J» 
 

 Cornell Univeirsity Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN HEriORY op 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLrAMS 
 
Cornell University Library 
 KF1091.B88W6 
 
 Wood's Browne on the law of carriers of 
 
 3 1924 018 926 653 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018926653 
 
WOOD'S 
 BROWNE 
 
 ON THE 
 
 LAW OF CARRIERS 
 
 OF 
 
 GOODS AND PASSENGERS BY LAND 
 AND WATER. 
 
 oV**^^ BY 
 J.° H.° BALFOUR BROWNE, Esq., 
 
 OF THE MIDDLE TEMPLE AND MIDLAND CIRCUIT, BAREISTER-AT-LAW ; 
 
 AUTHOR OF " THE MEDICAL JURISPRUDENCE OP 
 
 INSANITY," ETC. 
 
 WITH NOTES AND REFERENCES TO AMERICAN CASES 
 
 By H. G. WOOD, 
 
 AUTHOR OF " LANDLORD AND TENANT," " FIRE INSURANCE,' 
 AND "SLANDER AND LIBEL." 
 
 BANKS AND BROTHERS, 
 
 3Labj Publtsijerg, 
 
 NEW TOEK : 144 NASSAU ST. ALBANY, N. T. : 473 AND 475 BROADWAY. 
 
 1883. 
 
jiypyright, 1883, 
 By Banks and Brothers. 
 
 University Press: 
 John Wilson and Son, Cambridge. 
 
TO THE 
 
 HONORABLE SIR ROBERT LUSH, Knight, 
 
 ONE OP THE JUSTICES OF HER MAJESTY'S COUKT 
 OF QUEEN'S BENCH, 
 
 STfjts SHorft is ©rtrtcatelr, 
 
 BY PERMISSION, 
 
 AS A TRIBUTE OF PERSONAL ESTEEM, 
 
 AND PROFOUND RESPECT FOR HIS JUDICIAL CHARACTER 
 AND LEGAL ATTAINMENTS. 
 
PREFACE TO THE AMERICAN EDITION. 
 
 No excuse is necessary for the reproduction of this ad- 
 mirable treatise in this country. It is indispensable to 
 American lawyers, to enable them to determine the applica- 
 bility of the decisions of the English courts to similar ques- 
 tions arising in our courts. The law relating to carriers is 
 so largely regulated by statute in England, that, without a 
 work pointing out the instances in which those statutes have 
 varied the common-law rules relating thereto, it is impossible 
 to determine whether the decisions of the English courts upon 
 a given question relating to the rights and liabilities of car- 
 riers are entitled to any weight upon the determination of 
 similar questions here. Mr. Browne has pointed out the 
 instances in which these statutes have overridden or changed 
 the common-law rules very clearly, and thus has performed 
 a most excellent service for our lawyers and courts ; and it is 
 believed that, while the work may not supplant the various 
 excellent American treatises upon this subject, yet it will be 
 found to be a convenient and necessary adjunct thereto. 
 
 H. G. WOOD. 
 Boston, June 1, 1883. 
 
PREFACE. 
 
 The importance of any department of law is in direct pro- 
 portion to the importance of the interests affected by its rules. 
 The relative importance of various legal questions has conse- 
 quently varied with the varying conditions of progressive civ- 
 ilization. The real-property law of this country is a museum 
 of useless rules and regulations which, although admirable in 
 their day, have " as little meaning in these new times as the 
 flint arrow-heads which are found in our bogs and marshes. 
 
 We see a reflected history of the past in the laws which 
 were dictated by the necessities of the time, just as we can 
 trace the tides of the sea which has retreated from some 
 coast, by the breakwater which was at one time necessary to 
 prevent its encroachments. 
 
 The old feeling, which was natural in lawless times, that 
 real property was a much more eligible possession than prop- 
 erty in chattels, has to some extent passed away before the 
 inexorable facts of industrial times ; but the respect which is 
 still given to the owners of land is perhaps to. be traced, as 
 to its roots, to the feelings of that earlier and less civilized 
 period. Now, however, the law in its relation to personal 
 property, although it may have less historical interest, is not 
 less important in the eyes of lawyers than that which has 
 reference to property in land. The movable property of this 
 country is at the present time of infinitely more value than 
 the immovable ; and as it is in the hands of a much larger 
 number of proprietors, the interests affected by the laws re- 
 lating to personal property are certainly not less important 
 than those which have reference to real property. 
 
Vlll PREFACE. 
 
 But our personal property has, owing to the conditions of 
 the period, become more movable than it was in times past. 
 We are a commercial as well as an industrial people, and the 
 more our manufactures increase, the more our commerce 
 extends. The laws of action and reaction are visible in the 
 vital phenomena of trade. Industry has not only increased 
 the amount of traffic, but traffic has increased the amount of 
 industry. Rapid means of conveyance have localized indus- 
 tries in those places which were most favorable for their 
 advantageous prosecution, and this large-scale division of 
 labor (large-scale because it is not only a division of employ- 
 ments among individuals but among cities and countries) has 
 in its turn reacted upon traffic. 
 
 At the present time, therefore, our property is valuable by 
 reason of its very movable character. As a money system 
 is more excellent than a system of barter, because of the pos- 
 sibility of currency, so personal property has become more 
 valuable in these days by reason of the facilities for exchange. 
 And the tendency of our times is still further to divide the 
 labor of the country, and consequently to make a still more 
 extensive use of the means of trade conveyance. Hence the 
 importance of the law of carriers. 
 
 These circumstances will indicate why the subject dealt 
 with in this treatise has more importance now than it had in 
 times gone by, and may serve to explain the reasons which 
 induced the author to enter upon the task of writing it so 
 soon after the publication of Messrs. Chitty and Temple's 
 able work upon the Law of Carriers. Although it seems a 
 short time since the publication of that work, it is not really 
 a short time to a lawyer, who must judge of the necessity of 
 a restatement of the law, not by the number of years since 
 the publication of the last work, but by the number of cases 
 which have been decided, or rather, to look at the subject 
 with a deeper internal reference, to the number of important 
 principles which have received illustration and elucidation 
 since the publication of the previous text-book. 
 
PREFACE. IX 
 
 This leads the author naturally to speak of what might 
 seem a defect in the following treatise, but which to him 
 appears a positive merit. Some parts of the subject have 
 received a greater amount of attention than others, and while 
 every important question connected with the law of carriers 
 has been alluded to, many have been much more fully treated 
 than others, and that because the author found that the state- 
 ment of the law contained in other text-books was sufficiently 
 adequate in relation to certain rules, and could have done 
 little more than transfer the statements contained in these to 
 the pages of his own work. He was unwilling to do this, and 
 he therefore left most of those portions of his subject which 
 were adequately treated in other works with a less full expo- 
 sition in his own, while he bestowed greater attention upon 
 those questions which had received inadequate answers in 
 other books upon the same department of law. 
 
 The author does not wish his book to seem to enter into 
 competition with Mr. Angell's admirable work upon the Law 
 of Carriers. That useful text-book must still be of service to 
 the English practitioner, and invaluable to the American law- 
 yer. In many connections, however, the text of that work 
 cannot be regarded as an efficient statement of the law of 
 England as it at present stands, and some subjects which 
 must in future be of paramount importance in the eyes of 
 English lawyers, are only alluded to. That being so, the 
 work can never be all in all to the lawyer who has to prac- 
 tise in relation to English courts, and consequently there is 
 still some necessity for a work on the law of carriers. But 
 any treatise on the law in its relations to conveyance, written 
 at the present time, would be wanting in a great excellence 
 which Mr. Angell's work possesses, unless it contained refer- 
 ences to cases decided in the United States. 
 
 The author has to express his deep sense of the obligation 
 which he owes to his friend Mr. James P. Aspinall, of the 
 Midland Circuit, for his careful revision of the manuscript of 
 
X PREFACE. 
 
 the first part of this work, and for the advice and assistance 
 which he has afforded with reference to those portions which 
 are devoted to questions of freight and shipping. 
 
 He has also great pleasure in acknowledging his indebted- 
 ness to his friends, Mr. Henry F. Makins and Mr. Lewis E. 
 Glyn, both of the Home Circuit : the former, for his kindness 
 in revising many of the proofs and correcting many inaccura- 
 cies ; the latter, for the compilation of the Appendix of Plead- 
 ings, which will, he doubts not, be of the greatest service to 
 the reader or practitioner. 
 
 6 Essex Coubt, Temple, 
 Oct. 23, 1872. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 PAGE 
 
 Introductory. — The Principles op the Law op Bailments 1 
 
 CHAPTER II. 
 Carriers without Hire 15 
 
 CHAPTER III. 
 
 Carriers por Hire who are not Common Carriers . . 34 
 
 CHAPTER IV. 
 "Who are Common Carriers 67 
 
 CHAPTER V. 
 
 Of the Common-Law Duty of Common Carriers to re- 
 ceive Goods 147 
 
 CHAPTER VI. 
 
 Of the Common-Law Duty of Common Carriers to con- 
 vey and deliver Goods safely and securely, or of 
 their Responsibility 162 
 
 CHAPTER VII. 
 
 Of the Limited Responsibility of Common Carriers. — 
 Op Restriction op their Common-Law Liability by 
 Statute or by Special Contract 190 
 
Xll CONTENTS. 
 
 chapter vnr. 
 
 On Delivery and Non-Delivert 284 
 
 CHAPTER IX. 
 Restrictions upon Carriers 355 
 
 CHAPTER X. 
 The Rights of Carriers 446 
 
 CHAPTER XI. 
 Carriers of Passengers 490 
 
 CHAPTER XH. 
 Actions against and bt Carriers 585 
 
 APPENDIX. 
 
 Introduction to Pleading 699 
 
 Forms of Pleadings 703 
 
 INDEX 745 
 
INDEX OF STATUTES. 
 
 12 Charles II. c. 35, p. 73. 
 
 3 Will. & Mar. c. 12, p. 334. 
 
 7 Geo. II. c. 15, p. 318. 
 
 21 Geo. II. c. 28, p. 324. 
 
 26 Geo. III. c. 86, § 2, pp. 93, 95, 318. 
 
 43 Geo. IH. c. 56, p. 444. 
 
 45 Geo. III. c. 58, § 15, p. 343. 
 
 53 Geo. m. c. 36, p. 444. 
 
 54 Geo. m. c. 228, § 18, p. 343. 
 
 56 Geo. in. c. 114, p. 444. 
 
 57 Geo. III. c. 10, p. 444. 
 
 6 Geo. IV. c. 107, § 138, p. 343. 
 
 c. 116, p. 444. 
 9 Geo. IV. c. 21, p. 444. 
 11 Geo. IV. and 1 Will. IV. c. 68, pp. 
 
 19, 55, 60, 129, 130, 132, 153, 160. 
 11 Geo. IV. and 1 Will. IV. c. 68, §§ 
 
 7, 9, p. 543. 
 1 & 2 Will. IV. c. 58, pp. 222, 225. 
 3 Will. IV. c. 34, p. 44. 
 
 3 & 4 Will. IV. c. 34, § 156, p. 83. 
 
 c. 48, p. 433. 
 c. 55, p. 326. 
 
 4 Will. IV. c. 64, § 19, p. 83. 
 
 5 & 6 Will. IV. e. 56, p. 444. 
 1 & 2 Vict. o. 79, p. 430. 
 
 c. 98, p. 237. 
 3 & 4 Vict. c. 50, p. 319. 
 
 c. 97, p. 242. 
 
 c. 97, § 1, pp. 238, 398. 
 
 c. 97, §§ 1, 5, 8, 9, 11, 
 13, p. 398. 
 
 c. 97, § 5, pp. 238, 398. 
 5 & 6 Vict. c. 53, § 17, p. 398. 
 
 c. 55, § 4, pp. 239, 399. 
 
 c. 55, §§ 6, 7, 9, 12, p. 
 399. 
 
 5 & 6 Vict. c. 55, § 20, p. 237. 
 
 c. 79, § 13, p. 432. 
 c. 107, p. 444. 
 
 6 & 7 Vict. c. 86, pp. 430, 435. 
 
 7 & 8 Vict. c. 85, p. 403. 
 
 c. 85, § 6, p. 400. 
 c. 85, §11, pp. 237,239. 
 c. 85, § 15. p. 398. 
 c. 85, §§ 16, 17, p. 257. 
 
 8 Vict. c. 18, p. 573. 
 
 c. 20, p. 189. 
 
 c. 20, §§ 3, 92, 93, 94, 95, 
 
 96, 97, 98, p. 339. 
 c. 20, § 86, p. 240. 
 
 8 & 9 Vict. c. 14, p. 444. 
 
 c. 16, § 124, p. 242. 
 c. 20, § 48, pp. 239, 399. 
 ;c. 20, § 86, p. 80. 
 c. 20, § 89, pp. 236, 240. 
 c. 20, § 90, p. 250. 
 c. 20, § 103, p. 419. 
 c. 20, § 105, p. 241. 
 c. 20, § 108, p. 241. 
 c. 28, pp. 250, 319. 
 c. 42, pp. 235, 319. 
 :c. 42, §2, p. 242. 
 c. 89, p. 326. 
 
 9 & 10 Vict. c. 57, § l,pp. 239, 399. 
 
 c. 93, pp. 557, 568. 
 
 10 & 11 Vict. c. 85, p. 237. 
 
 c. 89, p. 430. 
 
 c. 89, § 37, p. 434. 
 
 c. 103, p. 444. 
 
 11 & 12 Vict. c. 6, p. 444. 
 
 c. 63, p. 434. 
 
 12 & 13 Vict. c. 29, p. 326. 
 
 c. 33, p. 444. 
 
XIV 
 
 13 & 14 Vict. c. 
 
 14 Vict. c. 1, p. 
 14 & 15 Vict. c. 
 
 c. 
 c. 
 c. 
 c. 
 c. 
 c. 
 c. 
 c. 
 c. 
 c. 
 
 INDEX OP STATUTES. 
 
 15 & 16 Vict, 
 
 16 & 17 Vict, 
 
 17 & 18 Vict, 
 
 c. 
 c. 
 c. 
 c. 
 18 & 19 Vict. c. 
 c. 
 c. 
 c. 
 
 7, p. 430. 
 444. 
 
 64, pp. 238, 398. 
 99, § 2, p. 534. 
 44, p. 444. 
 67, § 42, p. 504. 
 76, § 74, p. 517. 
 86, p. 430. 
 127, § 14, p. 435. 
 131, p. 326. 
 31, p. 423. 
 31, §6, pp. 255,258. 
 31, § 7, pp. 26, 33, 
 35, 147, 161, 164, 
 188. 
 
 31, §§17, 18, p. 314. 
 81, p. 133. 
 104, p. 326. 
 104, § 44, p. 326. 
 104, § 126, p. 565. 
 104, § 191, p. 326. 
 104, §§ 291-329, p. 
 448. 
 
 104, §§326, 327, 328, 
 329, p. 450. 
 104, § 329, p. 192. 
 104, § 353, p. 326. 
 104, §§ 503, 504, p. 
 554. 
 
 104, §§ 507, 508, 
 512, p. 573. 
 104, § 510, p. 565. 
 104, § 583, p. 49. 
 110, § 388, p. 554. 
 120, p. 93. 
 11, § 1, p. 489. 
 91, p. 226. 
 104, p. 450. 
 119, §§ 4, 6, 16, 19, 
 20, 21, &c, pp. 445, 
 446, 555, 559. 
 119, §§ 54, 73, 89, 
 90, 91, p. 565. 
 119, §§ 26, 58, 73, 
 p. 573. 
 
 19 & 20 Vict, 
 
 21 & 22 Vict. 
 
 22 & 23 Vict, 
 
 23 & 24 Vict, 
 
 24 & 25 Vict, 
 
 25 & 26 Vict. 
 
 26 & 27 Vict 
 
 27 & 28 Vict, 
 
 29 & 30 Vict, 
 
 30 & 31 Vict. 
 
 31 & 32 Vict, 
 
 32 & 33 Vict 
 
 33 & 34 Vict 
 
 34 & 35 Vict. 
 
 c. 60, § 17, p. 12. 
 
 c. 71, §§ 1, 2, p. 402. 
 
 c. 97, p. 438. 
 
 c. 3, p. 438. 
 
 c. 115, p. 430. 
 
 c. 22, §§21, 24,' p. 490. 
 
 c. 41, p. 402. 
 
 c. 126, § 12, p. 227. 
 
 c. 10, § 10, p. 226. 
 
 c. 52, p. 450. 
 
 c. 102, p. 425. 
 
 c. 63, p. 199. 
 
 c. 63, § 35, p. 450. 
 
 c. 67, § 7, p. 425. 
 
 c. 51, pp. 447, 448. 
 
 c. 95, § 1, p. 558. 
 
 c. 95, § 2, p. 559. 
 
 c. 36, § 1, p. 432. 
 
 c. 64, § 10, p. 432. 
 
 c. 69, pp. 190, 241. 
 
 c. 90, §§ 24, 25, p. 438. 
 
 c. 134, p. 431. 
 
 c. 5, p. 431. 
 
 c. 119, pp. 313, 406. 
 
 c. 119, § 20, p. 407. 
 
 c. 14, p. 431. 
 
 c. 115, §§6, 7, 8, p. 431. 
 
 c. 78, p. 425. 
 
 c. 78, §§ 3, 34, 35, p. 
 
 427. 
 c. 78, §§47, 48, 51, 53, 
 
 p. 428. 
 c. 78,. §§ 54, 55, 62, 
 
 p. 429. 
 c. 69, p. 425. 
 c. 69, §§ 18, 25, 26, 28, 
 
 p. 426. 
 c. 69, §§ 30, 31, p. 427. 
 c. 78, p. 399. 
 c. 78, §§ 3, 4, 5, 6, 7, 
 
 8, p. 318. 
 c. 78, § 12, p. 193. 
 c. 78, §§23, 24, p. 406. 
 
TABLE OF CASES. 
 
 [the figures refer to the pages.] 
 
 Aaron v. Second Avenue R. R. Co. 690 
 
 Abbott v. Bradstreet 679 
 
 v. Gatch 666 
 
 Abraham v. Budd 378 
 
 Aehard v. King 449 
 
 Adams v. Clark 598 
 
 v. Davis 649 
 
 v. Lancashire & Yorkshire 
 
 Bail. Co. 509 
 
 v. Midland Kail. Co. 299 
 
 Adams Express Co. v. Cressap 310 
 
 v. Egbert 666 
 
 v. Haymes 158,237 
 
 v. Reagan 250, 259 
 
 Adonis v. Blankenstein 319 
 
 Adrian v. The Live Yankee 186 
 
 Alabama, The, v. Gamecock, The 582 
 
 Alden v. New York Central R. R. 
 
 Co. 539 
 
 v. Pearson 597 
 
 Aldey v. Reeves 369 
 
 Aldridge v. Great Western Rail. 
 
 Co. 256, 265, 311 
 
 Aldworth v. Stewart 563, 565, 578 
 
 Alers v. Tobin 673 
 
 Alexander v. Green 66 
 
 v. Malcomson 250 
 
 Alfen, The 473 
 
 Alhambra, The 583 
 
 Allday v. Great Western Rail. Co. 47, 
 
 262 
 
 Allen v. Gilby 347 
 
 v. Sewall 75, 595 
 
 v. Tunbridge 560 
 
 Allison v. Chandler 691 
 
 Alsager v. St. Catherine's Dock 
 
 Co. 476 
 
 Alt v. Weidenberg 463 
 
 Alton v. Midland Rail. Co. 534, 608-674 
 America, The 583 
 
 American Ex. Co. v. Perkins 234 
 
 v. Sands 226, 249 
 v. Stack 306, 320 
 Amies v, Stevens 166 
 
 Amoskegg, &c. Co. o. The John 
 
 Adams 582 
 
 Anderson v. Clarke 617 
 
 v. Foresman 15 
 
 (or Henderson) v. Lon- 
 don & North-West- 
 ern Rail. Co. 225 
 Andrew v. Moorhouse 479, 480 
 Anna Kimball, The 478 
 Anonymous 465 
 v. Jackson 195 
 Ansell v. Waterhouse 111, 516, 593 
 Armory v. Delamire 654 
 Armsworth v. South-Eastern Rail. 
 
 Co. 692 
 
 Artaza v. Smallpiece 465, 466, 467 
 Arthur v. The Schr. Cassius 655 
 
 Ashe v. De Rossett 666 
 
 Ashmole v. Wainwright 433, 589 
 
 Aspinaft v. Pickford 453 
 
 Aston v. Aston 378, 520 
 
 v. Heaven 493, 520 
 
 Atkinson v. Stephens 673 
 
 Attersol v. Bryant 598 
 
 Attorney-Gen. v. Great Northern 
 
 Rail. Co. 379 
 
 v. Great Southern 
 & Western 
 Rail. Co. 359 
 
 Austin v. Great Western Rail. Co. 514, 
 
 674 
 o. Manchester, Sheffield, 
 
 &c. Rail. Co. 20, 47, 242, 
 
 632 
 
 Ayles v. South-Eastern Rail. Co. 680 
 
 B. 
 
 Bacon, The H. D. 454 
 
 Baggs v. Linseed 453, 463, 466 
 
 Bailey v. Shaw 454, 650, 654 
 
 Baker v. Bolton 676 
 
 u. Steamship City of New 
 
 York 582 
 
XVI 
 
 TABLE OF CASES. 
 
 Baldwin v. Bennett 666 
 
 v. Cole 697 
 
 Balfe v. West 14 
 
 Ballentine v. North Missouri R. R. 
 
 Co. 166, 276 
 
 Ballon v. Farnum 690 
 
 Baltic, The 683 
 
 Baltimore, &c. R. R. Co. v. Green 286 
 v. Skeels 205, 
 226, 237 
 Baltimore, &c. R. R. Co. v. Schu- 
 macher 286. 650 
 Bancroft's Case 189 
 Bank of Carlisle v. Graham 4 
 Barford v. Nelson 646 
 Barker v. Macrae 649 
 v. Midland Rail. Co. 368, 404 
 r. Taylor 323 
 Barns v. Ward 680 
 Barrett v. Great Northern & Mid- 
 land Rail. Co. 405, 410 
 Barton v. Hanson 111, 645 
 v, Wolliford 178 
 Bastard v. Bastard 478 
 Basten v. Butler 484 
 Bates v. Stanton 345 
 Batson ». Donovan 26, 45, 153, 234, 450 
 Baxendale, In re, and Bristol & 
 
 Exeter Rail. Co. 404 
 
 Baxendale «. Eastern Counties 
 
 Rail. Co. 390,417, 437 
 v. Great Eastern Rail. 
 
 Co. 223,250,260,417 
 v. Great Western Rail. 
 
 Co. 393,395,412,413, 
 414, 422 
 v. Hart 228 
 
 v. London & South- 
 western Rail. 
 Co. 406, 424 
 
 v. North Devon Rail. 
 
 Co. 389 
 
 v. West Midland Rail. 
 
 Co. 381 
 
 Baxter v. Leland 186 
 
 Beadle v. Eastern Counties Rail. 
 
 Co. 368, 405 
 
 Beal v. South Devon Rail. Co. 265 
 v. Thompson 482 
 
 Beardslee v. Richardson 648 
 
 Bearse v. Ropes 651 
 
 Beauchamp v. Powley 26, 44, 623, 618 
 Beaver, The 664, 684 
 
 Becford v. Crutwell 45, 172, 629, 646 
 Beck v. Evans 45, 219 
 
 Bedford, The 582 
 
 Beebe v. Robert 608 
 
 Beecher v. Great Eastern Rail. Co. 623 
 Behrens «. Great Northern Rail. 
 
 Co. 231 
 
 Belfast & Ballymena Rail. Co. v. 
 Keys 183, 643 
 
 Belger v. Dinsmore 235, 236 
 
 Bell v. Midland Counties Rail. Co. 677 
 v. Reed 89 
 
 Bella, The 582 
 
 Ben Adams, The 290, 320 
 
 Bennet v. Dutton 516 
 
 v. Manchester, Sheffield, & 
 
 Lincolnshire Rail. Co. 374, 
 380 
 v. Peninsular Steamboat 
 
 Co. 12, 76, 89, 493, 640 
 Benson v. Davison 641 
 
 v. Duncan , 673 
 
 Berket v. Whitehaven Junction 
 
 Rail. Co. 681 
 
 Bernal v. Pim 466, 469 
 
 Bernstein v. Baxendale 224 
 
 Betts v. Farmers' Loan, &c. Co. 276 
 Bexer v. Tomlinson 97 
 
 Bignold v. Waterhouse 26, 215 
 
 Binns v. Pigot 460, 468 
 
 Birkett v. Willan 172, 308 
 
 Birley v. Gladstone 475 
 
 Black v Baxendale 299, 300, 659 
 
 v. Caddell 692 
 
 v. Rose 477 
 
 Blackman v. London, Brighton, 
 
 &c. Co. 501 
 
 Blackmore (or Blakemore) v. Bris- 
 tol & Exeter Rail. Co. 10 
 Blackpool Board of Health v. Ben- 
 nett 371, 558 
 Blake v. Midland Rail. Co. 691, 693 
 Blakely v. Dickson 479, 480, 481 
 Blakie v. Stembridge 186, 621 
 Blanchard v. Isaacs 117, 160 
 Blanck v. Solly 478, 487 
 Bliven v. Hudson River R. R. Co. 343 
 Blossom v. Dodd 211 
 Blosson v. Smith 314, 319 
 Bloxam v. Sandars 451 
 Blum v. Marks 354 
 Bock v. Gorrissen 455, 463 
 Booking v. Jones 5b0 
 Bodenham v. Bennett 26, 46, 172, 308 
 Bodley v. Reynolds 299 
 Boehm v. Combe 156 
 Boggs v. Martin 469 
 Bolton v. Lancashire & Yorkshire 
 
 Rail. Co. 352 
 
 Bomar v. Maxwell 115 
 
 Boney v. The Huntress 75, 290, 320 
 Boson v. Sanfold 75, 594, 621 
 
 Bosworth v. Heme 372 
 
 Botch v. Smith 495 
 
 Bothlingk v. Inglis 351 
 
 Boulter v. Webster 692 
 
 Bourne v. Gatliffe 813 
 
 Bowlin v. Nye 697 
 
 Bowman v. Brown 630 
 
 Boyce v. Anderson 89. 188, 494 
 
 ». Bayliffe 660, 664, 669, 578, 687 
 
TABLE OP CASES. 
 
 xvu 
 
 Boyce v. Chapman 105, 109 
 
 Boys v. Pink 158, 225, 231 
 
 Braeegirdle v. Hincks 630 
 
 Brandt v. Bowlby 661 
 
 Branley v. South-Eastern Bail. Co. 417, 
 
 432 
 Brass v. Maitland 281 
 
 Braunberger v. Cleis 691 
 
 Brazier v. Polytechnic Institution 510 
 Bremner v. Williams 619 
 
 Brettan v. Barnaby 314 
 
 Briddon v. Great Northern Bail. 
 
 Co. 291 
 
 Brideport, The 582 
 
 Bridge v. Grand Junction Railway 
 
 Co. 512 
 
 Bridges v. North London Bail. Co. 504 
 Brind v. Dale 43, 62, 64, 73, 636 
 
 Bristol & Exeter Bail. Co. v. Gar- 
 ton 415 
 British Columbia, &c. Co. a. Net- 
 
 tleship 647, 670 
 
 Brittain v. Cromford Canal Co. 442 
 Broadwater v. Bolt 8 
 
 Broadwell v. Butler 291 
 
 Brockway v. Lascala 494, 521 
 
 Bromley v. Coxwell 598 
 
 Brooke v. Pickwick 117, 208, 219, 234, 
 
 523 
 
 Brooklyn, The 683 
 
 Brotherton v. Wood 514, 693 
 
 Brown v. Clayton 89 
 
 v. Gillam 468 
 
 v. Hodgson 440, 600, 603 
 
 v. Macgregor 692 
 
 v. Tanner 477, 480 
 
 v. Wilkinson 673 
 
 Browne v. Hare 352, 617 
 
 Brunt v. Midland BaiL Co. 224 
 
 Bryne v. Boadle 603 
 
 Buckland v. Johnson 596 
 
 Buckle v. Wrightson 558 
 
 Buckley v. Great Western Bail. 
 
 Co. 311, 312, 318 
 
 Buckman v. Levi 161, 647 
 
 Buckmaster v. Eastern Counties 
 
 Bail. Co. 516 
 
 Buddie v. Wilson 592, 594 
 
 Buel v. New York Central B. B. Co. 512 
 Buller v. Fisher 582 
 
 Burke v. Manchester, &c. Bail. Co. 510 
 Burns v. Cork & Bandon Bail. Co. 643 
 Burrell v. North 158, 228 
 
 Burroughs v. Bayne 342, 596 
 
 v. Norwich, &c. Bail- 
 way Co. 216 
 Buskirk v. Purrington 460 
 Bussey v. Donaldson 621 
 Butcher v. London & South- West- 
 ern Rail. Co. 116, 140, 317, 661 
 Butler v. Basing 109, 654 
 v. Heane 216 
 
 Butler v. Woolcott 456, 460, 464 
 
 Butt v. Great Western Rail. Co. 224, 
 630, 644 
 Butterfield v. Forrester 513 
 
 Buxton v. North-Eastern Rail. Co. 611, 
 
 680 
 Byrne v. Boadle 503 
 
 Caflin v. Boston B. B. Co. 597 
 
 Cahill v. London & North-Western 
 
 Rail. Co. 133, 139 
 
 Cailiff v. Danvers 10, 172 
 
 Cairns v. Robins 10, 12, 44, 635 
 
 Calder and Hebble Navigation Co. 
 
 v. Pilling 369 
 
 CaldweU v. Ball 617 
 
 v. Murphy 690 
 
 v. New Jersey Steamboat 
 
 Co. 580 
 
 Caledonian Bailway Co. v. Cole 671 
 
 Camden & Amboy B. B. Co. v. 
 
 Belknap 117, 207 
 
 Camp v. The Marcellus 582' 
 
 Campbell v. Thompson 678 . 
 
 Campion v. Colvin 471, 475 
 
 Capper v. Foster 482 
 
 Card v. New York, &c. Bailway Co. 528 
 Cardwell v. New Jersey Steamboat 
 
 Co. 167 
 
 Cargo of the Anna Kimball 478 
 
 Cargo ex Galam 479, 480 
 
 Carpue v. London, Brighton, &e. 
 
 Bail. Co. 499, 592 
 
 Carr v. Lancashire & Yorkshire 
 
 Rail. Co. 47, 239, 248 
 
 Carruthers v. Shelden 449 
 
 Case v. Storey 660 
 
 Caterham Bail. Co. 410, 412 
 
 Cates v. Railton 349 
 
 Catley v. Wintringham 313 
 
 Cattlin v. Hills 582 
 
 Cavenagh v. Such 105, 106 
 
 Cayle's Case 64 
 
 Cayuga, The 583 
 
 Chandler v. Sprague 614 
 
 Chapin v. Norton 671 
 
 Chapman v. Allen 2 
 
 v. Rothwell 679 
 
 Chase v. Westmore 465, 477 
 
 Chesapeake, The 682 
 
 Chicago, &c. B. R. Co. v. Morris 695 
 v. Scott 312 
 Chickering v. Fowler 314 
 
 Child v. Hudson Bay Company 367 
 v. Sands 595 
 
 Children of Forrest v. Clerkington 692 
 Chilton v. London & Croydon Bail. 
 
 Co. 368, 631 
 
 China, The 582 
 
xvm 
 
 TABLE OP CASES. 
 
 Chinnery v. Veale 596 
 
 Chippendale v. Lancashire & York- 
 shire Kail. Co. 47, 248 
 Christie e. Griggs 494, 495, 610, 519 
 v. Lewis 470, 471 
 v. Rowe 479, 481 
 Cincinnati, &c. R. R. Co. v. Mar- 
 cus 133 
 Citizen's Bank v. Nantucket 
 
 Steamboat Co. 68, 69, 647 
 
 City of Chicago v. Major 692 
 
 City of Paris, The 583 
 
 Clark v. Barnewell 185, 651 
 
 v. Druisina 479 
 
 v. Lowell, &c. R. R. Co. 460 
 
 v. M'Donald 188 
 
 v. Richards 89, 594 
 
 v. Rochester & Syracuse R. 
 
 R. Co. 186, 276 
 
 v. Spruce 597 
 
 Clarke v. Earnshaw 10, 12 
 
 v. Gray 26, 196, 210 
 
 v. Stanford 560 
 
 Clay v. Willan 196 
 
 Clayards v. Dethick 513 
 
 Clayton v. Hunt 215 
 
 Cleveland, &c. R. R. Co. v. Per- 
 kins 245 
 Cloud i>. Turfery 557 
 Clunnes v. Pezzay 654 
 Coate v. Chaplain 599, 609 
 Cobb v. Howard 575 
 Cobban v. Downe 156, 158, 647 
 Cobden v. Bolton 218, 228 
 Cock v. Taylor 480 
 Cockburn v. Alexander 482, 487 
 Cockle v. London & South-West- 
 
 ern Rail. Co. 605, 506 
 
 Coggs v. Barnard 10, 11, 12, 13, 15, 30, 
 69, 76, 465, 592 
 Cole v. Goodwin 147, 164, 206 
 
 Coleman v. South-Eastem Rail. Co. 681 
 Colepepper v. Good 161, 228 
 
 Collard v. South-Eastern Rail. Co. 669 
 Collet v. London & North- Western 
 
 Rail. Co. 499 
 
 Collier, The 473 
 
 Collman v. Collins 460 
 
 Colombo, The 186, 656 
 
 Colonel Ledyard, The 661 
 
 Colvin v. Newberry 471 
 
 Commonwealth v. Power 516 
 
 Conard v. Atlantic Ins. Co. 614 
 
 Condon v. Great Southern & West- 
 ern Rail. Co. 693 
 Conger v. Hudson River R. R. Co. 264 
 Cook v. Chaplain Trans. Co. 595 
 v. Comm'rs of Hamilton 671 
 v. Gowan 483 
 v. Jennings 479 
 Coombe v. Bristol & Exeter Rail. 
 Co. 600, 609 
 
 Coombs v. Bristol & Exeter Rail. 
 
 Co. 319, 465 
 
 Cooper v. Bill 352 
 
 v. Chitty 596 
 
 v. South 683 
 
 v. South- Western RaU. Co. 390, 
 412 
 v. Willomatt 597 
 
 Cdppen v. Braithwaite 577 
 
 Copper Co. v. Copper Mining Co. 666 
 Corbett v. Packington 599 
 
 v. Parkington 2 
 
 Corbin v. Leader 677, 580 
 
 Cork v. Taylor 480 
 
 Cork Distilleries Co. v. Great South- 
 ern & Western Rail. Co. 320 
 Corman v. Eastern Counties Rail. 
 
 Co. 499 
 
 Corry v. Thames Iron Works Co. 671 
 Corsant v. Griffin 668 
 
 Coulton v. Ambler 442 
 
 Covell v. Laming 682 
 
 Covington v. Willan 196, 210 
 
 Coweta Falls Manufacturing Co. 
 
 v. Rogers 671 
 
 Cowley v. Mayor of Sunderland 438 
 Cox v. Harden 614 
 
 v. London & North-Western 
 Rail. Co. 185 
 
 Crafter v. Metropolitan Rail. Co. 500 
 Cranston v. Marshall 575 
 
 v. Philadelphia Insurance 
 Co. 468 
 
 Crawshay v. Eades 352 
 
 v. Homfray 464 
 
 Crickmar v. Eastern Counties Rail. 
 
 Co. 412 
 
 Croft v. Alison 682 
 
 Crofts v. Waterhouse 111, 494, 510, 
 520, 521, 523 
 Crosby v. Pitch 89, 164 
 
 Cross v. Andrews 2 
 
 Crouch ». London & North- West- 
 ern Rail. Co. 90, 148, 
 235, 280, 282, 342, 418, 
 420, 428, 641, 652, 661 
 v. Great Northern Rail. 
 
 Co. 147, 428 
 
 Crowley v. Cohen 449 
 
 Crozier v. Smith 474, 481 
 
 Cullen v. M'Alpine 629, 648 
 
 Culpepper v. Good 157 
 
 Cunningham v. Dorsey 666 
 
 Curence v. Minturn 179 
 
 Curling v. Long 482 
 
 Curtis v. Drinkwater 522, 683 
 
 D. 
 
 Dakin v. Brown 
 v. Oxley 
 
 681 
 484 
 
TABLE OF CASES. 
 
 XIX 
 
 Dale v. Hall 75, 76, 156, 437, 592, 645 
 Dalston v. Janson 631 
 
 Dalton v. South-Eastern Rail. Co. 680, 
 688, 693 
 Daniel v. Metropolitan Rail. Co. 503 
 510, 539 
 Dansey v. Richardson 12 
 
 Dartnall v. Howard 10 
 
 Davey v. Mason ■ 161, 228 
 
 Davis v. Garrett 83, 148, 172, 183, 291, 
 
 292 
 
 v. James 602, 614 
 
 v. Mann 513 
 
 v. Meeting-H. in Lowell 366 
 
 v. M'Kinney 608 
 
 v. North-Western Rail. Co. 671 
 
 v. William 216 
 
 Davison v. Gwynne 184 
 
 Dawes v. Peck 600, 614 
 
 Dawson v. Manchester, Sheffield, 
 
 &c. Rail. Co. 510 
 
 Day v. Holloway 672, 685 
 
 v. Owen 616 
 
 v. Ridley 651 
 
 De Haven v. Kensington Bank 3 
 
 I)e la Rue v. Fortescue 413 
 
 De Mattos v. Gibson 666, 690 
 
 De Mott v. Laraway 89 
 
 De Rothschild v. Royal Mail Steam 
 
 Packet Co. 193 
 
 De Symonds v. De la Cour 650 
 
 Dean v. Keat 10 
 
 v. Vaccaro 661 
 
 Dearden v. Townsend 543, 544 
 
 Delaware Bank v. Smith 597 
 
 Denison v. Wataga 577, 579 
 
 Denton v. Great Northern Rail. 
 
 Co. 249 
 
 Devereux v. Barclay 290, 320, 597 
 Dickins v. New York Central R. R. 
 
 Co. 693 
 
 Dickinson v. North-Eastern Rail. 
 
 Co. 679 
 
 Dickon v. Clifton 592, 596 
 
 Dickson v. Baldwin 349 
 
 Dill v. South Carolina R. R. Co. 655 
 Dingle o. Hare 671 
 
 Ditcham v. Chivis 629, 636 
 
 Ditchburn v. Spracklin 683 
 
 Dixon v. Hamond 345 
 
 v. Yates 351 
 
 Dobson v. Hudson 569 
 
 Dodson v. Wentworth 349, 351 
 
 Dodwell v. University of Oxford 369 
 Donahoe v. Kettell ' 479 
 
 Donaldson v. Mississippi & Mis- 
 souri R. R. Co. 692 
 Doorman v. Jenkins 9, 10, 20 
 Dougal u. Kemble 480, 481 
 Dowell v. General Steam Naviga- 
 tion Co. 582 
 Down v. Fromont 217 
 
 Drakeley v. Grigg 621 
 
 Duck u. Addington 558 
 
 Duckworth v. Johnson 691, 693 
 
 Dudlev v. Smith 44, 520, 521, 523 
 
 Duff v. Budd 45, 286, 302, 305, 320 
 Dulop v. Thome 449 
 
 Dunham v. London & North- West- 
 ern Rail. Co. 264 
 Dunlap v. International, &c. Co. 98 
 Dunlop v. Higgins 671 
 v. Lambert 600, 601 
 Dusar v. Murgatroyd 661 
 Duthie v. Hilton 480 
 Dutton v. Solomanson 600, 613 
 Dwiglit v. Brewster 89, 596 
 
 E. 
 
 Eads v. The H. D. Bacon 466 
 
 Eagle v. White , 285, 310 
 
 Eames v. Cavarock 653 
 
 Earle v. Cadmus 219 
 
 East India Co. v. Pullen 156, 161, 647 
 East Tenn., &c. R. R. Co. v. Nelson 514 
 v. Whittle 
 
 258 
 Eastern Counties Rail. Co. v. 
 
 Broom 531 
 
 Eckert i>. Long Island R. R. Co. 512 
 Edwards v. Brewer 349 
 
 v. Great Western Rail. Co. 
 
 152, 428, 435 
 
 v. Sherratt 450 
 
 Eldridge v. Long Island R. R. Co. 512 
 
 Elizabeth English, The, 582 
 
 Elkins v. Boston & Maine R. R. Co. 
 
 602, 609 
 
 Ellis v. Hunt 349, 351, 352 
 
 v. Pearce 571 
 
 v. Thompson 575 
 
 v. Turner 9, 76, 105, 172 
 
 Elsee v. Gateward 14 
 
 Elwell v. Grand Junction Rail. Co. 639 
 
 Ely v. Ehle 349 
 
 Emblen v. Myers 671 
 
 Emery v. Fanning 596 
 
 v. Hersey 89 
 
 Emilie, The 583 
 
 Emma Johnson, The 651 
 
 Empire State, The 582 
 
 Erskine v. Thames 285 
 
 Evans v. Bristol & Exeter Rail. 
 
 Co. 338 
 
 v. Hutton 198, 643 
 
 v. Martlett 614, 617 
 
 v. Williams 649 
 
 Evansville, &c. R. R. Co. v. Duncan 
 
 507 
 
 «.Young 205, 
 
 226, 249, 
 
 276 
 
XX 
 
 TABLE OP CASES. 
 
 Everett v. Saltus 460, 603 
 
 Excelsior, The 355 
 
 Express Co. v. Kountze 205, 226 
 
 F. 
 
 Fairchild a. Call Stage Co. 690 
 
 .v. Slocum 164 
 
 Fairmount, &c. Rail. Co. v. Stutlev 
 
 507, 513 
 Faith v. East India Co. 467, 475 
 
 Farnham v. Camden, &c. B. R. Co. 
 
 226, 237, 249 
 Farra v. Adams 185 
 
 Farrant v. Barnes 281 
 
 Favorita, The 582 
 
 Fenton v. Dublin Steam Packet Co. 473 
 Fessler v. Love 666 
 
 Field v. Newport, Abergavenny, &c. 
 
 Rail. Co. 488 
 
 Figgins v. Cogswell 628 
 
 Fillebrown v. Grand Trunk Rail. 
 
 Co. 206, 217, 235 
 
 Finncane v. Small 10 
 
 Fish v. Kelly 14 
 
 Fisher v. Lee 442 
 
 Fitch v. Newberry 148, 460 
 
 Flash, The 655 
 
 Fletcher v. Tayleur 666 
 
 Flinn v. Perkins 680 
 
 Flint v. Norwich, &c. Transp. Co. 577 
 Flower v. Adam 512 
 
 Flowers v. South-Eastern Rail. Co. 225 
 Ford v. Mitchell 160 
 
 Forward v. Pittard 69, 156, 166, 285, 
 
 314 
 
 Foster v. Colby 611, 614 
 
 v. Frampton 250, 253 
 
 u. President, &c, of Essex 
 
 Bank 24 
 
 Fowler v. Kymer 471 
 
 Fox v. Harding 671 
 
 v. Nott 479 
 
 Foy v. London, Brighton, &c. Rail. 
 
 Co. 504 
 
 Fragano v. Long 156, 600, 609 
 
 Francis v. Cockerell 510, 519, 538 
 
 v. Dubuque, &e. R. R. Co. 318 
 
 Franklin v. South-Eastern Rail. 
 
 Co. 680, 693 
 
 Fraser v. Hopkins 683 
 
 Fray v. Vowles 672 
 
 Freeman v. Birch 603, 614 
 
 v. East India Co. 483 
 
 Frink v. Schroyer 690 
 
 Fromont v. Coupland 111, 645 
 
 Frost v. Williams 556 
 
 Fuller v. Bradley 469 
 
 v. Naugatuck R. R. Co. 494, 507 
 Fulver v. Burke 608 
 
 G. 
 
 Gabay v. Lloyd 188 
 
 Gainsford v. Carroll 672 
 
 Gale v. Laurie 76 
 
 Galena R. R. Co. v. Roe 148, 512 
 
 v. Yarwood 386 
 
 Gannell t>. Ford 47, 264 
 
 Garnett v. Willan 9, 308 
 
 Garside v. Trent & Mersey Nav. 
 
 Co. 170,285,311,313,314 
 
 Garton v. Bristol & Exeter Rail. Co. 
 
 261, 402, 406, 412, 424, 
 
 425, 533 
 
 v. Great Western Rail. Co. 400 
 
 Gass v. New York, &c. R. R. Co. 257 
 
 Gatliffe v. Bourne 12, 79, 292, 302, 
 
 313, 314, 642 
 
 Gee v. Lancashire & Yorkshire Rail. 
 
 Co. 667 
 
 Gelen v. Hall 543 
 
 Gellan v. Simpkin 479 
 
 Gellard «. Lancashire & Yorkshire 
 
 Rail. Co. 680 
 
 General Steam Nav. Co. v. Mann 584 
 George v. Claggett 455 
 
 George and Richard, The 695 
 
 Georgia Bridge Association v. 
 
 Loonies 690 
 
 Geraldes v. Denison 482 
 
 Gibbon v. Paynton 26, 178, 193, 208 
 Gibbons v. United States 54 
 
 Gibson v. Bradford 581 
 
 v. Carruthers 351 
 
 v. Culver 285, 314 
 
 Gilbert v. Dale 157, 227, 338, 652 
 
 v. Schwenck 635 
 
 Giles v. Taff Vale Rail. Co. 596 
 
 Gilkison v. Middleton 474 
 
 Gillingham v. Dempsey 661 
 
 Gisbourn ». Hurst 70, 456 
 
 Gledstanes v. Allen 474 
 
 Glover v. London & North- West- 
 ern Rail Co. 596 
 Goddard v. Grand Trunk Rail. Co. 672 
 Godfrey v. Furzo 600 
 Goff v. Clinkard 172, 186, 621 
 v. Great Northern Rail. Co. 531, 
 589 
 Golden v. Manning 285, 311 
 Gold-Hunter, The 76, 661 
 Goody v. Penny 444 
 Gore v. Norwich, &c. Co. 117 
 Gosling v. Birnie 342, 345 
 Gouger v. Jolly 217 
 Gough i>. Brian 635, 608 
 Govett v. Radnidge 592, 694, 595 
 Grace Girdler, The 682 
 Grafton, The 314 
 Grantham Canal Nav. v. Hall 442 
 Graves v. Arnold 591 
 Gray v. Carr 475 
 
TABLE OP CASES. 
 
 XXI 
 
 Gray v. Wilson 464 
 
 Great North. Rail. Co. v. Harrison 133 
 v. Hawcroft 
 
 249, 542 
 
 v. Morville 241 
 
 v. Shepherd 133 
 
 138, 140, 528, 
 
 537 
 
 Great Western Railway 'of Canada 510 
 
 Great West. Eail. Co. v. Blake 511, 680 
 
 v. Blower 278 
 
 v. Crouch 309,310 
 
 «. Goodman 116, 
 
 248, 318, 368, 
 
 370 
 
 v. Hawkins 247 
 
 v. Redmayne 
 
 300, 659, 
 
 v. Eimell 108 
 
 v. Sutton 425, 
 
 426, 437 
 
 v. Talley65,317, 
 
 523 
 
 v Toorner 422 
 
 Green v. London General Omnibus 
 
 Co. 531 
 
 v. The New Eiver Co. 650 
 
 Greene v. Elmslie 179 
 
 Greenland a. Chaplin 513, 514 
 
 Greeves v. West India, &c. Co. 483 
 Gregory v. Piper 682 
 
 ». West Midland Eail. Co. 269 
 Griffen v. Colver 666 
 
 Griffin v. Langfield 600 
 
 Griffith v. Ingledew 614 
 
 Griffiths v. Lee 337, 651, 652 
 
 Grill v. General Iron Screw Col- 
 lier Co. 8 
 Grosvenor v. New York, &c. E. E. 
 
 Co. 156 
 
 Grote v. Chester & Holyhead Eail. 
 
 Co. 510 
 
 Gulick v. Grover 621 
 
 H. 
 
 Hackett v. B., C , & M. E. E. Co. 659 
 Hadley v. Baxendale 654, 661 
 
 Hagerstown Bank v. Adams Ex. Co. 349 
 Hale v. New Jersey Nav. Co. 164 
 
 Hales v. London & North- Western 
 
 Eail. Co. 148, 659 
 
 Hall v. Cheney 629 
 
 !>. Conn. Eiver Steamboat Co. 494 
 
 v. Hollander 635, 608, 676 
 
 v. Renfro 264 
 
 Hallet v. Wigram 673 
 
 Hambly v. Trott 594, 599 
 
 Hamilton v. M'Pherson 666 
 
 Hamlen v. Great Western Eail. Co 664 
 
 Hamlin v. Great Northern Eail. Co. 
 
 299, 516 
 Hammack v. White 503 
 
 Hammond v. Rogers 673 
 
 Hand «. Baynes 669 
 
 Hanley v. Harlem E. E. Co. 492, 519, 
 
 539 
 Hanson v. Meyer 466 
 
 Hard man ". Willcock 224 
 
 Harrington v. Lyles 89 
 
 Harris v. Cockermouth & Working- 
 ton Eail. Co. 387, 388, 392 
 v. Costar 44, 622, 634 
 
 v. Northern Indiana R. R. 264 
 v. Packwood 26, 196, 219, 234 
 v. Rand *, 285 
 
 Harrison v. London, Brighton, & 
 South Coast Rail Co. 264, 268, 277, 
 279, 529 
 Harriss v. Edmonds 487 
 
 Harrold v. Great Western Rail. Co. 504 
 Hart v. Baxendale 156, 224, 233 
 
 v. Sattley 611 
 
 v. Shaw 479 
 
 Hastings v. Pepper 89 
 
 Hatchwell v. Cooke 43, 487 
 
 Hawkes v. Smith 185, 337, 651 
 
 Hawkins v. Finlayson 650 
 
 v. Great Western Eail. Co. 242 
 v. Hoffman 117, 597 
 
 v. Phythian 188 
 
 Hay v. Gronoble 671 
 
 v. Le Neve 582 
 
 Hayman v. Baymond 629, 636 
 
 Hayn v. Corbett 179 
 
 Hays v. Kennedy 75 
 
 Hearn v. London & South-West- 
 
 ern Eail. Co. 234 
 
 Hearne v. Garton 282 
 
 Heathe v. Brewer 559 
 
 Hedges v. Hudson Eiver E. Co. 290, 
 298, 348 
 Heinrich, The 180 
 
 Helsby v. Mears 111, 645 
 
 Henderson (or Anderson) v. Lon- 
 don & North- Western Eail. Co. 225 
 Herman v. Goodrich 314 
 
 Heugh v. London & North- West- 
 ern Eail. Co. 320 
 Higginbotham v. Great Northern 
 
 Bail. Co. 185 
 
 Higgins v. Brethertoh 457 
 
 v. Senior 608 
 
 Hill v. Trent & Mersey Nav. Co. 197, 
 
 208 
 Hinckley u. Beckwith 666, 671 
 
 Hinton v. Dibbin 8, 22, 35, 228, 234 
 Hodgman v. West Midland Rail. 
 
 Co. 273, 277 
 
 Hodgson v. Loy 352, 450, 614 
 
 v. Tullarton 43 
 
 Hodsoll v. Stallebrass 535 
 
XXII 
 
 TABLE OF CASES. 
 
 Hoffman v. Carow 597 
 
 Holderness v. Collinson 453 
 
 Holdridge v. Utica, &c. R. R. Co. 117 
 Holister v. Nowlen 117, 164, 206, 216 
 Holl v. Griffin 342 
 
 Hollingworth v. Brodrick 172 
 
 Hoist v. Pownal 352, 353 
 
 Holt v. The Inhabitants of Penob- 
 scot 827 
 Hopkins v. Westoott 131, 209, 219, 237 
 Hopper v. Reeve 682 
 Horncastle v. Farran 467, 477 
 Howe v. Oswego, &c. R. R. Co. 164 
 v. Stewart 354 
 Howland v. Greenway 314, 577 
 v. The Lavinia 579 
 Hoyt v. Allen 637 
 Hozier v. Caledonian Rail. Co. 410 
 Hudley v. Clarke 300 
 Hudson v. Baxendale 183 
 v. Midland Rail. Co. 181, 523 
 Hughes v. Great Western Rail. Co. 248, 
 291, 628 
 Hunnewell v. Taber 184 
 Hunt v. Cleveland 651, 652 
 v. Hechts 611 
 v. Hoyt 690 
 Hunter v. Fry 481, 487, 657 
 v. M'Gown 437, 673 
 v. Potts 172 
 v. Prinsep 479, 480 
 v. Westbrook 602 
 Hurrell v. Ellis 559 
 Hurry v. Mangles 349 
 Hurst v. Great Western Rail. Co. 534, 
 
 535 
 
 Hutchinson v. Guion 281 
 
 Hutton v. Bolton 204 
 
 v. Bragg 470 
 
 v. Warren 574 
 
 Hyde v. Trent & Mersey Nav. Co. 105, 
 
 156, 161, 170, 285, 306, 313, 314 
 
 Hderton v. Atkinson 649 
 
 Ilfracombe Public Conveyance Co. 
 v. London & South-Western Rail. 
 Co. 414 
 
 Illinois, The 582 
 
 Illinois, &c. R. R. Co. v. Adams 242 
 Illinois Central Rail. Co. v. Bar- 
 ron 690, 693 
 Imhoffu. Chicago, &c. R. R. Co. 507 
 Indianapolis, &c. R. R. Co. v. Allen 205, 
 226, 277 
 Indin v. Samuel 628 
 Ingalls v. Bills 512 
 Ingate v. Christie 70, 645 
 Ingram v. Law son 691 
 
 Ionic, The 62 
 
 Ireguist v. Morewood 186 
 
 Ireland v. Johnson 628 
 
 Island City, The 582 
 
 Israel v. Clark 620, 683 
 
 Izett v. Mountain 26, 196 
 
 Jackson & Great Northern R. R. 
 
 Co. v. Moore - 659 
 
 Jackson v. Isaacson 478 
 
 v. Rogers 149, 150, 153, 450, 
 
 453 
 
 v. The Julia Smith 655 
 
 v. The Juliana 655 
 
 v. Tollit 521 
 
 Jacobs v. Nelson 613, 630 
 
 James v. Griffin 348 
 
 James (Lady) v. East India Co. 481 
 
 Jarvis v. Rogers 468 
 
 Jefferies v. Great Western Rail. Co. 596, 
 
 617 
 JefEersonville R. R. Co. v. Cleveland 348 
 v. Cotton 318 
 v. Hendrick's 
 
 Admr. 507 
 v. White 597 
 Jencks v. Coleman 516, 573 
 
 Jennings v. Great Northern Rail. 
 
 Co. 544 
 
 Jesson v. Solly 480 
 
 John v. Bacon 511, 680 
 
 Johnson v. Hill 460, 468 
 
 v. Midland RaU. Co. 89, 150, 
 
 153, 239, 280, 359 
 
 v. Wigona, &c. R. R. Co. 494 
 
 Jones v. Eastern Counties Rail. 
 
 Co. 397, 410 
 
 Jones v. Boyce 512, 521 
 
 Jordan v. James 448 
 
 Joseph v. Knox 600, 603, 614 
 
 Joseph Harray, The 564 
 
 Joshua Barker, The 661 
 
 Josling v. Irvine 666, 671 
 
 K. 
 
 Kearney v. Boston & Worcester 
 
 Rail. Co. 676 
 
 Kemp v. Clark 480 
 
 v. Coughtry 111 
 
 Kendal v. London & South-West- 
 ern Rail. Co. 189, 273 
 Kent v. Elstob 513, 582 
 v. Great Eastern Rail. Co. 533 
 v. Great Western Rail. Co. 591 
 Ker v. Mountain 518 
 Kern v. Deslandes 474 
 Kerr v. The Norman 655 
 
TABLE OP CASES. 
 
 XX111 
 
 Kerr v. Willan 
 
 210 
 
 Kettle v. Bromrell 
 
 10 
 
 v. Broomsall 
 
 31 
 
 Keys v. Belfast Bail. Co. 
 
 109 
 
 v. Delvin 
 
 690 
 
 Kieran v. Sandars 
 
 342 
 
 Kimball v. Rutland & Burlington 
 
 Rail. Co. 269 
 
 Kimsey v. Crocker 690 
 
 King v. Franklin 663, 568, 578 
 
 v. Lenox 111 
 
 v. Meredith 600 
 
 v. Pippit 628 
 
 v. Richards 345, 460 
 
 v. Shepherd 75, 179, 651 
 
 Kinnear v. Midland Rail. Co. 462 
 
 Kirby v. Great Western Rail. Co. 30, 
 
 47, 258, 262, 283 
 
 Kirchner v. Venus 465, 478 
 
 Kirkman v. Shawcross 454 
 
 Klauber v. American Express Co. 164 
 
 Knight v. Portland, &c. R. R. Co. 611, 
 
 612 
 
 v. Quarles 675 
 
 Koch v. Branch 597 
 
 Kramer v. Waymark 695 
 
 Kremer v. Southern Express Co. 310 
 
 Lack v. Seward 513, 582 
 
 Laclough v. Towle 342 
 
 Lafaye v. Harris 147 
 
 Lamb v. Camden, &c. R. R. Co. 83, 226, 
 257, 285, 292 
 v. Parkraan 75 
 
 Lambert v. Robinson 337 
 
 Lane b. Cotton 74, 143, 150, 154, 450, 466 
 v. Old Colony R. R. 469 
 
 v. Penniman 470 
 
 Lapham v. Greene 608 
 
 Laugher v. Pointer 106 
 
 Laurent v. Vaughan 659 
 
 Laveroni v. Drury 172 
 
 Law v. Hatcher 603 
 
 Lawrence v. Aberdeen 188 
 
 v. Housatonic Rail. Co. 685 
 v. Matthews 345 
 
 Leame v. Bray 682 
 
 Le Conteur v. London & South- 
 western Rail. Co. 116, 140, 224, 317, 
 
 542 
 Leeds v. Wright 349 
 
 Leeds & Liverpool Canal Co. v. 
 
 Hustler 443 
 
 Leeman v. Gordon 679 
 
 Lees v. Manchester Canal Co. 443 
 
 Leeson v. Holt 193, 209 
 
 Legge v. Tucker 694 
 
 Lehman v. Brooklyn 692 
 
 Leigh v. Smith 159 
 
 Leishman v. London, Brighton, &c. 
 
 Co. 500, 501 
 
 Lengridge v. Dorville 13 
 
 Leonard v. Winslow 453 
 
 Le Peintur v. South-Eastern Rail. 
 
 Co. 668 
 
 Leuckhart v. Cooper 456 
 
 Levene v. Great Western Rail. Co. 634, 
 
 639 
 Levering v. Union Transportation, 
 
 &c. Co. 651 
 
 Levi v. Waterhouse 219 
 
 Levy v. Barnard 450 
 
 Lewis v. Galena, &c. R. R. Co. 340 
 
 v. Great Western Rail. Co. 259, 
 
 261 
 
 v. M'Kee 480 
 
 Lickbarrow v. Mason 348, 362 
 
 Liddard v. Lopes 483 
 
 Lincoln v. Saratoga & Schenectady 
 
 R. R. Co. 691 
 
 Litt v. Cowley 351 
 
 Little v. Fossett 449 
 
 Lloyd v. Waterford & Limerick 
 
 Rail. Co. 278 
 
 v. West Branch Bank 3 
 
 London & North- Western Rail. 
 
 Co. v. Bartlett 340, 341, 353 
 
 London & North-Western Rail. 
 
 Co. v. Glyn 449 
 
 London & South-Western Rail. 
 
 Co. v. Myres 434 
 
 Long v. Home 519 
 
 Longmore v. Great Western Rail. 
 
 Co. 464 
 
 Lord v. Midland Rail. Co. 30 
 
 Lord Bernard's Case 378 
 
 Louis v. Steamboat Buckeye 661 
 
 Louisiana, The 583 
 
 Lovett v. Hobbs 494 
 
 Lowe v. Booth 46, 172 
 
 Lubbock !\ Inglis 597 
 
 Lucas v. Nockells 477 
 
 Ludwig v. Meyer 285, 659 
 
 Lunburger v. Westcott 235 
 
 Lyle v. Barker 614 
 
 Lyon v. Mells 172, 204, 249 
 
 M. 
 
 M' Andrew v. Electric Telegraph 
 
 Co. 74, 83, 248, 269 
 
 McArthur v. Sears 75 
 
 M'Cahan v. Hirst 596 
 
 M'Cance o. London & North-West- 
 ern Bail. Co. 47, 234, 264, 279 
 M'Carthy v. Dublin, Wicklow, &c. 
 
 Rail. Co. 543 
 
 M'Carty v. Young 10 
 
XXIV 
 
 TABLE OP CASES. 
 
 M'Clures v. Hammond 89 
 
 M'Combie v. Davis 597 
 
 M'Connico v. Stallworth 637 
 
 M'Cotter v. Hooker 648 
 
 M'Court v. London & North-West- 
 ern Kail. Co. 250 
 McDaniel v. Chicago, &c. E. R. Co. 248 
 McFarland v. Wheeler 448 
 M'Gavock v. Puryear 637 
 McGregor v. Kilgore 659 
 M'Guire v. The Golden Gate 510 
 McHenry v. Railroad Co. 75 
 Machu v. London & South- West- 
 1 em Rail. Co. 106 
 M'Intyre v. N. Y. Central R. R. Co. 692, 
 
 693 
 McKean v. Melver 192, 319, 597 
 
 Mackenzie v. Cox 44, 651 
 
 M'Kibbin v. Peck 483 
 
 M'Kichen v. Muir 460 
 
 McKinney v. Neil 492, 519, 651 
 
 Macklin v. New Jersey Steamboat 
 
 Co. 206 
 
 w.Waterhouse 12,162,210,214 
 M'Laughlin v. Prior 473 
 
 M'Lean v. Fleming 475 
 
 McManus v. Crickett 682 
 
 v. Lancashire & York- 
 shire Rail. Co. 149, 
 188, 227, 237, 258, 
 262, 263, 266, 276, 359 
 McMillan v. Michigan Southern, 
 
 &c. R. R. Co. 90, 252 
 
 McPadden v. New York, &c. R. R. 
 
 Co. 507, 519, 539 
 
 M'Question v. Sandfold 651 
 
 Macrow v. Great Western Rail. Co. 133 
 Madden v. Kempster 468 
 
 Maggie Hammond, The 164 
 
 Malpas v. London & South-West- 
 
 ern Rail. Co. 646 
 
 Manhattan Oil Co. v. Camden R. R. 
 
 Co. 257 
 
 Manley v. St. Helen's Canal Co. 438 
 
 Manning v. Hoover 654 
 
 v. Newman 484 
 
 Marfell v. South Wales Rail. Co. 362, 
 
 499 
 v. South- Western Rail. Co. 525 
 Maria Jane, The 473 
 
 Markham v. Brown 516 
 
 Marriott, In re 405, 412, 413 
 
 Marsh v. Home 219, 683 
 
 v. Pedder 477 
 
 Marshall v. York, Newcastle, &c. 
 
 Rail. Co. 116, 605 
 
 Martha, The 651 
 
 Martin v. Great Indian Peninsular 
 
 Rail. Co. 30, 250 
 
 v. Great Northern Rail. Co. 500 
 
 v. Timperley 473 
 
 Martinez v. Gerber 685, 608 
 
 Mary Washington, The 285, 292 
 
 Mashiter v. Buller 480, 481 
 
 Masiter v. Cooper 515 
 
 Mason v. Inhabitants of Ellsworth 690 
 v. Lickbarrow 480 
 
 Master of Gunmakers' Co. v. Tell 369 
 Masters v. Town of Warren 690 
 
 Mastreton v. Mayor of Brooklyn 671 
 Mathews v. Gibbs 482 
 
 Matthews v. Haydon 649 
 
 Maverick v. Eighth Avenue R. R. 
 
 Co. 494, 547 
 
 Maving v. Todd 156, 196, 197, 208, 210 
 Max v. Roberts 50, 594, 627, 629 
 
 May Queen, The 199 
 
 Mayall v. Boston & Maine R. R. 
 
 Co. 602 
 
 Mayhew v. Boyce 521 
 
 v. Eames 213 
 
 v. Herrick 596 
 
 v. Nelson 224 
 
 Mayor v. Humphries «619, 630, 676 
 Mead v. South-Eastern Rail. Co. 611 
 Meade v. Rutledge 666 
 
 Medburyo.N.Y. &ErieR.R.Co. 657 
 Meegs v. The Northerner 582 
 
 Meliorucchi v. Royal Exchange As- 
 surance Co. 367 
 Mercer v. Jones 659 
 Meredith v. Meegh 611 
 Merrick v. Brainard 449 
 Merriman v. The May Queen 651, 652 
 Merritt v. Earle 76 
 Merryweather v. Nixan 111 
 Merwin v. Butler 314 
 Metcalfe v. London, Brighton, & 
 
 South Coast Rail. Co. 109, 223, 603 
 Metcham, Ex parte 558 
 
 Meyers. Chicago, &C.R.R. Co. 196,215 
 Meyerstein v. Barber 696 
 
 Meyler v. Fitzpatrick 345 
 
 Michigan, &c R. R. Co. v. Heaton 205, 
 
 226 
 Middleton ». Fowler 106, 115, 456 
 
 Midland Rail. Co. v. Bromley 116 
 
 Miles v. Bainbridge 484 
 
 v. Cattle 160, 234 
 
 Miller b. Falconer 650 
 
 Milligan v. Wedge 106 
 
 Mills v. Ball 352 
 
 Mississippi Central R. R. Co. v. 
 
 Kennedy 133 
 
 Mitchell v. Scaife 475 
 
 v. Tarbutt 594, 595 
 
 Mobile, &c. R. R, Co. v. Hopkins 143, 
 
 651 
 v. Jarboe 249 
 Moeller v. Young 466, 480 
 
 Moises v. Thornton 628 
 
 Moller v. Leving 481 
 
 v. Young 480 
 
 Montague v. Janverin 43 
 
TABLE OF CASES. 
 
 XXV 
 
 Montgomery, &o. B. B. Co. v. Ed- 
 monds 249 
 Moore v. American Transp. Co. 171 
 v. Wilson 602, 614 
 Moorson v. Page 481 
 Moran v. Portland S. P. Co. 603 
 Moreton v. Hardern 682 
 Morewood v. Pollock 171, 437 
 Morgan v. Cougdon 449 
 v. Insurance Co. of North 
 America 484 
 Morish v. Foote 650 
 Morley v. Gainsford 682 
 Morris v. Eobinson 480, 673 
 Morrow v. Belcher 596 
 Mors v. Slue 75, 179, 438 
 Morse v. Auburn Bail. Co. 566 
 v. Brainard 286, 690 
 Morville v. Great Northern Bail. 
 
 Co. 47 
 
 Moses v. Norris 472, 605 
 
 Mosher v. Southern Express Co. 286 
 Motteram v. Eastern Counties Bail. 
 
 Co. 370 
 
 Mounsey v. Perrott 639 
 
 Mowhawk, The 483 
 
 Muddle v. Stride 82, 172, 182 
 
 Muller v. Gernon 485 
 
 Muloy v. Backer 580 
 
 Munn v. Baker 197, 210 
 
 Munster v. South-Eastern Bail. Co. 130, 
 147, 153 
 Muschamp v. Lancaster & Preston 
 
 Bail. Co. 89 
 
 Myers v. Davis 629 
 
 Mytton v. Cock 31 
 
 v. Midland Bail. Co. 130, 529, 
 
 541 
 
 N. 
 
 Napier v. Glasgow & South- West- 
 ern Bail. Co. 409 
 Nash v. Breeze 639 
 Nathaniel Hooper, The 483 
 Naylor v. Mangles 463 
 Needles v. Howard 663 
 Nellie, The 582 
 Nelson v. Mackintosh 24 
 v. Woodruff 185, 651 
 Nestor, The 466 
 Nettles v. South Carolina E. E. Co. 661 
 New Jersey Express Co. v. Nichols 691 
 New Jersey Steam Nav. Co. v. Mer- 
 chants' Bank 147, 196, 249, 609 
 New Orleans, &c. Insurance Co. v. 
 New Orleans, &c. B. B. Co. 205, 226, 
 
 249 
 New World, The, v. King 111, 494, 650 
 New York, &c. B. B. Co. v. Story 671 
 Newberry v. Colvin 471, 623 
 
 Newborn v. Just 210, 249 
 
 Newman v. Walters 564, 578 
 
 Newport, The 483 
 
 Newson v. Thornton 614 
 
 Newton v. Tring 469 
 
 Niagara, The, v. Cordes 83, 177 
 
 Nicholls v. Lefeuvre 348 
 
 Nichols, The 582 
 
 Nichols v. Bastard 604 
 
 Nicholson v. Bower 349 
 o. Great Western Bail. 
 
 Co. 392, 393, 394, 395 
 
 v. Willan 195 
 
 Nicolson v. Knowles 345 
 
 Norman v. Phillips 602 
 
 North v. London & North- Western 
 
 Bail. Co. 489 
 North Pennsylvania E. E. Co. v. 
 
 Eobinson 691 
 
 Northern Belle, The 168 
 
 Northey v. Eield 352 
 
 Norton v. Tibbett 147 
 
 v. Jones 559 
 
 Notara v. Henderson 185 
 
 Nourse v. Snow 661 
 
 O. 
 
 Oakley v. Portsmouth, &c. Co. 162, 171 
 Ocean Queen, The 582 
 
 O'Connor v. Foster 655 
 
 Ogden v. Marshall 655 
 
 Ogle v. Atkinson 342 
 
 O'Hanlan v. Great Western Bail. 
 
 Co. 670 
 
 Ohio B. E. v. Dunbar 264 
 
 Ohio & Mississippi B. E. Co. v. Tin- 
 
 dal 691 
 
 Ohrloff v. Briscall 184 
 
 Oldfleld v. N.Y. & Harlem E. B. Co. 693 
 Olive v. Eames 159, 160 
 
 One hundred and fifty-one Tons of 
 
 Coal 466 
 
 Oppenheim v. Bussell 456 
 
 Orange County Bank v. Brown 161, 
 
 193, 594 
 
 Orndorff v. Adams Express Co. 226 
 
 Osgood v. Groning 479, 480, 485 
 
 Ostrander v. Brown 314, 319 
 
 Owen v. Burnet 224 
 
 v. Lewyn 597 
 
 Oxlade v. North-Eastern Bail. Co. 78, 
 
 154, 359, 360, 381, 382, 384, 385, 414 
 
 P. 
 
 Packard v. Edman 596 
 
 v. Getman 156, 597 
 
 Page v. Ford 666 
 
 v. Great Northern Bail. Co. 188 
 
 Painter, Ex parte 406, 412 
 
XXVI 
 
 TABLE OP CASES. 
 
 Palmer v. Grand Junction Rail. Co. 72, 
 358, 592 
 v. London, Brighton, & 
 
 South Coast Rail. Co. 389, 
 401, 406 
 Pardee u.Drew 117,193 
 
 Pardington v. South Wales Rail. 
 
 Co. 262, 264 
 
 Parker W.Bristol & Exeter Rail. Co. 587 
 
 v. Flagg 285 
 
 v. Great Western Rail. Co. 89, 
 
 152,372,415,419,421,431, 
 
 v. James 83, 183 
 
 v. Jones 660 
 
 432, 436 
 
 Parkersburgh, The 582 
 
 Parkinson v. Great Western Rail. 
 
 Co. 389, 399 
 
 Parsons v. Gingell 163 
 
 Paterson v. Walace 692 
 
 Patria, The 179 
 
 Patton v. Magrath 171 
 
 Paul v. Birch 476 
 
 Paynter v. James 480 
 
 Pazi v. Shipton 162 
 
 Pearson v. Duane 573 
 
 v . Goschen 474 
 
 Peck v. Neil 492, 519 
 
 v. Weeks 186 
 
 Peek v. North Staffordshire Rail. 
 
 Co. 253, 256, 262, 271, 277 
 
 Pegler v. Monmouthshire Rail. Co. 423 
 Peinteur v. South-Eastern Rail. Co. 666 
 Peninsular & Oriental Steam Nav. 
 
 Co. v. Shand 31, 143, 223 
 
 Pennsylvania R.R.Co.w. Goodman 
 
 679, 686 
 v. M'Closkey's 
 
 Admr. 692 
 
 v. Vandever 691 
 
 v. Zebe 691 
 
 Penrose v. Wilks 479 
 
 Pepper v. South-Eastern Rail. Co. 31, 
 
 283 
 Perkins v. Smith 290 
 
 Perry u. Thompson 219, 236 
 
 Petrie's Executor v. Aitehison 620 
 
 Petty v. Great Western Rail. Co. 505 
 Peytona, The 82, 186, 314 
 
 Phelps v. London & North- Western 
 
 Rail. Co. 130, 132 
 
 Philadelphia & Reading R. R. Co. 
 
 «.Derby 511,512 
 
 Philadelphia, &c. R. R. Co., The 582 
 Philadelphia, &c. R. R. Co. v. How- 
 ard 671 
 Phillips v. Earle 159, 194, 208 
 v. Edwards 196, 248 
 v. Rodie 475 
 Piancianiw. London & South- West- 
 ern Rail. Co. 223, 629 
 Pickard v. Sears . 106 
 
 Pickering v. Barclay 178, 179 
 
 Pickford v. Caledonian Rail. Co. 389, 
 
 399 
 v. Grand Junction Rail. 
 
 Co. 150, 151, 152, 159, 
 416,428, 589, 651 
 Piddington v. South-Eastern Rail. 
 
 Co. 428 
 
 Pierce v. Milwaukie 257 
 
 Pinder v. Wilks 616 
 
 Plant v. Midland Rail. Co. 504, 508 
 
 v. Oxford & Worcester Rail. 
 
 Co 684 
 
 Pollard v. London & South-West- 
 
 ern Rail. Co. 341 
 
 Pope v. The R. B. Forbes 582 
 
 Porter b. Steamboat New England 657 
 Portland Bank v. Stubbs 470 
 
 Portman v. Middleton 666 
 
 Potter v . Laming 614 
 
 Powell v. Holyland 596 
 
 v. Layton 111, 172, 592 
 
 v. Myers 116 
 
 Powles v. Hider 108, 523 
 
 Pozzi v. Shipton 187, 587 
 
 Praeger v. Bristol & Exeter Rail. 
 
 Co. 501 
 
 Prendergast v. Compton 578 
 
 Prentice v. Decker 206, 235 
 
 Price v. The Steamship Uriel 661 
 
 Prior t>. Wilson 666, 671 
 
 Propeller Commerce, The 449 
 
 Purvrance v. Angus 621 
 
 Pym v. Great Northern Rail. Co. 510, 
 
 680 
 
 Quarman v. Burnett 
 Queen, The 
 Quiggen v. Duff 
 Quin v. Moore 
 
 B, 
 
 106, 473 
 583 
 314 
 692 
 
 Race Horse, The 482 
 
 Railroad Co. v. Barrow 511 
 
 Raisin v. Mitchell 582 
 
 Raitt v. Mitchell 477 
 
 Randal v. Roper 666 
 
 Randel v. Brown 468 
 
 Randleson v. Murray 156 
 
 Ranger v. Great Western Rail. Co. 196 
 Ransome v. Eastern Counties Rail. 
 Co. 378, 386, 390, 391, 392, 403, 412, 
 413, 414 
 Ransom v. N. Y. & Erie R. R. Co. 690 
 Raphael v. Pickford 12, 291, 634, 651 
 Rapson v. Cubitt 106 
 
 Ratcliffe v. Davies 2 
 
 Rawson v. Johnson 689 
 
TABLE OP CASES. 
 
 XXV11 
 
 Rayne, Ex parte 673 
 
 Bead v. Great Eastern Rail. Co. 679 
 Redhead ». Midland Rail. Co. 493, 507, 
 538, 618 
 Redmond v. Liverpool, &c. S. S. Co. 314 
 Ree Side, The 186 
 
 Reg. v. Commissioners of Metro- 
 politan Police 558 
 v. Grand Junction Canal Co. 372 
 o. Leicester & Northampton- 
 shire Union Canal Co. 443 
 Rex v. Everett 628 
 v. Frere 368, 531, 543 
 v. Ginever 367 
 v. Ivens 587 
 v. Rawlinson 558 
 v. Spencer 367 
 v. Tappenden 367 
 v. Tone Conservators 444 
 Reyans v. Wise 617 
 Reynolds v. South-Western Rail. 
 
 Co. 507 
 
 Rice v. Baxendale 669 
 
 v. Dublin & Wicklow Rail. Co. 527 
 
 v. Humphrey 459 
 
 v. Ontario Steamboat Co. 661 
 
 Rich v. Kneeland 75, 76 
 
 v. Lambert 651 
 
 Richards v. Gilbert 89 
 
 v. London & South Coast 
 
 Rail. Co. 116, 130, 316 
 
 Richardson v. Atkinson 597 
 
 v. Dunn 600, 613 
 
 v. Nourse 673 
 
 v. Sewell 75, 76, 437, 645 
 
 Rigby v. Hewit 513, 582 
 
 Rigg v. Manchester, &c. Rail. Co. 500 
 
 Riley v. Home 150, 162, 196, 198, 234, 
 
 450 
 
 Ringold v. Haven 661 
 
 Roberts v. Great Western Rail. Co. 188 
 
 v. Ogilby 345 
 
 Robin v. Steward 672 
 
 Robinson v. Amos Austin 697 
 
 v. Baker 460 
 
 v. Dunmore 54, 64, 139, 318, 
 
 614 
 
 v. Great Western Rail. 
 
 Co. 268, 272 
 
 v. London & South-West- 
 
 ern Rail. Co. 278 
 
 v. Read 477 
 
 v. Turpin 313 
 
 Rodringues «. Melhuish 673 
 
 Roe v. Birkenhead Rail. Co. 531 
 
 RoecliSe, The 466 
 
 Rogers v. Head 44 
 
 v. Long Island R. R. Co. 86 
 
 v. Macnamara 659 
 
 Rome R. R. Co. v. Sloan 541 
 
 v. Sullivan 596 
 
 Rooke v. Midland Rail. Co. 464 
 
 Rooth v. North-Eastern Rail. Co. 30 
 
 v. WiUon 14 
 
 Rose v. Allen 310 
 
 Rosetto v. Gurney 481 
 
 Roskell v. Waterhouse 156 
 
 Ross v. Hill 30, 44, 66, 635 
 
 v. Johnson 290, 320, 592, 598 
 
 Rother v. Elton 650 
 
 Rowe v. Pickford 313, 352 
 
 Rowley v. Home 215 
 
 Rumsey v. North-Eastern Rail. Co. 131 
 
 Rushforth v. Hadfleld 452, 453, 456 
 
 Russell v. Livingston 319 
 
 v. Nieman 180 
 
 S. 
 
 Sack v. Ford 186, 623, 625 
 
 St. Cloud, The 625 
 
 St. John, The 583 
 
 St. Louis, &c. R. R. Co. v. Montgom- 
 ery 310, 636 
 v. Thomas 515 
 Sager v. Portsmouth, &c. R. R. Co. 206 
 Salinger v. Simmons 257 
 
 Samuel v. Darch 630 
 
 Sandeman v. Scurr 624 
 
 Sanders v. Vanzeller 480 
 
 Sanderson v. Lamberton 608, 609, 614 
 Sandford v. Housatonic 648 
 
 Sangamon, &c. v. Henry 661 
 
 Sanquer v. London & South- West- 
 ern Rail. Co. 319, 611, 655 
 Sansom v. Rhodes 575 
 Sargent v. Morris 602, 614, 616 
 Saville v. Campion 470, 471 
 Sawyer v. Dulany 493 
 Sayre v. Louisville Union Benevo- 
 lent Association 366 
 Scaife v. Tobin 480 
 Schmertz v. Dwyer 354 
 Schroeppell v. Coming 597 
 Schuster v. M'Kellar 473 
 Scothorn v. South Staffordshire 
 
 Rail. Co. 89, 339, 340, 341 
 
 Scotia, The 582 
 
 Scott v. Lewis 347 
 
 d. London Dock Co. 503 
 
 v. Scott 473 
 
 Scottish Central Rail. Co. v. Fer- 
 guson, &c. Co. 404 
 Scout, The 473 
 Scovill v. Griffith 597 
 Scranton, The 682 
 Scranton, The, and Wm. F. Bur- 
 den 583 
 Sears v. Allen 466 
 Seaton v. Second Municipality 671 
 Seeger v. Duthie 478 
 Seers v. Linseed 479 
 Seger v. Barkhamsted 690 
 
XXV1U 
 
 TABLE OP CASES. 
 
 Segnra v. Reed 
 
 659 
 
 Self v. Dunn 
 
 3 
 
 Sells v. Brown 
 
 513 
 
 Selway v. Holloway 
 
 161, 647 
 
 Senior v. Ward 
 
 681 
 
 Sewall v. Allen 
 
 I'll 
 
 Shand v. Sanderson 
 
 613 
 
 Sharp v. Grey 
 
 493, 510, 519 
 
 Shaw v. South Carolina R. R. Co. 541 
 v. York & North Midland 
 Rail. Co. 33, 246, 631 
 
 Shelbury v. Scotsford 342 
 
 Shenk v. Philadelphia Steam Pro- 
 peller Co. 285, 292 
 Shepherd v. Bristol & Exeter Rail. 
 
 Co. 188, 318 
 
 v. De Bernales 476, 479 
 
 v. Great Northern Rail. 
 
 Co. 117, 523 
 
 v. Milwaukie Gas Light 
 
 Co. 666, 671 
 
 Sheridan v. Brooklyn, &c. R. R. Co. 493 
 
 v. New Quay Co. 343, 612 
 
 Sherman v. Wells 659 
 
 Shields v. Davis 603 
 
 Shiells v. Blackburn 10, 19, 30 
 
 Shillibeer v. Glyn 13 
 
 Shipton v. Thornton 481, 482 
 
 Siboni v. Kirkman 676 
 
 Sidoret v. Brodie 580 
 
 v. Hall 172 
 
 Sills v. Brown 684 
 
 Simmons v. Lillywhite 696 
 
 v. South-Eastern Rail. Co. 667 
 
 Simon v. The Fung Shuey 205, 226 
 
 v. Ward 605 
 
 Simons v. Great Western Rail. Co. 252, 
 
 260, 261, 633 
 
 Sims v. Bond 603, 608 
 
 Siner v. Great Western Rail. Co. 605 
 
 Singleton v. Eastern Counties Rail. 
 
 Co. 513 
 
 Siren, The 582 
 
 Skinner v. London, Brighton, &c. 
 
 Rail. Co. 498 
 
 v. Upshaw 456 
 
 Skipper v. Penn. R. R. 148 
 
 Slade's Case 598 
 
 Slater v. Rink 690 
 
 Sleat v. Fagg 9, 234, 699 
 
 Slim v. Great Northern Rail. Co. 244, 
 
 628, 647 
 
 Small v. Moales 474 
 
 Smeed v. Foord 666 
 
 Smith v. Brown 696 
 
 v. Fuge 683 
 
 v. Goss 349 
 
 v. Great Western Rail. Co. 603 
 
 v. Hopper 591 
 
 v. Home 46, 172, 680 
 
 v. London, Brighton, & South 
 
 Coast Rail. Co. 224 
 
 Smith v. New Haven R. R. 264 
 
 v. North Carolina R. R! Co. 205, 
 237 
 v. Scott 678 
 
 v. Shaw 591 
 
 v. Taylor 111, 645 
 
 v. Terrand 477 
 
 Smurthwaite v. Wilkins 480 
 
 Snee v. Prescott 614 
 
 Snowden v. Davis 447 
 
 Soblomstein, The 482 
 
 Sodergren v. Flight 366 
 
 Solomon o. Philadelphia Steam- 
 boat Co. 285, 292, 297, 348 
 Somans v. Brown 687, 691 
 Soret v. Hobbs 111 
 Soule v. Rodocanachi 651 
 South-Western R. R. Co. v. Paulk 513 
 Southcote's Case 30, 192 
 Southern, &c. R. R. Co. v. Ken- 
 
 drick 507 
 
 Southern Express Co. v. Moon 226 
 
 v. Newby 157 
 
 v. Purcel 205 
 
 v. Shea 286 
 
 Spark v. Heslop 671 
 
 Spatali v. Beneke 477 
 
 Spears v. Hartley 463 
 
 Spencer v. Goulding 649 
 
 Spring v. Haskell 661 
 
 Squire v. New York Central R. R. 
 
 Co. 216 
 
 Stables v. Eley 683 
 
 Staffordshire & Worcestershire Canal 
 
 Co. v. Trent & Mersey Canal Co. 442 
 State of Maryland v. Baltimore 
 
 & Ohio R. R. Co. 692 
 
 Steamboat Co. v. Atkins 449 
 
 Steamboat Farmer v. M'Craw 603 
 
 Stedman v. Western Transp. Co. 226, 
 
 249 
 Steel v. Schomberg 568 
 
 Stephens v. Elwall 290 
 
 Stephenson v. Hart 290, 306, 308, 311, 
 320, 614 
 Stevens i>. Boston, &c. R. R. Co. 460 
 Stevenson v. Blakelock 465 
 
 v. Midland Rail. Co. 632 
 Stewart v. Crawley 186, 187 
 
 v. London & North- West- 
 ern Rail. Co. 131 
 Stoddart's Case 621 
 Stoessiger v. South-Eastern Rail. 
 
 Co. 224 
 
 Stokes v. La Riviere 361 
 
 v. Saltonstall 111, 188, 494, 512, 
 
 651 
 
 Stonard v. Dunkin 345 
 
 Stone v. Ketland 621 
 
 v. Kicowlton 628 
 
 Storer v. Cowen 16 
 
 Storr v. Crawley 286, 308 
 
TABLE OP CASES. 
 
 XXIX 
 
 Story v. New York & Harlem E. E. 
 
 Co. 671 
 
 Stoveld v. Hughes 349 
 
 Streeter v. Horlock 248, 629 
 
 Strick v. Swansea Canal Co. 444 
 
 Strong v. Hart 477 
 
 Strother v, Willan 664 
 
 Stuart v. Isemonger 673 
 
 Sullivan v. Philadelphia, &c. E. E. 
 
 Co. 499 
 
 Sunbolf v. Alford 469 
 
 Sunday v. Gordon 677 
 
 Sutton v. Great Western Bail. Co. 430, 
 
 431 
 
 v. Mitchell 172, 437 
 
 v. South-Eastern Bail. Co. 429, 
 
 430 
 
 Swain v. Shepherd 602, 606 
 
 Swanston v. Garrick 186, 625 
 
 Sweet v. Pym 465 
 
 Swett v. Black 479 
 
 Swigert v. Graham 201. 
 
 Swindler v. Hilliard 171 
 
 Syckel v. The Thomas Euring 179 
 
 Syeds v. Hay 351 
 
 Syms v. Chaplin 107, 167, 225, 637 
 
 Syred v. Caruthers 10 
 
 Tainton v. Prendergast 608 
 
 Talley v. Great Western Bail. Co. 65, 
 
 141 
 Tamar Navigation Co. v. Grand 
 
 Junction Canal Co. 443 
 
 Tamar Navigation Co. v. Wagstaff 443 
 Tamvaeo v. Simpson 477 
 
 Tanner v. Scovell 251 
 
 Tapley v. Martin 479 
 
 Tarbell v. Central Pacific E. E. Co. 
 
 516, 520 
 Tate v. Meek 470, 477 
 
 Tatham v. Hodgson 188 
 
 Tattan v. Great Western Bail. Co. 592, 
 
 593 
 
 Taylor v. Dustin 691 
 
 v. Great Northern Bail. Co. 292 
 
 v. Plumer 345 
 
 v. Eobinson 464 
 
 Telfer v. Northern Bail. Co. 692 
 
 Tell v. Arnold 595 
 
 Ten Eyck v. Harris 320 
 
 Terega v. Pope 655 
 
 Teutonia, The 179, 484 
 
 Theobald v. Eailway Assurance Co. 689 
 
 v. Treggott 649 
 
 Thomas ». Clarke 481 
 
 v. Ehymney Bail. Co. 511, 
 
 612, 680 
 
 Thompson v. Baltimore, &c. B. B. 
 
 Co. 354 
 
 Thompson v. Traves 646, 654 
 
 Thornton, The 583 
 
 Thorogood v. Bryan 218, 513, 522 
 
 v. Marsh 217 
 
 Tilley v. Hudson E. B. Co. 692 
 
 Tobin v. Crawford 480 
 
 Tollemache v. London & South- 
 western Bail. Co. 531 
 Tompkins v. Saltmarsh 647 
 Toomey v. London, Brighton, & 
 
 South Coast Bail. Co. 495 
 
 Tower v. Utica, &c. E. B. Co. 140, 160 
 Towne v. Lewis 596 
 
 Treadwin v. Great Eastern Bail. 
 
 Co. 225 
 
 Trent Navigation v. Wood 75, 76, 77, 
 
 166, 437, 645 
 
 Trevor v. V. and S. E. E. Co. 156 
 
 Trinity House v. Clark 470 
 
 Tucker v. Chaplin 605, 681 
 
 v. Cracklin 594, 629, 635 
 
 v. Walpole 683 
 
 Tuckerman v. Stephens, &c. Trans. 
 
 Co. 286 
 
 Tudor v. Lewis 18 
 
 Tuff o. Warman 512 
 
 Tunnel v. Pettijohn 111 
 
 Tunz v. South-Eastern Bail. Co. 523 
 Turner v. The Black Warrior 651, 652 
 Turnb v. Bethune 468 
 
 Turrel v. Crawley 460 
 
 Tweed v. Martin 683 
 
 Two Friends, The 564 
 
 Tyler v. Morrice 151 
 
 Tysen v. Moore 185 
 
 U. 
 
 Upshare v. Aidee 
 Upton v. Slark 
 
 111 
 
 157 
 
 V. 
 
 Vale v. Bayle 600 
 
 Valpy v. Gibson 352 
 
 Van Casteel v. Booker 617 
 
 Van Winkle v. U. S. Mail Steam- 
 ship Co. 343 
 Vanderplank v. Miller 513, 582 
 Vennal v. Garner 513; 582 
 Vincent ». Bather 621 
 Vinton v. Middlesex E. B. Co. 548 
 Vlierboom v. Chapman 479, 480 
 Vose (Adrax.) v. Lancashire & 
 Yorkshire Bail. Co. 682 
 
 W. 
 
 W. & A. Bail. Co. v. Kelly 600 
 
 Wade v. Leroy 687, 691 
 
THE LAW OF CARRIERS. 
 
 CHAPTER I. 
 
 INTEODU'CTOEY. 
 
 THE PRINCIPLES OP THE LAW OP BAILMENTS. 
 
 Sec. 1. The Principles of Law and Com- Sec. 10. The Conditions of the Country or 
 
 mon-sense. Climate. 
 
 2. Of Bailments. 11. The Condition of the Time and 
 
 3. The Importance of the Subject. Civilization. 
 
 4. Distinction between Duties of 12. The Degrees of Negligence, slight, 
 
 Finder of Chattel and those of ordinary, gross. 
 
 a Bailee. 13. Distinction between Negligence 
 
 5. Different Kinds of Bailment. and Misfeasance. 
 
 6. Degrees of Care and Diligence. 14. Application of the Doctrine of 
 
 7. Circumstances which determine Negligence. 
 
 the Kind and Amount of Dili- 15. Division of Bailments, 
 
 gence. 16. Locatio Opens faciendi. 
 
 8. The Nature and Value of the Ar- 17. Duty of Carrier Bailees. 
 
 tide. 18. Mandatum. 
 
 9. The Customs of the Place and 19. Division of Bailments. 
 
 Trade. 
 
 SEC. 1. The Principles of Law and Common-sense. — The 
 principles upon which all laws are founded are those of com- 
 mon-sense. The truth of such a statement may seem obvious, 
 but it is not the less necessary to state it upon that account. 
 Things that are very true are little better than things that are 
 very false. Ordinary parlance would almost lead one to be- 
 lieve that " truism " is anther name for a lie. There is some 
 importance in the statement that the principles of law and the 
 principles of common-sense are the same. True though it is, 
 many people doubt it. Laymen are apt to regard the maxim 
 that ignorance of law shall not excuse wrong-doing, as abso- 
 lutely unjust. If, however, it could be proved that the prin- 
 ciples of law and the principles of common-sense were the 
 same, the injustice would disappear. It is within the power 
 
 l 
 
a THE LAW OP CARRIERS. 
 
 of each man, by means of ordinary intelligent attention to the 
 conduct of others, to ascertain what his duties are. It is 
 within the power of every sane man to conform his conduct 
 to the laws which are deducible from human habit. It can- 
 not, therefore, be unjust to hold that every man must know 
 the law. True, the laws may be bad. Unless the laws have 
 been formed with regard to the customs and habits of man- 
 kind, they are bad. Unless the needs of mankind have been 
 had regard to, the laws are defective. But where this is not 
 the case, where these considerations have regulated the legis- 
 lature of a country, there can be no hardship in regarding 
 ignorance of the law as no excuse for wrong-doing, for the 
 law is founded on common-sense. 
 
 Sec. 2. Of Bailments. — These principles of common-sense 
 would tell one that when one person delivered an article to 
 another to use in any particular way, and when that other 
 received the article with the understanding that it was to be 
 used in a particular way, and that when it had been so used 
 it was to be returned to the owner, a certain relation existed 
 between the parties. That relation has been called a contract, 
 and such delivery has been designated a bailment. 1 It is evi- 
 dent that it does not matter whether the delivery was made 
 with a view to the simple custody of the article for a certain 
 time, with a view to its being made use of, or with a view to 
 its being carried to a particular place. The relation between 
 the parties is obviously the same in all these cases. There 
 is, first, the delivery which creates a trust in the person re- 
 ceiving the possession of the article ; 2 there is then the express 
 or implied contract by the party to keep or carry, as the case 
 may be ; and there is the express or implied condition to re- 
 deliver the chattel when the objects of the trust shall have 
 been fulfilled. 3 
 
 1 The word "bailment" is derived 8 Cross v. Andrews, Cro. Eliz. 622; 
 from the French word battler, to de- Corbett v. Parkington, 6 Barn. & 
 liver. 2 Bl. Com. 451 ; Jones on Cress. 268 ; Batcliffe v. Davies, Cro. 
 Bailm. 90 ; Story on Bailm. § 2. Jac. 245 ; Walter v. Smith, 5 Barn. 
 
 2 An Essay on the Law of Bail- & Aid. 439. 
 ments, by Sir William Jones, 4th ed., 
 
 § 1, 117. See also 2 Bl. Com. 451. 
 
THE PRINCIPLES OP THE LAW OP BAILMENTS. d 
 
 SEC. 3. The Importance of the Subject. — When goods have 
 been delivered in this way, the relationship which arises be- 
 tween the parties is one of the utmost importance. Any 
 relationship which implies mutual rights and duties has im- 
 portance in the eyes of lawyers ; but a relationship which is 
 constantly being entered upon, a relationship which has a 
 permanent interest for the majority of mankind, is a subject 
 of paramount importance. 
 
 SEC. 4. Distinction between Duties of Finder of Chattel and 
 those of a Bailee. — Distinction is a kind of definition. To say 
 what a thing is not, is one way of pointing out what it is. 
 This trust-contract of bailment is easily to be distinguished 
 from the relationship which exists between the finder of an 
 article which has been lost, and the owner of the lost chattel. 
 In the former case, there is an express or implied duty which 
 binds the individual to do certain things, and to exercise cer- 
 tain faculties ; in the latter, there is no very obvious duty con- 
 nected with the found property. If it is not worth the owner's 
 while to make diligent search for the lost article, it cannot be 
 held to be the duty of the finder to be very diligent in his care 
 of it. It was chance that bailed it to him, and the trusts of 
 fortune are not to be construed strictly. 
 
 Sec. 5. Different Kinds of Bailment. — This delivery may, as 
 we have seen, take place with a view to the carriage of the 
 goods, and therefore the law of carriers is a branch of the law 
 of bailments. For such carriage, an individual may be paid 
 or unpaid, and the duties of the bailee must necessarily differ 
 according to such circumstances. 1 It is evident that when 
 a neighbor does one a favor, one must not expect such care in 
 
 1 A person who keeps a ferry for 81 Penn. St. 95. But in all eases of 
 
 Lis owe convenience, and the conven- this character the question as to what 
 
 icnce of customers to his mill, and constitutes ordinary care -will depend 
 
 transports persons to and from the upon the character of the property, 
 
 mill free of charge, is only bound to and it is not always true that he is 
 
 exercise ordinary diligence. Self v. only hound to that degree of diligence 
 
 Dimn, 42 Ga. 528. And the same is which he exercises in reference to his 
 
 true as to a gratuitous bailee. Lloyd own property. Bank of Carlisle v. 
 
 v. "West Branch Bank, 15 Penn. St. Graham, 79 Penn. St. 106. 
 172 ; De Haven v. Kensington Bank, 
 
4 THE LAW OP CARRIERS. 
 
 the doing as he has a right to expect when he has paid him 
 for his labor, his time, and his diligence. A sense of honor 
 might make a man more earnest in doing that for which he 
 was not to be remunerated. But the common experience of 
 mankind will teach every one that this scrupulousness is very- 
 rare, and that if you do not pay for care and diligence you are 
 not likely to get them. Even where the labor is undertaken, 
 for friendship's sake, without any remuneration, he who trusts 
 his neighbor has a right to expect some exercise of prudence 
 upon the part of him to whom he gives his property in keep- 
 ing ; 1 and the question which is involved in the law of bail- 
 ments, and therefore in the law of carriers, is the amount of 
 care which a man has a right to expect from another to whom 
 his goods are intrusted, under the various circumstances of 
 delivery, and the amount of the responsibility of him to whom 
 the goods are given, for neglect. 
 
 SEC. 6. Degrees of Care and Diligence. — In deciding this 
 question, several others must necessarily be considered. 
 " There are," as Sir William Jones remarks, " infinite shades 
 of care and diligence, from the slightest, momentary thought 
 or glance of attention to the most vigilant anxiety and solici- 
 tude, but extremes in this case, as in most others, are inappli- 
 cable to practice ; the first extreme would seldom enable the 
 bailee to perform the condition, and the second ought not in 
 justice to be demanded ; since it would be harsh and absurd 
 to exact the same anxious care which the greatest miser takes 
 of his treasure from every man who borrows a book or a seal. 
 The degrees, then, of care for which we are seeking must lie 
 somewhere between these extremes ; and by observing the 
 different manners and characters of men we may find a cer- 
 tain standard which will facilitate our inquiry ; for, although 
 some are excessively careless and others excessively vigilant, 
 and some through life, others only at particular times, yet we 
 may perceive that the generality of rational men use nearly 
 the same degree of diligence in the conduct of their own 
 
 1 In the Roman Law, the manda- gratuitously, was stamped with iu- 
 tarius who failed to discharge faith- famy. D. iii. 2 I. 
 fully his duty, although performed 
 
THE PRINCIPLES OP THE LAW OP BAILMENTS. 5 
 
 affairs ; and this care, therefore, which every person of com- 
 mon prudence and capable of governing a family takes of his 
 own concerns is a proper measure of that which would uni- 
 formly be required in performing every contract, if there were 
 not strong reasons for exacting in some of them a greater and 
 permitting in others a less degree of attention. Here, then, 
 we may fix a constant determinate point, on each side of which 
 there is a series consisting of variable terms tending indefi- 
 nitely towards the above-mentioned extremes, in proportion 
 as the case admits of indulgence or demands rigor; if the 
 construction be favorable, a degree of care less than the stand- 
 ard will be sufficient ; if rigorous, a degree more will be re- 
 quired ; and, in the first case, the measure will be that care 
 which every man of common sense though absent and inattentive 
 applies to his own affairs ; in the second, the measure will be 
 that attention which a man remarkably exact and thoughtful 
 gives to the securing of his personal property." 1 
 
 Sec. 7. Circumstances 'which determine the Kind and Amount 
 of Diligence. — But in deciding the question of what consti- 
 tutes diligence, many circumstances must be taken into con- 
 sideration. What is negligence in one set of circumstances 
 is diligence in another. What would be carelessness in one 
 climate would not be carelessness in another. These circum- 
 stances, which must be understood in deciding upon all ques- 
 tions as to the sufficiency of the care exercised in a bailee's 
 trust, may be classed under four heads : 1. The nature and 
 value of the article ; 2. The customs of the place and trade ; 
 3. The conditions of the country or climate ; and 4. The con- 
 ditions of the time and civilization. 2 
 
 SEC. 8. The Nature and Value of the Article. — If an article 
 is so large that it cannot be carried away, there is no necessity 
 to fear theft. If it be of such a nature that it will not be 
 damaged by rain, it is unnecessary to see that it is housed. 
 And a man who has such articles in keeping will not be guilty 
 of negligence for leaving them exposed to the night prowlers 
 or the rain. Thus a block of marble is not without value, yet 
 
 1 Jones on Bailm., 3d ed., pp. 4, 5. 
 
 2 Bank of Carlisle v. Graham, 79 Peiin. St. 106. 
 
6 THE LAW OP CARRIERS. 
 
 ■who can steal it ? On the other hand, a bag of gold is likely 
 to be stolen, because facility is a temptation. A bank note, 
 although of greater value than a sovereign, is not so likely to 
 be purloined, because it may, through stoppage at the bank, 
 be valueless in the thief's hands, and might even lead to de- 
 tection and punishment. Again, a man who carries glass with 
 as little care as he would iron, is guilty of negligence. The 
 same care need not be taken of the canvas upon which a pic- 
 ture is about to be painted as of that upon which a picture 
 actually is painted. All these cases show that the amount of 
 negligence, in any case, is not to be ascertained without a 
 careful reference to the nature and condition of the article 
 bailed, and also show that the amount of negligence is always 
 proportioned to the possibly foreseen or foreknown degree of 
 danger of loss or damage. 
 
 SEC. 9. The Customs of the Place and Trade. — If a man has 
 been in the habit of using a certain stable without a lock, and 
 the bailee of his horse, aware of this custom, used the same 
 stable, he would not be guilty of negligence in case the horse 
 was stolen. But not only have such individual habits an in- 
 fluence in the decision of the question as to negligence, but 
 certain customs of trade will also upon occasion relieve a 
 bailee who conformed to the custom from any culpability 
 arising from the loss or damage of the bailor's chattel. What 
 every one else does without danger, it is fair to argue, may be 
 done by me without danger too. And when, in spite of the 
 general safety of articles bestowed in a certain way, a chattel 
 in the possession of a bailee, and bestowed according to the 
 custom of the trade, is lost or damaged, it would be unjust to 
 hold that the chance mishap had made him guilty of negli- 
 gence, which is a certain condition of the mind of the indi- 
 vidual, and is not the omission or act itself. What no ordinary 
 man can foresee, no ordinary man is to be punished for not 
 foreseeing. The habits and customs of a trade are a sufficient 
 guide for the actions of most men; for we cannot suppose 
 that a certain act in connection with business has become 
 habitual without there being some reason for it. It is evident 
 that a custom of trade, the course of business, or the practice 
 
THE PRINCIPLES OP THE LAW OP BAILMENTS. 7 
 
 of a place, may be sufficient to exonerate a bailee who has 
 complied with one or other of these from any loss or damage 
 which may have arisen in consequence of such compliance. 
 
 Sec. 10. The Conditions of the Country or Climate. — Men 
 do not turn their horses into a quagmire any more than ants 
 carry out their pupae into the frost. It is such wisdom as is 
 manifested in these acts that constitutes what is called dili- 
 gence, and it is a want of the ordinary knowledge which each 
 man acquires by means of experience which constitutes negli- 
 gence. Thus there is no want of care in him who takes out 
 a book in a summer day and leaves it on his own lawn. The 
 same act done under clouds in mid-winter would be negligent. 
 The man who lies on his back on a hill-side and stares up into 
 the sky is running little or no risk if the weather is fine, but 
 the same gazing at the same sky, where the stars ought to be, 
 would be rash, if he had a rail under his neck and a rail under 
 his feet and the express was due. Of course these are extreme 
 cases, but they indicate the mental condition, in relation to 
 certain external circumstances, which is the reason for thei^e 
 being such a thing as the law of negligence. 
 
 SEC. 11. The Condition of the Time and Civilization. — A 
 man who left his front door open in a city would be extremely 
 careless, but a man might do the same thing in the country 
 without incurring censure. There is nothing more certain than 
 that the value of facts varies in different ages and countries. 
 What was regarded as negligence in the time of our great- 
 grandfathers is not the same thing that is negligence to-day. 
 What was diligence then may be negligence now. A circum- 
 stance is only to be rightly understood in its connection with 
 other circumstances ; and to ascertain what is negligence, one 
 must understand to some extent the nature and spirit of the 
 times. A gang of robbers in our neighborhood would make 
 us more careful of our own property, and therefore those 
 whose property we have in keeping have a right to expect an 
 equal amount of care for their interests. In lawless times it 
 might have been negligence not to have possessed a blunder- 
 buss, but that cannot be said of to-day. Where the laws are 
 bad, an individual's own care is the more necessary. A man 
 
O THE LAW OP CARRIERS. 
 
 on an island need not build a wall to keep out his neighbor's 
 cattle, and so the police of a country are a kind of wall around 
 a man's dwelling ; the existence of such an institution will 
 necessarily lighten the responsibility of each private individual 
 for neglect. All these circumstances must be weighed and 
 considered, if we would arrive at any correct conclusion with 
 regard to the negligent conduct of an individual. 
 
 SEC. 12. The Degrees of Negligence, slight, ordinary, gross. — 
 As negligence can only exist in the mind, it is well clearly 
 to understand what it is, and in what degrees it may exist. 
 Lawyers have distinguished (1) slight neglect 1 (the levissima 
 culpa of the Roman lawyers), which is a want of very scrupu- 
 lous carefulness, from (2) ordinary neglect (the levis culpa of 
 the Roman law), which is a want of that ordinary care which 
 a man bestows upon his own affairs, and from (3) gross neglect 
 (the lata culpa of the civil law), which is a very great want 
 of care, which, in consequence of the evil it causes and the 
 mischief it does, has by many writers been considered as 
 equivalent to fraud, or inconsistent with good faith ; 2 but, on 
 the other hand, it has sometimes been regarded as nothing 
 more than ordinary negligence, with " a vituperative epithet" 
 added to it. 3 It is, however, to be clearly distinguished from 
 fraud. It is unphilosophical to confound two causes which 
 differ widely from one another because their effects are the 
 same ; and there is no reason for regarding gross negligence 
 as equivalent to fraud except in so far as it is a violation of 
 good faith. But slight negligence and ordinary negligences 
 are in the same way violations of good faith, although in a 
 less degree and with consequences less hazardous. But the 
 mental conditions which afford the truest ground of distinc- 
 
 1 With each of these there was in (London, 1871), § 11, p. 11; 1 Sm. 
 the Roman law the correlation of its L. Ca. 196 ; Grill v. Gen'l Iron Screw 
 opposite: 1. Levissima diligentia, slight Collier Co., L. R. 1 C. P. 612 ; Wil- 
 diligence ; 2. Diligentia, ordinary dili- son v. Brett, 11 M. & W. 115. See 
 gence ; and 3. Emctissima diligentia, also Wyld v. Pickford, 8M.&W. 461 ; 
 extraordinary diligence. Hinton v. Dibbin, 1 Q. B. 661 ; Gibbs, 
 
 2 Jones on Bailm. 21 ; Story on C. J., Broadwater v. Blot, Holt, 547, 
 Bailm. § 18. cf. Marfell v. S. Wales Railway, 29 
 
 » Campbell's Law of Negligence L. J. 315 C. P. 
 
THE PEINCIPLES OP THE LAW OF BAILMENTS. 9 
 
 tion between acts, in relation to gross negligence and to fraud, 
 are- totally different. In the one, the characteristic is a want 
 of activity, a want of plan, a heedlessness and purposelessness ; 
 in the other, the characteristic is an activity in plotting, a 
 secrecy of plan, a contrivance, and a carefulness which is un- 
 dertaken with a view of bringing about a mischievous end. 
 The end may be the same in both cases, but surely the means 
 are different. A pistol is- not a dagger, because they will both 
 kill a man. 
 
 Sec. 13. Distinction between Negligence and Misfeasance. — 
 There is a distinction between negligence and misfeasance. 
 Negligence is some carelessness in the performance of a con- 
 tract, while misfeasance is carelessness in contravening the 
 contract. Thus when a parcel containing country bankers' 
 notes was delivered to a carrier, without any notice of its 
 value, to be carried by a mail coach, and was accepted by him 
 to be so carried, and it was in contravention of this agreement 
 sent by a different coach and was lost, this was held by Bay- 
 let, J., to be a case of misfeasance. 1 • So when the master of 
 a ship trading between Hull and Gainsborough — after notice 
 by the proprietors of the vessel that they would not be respon- 
 sible for any loss unless it was occasioned by a want of care 
 in the master — took on board the plaintiff's goods to be car- 
 ried from Hull to Stockwith, a place between Hull and Gains- 
 borough, and the vessel passed Stockwith -without delivering 
 the goods, and sunk, without any negligence upon the part of 
 the master, before it reached Gainsborough, this was held to 
 be a case of misfeasance upon the part of the defendant's 
 servant. 2 
 
 Sec. 14. Application of the Doctrine of Negligence. — Negli- 
 gence, then, being such as we have described it above, it is of 
 importance to understand in what way the law adapts and 
 applies these doctrines with regard to its degree. First, then, 
 when the bailment is for the sole benefit of the bailor, it is 
 evidently just that the law should demand only slight diligence 
 upon the part of the bailee, and that consequently the bailee 
 
 1 Sleat v. Fagg, 5 B. & Aid. 342. See also Gamett v. Willan, 5 B. & Aid. 53. 
 
 2 Ellis v. Turner, 8 T. R. 531. 
 
10 THE LAW OF CAEEIEES. 
 
 should, in case of the loss or damage of the article, only be 
 liable for gross negligence. 1 Second, when the bailment is 
 for the sole benefit of the bailee, a very great amount of care 
 is properly demanded, and the bailee is properly held respon- 
 sible for a very minor degree of negligence. 2 There is, of 
 course,' a kind of bailment which holds an intermediate place 
 between these two. It is a delivery for mutual benefit. Each 
 party is to be advantaged by the bailment. In this case the 
 law expects ordinary diligence, or such attention to the object 
 of the bailment as a man ordinarily bestows upon business 
 matters, and therefore ordinary neglect will in such a case 
 render the bailee liable for loss of or injury to the articles 
 bailed. 3 This last kind of bailment is that which exists be- 
 tween those who deliver goods to be carried and those who 
 carry goods for hire. In many cases it is evident that the 
 determination as to the precise degree of negligence is a ques- 
 tion which may be best left to the jury, and this is really what 
 is done. 4 From all the principles which have been stated 
 above, and from those principles of common-sense with which 
 the principles of jurisprudence are indissolubly associated, it 
 is evident that a bailee is not to be held responsible for that 
 which no amount of care upon his part could have avoided. 
 Thus unavoidable accident, a robbery, or other casualty which 
 could in no way be attributable to the fault of the bailee, will 
 relieve him from consequences of the loss or destruction of 
 the property which is in his keeping. 5 A man can deprive 
 himself of this immunity by special contract, as we shall see 
 hereafter, and he is sometimes deprived of it by the special 
 policy of the law. 
 
 1 Doorman v. Jenkins, 2 Ad. & El. ed. ; Kettle v. Bromrell, Willes, 121 ; 
 356. Shiells e. Blackburne, 1 H. Bl. 162 ; 
 
 2 Blakemore or Blackmore v. B. & Dean v. Keate, 3 Camp. 4 ; Dartnall 
 Exeter Railway, 8 E. & B. 1035 ; 27 v. Howard, 4 B. & C. 345 ; Doorman 
 L. J. 167 Q. B. ; M'Carthy«. Young, v. Jenkins, 2 Ad. & El. 256; Cairns 
 3 L. T. Rep. K. s. 785. v. Robins, 8 M. & W. 258 ; Wilson v. 
 
 8 Vaughan, J., 3 Bing. N. C. 477. Brett. 11 M. & W. 115 ; Syred t>. 
 
 4 Clarke v. Earnshaw, Gow, 30. Caruthers, 1 E. B. & E. 469 ; Einn- 
 
 6 See Coggs v. Barnard, 2 Ld. cane v. Small, 1 Esp. 315 ; Cailiff v. 
 
 Raym. 909; 1 Sm. L. Ca., 147, 4th Danvers, 1 Peake's N. P. 155. 
 
THE PRINCIPLES OP THE LAW OP BAILMENTS. 11 
 
 Sec. 15. Division of Bailments. — The division of bailments 
 made by Lord Holt, in Coggs v. Barnard, 1 has been modified 
 more than once. He arranged bailments under six heads, as 
 follows : 1. Depositum : A bare naked bailment of goods 
 delivered by one man to another to keep for the use of the 
 bailor. 2. Commodatum : When goods or chattels that are 
 useful are lent to a friend gratis to be used by him. 3. Lo- 
 catio rei : Where goods are lent to the bailee to be used by him 
 for hire. 4. Vadium, or Pawn. 5. Locatio opens faciendi : 
 Where goods are delivered to be carried, or something is to 
 be done about them, for a reward to be paid to the bailee. 
 6. Mandatum: A delivery of goods to somebody who is to 
 carry them, or do something about them gratis. 
 
 In this work we have only to do with the fifth and sixth of 
 these classes, and we need not inquire whether Lord Chief 
 Justice Holt's classification is correct, as Mr. Smith 2 has 
 asserted, or incorrect, as Sir William Jones attempted to 
 prove. 3 We will consider these in their order. 
 
 Sec. 16. Locatio Operis faciendi. — Where goods are de- 
 livered to be carried, or something is to be done about them, 
 for a reward to be paid to the bailee. 
 
 Where one man pays another for his labor or care, he has 
 a right to expect that the labor or care will be bestowed ac- 
 cording to agreement. When this is not done, he has a cause 
 of complaint and a cause of action. It is evident that a man 
 can buy his neighbor's attentive diligence just as he can buy 
 his cloth or hire his labor or services ; but, as Lord Chief 
 Justice Holt said in Coggs v. Barnard, 4 the bailment may be 
 made to " one that exercises a public employment, or to a pri- 
 vate person." If goods are placed in the hands of those who 
 profess skill, the bailor has a right to expect skill ; if he 
 places his goods in the hands of an amateur, he must not be 
 surprised if he gets bad workmanship. The same rule evi- 
 dently applies to those who profess the trade of carriers, and 
 it is prudent in the law to have declared that when goods are 
 
 1 Coggs v. Barnard, 1 Sm. L. Ca. 8 Jones on Bailm. 36. See also 
 147, 4th ed. Story on Bailm. §§ 4-7. 
 
 a 1 Sm. L. Ca., 6th ed., 189. 4 1 Sm. L. Ca. 177, 6th ed. 
 
12 THE LAW OF CARRIERS. 
 
 placed in the hands of such persons, who are to be paid for 
 their trouble, they " are bound to answer for their goods at 
 all events." " The law charges this person thus intrusted to 
 carry goods against all events but acts of God and of the enemies 
 of the king." 1 
 
 SEC. 17. Duty of Carrier Bailees. — The demands of the 
 law on, and therefore the liabilities of, common carriers are 
 much in excess of those which belong to other bailees. Wher- 
 ever circumstances will induce one man to trust another, there 
 is evidently a necessity for more severe penalties in case of 
 the breach of trust than if those circumstances had not ex- 
 isted, and it is upon this ground that the above distinction has 
 been drawn between professed carriers of wares and those 
 who are not so professed. If a man hold himself out for 
 employment, there is an implication in his act that he is fit to 
 do the work. We have seen that the duties of ordinary bailees 
 do not extend beyond ordinary diligence and care, 2 the meas- 
 ure of which might be the care which a prudent owner would 
 take of his own goods ; but exceptional cases require excep- 
 tional rules, and it is upon that account that law has distin- 
 guished between the cases of bailment to innkeepers and 
 common carriers, and the cases of bailment to ordinary 
 bailees. In every case, however, where the bailee is to be re- 
 warded for his diligence, he must use reasonable precautions 
 and take prudent care. Thus in one of the above-mentioned 
 cases a chronometer was sent to a watchmaker to repair. 
 The watchmaker allowed the chronometer to remain in his 
 shop, where his servant was in the habit of sleeping. The 
 chronometer was stolen by the servant, and the watchmaker 
 was held liable for the larceny. The decision in this case 
 was upon the ground that the watchmaker, as bailee, had not 
 taken reasonable care of the bailor's property, and this was 
 
 1 See Bennett v. The Peninsular phael v. Pickford, 5 Man. & G. 551. 
 
 Steamboat Co., 6 C. B. 775. See See also 19 & 20 Vict. c. 60, § 17. 
 also, as to liabilities of common car- 2 Clarke v. Eamshaw, Gow, 30 ; 
 
 riers, Marklin v. Waterhouse, 5 Bing. Holt, C. J., Coggs v. Barnard, 1 Sm. 
 
 212 ; Gatliffe v. Bourne, 4 Bing. N. C. L. Ca. 177, cf. notes 193 ; Dansey v. 
 
 314 ; Cairns v. Robins, 8 M. & W. 258 ; Richardson, 3 E. & B. 144 ; 23 L. J. 
 
 Wyld v. Pickford, 8 M. & W. 443 ; Ra- 217 Q. B. 
 
THE PEINCIPLES OP THE LAW OF BAILMENTS. 13 
 
 proved by the fact that he had been more careful to secure 
 the safety of his own. He had placed the watches "belonging 
 to himself in a place where they were inaccessible to the 
 servant. 
 
 Sec. 18. Mandatum is a delivery of goods to somebody 
 who is to carry them, or do something about them gratis. 
 
 A very strict construction of such a contract as against the 
 bailee would be eminently unjust. Therefore, no action will 
 lie for the non-performance of the contract, because it is a 
 nudum pactum, as it is not founded on a valuable consider- 
 ation. To allow mere promises to be a foundation of an 
 action at law would be impolitic ; but where, in pursuance of 
 such a promise, an individual has undertaken some labor for 
 another, or where he has begun the performance of his empty 
 agreement, there is every reason in the world why he should 
 be held liable for any wanton negligence in such performance 
 or such labor. The goods were trusted to his keeping upon 
 the understanding that they were to be restored, and if, 
 through his culpable carelessness, the articles are wasted or 
 destroyed, in fairness he ought to be held liable for the loss 
 sustained by the owner. 1 The case of Coggs v. Barnard 2 de- 
 cided this point. The declaration was for the damage in 
 transitu, by the defendant's negligence, of goods belonging to 
 the plaintiff, and it was held that when a man undertakes to 
 carry goods safely and securely, he is responsible for any dam- 
 age they may sustain in the carriage, through his neglect, 
 though he was not a common carrier, and was to have nothing 
 for the carriage. So in another case, where the owner of a 
 horse sent it for the night to a neighbor, who turned it out 
 after dark into his pasture-field, which was separated from 
 another field by a fence which the owner of the neighboring 
 field was bound to repair. The fence, however, had not been 
 repaired, and, during the night, the horse fell from the one 
 field into the other through one of the gaps, and was killed. 
 In this case, it was held that the owner of the field into which 
 
 1 Lengridge v. Dorville, 5 B. & Bing. 464 ; Slrilliber v. Glynn, 2 M. & 
 Aid. 117 ; Wheatley v. Low, Cro. W. 143. 
 Jao. 668; Whitehead v. Greetham, 2 2 1 Sm. L. Ca., 177, 6th ed. 
 
14 THE LAW OP CARRIERS. 
 
 the horse was turned, although a gratuitous bailee, might 
 maintain an action against the proprietor of the neighboring 
 field whose duty it was to repair the hedge, and recover the 
 value of the horse. 1 It is evident, from the whole circum- 
 stances of the case, that a mandatary of animals is bound to 
 feed and take care of them during the bailment. A gratuitous 
 bailee is also bound, if he has undertaken the performance of 
 anything, to use such skill as he possesses. 2 
 
 Sec. 19. Division of Bailments. — For convenience, bail- 
 ments may be, and have already been, 8 divided into three 
 classes : First, those in which the trust is exclusively for the 
 benefit of the bailor ; Second, those in which the trust is ex- 
 clusively for the benefit of the bailee ; and, Third, those in 
 which the trust is for the mutual benefit of the bailor and the 
 bailee. The first of these includes the carriage of goods with- 
 out hire, and the last the carriage of goods for hire. We will 
 speak of these classes in their order. 
 
 1 Rooth v. Wilson, 1 B. & Aid. 59. performance of its duties necessary, 
 
 2 Wilson v. Brett, 11 M. & W. Elsee v. Gateward, 5 T. E. 143 ; Balfe 
 113. See, with regard to what v. West, 13 C. B. 466 ; Fish v. Kelly, 
 amounts to such an undertaking, 17 C. B. N. s. 194. 
 
 office, or employment as will make a 8 1 Sm. L. Ca. 224, 6th English ed. 
 
CARRIERS WITHOUT HIRE. 
 
 15 
 
 CHAPTER II. 
 
 CARRIERS WITHOUT HIRE. 
 
 Sec. 20. Duty imposed upon Bailees by Sec. 25 
 Law. 
 
 21. Gratuitous Bailee, or Carrier 20 
 
 without Hire, chargeable for 
 Gross Neglect. 
 
 22. Reason of the Distinction. 
 
 23. Gross Negligence, what it is. — 
 
 Degrees of Attention. — De- 
 grees of Negligence generally 
 a Question for Jury. 
 
 24. What constitutes Care or Negli- 
 
 gence to be judged in relation 
 to Facts. — Illustrations. 
 
 How the Amount of Care or Dili- 
 gence is to be estimated. 
 
 Duties of Bailee relative to Na- 
 ture of Article. 
 
 The Amount of Care to be taken 
 by Gratuitous Bailees. 
 
 28. Another Criterion. 
 
 29. Doctrine in Shiells v. Blackburne. 
 
 30. Modification of Duties by Special 
 Agreement. — Promises to keep 
 and to keep safely. 
 
 31. Duties of Bailee who promises to 
 keep safely. 
 
 27. 
 
 SEC. 20. Duty imposed upon Bailees by Law. — Certain 
 duties of care and prudence are imposed by law upon those 
 who undertake to carry the goods of another gratuitously, and 
 who, in performance of that agreement, hegin the work that 
 they promised to do. 1 It is a necessity of a trust which has 
 
 1 It is held that a mere mandatary 
 is only liable for gross negligence. 
 Stanton v. Bell, 2 Hawks (N. C), 
 115 ; Anderson v. Foresman, Wright 
 (Ohio), 598 ; Sadowsky v. McFarland, 
 3 Dana (Ky.), 205 ; Beardslee v. 
 Richardson, 11 Wend. (N. Y.) 25; 
 Tracy v. Wood, 3 Mas. (U. S.) 132 ; 
 Bland v. Wormaok, 2 Mnrph. (N. C.) 
 373 ; Tompkins v. Saltmarsh, 14 S. & 
 R. (Penn.) 275; Kemp v. Farlow, 5 
 Ind. 462; McLean v. Rutherford, 8 
 Mo. 109 ; Nabb v. Lockhart, 18 Ga. 
 495 ; Lampley v. Scott, 24 Miss. 528 ; 
 Connor v. Winton, 8 Ind. 315 ; Jour- 
 dan ». Reed, 1 Iowa, 135 ; Skelly v. 
 Kohn, 17 HI. 170 ; Storer v. Gowen, 
 18 Me. 174. But under this rule it 
 must be understood that gross negli- 
 
 gence is the omission of such care 
 as other mandataries of common pru- 
 dence are accustomed to take of the 
 class of property intrusted to them ; 
 and the question as to whether he was 
 negligent or not, is dependent upon 
 the hind of property, and the degree 
 of care usually exercised by men of 
 commou prudence in keeping it. 
 Money requires a higher degree of 
 care than most other articles of prop- 
 erty, because of its currency ; and dia- 
 monds, government bonds, &c, and 
 other articles having a great special 
 value, and which can be readily re- 
 moved and converted, require a higher ' 
 degree of care from the mandatary 
 than articles of equal or even greater 
 value, but which, by reason of their 
 
16 
 
 THE LAW OP CARRIERS. 
 
 been placed in a man in consequence of his representations or 
 promises, that, when the property which is in trust has been 
 
 bulkiness, cannot be readily removed. 
 Bland v. Wormaek, ante; Tracy v. 
 Wood, ante. But even where money 
 and other property of a portable and 
 equally valuable character are re- 
 ceived by a mandatary, he is only 
 bound to the exercise of that degree 
 of care which men of ordinary pru- 
 dence usually exercise under similar 
 circumstances in reference to similar 
 property. Monteith v. Bissell, Wright 
 (Ohio), 410 ; Ulmer v. Ulmer, 2 N. 
 & M. (S. C.) 489. In the case last 
 cited, money was placed by A in B's 
 hands to buy goods for A, in a distant 
 town. Before B left home, he used 
 A's money and his own to redeem 
 property of a neighbor, which had 
 been seized on execution, and on ar- 
 riving at the place where the goods 
 were to be bought for A, he sold some 
 of his own property, and received the 
 money for it, and as he was about buy- 
 ing the goods for A, the whole of his 
 money was stolen from Mm. It was 
 held that he was liable to A for the 
 amount of money received from him, 
 because he, by using the money, had 
 changed his relation from that of a 
 mandatary to a borrower. See, also, 
 Graves v. Ticknor, 6 N. H. 537, where 
 it was held that where money is de- 
 livered to a person to be delivered to 
 another, but which he fails to deliver, he 
 is liable in assumpsit therefor upon an 
 implied contract to deliver the money 
 to the person directed, or return it to 
 the person from whom he received it. 
 It would be both unwise and unjust 
 to hold that a person who received no 
 pay therefor, but nevertheless volunta- 
 rily, gratuitously assumed the respon- 
 sibility of caring for or transporting 
 the property of another, was under no 
 obligation to exercise any special care 
 
 in executing his voluntary trust. Hav- 
 ing undertaken the trust, he assumes 
 the duty of executing it with that 
 degree of care and skill which men 
 usually exercise under similar circum- 
 stances in reference to the same kind 
 of property, and having reference to 
 its character and value. Graves v. 
 Ticknor, ante; Tompkins v. Salt- 
 marsh, 14 S. & R. (Penn.) 275. The 
 confidence induced by undertaking 
 any service for another is a sufficient 
 legal consideration to create a duty in 
 the performance of it. Whitehead v. 
 Greetham, 2 Bing. 464 ; Shilliber v. 
 Glynn, 2 M. & W. 143 ; Wilkinson 
 v. Coverdale, 1 Esp. 74; Beauchamp 
 v. Powley, 1 M. & R. 38. In some 
 of the cases, it is said that he is liable 
 only for the loss of the property when 
 he has been guilty of such gross negli- 
 gence as is equivalent to fraud. Fos- 
 ter v. Essex Bank, 17 Mass. 500; 
 Edson v. Weston, 7 Cow. (N. Y.) 
 278. And, where he omits to use the 
 species of ordinary care before referred 
 to, he becomes liable ; and if he uses 
 the property, although he replaces it 
 in kind, from that moment he becomes 
 liable for it as for money had and re- 
 ceived, if he fails to execute the trust, 
 whatever may have been the degree of 
 care exercised as to the substituted 
 property. Ulmer v. Ulmer, 2 N. & 
 M. (S. C.) 489. This rule was 
 adopted in a case where money was 
 deposited with the clerk, by order of 
 court, and he used it. The money 
 having depreciated between the date 
 of its deposit and the date at which it 
 should have been returned, it was held 
 that, as he was entitled to have the 
 same money returned to him, the clerk 
 was liable for its value at the time of 
 its deposit with him. Mott v. Pettit, 
 
CARRIERS WITHOUT HIRE. 
 
 17 
 
 placed in his hands, the law should give the owner some right 
 to enforce the performance of the trust in a proper manner. 
 And by the leading case of Coggs v. Barnard, 1 as we have 
 seen, it was decided that the bailor had this right. The dec- 
 laration in this case stated that the defendant had undertaken 
 to remove several hogsheads of brandy from one cellar to 
 another, and that in so doing, through the negligence of the 
 defendant and his servants and agents, one of the casks was 
 staved, and a great quantity of brandy was spilt. The verdict 
 was for the plaintiff, and the defendant moved in arrest of 
 judgment that the declaration was bad, because it did not 
 allege that the defendant was a common porter, nor did it 
 aver that he had anything for his pains. The court were, 
 however, of opinion that the action lay. In giving judgment, 
 Lord Holt drew a clear distinction between the case in which 
 such an agreement is executory, and the case in which it 
 is executed. In 11 Hen. IV., 33, "the action was brought 
 against a carpenter for that he had undertaken to build the 
 
 1 N. J. L. 298. But, except where 
 the relation of the parties is changed, 
 by an express contract, or by the act 
 of the mandatary, he is only liable for 
 gross negligence in respect to the 
 property intrusted to him. Dartnall 
 v. Howard, 4 B. & 0. 345 ; Shiells 
 v. Blaekburae, 1 II. Bl. 158 ; Beau- 
 champ ».Powley,'l M. &Rob. 38. But 
 the term "gross negligence," in this 
 connection, is not to be understood, as 
 is intimated in some of the cases, to 
 mean that the act of the mandatary 
 must be such as to amount to a fraud, 
 as in that case it would be virtually 
 impossible to fix his liability, unless 
 the courts resort to another refine- 
 ment of reasoning, and hold, as was 
 stated in the commencement of this 
 note, that the omission of such care 
 as other mandataries of common pru- 
 dence exercise in the care of such prop- 
 erty, is evidence of fraud. Indeed, 
 the refinements formerly indulged in, 
 
 in reference to gross negligence, have 
 ceased to commend themselves to in- 
 telligent courts ; and when a person 
 fails to exercise, in reference to the 
 property of another, which is in his 
 possession for the purpose of being by 
 him gratuitously delivered to another, 
 such a degree of care as men of ordi- 
 nary prudence would exercise under 
 similar circumstances, in reference to 
 the kind of property intrusted to him, 
 he is guilty of a breach of an implied 
 duty in respect thereto, and of such 
 negligence as renders him liable for 
 any injuries thereto, or its loss or 
 destruction (Tracy v. Wood, ante) 
 without reference to the question 
 whether his act was such that it could 
 be said to be fraudulent or not. Fel- 
 lowes v. Gordon, 8 B. Mon. (Ky.) 
 415 ; Tudor v. Lewis, 3 Met. (Ky.) 
 378. 
 
 1 Ante, p. 13. 
 
 2 
 
18 • THE LAW OP CARRIERS. 
 
 plaintiff's house within such a time and had not done it, and 
 it was adjudged that the action would not lie." 1 However, 
 the court was agreed that if he had built the house, and done 
 the work unskilfully, an action would have lain. The reason 
 of such a distinction has been already pointed out, 2 and is as 
 easily appreciated as it is eminently satisfactory. 
 
 Sec. 21. Gratuitous Bailee or Carrier without Hire charge- 
 able for Gross Neglect. — From this case it is evident that a 
 gratuitous bailee, as a carrier without hire, is chargeable for 
 gross negligence ; and it has been advanced that he ought to 
 be held liable for negligence which may not deserve that 
 name, it being argued that the contract 3 into which he has 
 impliedly entered should necessitate his performance of the 
 duties involved with the ordinary diligence which a mafn be- 
 stows upon his own business matters ; and it has been asserted 
 that a general impression in favor of this view has tended 
 towards the opinion — the prevalence of which is on the in- 
 crease — that gross negligence is only negligence with a vitu- 
 perative epithet added to it. 4 
 
 Sec. 22. Reason, of the Distinction. — There still seems to 
 be some meaning in the distinction. That services which are 
 not paid for are generally worthless, is a belief in the minds 
 of many men. It seems to be a piece of practical wisdom to 
 understand that if you want a thing, you must pay for it. It 
 matters not whether it be talent or tallow, skill or skins. 
 Nothing for nothing is the rule of business. If, in spite of 
 such a belief, emphasized, as it must be, by the knowledge of 
 the ordinary experience of mankind, a man trusts his prop- 
 erty to another to be carried to a certain place, he surely ought 
 to be satisfied with a modified care of his goods, as he saves 
 the remuneration he would have paid to a common carrier. 
 When a man has the means of being fully warned of the pos- 
 sible insecurity of a trust, and he still enters into it, there 
 seem many reasons why law should not strengthen the secu- 
 rities in favor of the person trusting, and increase the liabili- 
 
 1 1 Sm. L. Ca. 191, 6th ed. * Rome, B., Wilson v. Brett, 11 
 
 2 Ante, p. 13. M. & W. 115 ; Tudor v. Lewis, 3 Met. 
 8 See Story on Bailm., p. i, § 2, n. (Ky.) 378. 
 
CARRIERS WITHOUT HIKE. 19 
 
 ties of the trustee. And, at the same time, there can be no 
 question that a person having undertaken, out of good-will, to 
 carry a neighbor's goods, and having actually entered upon 
 the performance of his promise, is bound to use care in that 
 performance, and that, in the event of gross negligence, he 
 should be held liable to reimburse the bailor for the loss which 
 his thoughtless imprudence has occasioned. 1 By his repre- 
 sentations, or his accession to the wishes of his neighbor, he 
 has led him to repose a confidence in him ; he has induced 
 him to believe, not only by his words, but by his acts, in under- 
 taking what he promised, that he would actually accomplish 
 what he undertook. If he does this — if he pays any atten- 
 tion to the duty which he has created to insure its faithful 
 performance, perhaps that is all that the owner has a right to 
 expect ; and if, in spite of this minor degree of care, the prop- 
 erty is injured, the gratuitous bailee would not be held liable. 
 This proposition is true, whether — as in the case of Coggs v. 
 Barnard — there is an undertaking to lay the goods down 
 safely, or there is simply an undertaking to keep and carry 
 the goods, although, in Lord Holt's judgment, there is. a dis- 
 tinction drawn between two such agreements. 
 
 Sec. 23. Gross Negligence, what it is. — Degrees of At- 
 tention. — Degrees of Negligence generally a. Question for a 
 Jury. — Gross negligence is only negligence of an exagger- 
 ated kind. As negligence is constituted by a certain condi- 
 tion of mind, it is evident that it may exist in very many 
 different degrees. The attention which a man pays to what 
 is going on around him varies from what has been called " rapt 
 attention," to the absolute inattention of reverie. And so 
 does negligence vary in the inverse ratio to attention. A 
 man's whole thoughts may be fixed upon some labor, or his 
 whole thoughts may be turned entirely away from what his 
 hands have found to do. The former properly deserves the name 
 of extraordinary diligence, — the latter of gross negligence. 
 In many cases it can be decided by a judge whether there has 
 been gross negligence; in most, the question can be more 
 
 1 Shiells v. Blacktmrne, 1 H. Bl. 159. 
 
20 THE LAW OP CARRIERS. 
 
 satisfactorily answered by a jury. In the case of Doorman v. 
 Jenkins, 1 Mr. Justice Taunton said that gross negligence was 
 " a great and exaggerated degree of negligence, as distin- 
 guished from negligence of a lower degree." The circum- 
 stances of this case illustrate the definition. It was an action 
 against a gratuitous bailee of mone) r . The defendant was a 
 coffee-house keeper, and he made the following statement : 
 that he had put the money of which he was the bailee into his 
 cash-box, with a larger sum of his own. The box was kept 
 in the tap-room, which had a bar in it. The tap-room was 
 open on Sundays, but the rest of his house was not open on 
 that day. The cash-box, with his own and the plaintiff's 
 money, was stolen on that day. The judge left it to the jury 
 to say whether there had been gross negligence, and he told 
 them that the loss of the defendant's own money did not 
 necessarily prove reasonable care. In this case there was an 
 entire absence of proof of care. It was open to the defendant 
 to show that the cash-box was in a place which most people 
 would have thought secure. He might have proved that, al- 
 though the tap-room was open upon Sunday, it was not gen- 
 erally frequented ; or that he had taken some precaution for 
 the safety of the box, by being in the tap-room the whole time 
 it was open. But, in the absence of all such proof, the court 
 refused to disturb the verdict of the jury, which was in favor 
 of the plaintiff. It need scarcely be asserted that the terms 
 " slight negligence," " ordinary negligence," and " gross negli- 
 gence," have had a very definite connotation attached to them 
 in courts of law by those judges who affirm a usefulness in the 
 distinction between them. Indeed, all that we should desire 
 would be, that the culpable negligence of gratuitous bailees 
 should be judged of more leniently than the culpable negli- 
 gence of those who undertake a similar work for hire. The 
 many varying decisions in our courts prove that the usefulness 
 of the distinction has, to some extent, been frustrated by the 
 defective manner in which it has been appreciated. Thus, 
 we find that Cresswell, J., in Austin v. Manchester, Sheffield, 
 
 1 2 Ad. & Ell. 256. 
 
CARRIERS WITHOUT HIRE. 
 
 21 
 
 and Lincoln Railway, 1 says : " The term ' gross negligence ' is 
 found in many of the cases reported on this subject, and it is 
 
 1 10 C. B. 454. The distinctions 
 which were formerly made in regard 
 to negligence, and the recognition of 
 three distinct grades of carelessness) 
 namely, slight, ordinary, and gross, 
 have been exploded ; and in most of 
 the States the simple question is, Was 
 the defendant, in view of the circum- 
 stances, negligent ? If so, he is liable ; 
 if not, he is not liable. Railroad Co. v. 
 Derby, 14 How. (U. S.) 84 ; Steamboat 
 New World v. King, 16 How. (U. S.) 
 474. Curtis, J., in delivering the 
 opinion in the latter case, said ; " The 
 theory that there are three degrees of 
 negligence, described by the terms 
 'slight,' 'ordinary,' and 'gross,' has 
 been introduced into the commou law 
 from some of the commentators on the 
 Roman law. It may be doubted if 
 these terms can be usefully applied in 
 practice. Their meaning is not fixed, 
 or capable of being so. One degree, 
 thus described, not only may be eon- 
 founded with another, but it is quite 
 impracticable exactly to distinguish 
 them. Their signification necessarily 
 varies according to circumstances, to 
 whose influence the courts have been 
 forced to yield, until there are so many 
 real exceptions, that the rules them- 
 selves can scarcely be said to have 
 a general operation. In Storer v. 
 Gowen, 18 Me. 177, the Supreme 
 Court of Maine says : ' How much 
 care will, in a given case, relieve a 
 party from the imputation of gross 
 negligence, or what omission will 
 • amount to the charge, is necessarily 
 a question of fact, depending on a 
 great variety of circumstances which 
 the law cannot exactly define.' Me. 
 Justice Stoey (Bailments, § 11), 
 says: 'Indeed, what is common or 
 ordinary diligence is more a matter of 
 
 fact than of law.' If the law furnishes 
 no definition of the terms 'gross negli- 
 gence,' or ' ordinary negligence,' which 
 can be applied in practice, but leaves 
 it to the jury to determine, in each 
 case, what the duty was, and what 
 omissions amount to a breach of it, 
 it would seem that imperfect and 
 confessedly unsuccessful attempts to 
 define that duty had better be aban- 
 doned. Recently the judges of sev- 
 eral courts have expressed their dis- 
 approbation of these attempts to fix 
 the degrees of diligence by legal defi- 
 nitions, and have complained of the 
 impracticability of applying them. 
 Wilson v. Brett, 11 M. & W. 113 ; 
 Wyld v. Pickford, 8 M. & W. 443, 461, 
 462 ; Hinton v. Dibbin, 2 Q. B. 640, 
 651. It must be confessed that the 
 difficulty in defining gross negligence, 
 which is apparent in perusing such 
 cases as Tracy v. Wood, 3 Mas. (U. S.) 
 132, and Foster v. The Essex Bank, 
 17 Mass. 479, would alone be suffi- 
 cient to justify these complaints. It 
 may be added, that some of the ablest 
 commentators on the Roman law, and 
 on the civil code of France, have 
 wholly repudiated this theory of three 
 degrees of diligence, as unfounded in 
 principles of natural justice, useless in 
 practice, and presenting inextricable 
 embarrassments and difficulties. See 
 Toullier's Droit Civil, 6th vol. p. 239, 
 &c. ; 11th vol. p. 203, &c. ; Mackel- 
 dey, Man. de Droit Romain, 191, &c." 
 As previously stated, the question now 
 is, whether the defendant, in a given 
 case, in view of all the circumstances, 
 was negligent. Maynard v. Buck, 100 
 Mass. 40. And " gross " negligence, 
 where the degrees of negligence, as 
 stated above, are recognized, is held 
 to be that entire want of care which 
 
22 THE LAW OF CARRIERS. 
 
 manifest that no uniform meaning has been ascribed to those 
 words, which are more correctly used in describing the sort, of 
 negligence for which a gratuitous bailee is responsible, and 
 have been somewhat loosely used with reference to carriers 
 for hire ; " and he refers to the words of Lord Denman, who, 
 in giving judgment in the case of Hinton v. Dibbin, 1 said : " It 
 may well be doubted whether between gross negligence and 
 negligence merely, any intelligible distinction exists." These 
 opinions, and others which have already been alluded to, 2 
 show that the distinction which has been spoken of as exist- 
 ing between gross negligence and negligence which is not 
 gross, has not invariably found favor in the eyes of judges, 
 and give some color to the opinion that the classification is 
 useless. The mere fact, however; that a thing has not been 
 used, does not prove that it is useless. 
 
 Sec. 24. What constitutes Care or Negligence to be judged of 
 in relation to Pacts. — Illustration. — It has already been pointed 
 out that the question as to what is care or diligence, and what, 
 consequently, constitutes negligence in any case, can only be 
 determined by a reference to facts. Ordinary prudence tells 
 
 will raise a presumption of a conscious it is lost, lie is liable therefor without 
 indifference to consequences. South- reference to the question of diligence, 
 ern Cotton Press, &c. Co. v. Bradley, Thus, where the plaintiff, who was 
 52 Tex. 587- Of course, in a given upon the point of starting upon a long 
 case, the circumstance that a gratui- voyage, gave the defendant §1000, 
 tous bailee took the same care of the and requested him to purchase a gov- 
 property that he took of his own, of ernment bond and keep it for him, for 
 a similar character, may be sufficient which service the defendant was to 
 to overcome the charge of negligence, receive nothing, and the defendant, 
 Thus, if a bauk receives a special de- having kept the bond for about a year, 
 posit and places it in its vaults, where without any directions from the plain- 
 it keeps its own money and securities, tiff or his wife, sent it by mail to the 
 it has been held not to be liable to the plaintiff's wife, and it was lost on the 
 depositor, if its cashier fraudulently way, it was held that he was liable 
 takes it away and converts it to his therefor without reference to the ques- 
 own use, unless it was guilty of bad tion whether he had or had not used • 
 faith. Smith v. Westfleld Bank, 99 due diligence. See also Colyar v. 
 Mass. 60S ; Foster v. Essex Bank, 17 Taylor, 1 Coldw. (Tenn.) 372, to the 
 Mass. 479. But if a bailee violates his same effect. 
 
 instructions in reference to the prop- 1 2 Q. B., at p. 661 ; 2 Gale & D., 
 
 erty (although he acted in perfect at p. 43. 
 good faith), in consequence of which 2 Ante, p. 8. 
 
CARRIERS WITHOUT HIRE. 23 
 
 a man that if he has undertaken the care of animals for 
 another, he has at the same time undertaken the correlative 
 duty of feeding them. Whether he is to receive remuneration 
 for the care that he has, either expressly or by implication, 
 undertaken to bestow, if he has become the bailee of cattle he 
 is bound to see that they do not die of starvation. Men do 
 not bail cattle that they may famish in the possession of 
 another. So, if he has become the bailee of sheep or horses, 
 he is bound not to allow them to stray and be lost. 1 Had that 
 been the bailor's object in the bailment, he must have been 
 insane ; and no one but an insane bailee, or one who was 
 grossly careless, could allow such an event to happen while 
 the animals were in his possession. And so it is in every 
 other case which could be put. 
 
 SEC. 25. How the Amount of Care or Diligence is to be 
 estimated. — The kind and amount of the care to be taken, 
 and the diligence to be required, is in the direct ratio to the 
 necessity of such care and diligence, and to the probability of 
 loss or damage to article which is bailed, in case of neg- 
 ligence. It must also necessarily depend upon the nature and 
 value of the article, — to the circumstances of the times and 
 place, as well as to the circumstances of the bailee. 2 Where 
 
 1 But he is only bound to exercise and two boats lying near bad just 
 ordinary care to prevent cattle from been robbed. The money was placed 
 straying, even though, he is an agistor, in a safe on the boat, and the safe was 
 Rey v. Toney, 24 Mo. 600. And robbed, and the extra watchman em- 
 where a slave was delivered to the de- ployed about the boat was not pro- 
 fendant to be kept by him upon trial, duced as a witness to show the degree 
 until he could determine whether he of care exercised by the boat-owner, 
 would buy him or not, and the slave It was held that the owner was liable 
 was permitted to go a short distance as a mandatary, and that the evidence 
 from the house, and he ran away, it was sufficient to show such a want of 
 was held that he was not liable to the ordinary care called for under the cir- 
 plaintiff for the loss of the slave, cumstanees, as to sustain a verdict for 
 De Ponclear v. Shottenkirk, 3 John, the plaintiff. In Colyar v. Taylor, 
 (N. Y.) 170. 1 Coldw. (Tenn.) 372, the defendant 
 
 2 In Jenkins v. Motlow, 1 Sneed undertook gratuitously to receive for 
 (Tenn.), 248, money was intrusted to the plaintiff $1000 at a certain place, 
 the owner of a steamboat by a passen- and to deliver it to him at another 
 ger who paid no more than the ordi- town where they both resided. After 
 nary fare. ' There was a great crowd, drawing the money he went to a pub- 
 
24 THE LAW OF CARRIERS. 
 
 a man undertakes a trust, fully believing that he will be able 
 to perform the obligatory duties, and where circumstances 
 occur contrary to all expectation, and, as it were, by the act 
 of God, which render him unable efficiently to perform the 
 work he has undertaken, there cannot be said to be any negli- 
 gence upon his part. But this change may take place either 
 in the circumstances of the individual himself, or in the circum- 
 stances of the article which was intrusted to him. If a man 
 undertakes to carry an article of little or no value, without hire, 
 upon the express understanding that it is worthless, and if 
 subsequently, in transitu, through some unavoidable accident, 
 he discovers that the article which he is carrying is an article 
 of value, it would seem that it would be unjust to hold him 
 liable for a want of care greater than that which his original 
 contract necessitated! If, however, on the other hand, he un- 
 dertook to carry a parcel, without inquiry as to its value, and 
 without knowledge of its contents, and he subsequently became 
 aware, through accident, that the value of the contents was 
 considerable, he would properly be held liable for any want of 
 care which was disproportioned to the danger. of loss or injury. 
 This was the case of Nelson v. Mackintosh. 1 The plaintiff's 
 box was taken on board the " ArUndel," of which the defend- 
 ant was captain, at Trinidad. The plaintiff, who meant to 
 work his way home to England on board ship, was accident- 
 ally left behind when the ship sailed, and soon after the de- 
 parture of the ship the plaintiff's box was opened, upon the 
 suggestion of the captain that there might be contraband goods 
 
 lie fair, where he met a neighbor who bailee of money which was lost while 
 
 was going home before lie was, and, he was carrying it, while his own 
 
 stepping a little aside from the crowd, money was not lost, is liable for the 
 
 he gave him the money to carry to the loss, upon the ground that, at all 
 
 plaintiff. While on his way home in events, the bailee is bound to exercise 
 
 a crowded car, the neighbor had his as much care in reference to such 
 
 pocket picked, and the money was money as he exercises in reference to 
 
 taken by the thief. The defendant his own. Bland v. Womack, 2 Murph. 
 
 was held liable, because he had vio- (N. C.) 373 ; Delaware Bank v. Smith, 
 
 lated his trust by delivering it to his 1 Edm. (N. Y.) Sel; Cas. 351 ; An- 
 
 neiglibor, and was guilty of a conver- derson v. Norseman, Wright (Ohio), 
 
 sion and gross negligence. So, too, 598. 
 it has been held that a gratuitous 1 1 Stark. 237. 
 
CARRIERS WITHOUT HIRE. 25 
 
 in it. When the contents were ascertained, the box was again 
 closed and nailed down as before. Towards the termination 
 of the voyage, however, the trunk was again opened, and the 
 captain, in the presence of several passengers, put the con- 
 tents into a canvas bag, which he deposited in his own chest, 
 where his own valuables were generally kept. At Gravesend, 
 the captain and one mate left the vessel when the river pilot 
 was taken on board, and an excise officer and two young men 
 belonging to the vessel were allowed to sleep in the cabin. 
 The next morning the captain's chest, containing the valu- 
 ables, was missing, and was not afterwards discovered. Lord 
 Ellenborough, in his address to the jury, said: "Every per- 
 son who delivers goods to another, to be carried for hire, has 
 a right to the utmost care ; the carrier stands in the situation 
 of an insurer, and is liable for all losses except those occa- 
 sioned by the act of God, or of the king's enemies ; and where 
 a person does not carry for hire, he is bound to take proper 
 and prudent care of that which is committed to him ; " 1 and 
 he left it to the jury to say whether the captain had been 
 guilty of negligence, telling them that as soon as he had dis- 
 covered the valuable nature of the property he was bound to 
 watch it with great care and diligence ; and' the jury, being of 
 
 1 A bailee without reward, who bailee without hire, receives' money to 
 receives money to transmit to a third deliver to another, there is an implied 
 person, is bound to perforin his under- contract that he shall deliver it, or 
 taking in good faith and with due dili- return it, or account for it, in a rea- 
 gence and attention adequate to the sonable time. If, in such case, the 
 trust reposed in him. Where money money is enclosed in a letter, and 
 was given to A to transmit to B, with- neither money nor letter is accounted 
 out reward, and, there being no bank- for, a tort is not thereby proved so as 
 ers where he resided in "Utah, lie to prevent the maintenance of assump- 
 pureliased a draft of the United States sit, but is merely evidence of gross 
 marshal upon the Treasury Depart- neglect. Graves v. Ticknor, 6 N. H. 
 ment at Washington, with B's money 537. In the last case, it was held 
 and some of his own and of others that assumpsit lay against the manda- 
 uniting with him, in accordance with tary, but it must be upon the contract, 
 the usual method of transmitting as, except where an appropriation by 
 money from that place, and the draft him of the money is shown, an action 
 was refused payment, it was held that on the common counts cannot be main- 
 he was not liable. Eddy v. Living- tained. Beardslee v. Bichardson, 11 
 ston, 35 Mo. 487. Where one, as a Wend. (N. Y.) 25. 
 
26 THE LAW OF CARRIERS. 
 
 opinion that proper care had not been taken of the money, 
 found a verdict for the plaintiff. 1 
 
 SBC. 26. Duties of Bailee relative to Nature of Article. — In 
 another case the duties of the bailee in relation to the value of 
 the article are indicated. In this case the plaintiff intrusted a 
 parcel to a carrier, who had given notice that he would not be an- 
 swerable for parcels of value unless entered and paid for as such. 
 The plaintiff, who was aware of the defendant's notice, deliv- 
 ered his parcel, which contained bank-notes to a large amount, 
 without informing the defendant of its contents. The coach 
 in which the box was conveyed from Berwick to Newcastle ar- 
 rived in Newcastle at midnight, and stood for half an hour in 
 a wide street. A porter was ordered to watch the coach, but 
 this person was a considerable distance from it, and was so 
 inattentive to his duty that the box was stolen. At the trial, 
 Bayley, J., left two questions to the jury, — viz., First, whether 
 the plaintiffs dealt fairly by the defendants in not apprising 
 them that the contents of the box were of value ? Second, 
 whether there was in the conduct of the defendants gross 
 negligence ? And it was held that the direction to the jury 
 was right. 2 In this case the defendant was a common carrier, 
 but it is quoted to show that the bailee ought in every case to 
 proportion his care to the possible injury or loss which may be 
 sustained by any improvidence or negligence upon his part, 
 and, at the same time, to show that the negligence which 
 makes him liable must be within the scope of the implied con- 
 tract entered into at the time of the bailment. 
 
 Sec. 27. The Amount of Care to be taken by Gratuitous 
 Bailees. — The measure, then, of the care which a gratuitous 
 carrier of goods is to bestow, in order that, in case of loss or 
 damage to the chattels bailed, he may be regarded as irrespon- 
 sible for the injury or loss, is the care which a prudent man 
 bestows upon similar work when undertaken on his own be- 
 
 1 See Beauchamp v. Powley, 1 East, 371 ; Clarke v. Gray, 6 East, 
 Mood. & Rob. 38. 564 ; Harris v. Packwood, 3 Taunt. 
 
 2 Batson v. Donovan, 4 B. & Aid. 263 ; Bignold v. Waterhouse, 1 M. 
 21. See also Gibbon v. Paynton, & S. 255 ; Bodenham v. Bennett, 
 Burr. 2208 ; Izett v. Mountain, 4 4 Price, 31. 
 
CARRIERS WITHOUT HIRE. 27 
 
 half. We have seen that the amount of care which a man 
 takes of his own property will not be a standard by which, in 
 all cases, we may judge of his duty as the bailee of the goods 
 of another. For it is to be remembered that the loss of his 
 own goods may be a comparatively trivial circumstance to him, 
 while the loss of the bailed goods may be an irreparable injury 
 to the bailor. 
 
 Sec. 28. Another Criterion. — Perhaps a better criterion 
 would be the amount of care which ordinary bailees similarly 
 circumstanced take of similar chattels. 1 It is certain that 
 a man may be grossly negligent of his own goods, and if, 
 through that gross negligence, he loses his own property at 
 the same time that he loses that of which he is the gratuitous 
 bailee, that loss would be no excuse in an action by the pro- 
 prietor of the articles intrusted to him. The circumstances in 
 all such cases require to be carefully considered. Sir Wil- 
 liam Jones has put a case which is in some aspects not 
 altogether satisfactory : " If Stephen desire Philip to carry a 
 diamond ring from Bristol to a person in London, and lie put 
 it, with bank-notes of his own, into a letter case, out of which 
 it is stolen at an inn, or seized by a robber on the road, Philip 
 shall not be answerable for it, although a very careful, or per- 
 haps a commonly prudent, man would have kept it in his purse 
 at the inn, and have concealed it somewhere in the carriage. 
 But if he were to secrete his own notes with peculiar vigilance, 
 and either leave the diamond in an open room or wear it on 
 his finger in the chaise, he would be bound in case of a loss by 
 stealth to restore the value of it to Stephen." But is such 
 a doctrine altogether satisfactory even in the case of a gratui- 
 tous bailee ? May not the leaving the notes in the letter case 
 arise from gross negligence ? and does the loss of the bailee's 
 own money prove the existence of sufficient care to exonerate 
 him from liability to the bailor for the lost ring ? If he was 
 
 1 This was the rule adopted in gross negligence is the omission of 
 
 Tracy v. Wood, 3 Mas. (U. S.) 132; that care which bailees without hire, 
 
 Bland v. Womaek, 2 Murph. (N. C.) or other mandataries of common pru- 
 
 373 ; and Anderson v. Forseman, ante ; deuce, are accustomed to take of prop- 
 
 the court, in these cases, holdiug that erty of a like kind. 
 
28 THE LAW OP CARRIERS. 
 
 habitually a careless man, and Stephen, knowing this fact, 
 trusts him with the ring, or if Stephen, without knowing any- 
 thing about Philip, trusts him with the ring, which he wishes 
 conveyed to London, then, perhaps, Stephen deserves to lose 
 his ring. If, however, the whole of Philip's past life has held 
 out the assurance to his neighbors that he is a prudent man, 
 and if Stephen, being one of these neighbors, trusts Philip with 
 the ring upon the strength of this knowledge of his character, 
 then the leaving of the bank-notes, along with the ring in the 
 letter case, ought, it seems, to be proved to be in conformity 
 with the ordinary prudent conduct of the bailee, before it could 
 be adduced as a ground for regarding him as irresponsible 
 for the loss of the property. It has also been argued that 
 this test, as to the care which is required from gratuitous 
 bailees, is unsatisfactory, upon the ground that a man " might 
 in respect of his own property be willing to encounter extraor- 
 dinary risks or adventure upon mere gambling speculations, 
 with a view to a particular advantage, or from a natural dis- 
 position to rashness, which would be entirely unjustifiable in 
 respect to -the goods of another put in his custody. 1 But this 
 
 1 See Jones v. Matlow, 1 Sneed (N. Y.) Sel. Cas. 351. See Mon- 
 
 (Teim.), 248 ; Colyar v. Taylor, 1 teath v. Bissell, Wright (Ohio), 598, 
 
 Coldw. (Tenn.) 372, where a higher where it was held that a gratuitous 
 
 degree of diligence than that named in bailee who took as good care of the 
 
 the text was required. The rule is money intrusted to him as he did of 
 
 that if a mandatary undertakes the his own, was not liable. But in Tracy 
 
 business submitted to him, he is bound v. Wood, ante, which was a case where 
 
 to use a degree of diligence and atten- the defendant undertook gratuitously 
 
 tion adequate to the performance, of to carry two bags of money, Story, J., 
 
 his undertaking ; and whether or not in charging the jury, said : " I agree, 
 
 such diligence has been used, is a that in cases of bailees without reward, 
 
 question for the jury. Kirtland v. they are liable only for gross negli- 
 
 Montgomery, 1 Swan (Tenn.), 452 ; gence. The language of the books as 
 
 Jones on Bailments, 62. This rule to what constitutes gross negligence, 
 
 was adopted in Bland v. Womack, 2 or not, is sometimes loose and inaccu- 
 
 Murph. (N. C.) 373. And a bailee rate, from the general maimer in which 
 
 who gratuitously undertook to carry propositions are stated. When it is 
 
 money for the plaintiff, and lost it, said that gross negligence is equiva- 
 
 wliile his own was not lost, was held lent to fraud, it is not meant that it 
 
 liable therefor. See also, to the same cannot exist without fraud. There 
 
 effect, Anderson v. Forseman, ante, may be very gross negligence, in cases 
 
 and Delaware Bank v. Smith, 1 Edm. where there is no pretence that the 
 
CARRIERS WITHOUT HIRE. 29 
 
 scarcely seems an argument against the use of this test, for in 
 every bailment the power of the bailee over the chattels bailed 
 is limited by the definite objects of the trust, — the article has 
 to be carried or kept. But if such acts as those indicated 
 were not a contravention of the implied contract, then it is 
 fairly to be presumed that the bailor may have trusted his 
 property to the bailee, upon the ground of those very qualities 
 which he constantly manifests with regard to his own prop- 
 erty, — call it speculative energy or what you will. It is to be 
 taken for granted that he who trusts knows something of the 
 character of the person he trusts, and if he has done nothing 
 to ascertain the trustworthiness of his bailee, he is himself 
 guilty of a rashness which is as worthy of the punishment of 
 the loss of his property as the speculative rashness of the 
 bailee is worthy of the punishment of the loss of the value of 
 the property bailed, — that is, under the supposition that the 
 gratuitous bailee has not been guilty of gross negligence. In 
 the case just supposed, the speculative ability may stand in the 
 same relation to the bailment that skill does in other cases. 
 
 party has been guilty of fraud ; though for that is gross negligence. The con- 
 certainly such negligence is often pre- tract of bailees without reward is not 
 sumptive of fraud. It appears to me merely for good faith, but for such 
 that the true way of considering cases care as persons of common prudence 
 of this nature is to consider whether in their situation usually bestow on 
 the party has omitted that care which such property. If they omit such care, 
 bailees without hire, or mandataries it is gross negligence " This was a 
 of ordinary prudence, usually take of bailment of money, of which, said the 
 property of this nature. If he has, learned judge, much greater care is 
 then it constitutes a case of gross neg- always taken than of other things, 
 ligence. The question is not, whether " He kept his own money in the same 
 he has omitted that care which very valise, and took no better care of it 
 prudent persons usually take of their than of the plaintiff's. Still, if the 
 own property, for the omission of that jury are of opinion that he omitted to 
 would be but slight negligence ; nor take that reasonable care of the gold 
 whether he has omitted that care which bailees without reward in his 
 which prudent persons ordinarily take situation usually take, or which he 
 of their own property, for that would himself usually took of such property 
 be but ordinary negligence : but under such circumstances, he has been 
 whether there be a want of that care guilty of gross negligence." Poster 
 which men of common sense, however v. The President, Directors, and Co. 
 inattentive, usually take, or ought to of the Essex Bank, 17 Mass. 478. 
 be presumed to take, of their property, 
 
30 THE LAW OP CARRIERS. 
 
 And the bailee is bound, if he undertakes to do something re- 
 quiring skill, to exercise whatever skill he possesses, or, at 
 least, such an amount of skill as, by his profession, by his con- 
 duct, by his actions, by his ordinary business relations, he 
 pretends to the public to possess. 
 
 SEC. 29. Doctrine in Shiells v. Blackburne. — This was made 
 clear by Heath, J., in Shiells v. Blackburne, 1 .where he said : 
 " If a man applies to a surgeon to attend him in a disorder, 
 for a reward, and the surgeon treats him improperly, there is 
 gross negligence, and the surgeon is liable to an action. The 
 surgeon would also be liable for such negligence if he under- 
 took gratis to attend a sick person, because his situation im- 
 plies skill in surgery. But if the patient applies to a man of 
 different employment or occupation for gratuitous assistance, 
 who either does not exert all his skill, or administers improper 
 remedies to the best of his ability, such a person is not liable. 
 Although this argument is fallacious, it is still true that in 
 many cases the care which a man will take of his own prop- 
 erty would not afford a good criterion of the duty of diligence 
 upon the part of a gratuitous bailee. And as we have said 
 above, we would prefer to regard the amount of care which 
 ordinary bailees similarly circumstanced bestow upon similar 
 chattels, as a more accurate criterion of a bailee's duties and 
 obligations. 
 
 Sec. 30. Modification of Duties by Special Agreement. — 
 Promises " to keep," and " to keep safely." — But the character 
 of the duties of a gratuitous bailee may be varied by the ex- 
 press words of the contract at the time the bailment was made. 
 Notwithstanding what was said by Lord Coke in Southcote's 
 Case, 2 there is a difference between the effects of two gratui- 
 tous promises, — the one to keep or carry goods, and the other 
 to keep or carry them safely. 8 And there can be no reason 
 why a man, if he contracts to take more care than that which 
 is necessarily thrust upon him by the common law, should not 
 be held liable for the breach of this contract. In the one case, 
 
 1 1 H. Bl. 159, at p. 162 ; Kuehn a Per Holt, C. J., Coggs v. Bar- 
 v. Wilson, 13 Wis. 104. nard, 1 Sm. L. Ca., p. 183, 6th ed. 
 
 2 4 Hep. 84; Cra. Eliz. 815. See also Ross v. Hill, 2 C. B. 877. 
 
CARRIERS WITHOUT HIRE. 31 
 
 therefore, the gratuitous bailee would be properly held liable 
 only for gross negligence, while in the other an ordinary 
 amount of negligence would make him liable to the owner of 
 the chattel in case of loss or injury. On the other hand, there 
 can evidently be no reason for holding that a carrier without 
 hire may not stipulate for immunity from liability in case of 
 damage or loss to the articles intrusted to him, although that 
 loss or injury is occasioned by the grossest negligence upon 
 his part. At the same time, no stipulation can do away with 
 a bailee's liability in case the loss arises through his fraud, 
 and it is also evident that no special contract of the parties at 
 the time of the bailment can be binding if it is in defiance of 
 morals or contrary to express legislative enactments. 1 
 
 SEC. 31. Duties of Bailee •who promises to keep safely. — 
 In the case of Kettle v. Bromsall, 2 the distinction between the 
 two promises made by gratuitous bailees referred to by Lord 
 Holt was well illustrated. There Willes, C. J., said : " If 
 the goods were delivered to be kept safely, though the defend- 
 ant have been robbed of them, detinue will lie against him ; for 
 he must take his remedy against the thief or the hundred, as 
 he can. But if the goods were delivered to the defendant to 
 take care of them as his own proper goods, 3 &c, if he be robbed 
 of them, that is a good plea." 
 
 Owing to various circumstances, actions at common law on 
 the contract of mandate have been very few, and owing to this 
 
 i.See 17 & 18 Viot. c. 31, § 7, and Co., 17 L. T. s. s. 469; Peninsular 
 
 Wyld v. Pickford, 8 M. & W. 443 ; and Oriental Steam Navigation Co. 
 
 Hiutonu.Dibbin, 9 Q. B. 646. "With v. Shand, 11 Jur. k. s. 771. By 
 
 regard to the effect of conditions on such a special acceptance, by a 
 
 liability of common carriers, Lord v. common carrier, or by a public 
 
 Midland Rail. Co., 36 L. J. C. P. notice to the effect that he will not 
 
 170 ; 2 L. B. C. P. 339 ; 15 W. R. be liable, he can place himself in the 
 
 405 ; Rooth v. North-Eastern Rail, position of a private carrier for hire. 
 
 Co., 36 L. J. Exch. 83 ; 2 L. B. See post. 
 Exch. 173; 15 W. B. 695 ; 15 L. T. 2 Willes, 118. 
 n. s. 624; Martin v. Gt. Indian 8 Though even in such case the 
 
 Peninsular Bail. Co., 3 L. Bep. defendant is answerable for damage 
 
 Exch. 9 ; 17 L. T. n. s. 349 ; 27 or losses arising from gross negli- 
 
 L. J. Exch. 27; Kirby v. Great gence. Mytton v. Cock, 2 Stra. 
 
 Western Rail. Co., 18 L. T. jr. s. 1099. 
 658 ; Pepper v. South-Eastern Rail. 
 
32 THE LAW OF CARRIERS. 
 
 circumstance there are scarcely any decisions which enable 
 one to form a satisfactory conclusion as to the common-law 
 doctrine with regard to the rights of the bailee, as against the 
 mandator, which arise out of the contract. Mr. Story, how- 
 ever, in his learned work upon the Law of Bailments, without 
 endeavoring to discover how far the doctrines he states would 
 be adopted by the laws of England or America, has given a 
 clear statement of the civil law with regard to the obligations 
 of the mandator. 
 
 First. With regard to expense. — If the mandator gives his 
 goods to the bailee with a view to having something done to 
 them, in the process of which the bailee must necessarily incur 
 expense, he is bound to reimburse him ; " for it can never be 
 presumed that a gratuitous trust is designed to be a burden 
 on the mandatary." 1 If, however, the expenses have been 
 incurred wantonly, if they were unnecessary or in excess of 
 what was necessary, if the necessity for the outlay arose from 
 the gross negligence of the bailee, — from his fraud, or from 
 an unwarranted departure from the duties imposed by the 
 terms of the bailment, — they are not reimbursable. 
 
 Second. With regard to indemnity for incidental contracts 
 made by the mandatary? — A very similar principle is involved 
 in this question. If, in the course of the performance of the 
 duties imposed upon the bailee in the execution of the con- 
 tract, he gives a bond to a third party on behalf of the man- 
 dator, the latter is bound to indemnify him therefor. If, 
 however, anything in the original contract implied that the 
 mandatary was to bear the expense, this obligation upon the 
 part of the mandator would not arise. It is equally within 
 the power of a man to undertake to pay money as to give 
 labor. 
 
 Third. With regard to the obligation of the mandator to in- 
 demnify the mandatary for any losses or injuries sustained by 
 
 1 Story on Bailm. § 197, p. 180 ; 56, 57 ; Potliier, Contrat de Mandat. 
 
 Domat, B. 1, tit. 15, § 2, art. 2, 3 ; n. 69, 78, 79. 
 
 Dig. Lib. 17, tit. 1, 1. 10, § 9; Id. 2 Story on Bailm. § 198, p. ISO; 
 
 1. 27, § 4; Id. 1. 12, § 9 ; Potliier, Dig. Lib. 17, tit. 1, 1. 45. 
 Pand. Lib. 17, tit. 1, n. 53, 54, 55, 
 
CARRIERS WITHOUT HIRE. 66 
 
 Mm in the execution of the trust. — If the proximate cause of 
 the injury can be directly traced to the execution of the trust, 
 then, by the civil law, the mandator was liable to the manda- 
 tary. If, however, the execution of the mandate was only the 
 occasion of the injuries suffered by the mandatary, then the 
 bailor was not liable. 1 The distinction between cause and 
 occasion is of some importance. Thus, if a man asks his 
 neighbor, who is about to travel from London to Newcastle, to 
 carry some money for him to the latter place, and if, in tran- 
 situ, the money with which he has been intrusted is stolen, 
 together with his own, in such a case the mandator is not 
 liable for the loss sustained by the mandatary. If, however, 
 in order to perform the duties of a gratuitous bailment, the 
 mandatary undertakes a journey through a part of the country 
 which is infested with robbers, and whilst performing the jour- 
 ney he suffered some similar loss to that mentioned in the last 
 supposition, in such a case, according to the civil law, the 
 mandator would be liable. In the first case the mandate was 
 only the occasion of the loss, in the second it is the cause. 
 Similar cases are put by Story ; but he seems to overlook the 
 fact that even in the first case, if the sum which the manda- 
 tary undertook to carry was so great as to excite the cupidity 
 of robbers, — so great as to be bruited abroad, and to become 
 well known, — the mandator would have been held liable to 
 reimburse the mandatary for the loss he sustained. This 
 shows that all the circumstances must be taken into con- 
 sideration in deciding any such case. These are the principles 
 upon which the Roman law decided questions in which the 
 obligations of the mandatary arising out of the contract arose, 
 and there. seems every reason to regard it as probable that 
 similar principles would guide the decisions of our judges in 
 similar cases. 
 
 1 Story on Bailm. § 200, p. 181 ; Dig. Lib. 47, tit. 2, 1. 61, \ 5 ; Pothier, 
 Pothier, Pand. Lib. 17, tit. 1, n. 61 ; Contrat de Mandat. n. 75. 
 
34 
 
 THE LAW OP CARRIERS. 
 
 CHAPTER III. 
 
 CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 
 
 Sec. 32. Who are Private Carriers. 
 
 33. Ordinary Negligence. 
 
 34. The Loss of Goods raises Pre- 
 
 sumption of Negligence, 
 
 35. Limitation of Liability. 
 
 36. Assumption of Responsibility by 
 
 Private Carrier. 
 
 Sec. 37. Effect of continued Custody of 
 Goods by Owner. 
 
 38. Rule in Whalley v. Wray. 
 
 39. Duty of Private Carrier enlarged 
 
 by Terms of Contract. 
 
 SEC. 32. Who are Private Carriers. — A person whose trade 
 is not that of conveying goods from one place or person to an- 
 other, may nevertheless, upon occasion, undertake to carry the 
 goods of another, and receive a reward for so doing. Such a 
 person is a private carrier? In this chapter we will consider 
 
 1 An essential characteristic of a 
 common carrier is that he holds him- 
 self out as such to the world, and 
 undertakes generally, and for all per- 
 sons indifferently, to carry goods and 
 deliver them for hire, and that his 
 public profession of his employment 
 must be such that if he refuses to do 
 so, without some just ground, for 
 any one, in the course of his employ- 
 ment, and for reasonable and custom- 
 ary prices, he is liable to an action 
 (3 Kent's Com. 597 ; Story on Bailm. 
 § 495; Fish v. Clark, 2 Lans. 
 (N. Y.) 178, affirmed 49 N. Y. 122 ; 
 Allen v. Sackrider, 37 N. Y. 341); 
 and a person who has never assumed 
 or offered to carry goods of a certain 
 class, except upon special rates or terms 
 exempting him from liability therefor as 
 a common carrier, is not, as to that 
 class of property, a common carrier. 
 Lake Shore, &c. R. R. Co. v. Perkins, 
 25 Mich. 329. As to such property, 
 
 the carrier assumes only the relation 
 of a private carrier ; and such is the 
 case in all instances where the carrier 
 may take or refuse freight at his op- 
 tion, and only upon special rates or 
 terms to be agreed upon. Thus the 
 owner of a canal boat, used generally 
 for transporting his own merchandise, 
 entered into a contract with common 
 carriers to transport a boatload of 
 merchandise for them at an agreed 
 price. The boat met with an accident 
 on its way, on account of which, and 
 without the fault or negligence of the 
 defendants or their boat's crew, the 
 boat and property were badly injured, 
 and the latter partially lost. The 
 court held that the defendants were 
 not common earners, and consequent- 
 ly could not be held chargeable for the 
 loss of the goods. "It is," said the 
 court, "the business of carrying goods 
 for others, not a single act known to the 
 consignor to be outside his usual em- 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 
 
 35 
 
 the liability of such carriers. We have seen that a mandatary 
 is bound to exercise a certain amount of care in the execution 
 
 ployment, which fixes the liability of 
 a common carrier." Fish v. Clark, 49 
 N. Y. 122. In Allen v. Sackrider, 37 
 N. Y. 341, Pabkeb, J., in delivering 
 the opinion of the court, says : " The 
 employment of a common carrier is a 
 public one, and he assumes a public 
 duty, and is bound to receive aud car- 
 ry the goods of any one who offers." 
 He also quotes with approval Mb. 
 Paesons's definition as to what consti- 
 tutes a common carrier, as follows : 
 " On the whole, it seems to be clear 
 that no one can be considered a com- 
 mon carrier unless he has in some way 
 held himself out to the public as a car- 
 rier, in such a manner as to render 
 him liable to an action if he should 
 refuse to carry for any one who wished 
 to employ him." See SeU' v. Dunn, 
 42 Ga. 528. And it seems that any 
 person who undertakes and holds him- 
 self ont to carry for hire, without 
 special contract, incurs the responsi- 
 bility of a common carrier. Mass v. 
 Bettis, 4 Heisk. (Tenn.) 661. In 
 most of the States it is held that the 
 owners of a tow-boat, who undertake 
 to tow vessels and boats loaded with 
 merchandise, are not common carriers 
 as to such boats and merchandise. 
 Caton v. Rumney, 13 Wend. (N. Y.) 
 387 ; Arctic Fire Ins. Co. v. Austin, 
 54 Barb. (N. Y.) 559; Varble v. 
 Bigley, 14 Bush (Ky.), 598. But in 
 Louisiana it is held that a tow-boat 
 used in towing barges and water-crafts 
 laden with merchandise is as much a 
 common carrier of such merchandise 
 as though it was laden on herself. 
 Bussey v. Mississippi Valley Trans- 
 portation Co., 24 La. An. 165. And 
 a similar doctrine has been held in 
 North Carolina. Walston v. Myers, 
 5 Jones (N. C), 174. And in New 
 
 Jersey (Ashmore v. Steam Towing, 
 &c. Co., 28 N. J. L. 180) and in 
 California (White v. Mary Ann, 6 
 Cal. 470) the courts intimate a ten- 
 dency to adopt this view, although the 
 question was not actually decided ; 
 while in New York (Wells v. Steam 
 Navigation Co., 2 N. Y. 204), Penn- 
 sylvania (Brown v. Clegg, 63 Penn. 
 St. 51 ; Taylor v. Campbell, 1 Pittsb. 
 (Penn.) 459 ; Hays v. Millar, 77 Penn. 
 St. 238 ; Leonard v. Heudrickson, 18 
 Penn. St. 40), and Kentucky (Varble v. 
 Bigley, 14 Bush (Ky.), 428), it is 
 held that they are not common car- 
 riers, nor subject to liability as such 
 for injury to or loss of the vessels or 
 property in tow ; and such also is the 
 doctrine of the United States Court 
 (Transportation Linew. Hope, 95 U. S. 
 297). In Brown v. Clegg, 63 Penn. 
 St. 51, Read, J., carefully reviewed 
 the authorities, and said : — 
 
 "The common-law rule applies only 
 to goods, and not to vessels or boats, 
 to which it cannot be extended except 
 by a forcible perversion of its terms 
 and meaning. Towage by steam is a 
 different and new business, to which 
 should be applied the ordinary rules 
 of bailees for hire ; and this has been 
 the clear understanding of the com- 
 munity in this State. In Leech t>. The 
 Owner of the Steamboat Miner, 1 Phila. 
 (Penn.) 144, the action was for the 
 loss of two boats loaded with coal, al- 
 leged to have been lost by the careless- 
 ness of the defendant, who had under- 
 taken to tow them from the mines on 
 the Monongahela to the landing at 
 Pittsburgh. Loweib, J., charged the 
 jury, ' that the owners of a tow-boat 
 are not liable as common carriers for 
 the safety of the boats and their con- 
 tents which they undertake to tow. 
 
