
 Art. 106.) It was said in Skinner v. Chicago 8^ Rock Island R//. 
 Co. (12 Iowa, 191), that a railway company has a right to 
 require a receipt from the consignee showing that the goods were 
 in good order when delivered. (See 2 Eedfield on Eailways, 68.) 
 
 211. If the consignee of the goods, with the assent 
 of the railway company, is engaged for the convcni-
 
 222 THE LA W OF CARRIERS. 
 
 Chap. XII. ence of both parties in taking delivery in a particular 
 
 Art* (&11. 1 •! Ill 
 
 way, the railway company are bound to see that 
 
 while he is so engaged he is not injured through the 
 negligence of themselves or their servants in the per- 
 formance of their contract. [Wright v. L. ^^ N. W. 
 Rij. Co., 1 Q. B. D. 252 ; 45 L. J. Q. B. (App.) 570.) 
 
 In that case the plaintiff sent a heifer (which was put into a 
 horse-box) by defendants' railway to their P. station. On the 
 arrival of the train at the station, there being only two porters 
 available to shunt the horse-box to the siding from which alone 
 the heifer could be delivered to the plaintiff, in order to save delay 
 he assisted in shunting the horse-box, and while he was so assisting 
 he was run against and injured through a train being negligently 
 allowed by the defendants' servants to come out of the siding. 
 There was evidence that the station-master knew that the plaintiff 
 was assisting in the shunting, and assented to his doing so. The 
 Court of Appeal held that the plaintiff was not a mere volunteer 
 assisting the defendants' servants, but w^as on the defendants' 
 premises with their consent for the purpose of expediting the 
 delivery of his own goods, and the defendants were therefore liable 
 to him for the negligence of theu- servants, according to the prin- 
 ciple of Holmes v. N. E. By. Co., infra. 
 
 Lord Justice Mellish said, "It is very convenient for railway 
 companies to receive the assistance of the consignees of goods at a 
 small station like Penrith, and if they rely upon a practice on the 
 part of consignees to render assistance, and so free them from the 
 necessity of pro^dding a larger staff of porters, they must take care 
 that persons so assisting them to perform their contract with those 
 persons are not injured through the neghgence of servants in their 
 employ." 
 
 At the defendants' station at C, it was the practice to unload 
 coal waggons by shunting them, and tipping the coal into cells ; it 
 ■was also the practice for the consignees of the coal or their servants 
 to assist in the unloading, and for that purpose to go along a
 
 THE DELIVERY OF THE GOODS BY THE RAILWAY COMPANY. 223 
 
 flagged path by the side of the waggons. The plaintiff was con- Chap. xii. 
 
 Art 211 
 signee of a coal waggon, which could not be unloaded in the usual '. L 
 
 way on account of all the cells being occupied. With the per- 
 mission of the station-master he went to his waggon, which was 
 shunted in the usual place, took some coal from the top of the 
 waggon, and descended on to the flag-path. The flag he stepped 
 on gave way, and he fell into one of the cells and was injured. It 
 was held that, although not getting his coal in the usual mode, the 
 plaintiff was not a mere licensee, but was engaged, with the con- 
 sent of the defendants, in a transaction of common interest to both 
 parties, and was therefore entitled to require that the defendants' 
 premises should be in a reasonably secure condition. {Holmes v. 
 JV. E. Ey. Co., L. E. 6 Ex. 123 ; 40 L. J. Ex. 121.) 
 
 It was held in Indermaio' v. Dames (L. E. 2 C. P. 311 ; 36 
 L. J. 0. r. (Ex. Ch.) 181) that where a person resorts to a build- 
 ing in the course of business, on the express or implied invitation 
 of the occupier, such person, using reasonable care, is entitled to 
 expect the occupier to use reasonable care to prevent damage from 
 unusual danger which he knows or ought to know.
 
 224 THE LA W OF CA RRIEES. 
 
 CHAPTER XIII. 
 
 THE EATES AND CHARGES PAYABLE FOR THE CONVEYANCE OF 
 THE GOODS BY RAILWAY. 
 
 I. — Tolls and EateS. Articles. 
 
 1. Power to make reasonahle Charges for the conveyance of Goods 
 
 not exceediny the Maximum Rates .- 212 
 
 2. Power to vary the Rates 213 
 
 3. How Rates calculated ivhere Railways amalgamated 214 
 
 4. How Rates calculated ichere Two Railways are icorhed hy One 
 
 Company 215 
 
 5. Puhlication of Tolls 216 
 
 6. Publicatiofi of Rates 217 
 
 7. Railway Company boimd to furnish particulars of Charges .... 218 
 
 8. Carriage of Through Traffic at Through Tolls and Rates .... 219 
 
 9. Alternative Rates and Special Contract 220 
 
 10. Complaints to Board of Trade of unreasonable Charges 221 
 
 11. Jurisdiction of the Railway Commissioners over Tolls and Rates 222 
 
 12. Recovery of Overcharges 223 
 
 II. — Terminal Sebvices and Chakges, &c. 
 
 13. Power of Commissioners to fix Terminal Charges 224 
 
 14. Charges for " Services incidental to the Duty or Busitiess of a 
 
 Carrier " 225 
 
 15. Charges for " Loading and Unloading " 226 
 
 16. Charges for " Covering" and ^^ providing Covers " 227 
 
 17. Charge for Weighitig Goods for Consignees 228 
 
 III. — The Lien of a Eailway Company. 
 
 18. Railway Company as Carriers have Common Law Lien 229
 
 RAT EH ANT) TERMINAL CHARGES. 225 
 
 I. — Tolls and Rates. 
 
 212. Railway companies are empowered by their ^^-^^^l' 
 
 special Acts to take certain specified tolls for the 
 
 carriage of goods and persons on their railway, and 
 for the use of such railway. 
 
 '' It shall be lawful for the company to use and 
 employ locomotive engines or other moving power, 
 and carriages and waggons to be drawn or propelled 
 thereby, and to carry and convey upon the railway 
 all such passengers and goods as may be offered to 
 them for that purpose, and to make such reasonable 
 charges in respect thereof as they may from time to 
 time determine u^oon, not exceeding the tolls by the 
 special Act authorised to be taken." (8 Vict. c. 20, 
 s. 86.) 
 
 '' It shall not be lawful for the company at any 
 time to demand or take a greater amount of toll, or 
 make a greater charge for the carriage of passengers 
 or goods than they are by this and the special Act 
 authorised to demand." (8 Vict. c. 20, s. 92.) 
 
 The third section enacts that the word "toll" shall include 
 " any rate or charge or other payment payable under the special 
 Act" for any passenger, animal, or goods conveyed on the 
 railway. 
 
 The power to charge tolls is found in the provisions of the 
 Railways Clauses Consolidation Act, 1845, which form this Article, 
 as well as in each special Act, but the amount of the tolls is to be 
 gathered from the special Acts only. 
 
 What determines whether a charge is a rate or a toll is not who 
 
 M. Q
 
 226 THE LAW OF CARRIERS. 
 
 Ch. XIII. provide tlie carriage or who provide the engine, but who are the 
 
 '- earners. {Wathnson y. Wrexham, ^c. Ry. Co., 3 Ey. & Ca. Tr. 
 
 Ca. 5.) 
 
 The toll clauses of a railway company's special Act are controlled 
 by the general clause limiting maximum charges. {Chatterley Iron 
 Co. V. N. Staff. Ry. Co., 3 Ey. & Ca. Tr. Ca. 238.) 
 
 " We do not consider that it would be expedient, even if it were 
 practicable, to adopt any legislation which would abolish the free- 
 dom railway companies enjoy of charging what sum they deem 
 expedient within their maximum rates when properly defined, 
 limited as that freedom is by the conditions of the Traffic Act. 
 (Eeport of Eoyal Commission on Eailways, 1867.) 
 
 The charges which railway companies are entitled to make are 
 of two kinds, those pertaining to them as owners of a railway, and 
 those attaching to them as carriers. 
 
 " The charges of railway companies in their character of carriers 
 consist mainly of remuneration for the mere conveyance of goods, 
 and this remuneration includes tolls for the use of the railway, for 
 the use of carriages and waggons, and for the supply of locomotive 
 power. The amount of these tolls is fixed by statute, and a 
 maximum rate comprising the several tolls is, with few exceptions, 
 also fixed by statute, and is usually somewhat less in amount than 
 the aggregate of the three separate tolls, probably because it was 
 supposed that if the company provided both carriages and loco- 
 motive power they might make an easier profit than if either of 
 
 these were supplied by the trader When the earlier Eail- 
 
 way Acts were passed it was supposed that the companies would 
 be, like the canal companies, mere owners of the route, and their 
 maximum tolls were fixed accordingly. But they subsequently 
 became carriers, and as carriers provided stations, sidings, ware- 
 houses, cranes, and other fixed plant, which had in many cases 
 previously been provided or leased by private firms. The evidence 
 given before your Committee proves conclusively that large sums 
 have been expended by railway companies in pro\"iding, from time 
 to time, for this accommodation. In the second place they pro-
 
 RATES AND TERMINAL CHARGES. 227 
 
 vided labour and appliances for loading, unloading, covering, Ch. XIII. 
 
 collecting, and delivering traffic, wliicli services varied in respect ^ - 
 
 of different traffic. Some confusion has arisen from the use of the 
 word ' terminals ' for both these classes of service, and it would 
 be well if distinct terms could be applied to them, such as ' station 
 terminals ' and ' handling terminals.' For these services they 
 claim to be entitled by different Acts of Parliament to receive 
 ' reasonable remuneration.' " Report of Select Committee on 
 Railways, 1882. {See post , Arts. 224, 225.) 
 
 A railway company in carrying goods took them past C. junction 
 to N.E. station and back, and then on by other lines, and charged 
 a mileage rate, which included the mileage to and fro between 
 these places ; such route was reasonable and usual. It was held 
 that they could so charge. (Z. Sf S. W. jRy. Co. v. Mijcrs, 39 L. J. 
 C. P. 57.) 
 
 The S. D. Ry. Co. (as the working company under an agree- 
 ment) in conveying goods from the B. Railway to a line leading 
 from their own railway, were compelled, through not having any 
 siding or other accommodation at the junction, to convey goods 
 three miles beyond the junction to a station on their line, and 
 then to send them back to the junction by another train, and it 
 was held that in such they were entitled to credit themselves with 
 the mileage one way — namely, the three miles — in estimating the 
 mileage proportion between the two companies. {BitcJifastle/'gh, 
 8fc. Ry. Co. V. South Devon By. Co., 1 Ry. & Ca. Tr. Ca. 321.) 
 
 In considering the question of the reasonableness of charges, the 
 principle is not what profit it may be reasonable for a railway 
 company to make, but what it is reasonable to charge to the per- 
 son who is charged. {International Bridge Company v. Canada 
 Southern By. Co., 8 App. Cas. 723.) A provision in a railway 
 company's special Act authorising them to fix such sum in respect 
 of small parcels (not exceeding 500 pounds weight) as to them 
 should seem fit repeals the maximum rate clause. {Baxendale v. 
 G. W. By. Co., IG C. B. (N. S.) 137.) Such a provision does not 
 extend to articles sent in large aggregate quantities, though made 
 
 q2
 
 228 THE LAW OF CARRIERS. 
 
 Ch. XIII. up of separate and distinct parcels, such as bags of sugar, coffee, 
 
 Art 212 
 
 '■ ^ &c. ; but only to single parcels unconnected with parcels of a like 
 
 nature which might be sent upon the railway at the same time. 
 {Edicanh V. G. IF. Ry. Co., 11 C. B. 588.) 
 
 One of the toll clauses of a railway company's special Act con- 
 tained these words, " For all cotton and other wools, hides, drugs, 
 manufactured goods, and all other wares, merchandize, articles, 
 matters or things." Coleridge, J., in delivering the judgment of 
 the Court (Lord Campbell, C. J., Coleridge J., Wightman, J., and 
 Erie, J.), said : " It was suggested that ' manufactured goods ' was, 
 like ' diy goods,' a term of art, and denoted goods supplied from 
 what are called the ' manufacturing districts,' and which may be 
 seen in warehouses and the shops of drapers and haberdashers 
 marked 'fabrics'; and some such notion may have been in the 
 mind of the framers of these sections ; but there are no clear indi- 
 cations of this, and it was certainly the duty of the defendants, if 
 they had intended such a limitation of words, which in their 
 natural meaning import a great deal more, to have taken care that 
 such limitation should be expressed in unambiguous language. 
 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 labom", but such 
 as are ordinarily produced in manufactories, and we should, there- 
 fore, exclude stationery, and include shoes, ironmongery, glass and 
 drapery. It should be observed, however, that having given what 
 we conceive to be the meaning of the term, the application of that 
 meaning to particular articles is a question of fact, not of law. 
 . . . We get no assistance from the context. ' Cotton,' ' wools,' 
 and ' drugs ' may all mean articles in the raw state — probably do." 
 {Parker v. G. W. By. Co., 25 L. J. Q. B. 209 ; 6 E. & B. 77.) 
 
 The Railway Commissioners have decided that the expression "all 
 sorts of manure " includes artificial manm'es, as well as dung and 
 cheap manm-es. {Aberdeen Lime Co. v. Gt. North of Scotland Ey. 
 Co., 3 Ry. & Ca. Tr. Ca. 203.)
 
 BATES AND TERMINAL CIIARGES. 229 
 
 213. Railway companies have power to vary their ^^^^Jig- 
 rates as they may think proper, provided their 
 charges are the same to all, and do not exceed 
 the maximum sums they are authorized by their Acts 
 to charge, and a reasonable amount for legal terminal 
 services. 
 
 "And whereas 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 par- 
 ticidar ^^arties, or for the purpose of collusively and 
 unfairly creating a monopoly, either in the hands of 
 the company or of particular parties : it shall be law- 
 ful, therefore, for the company, subject to the pro- 
 visions and limitations herein and in the special Act 
 contained, from time to time to alter or vary the tolls 
 by the special Act authorized to be taken, either upon 
 the whole or upon any particular portions of the rail- 
 way, 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 per mile or 
 otherwise, in respect of all passengers and of all goods 
 or carriages of the same description, and conveyed or 
 proj^elled 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 indi- 
 rectly in favour of or against any particular company 
 or 2^erson travelling upon or using the railway." 
 (8 Vict. c. 20, s. 90.)
 
 230 THE LAW OF CARRIERS. 
 
 Ch. XIII. As to the portion of this section relating to equality of tolls, 
 
 — '■ '- see post, Art. 259, p. 330, 
 
 The word " tolls " applies to traffic generally, and is not limited 
 
 to tolls strictly so called. {Evcnhed v. L. S^' N. W. Ry. Co., 
 
 2 Q. B. D. 254 ; 46 L. J. Q. B. D. 289.) 
 
 214. " And whereas autliority lias been given by 
 various Acts of Parliament to railway comjoanies to 
 demand tolls for tlie conveyance of passengers and 
 goods, and for other services, over the fraction of a 
 mile equal to the toll which they are authorized to 
 demand for one mile ; therefore, in cases in which 
 any railway shall l3e amalgamated with any other 
 adjoining railway or railways, such tolls shall be cal- 
 culated and imposed at such rates as if such amalga- 
 mated railways had originally formed one line of 
 railway." (8 Vict. c. 20, s. 91.) 
 
 One railway company, A., made an agreement with another 
 railway company, B., to allow B. to carry passengers and goods 
 over the A. line on certain terms. There was a station on the 
 A. line towards the increased extent and accommodation of which 
 the B. company was to contribute a limited sum. The A. com- 
 pany amalgamated with others, obtained several branch lines, and 
 assumed a different name. The B. company did the same. It 
 was held by the House of Lords that the agreement applied to all 
 traffic coming from the B. line upon the A. line, however origi- 
 nating, whether only upon the original B. hue, or in, from, or 
 through any of its amalgamated hues. {T/ie Lancashire ^ York- 
 shire Ry. Co. V. The East Lancashire Ry. Co., 25 L. J. Ex. (H. L.) 
 278.) 
 
 215. " Where two railways are worked by one 
 company, then in the calculation of tolls and charges
 
 BATES AND TERMINAL CHARGES. 231 
 
 for any distances in respect of traffic (whether pas- ch. xiii. 
 
 • T -I • Art. 215* 
 
 sengers, animals, goods, carriages, or vehicles) con- 
 
 veyed on both railways, the distances traversed shall 
 be reckoned continuously on such railways as if they 
 were one railway." (31 & 82 Vict. c. 119, s. 18.) 
 
 The special Act of a railway company provided that where 
 goods were carried on the company's railway, or partly on their 
 railway and partly on some other railway of which they were 
 joint owners, or which they had a right to use, for a less distance 
 than six miles, the company should be entitled to take tolls as for 
 six miles. The Act also provided that the tolls for goods carried 
 over the company's line, and over portions of other lines of which 
 they were part owners, or which they had a right to use, should 
 he computed as if the company's hue and the said portions of the 
 said other lines formed one railway. Groods were passed over the 
 line of which the company were sole owners for a distance of less 
 than six miles ; the same goods, on their transit to their ultimate 
 destination, passed over another line, of which the company was 
 part owner, for a distance of more than six miles. This latter 
 line was under the sole management of another company. The 
 goods were accompanied by two declaration notes, one made out in 
 the name of the first company, and the other in the name of the 
 other company, but the station of ultimate destination mentioned 
 in both notes was the same. It was held by the House of Lords 
 that the company was not entitled to split the contract ; that the 
 two lines must be treated as one ; and that the six mile clause was 
 not applicable. {Lancashire 8f Yorkshire Raihcay Com^Muy v. Gid- 
 low (No. 1), 42 L. J. Ex. (H. L.) 129.) 
 
 The usual distance now authorized in a short distance clause is 
 three miles. 
 
 216. "A list of all the tolls authorized by the special 
 Act to be taken, and which shall be exacted by
 
 232 'J^flE LAW OF CARRIERS. 
 
 ch. XIII. tlie company, shall be piiblishecl by the same being 
 — '■ — '- painted upon one toll-board or more in distinct black 
 letters on a Avhite ground, or ^yhite letters on a black 
 ground, or by the same being printed in legible 
 characters on paper affixed to such board, and by such 
 board being exhibited in some conspicuous place on 
 the stations or places where such tolls shall be made 
 payable." (8 Vict. c. 20, s. 93.) 
 
 '' The company shall cause the length of the railway 
 to be measured, and milestones, posts or other con- 
 spicuous objects to be set up and maintained along 
 the whole line thereof, at the distance of one quarter 
 of a mile from each other, with numbers or marks 
 inscribed thereon denoting such distances." (Sect. 94.) 
 ''No tolls shall be demanded or taken by the com- 
 pany for the use of the railway during any time at 
 which the boards hereinbefore directed to be exhibited 
 shall not be so exhibited, or at which the milestones 
 hereinbefore directed to be set up and maintained shall 
 not be so set up and maintained ; and if any person 
 wilfully pull down, deface or destroy any such board 
 or milestone he shall forfeit a sum not exceeding five 
 pounds for every such offence." (Sect. 95.) 
 
 The word "tolls" in sect. 95 of the Kailways Clauses Consohda- 
 tion Act, 1845, relates to tolls properly so called, and not to charges 
 for carrying passengers in the company's own carriages. {Brown 
 V. G. W. R>j. Co., 9 a. B. D. (C. A.) 744 ; 51 L.J. Q. B. (App.) 
 529.) 
 
 217. " Every railway company and canal company 
 shall keep at each of their stations and wharves a book
 
 RATES AND TERMINAL CHARGES. 233 
 
 or books showing every rate for the time being charged ^'^- xni. 
 
 for the carriage of traffic, other than passengers and 
 their luggage, from that station or wharf to any place 
 to which they book, including any rates charged under 
 any S23ecial contract, and stating the distance from that 
 station or wharf of every station, wharf, siding, or 
 place to which any such rate is charged. 
 
 '' Every such book shall during all reasonable hours 
 be open to the inspection of any person without the 
 payment of any fee." (36 & 37 Vict. c. 48, s. M.) 
 
 " Where a railway comj^any intend to make any 
 increase in the tolls, rates, or charges published in the 
 books required to be kept by the company for public 
 inspection, under section 14 of the Regulation of Rail- 
 ways Act, 1873, or this Act, they shall give by publi- 
 cation in such manner as the Board of Trade may 
 prescribe at least fourteen days' notice of such intended 
 increase, stating in such notice the date on which the 
 altered rate or charge is to take effect ; and no such 
 increase in the published tolls, rates, or charges of the 
 railway company shall have effect unless and until the 
 fourteen days' notice required under this section has 
 been given. Any company failing to comply with the 
 provisions of this section shall, for each offence, and 
 in the case of a continuing offence for every day during 
 which the offence continues, be liable, on summary 
 conviction, to a penalty not exceeding 5/." (51 & 52 
 Vict. c. 25, s. 33, jmst, Appendix.) 
 
 When traffic is received or delivered at any place on any railway 
 other than a station within the meaning of sect. 14 of the Regula- 
 tion of RaiLwajs Act, 1873, the railway company, on whose Une
 
 234 THE LAW OF CARRIERS. 
 
 Ch. XIII. such place is, sliall keep at the station nearest such place a book or 
 
 Art. 217. J. ' i. j- 
 '- ^ books showing every rate for the time being charged for the car- 
 riage of traffic other than passengers and their luggage, from such 
 place to any place to which they book, including any rates charged 
 under any special contract, and stating the distance from that place 
 of every station, wharf, siding, or place to which such rate is 
 charged. Every such book shall, during all reasonable hours, be 
 open to the inspection of any person without the payment of a fee. 
 (51 & 52 Yict. c. 25, s. 34.) 
 
 As to the penalty for contravening these sections, see next 
 Art. (218). 
 
 The Commissioners have held that the statutory direction, that 
 the books should be open to inspection, is equivalent to saying that 
 there should be a publication of the rates, and gives a general right 
 to inspect, and also to make copies or extracts. {Perlcins v. L. 8^ 
 N. W. El/. Co., 1 Ey. & Ca. Tr. Ca. 327.) 
 
 A company refusing to show their rate books at their stations 
 will have to pay the costs of any proceedings which the parties, in 
 the absence of information which the rate books would have 
 afforded, had "reasonable and probable cause " for taking, {Clonmel 
 Traders, ^r,. v. Waterford 8f Limerick Bij. Co., 4 Ey. & Ca. Tr. 
 Ca. 92.) 
 
 The book of rates which a railway company are required by this 
 section to keep at their station must show all rates, local as well as 
 through, which are being charged from the station where the book 
 is kept. Through rates need not be shown, in whole or in part, at 
 any other station than the one from which the traffic carried at 
 through rates is forwarded in the first instance. {Oxlade v. N. E. 
 By. Co. (No. 3), 3 Ey. & Ca. Tr. Ca. 35.) 
 
 A classification table is to be open to the inspection of any person 
 at every station without payment of any fee. (51 & 52 Yict. c. 25, 
 s. 33, i^ost, ArPExuix.) 
 
 218. '^ Where any charge shall have been made by 
 a company in respect of the conveyance of goods over
 
 RATES AND TERMINAL CHARGES. 235 
 
 their railway, on application in writing within one ch. xiii. 
 
 Art. <&lo, 
 
 week after payment of the said charge made to the 
 
 secretary of the company by the person by whom or 
 on whose accomit the same has been paid, the company 
 shall within fom^teen days render an account to the 
 person so ap^^lying for the same, distinguishing how 
 much of the said charge is for the conveyance of the 
 said goods on the railway, including therein tolls for 
 the use of the railway, for the use of carriages, and 
 for locomotive power, and how much of such charge 
 is for loading and unloading, covering, collection, 
 delivery, and for other exjoenses, but without par- 
 ticularizing the several items of which the last-men- 
 tioned portion of the charge may consist." (31 & 32 
 Vict. c. 119, s. 17.) 
 
 " The company shall witliin one week after applica- 
 tion in writing made to the secretary of any railway 
 company by any person interested in the carriage of 
 any merchandise which has been or is intended to be 
 carried over the railway of such company, render an 
 account to the person so applying in which the charge 
 made or claimed by the company for the carriage of 
 such merchandise shall be divided, and the charge for 
 conveyance over the railway shall be distinguished 
 from the terminal charges (if any), and from the dock 
 charges (if any), and if any terminal charge or dock 
 charge is included in such account the natm-e and 
 detail of the terminal expenses or dock charges in 
 respect of which it is made shall be specified." (51 
 & 52 Vict. c. 25, s. 33, post, Appendix.) 
 
 " The Railway Commissioners may from time to
 
 236 TEE LAW OF CARRIERS. 
 
 ch. XIII. time, on tlic application of any person interested, 
 
 Art. ^lo. 
 
 make orders with respect to any particular descrij)tion 
 
 of traffic, requiring a railway company or canal com- 
 pany to distinguish in the book mentioned in Article 
 217 how much of each rate is for the conveyance of 
 the traffic on the railway or canal, including therein 
 tolls for the use of the railwa}^ or canal, for the use of 
 carriages or vessels, or for locomotive power, and how 
 much is for other expenses, sjiecifying the nature and 
 detail of such other expenses. 
 
 "Any company failing to comply with the provi- 
 sions of this section shall for each offence, and in the 
 case of a continuing offence, for every day during 
 which the offence continues, be liable to a penalty not 
 exceeding five pounds, and such j)enalty shall be 
 recovered and aj)plied in the same manner as penalties 
 imposed by the Railways Clauses Consolidation Act, 
 1845, and the Railways Clauses Consolidation (Scot- 
 land) Act, 1845 (as the case may require), are for the 
 time being recoverable and applicable." (36 & 37 
 Vict. c. 48, s. 14.) 
 
 A railway company are not required, under sect. 14 of the Act 
 of 1873, to show how the through rates quoted by it are divided 
 between the railway companies receiving them {Wafkinson and 
 of //CIS V. Wrexham, ^r. R>/. Co. (No. 3), 3 Ry. & Ca. Tr. Ca. 446) ; 
 but where a railway company charge a through rate for merchan- 
 dise carried partly by land and partly by sea, see 51 & 62 Yict. 
 c. 25, s. 33, ss. 5, 7?o.sf, Appendix. 
 
 A railway company are bound to distinguish under this section, 
 although the rate charged is a lump sum rate fixed by the company 
 in order to compete with other lines. [Bailey v. L. C. 8f D. Ry. 
 Co., 2 By. & Ca. Tr. Ca. 99.)
 
 RATES AND TERMINAL CHARGES. 237 
 
 Where it was proved in evidence that nothinsr was included in Ch. xiii, 
 
 Art 218 
 
 a parcels rate except the carriage on the railway, the Commis- '■ ^ 
 
 sioners refused to make an order under sect. 14. [Rohcrtson v. 
 Midland Great Western, 2 Ey. & Ca. Tr. Ca. 409.) 
 
 Where, to an application under this section, the railway company 
 answered that the rates charged were mileage rates within their 
 Parliamentary powers, and were not made up of separate sums, 
 the Commissioners held that an order to distinguish such rates 
 should be made, as it did not follow that the whole of each rate 
 was for conveyance only, and that part was not for other expenses. 
 [Jones V. N. E. i?y. Co., 2 Ey. & Ca. Tr. Ca. 208.) 
 
 An order under sect. 14 will he made only as to rates which are 
 being charged by a railway company at the time of the application. 
 {Hall V. L. B. 8^ S. C. Ey. Co., 4 Ey. & Ca. Tr. Ca. 398.) 
 
 The withdrawal of rates by a railway company, after an aj)pli- 
 cation has been made to the Eailway Commissioners, will not 
 disentitle an applicant to an order under sect. 14, calling on the 
 company to distinguish how the rate is made up. {Bernj v. L. C. 
 8f D. Ry. Co., 4 Ey. & Ca. Tr. Ca. 310.) 
 
 It being the duty of a railway company to inform any jierson 
 interested, and applying to it for information, how much of each 
 local and through rate in its entirety is for conveyance, and how 
 much is for other expenses, specifying the nature and detail of 
 such other expenses, if the information is withheld, the Eailway 
 Commissioners will, on an application under sect. 14, order it to be 
 given, and to be made public by proper entries in the rate book, 
 and will order the railway company to pay the costs of the pro- 
 ceedings which became necessary for the purpose of obtaining such 
 information. (Cairns v. iV. E. Rij. Co., and Coxon v. N. E. Rij. 
 Co. (No. 1), 4 Ey. & Ca. Tr. Ca. 221 ; Watkinson and others v. 
 Wrexham, Mold, and Connah's Quay Ey. Co. (No. 3), 3 Ey. & Ca. 
 Tr. Ca. 446.) 
 
 The words *' specifying the nature and detail of such other 
 expenses " require a railway company to state in their rate book, 
 to which the order made applies, what terminal services they
 
 238 THE LA W OF CARRIERS. 
 
 Ch. XIII. undertake to perform with regard to the particular traffic, and 
 Art. 218. ^ ^ . . J 
 now much they charge for each of such terminal services, and a 
 
 railway company does not sufficiently comply with the section 
 by giving a list of the various terminal services which they 
 perform, and stating what their total charge is for the whole 
 of these services. {Colman v. G. E. Ry. Co., 4 Ey. & Ca, Tr. 
 Ca. 108.) 
 
 The details to be given under sect. 14 must be such as to enable 
 the person paying the rates and the Commissioners, should appli- 
 cation under sect. 15 be made to them, to say whether an expense 
 charged for in the rate is an expense for which the railway company 
 can properly charge, and whether the amount charged for that 
 expense is a reasonable amount or not. [BircJigyove Steel Co. v. 
 Midland Ry. Co., 5 Ey. & Ca. Tr. Ca. 229.) 
 
 219. Every railway and canal company, at the 
 request of any other such company or of any person 
 interested in through traffic, shall afford all due and 
 reasonable facilities for the receiving, forwarding, and 
 delivering of through traffic to and from the railway 
 or canal of any other such company at through rates, 
 tolls, or fares. (51 & 52 Vict. c. 25, s. 25.) 
 
 As to the granting of such facilities, see post, Art. 253. 
 
 220. If a railway company charge for conveyance 
 of goods the extreme sum sanctioned by their special 
 Act, they cannot limit their liability as insurers. But 
 if a railwa}' company offer to carry at less than their 
 maximum rates, in consideration of being relieved 
 from loss by accidents, and give the customer an
 
 RATES AND TERMINAL CHARGES. 239 
 
 alternative of carryiiiff liis ffoods at the maximum ch. xiii. 
 
 ■^ ^ ° ^ ^ ^ Art. 220. 
 
 or insured rate, then such a condition, if accepted 
 
 by the consignor, is reasonable and valid. [Ante, 
 Art. 171.) 
 
 But even at the lower alternative rate the company cannot 
 contract themselves out of liahility for gross negligence. 
 
 See also Art. 168, as to a special contract for conveyance of 
 goods. 
 
 221. Whenever any person receiving or sen ding- 
 er desiring to send goods by any railway is of opinion 
 that the railway company is charging him an unfair 
 or an unreasonable rate of charge, or is in any other 
 resjDCct treating him in an oppressive or unreasonable 
 manner, such person may complain to the Board of 
 Trade. 
 
 The Board of Trade, if they think that there is 
 reasonable ground for the comj)laint, may thereupon 
 call upon the railway company for an explanation, 
 and endeavour to settle amicably the differences 
 between the complainant and the railway comj^any. 
 (51 & 52 Vict. c. 25, s. 31.) 
 
 " For the purpose aforesaid, the Board of Trade ma}^ appoint 
 either one of their own officers or any other competent person to 
 communicate with the complainant and the railway company, and 
 to receive and consider such explanations and communications as 
 may be made in reference to the complaint ; and the Board of 
 Trade may pay to such last-mentioned person such remuneration 
 as they may think fit, and as may be approved by the Treasury. 
 
 " A complaint under this section may be made to the Board of
 
 240 THE LAW OF CABRIERS. 
 
 Ch. XIII. Trade by any of tlie authorities mentioned in sect. 7 of this Act 
 Art. 221. . 
 (see post, Appendix) in any case in which, in the opinion of any 
 
 of such authorities, they or any traders or persons in their district 
 are heing charged unfair or unreasonable rates by a railway com- 
 pany ; and all the provisions of this section shall apply to a 
 complaint so made as if the same had been made by a person 
 entitled to make a complaint under this section." (51 & 52 Vict. 
 c. 25, s. 31, jjo.sY, Appendix.) 
 
 222. Where any question or disjoute arises, in- 
 volving the legality of any toll, rate, or charge, or 
 portion of a toll, rate, or charge, charged or sought 
 to be charged for merchandize traffic by a railway 
 company or a canal company, the Railway and Canal 
 Commissioners have jurisdiction to hear and determine 
 the same, and to enforce payment of such toll, rate, 
 or charge, or so much thereof as the Commissioners 
 decide to be legal. (51 & 52 Vict. c. 25, s. 10.) 
 
 Until the passing of this Act the Railway Commissioners had 
 no jurisdiction in the matter of the charges made by railway 
 companies, unless they were open to objection as being made in 
 contravention of sect. 2 of the Railway and Canal Traffic Act, 
 1854, or unless they were in the nature of terminal charges. 
 
 As to the Commissioners' jurisdiction over rates which cause an 
 undue preference or undue prejudice, see post, Ai't. 260. 
 
 223. If a person sending goods, in ignorance of 
 the fact that the rates charged to him exceed those 
 authorized by law, pays the amount demanded by 
 the railway company, he can, upon discovering the 
 truth, sue the company, and recover as damages
 
 BATES AND TERMINAL CHARGES. 241 
 
 tlie difference between the sum paid and that which ch. xiii. 
 
 Art 22*^ 
 
 the company was by law entitled to demand. (Evershed — '■ '- 
 
 V. L. cV N. W. Rij. Co., 3 App. Cas. 1029.) 
 
 In the above case the illegal charge was as to terminals ; but it 
 is equally true if the overcharge is in the mileage rate. 
 
 " Where the Eailway and Canal Commissioners have jurisdiction 
 to hear and determine any matter, they may, in addition to or in 
 substitution for any other relief, award to any complaining party 
 who is aggrieved such damages as they find him to have sus- 
 tained ; and such award of damages is to be in complete satisfaction 
 of any claim for damages, including repayment of overcharges, 
 which but for this Act such party would have had by reason of 
 the matter of complaint." (51 & 52 Vict. c. 25, s. 12.) 
 
 There Is a proviso in that section that such damages are not to 
 be awarded unless complaint has been made to the Commissioners 
 within one year from the discovery by the party aggrieved of the 
 matter complained of. {Post, Appendix.) 
 
 11. — Terminal Services and Charges. 
 
 224. The Eailway Commissioners have power to 
 hear and determine any question or dispute which 
 may arise with respect to the terminal charges of any 
 railway company, where such charges have not been 
 fixed by any Act of Parliament, and to decide what 
 is a reasonable sum to be paid to any company for 
 loading and unloading, covering, collection, delivery, 
 
 M.
 
 242 THE LA W OF CARRIERS. 
 
 ch. XIII. and otlier services of a like nature ; any decision of 
 
 Art 224. ' ./ 
 
 — '■ — '- the Commissioners under this section being binding 
 on all Com-ts and in all legal proceedings whatsoever. 
 (86 & 37 Vict. c. 48, s. 15.) 
 
 This enactment gives the Eailway Commissioners power, in case 
 of dispute, to determine what is a reasonable sum to be charged for 
 terminals. 
 
 No definition of " terminals" has hitherto been attempted in an 
 Act of Parliament, but for the purpose of the Eailway and Canal 
 Traffic Act, 1888, " terminal charges " are to include " charges in 
 respect of stations, sidings, wharves, depots, warehouses, cranes, 
 and other similar matters, and of any services rendered thereat." 
 (Sect. 55.) 
 
 In the report of the Select Committee on Eailways (Eates and 
 Fares), 1882, " terminals" are defined to be " accommodation and 
 conveniences afforded, and services performed in respect to the goods 
 at the receiving and delivering stations," and they recommended 
 that " terminal" charges be recognised, but subject to pubhcation 
 by companies, and in case of challenge, to sanction by the Eailway 
 Commissioners. 
 
 As to the distinction between "station terminals " and " handling 
 terminals," see ante, p. 227. 
 
 225. Where the special Act of a railway company 
 enacts that '' The maximum rates of charges to be 
 made by the company for the conveyance of animals 
 and goods, including the tolls for the use of their rail- 
 ways and waggons or trucks, and for locomotive power, 
 and every other expense incidental to such conveyance 
 (except a reasonable sum for loading, covering, and 
 unloading the goods at any terminal station of such 
 goods, and for delivery and collection, and any other
 
 RATES AND TERMINAL CHARGES. 243 
 
 services incidental to the duty or business of a carrier, c^- xm. 
 
 . -^ ' Art. 225. 
 
 where such services, or any of them, arc or is per- 
 
 formed by the comj^any), shall not exceed" certain 
 sums prescribed; station accommodation, the use of 
 sidings, weighing, checking, clerkage, watching, and 
 labelling, provided and performed by the company in 
 respect of goods traffic carried by them as carriers, 
 may be, and ^;r/w«rt facie arc, '' services incidental to 
 the duty or business of a carrier " within such enact- 
 ment : whether they are so in any particular case is a 
 question of fact for the Railway Commissioners to 
 decide (under sect. 15 of the Regulation of Railways 
 Act, 1873), and if found by them to be so, such ser- 
 vices may be the subject of a separate reasonable 
 charge in addition to the rates prescribed. {Hall v. 
 London^ Brighton, Sfc. Bij. Co., 15 Q. B. D. 505 ; 5 Ry. 
 & Ca. Tr. Ca. 28.) 
 
 As this work is intended only as a digest of the existing law, it 
 will not be proper to discuss the vexed question of— whether the 
 maximum rates for conveyance include station accommodation, 
 &c. The views of the Railway Commissioners and of the Divisional 
 Court are fully stated in the reports of IlaJVs case, and this 
 Article states what the decision of a Divisional Court was on the 
 subject. 
 
 226. The legal meaning in the special Acts of rail- 
 way companies of the words ''load" and ''unload" is 
 no other than the sense in which they are used in 
 ordinary English, and the words are not applicable to 
 things which have their own proper words to describe 
 them. {Kempson v. G. W. B/j. Co., 4 Ry. & Ca. Tr. 
 Ca. 426.) 
 
 r2
 
 244 TEE LA W OF CARRIERS. 
 
 ch. XIII. The terms ''loading-" and "imloadino-" do not 
 
 Art. 226. ^ f 
 
 comprehend more than the labour of packing and mi- 
 
 packing a goods train or a goods truck, whether done 
 by hand or by machiner}^. [Bcrri) v. L. C. 6f D, llfj, 
 Co., 4 llj. & Ca. Tr. Ca. 310.) 
 
 Upon an application to fix the sums to be paid to the railway 
 company for performing the services of loading and unloading 
 iron rods cut into lengths and rolled round a cylinder, two feet or 
 so in diameter, into coils, which weighed about two hundredweight 
 each, and of which fifty or sixty made a load for a truck, it was 
 proved that. the senders and receivers of the goods employed their 
 own carts, and their carters put the carts by the side of the trucks 
 and assisted in the work of loading and unloading, the company's 
 porters performing the larger share of the work. The Commis- 
 sioners found that the cost to the company at the sending station 
 was 4ld. a ton, and at the receiving station id. a ton, and held, 
 that taking this cost, with an addition for profit, a reasonable 
 charge for such assistance in loading and unloading respectively 
 was od. a ton; and that checking was a service not properly 
 embraced in the term loading, and which should not be reckoned 
 as part of the expense of loading. {Kcnqison. v, G. W. By. Co., 
 supra.) 
 
 There can be no average rate for loading and unloading. Each 
 case must depend on its own circumstances. If the terminal 
 charges exceed the actual cost to the railway company, and a rea- 
 sonable profit, then they are unreasonable. 
 
 As to rebates, see Undue Preference, post, Art. 276. 
 
 227. Where the special Act of a railway company 
 enacts that in addition to the maximum mileage rates 
 the company may charge a reasonable sum for covering 
 of goods at any terminal station of such goods, the 
 word "covering" includes not only the labour of uu-
 
 ) 
 
 MATES AND TERMINAL CHARGES. 245 
 
 folding and making fast tlio sheets over a loaded ^^- ^027' 
 
 Avaggon, but also the use of the sheets. (Ilall 6j' Co. v. 
 
 London, Bri(/hton ^" South Coast Rij. Co., 4 Ry. & Ca. 
 Tr. Ca. 398.) 
 
 If the special Act contains the words ^'j^roviding 
 covers," this includes not only the supply of sheets, 
 but also the labour of covering waggons with them. 
 {Coxon V. N. E, Ry. Co. (No. 2), 4 Ry. & Ca. Tr. Ca. 
 284.) 
 
 In HaWs case it was held tliat, as regards the applicants' traffic, 
 Qd. a sheet was a reasonable sum for the use of a sheet, it 
 being proved that a sheet used in that traffic would make two 
 journeys a week ; that a reasonable charge for the labour of 
 covering the loaded truck was 3(7. if one sheet only was used, and 
 2d. each sheet if more than one. 
 
 In Coxon^s case, the special Act of a railway company enacted 
 that it should be lawful for them to demand, in addition to the 
 maximum mileage rates, a " reasonable sum for loading, unloading, 
 collecting, receiving, or delivering, and for providing covers for 
 minerals, goods, articles, or animals." The Commissioners held, 
 that the words " providing covers " included not only the supply of 
 sheets, hut also the labour of covering waggons with them. 
 
 Upon an application to the Commissioners to decide what were 
 reasonable sums to be paid to the railway company for terminal 
 services in respect of hay and straw traffic, it Avas proved that the 
 railway company at the sending station provided a truck and two 
 sheets for covering the load, which amounted to one and a-half 
 tons, and that a railway porter assisted the consignor's servant in 
 loading and drawing the sheets over the load and fastening them ; 
 that at the receiving station a porter untied the sheets, and then 
 the consignee unloaded the truck and removed the hay or straw, 
 and that if he detained the truck beyond three clear days he was 
 charged demurrage.
 
 246 THE LAW OF CARRIERS. 
 
 Ch. XIII. It was furtlier proved that the railway porter covered the loaded 
 
 Art. 227. . . 
 
 waggon m twenty minutes, and that with the assistance of the 
 
 consignor's servant he was able to load also in the same space of 
 time ; that the uncovering at the receiving station took ten minutes; 
 but as the unloading was generally spread over two or three days, 
 and the uncovering and re-covering the load had to be repeated, 
 another ten minutes should be added on that account. It was held, 
 that 9(/. a sheet was a reasonable sum for providing covering, 
 assuming that a sheet used in that traffic would not make more 
 than one joui'ney a week, that a reasonable charge for covering the 
 loaded w^aggon was 2d. a ton ; for assistance in loading, 2d. a ton ; 
 for uncovering and re-covering the load at the receiving station, 
 2d. per ton. 
 
 228. Weighing goods carried on a railway at a 
 railway station for the convenience of the consignees 
 is incidental to the statutory powers of the railway 
 com]3any, and not ultra vires, and an action may be 
 maintained by the company to recover charges for 
 weighing them. {L. 6f N. W. Rij. Co. and G. W. Ry. 
 Co. V. E. Price ^ ,Son, 11 Q. B. D. 485 ; 52 L. J. Q. B. 
 D. 754.) 
 
 In that case the railway company carried coals on their line for 
 the defendants, who were coal merchants, and dehvered them at the 
 defendants' wharf, which adjoined a siding at one of the company's 
 stations, and they allowed the defendants, in consideration of 
 jjaying a specified reasonable charge, to weigh out the coals to 
 customers by a machine belonging to the company, placed in the 
 station yard. The company had no express statutory power to 
 make charges for the use of their weighing-machines. It was held, 
 that the charges were not ultra tires, and the company could main- 
 tain an action to recover them from the defendants. 
 
 As to whether when the special Act of a railway company com-
 
 RATES AND TERMINAL CHARGES. 247 
 
 pels tliem to weigh coal at tlio point of discharge, sucli weigliing is Ch. xili. 
 
 a facility for delivery under sect. 2 of the Eailway and Canal 
 
 Traffic Act, 1854, see post, p. 259. 
 
 III. — The Lien of a Railway Company. 
 
 229. Eailway companies acting as carriers are 
 entitled by tlie common law to a lien on the goods, 
 and, unless they have entered into some special con- 
 tract by which the right is waived, have a right to 
 detain goods which they have received to be carried 
 until the charges of carrying have been paid to them by 
 the owner or employer. But railway companies have 
 only the common law lien to rely upon. Section 97 of 
 th.e Railways Clauses Consolidation Act, 1845, which 
 gives a general power to detain and sell all goods in case 
 of non-payment of tolls due in respect of any carriage 
 or goods, applies only to tolls due for the use of the 
 line by persons conveying goods in their own carriages, 
 and not to tolls or charges due for goods carried by 
 a railway company as carriers. ( Wallis v. L. ^' S. W. 
 Ry. Co,, L. R. 5 Ex. G2; 39 L. J. Ex. 57; Scottkh N. 
 E. Ri/. Co. V. Anderson, 1 Sess. Ca. (3rd Ser.) 1056.) 
 
 A railway company, therefore, cannot sell goods which tlioy 
 have conveyed as carriers, and over which they have a lien. (See 
 ante J Art. 119.) 
 
 " If, on demand, any person fails to pay the tolls due in respect 
 of any carriage or goods, it shall be lawful for the company to 
 detain and sell such carriage, or all or any part of such goods, or if 
 the same shall have been removed from the premises of the com-
 
 248 TEE LAW OF CARRIERS. 
 
 Ch. XIII. pany, to detain and sell any other carnage or goods within such 
 ^^' premises belonging to the party liable to pay such tolls, and out of 
 
 the moneys arising from such sale to retain the tolls payable as 
 aforesaid, and all charges and expenses of such detention and sale, 
 rendering the overplus, if any, of the moneys arising by such sale, 
 and such of the carriages or goods as shall remain unsold, to the 
 person entitled thereto ; or it shall be lawful for the company to 
 recover any such tolls by action at law." (8 & 9 Yict. c. 20, 
 s. 97.) 
 
 Notwithstanding the definition of toll in the interpretation clause 
 as including "any rate or charge," &c. (see ante, Art. 212), this 
 section has been held in the above cases to apply to tolls only, and 
 not to the charges made by a company as carriers. 
 
 A sum claimed for sending back empty carriages is not a " toll " 
 within the meaning of section 97 of the Eailways Clauses Act, 1845. 
 {Field V. Neirport, Aherrjavennu and Hereford Rij. Co., 27 L. J. Ex. 
 396 ; 3 H. & N. 409 ; and see Grantham Canal Namgation v. Eall, 
 14 M. & W. 880.) 
 
 A trader entered into an agreement with a railway company by 
 which the company were to render a monthly account of their 
 charges for freight of goods carried by them for the trader, and 
 the company were to have a general lien for all moneys due to 
 them on all goods belonging to him in their hands. He after- 
 wards filed a liquidation petition, and a receiver and manager of 
 his business was appointed, who, in order to carry on the business, 
 bought goods with his own money and sent them by the company's 
 railway. The company detained the goods under their lien, and 
 only delivered them on payment of 50/., which was due to them 
 for freight. The receiver paid the 50/. under protest, and the 
 Com-t of Bankruptcy ordered the company to repay it :— Held, 
 that the Court of Bankruptcy had no jurisdiction to make the 
 order. But, senible, that the company would have no defence to 
 an action by the receiver for the 50/. {Ex parte G. IF. By. Co., 
 In re Biishell, 22 Ch. D. (C. A.) 470 ; 52 L. J. Ch. (App.) 
 734.)
 
 RATES AND TERMINAL CnARGL'S. 249 
 
 The plaintiff consigned certain goods for carriage by the do- Ch. xiii. 
 
 fendants to the consignee's addi-ess. The consignment note, which '- '- 
 
 was signed by the phaintiff, contained a condition that " all goods 
 delivered to the company will be received and held by them subject 
 to a general lien for money due to them, whether for carriage of 
 such goods or for other charges." The Court held that the lien 
 continued so long as the company held the goods, and was in no 
 way affected by the refusal of the consignee to accept the goods 
 after they had arrived at their destination. ( Wcstjield v. G. W. 
 By. Co., 52 L. J. Q. B. 276.) 
 
 As to the effect of the consignee's bankruptcy upon a general 
 lien constituted by agreement in favour of the company, see 
 Wiltshire Iron Co. v. Gt. Western By. Co. (L. E. 6 Q. B. 101). 
 
 " If a carrier conveys goods under a particular notice, that notice 
 and the acceptance of it by the customer may constitute a contract 
 which will give him a general lien." Per Channell, B., in Walli>iS 
 case, supra. 
 
 Under the first part of sect. 97 of the Eailways Clauses Con- 
 solidation Act, 1845, which provides that on failure " to pay the 
 tolls due in respect of any carriage or goods," the company may 
 detain and sell " such carriage, or all or any part of such goods," 
 the company has no right to detain and sell a carriage for default 
 in payment of tolls due only in respect of the goods carried on it. 
 
 By an Act with which the Eailways Clauses Consolidation Act 
 was incorporated, a railway company was authorized to charge a 
 certain rate per ton per mile for coal carried on its line, wdth addi- 
 tional rates per ton per mile if the company supplied carriages and 
 engines, but no mention was made of a toll for carriages conveyed 
 on their line. The B. Company conveyed coals on the line in their 
 own carriages, the railway company supplying power, and render- 
 ing accounts by which they charged the authorized rates per ton 
 per mile for the coals and power, but did not charge any toll for 
 the carriages. It was held by the Court of Appeal that the rail- 
 way company could not detain and sell the carriages for the tolls 
 due.
 
 250 THE LAW OF CARRIERS. 
 
 Ch. XIII. Semhie, that tlie latter part of the section, which enables the corn- 
 Art 229 
 — '- '- pany to detain and sell for tolls due to them any carriages or goods 
 
 on the premises of the company belonging to the persons owing the 
 tolls, is not confined to carriages or goods to which the debtor is 
 absolutely entitled ; but if he has only a partial interest the com- 
 pany can only sell such interest as he has. 
 
 Whether under the latter part of the section carriages can be 
 detained and sold for tolls due on goods, qucBrc. {North Central 
 Wagon Co. v. M. S. c^ L. Ey. Co., 35 Ch. D. 191 ; 55 L. J. Ch. 780.)
 
 ( 251 ) 
 
 CHAPTER XIV. 
 
 THE OBLIGATIONS OF A RAILWAY COMPANY TO AFFORD DUE 
 AND REASONABLE FACILITIES FOR THE RECEIVING AND 
 FORWARDING OF GOODS AND PASSENGER TRAFFIC. 
 
 I. — GrENERALLY. Arlichs. 
 
 1. Sect. 2 of the Railway and Canal Traffic Act, 1854 230 
 
 2. Public convenience to be considered 231 
 
 3. Interests of Railway Traffic to be considered 232 
 
 4. Requirements of Special Acts of Railway Companies 233 
 
 II. — On a Eailway Company's own Line under Sect. 2 op 
 THE Eailway and Canal Teaffic Act, 1854. 
 
 5. Sect. 2 of the Railway and Canal Traffic Act., 1854 234 
 
 6. Unauthorized Rates and Fares 235 
 
 7. Station Accommodation , 236 
 
 8. Train Accommodation 237 
 
 9. Private Siding Accommodation 238 
 
 10. Junction with Private Siding 239 
 
 11. Collection of Traffic ■. .240, 241 
 
 12. Delivery at a 2iarticular Station 242 
 
 III. — On Through Traffic under Sect. 2 of the Eailway 
 AND Canal Traffic Act, 1854. 
 
 13. Sect. 2 of the Railway and Canal Traffic Act, 1854 243 
 
 14. Individual or Public Grievance 244 
 
 15. Continuous Line of Railway 245 — 247 
 
 IC. Running Powers , , 248
 
 252 THE LAW OF CARRIERS. 
 
 Articles 
 
 17. Through Booking , 249 
 
 18. Correspondence of Trains 250 
 
 19. Diversion of Traffic 251 
 
 20. Order requiring two or more Railway Connyanies to act jointly . . 252 
 
 Art. 230. 
 
 IV. — Thro can Eates tin'dee Sect. 25 of the Eailway and 
 CvNAL Traffic Act, 1888. 
 
 21. Sect. 25 of the Railway and Canal Traffic Act, 1888 253 
 
 22. What Railway Company may apply for 254 
 
 23. Rate must he required in interest of the Public 255 
 
 24. Alternative and Reasonable Route 256 
 
 25. Apportionment of Through Rates , . 257 
 
 26. Route by Land ajid Sea 258 
 
 I. — Geneeally. 
 
 Ch. XIV. 230. Every railway company, canal company, and 
 
 railway and canal comj)any, shall, according to their 
 respective powers, afford all reasonable facilities for 
 the receiving and forwarding and delivering of traffic 
 (which, by interpretation clause, includes passengers 
 and their luggage, goods and animals) upon and from 
 the several railways (which, by inter^n-etation clause, 
 includes station and siding) and canals belonging to 
 or worked by such companies respectively, and for the 
 return of carriages, trucks, boats, and other vehicles, 
 and no such company shall make or give any undue 
 or unreasonable preference or advantage to or in 
 favour of any particular person or company, or any 
 particular description of traffic, in any respect what- 
 soever, nor shall any such company subject any
 
 DUE AND EEASONABLE FACILITIES. 253 
 
 particular person or company, or any particular ch. xiv. 
 
 Art. (^oi/> 
 
 description of traffic, to any undue or unreasonable 
 
 prejudice or disadvantage in any respect whatsoever; 
 and every railway company and canal company and 
 railway and canal company Laving or working rail- 
 ways or canals which form part of a continuous lino 
 of railway or canal or railway and canal communica- 
 tion, or which have the terminus, station, or wharf of 
 the one near (i.e.^ by interpretation clause of the Act, 
 within one mile) the terminus, station, or wharf of 
 the other, shall afford all due and reasonable facilities 
 for receiving and forwarding all the traffic arriving 
 by one of such railways or canals by the other, with- 
 out any unreasonable delay, and without any such 
 preference or advantage, or prejudice or disadvantage, 
 as aforesaid, and so that no obstruction may be offered 
 to the public desirous of using such railways or canals 
 or railways and canals as a continuous line of com- 
 munication, and so that all reasonable accommodation 
 may, by means of the railways (which includes 
 stations and sidings) and canals of the several com- 
 panies, be at all times afforded to the public in that 
 behalf. (Railway & Canal Traffic Act, 1854, 17 & 
 18 Vict. c. 31, s. 2.) 
 
 See Dickson v. Great Northern E)/. Co., ante, pp. 120, 121. 
 
 From 1854 to 1873 the remedy under this section was an appli- 
 cation to the Coiu-t of Common Pleas. Since 1873 the jurisdiction 
 has been transferred to the Railway Commissioners. 
 
 The Select Committee of 1872 stated in their Report that the 
 applications to the Court of Common Pleas were almost all com- 
 plaints of undue preference, and that the branch of the Act
 
 254 'J' HE LAW OF CARRIERS. 
 
 Ch. XIV. relating to traffic facilities had failed altogether to be applied, not 
 
 Art 230 
 
 ; L because that branch did not need to be enforced as much as the 
 
 other branch, but because of the difficulty of questions connected 
 with traffic arrangements. Since the passing of the Act of 1873 
 many applications have been made to the Commissioners founded 
 on complaints of companies not affording proper traffic facilities. 
 
 In 1845 an Act (8 & 9 Yict. c. 42) was passed enabling canal 
 companies to become carriers of goods upon their canals. 
 
 Canal companies, as a rule, not being carriers on their own 
 canals, and more than half the canals in England and Ireland 
 being owned or controlled by railway companies, the subject of 
 the carriage of goods by canal has ceased to be one of much 
 practical importance. There are no independently-owned canals 
 in Scotland. An exhaustive work on the " law relating to canals " 
 was published in 1885 under that title, by Mr. E. Gr. "Webster. 
 
 " Canals are able to compete with railways in the carriage of 
 sundry classes of traffic, and railway companies have had recourse 
 to various means to interfere with the independence of canals, and 
 to obtain a control over them. Many railway companies are canal 
 companies as well, and own canals which are portions of a con- 
 tinuous navigation, and it was quite necessary that their policy as 
 railway companies to prevent by high tolls the carriage by water 
 of competing or through traffic should be met by independent 
 canal companies having a right to call upon them to agree to 
 through tolls." (Fourth Annual Eeport of Eailway Commis- 
 sioners.) 
 
 Some of the provisions of the Eailway and Canal Traffic Act, 1888 
 (j50s^, Appendix), are intended to make canals more independent of 
 railway companies, and better able to compete with them. 
 
 231. To induce the interference of the Rail way- 
 Commissioners on a question of ''reasonable facili- 
 ties," apart from undue preference, it is generally- 
 necessary to prove a public inconvenience, and not
 
 DUE AND REASONABLE FACILITIES. 255 
 
 merely an individual grievance. [Barret y. G. N. Ry. ^^^.-^g^' 
 Co. and Midland Ry. Co., 1 %. & Ca. Tr. Ca. 38; 26 — — '- 
 L. J. C. P. 83 ; 1 C. B. (N. S.) 423, post, pp. 299, 346 ; 
 BeadellY. E. C. Ry. Co., 1 Ey. & Ca. Tr. Ca. 56; 26 
 L. J. C. P. 250 ; Fainter v. L. B. c^ 8. C. Ry. Co., 1 Ry. 
 & Ca. Tr. Ca. 58 ; 2 C. B. (N. S.) 702 ; Ilfracomhe PuMic 
 Conveyance Co. v. L. Sf S. W. Ry. Co., 1 Py. & Ca. Tr. 
 Ca. 61 ; Addison on Contracts, 8tli ed., p. 575.) 
 
 These cases show that public convenience is probably the standard 
 by which the absolute accommodation to be granted by railway 
 companies to the public should be determined, when the question 
 is unincumbered by any considerations of undue preference. 
 
 Barret's application was refused, as being that of a person 
 seeking to have a complicated traffic arrangement re-arranged 
 for his own peculiar benefit. In that case Williams, J., said : 
 " If applicant had satisfied me that public convenience required 
 what he asks, and the accommodation could reasonably be 
 granted, I should have paused considerably before assenting to 
 the rule being discharged." Oresswell, J., said : " In considering 
 what was a reasonable amount of accommodation, regard must be 
 had to the convenience of the general traffic of the company." 
 
 In Beadeirs case and Painter's, and that of the Bfracombe Con- 
 veyance Co., the complainants were unsuccessful, because the Court 
 was not satisfied that there was a substantial inconvenience to the 
 public from the cab arrangements made for them by the company. 
 
 232. The Railway and Canal Traffic Act, 1854, 
 s. 2, does not compel a railway company to find 
 reasonable accommodation for the public f urtlier than 
 as it is in the interests of railway traffic that it should 
 be found. [Holyhead Local Board v. London and North 
 Western Ry. Co., 3 Ry. & Ca. Tr. Cas. 37.)
 
 256 THE LAW OF CARRIERS. 
 
 Ch. XIV. In that case an application to the Commissioners under that 
 
 Art. 232. . . 
 
 section to order a railway company to construct a foot-hridge over 
 
 their railway in their station at H. for the more convenient ingress 
 
 and egress of foot-passengers from and to the town was refused, 
 
 on the ground that such a bridge was not a due and reasonable 
 
 facility under the circumstances. 
 
 The Commissioners in delivering judgment said : — " This is an 
 application to us to require the London and North Western Rail- 
 way Company to erect a foot-bridge in their station at Holyhead, 
 with a view to shortening the distance between the town and their 
 passenger station. . . . 
 
 " The Traffic Act, 1854, does not compel a railway company to 
 find reasonable accommodation for the public further than as it is 
 in the interests of railway traffic that it should be found ; but it 
 has been felt to be a grievance by the applicants that there was 
 not also more endeavour made in designing the new station to 
 connect the two sides, between which it was interposed, by cross 
 roads, and that communication consequently between the town 
 west of the station and the districts east of it, known as Black 
 Bridge and Turkey Shore, has become less easy and direct than it 
 was. ... A station cannot be expected to have every possible 
 facility, and it is enough if on the whole and with the particular 
 facility here in question wanting Holyhead local passenger traffic 
 is well of! in respect of station accommodation. It is, in fact, 
 more than usually so, for its size, for it has a station which is 
 more than in proportion to its requirements, being adapted as well 
 to a great through traffic, of which the railway company are 
 carriers both at sea and by railway, and with a view to which it 
 has been provided with the best appliances for facilitating the 
 forwarding of traffic. By these local traffic also is benefited, and 
 on the whole the claims of traffic of that character seem to us to 
 be fairly met. "We are of opinion, therefore, that a case has not 
 been made out for an order against the company, and the appli- 
 cation must be refused with costs."
 
 DUE AND REASONABLE FACILITIES. 257 
 
 233. Where any enactment in a special Act — 5^;Y„y- 
 
 *^ Art). <&i5t5. 
 
 (a) contains provisions relating to traffic facilities, im- 
 
 due preference, or other matters mentioned in sect. 2 
 of the Railway and Canal Traffic Act, 1854; or (b) 
 requires a company to which this part of this Act ajD- 
 plies to provide any station, road, or other similar work 
 for public accommodation; or (c) otherwise imposes on 
 a company to which this part of this Act applies any 
 obligation in favour of the public or any individual, or 
 where any Act contains provisions relating to private 
 branch railways or private sidings, the Commissioners 
 shall have the like jurisdiction to hear and determine 
 a complaint of a contravention of the enactment as the 
 Commissioners have to hear and determine a complaint 
 of a contravention of sect. 2 of the Railway and Canal 
 Traffic Act, 1854, as amended by subsequent Acts. 
 (51 & 52 Vict. c. 25, s. 9.) 
 
 The Railway and Canal Traffic Act, 1854, s. 2, re- 
 quires facilities to be given according to the j^owers of 
 railway companies, and as special Railway Acts make 
 the powers of some companies larger than those of 
 others, so they also extend or limit the facilities they 
 give to the public, and thus the general enactment as 
 to affording facilities has to be read and considered 
 with reference to the language of any sj^ecial clauses 
 regarding them. [Thar sis Sulphur and Copi^er Co. v. 
 L. andN. W. Rij, Co., 3 Ry. & Ca. Tr. Ca. 455.) 
 
 In that case upon complaint by persons occupying works or 
 manufactories adjacent to the railway that the railway company 
 did not supply sufficient waggons for the traffic on the railway, it 
 was held, that although the duty cast upon the railway company 
 
 M. s
 
 258 THE LAW OF GARRIERB. 
 
 Ch. XIV. by tbe special Act was limited to eases where there was a request 
 
 Art 233 •/ •«- 
 
 '■ ^ for Avaggons by members of a particular class, and where also 
 
 only particular lines of railway were required to be used, yet 
 where the duty did arise, it determined what was a reasonable 
 facility within the meaning of sect. 2 of the Traffic Act, 1854, as 
 effectively as if it were a duty of a more general kind or one 
 which applied under any circumstances ; and the railway company- 
 were enjoined to afford all reasonable facilities for the receiving, 
 forwarding, and delivery of the applicants' ore passing exclusively 
 over the lines transferred having regard to the above section. 
 
 The Commissioners, in delivering judgment, said : — " By the 
 Act for transferring the undertaking of the St. Helen's Com- 
 pany to the London and North "Western Company, the London 
 and North Western Company, when requested so to do by 
 any person occupying works or manufactories adjacent to and 
 having sidings connected with the railways hereby transferred, 
 is at all reasonable times and with all due diligence to provide 
 waggons proper and sufficient for the conveyance of all traffic 
 passing exclusively on the lines of railway hereby transferred, 
 except coal, slack, and refuse material. The duty cast upon the 
 respondents by this section is limited to cases where there is a 
 request for waggons by members of a particular class, and where 
 also only particular lines of railway are required to be used, but 
 where the duty does arise, it determines what is a reasonable 
 facility within the meaning of the Traffic Act as effectively as if it 
 were a duty of a more general kind or one which applied under 
 any circumstances. That Act requires facilities to be given 
 according to the powers of railway companies, and as special 
 Eailway Acts make the powers of some companies larger than 
 those of others, so they also extend or limit the facilities they give 
 to the public, and thus the general enactment as to affording 
 facilities has to be read and considered with reference to the 
 language of any special clauses regarding them. In this case the 
 special obligation is the more incumbent to be performed, because 
 it is one of ih.Q terms on which the St. Helens railways were 
 transferred to their present owners, and its being an obligation to
 
 DUE AND REASONABLE FACILITIES. 259 
 
 find waggons makes a company neglecting it answerable under tlie Ch. xiv. 
 
 Traffic Act. This was the principle of our decision in Waf/a'nson -^ - 
 
 and others v. Wrexham Mold and Connah Quay 7?//. Co. (No, 2), 
 (3 Ey. & Ca. Tr. Ca. 164, 446)." 
 
 In this latter case it was held by the Common Pleas Division 
 (affirming the judgment of the Commissioners), that the special 
 Act imposed an obligation on the A. company to provide waggons 
 proper and sufficient for the working and user of the B. railway, 
 and that anyone interested in procuring that accommodation had 
 a ground of complaint under sect. 2 of the Traffic Act, 18-54, 
 against the A. company if they refused to provide it. 
 
 Upon complaint by traders whose collieries and brickworks were 
 connected by sidings with the respondents' railway that the re- 
 spondents did not duly and properly work and manage their 
 railway, and did not provide sufficient locomotive power for that 
 purpose, and that they improperly and unnecessarily detained 
 empty waggons destined for the collieries and works of the appli- 
 cants, and failed to haul away with regularity and despatch from 
 the sidings connecting the said works and collieries with the rail- 
 way loaded waggons placed ready for removal. The Commis- 
 sioners held that the respondents did not, according to their powers, 
 afford all reasonable facilities for the receiving and forwarding and 
 delivering of traffic upon and from their railway, and for the 
 return of carriages and trucks; and the Commissioners ordered 
 the respondents to work and manage theii- railway duly and pro- 
 perly, and to provide sufficient locomotive power and labour for 
 that j)urpose, and to desist from unduly detaining empty or un- 
 loaded waggons destined for the collieries and works of the 
 applicants, and to haul away with regularity and despatch from 
 the sidings communicating with their railway loaded waggons 
 properly placed ready for removal. {JFatkinson and others v. 
 Wrexham, Mold, i^c. Ry. Co. (No. 3), 3 E. & Ca. Tr. Ca. 446.) 
 
 The Commissioners have doubted whether if a railway company 
 is bound by their special Act to weigli coal at the point of discharge, 
 such weighing is a facility for delivery under the Eailway and 
 
 s2
 
 260 THE LAW OF CARRIERS, 
 
 Ch. XIV. Canal Traffic Act, 1854, s. 2. ( Watkinson and others v. Wrexham, 
 
 Art 233 J 7 \ ' 
 
 ^— '- Mold, S^'c. Rail. Co. (Xo. 3), 3 Rj. & Ca. Tr. Ca. 446.) 
 
 As to compelling a company to work signals at a junction, as 
 
 provided by their special Act, see G. W. E>j. Co. Sj' Midland By. 
 
 Co. V. Bristol Port By. 8f Pier Co., post, p. 302. 
 As to the obligation on a railway company to afford facilities, 
 
 having regard to what may be within their powers, and, at the 
 
 same time, reasonable requirements, see Thomas v. N. Staff. By. 
 
 Co., ante, p. 116. 
 As to the provisions in a lease of a railway extending to works 
 
 necessary to afford due facilities for traffic under sect. 2 of the 
 
 Eailway and Canal Traffic Act, 1854, see L. 4' 'S'. W. By. Co. v. 
 
 Staines By. Co., 3 Ey. & Ca. Tr. Ca., p. 48. 
 
 II. — On a Railway Company's own Line. 
 
 234. 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 
 (whicli by interpretation clause includes passengers, 
 with their luggage, goods, and animals) upon and from 
 the several railways (which by interpretation clause 
 includes station and siding) and canals belonging to, 
 and worked by such companies respectively, and for 
 the return of carriages, trucks, boats, and other vehicles, 
 and no such company shall make or give any undue 
 or unreasonable preference or advantage to or in favour 
 of any particular person or company, or any j)articular 
 
 description of traffic, in any respect whatsoever 
 
 (Railway and Canal Traffic Act, 1854, s. 2, 17 & 18 
 Vict. c. 31.) 
 
 In America many cases have arisen involving the rights of express 
 companies to compel railway companies to furnish them facilities
 
 I 
 
 DVE AND BEASONABLE FACILITIES. 261 
 
 for carrying on their business. It has been almost uniformly held : Ch. xiv. 
 
 1, that railway companies are not authorized to carry on an express —^ - 
 
 business ; 2, that they must furnish facilities to persons engaged 
 in carrying on that business ; and, 3, that they must f ui-nish equal 
 facilities to all express companies that apply. The cases are 
 collected in 22 A. & E. Ry. Ca. 275. (See now Inter-State Com- 
 merce Act, 1887, post, p. 339.) 
 
 235. The mere fact that railway companies make 
 charges for the conveyance of passengers or goods in 
 excess of those authorized by their special Acts, but 
 without any undue preference, is not a breach of their 
 obligation under sect. 2 of the Eailway and Canal 
 Traffic Act, 1854, to ''afford according to their 
 respective powers all reasonable facilities for the 
 receiving and forwarding and delivering of traffic." 
 {Broivn v. G. W. %. Co., 3 Ey. & Ca. Tr. Ca. 523 ; 
 7Q. B. D. 182; 50 L. J. Q. B. 483.) 
 
 If the overcharges are of such an amount and of 
 such a nature that they have the effect, or it can be 
 presumed that they are made with the intention, of 
 preventing the use of particular trains and stations, 
 or the traffic to those stations, the Commissioners 
 may have jurisdiction to entertain a complaint in 
 respect of them as being a refusal of ''facilities." 
 {SemUe, inr Brett, L. J., and Cotton, L. J.) 
 
 Charges which a railway company have no statutory 
 power to make, and Avhich are intended or calculated 
 to prevent, and do in fact prevent, the conveyance 
 of traffic on the railway, are a violation of sect. 2 of 
 the Railway and Canal Traffic Act, 1854. (Youncj \. 
 Gwendradh Vallcijs Rjj. Co., 4 Ry. & Ca. Tr. Ca. 247.) 
 
 A refusal to receive and carry traffic, except upon
 
 262 THE LA W OF CARRIEnS. 
 
 ch, XIV. terms wliicli the company are not warranted in exact- 
 
 Art 235. 
 
 ■ '- ing, is a denial of reasonable facilities within the 
 
 meaning of the Act, and is also, when the sender of 
 tlie traffic is thereby injm-ed or inconvenienced in tlie 
 conduct of his business, an undue prejudice and dis- 
 advantage to such sender. [Dlstington Iron Co. v. L. 6f 
 N. W. Rff. Co. and others, 6 %. & Ca. Tr. Ca.) 
 Broicii's case was a complaint that a railway company did not 
 afford " all reasonable facilities " within the meaning of sect. 2 
 of the Eailway and Canal Traffic Act, 185 i, because they charged 
 passenger fares in excess of the sums they were entitled to demand 
 under the maximum clause of their special Act, It was held by 
 the Court of Appeal (affirming the judgment of the Queen's 
 Bench Division) that the Commissioners had no jurisdiction to 
 entertain the complaint, because the mere fact that a railway 
 company charged beyond the maximum sums contained in their 
 special Act did not amount to a refusal to afford ''reasonable 
 facilities." 
 
 Bramwell, L. J., said that the words in sect. 2 of the Eailway 
 and Canal Traffic Act, 1864, " Every railway and canal company 
 shall afford all due and reasonable facilities for the receiving and 
 forwarding of traffic," had no reference to the prices a railway 
 company charge for conveyance. 
 
 In the Dist'tiHjton case Mr. Commissioner Miller said : — 
 " The objection taken was, in effect, that inasmuch as the only 
 grievance complained of consisted in an overcharge alleged to be 
 in excess of the parliamentary maximum, and therefore illegal, 
 and it was not alleged that any other traders or class of traffic 
 were unduly preferred to the appHcants, or that they were sub- 
 jected to any prejudice or disadvantage other than the necessity of 
 paying this overcharge, no violation of the second section of the 
 Act of 1854 or of our Act was disclosed in the application ; and 
 the decision of the Court of Appeal in the case of Brown v. The 
 Great Western liailna// Comj)aiii/ was relied upon as a conclusive 
 authority for this proposition. If we thought that the decision in
 
 D UE A ND REASON A BLE FA CILITIES, 263 
 
 Browii^s case really governed the present one, it would, of course, Ch. xiv. 
 
 , , , Art. i&ov> 
 be our duty simply to follow it without discussion or criticism ; 
 
 but a very slight examination of the facts discloses several and not 
 
 unimportant points of distinction. 
 
 " The application in that case simply set forth the list of charges 
 made or demanded by the respondent company for the carriage of 
 passengers between Paddington Station and various places on their 
 main line, and charged that such charges exceeded the authorized 
 maxima by small amounts varying from 2d. to ^c^., and prayed for 
 an injunction restraining such excessive charges. There was no 
 allegation that anyone had been prevented from travelling by the 
 charge, or that anyone had tendered the legal amount and it had 
 been refused, or that the company had attempted or threatened to 
 prevent any one from travelling except on prepayment of the 
 illegal amounts, and under those circumstances the Court of 
 Appeal considered that the applicant did not allege any denial of 
 reasonable facilities for the receipt, &c. of passenger traffic (which 
 alone was in question) within the meaning of the Act, or any 
 undue prejudice to the applicant, and they therefore decided that 
 no violation of the Traffic Act was alleged, and that we had no 
 jurisdiction to hear the case. The judges, however, not indis- 
 tinctly intimated that their views would have been different if it 
 had appeared that what the company had done had amounted to 
 an obstruction of the traffic, or that any person had been prevented 
 from travelling by reason of the excessive charges. 
 
 " In this case the presence of those elements, upon the absence of 
 which the judges relied in that case, is sufficiently alleged. It 
 appears that the applicants remonstrated against the charges not 
 only as excessive in themselves, but as calculated to injure their 
 business, that they formally announced in writing their intention 
 not to pay more than the legal charges, and that thereupon the 
 companies told them that unless that letter was withdra^^•u they 
 would not receive or carry the traffic. This, in our opinion, 
 amounted to a distinct tender by the applicants and refusal by the 
 company of the sums alleged by the former to be the proper 
 amounts. Of course, in considering the question of jurisdiction,
 
 264 THE LAW OF C AERIE RS. 
 
 Ch. XIV. we must assume the allegations to be true. Now we are clearly of 
 
 Art 235 
 
 '■ 1 opinion, and the observations of the judges in Brouii's case seem 
 
 to point to the same conclusion, that a refusal to receive and carry 
 traffic except upon terms which the company are not warranted 
 in exacting, is a denial of reasonable facilities within the meaning 
 of the Act, and is also, when the sender of the traffic is thereby 
 injui'ed or inconvenienced in the conduct of his business, an undue 
 prejudice and disadvantage to such sender. And from the cha- 
 racter of this prejudice there is an obvious distinction between 
 passenger and goods traffic ; it may very well be that as to the 
 former all that is required in the way of facilities is that proper 
 carriages should be provided, and trains despatched at convenient 
 times, and at reasonable rates of speed, because, as to all other 
 matters, the passenger can help himself ; but in the case of goods 
 all that a sender can do is to deliver or offer the traffic to the 
 company, and if they refuse to receive it, or, recei\'ing, didy to 
 forward it, he is as completely denied reasonable facilities for its 
 transmission as if the company had wilfully neglected to provide 
 the physical appliances necessary for its conveyance. Under these 
 circumstances we came to the conclusion that the decision in 
 B rounds case did not aj)ply to the present case, and that we were 
 competent, and bound, therefore, to hear the present application." 
 
 To justify interference by the Commissioners with rates and 
 fares it is not sufficient merely that a distinction in the fares and 
 rates of different lines, even of the same company, exist, unless it 
 creates an undue preference or prejudice. {Lines v. L. B. 8^ S. C. 
 By. Co. and L. 8^ S. IF. By. Co., 2 Ey. & Ca. Tr. Ca. 155.) 
 
 Lord Blackbm-n, in delivering judgment in Broicn v. M. S. 8f L. 
 By. Co. (8 App. Cas. 712), said : " Now, I am not prepared to say 
 that where there are maximum rates fixed, as no doubt there are 
 on this railway, everything ■within these maximum rates must be 
 a reasonable remuneration. I do not say whether that is so 
 or not." 
 
 236. The Railway Commissioners have, under 
 sect. 2 of the Railway and Canal Traffic Act, 1854,
 
 DUE Al^D REASONABLE FACILITIES. 265 
 
 lurisdiction to hear and determine a complaint ao^ainst ch. xiv. 
 
 •' 1 & _^t_ 236. 
 
 a railway company of not, according to tlieir powers, 
 affording all reasonable facilities for receiving, for- 
 warding, and delivering passengers and other traffic 
 at and from any of their stations -which are used by 
 the company for such passengers or other traffic ; and 
 although the Commissioners have no jurisdiction to 
 order the company to make a new railway station, 
 or to order any particular works, or otherwise to 
 interfere with the discretion of the company in the 
 mode of performing their obligation to afford such 
 facilities, according to their powders, for the receiving, 
 forwarding, and delivering of the traffic, yet they 
 have jurisdiction to order such facilities, even if their 
 doing so would necessitate the making by the company 
 of some structural alterations of such station. 
 
 A railw^ay comj)any do not afford all due and 
 reasonable facilities for receiving, forwarding, and 
 delivering traffic if, having sufficient powers, they 
 keep their platforms, booking offices, and other 
 structures at any station in such a condition as to 
 space and other arrangements as to cause dangerous 
 or obstructive confusion, delay, or other impediment 
 to the proper reception, transmission, or delivery of 
 the ordinary traffic of that station, wdiether consisting 
 of passengers or of goods. [S. E. Bij. Co. v. Railway 
 Commtsswners and Cotyoration of Hastings, 3 Ry. & Ca. 
 Tr. Ca. 464; 6 Q. B. D. 586; 50 L. J. Q. B. 201.) 
 
 In that case a complaint was made to the Railway Commissioners, 
 under sect. 2 of the Railway and Canal Traffic Act, 1854, by the 
 Corporation of H. as to the condition of the stations of the South
 
 266 THE LAW OF CARRIERS. 
 
 Ch. XIV. Eastern Railway Company at H. and L., and an application was 
 
 '■ '- made for an order requiring the railway company to enlarge the 
 
 station at II., to provide a better booliing-ofilce, waiting-room, 
 refreshment-room, and general accommodation therein ; to alter 
 the existing platforms, and to provide new ones ; to improve the 
 warehouse and cattle accommodation ; and at L. to enlarge the 
 platform, and to provide a new road of approach. The Com- 
 missioners delivered a judgment setting out the order which they 
 proposed to make. This order recjuired the railway company to 
 extend the platform accommodation at H. according to a specified 
 plan, to cover over the platforms and part of the carriage yard, to 
 add four waiting-rooms of a specified size, to reserve a portion of the 
 station for refreshments, to increase the accommodation for the 
 delivery of tickets, and to increase and improve the accommodation 
 for cattle. 
 
 With respect to the station at L., the order required the company 
 to increase and improve the platform and waiting-room accommo- 
 dation, to cover over the bridge, to make fresh openings into and 
 to widen the road of approach to that station. 
 
 It was held by the Com-t of Appeal (reversing the judgment of 
 the Queen's Bench Division) that the subject-matter of the com- 
 plaint and application was not beyond the scope of the jurisdiction 
 of the Commissioners, but that the Commissioners had no power 
 peremptorily to order particular works to be executed according to 
 a specified plan. 
 
 By Lord Selborne, L. C, and Lord Coleridge, C. J. : That the 
 orders with respect to the platforms and goods yard at II., and 
 the approach road at L., were in excess of jurisdiction ; that the 
 orders as to refreshment accommodation and the covering over 
 of platforms, carriage yard and bridge, were not " facilities " 
 within the statute ; but that the orders as to booking-office, 
 waiting-room, and cattle accommodation were such facilities. 
 
 By Brett, L. J.: That all the orders except those relating to 
 the cattle accommodation and the delivery of tickets at the booking- 
 office, were in excess of jurisdiction.
 
 D VE AND REASON A BL E FA CILITIES. 267 
 
 The Commissioners made no order as to goods, because what ^^;^|^^- 
 
 Aril dioOt 
 
 was wanted for that traffic was more ground ; and it was a sufficient 
 answer to the alleged contravention of the Act of 1854, with 
 reference to facilities for that traffic, that the company had no 
 power under its existing Acts to acquire more land. 
 
 The Lord Chancellor (Earl Selborne) in delivering judgment, 
 said : — 
 
 " What, then, are the obligations imposed upon railway companies 
 by this statute? They are contained in the second section, and 
 are substantially three in number : First, a positive obligation to 
 ' afford, according to their respective powers, all reasonable facili- 
 ties 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, 
 trucks, boats, and other vehicles.' ' Traffic,' according to the 
 interpretation clause, sect. 1 , includes ' passengers and their lug- 
 gage and goods, animals, and other things conveyed by any railway 
 company.' ' Railway ' includes ' every station of or belonging 
 to such railway company, and used for the purposes of such traffic' 
 The second obligation is to give no undue preferences ; the third, 
 to do whatever may be necessary to enable the company's own 
 line, and any other line connected with or having a terminus 
 near it, to be used by the public as continuous lines of commu- 
 nication. 
 
 " It is unnecessary to state more particularly the terms in which 
 the second and third obligations are created, the first alone being 
 material to the present cj[uestion. I notice, only to set it aside, the 
 argument of the respondents, that this has no reference to any 
 traffic of which a company is itself the original carrier upon its 
 own line. There is nothing either in the words or in the reason 
 of the thing to warrant any such restricted construction. A com- 
 pany may carry, or not, upon its own line as it thinks fit, and, if 
 if it does so, may undertake that business under various conditions 
 and limitations. But, if and so far as it does undertake so to carry 
 either passengers or goods traffic, it comes, in my opinion, under
 
 268 THE LA W OF CAItPilEES. 
 
 Ch. XIV. the oWigation to afford for the purposes of that traffic the facilities 
 
 '- required by the first branch of the second section of the Act. 
 
 " With respect to stations, there is no obligation to establish them 
 at any particular places or place unless the company thinks fit to 
 do so. The ' railway,' as interpreted by the Act, only includes 
 existing stations 'used for the purposes of public traffic* But 
 when the company has, in fact, opened a station at a particular 
 place, and actually uses it for the purposes of public traffic, and 
 invites the public to resort to it for the purpose of being received 
 or delivered as passengers to or from trains announced as starting 
 from or stopping at that station, or of having theii' goods received 
 there for carriage or delivered there after carriage, it is, in my 
 opinion, bound by the Act to afford at that station (to the extent 
 of its powers) all reasonable facilities for ' receiving, forwarding, 
 and delivering ' such passengers and goods. It may not in all 
 cases be a very easy thing to determine whether that obligation has 
 been fulfilled or not. Nothing less than reasonable proof that it 
 has not been fulfilled can authorise the Commissioners to interfere 
 with the discretion of the company as to the arrangements or 
 management of any of its stations ; and, even then, the Act does 
 not appear to contemplate an order for the execution of any j)ar- 
 ticular works, if it can be obeyed without them. But I cannot 
 assent to the argument that, according to the true construction of 
 this second section, the obligation to ' afford all reasonable facili- 
 ties,' &c., is circumscribed by the precise extent, capacity, and 
 structural arrangements of the buildings, booking offices, and plat- 
 forms, &c., de facfo, provided at the time of complaint by the 
 company, if these are insufficient for the ordinary traffic of the 
 station, and if, by alterations or other improvements which the 
 company has adequate power to make, all necessary facilities 
 might be afforded. The words * according to their respective 
 powers,' as well as the general scope of the enactment, seem to me 
 to be very much opposed to so limited a construction. I am, there- 
 fore, of opinion that a company does violate and contravene the 
 Act if, having sufficient powers, it keeps its platforms, booking
 
 DUE AND UEAtiONABLE FACILITIES. 269 
 
 ofl&Ces, and other structures at any station, in such a condition as Ch. xiv. 
 
 Art. 236. 
 to space and other arrangements as to cause dangerous or obstruc- '■ '- 
 
 tive confusion, delay, or other impediment, to the proper recep- 
 tion, transmission, or delivery of the ordinary traffic of that station, 
 whether consisting of passengers or of goods. 
 
 " Being of that opinion, I am unable to hold, upon the terms 
 of the complaint itself, that the matter of it (which I regard as 
 summed up in the 7th and 14th paragraphs) was beyond the scope 
 of the Commissioners' jurisdiction. . . . 
 
 " The reservation of part of the station buildings at Hastings for 
 refreshment purposes, and the covering over of certain parts of the 
 platform, &c., at both stations, on account of the exposure of the 
 site, and the resort of invalids to St. Leonards and Hastings, seem 
 to me to be clearly not necessary as ' facilities for the receiving, 
 forwarding, or delivering traffic upon the railway,' however de- 
 sirable they may be for the comfort or convenience of passengers. 
 
 " The enlargement in some reasonable way (whether by platform 
 or by waiting room accommodation) of a space insufficient for the 
 proper reception of ordinary passenger traffic, and some proper 
 provision for the delivery of cattle from the company's waggons, 
 without those risks which seem now to attend their passage through 
 the station yard, are things which approach more nearly to my 
 conception of facilities which the Commissioners, in the due exer- 
 cise of their jurisdiction, might hold to be necessary and required 
 by the Act. I am by no means prepared to say that there is no 
 form of mandatory injunction which they can properly issue for 
 these pui'poses. It does not, however, follow that they can order a 
 certain number of waiting rooms to be provided, or dictate their 
 classification, position, or dimensions, or enjoin the company to 
 make cattle pens upon a particular piece of ground now used for 
 other purposes. It may well be, that by the execution of such 
 works as these, or some of them, the obligation imposed upon the 
 company by the statute might be fulfilled, nor should I be disposed 
 to impute any excess of then- jurisdiction to the Commissioners if 
 they were merely to indicate, for the consideration of the company,
 
 270 THE LA W OF CARRIERB, 
 
 Ch. XIV. these or any other convenient means by which, in their opinion, 
 
 that obligation may be fulfilled. But between any such reasonable 
 
 suggestions, and a peremptory order for the execution of these 
 particular works, there is a wide difference. I can find no warrant 
 in the statute for the assumption by the Commissioners of a general 
 control in matters of this kind over the discretion of the company 
 as to the best means (when there is a choice of means) of fulfilling 
 their statutory obligations. 
 
 " There remains the point as to booking office accommodation at 
 both stations. The Commissioners proposed to order that this 
 should be increased in a manner as to which I consider them to 
 have had jurisdiction to make such an order as I conceive them to 
 have intended. 
 
 " The result is that the Commissioners had, in my opinion, juris- 
 diction over the general matter of the complaint as summed up in 
 paragraphs 7 and 14, and had also jurisdiction to order some, at 
 least, of the things contemplated by their judgment, provided they 
 did so in a proper manner and form, but that as to other things 
 which they apparently intended to order they had no jurisdiction ; 
 partly because those things were beyond the company's powers, 
 partly because they were not facilities reasonably necessary for the 
 particular purposes mentioned in the Act, and partly because they 
 would have required particular structural works to be executed 
 which are not prescribed by the Act, and which cannot be supposed 
 to be the only possible means of affording the facilities which the 
 Act does require. ****** 
 
 The Lord Chief Justice agrees in this view, and the judgment of 
 the Court will therefore be to reverse the order of the Queen's 
 Bench Division, and allow the demurrer of the Railway Commis- 
 sioners." 
 
 Lord Justice Brett said : " The only question which the Com- 
 missioners have jurisdiction to entertain on any complaint is, 
 whether what is complained of is something done or omitted to 
 be done in violation or contravention of the Act ; that any order 
 which they may make can only properly be an order restraining
 
 DUE AND REASONABLE FACILITIES, 271 
 
 the Company from furtlier contimiing to do certain tliinf^s wliicli Cli. XIV. 
 
 Art 236 
 
 are in violation or contravention of the Act, or directing the Com- ' '- 
 
 pany to obey the Act as to certain matters omitted to be done by 
 the Company in violation or contravention of the Act. 
 
 " Applying these propositions to the present dispute, it follows 
 that the defendants had jurisdiction only to hear and determine 
 and order in respect of facilities to be afforded upon or from the 
 railway or the stations used by the Company for the purposes of 
 public traffic. This description of the railway and stations, namely, 
 that they are used by the Company, confines their jurisdiction to 
 a dealing with the existing railway and the existing stations, and 
 prevents them from ordering the making of any new railway or any 
 new stations. Their jurisdiction was further confined to tliis, that 
 they could only properly deal with matters which might facilitate or 
 impede the receiving, forwarding, or delivering of passengers or 
 goods upon or from the existing railways or stations ; they had no 
 jm-isdiction to entertain or deal with matters otherwise affecting 
 passengers or goods. The power to make an order being instituted 
 by a statute which describes the kind of order it enables the 
 tribunal to issue, the jurisdiction of the Commissioners is also con- 
 fined to making such an order as is described in the statute and 
 formulated in the rules. (See 15 C. B. p. 473.) The order, 
 therefore, can only legally be made with regard to matters which 
 the Commissioners may properly entertain, that is to say, with 
 regard to matters which by their omission or commission may 
 affect facility in receiving, forwarding, or delivering traffic. The 
 order may direct the discontinuance of acts complained of, if they 
 are done in violation or contravention of such facility, or may 
 order that certain omissious complained of shall be supplied, if 
 they are in violation or contravention of the same facility. To 
 £orm an opinion whether omissions complained of are an omission 
 of reasonable facilities, it may be right and even necessary that the 
 Commissioners should receive and consider evidence of specified 
 schemes or methods for supplying the alleged omission ; but the 
 order can only direct that the omission must be supplied either
 
 272 THE LA W OF CARRIERS. 
 
 Ch. XIV. wholly or to a declared reasonable extent. If tlie omission can be 
 - — ^ '- supplied in more than one way, the Commissioners have no juris- 
 diction to declare which way is to be preferred. The discretion as 
 to such a matter rests with the company. The Commissioners, 
 therefore, in this case might properly receive evidence of specific 
 methods of supplying the alleged omissions of reasonable facilities 
 for the receiving, forwarding, and delivering of passengers or 
 goods, and might properly consider whether the nature and 
 expense of such specific methods of supplying facilities made the 
 omission of such facilities reasonable or unreasonable ; but the 
 Commisssioners had no jurisdiction to order that the omissions, 
 which they determined ought to be supplied, should be supplied by 
 any specified works to be constructed in any specified form or any 
 specified locality. 
 
 " The obligations dealt with by the statute w^hich are material 
 to be considered in the present judgment, are confined to facilities 
 for the receiving, forwarding, and delivering of traffic upon and 
 from the railway belonging to or worked by the company, or upon 
 and from stations used by the company. This confines the juris- 
 diction to make any order to a power to make it with regard to the 
 existing railway or the existing stations. It is necessary, however, 
 to determine what is the legal limitation of the terms so used. It 
 was urged that such terms prevented the Commissioners from 
 making any oi-der in any form which would necessitate the making 
 by the company of any structural alteration or addition what- 
 ever. But the terms ' railway ' and ' railway station ' are not mere 
 legal terms; they are the descriptions in ordinary phraseology 
 of well-understood things of an ordinary kind. The terms as 
 used in the statute are, therefore, to be construed as such descrip- 
 tions. If there is an omission of some reasonable facility within 
 the Act in the working of the railway, which omission can be rea- 
 sonably supplied without altering the railway, using the term 
 ' railway ' as a description of that which is ordinarily understood 
 by people of ordinary sense to be a * railway,' there is nothing in 
 the Act which says that it would be an answer on the part of the
 
 BUE AND REASONABLE FACILITIES. 273 
 
 company to an order to supply the omission that it could not be Ch. xiv. 
 
 supplied without some structural alteration or addition. For '■ '- 
 
 instance, if additional points or sidings were required for safety at 
 an existing junction, no ordinary person would say that the 
 addition of a set of points or the laying of a siding rail would 
 make a new railway ; they would term it an adaptation or im- 
 provement of the existing railway, though an order to make a 
 single-line railway from A. to B. into a douhle-line railway would 
 be considered by all ordinaiy persons of intelligence to be an order 
 to construct a substantially new line of railway or new railway. 
 So as to a ' station ; ' the term is not in ordinary sense used as a 
 description merely of the actual existing structures at a station, 
 but as the description of a space actually set apart for and generally 
 used as a resting-place for traffic, or a place for dealing with it in 
 a particular way, although every part of the space is not covered 
 with structures, or used for passing along, or for deposit. An 
 order, therefore, to supply the omission of reasonable facilities at a 
 given station would not be beyond jurisdiction because such omis- 
 sion could not be supplied without some structural alteration or 
 addition made at such station, used as describing such spaces ; but 
 it would be beyond jurisdiction if it required and insisted upon the 
 supplying of an alleged omission which could not be obeyed, and 
 which it might be admitted could not be obeyed, without what 
 every ordinary person would reasonably say was the making a new 
 station or adding to the existing station so as to make it a different 
 station, the distinction, as before, being between adaptations or 
 improvements of existing works or an existing station, and the 
 execution of substantially new works or the making of a substan- 
 tially different station. 
 
 " Applying the above rules to the different matters included in 
 the proposed order, the direction to extend the limits of the existing 
 station is not an order which can be obeyed by improving or 
 adapting the existing station, but only by substantially making a 
 station different from the existing station, and is, therefore, beyond 
 jurisdiction. An order in any form to do this would be bej^ond 
 
 M. T
 
 274 THE LAW OF CARRIERS. 
 
 Ch. XIV. lurisdiction. So as to enlarging the bridge. The order to extend 
 
 : 1 the platform accommodation is an order dealing with a matter 
 
 within the jimsdiction of the Commissioners, if there was some 
 legal evidence of a want of reasonable accommodation in that 
 respect for receiving or forwarding the average number of pas- 
 sengers. If there was evidence before the Commissioners that the 
 platform accommodation for getting into or out of or waiting for 
 trains was not reasonably sufficient for the passenger traffic, and that 
 further accommodation in that respect could be reasonably given 
 within the limits of what might reasonably be treated, as above 
 defined, as the existing station, the Commissioners might legally 
 have declared that there was an omission of reasonable facilities in 
 respect of platform accommodation, and might have enjoined the 
 company to supply further platform accommodation to a specified 
 extent, as to twice the existing extent, or so as to accommodate so 
 many more passengers, and the Commissioners might properly 
 have received evidence of specific schemes of improvement so as to 
 determine what amount of further accommodation it would be 
 reasonable to require ; but the Commissioners exceeded their juris- 
 diction by ordering the platform to be extended according to the 
 X^lan of the engineer, that is to say, in one way only. If they 
 could make an order in such a form, their order would be disobeyed 
 though an equal accommodation could be given in some other way. 
 They have no power, under any circumstances, to make an order 
 in any form to such effect. Therefore, the order so framed is an 
 excess of jurisdiction. 
 
 " The order as to further protection from weather would have been 
 within jurisdiction if it had been made with regard to passengers 
 as such; but it exceeds because it is made in order to protect 
 persons visiting Hastings as invalids, although it may protect with 
 quite reasonably sufficient effect passengers as such. 
 
 " The order as to additional waiting-rooms would have been 
 correct if, upon some legal evidence, the Commissioners had deter- 
 mined that there was a want of reasonable accommodation in that 
 respect, which want could be supplied by reasonable alterations of 
 or additions within the existing station, although such alterations
 
 DUE AND REASONABLE FACILITIES. 275 
 
 or additions involved structural alterations or additions, and had ch. xiv. 
 
 Art 236 
 ordered further waiting-room accommodation to a specified extent : L 
 
 to be given ; but the order is in excess of jurisdiction because it 
 
 directs absolutely certain specified works to be done. 
 
 " The order as to refreshment accommodation is further beyond 
 jurisdiction because it does not come within the terms of facilities 
 for receiving or forwarding passengers. 
 
 " The order as to the delivering of tickets is right in ev^ry 
 respect. 
 
 " The order as to the goods shed and sidings would have been 
 right if it had been confined to ordering an extension within the 
 existing station ; but the order to seek for powers to enlarge the 
 goods station is in excess. 
 
 " The order as to cattle pens seems to be right, though the order 
 to restore the raised platform to its original use is in excess. 
 
 " The order as to the approach to the station is in excess in every 
 respect." 
 