36 
 
 THE LAW OF CARRIERS. 
 
 of his gratuitous services, and that, should he prove grossly 
 negligent, he will be liable to the mandator. But it would be 
 
 In the performance of the duty they 
 are bound to exercise ordinary care 
 and skill in directing their movements, 
 and are liable if the accident arose 
 from such want of care and skill.' In 
 Leonard v. Hendrickson, which was 
 the case of a raft taken in tow by a 
 steamboat, Hepburn, J., in the same 
 court held that the owners of the boat 
 were not common carriers. This case 
 was taken to the Supreme Court, and 
 there affirmed, and is reported in 18 
 Penn. St. 40. A very able opinion was 
 delivered by Chambers, J., considering 
 the question upon reason and authority, 
 rejecting the Louisiana doctrine, and 
 adopting the New York rule as unani- 
 mously laid down by the Court of Ap- 
 peals in Wells v. Steam Navigation 
 Co., 2 N. Y. 207. In Hays v. Paul, 
 52 Penn. St. 134, the court below 
 affirmed the defendant's point, 'that 
 the owners of a steamboat employed 
 in towing boats are not common car- 
 riers, and are only bound to take such 
 reasonable degree of care and attention 
 that the owner of the boat or raft 
 towed shall incur no damage or loss 
 through the negligence or defanlt of 
 the owner of such steamboat, or of his 
 servant.' The case was tried and de- 
 cided upon this principle, and affirmed 
 by the Supreme Court. It appears, 
 therefore, to be the settled rule in 
 Pennsylvania that the owners of steam 
 tow-boats are not common carriers. 
 I am aware of the opinion of Kane, 
 J., in Vanderslice v. The Steam Tow- 
 boat Superior, in admiralty, in the Dis- 
 trict Court of the United States for the 
 Eastern District of Pennsylvania, re- 
 ported in 2 Am. L. J. n. s. 847, 
 and in 13 Law Rep. 399. The learned 
 judge agrees with Chancellor Kent, 
 and disagrees with Story, J., and 
 
 with the case in 3 Hill (N. Y.), 9, in 
 holding steam-lugs common carriers. 
 After stating various reasons for con- 
 sidering them common carriers, he 
 says : ' These considerations urge us 
 very strongly to hold the steam-tug to 
 the rigid accountability of a common 
 carrier ; but I do not think it neces- 
 sary to decide the question.' There 
 is no date to this opinion ; but as the 
 libel was for damage done to a boat 
 and her cargo in March, 1846, and 
 as neither the case in 7 Hill (N. Y.), 
 533, nor that in 18 Penn. St. 40, is 
 referred to, it must have been prior to 
 the publication of those cases, the last 
 of which would have had a controlling 
 influence over the mind of the judge. 
 In 1 Wharton's Dig. (6th ed. 1853) 
 203, under the head of Bailment, 1, 
 Common Carrier, part 11, the digester, 
 after stating the case of Vanderslice v. 
 The Superior, as if it had been a posi- 
 tive decision that a steam-tug towing 
 boats for hire was a common carrier, 
 adds : ' This case was affirmed on ap- 
 peal to the Circuit Court by Grier, J., 
 on the ground that there had been a 
 want of ordinary care on the part of 
 the steam-tug, but he declined to rule 
 that she was a common carrier.' In 
 the supplement of Wharton's Digest 
 published in 1865, under the head 
 Bailments, page 42, ' Who are Com- 
 mon Carriers ? ' '3. Steam-tugs are 
 not liable as common carriers for the 
 safety of vessels which they are tow- 
 ing, or of their cargo. Hinter ». 
 Steam-tug Enterprise ; Hinter v. The 
 Steamer Napoleon, 3 Wall. (U. S.) 5.' 
 It is clear the dictum of Kane, J., 
 did not form the grounds of decision 
 in the case before him, nor of any 
 other case in the third circuit, so felr 
 as we know. The decisions on this 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 37 
 
 somewhat unreasonable only to expect the same amount of 
 care in the case where the benefit to be derived from the bail- 
 
 point in the State courts and in 
 those of the United States entirely 
 harmonize. In Merrick «. Brainard, 
 38 Barb. (N. ¥.) 574-585, the court 
 say : ' One who contracts to tow a 
 boat laden with merchandise for an- 
 other is not a carrier, and does not 
 assume, nor is lie charged with, the 
 duties and responsibilities of a car- 
 rier. Wells v. Steam Navigation Co., 
 2 Comst. 204. In the same case (4 
 Seld. 375) it was held that the owners 
 of a tow-boat, in the absence of an ex- 
 press contract limiting their liability, 
 are bound to exercise ordinary care 
 and diligence, and are liable for the 
 want thereof.' Iu the Court of Ap- 
 peals, in Merrick v. Van Santvoord 
 el aL, 34 N. Y. 208, this case was 
 modified by reversing the judgment 
 of the court below, as to the defend- 
 ant Van Santvoord, who had been 
 held liable as a mere stockholder in a 
 Connecticut corporation, but affirming 
 tlie judgment as against the defendant 
 Brainard, upon the principle just stated. 
 ' We have examined the questions 
 raised by the appeal which affect the 
 defendant Brainard, and think the 
 judgment as to him should stand for 
 the reasons assigned in the court be- 
 low,' in which all the judges con- 
 curred. Betts, J., in Abbey v. Steam- 
 boat B. L. Stevens, 22 How. Pr. 
 (N. Y.) 78, in the District Court of the 
 United States for the Southern District 
 of New York. The decision in The 
 Princeton, 3 Blatchf. (U. S. C. C.) 
 54, by Nelson, J., one of the judges 
 who decided the case of Alexander v. 
 Greene, 3 Hill (N. Y.), 9, looks in 
 the same direction, and can bear no 
 other interpretation. In The Steam- 
 boat Angelina Corning, 1 Ben. (U. S. 
 C. C.) 109, Benedict, J., of the 
 
 United States District Court for the 
 Eastern District of New York, 
 held that a steam-tug is not a com- 
 mon carrier of the vessel she tows. 
 In The Steamer New Philadelphia, 
 1 Black. (U. S.) 62, it seems to have 
 been taken for granted in the District 
 and Circuit Courts, and in the Supreme 
 Court, that the steam-tug New Phila- 
 delphia was not a common carrier of 
 the coal-barge she had in tow ; and the 
 ground of claim by the libellant for 
 the damages to the tow was that they 
 were occasioned by negligence and 
 want of ordinary skill, care, and pru- 
 dence on the part of those who were 
 intrusted with the navigation of the 
 tug. It may therefore be affirmed that 
 by the law of Pennsylvania, and also 
 of New York, as administered by the 
 courts of those States, and by the 
 courtsof the United States in the second 
 and third circuits, steam tugs or boats 
 are not common carriers of the vessels 
 they tow. The cases in England are 
 generally in the admiralty, which has 
 jurisdiction of towage, and which is 
 often connected with salvage. In 
 Symonds v. Pain, 6 H. & N. 709, 
 which was an action by the owner of a 
 smack against the owners of a steam- 
 tug employed to tow his smack out of 
 the harbor, for negligence of the mas- 
 ter of the tug, by which the smack 
 was stranded, the declaration was in 
 the common form for negligence in 
 towing the plaintiff's vessel out to sea. 
 The defence set up was a special no- 
 tice on the back of the printed re- 
 ceipts given by the defendants, exempt- 
 ing them from all liability for any loss 
 or damage, whether arising from or 
 occasioned by any supposed negli- 
 gence or default of them or their ser- 
 vants, and the question was whether 
 
38 
 
 THE LAW OF CARRIERS. 
 
 ment is to be mutual, and therefore the law exacts what has 
 been called ordinary diligence from a private carrier, and 
 
 the plaintiff had knowledge of this 
 notice. The Lord Chief Baron ex- 
 pressed the opinion that the contract 
 was upon the terms of the notice, and 
 that it was evident the defendants did 
 not undertake for the charge of seven 
 shillings and sixpence to be insurers 
 against accidents to the vessels they 
 towed; and the plaintiff was then non- 
 suiled. Upon a motion for a new 
 trial in showing cause, defendants' 
 counsel said : ' This is not the case of 
 a common carrier. There was no 
 common-law obligation on the de- 
 fendants to tow the plaintiff's vessel, 
 but the liability depends on con- 
 tract.' Baeon Martin said: 'I am 
 of opinion that it was a question for 
 the jury, what was the contract the 
 plaintiff and defendants entered into, 
 and that it was not a question of law 
 for the judge to decide. Whether the 
 plaintiff had knowledge of the notice 
 by reason of having the receipts was 
 essentially a question of fact, and ought 
 not to have been withdrawn from the 
 consideration of the jury.' A new 
 trial was granted ; and upon a second 
 trial before Brlb, C. J., the learned 
 judge left it to the jury to say whether 
 the contract between the plaintiff and 
 defendant was made on the terms 
 printed on the back of the receipts, 
 and, the jury having found in the af- 
 firmative, plaintiff elected to be non- 
 suited. In The Minnehaha, 1 Lush. 
 335, and in the Judicial Committee of the 
 Privy Council, Lord Kingsdown said: 
 ' When a steamboat engages to tow a 
 vessel for a certain remuneration from 
 one point to another, she does not 
 warrant that she will be able to do so, 
 and will do so, under all circumstances 
 and at all hazards ; but she does en- 
 gage that she will use her best endeav- 
 
 ors for that purpose, and will bring to 
 the task competent skill, and such a 
 crew, tackle, and equipments as are 
 reasonably to be expected in a vessel 
 of her class. She may be prevented 
 from fulfilling her contract by a vis 
 major, by accidents which were not 
 contemplated, and which may render 
 the fulfilment of her contract impos- 
 sible, and in such case, by the general 
 rule of law, she is relieved from her 
 obligations. But she does not become 
 relieved from her obligations because 
 unforeseen difficulties occur in the 
 completion of her task; because the 
 performance of the task is interrupted 
 or cannot be completed in the mode in 
 which it was originally intended, • — as 
 by the breaking of the ship's hawser. 
 But if in the discharge ofhertask, by sud- 
 den violence of wind, or waves, or other 
 accidents, the ship in tow is placed in 
 danger, and the towing vessel incurs 
 risks and performs duties which were 
 not within the scope of her original 
 engagement, she is entitled to additional 
 remuneration for additional services, 
 if the ship be saved, and may claim as 
 a salvor, instead of being restricted to 
 the sum stipulated to be paid for mere 
 towage.' In the cases on this subject 
 the towage contract is generally spoken 
 of as superseded by the right to salvage. 
 In the case of The Julia, in the Judicial 
 Committee of the Privy Council, 11 
 Moore P. C. 210, 1 Lush. 224, Lord 
 Kingsdown said: 'When the contract 
 was made, the law would imply an en- 
 gagement that each vessel should per- 
 form its duty in completing it, that 
 proper skill and diligence would be used 
 on board of each, and that neither vessel 
 by neglect or misconduct could create 
 unnecessary risk to the other, or in- 
 crease any risk which might be inci- 
 
CAREIEES FOR HIKE WHO ARE NOT COMMON CARRIERS. 
 
 39 
 
 makes a private carrier responsible for ordinary neglect. 1 
 When, however, a man holds himself out to the public as a 
 
 dental to the service undertaken.' 
 So, where a steam-tug, to avoid 
 being crushed by collision, let go her 
 tow and slipped out from between the 
 two vessels, and dropped astern, 'it 
 was admitted on all sides that this 
 manoeuvre was perfectly justifiable.' 
 The Annapolis, P. C, 5 Law Times 
 "R. 38. It is clear from these au- 
 thorities that steam tow-boats or tugs 
 are not, by the law of England, com- 
 mon carriers of the vessels they tow. 
 The cases in the United States which 
 are supposed to express a contrary 
 opinion are White v. Mary, 6 Oal. 
 462, October term, 1856, where Jus- 
 tice Heydenfeldt, delivering the 
 opinion of the court, says : 'It is im- 
 material to consider whether the de- 
 fendant was or was not a common 
 carrier, although. I think she was, 
 according to the most striking analo- 
 gies.' In Walston v. Myers, 5 Jones 
 (N. 0.), 174, Judge Peaeson said •. 
 ' We are inclined to the opinion that 
 the defendants, John and Redding 
 Myers, the owners of the steamboat, 
 were common carriers, in respect to 
 the plaintiff's flat they had in tow.' 
 In Ashmore v. Penn. Steam Towing 
 Trans. Co., 28 N. J. L. 180, one judge, 
 upon a motion for a new trial, deemed 
 it unnecessary to decide whether a 
 tower was a common carrier. Another 
 judge held, both upon principle and 
 authority, that he was not a common 
 carrier. A third seemed to be of the 
 opinion that he was a common carrier ; 
 and the chief justice, who had tried 
 the cause, and who had not charged the 
 jury that the steamboat was a common 
 carrier, concurred with the majority 
 in dismissing the motion for anewtrial. 
 
 In Sproul v. Hemmingway, 14 Pick. 
 (Mass.) 1, a brig which was towed at 
 the stern of a steamboat, employed in 
 the business of towing vessels in the 
 river Mississippi, below New Orleans, 
 was, through the negligence of the 
 master and crew of the steamboat, over 
 whom those in charge of the brig had 
 no control, brought into collision with 
 a schooner lying at anchor. It was 
 held that the owner of the brig was 
 not responsible for the damage sus- 
 tained by the schooner. There is 
 nothing in this case showing that the 
 court regarded the steamboat as a 
 common carrier ; and this is remark- 
 able because the case of Smith v. 
 Pierce, 1 La. 349, in which the own- 
 ers of steam tow-boats on the Mis- 
 sissippi were held liable as common car- 
 riers, had been decided in May, 1830, 
 and published in 1831, two years before 
 the decision of the Massachusetts case. 
 Of the text-writers, Story on Bailm. 
 7th ed. §496, says: 'The owners of 
 a steamboat, who undertake to tow 
 freight-boats for hire, or undertake to 
 tow vessels in or out of port for hire, 
 are not common carriers, but are re- 
 sponsible only for ordinary care, skill, 
 and diligence in their undertaking.' 
 And in 1 Parsons on Shipping and 
 Admiralty, p. 247, it is said ' steam 
 tow-boats are not generally considered 
 common carriers in respect to the 
 boats they have in tow.' The de- 
 tailed examination we have made 
 of the authorities upon this point 
 shows conclusively that in Pennsyl- 
 vania the law is definitely settled that 
 steam tow-boats or tugs are not com- 
 mon carriers as regards the vessels 
 they have in tow, and their cargoes. 
 
 1 See ante, p. 8. 
 
40 
 
 THE LAW OP CARRIERS. 
 
 carrier by trade, or a common carrier, when those who trust 
 him do it because he professes to devote his whole attention 
 
 There is nothing in any of the other 
 specifications of error, and the judg- 
 ment is therefore affirmed." 
 
 There is a class of cases in which, 
 the rule relative lo common carriers 
 has been apparently enlarged so as to 
 embrace carriers who only incidentally 
 exercise that employment ; but upon 
 examination it will be found that they 
 do not essentially vary the rule. Thus, 
 in Iowa, in Bruce v. Dubuque Street 
 Railway Co., 53 Iowa, 278, 36 Am. 
 Rep. 221, the proprietors of hacks 
 used to convey passengers for hire 
 were treated as being common carriers, 
 and liable for injuries to passengers as 
 such. Li Sales v. Western Stage Co., 
 4 Iowa, 547, a similar doctrine was 
 held as to stage companies transport- 
 ing passengers from one point to an- 
 other. But it is questionable whether 
 hack proprietors can be regarded as 
 common carriers strictly,, unless by 
 law, State or municipal, they are 
 bound to transport passengers who 
 apply to them, at certain rates fixed 
 by law, or otherwise ; nor indeed was 
 ■ it essential, in the case referred to, to 
 hold them to be common carriers to 
 bring them within the rule of liability 
 stated in the case ; nor is it directly 
 held in the case that they are common 
 carriers. But the court indirectly in- 
 timate that they are to be so regarded ; 
 but this doubtless is inadvertent, as 
 they hardly come within the rule pre- 
 viously stated, as decisive of the ques- 
 tion whether or not a person is a 
 common carrier. The court doubtless 
 intended to be understood that in the 
 transportation of passengers they were 
 under the same obligations as common 
 carriers are, under the rule that a car- 
 rier of passengers is bound to exercise 
 the highest degree of diligence in their 
 
 transportation; but to hold that in 
 any other respect hack proprietors 
 are ordinarily subject to the duties 
 and obligations of common carriers, is 
 hardly believed to be accurate. In 
 Gordon v. Hutchinson, 1 W. & S. 
 (Penn.) 285, a wagoner who carried 
 goods for hire was held to assume the 
 responsibilities of a common carrier, 
 whether it is his direct business or 
 not ; and, generally, the question as to 
 whether such a carrier contracted as a 
 common carrier is a question for the 
 jury. Fuller v. Bradley, 25 Penn. St. 
 120. But it by no means follows, 
 because in a given case the carrier has 
 assumed the responsibilities of a com- 
 mon carrier, expressly or impliedly, 
 that he is a common carrier within the 
 technical meaning of the term. In all 
 the cases a person is only regarded as 
 technically a common carrier when he 
 bolds himself out as such, and places 
 himself in such a position that he is 
 bound to receive the goods of any per- 
 son offering them for transportation, 
 at the same rates that the same class 
 of goods are transported for others, 
 which is never the case where the car- 
 rier is at liberty in all cases to accept 
 or refuse them at his option, and to 
 make his own terms in every case. 
 Pish v. Chapman, 2 Ga. 353 ; Jones 
 on Bailm., 103, note (d), 3d London 
 ed. ; Jackson v. Rogers, 2 Show. 327 ; 
 Pish v. Clark, ante. One of the dis- 
 tinctive tests for determining whether 
 or not a person is a common carrier, 
 and probably the decisive one, is, 
 whether he has consented to he hound 
 as such. By this, it is not to be un- 
 derstood that his assent to the taking 
 upon himself of these onerous liabili- 
 ties need be express, because it may 
 arise as a necessary legal inference 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 41 
 
 and skill to the business of conveying goods, and because they 
 naturally think that a man who does a thing often is more 
 
 from his acts, or may be imposed by 
 statute, or may arise from the circum- 
 stance that he is licensed to act in that 
 capacity, and is required to assume 
 this relation as a condition to the 
 granting of the license. " The liabili- 
 ties of common carriers," says Cafek, 
 J., in Varble v. Bigley, 14 Bush (Ky.), 
 698, " is upon contracts implied by 
 law. No one can become bound by 
 such contracts, unless he has either con- 
 sented to be bound in that character or 
 has so acted as to justify the belief that 
 he intended to be so bound. Without 
 actual consent or conduct from which 
 it can be presumed, no one can become 
 liable as a common carrier, any more 
 than upon any other character of con- 
 tract. The law applicable to them is 
 extremely rigorous. It is founded in 
 public policy and not in abstract jus- 
 tice." They are not permitted to 
 shield themselves from liability hy 
 showing that they exerted the highest 
 degree of care to avert the casualty. 
 The law holds them in fault, however 
 blameless they may show themselves 
 to be, unless the casualty resulted 
 from the act of God or the king's ene- 
 mies. " When a person has assumed 
 the character of a common carrier, 
 either by expressly offeriug his services 
 to all who will hire him, or by so con- 
 ducting his business as to justify the 
 belief on the part of the public that he 
 means to become the servant of the 
 public, and to carry for all, he may 
 safely be presumed to have intended 
 to assume the liabilities of a common 
 carrier, for he was bound to know that 
 the law would so charge him, and, 
 knowing, must have intended it. But 
 in order to impress upon him the char- 
 acter, and impose upon him the lia- 
 bilities, of a common carrier, his con- 
 
 duct must amount to a public offer to 
 carry for all who tender him such 
 goods as he is accustomed to carry. 
 When this is the case, then those who 
 tender him goods to carry accept his 
 offer, and he becomes bound to carry 
 them ; and if he refuses to do so, 
 " haviug convenience," and being ten- 
 dered satisfaction for the carriage, he 
 is liable to an action, unless he has 
 reasonable excuse for his refusal. 
 Jackson v. Rogers, 2 Show. 327 ; 
 Riley v. Home, 5 Bing. 217 ; Cotton 
 v. Franklaud, 1 Ld. Raym. 646; 2 
 Kent's Com. 598. 
 
 This duty is inseparable from the 
 character of a common carrier. By 
 his conduct he induces the public to 
 rely upon him to do their carrying. 
 He is continually offering his services ; 
 and when his offer is accepted, he has 
 no right to refuse performance. But 
 when he has not held himself out in 
 such way as to amount to an offer to 
 carry for all shippers, no one has a 
 right to depend upon him, or to de- 
 mand that, as matter of duty, he shall 
 carry his goods, and he may refuse, 
 though he has room to spare, and his 
 charge for carriage be tendered. If 
 he is bound to carry for all who offer, 
 then he is a common, a public, car- 
 rier, and whatever he receives as a 
 common carrier, he is bound for in 
 that character. The duty to receive 
 and the liability to account are correla- 
 tive, and a carrier must receive and 
 transport in the same character. If 
 he receives as a private carrier, he car- 
 ries and is liable in that character, and 
 that only; he is bound according to 
 the tenor of his contract. If he re- 
 ceives as a common carrier, he carries 
 and is liable in that character, unless 
 he has contracted for a modified lia- 
 
42 
 
 THE LAW OP CARRIERS. 
 
 likely to do it efficiently and well than a man who does it only 
 occasionally, then there is an implied contract that he will use 
 his skill, and the law protects him only when the loss of or 
 injury to the goods has been caused by the acts of God or the 
 queen's enemies. At all events, he is bound to preserve them. 
 He was applied to, and paid, that the owner of the goods 
 might feel confidence that the goods would be safely delivered 
 to the consignee, and his responsibility cannot be avoided by 
 the proof of any amount of. diligence upon his part. This dis- 
 tinction between carriers for hire who are not common car- 
 riers, and common carriers, is one of considerable importance. 
 The latter, as it were, insures the safety of the goods either 
 expressly or by implication; while the former, as being a 
 bailee for valuable consideration, is bound only to use ordinary 
 diligence, and avoid culpable neglect in his duties as carrier. 
 
 Sec. 33. Ordinary Negligence. — Ordinary negligence is the 
 absence of ordinary diligence ; and ordinary diligence is that 
 amount of care which a prudent man ordinarily takes of his 
 own goods or his own business. 1 The absence of this care, 
 
 bility. The result of this line of rea- 
 soning is, that a carrier of goods is not 
 liable as a common carrier, -unless he 
 was under a legal obligation to accept 
 the goods and carry them, and would 
 have been liable to an action if, with- 
 out reasonable excuse, he had refused 
 to receive them ; and that he could not 
 be liable to an action unless he had 
 expressly and publicly offered to carry 
 for all persons indifferently, or had, 
 by his conduct and in the manner of con- 
 ducting his business, held himself out 
 as ready to carry for all. See opinion 
 of Caper, J., ante. There is a class 
 of cases where these rules have been 
 ignored ; but upon examination, it will 
 be found that they were hastily de- 
 cided, no reasons being given for the 
 doctrine, and no authorities cited to 
 sustain it. Thoughtful and intelligent 
 courts are extremely careful in extend- 
 ing the law so as to embrace a class of 
 
 persons who have not expressly as- 
 sumed the character of common car- 
 riers, or, by their conduct and from the 
 nature of their business, justified the 
 belief on the part of the public that 
 they intended to assume it ; and Chief 
 Justice Marshall, in Boyce v. An- 
 derson, 2 Pet. (U. S.) 150, well said: 
 " Though to the extent to which the 
 law has been applied we admit its 
 necessity and its policy, we do not 
 think it ought to be carried farther or 
 applied to new cases." 
 
 1 Ordinary care is such care as men 
 of ordinary sense, prudence, and ca- 
 pacity would take under like circum- 
 stances in the conduct and manage- 
 ment of their affairs, Shaw v. Boston, 
 &c. R. R. Co., 8 Gray (Mass.), 45 ; 
 Shrewsbury v. Smith, 12 Cush. (Mass.) 
 177, and has relation to the situation 
 of the parties, the business in which 
 they are engaged, and varies according 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 43 
 
 then, will, where it occasions loss or damage to the goods 
 which have been placed in the hands of a private carrier with 
 a view to their conveyance from one place to another, render 
 him liable to the owner for such loss or injury. It follows, 
 however, that the private carrier will not be liable if the goods 
 which were under his care were taken from him by force. 
 " If," says Lord Abinger, C. B., " a man agrees to carry goods 
 for hire, although not a common carrier, he thereby agrees to 
 make good all losses arising from the negligence of his ser- 
 vants, although he would not be liable for losses by thieves or 
 by any taking by force." x A distinction, however, is to be 
 drawn between an open theft, which is effected by force, and 
 a secret purloining. In the first of these the bailee is evi- 
 dently relieved from all responsibility. The notoriety of the 
 crime is sufficient proof that no vigilance upon the part of 
 the bailee could have avoided the misfortune, any more than 
 care upon his part could prevent a horse with which he is 
 intrusted being killed by lightning. In the other case, how- 
 ever, where the theft has been accomplished by means of cun- 
 ning, and not by means of force, there is a necessity for some 
 proof upon the part of the bailee that he used the amount of 
 care which a prudent man would use to protect his property 
 from such casualties. Indeed, the fact that the goods have 
 been stolen under, such circumstances raises a presumption 
 that the requisite amount of care has not been taken ; and it 
 is for the carrier to rebut this presumption if he can. 2 
 
 to the circumstances, and must con- 2 Hodgson v. Tullarton, 4 Taunt, 
 form in degree to the circumstances 786 ; Montague v. Janverin, 3 Taunt, 
 under which it is to be exerted. Cun- 442 ; Hatohwell v. Cooke, 6 Taunt, 
 ningham v. Hall, 4 Allen (Mass.), 576. This presumption exists also 
 268. And where the personal safety or in cases where a passenger is in- 
 life of a human being is concerned, a jured by reason of the breaking of 
 higher degree of vigilance is required the machinery used in transportation, 
 tlian is required in other cases. Cazzer Yerkes v. Keokuk, &c. Packet Co., 
 v. Taylor, 10 Gray (Mass.), 274. And 7 Mo. App. 265 ; Eagle Packet Co. v. 
 the same sliding scale is applied to Defries, 94 111. 598 ; Lemon v. Chan- 
 property, the degree of vigilance re- slor, 68 Mo. 340. This presumption 
 quired varying according to the char- does not extend to all classes of 
 acter and value of the property. property. Thus, where a horse in ap- 
 1 Brind v. Dale, 8 C. & P. 207; parent good health was shipped on 
 2 M. & R. 80. board a steamer, and was delivered in 
 
44 THE LAW OP CARRIERS. 
 
 Sec 34. The Loss of Goods raises Presumption of Negligence. 
 — That the loss of goods affords a primd facie presumption 
 of negligence and want of care will be evident from the two 
 following cases. In the one, the declaration alleged that the 
 plaintiff delivered to the defendant SI., to be carried to and 
 delivered at the " Black Boy " Inn, in South wark ; that the 
 defendant, in consideration of the premises, and " for that the 
 plaintiff did undertake reasonably to content him for the car- 
 riage, promised safely to convey it thither and deliver it at 
 the said inn to the plaintiff, but that he had not done so." It 
 was held that the defendant, in that he had undertaken to 
 carry the goods of the plaintiff to a certain place for hire, and 
 had neglected to do so, was liable upon such a promise, al- 
 though he was not a common carrier, and although no sum 
 certain had been promised him as the price of the carriage. 1 
 In the other case, the defendant was a proprietor of cabs, and 
 the plaintiff hired one of his cabs for the conveyance of him- 
 self and his luggage to the terminus of the Great Western 
 Railway, at Paddington. On the arrival of the vehicle at the 
 railway station, a portion of .the plaintiff's luggage was found 
 to be missing. It was held that the acceptance of the luggage 
 by the cabman to be carried along with the passenger for hire 
 implied a promise upon his part to carry " safely and securely" 
 and that he was therefore liable for the portion of the luggage 
 which was lost by the way. 2 
 
 sick and dying condition, it was held being discovered until after delivery to 
 that a recovery could not be had with- the consignee, but there was evidence 
 out showing some negligence on the that the box had been opened and the 
 part of the carrier, and that until such nails redriven, but there was no evi- 
 evidence is given the burden is not dence as to the care taken of the box 
 shifted upon the carrier to show that after its delivery down to the lime the 
 he was not in fault. The Sarragossa, loss was discovered, it was held that 
 3 Woods (U. S. C. C), 380. Nor the evidence was not sufficient to war- 
 does this presumption exist where the rant a finding that the package was 
 property has been delivered to the con- abstracted while in the carrier's pos- 
 signee some time before the injury or session. Canfield v. Baltimore & Ohio 
 loss is discovered, and the injury or R. R. Co., 75 N. Y. 144. 
 loss might have occurred after the de- * Rogers v. Head, Cro. Jac. 262. 
 livery. Thus, in an action against a 2 Ross v. Hill, 2 C. B. 877. See 
 carrier to recover for a package of also Harris v. Costar, 1 C. &. P. 636 ; 
 jewelry lost from a box, the loss not Dudley v. Smith, 1 Camp. 167 ; Cairns 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 45 
 
 It is clear, then, that the amount of care required from a 
 private carrier for hire is what has been designated ordinary 
 diligence ; and, in many cases, it is a question entirely for the 
 jury to answer, whether ordinary diligence has been used. 1 
 Thus, in the case of Beck v. Evans, 2 the defendant's wagoner 
 was intrusted with a cask of brandy, to be carried for the 
 plaintiff from Shrewsbury to London. Upon the way the 
 wagoner was informed that the cask was leaking, and at 
 the time he took no steps to ascertain the correctness of the 
 information, or to stop the leak, if it existed. He remained 
 three hours at Birmingham without doing so, and it was not 
 until after he had passed through Wolverhampton that he 
 took the cask out of the wagon and saved what remained of 
 the brandy. The judge left it to the jury to consider whether 
 the injury arose from the negligence of the defendant's wag- 
 oner in not examining the cask after he was informed of its 
 leaky state. The jury found a verdict for the plaintiff. A 
 rule to set aside the verdict, on the ground of misdirection of 
 the judge, was moved for in the Court of King's Bench, but 
 was refused, on the ground that the defendant was miscon- 
 ducting himself by not performing a duty which, by his ser- 
 vant, he was bound to perform. 
 
 Sec. 35. Limitation of Liability. — But we have seen that 
 a special acceptance 3 may limit the liability of a carrier, and 
 in this way, or by means of a public notice, to the effect that 
 the carrier will not be liable, a great many common carriers 
 become private carriers for hire, or occupy the same position 
 to their employers as regards rights and liabilities. 4 Thus a 
 common carrier becomes a private carrier for hire, and, in 
 case of loss or damage to the goods of his bailor, he is liable 
 only for gross neglect, and has satisfied the implied condition 
 of the bailment if he has exercised ordinary care. Where the 
 
 v. Robins, 8 M. ft. W. 258 ; Beau- 2 1G East, 244. 
 champ v. Powley, 1 M. & Rob. 38 ; 8 Ante, p. 25. 
 Mackenzie v. Cox, 9 C. & P. 632. 4 Wyld v. Pickford, 8 M. & W. 
 
 1 Duffw.Budd, 6 Moore, 469; 2 B. 446; Lake Shore, &o. R. R. Co. v. 
 
 & B. 177 ; Batson v. Donovan, supra ; Perkins, 25 Mich. 329. 
 Becford v. Crutwell, 5 C. & P. 242 ; 
 1 M. & Rob. 187. 
 
46 
 
 THE LAW OP CARRIERS. 
 
 plaintiff had given the defendant, after a notice upon his part 
 that he would not be answerable for any losses beyond the 
 amount of 51., a small box, containing plate of the value of 
 104Z. Is. 1\d., to be carried by the defendants' servants from 
 Chester to London, the verdict was for the defendants ; and 
 when a new trial was moved for, the verdict was affirmed, on 
 the ground that it is necessary to establish a case of gross 
 negligence under such circumstances. 1 In another case, where 
 the defendants were proprietors of carriages for the convey- 
 ance of goods upon a railway, and it was stated in the decla- 
 ration that they had received nine horses of the plaintiff, to 
 be safely and securely carried in their carriages by the rail- 
 way for hire, and averred the loss of one of the horses by 
 reason of the insufficiency of one of the carriages, it appeared 
 that when the horses were received a ticket was given to the 
 plaintiff, stating the amount paid by him for the carriage of 
 the horses, and having at the bottom the following memo- 
 randum : " N.B. This ticket is issued subject to the owner's 
 
 1 Lowe v. Booth, 13 Price, 329. 
 See also Bodenham v. Bennett, 4 Price, 
 31, in which case the jury had found a 
 verdict for the plaintiff for* the full 
 value of the parcel lost, on the ground 
 that there had been gross negligence 
 on the part of the defendant's ser- 
 vants. Smith v. Home, 2 Moore, 18 ; 
 8 Taunt. 144 ; 5 B. & Aid. 57. But 
 in such cases notice of the limitation 
 must be given, or it will not be bind- 
 ing upon the shipper. Thus, where a 
 traveller in a dimly lighted car deliv- 
 ered the check for his trunk to the 
 agent of a baggage express company, 
 taking, without reading it, a receipt 
 designated upon the margin " domestic 
 bill of lading," marked with the num- 
 ber of the check and place of delivery, 
 and purporting to limit the carrier's 
 liability, save in eases of special con- 
 tract, to $100, and nothing was said as 
 to the contents of the trunk, it was 
 held that no contract upon the terms 
 
 of the receipt arose as a matter of law 
 from such acceptance, and that the 
 plaintiff could recover the full value of 
 the contents of the trunk. Madan v. 
 Sherard, 73 N. Y. 329. Indeed, in 
 all cases, in order to make such a re- 
 striction binding, it is incumbent upon 
 the carrier to show that the condition 
 was known or assented to by the con- 
 signor. Merchants' Despatch, &c. Co. 
 v. Theilbar, 86 111. 71; Adams Express 
 Co. v. King, 3 111. App. 316. But 
 where the bill of lading or receipt con- 
 taining the limitation is delivered be/ore 
 the goods are shipped, the shipper, by 
 accepting such bill of lading without 
 objection, will be treated as assenting 
 thereto. Louisville, &c. R. R. Co. v. 
 Brownlee, 14 Bush (Ky.), 590 ; Ger- 
 mania Eire Ins. Co. v. Memphis, &c. 
 R. R. Co., 72 N. Y. 90; Morrison 
 v. Phillips, &c. Construction Co., 44 
 Wis. 405. 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 47 
 
 undertaking all risks of conveyance whatsoever, as the com- 
 pany will not be responsible for any injury or damage (how- 
 ever caused) occurring to horses or carriages while travelling, 
 or in loading or unloading." It was held that the terms con- 
 tained in the ticket formed part of the contract for the carriage 
 of the horses, and that the alleged duty of the defendants, 
 safely and securely to convey the horses, did not arise upon 
 that contract. 1 There has, however, been an alteration in the 
 law since the decision of the case just quoted. The Railway 
 and Canal Traffic Act of 1845, 2 enacted that companies are to 
 be held liable for loss or injury of cattle, horses, goods, &c, 
 " in the receiving, forwarding, or delivering thereof, occasioned 
 by the neglect or default of such company, or its servants, 
 notwithstanding any notice, condition, or declaration made 
 and given by such company contrary thereto, or in any way 
 limiting such liability ; every such notice, condition, or decla- 
 ration, being hereby declared to be null and void: Provided 
 always, that nothing herein contained shall be construed to 
 prevent the said companies from making such conditions with 
 respect to receiving, forwarding, &c, the said animals, &c., as 
 shall be judged by the court or judge before whom any ques- 
 tion relating thereto shall be tried, to be just and reasonable." 
 In the case of Allday v. The Great Western Railway Com- 
 pany, 3 a condition contained in a special contract, headed 
 " Reduced Rates," that a railway company was not to be liable 
 for any damage on the conveyance of cattle, from suffocation, 
 or being trampled on or bruised, nor for any consequence 
 arising from over-carriage, detention, or delay, however caused, 
 
 1 Shaw v. York & North Midland ville v. Gt. North. Rail. Co., 16 Jur. 
 
 Rail Co., 6 Rail. Cas. 87; 13 Q. B. 578; 21 L. J. Q. B. 319; M'Cance. 
 
 347; 13 Jur. 385; 18 L. J. Q. B. v. London & North-Western Rail. 
 
 181. See also Austin v. Manchester, Co., 7 H. & N. 477 ; 31 L. J. Exch. 
 
 Sheffield, & Lincoln Rail. Co., 16 65 ; Gannell v. Ford, 5 L. T. s. s! 
 
 Q. B. 600; 15 Jur. 670; 20 L. J. 604. 
 Q. B. 440 ; Chippendale v. Lancashire 2 17 & 18 Vict. c. 31, § 7. 
 
 6 Yorkshire Rail. Co., 15 Jur. s 11 L. T. n. s. 267 ; 34 L. J. 
 1106 ; 21 L. J. Q. B. 22 ;. Carr u. 5 Q. B. See also Maynard v. Syra- 
 
 ^Lancashire & Yorkshire Rail. Co., ouse, &c. R. R. Co., 71 N. Y. 180 ; 
 
 7 Exch. 707 ; 7 Rail. Cas. 426 ; 17 Merchants' Despatch, &c. Co. v. Corn- 
 Jur. 397 ; 21 L. J. Exch. 261 ; Mor- forth, 3 Col. 280. 
 
48 THE LAW OP CARRIERS. 
 
 was held to be unreasonable, and that as the injury to the 
 plaintiff's cattle was the direct and proximate consequence of 
 the delay, the defendants were liable in an action for the 
 damage. . So in a more recent case, in which the death of one 
 of the cattle, which a railway company had undertaken to 
 carry, was caused by the delay occasioned by the servants of 
 the defendant company, the company was held liable for the 
 injury and loss, notwithstanding that the servant of the plain- 
 tiff had signed a consignment note which was in the usual 
 form, but which, among other conditions, contained one that 
 the company would not be answerable for any consequences 
 arising from over-carriage, detention, or delay in the convey- 
 ing or delivering of the cattle in time for a particular market, 
 however caused. 1 Baron Martin, in summing up, said : " As 
 long as I can remember, and probably half a century before, 
 there were always squabbles about carriers' notices. Railway 
 companies continued these notices until they were put an end 
 to by the Act. 2 If a railway company claims to make special 
 conditions, they must make such as are reasonable as a whole." 
 And the inference to be drawn from these cases, in so far as 
 it concerns our present purpose, is, that a common carrier may 
 so far limit the extraordinary liability which the law imposes 
 upon Mm, as to occupy the position of a private carrier for hire, 
 by means of reasonable conditions which are known to the owner 
 of the goods, and that in such a case a common carrier will be 
 held liable for ordinary negligence. 3 
 
 1 Kirbya. Great Western Rail. Co., R. R. Co., 24 Minn. 506; Ohio, &c. 
 18 L. T. ». s. 658. But see Morri- R. R. Co. t>. Dunbar, 20 111. 623 ; 
 son v. Phillips, &c. Construction Co., Kimball K.Rutland & Burlington R.R. 
 44 Wis. 405. Co., 26 Vt. 247 ; East Tennessee,-&c. 
 
 2 17 & 18 Viet. c. 31. R. R. Co. v. Whittle, 27 Ga. 535 ; 
 8 Lake Shore R. R. Co. v. Perkins, Roberts v. Riley, 15 La. An. 103. But 
 
 25 Mich. 329. There is now no ques- in a majority of the States it is held 
 
 tion but that a common carrier may, that they can impose no limitation 
 
 by special contract, relieve himself which exonerates them from liability 
 
 from liability as a common carrier, and for loss resulting from their own 
 
 assume to the property transported want of care, or that of their servants, 
 
 the relation of a private carrier. Bal- as such contracts are against public 
 
 timore, &c. R. R. Co. v. Brady, 32 policy, and consequently void. School 
 
 Md. 333; Shriver v. Sioux City, &c. District v. Boston, &c. R. R Co., 102 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 49 
 
 SEC. 36. Assumption of Responsibility by Private Carrier. — 
 As a common carrier can, by express agreement, get rid of 
 
 -Km 
 
 •-j 
 
 j 
 
 J 
 
 Mass. 1 552; Hoadley v. Northern 
 Transportation Co, 115 Mass. 304; 
 Squires v. N. Y. Central R. R. Co., 
 98 Mass. 239 ; Evansville, &c. R. R. 
 Co. v. Young, 28 Ind. 516 ; Penn. R. 
 R. Co. v. Butter, 57 Penn. St. 335 ; 
 Kallman v. TJ. S. Express Co., 3 Kan. 
 205; SeUer v. Pacific R. R. Co., 
 1 Oreg. 409 ; Southern Express Co. 
 v. Moon, 39 Miss. 822 ; Ashmore v. 
 Penn. R. R. Co., 28 N. J. L. 180 ; 
 Earnham v. Camden, &c. R. R. 
 Co., 55 Penn. St. 53; Penn. R. R. 
 Co. v. McCloskey, 23 Penn. St. 536; 
 Indianapolis, &c. R. R. Co. v. Allen, 31 
 Ind. 394; Christenson v. Southern 
 Express Co., 15 Minn. 270 ; Southern 
 Express Co. v. Crook, 44 Ala. 468 ; 
 Cleveland, &c. R. R. Co. v. Curran, 19 
 Ohio St. 1 ; Simon ». The Fung Shuey, 
 21 La. An. 363 ; Louisville, &c.' R. 
 R. Co. v. Brownlee, 14 Bush (Ky.), 
 590 ; Railroad Co. v. Lockwood, 17 
 Wall. (U. S.) 357; Express Co. v. 
 Koutz, 8 Wall. (U. S.) 342. In 
 other words, the r.ule generally adopt- 
 ed, and the one which seems best to 
 accord with principle, good common- 
 sense, and sound public policy, is that 
 common carriers may protect them- 
 selves from liability as insurers, and 
 for loss or injury in the transportation 
 of property, which, in view of the 
 nature of the property and the condi- 
 tion of the climate or country through 
 which it is to be transported, is reason- 
 able. " It is impossible," said Lord 
 Ellenborot/g-h, in Lyon v. Mills, 
 5 East, 438, " without outraging com- 
 mon-sense, to allow carriers to say, 
 ' We will receive your goods, but we 
 will not be bound to take care of them, 
 and will not be answerable at all for 
 any loss occasioned by our own mis- 
 conduct, be it ever so gross and in- 
 
 jurious.' But they cannot, either by 
 special contract or otherwise, absolve 
 themselves from liability for loss re- 
 sulting from their own want of reason- 
 able care. This rule is well illustrated 
 by an English case, — McManus v. 
 Lancashire, &c. Rail. Co., 4 H. & 
 N. 327. In that case a lot of horses 
 were delivered to be forwarded by a 
 cattle truck from Liverpool to York 
 for reward, and the owner was required 
 to sign a ticket containing a memoran- 
 dum to the effect that the ticket was 
 issued subject 'to the owner's under- 
 taking all risk of conveyance, loading 
 and unloading, as the company would 
 not be responsible for any injury or 
 damage, however caused, occurring to 
 live-stock travelling upon the railway 
 or in their vehicles, and the defendants' 
 servants provided a truck which, in 
 external appearance, and so far as the 
 defendants' servants knew, was sound, 
 and sufficient for the conveyance of 
 the horses, but it was in fact unsound, 
 and of insufficient strength for the pur- 
 pose, and a hole was made in the bot- 
 tom of the track during the journey, 
 and one of the horses got his leg 
 through the hole and was injured, it 
 was held that the railway was respon- 
 sible for the damage done to the horse, 
 notwithstanding the terms of the spe- 
 cial contract signed by the owner of 
 the horse. " We are of opinion," ob- 
 serves the court, " that the condition 
 or special contract in this case is not 
 just and reasonable. In order to bring 
 the defendants within its protection, it 
 is necessary to construe it as excluding 
 responsibility for loss occasioned, not 
 only by all risks of whatever kind di- 
 rectly incidental to the transit, but 
 also for that caused by the insufficiency 
 of the carriages provided by the de- 
 
 4 
 
50 
 
 THE LAW OP CARRIERS. 
 
 some of the responsibility which attaches to his trade by law, 
 so a private carrier for hire can, by expressly warranting the 
 
 fendants, though occasioned by their 
 own negligence or misconduct. The 
 sufficiency or insufficiency of the ve- 
 hicles by which the companies are to 
 carry is a matter, generally speaking, 
 which they, and they alone, have the 
 means of fully ascertaining ; and it 
 would be unreasonable and mischievous 
 if they were to be allowed to absolve 
 themselves from the consequence of 
 neglecting to perform properly that 
 which seems naturally to belong to 
 them as a duty. It is unreasonable 
 that the company should stipulate for 
 exemption from liability for the conse- 
 quences of their own negligence, how- 
 ever gross, or misconduct, however 
 flagrant ; and that is what the condi- 
 tion under consideration professes to 
 do. That condition is therefore void, 
 and the ease stands simply upon the 
 ground that the plaintiff has employed 
 the defendants to carry his horses 
 safely, and that they have used an in- 
 sufficient and improper vehicle for that 
 purpose, whereby the horses have been 
 injured." The rule in this case ac- 
 cords with the doctrine generally held 
 in this country. Thus a common car- 
 rier may stipulate against liability for 
 loss resulting from the breakage of 
 goods transported by him ; but he 
 cannot exempt himself from liability 
 for a loss resulting from a breakage 
 occasioned by the negligence of him- 
 self or servants. Ketchum v. Ameri- 
 can Express Co., 52 Mo. 390; Mis- 
 souri Valley R. R. Co. v. Caldwell, 
 8 Kan. 244. So he may reasonably 
 stipulate against liability for loss from 
 fire; hut such a stipulation will not 
 protect him from such a loss where 
 the fire was caused by the negligenoe 
 of himself or servants. Michigan, &c. 
 It. R. Co. v. Heaton, 37 Ind. 448 ; 
 
 York Company v. Central R. R. Co., 
 3 Wall. (U. S.) 107; Bankard v. 
 Baltimore & Ohio R. R. Co., 34 Md. 
 197. And this is also the rule in those 
 States where it is held that a carrier 
 may by contract exempt himself from 
 liability for injuries resulting from the 
 negligence of his servants. Lamb i\ 
 Camden, &c. R. R. Co., 46 N. Y. 271 ; 
 Caldwell v. New Jersey Steamboat 
 Co., 47 N. Y. 282. And the same 
 rule prevails as to carriers by water. 
 They may by special contract exempt 
 themselves from liability from the or- 
 dinary perils of navigation and trans- 
 portation, but not from loss resulting 
 from their negligence in navigating 
 their vessel. Christenson v. American 
 Express Co., 15 Minn. 270. And, 
 generally, it may be said that a car- 
 rier may make any reasonable stipula- 
 tion as to his liability for loss resulting 
 during transportation ; but all such 
 contracts, being in derogation of the 
 common law, are construed strictly, 
 and will not be extended to cover a 
 loss arising from any other or different 
 cause than that specified. Thus it is 
 held that a general exemption from 
 liability for loss, "from, whatsoever 
 cause arising," does not, even in those 
 States where it is held that the carrier 
 may stipulate against loss arising from 
 his negligence, extend to losses re- 
 sulting from the negligence of his ser- 
 vants or agents, but that, in order to 
 have that effect, the stipulation must 
 be express and specific, or it will be 
 treated as only exempting him from 
 his liability as an insurer. Maynard v. 
 Syracuse, &c. R. R. Co., 71 N. Y. 
 180. The words "at the owner's risk " 
 in bills of lading only exempt the car- 
 rier from liability as an insurer, and 
 do not exempt him from losses which 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 51 
 
 safety of the goods, assume the greater responsibility which 
 devolves upon those who carry as a business or trade. Thus, 
 
 might have been prevented by the ex- 
 ercise of ordinary care and diligence. 
 Baltimore, &c. R. R. Co. v. Rathbone, 
 
 1 W. Va. 87. The words " perils of 
 the sea excepted," or " dangers of the 
 river excepted," do not exempt the 
 carrier from any of the perils within 
 the scope of these phrases, if they 
 could have been avoided by the ex- 
 ercise of ordinary care on his part. 
 Williams v. Branson, 1 Murph. (N. C.) 
 417. Tims, if merchandise on board 
 a vessel gets wet by accident, and the 
 carrier makes no exertion to dry it, it 
 has been held that such an exception 
 does not save him from liability for 
 the ensuing damage. Bird v. Crom- 
 well, 1 Mo. 81; Ewart v. Street, 
 
 2 Bailey (S. C), 157. So, where the 
 goods were lost in consequence of the 
 persons who were navigating the boat 
 attempting to pass a dangerous bend 
 in the river during a freshet, it was 
 held that the loss could not be regarded 
 as being within "the perils of the 
 viver." Williams v. Branson, ante; 
 
 . Spencer v. Daggett, 2 Vt. 92. But 
 such exceptions save the carrier from 
 liability from loss by accidents which 
 are unavoidable, as where the boat is 
 lost by reason of hidden obstructions 
 newly placed in the river, such as 
 human foresight could not discover or 
 avoid ; but if the carrier knew of the 
 obstruction before the injury resulted, 
 and failed to exercise a proper degree 
 of vigilance to avoid it, he is charge- 
 able. Gordon v. Buchanan, 5 Yerg. 
 (Tenn.) 71. Where a common carrier 
 stated in his bill of lading that he 
 would not be liable for the breakage of 
 goods in boxes, it was held that he 
 was nevertheless liable for a breakage 
 of the goods through the negligence of 
 his servants. Reno v. Hagan, 12 B. 
 
 Mon. (Ky.) 63. And it has been held 
 that proof of injury to goods by break- 
 age, under sucli a stipulation, is prima 
 facie evidence of negligence, and 
 throws the onus upon the carrier of 
 establishing the fact that the loss did 
 not result from his negligence. Steele 
 v. Townsend, 37 Ala. 247; United 
 States Express Co. v. Backman, 2 
 Ciuc. (Ohio) 251 ; Baltimore, &c. 
 R. R. Co. v. Brady, 32 Md. 383; 
 Lawrence v. New York, &c. R. R. Co., 
 36 Conn. 63. But in Adams Express 
 Co. v. Lamb, 7 Bush (Ky.), 499, a 
 contrary rule was adopted ; and where 
 the carrier stipulated that he should 
 not be liable for a loss unless it arose 
 from the fraud or gross negligence of 
 the company, it was held that the 
 plaintiff could not recover unless lie 
 proved that the loss arose from such 
 fraud or gross negligence. 
 
 In some of the States, especially in 
 New York, it is held that a carrier 
 may, by special contract, exempt him- 
 self from liability for a loss arising 
 even from his gross or wilful negli- 
 gence. Maynard v. Syracuse, &c. R. 
 R. Co., 71 N. Y. 180. And such 
 ground was also taken in a West Vir- 
 giniacase. Baltimore, &c. R. R. Co. v. 
 Rathbone, 1 W. Va. 87. But in both 
 of these States such contracts are con- 
 strued with the utmost strictness, and 
 are not extended by inference to cover 
 losses arising from the carrier's neg- 
 ligence, unless so expressly and in 
 terms provided. Happily, too, as has 
 already been stated, the great majority 
 of our courts repudiate this doctrine, 
 and entertain the idea that "sound 
 public policy " should have some influ- 
 ence in the determination of questions 
 of such vital importance to the vast 
 commercial interests of the country, 
 
52 
 
 THE LAW OP CARRIERS. 
 
 where the plaintiff employed the defendant to carry goods, 
 and the defendant said to the plaintiff at starting, " I will war- 
 
 and that common carriers, especially 
 such as railroad companies, steamboat 
 companies, &c, which derive all their 
 power and vitality from the State, 
 should not be permitted to place them- 
 selves in such a position that they can 
 with safety divest themselves of all 
 care in reference to the property trans- 
 ported, especially as to such property 
 which, as common carriers, fhey are 
 bound to transport. In England, by 
 statute it is provided that a carrier 
 cannot limit his liability by public 
 notice or otherwise, except by con- 
 tract ; and in this country it is held 
 that he cannot restrict his liability by 
 public notice. Kimball v. Rutland & 
 Burlington B. E. Co., 26 Vt. 247; 
 Derwort v. Loomer, 21 Conn. 245. 
 And it is now generally held, both in 
 this country and in England, that the 
 court is bound to look at the particu- 
 lar matter in each case, to see whether 
 the condition is reasonable or not; 
 and it has been held that a condition 
 which seeks to relieve a railway com- 
 pany from the consequences of the loss 
 or non-delivery of goods, by reason of 
 insufficient or improper package, is not 
 reasonable. Simons v. Gt. West. Rail. 
 Co., 18 C. B. 830 ; 26 Law J.C. P. 25 ; 
 Lord Wensleydale, Peek v. North 
 Staffordshire Bail. Co., 10 H. L. C. 
 473. And if the condition is framed 
 without limitation or exception, so as 
 to exempt the company from all re- 
 sponsibility for injury, however caused, 
 it will be void, as being neither just nor 
 reasonable. Peek v. North Stafford- 
 shire Bail. Co., ante ; Gregory v. West. 
 Mid. Kail. Co , 33 L. J. Exch. 155. 
 But a condition qualifying their lia- 
 bility only — for instance, one annexed 
 to the carriage of meat that the com- 
 pany will not be responsible for the 
 
 loss of a market — is a reasonable one. 
 Lord v. Midland Rail. Co., L. R. 2 
 C. P. 339. 
 
 In some of the States it is held that 
 a common carrier, by a mere notice, 
 cannot limit his liability as a common 
 carrier, even though the notice is 
 brought home to the knowledge of the 
 shipper. Steele v. Townsend, 37 Ala. 
 247; Derwort v. Loomer, 21 Conn. 
 245 ; Hollister v. Nowlen, 19 Wend. 
 (N. Y.) 234; Jones v. "Voorhees, 10 
 Ohio, 145 ; Michigan Cent. R. R. Co. 
 v? Hale, 6 Mich. 243 ; Southern Ex- 
 press Co. v. Newby, 36 Ga. 635. 
 
 In Railroad Co. v. Mfg. Co., 16 
 Wall. (U. S.) 318, this question was 
 raised under the following circum- 
 stances : The plaintiff's agent deliv- 
 ered to the defendant a quantity of 
 wool at Jackson, Mich., to be trans- 
 ported to the Mineral Springs Mfg. 
 Co., at Stafford, Conn., and took a 
 receipt for it as follows : — 
 
 Michigan Central R. R. Co., 
 Jackson, Oct. 11, 1865. 
 Received from Wm. Bostwick, as 
 consignor, the articles marked, num- 
 bered, and weighing as follows : — 
 (Here described.) 
 To be transported over said railroad 
 to the depot in Detroit, and there to 
 
 be delivered to , agent, or order, 
 
 upon the payment of the charges 
 thereon and subject to the rules and 
 regulations established^ the company, 
 a part of which notice is given on 
 the back hereof. — This receipt is not 
 transferable. 
 
 Hastings, Freight Agent. 
 
 The notice on the back was as fol- 
 lows : — 
 
 " The company will not be responsi- 
 ble for damage occasioned by delays 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 53 
 
 rant the goods shall go safe," it was held that, although the 
 defendant was "not a common carrier by trade, he had put 
 
 from storms, accidents, or other causes 
 . . . and all goods will be at the risk 
 of the owners thereof, while in the 
 company's warehouse, except such loss 
 or injury as may arise from the negli- 
 gence of the agents of the company." 
 
 Bostwick gave verbal instructions 
 that the wool be sent from Detroit to 
 Buffalo, by lake, in steamboats, which 
 instructions were embodied in the bill 
 of lading accompanying the wool. 
 The wool reached Detroit and lay 
 there six days, at the end of which 
 time it was destroyed by an accidental 
 fire, without fault on the part of the 
 company. It was held by the court 
 that while a company may limit its 
 liability as a carrier by special contract, 
 it cannot do so by a notice printed on 
 the back of a receipt, though the re- 
 ceipt with such notice printed thereon 
 may be accepted by the consignor with- 
 out dissent. Kimball v. Rutland & 
 Burlington R. R. Co., 26 Vt. 247. See 
 also Moses v. Boston & Maine R. R. 
 Co!, 32 N. H. 323 ; Powell v. Myers, 26 
 Wend. (N. Y.) 591 ; Dwight o. Brew- 
 ster, 1 Pick. (Mass.) 53 ; Cole v. Good- 
 win, 19 Pick. (Mass.) 251. But he may 
 by such notice reasonably modify his 
 liability. Sager v. Portsmouth, &c. R. 
 R. Co., 31 Me. 228 ; Smith v. North 
 Carolina R. R. Co., 64 N. C. 235. 
 And by special contract he may restrict 
 his liability. Michigan Central R. R. 
 Co. v. Wood, 2 Mich. 538 ; Kimball 
 v. R. & B. R. R. Co., 26 Vt. 247 ; 
 Wallace v. Matthews, 30 Ga. 617 ; 111. 
 Cent. R. R. Co. v. Prankenberg, 54 
 111. 88 ; Thayer v. Alton, &c. R. R. 
 Co., 22 Ind. 26 ; Hannibal R. R. Co. 
 v. Swift, 12 Wall. (U. S.) 262. Thus 
 a railroad company may restrict its 
 liability to its own line, even though 
 the goods are to ' be delivered to 
 
 another line for shipment beyond. 
 Chicago, &o. R. R. Co. v. Mont- 
 fort, 60 111. 175 ; Detroit, &c. R. R. 
 Co. v. Farmers', &c. Bank, 20 Wis. 
 122. And connecting lines are en- 
 titled to the benefit of the special 
 provisions of the contract of shipment 
 made with the first line. Babcock v. 
 Lake Shore, &c. R. R. Co., 43 How. 
 Pr. (N. Y.) 317; Maghee v. Camden 
 & Amboy R. R. Co., 45 N Y. 514 ; 
 Lamb v. Camden, &c. R. R. Co., 2 
 Daly (N. Y. C. P.), 454 ; Manhattan 
 Oil Co. v. Camden R. R. Co., 54 N. Y. 
 197. But any such limitation is re- 
 stricted to their liability as insurers, 
 aud does not excuse them from lia- 
 bility for loss or injury resulting from 
 their actual negligence. Penn. R. R. 
 Co. v. Butler, 57 Penn. St. 335 ; Sted- 
 man v. Western Trans. Co., 48 Barb. 
 (N. Y.) 97 ; Evansvffle R. R. Co. 
 v. Young, 28 Ind. 516; Parnham v. 
 Camden, &c. R. R. Co., 55 Penn. St. 
 53 ; Ashmore v. Penn., &c. R. R. Co., 
 28 N. J. 180 ; Southern Express Co. 
 v. Moon, 39 Miss. 822 ; Seller v. Pa- 
 cific, 1 Oregon, 409 ; Mercantile Ins. 
 Co. v. Chase, 1 E. D. S. (N. Y.) 115 ; 
 Am. Trans. Co. v. Moore, 5 Mich. 
 368 ; Boorman v. Am. Ex. Co., 21 
 Wis. 152 ; Darr v. N. J. Steam Nav. 
 Co., 4 Sand. (N. Y.) 174; York Co. 
 v. Cent. R. R. Co., 3 Wall. (U. S.) 
 107 ; Harmony v. Bingham, 12 N. Y. 
 99; Parsons v. Monteath, 13 Barb. 
 (N. Y.) 353. All such contracts are 
 regarded as against public policy. 
 Berry v. Cooper, 28 Ga. 543 ; Cincin- 
 nati, &c. R. R. Co. v. Pontius, 19 
 Ohio St. 221 ; Indianapolis, &c. R. R. 
 Co. v. Allen, 31 Ind. 394 ; Michigan, 
 &c. R. R. Co. v. Heaton, 37 Ind. 448 ; 
 Earnham v. Camden, &c. R. R. Co., 
 55 Penn. St. 53; Lamb v. Same, 2 
 
54 
 
 THE LAW OF CARRIERS. 
 
 himself into the situation of a common carrier by his particular 
 warranty." 1 
 
 Daly (N. Y.), 454; York Manufactur- 
 iug Co. v. Illinois Central E. B. Co., 
 1 Biss. (U. S.) 377; Union Mut. Ins. 
 Co. v. Indianapolis, &c. B. B. Co., 1 
 Disney (Ohio), 480 ; Adams & Co. v. 
 Beagan, 29 Ind. 21 ; School Dist, in 
 Medford v. Boston, &c. B. B. Co., 
 102 Mass. 552 ; York Co. v. 111. Cent. 
 B. B. Co., 3 Wall. (U. S.) 107; 
 Kansas Pacific B. B. Co. v. Beynolds, 
 8 Kan. 623 ; Beno v. Hagan, 12 B. 
 Mon. (Ky.) 63. But contra, see 
 Baltimore, &c. B. B. Co. v. v Bathbone, 
 1 W. Va. 87. And the taking of a 
 receipt limiting the carrier's liability, 
 brought to the attention of the con- 
 signor, has been held binding as a part 
 of the contract in the following cases : 
 111. Cent. E. B. Co. v. Frankenberg, 
 54 111. 88. But the assent must be 
 fairly established by showing full no- 
 tice of the provisions of the receipt. 
 Levering v. Union Transportation Co., 
 42 Mo. 8S ; French v. Buffalo, &c. B. 
 B. Co., 2 Abb. (N. Y.) App. Dec. 
 176 ; Peck v. Weeks, 34 Coun. 145 ; 
 Adams Express Co. v. Noak, 2 Duv. 
 (Ky.) 562; Fillebrown v. Grand 
 Trunk B. B. Co., 55 Me. 462. This 
 question is ably discussed by Bus- 
 kirk, J., in an Indiana case (Ohio, 
 &c. B. B. Co. v. Selby, 47 Ind. 471), 
 and the doctrine generally prevailing 
 in this country ably stated. In that 
 case the plaintiff sought to recover for 
 personal injuries sustained by him 
 while riding upon the defendants' 
 road npon what is called a drover's or 
 stock pass, npon which was an in- 
 dorsement as follows : " In considera- 
 tion of receiving this ticket I volun- 
 tarily assume all risk of accidents, 
 
 and expressly agree that the company 
 shall not be liable under any circum- 
 stances, whether by negligence of 
 their agents or otherwise, for any 
 injury to my person, or for any loss 
 or injury to my property ; and I agree 
 that as for me, in the use of this ticket, 
 I will not consider the company as 
 common carriers, or liable to me as 
 such. (Signed) George A. Selby." 
 While riding upon this pass the plain- 
 tiff was injured by reason of the negli- 
 gence of the defendants' servants ; and 
 in an action therefor the court held 
 that he was not precluded from a re- 
 covery for such injuries, because of 
 the stipulations in the contract. 
 
 "The question presented by the 
 second paragraph of the answer is, 
 whether the contract hereinbefore set 
 out was sufficient to relieve the appel- 
 lant from liability for the injury com- 
 plained of. The appellant insists that 
 by the terms of such contract she is 
 exempted from responsibility for all 
 accidents, including those occurring 
 from negligence, at least the ordinary 
 negligence of its servants. Is such a 
 contract valid ? This involves an in- 
 quiry into the law affecting the right 
 of a railway company to exempt itself 
 by special contract from the liability 
 which ordinarily attaches to it as a 
 common carrier of persons and prop- 
 erty. There seems to be an irrecon- 
 cilable conflict in the adjudged cases 
 in England and in this country. We 
 propose, therefore, to make a brief re- 
 view of the leading cases, and classify 
 them, so that it may be seen which 
 sustain and which oppose the validity 
 of the contract relied upon by appel- 
 
 1 Bobinson v. Dunmore, 2 Bos. & P. 
 States, Dev. C. C. 26. 
 
 416. See also Gibbons v. United 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 55 
 
 SEC. 37. Effect of continued Custody of Goods by Owner. — 
 A question arose in this case as to the effect which the pres- 
 
 lant. And we will, in the first place, 
 examine the adjudged cases in this 
 court. Iu Wright v. Gaff, 6 Ind. 416, 
 it was held that a steamboat might, by 
 special -contract, be exempted from 
 liability for injury resulting from ordi- 
 nary negligence, but not for gross 
 negligence. The ruling in the last 
 case cited was referred to with ap- 
 proval in the case of The Indianapolis, 
 &c. R. It. Co. v. Remmy, 13 Ind. 518. 
 
 " In the case of The Indiana Cen- 
 tral R. R. Co. v. Mundy, 21 Ind. 48, 
 Mundy was riding on a free pass, with 
 conditions on the back, assuming all 
 risks of personal injury, similar to the 
 pass in the case at bar. The court in 
 that case decided that Mundy did not 
 assume any risks arising from acts of 
 gross negligence, but approved the 
 charge of the court below, ' that the 
 railway company would not be liable 
 except for wilfully gross negligence,' 
 &c. ; and in a note to that case, au- 
 thorities are cited to sustain that rul- 
 ing. The ruling in the above case 
 was adhered to in the case of Thayer 
 v. The St. Louis, &c. R. R. Co., 22 
 Ind. 26. The case of The Michigan 
 Southern & Northern Indiana R. R. 
 Co. v. Heaton, was decided by the 
 late judges of this court at the May 
 term, 1869. A rehearing was granted, 
 not, however, upon the point under 
 examination. In the case of The I., 
 P., & C. R. R. Co. v. Allen, 31 Ind. 
 394, decided at the same term as the 
 above ease, the following reference is 
 made to the ruling in such case : — 
 
 " ' It is true that the language of the 
 contract is broad enough to cover loss 
 from any cause whatever ; but in The 
 Michigan Southern & Northern In- 
 diana R R. Co. v. Heaton, at this 
 term, after a careful examination of 
 
 the subject, this court came to the 
 conclusion that a contract as broad in 
 its terms as the one under considera- 
 tion did not cover liability for loss 
 occasioned by ordinary negligence. 
 Indeed, it is held in that case that 
 a common carrier cannot contract 
 against liability for loss from his own 
 ordinary negligence ; that such a con- 
 dition is void as against public policy.' 
 The opinion of the court in that case 
 is published in a note commencing on 
 page 397. Such case, having been re- 
 submitted and re-argued, came before 
 the court as at present constituted, 
 aud will be found reported in 37 Ind. 
 448; s. c. 10 Am. Rep. 89. Upon 
 the last hearing it was held that 'a 
 common carrier cannot by contract 
 relieve himself from liability for the 
 loss of goods delivered to him for 
 transportation, which has been occa- 
 sioned by his own negligence, or that 
 of his agents or servants, or where 
 such negligence has in any degree con- 
 tributed to such loss. A common 
 carrier can no more stipulate for a 
 slight degree of negligence than he 
 can for gross negligence.' In the sub- 
 sequent case of The Adams Express 
 Co. v. Tendrick, 38 Ind. 150, the 
 opinion of the court was delivered by 
 the same judge who wrote the opinion 
 in the case last cited. He says : ' The 
 only question we need to consider is 
 that presented by the ruling on the 
 demurrer to the first paragraph of the 
 answer. It will be seen that the loss 
 is alleged to have occurred from one 
 of the dangers of " river navigation," 
 for which it was stipulated that the 
 company should not be liable. Doubt- 
 less at common law, and independently 
 of any contract to the contrary, the 
 defendant, as a common carrier, would 
 
56 
 
 THE LAW OF CARRIERS. 
 
 ence of the plaintiff's servant, during the transit of the goods, 
 would have upon the implied contract of the carrier. It is an 
 
 have been liable for the loss ; a com- 
 mon carrier being regarded as an in- 
 surer against all casualties in the 
 transportation of goods, except those 
 arising from the act of God or the 
 public enemy. But the great current 
 of authorities has established the 
 proposition that a common carrier 
 may, by contract, limit the extreme 
 liability which the law thus throws 
 upon him. In the case of The Michi- 
 gan, &c. K. R. Co. v. Heaton, 37 Ind. 
 448 ; s. c. 10 Am. Rep. 89, this court 
 held that a common carrier might, by 
 contract, exclude himself from liability 
 for a loss not arising from or being 
 contributed to by any degree of negli- 
 gence on the part of the carrier, his 
 servants or agents. 5 In many of the 
 cases a distinction has been drawn 
 between the degrees of negligence. 
 In some it was held that a common 
 carrier might contract against slight 
 negligence, in others against ordinary 
 negligence, and in a few against gross 
 negligence. But the very decided 
 tendency of modern decisions is to 
 disregard this distinction. 
 
 " The Supreme Court of the United 
 States, in the case of Railroad Com- 
 pany v. Lockwood, 17 Wall. (U. S.) 
 357; s. c. 10 Am. Rep. 366, uses the 
 following language in reference to the 
 degrees of negligence : ' The defend- 
 ants endeavor to make a distinction 
 between gross and ordinary negli- 
 gence, and insist that the judge ought 
 to have charged that the contract was 
 at least effective for excusing the lat- 
 ter. We have already adverted to the 
 tendency of judicial opinion adverse 
 to the distinction between gross and 
 ordinary negligence. Strictly speak- 
 ing, these expressions are indicative 
 rather of the degree of care and dili- 
 
 gence which is due from a party and 
 which he fails to perform, than of the 
 amount of inattention, carelessness, or 
 stupidity which he exhibits. If very 
 little care is due from him, and he fails 
 to bestow that little, it is called gross 
 negligence. If very great care is due, 
 and he fails to come up to the mark 
 required, it is called slight negligence. 
 And if ordinary care is due, such as 
 a prudent man would exercise in his 
 own affairs, failure to bestow that 
 amount of care is called ordinary neg- 
 ligence. In each case the negligence, 
 whatever epithet we give it, is failure 
 to bestow the care and skill which the 
 situation demands ; and hence it is 
 more strictly accurate perhaps to call 
 it simply "negligence." And this 
 seems to be the tendency of modern 
 authorities. 1 Smith's Lead. Cas. 
 453, 6th Am. ed. ; Story on Bailm. 
 § 571 ; Wyld v. Pickford, 8 M. & W. 
 443 ; Hiuton v. Dibbin, 2 Q. B. 661 ; 
 Wilson v. Brett, 11 M. & W. 113 ; 
 Beal v. South Devon Railway Co., 3 
 H. & C. 337 ; L. R. 1 C. P. 600 ; 
 Philadelphia, &c. R. R. Co. v. Derby, 
 14 How. (TJ. S.) 486 ; The Steamboat 
 New World, 16 How. (U. S.) 474. If 
 they mean more than this, and seek 
 to abolish the distinction of degrees of 
 care, skill, and diligence required in 
 the performance of various duties and 
 the fulfilment of various contracts, we 
 think they go too far, since the re- 
 quirement of different degrees of care 
 in different situations is too firmly set- 
 tled and fixed in the law to be ignored 
 or changed.' 
 
 "We do not mean to say that in no 
 case does the distinction in the de- 
 grees of negligence exist. Such a dis- 
 tinction may exist in cases involving a 
 question of contributory negligence. 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. bi 
 
 evident principle, that if the bailor does anything, while the 
 goods are in the hands of the bailee, to conduce to their loss or 
 
 We are now considering the degree of 
 negligence that may be contracted 
 against, and beyond that we decide 
 nothing. We shall not attempt a re- 
 view of the cases sustaining, or in 
 conflict with, the recent decisions of 
 this court, but will cite such cases. 
 
 "The following oases hold that a 
 common carrier may be exempted from 
 liability for a loss occasioned by ordi- 
 nary negligence : Welles v. The New 
 York Central R. R. Co., 24 N. Y. 
 181 ; Perkins v. The New York Cen- 
 tral R. R. Co., 24 N. Y. 196 ; Smith 
 v. The New York Central R. R. 
 Co., 24 N. Y. 222; Bissell v. New 
 York Central R. B. Co.,, 25 N. Y. 
 442 ; Poucher v. New York Central 
 R. R. Co., 49 N. Y. 263; s. c. 10 
 Am. Rep. 364 ; Ashmore o. Pennsyl- 
 vania, &c. Co., 28 N. J. L. 180 ; Kin- 
 ney v. Central R. R. Co., 32 N. J. L. 
 407 ; Hale v. New Jersey, &c. Co., 15 
 Conn. 539 ; Peck v. Weeks, 34 Conn. 
 145 ; Lawrence w. The New York, &c. 
 R. R. Co., 36 Conn. 63; Kimball 
 v. Rutland, &c. R. R. Co., 26 Vt. 
 247; Mann v. Birchard, 40 Conn. 
 326; Adams Express Co. v. Haynes, 
 42 111. 89, 458 ; The Illinois Central 
 R. R. Co. v. Adams, 42 111. 474; 
 Hawkins ». Great Western R. R. 
 Co., 17 Mich. 57; s. o. 18 Mich. 
 427; Baltimore & Ohio R. R. Co. 
 v. Brady, 32 Md. 328 ; Levering v. 
 Union, &c. Co., 42 Mo. 88. Many of 
 the above cases were decided by di- 
 vided courts. Some of them limit the 
 exemption to cases of slight negligence, 
 some of them , to ordinary negligence, 
 and a few of them extend the doctrine 
 to cases of gross negligence. 
 
 " We now proceed, to cite cases hold- 
 ing the opposite doctrine and fully sus- 
 taining the recent decisions in this 
 
 court. Cole v. Goodwin, 19 Wend. 
 251 ; Gould v. Hill, 2 Hill (N. Y.), 
 623; Dorr v. The New Jersey Steam 
 Nav. Co., 4 Sandf. (N. Y.) 136 ; Stod- 
 dard v. The Long Island R. R. Co., 
 5 Sandf. (N. Y.) 180 ; Parsons v. 
 Monteath, 13 Barb. (N. Y.) 353; 
 Moore w.Evans, 14 Barb. (N. Y.) 524; 
 Laing v. Colder, 8 Penn. St. 479; 
 Camden & Amboy R. R. Co. v. Bal- 
 dauf, 16 Penn. St. 67 ; Goldey v. Penn- 
 sylvania R. R. Co., 30 Penn. St. 242 ; 
 Powell v. The Pennsylvania R. R. 
 Co., 32 Penn. St. 414 ; The Pennsyl- 
 vania R R. Co. v. Henderson, 51 
 Penn. St. 315 ; Farnham v. The Cam- 
 den, &o. R. R. Co., 55 Penn. St. 
 53 ; American Express Co. v. Sands, 
 55 Penn. St. 140 ; The Empire Trans- 
 portation Co. v. Wamsutta Oil Co., 63 
 Penn. St. 14; Jones v. Voorhees, 10 
 Ohio, 145 ; Davidson v. Graham, 2 
 Ohio St. 131 ; Graham v. Davis, 4 
 Ohio St. 362; Wilson v. Hamilton, 
 4 Ohio St. 722 ; Welsh v. The Pitts- 
 burgh, &c. R. R. Co., 10 Ohio St. 
 65 ; The Cleveland, &c. R. R. Co. 
 v. Curran, 19 Ohio St. 1 ; The Cin- 
 cinnati, &c. R. R. Co. v. Pontius, 19 
 Ohio St. 221; Knowlton v. The Erie 
 Railway Co., 19 Ohio St. 260 ; Kile- 
 brown v. The Grand Trunk Railway 
 Co., 55 Me. 462; Sager v. Portsmouth 
 &c. R. R, Co., 31 Me. 228, 238; 
 School Dist., &c. v. Boston, &c. R. R. 
 Co., 102 Mass. 552; Flinn v. The 
 Philadelphia, Wilmington, & Balti- 
 more R. R. Co., 1 Houst. (Del.) 469 ; 
 Orndorff v. Adams Express Co., 3 
 Bush (Ky.), 194; Swindler v. Hilliard, 
 2 Rich. (S. C.) 286 ; Berry v. Cooper, 
 28 Ga. 543 ; Steele v. Townsend, 37 
 Ala. 247; Southern Express Co. v. 
 Crook, 44 Ala. 468 ; Whitesides v. 
 Thurlkill, 12 8m. & M. (Miss.) 599 ; 
 
58 
 
 THE LAW OP CARRIERS. 
 
 damage, the bailee shall not be held liable for the injury which 
 results directly from the bailor's conduct. Such a bailment is 
 
 The Southern Express Co. v. Moon, 
 39 Miss. 822; The New Orleans Mu- 
 tual Insurance Co. v. The New Orleans, 
 &c. R. R. Co., 20 La. An. 302. 
 
 " The ruling of the Supreme Court 
 of the United States has been uniformly 
 against the validity of all contracts to 
 exempt a common carrier from liability 
 for loss resulting from any negligence. 
 The following are leading cases : The 
 New Jersey St. Nav. Co. v. The Mer- 
 chants' Bank, 6 How. (U. S.) 383; 
 The Philadelphia, &c. R. R. Co. v. 
 Derby, 14 How. (U. S.) 486 ; The 
 Steamboat New World v. King, 16 
 How. (U. S.) 469; The York Com- 
 pany v. Central R. R., 3 Wall. 
 (U. S.) 107 ; Walker v. The Trans- 
 portation Co., 3 Wall. (U. S.) 150 ; 
 Express Co. v. Kountze Brothers, 8 
 Wall. (U. S.) 342 ; New York Cen- 
 tral R. R. Co. v. Lockwood, 17 Wall. 
 (U. S.) 357 ; s. c. 10 Am. Rep. 366. 
 The earlier English cases, such as 
 Hinton v. Dibbin, 2 Q. B. 646, and 
 Wyld v. Pickford, 8 M. & W. 443, 
 were in entire accord with the deci- 
 sions of the Supreme Court of the 
 
 'United States. But the later deci- 
 sions, made between 1832 and 1854, 
 held the opposite doctrine. See Carr 
 i'. The Lancashire Railway Co., 7 Exch. 
 707. This change of ruling is fully 
 shown in the opinion of Mr. Jctstice 
 Blackburn, in Peek v. North Staf- 
 fordshire Railway Co., 10 H. L. C. 
 473. 
 
 " Parliament, in ] 854, passed an act 
 called ' The Railway and Canal Traffic 
 Act,' declaring that railway and canal 
 companies should be liable for negli- 
 
 - gence of themselves or their servants, 
 notwithstanding any notice or condi- 
 tion, unless the court or judge trying 
 the cause should adjudge the conditions 
 
 just and reasonable. 1 Eisher's C. L. 
 Dig. 1466. The condition written upon 
 the back of the ticket given the appel- 
 lee was in the following words : ' In 
 consideration of receiving this ticket, 
 I voluntarily assume all risk of acci- 
 dents, and expressly agree that the 
 company shall not be liable uuder any 
 circumstances, whether by negligence 
 of their agents or otherwise, for any 
 injury to my person, or for any loss or 
 injury to my property; and I agree 
 that as for me, in the use of this ticket, 
 I will not consider the company as 
 common carriers, or liable to be as 
 such.' 
 
 " The facts and principle involved in 
 the case of Railroad Company v. Lock- 
 wood, supra, are very similar to those 
 involved in the present case. The 
 ruling there is an authority directly in 
 point here. The facts of that case are 
 thus stated : — 
 
 " ' The plaintiff in this case was a 
 drover, injured whilst travelling ou a 
 stock train of the defendant, proceed- 
 ing from Buffalo to Albany, and the 
 suit was brought to recover damages 
 for the injury. He had cattle in the 
 train, and had been required, at Buffalo, 
 to sign an agreement to attend to the 
 loading, transporting, and unloading 
 of his cattle, and to take all risk of in- 
 jury to them and of personal injury to 
 himself, or to whomsoever went with 
 the cattle ; and he received what is 
 called a drover's pass, certifying that 
 he had shipped sufficient stock to pass 
 free to Albany, but declaring that the 
 acceptance of the pass was to be con- 
 sidered a waiver of all claims for dam- 
 ages or injuries received on the train. 
 The agreement stated its consideration 
 to be the carrying of the plaintiff's cat- 
 tle at less than tariff rates. It was 
 
CAEKIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 59 
 
 intermittent. If a man has trusted his goods to another for a 
 year, and during that time repeatedly has the goods in his own 
 
 shown on the trial that these rates were 
 about three times the ordinary rates 
 charged, and that no drover had cattle 
 carried on those terms; but that all 
 signed similar agreements to that which 
 was signed by the plaintiff, and re- 
 ceived similar passes. Evidence was 
 given on the trial tending to show that 
 the injury complained of was sustained 
 in consequence of negligence on the 
 part of the defendants or their ser- 
 vants ; but they insisted that they were 
 exempted by the terms of the contract 
 from responsibility for all accidents, in- 
 cluding those occurring from negligence, 
 at least the ordinary negligence of 
 their servants, and requested the judge 
 so to charge. This he refused, and 
 charged that if the jury were satisfied 
 that the injury occurred without any 
 negligence on the part of the plaintiff, 
 and that the negligence of the defend- 
 ants caused the injury, they must find 
 for the plaintiff, which they did.' The 
 court, after a very able review of the 
 American and English authorities, uses 
 the following language : ' It is argued 
 that a common carrier, by entering 
 into a special contract with a party for 
 carrying his goods or person on modi- 
 fied terms, drops his character and 
 becomes an ordinary bailee for hire, 
 and, therefore, may make any coutract 
 he pleases. That is, he may make any 
 contract whatever, because he is an 
 ordinary bailee ; and he is an ordinary 
 bailee because he has made the con- 
 tract. 
 
 " 'We are unable to see the sound- 
 ness of this reasoning. It seems to us 
 more accurate to say that common 
 carriers are such by virtue of their oc- 
 cupation, not by virtue of the respon- 
 sibilities under which they rest. Those 
 responsibilities may vary in different 
 
 countries, and at different times, with- 
 out changing the character of the em- 
 ployment. The common law subjects 
 the common carrier to insurance of the 
 goods carried, except as against the act 
 of God or public enemies. The civil 
 law excepts, also, losses by means of 
 any superior force, and any inevitable 
 accident. Yet the employment is the 
 same in both cases. And if by spe- 
 cial agreement the carrier is exempted 
 from still other responsibilities, it does 
 not follow that his employment is 
 changed, but only that his responsi- 
 bilities are changed. The theory oc- 
 casionally announced, that a special 
 contract as to the terms and responsi- 
 bilities of carriage changes the nature 
 of the employment, is calculated to 
 mislead. The responsibilities of a 
 common carrier may be reduced to 
 those of an ordinary bailee for hire, 
 whilst the nature of his business ren- 
 ders him a common carrier still. Is 
 there any good sense in holding that a 
 railroad company, whose only business 
 is to carry passengers and goods, and 
 which was created and established for 
 that purpose alone, is changed to a 
 private carrier for hire by a mere con- 
 tract with a customer, whereby the 
 latter assumes the risks of inevitable 
 accidents in the carriage of his goods ? 
 Suppose the contract relates to a single 
 crate of glass or crockery, whilst at 
 the same time the carrier receives from 
 the same person twenty other parcels, 
 respecting which no such contract is 
 made, is the company a public carrier 
 as to the twenty parcels and a private 
 carrier as to the one ? ' 
 
 "Again the court say : 'If the cus- 
 tomer had any real freedom of choice, 
 if he had a reasonable and practicable 
 alternative, and if the employment of 
 
60 
 
 THE LAW OF CARRIERS. 
 
 possession, the liability of the bailee is not constant, and he 
 can properly be held liable for the loss or injury only when 
 
 the carrier were not a public onej 
 charging him with the duty of ac- 
 commodating the public in the line of 
 his employment, then, if the customer 
 chose to assume the risk of negligence, 
 it could with more reason be said to be 
 his private affair, and no concern of the 
 public. But the condition of things is 
 entirely different, and especially so un- 
 der the modified arrangements which 
 the carrying trade has assumed. The 
 business is mostly concentrated in a 
 few powerful corporations, whose posi- 
 tion in the body politic enables them to 
 control it. They do, in, fact, control 
 it, and impose such conditions upon 
 travel and transportation as they see 
 fit, which the public is compelled to 
 accept. These circumstances furnish 
 an additional argument, if any were 
 needed, to show that the conditions 
 imposed by common carriers ought 
 not to be adverse (to say the least) 
 to the dictates of public policy and 
 morality. The status and relative po- 
 sition of the parties render any such 
 conditions void. Contracts of common 
 carriers, like those of persons occupy- 
 ing a fiduciary character, giving them 
 a position in which they can take un- 
 due advantage of the persons with 
 whom they contract, must rest upon 
 their fairness and reasonableness. It 
 was for the reason that the limitations 
 of liability first introduced by common 
 carriers into their notices and bills of 
 lading were just and reasonable, that 
 the courts sustained them. It was j ust 
 and reasonable that they should not 
 be responsible for losses happening by 
 sheer accident, or dangers of naviga- 
 tion that no human skill or vigilance 
 could guard against; it was just and 
 reasonable that they should not be 
 chargeable for money or other valuable 
 
 articles liable to be stolen or damaged, 
 unless apprised of their character or 
 value ; it was just and reasonable that 
 they should not be responsible for ar- 
 ticles liable to rapid decay, or for live 
 animals liable to get unruly from fright, 
 and to injure themselves in that state, 
 when such articles or live animals be- 
 came injured without their fault or 
 negligence. And when any of these 
 just and reasonable excuses were in- 
 corporated into notices or special con- 
 tracts assented to by their customers, 
 the law might well give effect to them 
 without the violation of any important 
 principle, although modifying the strict 
 rules of responsibility imposed by the 
 common law. The improved state of 
 society and the better administration 
 of the laws had diminished the oppor- 
 tunities of collusion and bad faith on 
 the part of the carrier, and rendered 
 less imperative the application of the 
 iron rule, that he must be responsible 
 at all events. Hence, the exemptions 
 referred to were deemed reasonable and 
 proper to be allowed. But the propo- 
 sition to allow a public carrier to aban- 
 don altogether his obligations to the 
 public, and to stipulate for exemptions 
 that are unreasonable and improper, 
 amounting to an abdication of the es- 
 sential duties of his employment, would 
 never have been entertained by the 
 sages of the law. 
 
 " ' Conceding, therefore, that spe- 
 cial contracts made by common carriers 
 with their customers, limiting their 
 liability, are good and valid so far as 
 they are just and reasonable; to the 
 extent, for example, of excusing them 
 for all losses happening by accident, 
 without any negligence or fraud on 
 their part ; when they ask to go still 
 further, and to be excused for negli- 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 61 
 
 the goods are in his possession. There can be no carelessness 
 in trusting an owner with his own goods. And it is only care- 
 lessness or want of thought which renders a bailee liable for 
 negligence, and not the fact of the loss of the article intrusted 
 to him, or the injury that is done to it. Thus, in a case where 
 the defendant was a private carrier for hire, or a town carman, 
 the plaintiff gave him certain goods to be taken care of, and 
 safely carried from one wharf to another, it was proved that 
 the plaintiff had 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 
 
 gence, — an excuse so repugnant to 
 the law of their foundation and to the 
 public good, — they have no longer any 
 plea of justice or reason to support 
 such a stipulation, but the contrary. 
 And then, the inequality of the parties, 
 the compulsion under -which the cus- 
 tomer is placed, and the obligations of 
 the carrier to the public, operate with 
 full force to divest the transaction of 
 validity.' 
 
 "In the above case, the court 
 reached and stated the following 
 conclusions of law : — 
 
 " ' 1. That a common carrier cannot 
 lawfully stipulate for exemption from 
 responsibility when such exemption is 
 not just and reasonable in the eye of 
 the law. 
 
 " ' 2. That it is not just and reason- 
 able in the eye of the law for a com- 
 mon carrier to stipulate for exemption 
 from responsibility for the negligence 
 of himself or his servants. 
 
 '"3. That these rules apply both to 
 carriers of goods and carriers of pas- 
 sengers for hire, and with special force 
 to the latter. 
 
 " ' 4. That a drover travelling on a 
 pass, such as was given in this case, 
 
 for the purpose of taking care of his 
 stock on the train, is a passenger for 
 hire.' 
 
 " The recent case of Louisville, &c. 
 R. R. Co. v. Hedger, 15 Am. Rep. 
 740, is in accord with the foregoing 
 cases. 
 
 " We are of opinion that the facts 
 stated in the second paragraph of the 
 answer did not constitute a defence, 
 and that the ruling of the court thereon 
 was correct. 
 
 "The third paragraph of the answer 
 proceeds upon the theory that the ap- 
 pellee was travelling on a free pass, 
 and therefore the appellant was not 
 liable. The only affirmative averment 
 in this paragraph is, that appellee was 
 travelling on a free pass. The other 
 averments are denials of what the 
 plaintiff was required to prove. But 
 it is well settled that even in the case 
 of a person riding on a free pass, com- 
 mon carriers of passengers are held 
 to the same liability as for those paying 
 fare. Pierce on Railways, 478, 483 ; 
 Gillenwater v. The Madison, &c. R. R. 
 Co., 5 Ind. 339; Indiana Central 
 Railway Co. v. Mundy, 21 Ind. 48; 
 Redf. on Railways, § 149, note." 
 
62 THE LAW OP CARRIERS. 
 
 negligence of the defendant's servant. 1 Lord Abinger, C.B., 
 in summing up, said : " The first objection that the defendant 
 makes to the plaintiff's recovering in this action is that he 
 is not a common carrier. My opinion is that the defendant is 
 not a common carrier, and, if necessary, I will give leave to 
 move to enter a non-suit on that point. The next point is 
 whether the plaintiff delivered these goods to the defendant as 
 a common carrier. Now a common carrier is in the nature 
 of an insurer, and if he carries without any qualification of his 
 liability, he becomes an insurer against all but fire, tempest, 
 and the king's enemies, and he insures against thieves, and the 
 frauds of his own servants. Still there are cases in which, 
 although a person is not a common carrier, he is liable for the 
 neglect of his own servants. I take it that if a man agrees to 
 carry goods for hire, although not a common carrier, he thereby 
 agrees to make good losses arising from the negligence of his 
 own servants, although he would not be liable for losses by 
 thieves or by any taking by force ; or if the owner accompanies 
 the goods to take care of them, and was himself guilty of neg- 
 ligence, — for it is a rule of law that a party cannot recover 
 for his own negligence, — he was as much the cause of the 
 loss as the defendant. It appears that the defendant lets out 
 carts, which ply at different stands, and if, when his 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 
 servant." 
 
 Sec. 38. Rule in Whalley v. Wray. — Doing negligently 
 what it was not one's duty to do, will not be a ground of 
 action. And the duty of each carrier is to be determined not 
 only by the law, but by the circumstances which may modify 
 the contract. The case of "Whalley v. Wray 2 illustrates this 
 point. This was an action in assumpsit against the defendant ? 
 as lighterman, for damage done to the plaintiff's goods, which 
 had been intrusted to him to deposit in the plaintiff's ware- 
 house". The declaration was in the common form, viz., that 
 the defendant, being a lighterman, &c, had undertaken to 
 
 1 Brind v. Dale, 8 0. & P. 207 ; 2 M. & R. 80. 
 a 3 Esp. 74. 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 63 
 
 carry the plaintiff's goods, and to deliver them safely, and 
 then averred a loss by negligence. The facts of the case were, 
 that a quantity of rice had been delivered on board the de- 
 fendant's lighter to be landed at the plaintiff's* warehouse. 
 Previous, however, to rice being permitted to be landed, it is 
 necessary to present a petition to the commissioners of the 
 customs, who refer it to the land-surveyor, upon whose report 
 it is permitted to be landed. In this case a petition had been 
 presented to the commissioners by Mr. Stevenson, who was 
 the custom-house agent to the plaintiff ; but no report having 
 been made on it, the land-surveyor refused to permit the rice 
 to be landed ; in consequence of which it remained in the 
 lighter undischarged, when it received the damage for which 
 the action was brought. It appeared in evidence that the pre- 
 senting the petition, &c, was usually done by the custom-house 
 agent of the party to whom the rice belonged, and that it was 
 not usually done by the lighterman. Lord Eldon said : " To 
 entitle the plaintiff to recover, it must appear that the loss 
 happened by the neglect of doing that which was the regular 
 and common duty of the defendant. The law raises no pre- 
 sumption of what is his duty ; that is a matter of evidence : 
 here it is in evidence that the presenting the petition and the 
 subsequent proceedings was the business of the custom-house 
 agent of the plaintiff, not of the lighterman ; if there had been 
 any contract or undertaking on the part of the lighterman, by 
 the neglect of which the goods were spoiled, it should have 
 been the object of a special count ; there is no such count, and 
 the plaintiff has relied on the general liability of the defend- 
 ant without making it out in evidence that it was the duty of 
 the defendant to have done that from the neglect of which the 
 loss has arisen." 
 
 Sec. 39. Duty of Private Carrier enlarged by Terms of Con- 
 tract. — In a case already quoted for another purpose, 1 it was 
 held that when a person sent goods by another person who 
 said, " I will warrant they shall go safe," the individual who 
 undertook to carry the goods safely was liable for any damage 
 
 1 Robinson v. Dunmore, 2 B. & P. 416, et supra. 
 
64 . THE LAW OP CAEEIEES. 
 
 sustained by the goods, notwithstanding the owner sent one 
 of his own servants along with the cart to look after them. 
 Chambee, J., in giving judgment, said : " It has been deter- 
 mined that if a man travel in a stage-coach and take his port- 
 manteau with him, though he has his eye upon the portmanteau, 
 yet the carrier is not absolved, but will be liable if the port- 
 manteau be lost. 1 In this case the plaintiff, for greater cau- 
 tion, sends his servant with the goods, who pays for watching 
 them because he apprehends danger of their being stolen. 
 So the man who travels in a stage has some care of his 
 own property, since it is more for his interest that the prop- 
 erty should not be lost than that he should have an action 
 against the carrier." This reasoning finds favor in the eyes 
 of Me. Powell, 2 who, in his work on carriers, makes use of 
 Me. Justice Chambee's illustration, and that upon the page 
 opposite to that on which he quotes the dicta of Loed Abingee 
 in Brind v. Dale. 3 The opinion of Me. Justice Chambee, how- 
 ever, seems to be untenable, and his illustration was unfortu- 
 nate. It is true that it may be more for the owner's advantage 
 to keep his portmanteau than to have his cause of action 
 against the carrier ; but the fact that a thing is for a man's 
 advantage does not go far to prove that he will do the thing. 
 Ordinary experience every day proves that many men are 
 grossly negligent of their own property, although it is cer- 
 tainly for their interest that they should exercise the greatest 
 care. That being so, it would certainly be impolitic of the 
 law to allow a carrier to be sued for the negligence of the 
 owner of the property ; and a recent case has shown that such 
 is not the policy of the law. In that case the owner of a 
 portmanteau, in travelling from Cheltenham to Reading by 
 the Great "Western Railway, took it with him into the carriage 
 at Swindon. Having left the train for refreshment, he failed, 
 
 1 So " it is no excuse for an inn- guest in safety. And therewith agree 
 
 keeper to say that he delivered the key 22 Hen. VI. 71 ; 11 Hen. IV. 41, 42 ; 
 
 of the chamber door to the guest, in Edw. III. 11." Cayle's Case, 8 Co. 
 
 which he is lodged, and that he left 33. 
 
 the chamber door open; but he ought a Powell on Carriers, p. 13, 2d ed. 
 to keep the goods and chattels of his 8 8 C. & P. 207. 
 
CARRIERS FOR HIRE WHO ARE NOT COMMON CARRIERS. 65 
 
 on returning, to find his carriage, and continued his journey 
 in another part of the train. When the train arrived in Lon- 
 don, the portmanteau was found in the carriage in which it 
 had been placed at Cheltenham, but it had been cut open and 
 the contents had been abstracted. In an action by the passen- 
 ger against the company for the value of the articles, the jury 
 found that there had been negligence on his part, but none on 
 that of the company. It was held that the general liability of 
 the company was, under the circumstances, modified by the 
 implied condition that a passenger should use reasonable care, 
 and that, as the loss was due to his neglect alone, the verdict 
 was entered for the company. 1 So in another case, more 
 nearly resembling that referred to by Mr. Powell, it was held 
 that where the owner of a portmanteau allows his servant to 
 carry it by train as his own personal luggage, the servant tak- 
 ing and paying for his ticket, and the owner travelling by a 
 later train, he cannot, in case of the loss of the portmanteau, 
 maintain an action against the company. 2 The true result of 
 these decisions would seem to be that if the owner 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 super- 
 vision over their transport, and may, in the «words of Cham- 
 bre, J., " have his eye upon them." But, on the other hand, 
 if the owner goes by the same conveyance as his 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 car- 
 rier, 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, as he cannot be said to have assumed 
 any duty towards the owner. 3 , 
 
 We have seen, then, that the liability of a private carrier 
 may be increased by a special warranty, so that he becomes 
 
 1 Great Western Eaibray Co. v. Co., 22 L. T. N. s. 299; 18 W. B. 
 Talley, 19 W. B. 154; 23 L. T. u. s. 627; 5 L. B. Q. B. 241; 39 L. J. Q. 
 413, C. P. ; s. o. Talley v. Great West- B. 122. 
 
 ern Bailway Co., L. B. 6 C. P. 44. 8 See Talley v. Great Western Bail. 
 
 2 Beecher v. Great Eastern Bailway way Co., aide. 
 
66 THE LAW OF CARRIERS. 
 
 quoad a particular act a common carrier. "We have also seen 
 that a common carrier may, by entering into a modified con- 
 tract, diminish his liability, and may relieve himself of any 
 other duty than that which the law imposes upon a carrier 
 for hire, who is not a common carrier. But it is. further 
 within the power of a private carrier for hire to modify the 
 contract of bailment in such a way that, in case of loss or 
 injury to the goods, he shall be held liable only in case such 
 damage or loss has directly resulted from his gross negli- 
 gence. 1 It is evident, from the very nature of bailment, 2 that 
 as a man can intrust his property to another for a particular 
 time, and for particular purposes, it must also be in the power 
 of the parties to modify the terms almost infinitely, so long 
 as neither the bailor nor the bailee attempts, by contract, to 
 exempt himself from liability for his fraudulent acts, so long 
 as the contract is not contrary to morals, or in defiance of 
 legislative enactments. 3 This is evidenced by numerous de- 
 cisions. 4 Other questions which might be considered in this 
 place will be more conveniently treated of in another con- 
 nection. 
 
 1 Alexander v. Green, 3 Hill (N. when used by a private carrier, tbey 
 Y.), 9. can only be considered to mean that 
 
 2 Ante, p. 2. he will use ordinary diligence. 2 Bl. 
 8 Ante, p. 26. Com. 452. When used by a common 
 4 The words " safely and securely," carrier, they mean that he will deliver 
 
 when used in connection with a prom- the goods at all events, unless prevent- 
 
 ise to carry goods or persons, are to ed by the act of God or the king's 
 
 be construed with reference to the enemies. Ross v. Hill, 2 C. B. 877. 
 
 promise implied by law from a bailee Their meaning, therefore, depends on 
 
 under certain circumstances. Thus, the relation between the parties. 
 
WHO ARE COMMON CARRIERS. 
 
 67 
 
 CHAPTER IV. 
 
 WHO ARE COMMON CARRIERS. 
 
 Sec. 40. The Duties of Common Carriers. Sec. 56. Rule as to Partner Carriers. 
 
 41. Common Carrier an Insurer. 
 
 42. The Meaning of the Phrase " Pub- 
 
 lic Employment." 
 
 43. The Reason for the Distinction. 
 
 44. Assumption of Duties by, implies 
 
 what. 
 
 45. Rule in Brind v. Dale. 
 
 46. What constitutes a Carrier a 
 
 Common Carrier. 
 
 47. Hoymen, Barge-masters, &c. 
 
 48. Rule in Proprietors, &c. v. Wood. 
 
 49. Modifying Circumstances. 
 
 50. Not necessarily General Carriers. 
 
 51. How Nature of Business to be 
 
 determined. 
 
 52. Liability for Servants. 
 
 53. Carriers' Act. 
 
 54. Reason of Liability. 
 
 55. Effect of Contract with Servant. 
 
 57. Scope of Trade, how determined. 
 
 58. Passengers' Luggage. 
 
 59. Reason of Common-Law Lia- 
 
 bility. 
 
 60. Ordinary Luggage. 
 
 61. Question for Jury. 
 
 62. Ordinary Passengers' Luggage. 
 
 63. Merchandise. 
 
 64. Meaning of Common-Law Lia- 
 
 bility of Carriers. 
 
 65. Where Carrier will be Liable. 
 
 66. Actual Knowledge, upon Car- 
 
 rier's part. 
 
 67. Custody of Passengers' Luggage. 
 
 68. Implied Modification of Contract 
 
 69. When wide Liability attaches. 
 
 70. Limitation of Liability for Lug- 
 
 gage. 
 
 Sec. 40. The Duties of Common Carriers. — We have already 
 seen that the law imposes very onerous duties, and very con- 
 siderable risks, upon a person who is designated a common 
 carrier. As to his duty, he is bound by law to undertake the 
 carriage of goods. Another man is free from any such duty 
 until he has entered into a special agreement; but the law 
 holds that the common carrier, by the very fact of his trade 
 and business, has, on his side, entered into an agreement with 
 the public to carry goods, which becomes at once a complete and 
 binding contract when any person brings him the goods, and 
 makes the request that he should carry them to a certain person 
 or place. To make such a contract binding upon him as a 
 common carrier, it is not necessary that a specific sum of 
 money should be promised or agreed upon; but where that 
 is not the case, there is an implied undertaking upon, the part 
 
08 THE LAW OP CARRIERS. 
 
 of the bailor that the remuneration shall be reasonable. 1 To 
 make a person a common carrier, he must exercise the busi- 
 ness as a public employment, and must undertake to carry 
 goods for persons generally ; he must hold himself out as 
 ready to engage in the transportation of goods for hire, as a 
 business and not as a casual occupation pro hac vice. 2 But 
 a person may be a common carrier as to one class of property, 
 and not as to another. Thus a railroad company, while a 
 common carrier of most kinds of merchandise and property, 
 is not necessarily a common carrier of money, and generally, 
 in order to charge a person in a given case, as a common car- 
 rier, it must be shown that the usage of his business includes 
 the goods carried, or that there was a special contract to carry 
 them. 3 Thus, where a farmer undertook the carriage of goods 
 to certain points at certain seasons of the year, but not at 
 others, it was held that he did not necessarily assume the 
 relation of a common carrier as to all contracts for the trans- 
 portation of goods at other seasons, and under special circum- 
 stances ; 4 and, generally, the question in all such cases, as to 
 whether the person sought to be charged as such is a com- 
 
 1 Citizens' Bank w. Nantucket Steam- But see Chevallier v. Stralian, 2 Tex. 
 
 boat Co., 2 Story (U. S. C. C), 16. \15, -where two persons, whose usual 
 
 In this case it was held that no person business was farming, during cer- 
 
 is a common carrier, within the mean- tain seasons engaged in the business 
 
 ing of the term, who is not a carrier of hauling goods between certain 
 
 for hire. " It is not necessary," says places. The plaintiff employed them 
 
 the court, "that the consideration to haul a lot of cotton. They took the 
 
 should be a fixed sum ; it is sufficient if cotton, and while on the way some of 
 
 it be in the nature of a quantum meruit the ropes broke, and the bales burst ; 
 
 inuring to the benefit of the owners, and one night the wagon with the cot- 
 
 Nor is it necessary that the goods or ton was placed near the camp fire, and 
 
 property should be entered upon a during the night was burned. It was 
 
 freight list, or the contract be verified held that they were liable as common 
 
 by any written memorandum." carriers for the loss. But, according 
 
 2 Samms v. Stewart, 20 Ohio, 69 ; to the principal case, they would not 
 
 Pish v. Chapman, 2 Ga. 349 ; Satterlee have been liable if they had undertaken 
 
 v. Groat, 1 Wend. (N. Y.) 272; Ver- to transport the cotton by special agree- 
 
 ner v. Sweilzer, 32 Penn. St. 208. ment during a part of the season when 
 
 8 Tunnell v. Pettijohn, 2 Harr. they were not exercising this voca- 
 
 (Del.) 48 ; Powell v. Mills, 30 Miss. tion. See also Harrison v. Roy, 37 
 
 231. Miss. 396. 
 
 4 Haynie v. Baylor, 18 Tex. 498. 
 
WHO ARE COMMON CARRIERS. 69 
 
 mon carrier, is a question for the jury under proper instruc- 
 tions from the court. 1 
 
 SEC. 41. A Common Carrier is an Insurer at Law. — As to 
 his risk, we have already seen that a common carrier is re- 
 garded as an insurer at law, 2 and that consequently no amount 
 of diligence or care upon his part will relieve him from the 
 responsibility which, by the mere fact of his trade and the 
 operation of the law, has devolved upon him. He is bound 
 to deliver the goods at all events, and nothing but an act of 
 God, or the violence of foreign foes, will excuse him from this 
 imperative duty. That being the case, it is evidently a matter 
 of the utmost importance to determine who are common car- 
 riers, as i^ is certain that in many cases much injustice would 
 be done by regarding persons who had done nothing to hold 
 themselves out to the public as persons acting in that capacity, 
 as having assumed the duties and responsibilities of profes- 
 sional conveyers of goods ; and, on the other hand, an equal 
 amount of injustice might be done by failing to recognize those 
 who had used- inducements to make the public trust them with 
 goods to be carried upon the strength in the belief in the in- 
 surance offered. 3 In the one case, to raise a private carrier 
 to the position of a common carrier would, in case of loss or 
 damage to the goods intrusted to him, be a gross injustice to 
 him ; in the other, to hold a man who had undertaken the 
 duties of a carrier and an insurer as liable only in case of 
 ordinary negligence would be as great a hardship to the pro- 
 prietor of the damaged goods. The importance of arriving 
 at a satisfactory decision on this point can scarcely be exag- 
 gerated. 
 
 Sec. 42. The Meaning of the Phrase " Public Employment." 
 — According to Lord Chief Justice Holt, 4 a delivery to 
 carry for a reward to be paid to the bailee " is either a deliv- 
 ery to one that exercises a public employment, or a delivery to 
 a private person." Subsequently, the words " public employ- 
 
 1 Gordon v. Hutchinson, 1 W. & S. Steamboat Co., 2 Story (U. S. 
 (Penn.) 285. C. C), 16. 
 
 2 Forward v. Pittard, 1 T. It. 27. i Coggs v. Barnard, 1 Sm. L. Ca., 
 8 Citizens' Bank v. Nantucket p. 83, 6th ed. 
 
70 
 
 THE LAW OF CAERIEES. 
 
 ment " had a more definite connotation attached to them. In 
 an early case it was decided that any person undertaking to 
 carry for hire the goods of all persons indifferently is, as to 
 the liability imposed, to be regarded as a common carrier. 1 
 In a more recent case it was held that if a person holds him- 
 self out to carry goods for every one as a business, he is 
 a common carrier. Aldeeson, B., in summing up, said : 
 " Every one who undertakes to carry for any one who asks 
 him is a common carrier. 2 The criterion is, whether he car- 
 ries for particular persons only, or whether he carries for every 
 one. If a man hold himself out to do it for every one who 
 asks him, he is a common carrier ; but if he does not do it for 
 every one, but carries for you or me only, that is a .matter of 
 special contract." 3 
 
 1 Gisbourn v. Hurst, 1 Salk. 249 ; 
 Bao. Abr. (Carriers, A.). 
 
 2 This is regarded as the test in 
 this country ; aud a person who under- 
 takes to carry goods or persons for 
 hire, indifferently for all who may em- 
 ploy him, is a common carrier. Ver- 
 ner v. Sweitzer, 32 Penn. St. 208 ; 
 Samms v. Stewart, 20 Ohio, 69 ; Fuller 
 v. Bradley, 25 Penn. St. 120; Mer- 
 shon v. Hobensack, 22 N. J. L. 372 ; 
 Russell v. Livingston, 19 Barb. (N. Y.) 
 346. But he is only liable as such ac- 
 cording to the usages of his business. 
 Thus a person who confines his busi- 
 ness to the carriage of money or of 
 pianos, &c, is a common carrier only 
 as to such goods. Tunnell v. Petti- 
 john, 2 Harr. (Del.) 48 ; Powell v. 
 Mills, 30 Miss. 231. A horse-railroad 
 company, which simply transports per- 
 sons, is not bound to carry freight, nor 
 can it be made liable for goods carried 
 upon its cars, unless by usage it has 
 been accustomed to do so, or unless it 
 has specially contracted to do so ; and 
 the same is true as to the proprietors 
 of stage-coaches. If they Lave made 
 a practice of carrying parcels for hire, 
 they become liable as common carriers 
 
 therefor. Dwight v. Brewster, 1 Pick. 
 (Mass.) 53 ; Robertson v. Kennedy, 
 2 Dana (Ky.), 430 ; Beckman v. 
 Shouse, 5 Rawle (Penu.), 179. But 
 the fact that the driver of a horse-car 
 or of a stage-coach is shown to have 
 been in the habit of carrying parcels 
 for persons not passengers, does not 
 necessarily charge the railroad com- 
 pany nor the stage company with lia- 
 bility therefor as common carriers. In 
 order to have that effect, it must be 
 shown that it was done with their 
 knowledge or assent, express or im- 
 plied. Sheldon v. Robinson, 7 N. H. 
 157. See as to the effect of the usages 
 of a business upon this question, Har- 
 rington v. McShane, 2 Watts (Penn.), 
 44. 
 
 8 Ingate v. Christie, 3 Car. & K. 61. 
 In Pennewell v. Cullen, 5 Harr. (Del.) 
 238, it was held that a private carrier 
 is one who, without being engaged in 
 such business as a public employment, 
 undertakes, in a particular case, to 
 carry goods for hire, and that a person 
 merely keeping a vessel for his own 
 use does not become a common car- 
 rier by chartering her to a person by 
 special agreement ; and in all cases it 
 
WHO ARE COMMON CARRIERS. 71 
 
 SEC. 43. The Reason for the Distinction. — The reason for 
 such a distinction is easily appreciated. While a few acts 
 may be undertaken by one who does not mean to prosecute 
 the trade to which these acts properly belong, a great many 
 acts undertaken, not at the request of particular individuals, 
 but at the request of any indifferent person, shows that the 
 person who does undertake thus to do a certain work is, to 
 all intents and purposes, practising the business or employ- 
 ment which his conduct would lead a man of ordinary experi- 
 ence to suppose. The whole course of a man's life is often a 
 much more secure promise of his future than a few words 
 which may be forgotten as soon as they are spoken ; and as 
 the experience of mankind has taught them to rely upon the 
 conduct of their fellow-men, any one who, by his acts, leads 
 the public to suppose that he belongs to a certain trade or pro- 
 fession, is by law properly held to have assumed tbe duties 
 and responsibilities of a member of the profession or trade to 
 which he appears to belong. It is in each man's power to 
 refrain from such a' course of conduct as will impose these 
 duties and liabilities upon him. If he does assume a certain 
 position with his eyes open, he must fulfil the duties of that 
 position, otherwise there would be injustice to the public. 1 
 
 may be said that when a special eon- to carry a load of iron to Saugerties, 
 tract is made with a common carrier which was a place beyond, New York, it 
 as to that transaction, he becomes a was held that they were common car- 
 private carrier. Moriarty v. Ham- riers for the whole distance. Tucker- 
 den's Express, 1 Daly (N. Y. C. P.), man v. Stephens, &c. Transportation 
 227. In Allen v. Sackrider, 37 N. Y. Co., 32 N. J. L. 320. 
 341, the owner of a sloop was specially 1 Blossom v. Griffin, 13 N. Y. 369 ; 
 employed to make two trips with her to Wilcox v. Parmalee, 3 Sandf. (N. Y.) 
 carry grain. It was held that this was 610. In Harrison v. Roy, 39 Miss. 396, 
 not sufficient to charge him as a com- a planter employed his wagons in haul- 
 mon carrier. But the circumstance ing his crops to markets, and habitu- 
 that a person usually transports goods ally loaded them with goods to be car- 
 only between certain points does not ried for hire on their return trip. It 
 necessarily restrict his liability as a was held that by receiving such goods 
 common carrier to the transportation and receipting therefpr, undertaking to 
 of goods between those points when he deliver them in good order and with- 
 specially undertakes to transport them out delay, at the customary charges, 
 beyond those points. Thus, where the he became responsible as a common 
 defendants, who were common carriers carrier, 
 between Newark and New York, agreed 
 
72 THE LAW OP CARRIERS. 
 
 Sec. 44. Assumption of Duties of Common Carriers implies 
 the Assumption of their Responsibilities. — The case of Palmer 
 v. Grand Junction Railway Company 1 throws light upon this 
 subject. A railway company was incorporated by Act of Par- 
 liament, 2 with authority, if they should think fit, to carry 
 goods and passengers on the railway ; at the same time they 
 were to be bound to keep the fences of the line in repair. The 
 act also contained a clause that no action should be brought 
 against them "for anything done or omitted to be done in pur- 
 suance of that act, unless fourteen days' previous notice in 
 writing be given of such intention." The company undertook 
 to carry some horses by the railway from Liverpool, and to 
 deliver them safely at Birmingham, but in consequence of 
 some of the fences being broken down, the train was overset 
 by coming in contact with a horse which had strayed from a 
 neighboring field, and one of the horses that the company had 
 undertaken to carry was killed, and the rest were injured. 
 The owner brought an action and declared against the com- 
 pany as common carriers. It was decided that although it 
 was, in the first instance, optional with the company whether 
 they should trade at all as common carriers, that, having 
 elected to do so, and not having restricted their liability by 
 any special contract, they were subject to the liabilities of 
 carriers at common law, viz., responsible for all losses which 
 do not fall within the excepted cases of the act of God or of 
 the queen's enemies ; and it was also held that they were not 
 entitled to notice of action when declared against as such. 
 Whenever, therefore, an individual indicates, by his ordinary 
 occupation, that he does carry goods or passengers for hire, 
 and not simply by any casual acts he may have undertaken, 
 he is, in so far as his duties and liabilities go, to be looked 
 upon as a common carrier. But the question as to the kind 
 of occupations which do imply a carriage of the goods of the 
 public for hire is a question which it is sometimes difficult to 
 answer. 3 
 
 1 4 M. & W. 749 ; 7 Dowl. P. C. 8 Harrison v. Roy, ante; Chevallier 
 232 ; 1 Horn & H. 489. v. Strahau, ante; Witbeck v. Schuyler, 
 
 2 3 WU1. IV. c. 34 (local and per- 44 Barb. (N. Y.) 469; Wilcox v. Par- 
 sonal). make, ante; Haynie v. Baylor, 18 Tex. 
 
WHO ARE COMMON CARRIERS. 
 
 73 
 
 Sec. 45. Rule in Brind v. Dale. — In Brind v. Dale, 1 it was 
 held that a town carman, not conveying goods from any one 
 known terminus to another, but plying for hire near the 
 wharves, and undertaking jobs as he can get them, is not a 
 common carrier. And in the same case, as we have seen, 2 it 
 was held that the fact that the owner had promised to follow 
 the cart in which his goods were being carried, and look after 
 his baggage, made the delivery of the goods to the carrier a 
 delivery of a modified nature, and not a delivery of goods to 
 a common carrier. It is of course clear that, unless a person 
 or company definitely holds himself or itself out to the pub- 
 lic as a trader in the capacity of a common carrier, these lia- 
 bilities cannot be imposed upon him or it. Thus, where a 
 railway company posted up a list of tolls, including those 
 taken for coals, at a particular station, such an advertisement 
 was held of itself to be insufficient .evidence of the alleged 
 fact that the company held themselves out to the public as 
 common carriers of coal from that station, or from any par- 
 ticular station. 3 
 
 498; Hall o. Renfro, 3 Met. (Ky.) 
 51 ; Allen v. Sewall, 2 Wend. (N. Y.) 
 327. In the last case, a steamboat 
 company, incorporated for the trans- 
 portation of goods, wares, and mer- 
 chandise, and made individually liable 
 as common carriers, are not common 
 carriers of packages of bank-bills, un- 
 less they make it a part of their ordi- 
 nary business, and are not liable for 
 loss of such packages intrusted to the 
 master of the boat, if they had for- 
 bidden him to carry money, and he had 
 never knowingly done it, and if the 
 usage was for persons sending money 
 to pay the masters, and for the steam- 
 boat company to charge freight only 
 on specie. Sewall v. Allen, 6 Wend. 
 (N. Y.) 335. Compare Citizens' Bank 
 v. Nantucket Steamboat Co., 2 Story 
 (U. S. C. C), 16. 
 
 1 2 M. & Rob. 80 ; 8 Car. & P. 
 207. It is somewhat difficult to see 
 
 why the circumstance that the goods 
 are not conveyed from a known ter- 
 minus should affect the liability of the 
 individual who undertakes to carry 
 them. Neither is it easy to understand 
 why the circumstance that this carrier 
 of goods plies in the streets for any 
 job he can get, and that he has no fixed 
 rate of charges, should prejudice the 
 bailor's right to compensation in case 
 any of his property is lost or injured. 
 
 2 Ante, p. 43. 
 
 8 Oxlade v. North-Eastern Railway 
 Co., 9 W. R. 272; 3L. T. n. s. 671, 
 C. B. But if it is shown that he has 
 publicly exercised this calling, and es- 
 tablished a usage in that respect, it is 
 sufficient. Haynie v. Baylor, ante; 
 Dwight v. Brewster, 1 Pick. (Mass.) 
 53 ; Robertson v. Kennedy, 2 Dana 
 (Ky.), 430. Thus, in the last two 
 cases, it was held that the practice of 
 conveying for hire, in a stage-coach, 
 
74 THE LAW OP CARRIERS. 
 
 SEC. 46. What constitutes a Carrier a Common Carrier. — So, 
 where the declaration against the owners of a ferry stated 
 that they were possessed of a ferry across the river Mersey, 
 from Woodside to Liverpool, and that the plaintiff delivered 
 to the defendants a phaeton, together with the jewelry and 
 watches contained in it, to he conveyed by them in a steam- 
 boat from Woodside to Liverpool, and there landed for the 
 plaintiff, it also alleged the duty of the defendants to take care 
 of the plaintiff's property while it was in their custody, and 
 also alleged the breach of this duty through negligence. In 
 this case it was held that a contract to carry and land the car- 
 riage and jewelry, as stated in the declaration, could not be 
 implied from the mere character of the defendants as owners of 
 the ferry, but that it was a question for the jury whether there 
 was in fact a contract between the parties, either express or 
 implied from usage, to t^ie the carriage on board, and to land 
 it again at the end of the transit across the river. 1 These 
 cases will show that it is not always easy to say from what 
 facts we are to infer the existence of the business of common 
 carriers in each particular case. But there seems to be reason 
 for regarding the above rule as a correct criterion, that 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 un- 
 derstanding as the ground of an agreement is not modified by 
 a special contract, the individual so acting will be held to be a 
 common carrier. 2 
 
 Sec. 47. Hoymen and Barge-masters are Common Carriers. 
 — Sir William Jones pointed out that although no substan- 
 
 paroels not belonging to passengers, 2 The carrier of messages, if it is 
 constitutes the proprietors of the coach his habitual occupation, may be a coin- 
 common carriers as to such parcels, mon carrier. M 'Andrew v. Electric 
 But the proprietors must be shown to Telegraph Co., 17 C. B. 3 ; 25 L. J. 
 have had knowledge of such practice, 26, C. P. This is not true of the post- 
 or to have assented thereto, expressly master-general. 12 Car. II., c. 35 ; 
 or impliedly. Sheldon v. Robinson, 7 but see Lane v. Cotton, 1 Ld. Raym. 
 N. II. 157. 646 ; Whitefield v. Lord Despencer, 2 
 
 1 Walker v. Jackson, 10 M. & W. Cowp. 754. 
 161 : 12 L. J. Exch. 165. 
 
WHO ARE COMMON CARRIERS. 75 
 
 tial difference exists between " carriage by land and carriage 
 by water, — or, in other words, between a wagon and a barge, 
 — yet it soon became necessary for the courts to declare, as 
 they did in the reign of James I., that a common hoyman, 
 like a common wagoner, is responsible for goods committed 
 to his custody, even if he be robbed of them. 1 All that has 
 just been advanced, then, concerning a land carrier, may 
 therefore be applied to a barge-master or boatman." 2 
 
 This principle has, since that time, become the subject of 
 judicial affirmation, it having been decided that a hoyman 
 who undertakes to carry goods must deliver them safely, ex- 
 cept damaged by the act of God or by the king's enemies ; 3 
 so the liability of a wharfinger who undertakes to convey 
 goods from his wharf to the vessel in his own lighter, is ex- 
 actly similar to that of a common carrier. 4 In one case the 
 carrier of goods by water was held liable for damage occa- 
 sioned by running against an anchor to which no buoy ap- 
 peared to be fastened ; 5 and in this case Lord Mansfield and 
 the other judges of the Court of King's Bench expressly 
 declared that there was no distinction between a land and a 
 water carrier. 6 Indeed, it could scarcely be otherwise. The 
 laws of the country are founded on the thoughts of those who 
 inhabit it, and in thought there can be no reason for distin- 
 guishing between the duties or liabilities of two persons who 
 in the same way hold themselves out to the public as professed 
 
 1 Hob. Ca. 30 ; 2 Cro. 330. Rich 6 The law with regard to this sub- 
 v. Kneeland. " The first case of this ject is the same in this country, al- 
 kind," says Lord Holt, " to be found though there have been conflicting 
 in our books." 12 Mod. 480. decisions. See 2 Kent's Com. 600 ; 
 
 2 Jones on Bailm., 3d ed., pp. 106, Story on Bailm., § 489 ; Allen v. Sew- 
 q, r, s, t, v, w, 107, o, p, q, r. See all, 2 Wend. (N. Y.) 327 ; M'Arthur v. 
 also King v. Shepherd, 3 Story (U. S. Sears, 21 Wend. (N. Y.) 189 ; Merritt 
 C. C), 349. v. Earle, 31 Barb. (N. Y.) 38 ; Hays v. 
 
 8 Dale v. Hall, 1 Wils. 281 ; Rich- Kennedy, 41 Perm. St.. 378 ; McHenry 
 
 ardson v. Sewell, 2 Smith, 205. v. Railroad Co., 4 Harr. (Del.) 448 ; 
 
 4 Maving v. Todd, 1 Stark. 72; The Gold Hunter, Blatch. & How. CO. 
 
 Goff v. Clinkard, 1 Wils. 282. S. C. C.) 300; Boney v. The Hunt- 
 
 6 Trent Navigation v. Wood, 3 Esp. ress, 4 Hunt's Merch. Mag. (Jan., 
 
 127 ; Abb. on Ship. , 11th ed., p. 329 ; 1841) 83. But see Lamb v. Parkman, 
 
 4 Dougl. 287 ; 1 T. R. 28, n. 1 Sprague (U. S. C. C), 343. 
 
76 THE LAW OP CARRIERS. 
 
 carriers of goods for hire, merely because the one conveys the 
 wares with which he is intrusted in a cart, while the other 
 conveys the goods placed in his hands by means of a barge ; 
 or because the journey of the one is over a road, and the other 
 is over a river. To us there seems to be no possible ground 
 upon which to distinguish between professed carriers for hire 
 and professed bargemen, professed canal boatmen or professed 
 ferry boatmen, in so far as duties and liabilities go. 
 
 Sec. 48. Rule in Proprietors, &o. v. Wood. — In The Pro- 
 prietors of the Trent Navigation Company v. Wood, 1 Buller, J., 
 said, " As a general principle, there is no distinction between 
 a land and a water carrier ; " and in Eichardson v. Sewell, 2 
 Lord Ellenborough suggested that at common law there 
 was no difference between the liabilities of carriers by land 
 and carriers by sea, " except that at sea the acts of God, which 
 give rise to accidents excepted, are multiplied beyond those 
 on land, and therefore many things at sea are excepted 
 against, which cannot happen by land." It is true that the 
 proof that the work in question is within the province of their 
 ordinary avocations will differ in each one of these cases ; but 
 that can be no reason for making a distinction between the 
 liabilities of those persons, when the fact that carriage of 
 goods for hire is their ordinary employment, and that it is 
 exercised publicly, has been satisfactorily proved. The same 
 principle will hold with regard to any other kind of water 
 carriage. 3 There can be no grounds for saying that carriage 
 
 1 3 Esp., at p. 132. See also Rich Holt, in the celebrated case of Coggs 
 
 v. Kneeland, Cro. Jac 330; Wardell v. Barnard, 2 Ld. Raym. 909, in com- 
 
 v. Mourillyan, 2 Esp. 693. meriting upon the common-law lia- 
 
 a 2 Smith, 205. bility of a common carrier, thus 
 
 8 Morse «. Slue, 1 Vent. 190, clearly states the rule as to the re- 
 
 238; T. Raym. 220. See Jones on sponsibility assumed by them: "The 
 
 Bailm. p. 190; Trent Nav. Co. v. law charges every person exercising 
 
 Wood, 3 Esp. 127. See also Dale v. the public employment of a common 
 
 Hall, 1 Wils. 282; Boson v. Sanford, carrier, common hoyman, master of a 
 
 2 Salk. 439 ; Ellis v. Turner, 8 T. R. ship intrusted to carry goods, against 
 
 531 ; Gale v. Laurie, 5 B. & C. 156 ; all events but acts of God and enemies 
 
 Bennett v. Peninsular & Oriental of the king. For though the force be 
 
 Steamboat Co., 6 C. B. 775 ; but see never so great, as if an irresistible 
 
 17 & 18 Vict. c. 104, § 583. Lord multitude of people should rob him, 
 
WHO ARE COMMON CARRIERS. 
 
 77 
 
 by means of steam should in any way vary the liability of the 
 owner of the steamboat from what it would be if the boat was 
 
 nevertheless he is chargeable. And 
 this is a politic establishment con- 
 trived by the policy of the law for the 
 safety of all persons, the necessity of 
 whose affairs obliges them to trust 
 this sort of persons, that they may 
 be safe in their dealings. For else 
 these carriers might have an opportu- 
 nity of undoing all persons that had 
 any dealings with them by combining 
 with thieves, &c. ; and yet doing it in 
 such a clandestine manner as would 
 not be possible to be discovered. And 
 this is the reason the law is founded 
 upon that point." The rule as stated 
 by Lord Holt has been somewhat 
 modified, or rather it has been ex- 
 tended, so as to relieve the carrier from 
 liability in certain cases where, per- 
 haps upon a strict construction of the 
 rule as stated by him, he might not be 
 exempt; and it may be said that a 
 common" carrier is not only liable for 
 negligence, but is an insurer against 
 any loss not occasioned by the act of 
 God, public enemies, the fault of the 
 party, or from the inherent qualities of 
 the property itself. Harris v. North 
 Indiana R. R. Co., 20 N. Y. 232; 
 Kohannan v. Hammond, 42 Cal. 227 ; 
 Rixford v. Smith, 52 N. H. 355 ; Wil- 
 liams v. Grant, 1 Conn. 487 ; Harrell 
 v. Owens, 1 D. & B. (N. C.) L. 273 ; 
 Kemp v. Coughtry, 11 John. (N. Y.) 
 107 ; Ewart v. Street, 2 Bailey (S. C), 
 273; Turner v. Wilson, 7 Yerg. 
 (Tenn.) 340; Moses v. Morris, 4 
 N. H. 304 ; and the rule is the same 
 whether the person is a carrier by 
 laud .or by water. Daggett ». Shaw, 
 3 Mo. 264 ; Spencer v. Daggett, 2 Vt. 
 92 ; Harrington v. Lyles, 2 N. & 
 McC. (S. C.) 88 ; Lea i>. Stroud, 2 
 Binn. (Penn ) 74 ; Clark v. Richards, 
 1 Conn. 54 ; Emery v. Hersey, 4 Me. 
 
 411 ; Boyle v. McLaughlin, 4 H. & J. 
 (Md.) 291 ; Harrington v. McShane, 
 2 Watts (Penn.), 443; Jones v. 
 Pitcher, 3 S. & P. (Ala.) 135. In 
 Boston & Albany R. R. Co. v. Shan- 
 ley, 107 Mass. 568, a manufacturer 
 of a blasting compound ordered one 
 manufacturer to send him a quantity 
 of dualin, and another to send him 
 certain exploders. The plaintiffs as 
 common carriers received both of these 
 articles without knowing their nature, 
 and neither manufacturer knew that 
 the two articles were ordered or were 
 to be shipped together; but the plain- 
 tiff, not knowing their nature, or that 
 there was danger from combining the 
 two, received them, and while being 
 carefully transported -they exploded, 
 injuring the property of the carrier, 
 and other property being transported 
 by it. It was held that the two man- 
 ufacturers were liable. In Barney 
 v. Burnstinbinder, 64 Barb. (N. Y.) 
 612, where nitro-glycerine was shipped 
 without notice to the carrier of its 
 dangerous qualities, and having sprung 
 aleak was taken to a warehouse at 
 San Francisco for examination, and 
 while being opened exploded, damag- 
 ing the warehouse and freight, it was 
 held that the shipper was liable, even 
 though the immediate cause of the ex- 
 plosion was the opening of the pack- 
 age. Now, in these cases it would 
 have been exceedingly unjust to have 
 held the carrier chargeable for the loss 
 of the property, when the injury 
 resulted entirely from the inherent 
 qualities of the property itself. If the 
 shipper had been made acquainted 
 with the nature of the goods, liability 
 would not have attached for injuries 
 to its property resulting from the ex- 
 plosion, neither would the carrier have 
 
78 
 
 THE LAW OP CARRIERS. 
 
 moved through the water by means of sails. And the stand- 
 ard by which we must judge of the liability in all these cases 
 
 been liable for the loss of the property 
 itself. Ewart v. Street, 2 Bailey (S. C), 
 157 ; Campbell v. Morse, Harp. (S. C.) 
 157; Gordon v. Little, 8 S. & R. 
 (Penn.) 573 ; Colt v. McMeohen, 6 
 Johns. (N. Y.) 160; Williams v. 
 Grant, 1 Conn. 487 ; Spencer v. Dag- 
 gett, 2 Vt. 92 ; Emerey v. Horsey, 4 
 /Me. 411 ; Pemberton Co. v. New 
 York Central R. R. Co., 104 Mass. 
 144; The Live Yankee, Deady (U.S.), 
 420. In Hall v. Renfro, 3 Met. (Ky.) 
 51, the plaintiff shipped cattle by the 
 defendant's conveyance which by their 
 own viciousness caused injury to each 
 other. Held that the carrier was not 
 liable. By the term " act of God " is 
 meant something in opposition to the 
 act of man, such as storms, lightning, 
 tempests, and inevitable accidents not 
 resulting from human agency. If the 
 danger or the accideut, though una- 
 voidable, has been occasioned by the 
 act of man, the carrier cannot avail 
 himself of it as an excuse for the non- 
 delivery of the goods. Oakley v. 
 Portsmouth, &c. Steam Packet Co., 
 11 Exch. 622. Thus, where an action 
 was brought against a common carrier 
 for not safely carrying and delivering 
 a quantity of hops, and it appeared 
 that a fire broke out in a building ad- 
 joining a booth under which the car- 
 rier had placed the hops, and burnt 
 with inextinguishable violence, and 
 extended itself to the hops, and con- 
 sumed them, without any neglect or 
 default on the part of the carrier him- 
 self, it was held that inasmuch as. the 
 fire had not been occasioned by light- 
 ning, but by the act of man, the oc- 
 currence of the disaster constituted no 
 answer to the action. Forward v. Pit- 
 tard, 1 T. R. 33 ; Hyde v. Trent Nav. 
 Co., 5 T. R. 399. If the goods have 
 
 been destroyed or swept away by rains 
 and floods, the circumstances attend- 
 ant upon the loss must be regarded, in 
 order to determine whether it has been 
 occasioned by the act of God or the 
 act of man. If the common carrier 
 has neglected to provide proper cov- 
 erings for the goods ; if he has gone 
 out of his way to meet the danger; if 
 he has travelled by unusual roads, or 
 crossed a plain subject to inundations 
 when he might have kept the high 
 ground and been safe, the loss occa- 
 sioned thereby is a loss from the act 
 or negligence of man, and the common 
 carrier is consequently responsible 
 therefor. Doct. & Stud. Dial. 2, c. 
 38 ; Noy, c. 43. Not only is a com- 
 mon carrier liable for all injuries to 
 goods being transported by him, ex- 
 cept such as arise from the act of God, 
 public enemies, or the act of the party, 
 but he is not relieved from • liability, 
 except for such injuries as mast be 
 attributable to the act of God ; and the 
 mere fact that they may be so attrib- 
 uted is not enough. Neither is it 
 enough that they have been lost by the 
 act of God, if his own act or neglect 
 has in any measure contributed to 
 bring about the injury. Thus, if he 
 has departed from his line of duty, aud 
 has violated his contract, and while 
 thus in fault, and in consequence of 
 that fault, the goods are injured by an 
 act of God, which would not otherwise 
 have occurred, he is liable. Read v. 
 Spaulding, 30 N. Y. 630 ; Michaels v. 
 New York, &c. R. R, Co., 30 N. Y. 564. 
 So, where a violent storm caused an 
 unusually low tide, and the carrier's 
 barge, while lying at the pier which 
 was used by him, was pierced by a 
 timber projecting from the wharf, 
 which was covered at ordinarily low 
 
WHO ABB COMMON CARRIERS. 
 
 79 
 
 is the same, viz., the damage having been caused by the act 
 of God or by the act of the queen's enemies. 1 
 
 tide, but which was known by the car- 
 rier to exist, it was held that he 
 was liable, notwithstanding that the 
 fact of his leaving his barge there 
 would not have produced the injury 
 without the concurrence of the act of 
 God, and the negligence of the wharf- 
 builder. New Brunswick Co. v. Tiers, 
 24 N. J. 697. In Michaels v. New 
 York, &o. R. R. Co., 30 N. Y. 564, 
 the defendant received at Albany a 
 box from the Hudson River R. R. 
 Co., to be transported to Rochester. 
 It did not forward the box at once, as 
 it was its duty to do, but placed it in 
 its freight-house, and kept it for some 
 days, to await the rendering of a bill 
 for back charges. While the box was 
 in the freight-house, the goods were 
 wet and injured by an nnusnal rise of 
 the Hudson River. It was held that 
 while the injury to the goods arose 
 from the act of God, yet the negli- 
 gence of the carriers having concurred 
 in and contributed to the injury, they 
 were liable therefor. The same ques- 
 tion was involved and the same rule 
 adopted in Read v. Spaulding, ante. 
 But if the injury would have happened 
 independent of his fault, his concurring 
 act will not render him liable. Hill v. 
 Sturgeon, 28 Mo. 323. And when a 
 carrier sets up inevitable accident, or 
 the act of God, as a defence, the bur- 
 den is upon him to show not only that 
 the injury resulted from a cause over 
 which he had no control, but that his 
 act in no wise contributed to the in- 
 jury, the presumption being against 
 him. Van Winkle v. South Carolina 
 R. R Co., 38 Ga. 32 ; Day v. Ridley, 
 
 16 Vt. 48; Lawrence v. McGregor, 
 Wright (Ohio), 193 ; Spencer v. Dag- 
 gett, 2 Vt. 92 ; Avend v. Liverpool 
 Steamship Co., 64 Barb. (N. Y.) 118 ; 
 The Rockett, 1 Biss. (U.S.) 354; 
 Lewis v. Smith, 107 Mass. 374. 
 
 Anything may be said to result 
 from the act of God in the production 
 of which man has no agency, immediate 
 or remote, as injuries resulting from 
 lightning, the death of animals with- 
 out fault on the part of man, or any 
 cause which arises without the agency 
 of mankind in auy measure. Hall v. 
 Renfro, 3 Met. (Ky.) 51. It is some- 
 times said that inevitable accident and 
 the act of God are synonymous terms 
 when used in reference to the liability 
 of a common carrier. Neal v. Sander- 
 son, 1 S. & M. (Miss.) 572 ; Pish v. 
 Chapman, 2 Ga. 349. But this is not 
 so where the carrier by means of pub- 
 lic advertisements or otherwise has 
 held himself out as insuring a safe 
 delivery. In Morrison v. Davis, 20 
 Penn. St. 171, the defendants con- 
 tracted to transport goods for the 
 plaintiff upon a canal. There came, on 
 an extraordinary flood in a certain 
 division of the canal, by reason of 
 which the boat was wrecked. The 
 plaintiff insisted that the defendant 
 could not excuse himself from liability 
 upon the ground of inevitable accident, 
 because he started off his boat with 
 one lame horse, and except for that 
 would have passed the point where 
 the accident happened, before the 
 flood. But the court held that where 
 nothing had been done by the carrier 
 to insure an absolutely safe delivery, 
 
 1 Sidoret v. Hall, 4 Bing. 607 ; 1 
 M. & P. 561 ; Gatliffe v. Bourne, 4 
 Bing. N.C. 314; 5 Scott, 667; lArn. 
 
 366, 369. See 7 Geo. II. 
 26 Geo. III. c. 159. 
 
 c. 15, and 
 
80 
 
 THE LAW OP CARRIERS. 
 
 SEC. 49. Modifying Circumstances. — But circumstances 
 might arise, even in a case where the damage had arisen from 
 
 the law made an exception in favor of 
 the earner for all injuries resulting 
 from inevitable accident, and the fact 
 that the defendant's horse was lame, 
 as connected with the injury, was a 
 cause too remote to affect the question 
 of liability. The striking of a steam- 
 boat or other vessel on a snag or on a 
 rock, the existence of which was not 
 known to the carrier, or was not gen- 
 erally known, is held as such an inevi- 
 table accident as will excuse a carrier 
 from liability. Steamboat Co. v. 
 Pason, Harp. (S. C.) 262; Williams 
 v. Grant, 1 Conn. 487; Barnwell v. 
 Hussey, 1 Tread. (S. C.) 114. But 
 otherwise, where the snag or rock is 
 known to exist, even though the boat 
 is driven on to it by a tempest. Col- 
 lin v. Valentine, 11 Miss. 287. 
 
 In Harris v. Band, 4 N. H. 259, the 
 plaintiff undertook to carry a lot of 
 salt on his boat from Hartford to 
 Haverhill, on the Connecticut Biver. 
 He arrived with his boat within four- 
 teen miles of Haverhill, when by rea- 
 son of ice in the river he was compelled 
 to land the salt, and a part of it was 
 lost. In an action for the freight, it 
 was held that the defendant was not 
 liable to pay freight on the lost salt. 
 When the carrier is excused from lia- 
 bility for the loss of goods by rea- 
 son of inevitable accident, he cannot 
 charge freight. If a barge-owner who 
 carries goods for hire on a canal ac- 
 cepts certain goods to be earned for 
 hire, and rats gnaw a hole in the 
 barge, and cause a leak, and the goods 
 are injured, the barge-owner is respon- 
 sible for the damage. Dale v. Hall, 1 
 Wils. 281. He is not, of course, re- 
 sponsible for any deterioration in the 
 value of the goods resulting from 
 the negligence or want of care of the 
 
 owner or the consignor, such as de- 
 fective packing, nor for losses occa- 
 sioned by an inherent defect in the 
 article causing its destruction. If, 
 however, the defective packing of 
 goods is patent and visible, and easily 
 remedied, and he accepts the goods 
 for conveyance, he is bound to take 
 all reasonable means to provide against 
 the defect and secure their safety. 
 Where a dog, with a string about his 
 neck, was delivered to a common car- 
 rier to be carried, and was tied by the 
 string in a watch-box, and shortly 
 afterwards the dog slipped his head 
 through the noose and escaped, and 
 was never seen afterwards, and an 
 action was brought to recover the 
 value of the dog, and it was contended 
 that the owner ought to. have taken 
 care that the cord was properly se- 
 cured round the dog's neck, it was 
 held that as the common carrier had 
 the means of seeing that the dog was 
 insufficiently secured, he ought to 
 have locked him up, or taken other 
 proper means to secure him, and that 
 he was responsible for the loss. Stuart 
 v. Crawley, 2 Stark. 324. Where, 
 however, a greyhound, secured in the 
 way ordinarily adopted and obviously 
 intended by the owner to be used, 
 namely, by a collar and strap, was de- 
 livered to a railway company to be 
 carried, and the greyhound during the 
 journey slipped his head through the 
 collar and was lost, it was held that 
 the company was not responsible. 
 Bichardson v. North-Eastern Bailway, 
 L. B. 7 C. P. 75. 
 
 If a cargo or load of goods weigh- 
 ing a certain weight be delivered to a 
 common carrier to be carried for hire, 
 and the cargo on its arrival at its des- 
 tination is deficient in weight, there is 
 
WHO ARE COMMON CARRIERS. 
 
 81 
 
 the act of God or the country's enemy, in which the carrier 
 would not be relieved from his liability for loss or damage. 
 If a carrier goes out of his way to meet the enemies of the 
 queen, if, through his own evident carelessness, he has brought 
 the goods with which he is intrusted into the jeopardy in which 
 they suffer by the act of God, he would be properly held liable 
 for the damage thence ensuing. 1 In an action against the 
 
 a prima" facie presumption of negli- 
 gence 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 t>. Smith, C. & M. 72. So 
 of all freight. The carrier's receipt 
 stating the condition in which the 
 goods are received, and the quantity, 
 is prima facie evidence that the goods 
 were in good order when received, 
 and that there was the quantity there- 
 in stated ; and any injury thereto, or 
 diminution in the quantity, throws the 
 burden on the carrier of showing that 
 the loss did not arise from any default 
 or miscarriage on his part. Hastings 
 v. Pepper, 11 Pick. (Mass.) 43 ; Rich 
 v. Lambert, 12 How. (U. S.) 347 ; 
 Clark v. Barwell, 12 How. (U. S.) 
 272; Warden v. Grear, 6 W. & S. 
 (Penn.) 424 ; Nelson v. Woodruff, 1 
 Black (U. S. C. C), 161 ; Murphy v. 
 Stanton, 3 Munf. (Va.) 237; Alden 
 v. Pearson, 3 Gray (Mass.), 342 ; 
 Penn v. Simpson, 4 B. D. S. (N. Y.) 
 276. The rule relative to a carrier's 
 liability does not extend to the time of 
 delivery. As to that, he is only an- 
 swerable when he has failed to exer- 
 cise due diligence. Parsons v. Handy, 
 14 Wend. (N. Y.) 215. Nor does it 
 extend to injuries resulting from the 
 inherent qualities of, or defects in, the 
 property transported. Hall v. Benfro, 
 3 Met. (Ky.) 51. 
 
 1 If a carrier departs from the line 
 of duty and violates his contract, if 
 the goods are lost while thus in fault, 
 
 and in consequence thereof, by an act 
 of God which would not otherwise 
 have produced the injury, he is not 
 protected. Michaels v. New York, 
 &c. B. B. Co., 30 N. Y. 564. Thus, 
 where the carrier was guilty of an un- 
 reasonable delay in forwarding goods, 
 and while they were in a railroad depot 
 at an intermediate point they were 
 wetted and injured by an extraordi- 
 nary flood, caused by the damming up 
 of the water in the channel by ice, and 
 setting the same back upon the freight 
 depot, and it was held that the goods 
 having been exposed to the peril by 
 the fault and neglect of the carrier, he 
 was liable for the injury. Bead v. 
 Spauldiug, 30 N. Y. 630. So where 
 a carrier attempted to ford a stream 
 between sunset and dark, while a 
 shower was approaching, without ex- 
 amining the state of the ford, and the 
 wheels of his wagon stuck fast in the 
 mud of the stream, and the water rose 
 with extraordinary suddenness, and 
 the goods were injured, it was held 
 that he was liable therefor. Campbell 
 v. Morse, Harp. (S. C.) 468. In 
 order to excuse the carrier for iujuries 
 resulting from the act of God, it must 
 appear that the injury occurred with- 
 out fault on his part. Smith v. Whit- 
 man, 13 Mo. 352 ; Nettles v. Bailroad 
 Co., 7 Bich. (S. C.) 190 ; Blackstack 
 v. New York, &c. B. B. Co., 1 Bosw. 
 (N. Y.) 77. Where the act of God 
 is relied upon to excuse a carrier, it 
 must be shown to be not only the sole, 
 but the immediate, cause of the loss ; 
 
 6 
 
82 
 
 THE LAW OP CARRIERS. 
 
 proprietors of a steam vessel to recover compensation for 
 damage done to goods sent by them as carriers, if, on the 
 whole, it be left in doubt what the cause of the injury was, or 
 if it may as well be attributable to the perils of the seas as to 
 negligence, the plaintiff cannot recover; but if the perils of 
 the sea require that more care should be used in the stowing 
 of the goods on board than was bestowed on them, that will 
 be negligence for which the owners of the vessel will be an- 
 swerable. 1 In another case, where the defendant received on 
 board his barge certain lime, which was to be conveyed for 
 the plaintiff from Bewly Cliff to London, the master deviated 
 from the usual and customary voyage without any justifiable 
 cause, and while the barge was so out of her course, she en- 
 countered a storm, and the sea communicating with the lime 
 caused it to ignite, and the barge and cargo were lost. In an 
 action on the case for the loss of the lime, the declaration 
 alleged that " it was the duty of the defendant to have carried 
 and conveyed the lime by and according to the direct, usual, 
 
 and a loss occasioned bj an obstruc- 
 tion in a river, produced by mixed 
 causes, and which is not the result of 
 the operation of natural forces upon 
 natural objects alone, as the shores or 
 the bottom, is not, in a logical or 
 legal sense, the act of God. Thus, 
 where a steamboat carrying property 
 for hire, was wrecked in the Hudson 
 by running upon the mast of a sunken 
 vessel which had been capsized and 
 sunk by a violent storm a day or two 
 before, it was held that the owner of 
 the steamboat was liable for the prop- 
 erty lost by the sinking of the steamer. 
 Merritt, v. Earl, 31 Barb. (N. Y.) 38 ; 
 affirmed, 29 N. Y. 115. So, while a 
 carrier is not responsible for the loss 
 of perishable property by natural de- 
 cay in transportation, yet if in the 
 transportation the carrier does that 
 which hastens the natural process of 
 decay, or if he neglects to take reason- 
 able measures to prevent the loss of 
 
 the property by the operation of the 
 weather, he is responsible therefor. 
 Thus, where potatoes were shipped 
 over the defendant's road, and he 
 failed to use due care to prevent their 
 being frozen, and in consequence of 
 which they were lost, the company 
 was held liable therefor. Wing v. 
 New York, &c. R. R. Co., 1 Hilt. 
 (N. Y. C. P.) 235. So, where horses 
 which were shipped on board a ferry- 
 boat started and ran overboard, the 
 defendant not having erected sufficient 
 barriers to prevent such accidents, it 
 was held that the accident could not 
 be said to have happened by reason of 
 any natural infirmity of the property, 
 but rather from the ferryman's want 
 of proper care in not having erected 
 suitable barriers to prevent such acci- 
 dents. Powell v. Mills, 37 Miss. 671. 
 1 Muddle v. Stride, 9 Car. & P. 
 380. See also The Peytona, Ware 
 (U. S. C. C), 541. 
 
WHO .ARE COMMON CAERIERS. 83 
 
 and customary way, course, and passage, without any volun- 
 tary and unnecessary deviation or departure from, or delay or 
 hindrance in the same ; " and averred the loss to be by reason 
 of the departure, delay, and deviation from such usual and 
 customary course and passage : it was held that the damage 
 sustained by the plaintiff was sufficiently proximate to the 
 wrongful act of the defendant to form the subject of an action, 
 and it was further held that the declaration was sufficient to 
 support a judgment for the plaintiff. 1 It will be seen from 
 these cases that a carrier will not be excused from liability 
 for the loss of goods by reason of the loss having occurred 
 through the act of God or the queen's enemies, unless those 
 excepted perils are the proximate and sole cause of the loss. 
 If the carrier by his own act contribute to the loss, he will 
 still be liable. 
 
 SEC. 50. Common Carriers not necessarily General Carriers. 
 — It will be clearly understood that a man may be a common 
 carrier of one thing, while he is not a common carrier of 
 another. An electric telegraph company, which holds itself 
 out to the public as a carrier of messages, 2 is not to be held 
 a common carrier of luggage, if it undertakes, through its 
 servants, to convey a portmanteau ; and is not to be regarded 
 as liable for the loss or injury, should any arise, unless it can 
 be traced to some negligence upon the part of the company, 
 or their servants. The limitation of the character of common 
 carriers is to be judged of by the profession of the individual, 
 by words, advertisements, or by the overt acts of the trade or 
 business. Thus it is allowable for the proprietors of a stage- 
 coach or steamboat to advertise that they will only carry 
 passengers. And if, when such an advertisement has been 
 published, any person chooses to send luggage by such stage- 
 coach or steamboat, the proprietors will, with regard to that 
 luggage, occupy the position of private carriers for hire, and 
 
 1 Davis v. Garrett, 4 M. & P. 540; How. (U. S.) 7, 23 ; Lamb v. Cam- 
 
 6 Bing. 716. See also Parker v. den, &c. R. R. Co., 2 Daly (N. Y. 
 
 James, 4 Camp. 112 ; Max v. Roberts, C. P.), 454. 
 
 12 East, 89 ; Abbott on Ship., 5th 2 M'Andrew v. Electric Telegraph 
 
 ed., 239 ; The Niagara v. Cordes, 21 Co., 17 C. B. 3; 25 L. J. 26, C. P. 
 
84 
 
 THE LAW OF CAEEIEES. 
 
 will only be liable in case they have been guilty of a want of 
 prudent care. So it is competent for a man to avow his in- 
 tention of carrying for hire the goods of any person who will 
 pay him for so doing, and provided -the goods be of a certain 
 kind. In such a case the man who thus makes known his 
 intentions to the public, and who, in pursuance of such in- 
 tentions, plies his trade, always restricting his carrier's duties 
 to goods of a certain class, is evidently a common carrier 
 quoad that particular class of goods ; and should he be induced 
 by any one individual to carry an article of another descrip- 
 tion for hire, he is not, in regard to that article, to be regarded 
 as an insurer or a common carrier, and the law of common 
 carriers, in so far as it refers to the duty of undertaking the 
 carriage of such articles, is not applicable to him. 1 
 
 1 Moriarty v. Harnden's Express, 
 1 Daly (N. I. C. P.), 227 ; Tunnell 
 v. Pettijohn, 2 Harr. (Del.) 48; 
 Powell v. Mills, 30 Miss. 231. In 
 Michigan Southern R. R. Co. v. Mc- 
 Donough, 21 Mich. 162, it was held 
 that railroad companies are not com- 
 mon carriers of live-stock, or subject 
 to the liabilities of common carriers 
 when they assume to carry them. In 
 passing upon this question, Chkis- 
 tianct, J., said : " Por the purpose of 
 this case it may be assumed that this 
 company, by their charter and act of 
 consolidation, are required to take 
 upon themselves the business of com- 
 mon carriers, and to transport, as 
 such, all such property tendered to 
 them for that purpose as was usually 
 transported by railroads, as common 
 carriers, at the date of the charter of 
 the Michigan Southern Railroad Com- 
 pany in 1846, and any other kind of 
 property which, in the progress of in- 
 vention and business, might be ten- 
 dered for such carriage, which should 
 not, from its nature, impose risks of a 
 different character, or require an es- 
 sentially different mode of managing 
 their road, or the incurring of extra 
 
 expenses on account of the different 
 character of such new kinds of prop- 
 erty. But the transportation of cattle 
 and live-stock by common carriers by 
 land was unknown to the common law 
 when the duties and responsibilities of 
 common carriers were fixed, making 
 them insurers against all losses arid 
 injuries not arising from the act of 
 God or of the public enemies. These 
 responsibilities and duties were fixed 
 with reference to kinds of property in- 
 volving in their transportation much 
 fewer risks, and of quite a different 
 kind fromthose which are incidentto the 
 transportation of live-stock by railroad. 
 Animals have wants of their own to be 
 supplied ; and this is a mode of convey- 
 ance at which, from their nature and 
 habits, most animals instinctively re- 
 volt ; and cattle especially, crowded in 
 a dense mass, frightened by the noise 
 of the engine, the rattling, jolting, and 
 frequent concussions of the cars, in 
 their frenzy injure each other by 
 trampling, plunging, goring, or throw- 
 ing down; and frequently, on long 
 routes, their strength exhausted by 
 hunger and thirst, fatigue and fright, 
 the weak easily fall and are trampled 
 
WHO ARE COMMON CARRIERS. 
 
 85 
 
 SEC. 51. The Nature of Carriers' Business to be decided by 
 a reference to Public Representations. — We shall see that the 
 
 upon, and, unless helped up, must 
 soon die. Hogs also swelter and 
 perish. See per Parke, B., in Carr 
 v. Lancashire & York Rail. Co., 7 
 Exch. 712, 713 ; Denio, J., in Clarke 
 o. Rochester R. R. Co., 14 N. Y. 
 573. It is a mode of transportation 
 which but for its necessity would be 
 gross cruelty, and indictable as such. 
 The risk may be greatly lessened by 
 care and vigilance, by feeding and 
 watering at proper intervals, by getting 
 up those that are down, and other- 
 wise. But this imposes a degree of 
 care and an amount of labor so differ- 
 ent from what is required in reference 
 to other kinds of property that I do not 
 think this kind of property falls within 
 the reasons upon which the common- 
 law liability of common carriers was 
 fixed. In McManus v. Lancashire Rail. 
 Co., 2 H. & N. 702, the court say: 'We 
 are able to decide this case without re- 
 ferring to the second poiut made by the 
 defendants, viz., the alleged distinc- 
 tion 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 
 observation which fell from Baron 
 Parke, in Carr v. Lancashire & York 
 Rail. Co., ante, is entitled to much 
 consideration.' In the same case on 
 appeal in the Exchequer Chamber, 
 4 H. & N. 346, Earle, J., speaking 
 of the condition of the contract in that 
 case, says : ' This condition is imposed 
 in respect of horses. And I find 
 neither authority nor principle for 
 holding that defendants were bound to 
 receive living animals as common car- 
 riers.' In Palmer v. Grand Junction 
 Rail. Co., 4 M. & W. 758, Parke, B., 
 interrupting counsel, asks: 'Does the 
 rule as to negligence apply to live 
 
 animals, as horses ? Of course, if they 
 are stolen, it would ; but is it so when 
 they are delivered, although hurt or 
 damaged ? If misdelivered, the car- 
 rier would be liable ; but they would 
 not be liable for a mere accident to an 
 animal, supposing the carriage to be 
 safe and good and properly conducted.' 
 This case was decided in 1839, when 
 the question was comparatively a new 
 one. And it is quite manifest that 
 Baron Parke, in the above remarks, 
 had reference to the question as one 
 of common law merely ; and when be 
 comes to decide the case (on pp. 767, 
 768), holding that if the company 
 choose to carry (horses), and do not 
 take care to accept them with a limited 
 responsibility, then, by accepting them, 
 they must be held to have accepted as 
 common carriers, it is equally manifest 
 that the decision is rested wholly upon 
 the statute which he cites, expressly 
 enumerating ' cattle ' with ' other 
 goods, wares, and merchandise ar- 
 ticles, matters, and things,' which the 
 company were authorized to carry, 
 placing all apparently upon the same 
 ground. The conclusion from the 
 statute would seem to have been quite 
 as broad, at least, as the premises 
 would warrant. But it had the statute, 
 such as it was, to rest upon. It may, 
 however, well be doubted whether the 
 decision would have been the same if 
 the question had arisen for the first 
 time after the decision in Oxlade v. 
 Northwest Rail. Co., 15 C. B. n. s. 
 680, to be hereafter noticed, and that 
 of Pardingtou v. South Wales Co., 38 
 Eng. L. & Eq. 432, decided in No- 
 vember, 1856. In the latter case the 
 question arose upon the reasonableness 
 of a notice given by the company to a 
 shipper of cattle under 17 & 18 Vict. 
 
86 
 
 THE LAW OP CARRIERS. 
 
 representations which the carrier has made to the public are 
 invariably the guide to a proper decision as to the nature of his 
 
 c. 31, § 7 (Railway Traffic Act of 
 1854), which expressly held the com- 
 pany liable for the loss of, or injury 
 done to, 'any horses, cattle, or other 
 animals,' or to any goods, &c, unless 
 the conditions fixed by the notices, 
 &c, should be held by the court to be 
 just and reasonable. Mautin, B. (in- 
 terrupting counsel), says : ' The com- 
 mon-law liability of common carriers 
 does not apply to cattle at all. In 
 former days they were not carried. 
 They might therefore, but for the 
 statutes, make what conditions they 
 pleased.' Pollock, C. B., also says : 
 ' Why should they not say, " If you 
 insist upon our carrying your cattle, 
 we will carry them; but it must be 
 upon the terms that we shall not be 
 responsible for any injury which may 
 happen to them " ? They hold them- 
 selves out as carriers of horses and 
 cattle, sub modo.' The drovers went 
 with the cattle, as in the present case ; 
 and Martin, B., in giving his judg- 
 ment, says : ' I doubt the liability of 
 the company at all, even if there had 
 been no stipulation on their part ; for 
 the fault, if any, was the fault of those 
 who went by the train with the cattle.' 
 All the judges held the notice reason- 
 able. 
 
 " It will be noticed that in England, 
 by the statute cited, railroad companies 
 are common carriers of caltle, horses, 
 &c, and bound to carry as such, if in- 
 sisted upon by the shipper, except as 
 they may limit their liability by notices 
 or contracts which the court hold 
 reasonable. And that the statute 
 cited in Palmer v. Grand Junction Co., 
 4 M. & W. 758, was there held to 
 have the effect to make them common 
 carriers of such property, if they ac- 
 cepted it without conditions. (In that 
 
 case, however, there was no evidence 
 of their having held themselves out as 
 doing such business only on special 
 terms.) But this case has been fre- 
 quently cited in this country, as if it 
 had been made upon common-law rea- 
 sons only, and applied to cases where 
 there was no such statute as that upon 
 which it was clearly rested by the 
 court. Thus (without enumerating 
 other instances) in Kimball v. Rutland 
 Co., 26 Vt. 247, the court, after very 
 correctly holding that the company by 
 publicly offering to take cattle at one 
 price with the common-law Lability, 
 and at another and less rate when the 
 owner assumed the risk, thereby held 
 themselves out and became common 
 carriers of cattle, proceed to cite this 
 case of Palmer v. Grand Junction Co., 
 as proving the proposition that ' the 
 fact that the company have undertaken 
 such transportation for hire, and for 
 such persons as choose to employ them, 
 establishes their relation as common 
 carriers.' The remark was correct 
 enough, if applied to the facts of the 
 case before them ; but the language is 
 much broader than is warranted by the 
 case cited. 
 
 "Upon sound principle and upon 
 the English authorities above cited, I 
 think it clear the transportation of 
 cattle by railroad does not come within 
 the reasons of the law applicable to 
 common carriers, so far as relates to the 
 care of the property and responsibility 
 for its loss or injury. Unless, there- 
 fore, there be something in the defend- 
 ant's charter, or the act of consolida- 
 tion, or some other statute applicable 
 to the case (a question I shall hereafter 
 consider), the company were not bound 
 to receive or transport cattle or hogs, 
 as common carriers, but they might 
 
WHO ARE COMMON CARRIERS. 
 
 87 
 
 business. Thus, where a defendant company Was declared 
 against as common carriers for refusing to carry the plaintiff 
 
 legally refuse to carry them in that or 
 any other capacity. And having the 
 right to refuse altogether, they must 
 have the right to refuse, except upon 
 just such terms and conditions as 
 they saw fit to require. And these 
 conditions might, I think, be fixed by 
 special contract, or by notice, or by 
 their uniform course of doing that 
 branch of business. They might, if 
 they chose, undoubtedly assume the 
 position of common carriers of sucli 
 property ; and if they held themselves 
 oat to the public or the parties em- 
 ploying them as acting in that capacity, 
 and receiving and transporting such 
 property in that character, as they do 
 other property, they would be bound 
 as such, and would thereby naturally 
 assume the custody, care, and manage- 
 ment of the cattle from the time of 
 their delivery at the yard or depot for 
 transportation, the loading and unload- 
 ing, and certainly the feeding and 
 watering, when necessary, getting 
 them up when they get down in the 
 cars, and their protection from injuries 
 of that and the like kind. But to do 
 this would obviously require them to 
 provide yards or stables for them be- 
 fore put on board, with conveniences 
 for watering and feeding, and the 
 necessary supply of food there and at 
 other stations, or at least at the ter- 
 minus where they are unloaded (and 
 their safety might sometimes require 
 this to be done at stations along the 
 route), or they must provide some 
 mode, not yet invented, for feeding 
 and watering on the train. They 
 must employ a corps of men skilled 
 in the care and management of stock, 
 — a business quite foreign in its char- 
 acter from that of operating a railroad ; 
 and they must make many other pro- 
 
 visions to guard against injury and 
 risk which are not required for other 
 property generally transported by rail- 
 roads. Now we must shut our eyes 
 to what is notorious to all business 
 men, or we must take judicial notice, 
 as I think we are bound to do, that 
 this is not the mode, and such are not 
 the principles, upon which this great 
 and rapidly increasing business of 
 transporting live-stock to an Eastern 
 market is generally, if at all, done upon 
 the railroads of this State (if, in fact, 
 in any other of the Western States). 
 Naylor v. Mangles, 1 Esp. 109 ; Spear 
 v. Hartley, 3 Esp. 81; 3 Pars, on 
 Cont. 240 ; Sisson et al. v. C. & T. 
 R It, 14 Mich. 489. 
 
 " I think we are also bound to know 
 that if this business were done in this 
 mode and upon these principles, and 
 could be done in no other way, and 
 the railroads were to be held respon- 
 sible as insurers for all damages not 
 caused by the act of God or the 
 public enemies (which is strictly the 
 common-law liability), or by the vi- 
 ciousness of some particular animal or 
 animals in the mass (Walker v. Lon- 
 don Railroad, cited Angell on Car- 
 riers, § 214, note, which would be 
 a ludicrous distinction applied to a 
 carload of cattle), or for all such as 
 might be prevented by human agency 
 (Clarke v. Rochester R. R., 14 N. Y. 
 570), the railroad companies, to in- 
 demnify themselves against such risks 
 and the extraordinary expenses of this 
 mode of doing the business, must of 
 course demand a much higher freight; 
 and if they can be compelled to cany 
 at all in this way, they must provide 
 themselves with all the conveniences 
 I have mentioned, and keep on hand a 
 special corps of experienced stock men; 
 
88 
 
 THE LAW OP CARRIERS. 
 
 in their regular packet-boat, which was advertised to carry 
 passengers, on fixed terms, from Southampton to Gibraltar, 
 
 and being compelled to keep them, and 
 having gone to the expense of the 
 necessary conveniences, it would then 
 be for their interest to charge the 
 higher freight in all cases, and refuse 
 to carry upon any other terms ; and in 
 this manner those who would prefer to 
 take the care and risk upon them- 
 selves for a lower freight would be 
 deprived of the opportunity. 
 
 " The law of common carriers is 
 founded mainly upon considerations of 
 public policy ; and these considera- 
 tions, therefore, should not be over- 
 looked. On the other hand, if the 
 drover, with a sufficient force of his 
 own men experienced in the proper 
 management of the cattle, goes upon 
 the same train free of charge, in a 
 drover's car provided for that purpose, 
 and has the entire charge, care, and 
 management of the cattle, and the re- 
 sponsibility for the loss and injury in- 
 cident to that mode of transportation, 
 the company only furnishing the proper 
 cars and motive power, and being re- 
 sponsible only for their sufficiency and 
 the proper mode of making up and 
 running the train, it is manifest there 
 will be much less liability to injury or 
 loss, and that the companies can afford 
 to oarry the cattle at greatly reduced 
 rates. This undoubtedly is substantially 
 the mode in which this branch of busi- 
 ness is generally carried on upon the 
 railroads of this State, and probably 
 other Western States, so far as relates 
 to the transportation of cattle to an 
 Eastern market;- sometimes by special 
 contract setting forth the terms, as in 
 a bill of lading, receipt, or ticket, and 
 sometimes only by the uniform course 
 of business as adopted by the com- 
 pany and acted upon by their employ- 
 ers. But by reason of this diversity 
 
 the particular terms and conditions 
 upon which the business is actually 
 done, in a particular case, cannot be 
 judicially noticed without proof. 
 
 "It has been frequently held, and 
 seems to be well settled, that companies 
 incorporated under charters which sim- 
 ply permit, but do not require, them to 
 undertake the business of common car- 
 riers, become such, as to any particular 
 kind of property (though such as comes 
 within all the reasons of the law of 
 carriers), or as to any particular por- 
 tion of their route, only so far as they 
 hold themselves out as such to the 
 public, and are under no obligations to 
 carry otherwise, or other kinds of prop- 
 erty than they publicly profess to carry. 
 Oxlade v. Northwest Bail. Co., 15 
 C. B. n. s. 680 ; Johnson v. Midland 
 Rail. Co., 4 Exch. 367; Farmers' 
 & Mechanics' Bank v. Champlain 
 Transportation Co., 23 Vt. 186, 206 ; 
 2 Redf. on Railways, 116. This was 
 held in the first case above cited (de- 
 cided in 1864), as to the carriage of 
 coals, notwithstanding the Railway (and 
 Canal) Traffic Act of 1854, already 
 cited, which clearly made the railway 
 companies common carriers as to all 
 kinds of property, except as qualified 
 by notices or contracts which the court 
 should hold reasonable ; all special 
 contracts to be signed by the shipper, 
 &c. And if the defendants in the 
 present case were not bound, as com- 
 mon carriers, to receive cattle and 
 hogs for transportation, and they do 
 not come within the reasons of the law 
 of carriers as applied to other property, 
 then it must be very clear, under these 
 authorities, that they were not com- 
 mon carriers of this species of property, 
 unless, and only so far as, they pro- 
 fessed to be and held themselves out 
 
WHO ARE COMMON CAEEIERS. 
 
 upon the defendant's side it was denied that they were com- 
 mon carriers, but the jury decided that they were. A new 
 trial was moved for, and it was argued by the defendants that 
 extra-territorial carriers were not common carriers; but the 
 rule was refused on the ground that there was no substantial 
 difference between a carrier who carried within the realm, and 
 one who went from a place in the realm to a place beyond it. 1 
 
 as such. If they have only held 
 themselves out and professed to carry 
 cattle on the terms that the property 
 should be under the care and manage- 
 ment of the owner, or not under the care 
 of the company, the latter merely fur- 
 nishing proper cars and motive power, 
 and being responsible only forthe proper 
 making up and running of the trains, 
 this would not be holding themselves 
 out as common carriers. They would, 
 doubtless, be under the same obliga- 
 tions to furnish suitable cars and prop- 
 erly to make up and run the trains. And 
 the duties and obligations of the com- 
 pany in all matters not pertaining to 
 the care, management, and risk of the 
 stock, or to the mode of its reception 
 and delivery, would be the same as 
 those which attach to them in reference 
 to other property generally. And all 
 the provisions of the charter against 
 partiality in the order of receiving 
 and shipping property would probably 
 apply. 
 
 "These obligations might arise under 
 their charter from their holding them- 
 selves out and professing to transport 
 this kind of property on the same terms 
 for all persons alike who choose to em- 
 ploy them. But their professing to 
 take property for all persons applying, 
 upon the same terms, as to custody, 
 care, and risk, would not make them 
 common carriers in respect to such 
 custody, care, and risk, unless those 
 terms were the same as the law ap- 
 plicable to common carriers would have 
 fixed without such terms; for this 
 
 would be to hold that it would be in- 
 competent for the company to enter 
 into express contracts of the same kind 
 with all persons who should choose to 
 employ them, if such terms should 
 vary the common-law liability; in other 
 words, that while each contract would 
 be good by itself, all would be rendered 
 void by showing that all were alike in 
 these particulars." 
 
 1 Bennett v. Peninsular & Oriental 
 Steamboat Co., 6 C. B. 775 ; 18 L. J. 
 85, C. P. ; Johnson v. Midland Rail. 
 Co., 4 Bxch. 367 ; s. c. 18 Law J. 
 Rep. n. s. Exch. 366; Muschamp 
 v. Lancaster & Preston Rail. Co., 
 8 M. & W. 421 ; Scothorn v. South 
 Staffordshire Rail. Co., 8 Exch. 341 ; 
 22 L. J. n. s. Exch. 121 ; Parker v. 
 Great Western Rail. Co., 7 Man. & 
 G. 253; 13 L. J. jr. s. C. P. 105; 
 and per Aldekson, B., Johnson v. 
 Midland Rail. Co., supra; 2 Kent's 
 Com. 599, 600, 606, 608; Story on 
 Bailm. §§ 497, 501, and the cases 
 there cited; Richards v. Gilbert, 5 
 Day (Conn.), 415 ; Boyce v. Anderson, 
 2 Pet. (U. S.) 150 ; Clark v. Richards, 
 1 Conn. 54 ; Williams v. Grant, 1 Conn. 
 487 ; Bell v. Reed, 4 Biun. (Penn.) 
 127; Brown v. Clayton, 12 Ga. 564; 
 Emery v. Hersey, 4 Me. 407 ; M'Clures 
 v. Hammond, 1 Bay (S. C), 99 ; Har- 
 rington v. Lyles, 2 Nott & M'Cord 
 (S. C), 88 ; Hastings v. Pepper, 11 
 Pick. (Mass.) 41; Dwight v. Brewster, 
 1 Pick. (Mass.) 50 ; De Mott v. Larra- 
 way, 14 Wend. (N. Y.) 225 ; Crosby 
 v. Pitch, 12 Conn. 410. 
 
90 THE LAW OP CARRIERS. 
 
 This subject was, however, satisfactorily settled in a more 
 recent case. 1 In this case the plaintiff was a small parcel 
 collector and carrier. He employed agents in various towns, 
 and he forwarded the parcels with which he was intrusted in 
 London to his agents in the country, to be delivered to the 
 parties to whom they were addressed. Before railways were 
 introduced he had made use of wagons, or coaches, for the 
 purpose of forwarding his parcels, and when these modes of 
 conveyance ceased to exist, he had recourse to railways. In 
 the ordinary course of his business, the plaintiff took parcels 
 to the defendant company's stations to be forwarded by them 
 to the plaintiff's agents in Sheffield and Glasgow, and tendered 
 them the sum receivable and received by the company for 
 parcels of the weight of those brought to them by the plain- 
 tiff, and to be forwarded to the destination which was written 
 on the plaintiff's parcels. In consequence of certain orders 
 which had been extracted from the minutes of a meeting of 
 the company, the defendant's servants refused to receive and 
 book the parcels to the places named in the address, and said 
 that in the case of that which was addressed to Sheffield, it 
 would not go further than Rugby, and that which was ad- 
 dressed to Glasgow would not go further than Preston, at 
 which places the lines belonging to the defendant company 
 ended. It was, however, proved that the defendant company 
 had, by arrangement with other railway companies, been in 
 the habit of booking, and receiving, and carrying goods beyond 
 the limits of their own line to Sheffield and Glasgow, and of 
 receiving the price of the carriage for the whole distance. It 
 was also proved that the defendants had held themselves out 
 as carriers of goods through from London to Glasgow, at 
 certain rates which were to be found in their published tables. 
 Upon these facts it was decided that the defendants must be 
 regarded as common carriers for the whole distance. 2 
 
 1 Crouch v. London & North- in the absence of a special contract, is 
 western Bail. Co., 14 C. B. 255 ; only liable, as such, for the extent of 
 7 Bail. Cas. 717 ; 2 C. L. B. 188 ; 18 his own route, and for the safe storage 
 Jur.-148 ; 23 L. J. C. P. 73. and delivery to the next carrier. Mc- 
 
 2 In this country a common carrier, Millan v. Michigan Southern B. B. 
 
WHO ARE COMMON CARRIERS. 
 
 91 
 
 Jervis, C.J., said: "I think the defendants are liable on 
 the first count; that, holding themselves out as common 
 
 Co., 16 Mich. 79 ; Baltimore, &c. 
 R. R. Co. v. Schumaker, 29 Md. 176 ; 
 Jacobs v. Hooker, 1 Edm. Sel. Cas. 
 (N. Y.) 472 ; McDonald v. Western 
 R. R. Co., 34 N. Y. 497. The rule in 
 this respect is well stated in Lowell 
 Wire Fence Co. v. Sargent, 8 Allen 
 (Mass.), 189, to be that common car- 
 riers doing business between certain 
 points, and not undertaking personally 
 for their carriage to any further point, 
 but merely engaging to forward them 
 to their destination through the estab- 
 lished lines of transportation beyond, 
 are not liable, under their receipt for a 
 bill of goods " for collection " from a 
 person beyond the termination of their 
 route, in the absence of any special con- 
 tract creating an additional obligation, 
 for the failure of other carriers, to 
 whom in the ordinary course of their 
 business the bill was intrusted for col- 
 lection, to pay over the amount re- 
 ceived by them upon the same. See 
 also Darling v. Boston, &c. R. R. Co., 
 11 Allen (Mass.), 295; Crawford v. 
 Southern R. R. Association, 51 Miss. 
 222 ; Gray v. Jackson & Co., 51 N. H. 
 9 ; Nutting v. Connecticut River R. R. 
 Co., 1 Gray (Mass.), 502 ; Root v. 
 Great Western R R. Co., 45 N. Y. 
 524; Grindle v. Eastern Express Co., 
 67 Me. 317 ; Union, &c. R. R. Co. v. 
 Hart, 30 Ga. 798 ; Hunt v. New York, 
 &c. R. R. Co., 1 Hilt. (N. Y. C. P.) 
 228 ; Dillon v. New York, &c. R. R. 
 Co, 1 Hilt. (N. Y. C. P.) 231. In 
 Britnall v. Saratoga, &c. R. R. Co, 32 
 Vt. 665, a box of goods, marked and 
 directed to B. at Boston, was delivered 
 by B.'s agent, at Saratoga Springs, to 
 a railroad company, to be transported 
 over their road on its way to Boston. 
 The defendants gave a receipt therefor 
 in these words : " Received, Saratoga 
 
 Springs, September 17, 1855, from B, 
 in apparent good order, one box, to 
 forward to Castleton, for B, Boston, 
 
 Mass, at freight of per 100 lbs. 
 
 weight." It appeared that Castleton 
 was the terminus of their road toward 
 Boston, and that with the Rutland and 
 Washington Railroad, with which it 
 connected at Castleton, and other roads, 
 a line of railroad communication was 
 formed between Saratoga Springs and 
 Boston. It was held that the defend- 
 ants were only liable for the safe de- 
 livery of the box of goods at the end of 
 their own road in Castleton, and that 
 it was their duty there to deliver it 
 over to the railroad forming the next 
 link in the chain in the line to Boston ; 
 and that it was sufficient to establish, 
 prima facie, a right of recovery on the 
 part of B, in an action on the case 
 against the defendants, for negligence 
 as common carriers, for the loss of the 
 box of goods, to show its delivery to 
 them, and that it had not arrived at 
 Boston, and was lost. In Burroughs 
 v. Norwich, &c. R. R. Co, 100 Mass. 
 26, it appeared that by a contract 
 between the defendant company and 
 a steamboat company whose routes 
 formed a continuous line, it was pro- 
 vided that each should furnish on its 
 own route only connecting trains and 
 boats respectively for the transpor- 
 tation of passengers and merchandise 
 over the line at agreed rates of fare 
 or freight, the proceeds to be divided 
 between the contracting parties in an 
 agreed proportion ; and that " loss or 
 damage occasioned by injuries to per- 
 son or property on said line shall be 
 borne by the party having possession 
 of them at the time the injury was 
 done." It was held that a person who 
 delivered goods 'to one corporation, for 
 
92 
 
 •THE LAW OP CARRIERS. 
 
 carriers in England, and professing, as such, to carry from 
 London to Glasgow, they are liable for refusing to accept 
 
 transportation over the line to a point 
 on the line of the other corporation, 
 could not, by virtue of this contract, 
 hold the first corporation liable for loss 
 of the goods while on the route, and in 
 the possession of the second. Judson 
 v. Western R. R. Co., 4 Allen (Mass.), 
 520. The rule may be said to be that 
 where a carrier receives goods to trans- 
 port beyond the terminus of his route, 
 his responsibility ceases on a delivery 
 in good order to the next carrier in the 
 regular course of transportation. Mul- 
 larkey v. Baltimore, &c. R. R. Co., 9 
 Phila. (Penn.) 114. In Grindle v. 
 Eastern Express Co., ante, a person 
 having a policy of insurance on his life 
 delivered the premium thereon to de- 
 fendant, an express company, to be 
 forwarded.to a certain point and there 
 delivered to the agent of the insurance 
 company. The money was not so deliv- 
 ered, and the policy lapsed. The de- 
 fendant had knowledge of the purpose 
 for whicli the money was sent. It was 
 held that if the point of delivery was 
 beyond the defendant's line, it would, 
 in the absence of an agreement, express 
 or implied, to the contrary, be dis- 
 charged from liability by promptly de- 
 livering the money to the next carrier. 
 And this is the rule in nearly all the 
 States ; the English rule to the contrary, 
 being predicated upon the statute, has 
 no application at common law, and is 
 not recognized here. The fact that the 
 goods to be carried are marked to a 
 point beyond the terminus of the car- 
 rier's line does not import a contract to 
 deliver them at their place of destina- 
 tion; but, untler such circumstances, 
 the rule is, that, in the absence of any 
 special contract or circumstances, the 
 law will merely imply an undertaking 
 on the carrier's part to deliver them at 
 
 the end of his route to the next succeed- 
 ing carrier ; and if he does not so deliv- 
 er them or tender them, he is liable for 
 any injury happening to them while 
 in his custody; otherwise he is not. 
 Bawson v. Holland, 59 N. Y. 611 ; 17 
 Am. Rep. 394. In this case the de- 
 fendant was a common carrier of the 
 goods in question, from the city of New 
 York to Detroit, Michigan. It received 
 them at New York " to be forwarded 
 to Detroit only," and the express 
 terms of the undertaking exclude any 
 inference or implication that it was to 
 carry them farther. But Detroit was 
 not the final destination of the prop- 
 erty. The box was marked " Day & 
 Lathrop, Dryden, Michigan, via Bidg- 
 way," clearly indicating that Di-yden 
 was the ultimate destination, and that 
 the transit was by some agency to be 
 continued from Detroit via Bidgway, 
 to the place of consignment. The de- 
 fendant transported the goods to the 
 terminus of its line, and without de- 
 livering or tendering them to Ihe con- 
 necting road, stored them in its ware- 
 house, where they were subsequently 
 destroyed by fire. In an action for 
 the loss the company was held respon- 
 sible. 
 
 "The defendant," said Andrews, 
 J., " was not bound to carry the goods 
 beyond Detroit. It performed its con- 
 tract in respect to the actual carriage 
 upon carrying them to that place. But 
 the obligation of a carrier is not fully 
 discharged by transporting the goods 
 from the place of shipment to the place 
 of consignment, or, in case of an inter- 
 mediate carrier, from the place of ship- 
 ment to the end of his route. The 
 undertaking to transport the goods to a 
 particular place includes the duty of de- 
 livering them there in safety. De Mott 
 
WHO ARE COMMON CARRIERS. 
 
 93 
 
 goods to be carried from the one terminus to the other. It 
 is not denied now, although the authorities upon the subject 
 
 v. Larraway, 14 Wend. (N. Y.) 225. 
 What is due delivery depends upon 
 the nature of the carriage, whether 
 by ship, rail, or other conveyance, and 
 also upon the facts whether the carrier 
 in the particular case is an intermedi- 
 ate carrier, or is the one who transports 
 the goods to their final destination; 
 and their mode of delivery may, in 
 some cases, be controlled by custom 
 and usage. In all cases, however, 
 there must be a delivery by the car- 
 rier, or something tantamount to a 
 delivery, before he rids himself of his 
 responsibility as such. In the case of 
 an intermediate carrier, who accepts 
 goods to be carried to a point short of 
 their final destination, directed to a 
 place beyond the termination of his 
 route, the law from such direction, in 
 the absence of other special circum- 
 stance, implies an undertaking on his 
 part to deliver them, at the end of his 
 route, to the next succeeding carrier in 
 the line of transportation ; and if such 
 carrier refuses or neglects to receive 
 them, the first carrier may store the 
 goods, and then the nature of the bail- 
 ment changes, and he is relieved from 
 the stringent responsibility originally 
 assumed, and the liability of a ware- 
 houseman is substituted. Van Sant- 
 voord v. St. John, 6 Hill, 157; Gooldu. 
 Cliapin, 20 N. Y. 259 ; McDonald v. 
 Western R. R. Co., 34 N. Y. 497 ; 
 Root v. Great Western R. R. Co., 45 
 N. Y. 524 ; Mills v. Michigan Central 
 R. R. Co, 45 N. Y. 622; Nutting v. 
 Connecticut River R. R. Co., 1 Gray 
 (Mass.), 502. 
 
 " In this case the defendant did not, 
 on the arrival of the goods at Detroit, 
 offer them to any other carrier for 
 transportation beyond that point, or 
 give notice to any other carrier of 
 
 their arrival. They were deposited in 
 the defendant's warehouse; and re- 
 mained there for about twenty days, 
 when they were destroyed by an acci- 
 dental fire which happened without 
 fault or negligence of the defendant. 
 The failure to deliver to another car- 
 rier did not result from the fact that 
 there was no carrier on the route 
 designated by the direction, to whom 
 delivery could be made. The Grand 
 Trunk Railway Company operated a 
 line of railway from Detroit to Ridg- 
 way, a station on that road, and was 
 the customary and usual carrier to 
 Ridgway, of goods sent from Detroit 
 to Dryden via Ridgway, and, so far as 
 appears, there was no other public car- 
 rier between these places. 
 
 " The defendant, not having deliv- 
 ered or tendered the goods to the 
 Grand Trunk Railway, is, under the 
 general rule of law, liable for the loss, 
 and it must .be so adjudged unless the 
 case is taken out of the rule by the 
 special circumstances relied upon. 
 
 " There are, however, two grounds 
 upon which it is claimed that the de- 
 fendant was excused from delivering 
 the goods to the Grand Trunk Rail- 
 way : first, that by a regulation of that 
 company, of which the defendant had 
 notice, it would not remove goods for 
 transportation unless the shipper would 
 accept a receipt containing certain ex- 
 emptions from the liability imposed 
 upon carriers at common law ; and, 
 second, that by a custom of the defend- 
 ant, goods carried by its line to Detroit, 
 destined to points on the Grand Trunk 
 Railway, were detained until notice 
 was given to consignees, and their di- 
 rection taken as to sending them by 
 that road, and that such notice was 
 given in this case, and the goods were 
 
94 
 
 1 THE LAW OP CARRIERS. 
 
 are not numerous, that if a person holds himself out as a 
 common carrier from London to Oxford, both termini being 
 
 destroyed before any direction had 
 been given. We do not think that 
 -either of these answers is sufficient, 
 under the circumstances of this case, 
 to relieve the defendant from liability. 
 " The direction on the box was a 
 clear indication that Rawson, Buckley, 
 & Co., the shippers, designed that it 
 should be sent from Detroit to Dry- 
 den via Ridgway, and was, in effect, a 
 direction to the defendant to send them 
 by the usual mode of carriage from 
 Detroit to that point. The defendant 
 was entitled to regard the shippers as 
 authorized to direct as to the mode of 
 transportation, whatever their actual 
 relation to the goods may have been ; 
 whether, in fact, they or the consign- 
 ees were the owners. The direction 
 that the goods should be sent via 
 Eidgway, coupled with the fact that 
 the Grand Trunk Railway was the 
 usual carrier between Detroit and that 
 place, authorized the defendant to de- 
 liver the goods to that company, upon 
 the usual contract required, and in 
 case of loss after such delivery, and 
 while they were in possession of that 
 company, the defendant would not 
 have been liable, although the Grand 
 Trunk Railway under its contract 
 might have been exempted from lia- 
 bility also. Nelson v. Hudson River 
 R. R. Co., 48 N. Y. 507; Squire v. 
 New York Central R. R. Co., 98 Mass. 
 240 ; Barnett v. London & Northwest- 
 em Rail. Co., 5 H. & N. 604. 
 
 " There is nothing decided in the 
 case of Lamb v. Camden & Amboy R. 
 R. Co., 46 N. Y. 271 ; s. c. 7 Am. Rep. 
 327, which conflicts with this view. 
 In that case there was no indication 
 in the contract of the first carrier as 
 to the particular route or company by 
 which the goods were to be sent from 
 
 Chicago ; nor, so far as it appears, 
 was it necessary that the first carrier 
 should consent to a restricted liability 
 in order to procure the goods to be 
 carried from that point ; and as he had 
 guaranteed that they should be car- 
 ried to the final destination at a spe- 
 cified through rate, it perhaps might 
 justly be inferred that they were to be 
 carried from Chicago under a contract 
 as favorable as that made with the 
 first carrier. We, however, confine 
 our decision to the case presented on 
 this record, and are of opinion that the 
 defendant was not excused from ten- 
 dering the goods to the Grand Trunk 
 Railway, and that he would have been 
 justified in delivering them to that 
 road, and in accepting the usual con- 
 tract required by the company. 
 
 "The defence founded upon the 
 alleged custom is, we think, wholly 
 insufficient. The proof is that, up to 
 a short time before the shipment of 
 these goods, the Grand Trunk Railway 
 had not exacted of the defendant a 
 compliance with the general rule of 
 the company, but had received its 
 goods on the forms used by the de- 
 fendant. This had been changed in 
 1865 or 1866, and the regulation was 
 thereafter enforced as to goods received 
 from the defendant. The defendant, 
 from that time, was accustomed to de- 
 tain goods destined to points on the 
 Grand Trunk Railway, and advise the 
 consignees, and await their direction 
 before sending tbem forward, and in 
 this case written notice was sent to 
 ' Day & Lathrop ' of the arrival of 
 the goods, but they gave no instruc- 
 tions. 
 
 "It is said in Van Santvoord v. 
 St. John, 6 Hill (N. Y.), 160, that a 
 carrier who receives a box marked in 
 
WHO ARE COMMON CARRIERS. 
 
 95 
 
 within the realm, he is bound to carry, within reasonable 
 limits, all goods that may be tendered to him to be carried 
 
 a particular way, without any direc- 
 tions, except such as may be inferred 
 from the marks themselves, has a right 
 to presume that the consignor intends 
 that he shall transport and dispose of 
 them in the usual and customary way. 
 That was the case of a carrier by tow- 
 boats on the Hudson River, who re- 
 ceived a package marked 'J. Petrie, 
 Little Palls, Herkimer County,' and 
 it was held that the first carrier was 
 justified in delivering it at the end of 
 his route to a succeeding carrier by 
 canal, and was discharged thereby from 
 further responsibility, it being shown 
 that there was a general, established, 
 and uniform usage in the business, that 
 such delivery might be made ; and it 
 was also held that the consignor was 
 bound by it whether he knew it or not. 
 And in Gibson v. Culver, 17 Wend. 
 (N. Y.) 305, it was held that the gen- 
 eral obligation created by law in respect 
 to the mode of delivery by a carrier, 
 may be controlled by a uniform usage 
 and course of the business in which he 
 is engaged. In this case the proof 
 falls far short of establishing a custom 
 superseding the general obligation of 
 the defendant to make delivery of the 
 goods to the next carrier. At most it 
 was a usage recently established, and 
 confined to the particular business of 
 the defendant at a particular place, not 
 known to the plaintiffs, and which they 
 were not bound to ascertain. 
 
 " The usage relied upon in this case 
 lacks the essential elements of a valid 
 usage. It is neither general, estab- 
 lished, uniform, nor notorious. It 
 would be unreasonable to give it effect 
 in this case to defeat a recovery by the 
 plaintiff. The parties did not make 
 their contract in reference to it, and 
 cannot be presumed to have done so. 
 
 " It is the general rule, that a local 
 usage must be shown to have been 
 known to a party before he will be 
 held to be bound by it. Smith v. 
 Wright, 1 Cai. (N. Y.) 43 ; Stevens 
 v. Reeves, 9 Pick. (Mass.) 198 ; Krech- 
 ner v. Venus, 12 Moore's P. C. C. 
 361 ; Bartlett v. Pentland, 10 B. & C. 
 760 ; 1 Sm. L. Ca. 836 ; 2 Pars, on 
 Cont. 541, note. 
 
 "The conclusion is, that the de- 
 fendant, at the time of the fire, held 
 the goods as a common carrier, and is 
 responsible for the loss under the gen- 
 eral rules of law. If the exemption in 
 the bill of lading from liability for loss 
 by fire can be construed as applying 
 to the goods after the transit to Detroit 
 was ended, the delay in delivering them 
 to the Grand Trunk Railway was a 
 violation of duty which deprived the 
 defendant of the benefit of it. Michaels 
 v. New York Central R. R. Co., 30 
 N. Y. 564; Read v. Spaulding, 30 
 N. Y. 630; Maghee v. Camden & 
 Amboy R. R. Co., 45 N. Y. 514; 
 Condict v. Grand Trunk Rail. Co., 
 54 N. Y. 500." . 
 
 Where, however, the carrier, after 
 reaching the end of his route, does all 
 that can reasonably be expected of 
 him to have the succeeding carrier 
 take them, —as by giving notice to him 
 of the arrival of the goods and their 
 readiness for transshipment, — his lia- 
 bility as common carrier ceases, and he 
 becomes liable merely as warehouse- 
 man or as bailee, according to the cir- 
 cumstances. Thus in Goold v. Chapin, 
 10 Barb. (N. Y.) 612, the proprietors 
 of the Hudson River Line of tow-boats 
 received on board one of their barges, 
 in the city of New York, goods belong- 
 ing to persons in Brockport, to be by 
 them transported to Albany, and there 
 
96 
 
 THE LAW OP CARRIERS. 
 
 from London to Oxford. The only question on this part of 
 the case is, whether the rule applies where one of the termini 
 
 delivered to the agent of a company 
 for transporting goods on board the 
 canal, styled " The Atlantic Line." 
 The goods arrived safe at Albany on 
 Monday, August 14th, and were put 
 on board a float belonging to the own- 
 ers of the barge, kept by them in the 
 Albany basin, for the purpose of re- 
 ceiving goods brought by their barges, 
 and then transferring them to the canal 
 craft, which came alongside of the 
 float to receive their loading. On the 
 15th of August the agent of the At- 
 lantic Line was notified, on behalf of 
 the owners of the Hudson River Line, 
 that there were goods on their float 
 for his line, and he was requested to 
 take them away. On the next day the 
 like notification and request was made 
 to him, and again repeated on the 17th 
 of August, when the agent said he 
 was taking some goods from another 
 line, and when he got them on he 
 would shove up and take those goods 
 from the float ; but on the same after- 
 noon the float with the goods iu ques- 
 tion was consumed by lire. Held, 
 1. That the float in,the basin was not, 
 in any proper or legal sense of the 
 term, a warehouse. 2. That placing 
 the goods upon this float was merely 
 shifting them from one vessel of the 
 carriers to another; and that it was 
 clearly no delivery to the consignees, 
 "The Atlantic Line." 3. ! That, had 
 the carriers placed the goods in a ware- 
 house at Albany, that being the place 
 of delivery, so far as they were con- 
 cerned, their liability as carriers would 
 have been entirely discharged. 4. That 
 by placing the goods in either of their 
 own two warehouses, which it ap- 
 peared from the evidence that they 
 had at Albany, and giving notice to 
 the consignees, their undertaking and 
 
 duties as carriers would have entirely 
 terminated, and those of warehouse- 
 men commenced. 5. That, inasmuch 
 as they elected to retain possession of 
 the goods after notice, without de- 
 positing them in a warehouse, they 
 were not entirely discharged from their 
 liability. 6. That after the repeated 
 notices given by them to the agent of 
 the Atlantic Line of the arrival of the 
 goods, with requests that he would take 
 them away, their liability as insurers 
 did not continue until the destruction 
 of the goods; that, under the circum- 
 stances, their strict liability as common 
 carriers had ceased at the time of the 
 fire, and that they were then holding 
 the goods as bailees in deposit merely ; 
 and the goods having been destroyed 
 without any fault on their part, that 
 they were not liable. 
 
 In Alabama (Mobile, &c. R. R. Co. 
 v. Copeland, 63 Ala. 625 ; 35 Am. 
 Rep. 13) the English doctrine, as laid 
 down in Muschamp v. Railway Co., 
 8 M. & W. 421, was adopted, to wit, 
 that unless the carrier expressly limits 
 his liability to his own route, he is 
 liable for the delivery of goods at their 
 place of destination. And such also 
 seems to be the rule in Illinois. Erie 
 R. R. Co. v. Wilcox, 84 111. 239 ; 25 
 Am. Rep. 451. See also Bradford v. 
 Railroad Co., 7 Rich. (S. C.) 201; 
 Carter v. Peck, 4 Sneed (Tenu.), 203. 
 But the language of the judge in the 
 last-named case favoring the English 
 rule is mere dicta ; and the doctrine 
 is now settled in Tennessee in accord- 
 ance with the current of American 
 cases. Nashville, &c. R. R. Co. v. 
 Spraybury, 8 Baxt. (Tenn.) 341 ; 35 
 Am. Rep. 705. 
 
 The reasons given by the court in 
 the Alabama case, cited ante, for adopt- 
 
WHO AEE COMMON CARRIERS. 
 
 97 
 
 is a place out of England ; and I think it does. If a person 
 holds himself out as a common carrier, accepts goods, the lav 
 
 ing the English rule in relation to con- 
 necting carriers are much stronger 
 against than in favor of the rule, and 
 the opinions of the judges in Mus- 
 champ v. Railway Co., ante, do not 
 evince that degree of logical reasoning 
 which the questions in the case seemed 
 to demand ; and while it may be quite 
 proper for legal writers to entertain 
 different views upon the expediency or 
 wisdom of the rule, yet the great cur- 
 rent of authority upon a legal question 
 in the courts of the country is decisive 
 as to the rule, and affords a strong 
 argument in favor of its expediency 
 and wisdom. In Hadd v. United 
 States and Canada Express Co., 52 Vt. 
 335, 36 Am. Rep. 757, the rule appli- 
 cable to carriers of general freight was 
 applied to express companies. In that 
 case the plaintiff intrusted to the de- 
 fendant, an express company, a par- 
 cel addressed to a point beyond the 
 termination of its route. The defend- 
 ant's agent told the plaintiff that the 
 defendant could not bill beyond its 
 own route, but at his request received 
 the charges through, and delivered to 
 the plaintiff a receipt limiting its lia- 
 bility to its own route. The plaintiff 
 being unable to read, the defendant's 
 agent read the receipt to him, omitting 
 the limitation clause. The defendant 
 carried the parcel to the termination 
 of its own route, and delivered it to 
 the connecting carrier, by whom it 
 was lost. It was held that the de- 
 fendant was not liable for the loss. 
 " It has been repeatedly decided," said 
 Vbaset, J., " in the American courts 
 that, in theabsence of a special contract, 
 common carriers, including express 
 companies, receiving parcels marked to 
 a point beyond their own route, and hav- 
 ing no special business relations with 
 
 other carriers, are only responsible as 
 common carriers to the endof their own 
 route, and the safe and seasonable de- 
 livery to the succeeding carrier in the 
 direction of transportation. Nutting 
 «. Connecticut R. R. Co., 1 Gray 
 (Mass.), 502 ; Root v. Great Western 
 R. R. Co., 45 N. Y. 524 ; Railroad 
 Co. v. Manufacturing Co., 16 Wall. 
 (U. S.) 318 ; Morse v. Brainerd, 41 
 Vt. 550; Stewart v. Terre Haute, 
 &e. R. R. Co. (U. S. C. C.) 10 Re- 
 porter, 618 ; Railroad Co. v. Berry, 
 68 Penn. St. 272; Converse v. Trans- 
 portation Co., 33 Conn. 166 ; Farmers' & 
 Mechanics' Bank v. Champlain Trans- 
 portation Co., 23 "Vt. 209 ; Phillips v. 
 Railroad Co., 78 N. C. 294 ; Hoag- 
 land v. Railroad Co., 39 Mo. 451 ; 
 Packard v. Taylor, 35 Ark. 402 ; 37 
 Am. Rep. 37 ; Gray v. Jackson, 51 
 N. H. 9 ; Elmore v. Naugatuck R. R. 
 Co., 23 Conn. 457 ; Irish v. Railroad 
 Co., 19 Minn. 376 ; Crawford v. Rail- 
 road Association, 51 Miss. 222. In 
 Lawrence v. New York, &c. R. R. Co., 
 36 Conn. 63, the defendants were com- 
 mon carriers of passengers and freight 
 by railroad from Providence, R. I., to 
 Groton, Conn., connecting at Provi- 
 dence with a railroad from Boston and 
 at Groton with steamboats for New 
 York, the three having formed for sev- 
 eral years, under a common arrange- 
 ment, a through line for passengers 
 and freight from Boston to- New York. 
 The line had a standing advertisement 
 in a Boston newspaper that cars would 
 leave the station there at half-past five 
 p. m., every week-day, connecting on 
 three days named with the steamboat 
 Commonwealth, and on the alternate 
 days with the steamboat Plymouth 
 Rock, for New York, and that through 
 tickets were furnished and baggage 
 
98 
 
 THE LAW OF CARRIERS. 
 
 of England — that is, the law founded on the custom of the 
 realm — engrafts on such an acceptance a contract to take 
 
 checked through to sundry places be- 
 yond New York. The defendants, 
 also, by hand-bills and placards, ad- 
 vertised those two boats as running 
 between Groton and New York in con- 
 nection with their railroad. The plain- 
 tiffs, who had for a long time been in 
 the habit of sending freight by the 
 line, shipped a quantity of goods by it 
 at Boston for New York, on the 28th 
 day of December, taking bills of lading 
 signed by an agent of all the com- 
 panies forming the line, by which it 
 was provided that the companies 
 should not be liable for any injury to 
 freight in the course of transportation 
 arising from accidental delays, and 
 that no package of goods if lost should 
 be deemed of greater value than $200, 
 unless specially receipted for at a 
 greater valuation. The plaintiffs pro- 
 cured the bills of lading printed, and 
 kept them in blank, to be filled up by 
 themselves as needed. The steamboat 
 Plymouth Rock, which was the regu- 
 lar boat for December 28th, had been 
 taken off for necessary repairs, and the 
 Commodore — a much smaller boat, 
 belonging to the same owners, and 
 which they were accustomed to put on 
 in the place of either of the regular 
 boats when taken off for repairs — 
 was running in her place. By reason 
 of her small capacity a large quantity 
 of freight, which came by railroad from 
 Boston on the evening of the 28th of 
 December, including a part of the 
 goods of the plaintiffs, and which 
 the Plymouth Bock would have been 
 able to take, could not be carried, 
 and had to be discharged, as was the 
 custom in such cases, into the depot of 
 the defendants at Groton to wait for 
 the boat of the next day, and during the 
 night was destroyed by fire, with 
 
 the depot. In a suit brought by the 
 plaintiffs for the value of the goods 
 lost, in which the jury returned a ver- 
 dict for the plaintiffs for the full value 
 of the goods, without reference to the 
 limitation in the bills of lading, it was 
 held, on a motion of the defendants for 
 a new trial, 1. That the advertisement 
 was obviously published for the infor- 
 mation of passengers, and not of 
 freighters, and that therefore the court 
 below erred in instructing the jury 
 that, in determining whether there was 
 a contract on the part of the defend- 
 ants that the Plymouth Bock should 
 be the boat for the night in question, 
 they should particularly consider the 
 advertisement. 2. That there was 
 nothing in the representation of the 
 defendants as to the boats regularly 
 running in connection with their road 
 that 'constituted a binding stipulation 
 that one of the boats should not be 
 taken off for necessary and usual re- 
 pairs and another temporarily substi- 
 tuted for it. 3. That on the arrival of 
 the goods at Groton the defendants 
 were bound to forward by the boat of 
 that evening only so much of the freight 
 as the boat could take, and were not 
 responsible for the delay of the rest. 
 4. That all that could be required of 
 them was to take reasonable care of 
 the goods left over until they should 
 be taken by the boat of the next day. 
 It is well settled, however, that a car- 
 rier may bind himself by contract to 
 carry goods beyond the terminus of 
 his own line, and when he does so he 
 remains liable therefor as a common 
 carrier until the goods have reached 
 their destination, although they are in 
 fact lost while being transported by an 
 intermediate carrier. Morse v. Brai- 
 nerd, 41 Vt. 550; Stewart v. Mer- 
 
WHO ARE COMMON CARRIERS. 
 
 99 
 
 and safely carry the goods, and to deliver them as an insurer, 
 with certain exceptions, viz., the acts of God and the king's 
 
 The plaintiffs delivered to the de- 
 fendants shipping bills as follows : — 
 
 " Shipped, Lewiston, &c, one qr.- 
 cask brandy, marked Israel Kellogg, 
 Kalamazoo, &e." 
 
 " Shipped, Lewiston, &e., 1 qr.-cask 
 brandy, marked McCrea & Morton, 
 Battle Creek, Mich., &c." 
 
 The brandy was lost on the lake 
 between Buffalo and Detroit. Held, 
 that the receipt did not contain any 
 implied agreement to transport the 
 brandy to Kalamazoo or Battle Creek, 
 the address being only incorporated 
 in the instrument for the purpose of 
 identification ; and that this construc- 
 tion of the contract was further forti-. 
 fled by the use of the word " marked " 
 in the shipping bills. Where a rail- 
 road company have contracted to trans- 
 port goods to the terminus of their 
 road, the burden of proof that the 
 goods were carried there and delivered 
 or tendered for delivery is upon the 
 company. Schroeder v. Hudson River 
 R. R. Co., 5 Duer (N. Y.) , 5 5 There 
 is another ground upon which the first 
 carrier may be made liable as a com- 
 mon carrier after they have been trans- 
 ported to the end of his route and 
 delivered to another carrier, and that 
 is where he, in violation of the orders 
 of the shipper to send them by a cer- 
 tain route or carrier, sends them in a 
 different manner, or by another and 
 different route. Thus, if goods are 
 shipped from Boston to Chicago, and 
 the shipper marks " Via B. & A. and 
 N. Y. Central R R. Co.," and the B. & 
 A. Company, at the terminus of its route, 
 delivers them to D. & H. Railroad, by 
 whom they are lost, the B. & A. Com- 
 pany, by delivering the goods to the 
 D. & H. Company, violates its duty, 
 and remains an insurer until the goods 
 are delivered to the consignee. The 
 
 chants' Despatch Transportation Co., 
 47 Iowa, 229. And the question as to 
 whether such an agreement existed has 
 been held to be a question of fact for 
 the jury. Gray v. Jackson, 51 N. H. 9. 
 A contract of this character may be 
 implied from the language of the re- 
 ceipt or bill of lading. Thus, in Kyle 
 v. Laurens R. R. Co., 10 Rich. (S. C.) 
 L. 382, the defendant gave receipts for 
 cotton "to be delivered on presentation 
 of this receipt, at Charleston." The 
 cotton passed over the Laurens Rail- 
 road, and was delivered to another 
 road for transportation to Charleston, 
 but was lost. Held, that the company 
 was liable, the undertaking being spe- 
 cial, — to carry to Charleston. But 
 in Wright v. Boughton, 22 Barb. 
 (N. Y.) 561, the defendants, who were 
 common carriers between Lewiston 
 and Niagara Falls, received from the 
 plaintiffs two casks of brandy at the 
 former place, to be forwarded to dif- 
 ferent points on the Miohigan Central 
 Railroad. Goods destined for such 
 points were in the usual course of the 
 business shipped at Buffalo for Detroit; 
 and this usage, as well as the fact that 
 the defendants had no interest in or 
 connection with any of the carrying 
 business or companies beyond the falls, 
 was known to the plaintiffs. The de- 
 fendants gave a receipt at follows : — 
 " Received, Lewiston, &c., the fol- 
 lowing packages of goods on board the 
 L. & B. R. Line, in good order, to be 
 delivered in like good condition : — ■ 
 Israel Kellogg, ") 
 
 Kalamazoo, Mich. > 1 qr.-cask brandy. 
 M. C. R. R. ) 
 
 Also for 
 McCrea & Morton, -j 
 Battle Creek, Mieh. > 1 qr.-cask brandy. 
 M. C. R. R. ) 
 
 R. H. Boughton." 
 
100 
 
 THE LAW OP CARRIERS. 
 
 enemies. It was admitted during the argument, and could 
 not be denied, that if the defendants had accepted the goods 
 in London, the common law would have engrafted on their 
 contract an obligation to carry them to Glasgow, subject to 
 the liability I have mentioned. 1 Then, if it is admitted that 
 
 same is also true where the goods are 
 marked " Via N. Y. Central R. R. Co. 
 and steamer Mary Ann from Buffalo to 
 Chicago," and the first carrier, instead 
 of following the shipper's directions, 
 sends the goods by another railroad 
 from Buffalo to Chicago. Johnson v. 
 New York Central R. R. Co., 33 
 N. Y. 610. So, where a carrier con- 
 tracts to carry goods to their place of 
 destination in vehicles controlled or 
 owned by it, without transferor break- 
 ing bulk, if, upon reaching the terminus 
 of its route, it unloads the goods and 
 places them in its warehouse, and they 
 are destroyed by fire, he will be liable 
 for their loss, although there is an ex- 
 press provision in the bill of lading 
 stipulating that he shall not be liable 
 for the destruction of the goods by 
 fire, because by unlading them he has 
 violated his contract, and the provisions 
 relative to exemption from liability do 
 not apply while the goods are in his 
 warehouse contrary to the contract of 
 shipment. Stewart v. Merchants' De- 
 spatch Co., 47 Iowa, 229. But if 
 transportation is obstructed by the 
 act of God, — as if the goods are to be 
 carried by water, and the river or lake 
 freezes up before the goods can be got 
 to their destination, and in consequence 
 thereof they are deposited in his ware- 
 house, and burned while there, without 
 his fault, — lie cannot be held liahle 
 therefor. Clark v. Needles, 25 Penn. 
 St. 338. 
 
 1 See the case of Morse v. Slue, 
 Raym. 220 ; 1 Vent. 190. The rule is 
 otherwise in this country ; and while a 
 common carrier is bound to accept and 
 
 carry goods, although marked and des- 
 tined for a point beyond the terminus 
 of his line (Elmore v. Naugatuck R. R. 
 Co., 23 Conn. 471), yet he is not 
 bound to accept them in the capacity 
 of common carrier for any portion of 
 the distance beyond his line, and if he 
 does not contract expressly or by ne- 
 cessary inference to deliver the goods at 
 their place of destination, he is treated 
 as only assuming liability as a common 
 carrier to the end of his own route ; in 
 other words, he is treated as merely con- 
 tracting to safely carry the goods over 
 his own route, and to seasonably and 
 safely deliver them to the next carrier, 
 when his liability ends. Detroit, &c. 
 R. R. Co. o. McKenzie, 43 Mich. 609 ; 
 Stewart v. Terre Haute, &c. R. R. Co., 
 1 McCrary (U. S. C. C), 312; Clyde 
 v. Hubbard, 88 Penn. St. 358 ; Graver 
 & Baker Sewing Machine Company v. 
 Missouri Pacific R. R. Co., 70 Mo. 
 672 ; 35 Am. Rep. 444. And where 
 an express contract is made by an 
 agent to transport goods beyond the 
 terminus of the carrier's line, it is not 
 binding upon the principal, unless he 
 was expressly authorized to make such 
 a contract, or unless such authority 
 may reasonably be inferred from previ- 
 ous dealings, or the company has held 
 itself out as a carrier to such points. 
 Grover & Baker Sewing Machine Com- 
 pany v Pacific, &c. R. R. Co., ante. 
 In this case it appeared that the de- 
 fendant's roads ran from Kansas City, 
 to St. Louis, which at Sedalia, Mo., 
 connected with the Missouri, &c, Rail- 
 road, which ran from that point be- 
 yond Clinton, which was the shipping 
 
WHO ABE COMMON CARRIERS. 
 
 101 
 
 when once they have held themselves out as common carriers, 
 there is engrafted on their acceptance of the goods the corn- 
 
 point on the road for Osceola, Mo. 
 Neither of the railroads was shown to 
 be a common carrier to Osceola, which 
 was twenty-seven miles distant from 
 Clinton. One Lee was admitted to 
 have been the defendant's freight agent 
 at Kansas City, and had general au- 
 thority to act as such at that point, 
 but the rules of the company did not 
 permit him to enter into any con- 
 tract for the transportation of freight 
 beyond the terminus of the defendant's 
 line "of railroad without special per- 
 mission from defendant's general freight 
 agent at St. Louis. It was expressly 
 agreed that said Lee was the freight 
 agent of defendant at Kansas City, and 
 by his duly authorized clerk, Leonard, 
 executed and delivered to plaintiff the 
 following receipt: — 
 
 Kansas City, Mo., March 7, 1872. 
 
 Received of Grover & Baker Sew- 
 ing Machine Company, in good order, 
 by Missouri Pacific Railroad Com- 
 pany, to be delivered in like good 
 order unto James M. Thompson, Os- 
 ceola, Missouri. 
 
 Marks. Articles. Weight. 
 
 J. M. Thompson, box and frame 100 lbs. 
 
 Osceola, Mo. containing one 
 sewing-machine. 
 
 • (Signed) J. M. Lee, Agent, L. 
 
 " The box and crate containing the 
 machine reached the town of Clinton, 
 and there the crate containing the ma- 
 chine-frame and a certain box were 
 delivered to Jacob Blinckenhoff, to be 
 delivered to said Thompson at Osceola. 
 Upon the delivery of said box to said 
 Thompson, it proved to be a box 
 containing leather and shoe-findings, 
 shipped to him from St. Louis, and 
 the machinery of said sewing-machine 
 was never delivered to said Thompson 
 
 or to plaintiff. The receipt sued on 
 Was furnished, filled out, and presented 
 to said clerk of Lee by plaintiff for 
 signature. It was not shown that 
 plaintiff had ever before shipped over 
 said road sewing-machines, or other 
 goods to be delivered at Osceola, or 
 that the defendant had ever held itself 
 out as carrier of goods to that point. 
 On this state of facts, was the plaintiff 
 entitled to recover ? 
 
 " That a railroad may, by contract, 
 subject itself to the obligation of a com- 
 mon carrier beyond its own line, is well 
 settled by the weight of authority; 
 but, as was said in Railroad v. Pratt, 
 22 Wall. (U. S.) 124, the result of 
 American authorities limits the car- 
 rier's liability as such to his own line, 
 when no special contract is made. In 
 Perkins v. P. S. & P. R. R. Co., 47 
 Me. 593, it was held that ' a railroad 
 may be bound by special contract, but 
 not otherwise, to transport persons or 
 property beyond the line of its own 
 road.' This remark was criticised in 
 Look Company v. Railroad. 48 N. H. 
 355 ; s. c. 22 Am. Rep. 342, in which 
 we think it was shown ' that the term 
 "express contract" could hardly have 
 been used in its strict sense, to signify 
 a contract in the form of a direct 
 promise or undertaking, in language, 
 oral or written, proper to show a posi- 
 tive agreement, since the judge who 
 delivered the opinion of the court 
 speaks of a case where the carriers 
 would be liable on the ground that 
 they held themselves out as common 
 carriers to that place, in which case 
 (remarks the judge in the New Hamp- 
 shire case), as I understand it, the 
 contract would not be express in the 
 strict or usual sense of the term, but 
 implied from the conduct of the party.' 
 
102 
 
 THE LAW OP CARRIERS. 
 
 mon-law liability to carry, even if they are to carry beyond 
 the realm, it would seem also that they were subject to the 
 
 Taking tlie criticism as just, the doc- 
 trine may be stated that ai'ailroad com- 
 pany may be bound by contract, ex- 
 press or implied, but not otherwise, to 
 transport persons or property beyond 
 the line of its own road. As thus de- 
 clared, it is fully sustained by the au- 
 thorities, both in the United States 
 and England. 
 
 " The vital question, therefore, in the 
 case is whether the defendant's freight 
 agent at Kansas City had authority to 
 make the contract sued on; and in this 
 case that is to be determined by ascer- 
 taining whether or not the power to 
 make the contract was within the gen- 
 eral scope of the agent's apparent 
 authority. If it was, then, although 
 the regulations of, the company for- 
 bade him from making such a contract, 
 unless plaintiff was aware of such 
 regulations, the company is bound. 
 Here the agent was forbidden to make 
 such contracts; but there is no evi- 
 dence tending to show that plaintiff 
 was informed of such regulations. The 
 whole question then depends upon the 
 character of Lee's agency, whether it 
 was general or special. 
 
 " There is a marked distinction be- 
 tween special and general agents, with 
 respect to the authority to bind the 
 principal. The principal is bound by 
 the act of the general agent, though 
 such acts are in violation of the agent's 
 instructions ; while the principal is not 
 bound by the unauthorized acts of a 
 special agent. Story on Agency, 
 § 1720. Smith, in his Mercantile 
 Law, page 59, thus states the doctrine : 
 'The authority of a general agent to 
 perform all things usual in the line of 
 business in which he is employed, can- 
 not be limited by any private order or 
 directions not known to the party deal- 
 
 ing with him.' The agreed statement 
 does not show that Lee was a general 
 freight agent of defendant, but is only 
 to the effect that the testimony would 
 show that the contract sued on was 
 executed by Lee, then the freight 
 agent of defendant's road at Kansas 
 City; and the testimony of Lee was that 
 he was then freight agent of defendant 
 at Kansas City, that he had general au- 
 thority to act as defendant's freight agent 
 at that point, but that the rules and regu- 
 lations of the company did not permit 
 him to enter into any contract for the 
 transportation of freight beyond the 
 terminus of defendant's road without 
 special permission from the defendant's 
 general freight agent at St. Louis, and 
 that he did not have at that time such 
 special permission. In Wait v. Al- 
 bany & Susquelianna R. It. Co., 5 
 Lans. (N. Y.) 477, the court held that, 
 'strictly speaking, the business of a 
 carrier, such as defendant, is confined 
 to its own line, and the general scope 
 of its subordinate agents' authority 
 must be limited to its business.' Some 
 of the eases deny even to a general 
 agent authority to bind the company 
 by a contract, to transport goods be- 
 yond its own line, unless expressly 
 authorized to do so. But the doctrine 
 announced by Sutherland, J., in Iris 
 dissenting opinion in the case of Burtis 
 v. Buffalo & State Line ft. R. Co., 24 
 N. Y. 274, we think the better doctrine, 
 viz., that, if defendant had the power 
 to make or to authorize the making of 
 such contract, then the person acting 
 as the general freight agent should be 
 deemed to have been clothed with all 
 the power to make contracts for freight, 
 or in respect to the carrying and de- 
 livery of freight, that the principal had. 
 But here hpre was no proof whatever 
 
WHO ARE COMMON CARRIERS. 
 
 103 
 
 other part of the common-law liability, namely, to accept, 
 within reasonable limits, all goods that may be tendered to 
 
 that Lee was the defendant's general 
 freight agent. The evidence for plain- 
 tiff only proved him a station agent ; 
 and Lee's testimony was that he was 
 subordinate to a general freight agent 
 at St. Louis, and by that agent was 
 expressly forbidden to make such a 
 contract. No course of dealing be- 
 tween plaintiff and the company's 
 agent at Kansas City was shown from 
 which the authority of the agent to 
 make the contract might be inferred. 
 It was not shown that the company 
 had held itself out as a carrier of goods 
 between Kansas City and Osceola. 
 The naked question is presented, 
 whether a local freight agent can 
 make a contract for the company not 
 only unauthorized, but expressly for- 
 bidden, for the transportation of goods 
 beyond its line. We think that the 
 company is not bound by such a con- 
 tract made by the agent. In Railroad 
 Company ». Pratt, supra, there was 
 evidence that Graves, the station agent, 
 had authority to make the contract, 
 and that for five years he had been the 
 company's agent at Pottsdam, and that 
 the plaintiff had been in the habit of 
 transporting horses over the defend- 
 ant's railroad to Boston, — a point 
 neither a terminus nor on the line of 
 the road. The court held that 'the 
 power in a railroad corporation to 
 make contracts to carry beyond its 
 line is coincident with the power to 
 make contracts for transportation 
 with other carriers, and is confined to 
 the governing officer of the corpora- 
 tion, and that its subordinate agents 
 do not possess that power unless it has 
 been expressly conferred upon them, or 
 has been so exercised by those who 
 exercise the general authority as to 
 have become the established business 
 of the road.' 
 
 " In Burroughs v. Norwich & Wor- 
 cester R. R. Co., 100 Mass. 26 ; s. c. 
 1 Am. Rep. 78, the plaintiffs relied 
 upon a receipt signed and delivered to 
 them by the defendant's station agent 
 at North Oxford, by the terms of 
 which the defendant ' promised to for- 
 ward and deliver the goods to the or- 
 der of Trumbull, Slade, & Co., New 
 York.' The station agent had been 
 accustomed to give to the plaintiffs 
 precisely similar receipts for goods de- 
 livered by them to the defendant at 
 North Oxford to be transported ; but 
 the blank forms of these receipts were 
 furnished by plaintiffs themselves, and 
 the officers of the defendant corpora- 
 tion did not know that such receipts 
 were given by the station agent ; and 
 receipts supplied by those officers to 
 the station agent, and which they were 
 accustomed to fill up and deliver when 
 requested, for goods to be transported 
 to New York, were of a different form, 
 stipulating that the goods should be 
 transported by defendant to New Lon- 
 don, and thence by steamboat of the 
 Norwich & New York Transportation 
 Co. to New York, and that in case loss 
 or damage should be incurred, the 
 company should be responsible there- 
 for in whose actual custody the goods 
 might be when such loss or damage 
 occurred. The station agent at North 
 Oxford was the proper person to re- 
 ceive and sign receipts for goods de- 
 livered at that station, bnt had no 
 other authority to sign and deliver to 
 plaintiff the receipt relied upon than 
 was to be implied from the above facts. 
 The court held that these facts were 
 'clearly insufficient to warrant a court 
 or jury in inferring that he had au- 
 thority to bind defendant as common 
 carriers beyond the line of their own 
 railroad.' That case is directly in 
 
104 
 
 THE LAW OP CARRIERS. 
 
 them to carry. If, therefore, being carriers within the realm, 
 they are bound to take the goods offered to them to be car- 
 ried within the realm, it follows, that if they profess to be 
 carriers beyond the realm, being themselves, at the time they 
 so profess, within the realm, they are bound to accept and to 
 carry goods beyond the realm upon the terms on which they 
 profess to contract." 1 
 
 Sec. 52. Liability for Servants. — As a carrier cannot avoid 
 the responsibility of his position, merely because of the accident 
 that the destination' of the goods with which he is intrusted is 
 out of the realm, so long as he has held himself out to the pub- 
 
 poiut ; but it is not necessary for this 
 corn't to adopt so stringent a rule as was 
 there announced, in order to determine 
 against plaintiff the question of the 
 authority of the agent Lee to make the 
 contract relied upon in this case. 
 There were several facts .there from 
 which authority in the agent might 
 have been inferred, that are not in this 
 case, which only presents, as before 
 stated, the naked question whether or 
 not, the defendant is bound by such a 
 contract as Lee signed for the com- 
 pany withoiit express authority to do 
 so, and against the explicit, directions 
 to the contrary from his superior 
 officer, the general freight agent, there 
 having been no previous dealings be- 
 tween the plaintiff and the company 
 from which the plaintiff might reason- 
 ably have inferred such authority, and 
 the company not having held itself out 
 as a common carrier to a point beyond 
 its line of road. On such a state of 
 facts, there can be no doubt that the 
 company is not liable on the contract 
 made by the agent. The court below, 
 by its first instruction for the plaintiff, 
 left it for the jury on the above facts to 
 determine whether the agent Lee had 
 authority to make the contract with the 
 plaintiff ornot. It should have declared, 
 as a matter of law, that on the facts 
 
 the plaintiff could not recover, or have 
 given the second instruction asked by 
 the defendant, — that the contract sued 
 on as a contract of the defendant to 
 carry to the town of Osceola is void." 
 The first carrier must seasonably de- 
 liver the goods to the next carrier, 
 and until it, has notified the next car- 
 rier that the freight is ready, and left 
 it at the place where such freight is 
 usually delivered to it, it remains liable 
 as a carrier therefor. Thus, in Ken- 
 tucky, &c. Ins. Co. ». Western, &c. 
 R. B, Co., 8 Baxt. (Tenn.), 2G8, cot- 
 ton was brought over the defendant's 
 road, and left uncovered on a flat car 
 for three hours, without notice to the 
 connecting carrier that it was ready 
 for delivery, aud it was burned. It 
 was shown that a freight train passed 
 the car upon which the goods were 
 loaded, and that there was a custom 
 that there was no delivery until the 
 freight was hauled to the transfer 
 platform of the receiving company and 
 examined, &c. It was held that the 
 defendant was liable for the loss, and 
 that the plaintiff, who had paid the 
 consignee the insurance thereon, was 
 entitled to recover the value of the 
 property. 
 1 23 L. J. C. P., at p. 80. 
 
WHO ABE COMMON CARRIERS. 105 
 
 lie as a carrier to that place, so it is equally certain that he can- 
 not avoid the responsibility which devolves upon him, by the 
 accident that some person employed by him does his work, so 
 long as he holds himself out to the public as a carrier through, 
 or by means of, this servant or agent. 1 The public has a right 
 to rely upon an employer of labor who holds himself out or 
 professes to do a certain thing, and that reliance or confidence 
 is the same, in point of law, whether it is felt with regard to 
 the skill of an individual to do a thing himself, or to employ 
 others to do it for him. It is evidently the same thing in 
 principle whether a man professes to carry luggage by a cer- 
 tain vehicle — quoad which mode of carriage he is a common 
 carrier — or professes to carry luggage by means of the 
 agency of his servants. In the latter case he is a common 
 carrier as much as in the former, provided he does it as a 
 public servant, ready to undertake the commission of any one 
 who hires him. This has been affirmed by statute. 
 
 Sec. 53. Carriers' Act, Section a — An act for the protec- 
 tion of common carriers, passed in the reign of George IV., 2 sets 
 forth that " nothing in the act shall be deemed to protect any 
 mail contractor, stage-coach proprietor, and other common car- 
 rier for hire, from liability to answer for loss or injury to any 
 goods or articles arising from the felonious acts of any coach- 
 man, guard, book-keeper, porter, or other servant in his or their 
 employ, nor to protect any such coachman, guard, book-keeper, 
 or other servant from liability for any loss or injury occa- 
 sioned by his or their own personal neglect or misconduct." 
 And this is but the confirmation of the common-law rule. 
 
 Sec. 54. The Reason of Liability. — But in order to charge 
 a master with such liability in consequence of the wrong done 
 
 1 Cavenagh v. Such, 1 Price, 328 ; Law, Pothier, Pand. Lib. 19, tit. 2, 
 
 Williams v. Cranston, 2 Stark. 82; n. 31; Dig. Lib. 19, tit. 2, 1. 11; 
 
 Middleton v. Powler, 1 Salk. 282; Grover & Baker Sewing Machine 
 
 Hyde v. Trent & Mersey Navigation Company v. Pacific, &c. R. R. Co., 
 
 Co., 5 T. R. 397; Ellis v. Turner, ante. 
 
 8 T. R. 531; Boyce v. Chapman, 2 11 Geo. IV and 1 Will. IV c. 68, 
 
 2 Bing. N. C. 222. See also 2 Bell § 8. In this country a common car- 
 
 Com. pp. 455, 465, 471 ; Story on rier is as liable for the felonious as for 
 
 Bailm. §§ 507, 550; and for Roman the negligent acts of his servants. 
 
106 THE LAW OF CARRIERS. 
 
 by his servant, it is of importance to ascertain who are a 
 man's servants, and also the extent and scope of his authority 
 as derived from the nature of his employment, or from the 
 express authority conferred upon him. Any person who is 
 employed by a common carrier is not necessarily authorized 
 by such employment to carry goods. If a man engages a ser- 
 vant to wait at table he does not give him authority thereby 
 to drive a coach. And should such a man undertake such 
 a work without his master's knowledge, and should loss or 
 injury to goods result therefrom, it seems certain that the 
 owners would have no claim against the employer of this 
 house servant, although he was a common carrier. The rea- 
 son why a man is held liable for the injury arising from the 
 felonious acts of his servants is, that he has chosen those ser- 
 vants ; and if he has chosen those who were untrustworthy, 
 while he held himself out to the public, by the very fact of his 
 business and employment, as capable of choosing those that 
 were trustworthy, he must suffer for it. But a common car- 
 rier does not hold himself out to the public, by any act or 
 constructive advertisement, as capable of choosing house ser- 
 vants ; and as the house servant, in driving the coach, was 
 acting without the consent, and contrary to the implied com- 
 mand, which was a part of the contract for his service, it 
 would be absurd to regard the master as in any way respon- 
 sible for his misfeasance. If, however, such a common carrier 
 employs a servant, whether it be under the name of sub-con- 
 tractor or agent, to do any part of the work which he as 
 carrier has undertaken to perform, that person is a servant 
 within the meaning of the act. 1 It is evident that wherever 
 the contract to carry exists, where it is implied on the one 
 side by the regular occupation of the party, -and expressed on 
 the other by his trusting his property to the professional car- 
 rier, the same liability will arise whether this transaction 
 
 1 Machu v. London & Southwest- 5 B. & C. 547 ; 4 L. J. K. B. 309 
 
 era Bail. Co., 2 Excli. 415 ; 5 Bail. Quarman v. Burnett, 6 M. & W. 499 
 
 Cas. 302 ; 12 Jur. 501 ; 17 L. J. Rapson v. Cubitt, 11 L. J. Exch. 271 
 
 Exch. 271. See also Pickard v. Sears, Milligan v. Wedge, 12 Ad. & El. 737 
 
 6 Ad. & El. 469 ; Laugher v. Pointer, 10 L. J. Q. B. 19. 
 
WHO ARE COMMON CARRIERS. 107 
 
 takes place between principals or agents ; or, to use the words 
 of Lord Denman, C. J., " A carrier receiving goods undertakes 
 to carry them to the party whose address is upon them ; the 
 fact of their coming to him through a series of agents does 
 not prevent him being liable to the sender. He cannot throw 
 back the liability upon the earliest agent." 1 In this case the 
 plaintiff sent a parcel directed to a person in London, to the 
 postmaster of Bradford (Wilts), to be forwarded to Milksham. 
 The postmaster received twopence to book the parcel, and 
 sent it by a mail-cart to the " King's Arms " Inn, at Milks- 
 ham. He was in the habit of taking in parcels for the mail- 
 cart. The innkeeper at Milksham booked the parcel for Lon- 
 don, and charged twopence for so doing, and also charging 
 on the parcel the demand for carriage from Bradford, which 
 he had paid. The innkeeper used to receive parcels to be 
 forwarded by the mails and other coaches, but he had no 
 authority from the mail-coach proprietors to book, nor had he 
 ever been applied to by them to receive parcels. He used 
 his own discretion in sending on parcels which were sent to 
 him. He sometimes sent them by the mail, and sometimes 
 by other coaches. Several coaches used to call at the " King's 
 Arms ; " for two years and a half the mail -had been accus- 
 tomed to pull up there, but not to change horses. There was 
 no regular booking-office at the " King's Arms." The plain- 
 tiff's parcel was delivered by the innkeeper to the coachman 
 of the London mail, and it was lost. On these facts it was 
 held that the carrier employed by the Bradford postmaster 
 was' the agent of the plaintiff, and that the innkeeper at Milks- 
 ham was the servant of the defendants, the proprietors of the 
 mail-coach, and that therefore the plaintiff was entitled to 
 recover damages from him for the loss of the parcel. 2 In 
 another case, where the plaintiff was the publisher of prints 
 in London, and had an agent at Bristol, named Leese, who 
 wished to send certain prints by van to the plaintiff in Lon- 
 don, the question as to what constituted a man a servant or 
 
 1 Syms v. Chaplin, 1 N. & P. 129 ; a Cavenagh v. Such, 1 Price, 328 ; 
 5 Ad. & El. 634 ; 2 H. & W. 411. Brind v. Dale, 2 M. & Rob. 80 ; 8 C. 
 
 & P. 207. 
 
108 THE LAW OP CARRIERS. 
 
 agent for a particular purpose was considered. It appeared 
 that the defendants in this action were the proprietors of a 
 van which carried goods from Bristol to London, and that 
 Mr. Leese, the plaintiff's Bristol agent, went to their booking- 
 office in that town, and desired that the box containing the 
 prints should be sent for. This request was complied with, 
 and a porter, belonging to the defendants' booking-office, took 
 it from Mr. Leese's house to the office. It was proved that 
 the box had arrived in London, and had been placed in the 
 print-room of the plaintiff, where, upon being opened, it was 
 found that the prints had got wet, and were damaged to the 
 amount of 136?. It was further proved, by a clerk of the 
 plaintiff, that when the box was delivered the carriage was 
 charged 12s. 6d., and on the plaintiff objecting, the porter, 
 who brought the box, replied that, being pictures, it required 
 more care. In this case it was held that the box was deliv- 
 ered at the defendants' booking-office, as for the purpose of 
 taking it there the plaintiff's agent made the defendants' ser- 
 vant his servant. In this action the defendants were held 
 liable for the injury done to the prints. 1 When the fact of 
 employment for the purpose of conveyance has been satisfac- 
 torily proved, difficulty may still arise with reference to the 
 misfeasance of the servant. A mere suspicion that the loss 
 arose from the felony of the servant will not make the 
 common carrier liable — the felony must be proved. 2 With 
 regard to what proof is necessary in such circumstances, an- 
 other case may be alluded to. A parcel was delivered to a 
 porter of the Great Western Railway Company at their sta- 
 tion, to be forwarded from Gloucester to London, after the 
 way-bill and the guard's parcel-book had been made up. The 
 parcel was placed by the porter in the usual receptacle, a 
 locked box, in the luggage van, and entered by him on the 
 way-bill, but the fact of his having so placed it was not com- 
 municated to the guard. After several stoppages between 
 Gloucester and London, the train reached its ultimate destina- 
 
 1 Williams v. Cranston, 2 Stark. a Great Western Rail. Co. v. Bi- 
 82 ; Powles v. Iiidev, 6 El. & Bl. 207 ; mell, 27 L. J. C. P. 201. 
 2 Jur. k. s. 472 ; 25 L. J. Q: B. 331. 
 
WHO ARE COMMON CARRIERS. 109 
 
 tion,' when the parcel was missed. On these facts it was held 
 that there was no evidence for the jury that the parcel had 
 been stolen by a servant of the company. 1 On the other hand, 
 in a case tried in Ireland, a more positive decision was arrived 
 at. 2 In this case the plaintiff sued the defendants for the loss 
 of a travelling case containing watches, which he was carrying 
 with him as personal luggage. The company pleaded that 
 the plaintiff had not made the requisite declaration as to the 
 contents of the parcel, to which the plaintiff replied that the 
 loss was occasioned by the felony of the servant of the com- 
 pany. It appeared at the trial that the case had been lost on 
 a part of the journey, that the plaintiff had been prevented by 
 a servant of the company from carrying the case in the same 
 carriage with himself, on the pretence that the luggage van 
 was the proper place for its conveyance. It was proved that 
 the interference of the servant was no part of his duty, that 
 the case was not afterwards -forthcoming, and that the said 
 servant denied all knowledge of the transaction. The jury 
 found that a felony had been committed, and it was held that 
 there was sufficient evidence to go to the jury of a felonious 
 taking of the goods. 3 
 
 Sec. 55. Effect of Contract with Servant of Carrier. — While 
 the doctrine that the master common-carrier is liable for the 
 defalcations of his servants whenever it can be proved that a 
 real contract to carry for hire has been entered into between 
 him, or some one authorized by him, and the owner of the 
 goods is firmly established, it is equally certain that if any 
 owner chooses to send parcels by the driver of a wagon, or a 
 stage-coach, by a ferryman, or the master of a steamboat, and 
 pays him for so doing, which remuneration is the personal gain 
 of the driver, wagoner, or ferryman, and does not reach their 
 employers, such employers are not liable in case the parcels thus 
 sent are lost or injured.* A common carrier undertakes the 
 
 1 Great Western Bail. Co. v. Bi- 8 See also Metcalfe v. London, 
 mell, 18 C. B. 575 ; Boyce v. Chap- Brighton, & South Coast Bail. Co., 
 man, 2 Bing. N. C. 222 ; 2 Scott, 4 C. B. s. s. 307 ; 27 L. J. C. P. 205. 
 365 ; 1 Hodges, 338. * Butler v. Basing, 2 C. & P. 613. 
 
 2 Keys v. Belfast Bail. Co., 8 Ir. Where the conductor of a freight train 
 C. L. B. 167, C. P. promised that he would stop at a cer. 
 
110 THE LAW OP CARRIERS. 
 
 trade with a knowledge of its duties and liabilities for the 
 sake of gain ; and if the profits do not reach him, he is not, in 
 fairness, to be held liable for loss or injury should it occur. 
 A servant is his servant for the purposes of his trade, that he 
 may make money by means of him, and not that his employee 
 may make money on his own account while he has the respon- 
 sibility for his negligence or faults. 
 
 Sec. 56. The Rule of Law as to Partner Carriers. — That 
 the same rule should apply to the case of partners as applies 
 to master and servant, or principal and agent, in so far as the 
 law of carriers is involved, will not be disputed. Thus, where 
 three men are in partnership, and drive coaches, of which they 
 are the proprietors, from one place to another, and undertake 
 the conveyance of goods, and where, through the misfeasance 
 or malfeasance of one of the three, the goods of a bailor are 
 lost, that the three should be held liable to make good the 
 loss, is a doctrine deducible from the principles which have 
 guided the determination of all those cases which have arisen 
 in regard to this question. The sender of the goods intrusted 
 them to the carriers upon the strength of the confidence he 
 had in the acknowledged partnership. It would be unjust 
 
 tain point where there was no station, property at intermediate points ; and if 
 or freight agent, and take on goods of an agent in their employ receives 
 the plaintiff if they were left there, property at an intermediate point, his 
 and accordingly the goods were left right so to receive it is a proper sub- 
 there, but the conductor did not stop ject of inquiry in an action against, his 
 for them, and they were destroyed, it principals, because the agent failed to 
 was held that the defendant was not deliver property so received, and it is 
 liable therefor, because the conductor erroneous not to admit evidence upon 
 had no authority, real or apparent, to that point. An advertisement, by 
 bind him by any such agreement, common carriers, that a faithful spe- 
 Wells v. Wilmington, &c. R. R. Qo., cial messenger is sent in charge of 
 6 Jones (N. C ), L. 47. The obliga- each express, is no evidence of any 
 tion of a common carrier does not authority of such messenger to engage 
 arise out of contract in the usual sense • for, or receive, freight. Whether or 
 of that expression, but it is declared not an agent has authority to do cer- 
 by law, and his responsibilities are tain acts for which it is sought to 
 fixed by considerations of public charge the common carrier, must be 
 policy. Where common carriers set proved, and is a question of fact for 
 up to carry certain kinds of property the jury. Thurman v. Wells, 18 Barb, 
 from one given point to another, they (N. Y.) 500 ; Blanchard v. Isaacs, 3 
 cannot be compelled to receive such Barb. (N. Y.) 388. 
 
WHO AEE COMMON CAKRIERS. Ill 
 
 that he should suffer in any way for the confidence which was 
 warranted by the ordinary experience of mankind. In con- 
 formity with this principle, it has been enacted that " any one 
 or more of mail contractors, stage-coach proprietors, or com- 
 mon carriers may be sued by his, her, or their name or names 
 only ; and no action or suit for damages for loss or injury to 
 any parcel, package, or person shall abate for the want of 
 joining any co-proprietor or co-partner." 1 In the case of 
 Watland v. Elkins, 2 it appeared that the defendant and one 
 Dyson were carriers from London to Gosport, and that, by an 
 arrangement between them, Dyson horsed the wagon from 
 London to Parnham, and the defendant then conducted it 
 from Farnham to Gosport, and that at the time the mischief 
 happened in consequence of which the action was brought, the 
 wagon was drawn by Dyson's horses, and was driven by one 
 of Dyson's servants, who had been hired by, and had received 
 wages from, Dyson, and with whose employment the defend- 
 ant had no concern whatsoever, but that the wagon itself was 
 the property of the defendant. The defendant was, however, 
 held to be liable, notwithstanding this, division of the concern 
 between them, for the damage done, and responsible for the 
 misconduct and negligence of the servant who had been hired 
 by his partner, who, according to Gibbs, C. J., might, " for 
 inferior purposes, and as between the parties, be considered 
 as the servant of Dyson, still he was, for all legal purposes, 
 the servant of Elkins." 3 
 
 Sec. 57. Scope of Trade, how determined. — The rule 
 which determines who are common carriers also serves to 
 determine the scope of their trade. It is allowable for a man 
 to carry one kind of goods and not another ; but if he has been 
 accustomed to carry all kinds of goods, toe cannot, by his own 
 
 1 11 Geo- IV. and 1 Will. IV. o. 68, 8 As to who are partners in the 
 § 5 ; Ansell v. Waterhouse, 2 Chit. 1 ; business of carriers, see Eromont v. 
 6 M. & S. 385. See Powell v. Lay- Coupland, 9 Moore, 319 ; 2 Bing. 
 ton, 2 B. & P. 365. 170 ; 1 C. & P 275 ; Helsby v. 
 
 2 Watland v. Elkins, 1 Stark. 272 ; Mears, 8 D. & R. 289 ; 5 B. & C. 
 s. c. Weyland v. Elkins, Holt, 227. 505; Wooley v. Batte, 2C. & P. 417. 
 See Barton o. Hanson, 2 Taunt. 49 ; But see Merry weather v. Nixan, 8 
 Smith v. Taylor, 2 Chit. 142. T. B. 186. 
 
112 THE LAW OF CARRIERS. 
 
 free will, limit his duty to one particular class of articles, or 
 limit his liability to a responsibility for these only. But if an 
 article is brought to him which he has been in the habit of 
 carrying, he is bound in law to accept the duty. But in many 
 cases this rule would fall short of the actual requirements of 
 the circumstances. We must be aware of the daily practice 
 which exists amongst shipmasters and agents of receiving and 
 transporting certain kinds of goods which have never before 
 been shipped, and which may previously have been unknown. 
 It would be absurd to argue that in such a case the carriers 
 are relieved of their common-law liability as insurers, and 
 become liable for loss or damage only in case of a want of 
 ordinary care or diligence upon their own part, or upon that 
 of one of their servants. In such a case the rule would 
 evidently be too narrow ; and, under such circumstances, it 
 seems the best opinion that courts of law will have regard 
 rather to the kind or class of goods which the carriers have 
 been in the habit of conveying than to the specific description 
 of the articles. Thus the owner of a passage boat carrying 
 light freight would not ordinarily be answerable for a cargo 
 of coal or of marble, taken on board by the master, although 
 he had been in the habit of carrying small pieces or specimens 
 of either for hire, 1 because the carriage of goods of that class 
 is not in accordance with the usage of his business ; 2 but if a 
 usage to carry that class of goods is once established, then 
 liability therefor as a common carrier attaches. 3 
 
 Sec. 58. Passengers' Luggage. — There is a wide distinction 
 between contracts for the conveyance of passengers and those 
 for the conveyance of goods. In the latter case the parties 
 are liable at all events, except the goods are destroyed by the 
 act of God or the king's enemies ; whilst in the former, they 
 are only responsible to their passengers in cases of express 
 
 1 Sewall v. Allen, 6 Wend. (N. Y.) 2 Powell v. Mills, 30 Miss. 231 ; 
 
 346. And see King v. Lenox, Tunnell v. Pettijohn, 2 Harr. (Del.) 
 
 19 Johns. (N.Y.) 235; Tunnell v. 48. 
 
 Pettijohn, 2 Harr. (Del.) 48. See 8 Beckman v. Shouse, 5 Eawle 
 
 also Story on Bailm. § 501, p. 458, (Penn.), 179; Kemp v. Coughtry, 11 
 
 &c, 8th ed. John. (N. Y.) 107- 
 
WHO ARE COMMON CARRIERS. 
 
 113 
 
 negligence. 1 This being the case, and there being evident 
 reasons why it should be so, it became a question whether the 
 
 1 Parke, J., Crofts v. Waterhouse, 
 11 Moore, at p. 138; cf. Sorett v. 
 Hobbs, 2 Show. 428. See also Stokes 
 v. Saltonstall, 13 Pet. (U.S.) 181; 
 The New World v. King, 16 How. 
 (U. S.) 469. A carrier of passengers 
 is required to use the utmost human 
 care and foresight, and he is held re- 
 sponsible for the slightest negligence. 
 Maverick v. Eighth Ave. R. R. Co., 
 
 36 N. Y. 378; Johnson v. Winona, 
 &c. R. R. Co., 11 Minn. 296 ; Der- 
 wort v. Loomer, 21 Conn. 245 : Mc- 
 Clenaghan v. Brock, 5 Rich. (S. C.) 
 17 ; Southern, &c. R. R. Co. v. Ken- 
 drick, 40 Miss. 374; Jeffersonville, 
 &c. R. R. Co. v. Hendrick, 26 Ind. 
 228 ; Prink v. Potter, 17 111. 406 ; 
 Huelsenkamp v. Citizens' R. R. Co., 
 
 37 Md. 534 ; Redhead v. Midland Rail. 
 Co , L. R. 2 Q. B. 412 ; Sayles v. 
 Western Stage Co., 4 Iowa, 547. 
 But this rule does not require the 
 exercise of the greatest precautions of 
 which the human mind is susceptible, 
 but requires the use of the highest 
 degree of practicable care and dili- 
 gence under the circumstances of the 
 case. Puller v. Talbot, 23 111. 357. 
 It is not required that he should exer- 
 cise such precaution as it is apparent 
 after an accident might have pre- 
 vented the injury, but the utmost care 
 of a cautious person, in view of the 
 consequences, without knowledge that 
 the accident might occur. Bowen v. 
 New York Central R. R. Co., 18 N. Y. 
 408 ; Ingalls v. Bills, 9 Met. (Mass.) 
 1 ; Parrish v. Reigli, 11 Gratt. (Va.) 
 697; McKinney v. Niel, 1 McLean 
 (D. S. C. C), 540 ; M'Lane v. Sharp, 
 2 Harr. (Del.) 431 ; Edwards v. Lord, 
 49 Me. 279; Wheaton v. North 
 Beach, &c. R. R. Co., 36 Cal. 590 ; 
 Stockton v. Pray, 4 Gill (Md.), 405 ; 
 
 Prink «. Coe, 4 Greene (Iowa), 555 ; 
 Lockhart v. Lichtenthaler, 46 Penn. 
 St. 151. Por injuries resulting from 
 patent defects in its vehicles or other 
 appliances used in the carriage of pas- 
 sengers, or from defects which might 
 have been discovered by the exercise 
 of reasonable diligence,, it is responsi- 
 ble, but not for injuries resulting from 
 latent defects, or those which could 
 not be discovered by the exercise of 
 the degree of care demanded by the 
 circumstances. Mier v. Pennsylvania 
 R. R. Co., 64 Penu. St. 225. Thus, 
 in Ingalls v. Bills, 9 Met. (Mass.) 1, 
 it was held that a passenger on a stage- 
 coach who was injured solely by rea- 
 son of the breakiug of an iron axle in 
 which there was only a very small flaw, 
 which was entirely surrounded by 
 sound iron one fourth of an inch thick, 
 and which could not be discovered by 
 the most careful examination, could 
 not recover for the injury; and the 
 same doctrine was held in Mier v. 
 Pennsylvania R. R. Co., ante, where 
 the injury resulted from the breaking 
 of the axle of a railroad car under 
 similar circumstances. There is, of 
 course, a wide distinction between car- 
 riers of passengers upon public high- 
 ways and carriers of passengers by 
 rail, as in the former case the carrier 
 cannot justly be held responsible for 
 the safe condition of the road, while 
 in the latter instance the carrier is not 
 only responsible for the safe condition 
 of the vehicles and engines, but also 
 of the roadway itself, as he has both 
 under his sole care and control. The 
 rule is, that a railroad company is 
 bound to so construct its roadway and 
 track as to avoid such dangers as 
 could have been reasonably foreseen 
 by the exercise of that degree of care 
 
 8 
 
114 
 
 THE LAW OF CARRIERS. 
 
 usual baggage taken by passengers when they travel in stage- 
 coaches, railway trains, steamboats, and the like, should be 
 
 and skill which is demanded in view 
 of the results likely to ensue in ease 
 of a failure to exercise it, and this ex- 
 tends to the protection of its road-bed 
 from the ordinary rainfalls or freshets 
 incident to the section of country 
 through which it is located. In 
 ■Railroad Co. v. Halloran, 53 Tex. 46, 
 by a sudden and extraordinarily heavy 
 rainfall, about dark, confined to a lim- 
 ited locality, a portion of a railroad 
 bed was so undermined that it gave 
 way under the weight of a train three 
 or four hours afterwards, and the 
 plaintiff was injured thereby. It ap- 
 peared that the road-bed was in a safe 
 condition before the rainfall, and that 
 a train had passed over it safely two 
 hours before the accident, and that the 
 track and road-bed had been inspected 
 between the passage of that train and 
 the time of the accident, and that at 
 that time the track was in an appar- 
 ently safe condition, and at the time 
 of the accident the road was appar- 
 ently safe. It was held that there 
 could be' no recovery for the injury. 
 "If," says Bonner, J., referring to 
 an accident resulting from the sudden 
 washing away of a road-bed by an ex- 
 traordinary flood, " an accident should 
 happen from such cause on a road-bed 
 and track which had been properly 
 constructed and kept in good repair, 
 when the agents and employees in 
 charge of the train were in the exer- 
 cise of that degree of caution and pru- 
 dence necessary at all times, and when 
 they did not have, from information 
 conveyed to them, or from their 
 own personal observation, reasonable 
 grounds to anticipate impending dan- 
 ger, and consequently ,did not use 
 such extraordinary precautions as 
 might have otherwise averted it, then 
 
 the law characterizes it as an act of 
 God, or inevitable accident as is inci- 
 dent to all human works, and which 
 would relieve the company from lia- 
 bility. In Great Western Rail. Co. v. 
 Braid, 1 Moore's P. C. n. s. 101, 
 the accident occurred in Canada. An 
 embankment was carried away by an 
 extraordinary storm; the accident 
 occurred at about two o'clock, a. h. ; 
 loaded trains had safely passed be- 
 tween eleven and twelve o'clock of the 
 same night, and at ten minutes past 
 one of the same morning ; all appeared 
 safe then, and there was nothing to 
 attract attention ; but the flood after- 
 ward made a gap of forty-five yards. 
 Prom six o'clock of the preceding 
 evening there had been an excessively 
 heavy rain. The road had beeu used 
 four years without accident, and was 
 inspected daily. A verdict was found 
 for the plaintiff. This was affirmed. 
 Lord Chelmsford said : " The rail- 
 way company ought to have con- 
 structed their works in such a manner 
 as to be capable of resisting all the 
 violence of weather which in the cli- 
 mate of Canada might be expected, 
 though perhaps rarely, to occur. . . . 
 In the whole of the evidence there is 
 nothing more proved than that the 
 night was one of unusual severity, but 
 there is no proof that nothing similar 
 had been experienced before, nor is 
 there anything to lead to the conclu- 
 sion that it was at all improbable that 
 such a storm might at any time occur. 
 It must also be borne in mind that 
 although the embankment had stood 
 firm for five years, and had possibly 
 not been exposed to any storm of equal 
 violence to that before which it gave 
 way, yet it was evidently not con- 
 structed, or at least not maintained, in 
 
WHO ARE COMMON CARRIERS. 
 
 115 
 
 regarded as in the custody of the proprietors of these convey- 
 ances, in such a way as to make them liable as common car- 
 riers in case of their loss or damage. Common carriers not 
 being insurers of the safety of the passengers they carry, are 
 they to be regarded as insurers of the luggage which these 
 passengers take with them ? Formerly it was held that the 
 proprietors of conveyances which carried passengers were not 
 responsible as common carriers for the baggage of passengers 
 unless a distinct price were paid for it. 1 Now, however, it 
 is held that, as the custody of the luggage is an accessary 
 to the principal contract, those persons who carry the lug- 
 gage of passengers should be regarded as liable at law 
 as common carriers. There can be no injustice in such a 
 doctrine, as it is in the power of all carriers to charge such 
 
 a manner to resist any unusual pres- 
 sure. ... It is evident that the em- 
 bankment was insufficiently provided 
 with means of resisting the storm, 
 which though of unusual violence was 
 not of such a character as might not 
 reasonably have been anticipated, and 
 which therefore ought to have been 
 provided against by all reasonable and 
 prudent precautions." But where due 
 precautions have been taken, and for 
 several years the road-bed has resisted 
 the ordinary floods and freshets inci- 
 dent to the locality, this circumstance 
 furnishes strong evidence exonerating 
 the company from the charge of. neg- 
 ligence. In Withers i>. North Kent 
 Rail. Co., 27 L. J. Exch. 417, there 
 was evidence that the embankment 
 ran through a country subject to 
 floods, and had been constructed five 
 years, of sandy soil, with insufficient 
 culverts ; that an extraordinary fall of 
 rain of sixteen hours had caused a 
 flood which had washed away the soil, 
 leaving the sleepers unsupported ; but 
 there was no evidence that anything 
 had been seen on the line to indicate 
 danger. The plaintiff had a verdict. 
 
 Held, that there could be no recovery. 
 Pollock, C. B., said: "The line had 
 lasted five years in a country subject 
 to floods, and it does not appear that 
 there had been any accident or ob- 
 jection to its construction until this 
 extraordinary flood occurred. The 
 company was not bound to have a line 
 constructed so as to meet such ex- 
 traordinary floods." Martin, B., 
 said : " If the line had nevertheless 
 lasted five years, that tends to show 
 that there was no reason to apprehend 
 danger from ordinary floods, and they 
 were not to provide for extraordinary." 
 Bbamwell, B., said : " It is Con- 
 tended, on the part of the plaintiff, 
 that the company's servants were 
 bound to know the consequences 
 which were likely to follow from the 
 flood. That is not so. Tliey were 
 hound to know only that which could be 
 known by the exercise of ordinary skill 
 and prudence." See also Brehm v. 
 Great Western Bail. Co., 34 Barb. 
 (N. Y.) 256. 
 
 1 Middleton v. Fowler, 1 Salk. 
 282 ; Upshare v. Aidee, 1 Comyns, 
 25 ; Wolf v. Summers, 2 Camp. 631. 
 
116 THE LAW OP CARRIERS. 
 
 a rate as will compensate them for the risk which they run. 1 
 Cases in which this question has been raised have come 
 before our courts. In one of these, the plaintiff, a passenger 
 by the Great Western Railway, having taken and paid for a 
 second-class ticket, delivered her luggage to a porter of the 
 defendants, telling him to what station she was going, and 
 after seeing him label it, took her seat in the train. On her 
 arrival at her destination, one of her boxes was missing. 
 By the defendants' charter, they were empowered to make 
 by-laws, which were to be painted on a board and hung up 
 at the stations, and were to be binding on all parties. 
 One of the by-laws ran as follows : " Every first-class pas- 
 senger will be allowed 112 lbs., and every second-class 
 passenger 56 lbs. of luggage, free of charge ; but the com- 
 pany will not be responsible for the care of the same unless 
 booked and paid for accordingly." It did not appear that 
 the plaintiff knew of the by-law, or that it had been affixed 
 at the stations as required by the act. It was admitted by 
 the defendants that the box had been stolen. The plaintiff 
 having sued the defendants in a county court for the loss, the 
 judge, on these facts, held the defendants liable, and gave the 
 plaintiff the full value of the box. On appeal, it was held 
 that the judgment must be affirmed, as the primd facie lia- 
 bility of the defendants was not conclusively rebutted, and 
 there was therefore evidence to support the finding. 2 
 
 1 It is held that a carrier of pas- 21 L. J. C. P. 34 ; Richards v. Lon- 
 sengers is liable for the ordinary bag- don & South Coast Rail. Co., 7 C. B. 
 gage of a passenger, though no distinct 839 ; 6 Rail. Cas. 49 ; 13 Jur. 986 ; 
 price is paid for its transportation. 18 L. J. C. P. 251 ; Butcher v. Lon- 
 Bomar v. Maxwell, 9 Humph. (Tenn.) don & South- Western Rail. Co., 16 
 621 ; Merrill v. Grinnell, 30 N. Y. C. B. 13 ; 3 C. L. R. 805 ; 1 Jur. 
 594 ; Prixotti w. McLaughlin, 1 Strobh. n. s. 427 ; 24 L. J. C. P. 137. In 
 (S. C.) 468 ; Orange County Bank v. this case there was evidence of negli- 
 Brown, 9 Wend. (N. Y.) 75 ; Woods gence upon the part of the company's 
 v. Devin, 13 111. 746. servants. Midland Rail. Co. app., 
 
 2 Great Western Rail. Co. v. Good- Bromley, resp., 17 C. B. 372 ; 2 Jur. 
 man, 12 C. B. 313 ; 16 Jur. 862 ; n. s. 140 ; 25 L. J. C. P. 94 ; Cock- 
 21 L. J. C. P. 197 ; Williams v. Great burn, C. J., in Le Conteur v. London 
 Western Rail. Co., 10 Exch. 15 ; Mar- & South- Western Rail. Co., 1 L. R. 
 shall v. York, Newcastle, & Berwick Q. B. 54, 59 ; Powell v. Myers, 26 
 Rail. Co., 11 C. B. 655 ; 16 Jur. 124; Wend. (N. Y.) 591 ; Walsh v. The 
 
WHO AEE COMMON CARRIERS. 
 
 117 
 
 SEC. 59. Reason of the Common-law Duty. — From the 
 way in which the liability of carriers of passengers for their 
 passengers' luggage came to be recognized, it might be in- 
 ferred that this liability extended only to luggage, and no 
 further. The facts which brought about this recognition were 
 these : First, the necessity which each person who travels is 
 under to carry luggage ; and second, the fact that the contract 
 to carry the baggage was necessary on the side of the proprie- 
 tors of the conveyance to make the contract to carry indi- 
 viduals at all advantageous. In that way the law came to 
 impose the common-law duty, with regard to baggage, upon 
 carriers of passengers, and at the same time to impose the 
 common-law liability to make good the loss or damage of lug- 
 gage so carried. From such a beginning it might be inferred 
 that this duty only extended to a person's personal luggage. 
 Such is actually the case. 1 It is sometimes difficult to deter- 
 
 H. M. Wright, 1 Newb. 494 ; Cam- 
 den & Amboy R. R. Co. ». Belknap, 
 21 Wend. (N. Y.) 354; Pardee v. 
 Drew, 25 Wend. (N. Y.) 459 ; Hollis- 
 ter v. Nowlen, 19 Wend. (N. Y.) 234; 
 Bomar v. Maxwell, 9 Humph. (Train. ) 
 321 ; Hawkins v. Hoffman, 6 Hill (N. 
 Y.), 586 ; Blanchard v. Isaacs, 3 Barb. 
 (N. Y.) 388; Gore v. Norwich, &c. 
 Co., 2 Daly (N. Y.), 254 ; Holdridge v. 
 Utica, &c. It. R. Co., 56 Barb. (N. Y.) 
 191. 
 
 1 Shepherd v. Great Northern Rail. 
 Co., 8 Exch. 30 ; 7 Rail. Cas. 310 ; 
 21 L. J. Bxch. 286 ; Brooke v. Pick- 
 wick, 4 Bing. 218; 12 Moore, 447. 
 It is often a very difficult question to 
 determine what constitutes ordinary 
 baggage for which a carrier is liable, 
 the general rule being that the implied 
 obligation of a common carrier to carry 
 the baggage of a passenger does not 
 extend beyond ordinary baggage, or 
 such as a traveller usually carries with 
 him for his personal convenience. Mer- 
 rill u. Grinnell, 30 N. Y. 594 ; John- 
 son v. Stone, 11 Humph. (Tenn.) 419 ; 
 
 Whitmore v. Steamer Caroline, 20 Mo. 
 513 ; The Ionic, 5 Blatchf. (U. S. 
 C. C.) 538 ; Collins v. Boston R. R., 
 10 Gush. (Mass.) 606 ; Bell v. Drew, 
 4 E. D. S. (N. Y. C. P.) 59 ; Dibble 
 v. Brown, 12 Ga. 217; Richards v. 
 Westcott, 2 Bosw. (N. Y.) 589 ; Smith 
 v. Boston, &c. R. R. Co., 44 N. H. 
 325 ; Stimson v. Connecticut, &c. R., 
 R. Co., 98 Mass. 83. It is not neces- 
 sary that the articles should be simply 
 such as are necessary or useful during 
 the journey ; it is enough if they are 
 for use during the stay at the terminus 
 thereof. Toledo, &c. R. R. Co. v. 
 Hammond, 33 Ind. 379 ; New Orleans, 
 &c. R. R. Co. v. Moore, 40 Miss. 
 39. And this includes all kinds of 
 clothing for himself and family who 
 travel with him, as well as articles 
 of jewelry and personal adornment. 
 American Contract Co. v. Cross, 8 Bush 
 (Ky.), 472; McCormick v. Hudson 
 River R. R. Co., 4 E. D. S. (N. Y. 
 C. P.) 181 ; Mississippi Central R. R. 
 Co. v. Kennedy, 41 Miss. 671 ; Smith 
 v. Boston, &c. R. R. Co., 44 N. H. 
 
118 
 
 THE LAW OP CARRIERS. 
 
 mine what is a man's personal luggage ; but some decisions 
 enable us to say at least what does not fall under that descrip- 
 
 325 ; Hawkins v. Hoffman, 6 Hill (N. 
 Y.), 586. And the question as to 
 what constitutes articles of personal 
 convenience has been variously de- 
 cided, and depends largely upon the 
 habits, manners, and customs of the 
 people in the section of country in 
 which the question arises, as well as 
 the profession or rank and condition 
 of the passenger, and the length of 
 the journey, and the purposes for 
 which it was undertaken. A person 
 undertaking a long journey requires 
 many more articles for his personal 
 convenience than one undertaking a 
 short one ; and while a person under- 
 taking a journey of only a few miles 
 is entitled to put in his baggage a 
 sum of money sufficient to defray the 
 reasonable expenses of his journey, 
 yet he would not be entitled to place 
 there, at the risk of the carrier, so 
 large a sum as a person undertaking a 
 long journey, as in all cases the ques- 
 tion of reasonableness in this respect is 
 to be determined in view of the cir- 
 cumstances. This rule is well illus- 
 trated by a recent case decided in the 
 United States Supreme Court (New 
 York Central, &c R. R. Co. v. Fra- 
 loff, 100 U. S. 24). In that case a 
 Russian lady travelling iu this country 
 carried as a part of her baggage and 
 for her personal use a large quantity 
 of lace, used as a part of her wearing 
 apparel on certain occasions, and which 
 she valued at $75,000, and which the 
 jury found to be worth $10,000. The 
 trunk containing it was lost, and the 
 court held that under the circum- 
 stances a recovery could be had there- 
 for. " To the extent that articles 
 taken by a traveller," say the court, 
 " for his personal use when travelling 
 exceed in quantity and value such as 
 
 are ordinarily taken by passengers of 
 like station and pursuing like jour- 
 neys, they are not baggage for which 
 the carrier is, by general law, respon- 
 sible as insurers ; whether he has 
 taken such excess is a question of fact 
 for the jury." It was also held in 
 the same case that the carriers may be 
 discharged from liability for the full 
 value, if the passenger, by any artifice, 
 evades inquiry as to such value, where- 
 by a responsibility is imposed upon 
 them beyond what they are bound to 
 assume in consideration of the ordi- 
 nary fare charged for the transporta- 
 tion of the person. But that in the 
 absence of legislation, or of special 
 regulations by the carriers, or of con- 
 duct by the passenger misleading 
 them as to such value, his failure to 
 disclose it, when no inquiry is made 
 of him, is not, in itself, a fraud 
 upon them. " Manuscript books," 
 the property of a student, and used in 
 the prosecution of his studies, have 
 been held to be ordinary baggage ; 
 also a gun and fishing-tackle. Hop- 
 kins v. Westcott, 6 Hill (N. Y.), 
 589. So the instruments of an army 
 surgeon travelling with troops, Han- 
 nibal R. R. Co. v. Swift, 12 Wall. 
 (U. S.) 262 ; an opera-glass, Toledo, 
 &c. R. R. Co. ». Hammond, 33 Ind. 
 379 ; a carpenter's tools, Porter «. 
 Hildebrand, 14 Penn. St. 129; a 
 pocket pistol and a pair of duelling 
 pistols, Woods v. Denin, 13 III. 746, 
 but see Chicago, &c. R. R. Co. v. 
 Collins, 56 111. 212, where it was held 
 that only one pistol could be recovered 
 for as baggage ; linen, cut into shirt- 
 bosoms for the use of the passenger, 
 Duffv v. Thompson, 4 E. D. S. (N. Y. 
 C. P.) 178 ; McCormick v. Hudson 
 River R. R. Co., 4 E. D. S. (N. Y. C. 
 
WHO ABE COMMON CARRIERS. 
 
 119 
 
 tion. Thus it has been decided that a railway company whose 
 charter enabled every passenger to take with him his articles 
 
 P.) 181 ; Torpey v. Williams, 3 Daly 
 (N. Y.), 162; a watch, Jones v. Yoor- 
 hees, 10 Ohio, 145 ; personal jewelry, 
 Doyle v. Kyser, 6 Ind. 242 ; McCor- 
 miek v. Hudson River R. R. Co., ante ; 
 Torpey v. Williams, 3 Daly (N. Y. C. P.), 
 162 ; a proper sum of money for travel- 
 ling expenses, Merrill v. Grinnell, 30 
 N. Y. 594, but not for an amount 
 beyond that which a prudent person 
 would deem proper, for the purpose, 
 Jordan v. Pall River R. R. Co., 5 Cush. 
 (Mass.) 69 ; Dunlap v. International 
 Steamboat Co., 98 Mass. 371 ; nor 
 for money belonging to another pas- 
 senger, however reasonable in amount. 
 Stewart v. International Steamboat 
 Co., 98 Mass. 371. Money, in order 
 to constitute baggage, must be con- 
 fined to such a reasonable sum as is 
 necessary to defray the expenses of the 
 journey ; consequently money placed 
 in a trunk for the purpose of buying 
 clothing at the place to which the pas- 
 senger is going, has been held not to 
 be recoverable as baggage. Hickox v. 
 Naugatuck, &c. R. R. Co., 31 Conn. 
 281. Thus, in the case last cited, the 
 plaintiff admitted that sixty dollars of 
 the money lost from his trunk was 
 taken with him for the purpose of buy- 
 ing clothing, and the court held that it 
 was not recoverable. The amount of 
 money which may be treated as bag- 
 gage is to be measured by the object, 
 length, and purpose of the journey, 
 and is such a reasonable sum as a pru- 
 dent person would deem necessary in 
 view of all the circumstances, and is a 
 question of fact to be found by the 
 jury. Illinois Central R. R., Co. v. 
 Copeland, 24 111. 332; Jordan v. Pall 
 River R. R. Co., 5 Cush. (Mass.) 69. 
 When an extra charge is made for bag- 
 gage, even though it consists of articles 
 
 not within the class of ordinary bag- 
 gage, it is held, in the absence of any 
 fraud or imposition on the part of the 
 passenger, that the carrier is liable for 
 its loss by fraud or negligence; and 
 this was held to be the case where a 
 passenger packed "specie" in his 
 trunk, and procured it to be taken as 
 baggage, although the company ad- 
 vertised that " passengers are prohib- 
 ited from taking with them anything 
 as baggage but their wearing-apparel, 
 which will be at the risk of the owner." 
 Camden, &c. R. R. Co. v. Baldauf, 16 
 Penn. St. 67. Among articles of ne- 
 cessity for which a carrier by water is 
 liable as baggage, is such bedding as 
 is carried by a steerage passenger for 
 use on the voyage, Hirschshon v. 
 American Packet Co., 2 J.- & S. N. Y. 
 Superior Ct.) 521, but not for bed- 
 ding packed in a trunk or not used 
 on the voyage. Connolly o, Warren, 
 106 Mass. 146. Whether bedding be- 
 longing to a person who is moving 
 with his family, packed in' a box or 
 trunk, is baggage or not, is a question 
 of fact for the jury in view of all the 
 circumstances, and the use, quality, 
 value, and kind of articles. Ouimit 
 v. Henshaw, 35 Vt. 605. The rules 
 adopted by the courts as to what con- 
 stitutes ordinary baggage are not al- 
 ways consistent nor uniform ; and the 
 doctrine of some of the cases, carried 
 out to their legitimate sequence, would 
 almost admit of a passenger taking 
 along with him his entire household 
 furniture, if he is a poor man, and 
 needs the furniture for use at the end 
 of his journey, and it can be packed 
 in trunks or boxes. Of this class are 
 Ouimit v. Henshaw, 35 Vt. 604 ; and 
 Parmalee v. Pischer, 22 111. 212. In 
 the former of these cases it was held 
 
120 
 
 THE LAW OP CAEEIEES. 
 
 of clothing, not exceeding a specified weight and dimensions, 
 and which absolved the company from all liability or respon- 
 
 that a feather bed and the necessary 
 accompaniments of bedquilts, pillows, 
 &c., belonging to a poor man removing 
 with his family, might properly be 
 regarded as personal baggage ; while 
 in the latter case, " two feather beds 
 and pillows, two coverlets, two bed- 
 spreads, or blankets, . . . one oil-cloth 
 table-cover, . . . one German-silver 
 or britannia teapot, one looking-glass, 
 one new double-barrelled gun, one set 
 of common dishes, two dozen German- 
 silver spoons, one serving-box, . . . 
 and six towels," together with con- 
 siderable clothing, worth about one 
 hundred and fifty dollars, were found 
 by the jury to be such articles of neces- 
 sity and convenience as are usually 
 carried by passengers for their per- 
 sonal use and comfort, instruction and 
 amusement or protection, having re- 
 gard to the object and length of the jour- 
 ney. The verdict was upheld on appeal. 
 These cases cannot be said to con- 
 form to the principles usually adopted 
 in this class of cases, except they are 
 put upon the ground that travellers 
 of the class in question, in the sec- 
 tion of country where the action was 
 brought, usually carried such articles 
 as baggage, and the carrier was bound 
 to know of the usage, and therefore 
 to assent to accept and take them as 
 baggage. From what has been said 
 and the cases given, it will be seen 
 that the question as to what constitutes 
 " ordinary baggage," within the legal 
 significance of the term, depends en- 
 tirely upon the circumstance whether 
 the articles are "necessary or con- 
 venient" to the traveller under the 
 circumstances of the case, or are such 
 as are usually carried by travellers. 
 As we have seen, jewelry for personal 
 use, to a reasonable extent, is within 
 
 the term; but jewelry intended for 
 presents to a traveller's friends is 
 not. Nevins v. Bay State, &c. Co., 
 4 Bosw. (N. Y.) 225. But it seems 
 that articles purchased for his family 
 are properly baggage, if such as are 
 usually carried, although not necessary 
 for his use or comfort on the journey. 
 Dexter v. Syracuse, &c. B. B. Co., 34 
 N. Y. 326. Masquerade costumes 
 furnished for use at a ball, Michigan, 
 &c. B. B. Co. v. Oehm, 56 111. 293, 
 Masonic regalia, engravings, valuable 
 merchandise, &c, do not come under 
 the head of baggage, Nevins v. Bay 
 State, &c. Co., ante; Pardee v. Drew, 
 25 Wend. (N. Y.) 459, nor indeed 
 any articles which are not necessary or 
 convenient for the use of the passen- 
 ger on his journey; and in all cases 
 the question as to what is reasonable, 
 necessary, or convenient is a question 
 of fact for the jury in view of the 
 character of the journey and the spe- 
 cial circumstances of the case. Mer- 
 rill v. GrinneU, 30 N. Y. 594. The 
 rule is, that when a traveller presents 
 to a carrier of passengers, as his bag- 
 gage, a trunk or carpet-bag without 
 describing its contents, he impliedly 
 represents that it only contains such 
 articles as are usually carried as bag- 
 gage, or such as are necessary for his 
 convenience and comfort upon his 
 journey. The carrier is not bound to 
 inquire for articles of extraordinary 
 value which it may contain; but if 
 there are such, the passenger should 
 disclose the fact, that the carrier may 
 exercise the increased vigilance which 
 such extraordinary value demands. 
 Michigan, &c. B. B. Co. ». Carrau, 
 73 111. 348. 
 
 The liability of a common carrier 
 for the baggage of a passenger con- 
 
WHO ARE COMMON CARRIERS. 
 
 121 
 
 sibility for articles other than and except articles of clothing, 
 having, as they had power to do under their charter, made a 
 
 tinues until the baggage is ready to be 
 delivered to the owner at his destina- • 
 tion, and until he has had a reasonable 
 opportunity of receiving and removing 
 it. What constitutes such reasonable 
 time and opportunity is a mixed ques- 
 tion of law and fact, necessarily depen- 
 dent upon the peculiar surroundings 
 of each particular case. Louisville, 
 &e. R. R. Co. v. Mahan, 8 Bush (Ky.), 
 135. See Torpey v. Williams, 3 Daly 
 (N. 1.), 162; Klein v. Hamburg, &c. 
 Packet Co., 3 Daly (N. Y.), 390. 
 And where, for his own convenience, 
 a passenger left his baggage in the car- 
 rier's depot over night and it was 
 burned, it was held that the company 
 was not liable therefor. Morris v. 
 Third Avenue R. R. Co., 1 Daly (N. Y. 
 C. P.), 202 ; Jones v. Norwich, &c. 
 Transportation Co., 50 Barb. (N. Y.) 
 493. The obligation to exercise ordi- 
 nary care in keeping and preserving 
 property as to which they have been 
 relieved from their peculiar liability as 
 insurers, by the failure of the owner to 
 call for his baggage within a reasonable 
 time, is not a new and independent 
 obligation, arising from the circum- 
 stance, accidental and unprovided for, 
 of the property being left in the hands 
 of the carrier. Th,e duty is imposed 
 by the contract of carriage, and there- 
 fore rests upon the carrier with whom 
 the contract was made, although the 
 place of destination is beyond its route, 
 and upon the line of a connecting car- 
 rier. Burnell v. New York, &c. R. R. 
 Co., 45 N. Y. 184. Where baggage 
 which had arrived at its point of desti- 
 nation was left in the custody of the 
 agent of the railroad company for 
 the night, and during the same night 
 the depot and contents, including the 
 baggage, were destroyed by fire, held, 
 
 that, in order to make the company 
 liable for the baggage so destroyed, it 
 was incumbent on the owner to show 
 that the fire was the result of such 
 negligence on the part of the em- 
 ployees of the company as would ren- 
 der liable a bailee for hire. Louisville, 
 &c. R. R. Co. v. Mahan, 8 Bush (Ky.), 
 184. The rule may be said to be that 
 common carriers of passengers, with 
 their ordinary baggage, for hire, are 
 liable for losses occurring from any 
 accident to the baggage while it is in 
 their keeping as carriers, except those 
 arising from the acts of God or a pub- 
 lic enemy ; and this liability once com- 
 menced does not necessarily terminate 
 with the transit, but prima facie con- 
 tinues until the safe delivery of the 
 baggage to its owner. But when the 
 passenger refuses to receive his bag- 
 gage, or neglects to call for it within a 
 reasonable time after the transit, the 
 responsibility of the carriers is changed 
 to that of a bailee, liable only for loss 
 occasioned by his own neglect. Roth 
 v. Buffalo, &c. R. R. Co., 34 N. Y. 
 548. It makes no difference, so far as a 
 common carrier's responsibility for the 
 safety of a passenger's baggage is con- 
 cerned, whether the passenger travels 
 with his baggage, or whether it is car- 
 ried without him. Wilson v. Chesa- 
 peake, &c. R. R. Co., 21 Gratt. (Va.) 
 654. But a carrier is not responsible 
 for the loss of baggage which the pas- 
 senger himself takes charge of. Thus, 
 where passengers left a portion of the 
 jewelry usually worn by them in the 
 stateroom of a steamboat, and it was 
 stolen, it was held that the carrier was 
 not responsible therefor. The. R. E. 
 Lee, 2 Abb. (TJ. S.) 49. But see Mud- 
 gett v. Bay State Steamboat Co., 1 Daly 
 (N. Y. C. P.), 151, where it was held 
 
122 
 
 THE LAW OP CARRIERS. 
 
 regulation requiring passengers, after taking their tickets, 
 to claim their luggage on the platform, and to see it marked 
 
 that the mere supervision of his bag- 
 gage by a passenger, or his having the 
 means of entering the place of its de- 
 posit, is not sufficient to discharge the 
 carrier from liability for its loss, and 
 that there must either exist the animus 
 custodiendi on the part of the passen- 
 ger to the exclusion of the carrier, or 
 he must be guilty of such negligence 
 as excuses the latter from his general 
 obligation, and that the proprietor of 
 a steamboat is responsible for baggage 
 of a passenger which he has locked up 
 in his stateroom, but which is. stolen 
 therefrom on the journey. See also, 
 to the same effect, where the boat- 
 owner was held responsible for an 
 overcoat hung up in his stateroom by 
 a passenger, and which was stolen 
 therefrom. Gore v. Norwich, &c. 
 Transportation Co., 1 Daly (N. Y. C. 
 P.), 254 ; S. P. Van Horn v. Kermit, 
 4 E. D. S. (N. Y. C. P.) 453 ; Crozier 
 v. Boston, &c. Steamboat Co., 43 How. 
 (N. Y.) Pr. 466 ; Duffy v. Thompson, 
 4 E. D. S. (N. Y. C. P.) 178. But 
 where a passenger on an emigrant ves- 
 sel retains his trunk in his own posses- 
 sion, and it is stolen, the owners of 
 the ship are not liable. To render 
 them liable it must be placed under 
 their charge. Cohen v. Erost, 2 Duer 
 (N. Y. Superior Ct.), 335. Nor is 
 a railroad company responsible for 
 the loss of baggage or any property 
 taken by a passenger into the car with 
 him. Tower v. Utica, &c. R. R. Co., 
 7 Hill (N. Y.), 47. But if the carrier 
 interferes with a passenger's baggage 
 while in a passenger-car, — as if his 
 servants remove it from one car to an- 
 other, or attempt to do so, — and it is 
 lost by reason of their negligence, 
 they are responsible therefor. Thus, 
 in Kinsley v. Lake Shore R. R. Co., 
 
 125 Mass. 54, it appeared that the 
 plaintiff, on leaving a sleeping-car to 
 get his dinner, was informed by an 
 employee of the defendant that his 
 baggage, if left therein, would be safe ; 
 and upon his return he found the car 
 locked and detached, and was informed 
 that he could have a seat in another 
 sleeping-car, and would find his bag- 
 gage there, but upon going there he 
 found only part of his baggage. No 
 previous notice of the change had been 
 given him, and there was no evidence 
 that he knew that the first car was not 
 owned by the defendant, but by an- 
 other company, who, by a contract 
 with the defendant, provided conduc- 
 tors and servants therefor. The court 
 held that the jury were warranted in 
 finding that the missing bag was lost 
 through the negligence of the defend- 
 ant, and that the defendant was liable 
 therefor, although the first car was 
 not owned by it. 
 
 So, while a carrier is not obliged to 
 accept anything but ordinary baggage 
 as baggage, yet, if without extra com- 
 pensation,, and knowing that it is not 
 personal baggage, he permits it to be 
 carried and treated as such, he is liable 
 for its loss. Ross v. Missouri, &c. R. 
 R. Co., 4 Mo. App. 582. In Waldron 
 v. Chicago, &c. R. R. Co., 1 Dakota, 
 351, the plaintiff, after buying a ticket 
 for himself, son, and two daughters, 
 pointed out to the baggage-master as 
 his baggage three trunks and two 
 boxes, one of which was a rough pine 
 box, twenty inches square and ten 
 inches deep, having nothing to which 
 a check could be fastened, whereupon 
 the baggage-master said he would place 
 it in the baggage-car, and it would go 
 just as safely, only that it would have 
 to be looked after at M., or it might 
 
WHO AEE COMMON CARRIERS. 
 
 123 
 
 with the company's labels, and declaring that no luggage 
 would be placed in the train until it was so marked, and 
 
 be taken beyond that station. On ar- 
 riving at M. the pine box was missing. 
 It appeared that one T. had bought a 
 ticket to S., requesting the night bag- 
 gage-master to check the box thereto; 
 that T. unlocked and took from the 
 box and presented to him a photograph 
 of W.'s family; that T. then locked 
 the box and put a rope around it, 
 whereto a cheek to S. was attached, 
 and at S. the box was delivered to T. 
 There was no other evidence than that 
 stated, that T. was the plaintiff's agent, 
 and the plaintiff denied any such 
 agency. It was held that the com- 
 pany having received the box upon the 
 passenger train without the plaintiff's 
 having concealed the fact that it was 
 not personal baggage, the fact that it 
 was not such in fact did not save them 
 from liability therefor. In Minter v. 
 Pacific R. R. Co., 41 Mo. 503, a pas- 
 senger delivered his trunk and a piece 
 of carpeting to the baggage-master of 
 a passenger train, and received a check 
 for his trunk, but was told that no 
 check was necessary for the carpet, as 
 it would go safely ; it was held that 
 the railroad company was liable for 
 the loss of the carpet, although by the 
 printed rules of the company the bag- 
 gage-master was forbidden to receive 
 as baggage any article of merchandise. 
 Cheeks given for baggage are merely 
 evidence of its having been received 
 by the carrier, and of its non-delivery, 
 but do not of themselves establish the 
 carrier's liability therefor ; because, if 
 they are obtained under the pretence 
 that the owner of the baggage is a 
 passenger, and has obtained tickets for 
 that journey, or is about to do so, 
 when such is not the fact, the carrier 
 cannot be held chargeable as such for 
 the baggage. The contract from which 
 
 his liability for the safe carriage of the 
 baggage arises is the contract for the 
 carriage of the passenger himself. 
 Chicago, &c. R. R. Co. v. Clayton, 78 
 111. 616 ; Davis v. R. R. Co., 22 111. 
 278 ; Milnor v. New York & New 
 Haven R. R Co., 53 N. Y. 363; Dill 
 ». R. R. Co., 7 Rich. (S. C.) L, 158 ; 
 Wilson v. Chesapeake, &c. R. R. Co., 21 
 Gratt. (Va.) 654. Consequently a con- 
 tract to carry a passenger to a certain 
 place, although it involves his trans- 
 portation over several lines of rail- 
 roads, js also operative as a contract 
 to carry his baggage to the same point. 
 Wilson v. Chesapeake, &c. R. R. Co., 
 21 Gratt. (Va.) 654. And in the case 
 last cited, where a railroad company 
 had an arrangement with a stage com- 
 pany to carry passengers and baggage 
 from a certain point on its line to 
 another point, it was held that, having 
 issued a ticket to such place, it was 
 liable for the loss of the passenger's 
 baggage by the stage company. See 
 also, as to connecting lines of railroads, 
 Le Sage v. Great Western R. R. Co., 
 1 Daly (N. Y. C. P.), 306 ; Hart v. 
 Rensselaer R. R. Co., 8 N. Y. 37; 
 Weed v. Saratoga, &c. R. R. Co., 19 
 Wend. (N. Y.) 534 ; Candee v. R. R. 
 Co., 21 Wis. 582 ; Illinois Central R. 
 R. Co. v. Copeland, 24 111. 332 ; Tor- 
 pey v. Williams, 3 Daly (N. Y. C. P.), 
 162 ; Burnell ». New York Central 
 R. R. Co., 45 N. Y. 484; Cary v. 
 Cleveland, &c. R. R. Co., 29 Barb. 
 (N. Y.) 35. Although, if the passen- 
 ger elects to do so, he may proceed 
 directly against the carrier by whom 
 the baggage was lost; the only dis- 
 advantage in that latter instance being 
 that he takes the burden of showing 
 that the carrier sued lost the baggage, 
 while if he proceeds against the first 
 
124 
 
 THE LAW OP CAERIEBS. 
 
 further declaring that they would not be responsible for 
 any article of luggage that was not so marked — it has been 
 
 carrier, lie is only called upon to prove 
 the loss of the baggage, without being 
 required to show by which carrier. 
 Barter v. Wheeler, 49 N. H. 9; Illi- 
 nois Central R. R. Co. v. Frankenberg, 
 54 111. 88 ; Coates v. "United States 
 Express Co., 45 Mo. 238 ; Toledo, &c. 
 R. R, Co. v. Merriam, 52 111. 88 ; Cin- 
 cinnati, &c. R. R. Co. v. Pontius, 19 
 Ohio St. 222 ; McCormick v. Hudson 
 River R. R. Co., 4 E. D. S. (N. Y. 
 C. P.) 181; Kessler v. New York 
 Central R. R. Co., 61 N. Y. 538. In 
 Wilson v. Chesapeake R R Co., ante, 
 it was held that railway checks given 
 for baggage are admissible in evidence 
 to show what the carrier's undertaking 
 was. In other words, they are ad- 
 missible to show that a contract was 
 in fact made and issued in connection 
 with a through ticket, an evidence to 
 show that the carrier undertook to 
 carry the passenger through or other- 
 wise, accordingly as the check is given 
 through, or only for its own line. 
 But the mere circumstance that a car- 
 rier gives a through check is not suffi- 
 cient to establish his liability beyond 
 his own line, unless it is also shown 
 that he issued a through ticket. Thus, 
 in Green v. New York, &c. R. R. Co., 
 12 Abb. (N. Y.) Pr. n. s. 473, the 
 defendant railroad issued to the plain- 
 tiff a check for baggage to the terminus 
 of his journey, which covered its own 
 line and a steamboat line which run 
 in connection therewith ; but it did 
 not issue a ticket to the passenger be- 
 yond its own line, and it was held 
 that it could not be held liable for 
 the loss of the baggage by the steam- 
 boat company. But if a passenger 
 takes his baggage in the car with him 
 over the first line, but procures it to 
 be checked and carried in the baggage- 
 
 car over the second, the first line can- 
 not be held chargeable for the loss of 
 the baggage, because it never had it 
 in its custody. Straiton v. New York 
 & New Haven R R. Co., 2 E. D. S. 
 (N. Y. C P.) 184. But if it received 
 the baggage in the outset, the fact 
 that it was rechecked at another point 
 on the route and by another carrier 
 does not change its liability. Candee 
 v. Pennsylvania R R. Co., 21 Wis. 
 582. See also Mobile, fee. R. R Co. 
 v. Hopkins, 41 Ala. 486. Holding 
 that the first carrier, issuing a through 
 ticket and checking the baggage 
 through, is liable for its loss, see 
 Chicago, &c. R R. Co. v. Fahey, 52 
 111. 81 ; Illinois Central R. R. Co. v. 
 Copeland, 24 111. 332 ; Glasco v. New 
 York Central R. R. Co., 36 Barb. (N. 
 Y.) 557 ; Check v. Little Miami R R. 
 Co., 2 Dis. (Ohio) 237 ; Kessler v. 
 New York Central R. R. Co., 7 Lans. 
 (N. Y.) 62 ; Najac v. Boston, &c. R. 
 R. Co., 7 Allen (Mass.) , 320. Or that 
 the passenger may hold the line actu- 
 ally losing the baggage therefor. Bur- 
 nell v. New York Central R. R. Co., 
 45 N. Y. 184; Check v. Little Miami 
 R. R. Co., ante; Kessler v. New 
 York Central R. R. Co,, ante ; Burtis 
 v. Buffalo, &c. R R. Co., 24 N. Y. 
 269 ; Root v. Great Western R R. 
 Co., 45 N. Y. 525. 
 
 The possession of a railway baggage- 
 check, accompanied by evidence of the 
 baggage-master that, when required 
 by passengers, he put checks on their 
 baggage and gave duplicates to the 
 passenger, is sufficient evidence that a 
 person was a passenger on the cars, 
 and that he had the baggage checked. 
 Davis v. Cayuga, &c. R. R. Co., 10 
 How. (N. Y.) Pr. 330. In Dill t>. 
 South Carolina R. R. Co., 7 Rich. 
 
WHO ARE COMMON CARRIERS. 
 
 125 
 
 decided that a company, having done so, cannot refuse to 
 place in their van and convey as passengers' luggage a 
 
 (S. C.) 158, a check in the possession 
 of a passenger was held to be evidence 
 that the passenger's baggage was de- 
 livered to the company, and, as a 
 trunk is the nsual receptacle for bag- 
 gage, that a trunk with its contents 
 was delivered to it. In Kansas Pa- 
 cific R. R. Co. v. Moutelle, 10 Kan. 
 119, a passenger from New York to 
 Juuction City, Kan., delivered his 
 checks for his baggage to the baggage- 
 master of the defendant with the un- 
 derstanding that the defendant should 
 forward it to Junction City, and this 
 was held evidence to go to the jury to 
 establish the fact that the defendant 
 received the baggage. See also, hold- 
 ing that the delivery of a baggage- 
 check is prima facie evidence that 
 the carrier issuing it has the baggage, 
 Davis v. Michigan, &c. R. R. Co., 22 
 111. 278, and that the check is of no 
 importance as constituting the con- 
 tract of the company, it being merely 
 in the nature of a receipt and intended 
 as evidence of the ownership and iden- 
 tity of the baggage. Hickox v. Nau- 
 gatuck R. R. Co., 31 Conn. 281. It 
 is only prima facie evidence that the 
 carrier received the passenger's bag- 
 gage. Chicago, &c. R. R. Co. v. 
 Clayton, 78 HI. 616. 
 
 Palace-car companies are not re- 
 sponsible as innkeepers for the loss of 
 baggage which is retained by a pas- 
 senger in his own possession, and is 
 only liable, in the absence of a special 
 contract, as an ordinary private carrier 
 of passengers. Welch v. Pullman 
 Palace Car Co., 16 Abb. (N. Y.) Pr. 
 n. s. 352. In Blum v. Southern 
 Pullman Car Co., 1 Flip (U. S. C. C), 
 500, the rule adopted was, that a sleep- 
 ing-car company is not responsible 
 either as an innkeeper or common car- 
 
 rier for the passenger's baggage, but 
 that it must take reasonable care to 
 prevent the larceny of a passenger's 
 property ; and that, if it is negligent in 
 this respect, it is liable for such arti- 
 cles as are usually carried by a pas- 
 senger about his person, and such a 
 sum of money as may be deemed rea- 
 sonably necessary to defray the ex- 
 penses of his journey. 
 
 In order to render a carrier liable 
 for the loss of baggage, it is sufficient 
 to show a delivery of the baggage to 
 him ; and from the time of such deliv- 
 ery, although some time in advance of 
 the time when it will start upon its 
 transit, the carrier is liable for it as a 
 common carrier, and not as a ware- 
 houseman, from the time of delivery, 
 and if it is lost before the time for it 
 to start upon its transit, the carrier is 
 liable. Thus, in Hickox v. Nauga- 
 tuck R. R. Co., 31 Conn. 281, the 
 plaintiff took his trunk to the defend- 
 ant's depot at Waterbury, at eleven 
 o'clock, a. m., and asked to have it 
 checked to Bridgeport, on the train 
 which started at three, p. m. He was 
 told that it was not their custom to 
 check baggage until fifteen minutes 
 before the train started, whereupon he 
 left his trunk with the agent in the 
 baggage-room, and at the customary 
 time it was checked and put on the 
 cars for Bridgeport. It was rifled 
 after its delivery to the defendant, but 
 whether before or after it left the sta- 
 tion did not appear. The defendant 
 asked the court to charge the jury that 
 if the trunk was rifled after it was 
 taken to the depot and before it was 
 checked, there could be no recovery. 
 The court refused so to charge, and 
 upon appeal, Butler, J., said : — 
 
 " The reasonable convenience of 
 
126 
 
 THE LAW OP CARRIERS. 
 
 package brought by a passenger and made up in a railway 
 wrapper or horse-rug, on the ground that it consists of 
 
 travellers requires that they have an 
 opportunity to deliver baggage at any 
 reasonable time before the departure 
 of the train, and it is therefore the 
 duty of a railroad company to keep an 
 agent at all important stations to re- 
 ceive and take charge of baggage. 
 Jordan i>. Fall River R. R. Co., 5 
 Cush. (Mass.) 69. For aught that 
 appears, such was the custom of the 
 defendants, and the agent who received 
 the trunk was there for that purpose. 
 In respect to passengers the company 
 are carriers merely, and the trunk an 
 article which ordinarily accompanies 
 the passenger. If nothing had been 
 said, therefore, in respect to the pur- 
 pose for which it was delivered and 
 received by the agent of the defend- 
 ants, its reception for transportation 
 would be implied. But the purpose 
 and the hour were expressly indicated 
 by the plaintiff, and it was received 
 without objection, except that they 
 could not then give him a check. 
 Clearly it was received for the purpose 
 indicated, and the time fixed when by 
 their custom a check would be given 
 him . The length of time which elapsed 
 between its reception and the depart- 
 ure of the train could make no differ- 
 ence. 
 
 " In the case of Camden & Amboy 
 R. R. Co. i>. Belknap, 21 Wend. 
 (N. Y.) 354, trunks were left with 
 the company in the afternoon of one 
 day to go with the owner by the boat 
 of next morning, and one of them 
 was taken from the office of the com- 
 pany through the negligence of the 
 clerk or porter, before the departure 
 of the next boat, and it was holden 
 that they were in the possession of the 
 company as carriers, and that they 
 were answerable as such. See also 
 
 Redfield on Railways, 242, 3. The 
 custom of checking can have no effect 
 upon the character of the delivery. 
 That custom did not necessarily qual- 
 ify the delivery and acceptance. The 
 check is in the nature of a receipt, and 
 may be given and received at any time 
 when the convenience and custom of 
 the company dictate. It is not the 
 contract, but evidence of the owner- 
 ship, delivery, and identity of the 
 baggage. It is the delivery and &c-. 
 ceptance, the abandonment of all care 
 of the baggage by the passenger, and 
 the assumption of it by the agents of 
 the carriers, expressly or impliedly for 
 the purpose of transportation, which 
 fix the liability of the latter as such, 
 and that liability begins when the bag^ 
 gage is delivered to the agent of the 
 company ■ for carriage. Redfield on 
 Railways, 246. 
 
 " Inasmuch, therefore, as the plain- 
 tiff was entitled to a verdict upon the 
 facts, and no injustice has been done, 
 there can be no new trial on that 
 ground. But there is error in respect 
 to the amount of damages. The com- 
 pany were liable for money contained 
 in the trunk required by the plaintiff 
 for his personal use and travelling ex- 
 penses. That is well settled and was 
 conceded on the trial. But their lia- 
 bility extended no further. The plain- 
 tiff admitted that sixty dollars of the 
 money in the trunk was taken with 
 him for the purchase of clothing. 
 That money was in no just sense taken 
 for travelling expenses or personal 
 use. So the defendants requested the 
 court to charge the jury; and we 
 think they were entitled to such 
 charge, in explicit terms, and that on 
 that point the charge and verdict are 
 wrong. A new trial is therefore ad- 
 
WHO ARE COMMON CARRIERS. 
 
 127 
 
 articles of clothing. In this case the plaintiff, who was 
 a passenger by the South-Eastern Kailway, required the 
 
 vised unless the plaintiff remits the 
 sum of sixty dollars, which he was 
 not entitled to recover." 
 
 In Rogers v. Long Island R. R. 
 Co., 56 N. Y. 620, the plaintiff sent 
 his trunk to the defendants' depot at 
 Peek's Slip, by an expressman, at 
 about noon, April 11, 1868. It was 
 marked " Israel P. Rogers, Riverhead, 
 L. I." The expressman found inside 
 the depot gate, where he carried the 
 trunk, two or three men unloading 
 freight, of whom he inquired who took 
 charge of baggage. They told him 
 the man in the office. He saw the 
 man in the office, and told him he had 
 a trunk outside, and the man said " All 
 right," and immediately sent two men 
 to take care of it. The trunk was left 
 by the expressman where the baggage 
 was kept, and inside the defendants' 
 enclosure and near their baggage crate, 
 which at that time was locked. The 
 man in the office had been the defend- 
 ants' ticket agent for some years. The 
 plaintiff went to the station at three 
 o'clock, and bought a ticket to River- 
 head, and called for his trunk, and it 
 could not be found. The court held 
 that these facts show a delivery to 
 the defendants, and were sufficient to 
 charge them with the loss of the trunk. 
 Of course a passenger is entitled to a 
 reasonable time in which to call for 
 his baggage after its arrival at its 
 place of destination ; but the question 
 as to what is a. reasonable time is. one 
 of fact, in view of the customs of the 
 country, the manner and facilities for 
 transporting baggage from the station, 
 and all the surrounding circumstances, 
 and what would be a reasonable time 
 in one case might not be so in another. 
 Mote v. Chicago, &c. R. R. Co., 27 
 Iowa, 22. It may be shown that the 
 
 depot was at a distance from a hotel 
 or village, and that there were no con- 
 veyances obtainable to take the bag- 
 gage away, or that the passenger was 
 sick and lame and unable to take 
 charge of the baggage personally, to 
 excuse the passenger from calling for 
 his baggage upon the arrival of the 
 train ; and if it is shown that the de- 
 fendants' agents agreed to let the bag- 
 gage remain until called for, the carrier 
 remains liable for it, as carrier, if it 
 is called for within a reasonable time. 
 Curtis v. Avon, &c. R. R. Co., 49 
 Barb. (N. Y.) 148. But in the latter 
 case it was held that if baggage is left 
 with the carrier for an unreasonable 
 time without being called for, and no 
 arrangement is made that the carrier 
 shall retain it for him, and it is lost 
 without the fault of the carrier, he is 
 not liable therefor. See Minor v. Chi- 
 cago, &c. R. R. Co., 19 Wis. 40. 
 A carrier of passengers is bound to 
 deliver baggage to a passenger with- 
 in a reasonable time after its ar- 
 rival. Cary v. Cleveland, &c. R. R. 
 Co., 29 Barb. (N. Y.) 35. And 
 if the baggage is not left at the 
 station for which it is checked, but is 
 carried to another and there stored, 
 and it is lost while there, he does not 
 cease to be carrier and become a mere 
 warehouseman as to the baggage, as 
 would have been the case if it had 
 been stored at the place to which it 
 should have been carried. Toledo, 
 &c. R. R. Co. v Hammond, 33 Ind. • 
 379. In Dinning v. New York & 
 New Haven R. R. Co., 49 N. Y. 546, 
 the plaintiff's wife was a passenger 
 upon the defendant road from N. to 
 M. Immediately upon the arrival of 
 the train at M. the depot-master 
 placed the trunk in the baggage-room 
 
128 
 
 THE LAW OP CARRIERS. 
 
 company's porter at their station in London to label and 
 take in the luggage van a package consisting only of his 
 
 and went away. She waited fifteen 
 minutes to get the trunk, but could 
 find no one to deliver it. About three 
 hours afterwards the plaintiff's son 
 went to the depot for the trunk, but 
 the depot-master was still absent. 
 The son went in pursuit of him and 
 returned with him, delivered the 
 cheek, and the trunk was drawn out 
 to the door ; but meanwhile the con- 
 veyance which was employed to take 
 the trunk had left and no other could 
 be obtained, so it was left in charge 
 of the baggage-master for the night. 
 During the night it was stolen from 
 the depot. It was held that the de- 
 fendant's liability therefor as common 
 carrier had not terminated. When 
 baggage is lost, it is presumed to have 
 been lost by the fraud or negligence of 
 the carrier. Garvey v. Camden, &c. 
 R. R. Co., 4 Abb. (N. Y.) Pr. 171 ; 
 Camden, &c. R. R. Co. v. Baldauf, 16 
 Penn. St. 67. 
 
 While a carrier is only bound to 
 carry for a passenger a reasonable 
 amount of baggage, and may make 
 proper regulations relative thereto, 
 yet, if he accepts an extra quantity 
 without objection or extra charge, he 
 is equally liable therefor as though 
 it was within the specified amount. 
 Glaseo v. New York Central R. R. 
 Co., 36 Barb. (N. Y.) 557. A carrier 
 cannot defeat his liability as a com- 
 mon carrier for the loss of a passen- 
 ger's baggage by a simple notice that 
 all baggage is at the risk of the owner, 
 Camden, &e. R. R. Co. v. Belknap, 
 21 Wend. (N. Y.) 354, printed either 
 upon the ticket or check, Rawson 
 v. Pennsylvania R. R. Co., 48 N. Y. 
 212, as there is no presumption that 
 a passenger read either before enter- 
 ing upon his journey. Malone v. 
 
 Boston, &c. R. R. Co., 12 Gray 
 (Mass.), 388; Brown v. Eastern 
 R. R. Co., 11 Cush. (Mass.) 97. 
 Nor can he place himself in the posi- 
 tion of a private carrier as to liability 
 for such baggage, unless notice that he 
 will only be liable as such therefor is 
 brought home to the knowledge of the 
 carrier before he enters upon his jour- 
 ney, and has an opportunity to recede 
 from his position of a passenger by the 
 carrier's line, if he so elects. Logan 
 v. Pontchartrain R. R. Co., 11 Rob. 
 (La.) 24. Nor, except possibly in 
 two or three States, can he limit his 
 liability from the consequences of the 
 negligence or wilful default or tort of 
 himself or servants. Mobile, &c. R. R. 
 Co. v. Hopkins, 41 Ala. 486 ; Indi- 
 anapolis, &c. R. R. Co. v. Cox, 29 Ind. 
 360. " Notice in the usual form," 
 says the court in Camden, &c. R. R. 
 Co. v. Burke, 13 Wend. (N. Y.) 611, 
 " ' All baggage at the risk of the own- 
 ers,' though brought home to the knowl- 
 edge of a passenger, will not in such 
 cases excuse the company. Common 
 carriers cannot by such notice excuse 
 themselves from the implied agree- 
 ment that the vessel, coach, or other 
 vehicle used for the transportation of 
 goods or baggage, is sufficient for the 
 business in which it is employed." 
 
 If a carrier of passengers, through 
 the mistake of a connecting carrier, 
 receives from such carrier baggage 
 which should be transported over an- 
 other line, he is liable for its loss al- 
 though the person to whom such bag- 
 gage belonged had no ticket and was 
 not a passenger over such line. Thus, 
 in Burnell v. New York Central R. R. 
 Co., 45 N. Y. 184 ; 6 Am. Rep. 61, 
 the plaintiff took passage, at Palmyra, 
 on the defendant's road for New York, 
 
WHO ARE COMMON CARRIERS. 
 
 129 
 
 wearing apparel ; the whole was wrapped in a shawl, properly 
 packed and addressed, and was within the allowed weight. 
 
 and purchased a ticket and checked 
 his trunk to the latter place. On his 
 arrival in New York, the plaintiff, 
 without calling for his baggage, went 
 to Brooklyn, and the second day after 
 his arrival presented his check and 
 demanded his trunk, but it could not 
 be found, and has not since been 
 found. This action was brought to 
 recover the value of the trunk and 
 contents. The referee found that the 
 trunk was lost through the negligence 
 of the defendants and their servants, 
 and that the plaintiff was entitled to 
 recover, upon which a judgment was 
 entered, which was reversed by the 
 general term, in the first district, and 
 a new trial ordered, from which the 
 plaintiff appealed. 
 
 The Supreme Court placed its de- 
 cision upon the ground that the defend- 
 ants' liability ceased with the trans- 
 portation of the trunk by the Hud- 
 son River Railroad Company to New 
 York, and its readiness to deliver it 
 within a reasonable time after arrival, 
 and that whatever responsibility was 
 incurred afterward in keeping or stor- 
 ing it was incurred by the latter com- 
 pany, for which the defendants were 
 not liable. 
 
 The Court of Appeals held that the 
 defendants were liable, and repudiated 
 the ground taken bytheSupreme Court. 
 " Leaving baggage with a carrier by 
 railroad," said Church, C. J., " either 
 for temporary convenience, from neces- 
 sity, sickness, or accident, is not such 
 an unusual or exceptional circum- 
 stance as to create a presumption that 
 it was not within the contemplation of 
 the parties at the time the contract 
 was made. The duty of exercising 
 care over property thus remaining in 
 their possession is a part of the duty 
 
 9 
 
 of carriers, incidental, it is true, to their 
 principal or main duty, but neverthe- 
 less incumbent upon them; and it is no 
 less a duty growing out of their rela- 
 tion of carriers, because their liability 
 is mitigated to that of ordinary bailees 
 for hire. Besides, this is the ordinary 
 mode in which this business has been 
 transacted, as the evidence in this case 
 shows, and as all railroad companies 
 are in the habit of doing. Baggage 
 thus left is and always has been kept 
 and cared for, and the manner of dis- 
 posing of it, if not finally called for, 
 was long since regulated by law (Laws 
 of 1837, p. 311), and it is presumed 
 that the parties contracted with refer- 
 ence to the existing state of facts, and 
 to the customary manner of transact- 
 ing such business. 
 
 " The other view terminates all rela- 
 tions between carrier and passenger 
 immediately upon the expiration of 
 the ' reasonable time ' within which 
 the baggage must be called for, and 
 transforms the carrier into a mere ac- 
 cidental finder, or gratuitous bailee, 
 liable only for gross negligence. In 
 other words, it makes two contracts in 
 every case where baggage is left, and 
 complicates the rights and duties of 
 the respective parties, and, while it 
 essentially impairs the security of the 
 public, confers no substantial benefit 
 upon the carrier. Its tendency would 
 be to induce carelessness and negli- 
 gence, where care and vigilance is 
 necessary. The fair construction of 
 the contract is, that the defendants 
 agreed for a consideration to transport 
 the plaintiff and his trunk to New 
 York, and deliver the latter to him on 
 its arrival, if called for ; if not, that it 
 should be properly stored, and rea- 
 sonable care exercised to prevent in- 
 
130 THE LAW OF CARRIERS. 
 
 The porter refused to do so, as the company had made a rule 
 not to label shawls, but offered to put it in the carriage with 
 the plaintiff, where it was to be under his charge. This the 
 plaintiff objected to, unless it was at the company's risk, but 
 did not prevent the company putting it there, or in any other 
 part of the train. The package being left behind, in conse- 
 quence of such refusal to label and carry it with the rest of 
 the luggage, was taken by a porter to the lost-property office, 
 and refused to be restored to the plaintiff except on payment 
 of 6c?. It was held that this was a wrongful act, for which 
 the company were responsible, as the company were not, 
 under the circumstances, justified in refusing to carry this 
 parcel with the responsibility of carriers. 1 
 
 SEC. 60. Ordinary Luggage. — Definition. — In another case, 
 pencil sketches of an artist, placed in his portmanteau, were 
 held not to form part of his ordinary luggage, so as to entitle 
 them to be conveyed free of charge. 2 And the "ordinary 
 luggage," for which a railway company would be held respon- 
 sible, does not include a client's title-deeds, which an attorney 
 may be carrying with him to produce in court ; nor can the 
 words be held to mean bank-notes (to a considerable amount), 
 which may be packed in a bag or portmanteau by the said 
 attorney, to be carried for the purpose of , defraying the ex- 
 penses of the trial. 3 It has, however, been definitely decided 
 
 jury or loss until it was called for, or being the agents of the defendants in 
 
 was lawfully disposed of. This sim- performing the contract, and the con- 
 
 plifies the transaction, carries out the tract of storage being a part of the 
 
 intention of the parties, legalizes the original contract of carriage, it follows 
 
 uniform practice, and does justice to that the defendants are liable for the 
 
 the carrier and the public. Although loss." 
 
 the rule on this subject has not been J Munster v. South-Eastern Rail, 
 
 very definitely settled, yet the princi- Co., 4 Jur. n. s. 738 ; 27 L. J. C. P. 
 
 pies herein indicated are not new. 308 ; 4 C. B. n. s. 676 ; Richards o. 
 
 Cary v. Cleveland & Toledo R. R. London, Brighton, & South Coast 
 
 Co., 29 Barb. (N. Y.) 35 ; The Nor- Rail. Co., 7 C. B. 839 ; 18 L. J. C. P. 
 
 way Plain Co. v. Boston & Maine 251. 
 
 R. R., 1 Gray (Mass.), 271, and cases 2 Mytton v. Midland Rail. Co., 28 
 
 cited. L. J. Exch. 385. 
 
 " These views in effect determine 8 Phelps v. London & North-West- 
 
 the liability of the defendants in this ern Rail. Co., 19 C. B. n. s. 321 ; 11 
 
 action. The Hudson River Company Jur. n. s. 552 ; 34 L. J. C. P. 259 ; 
 
WHO ARE COMMON CARRIERS. 131 
 
 that those articles only which travellers usually carry with 
 them as part of their luggage come within the definition of 
 ordinary or personal luggage, which a railway company is 
 bound to carry with a passenger free of charge. 1 Thus, a 
 child's toy, called a spring-horse, 78 lbs. in weight, and 44 
 inches in length, standing on a flat surface, is not within the 
 regulation of a company allowing first-class passengers 112 lbs. 
 of " personal luggage only (not being merchandise, or other 
 articles carried for hire or profit) free of charge." 2 
 
 Sec. 61. Question for Jury. — It may, in many cases, be a 
 question for the jury what a man's personal luggage consists 
 of, for it may be allowable that a man should carry different 
 articles with him, and that articles which, at one time and 
 under one set of circumstances, should not be considered per- 
 sonal luggage, might, at another time and under different 
 circumstances, be looked at in that light. Thus, a man who 
 was carrying in his portmanteau an article which was meant 
 as a present to some one he was going to visit, might clearly 
 regard that in the light of personal luggage while upon the 
 journey to the residence of his friend, although it might not 
 be such an article as " travellers usually carry with them as a 
 part of their luggage." 3 
 
 13 W R. 782 ; 12 L. T. v. s. 496. L. J. C. P. 244 ; 11 W. R. 911 ; 8 
 
 But see, where a different rule of law L. T. n. s. 666 ; 10 Jur. n. s. 208 ; 
 
 was laid down, Hopkins v. Westcott, Stewart e. London & North- Western 
 
 6 Blatchf. (U. S. C. C.) 64 ; Dunlap Rail. Co., 10 Jur. N. s. 805 ; 33 L. J. 
 
 v. International, &c. Co., 98 Mass. Exch. 199 ; 12 W. R. 689 ; 10 L. T. 
 
 371. s. s. 302 ; Walsh v. The H. M. Wright, 
 
 1 Hudson ». Midland Rail. Co., 1 Newb. (U. S.) 494. 
 
 4 L. R. Q. B. 366 ; 17 W. R. 705 ; 8 Hudson v. Midland Rail. Co., 
 
 38 L. J. Q. B. 213 ; 20 L. T. n. s. 4 L. R. Q. B. 366 ; The Ionic, 5 
 
 526. Blatchf. C. C. 538. The baggage for 
 
 2 Hudson v. Midland Rail. Co., which a carrier of passengers is liable 
 10 B. & S. 504. See Zunz v. South- is not limited to such apparel or other 
 Eastern Rail. Co., 4 L. R. Q. B. 539 ; articles as are absolutely necessary or 
 38 L. J. Q. B. 209 ; 20 L. T. n. s. material for the use, comfort, or con- 
 873. See also, with regard to the ar- venience of the passenger on his jour- 
 rangements of a company as to the ney, or while away from his home. It 
 amount of luggage to be carried by may include articles of ordinary wear- 
 passengers travelling by cheap excur- ing apparel, purchased on a journey 
 sion trains, Rumsey v. North-Eastern to be carried home for the use of the 
 Rail. Co., 14 C. B. n. s. 641 ; 3J passenger or for that of members of his 
 
132 THE LAW OF CARRIERS. 
 
 SEC. 62. Ordinary Passengers' Luggage. — In a recent case 
 which came before the Court of Queen's Bench, the general 
 principle, that whatever a passenger takes with him for his 
 personal use and convenience (and that is to be judged of in 
 relation to his habits or wants 1 as a member of the particular 
 class in society to which he belongs), either with a view to 
 present necessities, or any purpose for which the journey is 
 undertaken, is to be regarded as personal luggage, was 
 affirmed. The circumstances were shortly these : The plain- 
 tiff was a passenger by the Great Western Railway from 
 Liverpool to London, and took with him, as his personal lug- 
 gage in a trunk, six pairs of sheets, six pairs of blankets, and 
 six quilts. It appeared that he had given up his residence in 
 Canada, and the articles contained in the trunk were intended 
 for the use of his household when he should have provided 
 himself with a home in London. The trunk was lost, and he 
 sought to recover the value of the articles from the railway 
 company. It was held that these articles could not be con- 
 sidered as personal or " ordinary passengers' luggage." Cock- 
 burn, C. J., remarked that "the term ordinary luggage being 
 thus confined to that which is personal to the passenger, and 
 carried for his use or convenience, it follows that what is car- 
 ried for the purposes of business, such as merchandise or the 
 like, or for larger or ulterior purposes, such as articles of fur- 
 niture or household goods, would not come within the descrip- 
 tion 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 that a pair of sheets, or the like, taken by a pas- 
 senger for his own use on a journey, might not fairly be con- 
 sidered as personal luggage, it appears to us that the quantity 
 of articles of this description intended, not for the use of the 
 traveller on the journey, but for the use of his household 
 
 immediate family. It should not be diate family. Nevins v. Bay State, &o. 
 
 deemed to include articles purchased Co., 4 Bosw. (N. Y.) 225. 
 for a stranger, Dexter v. Syracuse, l Per Eele, C. J., in Phelps v. 
 
 &c. R. R. Co., 42 N. Y. 326, nor London & North-Western Bail. Co., 
 
 presents for friends outside his imme- 19 C. B. n. s. 321 ; 34 L. J. C. P. 259. 
 
WHO ARE COMMON CARRIERS. 
 
 133 
 
 when permanently settled, cannot be held to be so." 1 A 
 feather bed, necessary for a steerage passenger on a boat, and 
 used by him on the journey, is baggage ; 2 but not when it is 
 packed up and not intended for use on the voyage. 3 
 
 Sec. 63. Merchandise. — But although this is true, it is 
 certain that a railway company is not bound to carry, and is 
 not liable for the loss of, merchandise delivered to them by a 
 passenger as his personal luggage, and without notice that the 
 luggage contains merchandise.* It would certainly be unfair 
 
 1 Macrow v. Great "Western Rail. 
 Co., 6 L. R. Q. B. 612, at p. 622 ; 
 24. L. T. v. s. 619. 
 
 2 Hirschshon v. Hamburg Ameri- 
 can Packet Company, 2 J. & S. (N. Y. 
 Superior Ct.) 521. 
 
 8 Connolly v. Warren, 106 Mass. 
 146. 
 
 4 Cahill v. London & North- West- 
 ern Kail. Co., 10, C. B. n. s. 154 ; 7 
 Jur. N. s. 1164 ; 30 L. J. C. P. 289 ; 
 9 W. R. 653 ; 4 L. T. u. s. 246. 
 Affirmed on appeal, 18 C. B. n. s. 
 818 ; 8 Jur.N. s. 1063 ; 13 L. J. C. P. 
 271 ; 10 W. R. 391 ; Belfast & Bally- 
 mena Rail. Co. v. Keys, 9 H. L. Cas. 
 556; 8 Jur. N. s. 367; 9 W. R. 793; 
 4 L. T. n. s. 841 ; Great Northern 
 Rail. Co. v. Shepherd, 8 Exch. 30 ; 
 7 Rail. Cas. 310 ; 21 L. J. Exch. 286. 
 See Mississippi Central R. R. Co. o. 
 Kennedy, 41 Miss. 671; Cincinnati, 
 &c. R. R. Co. v. Marcus, 38 111. 219. 
 The term "baggage," for which pas- 
 senger carriers are liable if lost, does 
 not include articles of merchandise not 
 intended for personal use. Collins v. 
 Boston R. R. Co., 10 Cush. (Mass.) 
 606 ; The Ionic, 6 Blatchf. (U. S. C. C.) 
 538 ; Dibble v. Brown, 12 Ga. 83 ; 
 Bell v. Drew, 4 E. D. S. (N. Y. C. P.) 
 59 ; Stimson v. Connecticut, &c. R. R. 
 Co., 44 N. H. 325 ; Hawkins v. Hoff- 
 man, 6 Hill (N. Y.), 586 ; Doyle v. 
 Kyser, 6 Ind. 242. In Richards v. 
 London, Brighton, & South Coast Rail. 
 
 Co., 7 C. B. 839, it appeared that 
 the plaintiff's wife, as a passenger, had 
 intrusted her luggage to a company's 
 porter, who had placed her other lug- 
 gage in the van, but put her dressing- 
 case under her seat in the carriage. 
 On arriving at the terminus, the com- 
 pany's servants had placed; as she 
 thought, all her luggage in a hackney- 
 coach close to the platform ; but it 
 appeared subsequently that the dress- 
 ing-case was missing, and that it had 
 not been placed in the hackney-coach. 
 The court supported a verdict for the 
 plaintiff, on the ground that, according 
 to the course of the company's business, 
 there was no complete delivery to the 
 plaintiff's wife until the company's ser- 
 vant had placed the dressing-case in the 
 hackney-coach. If, however, the pas- 
 senger voluntarily takes charge of his 
 own luggage, the carrier will not be 
 responsible. In the last-named case 
 Wilde, C. J., said : " There is noth- 
 ing more common than for persons to 
 put part of their luggage into the same 
 carriage with them ; and that may be 
 done under such circumstances as 
 never to cast any responsibility on the 
 earner, but that must be proved. 
 When this is done by the company's 
 servants, the company are not relieved 
 from their liability as carriers in re- 
 spect of it. So a passenger taking a 
 valuable article openly and notoriously 
 into the same carriage- in which he 
 
134 
 
 THE LAW OP CAREIBBS. 
 
 to charge those who have liability imposed upon them by law 
 with responsibility for articles which may be of great value, 
 
 travels will not save the company from 
 responsibility. The case is quite dif- 
 ferent from that of goods which are 
 about the person of a passenger, which 
 are to be considered entirely under his 
 personal control and custody. In that 
 case there is no delivery to or accept- 
 ance by the company. Acceptance by 
 the company is the legal result of 
 goods placed in their hands in the 
 ordinary way in which they consent to 
 receive them." 
 
 So in Butcher v. London & South 
 Wales Bail. Co., 16 C. B. 13 ; 24 
 L. J. C. P. 137. In that case the 
 plaintiff on entering a railway carriage 
 had his portmanteau placed in the lug- 
 gage van, but kept with him the whole 
 journey a small hand-bag containing 
 money and valuables worth £240. 
 When the train arrived at the terminus 
 the plaintiff got out on the platform 
 with the bag in his hand. A com- 
 pany's servant then inquired of him 
 whether he should get him a cab, and, 
 on receiving an affirmative reply, he 
 took the bag, and, as he stated, subse- 
 quently placed it on the footboard of the 
 cab which he had engaged. When, how- 
 ever, the plaintiff (who had remained to 
 take care of his portmanteau) got there, 
 he found that the bag had disappeared, 
 and the driver denied that it had ever 
 been put on the cab. It also appeared 
 to be the usual course for the com- 
 pany's servants to assist gratuitously 
 in removing passengers' luggage from 
 the trains to the authorized cabs in 
 attendance, of which the cab in which 
 the plaintiff got was one. The jury 
 found generally for the plaintiff, and 
 the court held that there was evidence 
 to support the verdict. See also Le 
 Conteur v. London & South- Western 
 Bail. Co., L. B. 1 Q. B. 54; 35 L. J. 
 Q. B. 40. 
 
 By all railways passengers are per- 
 mitted to take a certain weight of 
 luggage, and by most of them this 
 luggage is confined to that which is of 
 a personal as distinguished from that 
 which is of a merchantable description ; 
 where, therefore, in such a case, a pas- 
 senger carries merchandise as personal 
 luggage the company will not be liable 
 for its loss. "If," says Cockbuen, 
 C. J., in Cahill v. London & North- 
 western Bail. Co., 13 C. B. k. s. 818; 
 31 L. J. C. P. 271, Exch., "a rail- 
 way company which, by the terms of 
 its regulations, allows a passenger to 
 take personal luggage, chooses to take 
 as luggage that whieh it knows to be 
 merchandise, I agree that it does not 
 lie in the mouth of the company, if an 
 article be lost, to say that they will be 
 exempt from liability, on the ground 
 of the article being merchandise and 
 not luggage. On the other hand, if a 
 passenger who knows that he is only 
 entitled to take personal luggage takes 
 merchandise, he cannot afterward claim 
 to be compensated in respect of its 
 loss by the company, to whom he has 
 given no notice of the contents of his 
 package. The question comes to this : 
 Was there knowledge on the part of 
 the company that that which the pas- 
 senger was taking with him as luggage 
 was in fact merchandise ? What was 
 said by Lord Wbhsleydale in Great 
 Northern Bail. Co. v. Shepherd, 8 
 Exch. 30 ; 9 L. J. Exch. 286, is in 
 perfect conformity with the view whieh 
 we now take of the question. The 
 point is, whether we can from the facts 
 stated come to the conclusion that 
 there was knowledge on the part of the 
 company — that is, of the company's 
 servants — that this box was mer- 
 chandise. I do not see my way to 
 that conclusion. It is true that it had 
 
WHO ARE COMMON CARRIERS. 
 
 135 
 
 when, to all appearance, the boxes contain only the articles 
 of clothing belonging to an individual. There can be no rea- 
 
 a semblance as of merchandise, 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. It is 
 not found by the jury that the com- 
 pany's servants knew that it was mer- 
 chandise ; and I do not think that we 
 ought to arrive at the inference that 
 they knew it, as a fair and legitimate 
 conclusion from the facts stated in the 
 case." In the foregoing case the 
 plaintiff, who was the traveller of Mr. 
 Rimmell, the perfumer of London, 
 travelled by the defendants' railway 
 from Northampton to London. He 
 took with him a box about three feet 
 long, eighteen inches wide, and twelve 
 inches deep, and two other packages. 
 The box was covered with a black 
 leather case, and had painted on the 
 top of it the name "Mr. Rimmell," in 
 large white letters, and also had paint- 
 ed across the top on each end the word 
 " glass." It contained samples of per- 
 fumery and other articles sold by Mr. 
 Rimmell. On his arrival at the North- 
 ampton station the box was given to 
 one of the defendants' porters on duty 
 at the station. No question was asked 
 by any of the company's ^servants 
 about the box, nor was any demand 
 made for payment for the carriage of it. 
 The plaintiff did not give any informa- 
 tion as to its contents. The porter 
 took it, placed it with the other lug- 
 gage, and it travelled safe to the junc- 
 tion at Blisworth, where the line from 
 Northampton joins the main line of the 
 defendants' railway. The luggage 
 from Northampton was taken out at 
 Blisworth, in order to be put into the 
 train for London. . On the arrival of 
 the train at London the box could not 
 
 be found, and had never since been 
 heard of. The plaintiff's luggage, in- 
 cluding the box, was under the weight 
 allowed by the company. Upon an 
 action being brought, a verdict was 
 taken for the plaintiff, subject to a 
 special case. In the case of Great 
 Northern Rail. Co. v. Shepherd, 8 
 Exch. 30; 21 L. J. Exch. 286, the 
 same point was decided. In that case 
 the plaintiff in the court below was 
 journeying by an excursion train, and 
 had with him goods which were not 
 personal luggage, but merchandise. 
 
 As to what constitutes personal 
 luggage no very certain definition has 
 as yet been given. In the above-cited 
 case of Great Northern Rail. Co. 
 v. Shepherd, Pakke, B., remarked 
 "that the term 'luggage,' according 
 to the true modern doctrine on the 
 subject, comprises clothing and such 
 articles as a traveller usually carries 
 with him for his personal convenience ; 
 perhaps even a small present, or a book 
 for the journey, might be included in 
 the term, but certainly not merchan- 
 dise, or materials bought for the pur- 
 pose of being manufactured and' sold 
 at a profit." And in Hudson v. Mid- 
 land Rail. Co., L. B. & Q. B. 366 ; 38 
 L. J. Q. B. 213, Lush, J., said : " It 
 is extremely difficult to frame a defini- 
 tion of what is 'personal luggage,' 
 which embraces everything which can 
 come within the meaning of the words, 
 or which isnotexcluded bythem. lean- 
 not say that I am satisfied with any of the 
 definitions which are given in the books 
 which have been referred to. Those 
 definitions were quite good enough for 
 the occasions upon which they were 
 given, but none of them seem to me 
 to be perfect. It would be very diffi- 
 cult, perhaps impossible, to frame a 
 
136 
 
 THE LAW OF CAEBIBRS. 
 
 son why people should not take risk if they are aware of it 
 before they enter into a contract. At that time they are in 
 
 definition which would be suitable in 
 any possible exigency; but I think 
 that the interpretation put upon the 
 rule by the company is not wide 
 enough, for they contend that 'personal 
 luggage ' applies only to luggage which 
 is carried by the passenger for his own 
 use, and is personal to himself. But I 
 do certainly think that any one using the 
 words ' personal luggage ' would mean 
 more than is included by this descrip- 
 tion. It is also to be observed that 
 the statute uses the words ' ordinary 
 luggage,' meaning a class of articles 
 which are ordinarily carried by passen- 
 gers as luggage ; so that we may construe 
 the rule by the aid of this description, 
 for the company would take it into 
 account when they were considering 
 what was the description of goods for 
 the carriage of which the passenger 
 had paid when he had taken his ticket, 
 and they would have regard to the 
 usual habits of passengers. Now the 
 article in question, although called a 
 child's toy, cannot to my mind come 
 within this description. It cannot 
 be considered as a mere toy, which 
 suggests something which may be car- 
 ried in the hand different from a sort 
 of rocking-horse weighing seventy- 
 eight pounds, and forty-four inches in 
 length." 
 
 The personal luggage must be that 
 of the actual traveller, and not of a 
 person not really engaged upon the 
 journey. In Becher v. Great Eastern 
 Rail. Co., L. R. 5 Q. B. 241; 39 
 L. J. Q. B. 122, it appeared that the 
 plaintiff and a party of friends arranged 
 to go from London to Newmarket, for 
 the purpose of attending the races 
 there, and they took a man-servant of 
 one of the party to attend on them in 
 common during their stay at New- 
 
 market. On the last day of the races, 
 the servant being about to return by 
 an early train on the defendants' line, 
 and the plaintiff being desirous of re- 
 turning later in the day, he intrusted 
 his portmanteau and its contents with 
 the servant, with directions to take it 
 up to London with him. The plaintiff 
 gave the servant a sovereign for his 
 attention during his stay at Newmarket. 
 The servant accordingly proceeded to 
 the defendants' station at Newmarket, 
 and obtained from the defendants and 
 duly paid them for a ticket from New- 
 market to Loudon. The servant de- 
 livered over the portmanteau with its 
 contents and his own luggage, as well 
 as that of the other gentlemen, to the 
 servants of the defendants at the New- 
 market station, as his ordinary luggage, 
 and the same was received by the de- 
 fendants as ordinary luggage, for the 
 purpose of being carried by the de- 
 fendants as carriers, with the servant 
 on his journey. The servant was car- 
 ried by the defendants to London ; but 
 the portmanteau and its contents were 
 lost during the journey by default of the 
 defendants. The plaintiff himself pro- 
 ceeded from Newmarket to London by a 
 later train by the defendants' railway on 
 the same day, and he also duly obtained 
 and paid the defendants for his ticket 
 for such journey, and took no luggage 
 with him. By the special act of the 
 defendants, every passenger travelling 
 upon their railways may take with him 
 his ordinary luggage not exceeding 
 oue hundred and twenty pounds in 
 weight for a first-olass passenger, one 
 hundred pounds in weight for a sec- 
 ond-class passenger, and sixty pounds 
 in weight for a third-class passenger, 
 without any charge being made for its 
 carriage. The baggage taken with 
 
WHO AEE COMMON CARRIERS. 137 
 
 a position to make their rate of charges cover the possible 
 losses, so as — even calculating on certain casualties — to 
 give them a fair remuneration for their capital, time, and 
 trouble. But where it has been clearly understood that indi- 
 viduals are only to carry their ordinary luggage with them, 
 and where the rates of conveyance have been calculated upon 
 the understanding of casualties to such kinds of luggage only, 
 it would be most unfair to allow persons to carry merchandise 
 or money to a large amount, and, in case of loss, to hold the 
 company liable. 
 
 Sec. 64. Meaning of Common-law Liability of Carriers. — 
 All that the common-law liability of carriers means is this, 
 that all those who carry on the trade of common carriers 
 shall, by the fact of that trade, be presumed to hold out to the 
 public generally a permanent offer of carriage of goods and 
 insurance of the same, which offer, whenever it is accepted by 
 any individual, at once becomes a complete contract binding 
 on both parties. But this permanent offer to carry goods is 
 not to be presumed as an offer to carry any goods, or to carry 
 certain goods, at any rate. Both these particulars are in the 
 power of the carrier to stipulate. But having so modified his 
 offer, whenever this modified offer is accepted, he is bound 
 
 the servant was delivered to the com- and the only duty -which is imposed 
 pany as not exceeding the weight he upon them is founded on their contract 
 was allowed to take, and was not with them." So, too, Lush, J., ob- 
 weighed. Upon these facts coming served: "The company are in this 
 before the court upon a special case, position : they are bound by law to 
 it was held that the company were not receive a certain quantity of the lug- 
 liable. In his judgment Mellob, J., gage of each passenger by their rail- 
 said : " We are not satisfied that this way. But if they had known that the 
 action cannot be maintained. There luggage was not the luggage of the 
 can be no doubt but that the port- servant, they would have known that 
 manteau was received by the company they were not bound to receive it, and 
 as the luggage of the servant, and that they probably would have refused it. 
 he was regarded by them as an ordi- There is no evidence of any duty on 
 nary passenger. It is unnecessary to the part of the company except that 
 say that the ease where a man says, which is founded upon their contract, 
 ' This is not my luggage, but my mas- and the only person with whom they 
 ter's,' may give rise to different con- contracted was the servant. But see 
 siderations. But here there is nothing Grant v. Nelson, 1 E. D. S. (N. Y. 
 of the kind. The person with whom C. P.) 95, contra. 
 they legally contracted was the servant, 
 
138 THE LAW OP CARRIERS. 
 
 by it, but so is the party accepting. Now, the implied offer 
 and acceptance in the case of a passenger's luggage is, on the 
 one hand, that the luggage shall be personal luggage ; and, on 
 the other hand, that the carrier will carry and insure all such 
 personal luggage. Upon these grounds, it would be most un- 
 fair to regard a common carrier as liable in the case of the 
 loss of merchandise which a passenger is carrying as if it was 
 personal luggage. 
 
 Sec. 65. Where Carrier will be Liable. — If, however, a 
 passenger packs merchandise in such a way that the servants 
 of a railway company or common carrier can see that it is 
 merchandise, and if these servants make no objection to car- 
 rying it, or if they do not demand an extra charge, or a special 
 bargain with regard to it, the company will be responsible in 
 case it is lost or damaged. 1 In such a case the railway com- 
 pany has, by its silence, modified its own permanent offer, 
 and the contract is not the same as that which exists under 
 ordinary circumstances ; and, as the contract is not the same, 
 the liability is different. It may be said that, if the carrier, 
 through its servants or agents charged with the duty of receiv- 
 ing baggage, accept as baggage, articles of merchandise, or 
 other property not personal baggage within the legal meaning 
 of the term, knowing the nature of the property, they become 
 liable therefor as baggage; 2 and according to the case first 
 cited in the preceding note, this is the rule, even though the 
 passenger fraudulently procured them to accept it as such. 
 
 1 Great Northern Kail. Co. v. Sbep- tion of a common carrier. Hannibal, 
 herd, 8 Exch. 30; 7 Rail. Cas. 310; &c. R. R. Co. v. Swift, 12 Wall. 
 21 L. J. Exch. 286. See Waldron v. (U. S.) 262 ; Butler v. Hudson River 
 Chicago, &c. R. R. Co., 1 Dakota, R. R. Co., 3 E. D. S. (N. Y. C. P.) 
 351 ; Ross v. Missouri, &c. R. R. 571. A trunk or valise containing 
 Co., 4 Mo. App. 582, where this rule samples of merchandise belonging to 
 is adopted and well illustrated. a merchant, but taken along by an 
 
 2 Ross v. Missouri, &c. R. R Co., agent to be used in procuring orders 
 ante ; Waldron v. Chicago, &c. R. R. for similar goods, is not baggage for 
 Co., ante. But contra, see Blumanth which a carrier is liable, even though 
 v. Fitchburg R. R. Co., 127 Mass. he has checked it as baggage, but in 
 322. If a carrier accepts and trans- ignorance of its contents. Stimson v. 
 ports as baggage for a passenger, arti- Connecticut River R. R. Co., 98 
 cles of merchandise, knowing them to Mass. 83. 
 
 be such, he assumes thereto the rela- 
 
WHO ARE COMMON CARRIERS. 139 
 
 SEC. 66. Actual Knowledge upon Carrier's Part. — To ren- 
 der a railway company or common carriers liable in such a 
 case, however, it is necessary to attach them or their servants 
 with actual knowledge that the thing carried was merchandise, 
 and not personal luggage. It is not enough to show that 
 there was sufficient apparent upon the article carried to have 
 directed their attention to it, and to have caused them to 
 make inquiries. In the case of Cahill v. The London and 
 North-Western Railway Company, 1 it appeared that the plain- 
 tiff had taken to a station a box labelled " glass," and had 
 given it to a porter, who had placed it in the luggage van ; in 
 the course of the journey it was lost, and the plaintiff brought 
 the action to recover its value. The box contained merchan- 
 dise, and not passengers' luggage ; but it was contended, on 
 behalf of the plaintiff, that the fact of the box being labelled 
 " glass " was enough to indicate to the defendants that it con- 
 tained merchandise, and that, as they accepted it without 
 further charge, they were responsible. Judgment was given 
 for the defendants, and Erle, C. J., said : " It seems to me 
 that it would be introducing a rule most pernicious to public 
 convenience that a railway company, to avoid being fixed with 
 liability, which, according to their regulations, they do not 
 intend to take, should be bound to make inquiries where a 
 package is brought which appears likely to contain merchan- 
 dise, and, if they do not make those inquiries, that they 
 should be taken to know the contents of such package." The 
 whole court held that the company had not knowledge that 
 this was merchandise by the fact of the box being so labelled, 
 and this decision was upheld by the Exchequer Chamber. 2 
 
 SEC. 67. Custody of Luggage by Passenger. — There is One 
 other question with regard to the liability of common carriers 
 for the luggage of passengers, which is of importance. It has 
 been more than once held that the fact that the owner of the 
 luggage is present during the transit, or that he sends his 
 servant to look after it, does not affect the responsibility of 
 the carriers. We have seen that in Robinson v. Dunmore, 
 
 1 30 L. J. C. P. 289; 10 C. P. u. s. 154. 
 
 2 31 L. J. C. P. 271. 
 
140 THE LAW OP CAERIERS. 
 
 Chambre, J., said : " It has been determined that if a man 
 travel in a stage-coach, and take his portmanteau with him, 
 though he has an eye on the portmanteau, yet the carrier is 
 riot absolved from his responsibility." x In another case it 
 has been decided that the luggage of a passenger by railway, 
 although never delivered to any servant of the company, but 
 kept by the passenger during the journey, is nevertheless in 
 point of law in the custody of the company, so as to render 
 them responsible for its loss. 2 And the doctrine laid down 
 with regard to stage-coaches by Chambee, J., was repeated 
 with regard to railway trains in the case of Le Conteur v. The 
 London and South- Western Railway Company. 3 But this is 
 not the rule in this country, 4 except where the carrier inter- 
 feres with the baggage in some manner. 6 
 
 Sec. 68. Implied Modification of Contract. — The case of 
 Brind v. Dale 6 suggested that under certain circumstances a 
 common carrier might exercise his calling under a modified 
 contract, even where that modification was only implied. In 
 that case it was left to the jury to say whether the goods were 
 delivered to the defendant as a common carrier, or whether 
 the fact that the owner of the goods having promised to fol- 
 low the defendant's cart and look after the luggage, did not 
 show that the goods were put into the cart under a contract 
 modified to the extent of the plaintiff's promise. If that case 
 was correctly decided, it would seem that the circumstance 
 of a passenger travelling in the same carriage with his lug- 
 gage would modify the contract of a company, and that the 
 common carrier would to some extent be relieved from his 
 legal liability, in which case the dictum of Chambre, J., and 
 the judgments in the other cases quoted, in so far as they re- 
 late to this particular point, must be regarded as unsatisfac- 
 
 1 Robinson v. Dunmore, 2 B. & P. v. London & South- Western Rail. Co., 
 416. 16 C. B. 24 L. J. C. P. 137. 
 
 2 Great Northern Rail. Co. v. Shep- 4 Tower ». Utica R. R. Co., 7 
 herd, 8 Exoh. 30 ; 7 Rail. Cas. 310 ; Hill, 47. 
 
 21 L. J. Exch. 286. B Kinsley v. Lake Shore, &c. R. R. 
 
 8 35 L. J. Q. B. 40; 12 Jur. n. s. Co., 125 Mass. 54. 
 266; L.R. 1 Q. B. 54; 14W.R.80; 6 8 C & P. 207. 
 13 L. T. n. s. 325. See also Butcher 
 
WHO ARE COMMON CARRIERS. 141 
 
 tory. The subject was considered in the recent case of Talley 
 v. The Great Western Railway Company. 1 The plaintiff in 
 this case was a passenger by the defendants' railway upon a 
 return journey from Cheltenham to Reading. He had, at his 
 own request, his portmanteau put into the same carnage with 
 him. At Swindon the train stopped, as all trains did, to allow 
 the passengers to get refreshments, and remained there ten 
 minutes. The plaintiff left the carriage he was in, and upon 
 returning to the train failed to find it. The carriage he had 
 travelled from Cheltenham to Swindon in remained part of 
 the train until it reached Paddington. The plaintiff com- 
 pleted his journey in another carriage of the same train, and 
 afterwards obtained his portmanteau, from which, however, a 
 portion of its contents had been taken. The contents had 
 been stolen by some one in the carriage after the train left 
 Swindon and before it arrived in London. The verdict in the 
 county court was given for the plaintiff. A new trial was 
 granted, and was heard before a deputy judge and a jury, 
 when the verdict was for the defendant. It was appealed 
 against, and in giving judgment Willes, J., said: "With 
 respect to articles, which are not put in the usual luggage van, 
 and of which the entire 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 facta 
 the entire control of them whilst the carriage is moving, the 
 amount of care and diligence reasonably necessary for their 
 safe conveyance is, in fact, considerably modified by the cir- 
 cumstance of their being, during that part of the journey in 
 which the passenger might, under ordinary circumstances, be 
 expected to be in the carriage, intended by both parties to be 
 under his personal inspection and care. To such a state of 
 tilings the rule which binds common carriers absolutely to 
 insure the safe delivery of the goods, except against the act 
 of God or the Queen's enemies, whatever may be the negli- 
 gence of the passenger himself, has never, that we are aware 
 of, been applied." 
 
 1 19 "W. K 154; 23 L. T. n. s. 413; L. K. 6 0. P. 44. 
 
142 THE LAW OP CARRIERS. 
 
 SEC. 69. When Wide Liability attaches. — "There is great 
 force in the argument that when articles are placed with the 
 assent of the passenger in the same carriage with him, and so 
 in fact remain in his own control and possession, the wide 
 liability of the common carrier, which is founded on the bail- 
 ment of the goods to him, and his being intrusted with the 
 entire possession of them, should not attach, because the rea- 
 sons which are the foundation of the liability do not exist. 
 In such cases the obligation to take reasonable care seems 
 naturally to arise, so that when loss occurred it would fall on 
 the company only in the case of negligence in some part of 
 the duty which pertained to them ; " and he was of opinion 
 that " the circumstance 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, in- 
 stead of in the ordinary luggage van, where it would have 
 been under such control, it was intended by both parties, 
 and was an implied term in the contract of carriage, that, in 
 return for the convenience of having his luggage at hand, the 
 passenger should, during the journey, take, such care of his 
 own property as might be expected from an ordinarily prudent 
 man, and should not by his own negligence expose it to more 
 than the ordinary risk of luggage carried in a passenger car- 
 riage, and that the finding of negligence in not using such 
 reasonable care was sustained by the evidence. Upon the 
 ground that the liability of the company was, under the cir- 
 cumstances, modified by the implied condition that the pas- 
 senger should use reasonable care, and that the loss was 
 caused by his neglect to do so, and would not have happened 
 without such negligence, we think that the judgment of the 
 county court should be reversed, and the verdict entered for 
 the defendants." 1 
 
 1 As to a ferryman who takes pas- Office, was regarded as an act which 
 
 sengers along with his luggage, see limited the ordinary responsibility of 
 
 Walker v. Jackson, 10 M. & W. 161. the carriers of letters ; formerly a pri- 
 
 The statute 12 Charles II. c. 35, vate carrier of letters was exactly in a 
 
 which established a General Post similar position to a carrier of any 
 
WHO ARE COMMON CARRIERS. 143 
 
 SEC. 70. Limitation of Liability for Luggage. — Another case 
 of some importance may be referred to here. In that case a 
 passenger by an English vessel, -which belonged to an English 
 company, from Southampton to the Mauritius, via Alexandria 
 and Suez, took and signed a ticket, in the body of which the 
 engagement of the company was stated to be subject to the 
 conditions and regulations indorsed thereon, among which 
 was the clause : " The company does not hold itself liable for 
 damage to, or loss, or detention of, passengers' baggage." A 
 package of baggage belonging to the plaintiff, a passenger, 
 being lost during the Toyage, the passenger sued the company 
 in the Supreme Court at Mauritius for damages for the loss, 
 and it was held that it was a contract to be interpreted by the 
 law of England, the place where the contract was made ; and 
 it was further held that the company, as carriers at common 
 law, had a power to limit the liability imposed upon them by 
 the law by special contract, and that the limitation imposed 
 by the stipulations indorsed on the ticket with respect to any 
 loss, exempted the company under the circumstances above 
 alluded to. 1 Sufficient has been said to indicate who are to 
 
 other thing, but in the case of Lane branch of police, it puts the whole 
 v. Cotton, 1 Ld. Raym. 546, it was correspondence of the kingdom (for 
 directed that the Postmaster-General the exceptions are very trifling) under 
 ■was not responsible for the loss of Government, and intrusts the manage- 
 a letter containing Exchequer bills, ment and direction of it to the crown. 
 And Lord Mansfield, in the case of There is no analogy, therefore, be- 
 "Whitfleld v. Despencer, ■ Cowp. 754, tween the case of the postmaster and 
 held that there was no analogy be- a common carrier." 
 tween the postmaster and a common * Peninsular & Oriental Steam 
 carrier. He said: "The comparison Navigation Co. v. Sand, 3 Moore, 
 between a postmaster and a carrier or P. C. C. n. s. 272. See also Mobile, 
 the master of a ship seems to me to &c. R. R. Co. v. Hopkins, 41 Ala. 
 hold in no particular whatsoever. The 486. But such limitation must be 
 postmaster has no hire, enters into no brought to the notice of the passenger 
 contract, carries on no merchandise or in some way, and assented to by him. 
 commerce. But the Post-Office is a Thus, in Woodruff v. Sherrard, 9 Hun 
 branch of revenue, a branch of police (N. Y.), 323, an action was brought 
 created by Act of Parliament. As a to recover for the loss of a box and its 
 branch of revenue there are great re- contents, delivered to the New York 
 ceipts, but there is likewise great sur- Transfer Company as a common car- 
 plus of benefit and advantage to the rier. They were then owned by the 
 public arising from the fund. As a assignor of the plaintiff, -who was his 
 
144 
 
 THE LAW OP CARRIERS. 
 
 be regarded as common carriers. Under some circumstances 
 those carriers, even while they carry, are, by the implicit or 
 
 daughter. She was on her way from 
 Rahway, in New Jersey, to the city of 
 Brooklyn, and left her check at the 
 office of the transfer company, at the 
 foot of Courtlandt Street, in the city 
 of New York, to have her baggage, 
 consisting of a box and its contents, 
 taken from the railway company to the 
 place of her destination in Brooklyn. 
 After delivering the check for them to 
 the clerk in the transfer company's 
 office, she started to leave it, when her 
 companion suggested the propriety of 
 having a receipt for it. She then 
 turned to the clerk and requested him 
 to give her a receipt for the check. 
 He wrote out and delivered her a re- 
 ceipt, and also a contract limiting, in 
 terms, the liability of the company in 
 case of loss to the sum of $100, unless 
 further compensation was paid for the 
 additional risk. She received it, sup- 
 posing it to be merely a receipt, and 
 did not read it, or become aware of its 
 contents until after the box and its 
 contents had been lost by the com- 
 pany. When it was delivered to her, 
 nothing was said by the clerk indicat- 
 ing that it was anything more than 
 the receipt applied for by her. Upon 
 these facts the referee held that no 
 contract between the parties had been 
 established, by which the liability of 
 the transfer company was limited to 
 the sum of f 100. He found that the 
 box and its contents were of the value 
 of $330, and for that directed judg- 
 ment in the plaintiff's favor. The de- 
 fendant insisted that the recovery, on 
 these facts, ought not to have exceed- 
 ed the sum of $100. Daniels, J., 
 said : — 
 
 " When the check was delivered to 
 the clerk of the transfer company, the 
 plaintiff's assignor could have refused 
 
 to surrender it on any other terms 
 than that the carrier should be charged 
 with the full measure of its common- 
 law liability concerning it. She had a 
 right to decline to receive a contract 
 of the limited nature of that contained 
 in the instrument delivered to her, 
 and that was the import of her re- 
 quest made to the clerk. It was for 
 a receipt merely, which was probably 
 required for the sole purpose of iden- 
 tifying the transaction in case the 
 property was not delivered.' And 
 when the paper was given to her in 
 response to her request, nothing was 
 said or intimated by the clerk that it 
 was anything different from the instru-' 
 ment asked for ; she was not told that 
 it was a contract as well as a receipt. 
 And the act of passing it over to her 
 without explanation, in compliance 
 with her request that she should sim- 
 ply have a receipt, authorized the in- 
 ference upon her part, that such was 
 its nature and excused her for her 
 omission to read or examine it. In 
 complying with a request for a receipt, 
 persons unacquainted with the modes 
 of transacting business, as this young 
 lady evidently was, would not expect 
 to be handed a special agreement. If 
 the clerk could not properly have 
 given what he was asked for, he 
 should have explained that he could 
 not give a mere receipt without fur- 
 ther compensation for the risk, in case 
 the property exceeded in value the 
 sum of $100. Then the owner would 
 have been in a position in which she 
 could have provided for the complete 
 safety or responsibility of and for her 
 property. By not doing that, but 
 handing her a paper in response to 
 her request for a receipt, and which 
 she was justified by the circumstances 
 
WHO ARE COMMON CARRIERS. 
 
 145 
 
 explicit nature of the contract, made private carriers for hire 
 in relation to the particular transaction. Under other circum- 
 
 iii believing was nothing more than 
 that, she was put off her guard and 
 induced to leave her property under 
 the control of the company, when she 
 might not otherwise have done so. 
 
 "To make a binding contract in 
 such a ease as this requires at least 
 the implied assent of the party receiv- 
 ing the instrument, and that was not 
 made to appear. The fact was the 
 other way, and the referee has so 
 found it. A contract declaring the 
 liability -of the company was not re- 
 quested, but merely a receipt, and it 
 was that, in the absence of everything 
 indicating it to be different, that she 
 must have supposed was handed to 
 her in answer to her request. The 
 minds of the parties did not meet upon 
 the subject of a contract, and the 
 paper received was not accepted as 
 such. The case, for this reason, seems 
 to be within the principle declared by 
 the learned chief judge of the Court of 
 Appeals, in deciding the case of Blos- 
 som v. Dodd, 43 N. Y. 264. It was 
 there said that .' the contract cannot 
 be made by one party. If the travel- 
 ler is informed of the charges gradu- 
 ated by value, he can have a voice in 
 the bargain ; but in this case he had 
 none. While the carrier should be 
 protected in his legal right to limit his 
 responsibility, the public should also 
 be protected against imposition and 
 fraud. The carrier must deal with the 
 public on terms of equality; and if he 
 desires to limit his liability, he must 
 secure the assent of those with whom 
 he transacts business.' The case of 
 Kirkland v. Dinsmore, 62 N. T. 171, 
 contains nothing different from this 
 proposition, and in no way conflicts 
 with what was decided in the other 
 case. It was there said, by Andrews, 
 
 J., in delivering the opinion of the 
 court, that 'it is not claimed that 
 there was any fraud or imposition 
 practised by the defendant's agent. 
 He did not represent that the paper 
 was a bare acknowledgment of the re- 
 ceipt of the package, nor did he do 
 anything calculated to mislead the 
 plaintiff or put him off his guard.' 62 
 N. Y. 178. In the present case the 
 agent did both the acts not shown 
 there, and which it is to be implied 
 would, if they had appeared, have sus- 
 tained the carrier's liability. For in 
 apparent compliance with a simple re- 
 quest for a receipt, he handed her a 
 contract, and did it in such a manner 
 as to induce the belief that it was only 
 the instrument she had asked for. 
 The present case, in this respect, also 
 differs materially from that of Belger 
 v. Dinsmore, 51 N. Y. 166, in which 
 it was 'not shown, nor is there any 
 evidence whatever warranting the in- 
 ference that the wife of the plaintiff, 
 when she took the receipt, did not 
 know, and was not fully informed of 
 what provisions it. contained, and fully 
 understood them.' And for the same 
 reason it cannot be considered as con- 
 trolled by Huntington v. Dinsmore, 
 4 Hun, 66. The existence of the in- 
 strument as a contract was not shown 
 by the evidence. It cannot be inferred 
 that it was intended to be assented to 
 as being anything more than a simple 
 receipt, which was all that the agent 
 was asked to deliver. No implication 
 beyond that can be made from what 
 was shown to have transpired between 
 the parties preceding its delivery and 
 acceptance. The referee was right in 
 the construction he gave to the trans- 
 action, and the judgment should, there- 
 fore, be affirmed." 
 
 10 
 
146 THE LAW OP CARRIERS. 
 
 stances those who do not ordinarily fall under the designation 
 " common carriers," have, by the nature of the contract and 
 the policy of the law, their responsibility enlarged, and be- 
 come common carriers for the nonce. The principles of the 
 law upon this subject have been sufficiently explained, and 
 they will receive further explication and illustration from the 
 cases which will more properly fall under our consideration in 
 subsequent chapters. 
 
DUTY OP COMMON CARRIERS TO RECEIVE GOODS. 147 
 
 CHAPTER V. 
 
 OP THE COMMON-LAW DUTY OP COMMON CARRIERS TO RECEIVE 
 
 GOODS. 
 
 Sec. 71. Duty to receive Goods. Sec. 81. Rule with reference to Accept- 
 
 72. Conditions of Performance. ance. 
 
 73. Room in Conveyance. 82. Reasonable Remuneration. 
 
 74. Payment. 83. Action for refusing to carry. 
 
 75. Innkeepers, their Duty. 84. When Liability arises. 
 
 76. When bound to receive. 85. When Performance must begin. 
 
 77. Modification by Statute. 86. Reason of the Rule of Law. 
 
 78. Rule of Construction. 87. Where a Carrier may receive. 
 
 79. Duty to receive from all who 88. Receiving-house. 
 
 offer Payment. 89. Hours of receiving. 
 
 80. Custom and Election often the 90. Acceptance by Carrier necessary. 
 
 Criterion. 91. Principles of Insurance. 
 
 Sec. 71. Duty to receive Goods. — We have already seen 
 that the common law imposes a duty upon persons professing 
 to carry on the trade of common carriers to receive the goods 
 of any one that offers them, provided the individual offers at 
 the same time a reasonable compensation. 1 It is as important 
 to notice this point in connection with a description of common 
 carriers, as distinguished from private carriers for hire, or 
 those carriers who undertake the duty of a common carrier 
 without looking for or accepting the ordinary remuneration, 
 as it is important to recognize the measure of their responsi- 
 bility in case of the loss of, or injury to, the goods with which 
 they are intrusted. Best, J., thus stated the law and the quali- 
 fication of the absolute rule in the case of Riley v. Home : 2 
 " As the law makes the carrier an insurer, and as the goods he 
 
 1 Monster v. South-Eastern Rail, chants' Bank, 6 How. (U. S.) 341 ; 
 
 Co., 4 C. B. n. s. 676 ; 27 L. J. 308, Lafaye v. Harris, 13 La. Ann. 553 ; 
 
 C. P. ; Crouch v. Great Northern Cole v. Goodwin, 19 Wend. (N. Y.) 
 
 Rail. Co., 11 Exch. 742; Norton v. 261. 
 Tibbett, 15 Ad. & El. 428 ; New Jer- 2 5 Bing. 217. 
 sey Steam Navigation Co. v. Mer- 
 
148 THE LAW OP CARRIERS. 
 
 carries may be injured or destroyed by many accidents, against 
 which no care on the part of the carrier can protect them, he 
 is as much entitled to be paid a premium for his insurance of 
 their delivery at their place of destination as for the labor and 
 expense of carrying them there. He must take what is offered 
 to him to carry, to the place to which he undertakes to convey 
 goods, if he has room for it in his carriage." 1 
 
 SEC. 72. Conditions of Performance. — Here there are two 
 important qualifications of the compulsory duty of acceptance 
 of goods. First, he is not bound to convey goods to any 
 place to which they may be addressed, but his past habit will 
 be the criterion by which one is to judge of the extent of his 
 duty. If he is in the habit of carrying goods from A to B, 
 there is no duty incumbent upon him of carrying a parcel, 
 even if it be such a parcel as he ordinarily conveys, to C, how- 
 ever slightly he might have to deviate from his ordinary road 
 to execute the commission. 2 
 
 Sec. 73. Room in Conveyance. — Another point is, that he 
 is not to be compelled to carry goods, if the vehicle which he 
 ordinarily employs for the transportation of goods is not able 
 to contain the article which is offered. He has no duty to 
 provide extra carts or carriages to satisfy the extra demands 
 that may be made on them. 3 
 
 Sec. 74. Payment. — A third point is, that he is not under 
 the obligation to carry any goods, unless the person who 
 wishes them conveyed offers a reasonable remuneration. 4 
 
 1 But he is only bound to take it carrier at the same time by different 
 when it is offered by the owner or his owners for transportation, and he 
 agent, and has a right to demand pay- can only carry one at once, he may 
 ment of the freight in advance. Pitch give the preference to the perishable 
 v. Newberry, 1 Doug. (Mich.) 1. property over that which is not perish- 
 
 2 Davis v. Garrett, 6 Bing. 716 ; able, and, if either must wait, it should 
 Hales v. London & North-Western be the latter. Marshall v. New York, 
 Rail. Co., IB. & S. 66 ; Crouch v. &c. R. R Co., 45 Barb. (N. Y.) 
 London & North-Western Rail. Co., 502. 
 
 14 C. B. 255. 4 See ante, p. 147 ; Galena R. R. ». 
 
 8 Peet v. Chicago, &c. R. R. Co., Roe, 18 111. 488 ; Skipper v. Penn- 
 
 20 Wis. 594. Where two kinds of sylvania R. R., 47 Penn. St. 338 ; 
 
 property, one of which is perishable Fitch v. Newberry, ante. But he 
 
 and the other not, are delivered to a must insist upon prepayment before 
 
DUTY OP COMMON CARRIERS TO RECEIVE GOODS. 
 
 149 
 
 Common carriers are not to be regarded as philanthropists. 
 They carry goods in order that they may get their living by 
 so doing ; and as it has been found that persons who work 
 honestly for gain are of real service to the community, it is 
 therefore of importance that the community should, by its 
 laws, protect their rights as jealously as it protects those of 
 individuals who contract with them. 
 
 Sec. 75. innkeepers, their Duty. — The common-law duties 
 of innkeepers are exactly similar to those of common carriers. 
 The acts to be performed by these two classes of persons are 
 different, but the principle of the imposed duty is the same. 
 It is the duty of an innkeeper to receive and entertain a guest 
 if he has room in his inn or hotel, just as it is a carrier's duty 
 to convey a parcel if he has room in his cart. 1 That there 
 exists this right to modify the common-law duties, and that 
 this liability may be modified by the circumstances, has been 
 pointed out by Erle, C. J., in the case of M'Manus v. The 
 Lancashire and Yorkshire Railway Company. 2 " If," he says, 
 
 the goods are received, else lie cannot 
 insist upon it. Parcher v. Railroad 
 Company, 14 Rich. (S. C.) L. 181 ; 
 Hannibal, &o. R. R. v. Swift, 12 
 Wall. (U. S.) 262; The David, 5 
 Blatohf. (U. S. C. C.) 266. 
 
 1 Jackson ». Rogers, 2 Show. 
 554.. Innkeepers often combine with 
 the trade of keeping houses of public 
 entertainment that of carrying goods 
 for hire, in which case they are liable 
 for any loss of goods sent to their inn 
 
 , to be forwarded which happens before 
 they are sent off. The two liabilities 
 are combined in such a trade. See 
 Hyde v. Trent Navigation Co., 5 T. R. 
 389. 
 
 2 4 H. & N. 327; 28 L. J. 353, 
 Exch. One of the distinguishing 
 qualities requisite to make a person a 
 common carrier is that he has placed 
 himself in a position where he is bound 
 to accept and carry goods for any per- 
 son who offers, within the usages of 
 his business, and subject to certain 
 
 reasonable limitations ; and the ques- 
 tion as to whether the goods offered 
 come within the class which he is ac- 
 customed to carry is one of fact for 
 the jury. 
 