 See further, as to providing station accommodation, antey Arts. 
 193, 233. 
 
 The case of Caterham Rij. Co. v. L. B. ^^ S. C. Ry. Co. and S. E. 
 Rij. Co. (1 Ry. & Ca. Tr. Ca. 32 ; 26 L. J. C. P. 16; 1 C. B. (N. S.) 
 410), was the only one in which defective station arrangements 
 were brought before the Court of Common Pleas under the Railway 
 and Canal Traffic Act, 1854. It is important as showing that the 
 Court were of opinion that interference with station arrangements 
 was within their power. The Caterham Ry. Co., owning a branch 
 line, complained that there was no convenient covered station at 
 Caterham Junction. A rule nisi was granted, but the rule was not 
 drawn up, the Brighton and the South Eastern Companies being 
 willing to provide a covered station at the Caterham Junction, 
 according to the intimation given by the Court that it was a 
 reasonable accommodation. Cresswell, J., said : " I think the 
 absence of such accommodation subjects passengers on the Cater- 
 ham line to undue prejudice and inconvenience, and it appears that 
 there are covered stations at all the other places on the line ; as to 
 
 t2
 
 276 THE LAW OF CARRIERS. 
 
 Ch. XIV. that, therefore, the rule may go." And Crowder, J., said : "With 
 ^^^" ^^^' respect to the want of a covered station at the Caterham Junction, 
 I think that is a reasonable accommodation to which the public are 
 entitled, and that there ought to be a rule as to that." As to how 
 far this case is an authority for the proposition that a covered 
 station is a reasonable accommodation which a railway company 
 are bound to provide for the public, see the conflicting judgments of 
 the judges of the Queen's Bench Division m S. E. Ry. Co. v. By. 
 Commissioners and Corporation of Hastings {ante, p. 265). 
 
 The case of Dundee and others v. Belfast and NortJiern Counties By. 
 Co., in the Commissioners' Coui't, raised the question of the power 
 of a railway company to close a passenger station. Ballynure Eoad 
 had been for many years a station on the Belfast and Ballymena 
 Line, but in August, 1875, it was discontinued as a station for 
 passengers. It was still kept open for goods, but for passenger 
 traffic the company considered it sufficient that there was a station 
 21 miles distant — the Ballyclare and Doagh Station. The appli- 
 cants were sufferers by the change, and they had represented to 
 the company, though without effect, the public inconvenience of 
 trains being no longer stopped at Ballynm-e Eoad, and their 
 intention, if necessary, to have it determined whether they were 
 not entitled to relief under the Traffic Act. The matter on either 
 side was fully set out in the application and answer of the parties, 
 but it underwent no discussion at the hearing, and the Commis- 
 sioners made an order by consent " that the application should be 
 dismissed, the defendants undertaking to re-open within one month 
 for further trial Ballynure Eoad Station as a passenger station for 
 two years, with two trains each way per day ; at the end of that 
 time both the parties to be in the same position they are in 
 
 now." 
 
 In the S. W. By. Co. v. Staines, S^e. By. Co. (3 Ey. & Ca. Tr. 
 Ca. p. 48) the Commissioners thought that sect. 2 of the Eailway 
 and Canal Traffic Act, 1854, entitles the public, at stations where 
 there are many passengers, to have the convenience of a sufficient 
 waiting-room, and to have platforms which are not long enough
 
 DUE AND REASONABLE FACILITIES. 277 
 
 for the traffic extended, and to have also such sidinff accommodation Ch. xiv. 
 
 Art. 236 
 as that goods can he received and delivered without delay. '- 
 
 A complaint that the platform accommodation of an existing 
 station is not reasonahly sufficient for the passenger traffic is a 
 matter within the Railway Commissioners' jurisdiction, subject to 
 the conditions laid down by the Court of Appeal in the Hmtinfjs 
 case, ante, p. 262. (See Tunhridgc Wells Local Board v. S. E. Rij. 
 Co., 5th Annual Report of Railway Commissioners, p. 4.) 
 
 In America the question whether a railway company can be 
 compelled to put up a station has several times lately been before 
 the Courts, and has been in each case affirmatively answered ; it 
 being held that the duty to establish stations upon a public railway 
 was a public duty. [Feople v. New York, 8fc. By. Co., 29 A. & E. 
 Ry. Ca. 480 ; also Vols. 22 and 30.) 
 
 In Northern Pacific Ry. Co. v. Territory (29 A. & E. Ry. Ca. 
 82), it was held that a Court of equity will compel a railway com- 
 pany to construct a station and give other railway facilities at a 
 proper and necessary place. 
 
 237. The Railway Commissioners will order addi- 
 tional trains to be rmi if a strong or clear case of its 
 being reasonable to do so is made out. [Lines v. L. B. 
 6f S. a Rjj. Co., and L. ^ S. W. R?j. Co., 2 Ry. & Ca. 
 Tr. Ca. 155.) 
 
 It is submitted that it would not be reasonable if such trains 
 could only be run at a loss, or if they would interfere materially 
 with superior traffic. 
 
 In giving judgment in the above case, the Commissioners said : 
 " As to the trains to Ludgate Hill and London Bridge, ten 
 daily each way in the first case, and nine in the other, we are not 
 of opinion that their number is insufficient, and as regards the 
 times of arrival and departure in London, we feel the force of what 
 was said on behalf of the companies as to the necessity of giving 
 the trains by their principal lines their first consideration ; but 
 subject to this we trust they will endeavour so to fix the Tooting 
 trains as to make their times to and from Loudon harmonise as
 
 278 THE LAW OF CARRIERS. 
 
 Ch. XIV. closely as possible with tlie hours most convenient for the generality 
 ^^^' ^^^' of the passengers by them. We must go further with regard to 
 the discontinuance of the trains between the joint line and Victoria. 
 Looking, indeed, to the Brighton Company having carried on this 
 service, which consisted of seven trains each way daily from 1869 
 to 1874, and to their having taken it ofi from the traffic not paying 
 the expenses, we should be reluctant to order its re-establishment 
 if the traffic could only be conveyed by running trains expressly to 
 accommodate it. But the joint line or its prolongation, and the 
 line from Sutton to Victoria, intersect on the same level, and to 
 establish the communication with Victoria, nothing more, as it 
 seems to us, is required than to allow an interchange of traffic at 
 the point of intersection. This would not involve the rimning of 
 any additional trains, but merely the providing of a transfer 
 station at which the direct Victoria and Mitcham trains would stop 
 to take up and set down the passengers by the joint line. We see 
 no practical difficulty in this, nor do we understand Mr. Knight, the 
 G-eneral Manager of the Brighton Company, to have suggested any, 
 except the expense. A very small expense would be sufficient 
 according to our view, but we have no preference for any particular 
 mode of attaining the object aimed at, and any method that can be 
 devised which, in the judgment of the companies concerned, would 
 be the best to adopt, would meet with our approval." 
 
 In the Duhlin ^ Meath E>j. Co. v. 31idland of Ireland Ry. Co. 
 (3 Ey. & Ca. Tr. Ca. 379) the Meath line was worked by the Mid- 
 land Company under an agreement for a lease which provided that 
 the Midland should work it in connexion with and in continuation 
 of their own lines of railway, and should work it efficiently, and so 
 as faii4y to develop, protect, and maintain the traffic fairly belong- 
 ing thereto. The Commissioners decided that it was the duty of 
 the Midland Company to put on, in addition to the trains then 
 running, a new down train and a new up train. They also ordered 
 the branch train service, which was much complained of, particularly 
 with regard to delays to which persons were subjected at the junc- 
 tion, to be increased and improved in various respects.
 
 BUE AND REASONABLE FACILITIES. 279 
 
 As to the correspondence of trains, see post, Art. 250. Ch. xiv. 
 
 In the Caterham Junction case {ante, p. 275) the Court of Common 
 
 Pleas refused a rule on a complaint that a sufficient number of 
 trains did not stop at the junction on the ground that as many- 
 trains stopped at the junction as at other stations of a similar 
 character, and that there were no materials before the Court upon 
 which to decide whether or not more trains were necessary for the 
 convenience of the public. 
 
 In a case in the Court of Session in 1885 [Great North of Scot- 
 land H//. Co. V. Ilighland Rij. Co.), Lord Trayner, in giving judg- 
 ment, said : " It is the duty and privilege of a railway company to 
 fix the times at which its trains shall run. They take into account 
 the duty imposed upon them to give proper facilities and con- 
 veniences to the public. It is for the public advantage that they 
 are incorporated. They must also take into account their own 
 advantage in running such trains, in such directions, at such times, 
 and under such conditions as shall, while being convenient to the 
 public, afford a proper and reasonable return to the persons whose 
 money is invested in the concern, and unless some limitation is put 
 by statute upon the company's right to run trains at certain hours 
 and under certain conditions, the common law certainly puts none." 
 
 By Arts. 2226 and 2227 of the Eevised Statutes (U. S.), a 
 duty is imposed on railway companies to furnish sufficient trans- 
 portation to carry all property offered, though, when the carrier, 
 from an unexpected and unprecedented press of business, is unable to 
 do so, this, in general, will furnish a legal excuse for refusing to 
 accept freight. {RoHston, ^c. Rij. Co. v. Smith, 22 A. & E. Ey. Ca. 
 p. 421.) 
 
 Watts, C. J., in delivering judgment, said : "A general duty is 
 here imposed upon the railroad company to furnish sufficient 
 accommodation for the transportation of all property that may be 
 offered. This is, however, but declaratory of the common law 
 liability of carriers. Aside from these statutory provision^ it 
 would be the duty of the carrier to provide all necessary facilities 
 and means for transporting such property as might be offered, at 
 least to the extent that would ordinarily be expected to seek
 
 280 THE LA W OF CARRIERS. 
 
 Ch. XIV. transportation by the particular line. When an unexpected and 
 '■ '- unprecedented press of business occurs, the carrier is generally 
 
 excusable for refusing to accept the property for transportation. 
 
 Hutchinson on Carriers, sect. 292, and authorities cited." 
 
 A railway company having the control of two competing routes 
 
 ought to afPord equal facilities to the public by both routes. 
 
 {Lo)uIondernj Port, S^'c. Commissiono's v. Great Northern of Ireland 
 
 Ry. Co. and others, 5 Ey. & Ca. Tr. Ca. 282.) 
 
 238. The making of a siding connexion or branch 
 railway for the use of a particular individual or set of 
 individuals, and not for the purpose of facilitating the 
 ordinary receipt or delivery of traffic at a station, is 
 not a facility within the meaning of s. 2 of the Rail- 
 way and Canal Traffic Act, 1854. (So held by Mr. 
 Commissioner Price and Mr. Commissioner Miller; 
 contra^ by Sir Frederick Peel.) 
 
 If the siding connexion is legally in existence, the 
 continuance of the connexion may be a reasonable 
 facility within the meaning of the first clause of sect. 2 
 of the Railway and Canal Traffic Act, 1854, and the 
 question whether the railway company ought reason- 
 ably to be required to render any and what facilities 
 for the receipt and delivery of traffic at such a siding 
 is a matter the Commissioners can determine under 
 that section of the Act of 1854. (So held by Sir 
 Frederick Peel and Mr. Commissioner Miller, Girardot, 
 Flinn ^ Co. v. Midland Ry. Co. ; Beeston Brewery Co. 
 \. Midland Ry. Co., 5 Ry. & Ca. Tr. Ca. 53, 60.) 
 
 Where any Act contains provisions relating to pri- 
 vate branch railways or private sidings, the Commis- 
 sioners have the like jm-isdiction to hear and determine 
 a complaint of a contravention of the enactment as
 
 DUE AND REASONABLE FACILITIES. 281 
 
 tlie Commissioners have to hear and determine a com- ^^: ^^J- 
 
 Artt Zoo, 
 
 plaint of a contravention of sect. 2 of the Railway and 
 Canal Traffic Act, 1854. (51 & 52 Vict. c. 25, s. 9, 
 2>ost, Appendix.) 
 
 The question of granting- facilities by means of siding accommo- 
 dation is so important a one that the views of the Railway 
 Commissioners are quoted somewhat at length. 
 
 The Beeston Brewery Company complained that the Midland 
 Railway Company had recently, by taking up rails, severed the 
 connexion between the applicants' private siding and tlie company's 
 railway, and thereby prevented the traffic of the applicants from 
 being received from or delivered to the railway company by means 
 of the siding, whereby the railway company did not, according to 
 their powers, give the applicants all reasonable facilities for the 
 receiving, forwarding, and delivering of their traffic, and subjected 
 them to undue and unreasonable prejudice and disadvantage. 
 
 On the preliminary question of law, the Commissioners' judg- 
 ments were as follows : — 
 
 " Sir Frederick Peel : In this case the applicants complain that 
 the railway company do not afford them reasonable facilities for 
 their traffic, and that they subject their traffic to an undue preju- 
 dice, in respect that they do not allow them a siding at the Beeston 
 station. It appears that when they came into possession of their 
 premises near that station in 1882, there was a siding, and that 
 that siding has only recently been taken up by the railway com- 
 pany in consequence of some difference about the charge for the 
 conveyance of traffic. The applicants state in this application that 
 the railway company wrongfully took up the siding ; and that as 
 regards an agreement to which they refer as their authority for 
 taking up that siding, it is no justification for what they have done. 
 
 " The answer of the railway company is that we have no juris- 
 diction to hear this application. They say that the siding which 
 they are said to have wrongfully taken up was laid down by them 
 under an agreement with the predecessors to the brewery company 
 in occupation of those premises, and that that agreement reserved
 
 282 THE LA ]]' OF CARRIERS. 
 
 Art ?!' ^^ ^^^^^^ expressly a power to take up the siding wlienever tliey 
 
 might think proper ; and that any question as regards whether 
 
 what they did was done rightly or wrongly, as far as that agree- 
 ment is concerned, is a question which we have no authority to 
 decide. In that view I concur, and so far as this apphcation is in 
 effect a reference to us of any difference or dispute with regard to 
 things done under that agreement it is an application which, I 
 think, we could not hear, seeing that the reference, if it be one, 
 has been made to us by only one of the parties to the agreement. 
 
 " The company also say that what the Beeston Brewery Com- 
 pany want is a communication between the railway company's line 
 and a branch railway on their own property, and that the subject 
 of branch railways and their connexions is regulated by the 8th 
 Yictoria and another Act referred to in the section of that Act 
 which regulates these matters, and that with neither of those Acts 
 have we any jurisdiction to deal. 
 
 " It appears to me that that view also is a correct one, and so 
 far as this application relies for making out its case upon any obli- 
 gations imposed upon the railway company by the 8th Yictoria, I 
 think it is an application which we should have to decline to hear. 
 
 " At the same time, this is only part of the application, and the 
 rest of the application seems to me to be free from objection. It 
 appears to me that the applicants are not precluded from alleging 
 that, quite independently of the 8th Yictoria, they are entitled to 
 have this connexion as a reasonable facility, within the meaning 
 of the Traffic Act of 1854. It is a kind of facility, I think, 
 which we have power to grant, and there are circumstances, I can 
 easily imagine, where it would be reasonable that such a facility 
 should be granted. But I think the applicants would have con- 
 siderable difficulty in making out the reasonableness of such a 
 thing in this particular case, because the connexion which . they 
 want is at a place which the company have appropriated to a 
 station, and considering that a station — every part of it — may, for 
 aught we know, be required for the accommodation of the traffic 
 of the public at large, it is not clear by any means to me that it
 
 DUE AND REASONABLE FACILITIES. 283 
 
 could be reasonable that any part of that station should be set Ch. xiv. 
 
 . ... Art. 238. 
 
 aside for a facility from which only one individual under any 
 
 circumstances could derive any benefit. 
 
 " Then, again, I think that the applicants are not precluded from 
 alleging, as they do allege, that the facility which they ask is one 
 which has been granted by the company to other persons in other 
 places, and that the circimistances under which such facility has 
 been granted to others, notwithstanding that the place is not the 
 same, are similar to the circumstances which constitute their own 
 case. Of course it would be for them to get over the difficulty of 
 the places not being the same. That would be a question of fact 
 which would be for them to deal with. 
 
 " I think, therefore, the application, as regards the last two 
 heads that I have mentioned, is one that we may allow as far as 
 regards the question of jurisdiction." 
 
 " Mr. Commissioner Miller : In this case the applicants state that 
 they have been for some time in possession of a branch railway 
 which connects with the Midland Eailway at a station ; and that in 
 consequence of disputes which are not stated here, and which I do 
 not suppose would be material for this purpose, the railway com- 
 pany have taken up or threatened to take up the rails, so as to 
 break the communication. They allege also that there are other 
 persons, competitors in business, not at the same station, but at 
 other stations, who have got the accommodation of branch railways 
 in connection Avith the Midland Eailway ; and they assert that 
 the breaking of their connexion with the railway will, amongst other 
 things, subject them to an undue and unreasonable prejudice and 
 disadvantage as between themselves and these other persons, their 
 competitors in business. The defence of the railway company on 
 the merits, is that the communication in question was made under 
 an agreement, a clause in which agreement gave them an express 
 right to terminate it at three months' notice, and that they have 
 given the requisite notice, and that as a matter of law, whether 
 they are right or not in that, we have no jurisdiction to determine 
 the question, it not being within the powers given to us either by 
 our Act or by reference in the Act of 1854.
 
 284 THE LAW OF CARRIERS. 
 
 cii- XIV. " Now, assuming, as for the purpose of testing this case we 
 
 Art. 238. 
 
 must assume, though of course I only assume it for that purpose, 
 
 that the applicants are absolutely right, in other words, that we are 
 trying this simply on demurrer to the application, it would appear 
 to me that the applicants would have any one of thi-ee remedies, 
 and that those remedies are not alternative, but cumulative. First 
 of all they might apply for an injunction to restrain the company 
 from taking up the rails in question, on the ground that they 
 were wrongfully making a use of the agreement which was not 
 contemplated by the parties at the time and was not warranted by 
 its real meaning. That would be an application to the Chancery 
 Division, with which of com-se we should have nothing to do. Or 
 they might abandon the agreement altogether and apply to the 
 Queen's Bench Division for a mandamus, relying simply on their 
 right as adjoining owners to make a connexion between their 
 branch railway and the railway of the Midland Company. That, 
 again, is a matter over which we have no jurisdiction, and as to 
 which no doubt they would have some difficulty in establishing their 
 case, from the very fact that the connexion is made at a station. 
 But beyond that they might, I think, come here, and, if their own 
 view of the case were thoroughly well founded, come on either of 
 two grounds : one, that the continuance of this connexion was a 
 reasonable facility within the meaning of the first clause of the 
 second section of the Traffic Act of 1854. I say ' the continuance ' 
 deliberately, because, notwithstanding the fact that the judgment 
 of the Court of Appeal in the Hastings case does show that 
 certain slight structural alterations at a station, which do not 
 amount to a re-modelling of the station, are within the meaning 
 of the word ' facilities,' I am unable, myself, to see that the 
 making of a branch railway, not for the purpose of facilitating the 
 ordinary receipt or delivery of traffic at the station, but for the 
 use of a particular individual, or set of individuals, is a facility 
 within the meaning of that Act. But although the making of it 
 in the first instance might not be so, still, where it existed, the 
 permitting the parties to whom it belonged to use it clearly would
 
 DUE AND BEASONABLE FACILITIES, 285 
 
 be a facility within the meaning of the Act ; and the question Ch. xiv. 
 
 whether it was a reasonable facility or not, would, of course, depend '■ '- 
 
 upon two things ; first, on the general merits ; and secondly, on 
 whether the existence of the agreement under which it was put 
 down constituted a sufficient defence to the company for disre- 
 garding those general merits. 
 
 " But without determining that point, it appears to me that the 
 applicants might further say this, and they do say it most dis- 
 tinctly in the ninth paragraph of their application. They say : — 
 ' Whether this branch railway was a facility to which we were 
 originally entitled or not, whether we could have forced it under 
 the Act of 1845 or not, we have got it, and certain competitors in 
 trade of ours have got precisely similar facilities under precisely 
 similar circumstances. The company now propose without 
 reasonable cause to deprive us of the facility which they are con- 
 tinuing to our competitors ' ; and if the applicants are right on the 
 merits, that clearly would be an undue prejudice within the second 
 clause of the second section of the Act of 1854, leaving the question 
 of facility under the first clause entirely on one side. That is a 
 question which we have jurisdiction to hear and determine. I 
 cannot help pointing out to the applicants, as the Chief Commis- 
 sioner has already done, that the fact that the facilities given are 
 at different stations, and therefore certainly more or less under 
 different circumstances — and the onus of proving that the circum- 
 stances are for this purpose similar will fall entirely upon them — 
 may be a very material difficulty in their way when we come to 
 the merits of the case ; but it does not, in my opinion, interfere 
 with our jurisdiction to hear and determine the case, and to give 
 them a remedy supposing the merits to turn out in their favour. 
 
 "It was suggested at the argument that under any circum- 
 stances the only thing we could do on this branch of the case 
 would be to make a general order directing the company to desist 
 from inflicting an undue prejudice on the applicants, and that 
 such a general order, as it could not extend to making this par- 
 ticular structural alteration in the station, would practically be
 
 286 THE LAW OF CARRIERS. 
 
 Ch. XIV. useless to the applicants. But althougli it is perfectly accurate to 
 
 Art 238 T • . "^ 
 
 ' say that m the result of the Hastings judgment it would not be 
 
 right for us specifically to dictate in our order in what way the 
 
 prejudice was to be abated, if in our order we point out a way 
 
 which certainly would abate it, and the company do not choose to 
 
 accept that way, but try to abate it in some other way, they would 
 
 do so at their own peril ; and if, on an application to us alleging 
 
 that the order had not been complied with, we thought that the 
 
 course the company had taken did not amount to a compliance 
 
 with the order, we should not hesitate to put in force the powers of 
 
 the third section of the Act of 1854. If, on the other hand, the 
 
 company, not accepting the course we suggested, did somethiEg 
 
 else which we did think was a sufiicient compliance with the order, 
 
 of course there the matter would end. They are not in any way 
 
 bound to accept our suggestion, but if they adopt any other course, 
 
 they must take the risk of its being held eventually not to be a 
 
 sufficient compliance with the order." 
 
 '' Mr. Commissioner Price : My view of the case is simply this, 
 that we really have no jurisdiction at all to inquire into it. The 
 siding as to which the question arises was not constructed as a 
 branch railway under the general Act, nor under any order of ours, 
 as a reasonable facility. It is simply constructed under an agree- 
 ment. It is a creature of that agreement, and into that agreement 
 it does not appear to me we have any power whatever to inquire. 
 It seems to me, therefore, the case falls to the ground from want of 
 juiisdiction." 
 
 The case was subsequently heard on the merits, when Sir 
 Frederick Peel said, in the course of his judgment : — 
 
 " The applicants now complain of theii' being refused a siding 
 as an undue and unreasonable prejudice, and as denying them a 
 reasonable facility for their traffic, a facility not only as dispensing 
 with cartage, but as saving also time and expense in depositing the 
 grain in their warehouse. They refer to the sidings given by the 
 company to Messrs. Wheeldon at Derby, to Messrs. Meakin at 
 Burton, and to many maltsters in Newark and other places, and
 
 DUE AND REAFiONABLE FACILITIES. 287 
 
 complain of it as imposing upon them an undue disadvantage that Ch. xiv. 
 
 the railway company refuse to treat them in the same manner in '. 1 
 
 respect of siding accommodation. The railway company, in answer 
 to this application, contend that we have no jurisdiction to entertain 
 the question raised by it, considered either as a question whether 
 the applicants shall have a siding at which the railway company 
 shall be bound to deliver traffic instead of at their goods station, 
 or as a question whether the railway company exceeded their 
 power in exercising the right reserved to them by the siding 
 agreement of taking iip the siding whenever they might tliink 
 proper. They argue that a siding can only be laid down with the 
 consent of the railway company, or under the provisions of the 
 Eailways Clauses Act, 1845, s. 76, and that in the latter case, 
 though they are bound to let the siding be constructed, they are 
 not bound to use or work it. But there can, I think, be no doubt 
 that the Traffic Act of 1854, which enacts in such general terms 
 that a railway company shall in no respect whatsoever give any 
 undue preference or advantage, is as much applicable to a siding, 
 both as to construction and user, as to any other means of affording 
 facilities or conveniences to traffic ; and though the company may 
 have been within their right in cancelling the applicants' agree- 
 ment, yet if the company have entered into and still have similar 
 agreements with other maltsters with whom the applicants compete, 
 the existence of these agreements may furnish a ground for a 
 complaint of undue preference or prejudice, and may make it 
 necessary for the company, if they continue to give sidings to 
 others, to put dow^n also a siding for the applicants, so that all 
 may be treated alike. If there was here no question of partiality 
 shown to others, and a siding was claimed merely on the ground 
 of due facility, it seems to me the company w^ould have a good 
 defence to the claim in their statement that they give due facilities 
 for all traffic at their general goods station at Derby, and that it 
 rests with them to say at what points at that terminus they will 
 receive or deliver traffic of which they are the carriers, and even if 
 due facilities were not given, it would more likely be a case for
 
 288 THE LA W OF CARRIERS. 
 
 Ch. XIV. an Iniimction in general terms to make proper arrangements, 
 
 Art 238 JO 
 '. '- than for an order to execute any specific work, such as a private 
 
 siding." 
 
 Mr. Commissioner Price said : — 
 
 " The applicants ask that under the circumstances we shall 
 make — 
 
 " 1st. An order enjoining the company to afford, according to their 
 powers, all reasonable facilities for the receiving, forwarding, and 
 delivering of the applicants' traffic, upon the company's railway at 
 Derby ; and 
 
 "2nd. An order enjoining the company not to subject the 
 applicants to the undue and unreasonable prejudice and disad- 
 vantage, and to desist from giving to others the undue and 
 unreasonable preference and advantage above complained of. 
 
 " I am of the same opinion now as that expressed by me in a 
 judgment given by this Court in the case of the Beeston Brewery 
 Company, Limited, on January 20, of this year, that a siding 
 constructed under an agreement with a railway company for the 
 private use of a trader is the creature of an agreement into which 
 we have no power to inquire, and which we have no jurisdiction 
 to enforce. For the purpose of this judgment, therefore, I treat 
 the siding or branch railway, the partial removal of which is 
 complained of, as non-existent. 
 
 " With respect to the first order asked for, I am of opinion that 
 a railway company affords all reasonable facility for the receiving, 
 forwarding, and delivering of trafiic, as provided for in the Eail- 
 way and Canal Traffic Act, 1854, when it carries such traffic into 
 its public station, and delivers it there to the consignee on sidings 
 from which it can be conveniently unloaded and carried away by 
 him. There has been no evidence to show that this reasonable 
 facility has been denied to Messrs. Girardot, Flinn and Co., and I 
 do not consider therefore that any case has been made out for the 
 order as asked for. 
 
 " And with respect to the second order, I do not think that we 
 have any power to require a railway company to lay down, or to
 
 DUE AND REASONABLE FACILITIES. 289 
 
 restore, a siding or branch railway for an adjoining landowner, Ch. xiv . 
 
 even though he may be suffering prejudice or disadvantage by '■ 1- 
 
 reason of the enjoyment of that accommodation by others. The 
 rights of adjoining landowners are defined and protected by 8 Vict. 
 c. 20, s. 76, and we have no jurisdiction under that statute. 
 
 " Nor do I think that we could order a branch line as a reason- 
 able facility under section 2 of the Eailway and Canal Traffic Act, 
 1854, and I consider that we are restrained from doing so by the 
 judgment of the Court of Appeal in the case of the Soufh Emfcrn 
 By. Co. v. The Rail way Commissioners ami the Corporation of 
 Hastings. In this judgment it was laid down by the Lord Chan- 
 cellor that we had no jurisdiction to order certain things as facili- 
 ties ' partly because those things were beyond the company's power, 
 partly because they were not facilities reasonably necessary for the 
 particular purposes mentioned in the Act, and partly because it 
 would have required particular structural works to be executed 
 which are not prescribed by the Act, and which cannot be supposed 
 to be the only possible means of affording the facilities which the 
 Act does require.' 
 
 " In the view which I have taken and expressed that the convey- 
 ance of traffic by a railway company into its public station, and 
 its delivery in that station to a consignee upon a siding from 
 which it may be conveniently unloaded and carried away, suffi- 
 ciently satisfies the requirements of the Traffic Act of 1854, in the 
 matter of reasonable facilities, it necessarily follows that the con- 
 struction of a branch railway to the premises of a trader for his 
 exclusive use cannot be ' reasonably necessary for the particular 
 purpose mentioned in the Act,' and certain]y it is a ' structiu'al 
 work ' which is not ' prescribed by the Act.' 
 
 "And this ruling of the Lord Chancellor is confirmed and 
 strengthened by that of the Master of the Eolls, then Lord Justice 
 Brett, who in the same judgment lays it down that our jurisdic- 
 tion under the Eailway and Canal Traffic Act was confined to a 
 ' dealing with the existing railway and the existing station,' and 
 that we could not order ' the making of any new railway or any
 
 290 THE LAW OF CARRIERS. 
 
 Ch. XIV. new station.' I do not concur, therefore, in ^rantin^^ cither of the 
 
 Art. 238. J o D 
 
 orders asked for." 
 
 Mr. Commissioner Miller said : — 
 
 " The present application alleges, — 
 
 " First, that the taking up of the siding was wrongful : 
 
 "Secondly, that the siding was a reasonable facility under 
 section 2 of the Traffic Act : 
 
 " Thirdly, that other traders, whose names are given, have similar 
 sidings under circumstances similar to those of the applicants' 
 siding, and that the continuance of their siding, while taking up 
 that of the applicants, was an undue preference of such other 
 traders. 
 
 " The company rely upon the fact that the siding was constructed 
 under an agreement which contained a clause giving them the 
 right, which they have duly exercised, to terminate it at any time, 
 on three months' notice, and at the expiry of such notice to take 
 up the rails, &c., and they say that everything which they have 
 done was done in accordance with the agreement. 
 
 "They then contest the jurisdiction of this commission to enter- 
 tain the application : 
 
 " First, because the siding was the creature of an agreement, 
 and it has been removed in accordance with that agreement, and 
 they say that we have no jurisdiction to interpret the agreement, or 
 to enforce or overrule its terms : 
 
 " Secondly, because the right, if any, to a siding ultra agreement 
 could only arise under the Eailways Clauses Act, s. 76 ; and they 
 say that we have no jurisdiction to enforce the terms of that Act : 
 
 " Thirdly, because, as they contend, no order of ours could re- 
 quire them to work such a siding, and the existence of the siding 
 unworked could not bo a ' facility ' to the applicants within the 
 meaning of our Act. . . . 
 
 " In order rightly to consider the question, the circumstances 
 must be looked at as they existed on the day after the expiration 
 of the notice to determine the agreement, and before the siding 
 had been actually destroyed. At that time, the rights of the
 
 DUE AND REASONABLE FACILITIES. 291 
 
 applicants under the agreement were wholly gone, and they had Ch. xiv. 
 
 no right at all to call for any of the services stipulated for by the '■ 1 
 
 agreement, nor, so far as it depended on the agreement, had they 
 any right to the continued existence of the siding. But if they 
 had, on any ground independent of the agreement, a right to the 
 siding, that right was not in my opinion prejudiced by the fact 
 that the siding was originally laid down under an agreement, nor 
 could the company, by determining the agreement, take advantoge 
 of the clause which gave them leave to take up the siding, if by so 
 doing they infringed any such independent right. 
 
 " It is suggested that such right may exist on any of three 
 grounds : 
 
 " First, under section 76 of the Railways Clauses Consolidation 
 Act. 
 
 " Secondly, as a reasonable facility. 
 
 " Thirdly, to prevent an undue prejudice. 
 
 " The company admit the first ground, but they say that a right 
 based upon that section is not enforcible under any order of ours, 
 but only by way of mandamus ; and so far as the right is to be 
 regarded as one dependent solely on that section, I think that 
 argument is sound. But it is obvious that, in a very large number 
 of cases, the existence of such a siding affords great facilities for 
 receiving and delivery of traffic, and in such cases, where the com- 
 pany are not required to do any work, or expend any money, but 
 merely to permit a connexion to be made with theii* line by and at 
 the expense of the siding owners, it may well be that this tribunal 
 has jurisdiction to order the company to permit such a siding to be 
 put in, although it would have no jurisdiction to order them to 
 make it. And further, although we certainly could not order 
 them to work such a siding themselves, it may be within our juris- 
 diction to direct them to give proper facilities for its working by 
 the owners in such cases, and on such terms, as may be reasonable ; 
 and it appears to me that this jurisdiction may well bo con- 
 current with and unaffected by the existence of a totally diffe- 
 rent remedy, depending upon quite different considerations, 
 
 u2
 
 292 THE LAW OF CARRIERS. 
 
 Ch. XIV. producing quite different results, and enforeible in a totally 
 
 different manner. 
 
 " The circumstances of this ease, however, do not really raise 
 this question, but only a somewhat narrower one, namely, whether, 
 when such a f acihty actually exists, and has been in working order 
 for a time sufficient to test its operation, the company are at liberty 
 arbitrarily to put an end to it, on the ground that it came into 
 existence by virtue of an agreement which has been legitimately 
 terminated, and w^hich contained such a clause as the one now 
 relied upon. 
 
 " For the pm-pose of considering this point I will assume that 
 the siding in question is one, the construction of which could have 
 been enforced under sect. 76. True, I have no jurisdiction to 
 determine that Cjuestion, but I must assume it one way or the 
 other, and I cannot assume it against the applicants, for the fol- 
 lowing reason: The Act of Parliament gives every adjoining 
 landowner an absolute right ex debito justitice to a branch railway, 
 except in certain specified cases, one of which — the only one which 
 can be suggested as applicable to the jiresent case — is, that the 
 company ' shall not be bound to make such openings in any place 
 which they shall have set apart for any specific purpose with 
 which such communication would interfere.' This siding is no 
 doubt at a place ' set apart for a specific purpose,' namely, a 
 station ; but where such a connexion has existed without question 
 for a number of years, and where the company do not allege any 
 physical change of circumstances, either in the construction of the 
 station or the volume or character of the traffic, which would render 
 that inconvenient now which had hitherto been convenient, it ap- 
 pears to me that it would be an insult to common sense to suggest 
 that any Court could be found to believe that such a siding, under 
 such circumstances, would ' interfere mth ' the pui'pose for which 
 the particular place was set apart. Now assuming the siding to 
 be legally in existence, whether by order under sect. 76, or other- 
 wise, the question whether the company ought reasonably to be 
 required to render any and what facilities for receipt and delivery
 
 DUE Al^D REASONABLE FACILITIES. 293 
 
 of traffic thereat, of course not thereon or thereover, would clear!}- Ch. xiv. 
 
 Art 238 
 be matter for our determination under sect. 2 of the Traffic Act ; 
 
 and it is at least not clear to me that this jurisdiction would not 
 extend to a case where the siding was originally put in by agree- 
 ment, which agreement had been legitimately terminated, and all 
 rights dependent upon it extinguished, but where, nevertheless, an 
 independent right to a facility existed which the company were 
 unreasonably seeking to interfere with. But I do not think it 
 necessary to determine this question either ; because, assuming the 
 jm-isdiction to exist, I am of opinion that imder the circumstances 
 of this siding it would not be reasonable to require the company 
 to afford the facilities desired, except upon the terms of being paid 
 the Derby station to station rates for the time being without rebate 
 or deduction, assuming these rates to be in themselves unobjection- 
 able, and the company are willing and have offered to restore the 
 siding upon these terms." 
 
 239. Where it is doubtful whether a junction which 
 is sought by a^oplicants as a reasonable facility would 
 be allowed by the Board of Trade to be used, if ordered 
 by the Commissioners and constructed by the railway 
 company; and where the mode of working such junc- 
 tion would be unsatisfactory and obstructive to the 
 other traffic on the main line, such a junction is not a 
 due facility within the meaning of sect. 2 of the Rail- 
 way and Canal Traffic Act, 1854. 
 
 An injunction to a company to work traffic will only 
 be issued where there is a well-founded ground of 
 complaint in respect of past working, and the ques- 
 tion of proper facilities for the receipt, &c. of traffic at 
 a junction does not arise until the junction exists. 
 
 If a junction could not be reasonably worked when 
 constructed, a railway company could not be enjoined
 
 294 THE LAW OF CARRIERS. 
 
 ch. XIV. to construct it as a reasonable facility. (Dublin WhisTcy 
 
 Art 239 »' \ " 
 
 ■ — '■ — '- Distillery Co. v. 3Iidland G. W. of Ireland By, Co., -4 
 Ey. & Ca. Tr. Cas. 3.2. ^qq post, Art. 246.) 
 
 The Bail way Commissioners, in delivering judgment, said: — 
 " This case, as it was opened by counsel, was an application for 
 an order dii-ecting the respondents to connect a siding of the appli- 
 cants with their Liffey branch line, and to receive and deliver 
 traffic at the junction. The siding has been constructed with 
 reference to the provisions of the Eailway Clauses Act, 1845, which 
 enacts that any one who has land adjoining a railway, or the con- 
 sent of the owner of such land, may lay down a siding upon it, and 
 require such siding to be made by the railway company to com- 
 municate with their railway, except as to places where such com- 
 munication would cause inconvenience or danger to their traffic. 
 The respondents deny the right of the applicants to a junction 
 under the Eailway Clauses Act, 1845, and the applicants have 
 taken no steps under that Act to enforce theu- claim. They have 
 preferred to proceed under the Traffic Act, 1854, and they contend 
 that what they ask to have done is a reasonable facility within the 
 meaning of that Act. They intimated, however, in the course of 
 the hearing that they did not at present seek an order to work 
 traffic ; and it is clear that as such an order could only be issued 
 upon a well-founded ground of complaint in respect of past work- 
 ing, there is as yet no case for one, and that a siding must be 
 joined to the railway, or a communication of some sort opened 
 before the question can arise whether proper working facilities are 
 afforded at the siding junction. . . . 
 
 "The apx)licants have now laid out a private siding adjoining the 
 railway, but the company refuse to have a junction with it, and 
 the question is whether a junction is, in the circumstances, one of 
 those reasonable facilities for traffic which the Traffic Act, 1854, 
 makes it the duty of railway companies to afford. The applicants 
 assert that they have by the Eailway Clauses Act, 1845, a right to 
 a junction, and assuming the statutory obligation and proof of the
 
 DUE AND REASONABLE FACILITIES. 295 
 
 failure to comply with it, that alone misrht be sufficient for a Ch. xiv. 
 . ° . Art. 239. 
 mandamus to issue against the company in default. This, how 
 
 ever, is not a proceeding for a breach of that Act, but of the 
 Eailway Traffic Act, 1854, and the objection is raised on behalf of 
 the company, that no special or private right, such as this, is en- 
 forceable at all through the Traffic Act, 1854, which is not, it was 
 argued by counsel, an Act that is concerned with any facilities but 
 those of a public character. We will revert, if necessary, to that 
 argument ; but at any rate something more than the mere fact that 
 such a right exists would in a complaint imder the Traffic Act, 
 w^here reasonableness is so material an element, be required to 
 establish it, and if, for example, it would not be practicable to 
 work a junction if made, the making of it could hardly be enjoined 
 upon a company as a reasonable facility for traffic. ... A siding 
 junction as proposed by the applicants would be unusable for at 
 least half the traffic which it has in view, and of course the sanction 
 of the Board of Trade would be required before it could be used at 
 all ; and although the applicants only ask at present for an order 
 directing the company to construct a junction, the propriety of 
 granting an order even so limited depends upon the effect such a 
 junction, when it comes to a question of using it, may be expected 
 to have upon traffic. If it would have no effect at all, because it 
 would not satisfy the conditions upon which the Board of Trade 
 give their sanction to a junction being used, or if it would be an 
 advantage to particular traffic, but an advantage that would be 
 outweighed by its interference with the coui'se of traffic in general, 
 it would not be right to make the order. The test to be applied is 
 the facility to traffic, and we feel it to be so uncertain whether the 
 proposed junction earned out according to the plan of the appli- 
 cants would be allowed to be used by those with whom the de- 
 cision on that point would rest, and also the mode of w^orking 
 which the proposed junction would requii'e, as explained in the 
 evidence for the applicants, to be so unsatisfactory, that we do not 
 think the junction would be a facility within the meaning of the 
 Act, and we must therefore decline to make an order for it."
 
 296 THE LA W OF CAMIERS. 
 
 A^t^4o' S40. A railway company give only a reasonable 
 
 facility in running over a portion of foreign line or 
 
 siding to collect traffic, properly placed for that purpose, 
 where such line has been conveniently planned for their 
 having access to it, and where they have no reserve 
 line of their own. ( Watlcmson v. Wrexham, ^^c. Ry. Co., 
 3 Ry. & Ca. Tr. Ca. 5.) 
 
 In that case a railway company •worked a line for the carriage 
 of minerals, which was connected with colheries by junctions to 
 private sidings. The company had no power to make a terminal 
 charge for services at the junctions of their line with the sidings. 
 The company's trains called for trucks standing in the different 
 sidings. At each junction the engine was detached and ran off 
 the main hne into the siding beyond the company's lands, from 
 which it drew out any trucks ready to start and attached them to 
 the train. The engine had, besides, frequently to perform shunting 
 and marshalling, so as to pick out a number of trucks, full and 
 empty, such as were to be added to the train. The railway com- 
 pany charged for the work done on the sidings a fixed sum of Zcl. 
 per ton, in addition to the mileage rate for conveyance on the rail- 
 way company's own line. It was held that the company were not 
 entitled to make such charge, and that, as the plan of each siding, 
 as well as its junction, had received the approval of the engineer of 
 the railway company, the owners of the sidings did all that was 
 necessary to entitle them to have their traffic taken by the railway 
 company at the mileage rate, and free of any charge for terminal 
 services, if they placed their trucks as near to the junctions as they 
 could be brought with safety to the main line, arranged in proper 
 order, and clear of any obstacles to their being moved away. 
 
 241. A railway company is not bound to provide 
 booking offices for traffic at places off their railway,
 
 DUE AND REASONABLE FACILITIES. 297 
 
 nor to arrange for the conveyance by road of goods ch^ xw. 
 between such places to the nearest station on their 
 railway. {Dublin ^' Meath Rij. Co. \. Midland., Gt. 
 West of Ireland Ry. Co., 3 Ry. & Ca. Tr. Ca. 
 379.) 
 
 The Commissioners, in delivering judgment, said : — " It is, no * 
 doubt, to the benefit of places that are situated some miles from a 
 railway station that there should be persons to collect and deliver 
 goods regularly as carriers. Baiheborough and Carrickmacross are 
 six or seven miles from Kingscourt, and the complaint under this 
 head is that the Midland do not do, as the Great Northern, have a 
 booking office at those places, and arrange for the prompt and 
 punctual transport of goods by road to and from their nearest rail- 
 way station. We, however, do not think that a railway company 
 is responsible for making carrying arrangements by road in addi- 
 tion to its proper business of carrying by railway ; and the agree- 
 ments between the two companies do not seem to us to impose on 
 the Midland any such obligation, either directly or as a consequence 
 of another railway company competing with it for traffic under- 
 taking to collect and deliver goods in order to attract traffic to its 
 own line." 
 
 242. A railway company is nnder the same obli- 
 gations as a common carrier, undertaking to carry in 
 accordance with the provisions of the Railway and 
 Canal Traffic Act, 1854, therefore questions as to how 
 far a sender of goods may require delivery at any 
 station he may appoint is to be determined not with 
 reference to what a railway company may choose to 
 do, or may ordinarily do, but with reference to what 
 may be within its powers, and at the same time a rea-
 
 298 THE LAW OF OARlilERS. 
 
 cii-xiv. sonablc requirement. (TJiomas v. N. Staff. Ry. Co.^ 
 ante^ p. 116.) 
 
 In that case a railway company delivered minerals at T. station, 
 but refused to deliver their damageable traffic consigned to the 
 applicant, and delivered such traffic at L., one mile and a half 
 from T., which was their general goods station for T. 
 
 The accommodation at T. station being insufficient to receive all 
 the T. goods traffic, and the railway company having no power to 
 enlarge it, it was held that the applicant was not entitled to have 
 damageable goods delivered at that station. 
 
 It seemed that if the accommodation at T. station had been 
 sufficient to receive all traffic similarly sent, the company would 
 have been ordered to deliver damageable goods to the applicant at 
 T. station. 
 
 III. — On through Teaffic under Sect. 2 of the 
 Eailway and Canal Traffic Act, 1854. 
 
 243. Every railway company and canal company 
 and railway and canal company having or working- 
 railways or canals which form part of a continuous 
 line of railway or canal or railway and canal com- 
 munication, or which have the terminus, station, or 
 wharf of the one near {i.e., by interpretation clause of 
 tlie Act, within one mile) the terminus, station, or 
 wharf of the other, shall afford all due and reasonable
 
 DUE AND REASONABLE FACILITIES. 299 
 
 facilities for receiving and forwarding all the traffic ^^^•^'^^^^ 
 arriving by one of such railways or canals by the 
 otherj without any unreasonable delay, and without 
 any such preference or advantage, or prejudice or dis- 
 advantage, as aforesaid, and so that no obstruction 
 may be offered to the public desirous of using such 
 railways or canals or railways and canals as a con- 
 tinuous line of communication, and so that all reason- 
 able accommodation may, by means of the railways 
 (which include stations and sidings) and canals of the 
 several companies, be at all times afforded to the 
 public in that behalf. (Railway and Canal Traffic 
 Act, 1854, s. 2. 17 & 18 Vict. c. 31.) 
 
 " The Act of 1854 requires the interests of traffic coming to a 
 line from other lines to be as much cared for as those of local traffic. 
 It requires that it should be made as easy to go from any place on 
 the railway of one company to any place on the railway, forming a 
 through route, of another company, as if both railways belonged to 
 the same company. Where, however, companies are competing, 
 arrangements for working their lines in harmony are not unfre- 
 quently overlooked, and the provisions of the Act, and ready means 
 of enforcing them, are very necessary to prevent through traffic 
 being impeded." (4th Annual Eeport of the Railway Commis- 
 sioners.) 
 
 Two railway companies ran trains to C, and each had a station 
 there. The stations v/ere 55 chains apart, but were connected by 
 a line of railway belonging to one of such railway companies. 
 Upon complaint by the inhabitants of the district that no pas- 
 sengers were conveyed 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 faciUtics for forwarding through
 
 300 THE LA W OF CARRIERS. 
 
 Ch. XIV. passenger trafEc arriving by one of the lines at C. by tbe other. 
 ''^' {James and others v. Taf Vale and G. W. By. Cos., 3 Ey. & Ca. 
 
 Tr. Ca. 540.) 
 
 Two railway companies ran trains to T. W., and each had a 
 station there. The stations were a mile apart from each other, but 
 were connected by a line of railway, which was used for the tra,nsit 
 of goods only. The two railway systems were intended by the 
 Legislature to join at T. W. Upon complaint by the inhabitants 
 of the district that no passengers were conveyed on the railway 
 between the two stations, although there was a continuous line of 
 railway, the Commissioners held, that the case came within 
 sect. 2 of the Eailway and Canal Traffic Act, 1854, and accord- 
 ingly an order was made enjoining both the companies to afford 
 a continuous communication for passengers as well as for goods 
 by means of their continuous lines. {Uchfiekl Loeal Board v. 
 L. B. and S. E. By. Cos., 3 Ey. & Ca. Tr. Ca. 214.) 
 
 The Commissioners in delivering judgment said : — 
 
 " This is a complaint by the Uckfield Local Board under sect. 13 
 of the Act of 1873, and as in such case requu'ed, it is accompanied 
 by a certificate of the Board of Trade to the eifect that they con- 
 sider the local board to have proper grounds for submitting it. 
 They come before us to complain that passengers are not conveyed 
 by railway between the stations of the Brighton and the South 
 Eastern Eailway Companies at Tunbridge Wells. The transit at 
 present has to be made by road, but a railway exists and is used 
 for goods, and the application is that it may be used for passengers 
 also. The Lewes and Tunbridge Wells Branch of the Brighton 
 Company extends fifty-two chains beyond their station, and then 
 terminates by a junction with the Hastings and Tunbridge Wells 
 Branch of the South Eastern Company at a point on that branch 
 which is twenty-two chains from the South Eastern station, so that 
 the two stations are nearly one mile apart. The portion of the 
 Brighton Company's railway between their station and the end of 
 the line has been long completed, but it has never been opened
 
 DUE AND REASONABLE FACILITIES. 301 
 
 for passenger traffic, nor notice of an intention of opening it given Ch. xiv, 
 to the Board of Trade. — '. '. 
 
 " The accommodation which a through route for passenger 
 traffic would afford to the public at Uckfleld is evident. The 
 communication between their part of East Sussex and places in 
 Kent is necessarily by Tunbridge "Wells, and fi'om Uckfield by 
 Tunbridge Wells, and thence by the South Eastern line to Cannon 
 Street and Charing Cross, ought to be as good a route to London 
 as that by Lewes and the Brighton line, and in any case as a 
 • second route would be a great convenience. The two railway 
 systems were intended to be connected, and the Act under which 
 the line from Uckfield to Tunbridge Wells was constructed pro- 
 vides for its terminating by a junction with the South Eastern 
 Eailway. The case therefore falls within the second section of 
 the Traffic Act of 1854, which enacts that where there is a con- 
 tinuous line of railway, every company having railways which 
 form part of it, shall afford all due and reasonable facilities for 
 receiving 'and forwarding all the traffic arriving by one of such 
 railways by the other without delay, and so that no obstruction 
 may be offered to the public, desu-ous of using such railways 
 
 as a continuous line of communication The 
 
 order will be framed in general terms, following the words of 
 the second section of the Traffic Act of 1854, and enjoining the 
 two companies to afford a continuous communication by means of 
 their continuous lines. Each company must, without loss of time, 
 put itself in a position to perform its part of the joint business, 
 and as to those mutual arrangements on which so much depends to 
 execute the order properly, including what relates to the corres- 
 pondence of trains, and to the selection of the most convenient 
 place for delivering the traffic over, they, we think, will be better 
 determined by agreement between the companies than by dii-ections 
 from us." 
 
 Where a railway company with running powers over the defen- 
 dants' railway complained to the Commissioners that the defendants 
 refused to work the signals which the applicants had reconstructed
 
 302 ^^^^ ^-^^ ^^ CARRIERS. 
 
 Ch. XIV. in siicli a manner as to enable the defendants' railway to be worked 
 
 Art 243 
 
 — '■ '- on the block system in pm'suance of the power given by a special 
 
 Act, the Commissioners held that the working of such signals 
 was by sect. 2 of the Eailway and Canal Traffic Act, 1854, a due 
 and reasonable facility which the defendants should afford for the 
 receiving, &c. of passenger traffic, and that the defendants, by 
 refusing or omitting to work the signals, had offered obstructions 
 to the public desirous of using the applicants' and defendants' 
 railway as a continuous line of communication. {O. W. Ry. 
 Co. and Midland Ry. Co. v. Bristol Port Ry. and Pier Co., 5 Ey. 
 & Ca. Tr. Ca. 94.) 
 
 244. In order to induce interference under the 
 Eailway and Canal Traffic Act, 1854, for the purjoose 
 of enjoining a railway company to run through trains 
 on a continuous line of railways, it is not. necessary to 
 show a case of individual grievance, but it is necessary 
 to show a case of public inconvenience. {Barret v. Gt. 
 K and Midland By. Cos., 26 L. J. C. P. 83 ; 1 C. B. N. S. 
 423 ; 1 Ry. & Ca. Tr. Ca. 38.) 
 
 See Art. 247, p. 304. 
 
 245. Where railways owned by different companies 
 are coterminous and form a continuous line, sucli 
 companies are bound to use their utmost diligence 
 in sending traffic over their respective routes. The 
 obligation imposed upon every railway company to 
 afford all due and reasonable facilities for receiving 
 and forwarding by its railway traffic coming by 
 another, which forms with it a continuous line of 
 communication, is not limited to the cases in which
 
 DUE AND REASONABLE FACILITIES, 303 
 
 a railway company lias accommodation to take over ch. xiv, 
 such traffic at the j^oint of junction. ( Victoria ColUcrtj — '■ — - 
 Co. V. Midland and Ncaili and Brecon Rij. Cos., 3 Ry. 
 & Ca. Tr. Ca. 37.) 
 
 This was a complaint by the lessees of a coUieiy, situated on the 
 N. and B. Eailway, at a short distance from its junction with the 
 M. Eailway to S., that they were prevented sending the traffic of 
 their colliery to S. by the railways of the two companies, which 
 formed a direct route, and in consequence had to send it by a cir- 
 cuitous route ; it was proved that the two railways fonned a con- 
 tinuous line of communication, and that, physically, there was no 
 difficulty in the traffic of the colliery being carried to S. by the 
 direct route. 
 
 It was held that the applicants were entitled, under sect. 2 of 
 the Eailway and Canal Traffic Act, 1854, to have then- traffic con- 
 veyed by any route they pleased, and to use the two railways as if 
 they were one continuous line. 
 
 See Wato'ford and Limericlc Ry. Co. v. Gt. S. and Western Ei/. 
 Co., 7th Annual Eeport of the Eailway Commissioners. 
 
 246. Until works necessary for the exchange of 
 traffic at the junction of connecting lines are completed 
 and sanctioned by the Board of Trade, the route is not 
 a '^ continuous line of railway communication." {Hani- 
 mans, Foster and others v. G, W. Ry. Co. and others, 4 
 %. & Ca. Tr. Ca. 181 ; see ante, Art. 239.) 
 
 In that case it appeared that the S. and M. Company were the 
 owners of a railway in two sections connected by lines belonging 
 to two other companies which were worked by the Great Western 
 Eailway Company. The S. and M. Company did not book or 
 work traffic between their two sections, and the Great Western
 
 304 THE LAW OF CARRIERS. 
 
 Ch. XIV. Eailway Com^^nj did not book from tlie stations on tlie lines 
 ' worked by them to stations on either section of the S. and M. Com- 
 
 pany's Eailway. To permit of the exchange of traffic required by 
 the applicants, sidings and other accommodation at one of the 
 junctions was necessary. It was held by the Commissioners that 
 the failure to provide these between the 25th April and the 29th 
 June, during which time the companies were considering the 
 alterations which were necessary to enable the S. and M. Company 
 to exercise their running powers over those connecting lines, was 
 not a failure to provide facilities for the receiving, forwarding and 
 delivery of traffic ; and that the route, until so completed and 
 sanctioned by the Board of Trade, was not a continuous line of 
 railway communication. 
 
 247. It is no answer to the public, desirous of 
 using railways as a continuous line, that there are 
 disputes as to the rights of the companies inter se. 
 {IlammanSj Foster and others v. G. W. Ry. Co, and others^ 
 4 Ry. & Ca. Tr. Ca. 181.) 
 
 In that case the junction between the northern section of the S. 
 and M. Company's railway and that of the M. Company was at M., 
 and it was physically complete, but was not opened because the S. 
 and M. Company had not given the necessary notice. As the 
 application asked for an order against the dreat Western Company 
 only, an injunction was refused. 
 
 See Great Western Ry. Co. and Midland Ry. Co. v. Bristol Port 
 By. and Pier Co. (5 Ey. & Ca. Tr. Ca. 94), ante, p. 302. 
 
 The case of Watson and others v. Sicindon, SfC.By. Co. and G. W. 
 By. Co. (9th Eeport of Eailway Commissioners), was a complaint that 
 the public were prevented using the Great Western Eailway, and a 
 railway which made a junction with it at Swindon, as a continuous 
 line of communication. The railway from Swindon to Andover 
 commences by a junction with the Great Western Eailway near thQ
 
 DUE AND REASONABLE FACILITIES. 305 
 
 Swindon station, and the Act authorizing the railway provides for Ch. xiv. 
 its traffic being accommodated in the Swindon station of the Great ^''^' ^^^' 
 Western Company, and for the use of the station for that purpose, and 
 the terms and conditions thereof being settled by agreement; and the 
 two companies subsequently agreed that the Swindon and Andover 
 Company should have all necessary facilities for the working of 
 their traffic in the Great Western station, and full running powers 
 between the station and the junction, and that the terms and con- 
 ditions to which it should be subject should, if not agreed upon, be 
 settled by an arbitrator. The Swindon railway was in due eoui'se 
 completed and opened for traffic, but the two companies had not 
 yet agreed upon the terms, and, pending their coming to a settle- 
 ment, the Great Western Eailway Company would not allow traffic 
 to or from that railway to pass through the junction, or to be 
 accommodated at their station. The only way, therefore, of trans- 
 ferring traffic from one railway to the other was to cart it by road 
 between their nearest stations, and the object of the application was 
 to put a stop to this, and to procure an order for the traffic being 
 worked through by railway, and so to prevent further inconvenience 
 to the public through differences between the companies. The 
 Commissioners said that whatever might be the respective rights of 
 the companies, ihej furnished no ground for an interference with 
 the right of the public to have the railways available for use; that 
 it must be understood that neither company was at liberty, by reason 
 of any misconduct on the part of the other, to refuse to afford the 
 facilities for through traffic required by the second section of the 
 Act of 1854; that, whatever remedies for enforcing its claims mio-ht 
 be open to either company, stoppage of the through communication 
 was not one of those remedies, and that any attempt to bring the 
 other company to reason by refusing, on this ground only, to 
 receive or forward the traffic, would be treated by the Commis- 
 sioners, if complained of, as a contravention of the Traffic Act ; 
 that it was clear that sect. 2 of the Traffic Act, which requires 
 every railway company having a railway forming part of a con- 
 tinuous lino of communication to afford all due and reasonable 
 
 M.
 
 306 "^nE LAW OF CARBIERS. 
 
 Ch. XIV. facilities for receiving and forwarding all the traffic arriving hj 
 ^^' one of such railways by the other without any unreasonable delay, 
 
 was not being complied with, and that the applicants were entitled 
 to have their grounds of complaint removed. There was indeed 
 a difficulty about ordering an exchange at the point of junction, 
 the junction not having been designed as a place of exchange, and 
 having no suitable sidings for the purpose. It was, however, well 
 laid out and properly signalled for running through, and not only 
 was it in the power of the Grreat Western Company at once to 
 permit the Swindon Company to use their line and station, but 
 they had, besides, the alternative of themselves taking the traffic 
 over the S"^dndon Company's line and delivering it to that company 
 at one of their stations. They had no hesitation, therefore, in 
 requiring traffic that had to pass from one of those railways to the 
 other to be conveyed across by railway, and they directed that, 
 unless the Great Western Company should elect to do the con- 
 veyance themselves, they should permit it to be done by the 
 Swindon Company. 
 
 248. It is doubtful whether the facilities neces- 
 sary to enable a company to work its traffic over the 
 railway of another company, or, in other words, to 
 exercise its running powers, are facilities an owning 
 company are bound to provide under the Railway 
 and Canal Traffic Act, 1854, unless the matters re- 
 quired are such as are necessary to keep their own 
 line in a proper condition for the receipt, forwarding, 
 and delivery of traffic. {The Stvindon, Marlborough^ and 
 Andover Raihvay Company v. The Great Western Railivay 
 Company and others^ 4 Ry. & Ca. Tr. Ca. 173.) 
 
 The Railway Commissioners cannot give running powers (except 
 by consent) unless it is a reasonable facility for forwarding, &c.
 
 DUE AND REASONABLE FACILITIES, 307 
 
 fraffic within the meaning of sect. 2 of the Eailway and Canal Ch. xiv. 
 
 Art 248 
 
 Traffic Act, 1854, It is submitted it is not. " 
 
 The exercise of running powers differs from through rates and 
 traffic in this — that the running company use their own engines 
 and carriages on the line of the owning company ; whereas, in the 
 ease of through rates, the forwarding company carry on their own 
 line, by their own engines and carriages, the goods, &c. sent on by 
 the sending company. 
 
 In order to arrive at amount to be paid by running company to 
 owning company — 
 
 (a) For passe II (jers — let running company propose or fix fare or 
 rate ; deduct from it passenger dutj^, as that would have 
 to be paid by company which issues the ticket ; divide 
 remainder according to mileage; deduct from mileage 
 proportion of owning company the working expenses of 
 the running company, so far as they relate to locomotive 
 power, rolling stock, and servants with train (say 30 
 per cent), 
 (b) For goods — deduct terminals; then mileage proportion; 
 then deduct, as above, working expenses (say 2b per cent.) 
 from proportion of owning company. 
 For local traffic it is usual to allow the running company only 
 15 per cent, for working expenses. 
 
 The Commissioners have now jurisdiction to enforce the provi- 
 sions in a railway company's special Act, ante, Art. 233. 
 
 S49. Thi'oiigh booking is a facility under sect. 2 
 of tlie Railway and Canal Traffic Act, 1854. It is 
 not necessary, in order to establish a claim to through 
 booking, that the service should be continuous by 
 the same trains, or by a connection between trains. 
 [Innes v. London, Brighton, and London and S. W. By. 
 Cos., 2 Ry. & Ca. Tr. Ca. 155.) 
 
 The Railway and Canal Traffic Act, 1854, s. 2, gives 
 
 x2
 
 308 THE LAW OF OARRIERS. 
 
 ch. XIV. a customer a right to require any number of railway 
 companies in Great Britain to combine to form a con- 
 tinuous route by which his traffic may be sent at a 
 single booking and for a single payment. ( G. W. Ry. 
 Co.Y. Severn 6c Wije By. Co., 5 Ry. & Ca. Tr. Ca. 170.) 
 
 A railway company received goods for conveyance from places 
 on their own railway to places on the railway of another company. 
 There was through communication between such places by a con- 
 tinuous line of railway. The sending company refused to hook 
 Buch goods through to their destination, and only invoiced them 
 locally to the end of their railway, where they were re-booked to 
 the stations on the forwarding company's line, to which they were 
 directed to be delivered. 
 
 It was held that the sending company must allow through 
 booking from their stations to stations on the forwarding com- 
 pany's line ; that through booking was a facility which railway 
 companies may reasonably be required to afford, and, as exhibiting 
 the total charge made for conveyance from end to end, was 
 especially of use where doubts existed whether companies were 
 making unequal or excessive charges. {Ucl'field Local Board v. 
 London, Brighton, and South Eastern B)j. Cos., 2 Ry. & Ca, Tr. Ca. 
 214.) 
 
 In Innes's case the Commissioners said : — " On the subject of 
 traffic between the joint line and Victoria, we observe that one 
 route open to a passenger is that by Wimbledon and Clapham 
 Junction. At present, however, a passenger by this route has to 
 take a fresh ticket at Clapham Junction, the trains between 
 Clapham Junction and Victoria being Brighton trains. Mr. 
 Knight expressed the readiness of his company to concur in any 
 proper arrangement which would dispense with this booking at 
 Clapham, and it appears to us that passengers to and from the 
 joint line, desirous of using the railways of the two companies as 
 a continuous line of communication, are entitled to an order from 
 us that the two companies shall aiiord them the facility of 
 travelling by such railways between the joint line and Victoria
 
 DUE AND REABONABLE FACILITIES. 309 
 
 via Wimbledon and Clapliam Junction without tlie delay and ^^- xiv. 
 
 • . 1 • 1 • ^1 Art. 249. 
 
 inconvenience of booking at the latter station. 
 
 260. If tliero were two competing companies having 
 lines from A. to B., and one of them had a continuation 
 from B. to C, and the company having such continua- 
 tion arranged the departures from B. so as to interfere 
 seriously with the other line, and put the public to 
 inconvenience thereby, and forced the traffic to B. over 
 a greater extent of line, at a sacrifice of time or cost, 
 the Eailway Commissioners would interfere upon an 
 application made to them. (Barret v. Gt. N. (^' Mid- 
 land Ry. Com^janies^ anU^ Art. 244, p. 302 ; Hodges on 
 Eailways, 6th ed. 525.) 
 
 Cockburn, C. J., said : "I can quite understand that two com- 
 peting 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, though the distance is somewhat longer, no additional 
 cost is incurred, nor any materially greater loss of time sustained 
 by the public." 
 
 It was provided by statute that the C. Eailway Company should, 
 for the accommodation of certain traffic, run and carry forward 
 between L. and P. a train in conjunction with every train which 
 should be run by the E. C. Companies, for the accommodation of 
 that traffic, between L. and places on theu' lines ; the speed and 
 places of stoppage of such train to be regulated by the E. C. 
 Companies. 
 
 It was held that the E. C. Companies could enforce an alteration 
 in the service of trains run in conjunction by the C. Company 
 without the consent of the latter, but were not entitled to fix the 
 times of arrival and departure of such'trains.
 
 310 THE LAW OF CARRIERS. 
 
 Ch. XIV. The meaning of the expression "run in conjunction" con- 
 
 '- '- sidored. {Caledonian Rij. Co. v. Great Northern, North Eastern 8f 
 
 North British Fuj. Co., 2 Ey. & Ca. Tr. Ca. 377. See Art. 247.) 
 
 In cases where, having regard to the clauses in the special Acts, 
 an exchange of passenger traffic between two companies, free to 
 exchange at any junction between their lines, ought to be made at 
 the junction which is most convenient for the public; the fact that 
 one route is shorter than another, or one by reason of curves or 
 gradients better adapted for fast traffic, or that at one junction 
 there is a joint station, while at another there are two separate 
 stations, are all matters affecting the public. 
 
 261. The Commissioners will not make an order on 
 a complaint of diversion of traffic where the nmnber of 
 instances of diversion is so small, in proportion to the 
 amount of traffic not diverted, as to show that the 
 traffic was miscarried merely by inadvertence or mis- 
 take. (Ilammans, Foster ^ others v. Great Western 
 Ry. Co. cV others, 4 Ry. & Ca. Tr. Ca. 181.) 
 
 The existence of through booking and through rates over one 
 route which is 56 miles longer than another route, of which the 
 applicant company's line (which is run over and used under an 
 agreement by the L. & N. "W". Eailway Company) forms a part, 
 is no ground for an application against the L. & N. W. Eailway 
 Company under sect. 2 of the Eailway and Canal Traffic Act, 
 1854. [Centrat Wales S^ Carmarthen Junction Ry. Co. v. London 
 ^ North Western Ry. Co., 4 Ey. & Ca. Tr. Ca. 101.) 
 
 There were two routes between C. and C. A., the N. "W". route 
 and G-. W. route. The C W. Company having in their own 
 hands, at the outset, traffic consigned by the N. W. route to and 
 from places beyond C. and C. A., sometimes diverted such traffic 
 and carried it by theu' own route, and at other times caused undue 
 delay in the delivery thereof at C.
 
 DUE AND REASONABLE FACILITIES. 311 
 
 Upon the application of a company owning a line terminating Ch xiv 
 
 , ^ Art. 251. 
 
 at C, whicli formed part of the N. W. route, the Commissioners 
 
 granted an order enjoining the Gr. "W. Company to afford to the 
 applicants all the facilities to which they were entitled under 
 the Eailway and Canal Traffic Act, 1854. {Central Wales Sf 
 Carmarthen Junction Rij, Co. v. Great Western B.ij. Co., 2 Ry. & 
 Ca. Tr. Ca. 191.) 
 
 252. '' The Commissioners may order two or more 
 companies to whicli this part of this Act applies to 
 cany into effect an order of the Commissioners, and 
 to make mutual arrangements for that purpose, and 
 may furtlier order the companies or, in case of differ- 
 ence, any of them, to submit to the Commissioners for 
 approval a scheme for carrying into effect the order, 
 and when the Commissioners have finally approved 
 the scheme, they may order each of the companies to 
 do all that is necessary on the part and within the 
 power of such company to carry into effect the 
 scheme, and may determine the proportions in whicli 
 the respective companies are to defray the expense of 
 so doing, and may for the above purposes make, if 
 they think fit, separate orders on any one or more of 
 such companies. 
 
 '' Provided that nothing in this section shall authorise 
 the Commissioners to require two companies to do 
 anything which they would not have jurisdiction to 
 require to be done if such two companies were a single 
 company." (51 & 52 Vict. c. 25, s. U.) 
 
 Until the passing of the above enactment the Railway Com- 
 missioners had no power to make an order on two railway 
 companies to afford to the public facilities for conveyance by
 
 312 THE LAW OF CARRIERS. 
 
 Ch. XIV. doing jointly acts which neither company could do separately. 
 ^:!1l^^ (Toomcr v. L. C. 8f D. By. Co. ^ 8. E. Ry. Co., 2 Ex. D. 450 ; 
 47 L. J. Q. B. D. 276 ; 3 Ey. & Ca. Tr. Ca. 79.) 
 
 IV. — Through Rates under Sect. 25 of the Railway 
 AND Canal Traffic Act, 1888. 
 
 253. The facilities to be afforded under sect. 2 
 of the Railway and Canal Traffic Act, 1854, ''in- 
 clude the due and reasonable receiving, forwarding, 
 and delivering by every railway and canal comj^any, 
 at the request of any other such company, of through 
 traffic to and from the railway or canal of any other 
 such company at through rates, tolls or fares," and 
 also at the request of any person interested in through 
 traffic. (The Railway and Canal Traffic Act, 1888, 
 51 & 52 Vict. c. 25, s. 25.) 
 
 This section is as follows : — 
 
 " Whereas by section two of the Railway and Canal Traffic Act, 
 1854, it is enacted that every railway company and canal company 
 and railway and canal company shall, according to their respective 
 powers, afford all reasonable facilities for the receiving and for- 
 warding 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 carnages, trucks, boats, and other vehicles ; 
 and that no such company shall make or give any undue or 
 unreasonable preference or advantage to or in favour of any par- 
 ticular person or company, or any particular description of traffic, 
 in any respect whatsoever, or shall subject any particular person or 
 company, or any particular description of traffic, to any undue or 
 unreasonable prejudice or disadvantage in any respect whatsoever ;
 
 THROUGH RATES. 3l3 
 
 and that every railway company and canal company and railway Ch. xiv. 
 
 _ _ , _ Art. ^Di5. 
 
 and canal company having or working railways or canals which 
 
 form part of a continuous line of railway, or canal or railway and 
 canal communication, or which have the terminus station or wharf 
 of the one near the terminus station or wharf of the other, shall 
 afford all due and reasonable facilities for receiving and forwarding 
 by one of such railways or canals all the traffic arriving by the 
 other, without any unreasonable delay, and without any such 
 preference or advantage or prejudice or disadvantage as aforesaid, 
 and so that no obstruction may be offered to the public desirous 
 of using such railways or canals or railways and canals as a con- 
 tinuous line of communication, and so that all reasonable accom- 
 modation may by means of the railways and canals of the several 
 companies be at all times afforded to the public in that behalf : 
 
 " And whereas it is expedient to explain and amend the said 
 enactment : Be it therefore enacted, that — 
 
 " Subject as hereinafter mentioned, the said facilities to be so 
 afforded are hereby declared to and shall include the due and 
 reasonable receiving, forwarding, and delivering by every railway 
 company and canal company and railway and canal company, at 
 the request of any other such company, of through traffic to and 
 from the railway or canal of any other such company at through 
 rates, tolls, or fares (in this Act referred to as through rates) ; and 
 also the due and reasonable receiving, forwarding, and delivering 
 by every railway company and canal company and railway and 
 canal company, at the request of any person interested in through 
 traffic, of such traffic at through rates : Provided that no applica- 
 tion shall be made to the Commissioners by such person until he 
 has made a complaint to the Board of Trade under the provisions 
 of this Act as to complaints to the Board of Trade of unreasonable 
 charges, and the Board of Trade have heard the complaint in the 
 manner herein provided. 
 
 " Provided as follows : 
 
 " (1) The company or person requiring the traffic to be forwarded 
 shall give written notice of the proposed through rate to
 
 314 THE LAW OF OARRIERS. 
 
 Ch. XIV. eacli forwarding company, stating botli its amount and 
 
 '- '- the route by wliich the traffic is proposed to be forwarded ; 
 
 and when a company gives such notice it shall also state 
 the apportionment of the through rate. The proposed 
 through rate may be per truck or per ton : 
 
 " (2) Each forwarding company shall, within ten days, or such 
 longer period as the Commissioners may from time to time 
 by general order prescribe, after the receipt of such notice, 
 by written notice inform the company or persons requiring 
 the traffic to be forwarded, whether they agree to the rate 
 and route ; and if they object to either, the grounds of 
 the objection : 
 
 " (3) If at the expu^ation of the prescribed period no such objection 
 has been sent by any forwarding company, the rate shall 
 come into operation at such expiration : 
 
 " (4) If an objection to the rate or route has been sent within the 
 prescribed period, the matter shall be referred to the 
 Commissioners for their decision : 
 
 " (5) If an objection be made to the granting of the rate or to the 
 route, the Commissioners shall consider whether the 
 granting of a rate is a due and reasonable facility in the 
 interest of the public, and whether, having regard to 
 the cu-cumstances, the route proposed is a reasonable 
 route, and shall allow or refuse the rate accordingly, or 
 fix such other rate as may seem to the Commissioners 
 just and reasonable : 
 
 " (6) Where, upon the application of a person requiring traffic 
 to be forwarded, a through rate is agreed to by the for- 
 warding companies, or is made by order of the Commis- 
 sioners, the apportionment of such through rate, if not 
 agreed upon between the forwarding companies, shall be 
 determined by the Commissioners : 
 
 " (7) If the objection be only to the apportionment of the rate, 
 the rate shall come into operation at the expiration of 
 the prescribed period, but the decision of the Commis-
 
 THRO UGII RA TES. 315 
 
 sioners, as to its apportionment, sTiall be retrospective ; Ch. xiv. 
 in any other case the operation of the rate shall be — '- '- 
 
 suspended until the decision is given : 
 " (8) The Commissioners, in apportioning the through rate, shall 
 take into consideration all the circumstances of the case, 
 including any special expense incurred in respect of the 
 construction, maintenance, or working of the route, or 
 any part of the route, as well as any special charges 
 which any company may have been entitled to make in 
 respect thereof : 
 " (9) It shall not be lawful for the Commissioners in any case to 
 compel any company to accept lower mileage rates than 
 the mileage rates which such company may for the time 
 being legally be charging for like traffic carried by a like 
 mode of transit on any other line of communication 
 between the same points, being the points of departure 
 and arrival of the through route. 
 " Where a railway company or canal company use, maintain, or 
 work, or are party to an arrangement for using, maintaining, or 
 working steam vessels for the purpose of carrying on a communi- 
 cation between any towns or ports, the provisions of this section 
 shall extend to such steam vessels, and to the traffic carried 
 thereby. 
 
 " When any company, upon written notice being given as afore- 
 said, refuses or neglects without reason to agree to the proposed 
 through rates, or to the route, or to the apportionment, the Com- 
 missioners, if an order is made by them upon an application for 
 through rates, may order the respondent company or companies to 
 pay such costs to the applicants as they think fit." 
 And sect. 26 enacts that — 
 
 " Subject to the provisions in the last preceding section contained, 
 the Commissioners shall have full power to decide that any proposed 
 through rate is just and reasonable, notwithstanding that a less 
 amount may be allotted to any forwarding company out of such 
 through rate than the maximum rate such company is entitled
 
 316 THE LAW OF CARRIERS. 
 
 Ch. XIV. to charge, and to allow and apportion sucli through rate accord- 
 
 AXt. Zoo, 'If) 
 
 mgly. 
 
 It was not clear that either the public or a railway company- 
 could, under the Railway and Canal Traffic Act, 1854, requii'e as 
 a reasonable facility that through traffic should be forwarded at 
 through rates, and that there should be only one booking and 
 invoicing for the entire route. Sect. 11 of the Regulation of 
 Railways Act, 1873, carried out the recommendations contained in 
 the report of the Royal Commission on Railways in 1867, and the 
 report of the Joint Select Committee on Railway Companies 
 Amalgamation in 1872, that a railway company should be able, 
 subject to conditions, to require that through traffic to or from 
 places on the line of such company should be forwarded at through 
 rates by other railway companies. 
 
 If the requisition gives rise to differences between the companies 
 interested, either as to the route or as to the amount of the rate, 
 or as to its apportionment, the differences are to be referred to and 
 settled by the Railway Commissioners. 
 
 The Railway Rates Committee of 1882, in their report, said : — ■ 
 
 "Your committee are of opinion that the existing law as to 
 through rates is not sufficient in all cases to secure through com- 
 munication, and they think that the Railway Commissioners should 
 have power, on the application of a private trader, to order two or 
 more railway companies to make a through rate over their respective 
 systems, by a continuous line of communication, and by the shortest 
 route available. Provided that such order shall not impose on any 
 railway company a lower rate than the lowest rate on such railway 
 for similar articles under similar circumstances." 
 
 This power to grant through rates at the instance of a trader is 
 now given by the Railway and Canal Traffic Act, 1888, as set out 
 in this article; and sect. 11 of the Regulation of Railways Act, 
 1873, is repealed. 
 
 In compelling a company to accept a through rate, the Commis- 
 sioners compel them to carry traffic at less than their ordinary 
 rates.
 
 THEOUGn RA TES. 317 
 
 This is a new and exceptional power given to tlie Commissioners, Ch. xiv. 
 
 affecting the property of companies and the security of those who '■ - 
 
 have advanced money on the faith of the companies having a 
 control over the rates up to the maxima allowed by Parliament. 
 
 It is a power, therefore, which has to be]exercised with great 
 care, and the Legislature have expressly required that before the 
 Commissioners exercise it, they shall be satisfied that the granting 
 of the rate is a due and reasonable facility in the interest of the 
 public, and that, having regard to the circumstances, the route 
 proposed is a reasonable route, and shall allow or refuse the rate 
 accordingly. 
 
 By sub-sect. 5 of sect. 11, it seems to have been intended that if 
 the forwarding company object either to the rate or route, the 
 Commissioners are to consider whether the rate will be in the public 
 interest, and also whether the route is a reasonable route, and they 
 then make the allowance or refusal of the rate dependent upon the 
 Commissioners being satisfied as to both of these matters. 
 
 The Railway Commissioners, in their 4th annual report, said : — 
 " Every company has a right to propose through rates over the 
 lines of other companies, and, failing their consent to the rates 
 proposed, to refer to us to allow and apportion them at our dis- 
 cretion. We have seen it stated here and there that this right is 
 fraught with possible danger to railway propert}'-, but certainly as 
 yet it has done no harm, nor developed any tendency to harm : 
 rather it has been of excellent effect as an additional motive to 
 harmony of arrangements, and an additional motive to connected 
 companies to act as one concern in providing for the forwarding of 
 through traffic." 
 
 It seems clear that the onus of proving the proposed rate to be a 
 due and reasonable facility in the interest of the public, and the 
 route to bo a reasonable route, lies upon the applicants, because 
 the making the through rate is " subject " to the 5th proviso, and 
 also because the onus prohandi lies on him who affirms, not upon 
 him who denies. 
 
 By sub-sect. 5 of sect. 25 of the new Act, the Commissioners now
 
 318 THE LA W OF CARRIERS. 
 
 Ch. XIV. have jurisdiction to allow a different rate to that proposed. The 
 
 '- jurisdiction of the Commissioners under sect. 11 of the Regulation 
 
 of Railways Act, 1873, was simply to decide whether the proposed 
 through rate should be allowed or refused. [Ncicry 4* Armagh Ry» 
 Co. V. Gt. N. of Ireland By. Co., 3 Ry. & Ca. Tr. Ca. 28.) 
 
 The Commissioneis, in their fourth annual report, said: — "If it 
 is referred to us to allow or refuse a through rate, and the amount 
 of the rate is the point to which objection is taken, we have no 
 alternative to simply granting or refusing the rate as proposed, and 
 are without power to fix an amount for it different from that which 
 has been proposed. "We are authorized to make any division of a 
 rate we please, but if we grant the rate at all we must grant it at 
 the amount as a whole at which it has stood in the notice given of 
 it by the applicant company to the other companies. "We would 
 suggest that we should have the same power over the amount of a 
 through rate that we have over its aj)portionment." 
 
 The cases decided by the Commissioners as to through rates 
 were, of course, decided on the 11th section of the Regulation of 
 Railways Act, 1873. The provisions of that section are re-enacted 
 in sect. 25 of the new Act. A " route " within the meaning of 
 this section is a route from the station on the sending line where 
 the traffic arises, to the station on the forwarding line where such 
 traffic is deHvered. {E. 8^ W. June. By. Co. v. G. W. By. Co., 
 1 Ry. & Ca. Tr. Ca. 331.) 
 
 254. To entitle a railway company to apply for 
 througli rates, it is enough that they are a company with 
 an interest in the through route, and it is not necessary 
 to measure their interest, and to refuse them a loms 
 standi, even though their proposals should be more of 
 a detriment to other comp)anies than a benefit to them- 
 selves. [Severn cV Wye Sf Severn Bridge Ry. Co. v. G. W. 
 By. Co., 5 Ry. & Ca. Tr. Ca. 156.) 
 
 The Commissioners in their judgment said : — " The length of
 
 THROUGH RA TES. 3^9 
 
 line belonging to the applicants which is used by traffic passing Ch. xiv. 
 
 over the bridge is 4 miles 31 chains; and it is argued for the --^ ^ 
 
 Great Western Company that it is not the intention of the Act 
 of 1873 that a route which, as compared with the route in actual 
 use, makes material changes as bet^vecn the companies having 
 -the long distances should be sanctioned at the instance of a com- 
 pany whose quantum of interest in the proposed route is insignifi- 
 cant. But this does not seem to me to be the right construction to 
 be put upon the Act. The subject is traffic passing over a con- 
 tinuous line made up of the railways of two or more companies. 
 By the Act of 1854, each company is to afford to such traffic aU 
 . reasonable facilities, and there is to be no obstruction to the public 
 desirous of using the several railways as a continuous line ; and 
 any of the public may apply to enforce effect being given to the 
 Act should any reasonable facilities be withheld. Then, in 1873, it 
 is further enacted that the facilities given by the earlier Act shall 
 include under certain conditions through rates, these conditions 
 being that through rates are asked for by one of the railway com- 
 panies concerned, that the granting of what is so asked is in the 
 interest of the public, and that the route, to which the through 
 rates are applicable, is a reasonable route. For the particular fa- 
 cility therefore of through rates, an application by a railway com- 
 pany is required ; but within that limit the condition is general, 
 and the smallest company stands on a footing of equality with the 
 largest, and though the power of proposing a route ought not to 
 be used for no better purpose than to take traffic from one com- 
 pany and give it to another, the means by which the Act intends 
 that companies, large or small, shall not suffer in that way are to 
 be found in the two other conditions, and ought not to be sought 
 to be obtained by holding that companies have no locus standi given 
 them to claim a through route when their interest in the route is 
 relatively inconsiderable." 
 
 The power of proposing through rates is not Kmited to the rail- 
 way companies which have the conveyance of the traffic, or the 
 ownership of the lines on which it is either received or delivered ;
 
 320 THE LAW OF CARRIERS. 
 
 Ch. XIV. but any railway companies whose lines are part of a througli route, 
 : — '■ '- and who, though not themselves working, have nevertheless a sub- 
 stantial interest in the traffic of their lines and the proceeds of it, 
 are capable of proposing through rates. (Held by the Commis- 
 sioners in Greenoclx 8f Wcnvjss Bay Eij. Co. v. Caledonian By. Co. 
 (No. 3), 2 Ey. & Ca. Tr. Ca. 227; affirmed by the Court of 
 Session, 5 Sess. Ca. (4th Ser.) 995 ; 3 Ey. & Ca. Tr. Ca. 145. 
 Also held by the Commissioners in Central Wales 8f Carmarthen 
 Junction By. Co. and Mid Wales By. Co. v. G. W. By. Co., L. 8f 
 N. W. By. Co., Mid. By. Co., and Pemhrohe c^' Tenhy By. Co., 4 Ey. 
 & Ca. Tr. Ca. 110; affirmed by the Queen's Bench Division, 10 
 a B. D. 231 ; 52 L. J. Q. B. D. 211 ; 4 Ey. & Ca. Tr. Ca. 110.) 
 
 By a statutory agreement between the A. Eailway Company 
 and the B. Eailway Company, whose railways formed a continuous 
 line of railway, it was provided that the B. Company should work 
 the line of the A. Company in perpetuity, and provide the neces- 
 sary rolling stock ; that the B. Company should appoint, pay and 
 have the exclusive control over the staff required' for working the 
 A. Company's line, and that the A. company should appoint, pay 
 and have exclusive control over the officials required to manage the 
 directorial and financial departments of their undertaking, and the 
 men required for the maintenance of the permanent way of their 
 line ; that the B. Company should receive for working the traffic 
 50 per cent, of the gross receipts, and that out of the remaining 
 50 per cent, the A. Company should pay, (1) The cost of maintain- 
 ing the permanent way, public and parochial burdens, and govern- 
 ment duties ; (2) The " general charges " for the directorial and 
 financial business of the company; and (3) Out of the balance 
 should pay one-quarter to the B. Company in respect of a contri- 
 bution of 30,000/. to the capital holders in the A. company ; and 
 lastly, that the traffic should be managed and the rates and fares 
 fixed, by a joint committee, the B. Company being, however, the 
 sole judges of the proper times for starting the trains : — 
 
 Held, by the Court of Session (affirming the judgment of the 
 Eailway Commissioners), that the A. Company was, within the
 
 THROUGn RATES. 321 
 
 meaning of tlio Eegulation of Eailways Act, 1873, a forwarding Ch. xiv. 
 
 company, and entitled, under sect. 11, to require that through rates ^ '- 
 
 should be fixed for traffic passing to and from stations on its line 
 from and to stations on the B. Company's own line. {Greenock 8f 
 JFei>i>/ss Bay Rij. Co. v. Caledonian Ry. Co., supra.) 
 
 The C. W. Eailway Company applied to the Commissioners for 
 an order, under sect. 11 of the Eegdation of Eailways Act, 1873, 
 allowing through rates in respect of the traffic in certain goods 
 between Chester and Haverfordwest, the route proposed being from 
 Chester over lines owned and worked by the L. & N. W. Eailway 
 Company, and over the applicants' own line, which was worked by 
 the same company under an agreement with the applicants, and 
 thence to Haverfordwest over G. W. Eailway Company's line, 
 which was worked and owned exclusively by that company, and 
 vice versa from Haverfordwest to Chester. The thi-ough route pro- 
 posed consequently commenced and terminated off the line of the 
 company proposing the through rate. 
 
 The applicants had no rolling stock, and did not work their rail- 
 way, but maintained and managed their line, and collected, for- 
 warded, and delivered their own traffic, the whole of the staff at 
 their stations being employed and paid by them, and subject to 
 their orders : — Held, by the Queen's Bench Division (affirming the 
 judgment of the Eailway Commissioners, and in accordance vnih. 
 the judgment of the Court of Session in The GreenocJ: and Wemyss 
 Bay By. Co. v. TJie Caledonian By. Co.), that the traffic required 
 to be forwarded was "through traffic to or from" the applicants' 
 railway, and that the applicants were a railway company entitled 
 to apply for a through rate in respect of such traffic, within the 
 meaning of sect. 11. {Central Wales, S^x. By. Co. v. G. W. By. 
 Co., supra.) 
 
 Where a railway company took exception to the Commissioners' 
 jurisdiction to entertain an application for through rates, on the 
 ground that there was an agreement in existence which provided 
 for through rates being fixed between the two companies, and for 
 a reference to arbitration in the event of there being a difference 
 
 M. y
 
 322 THE LA W OF OARPdERS. 
 
 Ch. XIV. as to the amounts ut which those throuo'h rates should be fixed, 
 
 Art. 254. , . ° 
 
 the Commissioners held that the company who made the applica- 
 tion was competent to do so. 
 
 Mr. Commissioner Miller said : — '' I do not doubt for a moment 
 the jurisdiction of this tribunal to hear and determine any question 
 of through rates brought before it by any railway company having 
 an interest in a route over which it is proposed that the goods 
 should be carried. The Act giving the jurisdiction is perfectly 
 general. It is a jurisdiction given in order to prevent railway 
 companies, by agreement or w^ant of agreement amongst themselves, 
 imposing difficulties in the way of traffic being carried from point 
 to point, and under any circumstances where you find a continuous 
 line of railway belonging to two or more companies, and any one 
 of the companies interested in the route has given the proper 
 statutory notices so as to bring the case within the terms of the 
 11th section of the Act of 1873, and a difference has arisen 
 between the companies as to whether the proposed rates should 
 come into operation or not, it appears to me that the jurisdiction 
 of this tribunal to hear and determine that question at once arises, 
 and cannot be ousted in any way by any equities that may exist 
 between the different companies themselves." {Met. D. Ey. Co. v. 
 Md. Ry. Co., 5 Ey. & Ca. Tr. Ca. 126.) 
 
 See, as to the effect of an agreement as to the granting of through 
 rates, post, Art. 258, p. 328. 
 
 The Commissioners refused to fix and apportion through rates, 
 on the ground that the proposed rates were not in accordance with 
 the terms of a statutory agreement made between the two rail- 
 way companies over whose railways the rates were sought to be 
 charged. {North MonJxhuuIs Ey. Co. v. North British Ey. Co., 
 3 Ry. & Ca. Tr. Ca. 282.) 
 
 The W. B. Railway Company had entered into an agreement 
 with the C. Company, whereby the latter company worked their 
 line, and it was agreed that the rates and fares to be charged on 
 the W. B. Railway should be fixed by a joint committee of the 
 two companies.
 
 f 
 
 THROUGH RA TES. 323 
 
 It was held that this aorreement did not relate to throusrh rates, Ch. xiv. 
 
 Art. 254 
 and that the W. B. Company were the proper parties to apply for - 
 
 such rates under that section. {Greenock and Wemj/ss Bmj By. Co. 
 
 V. Caledonian Ry. Co. (No. 3), 3 Ej. & Ca. Tr. Ca. 14.1) 
 
 In a statute granting a gross toll to the Birmingham Canal 
 Company, it was recited that it would be of public advantage for 
 the canal from Warwick to Birmingham to be opened into the 
 Digbeth branch ; and that, in order to induce the Birmingham 
 Company to agree to such junction taking place, it had b:eu 
 j)roposed and agreed that the Birmingham Company should have 
 the rates or dues thereinafter mentioned. Both these statutes were 
 repealed by others, substituting fresh tolls. The Court held, that 
 the particular cii'cumstances which led to the original establishment 
 of the tolls did not prevent them coming under the jurisdiction of 
 the commissioners in fixing through tolls under the Regulation of 
 Railways Act, 1873, s. 11. 
 
 A canal company had a dividend guaranteed to them by a 
 railway company under a statute, which provided that they should 
 not reduce or vary their tolls without the consent of the railway 
 company. It was held by the Exchequer Division that the consent 
 of the railway company to the granting of a through toll reducing 
 the tolls of the canal company was required before the commis- 
 sioners could make an order under sect. 11. {Warwick and Bir- 
 mingham Canal Co. v. BirniingJiam Canal Co. and others^ 3 Ry. & 
 Ca. Tr. Ca. 113, 324.) 
 
 265. To induce the Railway Commissioners to 
 impose a through rate there must be evidence that 
 it is required in the public interest. {Belfast Central 
 111/. Co. V. Great Northern Ry. Co. [Ireland, No. 3), 
 Great Northern Ry. Co. [Ireland) v. Belfast Central Ry. 
 Co., 4 Ry. & Ca. Tr. Ca. 159.) 
 
 The fact that the quantity of traffic to which the pro- 
 
 y2
 
 324 THE LAW OF CARRIERS. 
 
 ch. XIV. posed rates could apply is small, and that no time will 
 
 A.rt. Atoo. 
 
 be saved if the traffic is carried by the proposed route, 
 
 and the number of exchanges on the portion of the 
 jDroposed through route worked by other companies 
 is great, — are not reasons for refusing through rates, 
 any more than they would be for withholding facilities 
 under sect. 2 of the Railway and Canal Traffic Act, 
 1854. {Central Wales, ^-c. By. Co. \. L. S; N. W. Ri/. 
 Co. and G. ^Y. By. Co., 4 Ry. & Ca. Tr. Ca. 211.) 
 
 This was an application by the C. W. Railway Company for 
 through rates for traffic carried between Haverfordwest and Chester, 
 Liverpool, Manchester, Leeds, Burton, Birmingham, and Wolver- 
 hampton, required to be forwarded via the C. W. route ; it appeared 
 that that route was shorter and more direct than the Gr. W. route, 
 tid Hereford (on which through rates were in force) : the saving 
 of distance by the C. W. route from Chester, Liverpool, Manchester, 
 and Leeds being 57 miles ; from Burton 32 miles ; from Wolver- 
 hampton 22, and Birmingham 7. The Gr. W. Company contended 
 that the proposed rates were not in the public interest, for the 
 reasons stated in this article. 
 
 Upon an application for a through route and rate, it was proved 
 that the proposed route was h% mUes shorter than the route over 
 which the traffic was being carried, and was worked not less 
 conveniently as regards the railway companies by whom the traffic 
 was handled before it got to its destination ; and that the proposed 
 rate was of less amount, and presumably, therefore, more beneficial 
 to the public, while, at the same time, being more in proportion to 
 distance than the rate by the other route, it yielded a larger sum 
 per mile to the companies carrying, and was, therefore, not obviously 
 unreasonable as against them. The Commissioners inferred from 
 those facts that the route was a reasonable one, and that the public 
 were interested in the rate being granted; and held, that where 
 a good prima facie case of public interest existed on general
 
 TlIllOUGII RATES. 325 
 
 considerations, it was not necessary to bring evidence to prove a Ch. xiv. 
 
 Art. 255. 
 
 special case as well. {Central Wales, 8jC. Ry. Co. v. G. W. Ry. 
 
 Co. Sf others, ante, p. 320.) 
 
 A coal rate will be a sufficiently paying rate to be allowed if the 
 earnings per truck are not less than the earnings in other trucks of 
 a goods train, and if the company's profit on coal is not less than 
 their profit on their goods traffic generally. 
 
 The delay in unloading waggons at a particular station is not a 
 cost which ought to make the through rate to that station higher. 
 
 In applications for through rates, there is no prima facie case in 
 favour of specially low charges, and the onus is upon the company 
 applying to show reasons why the forwarding company should 
 carry for less than it would be likely to receive out of agreed 
 through rates. {Belfast Central Case, supra.) 
 
 On an application by the Belfast Central Railway Company to 
 fix through rates for coal sent from Belfast quay over their railway 
 to stations beyond Armagh on the Grreat Northern (Ireland) Com- 
 pany's railway, the Commissioners held, that having fixed the 
 through rate to Armagh at 3s. 6(1., every member of the public 
 had a vested right to have his coal carried to that point for that 
 sum, and therefore in the case of places lying beyond Armagh, the 
 question whether any proposed through rates were or were not 
 reasonable in the interests of the public depended upon whether 
 the difference between the proposed rate of 3s. iid. afforded a 
 reasonable remuneration for the haulage for the extra distance, 
 it being proved that the extra distance involved no expense to the 
 Great Nqrthern Company other than haulage. {Belfast Central 
 Ry. Co. V. Great Northern Ry. Co. {Ireland, No. 2), 3 Ry. & Ca. 
 Tr. Ca. 419.) 
 
 The Commissioners will not grant through rates which will 
 have the effect of raising a long-established rate and unsettling 
 interests which have been founded on its continuing, unless the 
 railway company asking for such through rates can show that an 
 alteration is required to give them a fair return upon the traffic 
 carried. {Gt. N. of Ireland Ry. Co. v. Belfast Central Ry. Co., 
 3 Ry. & Ca. Tr. Ca. 411.)
 
 326 THE LAW OF CARBIERS. 
 
 Art?56' 256. The Commissioners must consider whether, 
 
 having regard to the circumstances, the route proposed 
 is a reasonable one. (51 & 52 Vict. c. 25, s. 25.) 
 
 That through rates exist by an alternative route, and that to 
 maintain competition by the proposed route a similar facility is 
 necessary, is a reason for granting through rates. That the 
 distance between the points of arrival and departure of two 
 through routes is the same, is too vague a ground for deciding 
 that the rates charged in respect of these routes should be the 
 same. {Central TTales 8f Carmarthen Junction Ry. Co. v. London 
 ^ North Western Ry. Co. and Great Western Ry. Co., 4 Ey. & Ca. 
 Tr. Ca. 211.) 
 
 A route, for which through rates are proposed, that would be a 
 reasonable and serviceable route if worked throughout by one 
 railway company, does not lose its serviceableness because two or 
 more companies are concerned in working it ; for the Eailway and 
 Canal Traffic Act, 1854, s. 2, is intended to secure that, in the 
 case of a continuous line formed out of the railways of different 
 companies, the companies should co-operate for the transit of 
 through traffic, and send it forward to its destination as though 
 it were their own proper traffic. {Sidndon, Marlborough 8^ Andover 
 Ry. Co. V. Great Western Ry. Co. and London 8^ South Western Ry. 
 Co., 4 Ry. & Ca. Tr. Ca. 349.) 
 
 In this case the S. & M. Railway formed an alternative route 
 between certain stations on the G-. W. Railway and other stations 
 on the S. W. Railway. 
 
 Upon an application by the S. & M. Railway Company for 
 through rates between such stations rid their railway, the rates to 
 be the same as the existing rates between such stations by the 
 alternative route, which were agreed through rates, it was proved 
 that the route proposed by the S. & M. Eailway would effect a 
 great saving in time and distance, and that the transfers at 
 junctions were the same by either route. 
 
 The Commissioners alloAved the through rates and route as.
 
 THRO UGH RA TES. 327 
 
 proposed, on the ground that the interests of the public were, Ch. xiv. 
 
 • n II I* Art. 4^od. 
 
 under the circumstances, in favour of the existence of an alternative • 
 
 railway route at equal rates. 
 
 The Commissioners held that rates that excluded traffic from the 
 shorter of these two through routes, and confined it to the longer, 
 could not but be at the expense of public policy ; and though the 
 quantity of traffic might be insignificant, and equal rates might 
 not have much effect in developing through traffic by the route in 
 question, it was a principle of importance to the public that a 
 route between places offering the best opportunities for railway 
 carriage, as far as distance was concerned, should not be placed at 
 a disadvantage merely because portions of the route belonged to 
 companies which had an alternative route and made lower charges 
 in favour of the latter. It would be an undue preference if a 
 company, as to traffic of the same description going between the 
 same places, worked it at through rates if the traffic passed off their 
 line at one point, and refused that facihty if it passed off their line 
 at another point. 
 
 The through rates and route proposed by the C. Company com- 
 bined the more direct route of one company with the more con- 
 venient station of the other, and fixed as the rates for traffic sent 
 that way the rates in force for through carriage by the alternative 
 but less convenient route. {Cakdo)ii(iii Rij. Co. v. North British 
 Ry. Co. (No. 4), 3 Ey. & Ca. Tr. Ca. 403.) 
 
 A sending company having two alternative routes for thi'ough 
 traffic, one eight miles longer than the other, proposed, for the 
 purpose of a through rate, to carry by the longer one, at a double 
 cost and labour in working and maintaining the junction, with the 
 object of making their own mileage more, and the mileage of the 
 forwarding company less. It was held, that such longer route 
 was not a reasonable route, within the meaning of section 11, sub- 
 section 5, of the Regulation of Railways Act, 1873. {E. 4^ W. 
 June. Rij. Co. V. G. W. Ry. Co., 1 Ry. & Ca. Tr. Ca. 331.) 
 
 The Commissioners held that a route was a reasonable one, 
 within the meaning of section 11 of the Regulation of Railways
 
 328 THE LAW OF CARRIERS. 
 
 Ch. XIV. Act, 1873, wliicli was capable of maintaining a competition with 
 quicker or cheaper routes, and efficient enough to be likely to be 
 
 preferred for some portion of the traffic. {G. W. B>/. Co. v. Severn 
 
 8f Wye, 4t. Ry. Co., 5 Ey. & Ca. Tr. Ca. 170.) 
 
 257. As a general rule, in apjDortioning through 
 rates, it is reasonable that where a railway company 
 has a very short distance it should have more in 
 jDroportion than the company which has a long dis- 
 tance. {Severn ^^ Wije, ^t. Ry. Co. v. G. W. Ry. Co., 
 5 Ey. & Ca. Tr. Ca. 156.) 
 
 In dividing the total amount of a through rate between two 
 forwarding companies where the traffic is carried on one of the 
 railways a short distance, the charge which such a company may 
 make for short distances under their special Act is to be taken into 
 account in favour of such a company. {Tal-y-llyn Ry. Co. v. 
 Cambrian Rys. Co., 5 Ey. & Ca. Tr. Ca. 122.) 
 
 258. '' Where a railway company or canal com- 
 pany use, maintain, or work, or are party to an 
 arrangement for using, maintaining, or working steam 
 vessels for the purpose of carrying on a communi- 
 cation between any towns or ports, the provisions of 
 this section shall extend to such steam vessels, and to 
 the traffic carried thereby." (Railway & Canal 
 Traffic Act, 1888, s. 25, ante, p. 315.) 
 
 The routes to which the obligations as to through rates and the 
 power for applying for them have reference, consist generally of 
 two or more railways forming together a continuous line, but they 
 may also be a mixed route partly by land, partly by sea, provided 
 the communication for the sea portion is by steam vessels, and the 
 vessels are used, maintained, or worked by a railway company,
 
 TimOUGII RATES. 329 
 
 or under an arrangement to which a railway company is a Ch. xiv. 
 
 party. Questions were raised as to this proviso m the following 
 
 cases : — 
 
 An agreement between a steamboat company and a railway 
 company that the steam vessels belonging to the former shall ply 
 between two ports " for one year and thereafter until written 
 notice to terminate the agreement sis months from the date of 
 such notice, . . . daily or at least upon alternate days of each week, 
 the hours of departm^e of the boats to be determined by the steam- 
 boat company, regard being had, however, to the convenience of 
 the railway company and to the times of the arrival and departure 
 of their trains ; " and containing also a clause that any dispute or 
 difference as to the provisions of the agreement should be referred 
 to the decision of an arbitrator to be appointed by the Board of 
 Trade, whose decision was to be binding, is an arrangement for 
 using, maintaining, or working steam vessels within the meaning 
 of sect. 11 of the Eegulation of Eailways Act, 1873. {The Belfast 
 Central Ry. Co. v. TJie Gt. N. Ry. Co. {Ireland, No. 4), 4 Ey. & 
 Ca. Tr. Ca. 379.) 
 
 A railway company applying for through rates had agreed with 
 C. for the carriage of passengers by steamers in connection with 
 their lines. It was held that such steamers and the traffic carried 
 thereby were within the provisions of the 1 1th section of Eegulation 
 of Eailways Act, 1873. {Greenock and Wemyss Bay Ry. Co. v. 
 Caledonian Ry. Co. (No. 3), 3 Ey. & Ca. Tr. Ca. 145.) 
 
 The existence of through bookings between A. and B. for the 
 carrying of traffic by a certain steam vessel for the sea part of the 
 through journey between these places is not such an arrangement 
 for the "use" of these vessels as to make sect. 11 apply to them, 
 and to enable the owners to require a through rate between A. and 
 C. under that section. 
 
 Semhle, a railway company cannot make a distinction in its rates 
 for the same railway journey, according as the traffic is booked 
 no further than it goes by railway, or is booked to a destination 
 beyond the limits within which the Traffic Act is applicable, e.g.
 
 330 THE LAW OF CARRIERS. 
 
 Ch. XIV. to places across the sea where section 2 of the Act has not been 
 
 Art. 258. 
 
 extended to the carriage by water. {The Ayr Harbour Trustees 
 
 and P. Barr 8^ Co. {Ayr Steam Shipjmuj Co.) v. The Glasgow ami 
 
 S. W. By. Co., The Caledonian Ry. Co., The North British By. Co., 
 
 and The North Eastern By. Co. (No. 1), 4 Ey. & Ca. Tr. Ca. 81.) 
 
 Where the arrangement as to the steam vessels was made by the 
 company to whom the railway with which the steam vessels directly 
 communicated belonged, it was held that such clause extended the 
 whole provisions of sect. 11, and took effect whenever there was an 
 arrangement with the proprietors of steam vessels for the convey- 
 ance of passengers or goods to and from any port or town with 
 which there was railway communication, provided the railway 
 company party to the arrangement owned or worked, or was other- 
 wise immediately interested in, some portion or other of the line 
 of railway communication. {The Caledonian By. Co., Alexander 
 Caniphell and The Frith of Clyde Steam Paehet Co., Limited v. The 
 Greenock and Wemyss Bay By. Co. and The Joint Committee for 
 managing the Traffic on the Greenock and Wemyss Bay Bailway and 
 Pier, 4 Ey. & Ca. Tr. Ca. 135.) 
 
 An application by the D. Steam Packet Company for through 
 rates for passengers between Kingstown and London, via the 
 Company's steamers and N. W. Company's railway, was refused 
 on the ground that the D. Steam Packet Company had agreed 
 (under statutory powers) that the charges for the conveyance of 
 passengers' traffic between London and Kingstown were to be 
 fixed from time to time, as regards the through rates, by the 
 railway company. {City of Dublin Steam Packet Co. v. L. 8f N. 
 W. By. Co., 4 Ey. & Ca. Tr. Ca. 10.) 
 
 To constitute an arrangement for " using " steam vessels within 
 the meaning of sect. 11 of the Eegulation of Eailways Act, 
 1873, the agreement between the railway company and the 
 owner of the steamboat must be definite, and contain an obligation 
 on the part of the steamboat proprietor to ply between the specified 
 ports. Where there was no such stipulation, and where stipula- 
 tions as to the time of arrival and departure of the boat, and to
 
 THROUO TI RA TES. 33 1 
 
 ensure tlicat tlie raihvay and steamer should form too-etlier part of Ch. xiv. 
 
 . . . . 1 Art. 258. 
 a continuous line of communication, were not contained m the 
 
 agreement, the arrangement was held to be not such an one as was 
 
 contemplated by the section. 
 
 Where there was an agreement for the season that a certain 
 steamer should connect with one up and one down train of the 
 railway company daily, the application being made within five 
 weeks of the end of the season, the through rates were refused on 
 the ground that they would be too transient to be proper to be 
 allowed. 
 
 When the validity of an agreement is disputed upon grounds 
 not obviously frivolous, the Commissioners will abstain from exer- 
 cising their power of granting through rates, although the agree- 
 ment, if valid, is such an one as would have entitled a railway 
 company to require through rates under the section. [Caledonian 
 Ry. Co. V. Greenock Sf Weniyss Bay By. Co. (No. 2), 4 Ey. & Ca. 
 Tr. Ca. 70.)
 
 332 THE LA W OF CARRIERS. 
 
 CHAPTER XV. 
 
 THE OBLIGATIONS OF A KAILWAY COMPANY TO AVOID GIVING 
 AN UNDUE PREFERENCE. 
 
 I. — Statutory Obligations. Articles. 
 
 1. ^'■Equality Clause''^ of the Railway Clauses Consolidation Act, 
 
 1845 (8 Vict. c. 20, s. 90) 259 
 
 2. Sect. 2 of the Railway and Canal Traffic Act, 1854 (17 8f 18 
 
 Vict. c. 31), mid sect. 27 of the Railway and Canal Traffic 
 Act, 1888 (51 &f 52 Vict. c. 25) 260 
 
 3. Jurisdiction of Commissioners under Provisions in Special Acts 
 
 relating to Undue Preference (51 ^- 52 Vict. c. 25, s. 9) 261 
 
 4. Undue Preference shoion to Goods carried hy Sea in Vessels 
 
 helongijig to or icorked hy a Railway Company (51 Sf 52 Vict. 
 
 c. 25, .9. 28) 262 
 
 5. Equality of Treatment of Passengers ichere a Raihvay Company 
 
 ivorks or uses Steam Vessels (31 8f 32 Vict. c. 119, s. 16) . . 263 
 
 6. A Railway Company may charge Group Rates provided they do 
 
 not create an Undue Preference (51 ^- 52 Vict. c. 25, s. 29), . 264 
 
 7. Public Authority, Dock Compa7iies awl Harbour Boards may 
 
 co7nplain of Undue Preference (51 ^' 52 Vict. c. 25, ss. 7, 30) 265 
 
 8. Commissioners may award Damages under certain Conditions 
 
 (51 ^- 52 Vict. c. 25, «. 13) 266 
 
 II. — Principles WHicn decide -wHETnER a Preference is Undue 
 
 OR NOT. 
 
 9. Puhlic Convotience and Pair Interests of the Railway Company 
 
 to be considered 267 
 
 10. Preference complained of must be to a Person similarly circum- 
 stanced 268
 
 UNDUE PREFERENCE. 333 
 
 Articles. 
 
 11. Inequality of Rates justified by Cost of Conveyance 2G9 
 
 12. Guarantee of Larger Supplies at Regular Intervals 270 
 
 13. Conveyance for Longer Distance at Less Cost 271 
 
 14. Arrangement xvith Customer for Employment of other Lines for 
 
 Different Traffic , 272 
 
 15. Inequality of Rates not justified by Considerations collateral to 
 
 the Pecuniary Interests of the Company 273 
 
 16. Inequality of Rates not justified by Competition alone 274 
 
 17. Undue Preference of a Railway Company by themselves 275 
 
 18. Common Carriers must be treated as other Custotners 275 
 
 19. Alloivance for Cartage tchere Service not performed by the Com- 
 
 pany 276 
 
 20. Undue Preference of one Town or District over another 277 
 
 21. Admission of Public Vehicles into a Station 278 
 
 22. Refusing Credit or Ledger Account to a Trader 279 
 
 I. Statutory Obligations. 
 
 259. A railway comimny may, subject to the pro- chap. xv. 
 visions and limitations in the special Act contained, ~- — '- 
 from time to time alter or vary the tolls by the special 
 Act authorized 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, 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 circum- 
 stances ; and no reduction or advance in any such tolls 
 shall be made either directly or indii^ectly in favour of 
 or against any particular company or person travelling 
 upon or using the railway. (8 Vict. c. 20, s. 90.)
 
 334 THE LAW OF CARRIERS. 
 
 Chap. XV. The word " tolls " in this section clearly includes a charge made 
 
 Art 259 
 
 ' by a company as carriers. (EvershedY. L. 8f JV. W. R>j. Co., 3 App. 
 
 Cas. 1029 ; 48 L. J. Q. B. (H. L.) 22 ; and s. 3 of 8 Yict. c. 20.) 
 
 The words " goods of the same description " and " under the 
 same circumstances," mean goods of the same description for the 
 purposes of carriage, and they are used with reference to the con- 
 veyance of goods and not to the persons who send them. (6r. W. 
 JRij. Co. V. Sutton, L. R. 4 H. L. 226 ; 38 L. J. Ex. (H. L.) 177.) 
 By " the same circumstances " is meant the same circumstances as 
 regards the railway company, i.e., the same amount of labour and 
 cost to them. 
 
 Willes, J., in deKvering judgment in that case said : " The ques- 
 tion, what is the meaning of the equality clause when it speaks of 
 things of ' like description ' conveyed ' under the like circum- 
 stances,' ought, I think, to be answered by saying that things are 
 of a 'like description' when, — although their component parts 
 are not 'identical,' which would be expressed by 'the same de- 
 scription,' not ' like description,' — they are similar in those 
 qualities which affect the risk and expense of carriage, and that 
 they are conveyed under like circumstances where the labour, risk, 
 and expense are, in the opinion of the jury, the same — otherwise 
 not. For instance, bags of red wheat and bags of white wheat are 
 in the nature of things of like description. Bags of cotton and 
 bags of jute, of like weight and value, are of the like description, 
 if there is no other dissevering circumstance proved ; but if it were 
 superadded that one was more risky and troublesome to carry than 
 the other, the jury would hold that the goods were of different 
 descriptions ; and bags of silk may be suggested as an instance in 
 which a jury would be sure so to hold. Cattle, which would be 
 more troublesome and exposed to risk than inanimate things, would 
 be an instance of dissimilarity. So of horses, as less manageable 
 than other cattle, and requiring special precautions. In each case 
 the question ought, I think, to be, in fact, whether the sort of thing 
 was like or different for the purposes of carriage, that being the 
 subject dealt with. The railway company might also make a
 
 UNDUE PREFERENCE. 335 
 
 distinction between the prices charged to all the world for articles Chap. xv. 
 
 • • • • • Art 259 
 
 not distinguished in this respect because of there being a great ' 
 traffic in one and small in another: as, for instance, in the 
 carriage of coals and the carriage of coke from a district in which 
 the one was abundant and the other was not so, to such an extent 
 that the former employed a greater number of waggons with a less 
 expensive staff, the price of carriage being proved to depend more 
 upon the wages of the staff than upon the wear and tear of the 
 waggons. This would affect the expense, and make the articles, 
 though in one respect like as minerals, in another unlike as to 
 remuneration. I think 'like description' is exhausted upon the 
 goods, and 'like circumstances' upon the carriage, and that 
 neither can be extended to the personal qualities of the individual 
 who sends the goods." 
 
 Lord Blackburn, in Evershed v. L. (^ N. W. Rij. Co. (3 App. Cas. 
 1029), said: "What the legislature has clearly said is, that the 
 tolls must be charged equally to all persons under the same 
 circumstances. I think that means under similar circumstances as 
 to the goods, not as to the person. I do not think the person 
 comes into the question at all." 
 
 Equality clauses similar to this section were inserted in most of 
 the special Acts before this general enactment. 
 
 The preamble of this section, viz., " Whereas 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 particular parties, or for the purpose of 
 collusively and unfairly creating a monopoly, either in the hands of 
 the company or of particular parties," shows that the legislature 
 intended to impose on railway companies, acting as carriers, an 
 obligation beyond what is imposed at common law, so that an 
 unequal charge to different persons under similar circumstances is 
 by virtue of the statute extortionate. Per Blackbm-n, J., in G. W. 
 Ry. Co. V. Sutton, supra, where the cases upon this section and 
 upon the corresponding clause in the special Acts are reviewed.
 
 336 THE LAW OF CARRIERS. 
 
 Chap. XV. These cases arose out of disputes "between railway companies and 
 
 Art 259 
 
 '. 1 carriers in respect to "packed parcels," for which railway com- 
 panies had charged carriers a higher rate than the puhlic, " which 
 it has been held over and over again they cannot do." {Per 
 Willes, J., in Piddington v. S. E. R>j. Co., 27 L. J". C. P. 295 ; 5 
 C. B. (N. S.) 111.) 
 
 This section does not apply to the case of a company charging 
 lower passenger fares for long than for short distances for the 
 purpose of excluding competition. {Att.-Gen. v. Birmingham and 
 Derby Jnncfion Eij. Co., 2 Eailw. Ca. 124.) 
 
 Sect. 90 does not prevent a railway company from making a 
 special charge for goods carried over their railway in pursuance of 
 a traffic agreement with another company under sect. 87 of the Act. 
 {Jlidl, Barnsley, ^c. Ry. and Dock Co. v. Yorkshire and Derbyshire 
 Coal and h^on Co., 18 Q. B. D. 761.) 
 
 If any railway company infringe the equality clause, and give 
 an undue preference to particular customers, a customer paying the 
 excess may recover it in an action against the company. {Q. W. By. 
 Co. V. Sutton, L. E. 4 H. L. Ca. 226 ; 38 L. J. Ex. 177 ; Erershed 
 V. L. 8f N. W. By. Co., 3 App. Cas. 1029 ; 48 L. J. Q. B. 22.) 
 
 The provision in sect. 90 requiring equality of rates for carriage 
 of goods " passing only over the same portion of the line of 
 railway under the same circumstances" applies only to goods 
 passing between the same points of departure and arrival and 
 passing over no other part of the line. And mere inequality in 
 the rate of charge when unequal distances are traversed does not 
 constitute a preference inconsistent with the concluding words of 
 that section. 
 
 Therefore, where a railway company carried coals from a group 
 of collieries situate at different points along their line, and charged 
 all the collieries with one uniform set of rates in respect of such 
 carriage, and the owners of the colliery lying nearest to the point of 
 arrival brought an action for overcharges, it was held that the 
 railway company had not infringed sect. 90. It was also held 
 that in this case an action did not lie for breach of sect. 2 of 
 
 II
 
 UNDUE PREFERENCE. 337 
 
 the Eailway and Canal Traffic Act, 1854, undue or unreasonable c^iap. XV. 
 preference or prejudice not having been made out. 
 
 It is doubtful whether under any circumstances an action lies for 
 breach of that section. 
 
 Where goods are carried for different customers " over the same 
 portion of the line of railway," and the only difference in the 
 circumstances is that the goods carried for one customer are to be 
 shipped to certain ports in order to develop a new trade, or open up 
 new markets, and so to increase the tonnage carried, the railway 
 company are not justified in making allowances to that customer, 
 or in carrying for him at a lower rate than for the others. 
 
 A railway company which carried coals for the appellants, and 
 also for B. and J., "over the same portion of their line of 
 railway," and made allowances and a rebate to B. and J., and proved 
 that they carried for B. and J. at a less cost to the company, but 
 did not show that the allowances and rebate were adequately 
 represented by the saving to the company. It was held that the 
 difference in cost constituted a real difference in the circumstances ; 
 that there being nothing to show any want of good faith, the 
 company were not bound to prove that the allowances and rebate 
 were adequately represented by the saving ; that there was no breach 
 of sect. 90, and that the appellants could not maintain an action 
 for overcharges under that section. {Denahij Main Colliery Co. v. 
 31. S. Sf L. Ri/. Co., 11 App. Cas. 97 ; 55 L. J. Q. B. 181.) 
 
 260. No railway company shall make or give any 
 undue or unreasonable preference or advantage to or 
 in favour of any particular person or company, or any 
 particular description of traffic in any respect whatso- 
 ever, nor shall any such company subject any particu- 
 lar person or company to any undue or unreasonable 
 prejudice or disadvantage in any resj^ect whatsoever. 
 (17 & 18 Vict. c. 31, s. 2.) 
 
 Whenever it is shown that any railway company 
 
 M. Z
 
 338 THE LAW OF CARRIERS. 
 
 ^?^P'i^y- charge one trader or class of traders, or the traders in 
 
 Art. 260. ^ , , ' 
 
 any district, lower tolls, rates, or charges for the same 
 
 or similar merchandise, or lower tolls, rates, or charges 
 for the same or similar services, than they charge to 
 other traders, or classes of traders, or to the traders in 
 another district, or make any difference in treatment 
 in respect of any such trader or traders, the burden of 
 proving that such lower charge or difference in treat- 
 ment does not amount to an undue preference shall 
 lie on the railway com^^any. In deciding whether a 
 lower charge or difference in treatment does or does 
 not amount to an undue preference, the Court having 
 jurisdiction in the matter, or the Commissioners, as 
 the case may be, may, so far as they think reasonable, 
 in addition to any other considerations affecting the 
 case, take into consideration whether such lower 
 charge or difference in treatment is necessary for the 
 purpose of securing in the interests of the j)ublic the 
 traffic in respect of which it is made, and whether the 
 inequality cannot be removed without unduly reducing 
 the rates charged to the complainant : provided that 
 no railway comj)any shall make, nor shall the Court, 
 or the Commissioners, sanction any difference in the 
 tolls, rates, or charges made for, or any difference in 
 the treatment of, home and foreign merchandise, in 
 respect of the same or similar services. The Court or 
 the Commissioners shall have power to direct that no 
 higher charge shall be made to any person for services 
 in respect of merchandise carried over a less distance 
 than is made to any other j)erson for similar services 
 in respect of the like description and quantity of mer-
 
 UNDUE PnEFEEENCE, 339 
 
 chandise carried over a greater distance on the same ^^^p-^Y- 
 
 ^ Art. 260. 
 
 line of railway. (51 & 52 Vict. c. 25, s. 27.) 
 
 The term " undue preference " includes an undue preference, or 
 an undue or unreasonable prejudice or disadvantage, in any 
 respect, in favour of or against any person or particular class of 
 persons, or any particular description of traffic ; the term " mer- 
 chandise " includes goods, cattle, live stock, and animals of all 
 descriptions ; the term " trader " includes any person sending, 
 receiving, or desiring to send merchandise by railway or canal. 
 (51 & 52 Yict. c. 25, s. 55.) 
 
 The word " traffic " includes not only passengers and their 
 luggage, and goods, animals, and other things conveyed by any 
 railway company, or railway and canal company, but also can'iages, 
 waggons, trucks, boats, and vehicles of every description adapted for 
 running or passing on the railway or canal of any such company. 
 
 The word " railway " includes every station of or belonging to 
 such railway, used for the purposes of public traffic. (17 & 18 
 Yict. 0. ;31, s. 1.) 
 
 The 2nd section of the Railway and Canal Traffic Act, 1854, is 
 an extension of the 90th section (" equality clause ") of the Rail- 
 ways Clauses Act, 1845 {ante^ Art. 259), and adds the remedy by 
 injunction to desist from an undue preference to the remedy by 
 action to recover the amount of unequal charges. 
 
 The last provision in this Article, that no higher charge shall be 
 made for short haulage than for long haulage, is taken from the 
 Inter-State Commerce Act, 1887. 
 
 In the United States, untd the passing of the Inter-State Com- 
 merce Act, 1887, cases involving questions of preference were 
 decided for the most part upon common law principles. 
 
 The provisions of that Act relating to undue preference are the 
 following : — 
 
 " That if any common carrier subject to the provisions of this 
 Act shall, directly or indirectly, by any special rate, rebate, draw- 
 back, or other device, charge, demand, collect, or receive from any 
 
 z2
 
 340 THE LAW OF CARRIERS. 
 
 Chap. XV. person or persons a greater or less compensation for any service 
 
 rendered, or to be rendered, in tlie transportation of passengers or 
 
 property, subject to the provisions of tliis Act, than it charges, 
 demands, collects, or receives from any other person or persons for 
 doing for him or them a like and contemporaneous service in the 
 transportation of a like kind of traffic under substantially similar 
 circumstances and conditions, such common carrier shall be deemed 
 guilty of unjust discrimination, which is hereby prohibited and 
 declared to be unlawful." (Sect. 2.) 
 
 " That it shall be unlawful for any common carrier subject to 
 the provisions of this Act to make or give any undue or unreason- 
 able preference or advantage to any particular person, company, 
 firm, corporation, or locality, or any particular description of traffic, 
 in any respect whatsoever, or to subject any particular person, com- 
 pany, firm, corporation, or locality, or any particular description of 
 traffic, to any undue or unreasonable prejudice or disadvantage in 
 any respect whatsoever. 
 
 "Every common carrier subject to the provisions of this Act 
 shall, according to their respective powers, afford all reasonable, 
 proper, and equal facilities for the interchange of traffic between 
 their respective lines, and for the receiving, forwarding, and 
 delivering of passengers and property to and from their several 
 lines and those connecting therewith, and shall not discriminate 
 in their rates and charges between such connecting lines ; but this 
 shall not be construed as requiring any such common carrier to 
 give the use of its tracks or terminal facilities to another carrier 
 engaged in like business." (Sect. 3.) 
 
 " That it shall be unlawful for any common carrier subject to 
 the provisions of this Act to charge or receive any greater compen- 
 sation in the aggregate for the transportation of passengers or of 
 like kind of property, under substantially similar circumstances 
 and conditions, for a shorter than for a longer distance over the 
 same line, in the same direction, the shorter being included within 
 the longer distance ; but this shall not be construed as authorizing 
 any common carrier within the terms of this Act to charge and 
 receive as great compensation for a shorter as for a longer dis-
 
 UNDUE PREFERENCE. 341 
 
 tance: Provided, however, that upon application to the commis- ^^^^'g^J^' 
 
 slon aj)pointed under the provisions of this Act, such common 
 
 carrier may, in special cases, after investigation by the commission, 
 be authorized to charge less for longer than for shorter distances 
 for the transportation of passengers or property ; and the commis- 
 sion may from time to time prescribe the extent to which such 
 designated common carrier may be relieved from the operation of 
 this section of this Act." (Sect. 4.) 
 
 The commission has decided, in the case of The Vermont State 
 Grange v. Boston and Loicell Rail. Co. (1 Interstate Commerce 
 Commission Reports, p. 158), that where a carrier unites with one 
 or more others in making a rate for long-haul traffic, the rate 
 so made constitutes a measure for the rates on short-haul traffic 
 upon its own lines as much as it would if the long-haul transpor- 
 tation was on its line exclusively. 
 
 Previous to the passage of the Act it was customary on many of 
 the railwaj'S of America to give reduced rates to the class of persons 
 known as " commercial travellers," but this was made illegal by 
 the provisions in the Act against unjust discrimination (1 Interstate 
 Commerce Reports, p. 8). It was also common in some quarters 
 to give special rates to land lookers, explorers, or settlers, who 
 were supposed to be looking for or establishing new homes in a 
 section where their purchase, settlement, or improvement would 
 benefit the carrier giving them, but this also is held to be now for- 
 bidden (1 Interstate Commerce Reports, p. 208). The opinion of 
 the commission as declared in these cases is that, under the law, it 
 is no longer competent for the carrier to discriminate among 
 passengers enjoying the same accommodations, by means of any 
 special classification dependent upon occupation or other condition 
 or circumstance of a personal nature, except as the law itself, by 
 the 22nd section, has in terms authorized it. That section is as 
 follows : — " That nothing in this Act shall apply to the carriage, 
 storage, or handling of property free or at reduced rates for the 
 United States, State, or municipal governments, or for charitable 
 purposes, or to or from fairs and expositions for exhibition thereat, 
 or the issuance of mileage, excursion, or commutation passenger
 
 342 THE LAW OF CARRIERS. 
 
 ^}^^^'^^7' tickets ; notliino- in this Act sliall be construed to proliibit any 
 Art. 260. . . . .... 
 
 common carrier from giving reduced rates to ministers of religion ; 
 
 notliing in this Act shall be construed to prevent railroads from 
 giving free carriage to their own officers and employees, or to 
 prevent the principal officers of any railroad company or companies 
 from exchanging passes or tickets with other railroad companies 
 for their officers and employees." 
 
 The commission have lately decided that the provision of the 
 Inter-State Commerce Act, requiring all rates to be reasonable, was 
 intended for the protection of the public and not for the protection 
 of railway companies from unreasonable competition, and that there 
 was no intention of vesting in the commission any power of order- 
 ing an increase of rates, even if in its opinion they should be 
 higher. {Chicago, St. Paul, and Kansas Citij Rij. Co. v. Chicago, Biir- 
 lington, and Northern Eij. Co.) Incidentally, in discussing the 
 case, the commissioners say that they do not understand on what 
 ground the Chicago, Burlington, &c. Ry. Co., while insisting that 
 its rates fi-om Chicago to St. Paul are remunerative, can justify 
 charging the same rates for one-third or two-thirds the distance. 
 Upon its own showing these rates seem to be excessive. 
 
 261. Where any enactment in a special Act con- 
 tains provisions relating to trafEc, facilities, undue 
 preference, or otlier matters mentioned in section 2 of 
 the Railway and Canal Traffic Act, 1854, the Commis- 
 sioners have the like jurisdiction to hear and deter- 
 mine a complaint of a contravention of the enactment, 
 as the Commissioners have to hear and determine a 
 complaint of a contravention of section 2 of the Rail- 
 way and Canal Traffic Act, 1854, as amended by sub- 
 sequent Acts. (51 & 52 Vict. c. 25, s. 9 ; ^;o5^, Appen- 
 dix, and ante. Art. 233.) 
 
 262. The provisions of section 2 of the Railway 
 and Canal Traffic Act, 1854, and of section 14 of the
 
 UNDUE PREFERENCE. 343 
 
 Regulation of Eailways Act, 1873, and of any enact- c^^p. xv. 
 
 ^ 7 J J _ft^j.t_ 262. 
 
 ments amenchng and extending those enactments, shall 
 
 api^ly to traffic by sea in any vessels belonging to or 
 chartered or worked by any railway company, or in 
 which any railway company procm^es merchandise to 
 be carried, in tlie same manner and to the like extent 
 as they apply to the land traffic of a railway com- 
 pany. (51 & 52 Vict. c. 25, s. 28.) 
 See note to Article 260. 
 
 263. Where a railway company is authorized 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 communication between any towns or ports, and 
 to take tolls in respect of such steam vessels, then and 
 in every such case tolls shall be at all times charged 
 to all persons equally and after the same rate in respect 
 of passengers conveyed in a like vessel passing between 
 the same places under like circumstances ; and no re- 
 duction or advance in the tolls shall be made in favour 
 of or against any person using the railway in conse- 
 quence of his having travelled or being about to travel 
 on the whole or any part of the company's railway, or 
 not having travelled or not being about to travel on any 
 part thereof, or in favour of or against any person 
 using the railway in consequence of his having used 
 or been about to use, or his not having used or not 
 being about to use, the steam vessels ; and where an 
 aggregate sum is charged by the company for con- 
 veyance of a passenger by a steam vessel and on the 
 railway, the ticket shall have the amount of toll
 
 344 THE LA W OF CARRIERS. 
 
 °Arf"26Z' charged for conveyance by the steam vessel distin- 
 guished from the amount charged for conveyance on 
 the railway. (31 & 32 Vict. c. 119, s. 16.) 
 
 The intention of this section seems to he that a railway com- 
 pany that has several steamboats, and has power to take tolls in 
 respect of them, shall charge snch tolls equally and after the same 
 rate in respect of passengers conveyed in a like vessel passing 
 between the same places imcler like circumstances ; and no reduc- 
 tion in the tolls shall be made in favour of any person using the 
 steam vessels in consequence of his having travelled or being about 
 to travel on the whole or any part of the company's railway, or in 
 favour of any person using the railway in consequence of his 
 having used or being about to use the steam vessels ; or advance 
 against any person in consequence of his not having travelled or 
 not being about to travel on any part thereof ; or against any 
 person using the railway in consequence of his not having used or 
 not being about to use the steam vessels. 
 
 See also 26 & 27 Vict. c. 92, s. 30, which is identical with this 
 section except the words " authorized by a special Act hereafter 
 passed and incorporating this part of the Act." 
 
 As to what will constitute an agreement for the use, maintenance, 
 and working of steam vessels, see Greenock and Wemyss Bay JRy. 
 Co. V. Caledonian By. Co. (No. 3), 2 Ry. & Ca. Tr. Ca. 232. 
 
 As to what circumstances will justify a preference by a railway 
 company of steamers when in connection with its trains, see 
 Southsea 8^ Isle of Wight Steam Ferry Co. v. L. B. and South W. 
 By. Cos., 2 Ry. & Ca. Tr. Ca. 341. 
 
 As to the latter part of this section, which required the fare 
 charged to be stated on the ticket, see City of Dublin Steam Packet 
 Co. V. L. 8f N. W. By. Co., 4 Ry. & Ca. Tr. Ca. 10, post, Art. 330. 
 
 264. — (1.) Notwithstanding any provision in any 
 general or special Act, it shall be lawful for any rail- 
 way company, for the purpose of fixing the rates to be 
 cliai'ged for the carriage of merchandise to and from
 
 UNDUE PREFERENCE. 345 
 
 any ^^lace on their railway, to group togetlier any ^^^^^fl' 
 number of places in the same district, situated at 
 various distances from any point of destination or 
 departure of merchandise, and to charge an uniform 
 rate or uniform rates of carriage for merchandise to 
 and from all places comprised in the group from and 
 to any point of destination or departure. (2.) Pro- 
 vided that the distances shall not be unreasonable, and 
 that the group rates charged and the places grouped 
 together shall not be such as to create an undue 
 2)reference. (3.) Where any group rate exists or is 
 proposed, and in any case where there is a doubt 
 whether any rates charged or proposed to be charged 
 by a railway company may not be a contravention of 
 section 2 of the Railway and Canal Traffic Act, 1854, 
 and any Acts amending the same, the railway com- 
 pany may, upon giving notice in the prescribed 
 manner, apply to the Commissioners, and the Commis- 
 sioners may, after hearing the parties interested and 
 any of the authorities mentioned in section 7 of this 
 Act, determine whether such group rate or any rate 
 charged or proposed to be charged as aforesaid does or 
 does not create an undue preference. Any persons 
 aggrieved, and any of the authorities mentioned in 
 section 7 of this Act (post, Appendix), may, at any 
 time after the making of any order under this section, 
 apply to the Commissioners to vary or rescind the 
 order, and the Commissioners, after hearing all parties 
 who are interested, may make an order accordingly. 
 (51 & 52 Vict. c. 25, s. 29.) 
 
 This section is merely a statutory recognition of what lias long 
 been the law. For the convenience of their traffic, railway com-
 
 346 THE LA W OF CARRIERS. 
 
 ^a\^'o?7' P'^^^^ies are obliged to divide their area into districts, with, distinct 
 
 Art. «»b4. 
 
 rates and arrangements applicable to each ; yet if such districts are 
 
 arranged for the convenience of the company and not to give any 
 preference or partiality, the Court of Common Pleas would not 
 interfere. [Ransome v. Eastern Counties Eij. Co., 4 C. B. (N. S.) 
 135; 27 L. J. 0. P. 166 ; Same v. Same, 8 C. B. (N. S.) 709 ; 29 
 L. J. C. P. 329.) 
 
 If a railway company charge the same rates for the same traffic 
 going to the same destination from places differing considerably in 
 distance fi'om that destination, this is prima facie evidence of an 
 undue preference. Where there is evidence of a preference, whether 
 or not it is an unreasonable or undue preference within the meaning 
 of sect. 2, is a question of fact. 
 
 As a general rule, charges on traffic using the same railway 
 under the same circimistances ought to be after the same rate per 
 ton per mile, but the rule is not so rigid that any scale that is not 
 in conformity with it is illegal, nor are charges that are unequal, or 
 that cause prejudice and disadvantage, prohibited by sect. 2 of the 
 Eailway and Canal Traffic Act, 1854, unless they act in that way 
 unduly and unreasonably. 
 
 A railway company charged an uniform rate for traffic from an 
 entire district or coalfield ; the collieries were grouped because they 
 all worked the same bed of coal, and the grouping applied compul- 
 sorily to a coalfield extending twenty miles, and covering an area 
 in which some of the collieries were that distance apart. Collieries 
 in one part of such district paid no higher rate than collieries in 
 another for their coal traffic to any particular station, all alike 
 paying one uniform rate, irrespective of any difference in their 
 actual distances from such station. Upon complaint by a colliery 
 company in the district that the effect of the uniform rate was 
 to subject their coal to a higher charge per ton per mile than 
 coal from other collieries, and to deprive them of the advan- 
 tage of their greater proximity to places to which the coal was 
 sent, it was proved that the applicants were charged the same 
 rate for conveyance of their coal to a particular station as was 
 charged for coal sent from other collieries in the same district, 
 
 I
 
 UNDUE PREFERENCE. 347 
 
 although the additional distance to be run was ten or fifteen Chap. xv. 
 
 Art 264 
 miles; that the grouping sj^stem, as it affected the applicants, '- - 
 
 subjected them to an undue and unreasonable prejudice and dis- 
 advantage, and that the railway company ought to carry the appli- 
 cants' coal at a rate per ton per mile not exceeding that charged to 
 other coal owners of the district ; in ascertaining the mileage rate 
 an allowance of l.s. per ton in all cases being first made for fixed 
 expenses. {Dcnahij Main CoUicnj Co. v. Manc/icstcr, Sheffield 8^ 
 LincolmMre Ry. Co., 3 Ey. & Ca. Tr. Ca. 426.) 
 
 Where a railway company have districts for through rates ex- 
 tending over long distances, they are not bound to vary the rates in 
 respect of slight distances. {Lloyd v. Nortlunnpton ^ Banhury Ey. 
 Co., 3 Ry. & Ca. Tr. Ca. 259.) 
 
 265. Any port or harbour authority or dock com- 
 pany which shall have reason to believe that any 
 railway company is by its rates or otherwise placing 
 their port, harbour, or dock, at an undue disadvantage 
 as compared with any other port, harbour, or dock to 
 or from whicli traffic is or may be carried by means of 
 the lines of the said railway company, either alone or 
 in conjunction with those of other railway companies, 
 may make complaint thereof to the Commissioners, 
 who shall have the like jurisdiction to hear and deter- 
 mine the subject-matter of such complaint as they have 
 to hear and determine a complaint of a contravention 
 of section 2 of the Railway and Canal Traffic Act, 
 1854, as amended by subsequent Acts. (51 & 52 Vict, 
 c. 25, s. 29.) 
 
 By section 7 of this Act provision is made for complaints by 
 public authority in certain cases. This section is set out, j^ost^ 
 Appendix. 
 
 266. Where the Commissioners have jurisdiction 
 to hear and determine any matter, they may, in addi-
 
 348 THE LAW OF CARRIERS. 
 
 ^^^P"37- tion to or in substitution for any other relief, award 
 
 Art. 266. ^ . . 
 
 to any complaining party who is aggrieved such 
 
 damages as they find him to have sustained. (51 & 
 52 Vict. c. 25, s. 12, post, Appendix, and ante, Art. 
 233.) In cases of complaint of undue preference no 
 damages shall be awarded if the Commissioners shall find 
 that the rates complained of have, for the period during 
 which such rates have been in operation, been duly 
 published in the rate books of the railway company 
 kept at their stations in accordance with section 14 of 
 the Regulation of Railways Act, 1873, as amended by 
 this Act, unless and until the party complaining shall 
 have given written notice to the railway company 
 requiring them to abstain from or remedy the matter 
 of complaint, and the railway company shall have 
 failed, within a reasonable time, to comply with such 
 requirements in such a manner as the Commissioners 
 shall think reasonable. (51 & 52 Vict. c. 25, s. 13.) 
 It is no defence to an action \>j a railway company to recover 
 charges for the carriage of goods that the charges sued for are 
 unreasonable, so as to give an undue preference to other persons, 
 or to subject the defendant to undue prejudice or disadvantage, 
 within the meaning of section 2 of the Railway and Canal Traffic 
 Act, 185-1, nor can the defendant in such an action set-off or re- 
 cover by counter-claim, over-payments in respect of previous 
 charges which were unreasonable within that section. {Lane, and 
 York. Ry. Co. v. Greenwood 8f Sons, 21 Q. B. D. 215. See ante, 
 Art. 115.) 
 
 11. — Peinciples which decide whethee a Preference 
 IS undue or not. 
 
 267. In determining, under the 2nd section of the 
 Railway and Canal Traffic Act, 1854, whether a rail-
 
 UNDUE PREFERENCE. 349 
 
 way comj^any has given an undue and unreasonable chap. xv. 
 
 ^ Art. *&b7> 
 
 preference to a particular joersoii, company or traffic, 
 
 or subjected a particular person, company or traffic to 
 an undue or unreasonable prejudice or disadvantage, 
 regard will be had to the convenience of the public, 
 and the interest and convenience of the railway com- 
 pany with regard to its general traffic. {Rcmsome v. 
 Eastern Counties Ry. Co. (No. 1), 1 C. B. (N. S.) 437; 
 26 L. J. C. P. 91 ; Nicholson v. G. IF. Rij. Co. (No. 1), 
 5 C. B. (N. S.) ^.m ; 28 L. J. C. P. 89 ; West v. L. 6^ 
 N. W. Rif. Co., L. R. 5 C. P. 622 ; 39 L. J. C. P. 282 ; 
 Lees Y.Lanc. cV York Rij. Co., 1 Ry. & Ca. Tr. Ca. 352.) 
 See ante, Arts. 231 and 232. 
 
 Cresswell, J., in delivering judgment in Barret v. G. N. and 
 Midland Ml/. Cos. (1 C. B. (N. S.) 423 ; 26 L. J. C. P. 83), said 
 that, " in considering what was a reasonable amount of accommo- 
 dation, regard must be had to the convenience of the general traffic 
 of the company." 
 
 In Ransomc's Case (supra), it was laid down that in determining 
 whether a railway company has given any undue and unreasonable 
 preference, the Court may take into consideration the fair interests 
 of the railway itself, and entertain such questions as whether the 
 company might not carry larger quantities, or for longer distances, 
 at lower rates per ton per mile, than smaller quantities or for shorter 
 distances, so as to derive equal profit to itself. 
 
 268. A preference to be undue must be of a per- 
 son similarly circumstanced with the comj^lainant. 
 This principle was imported into the Railway and Canal Traffic 
 
 Act, 1854, from the " equahty clause " of the Railway Clauses Con- 
 solidation Act, 1845. 
 
 See note to Art. 259, where the meaning of the words " the same 
 circumstances " is fully considered. 
 
 269. A railway company pays no more than a due
 
 350 THE LAW OF CARRIERS. 
 
 ^Kn^^' I'Ggard to its own interests if it charges for its services 
 in proportion to their necessary cost, and has only such 
 a variation in its rates as there is in the circumstances 
 of its customers affecting the cost and labour of con- 
 veyance. {Belhthjlte Goal Co. v. North British Ry. Co., 
 2 Ry. & Ca. Tr. Ca. 105.) Therefore a railway com- 
 pany is justified in carrying goods for one j^erson at a 
 less rate than that at which it carries the same descrip- 
 tion 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. 
 (Bcmsome v. Eastern Counties Ry. Co. (No. 1), 1 C. B. 
 (N. S.) 437; 26 L. J. C. P. 91; Oxlade v. North 
 Eastern Ry. Co. (No. 1), 1 C. B. (N. S.) 454 ; 26 L. J. 
 C. P. 129.) 
 
 2 7 . A railway company do not contravene section 2 
 of the Railway and Canal Traffic Act, 1854, by carrying 
 at a lower rate, in consideration of a guarantee of 
 large quantities and full train loads at regular periods, 
 provided the real object of the company be to obtain 
 thereby a greater remunerative profit by the diminished 
 cost of carriage, although the effect may be to exclude 
 from the lower rate those persons who cannot give 
 such a guarantee. (Nicholson and another v. G. W. Ry. 
 Co. (No. 1), 5 C. B. (N. S.) 366; 28 L. J. C. P. 89 ; 
 Ransome v. Eastern Counties Ry. Co. (No. 4), 8 C. B. 
 (N. S.) 709 ; 29 L. J. C. P. 329.) 
 
 These cases decided that a guarantee of a fixed minimum is a 
 ground for lowering the rate. It was assumed thi'oughout in these 
 cases that it was proved that the agreement had the effect of 
 making it cheaper for the railway company to work, and therefore 
 an agreement has only force so far as it affects the cost of working. 
 
 I
 
 UNDUE PREFEUENCE. 351 
 
 All the decisions are to the effect that motive has nothing to do ^^^^'^7' 
 
 with it, 
 
 In Greenoj) v. S. E. By. Co. (2 Ey. & Ca. Tr. Ca. 319), the Com- 
 missioners held a rehate of 15 per cent, and other allowances to 
 customers who guaranteed " to send between Boulogne and London 
 by the South Eastern Company's steamers and railway 850 tons 
 each calendar month " was not um-easonable ; but it should be noticed 
 that the ground of defence on which the company " mainly relied " 
 was that "for the conveyance of goods between Boulogne and 
 London they had to compete mth the General Steam Navigation 
 Company." {8ee post, Ait. 273; and Holland y. Fe-sthuog Eij. Co., 
 2 Ey. & Ca. Tr. Ca. 278 ; llhynmey Iron Co. v. Mymncy Ey. Co., 
 G Ey. & Ca. Tr. Ca.) 
 
 271. When a railway company can cany a longer 
 distance at less cost they may make a ^proportionately 
 less charge per ton for goods carried a greater than 
 for goods carried a less distance. (Strick v. Swansea 
 Canal Co., 16 C. B. (N. S.) 245 ; 33 L. J. C. P. 240; 
 Foreman v. Gt. Eastern Ihj. Co., 2 Ey. & Ca. Tr. Ca. 202.) 
 
 A difference in the distance the traffic is carried is 
 not of itself a valid answer to a complaint of undue 
 preference under section 2 of the Railway and Canal 
 Traffic Act, 1854, and no conclusive inference is to be 
 drawn either on the one hand from a railway company 
 not carrying at an equal mileage rate, or not making 
 an equal profit per mile ; nor, on the other hand, from 
 the rate for the longer distance, though less per mile, 
 amounting to more for the whole distance or leaving 
 a larger sum as profit after payment of expenses ; and 
 in determining the question whether the lower mileage 
 rate is or is not an undue advantage, it is necessary to 
 consider whether either traffic is able to be carried at
 
 352 THE LAW OF CARRIERS. 
 
 Art^2n^" ^ ^^^^ ^^^^ ^^ ^^^ railway company than the other, or 
 Avhether either traffic is under different conditions as 
 regards comj)etition of routes or other special circum- 
 stances. {Broughton and Plas Potocr Coal Co. v. C W. 
 By. Co., 4 Ey. & Ca. Tr. Ca. 191.) 
 
 272. It is not a legitimate ground for giving a 
 preference to one of tlie customers of a railway com- 
 l^any, that he engages to employ other lines of the 
 comj^any for the carriage of traffic distinct from and 
 unconnected with the goods in question. 
 
 SemUe that this applies to other 2:)arts of the same 
 line. 
 
 It is undue and unreasonable to charge more or less 
 for the same service, according as the customer of the 
 railway thinks proper or not to bind himself to employ 
 the company in other and totally distinct business. 
 [Baxendah and others v. G. W. Ry. Co. {Bristol Case), 
 5 C. B. (N. S.) 309 ; 28 L. J. C. P. 69.) 
 
 This case proceeded on the ground that the consideration for the 
 reduction of rates from A. to B. must he in respect of the same 
 traffic and same route, and that it is not sufficient that the favoured 
 customer undertakes to send all goods by the company's lines to 
 justify a reduction in the rate for paper from A. to B., the traffic 
 from A. to B. alone not being worth the difference in charge. 
 (See also BeUsdylx Coed Co. v. North British Ey. Co., 2 Ey. & Ca. 
 Tr. Ca. 105.) 
 
 273. A railway company cannot justify an in- 
 equality in rates made for considerations collateral to 
 the pecuniary interests of the company. {^Harris v. 
 Coclcermouth and WorJcington Ey. Co., 3 C. B. (N. S.) 
 693 : 27 L. J. C. P. 162 ; Eansome v. Eastern Counties 
 
 I
 
 UNDUE PREFERENCE. 353 
 
 111/. Co. (No. 1), 1 C. B. (N. S.) 437 ; 26 L. J. C. P. 91 ; ^^iJiJ; 
 Oxlade v. North Eastern Rjj. Co. (No. 1), 1 C. B. (N. S.) — '■ — ^ 
 454; 26 L. J. C. P. 129.) 
 
 In those cases the judgments of the Court of Common Pleas 
 appear to have proceeded upon the fact that the ground of the 
 reduction in rates in favour of a particular person or class of 
 persons was collateral to the fair interests of the railway company, 
 and was too remote and speculative to afford a justification for 
 making a difference between the persons so favoured and other 
 members of the public. 
 
 In the above case of Ransome the decision was against the rail- 
 way company, because their object was to enable rival coal owners 
 to compete, a collateral object not sufficient to justify a reduction of 
 rates. 
 
 In Oxladch Case (supra), the railway company, from a desii'e to 
 introduce northern coal and coke into Staffordshire, were induced 
 to make special agreements with certain merchants for the carriage 
 of coal and coke at a lower rate than their ordinary charge. The 
 Court held that this was not a legitimate ground for making such 
 agreements, and that lowering their rate for that purpose, there 
 being nothing to show that the pecuniary interests of the company 
 were affected, was giving an undue preference. 
 
 In- the case of Riphici/s Casson Slate Co. v. Fest'uiiog Ey. Co. 
 (2 Ry. & Ca. Tr, Ca. 73), the commissioners held that it was an 
 undue preference where a railway company, with the object of 
 discouraging the construction of a competing line, carried slate for 
 certain quarry owners who agreed to send all their slate over the 
 railway company's line for a fixed number of years at a less rate 
 than they charged for the same service to the complainant quarry 
 owners, who were offered, but refused to bind themselves by, such 
 an agreement. 
 
 274. Competition alone, without any other circum- 
 stances, will not justify a preference in rates. (Evcrslied 
 
 M. A A
 
 354 THE LAW OF CARRIERS. 
 
 ^lvt'2^1 ^'- ^' ^' ^' ^^- ^//- ^^•.' ^ ^PP- ^^^- 1^^^ 5 ^^ L. J. Q. B. 
 — — '- 22 ; Budd v. L. cj- iV. TF. %. Co., 36 L. T. (N. S.) 
 
 802 ; 25 W. R. 752.) 
 
 The Railway and Canal Traffic Act, 1854, does not 
 
 prevent a railway comj^any 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. [Foreman v. Great Eastern Ry. Co., 2 
 
 Ry. & Ca. Tr. Ca. 202.) 
 
 In 1875 several brewers in Burton raised the question whether 
 competition alone, without anything else, would justify an unequal 
 charge. The Railway Commissioners issued an injunction against 
 the London and North "Western Railway Company, commanding 
 them to charge all the brewers equally. (See T/iompso)i, Evo'Hhed^ 
 and others v. L. S^ N. W. Ry. Co., 2 Ry. & Ca. Tr. Ca. 115.) Ever- 
 shed then brought an action in the High Court to recover Is. ^d. 
 upon every ton that he had paid for six years past. The judgment 
 of the Queen's Bench Division proceeded upon this principle: 
 " We think that a railway company cannot, merely 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." The case went to the House of 
 Lords, and the Lord Chancellor (Lord Cairns), in delivering 
 judgment, said : " It appears to me that the question in cases like 
 the present must be simply this : Is the plaintiff obliged to pay 
 one sort of remuneration for services which the railway company 
 performs for him, while the company performs the same services for 
 other traders, either for less remuneration or for no remuneration 
 at all ? In my opinion the railway company is — and that indeed 
 is not disputed — in the collecting, loading, and delivering of goods, 
 performing identically the same services for the plaintiff in this 
 action as for the other two firms of brewers whose names have
 
 UNDUE PREFERENCE. 355 
 
 been referred to. As a matter of policy and expediency it may Chap, xv., 
 
 well be that the appellants have good reason for treating those 
 
 firms as they do. It may be, that if they do not so treat them, 
 those other firms, from the natural advantages of the situation 
 which they have been able to occupy, will send their goods by 
 another railway, and not by the railway of the appellants. But 
 with these considerations the plaintiff in the action has nothing to 
 do. That is exactly one of those things which Parliament has 
 not left open to railway companies to judge of, whether in that 
 way they will equalize their capacity for competing with other 
 lines or not. The one clear and undoubted right to my mind of a 
 public trader is to see that he is receiving from a railway company 
 equal treatment with other traders of the same kind, doing the 
 same business and supplying the same traffic." 
 
 276. A railway company have no right to prefer 
 themselves or their agents to the public and to carriers 
 other than themselves. A railway comj^any is bound 
 to treat common carriers the same as other customers 
 for all purposes, including the mode of charging in 
 the aggregate. (Baxendalc v. North Devon Ry. Co., 3 
 C. B. (N. S.) 324; Baxendale v. G. W. Rij. Co. {Reading 
 Case), 5 C. B. (N. S.) 336 ; 28 L. J. C. P. 81.) 
 
 The ground of the decision in this latter case was, that where a 
 railway company carries on some other business, they must in 
 respect of such business be taken to be quoad the railway in the 
 position of third parties. 
 
 Many of the cases decided by the Court of Common Pleas under 
 sect. 2 of the Pailway and Canal Traffic Act, 1854, were applica- 
 tions for an injunction by carriers competing with railway com- 
 panies, and complaining that in sending goods by railway and in 
 carting them to and from railway stations, the companies subjected 
 them to disadvantages, and gave themselves and their agents 
 
 A a2
 
 356 THE LAW OF CARRIERS. 
 
 Art. 275. 
 
 aI^' ^7^" pi'sfsi'eiices wliicli were undue. The same ground of decision as 
 stated in this Article will be found in all the carriers' cases. 
 
 In Cooper v. L. .^ 8. W. Ry. Co. (4 C. B. (N. S.) 738) the Court 
 decided that the railway company were not bound to unload 
 carriers' trucks, but intimated that if they unloaded some they 
 should unload all, or that they could be compelled to treat all 
 equally by unloading none or all. 
 
 In the case of Goddard v. L. ^^ S. IF. Rij. Co. (1 Ey. & Ca. Tr. 
 Ca. 308), the treatment complained of as unequal was that the 
 company showed a partiality to themselves to the prejudice of the 
 complainant. 
 
 The fact that a package is composed of separate parcels, the 
 aggregate amount of which, if carried separately, would be greater 
 than would be chargeable for the entire package, and that the 
 person who tenders the package is himself a carrier, and collects 
 such parcels in the way of his business, is no legal ground for 
 refusing to carry it on the same terms as similar packages for other 
 persons. {Cyouch v. L. 8f N. W. By. Co., 14 C. B. 255 ; 9 Exch. 
 556.) 
 
 As to closing the doors of the station against the public or an 
 individual, and not against the company's agent, see Baxendale 
 V. L. (^ S. TV. By. Co., 12 C. B. (N. S.) 758 ; and Pcthner v. L. Sf 
 S. W. By. Co., L. E. 1 C. P. 588 ; 35 L. J. C. P. 289. 
 
 276. A railway company cannot include in a 
 charge for carrying a charge for collection and de- 
 livery, whether the customer requires the services to 
 be performed for him or not. [Baxendale v. Gt. W. By. 
 Co. {Beading Case), 5 C. B. (N. S.) 336 ; 28 L. J. C. P. 
 81.) 
 
 If goods are carried at a carted or collection and 
 delivery rate, and the collection or delivery is not 
 performed by the raihvay company because the sender 
 or consignee of the traffic performs it himself, or by
 
 UNDUE PREFERENCE. 357 
 
 any agent lie chooses to employ, the railway company 
 must make a deduction off such rates of such portion 
 of them as is referable to the cost of collection or 
 delivery. [FisJiboiirne v. Gt. Southern and Western Ry. 
 Co., 2 Ey. & Ca. Tr. Ca. 224 ; 3Ienzies v. Caledonian 
 Ry. Co., 5 Ry. & Ca. Tr. Ca. 306.) 
 
 The collection and delivery rates, as they are called, of a 
 railway company include their charge, not only for carriage by 
 railway, but also for the service of carting to and from the termini. 
 The public, however, is not obliged to employ the company as 
 carriers to and from the railway ; it may employ any hands it 
 pleases to send or receive goods by, and if the goods are of the sort 
 for which carted rates are charged, and the carting is not done by 
 the company, a deduction may be claimed off the rate correspond- 
 ing to the expense and trouble saved to the company. 
 
 The decision in Baxendale' s Case was followed in subsequent 
 cases at the suit of carriers against railway companies. (See 
 Carton v. G. W. Ry. Co., 5 C. B. (N. S.) 669 ; 28 L. J. C. P. 158 ; 
 Carton v. Bristol and Exeter Rij. Co., 6 C. B. (N. S.) 639 ; 28 L. J. 
 C. P. 306.) 
 
 In the former of these two cases it was decided that the fact of 
 the company's deriving no profit from the collection or delivery 
 made no difference. 
 
 As to what rebate should be allowed for cartage, it is doubtful 
 whether the company are not bound to allow the charge made by 
 them to the public for the same service, or, in cases where that is 
 not a satisfactory test, the actual cost to the company of the 
 service and any profit which may accrue thereon to the company 
 or be estimated by them in respect thereof. {Goddard v. L. ^ S. 
 IF. Ry. Co., 1 Ey. & Ca. Tr. Ca. 308.) It is submitted that the 
 profit which the company is entitled to in such a case is a reasonable 
 profit. The Eailway Commissioners in their judgment in that 
 case said : " Groods consigned by railway must, to complete their 
 transport, be carted to and from the stations as well as conveyed 
 
 Ch. XV. 
 Art. 276.
 
 358 THE LAW OF CARRIERS. 
 
 f ^' oJc upon the line. Conveyance on the railway is in practice a monopoly 
 
 Art. 4il\3t n 1 "I 
 
 of the railway companies : hut the service of collection and delivery 
 
 is open to competition, and common carriers and the puhlic can all 
 engage in it. When the service is undertaken by the companies 
 they have two ways of charging for it : they either make their 
 goods rate a station to station rate only, and charge separately for 
 cartage, or they make their goods rate a collected and delivered 
 rate, which includes collection and delivery within a fixed distance 
 or boundary from the stations of the two to-uns, from the one to the 
 other of which the goods are carried on the railway. The com- 
 panies seldom have both kinds of rates in operation at the same 
 time between any two stations, and consequently, where the 
 collected and delivered rate is in force, they are usually obliged to 
 allow a rebate or deduction off it in respect of goods which they are 
 employed to carry only, and not to collect and deliver as well. 
 The goods rates of the railway companies in London north of the 
 Thames are said to be nearly all collected and delivered rates ; 
 but the London and South "Western Railway Company is the only 
 company on the south side of the river which has adopted that 
 form of goods rate, and even they have still eighty stations where 
 the goods rates are station to station rates only." 
 
 A railway company carried traffic from A. station at collection 
 and deliver}" rates, and appointed an agent to perform the service 
 of carting to the station for them. The applicant, a canier, also 
 carted to the A. station goods for which the railway company 
 charged collection and delivery rates. The company refused to 
 pay applicant anything at all in respect of such cartage. The 
 Railway Commissioners held, that if the railway company chose to 
 protect themselves by charging only the rate, less the fair allow- 
 ance for collection, they could do so ; but if the goods were carried 
 and charged for at a collection and delivery rate they were bound 
 to pay a reasonable sum to the person who had performed the 
 collecting service. 
 
 The Commissioners ordered the railway company to pay to the 
 applicant the sum of lOd. per ton in respect of the service so per-
 
 UNDUE PREFERENCE. 359 
 
 formed, this being the amount which they paid to their own agent 
 for the service of actual cartage. {Mciizies v. Caledonian Rij. Co., 
 5 Ry. & Ca. Tr. Ca. 306.) 
 
 A customer is not entitled to any allowance in respect of assist- 
 ance in the loading, unloading, or weighing of goods given by his 
 men to a railway company voluntarily, or for the customer's own 
 convenience. {Edwards v. G. W. R>j. Co., 11 C. B. 588.) 
 
 Upon complaint by a carrier, who collected and carted stamped 
 and unstamped parcels to the railway company's terminus, that 
 although the trouble and expense was the same to him whether 
 parcels were stamped or unstamped, yet the railway company 
 allowed him nothing in respect of the former : the Railway 
 Commissioners held, that the railway company had not given an 
 undue preference either to themselves or to the person they em- 
 ployed as their carting agent, because they charged the public 
 nothing for collection, and the collection of stamped parcels cost 
 them nothing, the carting agent consenting to carry stamped 
 parcels gratis in consideration of being paid Id. for every un- 
 stamped parcel. 
 
 Semhie, such an arrangement would be an undue preference over 
 a carrier who only carted stamped parcels. {Robertson v. Midland 
 G. W. Ry. Co. {Ireland), 2 Ry. & Ca. Tr. Ca. 409.) 
 
 277. The Railway Commissioners have jurisdiction 
 to inquire into a complaint of undue preference being 
 shown by railway companies to one town or place 
 over another town or place. ( Corporation of Dover v. 
 ^. E. Ry. Co. and L. C. ^^ D. Ry. Co., 1 Ry. & Ca. Tr. 
 Ca. 349.) 
 
 To a complaint under section 2 of the Railway and 
 Canal Traffic Act, 1854, of an inequality of charge, it 
 is no answer that the traffic favoured and the traffic 
 prejudiced are not in the same locality or district; 
 and, assuming that there is a competition of interests. 
 
 Ch. XV. 
 Art. 276.
 
 360 THE LAW OF CARRIERS. 
 
 ^Kxt'^i' ^^^^ ^^^^^ circumstances in other respects are not dis- 
 similar, tlie traffic of two localities, both on the same 
 system of railways, although at a distance from each 
 other, is as much within the Act as the traffic of two 
 or more individuals in the same locality. {^Richardson 
 and others v. Midland Ry. Co.., 4 Ey. & Ca. Tr. Ca. 1.) 
 
 That a preference of one town over another may be justified by 
 the exigencies of the traffic, see Hozicr^s Case, 17 Sess. Ca. 302 ; 
 The Caterham Ey. Co.'s Case, 1 C. B. (N. S.) 410 ; 26 L. J. C. P. 
 16 ; and Jones' Case, 3 C. B. (N. S.) 718 ; but that the Court will 
 interfere to prevent such preference in the absence of sufficient 
 justification, see the judgments of Lord President M'Neill in 
 Hozier's Case, and of Cockburn, C. J., in Baxendale v. G. W. Bf/. 
 Co. {Readiug Case), 5 C. B. (N. S.) 336; 28 L. J. C. P. 81. 
 
 As to uniform or group rates for a district, see a)ite, Article 264. 
 
 278. Any arrangement in favour of one class of 
 vehicles entering their station yards over others of the 
 same class, will be an undue preference on the part of 
 the railway company, where it is shown to occasion 
 public inconvenience, and there is no cause, such as 
 want of sj)ace, for the preference. {Marriott v. L. &f 
 S. W. Ry. Co., 1 C. B. (N. S.) 499; 26 L. J. C. P. 
 154.) 
 
 Where a railway company agreed -^ith a cab proprietor, in 
 consideration of his paying them 600/. per annum, to allow him 
 the exclusive liberty of plying for hue within their station, the 
 Com't of Common Pleas refused to grant a writ of injunction 
 against the railway company, at the instance of another cab pro- 
 prietor, no inconvenience to the pubHc being shown to have arisen 
 from the arrangement. [Beadell v. Eastern Counties By. Co., 2 
 C. B. (N. S.) 509 ; 26 L. J. C. P. 250.)
 
 UNDUE PREFERENCE. 361 
 
 MarrioWs Case was decided on tlie inconvenience inflicted on the Chap. xv. 
 
 Art 278 
 
 public, not on the individual, and this was expressly stated to have '■ '- 
 
 been the ground of the decision. In BcadeWs Case, and the cases of 
 Painter v. L. B. S^ S. C. By. Co. (2 0. B. (N. S.) 702) and 
 Ilfmcomhc Conveyance Co. v. L. 8^^ 8. W. By. Co. (W. N. 1868, 
 p. 269, 1 Ry. & Ca. Tr. Ca. 61), the complainants were unsuccess- 
 ful, because the Court was not satisfied that there was a substan- 
 tial inconvenience to the public from the cab arrangements made 
 for them by the railway company. 
 
 The result of these cases appears to be that omnibus and cab 
 proprietors, &c., as such, have no locus standi to apply for an 
 injunction, but that an injunction may be granted to admit their 
 vehicles, if it be proved to be for the benefit of the public that 
 they should be admitted. 
 
 *' Jack man v. Isle of Wight Bail any Company was a case of 
 vehicles plying for hire in competition, and of the railway com- 
 pany giving one of them an undue advantage, the vehicle of the 
 complainants being excluded from the station yard at Yentnor, 
 while that of another coach proprietor was admitted. There was 
 no answer to the application, and the case was disposed of by 
 agreement, the company paying costs." (3rd Eeport of Railway 
 Commissioners.) 
 
 In Barker v. Midland By. Co. (18 C. B. 46 ; 25 L. J. C. P. 84), 
 it was held that no action lies for excluding an omnibus from a 
 railway station. 
 
 Jervis, C. J., in giving judgment in that case, said : " It is not 
 pretended that the plaintiff himself uses the railway, but that he 
 carries persons who do so, and he has no right to make a contract 
 for the use of the defendant's private property. The railway is 
 not a public highway for horses, carts, and omnibuses. What 
 right has an omnibus to go upon the ground of the railway ? " 
 
 Cresswell, J., said : "If the railway company refused a passenger 
 by the railway leave to come on to the station, he perhaps might 
 maintain an action. But this plaintiff does not desii'e, himself, to 
 use the railway, but that his customers should do so."
 
 362 THE LAW OF CARRIERS. 
 
 CJ^^P- ^7' ^'^^ Crowder, J., said : " This is not an action brought by any- 
 
 Arti 278. ^ 
 
 body 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 them- 
 selves or their goods." 
 
 279. If a customer to whom credit has been 
 allowed retains a balance due to a railway company 
 as a set-off against a balance in dispute on another 
 account, the company are justified in refusing such 
 customer a further ledger account, without contra- 
 vening sect. 2 of the Railway and Canal Traffic Act, 
 1854. [SJcinningrove Iron Co. v. North Eastern Ry. Co., 
 5 Ry. & Ca. Tr. Ca. 244.) 
 
 It is no ground of complaint that the company give 
 credit to or have a monthly ledger account with certain 
 of their customers, and refuse the same to persons for 
 whom goods are collected and delivered by carriers, 
 unless it be shown that the difference was made for 
 the purpose of preventing competition or of otherwise 
 injuring the complainant. [Goddard v. L. ^' S. W. 
 Ry. Co., 1 Ry. & Ca. Tr. Ca. 308.) 
 
 In Piclford v. Caledonian Ey. Co. (4Sess. Ca. (SrdSer.) 755), one 
 of the complaints was that certain preferred carriers were allowed 
 a monthly credit, whereas the complainant was compelled to pay 
 ready money, but the Court found that there was no evidence on 
 the credit question. In the Skinning rove Case, Sir Frederick Peel, 
 in delivering judgment, said : " The applicants also complain that 
 the railway company do not allow them to pay upon monthly 
 accounts, as they do other firms, but require all traffic to be paid 
 on delivery, and each day's consignment of pig iron to be accom- 
 panied with a remittance. It appears that early in 1882 they 
 
 il
 
 UNDUE PREFERENCE. 363 
 
 began to have a dispute witli the railway eompan}^ about the rate ^^^^\37' 
 
 on ironstone from Brotton mines to the Skinningrove "Works : and 
 
 on the plea that there had been an excess charge of 2(1. or 2^(1. a 
 ton on the ore, they in July, 1884, refused to pay in full the sums 
 due by them on their pig iron carriage account, and deducted 
 1,500/. as a set-off for alleged overcharge on Brotton ironstone ; 
 and thereupon (on 14th August, 1884) the railway company 
 informed them that their ledger account would be at once closed, 
 and that the usual credit would no longer be continued to them. 
 I think the company were almost forced into taking this step, and 
 that it is not their fault either if credit is still refused. They give 
 credit to accommodate their customers in paying their accounts 
 with them, and if the accommodation is used by their customers to 
 exercise a control over the company's rates of charge which they 
 would not otherwise have, or as a means of postponing payment 
 indefinitely, the company are in my opinion justified in with- 
 drawing it altogether. The company, however, have long been 
 willing, as their letter of August 6th, 1886, shows, to come to an 
 arrangement with the applicants for re-opening their ledger 
 account, their terms being that they should have an undertaking 
 by the applicants that the accounts should in f utm-e be paid as 
 rendered (without prejudice of course to the applicants' rights if 
 there should be any overcharges), and that they should also have a 
 personal guarantee of two of their directors for the papnent of the 
 accounts. The applicants, however, have declined to give the 
 personal guarantee, contending that such assent might be con- 
 strued to be a concurrence on their part in the existing rates 
 charge, meaning the rates charged to them under the pig iron 
 scale of April, 1884. Other firms therefore have a preference over 
 them in this matter of credit, but the same facility for paying 
 their railway dues would have been afforded to the applicants had 
 they accepted the terms offered ; and as I do not consider those 
 terms unreasonable, I think they ought to bear the consequences 
 of refusing them, and that they are not entitled to relief under the 
 Traffic Act."
 
 ( 364 ) 
 
 Part III. 
 
 CARRIERS OF ANIMALS BY RAILWAY. 
 
 — ♦— 
 
 CHAPTER XVI. 
 
 THE OBLIGATIONS OF A RAILWAY COMPANY WITH EEGARD TO 
 THE CONVEYANCE OF ANIMALS. 
 
 I. — By Statute. Articles. 
 
 1. Obligation to carry Atmnals under sect. 2 of the Baihvay and 
 
 Canal Traffic Act, 1854 (17 Sf 18 Vict. c. 31) 280 
 
 2. Limitation of Liability for LjOss of or Lijiiry to Animals under 
 
 sect. 7 of the Railway and Canal Traffic Act, 1854 281 
 
 3. Conveyance of Animals partly by Railway and partly by Sea 
 
 under sect. 12 o/ 34 ^ 35 Vict. c. 78 282 
 
 4. Limitatioti of Liability during the Sea Transit binder sect. 14: of 
 
 31 Sf 32 Vict. c. 119 283 
 
 6. Obligation to provide proper Trucks, Horse Boxes, ^'c, and to 
 
 prevent Overcrotvding (41 ^ 42 Vict. c. 74) 284 
 
 6. Obligation to cleanse and disinfect Horse Boxes and Cattle 
 
 Trucks (41 ^^ 42 Vict. c. 74) 285 
 
 7. Oblic/ation to provide Food and Water for Cattle during Raihvay 
 
 transit (41 ^- 42 Vict. e. 74) 286 
 
 II. — Geis^erally. 
 
 8. Their Liability as Insurers of Animals 287 
 
 9. The Delivery of the A^iimals to the Railway Company 288 
 
 10. Obligation to provide Trucks reasonably sufficient for Ordinary 
 
 Journey 289 
 
 11. Must carry loithin a reasonable Time 290 
 
 12. Degree of Care required from the Railway Company in delivering 
 
 Animals 291 
 
 13. Duty to deliver in a ft and proper Place , 292 
 
 14. Duty of Consignee to remove the A^iimals on arrival 293 
 
 15. What Company may do if Horse not removed on arrival 294
 
 THE CARrdAOE OF ANIMALS BY RAILWAY. 365 
 
 Ch. XVI. 
 
 I.— By Statute. ^^t. 28o. 
 
 280. Section 2 of the Eailway and Canal Traffic 
 Act, 1854, imposes on a railway company the duty 
 to afford reasonable facilities for carrying* animals, 
 {Dickson v. G. N. R>j. Co., 18 Q. B. D. 176 ; 56 L. J. 
 Q. B. Ill; ante, Art. 147, and p. 120.) A railway 
 company are not bound to be common carriers of 
 animals, yet being bound by such section to afford 
 facilities for the carriage of animals, they can only 
 limit their liability in respect thereof by reasonable 
 conditions within the meaning of section 7 of that 
 Act. {Ibid, see Art. 281.) 
 
 The carriage of live stock forms an important branch of railway 
 traffic, and demands a sejoarate chapter. Before the passing of the 
 Eailway and Canal Traffic Act, 1854, railway companies could 
 lawfully refuse to carry animals except upon their own terms. 
 They used to issue the following notice : — 
 
 " The Eailway Company give notice that they will not, 
 
 imder any circumstances, be answerable for injury to horses con- 
 veyed upon their railway ; and they will not receive any liorse for 
 conveyance unless accompanied by a declaration, signed by the 
 owner or his authorized agent, that the company are not to be hable 
 for injury to such horse while in their custody, although every 
 proper precaution will be taken to seciu-e their safe conveyance." 
 
 It was held that a railway company might by special contract 
 throw the risk of conveyance of horses on the owner. (See Carr 
 V. Lane. 8f York. Bi/. Co., 21 L. J. Ex. 263.) Parke, B., in de- 
 Hvering judgment, said : — 
 
 " Before railways were in use the articles conveyed were of a 
 different description from what they are now. Sheep and other live 
 animals are now carried upon railways, and horses which were 
 used to draw vehicles are now themselves the objects of convey-
 
 366 THE LA W OF CARBIEBS. 
 
 Ch. XVI. ance. Contracts, therefore, are now made with reference to the 
 
 Art. 280. ... 
 new state of things, and it is very reasonable that carriers should 
 
 be allowed to make agreements for the purpose of protecting them- 
 selves against the new risks to which they are in modern times 
 exposed. Horses are not conveyed on railways without much risk 
 and danger : the rapid motion, the noise of the engine, and various 
 other matters, are apt to alarm them, and to cause them to do 
 injury to themselves. It is, therefore, very reasonable that carriers 
 should protect themselves against loss by making special contracts." 
 
 In Chippendale v. Lane. 8f York. By. Co. (21 L. J. Q. B. 22), 
 Erie, J., said, " 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 might be almost im- 
 possible to carry wild ones without injury." 
 
 In both these cases the railway company were held protected from 
 liability to the plaintiff for damage to his cattle by the terms of a 
 ticket which the plaintiff had received from the railway company 
 and had signed. The terms were, that the ''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." 
 
 In a case that was decided long after the passing of the Act of 
 1854, it was held that a railway company might exclude the 
 carrying of animals from their public profession of carriers, and 
 refuse to carry them except under a special contract. [Richardson 
 V. N. E. Ry. Co., L. R. 7 C. P. 75 ; 41 L. J. C. P. 60.) The 
 facts in that case were these : — 
 
 A dog was delivered by its owner to a railway company for 
 carriage on their railway. The company received it, not as 
 common carriers, but as ordinary bailees. The dog was delivered 
 with a collar on it and a strap attached thereto. During the 
 journey there was a change of trains; for security during the 
 interval of change a servant of the company fastened the dog iip 
 by means of the strap, and the dog slipped through the collar, got 
 
 II
 
 THE CARRIAOE OF ANIMALS BY BAIL WAY. 367 
 
 on to the railway, and was killed. It was held, that the fastening: Ch. xvi. 
 
 Art 280 
 the greyhound by the means furnished by the owner himself, '■ - 
 
 which at the time appeared to be sufficient, was no evidence of 
 negligence on the part of the company, w^ho were therefore not 
 liable. 
 
 This case is sometimes cited as an authority that railway com- 
 panies are not common carriers of animals, but it is not so ; for it 
 was found as a fact in the case stated, that the company were 
 not common carriers of dogs, so as to have an absolute responsi- 
 bility imposed on them to carry dogs. Consequently, the company 
 were, with reference to the dog in question, in the position of 
 ordinary bailees, and only liable for its loss in the event of negli- 
 gence on their part, and would not be liable if its loss was by 
 reason of the negligence of the person who deKvered the dog to the 
 company. Willes, J., in delivering the judgment of the Court, 
 said : " What Lord Ellenborough said in Stuart v. Crairlei/ (2 
 Stark. 323), is, we think, very applicable. That was an action for 
 the loss of a greyhound which had been delivered to the defendant, 
 a carrier. The dog had no collar, but was taken to the defendant's 
 warehouse with a string round its neck; and the defendant's 
 servants gave a receipt for it, which was not done here. The dog 
 in that case was afterwards tied by this string to a watch-box, and 
 it slipped from its noose and was lost. Lord Ellenborough held 
 that the defendant in that case was responsible ; and he said that 
 it was not like the case of a delivery of goods imperfectly packed, 
 since there the defect was not visible, but that here the defendant 
 had the means of seeing that the dog was insufficiently secured. 
 The defendant was therefore 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 its neck. Obviously that case is a 
 very different one from the present, because here the dog was 
 delivered with a collar and a strap, which clearly indicated that 
 the proper mode of secm^ing the animal was by these. The present 
 case differs from that of Stuart v. Craidey in two important par- 
 ticulars. In the first place the company are not common carriers
 
 368 '-^liE LAW OF CARRIERS. 
 
 Ch. XVI, of doe-s, and in the next place the doff which was delivered in that 
 
 Art 280 i o 
 
 '■ '- case was evidently not intended to be secured by the string, and 
 
 the defendant had the means of seeing how it ought to be secured 
 , . . in so deciding we only follow the decision of this Court 
 in The Great Western Puj. Co. v. Tallci/' {post, p. 412.) 
 
 The Court of Appeal has now decided, in Dickson's Case {ante, 
 p. 120), that a railway company, under sect. 2 of the Eailway and 
 Canal TrafSc Act, 1854, are as much bound to provide reasonable 
 facilities for the carriage of animals as for the carriage of goods. 
 The question has never been directly raised before the Commis- 
 sioners, but they intimated the same opinion several times before 
 the decision was given in Dickson's Case. See note to Art. 120. 
 
 As to what damages a railway company were liable for where 
 they failed to provide horse-boxes, pursuant to contract, for the 
 conveyance of horses, and the horses had to be sent by road, and 
 were injured on the journey, see note to Art. 164. 
 
 In America a railway company that transports cattle and live 
 stock for hire, for such persons as choose to employ them, are held 
 to thereby assume and take upon themselves the relation of common 
 carriers, and with the relation the duties and obligations which 
 grow out of it ; and they are none the less common carriers from 
 the fact that the transportation of cattle is not their principal 
 business or employment. {Kimhall v. Rutland By. Co., 26 Vt. 247.) 
 
 281. Every railway company is liable for loss of or 
 for any injmy done to any horses, cattle, or other 
 animals, in the receiving, forwarding, or delivering 
 thereof, occasioned by the neglect or default of the 
 company or its servants, notwithstanding any notice, 
 condition, or declaration made and given by such 
 company contrary thereto, or in anywise limiting such 
 liability; and every such notice, condition, or decla- 
 ration is null and void. 
 
 A railway company may make a sj)ecial contract
 
 THE CARRIAGE OF ANIMALS BY RAILWAY. 369 
 
 with the consignor respecting the receiving, forward- 
 ing, and delivering of any of the said animals, pro- 
 vided that : — 
 
 (1.) It is in writing. 
 
 (2.) It is signed by the consignor, or the person 
 delivering such animals for carriage. 
 
 (3.) Its conditions are just and reasonable. 
 
 A railway company are not liable for the loss of or 
 for injmy done to any of the following animals 
 beyond the sums hereinafter mentioned ; viz. : 
 
 A horse £50 
 
 Neat cattle (per head) - - - 15 
 Sheej) (per head) - - - - 2 
 Pigs (per head) - . - - 2 
 Unless the person sending or delivering the same to 
 the railway company, at the time of such delivery, 
 declare them to be respectively of higher value than 
 as above mentioned ; in which case it is lawful for the 
 railway company to demand and receive, by way of 
 com^^ensation for the increased risk and care thereby 
 occasioned, a reasonable percentage upon the excess 
 of the value so declared above the respective sums so 
 limited as aforesaid, and which shall be paid in addi- 
 tion to the ordinary rate of charge. 
 
 The proof of the value of such animals, and the 
 amount of the injmy done thereto, in all cases lies 
 upon the person claiming compensation for such loss 
 or injury. (The Railway and Canal Traffic Act, 1854, 
 17 & 18 Vict. c. 31, s. 7.) 
 
 The section also enacts that " such percentage or increased rate 
 of charge shall be notified in the manner prescribed in the 
 
 M. B B 
 
 Ch. XVI. 
 Art. 281.
 
 370 THE LAW OF CAREIER8. 
 
 Ch. XVI. 11 Geo. 4 & 1 Will. 4, c. 68, and sliall be binding upon sucb 
 
 Arti Soli , ,• rni • 
 
 company in the manner therein mentioned. These requirements 
 
 are stated ante, Ai't. 72, p. 63, 
 
 It is a question for a jury whether the percentage charged for 
 the extra value declared is reasonable. {Harrison v. L. B. ^ S. C. 
 Ry. Co., 31 L. J. a B. 113.) 
 
 It appears that the " reasonable percentage " which the railway 
 companies are authorized to demand by the 7th section of the 
 Eailway and Canal Traffic Act, 1854, for the carriage of certain 
 animals of great value, may exceed the maximum fixed by the 
 special Acts of the companies, so far as the animals specified in the 
 section are concerned. "With regard to animals not so specified, 
 and with regard to goods, the section gives no power to exceed the 
 maximum, and the higher " alternative rate " must in any case be 
 within it. [Per Cochburn, 0. J., in Pceh v. N. Staff. By. Co., 10 
 H. L. Ca. p. 561 ; Hodges on Eailways.) 
 
 To entitle the company to demand the percentage under sect. 7, 
 the sender must make a declaration of the value with the intention 
 of paying the percentage. {Eobinson v. L. 8f 8. W. Ry. Co., 34 
 L. J. C. P. 234.) In that case a special jury found 5 per cent, on 
 additional value of horse above 50/., for carriage above fifty miles 
 reasonable. Some railway companies charge a small additional 
 percentage per mile, while others charge an equal percentage what- 
 ever the distance may be. 
 
 If the sender declare the horse or other animal to be of less 
 value than the sums mentioned in the Act, he cannot recover any 
 greater damages for the loss of, or for any injury done to, such 
 horse or other animal while in the hands of the railway company, 
 than the amount of the declared value. {McCance v. L. 8^ N. W. 
 Ry. Co., 3 H. & C. 343.) 
 
 Deterioration of cattle from want of food and water is an 
 " " injury " within the meaning of the Act. {Allday v. G. W. Ry. 
 Co., 34 L. J. Q. B. 5 ; 5 B. & S. 903.) 
 
 Dogs are comprehended in the words " other animals." (Har- 
 rison V. L. B. (^- 8. C. Ry. Co., 31 L. J. Q. B. 113.)
 
 THE CARRIAGE OF ANIMALS BY RAILWAY. 371 
 
 As to what conditions in contracts for the conveyance of live Ch. xvi. 
 
 Art, 281. 
 
 stock have been held to be reasonable or unreasonable, see note 
 
 to Art. 171. 
 
 Where an agent who is employed to deliver cattle to be sent by 
 a railway company signs the consignment note, he must be taken 
 to have known the contents, and thereby binds his principal. 
 {Kirhj V. G. W. Ri/. Co., 18 L. T. G58.) Martin, J., in delivering 
 judgment in that case, said : " 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 
 pui'pose of making the contract under which the cattle were to be 
 carried." 
 
 Where injuiy was done to a horse at a railway station by the 
 negligence of the company before the declaration of value had been 
 made, or ticket taken, or fare demanded, it was held that this was 
 an injury in the receiving, and the owner could not recover more 
 than 50/., even though it was the usual practice to put horses into 
 the horse-boxes before declaring their value or paying the fare. 
 {Eodgman v. W. Midland Ry. Co., 35 L. J. Q. B. (Ex. Ch.) 85 ; 
 6 B. & S. 5G0.) It may be useful to state the facts of that case. 
 As the groom was leading the horse, by the direction of one of the 
 railway porters, to a particular part of the yard, the horse was 
 startled by another horse, and backed, in consequence, on some 
 sharp iron girders which seriously injured it, so that it was neces- 
 sary to kill it. The jury found that the railway company were 
 guilty of negligence in leaving the girders where they were lying. 
 
 Mellor, J., said: "It appears to me the more reasonable 
 construction is that so soon as the horse enters the com- 
 pany'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 by the statute, he must have made the requisite 
 declaration of value before the horse was taken to the premises of 
 the company." 
 
 B B 2
 
 372 THE LAW OF CARRIERS. 
 
 ^^'t^2^i 282. Where a railway company, under a contract 
 
 for carrying animals by sea, procure the same to be 
 carried in a vessel not belonging to them, their liabi- 
 lity in respect of loss or damage to such animals is 
 the same as though the vessel had belonged to them. 
 (The Regulation of Railways Act, 1871, 34 & 35 Vict. 
 c. 78, s. 12.) 
 
 By a proviso to section 12, this hability only attaches when the 
 loss or damage to the animals happens during the carriage of the 
 same in such vessel, the proof to the contrary to lie upon the rail- 
 way company. 
 
 As to extension of enactments as to undue preference to cattle 
 carried by sea by a railway company, see 51 & 52 Vict. c. 25, 
 s. 28, postf Appendix. 
 
 283. Where a railway company by through book- 
 ing contract to carry any animals from place to place 
 partly by railway and partly by sea, they may, by 
 publishing in their booking office, and printing on the 
 back of their receipt or freight note, a notice to the 
 effect that they will not be responsible for damage 
 caused by accident or fire to animals carried by sea, 
 limit their liability in that resjoect. (The Regu- 
 lation of Railways Act, 1868, 31 & 32 Vict. c. 119, 
 s. 14.) 
 
 The section is set out in Art. 173. 
 
 284. The Privy Council, in exercise of the powers 
 in them vested under the Contagious Diseases (Animals) 
 Act, 1878 (41 & 42 Vict. c. 74), have made the follow-
 
 THE CARRIAGE OF ANIMALS BY RAILWAY. 373 
 
 ing Regulations as to trucks, horse-boxes, or other ^Jj^gJ* 
 vehicles, and to j^revent overcrowding : — ~^ 
 
 " Trucks, Horse-Boxes, or other Vehicles. 
 
 " Every railway truck, horse-box, or other railway vehicle, used 
 for carrying animals, horses, asses, or mules on a railway, shall be 
 provided at each end with two spring buffers, and the floor thereof 
 shall, in order to prevent slipping, be strewn with a proper quan- 
 tity of litter or sand or other proper substance, or be fitted with 
 battens or other proper foot-holds." (The Animals Order of 188G, 
 Part IV. Chap. 26, Art. 123.) 
 
 " Overcrowding. 
 
 "A railway company shall not allow any railway truck, horse-bos, 
 or other vehicle used for carrying animals, horses, asses, or mules 
 on the railway to be overcrowded so as to cause unnecessary suffer- 
 ing to the animals, horses, asses, or mules therein." {Ibid., Art. 
 124.) 
 
 " Shorn Sheep. 
 
 " Between each first day of November and the next following 
 thirtieth day of April (both days inclusive) every railway truck or 
 other railway vehicle carrying sheep shorn and unclothed shall bo 
 covered and inclosed so as to protect the sheep from the weather, 
 without obstruction to ventilation ; except that this Article shall 
 not apply to sheep last shorn more than sixty days before being so 
 carried." [Ibid., Ai-t. 125.) 
 
 " Offences. 
 
 Ai't. 126 of this Order provides that : — " If anything is done or 
 omitted to be done in contravention of any of the foregoing provi- 
 sions of this Part, .... the railway company carrying animals on
 
 374 THE LAW OF CARRIERS. 
 
 r^ ^7}' ^^' owning or working the railway on whicli, — and also, in case of 
 
 Art. 284. 
 
 — the overcrowding of a railway truck, horse-box, or other vehicle on 
 
 a railway, or of the carrying on a railway of sheep shorn and un- 
 clothed, the consignor of the animals in respect of which, — (as the 
 case may be,) the same is done or omitted, shall, each according to 
 and in respect of his or their own acts or omissions, be deemed 
 guilty of an offence against the Act of 1878." 
 
 285. The Privy Council, in exercise of the powers 
 in them vested under the Contagious Diseases (Ani- 
 mals) Act, 1878 (41 & 42 Vict. c. 74), have made the 
 following Regulations as to the cleansing and disinfec- 
 tion of horse-boxes, cattle-trucks, and other vehicles 
 used on railways : — 
 
 '^ ITorse-Boxes. 
 
 " (1.) A horse-box lised for horses, asses, or mules on a railway 
 shall, on every occasion after a horse, ass, or mule is taken out of 
 it, and before any other horse, ass, or mule, or any animal is placed 
 therein, be cleansed as follows : 
 
 " (i.) The floor of the horse-box, and all other parts thereof with 
 
 which the droppings of horses, asses, or mules have come 
 
 in contact shall be scraped and swept, and the scrapings 
 
 and sweej)ings, and all dung, sawdust, fodder, litter, and 
 
 other matter shall be effectually removed therefrom; 
 
 and 
 
 " (ii.) The sides of the horse-box and all other parts thereof 
 
 with which the head or any discharge from the mouth or 
 
 nostrils of a horse, ass, or mule has come in contact shall 
 
 be thoroughly washed with water by means of a sponge, 
 
 brush, or other instrument. 
 
 " (2.) The scrapings and sweepings of the horse-box, and all 
 
 dung, sawdust, fodder, litter, and other matter removed therefrom,
 
 THE CARRIAGE OF ANIMALS BY RAILWAY. 375 
 
 shall forthwith be well mixed with quicklime." (The Animals ^^-^g^' 
 Order, 1886, Part III., Chap. 18, Art. 103.) — — '~ 
 
 " Horse-Boxes, Guards' Vans, and other Vehicles. 
 
 " (1.) A horse-box or a guard's van or other railway vehicle (not 
 being a railway truck) if used for animals on a railway shall, on 
 every occasion after an animal is taken out of it, and before any 
 other animal, or any horse, ass, or mule is placed in it, be cleansed 
 and disinfected as follows : 
 
 " (i.) If the animal is accompanied by a declaration in WTiting 
 of the owner or consignee or his agent to the effect that 
 it is intended for exhibition or other special purpose 
 therein stated, and has not, to the best of his knowledge 
 and belief, been exposed to the infection of disease, the 
 vehicle shall be cleansed as follows : 
 
 " ((7) The floor of the vehicle, and all other parts there- 
 of with which the di'oppings of the animal have come in 
 contact, shall be scraped and swept, and the scrapings 
 and sweepings, and all dung, sawdust, fodder, litter, 
 and other matter shall be effectually removed therefrom : 
 and 
 
 " ij)) The sides of the vehicle, and all other parts 
 thereof with which the head or any discharge from the 
 mouth or nostrils of the animal has come in contact shall 
 be thoroughly washed with water by means of a sponge, 
 brush, or other instrument ; but 
 " (ii.) If the animal is not accompanied by such a declaration, 
 the vehicle shall be cleansed and disinfected as follows : 
 
 " (c) The floor of the vehicle, and all other parts 
 thereof with which the droppings of the animal have 
 come in contact, shall be scraped and swept, and the 
 scrapings and sweepings, and all dung, sawdust, fodder, 
 litter, and other matter shall be effectually removed from 
 the vehicle ; then
 
 376 THE LA W OF CARRIERS. 
 
 Artels' " *>'^'') "^^^ ^^^^ P^^^ ^^ ^^® vehicle shall be thoroughly 
 
 washed or scrubbed or scoured with water ; then 
 
 " {e) The same parts of the vehicle shall have applied 
 
 to them a coating of lime- wash. 
 
 '' (2.) The scrapings and sweepings of the vehicle, and all dung, 
 
 sawdust, fodder, litter, and other matter removed therefrom, shall 
 
 forthwith be well mixed with quicklime, and be effectually removed 
 
 from contact with animals." {IhicL, Art. 104.) 
 
 " Triichs. 
 " (1.) A railway truck, if used for animals on a railway, shall, on 
 every occasion after an animal is taken out of it, and before any 
 other animal, or any horse, ass, or mule, or any fodder or litter, or 
 anything intended to be used for or about animals, is placed in it, 
 be cleansed and disinfected as follows : 
 
 " (i.) The floor of the truck, and all other parts thereof with 
 which animals or their droppings have come in contact 
 shall be scraped and swept, and the scrapings and sweep- 
 ings, and all dung, sawdust, litter, and other matter shall 
 be effectually removed therefrom ; then 
 " (ii.) The same parts of the truck shall be thoroughly washed 
 
 or scrubbed or scoured with water ; then 
 " (iii.) The same parts of the truck shall have applied to them 
 
 a coating of lime-wash. 
 " 2. The scrapings and sweepings of the truck, and all dung, 
 sawdust, litter, and other matter removed therefrom shall forth- 
 with be well mixed with quicklime, and be effectually removed from 
 contact with animals." {Ibid., Art. 105.) 
 
 " Vans. 
 
 " (1.) A van, if used for containing animals, horses, asses, or 
 mules while carried on a railway, shall, on every occasion after a 
 diseased or suspected animal, horse, ass, or mule is taken out of it, 
 and as soon as practicable, and before any other animal, horse, ass, 
 or mule is placed in it, be cleansed and disinfected as follows : 
 
 " (i.) The floor of the van, and all other parts thereof with which 
 
 I
 
 THE CARRIAGE OF AXHIALS BY RAILWAY. 377 
 
 animals, horses, asses, or mules, or their droppings have Ch. xvi. 
 
 come in contact shall he scraped and swept, and the '- 
 
 scrapings and sweepings, and all dung, sawdust, litter, and 
 
 other matter shall he effectually removed therefrom ; then 
 
 " (ii.) The same parts of the van shall he thoroughly washed or 
 
 scruhhed or scoured with water ; then 
 " (iii.) The same parts of the van shall have applied to them a 
 
 coating of lime-wash. 
 " 2. The scrapings and sweepings of the van, and all dung, 
 sawdust, litter, and other matter removed therefrom shall foiihwith 
 be well mixed with quicklime, and he effectually removed from 
 contact with animals." (The Animals Order, 1886, Part III. 
 Chap. 18, Art. 106.) 
 
 '^Moveable Gangicays and other Apparatus. 
 " (1.) A moveable gangway or passage-way, cage, or other 
 apparatus, used or intended for the loading or unloading of 
 animals on or from a railway truck, or other railway vehicle, or 
 otherwise used in connection with the transit of animals on a 
 railway, shall, as soon as practicable after being so used, be 
 cleansed as follows : 
 
 " (i.) The gangway or apparatus shall be scraped and swept, and 
 all dung, litter, and other matter shall be effectually 
 removed therefrom ; then 
 " (ii.) The gangway or apparatus shall bo thoroughly w\ashed or 
 
 scrubbed or scoured with water. 
 " (2.) The scrapings and sweepings of the gangway or apparatus, 
 and all dung, litter, and other matter removed therefrom shall 
 forthwith be well mixed with quicklime, and be effectually 
 removed from contact -with animals." {Ibid., Art. 107.) 
 
 " Pens. 
 