 A carrier, however, may lawfully 
 refuse to accept or carry goods which 
 are improperly packed, although they 
 belong to the class usually carried by 
 him ; or where they are of a perishable 
 nature, and likely to become worthless 
 before, in the ordinary course of things, 
 they can reach their destination; or 
 where he has good reason to believe 
 that they are of a dangerous nature, 
 The Nitre-glycerine Case, 15 Wall. 
 (U. S.) 524; Union Express Co. v. 
 Graham, 26 Ohio St. 595 ; or where, 
 by reason of a press of business, he 
 will be unable to carry the goods with- 
 in a reasonable time, Peet v. Chicago, 
 ,&c. R. R. Co., 20 Wis. 94; or be- 
 cause the goods are not delivered to 
 him seasonably, or at his usual place 
 of receiving them, Cronkite v. Wells, 
 
150 THE LAW OP CARRIERS. 
 
 " a person chooses to profess to be a common carrier, the law 
 creates a duty to receive things brought for carriage, and he 
 may be liable ex delicto for a refusal to receive. 1 But his duty 
 is regulated according to his will in many respects. He may 
 choose the kind of conveyance, the times for transit, the mode 
 of delivery, the articles that he will profess to carry, what 
 price he will have, when it shall be paid, and the duty to con- 
 vey is always limited by his convenience to carry. 2 This right 
 to qualify the duty of receiving, according to terms and condi- 
 tions fixed by the carrier alone, comprises the right to qualify 
 the common-law duty of insuring safety." And Best, C. J., 
 in a case already quoted, said : " We have established these 
 points, — that a carrier is an insurer of the goods which he car- 
 ries ; that he is obliged, for a reasonable reward, to carry any 
 goods to the place to which he professes to carry goods that are 
 offered to him, if his carriage will hold them, and he is in- 
 formed of their quality and value ; that he is not obliged to 
 take a package the owner of which will not inform him what 
 are its contents, 3 and of what value they are ; that, if he does 
 not ask for this information, or if, when he asks and is not 
 answered, he takes the • goods, he is answerable for their 
 amount ; that he may limit his responsibility, as an insurer, 
 by notice ; but that a notice will not protect him against the 
 consequences of a loss by gross negligence." i 
 
 Sec. 76. When bound to receive. — Further, a carrier is 
 not bound to receive goods until he is ready to carry them. 5 
 But this qualification of the common-law duty of carriers ex- 
 tends even further. We have seen that a learned judge 6 
 expressed the opinion that, as a common carrier was an in- 
 
 32 N. T. 247 ; or if the way is ex- 327, case 330 ; Johnson v. North Mid- 
 posed to extraordinary dangers, by land Rail. Co., 4 Exch. 367. 
 reason of floods or tempests, or from 8 See Great Northern Rail. Co. v. 
 strikes or other popular outbreaks, Shepherd, 8 Exch. 30. 
 Edwards v. Sherratt, 1 East, 604. 4 Riley v. Home, 5 Bing. p. 224 ; 
 
 1 Pickford ». Grand Junction Rail, ante, p. 147. 
 Co., 8 M. & W. 372 ; 10 L. J. Exch. 6 Lane v. Cotton, 1 Ld. Raym. 
 
 342. 652. See also Pickford v. Grand 
 
 a Jackson v. Rogers, 2 Shower, Junction Rail. Co., 12 M. & W. 766. 
 
 6 Best, C. J. 
 
DUTY OF COMMON CARRIERS TO RECEIVE GOODS. 151 
 
 surer, he was entitled to be paid a premium for his insurance 
 besides what he received for his labor, and care, and expense. 
 This principle is really involved in the whole law of the duty 
 of common carriers ; and it follows from this principle, that 
 if, owing to any especial circumstances, the risk of the carrier 
 in transporting the goods is greatly increased, he should be 
 entitled to a higher premium. The object of the law is not 
 to rob one man in order to pay another. If when the circum- 
 stances are known to both parties, and the ordinary risks and 
 dangers of the road are greatly increased, the owner will still 
 transmit his goods, it is only right that he should pay more 
 highly for the insurance of them. 1 
 
 Sec. 77. Modification by statute. — The common-law duty 
 of railway companies is not unfrequently modified by the act 
 under which they are incorporated, or by general statute ; and 
 when the duties, rights, or liabilities of a carrier are thus 
 qualified, the common-law rules to that extent are subverted, 
 and cannot be enforced either for or against him. So far as 
 the receiving of goods is concerned, custom or express notice 
 will regulate the peculiar nature of their carriage, as it does 
 that of other common carriers. 
 
 SEC. 78. Rule of Construction. — It is a rule of construc- 
 tion with regard to these acts, that they are to be construed 
 strictly against the company, and liberally in favor of the pub- 
 lic. The evident reason for this rule is that, when a company 
 has the making of rules by which they are to be bound, they 
 ought to be careful, and will probably be careful, only to make 
 rules with which they are capable of complying. When a 
 company has done so, and entered into a bargain with the 
 public, it is only right that they should be held strictly to the 
 terms of their agreement. As for the construction in favor of 
 the public, there is reason for that too. It is not to be ex- 
 pected that the public is familiar with all the private Acts of 
 Parliament incorporating different railway companies ; and 
 although a man is bound by an agreement which he has entered 
 into, even if his eyes were shut at the time, there is some 
 
 1 See Tyler v. Morrioe, Carth. 485. 
 
152 THE LAW OF CAEEIEBS. 
 
 reason for construing it liberally as against him, if there was 
 a difficulty in opening his eyes. 
 
 SEC. 79. Duty to receive from all who offer to pay the Rea- 
 sonable Charges. — The case of Parker v. Great Western Rail- 
 way Company 1 is instructive in this connection. By the Acts of 
 Parliament under which this company was incorporated, it was 
 provided that the carriage of goods should he reasonable and 
 equal to all persons, and that no reduction or advance should 
 be made either directly or in favor of or against any particular 
 person. The company acted themselves as carriers for the 
 public, and issued certain scales of their charges for carriage 
 of goods, including the collection, loading, unloading, and de- 
 livery of parcels ; and they also carried goods for other car- 
 riers, to whom they made certain allowances, as an equivalent 
 for the trouble of collecting the parcels, such collection being 
 performed by the carriers. But in their dealings with A, a 
 particular carrier, they refused to make such allowances, but 
 were willing to perform for him all the things which formed 
 a consideration for such allowances. In this case it was held 
 that the charges to A were not equal or reasonable. The 
 company, in their transactions with the public, made the fol- 
 lowing distinction as to their charges for carriage. In the 
 case of the public, if there were several packages from one 
 consignor to several consignees, or- from several consignors to 
 one consignee, the charge was upon the aggregate weight. In 
 the case of carriers, if there were several packages for several 
 consignees, the charge was upon the separate weight of each 
 package, unless more than one package belonged to the same 
 consignor (not being the carrier), or was going to the same 
 consignee, in either of which cases the charge was upon the 
 aggregate weight. But in such cases the company recognized 
 the carrier only as the consignor and consignee of the goods, 
 the agent of such carrier, in fact, receiving the goods at the 
 end of the transit. It was held that the company were bound 
 to treat a carrier as the consignor and consignee for all 
 purposes, including the mode of charging in the aggregate. 
 
 1 7 Man. & G. 253; Edwards v. Great Western Hail. Co., 11 C. B. 588. 
 
DUTY OP COMMON CARRIERS TO RECEIVE GOODS. 153 
 
 And it was further held that A, having paid the extra charges 
 in both of the instances above mentioned, might recover the 
 amount of such payments in an action for money had and re- 
 ceived against the company, such payments not being volun- 
 tary, but made in order to induce the company to do that 
 which they were bound to do without requiring such payments. 
 SEC. 80. Custom and Election often the Criterion. — But 
 the custom or election of a railway company forms the criterion 
 in many cases. Thus where, under the Railway Clauses Con- 
 solidation Act, 1 a company had elected to carry goods, it was 
 held that it was subject to the liability which attaches to car- 
 riers at common law, and that only. Therefore it was held 
 that such a company is not bound to carry every description 
 of goods, and between all places on their line, but that the 
 duty only extended to such goods, and to and from such places, 
 as they have publicly undertaken to perform. The conve- 
 nience of the carrier is also to be considered. " At common 
 law," said Parke, B., in giving judgment, " a carrier is not 
 bound to carry for every person tendering goods of any de- 
 scription, but his obligation is to carry according to his public 
 profession. The law is thus stated by Holt, C. J., in Lane v. 
 Cotton : 2 ' Whenever any subject takes upon himself a public 
 trust for the benefit of the rest of his fellow-subjects, he is eo 
 ipso bound to serve the subject in all the things that are within 
 the reach and comprehension of such an office, under pain of 
 an action against him ; and for this see Keilway, 50. If, on 
 the road, a shoe fall off my horse, and I come to a smith to 
 have one put on, and the smith refuse to do it, an action will 
 lie against him, because he has made profession of a trade 
 which is for the public good, and has thereby exposed and 
 vested interest of himself in all the king's subjects that will 
 employ him in the way of his trade. 3 If an innkeeper refuse 
 to entertain a guest when his house is not full, an action will 
 lie against him ;* and so against a carrier, if his horse be not 
 
 1 8 & 9 Yiot. c. 20, § 86. 4 C. B. 555, which shows that the 
 
 2 1 Ld. Baym. 654. authorities do not support this proposi- 
 8 Keilway, 50, pi. 4. See a note tion. 
 
 to the case of Parsons v. Gingell, 4 Dy. 158 ; Godb. 346. 
 
154 THE LAW OF CAEEIEES. 
 
 loaded, and he refuse to take a packet proper to be sent by a 
 carrier ; and I have known such actions maintained, though 
 the cases are not reported.' " Baron Parke went on to say : 
 " A person may profess to carry a particular description of 
 goods only, — for instance, cattle or dry goods, — in which 
 case he could not be compelled to carry any other kind of 
 goods ; or he may limit his obligation to carry from one place 
 to another, as from Manchester to London, and then he would 
 not be bound to carry to or from the intermediate places. 
 Still, until he retracts, every individual (provided he tenders 
 the money at the time, and there is room for the conveyance) 
 has a right to call upon him to receive and carry goods, 
 according to his public profession." 1 
 
 SEC. 81. Rule with reference to Acceptance. — There are 
 some rules with regard to the acceptance of goods, which are 
 founded upon principles which have been approved by general 
 consent, and by the ordinary conduct of mankind. All that 
 our judges in most cases do, is to give expression to a rule 
 which has been implicit in the conduct of men. Thus, that a 
 carrier is entitled to be paid the amount of his hire before he 
 undertakes the responsibility of having the goods in his pos- 
 session, is what was always approved by opinion, and has now 
 had judicial confirmation. 2 A carrier is entitled to demand 
 the payment of that sum which, by common law, he is entitled to 
 claim for the carriage of the goods, before he undertakes the 
 risk and trouble attaching to the custody of them. If that sum 
 is refused, he may avoid his common-law duty and liability, 
 and make terms for the carriage of the goods, exactly as a 
 private carrier for hire may. 3 
 
 1 Johnson v. Midland Bail. Co., It has, however, been held that in an 
 4 Exch. 367, at p. 373. See also action for refusing to pay it is enough 
 Jackson v. Bogers, 2 Shew. 332; to aver readiness and willingness to 
 Munster v-. South-Eastern Bail. Co., pay the hire, without alleging an actual 
 27 L. J. 308 C. P. ; Oxlade v. North- tender. Pickford v. Grand Junction 
 Eastern Bail. Co., 15 C. B. n. s. 680 ; Rail. Co., 10 M. & W. 399 ; Wyld v. 
 Pickford v. Grand Junction Bail. Co., Pickford, 8 M. & W. 443. 
 
 10 M. & W. 399, at p. 422. 8 Per Parke, B., in Wyld v. Pick- 
 
 2 Best, C. J., in Batson v. Don- ford, 8 M. & W. 443. 
 ovan, 4 B. & Aid. 28; 1 P. & D. 4. 
 
DUTY OP COMMON CARRIEES TO RECEIVE GOODS. 155 
 
 SEC. 82. Reasonable Remuneration. — It is, however, to be 
 understood that the payment, which is a condition precedent 
 to the acceptance of the goods for carriage, and the demand 
 which is made, must be reasonable. A man who, by his pro- 
 fession, holds himself out as a servant of the public, has no 
 right to demand exorbitant remuneration for the services 
 which he performs. This case differs from that of a person 
 who only carries to oblige a friend, and who does not under- 
 take to convey goods as an ordinary employment. In such a 
 case it may be presumed that the labor is undertaken at a loss 
 of time or money to the individual, and a higher rate of re- 
 muneration than that which is ordinarily paid may not reim- 
 burse him for the losses he may otherwise incur. But in the 
 case of a common carrier no such presumption arises. It is 
 to be supposed that he can afford to carry at much the same 
 rate of hire as that which is exacted universally by car- 
 riers similarly situated, and which, if it has been found to 
 remunerate them, may, upon the best grounds, be called 
 reasonable. 
 
 Sec. 83. Action for refusing to carry. — The word reason- 
 able, therefore, is to be the criterion of the price which a 
 common carrier has a right to demand ; and if a person 
 brings him goods to be conveyed, and tenders him a reason- 
 able amount of remuneration, and he refuses to convey the 
 goods upon those terms, he will be liable to an action for hav- 
 ing refused. Thus the Grand Junction Railway Company 
 were authorized by their Act of Parliament 1 to carry and 
 convey upon the railway all such passengers, goods, merchan- 
 dise, &c, as should be offered to them for that purpose, and 
 to make such reasonable charges for such carriage and convey- 
 ance as they might from time to time determine on. The 
 plaintiff in this action tendered goods for conveyance by the 
 said company, and offered a sum of money which to the court 
 seemed, under the circumstances, reasonable. The defend- 
 ants, having refused to convey the goods for this sum, were 
 
 1 3 & 4 Will. IV. o. 34, § 156. Power extended by 4 WiU. IV. c. 64, 
 §19. 
 
156 THE LAW OP CARRIERS. 
 
 held liable in the action for the breach of their implied 
 duty. 1 
 
 Sec. 84, "When Liability arises. — When, however, a rea- 
 sonable sum has been paid, or the goods have been given into 
 the custody of the carrier, without the carrier having insisted 
 upon prepayment, his liability for loss or damage at once 
 arises. Whenever the owner has parted with his possession 
 of the goods, when he has ceased to take any care of them, 
 they are wholly in the keeping of the carrier. But, as we 
 have seen, the care which is to be bestowed is, as it were, a 
 constant quantity ; and when the owner still remains in par- 
 tial possession of his goods, as when a passenger travels in 
 the same carriage with his portmanteau, the responsibility is 
 divided, as it were, between the owner and the carrier. Each 
 is bound to be careful ; but when goods are accepted under a 
 condition of the continued care of the proprietor, the common- 
 law liability of the carrier evidently does not arise. 2 When, 
 however, an actual delivery of the goods has taken place, an 
 actual transfer of the responsibility took place at the same 
 time. Even although the transit of the goods may not take 
 place immediately, the duty of the carrier is not postponed 
 until the journey actually begins. 3 His duty is to keep safely 
 and to carry safely. 
 
 Sec. 85. When Performance must begin. — In all cases the 
 liability of the carrier commences at the instant of the accept- 
 ance. As reasonableness is a rule which must guide the 
 
 1 Pickford ». Grand Junction Kail, men as carriers (Forward v. Pittard, 
 Co., 10 M. & W. 399. 1 T. R. 27 ; but see Roskell v. Water- 
 
 2 See also East India Co. v. Pulley house, 2 Stark. 461) ; with regard to 
 Stra. 690. ferrymen and wharfingers who at the 
 
 8 Randleson v. Murray, 8 Ad. & same time carry on the trade of lighter- 
 El. 109 ; Dale v. Hall, 1 Wils. 281 ; men (Maving v. Todd, 1 Stark. 72) ; 
 Boehm v. Combe, 2 M. & S. 172 ; and we have already seen that an inn- 
 Cobban v. Downe, 5 Esp. 41. See keeper who receives goods to be for- 
 also with regard to customary accept- warded is held liable as a carrier 
 ance at wharf or quay, &c, Abbott on (Hyde v. Trent Navigation Co., 5 T.R. 
 Shipp., Pt. 3, c. 3, § 3 ; Fragano v. 389). Grosvenor v. New York, &c. 
 Long, 4 B. & C. 219; Hart w.Baxen- R. R. Co., 39 N. Y. 34; Packard v. 
 dale, 6 Exch. 769 ; Story on Bailm. Getman, 6 Cow. (N. Y.) 757 ; Trevor 
 § 584. The law is the same with re- v. Reus. & Sar. R. R. Co., 7 Hill 
 gard to the acceptance by warehouse- (N. Y.), 47. 
 
DUTY OF COMMON CARRIERS TO RECEIVE GOODS. 157 
 
 amount of remuneration, so reasonableness must be a rule 
 whicb will guide the amount of time which may elapse before 
 the carrier performs the duty he has undertaken. Raphael v. 
 Pickford, 5 M. & G. 558. And the same word will be found 
 to contain a principle for the determination of the amount of 
 time which may elapse between the offer of the goods by the 
 owner and their acceptance by the carrier. Thus, in Crouch 
 v. Great Western Railway Company, 9 Exch. 556, the decla- 
 ration charged the defendants, as common carriers, with hav- 
 ing (refused to receive the plaintiff's goods for carriage within 
 a reasonable time after the plaintiff had tendered them, with 
 the hire, to be carried. The judgment was for the plaintiff in 
 this case, upon the ground that the defendants' plea of the 
 insufficiency of the hire tendered was bad on the facts of the 
 case. 
 
 Sec. 86. Reason of the Rule of Law. — We have found that 
 custom is the rule which, in most instances, must determine 
 the questions which arise with regard to the duty and respon- 
 sibility of carriers ; and the ground for this is, that a man's 
 habits may, under ordinary circumstances, be relied upon as a 
 reason for inferring what his conduct will be in the future, 
 and therefore, when that man is in a public employment, the 
 law should make such conduct as may reasonably be infeYred 
 from his customs a duty, and the breach of that duty a cause 
 of action. 
 
 Sec. 87. Where a Carrier may receive. — In this particular, 
 as in others, the above rule is to guide. Thus, 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 parcels left at a particular 
 place, he is to be held as receiving goods at that place to keep 
 and to carry 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. 1 Where, in an action against a carrier for 
 
 1 Culpepper v. Good, 5 Car. & P. 181 ; 11 Geo. IV. and 1 Will. IV. c. 68, 
 380. And see Gilbert v. Dale, 6 Ad. & § 5 ; and Southern Express Co. v. 
 El. 543; Upton v. Slark, 2 C. & P. Newby, 36 Ga. 635. 
 
158 THE LAW OP CAEEIEES. 
 
 the loss of a parcel, the defendant pleaded that it was not 
 delivered to him to be carried, it was held sufficient for the 
 plaintiff to show that the parcel was delivered to a person and 
 at a house where parcels were in the habit of being left for 
 the carrier. 1 
 
 Sec. 88. Receiving-house. — An inn, where a book was 
 kept for booking parcels by a particular coach, which stopped 
 there regularly to take in and deliver parcels, was held to be a 
 receiving-house for parcels, within 11 Geo. IV. and 1 Will. IV. 
 c. 68, although other coaches were in the habit of stopping 
 there for the same purpose, and it was the habit of the inn- 
 keeper to send the parcels by any coach he chose. 2 And in 
 the case of Davey v. Mason, 3 it was decided that if a message 
 is left at the booking-office of a carrier, requesting him to send 
 his van to a certain inn for the plaintiff's luggage, for the 
 purpose of conveying it to the destination of the carrier's 
 ordinary journey ; and if, in consequence of this message, the 
 carrier's servant and van go to the inn specified in the mes- 
 sage, and the plaintiff's luggage is there put into the carrier's 
 van and afterwards lost therefrom, the carrier is liable for 
 the loss, just as he would be if the plaintiff's luggage had been 
 taken to the defendant's booking-office. It is evident, then, 
 that just as servants can do the actual duty of conveying the 
 goods for a carrier who is liable for the loss or injury caused 
 by their faults or negligence, so can a servant undertake for a 
 master the duty of accepting or receiving goods to be con- 
 veyed, so as at once to invest the master with the whole of 
 the common-law liability and duty which attaches to those 
 who carry on the trade or business of common carriers.* 
 From these cases it appears that a valid delivery can take 
 place, although such a kind of delivery has not been sanctioned 
 by the notices or custom of the carrier. 
 
 Sec. 89, Hours of Receiving. — Certain carriers limit the 
 
 1 Burrell v. North, 2 0. & K. 681. 4 Cobban v. Downe, 5 Esp. 41 ; 
 
 2 Syms v. Chaplin, 1 N. & P. 129 ; Boys v. Pink, 8 Car. & P. 361. See 
 5 Ad. & II. 634 ; 2 H. & W. 411. also Rogers v. Long Island B. B. Co., 
 
 8 1 Car. & M. 45. 38 How. (N. Y.) Pr. 289 ; Adams 
 
 Express Co. v. Haynes, 42 111. 89. 
 
DUTY OP COMMON CARRIERS TO RECEIVE GOODS. 159 
 
 time during which they will receive goods to be forwarded, 
 and if custom has given life to such a notice, the carrier will 
 doubtless be warranted in refusing to receive such goods as 
 are brought to him at a time during which he has, by express 
 notice, laid aside the character of a common carrier. If, how- 
 ever, goods are brought to him at a time or to a place at which 
 he has by notice, confirmed by custom, refused to receive 
 goods for carriage, and without saying anything to the owner 
 he receives the goods, he thereby resumes his character of a 
 common carrier and his liability as such. 1 Thus, though a 
 carrier has been in the habit of receiving goods at a particular 
 booking-office, he may, by accepting goods from an individual 
 whom he meets upon the way, receive the goods so as to raise 
 his common-law liability as an insurer in case of their loss or 
 damage. 
 
 Sec. 90. Acceptance by Carrier necessary to raise Liability. 
 — But there must be either an actual or constructive accept- 
 ance by the carrier, or the contract of bailment" will not arise. 
 The essential element of such a contract is, that the bailee is 
 to be trusted with the goods, and if he is not made aware of 
 the intention of the party to trust the goods to his keeping, or 
 if the party, instead of trusting the goods to him, still retains 
 the care of them, the bailment to -the carrier evidently does 
 not arise, or arises only in a modified form. Thus, where a 
 wharfinger delivered goods, which were sent to a wharf to go 
 on board a vessel, to one of the crew, and did not deliver them 
 to the captain of the vessel, or to some other person that he 
 might reasonably presume to be in authority, it was held that 
 he had not discharged his duty, and he, and not the shipowner 
 (the carrier), was liable for the loss which occurred owing to 
 his negligence. 2 Thus, if a traveller by coach keeps a par- 
 cel in his hand, and under his own care, the carrier is not 
 responsible for its loss, as it has never really been delivered 
 to him, or to any one of his servants authorized to accept 
 
 1 Pickford v. Grand Junction Rail. 2 Leigh v. Smith, 1 Car. & P. 
 Co., 12 M. & W. 766; Phillips v. 638. 
 Earle, 8 Pick. (Mass.) 182 ; Story on 
 Bailm. « 533. 
 
160 THE LAW OF CARRIERS. 
 
 goods to be carried for him. So, in the case mentioned by 
 Story, 1 " where a coat was delivered to the driver of a stage- 
 coach by a person not a passenger, to be delivered to another 
 in a different place, but nothing was paid for the carriage of 
 the coat, and the driver refused to put it on the way-bill, say- 
 ing he had no right to do so ; and there was no proof that the 
 coat ever came to the possession of the proprietor of the stage- 
 coach or any of his agents, except the driver, it was held that 
 there was no delivery of the * coat to such proprietor, and that 
 he was not responsible as a common carrier for the loss 
 thereof." The evident reason for all these rules is, that to 
 charge a carrier with the loss of an article which has never 
 come into his possession, or to hold him responsible for the 
 loss of an article of which he has never had an opportunity of 
 taking care, would be eminently unjust. The rule that a man 
 must insure the safety of an article which is intrusted to him 
 is founded upon a large experience of the usefulness of such a 
 regulation. 
 
 Sec. 91. Principles of Insurance. — The meaning of the 
 whole principle of insurance is involved in the liability which 
 the common law imposes upon carriers. But no principle of 
 insurance could possibly show any excellence in a system by 
 which liabilities could be imposed upon individuals, whether 
 common carriers or not, without their knowledge, or where 
 responsibility could be held to devolve upon them in reference 
 to articles concerning which they knew absolutely nothing. 
 Thus, in a case where the plaintiff received a parcel from G, 
 which he was to book for London, at the office of the defend- 
 ant, who was a common carrier, — and where the plaintiff, 
 instead of carrying out G's instructions, put the parcel into 
 his own carpet-bag, intending to take it to London himself, — 
 the defendants having lost the bag containing G's parcel, it 
 was held that the plaintiff could not recover damages from 
 them in respect of the parcel. 2 Tindal, C. J., said: "The 
 
 1 Bailm. § 533; Olive v. Eames, v. Utica, &c. E. B,., 7 Hill (N.Y.), 
 
 2 Stark. 181 ; Blanoliard v. Isaacs, 47. 
 
 3 Barb. (N. Y.) 388. See Ford v. 2 Miles v. Cattle, 6 Bing. 743 ; per 
 Mitchell, 21 Ind. 54. See also Tower Tindal, C. J., in Miles v. Cattle, 
 
DUTY OP COMMON CARRIERS TO RECEIVE GOODS. 
 
 161 
 
 evidence is, that the parcel was delivered to him (the plain- 
 tiff), not for the purpose of carrying it to London himself, but 
 of booking it at the defendant's office in Stockton. In viola- 
 tion of that trust, the plaintiff thought proper not to deliver 
 the parcel to the defendants, but to deposit it in his own bag, 
 thereby depriving G of any remedy he might have had against 
 the defendants in case the parcel had been lost by them, and 
 becoming himself a wrong-doer towards the defendants by 
 depriving them of the sum they would otherwise have earned 
 for the carriage of the parcel." 
 
 6 Bing. 743. See also East India Co. 
 v. Pullen, 1 Stra. 690; Buckman ». 
 Levi, 3 Camp. 414; Selway v. Hollo- 
 way, 1 Ld. Raym. 46 ; Hyde v. Trent 
 Navigation Co., 5 T. R. 397 ; Davey v. 
 
 Mason, 1 Car. & M. 45; Southern 
 Express Co. v. Niewby, 36 Ga. 635 ; 
 Orange County Bank v. Brown, 
 9 Wend. (N. Y.) 86. 
 
 11 
 
162 
 
 THE LAW OP CARRIERS. 
 
 CHAPTER VI. 
 
 OP THE COMMON-LAW DUTY OF COMMON CARRIERS TO CONVEY 
 AND DELIVER GOODS SAFELY AND SECURELY, OR OF THEIR 
 RESPONSIBILITY. 
 
 Sec. 92. Common Carrier an Insurer. 
 
 93. .The Principle of Law considered. 
 
 94. Same, continued. 
 
 95. Waste. 
 
 96. Applicability of Rule to Carrier 
 by Water. 
 
 Where Act of God does not re- 
 lieve from Liability. 
 
 Where Carrier's Act is Primary 
 Cause of Loss. 
 
 Queen's Enemies, who are'/ 
 
 Pirates. 
 
 Carrier' s Liability in case of Loss 
 where the Loss was otherwise 
 Inevitable. 
 
 Roman Law concerning this 
 Matter. 
 
 97. 
 
 100. 
 101. 
 
 102. 
 
 103 . Negligence which does not cause 
 Loss. 
 Rule where there is Doubt as to 
 
 Cause of Loss. 
 Necessary Evidence. 
 'Act of God" and "Queen's 
 Enemies." — "Natural De- 
 cay." — Leakage. 
 Natural Causes. 
 
 108. Negligent Packing. 
 
 109. Where Responsibility begins 
 
 and ends. m 
 
 110. The Carriage of Cattle. 
 
 111. " Circumstance of Transit " and 
 
 " Necessity of Road." 
 
 104. 
 
 105. 
 106. 
 
 107. 
 
 SEC. 92. Common Carrier an Insurer. — A common carrier 
 is regarded as an insurer by the law of England, and only 
 when the loss or damage to the goods under his care arises 
 from unavoidable accident is he to be regarded as irresponsible 
 for the injury to the bailor. 1 As Chief Justice Best said, 
 " to give due security to property, the law has added to that 
 responsibility of a carrier which immediately arises out of his 
 contract to carry for a reward — namely, that of taking all 
 reasonable care — the responsibility of an insurer." 2 And 
 
 1 Woodleif v. Curteis, 1 Roll. Abr. 
 2 E. pi. 5 ; Coggs v. Barnard, 1 Sm. 
 L. Ca„ 6tli ed., 177; Dale v. Hall, 
 1 Wils. 281 ; Forward v. Pittard, 1 
 T. R. 27 ; Jones on Bailm. 103 ; Pazi J. 99 Exch. 
 v. Shipton, 1 P. & D. 4 ; 8 Ad. & El. 
 963 ilf.W. H. 624. 
 
 2 Riley v. Home, 5 Bing. 217, at 
 p. 220 ; Macklin». Waterhouse, 2M. & 
 P. 319; 5 Bing. 212; Oakley v. Ports- 
 mouth, &c. Co., 11 Exch. 618; 25 L. 
 
COMMON-LAW DUTY OP COMMON CABKIERS, ETC. 163 
 
 Lord Holt, C. J., in the case of Coggs v. Barnard, says : " The 
 law charges this person, the carrier thus intrusted, to carry 
 goods against all events but the acts of God and the enemies 
 of the king. For though the force be never so great, as if an 
 irresistible multitude of people should rob him, nevertheless he 
 is chargeable. And this is a politic establishment contrived 
 by the policy of the law for the safety of all persons, the 
 necessity of whose affairs obliges them to trust this sort of 
 persons, that they may be safe in their dealings. For else 
 these carriers might have an opportunity of undoing all per- 
 sons that had any doings with them, by combining with thieves, 
 &c, and yet doing it in such a clandestine manner as would 
 not be possible to be discovered. And this is the reason the 
 law is founded in that point. 1 
 
 SEC. 93. The Principle of Law considered. — There is un- 
 doubted reason that in order that people may transmit goods 
 with a feeling of confidence as to their safety, there should be 
 some system by which they should be enabled to insure their 
 goods,'but it is to be questioned whether it is equally expe- 
 dient that a carrier should by the mere fact of his office become 
 an insurer, and that he should be entitled to charge the pre- 
 mium for the insurance, together with the charge for his trouble 
 and expense in carrying the goods. There is much to be said 
 in favor of allowing all persons to know what they are paying 
 for, and it might in many instances be better to make it neces- 
 sary that a special contract should be entered into for the 
 insurance of goods sent by a common carrier, while the law 
 might impose a duty upon those carriers who had held them- 
 selves out to the public as insurers as well as carriers, similar 
 to the common-law duty to carry which is imposed upon all 
 common carriers at the present time. At the same time, even 
 if common carriers were not insurers by the mere force of the 
 common law, they would be responsible for all damage caused 
 by their servants, or by others in their employ or confidence, 
 or under their protection, but they would be exempted, except 
 in the case of special contract for insurance, or unless they 
 
 1 Coggs v. Barnard, 2 Ld. Kaym. 909 ; 1 Sin. L. Ca., 6th ed., p. 177. 
 
164 
 
 THE LAW OP CAEEIEES. 
 
 were professed insurers of goods as well as common carriers, 
 from all responsibilities for thefts and for loss occasioned by 
 mere accident or inevitable casualty. Such, however, is not 
 at the present time the law. The principles of the English 
 law, as it at present stands, seem to have been approved in 
 this country. 1 
 
 1 Per Beonson, J., in Hollister v. 
 Nowlen, 19 Wend. (N. Y.) 234 ; and 
 in Eairchild v. Slocum, 19 Wend. (N. 
 Y.) 331 ; and in Cole v. Goodwin, 19 
 Wend. (N. Y.) 251 ; and the opinion of 
 Cowen, J., 21 Wend. (N. Y.) 198. See 
 also Crosby v. Fitch, 12 Conn. 419 ; 
 Hale v. New Jersey Steam Nav. Co., 15 
 Conn. 539 ; Klauber v. Ameiican Ex- 
 press Co., 21 Wis. 21 ; Southern Ex- 
 press Co. v. Newby, 36 Ga. 635. See 
 also Howe v. Oswego, &c. B. B. Co., 
 56 Barb. (N. Y.) 121 ; and in 1869, 
 The -Maggie Hammond, 9 Wall. (U. 
 S.) 435. Common carriers are liable 
 for every injury to property intrusted 
 to them for transportation, except such 
 as arises from inevitable accident, the 
 act of God, public enemies, or the act 
 of the owner. Harrell v. Owens, 1 
 D. & B. (N. C.) L. 273 ; Colt v. Mc- 
 Mechen, 6 John. (N. Y.) 60 ; Moses 
 v. Norris, 4 N. H. 304; Kemp. v. 
 Coughtry, 11 John. (N. Y.) 107; Ewart 
 v. Street, 2 Bailey (S. C), 157 ; Wil- 
 liams v. Grant, 1 Conn. 487 ; Turner 
 v. Wilson, 7 Yerg. (Tenn.) 340; 
 Campbell v. Morse, Harp. (S.C.) 469 ; 
 Gordon v. Little, 8 S. & B. (Penn.) 
 533. And this rule extends to car- 
 riers by water as well as by land. 
 Daggett v. Shaw, 3 Mo. 264 ; Har- 
 rington v. Lyles, 2 N. & McCord (S. 
 C), 88 ; Clark v. Bichards, 1 Conn. 
 54 ; Emery v. Hersey, 4 Me. 411 ; 
 Boyle v. McLaughlin, 4 H. & J. (Md.) 
 291. And the destruction of goods 
 by fire is not such an act of God, un- 
 less occasioned by lightning, as ex- 
 cuses the carrier's liability. Graff v. 
 
 Bloomer, 9 Penn. St. 114 ; Parker v. 
 Elagg, 26 Me. 181 ; Miller v. Steam 
 Navigation Co., 10 N. Y. 431. But 
 the rule does not extend to the time 
 of delivery. Parsons v. Hardy, 14 
 Wend: (N. Y.) 215. A common car- 
 rier is only relieved from liability for 
 such injuries as must be attributed to 
 the act of God, and not merely for 
 such as may be so attributed. If the 
 injury is not the direct effect of the 
 act of God, but is such as might not 
 have happened but for the negligence 
 of man, the carrier is liable. There- 
 fore, where a violent storm caused an 
 unusually low tide, and the carrier's 
 barge, lying at the pier which he used, 
 was pierced by a projecting timber, 
 covered at ordinary tides, and known 
 by the carrier to exist, it was held 
 that he was liable, notwithstanding 
 that his individual negligence in leav- 
 ing his barge there would not have 
 produced the injury, without the con- 
 currence of the act of God and the 
 negligence of the wharf-builder. New 
 Brunswick Co. v. Tiers, 24 N. J. L. 
 697. 
 
 If he has departed from the line of 
 duty, and has violated his contract, 
 and, while thus in fault, and in conse- 
 quence of that fault, the goods are in- 
 jured by an act of God, which would 
 not otherwise have produced the in- 
 jury, then the carrier is not protected. 
 Michaels v. New York, &c. B. B. Co., 
 30 N. Y. 564; Bead v. Spauldmg, 30 
 N. Y. 630. Thus, in the latter case, 
 where there was an unreasonable de- 
 lay on the part of a carrier in forward- 
 
165 
 
 Seo. 94. Same, continued. — In order, then, rightly to under- 
 stand the extent of a carrier's responsibility, it is necessary 
 to understand what occurrences may be said to be the acts of 
 God, or, as Sir William Jones would prefer to call them, 
 " inevitable accidents," 1 and who are the queen's enemies. 
 His objection to the phrase " acts of God " is, that the expres- 
 
 ing goods, and while they were in a 
 railroad depot, at an intermediate 
 point, they were wetted and injured 
 by an extraordinary flood, caused by 
 the damming up of the water in the 
 channel by ice, and setting the same 
 back upon the freight depot, it was 
 held that, the goods having been ex- 
 posed to the peril by the fault and 
 neglect of the carrier, he was not ex- 
 cused. 
 
 In another New York case the de- 
 fendant, a common carrier, received at 
 Albany, from the Hudson River R. R. 
 Co., a box of goods to be transported 
 to Rochester and delivered to the own- 
 ers, for hire. Instead of forwarding 
 the box immediately, it detained the 
 same in its freight house at Albany, to 
 await the rendering of a bill for back 
 charges by the Hudson River R. R. 
 Co. While so detained the goods 
 were injured by being wetted by an 
 unusual and extraordinary rise in the 
 waters of the Hudson River. It was 
 held,— 
 
 1. That the detention of the goods 
 was negligence on the part of the de- 
 fendant ; and that such negligence 
 having concurred in, and contributed 
 to, the injury of the goods, the defend- 
 ant was precluded from claiming the 
 exemption from liability, which the 
 law would otherwise extend to it. 
 
 2. That the judge, on the trial, 
 properly refused to direct a verdict for 
 the defendant, on the ground that the 
 injury complained of was caused by 
 the act of God, and without any fault 
 or negligence on the part of the de- 
 
 fendant ; or because the goods were 
 in the possession of the defendant 
 at the time, in the character of a 
 warehouseman, and not as a common 
 carrier. 
 
 3. That the judge properly in- 
 structed the jury that, under the evi- 
 dence, the defendant was liable as a 
 common carrier for the damages sus- 
 tained by the plaintiffs, and that the 
 only question to be considered was the 
 amount of damages. Michaels v. New 
 York, &c. R. R. Co., 30 N. Y. 564. 
 Nor can he excuse his liability upon 
 the ground that the loss resulted from 
 the act of a third person. Thus, 
 where a carrier employs a tow-boat to 
 tow his vessel, and by the negligence 
 of those in charge of the tow-boat 
 damage is done to the property, and 
 the carrier has not in his contract ex- 
 cepted such risks, he is liable to the 
 owners of the property. Merrick v. 
 Brainard, 38 Barb. (N. Y.) 574. 
 Where property in the hands of. a car- 
 rier is lost or destroyed through his 
 negligence, the fact that it is insured 
 does not pro (auto relieve him from 
 liability. Burnside v. Union Steam- 
 boat Co., 10 Rich. (S. C.) 113. 
 
 A common carrier, or a private per- 
 son, who undertakes for hire to carry 
 and deliver goods safely, is bound to 
 pursue the usual and ordinary route. 
 If he unnecessarily deviates from that 
 route he will be liable for any injury 
 to the goods which may be occasioned 
 thereby. Powers v. Davenport, 7 
 Blackf. (Ind.) 407- 
 
 1 Jones on Bailm. 104, 105. 
 
166 THE LAW OP CARRIERS. 
 
 sion is not seemly and reverent. But there is a stronger argu- 
 ment against the phrase he proposes to substitute, and that 
 is, that it is not adequate ; for it has been held, and properly 
 so, if we read the meaning of the word " insurance " aright, 
 that a common carrier is liable for " inevitable accident," x and 
 there must therefore be some distinction between the occur- 
 rences which would fall under the one head and those which 
 would fall under the other. The case put by Lord Holt, and 
 quoted above, " where the force is never so great, as if an irre- 
 sistible multitude should rob him," might fairly be called an 
 " inevitable accident ; " " nevertheless," says his Lordship, 
 " he is chargeable." Lord Mansfield, in distinguishing be- 
 tween " inevitable accidents " and the " acts of God," calls the 
 latter a " natural necessity," and illustrates what he means by 
 the phrase " natural necessity " by instancing " winds and 
 storms which arise from natural causes," and a " sudden gust 
 of wind." 2 Prom these judicial examples of the casualties 
 which fall under the definition " acts of God," it is evident that 
 physical occurrences which cause loss or damage are to be classed 
 amongst acts of Gtod if they are of so stupendous a character 
 that no act of man could do anything to avoid them. 3 In one 
 
 1 Per Mansfield, C. J., in For- own negligence may have contributed 
 ward v. Pittard, 1 T. E. 27, at p. 33. as a remote cause. Thus, where a 
 
 2 Trent Nav. Co. v. Wood, 3 Bsp. freshet destroyed a railroad bridge and 
 127; Amies v. Stevens, 1 Stra. 128. caused delay in the shipment of cotton, 
 See Ballentine v. North Missouri R. R. and where the cotton was injured by 
 Co., 40 Mo. 491. bad handling, it was held that the 
 
 8 A carrier may always excuse him- company was not liable for the injury 
 self, where the loss or damage resulted caused by delay, as that was via major, 
 from vis major; and where such proof but that it was liable for the injury 
 is given, he is not under obligation to caused by bad handling. Lifford v. 
 show that he was not guilty of any Charlotte, &c. R. R. Co., 7 Rich. (S. 
 negligence in respect thereto. If the C.) L. 409 ; Barber v. Brace, 3 Conn, 
 plaintiff makes any such claim, he must 9. See also Ballentine v. North Mis- 
 prove it. Railroad Co. v. Reeves, 10 souri R R. Co., 40 Mo. 491, where it 
 Wall. (U. S.) 176. The maxim, causa was held that a carrier could not be 
 proxima non remota spectator, applies held responsible for a delay occasioned 
 in such cases ; and if the carrier exer- by the road being blocked up by snow. 
 cised ordinary diligence he is excused, But in all cases it is the duty of the 
 the rule being that where the act of carrier to use reasonable diligence to 
 God is the proximate cause of the loss, relieve himself from obstructions, &c, 
 the carrier is excused, although his occasioned by such causes, and the 
 
COMMON-LAW DUTY OP COMMON CARRIERS, ETC. 167 
 
 sense every event is caused by God ; but yet a carrier would 
 not be exempted from responsibility — indeed, be would be 
 guilty of culpable carelessness — if be allowed goods that 
 would spoil to remain exposed to a shower of rain. Those 
 acts of God, then, only are called " acts of God " in law which 
 cause damage which no act of man could prevent. If " inevi- 
 table accident " was allowed to be an excuse for the loss of 
 goods in the possession of a carrier, and inevitable accident 
 was understood to include robbery, which, under certain cir- 
 cumstances, might be an unavoidable accident, it has been 
 pointed out that the carrier might be in league with the rob- 
 bers, and thus intentionally put the owner's goods in jeopardy 
 with a feeling that he was perfectly safe in so doing. Such a 
 result would be disastrous to trade, and it is therefore well 
 that the exceptions to the liability of the insurer should be 
 very few, and that they should be well understood, so that 
 those persons who trust their goods to carriers may know 
 exactly the risk they run. 
 
 Sec. 95. Waste. — In the older books there is a distinction 
 drawn similar to that mentioned above. There, under the 
 head of " Waste," the falling down of a house caused by a 
 tempest, or the burning of a house caused by lightning, is said 
 to be no waste ; but the burning of a house by negligence or 
 by mischance is, according to the same authority, waste. 1 A 
 3imilar distinction is, as we have seen, to be drawn between 
 lets which are and acts which are not the acts of God. Thus, 
 if goods be lost or damaged owing to a storm, a flood, light- 
 ning, or the sudden and unlooked-for death of the servants that 
 vere in charge of them, the carrier would not be held liable, 
 if, however, they were damaged owing to their having been 
 paced in a house which was insecure, and tumbled of its own 
 dwrepit nature, if they were trusted to an insecure ferry-boat, 
 or if they were burned while in the possession of the carrier, the 
 fin not being caused by lightning, the carrier would be held 
 
 burcbn is upon him to show that the R. Co., 18 Iowa, 555 ; Bausemer v. 
 loss it damage resulted from the act Toledo, &c. R. R. Co., 25 Ind. 434. 
 of Gd. Winne v. Illinois Central R. * Co. Litt. 53, a, b. 
 
168 
 
 THE LAW OP CARRIERS. 
 
 responsible for the loss. 1 The case of Forward v. Pittard is in 
 point. Lord Mansfield, in delivering the opinion of the court 
 
 1 The Northern Belle, 9 Wall. 
 (U. S.) 526 ; Cardwell v. New Jersey 
 Steamboat Co., 56 Barb. (N. Y.) 425. 
 If, however, the building, being secure, 
 is destroyed by a tempest, or is set on 
 fire by lightning, or if an earthquake 
 should swallow it up, or prostrate it, 
 the loss would be clearly attributable 
 to the act of God, and the carrier 
 would be exonerated. But if the 
 building should be prostrated byrea-. 
 son of the act of a third person ex- 
 cavating upon an adjoining lot, or 
 should be destroyed by an incendiary 
 fire, or torn down by a mob, the loss 
 and damage, being wholly attributable 
 to the acts of man, would not exonerate 
 the carrier. If by a violent storm, 
 freshet, or other convulsion of nature, 
 obstructions are suddenly thrown 
 across a railway track at a point and 
 under such circumstances that the car- 
 rier could not, by any reasonable de- 
 gree of diligence, have discovered it in 
 season to avoid, whereby the train is 
 wrecked and the goods destroyed, it 
 would seem that, at least, upon the 
 principle of some of the cases, the com- 
 pany would be exonerated. Thus, in 
 South Carolina, it has been held that 
 where a vessel runs upon a snag placed 
 in the channel of a navigable stream 
 by a sudden freshet, the carrier can- 
 not be held chargeable for the loss. 
 Faulkner v. Wright, Rice (S. C), 107 ; 
 Smyrl v. Malin, 2 Bailey (S. C), 421. 
 In Williams v. Gould, 1 Comi. 487, 
 this principle was recognized under 
 the following state of facts. The 
 plaintiffs shipped four hundred and 
 fifty bushels of salt, by a vessel belong- 
 ing to the defendants, from Providence 
 to New York. While the vessel was 
 on her voyage she ran against a hidden 
 rock in the Providence River. At the 
 
 time the injury occurred the vessel was 
 sailing under a moderate breeze, the 
 weather being fair. The vessel, run- 
 ning upon the rock, bilged, and the salt 
 was thereby destroyed. The plaintiff 
 contended that the existence of the 
 rock was well known to people in the 
 neighborhood and those concerned in 
 the navigation of the river ; that the 
 vessel at the time the injury occurred 
 was out of her usual course, and that 
 the master was not acquainted with 
 the navigation of the river, and that 
 there was no pilot on board as was 
 usual, and produced witnesses to prove 
 these facts. The defendant, however, 
 produced witnesses to prove that the 
 existence of the rock was not generally 
 known. The court charged the jury 
 that if they should find from the evi- 
 dence that the rock was generally 
 known, the loss would be imputable 
 to the negligence of the defendants, ; 
 and the plaintiff would be entitled to 
 recover ; but that if they should find 
 that it was not generally known, then 
 the loss was occasioned by the perils 
 of the sea, and the defendants were 
 not liable. Upon appeal, Swift, C. J, 
 said : — ' 
 
 " Common carriers are liable for thej 
 loss of goods intrusted to their care, 
 in all cases, except where the losf 
 arises from the act of God, the enemies 
 of the state, or the default of tie 
 party sending them. Under the tern 
 act of God are comprehended all nis- 
 fortunes and accidents arising fem 
 inevitable necessity, which human tru- 
 denee could not foresee or prev/nt; 
 and in cases of this description ^hey 
 may be liable for a loss arising from 
 an inevitable necessity existing » the 
 time of the loss, if they had been^iiiUy 
 of a previous negligence or n(scon- 
 
COMMON-LAW DUTY OF COMMON CARRIERS, ETC. 
 
 169 
 
 in that case, said : " The question is whether the common 
 carrier is liable in this case of fire. It appears, from all the 
 
 duct, by which the loss may have been 
 occasioned. 
 
 " If the rock on which this vessel 
 struck had been generally known, then 
 it was the duty of the master to have 
 known and avoided it, and the loss 
 would be imputable to his negligence. 
 If the situation of the rock was not gen- 
 erally known, and the master did not 
 actually know it, then if he conducted 
 properly in other respects, and no 
 fault was imputable to him, his strik- 
 ing on the rock would be an act of 
 {•rod, an unavoidable accident, and he 
 would not be liable for the loss. Tor, 
 though the rock had been there for 
 ages, yet if it had never been dis- 
 covered before, it is the same thing 
 as if it had been created and placed 
 there immediately before the acci- 
 dent happened. See M'Arthur v. 
 Sears, 21 Wend. (N. Y.) 190. The 
 charge of the court to the jury on this 
 point was correct. 
 
 " In this case, however, the plain- 
 tiffs offered evidence to prove that the 
 master was ignorant of the navigation; 
 that he had no pilot, as was custom- 
 ary ; and that the vessel went out of 
 the usual course. It does not appear 
 but that the running of the vessel on 
 the rock may be attributed to this neg- 
 ligence. Of course, the court should 
 have submitted these facts to the jury, 
 and should have instructed them that 
 though the situation of the rook was 
 not generally known, yet if they 
 found the other facts to be true, so 
 that the loss was imputable to the 
 negligence of the master, then he 
 was liable for it, and they must 
 find a verdict for the plaintiffs. Tor 
 this reason I would advise a new 
 trial." 
 
 Gould, J., said : " It is very clear 
 
 that a common carrier is liable, under a 
 general acceptance, for all losses, except 
 such as are occasioned by inevitable 
 accident, the act of the public enemies, 
 or the act or default of the bailor him- 
 self. In the case now before the court, 
 neither any act of public enemies, nor 
 any act or default of the plaintiffs, is 
 in question. "With respect to the 
 other ground of exemption (inevitable 
 accident), the defendants are indeed, 
 by an express exception in the bill of 
 lading, excused, so far as regards 
 losses caused by 'dangers of the sea.' 
 This exception, however, does not 
 seem at all to qualify their liability ; 
 for by 'dangers of the sea ' are meant 
 no other than inevitable perils, or ac- 
 cidents, upon that element, and by such 
 perils or accidents common carriers 
 are prima facie excused, whether there 
 is any such express exception or not. 
 In either case, however, it is a condi- 
 tion precedent to their exoneration 
 that they should have been in no de- 
 fault ; or, in other words, that the 
 goods of the bailor should not have 
 been exposed to the peril, or accident, 
 which occasioned the loss by their 
 own misconduct, neglect, or ignorance, 
 lor though the immediate, or proxi- 
 mate, cause of a loss, in any given in- 
 stance, may have been what is termed 
 the act of God, or inevitable accident, 
 yet, if the carrier unnecessarily ex- 
 posed the property to such accident, 
 by any culpable act or omission of his 
 own, he is not excused. I recollect a 
 case put in some book to this effect : 
 That if a .common hoyman unneces- 
 sarily puts to sea under circumstances 
 which render a loss of the goods on 
 board probable, — as in very tempest- 
 uous weather, — he is liable in the 
 event of a loss, although it were im- 
 
170 
 
 THE LAW OP CARRIERS. 
 
 cases for a hundred years back, that there are events for which 
 the carrier is liable independent 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 contract. 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 nature of an 
 insurer. ... In this case it does not appear but that the 
 fire arose from the act of some man or other. It certainly 
 did arise from some act of man, for it is expressly stated not 
 to have happened by lightning. The carrier, therefore, in 
 this case, is liable, inasmuch as he is liable for inevitable 
 accident." 1 
 
 mediately occasioned by the elements 
 over which he had no control. This 
 I take to be law. In the present case 
 the plaintiff claimed,- and attempted to 
 prove at the trial, that the master un- 
 necessarily deviated from the ordinary 
 course ; that he was ignorant of the 
 navigation of the river ; and that it 
 was usual in that navigation to have a 
 pilot (whom he confessedly had not). 
 Now such a deviation would certainly 
 have been misconduct; the alleged 
 ignorance of the master, there being 
 no pilot on board, would have been a 
 species of deficiency in the nature of un- 
 seaworthiness ; and the want of a pilot, 
 where one is, by common usage, em- 
 ployed, and the master ignorant of the 
 navigation, is manifestly a culpable 
 neglect. And as the plaintiffs made it 
 a ground of claim that this misconduct, 
 deficiency, and neglect contributed to 
 occasion the loss, by bringing the prop- 
 erty on board within the reach of the 
 peril, the existence of the facts on which 
 the claim was founded should have beeu 
 left to the jury, and the legal effect of 
 them, upon the supposition of their 
 existence, explained." A similar doc- 
 trine, was held in an early New York 
 case, Colt v. McMechen, 6 John. (N. 
 Y.) 160, where a vessel which was 
 
 sailing in shore under a light wind 
 which, if it had continued, would 
 have carried her safely, failed, and the 
 vessel was thereby run ashore. See 
 also Hays v. Kennedy, 41 Penn. 378, 
 where it was held that a loss resulting 
 from a collision of vessels upon the 
 river without the fault of the master 
 or crew, was such unavoidable danger 
 of river navigation as excused the car- 
 rier under a bill of lading containing 
 this exception. 
 
 1 Forward v. Pittard, 1 T. E. 27. 
 See Abbott on Ship., pt. iv. ch. 6. 
 p. 343 ; Hyde and Another ». Trent 
 and Mersey Navigation Co., 5 T. B.. 
 K. B. 389. But a warehouseman is 
 not answerable for loss by fire. Gar- 
 side v. Trent and Mersey Navigation 
 Co., 4 T. B.. K. B. 581. But see 26 
 Geo. III. c. 86, § 2, which enacts 
 " that no owner or owners of any ship 
 or vessel shall be subject or liable 
 to answer for or make good to any 
 one or more person or persons any 
 loss or damage which may happen to 
 any goods or merchandise whatsoever 
 which, from and after the first day of 
 September, 1786, shall be shipped, 
 taken in, or put on board any such 
 vessel by reason or means of any fire 
 happening to or on board the said ship 
 
COMMON-LAW DUTY OP COMMON CARRIERS, ETC. 171 
 
 SEC. 96. Applicability of Rule to Carrier by Water. — There 
 can be no reason why the rule that is applicable to loss which is 
 caused by fire upon land should not also apply to the carriage 
 of goods upon water, whether the carriage is effected by means 
 of vessels which sail or vessels which are moved by steam. It 
 may be argued that, as ships which are moved by steam require 
 to make use of fire, the same rule should not apply to them 
 that holds with regard to other ships, and that, in case of the 
 loss of the goods which they carry by means of fire, the owner 
 should not be held liable any more than he is if the loss is 
 caused by means of a tempest. But the only inference which 
 can be drawn from these facts seems to us to be that possibly 
 the owner of the steamboat, if the risk of loss by fire is proved 
 to be greater in consequence of the necessary use of furnaces 
 on board of a steamship, might be entitled to charge a higher 
 rate of premium, which the owner of the goods might be will- 
 ing to pay in return for the greater rapidity with which his 
 goods would be carried, and which, in consequence of the time 
 thus saved, he might be enabled to pay without diminishing his 
 profits. In America it has been solemnly decided that the 
 liability of steamboat owners as common carriers extends to 
 destruction by fire on board their boats, and that no exemption 
 exists in favor of those vessels. 1 
 
 Sec. 97. Where Act of God does not relieve from Liability. 
 — But it is evident, from all that has been said, that an act of 
 
 or vessel." But this section does not 286. The Act of Congress of March 
 
 protect shipowners from liability for 3, 1851, provides, however, that no 
 
 loss by fire in the case of freighted owner of any ship or vessel shall be 
 
 goods burned in a lighter employed by liable to answer for any loss or 
 
 them'to take the goods on board their damage which may happen to any 
 
 ship. Morewood v. Pollock, 1 E. & goods shipped by reason of fire on 
 
 B. 743. This act has been repealed board, unless such fire is caused by 
 
 by 17 & 18 Vict. c. 120. See the design or neglect of such owner, with 
 
 case of Oakley v. Port of Portsmouth a proviso that the parties may make 
 
 and the Byde United Steam Packet such contract between themselves on 
 
 Co., 11 Exch. 618 ; 25 L. J. Exch. 99. the subject as they please. Construed 
 
 See also Amies v. Stevens, 1 Stra. 128. and applied, Moore v. American Trans- 
 
 1 Pattonu.Magrath, Dudley (S.C.), portation Co., 24 How. (U. S.) 1; 
 
 184, which case is approved in Swin- Walker v. Transportation Co., 3 Wall, 
 
 dler v. Hilliard, 2 Bich. (S. C.) (U. S.) 150. 
 
172 THE LAW OF CARRIERS. 
 
 God will not under all circumstances relieve the common carrier 
 of his liability. He is by his contract bound to use due care and 
 diligence. 1 If, therefore, the act of God would not have caused 
 damage or loss of the goods but for some carelessness or negli- 
 gence upon the fart of the carrier, the mere fact that the proxi- 
 mate cause of the injury was an act of God will not relieve the 
 carrier of his liability to make good such loss or injury to the 
 owner? A carrier is always bound to use an ordinary amount 
 of forethought and prudence in the exercise of his trust. And 
 if a master of a ship left the harbor when all nautical experi- 
 ence would have warned him to remain in shelter, if he push 
 out to sea in spite of the warnings of others who are in a posi- 
 tion to read the face of the sky, the fact that the ship is lost 
 through the dire force of the tempest, which is an act of God, 
 will not excuse the master for his error, or the proprietors of 
 the ship of their liability for the goods they undertook to carry 
 safely and securely. This is only an instance, but the same 
 principle is universally applicable. 3 
 
 SEC. 98. Where Carrier's Act is Primary Cause of Loss. — 
 Where a carrier goes to meet a danger which can only be due to 
 the act of God, or can only come about in the course of physical 
 nature, the injury or mischief which arises therefrom cannot 
 be said to be caused by the act of God, but by the carelessness 
 or temerity of the carrier. Now this may be brought about in 
 many different ways. If a carrier goes a road that he has been 
 unaccustomed to go, and it should not be so safe as that he was 
 in the habit of travelling, he has gone, as it were, to meet the 
 
 1 Per Manswelb, C. J., in For- 356 ; Bodenham v. Bennett, 4 Price, 
 ward v. Pittard, 1 T. R. 27. 31 ; Lowe v. Booth, 13 Price, 329 ; 
 
 2 See "Williams v. Grant, ante. Smith v. Home, 2 Moore, 18 ; 8 Taunt. 
 8 Siordet v. Hall, 4 Bing. 607; 144; Holt, 643; Beckford v. Crut- 
 
 Davis v. Garrett, 6 Bing. 716. See well, 5 Car. & P. 242 ; 1 M. & Rob. 
 
 Powell v. Layton, 2 N. B. 365 ; Goff 187 ; Dale v. Hall, 1 Wils. 281 ; Cai- 
 
 t>. Clinkard, 1 Wils. 282 ; Ellis v. liff v. Danvers, 1 Peek, 155 ; Hunter 
 
 Turner, 8 T. B. 531; Sutton v. Mitch- v. Potts, 4 Camp. 203; Laveroni v. 
 
 ell, 1 T, B. 18. But see, with refer- Drury, 3 Exch. 166 ; Oakley ». Steam 
 
 ence to this case, 26 Geo. III. c. 86 ; Packet Co., 11 Exch. 618 ; Lyon v. 
 
 Muddle v. Stride, 9 Car. & P. Mells, 5 East, 428 ; Hollingworth v. 
 
 380 ; Birkett v. Willan, 5 B. & Aid. Brodrick, 7 Ad. & El. 40. 
 
COMMON-LAW DUTY OF COMMON CABEIERS, ETC. 
 
 173 
 
 dangers of that road,, and any calamity which he might encoun- 
 ter would be brought about as much by his own act as by the act 
 of God. 1 So, if he delays an unreasonably long time on the 
 
 i Williams v. Grant, ante. This 
 is in obedience to the universal 
 rule that, in order to excuse the 
 carrier, the act of God must be the 
 proximate cause of the loss, Mc- 
 Arthur v. Sears, 21 Wend. (N. Y.) 
 190 ; Mershon v. Hobensack, 22 N. J. 
 L. 372 ; Ewart v. Street, 2 Bailey 
 (S. C), 157; Backhouse v. Sneed, 
 1 Murph. (N. C.) 173 ; King v. Shep- 
 herd, 3 Story (U. S. C. C), 349; 
 Hart v. Allen, 2 Watts (Penn.), 114; 
 and that where human agency inter- 
 venes and operates in conjunction 
 with the act of God, the carrier is not 
 excused, Merritt v. Earle, 29 N. Y. 
 115. Blackbukn, C. J„ in Nugent 
 v. Smith, L. B, 1 0. P. Div. 19, — a 
 case decided since the text of this work 
 was written, — in commenting upon 
 the species of losses and damage 
 which may be said to be occasioned 
 by the act of God, said : " It is 
 obvious, as was pointed out by 
 Loud Mansfield, in Forward v. Pit- 
 tard, 1 T. R. 27, that all causes of 
 inevitable accident — casus fortuitus 
 — may be divided into two classes : 
 those which are occasioned by the 
 elementary forces of nature, uncon- 
 nected with the agency of man or other 
 cause; and those which have their 
 origin, either in whole or in part, in 
 the agency of man, whether in acts of 
 omission or commission, of nonfea- 
 sance or misfeasance, or in any other 
 cause independent of the agency of 
 natural forces. It is obvious that it 
 would be altogether incongruous to 
 apply the term 'act of God' to the 
 latter class of inevitable accident. It 
 is equally clear that storm and tempest 
 belong to the class to which the term 
 is properly applicable. On the other 
 
 hand, it must be admitted that it is 
 not because an accident is occasioned 
 by the agency of nature, and there- 
 fore by what may be termed the 
 'act of God,' that it necessarily fol- 
 lows that the carrier is entitled to im- 
 munity. The rain which fertilizes the 
 earth, and the wind which enables the 
 ship to navigate the ocean, are as much 
 within the term ' act of God ' as the 
 rainfall which causes the river to burst 
 its banks and carry destruction over a 
 whole district, or the cyclone that 
 drives a ship against a rock and sends 
 it to the bottom. Yet the carrier, 
 who by the rule is entitled to pro- 
 tection in the latter case, would clearly 
 not be able to claim it in case of dam- 
 age occurring in the former. For here 
 another principle comes into play. 
 The carrier is bound to do his utmost 
 to protect the goods committed to his 
 care from loss or damage ; and if he 
 fails herein, he becomes liable from the 
 nature of the contract. In the one 
 case he cau protect the goods by the 
 proper care ; in the other it is beyond 
 his power to do so. If by his default, 
 in omitting to take the necessary care, 
 loss or damage ensues, he remains re- 
 sponsible, though the so-called ' act of 
 God ' may have been the immediate 
 cause of the mischief. If the ship is 
 unseaworthy, and hence perishes from 
 the storm which otherwise it would 
 have weathered ; if the carrier, by undue 
 deviation or delay, exposes himself to 
 the danger which he otherwise would 
 have avoided, or if by his rashness he 
 unnecessarily encounters it, as by put- 
 ting to sea in a raging storm, the loss 
 cannot be said to be due to the act of 
 God alone, and the carrier cannot have 
 the benefit of the exception." As to 
 
174 
 
 THE LAW OP CARRIERS. 
 
 journey, and it is proved that but for such unreasonable waste 
 of time he would have been able to deposit the goods in safety, 
 
 the effect of deviation, see Powers v. 
 Davenport, 7 Blaokf. (Iud.) 497; Ex- 
 press Company v. Kountz, 8 Wall. 
 (U. S ) 342. 
 
 This question was carefully consid- 
 ered by the Supreme Court of Con- 
 necticut in Crosby v. Fitch, 12 Conn. 
 410. In that case the defendants, who 
 were common carriers by water between 
 Norwich and New York, undertook to 
 carry for the plaintiffs fifty-two bales 
 of cotton from New York to Norwich. 
 The usual route of vessels was through 
 Long Island Sound, in summer and 
 winter. In the winter of 1836 the 
 navigation of the Sound was obstructed 
 by ice for a longer period than usual, 
 to wit, from January to March, and 
 in February the defendants, without 
 waiting for the ice in the Sound to 
 break up, took the outside passage by 
 way of the open sea, and in a severe 
 storm the cotton was thrown overboard 
 to save the vessel and crew. It was 
 not denied that the Sound was frozen 
 over at the time the vessel sailed, so 
 that it was impracticable for the vessel 
 to sail by that route at that time ; but 
 the plaintiffs insisted that the defend- 
 ants should have waited until the 
 Sound was freed from the obstruction, 
 and that in taking the route by the 
 open sea they had invited the loss, and 
 were therefore liable therefor. The 
 defendants claimed that if, at the time 
 the vessel sailed with the cotton, the 
 navigation of the Sound was so ob- 
 structed by ice as to render it imprac- 
 ticable for the vessel to proceed by 
 way of the Sound, and there was. a 
 reasonable prospect that the Sound 
 would not be open soon so as to per- 
 mit her to sail through it, the master 
 had a right, at his discretion, to pro- 
 ceed on his voyage on the outside of 
 
 Long Island, and especially if other 
 vessels similarly situated did so, and 
 that it was necessary that the usage to 
 do so should be general or universal 
 in order to justify the master in tak- 
 ing that course. 
 
 The court charged the jury, 1. 
 That the defendants, being owners 
 of the sloop Maria, were common 
 carriers, and as such were liable for 
 all losses or injuries not occasioned 
 by public enemies, the act of God, 
 such as perils of the sea, or the act of 
 the plaintiffs themselves; that if the 
 cotton in question was thrown over- 
 board and lost, in consequence of im- 
 minent danger produced by a storm, 
 to save the vessel and the lives of the 
 crew, it was a loss by the act of God ; 
 and in such case the defendants would 
 not be liable, unless such danger was 
 encountered, or such perils produced, 
 by reason of the unseaworthiness of 
 the vessel, the want of a proper num- 
 ber of able men to manage her, or some 
 negligence or improper conduct of the 
 master or owners. 2. That it was the 
 duty of the master of the vessel to per- 
 form his voyage from New York to 
 New London by the usual and ordinary 
 route; and if, without a reasonable 
 necessity, he neglected this duty, and 
 adopted another and an unusual route, 
 it was such misconduct on the part 
 of the master as would subject the 
 owners of the vessel for all losses 
 sustained by reason thereof; and if 
 the jury believed that the master of 
 the Maria departed from the usual 
 route in pursuing his voyage, without 
 reasonable necessity, as claimed by 
 the plaintiffs, or that the vessel was 
 unseaworthy and not sufficiently 
 manned for such a voyage, and that 
 the loss of which the plaintiffs com- 
 
COMMON-LAW DUTY OF COMMON CARRIERS, ETC. 
 
 175 
 
 it will not be a good defence to an action for the amount of 
 injury done to the goods of an owner who intrusted them to 
 
 plained was occasioned thereby, they 
 ought to render a verdict for the plain- 
 tiffs; and that the fact that Long 
 Island Sound was obstructed by ice, 
 under the circumstances claimed by 
 the defendants, did not constitute such 
 necessity as would justify the master 
 in prosecuting his voyage by an un- 
 usual route, on the south side of Long 
 Island, unless a usage was proved to 
 exist sufficient to justify it. 
 
 3. That no practice or usage for 
 vessels bound from New York to New 
 London and Norwich, and ports to 
 the eastward, to perform their voyage 
 on the south side of Long Island when 
 the Sound is frozen and the navigation 
 thereof obstructed, would justify the 
 master in prosecuting his voyage in 
 that manner, instead of waiting in New 
 York until the navigation of the Sound 
 became free, unless such usage was 
 general, and of so long standing as to 
 have become generally known. But 
 if such usage was general, and well 
 known, the master had a right and 
 would be justified in prosecuting such 
 voyage. 
 
 4. That the fact that insurance had 
 been effected upon the cotton- in ques- 
 tion, and that the plaintiffs had, before 
 the commencement of this action, de- 
 manded payment of the insurance 
 office for the loss sustained, furnished 
 no defence to this action. 
 
 The jury returned a verdict for the 
 plaintiffs ; and the defendants moved 
 for a new trial. 
 
 In passing upon the question of 
 deviation and its effect upon the lia- 
 bility of the carrier, Church, 0. J., 
 said : — 
 
 " It was claimed by the defendants 
 that if the cotton was thrown over- 
 board to save the vessel and the lives 
 
 of those on board, this was a loss by 
 dangers of the seas, within the excep- 
 tion of the bill of lading, and not the 
 consequence of the master's miscon- 
 duct. If this were all, this claim of 
 the defendants could not be resisted ; 
 and so the jury were instructed. This 
 raised the question of deviation, which 
 the plaintiffs insisted the master had 
 been guilty of ; for if there had been 
 a deviation in the voyage from New 
 York to New London and Norwich, 
 by reason of which the storm was en- 
 countered and the danger incurred, it 
 was such misconduct as would subject 
 the defendants, and deprive them of 
 the justification which they would have 
 had if the same loss had been incurred 
 in the prosecution of a voyage properly 
 conducted. 
 
 " There was a deviation, if the mas- 
 ter without reasonable necessity, either 
 physical or moral, departed from the 
 usual route of vessels between the 
 ports of New York and New London ; 
 and of such deviation freighters, as 
 well as insurers, may take advantage. 
 3 Kent's Com. 165 ; Williams v. Grant, 
 1 Conn. 492 ; Davis v. Garrett, 6 Bing. 
 716 ; Bead v. Commercial Insurance 
 Co., 3 Johns. (N. Y) 348; Urqu- 
 hart v. Barnard, 1 Taun. 456 ; Hughes 
 on Ins. 197. It was conceded in this 
 case, and the fact is too notorious for 
 dispute, that the usual track of vessels 
 from New York to New London and 
 other Eastern ports is through Long 
 Island Sound, both summer and win- 
 ter. Was the master, in the present 
 instance, justified in departing from 
 this route, and performing his voyage 
 through the open sea, on the south 
 side of. Long Island, in the month of 
 February.'' Was there any reasonable 
 necessity for this? We think there 
 
176 
 
 THE LAW OP CARRIERS. 
 
 him to be carried, to say that the injury was caused by a flood, 
 which was the act of God. The flood was the act of God, but 
 
 was not. The claim is, that the navi- 
 gation of the Sound was obstructed by 
 ice, and so continued longer than had 
 been usual in former seasons. Still 
 we see no necessity for the sailing of 
 this vessel while these obstructions 
 continued. The obstruction was of 
 such a nature that the master and all 
 concerned knew that at a day not very 
 remote it must be removed. This was 
 known when the goods were placed on 
 board. There was no contract which 
 rendered it the duty of the master to 
 sail by a given time, or to complete 
 his voyage before a specified day. And 
 if there had been, the freezing of the 
 Sound, and the unusual continuance of 
 the obstruction, was such an act of 
 God as would probably have justified 
 a longer stay in the port of departure. 
 The distinction is a very obvious one 
 between the present case and one in 
 which a vessel already on her voyage 
 and in. transitu, departs from the usual 
 route by reason of obstructions of this 
 nature, or of blockades, &c. In such 
 cases the master must act ; a necessity 
 is thrown upon him ; and if he is gov- 
 erned by a sound discretion, he stands 
 justified. But here it may as well be 
 claimed that the master would be justi- 
 fied in leaving a safe port during the 
 existence of a violent tempest, or in 
 the face of blockading or embargo re- 
 strictions, because it might be uncer- 
 tain how long these impediments would 
 be in his way. The port of destina- 
 tion in this voyage was Norwich ; and it 
 is conceded that the obstruction caused 
 by iee to the navigation of the river 
 Thames usually continues several days 
 longer than the Sound continues frozen. 
 The master knew, therefore, that he 
 could not complete his voyage ear- 
 lier in consequence of the course he 
 adopted. 
 
 " But it is said that the danger from 
 fire, thieves, &c, while lying in the 
 port of New York, created such a 
 necessity of sailing as justified the 
 master in taking the outside passage. 
 It is true that danger of this sort to 
 some extent existed, and does always 
 exist, in all ports, and perhaps very 
 nearly as much at one port as another, 
 — as much at Norwich and New Lon- 
 don as at New York. This pretended 
 danger certainly could not be esteemed 
 imminent or uncommon, and could 
 not justify any unusual or hazard- 
 ous experiment. Oliver v. Maryland 
 Insurance Co., 7 Cranch (U. S.), 487. 
 No fact appears from which we can in- 
 fer any necessity for the sailing of this 
 vessel on the outside of Long Island; 
 and by adopting that route we think 
 the master was guilty of a deviation. 
 It is claimed, to be sure, that this was 
 a question of fact, and as such ought 
 to have been submitted to the jury. 
 We have ever supposed that, upon 
 given facts, whether deviation or not, 
 was a question of law, and so we find 
 it treated in all the cases. Suydam ». 
 Marine Insurance Co., 2 Johns. (N.Y.) 
 138 ; Graham v. Commercial Insur- 
 ance Co., 11 Johns. (N. Y.) 352; 
 Brown v. Betts, 9 Cow. (N. Y.) 208; 
 Newell v. Hoadley, 8 Conn. 381. 
 
 " Although it was not denied that 
 the general usage of vessels bound 
 from New York to New London and 
 Eastern ports was to sail through 
 Long Island Sound, as well in the 
 winter as at other seasons, yet the 
 defendants claimed that there was to 
 some extent a practice for such vessels, 
 when the Sound was obstructed by 
 ice, to sail on the south side of the 
 island, or at least that the exceptions 
 from the general usage were so fre- 
 quent as that the master in the present 
 
COMMON-LAW DUTY OP COMMON CARRIERS, ETC. 
 
 177 
 
 the negligent delay which exposed the goods to it was the act 
 of the carrier. The act of God alone then will not excuse, — 
 whether it be "perils of the sea," "dangers of the river," a 
 "want of seaworthiness," 1 — unless it can be shown that no 
 gross negligence upon the part of the carrier contributed to ex- 
 pose the goods injured or lost to the dangers by means of which 
 they suffered. These rules are so well established that it seems 
 unnecessary to do more than to mention them in this place, 
 as their principle has already been fully explained. It must 
 always be a question for the jury to decide whether the loss or 
 injury done to goods while in the possession of a carrier has 
 resulted from natural causes which followed upon misconduct, 
 negligence, or incompetence upon his part, or upon that of his 
 servants or agents. And in many cases there must be the 
 utmost difficulty in arriving at a satisfactory answer to this 
 question. 
 
 case could take the outside voyage 
 without being guilty of a deviation. 
 On this point the jury were instructed 
 that no practice or usage for such ves- 
 sels to perform their voyages on the 
 south side of Long Island, when the 
 Sound is frozen, and the navigation 
 for that season obstructed, would j ustify 
 the master in prosecuting his voyage 
 on said south side, instead of waiting 
 in New York until the usual naviga- 
 tion became free, unless such usage was 
 general, and of so long standing as to 
 have become generally known. 
 
 "If the question in the case had 
 been one of care and prudence merely, 
 perhaps such partial usage might have 
 been material to show a want of gross 
 negligence on the part of the master; 
 but that was of no avail to show there 
 had been no deviation. Freighters 
 and insurers, in all their commercial 
 transactions, are presumed to act and 
 to contract in reference to known and 
 general usage, and to submit to it ; 
 and such general usage may be well 
 enough said to become a part of all 
 
 their contracts. And if without con- 
 sent a partial practice is substituted as 
 governing a voyage or other com- 
 mercial operation, it operates as inter- 
 posing a new contract, not agreed to 
 by the parties, and perhaps as a fraud. 
 Indeed, usage should not be regarded 
 at all, unless it be of such a char- 
 acter as may be supposed to influence 
 parties; and none can be ordinarily 
 presumed to do this but such as is 
 public and continued. And there- 
 fore it is not sufficient to prove a few 
 instances, not amounting to general 
 practice, as an excuse of what otherwise 
 would have been a deviation. Martin 
 v. Delaware Insurance Co., 2 Wash. 
 (U. S. C. C.) 254 ; 1 Condy's Marsh, 
 on Insurance, 186, note ; Hughes on 
 Insurance, 145 ; Gabay v. Lloyd, 3 
 B. & C. 793; Trott v. Wood, 2 Galli- 
 son, 444; Barber v. Brace, 3 Conn. 
 10 ; Lawrence v. Stonington Bank, 
 6 Conn. 521 ; Gibson v. Culver, 17 
 Wend. (N. Y.) 305." 
 
 1 The Niagara ». Cordes, 21 How. 
 (U. S.) 7. 
 
 12 
 
178 THE LAW OF CARRIERS. 
 
 Sec. 99. Queen's Enemies, Who are?— 7 The next question 
 which arises with regard to the limitation of the insurance lia- 
 bility of a common carrier is, who are to be regarded as the 
 queen's enemies ? Those who steal are certainly enemies to 
 the state to which they belong, yet we have seen that the policy 
 of the law has made it refuse to recognize loss arising from 
 theft, 1 as in any way exculpating the carrier, or freeing him 
 from the liability to make good the loss. This rule had its 
 origin in more troublous times than those in which we live ; 
 but although order is not in the habit of being rudely broken, 
 although our highways are to some extent hedged in from dan- 
 ger by the efficiency of some of our institutions, there seems 
 little reason to devise a change in this respect, except in the 
 direction which has been indicated on a previous page ; 2 and 
 it is to be remembered that many things which, at first sight, 
 seem to be hardships, are in reality nothing of the sort, as 
 people can, and do, so suit their actions to their circumstances 
 as to make what might seem unjust perfectly equitable. Thus, 
 in reference to this very subject of the insurance of safety 
 against robbers, or losses by theft, which devolves by law upon 
 a carrier, it might be very unjust if the carrier was not made 
 aware that such was his liability ; but as he is aware of the 
 risks, he has an opportunity of proportioning his charges in 
 such a way that he may be enabled to make good the losses of 
 his customers, at the same time that he has fair remuneration 
 for his trouble, and a fair interest for the capital he has ex- 
 pended. , 
 
 Sec. 100. Pirates. — But law does not look upon criminals 
 as " enemies of the Queen," in so far as the question of the 
 liabilities of common carriers goes, but confines that phrase 
 to public enemies with whom the state is at open war. 8 But 
 pirates on the high seas are also to be regarded as enemies of 
 the state and of mankind. 4 The reason for this is, that, to 
 some extent, the government of a country must be looked 
 upon as the bailee of the goods of all its subjects, for the pur- 
 
 1 Gibbon v. Paynton, 4 Burr. 2299. 4 Pickering v. Barclay, 2 Roll. Abr. 
 
 2 Ante, p. 120. 248, & Style, 132 ; Barton v. "Wolli- 
 8 See Story on Bailm. § 526. ford, Comb. 56. 
 
COMMON-LAW DUTY OP COMMON CARRIERS, ETC. 179 
 
 pose that they may be kept in safety, and this bailment ought 
 to extend to insurance against the aggressions of a foreign 
 state, or against the robberies which may take place on the 
 high seas ; for, in both these instances, the government has 
 an absolute duty, as it may be regarded as a bailee for hire, 
 seeing that the taxes are imposed with the purpose that the 
 country may be protected from public enemies, and that prop- 
 erty, whether it is abroad or at home, may be secure. This 
 rule has been, more than once, stated in courts of law, 1 and it 
 is the same rule which was adopted by the Roman jurists. 2 
 But, as may be gathered from what has already been said, this 
 rule is to be understood to apply only where the ship does not 
 fall into the hands of pirates by any negligence or fault of the 
 master. 8 These two causes of disaster may sometimes con- 
 spire to bring about mischief. The act of God may throw a 
 ship into the hands of an enemy. A tempest may carry a ship 
 on to an enemy's shore, and in these cases it is to be remem- 
 bered that the proximate cause of the loss or capture is that 
 to which it is to be ascribed in law. Thus, if the winds carry 
 a ship to a coast where she is captured by the enemy, this is 
 to be looked upon, according to authority, as a loss by capture 
 of the enemy — this, however, under the supposition that she 
 is captured before she has been stranded. If, on the other 
 hand, the tempest should strand the ship, and she should sub- 
 sequently be ransacked by the inhabitants, the loss is to be 
 ascribed to the perils of the sea. 4 So far, however, as the 
 common-law liability of common carriers is concerned, these 
 somewhat fine distinctions are useless, as it is evident that the 
 irresponsibility of carriers is the same, whether the loss or 
 damage has been caused by one or both of these circumstances, 
 which are excepted from the carrier's implied contract of in- 
 surance. Where, however, there is a special contract, as, for 
 
 1 Pickering v. Barclay, ubi supra ; * Story on Bailm. § 526; Hayn 
 Barton v. Wolliford, ubi mpra ; Morse v. Corbett, 2 Bing. 205 ; Greene v. 
 v. Slue, 1 Vent. 190. " Elmslie, Peake, 278. See also Amer- 
 
 2 Dig. 4, 9, 31. ican eases, Syckel v. The Thomas Eur- 
 8 Emerigon, torn. 1, p. 532 ; Bexer ing, Crabbe, 405 ; Ourence v. Minturn, 
 
 v. Tomlinson, Easter Term, 36 Geo. 17 How. (U. S.) 100 ; King ». Shep- 
 HI. hert, Story (U. S. C. C), 349. 
 
180 THE LAW OF CARRIERS. 
 
 instance, that the owner of the goods shall bear the loss, if any 
 is occasioned by the perils of the sea, but that the carrier shall 
 be responsible for any loss or injury caused by the Queen's 
 enemies, the determination of this question may be a matter 
 of much importance. It is also to be noticed that the words 
 " Queen's enemies " include something more than the mean- 
 ing they at first sight bear. They do not mean exclusively 
 the enemies of the sovereign of England, but also include the 
 enemies of the sovereign or state of the carrier ; 1 so that, if 
 goods be intrusted to a foreign carrier, whose sovereign is at 
 war with another, and his ship is captured, he is excused from 
 performance of his contract, in the same manner as a British 
 carrier would be if his vessel were captured by the enemies of 
 this country. This rule was applied in reference to the cap- 
 ture of goods by the Confederate forces during the Rebellion ; 
 and in such cases the carrier was excused,, upon the ground 
 that the rebels were belligerents, and " enemies of the Queen " 
 within the rule. 2 
 
 Sec. 101. Carrier's Liability in case of Loss where the Loss 
 was otherwise Inevitable. — A question of as much diffi- 
 culty as interest may be considered in this place. A carrier 
 may sometimes seem to anticipate fate. The goods may be 
 lost through some casualty, for which, under the present law, 
 the carrier is undoubtedly liable ; and yet it may be capable 
 of proof that, had they not been lost in the one way, they 
 must inevitably have perished in another, for which the car- 
 rier would not have been liable. The question is, under these 
 circumstances, is the carrier to be held responsible for the 
 loss ? Thus, suppose a master of a ship to deviate from his 
 course to such a degree that his journey is prolonged for a 
 day, and suppose that it is capable of proof that even had the 
 
 1 Russell v. Nieman, 34 L. J. 10 Wilhelm Schmidt, 1 Asp. Mar. Law 
 
 C. P. ; 17 C. B. n. s. 163 ; 10 L. T. Cas. 82. 
 
 n. s. 786. See also The Patria, 3 L. ' 2 Southern Express Co. v. Wor- 
 
 R. Adm. 436 ; 1 Asp. Mar. Law Cas. mack, 1 Heisk. (Tenn.) 256 ; Bland 
 
 71 ; The Teutonia, 3 L. R. Adm. 394 ; v. Adams Express Co., 1 Duv. (Ky.) 
 
 24 L. J. n. s. 21; 1 Asp. Mar. Law 232; United States v. Palmer, 3 Wheat. 
 
 Cas. 32 ; The Heinrich, 3 L. R. Adm. (U. S.) 610 ; Tliorington v. Smith, 8 
 
 424; 1 Asp. Mar. Law Cas. 79 ; The Wall. (U. S.) 1. 
 
COMMON-LAW DUTY OP COMMON CARRIERS, ETC. 181 
 
 delay of a day not taken place, the storm which wrecked the 
 ship and caused the damage of the goods must inevitably have 
 taken place, and caused the loss or damage. In this case is 
 the carrier to be regarded as responsible for the loss ? 
 
 Sec. 102. Roman Law concerning this Matter. — The Roman 
 law would, under such circumstances, have held that the car- 
 rier was not liable, and that the mere anticipation of the act of 
 God, by the act which was negligent, careless, or wrong upon 
 the part of the carrier, gave it a character resembling that of the 
 inevitable and natural accident which would have done what it 
 did. " If the bailee, to use the Roman expression," says Sir 
 William Jones, " be in mora — that is, if a legal demand have 
 been maide by the bailor, he must answer for any casualty that 
 happens after the demand, unless in cases where it may be 
 strongly presumed that the same accident would have befallen 
 the thing bailed, even if it had been restored at the proper 
 time, or unless the bailee have legally tendered the thing, and 
 the bailor have put himself in mora by refusing to accept it. 
 This rule extends, of course, to every species of bailment." l 
 : Opinion seems rather to be in favor of adopting this rule of the 
 civil law. 
 
 Sec. 103. Negligence -which does not cause Loss. — The rule 
 that, if negligence conduces to the loss which is proximately 
 occasioned by an act of God, the carrier who has been negli- 
 gent shall be held responsible, is not more firmly established 
 than that which states the doctrine that no amount of care- 
 lessness upon the part of the carrier, which did not lead to 
 the loss, or which had no effect in placing the goods in such 
 a position that they could suffer by an act of God, will render 
 him liable in case of their loss by such a casualty. The 
 doctrine under consideration seems to have gained some of 
 that approval which attaches to it, 2 from an estimate of this 
 principle. 
 
 Sec. 104. Rule where there is Doubt as to Cause of Loss. — 
 The negligence which causes a loss which would otherwise 
 have happened, seems to resemble negligence which was 
 
 1 Jones on Bailra. 70. 
 
 2 See Story on Bailm. § 413, c. and d. 
 
182 THE LAW OP CARRIERS. 
 
 totally apart from the casualty in question ; thus the courts 
 have been careful in all cases to demand a clear proof that 
 there was some connection between the loss and the careless- 
 ness; and in the case of Muddle v. Stride, 1 which was an 
 action against the proprietors of a steam vessel to recover 
 compensation for damage done to goods sent by them as car- 
 riers, it was held that if, on the whole, it be left in doubt what 
 the cause of the injury was, or if it may as well be attributed 
 to perils of the sea as to the negligence of the carrier, the 
 owner of the goods is not entitled to recover. It seems a very 
 insignificant advance from the doctrine stated in this case to 
 that which holds the carrier, although the actual cause of the 
 loss, irresponsible for that loss, if it was inevitable through 
 an accident, such as lightning, for which he would not have 
 been held liable. In an action against the proprietors of a 
 barge, who had, by means of that barge, undertaken the con- 
 veyance of some lime belonging to the plaintiff from Bewly 
 Cliff, in Kent, to the Regent's Canal, in London, and whose 
 servant, the master of the barge, had deviated unnecessarily 
 from the usual course, in consequence of which deviation the 
 barge had encountered a tempest, which caused the lime to be 
 wet and consequently to take fire, the defendants were sued 
 for the loss by the owner of the lime. It was proved that in 
 this way the lime and the defendants' ship were both de- 
 stroyed. It was argued, however, for the defendants that the 
 deviation of the master of the barge was not a cause of the 
 loss of the lime sufficiently proximate to entitle the plaintiff 
 to recover, inasmuch as the loss might have been occasioned 
 by the -same tempest if the barge had proceeded in her direct 
 course. Tindal, C. J., in giving the opinion of the court, after 
 stating the case, said, with reference to this argument : " If it 
 were to prevail, the deviation of a master, which is undoubt- 
 edly a ground of action against the owner, would never, or 
 only under very peculiar circumstances, entitle the plaintiff to 
 recover ; for if a ship is captured in the course of deviation, 
 no one can be certain that she might not have been captured 
 
 1 9 C. & P. 380. 
 
COMMON-LAW DUTY OF COMMON CAEEIBRS, ETC. 183 
 
 if in her proper course. And yet, in Parker v. James, 1 where 
 the ship was captured whilst in the act of deviation, no such 
 ground of defence was even suggested. Or, again, if the ship 
 strikes against a rock, or perishes by storm in the one course, 
 no one can predicate that she might not equally have struck 
 upon another rock, or met with the same or another storm, if 
 pursuing her right and ordinary voyage. The same answer 
 might be attempted to an action against a defendant who had, 
 by mistake, forwarded a parcel by the wrong conveyance, and 
 a loss had thereby ensued, and yet the defendant in that case 
 would undoubtedly be liable. But we think the real answer 
 to the objection is, that no wrong-doer can be allowed to ap- 
 portion or qualify his own wrong, and that, as a loss has actu- 
 ally happened whilst his wrongful act was in operation and 
 force, and which is attributable to his wrongful act, he cannot 
 set up, as an answer to the action, the bare possibility of a 
 loss if his wrongful act had never been done. -It might admit 
 of a different construction if he could show, not only that the 
 same loss might have happened, but that it must have hap- 
 pened if the act complained of had not been done ; but there 
 is no evidence to that extent in the present case." 2 
 
 SBC. 105. Necessary Evidence. — Prom this it would appear 
 that there can be little doubt that the principle of the common 
 law is the same as that of the civil law, but that in every case 
 there must be clear proof that the act of God would inevitably 
 have occurred, and that it was not in the power of man, by 
 any forethought or care, to have avoided it. And the reason 
 for the establishment of the rule upon this basis is, that an 
 action, in case of loss, is founded upon the principle that there 
 must be some connection between the injury and the careless- 
 ness, and that carelessness of itself, which did not cause loss 
 or damage to the goods of the bailor, never could be a ground 
 of action. 
 
 Sec. 106. " Act of God " and " Queen's Enemies." — " Natural 
 Decay." — Leakage. — With reference to these two exceptions 
 to the common-law liability of common carriers, something 
 more may be said. It is evident that the phrase " act of God," 
 
 1 4 Camp. 112. 2 Davis v. Garrett, 6 Bing. 716. 
 
184 THE LAW OP CARRIERS. 
 
 may be extended to many cases other than those in connec- 
 tion with which it has most frequently been used. Men are 
 too apt to hear God in the thunder and storm, and ignore his 
 existence in the still small voice of the calm. But the acts 
 of God are not always cataclasms, and " natural decay " may 
 as reasonably be classed under this head as " tempests " or 
 " lightnings." That a carrier should not be held liable for 
 the loss of goods which have been delivered to him, if he has 
 not been guilty of any delay which might contribute to their 
 loss, might be deduced from the principles laid down in an 
 earlier part of this work, but this has actually been decided in 
 courts of law. The person consigning perishable goods ought 
 to make himself aware of their qualities so thoroughly, and of 
 the time that must be spent in transit between the place from 
 which they are sent and their destination, as to guard against 
 the casualty of their natural decay. 1 Where he fails to take 
 such obvious and necessary precautions there is every reason 
 why he should suffer the loss, as there is no rule which would 
 make it necessary that a carrier should be more careful of the 
 future of the goods consigned to him than their owner. The 
 carrier does not by his trade or business profess to know how 
 long oranges will keep on board ship, or how long the meat 
 will be preserved in jars. And so long as he does what he 
 professes to do, and arrives at his destination without any 
 delay and by his ordinary course, he is not to be held liable 
 for the losses occasioned by the act of God, " natural decay," 
 and the carelessness of the owner in not ascertaining how 
 long the goods would keep. All liquids are liable to some 
 diminution by means of evaporation during a journey, and 
 there is generally a certain amount of leakage, for neither of 
 which can the carrier, with any propriety, be held liable. The 
 owner who possesses and sends such goods should be aware 
 that such occurrences universally take place, and ought to 
 make his charges cover such inevitable loss. 2 So if, through 
 
 1 See " The Gudion," oh. 7, arts. 7, 2 Hudson v. Baxendale, 2 H. & N. 
 
 10. See Davidson v. Gwynne, 12 575; 27 L. J. Exch. 93; Ohrloff v. 
 
 East, 381 ; Abbott on Ship. pt. iv. ch. Briscall, 1 L. R. P. C. 231 ; and see 
 
 9, p. 380. Hunnewell v. Taber, 2 Sprague (U. S. 
 
COMMON-LAW DUTY OP COMMON CARRIERS, ETC. 185 
 
 no fault of the carrier's, the wine he is carrying should turn 
 sour, the owner, it seems to us, would have as much right to 
 claim damages from him on account of the loss, as the owner 
 of a ship in which Madeira was sent a voyage to improve it, 
 would have a right to claim from the owner of the wine an 
 amount equal to its enhanced value. At the same time it is 
 the duty of the carrier to take all reasonable precautions to 
 prevent deterioration; and if a diminution in value can be 
 clearly traced to the negligent or wilful act of the carrier, he 
 will be held liable for such loss. 1 
 
 Sec 107. Natural Causes. — But the principles involved in 
 such cases are not to be used rashly. There are circumstances 
 under which a mere change would raise a presumption of negli- 
 gence upon the part of the carrier. Thus, where a cargo weigh- 
 ing a certain weight is delivered to a carrier to be carried, and 
 when the cargo arrives at its destination the weight is different, 
 it has been held that this is evidence from which a jury may 
 infer negligence in the carrier, and it is incumbent upon him 
 to show that the deficiency did not arise from his negligence. 2 
 So in an action against carriers for injury to casks of oil, al- 
 leged by them to have arisen from defects in the casks, it was 
 left to the jury to say whether it arose from such defects, and 
 whether, even if it did, the carriers knew or ought to have 
 known thereof, and had acted negligently in sending them on 
 in that state. 3 It is therefore to be understood that this rule 
 only extends to cases in which the injury arises from natural 
 causes, without the intervention of man. 
 
 Sec. 108. Negligent Packing. — Negligent packing upon the 
 part of the owners of the goods, of which the carrier cannot be 
 aware or could not obviate, will exonerate the carriers from 
 their liability for losses which were caused by such negligent 
 packing. But even such a rule is to be looked at strictly, for 
 
 C. C), 1; Farra v. Adams, Bull. N. B. 346; 22 L. T. n. s. 577; 3 Mar. 
 
 P. 69 ; Warden v. Greer, 6 Watts Law Cas. o. s. 419, affirmed, L. R. 7 
 
 (Pram.), 424 ; Nelson v. Woodruff, 1 Q. B. 225, Ex. Cham. 
 Black (U. 8.), 156 ; Clark v. Barne- a Hawkes v. Smith, Car. & M. 72. 
 well, 12 How. (U. S.) 272 ; Tysen v. » Cox v. London & North- Western 
 
 Moore, 56 Barb. (N. Y.) 442. Rail. Co., 3 F. & E. 77. 
 
 l 
 
 Notara a. Henderson, 5 L. R. Q. 
 
186 THE LAW OP CARKIEBS. 
 
 it has been decided that, in an action against a carrier for 
 damage to goods, it is enough to prove the condition and value 
 of the goods when delivered to him, and when received by the 
 consignee, and if damaged in the hands of the carrier he is 
 entitled to recover ; and it was also held in this case, that the 
 fact that the damage was partly caused by the packing goes 
 only to the amount of the damage. 1 So, where a greyhound 
 was delivered to a carrier, who gave a receipt for it, and the 
 greyhound was subsequently lost, it was held that the carrier 
 could not set up a defence that the dog was not properly secured 
 when delivered to him. 2 In the case of Goff v. Clinkard, the 
 defendant, a carrier, had undertaken to carry the plaintiff's 
 goods from London to Amsterdam, and they were accidentally 
 damaged in their being let down into the hold of the ship ; the 
 defendant was held liable for such damage. 3 • 
 
 SEC. 109. Where Responsibility begins and ends. — This 
 case seems to indicate where the responsibility of the owner 
 ends and where that of the carrier begins. The duty of pack- 
 ing may, in the first instance, lie upon the owner, and in case 
 of a neglect of this duty, which is not discoverable by the car- 
 rier, he may himself have to be responsible for the injury thus 
 occasioned ; but the duty of packing in the second instance, or 
 storing in such a way that the goods shall not be damaged in 
 the transit, lies on the carrier, and in case of injury caused by 
 his neglect of this obvious duty he will be held liable. 4 But 
 there are other questions of packing, which are of importance 
 in this connection. 
 
 1 Higginbotham v. Great Northern * Sack v. Ford, 13 C. B. k. s. 90 ; 
 Rail. Co., 2 F. & P. 796 ; 10 W. R. 32 L. J. n. s. C. P. 12. See Well- 
 358 Q. B. ; Peclc v. Weeks, 34 Conn, wood, p. 29 ; Abbott on Ship. pt. iv. 
 152 ; Clark v. Rochester & Syracuse ch. 5, p. 308. But see Swanston v. 
 R. R. Co., 14 N. Y. 570; Adrian v. Garrick, 2 L. J. 267, Ex. 255 ; and 
 The Live Yankee, 33 Hunt's Merch. the judgment of Willes, J., in Blakie 
 Mag. 707 ; Ireguist v. Morewood, 33 v. Stembridge, 6 C. B. n. s. 894, Ex. 
 Hunt's Merch. Mag. 706. Ch. lb. 911 ; 28 L. J. C. P. 329 ; 
 
 2 Stewart v. Crawley, 2 Stark. 323. s. c. in error, 29 L. J. n. s. 212 C. P. ; 
 8 Goff v. Clinkard, cited 1 Wils. The Peytona, Ware (U. S. C. C), 2d 
 
 282 ; Baxter v. Leland, Abb. Adm. ed., 541 : Zerega v, Poppe, Abb. Adm. 
 (U. S.) 348 ; The Ree Side, 2 Sumn. (U. S.) 397 ; compare The Colombo, 
 (U. S.) 567. 3 Blatchf. (U. S. C. C.) 521. 
 
ETC. 187 
 
 SEC. 110. The Carriage of Cattle. — One of the most impor- 
 tant parts of the traffic upon our railway lines at the present 
 time is the conveyance of cattle. The division of labor has 
 gone so far, that not only does every man work at a different 
 trade, but every town or district has its own peculiar kind of 
 business or manufacture, and depends for every other necessity 
 and luxury of life upon its neighbors. This fact, which may 
 to some extent be due to the facility with which food and other 
 things can be brought from a distance, has brought about an 
 amount of traffic which is totally unprecedented. As this is 
 the case, it is of much importance to determine under what 
 circumstances, when injury occurs to cattle, the loss shall be 
 borne by the owner of the animals or the carrier. We have 
 seen that, in a case where a greyhound was given to a carrier 
 to be conveyed, and where it was lost, he was not allowed to 
 set up the assertion that when it was delivered to him it was 
 not properly secured ; 1 and under like circumstances, a similar 
 rule would hold with regard to other kinds of animals ; upon 
 the principle that where the carrier has every means of ascer- 
 taining whether the animal is well secured or not, he ought to 
 use those means, and not trust exclusively to the care of the 
 owner. His duty is to keep and carry safely. 2 When, how- 
 ever, the carrier has taken every reasonable precaution, and 
 some circumstance, which may fairly be regarded as an act of 
 God, causes damage to animals, he is not to be held liable in 
 this case, any more than he would in that of damage done to 
 any goods which are not animate. The cases on this point 
 only show the similarity of the principle which is to be applied 
 to all these cases. In one of these the declaration stated that 
 a policy of insurance was effected on horses " warranted free 
 from jettison and mortality," on the ship " Aimwell," at and 
 from Liverpool to Jamaica. In the course of the voyage, in 
 consequence of the laboring of the vessel in a storm, the horses 
 broke their slings, and one of them, by kicking, broke down 
 the partition between it and the next horse. Subsequently the 
 other partition was broken down in a similar manner, and the 
 
 1 Stewart v. Crawley, 2 Stark. 323. 
 
 2 Pozzi v. Sliipton, 1 P. & D. 4 ; 8 Ad. & El. 963 ; 1 W. W. & H. 624. 
 
188 
 
 THE LAW OP CAEEIERS. 
 
 three horses having nothing to support them were unable to 
 stand, on account of the rolling of the vessel. In this way it 
 came to pass that the horses kicked, and bruised and wounded 
 each other, in such a way that they all died. In this case it 
 was held that the loss thus caused was a loss by a peril of the 
 sea. 1 And the same thing was decided in a case almost pre- 
 cisely similar in every respect. 2 It has been held to be a ques- 
 tion, whether the common-law liability of railway companies 
 extends to live-stock conveyed by them. 3 And it has been ex- 
 pressly held that a railway company carrying living animals 
 is not bound to provide fences or guards at the station where 
 the animals may be landed, between the line and the station 
 yard, so as to prevent them straying on the line. 4 These 
 cases would seem to show that the rule is universal, and that 
 the mere animacy of the goods conveyed can make no differ- 
 ence in the responsibility of the carriers ; 6 but a recent decis- 
 
 1 Gabay v. Lloyd, 3 B. & C. 793. 
 
 2 Lawrence v. Aberdeen, 5 B. & 
 Aid. 107. See also Tatham v. Hodg- 
 son, 6 T. E. 656 ; and Walker v. 
 London & South-Western Rail. Co., 
 Kingston Spring Assizes, 1843 ; quoted 
 in " Walford's Summary of the Law 
 of Railways," London, 1845. 
 
 8 M'Manus v. Lancashire & York- 
 shire Rail. Co., 2 H. & N. 693 ; 4 
 Jur. n. s. 144 ; 27 L. J. Exch. 201. 
 
 4 Roberts v. Great Western Rail. 
 Co., 4 Jur. n. s. 1240 ; 4 C. B. w. s. 
 560 ; 27 L. J. C. P. 266 ; Shepherd 
 v. Bristol & Exeter Rail. Co., 37 L. J. 
 Exch. 113 ; 3 L. R. Exch. 189 ; 16 
 W. R. 982; 18 L. T. &\ s. 528; Page 
 v. Great Northern Rail. Co., 2 Ir. R. 
 C. L. 228, C. P. 
 
 6 The American law with regard to 
 slaves was different from that which 
 was in force with regard to animals. 
 Boyce v. Anderson, 2 Pet. (U. S.) 
 150 ; Stokes v. Saltonstall, 13 Pet. 
 (U. S.) 181; Clark v. M'Donald, 
 4 M'Cord (S. C), 223 ; Williams v. 
 Taylor, 4 Port. (Ala.) 234; Hawkins v. 
 
 Phythian, 8 B. Mon. (Ky.) 515 ; Swigert 
 v. Graham, 7 B. Mon. (Ky.) 662. In 
 Michigan it has been held that rail- 
 roads are not common carriers of live 
 animals. Michigan, &o. R. R. Co. v. 
 McDonough, 21 Mich. 165. But in 
 all the other States the rule is as stated 
 in the text. ■ Kansas Pacific R. R. Co. 
 v. Nichols, 9 Kan. 235 ; Evans v. 
 Dunbar, 117 Mass. 546. But they 
 may limit their liability by special con- 
 tract so as not to be liable except for 
 loss resulting from their negligence, 
 or may stipulate that they shall only 
 be liable in any event to pay more 
 than a certain sum for each animal in- 
 jured or lost. Squire v. New York 
 Central R. R. Co., 98 Mass. 239. 
 But, failing to limit their liability, they 
 are liable as carriers. Sager v. R. R. 
 Co., 31 Me. 228 ; Rixford v. Smith, 
 52 N. H. 355 ; Lee v. R. R. Co., 72 
 N. C. 236 ; Louisville, &c. R. R, Co. 
 v. Hedger, 9 Bush (Ky ), 245 ; Illinois 
 Central R. R. Co. v. Hall, 58 HI. 409 ; 
 Pennbj lvania, &c. R. R. Co. v. Buffalo, 
 &c. R. R. Co., 49 N. Y. 204 ; Cragin 
 
ETC. 189 
 
 ion x has made it evident that such is not the case. They in- 
 dicate, however, that if there is no carelessness in the individ- 
 ual carrier in contributing to the loss or injury of the goods 
 by the act of God, he shall not be held liable ; and that where 
 injury is caused by the natural and ordinary circumstances 
 of the transit and the necessities of the road, together with 
 the culpable negligence of the sender of the goods, the carrier 
 shall in that case also be held to be free from the necessity of 
 making good the loss. 
 
 Sec. 111. "Circumstance of Transit," and "Necessity of Road." 
 — The question as to what is a natural and ordinary circum- 
 stance of the transit, or what is a necessity of the road, is a 
 question of fact. In one case, which, as Sir William Jones 
 says, " has some appearance of hardship," " a box of jewels had 
 been delivered to a ferryman, who knew not what it contained, 
 and, a sudden storm arising in the passage, he threw the box 
 into the sea, yet it was resolved that he should answer for it." 2 
 Sir William Jones, in commenting on this case, 3 says : " I can- 
 not help suspecting that there was proof in this case of culpable 
 negligence, and probably the casket was both small and light 
 enough to have been kept longer on board than other goods ; 
 for in the case of Gravesend barge, cited on the bench by Loed 
 Coke, it appears that the pack which was thrown overboard in 
 a tempest, and for which the bargeman was holden not answer- 
 able, was of great value and great weight, although this last 
 circumstance be omitted by Rolle, who says only " that the 
 master of the vessel had no information of its contents." 4 
 
 v. New York Central R. E. Co., 51 1 Kendal v. London & South-West- 
 
 N. Y. 61; Evansville, &c. R. R. Co. ern Rail. Co., Law Times, June 15, 
 
 v. Young, 28 Ind. 516 ; Kimball v. 1872. 
 
 Rutland, &o. R. R. Co., 26 Vt. 247 ; 2 Per Rolle, C. J., in Bancroft's 
 
 Hall v. Renfro, 3 Met. (Ky.) 51; Case; All. 93. 
 
 Betts v. The Farmer's Loan and Trust 8 On Bailm. 108. 
 
 Co., 21 Wis. 80 ; Ohio, &c. R. R. Co. * 2 Bulstr. 280 ; 2 Roll. Abr. 567 ; 
 
 v. Dunbar, 20 111. 623 ; Toledo, &o. Story on Bailm. § 531 ; Abbott on 
 
 R. R. Co. v. Thompson, 71 111. 434 ; Ship. pt. iii. c. 8. 
 
 St. Louis, &c. R. R. Co. v. Downer, 
 
 72 111. 504. 
 
190 
 
 THE LAW OP CARRIERS. 
 
 CHAPTER VII. 
 
 THE LIMITED RESPONSIBILITY OP COMMON CARRIERS. — RESTRIC- 
 TION OP THEIR COMMON -LAW LIABILITY BY STATUTE OR BY 
 SPECIAL CONTRACT. 
 
 Sec. 112. 
 113. 
 114. 
 115. 
 
 116. 
 
 117. 
 
 118. 
 119. 
 120. 
 121. 
 122. 
 
 123. 
 124. 
 
 125. 
 126. 
 
 127. 
 128. 
 
 130. 
 
 131. 
 132. 
 
 133. 
 134. 
 135. 
 136. 
 137. 
 138. 
 139. 
 
 Limitation of Liability. 
 
 By Custom. 
 
 Qualified Acceptance. 
 
 Carriage by Sea. — Bill of Lad- 
 ing. 
 
 Express Contracts and Implied 
 Agreements. 
 
 Exclusion of Responsibility by 
 Notice. 
 
 To what Notice applies. 
 
 Principle of. 
 
 Former Doctrine. 
 
 Modifications in the Principle. 
 
 Extent of Limitation. — Express 
 Agreement. 
 
 General Notice. 
 
 Must come to Knowledge of 
 Shipper. 
 
 Factual Limitation. 
 
 False Statements of Value, Ef- 
 fect of. 
 
 Rule in Maving v. Todd, 121. 
 
 Extinction of Common -law 
 Duties by Notice. 
 
 Onus of Proof. 
 
 Rule in Macklin v. Waterhouse 
 and Cobden v. Bolton. 
 
 Notice to Principal. 
 
 Means by which Notice is 
 brought to Owner's Knowl- 
 edge. 
 
 Notice by Placards. 
 
 Notice on Board in Office. 
 
 Effectual Notice. 
 
 Limitation to a certain Value. 
 
 Bulky Goods. 
 
 Proper Wav to limit Liability. 
 
 11 Geo. IV. and 1 Will. IV. 
 
 140. Declaration of Value. 
 
 141. Public Notice. 
 
 142. Carrier's Receipt. 
 
 Sec. 143. Limitation of Liability by No- 
 tice. 
 
 144. Office. 
 
 145. Special Contracts. 
 
 146. Recovery of Loss. 
 
 147. Feloni6us Acts of Servants. 
 
 148. Proof of Value. 
 
 149. Modification of these Provis- 
 
 ions. 
 
 150. Divisibility of Contracts. 
 
 151. Decisions on the First Section. 
 
 152. Trinkets. 
 
 153. Manufactured Silks, Glass, Furs, 
 
 Securities, Lace, &c. 
 
 154. Special Contracts still Admis- 
 
 sible. 
 
 155. Payment of Carriage. 
 
 156. Effect of Statute. 
 
 157. Receiving-house. 
 
 158. Rule in Gilbert «. Dale. 
 
 159. Rule in Baxendale v. Hart. 
 
 160. Necessity of Notice. 
 
 161. Information to be given by 
 
 Owner. 
 
 162. How Owner's Duty to be per- 
 
 formed. 
 
 163. Demand of Payment of In- 
 
 creased Charge. 
 164 Behrens v. The Great Northern 
 Railway Co. 
 
 165. Declaration, Effect of. 
 
 166. Meaning of the Word "Loss." 
 
 167. Effect of Statute. — Private No- 
 
 tices. 
 
 168. Limitation of Liability by Pri- 
 
 vate Notices. 
 
 169. Special Contracts by Tickets or 
 
 Notices. 
 
 170. Subject Considered. 
 
 171. Repudiation by Owner. 
 
 172. Owner's Remedy. 
 
 173. What is Private" Notice? 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 191 
 
 174. Special Memorandum Part of 
 
 Contract. 
 
 175. Constructive Knowledge. 
 
 176. Doctrine of Rules. 
 
 177. Reconciliation of Doctrines. 
 
 178. Rule in Shaw v. York, &c. Rail- 
 
 way Co. 
 
 179. Carrier's Duty, how laid aside. 
 
 180. Interpretation of Private No- 
 
 tices. 
 
 181. Effect of Carriers' Act as to Car- 
 
 riers under Special Contract. 
 
 182. Distinction between Classes of 
 
 Carriers. 
 
 183. Modification of Rules. 
 
 184. Reasonable Conditions. 
 
 185. Amount Recoverable. 
 
 186. Proof of Value. 
 
 187. Railway and Canal Carriers may 
 
 make Special Contracts. 
 
 188. Act Construed. 
 
 189. Reasonable Condition. 
 
 190. Effect of Notice, &c. 
 
 191. Such Contract, What is. 
 
 192. Reasonable Conditions. 
 
 193. Questions Raised. — Unreason- 
 
 able Condition. 
 
 194. Signature of Agent. 
 
 195. Special Contracts must be Rea- 
 
 sonable. 
 
 196. As to signing Contract. 
 
 197. Signature not Conclusive Evi 
 
 dence of Contract, When. 
 
 198. When Unsigned Contract bind- 
 
 ing on Carrier. 
 
 199. What are Just and Reasonable 
 
 Conditions. 
 
 200. Badly Packed Goods. 
 
 201. Loss of Market. 
 
 Sec. 202. 
 
 203. 
 204. 
 
 205. 
 
 206. 
 207. 
 208. 
 209. 
 210. 
 
 211. 
 
 212. 
 213. 
 214. 
 215. 
 
 216. 
 217. 
 218. 
 
 219. 
 220. 
 
 221. 
 222. 
 223. 
 224. 
 225. 
 226. 
 
 227. 
 228. 
 
 Reasonable Conditions as to 
 Animals. 
 
 When Drover goes withAnimals. 
 
 Effect of Statutory Provisions, 
 As to. 
 
 Special Provisions necessitated 
 by Kind of Goods. 
 
 Perishable Goods. 
 
 Liability for Negligence. 
 
 Misconduct of Carrier. 
 
 Alternative Method of Carriage. 
 
 Reasonable Regulations by Tele- 
 graph Company. 
 
 Company cannot free itself from 
 all Risk. 
 
 Delay caused by Negligence. 
 
 Proper Vice of Animals. 
 
 Condition. 
 
 Is Railway Company Insurer of 
 Animals ? 
 
 Not liable for "Proper Vice." 
 
 Burden of Proof. 
 
 The Law of Carriers as stated 
 in M'Manus v. Lancashire, 
 &c. Railway Co. 
 
 Inferences from Decisions. 
 
 Liable for Negligence notwith- 
 standing Contract. 
 
 Reason of Proviso. 
 
 Sufficient Declaration of Value. 
 
 Casual Statements. 
 
 Personal Risk of Carrier. 
 
 Goods of a Dangerous Nature. 
 
 Liability of Owner who does not 
 declare Dangerous Nature of 
 Goods. 
 
 Rule in Hearne v. Garton. 
 
 Carrier's Right to know Charac- 
 ter of Goods. 
 
 Sec 112. Limitation of Liability. — Before it becomes neces- 
 sary to consider the duties and liabilities of carriers with re- 
 gard to the delivery of the goods bailed to them, it is necessary 
 to examine how and to what extent their common-law liability 
 may be modified. We have in the last chapter pointed out 
 that the law which imposes such extensive liability upon com- 
 mon carriers, at the same time imposes certain restrictions 
 upon it, and that, although they are insurers, they are not in- 
 surers against the act of God or of the king's enemies ; and 
 that, under certain circumstances, carelessness upon the part 
 of the consignor of the goods may avoid their responsibility, 
 even while the circumstances which caused the loss could not 
 
192 THE LAW OF CARRIERS. 
 
 properly be classed either with natural physical events, or acts 
 of the enemies of the country. 1 But there is another limitation 
 of responsibility, as we have pointed out, which might either 
 be looked upon as one of the common-law limitations, and 
 therefore have been treated of in the last chapter, or be re- 
 garded as a kind of special contract made with the public 
 generally, and therefore fall for consideration in this place. 
 
 Sec. 113. By Custom. — That limitation is the limitation 
 which arises from the custom of the carrier's trade. The rea- 
 son that the common law imposes such stringent duties upoa 
 public carriers is, that they have held themselves out to the 'public 
 as servants of all men, and such a profession is a profession of 
 skill. But this reason is equally true and effective with regard 
 to the limitations of a man's trade as it is with regard to its 
 scope, for these two mean exactly the same thing. Therefore, 
 where a man professes only to carry one species of article, and 
 the public has sufficient means of knowing that such is his cus- 
 tom, this will limit his responsibility, if he undertakes the car- 
 riage of goods other than those which he is in the habit of 
 conveying, to that of a private carrier for hire? But although 
 this is in one aspect a limitation of the carriers' trade by cus- 
 tom, it is in another aspect nothing but a profession of the 
 trade of a common carrier with regard to special articles or 
 kinds of articles, and the special contracts which we have to 
 refer to in this chapter are rather those which are expressed 
 by notice or agreement than those which are implied by 
 custom. 
 
 Sec. 114. Qualified Acceptance. — From very early times 
 it has been understood that a common carrier has a right to 
 accept goods under a qualified or modified contract for carriage. 
 In a note to Southcote's Case, Lord Coke says that if goods 
 are delivered to one person to be delivered over to another, it 
 is good policy to provide for himself in special manner for 
 doubt of being charged with his general acceptance. 8 This, 
 however, seems to be only a warning that it is well, when the 
 
 1 McKean v. Molver, 18 L. J\ n. s. 2 See ante, p. 46 et seq. 
 410, Exch. 8 Southcote's Case, 4 Co. 84. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 193 
 
 duty of the bailment is to bail, to use special precaution in case 
 the duty of the second should be confounded with the duty of 
 the first, and consequently a much larger amount of service 
 be demanded of a man than he expressly or' impliedly under- 
 took to perform. Neither was the doctrine that a man can by 
 a special acceptance limit his liability, definitely acknowledged 
 by Sir Matthew Hale in Morse v. Slue, 1 as some writers seem 
 to think. In the case of Gibbon v. Paynton, 2 however, the 
 doctrine although not declared was assumed. In this case the 
 plaintiff had concealed 1001. in a bag of hay and intrusted 
 the bag to the defendant, a common carrier, to be conveyed to 
 A. The plaintiff was aware of the fact that the defendant had 
 published notices declaring that he would not be liable for the 
 loss of money unless it was delivered to him as such ; but the 
 plaintiff, notwithstanding this knowledge, did not communicate 
 the fact that a hundred pounds was concealed in the hay to 
 the defendant. The court held this concealment to be con- 
 structive fraud upon the part of the plaintiff, and that the 
 defendant was therefore not liable for a loss during the transit. 
 Lord Mansfield said : " If the owner of the goods has been 
 guilty of fraud upon the carrier, such fraud ought to excuse 
 the carrier." 3 Fraud vitiates all contracts, and, upon principle 
 as well as authority, where a shipper of goods fraudulently 
 conceals the value or character of goods, the carrier is released 
 from his liability as an insurer ; and this is so whether the 
 fraud is practised by his silence or by actual representations, 
 or whether the shipper intends to practise a fraud upon the 
 carrier or not. 4 If a shipper places money or other valuable 
 articles in a bale of wool or cotton, or in a barrel ostensibly 
 containing an ordinary species of freight, so that the vigilance 
 of the carrier is relaxed as to its care or custody, it would be 
 
 1 Morse v. Slue, 1 Vent. 190. " Pardee v. Drew, 25 Wend. (N. Y.) 
 
 2 4 Burr. 2301. 459 ; Warner v. Western Transporta- 
 8 Gibbon v. Paynton, 4 Burr. 2301. tion Co., 5 Kobt. (N. Y. Superior Ct.) 
 
 See also, per Lord Ellenborough, in 490 ; Southern Express Co. v. Everett, 
 Leeson v. Holt, 1 Stark. 186 ; De 37 Ga. 688 ; Chicago, &c. R. R. Co. 
 Rothschild v. Royal Mail Steam Packet v. Thompson, 19 111. 578. 
 Co., 7 Exch. 734 ; Batson v. Donovan, 
 4 B. & Aid. 21. 
 
 13 
 
194 THE LAW OF CAEEIEBS. 
 
 exceedingly unjust to hold him responsible for the loss of the 
 money, unless it resulted from such negligence as would make 
 him responsible for the loss of the wool, &c. if he was merely 
 a private carrier. Therefore, where a carrier receives a pack- 
 age from a shipper of such a size or shape as is naturally cal- 
 culated to throw him off his guard and lead him only to 
 exercise, with reference to it, that degree of diligence which is 
 exercised in reference to ordinary freight, no recovery can be 
 had for its loss. 1 This rule was illustrated in an early New 
 York case, 2 in which an action was brought to recover for the 
 loss of a trunk, owned by a passenger, containing a large 
 amount of money. The defendant was the owner of a steam- 
 boat, upon which the passenger and trunk were transported 
 for hire, but no notice was given to the defendant or the officers 
 of the boat that the trunk contained anything more than the 
 ordinary baggage of passengers, and no extra compensation 
 was paid for its carriage. It was held by the court that, 
 while in the absence of any restrictions upon his liability, or 
 any conditions imposing upon the passenger the duty of dis- 
 closing the value of the contents of the trunk, it became the 
 duty of the carrier, if he desired to be informed of such value, 
 to make inquiry relative thereto, yet that if any means were 
 used to conceal the value of the article, and thereby the owner 
 escaped the payment of a reasonable compensation for the risk, 
 such unfairness and its consequences to the defendant, upon 
 the principles of common justice, would exempt him from lia- 
 bility. It was held, therefore, that the delivery of the trunk 
 to the defendant without any information as to its value, or 
 anything calculated to put him upon inquiry, justified the car- 
 rier in treating it as only containing the ordinary baggage of 
 a passenger, and with the failure to compensate him for his 
 extraordinary risk, operated as a fraud upon him, which pre- 
 vented a recovery for the loss of the money. 8 In the case of 
 
 1 Chicago, &c. R. R. Co. v. Shea, 2 Orange County Bank v. Brown, 
 
 66 111. 471 ; Hayes v. Wells, 23 Cal. 9 Wend. (N. Y.) 85. 
 185 ; Oppenheimer v. United States 8 See, to the same effect, Relf ». 
 
 Express Co., 69 Cal. 62 ; Phillips v. Rapp, ante,- Phillips v, Earle, 8 Pick. 
 
 Earle, 8 Pick. (Mass.) 182;Relf v. (Mass.) 182. 
 Rapp, 3 W. & S. (Penn.) 21; The 
 Ionic, 5 Blatchf. (U. S. C. C.) 538. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 195 
 
 Nicholson v. Willan, 1 however, the law was expressly stated 
 by Lord Ellbnborough in these words : " It was also con- 
 tended on the part of the plaintiffs that such a special accept- 
 ance of goods by a common carrier, as is contained in the 
 defendant's notice, is contrary to the policy of the common 
 
 , law, which has made common carriers responsible to an in- 
 definite extent for losses not occasioned by the only excepted 
 causes of loss, viz., the act of God and the king's enemies. But 
 considering the length of time during which, and the extent 
 and universality in which, the practice of making such special 
 acceptances of goods for carriage by land and water has now 
 prevailed in this kingdom under the observation and with the 
 allowance of courts of justice, and with the sanction also and 
 countenance of the legislature itself, which is known to have 
 rejected a bill brought in for the purpose of narrowing the 
 carrier's responsibility in certain cases, on the ground of such 
 a measure being unnecessary, inasmuch as the carriers were 
 deemed fully competent to limit their own responsibility in all 
 cases by special contract; considering also that there is no 
 case to be met with in the books in which the right of the car- 
 rier thus to limit by special contract his own responsibility has 
 ever been by express decision denied, 2 we cannot do otherwise 
 than sustain such right in the present instance, however liable 
 to abuse and productive of inconvenience it may be, leaving 
 the legislature, if it shall think fit, to apply such remedy here- 
 after as the evil may require." 3 And Lord Kenyon in another, 
 case said : " When no rate is fixed by law, the carrier is entitled 
 to say on what terms he will carry ; he is not obliged to take 
 everything that is brought to his warehouse,, unless the terms 
 on which he chooses to undertake the risk are complied with 
 by the person who employs him. The old mode of declaring 
 used to be on the custom of the realm, but this is in assumpsit, 
 
 ■ it is founded on contract, and the contract must therefore 
 govern the parties." i 
 
 1 Nicholson ». Willan, 5 Bast, 513. 8 New Jersey Steam Navigation 
 
 2 But see, per Loed Kenton, in Co. v. Merchants' Bank, 6 How. (U. 
 Hyde v. Proprietors of the Trent & S.) 344 ; York Co. v. Central R. B, 
 Mersey Navigation, 1 Bsp. 36; and in Co., 3 Wall. (U. S.) 107. 
 
 the King's Bench, 1 T. R. 389. * Anonymous t>. Jackson, Peake's 
 
196 THE LAW OF CARRIERS. 
 
 SEC. 115. Carriage by Sea. — Bill of Lading. — In the case 
 where the goods are to be carried by sea the law is, of course, 
 precisely similar to that which applies to the carriage of goods 
 by land. In this case the terms of the limitation are usually 
 incorporated in the bill of lading, which is in fact a formal 
 acknowledgment of the receipt of goods, and an engagement 
 upon the part of the carrier to deliver them to the consignee 
 or his assigns. That is, of course, the natural place in which 
 to incorporate any formal agreement that the goods mentioned 
 therein shall be carried upon certain conditions, but although 
 this is usually done, still the carrier may be bound by other 
 announcements. Thus, if a ship is advertised in the news- 
 papers, and certain conditions are stated as an inducement to 
 the owners of goods or merchants to make use of that partic- 
 ular ship, as for instance, that the owner of the ship will carry 
 articles up to the value of 5,000Z., while in fact he did not so 
 mean, but meant to limit his liability to articles of a much less 
 considerable value, he will be bound by such advertisements, 
 the terms of which may be incorporated into the contract. 1 
 
 Sec. 116. Express Contracts and Implied Agreements. — 
 Little difficulty will arise as to express agreements which 
 limit the common-law liability of carriers, but there will be 
 some difficulty felt in relation to implied contracts, which may 
 do the same thing. There have been some statutory limi- 
 tations upon this power of qualified acceptance ; but, even 
 before these acts were passed, several cases had done some- 
 thing to make definite the extent to which notice might affect 
 these common-law obligations. 
 
 • SEC. 117. Exclusion of Responsibility by Notice. — Rule 
 in Riley v. Home. — In one case it was held that a carrier 
 might not only limit but exclude all responsibility by giving 
 
 Add. Cas. 185. See also Clay v. Wil- Trent & Mersey Navigation Co., 5 T. 
 
 Ian, 1 H. Bl. 298 ; Izett v. Mountain, R. 389 ; 1 Esp. 36 ; Clarke v. Gray, 
 
 4 East, 371; Harris v. Packwood, 3 6 East, 564; 2 Smith, 622; 4 Esp. 
 
 Taunt. 264; Smith v. Home, 8 Taunt. 177; Covington u.Willau, Gow. 115; 
 
 144; Riley v. Home, 5 Bing. 217; Munn v. Baker, 2 Stark. 255. 
 Ranger v. Great Western Rail. Co., ' See Abbott on Ship.,pt., iii. c. 4; 
 
 1 Rail. Cas. 1 ; Maving v. Todd, 1 Phillips t;. Edwards, 3 H. & N. 813. 
 Stark. 72; 4 Camp. 225; Hyde ». 
 
LIMITED KESPONSIBILITY OP COMMON CARRIERS, ETC. 197 
 
 notice. 1 In another case the defendants had given notice 
 that they would not be accountable for the loss or damage of 
 goods unless the terms of the notice were complied with, and 
 it was held that this notice protected them as well against 
 loss by robbery as against accidental loss. 2 In a case where 
 a carrier had given two notices, he was held to be bound by 
 the least beneficial to himself. 3 And where a carrier placed 
 a board in his office, giving notice that he would not be an- 
 swerable for jewels, however small their value, unless entered 
 as such, but circulated handbills stating generally that he 
 would not be answerable for any article above the value of 51., 
 unless entered as such, it was decided that he was answerable 
 for the loss of jewels,' although they were not entered as such, 
 if they were under the value of 5l. i In the case of Kiley v. 
 Home, 5 which was an action brought to recover damages for 
 the loss of goods which had been intrusted to the defendants, 
 as common carriers, to be conveyed by them from Kettering 
 to London, and which had, according to the declaration of the 
 plaintiff, been lost through the defendants' negligence, the 
 question of the effect of a notice came before the court. 
 
 Sec. 118. To what Notice applies. — It appeared that the 
 plaintiffs were silk-weavers, residing in London, and carrying 
 on business there and at Kettering; that the defendants' 
 coach ran from the " George and Blue Boar," London, to Ket- 
 tering and back ; and that, at the " George arid Blue Boar," 
 there was a notice to the effect that the proprietors of coaches 
 which set out from that office would not be responsible for 
 goods above the value of 51, unless entered as such, and paid 
 for accordingly. It was further proved that the plaintiffs 
 were aware of this notice, and were in the habit of sending 
 goods up and down by the defendants' coach ; that the goods 
 in question — silks, to the value of about 46Z. — were deliv- 
 ered to the defendants by the plaintiffs' servant, at the defend- 
 ants' office, at Kettering, to be conveyed to London, and that 
 
 1 Maving v. Todd, 1 Stark. 72; 8 Mimn v: Baker, 2 Stark. 255. 
 
 4 Camp. 225. Aud see Hill v. Trent * Cobden v. Bolton, 2 Camp. 108. 
 & Mersey Navigation Co., 5 T. R. 6 Riley v. Home, 5 Bing. 217; 
 
 389;lEsp. 36. 2M. &P. 331. 
 
 2 Covington v. Willan, Gow, 115. 
 
198 THE LAW OP CARRIERS. 
 
 the servant saw no such notice in the office at Kettering ; and, 
 finally, it was proved that the goods never were delivered to 
 the plaintiffs. In this case it was decided that the notice in 
 the " George and Blue Boar " applied, not only to the journey 
 from London to Kettering, but also to the return journey from 
 Kettering to London. Best, C. J., in giving judgment, said: 
 " As the law makes the carrier an insurer, and as the goods 
 he carries may be injured or destroyed by many accidents 
 against which no care on the part of the carrier can protect 
 them, he is as much entitled to be paid a premium for his in- 
 surance of their delivery at the place of their destination, as 
 for the labor and expense of carrying them there." 
 
 Sec. 119. Principle of. — Now it seems to us that this prin- 
 ciple underlies the whole law with regard to notice. Insur- 
 ance may be a trade, just as carrying is, and these -two trades 
 may be conjoined or combined, either by the will of the indi- 
 vidual or by the force of the common law. When by the 
 force of the common law these two trades are necessarily 
 associated, the carrier has evidently a perfect right to his 
 remuneration from both. He is entitled to be paid for carry- 
 ing the goods, which cannot be done without time, trouble, 
 and expense, and he is entitled to ask an amount which will 
 enable him to make good the losses of his customers' goods, 
 when any such loss occurs. All such matters come to be 
 questions of arithmetic. It is not difficult to ascertain what 
 amount of premium a carrier will have to demand from his 
 customers, as the number of casualties is an ascertainable fact, 
 if he has any knowledge of the value of the articles intrusted 
 to him. If he has no means of discovering the value, if he is 
 precluded by law from demanding, by notice, a statement of 
 the value of tne articles given to him to be carried, all he 
 could do would be to consider the value of the goods which 
 are ordinarily sent by mankind, and from that knowledge to 
 arrive at a rough average of the value of every package or 
 parcel. As, however, the value of many parcels which are at 
 the present time intrusted to carriers is exceedingly great, 1 
 
 1 Best, C. J., in Riley v. Home, immense value is now compressed into 
 said : " By means of negotiable bills a very small compass. Parcels con- 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ET-C. 199 
 
 the average value of every package would be very high. 
 Under these circumstances, a very high premium would have 
 to be charged upon every closed parcel of which the carriers 
 did not know the contents, and that circumstance would put 
 an end to the traffic in articles of comparatively little value, 
 for it would evidently be unjust that an individual who was 
 sending a pair of gloves should pay such a premium for their 
 insurance as would cover the loss of a parcel of negotiable 
 bills. As this would inevitably have resulted from carrying 
 the common-law doctrine of insurance to its fullest extent, 
 the practice of notices became general. By their use a carrier 
 can demand to know what risk he is to take upon every arti- 
 cle, and make each one pay in proportion to the actual risk 
 which is undertaken in connection with the goods which they 
 bring to him to be conveyed. This is evidently an advantage 
 to the public. A uniform rate of payment may be admirable 
 for the carriage of letters and messages, but it will no more 
 do in connection with insurance than it would do with regard 
 to the purchase of articles generally. It has not as yet been 
 argued that a uniform rate of payment for pianos, pinafores, 
 estates, or eatables would be an advantage. The greatest 
 good arises to the community from the system which allows 
 every one to pay in proportion to the risk which the insurer 
 runs, that risk being calculable from the number of known 
 casualties and the amount of the business of the insurer. 
 
 Sec. 120. Former Doctrine. — Yet this doctrine has not 
 always found favor in the eyes of lawyers. In the case of 
 Hyde v. The Proprietors of the Trent and Mersey Navigation, 1 
 Lord Kenyon said : " There is a difference where a man is 
 chargeable by law generally and where on his contract. 
 Where a man is bound to any duty, and chargeable to a cer- 
 
 taining these bills are continually sent amongst several different persons, or 
 
 by common carriers. As tbe law com- one insurer undertakes for the insur- 
 
 pels carriers to undertake for the se- anee of the whole) always have the 
 
 curity of what they carry, it would be amount of what they are to answer for 
 
 most unjust if it did not afford them a specified in the policy of insurance." 
 means of knowing the extent of their * 1 Esp. 36. See also 1 T. K. 
 
 risk. Other insurers (whether they 387. 
 divide the risk, which they generally do, 
 
200 THE LAW OP CARRIERS. 
 
 tain extent by the operation of law, in such a case he cannot 
 by any act of his own discharge himself. As in the case of 
 common carriers, who are liable by law, in all cases of losses 
 except those arising from the act of God or of the king's ene- 
 mies, they cannot discharge themselves. from losses happening 
 under these circumstances by any act of their own ; as by giv- 
 ing notice, for example, to that effect." * It is impossible to 
 see upon what principle this rule was laid down, and upon 
 what grounds it was for a considerable time received, without 
 doubt or question, by the English judges. But even after* the 
 rigor of this rule had ceased, and when it was replaced by the 
 more equitable doctrine that we have indicated above, many 
 judges seemed to regret that the power of a carrier to limit 
 his liability had ever been admitted. This doctrine still pre- 
 vails in the United States, and neither a public nor a general 
 notice by a carrier that he will not be responsible for freight, 
 or that it will be at the risk of the owners, will vary the 
 carriers' liability. 2 Notice by publication in newspapers, or 
 printed upon receipts given for freight, or tickets sold to pas- 
 sengers, does not have the effect to vary the carriers' liability, 
 unless it is proved that the person against whom it is asserted 
 had knowledge of the terms thereof, the burden of establish- 
 ing which is always upon the carrier. 3 Nor will such notice, 
 
 1 The May Queen, 1 Newb. (U. S. (N. T.) 591 ; Michigan, &c. R. R. Co. 
 C. C.) 464 ; New Jersey Steam Navi- v. Hale, 6 Mich. 243 ; Judson v. West- 
 gation Co. v. Merchants' Bank, 6 How. ern B. B. Co., 6 Allen (Mass.), 
 (U. S.) 344. 486. 
 
 2 Dewort v. Loomer, 21 Conn. 8 Southern Express Co. v. Newby, 
 245 ; Kimball v. Rutland, &c. B. R. 36 Ga. 635 ; Hollister v. Nowlen, 
 Co., 26 Vt. 247; Moses v. Boston, 19 Wend. (N. Y.) 234; Cole o. 
 &c. R. R. Co., 32 N. H. 523 ; Dorr Goodwin, 19 Wend. (N. Y.) 251. In 
 v. New Jersey Steam Navigation Co., Pennsylvania the carrier's liability may 
 11 N. Y. 485 ; Southern Express be restricted by general notice, but the 
 Co. v. Newby, 36 Ga., 635 ; Smith onus of establishing it is upon the 
 v. North Carolina R. R. Co., 64 N. C. party setting it up, and must be such 
 235 ; Hollister v. Nowlen, 19 Wend, as amounts to actual notice, and 
 (N. Y.) 234 ; Jones v. Voorhees, 10 merely emblazoning the general object 
 Ohio, 145 ; Clark v. Faxon, 21 Wend, on a check, ticket, or notice in large 
 (N. Y.) 153; Camden Transportation letters, but stating the restriction in 
 Co. v. Belknap, 21 Wend. (N. Y.) small ones, is held insufficient. Ver- 
 354; Powell v. Myers, 26 Weild. ner v. Sweitzer, 32 Penn. St. 208. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 201 
 
 even when its contents are known to the shipper of goods, be 
 operative, unless it is shown that he assented thereto, nor in 
 any case can such a notice be operative to restrict the car- 
 riers' liability unreasonably. 1 In New York it is held that 
 the liability of a carrier cannot be limited by a mere notice, 
 even though it is brought home to the knowledge of the ship- 
 per, unless the circumstances are such as to establish the 
 shipper's assent thereto, so that it can be said to form a part 
 of the contract between the parties ; and mere notice affords 
 no evidence of assent on the part of the owner, and he has a 
 right to repose on the common-law liability of the carrier, who 
 cannot relieve himself from such liability by any act of his 
 own. 2 In all such cases the question of assent is one of fact 
 for the jury, upon evidence aliunde, and all the circumstances 
 attending the giving of the receipt in which the notice is con- 
 tained, may be given in evidence to enable the jury to decide 
 
 And, according to the same case, 
 the effect of such a notice is no 
 more than to render the bailee a 
 private carrier for hire. In Michigan 
 the carrier may restrict his liability as 
 an insurer by special notice ; but the 
 carrier must establish the shipper's 
 assent thereto, and mere proof that 
 the shipper has seen a notice restrict- 
 ing the carrier's liability is not suffi- 
 cient to establish his assent thereto. 
 McMillan v. Michigan Southern R. R. 
 Co., 16 Mich. 79. 
 
 1 Farmers', &c. Bank v. Champlain 
 Transportation Co., 23 Vt. 186 ; Fille- 
 brown v. Grand Trunk Rail. Co., 55 
 Me. 462 ; Sager v. Portsmouth, &c. 
 R. R. Co., 31 Me. 228 ; Southern 
 Express Co. v. Crook, 44 Ala. 468. 
 
 2 Cole v. Goodwin, 19 Wend. 
 (N. Y.) 251; Camden Co. v. Bel- 
 knap, 21 Wend. (N. Y.) 354. See 
 also Clark v. Faxon, 21 Wend. (N. Y.) 
 153 ; Hollister v. Nowlen, 19 Wend. 
 (N. Y.) 234; Powell v. Mvers, 26 
 Wend. (N. Y.) 591 ; Alexander v. 
 Greene, 3 Hill (N. Y.), 9 ; 7 Hill (N. 
 Y.), 533 ; Dorr v. New Jersey Steam 
 
 Navigation Co., 11 N. Y. 485 ; Gotto. 
 Dinsmore, -111 Mass. 52. Thus it has 
 been held that notice that all baggage is 
 at the risk of the owners, although it is 
 brought home to the owner, does not 
 excuse the carrier from losses arising 
 from the acts' of himself or his ser- 
 vants, nor from actual negligence, nor 
 the inefficiency of his machinery or 
 vehicles, though it cannot be discov- 
 ered by the eye. Camden R. R. & 
 T. Co. v. Burke, 13 Wend. (N. Y.) 
 611. And evidence that a notice is 
 placarded in all the offices of the carrier 
 in conspicuous places will not warrant 
 an inference that the shipper or passen- 
 ger had knowledge of its terms. Hol- 
 lister v, Nowlen, 19 Wend. (N. Y.) 234 ; 
 Cole v. Goodwin, 19 Wend. (N. Y.) 
 251. Nor is such assent established 
 by the circumstance that the shipper 
 accepted a receipt for the goods, in 
 which such notice was written or 
 printed, without dissent. Railroad 
 Co. o. Manufacturiug Co., 16 Wall. 
 (U. S.) 319 ; Southern Express Co. 
 v. Armstead, 50 Ala. 350. 
 
202 
 
 THE LAW OF CARRIERS. 
 
 the question. 1 The rule generally adopted is, that no notice, 
 general or special, can operate as a limitation upon the car- 
 rier's liability, unless the shipper assents thereto before the 
 goods were shipped, and in such a manner and under such 
 circumstances that it can be said to enter into and form a 
 part of the contract between the parties. 2 But as it is now 
 universally known that neither individuals nor companies en- 
 gaged as carriers undertake to assume the common*law liabili- 
 ties of a common carrier, but issue receipts or give bills of 
 lading containing certain limitations upon their liability, it 
 seems to be generally conceded that the giving of such a 
 receipt or bill of lading containing such limitations raises a 
 presumption that the shipper knew of and assented to such 
 limitations, and throws the burden upon him of proving his 
 lack of knowledge thereof. 3 
 
 1 Field v. Chicago, &c. E. R. Co., 
 71 111. 458 ; Woodruff v. Sherrard, 
 16 N. Y. s. c. 322 ; Madan v. Sher- 
 rard, 73 N. Y. 329 ; Merchants' De- 
 spatch Co. v. Theilbar, 86 111. 71; 
 Adams Express Co. v. King, 3 HI. 
 App. 316. In Merchants' Despatch 
 Co. v. Cornforth, 3 Cal. 280, a com- 
 mon carrier orally contracted, in win- 
 ter, to transport a lot of oranges, 
 lemons, and bananas in a refrigerator 
 car through from New York to Den- 
 ver without change. After the fruit 
 was loaded in the car, the carrier de- 
 livered to the owner's agent a hill of 
 lading containing a printed condition 
 not to be liable for injury occasioned 
 by the weather, over which was written 
 the words " general release." The fruit 
 reached Denver in an ordinary box car, 
 and badly frozen. Held, that the car- 
 rier was liable for the damages. A 
 consignee had a special contract with 
 the carrier to carry at reduced rates at 
 the owner's risk. Where the owner 
 shipped the goods himself, the court 
 held, in an action by him against the 
 carrier for an injury to the goods, that 
 he might recover if it was not shown 
 
 that he had notice of the consignee's 
 contract for carriage at theowner*s risk, 
 even if he had accounted with the 
 consignee for the freight paid by the 
 latter at the reduced rates. White ». 
 Goodrich Transportation Co., 46 Wis. 
 493. A railroad company accustomed 
 to carry live-stock at the owner's risk 
 delivered to a shipper of certain horses 
 a receipt therefor, marked " 0. R." 
 It was held that the presumption of 
 the owner's assent to the risk, raised 
 by his possession of such receipt, was 
 not overcome by his testimony that he 
 did not " see " the letters " 0. II." — 
 not that he did not understand their 
 meaning to be " owner's risk." Mor- 
 rison v. Phillips, &c. Construction Co., 
 44 Wis. 405. 
 
 2 Brown v. Adams Express Co., 15 
 W. Va. 812 ; Michigan, &c. R. fi. 
 Co. v. Boyd, 91 111. 268 ; American 
 Express Co. v. Spellman, 90 111. 455 j 
 Merchants' Despatch Co. v. Leyser, 
 89 111. 43 ; Merchants' Despatch Co. 
 v. Jaesting, 89 111. 152. 
 
 8 Bank of Kentucky v. Adams Ex- 
 press Co., 93 U. S. 174 ; Squires v. 
 New York Central R. R. Co., i 
 
LIMITED RESPONSIBILITY OF COMMON CARRIEBS, ETC. 203 
 
 SEC. 121. Modifications in the Principle. — However, the 
 doctrine did prevail, and we have seen that it was not only 
 firmly established, but that the extent of its applicability had 
 been somewhat clearly defined by the various cases which 
 came before the courts, even before the legislature made a law 
 to the effect. But other cases indicate other modifications in 
 the principle. Where a carrier by water had given notice 
 " that he would not be answerable for any damage unless oc- 
 casioned by want of ordinary care in the master or crew of the 
 vessel, in which case he would pay 10Z. per cent upon such 
 damage, so as the whole did not exceed the value of the vessel 
 and freight," he was held to have given an implied promise 
 that the vessel should be tight and fit for the purpose, and 
 that he would be answerable for the damage arising from 
 leakage, upon the ground that a loss happening by the per- 
 sonal default of the carrier himself (such as the not providing 
 a sufficient vessel) was not within the scope of such a notice 
 
 239; Hoadley v. Northern Trans- 
 portation Co., 115 Mass. 304; Pem- 
 berton Co. v. New York Central R. R. 
 Co., 104 Mass. 144 ; Grace v. Adams, 
 100 Mass. 505 ; Gott v. Dinsmore, 111 
 Mass. 45. In these oases, as indeed 
 in all of them, a distinction is made 
 between restrictions contained in a 
 mere receipt for goods and a bill of 
 lading ; and while actual knowledge of 
 and assent to the restrictions in the 
 case of a receipt is necessary, and the 
 mere circumstance that the receipt 
 contains such restrictions is not con- 
 clusive that the plaintiff knew thereof, 
 Gott w. Dinsmore, ante, yet in the 
 case of a bill of lading, as it embodies 
 the contract between the parties, the 
 plaintiff will not be permitted, in the 
 absence of fraud, to show that he did 
 not read the bill of lading or know of 
 such restrictions. Grace v. Adams, 
 ante. See, on general proposition in 
 the text, Evansville, &c. R. R. Co. v. 
 Androscoggin Mills, 22 Wall. (U. S.) 
 594; Earnham v. Railroad Co., 55 
 
 Penn. St. 53 ; King v. Woodbridge, 
 34 Vt. 565 ; Steers v. Steamship Co., 
 57 N. Y. 1 ; Huntington v. Dinsmore, 
 4 Hun (N. Y.), 66 ; Sneider v. Adams 
 Express Co., 63 Mo. 376; Kallman v. 
 Express Co., 3 Kan. 205 ; Kirkland v. 
 Dinsmore, 62 N. Y. 171 ; Robinson v. 
 Merchants' Despatch Co., 45 Iowa, 
 470; Swindler v. Hilliard, 2 Rich. 
 (S. C.) 286; McMillan v. Railroad 
 Co., 16 Mich. 112 ; Boorman ». Amer- 
 ican Express Co., 21 Wis. 154; 
 Steele v. Townsend, 37 Ala. 247. But 
 in Illinois the rule is otherwise ; and 
 the mere acceptance of a receipt con- 
 taining limitations upon the carrier's 
 liability does not raise any presump- 
 tion that the bailor knew thereof, and 
 the carrier assumes the burden of es- 
 tablishing such knowledge and assent. 
 Adams Express Co. v. Haynes, 42 111. 
 89; United States Express Co. v. 
 Haynes, 67 111. 137 ; Anchor Line v. 
 Dator, 68 111. 369; Adams Express 
 Co. v. Stettaners, 61 111. 184. 
 
204 THE LAW OP CAERIERS. 
 
 which was meant to exempt the carrier from losses by acci- 
 dent or chance, <fcc, even if it were competent to a common 
 carrier to exempt himself by a special acceptance from the 
 responsibility cast upon him by the common law for a reason- 
 able reward to make good all losses not arising from the act 
 of God, or the king's enemies." 1 
 
 Sec. 122. Extent of Limitation. — Express Agreement. — 
 Much difficulty has been felt in the decision of questions 
 which have arisen as to the extent to which carriers can limit 
 their liability, not by special contract, but by general notice. 
 Where the limitation of the responsibility is effected by means 
 of an express agreement between the parties, no reason can 
 be suggested why there should be any restrictions upon the 
 right a man has to bind himself to do or to suffer anything 
 which is not in contravention of some law, and is reasonable 
 when looked at in relation to the duty which a man has im- 
 posed upon him by law to accept goods to carry. Such con- 
 tracts are, of course, binding upon both parties. While they 
 indicate the extent of responsibility undertaken by the carrier 
 in connection with any particular articles intrusted to him, 
 they also indicate under what circumstances the consignor 
 shall be entitled to recover for loss or injury done to his goods 
 by events which do not fall under .the description of those 
 things which limit a carrier's responsibility at common law. 
 But why a man should not, for some commensurate advantage, 
 forego his right to recover from the bailee in case of loss or 
 damage being done to his goods under other circumstances 
 than those which are produced in the ordinary course of 
 nature, or by a national foe, it is impossible to say. Why a 
 carrier should not, by special contract, denude himself of the 
 character of an insurer which the common law imposes, if 
 the other party clearly understands that the contract is to 
 the effect that the carrier shall simply convey the goods, and 
 have no responsibility in connection with them, is a question 
 which it would be difficult to answer. Every consideration 
 points to the expediency of making the connection which 
 
 1 Lyon v. Mells, 5 East, 428 ; 1 Smith, 418 ; Hutton v. Bolton, 3 Dougl. 59. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 205 
 
 exists at common law between the trade of a common carrier 
 and an insurer, a connection which may be dissolved by the 
 express wish of both the parties to a contract of bailment. 1 
 
 Sec. 123. General Notice. — But much difficulty is felt in 
 regard to the limitation of the carriers' obligations and re- 
 sponsibilities by means of a general notice. 2 General notice 
 can be given in so many ways, it may assume so many forms, 
 that a mere definition is a matter of difficulty. But when one 
 considers that a notice, which is to have the effect of doing 
 away with an important responsibility which is imposed upon 
 a certain class of men by law, must, in order to have that 
 effect, be brought to the knowledge of the party for whose 
 advantage the responsibility was imposed, the difficulty of the 
 subject is increased. 
 
 Sec. 124. Must come to Knowledge of Owner of Goods. 
 — A notice, to affect a man's conduct, must have been in his 
 thoughts. It is unfair to allow ignorance to prejudice a man 
 in his social relations, and it must be remembered that it is 
 for the sake of the ignorant and weak that the laws exist. In 
 one aspect the law itself seems to ignore this principle, by 
 the existence of its fiction that all men are supposed to be 
 acquainted with the law. The absolute expedience, and the 
 possibility which each man enjoys of becoming acquainted 
 with the law, justifies this presumption. And the fact that 
 all good laws are expressions of moral conceptions with regard 
 to acts goes far, in a country where the laws are admirable, 
 to raise the presumption into a truth. But under no conceiv- 
 able circumstances could it be just to allow an individual 
 
 1 New Jersey Steam Navigation &e. R. R. Co. v. Skeels, 3 W. Va. 
 
 Co. v. Merchants' Bank, 6 How. 556; New Orleans, &c. Ins. Co. v. New 
 
 (U. S.) 344 ; York Co. v. Central R. R. Orleans, &o. R. R. Co., 20 La. Ann. 
 
 Co., 3 Wall. (U. S.) 107 ; Wallace v. 302. As to proof of such contract, 
 
 Mathews, 39 Ga. 617 ; Express Co. see Southern Express Co. v. Purcel, 
 
 v. Kountze, 8 Wall. (U. S.) 341; 37 Ga. 103; Evansville, &c. R. R. 
 
 Simon v. The Fung Shuey, 21 La. Co. v. Young, 28 Ind. 516 ; McMillan 
 
 Ann. 363 ; Lamb v. Camden, &c. R. R v. Michigan Southern, &c. R. R. Co., 
 
 Co., 2 Daly (N. Y.), 454; Indianapo- 16 Mich. 79. 
 lis, &c. R. R. Co. v. Allen, 31 Ind. 2 Smith v. North Carolina R. R. 
 
 394; Michigan, &c. R. R. Co. v. Co., 64 N. C. 235. 
 Heaton, 31 Ind. 397, n. ; Baltimore, 
 
206 
 
 THE LAW OF CARRIERS. 
 
 trusting in the legal assurance that a carrier is to be respon- 
 sible for all loss and damage done to the goods intrusted to 
 him except in cases of loss by the enemies of the state or the 
 act of God, to be prejudiced by a notice which had been given 
 by the carrier, but which had never come to his knowledge. 
 In each case, therefore, the existence of such a notice must be 
 brought to the knowledge of the party consigning the goods, 
 in order that it may debar him from his right to recover in 
 the event of loss or injury. 1 
 
 Sec. 125. Factual Limitation. — In some cases the facts 
 bring a knowledge of limitation of responsibility home to the 
 individual. 2 Thus, if a man is known generally as a carrier 
 
 1 Hollister v. Nowlen, 19 Wend. 
 (N. I.) 234; Cole v. Goodwin, 19 
 Wend. (N. Y.) 251; Southern Ex- 
 press Co. v. Newby, 36 Ga. 635; 
 Sager v. Portsmouth, &c. R. R. Co., 
 31 Me. 428; Eillebrown v. Grand 
 Trunk Rail. Co., 55 Me. 462 ; Pren- 
 tice v. Decker, 49 Barb. (N. Y.) 21 ; 
 Limburger v. Westcott, 49 Me. 283 ; 
 Farmers' &c. Bank v, Champlain 
 Transportation Co., 23 Vt. 186 ; South- 
 ern Express Co. v. Purcell, 37 Ga. 
 103. Notwithstanding notice on the 
 passage-ticket that "passengers are 
 not allowed to carry baggage beyond 
 $100 in value, and that personal, un- 
 less notice is given, and an extra 
 amount paid, at the rate of the price 
 of a ticket for every $500 in value," 
 held, that the plaintiff was entitled to 
 recover the value of his trunk, and of 
 such portion of the contents as is cus- 
 tomarily known and carried as trav- 
 ellers' baggage, being reasonable in 
 amount and value, although worth 
 more than $100, and although nothing 
 extra was paid for baggage exceeding 
 in value that sum. In considering 
 what amount of baggage the plaintiff 
 might reasonably have had, the jury 
 were allowed to take into view his 
 residence, business, station in life, the 
 place from which he came and whither 
 he was going. 
 
 Passage-tickets, given to passen- 
 gers by railroads and steamboats, are 
 rather tokens or vouchers that the 
 passengers have paid their fare, and 
 are entitled to their seats, and to be 
 surrendered when that right is recog- 
 nized, than special contracts fixing and 
 regulating the terms of passage, amount 
 of baggage, &c. Nevins v. Bay State, 
 &c. Co., 4 Bosw. (N. Y.) 225. 
 
 In Pennsylvania a carrier may 
 limit his liability by a general notice, 
 but its terms must be clear and ex- 
 plicit ; and the party with whom the 
 carrier deals must be fully informed of 
 the terms and its effects. The excep- 
 tion goes on the ground of a contract, 
 express and implied; and where the 
 notice was in the English language, 
 and the passenger was a German, who 
 did not understand the English lan- 
 guage, it was held to be incumbent on 
 the carrier to prove that the passenger 
 had knowledge of the limitation ; and 
 if tickets, without anything more, are 
 evidence of a special contract, yet they 
 must be printed in a language which 
 the passenger understands, or their 
 terms must be explained to him. Cam- 
 den, &c. R. R. Co. v. Baldauf, 16 Pa. 
 St. 67. 
 
 2 See Macklin v. New Jersey Steam- 
 boat Co., 7 Abb. Pr. (N. Y.) k. s. 
 
ETC. 207 
 
 of one kind of article, and he, at the request of the consignor, 
 receive goods of a different description from those in connec- 
 tion with which he generally plies his trade, he does not neces- 
 sarily thereby assume the same responsibility in connection 
 with these articles which he has in other cases. This is only 
 fair. His trade is carrying articles of little value. All his 
 business is conducted with reference to these. He has not 
 to take the same precautions that would be necessary if he 
 undertook the conveyance of valuables. When, therefore, an 
 individual who is aware of the nature of his trade requests 
 him to convey a parcel containing jewelry, he must do so at 
 his own risk. It would be as unjust that the carrier should 
 under such circumstances be held an insurer, as it would be 
 to regard him in that light with reference to a table or a chair 
 which he was allowing to remain in his house. The doctrine 
 of insurance is limited in relation to the man's trade if the 
 trade is limited, and the limitation is a fact which is known to 
 all; the insurance is also limited in relation to the scope of 
 the profession that a man makes to the public. Another con- 
 sideration would point to the same conclusion. If a man 
 undertakes a greater risk, he ought to be paid at a higher 
 rate. The risk itself is a thing for which remuneration is not 
 only possible but equitable. But, further, it is reasonable to 
 suppose that the precautions which will be necessary in the 
 cases where the risk is great will be more expensive than 
 the ordinary means which are taken to secure safety where 
 the probability of loss or damage is inconsiderable. This in- 
 dicates the right that the carrier has to demand such informa- 
 tion from the owner of the goods as will enable him to decide 
 upon the proper amount of compensation which he will require 
 for his services and risk, and the amount of care which will 
 be necessary to an efficient performance of his task. This 
 demand is in every respect reasonable. And it is one of the 
 limitations which it is allowable for a carrier to make of his 
 common-law responsibility. There can be no hardship upon 
 the party intrusting his goods to the carrier, for his own sense 
 of prudence ought to have informed him of the necessity 
 of some such demand, and a truthful compliance with the 
 request. 
 
208 THE LAW OP CARRIERS. 
 
 Sec. 126. False Statement of Value, Effect of. — Therefore, 
 if the owner of the goods gives an answer false in a material 
 point, the carrier is absolved from his responsibility for any 
 loss except such as may be due to negligence or misconduct. 1 
 It, however, leaves the duty of inquiry upon the shoulders of the 
 carrier. 2 "Where, however, the question as to the extent to 
 which, and the circumstances under which, a general notice 
 will limit a carrier's liability comes to be considered, we shall 
 find less reason to congratulate ourselves on the certitude of 
 the law. Some decisions even go the length of allowing a 
 carrier, without express contract, but simply by means of a 
 general notice, to free himself entirely from the duty and re- 
 sponsibility which attach to his calling at common law. 3 
 
 Sec. 127. Rule in Maving v. Todd. — In the case of Mav- 
 ing v. Todd, 4 Lord Ellenborough, speaking of the power 
 which wharfingers and carriers have of limiting their responsi- 
 bility, said, " Since they can limit it to a particular sum, I think 
 they may exclude it altogether, and that they may say we will 
 have nothing to do with fire ; " and while, in answer to a sug- 
 gestion from one of the .counsel, he admitted that they were 
 bound to receive the goods, he added, " but they may make 
 their own terms." In another case, where the question as to 
 what was sufficient notice to limit a carrier's responsibility, 
 and in which it was decided that it was inadmissible to read 
 in evidence an advertisement in a newspaper, by which notice 
 of such limitation had been given, unless it was first proved' 
 that the plaintiff was in the habit of reading the paper in 
 which the advertisement appeared, the same learned judge, in 
 summing up, said : " If this action had been brought twenty 
 years ago, the defendant would have been liable, since by the 
 common law a carrier is liable in all cases, except two, where 
 the loss is occasioned by the act of God, or of the king's 
 enemies, using an overwhelming force, which persons with 
 
 1 Gibbon v. Paynton, 4 Burr. 2298. i Maving v. Todd, 1 Stark. 72 ; 1 
 
 2 Phillips v. Earle, 8 Pick. (Mass.) Camp. 225 ; and see Hill v. Trent 
 182 j Brooke v. Pickwick, 4 Bing. 218. Mersey Navigation Co., 5 T. B. 389 ; 1 
 
 8 Camden, &c. R. R. Co. V- Bal- Esp. 36. 
 dauf, 16 Penn. St. 67- 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 209 
 
 ordinary means of resistance cannot guard against." And he 
 further remarked that, " if the carriers notified their terms to 
 the person bringing the goods by advertisement, which, in all 
 probability, must have attracted the attention of the person 
 who brought the goods, they were delivered upon those 
 terms." 1 A few other cases may be mentioned to show in 
 what condition the law was before the passing of the statute 
 1 Will. IV. c. 68, of which we shall hereafter have occasion to 
 speak. 
 
 SEC. 128. Extinction of Common-law Duties by Notice. — 
 These cases show that there existed a doctrine that, notwith- 
 standing the admitted duty which devolved upon a carrier to 
 carry and to insure, he could by notice throw off both those 
 duties, and so defeat the well-considered policy of the common 
 law. It seemed that the existence of a notice which had come, 
 or which might have come, to the knowledge of the party in- 
 trusting his goods to the carrier raised the presumption of a 
 special contract as against him. This doctrine ignored the 
 important fact that there was, even before any contract, a duty 
 upon the part of the carrier to accept the consignor's goods, 
 and looked upon the two parties as equal in every respect, .and 
 the contract as if it had been entered into by persons having 
 an entirely voluntary relation. This was evidently unjust, and 
 was a denial of the doctrine of the expediency of the duties 
 devolved upon a carrier by the common law in relation to his 
 public employment. It looked upon a general notice as proof 
 of a special contract instead of regarding it as a proposal for a 
 special contract upon the part of the carrier, which it was in 
 the power of the consignor to refuse or accept. 
 
 Sec. 129. Onus of Proof. — Had it done the latter, the onus 
 of proving the acceptance of these terms would have been upon 
 the carrier. As it did the former, the onus of proving that 
 there was no special contract was upon the owner of the goods. 
 The following cases will also indicate the circumstances under 
 which a notice could in these pre-statute times be regarded as 
 
 1 Leeson v. Holt, 1 Stark. 186, and § 1 ; Hopkins v. Westoott, 5 Blatehf. 
 (U. 8. C. C.) 64. 
 
 14 
 
210 THE LAW OP CARRIERS. 
 
 binding the owner in the same way that a special contract 
 would. 
 
 Sec. 130. Rule in Macklin v. Waterhouse and Cobden v. 
 Bolton. — Thus it was held that a notice by carriers, that they 
 would not be accountable for the loss or damage of goods, 
 unless the terms of the notice were complied with, protected 
 them where the goods were stolen, as well as against loss 
 caused by accidental circumstances. 1 Where a carrier gave 
 notice that he would not be liable for goods lost beyond the 
 value of 51., it was held that that condition extended to the 
 property of passengers going by the coach, or other carriage, 
 as well as to goods sent to be carried only. 2 A notice that the 
 proprietor of a general coach-office would not be responsible 
 for the carriage of parcels of more value than 51., unless 
 entered as such, was, in the case of Macklin v. Waterhouse, 3 
 held to be of no avail for the proprietor of a coach, who took 
 the parcel from the office, unless it was otherwise shown that 
 he was connected with the office. This case only shows that 
 one man's notice is not a protection for another man. It 
 would scarcely seem to have required argument. In the case 
 of Cobden v. Bolton, 4 the defendant, a carrier, placed a board 
 in his office, giving notice that he would not be answerable for 
 jewels, however small their value, unless entered as such, but 
 circulated handbills stating generally that he would not be 
 answerable for any article above the value of 51., unless entered 
 as such ; it was held that he was answerable for the loss of 
 jewels, although they had not been expressly entered as such, 
 if under the value of 51. Even in those days, it was necessary 
 to prove that the notice had come to the knowledge of the 
 owner of the goods, or that there was at least every probability 
 that it had come to his knowledge. 6 This is the rule in this 
 country, and the carrier takes the burden, not only of proving 
 
 1 Covington v. Willan, Gow, 115. 6 Kerr v. Willan, 6 M. & S. 150; 
 
 8 Clarke v. Gray, 6 East, 564; 2 2 Stark. 53. But a notice to the 
 
 Smith, 622 ; 4 Esp. 177- vendor was held to be equivalent to a 
 
 8 5 Bing. 212 ; 2 M. & P. 819. notice to the vendee who directed the 
 
 See also Newborn «. Just,2C.&P. 76. goods to be sent. Maving «. Todd, 1 
 
 4 2 Camp. 108. See Munn v. Stark. 72. 
 Baker, 2 Stark. 255. 
 
LIMITED RESPONSIBILITY OF COMMON CARRIERS, ETC. 211 
 
 the shipper's knowledge of the restrictions, but also of his 
 assent thereto, 1 as in all cases, in order to make such notice 
 available, it must be such that it operates as a special contract 
 between the parties, changing the carrier's liability from that 
 raised by the common law to that of a contract liability. 2 
 
 1 Blossom v. Dodd, 43 N. Y. 264; 
 Baltimore, &c. B. R. Co. v. Brady, 
 32 Md. 333 ; Lawrence v. New York, 
 &e. B. B. Co., 36 Conn. 63 ; Millan 
 v. Michigan, &c. B. B. Co., 16 Mich. 
 79 ; Judson v. Western B. B. Co., 6 
 Allen (Mass.), 486. 
 
 2 In Blossom v. Dodd, 43 N. Y. 
 264, tbis doctrine was well illustrated. 
 In that case the plaintiff was a passen- 
 ger on the New Jersey Central Bail- 
 road on the 17th of October, 1866, 
 travelling toward New York. Before 
 reaching Jersey City a messenger of 
 Dodd's express — a baggage express 
 company, doing business in the city of 
 New York, and of which defendant 
 is president — passed through the train 
 upon which plaintiff was, asking and 
 receiving baggage-checks of passengers 
 and agreeing to deliver the baggage in 
 such parts of New York as they should 
 direct. The plaintiff was asked if he 
 had any baggage to be delivered, and 
 he thereupon handed the messenger 
 two checks, and received a printed slip 
 with blank places in which the num- 
 bers of his checks were written with a 
 lead-pencil. With the exception of a 
 large advertisement at the top, the 
 printed parts of the slip were as fol- 
 lows : — 
 
 DODD'S EXPRESS. 
 N. J. R. R. Depot, Pier 13, N. R., j 
 No. 944 Bkoadway, N. Y. J 
 
 Articles or checks numbered as be- 
 low (for Dodd's Express) ; — 
 
 It is mutually agreed, and is part 
 of the consideration of the contract, 
 that Dodd's Express shall not be liable 
 for merchandise or jewelry contained in 
 
 baggage, nor for loss by fire, nor for 
 an amount exceeding one htodked 
 dollars upon any article unless spe- 
 cially agreed for in writing on the re- 
 ceipt and the extra risk paid therefor, 
 nor for baggage to railroad, steamboat, 
 or steamship lines after the same has 
 been left at the usual place of delivery 
 to such lines ; and the owner hereby 
 agrees that Dodd's Express shall be 
 liable only as above ; and it is further 
 agreed that said express shall not be 
 tiable for loss or damage unless the 
 claim therefor be made in writing at 
 their principal office, with this receipt 
 annexed, within thirty days thereafter. 
 
 Read this receipt. 
 
 At the time of plaintiff's receiving 
 the slip it was eleven o'clock at night, 
 and the cars were so dark that the 
 print could not be read. 
 
 One of the parcels of baggage rep- 
 resented by the checks was delivered. 
 The other, worth $260, was lost, while 
 in the hands of the express company. 
 This action was brought for its value, 
 and the defendant set up the stipula- 
 tion in the receipt as a limitation upon 
 his liability. The referee found for 
 the plaintiff, awarding him the full 
 value of the lost baggage. 
 
 The judgment was affirmed upon 
 appeal, Church, C. J., saying: "The 
 common-law liability of common car- 
 riers cannot be limited by a notice, 
 even though such notice be brought to 
 the knowledge of the persons whose 
 property they carry. Dorr v. New 
 Jersey Steam Navigation Co., 1 Kern. 
 485. But such liability may be lim- 
 ited by express contract, lb.; Bissell 
 
212 
 
 THE LAW OP CARRIERS. 
 
 Sec. 131. Notice to Principal. — As notice to the principal 
 is, upon obvious legal principles, notice to all the agents, it 
 
 v. New York Central R. R. Co., 25 
 N. Y. 442; French v. Buffalo, New 
 York, & Erie R. R. Co., 4 Keyes, 108. 
 
 " The principal question in this case- 
 is, whether there was a contract made 
 between the parties limiting the lia- 
 bility of the defendants to a loss of 
 $100 for the valise and its contents, 
 which the plaintiff intrusted to their 
 care. A. facsimile of the card upon 
 which the alleged contract was printed 
 has been furnished in the papers. It 
 does not appear, on examination, like 
 a contract, and would not, from its 
 general appearance, be taken for any- 
 thing more than a token or check 
 denoting the numbers of the checks 
 received, to be used for identification 
 upon the delivery of the baggage. 
 The larger portion of the printed mat- 
 ter is an advertisement, in large type. 
 The alleged contract is printed in very 
 small type, and is illegible in the night 
 by the ordinary lights in a railroad car, 
 and is not at all attractive, while other 
 parts of the paper are quite so. 
 
 " Considerable stress is laid upon the 
 fact that the words ' Read this receipt ' 
 were printed on the card in legible 
 type. The receipt reads, 'Received of 
 
 M articles or checks numbered 
 
 as below, 368-319.' 'For Dodd's 
 Express.' The blank is not filled, nor 
 is the receipt signed by any one. The 
 invitation is not to read the contract, 
 but the receipt. In order to read it 
 the paper must be turned sideways; 
 and no one, thus reading the receipt, 
 would suspect that it had any connec- 
 tion with the alleged contract, which 
 is printed in different and very small 
 type across the bottom of the paper. 
 If. is no part of the receipt, is not con- 
 nected with it, and is not referred to 
 in any other part of the paper. The 
 
 defendants are dealing with all classes 
 of thecommunity; and public policy.as 
 well as established piinciples, demand 
 that the utmost fairness should be ob- 
 served. This paper is subject to the 
 criticism made by Lord Ellemoil- 
 ot/gh, in Butler v. Heane, 2 Camp. 
 415, in which he said that 'it called 
 attention to everything that was at- 
 tractive, and concealed what was cal- 
 culated to repel customers ; ' and 
 added, ' If a common carrier is to be 
 allowed to limit his liability, he must 
 take care that any one who deals wilh 
 him is fully informed of the limits to 
 which he confines it.' Nor did the 
 nature of the business necessarily con- 
 vey the idea of a contract to the trav- 
 eller in such a manner as to raise the 
 presumption that he knew it was a 
 contract expressive of the terms upon 
 which the property was earned, or 
 limiting the liability of the carrier. 
 Baggage is usually identified by means 
 of checks or tokens, and such a card 
 does not necessarily import anything 
 else. At all events, to have the effect 
 claimed, the limitation should be as 
 conspicuous and legible as other por- 
 tions of the paper. In Brown v. East- 
 ern R. R. Co., 11 Cush. (Mass.) 97, 
 where the limitation was printed upon 
 the back of a passenger ticket, the 
 court says : ' The party receiving it 
 might well suppose that it was a mere 
 check, signifying that the party had 
 paid his passage to the place indicated 
 on the ticket.' In the cases of Pren- 
 tice v. Decker, 49 Barb. (N. ¥.) 21, 
 and Limburger v. Westcott, 49 Barb. 
 (N. Y.) 283, limitations were claimed 
 upon the delivery of similar cards of 
 another express company; and the 
 court held, in both cases, that such 
 delivery did not charge the persons 
 
LIMITED RESPONSIBILITY OF COMMON CARRIERS, ETC. 213 
 
 was, in the case of Mayhew v. Barnes, 1 held that if a stage- 
 coach proprietor has given the usual 51. notice to principals 
 
 receiving them with knowledge that 
 they contained contracts. A different 
 construction was put upon the delivery 
 of a similar card in Hopkins v. West- 
 cott, 6 Blatchf. (U. S. C. C.) 64; but 
 
 »fer that the learned judge who de- 
 red the opinion intended to decide 
 that something short of an express 
 contract will suffice to screen the car- 
 rier from his common-law liability, and 
 that a notice, personally served, which 
 could be read, would have that effect. 
 The attention of the court does not 
 seem to have been directed to the dis- 
 tinction between such a notice and a 
 contract. The delivery and accept- 
 ance of a paper containing the contract 
 may be binding, though not read, pro- 
 vided the business is of such a nature 
 and the delivery is under such circum- 
 stances as to raise the presumption 
 that the person receiving it knows that 
 it is a contract containing the terms 
 and conditions upon which the prop- 
 erty is received to be carried. In such 
 a case it is presumed that the person 
 asseuts to the terms, whatever they 
 may be. This is the utmost extent to 
 which the rule can be carried without 
 abandoning the principle that a con- 
 tract is indispensable: The recent 
 case of Grace v. Adams, 100 Mass. 
 560, relied upon by the defendant's 
 counsel, was decided upon this prin- 
 ciple. The plaintiff delivered a pack- 
 age of money to an express company, 
 and took a receipt containing a pro- 
 vision exempting the company from 
 liability. for loss by fire ; and the court 
 held that he knew that the paper con- 
 tained the conditions upon which the 
 money was to be carried, and was, 
 therefore, presumed to have assented 
 
 to them, although he did not read the 
 paper. The court says : ' It is not 
 claimed that he dicTnot know, when 
 he took it, that it was a shipping con- 
 tract, or bill of lading.' So, in Van 
 Goll v. South-Eastern Rail. Co., 104 
 Eng. C. L. 75, the same principle was 
 decided. Willes, J., said: 'Assum- 
 ing that the plaintiff did not read the 
 terms of the condition, it is evident she 
 knew they were there.' Keating, J., 
 said : ' It was incumbent on the com- 
 pany to show that such was the con- 
 tract. ... I think there was evidence 
 that the plaintiff assented to those 
 terms.' 
 
 " As to bills of lading and other 
 commercial instruments of like char- 
 acter, it has been held that persons 
 receiving them are presumed to know, 
 from their uniform character and the 
 nature of the business, that they con- 
 tain the terms upon which the property 
 is to be carried. But checks for bag- 
 gage are not of that character, nor is 
 such a card as was delivered in this 
 instance. It was, at least, equivocal 
 in its character. In such a case a 
 person is not presumed to know its 
 contents, or to assent to them. The 
 circumstances under which the paper 
 was received repel the idea of a con- 
 tract. No such intimation was made 
 to the plaintiff. He did not, and could 
 not if he had tried, read it in his seat. 
 It is found that he might have read it 
 at the end of the car, or by the lights 
 on the pier or in the ferry-boat ; and 
 it is claimed that he should have done 
 so, and, if dissatisfied, should have ex- 
 pressed his dissent. If he had done 
 so, and, in the bustle and confusion 
 incident to such occasions, could have 
 
 1 4 D. & H. 484 ; 3 B. & C. 601 ; 1 C. & P. 550. 
 
214 
 
 THE LAW OP CARRIERS. 
 
 in London in the month of January, and a traveller for the 
 said principals, who proves that he was ignorant of such 
 notice, sends them from Downham a parcel containing 87?., 
 which he has received for them, in the month of February, 
 by a coach belonging to the said proprietors, and it is lost, 
 the coach proprietors will not be responsible. But where 
 an agent of a carrier informed the female servant of the owner 
 of a parcel above the value of 51., that it ought to be ft 
 sured, it was regarded as insufficient notice of the limitation 
 of a carrier's responsibility to protect him from the conse- 
 quences of loss or damage done to the parcel. 1 In one case, 
 where there was an agreement between the plaintiff and one 
 of the defendants, who were proprietors of stage-coaches, to the 
 effect that the plaintiff's parcels of a certain kind should be 
 carried by the defendant's coaches free of expense, and this 
 agreement was in force for two years, but no evidence was 
 offered to prove that the other defendants had any knowledge 
 
 found the messenger and demanded 
 his baggage, the latter might have 
 claimed, upon the theory of this de- 
 fence, that the contract was completed 
 at the delivery of the paper, and that 
 he had a right to perform it and re- 
 ceive the compensation. It is impos- 
 sible to maintain this defence without 
 violating established legal principles 
 in relation to contracts. It was sug- 
 gested on the argument that the stip- 
 ulation to charge according to the 
 value of the property is just and 
 proper. This may be true; but the 
 traveller should have something to say 
 about it. The contract cannot be 
 made by one party. If the traveller 
 is informed of the charges graduated 
 by value, he can have a voice in the 
 bargain ; but in this case he had none. 
 While the carrier should be protected 
 in his legal right to limit his responsi- 
 bility, the public should also be pro- 
 tected against imposition and fraud. 
 The carrier must deal with the public 
 upon terms of equality ; and if he de- 
 
 sires to limit his liability, he must 
 secure the assent of those with whom 
 he transacts business. 
 
 " My conclusion is, that no contract 
 was proved, — 
 
 " 1. Because it was obscurely 
 printed. 
 
 " 2. Because the nature of the 
 transaction was not such as necessarily 
 charged the plaintiff with knowledge 
 that the paper contained the contract. 
 
 " 3. Because the circumstances at- 
 tending the delivery of the card repel 
 the idea that the plaintiff had such 
 knowledge, or assented in fact to the 
 terms of the alleged contract. 
 
 " The order granting a new trial 
 must be affirmed, and judgment abso- 
 lute ordered for the plaintiff, with 
 costs. All the judges concurriug, 
 upon the ground that no contract lim- 
 iting the liability of defendants was 
 proved." 
 
 1 Macklin v. "Waterhouse, 5 Bing. 
 212 ; 2 M. & P. 319. 
 
LIMITED RESPONSIBILITY OF COMMON CARRIERS, ETC. 215 
 
 of this agreement, and it was proved that the defendants had 
 given notice that they would not be accountable for parcels 
 above the value of 51., unless entered and paid for. Here it 
 was held that the defendants were not liable for the loss of a 
 parcel above the value of 51., which was sent by the plaintiff 
 under this agreement, of the value of which no notice had 
 been given to the defendants. 1 In the case of Palmer v. Grand 
 Junction Railway Company, which was an action against com- 
 mon carriers, for the loss of goods intrusted to their care, 
 there was conflicting evidence as to whether a ticket limiting 
 their responsibility had been delivered by them to the plaintiff 
 at the time of taking the goods in charge. The judge left it 
 to the jury to say whether that ticket had been delivered to 
 the plaintiff, and not whether it had been read over to him 
 and explained ; and upon a motion for a new trial, upon the 
 ground of misdirection, he was held to have rightly directed 
 the jury. 
 
 SEC. 132. Means by -which Notice is brought to Owner's 
 Knowledge. — With regard to the means by which the knowl- 
 edge of such a notice is to be brought to the party, we have 
 seen 2 that in one case Lord Ellenborough said it was not 
 enough to prove that it had been advertised, and that it was 
 necessary to prove that it had been advertised in a newspaper 
 which the party whose rights were to be limited by the notice 
 was in the habit of reading. 3 In that case, however, it was 
 held that an advertisement in the Gazette might be read in a 
 trial of such a nature without such a proof as that indicated. 
 In one case, however, in which evidence that the newspaper, 
 in which the proprietor of coaches had frequently inserted a 
 notice of the limitation of his responsibility, had been taken 
 in by the plaintiff for three years, was given, the jury gave a 
 verdict in favor of the plaintiff, and the court refused a new 
 trial. 4 In this country, notice by publication in a newspaper or 
 otherwise is not sufficient, but actual notice must be shown. 5 
 
 1 Bignold v. "Waterhouse, 1 M. & * Rowley v. Home, 3 Bing. 2 ; 10 
 S. 255. Moore, 217. 
 
 2 Ante, p. 208. 6 Southern Express Co. v. Newty, 
 8 Leeson v. Holt, 1 Stark. 186. 36 Ga. 635 ; Prentice v. Decker, 49 
 
 Barb. (N. Y.) 21. 
 
216 THE LAW OP CARRIERS. 
 
 Sec. 133. Notice by Placards. — The most ordinary form, 
 however, in which notice was wont to be given, was by means 
 of placards stuck up in the office at which parcels were booked ; 
 and there were cases which decided under what circumstances 
 these notices should have the effect of limiting the responsi- 
 bility of the carrier, and defeating the objects of the common 
 law. It was decided in one case that a notice stuck up in an 
 office, to be available, must have been in such large characters 
 that a person delivering goods at the office could not fail to 
 read without gross negligence ; 1 and this principle was ex- 
 plained more in detail in another case, in which a bill, speak- 
 ing of the advantages of adopting his mode of conveyance, had 
 been posted on an office door by a carrier, to which advertise- 
 ment a notice was at the bottom added, to the effect that he 
 would not be answerable for goods above the value of 51., unless 
 entered as such, and paid for accordingly. This notice was 
 printed in small letters, and it was held to be an insufficient 
 notice of the limitation of the carrier's responsibility. 2 In this 
 country, such placards, however printed or however conspicu- 
 ously posted, afford no evidence that the shipper knew of the 
 restrictions imposed by the carrier. 3 
 
 SEC. 134. Notice on Board in Office. — In Kerr v. Willan, 4 
 already cited, which was an action of special assumpsit against 
 the defendant, as a carrier, for negligence in losing a truss of 
 goods committed to his care, this matter was under considera- 
 tion. The defendant relied upon a notice put up in his office, 
 intimating that he would not be liable for more than the rate 
 of 20?. per hundred-weight for any goods whose weight cx- 
 
 1 Clayton v. Hunt, 3 Camp. 27. fit of any exception which it contains. 
 
 2 Butler v. Heane, 2 Camp. 415. Burroughs v. Norwich, &c. B. R. Co., 
 It has been correctly held in this coun- 100 Mass. 26 ; Squire v. New York 
 try, that when an owner of goods Central B. B. Co., 98 Mass. 239. 
 seeks to charge a railway company as 8 Hollister i>. Nowlen, 19 Wend, 
 carriers' for the loss of goods intrusted (N. Y.) 234. But in Pennsylvania 
 to them, by proving the terms of one the rule is otherwise. Whitesell v. 
 of their own notices as to the rates Crane, 8 W. & S. (Penn.) 369 
 
 and rules of transportation, he must 4 2 Stark. 53 ; 6 M. & S. 150; s.P. 
 take the notice as a whole, and that Davis v. William, 2 Stark. 279. 
 the defendants are entitled to the bene- 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 217 
 
 ceeded 28 lbs. In order to affect the plaintiff with knowledge 
 of this notice, it was proved that such a notice was painted on 
 a board, and hung up in the defendant's coach-office ; and a 
 witness was called, who stated that he was a porter to the 
 wagon by which the goods had been conveyed to town, and 
 that he had taken them to the defendant's office ; that he had 
 frequently been at the office before, and had seen the board 
 there, but that he did not suppose there was anything upon 
 it, and, although he could read, had never, in fact, read what 
 was upon it until after the loss of the truss. 
 
 Sec. 135. Effectual Notice. — Lord Ellenborough said: 
 " You cannot make this notice to this non-supposing person ; 
 it is difficult to struggle with the common law ; and it is in- 
 cumbent upon a person, who wishes to rid himself of his 
 responsibility at common law, to give effectual notice. The 
 hardship of the case cannot alter the liability of the party. 
 By the common law, the carrier is responsible for the loss of 
 goods, unless he enter into a special contract by which he limits 
 that responsibility. This he may do by giving notice in the 
 public papers, or by any other medium by which the party with 
 whom he deals is effectually apprised of, the terms upon 
 which he proposes to deal. If the person who carried the 
 goods to the office, in this case, had read the notice, the plain- 
 tiff would have been bound by the limitations which it con- 
 tained." 1 And it was decided, in another case, that a notice 
 of certain limitations on a general liability, suspended at the 
 termini of the journey, will not attach upon the delivery of 
 goods- at intermediate places, where no such notice is given. 2 
 
 Sec. 136. Limitation to a certain Value. — Upon grounds 
 which have been alluded to above, it has always been consid- 
 ered fair that a carrier might limit his liability to a certain 
 value. The reasons of this rule were somewhat fully ex- 
 plained. Some of the cases in which these principles have 
 been carried into effect may be mentioned in this place, before 
 we consider the action of the legislature in this matter of 
 
 * J Kllebrown ». Grand Trunk Rail. Co., 55 Me. 462. 
 a Gouger v. Jolly, Holt, 317. 
 
218 THE LAW OP CARRIERS. 
 
 notice. Where the usual notice had been given by carriers, 
 exempting them from liability for the loss of goods above the 
 value of 51., it was not held that they were thereby exempted 
 from responsibility for the loss of the goods, although the 
 value was above the sum named in the notice, if the appear- 
 ance of the goods necessarily indicated their nature and the 
 fact that the value exceeded the sum stated in the notice. 1 
 The object of the law is not to protect men from the effects 
 of their own carelessness. 
 
 Sec. 137. Bulky Goods. — But such a notice would apply to 
 goods which, from their bulk, may be supposed to exceed the 
 specified value. 2 In such a case there is a strife of supposi- 
 tions ; for while the bulk may lead one to suppose that the 
 value exceeds the amount stated in the notice, the sender of 
 the parcel may be supposed to be honest, and the latter sup- 
 position should prevail. Therefore, if goods above the value 
 of 51. had, after the usual notice, been sent, and only from 
 their bulk indicated their excessive value, the carrier would 
 not be liable. The existence of such a notice does not pre- 
 clude a variation in the terms of any special agreement. In a 
 case where a notice that the carriers would not be " account 
 able for any china, glass, or contents, plate, watches, cash, 
 bank-notes, bills, jewels, or writings, however small the value, 
 nor for any other article of more than 51. value, if lost or 
 damaged, unless specified and paid for as such when delivered 
 at their offices in town, or to their agents in the country," was 
 relied upon to protect the carriers from the consequences of a 
 looking-glass having been broken while in their possession, the 
 facts were these : The looking-glass was packed in a case 
 directed to the plaintiff, and marked " glass." It was deliv- 
 ered to the defendants' booker, at the " Saracen's Head," 
 Snow Hill. The book-keeper, being told what it was, said he 
 would charge 4 cwt. for it, although, in point of fact, it only 
 weighed 3 cwt. The person who brought it answered, " Charge 
 what you please ; you shall be paid for it, provided you take 
 care of it. It is worth 801. It is in your care, and I am done 
 
 1 Down v. Eromont, 4 Camp. 40. 2 Thorogood v. Marsh, Gow, 105. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 219 
 
 with it." No money was paid at that time, except 6c?. for 
 booking. The looking-glass, when unpacked, was found to be 
 broken. In this case, notwithstanding the provision in the 
 notice, it was held that, as the book-keeper knew what the 
 article was, and had been told its value, and desired to charge 
 what he pleased, " the payment of the money was dispensed 
 with, and the notice was unavailing." 1 But if no such com- 
 munication had been made by the person bringing the goods 
 to the booking-office, and the plaintiff had relied upon the fact 
 that .the book-keeper who received the goods did happen to 
 know what was in the parcel, or if, he had relied upon a pre- 
 sumption that the book-keeper might, from the size of the 
 case, from its shape or make, or some other circumstance, 
 have inferred the value of the articles contained in it, such a 
 notice as that alluded to above would have protected the 
 defendant carriers. 2 It is, evidently, only just that what is 
 explicit should only be rendered of non-effect by something 
 which is equally explicit. 3 
 
 The cases quoted above are sufficient to show in what con- 
 dition the law was before the passing of the Carriers' Act.* 
 That condition was, as we have seen, eminently unsatisfactory 
 in many respects. At the time the anomalies above alluded 
 to existed, there were many judicial recognitions of their true 
 nature ; but anomalies have deep roots and no judge had the 
 courage to stub them up. Thus, with regard to the question 
 of notice, we find Best, 0. J., making some excellent remarks 
 in the case of Brooke v. Pickwick. 5 
 
 SEC. 138. Proper Way to limit Liability. — " If," he says, 
 " coach proprietors wish honestly to limit their responsibility, 
 they ought to announce their terms to every individual who 
 
 1 Wilson v. Freeman, 3 Camp. 527. tices ought always to be strict as 
 
 2 Levi v. Waterhouse, 1 Price, 280. against the person who seeks to limit 
 See also Harris v. Packwood, 3 Taunt, his liability by such means. See Earle 
 .264 ; Marsh v. Home, 5 B. & C. 322 ; v. Cadmus, 2 Daly (N. Y.), 237; 
 8D. & R. 223; Beck ». Evans, 16 Hopkins v. Westcott, 6 Blatchf. (U.S. 
 ijast, 244; 3 Camp. 276. See also C. C.) 64; Perry v. Thompson, 98 
 Warner v. "Western Transportation Mass. 249. 
 
 Co., 5 Rob. (N. T.) 490. 4 l wm IV c 68< 
 
 8 Yet the construction of such no- 6 4 Bing. 218. 
 
220 THE LAW OP CARRIERS. 
 
 applies at their office, and, at the same time, to place in his 
 hands a printed paper, specifying the precise extent of their 
 engagement. If they omit to do this, they attract customers 
 under the confidence inspired by the extensive liability which 
 the common law imposes upon carriers, and then endeavor to 
 elude that liability by some limitation which they have not 
 been at the pains to make known to the individual who has 
 trusted them." 1 Still, as we have seen, principles other than 
 these were acted upon, and necessarily caused endless litiga- 
 tion. That of itself is sufficient criticism upon the condition 
 of the law. The excellence of a law, or of a rule of law, is 
 in the inverse ratio to the amount of work lawyers get out 
 of it. 
 
 Sec. 139. 11 Geo. IV. and x Will. IV. c. 68. — At last, how- 
 ever, the legislature interfered, and passed the Carriers' Act. 2 
 It is entitled " An Act for the more effectual protection of mail 
 contractors, stage-coach proprietors, and other common carri- 
 ers for hire, against the loss of or injury to parcels or pack- 
 ages delivered to them for conveyance or custody, the value of 
 which shall not be declared to them by the owners thereof." 
 It recites that, " by reason of the frequent practice of bankers 
 and others, of sending by the public mails, stage-coaches^ 
 wagons, vans, and other public conveyances by land, for hire, 
 parcels and packages containing money, bills, notes, jewelry, 
 and other articles of great value in small compass, much val- 
 uable property is rendered liable to depredation, and the 
 responsibility of mail contractors, stage-coach proprietors, and 
 common carriers for hire is greatly increased; and that, 
 through the frequent omission, by persons sending such par- 
 cels and packages, to notify the value and nature of the con- 
 tents thereof, so as to enable such mail contractors, stage-coach 
 proprietors, and other common carriers, by due diligence, to 
 protect themselves against losses arising from their legal 
 responsibility, and the difficulty of fixing parties with knowl- 
 edge of notices by such mail contractors, stage-coach propri- 
 
 r- 1 The judgment of Beonson, J., in a n Q e0 _ JV. and 1 Will. IV. 
 > Hollister t>. Nowlen, 19 Wend. (N. Y.) e. 68. 
 V 236, is worth reading in this connection. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 221 
 
 etors, and other common carriers, with the intent to limit 
 their responsibility, they have become exposed to great and 
 unavoidable risks, and have thereby sustained heavy losses." 
 
 Sec. 140. Declaration of Value. — This act, in its 1st sec- 
 tion, enacts that no mail contractor, stage-coach proprietor, or 
 other common carrier by land, for hire, shall be liable for the 
 loss of, or injury done to, any of the articles therein mentioned, 1 
 if the value of such property exceed 101., " unless at the time 
 of the delivery the value and nature be declared, and an 
 increased charge, or an engagement to pay the same, be 
 accepted." 
 
 Sec. 141. Public Notice. — The 2d section enacts that, 
 with a view to the carriers' trade in the conveyance of parcels 
 containing some of the articles specified in the 1st section, the 
 value of which shall exceed lOZ.j the rate of the increased 
 charge is to be notified by a public notice affixed to a conspic- 
 uous part of the office, warehouse, or receiving-house, that 
 such notice is to be in legible characters, and that this notice 
 shall bind the senders of such parcels, without further proof 
 of its having come to their knowledge. 
 
 Sec. 142. Carrier's Receipt. — By the 3d section, carriers 
 are required to give receipts for packages, after the require- 
 ments of the foregoing sections have been complied with, if 
 they are asked to do so, and such receipt is to be an acknowl- 
 edgment of the insurance of the goods which have been in- 
 trusted to them. And by the same section they are deprived 
 of the benefit of the act if they do not give such a receipt 
 when required to do so, or if the notice is not affixed to a con- 
 
 1 These are bank-notes of any bank payment of money, orders for payment 
 
 in England, Scotland, or Ireland, bills of money, paintings, pictures, plate or 
 
 of exchange, checks on bankers, china, plated articles, gold or silver, precious 
 
 clocks, coins (gold or silver) of any stones, promissory notes, securities 
 
 country, deeds, engravings, foreign for payment of money, silks in a manu- 
 
 coins (gold or silver), furs, glass, gold factured or unmanufactured state, and 
 
 coin, or other gold, manufactured or whether wrought up or not wrought 
 
 not, plate or plated articles, jewelry, up with other articles, silver, coin, or 
 
 lace, maps, money (gold or silver), plate or plated articles, stamps, stones 
 
 notes, bills, orders or securities for (precious), timepieces of any descrip- 
 
 payment of money, notes of any bank tion, title-deeds, trinkets, watches, 
 
 of the United Kingdom, or for the writings. 
 
222 THE LAW OF CARRIERS. 
 
 spicuous place, and does not fulfil the requirements of section 
 2, under which circumstances the liability of the carrier, in 
 case of injury or damage, will be determined by the common- 
 law rule. 
 
 Sec. 143. As to Limitation of Liability by Notice. — The 4th 
 section provides that no public notice or declaration shall limit 
 or in any wise affect the common-law liability of any such car- 
 riers for or in respect of any goods to be carried or conveyed 
 by them, but that they shall be liable, as at common law, to 
 answer for the loss of or damage done to any articles or goods, 
 unless they are mentioned in or covered by the act, and that 
 in spite of any public notice or declaration made by them 
 contrary thereto. 
 
 Sec. 144. Office. — The 5th section provides that every 
 office used by the carrier as a receiving-house shall be deemed 
 to be such, and that any one of several carriers, who are part- 
 ners or joint proprietors, may be sued separately. 
 
 Sec. 145. Special Contracts. — By section 6 it is expressly 
 provided that nothing in the act is to extend, or be construed, 
 to annul or in any wise affect any special contract between 
 parties for the conveyance of goods. 
 
 Sec. 146. Recovery of Loss. — By the 7th section, a party 
 who has delivered a parcel and paid for it as a valuable par- 
 cel under the act, is entitled to recover the amount of a loss 
 or damage, including the increased charges for value and 
 insurance. 
 
 Sec. 147. Felonious Acts of Servants. — The 8th section 
 provides that nothing in the act shall protect any mail con- 
 tractor, stage-coach proprietor, or other common carrier for 
 hire from liability to answer for loss or injury to any goods 
 or articles whatsoever, arising from the felonious acts of any 
 coachman, guard, book-keeper, porter, or other servant in his 
 employ, nor protect any such coachman, guard, book-keeper, 
 or other servant from liability for any loss or injury occa- 
 sioned by his own personal neglect or misconduct. 
 
 Sec. 148. Proof of Value. — By the 9th section it is pro- 
 vided that carriers shall be entitled to require from the plain- 
 tiff proof of the actual value of the contents by the ordinary 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 223 
 
 legal evidence, and that they shall be liable only to such dam- 
 ages as are thus proved, not exceeding the declared value, 
 together with the increased charges. The 10th section enables 
 carriers, in actions brought against them, to pay money into 
 court, as in ordinary actions. 
 
 SEC. 149. Modification of these Provisions. — These are 
 the principal provisions of this act, but in some respects the 
 generality of these provisions has been removed by the decisions 
 which have from time to time been made in our courts of law. 
 Thus it was held, in the case of the Peninsular and Oriental 
 Steam Navigation Company v. Shand, 1 that neither the Car- 
 riers' Act 2 nor the Railway and Canal Act 3 applied to carriers 
 by sea. 4 
 
 Sec 150. Divisibility of Contract. — It is important, how- 
 ever, to notice that where a carrier has entered into a contract 
 for the carriage of goods from a foreign port to a port in Eng- 
 land, and thence by land in England, the contract is divisible, 
 and he is entitled to the protection of the 1st section of the 
 Carriers' Act, in so far as the carriage by land is concerned. 5 
 It has further been decided that where, in an action against a 
 common carrier for the loss of a parcel, it was pleaded, under 
 this act, that the value exceeded 10Z., and was not declared at 
 the time of delivery to the carrier, a replication that the loss 
 arose from the felonious acts of the defendant's servants was 
 good. 6 It also appears that to all goods other than those 
 mentioned in the act, the common-law liability remains, in 
 spite of any public notice or declaration made by the carrier 
 with a view to limit such liability ; and that his responsibility 
 for goods which are specifically mentioned in the act, but 
 whose value is under 10Z., remains as at common law. 
 
 SEC. 151. Decisions on the First Section. — Some decis- 
 ions have been arrived at as to what is included under the 
 descriptions of goods contained in the 1st section of the act. 
 
 1 3 Mbore, P. C. s. s. 272. 6 Baxendale v. Great Eastern Rail. 
 
 2 11 Geo. IV. and 1 "Will. IV. o. 68. Co., 10 B. & S. 212, Exch. Ch. 
 
 8 17 & 18 Vict. c. 81. 6 Metcalfe v. London, Brighton, & 
 
 4 See also Pianciani v. London & South Coast Rail. Co., 4 C. B. n. s. 
 South- Western Rail. Co., 18 C. B. 226. 307. 
 
224 THE LAW OP CARRIERS. 
 
 Thus the words " timepieces of any description " have been 
 held to include a chronometer for use on ship-board. 1 
 
 Sec. 152. Trinkets. — In another case, while it was ad- 
 mitted to be impossible to define with precise accuracy the 
 word " trinkets," within the meaning of the 1st section of 
 this act, it was asserted that the closest approximation to a 
 definition is this, that they must be articles of mere ornament 
 or, if ornament and utility be combined, the former must be 
 the predominating quality. And Cockburn, C. J., in giv- 
 ing judgment, instanced "bracelets, shirt-pins, rings, and 
 brooches," and held that ornamental portemonnaies and smell- 
 ing-bottles " may fairly and properly fall within the descrip- 
 tion of trinkets." 2 
 
 SEC 153. Manufactured Silks, Glass, Furs, Securities, Lace, 
 &c. — So silk watch-guards are "silks in a manufactured 
 state," within the meaning of the act. 3 And smelling- 
 bottles will fall under the description " glass ; " so a look- 
 ing-glass will be held to be "glass." 4 "Furs," according 
 to Tindal, C. J., in Mayhew v. Nelson, 6 within the mean- 
 ing of the statute, are " articles made entirely of fur, and not 
 articles in which there is only a portion fur." A security for 
 money, to be within the act, must be of the intrinsic value of 
 10?. when it is delivered to the carrier. Therefore an imper- 
 fect bill of exchange for 11?. 10s., which was lost before the 
 name of the drawer was inserted, was held, in an action 
 against a carrier-company for the loss, to be a " writing," but 
 not a bill, note, or security for money within the meaning of 
 the 1st section of the Carriers' Act. 6 In a more recent case 
 
 1 Le Conteur v. London & South- Act. Brunt v. Midland Rail. Co., 2 
 Western Kail. Co., 1 Law Rep. Q. H. & C. 889 ; 33 L. J. Exch. 187. 
 B. 54. See also Butt v. Great Western Rail. 
 
 2 Bernstein v. Baxendale, 6 C. B. Co., 11 C B. 140 ; 20 L. J. 241 C. P. 
 N. s. 251. See also Dave? v. Mason, C. & M. 50. 
 
 8 Bernstein ». Baxendale, 6 C. B. 4 Owen v. Burnet, 4 Tyr. 133. 
 n. s. 251 : Hart v. Baxendale, 6 Exch. 6 6 C. & P. 58. 
 769. " Elastic silk webbing " is com- e Stoessiger v. South-Eastern Bail, 
 
 posed of silk and India-rubber. It Co., 23 L. J. Q. B. 293 ; 3 El. & Bl. 
 
 was held that this webbing was "silks 549 ; 2 C. L. R. 1595 ; 18 Jur. 605. 
 
 wrought up with other materials " See as to jewelry, Smith v. London & 
 
 within the meaning of the Carriers' Brighton Rail. Co., 7 C. B. 782. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 225 
 
 the plaintiff was the owner of a valuable piece of lace (in- 
 tended for use in celebrating the Holy Communion), which, 
 together with a certificate of the novelty of the pattern, was 
 put in a gilt frame and covered with glass, for the purpose of 
 being shown at an exhibition of ecclesiastical articles. The 
 whole was put in a packing-case, and sent — without any dec- 
 laration within the Carriers' Act — by the defendants' railway, 
 and lost. In this case it was held that, though the plaintiff 
 was not entitled to recover the values of the lace, certificate, 
 and glass, he was entitled to recover the values of the gilt 
 frame and packing-case. 1 
 
 Sec. 154. Special Contracts still Admissible. — It is also 
 to be understood that this act does not in any way preclude 
 the parties from entering into any special contract as to the 
 conveyance of goods of any description or value ; but the 
 notice given under the act, although known to the consignor, 
 does not of itself constitute a special contract for this pur- 
 pose. Where, however, a notice was served by a railway 
 company on a fishmonger that fish would not be taken for 
 conveyance except on certain terms, and that no one had 
 power to vary those terms, it was held that the fact of his 
 sending his fish showed that he assented to a special contract 
 to carry on those terms, and that the company were in that 
 case protected under the Carriers' Act. 2 
 
 Sec. 155. Payment of Carriage. — Of course, a carrier is 
 not bound to convey goods except on payment of the full price 
 for the carriage, according to their value. The common-law 
 duty to carry is to be regarded as dependent upon the willing- 
 ness of the owner of the goods to pay for their conveyance, 
 
 1 Treadwin v. Great Eastern Rail, son, v. London & North-Western Rail 
 Co:, 3 L. R. C. P. 308 ; 37 L. J. C. P. Co., 5 L. R. Ex. 90 ; 18 W. R. 352 ; 
 83; 17 L. J. n. s. 601 ; 16 W. R. 21 L. T. h. s. 756 ; 39 L. J. Exch. 55. 
 365. See also Flowers v. South-East- A silk dress, forming part of the wear- 
 em Rail. Co., W. N. 1867, p. 155. iug apparel of a railway passenger, is 
 See also Wyld v. Pickford, 8 M. & W. within the act. Flowers v. South- 
 443. As to pictures, see Boys v. Pink, Eastern Rail. Co., 16 L. T. n. s. 
 8 C. & P. 361. When framed pie- 321. 
 
 tures are sent by a carrier, the frames 2 Walker v. York & North Midland 
 
 as well as the pictures are within the Rail. Co., 2 El. & Bl. 750 ; 18 Jur. 
 
 Carriers' Act. Henderson, or Ander- 143 ; 23 L. J. Q. B. 73. 
 
 15 
 
226 THE LAW OP CAERIEES. 
 
 and if in any case the amount chargeable according to the 
 value of the goods is not paid, it is competent for the carrier 
 to limit his liability by special contract. And, therefore, 
 where a carrier receives valuable goods to carry, after a notice 
 to the bailor that he will not be responsible for loss or dam- 
 age done to them unless a higher than the ordinary rate of 
 insurance be paid for the carriage, he receives them on the 
 terms of such notice, which amounts to a special contract. 1 
 In the case in which that was decided, it was, however, at the 
 same time, laid down that he is not exempted thereby from 
 all responsibility, but is, notwithstanding the notice, bound to 
 take ordinary care in the carriage of goods, and is liable not 
 only for any act which amounts to a total abandonment of his 
 character of carrier, or for wilful negligence, but also for a 
 conversion by mis-delivery arising from inadvertence or mis- 
 take, if such inadvertence or mistake might have been avoided 
 by the exercise of ordinary care. 1 
 
 Sec. 156. Effect of Statute. — The effect, then, of the stat- 
 ute, in so far as it relieved land-carriers from liability for the 
 loss of or damage to valuable articles mentioned therein, un- 
 less the nature of the articles was declared, and a higher rate 
 of insurance paid, must now be perfectly clear. The duties 
 of the consignor and of the consignee must be ascertainable 
 from what has been said by a very ordinary effort of thought. 
 And the liabilities of each, when the duties thus imposed upon 
 them by statute and by the common law have not been per- 
 formed on the one side or the other, where these have not 
 been enumerated, are of easy inference. It need scarcely be 
 stated in this place that where both the owner of the goods 
 
 1 Wyld v. Pickford, 8 M. & W. Orleans, &o. R. R. Co., 20 La. Ann. 
 
 443 ; Southern Express Co. v. Moon, 302 ; Omdorff v. Adams Express Go., 
 
 39 Miss. 822 ; Earnham v. Camden, 3 Bush (Ky.), 194 ; Express Co. v. 
 
 &c. R. R. Co., 55 Penn. St. 53 ; Kountze, 8 Wall. (U. S.) 342 ; Simon 
 
 American Express Co. v. Sands, 55 e. The Fung Shuey, 21 La. Ann. 363 ; 
 
 Penn. St. 140; Stedman v. Western Lamb v. Camden, &e. R. R. Co., 2 
 
 Transportation Co., 48 Barb. (N. Y.) Daly (N. Y.), 454 ; Indianapolis, &e. 
 
 97; Evansville, &e. R. R. Co. v. R. R. Co. v. Allen, 31 Ind. 394 j 
 
 Young, 28 Ind. 516 ; Baltimore, &c. Michigan, &c. R. R. Co. v. Heaton, 
 
 B. R. Co. v. Skeels, 3 W. Va. 556 ; 31 Ind. 397, n. 
 New Orleans, &c. Ins. Co. v. New 
 
LIMITED EESPONSIBILITY OP COMMON CAEEIERS, ETC. 227 
 
 and the carrier to whom they are intrusted have complied 
 with the statutory requirements with regard to articles above 
 the value of 101., that compliance has replaced the carrier in 
 the position that was imposed upon him by the common law, 
 viz., the position of an insurer. And in case of the loss of or 
 damage to such goods the owner will recover from the carrier 
 the value of the property lost, or the difference between its 
 value before and after the accident, in case of injury, from the 
 carrier. 1 
 
 SeC. 157. Receiving-house. — With regard to two sections 
 of the act, however, something more may be said with advan- 
 tage. Section 5, as we have already seen, 2 enacts that every 
 office, warehouse, or receiving-house, which shall be used or 
 appointed by a mail contractor or stage-coach proprietor, or 
 other such common carriers, for the receiving of parcels to be 
 conveyed, shall be deemed and taken to be the receiving-house, 
 warehouse, or office of such mail contractor, stage-coach pro- 
 prietor, or other common carrier. Under this section an inn 
 where a book was kept for booking parcels by a particular 
 coach which was in the habit of stopping there regularly to 
 take up and deliver parcels, was held to be a receiving-house, 
 and that, although it was proved that other coaches stopped 
 at the same inn for the same purpose, and that the innkeeper 
 sent the parcel by which coach he pleased. 3 
 
 SEC. 158. Rule in Gilbert v. Dale. — In Gilbert v. Dale, 4 it 
 was held that the contract entered into by a booking-office 
 keeper, who takes in parcels to be forwarded by carriers, is 
 only to deliver them safely to a carrier. If a common carrier, 
 to whom goods are brought for conveyance, demands a certain 
 sum for booking, and refuses to take charge of the goods un- 
 less such sum is paid, he is not liable to an action if they are 
 left without being paid for and are lost. 5 So, as to this point, 
 it has been decided that if a carrier directs goods to be sent to 
 
 1 M'Manns v. Lancashire & York- 8 Syms v. Chaplin, 1 N. & P 129 • 
 shire Bail. Co., 4 H. & N. 327; 28 5 Ad. & El. 634 ; 2 H. & W. 411. 
 
 L. J. 354 Exch. 4 1 N. & P. 22 ; 5 A. & E. 543 • 2 
 
 2 Ante, p. 222. H. & W. 383. 
 
 6. 
 
 • v. Jackson, Peake, 185. 
 
228 THE LAW OP CARRIERS. 
 
 a particular booking-office, he is to be held liable for the neg- 
 ligence of the booking-office keeper. 1 The case of Davey v. 
 Mason 2 also has a direct bearing upon this section of the act. 
 In this case it appeared that the plaintiff, Miss Davey, had 
 been staying at the " Horse Shoe Inn," at the Stone's End in 
 the borough of Southwark, and, wishing to forward her lug- 
 gage to Lindfield, she had sent to the "Talbot Inn," in the 
 borough from which the van of the defendant, who was the 
 Lindfield carrier, started, to desire that the van might be 
 brought to call for her luggage at the " Horse Shoe Inn." It 
 appeared that upon a certain day the defendant's van, driven 
 by a servant of the defendant named Allen, was brought to 
 the door of the " Horse Shoe Inn," when the luggage of the 
 plaintiff was put into the van, from which it was afterwards 
 lost while the van was on the way to Lindfield, and while the 
 driver of the van was asleep. It was held that the defendant 
 carrier was liable for the loss. Lord Abinger, C. B., in sum- 
 ming up, said : " The defendant's servant and van called for 
 these things at the ' Horse Shoe,' just as it is the custom of 
 carriers to do. If you are satisfied that this luggage was de- 
 livered to the defendant's servant, as has been proved, I am 
 of opinion that the defendant is just as liable in this action as 
 if he had taken up these goods at the ' Talbot' instead of hav- 
 ing taken them up at the ' Horse Shoe.' " In another case in 
 which an action was brought against a carrier for the loss of 
 a parcel, he pleaded that it had not been delivered to him to 
 be carried, and it was held sufficient for the plaintiff to show 
 that it was delivered to a person and at a house where parcels 
 were in the habit of being left for the carrier. It was decided 
 that it was immaterial whether this person was paid any 
 money or not, and that in such an action the person who 
 so left the parcel may be asked on cross-examination what 
 direction was on the parcel. 3 
 
 SEC. 159. Rule in Baxendale v. Hart. — The case of Bax- 
 endale v. Hart, 4 where the plaintiff sent to the defendant's 
 
 1 Colepepper v. Good, 5 C. & P. 8 Burrell v. North, 2 C. &. K. 680. 
 380. * 21 L. J. 123 Exch. ; 6 Exch. 
 
 2 1 Car. & M. 45. 769 ; 16 Jur. 126. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 229 
 
 office, to request him to call for goods, and the defendant ac- 
 cordingly sent and received them at the plaintiff's residence, 
 is, in many respects, similar to that of Davey v. Mason. 1 In 
 this case no communication was made as to the nature or 
 value of the goods to be conveyed ; and no increased charge, 
 according to the value, was paid or tendered by the plaintiff. 
 Some of the goods were lost during the transit, and Pollock, 
 C. B., after taking the opinion of the Court of Exchequer, 
 ruled that, as the package was not delivered at the defendant's 
 office, the defendant could not claim the benefit of the statute. 
 Upon error, however, this ruling was held to be incorrect. 
 Patteson, J., in delivering the judgment of the court, said : 
 " We think the fair meaning of the statute, and in accordance 
 with the first object of the legislature, is, that all persons who 
 send goods of the particular description exceeding 101. in 
 value (they being the persons who know whether they are 
 such goods or not, and the package not being open, and its 
 contents unknown to the carrier), whenever they deliver them 
 to the carrier, are bound to give information of the nature 
 and value of the articles, whether they are delivered at the 
 office of the carrier, at the sender's home, on the road, or any- 
 where else ; and the rest of the clauses of the act follow after 
 with certain provisions as to what is then to be done." And 
 this case naturally leads us to the other section of the 11 
 Geo. IV. and 1 Will. IV. c. 68, about which something must 
 be said. And that is the clause which makes a declaration of 
 the nature and value of the goods, and an increased charge 
 paid thereon, conditions precedent to the imposition of the 
 character of an insurer upon a common carrier, when the 
 value of the goods is over 101? 
 
 Sec. 160. Necessity of Notice. — The judgment of Patte- 
 son, J., in the case of Baxendale v. Hart, which has been 
 referred to above, continues to bear upon this question, and is 
 worthy of quotation. " Then it is," he goes on to say, " that 
 the carrier is entitled to have and to demand a larger charge, 
 which is in the nature of a premium for insurance ; he cannot, 
 
 1 Ante, p. 228. 
 
 3 See Hinton v. Dibbin, 2 G. & D. 36 ; 2 Q. B. 646 ; 6 Jur. 6Q1. 
 
230 THE LAW OP CARRIERS. 
 
 indeed, have a larger charge (or, if it be not paid, save him- 
 self from responsibility) merely by saying that he must have 
 such and such a sum of money, varying in cases of different 
 persons ; but he must have a tariff, or notice, stuck up in his 
 office of the sums which he means to charge above the usual 
 charge for carriage for the different articles, to all the world 
 who send articles of that kind. No doubt, therefore, it is 
 made necessary by the section that he should put a notice or 
 tariff in his office ; but then it must be observed that that 
 notice is not a notice. ' I mean to take the benefit of this act, 
 and I mean to require that every person who gives me articles 
 of a particular description and of a particular value shall tell 
 me that they are of that description and value ; ' it assumes 
 that the Act of Parliament has made it necessary for the 
 sender to state the contents and the nature and value of the 
 articles in the first instance ; and the tariff is only to notify 
 to persons what is the extra charge the carrier intends to 
 make in such case." 
 
 SEC. 161. Information to be given by Owner. — In a 
 subsequent part of his judgment he says : " We think that 
 the Act of Parliament requires the person who sends the goods 
 to take the first step, by giving the 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 of the Act of Parliament, which expressly 
 says that the carrier shall not be liable unless the declaration is 
 made. Such declaration, when made, will lead to other con- 
 sequences. The carrier will know what he is to have more 
 according to the tariff which he has stuck up in his office : if 
 that sum is paid, and the goods are lost, then, of course, he 
 would be liable ; on the other hand, if he refuses to give a re- 
 ceipt, as provided by the statute, or has omitted to comply 
 with any provision of that kind on his part to be performed, 
 he would lose the protection given by the act ; but in no case 
 can the sender recover, unless he has taken the first step, 
 by giving the information which the legislature intended he 
 should give, as we think, in the very first instance." 
 
 SEC. 162. How Owner's Duty to be performed. — It was 
 
LIMITED RESPONSIBILITY OF COMMON CARRIERS, ETC. 231 
 
 upon these grounds they thought the ruling of the Chief Baron 
 wrong. But it is to be clearly understood that the duty which, 
 under this act, devolves upon the owner of goods above the 
 value of 101. to declare the nature and value of the articles 
 which he delivers to a carrier to be conveyed, is not to be 
 performed in a slovenly and informal manner. And it is not 
 enough to prove that the carriers had a conviction as to the 
 contents of a package, or as. to the real nature and value of the 
 goods conveyed, to show that a formal declaration was un- 
 necessary, under the 1st section of this act. 1 With regard to 
 this question of the declaration of the nature and value of the 
 goods delivered, and. the payment of the extra charge, the case 
 of Behrens v. The Great Northern Railway Company 2 may be 
 noticed. 
 
 Sec. 163. Demand of Payment of Increased Charge. — 
 Every duty gives rise to a number of subsidiary duties. The 
 performance of a duty is one thing ; the manner of its per- 
 formance is another. With regard to this matter, the question 
 naturally arose, as to whether, when the declaration as to the 
 nature and value of goods had been made by their owner, in a 
 case where the value exceeded 101., he was bound to tender 
 the increased charge mentioned in the notice affixed to the 
 office of the carrier, or whether it is the duty of the carrier to 
 demand the payment of the increased charge. A further ques- 
 tion, of course, was dependent upon the decision of the last 
 question, namely, the effect of a breach of the duty of either 
 party upon whom the duty was cast, in case of the loss or 
 damage of the articles. These questions were decided in the 
 case above alluded to, which was heard in the Court of Ex- 
 chequer, on the 30th of January, 1861, and the decision there 
 given was affirmed, on appeal to the Exchequer Chamber, on 
 the 5th of February, 1862. 
 
 Sec. 164. Behrens v. The Great Northern Rail. Co. — In 
 that case the defendant company were common carriers of 
 
 1 Boys v. Pink, 8 Car. & P. 361. firming the decision in the Bxch. 6 H. 
 
 2 7 H. & N. 950 ; 8 Jur. n, s. 567 ; & N. 366 ; 30 L. J. Exch. 153 ; 9 W. 
 31 L. J. Exch. 299 ; 10 W. R. 389 ; R. 338 ; 3 L. T. n. s. 863. 
 
 8 L. T. n. s. 328, Exch. Cham., af- 
 
232 THE LAW OP CAEEIEES. 
 
 goods for hire, from London to Newcastle-on-Tyne, and the 
 plaintiff, who was a picture-dealer in Coventry Street, London, 
 delivered to the defendants, as such carriers, certain pictures 
 to be carried from the former to the latter place. The place 
 of delivery was the house of the plaintiff, at which the defend- 
 ants' van called for the purpose of receiving the pictures, at 
 the request of the defendants. At the' time that the goods 
 were delivered to the carman, he read, signed, and returned to 
 the plaintiff, a book containing the following receipt : — 
 
 "May 29, 1860. 
 " Eeceived of Mr. J. B. Behrens one case, containing a large 
 valuable oil-painting, directed, with great care, to Mr. S. Sesser, 
 ' Turk's Head Hotel,' Gery Street, Newcastle-upon-Tyne. De- 
 clared over the value of one hundred and ten pounds. 
 
 " (Signed) Harding." 
 
 It appeared that the carman did not demand any increased 
 charge or premium, that nothing was said upon the subject, 
 and that no carriage at all was paid by the plaintiff. The case 
 was conveyed by the defendants' railway from London to New- 
 castle, and after delivery at its destination, and the ordinary 
 carriage paid, it was discovered to have been seriously injured. 
 Upon application the defendants refused to compensate the 
 plaintiff for the injury, on the ground that the additional rate 
 of 151. per cwt. had not been paid. When the case was before 
 the Court of Exchequer, Bramwell, B., said : " To my mind 
 the object of the 2d section was this : Having prescribed by the 
 1st section a declaration of value, and of the non-liability 
 of the carrier, the 2d section enables the carrier, if he thinks 
 fit, to notify that he will take an increased rate of charge, and 
 thereupon to demand it from the person sending the articles ; 
 but if he does not think fit to notify the increased rate of 
 charge, he cannot demand it, and although he does notify it, 
 if he does not think fit to demand it, he is not entitled to de- 
 mand it ; " and Channell and Wilde, BB., were also of opinion 
 that the demand of the carrier is a condition precedent to the 
 payment. In the Court of Exchequer Chamber, Wightman, 
 J., delivered the judgment. In doing so, he said : " We think 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 233 
 
 that the respondent, having declared the value of the picture 
 to the carman, who was the agent of the appellants, and who 
 received the same to be carried by them, was entitled, upon 
 the loss of it by the appellants, to recover its value, though 'he 
 did not pay, or offer to pay, any increased rate in proportion 
 to the value, no such payment having been required either at 
 the time of delivery to the carman, or at any other time before 
 the loss. The case of Hart v. Baxendale 1 decides that in such 
 a case as the present, the person delivering the goods to the 
 carrier must, in the first instance, declare .their value, in order 
 to fix the carrier with responsibility, and the carrier may then 
 require him to pay an increased rate of charge, according to a 
 tariff put up in the office ; but there is nothing in the statute 
 which protects him from liability, if, after the value is declared 
 to be such as would entitle him to demand an increased rate 
 of charge, he chooses to accept the goods to be carried without 
 making any demand of such increased rate, or requiring it to 
 be either paid or promised. The carrier is not bound to re- 
 ceive such goods for carriage without payment of such in- 
 creased rate, if required ; but if he choose to do so, and the 
 value is declared, he will not be protected by the act." 
 
 Sec. 165. Declaration, Effect of. — The declaration which is 
 necessitated by this act being a formal declaration, the person 
 making it is to be held bound by it even when it will prejudice 
 his interests. He had the opportunity of representing the facts 
 accurately or inaccurately as he pleased, and it would be in- 
 justice to allow him to be advantaged by repudiating his mis- 
 representation. Thus, where horses, each of which was above 
 the value of 101., were delivered to a railway company to be 
 conveyed by them for hire, the owner previously to such de- 
 livery having signed a declaration that each of the horses was 
 under the value of 10Z., and where, through the negligence of 
 the company, the horses were injured, it was held, in an 
 action against the company for the damage actually sustained, 
 that the parties having agreed to act upon an assumed state of 
 facts, both parties were bound by it, and the owner of the 
 
 1 6Exch. 769; 16 Jur. 126. 
 
234 THE LAW OF CARRIERS. 
 
 horses was therefore concluded by his statement of their 
 value. 1 
 
 SEC. 166. Meaning of the Word " Loss." — Only one other 
 point will require mention in connection with this act, and 
 that refers to the conditions under which, in connection with 
 the articles mentioned in the 1st section of the act, above the 
 value of 101. the carrier becomes an insurer, and is liable or 
 not liable, for their ldss or injury. This is only the case when 
 the loss or injury can be referred to the article as occasioned 
 by the carrier or by.his servants, when the act does not amount 
 to a felony, 2 not when it can be referred to the owner. Thus, 
 Parke, B., in the case of Hearn v. The London and South- 
 western Railway Company, 3 denned the term " loss," such as 
 would give the owner of the goods a right to recover, " as 'loss' 
 of a parcel by the carrier, such as the abstraction of it by a 
 stranger, or by his own servant, not amounting to a felonious 
 act, or by the carrier or his servants losing them from the 
 vehicle when in the course of carriage, or by mislaying them, 
 so that it was not known where to find them when they ought 
 to be delivered." The word " loss," then, as used in the 
 statute, is not held to include " loss " which is occasioned by 
 the non-delivery or delay of the delivery by the carrier or his 
 servant, not pecuniary loss to the owner, but to some loss inci- 
 dental to the ordinary business of a common carrier for hire, 
 by which the article has gone astray or is missing. 
 
 SEC. 167. Effect of Statute. — Private Notices. — All that 
 the Carriers' Act (11 Geo. IV. and 1 Will. IV. c. 68) did was to 
 
 1 M'Canoe v. London & North- the silence of the person sending the 
 
 Western Rail. Co., 3 H. & C. 343 ; goods. He is not bound to disclose 
 
 10 Jur. n. s. 1058 ; 12 W. R. the contents of any parcel or box sent 
 
 1086. With regard to the effect of by him. See judgment of Parke, B., 
 
 fraud, concealment, or misrepresenta- in Walker v. Jackson, 10 M. & W. 
 
 tion, see Riley v. Home, 5 Bing. 217; 168 ; Brooke v. Pickwick, 4 Bing. 
 
 Harris v. Pa'ckwood, 3 Taunt. 264 ; 218 ; Sleat v. Fagg, 5 B. & Aid. 342; 
 
 Bull. N. P. 71; Miles v. Cattle, 6 Batson v. Donovan, 4 B. & Aid. 21; 
 
 Bing. 743, ut suprti. See also Story Webb v. Page, 6 Man. & G. 196. 
 on Bailm. §§ 565, 565a; and see a Hinton v. Dibbin, 2 Q. B. 646. 
 American Express Co. v. Perkins, 42 8 24 L. J. Exch. 180 ; 3 CI. R- 
 
 111. 458. There is, however, no pre- 597; 10 Exch. 793; 1 Jur. s. s. 
 
 sumption of fraud to be founded on 236. 
 
LIMITED RESPONSIBILITY OF COMMON CARRIERS, ETC. 235 
 
 take away from the validity of public notices. It did not in 
 any way affect the right that parties had to enter into special 
 contracts, nor did it affect the validity of those contracts when 
 they were entered into. The fact that a system of private no- 
 tices had come into use, necessarily led to litigation on the 
 question as to whether an owner of goods is bound by a private 
 notice ; whether it becomes the terms of a special contract 
 when such notice has been delivered to him, or to his agent 
 personally, before the acceptance of the goods by the carrier. 
 The result of the decisions, to some of which we shall have 
 immediate occasion to call the reader's attention, seems to be 
 that the delivery of such a notice under such circumstances 
 does not create a contract 1 between the parties, but that it is 
 evidence from which a jury will be bound to infer the existence 
 of a contract of a nature parallel to that of the notice. 2 
 
 We have already had occasion to allude to the case of Walker 
 v. York and North-Midland Railway Company, 3 which was an 
 action against the said railway company for not duly carrying 
 fish from Scarborough to Manchester. It was averred that the 
 fish had been received at the former place, to be carried as 
 common carriers by the defendant company to Manchester. 
 The pleas were, that the company did not receive the fish as 
 common carriers, and that they received them on certain terms 
 set out in the plea. It appeared, on the trial, that the company 
 printed many notices, declaring that they would not carry fish, 
 except on terms relieving them of all liability, and declaring 
 also that none of their servants had power to vary those terms. 
 It was further proved that a parcel of those notices had been 
 sent to Scarborough, and served on the fish-merchants there, 
 and also that the plaintiff had told the company's station- 
 master at Scarborough that they (meaning t the notices) were 
 not of any use. Subsequently, it appeared that fish had been 
 sent by railway, and were not duly carried. Upon these facts, 
 the judge left it to the jury to say, first, whether the notice 
 
 1 Crouch v. London & North-West- 49 Barb. (N. Y.) 283 ; Belger v. Dins- 
 em Rail. Co., 2 Car. & Kir. 789. more, 51 Barb. (N. Y.) 69. 
 
 2 See Prentice v. Decker, 49 Barb. 8 Ante, p. 225 ; 2 El. & Bl. 750; 
 (N. Y.) 21; Limburger p. Westcott, 23 L. J. Q. B. 73. 
 
236 THE LAW OP CARRIERS. 
 
 had been served upon the plaintiff ; secondly, whether a special 
 contract existed between the plaintiff and the company, that 
 the fish should be carried on the terms stated in the notice ; 
 and he directed them that if the plaintiff had been served with 
 the notice, and afterwards sent the fish by the company's rail- 
 way, they ought to infer an agreement, on the plaintiff's part, 
 to such terms, unless there was shown an unambiguous refusal 
 by the plaintiff to be bound, and an acquiescence in that re- 
 fusal on the part of the company. It was held that this direc- 
 tion was right, under the circumstances, that 11 Geo. IV. and 
 1 Will. IV. c. 68, § 4, is confined to public notices, and that the 
 jury might rightly infer, from the plaintiff having special 
 notice, that the fish would not be taken, except on certain 
 terms, and that no one had power to vary the terms, and from 
 his afterwards persisting in sending his fish, that he assented 
 to a special contract to carry on these terms, and the company 
 was in that case protected by this special contract under 
 section 6. 1 
 
 SEC. 168. Limitation of Liability by Private Notices. — 
 From the decision and judgment in this case, we gather that 
 it is competent for carriers, notwithstanding the Carriers' Act, 
 to limit their liability by any private notice given to the owner 
 before the acceptance of the goods, so long as the owner does 
 not repudiate the notice, and that the act refers only to public 
 general notices which are stuck up in the offices of carriers, or 
 otherwise publicly given. It struck at the root of the contracts, 
 which had formerly been implied from the constructive knowl- 
 edge of a public notice upon the part of the sender. It did 
 not forbid any special contract which the parties might think 
 proper to enter upon previous to the acceptance of the articles 
 by the carrier. With regard to the means by which such a 
 contract can be entered upon, there was guidance in various 
 decisions of our courts, even before 1851, when the legislature 
 passed an act which applies to two classes of carriers, viz., 
 
 1 2 El. & Bl. 750; 18 Jur. 143; 69; Fillebrown v. Grand Trunk Kail. 
 
 23 L. J. Q. B. 73. See also as to the Co., 55 Me. 462 ; Perry v. Thompson, 
 
 necessary knowledge of owner of goods, 98 Mass. 249. 
 Belger v. Dinsmore, 51 Barb. (N. Y.) 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 237 
 
 railway companies and canal traffickers. 1 And as that act is 
 confined to two classes of carriers, and does not refer to all 
 common carriers, it will be necessary to consider those cases, 
 as they have a direct bearing upon some of the practice con- 
 nected with this subject at the present time. At the same 
 time, there is cause for regret in the fact that the 17 & 18 
 Vict. c. 31 is limited in its application. There seems to be no 
 compensatory advantage gained by this legislation for a class 
 of a class, and there are evident disadvantages in a system of 
 law-making which tends to individualize instead of to gen- 
 eralize. The more individualization there is in our laws, the 
 more litigation there will be in our courts, and the more 
 injustice there will be in the world. The whole object-.of legis- 
 lation is the reverse of this. To make courts of law unneces- 
 sary is the function of a court of law. To unify this process 
 is the function of a legislative assembly. Any such process as 
 that which has been indicated above is necessarily retrograde 
 and anomalous. 
 
 SEC. 169. Special Contracts by Tickets or Notices. — The 
 cases, then, which were decided before the statute above re- 
 ferred to, show that a special contract limiting the responsi- 
 bility of the carrier, and his liability for loss or damage, may 
 be entered into by the delivery of a ticket, or written or printed 
 notice, to the sender of the goods, containing a statement of 
 the terms upon which he consents to carry ; and that the 
 acceptance of this notice by the owner of the goods, without 
 express repudiation, will be evidence from which a jury ought 
 to infer, or are justified in inferring, the existence of a contract 
 in the terms of the notice. 2 
 
 Sec. 170. Subject Considered. — It may at first sight seem 
 rather hard upon the sender of goods that he, in whose favor 
 the common law imposed upon those persons who held them- 
 
 1 17 & 18 Vict. c. 31. 89 ; Farnham v. Camden R. R. Co., 
 
 2 M'Manus v. Lancashire & York- 55 Penn. St. 53 ; Hopkins v. West- 
 sliire RaU. Co., 28 L.J. Exch. 353, cott, 6 Blatchf. (iJ. S. C. C.) 64; 
 per Erie, J. See also Baltimore, &c. Smith v. North Carolina R. R. Co., 64 
 B, R. Co. v. Skeels, 3 W. Va. 556 ; N. C. 235. 
 
 Adama Express Co. v. Haynes, 42 111. 
 
238 THE LAW OP CARRIERS. 
 
 selves out as carriers to the public the duty of carrying, should 
 thus, as it were, be forced into agreeing to the limitation of 
 that liability which has also been imposed by the common law. 
 The reason why the first of these duties was imposed was evi- 
 dently this, that no man ought, by a public profession, to be 
 led to take his goods to a certain place, from whence lie be- 
 lieves he can have them transmitted to the destination he 
 designs for them, merely to be told that the carrier will 
 not convey them. This would have been an injustice to the 
 owner of the goods who had taken the trouble to have them 
 conveyed to the carrier's office, and this injustice would have 
 been caused by the public profession of the carrier. It was 
 right, therefore, that a duty towards the public should be as- 
 sociated with a declaration of a trade, whether that declaration 
 was made in words or by acts. And therefore it was that the 
 common law said, a man who professes to carry for the public 
 shall not refuse to carry for any individual. This of course 
 presupposed a fair remuneration to the carrier. But now it 
 would almost seem as if by this system of private notices car- 
 riers could defeat the object that the common law had in view 
 by imposing this duty upon them. The means by which this 
 might apparently be accomplished would be by offering to each 
 owner of goods who brought them goods to be conveyed, a 
 ticket limiting or entirely divesting themselves of all responsi- 
 bility in connection with the transit of goods. In this way 
 they avoid one of their common-law duties. 
 
 SEC. 171. Repudiation by Owner. — If the owner receives 
 the ticket without distinctly repudiating it, he is held to have 
 acquiesced in its terms. If he does repudiate it, the carrier 
 must acquiesce in such repudiation, or the owner will be held 
 bound by a special contract in the terms of the notice. If 
 again he refuses to assent to the terms, and the carrier refuses 
 to carry on any other, the owner has to. remove his goods, and 
 find some other carrier with whom he can make other terms. 
 But in that case the carrier would have divested himself by 
 means of the notice of the duty imposed on him by the com- 
 mon law, and the person who was anxious to have his goods 
 transmitted would have suffered the injustice which has been 
 
LIMITED RESPONSIBILITY OF COMMON CARRIERS, ETC. 239 
 
 spoken of above. But the law does give the public some 
 remedy, although the question still arises whether, if the doc- 
 trine with regard to tickets and notices had not been carried 
 so far as it has been, as we have explained above, and as we 
 shall have occasion to illustrate below, the remedy might not 
 have been more direct, and in every way better for the owner 
 and sender of the goods. That remedy, as explained by 
 Parke, B., in Carr v. Lancashire and Yorkshire Railway, 1 is 
 this. " If," he says, " it had been the intention of the plain- 
 tiff to make the defendants liable as common carriers, he 
 ought to have rendered them a reasonable sum for the car- 
 riage of the chattel, and upon their refusal to carry, to bring 
 an action against them for not carrying. Most certainly 
 every common carrier is bound only to carry goods of that 
 description which his public calling requires him to carry. 
 This is established in the case of Johnson v. The Midland 
 Railway Company." 2 
 
 Sec. 172. Owner's Remedy. — The remedy, then, is an 
 action for a breach of the duty of the carrier, if the goods 
 which were tendered with a reasonable sum were such as the 
 carrier, by the known facts of his ordinary business, has 
 bound himself to carry. And in this place we say again, that 
 the inconvenience of having to withdraw the goods, the trou- 
 ble of finding another carrier, the delay which the person to 
 whom the goods are sent has to suffer, and other circum- 
 tances, indicate that the system of tickets and notices, which 
 has been carried to such an extreme in some of the cases 
 which we are about to mention, and which has been, to a great 
 extent, the cause of the limitation of the owner's remedy, may 
 not be an unmitigated good. 
 
 Sec. 173. A Private Notice, What constitutes. — In one 
 case, where the plaintiff was a veterinary surgeon and dealer 
 in horses, residing at Wakefield, and the defendants, the 
 Great Northern Railway Company, were common carriers by 
 railway 8 for hire from (among other places) Kirkstead, in 
 
 1 7 Exch. 707; 7 Rail. Cas. 426; 8 This case came before the Bail 
 17 Jur. 397 ; 21 L. J. 261 Exch. Court in the month of May, 1852. 
 
 ' 4 Exch. 367. 
 
240 THE LAW OF CAEEIERS. 
 
 Lincolnshire, to. Wakefield, in Yorkshire, it appeared that the 
 plaintiff, Morville, had, upon a certain day of August, brought 
 a horse to the Kirkstead station of the Great Northern Kail- 
 way Company, for the purpose of having it conveyed from 
 thence by railway to Wakefield. After the horse had been 
 placed in a horse-box attached to the down train from London, 
 the plaintiff went into the company's office and paid the 
 charge demanded for the carriage of the horse to Wakefield, 
 and upon the payment being made he signed a memorandum 
 or ticket, in a book kept by the company's clerk. It was to 
 the following effect : " The Great Northern and Lincolnshire 
 Eailway Company. Ticket for horses, cattle, sheep, pigs, 
 dogs, and live-stock of every description. — No. 17. Date, 
 August 15, 1851. From Kirkstead to Wakefield, 1 horse, at 
 19s. & 6d. — Paid. This ticket is issued subject to the own- 
 er's undertaking to bear all the risk of injury by conveyance 
 and other contingencies, and the owner is required to see to 
 the efficiency of the carriage before he allows his horses or 
 live-stock to be placed therein ; the charge being for the use 
 of the railway carriages and locomotive power only, the com- 
 pany will not be responsible for any alleged defects in their 
 carriages or trucks unless complaint is made at the time of 
 booking or before the same leave the station, nor for any dam- 
 ages, however caused, to horses, cattle, or live-stock of any 
 description travelling upon their railway or in their vehicles. 
 I have examined the carriages, and am satisfied with their 
 efficiency and safety. (Signed) John Morville, Owner or on 
 the owner's account." 
 
 A ticket or duplicate of that signed by the plaintiff, with 
 the exception that the part printed in italics in the above was 
 missed out, was handed to him by the clerk. When the train 
 reached Knothingly, the horse-box containing the plaintiff's 
 horse was detached from the London train and shunted upon 
 the Wakefield line by the servants of the defendants, and in 
 so doing a concussion took place between the horse-box and a 
 truck or carriage on the latter line, which caused an injury to 
 the horse. In this case it was held that there was a special 
 contract between the parties which was valid under 11 Geo. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 241 
 
 IV. and 1 Will. IV. c. 68, § 6, and that the ticket was not a 
 mere public notice, in which case it would no longer, under 
 section 4 of the said act, be of any avail. And it was there- 
 fore held that the terms of the contract protected the company 
 from liability in respect of injury to the horse. 1 In the course 
 of the above case, two other cases were mentioned which de- 
 serve some attention in this place. In the first of these the 
 declaration alleged that the defendants were proprietors of a 
 railway and carriages for the conveyance of passengers, cattle, 
 &c, for hire ; that the plaintiff delivered to and that they re- 
 ceived horses from the plaintiff to be carried for the plaintiff 
 in their carriages for reward, and that one of the wheels of a 
 carriage in which some of the horses were being conveyed 
 caught fire from friction ; that the plaintiff at the first station 
 requested the defendants to change the carriage and not to 
 persist in further conveying his horses in the same ; that in 
 spite of such request they did so persist ; that the wheel after- 
 wards, from want of precaution against friction and not other- 
 wise, was snapped asunder, whereby the carriage was thrown 
 off the rails and the horses were injured. It appeared that 
 the plaintiff, at the time of agreeing for the carriage of the 
 horses, was informed by the station-master that he would have 
 to run all risk of carriage, to which he assented ; and he also 
 signed a ticket in the ticket-book of the company, which con- 
 tained a memorandum that the owner of the horses was to be 
 required to see to the efficiency of the carriages, that the com- 
 pany was not to be responsible for any alleged defects in their 
 carriages or trucks, unless complaint was made at the time of 
 booking or before leaving the station, nor for any damage, 
 however caused, to the horses or live-stock travelling upon the 
 railway. 
 
 Sec. 174. Special Terms in Memorandum Part of Contract. 
 — Here it was held that the special terms of the memorandum 
 disproved the bailment alleged in the declaration which was 
 material to the breach, and therefore that the defendants 
 were entitled to the verdict upon the above plea. In dis- 
 
 1 Great Northern Rail. Co. v. Morville, 7 Kail. Cas. 830 ; 21 L. J. Q. B. 
 319; 16Jur. 528. 
 
 16 
 
242 THE LAW OP CARRIERS. 
 
 charging the rule, Wightman, J., said : " The allegation is 
 framed either upon contract or upon the duty arising out of 
 the defendants' character as common carriers. If the latter, 
 it has been disproved by the special terms upon which the 
 horses were received. If upon contract, then the evidence 
 shows that the horses were received by the defendants upon 
 very different terms. Then it is said that the whole allege 
 tion of the delivery and acceptance is immaterial, or that the 
 breach makes it so. But it is quite possible to reject the alle- 
 gation consistently with the breach. The breach states ' being 
 conveyed as aforesaid,' and therefore that which is alleged as 
 the ground of the liability cannot be rejected." 1 
 
 In the other case the plaintiff, being the owner of a horse, 
 delivered it to the defendants, a railway company, to be car- 
 ried on their railway subject to conditions which stated that 
 the owners undertook all risks of conveyance whatsoever, as 
 the company would not be responsible for any injury or dam- 
 age, howsoever caused, occurring to live-stock of any descrip- 
 tion travelling on the railway. The horse having been injured 
 by the horse-box being propelled against some trucks through 
 the gross negligence of the company, it was held that the 
 company under the terms of the contract were not liable for 
 the injury. 2 But in this country, in a great majority of the 
 States, while the carrier may, by special contract, limit his 
 liability as an insurer, as for loss of the goods by fire, and 
 other casualties which do not result from his negligence, yet 
 it is held that he cannot restrict his liability so as to excuse 
 himself from loss or damage resulting from the negligence of 
 his servants or agents. 8 In New York, however, it is held 
 
 1 Austin v. Manchester, Sheffield, s Ohio, &o. R. R. Co. v. Selhy, 47 
 & Lincolnshire Rail. Co., 20 L. J. Q. Ind. 471 ; Berry v. Cooper, 28 Ga. 
 B. 440 ; 16 Q. B. 600 ; 15 Jur. 670 ; 543 ; Reno v. Hogan, 12 B. Mon. 
 Hawkins v. Great Western R. R. Co., (Ky.) 63 ; Pennsylvania R. R. Co. v. 
 17 Mich. 57 ; Illinois, &c. R. R. Co. Butler, 57 Penn. St. 335 ; Ashmore 
 v. Adams, 42 111. 474. v. Pennsylvania R. R. Co., 28 N. J. L. 
 
 2 Austin t7. Manchester, Sheffield, 180 ; Southern Express Co. v. Moon, 
 & Lincolnshire Rail. Co., 10 C. B. 39 Miss. 822 ; Hoadley v. Northern 
 454; 7 Rail. Cas. 300; 16 Jur. 763; Transportation Co., 115 Mass. 304; 
 21 L. J. C. P. 179. Perry v. Thompson, 98 Mass. 249 ; 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 243 
 
 that the carrier may, by an explicit special contract, limit his 
 liability against loss or damage resulting even from the gross 
 or wilful negligence of his agents or servants. 1 But in most 
 of the States, while the carrier may impose reasonable limita- 
 tions upon his liability, he cannot by any provision, however 
 explicit or direct, screen himself from liability for loss or 
 injury resulting from his own or his servants' negligence. 2 
 
 Sec 175. Constructive Knowledge. — The constructive 
 knowledge which, previous to the Carriers' Act, 3 was suffi- 
 cient to make the provisions of a public notice binding upon a 
 sender of goods, is under the present system sufficient to bind 
 a man in a contract with terms similar to those of a notice, if 
 the notice has been delivered to him at the time that the 
 goods were accepted for conveyance. It is not necessary in 
 such a case that the statement made in the notice or ticket 
 should be read over to the sender of the goods, in order that 
 he may be held constructively to know what its contents 
 
 Judson 0. Western R. R. Co., 6 Allen 
 (Mass.), 486 ; Pemberton County v. 
 New York Central R. R. Co., 104 
 Mass. 144 ; Grace v. Adams, 100 Mass. 
 505 ; Medfield School District v. Bos- 
 ton, &c. R. R. Co., 102 Mass. 552 ; 
 New Orleans, &c. R. R. Co. v. Paler, 
 58 Miss. 511 ; Shriver o. Sioux City, 
 &c. R. R. Co., 24 Minn. 506 ; Louis- 
 ville, &c. R. R. Co. v. Brownlee, 14 
 Bush (Ky.), 590 ; Chicago, &o. R. R. 
 Co. v. Hale, 2 111. App. 150; Kan- 
 sas Pacific R. R. Co. v. Reynolds, 17 
 Kan. 251 ; United States Express Co. 
 b. Baehman, 28 Ohio St. 144 ; Clark 
 v. St. Louis, &c. R. R. Co., 64 Mo. 
 440 ; Camp v. Hartford, &c. Steamboat 
 Co., 43 Conn. 333 ; Bank of Kentucky 
 v. Adams Express Co., 93 U. S. 174 ; 
 American Express Co. v. Shier, 55 
 Penn. St. 140 ; Southern, &c. R. R. 
 Co. v. Henlim, 52 Ala. 606 ; Nashville, 
 &c. R. R. Co. v. Johnson, 6 Heisk. 
 (Tenn.) 271. 
 
 1 Maguin v. Dinsmore, 56 N. Y. 
 168 ; Westcott v. Eargo, 61 N. Y. 542 ; 
 
 Poucher v. New York Central R. R. 
 Co., 49 N. Y. 263 ; Spinotti v. Atlas 
 Steamship Co., 81 N. Y. 71 ; 36 Am. 
 Rep. 579 ; Bissell v. New York Cen- 
 tral R. R. Co., 25 N. Y. 442 ; Balti- 
 more, &c. R. R. Co. v. Rathbone, 1 
 W. Va. 87. 
 
 * Pennsylvania R. R. Co. v. Butler, 
 57 Penn. St. 335 ; Pennsylvania R. R 
 Co. v. McClosky, 23 Penn. St. 536 ; 
 Earnham v. Camden, &c. R. R. Co., 
 55 Penn. St. 53 ; American Express 
 Co. v. Sands, 55 Penn. St. 53 ; Evans- 
 ville, &c. R R. Co. v. Young, 28 Ind. 
 516 ; Seller v. Pacific, &c. R. R. Co., 
 1 Oregon, 409 ; Kallman v. United 
 States Express Co., 3 Kan. 205 ; Da- 
 vidson v. Graham, 2 Ohio St. 131 ; 
 Southern Express Co. v. Moon, 39 
 Miss. 822 ; Ashmore v. Pennsylvania, 
 &c. R. R. Co., 28 N. J. L. 180; 
 Stedman o. Western Transportation 
 Co., 48 Barb. (N. Y.) 97; Dorr v. 
 New Jersey Steam Navigation Co., 4 
 Sandf. (N. Y.) 97- 
 
 8 11 Geo. IV. and 1 Will. IV. c. 68. 
 
244 THE LAW OP CAEEIEES. 
 
 are. 1 In all such cases there is a greater or less amount of 
 constructive knowledge. Even were such a notice read over 
 to the owner of the goods there could be no certainty that he 
 had a knowledge of the provisions. Even if reading over was 
 thought necessary before such a notice was held to be bind- 
 ing, fault might be found with this rule on the ground that in 
 some cases explanation was an absolute necessity. 
 
 Sec. 176. Doctrine of Rules. — But the doctrine of rules 
 is that they do minor injustices with a view to the maximum 
 of justice. • And so, in deciding that the mere delivery of the 
 ticket affects the owner with constructive knowledge, the doc- 
 trine may have been decided in consonance with the weight of 
 expediency. One thing may be said with regard to this rule, 
 and that is that any person of ordinary prudence, who was 
 sending goods by means of a carrier, upon being presented 
 with a notice or ticket would make a point of becoming cogni- 
 zant of its contents. The case of the York, Newcastle, and 
 Berwick Railway Company v. Crisp 2 is instructive in this con- 
 nection. The facts as stated by the witnesses were these: 
 That the respondents were partners as cattle jobbers, and the 
 appellants were common carriers by railway from Alnwick to 
 Newcastle. That upon a certain day the respondent brought 
 some sheep and pigs to Alnwick, one of the stations on the 
 appellants' railway, with the view of having them conveyed to 
 Newcastle. Further, that he engaged trucks for the convey- 
 ance of his live-stock, and paid for their hire. That a certain 
 ticket was given to him which contained terms exonerating 
 the railway company from liability in case of injury to the 
 animals, or delay in the delivery. There was proved to have 
 been considerable delay before the stock was despatched from 
 Alnwick, owing to the fact that no trucks were there, hy 
 means of which they could be forwarded. Owing to this 
 delay the cattle were too late for the Newcastle market, with 
 a view to which they had been destined by the owner, and 
 were also injured by reason of the long time which they had 
 
 1 Slim v. Great Northern Rail. Co., 2 14 C. B. 527 ; 2 C. L. R. 1357 ; 
 14 C. B. 647 ; 8 Jur. 1119 ; 23 L. J. 18 Jur. 606 ; 23 L. J. C. P. 125. 
 C. P. 166. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 245 
 
 been without food. It was further admitted by the witnesses 
 for the appellants that no duplicate of the ticket was given, 
 that it was not read to the respondent, nor was his attention 
 called to the contents or meaning. The county court judge 
 of Northumberland had declined to non-suit the plaintiffs, and 
 left it to the jury to say whether the railway company were 
 common carriers of cattle for hire, and whether they received 
 the plaintiff's cattle for carriage as common carriers for hire, 
 or whether they received them under a special contract on the 
 terms contained in the ticket. This was held to be a misdi- 
 rection, Jervis, C. J., remarking : " I do not see that there 
 was any evidence that the railway company were common car- 
 riers of cattle, or that they were bound to carry these animals. 
 The only evidence is, that they took cattle upon a special con- 
 tract, or that they offered to take them upon special terms, 
 which were accepted. The judge ought to have told the 
 jury that there was either a special contract, or no contract 
 at all." i 
 
 Sec. 177. Reconciliation of Cases. — The decision in this 
 case seems to have been misunderstood by some of our text- 
 book writers. 2 They seem to have regarded the last sentence 
 of the Chief Justice's judgment as a general rule applicable to 
 all cases in which a ticket was presented to the sender of 
 goods. If that were the case, the rule with regard to the 
 effect of private notices would be much wider than it has been 
 stated to be. 3 If such were the case the presentation of the 
 private notice would create the special contract. As the law 
 stands, however, it seems to us that the presentation and ac- 
 ceptance of a private notice limiting a carrier's responsibility, 
 leaves the question as to whether the acceptance of, or acqui- 
 escence in the terms contained in it, constitutes a binding 
 special contract in so far as the sender of the goods is con- 
 cerned, a question of evidence for the jury. 4 And it seems 
 evident to us that the last sentence of the judgment quoted 
 
 1 Cleveland, &c. R. B.. Co. v. Per- 8 Ante, p. 192. 
 kins, 17 Mich. 296. * Walker v. York & Midland Kail. 
 
 See Powell on Carriers, 2d ed., p. Co., 2 El. & Bl. 750. See ante, 
 
 107 - p. 193. 
 
246 THE LAW OF CARRIERS. 
 
 above is to be taken in conjunction with the first part of it. 
 There the Chief Justice said that there was no evidence that 
 the railway company were common carriers of cattle. It is 
 evidently necessary, before you can establish the fact of a car- 
 rier's duty to carry a particular class of goods, to prove that 
 he was a common carrier of such articles. If you take a cow 
 to a man who only carries letters, no duty arises upon his part 
 out of your act. In such a case, then, if a man carries the 
 cow, it is quite evident that there must be a special contract, 
 or no contract at all. And so in the absence of all proof that 
 the railway company were in the habit of acting as common 
 carriers of cattle, the only question that can be left for the 
 jury to answer is that which was in this case indicated by the 
 Chief Justice. If the railway company were not common car- 
 riers of live-stock, they could only have carried under some 
 special contract, and the plaintiff was either bound by that 
 contract, or if he had signed the ticket, not knowing its con- 
 tents, or believing it to contain only an undertaking to pay, 
 he might reasonably be held" to have entered into no contract 
 at all, because the parties to the contract were not, under 
 those circumstances, ad idem. There is, therefore, no diffi- 
 culty in reconciling these two cases ; the difficulty arose out 
 of the misunderstanding of one of them. 
 
 Sec. 178. Rule in Shaw v. York, &c. Railway Co. — 
 The case of Shaw v. York and North Midland Railway Com- 
 pany 1 bears upon this subject. The declaration averred that 
 the defendants, who were proprietors of a railway and car- 
 riages for the conveyance of passengers, cattle, and goods, 
 received nine horses of the plaintiff to be safely and securely 
 carried in their carriages by the railway for hire. It also 
 asserted that it was thereupon the duty of the defendants 
 safely and securely to carry and convey and deliver the 
 horses. It also averred the loss of one of the horses through 
 the insufficiency of one of the carriages. It appeared, how- 
 ever, that a ticket had been delivered to the plaintiff at the 
 time the horses were received. This ticket was in the nature 
 
 1 6 Rail. Cas. 87; 13 Q. B. 347 ; 13 Jur. 385 ; 18 L. J. Q. B. 181. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 247 
 
 of a receipt, but it had at the bottom the following memoran- 
 dum : " N. B. This ticket is issued subject to the owner's 
 undertaking all risks of conveyance whatsoever, as the com- 
 pany will not be responsible for any injury or damage, how- 
 ever caused, occurring to horses or carriages while travelling, 
 or in loading or unloading." . 
 
 Before the plaintiff received this ticket at the York Station 
 he had been shown three horse-boxes and had objected to one 
 of them, and one of the defendants' servants had attempted to 
 remedy the defect and had assured the plaintiff that the box 
 was quite safe. On the journey it was discovered that one of 
 the plaintiff's horses was dead. It had fallen owing to the 
 defective partition, which the company's servant had attempted 
 to repair, and had been killed. In this case it was held, as 
 we should have expected, that the duty alleged in the declara- 
 tion of the plaintiff did not arise, and that the terms contained 
 in the ticket formed part of the contract for the carriage of 
 the horses. In ruling, the court said : " It may be that, not- 
 withstanding the terms of the contract, the plaintiff might 
 have alleged that it was the duty of the defendants to have 
 furnished proper and sufficient carriages, and that the loss 
 happened from a breach of that duty ; but the plaintiff has 
 not so declared, but has alleged a duty which does not arise 
 upon the contract as it appeared in evidence." 1 
 
 SEC. 179. Carrier's Duty, how laid aside. — It seems to US 
 most important to bear this fact in mind. The suggestion of 
 Lord Denman, in that case, shows that the law is jealous of 
 the duty of a common carrier, and will not allow him to divest 
 himself of it without express words indicative of an agree- 
 ment to that effect. The imposition of this duty is not a light 
 thing, and has been sanctioned by the accumulated wisdom of 
 many years. It is therefore not to be shuffled off, but is only 
 to be laid aside under circumstances which import a clear 
 agreement upon the part of the other party to the contract 
 that the common carrier should be divested of his character 
 
 1 See Great Western R. R. Co. v. v. Chicago, &c. R. R. Co., 24 Iowa, 
 Hawkins, 18 Mich. 427; McDaniel 412." 
 
248 THE LAW OF CARRIERS. 
 
 of common carrier and become a private carrier for hire. 1 
 Where, therefore, the terms of the contract are express and 
 cover the question of negligence, they will protect the carrier 
 from liability for losses or injuries which are clearly due to his 
 want of care. 2 There is no hardship in this in so far as the 
 owner is concerned. If he cho.oses to intrust goods to carri- 
 ers who will not be responsible for loss, and who protect them- 
 selves from the liability for losses to others which may be due 
 to their carelessness, he cannot complain of hardship if he 
 loses his goods. It is a man's duty to employ such persons as 
 he can trust ; if he feels unwilling to repose a trust in them 
 prudence would advise him to exact a guarantee, and if they 
 will not give such an assurance of care he is not bound to 
 employ them. The law cannot make a man. prudent. All it 
 can do is to protect prudence when it does exist. In the last- 
 cited case the injury was found to have been occasioned by the 
 gross negligence of the defendants in managing their trains, 
 but, as we have seen, the terms of the notice were held bind- 
 ing against the plaintiff and therefore protected the defend- 
 ants. The question, as Alderson, B., remarked, is, what are 
 the terms upon which the defendants undertook to carry the 
 goods ? " It is clear," he went on to say, " that they were such 
 as the defendants might make. It is plain to me that they 
 undertook to carry the horse at the risk of the plaintiff. The 
 words are, ' the owner undertaking all risk of conveyance 
 whatsoever.' Now, under these terms,- a question might be 
 raised whether the injury contemplated was such as must issue 
 in injury to the thing conveyed ; so that a doubt might arise 
 whether the case of the horse being stolen was contemplated, 
 as under such circumstances the accident would not issue in 
 
 1 Chippendale v. Lancashire & Phillips B.Edwards, 28 L.J. 52 Exch.; 
 
 Yorkshire Rail. Co., 7 Rail. Cas. 824; M'Andrews v. Electric Telegraph Co., 
 
 15 Jur. 1106; Hughes v. Great West- 17 C. B. 3; 25 L. J. C. P. 26; 
 
 ern Rail. Co., 14 6. B. 637 ; 2 C. L. Streeter v. Horlock, 7 Moore, 287, per 
 
 R. 1360 ; 18 Jur. 1001 ; 23 L. J. C. P. Park, J. 
 
 153 ; Great Western Rail. Co. v. Good- 2 Can- v. Lancashire & Yorkshire 
 
 man, 12 C. B. 313 ; 21 L. J. 197 C. Rail. Co., 7 Exch. 707 ; 7 Rail. Cas. 
 
 P.; Whiten. Great Western Rail. Co., 426; 17 Jur. 397; 21 L. J. Exch. 
 
 2 C. B. n. s. 7 ; 26 L. J. 158 C". P. ; 261. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 249 
 
 damage to the horse. . . . The result is that, if there has 
 been gross negligence upon the part of the defendants, they 
 are protected against liability by virtue of the words of the 
 contract." l 
 
 SEC. 180. Interpretation of Private Notices. — This judg- 
 ment shows that the private notice will be interpreted strictly 
 as against the carrier, as the learned judge seemed to imagine 
 that the notice, which asserted that the company would not be 
 liable for "any injury or damage (however caused)," would 
 not protect them against a liability for a loss of the horse by 
 its being stolen. 
 
 In the same case, Platt, B., seemed to regard the interpre- 
 tation there given to the notice as too lax, in so far as the 
 defendants were concerned, and expressed his opinion that the 
 owner of the horse never dreamed that the ticket absolved 
 the company of all liability for damage when he signed it. 
 The principle of the decision is, however, as it has been stated 
 above. This principle will be further illustrated when we 
 come to speak of the carriers of passengers. 2 
 
 Sec. 181. Carriers' Act protects Carriers -who carry by 
 Special Contract. — Another point of importance is to be 
 
 1 But see, per Best, C. J., in New- Evansville, &c. R. R. Co. v. Young, 
 
 born ». Just, 2 Car. & P. 76, and per 2S Ind. 516. 
 
 Loud Elienborough, Lyon v. Mells, 2 See Great Northern Bail. Co. v. 
 
 5 Bast, 428 ; and see the American cases Hawcroft, 21 L. J. 178 Q. B. ; Denton 
 
 noted below. It is now certain that v. Great Northern Rail. Co., 5 El. &B1. 
 
 no notice or contract will discharge a 860 ; 25 L. J. 129 Q. B. ; cf. Warlow 
 
 common carrier from liability for negli- v. Harrison, 29 L. J„ 14 Q. B. In 
 
 gence, misfeasance, or ordinary want of the case of Winkfield ». Packington, 
 
 care. New Jersey Steam Nav. Co. v. 2 C. & P. 600, Lord Tbntekdbn said : 
 
 Merchants' Bank, 6 How. (U. S.) " If a person goes to the office of a car- 
 
 310 ; York Company v. Central R. R., rier and asks what a thing will be done 
 
 3 Wall. (U. S.) 107; Mobile, &c. R. for, and he is told by a clerk or servant 
 
 R. Co. v. Jarboe, 41 Ala. 644 ; Mont- who is transacting the business there 
 
 gomery, &c. R. R. Co. v. Edmonds, that it can be done for a certain sum, 
 
 41 Ala. 667; New Orleans, &c. Ins. the master can charge no more." The 
 
 Co. v. New Orleans, &c. R. R. Co., point seemed to be that the goods were 
 
 20 La. Ann. 202 ; Parnham v, Camden, sent on the faith of what the clerk said, 
 
 &o. R. R Co., 55 Penn St. 53 ; Ameri- and his not being authorized to make 
 
 can Express Co. v. Sands, 55 Penn. charges or statements of the kind was 
 
 St. 140; Stedman v. "Western Trans- immaterial, 
 portation Co., 48 Barb. (N. Y.) 97 ; 
 
250 THE LAW OF CARRIERS. 
 
 noticed in relation to special contracts, and that is the fact 
 that the carrier, who enters into such a contract for the car- 
 riage of goods, does not lose the protection of the 1st section 
 of the Carriers' Act, 1 except in so far as the contract he has 
 entered into is inconsistent with the goods being received by 
 him in the character of a carrier. 2 For example, if a carrier 
 receives goods upon the special contract that he shall not be 
 liable in case of their injury, damage, or loss, that he is not 
 to be held accountable for any delay in th'eir delivery, in such 
 a case he evidently does not receive the goods as a carrier, 
 and the act cannot be held to apply to him. And from the 
 same case it is to be gathered, as Kelly, C. B., remarked, " that 
 section 6 applies only to contracts, the terms of which are 
 inconsistent with the exemption claimed by the carriers under 
 section 1." 3 
 
 Sec. 182. Distinction between Classes of Carriers. — As we 
 have seen, the law which refers to special contracts, as entered 
 into by common carriers, is not the same for all classes of 
 those who carry on this trade. We have seen that the method 
 in which contracts of such a nature shall be entered into by 
 railway and canal companies has been determined by legisla- 
 tive enactment, while the rules which apply to the contracts of 
 carriers, other than those just mentioned, have to be gathered 
 from the cases which we have just been considering. 
 
 Sec. 183. Modification of these Rules. — It seems expedi- 
 ent, therefore, to consider in this place in what way the " Kail- 
 way and Canal Traffic Act, 1854," 4 modified the general rules 
 as laid down prior to that year, in so far as railway and canal 
 traffic is concerned. The preamble of that act recited the 
 expediency of making better provisions for regulating the 
 traffic on railways and canals ; and in its 7th section, with 
 
 1 11 Geo. IV. and 1 Will. IV. c. 68. of Ireland. Alexander v Malcomson, 
 
 2 Baxendale v. Great Eastern Rail. 2 Ir. R C. L. 621 ; affirmed, 3 Ir. 
 Co., 10 B. & S. 212 Exch. Ch. TL C. L. 578 ; 20 L. T. k. s. 930, 
 
 8 See further with regard to the Exch. Ch. ; M'Court p. London & 
 
 question of special contracts, Martin v. North-Western Rail. Co., 3 Ir. R. C. 
 
 Great Indian Peninsula Rail. Co., 37 C. L. 107 Q. B. ; affirmed, 3 Ir. K 
 
 L. J. Exch. 27 ; 3 L. R. Exch. 9 ; C. L. 462 Exch. Cham, 
 
 and some cases decided in the Courts 4 17 & 18 Vict. c. 31. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 251 
 
 which we, in this place, have more particularly to do, enacted 
 that a railway or canal company " shall be liable for the loss 
 of, or for any injury done to any horses, cattle, or other ani- 
 mals, or to any articles, goods, or things, in the receiving, for- 
 warding, or delivering thereof, occasioned by the neglect or 
 default of such company, or its servants, notwithstanding any 
 notice, condition, or declaration made and given by such com- 
 pany thereto or in any wise limiting such liability, and every 
 such notice, condition, or declaration is hereby declared to be 
 null and void." 
 
 Sec. 184. Reasonable Conditions. — It provides, however, 
 in the first place, that nothing contained in the act " shall be 
 construed to prevent the said companies from making such 
 conditions, with respect to the receiving, forwarding, and 
 delivering of any of the said animals, articles, goods, or things, 
 as shall be adjudged by the court or judge, before whom any 
 question relating thereto shall be tried, to be just and rea- 
 sonable." l 
 
 Sec 185. Amount Recoverable. — It provides, in the second 
 place, " that no greater damages shall be recovered for the 
 loss of or for any injury done to any of such animals beyond 
 the sums hereinafter mentioned (that is to say), for any horse, 
 501. ; for any neat cattle, per head, 151. ; for any sheep or pigs, 
 per head, 21. ; unless the person sending or delivering the same 
 to such company shall, at the time of such delivery, have de- 
 clared them to be respectively of higher value than as above 
 mentioned ; in which case it shall be lawful for such company 
 to demand and receive, by way of compensation for the in- 
 creased risk and care thereby occasioned, a reasonable per- 
 centage upon the excess of the value so declared, above the 
 respective sums so limited, as aforesaid, and which shall be 
 paid in addition to the ordinary rate of charge, and such per- 
 centage or increased rate of charge shall be notified in the 
 manner prescribed in 11 Geo. IV. and 1 Will. IV. c. 68, and 
 shall be binding upon such company in the manner therein 
 mentioned." 
 
 1 See Adams Express Co. v. Keagan, 29 Lid. 21. 
 
252 THE LAW OP CARRIERS. 
 
 SEC. 186. Proof of Value. — Contract to be signed. — It pro- 
 vides, in the third place, " that the proof of the value of such 
 animals, articles, goods, and things, and the amount of the 
 injury done thereto, shall in all cases lie upon the person 
 claiming compensation for such loss or injury." And it pro- 
 vides, in the fourth place, "that no special contract between 
 such company and any other parties respecting the receiving, 
 forwarding, or delivering of any animals, articles, goods, or 
 things, as aforesaid, shall be binding upon, or affect any such 
 party, unless the same be signed by him, or by the party de- 
 livering such animals, articles, goods, or things respectively 
 for carriage ; " and, lastly, it is provided that nothing contained 
 in that act " shall alter or affect the rights, privileges, or lia- 
 bilities of any such company, under 11 Geo. IV. and 1 Will. IV. 
 c. 68, with respect to articles of the descriptions mentioned in 
 the said act." 1 
 
 Sec. 187. Rail-way and Canal Carriers can still make Special 
 Contracts. — In a case decided in 1856, the provisions above 
 alluded to came under the consideration of the Court of Com- 
 mon Pleas. 2 And it was held that while the 7th section 
 of the Railway and Canal Traffic Act makes notices by rail- 
 way and canal companies which limit their liability void, it 
 does not prevent them from entering into special contracts for 
 the carriage of goods, provided the conditions contained in 
 such contracts are such as are held reasonable by the judge or 
 court before whom any question relating thereto is tried, and 
 provided the contract is signed by the party delivering the 
 goods to be carried. 3 Some light was thrown .upon this sec- 
 tion of this act by another case, to which it will be well to 
 refer. There it was shown that all the provisions of the 7th 
 section of the 17 & 18 Vict. c. 31, must be read together, and 
 that the limitations which under that section a carrier is 
 entitled to make by contract of his liability must not only he 
 just and reasonable, but must also be embodied in a special 
 
 1 See American Session Laws, 1855, 8 See McMillan v. Michigan Soutli- 
 p. 173. ern, &c. R. R. Co., 16 Mich. 79. 
 
 a Simons v. Great Western Rail. 
 Co., 18 C. B. 805 ; 26 L. J. C. P. 25. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 253 
 
 contract in -writing, signed by the owner or sender of the 
 goods. As there were other points, the decision of which bore 
 upon the provisions of the statute under consideration, it may 
 be well to enter somewhat fully into the circumstances of the 
 case. 
 
 Sec. 188. Act Construed. — It was an appeal to the House 
 of Lords from a judgment of the Court of Exchequer Cham- 
 ber, which had reversed a decision of the Court of Queen's 
 Bench, in an action in which the appellant (Peek) was plain- 
 tiff, and the respondents (the North Staffordshire Railway 
 Company) were defendants. 1 The appellant's agent was in 
 the habit of sending goods by the respondents' railway, and 
 had received printed notices from them, stating that the com- 
 pany would receive, forward, and deliver goods solely subject 
 to the conditions thereunder stated ; and among the conditions 
 thereunder stated, was a condition that the company should 
 not be responsible for the loss of, or injury to any marbles, 
 unless declared and insured according to their value. The 
 agent, being directed to do so by the appellant, sent certain 
 marbles to one of the company's stations, and instructed the 
 carter to inquire what the insurance would be, who was told 
 by the clerk of the company that he did not know, unless the 
 value of the goods was stated. Some correspondence ensued 
 as to the rates of insurance for marbles, and the agent was 
 informed verbally what the respondents' charge for the car- 
 riage of the marbles would be at the insured rate, and what 
 at the uninsured rate. The agent subsequently by letter in- 
 structed the company to forward the marbles " not insured." 
 He had, before he wrote the letter instructing the company to 
 forward the marbles as directed, again received a notice from 
 the respondents, stating that they would receive, forward, and 
 deliver goods subject to the condition (amongst others) that 
 they would not be responsible for loss of, or injury to any 
 marbles unless declared and insured according to their value. 
 The marbles were forwarded as directed, and when delivered 
 were found to be damaged by exposure to rain. In an action 
 
 1 Peek v. North Staffordshire Rail. 914 ; 32 L. J. Q. B. 241 ; 11 W. B, 
 Co., 10 H. L. Cas. 473 ; 9 Jur. s. s. 1023 ; 8 L. T. n. s. 768. 
 
254 THE LAW OP CARRIERS. 
 
 for the damage thus caused, brought by the appellant against 
 the company as common carriers under the 7th section of the 
 Railway and Canal Traffic Act, 1 the company pleaded that the 
 marbles were delivered to be carried by them subject to a cer- 
 tain special contract, whereby it was agreed that they should 
 not be responsible for loss of, or injury to, marbles, unless de- 
 clared and insured according to their value, and that the same 
 were not, nor was any part thereof, so declared or insured. 
 The company also pleaded that the marbles were delivered 
 and received on the above condition, and that such condition 
 made by the respondents, and assented to by the appellant, was 
 a just and reasonable condition. The Court of Exchequer 
 Chamber (reversing the decision of the Queen's Bench) di- 
 rected that the defendants were entitled to a verdict on these 
 pleas. In the House of Lords the following questions were 
 put to the judges, and were answered by Blackburn, Willes, 
 Crompton, JJ., Martin, B., Williams, J., the Lord Chief 
 Baron, and the Lord Chief Justice : 2 — 
 
 Sec. 189. Reasonable Condition. — First. Is the condition 
 that the company should not be responsible for injury to the 
 goods (that is, the marbles) unless the same were declared or 
 insured to their value, a just and reasonable decision, within 
 the true intent and meaning of the 17 & 18 Vict. c. 31, § 7 ? 
 
 Secondly. Is the plaintiff entitled to have the verdict 
 entered for him upon the fourth plea (the first of those quoted 
 above) ? 
 
 Thirdly. Is the plaintiff entitled to have the verdict entered 
 for him upon the fifth plea (the second of those quoted 
 above) ? 
 
 SEC. 190. Effect of Notice. — Special Contract must be 
 signed. — Unjust and Unreasonable Condition. — The House of 
 Lords reversed the decision of the Exchequer Chamber, and 
 affirmed the judgment of the Queen's Bench, holding that no 
 general notice given by a railway company is valid in law for 
 the purpose of limiting the common-law liability of carriers, 
 but that such liability may be limited by such conditions as the 
 
 1 17 & 18 Vict. o. 81. 
 
 2 These answers are worthy of careful perusal. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 255 
 
 court or judge shall determine to be just and reasonable, and 
 that such conditions must be embodied in a special contract, 
 signed by the owner or person delivering the goods. In this 
 case, therefore, the condition, as stated above, was not just or 
 reasonable. The Lord Chancellor (Westbtjry), in referring to 
 this point, said : " If the present condition were introduced in 
 a contract between the company and the owner of the goods 
 delivered to be carried by that company, the necessary effect 
 of such a contract would be, that it would exempt the company 
 from responsibility for injury, however caused, including, there- 
 fore, gross negligence, and even fraud and dishonesty on the 
 part of the servants of the company, for the condition was ex- 
 pressed without any limitation or exception. I am, therefore, 
 in the first place, clearly of opinion that the condition insisted 
 upon by the company, even if it had been duly embodied in a 
 special contract between the parties to this appeal, is a condi- 
 tion which it would be the duty of a court or judge to hold to 
 be neither just nor reasonable." 
 
 Sec. 191. Such Contract, What is. — In considering the 
 other point, as to whether the letter from the appellant's agent 
 to the respondent company, requesting them to forward the 
 marbles to London, " not insured, as directed," constituted a 
 special contract, embodied in writing, and signed by the owner 
 or the person delivering the goods, his lordship said : " It is 
 insisted by the company that that requisition of the statute is 
 answered and fulfilled by the letter of the 1st August, 1857, 
 and it is contended by the company that the words ' not in- 
 sured ' do refer to and incorporate the condition. I am clearly 
 of opinion that there is no foundation for that condition on 
 their part, and I am also of opinion that it is not competent, 
 by any description of parol evidence, so to interpret the words 
 ' not insured ' as to embody or incorporate the condition itself 
 into the letter, and thereby make it a special contract in writr 
 ing. Such special contract in writing, signed by the party 
 delivering the goods, must itself, either in terms or by distinct 
 reference, set out or embody the condition. But I am of 
 opinion that those words ' not insured ' do not refer to the 
 written condition, or afford any ground upon which the written 
 
256 THE LAW OP CARRIERS. 
 
 condition can be regarded as incorporated with the letter. In 
 order to embody in the letter any other document, or memo- 
 randum, or instrument in writing, so as to make* it part of 
 a special contract contained in that letter, the letter must 
 either set out the writing referred to, or so clearly and 
 definitely refer to the writing, that by force of the reference 
 the writing itself becomes part of the instrument it refers 
 to." i 
 
 Sec. 192. Reasonable Conditions. — In the case of Aldridge 
 v. The Great Western Railway Company, 2 the decision of which 
 was suspended until the publication of the judgment of the 
 House of Lords in the case just referred to, 3 a person of the 
 name of Smith, a general carrier, had signed for the plaintiff 
 a printed contract, containing, amongst other conditions, the 
 following: 1. 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 ; 2. Nor in 
 respect of goods destined for places beyond the limits of the 
 company's railway; and, as respects the company, their re- 
 sponsibility will cease when such goods shall have been de- 
 livered 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. This was an action against the de- 
 fendants as carriers. It appeared that certain goods, consist- 
 ing of empty packages, which had already traversed the line of 
 railway of the defendants, were sent back, and for the return 
 carriage of which, when empty, it was the custom not to make 
 any further charge. It also appeared that the packages were, 
 at the time the printed contract, already referred to, was signed, 
 delivered to the defendants at a station on their line of railway ; 
 that the packages were addressed to a station on another line of 
 railway, to which station the defendants were not carriers ; that 
 
 1 Loud Chelmsford dissented from 2 15 C. B. n. s. 588; 33 L. J. C. 
 
 the opinions expressed by the Lord P. 161. 
 
 Chancellor and Lords Wenslet- • Peek v. North Staffordshire RaiL 
 
 dale and Oeanwoeth throughout. Co., 10 H. L. Cas. 473. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 257 
 
 the goods -were safely carried by the defendants to the ter- 
 mination of their own line of rail-way, and that they were there 
 delivered to another company. It further appeared that sub- 
 sequent to such delivery the packages were lost. 
 
 Sec. 193. Questions Raised. — Unreasonable Condition. — 
 The questions for decision in this case were three : 1. Was the 
 first condition quoted above just and reasonable ? 2. Was 
 the second condition above quoted just and reasonable ? 3. 
 Was the special contract in this case duly signed ? The first 
 condition was held to be unreasonable, and upon sufficient 
 grounds. The company was not conveying the packages for 
 nothing. A charge had actually been made for the return car- 
 riage of empty packages at the time they were despatched full. 
 That empty packages were returned free of charge was one of 
 the inducements held out to the public to send full packages 
 by means of that mode of conveyance. The expense of the 
 return was evidently covered by the amount paid for the jour- 
 ney out. 1 
 
 Sec. 194. Signature of Agent. — The second condition was 
 held to be reasonable and legal. It, therefore, protected the 
 defendants in this case. The company had no control, could 
 exercise no care, and received no compensation for the transit 
 of the goods upon the line beyond the limits of their own rail- 
 way. There was, therefore, nothing unreasonable or unjust in 
 refusing to be liable for a loss occurring, which they had no 
 means of preventing, and occurring during a part of the 
 transit for which they received no remuneration. 2 The third 
 question was decided in the affirmative. The man Smith, who 
 signed the contract in the name of the plaintiff, was a carrier 
 employed both by the plaintiff and by the defendants. There 
 was no reason why his signature should not bind the plaintiff. 
 The suggestion that he was employed by both was not a good 
 reason. The fact was, he was employed by the plaintiff, and 
 
 1 Pierce P.Milwaukee, 23 Wis. 387. ger v. Simmons, 8 Abb. (N. Y.) Pr. 
 
 2 -As to the American law as to n. s. 409; Gass v. New York, &o. 
 through traffic on connecting routes, R. R. Co., 99 Mass. 220 ; Lamb v. 
 see Manhattan Oil Co. v. Camden R. Camden, &c. R. R. Co., 2 Daly (N. 
 R. Co., 52 Barb. (N. Y.) 72; Salin- Y.), iU. 
 
 17 
 
258 THE LAW OP CARRIERS. 
 
 in general the signature of a common agent binds either party. 
 This has been over and over again decided both on the con- 
 struction of the 4th and 17th sections of the Statute of 
 Frauds. 1 
 
 Sec. 195. Special Contracts must be Reasonable. — All- 
 Other case decided that the 7th section of this act, which makes 
 void all notices, conditions, and declarations, made or given by 
 a railway or canal company limiting their liability, unless such 
 as the court or judge trying the cause may adjudge to be just 
 or reasonable, extends to the case of a special contract signed 
 in conformity with the subsequent provision in the same sec- 
 tion. 2 In that case the plaintiff brought three horses to the 
 cattle station of the Lancashire and Yorkshire Railway Com- 
 pany, at Liverpool, for conveyance by cattle truck to York. 
 The defendants' servants provided a truck for the purpose, 
 which, to all external appearance, and so far as the servant 
 knew, was sufficient for the purpose. The plaintiff signed a 
 ticket which contained the following memorandum : " This 
 ticket is issued subject to the owners undertaking all risk of 
 conveyance, loading, and unloading, whatsoever ; as the com- 
 pany will not be responsible for any injury or damage (however 
 caused) occurring to live-stock of any description travelling 
 upon the railway or in their vehicles." The truck proved to 
 be insufficient for the carriage of the horses. A hole was 
 made in it on the journey, and the horses were injured. It 
 was held by the Court of Exchequer Chamber, reversing the 
 decision of the Court of Exchequer, first, that the condition 
 that the company " would not be responsible for any injury or 
 damage howsoever caused " was not just and reasonable and 
 therefore void ; secondly, that it did not protect the defendants 
 from liability in respect of the defect in the truck. 3 
 
 Sec. 196. As to signing Contract. — A case in which a 
 
 1 See cases collected in Sugden's shire Rail. Co., 4 H. 4 N. 327; 5 
 
 Vendors and Purchasers, 14th ed., p. Jur. 651 ; 28 L. J. Exch. 353 ; 33 
 
 147. See also, as to the binding effect L. T. 259 Exch. Ch. 
 of an agent's signature, Kirby v. Great a East Tennessee R R. ». Whittle, 
 
 Western Rail. Co., 18 L. T. s. s. 27 Ga. 535. See also Welsh v. Pitts- 
 
 658. burg R. R, 10 Ohio St. 65. 
 
 a M'Manus v, Lancashire & York- 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 259 
 
 plaintiff delivered to a railway company goods which he de- 
 scribed as " furniture," and signed a paper on which under the 
 head " conditions " there was the following note : " No claim 
 for deficiency, damage, or detention will be allowed unless 
 made within three days after the delivery of the goods, nor 
 for loss unless made within seven days of the time they should 
 have been delivered, and that the company will not be answer- 
 able for the loss of any goods which may be untruly or incor- 
 rectly described in the receiving note," — may be referred to, 
 as it bears both upon the question of signing the special con- 
 tract and of what will be considered just and reasonable condi- 
 tions. In this case the plaintiff said, " He was told to sign 
 the pa'per, and he did so. He might have seen the word ' con- 
 ditions,' but he did not read them, and did not know and was 
 not told what they were." One of the packages consisted of 
 a sack of clothes which was not delivered, but no claim was 
 made until more than seven days from the time when the same 
 should have been delivered had elapsed. It was held, first, 
 with regard to the signing, that there was nothing to rebut the 
 presumption arising from the signature of the paper by the 
 plaintiff, that he understood that the contract was subject to 
 the conditions ; and it was held, with regard to what are just 
 and reasonable conditions within the meaning of the Railway 
 and Canal Traffic Act, that the conditions contained in the 
 paper signed by the plaintiff were just and reasonable, and 
 therefore that the company had a defence to the action on the 
 ground that the claim was not made within the seven days 
 specified. 1 There was another point in this case. It was 
 proved that the bag of clothes was misdescribed, and that 
 would have been a defence, the negligence of the plaintiff hav- 
 ing contributed to cause the loss of his goods. 2 
 
 SEC. 197. When Signature not Conclusive Evidence of Con- 
 tract. — But the signature of the individual is not always 
 
 1 A condition that the carrier should to Georgia. Adams Express Co. v. 
 
 not be liable for any loss unless a claim Reagan, 29 Ind. 21. But see Wier v. 
 
 therefor should be presented within Adams Express Co., District Court of 
 
 thirty days after date of the receipt was Philadelphia. 
 
 held to be unreasonable and void in a 2 Lewis v. Great Western Bail. Co., 
 
 contract to carry a valise from Indiana 5 H. & N. 867 ; 29 L. J. Exch. 425. 
 
260 THE LAW OP CARRIERS. 
 
 conclusive evidence that the goods were delivered upon a 
 special contract, the terms of which are expressed or referred 
 to in the paper to which that signature is attached. It is a 
 presumption, and it is liable to be rebutted. In the case just 
 referred to there was no evidence to rebut the presumption. 
 But where an individual delivering goods to a company's ser- 
 vant was asked to sign a paper, and had expressed an unwill- 
 ingness to do so, upon the ground that he could not see to read 
 it, but who, upon being assured by the clerk that it was of no 
 consequence, and that the signature was a mere matter of 
 form, signed it, it was held that there was evidence to show 
 that the goods had not been delivered to the company to be 
 carried under the special contract, the terms of which were 
 contained in the paper signed by the plaintiff. 1 
 
 Sec. 198. Unsigned Contract binding upon Railway or 
 Canal Carrier. — It has been decided that a special contract to 
 carry goods, though not signed by the consignor, is binding 
 upon the railway or canal company by the 7th section of 17 & 
 18 Vict. c. 31, which, as we have seen, 2 provides that no con- 
 tract shall be binding upon the party unless signed by him or 
 the person delivering the goods to be carried. 3 
 
 Sec. 199. What are Just and Reasonable Conditions? — 
 It will be evident, from what has been said above, that it is 
 of much importance to ascertain what general principles have 
 guided our judges in the decision of the question, what condi- 
 tions are just and reasonable ? Unless we can discover that, 
 the 7th section of the Railway and Canal Traffic Act will have 
 done harm rather than good. The elements of uncertainty 
 which exist in legislative enactments are to be removed by the 
 decisions of courts of law. The process is as if laws were, by 
 the legislature, made by contract for humanity, as clothes 
 might be made by contract for a regiment of soldiers. After 
 that has been done, there requires to be a good deal of trying 
 on and adjustment to individual peculiarities of size and shape. 
 So our judges fit the laws to the shape of humanity. Our 
 
 1 Simons t>. Great Western Rail. s Baxendale v. Great Eastern Bail. 
 Co., 2 C. B. n. s. 620. Co., 10 B. & S. 212 Exch. Ch. 
 
 2 Ante, p. 252. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC* 261 
 
 judicial procedure is a process of trying on. The legislature 
 does well to leave, as in this case, much to the discretion of 
 judges ; but the discretion of judges is good for nothing if it 
 cannot discover some general principles, which shall guide 
 their decisions in particular cases'. If they cannot do so with 
 regard to their decisions, how are those whose conduct is to 
 be regulated by law to discover such principles for them- 
 selves ? Even if they could discover such principles, the ad- 
 vantage would not be obvious unless they could calculate with 
 some degree of certainty that a parallel course of reasoning 
 would guide the opinion of the judge. In this instance, what 
 judges have deemed just and reasonable in times past will, as 
 in every other department of case-law, be a guide to those who 
 wish to limit their liability by conditions which will be held 
 to be just and reasonable in time to come. But two cases are 
 very seldom on all fours, and this fact indicates, the necessity 
 that exists to extract from past decisions the principles upon 
 which they were given, that we may have a general rule to 
 guide us in. the ever varying circumstances of life. The diffi- 
 cult question to solve in all these cases is as to the amount of 
 generality which is expedient. The rule may be so general as 
 to be useless, just as it may be so particular as to be practi- 
 cally valueless. We shall, in the first instance, point out 
 what has been held reasonable or unreasonable, just or unjust, 
 in regard to the conditions in various cases, and we shall then 
 be in a position to point out the general grounds of these 
 decisions. 
 
 Sec. 200. Unaccountable for Loss of badly packed Parcels, 
 an Unreasonable Condition. — It has been held that a condi- 
 tion that a railway company will not be accountable for the 
 loss, detention, or damage of any package insufficiently or 
 improperly packed is not a just or a reasonable condition. 1 
 In the same case, as we should have argued from the case of 
 Lewis v. The Great Western Railway Company, 2 it was fur- 
 
 1 Simons v. Great Western Rail. 1234; 30 L. J. Q. B. 273; 9 W. R. 
 
 Co., 18 C. B. 805 ; 26 L. J. C. P. 25 ; 734. 
 
 s. p. Garton v. Bristol & Exeter Rail. 2 5 H. & N. 867 ; 29 L. J. ExcL 
 
 Co., 1 B. & S. 112 ; 7 Jur. v. s. 425 ; ante, p. 259. 
 
262 THE LAW OP CAERIERS. 
 
 ther held that a condition that no claim for damage will be 
 allowed unless made within three days after the delivery of 
 the goods, nor for loss unless made within seven days 
 from the time that they should be delivered, was just and 
 reasonable. 
 
 SEC. 201. Loss of Market. — Delay, however caused. — As 
 to a Horse. — So a condition that a railway company should 
 not be liable for loss of market or other delay arising from 
 detention is a reasonable condition. 1 A condition not to be 
 liable for- delay, however caused, is unreasonable. 2 We have 
 already seen that a condition that a railway company will not 
 be responsible for injury to a case of marbles unless the same 
 are declared according to their value, is not just and reason- 
 able as a condition. 3 And in the case of Wise v. The Great 
 Western Railway Company, 4 the subject came under consid- 
 eration. There a horse was sent by railway, directed to the 
 owner at Eton. The sender signed a document in the follow- 
 ing terms : " Mr. Wise paid for one horse 12s. 6d. Newbury 
 to Windsor. Notice : The directors will not be answerable 
 for damage to any horse conveyed by this railway." 5 The 
 horse arrived in safety at Windsor Station, but the owner not 
 appearing to claim it, it was forgotten and left tied up in a 
 horse-box in an exposed situation for twenty-four hours, and 
 was injured by such neglect. As the condition was held 
 reasonable, the company was held not responsible for the 
 injury done. 6 
 
 Sec. 202. Reasonable Conditions as to Animals. — In 
 the case of Pardington v. South Wales Railway Company, 7 
 
 1 White v. Great Western Rail. Co., 6 But see decision in M'Manus v. 
 2 C. B. n. s. 7 ; 26 L. J. C. P. 158. Lancashire & Yorkshire Bail. Co., 4 H. 
 
 2 Kirby v. Great Western Bail. Co., & N. 327 ; ante, p. 258. 
 
 18 L. T. if. s. 658. See also Allday 6 Even had not the plaintiff been 
 
 v. Great Western Bail. Co., 11 L. T. bound by the special contract which 
 
 Bep. n. s. 267; 34 L. J. 5 Q. B. had been signed for him, the company 
 
 8 Peek v. North Staffordshire Bail, would not have been held responsible, 
 
 Co., 10 H. L. Cas. 473 ; 9 Jur. n. s. as the injury arose from the negligence 
 
 914; 32 L. J. Q. B. 241; 11 W. R. of the owner in not being at the Wind- 
 
 1023 ; 8 L. T. n. s. 768. sor Station to receive the horse. 
 
 4 1 H. & N. 63; 25 L. J. Exch. ' 1 H. & N. 392; 2 Jur. s. s. 
 
 258. 1210; 26 L. J. Exch. 105. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 263 
 
 which was tried a few months after the case we have just re- 
 ferred to (in 1856), a contract containing the following condi- 
 tion (amongst others) was signed by a person sending cattle 
 by the railway of the defendant company. The condition 
 was: "A pass for a drover to ride with his stock will be 
 given. The company is to be held free from all risk in re- 
 spect of any damage arising in the loading or unloading, from 
 suffocation, or from being trampled upon, bruised, or other- 
 wise injured, in transit, from fire, or from any other cause 
 whatsoever." } It appeared that the plaintiff's servant in 
 charge of the cattle received a free pass from the company. 
 He travelled in the same carriage with the guard, and did not 
 get out to look at the cattle during the journey, but on arriv- 
 ing at Gloucester, the destination of the cattle, he heard them 
 making a noise, and found that the lid of one of the vans had 
 become closed, and that of the sixteen oxen in it ten were 
 dead, or dying, from suffocation, and four were very much 
 injured. Some evidence was given to show that the lid could 
 not have become closed by the motion of the train, but must 
 have been purposely shut down by the servants of the railway 
 company. 
 
 Sec. 203. Where Drover went along with Animals. — The 
 learned judge (Alderson, B.) asked the jury whether they 
 thought that the cattle were suffocated during the transit, and, 
 the jury having found that question in the affirmative, he 
 directed a- verdict to be entered for the defendants, giving 
 leave to the plaintiff to move to enter a verdict for 135?., if 
 the court should be of opinion that the conditions were unrea- 
 sonable. The opinion of the Court of Exchequer was, that 
 the ruling of the judge was correct, and that it was quite rea- 
 sonable for the company to make such stipulations as those 
 contained in the special contract set forth above. " The com- 
 pany provided free passes for the drovers, to enable them to 
 go with the cattle for the express purpose of taking care of 
 them. The drover had the means of knowing whether the 
 cattle could travel safely in the carriages provided for them, 
 
 It is a question whether such a v. Lancashire, &o. Rail. Co., ante, p. 
 condition is reasonable. SeeM'Manus 258. 
 
264 THE LAW OP CARRIERS. 
 
 and he had no right to acquiesce in what was done and then 
 throw the responsibility of failure upon the company." 1 It is 
 also reasonable to stipulate that horses shall he carried by the 
 company at the owner's risk. 2 A case sent by a county-court 
 judge for the opinion of the Court of Common Pleas, stated 
 that goods were removed by the railway company (The Lon- 
 don and North- Western) under the following condition con- 
 tained in a note signed by the plaintiff : " Risk-note. London 
 and North-Western Railway Company, Park Lane Station, De- 
 cember 19, 1855. Hay, straw, furniture, glass, marble, china, 
 castings, and other brittle and hazardous articles conveyed at 
 the risk of the owners. Delivered to London and North- 
 western Railway Company from R. C, Dunham, three crates 
 of beef, to be forwarded from Liverpool to London, at owner's 
 risk." 
 
 SEC. 204. Effect of Statutory Provisions. — The court, after 
 stating that the result of the 7th section of the Railway and 
 Canal Traffic Act was, that " A general notice is void, but the 
 company may make special contracts with their customers, 
 provided they are just and reasonable, and signed ; and where- 
 as the monopoly created by the railway companies compels 
 the public to employ them in the conveyance of their goods, 
 the legislature have thought fit to impose the further security 
 that the court shall see that the condition or special contract 
 is just or reasonable," went on to say, that in the case before 
 them, which was referred to them to say whether the condi- 
 tions contained in the risk-note were unjust and unreasonable, 
 it was impossible to come to any conclusion on the point, as 
 they had not been told as to the circumstances under which 
 the contract was made, or what the nature or the reason of 
 the particular risk was. 3 
 
 1 Per Pollock, C. B., Pardington 2 M'Cance v. London & North- 
 v. South Wales Rail. Co., 1 H. & N. Western Rail. Co., 7 H. & N. 477; 
 392. But see some American cases 31 L. J. Exch. 65 ; Gannell v. Tord, 
 on this subject. Smith v. New Haven 5 L. T. n. s. 604 Q. B. ; Harrison v. 
 R. R, 12 Allen, 531 ; Hall v. Renfro, London, Brighton, & South Coast Rail. 
 3 Met.(Ky.)51; Conger v. Hudson Co., 2 B. & S. 122 ; 8Jur. n. s. 740; 
 River R. R„ 6 Duer, 375 ; Harris i>. 31 L. J. Q. B. 113 Exch. Ch. 
 Northern Indiana R.R., 20N.Y. 232; 'Dunham v. London & North- 
 Ohio R. R. v. Dunbar, 20 111. 623. Western Rail. Co., 18 C. B. 826. 
 
LIMITED EBSPONSIBILITY OP COMMON CARRIERS, ETC. 265 
 
 We have, in another place, 1 had occasion to consider the 
 reasonableness of a condition by which a company attempts 
 to limit its liability to loss, or damage, occurring on its own 
 line, when it receives goods to be transmitted to a station 
 beyond the limits of its own plant, but receives no money for 
 the transit of the goods upon the line of the neighbor com- 
 pany ; and in the same place we considered the unreasonable- 
 ness of a condition attempting to exonerate a railway company, 
 under this section, from damage done to packing cases, and 
 the like, when returned as empties. But there are still some 
 other cases which require notice, because of the light they 
 throw upon this question of the reasonableness or unreason- 
 ableness of a condition contained in a special contract. 
 
 Sec. 205. Special Conditions necessitated by Kind of 
 Goods. — Certain kinds of wares naturally necessitate special 
 conditions. And the reasonableness in every case may, to a 
 certain extent, be ascertained by the ordinary experience of 
 mankind. The circumstances of railway construction and 
 traffic necessitate a man to make use of that mode of convey- 
 ance, and generally limit him to the choice of one company. 
 It is well, then, that he should be protected from the power 
 which the position of railway companies with regard to traffic 
 gives them, to exact in a way which would be unjust. The 
 law does this. But it is also to be remembered that these 
 very circumstances necessitate, in some instances, a certain 
 amount of protection to the railway company. 
 
 Sec 206. Perishable Goods. — In the case of very perish- 
 able or fragile goods this may be the case. And, consequently, 
 where a company gave public notice that fish would only be 
 conveyed on their line by special agreement, and by particular 
 trains, and that the sender should sign conditions to the effect 
 ■that the company should not be held responsible, under any 
 circumstances, for loss of market, or for other loss or injury 
 arising from delay, or detention of train, exposure to weather, 
 stowage, or from any cause whatever, other than gross neglect 
 or fraud, the conditions were held just and reasonable. 2 On 
 
 1 Ante, p. 256 ; Aldridge v. Great 2 Beal v. South Devon Rail. Co., 
 Western Rail. Co., 15 C. B. n. s. 3 H. &C.337; 12W.R.1U5; 11 L. 
 582; 33 L. J. C. P. 161. T. s. s. 184; affirming decision of 
 
266 THE LAW OP CARRIERS. 
 
 the other hand, in another case, 1 a condition excluding all 
 risks of conveyance, loading, and unloading whatsoever, upon 
 the ground that the company refused to be responsible for any 
 injury or damage (however caused) occurring to live-stock of 
 any description, was held to be unreasonable. And the facts 
 being that, the truck provided for the conveyance of the plain- 
 tiff's horses being defective, and the horses having in the 
 course of the journey knocked a hole in it, by means of which 
 they injured themselves, the company was held liable for the 
 damage done. Another important decision may be quoted to 
 show in what cases the section of the Railway and Canal 
 Traffic Act, 2 at present under consideration, is applicable. A 
 passenger by the London, Brighton, and South Coast Railway, 
 from London Bridge to Worthing, took with him two horses 
 and a retriever dog ; the horses were put into a horse-box, and 
 a servant of the defendants (the company) proposed that the 
 dog should be placed in the horse-box, to which the plaintiff 
 assented. The dog was fastened by means of a leather collar 
 round its neck, and a strap thereto which passed through a 
 ring fastened to the side of the horse-box. The collar and 
 strap were furnished by the plaintiff, and were his property. 
 The plaintiff's agent signed a ticket which contained the fol- 
 lowing conditions : " The company will not be liable, in any 
 case, for loss or damage to any horse or other animal above 
 the value of 40/., or any dog above the value of 5/., unless a 
 declaration of its value, signed by the owner or his agent at 
 the time of booking the same, has been given to them, and by 
 such declaration the owner shall be bound, the company not 
 being in any event liable to any greater amount than the value 
 so declared. The company will in no case be liable for injury 
 to any horse or other animal, or dog, of whatever value, when 
 such injury arises wholly or partially from fear or restiveness; 
 If the declared value of any horse or other animal exceed 40?., 
 or any dog 51., the price of conveyance will, in addition to the. 
 
 the Exchequer, 4 H. & N. 875 ; 29 L. shire Rail. Co., 4 H. & N. 327 ; 5 Jur. 
 
 J. Exch. 441; 8 W. E. 651 Exch. k. s. 651; 28 L. J. Exch. 353; 3L. 
 
 Oh. J. 259 Exch. Ch. 
 
 1 M'Manus v. Lancashire & York- 2 17 & 18 Vict. c. 31. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 267 
 
 regular fare, be after the rate of 2J per cent, or 6d. in the 
 pound, upon the declared value above 40?. (or 51), whatever 
 may be the amount of such value, and for whatever distance 
 the horse or other animal is to be carried." 
 
 SEC. 207. liability for Negligence. — Excessive Charge. — 
 Misconduct on Part of Company. — The plaintiff made no 
 declaration of the value of the dog, and paid 3s. for the car- 
 riage of it. When the train arrived at Worthing, a window 
 of the horse-box was found open, through which the dog had 
 escaped, and was lost. When this case was before the Court 
 of Queen's Bench, it was held by Cockburn, C. J., and Black- 
 burn, J., that the conditions were not just and reasonable, 
 within the 7th section of the Railway and Canal Traffic Act, 
 in two respects : first, because the meaning of the ticket was 
 that, if the value of the dog exceeded 51., and its value was 
 not declared, the eompany would not be liable for the loss or 
 injury occasioned by their own negligence ; secondly, because 
 in the absence of evidence by the company showing the con- 
 trary, the -extra charge of 2J per cent was excessive, and 
 therefore, the conditions being void, the company were liable as 
 common carriers for the full value of the dog. Wightman, J., 
 on the other hand, held that the meaning of the ticket was, 
 that the company would not, in any case, be liable for loss or 
 damage beyond 51., unless the value was declared, and that 
 this was a reasonable condition ; that the court had no means 
 of knowing whether the extra charge of 2£ per cent was rea- 
 sonable or not, and therefore the plaintiff was not entitled to 
 recover more than 51. 
 
 When the case came before the Court of Exchequer Cham- 
 ber (Erle, C. J., Williams and Keating, JJ., and Chan- 
 nel, B.), the judgment of the Queen's Bench was reversed, and 
 it was held that, assuming section 7 applied to the case, the 
 conditions in the ticket were just and reasonable within that 
 section, because the effect of the first condition was not to 
 exempt the defendants from liability for loss or injury occa- 
 sioned by wilful wrong ; and if it exempted them from any 
 negligence, it was severable, and valid to exempt when there 
 was no negligence, and it lay upon the plaintiff to show that 
 
268 THE LAW OF CARRIERS. 
 
 the extra charge in the third condition was exorbitant or un- 
 fair, and the question whether it was so was for a jury, and 
 not for a court. And further, it was held by Erle, C. J., and 
 Keating, J., that the 7th section of the act was confined to 
 cases in which the loss or injury was occasioned by miscon- 
 duct on the part of the company, and did not apply where it 
 occurred through pure accident. 1 
 
 SEC. 208. Conveyance of Goods by Passenger Trains. — It 
 is usual for railway companies to charge more for transmitting 
 goods by means of a passenger train than for transmitting 
 them by means of an ordinary goods train. This is reasonable. 
 The saving in time to the owner of the goods is often worth a 
 great deal of money. Besides, the trouble to the company of 
 forwarding goods by means of a passenger train is greater than 
 it would be of sending them by means of the trains which are 
 set apart for the conveyance of things rather than men. 
 
 Sec. 209. Alternative Method of Carriage. — In a case 
 where the owner of horses knew that there was a certain rate 
 for carrying horses, in horse-boxes, by a passenger train, and 
 a lower rate for their conveyance by a goods train, in wagons, 
 and he sent his horses by the latter after having signed a 
 declaration that they were carried " at owner's risk," it was 
 held that, as there was an alternative method of carriage, this 
 condition was reasonable. Therefore, it was decided that such 
 a condition, while it would not protect the company in case of 
 a failure to carry in a reasonable time, did protect it in case 
 the horses were injured on the journey. 2 
 
 SEC. 210. Reasonable Regulations by Telegraph Company. 
 — Unrepeated Messages. — Where an act, incorporating a tele- 
 graph company, provided that the public, without preference, 
 should have the use of the company's telegraph, subject to 
 reasonable regulations to be made by the company, it was 
 regarded a reasonable regulation that, when a person wished 
 to transmit a message by the telegraph, a message paper was 
 
 1 Harrison v. London, Brighton, 2 Robinson v. Great Western Kail. 
 
 & South Coast Rail. Co., 2 B. & S. Co., U W. R. 206 ; 1 H. & R. 97; 
 
 122; 8 Jur. n. s. 740; 31 L. J. Q. B. 35 L. J. C. P. 123; 1 L. R. C. P. 
 
 113 ; 6 L. T. n. s. 466 ExcV Ch. 329. 
 
etc. 269 
 
 handed to him for his signature, on the back of which there 
 was a notice that messages of consequence ought to be repeated 
 from the station to which they are addressed, that a higher 
 rate was charged for repeating messages, and that the com- 
 pany would not be responsible for mistakes in the transmission 
 of unrepeated messages. It was held that the company was 
 not liable for the consequences of mistakes in unrepeated mes- 
 sages, and that, even had this regulation not been authorized 
 as a reasonable regulation under the act, it was such a limita- 
 tion as the company, in their character as common carriers, 
 was entitled to create by notice to their customers. 1 In this 
 latter aspect the case has already been considered, 2 but, as 
 showing what is a reasonable condition, it is not unworthy of 
 consideration in its present connection. 
 
 Sec. 211. Company cannot free itself from all Risk. — As- 
 sumption of Risk by Owner. — It cannot be doubted that 
 where a company tries, by notice attached to their cattle-ticket, 
 to free itself from all risk with respect to any loss or damage 
 arising in the loading or unloading, or injury in the transit 
 from any cause whatever, — where it endeavors to do this by 
 the agreement with the owner, that he shall have all the risk, 
 and see to the efficiency of the wagons before his cattle are 
 placed therein, and that in case of insufficiency, complaint must 
 be made in writing to the company's office before the wagon 
 leaves the station, such an attempt will not succeed, and such 
 conditions will be held neither just nor reasonable. 3 But from 
 
 1 M'Andrew v. Electric Telegraph even if brought home to the party, 
 Co., 17 C. B. 3 ; 1 Jur. h. s. 1073 ; will afford no evidence of such a con- 
 25 L. J. C. P. 26. tract ; and A having declared against 
 
 2 Ante, p. 228. B, as a common carrier, in a case 
 a Gregory v. West Midland Rail, where B was a private carrier under a 
 
 Co., 2 H. & C. 944 ; 10 Jur. u. s. special contract, the question whether 
 
 243 ; 33 L. J. Exch. 155 ; 12 W. R. such contract was made was purely 
 
 528. In Kimball v. Rutland, &e. R. one of law. When, by special con- 
 
 B. Co., 26 Vt. 247, it was held that tract, the relation is changed from 
 
 a common carrier may, by special that of common carriers to private 
 
 contract with the owner of property, carriers, an action must be brought 
 
 become a private carrier, and his liabil- on the contract, or for a breach of 
 
 ities will be measured by the contract ; duty, and not against them as common 
 
 but a general notice to the public, carriers. Where a railroad company 
 
270 
 
 THE LAW OF CARRIERS. 
 
 what has been said above, it must not be understood that the 
 owner can, under no circumstances, assume the risk and re- 
 
 offered to become common carriers for 
 a giveu hire, and, for a less sum, 
 offered to furnish cars, motive power, 
 &c, that the owner might be his own 
 carrier, and assume the risk, it was 
 held that the plaintiff who elected to 
 pay the lower rate was bound by his 
 election, and could not hold the com- 
 pany as common carriers, for damage ; 
 and that, pro hue vice, the railroad 
 company were private carriers merely. 
 In all cases, in order that a special 
 contract limiting the carrier's liability 
 may be operative, it must be just and 
 reasonable ; and a contract that relieves 
 him from the consequences of his own 
 gross negligence, or that of his ser- 
 vants or agents, is treated as unreason- 
 able and void, as being opposed to the 
 policy of the law. The rule is, that 
 any limitation allowed to be imposed 
 by common carriers upon their liabil- 
 ity must be restricted to their liability 
 as insurers. The carrier cannot im- 
 pose a limitation which will protect 
 him from responsibility for loss arising 
 from his own want of care, or the 
 negligence of his servants. Evans- 
 ville, &c. R. R. Co. v. Young, 28 
 Ind. 516 ; Kallman v. V. S. Express 
 Co., 3 Kan. 205 ; Southern Express 
 Co. v. Moon, 39 Miss. 822; Ashmore 
 v. Pennsylvania, &c. Co., 28 N. J. L. 
 (4 Dutch.) 180 ; Dorr v. N. J. Steam 
 Nav. Co., 4 Sandf. (N. Y.) 136 ; Sted- 
 man v. Western Trans. Co., 48 Barb. 
 (N. Y.) 97; Davidson v. Graham, 2 
 Ohio St. 131 ; Seller v. Pacific, 1 Oreg. 
 409 ; Pennsylvania R. R. Co. v, Mc- 
 Closky, 23 Pa. St. 526 ; Pamham v. 
 Camden, &c. R. R. Co., 55 Pa. St. 53 ; 
 American Express Co. v. Sands, 55 
 Pa. St. 140 ; Pennsylvania R. R. Co. 
 v. Butler, 57 Pa. St. 335. 
 In Farmers, &c. Bank v. Champlain 
 
 Transportation Co., 23 Vt. 186, the de- 
 fendants, a corporation, were common 
 carriers upon Lake Champlain, and 
 their charter extended to the carrying 
 of all goods, wares, and merchandise, 
 and "all other articles and things usu- 
 ally transported by water" on that 
 lake : and it appeared that bank-bills 
 were usually carried by the water craft 
 upon that lake, at the time the cor- 
 poration received their charter and 
 went into operation ; and it was held 
 that the defendant's powers, as a cor- 
 poration, extended to the carrying of 
 bank-bills, but that the charter did not 
 of necessity constitute them common 
 carriers of bank-bills, so as to preclude 
 them from the right of declining to 
 assume the risk of carrying such arti- 
 cles, if they so elected. And it is not 
 necessary, in such case, to show, by 
 positive proof, that the company con- 
 sented that the captain of their boat 
 should carry money on their account, 
 in order to hold the company responsi- 
 ble for the loss of the money. The 
 captain of the boat is to be regarded 
 as the general agent of the owners; 
 and, prima facie, the owners are liable 
 for all contracts for carrying, made by 
 the captain or other general agent for 
 that purpose, within the powers of the 
 owners themselves; and the burden 
 rests upon them to show that the 
 plaintiffs had made a private contract 
 with the captain, which it was under- 
 stood should be kept from the knowl- 
 edge of the defendants, or else had 
 given credit exclusively to the captain. 
 The mere fact, in such case, that the 
 captain was, by the company, permitted 
 to take the perquisites for carrying 
 such parcels, will not be sufficient to 
 exonerate the company from liability. 
 Their suffering him to continue to 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 271 
 
 sponsibility of the transit of his goods. In many cases it 
 might be much more convenient for the owner to insure his 
 own goods, and have them sent by the railway company at a 
 lower rate. The question of ready money is sometimes more 
 important to a man than that of security. If the legislature 
 forced security upon a man, it would do much evil. Law 
 must still allow freedom for the exercise of prudence or specu- 
 lation. This is actually what the law does.- Thus we have 
 seen that the House of Lords, in the case of Peek v. The North 
 Staffordshire Railway Company, 1 recognized the doctrine that 
 
 carry bank-bills ought to be regarded 
 as fixing their responsibility, and the 
 allowing him to take the perquisites 
 as a mere arrangement among them- 
 selves. But it is not competent, for 
 the plaintiff, in order to charge the 
 company with the loss of a package 
 of bank-bills, to prove by his agent, 
 who delivered the package to the cap- 
 tain of the boat, that he intended to 
 intrust the money to the captain in 
 his official capacity, and not in his 
 private capacity, — without evidence 
 that this was in some way made appar- 
 ent at the time. 
 
 A common carrier may, by his ex- 
 press contract, limit his common-law 
 responsibility; but a mere general 
 notice, when brought to the knowledge 
 of the owner of the goods carried, 
 will not have that effect unless there 
 is very clear proof that the owner 
 expressly assented to that, as forming 
 the basis of the contract. But a car- 
 rier may, by general notice brought to 
 the knowledge of the owner of the 
 goods, limit his responsibility for car- 
 rying certain commodities beyond the 
 line of his general business, or he may 
 make his responsibility depend upon 
 certain reasonable conditions. When 
 a common carrier, by steamboat or 
 other vessel, in the due and common 
 course of his business, delivers his 
 goods, or parcels, into the custody of 
 the wharfinger, upon the wharf, the 
 
 transit is ended, and his responsibility 
 as carrier ceases, unless he have, either 
 expressly or by fair implication, under- 
 taken to do something more; and 
 the question, as to the time and place, 
 when the duty of the carrier euds, is 
 one of contract, to be determined by 
 the jury from a consideration of all 
 that was said by either party, at the 
 time of the delivery and acceptance of 
 the parcels by the carrier, the course 
 of the business, the practice of the 
 carrier, and all other attending cir- 
 cumstances, the same as any other 
 contract, in order to determine the 
 intention of the parties. 
 
 Upon the trial, in 18471 of an action 
 against a common carrier to recover 
 the value of goods lost, the plaintiff 
 offered in evidence a printed advertise- 
 ment, issued by the defendants in 1839, 
 a portion of which had been acciden- 
 tally torn and lost; and it appearing 
 that search had been made by the 
 plaintiff, at the places in the vicinity 
 at which copies of the advertisement 
 had been posted by the defendants, for 
 another copy, without success, it was 
 held that the part produced might be 
 read in evidence, and parol evidence 
 given as to the contents of the part 
 which had been lost. 
 
 1 10 H. L. Cas. 473 ; 9 Jur. n. s. 
 914; 32 L. J. Q. B. 214; 11 W. R. 
 1023. 
 
272 THE LAW OF CARKIEKS. 
 
 it is reasonable for a railway company to have two modes of 
 carriage, — one by which they take a great responsibility, and 
 carry by horse-boxes, and another by which they carry at a 
 cheaper rate, but at a greater risk to the bailor; and we 
 have seen that this doctrine was expressly confirmed by the 
 Court of Common Pleas in a case which has been considered 
 above. 1 
 
 SEC. 212. Delay caused by Negligence. — In another case 
 this question was considered, — in Allday v. The Great West- 
 ern Railway Company, 2 where it appeared that the defendants 
 had issued a consignment note for the carriage of cattle from 
 Oxford to Birmingham, one of the conditions of which was, 
 " The company are not to be amenable for any consequences 
 arising from detention or delay in or in relation to the convey- 
 ing of the said animals, however caused." This condition was 
 held unreasonable, although it appeared that the rate charged 
 for carriage had been reduced bejow that ordinarily demanded. 
 Cockburn, C. J., in refusing the rule, said : " Is that contract 
 reasonable ? Certainly not ; for it is not merely that the com- 
 pany will not be responsible for delay, not only from over- 
 carriage generally, and not limited to accidental circumstances 
 independent of delay caused by the company, but they claim 
 absolute immunity from all injury arising from delay caused 
 by their own negligence. This I take to be an unreasonable 
 condition, unless something appears which might make it in- 
 equitable in the sender to seek to exact from them the full 
 extent of the ordinary carrier's liability. Suppose a company 
 say, ' We are entitled to charge a certain rate of carriage ; if 
 so, of course they are liable to the liability of common carriers. 
 But then this company say, 'We make this special contract; 
 we will carry these animals for a lower price if you will release 
 us from the liability attached to carriers, and will take your 
 chance of goods arriving at their destination.' If a man enters 
 into such a contract as that, it is unreasonable to say that he 
 is not bound by it. But although the expression 'reduced 
 
 1 Robinson v. Great Western Rail. 2 5 B. & S. 903 ; 34 L. J. Q- B. 
 Co., 14 W. R. 206 ; 1 H. & R. 97 ; 5 ; 11 Jur. n. s. 12 ; 11 L. T. M. s. 
 35 L. J. C. P. 123 ; 1 L. R. C. P. 329. 267. 
 
LIMITED RESPONSIBILITY OF COMMON CARRIERS, ETC. 273 
 
 charges ' occurs in this contract, it does not appear to have 
 been used with reference to a greater rate, by which the sender 
 might have gained additional security." 1 With reference to 
 the second proviso in this section, it has been decided that it 
 will protect a railway company against liability for the carriage 
 of animals, although no complete contract for the carriage of 
 the animals has been entered into, and no complete delivery 
 of it has taken place. Its protective power arises if the animal 
 was in the course of being delivered to or received by the 
 company. 2 
 
 Sec 213. "Proper Vice" of Animals. — In reference to the 
 common-law liability of carriers as insurers, a case of consider- 
 able importance has recently been decided. Just as the fact 
 that man's intelligence introduces #n element into the contract 
 of a carrier who undertakes his conveyance, which was not to 
 be considered in the case of the carriage of inanimate goods, 
 so it has been held that the anunacy of live animals must be a 
 reason for a modification of the contract of insurance entered 
 into by a carrier who conveys them. If a carrier has packed 
 goods intrusted to him, which of their own nature will spoil 
 before the journey can be completed, he is certainly not to be 
 regarded as having insured against this inevitable circum- 
 stance. Insurance has to do with possibilities, not with cer- 
 tainties. Now, the principle which applies to the inherent 
 nature of goods has been extended to the " proper vice " of 
 animals. The case in which this was done was that of Kendal 
 v. The London and South-Western Eailway Company. 3 It 
 appeared that the plaintiff booked his horse from Waterloo 
 Station to Ewell, signing a note on the counterfoil of his 
 ticket. 
 
 Sec. 214. Condition. — The conditions on the ticket were, 
 that the company would not be responsible for any injury or 
 
 1 See also Lloyd v. Waterford & 1054 ; 10 L. T. N. s. 609. Affirmed 
 Limeriek Rail. Co., 15 Ir. C. L. R. on appeal, 13 W. R. 758; 35 L. J. 
 37 ; 9 L. T. jr. s. 89 Q. B. Q. B. 85 Exch Ch. 
 
 2 Hodgman v. West Midland Rail. 8 Reported in The Times for June 
 Co., 5 B. & S. 173 ; 10 Jur. n. s. 12, 1872 ; Law Times, June 15, 
 673; 33 L. J. Q. B. 233; 12 W. R. 1872. 
 
 18 
 
274 THE LAW OP CAREIEES. 
 
 damage to any horse in the receiving, forwarding, or delivering 
 thereof, if such injury or damage were occasioned by the kick- 
 ing, plunging, or unruliness of the same. The horse was 
 placed in a box by one of the defendants' porters, the saddle 
 remaining on, and the stirrups being allowed to hang down. 
 The box was placed at the extreme end of the train. On the 
 horse's arrival at Ewell, he was found to be much frightened 
 and greatly cut about, more especially about the forearms and 
 fetlock joints. The plaintiff sued the company for the damage 
 occasioned to his horse, and the case was tried before Baron 
 Martin, at Guildhall. 
 
 Sec. 215. Whether Railway Company an Insurer of Live 
 Animals. — It was admitted that the defendants had been guilty 
 of no negligence, and the ppint involved was, whether the de- 
 fendants are insurers for the safety of live animals intrusted 
 to their care, as they are in the case of inanimate goods. The 
 defendants called some stud-grooms to show that the sending 
 of a riding-horse saddled and with the stirrups hanging down 
 was the best mode of carrying him ; and it appeared that this 
 mode of conveying saddle-horses was general with railway 
 companies. The verdict was entered for the plaintiff for 39Z., 
 the question of liability being reserved for the full court, who 
 were to have power to draw inferences of fact. 
 
 SEC. 216. Company not Liable for Injury caused by "Proper 
 Vice." — Defendants' Negligence. — BRAMWELL, B., said: "No 
 doubt the horse was the immediate cause of its own injuries, 
 i. e. no person got into the box and injured it. It slipped, or 
 fell, or kicked, or plunged, or in some way hurt itself. If it 
 did so from no cause other than its inherent propensities, ' its 
 proper vice,' — that is, from fright, or temper, or struggling 
 to keep its legs, — the defendants are not liable. But if it so 
 hurt itself from the defendants' negligence, or any misfortune 
 happening to the train, though not through any negligence of 
 the defendants, as, for instance, from the horse-box leaving the 
 line through some obstruction maliciously laid upon it, then 
 the defendants would, as insurers, be liable. If perishable 
 articles, say soft fruits, are damaged by their own weight and 
 the inevitable shaking of the carriage, they are injured through 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 275 
 
 their own intrinsic qualities. If through pressure of other 
 goods carried with thern, or by an extraordinary shock or 
 shaking, whether through negligence or not, the carrier is 
 liable. 
 
 Sec. 217. Burden of Proof. — " Since this judgment was 
 agreed upon, the case of The Great Western Railway v. Blower 
 has been decided in the Common Pleas to this effect. Now, it 
 might be a question on whom, in such a case as the present, 
 the burden of proof lay ; but in the actual case each gave evi- 
 dence. The defendants' witnesses stated that the train pro- 
 ceeded without disturbance or interruption, and that there was 
 nothing to excite the horse to do what he did to his own 
 damage — no cause for the mischief except his own inherent 
 disposition. If this is so, the defendants are not liable. On 
 the other hand, the plaintiff's witnesses proved the horse was 
 quiet, used to railway travelling, and therefore, they say, there 
 must have been something extraordinary to excite the animal. 
 This is a question of fact properly for a jury, but referred to 
 us. If I am to decide it, I find for the defendants. The evi- 
 dence of the plaintiff's witnesses renders it improbable that 
 it was the ' proper vice ' of the horse. The evidence of the 
 defendants makes it impossible it was otherwise. It will be 
 observed I take no notice of the saddle and stirrups being on 
 the horse, as described. First, I am satisfied they were not 
 the exeiting cause of the mischief ; secondly, it appears it was 
 proper to carry the horse so caparisoned ; and if so, and if this 
 horse was affrighted by their being there, it was his own inher- 
 ent and peculiar disposition that made him so — ' his proper 
 vice.' At all events, I cannot find for the plaintiff on this 
 ground. I cannot trace the injury to this cause. Nor do I 
 notice the special conditions, because I understand the learned 
 judge who tried the cause to report that the defendants did 
 not show that the damage arose thus. For these reasons I 
 think the rule ought to be made absolute." 
 
 Sec. 218. The Law of Carriers. — Martin, B., concurred. 
 Pigott, B., differed in opinion from his learned brothers, — 
 " The court is to draw inferences of facts, and I infer (there 
 being no negligence on either side) that the animal either was 
 
276 THE LAW OP CARRIERS. 
 
 thrown or got down in the box, or in struggling to get up again 
 received the injuries in question. In my opinion, the cut on 
 the forearm was caused by its lying on the stirrup, and the 
 injuries on the hocks and fetlocks by struggling and kicking 
 on the floor of the box, the result of some accident or casualty, 
 without evidence to show how caused. The law of carriers, I 
 apprehend, is clearly this, — that, in the absence of any special 
 contract, they undertake to carry safely, and they insure 
 against, and bear the risks of, all casualties of the transit, 
 except such as result from the vis major, i: e. acts of nature, 
 otherwise termed acts of God and of the Queen's enemies,— 
 and that since the case of M'Manus v. The Lancashire and 
 Yorkshire Railway Company, 1 there is, in this respect, no dis- 
 tinction between live and other ordinary merchandise. The 
 present case," said his lordship, " is thus reduced to one of onus 
 of proof; and upon whom is such onus cast, for it can be 
 but pure speculation how this particular mischief occurred ? 
 There may have been an accidental jerk at a curve of the line, 
 or a jolt of the train by sudden stoppage ; or, on the other 
 hand, possibly (though there is no evidence of it) the animal 
 itself may have been the cause of its own injuries by some in- 
 trinsic propensity of its own nature. In this state of things 
 it seems to me only reasonable that the carrier, who has sole 
 control of the article, and who alone can know what has 
 occurred, and certainly has the means of knowing, which the 
 sender of the goods has not, should, if he rely upon any excep- 
 tion to his common-law liability, show by affirmative proof that 
 the case is brought within the exception. This the defendants 
 have failed to do, and their liability to insure against a cas- 
 ualty of the journey is unremoved. Therefore, I think, the 
 plaintiff is entitled to recover." 2 
 
 SEC. 219. Inferences from these Decisions. — Reasonable- 
 ness. — The majority of the court being in favor of the com- 
 pany, the rule was made absolute. The inferences to be drawn 
 
 1 4 H. & N. 327- ' Wis. 80; Evansville, &c. R. R. Co. 
 
 2 Clarke v. Rochester & Syracuse v. Young, 28 Ind. 516 ; Ballentine v. 
 R. R. Co., 14 N. Y. (4 Keman) 570; North Missouri R. R. Co., 40 Mo. 
 Betts v. Farmers' Loan, &c. Co., 21 491. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 277 
 
 from these cases, notwithstanding the difference of opinion 
 that took place in reference to several of them, 1 with regard 
 to what conditions will be regarded as just and reasonable, 
 seem to be, that the ordinary principles which would guide 
 the conduct of mankind have been applied to the several sets of 
 circumstances which have come before the courts, — that the 
 word "reasonableness," as it will be applied by a court or 
 judge, before whom any cause is brought involving a question 
 with regard to a special contract between a bailor and a car- 
 rier, will not be interpreted technically, but that what ordinary 
 men would deem to be a reasonable condition under the cir- 
 cumstances will be deemed a reasonable condition by the court. 
 This, looking at the function of a court of law, and having 
 regard to the way in which our courts of law have been con- 
 stituted, is exactly what we should have been led to expect. 
 That law gives only an authority to certain principles which 
 had operated on people's practice long before the existence of 
 the law, is surely true. In this sense laws may be said to 
 bind society even antecedent to their expression. And 'when 
 the question is one of interpretation of an express enactment, 
 as it was in this case, judges must endeavor to anticipate the 
 interpretation which will be put upon the enactment by the 
 ordinary human beings who have to live under it as a law. 
 Our written laws are, in the truest sense, not creations, but 
 observations. 
 
 SEC. 220. Railway or Canal Company cannot free itself 
 from Consequences of Negligence. — The results then seem to 
 be, that general conditions and special conditions, by which a 
 railway or canal company endeavors to divest itself from all 
 responsibility for wilful or gross negligence, are void, on the 
 ground of their unreasonableness. 2 It was evidently not the 
 
 1 Peek v. North Staffordshire Rail. 2 Indianapolis, &e. R. R. Co. v. 
 
 Co. (see ante, pp. 253, 262) ; Harri- Allen, 31 Ind. 394 ; Michigan, &o. 
 
 son v. London, Brighton, & South R. R. Co. v. Heaton, 31 Ind. 397 ; 
 
 Coast RaiL Co., and Hodgman v. West The Express Co. v. Kountze, 8 Wall. 
 
 Midland Rail. Co., ante, p. 273 ; Har- 342 ; Simon v. The Fung Shuey, 21 
 
 rison v. London & South Coast Rail. La. Ann. 363 ; Lamb v. Camden, &o. 
 
 Co., 2 B. & S. 122. R. R. Co., 2 Daly (N. Y.), 454. And 
 
 see cases cited pp. 191-205. 
 
278 THE LAW OP CARRIERS. 
 
 intention of the legislature, when it enacted the 7th section of 
 the Railway and Canal Traffic Act, 1854, which has been so 
 severely criticised in our courts of law, 1 to encourage anv 
 negligence upon the part of railway and canal companies, — it 
 was rather, as we have seen, to protect the public from being 
 injuriously affected by notices, which they may never actually 
 have seen, and, at the same time, to leave parties free to enter 
 into express contracts with carriers for the transmission of 
 their goods. 
 
 Sec. 221. Reason of Proviso. — The fact that, as traffic is 
 at present constituted, railway companies have a monopoly of 
 the trade of carrying to given places, and that it is scarcely 
 within the power of a man in business to refuse to employ 
 them, made the legislature introduce the proviso that all con- 
 ditions contained in such special contracts should be just and 
 reasonable, and that if they were not it should be void. The 
 law is for the protection of the weak, and the bailor is, in so 
 far as he wishes to have goods transmitted by railway or canal 
 companies, weak, by reason of their strength derived from this 
 system of monopoly. These being, doubtless, the reasons of 
 the legislative action in this matter, it behooved the judges, 
 when they were called upon to say what was to be regarded as 
 just and reasonable, to follow the dictates which were to be 
 gathered from a consideration of the thoughts and opinions of 
 mankind as to justice and reasonableness. This they have, for 
 the most part, done. 
 
 SEC". 222. Sufficient Declaration of Value. — One other 
 question arises in connection with the 7th section of this act, 2 
 and that is as to what will constitute a sufficient declaration 
 of value upon the part of the sender of the goods. It is evident 
 that, as the declaration of value was meant to be with a view 
 to the insurance of the goods, to be sufficient it must be made 
 with the intention upon the part of the sender that it shall be 
 understood ^as made with the view to insurance. 3 
 
 1 Cockbton, C. J., 29 L. J. 215 Q. 2 17 & 18 Vict. c. 31. 
 
 B. ; Jervis, C. J., 26 L. J. 32 C. P. ; s Robinson v. London & Soutli- 
 
 Loed Campbell, C. J., 27 L. J. 474 Western Rail. Co., 19 C. B. u. s. 51; 
 
 Q. B. 11 Jur. n. s. 390; 34 L. J. C. P. 234. 
 
LIMITED EESPONSIBILITY OF COMMON CARRIERS, ETC. 279 
 
 Sec. 223. Casual statements. — A mere casual statement 
 of value will not be sufficient. So, where an individual was 
 sending a horse by railway, the value of which was known by 
 the company on' whose line it was to be conveyed, through a 
 telegram sent from the seller to the buyer, the company refus- 
 ing to carry it without insurance, the owner wrote the follow- 
 ing letter, and the question was whether he had given notice 
 within the 17 & 18 Vict. c. 31, § 7 : " If the man who goes 
 for the mare finds that she is dangerous in the train, or if he 
 finds that she has been in before, and anything has happened 
 to her through her own vice, then I think she ought to be 
 insured, but not otherwise. Mr. Ayling, the man I bought 
 her of, told me she never had been in the train in her life. I 
 have had horses of 300Z. and 400Z. value often by train, with 
 nobody with them ; I never insured a horse in my life, and 
 never had an accident with one. It appears to me that your 
 station-master at Liss is exceeding his powers. The value of 
 this animal is 135Z." That was held to be no declaration of 
 value. 1 
 
 Sec. 224. Personal Risk of Carrier. — One subject deserves 
 attention before we turn from a consideration of the limitation 
 of the carrier's responsibility. The carrier is, as we have 
 seen, exposed to considerable risk of pecuniary loss by the very 
 nature of his employment, as that nature has been defined by 
 the common law, but a carrier may in some cases be exposed 
 to personal risk in the pursuance of his calling. Many of the 
 goods which he may be called upon to convey from place to 
 place may, from their very nature, expose him to imminent 
 peril. 
 
 SEC. 225. Goods of a Dangerous Nature. — The 105th Sec- 
 tion of the Railway Clauses Consolidation Act 2 enacts, that 
 " no person shall be entitled to carry, or to require the com- 
 pany to carry, upon the railway, any aquafortis, oil of vitriol, 
 
 1 See also M'Cance v. London & limitation of value, see Harrison v. 
 
 North-Western Hail. Co., 3 H. & 0. London, Brighton, & South Coast 
 
 343 ; 34 L. J. Bxch. 39. Affirming Rail. Co., 29 L. J. Q. B. 209 ; 2 B. & 
 
 decision in the Exchequer, 7 H. & N. S. 122. 
 477 ; 10 W. R. 154. With regard to 2 8 Vict. c. 20. 
 
280 THE LAW OP CARRIERS. 
 
 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 dis- 
 tinctly marking their nature on the outside of the package 
 containing the same, or otherwise giving notice in writing to the 
 book-keeper or other, servant of the company with whom 
 the same are left, at the time of so sending, he shall forfeit to 
 the company twenty pounds for every such offence ; and it shall 
 be lawful for the company to refuse to take any parcel that 
 they may suspect to contain goods of a dangerous nature, or 
 require the same to be opened to ascertain the fact." * Thus 
 we see another statutory limitation of the liability of a com- 
 mon carrier. To protect the carrier from such risks, an Act 
 of Parliament was passed in 1866, which made it necessary 
 that dangerous goods — such as nitro-glycerine or glonoine oil 
 — should be marked as dangerous by the person delivering 
 them to the carrier, and that notice should be given to the 
 carrier of the nature of the goods. And it also enacted that 
 no carrier (which the act defined as " all persons or bodies of 
 persons carrying goods or passengers for hire by land or 
 water") shall be bound to carry goods which are specially 
 dangerous. 2 The principle involved in this statute is evidently 
 just and reasonable. In the first place, experience of such 
 materials has shown that the risks attendant upon their 
 conveyance are very great, and consequently, to avoid as 
 far as possible accidents through their agency, due notice 
 ought obviously to be given to the carrier whose life, without 
 such notice, would be seriously endangered. But, in the 
 second place, the difficulty of safely conveying such materials 
 is so great, and the precautions which must be taken to pre- 
 vent explosion are so many, that very few carriers, who are in 
 an ordinary business, could easily undertake the conveyance 
 of such goods ; and all these circumstances combine to show 
 
 1 See Crouch v. London & North- 2 29 & 30 Vict. c. 69. See also 
 
 Western Railway, 14 C. B. 255 ; 23 American law as to this subject, Act 
 
 L. J. 73 C. B ■, 2 Car. & Kir. 389 ; of July 3, 1866, 14 Stat, at Large, 81, 
 
 Johnson v. Midland Railway, 4 Exch. and sec. 3. 
 367 ; 18 L. J. 366 Exch. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 281 
 
 that, with regard to such specially dangerous goods, the com- 
 mon-law duty to carry should not devolve upon the carrier, 
 and that the legislature has done well to limit their liability 
 in that direction. 
 
 Sec. 226. Liability of Owner who does not declare Danger- 
 ous Character of Goods. — One or two cases will serve to show 
 the duties of the carrier in relation to goods, the conveyance 
 of which is attended with danger. It has been decided that 
 one who employs to carry an article of such a dangerous 
 nature as to require extraordinary care in its conveyance, 
 must communicate the fact to the carrier, or he will be respon- 
 sible for any injury which may result to the carrier or his 
 servants from his omission to do so. Thus, where a person 
 caused a carboy containing nitric acid to be delivered to a ser- 
 vant of a carrier, in order that it might be conveyed by such 
 carrier for him to Croydon, and he did not take reasonable 
 care to make the servant aware that the acid was dangerous, 
 but only informed him that it was an acid, and the servant 
 was burned and injured by reason of the carboy bursting 
 whilst, in ignorance of its dangerous character, he was carry- 
 ing it on his back from the carrier's cart, it was held that the 
 sender was liable" to the servant in an action for damages for 
 such injury. 1 In giving judgment in that case, Brle, C. J., 
 said : " It was the duty of the defendant, who knew the dan- 
 ger, to take care that the dangerous character of the article 
 should be made known to all persons who were to be con- 
 cerned in it." And in another case Lord Ellenborough 
 remarked : " In order to make the putting on board wrongful, 
 the defendants must be conversant of the dangerous quality 
 of .the article put on board ; and if, being so, they yet give 
 no notice, considering the probable danger thereby occasioned 
 to the lives of those on board, it amounts to- a delinquency in 
 the persons concerned in so putting such dangerous articles 
 on board, for which they are criminally liable as for a 
 misdemeanor at least." 2 
 
 1 Fan-ant v. Barnes, 11 C. B. n. s. 2 East, 192; Hutchinson v. Guion, 
 
 553 ; 8 Jur. sr. s. 868 ; 31 L. J. C. P. V. C. B. 149. 
 
 137 ; Brass v. Maitland, 6 E. & B. 470 ; 2 Williams v. The East India Com- 
 
 Williams v. The East India Company, pany, 2 East, 192. 
 
282 THE LAW OP CARRIERS. 
 
 Sec. 227. Rule in Hearne v. Garton. — The case of Hearne 
 v. Garton 1 is also in point. There it was proved that a rail- 
 way act enacted that every person who should send or cause 
 to be sent by the railway any vitriol, or other goods of a dan- 
 gerous quality, should distinctly mark or state the nature of 
 the goods on the outside of the package, or give notice in 
 writing to the servant of the company with whom the same 
 were left at the time of sending, on the pain of forfeiting 10Z. 
 for every default, or being imprisoned. It was held that the 
 act made the sending of dangerous goods, without notice, a 
 criminal offence, and that, therefore, a guilty knowledge on 
 the part of the sender was necessary to render him liable 
 under the act. The facts were these. The respondents re- 
 ceived from N. some cases containing vitriol, and sent them 
 by the railway. The nature of the goods was not marked on 
 the packages, or known to the respondents when they received 
 the packages. N., in answer to an inquiry by the respondents, 
 informed them that the cases contained gun-stocks and other 
 goods of a harmless nature, and respondents so described 
 them in the receiving note sent by them with the goods to the 
 railway, in which note they described themselves as the con- 
 signors. It was held on these facts that, as the respondents 
 had been misled by N. as to the nature of the goods, and had 
 no guilty knowledge of their dangerous character, they were 
 not liable as senders of the goods within the meaning of the 
 act, although they would have been civilly liable to the com- 
 pany for any damage arising from the sending. 2 
 
 Sec. 228. Carrier's Right to know the Character of the Goods. 
 — We have already inquired into the principles which are 
 involved in the right which a carrier has in certain cases to 
 know the contents of the parcels which are delivered to him 
 to -be carried. 3 All these principles are arguments in this 
 
 1 2 El. & El. 66 ; 5 Jur. n. s. 648 ; portions of the ship's cargo, 17 & 18 
 28 L. J. M. C. 16 ; 33 L. T. 256. Vict. c. 104, § 329. 
 
 2 See, as to the right which masters s Ante, p. 210 ; and see Walker v. 
 and owners of ships have to refuse to Jackson, 10 M. & W. 161 ; Crouch v. 
 carry goods of such a nature as would London & North- Western Rail. Co., 
 endanger the safety of the ship in 14 C. B. 255; Rail. Cas. 717 ; 2 C. S. 
 which they are to be carried, or other R. 188. 
 
LIMITED RESPONSIBILITY OP COMMON CARRIERS, ETC. 283 
 
 place ior the necessity of a clear and distinct notice upon the 
 part of the sender of the nature of the goods sent, if that is of 
 a dangerous character. But in the latter case not only the 
 considerations of expediency as to the combination of the two 
 trades of a carrier and an insurer, but considerations of the 
 higher expediency of the safety of human life, make sueh a 
 disclosure absolutely necessary. There can be little doubt of 
 the excellence of these modifications in the common-law 
 liability of carriers. 1 
 
 The 12th section of the Regulation of Railways Act, 1871, 2 
 enacts that, " where a railway company, under a contract for 
 carrying persons, animals, or goods, by sea, procures the same 
 to be carried in a vessel not belonging to the railway company, 
 the railway company shall be answerable in damages in respect 
 of loss of life, or personal injury ; or in respect of loss of, or 
 damage to, animals or goods, in like manner, and to the same 
 amount as the railway company would be answerable if the 
 vessel had belonged to the railway company, provided that 
 such loss of life, or personal injury, or loss or damage to ani- 
 mals or goods happens to the person, animals, or goods (as 
 the case may be) during the carriage of the same, the proof 
 of the contrary to be upon the railway company." 
 
 1 As to this subject generally, see 18 L. T. n. s. 658 ; Peper v. South- 
 Martin v. Great India Peninsula Rail. Eastern Rail. Co., 17 L. T. u. s. 469. 
 Co., 3 L. R. Exck. 9 ; 37 L. J. Exch. 2 34 & 35 Vict. c. 78. 
 27 ; Kirby v. Great Western Rail. Co., 
 
284 
 
 THE LAW OP CARRIERS. 
 
 CHAPTER VIII. 
 
 ON DELIVERY AND NON-DELIVERY. 
 
 Sec. 229. 
 
 Arrangement of Subjects. 
 
 Sec. 259. 
 
 230. 
 
 Duty of Carrier to deliver, 
 
 260. 
 
 
 What amounts to. — Where 
 
 261. 
 
 
 Delivery must be made. 
 
 262. 
 
 231. 
 
 When Carrier's Responsibility 
 
 263. 
 
 
 ceases, Question for Jury. 
 
 264. 
 
 232. 
 
 Delivery within Reasonable 
 
 265. 
 
 
 Time. 
 
 266. 
 
 233. 
 
 Delay occasioned by Act of God. 
 — Recovery of Expenses. 
 
 267. 
 
 234. 
 
 Loss of Profit. 
 
 268. 
 
 235. 
 
 Delivery must take Place as 
 Early as Possible. 
 
 269. 
 
 236. 
 
 Delivery at Reasonable Time 
 and Proper Place. 
 
 270. 
 
 237. 
 
 Proper Time. 
 
 271. 
 
 238. 
 
 The Manner of Delivery. 
 
 
 239. 
 
 Merchant Shipping Act. 
 
 272. 
 
 240. 
 
 Proper Place of Delivery. 
 
 273. 
 
 241. 
 
 Liability for Misdelivery. 
 
 
 242. 
 
 What constitutes Delivery. 
 
 274. 
 
 243. 
 
 Delivery at House of Consignee. 
 
 275. 
 
 244. 
 
 Confirmation of Decision. 
 
 276. 
 
 245. 
 
 Return of Parcel to Consignor. 
 
 
 246. 
 
 Carrier's Duty when Consignee 
 
 277. 
 
 
 refuses to accept. 
 
 278. 
 
 247. 
 
 Duties of Carrier as Bailee. 
 
 279. 
 
 248. 
 
 When Liability ceases. 
 
 280. 
 
 249. 
 
 Loss in Warehouse. 
 
 
 250. 
 
 When Warehousing is Part of 
 
 
 
 Carrier's Duty. 
 
 281. 
 
 251. 
 
 Modification of Duty of De- 
 
 282. 
 
 
 livery.. 
 
 283. 
 
 252. 
 
 Other Modifications of Duty. 
 
 284. 
 
 253. 
 
 Due Notice of Arrival, Duty of 
 
 
 
 Carrier to give. 
 
 285. 
 
 254. 
 
 Construction of Bill of Lading. 
 
 
 255. 
 
 Delivery of Passengers' Lug- 
 gage. 
 
 286. 
 
 256. 
 
 Continuance of Duty. 
 
 287. 
 
 257. 
 
 Modification of Carriers' Duty. 
 
 
 258. 
 
 When Delivery takes Place. 
 
 
 Claim of Passenger. 
 
 Delivery to Person. 
 
 Delivery to Consignee's Agent. 
 
 Delivery to Right Person. 
 
 Misdelivery. 
 
 Duty with respect to Delivery. 
 
 Proof of Non-delivery. 
 
 When Non-delivery is excused. 
 
 Countermand by Consignor, 
 when it may be made. 
 
 Carrier's Compliance. 
 
 Delivery at Place appointed by 
 Consignee. 
 
 Non-delivery by Order of Con- 
 signee. 
 
 Duty discharged by Payment 
 of Damages. 
 
 Claim of Ownership. 
 
 Carrier cannot dispute Bailor's 
 Title. 
 
 General Rule. 
 
 Bailee's Situation. 
 
 Bona fide Delivery of Goods 
 not belonging to Bailor. 
 
 Rule in White v. Bartlett. 
 
 Carrier's Position. 
 
 1 & 2 Vict. c. 58. 
 
 Stoppage in Transitu, what it 
 is. — What terminates Jour- 
 ney. 
 
 Right of Stoppage in Transitu. 
 
 To whom Notice must be given. 
 
 Constructive Possession. 
 
 Possession by marking or tak- 
 ing Possession. 
 
 Action against Carrier for refus- 
 ing to give up Goods. 
 Completed Delivery ends Right 
 
 to stop in Transitu. 
 Possession of Goods by Con- 
 
 Sec 229. Arrangement of Subjects. — The natural course 
 of the transaction has determined our method of dealing with 
 
ON DELIVERY AND NON-DELIVERY. 285 
 
 it. The simplest form of narrative is that which follows the 
 course of events. And, with a view to simplicity and clear- 
 ness, we have treated of the various duties of a carrier in the 
 order in which they arise in any work that he may, in pursu- 
 ance of his public calling, undertake. With that view we 
 devoted our attention in the first instance to the duty which 
 is imposed upon the carrier, by the common law to receive 
 goods that are delivered to him. We then considered his 
 responsibility with regard to the goods when they were in 
 his possession, and showed that here, too, the law had imposed 
 a duty upon the carrier, — that of becoming an insurer with 
 regard to the goods that were intrusted to him, — and that that 
 fact necessitated that he should carry goods safely and securely 
 at all events, except the loss or injury was caused by an inex- 
 orable event of nature's production, or by loss through the 
 interposition of the queen's enemies. At that stage it was 
 natural to consider how that duty could be modified at the 
 will of the parties, and how it had been modified by legislative 
 enactment. So far we have followed the progress of the cir- 
 cumstances in any transaction between a bailor and a carrier, 
 and we are now in a position to consider the third duty which 
 devolves upon a carrier, and that is, the duty to deliver the 
 goods which have been placed in his hands for that purpose. 1 
 
 Sec. 230. Duty of Carrier to deliver, What amounts to. — 
 Where Delivery must be made. — It is his duty not only to 
 carry, but it is his duty to deliver. 2 It is a part of the peculiar 
 bailment which constitutes the contract into which a carrier 
 enters. It is evident that the delivery is to be made at the 
 place directed by the consignor of the goods; and it would 
 seem just and reasonable that, even should that place be 
 
 1 Forward v. Pittard, 1 T. R. 27 ; Shenk v. Philadelphia Steam Propeller 
 Garside v. Trent Navigation Co., 4 T. Co., 60 Penn. St. 109 ; Harris v. Rand, 
 R. 581; Hyde v. Trent Navigation 4N. H.259; Eagle v. "White, 6 Whart. 
 Co., 5 T. R. 389. (Penn.) 505; Gibson v. Culver, 19 
 
 2 The Mary "Washington, 1 Abb. Wend. (N. Y.) 305 ; Ludwig«.Meyre, 
 (U. S. C. C.) 1 ; Solomon v. Phila- 5 "W. & S. (Penn.) 434 ; Erskine v. 
 delphia Steamboat Co., 2 Daly (N. Y. Thames, 6 Miss. 371 ; Parker v. Flagg, 
 C P.), 104; Lamb v. Camden, &c. 26 Me. 181. 
 
 R. R. Co., 2 Daly (N. Y. C. P.), 454; 
 
286 
 
 THE LAW OP CARRIERS. 
 
 beyond the ordinary limits of the carrier's operations, he is 
 still bound, having undertaken the work, to see it carried out. 
 He would not, in the first instance, have been necessitated to 
 receive the goods for conveyance. His duty to receive ia 
 defined by his usual custom, and by the public knowledge of 
 that custom ; his duty to deliver, by the general course of his 
 trade. 1 It would be absurd to make a man who travelled to 
 and fro between London and Oxford undertake the carriage 
 of goods which were to be forwarded to Birmingham ; but if 
 such a carrier, without any special understanding between 
 himself and the consignor, undertook such a duty, he would be 
 bound to deliver the goods at their destination. 2 Formerly, 
 when goods were transported by land, with teams, it was held 
 to be the duty of carriers, unless a contrary usage had been 
 established, to deliver freight to the consignee personally at 
 his residence or place of business, according to the circum- 
 stances; 3 and such is still the rule as to that class of carriers 4 
 and express companies. 5 But the carrier may show a well- 
 
 1 Golden v. Manning, 2 W. Bl. 916 ; 
 3 Wils. 429 ; Baltimore, &c. R. R. Co. 
 v. Sclramaker, 29 Md. 176. 
 
 2 Duff v. Budd, 6 Moore, 469 ; 3 
 B. & B. 177 ; Morse v. Brainard, 41 
 Vt. 550; Tuckerman v. Stephens, &c. 
 Transp. Co., 32 N. J. L. 320; Balti- 
 more, &c. R. R. Co. v. Green, 25 Md. 
 72 ; Mosher v. Southern Express Co., 
 38 Ga. 37; Southern Express Co. v. 
 Shea, 38 Ga. 519. 
 
 8 Storr v. Crowley, 1 McC. & Y. 
 129; Gibson v. Culver, 17 Wend. 
 (N. Y.) 305 ; Fisk b. Newton, 1 Den. 
 (N. Y.) 45 ; Hemphill v. Chenie, 6 W. 
 & S. (Penn.) 62. 
 
 4 Gibson v. Culver, ante; Sohroeder 
 r. Hudson River R. R. Co., 5 Duer 
 (N. Y.), 55 ; Eagle v. "White, 6 Whart. 
 (Penn.) 605. 
 
 6 American Union Express Co. v. 
 Robinson, 72 Penn. St. 274; Baldwin 
 v, American Express Co., 23 111. 197 ; 
 Witbeck v. Holland, 45 N. Y. 13; 
 Southern Express Co. v. Armstead, 50 
 
 Ala. 350; American Express Co. ». 
 Wolf, 79 HI. 430 ; Packard ». Earle, 11 3 
 Mass. 280; American Union Express 
 Co. v. Schier, 55 El. 140; Sullivan v. 
 Thompson, 99 Mass. 259 ; Marshall v. 
 American Express Co., 7 Wis. 1. But 
 this rule may be changed by usage, 
 in localities where the business is so 
 small as to render it impracticable for 
 them to keep a messenger, in which 
 case they may absolve themselves by 
 giving notice to the consignee. Bald- 
 win v. American Express Co., ante; 
 Haslam v. Adams Express Co., 6 
 Bosw. (N. Y. Superior Ct.) 235 ; Gul- 
 liver v. Adams Express Co., 38 111. 
 503. And where the business at a place 
 on its line is too small to warrant the 
 employment of an agent, it may show 
 a usage to deliver packages addressed 
 to persons at that point to the station 
 agent, and if such usage is established 
 it absolves it from liability. Sullivan 
 v. Thompson, ante. And even a usage 
 to leave goods at a station with notice 
 
ON DELIVERY AND NON-DELIVERY. 287 
 
 established usage to deliver at a certain place, and if such 
 usage is sufficiently uniform and notorious to raise a presump- 
 tion that the shipper knew or ought to have known of it, 
 he is discharged from his liability as a common carrier by a 
 delivery at such place. 1 But in reference to vessels and rail- 
 roads, a different rule is held, and, unless a different usage is 
 established, they are only bound to deliver at their wharves 
 or warehouses at the place of destination, and, after having 
 given the consignee notice of their arrival, and the lapse of a 
 reasonable time for the consignee to take them away, their 
 liability as common carriers ceases, and they are only liable 
 as warehousemen for the goods. 2 It is as much a part of the 
 contract of shipment that the owner or consignee of freight 
 shall be ready at the place of destination to receive the goods, 
 upon reasonable notice of their arrival, as that the carrier 
 shall transport them. But if the carrier undertakes to deliver 
 to his own agent instead of to the owner, he becomes liable as 
 a warehouseman therefor after the arrival of the goods. 3 If 
 the goods arrive upon Sunday or upon a legal holiday, the 
 owner is not bound to take them away upon that day, but is 
 entitled to a reasonable time after that day, in which to take 
 them away. 4 But if he begins to take goods away which 
 arrived before such day, but leaves the balance until the day 
 after such holiday, and they are burned, the carrier is not 
 responsible therefor unless such fire was occasioned by his 
 negligence. 6 In the case last cited a ship was ready to dis- 
 charge, and, the consignees being notified, she began to 
 discharge on Monday. The consignee took the freight away 
 
 to the consignee, if known to the con- Barb. (N. Y.) 612 ; affirmed, 20 N. Y. 
 
 signor, is sufficient. Packard v. Earle, 259 ; Rowland v. Miln, 2 Hilt. (N. Y. 
 
 113 Mass. 280. C. P.) 150; Dean v. Vaccaro, 2 Head 
 
 1 Loveland v. Burke, 120 Mass. (Term.), 288 ; Schales v. Ackerland, 15 
 139; P. & M. Bank v. Champlain 111.474. 
 
 Transportation Co., 23 Vt. 186 ; Van 8 Alabama, &c. R. R. Co. v. Kidd, 
 
 Santvoord v. St. John, 6 Hill (N. Y.), ante. 
 
 157 ; Houston v. Peters, 1 Met. (Ky.) * Russell Manufacturing Co. v. 
 
 558 ; Broadwell v. Butler, 6 McLean New Haven Steamboat Co., 50 N. Y 
 
 (U. S.), 296. 121. 
 
 2 Alabama, &c. R. R. Co. v. Kidd, 6 -Richardson v. Goddard, 23 How. 
 35 Ala. 209; Gould v. Chapin, 10 (U. S.) 28. 
 
288 THE LAW OF CARRIERS. 
 
 up to Wednesday night, leaving then a few bales on the wharf. 
 Thursday was the annual fast-day appointed by the governor. 
 During the forenoon of that day more cargo was unloaded, 
 and in the afternoon all that was on the wharf was burned. 
 The plaintiff claimed to hold the defendant responsible as a 
 common carrier for the cotton burned upon the wharf, because 
 Thursday was a day upon which by law he was not required 
 or expected to perform any labor. The court held that 
 although the consignee might refrain from labor upon that 
 day, yet be did it at his own risk, and could not compel the 
 carrier to refrain from delivering the goods where there is ho 
 statute forbidding labor upon such day, or custom compelling 
 the carrier to observe such day, and that the carrier's liability 
 as a common carrier ceased when the goods were placed upon 
 the wharf and the consignee had had a reasonable time in which 
 to take them away. But the carrier must, in the absence of 
 any contract or local usage to the contrary, not only notify 
 the consignee that the goods will be delivered at a certain 
 wharf at a certain time, but also, if he is not at the place to 
 receive them, the carrier should not leave them exposed on 
 the wharf, but should store them for and on account of the 
 owner. 1 The rule may be said to be, that, in order to relieve 
 
 1 Rowland v. Miln, 2 Hilt. (N. Y. line named will not accept them, then 
 C. P.) 150 v Where the distance on a the carrier may exercise his discretion, 
 railroad over which a commodity was Thus, where goods were shipped by 
 carried was very short, and the con- the defendants' line to a point beyond 
 signee lived sixteen miles from the their line with instructions to ship 
 road, aud no agent was present to them from that point by the P. line, 
 receive it on its arrival, it was held and the P. line refused to accept them, 
 that the depositing of the commodity and the defendants, upon the refusal of 
 in the company's warehouse at the the P. line, held the goods as forward- 
 point of delivery exonerated it from ers without any direction as to lines, it 
 the liabilities of a common carrier, and was held that it was their duty to ex- 
 that it was thenceforth only bound as ercise their discretion and select the 
 a warehouseman. Hilliard v. Wilming- best that presented and was reason- 
 ton, &c. R. R. Co., 6 Jones (N. C.) ably safe ; that the established usage 
 L. 343. If goods are shipped upon and course of business should govern 
 a railroad to a point beyond the first their actions ; and that, having for- 
 carrier's line, and directions are given warded the goods by the customary 
 as to the line by which they shall be method, they were not liable for their 
 shipped from that point, the carrier loss. Johnson v. New York, &c. R. R- 
 should obey such directions; but if the Co., 31 Barb. (N. Y.) 196. A carrier 
 
ON DELIVERY AND NON-DELIVERY. 
 
 289 
 
 the owners of vessels from responsibility, there must be a 
 delivery on the wharf to some person authorized to receive 
 the goods, or some act must be done, which is an equivalent 
 to a delivery, and that, in order to constitute a delivery, there 
 must be a notice given to the consignee, and a reasonable 
 time given him to make the usual and necessary preparations 
 to receive the goods. The manner of delivering the goods, 
 and consequently the period at which the responsibility of the 
 master and owners will cease, depend upon the custom of 
 the particular place and the usages of the particular trade, 1 or 
 between the parties. Thus, in a Wisconsin case, 2 it was held 
 
 gave a receipt for goods directed to a 
 point beyond his route, and informed 
 the shipper that the goods would be 
 forwarded from the end of liis route. 
 Held, upon the evidence, that there 
 was no agreement to carry to the des- 
 tination, and that the liability of the 
 carrier ended with his route. Dillon 
 v. New York, &c. R. R. Co., 1 Hilt. 
 (N. I. C. P.) 231. . Goods came by 
 rail, were deposited on the platform in 
 the usual place ready for delivery, the 
 consignee notified thereof, and he paid 
 the freight. Held, that the liability of 
 the railroad as carriers was thereby at 
 an end, and even if the delivery and 
 acceptance were not complete by the 
 payment of freight and the lapse of a 
 reasonable time for removal, yet that 
 the liability of the railroad was there- 
 after only that of warehousemen, and 
 as the goods were destroyed by fire 
 without negligence on the part of the 
 company, the owner must bear the 
 loss. New Albany, &c. R. R. Co. v. 
 Campbell, 12 Ind. 55. Carriers by 
 railroads, or steamboats engaged in the 
 internal coasting and river trade, in 
 the absence of a contract for a par- 
 ticular mode of delivery, must deliver 
 freight received by them to the owner, 
 consignee, or some authorized agent, 
 or safely land it upon the wharf at the 
 place of destination, or deposit it in 
 
 their depot houses, aud promptly notify 
 the consignee. If delivered to a dray- 
 man, cartman, or any other person not 
 authorized by the consignee to receive 
 it, it is at the risk of the carrier. The 
 usage or custom of a port cannot dis- 
 pense with delivery, or notice of the 
 landing of the goods ; nor will the fact 
 that the consignee and others bad sub- 
 mitted to a delivery of goods to a 
 drayman before, when no loss occurred, 
 bind him to yield his legal right to 
 notice when it is for his interest to 
 assert it. Dean v. Vaccaro, 2 Head 
 (Tenn.), 488. The carrier of goods by 
 railway is not bound to seek out the 
 consignee and make an offer to deliver 
 them. It is the business of the con- 
 signee to repair to the depot to receive 
 the goods, and if the carrier refuse to 
 deliver them without valid excuse, an 
 action will lie. The fact that some of 
 the goods have been damaged in their 
 transit does not authorize the con- 
 signee to reject the goods entirely and 
 hold the carrier liable as for a total 
 loss; neither does it devolve on the 
 carrier any obligation to make an offer 
 to deliver, otherwise than as if the 
 goods had arrived uninjured. Michi- 
 gan, &c. R. R. Co. v. Bivens, 13 Ind. 
 263. 
 
 1 Sleade v. Payne, 14 La. Ann. 453. 
 
 " Marshall v. Wells, 7 Wis. 1. 
 
 19 
 
290 THE LAW OF CARRIERS. 
 
 that as between a consignee (a bank) and an express company 
 in the habit of carrying their packages, it is competent for the 
 carrier to prove that after banking-hours the bank is closed 
 only as to banking business, and not as to the reception of 
 packages, but that the latter have habitually been received on 
 the arrival of the trains after " banking-hours," and, that fact 
 being proved, a tender of the package to the bank, an hour and 
 a half after banking-hours, at half-past five o'clock, p. m., in sum- 
 mer, is a good and reasonable tender ; and that even in the 
 absence of such proof, "banking-hours" are established only 
 for banking business, and that such a tender, made to the 
 agents then present in the usual discharge of their duties, 
 is good. It was also held, even though it is the duty of 
 the expressman, under those circumstances, to make such a 
 tender, that after a proper tender made, the carrier is liable 
 only for gross negligence. 
 
 SEC. 231. When Carrier's Responsibility ceases, Question 
 for Jury. — Whenever delivery has taken place, the responsi-. 
 bility of the carrier for the goods ceases ; but, in order that 
 he may free himself from the responsibility, he must deliver 
 the goods as they were intended to be delivered. The ad- 
 dress will be a sufficient guide as to the intention 1 of the 
 bailor, and if the carrier deliver the parcel at a place to which 
 it is not addressed, an action of trover lies against him. 2 
 But other circumstances must be considered before we can 
 say definitely what will constitute a competent delivery, and 
 in that way terminate the responsibility of the carrier. As 
 might have been anticipated, this is, in many cases, a ques- 
 tion rather for the jury than for the court. 3 
 
 SEC. 232. Delivery within Reasonable Time. — Other duties 
 with regard to delivery, however, devolve upon a carrier. 
 
 1 Stephenson v. Hart, 1 M. & P. v. Johnson, 5 Burr. 2825. See also 
 357 ; 4 Bing. 676. See Add. on Con. Bonney v. The Huntress, 4 Hunt's 
 810 Merch. Mag. (Jan. 1841) 83; The 
 
 2 Perkins v. Smith, 1 Wils. 328 
 Youl v. Harbottle, Peake, N. P. C. 68 
 Devereux v. Barclay, 2 B. & A. 702 
 Stephens v. Elwall, 4 14 8," 
 
 Ben Adams, 2 Ben. (U. S. C. C.) 445; 
 Meyer v. Chicago, &c. R. R. Co., 24 
 Wis. 586. 
 
 8 See Hedges v. Hudson River K 
 
 and, as distinguished from these f Ross R. Co., 6 Robt. (N. Y.) 119. 
 
ON DELIVERY AND NON-DELIVERY. • 5291 
 
 The place is not only a matter of importance, but the time 
 is an element of the contract. Goods are not delivered to 
 a carrier that he may deliver them at his own good pleasure, 
 but that he may deliver them in such time as, looking at the 
 length of his ordinary journey, the mode of the conveyance, 
 and the circumstances of which the bailor might be cognizant 
 before he intrusted his goods, shall be deemed reasonable. 1 
 In a case where the defendants received goods to be carried 
 from London to Seaham Harbor, near Sunderland, and sent 
 them ..by Newcastle instead of by Sunderland, it was held that 
 they had not fulfilled the obligation to carry goods by the 
 usual route professed by them. 2 And as there was a consid- 
 erable delay in forwarding the goods from Newcastle, it was 
 held that they had violated another obligation, which arises 
 in the absence of any express contract, and that is, to deliver 
 within reasonable time. 3 
 
 Sec. 233. Delay occasioned by Act of God. — It would, 
 however, be unfair to hold that the carrier had violated any 
 duty in regard to the time of delivery, if the delay was proved 
 to be occasioned by the act of God or by the enemies of the 
 country of the carrier. The loss of the goods by any casualty 
 which can be classed under either of these heads would not 
 make him liable as an insurer i to the owner, and the loss of 
 time arising in the same way should not subject him to any 
 liability for a breach of his duty to deliver in a reasonable 
 time. Indeed, the expression " reasonable time " might sug- 
 gest the impossibility of imputing a delay thus occasioned to 
 the carrier as a ground for recovery of any loss suffered by the 
 owner of the goods. It would appear, therefore, that the ques- 
 tion as to what will be considered a reasonable time is to be 
 looked at in relation to all the circumstances of the case, — 
 the weather, the state of the roads, the season of the year, 
 and other matters of a like sort, might be considered with a 
 view to a satisfactory answer. 6 Thus, .where the defendants, 
 
 1 Hughes v. Great Western Rail. 8 2 B. & S. 66. 
 
 Co., 14 C. B. 637; 2 C. L. R. 1360; * Ante, pp. 164-173. 
 