 " (1.) Every pen or other place being in, about, near, or on a 
 
 station, building, or land of a railway company, and used or 
 
 intended to be used by or by permission of a railway company, or 
 
 otherwise, for the reception or keeping of animals before, after, or
 
 378 THE LAW OF CARRIERS. 
 
 Ch. XVI. in course of their transit by railway, shall be cleansed and dis- 
 
 Art 285 
 
 infected, either on each day on which it is used and after it has 
 
 been used, or at some time not later than twelve o'clock at noon of 
 the next following day, unless the following day is Sunday, and 
 then of the Monday following, and in either case before it is again 
 used. 
 
 " (2.) Every such pen or other place shall be cleansed and dis- 
 infected as follows : 
 
 " (i.) All parts of the pen or other place with which animals or 
 their droppings have come in contact shall be scraped 
 and swept, and the scrapings and sweepings, and all 
 dung, sawdust, litter, and other matter shall be effectually 
 removed therefrom : then 
 " (ii.) The same parts of the pen or other place shall be thoroughly 
 
 washed or scrubbed or scoured with water : then 
 " (iii.) The same parts of the pen or other place shall have 
 
 applied to them a coating of lime-wash. 
 " (3.) The scrapings and sweepings of the pen or other place, 
 and all dung, sawdust, litter, and other matter removed there- 
 from shall forthwith be well mixed with quicklime, and be 
 effectually removed from contact with animals." {Ibid., Art. 
 108.) 
 
 Where a " cattle plague order " directed that " every carriage 
 truck required to be cleansed and disinfected should be cleansed 
 and disinfected once in every twenty-four hoiu'S during the time 
 when it is used for any animal ; " and by a clause in their special 
 Act, the railway company's maximum rate for the carriage of 
 animals included every expense incidental to conveyance, " except 
 for extraordinary services performed by the company, in respect of 
 which they might make a reasonable extra charge," it was held 
 that the railway company could not charge the owner of a cow 
 which they had carried for him mth the cost of cleansing the 
 truck, as such cleansing was not a service performed for the owner 
 within the meaning of the special Act. {Cox v. Great Eastern Ry. 
 Co., L. E. 4 C. P. 181 ; 38 L. J. C. P. 151.)
 
 THE CARRIAGE OF ANIMALS BY RAILWAY. 379 
 
 By an Order in Council made under the Contagious Diseases 
 (Animals) Act, 1878, if an animal is moved in contravention of • 
 the regulations of any local authority, the person " causing, direct- 
 ing, or permitting," the movement shall be deemed guilty of an 
 offence against the Act. The local authority of the county of 
 Dorset having by regulations prohibited the movement of animals 
 into their district except under specified conditions, animals were 
 consigned to a place within the district, at through rates, and with 
 through bills from Cork via Bristol, and a specified route. The 
 Midland Eailway Company were no parties to the contract with the 
 consignor, but, in furtherance of the scheme of carriage, carried the 
 animals on their railway over a portion of the route to a point out- 
 side the county of Dorset, whence they were subsequently carried 
 into that county by another company. It was held that the Mid- 
 land Eailway Company were liable to be convicted of an offence 
 against the Act, as persons " causing, directing, or permitting," the 
 movement of the animals within the meaning of the Order in 
 Council; and that the justices of the county of Dorset had juris- 
 diction to convict. {Midland By. Co. v. Freeman, 12 Q. B. D. 629 ; 
 53 L. J. M. C. 79.) 
 
 286. Every railway company must make a provi- 
 sion (to the satisfaction of the Privy Council) of water 
 and food, or either of them, at such stations as the 
 Privy Council from time to time, by general or specific 
 description, direct, for animals carried, or about to be 
 or having been carried, on the railway of the company. 
 (The Contagions Diseases (Animals) Act, 1878, -11 & 42 
 Vict. c. 74, s. 33(1).) 
 The rest of the section is as follows : — 
 
 " (2.) The water and food so provided, or either of them, shall 
 be supplied to any such animal by the company carrying it, on the 
 request of the consignor, or of any person in charge thereof. 
 
 Ch. XVI. 
 Art. 285.
 
 380 THE LA W OF CARRIERS. 
 
 P" ^11' " i^-) -^^ regards water, if, in the case of any animal, sucli a 
 
 Art. 286. 
 
 request is not made, so that the animal remains without a supply 
 
 of water for twenty-four consecutive hours, the consignor and the 
 person in charge of the animal shall each be guilty of an offence 
 against this Act ; and it shall lie on the person charged to prove 
 such a request and the time within which the animal had a supply 
 of water. 
 
 " (4.) But the Privy Council may from time to time, if they 
 think fit, by order prescribe any other period, not less than twelve 
 hours, instead of the period of twenty-four hours aforesaid, gene- 
 rally, or in respect of any particular kind of animals. 
 
 " (5.) The company supplying water or food under this section 
 may make, in respect thereof, such reasonable charges (if any) as 
 the Privy Council by order approve, in addition to such charges as 
 they are for the time being authorized to make in respect of the 
 carriage of animals. The amount of those additional charges 
 accrued due in respect of any animal shall be a debt from the con- 
 signor and from the consignee thereof to the company, and shall 
 be recoverable by the company fi'om either of them, with costs, by 
 proceedings in any court of competent jurisdiction. The company 
 shall have a lien for the amount thereof on the animal in respect 
 whereof the same accrued due, and on any other animal at any 
 time consigned by or to the same consignor or consignee to be 
 carried by the company." 
 
 The Animals Order of 1886 provides (Part IV. Chap. 28, 
 Art. 127) for the water supply on railways as follows : — 
 
 " The railway companies working the railways named in the 
 Third Schedule shall make a provision of water, to the satisfaction 
 of the Privy Council, at each of the stations therein named, for 
 animals carried or about to be or having been carried on those 
 railways." The Third Schedule sets out the names of a large 
 number of stations in England, Wales, and Scotland. As to the 
 offence of omitting to make such a provision of water, see ante, 
 p. 370.
 
 THE CARRIAGE OF ANIMALS BY RAILWAY. 381 
 
 Ch. XVI. 
 Art. 287. 
 
 II. — Generally. 
 
 287. The liability of a railway company as com- 
 mon carriers of live animals is, in the absence of any 
 negligence, subject not only to the exemption of the 
 act of God or the Queen's enemies, but to the further 
 exemption of any act wholly attributable to the develop- 
 ment of a latent inherent vice in the animal itself, such 
 as its violence or want of temper. [Blower v. G. W. By. 
 Co., L. R. 7 C. P. 655 ; 41 L. J. C. P. 268 ; KendalU, 
 L. ^' 8. ^y. Bij. Co., L. p. 7 Ex. 373 ; 41 L. J. F.x. 184.) 
 
 Where, however, the vice is brought out by the 
 negligence or default of the railway company as 
 carriers, the liability attaches. {Wilson v. Lane. By. 
 Co., 30 L. J. C. P. 232; Gill v. M. iS. ^' L. By. Co., 
 L. R. 8 Q. B. 186 ; 42 L. J. Q. B. 89.) 
 
 The above cited case of Blower v, G. W. By. Co. decides that a 
 railway company are not Hable for the loss of an animal breaking 
 loose from the ordinary restraints by its own special violence. It 
 appeared that a bullock, one of a number of cattle delivered to a 
 railway company, was properly loaded into a proper truck by the 
 railway company. The truck was properly fastened and secured, but 
 in the course of its journey the bullock escaped from the truck and 
 was found lying dead on the railway. There was no negligence on 
 the part of the railway company, and the fact was that the escape 
 of the bullock was wholly attributable to the efforts and exertions 
 of the animal itself, and it was held that the company were not 
 liable for the loss of the animal. 
 
 In dehvering judgment Willes, J., said: " The question appears 
 to be whether the special liability of carriers as to goods does attach 
 in the case of Hve animals. That question has been considered before, 
 and the difficulty in determining it called forth the opinions against
 
 a82 
 
 THE LA W OF CARRIERS, 
 
 Ch. XVI. tlieii- liability of Martin, B., and of the other judges, to the contrary 
 
 '■ effect. The controversy may in reality be only one of words. The 
 
 question maybe determined on the facts and merits, on the distinction 
 between the acts of animals of an extraordinary character, by reason 
 of a vice inherent in them, or of a disposition producing frenzy or 
 unruly conduct. There may be non-liability in such cases, and 
 yet lia,bility for accidents arising from ordinary inherent qualities. 
 I adopt that distinction for the purposes of the decision in this 
 case. It seems to me to be but one of words. It matters not 
 w^hether we say that a person carrying goods subject to an exemp- 
 tion from liability for an accident arising from the extraordinary 
 development of the proper vice of an animal, carries as a common 
 carrier with an exemption beyond the act of Glod or the Queen's 
 enemies, or does not carry as a common carrier at all. I should 
 say the defendants are common carriers, and are liable for the safe 
 delivery of live animals as well as with respect to all other goods ; 
 but that there is this exception, resting upon the common sense of 
 mankind, viz., with regard to any accident which occurs by reason 
 of the proper vice of the thing itself, that is to say, by reason of 
 its nature which may lead to its destruction. That proper vice 
 does not mean a moral vice of the thing itself or its owner. It is 
 something naturally inherent in the thing which by its natural 
 development leads to the destruction of the thing. If such exists 
 in the thing, and leads to its destruction, it is not a liability in- 
 volved in the contract. ... It is obvious, therefore, that the key 
 is given only to treat the carrier as an insm'er, and not to refer his 
 liability to the ground of negligence. Thus we find the insurer is 
 not liable for damage arising from the proper vice of the thing, and 
 that exemption has been extended to carriers." 
 
 In Kendall v. L. 8^' S. W. By. Co. {ante, p. 381), a saddled horse 
 was placed by the railway company's servants in a proper horse-box 
 in the usual manner. The saddle was left on the horse according 
 to the usual custom in such cases, with the stirrups hanging down. 
 At the end of the journey the horse was found to be injured in the 
 forearm and fetlock. The horse was proved to be free from vice.
 
 THE CARRIAGE OF ANIMALS BY RAILWAY. 383 
 
 and nothing unusual occui'red to the train during the journey, cii. xvi. 
 
 . . . . Art 287 
 
 Bramwell, B., said, " There is no doubt in this case that the horse ! L 
 
 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 other 
 cause than its inherent propensities — its ' proper vice,' — that is to 
 say, from fright or temper, or struggling to keep its logs, the defen- 
 dants are not liable. But if it so hurt itself from the defendants' 
 negligence, or from any misfortune happening to the train, though 
 not through any negligence of the defendants, as for instance, from 
 the horse-bos leaving the line owing to some obstruction mali- 
 ciously put on it, then the defendants would as insurers be liable." 
 
 In that case, as in Blowers v. G. W. Ry. Co., the animals were 
 carried under a special contract, made in accordance with sect. 7 of 
 the Eailway and Canal Traffic Act, 1854, but no question arose as 
 to the reasonableness of the contract. 
 
 As stated by Willes, J., in the above judgment in Blower'' s Case 
 (roife, p. 381), it was formerly doubted whether the common law 
 liability of railway companies as carriers extended to live stock 
 conveyed by them. (See Yoric, Sfc. Rij. Co. v. Crisj) and Thompson, 
 23 L. J. C. P. 125 ; Harrison v. L. B. c^ >S'. C. By. Co., 31 L. J. 
 Q. B. 113; 2B. &S. 122.) 
 
 In McManus v. Lane. 8f York. By. Co. (27 L. J. Ex. 201), 
 Martin, B., in delivering the judgment of the Com-t (Martin, 
 Channell, and Bramwell, BB.), said: "We are able to decide 
 this case without referring to the second point made by the defen- 
 dants, namely, the alleged distinction between the liability of 
 carriers as to the conveyance of horses and live stock, and ordinary 
 goods ; but should the question ever arise, we think the observa- 
 tion which fell from Baron Parke in Carr v. Lane. Sf Yorlc. By. 
 Co. (21 L. J. Ex. 263 ; 7 Ex. 707), is entitled to much considera- 
 tion." The observation of Baron Parke will be found ante, p. 365. 
 
 In a case decided in the Court of Session in 1870, the Lord 
 Justice Clerk (Moncreiff) said : " I do not think that in the 
 carriage of live animals a railway company are insurers to the 
 extent that, if the animal die in the course of the transit, the value
 
 384 THE LAW OF CARRIERS, 
 
 Ch. XVI. 01 loss must fall on them. I think that, as a general proposition, 
 
 cannot be maintained. There may be presumptions in a particular 
 
 case, throwing the onus of proof of the cause of death on the one 
 side or the other ; but I do not think that the general proposition 
 is well founded." {Paxton v. North British Rij. Co., 9 Sess. Ca. 
 (3rd Ser.) 50.) 
 
 A horse fastened in the usual way in a railway horse-box 
 struggled through the feeding-window (about twenty-five inches 
 square) into the adjoining compartment, and was thereby injured. 
 The Court of Session held that tlie accident was not of a kind that 
 the railway company were bound to have foreseen and to have 
 provided against, and that they were not liable in damages. 
 {Ralston v. Caledonian Ry. Co., 5 Sess. Ca. (4th Ser.) 671.) 
 
 A shipowner has been held not liable for the loss of a horse 
 caused partly by the excepted cause of a storm, and partly by the 
 inherent fright of the animal excited by the storm. {Nugent v. 
 Smith, ante. Art. 47.) 
 
 In an action against a railway company for injuries to cattle 
 proved to have been safely placed in their truck, but found to be 
 injured on arrival at their destination, the burden of proving 
 negligence is on the plaintiff. {Smith v. Midland Rij. Co., 57 
 L. T. 813.) 
 
 The following are decisions in the Courts of the United States 
 as to the conveyance of animals by railway. A railway company, 
 in the absence of sj)ecial contract, assumes the same liability in 
 transporting live stock as in transporting any other merchandise, 
 except so far as the viciousness or unruliness of particular animals, 
 or their liability to disease, &c., may interfere with the transporta- 
 tion of them ; and a railway company may limit their liability for 
 live stock transported by them, but may not exempt themselves 
 from liability for their own negligence. {McCoy v. K. 4' D. M. 
 Ry. Co., 44 Iowa, 424.) 
 
 Eailway companies are not liable as common carriers in regard 
 to live stock, but only bound to use reasonable care and diligence. 
 {Baher v. Louisville, 8^c. Ry. Co., 10 Lea. (Tenn.) 304.) 
 
 If a horse, while being carried in a train, sustains an injury, not 
 
 II
 
 THE CARRIAGE OF ANIMALS BY RAILWAY, 385 
 
 from any fault of the servants of the railway company, but from Ch. xvi. 
 •^ . . J i. J^ ^j.^ 287. 
 
 its own viciousness or restlessness, the company as a common 
 
 carrier is not responsible. {Illinois Central R;/. Co. v, Brehford, 
 13 111. App, 251 : and see cases in Angell, pp. 204 — 206.) 
 
 Failure to bed a car intended for the transportation of live stock 
 is not prima facie negligence on the part of the railway company. 
 
 Where the consignor of cattle contracts to supervise the loading 
 of his cattle, and accepts a car not provided w'ith bedding, he is 
 precluded from asserting a liability on the part of the railway 
 company for injuries caused by a failure to bed the car. {East 
 Tennessee, V. ^r. E>/. Co. v. Johnston, 75 Ala. 596 ; 22 A. & E. 
 Ey. Ca. 437.) 
 
 288. In order to render the railway company- 
 liable, the animals must be cluly delivered to tliem or 
 to someone entrusted by them to receive them. (See 
 ante, Art. 163.) Sucli delivery must be in conformity 
 with the known course of the railway company's busi- 
 ness, or it will not bind them. [Slim v. Gf. N. Rfj. Co.^ 
 14 C. B. 647.) 
 
 In that case the owner of cattle, in defiance of what he knew to 
 be the course of business of a railway company, permitted the 
 cattle to be dehvered to a servant of the company at one of their 
 stations, without getting an acknowledgment from the proper 
 officer that the cattle had been received for the purpose of being 
 carried, and it w^as held that the company were not responsible for 
 the non- delivery of the cattle. 
 
 28 9 . A railway company are bound to provide trucks 
 that are reasonably sufficient for the conve3^ance of cattle 
 under the ordinary incidents of a railway journey. 
 [Amies Y. Stevens, 1 Str. 128; Bloiver y. G. W.Fuj. Co., 
 L. R. 7 C. P. 655 ; 41 L. J. C. P. 268.) 
 In the latter case Willes, J., said, " but their liability in this re- 
 spect extends no further " than the obligation stated in this Article. 
 M. c c
 
 38G THE LAW OF CARRIERS. 
 
 Ch. XVI. In Amies v. StcvcuH it was said " No carrier is obliged to have a 
 
 new carriage for every journey. It is sufficient if he provides one 
 
 which without any extraordinary accident will probably perform 
 the journey." As to the liability of a railway company for loss 
 or damage happening from any defect in the vehicle, see ante, 
 Art. 178. 
 
 See Tatto-sal v. National Stcams/iip Co. (12 Q. B. D. 297 ; 53 
 L. J. Q. B. 332) as to the obligation to provide a reasonably fit 
 ship. 
 
 In Chippendale v. Lane. 8f Yorl: Ry. Co. (21 L. J. Q. B. 22) 
 the plaintiff saw his cattle put into a truck. Dming the journey 
 some of the cattle got alarmed and broke out of the truck and were 
 injured. The truck was so defectively constructed as to be unfit 
 and unsafe for the conveyance of cattle. It was held that there 
 was no implied stipulation that the truck should be fit for the con- 
 veyance of cattle. Erie, J., said, " 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 an 
 effort to escape and so injured themselves. This seems to me to be a 
 risk for which the company peculiarly said that they would not be 
 responsible." 
 
 In Pratt v. Ogdenshiirg Ry. Co. (102 Mass. 557), it was held 
 that the fact that a person delivering horses to a railway company 
 for transportation accepted a defective car, knowing it to be defec- 
 tive, did not exempt the railway company from liability for a loss 
 occasioned by the defect, without proof of a contract on his part to 
 assume the risk of such defect. 
 
 In Hawkins v. G. W. Ry. Co. (17 Mich. 57) the owner of 
 animals assumed " all risks of loss, injury, damage, and other con- 
 tingencies in loading, unloading, conveyance, and otherwise." It 
 was held that this did not include an injury caused by the bottom 
 of the car, in which the animals were, dropping out, and that the 
 carrier was liable. 
 
 290. A railway comjoany as carriers of cattle are
 
 THE CARniAGE OF ANIMALS BY ILilLU'AT. 387- 
 
 only bound to carry in a reasonable time under ordi- ^^^- ^^J- 
 nary circumstances (ante, Arts. 195 — 198), and are ~ " 
 
 not bound to use extraordinary efforts or incm- extra 
 expense in order to surmount obstructions caused by 
 tlie act of God ; as a fall of snow. (Briddon v. G. N. 
 Bij. Co., 28 L. J. Ex. 51. See ante, Cliap. V., and Arts. 
 174, 176.) 
 
 Pollock, C. B., in delivering judgment in that case, said: " The 
 question was substantially left to the jury whether, nnder all the 
 circumstances, the detention of these cattle was the result of the 
 snow, or was owing to the negligence or supineness of the com- 
 pany's servants. The jury have found upon that question in 
 favour of the defendants, and rightly. There is a distinction 
 between trains for passengers and for goods or cattle. The owners 
 of goods or cattle have no right to complain that extraordinary 
 efforts which are made 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 at 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 
 reasonable time under ordinary circumstances. If a snow-storm 
 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." 
 
 If the companj^ only profess to run trains for a certain class of 
 traffic at stated intervals, it will be within a reasonable time if 
 they carry in duo com-se according to their profession. Where a 
 company received cattle for conveyance, and it did not appear 
 that there were any ordinary cattle trains on the line, it was held 
 to be properly left to the jury to say what was a reasonable time 
 within which to convey the cattle, and therefore whether the 
 company were bound to send them by a special train. [Donolwe v. 
 L. (^ N. W. By. Co., 15 W. R. 792.) As to the usual custom of 
 
 cc2
 
 388 THE LAW OF CARRIERS. 
 
 Ch. XVI. a railway company to give a preference to the carriage of live 
 
 Aire. ^«/(/i 
 
 stock when unable to take both goods and cattle, see note to 
 
 Art. 156. 
 
 A falling off in condition of cattle in consequence of delay in 
 delivery, and from want of food and water, amounts to an 
 " injuiy " within the meaning of sect. 7 of the Railway and 
 Canal Traffic Act, 1854. [Alldcuj v. G. W. By. Co., 34 L. J. 
 Q. B. 5.) 
 
 291. The precise degree of care which it is the 
 duty of a railway company, as carriers, to use in de- 
 livering animals entrusted to them, must dej^end upon 
 and vary with the nature and condition of the animals 
 carried, and the ever-varying circumstances under 
 which the delivery takes place. Some animals require 
 much more care and management than others, accord- 
 ing to their nature, habits, and conditions. {^Per 
 Blackburn and Lush, JJ., in Gill v. Man. Sheff. ^ 
 Line. Ry. Co., L. R. 8 Q. B. 186 ; 42 L. J. Q. B. 89.) 
 
 " The line of conduct which the carrier should propose to himself 
 is that which a prudent owner would adopt if he were in the 
 carrier's place, and had to deal with the animals under the circum- 
 stances and subject to the condition in which the carrier is placed, 
 and under which he is called on to act." {Ibid.) 
 
 The facts of that case are as follows : — The plaintiff, having bought 
 a cow in the market, booked it at Doncaster to be carried by rail to 
 Sheffield, where he resided, he and his man travelling as passen- 
 gers by the same train. The train arrived at Sheffield between 
 six and seven in the evening of the same day, and the cattle trucks 
 were drawn up to their proper place, by the side of the cattle- 
 yard. The plaintiff, who had to go to the office and sign a receipt 
 for the cow before he was permitted to take her away, told the 
 porter not to let the cow out of the truck till he came back. On 
 
 I
 
 THE CARRIAGE OF ANIMALS BY RAILWAY. 389 
 
 his return from the office he observed that the porter was im- ^^- XVI. 
 
 ^ Art. 291. 
 
 fastening the truck. He called out to him, " Don t let the cow • 
 
 out ; if you do she'll go slap at you." The porter answered, 
 " She'll be all right when she gets out ; close the gate," and pro- 
 ceeded to unbolt the door. The plaintiff thereupon left the yard, 
 saying, " If you do that I shall go outside." The cow, being let 
 out, began to run about the yard, and towards a spot whence she 
 might have got on to the line. Being driven back by some persons 
 who were there, she ran up to a pig pen at the other end of the 
 yard, and leaped over the rails of the pen on to the line, where she 
 was run over and killed by a passing train. 
 
 Lush, J., in delivering the judgment of himself and Blackburn, 
 J., said : " The fair inference from these facts is, we think, that 
 the cow was, while in the truck, in so excited a state as to make it 
 dangerous to let her out until preparations had been made for 
 securing her, and taking her away in safety, which is what I infer 
 the plaintiff intended to do ; and that the warning given to the 
 porter, though it intimated only danger to himself as the conse- 
 quence of liberating the cow at that moment, must or ought to 
 have conveyed to his mind that other mischief might happen if the 
 animal were then set at large. It was contended for the defen- 
 dants that there was no e\-idence of negligence, and that at all 
 events the company were exonerated from liability by virtue of 
 the conditions printed on the cattle ticket, and by which, no doubt, 
 the plaintiff was bound. The condition relied on is in these 
 terms : — ' The Company give notice that they convey horses, 
 cattle, sheep, pigs, and other live stock in waggons, subject to the 
 following conditions : — 
 
 " ' First. That they will not be responsible for any loss or injury 
 to any horse, cattle, sheep, or other animal in the receiving, for- 
 warding, or delivering, if such damage be occasioned by the kick- 
 ing, plunging, or restiveness of the animal.' 
 
 " It cannot, we think, be contended that this condition dispenses 
 with the use of reasonable care on the part of the company in the 
 receiving, carrying, and delivering cattle, any more than the excep-
 
 390 
 
 THE LAW OF C AERIE RS. 
 
 Ch. XVI. 
 Art. 291. 
 
 tion of perils of the sea in a bill of lading relieves a shipowner 
 from the obligation to navigate with ordinary skill and care. The 
 exception goes to limit the liability, not the duty. It is the duty of 
 the carrier to do what he can by reasonable skill and care to avoid 
 all perils, including the excepted perils. If, notwithstanding such 
 skill and care, damage does occur from these perils, he is released 
 from liability ; but if his negligence has brought on the peril, the 
 damage is attributable to his breach of duty, and the exception 
 does not aid him. See PMIIIpH v. Clark (26 L. J. C. P. 167 ; 2 
 C. B. (N. S.) 156). ... If it had appeared in this case that the 
 exigencies of business required the porter to discharge the cattle 
 trucks immediately, or that the plaintiff meant to put upon the 
 company the charge of his cow, or to require the use of the truck 
 for an unreasonable time, the case would have borne a different 
 complexion ; but we infer that all which the plaintiff wanted was 
 time to enable him either to soothe and quiet the cow, so that he 
 might drive her home, or to secure her, and so prevent her doing 
 mischief either to herself or to persons who might come in her way, 
 and that the porter could, without loss or inconvenience to the 
 company or any other person, have kept the cow in the truck for 
 that reasonable time. This, we think, he was therefore bound to 
 do, and that as the mischief was attributable to his letting her at 
 large, the defendants are liable to pay the statutory value of the 
 cow, 15/." 
 
 292. It is the duty of a railway company to keep 
 tlieir station in a safe and proper state, and to deliver 
 the cattle in a fit and proper place. {Booth v. i\^. E. 
 RU, Co., L. E. 2 Ex. 178 ; 36 L. J. Ex. 83.) 
 
 In that case it was held that a railway company cannot relieve 
 themselves from this common law duty by inserting conditions in a 
 special contract for the carriage of cattle. The conditions in that 
 case are set out ante, p. 161. 
 
 In MoherU v. G. W. By. Co. (:27 L. J. C. P. 266), it was held 
 
 II
 
 THE CARRIAGE OF ANIMALB BY RAILWAY. 391 
 
 that there is no specific obligation on a railway company carrying Ch. XVI. 
 
 live stock to pro\'ide fences or guards at the station where the 
 
 animals are unloaded, so as to ensure their not straying on the 
 line. 
 
 The question whether such precautions are reasonable and 
 proper is one for a jury upon the question of negligence. {Booth 
 V. N. E. Rij. Co., supra.) 
 
 Cattle belonging to the plaintiff were driven at night along an 
 occupation road, which crossed a branch line of the defendants' 
 railway on a level. As they were passing over the crossing they 
 became frightened owing to a number of trucks being shunted by 
 the defendants in a negligent manner, and part of them escaped 
 from the control of their drivers. These were, on the following 
 morning, found dead or dying on the main line of the defendants' 
 railway, which they reached owing to defects in the fence of an 
 orchard and garden adjoining the railway. It was held that, as 
 defendants had been guilty of negligence which caused the drovers 
 to lose control over the cattle and caused the cattle to become 
 infuriated, it was no answer that if the fence of the garden had 
 not been defective the accident would not have happened ; and that 
 consequently the damages were not too remote. {Siieeshi/ v. Lane, 
 and York. By. Co., 1 Q. B. D. 42; 45 L. J. Q. B. (App.) 1.) 
 
 293. The responsibility of a railway company as 
 carriers of cattle, does not terminate until the owner 
 or consignee, by watchfulness, had, or might have 
 had, an opportunity to remove his cattle. (Redfield 
 on Railways; Shepherd v. Bristol 6f Exeter Ri/. Co.., 
 L. R. 3 Ex. 189; 37 L. J. Ex. 113.) 
 
 Many questions of great nicety have arisen as to whether a rail- 
 way company have delivered the cattle either actually or con- 
 structively. 
 
 In the case of Wise v. G. W. By. Co. (25 L. J. Ex. 258 ; 1 
 H. & N. 63), it was assumed to be the duty of the sender or the
 
 392 THE LAW OF CARRIERS. 
 
 Ch. XVI. consignee of the animals to provide for the reception of the cattle 
 
 Art. «»9o. IT • • T / 1 
 
 on their arrival at the station to which the railway company under- 
 took to carry them, and that the railway company were therefore 
 not liable for damage to cattle occasioned by there being no one to 
 receive them on their arrival. It is submitted that this case is in 
 conflict with the general principles a23plicable to carriers, (See 
 Art. 206.) 
 
 In that case a horse was delivered to the Great Western Railway 
 Company at N. to be conveyed to W. for the plaintiff. The 
 person who delivered the horse signed the following document : — 
 
 " Great Western Railway. 9.45 train. March 31, 1885. New- 
 bury to Windsor. Mr. Wise, of Eton, paid for one horse 12s. M. 
 Notice. — The directors will not be answerable for damage done to 
 any horses conveyed by this railway. I agree to abide by the 
 above notice. W. T. Johnson." 
 
 The horse reached the station at W. safely, but the company's 
 servants there either forgot or did not notice that the horse had 
 arrived, and on the plaintiff calling for it the nest day it was 
 discovered in a horse-box on a siding, and found to have sustained 
 serious injuries from cold and from remaining in a confined posi- 
 tion all night. It was held that the railway company was pro- 
 tected from liability under the Railway and Canal Traffic Act, 
 1854, s. 7, by the signed contract. 
 
 It seems that independently of such contract the railway 
 company would not have been responsible, the injury having been 
 the result of the plaintiff not being ready to receive the horse on 
 its arrival at W. The counsel for the plaintiff contended that 
 the horse, not having been met at the station, ought to have been 
 sent by the railway company to a livery stable. Whereupon 
 Bramwell, B., said, " The duty to send the horse to a livery stable can 
 hardly be put as a legal proposition. Suppose, instead of doing 
 that, a porter was told to hold the horse for an hour or two, there 
 would be no breach of duty. A more simple proposition for the 
 plaintiff to urge is, that it was the duty of the company to take 
 care that the horse was not injured ; for instance, that they had no 
 
 II
 
 THE CARRIAGE OF ANIMALS BY RAILWAY. 393 
 
 right to turn it loose.'' Pollock, 0. B., in delivering the judg- ^^' xvi. 
 
 Art. 293. 
 
 ment of the Court, said : " On referring to the facts of this case, 
 
 there can be no doubt whatever that the person who had hired the 
 horse was himself the real cause of all the mischief. The railway 
 company, to a certain extent, have been blameable, but the real 
 person who produced the mischief was the sender of the horse, who 
 sent him without any letter intimating that he was coming, and 
 without any groom or person to attend him during the journey ; 
 and one of the witnesses stated that it was the usual and proper 
 course for an intimation to be given and for somebody to come and 
 meet the horse at the end of the journey. If that had been done, 
 the horse would have been taken care of ; therefore, it appears to 
 us to be an attempt to throw upon the railway company (who are 
 certainly not free from blame in one sense) that which really was 
 occasioned by the person who sent the horse. But we think that 
 the mischief was within the notice, and that the horse being 
 accepted under a special contract, the railway company was not 
 liable for any damage that might be done to him while remaining 
 at the station till somebody came for him or made an application 
 for him. This must be considered as part of the risk of sending 
 him from one place to another." See the following Article. 
 
 Where the plaintiff delivered cattle, carriage prepaid, to the 
 defendant railway company for carriage on the terms of signed 
 conditions, whereby, in consideration of an alternative reduced rate, 
 it was agreed that the company were " 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 cattle were 
 carried ; but, on application made for them by the plaintiff, the 
 defendants, in consequence of their clerk having negligently 
 omitted to enter the cattle on the consignment note as " carriage 
 paid," refused to deliver them, and alleged that the carriage was 
 not paid. The cattle were kept exposed to the weather until the 
 next day, when, the mistake having been ascertained, they were
 
 394 
 
 THE LAW OF CARRIERS. 
 
 Ch. XVI. 
 Art. 293. 
 
 delivered. They were damaged by tlie exposure. In an action 
 for damages by reason of wrongful detention and negligence, it 
 was held that the withholding of the cattle, under a groundless 
 claim to retain them, at the end of the transit, was not " deten- 
 tion " within the conditions, and the company were therefore 
 liable. {Gordon v. G. W. E>j. Co., 8 Q. B. D. 44; 51 L. J. 
 Q. B. D. 58.) 
 
 Grrove J., in delivering judgment, said: " It was not necessary to 
 determine the question of ' wilful misconduct.' Mere honest for- 
 getfulness could not, I think, be construed to be ' wilful miscon- 
 duct.'" Lopes, J., said, "Upon the facts there appears to have 
 been a refusal by the company's servants to deliver 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 pa^mient of the 
 carriage of the cattle. They did not do so, but kept the cattle ; 
 and this, I think, amounted to wilful misconduct." 
 
 In Jarman v. G. W. By. Co. (22 W. R. 73), which was an 
 action for injmy done to cattle by negligent detention, the con- 
 tract was to carry at owner's risk, with the condition as to wilful 
 misconduct on the part of the company's servants. Blackburn, J., 
 said, " If the railway 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." 
 
 As to where the consignee of live stock, with the assent of the 
 railway company, is engaged for the convenience of both parties in 
 taking delivery in a particular way, and while so engaged is injured 
 by the negligence of the company's servants, see Art. 211. 
 
 294. A railway company at the end of the journey 
 may put a horse into a livery stable if no person come 
 to fetch him from the station, and the railway company 
 may recover the livery charges from the consignee.
 
 THE CARRIAGE OF ANIMALS BY RAILWAY. 395 
 
 {G. K Ri/. Co. y. Swaffield, L. R. 9 Ex. 132 ; 43 L. J. ch.xvi. 
 Ex. 89.) 
 
 lu that case the defendant sent a horse by railway directed to 
 himself at S. Station. On arrival of the horse at S. Station at 
 night there was no one to meet it, and the railway company, having 
 no accommodation at the station, sent the horse to a livery stable. 
 The defendant's servant soon after arrived and demanded the horse ; 
 he was referred to the livery stable keeper, who refused to deliver 
 the horse except on payment of charges, which were admitted to be 
 reasonable. On the next day the defendant came and demanded 
 the horse, and the station-master offered to pay the charges, and 
 let the defendant take away the horse ; but the defendant declined 
 and went away without the horse, which remained at the livery 
 stable. The railway company afterwards offered to deliver the 
 horse to the defendant at S. without payment of any charges, but 
 the defendant refused to receive it unless delivered at his farm and 
 with payment of a sum of money for his expenses and loss of time. 
 Some months after, the railway company paid the livery stable 
 keeper his charges and sent the horse to the defendant, who received 
 it. In an action brought to recover the amount of the charges, it 
 was held that the railway company acted reasonably in putting the 
 horse in the livery stable, and that the defendant, having refused 
 to take the horse, was liable to the railway company for all the 
 livery charges which they had paid. 
 
 Pollock, B., in delivering judgment, said : "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 consignor ; but in my opinion he is." 
 
 It has been held in America that a railway company, as a 
 common carrier of cattle, performs its duty when it has unloaded 
 the cattle at their place of destination, and that the company are 
 bound neither to deliver them at the residence of the consignee nor 
 to give him notice of their arrival. {Chicago <^ Eastern Illinois Hi/. 
 Co. V. Fraff, 13 111. 477.)
 
 ( 396 ) 
 
 Part IY. 
 
 THE CARRIAGE OF PASSENGERS' LUGGAGE BY RAILWAY. 
 
 CHAPTER XVII. 
 
 THE OBLIGATIONS OF A KAILWAY COMPANY WITH REFERENCE 
 TO THE CONVEYANCE OF THE LUGGAGE OF A PASSENGER. 
 
 Articles 
 
 1. Obligation to carry certain loeight of Luggage free of charge . . 295 
 
 2. Insurers of Passengers' Personal Luggage 296 
 
 3. What is Personal Luggage 297 
 
 4. Merchandise packed tvith Personal Luggage 298 
 
 5. Raihray Company may ivaive their Rights as to Amowit alloived 
 
 and nature of Luggage carried 299 
 
 6. Liability attaches though Luggage not addressed 300 
 
 7. Not bound to take Luggage by Excursion Trains 301 
 
 8. Person sending his Luggage icith his Servant 302 
 
 9. Liability for Servants Luggage when Ticket taken by blaster. . 303 
 
 10. Liability as to Luggage placed in the same Carriage with Pas- 
 
 senger 304 
 
 11. Commencement of Liability 305 
 
 12. Liability of Company for Luggage left loith a Porter for Cus- 
 
 tody and not for Transit 306 
 
 13. Luggage is ivithin the Carriers Act, 1830 307 
 
 14. Luggage is icithin Sect. 7 of the Railivay and Canal Traffic 
 
 Act, 1854 308 
 
 15. Liability during Sea Transit 309 
 
 16. Liability xchere Company undertake to carry beyond their own 
 
 Lilies 310 
 
 17. Carrxjing Company liable for loss, ^r. of Luggage carried .... 311 
 
 18. Termination of Liability 312 
 
 19. Unclaimed Luggage 313 
 
 20. Deposit in Left Luggage Office or " Cloak Room'' 314 
 
 II
 
 THE OARRIAQE OF A PASSENGER'S LUGGAGE BY RAILWAY. 397 
 
 295. A railway company, in virtue of the private ch. xvii. 
 
 Art. 295. 
 
 Act under wliich they are incorporated, are bound to 
 
 carry free of charge, and at tlieir own risk, a pas- 
 senger's ordinary luggage within the prescribed weight 
 properly packed. [Minister v. /S'. E. Rfj. Co.^ 27 L. J. 
 C. P. 308; 4C. B. (N. S.) 676.) 
 
 A railway company are not bound to carry merchandise delivered 
 to them by a passenger as bis personal luggage. (See j)(^^U 
 Art. 298.) 
 
 In Miiuater v. S. E. Rij. Co. {^upra), Cockburn, C. J., said: 
 " The plaintiff having sufSciently tied together the articles in 
 question desired that they sbould be labelled, and carried with 
 the rest of the passenger's luggage. It seems that the railway 
 porter, having communicated with the station master, declined 
 to label the articles and put them in the luggage- van. The 
 Act of Parliament renders it imperative on the company to 
 carry a certain weight of passenger's higgage. It enables the 
 company also to make regulations, and by one of these the company 
 say, that they will not be responsible for any article of passengers' 
 luggage that is not marked with their label and properly addressed. 
 The plaintiff knowing this, and that responsibility would fall on 
 the company if the articles were labelled, calls on them to label the 
 articles. 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. It appears that the company sought to relieve 
 themselves from such liability, first, by requiring all luggage to be 
 labelled, and then by giving directions to their servants not to 
 label articles of this description. This is what occurred. The 
 plaintiff desires the parcel to be labelled ; the porter will not do 
 so, nor will the station master ; he says, if it is to go at all, it 
 must go in the same carriage with the plaintiff ; the plaiutifi 
 objects to this, on the ground that the company are thereby 
 endeavouring to relieve themselves from their liability as common
 
 398 
 
 THE LA W OF GAREIERS. 
 
 Ch. XVII, 
 Art. 295. 
 
 carriers. This being the struggle between the two parties, the 
 porter threatens to take it to the lost luggage office, unless the 
 plaintiff will consent to take it with him in the carriage. The 
 plaintiff says, ' You may put it where you please, but I will not 
 take charge of it ; ' upon which it is left on the platform, and the 
 porter takes it to the lost luggage office. I think the porter was 
 not justified in doing so, and that the company are responsible for 
 his acts. The plaintiff did nothing to prevent the company from 
 putting the parcel in the carriage in which he was, or in any other 
 part of the train. All he said was that if they put it in the 
 carriage with him, they were not to construe that as a consent on 
 his part to their not being responsible for it. There was nothing, 
 therefore, to relieve the company from their liability as common 
 carriers, and, consequently, 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. Supposing, however, the company 
 were justified in refusing to carry, they were justified in taking 
 the parcel to the lost luggage office." 
 
 The London and North Western Eailway Company's Act of 
 1846 enacts as follows : — 
 
 " Every passenger travelling upon the railway in a first class 
 carriage may take with him his ordinary luggage not exceeding 
 112 lbs. in weight, and every passenger travelling in a second class 
 carriage may take with him his ordinary luggage not exceeding 
 60 lbs. in weight, and every passenger travelling in a thii'd class 
 carriage may take with him his ordinary luggage not exceeding 
 40 lbs. in weight, without any charge being made for the carriage." 
 
 There is a similar clause in the Great Western Railway Com- 
 pany's Act of 1847, and in the Grreat Northern Eailway Company's 
 Act of 1850. 
 
 The Great Eastern Eailway Company's Act of 1862, and 
 London, Brighton, and South Coast Eailway Company's Act of 
 1863, both allow 120 lbs. to first class passengers, 100 lbs. to 
 second, and 60 lbs. to third class.
 
 THE CARRIAGE OF A PASSENGER^ LUGGAGE BY RAILWAY. 399 
 
 Each passenger by a parliamentary train is entitled to take ch. XVII. 
 with him 56 lbs. weight of luggage, " not being merchandise or ^^' 
 other articles carried for hire or profit " without extra charge. 
 (The Cheap Trains Act, 1844, 7 & 8 Yict. c. 85, s. 6.) This 
 enables a husband and wife to take 112 lbs. of luggage between 
 them, though the personal effects of one of them may not exceed 
 a few pounds. {G. N. Bi/. Co. v. Shepherd, 21 L. J. Ex. 286.) 
 
 The Act 5 & 6 Vict. c. 55, first gave the Crown the right 
 to transmit military stores and baggage by railway, but made no 
 provision as to the price. This was amended by 7 & 8 Yict. c. '$>o. 
 These Acts are now repealed by 46 & 47 Yict. c. 34. 
 
 An officer on duty is entitled to take with him 112 lbs. of 
 "personal luggage" without extra charge, and a soldier, &c., on 
 duty 56 lbs. (46 & 47 Yict. c. 34, s. 6 ; ^qq post, p. 440.) 
 
 Although the special Acts of railway companies provide that 
 without extra charge it shall be lawful for every passenger by 
 railway to take with him ordinary luggage, yet a railway company 
 may run excursion trains for passengers only, without luggage. 
 {Riimsey v. N. E. By. Co., 32 L. J. C. V. 244; post. Art. 301.) 
 
 It will be noticed the railway companies have taken care in their 
 special Acts expressly to limit the right of the passenger to 
 " ordinary " luggage, which must be taken to mean the " personal " 
 luggage of the traveller. {Post, Arts. 296, 297.) 
 
 Where a railway company carried troops and theii- baggage, in 
 India, under a written contract with the Government, which pro- 
 vided for the due supply of suitable goods waggons, and for special 
 trains when required, and contained the following clause : " The 
 baggage shall remain in charge of a guard provided hy the troops, 
 the company accepting no responsibility," — it was held that this 
 clause did not exempt the company from responsibility for damage 
 caused by their own negligence. {Martin v. Gt. Indian Pen. Ry. 
 Co., 37 L. J. Ex. 27.) 
 
 In the recent special Acts of Tramway Companies the following 
 section has been inserted as to the conveyance of passengers' 
 luggage :— 
 
 " Every passenger travelling upon the tramway's may take with
 
 400 THE LAW OF CARRIERS, 
 
 Ch. XVII. ^ii^^ l^is personal luggage not exceeding 28 lbs. in weiglit witliout 
 •^^^' ^^^' any charge being made for the carriage thereof, provided that such 
 luggage be carried by hand and at the responsibility of the pas- 
 senger, and shall not occupy any part of the seat, nor be of a form 
 or description to annoy or inconvenience other passengers." 
 
 Where a railway company are justified in refusing to carry a 
 package, they may lawfully take it, if left on their premises, to 
 the lost property office, and charge their regular fee upon re- 
 delivery. {Munster v. 8. E. Ri/. Co., ante, p. 397.) 
 
 " From the usual course of business of common carriers, when 
 they carry a passenger, a contract is implied to carry also his 
 luggage. They are presumed to be compensated in the fare for 
 his transportation, and I can very well believe, well compensated, 
 because the amount of travel is greatly increased by the comfort 
 and convenience of carrying luggage, and would be lessened, if, 
 for his luggage, a passenger was required to pay freight. It is 
 curious to remark that the law takes more care of a man's luggage 
 than it does of his life and limbs ; for the former, the carrier is 
 liable as insurer against loss, except by the act of God and the 
 public enemies ; for the safety of the latter, he is bound only to 
 extraordinary care and diligence." {Per Nisbett, J., in Dibble v. 
 Broicn, 12 Geo. 217.) 
 
 296. A railway company are common carriers 
 of passengers' personal luggage, which, under the 
 statute under which they are incorporated, they 
 are bound to carry free of charge. {Macroiv v. 
 G. W. Ry. Co., L. K 6 Q. B. 612 ; 40 L. J. Q. B. 
 300 ; CoJien v. S. E. Ry. Co., 2 Ex. D. 253 ; 46 L. J. 
 Ex. 417.) This absolute liability may be modified 
 where the passenger himself takes charge of his 
 luGfsrasfe in such a manner as to raise an implied 
 condition that he shall himself take reasonable care. 
 {Talk?/ V. a. W. Ry. Co., L. R. 6 C. P. 44; 40 L. J. 
 C. P. 9 ; ^^05^, Art. 304.) But unless such a condition
 
 THE CARRIAGE OF A PASSENGERS LUGGAGE BY RAILWAY. 401 
 
 can be implied from the circumstances of the case, their c.^- ^3^- 
 
 -■■ ' Art. 296. 
 
 general liability as insurers will continue. {Bichards ~ 
 
 V. L. B. cy S. 0. B>j. Co., 7 C. B. 839 ; Le Couteur v. 
 L. cy S. W. By. Co., L. R. 1 Q. B. 54; 35 L. J. 
 Q. B. 40.) 
 
 The warranty or joromise of a railway company as 
 common carriers of the safety of a passenger's per- 
 sonal luggage is qualified by the excepted risks inci- 
 dent to the contract of a common carrier. (As to 
 what these risks are, see ante, Chapters V. and XI.) 
 
 A railway company are not responsible as common 
 carriers for luggage other than the personal luggage 
 of the passenger, and not packed so as to make its 
 nature obvious. [G. N. Bij. Co. v. Shepherd, post, Art. 
 298.) 
 
 The propositions stated in this Article must now be taken to be 
 the law, although there are some dicta to the effect that railway 
 companies are not insurers of a passenger's personal luggage. (See 
 per Pollock, C. B., in Stewart v. L. ^ N. W. Rij. Co., 33 L. J. Ex. 
 199 ; and per Willes, J., in Tcdieij v. G. IF. By. Co., L. E. G 
 C. P. 51.) 
 
 " It was contended in argument that a contract to carry passen- 
 gers' luggage was not a contract for the carriage of goods by a 
 common carrier. Cases were cited in which that very learned 
 Judge, Lord Holt, seemed to think that a coachman who carried 
 some luggage for a passenger in a coach was a mere gratuitous 
 bailee, and was not only not liable as a carrier, but not even to 
 take that degree of care which a bailee for hire must take. That 
 was attempted to be explained, and I think probably correctly, by 
 the particular modes of carriage which prevailed in Lord Holt's 
 time, and of which we have but little knowledge. However that 
 may be, I cannot have the least doubt that, when a passenger pays 
 
 M. 1) D
 
 402 THE LAW OF CARRIERS. 
 
 Ch. XVII. a certain sum for the conveyance of himself and his luggage, his 
 
 Art 2^fi 
 
 ' luggage is carried for reward just as much as if it had been sent 
 
 by a goods train. When the passenger has paid his fare he is 
 entitled to have his luggage conveyed as well as himself, and 
 although you may not be able to say how much of that fare is for 
 the conveyance of the passenger and how much for the luggage, it 
 does seem absurd to say that the company are gratuitous bailees ; 
 and since they are not so, they are necessarily liable for the loss of 
 the luggage by the carelessness of their servants. It is not neces- 
 sary to determine whether they are liable as common carriers, 
 though upon the authorities cited before us I think they are, but 
 whether that is so or not they are liable for loss by negligence." 
 {Per Mellish, L. J., in Cohen v. 8. E. Ry. Co., ante, p. 400.) 
 
 " The impossibility of travelling without the accompaniment of 
 a certain quantity of luggage for the personal comfort and con- 
 venience of the traveller has led from the earliest times to the 
 practice on the part of carriers of passengers for hire of carrying 
 as a matter of course a reasonable amount of luggage for the 
 accommodation of the passenger, and of considering the remunera- 
 tion for the carriage of such luggage as comprehended in the fare 
 paid for tlie conveyance of the passenger. Under the older system 
 of travelling by stage coaches, canal boats, or other vessels, the 
 amount of luggage to be thus carried free of charge was commonly 
 made part of the contract by express stipulation or notice from the 
 carrier. Under the modern system of railway conveyance, it is 
 fixed and regulated by the various Acts of Parliament under which 
 railways have been established. The provision fixing the amount 
 of luggage which the traveller shall be entitled to take wath him 
 free of charge has a twofold object, first, that of insuring to the 
 traveller the conveyance of a reasonable amount of luggage ; 
 secondly, that of protecting the carrier from all disjDute as to the 
 amount of luggage which the passenger may claim to have carried, 
 as well as entitling the former to a proper remuneration for the 
 carriage of luggage in excess of the quantity thus fixed by statute. 
 Besides thus fixing the quantum of luggage which the passenger 
 
 II
 
 THE CARRIAGE OF A RASSENQER'S LUOOAGE BY RAIL]]\iY. 403 
 
 stall be entitled to have carried free of charge, the Railway Acts ch. xvil, 
 have, in conformity with the practice of carriers under the old . 
 
 system, taken care expressly to limit the right of the passenger to 
 ordinary luggage, which must he taken to mean the personal 
 I'lggage of the traveller. The conveyance of the personal luggago 
 of the traveller being obviously for his convenience, and therefore 
 accessory, as it were, to his conveyance, it may be thought that 
 the liability of the carrier in respect of the safe conveyance of 
 passengers' luggage should have been co-extensive onlj^ with the 
 liability in respect of the safety of the passenger. The law, how- 
 ever, is now too firmly settled to admit of being shaken, that the 
 liability of common carriers in respect of articles carried as passen- 
 gers' luggage is that of carriers of goods as distinguished from 
 that of carriers of passengers, unless indeed where the passenger 
 himself takes the personal charge of them, as in Tallcy v. G. W. 
 By. Co. (40 L. J. C. P. 90), in which case other considerations 
 occm'." {Per Cockburn, C. J., in Macrow v. G. W. Ry. Co., ante, 
 p. 400.) 
 
 "Where a railway company made a bye-law to the effect that 
 they " would not be responsible for the care of luggage, unless 
 booked and paid for," it was held that the bye-law was null and 
 void. {WUVmm v. G. W. Ry. Co., 10 Ex. 115; Mimster v. S. E. 
 Ry. Co., 4 C. B. (N. S.) 698 ; G. IF. Ry. Co. v. Goodman, 21 
 L. J. C. P. 197.) 
 
 The loss of the luggage will not entitle the passenger to rescind 
 the contract and recover back the fare. [Ric/ianh v. L. B. c^- S. C. 
 Ry. Co., 7 C. B. 839.) 
 
 297. Whatever the passenger takes with him for 
 his personal use or convenience, according to the 
 habits or wants of the particular class to which he 
 belongs, either with reference to the immediate neces- 
 sities or to the ultimate purpose of the journey, is con- 
 sidered to be personal luggage. (^Macrow v. G. W. 
 
 i)d2
 
 404 
 
 THE LAW OF CABBIEBS. 
 
 Ch. XVII. 
 Art. 297. 
 
 %. Co., L. E. 6 Q. B. 618; 40 L. J. Q. B. 300.) 
 Personal luggage docs not extend to any articles 
 carried for the purposes of liire or profit, even though 
 such articles would otherwise fall within the term 
 ''ordinary" or ''personal" luggage. (Per Lush, J., 
 in Iludston v. Midland Ry. Co., L. R. 4 Q. B. 366 ; 38 
 L. J. Q. B. 213; and j?er Parke, B., in Shepherd n. G. 
 N. Ry. Co., 21 L. J. Ex. 286.) 
 
 " Under the term ' higgage ' may be comprised his clothing and 
 everything required for his personal convenience, and perhaps even 
 a small present, had he had such with him, or a book on the 
 journey might also be included in that term ; but they were cer- 
 tainly not bound to carry merchandize and materials intended for 
 trade, and to be sold at a profit." (Parke, B., in Shepherd v. G. 
 N. By. Co., supra.) 
 
 Documents and bank notes for use in certain causes in which the 
 solicitor was engaged as a solicitor, and which he took in his port- 
 manteau when going by railway to attend the county court, were 
 held not to be personal or ordinary luggage. {Phe/2)s v. L. 8f iV. 
 TF. i?y. Co., 34 L. J. C. P. 259.) Byles, J., said: "I should doubt 
 if a man's own title deeds and securities can be called ' ordinary 
 luggage,' but when they belong to another person the case is still 
 clearer." 
 
 Pencil sketches of an artist, placed in his portmanteau, do not 
 form part of his ordinary luggage, so as to entitle them to be con- 
 veyed free of charge. {If //f ton v. MicUaml Ey. Co., 28 L. J. Ex. 
 385.) 
 
 A passenger cannot claim to have carried as ordinary personal 
 luggage articles of such a size and shape as that they cannot be 
 reasonably carried as luggage. {Hudston v. Midland Ry. Co., L. R. 
 4 Q. B. 366 ; 38 L. J. U. B. 213.) In that case the plaintiff 
 claimed to have carried as luggage a child's toy called a spring 
 horse, 78 lbs. in weight, and 44 inches in length, standing on a 
 flat surface.
 
 THE CARRIAGE OF A PASSENGER'S LUGGAGE BY RAILWAY. 405 
 
 " In Ruchton v. The Midland Eu. Co., the plaintiff had tendered Ch. xvii. 
 
 Art. 297. 
 
 to the company a spring horse which he had purchased and was '. L 
 
 taking home to his children as part of his luggage. The company- 
 refused to receive it unless he paid for the carriage, whereupon he 
 paid the charge, and afterwards brought an action to recover back 
 the sum he had so paid. My brother Lush in that case observes : 
 * The only definition I can think of, and one which is sufficient for 
 this case, is, that the words of the statute describe a class of articles 
 which are ordinarily or usually carried by travellers as their 
 luggage.' He then proceeds to hold that the dimensions and size 
 of this spring horse took it out of this definition. Considering the 
 way in which the point arose, namely, on the refusal of the com- 
 pany to accept and carry it gratis, it was certainly relevant to 
 inquire whether the article was such as might be reasonably 
 rejected by the company on account of its size and shape, though 
 it did not exceed the statutable weight." (Cockburn, C. J., in 
 MacroicY. G. W. Ry. Co., ante,]). 400. And seeBrufi/Y. G. Trunk 
 Ml/. Co. of Canada, 31 Upper Canada R. 66.) 
 
 " This would include, not only all articles of apparel, whether 
 for use or ornament — leaving the carrier herein to the protection of 
 the Carriers Act, to which, being held to be liable in respect of 
 passenger's luggage as a carrier of goods, he undoubtedly becomes 
 entitled — but also the gun-case or the fishing apparatus of the 
 sportsman, the easel of the artist on a sketching torn*, or the books 
 of the student, and other articles of an analogous character, the use 
 of which is personal to the traveller, and the taking of which has 
 arisen from the fact of his journeying. On the other hand, the 
 term ' ordinary luggage,' being thus confined to that which is 
 personal to the passenger, and carried for his use and convenience, 
 it follows that what is carried for the purpose of business, such as 
 merchandize or the like, or for larger or ulterior purposes, such as 
 articles of furniture or household goods, would not come within the 
 description of ordinary luggage, unless accepted as such by the 
 carrier. The articles as to which the question in the present case 
 arises consisted of bedding. Now, though we are far from saying
 
 406 
 
 THE LAW OF CARRIERS. 
 
 Ch. XVII. that a pair of sheets or the like, taken by a passenger for his use 
 
 . '. 1 on a jom'ney, might not fairly he considered as personal luggage, 
 
 it appears to iis 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." (Cockburn, C. J., in Macrow v. G. W. By. Co.., ante, 
 p. 400.) 
 
 298. A railway company are not liable for the loss 
 of merchandize delivered to them by a passenger as his 
 personal luggage to be carried free, unless the com- 
 pany, having an opportunity to know the contents of 
 the package, see j&t to accept it as luggage. (^Caliill 
 V. L. 4- N. W. By. Co., 31 L. J. C. P. 271; 
 Belfast and Balhjmena By. Co, v. Keys.^ 9 H. L. Ca. 
 
 In the former of these two cases it was held that the mere fact that 
 a package looks like merchandise, and is marked " glass," is not 
 enough to fix the company with responsibility. Cockburn, C. J., 
 said, "It is true it had a semblance as of merchandize, and was 
 marked 'glass.' But persons often take with them very curious 
 packages, and mark them ' glass,' to protect them from injury. 
 Probably the porter never thought about it at all." 
 
 In Shepherd v. G. N. By. Co. (21 L. J. Ex. 286), it was held 
 that if the merchandize be so packed as to be obviously merchan- 
 dize to the eye, the railway company will be responsible for the 
 loss in the absence of any bargain to the contrary. 
 
 Parke, B., in dehvering judgment, said : " Had the railway 
 company, with full notice of what the passenger was carrying, 
 chosen to treat it as luggage, they would have been responsible for 
 the loss ; but their duty as common carriers was only to carry 
 luggage, and not merchandize or articles wholly disconnected with 
 personal luggage. If they had had notice, they might have
 
 THE CAREIAGE OF A PASSEXGER'S LUGGAGE BY BAILWAY. 407 
 
 refused to carry it without an additional pajnnent, but they had Ch. xvil. 
 no opportunity of acquiring this knowledge in this case. Whether _i-___l 
 this was done with any fraudulent intention it is not material to 
 inquire, for if without any fraud the passenger has so conducted 
 himself that the company were not apprised of the nature of what 
 he was carrying, it is the same in effect as if a fraud had been 
 intended." And see Belfast and Ballymena Ry. Co. v. Keij8 (9 
 H. L. Ca. ^hO))^ where it was held that it makes no difference that 
 the passenger was ignorant of the rule that nothing but personal 
 effects are carried free of charge. 
 
 The law as stated in this Article is the same in the United 
 States. (See Eedfield's Law of Eailways (3rd ed.), pp. 150 — 
 152.) 
 
 The mere fact that the passenger pays for the carriage of a 
 trunk because it weighs more than is allowed to go free, does not 
 entitle the passenger to carry merchandize. {Cincinnati Ri/. Co. v. 
 Marcus, 38 111. 219.) 
 
 If a passenger, with the intent to avoid paying freight, takes 
 merchandize into a passenger carriage on a raihvay, he cannot hold 
 the railway company liable as a common carrier, although on the 
 journey the merchandize, at the request of a servant of the com- 
 pany, is placed in the luggage van and is lost. [Belfast, S^-c. Ry. 
 Co. V. Keys, supra.) 
 
 299. If a railway company or other carrier of 
 passengers permit a passeng-er, either on payment, or 
 without payment of an extra charge, to take more 
 than the regulated quantity of luggage, or knowingly 
 permit him to take, as personal luggage, articles that 
 would not come under that denomination, they will 
 be liable for their loss, though not arising from their 
 negligence. (Fcr Cockburn, C. J., in Macrow v. 
 G. W. Ry. Co., L. R. G Q. 13. 612, 617. Fer Parke,
 
 408 THE LAW OF CARRIERS. 
 
 ch.xvii. B., Ill a. N. By. Co. v. Shejolierd, 21 L. J. Ex. 286. 
 .^^^1^ And see CaUll v. L. cV N. W. By. Co., 31 L. J. C. P. 
 271.) 
 
 " If a railway company, who, by their Act of Parliament, are 
 hound, or by their regulations profess, to carry personal luggage 
 free, choose to take as ordinary luggage that which they know to 
 be merchandize, I quite agree that it is not competent to them, in 
 the event of a loss, to claim exemption from liability on the ground 
 that the article consists of merchandize and not of ordinary 
 luggage." {Fcr Cockbui^n, C. J., in Caldll v. L. ^ N. W. By. 
 Co. {supra).) 
 
 300. A regulation of a railway company that they 
 will not be resj^onsible for any passenger's luggage 
 unless fully and properly addressed with the name 
 and destination of the owner, is not a just and reason- 
 able condition wdtliin section 7 of the Railway and 
 Canal Traffic Act, 1854. {Cutler v. North London By. 
 Co., 19 Q. B. D. 64; 7;o5^, Art. 308.) 
 
 When luggage has been given into the custody of 
 the railway comj)any's servants for transit, the pas- 
 senger is not bound to inquire after it till it reaches 
 its destination ; and though it would seem that the 
 company may refuse to carry luggage which has no 
 address upon it, yet, having once accepted it for con- 
 veyance, they cannot afterwards plead the want of the 
 address as an excuse for its having gone astray. 
 [Cain])l)ell Y . Caledonian By. Co., 14 Sess. Ca. (2nd Ser.), 
 806.) 
 
 In that case the plaintiff took a ticket at Glasgow for Edin- 
 burgh, and gave his portmanteau into the custody of a railway 
 porter, informing him of its destination. The portmanteau was
 
 THE CABRIAGE OF A PASSENGER'S LUGGAGE BY RAILWAY. 409 
 
 put into the van at Glasgow, but no further trace of it was ever Ch. xvii. 
 
 Art 'lOO 
 
 got. There was no address upon it, and the passenger did not '■ '- 
 
 inquire after it on changing carriages at Carstairs, where also the 
 luggage is shifted from one train to another. The company were 
 held liable for the loss, Lord Cockburn saying : " The company 
 took the luggage along with the man, and the mere act of taking 
 it implied an obligation to re-deliver. It was said that nothing 
 was paid for the luggage, but this is a mistake. There was no 
 separate payment for it, but the fare for the passenger included 
 the conveyance of his luggage as well as himself. The fact of 
 there being no address does not alter the company's responsibility. 
 They might have refused to take it without an address; but, 
 having taken it, they cannot now raise that objection. It makes 
 no difference that there was carelessness on the part of the pursuer ; 
 and, in like manner, the assertion that he was intoxicated and 
 asleep, if it had been proved, would have been nothing to the pui'- 
 pose. It was not unnatural that a man should be asleep at that 
 hour of the evening ; but it was not his duty, but that of the com- 
 pany, to look to the luggage." 
 
 301. Although a railway company are bound, by 
 the terms of their special Act of incorporation, to 
 permit passengers to take a certain amount of luggage 
 free of charge, and as a general rule are not entitled 
 to enforce any regulation at variance with such obliga- 
 tion, they are not, on that account, precluded from 
 making special stipulations with regard to the carriage 
 of luggage by cheap or excursion trains. [Rumsc>/ v. 
 N. E. Rij. Co., 32 L. J. C. P. 244 ; U C. B. (N. S.) 
 641.) 
 
 In that case Williams, J., said: "The question is whether the 
 terms on which these excursion tickets are issued by the company 
 can be enforced, so far as relates to the condition that passengers
 
 410 I^SE LA W OF CARRIERS. 
 
 Ch. XVII. travelling with such tickets shall not be allowed to take luggage. 
 
 ' L I see nothing whatever to prevent it in the section of the Act of 
 
 Parliament which is relied on. The defendants say that the 
 bargain was that the plaintiff should give up his ordinary right of 
 taking luggage as a first class passenger on condition of getting a 
 cheaper ticket. There is nothing illegal in that." The section 
 of the Act referred to by the learned judge was in the usual form. 
 (See ante, p. 398.) 
 
 In the bills or other advertisements regarding these trains, there 
 is commonly inserted a notice, either that no luggage at all will be 
 allowed, or that luggage will only be carried by the company upon 
 payment ; or, lastly, that a certain amount will be carried free of 
 charge but only at the passenger's own risk. 
 
 The holder of a railway excursion ticket, expressed to be " issued 
 subject to the conditions contained in the company's time and 
 excursion bills," one of which conditions was, that " luggage under 
 60 lb." should be carried " free, at passenger's own risk," was held 
 bound, in the case of Stewart y.L. ^' ^\ W. Ey. Co. (33 L. J. Ex. 
 199 ; 3 H, & 0. 135) by the terms of this special contract. 
 
 This condition was not signed by the passenger but was never- 
 theless held binding upon him. This case is in effect overruled by 
 Cohen v. S. E. Ry. Co., iJost, Art. 308. 
 
 302. The owner of luggage who allows his servant 
 to carry it by train as his own personal luggage, the 
 servant taking and paying for his ticket, and the owner 
 travelling by a later train, cannot maintain an action 
 against the company for the loss of such luggage. 
 {Becher v. G. E, Ry. Co.^ L. R. 5 Q. B. 241 ; 39 L. J. 
 Q. B. 122.) 
 
 MeUor, J., said, " There can be no doubt but that the port- 
 manteau was received by the company as the luggage of the 
 servant, and that he was regarded by them as an ordinary 
 passenger. It is unnecessary to say that the case where a man
 
 THE CARRIAGE OF A PASSENGER'S LUGGAGE BY RAILWAY. 
 
 411 
 
 says ' this is not my luggage, but my master's/ may give rise to Ch. xvil. 
 
 •¥- -r • mi Art. o02. 
 
 different considerations." And Lush, J., said, " The company are 
 
 in this position : they are hound by law to receive a certain 
 quantity of the luggage of each passenger by their railway. But 
 if they had known that the luggage was not the luggage of the 
 servant, they would have known that they were not bound to 
 receive it, and they would probably have refused it. There is no 
 evidence of any duty on the part of the company except that which 
 is founded on their contract, and the only person with whom they 
 contracted was the servant." 
 
 803. As the duty thrown upon the carrier by 
 receiving the passenger and his luggage to be carried 
 for reward, though arising out of contract, is indepen- 
 dent of the question by whom the reward is paid, a 
 railway company are liable for the loss of his luggage 
 to a servant whose fare has been paid by his master. 
 (Marshall v. Yo)'k, JVewcastle, and Berwick Ry. Co., 11 
 C. B. 655; 21 L. J. C. P. 34.) 
 
 304. A railway company accepting passengers' 
 luggage to be carried in a carriage with the passenger 
 enter into a contract as common carriers, subject to 
 this modification, that in respect of his interference 
 with their exclusive control of his luggage, the com- 
 pany are not liable for any loss or injury occurring 
 during its transit, to which the act or default of the 
 passenger has been contributory. [Bunch v. G. W. Rjj. 
 Co., 13 App. Cas. 31 ; 57 L. J. Q. B. D. (H. L.) 301.) 
 
 Until this case was decided in the House of Lords the ruling 
 authority upon this point was Berghcim v. G. E. Ey. Co. (3 C. P. 
 D. 221 ; 47 L. J. Q. B. (App.) 318). In that case it was decided 
 by the Court of Appeal that a railway company are not insurers of
 
 412 THE LA W OF CARRIERS. 
 
 Ch. XVII. that portion of a passenger's luggage whicli is, at his request or 
 
 '. L with his consent, placed in the same carriage in which he travels 
 
 or is about to travel ; but they were liable for loss or injury to it 
 caused by their negligence. 
 
 The Law Lords in Bunch'' s Case, however, preferred the principle 
 which was adopted in JRicIuirds v. L. B. Sf S. C. Rij. Co. (7 C. B. 
 839) ; Butcher v. L. ^' 8. W. Rij. Co. (16 0. B. 13) ; and Talley v. 
 G. W. By. Co. (L. E. 6 0. P. 44 ; 40 L. J. C. P. 9) ; and the 
 views expressed in those cases by Lord Truro, Jervis, C, J., 
 Williams, J., Crowder, J., Willes, J., Keating, J., and Montague 
 Smith, J. 
 
 In Talleifs Case it was held that if the passenger retain his 
 luggage under his own personal care and control he is bound 
 himself to take reasonable care of it, and he cannot charge the 
 carrier with a loss caused by his own negligence. 
 
 That was an action by a passenger for not safely carrying 
 his portmanteau which formed his luggage, and the evidence 
 was that the plaintiff had the portmanteau put into the same 
 carriage with him, and that in the course of the journey he got 
 out for refreshment at Swindon, where the train stopped ten 
 minutes, and upon returning failed to find his carriage, and com- 
 pleted his journey to London in another carriage in the same train. 
 He afterwards obtained his portmanteau, but cut open, and minus 
 a portion of its contents, which had been stolen by some one in the 
 carriage after the plaintiff had left it. 
 
 The jury negatived negligence on the part of the railway com- 
 pany's servants, and found that the plaintiff had by his negligence 
 contributed to the loss. It was held that the general liability of 
 the railway company was, under the circumstances, modified by the 
 implied condition that the plaintiff should use reasonable care, and 
 that as the loss was occasioned by his neglect to do so, and would 
 not have happened without such neglect, the company were not 
 liable. 
 
 Willes, J., in delivering the judgment of the Court, said : " The 
 rule which binds common carriers absolutely to insure the safe
 
 THE CARRIAGE OF A PASSENGER'S LUGGAGE BY RATLWAY. 413 
 
 delivery of the goods, except against the act of God or the Queen's ch. xvii. 
 enemies, whatever may be the negligence of the passenger himself, ^^' 
 has never, that we are aware of, been applied to articles which are 
 not put in the usual luggage van, and of which the entu'e control 
 is not given to the carrier, but which are placed in the carriage in 
 which the passenger travels, so that he, and not the company's 
 servants, has de facto the entire control of them whilst the carriage 
 is moving. If a passenger packed up articles liable to ignition by 
 friction, and by the shaking of the carriage they caught fire ; if a 
 passenger were to look on whilst his luggage was being taken away 
 or rifled, when he might reasonably be expected to interfere ; if he 
 were to expose small articles of apparent great value in a con- 
 spicuous part of the carriage, and leave them there whilst he 
 unreasonably absented himself, and they were in consequence pur- 
 loined, — he would have no more just reason for complaint against 
 the carrier, than if he had upon some false alarm thrown his pro- 
 perty out of the carriage window. ... In the present case we are 
 of opinion that the jury were justified in inferring from the cir- 
 cumstance of the portmanteau being put with the passenger's 
 assent, and of course for his convenience, into the carriage in which 
 he was to travel, and so out of the immediate and active control of 
 the company's servants, instead of in the ordinary luggage van, 
 where it would have been under such control, that it was intended 
 by both parties, and was an implied term of the contract of carriage, 
 that in return for the convenience of having his luggage at hand, 
 the passenger should, during the journey, take such reasonable 
 care of his own property as might be expected from an ordinary 
 prudent man, and should not by his negligence expose it to more 
 than the ordinary risk of luggage carried in a passenger carriage, 
 and that the finding of negligence in not using such reasonable 
 care was sustained by the evidence." 
 
 If a railway company place luggage in the carriage with the 
 passenger without having been requested so to do by the passenger, 
 they will not be absolved from their liability as insurers of such 
 luggage, and they have no right to compel the passenger to take it
 
 414 - THE LAW OF CARRIERS. 
 
 Ch. XVII. in the Ccariiage with, him at his own risk. {Munsfer v. S. E. By. 
 
 ^'^- ^Q^- Co., 27 L. J. C. P. 308 ; 4 C. B. 676 ; ante, p. 397.) 
 
 " I am very far from saying that there may not be cases where 
 a company is bound by its contract to convey goods safely, in 
 which the conduct of the passenger in taking the goods into his 
 own personal custody and charge may, to some extent, release the 
 company from its obligation. But I think that the eAidence must 
 be strong to make out such a case ; and it is not because an article 
 is, by common consent, placed in a carriage alop.g with a pas^ergcr 
 that the company is released. If it vrere otherwise, it would follow 
 that he would be able to take any luggage into a carriage alo}]g 
 with him, without risk of losing it. I cannot therefore by inference 
 come to a conclusion which would relieve the company from the 
 obligation of keeping a general superintendence over articles placed 
 in the carriages so as to prevent thieves from pm-loining them. I 
 think, therefore, that a case must be proved, leading irresistibly to 
 the conclusion that the passenger takes possession of his articles 
 before we say that carriers are not liable for the loss of them." 
 {Per Cockburn, C. J., in Le Conteur v. L. ^ S. IF. By. Co., 35 
 L. J. Q. B. 40.) 
 
 A sleeping-car company are liable for a loss of a passenger's 
 property only on proof of negligence, and the mere fact of loss 
 raises no presumption of negligence. {Tracey v. Pullman Palace 
 Car Co., 67 How. N. T. Pr. 154.) 
 
 Where a passenger on a sleeping car, in which there were only 
 curtains dividing the sections and separating them from the aisle, 
 and no special watch was kept, lost personal effects which he had 
 placed under his pillow, it was held that the car company were 
 liable as for negligence, either in not furnishing apartments that 
 could be securely closed, or in not supplying a watch. ( Woodruff 
 Slecpng, ^r. Coach Co. v. Diehl, 84 Ind. 474 ; 43 Am. Eep. 108.) 
 
 305. The liability of a railway company as insurers 
 of luggage commences from the moment when luggage
 
 THE CARBIAGE OF A PASSENGER'S LUGGAGE BY RAILWAY. 415 
 
 is placed under the control of one of their porters ch. xvii. 
 
 Art. 305. 
 
 for the purpose of putting it in transit. {Lovell\. L. C. — '- — ^ 
 Sf D. Ry. Co., 45 L. J. Q. B. 476; 34 L. T. 127; 24 
 W. R. 394.) 
 
 When a porter receives luggage at the entrance of a 
 station for the purpose of labelling it and putting it in 
 a train, he receives it as agent of the company, and 
 the company is liable for its safety, although the j^as- 
 senger has not yet taken a ticket. (Ihid.) 
 
 The liability is the same when luggage is entrusted 
 to a porter, a reasonable and proper time before the 
 departure of the train, to place in the carriage with the 
 passenger. [Bunch v. G. W. Ry. Co., 13 App. Cas. 
 31; 57 L. J. Q. B. D. (H. L.) 361; Leach v. S. E. 
 Ry, Co., 34 L. T. 134.) 
 
 In LovelVfi Case the passenger arrived at a station half an hour 
 too early, and gave his luggage to a porter, who undertook to label 
 it, and it was held that the luggage was thenceforward in the 
 custody of the company as common carriers ; and a notice by the 
 company that "the company's servants are forbidden to take 
 charge of any articles," and that " any article which a passenger 
 wishes to leave at a station should be deposited in a cloak room," 
 did not apply to such a case. To make the company liable it is 
 not necessary that the intending passenger should have taken a 
 ticket, or that the luggage should be labelled, but he must have 
 given directions for it to be placed in transit. If an intending 
 passenger, on arriving at a station, give his portmanteau to a 
 porter, and say merely the name of the station he is going to {c. g., 
 "Hull"), and the porter answers "All right!" this would, it 
 seems, attach to the company their liability as common carriers; 
 but if the luggage is given to the porter and nothing said on 
 either side, the company is not hable if, before directions are given 
 to place the luggage in transit, it is lost. {Agrell v. L. 8f JY. W. 
 Rt/. Co. 34, L. T. 134.) In tliat case the plaintiff, allowing hig
 
 416 THE LAW OF CARRIERS. 
 
 Ch. XVII. luggage to be taken from liim by a porter, gave no instructions to 
 
 Art 305 
 ; .■ the porter as to his destination ; but the porter leaving, and no 
 
 other porter coming forward, labelled his own luggage and then 
 
 went off to the refreshment room, it was held that the plaintiff 
 
 could not recover for the loss of his luggage. Pollock, B., said : 
 
 " 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, and may have come to the station 
 
 only to deposit his luggage in the left luggage office whilst he is 
 
 going round to customers, would seem to be not only making a 
 
 contract w^hich was never made, but imposing upon railway 
 
 companies a bm-den beyond what has hitherto fallen to common 
 
 carriers." (See also Midland Ry. Co. v. Bromley, 25 L. J. 0. P. 
 
 94 ; and Gilhart v. Dale, 5 A. & E. 543.) 
 
 Lush, J. , in delivering judgment in LoveWs Case, said : " I own 
 
 that I think this is a very plain case. A passenger arrives at the 
 
 station just before the time when she expects her train to start. 
 
 She was, however, mistaken in the hour of the departure of the 
 
 train. A porter comes up to the cab : ' Am I in time for the 2.50 
 
 train ? ' she asks. ' There is no such train,' he replies, ' but there 
 
 is one at 3.13.' ' Can I get my ticket ? ' she inquii'es. ' Yes, in a 
 
 few minutes,' is the answer, and then, while she goes to take her 
 
 ticket, the porter takes the luggage away to label it. She therefore 
 
 did not go for the purpose of leaving her luggage at the station, 
 
 but intending to go by the train, and the luggage was delivered in 
 
 the ordinary way to the servants of the company, not to be kept, 
 
 but for the very purpose for which people go with luggage to 
 
 railway stations, that is to say, to have it labelled and put in the 
 
 train. Under these circumstances, I have no doubt the company 
 
 are liable for its loss." And Blackburn, J., said: "I do not see 
 
 how any railway company could carry on its business as a carrier 
 
 of passengers if this is not to be considered as the beginning of the 
 
 journey. If the porters had to leave the luggage brought to the
 
 THE CARRIAGE OF A PASSENGER'S LUGGAGE BY RAILWAY. 417 
 
 station by intending passengers loaded on the cab until the pas- Ch. xvii. 
 
 senger should have got his ticket, the result would be such a '. 1 
 
 crowding of vehicles and luggage that the business could hardly be 
 carried on at the station. The railway company have said, as they 
 were 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 deposited, it must be kept by the 
 company's servants while the passenger gets his ticket. . . . No 
 company could carry on business if the porters were not to take the 
 luggage out of the cabs and omnibuses till the owner has taken 
 his ticket." 
 
 In Bunches Case {ante, p. 411), the question actually decided in 
 the House of Lords was that it is within the scope of the duty of 
 a railway porter to carry hand-luggage to and from the cabs and 
 other conveyances ; but it met with a vigorous opposition and direct 
 denial from Lord Bramwell, 
 
 The facts of that case were as follows : — The female plaintiff 
 arrived at the Paddington Station of the defendants' railway at 
 4.20 P.M. on Christmas Eve with a bag and two other articles of 
 luggage, in order to travel by the 5 p.m. train. A porter 
 labelled the two articles and took all the luggage to the 
 platform, the train not then being at the platform. The 
 female plaintiff told the porter she wished the bag to be put 
 into a carriage with her, and asked if it would be safe to 
 leave it with him. He replied that it would be quite safe, and 
 that he would take care of the luggage and put it into the train. 
 She then went to meet her husband and get her ticket. Ten 
 minutes after she had left the luggage she and her husband re- 
 turned together to the platform and found that the two labelled 
 articles had been put into the van of the train, but that the porter 
 and the bag had disappeared. In an action in the county court 
 against the railway company for the loss of the bag, the judge 
 found that the time when the luggage was entrusted to the porter 
 was a reasonable and proper time before the departure of the train, 
 
 M. E E
 
 418 THE LAW OF CARRIERS. 
 
 Ch. XVII. and that the porter was guilty of negligence in not being in readi- 
 ^^^- ^^^' ness to put the bag into the carriage when the female plaintiff 
 returned, and held the company liable. 
 
 It was held by Lord Halsbury, L. C, and Lords Watson, 
 Herschell, and Macnaghten (Lord Bramwell dissenting), that 
 there was evidence upon which the county court judge might 
 reasonably find, first, that the bag was in the custody of the rail- 
 way company for the purposes of present and not of future transit 
 from the time when it was delivered to their porter until its dis- 
 appearance ; and secondly, that its loss was due to their negligence. 
 Lord Macnaghten said : " The ser\4ces rendered by railway 
 porters in receiving passengers' luggage, in taking it to the plat- 
 form, and putting it into the train, are part of the ordinary 
 facilities for passenger traffic which the public nowadays expects 
 from railway companies, and which railway companies for the 
 most part hold themselves out as ready and willing to afford. 
 These services are covered by the fare which the passenger pays for 
 his journey. They are offered in view of the contract which a 
 person who presents himself with luggage at a railway station pre- 
 sumably either has made or is about to make. The contract, as 
 the case may be, runs from, or relates back to, the commencement 
 of the journey; and the journey must, I think, be taken to com- 
 mence, as regards passengers' luggage, at the time when the 
 luggage is received by the company's servants for the purpose of 
 the jom-ney. Thenceforward the work done in taking the luggage 
 to the platform, in putting it into the train, in conveying it to its 
 destination, and there delivering it, must, I think, be regarded 
 under ordinary circumstances as the continuous operation to be 
 performed under the contract. The contract is the ordinary con- 
 tract of common carriers — a contract to carry securely." 
 
 306. If a passenger entrusts luggage to a porter 
 for deposit and custody, as distinguished from the 
 physical handing over for the pui'pose of transit, the 
 railway company are not liable for the loss of such 
 luggage. {Bunch v. G. W. Rij. Co., 13 App. Cas. 31 ;
 
 THE CARRIAGE OF A PASSENGER'S LUGGAGE BY RAILWAY. 419 
 
 57 L. J. Q. B. (H. L.) 3G1 ; Welch v. L. c^ N. W. By. ch. xvii. 
 Co., 34 W. R. 166.) '^'^- ^^^- 
 
 In the latter case the intending passenger, having missed his 
 train, asked a porter to take charge of his luggage until the next 
 train, and the porter having agreed to do so, the passenger left the 
 station, and went to the billiard-room of an hotel, where he amused 
 himself for an hour, returning to find his luggage missing. It 
 was held that the porter was not the agent of the railway company 
 to take charge of the luggage. 
 
 In Rodkinson v. L. 8^- N. W. By. Co. (14 Q. B. D. 228), the 
 plaintiff arrived at a station on the defendants' railway with her 
 luggage contained in two boxes, which were taken from the 
 luggage-van by a porter in the employ of the company. The 
 porter asked the plaintiff if he should engage a cab for her. In 
 reply, she said she would walk to her destination, and would leave 
 her luggage at the station for a short time and send for it. The 
 porter said, " All right ; I'll put them on one side and take care 
 of them," whereupon the plaintiff quitted the station, leaving her 
 boxes in the custody of the porter. One of them was lost. It 
 was held that the transaction amounted to a delivery of the 
 luggage by the company to the plaintiff, and a re-delivery of it by 
 her to the porter as her agent to take care of, and that conse- 
 quently the company were not responsible for the loss. Lord 
 Coleridge, in giving judgment, said : " Possibly the porter may be 
 responsible for the loss ; but the company clearly are not. Fat- 
 scJieider v. G. W. Bi/. Co. {posf, Art. 312) is clearly distinguish- 
 able ; there the plaintiff had no opportunity of taking possession 
 of her box." 
 
 307. A railway company when carrying passengers' 
 luggage by land are entitled to the protection of the 
 Carriers Act, 1830. (Macmw y. G. W. By. Co., L. R. 
 6Q. B. 612; 40 L. J. Q. B. 300.) 
 
 See this Act set out in detail, ante, Chap. VI., p. 56, and Art. 107. 
 
 ee2
 
 420 THE LA W OF CARRIERS. 
 
 Ch. XVII. 308. Passeno-ers' luo-ffao-e is witliiii section 7 of the 
 
 Art. 308. -r. -1 oo o 
 
 Railway and Canal Traffic Act, 185 J:, and therefore a 
 
 railway company are liable for loss of or injury to such 
 lug-gage in the receiving, forwarding, or delivering 
 thereof, occasioned by the neglect of such company or 
 their servants, notwithstanding any notice or condition 
 made and given by them in anywise limiting such 
 liability. Any special contract or condition limiting 
 the liability of the company in respect of the loss or 
 injury of such luggage must be just and reasonable, 
 and must be signed as required by that section in order 
 to protect the company. [Cohen v. >S'. E. Rjj. Co., 2 
 Ex. D. 253; 46 L. J. Ex. 417.) 
 
 The facts in that case were these : — The plaintiff took a ticket at 
 an office of the defendants in Boulogne for a through journey from 
 Boulogne to London, by defendants' steamer to Folkestone, and thence 
 by their railway to London. On the ticket was printed : " Each 
 passenger is allowed 120 lbs. of luggage free of charge." " The 
 company is in no case responsible for luggage of the passenger 
 travelling by this through ticket of greater value than 6/." Plain- 
 tiff had a box with her, which was given in charge of defendants' 
 servants, and in transferring it from the boat to the train it fell 
 into the sea, owing to the negligence of defendants' servants. It 
 was held by the Com't of Appeal that, assuming the contract to be 
 governed by English law, the condition on the ticket was void by 
 reason of sect. 7 of the Railway and Canal Traffic Act, 1854, and 
 sect. IG of the Regulation of Railways Act, 1868. But see now 
 note to Art. 173 and Art. 262. 
 
 The provisions of sect. 7 of the Railway and Canal Traffic 
 Act, 1854, are set out ri)ite, Art. 168. The section does not 
 apply to goods received not in the capacity of carriers, as lug- 
 gage left in the cloak-room after the completion of the railway
 
 THE CAERIAOE OF A PASSENGERS LUGGAGE BY RAILWAY. 421 
 
 journey. {Van Toll v. S. E. B>j. Co., 31 L. J. C. P. 241 ; 2^ost, Ch. xvii. 
 Art. 313.) ^'^- ^°^- 
 
 The plaintiff was a season ticket holder on the defendants' line 
 from B. to K. under a special contract, by which he undertook to 
 abide by all the rules, regulations, and bye-laws of the defendants. 
 One of such regulations was that the defendants would not be 
 responsible for any passenger's luggage, unless fully and properly 
 addressed with the name and destination of the owner. The 
 plaintiff ha\dng with him a bag which was not so addressed saw it 
 labelled for K. by one of the defendants' servants; he left the 
 train at C, an intermediate station, and proceeded to K. by a 
 subsequent train ; on his arrival at K. his bag was missing. There 
 was no evidence that the bag ever reached K. It was held that 
 the regulation of the defendants was not a just and reasonable 
 condition within sect. 7 of the liailway and Canal Traffic Act, 
 1854 (17 & 18 Yict. c. 31), and could not be enforced against the 
 plaintiff : — Qucere, whether the liability of the defendants in respect 
 of the portion of the journey from C. to K. was that of common 
 carriers or merely of gratuitous bailees. {Cutler v. North London 
 BU. Co., 19 a B. D. 64 ; 56 L. T. 639.) 
 
 309. A railway company issuing a ticket for tlio 
 conveyance of a passenger partly by land and partly 
 by water are entitled to the benefit of the Carriers' 
 Act, 1830 {ante., Chap. VI.), in respect of so much of 
 the journey as is performed by land. {Lc Couteur y. 
 L. cV S. W. Bfj. Co., L. R. 1 Q. B. 54 ; ^5 L. J. Q. B. 
 40 ; post, p. 427.) 
 
 Where a railway company by through booking 
 contract to carry any luggage from place to place 
 partly by railway and partly by sea, a condition 
 exempting the company from liability for any loss or
 
 422 THE LAW OF CARRIERS. 
 
 Ch. XVII. damage wliich may arise during the carriage of such 
 — — — '- kiggage 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 Avhich the company gives for 
 such luggage, be valid as part of the contract between 
 the consignor of such luggage 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. (The Regulation of Railways Act, 
 1868, 31 & 32 Vict. c. 119, s. 14.) 
 
 " The legislature foresaw that injustice mlglit be done to the 
 company in respect of carriage by sea, as they are Hable to acci- 
 dents and losses by the dangers of the sea to which they are not 
 liable by land, and if they were subject to a carrier-liability for the 
 loss of luggage, w^iich we assume they would be, it would be hard 
 upon them ; therefore the legislature has expressly provided for 
 that by another clause : they can, by putting up a notice in the 
 office, save and protect themselves against those extraordinary 
 liabilities against which parties protect themselves by the ordinary 
 bill of lading, that is, against losses by the dangers of the sea, &c. 
 Therefore they can protect themselves from losses by dangers of 
 the sea ; but having so treated the hability by sea, the legislature 
 says that they shall in other respects be subject to the same rule as 
 when they carry by railway, and they cannot put unreasonable 
 conditions upon a passenger which shall prevent him from recover- 
 ing for the loss of his luggage." {Per Mellish, L. J., in Cohen v 
 >S'. E. Ri/. Co., ante, p. 420.) See ante, Art. 173.
 
 THE CARRIAGE OF A PASSENGER'S LUGGAGE BY RAILWAY. 423 
 
 310. Where a railway company issues a throiig-li ch. xvii. 
 ticket by which the j^assenger is to be carried partly — '■ — - 
 on their OAvn line and partly on that of another com- 
 
 • pany, their liability for the loss of such passenger's 
 luggage is the same whether such loss occurs on their 
 line or on that of the other company. (Ante, Art. 
 192.) 
 
 A railway company may, by special contract, 
 exempt themselves from liability for loss of passengers' 
 luggage occurring on a railway not belonging to or 
 worked by themselves, the Railway and Canal Traffic 
 Act, 1854 (s. 7), applying only to the traffic on a com- 
 pany's own line. (Zwis v. S. E. Ry. Co., L. R. 4 Q. B. 
 539; 38 L.J. Q. B. 209.) 
 
 The facts in that case were these : — Z. took a through ticket from 
 the Charing Cross station of the South Eastern Railway Company 
 to Paris : the ticket was in three coupons — (1) from London to 
 Dover ; (2) from Dover to Calais ; (3) from Calais to Paris. His 
 luggage consisted of a portmanteau and a hat-box, which were 
 registered through to Paris. Upon the ticket was printed the 
 following condition : — " The 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 company's trains or boats." The portmanteau was lost on the 
 journey between Calais and Paris. In an action for the loss, it 
 was held that the Railway and Canal Traffic Act, 1854, only 
 applied to the traffic of the company on their own line, and there- 
 fore the company was at liberty to make the special contract con- 
 tained in the ticket. (See Baltimore, ^c. By. Co. v. Canq^hell, 38 
 Am. Rep. G17; and Iladd v. U. 8. S^r. Co., 36 Am. Rep. 757.) 
 
 311. The railway company actually carrying the 
 passenger and his luggage, so far as concerns their
 
 424 
 
 Ch. XVII. 
 Art. 311. 
 
 THE LA W OF CARRIERS. 
 
 own line, and their own acts or omissions, are under 
 the same obligations in reference to the safety of the 
 passenger's luggage as they would have been if they 
 had directly contracted with him. {Ilooper v. L. ^^ N. 
 W. Rij. Co., 50 L. J. C. P. D. 103.) 
 
 It appeared in that case that the Great Western Eailway Com- 
 pany issue through tickets from Stourbridge on their line to Euston 
 {via Birmingham) on the defendants' line. The journey from 
 Stourbridge to Birmingham is by the Great Western Eailway, 
 and from Birmingham to Euston by the defendants' railway. 
 The plaintiff travelled with one of these tickets, and his port- 
 manteau was labelled and carried in the van of the Great Western 
 Eailway Company as far as Birmingham. At Birmingham he 
 changed into the defendants' train, and his portmanteau was seen 
 to be transferred into the van of the defendants' train; but at 
 Euston it was not forthcoming, and was not recovered for three 
 months afterwards, when its contents were found injured by the 
 corruption of a brace of pheasants which the plaintiff had packed 
 inside the portmanteau. The jolaintiff having sued the defendant 
 company for the delay and injury to his goods, it was held that 
 the action was maintainable, for the defendants, having received 
 the portmanteau to forw^ard it, had committed a breach of duty 
 in neglecting to do so, for which they were responsible, apart from 
 any question of contract. 
 
 There was no evidence to show to what point the portmanteau 
 was labelled, but it would seem it must have been labelled to 
 Euston. 
 
 Lindley, J., in delivering judgment, said: "The plaintiff, no 
 doubt, entered into an express contract with the Great Western 
 Eailway Company to carry him and his luggage to Euston ; at 
 Birmingham it was transferred into the van of the defendant com- 
 pany. Whether there would be an implied contract with the 
 defendant company may be a question of difficulty, but, as a 
 matter of fact, the portmanteau was lawfully in their charge, and
 
 THE CARRIAGE OF A PASSENGERS LUGGAGE BY RAILWAY. 425 
 
 the fact of its not being forthcoming at Euston involves the default Ch. xvil. 
 of some one of the defendants' servants. The defendant company, ^^^' ^^^' 
 having received the portmanteau, are responsible for its loss, in 
 accordance with the principle of Foiilkes v. Met. li//. Co. [ante, 
 p. 186). I am unable to distinguish that case from the present." 
 (See ante, Art. 193, and Haivley v. Screven, 35 Am. Eep. 12G.) 
 
 Damages may be recovered against a railway company for un- 
 reasonable delay in forwarding a passenger's luggage. {I£oo2)er's 
 Case, supra.) 
 
 Where a railway company issued a through ticket which had on 
 it the words, " This ticket is issued subject to the regulations and 
 conditions stated in the company's time tables and bills " ; and 
 there were notices in the booking office, and also on the company's 
 time tables, to this effect : — " The company does not hold itself 
 responsible for any delay, detention, or other loss or injury what- 
 soever arising off its lines, or from the acts or default of other 
 parties;" it was held that, upon the true construction of the condi- 
 tion, the luggage could not be said to be off the defendants' line 
 until it was out of their custody, and in the custody of some per- 
 son responsible for its loss. [Kent v. Midland Ri/. Co., 44 L. J. 
 Q. B. 18.) 
 
 312. It is the duty of a railway company with 
 regard to the luggage of a passenger which travels by 
 the same train with him, but not under his control, 
 when it has reached its destination, to have it ready 
 for delivery upon the platform at the usual place of 
 delivery until the owner, in the exercise of due dili- 
 gence, can receive it; and the liability of the com- 
 pany as carriers does not cease until a reasonable time 
 has been allowed to the owner to claim it. (FaUclieider 
 v. G. W. Rij. Co., 3 Ex. D. 153 ; Firth v. N. E. %. Co., 
 36 W. R. 467.)
 
 426 
 
 Ch. XVII. 
 Art. 312. 
 
 THE LAW OF CARRIEBS. 
 
 Where a railway company employ porters at their 
 stations to convey passengers' luggage from the train to 
 the carriages or hired vehicles of the passengers, the 
 liability of the company as carriers continues until the 
 porters have discharged their duty. (Richards v. L. B. 
 ^ S. C. Rij. Co., 7 C. B. 839; 18 L. J. C. P. 251 ; 
 ButcJiet- V. L. cV S. W. Ry. Co., 24 L. J. C. P. 137.) 
 
 If such is the usual practice of the company, they are bound, 
 upon a passenger's arrival at his destination, to place his luggage 
 upon a cab, if he requires them to do so ; and where such a practice 
 prevails, the company's responsibiUty continues until the whole 
 luggage has been delivered on to the cab. 
 
 In Butclicr^ Case [supra), a passenger on the arrival of the train 
 got out of the railway carriage on to the platform with a part of 
 his luggage, a small hand-bag, in his hand, which he gave to one 
 of the company's porters to take to a cab, and the porter lost it, 
 and the company were held liable as for a non-deHvery of the bag ; 
 it not being found by the jury that the passenger, by taking the 
 bag into his own possession on the platform, had accepted that as a 
 performance of the company's contract to deliver, according to 
 their usual practice, into a cab. Crov/der, J., in delivering judg- 
 ment, said : " There was evidence that the bag was given to the 
 company to be conveyed and delivered, and it appeared that the 
 usual mode of delivery adopted by them was, that when the luggage 
 arrived at the terminus the company's porters, if required so to do, 
 assisted in carrying it and placing it on cabs within the station ; 
 and that assistance, as it seems to me, was included in the com- 
 pany's contract, for no gratuity is given by the passengers to the 
 porters for it, but it is included in the fare paid at the commence- 
 ment of the journey, and it is, of course, an advantage to the 
 company to have the luggage removed from the platform as 
 speedily as possible. The only distinction between this case and 
 Richards v. L. B. ^ S. C. Ry. Co. is, that the plaintiff here had
 
 THE CARRIAGE OF A PASSENGERS LUGGAGE BY RAILWAY. 427 
 
 tlie taff in his hand on the platform after the arrival of the train ; Ch. xvii. 
 . . Art 312 
 
 but as it is not found that he had elected to treat that as a complete ! 1 
 
 delivery, and as he intended to have a cab and gave the bag to one 
 of the company's ^^orters to deliver to a cab, and, for anything that 
 appears to the contrary, the porter did not deliver it, there was no 
 delivery according to the contract. The case is much the same as 
 if the plaintiff had got out of the carriage -without the bag, and the 
 porter had then handed it out." 
 