 Raphael v. Pickford, 6 Scott, N. R. « Briddou v. Great Northern Rail. 
 
 478 ; 5 M. & G. 558. Co., 28 L. J. Exch. 51 ; Broadwell v. 
 
 2 But see, per Tindal, C. J., Davis Butler, 6 McLean (U. S.), 296; 1 
 v. Garrett, 6 Bing. 725. Newb. 171. 
 
292 THE LAW OP CARRIERS. 
 
 a railway company, were prevented, by an unavoidable ob- 
 struction on tbeir line, from carrying the plaintiff's goods 
 within the usual (a reasonable) time, — the obstruction hav- 
 ing been caused solely by the negligence of another company 
 who had running-powers over their line, — the defendants were 
 held not to be liable to the plaintiff for damage to his goods 
 caused by the delay. 1 While, therefore, it is the carrier's 
 duty to convey goods by means of the ordinary route, and 
 without any unnecessary delay, both these duties may be 
 obviated by the circumstances, and where either delay or 
 deviation is necessary for the safety of the goods, it will 
 be held to have been a part of the primary duty of the 
 carrier. 2 It is the carrier's duty to deliver the goods to the 
 consignee upon his presenting himself in reasonable time and 
 at a proper place to receive them. If the consignee does this, 
 or until he has had an opportunity to do so, there seems to be 
 no good, ground for reducing the liability of the carrier to that 
 of a warehouseman. 3 The rule may perhaps be better stated 
 to be, that the liability of a carrier as such, continues until 
 the goods are ready to be delivered at their place of destination, 
 and the consignee has had a reasonable opportunity, during the 
 hours when such goods are usually delivered, in which to exam- 
 ine them so far as to judge of their outward appearance, and to 
 remove themt As to what constitutes a reasonable opportu- 
 
 1 Taylor v. Great Northern Rail, water for the loss of twelve bales of 
 Co., 1 L. It. C. P. 385. cotton which were transported by them 
 
 2 Davis v. Garrett, 6 Bing. 725. from New York to Hartford. The 
 8 Graves v. Hartford, &c. Steam- steamer which carried the cotton to 
 
 boat Co., 38 Conn. 143 ; Tindal, Hartford arrived, and on the day of 
 
 C. J., in Gatliffe v. Bourne, 4 Bing. arrival notice was sent to the plaintiff 
 
 333. that the cotton was on the boat at the 
 
 4 Shenk v. Philadelphia Steam wharf in Hartford. The notice was 
 
 Propeller Co., 60 Penn. St. 109 ; The sent between 8.30 and 9 o'clock in the 
 
 . Mary Washington, 1 Abb. (U. S.) 1 ; forenoon, and at about 11.30 of the 
 
 Lamb v. Camden, &c. B. B. Co., 2 same forenoon the plaintiff's cartmen 
 
 Daly (N. Y. C. P.), 454; Solomon i>. arrived at the boat with a team and 
 
 Philadelphia Steamboat, &c. Co., 2 assistants to help load the cotton, when 
 
 Dnly (N. Y. C. P.), 104. In Graves they were told by the defendants that 
 
 v. Hartford, &c. Steamboat Co., ante, it was not off the boat, and that there 
 
 an action was brought against the was so much freight, and it was so far 
 
 defendants as common carriers by back in the boat, that they could not 
 
ON DELIVERY AND NON-DELIVERY. 
 
 293 
 
 nity, it may be said that no reference is to be had to the pecu- 
 liar circumstances of the consignee, but is such as would give 
 
 get at it. The carmen then went to 
 dinner, and between 12.30 and 1 o'clock 
 of the same day started again for the 
 cotton. The defendants' warehouse 
 and freight upon the' dock were then 
 
 The defendants had a commodious 
 warehouse, with suitable and con- 
 venient open and covered platforms, 
 situated upon their wharf, for the 
 reception, delivery, and storage of 
 freight transported by them ; and 
 freight-owners were accustomed to 
 receive their freight from the plat- 
 forms, the company leaving their freight 
 on the platforms during the day, for 
 convenience of delivery, and at night 
 removing it into their warehouse, 
 where it was stored without charge till 
 called for. The plaintiffs' consignee 
 had been accustomed to receive goods 
 from the warehouse and platform. 
 The cotton was discharged from the 
 steamer between 11 and 12 o'clock, 
 and placed on the platform in front 
 of defendants' warehouse, at a place 
 where, in the usual course of business, 
 that kind of freight was usually de- 
 posited for delivery, at which place it 
 remained in waiting until about 1 
 o'clock, when the warehouse took fire 
 without fault of the defendants, and 
 the cotton was mostly consumed. 
 
 The judge was requested by the 
 plaintiffs' counsel to charge the jury 
 that " the defendants' responsibility as 
 carriers continued until the goods had 
 been landed at the usual wharf, and 
 notice. given to the consignee, and the 
 goods had been kept safely a sufficient 
 time to give the consignee reasonable 
 access to them to examine them, and 
 reasonable time to remove them." 
 The judge refused such instruction, 
 and charged them as follows : " There 
 
 is but one question in this case for you 
 to determine. It is this. Was the 
 cotton deposited by the defendants 
 upon their wharf in Hartford ? A 
 common carrier making known and 
 regular transits, and having a ware- 
 house and platforms for the delivery 
 of goods at the end of the transit, is 
 discharged from liability as a carrier 
 on placing the goods either on such 
 platform or in such warehouse, for 
 delivery to the owner or consignee, 
 and thenceforth is only a warehouse- 
 man. If the jury shall find that in 
 this case the defendants had provided 
 a proper platform and warehouse at 
 the end of their route for the delivery 
 of freight, and ill the usual course of 
 business were accustomed to deliver 
 goods on such platform, storing them 
 in their warehouse only in case they 
 were not called for during the day, or 
 within a reasonable time, then the 
 defendants would not be liable as 
 common carriers for any goods safely 
 discharged from their boat and de- 
 posited on said platform for delivery 
 to the consignee." A verdict was had 
 for the defendants, but upon appeal it 
 was set aside; Seymour; J., saying: 
 
 " The decisions of courts upon the 
 questions involved in this case are 
 conflicting, and we shall not attempt 
 to marshal them and decide upon their 
 weight. The authorities are so divided 
 that we feel at liberty to decide the 
 case upon our views of its merits, and 
 of the principles which ought to 
 govern it. The receipt given by the 
 defendants does not attempt to spe- 
 cially define their duties. It simply 
 acknowledges that the goods are re- 
 ceived by the boat for W. I\ Willard, 
 agent, Hartford. It is of course to be 
 construed in reference to the defend- 
 
294 
 
 THE LAW OP CARRIERS. 
 
 to a person residing in the vicinity of the place of delivery 
 and informed of the usual course of the business, and of the 
 
 ants' mode of transportation, which 
 being by water, their duty, so far as 
 the carriage of the goods is concerned, 
 is limited by that mode of conveyance. 
 They are not required, as carriers by 
 wagon under a like receipt would be, 
 to seek the consignee on the' land and 
 make delivery at his place of business. 
 The usual course of business of car- 
 riers by water, in general, and of the 
 defendants in particular, may properly 
 be referred to in giving a construction 
 to the writing. The defendants made 
 regular trips, and had their platforms 
 and warehouses upon a wharf of their 
 own in Hartford, where they were 
 accustomed to deliver, and where con- 
 signees were accustomed to receive, 
 their goods. Upon these facts the de- 
 fendants claimed, and the plaintiffs 
 conceded, that the wharf and platforms 
 were the proper places of delivery. 
 But the plaintiffs claimed, upon the 
 fair and reasonable construction of the 
 receipt, in connection with the admitted 
 facts, that, if the consignee presents 
 himself to receive his goods at the 
 proper place and in proper time, the 
 defendants are bound as common car- 
 riers to deliver the goods to him, and 
 that in such a case the delivery to 
 the consignee is a clear duty belonging 
 to the defendants as common carriers 
 under their contract. We think the 
 plaintiffs are right in this proposition, 
 and that, if the consignee is on hand 
 in proper time and at the proper place, 
 there is no room, nor any occasion, for 
 the interposition of a warehouseman. 
 
 " We are not certain that the judge's 
 charge to the jury was intended to 
 apply to the case where the consignee 
 is present and ready to take his con- 
 signment ; but his language is general, 
 and in terms is applicable to such a 
 
 case. He says: 'A carrier making 
 known and regular transits, and having 
 a warehouse and platform for the de- 
 livery of goods at the end of the tran- 
 sit, is discharged from liability as a 
 carrier on placing such goods either 
 on such platform, or in such ware- 
 house, for delivery to the owner and 
 consignee, and thenceforth is only a 
 warehouseman.' This charge, as ap- 
 plied to a case where the consignee or 
 his agent is present to receive Lis 
 goods, is, we think, clearly erroneous. 
 In such case it is the duty of the de- 
 fendants not only to place the goods 
 on the platform 'for delivery' hut it 
 is their duty to make delivery, and that 
 duty pertains to them as carriers. 
 The parties have entered into only one 
 contract, and that is a contract by the 
 defendants as common carriers, and 
 the contract cannot be changed to one 
 of warehousemen, unless the plaintiffs, 
 by neglect to be present to take their 
 goods, make the interposition of the 
 relation of warehousemen necessary. 
 The placing the goods on the platform 
 in the manner these defendants are 
 accustomed to do, is rather a prepara- 
 tory step toward a delivery, than in 
 itself a delivery. The transfer of the 
 possession and custody of the goods 
 to the consignee is regarded as an im- 
 portant part of the duty of the carrier. 
 During this transfer the goods are 
 pointed out and selected, and their 
 condition is examined in the presence 
 of both parties, that it may be seen 
 whether they have come safely, with- 
 out injury or depredation. The goods 
 are usually placed upon the platform 
 for the mere convenience of the car- 
 rier, and are there assorted and ar- 
 ranged by him before he is ready to 
 commence delivery. And, surely, until 
 
ON DELIVERY AND NON-DELIVERY. 
 
 295 
 
 time when the goods are expected to arrive, suitable oppor- 
 tunity within the usual business hours, to take them away. 1 
 
 the consignee can get his goods, they 
 must be regarded as in the defendants' 
 possession as carriers. Cases were 
 cited by counsel to show that, in some 
 instances, delivery to a wharfinger or 
 warehouseman has been held to be a 
 good substitute for delivery to the 
 owner. But this is only in cases 
 where the owner has failed to come in 
 due time to take the goods himself. 
 If he thus fails, then indeed the car- 
 rier discharges his duty by leaving 
 the goods with a warehouseman for 
 the owner. But it is only because the 
 owner is not ready to take his prop- 
 erty that it may be left in a warehouse 
 for him. 
 
 "But the case in the court below 
 does not appear to have been tried 
 upon the precise question thus far dis- 
 cussed. The plaintiffs did not put 
 themselves upon the ground that their 
 carman was actually present and wait- 
 ing for the goods at the time of the 
 fire, but on the broader ground that 
 he used due diligence to get his goods, 
 and that he was entitled to a reason- 
 able time after their arrival to take 
 them away, and that the defendants 
 remained chargeable as common car- 
 riers until such reasonable time had 
 expired. And the important point 
 still remains to be considered, whether 
 the plaintiffs are or are not correct in 
 this broader claim. We have already 
 said that, in our judgment, the con- 
 signees are entitled to receive their 
 goods from the defendants as common 
 carriers, if they present themselves at 
 the proper place and at the proper 
 time for that purpose. The point now 
 to be considered is, what is that proper 
 time. In order to avail themselves of 
 their rights in this respect, must the 
 
 consignees be on hand immediately on 
 the arrival of the boat, and remain 
 there constantly, without beiug absent 
 even for their meals, until their goods 
 are ready, and must they then imme- 
 diately take them, or is a reasonable 
 time to be allowed. for these purposes? 
 We suppose it is generally more con- 
 venient for the carrier that there should 
 be no rush immediately upon his ar- 
 rival. We suppose it is more con- 
 venient for him that he should examine 
 and arrange his lading, and compare it 
 with his bills, and place it in order on 
 his platform, before he commences to 
 deliver goods to consignees. Where 
 the amount of freight is large, and for 
 a large number of persons, it is not 
 unreasonable for the carrier to refuse 
 to commence the delivery until the 
 steamer is unladen, and the goods 
 properly arranged for the owners. 
 And, this being so, it seems to us that 
 consignees should also be allowed a 
 reasonable time to take away their 
 goods, so that they shall not be sub- 
 jected to vexatious and irritating delays 
 and waste of time in waiting for their 
 turns. It is for the interest and con- 
 venience of both parties that the de- 
 livery should be deliberate, in order 
 that mistakes may be avoided, and that 
 the goods may be subjected to a care- 
 ful examination, that it may be known 
 whether the carrier has or has not 
 carefully and properly discharged his 
 duty in the transportation. In cases 
 where the carrier has no warehouse or 
 conveniences for keeping the goods, he 
 may properly require that the con- 
 signee should be quite prompt, or be. 
 visited with the consequences of a 
 deposit in a warehouse. But where, 
 as in this case, the defendants have 
 
 1 Moses v. Boston & Maine R. B,. Co., 32 N. H. -523. 
 
296 
 
 THE LAW OP CARRIERS. 
 
 Thus, in the case last cited, ten bags of wool were delivered 
 by the plaintiff to the defendant to be transported from Exeter, 
 
 commodious warehouses and platforms, 
 and are doing an extensive business, 
 consignees ought to have a fair and 
 reasonable opportunity to take their 
 property, and until they have had such 
 opportunity and time, the goods do 
 and ought to remain in the care of the 
 carrier as such. Whatever reasons 
 there are for imposing a strict rule of 
 responsibility during the transit, exist 
 and continue in full force until the 
 consignee has reasonable time to take 
 the goods into his own care and cus- 
 tody. The rule adopted in Massachu- 
 setts has the merit of being definite 
 and of easy application, and may, in 
 many cases, avoid a painful controversy 
 as to what, under the circumstances, 
 is a reasonable time within which the 
 consignee must appear and take his 
 goods. But, on the" other hand, that 
 rule puts an end to the carrier's 
 responsibility as such, just where that 
 responsibility is of the highest value 
 to the shipper. Between the deposit 
 of the guods on the platform and their 
 delivery to the consignee, they are 
 exposed to theft, depredation, and in- 
 jury by strangers, and by the earners' 
 employees. In making delivery care 
 is needed to avoid mistakes, and atten- 
 tion required to see if the goods are 
 uninjured. During the whole process 
 of delivery until fully completed, the 
 goods should remain in the care of the 
 carrier upon the full responsibility 
 pertaining to him as such, and he ought 
 not to be allowed to lay aside that 
 responsibility, until the owner of the 
 .goods has had a fair and reasonable 
 time and opportunity to receive them. 
 "In the ease of Gatliffe v. Bourne, 4 
 Bing. 333, the defendants, being com- 
 mon carriers by water, interposed a 
 defence similar to that made by these 
 
 defendants, by way of a special plea, 
 which was demurred to; and hi de- 
 ciding the demurrer well taken, Chief 
 Justice Tindal says: 'The next 
 special plea contains indeed the aver- 
 ment that, after the steam vessel had 
 arrived in the port of London, the de- 
 fendants were ready and willing to 
 deliver the goods to the plaintiff, but 
 that he was not there ready to receive 
 them, whereupon the defendants landed 
 the goods at the wharf. But this alle- 
 gation is open to the objection that it 
 does not appear that the plaintiff had 
 a reasonable time or opportunity for 
 receiving his goods from the vessel's 
 side. The statement in the plea is 
 compatible with the supposition that 
 the steamboat arrived in the port at 
 midnight, and proceeded at full speed 
 to the wharf, and there immediately 
 deposited the goods; facts which, 
 whatever might be the readiness or 
 willingness of the defendants to de- 
 liver, would make it impracticable for 
 the plaintiff to receive them, if he had 
 been there, and unreasonable to expect 
 him to be there.' 
 
 "There are indeed particulars in 
 which the case of Gatliffe v. Bourne 
 differs somewhat from the case under 
 our consideration. But we think Chief 
 Justice Tindal expresses the true 
 general rule governing the duty of 
 carriers, to wit, that they are bound as 
 carriers to deliver the goods to the 
 consignee, provided the consignee ap- 
 pears within a reasonable time to 
 receive them, and that the consignee 
 is entitled to a fair and reasonable 
 opportunity to receive his goods, be- 
 fore the carrier can deliver them over 
 to himself, or to another as warehouse- 
 man. A new trial is therefore ad- 
 vised." 
 
ON DELIVERY AND NON-DELIVERY. 
 
 297 
 
 N. H., to Boston, and there delivered to a consignee. The 
 wool was carried over the defendants' road on a train which 
 arrived at their freight-house in Boston between one and three 
 o'clock in the afternoon. In the usual course of business, 
 from two to three hours were required to unload the freight 
 from the cars into the warehouse, and the gates were closed 
 at five o'clock, so that no goods could be removed from the 
 warehouse after that hour until the next morning. During 
 the night the warehouse and most of its contents, including 
 the wool, were consumed by fire. It was held that upon 
 these facts the jury were warranted in finding that the con- 
 signee had not a reasonable opportunity to take the wool into 
 his possession before the fire, and that the defendants were 
 liable as common carriers therefor, notwithstanding it might 
 be proved by them that before the fire the wool had been 
 placed upon the platform in the warehouse, from which such 
 goods were usually delivered, separate from other goods, and 
 ready for delivery. 1 In a New York case, 2 the defendants, 
 
 1 Leavenworth, &o. R. R. Co. v. 
 Maris, 16 Kan. 333; Blumenthal v. 
 Brainard, 38 Vt. 402; Winslow v. 
 Vermont, &c. R. R. Co., 42 Vt. 700; 
 Ouimit v. Henshaw, 35 Vt. 604 ; Por- 
 ter ». R. R. Co., 20 111. 407; Alabama 
 and Tennessee Rivers R. R. Co. v. 
 Kidd, 35 Ala. 209 ; Chicago, &c. R. R. 
 Co. v. Bensley, 69 111. 630 ; Wood v. 
 Cracker, 18 Wis. 345; Lemke v. 
 Chicago, &c. R. R Co., 39 Wis. 449 ; 
 Hirsch v. Quaker City, 2 Dis. (Ohio), 
 144; Morris, &c. R. R. Co. v. Ayres, 
 28 N. J. L. 393 ; Maignan v. ISTew 
 Orleans, &c. R. R. Co., 24 La. An. 
 333. A common carrier has not per- 
 formed his contract as carrier until he 
 has delivered, or offered to deliver, the 
 goods to the consignee, or done what 
 the law esteems equivalent to delivery. 
 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; and if a 
 
 reasonable and diligent effort is not 
 made, the carrier is liable for the con- 
 sequences of the neglect. Zinn v. New 
 Jersey Steamboat Co., 49 N. Y. 442. 
 A common carrier, by water, of goods 
 consigned to one not the owner, is not 
 bound to deliver to the consignee in 
 person, or at his warehouse. He may 
 land them at a wharf at the port of 
 destination, but before unlading he 
 must give the consignee due notice of 
 their arrival and unlading, and yield 
 him a reasonable time after notice to 
 take charge of and secure them ; and 
 reasonable time is such as gives the 
 consignee time enough, under all proper 
 and ordinary circumstances, and by 
 proceeding in the ordinary mode of 
 those engaged in the same business, to 
 provide for the care and removal of 
 the goods. McAndrews v. Whetlock, 
 52 N. Y. 40. 
 
 2 Solomon v. Philadelphia, &c. 
 Steamboat Co., 2 Daly (N. Y. C. P.), 
 104. 
 
298 THE LAW OP CARRIERS. 
 
 as common carriers, had in charge goods of the plaintiff which 
 arrived Thursday, and were discharged on the dock Friday. 
 Notice was mailed to the plaintiff Thursday evening of the 
 arrival of the goods, but did not reach the plaintiff until 
 Saturday forenoon. Saturday was a very stormy day, and the 
 goods were not called for until Monday, when they were found 
 to be badly damaged by the rain. The court held that the 
 defendants remained liable as common carriers until notice of 
 the arrival of the goods, and the plaintiff had had a reason- 
 able opportunity for removing them ; and that, under the cir- 
 cumstances, Monday was a reasonable time to remove the 
 goods. And this rule also applies to carriers by water. 1 But 
 a consignee cannot, after he has notice of the arrival of goods, 
 defer taking them away while he attends to other affairs, or 
 because it is inconvenient for him to do so, and thus prolong 
 the carrier's liability as insurer. It is his duty at once, with 
 diligence, to act upon the notice, and to seek delivery and 
 continue it until the delivery is complete ; and the time he 
 gives to his other business after receiving the notice cannot 
 be allowed him in determining what is a reasonable time in 
 which to take delivery. 2 In Massachusetts, 3 however, it is 
 held that the liability of the carrier as such, ceases when the 
 goods have reached their place of destination and have been 
 safely deposited _ upon the platform or in their warehouse, 
 and that from that time, without notice to the consignee of 
 their arrival, he is liable only as a warehouseman for their 
 safe keeping ; and this rule is adopted in North Carolina, Penn- 
 sylvania, Iowa, California, Indiana, Illinois, Alabama, and 
 Georgia, 4 except that in the latter States the liability of the 
 
 1 Shenk v. Philadelphia Steam Pro- v. New York, &c. R. R. Co., 113 Mass. 
 peller Co., 60 Penti. St. 109; The Mary 521; Barron v. Eldredge, 100 Mass. 
 Washington, ante; Lamb v. Camden, 455. 
 
 &o. R. R. Co., ante. 4 Neal v. Wilmington, &c. R. R. 
 
 2 Hedges v. Hudson River R. R. Co., 8 Jones (N. C), L. 482; McCarty 
 Co., 49 N. Y. 223. v. New York & Erie R. R. Co, 30 
 
 8 Thomas v. Boston & Providence Penn. St. 247 ; Mohr v. Chicago, &c. 
 
 R. R. Co, 10 Met. (Mass.) 472; Nor- R. R. Co, 40 Iowa, 579 ; Jackson ». 
 
 way Plains Co. ». Boston & Maine R. Sacramento Valley R. R. Co, 23 VaL 
 
 R. Co, 1 Gray (Mass.), 263 ; Stowe 269 ; Chicago, &c. R. R. Co. ». Mo- 
 
ON DELIVERY AND NON-DELIVERY. 299 
 
 carrier is not changed to that of a warehouseman until the 
 goods have been placed in the warehouse or other place of 
 safe deposit. Where the consignee knows that the goods have 
 arrived, and of their readiness for delivery, or is present when 
 they arrived, the carrier is excused from giving notice ; and if 
 he neglects to take them away within a reasonable time, the 
 carrier is absolved from liability therefor, as such. 1 If the 
 carrier is ignorant of the whereabouts of the consignee, it is 
 his duty to make due inquiry to ascertain it, and if, after due 
 inquiry, he fails to ascertain the fact, he is excused from giv- 
 ing notice; and after a reasonable time for removal has 
 elapsed, his liability as a carrier ceases, if he has stored the 
 goods, and he is only liable as a warehouseman. 2 Prom what 
 has been said, it will be seen that the Massachusetts doctrine, 
 that the carrier's liability terminates when the goods are un- 
 loaded from the train, does not obtain any sanction from the 
 courts of the other States, and that the doctrine that the lia- 
 bility ceases when the goods are safely stored, without notice 
 to the consignee, only prevails in a few of the States. 
 
 In one case in which a carrier did not deliver within rea- 
 sonable time, the bailor was not only allowed to recover for 
 that breach Of duty upon the part of the carrier, but for the 
 expenses "to which the latter was put in consequence of the 
 delay. 3 
 
 Cool, 26 Ind. 140 ; Chicago, &c. R. R. able time to take and remove them." 
 Co. v. Scott, 42 111. 132 ; Alabama, See also, adopting the same rule, Buck- 
 Sic. R. R. Co. v. Kidd, 35 Ala. 209 ; ley v. Great Western R. R. Co., 18 
 South-Western, &c. R R. Co. v. Eel- Mich. 121; Culbreath v. Philadelphia, 
 der, 46 Ga. 433. &c. R. R. Co., 3 Houst. (Del.) 392 ; 
 1 Fenner v. Buffalo, &c. R. R. Co., Sprague v. New York Central R. R. 
 44 N. I. 505 ; Pelton v. Rensselaer & Co., 52 N. Y. 637. In Mississippi it 
 Saratoga R. R. Co., 54 N. Y. 214. In is held that where it is the custom of 
 Rnney v. First Division St. Paul, &c. the company to give notice of the 
 R. R. Co., 19 Minn. 251, the rule was arrival of the freight, it is his duty to 
 stated to he that, " if the consignee is do so. New Orleans, &c. R R. Co. v. 
 present on the arrival of the goods, he Tyson, 46 Miss. 729'. 
 must take them without unreasonable 2 Pelton v. Rensselaer & Saratoga 
 delay. But if he is not present, but R. R. Co., ante. 
 lives at the place of delivery, the car- 8 Black v. Baxendale, 1 Exch. 410; 
 rier must notify him of the arrival of 17 L. J. Ex. 50. See also Adams v. 
 the goods, and then he has a reason- Midland Rail. Co., 31 L. J. Exch. 35 ; 
 
300 THE LAW OP CABKIER9. 
 
 Sec. 234. Loss of Profit. — In the case of Hadley v. Baxen- 
 dale, 1 however, the rule that only such damages can be recov- 
 ered for the breach of a contract as were reasonably within 
 the contemplation of the parties at the time the contract was 
 made, was laid down, and in a case which came before the 
 Court of Common Pleas soon afterwards it was acted upon. 
 In that case it was held that a loss of profit by reason of the 
 plaintiff, a commercial traveller, having left the town before 
 the goods arrived, where the lateness of arrival was caused by 
 the tardiness of a carrier company, could not be recovered. 2 
 And in another case, where it was proved that a commercial 
 traveller delivered, in Oxford, a parcel of samples to a com- 
 mon carrier to be conveyed to Liverpool, but did not state the 
 contents of the parcel, or the purpose for which it was re- 
 quired, and where, by the negligence of the carrier, the parcel 
 was delayed, and the traveller spent three days at Liverpool, 
 unemployed, waiting for it, in an action against the carrier for 
 negligence, in which the hotel expenses of the traveller during 
 the time he was waiting for the parcel were claimed as dam- 
 ages, it was held that he could not recover, on the ground that 
 the damages were too remote, and that the profit which was 
 lost by the delay in the case of The Great Western Railway 
 Company v. Redmayne 3 would seem more naturally within 
 the contemplation of the parties than hotel expenses. This 
 case * overruled that of Black v. Baxendale, referred to above. 6 
 
 Sec. 235. Delivery must take Place as Early as Possible. 
 — With regard to the excuses for delay which have been 
 mentioned above, we may mention in this place that any such 
 retardation in the performance of the duty of the carrier only 
 excuses delay, and does not relieve him from the duty of 
 delivering at the earliest opportunity. 6 
 
 Hamlin v. Great Northern Rail. Co., 8 Great Western Rail. Co. v. Red- 
 
 1 H. & N. 408 ; 26 L. J. Exch. 20 ; mayne, L. R. 1 C. P. 329. 
 Bodley v. Reynolds, 8 Q. B. 779 ; 15 4 Woodger v. Great Western Rail. 
 
 L. J. Q. B. 219. Co., L. R. 2 C. P. 318. 
 
 1 9 Exch. 341 ; 23 L. J. Exch. 6 1 Exch. 410. 
 
 179. 6 Hudley v. Clarke, 8 T. R. 259; 
 
 2 Great Western Rail. Co. v. Red- Evans v. Hutton, 5 Scott, N. R. 670; 
 mayne, L. R. 1 C. P. 329. Story on Bailm., 4th ed., § 545. 
 
ON DELIVERY AND NON-DELIVERY. 301 
 
 Sec. 236. Delivery at a Reasonable Time and at Proper 
 Place. — But not only must delivery be made within a rea- 
 sonable time, but, in order to exonerate the carrier from fur- 
 ther responsibility in connection with the goods, it must be 
 made at a reasonable time, in a reasonable manner, and at the 
 proper place. 1 Unless these three requisites of a delivery are 
 complied with, the responsibility of the carrier cannot be said 
 to cease whenever he has got the goods out of his hands, any 
 more than he could be said to terminate it by pitching the 
 goods out of the conveyance during the journey. 
 
 Sec. 237. Proper Time. — As to a proper time : if perish- 
 able goods were delivered at the consignee's warehouse after 
 the hour of closing, and, in consequence of that circumstance, 
 were refused by some servant of the consignee, and the car- 
 rier, believing that his whole duty was discharged by such 
 delivery, took no further care of the goods, — if in such a case 
 injury was done to the goods by reason of the carrier's negli- 
 gence, he would be liable to the bailor. 
 
 Sec. 238. The Manner of Delivery. — As to the manner in 
 which goods are to be delivered, a consignee would be entitled 
 to refuse to receive goods from a drunken man. And further, 
 as to the manner of delivery, if it is customary for the carrier 
 by water to carry merely from port to port, or from wharf to 
 wharf, and for the owner to fetch the goods from the vessel 
 itself, or from the wharf, as soon as the arrival of the ship 
 has been reported, the carrier must give such owner due no- 
 
 1 Goodwin v. Baltimore & Ohio R. R. place for delivery, and to provide suita- 
 Co., 50 N. Y. 154 ; but in this case ble safeguards to prevent loss. Sun- 
 it was held that the duty of the carrier devland o. Westcott, 40 How. Pr. 
 ceases by the landing of bulky articles (N. Y.) 270 ; Cleveland, &c. R. E. Co. 
 upon a public wharf in the customary v. Sargent, 19 Ohio St. 438 ; Propeller 
 manner, with due notice to the consignee. Mohawk, 8 Wall. (U.S.) 153; Hill v. 
 If a carrier lands perishable articles Humphreys, 5 W. & S. (Perm.) 123 ; 
 upon a wharf upon an unsuitable day, Haslam v. Adams Express Co., 6 Bosw. 
 without reasonable notice to the con- (N.Y. Sup. Ct.) 235. But the consignee 
 signee, he is liable for the damages may, by accepting the goods at another 
 resulting. ' MeAndrews v. Whetlock, and different place from that to which 
 52 N. Y. 40. See also, upon the gen- they are cousigned, discharge the car- 
 eral proposition in the text, Rowlands, rier from liability. Jewell v. Grand 
 Miln, 2 Hilt. (N.Y. C. P.) 150. The Trunk R. R. Co., 55 N. H. 84 ; Par- 
 earner is bound to provide a suitable sons v. Hardy, 14 Wend. (N. T.) 215. 
 
302 THE LAW OP CAREIBES. 
 
 tice of the arrival of the said goods, in order to discharge him- 
 self from further liability. He cannot land the goods without 
 such notice, and so discharge himself, but is bound to keep 
 the goods on board at his own risk for a reasonable time to 
 enable the consignee to come and fetch them. 1 
 
 Sec. 239. Merchant Shipping Act. — The Merchant Ship- 
 ping Amendment Act, 1862, 2 empowers the shipowner to 
 enter and land the goods, in default of entry and landing by 
 the owner ; and notwithstanding the landing the shipowner 
 may, by giving notice for that purpose, preserve his hen for 
 freight. 
 
 Sec. 240. Proper place. — As to place, it has been held 
 that coach proprietors are not relieved from their responsi- 
 bility, as carriers, by leaving goods at the coach-office, or at 
 an inn at which the coach was in the habit of stopping ; and 
 where a parcel of goods was directed to " Mr. James Parker, 
 High Street, Oxford," who, on being applied to, said he ex- 
 pected no such parcel, and it was afterwards delivered to a 
 person who called at the defendant's office, claiming it as 
 his, and who paid the carriage for it, the carrier was held 
 responsible. 3 
 
 1 Bourne v. Gatliffe, 3 Scott, N. B. of misdelivery. It was held that the 
 44; 11 CI. & Fin. 45. company, as warehousemen, were 
 
 2 25 & 26 Vict. c. 63, § 67 et seq. liable for due diligence only ; that 
 8 Duff v. Budd, 6 Moore, 469; 3 they were not chargeable, under the 
 
 B. & B. 177. There were two men circumstances, with negligence ; and 
 
 in St. Charles named H. H. A mer- there had not been a misdelivery, 
 
 chant at a distance received an order Bush v. St. Louis, &c. R. E. Co., 3 Mo. 
 
 for goods, signed H. H., and, knowing App. 62. 
 
 of H. H. No. 1, to whom he was will- The delivery of goods to an agent 
 
 ing to sell, forwarded the goods by of the consignee or owner relieves 
 
 railroad. The company tendered the him from liability, but he is bound at 
 
 goods to H. H. No. 1, who said he his peril to know whether such person 
 
 had not ordered them, and refused is authorized to receive them as agent, 
 
 them, and the company then stored Adonis v. Blankenstein, 3 Cal. 413. 
 
 them as warehousemen. H. H. No. They must at their peril deliver the 
 
 2 then appeared, produced bill of lad- goods to the right person, and if they 
 
 ing, and demanded the goods. The make a wrong delivery they will he 
 
 company delivered them to him, and liable for the loss occasioned thereby. 
 
 he absconded with them, the price The Huntress, Davies (TL S. C. C), 82. 
 
 remaining unpaid to the seller, who Indeed, a misdelivery is treated as a 
 
 then sued the oompany on the ground conversion by the carrier. Claim v. 
 
ON DELIVERY AND NON-DELIVERY. 
 
 303 
 
 SEC. 241. Liability of Carriers for Misdelivery. — Where 
 also a carrier, with the intention of delivering goods at the 
 
 Boston, &c. B. E. Co., 7 Allen (Mass.), 
 311. 
 
 On Feb. 20, 1869, plaintiffs shipped 
 by defendant's line a quantity of 
 butter to be carried from New York 
 to Georgetown, consigned to plaintiffs' 
 order; the packages were unmarked. 
 One S. presented to defendant's deliv- 
 ery clerk a letter written by plaintiffs 
 to him, containing this clause, " The 
 roll sent you to-day you will find of 
 very good quality ; " and upon this the 
 clerk delivered the butter to S. It 
 was held that, as a question of law, 
 the letter was not a sufficient author- 
 ity to justify a delivery of the butter 
 to S. ; nor was the writing of it negli- 
 gence per se; but it was a question of 
 fact for the jury to determine, from the 
 letter and the other facts of the case, 
 whether by plaintiffs' negligence or 
 otherwise the defendant was excused 
 or justified in the delivery of the prop- 
 erty. Viiier v. N. Y., &c. Steamship 
 Co., 50 N. Y. 23. "Where a common 
 carrier, without requiring evidence of 
 identity, delivers to a stranger goods 
 which have been fraudulently ordered 
 by the latter in the name of a fictitious 
 firm, and which have been shipped in 
 compliance with the order directed to 
 the fictitious firm, he is liable to the 
 consignor for their value. Price v. 
 Oswego, &c. E. E. Co., 50 N. Y. 213. 
 In a case where the defendants re- 
 ceived goods for transportation, accom- 
 panied by a manifest containing the in- 
 structions : " Order A, B, & Co., notify 
 C," and they delivered the same to C, 
 without the order of A and B, who were 
 the plaintiffs, it was held that the 
 defendants were liable for the loss in- 
 curred by the plaintiffs by such deliv- 
 ery. The defendants might perhaps 
 decline to receive such shipments, but 
 
 after they receive them they must 
 obey the written directions of the 
 consignor. Wright v. Northern Cen- 
 tral E. E. Co., 8 Phil. (Perm.) 19. 
 
 In a Wisconsin case, where a carrier 
 who, without authority from the con- 
 signor or consignee, delivered to B a 
 package directed to A (and not to 
 care of B), and it was never delivered 
 to A, it was held that the carrier re- 
 mained liable to A, although B was 
 the consignor's agent in respect to 
 other business, at the place of delivery. 
 Ela v. American M. U. Exp. Co., 29 
 Wis. 611. 
 
 If a custom as to the place and 
 manner of delivery of goods to a 
 certain person has been established, 
 the carrier is justified in pursuing that 
 method ; but if he deviates therefrom, 
 and, as a result, the goods are lost, he 
 is liable therefor. Thus, in an action 
 against an express company for the 
 loss of a diamond pin consigned to a 
 student at a college, it was held that if 
 it was the custom of the president of 
 the college to receive from the defend- 
 ant parcels directed to the students 
 therein under his charge, and receipt 
 therefor, or if it was in accordance with 
 the rules of the college that he should 
 do so, then he might properly be con- 
 sidered as the authorized agent of the 
 students for that purpose, and the jury 
 might presume a good delivery to the 
 student to whom it was addressed, when 
 delivered to the president. Southern 
 Express Co. v. Everett, 37 Ga. 688. 
 In an Illinois case the defendants, who 
 were common carriers, had a written 
 order from the plaintiff " to deliver to 
 P. or Dane County Bank any pack- 
 ages that might come for him." They 
 received at their express office, which 
 was in the same building with the 
 
304 
 
 THE LAW OP CARRIERS. 
 
 address to which they were directed, made inquiries for the 
 consignee at that place, but could not hear of him, and upon 
 
 bank, a package of $1,000 for the 
 plaintiff, and, the bank clerk being in, 
 ■while the defendants were distributing 
 their goods, they said to him, " Here 
 is a package for D. J. B. [the plaiutiff] ; 
 will you take it ? " He answered, " I 
 will ask the bank,'' and returning im- 
 mediately said, "Let F. have it." 
 The defendant's agent left word at 
 the store of F. that the package was 
 at the office, and TVs clerk said that 
 F. was absent, and that he would come 
 over and see about it. He afterwards 
 went over and said that "F. was 
 away and had the key of the safe, and 
 that the defendants would have to 
 keep it." But the package was not 
 offered to him, nor was it entered on 
 the delivery book according to the 
 custom of the company. It was held 
 that the package had not been deliv- 
 ered, and that the company was liable. 
 Baldwin v. American, &c. Co., 23 111. 
 197. 
 
 The strictness of the rule requiring 
 a delivery to the consignee or owner, 
 or his agent, is illustrated by a New 
 York case. In that case the plaintiff 
 occupied a room in the fourth story 
 of a building, and a carrier brought a 
 box, weighing about sixty pounds, and 
 placed it within the outside door of 
 the building at the foot of the stairs, 
 and then went up and notified a boy 
 whom he found in the office, that the 
 box was there and must be taken care 
 of. The boy was not authorized to 
 receive packages. The court held 
 that there was not a sufficient delivery 
 to discharge the carrier. Haslam v. 
 Adams Express Co., 6 Bosw. (N. Y. 
 Sup. Ct.) 235. 
 
 If the carrier, when bound to make 
 a personal delivery, as in the case of 
 an express company, tenders or offers 
 
 to make delivery to the consignee at a 
 proper time and place for delivery, and 
 the consignee declines, for a cause 
 which does not involve any fault on 
 the carrier's part, to accept delivery, 
 the carrier from that time stands only 
 in the relation of a warehouseman. 
 Thus in Weed v. Barney, 45 N. Y. 
 344, 6 Am. Rep. 97, the plaintiff con- 
 signed an express package marked 
 " C. 0. D." from New York to San 
 Francisco. Defendants, an express 
 company, received it, conveyed it to 
 San Francisco, and on the 17th of 
 March tendered it to the consignee, 
 and demanded payment. The con- 
 signee said he would receive the 
 package and pay at some other time. 
 The tender of the package and demand 
 of payment were repeated hy the 
 company several times until the 16th 
 of April, when the package was de- 
 stroyed while in defendants' warehouse 
 without their fault. It was held that 
 defendants' liability was that of ware- 
 housemen only, and that plaintiff 
 could not recover the value of the 
 package. 
 
 Peckham, J., in delivering the 
 opinion of the court, said : " Whether 
 Wells, Fargo, & Co. were liable as 
 common earners, or otherwise, for the 
 package received at New York for San 
 Francisco, as between those two cities, 
 is not material to the controversy. 
 The defendants received the package 
 at the ship's tackles at San Francisoo, 
 and their responsibility confessed by 
 them then commenced. They were 
 to deliver the package to Finch & Co., 
 at San Francisco, and collect the 
 amount marked thereon, together with 
 charges and commissions. The pack- 
 age was received by the defendants on 
 the 17th of March, and put in their 
 
ON DELIVERY AND NON-DELIVERY. 
 
 305 
 
 receiving letters ordering them to be sent elsewhere, delivered 
 them at the place mentioned in the letters, upon the transac- 
 
 warehouse, and it was tendered to the 
 consignees and payment demanded. 
 This was repeated several times, natil 
 on the 16th of April, when the pack- 
 age was destroyed, withont fault of the 
 defendants. Let it be remembered that 
 this package could not have been deliv- 
 ered by the defendants. It was to be 
 delivered only upon payment of the 
 money; and the money was not paid. 
 There was no refusal to receive or to 
 pay. The consignees promised to re- 
 ceive and pay each time, and their delay 
 in so doing was not unusual. 
 
 " Thus the package remained in the 
 defendants' warehouse until it was de- 
 stroyed, without their fault. We have 
 lately held that a passenger's baggage, 
 arriving at the end of the journey, and 
 not called for until three days there- 
 after, was then held by the carriers as 
 warehousemen. Burnell v. New York 
 Central R. R. Co., ante, 128 ; and see 
 Roth v. Buffalo and State Line R. R., 
 34 N. Y. 548 ; Goold v. Chapin, 20 N. Y. 
 259 ; Northrup v. Railroad, 2 Trans. 
 App. 183 ; In re Webb, 8 Taunt. 443. 
 After the defendants had tendered the 
 package to the consignees and de- 
 manded the money, and after the con- 
 signees had had a reasonable time to 
 call for and receive it, I think the 
 defendants held the package as ware- 
 housemen, and not as common car- 
 riers, and were thereafter responsible 
 for the care of warehousemen merely, 
 whatever .their attitude before. As 
 warehousemen, it is not pretended 
 they were liable. 
 
 "But it is insisted that the defendants 
 should have given notice to the con- 
 signor, when the consignees did not 
 receive and pay for the package. Was 
 there any contract to do so? All there 
 was on that subject was a mere direc- 
 
 tion from the defendants here to their 
 agents there ' to notify this office ' 
 'if the goods are refused or the 
 parties cannot be found.' This could 
 scarcely be regarded as a contract with 
 the consignor. Nor did either con- 
 tingency happen. The goods were 
 not 'refused;' but the consignees 
 promised to take and pay for them, 
 within the time usual at San Fran- 
 cisco. What was there to notify, so 
 long as these consignees were acting 
 as others usually did at that place, if 
 the practice were' reasonable and 
 valid? Neither counsel has ques- 
 tioned the validity of this practice, 
 and I do not propose to pass upon it. 
 The situation and location of the par- 
 ties must be considered in reference 
 to notice. Mail-time, then, between 
 New York and San Francisco was 
 twenty-two days. The defendants, 
 of course, expected to get pay for the 
 goods before a letter could be an- 
 swered. Telegraphing was expensive ; 
 and there does not seem to have been 
 occasion for its use. There is no 
 statement that it was usually or ever 
 resorted to under such circumstances. 
 The authorities would not seem to 
 require notice under the facts of this 
 case, though notice may be sometimes 
 necessary. Expressmen are not re- 
 quired "to do unreasonable or absurd 
 things. Heugh v. London & North- 
 western Rail. Co., L. R. 5 Exch. 51 ; 
 London & North- Western Rail. Co. v. 
 Bartlett, 7 H. & N. 400 ; Kremer v. 
 Southern Express Co., 6 Coldw. (Tenn.) 
 356 ; Gulliver v. Adams Express Co., 
 38 111. 503. 
 
 " In the case at bar, what had the 
 expressmen to communicate if they 
 had given notice ? Nothing unusual, 
 as nothing unusual had occurred. 
 
 20 
 
306 THE LAW OP CAEEIEES. 
 
 tion proving to be a fraud' on the consignor by some person, 
 and upon action being : brought against the carrier for the 
 goods, he was held liable for their loss, having been guilty of 
 negligence in so delivering the goods. 1 
 
 Sec. 242. What constitutes Delivery. — This subject was 
 discussed in some of its relations in the case of Hyde v. Trent 
 and Mersey Navigation Company. 2 At the trial it appeared 
 that the goods were put on board the defendants' barges at 
 the respective places mentioned in the declaration, and con- 
 veyed therein along the defendants' navigation and the Duke 
 of Bridgewater's Canal to Manchester, where they were landed 
 upon the quay and lodged there in the Duke of Bridgewater's 
 warehouse, in which place they were consumed by an acci- 
 dental fire the same night. In bills made out by the defend- 
 ants, there were charges of so much for tonnage on the river 
 Trent, so much for tonnage on the Trent and Mersey Naviga- 
 tion, so much for the Duke of Bridgewater's Canal, so much 
 for warehouse-room for the Duke of Bridgewater; besides 
 which, in the bill, there was a charge for the cartage from the 
 Duke of Bridgewater's warehouse to the plaintiff's own ware- 
 house in Manchester, and which was paid by the plaintiff 
 when the goods were put on board the defendants' barges; 
 but the charge for the warehouse-room was merely received by 
 the defendants as agents for the duke, and they had no share 
 of the profit. It appeared also to be the practice of many 
 persons in Manchester, for whom goods were brought by the 
 
 But suppose they had notified the would have arrived too late; it 
 home offloe of the whole facts, and would not have prevented the loss, 
 they had directly come to the knowl- Thus it was not the lack of giving 
 edge of the consignor ? He had thus notice that caused the loss ; hence de- 
 become aware that some days had fendants are not liable for omitting to 
 elapsed and the money had not been give it. Morrison v. Davis, 20 Penn. 
 paid, but had been promised, and no St. 171 ; Denny v. New York Central 
 doubt would be paid in a few days, as R. R. Co., 13 Gray (Mass.), 481." 
 was usual at that place. Would the x Stephenson v. Hart, 1 M. & P. 
 consignor have given any directions 357; 4 Bing. 476 ; American Express 
 at war with the course pursued by Co. v. Stack, 29 Ind. 27 ; Winslow ». 
 defendants F In all probability he Vermont, &c. R. R. Co., 42 "Vt. 700; 
 would not. But if he had given The Ben Adams, 2 Ben. 445. 
 directions by mail to return the goods 2 5 T. R. 389 ; 1 Esp. 36. 
 forthwith to New York, the order 
 
ON DELIVERY AND NON-DELIVERY. 307 
 
 defendants, to send their own carts for the goods to convey 
 them from the quay to the warehouse, but the usage had uni- 
 formly been for the cotton-merchants to have their goods 
 conveyed to their own warehouse in carts furnished by the 
 defendants. The question in the case was, whether a carrier 
 was discharged from liability by delivery to a porter at the inn 
 in the place of the destination of the goods, or whether he was 
 bound to deliver to the individual at his house. 
 
 SEC. 243. Delivery at House of Consignee. — The majority 
 of the court held that the carrier's liability continued until a 
 personal delivery at the house or place of deposit of the con- 
 signee had taken place ; and in giving his judgment, Buller, 
 J., said : " According to the defendants' argument there must 
 be two contracts in all cases ; but 1 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 inn- 
 keeper, 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; the carrier is bound to deliver 
 the goods, and the person who actually delivers them acts as the 
 servant of the carrier. ... It has been said, too, that the 
 place of a porter is valuable and the subject of purchase, but 
 who sells it ? Not the person to whom the goods are sent, 
 but the carrier or innkeeper, whom I consider as the same 
 person. If the innkeeper have no share in the profits of the 
 carriage, and receive the goods for the purpose of delivering 
 them to the owners, then the innkeeper is the servant of the 
 carrier as well as the porter. Therefore, whether there be the 
 innkeeper and the porter, or the porter only, the carrier is liable 
 in all cases where the goods are lost after they get into the 
 hands of the innkeeper or porter, because they are delivered 
 to those persons with the consent and as the servants of the 
 carrier. The different proprietors may divide the profits 
 among themselves in any way they choose ; but they cannot, 
 by their own agreement with each other, exonerate themselves 
 from their liability to the owner of the goods. They may fill 
 
308 THE LAW OP CARRIERS. 
 
 the two different characters of -warehousemen and carriers at 
 different times, but I deny that they can be both warehouse- 
 men and carriers at the same instant. If the undertaking was 
 to carry and deliver, then the goods remain in their custody 
 as carriers the whole time." 
 
 Sec. 244. Confirmation of Decision. — This opinion has 
 more than once been confirmed since the time at which the 
 above case came before the court. Thus, where carriers re- 
 ceived goods from the plaintiff in London on an undertaking 
 to carry them to Worcester, and deliver them there to the 
 plaintiff for his use on payment of the hire ; the goods were 
 carried to Worcester, and sent from the warehouse nearly half 
 a mile to the house of the plaintiff, but, the hire not being 
 ready to be paid, were taken back to the warehouse. Applica- 
 tions to send the goods again to the house were refused, not 
 on the ground that the contract had been performed by the 
 proffer of the goods at the place to which they were sent, but 
 until satisfaction of a lien set up on one side and resisted on 
 the other, and which proved to be unfounded in fact. In this 
 case it was held that, under these circumstances, the carriers 
 had waived the benefit which would probably have resulted to 
 them from insisting on the proffer as an execution of the 
 undertaking ; that both parties had treated the contract as one 
 continuing contract from the commencement of the transaction 
 till an actual delivery should have taken place ; and that the 
 carriers not having performed their part of the agreement, the 
 consignee was entitled to recover. 1 Although the judges who 
 decided that case did not think it necessary either to enter into 
 the question as to whether it is or is not necessary that the 
 carrier should find out the consignee of the goods intrusted to 
 his conveyance, and deliver them at his residence, nor the 
 question as to whether a carrier is bound to bring goods for 
 delivery more than once, they seemed to be under the impres- 
 sion that the answer to both these questions should be in the 
 
 1 Storr v. Crowley, M'Clel. & Y. & Aid. 356 ; Stephenson v. Hart, i 
 
 129. See also Garnett v. Willan, 5 Bing. 476 ; Duff v. Budd, 3 B. & B. 
 
 B. & Aid. 53 ; Bodenham v. Bennett, 177. 
 4 Price, 34 ; Birket v. Willan, 2 B. 
 
ON DELIVERY AND NON-DELIVERY. 309 
 
 affirmative. In one case, however, while the latter was not dis- 
 cussed, a point somewhat analogous to it was decided. 
 
 SEC. 245. Return of Parcel to Consignor. — In that case 
 the plaintiff delivered in London to the defendants, who were 
 common carriers, a parcel addressed to the plaintiff 's agent, 
 at Plymouth. The defendants' railway terminated at Bristol, 
 from whence they forwarded the parcel to Plymouth by the 
 South Devon Railway, and shortly before noon on the day of 
 its arrival, a porter tendered it to the plaintiff's agent, who 
 refused to pay the sum charged for its carriage, whereupon 
 the porter took it away, saying that it would be returned to 
 London ; and it was accordingly sent back to London at eight 
 o'clock on the morning of the following day. About two hours 
 afterwards, the plaintiff's agent tendered, at the office of the 
 South Devon Railway, the amount of the carriage, and de- 
 manded the parcel, when he was told that it had been that 
 morning returned to London. The parcel remained in the cus- 
 tody of the defendants, at their office, in London, and it did not 
 appear that the plaintiff had applied for it there. The jury 
 found that the parcel was sent back to London unreasonably 
 soon, and that the demand of the parcel and tender of the 
 charge for the carriage was made within a reasonable time 
 after the parcel had been refused. When the case came before 
 the Court of Exchequer Chamber, on appeal from the Court of 
 Exchequer, it was held that, under these circumstances, the 
 defendants were liable for a breach of duty, even supposing 
 their duty qua carriers ended with the tender of the parcel. 1 
 
 Sec. 246. Duty of Carrier after Consignee's Refusal of Goods. 
 — This decision indirectly supports the opinion to which 
 allusion was made above, that a carrier is not bound to offer 
 the goods more than once; but it also establishes the fact that 
 a single refusal upon the part of the .consignee to pay the 
 charge, which is consequently a refusal to receive the goods, 
 will not discharge all the duties which may devolve upon a 
 carrier in relation to goods which have been intrusted to him. 
 There seems to be little doubt that the tender of the goods did 
 
 1 Great Western Rail. Co. v. Crouch, 3 H. & N. 183. 
 
310 THE LAW OP CARRIERS. 
 
 terminate his relation to them as a carrier ; but the fact that he 
 had goods in his possession created other duties in regard to 
 them, which, in the case just considered, the defendants did 
 not properly perform. 1 
 
 SEC. 247. Duties of Carrier as Bailee. — It is to be taken 
 for granted that it may, upon occasion, be inconvenient for a 
 consignee to pay carriage or to receive goods from a carrier; 
 but the accident of_its being inconvenient is not to deprive 
 him of all legal right with regard to the goods in question, 
 although it may properly deprive him of some of that security 
 which he had while the goods were in the possession of the 
 carrier^ qua carrier. The rule which must regulate such a case 
 must be that which is applicable to a bailee. And the carrier, 
 as bailee, has certain duties to perform in relation to the goods 
 in his charge. 2 One of these is to keep them for a reasonable 
 time to give the consignee an opportunity of claiming them. 
 In the above case, according to the verdict, that was not done. 
 If, during that period, the goods were, through the negligence 
 of the carrier,' lost or stolen, he would, it seemed the best 
 opinion, be held liable. 
 
 Sec. 248. When Liability ceases. — Distinction between 
 their Duties as Bailees and Carriers. — If, however, he has 
 kept them for a reasonable time, — and the decision of the 
 question as to what a reasonable time would be must be 
 decided upon all the circumstances of the carrier's knowledge, 
 or want of knowledge, of the nature of the goods, — his duties 
 as bailee will wear themselves out, and his liability for the 
 goods would cease. If, however, in this case, 3 the parcel had 
 been retained until the plaintiff's agent tendered the amount 
 of the carriage at the office of the South Devon Railway, and 
 .demanded it, and it had then been given up to him, and lost 
 by him between the said office and his own residence, the 
 
 1 Eagle v. White, 6 Whart. (Penn.) tained them at the request of the con- 
 505; Kremerv. Southern Express Co., signor. St. Louis, &c. R. R. Co. v. 
 6 Coldw. (Tenn.) 356. Montgomery, 39 111. 335. See also 
 
 2 Adams Express Co. v. Cressap, Rose v. Allen, 3 Blatchf. (U. S. C. C.) 
 6 Bush (Ky.), 572. His relation to 289. 
 
 the goods is similar to that he would 8 Great Western Rail. Co. v. Crouch, 
 occupy with regard to them if he re- 3 H. & N. 183. 
 
ON DELIVERY AND NON-DELIVERY. 311 
 
 defendants would not have been held liable on the ground that 
 it is their duty to deliver at the residence of the consignee, 1 
 for the delivery was not made by them as carriers, — their 
 duty in that respect having come to an end at the time the 
 parcel was tendered by the company's servant to the plaintiff's 
 agent. 2 
 
 SEC. 249. Liability of Carrier for Loss in Warehouse. — In 
 a case where four persons, who were partners as carriers, 
 agreed with Messrs. Shepherd, of Frome, to carry goods from 
 London to that place, where they were to be deposited in a 
 warehouse belonging to the partnership at Frome (where one 
 of the partners in the said firm of carriers resided), without 
 any charge for warehouse-room, till it should be convenient to 
 Messrs. Shepherd to take the goods home; some goods of 
 Messrs. Shepherd were carried by the partners from London 
 to Frome under this agreement, and were deposited in the 
 warehouse at the latter place, and destroyed by fire. Under 
 these circumstances, it was held that the partners were not 
 liable to Messrs. Shepherd. 3 The court seemed to think that 
 Messrs. Shepherd had made two contracts with the defendants, 
 — one for carrying, and the other for warehousing, — and that 
 the duty of the defendants as carriers ceased not on delivery, 
 but upon the inception of their character as warehousemen, 
 and that as the loss occurred while the goods were in the pos- 
 session of the defendants as warehousemen, they could not be 
 held liable for their loss by fire. This may be the correct 
 view of the case. It has, however, another aspect. The agree- 
 ment that the goods shall be stored until the convenience of 
 the Messrs. Shepherd might be regarded only as a delay in the 
 delivery. The warehousing could not be looked upon as gra- 
 tuitous any more than the return of empties is gratuitous upon 
 the part of a railway company.* All bargains are synthetic 
 wholes. They may be analyzed. Thus this bargain con- 
 
 1 Golden v. Manning, 2 W. Bl. 916 ; s In re Webb, 8 Taunt. 443 ; 2 
 3 Wils. 429 ; Duff v. Budd, 6 Moore, Moore, 500. 
 
 469; 3 B. & B. 177; Stephenson v. 4 Aldridge v. Great Western Bail. 
 
 Hart, 4 Bing. 476; 1 M. & P. 357. Co., 15 C. B. jr. s. 582; 33 L. J. 
 
 2 See also Winslow v. Yermont, &c. C. P. 161. 
 B, R. Co., 42 Vt. 700. 
 
312 THE LAW OF CARRIERS. 
 
 tained, as it were, an offer upon the part of the partner- 
 carriers for the custom of the Messrs. Shepherd. This offer 
 was the offer of greater facility and convenience, and it was 
 accepted. The partner-carriers may be supposed to have been 
 in competition with other carriers, and to have offered this 
 extra inducement to the public, or to Messrs. Shepherd, to deal 
 with them, — in which case the whole transaction might be 
 looked upon as one, and the warehousing as in no way differ- 
 ent from the placing a parcel upon a shelf before an offer of 
 delivery has been made. 1 As the case stood, however, the 
 duty of the partners as carriers was doubtless suspended by 
 the special contract between them and Messrs. Shepherd. 2 
 
 Sec. 250. When Warehousing is a Part of the Duty of 
 Carrying. — But, as the above exposition may have indicated, 
 when a carrier has been intrusted with goods to convey from 
 one place to another, and to be forwarded from the latter of 
 the two places to a third place, and, before thus forwarding 
 them, puts them in a warehouse where they were destroyed by 
 fire, he will be answerable for the loss. The question as to 
 whether he had or had not had an opportunity of forwarding 
 them is not material. 3 
 
 Sec. 251. Modification of Duty of Delivery. — Where the 
 plaintiff's declaration stated a contract by the defendants 
 safely and securely to carry and convey by a steam vessel cer- 
 tain goods of the plaintiff from Belfast to Dublin, and from 
 thence to London, and to deliver the same at the port of Lon- 
 don to the plaintiff or his assigns on payment of freight, a 
 plea that the goods were put on board under a bill of lading, 
 by which they were made deliverable to the plaintiff or his 
 assigns, on payment of freight, — that after the arrival of the 
 vessel at London with the goods on board, the defendants 
 caused them to be unshipped, and safely and securely landed 
 
 1 Garside v. Trent Navigation Co., 4 a Garside v. Trent Navigation Co., i 
 T. R. 581 ; Buckley v. Great WesCern T. R. 581 ; Buckley v. Great Western 
 Bail. Co., 18 Mich. 121. But see Rail. Co., 18 Mich. 121. But see 
 Chicago & A. R. R. Co. v. Scott, 42 Chicago & A. R. R. Co. v. Scott, 42 
 111. 132. 111. 132. 
 
 2 Per Gibbs, C. J., In re Webb, 8 
 Taunt. 443. 
 
ON DELIVERY AND NON-DELIVERY. 313 
 
 and deposited in and upon a certain wharf called Fenning's 
 Wharf, at the port of London, there to remain until they could 
 be delivered to the plaintiff according to the tenor of the bill 
 of lading, the said wharf being a place at which goods con- 
 veyed in steam vessels from Dublin to London were used and 
 accustomed to be landed and deposited for the use of the con- 
 signees thereof, and a place fit and proper for such purpose, 
 and that afterwards, while the goods remained upon the said 
 wharf, and before a reasonable time for the delivery thereof, 
 according to the tenor and effect of the bill of lading, had 
 elapsed, the goods were destroyed by an accidental fire, — was 
 held by the House of Lords to be a good plea to the count. 1 
 
 Sec. 252. Other Modifications of Duty. — We have seen, 
 then, that the duty of the carrier to deliver the goods may be 
 modified, — that the refusal of the consignee to receive the 
 goods when they are offered discharges him from the necessity 
 of making another offer to deliver, and makes the relation of 
 the carrier to the goods that of a bailee for hire, 2 — that a 
 special agreement entered into between the bailor and the car- 
 rier may modify this duty, 3 — and also that a usage of the 
 trade may modify the duty which is imposed upon the carrier 
 to deliver the goods at a certain place. 4 The latter principle 
 necessarily follows from the very nature of a carrier's employ- 
 ment. His duties are thrust upon him by the fact that he is 
 accustomed to exercise them. When a man does a thing in a 
 certain way, the law rightly says you shall do it in that way, 
 so long as you do it at all. No man is compelled to be a car- 
 rier ; but every man is compelled to make his acts conform to 
 his professions when he pretends to be a public servant, other- 
 
 1 Bourne v. Gatliffe, 8 Scott, N. R. port to port ; per Bt/ller, J., in Hyde 
 604; 11C. & P. 45. See also Gatliffe v. Trent & Mersey Navigation Co., 5 
 v. Bourne, 4 Bing. N. C. 314, and 1 T. R. 389.. 
 
 Scott, N. R. 1. i Bourne v. Gatliffe, 8 Seott, N. R. 
 
 2 Ante, p. 310. 604 ; Catley v, Wintringham, Peake, 
 8 In re Webb, 8 Taunt. 443; 2 N. P. Cas. 140; Rowe v. Pickford, 8 
 
 Moore, 500; Robinson v. Turpin, Taunt. 83 ; Garside v. Trent Naviga- 
 
 Wilson v. London Steam Navigation gation Co., 4 T. R. 581; Abbott on 
 
 Co., L. R. 1 C. P. 61. A bin of lading Ship. But see Wardell v. Mourillyan, 
 
 is only an agreement to carry from 2 Esp, 693. 
 
314 THE LAW OP CARRIERS. 
 
 wise the public would be misled. As custom has shaped his 
 trade in every particular, we should expect it to modify his 
 duty in this particular as well as in others. A carrier may be 
 a warehouseman as well as a carrier, and in many cases the 
 question of his liability will depend upon that other question, 
 as to whether delivery has been dispensed with on the part of 
 the owner of the goods, and whether, in consequence of such 
 dispensation, the bailee is a warehouseman, or whether, there 
 being no such dispensation, and consequent discharge, he still 
 holds the goods as a common carrier. 1 
 
 Sec. 253. Due Notice of Arrival. — With reference to the 
 carriage of goods by water, we have already seen that bills 2 of 
 lading very commonly modify the duty which exists at com- 
 mon law to deliver personally to the consignee, or at his resi- 
 dence ; we have seen that, as Buller, J., said, 3 " when goods 
 are brought from foreign countries, they are brought under a 
 bill of lading, which is merely an undertaking to carry from 
 port to port." And we may add that if it is the custom of 
 the carrier to carry from port to port, or from wharf to wharf, 
 and for the owner to receive the goods at the vessel, or at the 
 wharf, as soon as the arrival of the vessel is reported, due 
 notice must be given to the owner, in order to give him the 
 opportunity of receiving in safety, if the carrier would be dis- 
 charged from his responsibility by such delivery. 4 Otherwise, 
 such delivery would or might invariably result in loss of or 
 damage to the goods, for which the owner would have no 
 remedy, and which he could take no means of preventing. 5 
 
 1 Garside v. Trent Navigation Co., (U. S. C. C), 541 ; The Grafton, 
 4 T. R. 581; Forward v. Pittard, 1 Olc. (U. S..) 42; affirmed on appeal, 
 T. R. 27. See ante, p. 298. Abb. Adm. (U. S.)552N. ; Ostrander 
 
 2 Ante, p. 310. And see Brettan v. v. Brown, 15 Johns. (N. Y.) 39; 
 Barnaby, 21 How. 528; Howland v. Chickering v. Fowler, 21 Mass. 371; 
 Greenway, 22 How. 491. . Gibson v. Culver, 17 Wend. (N. Y.) 
 
 8 Hyde v. Trent & Mersey Naviga- 305 ; Merwinw. Butler, 17 Conn. 138; 
 
 tion Co., 5 T. R. 389. The Peytona, 2 Curt. (U. S. C. C.) 
 
 4 Wardell v. Mourillyan, 2 Esp. 21 ; Blossom b. Smith, 3 Blatehf. 316 ; 
 
 693 ; Quiggen v. Duff, 1 M. & W. Redmond v. Liverpool, &e. S. S. Co., 
 
 174 ; Gatliffe v. Bourne, 4 Bing. N. C. 56 Barb. 320. 
 
 314 ; Herman v. Goodrich, 21 Wise. 6 See Withers v. New Jersey, to. 
 
 536. See also The Peytona, Ware Co., 48 Barb. (N. Y.) 455. 
 
ON DELIVERY AND NON-DELIVERY. 315 
 
 This would not so much injure the owners of goods as the car- 
 riers of such .articles. If there was no security in transmit- 
 ting, men would not transmit. It would, of course, to a certain 
 extent, paralyze trade. 
 
 SEC. 254. Construction of Bill of Lading. — The question 
 of the duty of delivery came under the notice of the Court of 
 Common Pleas, in the case of Wilson v. London and Italian 
 and Adriatic Steam Navigation Company, 1 in which the ques- 
 tion turned upon the construction to be placed upon a bill of 
 lading. In a bill of lading there was a proviso that simulta- 
 neously with the ship being ready to unload the whole or any 
 part of the goods (forty pipes of lemon juice), the consignee 
 was bound to be ready to receive the same from the ship's 
 side, and in default the master or agent of the ship was au- 
 thorized to enter the goods at the custom house, and land, 
 warehouse, or place them in lighters, at the risk and expense 
 of the consignee. After part of the goods had been landed 
 by the shipowner, but not before, the consignee was ready and 
 offered to receive the remainder, but the shipowner refused to 
 deliver them to him, and landed them himself. Here it was 
 held that the contract was divisible, and that, unless the ship- 
 owner had been prejudiced by the delivery of the remainder, 
 by the default of the consignee in not being ready to receive 
 the whole, he was bound to deliver them. Therefore, in this 
 case there could, by the means the shipowner adopted, be no 
 discharge of his liability as a carrier with regard to that por- 
 tion of the goods which he entered, landed, and warehoused 
 himself, after the plaintiff was ready and offered to receive 
 them, unless he could prove that by changing the mode of 
 delivery he would be, in some way, prejudiced. 
 
 SEC. 255. Delivery of Passengers' Luggage. — Two cases 
 may be referred to as showing the duty to deliver which is 
 incumbent upon carriers with regard to passengers' luggage. 
 In one of these the London, Brighton, and South Coast Rail- 
 way Company were the defendants, and the plaintiff's dec- 
 laration stated that the wife of the plaintiff had become a 
 
 1 L. Eep. 1 C. P. 61. 
 
316 THE LAW OF CARRIERS. 
 
 passenger on the defendants' line of railway, to be carried, 
 together with her luggage, from Woodgate Station in Sussex 
 to Southwark Station in Surrey, and to be, at the latter station, 
 delivered safely and securely for reasonable reward. And it 
 alleged that the defendants, not regarding their duty, did not 
 use due and proper care in and about the carriage or convey- 
 ance of the dressing-case (part of the luggage of the plaintiffs 
 wife), but took so little and such bad care in and about the 
 carrying and conveying the same, that through the careless 1 - 
 ness, negligence, and improper conduct of the defendants, the 
 dressing-case was lost. It appeared that the plaintiff's wife 
 became a passenger by a first-class carriage, to be conveyed 
 from the first to the second of the above-mentioned stations, — 
 that the dressing-case was placed in the carriage under the 
 seat, — that on the arrival of the train at the latter station, the 
 porters of the company took upon, themselves the duty of car- 
 rying the lady's luggage from the railway carriage to the 
 hackney carriage which was to convey her to her residence,— 
 and that on her arrival there, the dressing-case was missing. 
 
 Sec. 256. Continuance of Duty. — And it was decided that 
 the duty of the defendants, as common carriers, continued 
 until the luggage was placed in the hackney carriage. 1 Al- 
 though the principle laid down in this case is perfectly cor- 
 rect, exception might be taken, to the ruling, that the plaintiff 
 was entitled to recover. The other case was somewhat simi- 
 lar. There the plaintiff was a passenger by the defendants' 
 railway, and brought with him a carpet-bag containing a large 
 sum of money, and kept it in his own possession until the 
 arrival of the train at the London terminus. On alighting 
 from the carriage with the bag in his hand, the plaintiff per- 
 mitted a porter of the company to take it from him for the 
 purpose of securing a cab. The porter, having found a cab 
 (within the station), placed the carpet-bag on the foot-board 
 thereof, and then returned to the platform to get some other 
 luggage belonging to the plaintiff, when the cab disappeared, 
 and the carpet-bag and its contents were lost. It was held 
 
 1 Richards ». Loudon, Brighton, & South Coast Rail. Co., 7 C. B. 839. 
 
ON DELIVERY AND NON-DELIVERY. 317 
 
 that this was a loss by the negligence of the company for 
 which they were responsible in damages. 1 
 
 SEC. 257. Modification of Carriers' Duty. — To this case, 
 like that last quoted, exception might, with some force, be 
 taken since the decision in the case of The Great Western 
 Railway Company v. Talley, 2 in which it was held that the 
 general liability was, under the circumstances (the owner of a 
 portmanteau had taken his portmanteau into the carriage with 
 him, and having left his carriage the portmanteau was dis- 
 covered to have been cut open and its contents had been re- 
 moved), modified by the implied condition that a passenger 
 should use reasonable care, and that, as the loss was due to 
 his neglect alone, the verdict must be entered for the railway 
 company. No doubt both of the above-quoted cases are very 
 similar to that just referred to. In each the duty of the rail- 
 way company was modified by the duty which the owners had 
 taken upon themselves, and the only circumstance which 
 could make the company liable would be the delivery of the 
 articles to the porters, who were servants of the company. If 
 that was argued with regard to these cases, the implied duty 
 of a company by its servants, to see after luggage of pas- 
 sengers when they have left the carriage in which it was 
 deposited, might be asserted on the other side. 
 
 Sec. 258. When Delivery takes Place. — And as in the 
 one case the company's duty was modified by the personal 
 superintendence upon the part of the passenger, so it ought to 
 have been held modified in the other. If the passenger, in 
 the latter case, 3 regarded the bag containing the money as too 
 valuable to be trusted out of his sight during the transit, — if 
 he would not trust it to the company's servants, during the 
 journey, to be placed in the van, — ther^ is a presumption that, 
 even when he gave it to the porter to carry, he meant himself 
 to see it safely deposited, and that it was lost through some 
 negligence of his own. Although it seemed necessary to point 
 
 1 Butchery. London & South-West- 2 19 W. R. 154 ; 23 L. T. jf. s. 413. 
 
 em Rail. Co., 16 C. B. 13. See 8 Butcher v. London & South-West- 
 
 also Le Conteur v. London & South- era Rail. Co., 16 C. B. 13. 
 Western Rail. Co., 6 B. & S. 961. 
 
318 THE LAW OP CARRIERS. 
 
 out the want of uniformity in the decisions on this point, we 
 have already said that the principles laid down in the cases 
 cited were perfectly satisfactory. These principles were, that 
 where a railway company employ porters to carry luggage, 
 belonging to passengers, from the train to the carriages or 
 hired vehicles of passengers, delivery cannot be held to have 
 taken place, and therefore the liability of the company con- 
 tinues, until the luggage has been so conveyed. 1 The ques- 
 tion in these two cases was, whether there had been an actual 
 delivery to the carriers as carriers, 2 or whether the plaintiffs 
 had not, by their acts, implied a contract that they would take 
 the care and risk of their own goods. 
 
 Sec. 259. Claim of Passenger. — In every case, however, 
 where luggage is to be delivered to a passenger by a company, 
 the claim must be made within reasonable time. It would be 
 a hardship upon a railway company to compel its servants to 
 discover the owners of all the luggage in the van, and in many 
 cases it would be impossible to do so. Under these circum- 
 stances, it is evidently the duty of the passenger to facilitate 
 such delivery by demanding his goods. If such a demand is 
 not made within reasonable time, the carrier will be divested 
 of his character of insurer, and will, as we have already seen, 
 with reference to goods not passengers' luggage, become a 
 bailee for hire, or a gratuitous bailee, as the case may be. 
 But this rule will apply only to cases where the luggage is un- 
 claimed by the passenger, through the passenger's own neglect, 
 and not where it remains unclaimed through some negligence 
 upon the part of the carrier, as, for instance, in causing the 
 passenger to go into a wrong train, whereby he was prevented 
 claiming his luggage at his and its destination. 3 
 
 1 See also Great Western* Railway rier is a somewhat difficult one to 
 ». Goodman, 12 C. B. 313 ; 21 L. J. answer, and it seems to us that the 
 197 C. P. answers which have been given are not 
 
 2 An overcoat was held never to altogether satisfactory. See Shepherd 
 have been delivered to the carriers ; v. Bristol & Exeter Rail Co., 37 L. J. 
 per Chambke, J., in Robinson v. Dun- Exch. 113 ; 3 L. R. Exch. 189. See 
 more, 2 Bos. & P. 416. also Jeffersonville R. R. Co. ». Cotton, 
 
 8 The question as to whether deliv- 29 Ind. 498 ; Buckley v. Great West- 
 ery has taken place while the goods ernR.R. Co., 18 Mich. 121 ; Francis b. 
 are still in the possession of the car- Dubuque, &c. R. R. Co., 25 Iowa, 60. 
 
ON DELIVERY AND NON-DELIVERY. 319 
 
 Sec. 260. Delivery to Person. — Having considered the 
 question as to what delivery of goods, in so far as place is 
 concerned, will discharge the carrier's liability, we may now 
 consider what delivery of goods, in so far as the person is con- 
 cerned, will effect the same object. We have seen that it is 
 the carrier's duty to deliver to the consignee ; 1 but just as the 
 duty to deliver at the place to which the goods are addressed 
 is subject to modification, so this other duty is not binding in 
 all cases, and under all circumstances. 
 
 SEC. 261. Delivery tc Consignee's Agent. — A delivery to 
 an agent of the consignee authorized by him to receive the 
 goods will free the carrier from further responsibility. It is 
 just as important, however, for the carrier to ascertain that 
 he delivers to an agent duly authorized to receive, as, in case 
 of loss and compensation, he should ascertain the proper 
 person to whom compensation is due before he pays. 2 
 
 SEC. 262. Delivery to Right Person. — The duty of the 
 carrier is imperatively to deliver to the right person, and no 
 amount of care will excuse him from delivering to a person 
 other than the right one. The case of Sanquer v. The Lon- 
 don and South-Western Railway Company 3 is in point. There 
 the plaintiff, a provision merchant at Morlaix, sent 314 casks 
 of butter by the defendant's railway, marked A, and ad- 
 dressed, "To order, at Brewer's Quay." The defendants, 
 concluding, from the fact of their having been in the habit of 
 carrying butters similarly marked, consigned to Messrs. Allen 
 & Anderson, factors, in London, that these butters were in- 
 tended for them, and having received directions from Messrs. 
 Allen & Anderson to send all butters, coming to them from 
 Morlaix, to- Hibernia Wharf, delivered 154 of the casks at that 
 place, the remaining 160 having, by accident, got to Brewer's 
 Quay. Goodchaux & Co., the holders of the bill of lading, 
 had received directions not to let Messrs. Allen & Anderson 
 
 1 See p. 314. (N. Y.) 39 ; Adonis v. Blankenstein, 
 
 2 Coombs v. Bristol & Exeter Bail. 2 Cal. 413 ; Blossom v. Smith, 3 
 Co., 3 H. & N. 1. See also Russell Blatchf. (U. S. C. C.) 316. 
 
 », Livingstone, 16 N. Y. 515 ; 19 Barb. » 16 C. B. 163 ; 13 C. L. K 811. 
 346 ; Ostrander v. Brown, 15 Johns. 
 
320 THE LAW OP CARRIERS. 
 
 have the butter, unless they accepted certain drafts at sight, 
 which they declined to do ; and when Goodchaux & Co. ap- 
 plied to the defendants as to the 154 casks, they referred them 
 to Messrs. Allen & Anderson, who took no further notice of 
 the transaction. Messrs. Allen & Anderson afterwards sold 
 the butter at the fair market price, and rendered account-sales 
 to the plaintiff, but before the money was handed over, they 
 suspended payment. Here, then, it was held that the defend^ 
 ants were liable to the plaintiff for this misdelivery, and that, 
 notwithstanding that he had so far adopted the act of Messrs. 
 Allen & Anderson as to endeavor to obtain from them the 
 proceeds of the sale. 1 
 
 Sec. 263. Misdelivery. — So, in an earlier case, where the 
 plaintiff, having been imposed upon by a swindler, consigned 
 a box at Birmingham, by the defendants, as common carriers, 
 to J. West, 27 Great Winchester Street, London. The de- 
 fendants found that no such person resided there ; but upon 
 receiving a letter signed " J. West," requesting that the box 
 might be forwarded to a public-house at St. Albans, they de- 
 livered it there to a person calling himself West, who showed 
 that he had a knowledge of the contents of the box ; that per- 
 son having disappeared, and the box having been originally 
 obtained from the plaintiff by fraud, it was held that the de- 
 fendants were liable to him in an action of trover, and that it 
 had been properly left to the jury to say whether the defend- 
 ants had delivered the box according to the due course of 
 their business as carriers. 2 
 
 1 See also the recent case of McKean Kenton ; Devereux v. Barclay, 2 B. 
 v. Mclver, 24 L. J. n. s. 559 ; and in & A. 702; Duff v. Budd, 6 Moore, 
 6 L. B. Exch. 36; and see further 469; 3 B. &B.177; Brown ».Hodg- 
 Heugh v. London & North- Western son, 4 Taunt. 189 ; Bonney v. The 
 Bail Co., 21 L. J. n. s. 677 ; 39 L. J. Huntress, 4 Hunt's Merch. Mag. 83 ; 
 48 Exch. ; 5 L. R. Exch. 51 ; Cork American Express Co. v. Stack, 29 
 Distilleries Co. v. Great Southern & Ind. 27; Winslow v. Vermont, &c. 
 Western Bail. Co., 5 Ir. E. C. L. 177 B. B. Co., 42 Vt. 700 ; Meyer v. Chica- 
 Exch. go, &e. B. B. Co., 24 Wis. 566 ; The 
 
 2 Stephenson v. Hart, 4 Bing. 476 ; Ben Adams, 2 Ben. (U. S. C. C.) 445. t 
 1 M. & P. 357. See also Ross v. But see Ten Eyck v. Harris, 47 Ill- 
 Johnson, 5 Burr. 2825 ; Youl v. Har- 268. The carrier, at his peril, must 
 bottle, Peake, N. P. C. 68, per Loud deliver the goods to the right party; 
 
ON DELIVERY AND NON-DELIVERY. 
 
 321 
 
 SEC. 264. Duty with respect to Delivery. — But although 
 the duty of the carrier to deliver to the right person is impera- 
 
 and neither fraud, imposition, nor mis- 
 take will excuse him from liability, if 
 he delivers them to the wrong person. 
 Therefore he has a right to require 
 reasonable evidence of the identity of 
 the consignee, and of his title, to the 
 goods ; and although the real owner 
 applies for the goods, but, being un- 
 known to the carrier, is required to 
 prove his identity, or right to the goods, 
 before delivery, the carrier cannot be 
 charged for their conversion. Thus in 
 McEntee v. New Jersey Steamboat Co., 
 45 N. T. 34, the defendants received 
 at Albany several bundles of sash and 
 blinds, to be carried to New York. The 
 bundles were directed to "McEntee, 
 New York." The goods reached their 
 destination, and the plaintiff demanded 
 the goods of the defendant, who re- 
 fused to deliver them to him upon 
 payment of charges. The .defendant 
 declined to deliver them to him unless 
 he would produce some paper showing 
 his ownership of the goods, or author- 
 ity to receive them as the consignee. 
 The judge presiding at the trial ruled 
 that the only question for the jury was 
 whether freight-money was tendered, 
 and charged them that, under the cir- 
 cumstances, the defendants were justi- 
 fied in delivering the goods to any 
 person calling for them ; and that com- 
 mon carriers are not responsible for 
 wrong delivery, and therefore had no 
 right to insist upon any person proving 
 ownership. The plaintiff had a ver- 
 dict, but it was set aside upon appeal ; 
 Alien, J., saying: "The defendants 
 were charged for the conversion of 
 the goods, upon evidence of a demand 
 and a refusal to deliver them. If the 
 demand was by the person entitled to 
 receive them, and the refusal to deliver 
 was absolute and unqualified, the con- 
 
 version was sufficiently proved, for 
 such refusal is ordinarily conclusive 
 evidence of a conversion ; but if the 
 refusal was qualified, the question was 
 whether the qualification was reason- 
 able ; and if reasonable, and made in 
 good faith, it was no evidence of a con- 
 version. Alexander v. Southey, 5 B. 
 & Aid. 247; Holbrook v. Wright, 24 
 "Wend. (N. Y.) 169 ;' Rogers v. Weir, 
 34 N. Y. 463 ; Mount v. Derick, 5 
 Hill (N. Y), 455. If at the time of 
 the demand a reasonable excuse be made 
 in good faith, for the non-delivery, the 
 goods being evidently kept with a view 
 to deliver them to the true owner, there 
 is no conversion. 
 
 "This action is not upon the contract 
 of the carriers, but for a tortious con- 
 version of the property ; but the rights 
 and duties of the defendants as car- 
 riers are, nevertheless, involved. The 
 defendants were bailees of the property, 
 under an obligation to deliver it to 
 the rightful owner. They would have 
 been liable had they delivered the 
 goods to a wrong person. Common 
 carriers deliver property at their peril, 
 and must take care that it is delivered 
 to the right person ; for if the delivery 
 be to the wrong person, either by an 
 innocent mistake or through fraud of 
 third persons, as upon a forged order, 
 they will be responsible, and the wrong- 
 ful delivery will be treated as a con- 
 version. Hawkins v. Hoffman, 6 Hill 
 (N. Y.), 586; Powell v. Myers, 26 
 Wend. (N. Y.) 290 ; Devereux v. Bar- 
 clay, 2 B. & Aid. 702 ; Guillaume v. 
 Hamburgh & Am. Packet Co., 42 
 N. Y. 212 ; Duff v. Budd, 3 B. & B. 
 177. The duties of carriers may be 
 varied by the differing circumstances 
 of cases as they arise ; but it is their 
 duty in all cases to be diligent in their 
 
 21 
 
322 
 
 THE LAW OP CAERIERS. 
 
 tive, as we have shown, still it is liable to such modifications 
 that in some cases his responsibility as a carrier will be dis- 
 
 efforts to secure a delivery of the 
 property to the person entitled, and 
 they will be protected in refusing de- 
 livery until reasonable evidence is fur- 
 nished them that the party claiming is 
 the party entitled, so long as they act 
 in good faith, and solely with a view 
 to a proper delivery. The Circum- 
 stances of this case, the very defective 
 address of the parcels, and the omis- 
 sion of the plaintiff to produce any 
 evidence of title to the property or 
 identifying him as the consignee, justi- 
 fied the defendants in exercising cau- 
 tion in the delivery ; and it should have 
 been submitted to the jury whether 
 the refusal was qualified, as alleged 
 by the defendants, and if so, whether 
 the qualification was reasonable, and 
 was the true reason for not delivering 
 the goods. The judge also erred in 
 his instructions to the jury as to the 
 duty of the defendants, as common 
 carriers, in the delivery of goods. They 
 may not properly, or without incurring 
 liability to the true owner, deliver 
 goods to any person who calls for 
 them, other than the rightful owner. 
 The judgment must be reversed and a 
 new trial granted, costs to abide event." 
 See also Southern Express Co. v. 
 Crook, 44 Ala. 468 ; 4 Am. Rep. 140 ; 
 Stevenson v. Hart, 4 Bing. 476 ; Chap- 
 man v. New Orleans, &c. R. R. Co., 
 21 La. Ann. 224 ; Ten Eyck v. Harris, 
 47 '111. 288 ; McKean v. Mclver, L. R. 
 6 Exch. 36 ; Meyer v. Chicago, &c. R. 
 R. Co., 24 Wis. 566 ; 1 Am. Rep. 207 ; 
 Jones v. Earl, 37 Cal. 630 ; The Ben 
 Adams, 2 Ben. (U. S. C. C.) 445 ; Jef- 
 fersonville R. R. Co. v. White, 6 Bush 
 (Kv.), 251 ; Dunlap v. Hunting, 2 
 Deii. (N. Y.) 643 ; Carroll v. Mix, 57 
 Barb. (N. Y.) 215 ; Roberts v. Riley, 
 15 La. Aim. 103 ; Burrell v. North, 2 
 
 C. & K. 680 ; Bradley v. Waterhouse, 
 
 3 C. & P. 318 ; Packard v. fietman, 
 
 4 Wend. (N. Y.) 615 ; Michigan Cen- 
 tral R. R. Co. v. Day, 20 111. 375 ; 
 Ball v. Liney, 48 N. Y. 6 ; Wilson v. 
 Vermont Central R. R. Co., 42 Vt. 
 200 ; 1 Am. Rep. 365 ; American Mer- 
 chants Express Co. v. Milk, 73 111. 
 224 ; Dufour v. Murphy, 37 Miss. 577 ; 
 Willard v. Bridge, 41 Barb. (N. Y.) 
 361; Dudley v. Hawley, 40 Barb. 
 (N. Y.) 397; Dean v. Vaccaro, 2 
 Head (Tenn.), 485; Guillaume v. 
 Hamburgh Co., 42 Vt. 212 ; Hemp- 
 stead v. New York Central R. R. Co.. 
 28 Barb. (N. Y.) 485 ; Rogers v. Weir, 
 34 N. Y. 463 ; Ostrander v. Brown, 
 15 Johns. (N. Y.) 40; Turtle v. Glad- 
 ding, 2 E. D. S. (N. Y. C. P.) 157. 
 
 It is for the jury to say whether, in 
 requiring evidence of identity or title, 
 the carrier acted in good faith. Watt 
 v. Porter, 2 Mas. (U. S.) 77; Sar- 
 gent v. Gile, 8 N. H. 325 ; Leightonp. 
 Shapley, 8 N. H. 359 ; Dent v. Chiles, 
 
 5 S. & P. (Ala.) 383. The fact that 
 the goods are delivered on a forged 
 order is no defence. Gasling v. Hig- 
 gins, 1 Camp. 451 ; Lubbock v. Inglis, 
 1 Stark. 104. Nor will the circum- 
 stance that the carrier acted in good 
 faith in delivering the goods, and was 
 deceived, as was also the plaintiff, by 
 the person to whom they were deliv- 
 ered. Thus in an Indiana case, Ameri- 
 can Express Co. v. Stack, 29 Ind. 27, 
 a person who had by some means 
 ascertained that there were goods in 
 the possession of the wife of James 
 Stack, who was then absent, which he 
 might obtain by falsely personating 
 him, telegraphed to the wife, in the 
 name of her husband, to send to James 
 Stack, at the plaoe from which the 
 telegram was sent. The goods were 
 
ON DELIVERY AND NON-DELIVERY. 
 
 323 
 
 charged without any delivery upon his part. In the case of 
 Barker v. Taylor, 1 circumstances which might modify the car- 
 
 forwarded by the wife, by the defend- 
 ant carrier, she at the same time 
 writing a letter addressed to James 
 Stack, which the swindler obtained 
 upon demanding the goods and pre- 
 senting the letter aforesaid. The 
 company were not satisfied as to his 
 identity by this proof, and he produced 
 a person who was known to the defend- 
 ant's agent, who identified him as being 
 James Stack, and who really believed 
 him to be that person, and without 
 making any further inquiry, the goods 
 were delivered to him. In an action by 
 James Stack, to recover for the goods, 
 it was held that the defendant was 
 guilty of gross negligence in the deliv- 
 ery of the goods, and that they were 
 liable therefor. 
 
 In Southern Express Co. v. Van 
 Meter, 17 Ha. 783, 35 Am. Rep. 107, 
 a person sent a forged telegram, in the 
 name of another," requesting a National 
 Bank to forward to Gainesville, Ha., 
 $500, to the address given in the 
 telegram, to wit, Dr. Samuel Van 
 Meter. This telegram was shown to 
 Dr. Van Meter's son, who executed 
 his note for the amount, and the same 
 was sent by 'express, by the bank to 
 which the telegram was addressed, 
 directed to "Dr. Samuel Van Me- 
 ter, Gainesville, Ha., at the Arlington 
 House." The defendant company re- 
 ceived the package from the American 
 Express Co. for transportation and 
 delivery. The defendant's agent ex- 
 pected the party to whom the package 
 was addressed, to arrive from another 
 place, as he was not a resident of the 
 town where the package was to be 
 delivered. The agent met the party 
 assuming to be Dr. Samuel Van Meter 
 
 at the train, at the depot. While 
 there, the proprietor of a hotel other 
 than the one at, or to the care of 
 which the package was directed, 
 asked the agent if he had a package 
 addressed to Dr. Samuel Van Meter, 
 and, the agent having said that he had, 
 the hotel-keeper told him that he was 
 here now. The agent was asked to 
 bring the package to- the hotel kept by 
 the hotel-keeper aforesaid ; but he de- 
 clined to do so, not for want of identi- 
 fication, but because he had not the 
 time to do so, but told the hotel- 
 keeper that if he would bring Dr. V. 
 to his office, he would deliver the pack- 
 age ; and upon the impostor calling at 
 the office, with the hotel-keeper, the 
 agent delivered the package to him 
 without any further identification. The 
 hotel-keeper was known to the agent 
 to be a reliable man, but no inquiries 
 were made of him as to how he knew 
 that the person was Dr. Van Meter. 
 The company was, upon these facts, 
 held liable for the money. " Had the 
 agent," says Westcott, J., "asked 
 the hotel-keeper whether he knew the 
 party to be the person he represented 
 himself to be, he would have been at 
 once informed of the extent of the 
 hotel-keeper's knowledge, and that he 
 only knew that the man so represented 
 himself. The express company was 
 a bailee of the property, under an 
 obligation to deliver to the rightful 
 owner ; and its delivery to a stranger, 
 not the rightful owner, cannot be justi- 
 fied upon the ground that the keeper 
 of a hotel at the point of destination 
 — known to the agent, and in whom 
 he has confidence — simply treated the 
 party as the person entitled to delivery ; 
 
 1 1 C. & P. 101. 
 
324 
 
 THE LAW OF CARRIERS. 
 
 rier's duty in this respect came under the notice of the court. 
 It appeared that a box, containing clothes, had been intrusted' 
 
 the agent at the same time knowing 
 the party to whom he delivered the 
 package was a stranger who had just 
 arrived in town. . . . Notwithstanding 
 the forged telegram, this carrier, in 
 making a personal delivery, was bound 
 by law to deliver to the person to whom 
 the package was addressed, he being 
 the true owner. American Express 
 Co. v. Fletcher, 25 Ind. 492 ; 29 Ind. 
 27. An express company belongs to 
 that class of carriers who undertake 
 to make a personal delivery of the 
 goods to the consignee, and it is held 
 to great strictness in the performance 
 of this duty." 
 
 Iu another Indiana case, American 
 Express Co. v. Fletcher, 25 Ind. 492, 
 a similar rule was adopted, under cir- 
 cumstances which illustrate the ex- 
 treme rigor of the rule. In that case 
 a person calling himself J. O'Riley 
 sent a message to the plaintiff, by tele- 
 graph, requesting the remittance of a 
 considerable sum to his address. The 
 message was received, and the money 
 forwarded to J. O'Riley, as requested 
 in said despatch, by the defendant ex- 
 press company. The telegraph opera- 
 tor who sent the despatch was also the 
 defendants' agent, and upon the arrival 
 of the money he paid it over to the 
 swindler, in good faith, believing him 
 to be the consignee. The court held 
 that the defendants were negligent in 
 not requiring more evidence as to the 
 identity of the swindler, and conse- 
 quently were liable for the money. 
 
 In Duff v. Budd, 3 B. & B. 177, a 
 carrier was held liable for a conversion 
 of the goods under the following cir- 
 cumstances. The plaintiffs received an 
 order for goods for Mr. J. Parker, of 
 High St., Oxford. They had never 
 heard of him, but upon inquiry, found 
 
 that Mr. Parker, of High St., Oxford, 
 was a respectable tradesman. They 
 forwarded the goods by the defendant's 
 wagon, directing the parcel to " James 
 Parker, High St., Oxford." The car- 
 rier's porter knew William Parker, of 
 High St., Oxford, to whom he had de- 
 livered goods before, and after the 
 arrival of the goods informed him of 
 the fact, but learned from him that he 
 had ordered no such parcel, and knew 
 nothing about it. Shortly after this, 
 a person called, to whom the defend- 
 ant's porter had before delivered goods 
 under the name of Parker, and seeing, 
 the parcel said it was his, and he was 
 permitted to take it away without any 
 further or other identification, or that he 
 was the person for whom the goods were 
 intended. The man was an impostor, 
 and the court held that the defendants 
 were liable for a misdelivery of the 
 goods. The rule that the circumstance 
 that the plaintiff was deceived, as well 
 as the carrier, by the person to whom 
 the goods were delivered, does not 
 excuse the carrier, if the person to 
 whom they were delivered was not 
 known by the name in which they 
 were addressed, is illustrated by the 
 case of Winslow v. Vermont, &c. 
 R. R. Co., 42 Vt. 700, which was 
 an action against a railroad company 
 to recover damages from them, as 
 carriers, for non-delivery of goods. 
 It appeared that the goods were 
 ordered from the plaintiffs by C, 
 writing under the false name of R. 
 and intending to swindle the plaintiffs. 
 The plaintiffs addressed the goods to 
 R., and forwarded them by defendants',, 
 road. C. awaited their arrival, and 
 claimed them under the name of K., 
 which name he assumed for the purpose 
 of getting them ; and the defendants 
 
ON DELIVERY AND NON-DELIVERY. 
 
 325 
 
 to the care of the defendant, who was a carrier, and who 
 promised to deliver it at a milliner's, in Newcastle-under-Lyme. 
 
 delivered them without requiring iden- 
 tification, or taking any other precau- 
 tion to make sure that the person 
 receiving them was R. It was held 
 that they were liable for a misdelivery. 
 They were chargeable with negligence. 
 They should have required the claim- 
 ant to identify himself as R., and, on 
 his failure to do so, should have held 
 the goods for the consignors. The 
 fact that the plaintiffs had been led by 
 fraud to address the goods in a fictitious 
 name did not operate to mislead the 
 company, nor was the error in the name 
 any reason why they should have deliv- 
 ered the goads without inquiry as to the 
 identity of the person claiming them 
 with the one named in the address. 
 " What," says the court, " should be 
 the effect upon the measure of the de- 
 fendants' responsibility, of the plain- 
 tiff's error in directing the goods to a 
 fictitious address ? This might be an 
 important question if the error had 
 misled the defendants, and occasioned 
 them to deliver the goods to the wrong 
 party after they had used that care 
 and precaution which would be reason- 
 able hi such matters. But this error 
 in the direction could not excuse the 
 defendants from the exercise of at least 
 ordinary care in the delivery of the 
 property. They did not exercise such 
 care. They were guilty of actual neg- 
 ligence. They delivered the goods to 
 an employee of a truckman upon his 
 mere statement that Roberts sent for 
 them. Any other man in Boston could 
 have obtained them just as easily. 
 The swindler, Collins, was not known 
 as Roberts, and if he had been re- 
 quired to identify himself as Roberts, 
 might never have attempted it ; and if 
 lie had, it would have been likely to 
 have led to the detection of the fraud." 
 
 Where the goods actually are deliv- 
 ered to the person who ordered them, 
 the carrier is not excused, if the goods 
 were shipped in a fictitious name, and 
 the person to whom they were deliv- 
 ered was not known by that name, and 
 no reasonable inquiries are instituted 
 by the carrier to ascertain the identity 
 of the consignee asihe person to whom 
 they are addressed. The carrier is 
 liable for the loss of the goods. The 
 reason for this rule is, that the carrier 
 must use reasonable diligence in de- 
 livering the goods to the party to 
 whom they are addressed, and if they 
 are professedly addressed in a fictitious 
 name, this circumstance of itself puts 
 the carrier upon inquiry, and calls for 
 the exercise by him of increased vigi- 
 lance in ascertaining whether a person 
 known by a different name is in fact 
 entitled to them, because, as stated in 
 the Vermont case before referred to, 
 such inquiry and vigilance would be 
 calculated to discover the fraud, if any ; 
 and if in fact there was no fraud, the 
 parties cannot complain of any delay 
 or inconvenience which their own acts 
 have occasioned. In Price ». Oswego 
 & Syracuse R. R. Co., 50 N. Y. 213, 
 this rule was well illustrated. In 
 that case, in an action by a consignor 
 against the defendant as a carrier, to 
 recover for goods claimed to have been 
 wrongly delivered, it appeared that a 
 person addressed a letter to the plain- 
 tiff, ordering a quantity of goods to be 
 shipped in the name of a fictitious 
 firm. The plaintiff, without making 
 any inquiry as to the existence or sol- 
 vency of such a firm, but relying 
 upon the order as having been given 
 by the firm name, and as being bona 
 fide and honest, shipped the goods to 
 the address named, by the defendant 
 
326 
 
 THE LAW OP CARRIERS. 
 
 It also appeared that the plaintiff had eloped from home with 
 the assistance of an attorney's clerk, whose acquaintance with 
 
 carrier. The goods reached their 
 destination, and the defendants, not 
 knowing any such firm, and without in- 
 stituting any inquiries relative thereto, 
 or to ascertain whether there was in 
 fact any such firm, delivered the goods 
 to a stranger who called for them and 
 paid the charges thereon. He was the 
 same person who gave the order for 
 the goods, and his evident purpose 
 was to obtain the goods by falsely 
 assuming to be the party to whom, by 
 his order, they were consigned. The 
 defendant was held liable, the court 
 holding that where a common carrier, 
 without requiring evidence of identity, 
 delivers goods to a stranger, which 
 have been fraudulently ordered by him 
 in the name of a fictitious person or 
 firm, which have been shipped in com- 
 pliance with the order, directed to the 
 fictitious person or firm, he is liable to 
 the consignor for their value. Not 
 only is the carrier bound to deliver the 
 goods to the consignee or owner, but 
 he is also bound to deliver them at the 
 place to which they are shipped ; and 
 if, upon the faith of a forged order, he 
 delivers them to a person other than 
 the owner, although to a person of the 
 same name, he is liable for the goods 
 Thus in Houston, &e. R. R. Co. v. 
 Adams, 49 Tex. 748, 30 Am. Rep. 116, 
 the plaintiff, at Columbus, Ga., deliv- 
 ered his household goods marked " R. 
 Adams," to the defendant, a common 
 carrier, to be transported. He accom- 
 panied tliem as far as New Orleans, 
 and there directed the defendant's 
 agent to forward them to Bremond, 
 Tex. By mistake, the agent shipped 
 them to Brenham, Tex. There, on 
 the authority of a letter written from 
 Burton, Tex., signed " R Adams," 
 they were forwarded to Burton and 
 
 there delivered to a man calling him- 
 self Robert Adams, a single man and 
 day-laborer, who had no bill of lading 
 or receipt for them, and was not 
 the B. Adams who shipped and owned 
 the goods. The court held that the 
 defendant was liable for the loss of the 
 goods, irrespective of the question 
 whether he was to be treated as a 
 common carrier or warehouseman. 
 
 "Admitting," says Moore, A. J., 
 "that the mistake in freighting the 
 goods to Brenham, instead of Bremond, 
 cannot be imputed to defendant, still it 
 cannot be denied that defendant was 
 bound as a common carrier to deliver 
 the goods in Brenham to the real con- 
 signee to whom they in fact belonged, 
 and that the delivery of them to any 
 one else was a violation of the contract, 
 which entitled the owner to an action 
 for their value. The ease of Winslow 
 v. Vermont & Massachusetts R. R. 
 Co., 42 Vt. 700; s. c. 1 Am. Rep. 
 365, is strictly in point, and fully sus- 
 tains this proposition. It is there said : 
 ' It has been urged that the defend- 
 ants cannot, even as carriers, be held 
 liable for delivering the goods to the 
 wrong party, if they deliver them in 
 the customary manner and in the usual 
 course of business. We think no such 
 exception to the common-law rule can 
 be made. The carrier is under the 
 same contract, obligation, or duty to 
 deliver the goods safely that he is to 
 carry them safely. The law fixes these 
 duties upon the carrier, and he cannot 
 relieve himself from them by proving 
 his usage. It is true, as urged, that 
 it is not as customary for other carri- 
 ers, as it is for express companies, to 
 oblige themselves to look up the owner 
 and consignee, and deliver the goods 
 to him at his residence or place of 
 
ON DELIVERY AND NON-DELIVERY. 
 
 327 
 
 the plaintiff (who was under age) her mother disapproved 
 of. The mother, while in pursuit of the plaintiff, overtook 
 
 business. But all classes of common 
 carriers are responsible, and equally- 
 responsible, for a loss cf the goods by 
 delivery to the wrong person.' And, 
 says the court in McBntee v. New Jer- 
 sey Steamboat Co., 45 N. Y. 34, 6 
 Am. Rep. 28 : ' Common carriers de- 
 liver property at their peril, and. must 
 take care that it is delivered to the 
 right person ; for if the delivery be to 
 the wrong person, either by an inno- 
 cent mistake or through fraud of third 
 persons, as upon a forged order, they 
 will be responsible, and the wrongful 
 delivery will be treated as a conver- 
 sion.' Numerous other cases to the 
 like effect might be easily cited, but it 
 is unnecessary. The proposition is too 
 elementary to require it. Story on 
 Bail. §§ 540, 543, 545 b. It certainly. 
 . follows, if the carrier is guilty of a 
 conversion of the goods by delivering 
 them to the wrong person, though he 
 has acted in good faith and with due 
 caution, he is equally so when he for- 
 wards them from their point of desti- 
 nation elsewhere on the order of any 
 one but the party to whom they should 
 have been delivered. Stephenson v. 
 Hart, 4 Bing. 476. The consignee is, 
 entitled to receive his goods at the 
 place where the carrier undertook and 
 bound himself to deliver them, and is 
 under no obligation to seek or demand 
 them elsewhere. Nor can he be held 
 bound by, or be supposed to have con- 
 sented to, their improper shipment or 
 delivery by the carrier, merely by fol- 
 lowing them to the point to which 
 they have been improperly forwarded, 
 or by demanding them from the party 
 to whom they were wrongfully deliv- 
 ered. 
 
 " But the plaintiff in error maintains 
 that its liability to defendant in error 
 
 as common carrier, in respect to these 
 goods, had ceased even before they 
 were forwarded to Burton ; and if not, 
 it certainly had before they were de- 
 livered at Burton to Robert Adams. 
 In order to determine whether plain! iff 
 in error incurred any liability to the 
 owner by forwarding the goods to 
 Burton and delivering them after their 
 arrival there to said Robert Adams, it 
 is maintained that recourse must be 
 had to the law applicable to warehouse- 
 men, and not to that to which carriers 
 are held subject. But let us see if it 
 is true that defendant's liability as car- 
 rier for the delivery of these goods had 
 ended before they were delivered to 
 the pretended owner at Burton, or 
 would when they were forwarded from 
 Brenham. When the course of busi- 
 ness of the carrier is such as will not 
 ordinarily admit of a personal delivery 
 of the goods to the consignee, there 
 seems to be some conflict in the ad- 
 judged cases as to the precise time and 
 circumstances when the liability of the 
 carrier as such ceases and that of ware- 
 houseman begins ; but whatever diffi- 
 culty may be found in determining this 
 point at common law, or in reconciling 
 the different decisions regarding it, is 
 eliminated in this State by statute, by 
 which it is clearly and definitely de- 
 termined. 
 
 "But if the defendant's liability was 
 merely that of warehouseman, would 
 the facts shown in the record have 
 justified the forwarding of the goods 
 from Brenham, or the subsequent de- 
 livery of them to a party in whom the 
 evidence fails to show anything more 
 than a mere pretence of right to them ? 
 While a warehouseman may no doubt 
 be fully justified in many instances in 
 delivering freight to well-known and 
 
328 
 
 THE LAW OP CARRIERS. 
 
 the defendant's cart, who, upon hearing the circumstances of 
 the elopement, gave up the box to her. The case, upon the 
 
 responsible business men residing in 
 the immediate vicinity of the place to 
 which goods are sent, we think there 
 can be no hesitancy in saying that it 
 was gross negligence to deliver goods 
 of the description and value of these, 
 to a man without family, or settled 
 place of residence, or permanent occu- 
 pation, who held no receipt or bill of 
 • lading for them ; and this, too, in the 
 absence of facts or circumstances of 
 any kind tending to show either that 
 he owned or had any connection with 
 them, except his statement before 
 the arrival of this particular freight, 
 that a lot of freight belonging to him 
 had been shipped to Brenham and that 
 he had ordered it forwarded to Bur- 
 ton, and the bare fact of the similarity 
 of his surname with that of the con- 
 signee ; and certainly nothing what- 
 ever is shown to have warranted the 
 defendant iu forwarding the goods to 
 Burton. It does not appear that the 
 defendant's agent knew, or even had 
 ever heard, prior to the receipt of the 
 letter, that such a person as ' B,. Ad- 
 ams ' was residing there or could right- 
 fully lay any claim to these goods." 
 See to same effect, Price v. Oswego, 
 Ac. R E. Co., 50 N. Y. 213. This 
 case, in some of its features, resem- 
 bles that of Stephenson v. Hart, 4 
 Bing. 476, in which a swindler pro- 
 cured the plaintiff to send a box of 
 goods directed to "J. West, Great 
 Winchester St., London." The car- 
 rier found that no such person lived 
 there, and took the box back. Some 
 days afterwards he received a letter 
 purporting to have been written and 
 signed by "J. West," stating that a 
 box had been sent to him, addressed 
 by mistake to Great Winchester St., 
 and asking that it be forwarded to 
 
 him at another designated place. The 
 carrier sent the box according to such 
 directions, and the swindler obtained 
 it ; and the carrier was held liable for a 
 conversion of the goods, upon the 
 ground that he was guilty of negli- 
 gence in forwarding the goods upon 
 the faith of the letter, when no such 
 person as the consignee was to be 
 found at the place to which the goods 
 were directed. " That circumstance," 
 says Burroughs, J., " ought to have 
 awakened the suspicions of the defend- 
 ants, and they were guilty of gross 
 negligence in parting with them with- 
 out further inquiry. In the result, 
 they have the goods of the plaintiff in 
 their possession, and they are liable to 
 him if they deliver them wrongfully." 
 Gaslee, J., was of the opinion, how- 
 ever, that the defendants were not 
 liable, because the goods had been in 
 fact delivered to the person for whom 
 they were intended. 
 
 The liability of the carrier as to 
 delivery depends upon the question 
 whether or not, in making the delivery 
 to the wrong person, he acted with a 
 proper degree of care and prudence' 
 jn ascertaining the right of the person 
 to whom the delivery was made, to 
 have the goods, or was, in that re- 
 spect, guilty of negligeuce ; and there 
 is a class of cases, especially in Eng- 
 land, and in some of the States of this 
 country, where a rule apparently con- 
 trary to that adopted in the cases already 
 cited is held. Thus, in Western Union 
 Telegraph Co. v. Meyer, 61 Ala. 158, 
 32 Am. Rep. 1, an impostor at Cin- 
 cinnati sent a despatch to Joseph 
 Meyer, the plaintiff, at Selma, Ala- 
 bama, in the name of Max Reis, re- 
 questing the plaintiff to send him a 
 telegraphic money-order for forty 
 
ON DELIVERY AND NON-DELIVERY. 
 
 329 
 
 suggestion of Park, J., was compromised, but that judge re- 
 marked, " that he was decidedly of opinion that in any case 
 
 dollars, immediately. The plaintiff 
 received the despatch, and, supposing- 
 it to he from his nephew of that name, 
 who was then on his way from New 
 York to Selma, paid the money to the 
 defendants, and received from them a 
 receipt as follows : " Received from 
 Joseph Meyer forty dollars. to be paid 
 to Max Eeis at Cincinnati, Ohio." 
 On the same day the defendant handed 
 over the money to the person who 
 sent the despatch to the plaintiff, who 
 was not known to the company's agent, 
 or identified as a person whose name 
 was Max Reis, and who, in fact, was 
 an impostor, and not the plaintiff's 
 nephew. The plaintiff had judgment 
 in the court below, but upon appeal 
 the judgment was set aside upon the 
 ground that, as there were no suspi- 
 cious circumstances to put the com- 
 pany upon further inquiry as to the 
 identity of the impostor, the company 
 could not be charged with negligence 
 in that respect, and therefore were not 
 liable for the money. Manning, J., 
 who delivered the opinion of the 
 court, and evidently dissented from 
 the opinion of a majority of the court, 
 after a line of reasoning which seems 
 to establish negligence on the part of 
 the company, says : " My brothers 
 think that, where there is nothing to 
 create suspicion in the minds of the 
 company's agents, it is for the person 
 on whom the demand is made to as- 
 certain for himself whether he who 
 makes it is the person he professes to 
 be, and that the company has no right 
 to refuse payment of the money to 
 him in reply to whose message the 
 order to pay it is sent. I was strongly 
 inclined to the other conclusion. But 
 the case is-a new one, and I defer to 
 their opinion." But in a New York 
 
 case, Elwood v. The Western Union 
 Telegraph Co., 45 N. Y. 549, a rule 
 adverse to that adopted in this case 
 was held. In that case a telegraph 
 operator at T. received a message 
 dated at E. and addressed to bankers 
 at P., which read as follows : " Key- 
 stone Bank will pay the check of T. P. 
 McCarthy to the amount of twenty 
 thousand dollars (120,000). J. J. 
 Town, Cashier of Keystone Bank." 
 The person presenting the message 
 was known to the operator by the name 
 of McCarthy, but no authority from 
 the cashier was shown. The message 
 was transmitted, and proved to be 
 fraudulent. It was held that the 
 operator was guilty of gross negli- 
 gence, for which the telegraph com- 
 pany was liable. 
 
 In a case before the United States 
 Circuit Court, Norwalk Bank v. The 
 Adams Express Co., 4 Blatchf. (U. S. 
 C. C ) 455, a doctrine in harmony 
 with that of the Ohio case was 
 adopted. In that case a party who 
 had fraudulently obtained possession 
 of a note which he altered as to the 
 time of payment, in order to procure 
 it to be discounted more readily, sent 
 it, in the name of another persoij, by 
 the defendant company, to be pre- 
 sented to the bank for discount. The 
 bank discounted the note, and the 
 proceeds were paid over to the de- 
 fendant, to be returned, as was under- 
 stood, to the person to whom the note 
 belonged. The company returned 
 the money, and turned it over to the 
 person from whom they received the 
 note, believing him to be the person 
 entitled to it. Under this state of facts 
 the court held that the defendants were 
 not liable for the money, as there was 
 nothing in the circumstances calcu- 
 
330 
 
 THE LAW OP CARRIERS. 
 
 where a female under age attempted an elopement with a per- 
 son disapproved of by those under whose guardianship she 
 
 lated to excite suspicion, or put them 
 upon inquiry as to the right of such 
 person to have the money. In a 
 Massachusetts ease, Dunbar v. Boston 
 & Providence R. R.«Co, 110 Mass. 26, 
 a similar doctrine was held in a case 
 where a person (an impostor) had 
 bought goods, representing himself as 
 another person who resided in P. 
 The goods were marked C. D., and 
 shipped over the defendants' road to 
 him air P. The impostor, who was 
 known to the defendants' agent at P. 
 by his real name, applied for them 
 as agent for C. D., who was not known 
 to the agent. The goods had been 
 stored for two weeks or so before they 
 were applied for. The goods were 
 delivered to the impostor without the 
 production of the bill of lading by 
 him, and he signed a receipt for them 
 in his true name. When the fraud 
 was discovered the plaintiff brought 
 an action against the company for the 
 goods. The court held that, under 
 the circumstances, the defendant was 
 not liable for the goods as for a mis- 
 delivery, inasmuch as the goods had 
 been delivered to the person who really 
 ordered them, and for whom they 
 werg intended. The person of whom 
 they were purchased, and who con- 
 signed them, sold them to the im- 
 postor personally. He knew to whom 
 he was selling them, although he did 
 not know him by his correct name ; 
 and the very person to whom he sold 
 them received them from the carrier ; 
 and if the plaintiff had been called 
 upon to identify the consignee person- 
 ally, the person who received the 
 goods must have been the one whom 
 he would have identified as purchaser 
 and consignee. If the goods are 
 ordered in a fictitious name, with an 
 
 intent to defraud, and are directed to 
 be sent to the address given at a cer- 
 tain street and number, and the goods 
 are so sent, and the carrier takes such 
 steps as he is required to take to 
 deliver them there, he cannot be held 
 chargeable as for a misdelivery, al- 
 though there is no such person or 
 firm doing business at that place. 
 Thus, in an English case, McKean 
 v. Mclvor, L. R. 6 Bxch. 36, goods 
 were ordered by an impostor named 
 Heddell, and addressed to a fictitious 
 firm at a given number and street; 
 upon the arrival of the goods at their 
 place of destination, the carrier ad- 
 dressed a notice to the consignee at 
 such street and number, and Heddell 
 indorsed the name of the fictitious 
 firm upon it, and obtained the goods. 
 In an action by the consignor against 
 the carrier for the loss of the goods, it 
 was held that he was not liable ; Mas- 
 tin, B., saying : " "When the plaintiff 
 thought fit to act upon the order 
 which Heddell had given in the 
 false name of C. Tait & Co., and gave 
 directions to the defendants to deliver 
 the goods to C. Tait & Co., at 71 George 
 Sir, Glasgow. I think that they affirmed 
 that there were such persons as C. 
 Tait & Co. at that place. That they 
 were led into that belief by the, fraud 
 of Heddell makes no matter ; they did 
 so state, in fact, and the carriers had 
 the right to assume that this state- 
 ment was correct, and have a right 
 now to say that the person to ■whom 
 they delivered the goods was, as he 
 was in fact, the person who repre- 
 sented himself to be C. Tait & Co. 
 But if the carrier delivers at the 
 place indicated, or does what is equiva- 
 lent to a delivery, he does all that he 
 is bound to do. He obeys the sender's 
 
ON DELIVERY AND NON-DELIVERY. 
 
 331 
 
 properly was, they (the guardians) would be perfectly justified 
 in preventing such elopement ; and it was equally clear to him 
 
 orders, and is guilty of no wrong. To 
 make him liable there must be some 
 fault. It is a question of fact, whether 
 there has been any such negligence as 
 makes him liable for the conversion of 
 the goods ; and where he has carried 
 out the directions of the sender, the 
 mere fact that he has delivered them 
 to some, person to whom the sender 
 did not intend delivery to be made, is 
 not sufficient to support the allegation 
 that he has converted them." 
 
 In Heugh o. London, &c. Railway 
 Co., L. B. 5 Exeh. 50, cited by the 
 author in, the preceding note, goods 
 were obtained from the plaintiff by 
 means of a fraudulent letter written 
 in the name of a company which had 
 ceased to do business, by a former 
 employee. The goods were taken 
 to the company's place of business, 
 and were refused, and, .according 
 to the usual course of business, an 
 advice note was sent to the company 
 at the place designated for delivery. 
 Some days after, the person who had 
 foTged the order upon which the goods 
 were obtained appeared at the carrier's 
 office, with an order for the goods 
 signed with the company's name,- bat 
 which was forged, directing the carrier 
 to deliver the goods to him, and they 
 were so delivered. In an action by 
 the consignor against the carrier to 
 recover for the conversion of the 
 goods on the ground of misdelivery, 
 it was held that the carrier was not 
 liable, as, after having tendered the 
 'goods at the appointed place, and hav- 
 ing sent the notice referred to, they 
 ceased to be common carriers, and 
 were only bound to act with reason- 
 able caution ; Kelly, C. B., saying : 
 " The plaintiffs contend that this was 
 a misdelivery, on the part of the 
 
 defendant, amounting to a conversion; 
 but no sufficient authority has been 
 cited in support of this position. It 
 is true that a misdelivery by a carrier 
 has been held to amount to a conver- 
 sion, but their character as carriers 
 had ceased, and whatever character 
 they filled, it was not that. Their 
 position has been not inaptly de- 
 scribed as that of involuntary bailees. 
 Without their own default they found 
 these goods in their hands, under cir- 
 cumstances in which the character of 
 carriers, under which they received 
 them, had ceased. Did they then, as 
 involuntary bailees, become subject to 
 an absolute duty to deliver to the 
 proper person, so as to be liable for 
 misdelivery, though without negli- 
 gence ? The only authorities in the 
 courts of this country cited in support 
 of that proposition, are Stephenson v. 
 Hart, and Duff ». Budd ; but in neither 
 ease was it held, or even contended, 
 that the misdelivery amounted, as a 
 matter of law, to a conversion ; but in 
 both cases it was admitted to be a 
 question for the jury, and the question 
 was, in fact, left to them, whether, 
 
 ant had acted with reasonable care. 
 It is plain, then, ou the authority of 
 those cases, that misdelivery under 
 such circumstances is not, as a mat- 
 ter of law, a conversion, and that it 
 is a question of fact for the jury, 
 whether the defendants have exercised 
 reasonable and proper care and cau- 
 tion. The jury have answered this 
 question in the affirmative, and they 
 are therefore entitled to keep their 
 verdict." 
 
 It is important, in the decision of 
 questions of this character to ascertain 
 whether, at the time of the alleged 
 
332 
 
 THE LAW OP CARRIERS. 
 
 that they would be justified in stopping her clothes. Being of 
 that opinion, he must have held, if the present case had not 
 
 misdelivery, the defendant occupied 
 the relation of carrier, or only that of 
 a warehouseman to the goods; because, 
 as is said in some of the cases, the 
 carrier, as such, is under the same 
 obligation or duty to clelioer the goods 
 safely that he is to carry them. 
 Winslow v. Vermont & Massachusetts 
 R. R. Co., 42 Vt. 700. They deliver 
 property at their peril, and must take 
 care that it is delivered to the right 
 party; for if the delivery be to the 
 wrong person, either by an innocent 
 mistake or through the fraud of third 
 persons, as upon a forged order, they 
 will be responsible, and the wrongful 
 delivery will be treated as a conversion. 
 McEntee v. New Jersey Steamboat Co., 
 45 N . Y. 34. But if they hold the goods 
 only as warehousemen, the authorities 
 are all agreed that he is only responsi- 
 ble where he fails to act with ordinary 
 care and prudence in reference to the 
 keeping or delivery of the goods ; and 
 it will be noticed that in some of the 
 cases, the gist of which has been given 
 in this note, more especially in fbe 
 English cases, this distinction is 
 drawn. In some of the States, as we 
 have seen, especially in Massachusetts, 
 the relation of carrier is held to cease 
 with the arrival of the goods at their 
 place of destination, and in others 
 when they are unloaded and properly 
 stored, and in others in a reasonable 
 time after notice is sent to the con- 
 signee of the arrival of the goods, 
 and he has had a reasonable time in 
 which to remove them ; and the rule 
 adopted in a given State upon this 
 point will necessarily have an impor- 
 tant bearing upon the question of 
 liability for misdelivery. Of course, 
 the determination of this question in 
 all the States depends upon the cir- 
 
 cumstance whether the carrier is a 
 carrier by rail or water, or whether 
 he belongs to that class, as express 
 companies, who are bound to deliver 
 to the consignee personally, as in the 
 case of carriers by rail and water the 
 liability of the carrier as such may, in 
 any event, be determined by a notice 
 to the consignee of the arrival of the 
 goods and the lapse of a reasonable 
 time for him to act upon the notice ; 
 while, as to the other species of car- 
 riers there must have been either a 
 tender of delivery, or at least an 
 attempt to deliver, or he must show 
 that he has made due and reasonable 
 inquiry and has been unable to find 
 the consignee. Witbeck v. Holland, 
 46 N. Y. 13. When these conditions 
 exist, the consignor, in order to charge 
 the carrier with liability for the loss of 
 the goods, must show that he has acted 
 negligently in respect to the matter 
 producing the loss ; or perhaps it should 
 be said that the carrier may show, to 
 protect himself from liability, that his 
 relation to the goods as carrier had 
 ceased, and that the loss ensued with- 
 out his fault or negligence. Neal ». 
 R. R. Co., 8 Jones (N. C), L. 4S2 ; 
 Fenner v. R. R. Co., ante; Fisk v. 
 Newton, 1 Deu. (N. Y.) 45 ; Weed v. 
 Barney, ante; Kremer v. Southern 
 Express Co., 6 Coldw. (Tenn.) 356; 
 Hudson v. Baxendale, 2 H. &. N. 575. 
 In determining whether a carrier who 
 is bound to make a personal delivery 
 has made such reasonable inquiry to 
 find the consignee, so that his liability 
 as a carrier has ceased, depends upou 
 the circumstances of each case ; and in 
 determining this question it is compe- 
 tent to show whether or not the con- 
 signee was well known at the place to 
 which the goods were consigned. In 
 
ON DELIVERY AND NON-DELIVEEY. 
 
 333 
 
 been compromised, that the carrier was guilty of no tortious 
 conversion in delivering up the plaintiff's clothes to her 
 mother." 
 
 Witbeck v. Holland, 45 N. Y. 13, this 
 question was considered under the 
 following circumstances : The plaintiff 
 delivered to the Adams Express Co., 
 at Hart's Island, N. Y., the sum of 
 $320, addressed and to be delivered 
 to "Martin Witbeck, Schenectady, 
 N. Y." The agent of the Express 
 Co. gave a receipt for the package, 
 " upon the special acceptance and 
 agreement that this company is to 
 forward the same to its agent nearest 
 
 or most convenient to destination 
 only, and there to deliver the same to 
 other parties to complete the transpor- 
 tation, such delivery to terminate all 
 liability of this company for such 
 package." The package was delivered 
 on the 5th of December by the Adams 
 Express Company to the defendant 
 company at its office in New York, the 
 latter giving the following receipt to 
 the former company : — 
 
 Received, New York, December 5, 1864, of Adams Express Company (per 
 bills), in good order, the following articles set opposite our respective names: 
 
 ARTICLES. 
 
 Dollars. 
 
 Cents. 
 
 Consignee. 
 
 Where 
 from. 
 
 Destination. 
 
 Amount 
 Charged. 
 
 By whom 
 received. 
 
 Pck. 
 
 $320. 
 
 • 
 
 Martin 
 Witbeck. 
 
 H. I. 
 
 Schenectady, 
 N. Y. 
 
 $1.75. 
 
 Myers. 
 
 Myers was the authorized agent of 
 the defendant company. The package 
 was transported to Schenectady in due 
 time, and the local agent of defendant 
 company, with a view to making de- 
 livery, looked into the directory, but 
 did not find the name Martin Witbeck, 
 although said Witbeck was a resident 
 of Schenectady at that time and for 
 some time afterward. The efforts of 
 the agent were then directed to finding 
 the consignee, but it appears that his 
 inquiries were for Martin Whitbeck 
 instead of Martin Witbeck. The pack- 
 age was deposited in the company's 
 safe a few days afterward, where it 
 remained until January 17, 1865, when 
 the safe was burglarized and the pack- 
 age stolen. The referee found, further, 
 that defendant company was bound to 
 make delivery of the package to Mar- 
 tin Witbeck personally, or at his place 
 of business or residence ; that defend- 
 ant company did not make due effort 
 
 to make such delivery; and that plain- 
 tiff should recover the amount of the 
 package, with interest. Judgment 
 was entered on the report, from which 
 the defendant appealed to the general 
 term, where it was affirmed. An ap- 
 peal was then taken to the Court of 
 Appeals.. 
 
 Geover, J., in delivering the opinion 
 of the court, said : " The facts found 
 by the referee showed beyond question 
 that the defendant was a common car- 
 rier, and responsible, as such, for prop- 
 erty delivered to it for transportation. 
 This finding was warranted by the 
 evidence. It was engaged in transact- 
 ing a general express business. It is 
 insisted by the counsel for the defend- 
 ant that its liability was restricted by 
 the contract, proved by the receipt 
 given by the Adams Express Company 
 to the plaintiff, upon the receipt of the 
 money from him by it at Hart's Island. 
 From this receipt it appears that the 
 
334 
 
 THE LAW OP CARRIERS. 
 
 SEC. 265. Proof of Non-delivery. — Still, where the duty is 
 not dispensed with by circumstances such as those just de- 
 
 latter company undertook to forward 
 the package to its agent nearest to its 
 destination, there to deliver it to other 
 parties to complete the transportation, 
 such delivery to terminate all liability 
 of that company for its passage. There 
 is nothing in this or any other restric- 
 tion at all affecting the liability of the 
 defendant as a common carrier; all the 
 restrictions found in the receipt are 
 by the language limited to the liability 
 of the Adams Company. Indeed, were 
 they applicable to the defendant, they 
 would not affect the liability of the 
 defendant in the action, as they do not 
 include the cause of the loss, unless 
 they relieve the carrier from the duty 
 of delivery to the consignee. The first 
 inquiry is, whether it was the duty of 
 the carrier so to deliver the package 
 iu the absence of any restriction. Car- 
 riers by land are bound to deliver or 
 tender the goods to the consignee at 
 his residence or place of business, and 
 until this is done they are not relieved 
 from responsibility as carriers. 2 
 Kent's Com. 605 ; Augell on Carriers, 
 § 295 ; Gibson v. Culver, 17 Wend. 305 ; 
 Eisk v. Newton, 1 Den. (N. Y.) 45. 
 But when goods are safely conveyed 
 to the place of destination, and the 
 consignee cannot, after reasonable 
 effort, be found, the carrier may dis- 
 charge himself from further respon- 
 sibility by depositing the property in 
 a suitable place for the owner. Fisk 
 v. Newton, supra. Carriers by ves- 
 sels, boats, and railways are exempt 
 from the duty of personal delivery. 
 Redfield on Railways, § 127 ; Thomas 
 v. Boston R. R. Co., 10 Met. (Mass.) 
 472. Such carriers discharge them- 
 selves from responsibility, as such, by 
 transporting the goods to their nearest 
 business station to the residence or 
 
 place of business of the consignee, and 
 notifying the consignee of their readi- 
 ness to deliver the goods at such sta- 
 tion, after the lapse of a reasonable 
 time for him to receive them. But 
 this exemption does not extend to 
 express companies, although availing 
 themselves of carriage by rail. Red- 
 field on Railways, § 127. These were 
 established for the purpose of extend- 
 ing to the public the advantages of 
 personal delivery enjoyed in all cases 
 of land carriage prior to the introduc- 
 tion of transportation by rail. 
 
 "It appeared in the present case 
 that the defendant had its vehicles by 
 which they carried articles to the con- 
 signees in the city of Schenectady, , 
 which had arrived there by rail under £ 
 contracts with the company for the 
 transportation. This is the usual 
 course of transacting business by suck 
 companies; were it otherwise the busi. 
 ness done by these companies would 
 be greatly diminished, as it would be 
 equally advantageous in many cases to 
 have the property transported by the 
 railroad company. When the defend- 
 ant received the package from the 
 Adams Company at New York, con- 
 signed to Martin Witbeck, Schenec- 
 tady, it became liable as carrier for its 
 carriage to Schenectady and its deliv- 
 ery to Witbeck there, if with reason- 
 able diligence he could be found. The 
 performance of this entire service was 
 contracted for by its receipt so ad- 
 dressed, and had the defendant re- 
 ceived it from the plaintiff at New 
 York and given him a receipt for its 
 transportation, the obligation to make 
 personal delivery at Schenectady would 
 have been incurred. The only remain- 
 ing question arises upon the exception 
 taken to the finding by the referee, as 
 
ON DELIVERY AND NON-DELIVERY. 
 
 335 
 
 scribed, or by other circumstances, which we shall have occa- 
 sion to consider, it must be performed strictly ; and it has been 
 
 a fact, that the defendant did not make 
 due effort, nor use due diligence to 
 find said Martin Witbeck, the consignee 
 of said package. It is» insisted by the 
 counsel for the appellant, that the 
 question, what is reasonable diligence, 
 is one of law. That may be so when 
 there is no conflict in the evidence of 
 controversy as to the facts to be in- 
 ferred therefrom. But that is not this 
 case, nor will most eases of this class 
 be of that description. In most, if 
 not all, the questions will be mixed, 
 both of fact and law. In the present 
 case the finding of the referee was 
 dearly correct. The diligence which 
 the law required of the defendant was 
 such as a prudent man would have 
 used in an important business affair of 
 his own. The evidence shows that 
 the defendant was so inattentive as to 
 mistake the surname of the consignee. 
 Although the package was addressed 
 Witbeck, all its inquiries were made 
 for Whitbeck. This may have pre- 
 vented their finding him. It further 
 appeared that its inquiries were con- 
 fined to a few persons in the vicinity 
 of its place of business, and that by 
 these it obtained information of other 
 persons of a like surname, one of 
 whom was the father of the consignee. 
 Surely inquiry should have been made 
 of these persons; and had it been so 
 made, delivery would have been made, 
 and the loss would never have occurred. 
 There is nothing in the point that the 
 negligence of the plaintiff in not giving 
 further information as to the residence 
 of the consignee contributed to the 
 loss. The defendant accepted the 
 package, addressed as it was, and 
 failed in the performance of the duty 
 imposed thereby. For such failure it 
 is responsible, irrespective of the right 
 
 of the plaintiff to give additional infor- 
 mation. I have examined the various 
 exceptions taken by the appellant to 
 the rulings of the referee as to the 
 competency of evidence. The question 
 whether the consignee was well known 
 in Schenectady was proper. The 
 plaintiff had the right to prove this 
 fact if he could. But the testimony 
 given in answer was not material. 
 None of the testimony excepted to 
 could have prejudiced the defendant. 
 The judgment appealed from must be 
 affirmed." 
 
 If a carrier takes goods through 
 mistake for transportation over its 
 line which were intended for trans- 
 portation over another line, and for 
 which no compensation could ba 
 charged, it is nevertheless bound to 
 the same degree of diligence, and sub- 
 ject to the same duties and liabilities 
 in reference to its trausportation and 
 delivery, as though it had been regularly 
 shipped over such line. This rule, is 
 illustrated in Fairfax v. New York Cen- 
 tral R. R. Co., 73 N. Y, 167, 29 Am. 
 Rep. 119. The plaintiff purchased at 
 Montreal, of the Grand Trunk' R. R. 
 Co., a ticket for the city of New York 
 by way of rail to Troy or Albany and 
 thence by steamboat to New York. 
 His portmanteau was checked by the 
 same route. At Troy a railroad agent 
 delivered the portmanteau to the de- 
 fendant, and the latter carried it to 
 New York on its railway, and put it 
 in its baggage-room. Three days after- 
 wards, as soon as the plaintiff had 
 reason to believe that the defendant 
 had it, he demanded it, but it could 
 not be found. It contained thirty- 
 nine sovereigns and some partly worn 
 clothing. The court held that the 
 defendant, having taken the portman- 
 
336 
 
 THE LAW OP CARRIERS. 
 
 sufficient to prove non-delivery, that the consignor should state 
 that he gave the goods to the carrier's servant, properly 
 
 teau without the plaintiff's knowledge 
 or assent, was responsible for its con- 
 tents without regard to their character. 
 Eael, J., said : " The delivery of the 
 baggage to the defendant was the 
 wrongful act of the agent of the Rens- 
 selaer & Saratoga R. R. Co. He was 
 not the agent of the plaintiff. The 
 various railroad companies which had 
 contracted to carrj him were not his 
 agents. They were contractors with 
 him, and owed him the duty of carry- 
 ing him and his baggage as they had 
 agreed. Their employees were not his 
 agents in any sense that would enable 
 them to bind him by their acts. The 
 defendant had no right to take and 
 carry this baggage. It was bound to 
 know by the marks on the checks that 
 it was to be carried by another route. 
 But it took the baggage for transpor- 
 tation to New York, and was therefore 
 bound to carry it safely, and when it 
 reached New York was bound to de- 
 liver it to the plaintiff upon demand. 
 It there placed the baggage in its bag- 
 gage-room on the afternoon of October 
 9th, and it remained there until the 
 morning of the 12th. Between eight 
 and twelve o'clock of that day the 
 plaintiff demanded his baggage, and it 
 could not be found. 
 
 "As was decided, when this case 
 was here upon the prior appeal, the 
 defendant incurred at least the respon- 
 sibility of a warehouseman. Fairfax 
 v. 'New York Central & Hudson 
 River R. R. Co., 67 N. Y. 11. That 
 responsibility required of it ordinary 
 care in the keeping and delivery of the 
 baggage; and it was before decided 
 upon the facts, as they then appeared, 
 that it was a question of fact for the 
 jury whether the defendant took such 
 care. The facts upon the second trial 
 
 were not materially changed. They 
 were at least not so far changed that 
 the court could, as matter of law, say 
 that the defendant was not guilty of 
 culpable negligence. The plaintiff de- 
 manded his baggage, and that cast 
 upon the defendant the burden of ac- 
 counting for it in some way. It was 
 bound to show that it had disappeared 
 from its baggage-room without its 
 fault. This it attempted to do, but it 
 failed to show clearly what became of 
 it. It was either stolen or misdelivered. 
 It was under all the circumstances for 
 the jury to determine which. If it 
 was misdelivered, then the defendant 
 became liable for it. The plaiutiff can- 
 not be charged with any negligence iu 
 not claiming his baggage sooner. As 
 soon as he reached New York, and 
 had reason to believe that his baggage 
 had been carried over defendant's road, 
 he called for it, and demanded it. He 
 thus certainly discharged any duty he 
 owed the defendant, which had taken 
 and carried his baggage and placed it 
 in its baggage-room without his knowl- 
 edge or assent. The general charge 
 of the court to the jury was as favor- 
 able to the defendant as the law re- 
 quired. But several exceptions to the 
 charges, and refusals to charge, were 
 taken, which must be briefly noticed: 
 "First. The court refused to charge 
 that the relation of carrier to a pas- 
 senger and his baggage did not exist 
 between plaintiff and defendant. This 
 refusal was proper. The matter was 
 wholly immaterial. I am inclined to 
 think that the defendant, in taking and 
 conveying this baggage, without the 
 knowledge or assent of the plaintiff, 
 might be treated as having voluntarily 
 assumed the responsibility of a com- 
 mon carrier. And whether it might 
 
ON DELIVERY AND NON-DELIVERY. 
 
 337 
 
 addressed to the consignee, and that the consignee's servant 
 should state that he did not know of the delivery, and be- 
 lieved, that the parcel could not be delivered without his knowl- 
 edge. 1 And evidence that the weight or amount of goods 
 delivered to the consignee is less than the weight or amount 
 
 or not, it is sufficient for this action 
 that it assumed at least the respon- 
 sibility of a warehouseman, and that 
 imposed upon it the duty of ordinary 
 care; and hence, also, the court did 
 not err in refusing to charge that the 
 defendant was liable only for loss 
 caused by gross negligence. 
 
 " Second. The court charged the jury 
 that the defendant was not liable for 
 the loss of the baggage, if it exercised 
 ordinary care, whether such loss was 
 from theft or a misdelivery, and hence 
 all the charge requested in reference 
 to a reasonable time for the plaintiff 
 to claim the baggage was wholly im- 
 material. The defendant had this bag- 
 gage without plaintiff's knowledge or 
 assent, and he claimed it as soon as he 
 knew where it was, and he could not, 
 therefore, be charged with any delay 
 or default. 
 
 "Third. In the plaintiff's portman- 
 teau were thirty-nine English sov- 
 ereigns, worth $218.40, and the court 
 charged the jury that they should 
 allow the value of the sovereigns, if 
 they found that the amount of them 
 was a proper, reasonable, and necessary 
 amount for the plaintiff to carry with 
 him in his portmanteau for his journey; 
 and in deciding this point that they 
 should take into consideration the 
 position and circumstances of the 
 plaintiff, the length and character of 
 his journey, the contingencies and 
 accidents that might naturally arise, 
 and the fact that he was in a foreign 
 country. The defendant excepted to 
 this, and asked the court to charge 
 that it was not liable for the sovereigns. 
 
 The charge, as made, was at least as 
 favorable to defendant as the law re- 
 quired. The plaintiff did not deliver 
 this portmanteau to the defendant for 
 carriage, and in no way practised upon 
 the defendant any fraud as to its con- 
 tents. He had no opportunity to 
 inform defendant of the contents. It 
 took the portmanteau without bis 
 knowledge or assent, and was bound 
 to care for it, and its contents, no 
 matter what they were. 
 
 " Fourth. The court did not err in 
 charging the jury that the plaintiff 
 was entitled to recover the full value 
 of clothing for use to him, in New 
 York, and not merely what it could be 
 sold for in money. The clothing was 
 made to fit plaintiff, and had been 
 partly worn. It would sell for but 
 little, if put into market to be sold for 
 second-hand clothing, and it would be 
 a wholly inadequate and unjust rule 
 of compensation to give plaintiff, in 
 such a case, the value of the clothing 
 thus ascertained. The rule must be 
 the value of the clothing for use by 
 the plaintiff. No other rule would 
 give him a compensation for his dam- 
 ages. This rule must be adopted, be- 
 cause such clothing cannot be said to 
 have any market price, and it would 
 not sell for what it was really worth. 
 We do not mean to say that the de- 
 fendant incurred no greater respon- 
 sibility than that of a wai-ehouseman. 
 It may be that it was absolutely liable 
 for this baggage upon the theory that 
 its interference therewith was wholly 
 unauthorized and wrongful." 
 1 Griffiths v. Lee, 1 C. & P. 110. 
 
338 THE LAW OP CAEEIEE8. 
 
 of goods delivered to the carrier is sufficient primd facie evi- 
 dence to charge the latter for the deficiency, or to call on him 
 to show that it did not arise from his negligence. 1 In another 
 case, which was tried at Exeter in 1862, before Channell, B., 
 the question as to what constitutes proof of delivery was con- 
 sidered. The learned judge left it to the jury to say whether 
 there had been a delivery or not, and upon a motion for a new 
 trial, it was held that there had been no misdirection, and that 
 in proving the delivery of goods by a carrier, it is necessary 
 to show an actual delivery into the possession of the consignee 
 or his servants, although it may not be necessary to give evi- 
 dence of delivery into their hands. 2 
 
 SEC. 266. When Non-delivery excused. — Having considered 
 the duty of delivery, what will constitute such a delivery as 
 will discharge a carrier from his liability for the goods, and 
 also as to the proof of delivery or non-delivery, we are now in 
 a position to consider under what circumstances non-delivery 
 of the goods consigned will be excused or justified. With 
 regard to the excuses which will exonerate a carrier, whether 
 he be a common carrier, a carrier for hire who is not a com- 
 mon carrier, or a gratuitous carrier, — in cases where, in the 
 first, the loss arises from an act of God or from the inter- 
 ference of enemies, where, in the second, the loss arises from 
 no want of ordinary diligence, and where, in the third, the loss 
 arises when it cannot be ascribed to his gross negligence, the 
 reader must be referred to a former chapter. 3 And as to those 
 cases where, owing to the limitation of the responsibility of a 
 common carrier by statute or by special contract, the circum- 
 stances under which non-delivery will be excused, the reader 
 must also have recourse to a portion of this work already 
 written. 4 
 
 SEC. 267. Countermand by Consignor, when it may be 
 made. — It is, of course, within the power of the owner to alter 
 his mind with regard to the destination of his own goods. It 
 
 1 Hawkes v. Smith, C. & M. 72. 2 Evans v. Bristol & Exeter Rail. 
 See also Gilbert v. Dale, 5 Ad. & El. Co., 10 W. R. 359. 
 543. " Ante, pp. 16, 30, 42. 
 
 4 Chapter vii. 
 
ON DELIVERY AND NON-DELIVERY. 339 
 
 was he who gave them a destination in the hands of the car- 
 rier, and he may, if he chooses, countermand his first order. 
 Such a countermand will, of course, justify a non-delivery upon 
 the part of the carrier, and it has been expressly decided that 
 such a countermand may be given at any time during the 
 transit. 
 
 SEC. 268. Carrier's Compliance with Request to return. — 
 Contract to carry according to Owner's Directions. — The Con- 
 signor may, therefore, demand back his goods ; but when he 
 does so' he must be prepared to pay the carriage. This request 
 must be complied with, except where the unpacking and re- 
 delivery would be productive of much inconvenience to the 
 carrier. 1 Where, therefore, a package containing goods, and 
 marked " Scotthorn and Co., to the Bast India Docks, passen- 
 ger ship, Melbourne, Australia," was sent by the plaintiffs to 
 the Great Bridge Station of the defendants, the South Stafford- 
 shire Railway Company, to be taken to London for hire, and 
 the practice of the South Staffordshire Company was, that 
 goods delivered at that station for London were conveyed by 
 their line as far as Birmingham, and thence by the London 
 and North-Western Railway, and it appeared that before the 
 goods in question arrived in London, one of the plaintiffs 
 delivered to a clerk at the Euston Station of the London and 
 North-Western Railway a written order, directing that they 
 should be sent to Ratcliffe Highway, and this order was not 
 complied with, it was held that the plaintiffs were entitled to 
 countermand the directions originally given by them, — that 
 the clerk at the Euston Station was an agent of the defendants 
 having authority to receive the countermand, — and that the 
 defendants were liable for a loss occasioned by their non-com- 
 pliance with the second order. Alderson, B., in giving judg- 
 ment, stated that the whole question was, " What was the 
 contract between the parties?" "That," he said, "actually 
 amounts to a question of fact. Now there is abundant evi- 
 dence to show that the contract was, as stated in the declara- 
 tion, to carry according to the directions of the plaintiffs. It 
 
 1 Scotthorn v. South Staffordshire Rail. Co., 8 Exch. 341 ; 22 L. J. Esch. 
 121 ; 7 Rail. Cas. 810. 
 
340 THE LAW OP CAEEIEES. 
 
 is very true that originally, when the defendants were put in 
 possession of the goods, the orders were to take them to the 
 East India Docks, but before their arrival in London, the plain- 
 tiffs, having changed their intentions, communicated that 
 change to the agents of the defendants in London, who had 
 authority to deliver the goods. The altered directions were : 
 ' Do not send the things to the place marked on the outside of 
 the packages, but transmit them elsewhere.' The question is 
 not whether the clerk had power to make a new contract on 
 behalf of the defendants,' — it is enough that he was tbld not 
 to send them according to the written directions. By some 
 neglect, the instructions were not obeyed, — the articles are 
 sent to Australia, and lost. Then, have the defendants per- 
 formed their contract ? I think there is ample evidence to go 
 to the jury to show that they have not, and that the verdict is 
 therefore right." Platt, B., concurred. He said : " The dec- 
 laration states that the defendants received the goods to be 
 delivered according to the plaintiff's directions ; that mean3 
 that they were to have some control over them, and might 
 stop them in any part of their transit. ... If a carrier under- 
 takes 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 owner of the goods." 1 
 
 SEC. 269. Delivery at Place appointed by Consignee. — But 
 while the consignor has the right to alter the destination of 
 the goods, a similar power is vested in the consignee. And a 
 delivery at any place appointed by the consignee will discharge 
 the carrier from his liability, even although it should not be the 
 place appointed by the owner or shipper thereof. 2 Thus 
 the plaintiff, having sold wheat by sample, to be delivered to 
 the purchaser at his mill, sent it by the defendants' railway. 
 On the arrival of the wheat at a station two miles from the 
 
 1 Scotthorn v. South Staffordshire 2 London & North-Western Kail. 
 
 Rail. Co., 8 Exch. 341 ; 22 L. J. Exch. Co. v. Bartlett, 7 H. & N. 400 ; 8 Jur. 
 
 121 ; 7 Rail. Cas. 810. See also Lewis n. s. 58 ; 31 L. J. Exch. 92 ; 10 W. R. 
 
 ». Galena, &o. R. R. Co., 40 111. 281. 109 ; 5 L. T. N. s. 399. 
 
ON DELIVERY AND NON-DELIVERY. 341 
 
 mill, the defendants kept it there in consequence of instruc- 
 tions given to them by the consignee, that wheat arriving for 
 him at the station should not be forwarded to the mill without 
 his written order. The plaintiff had no knowledge of these 
 instructions. The consignee examined the wheat at the 
 station, but refused to accept it, and while it remained there 
 it became deteriorated in quality and value. 
 
 SEC. 270. Non-delivery by Order of Consignee.. — In the 
 case last cited it was held that the consignor had no action 
 against the defendants for not delivering the wheat at the mill, 
 as the non-delivery was by the order of the consignee. There- 
 fore we see that the order of the consignee can change the 
 place at which a good and reasonable delivery, discharging the 
 carrier from his liability, can be made. Pollock, C. B., said 
 in this case : " It is, I think, quite clear that the consignee of 
 goods may receive at any stage of the journey; and I think 
 that if -the consignor directs goods to be delivered at a particu- 
 lar place, it is no contract to deliver the goods at that place, 
 and not elsewhere. The contract is to deliver the goods there, 
 unless the consignee shall require them to be delivered at 
 some other place." Beamwell, B., also remarked : " I think 
 it would probably create a laugh anywhere, except in a court 
 of law, if it was said a carrier could not deliver to the con- 
 signee short of the particular place specified by the consignor. 
 The goods are intended to reach the consignee, and provided 
 they reach him to his satisfaction, it is immaterial where that 
 place may be ; and the consignor cares very little whether it 
 be at one place or another. The obvious meaning of the con- 
 tract is to deliver to the consignee at the place mentioned, 
 unless the consignee chooses, and the carrier is willing, that 
 they should be delivered somewhere else." 1 
 
 SEC. 271. Duty discharged by Payment of Damages. — But 
 there are many other possible circumstances, concerning which 
 a question might arise, as to whether they could be regarded 
 as equivalent to delivery. Thus it would seem that if the 
 
 1 London & North- Western Rail, to this subject, Pollard v. London & 
 
 Co. v. Bartlett, 7 H. & N. 400; South- Western Bail. Co., 22 L. T. n. s. 
 
 31 L. J. Exch. 92 ; 10 W. R. 109 ; 551. 
 8 Jur. ». s. 58. See also, with regard 
 
342 THE LAW OP CARRIERS. 
 
 carrier, believing the goods to have been lost, paid damages to 
 the owner, and he subsequently discovered that the goods were 
 safe, he would not then be bound to deliver them. 
 
 Sec. 272. Claim of Ownership. — Most difficulty has arisen 
 in cases where, while the goods were still in the hands of the 
 carrier, they have been claimed by some one not the bailor, 
 who asserted his ownership. If the carrier, under such cir- 
 cumstances, delivered the goods to their actual owner, would 
 that terminate his liability to the bailor, which, under ordi- 
 nary circumstances, is only discharged by delivery to the 
 consignee ? In the case of Crouch v. Great Western Railway 
 Company, 1 Matjle, J., said : " An agent must account to his 
 principal, and cannot set up the jus tertii in an action by his 
 principal against him." 
 
 SEC. 273. Carrier cannot dispute Bailor's Title. — It fol- 
 lows from this that a carrier cannot, any more than an ordinary 
 bailee, dispute his bailor's title. This is especially clear in 
 cases where the adverse claim is not asserted by the real 
 owner, but is asserted by the carrier, of his own mere motion. 2 
 He holds for his employer, and if a third party sets up a 
 claim, he will admit it at his peril. In the case of Ogle v. 
 Atkinson, 3 however, it was held that a warehouseman, who 
 has received goods from a consignee, who has had actual 
 possession of them, to be kept for his use, may nevertheless 
 refuse to deliver them if they are the property of another. 
 This decision, however, seems bad, both in the light of reason 
 and in the light of some more recent cases. 
 
 Sec. 274. General Rule. — The general rule, that an agent 
 has no right to set up an adverse title against that of his prin- 
 cipal, and that it is the duty of the bailee to redeliver the 
 goods to the person who intrusted them to him, is well estab- 
 lished. 4 On the other hand, the bailee must not give up the 
 goods which actually belong to a third person, if he have 
 
 1 26 L. J. 420 Exch. Kieran v. Sandars, 6 Ad. & El. 515; 
 
 2 See Skelbury v. Scotsford, Yelv. Gosling v. Birnie, 7 Bing. 339 ; Holl 
 23 ; Wilson v. Anderton, 1 B. & Ad. v. Griffin, 10 Bing. 246 ; Burroughs*. 
 450. Bayne, 29 L. J. 185 Exeli. See also 
 
 8 5 Taunt. 759. Story on Agency, § 217, and Story on 
 
 4 Laclougli v. Towle, 3 Esp. 115; B'ailm. §§ 450/582. 
 
ON DELIVERY AND NON-DELIVERY. 343 
 
 notice of the fact, to the person who bailed them to him. And 
 if he does so, and the actual owner brings an action against 
 the carrier, he will be liable if the bailor had no title. 1 
 
 SEC. 275. Bailee's Situation. — In the case of Wilson v. 
 Anderton, 2 which was a case in which the captain of a ship, 
 who had taken goods on freight, and claimed to have a lien 
 upon them, delivered them to a bailee, and where, upon the 
 real owner demanding them from the latter, and upon his 
 refusing to deliver them without the direction of the bailor, 
 it was held that, the bailor not having any lien upon the goods, 
 the refusal by the bailee was sufficient evidence of conversion. 
 Lord Tenterden, C. J., said : " A bailee can never be in a 
 better situation than the bailor. If the bailor has no title, 
 the bailee can have none, for the bailor can give no better 
 title than he has. The right to the property may 'therefore 
 be tried in an action against the bailee, and a refusal like that 
 stated in the case has always been considered evidence of con- 
 version. The situation of a bailee is not without remedy. 
 He is not bound to ascertain who has the right. He may file 
 a bill of interpleader in a Court of Equity. 3 But a bailee 
 who forbears to adopt that mode of proceeding, and makes 
 himself a party by retaining the goods for the bailor, must 
 stand or fall by his [the bailor's] title." The questions in- 
 volved in this subject were fully discussed in Sheridan v. The 
 New Quay Company. 4 In that case a person who was resi- 
 dent in Manchester contracted to buy of Messrs. George & 
 James Donaldson, of Corsack, near Dumfries, a quantity of 
 oak-bark, to be shipped " for delivery at Liverpool." Messrs. 
 George & James Donaldson accordingly shipped the bark to 
 be delivered at Liverpool to the defendants, who were wharf- 
 ingers and carriers there, to be by them forwarded to the 
 person who gave the order in Manchester. The bark was to 
 be paid for in cash, and Messrs. G. & J. Donaldson sent a bill 
 
 1 If goods are taken from the bailee 188; Van Winkle v. U. S. Mail Steam- 
 by the authority of the law, that will ship Co., 37 Barb. (N. Y.) 122. 
 excuse delivery, and be a defence to an 2 1 B. & Ad. 450. 
 action brought against him by the 3 See, however, 1 & 2 Will. IV. 
 bailor for non-delivery. Blivenu.Hud- c. 58. 
 sonRiverR. R. Co., 35 Barb. (N. Y.) 4 4 C. B. n. s. 618. 
 
344 THE LAW OP CARRIERS. 
 
 of lading, making it deliverable to Cooper (the person sending 
 the order), or his assigns, together with a bill of exchange 
 payable on demand, through his bankers, to the Manchester 
 and Salford Bank, with instructions to present the bill for 
 acceptance. The bank at Manchester were unable to find 
 Sheridan, and accordingly they returned the bill of lading 
 and the draft to Messrs. G. & J. Donaldson. Before the bill 
 of lading had been so returned, Messrs. Donaldson, who were 
 at Liverpool when the bark arrived there, believing, from the 
 representations of an agent of the plaintiff (who had bought 
 the bark of Cooper), that the bill of lading had been duly 
 handed over to Cooper, assented to the bark being delivered 
 to the defendants, for the purpose of its being carried to Man- 
 chester for the plaintiff, but upon subsequently discovering 
 that Cooper had not got the bill of lading, or paid for the 
 bark, Messrs. Donaldson claimed and received it from the de- 
 fendants. It was held in this case that the property in the 
 bark never passed to Cooper, and consequently that Messrs. 
 Donaldson had a right to countermand the .delivery, and that 
 it was competent to the defendants, although they had re- 
 ceived the bark to be carried for the plaintiff, to set up the 
 title of Messrs. Donaldson in an action brought against them 
 by the plaintiff. 
 
 Sec. 276. Bona fide Delivery of Goods not belonging to 
 Bailor. — Where a carrier has received goods from a wrongful 
 owner, and has done his duty by the goods, and delivered 
 them to the consignee before he is made aware that the bailor 
 was not the rightful owner, he cannot, of course, be held liable 
 to the latter. Any such liability, if it existed, would be an 
 intolerable hardship upon the carrier. But further, it would 
 appear that even notice of the real ownership will not necessi- 
 tate the carrier to retain the goods in his possession for the 
 real owner. He does not, by any actual or constructive knowl- 
 edge of the right of a third party, thereby become a trustee for 
 that third party, as against the consignee ; and it appears that 
 even under such circumstances, and with such information, he 
 will not be liable if he delivers the goods to the consignee, 
 unless he does so under circumstances of fraud. 
 
ON DELIVERY AND NON-DELIVERY. 345 
 
 Sec. 277. Rule in White v. Bartlett. — Thus, in a case 
 where the defendant, an auctioneer, employed a person named 
 Catling, who was in embarrassed circumstances, to sell his 
 property, and the defendant sold and paid the proceeds to 
 Catling's order, Catling having shortly afterwards been de- 
 clared insolvent, it was held that the defendant was not 
 liable to White, the assignee of Catling, although the defendant, 
 when he sold the property, was aware of Catling's embarrass- 
 ment. 1 And in a case which is reported in a foot-note to that 
 just referred to, a similar decision was given. 2 The defendant 
 in that case was employed to sell, as auctioneer, certain goods 
 then in the plaintiff's possession. Before the sale, a notice 
 was given to the defendants, by the assignees of an insolvent, 
 that the goods were their property as such assignees, and that 
 they had been fraudulently removed by collusion between the 
 plaintiff and the insolvent. The defendant, after that notice, 
 sold the property, and rendered an account of the sale to the 
 plaintiff. At the trial, the jury affirmed the right of the 
 assignees, and found that the plaintiff obtained possession of 
 the goods by fraud between him and the insolvent, and, upon 
 that state of the facts, were directed by Patteson, J., to find 
 a verdict for the defendant, with liberty to the plaintiff to 
 move to enter a verdict for the amount of the sale in case the 
 court should be of opinion that it was not competent for the 
 defendant, in the peculiar situation in which he stood to 
 the plaintiff, to set up the right of the assignees upon the 
 present occasion. It was accordingly moved to enter a ver- 
 dict for the plaintiff, on the ground that an agent must 
 account to his principal, and cannot set up the jus tertii in 
 an action by his principal against him. 3 
 
 In giving judgment, Alderson, B., said: "We think the 
 
 1 White v, Bartlett, 9 Bing. 378. 344 ; Dixon v. Hamond, 2 B. & Aid. 
 
 a Hardmana. WiUcock, 9 Bing, 382. 310 ; Roberts v. Ogilby, 9 Price, 269 ; 
 
 This case was argued in the Common Gosling v. Bernie, 7 Bing. 339. But 
 
 Pleas at Lancaster before Aldekson see Taylor v. Plumer, 3 M. & S. 5f>2. 
 
 and Patteson, JJ. See also American cases, King v. Bich- 
 
 8 He relied on Nicolson v. Knowles, ards, 6 Whart. (Penn.) 418 ; Bates v. 
 
 5 Mad. 47 ; Meyler v. Fitzpatrick, 6 Stanton, 1 Duer (N. Y.), 79. 
 Mad. 360 ; Stonard v. Dunkin, 2 Camp. 
 
346 THE LAW OP CARRIERS, 
 
 direction of the judge right, and that the verdict ought to 
 stand. There are many authorities which were cited for the 
 plaintiff, which establish, no doubt, that an agent must ac- 
 count to his principal, and cannot set up the jus tertii in an 
 action by his principal against him. . . . But we think that 
 all these cases are - distinguishable from the present upon the 
 ground that here the jury have found that the plaintiff's pos- 
 session of the goods arose out of fraud, concerted between him 
 and the insolvent. . . . And we think that the plaintiff, who 
 takes the goods by a fraud between him and the insolvent, 
 can be in no better situation than the insolvent himself. . . . 
 We are, therefore, glad that this case can be thus decided con- 
 sistently with the general rules of law, as it is obviously in 
 conformity to the substantial justice of the particular case." 
 
 SEC. 278. Carrier's Position. — Interpleader Act. — The 
 position of the carrier, therefore, in cases where the title to 
 the goods in his possession is disputed, is not altogether sat- 
 isfactory. In a case where a dispute as to ownership arises, 
 the bailee will be held liable, both to the bailor and to the 
 actual owner. In an action by the latter, he cannot set up 
 the bailment from the wrongful bailor, and in an action by 
 the former, he cannot set up an ownership in a third person. 
 However, there is safety for the carrier if he will avail him- 
 self of the Interpleader Act. 1 That is an act entitled " An 
 Act to enable Courts of Law to give relief against adverse 
 claims made upon persons having no interest in the subject of 
 such claims." And by the 1st section of that act it is pro- 
 vided that, " upon application made by or on behalf of any 
 defendant sued in any of Her Majesty's courts of law at West- 
 minster, or in the Court of Common Pleas in the County 
 Palatine of Lancaster, or the Court of Pleas of the County 
 Palatine of Durham, in any action of assumpsit, debt, detinue 
 or trover, such application being made after declaration, and 
 before plea, by affidavit or otherwise, showing that such de- 
 fendant does not claim any interest in the subjectrmatter of 
 the suit, but that the right thereto is claimed or supposed to 
 
 1 1 & 2 Will. IV. c. 58. 
 
ON DELIVERY AND NON-DELIVERY. 347 
 
 belong to some third party, who has sued, or is expected to 
 sue, for the same, and that such defendant does not in any 
 manner collude with such third party, but is ready to bring 
 into court, or to pay or dispose of the subject-matter of the 
 action in such manner as the court (or any judge thereof) 
 may order or direct, it shall be lawful for the court, or any 
 judge thereof, to make rules and orders, calling upon such 
 third party to appear, and to state the nature and particulars 
 of his claim, and maintain or relinquish his claim, and, upon 
 such rule or order, to hear the allegations, as well of such 
 third party as of the plaintiff, and in the meantime to stay the 
 proceedings in such actions, and finally to order such third 
 party to make himself defendant in the same or some other 
 action, or to proceed to trial on one or more feigned issue or 
 issues, and also to direct which of the parties shall be plaintiff 
 or 'defendant on such trial, or, with the consent of the plain- 
 tiff and such third party, their counsel or attorneys, to dispose 
 of the merits of their claims, and determine the same in a 
 summary manner, and to make such other rules and orders 
 therein as to costs and all other matters as may appear to be 
 just and reasonable." 
 
 Sec. 279. l & 2 Vict. c. 58. — And a more recent enact- 
 ment makes it lawful for the court or judge to whom an appli- 
 cation is made under the above-quoted section of the 1 & 2 
 Will. IV. c. 58, to exercise the powers and authorities given 
 to them by that act, " though the titles of the claimants to the 
 money, goods, or chattels in question, or to the proceeds' or 
 value thereof, have not a common origin, but are adverse to 
 and independent of one another." 1 With reference to these 
 enactments, however, it has been decided that the sheriff can- 
 not apply to the court under the Interpleader Act unless the 
 goods or money in dispute are actually in his hands. 2 And 
 in Allen v.' Gilby, 3 it was decided that where an auctioneer 
 had one action brought against him in the Common Pleas and 
 another in the King's Bench by different claimants for the 
 
 1 23 & 24 Vict. c. 126, § 12. See 2 Scott v. Lewis, 2 Cromp. M. &R. 
 also §§ 14, 15, 16. 289. 
 
 8 3 Dowl. P. C. 143. 
 
348 THE LAW OP CARRIERS. 
 
 same property, he must, to relieve himself under the Inter- 
 pleader Act, obtain rules in both courts ; and that if a part of 
 a sum claimed by the parties has been paid to one of them 
 before the adverse claim was made, the adverse claimant has 
 a right to have the whole sum he claims paid into court on 
 the holder applying for relief under the Interpleader Act. 1 
 
 Sec. 280. Stoppage in Transitu, what it is. — What termi- 
 nates Journey. — But other circumstances may put an end to 
 the temporary possession of the carrier which will excuse him 
 from the duty of delivery, and discharge him from further lia- 
 bility with reference to the goods. Thus the exercise of the 
 right of stoppage in transitu affords a justification of non- 
 delivery. This right is that which is vested in an unpaid 
 vendor of goods, to stop them while they are on their way to 
 the vendee, and before they have actually come into his pos- 
 session. " Stoppage in transitu, as its name imports, can only 
 take place while the goods are on the way ; if they once arrive 
 at the termination of their journey, and come into the actual 
 or constructive possession of the consignee, there is an end to 
 the vendor's right over them. And, therefore, in most of the 
 cases the dispute has been whether the goods had or had not 
 arrived at the termination of their journey. The rule to be 
 collected from all the cases is, that goods are in transitu as 
 long as they are in the hands of the carrier, as such, whether 
 he was or was not appointed by the consignee, and also so 
 long as they remain in any place of deposit connected with 
 their transmission ; 2 but that if, after their arrival at their 
 place of destination, they be warehoused with the carrier, 
 whose store the vendee uses as his own, or even if they be 
 warehoused with the vendor himself and rent be paid to him 
 for them, that puts an end to the right to stop in transitu. 
 In the case of Lickbarrow v. Mason, 3 which is the leading au- 
 
 1 The jurisdiction of the court ex- Hudson River R. R. Co., 6 Rob. (N. 
 tends to a count in case. Lawrence v. Y.) 119. But see Jeffersouville R. R. 
 Matthews, 5 Dowl. P. C. 14.9. Co. v. Cleveland, 2 Bush (Ky.), 468. 
 
 2 See, as to this subject, Winslow v. 8 Lickbarrow c. Mason, 1 Smith, 
 Vermont R. R. Co., 42 Vt. 700 ; Sol- L. Cas , 6th ed„ p. 699 ; 2 T. R. 63 ; 
 omon v. Philadelphia, &c. Steamboat Nicholls v. Lefeuvre, 2 Bing. N. C. 83 ; 
 Co., 2 Daly (N. Y.), 104 ; Hedges v. James v. Griffin, 1 M. & W. 20 ; Ed- 
 
ON DELIVERY AND NON-DELIVERY. 349 
 
 thority on this subject, it appeared that Turning & Son, mer- 
 chants at Middlebourg, in the province of Zealand, had shipped 
 goods for Liverpool, by the order and direction, and on the 
 account of Freeman, of Rotterdam, and had drawn bills of 
 exchange on him for the price, and taken from the master 
 three bills of lading for delivery of the goods to order or as- 
 signs, two of which were indorsed in blank, and transmitted 
 them, together with the invoice, to Ereeman, who sent them 
 and the invoice to the plaintiffs at Liverpool, in the same 
 state in which he received them, in order that the goods might 
 be taken possession of, and sold on his account, and he drew 
 bills of exchange upon them to nearly the amount at which 
 the goods were valued. Freeman and the plaintiffs accepted 
 the bills of exchange drawn upon them respectively. Before 
 the arrival of the ship at Liverpool, and before the bills of 
 exchange fell due, Freeman became bankrupt. Turning & 
 Son, having heard of the bankruptcy, indorsed the bill of lad- 
 ing, which had been retained by them specially, to the defend- 
 ants, who thereupon received delivery of the goods from the 
 master. Turning & Son paid the bills of exchange drawn by 
 them upon Freeman, and the plaintiffs paid those which had 
 been drawn upon them by Freeman. 
 
 SEC. 281. Right of Stoppage in Transitu. — The Court of 
 King's Bench decided that, by an assignment made by the 
 consignee for a valuable consideration, and without notice to 
 the assignee that the goods were not paid for, the property 
 was absolutely transferred to the assignee, and that he was by 
 such assignment deprived of the right to stop the goods in 
 transitu, which, as against the original consignees, he might 
 have exercised. The Court of Exchequer Chamber reversed 
 the judgment of the King's Bench, holding that a bill of lad- 
 ing is merely the evidence of a contract for the carriage and 
 delivery of goods, and that the assignment gave the assignee 
 
 wards v. Brewer, 2 M. & W. 375; Leeds v. Wright, 3 B. & V. 320 ; Dick- 
 Hurry v. Mangles', 1 Camp. 452 ; son v. Baldwin, 5 East, 175 ; Ellis v. 
 Stoveld v. Huglies, 14 East, 308 ; per Hunt, 3 T. R. 469, per Builee, J. ; 
 Lokd Campbell in Nicholson v. Bow- Smith v. Goss, 1 Camp. 282 ; Dodson 
 er, 1 E. & E. 172. See also Cates v. v. Wentworth, 5 Scott, N. R. 833. 
 Bailton, 6 B. & C. 427, per Bayley, J. ; 
 
350 THE LAW OP CAEEIBRS. 
 
 no other right or title than that which the consignee himself 
 possessed, and consequently that the consignor had a right to 
 stop the goods and prevent their delivery to the assignee. 
 The judgment was brought before the House of Lords, and a 
 venire de novo awarded. The Court of King's Bench adhered 
 to their former decision, and in order that the question might 
 be again taken before the House of Lords, the writ of error 
 was brought, but was subsequently abandoned. 
 
 Sec. 282. To whom Notice must be given. — The case of 
 Whitehead v. Anderson is important in this connection. 1 
 There it was decided that a notice of stoppage in transitu, to 
 be effectual, must be given either to the person who has the 
 immediate custody of the goods, or to the principal whose 
 servant has the custody, at such a time and under such cir- 
 cumstances as that he may, by the exercise of reasonable dili- 
 gence, communicate it to his servants in time to prevent the 
 delivery to the consignee. In this case timber was sent from 
 Quebec to be delivered at Port Fleetwood, in Lancashire. A 
 notice of stoppage given to the shipowner, at Montrose, while 
 the goods were on their voyage, whereupon he sent a letter to 
 await the arrival of the captain at Fleetwood, directing him 
 to deliver the cargo to the agents of the vendor, was held not 
 to be a sufficient notice of stoppage in transitu. In delivering 
 the judgment of the court, Parke, B., said: "The law is 
 clearly settled that the unpaid vendor has a right to retake 
 the goods before they have arrived at the destination origi- 
 nally contemplated by the purchaser, unless in the meantime 
 they have come into the actual or constructive possession of 
 the vendee. If the vendee take the goods out of the posses- 
 sion of the carrier into his own before their arrival, with or 
 without the consent of the carrier, there seems to be no doubt 
 that the transit would be at an end, though, in case of the 
 absence of the carrier's consent, it may be a wrong to him, for 
 which he would have a right of action." This is a case of 
 actual possession which certainly did not occur in the present 
 instance. 
 
 Sec. 283. Constructive Possession. — A case of construc- 
 
 1 9 M. & W. 518. 
 
ON DELIVERY AND NON-DELIVERY. 351 
 
 tive possession is where the carrier enters expressly, or by 
 implication, into a new agreement, distinct from the origi- 
 nal contract for carriage, to hold the goods for the con- 
 signee as his agent, not for the purpose of expediting them 
 to the place of original destination, pursuant to that contract, 
 but in a new character, for the purpose of custody on his 
 account, and subject to some new or further order to be given 
 by him. 
 
 Sec. 284. Possession by marking or taking Samples. — It 
 appears to us very doubtful whether an act of marking or 
 taking samples or the like, without any removal from the 
 possession of the carrier, done with the intention to take pos- 
 session, would amount to a constructive possession, unless 
 accompanied with such circumstances as to denote that the 
 carrier was instructed to keep, and assented to keep in the 
 nature of an agent for custody. 1 
 
 Sec. 285. Action against Carrier for refusing to give up 
 Goods. — When this right of stoppage in transitu exists, and 
 has been exercised, the carrier, if, after tender of freight upon 
 the part of the consignor, he should refuse to deliver up the 
 goods to him, will be subject to an action ; and if, in spite of 
 the notice, the carrier should deliver the goods to the con- 
 signee, who, becoming bankrupt, transfers them to his assign- 
 ees, they will still be subject to an action of trover at the 
 suit of the consignor. 2 We may repeat shortly that the right, 
 to be exercised effectually, must be exercised before actual or 
 constructive delivery has taken place. We have seen under 
 what circumstances the transitus will be held to have come 
 constructively to an end ; and it is to be remembered that it is 
 in connection with cases in which the goods have not actually 
 come into the possession of the consignee, that the greatest 
 doubt and difficulty arises. Wherever a man may bear two 
 
 1 See Poster u.Prampton, 6 B.&C. 2 Litt v. Cowley, 7 Taunt. 169; 
 
 107 ; 9 D. & R. 108 ; Ellis v. Hunt, Stokes v. La Eiviere, cited in Both- 
 
 3 T. R. 464 ; Dixon v. Yates, 5 B. & Ad. lingk v. Inglis, 3 East, 397 ; Syeds v. 
 
 313 ; per Loed Abingbb in Gibson v. Hay, 4 T. it. 260. 
 Carruthers, 8M.&W. 341 ; Tanner 
 v. Scovell, 14 M. & W. 28. 
 
352 THE LAW OP CARRIERS. 
 
 different relations to the same transaction, and in connection 
 with the same goods, questions as to which of the two charac- 
 ters he bore at a certain time are likely to be raised, and are 
 sometimes not easy to answer. Thus the carrier, who was 
 the agent of the bailor, may, by the operation of some act, 
 which gives the consignee constructive possession, at once 
 become his agent, and be bound to hold for him. So wharfin- 
 gers or packers, who under one condition of things may still 
 be the agents of the consignor, and it may be their duty to 
 deliver to the consignee, may, under a different set of circum- 
 stances, be the agents of the consignee, and it may be their 
 duty to receive from the consignor. 1 
 
 SEC. 286. Completed Delivery ends Right to stop in Transitu. 
 — If the transit be at an end, and the delivery is complete, 
 the right to stop in transitu has ceased, 2 but as in very few 
 cases the goods actually come to the corporeal touch of the 
 vendee, — which would, of course, oust the right of stoppage 
 in transitu, 3 — and, as in most cases, delivery takes place to a 
 person other than the consignee, the question which has to be 
 decided in all these cases is, whether the party into whose pos- 
 session they actually come be an agent of the consignee in 
 such a sense as to make the delivery to him as full, effectual, 
 and final a delivery as if it had been made to the principal 
 himself. 
 
 Sec. 287. Possession of Goods by Consignee ends Right to 
 stop in Transitu. — In one case the opinion was expressed that, 
 in order to defeat the right to stop in transitu, or the right to 
 
 1 Mills v. Ball, 2 B. & P. 457; Hare, 3 H. & N. 484; affirmed on 
 
 Hoist v. Pownal, 1 Esp. 240 ; Northey error, 4 H. & N. 822. 
 
 v. Field, 2 Esp. 613 ; Hodgson v. Loy, 2 A mere commencement of delivery, 
 
 7 T. B-. 440 ; Rowe v. Pickford, 8 not so far completed as to allow tile 
 
 Taunt. 83 ; Cooper v. Bill, 3 H. & C. consignee to take actual possession, 
 
 722 ; 34 L. J. Exch. 161 ; Wentworth cannot be construed into a determiua- 
 
 v. Outhwaite, 10 M. & W. 436 ; Dod- tion of the transit. Crawshay v. Eades, 
 
 son v. Wentworth, 5 Scott, N. P. 821 ; 1 B. & C. 181 ; 2 D. & R. 288. See 
 
 4 M. & Gr. 1080 ; Bolton v. Lanca- also Houston on Stoppage in Transitu, 
 
 shire & Yorkshire Rail. Co., 35 L. J. p. 119 et seg. 
 
 C. P. 137 ; 1 L. R. C. P. 431 ; Valpy » Ellis v. Hunt, 3 T. R. 464. 
 v. Gibson, 4 C. B. 837 ; Browne v. 
 
ON DELIVERY AND NON-DELIVERY. 353 
 
 seize the goods on non-payment of the price, and the insol- 
 vency of the vendee, the completion was necessary, 1 and that 
 the vendee could not anticipate the natural determination of 
 the right, — as, for instance, by going to meet the goods at 
 sea. In the case of Mills v. Ball, 2 however, this doctrine was 
 repudiated, and the presiding judge said : " If, in the course 
 of the conveyance of goods from the vendor to the vendee, the 
 latter is allowed to exercise any act of ownership over them, 
 he thereby reduces the goods into his possession, and puts an 
 end to the vendor's right to stop them. So, though it has 
 been said that the right of stoppage continues until the goods 
 have arrived at their journey's end, yet if the vendee meet 
 them upon the road, and take them into his own possession, 
 the goods will then have arrived at their journey's end with 
 reference to the right of stoppage." 3 What has been said 
 concerning this important question of the right of stoppage in 
 transitu, although far from covering the whole field of fact 
 and from contemplating the very various circumstances which 
 may arise in connection with the exercise of this right, will 
 yet be sufficient to enable the reader to ascertain the general 
 principles which govern the exercise of the right on the one 
 hand, and which govern the cases and circumstances which 
 may oust that right on the other. In this place it would have 
 been incongruous to dwell more at length upon this subject, 
 as it was only introduced with the view of discovering under 
 what circumstances the liability of the carrier for the non- 
 delivery of goods intrusted to him would be discharged. We 
 have done that. It is almost unnecessary to add, that when 
 the right of stoppage in transitu has been exercised, the act is 
 
 1 Per Lokd Kenton, in Hoist v. goods out of the possession of the car- 
 
 Pownal, 1 Esp. 240. rier into his own before their arrival, 
 
 2 B. & P. 461. the right to stop in transitu is at an 
 
 8 See also Oppenheim v. Rucsell, end; though if he were to take them 
 
 3 B. & P. 54 ; Poster v. Prampton, without the consent of the carrier, it 
 
 6 B. & C. 107 ; and Whitehead v. An- might be a wrong to him for which he 
 
 derson, 9 M. & "W. 518, where, as we would have a right of action. See 
 
 have seen, it was laid down as indis- also London & North-Western Bail, 
 
 putable that, if the vendee take the Co. v. Bartlett, 7 H. & N. 400. 
 
 23 
 
354 
 
 THE LAW OF CAERIEES. 
 
 in the nature of a claim to lien, and not an absolute resump- 
 tion of ownership. 1 
 
 1 See Houston on Stoppage in Tran- 
 situ; Benjamin's Sale of Personal 
 Property, London, 1868, p. 625; Howe 
 v. Stewart, 40 Vt. 145 ; Schmertz v. 
 Dwyer, 53 Penn. St. 335; Wenger 
 
 v. Barnhart, 55 Penn. St. 300 ; Thomp- 
 son v. Baltimore, &e. R. B. Co., 28 
 Md. 396 ; Blum v. Marks, 21 La. Ann. 
 
RESTRICTIONS UPON CARRIERS. 
 
 355 
 
 CHAPTER IX. 
 
 RESTRICTIONS UPON CARRIERS. 
 
 Sec. 288. The Progress of Law. 
 
 289. Modifications in Law of Car- 
 
 riers. 
 
 290. Duties of Railway Carriers. 
 
 291. Restrictions. 
 
 292. Carriage of Mails, Troops, &c. 
 
 293. Government Inspection and 
 
 Control. 
 
 294. Notice of Certificate. 
 
 295. Punishment of Servants, &c. 
 
 296. Railway Companies as Common 
 
 Carriers. 
 
 297. Dangerous Goods. 
 
 297 a. By-laws : their Purposes. 
 
 298. Provision as to By-laws. 
 
 299. Publication of By-laws. 
 
 300. Proof of Publication. 
 
 301. Nature of these Provisions. 
 
 302. Power to make By-laws con- 
 
 strued. 
 
 303. What By-laws can be made. 
 
 304. Way Powers must be exercised. 
 
 305. Notice of By-laws, What is suf- 
 
 ficient. 
 
 306. Restriction of Preferences. 
 
 307. Railway Monopoly, Effect of. 
 
 308. 17 & 18 Vict. c. 31. 
 
 309. Definition of Words used. 
 
 310. Application to Court, &c. 
 
 311. Power of Court to rescind or 
 
 van' Order. 
 