 In Le Couteur v. L. ^ S. TV. E>/. Co. (L. E. 1 Q. B. 54 ; 35 
 Ij. J. Q. B. 40), the railway company were held responsible for the 
 loss of a dressing case accompanying the person of the passenger 
 and lost in the course of being put into a hackney carriage at the 
 station. It should be remarked that in this case there was evidence 
 of negligence on the part of the company's servants. (See judg- 
 ment of Willes, J., in Talki/'s Case, L. E. 6 0. P. 44 ; 40 L. J. C. 
 P. 9.) 
 
 " I think that if a traveller by a railway is dissatisfied with his 
 mode of travelling, he may at any point stop and require that his 
 luggage should be delivered up to him." {Per Martin, B., in 
 Scotthorn v. South Staffordshire By. Co., 22 L. J. Exch. 121 ; and 
 see Ramsey v. N. E. Ry. Co., 32 L. J. 0. P. 244.) 
 
 The law in the United States is the same as stated in this 
 Article. "If he does not so remove it, it is the company's duty 
 to put it into their baggage room and keep it for him, being 
 liable only as warehousemen. And the reasonable time within 
 which the owner must remove it is directly upon its arrival, 
 making reasonable allowance for delay caused by the crowded state 
 of the station at that time ; and the lateness of the hour makes 
 no difference if the baggage be put upon the platform." (Eed- 
 field on Carriers, p. 61 ; CJiicago and Alton Ry. Co. v. Addizoat, 
 111. App. 632.) 
 
 When a passenger did not call for his trunk on arriving at the 
 termination of his route, but left it overnight, without any arrange- 
 ment, and it was destroyed before morning by the biu'ning of the 
 station, it was held the company were not responsible. {Roth v.
 
 428 THE LAW OF CARRIERS. 
 
 Ch. XVII. Buffalo, Si'c., Rij. Co., 34 N. Y. 548.) Where a passenger's trunk 
 
 •^^^- ^^^- was carried to its destination, and not being called for was placed 
 
 overniglit by the carrier in the ladies' waiting-room, it was held 
 
 that the passenger could recover damages for articles stolen from 
 
 it. {Hanhrai/ v. St. Louin and Cairo Ri/. Co., 17 111. App. 321.) 
 
 Articles found in a railway carriage belong to the finder in the 
 absence of the rightful owner claiming them. 
 
 313. A railway company are only liable as ordinary 
 warehousemen for luggage left at a " cloak-room" or 
 ''left luggage office." But a railway company are 
 not bound to receive luggage into their warehouse 
 upon the ordinary liability of warehousemen, and 
 they usually further limit their liability by conditions 
 printed on the ticket given to the depositor at the 
 time. There is no rule or presumption of law that a 
 person is bound by the conditions contained in a 
 document thus delivered to him ; but it is a question of 
 fact in each case whether they have been brought to 
 his notice. {Henderson v. Stevenson, L. R. 2 Sc. App. 
 470.) 
 
 If the person receiving the ticket did not see or 
 know that there was any writing on the ticket, he is 
 not bound by the conditions. 
 
 If he knew there was writing, and knew or believed 
 that the writing contained conditions, lie is bound by 
 the conditions. 
 
 If he knew there was writing on the ticket, but did 
 not know or believe that the ticket contained condi- 
 tions, nevertheless he will be bound if the delivering 
 of the ticket to him in sucli a manner that he can see 
 that there was writing upon it is, in the opinion of
 
 THE CARRIAGE OF A PASSENGER'S LUGGAGE BY RAILWAY. 429 
 
 the jury, reasonable notice that the writinf^ contained ch. xvii. 
 
 Art 313 
 
 conditions. (Parker v. S. E. %. Co., 2 C. P. D. 416 ; — '■ — '- 
 46 L. J. C. P. (Ai^p.) 768 ; Ilarris v. G. W. B>j. Co., 
 1 Q. B. D. 515 ; 45 L. J. Q. B. 729.) 
 
 If a cloak-room ticket has on the face of it a plain 
 and unequivocal reference to the conditions printed 
 on the back, the person taking such ticket is bound 
 by the conditions, whether he has made himself ac- 
 quainted with them or not. (Ibid.) 
 
 In Parkcr^s Case the plaintiff deposited his bag in the cloak- 
 room of a station on the defendants' railway, and paid 2d. He 
 received in return a printed ticket, bearing on the face of it a 
 receipt for one article, and at the bottom the words " See back." 
 At the back of the ticket were the words, " The company will not 
 be responsible for any package exceeding the value of 10/," The 
 same conditions were also printed on a placard hung up in the 
 cloak-room. In an action against the company for the loss of the bag 
 while thus in their cloak-room, the plaintiff claimed more than 10/. 
 for the value of the bag and its contents. The defendants resisted 
 the claim on the ground that they were relieved from responsibility 
 by the above conditions. The Court of Appeal held that the 
 proper question for the jury was, whether the defendants had done 
 what was reasonably sufficient to give the plaintiff notice of the 
 condition ; and that, if that question were answered in the affirma- 
 tive, judgment should be given for the defendants. Mellish, L. J,, 
 said : " The railway company, as it seems to me, must be entitled to 
 make some assumptions respecting the person who deposits luggage 
 with them. I think they are entitled to assume that he can read, 
 and that he understands the English language, and that he pays 
 such attention to what he is about as may be reasonably expected 
 from a person in such a transaction as that of depositing luggage 
 in a cloak-room. The railway company must, however, take 
 mankind as they find them, and if what they do is sufficient to
 
 430 
 
 THE LA W OF CARRIERS. 
 
 Ch. XVII. inform people in general that tlie ticket contains conditions, I 
 Art 313 1 • • 
 
 _J think that a particular plaintiff ought not to be in a better position 
 
 than other persons on account of his exceptional ignorance, stupidity, 
 or carelessness; but if what the railway company do is not suffi- 
 cient to convey to the minds of people in general that the ticket 
 contains conditions, then they have received goods on deposit 
 ■without obtaining the consent of the persons depositing them to 
 the conditions limiting their liability." 
 
 In Henderson v. Stevenson {supra), a passenger paying for and 
 taking a ticket for an ordinary joiu^ney for himself and luggage 
 was held not to be bound by a condition that the company were 
 not liable for losses of any kind, which was printed on the back of 
 the ticket, without any reference on the face, and which he did 
 not in fact read, and which was not other-svise brought to his 
 notice. 
 
 A passenger, on his arrival at a railway station in the evening, 
 left a large and heavy trunk with the porter at the left-luggage 
 office, and in return for it got a receipt, bearing on the face, " The 
 company only receive the mthin-mentioned articles upon the con- 
 ditions expressed on the back of this ticket." The third condition 
 upon the back was that when any " article deposited in the com- 
 pany's cloak-room or warehouse " exceeding the value of 5/. was 
 lost, the company would not be liable, unless at the time when the 
 package was delivered its true value was declared, and a corre- 
 sponding additional charge paid. A notice to the same effect was 
 likewise posted inside the office. No verbal reference was made to 
 the terms of the conditions. Owing to press of traffic the trunk 
 was left by the company's officials upon the station platform, 
 immediately outside the left-luggage office, and had disappeared 
 next day. The value exceeded 5/. and had not been declared. 
 The Court of Session held that the railway company were liable 
 for the loss, as they were not in a position to enforce the condition 
 above specified, the article not having been " deposited in the com- 
 pany's cloak-room or warehouse." {Handon v. Caledonian By. Co., 
 7 Sess. Ca. (4th Ser.) 966.)
 
 TFIE GARRIAOE OF A PASSENGERS LUOQAGE BF RAILWAY. 431 
 
 The facts in the Endisli case of Harris v, G. W. Ri/. Co. (ante, Ch. xvil. 
 
 ' Art 313 
 p. 429), differ from IIando)i's Case. In the English case, the ^ '- 
 
 goods were deposited in a vestibule in such a manner as to satisfy 
 the condition of being kept with reasonable and proper care ; in 
 Handouts Case, it was proved that the trunk was taken bj the rail- 
 way company out of their cloak-room or warehouse, and left on 
 the platform of the station outside the luggage office, and that 
 without the consent of the owner. 
 
 In Van Toll v. >S'. E. Puj. Co. (31 L. J. C. P. 241), the plaintiff, 
 after travelling by the line of a railway company, deposited her 
 bag, containing wearing-apparel and jewellery of the value of 20,?., 
 at the cloak-room of the railway station. On so depositing the 
 bag the plaintiff paid the charge of 2d., and received a ticket, on 
 the back of which was printed : " The company will not be respon- 
 sible for articles left by passengers at the station, unless the same, 
 be duly registered, for which a charge of 2c/. 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 ownership being produced. A charge of Id. per diem, in 
 addition, will be made on all articles left in tlie cloak room for a 
 longer period than twenty-four hours. The company will not be 
 responsible for any package exceeding the value of 10/." It did 
 not appear whether the plaintiff read this notice on the ticket, but 
 she brought the ticket to the cloak room when she retm-ned there 
 for the bag. It was held that the Eailway and Canal Traffic Act, 
 1854, s. 7, did not apply, as the company did not receive the bag 
 in the capacity of carriers. It was also held that the inference 
 from the above facts was that the plaintiff assented to the terms of 
 the notice on the ticket, and that therefore, as the value of the 
 articles exceeded 10/., the company were not liable for their loss, 
 although occasioned by the comj)any's negligence. Willes, J., in 
 delivering judgment, said : " With respect to the Railway and Canal 
 Traffic Act, 1854, that deals with the receipt, forwarding, and 
 delivery by carriers, not with such accommodation as was made 
 the question in this case. The accommodation given at the cloak-
 
 432 THE LAW OF CARRIERS. 
 
 Ch. XVII. room of a railway station to persons who wish to leave parcels and 
 
 -Ll L other things there, and have them again when they call for them, 
 
 is not a thing at all essential, or necessarily connected with the 
 business of a carrier ; and I think the argument that the company 
 could be compelled to give such a convenience to persons using the 
 railwaj^ was not well founded." 
 
 Where there is no notice on the ticket as to the hours during 
 which the cloak-room is open, the railway company are bound to 
 deliver the articles on a reasonable request, and within reasonable 
 time. {StaUard v. G. W. R>j. Co., 31 L. J. Q. B. 137; 2 B. & S. 
 419.) 
 
 If the owner should lose his ticket of receipt, he may still claim 
 his goods b}^ giving proof of ownership, and the railway com- 
 pany, under such circumstances, will be obliged to return them, 
 notwithstanding what may be printed on the ticket.
 
 ( ^133 ) 
 
 Part Y. 
 
 CARRIERS OF PASSENGERS BY RAILWAY. 
 
 CHAPTER XVIII. 
 
 THE OBLIGATIONS OF A RAILWAY COMPANY TO PROVIDE TRAINS 
 AND ACCOMMODATION FOR PASSENGERS. 
 
 I. — By Statute. 
 
 Articles. 
 
 1. To carry Passengers (17 8f 18 Vict. c. 31, *. 2) 314 
 
 2. Due and Reasonable Facilities for Passenger Traffic on a Rail- 
 
 way Company''s oion Line (17 Sf 18 Vict. e. 31, «. 2) 314 
 
 3. Due and Reasonahle Facilities for Through Passenger Traffic (17 
 
 Sf 18 Vict. c. 31, 5. 2) 315 
 
 4. Through Fares (51 Sf 52 Vict. c. 25, s. 25) 316 
 
 5. Undue Preference (17 ^- 18 Vict. c. 31, *. 2) 317 
 
 6. Conveyance of Military, Naval, Auxiliary, and Police Forces 
 
 (46 §• 47 Vict. c. 34, s. 6) 318 
 
 7. Power of Board of Trade or Railway Commissioners to enforce 
 
 provision of proper Third Class Accommodation aiid Work- 
 men's Trains (46 if 47 Vict. c. 34, 5. 3) 319 
 
 8. Trains not to he provided for Prize Fights (31 Sf 32 Vict. c. 119, 
 
 *. 21) 320 
 
 9. Communication between Passengers and Guard (31 Sf 32 Vict. 
 
 c. 119, s. 22) \ 321 
 
 10. Smoking Compartments to be provided {31 Sj- 32 Vict. c. 119, 
 
 5. 33) 322 
 
 M. F Y
 
 434 THE LAW OF CARRIERS. 
 
 II. — Generally. 
 
 Articles. 
 
 11. As to the duty of a Carrier of Passengers to receive all persons . . 323 
 
 12. Duty to afford Passengers all reasonable and usual Accommoda- 
 
 tion 324 
 
 13. Overcrowding of Raihvay Carriages 324 
 
 14. Contract made loith a Passenger by issuing a Ticket 325 
 
 15. Publication of Time Tables amounts to a Contract that Trains 
 
 xvill run as stated 326 
 
 16. May limit their Liability by notice in the Time Tables 327 
 
 17. Liability for delay occasioning Loss of Train run in connection . . 327 
 
 18. Damages recoverable for delay of a Passenger through unpunctu- 
 
 ality of Trains 328 
 
 Ch. XVIII. 
 Art. 314. 
 
 I. — By Statute. 
 
 314. Every railway company shall, according to 
 their powers, afford all reasonable facilities for the 
 receiving and forwarding and delivering of traffic 
 (which, by interpretation clause, includes passengers 
 and their luggage) upon and from the railway (which, 
 by interpretation clause, includes station) belonging 
 to or W'Orked by such company. (Railway and Canal 
 Traffic Act, 1854, 17 & 18 Vict. c. 31, s. 52.) 
 
 " Railway companies are bound b}^ that Act to pro- 
 vide reasonable facilities for carrying passengers ; but 
 they are not common carriers of passengers." [Pe7' 
 Lindley, L. J., in Dickson v. G. JSf. R/j. Co.^ ante^ 
 pp. 120, 121.) 
 
 Under this statute, very few ajopheations relating to passenger 
 traffic were made to the Court of Common Pleas between ] 854 and 
 1873, when the jui'isdiction was transferred to the Railway Com- 
 missioners. The cases which were decided show that public con- 
 venience is probably the standard by which the absolute accommoda- 
 tion to he granted by railway companies shoidd he determined
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 435 
 
 when the question is imineumbered by any consideration of undue Ch xviii. 
 
 Art. ol4. 
 
 preference. See ante, Art. 231. 
 
 The cases which have been decided under this section as to 
 passenger traffic relate either to (1) fares and tickets ; (2) train 
 accommodation ; or (3) station accommodation. 
 
 (1) Passenger Fares and TicJiets. 
 
 It was' doubted in the earlier cases in the Court of Common 
 Pleas whether the regulation of passenger fares was within the 
 provisions of the Act. {Hozier v. Caledonian Ry. Co., 17 Sess. Ca. 
 302.) 
 
 The judgments of Williams and Willes, JJ., in the case of 
 Caterham Ry. Co. v. L. B. and S. E. Ry. Cos. (1 C. B. (N. S.) 
 410; 26 L. J. C. P. 16), and the decision in Jones v. Eastern 
 Counties Ry. Co. (3 C. B. (N. S.) 718), seemed to decide that it 
 was only in cases of undue preference or prejudice thereby. In Lines 
 V. L. B. ^ 8. C Ry. Co. and L. 8^ S. W. Ry. Co. (2 Ry. & Ca. Tr. 
 Ca. 155), the Railway Commissioners held that to justify their 
 interference with fares, it was not sufficient merely that a distinc- 
 tion in the fares of different hues, even of the same company, 
 existed, unless it created an undue preference or prejudice. And 
 in Broim v. G. W. Ry. (7 U. B. D. 182 ; 50 L. J. Q. B. (App.) 
 483; ante, Art. 235), Bramwell, L. J., said that the words in 
 sect. 2 of the Railway and Canal Traffic Act, 1854, " every railway 
 company shall afford all due and reasonable facihties for the 
 receiving and forwarding of traffic," had no reference to the prices 
 a railway company charged for conveyance. 
 
 In 8. E. Ry. Co. v. Rait/cay Co)nmissioiicrs and Corporation of 
 Hastings (6 Q. B. D. 586 ; 50 L. J. Q. B. D. 201 ; ante, Aii. 236), 
 the Court of Appeal held that the Commissioners had power to 
 make an order to increase the accommodation for the delivery of 
 tickets at a railway station. 
 
 See ante, Chap. XIII. as to passenger fares. 
 
 F F 2
 
 436 
 
 Ch. XVIII. 
 Art. 314. 
 
 THE LA W OF CARRIERS. 
 
 (2) Train Accommodation. 
 
 The Railway Commissioners will order additional trains to be 
 run if a strong or clear case of its being reasonable to do so is made 
 out. {Lines v. L. B. ^ S. O. R>/. Co. and L. ^' S. W. Ri/. Co., 
 2 Ry. & Ca. Tr. Ca. 155.) 
 
 See ante, Art. 237. 
 
 (3) Passenger Station Accommodation. 
 
 The Railway Commissioners have, under sect. 2 of the Railway 
 and Canal Traffic Act, 1854, jurisdiction to hear and determine a 
 complaint against a railway company of not, according to their 
 powers, affording all reasonable facilities for receiving, forwarding, 
 and delivering passengers at and from any of their stations which 
 are used by the company for such passengers. {S. E. Ry. Co. v. 
 Raihcay Commissioners and Corporation of Hastings, 6 Q. B. D. 586 ; 
 50 L. J. Q. B. D. 201 ; ante, p. 265.) 
 
 As to what facilities at a station the Commissioners may order, 
 see Art. 236. 
 
 As to the admission of public vehicles into a railway station, see 
 Art. 278. 
 
 " It may well be that as to passenger traffic facilities under 
 sect. 2 of the Railway and Canal Traffic Act, 1854, all that is 
 required in the way of facilities is that proper carriages shall be 
 provided, and trains despatched at convenient times, and at reason- 
 able rates of speed, because, as to all other matters, the passenger 
 can help himself." {Per Mr. Commissioner Miller in Listing ton 
 Lvn Co. V. L. ^ N. W. Ry. Co. and others, 6 Ry. & Ca. 
 Tr. Ca.) 
 
 315. Every railway company having or working a rail- 
 way wliicli forms j^art of a contiaiious line of railway 
 communication, or wliicli have theii* terminus or station 
 near {i.e. by interpretation clause of the Act, Tvatliin 
 one mile) the terminus or station of another railway 
 company, shall afford all due and reasonable facilities
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 437 
 
 for receiving and forwarding all the passenger traffic ch.xviii. 
 arriving by one of such railways by the other, without — '■ — '- 
 any unreasonable delay . . . and so that no obstruction 
 may be offered to the public desirous of using such 
 railways as a continuous line of communication, and 
 so that all reasonable accommodation may, by means 
 of the railways (which include stations) of the several 
 companies, be at all times afforded to the public in 
 that behalf. (Railway and Canal Traffic Act, 1854, 
 17 & 18 Vict. c. 81, s. 2.) 
 
 The cases which have been decided under this section are set out 
 in ChaiD. XIV., Ai-ts. 243—252. As to through passenger book- 
 ing, see Art. 249. 
 
 A passenger desudng to use an ordinary train for part of a 
 jom^ney, for which lie has taken a thi^ough ticket entitling him to 
 travel by express, is not entitled to any deduction fi'om the thi'ough 
 fare on account of the difference of the service. {City of Dublin 
 Steam Packet Co. v. L. ^ N. W. Ry. Co., 3 Ey. & Ca. Tr. Ca. 10.) 
 
 In cases where, having regard to the clauses in the special Acts, 
 an exchange of passenger traffic between two companies fi-ee to 
 exchange at any junction between theii- hues, ought to be made at 
 the junction which is most convenient for the public, the fact that 
 one route is shorter than another, or one, by reason of curves or 
 gradients, better adapted for fast traffic, or that at one junction 
 there is a joint station, while at another there are two separate 
 stations, are all matters affecting the public convenience as to the 
 place of interchange. {G. N. of Scotland By. Co. v. Ilighkind By. 
 Co., 5 Ey. & Ca. Tr. Ca. 103.) 
 
 316. The facilities to be afforded under sect. 2 of 
 the Railway and Canal Traffic Act, 1854, include the 
 due and reasonable receiving, forwarding, and de- 
 livering by every railway company, at the request of
 
 438 
 
 Ch. XVIII. 
 Art. 316. 
 
 TEE LAW OF CARRIERS. 
 
 any other such company or of any person interested 
 in through passenger traffic, of such traffic to and from 
 the railway of any other such company at through 
 fares. (The Railway and Canal Traffic Act, 1888, 
 51 & 52 Vict. c. 25, s. 25.) 
 
 Tills section is set out m full m Art. 253, and in that and the 
 following Articles (254 — 258) the subject of through passenger 
 fares is dealt with. 
 
 317. No railway comjiany shall make or give any 
 undue or unreasonable preference or advantage to or 
 in favour of any j^articular person or company, or any 
 particular description of traffic (which by interpreta- 
 tion clause includes passengers and their luggage) in 
 any respect whatsoever, nor shall any such company 
 subject any particular person or company to any un- 
 due or unreasonable prejudice or disadvantage in any 
 respect whatsoever. (17 & 18 Vict. c. 31, s. 2.) 
 
 See Chaj)ter XV., ante, p. 332. 
 
 318. For the purpose of moving by railway on any 
 occasion of the public service — 
 
 Any of the officers or men in or belonging to her 
 Majesty's navy or royal naval volunteers, and any 
 other officers or men under the command or govern- 
 ment of the Admiralty ; and 
 
 Any of the officers or soldiers in her Majesty's 
 regular reserve or auxiliary forces (within the mean- 
 ing of the Army Act, 1881, or any Act amending the 
 same) for the time being subject to military law; and 
 
 Any officers or men of any police force ;
 
 CARRIA OE OF PASSENGERS B Y EA IL WA Y. 439 
 
 (All and any of which officers, soldiers and men ch. xviii. 
 
 . . Art 318 
 
 are in this Act called " the forces " ) ; — '- — '- 
 
 Every railway company shall, on the j^roduction of 
 a route duly signed for the conveyance of the forces, 
 provide conveyance for them and their personal lug- 
 gage, and also for any j)ublic baggage, stores, arms, 
 ammunition, and other necessaries and things, whether 
 actually accompanying the forces or not, at all usual 
 times at which passengers are conveyed by the com- 
 pany, on such terms as may be agreed on between the 
 railway company and the Secretary of State, Admi- 
 ralty, or police authority, and subject to or in default 
 of agreement on the following terms : — 
 
 The passenger carriages provided shall be of such 
 classes in use on the railway, and in such propor- 
 tions, as specified in the route. All carriages being 
 l^rotected from the weather and having proper ac- 
 commodation : 
 
 The fares shall not exceed the following propor- 
 tions of the fares charged to private passengers for 
 the single journey by ordinary train in the respec- 
 tive classes of carriages specified in the route, that 
 is to say, if the number of persons conveyed is less 
 than one hundred and fifty, three-fourths; and if 
 the number is one hundred and fifty or more, then 
 for the first one hundred and fifty, three-fourths, as 
 for four officers and one hundred and forty-six 
 soldiers or other persons ; and for the numbers in 
 excess of the said one hundred and fifty, one half : 
 
 This section shall apply to such wives, widows, and 
 children of members of the forces as are entitled to
 
 440 
 
 THE LAW OF CARRIERS. 
 
 Ch. XVIII. 
 Art. 318. 
 
 be conveyed at the public expense, in like manner 
 as if they were part of the forces ; but children 
 less than three years old shall be conveyed free of 
 charge, and the fare for a child more than three and 
 less than twelve years old shall be half the fare 
 payable under this section for an adult : 
 
 One hundredweight of personal luggage shall be 
 conveyed by the railway company free of charge 
 for every one conveyed under this section who is 
 required by the route to be conveyed first-class, 
 and half a hundredweight for every other person 
 conveyed ; and any excess of weight shall be con- 
 veyed at not more than two-thirds of the rate 
 charged to the public for excess baggage : 
 
 The said public baggage, stores, arms, ammuni- 
 tion, necessaries, and things shall be carried at rates 
 not exceeding twopence per ton per mile, the assist- 
 ance of the forces to be given when available in 
 loading and unloading the same : 
 
 Provided that the company shall not be bound 
 under this section to carry gunpowder or other 
 explosive or combustible matters, except on terms 
 agreed upon between the company and the Admi- 
 ralty, or one of Her Majesty's principal Secretaries 
 of State, as the case may be. 
 
 For the purposes of this section a route duly signed 
 shall be deemed to be a route issued and signed in 
 accordance with section 103 of the Army Act, 1881, 
 or an order signed by a j^erson authorized in this 
 behalf by one of Her Majesty's principal Secretaries 
 of State, or a route or order signed by a person autho-
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 441 
 
 rized in this behalf by the Admiralty, or, as regards the ch. xviii. 
 
 police, a route or order signed by a person authorized 
 
 in this behalf by the police authority. 
 
 Fares j^ayable under this section shall be exempt 
 from passenger duty. AVhere a company has by 
 refusal or neglect to comply with an order of the 
 Board of Trade or the Railway Commissioners lost 
 the benefit of this Act, that company shall, until its 
 compliance is certified as in this Act provided, be 
 exempt from the provisions of this section, but shall 
 be bound to convey all such persons and things as 
 mentioned in this section on the same terms as if this 
 Act had not been passed. (46 & 47 Vict. c. 84, s. 6. 
 See ante, Art. 295.) 
 
 319. (1.) If at any time the Board of Trade have 
 reason to believe — 
 
 (a) That upon any railway or part of a railway, 
 or upon any line or system of railways, whether 
 belonging to one company or to two or more com- 
 panies, which forms a continuous means of commu- 
 nication, a due and sufiicient proj)ortion of the 
 accommodation provided by such company or com- 
 panies is not provided for passengers at fares not 
 exceeding the rate of one penny a mile ; or 
 
 (b) That upon any railway carrying passengers 
 proper and sufficient workmen's trains are not pro- 
 vided for workmen going to and returning from 
 their work at such fares and at such times between 
 six o'clock in the evening and eight o'clock in the 
 morning, as appear to the Board of Trade to be 
 reasonable ;
 
 442 
 
 THE LAW OF CARRIERS. 
 
 Ch. XVIII. 
 Art. 319. 
 
 then and in either case the Board of Trade may make 
 such inquiry as they think necessary, or may, if 
 requii-ed by the company or any of the companies 
 concerned, refer the matter for the decision of the 
 Railway Commissioners, who shall have the same 
 power therein as if it had been referred to their 
 decision in pursuance of the Regulation of Railways 
 Act, 1873. 
 
 (2.) If on an inquiry under this Act it is proved to 
 the satisfaction of the Board of Trade or the Railway 
 Commissioners, as the case may be, that such proper 
 and sufficient accommodation, or workmen's trains, as 
 aforesaid, are not provided by any railway company, 
 the Board of Trade or the Railway Commissioners, as 
 the case may be, may order the company to provide 
 such accommodation or workmen's trains at such fares 
 as, having regard to the circumstances, may appear to 
 the said Board or the Commissioners to be reasonable. 
 
 (3.) If any company on whom an order is made 
 under this Act to provide proper and sufficient accom- 
 modation or workmen's trains refuse, or, at any time 
 after the expiration of one month from the making 
 thereof, neglect to comply with the order, the Board 
 of Trade shall issue a certificate to that effect to the 
 Commissioners of Inland Revenue, and after the date 
 of such certificate the company shall lose the benefit 
 of this Act and be liable to pay in respect of the 
 fares received after such date the same amount of pas- 
 senger duty as would be payable if the passenger duty 
 had not been varied as provided by this Act, and shall 
 continue so liable in respect of all fares received up to 
 the date at which the Board of Trade certify that the
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 443 
 
 company has complied with the said order. Wliere ch. xviii. 
 
 two or more comj^anies are concernedj the certificate 
 
 shall state whether both or all, or one or more, and 
 which of them is in default. 
 
 (4.) A company on whom an order is made by the 
 Board of Trade under this section may, within six 
 months after the making of the order, appeal to the 
 Railway Commissioners, who shall have the same 
 power in the matter as if it had been originally re- 
 ferred to their decision. 
 
 (5.) The Board of Trade or the Railway Commis- 
 sioners, as the case may be, may rescind or vary any 
 order made by them under this section. (46 & 47 
 Vict. c. 34, s. 3.) 
 
 Under sects. 2, 4, and 5 of that Act, all fares of h/. a mile are 
 exempt from passenger duty, and the limitations which under the 
 previous Acts were attached to the exemption of cheap trains are 
 consequently repealed. 
 
 Under sect. 2, fares exceeding Id. a mile are rendered Hable 
 to a duty of 2 per cent, in heu of the existing duty of 5 per cent, 
 within areas containing not less than 100,000 inhabitants, and 
 certified by the Board of Trade as uihan districts. The Board of 
 Trade have certified certain districts. 
 
 To these reductions of taxation is attached the condition (sect. 3) 
 that if a due proportion of the accommodation afforded by each 
 company is not afforded to passengers at fares not exceeding id. a 
 mile, or if proper workmen's trains are not provided between 6 in 
 the evening and 8 in the morning at such fares and hom-s as the 
 Board of Trade think reasonable, inquiry may be made, and if the 
 company prove to be in default, the above-mentioned reductions of 
 taxation shall be witlidi-awn from that company. 
 
 The above reductions of taxation were made by ParHament in 
 -the belief and trust, justified in most cases by the growth of third
 
 444 THE LA W OF CARRIERS. 
 
 Ch. XVIII. class traffic, and by tlie increase of workmen's trains, that the true 
 ^'^^' ^^^' policy of the companies in the matter of accommodation to the 
 poorer classes of society is consistent with the interests of those 
 classes, and that the future would see a continual increase in the 
 accommodation given to those classes. (See Board of Trade 
 Circular, r2th October, 1883.) 
 
 The Eailway Commissioners have decided one case as to pro- 
 viding proper and sufficient workmen's trains within the meaning 
 of the Act. (See North London Ry. Co. (Did London 4' North 
 Western R>j. Co., 6 Ey. & Ca. Tr. Ca.) 
 
 Since the year 1864, a clause has been inserted in the special 
 Acts of most of the railway companies having a terminus in 
 London, compelling such companies to run cheap trains for bond 
 fide artisans, mechanics, and labourers who have daily business in 
 London. The Acts protect the railway company in case of 
 accidents happening to such passengers, by their liability being 
 limited to 100/. The amount of compensation to be received by 
 such passengers, if injured, is to be determined by an arbitrator 
 appointed by the Board of Trade, and not otherwise. 
 
 320. Any railway company that knowingly lets 
 for hire or otherwise provides any special train for the 
 purpose of conveying parties to or to be present at any 
 prize figlit, or who shall stop any ordinary train to 
 convenience or accommodate any parties attending a 
 prize fight at any place not an ordinary station on 
 their line, are liable to a penalty, to be recovered in 
 a smnmary way before two justices of the county in 
 which such prize fight is held or attempted to be held, 
 of such sum not exceeding 500/., and not less than 
 200/., as such justices determine. (31 & 32 Vict, 
 c. 119, s. 21.) 
 
 One-half of the penalty is to be paid to the party at whose suit
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 445 
 
 the summons is issued, and the other half to be paid to the ch.xviil. 
 
 Art *^20 
 
 treasurer of the county in which the prize fight is held or attempted " 
 to be held, in aid of the county rate. (Ibid.) Service of the simimons 
 on the secretary of the comj^any at his office ten days before the 
 hearing is sufficient to give the justices juiisdiction to hear and 
 determine the case. 
 
 321. Every railway company must provide, and 
 maintain in good working order, in every train worked 
 by it which carries passengers, and travels more than 
 twenty miles without stopping, such efficient means of 
 communication between the passengers and the ser- 
 vants of the company in charge of the train as the 
 Board of Trade may approve. 
 
 If a railway company makes default in compl^dng 
 with this requirement it is liable to a penalty not ex- 
 ceeding 10/. for each case of default. 
 
 Any passenger who makes use of the said means of 
 communication without reasonable and sufficient cause 
 is liable for each offence to a penalty not exceeding 
 51. (31 & 32 Vict. c. 119, s. 22.) 
 
 A train is or is not within this section according to the actual 
 instructions as to stopping given to the company's servants in 
 charge of the train. And, therefore, where the i^rimary cause of 
 an accident to a train, not provided with such commimication, was 
 the breaking of a ^'heel-the (without any negligence on the part 
 of the company or tlieh servants), and several minutes elapsed 
 between the first shock felt by the passengers and the actual 
 disaster resulting in the mischief complained of, it was properly 
 left to the juiy to say — First, what was the efPect of the company's 
 time-tables, taken together with the special instructions given to 
 their servants with regard to the train in question ; and, second, 
 "whether the absence of the statutory precaution was conducive to
 
 446 THE LA W OF CARRIERS. 
 
 Ch. XVIII. tlio accident wliicli occurred. (Blamires v. Lane. 8c York. Ri/. Co., 
 
 Arr ^91 
 
 :^!!ir:l^ L. E. 8 Ex. 28:i ; 42 L. J. Ex. 182.) In that case Blackburn, J., 
 said : "I wisli to leave altogether open what may be the duty of 
 railway companies with regard to trains running for shorter 
 distances than twenty miles." 
 
 822. All railway companies, except the Metro- 
 politan Railway Company, are bound, in every pas- 
 senger train where there are more carriages than one 
 of each class, to provide smoking compartments for 
 each class of passengers, unless exempted by the Board 
 of Trade. (31 & 32 Vict. c. 119, s. 20.) 
 
 Any railway company (including in such term any person or 
 persons who is or are proprietor or proprietors of a railway or of 
 carriages iised for the conveyance of passengers upon a railway) 
 may make application to the Commissioners of Inland Revenue 
 for the grant of a licence or licences for the deahng in and sale of 
 tobacco and snuff by any means, personal, mechanical, or otherwise 
 in any railway carriage of which such company are the proprietors. 
 
 Such application shall be made upon a form to be provided by 
 the Commissioners, and containing such particulars as they may 
 prescribe. 
 
 The licence shall be granted by the Commissioners upon payment 
 in respect of each carriage of the excise duty of five shilhngs and 
 threepence, and shall exj)ire on the fifth day of July after the date 
 thereof. All the enactments relating to the dealing in and sale of 
 tobacco and snuff and excise licences shall be applicable to such 
 carriages and licences, and every carriage in respect of wliich a 
 licence is granted shall be deemed to be " premises" of a dealer in 
 and seller of tobacco within the meaning of the enactments relating 
 to the dealing in and sale of tobacco or snuff. 
 
 If any railway company shall deal in or sell tobacco or snufp, or 
 suffer tobacco or snuff to be dealt in or sold in any railway
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 44:T> 
 
 carriage, without liaving in force a licence authorizing the company Ch.xviil. 
 
 Art 322 
 so to do, such company shall incur a fine of fifty pounds ; and if in '. '- 
 
 any proceedings for the recovery of such fine any question shall 
 
 arise as to the proprietorship of any railway carriage, the proof of 
 
 proprietorship shall lie upon the defendant. (47 & 48 Vict. c. 62, 
 
 s. 12.) 
 
 See byelaw as to smoking, post, p. 479. 
 
 II. — Generally. 
 
 323. It is the duty of a carrier of passengers [who 
 holds himself out to the public generally without ex- 
 ception to carry passengers who offer themselves to be 
 carried] to receive all persons as passengers who offer 
 themselves in a fit and proper state to be carried, pro- 
 vided the carrier has sufficient room in his conveyance, 
 and the passengers are ready and willing to pay the 
 proper and reasonable fare, and to conform to reason- 
 able regulations as to carriage. [Lovett v. Ilobbs, 2 
 Show. 127.) 
 
 Part of the above article is placed in a bracket because it has 
 never been ex^Dressly decided in England, and has always been 
 doubted (independently of the obligation of railway companies 
 under the Railway and Canal Traffic Act, 1854, ante, Art. 314), 
 whether carriers of passengers are bound to receive and cany all 
 persons who offer themselves to be carried, in the same manner as 
 common carriers of goods. (See Brcfherton v. Wood, 3 Bro. & B. 
 54 ; Beneft v. P. <^ 0. Steamboat Co., 18 L. J. C. P. 85.) In 
 America it has been decided that passenger carriers are bound to 
 carry passengers whenever they offer themselves and are ready to 
 pay for their transportation. (See Story on Bailments, 1870, 
 s. 591 ; Angell on Carriers, s. 525.) In Jencks v. Coleman, 2
 
 448 
 
 THE LAW OF CARRIERS. 
 
 Ch.xvill. Sumners R. 221, Story, J., said: "There is no doubt this steam- 
 Art 323 
 '. L boat is a common carrier of passengers for hire, and therefore the 
 
 defendant, as commander, was boimd to take the plaintiff as a 
 
 passenger on board, if he had suitable accommodation, and there 
 
 was no reasonable objection to the character or conduct of the 
 
 plaintiff." 
 
 It is submitted that in England a carrier of passengers is not a 
 common carrier according to the custom of the realm and the 
 common law. In support of this view, the very material difference 
 between the liability of a carrier of goods and a carrier of passen- 
 gers must be remembered ; also the fact that at the times when 
 the custom and the common law had their origin there existed no 
 carrying of passengers. The fii'st case in which the liabihty of 
 carriers of passengers came into question was tried before Lord 
 Kenyon in 1791. That related to a mail coach. 
 
 The cases of Aston v. Heaven, 2 Esp. 533 ; Christie v. Griggs, 2 
 Camp. 79 ; Shar2)e v. Grey, 9 Bing. 457, are authorities to show 
 that a person who conveys passengers onhj is not a common carrier. 
 
 The question whether carriers of passengers are common carriers 
 is not now of practical importance, as sect. 2 of the Railway and 
 Canal Traffic Act, 1854, makes it obligatory on railway companies, 
 who have constituted themselves carriers of passengers, to run 
 trains for the convenience of the public, if necessary. (See ante, 
 Art. 314.) 
 
 It would seem that a common carrier for the caniage of passen- 
 gers may, under certain cii'cmnstances, be indicted for refusing to 
 carry one. {Per Patteson, J., in Pozzi v. S/iij)ton, 1 P. & D. 12.) 
 
 324. A passenger is entitled to accommodation ac- 
 cording to his contract. In tlie absence of express 
 stipulation, a passenger is entitled to all reasonable 
 and usual accommodation. (Story on Bailm.) 
 
 The Railway and Canal Traffic Act, 1854, s. 2, com-
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 449 
 
 pels a railway company to grant all clue and reasonable ch.xviii. 
 
 Art 324 
 
 facilities to passenger traffic. (Ante, Art. 314.) — '■ — '- 
 
 Uj)on an unconditional contract to cany, it seems that a railway 
 company are bound to find room for all. {Hau-croft v. Gt. N. Rt/., 
 21 L. J. Q,. B. 178.) A railway company are bound to find room 
 in every train for every person holding a ticket who presents him- 
 self at a starting station, but at intermediate stations they are 
 allowed to issue tickets conditionally on there being room (see bye- 
 law on the subject, 2^osU P- 479). 
 
 If there is no room in the first train, the railway company are 
 bound to send on the passenger by the next one. (See Art. 156.) 
 
 In Haiccroft v. Gt. N. Rij. Co. {-supra), the plaintiff, intending to 
 go to London and back by the defendants' railway, paid for and 
 received from them the following ticket at Barnsley and went to 
 London with it: — "B. to L. and back. Excursion ticket. To 
 return by the trains advertised for that purpose on any day not 
 beyond 14 days after date hereof." A morning and evening 
 return excursion trains were advertised on the Saturdays, but they 
 were not advertised to go to B. On a Saturday morning within 
 the fourteen days, the plaintiff presented himself at the L. station 
 in time for the morning return train. It became full, so that the 
 plaintiff could not find room in it, and it would have been 
 dangerous to have added other carriages to it. The company 
 refused to let him go by an ordinary train, but kept him waiting 
 until the evening return train, in which he found a place. That 
 train took him only to D., where he arrived on Sunday morning. 
 No trains ran from J), to B. on Sundays. The line from D. to B. 
 belonged, not to the defendants, but to another company. The 
 plaintiff hii-ed a carriage to take him from I), to B., and brought 
 an action to recover the expense from the defendants. It was held 
 that by the terms of the excm-sion ticket and advertisements, the 
 defendants contracted to carry the plaintiff back to B. on any day 
 within the fourteen days that he might choose, and by any of the 
 advertised trains that he might select; that not sending him by 
 
 M. G G
 
 450 THE LA W OF CARRIERS. 
 
 Ch. XVIII. the morninff train was a breacli of contract, and that taking him 
 
 Art. 324 . . . 
 
 '. '- only to D., instead of to B., without previous notice, was a second 
 
 breach, Patteson, J., said: "If it had been brought to the 
 knowledge of the 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 
 refused to take him by the morning train. In that, indeed, they 
 were right, because the train was too full to allow him to be carried 
 with safety. But if they put him off, and kept him until the 
 evening, they should have made some special provision for carrying 
 him on to Barnsley at once. I do not think that they had any 
 right to keep him in London until the 9 h. 45 m. evening train. 
 They should have sent another train. The case finds that they 
 might have done so without danger." 
 
 The evil of overcrowding of railway carriages is one which there 
 is no efficient procedure at present to prevent. The duty to receive 
 passengers upon a tender of the fare, if there be sufiicient room, in- 
 volves that he shall not be overcrowded after he has paid his fare 
 and taken his seat, and be thereby, as it were, expelled. (Oases 
 in Angell, p. 470.) The railway companies have a bye-law which 
 enacts that " any passenger persisting in entering a carriage or com- 
 partment of a carriage containing the full number of persons which 
 it is constructed to convey, when any such person objects to his so 
 entering the carriage or compartment," is subjected to a penalty; 
 and by another bye-law, if a passenger, in consequence of there 
 being no room in the train, or in the class of carriage for which he 
 has taken a ticket, " travel in a class of carriage inferior to that for 
 which he has a ticket, the fare or difference of fare shall be imme- 
 diately returned on application to any passenger for whom there 
 is not room as aforesaid, if the application be made before the de- 
 parture of the train." (See these bye-laws, 230st, pp. 479, 481.) 
 
 In the case of Jackson v. Met. Ry. Co. (3 App. Cas. 193 ; 47 
 L. J. U. B. (H. L.) 303), the plaintiff was a passenger in a 
 railway carriage, when three persons got in beyond the number it
 
 CA BETA GE OF FA SSENGEES B Y RA IL ]VA Y. 451 
 
 was constructed to cany, and remained standing in it until the ch. xviir. 
 train arrived at tlie next station, where, the platform being ^^^' ^^^' 
 crowded, a rush was made for places, and, notwithstanding that there 
 were these three extra persons in the carriage, the door was opened, 
 and others tried to get in. The plaintiff rose from his seat and 
 raised his hand to prevent them, when the train moved on, and the 
 plaintiff fell forward with his hand on the hinge of the door. At 
 that moment a porter pushed away the people who were trying to 
 get in, and slammed the door, crushing the plaintiff's thumb. 
 There was no evidence that a complaint of the overcrowding had 
 been made to the railway officials, or that they knew of the fact. 
 It was held by the House of Lords that there was no evidence of 
 negligence proper to be left to a jury. 
 
 Bramwell, L. J., said : " No doubt by doubling the number 
 of carriages, by letting passengers on to the platform one by 
 one, by stopping at each station five minutes, by having a porter 
 for every carriage or two, or perhaps ten, it would be possible 
 to prevent persons getting into carriages where there was no seat 
 for them. But with the precautions to ensure this, to make it 
 absolutely certain, the traffic must stop. It would not pay the 
 defendants to carry it on, nor be worth while for the public to 
 make use of it. All that the public has a right to expect, all that 
 the defendants undertake for, is that which is consistent with 
 practically working the railway. Does the intrusion of three men 
 in a carriage already full afford any evidence that there is any 
 failure of what is practically possible in the management of the 
 railway ? I say no. I do not believe that anyone in his conscience 
 would say that he would censure or reprimand either the directors 
 or manager of the company, or the porters at a particular station, 
 on its being proved that three persons at that station had got into 
 a carriage already full. How is it to bo avoided? How can the 
 porters see that a carriage into which the people are getting is 
 full?" 
 
 In Chitty and Temple on Carriers, p. 2o2, it is said that " a 
 passenger is entitled to sufficient room and accommodation ; and 
 
 GG 2
 
 452 THE LAW OF CARRIERS. 
 
 Ch. XVIII. if more than tlie legal number are taken on a coach, he may 
 
 - '. 1 refuse to occupy his seat, and may recover all expenses incurred 
 
 in performing his journey by other conveyances." 
 
 325. The contract with a railway company is made 
 by 2)ayment of money by the passenger in exchange 
 for a ticket which operates as a receipt for the money, 
 and specifies to some extent the particulars of the 
 contract undertaken. 
 
 The contract into which a railway company enters 
 with a passenger by giving him a ticket between two 
 places is the same whether the journey be entirely 
 over their own line or partly over the line of another 
 company. {G. W. Rtj. Co. v. Blake, 31 L. J. Ex. 346 ; 
 TJiomas v. Rlujimmj Ry. Co., L. R., 6 Q. B. 266 ; 39 L. J. 
 Q. B. 141 ; 2^ost, p. 486.) 
 
 A railway company which grants a ticket to an in- 
 tended passenger impliedly undertakes to provide a 
 train to forward him within reasonable time, and with 
 reasonable speed. 
 
 When a passenger ticket is expressed to be "issued 
 subject to regulations in the time-table," such regula- 
 tion or conditions become part of the contract between 
 the passenger and the company. [McCartan v. N. E. 
 Ry. Co., 54 L. J. Q. B. 441 ; Lc Blanche v. L. ^' N. W. 
 Ry. Co., 1 C. P. D. (C. A.) 286 ; 45 L. J. C. P. D. 
 (App.) 521 ; Woodgate v. G. W. Ry. Co., 51 L. T. 826 ; 
 33 W. P. 428.) 
 
 It was decided, in the case of Hurst v. G. W. Ry. Co. (34 L. J. 
 C. P. 265), that the mere granting of a ticket does not impose on 
 a railway company the obligation to have a train ready to start at 
 
 II
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 453 
 
 a definite time. In that case the plaintiff was non-suited because Ch. xviii. 
 
 Art 325 
 he did not put in evidence the time-tables of the company. The '■ '- 
 
 facts were these : — 
 
 The plaintiff took a ticket from the defendants from C. to N. ; 
 the plaintiff, after waiting a long time, was told by a porter that 
 the train was late in consequence of an accident, and the train 
 eventually arrived an hour and a half late. The consequence was 
 that the plaintiff was too late for the train at Gr., which would have 
 carried him on to N. The time-table was not put in, but only 
 some correspondence, in which the defendants repudiated their 
 liability on the ground that, by the time-tables, they gave notice 
 they would not be liable for the trains not keeping time. It was 
 held that there was no evidence of a cause of action. 
 
 Erie, 0. J., said: "No special contract 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." 
 
 326. The publication of time-tables amounts to 
 a promise by the railway company that the trains 
 will run as therein advertised, and subject to the terms 
 and conditions therein stated, for the conveyance of 
 any person wlio regularly applies for a ticket and 
 tenders the proper fare. 
 
 The publication of time-tables amounts to a contract 
 by the publishing company that not only their own 
 trains but the trains of other comj^anies will run in 
 conformity therewith. [Denton v. G. N. By. Co.^ 25 
 L. J. Q. B. 129 ; IIiirstY. G. W. Bij. Co., 34 L. J. C. P. 
 264; 19 C. B. (N. S.) 310.) 
 
 In Denton'' s Case, in the printed and published time-tables of the 
 defendants for the month of March, 1855, which were kept in cir- 
 culation throughout the month, a passenger train was advertised to
 
 454 
 
 THE LAW OF CARRIERS. 
 
 Ch. XVIII. leave the defendants' station in London at 5 p.m., and to arrive at 
 
 Art ^2fi 
 
 ' reterborough at about 7.20 the same evening, and about the same 
 
 time to proceed on to Hull, arriving at Hull about midnight. The 
 time-tables contained the following notice: — "The companies make 
 every exertion that the trains shall be punctual, but their arrival 
 or departure at the time stated will not be guaranteed, nor will the 
 companies hold themselves responsible for delay or any conse- 
 quences arising therefrom." The defendants' line of railway ex- 
 tended as far as A. beyond Peterborough, but they had running 
 powers over the L. & Y. Railway to M., where the N. E. Railway 
 Company's line joined ; and under the Eailway Clearing Act, 1850, 
 the defendants had for some time been issuing tickets with which 
 passengers were conveyed, as advertised, from Peterborough to 
 Hull. But, on the 1st of March, the N. E. Eailway Company 
 discontinued to run their train, having given previous notice to the 
 defendants, but not imtil after their time-tables had been printed 
 and published, and in consequence the defendants were no longer 
 able to issue tickets by the train as advertised. Relying on the 
 time-tables, the plaintiff left London on the 25th of March for 
 Peterborough, on business, intending to go on to Hull the same 
 evening. He accordingly applied to the clerk at the Peterborough 
 station in proper time for a ticket by the train advertised to leave 
 for Hull about 7.20 p.m., and offered to pay the fare; the clerk, 
 however, refused to grant the ticket, stating as a reason the N. E. 
 Railway Company having discontinued their train as before. The 
 plaintiff then took a ticket and proceeded as far as the M. Junction, 
 where he was obliged to remain that night, and, it was admitted, 
 had in consequence sustained a pecuniary loss. It was held by 
 Campbell, C. J., Wightman, J., and Crompton, J., first, that for 
 the reasons stated in this article, the defendants were liable to the 
 plaintiff for a breach of contract. Secondly, that by continuing 
 the publication of the time-tables throughout the month of March, 
 the defendants were also liable for the loss to the plaintiff, caused 
 by a false representation knowingly made. And, jjer Crompton, J., 
 that an action would lie against the defendants for a breach of duty
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 455 
 
 in refusing to take the plaintiff to Hull as advertised. Lord Camp- Ch. xviil. 
 Lell, 0. J., said, " It seems to me that railways would not be that ' 
 benefit and accommodation to the public which we find them to be, 
 if the representations made in their time-tables ai-e to be treated as 
 so much waste paper, and not considered as the foundation for a 
 contract." And Wightman, J., "It is said that the company 
 would be made liable, though prevented by some inevitable acci- 
 dent from running the train ; but it seems to me such a liability is 
 prevented, and that the case would then come within the limitation 
 in the time-tables, that the company would not be responsible for 
 delay, or any consequences arising therefrom." Crompton, J., in 
 the course of his judgment said, " I think the statement Avas made 
 at any moment during the time the time-tables were continued, 
 and the defendants therefore held out a false representation to the 
 public, by which the plaintiff sustained damage. I also think 
 they would be liable for a breach of their duty in not carrying the 
 plaintiff as a passenger, as they have held themselves out to do. 
 They could not properly refuse to carry a person offering himself 
 as a passenger, and ready to pay his fare ; and it would be a serious 
 inconvenience if, holding themselves out as common carriers, the 
 company were not bound to carry passengers. I entertain some 
 doubt as to how far the liability of the defendants can be rested 
 upon contract. I prefer resting my judgment on the duty and 
 obligation of the defendants as common carriers by which they 
 were bound to carry the plaintiff." 
 
 327. The promise of a railway company, as ex- 
 pressed in their time-tables, amounts to no more than 
 an midertaking to use reasonable diligence to ensure 
 punctuality. 
 
 The words '' every attention will be paid to ensure 
 punctuality as far as practicable " in the time-tables of 
 a railway company import a contract to use due atten- 
 tion to keep tlie times specified in the time bills as far
 
 456 THE LAW OF CARRIERS. 
 
 ch. XVIII. as practicable, having regard to the necessary exigen- 
 — - — - cies of the traffic and circumstances over which the 
 
 comjDany have no control. (Le Blanche v. L. 6f N. W. 
 
 Eij. Co., 1 C. P. D. (C. A.) 286 ; 45 L. J. C. P. D. 
 
 (App.)521.) 
 
 In that case the plaintiff had taken a ticket at defendants' station 
 in Liverpool for Scarborough, via Leeds. In consequence of delay 
 on the journey plaintiff arrived at Leeds after the ordinary train 
 had left, and, though travelling for pleasure only, he took a special 
 train thence to Scarborougli. In an action to recover the cost of 
 the special train, the Cornet of Appeal held, (1) that the facts and 
 documents which formed the contract were the taking and granting 
 of the ticket, the ticket, the time-table, and the conditions. The 
 conditions referred to were, amongst others, these : — " Time Bills. 
 The pubhshed train bills of this company are only intended to fix 
 the time at which passengers may be certain to obtain their tickets 
 for any journey from the various stations, it being understood that 
 the trains shall not start before the appointed time. Every atten- 
 tion will be paid to ensure punctuality as far as it is practicable ; 
 but the directors give notice that the company do not undertake 
 that the trains shall start or arrive at the time specified in the bills, 
 nor will they be accountable for any loss, inconvenience, or injury 
 which may arise from delays or detention. The right to stop the 
 trains at any station on the line, though not marked as a stopping 
 station, is reserved. The granting of tickets to passengers to places 
 off the company's line is an arrangement made for the convenience 
 of the public, but the company do not hold themselves responsible 
 for any delay, detention, or other loss or injury whatsoever arising 
 off their lines or from the acts or defaults of other parties, nor for 
 the correctness of the times over the lines of other companies, nor 
 for the arrival of this company's own trains in time for the nominally 
 corresponding train of any other company." The Court further 
 held, (2) that the defendants thereby contracted to make every 
 reasonable effort to ensure punctuahty ; (3) that although a delay
 
 CARRIA(^E OF PASSENGERS BY RAILWAY. 457 
 
 of a few minutes would not be evidence of a want of reasonable ch, xviii. 
 effort, yet a long or unusual delay was evidence calling upon the — ^^__ 
 company to show that it arose in spite of such reasonable effort, 
 and that there was evidence that such delay was the cause of the 
 plaintiff's missing the corresponding train at Leeds ; (4) that the 
 cost of the special train was not recoverable as damages. 
 
 Lord Justice James in giving judgment observed : — 
 
 " I am of opinion that the company are not entitled to strike 
 out from the contract the words, ' but every attention will be given 
 to ensure punctuality, so far as is practicable,' and to treat this as 
 a mere vague assurance, having no legal operation, involving no 
 legal responsibility, but only a responsibility to public opinion, to 
 be enforced by letters to the ' Times ' or a local journal. I agree, 
 however, that is to be read in connection with the very clear stipu- 
 lations that the company are not to be accountable for any loss, 
 inconvenience, or injury which may arise from delays or deten- 
 tion. ... If we consider the immense extent and complication 
 of a modern railway system and net work in England, it would be 
 most unreasonable to put a construction on such a document as the 
 one before us, which would enable any passenger delayed any- 
 where to put the whole traffic arrangements, tlie conduct of the 
 whole railway staff, on its trial before a judge and jury." 
 
 Cleasby, B., in that case said : — 
 
 " Without saying that in no case whatever could the traveller 
 charge the expenses of a special train as part of his damages, I feel 
 justified in expressing my opinion that every person disappointed 
 through some default of the company in catching a particular train 
 would not be entitled, as a matter of law, to reinstate himself, as 
 nearly as he could, by means of a special train." 
 
 A railway company are not bound to forward by special train a 
 passenger failing to catch a train on their own line by reason of 
 the ordinary train being dclaj'ed by no fault of the company. 
 [FiizgcraM v. MUUancl By. Co., 34 L. T. 77L) In that case the 
 plaintiff took a ticket from B. to L., by a train which was adver- 
 tised to arrive at L. at 10.10 p.m. Between B. and D. the train
 
 458 THE LAW OF CARniEBS. 
 
 Ch. XVIII. was delaj'ed by the floods, and consequently failed to catcli the 
 
 '- '- corresponding train from D. to L. On arriving at D. the plaintiff 
 
 found that no other train would go to L. that night. The plaintiff 
 claimed to recover damages from the railway company for breach 
 of an absolute contract to carry from B. to L. on the day when 
 the ticket was taken. The Court held that the railway company 
 had only contracted to use due diligence to reach J), in time to 
 catcli the corresponding train to L., and that as they had failed to 
 do so from unavoidable causes they were not bound to forward the 
 plaintiff by special train. 
 
 A passenger took a tourist ticket from a railway company on 
 the faith of their programme of tourist ticket arrangements. On 
 the back was printed, " This ticket is subject to the regulations and 
 conditions stated in the company's time tables and bills." The 
 monthly time bill stated that the company did not " hold itself 
 responsible for any delay, detention, &c., 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." The passenger was 
 detained by the lateness of another company's train. It was held 
 that he was bound by the monthly time-table, and could not recover 
 the expenses incurred through such detention. {Thompson v. Mid- 
 land Ry. Co., 34 L. T. 34.) 
 
 In the common stipulation on railway tickets, that the company 
 shall not be liable for any delay in the starting or arrival of trains 
 arising from accident or other cause, the words " other cause " 
 mean " other cause in the nature of accident," and not " any cause 
 whatever." {Buchnastcr v. G. E. By. Co., 23 L. T. 471.) 
 
 A railway company cannot absolve itself from the results of 
 negligence in not starting a train by stating on the time-tables 
 that the company will not " hold itself responsible for delay or any 
 consequences arising therefrom." {Ibid.) 
 
 In that case the plaintiff recovered the cost of a special train and 
 damages for loss of market. He was a miller, the holder of a season 
 ticket between Framlingham in Suffolk, and London, and was in 
 the habit of going to London twice a week to the Mark Lane Corn
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 459 
 
 Market, by a train wliicli was advertised to depart at 6.45 a.m., and to ch. xviii. 
 
 Art 327 
 
 reach London at 10.40 a.m. The corn market opened at 11 o'clock. ' L 
 
 On the occasion in question, although the train and engine were at 
 the platform, steam was not up, and the train could not proceed. 
 He obtained a special train, but did not reach London until after 
 12 o'clock, and was too late for the market. The company relied 
 upon the notice in the time-tables {ante, p. 454), and upon the 
 following statement upon the season ticket : — " This ticket is 
 issued subject to the provisions of the company's bye-laws, rules, 
 and regulations in force during its term. It is also issued on the 
 condition that the company shall not be liable in respect of any 
 alteration of trains, or any delay in the starting or arrival of 
 trains arising from accident or other cause during its term." The 
 Court held that " other cause " meant " other cause of accidental 
 kind." 
 
 In consequence of tlie decision in Le Blanche v. L. 8f N. W. Ey. 
 Co. {a)ifc, p. 456), the Great Western Eailway made a condition 
 that they would not bo liable for loss or inconvenience or delay 
 unless due to wilful misconduct of their servants, and the Court 
 held that such a condition was not unreasonable. When a through 
 train arrives at a junction too late to enable a passenger to catch 
 the train running in connection, it is not wilful misconduct of the 
 company's servants to refuse to send the passenger on by a special 
 train if, having regard to the condition of the line and the safety 
 of other passengers, they consider it their duty to refuse. ( Wood- 
 gate v. O. W. By. Co., 51 L. T. 82G ; 33 W. E. 428.) 
 
 It would appear from that case that if a company, knowing 
 that their line was blocked, issued a ticket to a passenger for 
 a through train, he might hold them liable for misrepresen- 
 tation, and that personal inconvenience without pecuniary loss 
 might be a ground for damages if the company's liability was 
 established. 
 
 The fact that a railway company has paid the demand of 
 another passenger for inconvenience from delay cannot be used 
 against them as an admission of liability. {Ibid.) Unpunctuality
 
 460 THE LAW OF CARRTEBS. 
 
 Ch. xvill. ^-{w not entitle the passens-er to rescind the contract and recover 
 Art. 327. . ^ ^ 
 back his fare. 
 
 In McCartan v. N. E. By. Co. (54 L. J. U. B. D. 441), the 
 
 Court held that the true construction of the conditions in that 
 
 railway company's time-tables was that they refused to guarantee 
 
 the punctuality of their trains according to the times mentioned 
 
 in the tables, from whatever cause the irregularity or want of 
 
 pimctuality might arise. 
 
 328. If a railway company fail to cany a passenger 
 to the station for which he has duly taken a ticket, 
 according to their contract, he may incur the reason- 
 able expense of travelling there, and claim from tlie 
 company as damages for their breach of contract the 
 expense of getting there by other means, if there be 
 any, or compensation for the trouble and inconveni- 
 ence of walking there, if tlierc be no other means of 
 getting there ; but he is not entitled to claim compen- 
 sation for an accidental injury or illness occasioned to 
 him in the course of reaching his destination by such 
 means, for such consequences are neither the proxi- 
 mate consequence of the breach of contract nor within 
 the contemplation of the parties at the time of con- 
 tracting. {Hamlin v. Gt. Northern Btj. Co., 26 L. J. 
 Ex. 20 ; 1 H. & N. 408 ; Hohhs v. L. cV S. W. By. Co., 
 L. R. 10 Q. B. Ill ; 4.1 L. J. Q. B. 49; Le Blanche v. 
 L. ^ N. W. Bij. Co., 1 C. P. D. 286 ; 45 L. J. C. P. 521.) 
 
 Damages for delay of a passenger are recoverable on the principle 
 that if the party bound to perform a contract do not perform it, 
 the other party may supply the performance as nearly as he can , 
 and charge as damages the reasonable expense incurred in so doing. 
 (See Leake on Contracts, p. 1050.)
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 461 
 
 In Le Blanche v. L. 4' N. IF. Ri/. Co. {ante, p. 456), Lord Ch. xviii. 
 
 Justice Mellisli said : " I think that any expenditure which, 
 
 according to the ordinary habits of society, a person who is 
 delayed on his journey would naturally incur at his own cost, 
 if he had no company to look to, he ought to be allowed to incur 
 at the cost of the company, if he has been delayed through a 
 breach of contract on the part of the company ; but that it is 
 unreasonable to allow a passenger to put the company to an 
 expense to which he could not think of putting himself if lie had 
 no company to look to." 
 
 Whether a passenger is justified in taking a special train to 
 remedy a delay caused by the unpunctuality of the railway com- 
 pany, depends upon the circumstances of each particular case. 
 (See note to Art. 327.) 
 
 Loss occasioned to a passenger prevented from attending business 
 engagements by unreasonable delay in carrying him to his destina- 
 tion cannot be recovered against a railway company, as such 
 damage is too remote. [Hamlui v. Gt. N. Rij. Co., supra ; Ilobbs 
 V. L. 4' >S'. W. R>j. Co., supra.) 
 
 In Hohbs's case the plaintiff, with his wife and two children of 
 five and seven years old respectively, took tickets on the defen- 
 dants' railway from Wimbledon to Hampton Court by the mid- 
 night train. They got into the train, but it did not go to 
 Hampton Court, but wont along the other branch to Esher, where 
 the party were compelled to get out. It being so late at night the 
 plaintiff was unable to get a conveyance or accommodation at an 
 inn, and the party walked to the plaintiff's house, a distance of be- 
 tween four and five miles, where they arrived at about three in the 
 morning. It was a drizzling night, and the wife caught cold, and 
 was laid up for some time, being unable to assist her husband 
 in his business as before, and expenses were incurred for medical 
 attendance. In an action to recover damages for the breach of 
 contract, the jury gave 28/. damages, viz., 8/. for the inconvenience 
 suffered by having to walk home, and 20/. for the wife's illness 
 and its consequences. It was held, as to the 8/., that the plaintiff
 
 462 THE LAW OF CARRIERS. 
 
 Ch. XVIII. was entitled to damages for the inconvenience suffered in conse- 
 ^^^' ^^^' quence of being obliged to walk borne ; but as to the 20/., that the 
 illness and its consequences were too remote from the breach of 
 contract for it to be given as damages naturally resulting from it. 
 Cockbum, C. J., said: "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 
 compensate for the inconvenience which the absence of means 
 causes."
 
 ( 463 ) 
 
 CHAPTER XIX. 
 
 THE OBLIGATIONS OF A EAILWAY COMPANY AS TO PASSENGER 
 FARES AND BYE-LAWS. 
 
 I. Eailway Fares. 
 
 Articles 
 
 1. Railway Fares chargeable 329 
 
 2. List of Fares to be exhibited (31 ^' 32 Vict. c. 119, s. 15) 330 
 
 3. Penalty for travelling with intent to avoid payment of fare (8 Vict. 
 
 c. 20, s. 103) 331 
 
 II. Eailway Bye-laws. 
 
 4. Power to make Regulations by Bye-laws 332 
 
 5. Bye-laws and Regulations approved by the Board of Trade .... 333 
 
 Art. 329. 
 
 I. Railway Fares. 
 329. A raihvay company may use and employ ch. xix. 
 locomotive engines and carriages to be drawn thereby 
 to carry and convey upon the railway all such pas- 
 sengers as shall be offered to them for that pm-posc, 
 and make such reasonable charges in respect thereof 
 as they may from time to time determine upon, not 
 exceeding the fares by the special Act authorized to 
 be taken by them. (8 Vict. c. 20, s. 86.) 
 See Art. 212. 
 A railway company have power to vary their passenger fares,
 
 464 THE LAW OF CARRIERS. 
 
 Ch. XIX. iirovicled they cliare-e tlie same to all, and do not exceed tlie max- 
 Art. 329. ^ -^ " ' 
 '■ '- imum sums authorized by their special Acts. (8 Yict. c. 20, s. 90.) 
 
 See Ai-t. 213. 
 
 Where two railways are worked by one company, then, in the 
 calculation of tolls and charges for any distances in respect of 
 passenger traffic conveyed on both railways, the distances traversed 
 shall be reckoned continuously on such railways as if they were one 
 railway. (31 & 32 Vict. c. 119, s. 18.) 
 
 As to the jmisdiction of the Eailway Commissioners over 
 passenger fares, see Chapters XIII., XIV., and XV. 
 
 330. " Every company shall cause to be exhibited 
 in a conspicuous place in the booking office of each 
 station on their line a list or lists, painted, printed, or 
 wiitten in legible characters, containing the fares of 
 passengers by the trains included in the time-tables 
 of the company from that station to every place for 
 which passenger tickets are there issued." (The Regu- 
 lation of Railways Act, 1868, 31 & 32 Vict. c. 119, 
 s. 15.) 
 
 Where an aggregate sum is charged by the railway company for 
 conveyance of a passenger by a steam vessel and on the railway, the 
 ticket is to have the amount of toll charged for conveyance by the 
 steam vessel distinguished from the amount charged for conveyance 
 on the railway. (31 & 32 Vict. c. 119, s. 16. Ante, Art. 263.) 
 
 Upon complaint by the D. Steam Packet Company that the 
 N. W. Eailway Company had not complied with sect. 16 of the 
 Regulation of Railways Act, 1868, which enacts {inte)' alia) that 
 " where an aggregate sum is charged by the company for convey- 
 ance 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 convey- 
 ance on the railway," it was admitted by N. W. Railway Com-
 
 CARRIAOE OF PASSENGERS BY RAILWAY. 465 
 
 pany to be so, but as the D. Steam Packet Company did not show Ch. xix. 
 
 Art 330 
 that such non-compliance had caused any damage to themselves, ^ - 
 
 the Commissioners made no order. {City of Buhlin Steam PacJxct 
 
 Co. V. L. 8^' N. W. Eij. Co., 4 Ey. & Ca. Tr. Ca. 10.) 
 
 331. '' If any person travel or attempt to travel in 
 any carriage of the company, or of any other company 
 or party using the railway, without having previ- 
 ously paid his fare, and with intent to avoid payment 
 thereof, or if any person, having paid his fare for a 
 certain distance, knowingly and wilfully proceed in 
 any such carriage beyond such distance, without pre- 
 viously paying the additional fare for the additional 
 distance, and with intent to avoid payment thereof, 
 or if any person knowingly and wilfully refuse or neg- 
 lect, on arriving at the point to which he has paid his 
 fare, to quit such carriage, every such person shall for 
 every such offence forfeit to the company a sum not 
 exceeding 40-5." (8 Vict. c. 20, s. 103.) 
 
 The offence under this section is a criminal offence, and the 
 penalty recoverable under the section is not a "civil debt" within 
 the terms of sect. 6 of the Summary Jiu^isdiction Act, 1879 ; nor 
 do the provisions o£ sect. 35 of that Act apply in such a case. The 
 magistrate may, on conviction and non-payment, issue a distress 
 warrant under sect. 14G of the Eailways Clauses Consolidation Act, 
 1845, and if sufficient distress is not found, shall imprison the 
 defendant under sect. 147. {R. v. Paget, 8 Q. B. D. (C. A.) 151; 
 51 L. J. M. C. 9.) 
 
 A long series of decisions has cut down the application of this 
 section to cases of fraud strictly so called. {Dearden v. Toicnshend, 
 L. R. 1 Q. B. 10.) In that case, the passenger took a return 
 ticket from E. to S. and back. He travelled to S. ; but, on the 
 
 M. II H
 
 4GG THE LAW OF CARRIERS. 
 
 Ch. XIX. return journey, instead of getting out at E., lie proceeded as far as 
 
 '. L N., without obtaining a fresh ticket. On getting out at N., he 
 
 delivered up the ticket, explained the circumstances to the guard, 
 and tendered the difference of the fare. It was held that he could 
 not be convicted of the statutory offence, there having been no 
 intent to defraud. 
 
 In R. v. Fi-ere (24 L. J. M. C. 68 ; 4 E. & B. 598), it was held 
 that a passenger who takes a ticket for the longer distance and gets 
 out at an intermediate station is not thereby guilty of an offence 
 within sect. 96 of the Railways Clauses Act, even though his 
 object in so acting was to avoid payment of the larger fare. 
 Railway companies, by printing on their tickets or otherwise that 
 tickets are available only for the stations marked upon them, 
 can make a special contract to that effect. See Steivarf v. L. 8f W. 
 W. By. Co. (33 L. J. Ex. 199 ; 3 H. & 0. 135). 
 
 " Without having paid his fare " means the fare for the class by 
 which the passenger travels. A passenger who, with a second or 
 third class ticket, travels in a superior class with intent to defraud, 
 is liable to be convicted under this section. [GiUingham v. Walker, 
 44 L. T. 715 ; 29 W. R. 896.) 
 
 A., who was travelling on the Gr. W. Railway in a train going to 
 N., produced the "forward half" of a tourist return ticket from L. 
 to N. and back. This ticket had been originally issued to another 
 person, and was stated on the back thereof to be non-transferable. 
 The original taker had used the ticket as far as H. on the way 
 from L. to N., but then proceeded on a different route, and conse- 
 quently, not having given up the forward half of the ticket, sold it 
 to A., who was travelling with it between H. and N. The Court 
 held that A. was liable to be convicted under 8 & 9 Yict. e. 20, 
 s. 103, for travelling without having previously paid his fare with 
 intent to avoid payment thereof. [Lanrjdon v. Hoicells, 4 Q,. B. D. 
 337; 48L. J. M. C. 133.) 
 
 II
 
 CARRIAGE OF PASSENGERS BY RAILWA Y. 467 
 
 Ch. XIX. 
 
 II.— Railavay Bye-laws. ^^^- ^^^- 
 
 332. By the Railways Clauses Act, 1845, railway 
 companies are empowered from time to time, subject 
 to the provisions of that and the special Act of the 
 company, to make regulations for the following pur- 
 poses : — 
 
 For regulating the mode by which, and the speed 
 at which, carriages using the railway are to be 
 moved or propelled ; 
 
 For regulating the times of the arrival and de- 
 parture of any such carriages ; 
 
 For regulating the loading or unloading of such 
 carriages, and the weights which they are respec- 
 tively to carry ; 
 
 For regulating the receipt and delivery of goods 
 and other things which are to be conveyed upon 
 such carriages ; 
 
 For preventing the smoking of tobacco, and the 
 commission of any other nuisance in or upon such 
 carriages, or in any of the stations or premises occu- 
 pied by the company ; 
 
 And, generally, for regulating the travelling upon, 
 or using and working of the railway. But no such 
 regulation shall authorize the closing of the railway, 
 or prevent the passage of engines or carriages on the 
 railway at reasonable times, except at any time when, 
 in consequence of any of the works being out of re- 
 pair, or from any other sufficient cause, it shall be 
 necessary to close the railway, or any part thereof. 
 (8 Vict. c. 20, s. 108.) 
 
 11112
 
 468 THE LA W OF CARRIERS. 
 
 An ^3^32" ^^^^ ^^^^ ^^^^ better enforcing the observance of such 
 
 regulations, the companies are empowered, subject to 
 the provisions of 3 & 4 Vict. c. 97, to make bye-laws, 
 and from time to time to repeal or alter such bye-laws, 
 and make others, provided that such bye-laws be not 
 repugnant to the laws of that part of the United 
 Kingdom where the same are to have effect, or to the 
 provisions of that Act or the special Act; and such 
 bye-laws must be reduced into writing, and have 
 affixed thereto the common seal of the company ; and 
 any person offending against any such bye-law is 
 liable to a penalty not exceeding 61. for every offence ; 
 and if the infraction or non-observance of any such 
 bye-law, or other such regulation, be attended with 
 danger or annoyance to the public, or hindrance to 
 the company in the lawful use of the railway, the 
 company may summarily interfere to obviate or re- 
 move such danger, annoyance or hindrance, and that 
 without prejudice to any penalty incurred by the in- 
 fraction of any such bye-law. (Sect. 109.) 
 
 Ko bye-laws made under sect. 109 of the Railways 
 Clauses Act, 1845 (8 Vict. c. 20) are valid unless con- 
 firmed and allowed by the Board of Trade. (3 & 4 
 Vict. c. 97.) 
 
 The approval of the Board of Trade does not prevent an inquiry 
 as to the validity of bye-laws. {B. v. Wood, 5 E. & B. 49.) 
 
 The bye-laws of a railway company made pursuant to these 
 sections are documents of a public nature, and proveable as such. 
 
 Upon an information charging a passenger with an infraction of 
 a bye-law, it was proved that a copy of the bye-laws was affixed in 
 the manner directed by the Act at the two stations respectively at
 
 CARRIAGE OF PASSENGERS BY RATI WAY. 469 
 
 •u'liich the passenger entered and. quitted the carriajye, and it was Ch. xix. 
 
 Art" *^*^9 
 
 held sufficient proof of publication ; and that it was not necessary '■ '- 
 
 to prove further that copies were affixed at every other station on 
 the line. {Mot t cram v. Eastern Counties i?y. Co., 29 L. J. M. C. 
 57.) 
 
 '\\Tiere a bye-law of a railway company imposes certain duties on 
 passengers and lays correlative duties on the company, the company 
 must have strictly complied with the bye-law on their part to entitle 
 them to enforce it against the passenger. {Jcnninrjs v. Gt. N. By. 
 Co., L. Pt. 1 Q. B. 7; 35 L. J. Q. B. 15.) 
 
 333. The following code of bye-laws lias been 
 issued by the Board of Trade, and has been univer- 
 sally adopted by the railway companies. Any varia- 
 tion from this form must have the sanction of the 
 Board of Trade : — 
 
 "BVE-LAWS AKD EeGULATIONS 
 
 " Made by the Eailway Company, with the ap^iroval of the 
 
 Board of Trade, for regulating the travelling upon and using 
 of all railways belonging to, or leased to, the said company, 
 and with respect to which that company have power to make 
 bye-laws. 
 
 ^^OhtaiiiiiKj TlcJcet and ddkerlnej iij) the same. 
 " Xo. 1. 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 authorized 
 servant of the company whenever required to do so for any purpose. 
 Any passenger travelling without a ticket, or failing or refusino- to 
 deliver up his ticket as aforesaid, shall bo required to pay the fare 
 from the station whence the train originally started to the end of 
 his journey."
 
 470 THE LA W OF CARRIERS. 
 
 Ch. XIX. In the very recent ease of Butler v. M. S. Sf L. By. Co. (21 
 ^'^"^^^" Q. B. D. 207; 57 L. J. a B. D. 564), tlie Court of Appeal de- 
 cided that where a railway passenger has taken and paid for his 
 ticket, but has afterwards lost it, and has declined to pay the fare 
 again, the company cannot eject him from the railway carriage, 
 but, assuming the condition to be reasonable (see p. 471), can only 
 take his name and address and sue him for the fare. 
 
 In that case, the ticket issued to the plaintiff incorporated by 
 reference this bye-law. The plaintiff, having lost the ticket, was 
 unable to produce it when required to do so during the journey by 
 one of the defendants' servants. The plaintiff was thereupon 
 required to pay the fare from the station whence the train had 
 started, and, on his declining to do so, was forcibly removed by the 
 defendants' servants from the carriage in which he was travelling, 
 no more force, however, being used than was necessary for his 
 removal. He thereupon sued the defendants for assault. The 
 Court of Appeal held that the contract between the plaintiff and 
 the defendants did not by implication authorize the defendants to 
 remove the plaintiff from the carriage on his failing to produce a 
 ticket and refusing to pay the fare as provided by the condition ; 
 that the defendants were not justified in so removing him; and 
 that the action was therefore maintainable. 
 
 A railway company are not liable in an action for assault and 
 false imprisonment, by reason of one of their servants giving a 
 passenger into custody, if the act is done in contravention of 
 instructions and beyond the scope of the employment. {Walker 
 v. >S'. E. By. Co., L. E. 5 C. P. 640 ; 39 L. J. C. P. 346.) 
 
 A foreman porter, who, in the absence of the station-master, is 
 in charge of a station, has no implied authority to give in charge 
 a person whom he suspects to be stealing the company's property ; 
 and, if he gives in charge on such suspicion an innocent person, 
 the company are not liable. [Edirards v. L. ^ N. W. By. Co., 
 L. E. 5 C. P. 445 ; 39 L. J. C. P. 241.) See ante, Art. 187, as 
 to the authority of a railway company's servants. 
 
 A passenger by a railway carriage was ordered to leave it by
 
 CARRIAGE OF PAiSBENGERS BY RAILWAY. 471 
 
 tlie company's servants under circumstances wliicli did not justify Ch. xix. 
 
 them in what they were doing ; and it appeared that upon leaving L 
 
 the carriage he left a pair of race-glasses upon the seat, which, as 
 the train proceeded without him, were lost. The Court held that 
 the loss of these glasses was not the natural result of the wrongful 
 act, and that the plaintiff could not recover their value. [Glover 
 V. L. 8^ 8. W. By. Co., L. E. 3 Q. B. 25 ; 37 L. J. Q. B. 57.) 
 
 It has heen held in America that passengers on a railway are 
 bound to conform to a regulation of the company requiiing pas- 
 sengers to exhibit their tickets when requested by the conductor ; 
 and if they do not so conform, they may legally be ejected from 
 the train, no unnecessary violence being used. {Ilibhard v. JY. Y. 
 ^ Erie Hi/. Co., 15 N. Y. R. 455.) 
 
 Lord Esher, M. R., in delivering judgment in Bt(tler^s Case (anfe, 
 p. 470), said : " One of such bye-laws and regulations provides that, 
 ' every passenger shall show and deliver up his ticket to any duly 
 authorized servant of the company when required to do so for any 
 pm'pose ; and any passenger travelling without a ticket, or failing 
 or refusing to show or deliver up his ticket as aforesaid, shall be 
 required to pay the fare from the station whence the train originally 
 started to the end of his journey.' I do not think it necessary 
 for the purposes of this case to discuss the question whether that 
 is a valid or reasonable regulation, or how far the plaintiff would 
 be bound by it if unreasonable. It would seem, if the decision in 
 Saunders v. S. E. Ei/. Co. (5 U. B. D. 456) be correct, not to be 
 reasonable. Whenever it becomes necessary we must deal with 
 that question, but I think we may for the present purpose assume 
 that the condition is reasonable. The effect of it is that the pas- 
 senger is under an obligation to show his ticket, when asked to do 
 so, and, if he fails to do so, a certain consequence is to follow, 
 viz., that he must pay the fare from the station whence the train 
 started. But suppose that he refuses to do so, he no doubt breaks 
 his contract ; but does it result that the company's servants may 
 lay hands on him and remove him from the carriage ? I do not 
 think that it does. The remedy is by proceeding against him for
 
 472 THE LAW OF CARRIERS. 
 
 Ch. XIX. the amount of the fare he refuses to pay. Where is there any 
 Art. 333. . . . . 
 contract by which he has agreed that, if he fails to show a ticket 
 
 or to pay the fare mentioned in the regulation, the company may 
 
 lay hands on him and put him out of the carriage by force ? No 
 
 one has any right to lay hands forcibly on a man in the absence 
 
 of some legal authority to do so or some agreement to that effect." 
 
 The case of 8aundcr8 v. 8. E. Ry. Co. (5 U. B. D. 456 ; 49 L. J. 
 Qj. B. 761), referred to in the Master of the Eolls' judgment, was 
 as follows : — 
 
 A bye-law of the defendant company provided " that a pas- 
 senger should show and deliver up his ticket to any duly autho- 
 rized servant of the company whenever required to do so for any 
 purpose ; and that any person travelling without a ticket, or fail- 
 ing or refusing to show or deliver up his ticket as aforesaid, should 
 be required to pay the fare from the station where the train origin- 
 ally started to the end of his journey." The plaintiff had a ticket 
 entitling him to travel on the lines of the defendants and the 
 London and South Western Railway Company from Charing Cross 
 or Cannon Street to Windsor and back. Having come to the 
 Waterloo Junction Station on the defendants' line, where he had 
 to change trains, he had for this purpose to go from the defen- 
 dants' station to that of the London and South Western Eailway 
 Company. On passing out of the defendants' station he was asked 
 to show his ticket, but refused to do so. There was no intention 
 to defraud on the plaintiff's part. The defendants summoned him 
 under the above bye-law, and he was convicted in the amount of 
 the fare from the station whence the defendants' train by which he 
 travelled had started. The Court held that the conviction must be 
 quashed. 
 
 Cockburn, C. J., said : "Assuming that the powers given 
 by the 108th section of the Eailways Clauses Consolidation Act, 
 to make bye-laws for 'regulating the travelling upon or using 
 and working the railway,' applied to persons travelling in the 
 company's carriages, which he was inclined to think it did not, it 
 was not competent to the company by their bye-law to make the
 
 CARRIAGE OF PA^SES^GERS BY RAILWAY. 473 
 
 refusal to show the ticket an offence in the absence of a fraudulent Ch. xix. 
 
 Art 333 
 intention ; secondly, the bye-law was void for unreasonableness, 
 
 because the penalties thereunder for offences of equal criminality 
 
 would vary with the distance from which the train might originally 
 
 have started ; and thirdly, the bye-law was inapplicable to the 
 
 case, as the power to make bye-laws was confined to the case of 
 
 persons travelling on the railway, which the plaintiff was not doing 
 
 when required to show his ticket." 
 
 And Lush, J. : " The bye-law was void for unreasonableness, 
 because the penalty for not showing the ticket varied according to 
 the distance the train had travelled, and also because the passenger 
 was required not only to show, but to deliver up his ticket when- 
 ever required for any purpose." 
 
 It seems that, as against a passenger who has, in good faith, 
 travelled a short distance upon the line without having procured a 
 ticket, this bye-law is unreasonable and void — inasmuch as it is in 
 substance an attempt to inflict a penalty for doing without fraud 
 that which, by the joint operation of sects. 103 and 1U9 of 8 Vict. 
 c. 20, can be punished only if done fraudulently. (Z. and B. Rij. 
 Co. V. Wahon, 4 C. P. D. (App.) 118; 48 L. J. Q. B. D. (App.) 316.) 
 
 A bye-law was made by a railway company, under the powers 
 of their special Act and of 8 Yict. c. 20, in the terms following : — 
 " Any person travelling, without the special permission of some 
 duly authorized 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 
 subject to a penalty not exceeding 406-., 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:" — Held, 
 first, that the bye-law taken as a whole was void, on the ground 
 that the penalty imposed by the latter part was unreasonable. 
 Secondly, that the bye-law was divisible, and that the first j)art of 
 the bye-law omitted the intention to defraud required by 8 Vict. 
 c. 20, s. 103, to constitute the offence. It was therefore repugnant 
 to the statute and invalid. {Dyson v. L. 8f N. W. Bi/. Co., 7 Q. B. 
 D. 32 ; 50 L. J. M. C. 78.)
 
 474 THE LA W OF CARRIERS. 
 
 Ch. XIX. A passenger was convicted in a penalty of 10s. under this bye- 
 
 law for travelling in a first-class carriage with only a second-class 
 
 ticket ; but it was found as a fact that he had no intention to de- 
 fraud the company. The Court held, that the conviction must be 
 quashed, for without deciding whether the bye-law did or did not 
 make proof of the absence of fraudulent intention an exemption 
 from the penalty as well as from the extra fare, it was, if it made 
 the fraudulent intention immaterial in the case of the penalty, 
 repugnant to 8 Vict, c, 20, s. 103, and ultra vires the company. 
 {Bentham v. Hoyle, 3 Q. B. D. 289 ; 47 L. J. M. C. 51 ; and see 
 Barny v. Mid. By. Co., Ir. L. R. 1 0. L. 130.) 
 
 A bye-law was made by a railway company, under the powers 
 of their special Act and of 8 & 9 Vict. c. 20, in the terms follow- 
 ing : — " No passenger will be allowed to enter any carriage 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. . . . 
 Any person travelling without a ticket, or failing or refusing to 
 show or deliver up his ticket as aforesaid, shall be required to pay 
 the fare from the station whence the train originally started to the 
 end of the journey" : — Held, that in order to entitle the railway 
 company to take proceedings before justices under this bye-law, a 
 demand of the specific sum payable in respect of such fare must 
 have been first made to the passenger who refused, or was unable 
 to produce his ticket. {Broicn v. G. E. By. Co., 2 Q. B. D. 406 ; 
 46 L. J. M. C. 231.) 
 
 A bye-law of a railway company ran thus : " Each passenger 
 booking his place will be furnished with a ticket, which he is to 
 show and deliver up when required to the guard, &c.," and " each 
 passenger not producing or delivering uj) his ticket when required 
 is hereby subjected to a penalty not exceeding 406'. ;" and it was 
 held that under this bye-law holders of annual tickets for travelling 
 on the line are bound to produce their tickets to the railway officers 
 as much as ordinary passengers, {Woodard v. Eastern Counties 
 By. Co., 30 L. J. M. C. 196.) 
 
 In Jenninijs v. Gt. N. By. Co. (L. R. 1 Q. B. 7 ; 30 L. J. Q. B.
 
 CARBIAGE OF PAB^ENGEBB BY BAIL WAY. 475 
 
 15), the bye-law was as follows : — " No passenger shall be allowed to Ch. xix. 
 
 Art. 333. 
 
 enter any carriage without having first paid his fare and obtained 
 
 a ticket. Each passenger on payment of his fare will be furnished 
 with a ticket, which such passenger is to show when required, and 
 to deliver up, before leaving the company's premises, upon demand." 
 The plaintiff took tickets for himself, his servants, and horses, by a 
 particular train, on the defendants' railway. The train was after- 
 wards divided into two. The plaintiff travelled in the first train, 
 taking all the tickets with him. When the second train with the 
 servants and the horses was about to start, the plaintiff's servants 
 were required to produce their tickets, and on their being unable 
 to do so, the defendants refused to carry them. The Court held, 
 in an action by the plaintiff for not carrying his servants, that as 
 the defendants contracted with the plaintiff, and delivered the 
 tickets to him, and not to the servants, the defendants could not 
 under the bye-law justify their refusal to carry. 
 
 A railway company's regulations sometimes provide that the 
 ticket office shall be closed a certain time before the starting of each 
 train. Such regulations are reasonable as tending to obviate con- 
 fusion. 
 
 Lords Ardmillan and Neaves held, in the case of Scottinh iV^. E. 
 By. Co. V. Matthews (5 Irvine, 237 ; Deas. p. 499), that if a person 
 who has arrived at the station too late to take a ticket seat himself 
 in the train while it is standing at the station, the company are 
 justified in refusing to allow him to remain, although he tenders 
 payment of the fare. 
 
 " Using Tichetfor an;/ other Day. 
 
 " No. 2. Any passenger using or attempting to use a ticket on any 
 day for which such ticket is not available, or using a ticket which 
 has been already used on a previous journey, is hereby subjected to 
 a penalty not exceeding 40s." 
 
 The High Coiu't of Justiciary in Scotland have lately held, in 
 the case of Thom v. Caledonian lly. Co. (14 Sess. Ca. (4th Ser.) 5),
 
 476 THE LAW OF CARRIERS. 
 
 Ch. XIX. that this bye-law was only applicable to cases where an attempt 
 
 Alt. 333. 
 
 was made to cheat the company, and that it was oppressive to 
 
 prosecute for the penalty where there was no such attempt. The 
 facts in that case were these : B. and C. left Aberdeen by train 
 for Edinburgh on Sunday. B. had an unused half of a return 
 ticket which was still available for some months. C. took a single 
 ticket only available for the day of issue and not transferable. On 
 their arrival at Perth they alighted from the train and missed it, 
 apparently accidentally, on its leaving for Edinburgh. There was 
 no other train to Edinburgh on that day. They resumed their 
 journey on the evening of the next day. On arriving at Larbert 
 Station, where tickets are checked, B. showed C.'s ticket as his 
 own. The ticket inspector objected to C.'s ticket as being only 
 available for the previous day, and required payment of the fare 
 from Stirling (the last station) to Larbert. B. refused to pay or 
 to give his name and address, and was handed to the police, and 
 convicted of an offence against the bye-law. The conviction was 
 quashed, on the ground that this was a case of oppressive application 
 of the bye-law. 
 
 Lord Young in delivering judgment said : — 
 " Two friends start from Aberdeen to Edinburgh, the one with 
 a return ticket, which was available not only for that day, but 
 which had still to run some months, so that that ticket was all 
 right. The other takes a single ticket from Aberdeen to Edin- 
 bm-gh. They missed, accidentally, the train from Perth to 
 Edinburgh, which was the last train on Sunday night ; therefore 
 they were obliged to break their journey. It was stated to us, but 
 it was a mere incidental detail, that, having no friends to stay with 
 in Perth, they went on to Dundee, for which place they could 
 catch a train, remaining there overnight. They retm-n to Perth 
 the following day. The one ticket is all right, but the single 
 ticket is said not to be available, and probably that may be so in 
 the sense that it was in the power of the railway officials to refuse 
 to receive it. I should think the ticket collectors would be in- 
 structed and authorized to pass the ticket in such circumstances.
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 477 
 
 I should be surprised if it were not so. I cannot commend, as at Ch. xix. 
 
 Art* OOi$< 
 
 all likely to command the approbation of the public, tlie demand 
 
 for a second fare, the railway company having abeady received 
 the fare in full. When a passenger presents his ticket at Perth 
 the ticket examiner takes it, presumably examines it, and passes it 
 by checking it off. The appellant could not have got to Larbert 
 without some official examining the ticket in ordinary circum- 
 stances. But when he comes to Larbert the tickets are examined 
 again. The ticket collector objects to the single ticket, and says, 
 ' This was issued in Aberdeen yesterday, and is not available for 
 to-day. I will thank you for 8f/.' The appellant says, ' It was 
 passed at Perth. I believe it to be a perfectly good ticket.' 
 His name and address are demanded, but he will not submit 
 to what he considers an imposition, and being a little haughty on 
 the subject, and refusing to give his name and address, he is 
 handed over to the police. I am surprised, and almost distressed, 
 that the officials at Larbert should have acted so, and still more 
 that the superior officers of the company should have given counte- 
 nance to such conduct. He gives his name and address after he 
 is handed over to the police, and nevertheless for the matter of 
 8c/., and without a suspicion of roguery in the matter, he is de- 
 tained for fourteen hours. I cannot think that any bye-law would 
 sanction such a proceeding — that is, any bye-law if properly read 
 and construed. The bye-law in question may be very proper if 
 read and applied only to rogues — to people trying to cheat — but 
 this was not a case of that kind at all. It had no aspect of a case 
 of that sort. I am therefore of opinion that upon these facts, and 
 on a proper construction of the bye-law, which is applicable only 
 to persons who intend to cheat, and to evade payment of their 
 fare in a tricky and dishonest manner, this conviction is not well 
 founded." 
 
 The Lord Justice-Clerk and Lord Craighill concurred.
 
 478 THE LAW OF CARRIERS. 
 
 Ch. XIX. " TTsinq Ticket for any other Station. 
 
 Art. 333. "^ ' "^ 
 
 *' No. 3. Any passenger using or attempting to use a ticket for 
 any other station than that for which it is available will be required 
 to pay the difference between the sum actually j)aid and the fare 
 between the stations from and to which the passenger has travelled, 
 or, at the option of the company, the fare from the station to 
 which he was booked to the end of his journey." 
 
 See E. V. Frere (24 L. J. M. C. 72 ; 4 E. & B. 598). 
 
 The effect of the decisions on the three first bye-laws seems to be 
 that a i^assengeT fraud ulen til/ infringing them may be apprehended 
 and compelled by a magistrate to pay the fare as provided in the 
 bye-laws ; but that a passenger innocently infringing the bye-laws 
 cannot be proceeded against under them. 
 
 A passenger with a return ticket between any two stations on a 
 line of railway cannot travel on, upon that ticket, to a station beyond 
 the terminal station mentioned therein, and from and to which the 
 ticket was taken, without paying the extra fare for the farther 
 distance so travelled, notwithstanding that the charge for a return 
 ticket for the entire distance is the same as that paid by him for 
 the ticket which he had taken. {G. IF. Ry. Co. v. Pocod; 41 L. T. 
 415.) 
 
 " Defacing Tickets. 
 
 " No. 4. Any passenger wilfully altering or defacing his ticket so 
 as to render the date, number, or any material portion thereof 
 illegible is hereby subjected to a penalty not exceeding 40s. 
 
 " Sale and Purchase of Eeturn Tickets. 
 
 " No. 5. A return ticket is granted solely for the purpose of 
 enabling the person for whom the same is issued to travel therewith 
 to and from the stations marked thereon, and is not transferable. 
 Any person who sells, or attempts to sell, or parts or attempts to
 
 CA RET A OE OF PA SSENOERS B Y RA IL WA Y. 479 
 
 part with the possession of the return half of any return ticket in Ch. XIX. 
 
 , . Art. 333. 
 
 order to enable any other person to travel therewith, is hereby sub- 
 
 jected to a penalty not exceeding 40.s., and any person piu'chasing 
 such half of a return ticket, or travelling or attempting to travel 
 therewith, shall be liable to pay the fare which he would have been 
 liable to pay for the single journey, and shall, in addition thereto, 
 be subjected to a penalty not exceeding 40.9. 
 
 " Tickets issued when there is room. 
 
 " No. 6. At the intermediate stations the fares will only be 
 accepted, and the tickets issued, conditionally; that is to say, in 
 case there shall be room in the train for which the tickets are 
 issued. In case there shall not be room for all the passengers to 
 whom tickets have been issued, those to whom tickets have been 
 issued for the longest distance shall (if reasonably practicable) 
 have the preference, and those to whom tickets have been issued 
 for the same distance shall (if reasonably practicable) have priority 
 according to the order in which tickets have been issued, as denoted 
 by the consecutive numbers stamped upon them. The company 
 will not, however, hold itself responsible for such order of pre- 
 ference or priority being adhered to, but the fare or difference of 
 fare, if the passenger travel by an ordinary train in a class of 
 carriage inferior to that for which he has a ticket, shall be imme- 
 diately returned, on application, to any passenger for whom there 
 is not room as aforesaid, if the application be made before the 
 departure of the train. 
 
 " S))whi)Hj. 
 
 " No. 7. Every person smoking in any shed or covered platform 
 of a station, or in any building of the company, or in any carriage 
 or compartment of a carriage not specially provided for that 
 purpose, is hereby subjected to a penalty not exceeding 40.9. The
 
 480 THE LA W OF CARRIERS. 
 
 Ch. XIX. company's officers and servants are required to take the necessary 
 
 Art. 333. ^ -^ . , ^ . *^ 
 
 steps to enforce obedience to this bye-law ; and any person offending 
 
 against it is liable in addition to incurring the penalty above 
 mentioned to be summarily removed, at the first opportunity, from 
 the carriage, or from the company's premises. 
 
 " Uaing Ticket for Superior Class. 
 
 " No. 8. Any person travelling without the special permission of 
 some duly authorized 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 subjected to a penalty not exceeding 40s. ; and shall in 
 addition be liable to pay the fare, according to the class of car- 
 riage in which he is travelling, from the station whence the train 
 originally started, imless he shows that he had no intent to de- 
 fraud." 
 
 This bye-law is invalid and void. See Dyson v. L. ^' JSf. 
 W. By. Co. {ante, p. 473) ; and also Bentham v. Soijle {ante, 
 p. 474). 
 
 " Being Intoxicated or using Ohseene or Abusive Language, ^c. 
 