 312. Regulations issued by Court. 
 
 313. Application for Rule. — By Sum- 
 
 mons. 
 
 314. Order. 
 
 315. Copies of Affidavits to be fur- 
 
 nished. 
 
 316. Fresh Affidavits. 
 
 317. Common-law Rights of Con- 
 
 signors, &c. 
 
 318. Difficulty of Decisions under 
 
 this Statute. 
 
 319. Question considered. 
 
 320. Extent and Application of Stat 
 
 ute. 
 
 Sec. 321. Chancery Jurisdiction not 
 abridged. 
 
 322. Not absolutely prohibited from 
 
 giving Different Rates. 
 
 323. Proceedings and Doctrine 
 
 adopted in Oxlade ». North- 
 Eastern Railway Co. 
 
 324. Decision. 
 
 325. Ransome -o. Eastern Counties 
 
 Railway Co. 
 
 326. Meaning of " Undue and Unrea- 
 
 sonable Preference," &c. 
 
 327. Object of Legislature. 
 
 328. Principles of Inequality: 
 
 329. When Injunction will be 
 
 granted. 
 
 330. Threat of other Railways not 
 
 good Ground for reducing 
 Rates. 
 
 331. Preference on Freight consigned 
 
 to Company. 
 
 332. What Circumstances are to be 
 
 considered. 
 
 333. Where Conveyance is adapted 
 
 to Company's Convenience. 
 
 334. Policy of the Law. 
 
 335. Where Arrangements Beneficial 
 
 to Individuals may be made. 
 
 336. Where Large Quantities are 
 
 guaranteed. 
 
 337. Reduction on account of Cheap- 
 
 ness not an Undue Prefer- 
 ence. 
 
 338. Agreement to employ other 
 
 Lines, &c. 
 
 339. Principle involved. 
 
 340. Rates must not operate to Dis- 
 
 advantage of Third Persons. 
 
 341. Separate Interests vested in 
 
 same Company. 
 
 342. Position of Company as to 
 
 Separate Interests. 
 
 343. Where Company seeks to pro- 
 
 mote its own Interests with- 
 out Reference to Others. 
 
356 
 
 THE LAW OP CARRIERS. 
 
 Sec. 344. 
 
 Advantage must be given to all 
 
 Sec. 382. 
 
 Change of Practice. 
 
 
 under same Circumstances. 
 
 383. 
 
 Strictness with which Special 
 
 345. 
 
 Where Interest of the Com- 
 
 
 Acts are construed. 
 
 
 pany causes Unreasonable Dis- 
 
 384. 
 
 Terminal Charges in relation to 
 
 
 advantage. 
 
 
 Special Act. 
 
 346. 
 
 Court will prevent what is, in 
 
 385. 
 
 Charges for Packed Parcels. 
 
 
 Effect, Injustice. 
 
 386. 
 
 Rules of Construction. 
 
 347. 
 
 Principles of the Decision. 
 
 387. 
 
 Certain Words construed. 
 
 348. 
 
 Railway Company's two Capaci- 
 
 388. 
 
 Packed Parcels, Inequality of 
 
 
 ties. 
 
 
 Charge, &c. 
 
 349. 
 
 Preferences considered/ 
 
 389. 
 
 Probable Result of the System. 
 
 350. 
 
 When Contract for Special 
 
 390. 
 
 Carriers' Power to prevent Com- 
 
 
 Rates is justified. 
 
 
 petition by other Carriers. 
 
 351. 
 
 Legitimate Competition, &c. 
 
 391. 
 
 Charge for " Smalls." 
 
 352. 
 
 Unreasonable Prejudice. 
 
 392. 
 
 Every Special Act to be spe- 
 
 353. 
 
 Agent's Receiving-houses. 
 
 
 cially considered. 
 
 354. 
 
 Stational Arrangements. 
 
 393. 
 
 Where Equality Clause does not 
 
 355. 
 
 Undue Preference with other 
 
 
 operate. 
 
 
 Carriers of Passengers. 
 
 394. 
 
 Separate Parcels. 
 
 356. 
 
 What Proof necessary to sup- 
 
 395. 
 
 Contract made in Foreign 
 
 
 port Injunction. 
 
 
 Country. 
 
 357. 
 
 Time of closing Goods Station. 
 
 396. 
 
 31 & 32 Vict. c. 119. 
 
 358. 
 
 Application of Act as to Facili- 
 
 397. 
 
 Provision to secure Equality 
 
 
 ties for storing Coal. 
 
 
 when Railway also runs 
 
 359. 
 
 As to Court's Jurisdiction under 
 
 
 Steamers. 
 
 
 Act. 
 
 398. 
 
 Bound to furnish Particulars of 
 
 360. 
 
 Question of Method. 
 
 
 Charges. 
 
 361. 
 
 Fares, Passengers, and Trains. 
 
 399. 
 
 When two Railways are worked 
 
 362. 
 
 Granting of Season Tickets. 
 
 
 by one Company. 
 
 363. 
 
 Inconvenience to Public, &c. 
 
 400. 
 
 Mileage. 
 
 
 must be shown to warrant In- 
 
 401. 
 
 Recovery of Over-charges, &c. 
 
 
 terference with Branch Lines. 
 
 402. 
 
 Where Money was paid to ob- 
 
 364. 
 
 Unequal Charges. 
 
 
 tain Possession of Goods. 
 
 365. 
 
 Practice on Remedy. 
 
 403. 
 
 Restriction upon other Carriers. 
 
 366. 
 
 Affidavit. 
 
 404. 
 
 Assimilation of Railway and 
 
 367. 
 
 Attachments. 
 
 
 Canal Traffic. 
 
 368. 
 
 Costs. 
 
 405. 
 
 Company subject to By-laws 
 
 369. 
 
 Restrictions Independent of 
 
 
 of other Company whose 
 
 
 Statute. 
 
 
 Canal they may use as Car- 
 
 370. 
 
 Power of Railway Companies 
 
 
 rier. 
 
 
 to impose Toll. 
 
 406. 
 
 Powers of such Company, Trus- 
 
 371. 
 
 "Manufactured Goods," What 
 
 
 tees, &c. 
 
 
 are. 
 
 407. 
 
 Tolls to be charged equally to 
 
 372. 
 
 Construction of Special Acts. 
 
 
 All. 
 
 373. 
 
 Inequality of Charge. 
 
 408. 
 
 Liability of such Company. 
 
 374. 
 
 Packed Parcels. 
 
 409. 
 
 Light Goods and Heavy Goods. 
 
 375. 
 
 How Equality of Charge is to 
 
 410. 
 
 The Rules of Construction ap- 
 
 
 be estimated. 
 
 
 plicable to such Acts. 
 
 376. 
 
 Extortion under Company's 
 
 411. 
 
 Rule in Lee v. Manchester Canal 
 
 
 Special Act. 
 
 
 Company. 
 
 377. 
 
 Reduction in Favor of Carriers 
 
 412. 
 
 Equality Clause in a Canal 
 
 
 for Loading. 
 
 
 Act, &c. 
 
 378. 
 
 Weight of Parcels, &c. 
 
 413. 
 
 Restrictions on Carriers by 
 
 379. 
 
 Principles. 
 
 
 Water. 
 
 380. 
 
 Provisions of Act considered. 
 
 414. 
 
 Inapplicability of some Restric- 
 
 381. 
 
 Proviso for Collection and De- 
 
 
 tions to Ship-owners. 
 
 livery of Goods. 
 
RESTRICTIONS UPON CARRIERS. 357 
 
 Sec. 288. The Progress of Law. — All systems of jurispru- 
 dence must be progressive. The most perfect code of laws for 
 one century -will be defective for the next. So long as the 
 environment of men is capable of change, so long as men's 
 thoughts and actions are liable to modification by the actual 
 facts of a period, and so long as there is a gradual progress of 
 humanity from one state of being to another, so long must 
 any excellent system of rules or laws be liable to changes and 
 modifications, if it would still retain its character for excel- 
 lence. These are very evident truths ; and even if they were 
 not palpable, the history of the law of carriers would afford a 
 not inappropriate illustration and proof of these propositions. 
 The many changes which have been incident to the last cen- 
 tury have rendered many modifications of the laws relating to 
 carriers necessary. We have already had occasion to allude 
 to this fact ; but in the present chapter it becomes a more im- 
 perative duty to point out some of the changes in the law 
 which the progress of mankind has rendered expedient. 
 
 Sec. 289. Modifications in the Law of Carriers. — The in- 
 troduction of railways into this country necessarily modified 
 the conditions of the transit of goods and persons, and the 
 modification of these conditions rendered many changes in the 
 law a matter of necessity. The fact that the speed of convey 
 ance by means of steam was incomparably more rapid than 
 that by means of any of the pre-existing conveyances, gave 
 railway companies a monopoly of the carriage of all goods 
 which had to be conveyed to great distances, at the same time 
 that it facilitated the transmission of goods to places which, 
 but for some such means of carriage, they could never have 
 reached. The impetus that the establishment of this system 
 gave to trade was incalculable. So, just at the time when the- 
 calling of a carrier was likely to become exceedingly lucra- 
 tive, it was monopolized by railway companies. The condition 
 of the existence of such a company made Acts of Parliament 
 necessary for its incorporation. In order to be enabled to 
 make a railway from one place to another, it was found neces- 
 sary that a company, willing to construct it, must be endowed 
 with certain powers of purchase and the like, and the acts 
 
358 THE LAW OF CARRIERS. 
 
 •which incorporated the company generally contained clauses 
 regulative of the management of the particular railway. The 
 law of carriers, then, as it applies to railway companies who 
 carry for hire, must depend upon the private acts of incorpora- 
 tion, or upon the public acts of consolidation, which have from 
 time to time been passed. In the case of most railways, the 
 special acts of their incorporation, and in the case of some, the 
 Railways Clauses Consolidation Act, empowers the company 
 to become common carriers. 1 If there are such clauses in their 
 special act, or if, under the other act, they have undertaken 
 the trade of common carriers, they are presumed to be so. 
 The public profession in this case has been equivalent to the 
 public profession of a certain kind of business in the case of a 
 common carrier. 2 It is, however, admissible for railway car- 
 riers to act either in the capacity of common carriers or of 
 special carriers for hire ; and, as we have seen, the exercise of 
 the functions proper to the former class implies a warranty 
 of the safety of the goods upon the part of the carrier, or, in 
 other words, the insurance of the articles carried. And, as we 
 have also seen in the preceding chapter, a common carrier may 
 so limit his responsibility by means of special contract — may 
 so denude himself of one of the aspects of his character as a 
 common carrier — as to become a special carrier for hire. In 
 the case of railway carriers, there is one restriction upon this 
 power to limit their liability, and that is a statutory exception 
 to the ordinary rule as stated above. They cannot, even by 
 express contract, exempt themselves from liability for gross 
 negligence. 
 
 SEC. 290. Duties of Railway Carriers. — Where, however, 
 a railway company has assumed the character of a common 
 carrier, it is, for the most part, in the same position, possessed 
 of the same rights, bound to do the same duties as an ordinary 
 common carrier. 8 As the life of an organism is determined 
 entirely by its past experiences, so the life of any institution, 
 which is a kind of organism too, is determined in the same 
 
 1 With regard to canal companies, 2 Per Pauke, B., Palmer v. Grand 
 see 8 & 9 Vict. o. 42. Junction Railway, 4 M. &. W. 768. 
 
 8 8 & 9 Vict. o. 20, § 89. 
 
RESTRICTIONS UPON CARRIERS. 359 
 
 way. The company, no more than any other carrier, is not 
 bound to transcend its professed habits. What it has been in 
 the habit of doing determines the duty which it will be bound 
 to perform. Thus railway companies are only bound to carry 
 such goods as they have been in the habit of carrying. They 
 are only bound to carry goods to such places as their public 
 profession has connected their trade with. 1 They are justified 
 in refusing to carry if they have not conveyances, or, after 
 having professed to carry any particular kind of goods, they 
 may discontinue the business. 2 
 
 Sec. 291. Restrictions. — Although that is so, railway car- 
 riers are subject to certain restrictions, and it is of some 
 importance that these should be pointed out.- 3 Any duty that 
 is imposed on one class of carriers, which is not at the same 
 time imposed upon all classes, is a restriction upon the 
 former. Every new duty is an extra penalty on carrying on 
 the trade. What these are it is necessary to inquire. 
 
 SEC. 292. Conveyance of Mails, Troops, &c. — An act 
 passed at the very beginning of the present reign * empowers 
 the Postmaster-General to require all railways to convey the 
 public mails for a reasonable rate of charge. By other acts, 
 railways may be required to convey troops and military stores, 
 at prices to be fixed by the Secretary of State. 6 Such pro- 
 
 1 Oxlade v. North-Eastern Rail. Co., rights and duties, the privileges and 
 
 9 W. R. 272 ; 3 L. T. Rep. n. s. 671 ; disabilities, of railway carriers, it will 
 
 M'Manus v. Lancashire & Yorkshire be necessary to consult not only the 
 
 Rail. Co., 28 L. J. 354 Exch. act just referred to, but to inspect the 
 
 a Johnson v. Midland Rail. Co., 4 copy of the special act, which is kept 
 
 Exch. 367; 18 L. J. 366 Exch. for public inspection at the principal 
 
 8 It is of importance to remember business office of the company (8 Vict, 
 that any railway company incorporated c. 20, § 162). The acts are to be con- 
 since the 8th May, 1845, is subject to strued strictly against the company, 
 the 8 Vict, c. 20 (Railways Clauses i 1 & 2 Vict. c. 98. .See also7&8 
 Consolidation Act), the first section of Vict. c. 85, § 11. 
 which declares that the clauses and 5 5 & 6 Vict. c. 55, § 20. See also 
 provisions therein contained are incor- 7 & 8 Vict. c. 85, § 112, and 10 & 11 
 porated with the railway's special act, Vict. c. 85. By a case decided in 
 except in so far as they are express- Ireland, " public baggage, stores, and 
 ly varied or excepted by such act. arms," &c, sent by railway, in charge 
 Wherever, therefore, it becomes neces- of any of her Majesty's forces, speci- 
 sary to know the exact extent of the fled in 7 & 8 Vict. c. 85, § 12, is 
 
360 THE LAW OP CARRIERS. 
 
 visions are obviously restrictions upon the common carrier's 
 " option as to the method in which he will conduct his busi- 
 ness," * which option is ordinarily only restricted by the con- 
 ditions which he holds out to the public. 
 
 SEC. 293. Government Inspection and Control. — The dan- 
 gers associated with railway travelling have suggested the 
 necessity of Government inspection and control. The principle 
 which regulates ordinary business affairs, and which allows 
 the vendor of anything, whether it be conveyance or not, to 
 do anything he chooses, so long as the vendee does not object, 
 only goes a very little way, and will not do for a guiding prin- 
 ciple in all legislative questions. "Wherever, owing to any 
 peculiar circumstances in the condition or position of the 
 vendee, he is placed at a disadvantage in regard to the free- 
 dom of his choice relatively to the vendor, the legislature 
 steps in to endeavor to readjust these matters, and to mitigate 
 the evils of this disadvantageous position of the person deal- 
 ing as against the person dealt with. Now, the practical 
 monopoly which is in the hands of railway carriers, owing to 
 the circumstances of their construction, and the like, places the 
 sender of goods, or the traveller, at a disadvantage ; and to 
 remedy this a general supervision of all railways is given 
 to the Board of Trade, who may call for returns of the aggre- 
 gate traffic in passengers, cattle, and goods, as well as of all 
 accidents attended with personal injury on the railway, and 
 also for tables of tolls, rates, and charges levied from time to 
 time on such traffic. 2 The Board of Trade is, by the same 
 act, empowered to appoint persons to inspect the railway, and 
 all works and engines connected with it, at all reasonable 
 times. 3 No by-laws are, since the passing of that act, valid 
 
 "their baggage/' no matter what- may x Per Erle, C. J., Oxladeu. North- 
 be the disproportion between the Eastern Rail. Co., 9 W. R. 272; 3 
 amount of baggage and the number of L. T. R. n. s. 671. 
 the forces in charge of it, and must 2 3 & 4 Vict. c. 97, § 1 ; 14 & 15 
 be carried by a railway company at Vict. c. 64. 
 
 the rates imposed by that section. 8 3 & 4 Vict. c. 97, § 5; 7 & 8 
 
 Attorney-General v. Great Southern & Vict. c. 85, § 15. 
 Western Rail. Co., 14 Ir. C. L. R. 
 447 Exch. 
 
RESTRICTIONS UPON CARRIERS. 361 
 
 till two calendar months after they have been laid before the 
 Board of Trade ; and it is in the power of the Board to dis- 
 allow any such by-laws, before or after they have come into 
 operation. 1 The 11th section provides that, whenever it shall 
 appear to the Board of Trade that any of the provisions of the 
 Railway Acts have not been complied with on the part of 
 the companies, or their officers, and that it would be for the 
 advantage of the public that such provisions should be en- 
 forced, the Board of Trade shall certify the same to Her 
 Majesty's Attorney-General for England or Ireland, or to the 
 Lord Advocate for Scotland, as the case may require, and that 
 thereupon the Attorney-General or the Lord Advocate 2 shall, 
 by information, or by action, bill, plaint, suit at law or in 
 equity, or other legal proceedings, as the case may require, 
 proceed to recover such penalties and forfeitures, or otherwise 
 to enforce the due performance of the said provisions, by such 
 means as any person aggrieved by such non-compliance, or 
 otherwise authorized to sue for such penalties, might employ 
 under the provisions of the said acts. 
 
 Sec. 294. Notice of Certificate. — Notice of such certificate 
 must be given by the Board to the company at least twenty- 
 one days before. 3 ■ 
 
 SEC. 295. Punishment of Servants. — Other Provisions. — 
 There are provisions for the apprehension and punishment of 
 servants of the company who may be found drunk on duty, or 
 who commit any offence against any of the by-laws, rules, 
 or regulations of the company. 4 It is not lawful to open any 
 railway, or any portion of a railway, for public conveyance, 
 until after one calendar month's notice in writing to the 
 Board of Trade, of the company's intention so to open it, nor 
 until after ten days' notice to the Board of the time when the 
 railway will be complete and fit for inspection. 5 And it is in 
 the power of the Board to postpone the opening of the line, 
 after such inspection, if they think it right to do so. 6 The 
 
 1 3 & 4 Vict. c. 97, §§ 8 and 9. 4 3 & 4 Vict. c. 97, § 13 ; 5 & 6 
 
 2 See 7 & 8 Vict. c. 85, § 17. Vict. c. 35, § 17. 
 
 8 3 & 4 Vict. c. 97, §11. 6 5 & 6 Vict. c. 55, § 4. 
 
 • Hid. § 6. 
 
362 THE LAW OP CARRIERS. 
 
 same act provides for notices to the Board of all accidents, 1 
 for the keeping of gates at each end of a road which is crossed 
 by a line of rail, 2 for the speed of trains when approaching 
 such crossings, 3 and for the decision, by the Board, of all 
 questions which affect the public safety, and which arise be- 
 tween companies with a common terminus or line of rails.* 
 The weight of the carriages to be used is referred to in the 
 16th section of the act; and in another section it is enacted, 
 that no railway shall be considered a passenger railway if two 
 thirds or more of the gross annual revenue shall be derived 
 from the carriage thereon of coals, iron-stone, or other metals 
 or minerals. 5 All these provisions, and many others which 
 we shall mention, restrict the freedom of railway companies, 
 acting as common carriers ; but such restrictions are necessary 
 for the safety of the public, and are justified on the ground of 
 public policy. 6 
 
 Sec. 296. Railway Companies as Common Carriers. — Not- 
 withstanding these restrictions, and others which we shall 
 have occasion to mention when we come to speak of the con- 
 veyance of passengers, we shall see that a railway company is 
 not compelled to become a common carrier, and that even 
 when they have taken upon themselves the duties and liabili- 
 ties attaching to. that calling, they are, for the most part, in 
 precisely the same position as ah ordinary common carrier. 
 Thus the Railways Clauses Consolidation Act enacts that " It 
 shall be lawful for the company to use and employ locomotive 
 engines, or other moving power, and carriages and wagons to 
 be drawn or propelled thereby, and to carry upon the railway 
 
 1 5 & 6 Vict. o. 55, § 7. 6 By 7 & 8 Vict. c. 85, § 13, all 
 
 2 Ibid. § 9 ; Marfell v. South-West- railway companies are bound to allow 
 em Rail. Co., 29 L. J. 315 C. P. any person authorized by the Board of 
 
 8 8 & 9 Vict. c. 20, § 48. Trade to enter on the lands of therail- 
 
 4 Ibid. § 11. way for the purpose of laying down 
 
 6 5 & 6 Vict. c. 55, § 12. This is and working a line of electric tele- 
 
 of importance in connection with 9 & graph, of which the railway company 
 
 10 Vict. c. 57, § 1, which enacts that is to have the full benefit, subject to 
 
 the gauge of a railway for the convey- the prior claims of her Majesty and of 
 
 ance of passengers is not to be Jess the proprietors of the telegraph. But 
 
 than four feet eight inches in England, see Telegraph Act. 
 and five feet three inches in Ireland. 
 
RESTRICTIONS UPON CARRIERS. 363 
 
 all such passengers and goods as shall be offered to them for 
 that purpose,. and to make such reasonable charges in respect 
 thereof as they may from time to time determine upon, not 
 exceeding the tolls by the special act authorized to be taken 
 by them." 1 And also that " Nothing in this or the special 
 act contained shall extend to charge or make liable the com- 
 pany further or in any other case than where, according to the 
 laws of the realm, stage-coach proprietors and common car- 
 riers would be liable, nor shall extend in any degree to deprive 
 the company of any protection or privilege which common 
 carriers or stage-coach proprietors may be entitled to, but, on 
 the contrary, the company shall at all times be entitled to the 
 benefit of every such protection and privilege." 2 
 
 Sec. 297. Dangerous Goods. — Besides these provisions, the 
 act contains another which exempts the company from the 
 common-law duty to carry goods, if those goods are of a dan- 
 gerous nature, unless the nature is marked on the outside of 
 the package, and giving them a power to open parcels sus- 
 pected of containing dangerous goods, with a view of ascer- 
 taining whether they do contain such goods or not. 3 It is a 
 question whether the subject of by-laws should be treated in 
 this chapter, under the head of restrictions (for the power 
 which is given to a railway company to make by-laws is sub- 
 ject to the provisions and restrictions of the Railways Clauses 
 Act and of the special act), 4 or not. We prefer, however, to 
 regard them in the former light, and set forth in this place 
 the various clauses bearing upon this subject. 
 
 SEC 297 a. By-laws : their Purposes. — The 108th section 
 of the Railways Clauses Act enacts that " It shall be lawful 
 for the company, from time to time, subject to the provisions 
 and restrictions in this and the special act contained, to make 
 regulations for the following purposes (that is to say) : 
 
 " For regulating the mode by which, and the speed at 
 which, carriages using the railway are to be moved 
 or propelled : 
 
 1 8 & 9 Vict. c. 20, § 86. ante, p. 279 et seq. See also 29 & 30 
 
 2 8 & 9 Vict. o. 20, § 89. Vict. c. 69. 
 
 8 8 & 9 Vict. c. 20, § 105. See 4 8 & 9 Vict. c. 20, § 108. 
 
364 THE LAW OP CARRIERS. 
 
 ' " For regulating the times of arrival and departure of 
 any such carriages : . 
 
 " For regulating the loading or unloading of such car- 
 riages, and the weights which they are respectively 
 to carry : 
 " For regulating the receipt and delivery of goods, and 
 other things which are to be conveyed upon such 
 carriages : 
 " For preventing the smoking of tobacco, and the com- 
 mission of any other nuisance, in or upon such 
 carriages, or in any of the stations or premises 
 occupied by the company : l 
 " And, generally, for regulating the travelling upon, 
 and using and working upon 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 con- 
 sequence of any of the works being out of repair, or from any 
 other sufficient cause it shall be necessary to close the railway 
 or any part thereof." 2 
 
 SEC. 298. Further Provision with regard to By-laws. — Other 
 acts have, however, dealt with the subject of by-laws : thus, 
 by 8 & 9 Vict. c. 16, the company is empowered from time to 
 time to make by-laws for the purpose of regulating the con- 
 duct of the officers and servants of the company, in all respects 
 whatsoever, provided such by-laws are not repugnant to the 
 laws of that part of the United Kingdom where they are to 
 have effect, or to the provisions of that or the special act, and 
 such by-laws are to be reduced to writing, to which the com- 
 pany's common seal is to be affixed, and a copy of these by-laws 
 is to be given to every officer and servant of the company 
 affected thereby. 3 There are also provisions which point out 
 under what circumstances penalties are exigible from the com- 
 pany's servants. 4 There are one or two provisions in the 
 latter of the two acts above referred to, which it will be neces- 
 
 1 But see recent regulations, post. 8 8 & 9 Vict. c. 16, § 124. 
 
 2 See Paekb, B., 18 L. J. 369 4 Ibid. \\ 125, 126, 127, 145, 160. 
 Exeh. 
 
RESTRICTIONS UPON CARRIERS. 365 
 
 sary to quote in this place, as the non-compliance with the 
 statutory proyisions will result in restrictions of the railway 
 carrier's freedom as a common carrier. 
 
 Section 109 (of 8 & 9 Vict. c. 20) enacts that, " For better 
 enforcing the observance of all or any of such regulations, it 
 shall be lawful for the company, subject to the provisions of 
 an act passed in the fourth year of the reign of her present 
 Majesty, intituled ' An Act for Regulating Railways,' J to make 
 by-laws, and frbm time to time to repeal or alter such by-laws 
 and make others, provided that such by-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 this or the 
 special act, and such by-laws shall be reduced to writing, and 
 shall have affixed thereto the common seal of the company ; 
 and any person offending against any such by-law shall forfeit 
 for such offence any sum not exceeding five pounds, to be 
 imposed by the company in such by-laws as a penalty for any 
 such offence ; and if the infraction or non-observance of any 
 such by-law, or other such regulation as aforesaid, be attended 
 with danger or annoyance to the public, or hindrance to the 
 company, in the lawful use of the railway, it shall be lawful 
 for the company summarily to interfere to obviate or remove 
 such danger, annoyance, or hindrance, and that without preju- 
 dice to any penalty incurred by the infraction of any such 
 by-law." 
 
 SEC. 299. Publication of By-laws. — Section 110. " The 
 substance of such last-mentioned by-laws, where confirmed or 
 allowed according to the provisions of any act in force regu- 
 lating the allowance or confirmation of the same, shall be 
 painted on boards, and hung up and affixed, and continued on 
 the front or other conspicuous part of every wharf or station 
 belonging to the company, according to the nature or subject- 
 matter of such by-laws respectively, and so as to give public 
 notice thereof to the parties interested therein or affected 
 thereby, and such boards shall from time to time be renewed 
 as often as the by-laws are obliterated or destroyed, and no 
 
 1 3 & 4 Vict. c. 97. See also with regard to canal companies, 8 & 9 Vict. 
 
366 THE LAW OP CARRIERS. 
 
 penalty enforced by any such by-law shall be recoverable 
 unless the same shall have been published and kept published 
 in manner aforesaid." 
 
 Sec. 300. Proof of Publication. — Section 111. " Such by- 
 laws, 4 when so confirmed, published, and affixed, shall be 
 binding upon, and be observed by, all parties, and shall be 
 sufficient to justify all persons acting under the same ; and 
 for proof of the publication of any such by-laws, it shall be 
 sufficient to prove that a printed copy, or painted board con- 
 taining a copy of such by-laws, was affixed and continued in 
 manner by the act directed, and in case of its being after- 
 wards displaced or damaged, then that such paper or board 
 was replaced as soon as conveniently might be." 
 
 These clauses contain the statement of duties which devolve, 
 under the act, upon carriers who carry on their trade by 
 means of railways ; and as these duties do not devolve upon 
 other common carriers, these must be regarded as, in some 
 sort, special restrictions. When, however, these duties have 
 been performed, — when the by-laws can be pronounced 
 neither unreasonable nor repugnant to the common law, nor 
 to any statutory provision, — when they have been approved 
 of by the Board of Trade, or other authority nominated by the 
 special act, — when they have been published and affixed in a 
 place where they can be seen and read by the public, — ■ they 
 are binding upon all persons. 
 
 Sec. 301. Nature of these Provisions. — Some cases in 
 which this subject has come under the consideration of the 
 courts are worthy of being considered. With reference to 
 the above requisites to which by-laws must conform, it may 
 be said that the reasonableness of the law must necessarily be 
 an imperative requisite ; 1 and that the by-law should in no way 
 be opposed either to the common or statute law is a condition 
 which is evidently, in its very nature, of the most binding 
 
 1 Waite v. Garston Local Board of Union Benevolent Association, 1 Du- 
 
 Health, 37 L. J. M. C. 19 Q. B. ; An- vail, 143 ; Day v. Owen, 5 Mich. 520 ; 
 
 pell & Ames, C. 10 ; 2 Kent, Com. and see Redfield's Law of Railways, 
 
 296 ; Davis v. Meeting-House in Low- 3d ed., vol. i. p. 88 et seq. 
 ell, 8 Met. 321 ; Sayre t\ Louisville 
 
RESTRICTIONS UPON CARRIERS. 367 
 
 character. Any such opposition will, of . course, render the 
 by-law inoperative. The question whether it has been con- 
 firmed or not has no bearing upon this result. 
 
 Sec. 302. Construction of Power to make By-laws. — 
 The power to make by-laws is to be strictly construed ; and if 
 a particular power is given to a company to make by-laws for 
 the management of one thing, they cannot make by-laws for 
 the carrying on of projects foreign to that thing. 1 Thus a 
 railway company was empowered to make by-laws for the 
 good government of the affairs of the company, and for the 
 management of the undertaking, and of the officers and ser- 
 vants of the company in all respects whatever, and to impose 
 and inflict reasonable fines and forfeitures upon persons of- 
 fending against the same not exceeding bl. for any one offence, 
 to be levied and recovered as any penalty might by the act be 
 levied and recovered, such by-laws to be binding upon and to 
 be observed by all parties, provided that they were not repug- 
 nant to the laws of England or the directions of the act. It 
 was also enacted that it should be lawful for the company to 
 make orders and regulations for regulating the travelling 
 upon, and the use of the railway, and for or relating to travel- 
 lers upon the line, such orders and regulations to be binding 
 upon travellers and passengers passing on the railway upon 
 pain of forfeiture, and the payment of a sum not exceeding 51. 
 Penalties and forfeitures imposed by the act, of which there 
 were several, or by any by-law, might be recovered in a sum- 
 mary way by the adjudication of justices, — half the penalty 
 to go to the informer, and half to the company. And it 
 should be lawful for any officer or agent of the company to 
 seize any person whose name and residence should be un- 
 known to such officer or agent, who should commit any 
 offence against that act, and to convey him before a justice, 
 without any warrant or other authority than that act. The 
 company made a by-law, whereby a passenger not producing 
 
 1 Child v. Hudson Bay Company, Spencer, 3 Burr. 1827 ; Rex v. Gine- 
 
 2 P. Wins. 207; and see Melio- ver, 6 T. B. 732 ; Bex v. Tappenden, 
 
 ruccM v. Boyal Exchange Assurance 3 East, 186. 
 Company, 1 Eq. Abr. 8, pi. 8 ;' Bex v. 
 
368 
 
 THE LAW OP CAEBIEES. 
 
 or delivering up- his ticket was to be required to pay the fare 
 from the place from which the train originally started ; and it 
 was held that this was not a by-law imposing a penalty or 
 forfeiture, and that the arrest of a passenger not producing 
 his ticket, and refusing to pay his fare from the place where 
 the train originally started, was illegal. 1 It would, however, 
 it seems, have been competent for the company, under such 
 powers, to make a by-law subjecting any passenger to a fine 
 of 408. if he entered the train without having previously paid 
 his fare, or subjecting him to a similar fine for refusing to 
 show his ticket when required. 2 
 
 Sec. 303. What By-laws can be made. — Again, where 
 one section of an act which incorporated a railway company 
 enacted, " That without extra charge it shall be lawful for 
 every passenger travelling upon the railway to take with him 
 articles of clothing not exceeding forty pounds in weight and 
 four cubic feet in dimensions ; and that the company shall in 
 no case be responsible for anything whatsoever carried upon 
 the railway with any passenger, other than such passenger's 
 articles of clothing not exceeding the weight and dimensions 
 aforesaid ; provided that nothing herein contained shall ex- 
 tend to make liable the company further than where, accord- 
 ing to law, stage-coach proprietors and common carriers 
 would be liable." Another section empowered the company 
 to make by-laws for the good government of the affairs of the 
 company, and for the management of the undertaking. The 
 company made a by-law, that every first-class passenger 
 should be allowed to carry 112 pounds of luggage free of 
 charge, but that the company would not be responsible for its 
 care unless booked and the carriage paid for. Under these 
 circumstances it was held that the company had no power to 
 make the by-law, since it was in contravention of the 1st sec- 
 tion. 8 The following case will still further illustrate the way 
 
 1 Chilton v. London & Croydon See also Barker v. Midland Rail. Co., 
 Rail. Co., 5 Rail. Cas. 4 ; 16 M. & W. 25 L. J. 184 C. P. ; Beadle v. Eastern 
 212 ; 11 Jur. 149. But see American Counties Rail. Co., 26 L. J. 250 C. P. 
 law on this subject : Redfleld on the 8 Williams v. Great Western Rail. 
 Law of Railways, vol. i. p. 89, 3d ed. Co., 10 Exch. 15 ; cf. Great Western 
 
 2 Rex v. Prere, 24 L. J. 68 M. C. Rail. Co. v. Goodman, 12 C. B. 13. 
 
RESTRICTIONS UPON CARRIERS. 369 
 
 in which the statutory powers given to company-carriers to 
 make by-laws must be exercised in order to render these 
 by-laws, when made, of any validity and binding upon the 
 public. 
 
 Sec. 304. Way in which Statutory Powers must be exer- 
 cised. — By a local act (6 Geo. IV. c. 71) the company of 
 proprietors of a public navigation were empowered to make 
 by-laws for the good government of the company, and for the 
 good and orderly using the navigation, and also for the well- 
 governing of the bargemen, watermen, and boatmen, who 
 should carry any goods, wares, or merchandise upon any part 
 of the said navigation, and to impose and inflict such reason- 
 able fines and forfeitures upon all persons offending against 
 the same, as to the major part of the company should seem 
 meet, not exceeding 51. The company made a by-law that 
 the canal should be Closed on every Sunday throughout the 
 year, and that no business should be transacted thereon dur- 
 ing such time (works of necessity only excepted) ; nor should 
 any person, during such time, navigate any boat, &c, nor 
 should any boat, &c, pass along any part of the said naviga- 
 tion on any Sunday, except for a reasonable distance, for the 
 purpose of mooring the same, and except on some extraordi- 
 nary necessity, or for the purpose of going to or returning 
 from any place of divine worship, under a penalty of 51. It 
 was held that the act did not authorize the company to make 
 any such by-law, and that it was illegal and void. 1 
 
 Sec. 305. Sufficient Publication of Notice or By-law. — 
 Doubt and difficulty always seem to arise with regard to what 
 shall be sufficient publication of a notice or a by-law which is 
 to be binding upon the public. We have already seen how 
 much doubt upon this subject influenced the law with regard 
 to the limitation of the carrier's responsibility, and we shall 
 find that with regard to the publication of by-laws, which are, 
 to some extent, of a nature similar to these notices, like diffi- 
 
 1 The Calder & Hebble Navigation Aldey v. Reeves, 2 M. & Selw. 53 ; 
 
 Co. v. Pilling, 14 M. & ~W. 76. See Dodwell v. The University of Oxford^ 
 
 also The Masters, &c. of Gunmakers v. 2 Ventr. 3334 
 Tell, "Willis, 389 ; Bosworth v. Heme, 
 
370 THE LAW OF CARRIERS. 
 
 culties have been felt. 1 It will be remembered that the 8 & 9 
 Vict. c. 20, § 110, provided that the substance of such by-laws 
 as were made in pursuance of that statute should be painted 
 on boards, &c, and affixed on the front of every wharf or sta- 
 tion belonging to the company making them, according to the 
 nature and subject-matter of such by-laws, and that with a 
 view of giving public notice to the parties interested therein 
 or affected thereby. It further provided that no penalty 
 which might be imposed by any such by-law should be recov- 
 erable unless the same should have been published, &c, as 
 aforesaid. The following section provided that evidence that 
 a copy of such by-laws was affixed as the act directed, was 
 sufficient proof of their publication. In the case of Motteram 
 v. The Eastern Counties Railway Company, 2 the exact mean- 
 ing of the act, as to the affixing of such notice, was discussed, 
 and the question was decided: This was a case, upon an 
 information before justices, charging a passenger with an in- 
 fraction of a by-law (prohibiting passengers from quitting a 
 carriage while the train was in motion), and it was proved 
 that a copy of the by-laws was affixed in the manner directed 
 by the act, at the two stations, respectively, at which the pas- 
 senger entered and quitted the carriage. This was held to be 
 sufficient proof of publication, and that it was not necessary 
 to prove further that copies were affixed at every other station 
 on the line. 
 
 This case further decided that the by-laws of a railway com- 
 pany, made pursuant to the Railways Clauses Consolidation 
 Act, sections 108 and 109, are documents of a public nature, 
 and provable as such. 
 
 Sufficient has, however, been said to enable the reader to 
 understand the subject of by-laws as modifying the relation of 
 a certain class of carriers to the public, and to appreciate the 
 force of the conditions, which must be complied with in the 
 framing of an operative by-law. These are, as we have said 
 above : 1st. That it should be reasonable, and in no way re- 
 pugnant, to the common or statute law ; 8 2d. That it should 
 
 1 Great Western Rail. Co. v. Good- ' 2 29 L. J. 57 M. C. 
 man, 12 C. B. 13; 21 L. J. 197 C. P. 8 The old rule of law which says 
 
RESTRICTIONS UPON CARRIERS. 371 
 
 be confirmed by the Board of Trade, or other authority nomi- 
 nated by the special act ; 3d. That it should be duly published 
 and affixed. When these conditions have been complied 
 with, the by-law becomes a kind of agent-law for the princi- 
 pal (the special act), and has such authority as it derives 
 from that act or from the Railways Clauses Act, and it is 
 only valid, as we have seen, when acting within the scope of 
 that authority. 
 
 SEC. 306. Restriction of Preferences. — "We come now to a 
 much larger subject than that which has fallen under con- 
 sideration in the earlier part of this chapter, and it is to 
 this portion of the subject that this chapter principally owes 
 its name. We shall find that the 17 & 18 Vict. c. 31, was 
 enacted with a view to restraining a system of preferences 
 upon the part of railway carriers, which had every chance 
 of being established. Such a system might doubtless have 
 been for the pecuniary advantages of the carriers, but it would 
 have been detrimental to the interests of the community at 
 large. 
 
 Sec. 307. Hailway Monopoly, Effect of. — We have pointed 
 out that the existence of railways produced a practical monop- 
 oly in favor of their proprietors. But the effects of a mo- 
 nopoly are not confined to the branch of trade to which it 
 originally appertains. Indeed, in any country in which the 
 social and mercantile relations are complicated, a possibility 
 of injustice in one department of the social or commercial 
 organism tends to become a possibility in other departments. 
 As the monopoly which was placed in the hands of railway 
 companies had the effect of abolishing the ordinary trade of 
 private carriers, and as all the carriage of goods which was to 
 be effected between X and Y fell into the hands of a single 
 carrying company, it was in their power to make the price of 
 carriage of unequal amount to different individuals. The 
 inevitable effect of such a proceeding would be to place in the 
 
 that a by-law bad in part is bad in good part would be valid and binding, 
 
 the whole, is qualified to this extent, — See Blackpool Board of Health v. 
 
 that if the good part be independent Bennett, 4 H. & N. 127. 
 of and unconnected with the bad, the 
 
372 THE LAW OP CARRIERS. 
 
 hands of railway companies a power of regulating trade. For 
 if A can have his goods transmitted to a certain place for half 
 the amount that his rival dealer B can have his goods trans- 
 mitted to the same place, it is evident that the latter trader 
 cannot compete in the same market with the former. The 
 monopoly also encouraged railway companies to give prefer- 
 ences to certain individuals as to the time of forwarding their 
 goods, and any such preference thrown into the scales of trade 
 in favor of one individual had the effect of crippling the other 
 in the race of competition, which it has been the object of 
 recent legislation to facilitate, and not to retard. These prac- 
 tices had been indulged in, 1 and with a view to putting an end 
 to them, the 17 & 18 Vict. c. 31, was passed. 
 
 Sec. 308. 17 & 18 Vict. c. 31. — That act is entitled 
 " An Act for the Better Regulation of the Traffic on Railways 
 and Canals," and it enacts, in section 2, that " every railway 
 company, canal company, and railway and canal company, 
 shall, according to their respective powers, afford all reason- 
 able facilities for the receiving and forwarding and delivering 
 
 1 See Parker v. Great Western Rail, the special act authorized to be taken, 
 Co., 7 M. & 6. 253. The Railways either upon the whole or on any por- 
 Consolidation Act, 8 & 9 Vict. c. 20, tions of the railway, as they shall think 
 § 90, had forbidden such practices, fit, provided that all such tolls shall 
 That act empowered all railway com- be charged equally to all persons, and 
 panies formed since the 8th May, after the same rate, whether per ton, 
 1845, to take tolls. After reciting per mile, or otherwise, in respect of all 
 that " Whereas it is expedient that passengers and of all goods and car- 
 the company should be enabled to vary riages of the same description, and 
 the tolls upon the railway, so as to conveyed or propelled by a like car- 
 accommodate them to the purposes of riage or engine passing only over the 
 the traffic, but that such power of same portion of the same line of rail- 
 varying should not be used for the way under the same circumstances; 
 purpose of prejudicing or favoring and no reduction or advance in any 
 particular parties, or for the purpose such tolls shall be made, either directly 
 of collusively and unfairly creating a or indirectly, in favor of or against 
 monopoly, either in the hands of the any particular company or person trav- 
 company or of particular parties," it elling upon or using the railway." 
 goes on to enact that " It shall be law- See Rex v. Grand Junction Canal Co., 
 ful for the company, subject to the 3 Rail. Cas. 14. See also 8 & 9 Vict, 
 provisions and limitations herein and c. 28, which gives a similar power to 
 in the special act contained, from time canal companies and to the commis- 
 to time to alter or vary the tolls by sioners of navigable rivers. 
 
RESTRICTIONS UPON CARRIERS. . 373 
 
 of traffic upon and from the several railways and canals 
 belonging to or worked by such companies, and for the return 
 of carriages, trucks, boats, and other vehicles, and no such 
 company shall make or give any undue or unreasonable pref- 
 erence or advantage to or in favor of any particular person or 
 company, or any particular description of traffic in any respect 
 whatsoever, nor shall any such company subject any particu- 
 lar person or company to any undue or unreasonable prejudice 
 or disadvantage in any respect whatsoever, and every railway 
 company and canal company, and railway and canal company, 
 having or working railways and 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 the terminus, station, or wharf of the other, shall 
 afford all due and reasonable facilities for receiving and for- 
 warding all the traffic arriving by one of such railways or 
 canals by the other without any unreasonable delay, and with- 
 out any 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 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." 
 
 SEC. 309. Near Stations, "Traffic," "Railway," "Canal," "Hail- 
 way Company," &o. — The 1st section of the same act enacts 
 that " a station, terminus, or wharf shall be deemed to be 
 near another station, terminus, or wharf, when the distance 
 between such stations, termini, or wharves shall not exceed 
 one mile, such stations not being situate within five miles from 
 St. Paul's Church in London. ' 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 carriages, wagons, trucks, boats, and 
 vehicles of every description adapted for running or passing 
 on the railway or canal of any such company. ' Railway ' 
 includes every station of or belonging to such railway, used for 
 the purposes of public traffic. ' Canal ' includes any naviga- 
 
374 
 
 THE LAW OP CARRIERS. 
 
 tion 1 whereon tolls are levied by authority of Parliament, and 
 also the wharves and landing places of and belonging to the 
 canal or navigation, and used for the purposes of public traffic. 
 The expression ' railway company,' ' canal company,' or ' rail- 
 way and canal company,' includes 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." 
 
 Sec. 310. Application to the Court of Common Fleas. — 
 Direction of Prosecution. — Issue of Writ. — Penalty. — Costs. 
 — The 3d section provides that " it shall be lawful for any 
 company or person complaining against any such companies 
 or company of anything done, or of any omission made in 
 violation or contravention of the act, to apply in a summary 
 way by motion or summons to the Court of Common Pleas, 2 
 or to a judge thereof ; and upon the certificate to the Attorney- 
 General alleging any such violation or contravention of the 
 act by any such companies or company, it shall be lawful for 
 the Attorney-General to apply to the said court or judge to 
 hear and determine the matter of such complaint, and for that 
 purpose, if the court or judge shall think fit, to direct and 
 prosecute, in such mode and by such engineers, barristers, or 
 other persons as they shall think proper, who, when directed, 
 shall be empowered to receive evidence on oath, and to admin- 
 ister an oath, relating to the matter of such inquiries as may 
 be deemed necessary, to enable the court or judge to form a 
 just judgment on the matter of such complaint ; and if it be 
 made to appear to the court or judge on such hearing, or on 
 the report of any such persons, that anything has been done, 
 or omission made, in violation or contravention of the act, by 
 such companies or company, it shall be lawful for the court or 
 a judge to issue a writ of injunction restraining the company 
 from further continuing such violation or contravention of the 
 act, and enjoining obedience to the same ; and, in case of dis- 
 obedience, it shall be lawful for the court or judge to order 
 
 1 See Bennett, v. Manchester, Shef- 2 To the Court of Session in Scot- 
 field, & Lincolnshire Rail. Co., 6 C. B. land, and to any of the superior courts 
 n. s. 715. in Dublin. 
 
EESTRICTIONS UPON CARRIERS. 375 
 
 that a writ or writs of attachment shall issue against any one 
 or more of the directors of any company, or against any 
 owner, lessee, contractor, or other person failing to obey the 
 writ, and the court or judge may also, if the court or judge 
 thinks proper, make an order directing the payment, by any 
 one or more of such companies, of such sum of money as the 
 court or judge may determine, not exceeding for each company 
 200?. for every day, after a day to be named in the order, that 
 such companies or company shall fail to obey the injunction. 
 Such moneys shall be payable as the court or judge may direct, 
 either to the party complaining or into court, to abide the ulti- 
 mate decision of the court, or to her Majesty ; and payment 
 may, without prejudice to any other mode of recovering the 
 same, be enforced by attachment, or order, in the nature of a 
 writ of execution, and in any such proceeding the court or 
 judge may order and determine that all or any of the costs 
 thereof or therein incurred, shall and may be paid by or to the 
 one party or the other, as the court or judge thinks fit." 
 
 SEC. 311. Power to rescind or vary Order. — We Come 
 now to the 5th section, which provides that, " upon the appli- 
 cation of any party aggrieved by the order made upon motion 
 or summons, it shall be lawful for the court or judge by whom 
 the order was made, to direct, if the court or judge thinks fit 
 to do so, such motion or application, on summons, to be re- 
 heard before the court or judge, and, upon such rehearing, to 
 rescind or vary such order." By the 6th section it is enacted 
 that " no proceeding shall be taken for any violation or contra- 
 vention of the above enactment, except in the manner pro- 
 vided; but nothing therein contained shall take away or 
 diminish any rights, remedies, or privileges of any person or 
 company, against any railway or canal, or railway and canal 
 company, under the existing laws." 
 
 OEC. 312. The Regulations issued by the Court of Common 
 Pleas. — In pursuance of the 4th section of the act, the Court 
 of Common Pleas promulgated forms and directions for pro- 
 ceeding under the act, which are to the following effect : — 
 
 SEC. 313. Application for Rule. — By Summons. — 1. Every 
 application made to the court shall be for a rule calling upon 
 
376 THE LAW OP CAEEIEES. 
 
 the company or companies complained of to show cause why a 
 writ of injunction should not issue against such companies or 
 company, enjoining them to do, or to desist from doing, the 
 thing required to be done, or the thing the doing of which is 
 complained of by the company or person making such applica- 
 tion ; and every application to a judge at chambers shall be by 
 summons, calling upon the company or companies complained 
 of to show cause in like manner, which summons shall be 
 granted only upon affidavit, and upon a statement made to the 
 judge in like manner as upon an application to the court for a 
 rule to show cause. 1 
 
 Sec. 314. Order. — 2. If, on the hearing of the rule or sum- 
 mons, the court or judge shall think fit to direct and prosecute 
 into the matter thereof, under section 3, an order for that pur- 
 pose is given, the rule or summons being enlarged in the 
 meanwhile. 2 
 
 Sec. 315. Copies of Affidavits to be furnished. — 3. Office 
 copies of all affidavits filed by either party, on the hearing of 
 such rule or summons, shall, at the expense of such party, be 
 furnished to the person appointed to make such inquiries, 
 within three days after the making of such order as afore- 
 said. 3 
 
 Sec. 316. Fresh Affidavits. — 4. The parties shall be entitled 
 to be again heard by the judge upon the said report, but no 
 fresh affidavits shall be allowed on such hearing, unless by 
 leave of the court or a judge. 4 
 
 Sec. 317. Common-law Rights and Remedies of Persons 
 dealing with Carriers. — It is to be understood that nothing 
 contained in the act above referred to takes away or di- 
 minishes the common-law rights or remedies of any person 
 against the company ; 6 and it is of the utmost importance 
 clearly to appreciate the effect of the provisions of the above 
 statute, as many of the questions arising in relation to carriers 
 
 1 Reg. Gen. C. P. H. T. 18 Vict, injunction is given in the fifth rule, 
 1855, 15 C. B. 473, R. 1. and that of the order directing the 
 
 2 R. 2. payment of money by the company or 
 8 R. 3. companies complained of in the sixth. 
 4 R. 4. The form of the writ of 6 17 & 18 Viet. c. 31, § 6. 
 
RESTRICTIONS UPON CARRIERS. 377 
 
 and their duties must be decided with reference to its pro', 
 visions. 
 
 Sec. 318. Difficulty of Decisions under this Statute. — The 
 powers which were by this act placed in the hands of the 
 judges of the Court of Common Pleas necessarily implied 
 the performance of a difficult duty. The determination of what 
 description of traffic afforded unreasonable advantages to par- 
 ticular persons or companies, the determination of what con- 
 stituted reasonable facilities for receiving and forwarding 
 goods, and of what might fairly be called unreasonable delay, 
 was a matter of considerable difficulty. This was the more 
 felt, because the statute afforded no guidance as to the decision 
 of any one of these matters, its language being explicitly vague 
 and comprehensive. Many complaints have been made against 
 this statute by common-law judges and lawyers, and the reason 
 of these censures is very obvious. Common-law lawyers have 
 been taught to depend exclusively upon the foredone work of 
 the legislator and the judge. Their duty has been, if we may 
 compare great things to small, like that of a tailor, who knows 
 the fashion, and measures his customer ; he was not called 
 upon to consider the appropriate use of a certain garment to a 
 certain shape. It was because of the narrowness of the prin- 
 ciple involved in this practice that the necessity of an equity 
 jurisprudence came to be felt. And from the very first in- 
 auguration of the system to the present time common-law 
 lawyers have felt themselves in an attitude of defence against 
 the encroachments of the principles of equity. 1 This attitude 
 was natural. Nature soon makes whatever we do easy, and 
 the things we do not do difficult. And it was this difficulty 
 which led to the continued separation of the two systems, and 
 which also led to the censure of the large powers which were 
 given to the judges of the Court of Common Pleas by the act 
 under consideration. Instead of being asked to shape a gar- 
 ment, such as he had been in the habit of making, to his cus- 
 tomer, the tailor was asked to find out new fashions. His 
 whole past had unfitted him to do so, and consequently we 
 
 » 
 1 Story's Equity Jurisprudence, vol. ii. § &7&, 10th ed. 
 
378 THE LAW OF CARRIERS. 
 
 find learned judges using language to the following effect, 
 that the questions involved in such an application, under 17 & 
 18 Vict. c. 31, " assume a very difficult and complicated char- 
 acter, and are such as we feel but little qualified to decide. 
 Nevertheless, as the legislature has thought fit to impose on 
 the judges of this court the duty of dealing with such ques- 
 tions, we must do so to the best of our abilities, whenever it 
 becomes necessary." 1 
 
 Sec. 319. Question considered. — For our part, we cannot 
 see that the difficulty of the performance of the duties imposed 
 upon the judges of the Court of Common Pleas in reference to 
 this matter is at all greater than that which devolves upon the 
 judges of the Court of Equity, when they are applied to for a 
 writ of injunction to stay proceedings at law, to restrain vexa- 
 tious suits, to restrain the alienation of property, to restrain 
 waste, to restrain trespasses, or to prevent other irreparable 
 mischiefs. The ascertainment of what are undue and unrea- 
 sonable preferences upon the part of a railway company does 
 not seem to us to be more difficult than the ascertainment of 
 what will constitute " extravagant humorous waste " upon the 
 part of a tenant for life without impeachment for waste, which 
 a court of equity has a right to restrain. 2 And the complaint 
 of the absence from the act of some canon of construction 
 seems unreasonable, when we remember the admirable system 
 of jurisprudence which has been constructed by our equity 
 judges. The common lawyer has been taught to look upon a 
 reference to general principles of law as a last resort, instead 
 of allowing such principles to have a concurrent jurisdiction, 
 so to speak, With the common law. Had such been the case, 
 the powers placed in the hands of common-law judges by this 
 act would not, it seems to us, have been complained of. We 
 will now, however, proceed to consider the various cases which 
 have been decided under this statute, and that will enable us 
 to quote some of the most important dicta with reference to 
 these statutory restrictions upon carriers. 
 
 1 Per Cebsswell, J., in Bansome, 2 Lord Barnard's Case, Prec. Ch. 
 
 In re, v. Eastern Counties Rail. Co., 454 ; 2 Vern. 738 ; Aston v. Aston, 1 
 
 1 C. B. n. s. 452 ; 3 Jur. u. s. 217 ; 26 Ves. 265 ; Abraham v. Budd, 2 Freem. 
 
 L. J. C. P. 91. Chy. 53. 
 
EESTRICTIONS UPON CARRIERS. 379 
 
 SEC. 320. Extent and Application of Statute. — One or two 
 cases which bear upon the extent and application of the statute 
 may be quoted before we consider under what circumstances 
 injunctions have been granted, and attempt to deduce some 
 conclusion as to what the court regards as due and reasonable 
 preferences, and what it regards as improper and unreasonable. 
 In the case of the Attorney-General v. The Great Northern 
 Railway, 1 which was an information by the Attorney-General 
 against the company, which alleged that the company dealt 
 largely in coals, and prayed that they might be restrained 
 from so employing their funds, on the ground that under the 
 , acts of their incorporation they were not justified in doing so, 
 it was alleged for the company that 7 & 8 Vict. c. 85, §§ 16 
 and 17, prescribes a particular remedy in such a case, and that 
 the Attorney-General cannot take proceedings otherwise than 
 in accordance with the terms of that provision. And it was 
 further alleged that, by virtue of 17 & 18 Vict. c. 31, the 
 proper remedy in the case was by application to the Court of 
 Common Pleas. The Vice-Chancellor, in disposing of these 
 objections, said, with regard to the first : " This objection, in 
 truth, involves the contention that this court has no jurisdic- 
 tion to entertain the suit by the Attorney-General, unless it is 
 instituted under the circumstances mentioned in those sec- 
 tions. 2 The effect of these statutes is not to take away either 
 the right of the Attorney-General to file such an information 
 at his discretion, although there is no certificate of the Board 
 of Trade, or the jurisdiction of the court, to entertain such a 
 suit. The only effect is, that if the Board of Trade has certi- 
 fied the Attorney-General, he is bound to act, and compel the 
 railway company to abstain from doing that which is in viola- 
 tion of the law ; in that particular case he can exercise no 
 discretion, he must sue ; and not only is the discretion of 
 the Attorney-General taken away in that case, but if the judge 
 finds that the acts are not authorized by the law, his discretion 
 also is taken away, and he is bound to grant the injunction." 
 In reference to the latter allegation, his Honor said : " On 
 
 1 1 Drew. & S. 154. 2 §§ 16 and 17 of 7 & 8 Vict. o. 85. 
 
380 
 
 THE LAW OP CARRIERS. 
 
 reading that Act of Parliament 1 it appears to me that it 
 applies to cases of a very different nature from the present. 
 That act applies to cases in which railway companies, acting 
 as common carriers, have favored certain individuals, and 
 given greater advantages or facilities to some persons than to 
 others. The illegal acts sought to be restrained by the present 
 suit are of a different nature." In the year previous to that 
 case, a case was decided in the Court of Common Pleas, in 
 which it was held that the 17 & 18 Vict. c. 31 (The Railway 
 and Canal Traffic Act, 1854), was designed to afford a remedy 
 against an undue preference or undue prejudice to a particular 
 individual or class in respect of the traffic on the railway or 
 canal, and was not intended to apply to the case of a breach 
 or neglect by the company of a public duty, which was already 
 susceptible of redress by mandamus or by indictment. There 
 the Manchester, Sheffield, and Lincolnshire Railway Company 
 were the proprietors of Grimsby Old Dock, and also of another 
 dock, called Grimsby New Dock, communicating with their 
 railway. By Act of Parliament, the company was authorized 
 and required to maintain the Old Dock and the approach 
 thereto, of a given depth. In conformity with the above prin- 
 ciple, it was held that the failure to perform this duty, so that 
 the dock and its approach became filled up, and the depth of 
 the water therein became insufficient for vessels to get to the 
 wharf adjoining, was not a subject of redress under this act, 
 although it was suggested that the company were desirous to 
 discourage the traffic to the old dock, and to convert it to 
 the new one. 2 
 
 Sec. 321. Jurisdiction of the Court of Chancery not abridged 
 by this statute. — One other point of importance is to be noted 
 in connection with this part of our subject, and that is, that 
 although the Railway and Canal Traffic Act, 1854, gives to 
 the Court of Common Pleas the power to grant the preventive 
 remedy — an injunction — it does not, by giving a concurrent 
 jurisdiction to that court, in any way abridge the jurisdiction 
 
 i 17 & 18 Vict. c. 31. & Lincolnshire Bail. Co., 6 C. B. k. s. 
 
 2 Bennett v. Manchester, Sheffield, 707. 
 
RESTRICTIONS UPON CARRIERS. 381 
 
 of the Court of Chancery. That, evidently, was not the inten- 
 tion of the legislature. 1 
 
 Sec. 322. Railway Company not prohibited under all Circum- 
 stances from carrying Similar Goods of Different Owners at Dif- 
 ferent Rates. — One of the earliest cases which was heard after 
 the act came into force, decided that a railway company was 
 not, under all circumstances, prohibited from carrying similar 
 goods, for one person or one company, at a less rate than they 
 •carried them for another person or company. It never had 
 been doubted that different descriptions of goods could only 
 be carried at different rates ; and, in the case referred to, the 
 decision was given upon a principle of common sense, founded 
 upon the acknowledged fact, that if it cost a railway company 
 less to carry the goods of one customer than it did to carry 
 the goods of another, they were entitled to make a reduction 
 in favor of the former. 2 But as the case is one of considerable 
 importance, and involves other points than the one stated 
 above, it may be well to state it more fully. 
 
 Sec. 323. Proceedings and Doctrine adopted in Oxlade v. 
 North-Eastern Railway Co. — A rule had been obtained, on 
 behalf of William Oxlade, calling upon the company to show 
 cause " why a writ of injunction should not issue against them, 
 enjoining them, first, to carry upon their said railway, for the 
 said William Oxlade, such coal and coke as may be offered 
 to them by the said William Oxlade for that purpose ; sec- 
 ondly, to charge for the carriage thereof respectively tolls not 
 higher than the tolls charged by the company for carrying 
 coal and coke respectively to persons for whom the same coal 
 or coke respectively are also carried on the Great Northern 
 Railway, and tolls not higher than the tolls charged by the 
 
 1 Baxendale v. West Midland Rail, which two of the judges of the Court 
 Co., 3 Giff. 650 ; affirmed on appeal, of Common Pleas held that, as the act 
 7 L. T. n. s. 297. relates to facilities for the receiving, 
 
 2 Oxladej). North-Eastern Rail. Co., forwarding, and delivering of traffic 
 1 C. B. n. s. 454 ; 3 Jur. n. s. 637 ; only, it had no jurisdiction to interfere 
 26 L. J. C. P. 129. We shall have with matters relating to the facilities 
 occasion to refer to the recent case of for storing coal after it had been de- 
 West v. London & North- Western livered to the consignee. 
 
 Rail. Co., L. Rep. 6 C. P. 622, in 
 
382 THE LAW OF CARRIERS. 
 
 said company to persons with whom the said company have 
 private agreements for the carriage of coal or coke ; thirdly, 
 to provide for the said William Oxlade depots for depositing 
 and receiving his coal and coke on the stations of the said 
 railway, similar to those provided at such stations for persons 
 with whom they have private agreements for the carriage of 
 coals along the said railway, and similar to those provided at 
 such stations for persons who consign their coal and coke to 
 the said company ; fourthly, to afford to the said "William 
 Oxlade the same facilities for the receiving and forwarding 
 and delivering of his coals and coke upon and from the said 
 railway, as the said company afford to persons who consign 
 their coal or coke, and for forwarding the same upon the said 
 railway ; and why the said North-Eastern Railway Company 
 should not pay to the. said William Oxlade, or to his attorney, 
 his costs of, and occasioned by, this application." a Affidavits 
 were filed in support of the rule and against it, and upon 
 cause being shown, it was referred to the Masters to inquire 
 and report upon the following questions : First, whether any 
 and what accommodation and facilities are provided or 
 afforded at any and what stations on the line of the said 
 company's railway for the unloading of coal and coke, and for 
 what persons, and under what circumstances. Secondly, 
 whether the said company carry coal and coke for persons 
 other than the said William Oxlade, on any and what terms 
 different from the terms on Which the said company have 
 carried or have offered to carry coals and coke for the said 
 William Oxlade. Thirdly, whether there is any and what 
 difference between the circumstances under which the said 
 company have so carried coals and coke for such other per- 
 sons, and the circumstances under which the said company 
 have carried or have offered to carry coals and coke for the 
 
 1 Subsequent to the reference to tions of the said railway, and to afford 
 
 the Master, the -rule was amended by to the said William Oxlade at the said 
 
 adding the following : " Sixthly, to stations the same facilities and acoom- 
 
 afford to the said William Oxlade all modatibns for the unloading of his 
 
 reasonable and proper facilities and coals and coke as the said company 
 
 accommodation for the unloading of afford to colliery owners or lessees of 
 
 his coals and coke at the various sta- collieries, or to any other person." 
 
RESTRICTIONS UPON CARRIERS. 383 
 
 said William Oxlade. Fourthly, whether and in what manner 
 and how the company are enabled, by reason of such differ- 
 ence of circumstances, so to carry such coals and coke for 
 such persons at a cost to the said company less than the cost 
 to the said company of carrying coals and coke for the said 
 William Oxlade. 
 
 Upon the first point the Master reported as to the accom- 
 modation afforded by the company for unloading coals and 
 coke at the different stations ; that they ascertained as nearly 
 as possible the consumption in the neighborhood of each sta- 
 tion, and the sort of coal required, and entered into terms 
 with collieries having the particular description of coal, to 
 supply the required quantity, and they appointed a depot agent 
 to manage the sale of the coal so supplied, through whom the 
 orders were transmitted to the colliery, and who accounted to 
 the colliery owners for the proceeds ; that all depots were 
 allotted to such agent ; that all coal dealers were treated 
 alike ; and that this course was adopted by the company for 
 the purpose of preventing any obstruction of the general traffic 
 of the railway. Upon the second point, he found that the 
 company charged for through rates \d. per ton per mile for 
 coal and coke going south, unless their wagons were used, in 
 which case they charged one eighth of a penny per ton per 
 mile more for the first hundred miles, and one sixteenth 
 for any distance beyond, and 3s. per day for demurrage on 
 every wagon detained more than four days off the line, and 
 there was no variation made in the charge to any one, except 
 in the case of coals carried by the North-Eastem Railway Com- 
 pany in conjunction with the Great Northern Railway Company 
 through from the collieries to London, the North-Eastern Rail- 
 way Company's haulage ceasing at York, where their railway 
 joined the Great Northern, such coal being made up into full 
 trains, and the wagons for the entire distance being provided 
 by the Great Northern Railway Company, for which the 
 charge was \d. per ton per mile for the whole distance, the 
 circumstances of the coals so carried being carried in entire 
 trains, and at regular times, and without stoppages, enabling 
 them to carry them at such lower rate. The Master also 
 
384 
 
 THE LAW OP CARRIERS. 
 
 found that a similar arrangement was made with the Midland 
 Railway Company, but not under the same circumstances, — 
 the inducement on the part of the company being a desire to 
 i introduce the northern coke into Staffordshire. 
 
 Sec. 324. Decision. — After an argument upon this report, 
 it was held : — 
 
 1. That the transaction described in the first portion of the 
 Master's report was not giving an undue or unreasonable pref- 
 erence or advantage to or in favor of any particular person or 
 company, or subjecting any particular person or company, or 
 any particular description of traffic, to any undue or unreason- 
 able prejudice or disadvantage. 
 
 2. With reference to the second part of the Master's report, 
 it was decided that it was sufficiently made out that the cir- 
 cumstances stated enabled the company to carry such coals at 
 a cost less to them than the cost of carrying coals and coke 
 for the complainant, and that by carrying them, under the 
 circumstances stated, at such lower rate, no undue or unrea- 
 sonable preference was given, or any undue and unreasonable 
 disadvantage imposed. 
 
 3. As to the third portion of the report, it was held that 
 lowering the rates, for the purpose of introducing the northern 
 coke into Staffordshire, was giving an undue preference to 
 that particular traffic, there being no special circumstances 
 affecting the pecuniary interests of the company to justify the 
 course pursued. 1 
 
 Sec. 325. Ransome v. Eastern Counties Railway Co. — In a 
 case which came before the court only the day before that last 
 considered, in the course of which it appeared that a railway 
 company had made an agreement with Messrs. E. & A. Prior 
 & Co. to carry for them a large quantity of coals during three 
 years from Peterborough to various places on their lines of 
 railway at certain rates, and that the complainant, a coal mer- 
 chant in Ipswich, sent coals (which had been brought to that 
 port by sea) to various places on the same lines of railway, 
 and that the company charged him a much larger sum per ton 
 
 1 Oxlade v. North-Easteni Kail. Co., 1 C. P. h. s. 454 ; 3 Jur. n. s. 637 ; 
 26 L. J. C. P. 129. 
 
RESTRICTIONS UPON CARRIERS. 385 
 
 in proportion to the distance over which his coals were carried 
 than they charged Messrs. E. & A. Prior & Co., the professed 
 object of the difference being to enable Messrs. B. & A. Prior 
 & Co. (whose coal came to Peterborough by railway) to com- 
 pete in the coal trade of the district with the complainant, who 
 had the advantage of having his coals brought to Ipswich by 
 sea. And this was held to be giving an " undue preference " 
 to Messrs. E. & A. Prior & Co. 
 
 SEC. 326. Meaning of " Undue and Unreasonable Preference," 
 &c. — In giving judgment in the last-named case, Cresswell, 
 J., said : " The first thing to be ascertained is the meaning of 
 the expressions ' undue or unreasonable preference or advan- 
 tage,' and ' undue or unreasonable prejudice or disadvantage.' 
 Are these words to be construed with reference to the inter- 
 ests of persons using the railway only ? or may the interests 
 of the railway owners be taken in any manner into considera- 
 tion ? Ex. gr., if one thousand tons can be carried for a lower 
 sum per ton per mile than one hundred tons, yielding an equal 
 profit per ton to the railway company, may they so regulate 
 the charges as to derive such equal profit ? Would the lower 
 rate charged for the larger quantity give an undue prefer- 
 ence 1 X Or if goods can be carried one hundred miles at a 
 lower rate than ten, and yield an equal profit per ton per mile, 
 may the company charge less per mile for those carried one 
 hundred miles without giving an undue or unreasonable pref- 
 erence ? If that may be done without giving what the statute 
 calls an undue or unreasonable preference, may not the com- 
 pany in fixing the rates consider the whole profit, and not the 
 mere profit per mile, and, in order to induce people to carry 
 more on their line, and for longer distances, agree to make a 
 reduction in such a case ? It is true that the sender of smaller 
 quantities for a shorter distance will pay more per mile and 
 more per ton in respective cases; but will that be an undue or 
 unreasonable disadvantage ? " He put another case thus : " If 
 two railways start from the same terminus, and arrive at the 
 same terminus by different routes, must they, charge for the 
 
 1 See Oxlade v. North-Eastern Rail. Co., ante, p. 381 et seq. 
 25 
 
386 
 
 THE LAW OP CARRIERS. 
 
 whole line at the same rate as from intermediate stations to 
 either terminus ? Ex. gr., the London and South-Western 
 vid Bishopstoke and Winchester, and the London, Brighton, 
 and South Coast, by Brighton : must they charge as much per 
 mile for passengers and goods from Portsmouth to London as 
 from Winchester or Brighton to London ? Or may they carry 
 at a lower rate the whole distance in order to compete with 
 each other without being subjected to the charge of imposing 
 on the Winchester and Brighton traffic an undue or unreason- 
 able disadvantage ? " and his Lordship added, that the court 
 was of opinion that the fair interests of the railway ought to 
 be taken into account in the decision of such cases. 1 
 
 Sec. 327. Object of Legislature. — The object of the legis- 
 lature was certainly for the protection of trade, which might, 
 as we before said, be materially injured by the existence of 
 an unregulated monopoly. That such a contingency was 
 likely to arise — nay, that such an event was inevitable — had 
 been proved by the facts adduced in the two last quoted cases. 
 In the one, a railway company was endeavoring to direct a 
 trade into a certain place ; and in the other, a railway com- 
 pany was proved to be endeavoring to favor the competition 
 of a certain firm in a place, and under circumstances which, 
 but for the interference of the company, that firm would never 
 have attempted to maintain. The evils which would have 
 resulted from such a system would have been incalculable, 
 and it was upon that account that the legislature interfered. 
 But it was not with the view of .disturbing the ordinary self- 
 adjustive requirements of trade that this Act of Parliament 
 was passed ; and the circumstances under which a railway com- 
 pany carry, and the possible expense which they may incur in 
 the transit of different quantities of goods, stand precisely 
 upon the same ground, as to the consideration and determina- 
 tion of the rate at which they shall be carried, as the circum- 
 stances which attend the conveyance of different kinds of 
 goods, or similar goods for different distances. 
 
 Sec. 328. Principles of Inequality. — No man could com- 
 
 1 Ransome, In re, v. Eastern Counties Rail. Co., 1 C. B. n. s. 437 ; 3 Jur. 
 n. s. 217; 26 L. J. C. P. 91. 
 
RESTRICTIONS UPON CARRIERS. 387 
 
 plain that he was charged a different rate for the conveyance 
 of his ton of coals than that which was charged to his neigh- 
 bor for the conveyance of his ton weight of live-stock. Nor 
 could a man demand that there should be a uniform rate of 
 carriage for a ton of coals, whatever the distance of the tran- 
 sit. If such demands be unreasonable and absurd, the prohi- 
 bition of them would be just and reasonable. And to interfere 
 in the case of the cheaper conveyance of larger quantities, or of 
 similar quantities for longer distances, would be as ridiculous 
 and ill-advised a step as either of those above indicated. In 
 this particular the intention of the legislature has been carried 
 out to the fullest extent by the decisions referred to above. 
 
 SEC. 329. Circumstances which will warrant an Injunc- 
 tion. — It would have been a perilous thing to allow railway 
 companies to deprive individuals of the advantages which they 
 had with reference to the supply of a particular market, and 
 would ultimately have done irreparable injury to the railway 
 companies themselves by limiting and injuring the trade, on 
 the healthy condition of which railway companies must 
 depend for their prosperity. So it would have been an error 
 to allow a railway company to endeavor to make up to an 
 individual for the natural disadvantages of the position of his 
 colliery in relation to their line, by allowing him reduced 
 charges in consequence of the expense he had been put to in 
 connecting his colliery with their line of railway. Such a pro- 
 ceeding upon the part of the railway company would have 
 been an unwarrantable deprivation of the advantages which 
 any colliery proprietor had a right to on account of the com- 
 parative proximity of his colliery to their line, and was a 
 proper case for an injunction. 1 
 
 Sec. 330. Threat of New Railway not a good Ground for 
 Reduction of Rates. — Private Bargains. — In the Case in which 
 that doctrine was expressed, there was also a point of much 
 importance decided, and that was, that a threat upon the part 
 of any customer of a railway company that the customer 
 would construct a railway which would deprive them of his 
 
 1 Harris v. Cockermouth & "Workington Rail. Co., 3 C. B. n. s. 693 ; & Jur. 
 U.S. 239; 27 L.J. C. P. 162. 
 
388 THE LAW OF CARRIERS. 
 
 traffic, was not a good ground for the reduction of a rate of 
 carriage, and that if, in consequence of such a threat being 
 used, such a reduction was made, it would be held an undue 
 preference. In commenting upon the question as to whether 
 such a threat was a sufficient reason for or justification of the 
 difference in charges, Cockburn, C. J., said : " In my opinion, 
 that is not a sufficient ground for the preference so given. 
 The company are bound to regulate their charges so as to be 
 equally applicable to all persons similarly circumstanced. If 
 we were to take into consideration the circumstances upon 
 which the company rely for their justification, there is no 
 case in which we might not be called upon to consider the 
 circumstances which might influence a party to send his goods 
 by a particular railway ; every man would be making his own 
 bargain ; and it would always be a question how far the com- 
 pany were justified in the particular case in departing from 
 the general rule. I do not think it was the intention or the 
 policy of the legislature to permit railway companies to make 
 private bargains to give advantages to individuals, which must 
 be attended with corresponding disadvantages to others. The 
 obvious intention was, that there should be an equal rate of 
 charge in respect of the carriage of all goods under the like 
 circumstances ; and that, although the company may be justi- 
 fied in laying down special rules applicable to particular cases, 
 provided that they bond fide act with reference to their own 
 interests and the interests of the public, they are not at liberty 
 to make special bargains with individuals, whereby one is 
 benefited to the prejudice of another." 1 
 
 SEC. 331. Preference to Persons who consign to Company's 
 Agents. — These principles would have been contravened had 
 the North Devon Eailway Company been allowed to give the 
 preference which it promised to those persons who, in sending 
 goods, consigned them to their agents. That company, being 
 possessed of a line of railway, advertised to convey goods in 
 conjunction with another railway company to a place beyond 
 the limits of their own line at the rate of 50s. per ton, " pro- 
 
 1 Harris v. Cockermoutli & Workington Rail. Co., 3 C. B. n. s. 712. 
 
RESTRICTIONS UPON CARRIERS. 389 
 
 vided they were consigned by and to their own agents at these 
 respective places ; " but if the goods were consigned through 
 any one else, the company were to charge 2s. 6d. per ton more. 
 This was held to be a ground for injunction under 17 & 18 
 Vict. c. 31. 1 
 
 SEC. 332. Circumstances of General and Local Character to 
 be considered. — Small Parcels. — Additional Trouble. — All- 
 other case, in which the question of what circumstances would 
 justify a difference of charge, and in which additional strength 
 was given to the intimations (if not absolute decisions) in 
 Eansome's Case 2 and Oxlade's Case, 3 that a railway company 
 is entitled, in determining the rate of tolls they will impose 
 upon any particular traffic, to take into consideration any cir- 
 cumstances, either of a general or local character, which may 
 enable them to charge less in one case than in others, came 
 before the court. There it appeared that a railway company 
 had power by their act to charge any rate they thought proper 
 for parcels under one hundredweight, while by another section 
 they were to charge rates and tolls equally, and to make 
 advances and reductions of rates without partiality. The com- 
 pany (the defendants) charged the plaintiffs, the only common 
 carriers on their line, certain rates for parcels under one 
 hundredweight, but if there were various small parcels of the 
 same article, though loose, delivered at one time and directed 
 to the same person, amounting to more than one hundred- 
 weight, they weighed and entered them in the bulk and 
 charged the lower or tonnage rate ; but if the parcels, al- 
 though delivered at the same time, were directed to different 
 persons, they weighed and entered them separately, and 
 charged the higher or small parcels' rate, even although the 
 whole were to be delivered to the plaintiffs at the end of the 
 
 1 Baxendale v. North Devon Rail. L. J. C. P. 222 ; 24 L. J. H. s. 830. 
 
 Co., 3 C. B. n. s. 324. See also, with But see a Scotch case in which a differ- 
 
 reference to this subject, two more eut doctrine seems to have been laid 
 
 recent cases, Palmer v. London, Brigh- down, Pickford v. Caledonian Rail. Co., 
 
 ton? & South Coast Rail. Co., 6 L. R. 31 May, 1866, 4 Macph. 755 ; 38 Jur. 
 
 C. P. 194; 40 L. J. C. P. 133; 19 399. 
 
 W. R. 627 ; Parkinson v. Great West- 2 Ante, p. 384 ; 1 C. B. s. 8. 437. 
 ern Rail. Co., 6 L. R. C. P. 554 ; 40 8 Ante, p. 381 ; 1 C. B. n. s. 454. 
 
390 THE LAW OF CARRIERS. 
 
 journey. If among many parcels there were several directed 
 to one person, exceeding together one hundredweight, they 
 were lumped and charged at the tonnage rate. It was held in 
 this case that there was nothing to induce the court to infer 
 that the charges so made were unreasonable, regard being had 
 to the additional trouble of the company ; for it appeared that 
 the directed parcels, even although they were all to be de- 
 livered to the plaintiffs, caused considerable additional labor 
 to the defendants in their collection for delivery to the con- 
 signee, and therefore, for that additional labor, they were 
 entitled to additional remuneration, and hence arose a per- 
 fectly just and reasonable distinction between two sets of 
 charges. 1 So, where a railway company (the London and 
 South- Western Railway Company), which had been in the 
 habit of unloading goods conveyed by them on their railway, 
 by taking them out of the trucks and placing them in or 
 adjacent to the wagons of the consignees, established a new 
 system, under which they declined to allow their servants to 
 unload the goods of the complainant (Mr. Cooper) from their 
 trucks without extra charge, at the same time they continued 
 to unload the goods of Messrs. Pickford & Co., as these, from 
 the smallness of their quantity, were not carried, like the 
 goods of the complainant, in separate trucks, but were mixed 
 with the company's own traffic, and it was, therefore, for the 
 company's own convenience that they unloaded them from 
 the trucks, the court refused to make absolute a rule for an 
 injunction under the Railway Traffic Act, 1854, enjoining the 
 company to unload the trucks containing the complainant's 
 goods, and to deliver such goods to the complainant by placing 
 the same in or adjacent to his wagons ; but the court inti- 
 mated that if Mr. Cooper's complaint had been confined to the 
 company's giving an advantage to Messrs. Pickford & Co. in 
 the unloading of their goods, which they withheld from him, 
 he might have been entitled to relief. 2 There can be little 
 
 doubt that upon this second point the court would — had the 
 
 • 
 
 1 Biixendale v. Eastern Counties 2 Cooper v. South- Western Rail. 
 Rail. Co., i C. B. n. s. 63; 27 L. J. Co., 4 C. B. 738; 27 L. J. C. P. 
 C. P. 137. 324. 
 
RESTRICTIONS UPON CARRIERS. 391 
 
 circumstances of the case permitted it — have done well to 
 interfere. But there can be as little doubt that it would have 
 erroneously exercised its power in compelling the company to 
 continue to the complainant a privilege which he had once 
 enjoyed. 
 
 Sec. 333. Where System of Conveyance is dictated by 
 Company's Convenience. — In Eansome v. Eastern Counties 
 Railway Company, 1 it was proved that the defendant railway 
 company had established a system of carrying coals according 
 to assigned districts comprising certain places on their lines 
 and branch lines, — ■ carrying them within those districts at 
 certain lower rates, for quantities not less than a train load of 
 200 tons. By reason of this arrangement the complainants, 
 who were coal merchants, carrying on their trade at Ipswich 
 and several other places (eight in all) on the branch lines of 
 the company, found that their places of business were dis- 
 tributed among those of the company's districts, so that, to 
 enable them to take advantage of the reduced rates, they 
 would have had to send from Ipswich to their outlying places 
 of business three trains with loads of not less than 200 tons 
 each, or one train to each of the districts in which their places 
 of business were situated. This would have been an amount 
 too large for the trade. On the other hand, the dealers at 
 Peterborough, by reason of the fact that one of the company's 
 districts embraced seven of the eight places at which the 
 complainants dealt, were enabled to send their coals in such 
 quantities as to avail themselves of the reduced rates. As, 
 however, it was sworn, upon the part of the company, that 
 these districts were adjusted, not with a view to give an undue 
 preference to the one set of dealers over the other, but solely 
 with a regard to their own convenience, and their conception 
 of the requirements of the neighborhood, it was held that it 
 was not a case for interference, as the complainants had not 
 shown that they were unduly subjected to this disadvantage, 
 or that it was caused by undue preference. 
 
 Sec. 334. Policy of the Law. — It is clear that the object 
 of the act was not to relieve any person or company from the 
 
 1 i C. B. n. s. 135 ; 27 L. J. C. P. 166; 4 Jur. h. s. 284. 
 
392 THE LAW OP CARRIERS. 
 
 possible prejudice or disadvantage of any arrangement which 
 might be made by a railway company, even although that 
 arrangement might indirectly favor some other person, if the 
 arrangement was for the advantage of the public at large, for 
 the reasonable increase of the prosperity of the company, and 
 had not been entered into with a view to the advantage or 
 preference of the one party, or the disadvantage or prejudice of 
 the other. But, as in the case to which we have just referred, 
 it appeared that the company had made a scale of charges 
 for the carriage of coals from Peterborough and Ipswich re- 
 spectively, to various places, which practically diminished 
 the distance of Peterborough from those places, by diminish- 
 ing the expense of conveyance comparatively with the expense 
 of conveyance from Ipswich to the same places, and conse- 
 quently diminished the natural advantage which the latter 
 place had by reason of its proximity to these places, and upon 
 this ground it was held that the company had given an undue 
 preference to the dealers in Peterborough. 1 
 
 SEC. 335. Where Arrangements Beneficial to Individuals 
 may be made. — Such a decision does not, however, militate 
 against the principles stated above, and, in a case which 
 came before the court, it was expressly decided that it is 
 competent to a railway company to enter into special arrange- 
 ments and agreements, whereby advantages may be secured 
 to individuals, in the carriage of goods upon the railway, where 
 it is made clearly to appear that in entering into such agree- 
 ments the company has only the interests of the proprietors 
 and the legitimate increase of the profits of the company in 
 view, and the consideration given to the company in return 
 for the advantages afforded by them is adequate, and the 
 company is willing to afford the same facilities to all others 
 upon the same terms. 2 
 
 Sec. 336. Where Large Quantities are guaranteed. — Audit 
 
 1 Ransome v. Eastern Counties & Workington Rail. Co., 3 C. B. n. s. 
 
 Rail. Co., 4 C. B. n. s. 135 ; 4 Jur. 693 ; 4 Jur. n. s. 239. 
 n. s. 284 ; 27 L. J. C. P. 166. The 2 Nicholson v. Great Western Rail, 
 
 principle involved is the same as that Co., 4 C. B. u. s. 366 ; 28 L. J. C. P. 
 
 in the case of Harris v. Cockermouth 89 ; 4 Jur. n. s. 1187. 
 
RESTRICTIONS UPON CARRIERS. 393 
 
 was also held that the 2d section of 17 & 18 Vict. c. 31, was 
 not contravened by a railway company 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 com- 
 pany is to obtain thereby a greater remunerative profit by the 
 diminished cost of carriage, although the effect may be to ex- 
 clude from the lower rate those persons who cannot give such 
 a guarantee. 1 It is not within the province, if it is within the 
 power, of Acts of Parliament to do away with the inevitable 
 advantages which large capital must have in the competition 
 with small capital, and one of the legitimate advantages it 
 possesses is the possibility of making better terms. Large 
 transactions can, of course, be done cheaper than small. The 
 transacting costs money. And it is because it is so that goods 
 bought wholesale are cheaper than those bought retail. So it 
 is that a railway company can carry large quantities of goods 
 at a cheaper rate per ton per mile than small quantities. 
 
 oEC. 337. Reduction on account of Cheapness not an Undue 
 Preference. — That being an undoubted fact, we have seen that 
 if a company does reduce its charge on account of the cheap- 
 ness with which it can do the Work expected of it, it does not 
 thereby give an undue preference. So in the case where large 
 quantities are not sent at one time, but at stated intervals, the 
 fact in reference to the cheapness with which the railway com- 
 pany can transmit these being the same, it is only a very slight 
 extension of the principle above alluded to, which enables a 
 company to carry these at a lower rate without incurring the 
 possibility of being restrained from so doing under this act. 
 
 SEC. 338. Agreement to employ other Lines of Company 
 " Undue " Ground of Reduction. — It was imagined that it would 
 only be another slight extension of the same rule which would 
 enable a railway company to give a preference to a customer 
 who engaged to employ other lines of the company for traffic, 
 which lines were, however, distinct from and unconnected 
 with that in respect of which such preference was given. 2 But 
 
 1 Nicholson ». Great Western Rail. 2 Baxendale v. Great Western Kail 
 Co., 4 0. B. jr. s. 366. Co., 5 C. B. n. s. 309; 28 L. J. C. P. 
 
 69 ; 4 Jur. N. s. 1241. 
 
394 
 
 THE LAW OF CARRIERS. 
 
 it has been decided that such a preference would be an undue 
 one, and upon the obvious ground that another principle was 
 involved in the case from that which was involved in the case 
 of Nicholson v. The Great Western Bailway. 1 
 
 Sec. 339. Principle involved. — Where the transactions are 
 totally distinct, and the lines of rail are not the same, any such 
 agreement tends to place a restriction upon trade, and the 
 preference which is given upon this understanding is apt to 
 bring the carrying company and the trader into such a rela- 
 tion that they will be in a position to combine against the 
 public ; and it was exactly this evil that the Eailway and Canal 
 Traffic Act, 1854, was introduced to prevent. 
 
 Sec. 340. The Company's Rates must not operate to Disad- 
 vantage of Third Parties. — We have seen that where special 
 agreements are entered into between railway companies and 
 individuals to secure to the latter advantages in regard to the 
 goods sent by them on the company's railway, it must appear 
 that such agreement has only the interest of the proprietors, 
 and the legitimate increase of the profits of the railway in 
 view, otherwise it would be held to be an undue preference. 
 But this doctrine must be still further limited to be clearly 
 understood ; for if the company fixes a rate of tolls to be taken 
 on the railway with a view to the promotion of their own 
 interests, but which subjects others to unreasonable disadvan- 
 tages, or operates to their disadvantage by giving undue pref- 
 erence to third parties, the court will interfere. Thus, where 
 a railway company formerly charged a uniform rate of 3s. 6d. 
 per ton on all goods conveyed on their line between two places 
 — Reading and Paddington — and the goods were collected 
 and delivered, both by the company and the complainants, at 
 a charge of 4s. lOd. per ton, it appeared that the company, 
 who had power under their act to impose their own rates of 
 charge for carrying, but no power to impose tolls for collect- 
 ing and delivering, raised the charge for carrying to 8s. 4d., 
 being the aggregate of the above two charges, with an intima- 
 tion to the public that they would collect and deliver goods 
 free of all charge. The obvious purpose of the arrangement 
 
 1 4 C. B. n. s. 366 ; 28 L. J. C. P. 89. 
 
RESTRICTIONS UPON CARRIERS. 
 
 395 
 
 and announcement was to compel persons desiring to have 
 their goods conveyed by the railway, to employ the company 
 to collect and deliver such goods, and thus to secure this busi- 
 ness and the profits upon it to the company, as well as to 
 exclude the complainants from competing with them in this 
 department of business. That being so, it was held that this 
 arrangement was an undue preference to the company in their 
 separate capacity of carriers, other than on the line of railway, 
 and also an undue prejudice to the complainants. 1 There is 
 much in the judgment of the Chief Justice which bears on the 
 principles involved in many cases which may arise in practice, 
 and we follow the example of another writer on this subject, 2 
 by availing ourselves of his admirable statement of the law. 
 He said : " It is abundantly clear from the statutory enact- 
 ments, which enjoin on railway companies the obligation to 
 afford accommodation on equal and reasonable terms, and 
 from the provisions of the statute, by which jurisdiction is 
 given to this court, against the affording of undue preference 
 or disadvantage, that it was not the intention of the legislature 
 to leave to railway companies the unfettered exercise of their 
 rights as proprietors of their respective lines; but in return 
 for the great power which it has conceded to them, and the 
 monopoly of the carrying business of the country, which in a 
 great degree they have been enabled to acquire, it has im- 
 posed upon them the obligation of affording accommodation on 
 equal terms to the whole of the public." 
 
 SEC. 341. Separate Interests vested in same Company. — 
 "With reference to the question of separate interests being 
 vested in the same company, he went on to remark : " It may 
 be convenient in the first place to advert to a distinction, not 
 always kept in sight in argument, between cases in which the 
 interest of the company sought to be promoted by the regula- 
 tion or act complained of is one which arises with reference 
 to the railway itself as to which the question occurs, and those 
 in which the benefit sought to be obtained by the company is 
 one which has reference to interests distinct from those of the 
 
 ^ Baxendale v. Great Western Rail. Co., 5 C. B. w. s. 336 ; 28 L. J. C. P. 
 81*; 4 Jur. h. s. 1279. 2 Powell on Carriers. 
 
396 THE LAW OP CARRIERS. 
 
 particular railway ; as where, for example, the company are pro- 
 prietors of another railway, or carry on some other business. 
 
 SEC. 342. Position jot the Company in relation to Separate 
 Interests. — " In the latter class of cases it appears to us clear 
 that the company must be taken to be, quoad the particular 
 railway, in the position of third parties, and that they cannot, 
 with a view to such separate interests, give an undue prefer- 
 ence, or impose an unreasonable disadvantage, any more than 
 they could do so to promote the interests of any other party. 
 Thus, if a railway company, being proprietors of one line from 
 A to B, and of another line from C to D, were, in order to 
 obtain the custom of a particular individual on the first of 
 those lines, on which they might be subject to competition 
 from a rival line, to agree to convey his goods on the line 
 from C to D at a cheaper rate than those of another person 
 using only the latter line ; or if a railway company, carrying 
 on, in addition to its business as carriers on the line, that of 
 carriers to and from the termini of the railway, were, with a 
 view to obtain additional custom in the latter, to carry on the 
 railway for those who employed them as carriers to and from 
 the railway at a lower rate than for those who did not ; — in 
 both these cases we should have no difficulty in holding that 
 the company must be considered, as regards those separate 
 interests, in the light of third parties, and that they cannot 
 promote these at the expense of the right of the public to that 
 equality on the particular railway which it was the intention 
 of the Act of Parliament to secure. 
 
 SEC. 34-3. Where the Company seeks to promote its own 
 Interests without Regard to the Interest of Others. — " Greater 
 difficulty and uncertainty arise in dealing with cases in which, 
 the purpose and effect of the thing complained of is the benefit 
 of the company in their character of proprietors of a particu- 
 lar railway. In these cases the court might feel a greater 
 reluctance to interpose, partly from an unwillingness to inter- 
 fere with the parties in the management of their own affairs 
 for their own advantage, partly from a disposition to give com- 
 panies credit for acting on an enlightened view of their own 
 interests, as identified with those of the public ; yet if the 
 
KESTRICTIONS UPON CARRIERS. 397 
 
 court became clearly satisfied that the company were seeking 
 to promote its own advantage by establishing an inequality, 
 which was unreasonable under the circumstances, and oper- 
 ated unfairly and injuriously upon particular individuals, or 
 that it was affording to one person, or set of persons, an ad- 
 vantage which it would not afford to another under similar 
 circumstances, this court would not hesitate to interfere to 
 prevent such a result, although by so doing they might pre- 
 vent the company from securing all the profit that it might 
 otherwise derive from the use of its property. Thus, where 
 the complaint made was that a railway company, as between 
 two intermediate stations, charged a higher rate than was due 
 to the intermediate space in proportion to the charge made on 
 the entire line of railway, this court, if it were made to ap- 
 pear that the disproportion was not justified by the circum- 
 stances of the traffic, — in other words, was an undue prejudice 
 or unreasonable disadvantage to those using the part of the 
 railway in question, — would interfere to set aside such an 
 arrangement. 1 
 
 Sec. 344. The Advantage must be given to all Persons 
 similarly Circumstanced. — " So, again, if an arrangement were 
 made by a railway company, whereby persons bringing a 
 larger amount of traffic to the railway should have their 
 goods carried on more favorable terms than those bringing a 
 less quantity, although the court might uphold such an ar- 
 rangement as an ordinary incident of commercial economy, 
 provided the same advantage were extended to all persons 
 under the like circumstances ; yet it would assuredly insist on 
 the latter condition, and would interfere in the case of any 
 special agreement, by which the company had secured to a 
 particular individual the benefit of such an agreement to the 
 exclusion of others ; or even where an attempt had been made 
 by keeping the agreement secret, to make it operate unduly to 
 the prejudice of third parties. 
 
 SEC. 345. Where the Interest of the Company causes Unrea- 
 sonable Disadvantage. — " This reasoning appears to us effectu- 
 ally to dispose .of the argument that the court cannot inter- 
 
 1 See In re Jones and the Eastern Counties Rail. Co., 3 C. B. s. s. 718. 
 
398 
 
 THE LAW OP CARRIERS. 
 
 fere to prevent a railway company from fixing the rate of 
 tolls to be taken on its railways, in such a manner as shall 
 best promote its own interests in cases where, by so doing, 
 the company subject others to unreasonable disadvantages, or 
 operates to their prejudice by giving undue preference to third 
 parties." It was argued by the defendants that, as they had 
 the power to raise their rates of charges for carrying on their 
 line, and as they had done so equally with regard to all cus- 
 tomers, they were not within the statutory prohibition against 
 undue prejudice, by performing other duties than those which 
 their character of railway carriers made necessary. As to 
 this, the Chief Justice said : " "We think this argument rests 
 upon two obvious fallacies, — first, that if, supposing that the 
 whole charge in question is one made by the company in ref- 
 erence to their character and interests with respect to the 
 railway, whereas, in reality, the charge is made by them in a 
 character and interest independent of the railway, viz. as 
 carriers to and from the termini of the railway ; secondly, 
 that the company can convert that which is in reality a charge 
 for collecting and delivering as well as for carrying, into one 
 for carrying only, by affixing to it the latter denomination in 
 their table of rates. It is true, no doubt, that the company's 
 acts give them the power to impose their own rates of charge 
 for the carriage of this description of traffic : but these acts 
 give them no power to impose tolls or charges for collecting 
 and delivery ; and it is palpably an abuse of their powers, if, 
 under the name of a charge for carrying on their line, they 
 impose, otherwise than with the assent of the parties 
 concerned, a charge for a totally different thing. Again, 
 although the legislature has conferred the power of imposing 
 rates of charge, it has annexed to this power the obligation of 
 imposing such rates equally ; and the company cannot be per- 
 mitted to evade this obligation by colorably pretending that 
 that which is in fact a charge for other things as well is a 
 charge for carriage only. 
 
 SEC. 346. The Court will prevent what is, in Effect, an 
 Injustice. — " The court is bound to look at the transaction in 
 its true light, and cannot suffer itself to be diverted from its 
 
RESTRICTIONS UPON CARRIERS. 399 
 
 duty of interfering to prevent what,, in effect, is such an injus- 
 tice as it was the purpose of the legislature to prevent, because 
 the transaction is attempted to be covered over by a transpar- 
 ent disguise. Looking, then, at the alteration in the rates in 
 its true light, we are of opinion that the arrangement is objec- 
 tionable, both as an undue preference given on the one hand, 
 and as an unreasonable disadvantage imposed on the other. 
 It is an undue preference to the company in their separate 
 capacity of carriers other than on the line of railway, inas- 
 much as they thereby practically secure to themselves the 
 entire monopoly of the last-mentioned traffic, to the entire 
 exclusion of the complainants and all others. It is an undue 
 prejudice and an unreasonable disadvantage imposed on the 
 complainants, inasmuch as it is plain that their goods and 
 those of all persons employing them, as, indeed, the goods of 
 all persons other than those who employ the company to col- 
 lect and deliver, must be subjected, as compared with the 
 goods of the latter, twice over, to the expense attendant on 
 collection and delivery, if they employ others to collect and 
 deliver for them, or to an unnecessary charge if they require 
 no such accommodation." 1 
 
 It was upon these grounds that the court felt it to be their 
 duty to interfere. 
 
 Sec. 347. The Principles of the Decision. — The principles 
 laid down in the above judgment cannot be called in question. 
 It would not be for the advantage of the public that a railway 
 company, which happened to carry on some other branch of 
 trade besides that of carrying upon their line, should have the 
 power to prefer itself in the latter capacity to others who 
 prosecuted the same calling, in so far as the conveyance of 
 goods was concerned. One obvious result of such a practice 
 would be, that the railway company could distance all compe- 
 tition in the supply of the particular commodity in which it 
 dealt ; but when one of the parties competing distances all the 
 others, it ceases to be competition; and in _ this particular 
 
 1 See also Parkinson v. Great West- But see Pickford v. Caledonian Rail, 
 ern Rail. Co., 6 L. R. C. P. 554; 40 Co., 31 May, 1866, 4 Macph. 755. 
 L. J. C. P. 222; 24 L. T. n. s. 830. 
 
400 THE LAW OF CARRIERS. 
 
 case all the rivals of the railway company would inevitably 
 be driven out of the field whenever that undesirable result 
 was produced. The company carrier and trader would sell its 
 goods at a monopoly price, without the least fear of having to 
 lower its prices on the ground of competition, as it could again 
 lower its rates for a time, and so drive competition again out 
 of the field. 
 
 Sec. 348. The Railway Company's two Capacities. — Now 
 there was in this case an evident distinction between the two 
 capacities in which the railway company worked. It ca-ried 
 goods as a railway carrier, and it also carried goods as a col- 
 lector and deliverer to the railway company. In the first 
 capacity it gave an undue preference to itself in its second 
 capacity, and the allegation that it received nothing for collec- 
 tion and delivery was disproved by the circumstances of the 
 case. A railway company cannot afford to collect goods, unless 
 it is remunerated for so doing. It will not undertake outlay 
 without a certainty of reimbursement. And it matters not 
 whether it is called charge for carriage by rail, or whether the 
 company professes to collect free of cost, the fact is the same, 
 that they are being remunerated for the collection, as well as 
 for the carriage ; and by making the charge for goods which 
 they do not collect, the same as that for goods which they do 
 collect, they are obviously, in the matter of charge for the 
 carriage of the goods, giving an advantage to themselves as 
 collectors and deliverers. The result would have been the 
 ruin of the complainants and others, who were engaged in 
 the trade of collecting and delivering, and the interference of 
 the court was imperatively called for. The principle upon 
 which the decision in Garton v. The Great Western Railway 
 Company x was founded, was precisely similar to that involved 
 in the case just alluded to. 
 
 Sec. 349. Other Preferences considered. — Collection and 
 Delivery. — The Time of Closing Station. — Price of Carriage. 
 — In another case, in which this subject was brought before 
 the court, the grounds of complaint against the company were 
 three : " First, that the charge made by the railway company 
 
 1 5 C. B. n. s. 669; 28 L. J. C. P. 158. 
 
RESTRICTIONS UPON CARRIERS. 401 
 
 to the complainants for forwarding packages by the van and 
 passenger trains from station to station was the same as the 
 public were charged for so forwarding from station to station, 
 and for collection and delivery; secondly, that the Bristol 
 Goods Station of the company was closed against the recep- 
 tion of goods from the complainants at an hour in the evening 
 after which the company received goods brought there by 
 their agent, Mr. Wall; and, thirdly, that the complainants 
 were charged on all goods from Bristol to Bridgewater and 
 Bridgewater to Bristol at the rate of 6s. 8c?. per ton for the 
 firstclass goods, 8s. id. per ton for the second-class goods, 
 12s. 6d. for third-class goods, and 16s. 8d. for fourth-class 
 goods, whilst certain persons at Bridgewater were charged 
 only at the rate of 6s. per ton for goods of all classes. With 
 regard to the first of these complaints there can, after what 
 has been said above, be no doubt as to the .answer which the 
 court gave to it. As to the second, it appeared that the re- 
 spondent company closed its goods station at Bristol at 5.15 
 against all persons except its agent, Mr. Wall, who had a 
 receiving-house about a mile distant from the station, and 
 from whom the company received goods up to 8 p. m. It also 
 appeared that, for the conveyance of goods from the receiving- 
 house to the station, the agent, Wall, charged Is. 8d. per ton 
 on all goods above 3 cwt., and 3d. for each package below 
 that weight. Although it appeared, upon the oath of the com- 
 pany, that the goods brought to the station by their agent 
 were properly classified, weighed, and prepared for loading, it 
 was held that the company, by so doing, was imposing an 
 undue prejudice upon the complainant. 1 
 
 SEC. 350. Special Contract for Diminished Rate must be 
 justified by Special Circumstances. — The third point was, that 
 there was an undue preference of certain parties in so far as 
 the charge for the conveyance of goods from Bridgewater to 
 Bristol was concerned. It appeared that the company had 
 special contracts with certain grocers and ironmongers at 
 
 1 See also Palmer v. London, L. B,. C. P. 194; 40 L. J. C. P. 133; 
 Brighton, & South Coast Rail. Co., 6 24 L. T. u. s. 135. 
 
402 THE LAW OV CARRIERS. 
 
 Bridgewater, under which they agreed to carry all their iron- 
 mongery and grocery goods at a uniform rate of 6s. per ton, 
 including delivery. But this was held an undue preference in 
 relation to the general rate of charge for the carriage of goods 
 from Bristol to Bridgewater, and vice versd, which was cor- 
 rectly set out by the complainant, as it did not appear that 
 this diminished charge was justified by any special circum- 
 stances of advantage to the company, or to meet competition 
 for another railway or any other mode of carriage. 1 
 
 Sec. 351. Legitimate Competition -with another Railway 
 Company. — Legitimate Increase of Profits. — Had the railway 
 company entered into an agreement of the nature set out 
 above, viz. to carry all or certain individuals' goods at a rate 
 considerably lower than that which was their general charge 
 for the conveyance of goods, with a view to legitimate compe- 
 tition with another railway company which carried goods from 
 the same places and to the same places as the company making 
 the agreement, or could it have shown that the reduction in 
 charges so made did not in any way reduce the profits of the 
 company by reason of the fact of the increased traffic secured 
 compensating for the diminished rates on particular transac- 
 tions, the case would not have fallen within the statute, as it 
 was evidently not the object of the legislature to interfere with 
 a proper competition on the part of railway companies, which 
 can only tend, in the long run, to the public advantage ; nor 
 was it an object of the legislature to meddle with such reduc- 
 tions as were intended, legitimately, — that is, within the 
 scope of that particular branch of business, — to increase the 
 profits of the railway company, it being certain that no such 
 reductions, undertaken honestly with a view to that result, 
 could, in the end, be detrimental to the interests of those who 
 were the objects of the care of the legislature, — the public 
 generally. 
 
 SEC. 352. What will not be held an Unreasonable Preju- 
 dice. — In a case where the complainant and respondent were 
 
 1 Garton v. Bristol & Exeter Rail. Co., 6 C. B. n. s. 639 j 28 L. J. C. P. 
 306 ; 4 Jur. n. s. 1313. 
 
RESTRICTIONS UPON CARRIERS. 403 
 
 the same as in one of the cases alluded to above, it appeared 
 that, by their scale or tariff, the respondent railway company 
 divided the places through which their line passed into dis- 
 tricts, and charged at a reduced rate per ton for coals carried 
 a given distance from Peterborough or Ipswich respectively, 
 when consigned in full train-loads of 200 tons, or 35 trucks. 
 The advantage of this reduced rate was given to persons con- 
 signing coals from Peterborough to one of these districts in 
 full train-loads, though, on their arrival at Cambridge, the 
 company, for their own convenience, thought fit to break up the 
 train and carry about one third of it forward by the ordinary 
 goods trains, — the whole consignment, however, ultimately 
 finding its way into the district to which it was addressed by 
 the consignor. Under these circumstances it was held that 
 this was not giving any undue preference to the Peterborough 
 coal dealers, or imposing any undue prejudice on the Ipswich 
 dealers, although the latter were unable to avail themselves of 
 the lower rate of charge for coals consigned by them to the 
 same district, by reason of the insufficiency of the demand for 
 sea-borne coals at the places comprised therein. 1 
 
 SEC. 353. As to Agent's Receiving-houses. — Where a rail- 
 way company permitted a carrier (who also acted as superin- 
 tendent of their goods traffic) to hold himself out as agent for 
 the receipt of goods to be carried on their line, and his office 
 as the receiving-office of the company, the goods were received 
 by him at that place without requiring the senders to sign con- 
 ditions which the company required all other carriers who 
 brought goods to their stations to do. The question in the 
 case was, whether the carrier who thus received the goods was 
 agent of the company for receiving and forwarding on their 
 line, — whether persons delivering goods at his office, or re- 
 ceiving-house for that purpose, had the security of the com- 
 pany's, liability, or only that of Wall (the carrier). It was 
 held that Wall's office was, as to third persons, to all intents 
 and purposes, the office of the company, and that the effect of 
 the arrangement was to give Wall an advantage over the com- 
 
 1 Ransome v. Eastern Counties Rail. 29 L. J. C. P. 329; 8 W. R. 527; 
 Co., 8 C. B. u. s. 709 ; 7 Jur. n. s. 99 ; 2 L. T. n. s. 376. 
 
404 
 
 THE LAW OP CARRIERS. 
 
 plainants, as to the carriage of goods, which the law did not 
 warrant. 1 
 
 The principles which have guided the Court of Common 
 Pleas in the decision of cases in which injunctions were 
 applied for, in relation to railway companies' traffic in goods, 
 under the 17 & 18 Vict. c. 31, must now be somewhat obvious ; 
 and as the same general rules have guided them in other 
 applications made under this act with regard to the stational 
 arrangements, and the conveyance of passengers, these prin- 
 ciples will be further explicated by a consideration of some of 
 these cases. 2 
 
 SEC. 354. Stational Arrangements. — In the case of Barker 
 v. Midland Railway Company, 8 it was decided that an action 
 would not lie against a railway company for refusing to admit 
 a carrier of passengers and goods within the precincts of their 
 station, to which they admitted the public generally ; but it was 
 suggested that if there had been sufficient evidence of a dedi- 
 cation to the public, which there was not in this case, it would 
 have been different. The inference is, that if an action would 
 not lie, an injunction would not be granted. 
 
 SEC. 355. Arrangement ■with other Carrier of Passengers, 
 Undue Preference. — Where, however, a railway company made 
 arrangements at one of their stations with A., the proprietor 
 of an omnibus running between their station and K., to provide 
 omnibus accommodation for all passengers by any of their 
 trains to and from K., and allowed A. the exclusive privilege 
 of driving his vehicle into the station-yard for the purpose of 
 taking up and setting down passengers at the door of the 
 booking-office, it was held that, in the absence of special cir- 
 cumstances showing it to be reasonable, the granting of such 
 exclusive privilege to one proprietor and refusing to grant the 
 like facilities to another, who also brought passengers from K., 
 as well as from other "places beyond, was a breach of the pro- 
 
 1 Baxendale, In re, and Bristol & tish Central Rail. Co. v. Ferguson & 
 Exeter Rail. Co., 11 C. B. n. s. 787. Co., 27 Feb. 1864, 2 Macph. 781; 
 
 2 Two Scotch cases may be consulted Wannan v. Scottish Central Rail. Co., 
 with reference to the construction to 19 July, 1864, 2 Macph. 1373. 
 
 be placed upon this statute. Scot- 8 18 C. B. 46 ; 25 L. J. 184 C. P. 
 
RESTRICTIONS UPON CARRIERS. 405 
 
 hibition against the granting of undue and unreasonable prefer- 
 ences. 1 Had the carrier of passengers paid to the railway 
 company a certain sum of money for the exclusive right of 
 occupying the station-yard with his vehicle, and had it been 
 proved that his supply of vehicles was sufficient for the wants 
 of the public, it seems that an injunction would not have been 
 granted. 2 
 
 SEC. 356. A Legitimate Arrangement. — A Proof of Sub- 
 stantial Inconvenience necessary to support Injunction. — So, 
 where a railway company granted exclusive permission to a 
 limited number of fly proprietors to ply for hire within their 
 station, the court refused to grant an injunction against the 
 company under this act, at the instance of a fly proprietor who 
 was excluded from participation in this advantage, although 
 it was sworn by the complainant, and by several other fly pro- 
 prietors who were likewise excluded, that occasional delay and 
 inconvenience to the public resulted from the course pursued. 3 
 But the only ground upon which, under such circumstances, 
 an injunction will be granted, is a proof of undoubted and sub- 
 stantial inconvenience or injury arising to the public from 
 such an arrangement, 4 the presumption, founded upon experi- 
 ence, being that, as the company is empowered to take pre- 
 cautions for the ordering and good management of its affairs, 
 such arrangements are, when bond fide, for the advantage of 
 the public, and do not conduce to the prejudice of any indi- 
 viduals. 
 
 Sec. 357. Time of Closing Goods station. — A railway com- 
 pany required other carriers to bring their goods to the railway 
 station at or before 6.30 p. it., while they removed goods at 
 their station at a later time, when those goods were collected 
 by themselves. An injunction was asked for to restrain this 
 practice, which evidently fell within the prohibitory rule laid 
 
 1 Marriott, la re, 1 0. B. n. s. 499 ; 8 Painter, Ex parte, 2 C. B. s. s. 
 3 Jur. ». s. 493 ; 26 L. J. 0. P. 154. 702. 
 
 2 Beadell v. Eastern Counties Rail. 4 See, also, per Cockbtoit, C. J., 
 Co., 26 L. J. C. P. 250; 2 C. B. in Barrett v. Great Northern & Mid- 
 n. s. 509. land Rail. Co., 1 C. B. s, s. 423 ; 28 
 
 L. J. 306 C. P. 
 
406 
 
 THE LAW OP CARRIERS. 
 
 down in Garton v. Bristol and Exeter Railway, 1 and was 
 granted. 2 
 
 Sec. 358. Application of Act as to Facilities for Storing 
 Coals. — Arrangements. — Complaint. — Court will look to True 
 Character and Effect of Arrangements. — In a recent case it 
 appeared that a railway company, having land adjoining one of 
 their stations, let the whole of it to Perkins, a coal merchant, 
 for the purpose of storing coals brought by their line, and that 
 Perkins did not require, or actually use, the whole of the land 
 for this purpose. West, another coal merchant, applied to the 
 company to provide him, on similar terms, with land for stor- 
 ing coals, or to let him the part of the land not actually used by 
 Perkins. The company refused to do so, and West applied to 
 the court, under the Railway and Canal Traffic Act, 1854, § 3, 
 for an order compelling the company to desist from allowing 
 Perkins to store coals on the land, or to give similar facilities 
 to him. As, on the hearing, the court was equally divided, 
 Bovill, C. J., and Keating, J., holding an opinion that the 
 rule which had been obtained in favor of West should be made 
 absolute, while Montague Smith and Brett, JJ., held that it 
 should be discharged, it may be well to quote some portions 
 from the judgments which were delivered. Bovill, C. J., in 
 delivering the judgment of himself and Keating, said : "Prom 
 the nature of the inland coal trade, the wharf or depot accom- 
 modation is almost essential to its being carried on profitably 
 to the merchant. It also promotes the traffic of carrying coals 
 upon the railways, and the practice of the companies provid- 
 ing such accommodation is very general upon most of the rail- 
 ways. . . . The refusal to allow the complainants any wharf 
 accommodation at Lubenham, which, however, is, for all com- 
 mercial purposes (as it appears to have been considered by 
 both parties), virtually preventing the coal being sent by the 
 complainants to that station. . . . They complain that, by the 
 arrangements in question, an undue preference and advantage 
 
 1 6 C. B. u. s. 639 ; 28 L. J. C. P. jr. s. 758. See also Palmer v. Loudon, 
 306. Brighton, & South Coast Rail. Co., 
 
 2 Baxendale v. London & South- In re, 6 L. R. C. P. 194 ; 40 L. J. 
 Western Railway Co., In re, 12 C. B. C. P. 133 ; 24 L. J. n. s. 135. 
 
EBSTEICTIONS UPON CAEEIEES. 407 
 
 is given by the company to Mr. Perkins, and that they are 
 subjected to undue prejudice and disadvantage, and there can 
 be no doubt that the effect of what has been done by the com- 
 pany is to exclude the complainants from any share of the 
 facilities for the coal traffic which exists at the station, and 
 that it does practically exclude them from sending coal to 
 Lubenham station for the purposes of their trade, and thus 
 creates a monopoly of the trade in favor of Mr. Perkins, and 
 to the prejudice, not only of the complainants, but of the pub- 
 lic. ... It seems to us that the space of ground used for the 
 deposit of coals at Lubenham station must be considered a 
 part of the railway within the meaning of the Eailway Traffic 
 Act, and that the wharf accommodation to coal dealers is not 
 only a usual and ordinary and reasonable accommodation for 
 the coal traffic coming to the railway, but that it is in fact so 
 necessary, that without it the trade in coal and the traffic of 
 coal on the railway cannot practically and commercially be 
 carried on. . . . In most of the decided cases, the question 
 has arisen upon a difference in the amounts charged for car- 
 riage to particular persons ; but the court has always consid- 
 ered that the Act of 1854 prohibited any difference being made 
 in the accommodation, also, that was afforded to different 
 persons ; and the court will always look at the true character 
 and effect of the arrangements which are complained of. I 
 cannot bring my mind to doubt that what was done in this 
 case was distinctly what the legislature intended to prevent. 
 It gives a direct advantage to Mr. Perkins at the expense of 
 the complainants, and is a direct prejudice to the complainants 
 to the benefit of Mr. Perkins. There is no sufficient reason 
 shown for giving this preference to Mr. Perkins ; and there 
 are no circumstances, not even the benefit of the public, to 
 excuse or justify it. Indeed, the public, if such monopolies 
 could be created by railway companies at this and other sta- 
 tions, would suffer most materially ; and it seems to me that 
 there is nothing to make the arrangement in question other- 
 wise than undue and unreasonable within the meaning of the 
 statute." 
 
 Sec. 359. As to the Court's Jurisdiction under the Act. — 
 
408 THE LAW OF CARRIERS. 
 
 The Complaint must relate to the Receiving, Forwarding, or De- 
 livering df Goods. — Montague Smith, J., in giving judgment 
 for himself and Brett, J., said : " The question arises whether 
 the court has jurisdiction, under the Railway and Canal Traffic 
 Act, to carry out this object, and it seems to us it has not. It 
 strikes one at the outset that what the applicants want from 
 the company has nothing whatever to do with the conveyance 
 and transport of coal, or with any facilities or accommodation 
 relating to conveyance and transport. They really want the 
 company to provide them with a wharf or store, where they 
 may sell their coal when and as they please. . . . [He then 
 referred to 17 & 18 Vict. c. 31.] These being the enactments 
 of the statute, it seems to us that this court has no jurisdic- 
 tion under it to deal with the complaint in question. That 
 complaint does not relate to the conveyance of the coal, or to 
 the receiving, forwarding, or delivering of it. The coal is 
 received at the place whence it is consigned, and it is for- 
 warded to Lubenham, and, when it is there, handed over to 
 such a consignee as Mr. Perkins is, in order that he may stack 
 it and keep it, and sell it at his pleasure to a purchaser. We 
 think it is delivered within the meaning of the statute. We 
 think that the complaint relates to matters wholly distinct 
 from the receiving, forwarding, and delivering of the coal. It 
 relates to a matter foreign to all these things, and, arising 
 after all that concerns the conveyance and delivery of the coal, 
 is absolutely and entirely at an end. It is said that the com- 
 pany, by letting their wharf to Mr. Perkins for the above pur- 
 poses, give him an advantage in the sale of his coals over the 
 applicants. But this is not an advantage in the conveyance 
 or transport of the coal ; and if it is not one of the advantages 
 within the act, the fact that it is an advantage to him and a 
 disadvantage to others becomes immaterial, and cannot give the 
 court jurisdiction. It seems to us that if we were to extend 
 our jurisdiction to things beyond those which relate to the 
 conveyance of traffic, and the matters incidental to its trans- 
 port, we should exceed the authority conferred on us by the 
 act, and might then be asked to extend our interference to 
 various matters not at all contemplated by it, such as the 
 
RESTRICTIONS UPON CARRIERS. 409 
 
 arrangements respecting refreshment-rooms, book-stalls, and 
 other like matters." 1 
 
 We should have imagined that such a difference of opinion 
 need not necessarily exist in this case, but such are the facts 
 of the decision. 
 
 Sec. 360. Question of Method. — A question of method 
 arises in this place, and that is, whether the restrictions which 
 have been imposed upon railway companies in relation to the 
 conveyance of passengers, their fares, and the trains by which 
 they are conveyed, should be treated of in this chapter, or 
 would find a more fitting place, having regard to logical 
 sequence, in that portion of this work which is devoted to the 
 consideration of the law in relation to passenger traffic in all 
 its bearings. We would, however, deal, at least, with those 
 cases which fall directly under the above statute, as the whole 
 subject of injunction is more apt to be thoroughly understood 
 if treated of in its entirety ; and when we come to that part of 
 our subject where the questions arising in connection with this 
 subject have an equally good right to be alluded to, we would 
 refer the reader to this part of our work. Such a course will, 
 it seems to us, fulfil the logical requirements of the subject, 
 and will avoid a repetition which would be unnecessary in any 
 other point of view. 
 
 Sec. 361. Pares, Passengers, and Trains. — The Convenience 
 of the Public. — Throughout this chapter we have endeavored 
 to make it clearly understood that the restrictions here alluded 
 to are imposed upon railway companies for the benefit of the 
 public. It was the prejudice which arose to the public from the 
 preference of certain individuals that indicated the necessity 
 of some such measure as that which was introduced, and, in 
 the various decisions which have been made under this statute, 
 this principle has been kept in view. Thus the court will not 
 interfere with a railway company's practice in reference to the 
 running of through trains on a continuous line of railway, 
 
 1 West ». London & North- West- case, Napier v. Glasgow & South- 
 ern Rail. Co., 5 L. R. C. P. 622; 29 Western Rail. Co., 25 Nov. 1865; 4 
 L. J. C. P. 282; 23 L. T. n. s. 371 ; Macph. 87 ; 38 Jur. 55. 
 18 W. R. 1028. See, also, a Scotch 
 
410 THE LAW OP CARRIERS. 
 
 unless it be convinced that the demand for such through train 
 is reasonable, and also that such through train is necessary 
 to the convenience of the public. Where there was such an 
 application at the instance of an individual, the court refused 
 to interfere, on the ground that there was a continuous line by 
 which through tickets might be obtained, though by a some- 
 what longer route, that no additional cost or serious loss of 
 time had been thereby incurred, and no substantial inconven- 
 ience thereby occasioned to the public, and that no complaint 
 had been made of the inadequacy of the existing accommoda- 
 tion. 1 
 
 Sec. 362. The Granting of Season Tickets. — Where a rail- 
 way company granted season tickets to passengers upon their 
 line between Harwich and London, upon certain terms, and an 
 injunction was applied for to compel the company to grant 
 season tickets to passengers between Colchester and London, 
 and there was a suggestion that it was an unreasonable pref- 
 erence upon the part of the railway company to grant season 
 tickets between the former places at a lower rate (the distance 
 being considerably greater) than between the latter places, 
 the court refused to interfere, on the ground that these facts 
 did not constitute a case of undue preference under the 
 act. 2 
 
 Sec. 363. To induce Interference -with Branch Lines, Exist- 
 ing Arrangements must be shown to be Inconvenient to Public. 
 — Reasonableness, how to be judged of. — Shelter at Junction. 
 — In the case of the Caterham Railway Company 3 one or two 
 important points were raised, and one of the decisions bore on 
 the subject under consideration. That decision was to the 
 effect that, in order to induce the court to interfere on behalf 
 of the proprietors of a branch line with a view to compelling 
 the stoppage of a greater number of the trains running on the 
 main line at the junction, or with a view to altering the times 
 of the stoppage of trains, it must be shown that the existing 
 
 1 Barret, In re, 1 C. B. n. s. 423 ; Hozier v. Caledonian Rail. Co., Scotch 
 
 26 L. J. C. P. 83. Session Cases, vol. xvii. n. s. p. 302. 
 
 8 Jones v. Eastern Counties Rail. » 1 C. B. n. s. 410 ; 26 L. J. C. P. 
 
 Co., 3 C. B. n. s. 718. See, also, 161. 
 
RESTRICTIONS UPON CARRIERS. 411 
 
 arrangement is not of such a nature as to meet the require- 
 ments of the public. It was also held that the reasonableness 
 of the accommodation with regard to travelling on one branch 
 line must be looked at in relation to the accommodation 
 afforded to the public on other branch lines. Thus the fact 
 that the company working the main line refuses to grant third- 
 class return tickets to the branch line, is not a good ground 
 for complaint, unless it can be shown that it does grant such 
 tickets to another branch line similarly situated to that con- 
 cerning which the complaint is made, — in which case the 
 court would grant an injunction. On the other hand, if there 
 is no shelter provided at the junction for the passengers on 
 the branch line who are waiting the arrival of' trains, this will 
 be held to be an unreasonable prejudice to these passengers, 
 upon the ground that the public is entitled in this respect to 
 reasonable accommodation. 
 
 Sec. 364. Unequal Charges. — With reference to the first 
 point raised in this case, Cresswell, J., said : " The first ground 
 of complaint is, that the companies against whom the appli- 
 cation is directed make unequal charges to persons travelling 
 along the lines to the Caterham branch. It does not, however, 
 appear that there is any inequality as compared with the rates 
 charged on another line. The words of the 2d section are, 
 that ' no such company shall make or give any undue or un- 
 reasonable preference or advantage to or in favor of any par- 
 ticular person or company, or any particular description of 
 traffic in any respect whatsoever, nor shall any such company 
 subject any particular person or company or any particular 
 description of traffic to any undue or unreasonable prejudice 
 or disadvantage in any respect whatsoever.' I apprehend that 
 it cannot be said that because persons may travel between 
 London and Epsom at a less rate than they can between Lon- 
 don and Caterham, any undue or unreasonable preference or 
 advantage is given, or any undue or unreasonable prejudice 
 or disadvantage imposed. All persons, it appears, who come 
 from London to Caterham, are charged alike." * Consequently 
 
 1 1 C. B. n. s. 419. 
 
412 THE LAW OP CARRIERS. 
 
 only where there is an inequality of charge for travelling over 
 the same line or portion of a line will the court interfere. 
 
 Sec. 365. Practice on Remedy. — Some statement of the 
 practice on remedy may be necessary in this place. A rule 
 calling upon a railway company to show cause why they should 
 not act in compliance with the Railway Traffic Act is too 
 vague. 1 It ought to be remembered, in connection with this 
 subject, that the complainant ought, before coming to the 
 court, to represent his grievance to the company, and only 
 make application for injunction in case of their refusal to grant 
 him the redress he seeks. 2 
 
 Sec. 366. Affidavit. — In reference to the affidavit, it ought 
 to set out, without vagueness, a public as well as a private in- 
 convenience, as the actual or possible result of the grievance ; 3 
 and although in some cases the court may be inclined to grant 
 an injunction where a public inconvenience cannot be shown 
 to be the direct and necessary result of the grievance com- 
 plained of, 4 it is always better, if such grievance can be shown 
 in any way, directly or indirectly, to arise from the conduct of 
 the company, to set it forth. The affidavit of complaint must 
 disclose a grievance, which is strictly in accordance with the 
 facts, and a mistake or misdescription of the ground upon 
 which relief is sought, or of the circumstances complained of, 
 will, even where a substantial grievance of an analogous nature 
 is disclosed on the argument, be fatal. 5 Where, however, a 
 real ground of grievance is stated, the court will probably 
 mould the rule so as to give the redress really required, even 
 
 1 Marriott, In re, v. London & 4 Nicholson v. Great Western Rail. 
 Southwestern Rail. Co., 26 L. J. C. P. Co., 28 L. J. C. P. 89 ; Btles, J., in 
 154 ; 3 Jur. n. s. 154. Garton v. Bristol & Exeter Rail. Co., 
 
 2 Cooper v. London & South-West- 28 L. J. C. P. 310. 
 
 em Rail. Co., 4 Jur. s. s. 762 C. P. 6 Cooper v. London & South-West- 
 8 Re Marriott v. London & South- ern Rail. Co., 27 L. J. C. P. 324 ; 
 WesternRail. Co., 26 L. J. C. P. 155 ; Ransome v. Eastern Counties Rail. 
 Caterham Rail. Co., In re, 1 C. B. Co., 27 L. J. C. P. 166 ; cf. Crickmar 
 n. s. 410 ; 26 L. J. C. P. 161 ; Ex v. Eastern Counties Rail. Co., 26 L. T. 
 parte Painter, 2 C. B. N. s. 705 ; Ran- Rep. 220 ; Baxendale v. Great West- 
 some v. Eastern Counties Rail. Co., 27 ern Rail. Co., 28 L. J. C. P. 72. 
 L. J. C. P. 166. 
 
EESTRICTIONS UPON CARRIERS. 413 
 
 while they refuse to grant the whole amount of relief which is 
 prayed for. 
 
 It has been decided that, where a rule to show cause has 
 been obtained upon affidavits, the complainant will not be 
 allowed to file additional affidavits to strengthen the rule, even 
 although the other side have not filed affidavits in reply, or 
 done anything except give notice of their opposition to the 
 rule. But if the court thinks fit, it may allow the complainant 
 to abandon the rule and move a new one, and will suspend the 
 costs of the rule so abandoned until after the new one has 
 been disposed of. 1 Where the affidavits disclose circumstances 
 of a special nature, which are essentially matters of calcula- 
 tion, and such as cannot be conveniently dealt with by the 
 court, it will refer the case to the master, who will take 
 the evidence and report thereon to the court. On the report 
 the court will act with due regard to the conflicting rights and 
 interests of the public and the company. 2 The court will not, 
 when a rule has been disposed of, allow it to be reopened on 
 affidavits of new facts, although they have the power to do so 
 if they think fit. 3 
 
 Sec. 367. Attachments. — The court refused to grant an 
 attachment against a railway company for disobedience to a 
 writ enjoining them to desist from giving an undue preference 
 in respect of the carriage of coals from a certain place, P., or 
 other places to or towards certain other places mentioned in 
 the order, the affidavits on the part of the company showing 
 a bond fide endeavor to conform to the order of the court, 
 although it appeared that the reformed scale of charges still 
 operated, in some other respects, injuriously to the interests 
 of the complainants, and advantageously to the parties. 4 
 
 Sec. 368.' Costs. — Where costs are not asked for, they will 
 not be given, 5 although in one case, where an application was 
 
 1 Ransome v. Eastern Counties Rail. 4 Ransome v. Eastern Counties Rail. 
 
 Co., 2 L. T. n. s. 237. Co., 4 C. B. n. s. 159 ; 4 Jur. v. s. 
 
 * Nicholson v. Great "Western Rail. 859 ; and see De la Rue v. Fortescue, 
 
 Co., 2 L. T. w. s. 234 ; 28 L. J. 2 H. & N. 324 ; 26 L. J. Exch. 339. 
 
 c - p - 89 - 6 Marriott, In re, 3 Jur. s. s. 493 ; 
 
 3 Baxendale v. Great Western Rail. 26 L. J C P. 154 
 Co., 32 L. T. 257 ; 28 L. J.. C. P. 85 n. 
 
414 THE LAW OP CAEEIEES. 
 
 made under 17 & 18 Vict. c. 31, and the rule was moved with- 
 out mention of costs, it was made absolute with costs. 1 When 
 the rule is moved with costs, it will either be made absolute 
 with costs 2 or discharged with costs. 3 Where a complainant 
 asked for a rule more than he was entitled to, and the com- 
 pany was proved to have been partially in the wrong, the court 
 refused to allow costs to either. 4 Where a railway company 
 has so acted as to render it necessary and proper for any per- 
 son to come to the court for redress under the Railway and 
 Canal Traffic Act, the court will, as a general rule, make the 
 rule absolute with costs. 5 Where a judge at chambers, in the 
 exercise of his discretion, had refused to allow costs upon 
 the unsuccessful application for an injunction under this act, 
 the court refused to review his decision. 6 
 
 Sec. 369. Restrictions Independent of 17 & 18 Vict. o. 31, 
 § 2. — But, besides those restrictions which are placed upon 
 the trade of a carrier by the statute, the provisions of which 
 we have just considered, other restrictions have been placed 
 on the free exercise of the trade of carriers, who carry by rail, 
 either by the special acts under which they were incorporated 
 or by the courts of law, with a regard to the rights of the 
 public and the necessary conditions of a healthy commerce. 
 Many cases which do not fall under the Railway and Canal 
 Traffic Act, 1854, have come before our courts, and from the 
 decisions in these it may be gathered that the charges for the 
 carriage of like goods under similar circumstances must be 
 the same ; that where there is additional risk incurred by the 
 carrier he is entitled to charge an additional premium ; that 
 a mere difference of packing, which has been effected with a 
 view to the convenience of the sender, will not justify an in- 
 crease of charge ; but that a difference in bulk, quality, or 
 
 1 Ransomeu, Eastern Counties Rail. 6 Baxendale, In re, v. London & 
 Co., 26 L. J C. P. 154. South-Western Rail. Co., 12 C. B. 
 
 2 Baxendale v. Great Western Rail. n. s. 758. 
 
 Co., 28 L. J. C. P. 69. * Ilfracombe Public Conveyance Co. 
 
 8 Nicholson v. Great Western Rail. v. London & South-Western Rail. Co., 
 Co., 28 L. J. C. P. 86. 4 L. R. C. P. 151. 
 
 * Oxlade v. North-Eastern Rail. Co., 
 1 C. B. n. s. 454. 
 
RESTRICTIONS UPON CARRIERS. 415 
 
 weight may be a ground for difference in the price of the car- 
 riage of goods. It will, however, be better to consider these 
 principles in connection with the cases in the course of which 
 they have been enunciated, both on the ground of brevity and 
 clearness. 
 
 Sec. 370. Rail-way Company's Power to impose Tolls and 
 Charges. — We have seen that it is usual to empower a railway 
 company to impose certain tolls and charges for the carriage 
 of goods oh their line, and a case came before the court in 
 which the extent of the applicability of such a power was dis- 
 cussed. There a company had under its original act this 
 power conferred upon it. But subsequently it obtained certain 
 other acts, and, among them, one which empowered the com- 
 pany to make a junction and branch railways, incorporating 
 the Lands' and Railways' Clauses Acts, and including a num- 
 ber of enactments, in which the words "the railway" were 
 used in some places so as to be applicable only to the junction 
 and branch lines, but in others, which had the effect of. intro- 
 ducing a new system of tolls and charges, implying that " the 
 railway " meant the whole system belonging to the company. 
 This was a question of construction, and it was held that the 
 term " the railway " must, in the light of all the statutes of 
 the company, and under all the circumstances, mean the whole 
 system of railway belonging to the company, and that it was 
 over it that the tolls and charges were intended to extend 
 and not over the junction and branch line only. 1 
 
 Sec. 371. "Manufactured Goods," what they are. Another 
 
 case, which decided a principle which may be regarded as pre- 
 liminary to those involved in the questions of equality of 
 charges for similar articles, may be taken cognizance of in 
 this place. There a railway company was entitled to charge 
 a certain rate "for all cotton and other wools, drugs, and 
 manufactured goods ;" and it was held that this meant not all 
 goods "upon which human skill was employed, but those 
 articles made in what are in popular language called manu- 
 factories." 2 
 
 1 Bristol & Exeter Bail. Co. v. Gar- 2 Parker v. Western Bail Co 6 
 ton, 4 H. & N. 33; 28 L. J. Exch. El. & BL 77; 25 L. 3. Q. B. 209.' 
 169 Exch. Ch. ^ 
 
416 THE LAW OP CARRIERS. 
 
 Sec. 372. Construction of Special Acta. — Before consid- 
 ering the general principles which have regulated the framing 
 of the special acts of railway companies, in so far as these acts 
 empower the companies to exact tolls and charges according 
 to certain definite principles, it is well to remember that each 
 act must be read with due reference to its special language 
 and application, but that at the same time a certain unity of 
 principle is to be found in all these acts, and in all the cases 
 which have come before courts of law in which the construc- 
 tion of these acts was in question. The cases which have 
 been examined will illustrate this statement. 
 
 Sec. 373. inequality of Charge. — The Grand Junction 
 Railway Company became carriers on the London and Bir- 
 mingham lines, and published a list of charges for the car- 
 riage of goods from Manchester to London. They were by 
 their special acts empowered to carry on a fixed scale of rea- 
 sonable and equal charges. Among the items in the published 
 list, the carriage of " Manchester packs," from the former of 
 these two places to the latter, was charged 3s. 3c?. per cwt., or 
 65s. per ton. At the foot of this list there was a notice that 
 goods were brought to the station at Camden Town, without 
 extra charge, and that there was no charge for delivery in 
 London. The company made an agreement with Messrs. Chap- 
 lin and Home, that the latter should carry from the station, 
 and deliver in London all such goods carried by the railway, 
 and for so doing should receive 10s. per ton out of the entire 
 charge of 65s. per ton. At the same time, the company 
 charged 65s. per ton, even when the goods were received by 
 the persons to whom they were sent, or by their agents at 
 Camden Town ; and the court held this to be both an unrea- 
 sonable and unequal charge upon the part of the company. 1 
 
 Sec. 374. Packed Parcels. — Another question arose in the 
 course of this case, and that was whether, on a scale which 
 fixes a lower rate of charge for goods above a specified weight, 
 and a higher charge under that weight, can a parcel above the 
 
 1 Pickford v. Grand Junction Rail, ern Rail. Co., 17 M. & G. 253 ; 7 
 Co., 10 M. &. W. 399 ; 3 Rail. Cas. Scott, N. R. 855. 
 193. See, also, Parker v. Great West- 
 
EESTRICTIONS UPON CABETEES. 417 
 
 specified weight consigned to one person, but in reality com- 
 posed of different packages for different consignees, each of 
 which parcels is under the specified weight, be charged on the 
 higher scale, either as an entire package, or as if each of such 
 parcels had been sent separately ? In deciding in the nega- 
 tive, Paeke, B., said : " The charge is no doubt to be varied 
 according to the trouble, expense, and responsibility attending 
 the receipt, carriage, and delivery of different articles ; and 
 for small parcels more ought to be paid than a proportionate 
 part, according to weight, of the price of larger parcels of the 
 same commodity, by reason of the greater trouble in receiving, 
 despatching, and delivering them, and their exposure to much 
 greater risk of abstraction or loss. But if all the small par- 
 cels are united in one large package, and delivered to a carrier 
 in that package consigned to one person, the trouble and 
 responsibility are apparently reduced precisely to the same 
 degree as if all the articles contained in the package were the 
 property of the same owner, and intended to be delivered to 
 him. There would seem, therefore, to be no right to charge 
 for such package of distinct parcels, belonging to different 
 owners, more than if they belonged to the same." 1 
 
 Sec. 375. How Equality of Charge is to be estimated. — 
 The question, then, as to whether the charges are equal and 
 alike in two cases must be decided by a consideration of the 
 circumstances of the case ; for if any circumstance renders the 
 carriage of the goods of one person a greater trouble, a greater 
 expense, or a greater responsibility 2 to the carrier than the 
 carriage of the similar goods of another, he is entitled to 
 charge more to the former than the latter, and that without 
 inequality, upon the Spartan principle of calling that equal 
 which is just, and not calling that just which is equal. 
 
 Sec. 376. Extortion under Company's Special Act. — The 
 London and North-Western Railway Company was empow- 
 ered to take rates and tolls from all persons alike under the 
 same and similar circumstances. Their ordinary price for 
 
 1 10 M. & W. 422. C. P. 137 ; Branly v. South-Bastern 
 
 2 See Baxendale v. Eastern Counties Hail. Co., 12 C. B. n. s. 74 ; 31 L. J. 
 Rail. Co., 4 C. B. n. s. 63 ; 27 L. J. C. P. 286. 
 
 27 
 
418 THE LAW OP CARRIERS. 
 
 carrying a parcel from L. to B. was id. per pound. They 
 refused to carry the plaintiff's parcel from L. to B. unless he 
 paid Id per pound ; and, the plaintiff having done so, it was 
 held that the charge was an extortion under the company's 
 special act, and that the plaintiff was entitled to recover back 
 the excess of his payment over the ordinary rate. 1 
 
 SEC. 377. Reduction in Favor of some Carriers for Load- 
 ing, &c. — A railway company (the Great Western) was 
 authorized by its act to make rates and tolls for goods and 
 passengers conveyed by others than the company along the 
 railway which should be reasonable and equal to all persons. 
 And by a subsequent act the charges for the carriage of any 
 passengers, goods, &c, to be conveyed by the company, or for 
 the use of any power supplied to them, should be, at all times, 
 charged equally to all persons, and after the same rate per 
 mile, or per ton per mile, in respect of all passengers, and of 
 all goods of the like description to be conveyed by a like car- 
 riage on the same portion of the line, and no reduction or 
 advance in any charge for conveyance, or for the use of any 
 locomotive power to be supplied by the company, should be 
 made either directly or indirectly in favor of or against any 
 particular company or persons travelling upon, or using the 
 same portions of the railway. Upon a case stated for the 
 opinion of the court, it appeared that the company had always 
 charged the public for the carriage of goods at the rates speci- 
 fied in certain printed bills, and a scale-book annexed to the 
 case, and that for such charge they performed the loading, 
 unloading, and reloading of the goods, as explained in the 
 case, and also the weighing, but that by a general arrange- 
 ment with carriers the latter had performed all these duties, 
 and, in addition, had made out what they called ticking-off 
 notes and carriers' declaration tickets, and had been allowed 
 by the company a deduction of 10 per cent from the charges 
 made to the public at large, — the performance of these duties 
 being stated in the case to be a reasonable equivalent for the 
 allowance of 10 per cent. The question was whether the com- 
 pany was justified in withholding the allowance from the 
 
 1 Crouch v. London & North-Western Rail. Co., 2 C. & K. 789. 
 
RESTRICTIONS UPON CARRIERS. 419 
 
 plaintiff, a carrier who was willing to discharge, and in fact 
 did discharge, the duties, for the performance of which such 
 allowance was made. And it was decided that they were not, 
 and that the proof that the company were ready and willing 
 to perform all the things which formed the consideration for 
 the allowance was immaterial. 1 
 
 Sec. 378. Aggregate Weight, and Separate Parcels charged 
 for. — Disclosure of Name of Consignor and Consignee. — In 
 the same case it appeared that if any of the public (not being 
 a carrier), as a consignor, brought several packages of goods 
 addressed to different consignees and paid the charge, or if 
 several of the public brought several packages addressed to 
 one consignee (not being a carrier), who paid the carriage, 
 the company had been in the habit of charging upon the 
 aggregate weight only. If, on the other hand, a carrier, under 
 the same circumstances, acted as a consignor or consignee of 
 goods, the company had been in the habit of charging sepa- 
 rately for each package. Prom the principles already enun- 
 ciated, the decision on this point was " that the company are 
 bound to treat the plaintiff as consignor and consignee for all 
 purposes, including the mode of charging in the aggregate, 
 and that they have no right to make a distinction in that 
 respect between him and any other individual member of the 
 public." The learned judge, Tindal, C. J., went on to re- 
 mark : " Of the sum constituting this third head of claim it 
 appears that a small portion, 171. 5s. 5d., would not have been 
 discharged had he disclosed the names of the consignors and 
 consignees of the goods ; but we find nothing in the statute 
 requiring him to make such a disclosure, and the company 
 had no right to withhold from him, in consequence of his 
 refusal to make it, any allowance to which he would have 
 been otherwise entitled." 
 
 Sec. 379. Principles. — Each of the points raised in that 
 case was decided according to the principles which we have 
 so repeatedly alluded to : That even the indirect favor which 
 a railway company has it in its power to show to certain indi- 
 
 1 Parker v. Great Western Kail. Co., 7 Scott, N. R 835 ; 7 M & G 253 ■ 
 13 L. J. C. P. 105. ' 
 
420 THE LAW OP CARRIERS. 
 
 viduals of the public, or certain individuals of a class, has the 
 effect of directly prejudicing the public. It cannot be doubted 
 that had the company been allowed to persist in its refusal to 
 allow the plaintiff the reduction of KM. per cent on the charges 
 made to the public, and to grant that reduction to other car- 
 riers, the result would have in the first instance been preju- 
 dicial to the plaintiff, but it would indirectly have prejudiced 
 the undoubted rights of the public. Again, the fact that a 
 consignor is a common carrier is not a reason why he should 
 be charged more than a consignor who does not carry on that 
 trade. The existence of a class of persons who devote them- 
 selves to that particular kind of work is a decided advantage 
 to the public. To charge them more than is charged to indi- 
 viduals who are not carriers, would, of course, compel them 
 to carry on their trade at a disadvantage, or might compel 
 them to abandon it in favor of one in which the restrictions, 
 which it is in the power of a monopolist to impose, cannot 
 militate against their reasonable profits. Thus it would come 
 about that the public would be injured by this provision of the 
 company, that a useful trade would be abolished, and that the 
 company would, in all probability, become the collectors and 
 deliverers of goods to be forwarded by rail at a monopoly 
 charge, — hence the necessity of interference in the case just 
 alluded to ; and, in another, in which the company was em- 
 powered by its special act, and by the 8 & 9 Vict. c. 20, § 90 
 (The Railways Clauses Consolidation Act, 1845), which was 
 incorporated with its special act, to charge what sum it 
 thought fit for the carriage of parcels, and had the power of 
 changing and varying its tolls and charges, but that always 
 under the proviso that they were to be charged equally to all 
 persons, and to advantage none and prejudice none. In that 
 case the company charged more to a common carrier than 
 they did to the rest of the public, and it was held that such 
 overcharging upon the part of the company was not justified. 
 And, at the same time, it was very properly admitted that the 
 company might charge more for packed parcels than for an 
 ordinary package. 1 
 
 1 Croucli v. Great Northern Rail. Co., 9 Exch. 556; 7 Rail. Cas. 787; 23 
 L. J. Exch. 148. 
 
EESTRICTIONS UPON CAEEIEES. 421 
 
 380. All the Provisions of Special Act to be consid- 
 ered. — A class of cases, which, at first sight, resembles the 
 above, is to be distinguished from it. The case of Parker v. 
 The Great Western Railway Company x will illustrate the dis- 
 tinction. It was proved that the company had entered into 
 an agreement with agents to collect and deliver goods for 
 them. The agents charged the public a small sum for so 
 doing, and at the same time received an additional allowance 
 out of the receipts of the company. It appeared that by their 
 act the company, while it was bound to charge all persons 
 equally for conveyance, was, nevertheless, entitled to make 
 agreements as to the collection and delivery of merchandise. 
 At the same time there was a proviso that any one prejudiced 
 by any such arrangement upon the part of the company giving 
 special facilities to others might appeal to sessions against 
 such an arrangement. It also appeared that the plaintiff, a 
 carrier, who collected and delivered his own parcels, was 
 charged as highly as the rest of the public. Consequently the 
 effect of the arrangement above alluded to was to cause him 
 to carry at a , disadvantage, as, in reality, the goods sent by 
 him were charged more for than the goods which were sent by 
 the railway company's agent. As, however, the plaintiff had 
 not appealed to the sessions against the agreement between 
 the company and the agents, the agreement must be held to 
 be without prejudice to the interests of the plaintiff, and, con- 
 sequently, it did not render the charges of the company an 
 overcharge. The distinction between these two cases is very 
 obvious. 
 
 Sec. 381. Proviso for Collection and Delivery of Goods. — 
 Where a company had the ordinary powers to charge what 
 they -thought fit, to vary such charges, always under the pro- 
 viso that the charges were to be made equally to all persons, 
 they had, as in the last case referred to, a power to enter into 
 or make arrangements for the collection and delivery of goods. 
 By a subsequent act some modification was made in the pow- 
 ers of the company. By it they were enabled to demand for. 
 the carriage of small parcels, i. e. parcels not exceeding 500 
 
 1 6 El. & Bl. 77; 2 Jur. u. s. 325 ; 25 L. J. Q. B. 209. 
 
422 THE LAW OP CARRIERS. 
 
 lbs., weight each, any sum which they thought fit. They had 
 been in the habit of allowing a rebate in their charge for the 
 conveyance of goods along their line when the goods -were 
 brought to or received at their stations. They, with a view 
 to changing their practice in this respect, issued a notice, that 
 for parcels under 500 lbs. weight, they would no longer make 
 the usual allowance, and they then charged the through rate, 
 as if goods had been collected and delivered by themselves. 
 It was held that the company was not entitled to charge par- 
 ties who brought their goods to, and received them at, the 
 different stations the same rate that was charged to others not 
 so bringing and receiving their goods, and that the plaintiff 
 was entitled to recover back from the company the amount of 
 the rebate in an action for money had and received. 1 This 
 decision was affirmed on appeal. 2 
 
 Sec. 382. Change of Practice. — There is nothing unreason- 
 able in a company changing its practice, in so far as, instead 
 of carrying bulky commodities at certain rates per ton, giving 
 notice that in the future it will only carry such articles on cer- 
 tain terms other than those, viz. at a certain minimum rate 
 per truck (capable of carrying three tons), whether filled or 
 not, the rate per ton being far less than the ordinary rate. 
 And where a case of this character came before the court, and 
 it was proved that although the plaintiff objected to the terms, 
 yet without any departure of the company therefrom he con- 
 tinued to send such commodities, sometimes in quantities less 
 than three tons, the court held that he was not entitled to be 
 charged, as he claimed, at the minimum rate per ton, and was 
 bound to pay at the rate per truck. The court also decided 
 that there was nothing unreasonable in such a rate of charge, 
 and that even if there were, the proper remedy was under 17 
 and 18 Vict. c. 31. 3 
 
 Sec. 383. Strictness of Construction of Special Acts. — 
 Some strictness is to be used in the construction to be placed 
 
 1 Baxendale v. Great Western Hail. 197 ; 10 Jur. n. s. 496 ; 12 W. K. 
 Co., 14 C. B. n. s. 1 ; 32 L. J. C. P. 602 ; 9 L. T. n. s. 814 Exch. Ch. 
 225 ; 9 Jur. n. s. 1174; 8 L. J. N. s. 8 GreatWestemRail.Co.u.Toorner, 
 833. 11 W. R. 464 Q. B. 
 
 2 16 C. B.n.s. 137; 33L.J.C.P. 
 
RESTRICTIONS UPON CARRIERS. 423 
 
 upon the special Acts of Parliament under which railway 
 companies operate. And, as we hare seen, the rule for con- 
 struing such acts is to regard them unfavorably to the parties 
 procuring them, and favorably — after a comprehensive view 
 of their whole bearings — to the public; for it must be remem- 
 bered that these acts are .passed not with the direct view 
 of aggrandizing a company, but of benefiting the community. 
 Thus, where a railway company were required by their special 
 act to carry as common carriers for hire, and to afford to all 
 persons conveying or sending goods upon their railway every 
 reasonable convenience and facility for loading and unloading 
 goods, and the act also authorized the company to demand a 
 toll not exceeding 3d. per ton per mile, it was held that the 
 company were not entitled to charge an additional sum for 
 services performed, accommodation afforded, and expense and 
 risk incurred in and about the receiving, loading, unloading, 
 and delivering (terminal charges) the goods. 1 
 
 Sec. 384. Terminal Charges in relation to Special Act. — 
 The services in that case were the unloading of 100 sacks of 
 flour from the carts in which the plaintiff conveyed the flour 
 to the defendants' station, wheeling it to the platform, and 
 there reloading it upon the defendants' trucks. And it was 
 thought by the court that the defendants had as much right 
 to charge for the expense of making the railway as for the 
 performance of these services. The remuneration for both of 
 these things, to which the defendants were undoubtedly en- 
 titled, was covered by the sum allowed to be charged by the 
 statute. Regard being had to the obligations of common car- 
 riers, which are these, — that persons holding themselves out 
 to the world as common carriers are under an obligation to 
 act as such (1) in relation to goods they profess to carry 
 (2) and have accommodation for, (3) provided that the goods 
 are tendered to them with a reasonable remuneration, and (4) 
 without subjecting the owner of the goods to any unreasonable 
 condition, — it was, evidently, an unwarrantable exercise of the 
 functions of a railway company to refuse to carry the goods of 
 
 1 Pegler v. Monmouthshire Sail. Co., 6 H. & N. 644 ; 39 L. J. Exch. 249 ; 
 9 W. E. 597. 
 
424 THE LAW OP CARRIERS. 
 
 a certain individual, unless he signed certain unjust and un- 
 reasonable conditions. In the case in which that was decided, 
 it appeared that the Bristol and Exeter Railway Company had, 
 in addition to the charges for the carriage of goods from place 
 to place, charged for collection and delivery where, in fact, 
 they had not collected, and did not deliver the goods. Under 
 these circumstances the plaintiff, having paid such charges, 
 was entitled to recover. 1 So, by its first act, it was empowered 
 to charge for the carriage of parcels, but, by a subsequent act, 
 which amended the former act, the company was authorized 
 to carry at so much per ton per mile, and it was decided that 
 the latter provision overrode the former so far as concerned 
 parcels exceeding 500 lbs. in weight, but not as to parcels 
 below that weight, and that if there had been an excess paid 
 upon parcels exceeding 500 lbs. in weight, it might be recov- 
 ered back. 1 Besides that, where sometimes by mistake, and 
 sometimes intentionally, the company had charged the sender 
 a heavier rate than was set out in the bills published by them, 
 the difference or excess might be recovered. 1 Where, how- 
 ever, the charges had been unequal, not inter se as regards 
 the individual himself, but unequal as looked at in comparison 
 with those demanded of others, the plaintiff could not recover 
 the sum in which the former was in excess of the latter. 1 In- 
 equality in the amount of trouble or expense incurred by the 
 railway company is a good ground for inequality in the charges 
 made by them for the conveyance of goods. But such an in- 
 equality will require to be clearly made out. Thus in Baxen- 
 dale v. London and South-Western Railway Company 2 the 
 company was proved to be bound to take the same rates and 
 charges from all persons alike under the same or similar cir- 
 cumstances. They were in the habit of charging a tonnage 
 rate upon goods over one hundredweight, and a higher rate for 
 articles under that weight ; when several parcels, each under 
 one hundredweight, were delivered at one and the same time 
 to the company by one person in a single consignment, and 
 
 1 Garton v. Bristol & Exeter Rail, MH.&C. 130 ; 35 L. J. Exch. 
 Co., 1 B. & S. 112 ; 30 L. J. Q. B. 108 ; 1 L. R. Exch. 137 ; 14 W. R. 
 273 ; 9 W. R. 734. 458 ; 12 Jur. n. s. 274. 
 
RESTRICTIONS UPON CARRIERS. 425 
 
 addressed to one and the same consignee, the company charged 
 a tonnage rate upon the aggregate weight. Common carriers 
 (the plaintiffs in the action) used the company's railway for 
 transmitting large consignments of goods directed to them- 
 selves as consignees, each of such consignments consisting of 
 several parcels, many of them bearing the names and addresses 
 of the persons to whom they were to be conveyed by the plain- 
 tiffs. The company charged the plaintiffs for each parcel con- 
 tained in each consignment, according to the weight of the 
 package, and such charge was, as compared with that made 
 to other persons, held to be an inequality, and it was also held 
 that the plaintiffs were entitled to recover back the excess. 1 
 
 Sec. 385. Charges for Packed Parcels.— Of course it is un- 
 reasonable to make different charges to different persons for 
 the same packed parcels. There may be additional risk 
 attendant upon the conveyance of packed parcels, and some 
 extra charge might not be unreasonable upon that ground, 
 although Martin, B., was inclined to lay down the general 
 rule " that no extra charge should be made for such parcels ; " 
 but it is evidently an unreasonable inequality to charge 50 per 
 cent, in addition to the usual rate for the highest charged 
 description of goods, for such parcels when they are sent by 
 carriers, such a charge not being exacted when packed par- 
 cels are sent by any other individual. 2 
 
 Sec. 386. Rules of Construction. — One rule of construction 
 must be noticed, and that is, that where a company has an 
 absolute power given to it by an Act of Parliament to fix 
 charges for railway carriage, such power is not rendered con- 
 ditional by a subsequent clause, requiring that all the charges 
 made shall be made equally on like goods carried under like 
 circumstances for all persons, the court holding, in the case 
 of The Great Western Railway Company v. Sutton, that the 
 condition only attaches after the power has been exercised. 3 
 
 1 See also Garton v. Bristol & Exe- Exch Ch. We shall have another 
 ter Rail. Co., 1 B. & S. 112 ; 30 L. J. opportunity of considering the subject 
 Q. B. 273 ; 7 Jur. n. s. 1234. of packed parcels. 
 
 2 Garton v. Bristol & Exeter Bail. 8 4 L. R. H. L. Cas. 226 ; 38 L. J. 
 Co., 4 H. & N. 33; 28 L. J. 169 Exch. 177; 18 "W. R. 92. 
 
426 THE LAW OF CARRIERS. 
 
 Another point which is of importance in connection with the 
 construction not only of special acts but of the Eailway Clauses 
 Act and other public statutes, is the question as to the precise 
 meaning of the equality clause when it speaks of things of the 
 " like description " conveyed under the " like circumstances." 
 
 Sec. 387. Meaning of "Like Description" and "Like Circum- 
 stances. — In his answer to the question proposed to the judges 
 by the Lord Chancellor (Cairns) in the case last referred to, 
 Willes, J., said : " The question as to the meaning of that 
 clause 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,' and not ' like description ' — they are like in those 
 qualities which affect the risk and expense of carriage, and 
 that they are conveyed under like circumstances where the 
 labor of 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 a like de- 
 scription. Bags of cotton and bags of jute, of like weight 
 and value, are of the like description, if there is no other dis- 
 severing circumstance proved ; but if it were superadded that 
 one was more risky or 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 
 the jury were sure so to hold. 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." And these 
 opinions were indorsed by Lord Chelmsford in giving the 
 judgment of the House of Lords. 1 
 
 Sec. 388. As to Packed Parcels and Inequality of Charge. 
 
 — Grounds of Warrantable Inequality. — Principles considered. 
 
 — The question as to the meaning of the equality clause nat- 
 urally leads us to the consideration of a class of cases in which 
 the question as to whether the packing of the parcel sent is to 
 be allowed to warrant an inequality in the charge, has come 
 
 1 Great Western Eail. Co. v. Sutton, 38 L. J. Exch. 184. 
 
EBSTEICTIONS UPON CARRIERS. 427 
 
 before the courts of law ; and we are of opinion that the above 
 excerpt from the answer of Mr. Justice Willes contains the 
 principle which must regulate the decision of all such cases. 
 Wherever there is such a difference in the nature, either of 
 the goods themselves, or of the way in which they are sent, as 
 will cause a greater amount of trouble, expense, or risk to the 
 railway company, they are entitled to make an additional 
 charge, but the addition to the ordinary charge for the con- 
 veyance of goods must be reasonable. It is evident that a 
 freedom to increase charges under any other circumstances or 
 conditions might be productive of incalculable evil, directly to 
 the public, and indirectly to the railway company. The mo- 
 nopoly of railways has, as yet, only extended to the carriage of 
 goods of large amounts, or for long distances, and there is still 
 a class of carriers who undertake the conveyance of small 
 parcels, or who carry for short distances in our towns. If a 
 railway company confines itself to the transmission of goods 
 between its own stations, such a business almost necessarily 
 implies the existence of other carriers who will undertake the 
 conveyance of the goods, to be despatched by rail, from the 
 house of the consignor to the company's station, and who will, 
 after the goods have been transmitted, convey them from the 
 destination station of the company to the house of the con- 
 signee. Such a trade for the collection and delivery of goods 
 may be extensive and lucrative ; and, in many instances, firms 
 have been able, through their branch establishments, to per- 
 form the double duty of collecting and delivering the same 
 goods. Under such circumstances the expediency of the con- 
 signor making a payment which would cover the whole ex- 
 penses of the collection, transmission by rail, and delivery to 
 the carrier with whom he was brought into immediate contact, 
 suggested itself. That being the case, the railway company 
 would carry for the carrier, as consignor to the carrier's 
 agents, as consignee, and the names and directions of the ulti- 
 mate consignees on the parcels would be a matter of trouble 
 and labor to the carrier's agent, but not to the railway com- 
 pany, if there was, through the legibility of the direction, no 
 doubt about the destination of the parcels, in so far as their 
 
428 THE LAW OP CARRIERS. 
 
 own duty in connection with them went. Therefore, as the 
 number or addresses of the parcels did not increase the risk, 
 trouble, or expense of the company, or make it greater than 
 what it would have been if they had not been so directed and 
 packed, there could be no reason for a larger charge, in conse- 
 quence of the fact of their being so addressed to different con- 
 signees. That such a course, if pursued, would have some 
 object, is obvious ; and that, had it been permitted, it would 
 have had an effect, is equally clear. 
 
 Sec. 389. The Probable Result of such a System. — The 
 result of the imposition of such extra charge would have been 
 the annihilation of the system we have described above. The 
 carriers would no longer have been able to carry on the work 
 they had been able to perform at the same rate, and either the 
 work that was effected by one transaction would have had to , 
 be done by means of two or more such bargains or transac- 
 tions, or the railway company would, either itself or by its 
 agents,. have extended its monopoly to the collection and de- 
 livery of goods. Thus a system which the convenience of the 
 public had suggested, and the success of which had been con- 
 firmed, would have been broken up, and inconvenience to the 
 public and injury to trade would have been the result; but 
 such a charge under such circumstances was held to be un- 
 reasonable. 1 
 
 Sec. 390. Company's Power to prevent Carriers entering 
 into Competition with it considered. — The case of Piddington 
 v. The South-Bastern Railway Company 2 illustrates what we 
 have said. In that case the defendants, by their Act of Incor- 
 poration, were empowered to fix the sum to be charged by 
 them in respect of the carriage of small parcels (not exceed- 
 ing 100 lbs. each), " as to them should seem proper," but there 
 was a proviso that this power was not to extend to " articles, 
 matters, or things sent in large aggregate quantities, although 
 
 1 PicMord v. Grand Junction Rail. Rail. Co., 11 Exch. 742 ; 25 L. J. 
 
 Co., 10 M. & W. 399 ; 3 Rail. Cas. Exoh. 137. 
 
 193 ; s. p. Edwards w. Great Western 2 5 C. B. u. s. Ill ; 27 L. J. C. P. 
 
 Rail. Co., 11 . C. B. 588 ; 21 L. J. 295 ; 4 Jur. n. s. 953. 
 C. P. 21 ; Crouch v. Great Northern 
 
RESTKICTIONS UPON CARRIERS. 429 
 
 made up of separate and distinct parcels, such as bags of 
 sugar, coffee, meal, and the like, but only to single parcels 
 unconnected with parcels of a like nature, which might be sent 
 upon the railway at the same time." By a subsequent act it 
 was provided, " that the charges by that act authorized to be 
 made for the carriage of goods, &c. by the company, should be 
 at all times charged equally to all persons, and after the same 
 rate in respect of all goods of a like description, and conveyed 
 on the same portion of the line, and that no reduction or ad- 
 vance should be made, either directly or indirectly, in favor of 
 or against any particular company or person." The defendant 
 company had charged double the ordinary rate for packed 
 parcels. And the jury having found that the alleged increased 
 risk from the carriage of packed parcels was altogether illu- 
 sory, it was decided that the company were wholly unjustified 
 in doubling their charge, and Willes, J., in his judgment, 
 said : " The first circumstance of the goods being packed or 
 tied together does not make them cease to be goods of a like 
 description. ... It is clear upon the whole facts of the case 
 that the increased charge is made for the purpose of prevent- 
 ing people who are likely to send packages of the description 
 in question, viz. carriers, from entering into competition with 
 the company in the conveyance of goods, — a thing which it 
 has over and over again been decided that these companies 
 cannot be permitted to do." In the case of Sutton v. Great 
 Western Railway Company, and Sutton v. South-Eastern Rail- 
 way Company, 1 which was tried before Martin, B., in London, 
 in July, 1864, it was proved that the plaintiff was a carrier, 
 and that his business was to collect parcels from different 
 tradesmen, to put the parcels into one package, and to send it 
 by railway, that the company issued a tariff of carriage rates, 
 and that the carrier was charged under it for " packed parcels." 
 Evidence was given that four wholesale houses in London were 
 in the habit of sending packages containing their own goods, 
 and also the goods of other tradesmen, and that they were 
 never charged for packed parcels but at a less rate. These 
 
 1 3 H. & C. 800 ; 11 Jur. jr. s. 879 ; 35 L. J. Exch. 18; 13- W. R. 1091 ; 
 13 L. T. n. s. 221 Exch. Ch. 
 
430 THE LAW OP CAKRIERS. 
 
 houses were never asked to state the contents of the packages 
 sent by them, and it did not appear that the company had any 
 direct information on the point. It also appeared in evidence, 
 that at an arbitration, held in London in 1849, it had been 
 proved, in the presence of the company's solicitor, that it was 
 the practice of the London houses to send packed parcels with- 
 out charge, and the question, "Has this practice of packing 
 parcels been notorious ?" having been allowed, it was answered 
 that for the last forty years it had been so general as to be 
 notorious among carriers. The learned judge directed the 
 jury that there was evidence upon which they might find that 
 parcels had been carried by the company for other persons 
 containing goods of a like description, and under like circum- 
 stances, at a less rate ; and that there was evidence upon which 
 they might find that the company knowingly charged the car- 
 rier more than they did other persons ; and he left it to them, 
 if they believed that the company knowingly and purposely 
 charged him a higher rate upon a packed parcel than other 
 persons, to find a verdict for the plaintiff. In this case it was 
 held that the evidence was properly received, and that the 
 direction of the judge was correct. 1 
 
 Sec. 391. charge for " Smalls." — In the same case it was 
 held that although the company was entitled, under 10 & 11 
 Vict. c. 224, § 53, to charge what they think fit for " smalls," 
 it was a power which they must exercise subject to the equality 
 clause (§ 50) of 7 & 8 Vict. c. 3. 
 
 Sec. 392. Every Special Act is to be specially considered. 
 — "While these principles must be a guide in the construction 
 of the special acts under which railway companies operate, and 
 have been had regard to in the framing of these acts, each 
 statute must be carefully considered in all its particular bear- 
 ings, which may materially alter and vary the general rules as 
 stated above. Thus, in one case, by a special act, a railway 
 company was entitled to charge for goods carried on their line 
 at rates not exceeding certain rates per ton. They were per- 
 mitted to charge a higher rate for small parcels, not exceeding 
 
 1 Sutton v. Great Western Rail. Co., 3 II. &. C. 800 ; 35 L. J. Exch. 18 ; 
 and Sutton v. South-Eastern Rail. Co., 11 Jur. n. s. 879. 
 
RESTRICTIONS UPON CARRIERS. 431 
 
 500 lbs. weight, provided that " articles sent in large aggre- 
 gate quantities, although made up of separate parcels, such as 
 bags of sugar, coffee, meal, and the like, shall not be deemed 
 small parcels ; but such term shall apply only to single parcels 
 in separate packages. The plaintiff, a carrier, sent to the 
 company at once many packages, all consigned to one con- 
 signee, each parcel being less than 500 lbs. weight, of articles 
 of similar classes, but not being separate packages of one 
 article. That being so, the company charged for them as 
 separate parcels, and it was held that they were justified in so 
 doing, as the proviso applied only to articles that were of such 
 a nature that a large quantity was generally made up in sepa- 
 rate packages. 1 
 
 Sec. 393. Where Equality Clause does not operate. — In 
 this case, of course, owing to the very definite wording of the 
 statute, the equality clause did not operate, and therefore 
 there was no call for the introduction of those principles which 
 have been enunciated above. A higher charge for small par- 
 cels, in proportion to weight, than for large parcels, is reason- 
 able and just. In connection with these, the company does 
 undertake more responsibility, seeing that from the very fact 
 of their size they are more apt to be lost or stolen. Such a 
 provision clearly is in conformity with the necessities of the 
 trade, and with the best opinions expressed upon the obliga- 
 tions of railway carriers. Again, that the higher rate for 
 small parcels should not be charged, if they are merely separate 
 parcels of an aggregate quantity, — say of sugar, — is just, 
 as we have seen that the more trade a company has, the more 
 cheaply can it perform its duties in relation to it ; and it is 
 just and reasonable to make reductions in favor of customers 
 who purchase largely or employ you much. In this case, then, 
 and under these circumstances, there was nothing in the con- 
 duct of the company which was calculated to prevent carriers 
 entering into competition with the company in the conveyance 
 of goods, and it was, therefore, distinguishable upon the broad- 
 est principles from those cases to which we have already 
 alluded. 
 
 1 Parker v. Great Western Eail. Co., 6 El. & Bl. 77; 2 Jur. n. s. 325; 25 
 L. J. Q. B. 209. 
 
432 THE LAW OP CARRIERS. 
 
 Sec. 394. Separate Parcels. — The second point -which was 
 raised in this case, and which was also given in favor of the 
 company, admirably contrasts with that stated above, so as to 
 mark the distinction we have insisted upon. It appeared that 
 the plaintiff had sent a parcel of coffee less than 500 lbs. 
 weight, and afterwards, although upon the same day, another 
 parcel of coffee, both consigned to himself, and for the same 
 train. When the first was left, notice was given that the 
 plaintiff would probably send more, but it was not received 
 on any special terms. The company charged for these as 
 separate parcels, and were justified in so doing. 1 
 
 Sec. 395. Where the Contract has been made in a Foreign 
 Country. — One other case which is to be distinguished, in so 
 far as the principles which led to its decision are concerned, 
 from those above referred to, or rather which confirms those 
 principles by reason of the exceptional nature of the facts, 
 deserves some attention. That is the case of Branley v. The 
 South-Eastern Railway Company. 2 That company was incor- 
 porated for the conveyance of passengers and goods from Lon- 
 don to Folkestone, under acts of Parliament which prohibited 
 them making unequal charges. They obtained another act, 
 enabling them to establish a communication by steam-vessels 
 with Boulogne, which contained no provision as to equality of 
 rates for the carriage of goods. It appeared that there was 
 nothing in the law of Prance which precluded the company as 
 public carriers from making such contracts for that purpose as 
 they might think most for their own interest. The company, 
 by their tariff, charged certain rates for small parcels, with a 
 double charge for " packed parcels ; " and it was held that, so 
 far as regarded the contract for the carriage of such parcels 
 from Boulogne to London, there was nothing illegal in this in- 
 creased charge. This was, of course, decided upon the prin- 
 ciple that the legality of a contract is to be determined by the 
 lex loci contractus. 
 
 Sec. 396. 31 & 32 Vict. o. 119. — Before quitting this sub- 
 ject, the Regulation of Railways Act, 1868, 3 remains to be 
 
 1 Parker v.. Great Western Rail. a 12 C. B. n. s. 63; 31 L. J. C. P. 
 Co., 6 El. & Bl. 77; 25 L. J. Q. B. 286 ; 6 L. T. n. s. 458. 
 209. 8 31 & 32 Vict. c. 119. 
 
RESTRICTIONS UPON CARRIERS. 433 
 
 mentioned. That act contains provisions of fairs at stations 
 for securing equality of treatment where a railway company 
 works steam-vessels, for securing the public against extortion 
 when two railways are worked by one company, and for the 
 furnishing of particulars of charges for goods, which, as they 
 may be regarded as restrictions upon the railway company, 
 may with advantage be set out in this place. 
 
 SeCi 397. Provision for securing Equality of Treatment 
 ■where Railway Company works Steam-vessels. — The 16th sec- 
 tion enacts that " where a 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 towns 
 and 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 to 
 passengers conveyed in a like vessel passing between the same 
 places under like circumstances ; no reduction or advance in 
 the tolls shall be made in favor of or against any person using 
 the steam-vessel in consequence of his having travelled, or 
 being about to travel, on the whole or any part of the com- 
 pany's railway, or not having travelled, or not being about to 
 travel, on any part thereof, or in favor of or against any person 
 using the railway in consequence of his having used, or being 
 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 the conveyance of a passenger by a steam- 
 vessel and on the railway, the ticket shall have the amount of 
 toll charged for conveyance by the steam-vessel distinguished 
 from the amount charged for conveyance on the railway. 
 
 Sec. 398. Company bound to furnish Particulars of Charges 
 for Goods. — "The provisions of the Eailway and Canal Traffic 
 Act, 1856, 1 so far as the same are applicable, shall extend to 
 the steam-vessels and to the traffic carried on thereby." The 
 17th section enacts that " where any charge shall have been 
 made by a company in respect of the conveyance of goods 
 over their railway, on application in writing within one week 
 
 1 17 & 18 Vict. c. 31. 
 23 
 
434 THE LAW OP CARRIERS. 
 
 after payment of the said charge made to the secretary of the 
 company by the person by whom or on whose account the 
 same has been paid, the company shall within fourteen days 
 render an account to the person so applying for the same, dis- 
 tinguishing 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 loco- 
 motive power, and how much of such charge is for loading 
 and unloading, covering, collection, delivery, and for other ex- 
 penses, but without particularizing the several items, of which 
 the last-mentioned portion of the charge may consist." 
 
 SEC. 399. Charges -where two Railways are worked by- 
 one Company. — The 18th section provides that "where two 
 railways are worked by one company, then, on. the calculation 
 of tolls and charges for any distance in respect of traffic 
 (whether passengers, animals, goods, carriages, or vehicles) 
 conveyed on both railways, the distances traversed shall be 
 reckoned continuously on such railways as if they were one 
 railway." 
 
 Sec. 400. Mileage. — A question arises in this connection, 
 which, is of some importance. It is this : Is a railway com- 
 pany, which by its act is empowered to charge a mileage rate 
 for the carriage of goods, and which has an- option of convey- 
 ing the goods by either route, one of which is considerably 
 longer than the other, and has actually conveyed them by the 
 longer route, entitled to charge the mileage rate for the route 
 actually taken ? And it was decided that it was so entitled, 1 
 if such deviation was reasonable. Willes, J., said : " A carrier 
 is not bound to carry goods by the shortest route, but only by 
 the route by which he generally carries them, and which he 
 professes to go. In the old coach days two coaches oftea 
 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 
 
 1 London & South-Western Rail. Co. v. Myres, 21 L. T. ». s. 460; 18 
 W. R. 69 ; 5 L. R. C. P. 1. 
 
RESTRICTIONS UPON CARRIERS. 435 
 
 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." That is undoubtedly true ; 
 but if a company had two such lines to the same place, and 
 one of these was not exclusively used for passenger traffic, 
 but was used, like the other, for both kinds of traffic, it would 
 undoubtedly be a prejudice to one party, of which he would 
 have a right to complain to the court, that while his goods 
 were always sent by ,ttie longer route, a rival tradesman's 
 goods were invariably sent by the shorter, by reason of which 
 the latter was advantaged in his trade to the prejudice of the 
 former. And it seems to us that under such circumstances 
 the court would interfere if it could be shown that the com- 
 pany so acted systematically. 
 
 SEC. 401. Recovery of Over-Charges. — The Allowance of 
 Interest. — Amount Recoverable. — In the case of Edwards v. 
 The Great Western Railway Company, 1 which was tried before 
 the 7 & 8 Vict. c. 3, came into operation, it appeared that the 
 company were obliged by 2 & 3 Vict. c. 27, § 24, to charge for 
 carriage to all persons equally, but that they charged Parker, 
 a carrier, more than they did the public. This, as we have 
 seen, 2 had already been decided to be an over-charge, and in 
 this case it was decided that the over-charge was recoverable 
 as money received to the carrier's use. Another point of some 
 importance in connection with this subject was raised in this 
 case. The question was as to whether the arbitrator was au- 
 thorized, if he thought fit, to give interest. The answer to 
 this question depended on the construction of a statute at that 
 time recent, and on the answer to the question, Was that a sum 
 certain? The plaintiff contended that lie had been paying 
 from the commencement a sum certain in excess of every 
 charge. There was a demand in writing of the debt, and a 
 demand of interest under the Act of Parliament, and conse- 
 quently the court held that there was a sum certain, in respect 
 of which the demand had been made for principal and interest, 
 
 1 21 L. J. C. P. 72; 11 C. B. 545. Western Rail. Co., 6 El. & Bl. 77; 2 
 
 2 Ante, p. 427, and Parker v. Great Jur. n. s. 325 ; 25 L. J. Q. B. 209. 
 
436 THE LAW OP CARRIERS. 
 
 and that the arbitrator might, if he thought fit, give interest. 
 Where a carrier sent goods by the Bristol and Exeter Railway 
 Company to be carried on their line, as also on that of the 
 Great Western, a continuous line, he objected to the charges 
 as excessive, but paid the amount claimed under protest, mak- 
 ing no tender of any sum as a reasonable charge ; it was held 
 that he was entitled to recover back the amount paid above 
 what was a fair and reasonable charge in an action for money 
 had and received, and that the whole sum so overpaid was 
 recoverable against the defendants, though a portion of it was 
 received by them as agents for the Great Western Railway 
 Company. 1 In that case it was held that the court was gov- 
 . erned by the decision in Ashmole v. Wainwright. 2 
 
 Sec. 402. Where Money was paid to obtain- Possession of 
 Goods. — In that case carriers refused to redeliver the plain- 
 tiff's goods, which they had carried for him, except upon pay- 
 ment of 51. 5s. charges. He insisted that he was not liable to 
 pay anything ; but, ultimately, the carriers, having said that 
 they would take nothing less than the whole sum, he paid the 
 whole to regain his goods, at the same time protesting that he 
 was not liable to pay anything, and that, if he was liable, the 
 charge made by the defendants was exorbitant. He had not 
 tendered or named any smaller sum. The facts, therefore, in 
 this and in the last case were very similar. Afterwards the 
 plaintiff, without having demanded the return of any surplus, 
 brought an action for money had and received, claiming by his 
 particulars the whole sum as having been paid, in order to 
 obtain possession of his goods, under protest that he was not 
 liable to pay the same, or any part thereof ; or, if he was liable 
 to pay some part, that the sum was exorbitant. The jury 
 found that the carriers were entitled to 11. 10s. Qd., and the 
 court held, upon these facts, that the plaintiff was entitled to 
 recover the difference in this form of action, and that it was 
 not necessary to his right of recovery that he should have 
 
 1 Parker v. Great Western Rail. 2 2 Q. B. 837; 2 P. & D. 217; 6 
 Co., 6 Rail. Cas. 776 ; 6 Exoh. 702. Jur. 729. 
 See also Snowden v. Davis, 1 Taunt. 
 359. 
 
BESTRICTIONS UPON CARRIERS. 437 
 
 tendered any specific sum. Two other points of law may be 
 noticed, shortly, in connection with the question of when money 
 is paid in excess of the amount which a railway company 
 has, under its special acts or under some public statute, a 
 right to charge, and these are, first, that the 17 & 18 Vict. c. 
 31, does not in any way interfere with the right of a party 
 aggrieved by over-charges to maintain an action to recover 
 back the sums paid in excess. 1 Consequently, where a com- 
 pany has, in contravention of the equality clauses, exacted a 
 larger sum from an individual than it was entitled to charge, 
 the amount of that excess can be recovered back as money 
 had and received. 2 
 
 Sec. 403. Restrictions upon Carriers other than Railway 
 Carriers. — We come now to the consideration of the restrictions 
 which are incident to other branches of the trade, and these 
 also are statutory restrictions. As considerable attention and 
 space have been devoted to the consideration of the questions 
 which occur in the event of the carrier being a carrier by rail, 
 it will scarcely be necessary to devote so much time to the 
 restrictions which are imposed upon inland carriers by water, 
 or upon carriers by sea. We have already seen, and the gen- 
 eral plan of our work has sufficiently indicated, that there is 
 no distinction in principle between the law relating to one of 
 these classes and the law relating to the other. 3 Independently 
 of pertain statutes, already alluded to, 4 the liabilities and duties 
 
 1 Baxendale v. Eastern Counties Morse v. Slue. 1 Vent. 190, 238 ; Sut- 
 Rail. Co., 4 C. B. n. s. 63; 27 L. J. ton v. Mitchell, 1 T. R. 18. See also 
 C. P. 137. Story on Bailm. § 496, 5th ed., and 
 
 2 The Great Western Railway v. Angell on Carriers, 4th ed., § 88. 
 Sutton, 4 L. R. H. L. Cas. 226 ; 38 i See 7 Geo. II. c. 15, which enacts 
 L. J. Exch. 177 ; 18 W. R. 92. Some that the proprietor of a vessel shall 
 modifications with regard to inspection not be liable beyond the amount of 
 of railways, the company's return of the value of the ship and freight for 
 accidents to the Board of Trade, &c, the loss by theft, &c. of certain things, 
 were made by the Railway Regulation such as gold, silver, &c. ; and 26 Geo. 
 Amendment Act, 34 & 35 Vict. c. 78, III. c. 86, § 2, which exempts the 
 §§ 3, 4, 5, 6, 7, 8. owner of a ship from liability for loss 
 
 8 Per Bullish, J., Trent Navigation by fire. See also Hunter v. M'Gown, 
 
 C,o. v. Wood, 3 Esp. 132 ; Wardell v. 1 Bligh, 573 ; cf. Morewood v. Pol- 
 
 Mourillyan, 2 Esp. 693 ; Dale v. Hall, lock, 1 El. & Bl. 743 ; 22 L. J. Q. B. 
 