 " No. 9. Any person found in a carriage, or elsewhere upon the 
 company's premises, in a state of intoxication, or using obscene or 
 abusive language, or writing obscene or offensive words on any 
 part of the company's stations or carriages, or committing any 
 nuisance, or otherwise wilfully interfering with the comfort of 
 other passengers, is hereby subjected to a penalty not exceeding 
 40s., and shall immediately, or, if a passenger, at the first oi^por- 
 tunity, be removed from the company's premises. 
 
 " Damaging Broperty, 
 
 " No. 10. Any person who wilfully cuts or tears any lining or 
 window strap, or curtain, removes or defaces any number plate, or
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 481 
 
 breaks or scratclies any window of a carriage used on the railwa}', Ch. XIX. 
 
 •^ , f "^ Art. 333. 
 
 or who otherwise, except hy unavoidable accident, damages, defaces, 
 
 or injures any such carriage, or any station, or other property of 
 
 the company, is hereby subjected to a penalty not exceeding 5/., 
 
 in addition to the amount of any damage for which he may be 
 
 liable. 
 
 " Travelling on Hoof, Steps, 8fe. 
 
 "No. 11. No passenger shall be permitted to travel on the roof, 
 steps, or footboard of any carriage, or on the engine, or in the 
 guard's van, or any portion of the carriage not intended for the 
 conveyance of passengers ; and any passenger persisting in doing 
 so, after being warned to desist by the guard in charge of the 
 train, or any duly authorized servant of the company, is hereby 
 subjected to a penalty not exceeding 40.s., and shall be liable to be 
 summarily removed from the company's premises. 
 
 " Entering or leaving Carriage n-Jien in motion. 
 
 *' No. 12. Any passenger entering or leaving, or attempting to 
 enter or leave, any carriage while the train is in motion, or elsewhere 
 than at the side of the carriage adjoining the platform, or other 
 place appointed by the company for passengers to enter or leave 
 the carriages, is hereby subjected to a penalty not exceeding 40.y. 
 
 *' Entering full Carriage. 
 
 " No. 13. Any passenger persisting in entering a carriage or com- 
 partment of a carriage containing the full number of persons which 
 it is constructed to convey, when any such person objects to his so 
 entering the carriage or compartment, is hereby subjected to a 
 penalty not exceeding 40s'. 
 
 M, I 1
 
 482 THE LAW OF CARRIERS. 
 
 Ch. XIX. 
 Art. 333. 
 
 " Conveyance of Dogs in Carriages. 
 ~ " No. 14. Dogs and other animals will not be suffered to accom- 
 pany passengers in the carriages, but will be conveyed separately 
 and charged for, and any person taking a dog or other animal 
 with him into any passenger carriage used on the railway is hereby 
 subjected to a penalty not exceeding 40«. 
 
 " Talxing Loaded Five Arms. 
 " No. 15. Loaded fire arms are on no account to be taken into or 
 placed upon any carriage, waggon, truck, or other vehicle forming 
 or intended to form a train or any portion of a train on the rail- 
 way, or to be brought to the station or on to the premises of the 
 company, and every person so offending is hereby subjected to a 
 penalty not exceeding 5/. 
 
 " Travelling with Infectious Disorder. 
 " No. ] 6. The company may refuse to carry any person who has 
 any infectious disorder. If any person who has any such disorder 
 is found upon the premises of the company, or travels or attempts 
 to travel on the railway of the company, without the special per- 
 mission of the company, he shall be liable to a penalty not exceed- 
 ing 40.S'. in addition to the forfeiture of any fare which he may 
 have paid, and may be removed at the first opportunity from the 
 company's premises. Any person who has charge of any person 
 suffering from an infectious disorder while upon the premises 
 of the company, or travelling or attempting to travel on the rail- 
 way, or who aids or assists any person suffering from such disorder 
 in being upon the premises of the company, or travelling or 
 attempting to travel on the railway, shall be liable to a penalty not 
 exceeding 40s., unless the person suffering from such disorder be 
 travelling with the special permission of the company. 
 
 " Omnibuses, i^r., Drivers obeying Servants of Company. 
 
 " No. 17. Every driver or conductor of an omnibus, cab, carriage, 
 or other vehicle shall, while in or ujDon any station yard or other
 
 CAnniAGE OF rASSENGERfi BY RAILWAY. 483 
 
 premises of the company, obey tlie reasonable directions of tlie Ch XTX. 
 
 Art 333 
 company's officers and servants duly authorized in that behalf; and ^ 1 
 
 every person offending against this regulation is hereby subjected 
 
 to a penalty not exceeding 40.5. 
 
 " Griven imder the common seal of the Eailway Company 
 
 the day of , 18 . 
 
 " Secretary of the company. 
 
 " The Board of Trade hereby signify their allowance and ap- 
 proval of the above bye-laws and regulations. 
 
 " Signed by order of the Board of Trade 
 the day of , 18 . 
 
 " Assistant secretary to the Board of Trade." 
 
 It is not a libel for a railway company to publish a strictly 
 accurate account of the conviction of persons for offences against 
 these bye-laws, &c., even if they add the name and address. {Alex- 
 ander V. N. E. Hi/. Co., 34 L. J. U. B. 152 ; Birjffs \. G. E. E>/. 
 Co., 16 W. R. 908.) 
 
 ii2
 
 484 
 
 THE LAW OF CARRIERS. 
 
 CHAPTER XX. 
 
 THE OBLIGATIONS OF A RAILWAY COMPANY AS TO THE DEGREE 
 OF CARE REQUIRED IN THE CONVEYANCE OF PASSENGERS. 
 
 I. — GrENERALLY. Articles. 
 
 1. Not liable as Insurers, but for Negligence oydy 334 
 
 2. Liability for Injuries producing Death 335 
 
 3. Question of xohether there ivas negligence or not, one for the 
 
 Jury 336 
 
 4. Contributory Negligence by Passenger 337 
 
 5. Passenger travelling at his otcn 7'isk 338, 339 
 
 6. Not liable to a Master for Injury to a Servant 340 
 
 7. Liability where Fare not 2)ai(l 341 
 
 8. Duty of a Railway Company to Persons they allow to see 
 
 Passengers off by the Train 342 
 
 II. — Evidence of Negligence. 
 
 9. Injuries from Management of Train 343 
 
 10. Invitation to Passenger to alight 344 
 
 11. Injuries from Stational Arrangements 345 
 
 III. — Compensation for Injuries. 
 
 12. The Measure of Damages 346 
 
 13. Money received on an Accidental Insurance Policy not to 
 
 be deducted 347 
 
 14. Arbitration of Damages 348 
 
 15. Order for Medical Examination of Person Injured 349
 
 CA REIA GE OF PA SSENGERS B Y RA IL WA 3'. 485 
 
 I. — Generally. 
 
 334. Railway comjoanies as carriers of passengers 
 are not insurers, but are bound to exercise the greatest 
 care and foretliougbt for securing the safety of their 
 passengers, and are answerable for the smallest negli- 
 gence on the part of their servants and agents ; but 
 not for unforeseen accidents which care and vigil- 
 ance could not have provided against or prevented. 
 ( Christie v. Griijfjs^ 2 Camp. 79 ; Jackson v. Tollett, 2 
 Stark. 37; Diulie// v. Smith, 1 Camp. 169.) 
 
 A railway company do not warrant that every- 
 thing they necessarily use in the conveyance of pas- 
 sengers is absolutely free from defects likely to cause 
 peril, and therefore they will not be responsible to a 
 passenger for a defect in the carriage which is such 
 that it could neither be guarded against in the pro- 
 cess of construction, nor discovered by subsequent 
 examination. [licadhcad v. Midland Rjj. Co.^ L. R. 
 4 Q. B. 379; 38 L. J. Q. B. 169.) 
 
 Carriers of passengers by railway contract that all 
 persons connected with tlie carrying and with the 
 means and appliances of the carrying, such as the 
 carriages, the railroad, or signalling, shall use care 
 and diligence ; but they do not contract that other 
 railway companies who may be entitled to use the 
 railway shall not be guilty of negligence in the 
 management of their trains. [Wright \. 31 idland R>j. 
 Co., L. R. 8 Ex. 137 ; 41 L. J. Ex. 89.) 
 
 The contract into which a railway conq^any enters 
 with a passenger on giving him a ticket between two 
 
 Chap. XX. 
 Art. 334.
 
 486 THE LAW OF CARRIERS. 
 
 cjap. XX. places is the same (in the absence of any stipulation), 
 
 whether the journey be entirely over their own line or 
 
 partly over the line of another company, and whether 
 the passage over the other line be under an agreement 
 to share profits, or simply under running powers : viz., 
 that due care (including in that term the use of skill 
 and foresight) shall be used in carrying the passenger 
 from one end of the journey to the other, so far as is 
 within the compass of railway management. {Thomas 
 V. Rhjmncij Bij. Co., L. R. 6 Q. B. 266 ; 40 L. J. 
 Q. B. 89.) 
 
 The liability of the comj^any is independent of any 
 contract between the passenger and the company, the 
 law implying a duty on the part of the company to 
 carry him safely. [Foulkes v. Met. D. By. Co., 5 C. P. 
 D. 157; 49 L. J. C. P. D. 361.) 
 
 The facts in this latter case were these : — 
 
 The defendants had running powers between H., a station upon 
 their own line, and R., a station of the S. company, over the line 
 of that company. The defendants and the S. company divided 
 the profits of the traffic between II. and R. The plaintiff took a 
 return ticket from R. to H., which was issued to him by a clerk of 
 the S. company. Upon the retm-n journey from H. to R. he 
 travelled in a train belonging to the defendants, and driven by 
 their servants. Owing to the carriage being unsuited to the plat- 
 form at R., which belonged to the S. company, the plaintiff 
 sustained bodily injury. At the trial the jury found that the 
 defendants had been guilty of negligence, and the Court of Appeal 
 held that an action lay against the defendants, for they, having 
 permitted the plaintiff to travel by their train, were bound to make 
 provision for his safety. And see Self v. L. B. 8f S. C. Rt/. Co., 
 42 L. T. 173.
 
 CABJilA OE OF FA S8ENQERS B Y RA IL WA Y. 487 
 
 The obligation of a railway company extends, it seems, to every- C^^v- XX. 
 
 Art. oo4» 
 
 thing except latent defects which could not by any reasonable 
 
 diligence or skill be discovered. 
 
 The ease of Ek-hanhon v. G. E. Ry. Co. (1 0. P. D. 342) may 
 be cited as an instance of alleged negligence in allowing an unsound 
 truck to travel on the line without due examination. The facts in 
 that case were these : — A foreign truck, loaded with coal, belonging 
 to the B. "Waggon Company, came on to the defendants' line at 
 Peterborough, and there underwent the usual examination, when a 
 defect in one of the springs and a crack in the woodwork were dis- 
 covered. The truck was shunted, upon the discovery of the defects, 
 in order that it might be repaired by the waggon company to whom 
 it belonged. The defect in the spring, which was the only pressing 
 defect, was repaired, and the truck was handed over to the defen- 
 dants, and sent on by them to its destination. On the way an 
 accident, by which the plaintiff was injured, happened through the 
 existence of a crack in one of the axles of the truck. It was stated 
 in evidence that by a minute examination of the truck the crack in 
 the axle might have been discovered. The defect in the axle was 
 entirely unconnected with the defects previously discovered. The 
 Court of Appeal held that the defendants were not bound to do 
 more in the way of examining the foreign truck on its arrival at 
 Peterborough than they had done, and inasmuch as the defects 
 discovered on such examination were entirely unconnected with the 
 defect that caused the accident, they were not responsible by reason 
 of their failing upon the discovery of such defects to enter upon a 
 more minute examination of the truck. 
 
 In McCmcIcy v. Furncsn By. Co. (L. E. 8 Q. B. 57 ; 42 L. J. 
 Q. B. 4) Blackburn, J., said : " The duty of the defendants, as 
 carriers of passengers, is to take reasonable care that such passengers 
 shall not be exposed to danger during the journey. If, through 
 the want of due care, the passenger is killed or injured, the carrier 
 is liable to make compensation, and may even bo made criminally 
 responsible."
 
 4S8 THE LAW OF CARRIERS. 
 
 ^A^t'S" 335. If a railway company, through wrongful act, 
 
 ' neglect, or default, cause the death of a person, they 
 
 are liable to an action for damages notwithstanding 
 the death of the person injured, 23rovided the act, 
 neglect, or default is such as would (if death had not 
 ensued) have entitled the party injured to maintain an 
 action and. recover damages in respect thereof, (9 & 10 
 Vict. c. 93, amended by 27 & 28 Vict. c. 95.) 
 
 The first of these Acts is called Lord Campbell's Act, and, 
 although it is not in terms dhected against railway companies, it 
 has affected them more than any class of passenger carriers. 
 
 " Every such action shall be for the benefit of the wife, husband, 
 parent, and child of the person whose death shall have been so 
 caused, and shall be brought by and in the name of the executor 
 or administrator of the person deceased ; and in every such action 
 the jury may give such damages as they may think proportioned 
 to the injury resulting from such death to the parties respectively 
 for whom and for whose benefit such action shall be brought ; and 
 the amount so recovered, after deducting the costs not recovered 
 from the defendant, shall be divided amongst the before-mentioned 
 parties in such shares as the juiy by their verdict shall find and 
 direct." (8 & 9 Vict. c. 93, s. 2.) 
 
 " Not more than one action shall lie for and in respect of the 
 same subject-matter of comijlaint; and every such action shall 
 be commenced witliin twelve calendar months after the death of 
 such deceased person." (Sect. 3.) 
 
 " In every such action the plaintiff on the record shall be re- 
 quired, together with the declaration, to deliver to the defendant 
 or his attorney a full particular of the person or persons for whom 
 and on whose behalf such action shall be brought, and of the nature 
 of the claim in respect of which damages shall be sought to be 
 recovered." (Sect. 4.) 
 
 " The following words and expressions are intended to have the 
 
 I
 
 CARRIA CrE OF PA SSENOERS B Y RA IL WA Y. 489 
 
 meanings liereby assigned to them respectively, so far as sucli Chap. XX. 
 
 Art 335 
 
 meanings are not excluded by the context or by the nature of the - — '■ '~ 
 
 subject-matter; that is to say, words denoting the singular number 
 are to be understood to apply also to plurality of persons or things ; 
 and words denoting the masculine gender are to be understood to 
 apply also to persons of the feminine gender ; and the word ' per- 
 son ' shall apply to bodies politic and corporate ; and the word 
 ' parent ' shall include father and mother, and grandfather and 
 grandmother, and stepfather and stepmother ; and the word 
 ' child ' shall include son and daughter, and grandson and 
 granddaughter, and stepson and stepdaughter." (Sect. 5.) 
 
 " If there shall be no executor or administrator of the person 
 deceased, or, there being such executor or administrator, no 
 such action as in the said Act mentioned shall within six calendar 
 months after the death of such deceased person as therein men- 
 tioned have been brought by and in the name of his or her executor 
 or administrator, then and in every such case such action may be 
 brought by and in the name or names of all or any of the persons 
 (if more than one) for whose benefit such action would have been, 
 if it had been brought by and in the name of such executor or 
 administrator ; and every action so to be brought shall be for the 
 benefit of the same person or persons, and shall be subject to the 
 same regulations and procedure, as nearly as may be, as if it were 
 brought by and in the name of such executor or administrator." 
 (27 & 28 Vict. c. 95, s. 1.) 
 
 " It shall be sufficient, if the defendant is advised to pay money 
 into Court, that he pay it as a compensation in one sum to all 
 persons entitled under the said Act for his wrongful act, neglect, 
 or default, without specifying the shares into which it is to bo 
 divided by the jury ; and if the said sum be not accepted, and an 
 issue is taken by the plaintiff as to its sufficiency, and the jury shall 
 think the same sufficient, the defendant shall be entitled to the 
 verdict upon that issue." (Sect. 2.) 
 
 These Acts do not apply to Scotland. 
 
 The personal representatives of a deceased man cannot maintain
 
 490 
 
 THE LA W OF CARRIERS. 
 
 Chap. XX. an action under Lord Campbell's Act where tlie deceased, if he 
 Art 335 
 '- '- had survived, would not have been entitled to recover. [HaUjh v. 
 
 Boual Mail S. Co., 52 L. J. Q. B. D. 640.) 
 
 The plaintiff, as administrator, sued the defendants under the 
 provisions of Lord Campbell's Act to recover damages for the 
 death of his son, who had been killed by their negligence. At the 
 trial the plaintiff gave evidence to the effect that he was nearly 
 blind, and was injured in his leg and hands, and that the deceased 
 was always very kind to him, and used to contribute to his support 
 five or six years ago when he required it. The Court held, upon 
 the above facts, that there was some evidence for the jury of a 
 reasonable expectation of benefit from the continuance of the son's 
 life, entitling the plaintiff to sue under 9 & 10 Yict. c. 93. 
 {HdhcringfonY. N.E. By. Co., 9 Q. B. D. 160 ; 51 L. J. Q. B. D. 
 495.) 
 
 The numerous cases w^hich have been decided under this Act are 
 to be found in Eoscoe's Nisi Prius Evidence, Hodges on Eailways, 
 and Browne and Theobald on Eailw^ays. 
 
 A sum of money was received from a railway company by way 
 of compensation by the executors of a person whose death had 
 resulted from injuries received in an accident on the railway, no 
 action having been brought under Lord Campbell's Act (9 & 10 
 Vict. c. 93). The executors brought an action in the Chancery 
 Division, to which all the relatives of the deceased referred to in 
 sect. 2 of 9 & 10 Vict. c. 23, were parties, asking for a declaration 
 as to the persons entitled to the money. It was held that the 
 Court could distribute the fund amongst such of the relatives of 
 the deceased as suffered damage by reason of the death in the 
 same manner as a jmy could have done in an action under the Act. 
 {Buhner v. Bulmer, 25 Ch. D. 409.) 
 
 336. In all actions against railway companies for 
 personal injuries, if any evidence whatever of negli- 
 gence is offered, the question wliether there was negli-
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 491 
 
 gence on the part of the comj)any or not is for the chap. xx. 
 
 jury, and not for the Court. (^Bridges v. North London 
 
 Rfj. Co., L. R. 7 H. L. 213 ; 43 L. J. Q. B. (H. L.) 
 151 ; Rohson v. N. E. Ry. Co., 2 Q. B. D. 85 ; 46 L. J. 
 Q. B. D. 50 ; Slatteri/ v. BuMin, ^c. Ri/. Co., 3 App. 
 Cas. 1155.) 
 
 Lord Coleridge, C. J., in delivering judgment in the Court of 
 Appeal in the latter case, said : " It may be that the judgment of 
 the House of Lords {i.c.^ in Bridges' case, supra), which has been so 
 much referred to, has set the matter at rest ; for though their actual 
 judgment was confined strictly to the facts of the case, yet if we 
 take into consideration the opinions of the judges which were 
 given on that occasion, and regard the judgment of the Lords as 
 having been given in accordance with those opinions, it will be 
 seen that the general view of the law adopted by then* Lordships 
 was, that if any evidence at all is given for the plaintiffs, it is for 
 the jury to determine whether there was negligence on the part of 
 the defendants or not." 
 
 " Every judge on the bench has exhausted himself in endeavour- 
 ing to enunciate some proposition with regard to these cases, 
 founded on principle ; but, after all, we must decide the case on its 
 own facts." {Per Brett, L. J., in Rose v. JV. E. Rf/. Co.,2)osf, p. 498.) 
 
 Kelly, C. B., and Bramwell, L. J., in Jackson v. Jlef. R//. Co. 
 (3 App. Cas. 193) held that no principle of law whatever was laid 
 down in the case of Bridges v. N. L. Rij. Co. 
 
 Lord Cairns, L. C, in Jackson v. 2Iet. Ri/. Co. {^upra) said : 
 " The judge has to say whether any facts have been estabhshed by 
 evidence from which negligence may be reasonably inferred ; the 
 jurors have to say whether on these facts, when submitted to them, 
 negligence ought to be inferred." 
 
 337. The plaintiff in an action for negligence 
 cannot succeed if it is found by the jury that he has 
 himself been guilty of any negligence or want of
 
 492 THE LAW OF CAHrilEES. 
 
 Chap. XX. ordinary care which contributed to the cause of the 
 
 Art. 337. -^ 
 
 accident. 
 
 Though a plaintiff may have been guilty of negli- 
 gence, and although that negligence may in fact have 
 contributed to the accident which is the subject of the 
 action, yet, if the defendants could, in the result, by 
 the exercise of ordinary care and diligence, have 
 avoided the mischief which haj^pened, the plaintiff's 
 negligence will not excuse them. [Raclkfj v. L. ^ N. 
 W. Ry. Co., 1 App. Cas. 754 ; 46 L. J. Ex. (H. L.) 573, 
 and the authorities there cited.) 
 
 When, in an action of negligence, the defendants rely on the 
 doctrine roknfi non ft injuria, they must obtain a finding at the 
 trial that the plaintiff voluntarily took the risk upon himself, and 
 had a full knowledge of the nature and extent of the danger. 
 Otherwise the Court will not give judgment for the defendants on 
 the ground that such a finding is the only inference which can 
 properly be drawn from the facts. {OHhorne v. L. 8^ N. W. Ey. 
 Co., 21 Q. B. D. 220 ; 36 W. E. 809 ; post, p. 591.) 
 
 338. A railway company, as carriers of passengers, 
 being liable only for negligence and not as insurers of 
 their absolute safety, in stipulating that the passenger 
 shall travel " at his own risk," except their liability 
 for negligence. [McCmvley v. Furncss Ry. Co., L. R. 
 8 Q. B. 57 ; 42 L. J. Q. B. 4 ; IlaJl v. N. E. Ry. Co., 
 L. R. 10 Q. B. 437; 44 L. J. Q. B. 164.) 
 
 Outside the cover of a paper hook of coupons forming a railway 
 ticket, issued to the plaintiffs by the defendants, was printed the 
 name of their railway, the words " Cheap return ticket, London to 
 Paris and back, second class," and a statement of the period and 
 journey for which the ticket was available, but no reference to the
 
 CARRIA GE OF PA SSENGERS B Y UA TL WA Y. 493 
 
 inside of tlie cover. On the inside, and apparent on turning the Chap XX. 
 
 leaf, was a condition limiting the responsibility of the defendants 
 
 to their own trains. The plaintiff, ha^dng been injured while 
 travelling by virtue of the ticket in a French train, sued the defen- 
 dants. They set up the condition. The plaintiff had not read and 
 did not know of it. The Court held that the whole book was the 
 contract accepted by the plaintiff, and that he, therefore, could not 
 reject the condition, which was one of its terms, and that judgment 
 should be entered for the defendants. {Burke v. >S'. J^. Ey. Co., 5 
 C. P. D. 1 ; 49 L. J. C. P. D. 107.) 
 
 In that case Lord Coleridge distinguished it from Henderson v. 
 Stevenson (L. E. 2 H. L. Sc. 47G) in the House of Lords, where 
 on the back of the ticket was printed, " The company incurs no 
 liability in respect of loss, injury, or delay to the passenger or to 
 his luggage, whether arising from the act, neglect, or default of 
 the company or their servants, or otherwise." In the office there 
 was hung up a notice that " the passengers, and the owners of the 
 passengers' luggage, &c., should undertake all risks whatsoever." 
 It w^as not shown that the plaintiff's attention was called either to 
 the notice in the office, or on the back of the ticket, or that he knew 
 either of the one or the other. 
 
 A railway passenger took a ticket containing a printed condition 
 which stated that, inasmuch as the holder was permitted to travel 
 (as he did) by a passenger carriage attached to a goods train, the 
 railway company should be relieved from responsibility for any 
 personal injury to plaintiff, consequent upon, or in any way arising 
 from, such passenger carriage being attached to a goods train. In 
 an action by the passenger for personal injuries, sustained by him 
 while alighting from a carriage attached to a goods train, which, 
 after certain goods waggons had been shunted, stopped short of the 
 platform of the station to which he was travelling, the Com-t 
 held that the plaintiff was bound by the condition, although in fact 
 unaw^are of its terms, and that the railway company were exempted 
 from liability if the injuries complained of arose from an accident 
 within the scope of the condition. {Johnson v. Greai Southern and 
 Western Ry. Co., 9 Ir. R. C. L. 108.)
 
 494 THE LA W OF CARRIERS. 
 
 Chap. XX. ^ drover in cliarffe of his cattle sisrned a contract with a railway 
 
 Art. 338. . 
 
 company, which stated that the cattle were to he conveyed upon 
 
 the conditions mentioned upon the hack of the invoice handed to 
 him, and on the back of the invoice there was printed, amongst 
 other conditions, the following : — " That, as a drover is allowed to 
 attend the cattle during transit, the}' will allow such drover to 
 travel free of charge, upon condition that he so travel at his own 
 risk." On the face of the invoice there was nothing referring to 
 passengers except the words " Drover in charge free," and at the 
 foot of it were the words " For conditions of carriage, see hack 
 hereof." The drover did travel free, and, in consequence of a col- 
 lision occurring on the journey, he received personal injuries, for 
 which he brought an action against the railway company. The 
 Court held that the condition, allowiag a drover in charge of his 
 cattle to travel free, provided he did so at his own risk, was part of 
 the written contract signed by the drover ; and that as he had 
 elected to travel free he was bound by the conditions, and could not 
 recover damages for the personal injuries sustained. {Duffx. Gt. 
 N. By. Co., 4 L. E. Ir. C. L. 178.) 
 
 339. Where a passenger travels on a railway at his 
 own risk, the exem^^tiou from liability on the part of 
 the railway company extends, not only to the actual 
 transit, but to risks incurred on the premises of the 
 company in coming to and going from the points to 
 which the contract to carry a])plies. ( Gallin y. L. 6f 
 N. W. By. Co., L. R. 10 Q. B. 212 ; 44 L. J. Q. B. 89.) 
 
 In that case, a cattle drover so travelling, who had to alight at a 
 siding, and in necessarily going to the station passed a dangerous 
 place, at which he met with an accident, was held not entitled to 
 recover, although the jury found that there had been negligence on 
 the defendant company's part. 
 
 See mai V. N. E. By. Co. (L. 11. 10 Q. B. 437 ; 44 L. J. Q. B.
 
 CA RRIA GE OF PA HSENGERS B Y RA IL WA Y. 495 
 
 164), as to free passes over lines in connection, and the non-liabilitj Chap. XX. 
 
 _ , • .. ^j Art. 339. 
 
 of a railway company where a person travels " at his own risk 
 
 over their line under a contract with another railway company. 
 In that case it was held that the ticket under which the plaintiff 
 travelled meant that he should be at his own risk during the whole 
 of the journey. 
 
 Oockburn, L. C. J., in delivering judgment in McCawkij v. 
 Furness Ry. Co. (L. E. 8 Q. B. 57), said: "The plaintiff had a 
 free pass, and was carried under an agreement, in which it was 
 provided that he should travel at his own risk, and I think that 
 such an agreement must have been intended to exclude everything 
 to which the company would ordinarily be liable as carriers of 
 passengers. Now, I cannot think of anything for which the 
 company would be liable with regard to the plaintiff, except negli- 
 gence. There would, under ordinary circumstances, be an obliga- 
 tion to use due care in carrying the plaintiff. This obligation is 
 excluded by the express terms of the bargain, and consequently 
 there is a good defence to the action." 
 
 " An agreement that the passenger should be carried at his own 
 risk would not take away the carrier's liability to a criminal 
 prosecution. No such agreement could be set up as a defence to 
 an indictment, but there is nothing to prevent it from being pleaded 
 in a civil action." Per Blackburn J., ibid. 
 
 340. An injury to a servant while a passenger 
 upon a railway upon a ticket taken by himself is not 
 such a wrong done to the servant as to enable a master 
 to maintain an action for loss of service. [Alton v. 
 3Iidland Ry. Co., 34 L. J. C. P. 292 ; 19 C. B. (N. S.) 
 213.) 
 
 And see BayU-^ v. Lintott (L. 11. 8 C. P. 345 ; 42 L. J. C. P. 
 119.) 
 
 In Ben-inyer v. G. E. Ry. Co. (4 C. P. D. 163), Lopes, J., held 
 that an action could be maintained by the father against another
 
 496 THE LAW OF CARRIERF^. 
 
 Chap. XX. companj^, whose train came into collision with the train in which 
 
 : ■- his son, an infant, was travelling, and thereby injured him, for loss 
 
 of his services ; on the ground that, though there was no contract 
 of carriage, there was a pure tort hy the company. 
 
 Where a master takes a ticket for his servant, the contract is with 
 the master. {Jennings v. Gt. N. Ry. Co., ante, p. 475.) Where 
 the servant takes a ticket for a journey by himself, although on his 
 master's service, the contract is with the servant. 
 
 341. Unless there be an intention in the passenger 
 to defraud, the mere non-payment of fare will not 
 exempt the railway company from liability for negli- 
 gence. {Austin V. V W. El). Co., L. R. 2 Q. B. 442 ; 
 36 L. J. Q. B. 201.) 
 
 By 7 & 8 Yict. c. 85, s. 6, railway companies were bound to 
 carry by certain trains children under three years of age without 
 charge, and were entitled to half the fare charged for an adult in 
 respect of all children between three and twelve years of age. The 
 plaintiff's mother, carrying in her arms the plaintiff, a child of 
 three years and two months old, took a ticket for herself by one of 
 these trains on the defendants' railway, but did not take a ticket 
 for the plaintiff ; in the course of the journey an accident occurred 
 through the neghgence of the defendants, and the plaintiff was 
 injured. At the time the plaintiff's mother took her ticket, no 
 question was asked by the defendants' servants as to the age of the 
 child ; and there was no intention on the part of the mother to 
 defraud the company. It was held that the plaintiff was entitled 
 to recover against the defendants for the injury he had received. 
 {Amtln V. G. W. R>j. Co., supra). 
 
 Cockburn, C. J., Shee, J., and Lush, J., held that there was a 
 contract to carry both mother and child, and that the mistake as to 
 the age of the child was no answer to an action for breach of this
 
 GARRIAOE OF PASSENGERS BY RAILWAY. 497 
 
 contract. And Blackburn, J., held that, apart from any contract, ^J\P „f,^ 
 
 the company were liable for breach of a duty, arising from the fact 
 
 that the child was lawfully in one of their carriages. Blackburn, 
 J., said : " In MarslmU v. York, Nen: 8f JBer. R>/. Co. (21 L. J. 
 0. P. 34 ; 11 0. B. 655), the Court held that the contract to carry 
 safely does not depend upon whether or not the passenger has 
 himself entered into a contract with the carrier, but that the fact of 
 his being lawfully within the carriage creates a duty to carry him 
 safely. If there be fraud on the part of the passenger, no such 
 duty would arise. Whether fraud on the part of the mother would 
 be the same as fraud by the child, so as to bring it within the prin- 
 ciple of Waite v. N. E. By. Co. (28 L. J. Q. B. 258), we need not 
 inquire, for actual fraud is not proved." 
 
 342. The duty of a railway comjoany towards 
 those who, in practice, they allow to accompany 
 passengers in order to see tliem off by the train 
 without asking- special permission, is not lower than 
 towards those whom they accompany, [Pe7' Denman, 
 J., in WatJdns v. G. W. Bij. Co., 46 L. J. C. P. D. 817.) 
 
 Denman, J., in his judgment, said : " I am of opinion that a 
 railway company, keeping open a bridge over their line for the use 
 of their passengers, is bound to keep that bridge reasonably safe, 
 and that if, in practice, the friends of passengers are allowed by 
 the company's servants to see passengers off by the trains, and to 
 cross the bridge without asking special permission, the duty of the 
 company in that respect cannot be put lower towards them than 
 towards those whom they accompany for such not unreasonable 
 purpose. I think that this view is consistent vAih. the case of 
 Corhy V. Hill (27 L. J. C. P. 318 ; 4 C. B. (N. S.) 556) and Smith 
 v. London, S^r. Docks Co. (L. E. 3 C. P. 330 ; 37 L. J. C. P. 217). 
 I regard the passenger's friend so permitted to go along the bridge 
 by constant acquiescence on the part of the railway, as not being in 
 
 M. K K
 
 498 THE LA W OF CARRIERS. 
 
 Chap. XX. the nature of a person barely licensed to be there, but as being 
 '■ '- invited to go to the same extent as the passenger whom he accom- 
 panies, and who is there on lawful business, in which the passenger 
 and the company have both an interest. I consider also that the 
 case of Inclermaur v. Dames (L. R. 2 C. P. 311 ; 36 L. J. 0. P. 
 181) is in favour of this view." 
 
 II. — Evidence of Negligence. 
 
 343. A collision between two trains of the same 
 company is prima facie evidence of negligence. (^Skin- 
 ner V. L. B. Sf S. a Ry. Co., 5 Ex. 787.) 
 
 Running off the line seems also to be primd facie 
 evidence of negligence. (Bird v. Gt. N. Ry. Co.., 28 
 L. J. Ex. 3 ; Daivmi v. M. S. Sf L. Ry. Co., 5 L. T. 682.) 
 
 In the absence of evidence to the contrary, trains running over 
 a particular line of railway are to be presumed to be the property 
 of, or at any rate under the control of, the company to whom the 
 line belongs, although other companies may have running powers 
 over the part of the line in question. {Ayles v. 8. E. Ry, Co., 
 L. R. 3 Ex. 146 ; 37 L. J. Ex. 104.) 
 
 344. An invitation to passengers to alight on the 
 stopping of the train, without any warning of danger 
 to the passenger, who is so circumstanced as to be un- 
 able to alight without danger, such danger not being 
 visible and apparent, amounts to negligence on the 
 part of the railway company ; and the bringing up a 
 train to a final standstill for the purpose of the pas- 
 sengers alighting amounts to an invitation to alight ; 
 at all events, after such a time has elapsed that the 
 passenger may reasonably infer that it is intended 
 that he should get out if he purj^oses to alight at the
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 499 
 
 particular station. (Coclde v. S. E. Rij. Co., L. R. 7C. c^ap. xx. 
 p. 321 ; 41 L. J. C. P. 140.) 
 
 In Bridges v. North London Eij. Co. (L. E. 7 H. L. 213) it was 
 doubted whether the calling out the name of a station is an invita- 
 tion to the passengers, going to that station, to alight there. It 
 was held that the evidence of the calling out the name in that case, 
 coupled with the stopping of the train, and the interval of time 
 which elapsed before it again moved, was evidence to go to a jury. 
 In delivering judgment in Cockle s cci-se, Cockburn, C. J., said : 
 " It is not necessary here to say what would be the effect if a 
 passenger should alight where the danger was visible and apparent, 
 as where a passenger gets out in broad day, trusting to his ability 
 to overcome the difficult}'. ... In the present case the evidence 
 of the conduct of the company's servants was such as to warrant 
 the jury in finding that the train had really come to the final 
 standstill, and that the company's servants meant the passengers 
 to get out there or bo carried on." 
 
 In the case of Leivis v. L. C. ^^ D. Ey. Co. (L. E. 9 Qt. B. 6G ; 
 43 L. J. Q,. B. 8), it was held that the mere stopping of a train, 
 and calling out the name of a station, is no evidence of an invita- 
 tion to alight. 
 
 In that case Blackbui-n, J., said, " We must have evidence of a 
 negligent invitation to alight, given after the stopping. When a 
 train overshoots the platform it must of necessity stop some little 
 time before it can back." And Archibald, J., said, " There may 
 indeed be conduct on the part of a company's servants, without the 
 opening of a door, or requesting to alight, which amounts to an 
 invitation to alight. For instance, if a train should stop a con- 
 siderable time, that might be an invitation." 
 
 In Roh.son v. N. E. Eij. Co. (2 Q. B. D. 8o ; 4G L. J. Q. B. D. 
 (App.) 50), Lord Justice Mellish said, "Here the plaintiff was in- 
 vited to alight, and on accepting the invitation was injured ; and 
 the fact that the train had gone beyond the platform was in itself, 
 I think, some evidence of neghgence. Then the cjuestion arises, 
 
 KK 2
 
 500 THE LAW OF CARRIERS. 
 
 Chap. XX. was the defendant iustified in alisrlitins: when she did so ? . . . 
 
 Art. 344 o o 
 
 '- A railway company are bound to find, at every station, reasonable 
 
 means for passengers to alight." 
 
 A railway train, consisting of six carriages, drew up at a small 
 station with the last carriage beyond the platform. The platform 
 was adapted for five carriages only ; but on market days the train 
 usually consisted of six carriages. The plaintiff, who frequently 
 travelled by the train, was in the last carriage. The train was 
 drawn up as far as possible, the engine being against a dead end, 
 and the porters called out " All change here." The plaintiff's son 
 got out and took her parcels across to a train waiting on the other 
 side of the platform. The plaintiff knew her carriage was not at 
 the platform. She, however, did not call for assistance, but pro- 
 ceeded to get out as quickly as she could. She put one foot on the 
 iron step, and as she was about to put the other on the wooden 
 step the first slipped, and she fell. It was held that the above 
 circumstances did not constitute any evidence of negligence for the 
 jury. {Oiccn v. G. W. Ey. Co., 46 L. J. Q. B. D. 486.) 
 
 As a general rule, a party who attempts to ^ei into or out of a 
 railway carriage while the train is in motion is guilty of such rashness 
 as to bar all action at his instance for any injury that may result. 
 
 The train in which the plaintiff was carried as a passenger over- 
 shot the platform at the station at which the plaintiff intended to 
 alight, drawing the carriage in which the plaintiff was seated 
 beyond the platform. The porters called out, " Keep your seats," 
 but not so as to be heard by the plaintiff, and the train was not 
 put back. After waiting a reasonable time, the plaintiff got out, 
 and in doing so sustained personal injuries. It was held that there 
 was evidence of negligence on the part of the company to go to the 
 jury. {Rose v. N. E. Ry. Co., 2 Ex. D. 248 ; 46 L. J. Ex. D. 
 (App.) 374.) 
 
 345. A railway comj)any are bound to provide for 
 the public whom they invite to travel by their line 
 means of access to, and egress from, their carriages and
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 50l 
 
 stations, which can be used without danger. (^Bridges ^^^^g-JJ • 
 V. N. L. By. Co., L. E. 7 H. L. 213 ; 43 Q. B. (H. L.) — — '- 
 151.) 
 
 Their duty is to take reasonable care to keep their 
 f)remises in such a state as that those whom they invite 
 to come there shall not be unduly exposed to danger. 
 {Welfare v. L. ^^ B. Buj. Co., L. R. 4 Q. B. G93 ; 38 L. J. 
 Q. B. 241.) 
 
 In cases as to accidents to passengers at stations, it is always a 
 question whether the mischief could reasonably have been foreseen, 
 and whether precautions ought not to have been taken to guard 
 against it. 
 
 In Grafter v. Met. By. Co. (35 L. J. C. P. 132), the railway 
 company had a stahcase at a station for the use of passengers, 
 leading from the arrival platform to the street : it was about 6 
 feet wide, with walls on each side and wooden steps nosed with 
 brass, worn smooth. The plaintiff slijoped in going down the 
 stairs and hurt himself. It was held that there was no evidence to 
 go to the jury, there being nothing unusual in the staircase, and 
 its nature being obvious to everyone. 
 
 The plaintiff was injured by falling on steps leading to the 
 defendants' railway station, which the defendants had allowed to 
 be slippery and dangerous. There was no contributory negligence 
 on the part of the plaintiff, but there were other steps which he 
 might have used, and he admitted that he knew that the steps were 
 dangerous, and went down carefully holding the handrail. The 
 Court held that the defendants had not shown that the plaintiff 
 with a full knowledge of the nature and extent of the danger had 
 voluntarily agreed to incur it, so as to make the maxim Vo/cnti 
 non ft injuria applicable; and therefore he was entitled to recover. 
 {Osborne v. L. 8f N. W. By. Co., 21 Q. B. D. 220.) 
 
 In Conunan v. Eastern Counties Hi/. Co. (29 L. J. Ex. 94) the 
 plaintiff, who, with a crowd of others, was waiting on the platform
 
 502 THE LAW OF CARRIERS. 
 
 Chap. XX. for the arrival of a train, caught liis foot on tlie edge of a weighing 
 
 '■ '- machine, was tripped over, and hurt. The machine was such as is 
 
 commonly employed for weighing luggage, and was standing in 
 the usual place. It was held that there was no evidence of 
 negligence of the company to go to the jury. Bramwell, B., said: 
 "Nothing is so easy as to be wise after the event. No human 
 being ever suggested that any mischief was likely to arise from 
 a weighing machine placed as this was ; and how, therefore, could 
 the company anticipate any ? On the contrary, they might fairly 
 expect there would be none, when year after year company after 
 company had weighing machines placed in similar positions, and 
 no harm ever resulted." 
 
 In an action under Lord Campbell's Act to recover damages for 
 death through the alleged negligence of a railway company, it 
 appeared that on the occasion of the accident the deceased had 
 taken a ticket for a special train at a cheap rate for harvest men. 
 There being no room in the special train, the deceased remained 
 on the platform until the arrival of the next ordinary train, to- 
 gether with a crowd composed of harvest men, who had also taken 
 tickets for the special train, and of other persons, a large number 
 of whom had entered the station without permission. The company 
 had an extra number of porters at the station, but in consequence 
 of great disorderliness of the persons so assembled on the platform, 
 and by a sudden and violent rush of the crowd, the deceased was 
 pushed on the line, and was killed by the engine of the ordinary 
 train as it approached. At the trial the jury found that the 
 deceased was not entitled to proceed by the ordinary train ; that 
 the accident was caused by the rush of the crowd ; that the com- 
 pany had not taken due precautions to prevent injuries from the 
 crowding on the platform ; and that, by using due precautions, 
 they might have prevented the rush of the crowd : — The Court 
 held, that even assuming the deceased to have been lawfully on 
 the platform, the company were not liable for the accident. 
 {Cannon v. Midland Great Western By. Co., 6 L. E., Ir. C. L. 199.) 
 A railway company is not bound to provide at a station (even when
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 503 
 
 an unusually large numter of passengers by a special train is Chap. XX. 
 
 expected) a staff of servants sufficient, not merely for the guid- - 
 
 ance and assistance of passengers and the preservation of order 
 amongst them, but adequate to control the violence of an assem- 
 blage of persons entering the station without permission and 
 overcrowding the platform. {lb id.) 
 
 In Shcppcrd v. Midland Ry. Co. (25 L. T. 879 ; 20 W. R. 705), 
 an intending passenger fell upon a piece of ice nearly half an inch 
 thick, extending half-way across the platform. The presence of the 
 ice being unexplained, it was held that there was evidence of 
 negligence on the part of the company. 
 
 Although a railway company are not bound to erect a foot 
 bridge over their line to give passengers access from one platform 
 to the other, and the want of such a bridge mil not, 2^6r se, make 
 them liable for injuries received by the public on that account, 
 still the absence of such a precaution throws a greater onus on the 
 company to provide for the safety of the public. {Girdwood v. 
 mrth British Ry. Co., 4 Sess. Ca. (4th Series) 115.) 
 
 Where notices have been put up by a railway company forbid- 
 ding persons to cross the line at a particular point, but these notices 
 have been continually disregarded by the public, and the company's 
 servants have not interfered to enforce their observance, the com- 
 pany cannot, in the case of an injury occurring to anyone crossing 
 the line at that point, set up the existence of the notices by way of 
 answer to an action for damages for such injury. [Slatfcry v. 
 Buhlin, Wicklow <^' Wexford Ry. Co., 3 App. Cas. 1155.) 
 
 The case of Vaughan v. Taf Vale Ry. Co. (29 L. J. Ex. 247) 
 shows that a railway company are not liable for an accident re- 
 sulting from the use of that which they are expressly permitted by 
 the legislature to use, unless there be evidence of some negli- 
 gence in fact. 
 
 Bilhce V. L. B. 8f 8. C. Ry. Co. (34 L. J. C. P. 182 ; 18 0. B. 
 (N. S.) 584) shows that there may be a state of circumstances 
 which would cast on a railway company the duty of doing some- 
 thing more than the statute requires.
 
 504 THE LAW OF CARRIERS. 
 
 Chap, XX. TTx /-< T 
 
 Art. 346. 111. — Compensation for Injuries. 
 
 346. In an action against a railway company for 
 personal injury to a passenger, the jury in assessing 
 the damages may take into consideration, besides the 
 j)ain and suffering of the plaintiff, and the expense in- 
 curred by him for medical and other necessary attend- 
 ance, the loss he has sustained through his inability 
 to continue a lucrative professional j)ractice. [PhilliiJS 
 V. L. 6f S. W. Eij. Co., 5 C. P. D. 280 ; 49 L. J. Q. B. 233.) 
 
 In that case it was held that the right direction to a jury, who 
 have to assess damages in an action for personal injuries sustained 
 in a railway accident by a professional man making a large income, 
 is that, in respect to the plaintiff's money loss, they should not 
 attempt to arrive at an absolute or mathematically accurate com- 
 pensation, but should give a fair and reasonable compensation, 
 taking into consideration the amount of his income when the 
 injuries were sustained, the length of time he has been deprived 
 of that income, the probabihty of his having continued to earn it 
 if he had not been injured, the prospect of his being able to earn 
 anything in the future, and all the other circumstances of the 
 case. 
 
 Bramwell, L. J., said : " I have tried as a judge more than 
 a hundred actions of this kind, and the direction which I, in 
 common with other judges, have been accustomed to give to 
 the jury has been to the following eifect : — ' You must give 
 the plaintiff a comjoensation for his pecuniary loss; you must 
 give him compensation for his pain and bodily suffering. Of 
 course, it is almost impossible for you to give to an injured 
 man what can be strictly called a compensation ; but you must 
 take a reasonable view of the case, and must consider under 
 all tlie circiunstances what is a fair amount to be awarded to 
 him.' I have never known a dhection in that form to be ques- 
 tioned."
 
 CARRIAGE OF PASSENGERS BY RAILWAY. 505 
 
 347. Where the jmssenger has, under a policy of ^l^^-^f- 
 
 insurance against accidents, received a sum of money 
 
 in respect of the accident in question, it cannot be 
 taken into account in reduction of the damages to be 
 awarded to such passenger. [Bradburn v. G. W. Ry. 
 Co., L. R. 10 Ex. 1 ; 44 L. J. Ex. 9.) 
 
 " The Railway Passengers Assurance Company's Act, 1864" (27 
 & 28 Yict. c. cxxv, s, 35), enacts, that no contract of that company, 
 nor any compensation received or recoverable by virtue of any such 
 contract, either under that Act or otherwise, shall prejudice or affect 
 any right or action, claim or demand, which any person or his exe- 
 cutors or administrators may have against any other company or 
 any person, either at common law or by virtue of 9 & 10 Vict. 
 c. 93, or of any other Act of Parliament, for the injury, whether 
 fatal or otherwise, in respect of which the compensation is received 
 or recoverable. 
 
 348. Where a person has been injured or killed by 
 an accident on a railway, the Board of Trade, upon 
 application in writing made jointly by the company 
 from whom compensation is claimed and the person if 
 he is injured, or his representatives if he is killed, 
 may, if they think fit, appoint an arbitrator, who shall 
 determine the compensation (if any) to be paid by the 
 company. (31 & 32 Vict. c. 119, s. 25.) 
 
 349. Whenever any person injured by an accident 
 on a railway claims compensation on account of the 
 injury, any judge of the Court in which joroceedings 
 to recover such compensation are taken, or any person
 
 506 
 
 THE LAW OF CARRIERS. 
 
 Chap. XX. 
 Art. 349. 
 
 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. (31 & 82 Vict. c. 119, s. 26.)
 
 ( 507 ) 
 
 Part VI. 
 
 CARRIERS OF PASSENGERS BY ROAD. 
 
 CHAPTER XXI. 
 
 THE OBLIGATIONS OF CAERIEKS OF PASSENGERS BY STAGE AND 
 HACKNEY CARRIAGES. 
 
 I. — Generally. 
 
 Articles. 
 
 1. Whe7i Obligation to receive all Perso7is demanding to he carried 
 
 arises , 350 
 
 2. Obligation to carry Passengers to the end of the Journey .... 351 
 
 3. Obligation to carry ivithout delay 352 
 
 4. Obligation to use all reasonahle Care for Safety of Passengers . . 353 
 
 5. Obligation to provide a safe and proper Conveyance 354 
 
 6. Obligation to provide Servants of proper Skill and steady 
 
 Horses 355 
 
 7. Obligatio7i to avoid Injury to Foot Passengers 356 
 
 8. Obligation to carry Luggage 357 
 
 II. — In the Metropolis. 
 
 9. Cab plying for Hire must carry Passengers 358 
 
 10. Distance and Pace which Cab may be required to drive 359 
 
 11. Reasonable quantity of Luggage to be carried 360 
 
 12. Cab Fares 361 
 
 13. Omnibus must carry Passengers if room, and no reasonable 
 
 Objection to Admission made 362 
 
 14. Omnibus Fares 363
 
 508 THE LAW OF CARRIERS. 
 
 Ch; ^XI. I, GeNEEALLY. 
 
 Art. 350. 
 
 350. Passenger carriers on land are bound to 
 convey persons whenever they offer themselves in a 
 fit and projier state to be carried, and are ready to 
 pay for their transportation, and there is room in the 
 carrier's conveyance. (See ante^ Art. 323.) 
 
 The passenger must be in a fit state as to sobriety, health, and 
 conduct to associate with other passengers. (Story on Bailm.) 
 
 Passengers are bound to submit to such reasonable regulations 
 as the carriers may adopt for the convenience and comfort of the 
 other passengers, as well as for their own proper interests. (Story 
 on Bailm. ; Angell on Carriers.) 
 
 Passenger carriers have a right to demand and to receive their 
 fare at the time when the passenger engages his seat ; and if he 
 refuses to pay it, they may fill up the place with other passengers 
 who are ready to make the proper deposit. [Ker v. Mountain, 1 
 Esp. 27.) 
 
 351. The carrier is bound to carry the passenger 
 from the usual place of taking up to the usual place of 
 setting down, and he cannot at any intermediate place 
 refuse to proceed, the undertaking to carry to the 
 journey's end being absolute. {Dudleij v. Smith, 1 
 Camp. 167; Story on Bailm. ; Angell on Carriers.) 
 
 If the usual place of alighting from a stage coach is at an inn- 
 yard, it has been decided that passengers cannot be compelled to 
 get out even at the inn-gate. {Dudley v. Smith, supra.) 
 
 352. Carriers of passengers impliedly undertake to 
 carry passengers within reasonable time and with 
 reasonable speed. 
 
 In an action by a passenger against a carrier for breach of tlie 
 contract to deliver him at his destination, he may claim as damages 
 
 II
 
 CARRIERS OF PASSENGERS BY ROAD. 509 
 
 tlie expense of getting there by other means, if there he any, or Ch^ xxi. 
 
 compensation for the trouble and inconvenience of walking there, 
 
 if there be no other means of getting there, because it is the direct 
 object contemplated in the contract that he should reach his desti- 
 nation ; but he is not entitled to claim compensation for an acci- 
 dental injury or illness occasioned to him in the course of reaching 
 his destination by such means, for such consequences are neither 
 the proximate consequence of the breach of contract nor within the 
 contemplation of the parties at the time of contracting. {Hobhs v. 
 L. ^ S. W. Ry. Co., L. E. 10 Q. B. Ill ; 44 L. J. Q. B. 49 ; 
 ante, Aii. 328.) 
 
 363. Passenger carriers, not being insurers, are not 
 responsible for accidents where all reasonable skill and 
 diligence have been employed. Passenger carriers 
 bind themselves to carry safely those whom they take . 
 into their coaches, as far as human care and foresight 
 will go, and are responsible for any, even the slightest, 
 neglect. {Aston v. Heaven, 2 Esp. 533 ; Christie v. 
 Griggs, 2 Camp. 79.) ^ 
 
 In all cases of negligent and improvident driving by a servant 
 employed to drive, the master will be responsible if the servant 
 was driving about the master's business, or using the master's 
 horses and carriage for the master's benefit ; and the master cannot 
 exonerate himself from liability by showing that the servant was 
 acting in disobedience of his orders. Where, therefore, an omnibus 
 company gave written instructions to their drivers " to drive at a 
 steady pace, and not on any account to race with or obstruct other 
 omnibuses," and a driver disobeyed these instructions, and wilfully 
 drew across the road to obstruct another omnibus, and ran against . 
 it and upset it, it w^as held that the instructions given by the 
 omnibus company to their servants could not exonerate the com- 
 pany from responsibility for the careless, wilful, and malicious acts
 
 510 THE LAW OF CARRIERS. 
 
 Ch. XXI. Qf ^xxch servants while carrying passengers for the benefit of the 
 
 Art. 35o. __ _ 
 
 company. {Limims v. L. G. Omnibus Co., 1 H. & C. 526 ; 32 L. J. 
 
 Ex. 34.) 
 
 A cabdriver, employed on the usual terms of paying so much a 
 day for his cab and horse and keeping the rest himself, is, as be- 
 tween the cab proprietor and the public, by virtue of the Acts re- 
 lating to the subject, the servant of the proprietor, who is therefore 
 liable for the cabdriver's negligence while acting within the scope 
 of the purposes for which the cab is intrusted to him. {Powles v. 
 Hider, 6 E. & B. 207 ; 25 L. J. Q. B. 331 ; Vembles v. Simf/i, 
 2 Q. B. D. 279 ; 46 L. J. Q. B. 470.) But where the cabdriver 
 hires the cab only, and he himself provides a horse, he is not the 
 servant of the proprietor of the cab so as to make the latter liable 
 for his negligence. {Kinrj v. Spun; 8 Q. B. D. 104 ; 51 L. J. Q. B. 
 105. See Addison on Torts, p. 102.) 
 
 "Where an injury is sustained by a passenger, from an inevitable 
 accident, the owner of the conveyance is not liable, provided there 
 was no negligence in the driver. {Aston v. Heaven, 2 Esp. 533.) 
 
 As to contributory negligence by passenger, see ante, Art. 337. 
 
 As to liability to the representatives of a passenger killed by an 
 accident, see ante, Art. 335. 
 
 The whole subject was thoroughly examined by the Supreme 
 Court of the United States, in the case of Stokes v. Saltonstall. 
 (13 Peters, 181—193.) 
 
 " When everything has been done which human prudence, care, 
 and foresight can suggest, accidents may happen. The lights 
 may in a dark night be obscured by fog; the horses may be 
 frightened ; the coachman may be deceived by the sudden altera- 
 tion of objects on the road; the coach may be upset accidentally 
 by striking another vehicle, or by meeting with an unexpected 
 obstruction ; or from the intense severity of the cold the coach- 
 man, although possessed of all proper skill, and taking all due 
 and reasonable care, may at the time become physically incapable 
 of managing his horses, or of otherwise doing his duty {Stokes v. 
 Saltonstall, supra) : in all these, and tlie like cases, if there is no 
 
 I
 
 CARRIERS OF PASSENGERS BY ROAD. 611 
 
 negligence whatsoever, the coach proprietors are exonerated." Ch. xxi. 
 
 (Story on Bailm. ; Crofts v. Waterhouse, 3 Bing. 319 ; Christie v. • 
 
 Griggs, 2 Camp. 79.) 
 
 364. Carriers of passengers are bound to provide 
 conveyances reasonably strong and sufficient for the 
 journey, with suitable harness, trappings, and equip- 
 ments; and to make a proper examination thereof 
 previous to each journey. (Bremner v. Williams, 1 Car. 
 & P. 414; Christie v. Griggs, 2 Camp. 80; Camden Sf 
 Amboy Rij. Co. v. BurJce, 13 Wend. 611, G28.) 
 
 This and the following article only state what amounts to negli- 
 gence within the meaning of Article 353. 
 
 Carriers of passengers are bound not to overload the coach either 
 with passengers or with luggage ; and they are to take care that 
 the weight is suitably adjusted so that the coach is not top-heavy 
 and made liable to overset. {Long v. Home, 1 Car. & P. 612 ; 
 Israel v. Clark, 4 Esp. 259.) 
 
 A custom and usage of so overloading their coaches with goods, 
 luggage, or passengers, is no excuse for the act. {Dewort v. 
 Loonier, 21 Conn. 246.) 
 
 355. Carriers of passengers are bound to provide 
 careful drivers, of reasonable skill and good habits, for 
 the journey; and to employ horses which are steady, 
 and not vicious, or likely to endanger the safety of the 
 passenger. [Christie v. Griggs, 2 Camp. 79; Crofts 
 V. Waterhouse, 3 Bing. 321 ; Hall v. Connecticut R. 
 Steamboat Co., 13 Conn. 319; Fuller v. Talbot, 23 
 111. 357.) 
 
 " The coachman must have competent skill ; he must bo well 
 acquainted with the road he undertakes to drive ; he must bo pro-
 
 512 THE LAW OF CAREIERB. 
 
 Ch. XXI. vided with steady horses, a coacli and harness of sufficient strength, 
 
 ^^rt. odd* • 
 
 -7 and properly made, and also with lights hy night. If there is the 
 
 least failure in any of these things, the duty of the coach proprie- 
 tors is not fulfilled, and they are responsible for any injury or 
 damage that happens." {Per Best, C. J., in Crofts v. Water/wuse, 
 3 Bing. 321.) 
 
 If the driver overloads the carriage, or drives with immoderate 
 speed, or with defective reins, or with reins so loose that he cannot 
 readily command his horses, or if he passes unnecessarily along 
 unsafe parts of the road, or through narrow gateways, &c., and a 
 collision occurs, the proprietor of the carriage will he answerable 
 for injuries sustained by the passenger. (Aston v. Heaven, 2 Esp. 
 535 ; Breniner v. Williams, 1 Car. & P. 414 ; see Addison on Con- 
 tracts, 8th ed., p. 520.) 
 
 There may be occasions upon which it becomes the duty of the 
 driver to deviate, to a reasonable extent, from the proper side of the 
 road. [Wayde v. Carr, 2 Dow. & R. 255.) In that case the Court 
 said, " Whatever might be the law of the road, it was not to be 
 considered as inflexible and imperatively governing a case of this 
 description. In the crowded streets of a metropolis, where this 
 accident happened, situations and circumstances might frequently 
 arise where a deviation from what is called ' the law of the road ' 
 would not only be justifiable but absolutely necessary. Of this the 
 jury were the best judges." 
 
 In an action against an omnibus proprietor for injury to a pas- 
 senger, it was proved, on behalf of the latter, that he was sitting 
 inside the omnibus and was injured by one of the horses kicking 
 the front panel, constituting the back of his seat, and that on a 
 subsequent examination marks of other kicks were seen. It was 
 held that there was evidence of negligence of the defendants to go 
 to the jury. {Simson v. L. G. Omnibus Co., L. E. 8 C. P. 390; 
 42 L. J. 0. P. 112.) 
 
 Bovill, C. J ., said, " It is quite true that the defendants did not 
 absolutely warrant the plaintiff's safety or the sufficiency of the 
 ca-rriage and horses, and that they were only bound to use due and
 
 CARRIERS OF PASSENGERS BY ROAD. 513 
 
 reasonable care for the safety of passengers, and it is true tliat tlie Ch. xxi. 
 
 mere fact of an aceidout is not generally printd facie evidence of ^ 
 
 negligence ; but if the cause of the accident be shown, this may or 
 may not be printd facie evidence according to its nature. In the 
 case of a public carriage, the oa-ner is bound to use due aud reason- 
 able care that there are proper Jion^es which are not dangerous to 
 the passengers ; and as respects his liability, it is not necessary to 
 show that he was aware that they were improper or dangerous." 
 
 356. Persons driving- caiTiao;es arc bound to exer- 
 cise all possible diligence to avoid driving against foot 
 j^assengers, wlio have a right to cross the highway, 
 and if tliey do not exercise such diligence, and any 
 accident happens to the foot-passenger, they will be 
 responsible therefor. (^Cotteriil v. Star/cef/, 8 Car. & P. 
 691.) 
 
 If a person driving on the road cannot pull up, because his reins 
 break, that is no ground of defence for an injury done to a foot- 
 passenger; because he is bound to have proper harness. {Ihid.) 
 
 367. Carriers of passengers are bound to receive 
 and to take care of the usual luggage which it is cus- 
 tomary to allow every passenger to carry for the 
 journey although they receive no specific compensation 
 therefor, but simply receive their fare for the convey- 
 ance of the passenger. (Rohmsou v. Dunmurc, 2 Bos. 
 & Pul. 41G. Sec ante, pp. 15, 16.) 
 
 It has been held that a cab proprietor is not a common carrier of 
 luggage taken with the passenger. {Ross v. UiH, 2 C. B. 877 ; 
 Foicles V. Hider, 6 E. & B. 207.) 
 
 A passenger carrier has a lien upon the luggage of the passenger 
 
 M. L L
 
 514 THE LAW OF CARRIERS. 
 
 Ch. XXI. for his fare ; but not a lien on the person of the passenger, or the 
 '— — '- clothes he has on. {JFo/fv. Suiiimers, 2 Camp. 631.) 
 
 II. — In the Metropolis. 
 
 358. Every hackney carriage standing in any street 
 or place, and having thereon any of the numbered 
 plates required by law to be affixed, is, unless actually 
 hired, deemed to l^e plying for hire, although such 
 hackney carriage is not on any standing or place 
 usually ajDprojiriated for the purpose of hackney car- 
 riages standing or plying for hire ; and the driver of 
 every such hackney carriage Avhich is not actually 
 hired is obliged and compellable to go with any person 
 desirous of hiring such hackney carriage. (1 & 2 
 Wm. 4, c. 22, s. 35.) 
 
 The driver of every such hackney carriage must, if 
 required by the hirer thereof, carry in and by such 
 carriage the number of persons painted or marked 
 thereon, or any less number of persons. (16 & 17 
 Vict. c. 33, s. 9.) 
 
 The " cabs " and " omnibuses " of London are called in the 
 statutes relating to them " metropolitan hackney carriages " and 
 " metropolitan stage carriages." A hackney carriage whilst on 
 the premises of a railway company by their leave for the accom- 
 modation of passengers by their trains is not " plying for hire " in 
 any "street or place" within the meaning of the Hackney Car- 
 riage Acts, and the driver of such carriage cannot under those 
 Acts be compelled to convey any person desirous of hiring it. 
 Scinhle {per Bramwell, B.), if the driver consent to be hired, the 
 regulations of the Hackney Carriage Acts as to the amount of fare 
 payable will attach. {Case v. Store//, L. H. 4 Ex. 319 ; 38 
 L. J. M. C. 113.)
 
 CARRIERS OF PASSENGEBS BY ROAD. 515 
 
 Drivors of cabs may stand and ply for hire with sucli carriaf^es Ch. XXI. 
 
 Art 358 
 on Sunday, and if they do so are liahlo and compellable to do the ^ '- 
 
 like work on Sunday as they are on other days. (1 & 2 Will. 4, 
 
 c. 22, s. 37. See ante, p. 55.) 
 
 359. The driver of every hackney carriage which 
 plies for hire must (unless such driver have a reason- 
 able excuse, to be allowed by the magistrate before 
 whom the matter shall be brought in question) drive 
 such hackney carriage to any place to Avliich he shall 
 be required by the hirer thereof to drive the same, not 
 exceeding six miles from the place of hiring, or for 
 any time not exceeding one hour from tlic time when 
 hired. When hired by distance the driver must drive 
 at a reasonable and proper speed, not less than six 
 miles an hour, except in cases of unavoidable delay, 
 or when required by the hirer thereof to drive at any 
 slower place. When hired by time the driver may be 
 required to drive at any rate not exceeding four miles 
 an hour, Ixit if required to drire more than four miles 
 an hour the driver is entitled to demand, in addition 
 to the fare regulated by time, for every mile or part 
 of a mile exceeding four miles the fare regulated by 
 distance. (16 & 17 Vict. c. 33, s. 7.) 
 
 That the horse is tired has been held by magistrates to be a 
 reasonable excuse. 
 
 360. The driver of every hackney carriage is 
 bound to carry in or upon it a reasonable quantity of 
 luggage for every person hiring it. (16 & 17 Vict, 
 c. 33, s. 10. See ante, p. 19.) 
 
 If any luggage is carried outside the hackney car- 
 
 1. 1, 2
 
 oi6 THE LAW OF CARRIERS. 
 
 Art^eo' I'i^o^ ^^^^ driver is entitled to an extra payment of 
 2d. for every package carried outside, whatever may 
 be the number of passengers carried. (Order made 
 luider powers contained in 32 & 33 Vict. c. 115.) 
 
 361. Cab fares may be according to distance or 
 time, at the option of the hirer, expressed at the com- 
 mencement of the hiring. If not otherwise expressed, 
 the fare is to be paid according to distance. (Order 
 made under 32 & 33 Vict. c. 1 15.) 
 
 Whether the hiring be by distance or by time, the driver is 
 entitled to charge, in addition to what is due to him for distance 
 or time, as the case may be, an extra payment of 6d. if at any 
 time during the hii'ing more than two persons are carried together 
 for ever}^ person above two persons so carried. Provided that two 
 children under the age of ten years must count for one person, and 
 for any one such child when carried together with two or more 
 persons, the extra payment must be 3d., and no more. (Order 
 made under 32 & 33 Vict. c. 115.) 
 
 When a hackney carriage is hired by distance, and the liirer 
 requires the driver to stop such carriage for fifteen minutes, or for 
 any longer time, the driver may demand and receive from the 
 hirer so requiring him to stop a further sum (above the fare to 
 which he sliall be entitled, calculated according to the distance) of 
 6d. for every fifteen minutes completed that he shall have been so 
 stopped. No driver is to demand or receive over and above the 
 fare any sum by way of back fare from the place at which the 
 carriage is discharged. 
 
 862. Every driver or conductor of an omnibus 
 who refuses to admit and carry at the lawful fare any 
 passenger for whom there is room, and to whose 
 
 II
 
 CARRIERS OF FASSENO'ERS BY ROAD. 517 
 
 admission no reasonable objection is made, or wlio ch. xxi. 
 
 •^ ' Art. 362. 
 
 demands more than tlie legal fare for any passenger, 
 is liable to a fine of 20-5. (6 & 7 Vict. c. 86, s. 33.) 
 
 363. There must be kept distinctly painted, in 
 a conspicuous manner, on the inside of every metro- 
 politan stage carriage, a table of the fares to be 
 demanded of the passengers. The fares specified in 
 this table are to be deemed to be the only lawful 
 fares ; and may be recovered by the driver or con- 
 ductor, as in the case of liackney carriages, before a 
 magistrate. (6 & 7 Vict. c. 86, s. 7.) 
 
 The legislature has fixed the tariff for the hire of cabs {antCy 
 p. 516), but has permitted omnibus proprietors to fix their own 
 scale of charges. 
 
 Luggage must be paid for extra. See ante, p. 10. 
 
 The driver or conductor of an omnibus who receives a parcel to 
 carry, even without any reward or gratuity, is personally re- 
 sponsible for its loss through gross negligence on his part. 
 {Bcaucharn}) v. Poiclc)/, 1 Moo. & R. 38, auto, p. 31.)
 
 II
 
 APPENDIX. 
 
 The Railicay and Canal Traffic Act, 1854, sects. 1 ^'2. . 519 
 
 The liegnlation of Raihcarjs Art, 1873 520 
 
 The Railway and Canal Traffic Act, 1888 527 
 
 (17 & 18 Vict. c. 31.) 
 
 All Act for the better Regulation of the Traffic on Railways and 
 Canals. [lOth July, 1854.] 
 
 Whereas it is expedient to make better provision for regulating the 
 traffic on railways and canals : Be it enacted (&c., &c.), as follows : 
 
 1. In the construction of this Act — 
 
 The word "traffic" shall include not only passengers, and their "Traffic." 
 luggage, and goods, animals and other things conveyed by any 
 railway company or canal company, or railway and canal 
 company, but also carriages, waggons, trucks, boats and 
 vehicles of every description adapted for running or passing on 
 the railway or canal of any such company : 
 
 The Avord "railway" shall include ever}' station of or belonging "Railway." 
 to such railway used for the purposes of public tratRc ; and 
 
 The word "canal" shall include any navigation whereon tolls are "Canal." 
 levied b}'- authority of Parliament, and also the wharves and 
 landing places of and belonging to such canal or navigation, 
 and used for the purposes of public traffic : 
 
 The expression "railway company," "canal company," or "rail- "Company." 
 way and canal company" shall include any person being the 
 owner or lessee of or any contractor working any railway or 
 canal, or navigation constructed or carried on under the powers 
 of any Act of Parliament : 
 
 A station, terminus or wharf shall be deemed to be near another "Stations." 
 station, terminus or wharf when the distance between siich 
 stations, termini or wharves shall not exceed one mile, such 
 stations not being situate within five miles from St. Paul's 
 Church, in London.
 
 620 
 
 ArrEXDix. 
 
 Sect. 2. 
 
 Duty of 
 railway 
 companies 
 to make 
 arrangements 
 for receiving 
 and forward- 
 ing traific, 
 without un- 
 reasonable 
 delay, and 
 without 
 partiality. 
 
 2. 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, trucks, boats and other vehicles, and no such company 
 shall make or give any undue or unreasonable preference or advan- 
 tage to or in favom- 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 preju- 
 dice or disadvantage in any respect whatsoever ; and every railway 
 company and canal company and railway and canal company having 
 or working railways or canals which form part of a continuous line 
 of railway or canal or railwa}^ and canal communication, or which 
 have the terminus, station or wharf of the one near the terminus, 
 station or wharf of the other, shall afford all due and reason- 
 able facilities for receiving and forwarding all the traffic arriving 
 by one of such railways or canals by the other, without any im- 
 reasonable delay, and without any such preference or advantage or 
 prejudice or disadvantage, as aforesaid, and so that no obstruction 
 may be offered to the public desiroiis of using such railways or 
 canals or railways and canals as a continuous line of communication, 
 and so that all reasonable accommodation may, by means of the 
 railways and canals of the several companies, be at all times afforded 
 to the public in that behalf («). 
 
 Definitions. 
 
 (36 & 37 Vict. c. 48.) 
 
 An Act to mahe better j^rovisinn for carrying into effect the Railway 
 and Canal Traffic Act^ 1854, and for other purposes connected 
 therewith. [21st July, 1873.] 
 
 Be it enacted (&c., &c.), as follows : — 
 
 ■i;. ■it- A- ^.' 'Sf 
 
 3. In this Act — 
 
 The term " railway company " includes any person being the 
 
 owner or lessee of or working any railway in the United 
 
 Kingdom constructed or carried on under the powers of any 
 
 Act of Parliament : 
 The term " canal company " includes any person being the owner 
 
 or lessee of, or working, or entitled to charge tolls for the use 
 
 {a) As to the part of this section which deals with the granting of due and 
 reasonable facilities, sec ante, Chap. XIV., p. 2.51 ; and as to giving an imdue 
 preference, ante, Chap. XV., p. 332.
 
 THE REG ULA TION OF RAIL WA YS A CT, 1 S73. 621 
 
 of any canal in the United Kingdom constructed or carried on Sect. 3. 
 under the powers of any Act of Parliament : 
 
 The term " person " includes a body of persons corporate or un- 
 incorporate : 
 
 The term " railway " includes every station, siding, Avharf, or 
 dock of or belonging to such railway and used for the purposes 
 of public traffic : 
 
 The term " canal " includes any navigation -which has been made 
 under or upon whicli tolls may be levied by authority of Par- 
 liament, and also the -wharves and landing-places of and be- 
 longing to such canal or navigation, and used for the purposes 
 of public traffic : 
 
 The term "traffic" includes not only passengers and their 
 luggage, goods, animals, and other things convej'ed by any 
 railway company or canal company, but also carriages, wag- 
 gons, trucks, boats, and vehicles of every description adapted 
 for running or passing on the railway or canal of any such 
 company : 
 
 The term "mails " includes mail bags and post-letter bags : 
 
 The term "special Act" means a local or local and personal Act, 
 or an Act of a local and personal nature, and includes a Pi-o- 
 visional Order of the Board of Trade confirmed by Act of Par- 
 liament, and a certificate gi-anted by the Board of Trade under 
 the Railways Construction Facilities Act, 1864 : 
 
 The term "the Treasuiy " means the Commissioners of her 
 Majesty's Treasury for the time being. 
 
 •::- ■» i:- i:- «f 
 
 5. Any person appointed a Commissioner under this Act shall Commis- 
 within three calendar months after his appointment absolutely sell sioners not to 
 and dispose of any stock, share, debenture stock, debenture bond, ]*^ interested 
 or other security of any railway or canal company in the United ^^^l ^oJk°^ 
 Kingdom which he shall at the time of his appointment own or be 
 interested in for his own benefit ; and it shall not be lawful for any 
 person appointed a Commissioner under this Act, so long as he 
 shall hold office as sucli Commissioner, to purchase, take, or become 
 interested in for his own benefit any such stock, share, debenture 
 stock, debenture bond, or other security ; and if any such stock, 
 share, debenture stock, debenture bond, or other security, or any 
 interest therein, shall come to or vest in such Commissioner by will 
 or succession, for his own benefit, he shall, within three calendar 
 months after the same shall so come to or vest in him absolutely, 
 sell and dispose of the same or his interest therein. 
 
 It shall not be lawful for the Commissioners, except by consent 
 of the parties to the proceedings, to exercise any jurisdiction by 
 this Act conferred upon them in any case in whicli they shall be 
 directly or indirectly interested in the matter in question. 
 
 The Commissioners shall devote the wliole of their time to the 
 performance of their duties under this Act, and shall not accept 
 or hold any office or employment inconsistent with this pro- 
 ■vision.
 
 522 
 
 APPENDIX. 
 
 Sect. 6. 
 
 6. Any person complaining of anything done or of any omission. 
 made iu violation or contravention of section two of tlie Eaihvay 
 and Canal Traffic Act, 1854, or of section sixteen of the Eegidation 
 of Eailways Act, 1868 {a), or oftliis Act, or of any enactment amend- 
 ing or applying tlie said enactments respectively, may apply to tlie 
 
 3. 3. 
 
 Transfer to 
 Commis- 
 sioners of 
 jurisdiction 
 
 under 17 & 18 Commissioners, and upon the certificate of the Board of Trade 
 "Vict. c. 31, alleging an}' such violation or contravention any person appointed 
 by the Board of Trade in that behalf may in like manner apply to 
 the Commissioners ; and for the purpose of enabling the Commis- 
 sioners to hear and determine the matter of any such complaint, they 
 shall have and may exercise all the jurisdiction conferred b}' section 
 three of the Railway and Canal Traffic Act, 1854, on the several 
 courts and judges empowered to hear and determine complaints 
 under that Act ; and may make orders of like nature with the writs 
 and orders authorised to be issued and made by the said courts and 
 judges ; and the said courts and judges shall, except for the purpose 
 of enforcing any decision or order of the Commissioners, cease to 
 exercise the jurisdiction conferred on them by that section. 
 
 Power for 
 Commis- 
 sioners to 
 enable com- 
 panies to 
 explain 
 alleged 
 violation of 
 law. 
 
 Differences 
 between 
 railway and 
 canal com- 
 panies to be 
 referred to 
 Commis- 
 
 Power to 
 refer dif- 
 ferences to 
 Commis- 
 sioners. 
 
 7. Where the Commissioners have received any complaint 
 alleging the infringement by a railway company or canal company 
 of the provisions of any enactment in respect of wliich the Commis- 
 sioners have jurisdiction, they may, if they think fit, before requiring 
 or permitting any formal proceedings to be taken on such complaint, 
 communicate the same to the company against whom it is made, so 
 as to afford them an opportunity of making such observations 
 thereon as they may think fit. 
 
 8. AVhere any difference between railway companies or between 
 canal companies, or between a railway company and a canal com- 
 pany, is, under the provisions of any general or special Act, passed 
 either before or after the passing of this Act, required or autho- 
 rised to be referred to arbitration, such difference shall at the 
 instance of any company party to the difference and with the 
 consent of the Commissioners be referred to the Commissioners for 
 their decision in lieu of being referred to arbitration : Provided 
 that the power of compelling a reference to the Commissioners in 
 this section contained shall not apply to any case in which any 
 arbitrator has in any general or special Act been designated by 
 his name or by the name of liis office, or in which, a standing 
 arbitrator having been appointed under an}' general or special Act, 
 the Commissioners are of opinion that the difference in question 
 may more conveniently be referred to him (h). 
 
 9. Any difference to which a railway company or canal company 
 is a party, may, on the application of the parties to the difference, 
 and with the assent of the Commissioners, be referred to them for 
 their decision. 
 
 {a) Ante, p. 313. 
 
 (h) Tliis section is amended by sect. 15 of 51 k 52 Vict. c. 25, post, p. 532.
 
 THE REGULATION OF JUILWAIS ACT, 187o. 523 
 
 10. The following' powers and duties of the Board of Trade shall sect. 10. 
 be transferred to the Commissioners ; namely, 
 
 (1.) The powers of the Board of Trade under Part III. of the J^^^^^';'' *° 
 Eailway Clauses Act, 18G3, or under any special Act, with gio^g^g^Jf 
 respect to the approval of working agreements between certain powers 
 railway companies ; and, and duties of 
 
 (2.) The powers and duties of the Board of Trade under section t^e Board 
 thirty-five of the Eailway Clauses Act, 18G3, with respect of Trade. ^ 
 to the exercise by railway companies of their powers in ao 
 relation to steam vessels : 
 And the provisions of the said Acts conferring such powers or 
 imposing such cbities, or otherwise referring to such powers or 
 duties, shall, so far as is consistent with the tenor thereof, be read 
 as if the Commissioners were therein named instead of the Board 
 of Trade. 
 
 14. Every railway company and canal company shall keep at Publication 
 each of their stations and wharves a book or books showing every of rates, 
 rate for the time being charged for the carriage of traffic, other 
 
 than passengers and their luggage, from that station or wharf to 
 any place to which they book, including any rates charged under 
 any special contract, and stating the distance from that station or 
 wharf of every station, wharf, siding, or place to which any such 
 rate is charged. 
 
 Every such book shall during all reasonable hours be open to the 
 inspection of any person without the payment of any fee (c). 
 
 The Commissioners may from time to time, on the application 
 of any person interested, make orders with respect to any particular 
 description of traffic, requiring a railway company or canal company 
 to distinguish in such book how much of each rate is for the con- 
 veyance of the traffic on the railway or canal, including therein tolls 
 for the use of the railway or canal, for the use of carriages or ves- 
 sels, or for locomotive power, and how much is for other expenses, 
 specifying the nature and detail of such other expenses (d). 
 
 Any company failing to comply with the provisions of this section 
 shall for each offence, and in the case of a continuing offence, for 
 every day during which the offence continues, be liable to a penalty 
 not exceeding five pounds, and such penalty shall be recovered and 
 applied in the same manner as penalties imposed by the Eailways 
 Clauses Consolidation Act, 1845, and the Eailways Clauses Consoli- 
 dation (Scotland) Act, 1845, (as the case may require,) arc for the 
 time being recoverable and applicable. 
 
 15. The Commissioners shall have power to hear and determine Tower to 
 any question or dispute which may arise with respect to the terminal Commis- 
 
 (c) See sects. 28, 33, and 34 of 51 & 52 Vict. c. 25, posl, pp. 510, 513, and 
 ante, Article 217, p. 232. 
 
 {d) See ante, Article 218, p. 23G.
 
 524 
 
 APPEXDIX. 
 
 Sect. 15. 
 
 pioners to fix 
 
 terminal 
 
 charores. 
 
 Arrange- 
 ments 
 between 
 railway 
 companies 
 and canal 
 companies. 
 
 Maintenance 
 of canals by 
 railway 
 companies. 
 
 charges of any railway company, Trhere such charges have not been 
 fixed by any Act of Parliament, and to decide what is a reasonable 
 sum to be paid to any company for loading and unloading, covering, 
 collection, delivery, and other services of a like nature ; any decision 
 of the Commissioners under this section shall be binding on all 
 courts and in all legal proceedings whatsoever (e}. 
 
 16. Xo railway company or canal company, unless expressly 
 authorised thereto by any Act passed before the passing of this Act, 
 shall, without the sanction of the Commissioners, to be signified in 
 such manner as they may by general order or otherwise direct, enter 
 into any agreement whereby any control over or right to interfere 
 in or concerning the traffic carried or rates or tolls levied on any 
 part of a canal is given to the railway company, or any persons 
 managing- or connected with the management of any railway ; and 
 any such agi-eement made after the commencement of this Act with- 
 out such sanction shall be void. 
 
 The Commissioners shall withhold their sanction from any such 
 agreement which is in their opinion prejudicial to the interests of 
 the public. 
 
 Not less than one month before an}' such agreement is so sanc- 
 tioned, copies of the intended agreement certified under the hand of 
 the secretary of the railway company or one of the railway com- 
 panies party or parties thereto, shall be deposited for public inspec- 
 tion at the office of the Commissioners, and also at the office of the 
 clerk of the peace of the county, riding, or division in England or 
 Ireland in which the head office of any canal company party to the 
 agreement is situate, and at the office of the principal sheriff clerk 
 of every such county in Scotland, and notice of the intended agree- 
 ment, setting forth the parties between whom or on whose behalf 
 the same is intended to be made, and such further particulars with 
 respect thereto as the Commissioners may require, shall be given 
 by advertisement in the London, Edinburgh, or Dublin Gazette, 
 according as the head office of any canal company party to the 
 agreement is situate in England, Scotland, or Ireland, and shall be 
 sent to the secretary or principal officer of every canal company any 
 of whose canals communicates with the canal of any company party 
 to the agreement ; and shall be published in such other way, if any, 
 as the Commissioners for the purpose of giving notice to all parties 
 interested therein by order direct (/). 
 
 17. Every railway company owning or having the management 
 of any canal or part of a canal shall at all times keep and maintain 
 such canal or part, and all the reservoirs, works, and conveniences 
 thereto belonging, thoroughly repaired and dredged and in good 
 ■working condition, and shall preserve the supplies of water to the 
 same, so that the whole of such canal or part may be at aU times 
 
 (e) See sect. 10 of 51 & 52 Vict. c. 25, post, p. 530, and sect. 37, p. 544. As to 
 what " terminal charges " includes, see sect. 55 of 51 & 52 Vict. c. 2o, jjost, p. 552. 
 (/) See Tart III. of 51 >k 52 Vict. c. 25, jjost, p. 544.
 
 THE REGriATION OF RAILWAYS ACT, 1873. 525 
 
 kept open and navigable for the iiso of all persons desirous to use sect. 17. 
 
 and navigate the same without any unnecessary hindrance, inter- 
 
 ruption, or delay. 
 
 Conveyance of Alcdls. 
 
 18. Every railway company shall convey by any train all such Conveyance 
 mails as may be tendered for conveyance by such train, whether of mails, 
 such mails be under the charge of a guard appointed by the Post- 
 master General or not, and notwithstanding that no notice in writing 
 requiring mails to be conveyed by such train has been given to the 
 company by the Postmaster General. 
 
 Every railway company shall afford all reasonable facilities for 
 the receijit and delivery of mails at any of their stations without re- 
 quiring them to be booked or interposing anj- other delay. 
 
 AVhere the mails are in charge of a guard appointed by the Post- 
 naaster General, every railway company shall permit such guard, if 
 he think fit, to receive and deliver them at any station by himself 
 or his assistants, rendering him nevertheless such aid as he may 
 require. 
 
 19. Every railway comjmny shall be entitled to reasonable re- Remuneration 
 muneration for any services performed by them in pursuance of this for convey- 
 Act with respect to the conveyance of mails, and such remuneration ^""^o oi 
 shall be paid by the Postmaster General. 
 
 Any difference between the Postmaster General and any railway 
 company as to the amount of such remuneration, or as to any other 
 question arising under this Act, shall be decided by arbitration, in 
 manner provided by the Act of the session of the first and second 
 years of the reign of her present Majesty, chapter ninety-eight, or, 
 at the option of such railway company, by the Commissioners. 
 
 20. Where a railway company use, maintain, or work, or are Conveyance 
 party to any arrangement for using, maintaining, or working of mails on 
 steam vessels for the jjui-pose of carrying on a communication «teami 
 between any towns or ports, all provisions contained in any Act '^^'^^®^^- 
 with respect to the conveyance of mails by railways shall, so far 
 
 as they are a^jplicable to the conveyance of mails by steam vessels, 
 extend to the steam vessels so used, maintained or worked. 
 
 Regulations as to Commissw7ie)'s. 
 * ir n- a- ■a- 
 
 26. Any decision or any order made by the Commissioners for the Orders of 
 purpose of carrying into effect any of the provisions of this Act may Commis- 
 be made a rule or order of any superior court, and shall be enforced '^'oners. 
 either in the manner directed by section three of the Railway and Canal 
 Traffic Act, 1854, as to the writs and orders therein mentioned, or 
 in like manner as any rule or order of such court. 
 
 For the purpose of carrying into effect this section, general rules 
 and orders may be made by any superior court in the same manner
 
 626 
 
 APPENDIX. 
 
 Sect. 26. 
 
 Sittings of 
 Commis- 
 sioners. 
 
 E%ddenno of 
 documents. 
 
 Commis- 
 sioners to 
 make annual 
 reports. 
 
 Determina- 
 tion of fees. 
 
 Collection of 
 fees. 
 
 Notices how 
 to be given. 
 
 as general rules and orders may l30 made with respect to any otter 
 
 proceedings in such, court. 
 
 i:- ■» •» a- ■» 
 
 27. The Commissioners shall sit at such times and in such places 
 
 and conduct their proceedings in such manner as may seem to them 
 
 most convenient for the speedy despatch of business; they may, 
 
 subject as in this Act mentioned, sit either together or separately, 
 
 and either in private or in open com-t, but any complaint made to 
 
 them shall, on the application of any party to the complaint, bo 
 
 heard and determined in open court (ff). 
 
 •};. •::• *f M* ■A- 
 
 30. Every document purporting to be sign ed by the Commissioners, 
 or any one of them, shall be received in evidence -without proof of 
 such signature, and until the contrary is proved shall be deemed to 
 have been so signed and to have been duly executed or issued by 
 the Commissioners. 
 
 31. The Commissioners shall, once in every year, make a report 
 to her JVlajesty of their proceedings under this Act during the past 
 year, and such report shall be laid before both Houses of Parliament 
 within fourteen days after the making thereof if Parliament is then 
 sitting, and if not, then within fourteen days after the next meeting 
 of Parliament. 
 
 Jliscellaneous. 
 
 32. The Commissioners may, at any time after the passing of this 
 Act, by general order, with the concurrence of the Treasury, appoint 
 the fees to be taken in relation to proceedings before them, and may 
 fi'om time to time, by general order, with the like concurrence, 
 increase, reduce, or abolish all or any of such fees, and appoint new 
 fees to be taken in relation to such proceedings. 
 
 33. The PiibHc Offices Fees Act, 1866, shall apply to all fees 
 taken in relation to any proceedings before the Commissioners (A). 
 
 Any fee or payment in the nature or lieu of a fee paid in respect 
 of any proceedings before the Commissioners and collected otherwise 
 than by means of stamps shall be paid into the receipt of her 
 Majesty's Exchequer in such manner as the Treasury from time to 
 time direct, and carried to the Consohdated Fund. 
 
 * * * * 'v 
 
 35. Any notice required or authorised to be given under this Act 
 may be in writing or in print, or partly in writing and partly in 
 print, and may be sent by post, and if sent by post shall be deemed 
 to have been received at the time when the letter containing the 
 same would have been deUvered in the ordinary course of the post ; 
 and in proving such sending it shall be sufficient to prove that the 
 letter containing the notice was prepaid and properly addressed and 
 put into a post office. 
 
 iff) See sect. 5 of 51 & 52 Vict. c. 25, post, p. 528. 
 
 {h) The Public Offices Fees Act, 1866, is repealed by the Public Offices Fees 
 Act, 1879 (42 & 43 Vict. c. 58), which is substituted for it.
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 527 
 
 36. In the application of this Act to Scotland — Sect. 36. 
 (1.) The term "attending oh subpoena before a Court of Record" ; — -; 
 
 means attending on citation the Court of Justiciary : Application 
 
 (2.) The Queen's and Lord Treasurer's Eemembrancer shall Scotland 
 
 perform the duties of a master of one of the superior courts 
 
 under this Act. 
 
 (51 & 52 Vict. c. 25.) 
 
 An Act for the better licgulation of Railwai/ and Canal Traffic, and 
 for other purposes. [10th August, 1888.] 
 
 Be it enacted (&c., &c.), as follows : 
 
 1. This Act may be cited as the Railway and Canal Traffic Act, Short title 
 1888. and con - 
 
 This Act shall be construed as one with the Eegulation of Rail- stmction. 
 waj-s Act, 1873, and the Acts amending it ; and those Acts and this 36 & 37 Vict. 
 Act may be cited together as the Railway and Canal Traffic Acts, ^- ■^^• 
 1873 and 1888. 
 
 Part I. — Court and Procedure of Railway aj^d Caxal 
 
 CoiIMISSIOXEKS. 
 
 Establishment of Rail way and Canal Commission. 
 
 2. On the expiration of the provisions of the Regulation of Rail- Establish- 
 ways Act, 1873, with respect to the Commissioners therein mentioned, ment of new- 
 there shall be established a new Commission, styled the Railway ^^^i^^s^y 
 and Canal Commission (in this Act referred to as the Commissioners), Commission 
 and consisting of two appointed and three e.T officio Commissioners ; 
 
 and such Commission shall be a court of record, and have an official 
 seal, which shall be judicially noticed. The Commissioners may act 
 notwithstanding any vacancy in their body. 
 
 3. — (1.) The two appointed Commissioners may bo appointed by Appointment 
 her Majesty at any time after the passing of this Act, ancl from time ^°*^ J.^"^^^^^ 
 to time as vacancies occur. omce of 
 
 (2.) The}- shall be appointed on the recommendation of the Commis- 
 President of the Board of Trade, and one of them shall be of sioners. 
 experience in railway business. 
 
 (3.) Section five of the Regidation of Railways Act, 1873, shall 
 apply to each appointed Commissioner («). 
 
 (4.) There shall be paid to each appointed Commissioner siu-h 
 salary not exceeding three thousand pounds a year as the President 
 of the Board of Trade may, with the concurrence of the Treasury, 
 determine. 
 
 («) Ante, p. .521.
 
 528 
 
 Sect. 3. 
 
 Appointment 
 and attend- 
 ance of ex 
 officio Com- 
 missioners. 
 
 Sittings of 
 Commis- 
 sioners. 
 
 36 & 37 Vict. 
 c. 48. 
 
 APPENDIX. 
 
 (5.) It sliall be lawful for tlie Lord Chancellor, if lie think fit, to 
 remove for inability or misbehaviour any appointed Commissioner. 
 
 4, — (1.) Of the three ex otRcio Commissioners of the Eailway and 
 Canal Commission one shall be nominated for England, one for 
 Scotland, and one for Ireland ; and an ex officio Commissioner 
 shall not be required to attend out of the part of the United 
 Kingdom for -svhich he is nominated. 
 
 (2.) The ex officio Commissioner in each case shall be such judge 
 of a superior court as — 
 
 (a.) in England the Lord Chancellor ; and 
 
 (b.) in Scotland the Lord President of the Court of Session; and 
 
 (c.) in Ireland the Lord Chancellor of Ireland; 
 may from time to time by writing under his hand assign, and such 
 assignment shaU be made for a period of not less than five years. 
 
 (3.) Eor the purpose of the attendance of the ex officio Com- 
 missioners, regulations shall be made from time to time by the 
 Lord Chancellor, the Lord President of the Court of Session, 
 and the Lord Chancellor of Ireland respectively, in communica- 
 tion with the ex officio Commissioners for England, Scotland,^ or 
 Ireland, as the case may be, as to the arrangements for securing 
 their attendance, as to the times and place of sitting in each case, 
 and otherwise for the convenient and speedy hearing thereof. 
 
 5._(1.) Subject to the provisions of this Act, and to general rules 
 under this Act, the Commissioners may hold sittings in any part of 
 the United Kingdom, in such jilace or places as may be most con- 
 venient for the determination of proceedings before them. 
 
 (2.) The central office of the Commissioners shall be in London, 
 and the Commissioners when holding a public sitting in London 
 shall hold the same at the Eoyal Courts of Justice, or at such other 
 place as the Lord Chancellor may from time to time appoint. 
 
 (3.) Not less than three Commissioners shall attend at the hearing 
 of any case, and the ex officio Commissioner shall preside, and his 
 opinion upon any question which in the opinion of the Commis- 
 sioners is a question of law shall prevail. 
 
 (4.) Save as aforesaid, section twenty-seven of the Eegulation of 
 Eailways Act, 1873, shall apply, and any act may be done by any 
 two Commissioners {b). 
 
 (5.) Every judge who may with his consent be assigned to hold 
 the office of ex officio Commissioner shall attend to hear any cases 
 before the Commission, which as ex officio Commissioner he is 
 required to hear, when and as soon as the cases are ready to be 
 heard, or as soon thereafter as reasonably may be ; and any such 
 judge shall be required to perform any of the other duties of^ a 
 judge of a superior court only when his attendance on the Commis- 
 sion is not required. 
 
 (6.) If and when any judge who may be assigned to hold the 
 
 (i) Ante, p. 526.
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 529 
 
 Sect. 5. 
 
 office of ex officio Commissioner is temporarily unable to attend, the 
 
 Lord Chancellor in England, the Lord President of the Court of 
 
 Session in Scotland, and the Lord Chancellor in Ireland, may 
 respectively nominate any judge of a superior coiu-t to sit as ex 
 officio Commissioner in place of the judge who is so temporarily 
 unable to attend as aforesaid, and the judge so nominated shall 
 for the purpose of any case which he may hear be an ex officio 
 Commissioner. 
 
 (7.) If the President of the Board of Trade is satisfied eitlier of 
 the inability of an appointed Commissioner to attend at the hearing 
 of any case, or of there being a vacancy in the office, and in either 
 case of the necessity of a speedy hearing of the case, he may 
 appoint a temporary Commissioner to bear such case, and such 
 Commissioner, for all purposes connected with such case, shall, 
 until the final determination thereof, have the same jurisdiction 
 and powers as if he were an appointed Commissioner. A temporary 
 Commissioner shall be paid such sum by the Commissioner so 
 unable to sit, or, if the office is vacant, out of the salary of the 
 office, as the President of the Board of Trade may assign. 
 
 6. On an address from both Houses of Parliament representing Appointment 
 that, regard being had to the duties imposed b}^ this Act on the ex ?^ additional 
 officio Commissioners, the state of business of the High Court in •'^ ^°" 
 England requires the appointment of an additional judge of that 
 court, it shall be lawful for Her Majesty to appoint an additional 
 judge of such court, and from time to time, on a like address but not 
 otherwise, to fill any vacancy in such judgeship, and the law relat- 
 ing to tbe ajipointment and qualification of the judges of such 
 superior court, to their duties and tenure of office, to their prece- 
 dence, salary and pension, and otherwise, shall apply to any judge 
 so appointed under this section, and a judge so appointed under 
 this section shall be attached to such division or branch of the court 
 as Her Majesty may direct, subject to such power of transfer as 
 may exist in the case of any other judge of such division or branch. 
 
 7. — (1.) Any of the following authorities, that is to say — Provision for 
 
 (a) any of the following local authorities, namely, any harbour complaints by 
 board, or conservancy authority, the Common Council of the public 
 
 City of London, any council of a city or borough, any represen- authority in 
 
 tative county body which may be created by an Act passed in certain cases. 
 
 the present or any future session of Parliament, any justices in 
 
 quarter sessions assembled, the Commissioners of Supply of 
 
 any county in Scotland, the Metropolitan Board of Works, or 
 
 any urban sanitary authority, not being a council as aforesaid, 
 
 or any rural sanitary authority ; or 
 
 (b) any such association of traders or freighters, or cjiamber of 
 commerce or agriculture as may obtain a certificate from tbe 
 Board of Trade that it is, in the opinion of the Board of Trade, 
 a proper body to make such complaint, 
 
 may make to the Commissioners any complaint which the Commis- 
 
 M. M j\I
 
 530 
 
 APPENDIX. 
 
 Sect. 7. 
 
 Jiirisdiction 
 of Railway 
 Commis- 
 sioners 
 transferred 
 to the Com- 
 mission. 
 
 Jurisdiction 
 of Commis- 
 sioners under 
 special Acts. 
 17 & 18 Vict. 
 0. 31. 
 
 Jurisdiction 
 over tolls and 
 rates. 
 
 sioners have jurisdiction to determine, and may do so without proof 
 that such authority is aggrieved by the matter complained of, and 
 any of such authorities may appear in opposition to any complaint 
 which the Commissioners have jurisdiction to determine in any case 
 where such authority, or the persons represented by them, appear 
 to the Commissioners to be likely to be affected by any determination 
 of the Commissioners upon such complaint. 
 
 (2.) The Board of Trade may, if they think fit, require, as a con- 
 dition of giving a certificate under this section, that security be 
 given in such manner and to such amount as they think necessary, 
 for any costs which the comr)lainants may be ordered to joay or bear. 
 
 (3.) Any certificate granted under this section shall, unless 
 withdrawn, be in force for twelve months from the date on which it 
 was given. 
 
 Jurisdiction. 
 
 8. There shall be transferred to and vested in the Commissioners 
 all the jurisdiction and powers which at the commencement of this 
 Act were vested in, or capable of being exercised by the Railway 
 Commissioners, whether under the Regulation of Railways Act, 
 1873, or any other Act, or otherwise, and any reference to the 
 Railway Commissioners in the Regulation of Railways Act, 1873, 
 or in any other Act, or in any document, shall, from and after the 
 commencement of this Act, be construed to refer to the Railway 
 and Canal Commission estabHshed by this Act. 
 
 9. Where any enactment in a special Act — 
 
 (a.) contains provisions relating to traffic facilities, undue pre- 
 ference, or other matters mentioned in section two of the 
 Railway and Canal Traffic Act, 1854, or (c) 
 (b.) requires a company to which this part of this Act applies to 
 provide any station, road, or other similar work for public 
 accommodation, or (rf) 
 (c.) otherwise imposes on a company to which this part of this 
 Act applies any obligation in favour of the public or any 
 individual, 
 or where any Act contains provisions relating to private branch 
 railways or private sidings, the Commissioners shall have the like 
 jurisdiction to hear and determine a complaint of a contravention of 
 the enactment as the Commissioners have to hear and determine a 
 complaint of a contravention of section two of the Railway and 
 Canal Traffic Act, 1854, as amended by subsequent Acts {e). 
 
 10. Where an}- question or dispute arises, involving the legality 
 of any toll, rate, or charge, or portion of a toll, rate, or charge, 
 charged or sought to be charged for merchandize traffic by a 
 company fo which this part of this Act applies, the Commissioners 
 
 [c) See Ai-ticle 233, ante, p. 257. 
 
 [d) See Article 23C, ante, p. 264. 
 (c) See Article 238, ante, p. 280.
 
 THE PiAILWAY AND CANAL TRAFFIC ACT, 1888. 531- 
 
 shall have jurisdiction to hear and determine the same, and to Sect. 10. 
 
 enforce payment of such toll, rate, or charge, or so much thereof as ■ 
 
 the Commissioners decide to be legal {/). 
 
 11. Nothing in any agreement, whether made before or after the Jurisdiction 
 passing of this Act, which has not been confirmed by Act or by the *° ^F.*^?^ traffic 
 Board of Trade, or by the Commissioners under the Eegulation no*^twitlT-' 
 
 of Railways Act, 187.3, or this Act, shall render a company to which standinf^ 
 this part of this Act applies unable to afford, or shall authorise ag-reements. 
 such company to refuse, such reasonable facilities for traffic as may 
 in the opinion of the Commissioners be required in the interests of 
 the public, or shall prevent the Commissioners from making or 
 enforcing any order with respect to such facilities. 
 
 12. Where the Commissioners have jurisdiction to hear and Power 
 determine any matter, they may, in addition to or in substitution to award 
 for any other relief, award to any complaining party who is ag- damages, 
 grieved such damages as they find him to have sustained ; and such 
 award of damages shall be in complete satisfaction of any claim for 
 damages, including repayment of overcharges, which, but for this 
 
 Act, such party would have had by reason of the matter of 
 complaint {g). 
 
 Provided that such damages shall not be awarded unless com- 
 plaint has been made to the Commissioners within one year from 
 the discovery by the party aggrieved of the matter complained of. 
 
 The Commissioners may ascertain the amount of such damages 
 either by trial before themselves, or by directing an inquiry to be 
 taken before one or more of themselves or before some officer of 
 their court. 
 
 13. In cases of complaint of undue preference no damages shall No damages 
 be awarded if the Commissioners shall find that the rates com- where rates 
 plained of have, for the period during which such rates have been umieifcertain 
 in operation, been duly pu])lished in the rate books of the railway conditions, 
 company kei:»t at their stations in accordance with section fourteen 
 
 of the Kegulation of Eailways Act, 1873, as amended by this Act, 
 unless and until the party complaining shall have given written 
 notice to the railway company requiring them to abstain from or 
 remedy the matter of complaint, and the railway company shall 
 have failed, within a reasonable time, to comply witli such require- 
 ments in sucli a manner as the Commissioners shall think 
 reasonable (A). 
 
 14. The Commissioners may order two or more companies to Orders on 
 which this part of this Act applies to carry into effect an order of *^^° ""^ "^°^® 
 
 companies. 
 
 (/) See Article 222, ante, p. 2-iO. 
 {g) See Article 223, ante, p. 240. 
 [h) See Article 2G6, ante, p. 348. 
 
 M >I 2
 
 532 
 
 APPENDIX. 
 
 Sect. 14. 
 
 Amendment 
 of 36 & 37 
 Vict. c. 48, 
 s. 8, as to 
 references to 
 arbitration. 
 
 Power to 
 apportion 
 expenses 
 between 
 railway 
 company and 
 applicants 
 for works. 
 
 tlie Commissioners, and to make mutual arrangements for that 
 purpose, and may further order the companies or, in case of differ- 
 ence, any of them, to submit to the Commissioners for approval a 
 scheme for carrying into effect the order, and when the Commis- 
 sioners have finall}' approved the scheme, they may order each of 
 the companies to do all tliat is necessary on the part and within the 
 power of such company to carry into effect the scheme, and may 
 determine the proportions in which the respective companies are to 
 defray the expense of so doing, and may for the ahove purposes 
 make, if they think fit, separate orders on any one or more of such 
 companies. 
 
 Provided that nothing in this section shall authorise the Commis- 
 sioners to require two companies to do anything which they would 
 not have jurisdiction to require to he done if such two companies 
 were a single company. 
 
 15. For the purposes of section eight of the Regulation of Eail- 
 ways Act, 1873, and any other enactment relating to the reference 
 to the Railway Commission of any difference between companies 
 which under the provisions of an}' general or special Act is required 
 or authorised to be referred to arbitration, the provisions of any 
 agreement confirmed or authorised l)y any such act shall be deemed 
 to be provisions of such Act (/). 
 
 16. — (1.) Where the Board of Trade or the Commissioners, in 
 the exercise of any power given by any general or special Act, on 
 apphcation order a company to which this part of this Act applies, 
 to provide a bridge, subway, or approach, or any work of a similar 
 character, the Board of Trade or the Commissioners, as the case 
 may be, may require as a condition of making the order that an 
 agreement to pay the whole or a portion of the expenses of comply- 
 ing with the order shall be entered into by the applicants or some 
 of them, or such other persons as the Board of Trade or Commis- 
 sioners think fit, and any of the following local authorities, namely, 
 any sanitary authority, highway board, surveyor of highways 
 acting with the consent of the vestry of his parish, or any other 
 authority having power to levy rates, shall have power, if such 
 authority think fit, to enter into any such agreement as is sanctioned 
 by the Board of Trade or Commissioners for the purpose of the 
 order. 
 
 (2.) In such case any question respecting the persons by whom or 
 the proportions in which the expenses of complying with the order 
 are to be defrayed may, on the application of any party to the 
 application, or on a certificate of the Board of Trade, be determined 
 by the Commissioners. 
 
 (3.) In this section the expression " parish " shall have the same 
 meaning as the same expression has in the Acts relating to high- 
 ways ; and the expression " the consent of the vestry of his parish " 
 
 (i) Ante, p. 522. 
 
 II
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 533 
 
 shall, in any place where there is no vestry meeting, mean the sect. 16. 
 
 consent of a meeting' of inhabitants contributing to the highway 
 
 rates, provided that the same notice shall have been given of such a 
 meeting as would be required by law for the assembling of a 
 meeting in vestry. 
 
 Appeals. 
 
 17. — (1.) No appeal shall lie from the Commissioners upon a Appeals on 
 question of fact, or upon any question regarding the locus standi of certain 
 a complainant. _ _ toTu'erior 
 
 (2.) Save as otherwise provided by this Act, an appeal shall lie (.Qurt of 
 from the Commissioners to a superior court of appeal. appeal. 
 
 (3.) An appeal shall not be brought except in conformity with 
 such rules of court as may from time to time be made in relation to 
 such appeals by the authority having power to make rules of court 
 for the superior court of appeal. 
 
 (4.) On the hearing of an appeal the court of appeal may draw all 
 such inferences as are not inconsistent with the facts expressly 
 found, and are necessary for determining the question of law, and 
 shall have all such powers for that purpose as if the appeal were an 
 appeal from a judgment of a superior court, and may make any 
 order which the Commisioners could have made, and also any such 
 further or other order as may be just, and the costs of and inciden- 
 tal to an appeal shall bo in the discretion of the court of appeal, but 
 no Commissioner shall be liable to any costs by reason or in respect 
 of any appeal. 
 
 (5.) The decision of the superior court of appeal shall be final : 
 Provided that where there has been a difference of opinion between 
 any two of such superior courts of appeal, any superior court of 
 appeal in which a matter affected by such difference of opinion is 
 pending may give leave to appeal to the House of Lords, on such 
 terms as to costs as such court shall determine. 
 
 (6.) Save as provided by this Act, an order or proceeding of the 
 Commissioners shall not be questioned or reviewed, and shall not be 
 restrained or removed by prohibition, injunction, certiorari, or 
 otherwise, either at the instance of the Crown or otherwise. 
 
 Supjjlemental. 
 
 18. — (1.) For the purposes of this Act the Commissioners shall General 
 have full jurisdiction to hear and determine all matters whether of powers and 
 law or of fact, and shall as respects the attendance and examination ^^^^ "^(lers 
 of witnesses, the production and inspection of documents, the 
 enforcement of their orders, the entry on and inspection of property, 
 and other matters necessary or proper for the due exercise of tluMr 
 jurisdiction under this Act, or otherwise for carrying this Act into 
 effect, have all such powers, rights, and privileges as are vested in 
 a superior court : Provided that no person shall be punished for 
 contempt of court, except with the consent of an ex officio Com- 
 missioner.
 
 534 
 
 APPENDIX. 
 
 Sect. 18. (2.) The Commissioners may review and rescind or vary any 
 
 order made by them ; but, save as is by this Act provided, every 
 
 decision or order of the Commissioners shall be final. 
 
 Costs. 
 
 Power to 
 make rules. 
 
 Appointment 
 of officers, 
 clerks, &c. 
 
 Salaries, 
 expenses, &c. 
 
 Company 
 to which 
 Parti. 
 applies. 
 
 Revised 
 classification 
 of traffic and 
 schedule of 
 rates. 
 
 19. The costs of and incidental to every proceeding before the 
 Commissioners shall be in the discretion of the Commissioners, who 
 may order by whom and to whom the same are to be paid, and by 
 whom the same are to be taxed and allowed. 
 
 20. — (1.) The Commissioners may fi'om time to time, with the 
 approval of the Lord Chancellor and the President of the Board of 
 Trade, make, rescind, and vary general rules for their procedure 
 and practice under this Act, and generally for carrying into effect 
 this part of this Act. 
 
 (2.) All rules made under this section shall be laid before Parlia- 
 ment within three weeks after they are made, if Parliament is then 
 sitting, and if Parliament is not then sitting within three weeks 
 after the beginning of the then next session of Parliament, and 
 shall be judicially noticed, and shall have effect as if they were 
 enacted by this Act. 
 
 21. — (1.) There shall be attached to the Eailway and Canal 
 Commission such officers, clerks, and messengers as the Lord Chan- 
 cellor, with the consent of the Treasury as to number, from time to 
 time appoints. 
 
 (2.) There shall be paid to each of such officers, clerks, and 
 messengers, such salaries as the Treasury from time to time 
 determine. 
 
 22. The salaries of the appointed Commissioners, and of all 
 ofiicers, clerks, and messengers attached to the Eailway and Canal 
 Commission, and all the expenses of the said Commission of and 
 incidental to the carrying out of this Act, shall be paid out of moneys 
 to be provided by Parliament. 
 
 23. This part of this Act shall apply to any railway company and 
 to any canal company, and to any railway and canal company. 
 
 Paet II. — Teaitic. 
 
 24. — (1.) Notwithstanding any provision in any general or 
 special act, every railway company shall submit to the Board of 
 Trade a revised classification of merchandise trafiic, and a revised 
 schedule of maximum rates and charges applicable thereto, pro- 
 posed to be charged by such railway company, and shall fully state 
 in such classification and schedule the natiu-e and amounts of all 
 terminal charges proposed to be authorised in respect of each class 
 of traffic, and the circumstances under which such terminal charges 
 are proposed to be made. In the determination of the terminal
 
 THE EAILWAY AND CANAL TRAFFIC ACT, 1888. 535 
 
 ctarges of any railway comi^any regard shall be Lad only to the Sect. 24. 
 
 expenditure reasonably necessary to provide the accommodation in '■ 
 
 respect of which such charges are made, irrespective of the outlay 
 which may have been actually incurred by the railway company in 
 providing that accommodation. 
 
 (2.) The classification and schedule shall be submitted within six 
 months from the passing of this Act, or such further time as the 
 Board of Trade may, in any particular case, permit, and shall be 
 published in such manner as the Board of Trade may direct {k). 
 
 (3.) The Board of Trade shall consider the classification and 
 schedule, and any objections thereto, which may be lodged with 
 them on or before the prescribed time and in the prescribed man- 
 ner, and shall communicate with the railway company and the 
 persons (if any) who have lodged objections, for the purpose of 
 arranging the differences which may have arisen. 
 
 (4.) If, after hearing all parties whom the Board of Trade 
 consider to be entitled to be heard before them respecting the 
 classification and schedule, the Board of Trade come to an agree- 
 ment with the railway company as to the classification and schedule, 
 they _ shall embody the agreed classification and schedule in a 
 Provisional Order, and shall make a report thereon, to be submitted 
 to Parliament, containing such observations as they think fit in 
 relation to the agreed classification and schedule. 
 
 (5.) When any agreed classification and schedule have been 
 embodied in a Provisional Order, the Board of Trade, as soon as 
 they conveniently can after the making of the Provisional Order (of 
 which the railway company shall be deemed to be the promoters), 
 shall procure a Bill to be introduced into either House of Parliament 
 for an Act to confirm the Provisional Order, which shall be set out 
 at length in the schedule to the Bill. 
 
 _ (6.) In any case in which a railway company fails within the 
 time mentioned in this section to submit a classification and schedule 
 to the Board of Trade, and also in every case in which a railwa}^ 
 company has submitted to the Board of Trade a classification and 
 schedule, and after hearing all parties whom the Board of Trade 
 consider to be entitled to be heard before them, the Board of Trade 
 are unable to come to an agreement with the railway company as 
 to the railway company's classification and schedule, the Board 
 of Trade shall determine the classification of tralRc which, in the 
 opinion of the Board of Trade, ought to be adopted by the railway 
 company, and the schedule of maximum rates and charges, includ- 
 ing all terminal charges proposed to be authorised applicable to 
 such classification which would, in the opinion of the Board of 
 Trade, be just and reasonable, and shall make a report, to be sub- 
 mitted to Parliament, containing such observations as they may 
 think fit in relation to the said classification and schedule, and 
 calling attention to the points therein on which differences which 
 have arisen have not been arranged. 
 
 o 
 
 {k) See post, sect. 35. 
 
 b
 
 636 
 
 APPENDIX. 
 
 Sect 24 {"'■) After tlie commencement of tlie session of Parliament next 
 
 '■ — '■ — after that in which the said report of the Board of Trade has been 
 
 submitted to Parliament, the railway company may apply to the 
 Board of Trade to submit to Parliament the question of the classifi- 
 cation and schedule which ought to be adopted by the railway 
 company, and the Board of Trade shall on such application, and in 
 any case may, embody in a Provisional Order such classification 
 and schedule as in the opinion of the Board of Trade ought to be 
 adopted by the railway company, and procure a Bill to be intro- 
 duced into either House of Parliament for an Act to confirm the 
 Provisional Order, which shall be set out at length in the schedule 
 to the Bill. 
 
 (8.) If, while any Bill to confirm a Provisional Order made by 
 the Board of Trade under this section is pending in either House of 
 Parliament, a petition is presented against the Bill or any classifica- 
 tion and schedule comprised therein, the Bill, so far as it relates to 
 the matter petitioned against, shall be referred to a Select Commit- 
 tee, or if the two Houses of Parliament think fit so to order, to a 
 joint Committee of such Houses, and the petitioner shall be allowed 
 to appear and oppose as in the case of a private Bill. 
 
 (9.) In preparing, revising, and settling the classifications and 
 schedules of rates and charges, the Board of Trade may consult and 
 employ such skilled persons as they may deem necessary or desir- 
 able ; and they may pay to such persons such remuneration as they 
 may think fit and as the Treasury may approve. 
 
 (10.) The Act of Parliament confirming any Provisional Order 
 made under this section shall be a public general Act, and the rates 
 and charges mentioned in a Provisional Order as confirmed by such 
 Act shall, from and after the Act coming into operation, be the 
 rates and charges which the railway company shall be entitled to 
 charge and make. 
 
 (11.) At any time after the confirmation of any Provisional Order 
 under this section any railway company may, and any person, upon 
 giving not less than twenty-one days notice to the railway company 
 may, apply in the prescribed manner to the Board of Trade to 
 amend any classification and schedule by adding thereto any 
 articles, matters, or things, and the Board of Trade may hear and 
 determine such application, and classify and deal with the articles, 
 matters, or things referred to therein in such manner as the Board 
 of Trade shall think right. Every determination of the Board of 
 Trade under this sub-section shaU forthwith be published in the 
 "London Gazette," and shaU take effect as from the date of the 
 publication thereof. 
 
 (12.) Nothing in this section shall apply to any remuneration 
 
 payable by the Postmaster-General to any railway company for the 
 
 conveyance of mails, letter bags, or parcels under any general or 
 
 special Act relating to the conveyance of mails, or under the Post 
 
 45 & -16 Vict. Office (Parcels) Act, 1882. 
 
 c. 74. (13.) Nothing in this section shall apply to any remuneration 
 
 payable by the Secretary of State for War to any railway company
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 537 
 
 for the conveyance of War Office stores under tlie powers conferred sect. 24. 
 by the Cheai> Trains Act, 1883. 
 
 46 & 47 Vict, 
 c. 34. 
 
 25. Whereas by section two of the Railway and Canal Traffic Act, 
 1854, it is enacted that every railway company and canal company, f^^ovisions as 
 and railway and canal company shall, according to their respective traffic (^ 
 powers, afford all reasonable facilities for the receiving and forward- 
 ing 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, trucks, boats, and other vehicles ; and 
 that no such company shall make or give any undue or unreason- 
 able preference or advantage to or in favour of any particular 
 person or company, or any particular description of traffic, in any 
 respect whatsoever, or shall subject any particular person or com- 
 pany, or any particular description of traffic, to any undue or 
 unreasonable jDrejudice or disadvantage in any respect whatsoever; 
 and that every railway company and canal company and railway 
 and canal company having or working railwaj's or canals which 
 form part of a continuous line of railway, or canal or railway and 
 canal communication, or which have the terminus station or wharf 
 of the one near the terminus station or wharf of the other, shall 
 afford all due and reasonable facilities for receiving and forwarding 
 by one of such railways or canals all the traffic arriving by the 
 other, without any unreasonable delay, and without any such pre- 
 ference or advantage or prejudice or disadvantage as aforesaid, and 
 so that no obstruction may be offered to the public desirous of using 
 such railways or canals or railways and canals as a continuous line 
 of communication, and so that all reasonable accommodation may by 
 means of the railways and canals of the several companies be at all 
 times afforded to the public in that behalf : 
 
 Aud whereas it is expedient to explain and amend the said enact- 
 ment : 
 
 Be it therefore enacted, that — 
 
 Subject as herein-after mentioned, the said facilities to be so 
 afforded are hereby declared to and shall include the due and 
 reasonable receiving, forwarding, and delivering by every 
 railway company and canal company and railway and canal 
 company, at the request of any other such company, of through 
 traffic to and from the railway or canal of any other such com- 
 pany at through rates, tolls, or fares (in this Act referred to as 
 through rates) ; and also the due and reasonable receiving, 
 forwarding, and delivering by every railway company and 
 canal company and railway and canal company, at the request 
 of any person interested in through traffic, of such traffic at 
 through rates : Provided that no application sliall be made to 
 the Commissioners by such person until he has made a com- 
 plaint to the Board of Trade under the provisions of this Act as 
 to complaints to the Board of Trade of unreasonable charges {m), 
 
 {I) See Article 253, ante, p. 312. {m) Fosi, sect. 31, p. 541.
 
 638 APPENDIX. 
 
 Sect. 25. and the Board of Trade Lave heard the complaint in the manner 
 herein provided. 
 
 Provided as follows : 
 
 (1.) The company or person requiring the traffic to be forwarded 
 shall give written notice of the proposed throvigh rate to 
 each forwarding company, stating hoth its amount and the 
 route by which the traffic is proposed to be forwarded ; and 
 when a company gives such notice it shall also state the 
 apportionment of the through rate. The proposed through 
 rate may be per truck or per ton : 
 
 (2.) Each forwarding company shall, within ten days, or such 
 longer period as the Commissioners may from time to time 
 by general order prescribe, after the receipt of such notice, 
 by written notice inform the company or persons recj[uiring 
 the traffic to be forwarded, whether they agree to the rate 
 and route ; and if they object to either, the grounds of the 
 objection : 
 
 (3.) If at the expiration of the prescribed period no such objection 
 has been sent by any forwarding company, the rate shall 
 come into operation on such expiration : 
 
 (4.) If an objection to the rate or route has been sent within the 
 prescribed period, the matter shall be referred to the 
 Commissioners for their decision : 
 
 (5.) If an objection be made to the granting of the rate or to the 
 route, the Commissioners shall consider whether the grant- 
 ing of a rate is a due and reasonable facility in the interest 
 of the public, and whether, having regard to the circum- 
 stances, the route proposed is a reasonable route, and shall 
 allow or refuse the rate accordingly, or fix such other rate 
 as may seem to the Commissioners just and reasonable : 
 
 (6.) Where, upon the application of a person requiring traffic to 
 be forwarded, a through rate is agreed to by the forward- 
 ing companies, or is made by order of the Commissioners, 
 the apportionment of such through rate, if not agreed upon 
 between the forwarding companies, shall be determined 
 by the Commissioners : 
 
 (7.) If the objection be only to the apportionment of the rate, the 
 rate shall come into operation at the expiration of the 
 prescribed period, but the decision of the Commissioners, 
 as to its apportionment, shall be retrospective ; in any 
 other case the operation of the rate shall be suspended 
 until the decision is given : 
 
 (8.) The Commissioners, in apportioning the through rate, shall 
 take into consideration all the circumstances of the case, 
 including any special expense incurred in respect of the 
 construction, maintenance, or working of the route, or any 
 part of the route, as well as any special charges which any 
 company may have been entitled to make in respect 
 thereof : 
 
 (9.) It shall not be lawful for the Commissioners in any case to
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 539 
 
 compel any company to accept lower mileage rates than Sect. 25. 
 
 tlie mileage rates which, such company may for the time 
 
 being legally be charging for like traffic carried by a like 
 mode of transit on any other line of communication between 
 the same points, being the points of departure and arrival 
 of the through route. 
 Where a railway company or canal company use, maintain, or 
 work, or are l^arty to an arrangement for using, maintaining, or 
 working steam vessels for the purpose of carrying on a communica- 
 tion between any towns or ports, the jirovisions of this section shall 
 extend to such steam vessels, and to the traffic carried thereb}'. 
 
 When any company, vipon written notice being given as aforesaid, 
 refuses or neglects without reason to agree to the proposed through 
 rates, or to the route, or to the apportionment, the Commissioners, 
 if an order is made by them upon an application for through rates, 
 may order the respondent compau}' or companies to pay such costs 
 to the applicants as they think fit. 
 
 23. Subject to the provisions in the last preceding section con- Po-n-ers of 
 tained, the Commissioners shall have full power to decide that any Commis- 
 proposed through rate is just and reasonable, notwithstanding that sioners as to 
 a less amount may be allotted to any forwarding company out of t'^ouo*! rates, 
 such through rate than the maximum rate such company is entitled 
 to charge, and to allow and apportion such through rate accord- 
 ingly. 
 
 27. — (1.) Whenever it is shown that any railway company charge Undue 
 one trader or class of traders, or the traders in any district, lower preference 
 tolls, rates, or charges for the same or similar merchandise, or lower "^ case of 
 tolls, rates, or charges for the same or similar services, than they r^4y"ancl° ^' 
 charge to other traders, or classes of traders, or to the traders in cliaro-es, and 
 another district, or make any difference in treatment in respect of unequal 
 any such trader or traders, the burden of proving that such lower services 
 charge or difference in treatment does not amount to an undue Performed, 
 preference shall lie on the railway compan}'. 
 
 (2.) In deciding whether a lower charge or difference in treat- 
 ment docs or does not amount to an undue j)reference, the Court 
 having jurisdiction in the matter, or the Commissioners, as the case 
 may be, may, so far as they think reasonable, in addition to any 
 other considerations affecting the case, take into consideration 
 whether such lower charge or difference in treatment is necessary 
 for the purpose of securing in the interests of the public the traffic 
 in respect of which it is made, and whether the inequality cannot 
 bo removed without unduly reducing the rates charged to the com- 
 plainant : Provided that no railway company shall make, nor shall 
 the Court, or the Commissioners, sanction any difference in the 
 tolls, rates, or charges made for, or any difference in the treatment 
 of, home and foreign merchandise, in respect of the same or similar 
 services.
 
 540 
 
 APFENDTX. 
 
 Extension of 
 enactments 
 as to undue 
 preference to 
 goods carried 
 by sea. 
 
 Group rates 
 to be charge- 
 able by rail- 
 way com- 
 panies. 
 
 Sect 27. (3.) Tlie Court or tlio Commissioners shall have power to direct 
 
 '■ — '- — that no higher charge shall be made to any person for services in 
 
 respect of merchandise carried over a less distance than is made to 
 any other persons for similar services in respect of the like de- 
 scription and quantity of merchandise carried over a greater dis- 
 tance on the same line of railway {n). 
 
 28. The provisions of section two of the Eailway and Canal Traffic 
 Act, 1854, and of section fourteen of the Eegulation of Eailways 
 Act, 1873, and of any enactments amending and extending those 
 enactments, shall apply to traffic by sea in any vessels belonging 
 to or chartered or worked by any railway company, or in which 
 any railway company procures merchandise to be carried, in the 
 same manner and to the like extent as they apply to the land traffic 
 of a railway company. 
 
 29._(l.) Notwithstanding any provision in any general or special 
 Act, it shall be lawful for any railway company, for the pui'pose of 
 fixing the rates to be charged for the carriage of merchandise to 
 and from any place on their railway, to group together any number 
 of places in the same district, situated at various distances from 
 any point of destination or departure of merchandise, and to charge 
 a uniform rate or imiform rates of carriage for merchandise to and 
 from all j)laces comprised in the group from and to any point of 
 destination or departure. 
 
 (2.) Provided that the distances shall not be unreasonable, and 
 that the group rates charged and the places grouped together shall 
 not be such as to create an undue preference. 
 
 (3.) AVhere any group rate exists or is proposed, and in any case 
 where there is a' doubt whether any rates charged or proposed to 
 be charged by a railway company may not be a contravention of 
 section two of the Eailway and Canal Traffic Act, 1854, and any 
 Acts amending the same, the railway company may, upon giving 
 notice in the prescribed manner, apply to the Commissioners, and 
 the Commissioners may, after hearing the parties interested and 
 any of the authorities mentioned in section seven of this Act, de- 
 termine whether such group rate or any rate charged or proposed 
 to be charged as aforesaid does or does not create an undue pre- 
 ference. Any persons aggrieved, and any of the authorities men- 
 tioned in section seven of this Act, may, at any time after the 
 making of any order under this section, apply to the Commissioners 
 to vary or rescind the order, and the Commissioners, after hearing 
 all parties who are interested, may make an order accordingly (o). 
 
 Power to 30. Any port or harbour authority or dock company which shall 
 
 dock com- have reason to believe that any railway company is by its rates or 
 
 («) See Ai-ticle 260, ante, p. 339. 
 (o) See Article 264, ante, p. 345. 
 
 II
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 
 
 541 
 
 otherwise placing their port, harbour, or dock, at an undue disad- 
 vantage as compared with any other port, harlDour, or dock to or 
 from which trattic is or may be carried by means of the lines of the 
 said railway company', either alone or in conjunction with those of 
 other railway' companies, may make complaint tliereof to the Com- 
 missioners, who shall have the like jiu-isdiction to hear and deter- 
 mine the subject-matter of such complaint as they have to hear 
 and determine a complaint of a contravention of section two of the 
 Eailway and Canal Traffic Act, 1854, as amended by subsequent 
 Acts. 
 
 Sect. 30. 
 
 parties and 
 harbour 
 boards to 
 complain 
 of undue 
 preference. 
 
 31. — (1.) Whenever any person receiving or sending or desiring Complaints 
 to send goods by any railway is of opinion that the railway company to Board of 
 is charging him an unfair or an unreasonable rate of charge, or is in Trade of un- 
 any other respect treating him in an oppressive or unreasonable g^^tl*^^ -^ 
 manner, such person may complain to the Board of Trade. railway 
 
 (2.) The Board of Trade, if they think that there is reasonable companies, 
 ground for the complaint, may thereupon call upon the railway 
 company for an explanation, and endeavour to settle amicably the 
 differences between the complainant and the railway company. 
 
 (3.) For the purpose aforesaid, the Board of Trade may appoint 
 either one of their own officers or any other competent person to 
 communicate with the comjdainant and the railway company, and 
 to receive and consider such explanations and communications as 
 may be made in reference to the complaint ; and the Board of Trade 
 may pay to such last-mentioned person such remuneration as they 
 may think fit, and as may be approved by the Treasury. 
 
 (4.) The Board of Trade shall from time to time submit to 
 Parliament reports of the complaints made to them under the 
 provisions of this section, and the results of the proceedings taken 
 in relation to such complaints, together with such observations 
 thereon as the Board of Trade shall think fit. 
 
 (5.) A complaint under this section may be made to the Board 
 of Trade by any of the authorities mentioned in section seven of 
 this Act, in any case in which, in the opinion of any of such autho- 
 rities, they or any traders or persons in their district are being 
 charged unfair or unreasonable rates by a railway company ; and 
 all the provisions of this section shall apply to a complaint so made 
 as if the same had been made by a person entitled to make a 
 complaint under this section. 
 
 32. — (1.) The returns required of a railway company under 
 section nine of the Railways Regulation Act, 1871, shall include 
 such statements as the Board of Trade may from time to time pre- 
 scribe, and the forms referred to in that section may from time to 
 time be altered by the Board of Trade in such manner as they 
 think expedient for giving effect to this section, and the said 
 section nine of the Railways Regulation Act, 1871, shall apply 
 accordingly. 
 
 (2.) The Board of Trade may from time to time alter the times 
 
 Anniial 
 returns by 
 railway com- 
 panies to 
 contain such 
 statistics as 
 the Board of 
 Trade shall 
 rcquii'o. 
 34 & 35 Vict. 
 c. 78, s. 9.
 
 542 APPENDIX. 
 
 Sect. 32. fixed Ly the said Act or by the Railways Regulation Act (Returns 
 36 & 37 Vict. 
 
 of Signal Arrangements, AVorkings, &c.), 1873, for the forwarding 
 
 c. 
 
 -g 'of any of the returns required by the said Act or this Act. 
 
 Classification 33. — (1.) The book, tables, or other document in use for the 
 
 table to be time being containing the general classification of merchandise 
 
 open for carried on the railway of any company, shall, during all reasonable 
 
 „ . ■ hours, be open to the inspection of any person without the payment 
 
 soid^^ ° ^ ^^ ^^y ^^^ ^^ every station at which merchandise is received for 
 
 conveyance, or where merchandise is received at some other place 
 
 than a station then at the station nearest such place, and the said 
 
 book, tables, or other document as revised from time to time shall 
 
 be kept on sale at the principal office of the company at a price not 
 
 exceeding one shilling. 
 
 (2.) Printed copies of the classification of merchandise traffic, 
 and schedule of maximum tolls, rates, and charges of every railway 
 company authorised, as provided by this Act, shall be kept for sale 
 by the railway company at such places and at such reasonable 
 price as the Board of Trade may by any general or special order 
 prescribe. 
 
 (3.) The company shall within one week after application in 
 •writing made to the secretary of any railway company by any 
 person interested in the carriage of any merchandise which has 
 been or is intended to be carried over the railway of such company, 
 render an account to the person so applying in which the charge 
 made or claimed by the company for the carriage of such merchan- 
 dise shall be divided, and the charge for conveyance over the rail- 
 way shall be distinguished from the terminal charges (if any}, and 
 from the dock charges (if any), and if any terminal charge or dock 
 charge is included in such account the natui-e and detail of the 
 terminal expenses or dock charges in respect of which it is made 
 shall be specified. 
 
 (4.) Every railway company shall publish at every station at 
 whach merchandise is received for convej-ance, or where merchandise 
 is received at some other place than a station then at the station 
 nearest to such place, a notice, in such form as may be from time 
 to time prescribed by the Board of Trade, to the effect that such 
 book, tables, and document touching the classification of merchan- 
 dise and the rates as they are required b}" this section and section 
 0*^4^ ?L)?°^" fo^ii'teen of the Regulation of Railways Act, 1873, to keep at that 
 p. 523). ' station, are open to public inspection, and that information as to 
 any charge can be obtained by application to the secretary or other 
 officer at the address stated in such notice. 
 
 (5.) AVhere a railway company carries merchandize partly by 
 land and partly by sea, all the books, tables, and documents 
 touching the rates of charge of the railway company, which are 
 kept \)j the railway company at any port in the United Kingdom 
 used by the vessels which carry the sea traffic of the railway 
 company, shall, besides containing all the rates charged for the sea 
 traffic, state what proportion of any through rate is appropriated
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 543 
 
 to conveyance by sea, distlngiiisliing such proportion from tliat gect. 33. 
 
 whieh is appropriated to the conveyance by land on either side of 
 
 the sea. 
 
 (6.) Where a railway company intend to make any increase in 
 the tolls, rates, or charges published in the books required to be 
 kept by the company for public inspection, under section fourteen 
 of the Eegulation of Eailwaj's Act, 1873, or this Act, they shall 
 give by pubHcation in such manner as the Board of Trade may 
 prescribe at least fourteen days notice of such intended increase, 
 stating in such notice the date on which the altered rate or charge 
 is to take effect ; and no such increase in the published tolls, rates, 
 or charges of the railway company shall have effect unless and until 
 the fourteen days notice required under this section has been given. 
 
 (7.) Any company failing to comply with the provisions of this 
 section shall, for each offence, and in the case of a continuing 
 offence for every day during wliieh the offence continues, be liable, 
 on summary conviction, to a penalty not exceeding five pounds. 
 
 34. When traffic is received or delivered at any place on any Place of 
 railway other than a station within the meaning of section fourteen publication 
 of the Eegulation of Eailwa3^s Act, 1873, the railway company on "^^ rates in 
 whose line such place is, shall keep at the station nearest such traffic at 
 place a book or books showing every rate for the time being places other 
 charged for the carriage of traffic other tlian passengers and their than stations, 
 luggage, fi-om such place to any place to which they book, including 
 any rates charged under any special contract, and stating the 
 distance from that place of every station, wharf, siding, or place to 
 which such rate is charged. 
 
 Every such book shall, during all reasonable hours, be open to 
 the inspection of any person without the payment of a fee. 
 
 35. — (1.) The Board of Trade may from time to time make. Power to 
 rescind, and vary rules with respect to the following matters : — • °iake rules 
 
 (a) The form and manner in which classifications and schedules for purposes 
 under this part of this Act are to be prepared and submitted to ^f ^^t 
 
 the Board of Trade and to Earliament, and the publication, 
 advertisement, and settlement (by the Board of Trade) of sucli 
 classifications and schedules, and of Erovisional Orders ( p) ; 
 
 (b) All proceedings before the Board of Trade under this part of 
 this Act ; 
 
 (c) The fees to be paid in respect of such proceedings ; and 
 
 (d) Any matter authorized by this Act to be prescribed. 
 
 (2.) Any rules made by the Board of Trade in pursuance of 
 this section shall be laid before Parliament within tliree weeks after 
 they are made, if Parliament be then sitting, and if Parliament bo 
 not then sitting, within three weeks after the beginning of the tlien 
 next session of Parliament, and shall bo judicially noticed, and shall 
 have effect as if they were enacted by this Act. 
 
 {p) The Board of Trade have issued rules on the subject.
 
 544 
 
 APPENDIX. 
 
 Sect. 36. 
 
 Part II. to 
 extend to 
 canal com- 
 panies. 
 
 Application 
 of 36 & 37 
 Viet c. 48, 
 to canals. 
 
 Powers of 
 Commis- 
 sioners over 
 canal tolls, 
 rates, and 
 
 Part III. — Can.vls(§'). 
 
 36. All the provisions of Part II. of tMs Act relating to any 
 railway company sliall, so far as applicable, apply to every canal 
 company, and to every railway and canal company ; and in Part II. 
 of this Act, unless the context otherwise requires, the expression 
 "railway company " shall include a canal company and railway and 
 canal company, and the exjiression "railway" shall include a canal, 
 and the expression "rate" shall include tolls and dues of every 
 description chargeable for the use of any canal or by any canal 
 company. 
 
 37. — (1.) Section fifteen of the Regulation of Railways Act, 1873, 
 shall apply to the terminal charges of a canal company. 
 
 (2.) The Railway and Canal Traffic Act, 1854, as amended by 
 the Regulation of Railwaj-s Act, 1873, shall extend to any person 
 whose consent is rec^uired to any variation of the rates, tolls, or dues 
 charged for the use of any canal, or by any canal company, in like 
 manner as if such person were a canal company, and the expressions 
 "canal company" and "railway and canal company" in the said 
 Acts and this Act shall be construed accordingly to include such 
 person. 
 
 (3.) The provisions of the Railway and Canal Traffic Act, 1854, 
 and the Regulation of Railways Act, 1873, with respect to rates, 
 shall a2:)ply to tolls and dues of every description chargeable for the 
 use of any canal or by any canal compan5^ And nothing in any 
 agreement, whether made before or after the passing of this Act, 
 and whether confirmed by Act of Parliament or not, and nothing 
 in this Act shall prevent the Commissioners from making or 
 enforcing any order for a through rate or toll which may in their 
 opinion be required in the interest of the public. 
 
 (4.) Any company allowing traffic to pass from a canal on to any 
 other canal or any railway, or from a railway on to a canal, shall 
 be deemed to be a forwarding company, and the allowing of traffic 
 so to pass shall be deemed to be the forwarding of traffic within the 
 meaning of the above-mentioned Acts. 
 
 (5.) The provisions of the Railway and Canal Traffic Act, 1854, 
 and of the Regulation of Railways Act, 1873, and of this Act, with 
 respect to thi'ough rates, shall extend to any canals which, in con- 
 nexion with any river or other waterway, form part of a continuous 
 line of water communication, notwithstanding that tolls may not 
 be leviable by authority of Parliament upon such river or other 
 waterway. 
 
 38. Where a railway company, or the directors or officers of a 
 railway company, or any of them or any persons on their behalf, 
 have the control over, or the right to interfere in or concerning the 
 traffic conveyed, or the toUs, rates, or charges levied on the traffic 
 
 ((/) See note to Article 230, ante, p. 252.
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 54'5 
 
 of or for the conveyance of mercliandise on a canal, or any part of a sect. 38. 
 
 canal, and it is proved to the satisfaction of the Commissioners that -7^ — 
 
 the tolls, rates, or charges levied on the traffic of or for the convey- ^^^j^'jf ^^^ where 
 anee of merchandise on the canal are such as are calculated to divert company or 
 the traffic from the canal to the railway, to the detriment of the its offi-ers 
 canal or persons sending traffic over the canal or other canals own or con- 
 adjacent to it— _ traffic of a 
 (1.) The Commissioners vcLny, on the application of any person ^^^^^ 
 interested in the traffic of the canal, make an order rec|uiring 
 the tolls, rates, and charges levied on the traffic of or for the 
 conveyance of merchandise on the canal, to be altered and ad- 
 justed in such a manner that the same shall be reasonable as 
 comj)ared Tvith the rates and charges for the conveyance of 
 merchandise on the railway : 
 (2.) If within such time as may be prescribed by the order of 
 the Commissioners, the tolls, rates, and charges levied on the 
 traffic of or for the conveyance of merchandise on the canal 
 are not altered and adjusted as required by such order, the 
 Commissioners may themselves by an order make such altera- 
 tions in and adjustment of the tolls, rates, and charges levied 
 on the traffic of or for the conveyance of merchandise on the 
 canal as they shall think just and reasonable, and the tolls, 
 rates, and charges as altered and adjusted by the order of the 
 Commissioners shall bo binding on the company or persons 
 owning or having the control over the traffic of, or the tolls, 
 rates, and charges levied on the traffic of, or for the conveyance 
 of merchandise on the canal : 
 (3.) No aj^plication shall be made to the Commissioners under 
 this section until the Board of Trade have certified that the 
 applicant is a tit person to make the application, and that the 
 api^lication is a proper one to bo submitted for the adjudication 
 of the Commissioners ; and no order shall be made by the 
 Commissioners under this section unless notice of the applica- 
 tion has been served upon such company and persons, and in 
 such manner as the Board of Trade may direct : 
 (4.) The Commissioners may at any time, upon the application 
 of any company or person affected by any order made under 
 this section, and after notice to and hearing such companies 
 and persons as the Commissioners may by any general rules or 
 special order prescribe, rescind or vary any order made under 
 this section. 
 
 39.— (1.) Every canal company shall, on or before the first day of Returns by 
 January in every year, beginning on the first day of January next ^^"^^^ ^^^' 
 after the passing of this Act, send to the registrar of joint stock P'^"^^^- 
 companies a return stating the name of the company, a short de- 
 scription of their canal, the name of their principal officer, and the 
 place of their office, or, if they have more than one office, of their 
 principal office. 
 
 (2.) Every canal company shall within such time as may be pre-
 
 546 
 
 APPENDIX. 
 
 Sect. 39. 
 
 Byelaws of 
 canal com- 
 panies. 
 
 scribed by the Board of Trade, and afterwards from time to time 
 - whenever required by the Board of Trade, not being oftener than 
 once in every year, forward to the Board of Trade in such form and 
 manner as the Board may from time to time prescribe, such returns 
 as the Board of Trade may require for the purpose of showing the 
 capacity of such canal for trafiic, and the capital, revenxie, expendi- 
 ture, and profits of the canal company. 
 
 (3.) When the canal of a canal company, or any part thereof, is 
 intended to be stopped for more than two days, the company shall 
 report to the Board of Trade, stating the time during which such 
 stoppage is intended to last, and when the same is re-opened the 
 company shall so report to the Board of Trade. 
 
 (4.) A company failing to comply with this section, shall be 
 liable, on summary conviction, to a fine not exceeding five pounds 
 for every day during which their default continues, and any director, 
 manager, and ofiicer of the company who knowingly and wilfully 
 authorizes or permits the default shall be liable, on summary con- 
 viction, to the like fine. 
 
 40. — (1.) Every canal company shall, before such date as the 
 Board of Trade may prescribe, forward to the Board of Trade true 
 copies, certified in such manner as the Board of Trade direct, of 
 any byelaws or regulations of such company which are in force at 
 the commencement of this Act ; and the byelaws of any canal com- 
 2)any, copies of which are not forwarded to the Board of Trade as 
 l^rovided by this section, shall from and after the said day cease to 
 have any operation, save in so far as any penalty may have been 
 already incurred under the same. 
 
 (2.) A byelaw or regulation of any canal company hereafter to be 
 made under any power which has before or at the time of the 
 passing of this Act been, or which may hereafter be, conferred on 
 any canal company, shall not have any force or effect until two 
 months after a true copy of such byelaw or regulation, certified in 
 such manner as the Board of Trade direct, has been forwarded to 
 the Board of Trade, unless the Board of Trade before the expiration 
 of such period have signified their approbation thereof. 
 
 (3.) The Board of Trade may, at any time after any existing or 
 future byelaws or regulations of a canal company have been 
 forwarded to them, notify to the company their disallowance 
 thereof, or of any of them, and in case such byelaws or regulations 
 are in force at the time of the disallowance, the time at which the 
 said byelaws or regulations shall cease to be in force. A byelaw or 
 regulation disallowed by the Board of Trade shall not after such 
 disallowance have any force or effect whatever, save (as regards any 
 byelaw or regulation which may be in force at the time of the 
 disallowance thereof) in so far as any penalty may have been then 
 already incurred under the same. 
 
 (4.) The Board of Trade may from time to time make, rescind, 
 and vary such regulations as they think fit with respect to the 
 publication by canal companies of their byelaws and regulations,
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 547 
 
 and with respect to the publication by canal companies of their sect. 40. 
 
 intention to apply to the Board of Trade for the allowance of any '■ — ^— 
 
 intended byelaws and regulations. Any regulations so made which 
 are for the time being in force, shall have effect as if they had been 
 enacted in this Act. 
 
 41. Whenever the Board of Trade are, through their officers or Inspection 
 otherwise, informed that the works of any canal are in such a con- of canals, 
 dition as to be dangerous to the public, or to cause serious inconve- 
 nience or hindrance to traffic, the Board of Trade may direct such 
 officer or other person as they appoint for the purpose to inspect the 
 said canal and report thereon to the Board of Trade, and for the 
 purpose of making any inspection under this section the officer or 
 person appointed for the purpose shall, in relation to the canal or 
 works to be inspected, have all the powers of an inspector appointed 
 under the Eegulation of Eailways Act, 1871. 34 & 35 Vict. 
 
 0. 78. 
 
 42. — (1.) No railway company, or director, or officer of a railway Misapplica- 
 company shall, without express statutorj' authoritj^, apply or use or tion of a 
 authorise or permit the appHcation or use of any part of the com- ^''^il^ay 
 pany's funds for the purpose of acquiring either in the name of the f^fj^flf''^ 
 railway company, or of any director or officer of the railway a^uisition of 
 company, or other person, any canal interest, or of enabhng any unauthorized 
 director or officer of the railway company, or other person, to i^^terest in 
 purchase or acquire any canal interest, or of guaranteeing or repay- '^■'^^■^^• 
 ing to any director or officer of the railway company or other person 
 who has purchased or acquired any canal interest the sums of 
 money expended or liability incurred by such director, officer, or 
 person, in the pui-chase or acquisition of such canal interest, or any 
 part of such money or liability. 
 
 (2.) In the event of any contravention of the provisions of this 
 section, the canal interest purchased in such contravention shall bo 
 forfeited to the Crown, and the directors or officers of the company 
 who so applied or used, or authorised or permitted such application 
 or use of the company's funds, shall bo liable to repay to the 
 company the sums so applied or used and the value of the canal 
 interest so forfeited ; and proceedings to compel such repayment 
 may be taken by any shareholder in the company. 
 
 (3.) In this section the expression "company's funds" means 
 the corjiorate funds of any railway company, and includes any 
 funds which are under the control of or administered by a railway 
 company ; the expression " officer " includes any person having any 
 control over a company's funds or any part tliereof ; and the expres- 
 sion "canal interest" means shares in the capital of a canal 
 company, and includes any interest of any kind in a canal company 
 or canal. 
 
 43. — (1.) Any canal company may make and enter into contracts panies may 
 and arrangements with any other canal company or canal com- agree for 
 panies for the passage over and along their respective canals, or through tolls, 
 
 X X 2 '^'°-
 
 rAS 
 
 APPENDIX. 
 
 Sect. 43. ^^y of them, of boats, barges, vessels, and otber tlirough. traffic, 
 
 and for the use, by such traffic, of the wharves, landing places, and 
 
 other works of an}- such canal, upon payment of such through 
 tolls, rates, and charges, and subject to such conditions and restric- 
 tions as may be agreed uj)on between such companies ; and for the 
 collection and recover}^ by any one of the companies on behalf of 
 themselves and the other comjianies interested of the tolls, rates, 
 and charges payable in respect of such through traffic ; and for the 
 division and apportionment of the tolls, rates, and charges ; and any 
 such contract may contain provisions for the erection and mainte- 
 nance of or otherwise for providing warehouses, offices, and other 
 buildings and conveniences, and any other provisions for the pur- 
 pose of carrj'iug into effect any such arrangement, and any company 
 may apply their funds or moneys for the same purpose. 
 
 (2.) Notwithstanding any enactments providing for the charge 
 of equal tolls, rates, and charges, such through tolls, rates, and 
 charges as above mentioned may respectively be computed at a 
 lower toll or rate per mile than the tolls, rates, or charges charged 
 for the passage over and along the same canals of like traffic, not 
 being through traffic, without necessitating or occasioning any 
 reduction of the last-mentioned tolls, rates, or charges. 
 
 (3.) Any like contracts and arrangements existing at the passing 
 of this Act shall be, and from the respective dates of the making 
 thereof shall be deemed to have been, as valid as if the same had 
 been made after the commencement of this Act. 
 
 clearin 
 system 
 
 Canal ^^- -^*^^' ^^® purpose of facilitating through traffic upon canals, any 
 
 companies canal companies upon whose canals through tolls, rates, or charges 
 may establish may be in operation, may establish a canal clearing system, on such 
 principles, in siich manner, and subject to such regulations as to 
 the admission of other companies to such system, the retirement 
 of members, the appointment of a committee to conduct the business 
 of the system, and of a secretary' or other necessary officers, the 
 mode of conducting business, and such other regulations for carry- 
 ing into effect such system as may from time to time be approved 
 hj the Board of Trade in writing under the hand of the secretary 
 or one of the assistant secretaries of that Board ; and any company 
 may apply any funds or money belonging to them, for the purpose 
 of establishing or carrying into effect any such system, and the 
 provisions of sections eleven to twenty-six inclusive of the Eailway 
 Clearing Act, 1850, shall, mutatis mutandis, apply to an}- canal 
 clearing system when so established. 
 
 13 &U Vict. 
 
 Abandonment 
 of canal. 
 
 45. — (1.) Where, on the apijlication of a canal company, it 
 appears to the Board of Trade tliat any canal or part of a canal 
 belonging to the applicants (hereinafter referred to as an unneces- 
 sary canal) is at the time of making the ap^jlication unnecessary 
 for the purposes of public navigation, or where, on the application 
 of any local authorit}", or of three or more owners of lands adjoin- 
 ing or near to any canal or part of a canal, it appears to the Board
 
 THE BAILWAY AND CANAL TRAFFIC ACT, 1SS8. 549 
 
 of Trade that tliat oanal or part of a canal (lioroinaftor referred to Sect. 45. 
 
 as a derelict canal) has for at least three years previously to the 
 
 making of the application been disused for navigation, or, hy reason 
 of the default of the proprietors thereof, has become unfit for 
 navigation, or that the lands adjoining or near thereto have suffered 
 injury hy water that has escaped from the derelict canal, and that 
 the proprietors of the derelict canal decline or are unable to effect 
 the repairs necessary to prevent further injury, the Board of Trade 
 may by warrant signed by their secretary authorise the abandon- 
 ment by the existing proprietors of such unnecessary canal or such 
 derelict canal, and after the granting of the warrant, and the due 
 publication as required by the Board of Trade of a notice of the 
 granting thereof, the Board of Trade may make an order releasing 
 the canal company or other the proprietors of the unnecessary or 
 derelict canal from all liability to maintain the same canal, and 
 from all statutory and other obligations in respect thereof, or of or 
 consequent on the abandonment thereof. 
 
 (2.) In the case of an unnecessary canal no warrant (jf abandon- 
 ment shall be granted unless the Board of Trade are satisfied — 
 
 (a) That it is unnecessary for the purposes of public navigation ; 
 
 (b) That the application has been expressly authorised by a 
 resolution of a majority of the shareholders of the canal com- 
 pany owning the canal present and voting at an extraordinary 
 or special general meeting of that company ; 
 
 (c) That sucli public and other notices of the application have 
 been given as the Board of Trade may require ; 
 
 (d) That compensation (the amount thereof to be determined in 
 case of difference as the Board of Trade may pi-escribe) has 
 been made to all persons entitled to compensation by reason of 
 the proposed abandonment of the canal. 
 
 (3.) In the case of a derelict canal the warrant may be granted 
 on the condition that the canal or any part thereof, with all or any 
 of the powers relating thereto, be transferred to any person, body 
 of persons, or local authority, and where any such condition is im- 
 posed the Board of Trade may, if they think fit, frame and embody 
 in a Provisional Order a scheme for the management of the canal 
 or any part thereof. 
 
 (4.) The Provisional Order may provide for the constitution of a 
 body to manage the canal or any part thereof, for the transfer to 
 that body or any local authority of the canal or any part thereof, 
 and of all or any of the powers relating thereto, for the limitation or 
 discharge of any liabilities affecting the canal or the owners thereof 
 for the time being, and for any other matters which may appear to 
 the Board of Tnido to be necessar}^ or proper for carrying this section 
 into effect. 
 
 (5.) The Board of Trade may submit to Parliament for confirma- 
 tion any Provisional Order made by it in pursuance of this section, 
 but any such order shall be of no force unless and until it is con- 
 firmed by Act of Parliament. 
 
 (6.) If while the bill confirming any such order is pending in
 
 650 
 
 APPENDIX. 
 
 Sect. 45. 
 
 Definition 
 of "canal 
 company." 
 
 either House of Parliament, a petition is presented against any order 
 comprised therein, the bill, so far as it relates to the order, may be 
 referred to a select committee, and the petitioner shall be allowed 
 to appear and oppose as in the case of private bills. 
 
 (7.) In this section the expression "local authority" means any 
 one of the local authorities mentioned in section seven of this Act. 
 
 (8.) For the purpose of giving effect to the provisions of this 
 section, the Board of Trade may require the applicants to furnish 
 any evidence in their possession or under their control relative to 
 the ajDplication, and may at the expense of the apphcants appoint 
 and send an officer to inspect the canal referred to in the applica- 
 tion, and to obtain information and evidence in the neighbourhood 
 thereof relative to the proposed abandonment, and may from time 
 to time make regulations as to the mode of making applications, and 
 the nature and mode of publication of notices, and generally as to 
 the conduct of proceedings. 
 
 46. In this imrt of this Act the expression "canal company" 
 shall include a "railway and canal company," so far as relating to 
 any canal of any such last-mentioned company. 
 
 Perpetuation 
 of 36 & 37 
 Vict. c. 48. 
 
 E^'idence 
 on rating 
 appeals. 
 
 Pakt IV. — Miscellaneous. 
 
 47. So much of the Eegulation of Eailways Act, 1873, as limits 
 the time during which that Act shall continue in force shall, save so 
 far as it relates to the appointment of the Commission, be repealed, 
 and the said Act, save as aforesaid, shall be perpetual. 
 
 48. On any rating appeal, and before any Coiu't, where it may 
 be material to show the receipts or profits of a railway company or 
 canal company, or railway and canal company, it shall be lawful 
 for the company to prove the same by written statements or returns 
 verified by the affidavit or statutory declaration of the manager or 
 other responsible officer, and any such statements or returns shall 
 be prima facie evidence of the facts therein stated with respect to 
 such receipts or profits : Provided that the person by whom any 
 such affidavit or statutory declaration is made shall in every case, if 
 required, attend to be cross-examined thereon. 
 
 Eecovery 49. Every penalty recoverable on summary conviction under this 
 
 and applica- Act may be prosecuted and recovered in the manner directed by the 
 
 *^°°,°^ Summary Jurisdiction Acts before a court of summary iurisdiction. 
 
 penalties. "^ "^ •' 
 
 Parties may- 
 appear in 
 person or 
 by counsel 
 or solicitor. 
 
 Parliamentary 
 agents entitled 
 to practise 
 
 50. In any proceedings under this Act any party may appear 
 before the Commissioners either by himself in person or by counsel 
 or solicitor. 
 
 51. Any person who shall be certified by the chairman of com- 
 mittees of the House of Lords or the Speaker of the House of Com- 
 mons to have practised for two years before the passing of this Act
 
 before Com- 
 missioners. 
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 551 
 
 in promoting or opposing bills in parliament sliall be entitled to Sect. 51. 
 praeti.se in an}- proceedings under this Act as an attorney or agent 
 before the Commissioners : Provided tliat every sucli person so prac- 
 tising as aforesaid shall, in respect of such practice and everything 
 relating thereto, bo subject to the jurisdiction and orders of the 
 Commissioners, and further provided that no such person shall 
 practise as aforesaid until his name shall have been entered in a 
 roll to be made and kept, and which is hereby authorized to be 
 made and kept, by the Commissioners. 
 
 52. The powers and jurisdiction conferred by this Act on the Saving of 
 Commissioners or Board of Trade shall be in addition to and not in Po^^fs con- 
 substitution for any powers and jurisdiction vested in the Commis- Commis- 
 sioners or Board of Trade by any statute. sioners and 
 
 Board of 
 
 53. — (1.) All documents purporting to be rules, orders, or certifi- Trade, 
 cates made or issued by the Board of Trade, and to be sealed with Proceedings 
 the seal of the Board, or to be signed by a secretary or assistant 2^ Board of 
 secretary of the Board, or any person authorized in that behalf by ^^ ^' 
 the President of the Board, shall be received in evidence, and 
 deemed to be such orders, rides, or certificates without further proof, 
 unless the contrary is shown. 
 
 (2.) A certificate signed by the President of the Board of Trade 
 that any order made, certificate issued, or act done, is the order, 
 certificate, or act of the Board of Trade, shall be conclusive evi- 
 dence of the fact so certified. 
 
 54. — (1.) AVhere any local authority having power under this Expenses of 
 Act to make or oppose any complaint to the Commissioners, or the lo"pl autho- 
 Board of Trade, or to enter into any agreement to pay the whole or ^''"^^• 
 a portion of the expenses of complying with an order of the Com- 
 missioners or the Board of Trade, or to make any application for 
 the abandonment or acquisition of a canal under this Act, incur- 
 any expenses in or incidental to such complaint, opposition, agree- 
 ment, or application, such expenses may be defrayed out of the 
 rates or funds out of which the expenses incurred by such authority 
 in the execution of their ordinary duties are defrayed, and if such 
 authority is a rural sanitary authority in England, shall be defrayed 
 as general expenses, unless the Local Government Board direct 
 that they shall be defrayed as special expenses. 
 
 (2.) A local authority may enter into any contract involving the 
 pajTuent by themselves and their successors of any expenses autho- 
 rized by this section to bo defrayed. 
 
 (3.) Where any such local authority liave no power to borrow 
 money for the purpose of defraying any exj)enses authorized by 
 this section, such authority, if other than a survej^or of highways, 
 may, with the consent of the Board of Trade in the case of any 
 harbour board or conservancy authority, and Avith the consent of 
 the Local Government Board in the case of any other authority, 
 borrow money in manner provided by the Local Loans Act, 1875, ^ gg ^^ *
 
 552 APPENDIX. 
 
 Sect. 54. on tlio security of the rates or funds out of wliicli the expenses are 
 
 authorized to be defrayed, and the prescribed period for the loan 
 
 shall he such period as the Board giving such consent may approve. 
 (4.) On the request of any board whose consent is required for 
 such loan, the Board of Trade or Commissioners shall certify such 
 particulars respecting the amount of the said expenses and the 
 propriety of incurring the same and of borrowing for the payment 
 thereof as may be requested by such board. 
 
 (5.) In Ireland, any authority borrowing in pursuance of this 
 
 41 & 42 Vict, section may borrow in manner provided by the Public Health 
 
 c. 52. (Ireland) Act, 1878, in like manner as if the provisions of that Act 
 
 with respect to borrowing were re-enacted in this section, and in 
 
 terms made aj)plicable thereto. 
 
 Definitions. 55^ j^ ^]^jg ^f.^^ unless the context otherwise requires, — 
 
 Terms defined by the Eegulation of Eailways Act, 1873, have 
 the meanings thereby assigned to them : 
 
 The term " conservancy authority " means any persons who are 
 otherwise than for private profit intrusted with the duty or 
 invested with the power of conserving, maintaining, or im- 
 proving the navigation of any tidal or inland water or navi- 
 gation : 
 
 The term " harbour board " means any persons who are other- 
 wise than for private profit intrusted with the duty or invested 
 with the power of constructing, improving, managing, regula- 
 ting, and maintaining a harbour, whether natm-al or artificia], 
 or any dock : 
 
 The term "Lord Chancellor" means the Lord High Chancellor 
 of Great Britain : 
 
 The term " undue preference" includes an undue preference, or 
 an undue or unreasonable prejudice or disadvantage, in any 
 respect, in favour of or against any person or particular class 
 of persons or any particular description of traffic : 
 
 The term "terminal charges" includes charges in respect of 
 stations, sidings, wharves, depots, warehouses, cranes, and other 
 similar matters, and of any services rendered thereat : 
 
 The term "merchandise" includes goods, cattle, live stock, and 
 animals of all descriptions : 
 
 The term "trader" includes any person sending, receiving, or 
 desiring to send merchandise by railway or canal : 
 
 The term " home," in relation to merchandise, includes the United 
 Kingdom, the Channel Islands, and the Isle of Man : 
 
 The term " rating appeal " means an appeal against any valuation 
 
 list or against any poor rate or any other local rate : 
 
 27 & 28 Vict. The term " Summary Jurisdiction Acts " in Scotland means the 
 
 c. 53. _ ^ Summary Procedure Act, 1864, the Summary Jurisdiction 
 
 ^^^ ■^^ ^^^''*- (Process) Act, 1881, and any Act or Acts amending the same; 
 
 ^' ■ and in Ireland, within the police district of Dublin metropolis 
 
 the Acts regulating the powers and duties of justices of the 
 
 peace for such district, or of the police of such district, and
 
 THE RAILWAY AND CANAL TRAFFIC ACT, 1888. 553 
 
 elsewhere, the Petty Sessions (Ireland) Act, 1851, and any Act sect. 55. 
 amending the same : 
 
 The term "superior Court" means, as regards England, the 14 & 15 Vict. 
 High Court of Justice, as regards Scotland, the Court of c. 93. 
 Session, and as regards Ireland, the High Court of Justice : 
 The term "superior court of appeal" means, as regards England, 
 her Majesty's Court of Appeal ; as regards Scotland, the Court 
 of Session in either division of the Inner House; and as regards 
 Ireland, her Majesty's Court of Appeal : 
 The term "rules of court" means, as regards Scotland, acts of 
 
 sederunt. 
 In the application of this Act to Ireland, the expression "council 
 of a borough " includes town or township commissioners, and 
 any reference to justices in quarter sessions shall be construed to 
 refer to a grand jury; and any reference to the Local Grovernment 
 Board or to an iirban or rural sanitary authority, sliall be construed 
 to refer to the Local Government lioard for Ireland, and to an 
 urban or rural sanitary authority in Ireland. 
 
 56. This Act shall come into operation on the first day of Commence- 
 January one thousand eight hundred and eighty-nine, which day °^"^t o^ -^c*^- 
 is in this Act referred to as the commencement of this Act : 
 Provided that at any time after the passing of this Act any appoint- 
 ment and rules may be made, and other things done for the purpose 
 
 of bringing this Act into operation at such commencement. 
 
 57. Subject to general rules to be made under this Act, all Pending 
 proceedings which, at the commencement of this Act, under the ^u^iQess. 
 Eegulation of Railways Act, 1873, and Acts amending it, or under ^^ * "^' "^i^*^- 
 any other Acts, are pending before the Eailway Commissioners, shall ^' 
 
 be transferred to the Eailwaj' and Canal Commission under this 
 Act, and may thereupon be continued and concluded in all respects 
 as if such proceedings had been originally instituted before that 
 Commission. 
 
 58. Every action or proceeding wliieli might have been brought Transfer of 
 before the Eailway Commissioners if this Act had been in force at pending 
 the time when such action or proceeding was begun, and is at the '^"•'*"i?'^* "o™- 
 commencement of this Act pending before any superior Court, may, courts, 
 ujion the application of either part}', be transferred by any judge 
 
 of such superior Court to the Eailway and Canal Commissioners 
 under this Act, and may thereupon be continiied and concluded in 
 all respects as if such acti(jn or }>roce(;ding liad been originally 
 instituted before that Commission : Provided that no such transfer, 
 nor anything herein contained, shall varj' or affect the rights or 
 liabihties of any party to such action or proceeding. 
 
 59. — (1.) The enactments mentioned in the schedule to this Act Repeal. 
 are hereby repealed to the extent therein specified. 
 (2.) The repeal effected by this Act shall not affect — 
 (a) Anything done or suifered before the commencement of this
 
 554 
 
 APPENDIX. 
 
 Sect. 59. Act under any enactment repealed by this Act, or tlie expiration 
 
 of any office which would otherwise have expired by virtue of 
 
 any enactment repealed by this Act ; nor 
 
 (b) Any right or privilege acquired, or duty imposed, or liability 
 or disqualification incurred, under any enactment so repealed ; 
 nor 
 
 (c) Any fine, forfeiture, or other punishment incurred or to be 
 incurred in respect of any offence, committed or to be com- 
 mitted against any enactment so repealed ; nor 
 
 (d) The institution or continuance of any proceeding or other 
 remedy, whether under any enactment so repealed, or other- 
 wise, for ascertaining or enforcing any such liability or dis- 
 qualification, or enforcing or recovering any such fijie, forfeiture, 
 or punishment as aforesaid. 
 
 SCHEDULE. 
 
 Acts Repealed. 
 
 Section 59. Note. — A description or citation in this schedule of a portion of an Act is 
 
 inclusive of the words, section, or other part first and last mentioned, or other- 
 wise referred to as forming the beginning or as forming the end of the portion 
 described in the description or citation. 
 
 Session and Chapter 
 of Act. 
 
 17 & 18 Vict. c. 31 
 31 & 32 Vict. c. 119 
 
 36 & 37 Vict. c. 48 , 
 
 The Railway and Canal 
 Traffic Act, 18o4. 
 ' The Regulation of Rail- 
 ways Act, 1868. 
 
 The Regulation of Rail- 
 ways Act, 1873. 
 
 37 & 38 Vict. c. 40 
 
 Extent of Repeal. 
 
 The Board of Trade 
 Arbitrations, &c. Act, 
 1874. 
 
 Section four and section five. 
 
 Section sixteen, paragraph two, 
 from "The provisions of " 
 to the end of the section. 
 
 Section three, from ' ' The term 
 ' superior court' " to the end 
 of the section, section four, 
 section eleven, section twelve, 
 section thirteen, section 
 twenty-one, section twenty- 
 two, section twenty-three, 
 section twenty -four, section 
 twenty-five, section twenty- 
 six from the words ' ' The 
 Commissioners may review " 
 to the end of the section, 
 section twenty-eight, section 
 twenty-nine, section thirty- 
 four, and section thirty- 
 seven. 
 
 Section eight, from "and shall 
 continue in force " to "ex- 
 piration."
 
 INDEX 
 
 [*^* The references are to the pages.'] 
 ACCIDENTS TO PASSENGERS. See Passenoeb, Caeeiees of, by Eailwat 
 
 AND EOAD. 
 
 ACCOMMODATION, 
 
 required to be granted by railway companies. See Facilities, Due and 
 Reasonable. 
 
 ACT OF GOD, 
 
 carrier not liable for loss by, 40, 165, 167. 
 
 must be immediate cause of loss, 42. 
 
 not contributed to by negligence, 44, 45. 
 
 is accident produced alone by physical causes, 42. 
 
 must be independent of human action, 42. 
 
 loss by fire, otherwise than lightning, not the act of God, 43, 46. 
 
 ACTION, 
 
 for refusing to carry, 5, 24. 
 
 for loss or damage to goods, 200. 
 
 for delay in transit, 190—200, 460. 
 
 by carrier for injury to goods, 93. 
 
 by carrier for price of conveyance, 95, 219. 
 
 by carrier for money paid on account of goods, 96, 97. 
 
 ADDRESS ON GOODS, 
 
 goods for conveyance to be fully and legibly addressed, 29, 131, 136. 
 mistake by consignor in addressing or directing goods, carrier not liable for, 
 
 200. 
 discrepancy between consignment note and, 200. 
 carrier's liability ceases on tendei'ing goods for delivery at address given, 
 
 84, 209. 
 misdelivery through wrong address, 87. 
 company liable for passenger's luggage although not properly addressed, 408.
 
 556 INDEX. 
 
 AGENT, 
 
 delivery of goods to, a delivery to tbe carrier, 32, 66, 149. 
 of consigaoe, delivery to, ends transitia^, 86. 
 
 passenger carriers liable for acts of their, and drivers, 485, oil. 
 company bovind by contract of, whom they put forward as having manage- 
 ment of caiTying business, 178. 
 station mast--er agent for the company, to deliver goods, 202. 
 See Sebvants. 
 
 ALLOWANCE FOR CARTAGE, 357. 
 
 ALTERNATIVE RATES, 149, 150, 238. 
 
 ANIMALS, CARRIAGE OF, BY RAILWAY, 
 
 statutory obligation to carry, 365. 
 
 limitation of liability for loss or injury to horses, sheep, neat cattle, and 
 
 pigs, 369. 
 where company carry by sea, 372. 
 limitation of liability where carried by sea, 372. 
 Privy Council Regulations as to trucks, horse-boxes, &c., and overcrowding, 
 
 373. 
 Privy Council Regulations as to cleansing and disinfection of horse-boxes, 
 
 cattle-trucks, &c., 374 
 provision of water and food for, on railway, 379. 
 company insurers of animals carried, 13, 381. 
 not liable for any act wholly attributable to latent inherent vice in the 
 
 animal, 381. 
 animals must be didy delivered to company to fix them with liability, 385. 
 company bound to provide trucks reasonably sufficient for conveyance of 
 
 cattle, 385. 
 company bound to carry, in reasonable time, 387. 
 degree of care required from company in delivering animals, 388. 
 duty to deliver animals in a fit and proper place, 390. 
 when responsibility of company terminates, 391. 
 what company may do if animals left on their hands, 394. 
 
 BAGGAGE. See Luggage. 
 
 BYE-LAWS, RAILWAY, 
 
 general power to make, 467. 
 
 afi'ecting public, must be sanctioned by Board of Trade, 468. 
 
 allowance of, by Board of Trade, does not validate, 468. 
 
 text of bye-laws affecting public, 469. 
 
 as to conveyance of explosives, 124. 
 
 CABS, 
 
 admission into railway station, 360. 
 
 in metropolis, 514. Sec Passengees, Caekiees of, by Road.
 
 INDEX. 557 
 
 CANAL COMPANIES, 
 
 are common carriers if bound or profess, or actually carry goods, 13. 
 where, maintain canal for use of public on payment of tolls, are not common 
 
 carriers, 13. 
 duty of, to afford all reasonable facilities for receiving- and forwarding 
 
 traffic, 252. 
 history of, 254. 
 
 See Regulation of Railways Act, 1873, ss. 8, 16, 17. .522 — 524. 
 Railway and Canal Traffic Act, 1888, Part III., 544. 
 
 CARRIERS ACT, 
 
 articles within, 56 — 59. 
 
 express declaration of contents of package necessary, 62. 
 
 refusal to declare does not justify refusal to carry, 03. 
 
 increased rate of charge to be notified, 63. 
 
 carrier's refusal to give receipt for goods and extra charge deprives him of 
 
 protection of Act, 65. 
 delivery at any " office, warehouse or receiving house," sufficient to render 
 
 carrier liable, 65. 
 Act does not affect special contract for conveyance of the goods, 60. 
 Act does not protect carrier from loss by felonious act of his servant, 66. 
 carrier not liable for loss of articles within Act not declared, &c., 68. 
 ■when he will be liable imder such circumstances, 69. 
 carrier protected, although loss or injury happens after goods negligently 
 
 carried beyond their destination, 69. 
 carrier protected from liability for the consequences resulting from a loss, 70. 
 the declared value of the goods not conclusive evidence of value, 72. 
 where one contract to carry by land and sea, canier entitled to benefit of Act 
 
 as to land portion of the joui-ney, 72. 
 special contract does not exclude benefit of Act unless terms of contract 
 
 inconsistent with, 77. 
 
 CARRIERS FOR HIRE NOT COMMON CARRIERS, ^w Peivate Careiees 
 
 FOE HiEE. 
 
 CARRIERS OF GOODS, 
 by road, 21. 
 by railway, 115. 
 
 CARRIERS OF PASSENGERS, 
 by road, 507. 
 by railway, 433. 
 
 CARRIERS WITHOUT HIRE, 
 
 only liable for gross negligence, 1. 
 
 excused from liability where loss occasioned by theft, 4. 
 may bring action for injury to goods by wrong-doer, 4. 
 have no lien or right to detain goods for expenses, 4. 
 contract of, nudum pactum, 5.
 
 558 INDEX. 
 
 CARTAGE, 
 
 company no right to imiwse charge for, where customer does not require such 
 
 service, 208, 356. 
 company not bound to arrange for conveyance of goods hy road to stations, 
 
 142, 297. 
 special order given by consignee as to, company bound by, 208. 
 
 CATTLE. See Animals. 
 
 CHAEQES, 
 
 Ken for. See Liex. 
 
 for expenses incurred in preservation of property, 97. 
 for warehousing goods. See Waeehousemen. 
 inequality of. See Undue Peefeeence. 
 See Railway Rates and Chaeges. 
 
 CLOAK ROOM, 
 
 goods deposited at, 428. 
 
 Traffic Act, 1854, does not apply to goods left at, 420. 
 
 liability of company for loss of goods left at, 428. 
 
 COLLECTION AND DELIVERY RATES, 
 
 rebate off, where service not performed, 356. 
 
 COMMON CARRIERS, 
 definition of, 11. 
 
 railway companies who carry goods, luggage, &c., are, 13. 
 canal companies who carry goods are, 13. 
 
 owners, &c., of general ships carrying goods and luggage are, 13. 
 bargeowners, &c. carrying goods for all for hire are, 14. 
 ferrymen, if they profess to be of goods, are, 14. 
 owners of stage-coaches carrying goods and luggage are, 15. 
 hackney coachmen, of ordinary luggage of passengers, are, 16. 
 owners of wagons, carts, «S:c. who carry goods as a common employment 
 
 between two places are, 17. 
 express and transportation companies are, 17. 
 carriers of passengers only are not, 18. 
 railway companies, as regards passengers and goods carried under special 
 
 contract, are not, 18. 
 owners of cart or carriage let out for a special bargain are not, 19. 
 furniture removers are not, 19. 
 postmaster-general, postmasters, &c. are not, 20. 
 
 COMPETITION, 
 
 justifying a preference in rates, 353. 
 
 CONDITIONS, 
 
 railway company may limit liability by, 131. 
 must be just and reasonable, 130, 145.
 
 INDEX. 559 
 
 CONDITIONS-co«AJ«M«;. 
 
 onus of proving on company, 146. 
 "what are reasonable, 149, 158. 
 ■what are unreasonable, 160, 408. 
 See Special Contract. 
 
 CONSIGNEE OF GOODS, 
 
 becoming bankrupt, right of consignor to stop goods, 108. 
 
 notice of arrival of goods to, 83, 205. 
 
 duty of consignee thereupon, 205. 
 
 ■when, cannot be found, 88. 
 
 tender of delivery at house of, 84, 91, 209. 
 
 refusing goods, duty of carrier, 90, 91. 
 
 delivery to wi'ong, 87. 
 
 to examine and see if goods in good order, 221. 
 
 refusal by, to pay the carriage, 219. 
 
 making default in recei\ing goods, carrier can recover expenses Incurred, 
 
 212. 
 ■when liable to pay the carriage, 96. 
 
 entitled to reasonable time to inspect goods to be paid for on delivery, 89. 
 injured -while helping to take delivery of goods, 222. 
 
 CONSIGNOR OF GOODS, 
 
 primarily liable to pay the carrier, 95, 96. 
 bound by his declaration as to value of goods, 72. 
 countermanding directions as to delivery, 80. 
 duty of carrier to, -when consignee refuses goods, 88, 90. 
 See Addeess on Goods ; Feaud ; Lien ; Ownee of the Goods. 
 
 CONTRIBUTORY NEGLIGENCE, 492. 
 
 CONVERSION, 
 
 of goods by carrier, 55, 87, 202. 
 
 CORRESPONDENCE OF TRAINS, 299, 309. 
 
 CREDIT, 
 
 company giving, 362. 
 refusing ledger account, 362. 
 inconsistent with lien, 99. 
 
 DAMAGES, 
 
 power of Railway Commissioners to award, 241. 
 in cases of undue preference, 348. 
 
 DAMAGES, MEASURE OF, 
 
 loss of profits thi-Qugh delay in delivery by carrier, 193. 
 for delay in carrjnng and delivery, 194.
 
 '560 INDEX. 
 
 DAMAGES, MEASURE O'F— continued. 
 
 for loss of the use of the goods, special use, 194. 
 
 for deterioration and wasting of the goods by delay, 194. 
 
 for loss of market value by delay, 194, 197. 
 
 failiire to deliver, value estimated at destination, 193. 
 
 where no market at the destination, 193. 
 consequential damages, 198, 199. 
 
 consignor bound by his declared value of goods, 72, 201. 
 for refusing to carry goods, 24, 140. 
 
 for delay of a passenger through unpunctuality of train, 457, 460. 
 for injuries in conveying passengers, 504. 
 
 DANGEROUS GOODS, 
 
 person sending, bound to inform can-ier of the nature of, 28, 130. 
 company not bound to carry, 123. 
 penalty for sending without notice, 123. 
 right to open parcels suspected to contain, 28. 
 
 DECAY, 
 
 natural, of goods, carrier not liable for, 40, 50. 
 precautions to be used to lessen, 51, 54. 
 
 DELAY, 
 
 in delivering goods, liability for, 79, 82, 200 
 liability of carrier for loss caused by, 193. 
 damages for, 193. 
 of passenger train, liability for, 457, 460. 
 
 DELIVERY, 
 
 of goods to carrier, 2 1 . 
 
 under Carriers Act, 65. 
 of goods by carrier, 80, 82, 84. 
 
 at house of consignee, 84, 91. 
 
 to wrong person, 86. 
 of passengers' luggage, 425, 426. 
 
 DEMURRAGE, 212. 
 
 DETERIORATION. See Decay. 
 
 DISTRICTS, 
 
 right of company to divide their area into, 345. 
 undue preference of different, 359. 
 
 DIVERSION OF TRAFFIC, 310. 
 
 DOGS, 
 
 company bound to carry, 366. 
 
 within sect. 7 of Traffic Act, 1854. .370. 
 
 not allowed to accompany passengers, 482.
 
 INDEX. 561 
 
 EMPTY PACKAGES, 
 
 company not gratuitous bailees of retui-ned empties, 172. 
 condition as to loss of, held unreasonable, 172. 
 
 EQUALITY OF CHARGE. See Uxdue Peeferexce. 
 
 EXPLOSIVES, 
 
 company not bound to carry, 123. 
 bound to make bye-laws as to, 123. 
 text of bye-laws as to, 124. 
 
 EXPRESS COMPANIES, 17, 18. 
 
 FACILITIES, DUE AND REASONABLE, 
 
 obligation on company to give, 252. 
 
 to obtain order for, from Commissioners must prove public inconvenience, 254. 
 
 how far company bound to find reasonable accommodation, 255. 
 
 Commissioners may enforce provisions relating to traffic facilities in special 
 Act, 257. 
 
 Commissioners may deal with illegal and overcharges, 261. 
 
 refusal to carry goods except on terms company not warranted in exacting, 
 is a denial of, 262. 
 
 Commissioners cannot order company to make a new railway station, 265. 
 
 Commissioners' jurisdiction as to platforms, booking offices, and other struc- 
 tiu-es at any station, 265. 
 
 ■when Commissioners will order additional trains to be run, 277. 
 
 Commissioners' jurisdiction as to private branch railways or sidings, 280. 
 
 Commissioners' jurisdiction as to junction with private siding, 293. 
 
 when company bound to run over portion of foreign line to collect traffic, 296. 
 
 company not bound to provide facilities for traffic off the railway, 296. 
 
 company's obligations as a common carrier, 297. 
 
 obligation to run through trains on continuous line of railway, 302. 
 
 obligation to send traffic over railways which form a continuous line, 302. 
 
 "continuous line of railway communication," 303. 
 
 whether exercise of rimning powers are, 306. 
 
 through booking a facility, 307. 
 
 customer's right to require companies to form continuous route by which his 
 traffic may be sent at single booking, and for single payment, 308. 
 
 complaint to Commissioners of diversion of traffic, 310. 
 
 Commissioners may order tw^o or more companies to make mutual arrange- 
 ments to caiTy into effect their order, 311. 
 
 include through rates, tolls, or fares, 312. Sec TnEOUGH Rates. 
 
 FARES, RAILWAY. See Passengees, Caeeiers of, by Railway. 
 
 FIRE, 
 
 not generally an act of God, 46 . 
 accidental, carrier liable for loss bj-, 46, 167. 
 M. O O
 
 562 INDEX. 
 
 FIRE — continued. 
 
 loss or damage by, after acceptance and before conveyance, 38. 
 loss by, after conveyance and before delivery, 88. 
 
 FORWARDING TRAFFIC. See Facilitik3, Due and Reasonable. 
 
 FRAUD, 
 
 persons sending goods bound not to fraudulently conceal their value, 29, CO, 
 
 165, 171. 
 where no fraud is intended, no disclosure is necessary, unless inquuy is 
 
 made, 27, 30. 
 possession of goods fraudulently obtained from a can-ier will not deprive of 
 
 lien, 100. 
 carrier fi-audulently taking or converting goods to his own use, 55. 
 passenger travelling with intent to avoid payment of fare, 465. 
 
 FRAUDS, STATUTE OF, 
 
 receipt of goods by a carrier not an acceptance within, 104. 
 effect of, on consignee's right to sue, 108. 
 
 GENERAL LIEN. See Lien. 
 
 GOODS, CARRIAGE OF, BY RAILWAY, 
 
 I. Delivery to railway company, 
 
 obligation on company to carry, 116. 
 
 customer's right to send goods over railways at a single booking and 
 
 for a single payment, 122. 
 company have right to collect what traffic they can, and to carry it as 
 
 far as they can on own line, 122. 
 company not bound to carry goods of a dangerous nature, 123. 
 bye-laws regulating conveyance of gunpowder or other explosives, 
 
 123. 
 dargerous nature of goods must be communicated to company, 130. 
 company may refuse to carry, or charge more, if extra liability sought 
 
 to be imposed, 130. 
 company may refuse to receive goods where packing, &c. defective, so 
 
 as to impose extra care and risks, 131. 
 goods ought to be plainly and legibly marked by consignor, 131. 
 company can refuse to caiTy if goods tendered at an unreasonable 
 
 time, 134. 
 company bound to receive packed parcels, 134. 
 sender must inform company if goods require special care, 135. 
 goods should be fully and legibly addi-essed, 136. 
 company have no absolute right to know contents or value of package, 
 
 137. 
 company entitled to be paid for carriage of goods before receiving 
 
 into their possession, 138.
 
 INDEX. 563 
 
 GOODS, CARRIAGE OF, BY RKUS^KY -continued. 
 I. Belivcrii to railway company — continued. 
 
 what is a sufficient delivery to company to make them responsible as 
 
 carriers, 138. 
 when company may make special contract, 140. 
 
 special contract, though not signed by consignor, binding on the 
 company, 142. ° 
 
 company not bound to provide booking offices off the railway, 142. 
 II. OhVujatiom during transit. 
 
 company entitled to protection of Gamers Act, 144. 
 company liable for negligence, notwithstanding any notice, 144. 
 company may make special contract with consignor under certain con- 
 ditions, 145. 
 what conditions are reasonable, 149. 
 company carrying at alternative rates, 150. 
 liability of company carrying goods by sea, 162. 
 may limit theii- liability during sea transit, 163, 182, 
 insurers of the goods carried, 164. 
 liability for damage from accidental fire, 167. 
 liability for damage from defective truck, 168. 
 duty to keep station premises in safe and proper condition, 169. 
 when company not Uable for damage from improper packing, 170. 
 effect of concealment of value of goods by consignor, 171. 
 liability when hauling owner's trucks, 172. 
 liability of common carriers as to "returned empties," 172. 
 construction of contract to carry " at owner's risk," 173. 
 duty of company to have servants authorised to act for them, 175. 
 authority of the company's ser^-ants, 177, 178. 
 company bound by the contract of their agent, 179. 
 when company estopped from setting up illegality of their acts, 179. 
 special Act of the company, how construed, 180. 
 company carrying from a place within, to a place without, realm, 
 
 subject to same liabilities, 182. 
 where company receive goods for conveyance beyond their own lines 
 182. ' 
 
 carrying company on their own line liable as if they contracted for 
 carriage of the goods, 187. 
 III. Obligations as to delivery. 
 
 not bound to carry by shortest route, 188. 
 
 must deliver within a reasonable time, 189. 
 
 no impHed contract to deliver with punctuality, 191. 
 
 contract to carry by particular train no waiTanty that it will arrive at 
 
 time it ordinarily does, 192. 
 measure of damages for unreasonable delay, 193. 
 measure of damages where goods lost in transit or wholly or partially 
 
 destroyed, 200, 201. 
 station-master agent of company to deliver goods, 202. 
 owner of goods may alter destination of goods during transit, 202. 
 () O 2
 
 564 INDEX. 
 
 GOODS, CARRIAGE OF, BY RAILWAY— continued. 
 III. Ohligations as to ffc^urr//— continued. 
 
 when duty of company to give notice of iirrival of goods to con- 
 signee, 205. 
 
 consignee's duty to remove goods on receiving such notice, 205. 
 
 amount of time consignee allowed to iinload and remove goods, 211. 
 
 company n(jt bound to make personal delivery in absence of usage or 
 special contract to the contrary, 208. 
 
 goods sent at collection and delivery rates, 208. 
 
 company cannot charge for conveyance to and from station where 
 company does not require such service to be performed, 208. 
 
 company bound to keep goods reasonable time for consignee to claim 
 them, 211. 
 
 company during such time liable as insurers, 211. 
 
 company after such time are mere bailees of the goods for hire, 211. 
 
 company entitled to recover expenses reasonably incurred in taking 
 care of goods, 212. 
 
 company's duty, if cannot find consignee, or he refuses to receive 
 goods, 213. 
 
 when company only liable as warehousemen, 214. 
 
 what company may do if consignee refuses to pay the carriage, 219. 
 
 duty of company if they keep goods for their lien, 97, 220. 
 
 consignee should inspect goods on delivery, 221. 
 
 duty of company to consignee taking delivery, 222. 
 
 GOODS, COMMON CARRIERS OF, 
 
 I. The receiving of goods, 
 
 duty of, to receive goods, 21 — 26. 
 
 duty does not arise luitil ready to set out on journey, 21. 
 
 indictment will lie for refusing to carry goods without reasona'ole 
 excuse, 22. 
 
 may limit business to carriage of particular classes of merchandise, 
 22. 
 
 need not carry articles of a perishable or fragile nature, 23. 
 goods tendered at an unreasonable time, 24. 
 receive goods until ready to set out on journey, 24. 
 
 entitled to be paid hire before receiving goods, 24. 
 
 bound by representations made at their office by clerks or servants, 26. 
 
 as a general rule, not entitled to know contents of package, 26. 
 
 consignor of an article of dangerous nature bound to communicate the 
 same to, 28. 
 
 goods ought to be fully and legibly addi-essed, 29. 
 
 consignor must make use of no fraud or ai-tifice to deceive, 29. 
 
 goods must be delivered to carrier liimself or his agent, 34. 
 
 what is sufficient delivery of goods to render carrier liable, 32, 33. 
 
 responsibihty of, fixed by acceptance of goods, 34. 
 
 carrying goods under special agreement excluding common law con- 
 tract, 36.
 
 IXDEX. 565 
 
 GOODS, COMMON CARRIERS O-F-contlnned. 
 
 I. The reccivbuj of goods — continuocl. 
 
 where act as warehousemen and their liability as such, 37, 38. 
 bound to follow instructions of owner of goods where' reasonably 
 practicable, 39. 
 
 II. OhUgntlonti during transit, 
 
 liable in case of loss of, or injury to, the goods, 10. 
 not, if caused by act of God, 40—45. 
 
 by Queen's enemies, 40, 44, 46. 
 by contributory negligence on part of bailor, 40. 
 by inherent vice in or natm-al deterioration of the 
 thing carried, 40, 50. 
 responsible for damage or loss by fire, 4G. 
 
 occasioned by robbers or mobs, 47. 
 for injiuy occasioned by negligent act of third person, 48. 
 responsibility the same where goods carried to a place without the 
 realm, 48. 
 
 not responsible where owner of goods assumes care and custody of 
 
 them, 49. 
 duty to carry safely independent of any contract, 49. 
 onusprohandi on, to exempt themselves for loss or injury to goods, 50. 
 not responsible for losses which arise from ordinary wear and tear and 
 chafing of goods, 50. 
 nor from ordinary loss, deterioration in quantity or quality, 50. 
 inherent natural infirmity or tendency to damage, 50. 
 nor which arise from the negligence or fraud of the owner or 
 consignor thereof, 50. 
 responsible where deterioration caused by default of, 50. 
 when responsible for damage accruing to goods from'improper packing- 
 by sender, 52. ° 
 
 effect of express directions to, to carry goods in a particular manner 
 
 and position, 53. 
 bound to take reasonable care of goods injured by cause for which not 
 
 responsible, 54. 
 responsibility for fraudulently converting goods to their own use, 55. 
 limitation of responsibility by the Carriers Act, 1830 . . 56. 
 cannot limit liability by public notice or declaration, for goods not 
 
 within Carriers Act, 72. 
 can limit liability by making special contract with customer, 74. 
 may prescribe their own terms of conveyance for goods they arc not 
 
 common carriers of, 76. 
 special contract does not exclude benefit of Carriers Act, unless terms 
 of contract inconsistent witli, 77. 
 III. The dcUvcrg of goods, 
 
 impHed undertaking to deliver goods according to ordinary com-se of 
 
 busmess, or terms of contract, 79. 
 bound to carry by route professed without deviation, 79. 
 owner of goods may alter place of delivery, 80.
 
 500 INDEX. 
 
 GOODS, COMMON CARRIERS O'F—coHtimicd. 
 
 III. The dclivenj of goods — continued. 
 
 may deliver goods wlierever they and consignee agree, if no special 
 
 contract between them and consignor as to place of delivery, 80. 
 duty to see goods delivered at place to which directed although 
 
 beyond the place to which they profess to carry, 81. 
 when their responsibility in that character comes to an end, 81. 
 bound to deliver within a reasonable time in the absence of special 
 
 contract, 82. 
 bound to give notice to consignee of arrival of goods, 83. 
 when bound to deliver at consignee's residence, 84. 
 non-delivery to consignee excused when notice of stoppage in transitu 
 
 received, 114. 
 delivery to duly authorized agent of owner or consignee sufficient, 86. 
 delivery to person not entitled to receive the goods is conversion by, 87. 
 bound to keep reasonable time for consignee to claim in, 88. 
 where consignee has to pay for goods on delivery by carrier, entitled 
 
 to inspect them before accepting, 89. 
 where consignee refuses goods, can-ier bound to do what, under the 
 
 circumstances, is reasonable, 90, 91. 
 liability as warehousemen, 92. 
 measure of damages where goods are lost by, 200. 
 
 IV. Rights and remedies of, 
 
 have special property in goods delivered to them for couveyance, 93. 
 if carriage of goods dispensed with, need not restore to owner until 
 
 paid due remuneration, 93. 
 may maintain action against person injuring goods, 93. 
 have insurable interest in the goods, 94. 
 
 entitled to reasonable amount for the conveyance of goods, 94. 
 not bound to charge all persons equally, 9-5. 
 entitled to make higher reasonable charge for conveyance of valuable 
 
 goods, 95. 
 who is liable to pay for the conveyance, 95. 
 recovery of money paid on account of goods, 96. 
 lien of. See Lien. 
 
 GRATUITOUS, 
 bailment, 1. 
 passenger, rights of, 492, 494. 
 
 GROSS NEGLIGENCE, 
 
 what is, 1, 3. 
 
 carriers without hire, liable for, 1 . 
 
 carriers not liable for undeclared goods within Carriers Act lost by, 68. 
 
 GUNPOWDER, 
 
 carrying by railway, 123. 
 with troops, 440. 
 See Explosives.
 
 INDEX, 567 
 
 HACKNEY COACHMAN, 
 
 liability of, as common carrier of lugg-ago, 16. 
 injury to passenger by negligence in di-iving, &c., oil. 
 See Caeeiees of Passenqees bt Road. 
 
 HOESES, 
 
 limited liability of company for loss of, 369. 
 damage from "proper vice," 383. 
 
 defective horse-box, 386. 
 regulations as to horse-boxes, 373, 374, 375. 
 recovery of livery charges for, 394. 
 
 INHERENT DEFECTS, 
 
 damage arising from, liability for, 40, 50. 
 carrier liable for, when he has been negligent, 50. 
 
 INJUNCTION, 
 
 to restrain undue preference, 337. 
 
 INSPECTION OF RAILWAY RATE BOOKS, 232. 
 
 INSURANCE, 
 
 carrier may insure property carried, 94. 
 not a ground for diminishmg damages, 505. 
 
 INSURERS, 
 
 carriers of goods are, 40. 
 warehousemen are not, 37, 38, 92. 
 
 LARCENY 
 
 by carrier, 55. 
 
 LATENT DEFECTS 
 
 in vehicle, earner responsible for, in case of goods, 168. 
 not responsible for, in case of passengers, 485. 
 
 LEAKAGE, 
 
 when carrier not liable for, 5 1 . 
 
 caused by negligence of carrier, 50. 
 
 " not liable for leakage or breakage," meaning of, 52. 
 
 LIEN, 
 
 gratuitous carrier has no, 4. 
 
 common carrier has particular lien on goods carried for price of carriage, 97, 
 when claim to a general lien can be supported^ 97. 
 
 conveyance under special contract does not deprive carrier of, unless contract 
 inconsistent with, 99.
 
 568 INDEX. 
 
 LIEN — con t inued. 
 
 carrier by dcliTering part of goods does not abandon his lien upon the rest, 
 
 100. 
 defeated by delivering up possession of the goods, 100. 
 does not authorize carrier to sell the goods, 101. 
 carrier not entitled to charge for warehousing goods during time he retains 
 
 them as a, 101. 
 carrier has no right to use goods detained, 102. 
 of a railway company, 247. 
 duty of company if they keep goods for their lien, 220. 
 
 LIVE STOCK. See Animals. 
 
 LUGGAGE OF RAILWAY PASSENGERS, 
 
 obligation on company to convey, 397. 
 
 not bound to carry or liable for merchandise delivered as luggage, 397, 406. 
 
 company insurers of, 13, 400. 
 
 bye-law exempting company from responsibility for, void, 403. 
 
 no charge for carriage of, 398, 400. 
 
 weight allowed generally, 398. 
 
 of troops, 399. 
 
 of passenger by parliamentary train, 399. 
 
 of passenger by excursion train, 409. 
 
 what is personal luggage, 403. 
 
 company may waive their rights as to amount and nature of luggage, 396. 
 
 liability attaches, though luggage not addressed, 408. 
 
 master sending his luggage by his servant, 410. 
 
 liability for servants' luggage when ticket taken by master, 411. 
 
 placed in same carriage with passenger, 411. 
 
 commencement of liability for, 414. 
 
 where left with a porter for ciistody, 418. 
 
 within Carriers Act, 419. 
 
 within sect. 7 of Traffic Act, 1854 . .420. 
 
 liability for, during sea transit, 421. 
 
 liability where company cany beyond their own railway, 423. 
 
 cariying company liable for loss, &c., of luggage carried, 423. 
 
 duty of company on arrival of passenger at destination, 425. 
 
 duty of company to convey luggage to cabs, 426. 
 
 termination of liability for, 425. 
 
 unclaimed, 427. 
 
 liability for, deposited in cloak-room, 428. 
 
 MAILS, 
 
 obligation on company to convey, 525. 
 
 MERCHANDISE, 
 
 definition of, in Traffic Act, 1888. .552. 
 not passengers' luggage, 406.
 
 rXDEX. o69 
 
 NEGLIGENCE, 
 
 gross negligence, what is, 2. 
 
 ordinary negligence, what is, 7. 
 
 questions of negligence ai-e for the jury, 490. 
 
 a carrier's liability for negligence extends to negligence of servants, 48G, 511. 
 
 contributory negligence on part of bailor, 40. 
 
 carrier cannot generally excejit, 77. 
 
 railway company cannot generally except, 162. 
 
 NOTICE, 
 
 public, ineffectual to limit carrier's liability, 60, 72. 
 origin and history of, 60, 73. 
 required by Carriers Act, 63. 
 
 when there are two valid notices given, carrier bound l)y the one least bene- 
 ficial to himself, 73. 
 to consignee of arrival of goods, 83, 205. 
 to consignor of refusal of consignee to accept, 90. 
 general notice given by railway company limiting liability void, 144, 146. 
 
 OMNIBUS, 
 
 admission of, into railway station, 3G0. 
 liability for luggage of passenger, 16. 
 
 See Passengees, Caeeiers of, by Road. 
 
 OPENING PACKAGES, 
 
 right of carriers as to, 26, 134, 137. 
 
 OVERCHARGES, 
 
 for conveyance, recoverable, 240. 
 
 whether amount to refusal of facilities, 261. 
 
 OVERCROWDING, 
 
 obligation of company in respect of, 450. 
 refusal to carry if trains full, 132. 
 goods delayed by pressure of traffic, 190. 
 of animals in railway trucks, 373. 
 
 OWNER OF THE GOODS, 
 
 person delivering goods to be treated as, 95. 
 for the purpose of delivery by carrier, 99. 
 directions of, to be obeyed during transit, 39. 
 countermanding directions as to delivery, 80, 202. 
 assuming care and custody of the goods himself, 49, 165. 
 accompanying goods during transit, 49. 
 Sec CoNSiGNOE (Old Consignee. 
 
 OWNER'S RISK, 
 
 meaning of stipulation, goods carried at, 173. 
 passengers' luggage carried at, 410.
 
 570 INDEX. 
 
 PACKED PARCELS, 
 
 company bound to carry, 134. 
 
 chai'geable at a tonnage or parcel rate, 134. 
 
 not justified in opening x^ackage, 134. 
 
 to be charged for equally to all persons, 356. 
 
 PACKING, 
 
 refusal to carry where packing defective, 131. 
 
 loss from impro]Der, 52, 170. 
 
 duty to remedy defects in, 54, 171. 
 
 PARCELS, 
 
 extra charge for "packed," an overcharge, 134. 
 
 carrier no general right to be told contents and value of, 26, 134, 137. 
 
 entitled under Carriers Act to know contents, 62. 
 suspected to contain dangerous goods may be opened, 28. 
 empty packages, 172. 
 in United States carried by " Express " companies, 18. 
 
 PARTICULARS OF CHARGES, 
 
 for goods, company bound to furnish, 235. 
 
 PASSENGERS, CARRIERS OF, BY RAILWAY, 
 
 I. Generally, 
 
 company not common carriers of, 18. 
 
 obligation to caiTy passengers, 434, 447, 449. 
 
 jurisdiction of Commissioners as to fares, tickets, train and station 
 
 acconunodation, 437. 
 obligations as to through traffic, 437. 
 undue preference, 438. 
 
 obligation to cany military, naval, and police forces, 438. 
 providing proper third class accommodation, 441. 
 providing workmen's trains, 442. 
 trains not to be provided for prize fights, 444. 
 communication between passengers and guard, 445. 
 smoking compartments to be provided, 446. 
 
 passenger entitled to all reasonable and usual accommodation, 448. 
 overcrowding of railway carriages, 450, 479, 481. 
 contract entered into with a passenger, 452. 
 effect of tickets issued, 452, 469, 475—480. 
 effect of time-tables issued, 453— 4G0. 
 liability for delay, 458. 
 
 when bound to pro^'ide special train owing to failure to keep time, 457. 
 damages for delay of a passenger, 460. 
 
 II. Fares, 
 
 power to charge, 463. 
 
 power to vary, 463. 
 
 jurisdiction of Commissioners over, 435, 464. 
 
 list of fares to be exhibited, 464.
 
 INDEX. 571 
 
 PASSENGERS, CARRIERS OF, BY RAILWAY— conlinued. 
 
 II. Fares — contiuued. 
 
 penalty for travelling with attempt to avoid pajonent of fare, 4G5. 
 through fares. See THEOUGn Rates. 
 
 III. Bijelaics, 
 
 power of company to make, 4G7. 
 
 must be confirmed and allowed by Board of Trade, 468. 
 text of byelaws issued by the Board of Trade, 4G9. 
 may publish accurate accounts of convictions without being liable for 
 Hbel, 483. 
 
 IV. Degree of care required from Eailicay Company, 
 
 not liable as insurers, but for negligence only, 485. 
 
 liability for injuries producing death, 488. 
 
 question of whether there was negligence or not one for the jury, 490. 
 
 contributoiy negligence by passenger, 492. 
 
 passenger travelling at his own risk, 492, 494. 
 
 not liable to a master for injury to a servant, 495. 
 
 liability of, where fare not paid, 49G. 
 
 duty of, to persons seeing passengers off by train, 497. 
 
 V. Evidence of negligence, 
 
 collision between two trains, prima facie evidence of negligence, 498. 
 train running off the line, prima facie evidence of negligence, 498. 
 what amounts to an invitation to a passenger to alight, 498. 
 bound to provide means of access to and egress from their carriages, 
 
 and stations, 591. 
 bound to take reasonable care of premises that persons coming there 
 
 not unduly exposed to danger, 501. 
 
 VI. Compensation for injuries, 
 
 the measure of damages, 504. 
 
 money received on an accidental insurance policy not to be deducted, 
 
 505. 
 arbitration of damages, 505. 
 order for medical examination of person injured, 505. 
 
 PASSENGERS, CARRIERS OF, BY ROAD, 507. 
 I. General!//, 
 
 when bound to convey persons who offer themselves to be carried, 508. 
 
 are entitled to receive fare when seat engaged, 508. 
 
 boimd to carry the whole journey, 508. 
 
 must carry within reasonable time, 508. 
 
 must cany with reasonable speed, 508. 
 
 measure of damages for breach of contract to deliver at destination, 
 
 508. 
 not insurers, but liable for negligence, 18, 509. 
 when master liable for negligent driving by servant, 509. 
 not liable for injury from inevitable accident, 509, 510. 
 bound to provide conveyances reasonably sti'ong and sufficient for 
 journey, 511.
 
 dl2 IXDEX. 
 
 PASSENGERS, CARRIERS OF, BY TLOAB-coithnicd. 
 
 I. General/ 1/ — continued. 
 
 bound to pro\'ide careful drivers of reasonable skill and good habits, 511. 
 bound to employ horses steady and not vicious, 511. 
 accidents through driving on wrong side of the road, 512. 
 obligation to avoid injury to foot passengers, 513. 
 obligation to carry luggage, 513. 
 
 II. In the metropolis, 
 
 cab plying for hire bound to carry passengers, 514. 
 
 not bound to drive more than six miles, 515. 
 
 vrhen hired by distance must drive not less than six miles an hour, 515. 
 
 what speed must drive when hired by time, 515. 
 
 bound to carry a reasonable quantity of luggage, 515. 
 
 payment for luggage, 516. 
 
 cab fares, how calculated, 516. 
 
 when omnibus must carry passengers, 516. 
 
 omnibus fares, 517. 
 
 PASSENGERS' LUGGAGE. See Lttggage of Railway Passengees. 
 
 PERISHABLE GOODS, 
 
 when may refuse to carry, 23, 77, 131. 
 
 carrier not liable for ordinary wasting or decay, 165, 167. 
 
 otherwise where loss caused by him, 166. 
 injured by cause for which carrier not responsible, duty of, 173. 
 effect of absence of notice of nature of, 135. 
 
 carrier may recover necessary expenses incurred in preservation of, 97. 
 where detained for lien, bound to take every care in their preservation, 102. 
 damages for deterioration by delay, 193. 
 
 PERSONAL LUGGAGE. See Passengers' Luggage. 
 
 PRIVATE CARRIERS FOR HIRE, 6. 
 
 definition of, 6. 
 
 common carriers may become, by special acceptance, 6. 
 
 bound to use ordinary diligence only, 6 . 
 
 definition of ordinary diligence, 7. 
 not liable for losses by thieves, 7. 
 
 not responsible if owner of goods conduce to their loss, 8. 
 liable, though owner exercise supervision over ti-ansport, 9. 
 responsibility of, may be increased or diminished by special contract, 9. 
 by warranting safety of goods, assume responsibility of common carriers, 10. 
 
 PUBLIC NOTICE, 
 
 carrier cannot limit liability by, 60, 72. 
 Sec Notice. 
 
 QUEEN'S ENEMIES, 
 
 carrier not liable for loss by act of, 40, 44, 165. 
 meaning of, 42.
 
 INDEX. 573 
 
 RAILWAY AND CANAL COMMISSIONERS, 527. 
 RAILWAY AND CANAL TRAFFIC ACT, 1854.. 519. 
 RAILWAY AND CANAL TRAFFIC ACT, 1888.. 527. 
 
 RAILWAY RATES AND CHARGES, 
 
 power to charge rates for carriage of goods and persons, 225. 
 
 vary the rates within the maximum sums, 229. 
 how rates calculated where railways amalgamated, 230. 
 
 two railways worked by one company, 230. 
 publication of tolls, 232. 
 
 goods rates, 233. 
 rate books open to inspection without fee, 233. 
 bound to give f oui'teen days' public notice of increase in rates or charges, 233. 
 
 on written application, to give particulars of charges, 235. 
 Commissioners may order company to distinguish and give details cf rates in 
 
 rate books, 23G. 
 bound to give reasonable facilities for through traffic at tkrough rates, toUs, or 
 
 fares, 238. See Theough Rates. 
 may limit liability by alternative rates, 238. 
 complaint to Board of Trade of alleged unfair or unreasonable rate of charge, 
 
 239. 
 Board of Trade to try and settle such difference amicably, 239. 
 Commissioners may entertain dispute involving legality of any toU, rate, or 
 
 charge, 240. 
 repayment by company of overcharges, 240. 
 what charges amount to an infringement of Railway and Canal Traffic 
 
 Act, 1854.. 261. 
 Commissioners may determine any question or dispute with respect to ter- 
 minal charges, 241. 
 what are "services incidental to the duty or business of a carrier," 243. 
 charges for station accommodation and services, 243. 
 
 meaning of words " load" and "unload" in special Act of company, 243. 
 what the terms "loading" and " unloading" comprehend, 244. 
 the word "covering" includes use of and making fast the sheets over a 
 
 loaded waggon, 245. 
 what the words "providing covers" include, 245. 
 
 company may recover charges for weighing at a station goods carried, 246. 
 lien of a railway company, 247. See Liex. 
 group rates, 345. 
 
 RATES. See Railway Rates and Chaeoes. 
 
 REASONABLE ACCOMMODATION. Sec Facilities, Due and Reasonable. 
 
 REASONABLE FACILITIES. Sec Facilities, Due and Reasonable. 
 
 REASONABLE HOURS, 
 
 tender of delivery within, 24, 84.
 
 574 INDEX. 
 
 EEASONABLE EOUTE, 188, 32G. 
 
 REASONABLE TIME, 
 
 goods to be delivered for conveyance in, 2-1, 134. 
 
 delivery to consignee within, 82, 190. 
 
 carrier's duty to keep a, for consignee to claim in, 81, 88, 211. 
 
 carriage of passengers within, 167, 190, 191. 
 
 EECEIVING, 
 
 goods for conveyance, 21. 
 luggage for conveyance, 305. 
 animals for conveyance, 385. 
 passengers for conveyance, 447. 
 
 EEGULATION OF EAILWAYS ACT, 1873.. 520. 
 
 EESPONSIBILITT OF COMMON CAEEIEES, 
 
 fixed by the acceptance of the goods, 34, 37. 
 
 in absence of special stipulation, continues until goods reach final destina- 
 tion, 35. 
 
 EOBBEES, 
 
 carrier liable for acts of, at common law, 47. 
 gratuitous carrier not liable for loss by, 4. 
 private carrier for hire not liable for loss by, 7. 
 carrier may indict person stealing the goods, 93. 
 not included in Queen's enemies, 47. 
 statutory exemption as to precious articles, G6. 
 
 RUNNING POWEES, 306. 
 
 SEA TEANSIT, 
 
 liability of company during, 163. 
 
 in vessels not belonging to the company, 162. 
 
 Carriers Act does not apply to, 72. 
 
 liability of company in conveying animals by, 372. 
 
 passengers' luggage by, 422. 
 
 SEEVANTS, 
 
 who are, of carrier wdthin meaning of Carriers Act, 66, 67. 
 who are, of company, 178. 
 
 cannot bind, beyond scope of authority, 32, 175, 178. 
 bound by representation of, at carriers' office, 26,175. 
 
 duty to have, to give directions and act as exigency of traffic may require, 
 175. 
 
 SHEEP, 
 
 limitation of company's Hability for, 369. 
 freshly shorn, to be carried in covered trucks, 373.
 
 INDEX. 575 
 
 SIDING CONNECTION, 280. 
 
 SMOKING, 
 
 compartments to be provided in train, 446. 
 bye-law prohibiting elsewhere on railway, 479. 
 
 SPECIAL CONTRACT, 
 
 by common carrier of goods, 36, 74, 75. 
 
 not affected by Carriers Act, 66, 145. 
 
 company may limit liability by, if signed, 145. 
 
 must contain just and reasonable conditions, 145. 
 
 invalid if framed against negligence, 77. 
 
 unsigned, binding on company, 140, 145. 
 
 construed most strongly against company, 146. 
 
 in case of warehousemen, need not be signed, 145. 
 
 credit given under for price of carriage, deprives carrier of lieu, 99. 
 
 in cases not within sect. 7 of Traffic Act, 1854, company may make, 140, 148. 
 
 as to liability for passengers' luggage, 423. 
 
 STAGE COACHES, 
 
 proprietors of, common carriers, 15. 
 
 unless they engage only for conveyance of passengers, 15. 
 proprietors of, responsible, as common carriers, for loss of passengers' lug- 
 gage, 15. 
 
 See Passengees, Caeeiees of, by Road. 
 
 STATIONS, 
 
 company must provide safe, 169, 390. 
 
 due and reasonable facilities at, 265. 
 
 undue preference in admitting vehicles to yards of, 360. 
 
 STATUTE, 
 
 rule for construction of special Act of company, 180. 
 
 STATUTES, 
 
 3 Car. 1, c. 2.. 55. 
 
 29 Car. 2, c. 3 (Statute of Frauds), 104, 105, 108. 
 11 Geo. 4 & 1 Will. 4, c. 08 (Carriers Act), 50—72. 
 1 & 2 Will. 4, c. 22, s. 35.. 514. 
 
 s. 37. .55, 515. 
 c. 32, s. 18.. 39. 
 & 7 Vict. c. 80, s. 7.. 517. 
 s. 33.. 517. 
 
 7 C& 8 Vict. c. 85, s. 6.. 399. 
 
 8 Vict. c. 20 (Railway Clauses Act), 
 
 8. 86.. 118, 121, 225, 403. 
 8. 89.. 121, 144. 
 s. 90.. 229, 333. 
 s. 91.. 230.
 
 576 INDEX. 
 
 STATUTES— co« i in ucd. 
 
 8 Vict. c. 20 (Railway Clauses Act) — continued. 
 s. 92.. 225. 
 s. 93. .232. 
 s. 94.. 232. 
 8. 95.. 232. 
 8. 97.. 247. 
 8. 103.. 465. 
 8. 105.. 120, 123. 
 8. 108. .467. 
 8. 109.. 468. 
 8. 146.. 465. 
 
 8 & 9 Vict. c. 42, ss. 5, 6 . . 13, 254. 
 
 9 & 10 Vict. c. 93 (Lord Campbell's Act), 488. 
 
 16 & 17 Vict. c. 33, s. 7.. 515. 
 
 s. 9..514. 
 s. 10.. 515. 
 
 17 & 18 Vict. c. 31 (Railway and Canal Traffic Act, 1854), 
 
 8. 1..339, 519. 
 
 s. 2.. 115, 253, 260, 299, 337. 434, 437, 438, 519. 
 s. 7.. 145, 369, 420. 
 19 & 20 Vict. c. 60, s. 17.. 46. 
 
 26 & 27 Vict. c. 92, s. 30.. 344. 
 
 27 & 28 Vict. c. XXV, s. 35. .505. 
 
 c. 95.. 489. 
 
 31 & 32 Vict. c. 119 (Regulation of Railways Act, 1868), 
 
 s. 14.. 163, 182, 372, 422. 
 
 s. 15. .464. 
 
 8. 16.. 163, 164, 344, 4G4, 554. 
 
 8. 17.. 235. 
 
 8. 18,. 231, 464. 
 
 8. 20.. 446. 
 
 8. 21.. 444. 
 
 8. 22.. 445. 
 
 s. 25. .505. 
 
 8. 26.. 506. 
 
 32 & 33 Vict. c. 115.. 516. 
 
 34 & 35 Vict. c. 78 (Regulation of Railways Act, 1871), 
 
 8. 12.. 162, 164, 372. 
 36 & 37 Vict. c. 48 (Regulation of Railways Act, 1873) . .520. 
 
 s. 14.. 233, 236. 
 
 8. 15. .242. 
 
 8. 18. .119. 
 38 Vict. c. 17, 8. 35.. 123. 
 
 41 & 42 Vict. c. 74.. 372. 
 
 42 & 43 Vict. c. 58.. 626. 
 
 46 & 47 Vict. c. 34, s. 3.. 443. 
 
 s. 6.. 399, 441.
 
 INDEX. 577 
 
 STATUTES— fw/ 1 in ucd. 
 
 51 & 52 Vict. c. 25 (Railway and Canal Traffic Act, 1888), 527. 
 s. 9.. 257, 281, 342. 
 8. 10.. 240. 
 8. 12.. 241. 
 8. 13.. 348. 
 s. 14. .311. 
 s. 25.. 238, 312, 438. 
 s. 27.. 339. 
 s. 28.. 343. 
 8. 29.. 345, 347. 
 8. 31.. 239. 
 8. 33.. 233, 235. 
 8. 34.. 234. 
 
 STOPPAGE IN TRANSITU, 
 when right arises, 108. 
 goods in transitu, although consigned to a carrier specially appointed by the 
 
 purchaser to receive them, 110. 
 if vendee takes goods out of carrier's possession before arrival at destination 
 
 the right to, at an end, 111. 
 tnmsitus at an end when carrier holds goods as consignee's agent or as 
 
 warehouseman, 112. 
 if carrier delivers goods to some person other than buyer or his agent transit 
 
 continues, 113. 
 when right of, determined, though goods in actual possession of carrier, 113. 
 right of, not defeated by a usage for can-iers to retain goods as a lien for a 
 
 general balance, 113. 
 can be effected by what notice to the carrier, 113. 
 carrier excused for non-delivery to consignee when he has received notice of, 
 
 114. 
 
 TERMINALS, 
 
 definition of, 242. 
 
 disputes as to, 24 1 . 
 
 what, may be charged for, 242. 
 
 what are " services incidental to the duty or business of a carrier," 243. 
 
 THIEVES. See Robbees. 
 
 THROUGH BOOKING, 182, 183, 307. 
 
 THROUGH RATES, 
 
 .statutory obligation to grant, 312. 
 must be required in public interest, 323. 
 route proposed mvist be a reasonable one, 326. 
 rule in apportioning tlu'ough rates, 328. 
 where company use, maintain, or work steam vessels, 328. 
 M. H 1'
 
 578 INDEX. 
 
 THROUGH TRAFFIC, 
 
 where company receiving, liable during whole transit of goods, 182. 
 carrying company liable as regards their own line, 185. 
 
 TICKET, RAILWAY, 
 
 effect of granting a, 452. 
 production of, 4G9. 
 travelling without, 465, 469. 
 cloak room ticket, 428. 
 
 TIME TABLES, 
 
 what promise publication of, amounts to, 453, 455. 
 
 words in, importing contract to use due attention to keep times specified in, 
 455. 
 
 TOBACCO SMOKING. See Smoking. 
 
 TOLLS. See Railway Rates and Chaeges. 
 
 TRAFFIC FACILITIES, 251. 
 
 TROOPS, 
 
 obligation on company to convey, 438. 
 statutory fares for, 439. 
 
 TROVER, 
 
 when carrier liable to action of, 87, 202. 
 
 TRUCKS, 
 
 company liable for defects in, 168. 
 
 of private traders, obligation of company as to, 172. 
 
 duty to examine foreign, 169. 
 
 obligation to cleanse, used for animals, 376. 
 
 for cattle must have spring buffers, 373. 
 
 for sheep freshly shorn, to be covered, 373. 
 
 UNDUE PREFERENCE, 
 
 common carrier not bound to charge all persons equally, 95. 
 statutory obligations on company to avoid, 333 — 347. 
 company may vary tolls if charged equally to all persons, 333. 
 provisions in a special Act relating to undue preference, 342. 
 where railway company carry by sea also, 343. 
 group rates, 345. 
 
 oomplaintof, by port or harbour authority or dock company, 347. 
 Commissioners may award damages in cases of, 348. 
 regard to be had to convenience of the pubhc and railway company, 319. 
 must be of a person similarly circumstanced with the complainant, 349. 
 company may charge for services in proportion to necessary cost, 350. 
 may carry at lower rate in consideration of a guarantee of large quantities or 
 full train loads, 350.
 
 INDEX. 5T9 
 
 UNDUE VELEEY.R-EiiC^-continucd. 
 
 when company can cany a longer distance at less cost may charge less than 
 
 for goods carried a less distance, 351. 
 customers engaging to employ other lines of company for other distinct 
 
 traffic, 352. 
 inequality of rates made for considerations collateral to pecuniary interests 
 
 of the company, 352. 
 competition alone will not justify a preference, 353. 
 company must not prefer themselves or agents to public and to earners other 
 
 than themselves, 355. 
 company bound to treat common cari-iers the same as other customers, 355. 
 company caimot charge for collection and delivery where such services not 
 
 performed by them, 356. 
 rebate oS. collection and delivery rate where service not j)erformed, 35G. 
 of one town or place over another town or place, 359. 
 where traffic favoui-ed and traffic prejudiced are not in same locality or 
 
 district, 359. 
 of one class of vehicles in station yards, 360. 
 company refusing credit or ledger account, 362. 
 
 UNPUNCTUALITY, 
 
 liability for, in case of goods traffic, 191, 193. 
 
 in case of passenger traffic, 453 — 462. 
 
 VENDOR AND VENDEE OF THE GOODS, 
 
 when delivery by vendor to can-ier amounts to a delivery to the vendee, 103. 
 
 when the carrier is the vendor's agent, 104. 
 
 the receipt of goods by a carrier not an acceptance within Statute of Frauds, 
 
 104. 
 when delivery of goods to a carrier to be conveyed to the purchaser has effect 
 
 of transferring ownership and risk to purchaser, 106. 
 vendor bound to take usual precautious for ensuring safe delivery to vendee 
 
 106. 
 when vendor's duty to deliver goods in merchantable condition complied 
 
 with, 107. 
 when purchaser refuses to receive goods from carrier, latter holds tliem as 
 
 agent of consignor, 107. 
 where goods lost through default of earner, consignee must sue, 108. 
 
 Sec Stoppage in Teansitu. 
 
 WAGGONS. See Teucks. 
 
 WAREHOUSEMEN, 
 
 bound only to ordinary diligence, 37, 38, 92, 219. 
 notice by carriers that tlicy holds goods as, 213. 
 
 by railway conipauy that they hold goods as, 213, 214. 
 earners receiving goods to await orders, 37, 38. 
 can'iers after fulfilling contract to carry may become, 82, 92, 211 2M.
 
 580 INDEX. 
 
 WKB.'EIiO^J^^EWm-continHed. 
 
 " goods to be left till called for," 82, 213. 
 
 of luggage deposited in cloak-room, 428. 
 
 when consignee cannot be found, 88. 
 
 goods destroyed by fire in warehouse, 38, 88, 219. 
 
 goods damaged by rats in warehouse, 54 
 
 by tackle out of order to crane them, 92. 
 carriers retaining goods as a lien for price of conveyance cannot charge for 
 warehousing, 101. 
 
 WAREHOUSING GOODS. See Warehousemen. 
 
 WEAR AND TEAR, 
 
 ordinary, carrier not liable for, 50, 165. 
 precautions to be used to lessen, 51, 54. 
 
 WEIGHING GOODS, 
 
 right of company to charge for, 246. 
 
 WILFUL MISCONDUCT, 
 
 negligence by carrier amounting to, 69, 77. 
 
 contract relieving against liability except upon proof of, 150, 162. 
 
 condition relieving against liability for loss, delay. Sec, unless due to wilful 
 
 misconduct of company's servants, 459. 
 what is not, 459. 
 
 WORDS, 
 
 "act of God," 43. 
 "gross negligence," 2. 
 "load," 243. 
 "loading," 244. 
 " providing covers," 245. 
 "reasonable time," 213. 
 "unload," 243. 
 ' ' unloading, " 244. 
 "value," 60. 
 
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 A. FoEBES, Esqrs., Barristers-at-Law. DemySvo. 1902. JS^'et, 17 s.6d. 
 "An eminently practical vfOTk."—Law Times. 
 
 COLLISIONS. — Marsden's Treatise on the Law of Collisions at 
 Sea. — Fifth Edition. By Reginald G. Maesdbn, Esq., Barrister- 
 at-Law. Royal 8vo. 190i. 11. 10s. 
 " The work constitutes a valuable and complete guide to the law of collisions 
 at sea." — Solicitors' Ji urnal. 
 
 CO M M I SS I O N .— Hart.— Tif^fi " Auctioneers." 
 
 COMMON LAW. — A. B. C. (The) Guide to the Practice of the 
 
 Supreme Court, 1905, with Diary for Aj^pointments, &c. By 
 
 Feancis a. Steingee, Esq. , of the Central Office of the Supreme 
 
 Court. Roy. Time. [Xrarhj ready.) Net, 5s. 
 
 Chitty's Forms, — Vide " Forms." 
 
 Elliott's Outlines of Common Law. — By Maetin Elliott, Esq., 
 
 Barrister-at-Law. Demy 8vo. 1898. 10s. Qd. 
 
 Pollock's The Expansion of the Common Law. — By Sir Feedk. 
 
 Pollock, Bart., D.C.L., Barrister-at-Law. DemySvo. 1904. 6,?. 
 
 '• Every student should read this last valuable addition to legal literatm'e." — 
 
 Law Tinifs, June 18, 1904. 
 
 "The lectures treat of the progress of the common law from early times with 
 an eloquence and a wealth of illustration which alone would make them f asciuating 
 reading for the student of law or historj^." — /-rnt' Jotir>inI, July 2, 1904. 
 
 Pollock and Wright's Possession in the Common Law, — 
 Parts I. and II. by Sir F. Pollock, Bart. , Barrister-at-Law. Part III. 
 by R. S. Weight, Esq., Barrister-at-Law. 8vo. 1888. 8«. 6rf. 
 
 Shirley. — Vide " Leading Cases." 
 
 Smith's Manual of Common Law. — For Practitioners and Students. 
 Comprising the Fundamental Principles, with useful Practical Rules 
 and Decisions. Eleventh Edition. By C. Spueling, Esq., Barrister- 
 at-Law. Demy8vo. 1898. 15s. 
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 119 & 120, CHANCERY LANE, LONDON, "W.O. 5 
 
 COMPANY LAW,— Goirand.— 7'/V7f "Frencli Law." 
 
 Hamilton's Manual of Company Law, By W. F. Hamilton, Esq., 
 LL.D., K.C. Second Edition. By the Author, assisted by Peect 
 TiNDAL-RoBERTSON, Esq.,Barrister-at-Law. DemySvo. 1901. H. Is. 
 
 " A sound and eminently useful manual of company law." — Solicitors' Journal. 
 
 Palmer's Company Law. — A Practical Handbook for Lawyers and 
 
 Business Men. With an Appendix containing the Companies Acts, 
 
 1862 to 1900, and Rules. Fourth Edition. By Francis Beatifoet 
 
 Paxmee, Esq.. Barrister-at-Law. Royal 8vo. 1902. 12s. Gd. 
 
 " Palmer's ' Company Law ' is one of the most useful and convenient text- 
 books on the practitioner's bookshelf." — Law Times. 
 
 " A marvel — for eleamess, fulness, and accuracy." — Law Notes. 
 
 " Of especial u,se to students and business men who need a clear exposition by 
 a master hand." — Imvi Joumnl. 
 
 " The subject is dealt with in a clear and comprehensive manner, and in such 
 a way as to be intellip-ible not only to lawyers but to others to whom a knowledge 
 of Company Law may be essential." — Law Students' Journal. 
 
 " AH the principal topics of company are dealt with in a substantial manner, 
 and the whole of the Statute Law — an indispensable adjimct — is collected in 
 an appendix. Pei'haps what practising lawyers and business men will 
 value most is the precious quality of practicality."— ^^"jf Quarterly Review. 
 
 "Popular in style, also accurate, with suflSciont references to authorities to 
 make the book useful to the practitioner." — The Times. 
 
 Palmer's Companies Act, 1900, with Explanatory Notes, and 
 
 Appendix containing Prescribed and other Forms, together with 
 Addenda to "Company Precedents." Second Edition. By Feancis 
 Beatjfoet Palmee, Esq., Barrister-at-Law. Royal Svo. 1901. 7s.6d. 
 " It is essentially a book that all interested in companies or company law 
 should procure." — Law Times. 
 
 Palmer's Company Precedents. — 
 
 Part I. GENERAL FORMS. 
 
 Promoters, Prospectuses, Underwrituig, Agreements, Memoranda 
 and Articles of Association, Private Companies, Employes' Benefits, 
 Resolutions, Notices, Certificates, Powers of Attorney, Banking and 
 Advance Securities, Petitions, Writs, Pleadings, Judgments and 
 Orders, Reconstruction, Amalgamation, Special Acts. With Copious 
 Notes and an Appendix containing the Acts and Rules. Eighth 
 Edition. By Francis Beaueoet Paxmee, Esq., Barrister-at-Law, 
 assisted by the Hon. Chaeles Macnaghten, K.C., and Feank Evans, 
 Esq., Barrister-at-Law. Royal Svo. 1902. 1/. 16*. 
 
 " Despite his many competitors, Mr. Palmer 
 
 ' Holds solely sovereifrn sway and masterdom,' 
 and he does so by reason of his thoroughness, his practical good sense, and his 
 familiarity with the business as well as the legal side of his subject." — Law 
 Quarterly lleview. 
 
 "Mr. Palmer's works on Company Law are all beyond criticism. He knows 
 more of the subject than, perhaps, any other member of the legal profession. — 
 Law Mn'jnzine. 
 
 " No company lawyer can afford to be without it." — Law Journal. 
 
 Part II. WINDING-UP FORMS AND PRACTICE. 
 
 Compulsory Winding-Up, Voluntary Winding-Up, Winding-Up 
 under Supervision, Arrangements and Compromises, with Copious 
 Notes, and an Aj^pendix of Acts and Rules. Ninth Edition. 
 By Feancis Beaufoet Palmee, assisted by Feank Evans, Esqrs., 
 Barristers-at-Law. Royal 8vo. 1904. 1/. 12a. 
 
 "The book j>ar excellence for practitioners. There is nothing we can think of 
 which should be within the covers which we do not find."— /.au' Journal. 
 
 Part III. DEBENTURES AND DEBENTURE STOCK. 
 
 Debentures, Trust Deeds, Stock Certificates, Resolutions, Prospectuses, 
 Writs, Pleadings, Judgments, Orders, Receiverships, Notices, Mis- 
 cellaneous. With Copious Notes. Ninth Edition. By Feancis Beatj- 
 EOET Palmer, Esq., Barrister-at-Law. Royal Svo. 1903. '2ihs. 
 
 " The result of much careful study Simply invaluable to debenture- 
 holders and to the legal advisers of siich investors." — Financial Xi7vs. 
 
 ". . . . Must take front rank among the works on the subject." — Law Times. 
 
 •»* All standard Law Works are kept in Stock, in law calf a}id ot/ter bindings.
 
 STEVENS AKD SONS, LIMITED, 
 
 CO M PA NY LAW— cotitinucd. 
 
 Palmer's Private Companies and Syndicates, their Formation and 
 Advantages ; being a Concise Popular Statement of the Mode of Con- 
 verting a Business into a Private Company, and of establishing and 
 working Private Companies and Syndicates for Miscellaneous Pur- 
 poses. Nineteenth Edition. By F. B. Paimbe, Esq., Barrister-at- 
 Law. 12mo. 1904. JVei, Is. 
 
 Palmer's Shareholders, Directors, and Voluntary Liquidators' 
 Legal Companion, — A Manual of Every-day Law and Practice for 
 Promoters, Shareholders, Directors, Secretaries, Creditors, Solicitors, 
 and Voluntary Liquidators of Companies under the Companies Acts, 
 1862 to 1900, with Appendix of useful Forms. Twenty-second Edit. 
 ByF. B.Pajlmee, Esq.,Barrister-at-Law. 12mo. 1903. Mi,2s.6d. 
 
 COMPENSATION.— Cripps' Treatise on the Principles of the 
 Law of Compensation. Fourth Edition. By C. A. Cetpps, Esq., 
 K.C. Royal 8vo. 1900. 11. bs. 
 
 "Mr. Cripps' book is recognized as one of the best. . . . There are few men 
 whose practical knowledge of the subject exceeds that of the learned author." — 
 Law Quarterly Sevieiv. 
 
 COMPOSITION DEEDS.— Lawrance.— ri<?e " Banlmiptcy." 
 
 CONDITIONS OF SALE.— Farrer — Vide " Vendors & Purchasers." 
 Webster. — Vide "Vendors and Purchasers." 
 
 CONFLICT OF LAWS.— Dicey's Digest of the Law of England 
 with reference to the Conflict of Laws. — By A. V. Dicey, Esq., 
 K.C, B.C.L. With Notes of American Cases, by Professor Mooee. 
 Eoyal 8vo. 1896. Ket, 11. 10s. 
 
 CONSTITUTION.— Anson's Law and Custom of the Constitution. 
 By Sir William R. Anson, Bart., Barrister-at-Law. Demy 8vo. 
 Part I. Parliament. Third Edition. 1897. 12«. 6d. 
 
 Part II. The Crown. Third Edition. {In the press.) 
 
 CONTRACT OF SALE.— Blackburn.— Ftt^e "Sales." 
 Moyle's Contract of Sale in the Civil Law. — By J. B. Motlb, 
 Esq., Barrister-at-Law. 8vo. 1892. 10s. 6d. 
 
 CONTRACTS,— Addison on Contracts,— A Treatise on the Law of 
 Contracts. Tenth Edition. By A. P. Peeceval Keep and William 
 E. Gordon, Esqrs., Barristers-at-Law. Royal 8vo. 1903. 21. 2s. 
 
 " Essentially the practitioner's text-book." — Law Journal. 
 " Among all the works on Contracts, there is none more useful to the practi- 
 tioner than Addison." — Law Times. 
 
 Anson's Principles of the English Law of Contract. — By Sir 
 
 W.R.Anson, Bart., Barrister-at-Law. Tenth Edit. 1903. 10s. 6d. 
 Fry. — Vide *' Specific Performance." 
 
 Leake's Law of Contracts.— Principles of the Law of Contracts. 
 By the late S. Maetin Leake. Fourth Edition. By A. E. Randall, 
 Esq., Barrister-at-Law. Royal 8vo. 1902. 32s. 
 
 " The hig-h standard attained in the former issues has been well sustained, 
 and the work carefully revised and brought well up to d ite." — Law Timea. 
 
 "A full and reliable guide to the principles of the English Law of Contract 
 .... this edition will fully maintain the reputation which the book has made 
 for itself." — Law Journal. 
 
 " Admirably suited to serve the purpose of the practitioner .... the work 
 is complete, accurate, and easy of reference." — Solicitors' Journal. 
 
 Pollock's Principles of Contract.— A Treatise on the General 
 Principles concerning the Validity of Agreements in the Law of 
 England. Seventh Edition. By Sir Feedeeiok Pollock, Bart., 
 Barrister-at-Law, Author of " "The Law of Torts," "Digest of the 
 Law of Partnership," &c. Demy 8vo. 1902. II. 8s. 
 
 " A work which, in our opinion, shows great ability, a discerning intellect, a 
 comprehensive mind, and painstaking industry." — Law Journal. 
 
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 119 & 120, CHANCEET LANE, LONDON, W.O. 
 
 CONVEYANCING— Brickdale & She\don.— Vide "Land Transfer." 
 Dickins' Precedents of General Requisitions on Title, with Ex- 
 planatory Notes and Observations. Second Edition. By Heebeet 
 A. Dickins, Esq., Solicitor. Royal 12mo. 1898. 6s. 
 
 " We cannot do better than advise every lawyer with a conveyancing practice 
 to purchase the little book and place it on his shelves forthwith." — Law Notes. 
 Farrer, — Vide " Vendors and Purchasers." 
 
 Greenwood's Manual of the Practice of Conveyancing. To 
 ■which are added Concise Common Eonns in Conveyancing. — Ninth 
 Edition. Edited by Haeet Geeeitwood, M.A., LL.D., Esq., 
 Barrister-at-Law. Roy. 8vo. 1897. 11. 
 
 •' We should like to see it placed by his principal in the hands of every articled 
 clerk. One of the most useful practical works we have ever Been."— Law Stu. Jo. 
 
 Hood and Challis'Conveyancing,Settled Land,and Trustee Acts, 
 
 and other recent Acts affecting Conveyancing. With Commentaries. 
 Sixth Edition. By Peecy F. Wheelee, assisted by J. I. Stielino, 
 Esqrs., Barristers-at-Lavr. Royal 8vo. 1901 . 11. 
 
 "This is the best collection of conveyancing statutes with which we are 
 acquainted. . . . The excellence of the commentaries which form part of this 
 book is so well known that it needs no recommendation from us."— Law Journal. 
 
 Jackson and Gosset's Precedents of Purchase and Mortgage 
 Deeds.— By W. Howland Jackson and Thoeold Cosset, Esqrs., 
 Barristers -at -Law. Demy 8vo. 1899. 7s. Gd. 
 
 "Not the least merit of the collection is that each Precedent is complete in 
 itself, so that no dipping about and adaptation from other parts of the book are 
 necessary." — Law Journal, 
 
 Prideaux's Precedents in Conveyancing— With Dissertations on 
 its Law and Practice. 19th Edition. By John Whitcombe and 
 Benjamin Lennaed Cheeet, Esqrs., Barristers-at-Law. 2 vols. 
 Royal 8vo. 1904. {Headi/ in October.) 31. 10*. 
 
 " ' Prideaux ' is the best work on Conveyancing." — Law Journal. 
 "Accurate, concise, clear, and comprehensive in scope, and we know of no 
 treatise upon Conveyancing which is so generally useful to the practitioner."— 
 Law Times. 
 
 Strachan's Practical Conveyancing. By Waxtee Steachan, Esq., 
 Barrister-at-Law. Royal 12mo. 1901. 8s. &d. 
 
 Webster. — Vide "Vendors and Purchasers." 
 
 CORONERS.— Jervis on Coroners.— The Coroners Acts, 1887 and 
 1892. With Forms and Precedents. Sixth Edition. By R. E. 
 Melsheimee, Esq., Barrister-at-Law. Post 8vo. 1898. 10«. &d. 
 
 COSTS.— Hough's Handy Guide to County Court Costs.— Con- 
 taining the Scales of Costs and Fees authorized in County Courts ; 
 with useful Precedents of Bills of Costs on Ordinary and Default 
 Summonses, Employers' Liability, Companies Winding Up, Re- 
 mitted Actions, G-amishee, Interpleader, Admiralty, and other pro- 
 ceedings, also extracts from the County Coiu-t Act, 1888, the Rules, 
 with Practice Notes and Notes of Decisions ; together with extracts 
 from the Workmen's Compensation Act, the Rules and Precedents 
 of Bills of Costs thereunder, and of Costs of Appeal from the County 
 Court. Third Edition. By A. Peecy Hough, Law Accountant and 
 Costs Draftsman. Demy 8vo. 1903. 12s. Qd. 
 
 " This edition will be very acceptable to practitioners in the county courts." 
 — Law Journal. 
 
 Johnson's Bills of Costs in the High Court of Justice and Court of 
 Appeal, in the House of Lords and the Privy Council. Proceedings 
 in the County Court and the Mayor's Courts, &c. Conveyancing 
 Costs and Costs between Solicitors and their Clients ; with Orders 
 and Rules as to Costs and Court Fees, and Notes and Decisions 
 relating thereto. By Horace Maxwell Johnson, Esq., Barrister- 
 at-Law. Second Edition. Royal 8vo. 1901. li'. 15s. 
 Webster's Parliamentary Costs.— Private Bills, Election Petitions, 
 Appeals, House of Lords. Fourth Edition. ByC. Cavanaqh, Esq., 
 Barrister-at-Law. Post Svo. 1881. H, 
 *»* All standard Law JForks ar$ kept in Stock, in law calf and other bindings.
 
 STEVENS AND SONS, LIMITED, 
 
 COUNTY COURTS.— The Annual County Courls Practice, 1905. 
 By His Honour Judge SsnrLY, K.C., assisted by W. J. Beooks, Esq., 
 Barrister-at-Law. 2 vols. Demy 8vo. {lleadi) in Decctiiber.) \l.5s. 
 *^* A thin paper edition in 1 Vol. may be had, price 25s. 
 •' Invaluable to the County Court practitioner."— /^jtw Journal. 
 Hough's County Court Costs,— Ti* " Costs." 
 COVENANTS,— Hamilton's Concise Treatise on the Law of 
 Covenants.— Second Edition. By G. Baldwin Hamilton, Esq., 
 Barrister-at-Law. Demy 8vo. 1904. 10*. Qd. 
 
 CRIMINAL LAW.— Archbold's Pleading, Evidence and Practicein 
 Criminal Cases, — With the Statutes, Precedents of Indictments, &c. 
 Twenty-second Edition. By William F. Ceaies and Gut Stephen- 
 son, Esqrs.. Barristers-at-Law. Demy 8vo. 1900. IZ. lis. 6rf. 
 " ' Archbold ' is the one indispensable hook for every barrister or solicitor who 
 practises regularly in the criminal Coiu'ts." — Solicitors^ Journal. 
 Bowen-Rowlands, — Vide "Indictments." 
 
 Chitty's Collection of Statutes relating to Criminal Law.— (Re- 
 printed from ' ' Chitty' s Statutes. ' ' ) With an Introduction and Index. 
 By W. F. Ceaies, Esq., Barrister-at-Law. Royal 8vo. 1894. 10s. 
 Disney and Gundry's Criminal Law,— A Sketch of its Principles 
 and Practice. By Heney W. Disney and Haeold Gundey, Esqrs., 
 Barristers-at-Law. Demy 8vo. 1896. 7s. &d. 
 
 Kenny's Outlines of Criminal Law, Demy 8vo. 1902. 10s. 
 
 Kenny's Selection of Cases Illustrative of English Criminal 
 Law,— Demy 8vo. 1901. \2s. Qd. 
 
 Kershaw's Brief Aids to Criminal Law.— With Notes on the Pro- 
 cedure and Evidence. By Hilton EIeeshaw, Esq., Barrister-at- 
 Law. Royal 12mo. 1897. 3s. 
 Roscoe's Digest of the Law of Evidence in Criminal Cases. — 
 Twelfth Edition. By A. P. Peeceval Keep, Esq., Barrister-at- 
 Law. Demy 8vo. 1898. 1/. lis. 6<f. 
 "To the criminal lawyer it is his guide, philosopher and friend. What 
 Eoscoe says most judges will accept without question." — Law Times. 
 
 Russell's Treatise on Crimes and Misdemeanors.— Sixth Edit. 
 By Hoeace Smith, Esq., MetropoUtan PoUce Magistrate, and A. P. 
 Peeceval Keep, Esq. 3 vols. Roy. 8vo. 1896. bl.\bs.&d. 
 
 " No library can be said to be complete without Eussell on Crimes." — Law Times. 
 " Indispensable in every Court of criminal justice." — The Times. 
 Shirley's Sketch of the Criminal Law. — Second Edition. ByCnABLES 
 Stephen Huntee, Esq., Barrister-at-Law. DemySvo. 1889. 7s. 6d. 
 Warburton. — Vide " Leading Cases." 
 DEATH DUTIES.— Freeth's Acts relating to the Estate Duty and 
 other Death Duties, with an Appendix containing the Rules 
 Regulating Proceedings in England, Scotland and Ireland in Appeals 
 under the Acts and a List of the Estate Duty Forms, with copies of 
 some which are only issued on Special Application. Third Edition. 
 By Evelyn Feeeth, Esq., Registrar of Estate Duties for Ireland, 
 formerly Deputy-Controller of Legacy and Succession Duties. 
 Demy8vo. 1901. 12s. 6a. 
 
 " The official position of the Author renders his opinion on questions of proce- 
 dure of great value, and we think that this book will be found very useful to 
 solicitors who have to prepare accounts for duty." — Solicitors' Journal. 
 
 Harman's Finance Act, 1894, and the Acts amending the same 
 so far as they relate to the Death Duties, and more espe- 
 cially to Estate Duty and Settlement Estate Duty, With an 
 Introduction and Notes, and an Appendix. By J. E. Haeman, Esq., 
 Barrister-at-Law. Second Edition. Roy. 12mo. 1903. 6s. 
 
 " Can be recommended as a reliable guide to an Act which depends to a great 
 extent on the definitions of its expressions." — Law Qi/artf-rly Review. 
 
 DEBENTURES AND DEBENTURE STOCK.— Palmer.— Hrfe 
 
 " Company Law." 
 DECISIONS OF SIR GEORGE JESSEL— Peter's Analysis and 
 
 Digest of the Decisions of Sir George Jessel ; with Notes, &c. 
 
 By Apsley Petee Petee, Solicitor. Demy 8vo. 1883. 16*. 
 
 *,* A U standard Law Works are kept in Stock, in law calf and other bindings.
 
 119 & 120, CHANCERY LANE, LONDON, W.C. 9 
 
 DIARY. — Lawyers' Companion (The) and Diary, and London and 
 Provincial Law Directory for 1905, — For the use of the Legal 
 Profession, Public Companies, Justices, Merchants, Estate Agents, 
 Auctioneers, &c., &c. Edited by Edwin Latman, Esq., Barrister-at- 
 Law ; and contains Tables of Costs in the High Court of Judicature 
 and County Court, &c. ; Monthly Diary of County, Local Government, 
 and Pari.sh Business ; Oaths in Supreme Court ; Summary of Sta- 
 tutes of 1904 ; Alphabetical Index to the Practical Statutes since 1820 ; 
 Schedule of Stamp Duties ; Legal Time, Interest, Discount, Income, 
 Wages and other Tables ; the New Death Duties ; and a variety of 
 matters of practical utility : together with a complete List of theEnglish 
 Bar, and London and Country Solicitors, with date of admission and 
 appointments. Published Ajtntjat.TiY. Fifty-ninth Issue. 1905. 
 Issued in the following forms, octavo size, strongly boimd in cloth : — 
 
 1. Two days on a page, plain ....... bs.Od. 
 
 2. The above, inteeleaved with plain paper . . . .70 
 
 3. Two days on a page, ruled, with or without money columns . 5 6 
 
 4. The above, with money columns, djteeleavkd with plain paper 8 
 6. Whole page for each day, plain . . . . . .76 
 
 6. The above, inteeleaved with plain paper . . . .96 
 
 7. Whole page for each day, ruled, with or without money columns 8 6 
 
 8. The above, inteeleaved with plain paper . . . 10 6 
 
 9. Three days on a page, ruled blue lines, without money columns . 3 6 
 The JJiary contains memoranda of Legal Business throughout the Tear, with 
 
 an Index for ready reference. 
 
 " The legal Whitaker." — Saturdaij Review. 
 
 " The amount of information packed within the covers of this well-kno'wn 
 book of reference is almost incredible. In addition to the Diary, it contains 
 nearly 800 pages of closely printed matter, none of which could be omitted vrithout, 
 perhaps, detracting from the usefulness of the book. The publishers seem to 
 have made it their aim to include in the Companion every item of information 
 ■which the most exacting lawyer could reasonably expect to find in its pages, and it 
 may safely be said that no practismg solicitor, who has experienced the luxury of 
 havina- it at his elbow, 'will ever be likely to try to do ■without iX."—Lau< Journal. 
 
 DICTIONARY,— Stroud s Judicial Dictionary, or Interpreter of 
 Words and Phrases by the British Judges and Parliament, — 
 Second Edition. By F. Steoud, Esq., Barrister-at-Law. 3 vols. 
 Eoy. 8vo. 1903. 4/. 4«. 
 
 Note. — It is believed this work is unique. It had no predecessor and 
 has no rival ; it differs entirely from the Law Lexicons of Wharton and 
 Sweet. It is a Dictionnnj of the English Langiiage (in its phrases as 
 well as single words), so far as that language has received interpre- 
 tation by the British Judges and Parliament from the earliest times 
 to the end of the nineteenth century. 
 
 " Must find a place in every law libraiy. It is difficult to exaggerate its use- 
 fulness. ... is invaluable, not only as a labour-saving machine, but as a real 
 contribution to legal literature. ... a standard classic of the law." — Law Journal. 
 
 " An authoritative dictionary of the English language."— /-aw Times. 
 
 "This judicial dictionai-j' is pre-eminently a ground from which may be ex- 
 tracted suggestions of the gi-eatest utility, not merely for the advocate in court, 
 but also for the practitioner who has to advise." — Solicitors' Jourtml. 
 
 The Pocket Law Lexicon. — Explaining Technical Words, Phrases 
 and Maxims of the English, Scotch and Roman Law. Third Edition. 
 By Heney G. Rawson and James F. Remnant, Esqrs., Barristers- 
 at-Law. Fcap. 8vo. 1893. 6*. Qd. 
 
 " A wonderful little legal Dictionary." — Indermnur's Laiv Students' Journal. 
 Wharton's Law Lexicon. — Forming an Epitome of the Law of Eng- 
 land, and containing full Explanations of Technical Terms and 
 Phrases, both Ancient and Modem, and Commercial, with selected 
 Titles from the Civil, Scots and Indian Law. Tenth Edition. 
 With a New Treatment of the Maxims. By J. M. Lelt, Esq., 
 Barrister-at-Law. Super-royal 8vo. 1902. 1/. 18s. 
 
 "An encyclopaedia of the law." 
 
 "The new edition seems to us to be verj- complete and perfect, and a copy 
 of it should be procured bv every practising solicitor ■without delay. A better 
 value for his money in the law book market a practitioner could not, we are sure, 
 get. Of the many book s we have to ri'fer to in our work no volume is, we believe, 
 more often taken down from the shelf than ' Wharton.' " — Low Xotes. 
 *,* All standard Law Works are kept in Stock, in law calf and other bindings.
 
 10 STEVENS AND SONS, LIMITED, 
 
 DIGESTS, 
 MEWS' DIGEST OF ENGLISH CASE LAW.— Containing the Reported 
 Decisions of the Superior Courts, and a Selection from those of the 
 Irish Courts, to the end of 1897. (Being a New Edition of ' ' Fisher's 
 Common Law Digest and Chitty's Equity Index.") Under the general 
 Editorship of John Mews, Barrister-at-Law. 16 vols. Eoy. 8vo. £20 
 {Bound in half calf, gilt top, £3 net extra.) 
 " A vast undertaking. . . . Wfe have tested several parts of the work, with the 
 result of confirming our impression as to the accuracy of a work which is indis- 
 pensable to la^vyers." — The Thnes. 
 
 The Annual Digest forl898, 1899,1900,1901,1902 and 1903 
 By John Mews, Esq., Barrister-at-Law. Royal Svo. each 15*. 
 
 %* This Digest is also issued quarterly, each part being cumulative. 
 Price to Subscribers, for the four parts payahle in advance, net lis. 
 " The practice of the law without Mews' Annual would be almost an impos- 
 sibility." — Law Times. 
 
 Mews' Digest of Cases relating to Crinninal Law down to the 
 end of 1897.— By John Mews, Esq., Barrister-at-Law. Royal 
 Svo. 1898. i;. OS. 
 
 Law Journal Quinquennial Digest, 1896-1900.— An Analytical 
 Digest of Cases Published in the Law Journal Reports, and the Law 
 Reports, during the years 1896-1900, with references to the Statutes 
 passed during the same period. By Jaiies S. Hendeeson, Esq., 
 Barrister-at-Law. 1901. \l. lOs. 
 
 Woods and Ritchie's Digest of Cases, Overruled, Approved, or 
 otherwise specially considered in the English Courts to the 
 end of 1902: with Extracts from the Judgments dealing -with the 
 same. By W. A. G. Woods and J. Ritchie, Esqrs., Barristers-at- 
 Law.— Being a New Edition of "Dale and Lehmann's Digest." 
 2 Vols. Royal Svo. [In the press.) 
 
 DISCOVERY.— Bray's Digest of the Law of Discovery, with 
 Practice Notes.— By Edwaed Beat, Esq., Barrister-at-Law. 
 Demy Svo. 1904. Xet, 3s. 
 
 DISTRESS.— Oldham and Foster on the Law of Distress.— A 
 Treatise on the Law of Distress, with an Appendix of Forms, Table 
 of Statutes, &c. Second Edition. By Aethtje Oldham and A. La 
 TeobeFostee, Esqrs., Barristers-at-Law. Demy Svo. 1889. 18s. 
 
 DISTRICT COUNCILS.— Chambers' Digest of the Law relating 
 to District Councils, so far as regards the Constitution, Powers 
 and Duties of such Councils (including Municipal Corporations) in 
 the matter of Public Health and Local Government. Ninth Edition. 
 — By G. F. Chambees, Barrister-at-Law. Royal Svo. 1895. 10s. 
 
 DIVORCE.— Browne and Powles' Law and Practice in Divorce 
 and Matrimonial Causes. — Sixth Edition. ByL. D.Powxes, Esq., 
 Barrister-at-Law. Demy Svo. 1S97. 1^. 5s. 
 
 "The practitioner's standard work on divorce practice." — Law Quar. Rev. 
 
 DOMESDAY BOOK AND BEYOND.— Three Essays in the Early 
 
 History of England.— By Professor Maitland. 1897. Svo. 15s. 
 
 EASEMENTS.— Goddard's Treatise on the Law of Easements. — 
 
 By John Letbouen Goddaed, Esq., Baorrister-at-Law. Sixth 
 
 Edition. Demy Svo. 1904. \l. 5s. 
 
 " 'We can cordially recommend the work to those of our readers in search of 
 an up-to-date authority. ''^i«w Students' Journal. 
 
 "Nowhere has the subject been treated so exhaustively, and, we may add, 
 80 scientifically, as by Mr. Goddard. We recommend it to the most carefiil study 
 of the law student, as weU as to the library of the practitioner."— Law Times. 
 Innes' Digest of the Law of Easements.— Seventh Edition. By 
 L. C. Innes, lately one of the Judges of Her Majesty's High Court 
 of Judicature, Madras. Royal 12mo. 1903. Ts. Qd. 
 
 "An accurate and compendious statement of the law of easements, and will 
 consequently be of much use to students."— £«!« Notes. 
 
 " In 120 pages there is a useful digest, brought well up to date by copious 
 references to the cases." — Lnw Times. 
 
 "This presents the law in a series of clearly emmciated propositions, ■which 
 are supported by examples taken in general from decided cases. The subject is 
 one that rradily lends itself to such ti-eatment, and in Ml-. Innes' hands it is 
 skilfully developed."— &?ici7o;-s' Journal. 
 
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 E AS E M E N TS— continued. 
 
 Roscoe's Easement of Light. — A Digest of the Law relating 
 to the Easement of Light. — With an Historical Introduction, 
 and an Appendix containing Practical Hints for Architects and 
 Surveyors, Observations on the Right to Air, Statutes, Forms 
 and Plans. Fourth Edition. By Edwaed Stanley Roscoe, Esq., 
 Barrister- at-Law, Admiralty Registrar of the Supreme Court, 
 Author of "A Digest of Building Cases," " Admiralty Practice," 
 &c. Demy 8vo. 1901. 7s. Gd. 
 
 "This edition appears to be scrupulously accurate, and quite up to date." — 
 Law Siiidi'nts' Jour/iril. 
 
 " A most useful httle work." — L"w Journal. 
 
 " A clear and practical digest of the law." — Law Times. 
 
 " An accurate difjest of the law." — Law Notes. 
 
 ECCLESIASTICAL LAW.— Phillimore's Ecclesiastical Law of the 
 Church of England, By the late Sir Robeet Phillimore, Bart., 
 D.C.L. Second Edition, by his son Sir Walter George Frank 
 Phillimoee, Bart., D.C.L., assisted by C. F. Jemmett, B.C.L., 
 LL.M., Barrister-at-Law. 2 vols. Royal 8vo. 1895. 3/. 3s. 
 
 " Tlic task of re-cditing Phillimore's ' Ecclesiastical Law ' was not an easy one. 
 Bir Walter Phillimore has executed it with brilliant success. He has broug-ht to 
 the work all liis father's subdued enthusiasm for the Church, he has omitted 
 nothing that lent value to the original treatise, he has expunged from it what 
 could he spared, and has added to it everything that the ecclesiastical lawyer 
 can possibly need to know." — Law Journal. 
 
 Whitehead's Church Law. — Being a Concise Dictionary of Statutes, 
 Cajions, Regulations, and Decided Cases affecting the Clergy and 
 Laity. Second Edition. By Benjamin Whitehead, Esq., Barrister- 
 at-Law. DemySvo. 1899, 10s. 6rf. 
 
 " A perfect mine of learning on all topics ecclesiastical." — Vaib/ Telegraph. 
 
 " Mr. Whitehead has amassed a great deal of information which it would be 
 very difficult to find in any other book, and he has presented it in a clear and con- 
 cise form. It is a book which will be useful to lawyers and laymen." — Law Times. 
 
 ELECTIONS.— Day's Election Cases in 1892 and 1893.— Being a 
 Collection of the Points of Law and Practice, together -with Reports 
 of the Judgments. By S. H. Day, Esq., Barrister-at-Law, Editor 
 of "Rogers on Elections." Royal 12mo. 1894. 7s. Gd. 
 
 Hedderwick's Parliamentary Election Manual ; A Practical 
 Handbook on the Law and Conduct of Parliamentary Elections 
 in Great Britain and Ireland, designed for the Instruction and 
 Guidance of Candidates, Agents, Canvassers, Volunteer Assistants, 
 &c. Second Edition. By "r. C. H. Heddeewicz, Esq., BarrLster-at- 
 Law. Demy 12mo. 1900. 10?. Gd. 
 
 " The work is pre-eminently practical, concise and clear." — Solicitors^ JnumaU 
 " One of the best books of the kind that we are acquainted with." — Law Journal. 
 
 Hunt's Metropolitan Borough Councils Elections: A Guide to 
 the Election of the M.ayor, Aldermen, and Councillors of Metropolitan 
 Boroughs. By John Hunt, Esq., Bar.-at-Law. DemySvo. 1900. 3s.6rf. 
 
 Rogers' Law and Practice of Elections. — 
 
 Vol. I. Registration, including the Practice in Registration 
 Appeals; Parliamentaiy, Municipal, and Local Government; with 
 Appendices of Statutes, Orders in Council, and Forms. Sixteenth 
 Edition ; with Addenda of Statutes to 1900. By Maueioe Powell, 
 Esq., Barrister-at-Law. Royal 12mo. 1897. \l. Is. 
 
 " The practitioner will find within these covers everything which he can be 
 expected to know, well arranged huiI carefully stated." — Law Times. 
 
 Vol. II. Parliamentary Elections and Petitions ; with Appen- 
 dices of Statutes, Rules and Forms. Seventeenth Edition. Revised by 
 S. H. Day, E.sq., Barrister-at-Law, Royal r2mo. 1900. H. Is. 
 
 " The acknowledged authority on election law." — Law Journal. 
 
 "The leading book on the difficult subjects of elections and election peti- 
 tions." — Law Times. 
 
 " We have nothing but praise for this 'Work as a trustworthy guide for candi- 
 dates and agents." — Solicitors' Journal. 
 
 *»* All standard Law Works are kept in Stock, hi law calf and other bindings. 
 
 b2
 
 12 STEVENS AND SONS, LIMITED, 
 
 ELECTIONS.— Rogers' Law and Practice of E\eci'\ons— continued. 
 
 VoL III. Municipal and othee Elections and Petitions, with 
 
 Appendices of Statutes, Rules, and Forms. Seventeenth Edit. By 
 
 Saiiuel H. Day, Esq., Barrister-at-Law. Royal 12mo. 1894. U. U. 
 
 EMPLOYERS' LIABILITY.— Mozley-Stark.— n^^e "Arbitration." 
 Robinson's Employers' Liability. By Aethtje Robenson, Esq., 
 Barrister-at-La\v. Second Edition. Including Precedents of 
 Schemes of Compensation, certified by the Registrar of Friendly 
 Societies. By the Author and J. D. Stuaet Snr, Esq., Barrister- 
 at-Law, Assistant Registrar of Friendly Societies. Royal r2mo. 
 1S98. 7,. Qd. 
 
 ENGLISH LAW.— Brown's Study of the Law.— By W. Jetheo 
 BKOWN,LL.D.,Esq.,Barrister-at-Law. Royal Svo. 1902. Xet,'2.s.6d. 
 Pollock and Maitland's History of English Law before the time 
 of Edward I.— By Sir Feedeeick Pollock, Bart., and Feed. W. 
 Maitland, Esq., Barristers-at-Law. Second Edition. 2 vols. roy. 
 Svo. 1898. 21. 
 
 ENGLISH REPORTS. Re-issue of all Decisions prior to 1866. 
 To be completed in about 150 Volumes, issued monthly. 
 
 First Series: House of Lords. 58 Vols, complete in 11 Vols. Royal 
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 Second Series: Privy Council. 43 Vols, complete in 9 Vols. Half- 
 bound. J^r^t, 131. lOs. 
 
 Third Series : Chancery. Now publishing. Half-bound. Vols. 1 to 24 
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 *** The Volumes are not sold separately. Prospectus on application. 
 "This excellent series."— Lrnv Journal. 
 
 "We can speak unhesitatin<jly of the advantag'e to the lawyer of the posses- 
 sion of this excellent reprint of all the English repoits."— Solicitors' Journal. 
 EQ[J\TY, and Ttcf* CHANCERY. 
 Seton's Forms of Judgments and Orders in the High Court of 
 Justice and in the Court of Appeal, having especial reference to 
 the Chancery Division, with Practical Notes. Sixth Edition, with 
 references to the Seventh Edition of Daniell's Chancery Practice, and 
 the Fifth Edition of Daniell's Chancery Forms. By Cecil C. M. 
 Dale, Esq., Barrister-at-Law, W. Tindal King, Esq., a Regis- 
 trar of the Supreme Court, and W. O. Goldschmldt, Esq., of the 
 Registrars' Office. In 3 vok. Royal Svo. 1901. 6^. 6«. 
 
 "A monirment of learned and laborious accuracy." — Law Quarterly Beview. 
 "The new elition of 'Seton' is from every point of view, indeed, a most 
 valuable and indispensable work, and well worthy of the book's high reputation." 
 — Law Journal. 
 
 Smith's Manual of Equity Jurisprudence.— A Manual of Equity 
 Jurisprudence for Practitioners and Students, founded on the Works 
 of Story and other writers, comprising the Fimdamental Principles 
 and the points of Equity usually occurring in General Practice. 
 Fifteenth Edition. By Sydney E. Williams, Esq., Barrister-at- 
 Law. Demy Svo. 1900. 12«. Qd. 
 " "We can s-afely recommend ' Smith's Equity' in its new clothes to the atten- 
 tion of students readin;? for their Examinations." — Law Notes. 
 
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 trated by the Leading Decisions thereon. For the use of Students 
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 edition has been brought up to date in a way Mhich should also make it useful to 
 practitioners in search of the latest authorities on any given point. . . . The 
 additional cases refeiTed to in the text and notes amount to many hundreds."— 
 Low Journal. 
 
 Williams' Outlines of Equity. — A Concise View of the Principles of 
 
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 Author of " The Law relating to Legal Representatives," &c. 
 
 Royal 12mo. 1900. 55. 
 
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 13 
 
 ESTATE DUTIES.— Freeth.— 7 w/« "Death Duties." 
 ESTOPPEL— Everest and Strode's Law of Estoppel. By Lavcelot 
 Fielding Eveeest, and Editond Steode, Esqrs., Barristers-at-Law 
 Demy 8vo. 18.S4. jg,' 
 
 Ewart's Exposition of the Principles of Estoppel by Misrepre- 
 sentation.— By JouN S. EwAET, Esq., K.C. of the Canadian Bar 
 Demy 8vo. 1900. ^ g^ 
 
 EVIDENCE.— Bodington.— T7rt'e "French Law." 
 Wills' Theory and Practice of the Law of Evidence.— By Wm. 
 WxLLS, Esq., Barrister-at-Law. DemySvo. 1894. lOs. 6d 
 
 "It contains a I.irge amoimt of valuable information, very terselv and 
 accm-iitcly couvcyed "—Lmv Times. J ^ 
 
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 EVIDENCE ON COMMISSION.-Hume-Williams and Macklin's 
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 Exammations, Letter.s of Request, Mandamus and Examinations 
 before an Exammer of the Court. Second Edition. ByW.E. Hume- 
 Williams, Esq., K.C, and A. Romee Macklin, Esq., Barri.ster-at- 
 Law. DemySvo. 1903. \2s.6d. 
 
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 protession as an accurate and complete manual on this important branch of the 
 law. Eveiy pomt that is likely to occur in practice has been noted, and there ai-e 
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 aware, a novel feature— principles of our law of evidence for the guidance of 
 
 C Y A M / M A T r^^lf 'i?i^?^';i-^o^'*'?,*' '''";^ German, and a grood index."- Lav -nmes. 
 
 EXAMINATION GUIDES.— Bar Examination Guide. By H. D 
 
 Woodcock, and R. C. Maxwell, Esqrs., Barristers-at-Law 
 
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 and Orders of the Chancery and Queen's Bench Divisions. 
 By C. J. Edwards. Esq., Barrister-at-Law. Demy 8vo. 1888. 16«. 
 
 EXECUTORS.— Goffin's Testamentary Executor in England and 
 Elsewhere. By R. J. R. Goffln, Esq., Barrister-at-Law. Demv 
 8vo. 1901. 5/ 
 
 Macaskie'sTreatise on the Law of Executors and Administrators. 
 By S. C. Macaseie, Esq., Barrister-at-Law. 8vo. 1881. 10.?. Qd' 
 Williams' Law of Executors and Administrators.— Tenth Edition! 
 By the Right Hon. Sir Roland Vaijghan Williams, a Lord Justice 
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 We can conscientiously say that the present edition will not only sustain 
 
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 EXTRADITION.— Biron and Chalmers' Law and Practice of 
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 Barristors-at-Law. Demy 8vo. 1903. 20,v' 
 
 ,.,."A„<="°J*ni™t store of information upon all matters connected with extral 
 
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 14 STEVENS AND SONS, LIMITED, 
 
 FACTORIES AND WORKSHOPS.— Ruegg and Mossop's Law 
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 and L. Mossop, Esq., Barrister- at- Law. Demy 8vo. 1902. 12s. Qd. 
 
 " One of the best trt-atises on the law of factories." — Law Journal. 
 "Destined to take its place a.s the book on the Acts." — Saturday Review. 
 
 FARM, LAW OF, — Dixon's Law of the Farnn : including the Cases 
 
 and Statutes relating to the subject ; and the Agricvdtural Customs 
 
 of England and Wales. Sixth Edition. By Aubeey J. Spencee, Esq., 
 
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 " A complete modem compendium on agricultural matters." — Law Times. 
 
 FIXTURES.— Amos and Ferard on the Law of Fixtures. Third 
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 risters-at-Law. Demy 8vo. 1883. 18s. 
 
 FORIVIS.— Chitty's Forms of Civil Proceedings in the King's Bench 
 Division of the High Court of Justice, and on Appeal therefrom 
 to the Court of Appeal and the House of Lords. — Thirteenth 
 Edition. By T. W. Chitty, Esq., a Master of the Supreme Court, 
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 of the Central Office. Royal 8vo. 1902. \l. 16s. 
 
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 cery Division of the High Court of Justice and on Appeal 
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 Supreme Court ; Practical Notes ; and references to the Seventh 
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 " The standard work on Chancery Procedure." — Law Quarterly Review, 
 Seton. — Vide "Equity." 
 FRENCH LAW.— Bodington's Outline of the French Law of 
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 Demy Svo. 1904. 5s. 
 
 Cachard's French Civil Code. — By Heney Cachaed, B.A., 
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 Goirand's Treatise upon French Commercial Law and the 
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 Demy Svo. 1898. U. 
 
 Goirand's Treatise upon the French Law relating to English 
 Companies carrying on Business in France. — By Leopole 
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 Sewell's Outline of French Law as affecting British Subjects, — 
 
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 GAMBIA, — Ordinances of the Colony of the Gambia. With Index. 
 
 2 Vols. Folio. 1900. Xet, 31. 
 
 GAME LAWS. — Warry's Game Laws of England. With an 
 
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 GOLD COAST. — Ordinances of the Gold Coast Colony and the 
 
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 GOODWILL, — Allan's Law relating to Goodwill. — By Chaeles E. 
 
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 HACKNEY CARRIAGES.-Bonner & Farrant.-T'if/c " Motor Cars." 
 
 HOUSE TAX.— Ellis' Guide to the House Tax Acts, for the use of 
 
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 %* All standard Law Works are kept in Stock, in laiv calf and other bindings.
 
 1 19 & 120, CHANCERY LANE, LONDON, W.O. 15 
 
 HUSBAND AND WIFE,— Lush's Law of Husband and Wife, 
 within the jurisdiction of the Queen's Bench and Chancery 
 Divisions. By C. Montague Lush, Esq., Earrister-at-Law. Second 
 Edition. By the Author and W. H. Geiffith, Esq., Barristor-at- 
 Law. Demy 8vo. 1896. U. os. 
 
 "To the practising lawyer the work wiU be of the utmost importance." — Ltw Times. 
 
 " This book will certainly be consulted when difHcnlties arise relative to the position 
 of married women." — Law JournnK 
 
 INCOME TAX,— Ellis' Guide to the Income Tax Acts.— For the use 
 of the English Income Tax Payer. Third Edition. By Aethub 
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 Robinson's Law relating to Income Tax; with the Statutes, 
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 Ireland. — By Aethue Robinson, Esq., Barrister-at-La-w. Royal 
 8vo. 1895. \l. Is. 
 
 "The standard work on a complicated and difficult subject." — Law Journal. 
 
 INDIA,— llbert's Government of India.— Being a Digest of the Statute 
 Lawrelatingthereto, with Historical Introduction and Illustrative Do- 
 cuments. BySir CouetknayIlbeet, K.C.S.I. Demy8vo. 1898. \l. Is. 
 
 INDICTMENTS.— Bowen-Rowlands on Criminal Proceedings 
 on Indictment and Information. By E. Bowen-Rowlands, 
 Esq., Bariister-at-Law. Demy 8vo. 1904. {NearJ>j reacbj.) 
 
 INLAND REVENUE. — Highmore's Summary Proceedings 
 in Inland Revenue Cases in England and Wales, Including 
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 by Collector's Warrants for Recovery of Duties of Excise and Taxes. 
 Third Edition. By N. J. Highmoee, Esq., Barrister-at-Law, 
 Assistant Solicitor of Inland Revenue. Roy. r2mo. 1901. Is.Qd. 
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 by the Public Accounts and Charges Act, 1891, and the Finance 
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 Nathaniel J. Highmoee, Esq., Barrister-at-Law, Assistant Solicitor 
 of Inland Revenue. Demy 8vo. 1896. 7?. Qd. 
 
 INSURANCE,— Arnould onthe Law of Marine Insurance,— Seventh 
 Edition. By Edwaed Louis de Haet and Ralph Iliff Simey, 
 Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. 1901. 3/. 3.?. 
 
 " The authors have availed themselves of the advice and assistance of men of 
 practical experience in marine insurance, so that the book may be relied on as 
 accurate from a business as well as from a legal point of view. The book can 
 best be described by ihe one word ' excellent.' "—Lnw Jnnrnal. 
 
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 ance. — By Chaeles Robeet Tstsee, Esq., Barrister-at-Law. Demy 
 8vo. 1894. 10.S. Qd. 
 
 " A clear, correct, full, and yet concise statement of the law." — Lmc Thnts. 
 INTERNATIONAL LAW.— Bate's Notes on the Doctrine of 
 Renvoi in Private International Law.— By .John Pawi.ey Bate, 
 Esq., Reader of International Law, iS:c., in the Inns of Court. 8vo. 
 1904. Xct '2s. M. 
 
 Dicey. — Vide " Conflict of Laws." 
 
 Hall's International Law. — Fifth Edition. By J. B. Atlay, Esq., 
 Barrister-at-Law. Demy 8vo. 1904. Xct, U. Is. 
 
 Hall's Treatise on the Foreign Powers and Jurisdiction of the 
 British Crown. By W. E. Hall, Esq., Barrister-at-Law. Demy 
 8vo. 1894. 10,s. Qd. 
 
 Higgins' The Hague Conference and other international Con- 
 ferences concerning the Laws and Usages of War — Texts of 
 Conventions, with Notes. — By A. Peaece Higoins, M.A., LL.D., 
 sometime Scholar of Downing College ; Lecturer on Law in Clare 
 College, Cambridge. Royal Svo. 1904. Xct, [Is. 
 
 Holland's Studies in International Law, — By Thomas Eeskinh 
 Holland, D.C.L., Barrister-at-Law. Demy Svo. 1898. 10«. Qd. 
 
 Nelson's Private International Law. — By Hoeace Nelson, Esq., 
 
 Barrister-at-Law. Roy. Svo. 1889. 1/. 1*. 
 
 *^* All standard Lato Works are kept in Stock, in late calf and other bindings.
 
 16 STEVENS AND SONS, LIMITED, 
 
 INTERNATIONAL LA^N— continued. 
 
 Rattigan's Private International Law.— By Sir William Henbt 
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 Punjab. Demy 8vo. 189.5. 10s. 6d. 
 
 " Written with admirable clearness." — Latv Journal. 
 
 Walker's Manual of Public International Law.— By T. A. Waizee, 
 M.A., LL.D., Esq., Barrister-at-Law. Demy 8vo. 1895. 9s. 
 
 Walker's History of the Law of Nations. — Vol. I., from the Earliest 
 Times to the Peace of Westphalia, 1648. By T. A. Walker, M.A., 
 LL.D., Esq., Barrister-at-Law. Demy 8vo. 1899. Net, lOs. 
 
 Westlake's International Law, — Chapters on the Principles of Inter- 
 national Law. By J. Westlake, K.C, LL.D. Demy8vo. 1894. 10s. 
 
 Wheaton's Elements of International Law; Fourth English 
 
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 Barrister-at-Law. Royal 8vo. 1904. H. 12s. 
 
 The leading American and English work on International Law. 
 
 " Wheaton stands too hig'h for criticism." — Law Times. 
 
 "We congratulate Mr. Atlay on the .skill and discretion with which he has 
 performed the task of editing a standard treatise on international lsLW."—Laiv 
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 INVESTIGATION OF TITLE.— Jackson and Gosset's Investiga- 
 tion of Title. — Being a Practical Treatise and Alphabetical Digest 
 of the Law connected with the Title to Land, with Precedents of 
 Requisition.'!. Second Edition. By W. Howland Jackson and 
 Thoeold Gosset, Barristers-at-Law. Demy 8vo. 1899. 12s. 6d. 
 
 " The new edition contains the following additional subjects — namely, boun- 
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 and the changes effected by the statute law of 1899 are noticed in their proper 
 places. . . . Jackson and Gosset's book is well worth having." — Law Times. 
 " Will be of real help to the busy conveyancer." — Latv Notes. 
 
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 JUDGMENTS AND ORDERS,— Seton.— H^e "Equity." 
 
 JURISPRUDENCE.— Holland's Elements of Jurisprudence.— 
 NinthEdition. By T. E. Holland, K.C, D.C.L. 8vo. 1900. 10s. 6d. 
 
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 Demy 8vo. 1896. 12s. 6d. 
 
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 Ban-ister-at-Law. Royal 8vo. 1896. JVet, 11. 5s. 
 
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 with an Appendix of Statutes and Rules, List of Punishments, 
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 Stipendiary Magistrate for Leeds. Demy 8vo. 1900. 11- 
 
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 JUSTICE OF THE PEACE— continued. 
 
 Wigram's Justice's Note-Book.— Containing a short accoiint of the 
 Jurisdiction and Duties of Justices, and an Epitome of Criminal Law. 
 Seventh Edition. By Heney Waebueton and Leonaed AV. Keeshaw, 
 Esqrs., Barristers-at-Law. Royal Timo. 1900. 10s. 6rf. 
 
 " The information given is complete and accurate." — Law Journal. 
 " Contains a preat deal of valuable information in a small compass, -which has 
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 LAND CHARGES ACTS.— Eaton and Purcell's Land Charges 
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 LAND LAW.— Jenks' Modern Land Law. By Edwaed Jenks, Esq., 
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 LAND TAX.— Bourdin's Land Tax.— An Exposition of the Land Tax. 
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 MAGISTRATES' PRACTICE and MAGISTERIAL LAW.— nrf« 
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 MARINE INSURANCE.— n<fc "Insurance." 
 
 MARITIME DECISIONS.— Douglas' Maritime Law Decisions.— 
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 MARRIAGE.— Kelly's French Law of Marriage, Marriage Con- 
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 MARRIED WOMEN'S PROPERTY.— Lush's Married Women's 
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 "The Law of Husband and "Wife." Eoyal V2mo. 1887. 5s. 
 
 MASTER AND SERVANT.— Macdonell's Law of Master and 
 Servant. Second Edition. By Sir John Macdonell, LL.D., C.B., 
 a Master of the Supreme Court, and Edwaed A. Mitchell Innes, 
 Esq., Bairister-at-Law. (In preparation.) 
 
 MEDICAL PARTNERSHIPS.— Barnard and Stocker's Medical 
 Partnerships, Transfers, and Assistantships.— By Willla.m 
 Baenaed, Esq., Barrister-at-Law, and G. Beeteam Stockee, Esq., 
 Managing Director of the Schohistic, Clerical and Medical Associa- 
 tion (Linnted). Demy 8vo. 1895. lOs. 6d. 
 
 MERCANTILE LAW.— Smith's Compendium of Mercantile Law. 
 
 — Tenth Edition. By John Macdonell, Esq., C.B., a Master of 
 
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 Barrister-at-Law. 2 vols. Royal 8vo. 1890. 21. 2s. 
 
 " Of the greatest value to the mercantile lawyer."— Lajo Times. 
 
 " One of the most scientific treatises extant on mercantile law." — Snl. Jl. 
 
 Tudor's Selection of Leading Cases on Mercantile and Maritime 
 Law. — With Notes. By O. D. Tudoe, Esq., Barrister-at-Law. 
 Third Edition. Eoyal Svo. 1884. 21. 2s. 
 
 Wilson's Mercantile Handbook of the Liabilities of Merchant, 
 Shipowner, and Underwriter on Shipments by General Ves- 
 sels, — By A. Wilson, SoUcitor and Notary. Royal I'imo. 1883. 6s. 
 
 MERCHANDISE MARKS ACT.— Payn's Merchandise Marks 
 Act,! 887.—ByH.PATN, Barrister-at-Law. Royall2mo. 1888. 3s. 6d. 
 " A safe ^de to all who are interested in the Act." — Law Times. 
 
 METROPOLIS BUILDING ACTS.-Craies' London Building Act, 
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 MINES AND MINING.— Cockburn,— 7u^e "Coal." 
 
 MORALS AND LEGISLATION.— Bentham's Introduction to the 
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 MORTGAGE. — Beddoes' Concise Treatise on the Law of Mort- 
 gage. — By W.F. Beddoes, Esq., Barrister-at-Law. Svo. 1893. 10*. 
 " We commend the work as a reliable and usefiil little manual."— iat« 
 
 Student.^' Journal. 
 
 "We can cordially recommend this work to a practitioner who likes to have 
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 Coote's Treatise on the Law of Mortgages. — By the lateRicHAED 
 Holmes Coote, Esq., Barristcr-at-Law. Seventh Edition. By 
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 MOTOR CARS, — Bonner and Farrant's Law of Motor Cars, 
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 MUNICIPAL CORPORATIONS.— Bazalgette and Humphreys.— 
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 NAVY.— Manual of Naval Law and Court Martial Procedure; 
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 GiFFOED, Esq., C.B., Fleet Paymaster, Royal Navy, and F. 
 Haeeison Smith, Esq., Staff Paymaster, Royal Navy. Demy 8vo. 
 
 1901. ^^*' 
 
 " Well ■written, excellently arranged, and fully comprehensive." -icj^ Journal. 
 " Well up to date .... May be thoroughly relied upon."— iaw Times. 
 
 NEGLIGENCE.— Smith's Treatise on the Law of Negligence. 
 
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 NISI PRIUS.— Roscoe's Digest of the Law of Evidence on the 
 
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 " Continues to be a vast and closely packed storehouse of information on 
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 " Almost invaluable to a Nisi Prius practitioner. ... We have nothing 
 y,ntv>r.\isoiovthe-ae\y&\iiir,n."—La%v Quarterly neviejv. , _ ^. , 
 
 NOTARY.— Brooke's Treatise on the Office and Practice of a 
 Notary of England.— With a full collection of Precedents. Sixth 
 Edition. By James Ceanstoun, Esq., Barrister-at-Law. Demy 8vo. 
 
 1901. ^^' ^''* 
 
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 OATHS.— Stringer's Oaths and Affirmations in Great Britain and 
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 and of all Courts of Civil Procedure and Offices attached thereto. By 
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 one of the Editors of the "Annual Practice." Second Edition. 
 Crown 8vo. 1893. ^*- 
 
 " Indispensable to all commissioners."— SohcjJors' Journal. 
 
 ORANGE RIVER.— The Statute Law of the Orange River Colony. 
 
 -Translated. Royal 8vo. 1901. ^ 2/. 2s. 
 
 OTTOMAN CIVIL LAW.— Grigsby's Medjelle, or Ottoman Civil 
 
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 BaiTister-at-Law. Demy 8vo. 1895. 1^- 1«- 
 
 PARISH LAW.— Humphreys' Parish Councils.— The Law relating 
 
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 an Appendix of Statutes, together with an Introduction, Notes, and 
 
 a Copious Index. Second Edition. By Geoeoe Humpheeys, Esq., 
 
 Barrister-at-Law. Royal 8vo. 1895. , ,. ^ l.?** 
 
 Steer's Parish Law. Being a Digest of the Law relating to the 
 
 Civil and Ecclesiastical Government of Parishes and the Relief ot the 
 
 Poor Sixth Edition. By W. H. Maonamaea, Esq., Assistant 
 
 Master of the Supreme Court, Registrar of the Court constituted 
 
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 " Of CTcat sei-i-ice both to lawyers and to parochial omcexs."—SolicUnTs Jour. 
 
 " A most useful book of reference on all matters connected with the parish, 
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 PARTNERSHIP.— Pollock's Digest of the Law of Partnership. 
 
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 " Of the execution of the work we can speak in terms of the highest praise. 
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 PATENTS— Edmunds on Patents.— The Law and Practice of Letters 
 
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 BvT M.Stevens, Esq., Barrister-at-Law. Roy. 8vo. 1897. II. vis. 
 
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 1888 Consolidated with an Index. Second Edition. By Lewis 
 
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 PAT E N IS— continued. 
 
 Johnson's Patentees' Manual. — A Treatise on the Law and 
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 With Dissertations and Copious Notes on the Law and Practice. By 
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 Thompson's Handbook of Patent Law of all Countries.— By 
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 Thompson's Handbook of British Patent Law. Eleventh Edition. 
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 PAWNBROKING.— Attenborough's Law of Pawnbroking, with 
 the Pawnbrokers Act, 1872, and the Factors Act, 1889, and 
 Notes thereon. By Chaeles L. Attenboeough, Esq., Barrister- 
 at-Law. Post 8vo. 1897. Net, 3*. 
 PLEADING.— Bulien and Leake's Precedents of Pleadings, with 
 Notes and Rules relating to Pleading. Eifth Edition. Revised and 
 Adapted to the Present Practice in the Queen's Bench Division of 
 the High Coui-t of Justice. By Thomias J. Bullen, Esq., Barrister- 
 at-Law, Cyeil Dodd, Esq., K.C., and C. W. Cliffoed, Esq., Bar- 
 rister-at-Law. DemySvo. 1897. 1/. 18s. 
 " The standard work on modem pleading." — Law Journal. 
 " A very large number of precedents are collected together, and the notes are 
 full and clear." — Law Times. 
 
 " The Editors have in eveiy way preserved the high standard of the work 
 and brought it down to date effectively and conscientiously."— iaw dfagazine. 
 
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 Actions in the High Court of Justice.— Eifth Edition. By W. 
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 Digest of the Law of Libel and Slander." Demy Svo. 1903. 12s. 6d. 
 
 " The student or practitioner who desires instruction and practical guidance 
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 proval also of examining bodies, as it is remarkably free from any adaptability to 
 the purposes of the mere crammer." — Literature. 
 
 "An invaluable book." — Law Notes. 
 
 " Terse, clear and pointed." — Law Quarterly Seview. 
 
 POISONS.— Reports of Trials for Murder by Poisoning.— With 
 Chemical Introductions and Notes. By G. Latham Beowne, Esq., 
 Bai-rister-at-Law, andC. G. Stewaet, Senior Assistant in the Labo- 
 ratory of St. Thomas's Hospital, &c. Demy Svo. 1883. 12s. 6d 
 
 POLICI ES. — Farrer. — Vide "Vendors and Purchasers." 
 
 POWERS.— Farwel I on Powers.— A Concise Treatise on Powers. 
 Second Edition. By Ge'oege Faewell, Esq., Q.C. (now a Justice 
 of the High Court), assisted by W. R. Sheldon, Esq., Barrister- 
 at-Law. Roval Svo. 1893. 1/ 6^ 
 
 PRI NCI PAL AND AG E NT.— Wright's Law of Principal and Agent'. 
 By E. Blackwood Weight, Esq., Bamster-at-Law. Second Edition. 
 DemySvo. 1901. ]8s. 
 
 "Clearly arranged and clearly -written."— Laiv Times. 
 
 "May with confidence be recommended to all legal practitioners as an accu- 
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 "An excellent hook."— Law Quarterly Seview. 
 
 PRIVY COUNCIL LAW.— Wheeler's Privy Council Lawi ASynop- 
 
 sis of all the Appeals decided by the Judicial Committee (including 
 Indian Appeals) from 1876 to 1891. Together with a precis of the 
 Cases from the Supreme Coirrt of Canada. By Geoege Wheelee, 
 Esq., Barrister-at-Law, and of the Judicial Department of the Privy 
 Council. Royal Svo. 1893, II. lis. Qd. 
 
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 PROBATE. — Nelson's Handbook on Probate Practice (Non-Con- 
 tentious), (Ireland). — By Howaed A. Nelson, Esq., Barrister-at- 
 Law. Demy 8vo. 1901. 12*. 6d. 
 
 Powles and Oakley's Law and Practice relating to Probate and 
 Administration. By L. D. Powles, Barrister-at-Law, and T. W. 
 H. Oaexey, of the Probate Registry. (Being a Third Edition of 
 " Browne on Probate.") Demy 8vo. 1892. U. lOs. 
 
 PROPERTY.— -See also " Real Property." 
 
 Raleigh's Outline of the Law of Property.— DemySvo. 1890. 7s.6d. 
 
 Strahan's General View of the Law of Property. — Third Edition. 
 
 By J. A. Steahan, assisted by J. Sinclaie Baxtee, Esqrs., Barris- 
 
 ters-at-Law. Demy 8vo. 1901. Us. 6d. 
 
 " The student will not easily find a better general view of the law of property 
 
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 " We know of no better book for the class-room." — Law Times. 
 
 PUBLIC MEETINGS.— Chambers' Handbook for Public Meet- 
 ings. — Second Edition. By Geoeoh F. Chaubees, Esq., Barrister- 
 at-Law. Demy 8vo. 1888. JS"'et, 2s. 6d. 
 
 QUARTER SESS\ONS.— See also " Criminal Law." 
 
 Pritchard's Quarter Sessions. — The Jurisdiction, Practice, and 
 Procedure of the Quarter Sessions in Judicial Matters, Criminal, 
 Civil, and Appellate. Second Edition. By Joseph B. Matthews 
 and V. Geaham Milwaed, E.sqrs., Barristers-at-Law. Demy 8vo. 
 1904. 11. lis. 6d. 
 
 "A most useful and comprehensive guide to Quarter Sessions practice." — 
 Law Jnunird, July 2, 1904. 
 
 RAILWAY RATES.— Darlington's Railway Rates and the Carriage 
 of Merchandise by Railway. — By H. R. Daelinoton, Esq., 
 
 Barrister-at-Law. Demy 8vo. 1893. II. 5s. 
 
 RAILWAYS.— Browne and Theobald's Law of Railway Com- 
 panies. — Being a Collection of the Acts and Orders relating to 
 Railway Companies in Great Britain and Ireland, with Notes of all 
 the Cases decided thereon. Third Edition. By J. H. Balfoue 
 Beowne, Esq., one of His Majesty's Counsel, and Feank Balfoue 
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 "It is difficult to tind in this work any subject in connection with railways 
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 "Practitioners who require a comprehensive treatise on railway law will find it 
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 Powell's Relation of Property to Tube Railways. — By Matjeice 
 
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 RATES AND RATING.— Castle's Law and Practice of Rating.— 
 
 Fourth Edition. By Edwaed James Castlb, Esq., one of Hia 
 
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 account of its conciseness, its lucidity, and its accuracy." — Law Times. 
 
 Hamilton and Forbes' Digest of the Statutory Law relating to 
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 REAL PROPERTY. — Carson's Real Property Statutes, comprising, 
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 REAL PROPERTY— cmtinued. 
 De Villier's History of the Legislation concerning Real and 
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 Digby's History of the Law of Real Property. Fifth Edition. 
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 torical Sketch. By Richaed C. Maclauein, Esa., of Lincoln's Inn. 
 Demy Svo. 1901. 10«. 6d. 
 
 Shelford's Real Property Statutes, — Tir^e " Carson." 
 
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 REGISTRATION,— Rogers.— ri<ie" Elections." 
 
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 Abdy and Walker's Commentaries of Gaius and Rules of Ulpian, 
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 Greene's Outlines of Roman Law. — Consisting chiefly of an 
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 26 STEVENS AND SONS, LIMITED, 
 
 RULING CASES. — Campbell's Ruling Cases.— Arranged, An- 
 notated, and Edited by Robeet Campbell, of Lincoln's Inn, Esq., 
 Barrister- at- Law, Advocate of the Scotch Bar, assisted by other 
 Members of the Bar. With American Notes by Irving Beowne, 
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 *jf* The Volumes sold separately, net, each \l. 5s. 
 
 I, — Abandonment— Action. 
 
 II. — Action— Amendment. 
 
 111. — Ancient Light— Banker. 
 
 IV.— Bankruptcy— Bill of Lading. 
 
 v.— Bill of Sale— Conflict of Laws. 
 
 VI.— Contract. 
 
 VII. — Conversion — Counsel. 
 VIII.— Criminal Law— Deed. 
 
 IX.— Defamation — Dramatic and 
 Musical Copyright. 
 
 X. — Easement— Estate. 
 
 XI. — Estoppel— Execution. 
 
 XII. — Executor — Indemnity. 
 XIII. — Infant— Insurance. 
 
 XIV. — Insurance— Interpretation. 
 XV. — Judge— Landlord and Tenant. 
 XVI.— Larceny— Mandate. 
 XVII.— Manorial Right— Mistake. 
 XVIII. — Mortgage— Negligeiice. 
 XIX.— Negligence- Partnership. 
 XX.— Patent. 
 XXL— Payment— Purchase for Value 
 
 without Notice. 
 XXII.— Quo Warranto — Release. 
 XXIII.— Relief— Sea. 
 XXIV. — Search Warrant— Telegraph. 
 XXV.— Tenant— Wills. 
 XXVI.— Table of Cases ; Index. 
 
 THIS SERIES PRESENTS— 
 
 The best Enghsh Decisions (in full), 
 
 From the earlier Reports to the present time, 
 
 Grouped under topics alphabetically arranged. 
 
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 " A Cycloppedia of law .... most ably executed, learned, accurate, clear, 
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 SALES.— Blackburn on Sales, A Treatise on the Effect of the Con- 
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 Goods, Wares, and Merchandise. By Lord Blackbuen. 2nd Edit. 
 By J. C. Geaham, Esq., Barrister-at-Law. Royal 8vo. 1885. 1^. 1«. 
 
 SALVAGE.— Kennedy's Treatise on the Law of Civil Salvage.— By 
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 Royal 8vo. 1891. 12«. 
 
 SHERIFF LAW.— Mather's Compendium of Sheriff and Execu- 
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 " The subject is one of great practical importance, and this edition will be 
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 SH\PP\NG.—Carwer.— Vide " Carriers." 
 
 Marsden's Digest of Cases relating to Shipping, Admiralty, 
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 Pulling's Shipping Code; being the Merchant Sliipping Act, 1894 
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 " The leading authority on the law relating to solicitors." — Law Journal. 
 
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 " The leading authority on its subject."— iau- Journal. 
 
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 STAMP LAWS. — Highmore's Stamp Laws. — Being the Stamp Acts 
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 parison with the antecedent Law. Second Edition. By Nathaniel 
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 Chitty's Statutes. — The Statutes of Practical Utility, from the 
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 Arranged in Alphabetical and Chronological Order; with Notes and 
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 fV The Supplementary Volume, 1895 to 1901. Consolidated 
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 STATUTE LAW.— Wilberforce on Statute Law. The Principlea 
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 WiLBEEFOECE, Esq., a Master of the Supreme Court. 1881. 18s. 
 
 STOCK EXCHANGE.—Schwabe and Branson's Treatise on 
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 SUMMARY CONVICTIONS.— Paley's Law and Practice of Sum- 
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 TAXPAYERS' GUIDES.— ri<fe "House," "Income," & "Land Tax." 
 
 THEATRES AND MUSIC HALLS.— Geary's Law of Theatres 
 and Music Halls, including Contracts and Precedents of 
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 tion. By Jaijkb Williams, Esqrs., Barristers-at-Law. 8vo. 
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 TITLE.— Jackson and Gosset.— n<fe " Investigation of Title." 
 TORTS.— Addison on Torts. — A Treatise on the Law of Torts; or 
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 with Forms and Precedents ; the Merchandize Marks Acts, 1887-94, 
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 and the Rules and Forms thereunder ; and the Treaty with the United 
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 " Stands alone as an authority upon the law of trade-marks and their regis- 
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 ByLEWis Boyd Sebastian, Esq., Barrister-at-Law. 8vo. 1879. ll.ls. 
 
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 TRAMWAYS, — Robertson's Law of Tramways and Light Rail- 
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 of the United Kingdom " ) : comprising the Statutes relating to Tram- 
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 TRANSVAAL.— The Statute Law of the Transvaal. Translated. 
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 VENDORS AND PURCHASERS.— Dart's Vendors and Pur- 
 chasers. — A Treatise on the Law and Practice relating to Vendors 
 and Purchasers of Real Estate. By the late J. Heney DAET,.E8q. 
 Seventh Edition. By Benjamin L. Cheeey, one of the Editors of 
 " Prideaux's Precedents in Conveyancing," G.E. Tyeeell, Aethite 
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 " Mr. Farrer has written a rare thiii» — a new book which will be of real value 
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 "The work, while sufficiently elementary to be of extreme use to students and 
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 Turner's Duties of Solicitor to Client as to Sales, Purchases, and 
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 WINDING UP,— Palmer's.— 7';(^e " Company Law." 
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