 1 Wils. 281 ; Richardson v. Sewell, 251. 
 per' Loud Ellenboeotjsh, 2 Sm. 205; 
 
438 THE LAW OP CARRIERS. 
 
 of carriers on inland waters, or on outland waters, or the sea, 
 are the same as those which affect common carriers on land. 
 Wherever there was ground for distinction between these 
 classes, we have pointed out what that distinction was, and 
 generally upon what principles the distinction had been 
 
 made. 
 
 « 
 
 SEC. 404. Assimilation of Railway and Canal Traffic Law. 
 — But when the traffic upon lines of railway was regulated by 
 statutory enactments, the anomalous character of laws which 
 left free canal and navigation companies similarly circum- 
 stanced with the railway companies, for which they had 
 legislated, struck the Houses of Parliament, and several acts, 
 which to some extent assimilated the law of canals to that of 
 railways, were introduced and passed. 1 And more recently 
 certain provisions have been made, for those carriers who 
 undertake external traffic as well as those who act as carriers 
 within the confines of the realm. We have already pointed 
 out that by the 8 & 9 Vict. c. 28, the power which is given to 
 canal companies and to the commissioners of navigable rivers 
 to vary their tolls, rates, and charges on different parts of 
 their navigation, is restricted by a similar provision to that 
 which is in force in relation to railway companies, — that the 
 tolls shall be charged equally to all persons under like circum- 
 stances. We will now quote some of the provisions of another 
 act of the same year, which brought the law which bears upon 
 canal companies still more nearly into conformity or parallel- 
 ism with that which regulates traffic on lines of railway. 2 It 
 begins by reciting that " whereas by divers Acts of Parliament 
 railway conipanies have been empowered to convey upon their 
 railways all such goods, wares, merchandise, articles, matters, 
 and things, as may be offered to them for that purpose, and to 
 make such reasonable charges for such conveyance as they 
 may from time to time determine upon, and whereas greater 
 competition for the public advantage would be obtained if 
 
 1 See 3 & 4 Viet. c. 50, and 8 & 9 Co., 27 L. J. Excli. 159 ; Cowley ». 
 
 Viet. e. 28. See also Whitehouse v. Mayor of Sunderland, 30 L. J. Exqji. 
 
 Birmingham Canal Co., 27 L. J. Excli. 127. 
 25 ; Mauley v. St. Helen's Canal 2 8 & 9 Viot. c. 42. 
 
RESTRICTIONS UPON CARRIERS. 439 
 
 similar powers were granted to canal and navigation com- 
 panies which have from time to time been incorporated or 
 established under the authority of Parliament : Be it therefore 
 enacted : That from and after the passing of this act it shall 
 be lawful for the company of proprietors, trustees, or the 
 undertakers of any canal, river, or navigation, or their respec- 
 tive committees, directors, or managers, or their superintend- 
 ents, or other agents, by them duly authorized to carry as 
 common carriers, for their own profit, upon their respective 
 canals, rivers, or navigations, or upon any railways or tram- 
 ways belonging thereto, and constructed under the powers of 
 their respective Acts of Parliament, or upon any other canals, 
 rivers, or navigations communicating therewith, either directly 
 or by means of any intermediate canal, river, or navigation, 
 all such goods, wares, merchandise, articles, matters, and 
 things, as may be intrusted to them for that purpose : and for 
 the better enabling them to do so to purchase, hire, and con- 
 struct, and to use and employ any number of boats, barges, 
 vessels, rafts, carts, wagons, carriages, and other conveniences, 
 and also to establish and furnish such haulage, truckage, or 
 other means of drawing or propelling the same, either by 
 steam, animal, or other power, or for the purpose of collect- 
 ing, carrying, conveying, warehousing, and delivering such 
 goods, wares, merchandise, articles, matters, and things, as to 
 any such company or undertakers shall seem fit, and to make 
 such reasonable charges for such conveyance, warehousing, 
 collecting, and delivery as they may respectively from time to 
 time determine upon, in addition to the several tolls or dues 
 which any such company or undertakers are now authorized 
 to take for the use of the said canals, navigations, or rail- 
 ways." 
 
 SEC. 405. Company to be subject to By-laws of any other 
 Company upon whose Canal they may act as Carriers. — The 
 2d section provides that " Any such company, commissioners, 
 trustees, or undertakers, using or employing any steam-power 
 for propelling by means of paddle-wheels, boats, barges, ves- 
 sels, or rafts, upon any canal, river, or navigation (other than 
 the respective canals, rivers, and navigations), shall use and 
 
440 THE LAW OP CARRIERS. 
 
 employ the same, subject to such by-laws, rules, and regula- 
 tions, touching the construction, dimensions, power, rate of 
 speed, and otherwise, of such boats, barges, vessels, or rafts, 
 so propelled by steam as aforesaid, as the directors, commis- 
 sioners, or undertakers of the canals, rivers, and navigations, 
 respectively, on which such last-mentioned boats, barges, ves- 
 sels, or rafts shall be used and employed, shall see fit to make 
 and publish in that -behalf ; and they are hereby authorized 
 and empowered to make and publish such by-laws, rules, and 
 regulations, and from time to time to add to or amend the 
 same as need may require, but it is hereby expressly provided 
 and enacted that any by-laws, rules, and regulations so to be 
 made and published shall be made equally applicable and bind- 
 ing on all companies and persons so using such last-mentioned 
 boats, barges, or other vessels." 
 
 SEC. 406. Powers of such Company, Trustees, &c. — By 
 section 3, " It shall be lawful for any such company, trustees, 
 or undertakers to purchase or provide and use boats and other 
 vessels, and also horses, steam, or other power, and machinery 
 for hauling, tracking, and towing upon their own canals, 
 rivers, or navigations, or upon any other canals, rivers, or 
 navigations communicating therewith, either directly or by 
 means of any intermediate canal, river, or navigation, and to 
 employ a sufficient number of competent persons for those pur- 
 poses, and to demand and receive for the use of such boats, 
 and for such hauling, tracking, or towing, such reasonable 
 hire or remuneration as shall be fixed by the respective com- 
 mittees, directors, or managers of such canals or navigations, 
 or as shall be agreed upon between them and any person de- 
 siring the use of any such boats or vessels, or requiring such 
 hauling, tracking, or towing." 
 
 Sec. 407. Tolls to be charged equally to all Persons. — 
 Section 4, however, provides that " All charges to be made by 
 any such companies for the carriage of any such goods or 
 wares, merchandise, articles, or things, or for the use of their 
 boats and other vessels, or for the supply of haulage, trackage, 
 or other power, shall be at all times charged equally to all 
 persons, and after the same rate whether per mile or per ton 
 
RESTRICTIONS UPON CARRIERS. 441 
 
 per mile, or otherwise, in respect of all goods, wares, mer- 
 chandise, articles, or things of a like description, and conveyed 
 or propelled in a like boat or vessel, at the same rate of speed, 
 and passing along the same portion of any such canal or navi- 
 gation, under the like circumstances, and no reduction or ad- 
 vance in any of such charges shall be made either directly or 
 indirectly in favor of or against any particular company or 
 person passing along or using, or sending goods, wares, mer- 
 chandise, articles, or things, along the same portion of any 
 such canal or navigation, under the like circumstances." 
 
 Sec. 408. Liability of such Company. — And the 6th sec- 
 tion of the same act enacts that " Nothing herein contained 
 shall, in any case, extend to charge or make liable any such 
 company further or in any other case than where, according 
 to the laws of this realm, for the time being, common carriers 
 would be liable, nor shall anything herein contained extend to 
 deprive such company of any protection or privilege which 
 either now or at any time hereafter common carriers have or 
 may be entitled to, but such company shall from time to time 
 and at all times have and be entitled to the benefit of every 
 such protection and privilege." 
 
 It is, it seems to us, unnecessary to consider this enactment 
 at any considerable length. It is of importance that the 
 writers of text-books should endeavor to make clear the prin- 
 ciples which have regulated legislative action with regard to 
 any particular subject, and, at the same time, to make equally 
 clear the principles which have influenced the decisions of our 
 courts of law. But where two enactments are the same in 
 principle, and differ only in their application to facts and cir- 
 cumstances, their duty is performed if they give their readers 
 an opportunity of judging for themselves of the similarity of 
 the principles involved, and allow them to adapt those prin- 
 ciples to the varying, circumstances of individual cases. It is, 
 however, necessary to state that the 17 & 18 Vict. c. 31, is an 
 act which regulates the traffic and tolls on canals, as well as 
 on railways, as we have seen by the quotations made from it 
 in an earlier part of this chapter, and that the remedies given 
 to the public in the event of preferences given or prejudices 
 
442 THE LAW OP CARRIERS. 
 
 imposed by a canal company are the same as those which are 
 bestowed upon individuals complaining of a contravention of 
 the provisions of that act. It is unnecessary, therefore, in this 
 place, as the rules and forms of proceeding against canal com- 
 panies violating the provisions of this statute x were given in 
 the same place, to do more than to refer the reader to what we 
 then said, 2 and to pass on to the consideration of one or two 
 cases which will indicate the similarity of the principles in- 
 volved in all these cases. This briefly. 
 
 Sec. 409. Light Goods and Heavy Goods. — Where a canal 
 act gave a higher tonnage for light goods than for heavy 
 goods. If a jury find that certain goods were heavy goods 
 when the act passed, ten years' subsequent consent of the 
 country to consider the same species of goods light goods will 
 not entitle the canal company to demand for these the toll on 
 light goods. 3 By a canal act a toll of one shilling per ton was 
 imposed on all coal, &c. (in addition to the ordinary toll), 
 navigated on any part of the canal from a particular specified 
 place, or from any place within two miles thereof. In a case 
 in which this provision had to be interpreted, it was held that 
 this only applied to voyages commencing within the specified 
 limits, and that no such additional toll was payable for coal 
 loaded at a place more than two miles from the spot specified, 
 although conveyed upon a part of the canal within two miles 
 of that spot. 4 Under a canal act imposing a toll " on coals, 
 lime, timber, bricks, stone, and all other goods, wares, or mer- 
 chandise whatsoever," gravel, and materials for the repair of 
 turnpike roads are liable to toll. 5 
 
 Sec. 410. The Rules of Construction applicable to such Acts. 
 — These and other cases 6 indicate that the rules of construc- 
 tion applied to the special acts of canal companies are the 
 
 1 See Reg. Gen. C. P. H. T. 18 5 Coulton v. Ambler, 3 Rail. Cas. 
 Vict. ; 15 C. B. 473, 476. 724 n. ; 13 M. & W. 403. 
 
 2 Ante, p. 250 et seq. 6 Fisher v. Lee, 12 A. & E. 622 ; 
 8 Staffordshire & Worcestershire 4 P. & D. 447; Grantham Canal Nav- 
 
 Caual Co. v. Trent & Mersey Canal igation v. Hall, 3 Rail. Cas. 710 ; 13 
 
 Co., 6 Taunt. 151. M. & W. 114; 13 L. J. Exch. 283; 
 
 4 Brittain v. Cromford Canal Co., affirmed, 14 M. & W. 880. 
 3 B. & Aid. 139. 
 
RESTRICTIONS UPON CARRIERS. 443 
 
 same as those which apply to railway companies' acts. This 
 principle will be more clearly understood by a perusal of the 
 under-noted cases, which refer to the amount of tolls so taken 
 on canals, and the circumstances under which these are exi- 
 gible. 1 With reference to the special subject of this chapter, 
 the restrictions which are imposed upon monopolist companies 
 for the benefit of the public, little need be said. The follow- 
 ing cases will illustrate the correctness of the statements 
 made above. 
 
 SEC. 411. Rule in Lees v. Manchester Canal Co. — In Lees 
 v. The Manchester Canal Company, 2 it appeared that the de- 
 fendants were empowered to take such rates as should be 
 fixed at a general assembly of the proprietors, not exceeding 
 Id. per ton per mile upon coal, and to reduce the rates at a 
 general assembly held on certain notice, but no such reduc- 
 tion was to be made without the consent of the major part in 
 value of the proprietors. A contract was made by individuals 
 with the company, but not at such general meeting ; by which 
 agreement, in consideration that those individuals would make 
 a navigable cut to convey water from their collieries, through 
 land not within the statutable line of the canal, into the canal, 
 and convey the same to the company, the latter should permit 
 them to carry their coals through the cut and along the canal 
 for Is. 3d. per ton, the company paying back Qd. per ton. 
 This agreement was held to be illegal and void : " 1st, as a 
 speculation by which the company might gain more or less 
 than the legislature intended they should take under similar 
 circumstances from the public in general ; 2dly, as extending 
 in effect the power of the company to purchase land beyond 
 the limits assigned by the act ; 3dly, as enabling them to 
 raise more capital than they were entitled by the act to do, by 
 means of paying for land or works by a total or partial sale of 
 their tolls, which tolls are made security for the money sub- 
 
 1 Tamar Navigation Co. v. "Wag- Rail. Cas. 780 Exch. Ch. ; Leeds & 
 
 staff, 9 Jar. N. s. 1324 ; 4 B. & S. 288 ; Liverpool Canal Navigation Co. v. 
 
 32 L. J. Q. B. 295 ; Same v. Grand Hustler, 2 D. & R. 656; 1 B. & C. 
 
 Junction Canal Co., 11 Exch. 786 ; 25 424. 
 L. J. Exch. 222 ; Beg. v. Leicester & 2 11 East, 645. 
 Northamptonshire Union Canal Co., 3 
 
444 THE LAW OP CAERIEES. 
 
 scribed or taken on mortgage ; and 4thly, because the tolls 
 could, in no instance, be reduced but at a general assembly, 
 and that this, in fact, operated as a reduction of the tolls pro 
 tanto." 
 
 SEC. 412. Equality Clause in a Canal Act. — Competition. — 
 By an Act of Parliament, the Swansea Canal Company was 
 entitled to demand a fixed sum , for goods carried upon any 
 part of the canal, which rates should be equal throughout the 
 whole length of the intended canal. By 8 & 9 Vict. c. 28, 
 subsequently passed, proprietors of canals were empowered 
 from time to time to alter, or vary, the tolls granted to them, 
 either upon the whole, or on any particular portion or portions 
 of such canals, according to local circumstances, or the quan- 
 tity of traffic or otherwise, as they should think fit, with a 
 proviso that such tolls were to be charged equally to all per- 
 sons, and after the same rate, whether per mile, or per ton 
 per mile, in respect of all goods of the like description con- 
 veyed, or propelled, in a like boat passing along, or using, the 
 same portion of the canal under the like circumstances. In 
 this case it was held incompetent to the company to take a 
 proportionally less toll per ton per mile for goods carried 
 a given distance (5 miles) along any portion of the canal 
 than for goods carried less than that distance. 1 In the same 
 case it was held that it was competent to the company to 
 agree to carry at a lower rate for a particular individual in 
 consideration of a large guaranteed minimum toll, in order to 
 enable the company to enter into competition with a rival line 
 of railway. 1 
 
 SEC. 413. Restrictions on Carriers by Water. — One reason 
 has induced us to dwell with less minuteness upon all the 
 details incident to the carriage of goods by sea, and that is, 
 that the subject is so carefully considered and so. admirably 
 expounded in various works upon shipping. It would almost 
 seem supererogatory to do more than refer to these works for 
 all the accurate and minute information that may be required, 
 
 1 Strick v. Swansea Canal Co., 16 Conservators, 1 B. & Ad. 561 ; Goody 
 C. B. n. s. 245 ; 12 W. & 711 ; 10 v. Penny, 9 M. & W. 687. 
 L. T. n. s. 460. See also Rex v. Tone 
 
RESTRICTIONS UPON CARRIERS. 445 
 
 while we, at the same time, point out those general principles 
 which regulate the traffic upon the waters other than canals 
 and navigable rivers. With regard to the subject under con- 
 sideration, in so far as it refers to ships, and the transit of 
 goods by sea, it may be said that our limits do not permit of 
 our dealing with it in this place. In one light the whole 
 of the statutory provisions with reference to the registration 
 of ships * might be looked upon as restrictions upon the com- 
 mon carrier's right to trade under the ordinary obligations 
 imposed upon him by the common law. So also might the 
 statutory regulations with regard to the wages and disburse- 
 ments, 2 the penalties imposed upon masters of ships for refus- 
 ing to employ a pilot, 3 and the like, be regarded as restrictions 
 upon the freedom of such a carrier, but these subjects evi- 
 dently could not be considered in this treatise, and are done 
 ample justice to in works devoted to the law of shipping, and 
 to the consideration of the Merchant Shipping Acts. 
 
 SEC. 414. Inapplicability of some Restrictions to Ship-owners. 
 — As the same statutory restrictions which have been im- 
 posed upon railway and canal companies, with a view of pre- 
 venting the injury of trade, and the prejudice of the public 
 which would arise, through the spread of monopoly from the 
 trade of conveying to the trade of sale, do not apply, for very 
 obvious reasons, to carriers by sea, and as the statutory regu- 
 lations which are in force with regard to passenger ships will 
 fall under our notice in a subsequent part of this work, we 
 need in this place do nothing more than end the chapter. 
 
 1 17 & 18 Vict. o. 104 ; 18 & 19 tifioate of Kegistry, 17 & 18 Vict. c. 
 
 Vict. c. 91 ; 17 & 18 Vict. c. 120, re- 104, § 44, &c. 
 
 pealing 3 & 4 Will. IV. c. 55 ; 8 & 9 2 17 & 18 Vict. c. 104, pt. iii. § 191 ; 
 
 Vict. c. 89 ;' 12 & 13 Vict. c. 29, and 24 & 25 Vict. c. 10, § 10. 
 16 & 17 Vict. c. 131 ; and as to Cer- 8 17 & 18 Vict. c. 104, § 353. 
 
446 
 
 THE LAW OP CAEEIEES. 
 
 CHAPTER X. 
 
 THE EIGHTS OP CAEEIEES. 
 
 Sbc. 415. 
 
 416. 
 
 417. 
 418. 
 419. 
 
 420. 
 421. 
 422. 
 
 423. 
 
 424. 
 
 425. 
 
 426. 
 
 427. 
 
 428. 
 429. 
 
 430. 
 
 431. 
 
 432. 
 
 433. 
 
 434. 
 
 435. 
 
 436. 
 437. 
 
 438. 
 439. 
 440. 
 441. 
 
 Eelations of Eight and Duty- 
 considered. 
 
 Carriers' Eight to retain Goods 
 bailed to Them. 
 
 Insurable Interest in Goods. 
 
 Lien. 
 
 Property remains in Con- 
 signee. 
 
 Lien a Qualified Eight, &c. 
 
 When Liens at Law exist. 
 
 Two Kinds of Lien, Particular 
 and General. 
 
 Question as to Expediency of 
 General Lien. 
 
 Courts discourage General 
 Liens. 
 
 General Usage.— Carrier's Lien. 
 — Effect of General Notice. 
 
 Creation of General Lien by 
 Notice, by Contract, &c. 
 
 Proposed Eestriction on this 
 Eight. i 
 
 Distinction between Duties. 
 
 Eestriction of the Eight to cre- 
 ate Liens. 
 
 Eight of Stoppage in Transitu 
 not affected by. 
 
 Eight of Lien applies to Pas- 
 senger's Luggage. 
 
 Where Consignor is Wrongful 
 Owner. 
 
 Custom of Trade as to Wharf- 
 inger and Warehouseman. 
 
 Limitation or Cessor of Eight 
 of Lien by Contract. 
 
 Where Charges not to be paid 
 until Future Date. 
 
 Over what Goods Lien extends. 
 
 Where Contracts are not Sepa- 
 rate. 
 
 Lien lost with Loss of Possession. 
 
 Lien of Ship-owner. 
 
 Express Stipulations. 
 
 Modifications by Revenue Regu- 
 lations. 
 
 Sec. 442. 
 443. 
 444. 
 445. 
 446. 
 
 447. 
 
 448. 
 
 449. 
 
 450. 
 
 451. 
 
 452. 
 453. 
 454. 
 
 455. 
 
 456. 
 457. 
 458. 
 459. 
 
 460. 
 461. 
 462. 
 463. 
 
 464. 
 
 465. 
 466. 
 
 467. 
 
 468. 
 
 470. 
 471. 
 472. 
 
 Termination of Lien. 
 Lien on Passenger's Luggage. 
 Rule as to a Number of Parcels. 
 Where there are two Contracts. 
 Where Carrier is Charterer of 
 
 Ship. 
 Who has Legal Possession of 
 
 Ship. 
 No Lien without Actual or Con- 
 structive Possession. 
 Stipulations equivalent to an 
 
 Actual Demise. 
 How Question of Ownership is 
 
 to be decided. 
 Owner's Power to reserve his 
 
 Right of Lien. 
 Where no Lien exists. 
 Lien for Port Charges. 
 Payment of Freight at Lading 
 
 of Ship or on Delivery. 
 Payment at certain Subsequent 
 
 Date. 
 Revival of Lien. 
 Remuneration. 
 
 Freight. — Express Agreement. 
 When Owner is to be treated 
 
 as a Carrier. 
 When Freight is due. 
 Where Right commences. 
 Arrangements for Conveyance. 
 Mode of calculating Freight in 
 
 certain Cases. 
 Capture. — Recapture. — Trans- 
 shipment. 
 Apportionment of Freight. 
 When Performance of Voyage 
 
 is Impossible. 
 Probable Holding of a Court of 
 
 Equity. 
 Abandonment of Cavgo by 
 
 Owner. 
 Legality of Voyage. 
 Right to Cargo. 
 8 & 9 Vict. c. 20, § 27. 
 Construction of Statute. 
 
THE RIGHTS OP CARRIERS. 447 
 
 SEC. 415. Relations of Right and Duty considered. — Up 
 to the present time we have been, for the most part, occupied 
 in the consideration of the duties of carriers. The right of 
 one man is connected with the duty of another. A right to 
 a thing cannot exist. If we can enjoy the uses of a thing, 
 then what we call our right to it is a right to the non-inter- 
 vention of our neighbors, whose interference might prevent 
 the enjoyment of the uses which the article subserves. This 
 is evidently a right to a duty. Right is a mental fact, and it 
 can only have for its correlative another mental fact, — duty. 
 Now the duties of a carrier are the rights of the public. The 
 duty to carry is a right of the public to have its goods carried. 
 The duty to deliver is a right of those individuals who have 
 intrusted their goods to the carrier for conveyance, to have 
 those goods delivered to the person and at the place to which 
 they were directed and sent. This scarcely requires explana- 
 tion. It is, however, equally evident that where there are two 
 parties to a transaction, and all the rights are upon one side, 
 and all the duties upon the other, the affair is apt to merit the 
 name of injustice. Of course, where men enter voluntarily 
 into an agreement, it is incumbent upon them to see that they 
 get fair play. As a rule, they are in the habit of effecting 
 this object. And while to a mere spectator there may be 
 seeming injustice in some transaction, there may, neverthe- 
 less, be a perfect equilibrium of rights and duties. Such 
 things as generosity and gratitude are facts in human nature, 
 and a man has a perfect right to exercise these mental quali- 
 ties. Thus a man who is intolerant of a ledger which will 
 not balance to the eighth of a farthing will undertake a great 
 deal of work, or sign a check (which is equivalent to past 
 work) for a charity. Such a transaction, so long as it is vol- 
 untarily undertaken, cannot be said to be unjust. In many 
 aspects it is excellent. A man knows best what his rights 
 and duties are. But law has not left all matters to a man's 
 free will. Law has become aware of the fact that, under cer- 
 tain circumstances, a will apparently free is apt to be put 
 really in chains, and the excuse for the interference of legis^ 
 lative enactments with rights is the protection of those who 
 
448 THE LAW OF CARRIERS. 
 
 are not in a position to exercise their wills with freedom, and 
 to bring about that equilibrium between rights and duties in 
 every transaction which ought to exist, and which would exist 
 between two men in any case in which they started from 
 equality in rights and in strength with regard to exaction. 
 In every transaction both parties ought to have some advan- 
 tage. Otherwise transactions would cease. Now the object 
 of all law is, that the advantage gained by each of the parties 
 to any transaction should be as nearly of equal value as it is 
 possible it should be. This is to be brought about by an equi- 
 librium of duties and rights. And as that cannot be effected 
 by simple voluntary acts, the law has interfered to bring it 
 about. Not without much thought have the correlative rights 
 and duties of the carriers and the public been laid down and 
 established. "We have already, at some length, considered 
 the rights of the public as connected with the duties of carriers, 
 in so far as the carriage of goods is concerned. We will now 
 consider the rights of the carrier as connected with the duties 
 of the public. 
 
 Sec. 416. Carriers' Sight to retain Goods bailed to Them. 
 — Special Property. — Of course carriers have a right to re- 
 tain the possession of the goods bailed to them, otherwise 
 they would be unable to do that on account of which the goods 
 were intrusted. Indeed, possession is of the very essence of 
 the lien, 1 and cannot exist except where possession accompa- 
 nies it. 2 The necessities of law have caused this quasi-right 
 to be designated a special property, and, consequently, if the 
 carrier's possession is disturbed, or if injury is done to the 
 goods while they are still in his possession, he can maintain 
 an action by reason of his special property in the goods. 3 
 The idea connected with the phrase " special property " is, that 
 the property is to be regarded as his (the carrier's) for a spe- 
 cial purpose. In a philosophical sense, all property is only a 
 man's for one or two purposes. Absolute proprietorship is 
 impossible. The rights of property are limited in relation to 
 
 1 Jordan v. James, 5 Ohio St. 88. 8 Bac. Abr. Contract, C ; Jones on 
 
 2 M'Farland v. Wheeler, 26 Wend. Bailm. 80. 
 (N. Y.) 467. 
 
THE RIGHTS OF CARRIERS. 449 
 
 every sense, and they wear out in time. On this subject 
 Story, J., in his work upon Bailments, has well remarked : 
 " Every bailee ought to have a general right of action against 
 mere wrong-doers to the property while in his possession, 
 whether he has a special property therein or not, for (as it 
 has been well said x ) a man ought not to be charged with an 
 injury to another without being able to resort to the original 
 cause of that injury, and in amends thereof to do himself 
 right." 2 
 
 * SeC. 417. Carriers have an Insurable Interest in Goods. — 
 Carriers have also an insurable interest in the goods in their 
 keeping, and can secure an indemnity against such accidents 
 to the goods in their possession as will render them liable to 
 the consignor. 3 But they have afso an insurable interest as 
 against the assurers to the full value of the goods, and not 
 simply to the extent of their own particular interest as car- 
 riers in the goods. 4 The rule is that, where by statute, the 
 common law, or by contract, a person is liable to another for 
 an injury to or loss or destruction of property temporarily in 
 his care, he may protect himself against such contingent lia- 
 bility by insurance, as an innkeeper, 5 a lighterman, 6 railroad 
 companies, 7 carriers of every description, 8 warehousemen or 
 wharfingers, 9 or indeed any person having the care or custody 
 of goods for another for any person, who is liable for their 
 
 1 Bao. Abr. Bailments, D. See also 4 Waters v. The Monarch Insurance 
 The Propeller Commerce, 1 Black Co., 5 B. & B. 870 ; London & North- 
 (U. S.), 574; Merrick v. Brainard, 38 Western Bail. Co. o. Glyn, 1 E. & E. 
 Barb. (N. Y.) 574; Steamboat Co. v. 652. 
 
 Atkins, 22 Penn. St. 522; Dulop v. 6 Wood on Insurance, 527. 
 
 Thorne, 1 Rich. (S. C.) 213; Morgan 6 Achard v. King, Q. B. Dec. 19, 
 
 v. Cougdon, 4 N. Y. 551; Bailey v. 1874. 
 
 Shaw, 24 N. H. 297 ; White v. Vann, » Eastern R. R. Co. v. Relief Ins. 
 
 6 Humph. (Tenn.) 70 ; Little v. Bos- Co., 105 Mass. 84 ; Monadnock R. R. 
 
 sett, 34 Me. 545; Ely v. Ehle, 3 N. Y. Co. v. Manufacturers' Ins. Co., 113 
 
 506 ; Hagerstown Bank v. Adams Ex- Mass. 74. 
 
 press Co., 45 Penn. St. 419. 8 Chase v. Washington Ins. Co., 12 
 
 2 Story on Eailm. § 93 f. Barb. (N. Y.) 595 ; Schackell v. West, 
 8 Crowley v. Cohen, 3 B. & Ad. 6 Jur. n. s. 95 ; Morewood v. Pollok, 
 
 478; Wolf v. Homcastle, 1 B. & P. 1 E. & B. 743. 
 316 ; Carruthers v. Shelden, 6 Taunt. 9 Getchell v. Mtnz Ins. Co., 14 
 14. Allen (Mass.), 325. . 
 
 29 
 
450 THE LAW OP CARRIERS. 
 
 safe keeping. 1 But the important questions in connection 
 with the rights of carriers fall under two heads : 1. Lien ; and 
 2. Remuneration. It will be necessary to consider these with 
 some minuteness. First of Lien. 
 
 Sec. 418. Lien. — We have already seen that if goods are 
 offered to the carrier along with a reasonable reward for his 
 trouble and expense, he is bound to carry them. 2 That obli- 
 gation, however, does not arise if he is, from the fulness of 
 his vehicle or conveyance, unable to carry the goods. The 
 law which necessitated impossibilities would be bad ; nor does 
 it arise if the goods are not of a nature that he is in the habit 
 of conveying. It would be unfair to ask the proprietor of a 
 stage-coach to carry a cow or a hogshead of molasses. We 
 have, however, already examined this subject at some length, 
 and we know that if the obligation has arisen an action will 
 lie for the breach of this common-law duty of the carrier. 
 Frequently, however, goods are carried by carriers without 
 the reasonable reward to which they are entitled having been 
 paid. It is sometimes much more convenient that the carrier 
 should be remunerated at the end of the journey, or when the 
 goods are delivered, than at the beginning of the journey, when 
 the goods are received. And as the carrier has the goods in 
 his hand, which must almost inevitably be of more value than 
 the amount which is due to the carrier for conveying them, or 
 otherwise they would not be sent, he would in all cases be 
 sure of his remuneration if the law allowed him to retain the 
 possession of the goods at the end of the journey until he had 
 received the reasonable reward which is his due. This is 
 what the law does allow the carrier to do, and the right to do 
 so is the carrier's lien. 3 
 
 Sec. 419. Property in Goods still in the Consignee. — The 
 carrier's right of lien is, of course, only a right of possession. 
 The property in the goods is still in the consignee. In many 
 
 1 Chase v. Ins. Co., ante; Getchell v. Home, 5 Bing. 217; Batson v. 
 v. Ins. Co., ante. Donovan, 4 B. & Ad. 21, &o. 
 
 2 Jackson v. Rogers, 2 Show. 327 ; 8 Wilson v. Grand Trunk Rail. Co., 
 Lane v. Cotton, 1 Ld. Raym. 646; 56 Me. 60. 
 
 Edward v. Sherratt, 1 Bast, 604; Riley 
 
THE BIGHTS OF CARRIERS. 451 
 
 respects the right to lien is like the right to stoppage in tran- 
 situ. The remarks of Buller, J., in Lickbarrow v. Mason, 1 
 on the right of stopping goods in transitu, and on the nature 
 and principles of liens, are directly in point. " Neither of 
 them," he says, "is founded on property, but they necessa- 
 rily suppose the property to be in some other person, and not 
 in him who sets up either of these rights. 2 
 
 SEC. 420. Lien a Qualified Right. — How long he can re- 
 tain Goods. — " They are qualified rights, but in given cases 
 may be exercised over the property of another ; and it is a 
 contradiction in terms to say a man has a lien upon his own 
 goods, or a right to stop his own goods in transitu. If the 
 goods be his, he has a right to the possession of them, whether 
 they be in transitu or not, he has a right to sell or dispose of 
 them as he pleases without the option of any other person : 
 but he who has a lien only on goods has no right so to do ; he 
 can only retain them until the original price be paid, and 
 therefore, if goods are sold for 500Z., and by a change in the 
 market before they, are delivered they become next day worth 
 1,000Z., the vendor can only retain them till the 500Z. be paid, 
 unless the bargain be absolutely rescinded by the vendee's 
 refusing to pay the 500?. 
 
 SEC. 421. When Liens at Law exist, and when they termi- 
 nate. — " Liens at law exist only in cases where the party enti- 
 tled to them has the possession of the goods, and if he once 
 parts with the possession after the lien attaches, the lien is 
 gone ; 3 it is known, and unquestionable law, that if a carrier, a 
 farrier, a tailor, or an innkeeper deliver up goods, his lien is 
 gone." 
 
 SEC. 422. Two Kinds of Liens, Particular and General. 
 — Liens are of two kinds. They are either particular or 
 general. Particular liens, perhaps more frequently called 
 specific liens, attach only to specific chattels, for the unpaid 
 price or carriage, or for work done on or in connection with 
 
 1 1 Smith Lead. Cas. p. 736, 6th D. & R. 396 ; and that of Lord Ken- 
 ed. ; 2 T. B. 63. yon, in Hodgson v. Loy, 7 T. R. 445. 
 
 2 See opinion of Bayley, J., in s See Levy v. Barnard, 8 Taunt. 
 Bloxam v. Sandars, 4 B. & C. 948 ; 7 149. 
 
452 THE LAW OF CARRIERS. 
 
 them. A general lien attaches to all goods in the possession 
 of the individual in whom the right is vested, and that for 
 claims or demands which need not necessarily arise in relation 
 to the goods retained, but for general claims upon transactions 
 of a nature analogous to that which brought the specific goods 
 retained into the possession of the person exercising the right. 
 
 Sec. 423. Question as to the Expediency of a General 
 Lien. — Doubt as to the excellence and expediency of the exist- 
 ence of a specific lien in many cases has never, so far as we are 
 aware, existed, but grave doubts have been entertained as to 
 the advisability of the existence of a general lien, and it has 
 been regarded with much jealousy by courts of law. 1 " They " 
 (general liens), observed Lord Ellenborough, " are encroach- 
 ments on the common laws. 2 If they are encouraged, the 
 practice will be continually extending to other traders and 
 other matters. ... It is not for the convenience of the public 
 that these liens should be extended further than they are 
 already established at law. But if any particular inconven- 
 ience arise in the course of trade, the pauties may stipulate 
 with their customers for the introduction of such a lien into 
 their dealings." 
 
 Sec. 424. Courts discourage General Liens. — Therefore, 
 where there is no general usage affecting the custom of the 
 realm, where there is no express agreement between the par- 
 ties, and no evidence to show that they had been in the habit 
 of dealing in the same way on previous occasions, the courts, 
 in accordance with the above opinion, discourage further ex- 
 tension of such Jiens, and a jury is warranted in negativing 
 any right beyond the specific lien to which parties are entitled 
 at common law. 
 
 Sec. 425. General Usage. — Carrier's Lien. — Effect of Gen- 
 eral Notices. — The Rule applicable to Carriers. — A carrier's 
 lien, however, is a particular lien, and where he does set up 
 a claim to a general lien for his general balance, it is not 
 favored unless arising from an implied agreement to be in- 
 ferred from the general usage of trade, which must be proved 
 by clear and satisfactory instances, " sufficiently numerous and 
 
 1 See Cross on Lien, p. 14. 2 Rushforth v. Hadfield, 7 East, 229. 
 
THE RIGHTS OP CARRIERS. 453 
 
 general to warrant so extensive a conclusion affecting the 
 custom of the realm ; and a few recent instances of such usage 
 amongst the body are insufficient to establish the requisite 
 proof of it." * Where, therefore, the common carriers, who 
 carried on their trade in a particular district, proved that such 
 a general right had been exercised by them for ten or twelve, 
 and even in one case for thirty years, it was held insufficient, 
 and, the jury having upon such evidence negatived the general 
 usage, the court refused to grant a rule for a new trial. 2 It 
 would, however, be against all the policy of the law if carriers 
 were prevented from securing such a general lien by a special 
 agreement with those who trust them with goods to be con- 
 veyed. The customer, if he clearly understands the whole 
 terms of the agreement, would certainly not have entered into 
 it unless he still, granting this concession, had some advantage 
 from the particular service of the carrier. This is a reason- 
 able presumption, and upon this presumption the carrier is 
 allowed to secure such a general lien in the way mentioned. 
 Difficulty has arisen with reference to this question, as it did 
 in connection with the limitation of the common-law liability 
 of carriers, as to the effect of general notices. In one case, 
 where the defendant was a bleacher, in the county of Lanca- 
 shire, and one of a great body of persons there, who, having 
 found that losses to a considerable amount were incurred by 
 them from their not being entitled to retain goods put into 
 their hands for a general balance, came to an agreement that 
 they would not receive the goods of any person who would not 
 consent that they should be retained for any general balance 
 that might happen to be due to them. This agreement, which 
 was published and came to the plaintiff's knowledge, was held 
 to be binding upon him ; but, as Lord Kekyon remarked, it 
 was in the option of those persons who promulgated this gen- 
 eral notice to work for this or for that person if they chose, 
 
 1 Poishforth v. Hadfield, 6 East, Pickford, 3 B. & P. 44 n. See also 
 
 518; 2 Smith, 624; Whitehead; v. Leonard v. Winslow, 2 Grant's Cas. 
 
 Vaughau, 2 Smith, 523 n. ; Holder- 139 ; Baggs v. Linseed, 1 Black. 108. 
 ness v. Collinson, 7 B. & C. 212 ; 1 2 Rushforth v. Hadfield, 7 East, 
 
 Man. &B,y. 406. See also Aspinall v. 224; 3 Smith, 221. 
 
454 THE LAW OF CARRIERS. 
 
 and therefore the rule which applied to them could not apply 
 to innkeepers or carriers. With regard to the latter, he said : 
 " The case of a carrier has been mentioned, hut it is not like 
 this. They have no right to say they will not receive any 
 goods but on their own terms. I believe there is an Act of 
 Parliament x giving power to the justices at the Quarter Ses- 
 sions to regulate the price of the carriage of goods." 2 
 
 Sec. 426. Creation of General Lien by Notice, and by Con- 
 tract. — Knowledge of Party. — It has been said that there is 
 an implication in the case of Rushforth v. Hadfield, 3 that the 
 common carrier can create a general lien by means of notice ; 4 
 and the words of Lord Bllenborough would seem to bear out 
 this assertion; while Gorse, J., says: " I take it to be sound 
 law that no such lien can exist except by the contract of the 
 parties expressed or implied." Lord Ellenborotjgh seemed 
 to think that the knowledge of the party who dealt with the 
 carrier of his intention to create such a lien would warrant the 
 jury in finding that a usage of an extended or general lien ex- 
 isted. But still the words are far from definite, and another 
 construction is not by any means impossible. 
 
 SEC. 427. Proposed Restriction on this Right. — From the 
 way in which these kinds of lien were spoken of in that case, 
 it seems to the writer of this, that it would be well to restrict 
 the effect of notices with regard to them, as the law has already 
 restricted their effect with regard to the limitation of the 
 carriers' liability. In many cases the detention of goods would 
 be a matter of serious importance to a consignee ; and as 
 there was always difficulty in bringing home the knowledge of 
 the notice with regard to limitation of liability to the person 
 sending the goods, the same difficulty would arise in these 
 cases and lead to' needless and unnecessary litigation. The 
 circumstances of the case of Kirkman v. Shawcross, ante, 
 were, as the learned judge remarked, different from those in 
 which a common carrier attempts to create a general lien by 
 means of a notice. 
 
 1 Fide 3 W. & M. c. 12 ; and 21 8 7 East, 224. 
 
 Geo. II. c. 28. See also Jackson v. 4 See also, per Bayley, J., in Wright 
 Rogers, 2 Show. 327. v. Snell, 5 B. & Aid. 353. 
 
 2 Kirkman v. Shawcross, 6 T. R. 14. 
 
THE EIGHTS OP CAEEIEES. 455 
 
 SEC. 428. Distinction between Duties. — Where the law 
 imposes no duty upon a man to deal with everybody who 
 chooses to tender him remuneration, and he may deal with 
 whom he pleases, it is incumbent upon each man who wishes 
 to enter into business relations with him to find out the mode 
 in which he is in the habit of dealing. But where the law im- 
 poses a duty upon a man to deal with all, and to deal in 
 a certain way, it is the duty of the person so bound to force 
 any difference in his method of dealing upon the notice of 
 those who would be his customers. 
 
 Sec. 429. Restriction of the Right to create Liens. — As 
 that is the case, and as the whole of the principle of general 
 liens is an encroachment upon the common law, 1 it seems to 
 us well that the right to create such liens should be restricted, 
 and that the doctrine as to the carrier's right to create a lien 
 for a general balance of accounts should stand upon the same 
 footing as the doctrine as to the carrier's right to limit his 
 common-law liability. 2 Such a parallelism would be according 
 to the spirit of the policy of law. Such an assimilation of 
 branches of law would be an exegesis of both. 
 
 Sec. 430. Right of Carrier to retain Goods does not affect 
 Consignor's Right to stop in Transitu. — In the case of Wright 
 v. Snell, 3 a carrier had given notice that all goods would be 
 subject to lien, not only for the freight of the particular goods, 
 but also for any general balance due from their respective 
 owners. Goods having been sent by the carrier, addressed to 
 the order of B. Robinson, who was a mill factor, it was held 
 that the carrier had not, as against the real owner, any lien 
 for the balance due from the factor, B. Robinson. 4 In the 
 
 1 Bock v. Gorrissen, 30 L. J. 42 Ch° and included the goods, not only of 
 
 2 Ante, p. 252. the respective owners, but of every 
 8 5 B. & Aid. 350. The case of person to whomsoever addressed ; and 
 
 George v. Claggett, 7 T. B.. 359, differs whether, if that had been so, the ear- 
 materially from that quoted above. rier would not have been entitled to a 
 4 Mb. Cross, in his work on Lien general right of lien against all parties, 
 (pp. 283, 284), has stated that doubts He goes on to remark : " "With a view 
 have been entertained how far the de- to enable such an enlargement of 
 cision in the case of Wright v. Snell power, Ma. Chitty, in his Practice, 
 might have been affected had the notice of the Law (vol. i. p. 493), has sug- 
 been more comprehensive in its terms, gested the expediency of introducing 
 
456 
 
 THE LAW OP CARRIERS. 
 
 case of Oppenheim v. Russell, 1 it was expressly decided that a 
 usage for carriers to retain goods as a lien for a general bal- 
 ance of account between them and the consignees does not 
 affect the right of the consignor to stop the goods in transitu. 
 
 SEC. 431. Carrier's Lien a. Specific Lien at Common Law. — 
 Applies to Passenger's Luggage. — At common law, then, a 
 carrier has a specific lien, 2 and is thereby authorized to retain 
 the goods until the price of the carriage, due upon those par- 
 ticular goods, is paid. 3 This rule is, as we should have ex- 
 
 words to the effect ' that the goods of 
 all persons dealing with the party in 
 his trade, and whether belonging to 
 the customer or to any other person 
 or persons, or in which he is in any 
 respect interested, whether for a lien or 
 otherwise, or which may be in the 
 possession of the advertiser, or whether 
 going from or to his manufactory or 
 premises, must be understood to be, 
 and shall be, subject to a general lien 
 for all moneys due to the advertiser, 
 as well from the customer, as from 
 any person or persons entitled to, or 
 interested in such goods.' Yet, to 
 grant the validity of so extensive a 
 claim would be to allow, by special 
 agreement, a power against third par- 
 ties, not recognized by the courts, even 
 though sanctioned by immemorial cus- 
 tom (Leuckhart v. Cooper, 3 Bing. 
 N. C. 90; 2 Hodges, 150); for, to 
 give validity and effect to usage, it has 
 been decided that it must be reasonable, 
 as well as ancient ; and it can scarcely 
 be contended that the detention of the 
 goods of the consignor for the debt of 
 the consignee is either just or reason- 
 able (Leuckhart v. Cooper, 3 Bing. 
 N. C. 90). The principle of such de- 
 cision should, therefore, and probably 
 would regulate the judgment, were the 
 question suggested to come before the 
 court. The precautionary measures 
 proposed in the form of notice may, 
 at least, be pursued mqjori cautela ; 
 but to permit the annexation of terms 
 
 so inconsistent with the general prin- 
 ciple, that carriers are compellable to 
 carry the goods of all customers for 
 reasonable reward, would at once be 
 an abrogation of the rule, and a per- 
 missive power vested in carriers, which 
 immemorial custom has not been able 
 to establish in others. 'I should 
 doubt,' observed Best, J. (Wright v. 
 Snell, 5 B. & Aid. 355), 'if any form 
 of words would be able to establish a 
 liability of such kind. It is, however, 
 sufficient, in the case before the court, 
 to say that the plaintiff is the owner 
 of the goods, and, there being nothing 
 due from him to the carrier, the modes 
 of the notice do not impose any liability 
 upon him. If any question should 
 arise falling within the terms of the 
 notice last given (see ante, p. 336), it 
 would be very Jit to consider whether a 
 carrier can make so unjust a regulation 
 as is Ihere attempted^ 
 
 1 3 Bos. & P. 43. 
 
 2 Butler v. Woolcott, 2 N. R. 64. 
 . 8 Skinner v. Upshaw, 2 Ld. Raym. 
 752; Bushforth a. Hadfield, 6 Bast, 
 518 ; 7 East, 224 ; Gisbourn v. Hurst, 
 1 Salk. 249 ; Middleton v. Fowler, 1 
 Salk. 282. A postmaster-general is 
 not, as we have seen (««fe,pp. 74, 143; 
 Lane v. Cotton, 1 Ld. Baym. 646 ; 
 Whitfield v. Lord Le Despencer, Cowp. 
 744), a common carrier, within the 
 custom of the realm; and, conse- 
 quently, the above rule is not appli- 
 cable to him. 
 
THE RIGHTS OP CARRIERS. 
 
 457 
 
 pected from what we have already ascertained with regard to 
 the law as it bears upon the luggage of passengers, applicable 
 to such goods as an individual may take with him, who is 
 being carried by means of a public conveyance. Thus it was 
 decided that where a person goes to a coach-office, and directs 
 that a place be booked for him by a particular coach, and in 
 conformity with his request that is done, if he has left his 
 portmanteau (as was the fact in the case under consideration), 
 the coach proprietor has a lien on the portmanteau for some- 
 thing, but not for the full amount of the coach fare ; if, on the 
 other hand, the portmanteau has been left during the time 
 that the proprietor has been making inquiries as to whether 
 there is an earlier coach, the carrier will have no lien at all. 1 
 
 1 Higgins v. Bretherton, 5 C. & P. 2. 
 A common carrier has a lien upon 
 goods transported by him, for the 
 freight, and neither the consignee, 
 owner, nor any officer of the law, can 
 take them from him until such freight 
 is paid. Rucker v. Donovan, 18 Kan. 
 231 ; Langworthy v. New York & 
 Hudson River R. R. Co., 2 E. D. S. 
 (N. Y. C. P.) 195 ; Hunt •>. Haskell, 
 24 Me. 339 ; Sullivan v. Park, 33 Me. 
 438 ; Goodman v. Stewart, Wright 
 (Ohio), 216 ; Bowman v. Hilton, 11 
 Ohio, 303 ; Clarkson v. Edes, 4 Cow. 
 (N. Y.) 470 ; Barker v. Havens, 17 
 Johns. (N. Y.) 234. Nor can the own- 
 er who stops the goods in, transitu, on 
 account of the insolvency of the con- 
 signee who purchased them of him on 
 credit, take the goods until he has paid 
 the carrier his freight, or tendered it 
 to him. Chandler v. Belden, 18 Johns. 
 (N. Y.) 157 ; Raymond v. Tyson, 17 
 How. (U. S.) 53; The Eddy, 5 Wall. 
 (U. S.) 481 ; The Schooner Volunteer, 
 ,1 Sum. (U. S.) 551. Upon the gen- 
 eral proposition, see Cowing v. Snow, 
 11 Mass. 415 ; Lewis v. Hancock, 11 
 Mass. 72 ; Lane v. Penniman, 4 Mass. 
 92. But this lien may be waived by 
 the carrier, and, if he delivers the 
 
 freight to the owner without insisting 
 upon prepayment of the freight, or 
 expressly retaining his lien, he is treat- 
 ed as having waived it. But there 
 must be a complete and unconditional 
 delivery. So long as the goods re- 
 main upon his premises, or any part 
 of them, although the owner may have 
 set them apart and put them by them- 
 selves with the consent of the carrier, 
 or even sold and taken away a part of 
 them, the lien remains. Thus, in Lane 
 v. Old Colony R. R. Co., 14 Gray 
 (Mass.) 143, several cargoes of coal, 
 delivered by 1 their owner upon the 
 wharf of a railroad company, were 
 successively carried over their railroad, 
 and at the place of destination unladen, 
 assorted, and deposited by the owner's 
 servants in bins on the land belonging 
 to the railroad, adjoining the owner's 
 land, and portions carried away and 
 delivered by the owner to purchasers 
 from time to time, until he became in- 
 solvent, when the company forbid the 
 taking away of any more coal until 
 the unpaid freight and wharfage had 
 been paid. The court held that the 
 company had a lieu upon the coal 
 which remained upon their land for 
 the unpaid wharfage and freight of 
 
458 
 
 THE LAW OP CARRIERS. 
 
 SEC. 432. Where Consignor is Wrongful Owner. — The right 
 of the carrier to retain the goods for the price of their convey- 
 
 all the cargoes. This is in accord 
 with the generally accepted doctrine, 
 that the hen of the carrier is not lost 
 as to goods earned by him so long as 
 any of the goods remain in his pos- 
 session, although he has delivered a 
 part, as to the part still retained by 
 him. Of course, as to the part actu- 
 ally delivered, his lien is gone, but he 
 may enforce his lien for the whole 
 freight upon the part retained by him. 
 Puller v. Bradley, 25 Penn. St. 120 ; 
 Briggs v. Martin, 13 B. Mon. (Ky.) 
 239. But the owner or consignee 
 cannot insist upon an apportionment 
 of the freight, and its delivery in par- 
 cels upon the payment of the freight 
 upon each parcel. The carrier may 
 insist that the whole freight shall be 
 paid before any part of the goods are 
 taken. Brittain v. Barnaby, 21 How. 
 (U. S.) 527 ; and, according to the 
 case last cited, neither can the carrier 
 insist upon a delivery by parcels, and 
 the payment of the freight upon each 
 parcel as delivered, although a con- 
 trary doctrine has been held in Eng- 
 land. Paynter v. James, L. B.. 2 C. 
 P. 348. If goods are obtained from 
 a carrier without payment of the 
 freight, by trick or fraud, the lien is 
 not lost, as the carrier's right to the 
 possession still remains, and he may 
 replevy them from the hands of the 
 consignee. Thus, in Bigelow v. Hea- 
 ton, 6 Hill (N. Y.), 43, a carrier de- 
 livered goods to a consignee under a 
 fraudulent and false promise that he 
 would pay the freight immediately on 
 receipt. He failed to do so, and it 
 was held that the carrier had not lost 
 his lien for freight, but might dis- 
 affirm and sue the consignee in re- 
 plevin for the goods. Hays v. Riddle, 
 1 Sandf. (N. Y. Superior Ct.) 248. 
 
 This lien being a personal right, and 
 one which the carrier alone can insist 
 upon or enforce, Ames v. Palmer, 42 
 Me. 197; Everett v. Saltus, 15 Wend. 
 (N. Y.) 474; Alden v. Carver, 13 
 Iowa, 253, it follows that he may 
 waive the right, and such waiver may 
 be express or implied ; and where the 
 carrier enters into a contract for the 
 transportation of goods by which a 
 credit for freight is given which ex- 
 tends beyond the time when the prop- 
 erty transported is to be delivered and 
 placed out of the carrier's control, a 
 waiver of the lien will be inferred, 
 because its existence is inconsistent 
 with the contract. Thus in Pinney v. 
 Wells, 10 Conn. 104, a manufacturer, 
 and B, a common carrier, on the 1st 
 of May, 1833, entered into a contract, 
 wherein it was stipulated that B should 
 transport 1,500 tons of anthracite coal, 
 belonging to A, from Philadelphia, 
 and deliver it at Collinsville in this 
 State, between the date of the con- 
 tract and the 1st of March, 1834; 
 that he should deliver some of the coal 
 at Collinsville by the 15th of June, 
 1833, and continue to deliver it there 
 so fast that A should not have less 
 than 50 tons on hand at any time be- 
 tween the 1st of June and the comple- 
 tion of the contract; that the coal 
 delivered at Colliusville should be 
 shovelled, by B's men, into the coal- 
 house of A; that in case of any 
 breach of or detention on the canal, 
 B should get the coal along as soon as 
 possible after the breach should be re- 
 paired ; and in case of such a breach 
 or continued breaches on the canal as 
 should utterly prevent B from getting 
 on the coal, he should be excused from 
 getting it on that season, but should 
 do it the ensuing season, unless A 
 
THE EIGHTS OF CARRIERS. 
 
 459 
 
 ance is the same whether the consignor was a wrongful owner 
 or not ; and he can retain them until such time as his reason- 
 
 should choose to get it round by Con- 
 necticut River, -which he. should have 
 the privilege of doing ; that A should 
 pay B for the transportation of the 
 coal from Philadelphia to Collinsville, 
 $4.37£ per ton ; that at the settlement, 
 an interest computation should be 
 made, in which the freight to Avon 
 [a few miles short of Collinsville], and 
 from that place to Collinsville, should 
 be considered as cash, whenever 100 
 tons should arrive at those places re- 
 spectively ; but that A should have the 
 privilege of giving his notes, payable 
 at the Hartford Bank, instead of pay- 
 ing the cash ; all notes so given previ- 
 ous to the 1st of August, 1833, to be 
 payable in four months, and all given 
 after that time to be payable in three 
 months, from the dates thereof. B im- 
 mediately commenced the transporta- 
 tion of the coal under the contract, and 
 before the 10th of September, 1833, 
 had transported from Philadelphia to 
 New Haven, 1,276 tons, of which lie 
 had transported 753 tons from New 
 Haven to Avon, and 653 tons from 
 Avon to Collinsville, when A failed, 
 and made a general assignment of his 
 property, including the coal at New 
 Haven and Avon, in a course of trans- 
 portation, in the possession of B ; and 
 A, at different times between the 28th 
 of June and the 9th of September, 1833, 
 gave B his notes pursuant to the con- 
 tract, to the amount of $3,450, which 
 were outstanding at the time of A's 
 failure, and remain unpaid : it was 
 held that this was substantially a con- 
 tract upon which B gave A a credit, and 
 that B thereby waived the benefit of 
 a lien on the coal in his possession, 
 either for the transportation of the 
 whole, or of the parcels not delivered. 
 See also The Bird of Paradise, 5 Wall. 
 
 (U. S.) 545 ; Pickman v. Wells, 6 
 Pick. (Mass.) 248 ; Tamvaco v. Simp- 
 son, 19 C. B. n. s. 453 ; Raymond v. 
 Tyson, 17 How. (U. S.) 53 ; Schooner 
 Volunteer, 1 Sum. (U. S.) 551; 
 Chandler v. Belden, 18 Johns. (N. Y.) 
 157. But it will be seen that in all 
 the cases no waiver will be inferred 
 unless the existence of the lien is in- 
 consistent with the contract, which is 
 never the case unless by the terms of 
 the contract it is evident that delivery 
 is to precede the payment of the 
 freight, Howard v. Macondray, 7 
 Gray (Mass.), 516 ; Clarkson v. Edes, 
 4 Cow. (N. Y.) 470; Drinkwater v. 
 Brig Spartan, 1 Ware (U. S. C. C), 
 145, or that the freighter is to give 
 security for the freight money, or do 
 some other act, which he fails to do, 
 in which case the lien remains, because 
 the condition precedent to its relin- 
 quishment has not been performed. 
 Tate v. Meek, 8 Taunt. 280. . Nor will 
 the lien be treated as lost, although a 
 credit is agreed on, unless the con- 
 tract clearly shows that the freight 
 was to be delivered before the term of 
 credit expires. Thus, if it is agreed 
 that the freight shall be paid within 
 five, or auy other number of days after 
 the discharge of the cargo, the contract 
 will not be construed as requiring 
 a delivery of the freight within that 
 time, so as to defeat the carrier's lien. 
 Logs of Mahogany, 2 Sum. (U. S.) 
 589 ; The Kimball, 3 Wall. (U. S.) 
 37. The carrier's lien extends only 
 to his charges for freight. Steamboat 
 Virginia v. Knaft, 25 Mo. 76 ; and, 
 where they came to him over connect- 
 ing lines, such charge for back freight 
 as he has had to pay thereon. Briggs 
 v. Boston, &c. It. R. Co., 6 Allen 
 . (Mass.), 246 ; Galena, &c. R. E. Co. 
 
460 
 
 THE LAW 'OF CARRIERS. 
 
 able demand is paid, even where the actual proprietor claims 
 his own. 1 This doctrine is founded upon the reasonableness 
 
 v. Rae, 18 111. 488 ; White v. Vann, 
 6 Humph. (Tenn.) 70; Wells v. 
 Thomas, 27 Mo. 17 ; Travis v. Thomp- 
 son, 37 Barb. (N. Y.) 236. But a 
 lieu for back freight which lie has paid 
 to preceding carriers, who were paid 
 in advance, does not exist, Norde- 
 meyer v. Loescher, 1 Hilt. (N. Y.) 
 499, unless the consignee or owner 
 has been guilty of negligence or bad 
 faith in respect thereto ; and it seems 
 that if the bill of lading contains no 
 mention of such part-payment, the 
 carrier may hold the goods for the 
 back freight as well as his own. 
 Travis v Thompson, ante. The carrier 
 has no lien for charges except such as ai-e 
 clearly connected with the transporta- 
 tion of the goods, and are within the 
 contemplation of the parties. Crome- 
 lin v. R. R. Co., 4 Keyes (N. Y.), 90 ; 
 Faith v. East India Co., 4 B. & Aid. 
 630. Thus, where a carrier, by rail or 
 water, whose duty is ended by the ar- 
 rival of the goods at his wharf or 
 storehouse, sends the goods to the 
 consignee at his place of business, he 
 has no lien for the additional expense 
 of transportation, unless he was author- 
 ized to send the goods in that way, 
 either by the consignor or consignee. 
 Richardson v. Rich, 104 Mass. 156. 
 It seems that a carrier by rail has a 
 right to a lien as warehouseman upon 
 freight, for the detention of his cars 
 which the consignee is bound to un- 
 
 load, if he gives the consignee explicit 
 notice that he shall charge a certain 
 sum per day for each car which is not 
 unloaded within a certain time. Mil- 
 ler v. Mansfield, 112 Mass. 260. In 
 England it is held that the carrier, 
 being obliged to receive all goods of- 
 fered to him for carriage, has a lien 
 upon them against the real owner, 
 whether they were intrusted to him 
 by a wrong-doer or not, and even 
 though they were stolen, and intrusted 
 to him by the thief. Exeter's Carrier 
 Case, cited 2 Ld. Raym. 867. But in 
 this country the current of authority 
 is the other way, and the carrier is 
 held not to acquire a lien upon the 
 goods against the real owner, where he 
 received them from a wrong-doer, how- 
 ever innocently he may have received 
 them. Robinson v. Baker, 5 Cush. 
 (Mass.) 137 ; Stevens v. Boston, &c. 
 R. R. Co., S Gray (Mass.), 262; 
 Clark v. Lowell, &c. R. R. Co., 9 
 Gray (Mass.), 231 ; Gilson v. Gwinn, 
 102 Mass. 126 ; Fitch v. Newberry, 1 
 Mich. 1 ; Collman v. Collins, 2 Hall 
 (N. Y.), 369 ; Buskirk u. Purrinton, 
 2 Hall (N. Y.), 561; Travis v. Thomp- 
 son, ante. The carrier's lien only 
 gives him the right to hold the goods 
 for the payment of the freight, and 
 gives him no right to use or sell them. 
 Chandler v. Belden, ante; Fox v. 
 McGregor, 11 Barb. (N. Y.) 41; 
 Briggs v. Boston & Lowell R. R. Co., 
 
 1 Yorke v. Greenaugh, 2 Ld. Raym. 
 867 ; Butler v. Woolcott, 2 N. R. 64. 
 But see Turrell v. Crawley, 13 Q. B. 
 197; Johnson v. Hill, 3 Stark, 172; 
 Binns v. Pigot, 9 C. & P. 208. This 
 doctrine has been disputed in this 
 country. Fitch v. Newberry, 1 Mich. 
 1; Robinson v. Baker, 5 Cush. (Mass.) 
 
 137; Everett v. Saltus, 15 Wend. 
 (N. Y.) 474; Clark v. Lowell, &c. 
 R. R. Co., 75 Mass. 231 ; Stevens v. 
 Boston, &c. R. R. Co., 8 Gray (Mass.), 
 262; Buskirk o. Puriugton, 2 Hall 
 (N. Y), 561; Collman v. Collins, 2 
 Hall (N. Y.), 569. But see King v. 
 Richards, 6 Whart. (Penn.) 418. 
 
THE RIGHTS OF CARRIERS. 461 
 
 that those who are bound by law to receive should be paid for 
 carrying. But while the doctrine seems to be well settled in 
 England, as stated in the text, yet a contrary rule seems to 
 prevail in this country, and the carrier is held not to be en- 
 titled to a lien for freight where the consignor is a wrong-doer 
 as to the goods. 1 From the very nature of this right, as it has 
 been explained above, it follows that this right of retention, 
 which the carrier has at common law, only extends to the 
 amount which is owing for the carriage of the goods. He 
 cannot set up this right in order to recover incidental outlays, 
 such as for booking or warehouse-room. 2 Thus, where a rail- 
 way company were carriers of goods on their line of railway 
 from their B. station, having also an establishment at D., where 
 they made and repaired their own locomotive engines, and also 
 occasionally repaired those belonging to colliery proprietors, 
 whose works were connected with the main line of the rail- 
 way, a colliery company carried on business as coal merchants 
 and coal proprietors about two miles from the B. station, at 
 which latter their works were connected, by a tramway of 
 
 ante; Grace v. Palmer, 8 Wheat, who, having no legal claim on the 
 
 (U. S.) 605 ; Rankin v. Packet Co., goods for anything besides the freight, 
 
 9 Heisk. (Tenn.) 564 ; Hunt n. Has- refuse to deliver them unless a further 
 
 kell, 24 Me. 339. He must enforce sum is first paid ; the consignee, in 
 
 his hen by action for the freight and such a case, is not bound to make any 
 
 a levy upon the goods, unless the tender to those in possession of the 
 
 statute has given him another remedy, goods, and their refusal to deliver the 
 
 1 Travis v. Thompson, 37 Barb. (TM. goods is evidence of a conversion. 
 T.) 236 ; Gilson ». Gwinn, 107 Mass. Adams v. Clark, 9 Cush. (Mass.) 215. 
 126 ; Clark v. Boston, &c. R. R. Co., A carrier who has received goods from 
 9 Gray (Mass.), 231. But in King v. a -wharfinger, with whom they have 
 Richards, ante, it seems to be con- been deposited by their owner without 
 ceded that a lien does exist under authority to forward them, has no lien 
 such circumstances, and it would cer- on them for freight against the owner, 
 tainly seem that the English rule lias Clark v. Lowell, &c. R. R. Co., 9 
 more foundation in reason than ours. Gray (Mass.), 231. If the freight is 
 
 2 Lambert v, Robinson, 1 Esp. 119. paid in advance, a carrierwho receives 
 See Rice v. Humphrey, M'Clel. & Y. it from another carrier has no lien 
 173. The rule may be said to be that therefor. Nordemeyer v. Loescher, 1 
 a consignee of goods, who is ready to Hilt. (N. Y. C. P.) 499, as the last 
 pay freight on having the goods deliv- carrier, in such cases, may be said to 
 ered to him, may maintain trover be the agent of the first. Travis v. 
 against the carriers or their agents, Thompson, 37 Barb. (N. Y.) 237. 
 
462 THE LAW OP CARRIERS. 
 
 their own, with the main line of the railway company, and in 
 June, 1864, the railway company opened a monthly credit 
 account with the colliery company for the carriage of their 
 goods by the railway from the B. station, upon* written con- 
 ditions, the 6th of which provided that if the monthly accounts 
 were not paid in accordance with the specified conditions, the 
 railway company was " to have the right, at any time, to de- 
 tain any goods or wagons in their possession, by way of lien, 
 to secure the general balance owing to them." In July, 1864, 
 a locomotive engine of the colliery company, used by them for 
 taking coals and goods from their works to the lines at B., 
 being out of repair, it was sent by agreement to the railway 
 company's establishment, at D., to be repaired by them, and 
 was drawn by the railway company from B. to D. for that 
 purpose, attached to one of their ordinary luggage trains, and 
 a sum of 21. 18s. for such haulage was charged by the railway 
 company to the colliery company in the monthly carriage 
 account for July, and was not disputed by the latter before 
 their bankruptcy. Upon the subsequent adjudication of the 
 colliery company as bankrupts, the railway company claimed 
 to hold the locomotive engine, which was then in their estab- 
 lishment at D., undergoing repairs, as a security, not only 
 for the cost of such repairs and the .charge for haulage, but 
 also for a general balance due to them for the carriage of 
 coals for the colliery company. It was held in this case that 
 the terms of the 6th condition of the agreement between the 
 railway company and the colliery company, which was in- 
 tended merely to enlarge the rights of the railway company as 
 carriers, and to give them as such a right of lien beyond what 
 they would have at common law, applied only to coals and 
 such like goods to be carried in the ordinary way, and not to 
 the engine in question, which was delivered to the railway 
 company, not under any contract to carry, but under an agree- 
 ment to repair, to which the charge of haulage was incidental, 
 and, therefore, that the right of general lien, claimed by the 
 railway company, did not attach ; 1 and by a recent case the 
 law upon this subject has been made still more definite. In 
 
 1 Kimiear u. Midland Rail. Co., 19 L. T. ». s. 307 Exch. 
 
THE RIGHTS OP CAEEIEES. 
 
 463 
 
 that case if was decided that the 8 & 9 Vict. c. 20, § 97, gives 
 no lien upon goods for tolls or charges due to the company for 
 other goods previously conveyed by them as carriers, but only 
 for tolls previously due for the use of the line by persons con- 
 veying goods in their own carriages. 1 
 
 Sec. 433. Custom of Trade in Case of Wharfinger and 
 Warehouseman. — In the case of warehouseman and wharf- 
 inger, the custom of their trade gives a lien on goods in their 
 possession for a general balance between them and the owners 
 of the goods ; 2 but where the carrier wishes to have a lien for 
 such work, and such storage, he must expressly contract for it. 
 
 1 Wallis v. London & South-West- 
 ern Rail. Co., 5 L. R. Exeh. 62 ; 39 
 L. J. Exeh. 57; 18 W. R. 347; 21 
 L. T. n. s. 675. 
 
 8 Vict. c. 20, § 92. "It shall not be 
 lawful for the company, at any time, 
 to demand or take a greater amount 
 of toll, or make any greater charge for 
 the carriage of passengers or goods, 
 than they are by this and the special 
 act authorized to demand; and upon 
 payment of the tolls, from time to time 
 demandable, all companies and persons 
 shall be entitled to use the railway 
 with engines and carriages properly 
 constructed," &c. 
 
 Sections 93 and 94 provide for the 
 publication on boards of a list of all 
 the tolls authorized by the special act 
 to be taken, and for maintaining mile- 
 stones along the line. 
 
 Sec. 95. "No tolls shall be de- 
 manded or taken by the company for 
 the use of the railway during any time 
 at which the toll boards are not ex- 
 hibited. 
 
 Sec. 96. "The tolls are to be paid 
 upon or near to tbe railway as the 
 company shall, by notice to be annexed 
 to the lists of tolls, appoint. 
 
 Sec. 97. "If, on demand, any person 
 fail to pay the tolls due in respect of 
 any carriage or goods, it shall be law- 
 ful 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 company, to detain and sell any 
 other carriages or goods within such 
 premises belonging to the party liable 
 to pay such tolls, and out of the money 
 arising from such sale to retain the 
 toll payable as aforesaid, and all charges 
 and expenses of such detention and 
 sale ... or it shall be lawful for the 
 company to recover ^iy such tolls by. 
 action at law." 
 
 Section 98 provides that an account 
 in writing of the goods transmitted be 
 given. 
 
 Section 3 (interpretation clause). 
 "The word ' toll' shall include any rate, 
 or charge, or other payment payable 
 under the special act for any passen- 
 ger, animal, carriage, goods, merchan- 
 dise, articles, matters, or things con- 
 veyed on the railway." 
 
 2 Naylor v. Mangles, 1 Esp. N. P. 
 Cas. 109 ; Spears v. Hartley, 3 Esp. 
 81; Bock v. Gorrissen, 30 L. J. 39 
 Ch. But, in order to be entitled to 
 a lien, the person must be a warehouse- 
 man; and a person merely receiving 
 the goods of another for storage is not 
 a warehouseman, and consequently not 
 entitled to a lien for the storage. 
 Alt v. Weidenberg,,6 Bosw. (N. Y.) 
 176. 
 
464 THE LAW OP CARRIERS. 
 
 Special usage is not only to be effective in protecting the car- 
 rier by extension of the privilege of lien ; it will also limit 
 that right under circumstances which would be held to justify 
 the inference of the existence of such a usage. Thus, if by 
 the custom of a particular trade a carrier is to be paid for the 
 carriage of the goods by the consignor, he has no right to 
 detain them against the consignee, who has paid the price for 
 them, on account of the carriage of other goods of a similar 
 sort sent by the consignor. 1 
 
 Sec. 434. Limitation or Cessor of Right of Lien by Con- 
 tract. — It need scarcely be added that a special contract can 
 limit or do away with the lien. If the carrier parts with his 
 rights he has doubtless some reason for doing so. Many men 
 prefer the chance of much to the certainty of little. But as 
 the carrier has the right of lien at common law, where the 
 special agreement between the customer and carrier as to the 
 terms on which the goods are to be carried does not expressly 
 destroy the carrier's right to lien by its inconsistency there- 
 with, that right will continue. 
 
 Sec. 435. Where Charges not to be paid until Future Date. 
 — Receipt of Goods by Mistake. — Where, however, the 
 charges are not to be paid until a future date, that negatives 
 the possibility of the continuance of the right of lien in the 
 meantime. 2 One other case remains to be mentioned, and 
 that is the case of delivery of goods to a carrier who receives 
 them by mistake, or the delivery to a carrier who is not bound 
 to receive and carry such goods. Here it is evident that even 
 after such delivery he will be bound to redeliver them to the 
 owner if he tenders payment of all reasonable charges, but 
 until the tender, or payment, of such charges the carrier will 
 have a lien on the goods. 3 
 
 SEC. 436. Over what Goods Lien extends. — The contract 
 must be the guide in saying over what goods a lien extends. 
 If there is a separate contract for the carriage of each of a 
 number of parcels, a separate lien will attach to each, and such 
 
 1 Butler v. Woolcott, 2 N. R. 64. 8 Eooke v. Midland Rail. Co., 16 
 
 a Crawshay v. Homfray, 4 B. & Jur. 1069. 
 Aid. 50. 
 
THE RIGHTS OP CARRIERS. 465 
 
 lien will only be in respect of charges due on the carriage of 
 that one package. 
 
 SEC. 437. Where Contracta are not Separate. — Where, 
 however, no such separate contract exists in respect of each 
 package, but the goods conveyed are delivered to the carrier 
 in separate parcels, he will doubtless have a lien on the whole 
 of the packages so delivered, which will attach in respect to 
 any charges incurred in the carriage of the whole or any one 
 or more of the parcels. 1 
 
 SEC. 438. Lien lost with Loss of Possession. — We have 
 already seen that a right of lien is limited in its duration to 
 the time that the goods are in the possession of the carrier, 
 and it will be understood that, that being so, if he has once 
 parted with the possession, or otherwise waived his lien, it 
 will not be revived by a resumption of the possession, nor does 
 it give him any right to stop the goods in transitu. 2 
 
 SEC. 439. Lien of Ship-owner. — Whether Ship Chartered or 
 General Ship. — Resumption of Possession. — Why a Question 
 of Importance in this Connection. — It is almost unnecessary 
 to state, what has been for the most part assumed throughout, 
 that as the duties of the owners and masters of ships are 
 almost identical with those of common carriers by land, their 
 rights will be identical. 3 We have seen that the owners or 
 masters of general 4 ships and vessels carrying goods for hire 
 on the high seas, or on navigable rivers and canals, as hoy- 
 men and lightermen, are common carriers by the custom of the 
 realm. 5 They are, therefore, entitled by the common law to a 
 particular lien of the same nature as that described above, 
 which attaches to goods delivered to them in the course of 
 their trade for the price of their carriage. 6 This right has 
 
 1 Chase v. Westmore, 5 M. & S. 918; Jones on Bailm. 106; Abbott, 
 180 ; Stevenson v. Blakelock, 1 M. & p. 249. 
 
 S. 535. 4 As to the meaning of the term 
 
 2 Sweet v. Pym, 1 East, 4, per Bul- " general ship," see Abbott on Ship. 
 ler, J.; Lickbarrow u. Mason, supra; pp. 112, 215; Kirchner v. Venus, 12 
 Coombs ». Bristol & Exeter Bail. Co., Moore, P. C. C. 361 ; 7 W. R. 455. 
 27 L. J. 401 Exch. ; Artaza v. Small- 6 Ante, p. 74. 
 
 piece, 1 Esp. 23. « Kirchner v. Venus, 12 Moore, P. 
 
 8 Coggs v. Barnard, 2 Ld. Baym. C. C. 361. 
 
 30 
 
466 THE LAW OP CARRIERS. 
 
 been recognized in almost every other country in Europe. 1 
 And the same principle is regulative whether the ship be a 
 chartered or a general ship. In neither case is the master 
 bound to part with the possession of any part of his cargo 
 until the freight and other charges due in respect of such part 
 be paid. 2 We have just seen that no resumption of possession, 
 after it has once been parted with, will make the right of lien 
 reattach, and the question naturally arises as to what consti- 
 tutes such a parting with possession as will terminate the car- 
 rier's lien. 3 It is really a question of more importance in 
 relation to carriers by water than with regard to carriers by 
 land, or may be so, for cargoes generally take a considerable 
 time to disembark and deliver, and the difficulty is to say 
 whether a delivery of a part will terminate the lien as to the 
 part which is still actually in the possession of the master of 
 the ship. In one case the master of a ship was allowed a 
 lien on a part of a cargo which had been removed into a 
 lighter sent by the vendee alongside of the ship, but which the 
 captain afterwards fastened to the ship's side to prevent its 
 final removal. 4 Thus any part of the merchandise may be 
 detained for the freight of all that is conveyed to the same 
 person. 
 
 Sec. 440. Express stipulations. — Where, however, the time 
 and manner of payment of the freight are agreed upon and 
 regulated by express stipulations in the charter-party, and 
 
 1 Abbott on Ship., 11th ed., p. upon freight for damage by collision, 
 237. it has been held that part of the cargo 
 
 2 Artaza v. Smallpiece, 1 Esp. 23 ; may be detained for the whole freight, 
 Anon. Cases, 12 Mod. 447, 511. See the other part having been given up 
 Moeller v. Young, 5 E. & B. 755 ; 24 to the consignee before the arrest of 
 L. J. Q. B. 257, Exch. Ch. the vessel and her cargo. The Roe- 
 
 8 Baggs v. Linseed, 1 Black (U.S.), cliffe, L. 11. 2 Adm. & Ecc. 363; 3 
 
 108 ; Sears v. Allen, 212 ; One hun- Mar. Law Cas. o. s. 243. But the 
 
 dred and fifty-one Tons of Coal, 4 lien for the whole freight on part of a 
 
 Blatchf. (U. S. C. C.) 368. See also cargo only attaches where the goods 
 
 The Nestor, 1 Sura. (U. S.) 73 ; Eads are consigned to on? consignee to be 
 
 v. The H. D. Bacon, 1 Newb. (U. S.) delivered at the same time, and at the 
 
 274. same place, and if there are different 
 
 4 Sodergren v. Plight, cited in Han- contracts, and different places of de- 
 son v. Meyer, 6 East, 622. In the livery, a lien only exists on each set of 
 Court of Admiralty, where a lien exists goods. Bernal v. Pirn, 1 Gale, 17. 
 
THE EIGHTS OP CARRIERS. 467 
 
 this is very frequently the case, of course no such right at- 
 taches, and the only way of compelling payment is by pro- 
 ceeding on the charter-party. 1 And, in a case above cited, it 
 has been decided that the power to retain in possession goods 
 which have been carried, with the view of enforcing the pay- 
 ment of the charges incurred in the conveyance, does not per- 
 mit a master to detain the goods on board ship, as, if that 
 were the case, the consignee would have no opportunity of in- 
 specting the goods with a view to ascertaining their condition. 2 
 
 SEC. 441. Modifications introduced by Revenue Regulations. 
 — The laws of a trade of the revenue regulations may modify 
 the customs of a trade, and will to that extent modify the 
 rights incident thereto. Thus, if a master, in obedience to some 
 such revenue regulations, lands goods at a particular wharf, 
 he does not by so doing lose his lien on them for the freight. 
 In a case in point, it was held that the ship-owners' lien for 
 freight continued after the landing of the cargo at the West 
 India Docks, although they did not give notice to the com- 
 pany to retain the cargo until payment of the freight. 3 The 
 possession of the carrier may be constructively extended so as 
 to lengthen the duration of the lien. Thus, where no con- 
 tract exists as to the landing of goods at a particular wharf, 
 and the practice is to land them at a public wharf, and direct 
 the wharfinger not to part with them until the charges upon 
 them have been paid, the wharfinger becomes the agent of the 
 ship-master, and the goods therefore remain in his possession 
 constructively. 4 
 
 Sec. 442. Termination of Lien. — The termination of the 
 lien with the termination of the possession is, as we have had 
 
 1 Abbott on Ship., 11th ed., p. c. 58, § 15, expressly reserves the lien 
 246. for freight; and by 6 Geo. IV. e. 107, 
 
 2 Abbott on Sliip., 11th ed.,- p. § 134, if goods are landed and sold by 
 375. But see Artaza v. Smallpiece, 1 the officers of the customs, the freight 
 Esp. 23. not having been paid, the produce of 
 
 8 Wilson v. Rymer, 1 Maule & S. the sale is applicable, in the first in- 
 
 157 ; Faith v. Bast India Co., 4 B. & stance, to its liquidation. See Abbott 
 
 Aid. 630 ; Horncastle v. Parran, 3 B. on Ship., pt. iv. c. 11, 11th ed., p. 
 
 & Aid. 497 ; and see East India Com- 256. 
 
 pany's Act, 54 Geo. III. c. 228, § 18. * Abbott on Ship., pt. vi. c. 4, 11th 
 
 The London Dock Act, 45 Geo. III. ed., p. 618 et seq. 
 
468 THE LAW OF CARRIERS. 
 
 occasion to observe, the invariable rule of the common law. 
 Where, however, the possession is terminated by the fraud of 
 the person to whom the goods are delivered, or where the de- 
 livery is made to the consignee, in consequence of his false or 
 fraudulent promise that he will pay the freight as soon as the 
 goods are received, this will not deprive the carrier of his 
 lien, and a carrier who is deprived of his possession by such 
 means may sue the consignee in replevin. 1 A common-law 
 lien may be lost where the parties enter into an express agree- 
 ment for a lien of a greater or less extent, such contract being 
 treated as a waiver of the lien arising from the operation of 
 law ; 2 but a mere change in the form of indebtedness does 
 not defeat a lien unless there is an agreement to that effect, 
 or it is apparent that such was the intention of the parties. 8 
 The lien can only be defeated by some act of the party which 
 operates as a waiver ; 4 and whether he has done so or not, is 
 a question for the jury. 5 If he attaches the property upon a 
 debt against the owner, the lien is waived ; 6 but their attach- 
 ment at the suit of a third person does not defeat the lien. 7 
 
 Sec. 443. Lien upon Passenger's Luggage. — It is necessary 
 to remember that the right of lien extends to the luggage of a 
 
 1 Neither, of course, can a lien be 416; Taylors. Robinson, 8 Taunt. 648; 
 created by reason of a fraudulent pos- Madden v. Kempster, 1 Camp. 12 ; 
 session of a chattel ; as, in the words Johnson v. Hill, 3 Stark. 172 ; Binns 
 of McKinlet, J., "To create a lien v. Pigot, 9 C. & P. 208; King t>. Li- 
 on a chattel, the party claiming it must dian Orchard Canal Co., 11 Cush. 
 show the just possession of the thing (Mass.) 231 ; The Bolivar Olc (U. S. 
 claimed ; and no person can acquire a C. C.) 474. 
 
 lien founded upon his own illegal or 2 Brown v. Gillam, 4 Wheat. (U. S.) 
 
 fraudulent act or breach of duty ; nor 255 ; Schanck v. Arrowsmith, 9 N. J. 
 
 can a lien arise where, from the nature Eq. 314. 
 
 of the contract between the parties, it 8 Clark v. Draper, 19 N. H. 419 ; 
 would be inconsistent witli the express Lewis v. Starke, 18 Miss. 120 ; Muir 
 terms or the clear intent of the con- v. Cross, 10 B. Mon. (Ky.) 277; Sue- 
 tract." Randel o. Brown, 2 How. cession of Kercheval, 14 La. Ann. 457. 
 (U. S.) 406. See also Cranston v. 4 Parker v. Kelly, 18 Miss. 143. 
 The Philadelphia Insurance Co., 5 Binn. 6 Buckley ». Handy, 2 Miles(Penn.), 
 (Penn.) 538; Tunio v. Bethuue, 2 449. 
 
 Desau. (S. C.) 285 ; Jarvis v. Rogers, 6 Legg v. Willard, 17 Pick. (Mass.) 
 
 15 Mass. 389, 395 ; Gray v. Wilson, 9 140. 
 
 Watts (Penn.), 512; and see, further, ' Outcolt v. Darling, 25 N. J. L. 
 
 Weymouth v. Bowyer, 1 Ves. Jun. 443. 
 
THE EIGHTS OP CARRIERS. 469 
 
 passenger, for the recovery of the money due by him for his 
 conveyance, and therefore in such a- case the lien extends to 
 goods for charges not actually incurred in carriage. Of course, 
 the master has no lien on the traveller himself, nor has he a 
 lien upon the clothes worn by the traveller when about to 
 leave the vessel. 1 
 
 SEC. 444. Rule as to a Number of Parcels. — A similar rule 
 is applicable to the lien upon merchandise carried by sea, as 
 that which was stated above with reference to merchandise con- 
 veyed by land carriers, where the parcels are many. From 
 what has been said above, it will be understood that where 
 several packages of goods belonging to the same owner are car- 
 ried the same voyage, a delivery of some of these packages 
 will not defeat the lien on those packages which have not 
 been delivered. 2 
 
 SEC. 445. Where there are two Contracts. — If, however, 
 there be two contracts to carry with different termini to the 
 voyage in each contract, no lien attaches for freight under the 
 one contract upon goods shipped under the other and improp- 
 erly detained on board by the carrier ; 3 for in this, as in all 
 other cases, no lien can be acquired by wrongful possession. 
 No lien, therefore, attaches, if the goods which are directed to 
 one place are improperly carried to another. 4 
 
 Sec. 446. Where Carrier is Charterer of Ship. — A difficulty 
 arises in the case where the carrier is not the actual owner, 
 but only the charterer of the ship, because the right of lien 
 only arises where the carrier has possession of the goods, and 
 
 1 "Wolf v. Summers, 2 Camp. 631. in the actual possession of the inn- 
 
 Formerly it was held that an innkeeper keeper. Hence the clothes he wears 
 
 possessed not only a right of lien on are not seizable, and a basket or bundle 
 
 the property of his guest, but that this in his hand is protected against the 
 
 right gave him the power to detain the lien of the innkeeper. See Cross on 
 
 person of his guest until satisfaction Lien, p. 343. See a Scotch case, 
 
 of his claim. See Newton v. Tring, M'Kichen v. Mnir, 1 J. Shaw, 223. 
 
 per Eybe, J., 1 Show. 269. This 3 Boggs v. Martin, 13 B. Mon. 
 
 doctrine has since been overruled. (Ky.) 239 ; Fuller v. Bradley, 25 Penn. 
 
 Sunbolf v. Alford, 3 M. & W. 248 ; St. 120 ; Lane v. Old Colony R. R. 
 
 1 H. & H. 13. This case also decided Co., 12 Gray (Mass.), 143. 
 
 another point — that the goods of a 3 Bernal v. Pirn, 1 Gale, 17. 
 
 guest are liable to such Ken only when 4 Cross on Lien, p. 290. 
 
470 THE LAW OP CARRIERS. 
 
 a vessel freighted under a charter-party is not necessarily 
 transferred from the possession of the owner to that of the 
 freighter. In such a case the owner of a ship, retaining the 
 possession of it, has a lien on the cargo for the hire of a ship 
 under a charter-party. 1 The question as to whether the pos- 
 session remains properly and legally in the owner can be 
 answered by a construction of the charter-party. 
 
 Sec. 447. Who has Legal Possession of Ship. — Under the 
 stipulations contained in some charter-parties, the owner must 
 be held to retain such a control over the ship as to be con- 
 sidered in legal possession of the ship and goods during the 
 voyage through, or by means of, the master and crew as his 
 agents or servants. Consequently, when the goods arrive at 
 their destination, the owner has, in such a case, a lien over 
 them for the stipulated hire of the ship. In other cases the 
 construction of the charter-party will lead to the conclusion 
 that the owner's possession of the ship does not continue, and 
 that, therefore, no such lien attaches to the goods on board. 
 The question to be answered, then, is, when the possession in 
 the ship passes from the owner to the freighter. " The broad 
 principle," says Mr. Cross, " formerly maintained, that, in the 
 case of a chartered ship, the charterer, during the existence of 
 the charter-party, was, to all intents and purposes, the owner 
 of the ship, and that, therefore, when goods were put on board 
 by him in that character, the owner had no right to resume 
 possession of the ship until the goods were unloaded, and had, 
 consequently, no right to detain the goods, has been much 
 narrowed and qualified by subsequent decisions." 2 Where, 
 by a charter-party, it was covenanted that the owner should 
 receive on board, in London, all such goods as the freighter 
 thought fit to load, and should proceed therewith to Madras, 
 and there, after delivering her outward cargo, receive from the 
 freighter's agents a homeward cargo, and deliver the same in 
 
 1 Saville v. Campion, 2 B. & Aid. 339 ; since overruled. See Saville ». 
 503 ; Tate v. Meek, 8 Taunt. 280 ; and Campion, 2 B. & Aid. 503 ; and Christie 
 see also Trinity House v. Clark, 4 M. v. Lewis, 2 B. & B. 410 ; 5 Moore, 
 & S. 288. 211. See also Lane v. Penniman, 4 
 
 2 Cross on Lien, p. 301. See Hut- Mass. 91 ; Portland Bank v. Stubbs, 
 ton v. Bragg, 7 Taunt. 14 ; 2 Marsh, 6 Mass. 422. 
 
THE EIGHTS OP CARRIERS. 471 
 
 London ; and that all the cabins but one, which was reserved 
 for the use of the captain, should be at the disposal of the 
 freighter, who was to appoint a supercargo to superintend the 
 stowage of the goods, while the freight was to be paid at so 
 much per ton on the registered tonnage of the ship ; the cap- 
 tain and crew were employed and paid by the owner : it was 
 held that, there being no express words of demise of the ship 
 itself in the charter-party, the freighter did not thereby be- 
 come the owner for the voyage, but that the possession con- 
 tinued in the owner, and that he, therefore, had a lien upon 
 the cargo for his freight. 1 Such a case^ differs from that in 
 which the charterer takes the vessel into his own service, and 
 agrees to pay a certain freight for the use and hire of her. 
 
 SEC. 448. There can be no Lien -where there is neither Actual 
 nor Constructive Possession. — Construction. — The effect, then, 
 of the charter-party is to be considered in each case, and the 
 question to be decided is, whether the owner continues in pos- 
 session, or is divested of possession ; the invariable rule being 
 that there can be no lien where there is neither an actual nor 
 a constructive possession of the cargo. In such a construction 
 the intention of the parties is to be had regard to, rather than 
 any technical sense of the terms used. 2 Thus, where the owner 
 of a ship had entered into a charter-party with a freighter, by 
 which the former " granted, and to freight let," and the latter 
 " hired, and to freight took," for a voyage out and home, it 
 was held that, taking the whole charter-party into considera- 
 tion, the possession of the ship did not pass to the freighter, 
 but remained in the owner, notwithstanding the words of 
 grant used in its commencement, and that the mere circum- 
 stances of his having entered into an agreement with the 
 charterer as to the mode by which he should be paid for 
 freight, did not divest him of his lien on the cargo, and it 
 made no difference that he had delivered the homeward cargo 
 to the consignees, and received the freight due upon the bills 
 of lading, which was different from that due on the charter- 
 party. 3 
 
 1 Saville v. Campion, 2 B. & Aid 2 Fowler v. Kymet, 3 East, 396. 
 
 503. See also Campion v. Colvin, 3 8 Christie v. Lewis, 2 B & B 
 Bing. N. C. 17; 2 Hodges, 116. 410. 
 
472 THE LAW OP CARRIERS. 
 
 SEC. 449. Stipulations equivalent to Actual Demise. — On the 
 other hand, though the charter-party contain no words of 
 actual demise, there may he stipulations equivalent in their 
 effect to an actual parting with the ship, pro hdc vice. Thus, 
 it was held that where the owners of a ship by deed appointed 
 one Betham to the command of their ship, on a voyage from 
 London to Calcutta and back, the latter loading her out and 
 home, and guaranteeing to the owners a certain amount of 
 freight, to be paid monthly, and secured by the freight bills — 
 which were to be made payable to certain trustees for the 
 owners and Betham, and transmitted to England — but retain- 
 ing the surplus, or making good the deficiency, and the owners, 
 placing an agent on board to superintend the management of 
 the stores, with power to displace Betham and appoint another 
 commander, in case of his breaking the agreement on his part ; 
 it yet amounted as an appointment of the freighter to the legal 
 ownership of the ship pro tempore, and he alone was entitled 
 to receive the freight for the carriage of the goods. 1 The 
 grounds upon which it was attempted to establish the posses- 
 sion of the owners were, first, that the freighter was appointed 
 to the command of the ship by them ; secondly, that an agent 
 was put on board by the owners, with powers inconsistent with 
 Betham's ownership ; and, thirdly, that the owners virtually 
 received the benefit of the homeward freight, by the trans- 
 mission of the freight bills to England. 
 
 Chief Justice Tindal, in delivering judgment, said : " With 
 respect to the objection, it is almost the invariable practice and 
 usage that the owners of a ship, although they let it out upon 
 freight to a charterer, do themselves appoint the captain and 
 the crew, — the chartering of the ship not being so much the 
 chartering of the hull as of the ship in a state fit for the pur- 
 poses of mercantile adventure. 
 
 " The second objection is answered by the fact that the 
 authority of the agent was limited to the superintendence 
 of the acts of Betham, as captain, and not as freighter, the 
 utmost authority given to the agent being that of displacing 
 
 1 Newberry v. Colvin, 1 Cromp. & nom. Colvin v. Newberry, 8 B. & C. 
 J. 192 ; 7 Bing. 190, overruling s. c. 166 ; 2 M. & R. 47. 
 
THE EIGHTS OF CARRIERS. 473 
 
 the master and appointing another, in case Betham should be 
 guilty of a breach of any of the covenants or agreements on 
 his part. But if Betham ceased to be master, he continued, 
 nevertheless, by the terms of the charter-party, to be the 
 freighter of the ship, possessing the same power to take 
 goods on board, and liable to the same responsibilities on 
 the one hand to the owners, for the time-freight for which he 
 had contracted ; on the other hand, to the shippers of goods 
 for the safe conveyance of the goods shipped. 
 
 " As to the third objection, the charter-party gave the own- 
 ers a security on freight-bills received by the freighter, but 
 gave them no direct or immediate interest in the freight 
 earned, the whole of the surplus of which belonged to Be- 
 tham. If Betham had obtained no homeward cargo from 
 Calcutta, so that no freight-bills could have been transmitted, 
 the owners would still have been entitled to their time-freight. 
 The freight earned by Betham on the intermediate voyage was 
 not a security to the owners ; and even in the homeward 
 voyage, if the ship had been lost, there might have been no 
 freight payable to the freighter, but still he must have made 
 good his liability to a monthly freight for the use and hire 
 of the vessel." 1 
 
 SEC. 450. How the Question of Ownership is to be de- 
 cided. — The judgment in this case indicates how the question 
 of ownership is to be tested, under such circumstances, with 
 the view of ascertaining whether the owner has still the pos- 
 session of the ship, and consequently a lien upon the cargo. 
 Any words contained in the charter-party which clearly indi- 
 cate the intention of the one party to give up, and the other to • 
 take and hold possession of, the ship for a certain time will 
 deprive the owner of that possession which was his, and con- 
 sequently of the right of lien under consideration. 
 
 1 The question of the pro Mc vice Schuster v. M'Kellar, 7 E. & B. 704 ; 
 
 ownership of vessels has often been 26 L. J. h. s. Q. B. 281 ; Scott v. Scott, 
 
 considered in cases of collision and 2 Starkie, 348; The Alfen, Swab. 189 ; 
 
 salvage. See Fenton v. The Dublin The Waterloo, 2 Dods. 433; The 
 
 Steam Packet Co., 8 Ad. & El. 835 ; Maria Jane, 14 Jur. 859 ; The Collier, 
 
 Quarraan o. Bennet, 6 M. & W. 499 ; L. B. 1 Adm. & Eec. 83 ; 2 Mar. Law 
 
 Martin v. Timperley, 4 Q. B. 429; Cas. o.s.473; The Scout, 1 Asp. Mar. 
 
 M'Laughlin v. Prior, 4 M. & G. 48 ; Law Cas. 1. 
 
474 THE LAW OP CARRIERS. 
 
 SEC. 451. Owner's Power to reserve his Right of Lien. — It 
 is to be remembered that, notwithstanding the correctness of 
 the above statement of the law, it is in the power of the owner 
 of the ship to reserve to himself, by a " full and unequivocal 
 declaration of intention " in the charter-party, his right of lien 
 upon the cargo of the vessel, and that although a construction 
 of the charter-party might result in showing that the owner 
 had divested himself of his possession of the ship in favor of 
 the freighter. Thus, where a lien on the lading of a ship had 
 been expressly reserved to the owner by a charter-party, it was 
 held that goods which the charterer purchased and put on 
 board, and thence transferred with a stipulation to convey 
 them to their destination, for a certain amount of freight, 
 were, even as against an indorsee of a bill of lading, subject 
 not only to that freight but to the ship-owner's lien for a 
 balance due to him under the charter-party, whether the pos- 
 session of the ship was by the charter-party completely out of 
 the ship-owner and vested in the charterer or not. 1 And where, 
 by a charter-party which was negotiated by A, as agent of B, 
 the charterer (B) engaged to pay a lump-freight of 735Z. for 
 a voyage to the coast of Africa and back to London, payable 
 in cash on correct delivery of the return cargo, and the char- 
 ter-party contained the following clause : " The master to sign 
 bills of lading at any rate of freight without prejudice to this 
 charter," B, the charterer, shipped certain oil on his own 
 account for London, for which the master signed a bill of lad- 
 ing, making the oil deliverable to A or assigns, " he or they 
 paying freight for the said goods as usual." This bill of lad- 
 ing B indorsed to A, in part payment of advances made by 
 him on the purchase of the outward cargo. It was held, in 
 this case, that, A having notice of the terms of the charter- 
 party, the owner was entitled to a lien on the oil for the entire 
 chartered freight. 2 
 
 1 Small v. Moales, 9 Bing. 574 ; 2 vin, 3 Bing. N. C. 17 ; 2 Hodges, 116 ; 
 M. & Scott, 674. Gilkison v. Middleton, 2 C. B. n. s. 
 
 2 Kern v. Deslandes, 10 C. B. n. s. 134 ; Pearson v. Goscuen, 17 C. B. 
 205. See also Gledstanos o. Allen, 12 N. s. 352; 33 L. J. G. P. 265. 
 
 C. B. 202. See also Campion v. Col- 
 
THE EIGHTS OP CARRIERS. 475 
 
 Sec. 452. Where no Lien exists. — No lien exists in re- 
 spect of unliquidated damages. Where the freighter of a ship 
 covenanted that if she should not be fully laden, he would 
 not only pay for the goods on board, but also for so much in 
 addition as the ship would have carried, for which he had be- 
 fore stipulated to pay freight, according to different rates for 
 three descriptions of goods; it was held that the ship-owner 
 had no lien upon the goods actually on board for the amount 
 of the dead freight, in other words, for the compensation in 
 damages, which he was entitled to for the freighter's breach of 
 contract in not putting full loading on board ; which damages 
 were unliquidated, and, there being no lien in such a case, 
 either by the usage of trade or the express contract of the 
 parties. 1 
 
 Sec. 453., Lien for Port Charges. — Still pursuing our in- 
 vestigation as to when and how the right of lien arises to the 
 owner of a ship, we shall find that a special provision in the 
 charter-party that the charterer shall pay the port charges will 
 not entitle the owner to any lien in respect of the payment of 
 them (for they are not of the nature of freight 2 ), unless it be 
 specially stipulated in the charter-party that the owner shall 
 exercise such right if the charges be not paid on the delivery 
 of the goods. Another point deserves notice in this place, 
 and the law upon it follows necessarily from what has already 
 been said of the indefeasibility of a contract for lien under a 
 charter-party by the sale of the cargo ; and that is, that sub- 
 freighters are subject to the lien of the ship-owner under the 
 contract of the original freighter to the extent of their freight, 
 though the ship be freighted by the latter as a general ship. 3 
 It was argued, in Faith v. East India Company, 4 that if the sub- 
 
 1 Phillips v. Bodie, 15 East, 547. M'Lean v. Kerning, 2 L R,. H. of L., 
 
 A mutual obligation in a penal sum 128 ; 1 Asp. Mar. Law Cas. 160 h! 
 
 on the parties, the ship, the tackle, or of L. 
 
 the merchandise consigned will not 2 Faith v. East India Co., 4 B. & 
 
 alter the rights of the owner in this Aid. 630. 
 
 respect, so as to entitle Mm to a right 8 Faith v. East India Co., 4 B. & 
 
 of lien on the breach of the covenant Aid. 630; Mitchell v. Scaife, 4 Camp, 
 
 therein contained. Birley v. Gladstone, 298 ; Paul v. Birch, 2 Atk. 261. 
 
 3 M. & S. 205 ; see also Gray v. Carr, * 4 B. & Aid. 630 
 6 L. R. Q. B. 522 Exch. Ch. ; and 
 
476 THE LAW OP CAEEIEES. 
 
 freighters had paid the freight in advance they would not 
 have been bound to have paid it over again, and that therefore 
 the owner could not in that case have insisted on his lien. 
 Abbott, C. J., in giving judgment, observed : " It is not neces- 
 sary to decide what effect the payment of the freight, if paid 
 before the goods were laden on board in the East Indies, 
 would have had. If such an event had happened, which, how- 
 ever, is not very probable, perhaps the owner's lien for freight 
 might have been thereby defeated." We have been unable to 
 discover any case since that of Faith v. East India Company, 
 in which this point has been raised, and, therefore, in so far 
 as our courts of law go it is still unsettled. The best opinion, 
 however, seems to be that as the ante-payment of freight is 
 unusual, it would require the clearest proof of the bond fide 
 nature of such payment before it could be allowed to defeat 
 the owner's lien. As such a thing " is," in Lord Tenterden's 
 words, " not very probable," the fact of it having been done 
 would suggest the probability of a fraud, and a satisfactory 
 proof that no fraudulent intention dictated the departure from 
 the ordinary usage of the trade should be demanded. 
 
 Sec. 454. Payment of Freight at Lading of Ship or on 
 Delivery. — Lien attaches whether the payment of the freight 
 is to precede or be concomitant with the delivery of the lad- 
 ing of the ship. Thus, in the case of Yates v. Railston, 1 the 
 owner of a vessel was proved to have covenanted by charter- 
 party to let the vessel on freight, and to deliver the cargo in 
 good condition, and the freighters covenanted to pay the 
 freight on delivery of the cargo, — part in money, and the 
 remainder by bills at four months. On these facts it was 
 decided that the owner might detain the cargo until payment 
 of the freight, the delivery of the cargo and the payment of 
 the freight being concomitant acts. And if the owner cove- 
 nanted to deliver the cargo agreeably to the bills of lading, and 
 the freighters covenanted to pay one third in cash on arrival 
 
 1 8 Taunt. 293 ; 2 Moore, 294. 278 ; Alsager v. St. Katherme's Dock 
 
 See also Shepherd v. De Bernales, 13 Co., 14 M. & W. 794 ; 15 L. J. Exeh. 
 
 East, 565 ; Crozier v. Smith, 1 Seott, 34. 
 N. R. 338; Tate v. Meek, 2 Moore, 
 
THE RIGHTS OF CARRIERS. 477 
 
 and the remainder on delivery of the cargo by good bills of ex- 
 change at four months' date, and the captaia land the goods 
 in his own name, and offer them to the freighter at one de- 
 livery on receiving the stipulated freight, it was held that the 
 owner has a lien upon them until such bills of exchange are 
 produced by the freighter. 1 
 
 SEC. 455. Payment at certain Subsequent Date. — From what 
 has been already said in reference to this matter, 2 it is evi- 
 dent that if by the bill of lading the freight is made payable 
 according to the terms of a charter-party, which stipulates for 
 the payment at a certain date subsequent to delivery, no lien 
 attaches to the freight. 3 The negotiation of bills, given in 
 payment of the freight according to the terms of the charter- 
 party, by the owner, amounts to an approval of the bill, and a 
 relinquishment of his lien on the goods. 4 
 
 Sec. 456. Revival of Lien. — If, however, the bills be dis- 
 honored before the possession of the goods, or of some part of 
 them, has been given up, the owner's lien revives either upon 
 the whole or on such as remain undelivered, as the case may 
 be. 5 It is now definitely established, although doubt was once 
 thrown upon the principle, that the existence of a special con- 
 tract between a common carrier and his employer, which has 
 reference to the rights and duties of each, does not deprive 
 the carrier of his lien, unless there is something in the contract 
 inconsistent with the existence of such lien. 6 
 
 1 Yates v. Mennell, 2 Moore, 297. Smith v. Terraud, 7 B. & C. 19 ; 9 D. 
 See also Tate v. Meek, 2 Moore, 278 ; & R. 803 ; Robinson v Read, 9 B. & 
 Brown v. Tanner, 37 L. J. Ch. 923 ; C. 449 ; Strong v. Hart, 6 B. & C. 
 3 L. R. Ch. 597 ; Black v. Rose, 2 160 ; 9 D. & R. 189. If a freighter 
 Moore, P. C. C. n. s. 277 ; 10 Jur. is, through mistake, given a receipt in 
 n. s. 1009 ; Tamvaco v. Simpson, 19 full for freight charges, or expressing 
 C. B.N. s. 453; 11 Jur. n. s. 926; that the charges are "paid through," 
 34 L. J. O. P. 268 ; affirmed on ap- when in fact only the charges of the 
 peal, 1 L. R. C. P. 363, Exch. Ch. first carrier have been paid, the con- 
 
 2 Ante, p. 465. necting carrier is entitled to a lien for 
 8 Lucas v. Nockells (in error), 4 his charges. Wolf v. Hough, 22 Kan. 
 
 Bing. 729; 1 M. & P. 783; 2 You. 260. 
 
 & J. 304. 6 Chase v. Westmore (per Loed 
 
 4 Horncastle v. Parran, 3 B. & Ellenborotjgh), 5 M. & S. 180. "With 
 
 Aid. 497. regard to what is inconsistent, see 
 
 6 Marsh v. Pedder, 4 Camp. 257 ; Raitt v. Mitchell, 4 Camp. 149. As 
 
478 THE LAW OP CARRIERS. 
 
 Sec. 457. Remuneration. — In considering the rights of 
 carriers, that which he has to remuneration must not be 
 overlooked. Before he receives goods to be carried, he is 
 entitled to demand payment of a reasonable amount for the 
 carriage ; and if the owner of the goods does not pay such 
 reasonable amount upon the demand being made, the carrier 
 may refuse to carry. 1 But where a carrier has undertaken 
 the carriage of goods without such demand, and without pay- 
 ment being made, 2 he not only has the right to retain the 
 goods in his possession until his reasonable demands have 
 been satisfied, as we have just seen ; but should he have parted 
 with the possession of the goods without a settlement of his 
 just claims, he may resort to an action at law to recover com- 
 pensation for his services. 3 
 
 SEC. 458. Freight. — Express Agreement. — With regard to 
 this branch of our subject, we can with some confidence assert 
 that a very detailed account of the law does not seem neces- 
 sary. But still some mention must be made of it, and what 
 we shall say, although bearing chiefly upon questions con- 
 nected with shipping, will be applicable to carriers generally. 
 The compensation which the carrier has a right to recover is 
 generally called " freight." i In order to entitle the carrier 
 to recover in such an action, it must be made clear that the 
 goods were conveyed by the consent of the owner, or, to put it 
 negatively, that they were not conveyed against his will ; 5 and 
 it has been decided that in the event of the death of an animal 
 (and the same thing is true of passengers) during the journey 
 or voyage, without any fault or negligence upon the part of 
 the carriers, freight will, in the absence of an express agree- 
 to waiver of lien, see Cargo of the " Bastard v. Bastard, 2 Show. 81. 
 Anna Kimball, 2 Sprague (U. S. C. C), 4 Kirehner v. Venus, 12 Moore, 
 33-; Spartali v. Beneke, 10 C. B. 212 ; P. C. C. 361. See also Willis v. 
 19 L. J. 293. See also Benjamin on Palmer, 7 C. B. n. s. 340 ; Jackson v. 
 the Sale of Personal Property, p. 598 Isaacson, 3 H. & N. 405 ; Seeger v. 
 et seq. Duthie, 8 C. B. N. s. 45 ; 29 L. J. 
 
 1 Per Best, C. J., in Batson v. Don- C. P. 253. 
 ovan, 4 B. & Aid. 28 ; Pakke, B., in 6 The voyage must also be legal to 
 Wyld o. Piekford, 8 M. & W. 448. entitle the carrier to freight. Blanck 
 
 » See Wilson v. Grand Trunk Rail. v. Solly, 1 Moore, 531 ; Holt, 554. 
 Co., 56 Me. 60. 
 
THE RIGHTS OP CARRIERS. 479 
 
 ment as to whether the freight is to be paid for the lading or 
 transporting of the animals, be payable just as if the animal 
 had reached its destination alive. If such express agreement 
 does exist, and shows that the payment of freight was to be 
 for the lading of the cattle, it is clear that the death of any of 
 the cattle subsequent to the lading, through natural causes, 
 cannot deprive the carrier of his right to freight. If, on the 
 other hand, the agreement is for the payment of freight for 
 transporting the cattle, no freight is due for those that die 
 during the voyage, upon the ground that as to them the con- 
 tract is hot performed. 1 
 
 SEC. 459. When Owner is to be regarded as a Carrier. — Terms 
 of Contract. — Where, under a charter-party, there is no actual 
 demise of the ship from the owners to the freighters, but 
 where the legal possession of the ship remains in the owner, 
 the owner is to be looked upon as a carrier, and is subject to 
 the liabilities of a person professing that trade. Under such 
 a charter-party freight would be due, but the right of recovery 
 of such freight must, of course, depend upon the terms of the 
 contract ; and with regard to the construction of such docu- 
 ments, we have already seen 2 that it should be liberal, agree- 
 able to the intentions of the parties, and conformable to the 
 general and particular usages of trade. If a charter-party 
 provides that the goods shall be delivered in accordance with 
 bills of lading to be signed by the master, and the master 
 does, upon receiving the goods, sign bills of lading for deliv- 
 ery upon payment of freight, and this right has not been 
 insisted upon by the master, the merchant charterer is answer- 
 able for the freight. 3 If the consignee or indorsee of a bill of 
 
 1 Abbott on Ship. 409 el seq. ; Dig., Black, 2 Sprague (U. S. C. C), 49 ; 
 
 14, 2, 10. See Andrew v. Moorhouse, The Excelsior, 2 Ben. (U. S. C. C.) 
 
 5 Taunt. 435 ; 1 Marsh, 122 ; Osgood 434; Seers v. Linseed, 1 Cliff. (U. S. 
 
 v. Groning, 2 Camp. 460 ; Cook v. C. C.) 63 ; Donahoe v. Kettell, 1 Cliff. 
 
 Jennings, 7 T. R. 381 ; Mashiter v. (U. S. C. C.) 135 ; Hart v. Shaw, 1 
 
 Buller, 1 Camp. 81 ; s. p. Clark v. Cliff. (U. S. C. C.) 358. 
 
 Druisina, 1 Marsh, 123 ; Blakeley v. 2 Ante, p. 472. 
 
 Dixon, 2 B. & P. 321 ; Cargo ex 8 Pox v. Nott, 6 H. & N. 630. See 
 
 Galam, 2 Moore, P. C. C. s. s. 216 ; also Shepherd v. De Bernales, 13 East, 
 
 33 L. J. Adm. 97; Vlierboom v. 567; Penrose v. Wilks, Abbott on 
 
 Chapman, 13 M. & W. 230; Hunter Ship. 415 ; Tapley v. Martin, 8 T. R. 
 
 v. Prinsep, 10 East, 378 ; Swett v. 445 ; Christie v. Howe, 1 Taunt. 300. 
 
480 THE LAW OP CARRIERS. 
 
 lading containing the goods deliverable to him on payment of 
 freight, accepts the consignment, there is either a legal pre- 
 sumption that he contracted to pay the freight, 1 or evidence 
 from which the jury would be justified in finding a contract 
 by the consignee to pay the freight. 2 
 
 Sec. 460. when Freight is due. — As freight is the price of 
 carriage, and not of receiving goods to be carried, 3 it follows 
 that no freight becomes due or recoverable until the voyage is 
 completely performed. The contract is indivisible, and the 
 carrier can recover for no portion of the voyage that has been 
 made until the whole is finished and the goods delivered. 4 
 Still the intention of the parties will guide the decision of the 
 court. Thus, in a case where a ship is hired to sail to a cer- 
 tain port, and then to make a return voyage still in the same 
 service, it might be difficult to say whether this constituted 
 one entire voyage or two distinct voyages. In such a case the 
 intention of the parties will assist in the determination. 5 It 
 is, however, in the power of the consignees to accept goods 
 short of their destination, when the whole of the contract of 
 the carrier will have been virtually performed. 
 
 SEC. 461. Where Right commences. — While the law is 
 careful to give each person a remedy who has a right, it is not 
 careful — and it is well it should not be so — to lay remedies 
 thick upon one another ; so the right to an action for freight 
 
 1 Scaife v. Tobin, 3 B. & Ad. 523 ; 38 L. J. C. P. 93 ; Brown v. Tanner, 
 Dougal v. Kemble, 3 Bing. 383 ; Cork 37 L. J. Ch. 933 ; 3 L. E. Ch. 597 ; 
 v. Taylor, 13 East, 399 ; Jesson v. Paynter v. James, 16 W. B. 768. 
 Solly, 4 Taunt. 53. s Per Loud Loughborough, in 
 
 2 Sanders v. Vanzeller, 4 Q. B. 260 ; Mason v. Lickbarrow, 1 H. Bl. 359. 
 Kemp v. Clark, 12 Q. B. 647 ; Zwil- 4 Osgood v. Groning, 2 Camp. 466. 
 chenbart v. Henderson, 9 Exch. 722 ; 6 See Smith, Merc. Law. 299 ; An- 
 Moller ». Young, 5 E. & B. 755. See drew v. Moorbouse, 5 Taunt. 435; 
 also Cock v. Taylor, 13 East, 399 ; Blakely v. Dickson, 2 B. & P. 321 ; 
 Tobin v. Crawford, 5 M. & W. 235 ; Mashiter v. Buller, 1 Camp. 84 ; Cro- 
 9 M. & W. 716 ; Dougal v. Kemble, zier v. Smith, 1 M. & G. 407 ; Cargo 
 3 Bing. 383 ; and see the Bills of ex Galam, 2 Moore, P. C. C. n. s. 216 ; 
 Lading Act, 18 & 19 Vict. c. Ill j 33 L. J. Adm. 97 ; Vlierboom v. Chap- 
 Smurthwaite v. Wilkins, 11 C. B. n. s. man, 13 M. & W. 230 ; Hunter v. 
 847 ; Lewis i>. M'Kee, L. E. 2 Exch. Prinsep, 10 East, 378 ; and see Morris 
 37. See as to right to recover freight, v. Bobinson, 5 D. & E. 35 ; 3 B. & C. 
 Duthie v. Hilton, 4 L. E. C. P. 138 ; 196. 
 
THE RIGHTS OP CARRIERS. 481 
 
 does not arise until the delivery of the goods, when, as we 
 have seen, the right of lien ceases. 1 
 
 SEC. 462. Arrangements for Conveyance. — Application of 
 Law to Circumstances. — Payment by Tons. — Part Delivery. 
 
 — Questions of some nicety arise in connection with this sub- 
 ject, and these are due to the variety of modes in which con- 
 tracts for carriage by sea are formed, and the uncertainty 
 which often exists at the time that the contract is entered 
 into as to the species of goods that are to be conveyed. It is 
 common to arrange for such conveyance in one of two ways, 
 
 — either to hire the entire ship at a specific price, or to load 
 the cargo at a settled price per ton. Under either of such set 
 of circumstances the application of the law is not difficult. If 
 under a contract of the former nature the owner of the goods 
 only fills part of the ship, he is, of course, still liable for the 
 whole sum agreed upon. In a case where the covenant was to 
 pay for hides at so much per pound net weight at the scales, 
 and it happened that the packages were wrapped in hides of 
 an inferior quality which are generally somewhat damaged, 
 and the evidence varied as to whether freight was paid for 
 them or not, and whether they paid duty, it was held that 
 they must pay both freight and duty. 2 Where an entire ship, 
 of a certain specified burden, is hired, and the charterer agrees 
 to pay a certain sum for every ton of goods which he shall put 
 on board, but does not agree to supply a full cargo, he is only 
 liable for the actual amount carried. 3 If part of the cargo has 
 been delivered to, and received by, the consignees, freight is 
 payable upon it, even though the rest has not been delivered, 
 and though it has not been landed at the port named in the 
 charter-party, but at some other port to which the consignee 
 directed the captain to come. 4 
 
 1 Blakely v. Dickson, 2 Bos. & P. 2 Moorson v. Page, 4 Camp. 103. 
 
 321 ; Andrews v. Moorhouse, 5 Taunt. 8 James (Lady) v. East India Co., 
 
 435 ; Mashiter v. Buller, 1 Camp. 84 ; Abbott on Ship. 412 ; and see Hunter 
 
 Crozier v. Smith, 1 Man. & G. 407 ; v. Fry, 2 B. & A. 421 ; Thomas v. 
 
 Smith's Merc. Law, 299. With re- Clarke, 2 Stark. 457. 
 
 gard to transshipment, see Shipton v. 4 Christie v. Rowe, 1 Taunt. 300. 
 Thornton, 9 A. & E. 314; Rosetto v. 
 Guraey, 11 C. B. 176. 
 
 31 
 
482 THE LAW OF CARRIERS. 
 
 SEC. 463. Mode of calculating Freight which has been fixed 
 for Articles that are not carried. — A question of some interest 
 in reference to freight has more than once been raised, and 
 that is, where the rate of freight has been fixed with a view to 
 certain articles, and either none or only some of these have 
 been actually carried, what freight is payable on the remain- 
 ing articles ? 1 A definite answer, however, has been given to 
 it, to the following effect : " Where a charter-party provides 
 for the carriage of various classes of goods at specified rates, 
 and gives no permission for the substitution of other goods ; 
 or permits, but does not provide, a scale of payment for such 
 substituted goods, — in either case the freight payable in re- 
 spect of them is calculated upon an average of what would have 
 been earned by carrying a similar amount of all the enumer- 
 ated articles in equal quantities." 2 
 
 SEC. 464. Capture. — Recapture. — Transshipment. — If the 
 ship is captured, the owners lose their freight, and the mer- 
 chant loses his goods ; the contract is suspended, but the right 
 of freight will revive upon the recapture of the ship, and its 
 arrival at its original destination. 3 Again, if a ship be dis- 
 abled before completing the voyage, and is in such a condition 
 that the voyage cannot be completed, the goods may be trans- 
 shipped to their destination, and such a transshipment will be 
 in furtherance of the original purpose, and entitle the carrier 
 to his freight. 4 It is clear that it is a paramount duty to send 
 
 1 As to how it ought to be calcu- him of that contract that he will be 
 lated, see Geraldes v. Denison, Holt, entitled to the full consideration for 
 N. P. 346 ; Moller v. Living, 4 Taunt, which it was entered into, without 
 102. respect to the particular circumstances 
 
 2 Capper v. Poster, 3 B. N. C. 938 ; attending the fulfilment. If it is the 
 Coclcburn v. Alexander, 6 C. B. 791. latter, a right to the full freight seems 
 
 8 Beale v. Thompson, 3 B. & P. 420, to be implied. The master is at liberty 
 431 ; The Race-Horse, 3 Rob. A. 101. to transship ; but for what purpose, ex- 
 See also Curlingi). Long, 1 B. & P. 634. cept for earning his full freight at the 
 
 4 Shipton v. Thornton, 9 A. & B. rate agreed on ? " See also Mathews 
 
 314. In that case the court said : "It v. Gibbs, 7 Jur. N. s. 186; 30 L. J. 
 
 may be taken to be either the duty or Q. B. 55. The master is allowed a 
 
 the right of owner to transship. If it reasonable time to transship, so as to 
 
 be the former, it must be so in virtue earn his freight. The Soblomstein, 1 
 
 of his original contract ; and it should L. R. Adm. 293 ; 36 L. J. Adm. 5. 
 seem to result from a performance by 
 
THE EIGHTS OP CARRIERS. 483 
 
 on the cargo to its destination, when, in the opinion of a 
 prudent mail, that will be most for the benefit of all con- 
 cerned. 1 
 
 Sec. 465. Apportionment of Freight. — Where the master 
 of a ship, having put into a port short of the destination of 
 the cargo, does not hire another ship to complete his contract, 
 and so entitle himself to the whole freight, the ship-owner is 
 still entitled to be paid a proportionate part of the freight, 
 according to the part of the voyage performed. 2 If the mer- 
 chant, his consignee, or agent, is willjjig to dispense with 
 the performance of the whole voyage, and voluntarily accepts 
 the goods before the whole of the duty, imposed by the original 
 contract, has been performed, a proportionate amount of freight 
 will be due fro ratd itineris. 3 But it seems to be clearly 
 established, as a principle of law, that under no other circum- 
 stances than these will any proportion of the freight be due. 
 Consequently, if the master of a ship by any means — such 
 as refusing to repair his ship when it is in such a condition 
 that the goods of the shipper would run the risk of being lost 
 if it put to sea — compels the owner to accept his cargo, that 
 will not be such an acceptance as will entitle the ship-owner 
 to pro ratd freight. 
 
 SEC. 466. When Performance of Voyage is Impossible. — 
 A very difficult question has been raised in a very recent case 
 as to how far a court of equity will presume an implied con- 
 tract on the part of the consignee to accept goods short of 
 their destination, where the circumstances are such that 
 delivery at the agreed port has become impossible, through no 
 fault of the ship-owner or master. In the case of The Teu- 
 
 1 Smith, Merc. Law, 180; Liddard Pacific Steam Co., 20 L. T. Rep. u. s. 
 ». Lopes, 10 East, 526; Wilson v. 912. 
 
 Millar, 2 Stark. 1 ; Manning v. New- s The Newport, Swabey, 335 ; Ab- 
 
 man, 2 Camp. 624. A sale is seldom bott on Ship., pt. iv. c. 9, p. 385, 
 
 advisable. Freeman v. East India Co., 11th ed. See also, per Stoky, J., in 
 
 5 B. & Aid. 617 ; Wilson v. Dickson, The Nathaniel Hooper, 2 Sum. (U. 
 
 2 B. & Aid. 2. S.) 542. See also The Mohawk, 8 
 
 2 Abbott on Ship., 11th ed.,p. 385; Wall. (U. S.) 153 ; Cook v. Gowan, 
 Maclachlan on Ship. See also Xenos 81 Mass. 237 ; M'Kibbin v. Peck. 39 
 v. Pox, L. R. 4 C. P. 65 ; 38 L. J. N. Y. 262. 
 
 C. P. 351 ; Greeves v. West Indian 
 
484 THE LAW OP CARRIERS. 
 
 tonia, 1 it appeared that a Prussian ship, carrying an English 
 cargo, was chartered to proceed to Falmouth, for orders which 
 were to be given within three days after arrival there, for one 
 safe port in Great Britain, or on the Continent between Havre 
 and Hamburgh, both included, and thence to proceed to that 
 port to deliver her cargo. The vessel duly called at Falmouth, 
 on July 10th, 1870, .and on July 11th received orders for Dun- 
 kirk, a French port, for which she at once 'sailed. On July 
 16th, off Dunkirk, the master was informed by a French pilot, 
 in official uniform, tb^it war had been declared between France 
 and Prussia, and he immediately put back to the Downs, to 
 make inquiries, and arrived there on the 17th, but could get 
 no information. On the 18th he was again told war had 
 broken out, and on the 19th he put into Dover. On the 19th 
 war was actually declared. Under these circumstances the 
 contract to deliver at Dunkirk became illegal for the Prussian 
 ship, and the master declined to proceed, and he further refused 
 to deliver the cargo at Dover, except on payment of freight. 
 The consignees sued the ship in the Admiralty Court, for 
 breach of the charter-party in not delivering the goods at 
 Dunkirk ; and Sir R. Phillimore, after a learned exposition of 
 the law both of England and of America, as well as of the 
 opinions of Continental jurists, held that the master was not 
 bound to deliver except on the payment of a pro ratd freight. 
 On this the consignees appealed to the Privy Council, and 
 although the decision was there practically upheld, the Judicial 
 Committee avoided the difficulty by holding 2 that, as the master 
 was entitled to be sent to a safe port, and on the outbreak of 
 war the consignees were bound to give another order, and that, 
 as they demanded their goods at Dover, the master was not 
 bound to deliver there, it being a port within the meaning of 
 the charter, except on payment of full freight, and that the 
 master by delivering at Dover would substantially perform his 
 contract. In delivering the judgment, Mellish, L. J., said : 
 
 1 L. R. 3 Adm. & Ecc. 24 L. T. Cas. 214. Almost all the cases on the 
 Rep. n. s. 521; 1 Asp. Mar. Law subject will be found there cited in the 
 Cas. 32. arguments. 
 
 2 The Teutonia, 1 Asp. Mar. Law 
 
THE BIGHTS OP CAEEIEES. 485 
 
 " Their Lordships having come to the conclusion that the ship- 
 owner has still a lien for the full freight, it becomes unneces- 
 sary to consider whether, if Dunkirk had been the only port 
 of discharge, the ship-owner would have been entitled either 
 to freight fro ratd itineris or to a sum by way of compensa- 
 tion for the carriage of the goods from Pisagua to Dover, and 
 they wish to be understood as giving no opinion on these 
 questions, which no doubt are questions of great difficulty and 
 importance ; " thus leaving the above question untouched. 
 Another case, somewhat similar, was *that of Osgood v. 
 Groning. 1 
 
 Sec. 467. Probable Holding of Courts of Equity. — It is 
 difficult to see, however, how a court of equity could imply a 
 contract under such circumstances, as the only ground upon 
 which they could proceed to force a consignee to pay would 
 be, that delivery at the intermediate port was in some degree 
 as advantageous to the consignee as the fulfilment of the con- 
 tract, which would be barely the case in contracts of affreight- 
 ment. Moreover a court of equity would probably hold that, 
 as a charter-party was a written contract, the parties were 
 bound by its terms, and that, if they had wished to provide 
 against the contingency of the contract becoming illegal, they 
 were bound to have made some provision in their contract so 
 as to meet the emergency, and that having neglected to do so 
 the law could not be expected to help them. Still it is to be 
 remarked that, according to the report of the case of Osgood 
 v. Groning in Abbott, the Lord Chancellor " ordered the mer- 
 chant to admit that he had accepted the goods in the port of 
 London, if it should appear that the master could not reason- 
 ably have been required to proceed on the voyage ; considering 
 that, if the master could not reasonably have been required, 
 the merchant ought to have accepted the goods, and his 
 refusal to accept them was an act against conscience and a 
 proper subject for the jurisdiction of a court of equity, which, 
 on many occasions, places parties in' the situation in which 
 they would stand if that which ought to have been had 
 
 1 2 Camp. 466 ; Abbott on Ship., 11th ed., pp. 401, 402. 
 
486 THE LAW OP CARRIERS. 
 
 actually been done." 1 This, however, is the only case in which 
 such a thing seems to have been done. 
 
 SEC. 468. Abandonment of Cargo by Owner. — Doubt has 
 been felt concerning another incident of freight, and no deci- 
 sion has been arrived at in reference to the point. 2 It is this : 
 Suppose that upon the arrival of the ship at its port of desti- 
 nation, the merchant or his agent chooses to abandon the 
 goods, and leave them in the hands of the master, has he 
 thereby discharged himself from the liability to pay freight ? 
 In the case above referred to, Lord Ellenborough intimated 
 that if the merchant refused to receive the goods on the 
 ground of damages occasioned by the default of the master 
 or mariners,, the point would admit of some doubt ; and Lord 
 Tenterden adds, " In such a case the merchant would derive 
 no benefit whatever from the conveyance, nor would the mas- 
 ter have fulfilled his engagement according to the terms of 
 the lading ; qucere, therefore, whether the master could oblige 
 the merchant to pay freight." 3 This quaere has, however, 
 been answered in the case of Dakin v. Oxley, where it was 
 held that a plea that the goods were so damaged by the 
 default of the master as to be of less value than the freight, 
 and that thereupon the owner abandoned them for the said 
 freight to the master, was no answer to a declaration for 
 freight, under a charter-party, and that the owner was bound 
 to pay freight, and coiild not set off his damage, but had his 
 remedy by way of cross-action. It necessarily results from 
 this case that under no circumstances can the owner abandon 
 his goods in lieu of paying freight, where the master or ship- 
 owner refuses to receive them. The whole law, American, 
 English, and Continental, was there elaborately reviewed by 
 Willes, J.* 
 
 1 Abbott on Ship., 11th ed., pp. 401, 10, torn. ii. ; Morgan v. Insurance Co. 
 
 402. See also Ordinance de la Marine of North America, 4 Dall. (U. S.) 421. 
 
 de Louis XIV., lib. iii. tit. 3, .art. 15 ; 2 Miles v. Bainbridge, cited in Ab- 
 
 Valin, Bmerigon Traite des Assurances bott on Ship., 11th ed., p. 3S0, n. 
 
 et des Contrats a la grosse ; par Bou- 8 Abbott on Ship., 11th ed., p. 380, 
 
 lay-Paty, tit. 1, ch. 12, sect. 31, § i. ; n. ; and see Basten v. Butler, 7 East, 
 
 Pothier, torn. ii. ; Des Charteparties, 479. 
 
 tit. 2, no. 69 ; Boulay-Paty, tit. 8, sect. * Dakin v. Oxley, 15 C. B. h. s. 646 ; 
 
THE RIGHTS OP CARRIERS. 487 
 
 Sec. 469. Legality of Voyage. — The voyage must be legal 
 to entitle a ship-owner to freight, for freight is the reward 
 which the law allows a person to recover for bringing goods 
 lawfully upon a legal voyage. 1 Where a vessel was freighted 
 from Dantzic to London, and was, on her arrival, and after 
 part of her cargo had been delivered, seized by the revenue 
 officers, on suspicion that she was Prussian built, the treasury, 
 on petition, ordered the ship to be restored on condition that 
 the cargo should be exported, and on payment of 501. as sat- 
 isfaction to the seizing officers ; and it was held that this of 
 itself was sufficient to show that the voyage was illegal, with- 
 out condemnation, and that, although the freighters accepted 
 and exported the cargo according to the terms of the order, 
 the master was precluded from recovering freight. 2 
 
 Sec. 470. Right to Cargo. — There is another right which a 
 carrier has, which must be mentioned, and that is to have the 
 cargo which has been contracted for supplied. If the mer- 
 chant shipper fails to do so, an action brought by the ship- 
 owner will lie, and the damages will be measured by the 
 difference between what the plaintiff would have earned if 
 the contract had been fulfilled, and that which he has earned, 
 notwithstanding the breach ; 3 but supposing he is unable to 
 earn anything, he will be entitled to a sum equivalent to the 
 freight under the contract, less the expenses he would have 
 incurred in earning that freight. But a ship-owner, whose 
 charterer fails to supply a cargo, is bound to use due diligence 
 in endeavoring to procure another ; he is not entitled by rea- 
 son of the failure to lie idle, and to claim his full freight. 
 
 Sec. 471. 8 & 9 Vict. c. 20, § 97. — Another right of carriers 
 requires to be mentioned in this place. Looked at in one aspect, 
 it might be called a special right, as it is bestowed by Act of 
 Parliament upon a certain class of carriers. As it is so, and 
 as there can be very little doubt as to the exact meaning of 
 
 2 Mar. Law Cas. o. s. 6 ; Abbott on Holt, 554. See also Hatohwell v. 
 
 Ship., 11th ed., pt. iv. c. 9, § 7, p. 379. Cooke, 6 Taunt. 577. 
 
 1 See Muller v. Gernon, 3 Taunt. s Hunter v. Pry, 2 B. & A. 421, 
 394. See also Blanck v. Solly, Holt, 424 et seq. ; Cockburn v. Alexander, 
 554. 6 C. B. 814; Harriss v. Edmonds, 1 
 
 2 Blanek v, Solly, 1 Moore, 531 ; C. & K. 686. 
 
488 THE LAW OF CARRIERS. 
 
 the statute, a very few words will suffice. By the 8 & 9 Vict, 
 c. 20, § 97, it is provided that, " if on demand any person fail 
 to pay the tolls due in respect of any carriage or goods, it 
 shall be lawful for the company to detain and sell such car- 
 riage, or all or any part of such goods, or, if the same shall 
 have been moved from the premises of the company, to detain 
 or sell any other carriages or goods within such premises be- 
 longing to the party liable to pay such tolls, and out of the 
 moneys arising from such sale to detain 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 and goods as shall remain 
 unsold to the person entitled thereto." In the case of Field 
 v. Newport, Abergavenny, and Hereford Railway Company, 1 
 it was decided that a demand of the sum actually due for tolls 
 is a condition precedent to the right to sell. In that case the 
 circumstances were these : The company was by its act em- 
 powered to take tolls for the use of its railway in respect of 
 tonnage of articles conveyed upon the railway, certain sums 
 per ton, and a further sum if the goods were conveyed in the 
 carriages of the company, together with tolls for the use of 
 engines. There was fixed a maximum rate of charge, includ- 
 ing the charges for the use of the carriages, wagons, or trucks, 
 and for locomotive power, and all other charges incident to 
 such conveyance. The company was also entitled to take in- 
 creased charges for the conveyance of goods, by agreement 
 with the owners of the goods, by reason of any special service. 
 The company, having for a considerable time carried on their 
 line coals, in carriages belonging to the plaintiff, from Ponty- 
 pool Junction to Hereford, made a demand of a gross sum 
 equal to the amount of the tonnage rates for coals and use of 
 engines ; and also of a sum claimed by them for sending back 
 the plaintiff empty carriages from Hereford to Pontypool. 
 They gave no explanation of the items making up the gross 
 sum claimed. The plaintiff, having omitted to pay the amount 
 claimed, the company sold the plaintiff's carriages and goods 
 to satisfy the amount due. 
 
 1 3 H. & N. 409 ; 27 L. J. Exch. 396. 
 
THE RIGHTS OP CAEEIER8. 489 
 
 Sec. 472. Construction of statute. — But it was held by the 
 court that the sum claimed by the company for sending back 
 the return wagons was not toll, and that, the company having 
 demanded a larger sum than that due for tolls, the sale was 
 unlawful. These statutory powers must be complied with in 
 all strictness. That is evident from the case just quoted, and 
 still more clearly so from another case, in which it appeared 
 that the railway company under its act was entitled to seize 
 and sell goods for which tolls due to the company have not 
 been paid ; but at the same time it provided that the persons 
 seizing the goods should have their names annexed to the list 
 of tolls, and that a demand should, previous to such seizure, 
 have been made ; and that, on refusal to satisfy the demand, 
 the goods have been appraised. In the case under consider- 
 ation, it appeared that goods were seized by the company, who 
 had been in the habit of carrying goods belonging to the plain- 
 tiff, and to whom arrears of tolls were due, without the goods 
 having been appraised, and the only evidence of a demand, in 
 conformity with the statute, was the presenting of a bill of 
 the plaintiff for the amount of the tolls, which was dishonored. 
 Under these circumstances the company had no right to seize 
 the goods. 1 
 
 1 North v. London & North- West- Jur. jr. s. 869 ; 32 L. J. C. P. 156; 
 em Rail. Co., 14 C. B. s. s. 132; 9 11 W. R. 624. 
 
490 
 
 THE LAW OF CARRIERS. 
 
 CHAPTER XI. 
 
 CARRIERS OF PASSENGERS. 
 
 .473. 
 
 Importance of the Subject. 
 
 Sec. 500. 
 
 474. 
 
 Difference between Duties of 
 
 
 
 Carriers of Goods and Pas- 
 
 501. 
 
 
 sengers. 
 
 
 475. 
 
 Carriers of Passengers not In- 
 
 502. 
 
 
 surers. 
 
 503. 
 
 476. 
 
 Duties of. 
 
 504. 
 
 477. 
 
 What is Due Care, Skill, &c. 
 
 
 478. 
 
 Implications. 
 
 505. 
 
 479. 
 
 Evidence of Negligence. 
 
 
 480. 
 
 Rule in Carpue v. London, &c. 
 
 506. 
 
 
 Railway Co. 
 
 507. 
 
 481. 
 
 Rule in Cornman v. The East- 
 
 
 
 ern Counties Railway Co. 
 
 508. 
 
 482. 
 
 Stational Arrangements. 
 
 509. 
 
 483. 
 
 Invitation to alight. — Rule in 
 
 510. 
 
 
 Praeger v. The Bristol, &c. 
 
 511. 
 
 
 Railway Co. 
 
 512. 
 
 484. 
 
 With regard to Stational Ar- 
 rangements. 
 
 513. 
 
 485. 
 
 Platform Accommodations. 
 
 514. 
 
 486. 
 
 When Passenger may regard 
 
 
 
 himself as being invited to 
 
 515. 
 
 
 alight. 
 
 
 487. 
 
 What will entitle Passenger to 
 alight. 
 
 516. 
 
 488. 
 
 Latent Defects. 
 
 517. 
 
 489. 
 
 Degree of Care required of 
 
 518. 
 
 
 Passenger Carriers. 
 
 519. 
 
 490. 
 
 Same continued. 
 
 520. 
 
 491. 
 
 Liability for Servants and 
 Agents. 
 
 521. 
 
 492. 
 
 Contributory Negligence. — 
 Concurrent Negligence. 
 
 522. 
 
 493. 
 
 Rights, &c. of Passenger Car- 
 riers. 
 
 523. 
 
 494. 
 
 Duty to receive Passengers. 
 
 524. 
 
 495. 
 
 Rule in Masiter v. Cooper. 
 
 525. 
 
 496. 
 
 When Refusal to carry is Good 
 
 
 
 Ground of Action. 
 
 626. 
 
 497. 
 
 Statutory Regulations. 
 
 
 498. 
 
 Modification of Duties by Con- 
 tract. 
 
 527. 
 
 499. 
 
 Duties limited by Trade and 
 
 528. 
 
 
 Custom. 
 
 629. 
 
 Evidence of Negligence in Case 
 of Accident. 
 
 Duty in Circumstances of Dan- 
 ger. 
 
 Possible Avoidance of Accident. 
 
 Rule in Crofts v. Waterhouse. 
 
 Duties as to Sufficiency of Con- 
 veyance. 
 
 Railways. — Statutory Provi- 
 sions. 
 
 Penal Provisions, Servants, &c. 
 
 Provision for Inspection of 
 Railways. 
 
 What is a Passenger Railway. 
 
 Necessity for Regulations. 
 
 7 & 8 Vict. c. 85. 
 
 Effect of Provisions considered. 
 
 7 & 8 Vict. t . 85, § 10. 
 
 Travelling without Payment of 
 Fare. 
 
 Apprehension and Detention of 
 Offender. 
 
 Payment of Fare for Longer 
 Distance. 
 
 Provisions for Safety of Passen- 
 gers. 
 
 Necessity for Legislation. 
 
 Contract. 
 
 What amounts to a Contract. 
 
 Civil Wrong and Pure Wrong. 
 
 How Terms of Contract are as- 
 certained. 
 
 Rule in the Great Northern Rail- 
 way Co. v. Harrison. 
 
 Do not warrant Carriages to be 
 Road-worthy. 
 
 Responsibility for Delay, &c. 
 
 Negligence in not starting 
 Train. 
 
 Rule in Great Northern Railway 
 Co. v. Hawcroft. 
 
 Rule in Le Conteur v. South- 
 western Railway Co. 
 
 Fares. 
 
 Principle of Interpretation. 
 
CARRIERS OP PASSENGERS. 
 
 491 
 
 Sec. 530. 
 
 Duty to show and deliver Ticket. 
 
 Sec. 554. 
 
 531. 
 
 Correlative Duty on Part of the 
 
 555. 
 
 
 Company. 
 
 556. 
 
 532. 
 
 Rule of Construction of By- 
 
 557. 
 
 
 laws. 
 
 558. 
 
 533. 
 
 Fraudulent Intention. 
 
 
 534. 
 
 Ingredient of the Offence. 
 
 559. 
 
 535. 
 
 Construction of By-law. 
 
 560. 
 
 536. 
 
 Restrictions on Preference. 
 
 
 537. 
 
 Tramways. — Street Railways. 
 
 561. 
 
 538. 
 
 How established. 
 
 
 539. 
 
 Same. 
 
 562. 
 
 540. 
 
 Same. 
 
 563. 
 
 541. 
 
 Authority of Promoters, as to 
 
 
 
 Tolls, &e. 
 
 564. 
 
 542. 
 
 Power to enforce Rules. 
 
 565. 
 
 543. 
 
 Penalties. 
 
 566. 
 
 544. 
 
 Analogy between Street and 
 
 
 
 other Railways. 
 
 667. 
 
 545. 
 
 Hackney-coaches. 
 
 568. 
 
 546. 
 
 History of Legislation in refer- 
 
 569. 
 
 
 ence to. 
 
 570. 
 
 547. 
 
 With regard to Licensing. 
 
 571, 
 
 548. 
 
 Same. 
 
 572. 
 
 549. 
 
 Same. 
 
 573. 
 
 550. 
 
 Same. 
 
 574. 
 
 551. 
 
 Sanitary Precautions, 
 
 575. 
 
 552. 
 
 Passengers by "Water. 
 
 576. 
 
 553. 
 
 Duties of Passengers by. 
 
 577. 
 
 Duties of Carriers by Water. 
 
 Within and beyond the Realm. 
 
 Statutes. 
 
 Provisions of. 
 
 Rules, &c, prescribed by Order 
 in Council. 
 
 Licensing Passage Brokers, &c. 
 
 Expense of forwarding Passen- 
 gers. 
 
 The Merchant Shipping Act of 
 1854. 
 
 Penalties. 
 
 Duties of, as to Report of Acci- 
 dents. 
 
 In Case of Supposed Loss. 
 
 Entry of Collisions in Log-book. 
 
 Contracts for Conveyance of 
 Passengers. 
 
 Accommodation and Provisions. 
 
 Deficiency of Water. 
 
 Time of Sailing. 
 
 What amounts to Warranty. 
 
 Conveyance. 
 
 As to Safety of Passengers. 
 
 Passage-money, &c. 
 
 Obligation to repay. 
 
 Insurance by the Owners. 
 
 Lien on Passenger's Luggage. 
 
 Collisions. 
 
 SEC. 473. The Importance of the Subject. — There are few 
 subjects, the thorough knowledge of which is of more impor- 
 tance to the lawyer than that to which we must now turn our 
 attention. Its importance at the present time is infinitely 
 greater than it ever was before. Owing to the facilities of 
 communication which have been produced and perfected in 
 recent years, the number of persons travelling is now in- 
 finitely greater than it ever was at any previous period. In 
 bygone times populations were sedentary. The difficulties 
 and disagreeables of a journey, the slowness of all the modes of 
 conveyance, and the time necessarily occupied in even the 
 shortest journey deterred many from ever leaving the town or 
 county in which they were born. Now, these conditions being 
 reversed, the result is as much an extreme in the other direc- 
 tion. Everybody travels in our days, and hence the increased 
 importance of the law which has to do with their mutual rela- 
 tions to the individuals or companies who undertake to carry 
 them as passengers ; for the importance of a law is in the 
 
492 THE LAW OF CARRIERS. 
 
 direct proportion to the number of persons it directly or 
 indirectly affects. 
 
 Sec. 474. Difference between Duties of Carriers of Goods 
 and Passengers. — As the traffic in passengers has been of 
 rapid growth, so has this department of law been of rapid 
 development. The first case in which damages were recov- 
 ered for injury done to a person seems to have been tried in 
 the end of the last century. 1 There Lord Kenyon said that 
 when the proprietors of mail-coaches " carried passengers, 
 they were bound to carry safely and properly." 2 There can 
 be no doubt, whether these words " to carry safely and prop- 
 erly " contain the whole duty of a carrier of passengers or 
 not, that the duty which devolves upon a common carrier of 
 persons, as passengers, and a common carrier of goods, must 
 differ from one another in a variety of important ways. The 
 fact that goods are not endowed with intelligence, and cannot 
 be supposed to exercise any care or caution with a view to 
 their own safety, evidently makes an important distinction 
 between them and persons who can exercise such a care, in 
 so far as their conveyance by a carrier is concerned. If a car- 
 rier knows that he carries gold and silver, he is bound to be 
 more diligent than if he were carrying stone or lime. Reason 
 points out the probability of the former running much greater 
 risk of being stolen than the latter. So, even with regard to 
 the same kind of goods, the carrier's care and diligence must 
 vary from time to time in degree, as there is greater danger at 
 night than during the day, and as some places are known, 
 from their lonely nature or disreputable character, to be more 
 lawless than others ; so in distinguishing between the duties 
 
 1 White v. Boulton, Peake's Cases, v. Niel, 1 MoLeau (U. S.), 540 ; Parish 
 81. t>. Reigle, 11 Gratt. (Va.) 697 ; Peck 
 
 2 The rule adopted in this country v. Neil, 3 McLean (U. S ), 22 ; Hanley 
 has been repeatedly held to be that a v. Harlem E.. R Co., 1 Edm. (N. Y.) 
 stage proprietor is bound to furnish Sel. Cas. 359 ; Sales v. Western Stage 
 good coaches,, gentle and well-broken Co., 4 Iowa, 547; Ingalls ». Bills, 9 
 horses, and a prudent and skilful driver, Met. (Mass.) 1. But he is not liable 
 and that a recovery may be had for an for a mere accident. McKinney ». 
 injury resulting to a passenger from Niel, ante ; McLane v. Sharp, 2 Harr. 
 any fault in these respects. McKinney (Del.) 481. 
 
CARRIERS OF PASSENGERS. 493 
 
 appertaining to these two kinds of traffic — goods traffic and 
 passenger traffic — reason must be brought to bear ; and it 
 will show that the intelligence of persons carried as passen- 
 gers, their immunity from theft, their capacity to avoid dan- 
 gers, and their liability through their own want of care to 
 incur risks which are not incident to bales and boxes, must 
 draw a broad distinction between the duties and liabilities 
 which devolve upon and are incurred by carriers who under- 
 take these dissimilar branches of the same trade. 
 
 SEC. 475. Carrier of Passengers not an Insurer. — The in- 
 telligence and volition of the persons carried makes such a 
 material difference in all possible calculations, that it precludes 
 the carrier from assuming the duty of the insurer with regard 
 to them, and the law has not felt it necessary to impose this 
 duty upon him. 1 Had the law done so, one result would in- 
 evitably have followed, and that would have been either the 
 refusal of carriers to undertake passenger traffic, or their 
 refusal of it, except upon special contracts affecting every indi- 
 vidual case. They must necessarily by one means or another 
 have brought down their liability to that of special carriers 
 for hire, or have increased their charges to such an extent as 
 to cover all possible losses, not only from unavoidable acci- 
 dents, but from voluntary fraud or personal negligence. But 
 the law has not done so, and the carrier of passengers — 
 although he is called a common carrier 2 — does not insure or 
 warrant the safety of his passengers ; he contracts only to use 
 reasonable skill and prudence in carrying, and he is conse- 
 quently liable only for actual or culpable negligence. 3 This 
 distinction was made by Parke, J., in the case of Crofts v. 
 
 1 The duty of a cai-rier of passen- prime of life. Sheridan v. Brooklyn, 
 
 gers must bear some relation to the &c. R. R. Co., 36 N. Y. 39 ; Sawyer 
 
 capability of the individual to take care v. Dulany, 30 Tex. 479. 
 
 of him or her self; just as the duty of 2 But see Aston v. Heaven, 2 Esp. 
 
 a common carrier of goods is modified 533 ; Sharp v. Grey, 9 Bing. 460 ; 
 
 in relation to the nature and value of Bennett v. Peninsular Steamboat Co., 
 
 the goods intrusted to him. Thus it 6 C. B. 775 ; 18 L. J. 85. 
 
 would behoove a carrier to be more care- 8 Redhead v. Midland Rail. Co., 
 
 ful of the very young or the very aged 2 L. R. Q. B. 412; and in Exch. 
 
 and infirm, than he is of persons in the Ch. 4 L. R. Q. B. 379. 
 
494 THE LAW OP CARRIERS. 
 
 Waterhouse. 1 "There is a wide distinction," he said, "be- 
 tween contracts for the conveyance of passengers and those 
 for the conveyance of goods. In the latter case the parties 
 are liable at all events, except the goods be destroyed or dam- 
 aged by the act of God or the king's enemies ; whilst in the 
 former case they are only responsible to their passengers in 
 case of express negligence." 
 
 Sec. 476. Duty of a Carrier of Passengers. — Now the lat- 
 ter is just the duty that a special carrier for hire is bound to 
 perform, and if he does not do it he is responsible to the owner. 
 Consequently the duty and liability of a common carrier of 
 passengers are similar to the duty and liability of a special 
 carrier of goods for hire. It is at the same time evident that the 
 liability of a carrier is not a constant quantity (so to speak) , even 
 although he is only a special carrier for hire, and he is bound 
 to bestow that amount of care that the thing or person requires ; 
 and as the circumstances may vary, so may his duty, and con- 
 sequently, in the event of injury, his liability. 2 The policy of 
 the law made common carriers insurers of the goods they car- 
 ried, with a view to preventing fraudulent combinations, which, 
 if the law had been less strict in this particular, would doubt- 
 less have arisen between the carrier and the robber ; and the 
 policy of the law continues that extensive responsibility in the 
 persons of the carriers of passengers with regard to the lug- 
 gage which the passengers carry with them. 3 But to hold 
 that a similar rule was necessary with regard to those carriers 
 who conveyed passengers was to shut one's eyes to the reason 
 of its introduction in the other case. Consequently a car- 
 rier of this nature is not liable for an injury to a passenger 
 which cannot be ascribed to any want of due care, diligence, 
 
 1 11 Moore, 138 ; cf. Lovett v. 135 ; Maverick v. Eighth Avenue R. 
 Hobbs, 2 Shaw. 423. See also Christie R. Co., 36 N. Y. 378; Johnson v. 
 v. Griggs, 2 Camp. 79, per Sm James Winona, &c. R. R. Co., 11 Minn. 296 ; 
 Mansfield. Wheaton v. North Beach, &c. R. R. 
 
 2 Stokes v. Saltonstall, 13 Pet. (U. Co., 36 Cal. 590; Fuller v. Nauga- 
 S.) 150 ; Boyce v. Anderson, 2 Pet. tuck R. R Co., 21 Conn. 563, 576 ; 
 (U. S.) ] 50 ; The New World v. King, Hall v. Connecticut River Steamboat 
 16 How. (U. S.) 469 ; Brockway v. Co., 13 Conn. 326. 
 
 Lascala, 1 Edm. (N. Y.) Sel. Cas. s Ante, pp. 112, 113. 
 
CARRIERS OP PASSENGERS. 495 
 
 or skill upon his part. But the highest degree of care must 
 be exercised to preserve the safety of passengers, and it has 
 been held that the mere circumstance that a passenger is in- 
 jured, in the absence of circumstances repelling it, raises a 
 presumption of negligence ; 1 and this is undoubtedly the rule 
 when the circumstances are such as to fairly warrant the pre- 
 sumption, 2 but not otherwise. 3 He is not liable to a passen- 
 ger as a common carrier, nor as an insurer of his safety, 
 because, being himself a rational being, it is presumed that 
 the passenger will look after his own safety, — as a reasonable 
 being naturally would, — except in so far as he must neces- 
 sarily depend upon the carrier. 4 
 
 SEC. 477. What is Due Care, Skill, and Diligence in Carrier 
 of Passengers. — What will amount to such a culpable want of 
 skill, care, or diligence has already been indicated; but with a 
 view to making the matter clear, we may allude to one or two 
 decisions which indicate the true scope of the duty. Thus, in 
 the case of Toomey v. The London, Brighton, and South Coast 
 Railway, 5 it appeared that on the platform of one of the com- 
 
 1 Sullivan v. Philadelphia, &c. R. R. .v. Kennard, 21 Penn. St. 203; Meir 
 Co., 30 Penn. St. 234 ; Baltimore, &e. v. Pennsylvania R. R. Co., 64 Penn. 
 R. P.. Co. v. Worthington, 21 Md. 275. St. 225 ; Laing v. Calder, 8 Penn. St. 
 
 2 Teital v. Middlesex R. R. Co., 109 479 ; The Oriflamme, 3 Sawyer (U. S. 
 Mass. 398 ; Iron R. R. Co. v. Mowery, C. C), 397 ; Philadelphia, &c. R. R. Co. 
 26 Ohio St. 418 ; Delaware, &c. R. R. v. Derby, 14 How. (U. S.) 468 ; Tuller 
 Co. v. Napheys, 90 Penn. St. 135 ; v. Talbot, 23 111. 357. Thus, while a 
 Dougherty v. Missouri, &e. R. R. Co., railroad company is not liable for an 
 9 Mo. App. 478. injury resulting from a latent defect in 
 
 8 Holbrook v. Utica, &c. R. R. Co., an axle or wheel, which is not discov- 
 
 12 N. Y. 236. erable by the ordinary tests, Meir v. 
 
 4 Redman's Law of Railway Car- Pennsylvania R. R Co., ante, yet it 
 
 riers, 5. is liable for an injury resulting from 
 
 6 3 C. P>. n. s. 146. See also Botch a defect not externally discoverable, 
 
 v. Smith, 7 H. & N. 736. The rule when it has made no effort to detect 
 
 laid down by Mansfield, C. J., in such defects. Seott v. Ohio, &c. R. R. 
 
 Christie v. Griggs, 2 Camp. 79, that Co. (Penn.), 13 Leg. Int. 336. In 
 
 while a carrier does not warrant the reference to the safety of the vehicles 
 
 safety of a passenger, yet he is bound employed to carry passengers, the 
 
 to provide for his safe conveyance, so question as to whether the carrier is 
 
 far as human care and foresight will go, liable for injuries resulting from im- 
 
 is generally adopted in this country, perfections therein, depends upon the 
 
 Indianapolis, &c. R. R. Co. v. Horst, circumstance as to whether he has 
 
 93 U. S. 291 ; New Jersey R. R. Co. been guilty of negligence in reference 
 
496 
 
 THE LAW OP CARRIERS. 
 
 pany's stations there were two doors in close proximity to 
 each other ; the one for necessary purposes had painted over 
 it the words " For Gentlemen," the other had over it the words 
 " Lamp Room." The plaintiff, having occasion to go to the 
 urinal, inquired of a stranger where he should find it, and, 
 having received a direction, by mistake opened the door of the 
 " lamp room," and fell down some steps and was injured. In 
 an action against the railway company it was held that, in the 
 absence of evidence that the place was more than ordinarily 
 dangerous, the judge was justified in nonsuiting the plaintiff, 
 on the ground that there was no evidence of negligence upon 
 the part of the railway company. In that case, Williams, J., 
 stated a rule which has been adopted by judges in subsequent 
 cases, which is to the following effect : " It is not enough to 
 say that there was some evidence. A scintilla of evidence or 
 a mere surmise that there may have been negligence on the 
 
 to them, and this largely involves the 
 question as to whether skilful work- 
 men were employed for their construc- 
 tion, and proper diligence was used to 
 ascertain whether suitable materials 
 were used, or there were imperfections 
 therein arising from any cause ; and if 
 the injury arose from any hidden de- 
 fect which could not be discovered by 
 the utmost vigilance, the carrier can- 
 not be held responsible for injuries re- 
 sulting therefrom, because he has not 
 been guilty of negligence in respect 
 thereto. M'Elroy v. Nashua & Lowell 
 R. R. Co., & Cush. (Mass.) 400. In 
 Ingalls v. Bills, 9 Met. (Mass.) 1, a 
 passenger in a stage-coach was injured 
 by the breaking of one of the iron 
 axletrees, in which there was a small 
 flaw, entirely surrounded by sound iron 
 one fourth of an inch thick, and which 
 could not be discovered by the most 
 careful examination, and the court held 
 that the stage proprietors could not be 
 held chargeable for the injury thus re- 
 ceived. The rule adopted in this ease, 
 and which is generally recognized, is 
 
 that carriers of passengers for hire are 
 bound to use the utmost care and dili- 
 gence in providing safe, sufficient, and 
 suitable coaches, harnesses, horses, and 
 coachmen, in order to prevent those in- 
 juries which human care and foresight 
 can guard against, and that if an acci- 
 dent happens from a defect in a coach, 
 which might have been discovered and 
 remedied upon the most careful and 
 thorough examination of the coach, 
 such accident must be ascribed to neg- 
 ligence, for which the owner is liable ; 
 but that, on the other hand, if the acci- 
 dent arises from a hidden and internal 
 defect, which the most thorough ex- 
 amination would not disclose, and 
 which could not be guarded against 
 by the exercise of a sound judgment 
 and the most vigilant oversight, the 
 owner of the coach cannot be held 
 answerable therefor. The same rule 
 has been applied to railroad companies, 
 not only as to their cars, tracks, struc- 
 tures, &c, but also in the management 
 of their trains. M'Elroy v. Nashua & 
 Lowell R. R. Co., ante. 
 
CARRIERS OF PASSENGERS. • 497 
 
 part of the defendants clearly would not justify the judge in 
 leaving the case to the jury ; there must be evidence on which 
 they might reasonably and properly conclude that there was 
 negligence." * 
 
 Sec. 478. implications. — Necessarily much uncertainty has 
 been felt as to what circumstances will render a carrier liable 
 to a passenger in case of injury occurring during the journey, 
 and as to what the carrier does actually undertake to do for an 
 individual who becomes a passenger by his conveyance. No 
 human transaction is fully explicated at the time it is entered 
 upon. Much is in most cases left unexpressed, but is not the 
 less an important part of the transaction with regard to the 
 rights and duties of the parties, although it is introduced only 
 by implication. Some things are so obvious that it does not 
 seem necessary to point them out, and some incidents to a 
 bargain are so absolutely necessary to the objects with a view 
 to which it is entered upon that the statement of them at 
 the time would seem a redundancy. Where that is the case, the 
 law makes the necessary implication as much a part of the 
 contract as the actual expression. Thus, where a person sells 
 a piece of land in the centre of his own property, it might not 
 occur to the buyer to stipulate for the right to pass over the 
 vendor's property to reach his purchase. It seems so obvious 
 that no one would purchase property in such a position with- 
 out some such condition that the vendee is entitled to conclude 
 that no one would think of selling the thing without at the 
 same time disposing of this incident right. Hence upon these 
 grounds the implication would be regarded as a part of the 
 contract. So in all questions with regard to the carriage of 
 passengers. The contract which is expressly entered upon is 
 that of conveyance, but conveyance without a considerable cer- 
 tainty of safety would not be entered upon ; so, with a view of 
 securing that, the law has thought it best to impose a duty of 
 
 1 Where a train tods off the track, 111, or is submerged by reason of the 
 Feital v. Middlesex, &c. R. R. Co., washing away of ah embankment, this 
 109 Mass. 398, or is overturned, Pitts- is 'prima facie evidence of negligence, 
 burg, &c. B. B. Co. v. Thompson, Brehm v. Great Western B. R. Co., 34 
 56 111. 138 ; Yonge v. Kinney, 28 Ga. Barb. (N. Y.) 256. 
 
 32 
 
498 • THE LAW OP CARRIERS. 
 
 carrying with a certain amount of care upon the carrier, for 
 a breach of which an action will lie. The express contract 
 is to carry, but there is an understanding that the business of 
 carrying will be undertaken and accomplished with care and 
 caution. And it is because this is an almost necessary result 
 of human nature, under the circumstances it has become law ; 
 and we find that a carrier must use due care and diligence, 
 and that in case these are not used, and injury is done to a 
 passenger, which is directly ascribable to his neglect, he will 
 be liable to that passenger for the injury done. We have con- 
 sidered these broad principles which lie at the foundation of 
 this matter, and we have examined some of the cases which 
 bear principally upon stational arrangements and the like ; 
 but we may turn for a time to the consideration of those cases 
 in which negligence in carrying has been the ground of action, 
 for, although the principles involved in all these are the same, 
 it is sometimes more convenient for a reader to have actual 
 illustrations than to be possessed of the grounds upon which 
 individual cases were actually decided. 
 
 Sec. 479. Evidence of Negligence. — Thus, in one case, 
 where a passenger by an excursion train was injured in an 
 accident which occurred upon the line of the London, Brighton, 
 and South Coast Railway Company, owing to the excursion 
 train which had been hired by a society from the company, — 
 the tickets for which had been sold and distributed, not by a 
 servant of the company, but by the secretary of the society 
 that hired the train, — running in the dark against another 
 train which was standing still at an intermediate station, and 
 where the declaration alleged that the plaintiff had at the 
 request of the company become a passenger for hire in one of 
 their trains, and that in consequence of the carelessness, negli- 
 gence, and want of skill of the company and their servants, 
 the plaintiff was injured, it was held that the mere fact of the 
 accident having occurred was primd facie evidence of negli- 
 gence on the part of the company, and also that there was 
 evidence to go to the jury in support of the allegation that the 
 plaintiff became a passenger for hire with the company. 1 
 
 1 Skinner v. London, Brighton, & 15 Jur. 299; Zemp v. Wilmington, 
 South Coast Rail. Co., 5 Exoh. 787; &c. R. R. Co., 9 Rich. (S. C.) 84; 
 
CARRIERS OF PASSENGERS. 499 
 
 SEC. 480. Rule in Carpue v. London, &o. Railway Co. — In 
 Carpue v. London and Brighton Railway Company, 1 it ap- 
 peared that the defendants were empowered to make a railway, 
 which all persons were to have the liberty of using, with car- 
 riages, on payment of tolls, regulated by the act. The com- 
 pany was also empowered to provide locomotive engines and 
 charge for their use, and to use locomotive engines and car- 
 riages for the conveyance of passengers, and to charge for 
 such conveyance in addition to the tolls, within a limited 
 amount. It was enacted that no action should be prosecuted 
 against any person for anything done, or omitted to be done, 
 in pursuance of the act, or in the execution of the powers 
 given by h> without twenty days' notice in writing. A decla- 
 ration against the company charged, that they were owners 
 of the railway and of carriages used for the conveyance of 
 passengers along it for reward, that the plaintiff became a 
 passenger in one of the carriages for reward to them, and it 
 became their duty to use due care in conveying him ; breach, 
 that they did not use due care in conveying him, but so negli- 
 gently conducted themselves in carrying him, and managing 
 the carriage in which he was a passenger, the train to which 
 it was attached, and the engine whereby it was drawn upon 
 the railway, that the carriage was thrown off the rails and the 
 plaintiff injured. In this case it was held that no notice of 
 action was necessary, the company being sued in their capacity 
 of carriers, and not for anything done or omitted under the 
 act. The duty to carry, with due and proper care and skill, 
 was held to arise in relation to a person who accompanied 
 letters carried on a railway pursuant to 1 & 2 Vict. c. 28. 2 
 
 SEC. 481. Rule in Cornman v. The Eastern Counties Rail- 
 way Co. — In Cornman v. The Eastern Counties Railway 
 Company, 3 the defendants, a railway company, had on their 
 platform, standing against a pillar which passengers passed 
 
 Sullivan v. Philadelphia, &c. R. R. Co., a Collet v. London & North-Western 
 
 30 Penn. St. 234, ; New Orleans, &c. Rail. Co., 11 Jur. 1053 ; 20 L. J. Q. B. 
 
 Co., 38 Miss. 242. 411 ; 16 Q. B. 984. 
 
 1 5 Q. B. 747; D. & M. 608; 3 « 4 H. &. N. 781; 29 L. J. Exch. 
 
 Rail. Cas. 692 ; 13 L. J. Q. B. 138. 94. 
 
500 THE LAW OF CARRIERS. 
 
 going to and from the trains, a portable weighing-machine, 
 which was used for weighing passengers' luggage, and the 
 foot of which projected about six inches above the level of 
 the platform. It was unfenced, and had stood in the same 
 position without any accident having occurred to persons pass- 
 ing it for about five years. The plaintiff, being at the station 
 on Christmas Day inquiring for a parcel, was driven by the 
 crowd against the machine, caught his foot in it, and fell over 
 it. It was held that there was no evidence of negligence to go 
 to the jury, the machine being in a situation in which it might 
 have been seen, and the accident not being shown to be one 
 which could have been reasonably anticipated. Bramwell, 
 B., said : " In such a case it is always a question whether the 
 mischief could have been reasonably foreseen. Nothing is 
 so easy as being wise after the event. Here the evidence 
 was that the company might reasonably have anticipated that 
 no mischief could occur, since no mischief had resulted from 
 keeping the machine in the position in which it stood for so 
 long a period." x 
 
 Sec. 482. Stational Arrangements. Another case which 
 bears on the duty of a carrier in so far as stational arrange- 
 ments are concerned, and one which is nicely distinguished 
 from those just referred to, is the case of Longmore v. The 
 Great Western Railway Company. 2 There the defendant 
 company, with a view to the more convenient access of pas- 
 sengers between the two platforms of a station, erected across 
 the line a wooden bridge, which the jury found to be danger- 
 ous, and it was held that the defendants were liable for the 
 death of a passenger through the faulty construction of the 
 bridge, although there was a safer one about one hundred 
 yards further round, which the deceased might have used. 3 
 If their premises are reasonably and ordinarily fit for safe 
 use, and an accident happens, it is no valid argument that 
 
 1 See also, per Eele, C. J., in Mar- 8 See also Martin v. Great Northern 
 fell v. South Wales Rail. Co., 8 C. B. Rail. Co., 16 C. B. 179 ; and Leishman 
 n. s. 525, 534 ; Bigg t>. Manchester, v. London, Brighton, & South Coast 
 See. Bail. Co., 14 W. R. 834. Rail. Co., 19 W. R, 106. 
 
 2 19 C. B. k. s. 183. 
 
CARRIERS OP PASSENGERS. 501 
 
 the best possible precautions had not been used. Where the 
 defendants had a staircase at one of their stations for the use 
 of passengers — it led from the arrival platform to the street, 
 was about six feet wide, had walls on either side, and had 
 wooden steps nosed with brass, which had become smooth 
 from use — and the plaintiff who, together with a large num- 
 ber of others, had used these stairs without accident for 
 months, on ascending them slipped on the brass nosing and 
 hurt himself, brought an action, and relied on the evidence of 
 a builder, who said that brass nosings were improper on such 
 a staircase, that lead would be the proper material to use, and 
 that there should be hand-rails, it was held that there was no 
 evidence to go to the jury. 1 
 
 SEC. 483. Invitation to alight. — Rule in Praeger v. The Bris- 
 tol, &c. Railway Co. — In the case of Praeger v. The Bristol and 
 Exeter Railway Company, 2 it appeared that the plaintiff had 
 been travelling as a second-class passenger from Clevedon to 
 Bristol by the defendants' line of railway, and occupied the last 
 compartment of the hindmost carriage of the train, which con- 
 sisted of an engine and tender and two composite carriages. 
 The journey from Clevedon is performed on a branch line, as 
 far as Yatton, at which place there are separate platforms for 
 the branch and main lines. The branch platform at Yatton 
 is about 130 feet long, and for about 100 feet of its length, 
 from the inner, or Yatton, end of it, runs quite straight or 
 parallel with the branch line rails, and for that distance the 
 space between it and the carriages is about ten inches wide. 
 The further or outer end of the platform is, for the purposes 
 of the traffic, curved or bevelled off from the line of rails, so 
 that at that part of it the space between it and the carriages 
 is about eighteen inches wide. There is, however, attached 
 to each carriage, immediately outside the door, an iron step, 
 ten inches wide, so that the space between the platform and 
 
 1 Crafter v. Metropolitan Rail. Co., Brighton, & South Coast Rail. Co., 22 
 
 L. R. 1 C. P. 300 ; 35 L. J. C. P. 132. L. T. n. s. 712. 
 Seealso Blackmanw. London, Brighton, 2 23 L. T. v. s. 366; and 24 L. J. 
 
 & South Coast Rail. Co., 14 W. R. w. s. 105 Exch. Ch. 
 769. See also Leishman v. London, 
 
502 THE LAW OP CARRIERS. 
 
 the carriages is thereby bridged over by the step, and reduced 
 thereby to the width of eight inches. Upon the day in ques- 
 tion it appeared that the train in which the plaintiff was trav- 
 elling drew up at the branch platform, and was stopped about 
 twenty feet short of the extreme end of it, where stationary 
 buffers, or " dead ends," are fixed, and the compartment of 
 the carriage in which the plaintiff was sitting was, when the 
 train stopped, immediately opposite the curved or bevelled-off 
 part of the platform described above. The name of the sta- 
 tion was called out, and the door of the carriage was opened, 
 and several of the plaintiff's fellow-passengers got out and 
 alighted in safety on the platform. The plaintiff then pro- 
 ceeded to follow them, and stepped out of the carriage, as he 
 had always before been in the habit of doing, without using the 
 iron step, expecting to step as usual upon the platform, instead 
 of which he stepped into the eighteen-inch vacant space be- 
 tween the carriage and the platform, and falling through re- 
 ceived the injury for which he sought compensation in the 
 action alluded to. It was admitted that he had often travelled 
 by the same line before, and knew the nature of the platform, 
 but he had never before travelled in the last compartment of 
 the hindmost carriage, and was not aware that he had stopped 
 opposite the curved part of the platform. There were paraffin 
 oil lamps on the platform, and one in the carriage itself, but 
 it did not appear that the lights, whatever and wherever they 
 were, were such as to enable a passenger clearly to distinguish 
 the vacant space from the solid platform. Negligence- was 
 charged by the plaintiff and denied by the defendants, and the 
 defendants charged the plaintiff with contributory negligence. 
 The jury found for the plaintiff for 1,600?. damages. Upon 
 a rule it was held by Kelly, C. B., and Pigott, B. (Martin, B., 
 dissentiente), that there was no evidence to go to the jury of 
 negligence upon the part of the defendants. This decision was 
 reversed in the Court of Exchequer Chambers, where it was 
 held that there was evidence of the negligence of the defend- 
 ants to go to the jury, inasmuch as there was a clear invitation 
 to the plaintiff to alight and no warning given, although in 
 consequence of the insufficiency of light the danger was not 
 apparent. 
 
CARRIERS OF PASSENGERS. 
 
 503 
 
 Sec. 484. With regard to Stational Arrangements. — In an 
 action against a railway company, it was proved that the 
 plaintiff was bitten by a stray dog at a railway station belong- 
 ing to the defendants while waiting for a train. It was also 
 proved that at 9 P. M. the dog flew at and tore the dress of an- 
 other female on the platform ; that at 10.30 he attacked a cat 
 in the signal-box near the station, when the porter there kicked 
 him out and saw no more of him, and that he made his appear- 
 ance again at 10.40 on the platform, where he bit the plaintiff. 
 In this case it was held that there was no evidence to warrant 
 a jury in finding that the company had been guilty of any neg- 
 ligence in keeping the station reasonably safe for passengers. 1 
 Another duty of the common carriers, in so far as they are 
 possessors of stational accommodation, which they erect with 
 
 1 Smith v. Great Western Rail. Co., 
 2 L. R. C. P. 4. See also Hammack 
 v. White, 11 C. B. n. s. 588 ; 31 L. J. 
 C. P. 129; Byrne v. Boadle, 2 H. &C. 
 722 ; 33 L. J. Exch. 13 ; Scott v. Lon- 
 don Dock Co., 3 H. & C. 596 ; 34 L. 
 J. Exch. 220. See also Daniel v. Direc- 
 tors of the Metropolitan Rail. Co., 6 
 L. R. H. of L. 45 ; 40 L. J. C. P. 
 121. In this case the plaintiff, while 
 travelling ' by the defendant railway, 
 was injured by the fall of an iron gird- 
 er which was being placed over part of 
 the railway with the knowledge of the 
 defendants, and in the construction of 
 works which were to be partly exe- 
 cuted to their satisfaction, but were 
 not under the control of the defendant 
 company. It was proved that the 
 work was extremely dangerous, al- 
 though this was the first occasion upon 
 which a girder had fallen. It also 
 appeared that when work of such 
 a nature was being carried on over a 
 railway, the company had posted a 
 signalman either to warn the work- 
 people of the approach of a train, and 
 to stop them if they were under the 
 control of the railway company, or to 
 warn the driver of the train so as to 
 
 stop the train before incurring any 
 danger, and that upon this occasion 
 this precaution had not been adopted. 
 By consent a verdict had been entered 
 for the plaintiff, with leave reserved 
 to defendants to set it aside, on the 
 ground that there was not sufficient 
 evidence of the defendants' negligence, 
 the court to be at liberty to draw in- 
 ferences of fact, and to adjudge upon 
 the evidence. The result of the de- 
 cision in this case was to establish the 
 principle, that where the execution of 
 work, which, if carefully and properly 
 done, need not result in accident to 
 passeis-by, is intrusted to skilled and 
 proper workmen, there is no obligation 
 on a railway company, whose line ad- 
 joins the work, to take special precau- 
 tious to avert from their passengers a 
 danger which can only be apprehended 
 on the supposition that the workmen 
 engaged will do their work negligently, 
 — at all events, if the company have no 
 control over the workmen, and are 
 otherwise not responsible for their 
 acts ; and Lord Westbtoy held that 
 it would not affect the doctrine if those 
 proper and skilled workmen were em- 
 ployed directly by the company. 
 
504 THE LAW OP CARRIERS. 
 
 the purpose of conveniencing the passengers who come to them 
 to be carried, was discussed in the case of Foy v. London, 
 Brighton, and South Coast Railway Company. 1 
 
 Sec. 485. Platform Accommodation. — On the arrival of a 
 train of the defendant company at the railway terminus, there 
 not being room for all the carriages to be drawn up to the 
 platform, some of the passengers were required to alight 
 upon the line beyond it, the depth from the carriage to the 
 ground being about three feet. In so alighting, a lady, the 
 wife of the plaintiff, instead of availing herself of the two 
 steps, with the assistance of a gentleman, jumped from the 
 first step to the ground, and sustained a spinal injury from 
 the concussion. The jury having found that the company 
 were guilty of negligence in not providing reasonable means 
 of alighting, and that the lady had not by any misconduct on 
 her part contributed to the injury, and having awarded her 
 500?., the court held that there was evidence to warrant their 
 finding, and declined to interfere with the amount of damages. 
 So, in Bridges v. The North London Railway Company, 2 an 
 
 1 18 0. B. n. s. 225 ; affirmed Exch. the duty of a railway company in this 
 Cli. L. R. 4 Exch. 117 ; 38 L. J. Exch. respect, see Caswell v. Boston, &c. R. 
 67. See also Harrold v. Great West- B. Co., 98 Mass. 194 ; Memphis, &c. 
 era Bail. Co., 14 L. T. Bep. 440; B. B. Co. v. Whitfield, 44 Miss. 466; 
 Adams v. Lancashire & Yorkshire Stewart v. International B. R. Co., 53 
 Bail. Co., 38 L. J. C. P. 277; Plant Tex. 289. This liability is not strictly 
 v. Midland Bail. Co., 21 L. T. Bep. to passengers, but exists as well in 
 836. favor of all persons who are lawfully 
 
 2 L. R. 5 C. P. 459 n. It is an at the station upon business. Thus in 
 invariable rule that railroad companies Tobin v. Portland, &c. B. B. Co., 59 
 must provide reasonable accommoda- Me. 183, the defendant was held liable 
 tions for passengers at their stations, to a hackmanfor an injury received by 
 and the safety of passengers must be him while carrying a passenger to the 
 consulted in those respects as well as depot for transportation, by stepping 
 in respect to their cars and machin- into a cavity in the platform, and occa- 
 ery. McDonald v. Chicago, &c. B. B. sioned solely by such unsafe condition 
 Co., 26 Iowa, 124. And it has been of the platform. 
 
 held gross negligence to leave a hole But where the company has provided 
 
 in the depot floor, Liseomb v. New safe platforms, &c, it is not liable for 
 
 Jersey, &c. B. B. Co., 6 Lans. (N. Y.) injuries resulting to a passenger by vol- 
 
 75, or not to provide suitable liglits to untarily alighting at some other point, 
 
 enable a passenger to see to get on Pennsylvania R. R. Co. v. Zebe, 33 
 
 and off the train. Patten v. Chicago, Penn. St. 318 ; Forsyth v. Boston & 
 
 &c. R. R. Co., 32 Wis. 524. Upon Albany R. R. Co., 103 Mass. 510. 
 
CARRIERS OP PASSENGERS. 505 
 
 action was brought by a widow to recover compensation for 
 the death of her husband through the defendants' negligence. 
 The facts of the case were, that a train of the defendants' 
 drew up at the Highbury Station, the last carriage, in which 
 the deceased was sitting, being in a tunnel, which terminated 
 at the station, and not at the platform. The name of the sta- 
 tion was called out by a porter, and the deceased immediately 
 got out and fell on the rails' and was killed. The jury ex- 
 pressed a strong opinion that, the train having stopped and 
 the name of the station having been called out, the passengers 
 had a right to presume that they might get out. Blackburn, 
 J., however, nonsuited the plaintiff, with leave to the plaintiff 
 to enter a verdict for 1,200Z. Upon motion, the Court of 
 Queen's Bench held that the calling out of the name of the 
 station did not necessarily entitle the passengers to get out, 
 and that, under all the circumstances of the case, the deceased 
 was not justified in doing so. 1 
 
 Sec. 486. invitation to alight. — The result of these cases 
 as bearing upon the question of the liability of railway com- 
 panies for accidents occurring at stations in consequence of 
 the drawing up of a train in such a way as to lead passengers 
 to suppose that they are invited by the railway company's ser- 
 vants to alight, seems to be this, that there must be sufficient 
 evidence to induce a reasonable man to believe that the train 
 is actually at the alighting platform, and that the passengers 
 are invited to alight, and at the same time there must be the 
 exercise of such care upon the part of the passenger as will 
 free him from the imputation of having contributed to the 
 accident of which he complains. 2 In one case, although the 
 train had drawn up at the platform, the name of the station 
 had not been called out, and some of the judges of the Court 
 of Common Pleas held that without some such announcement 
 a passenger was not justified in getting out of the carriage, 
 
 1 See also Petty v. Great Western 2 St. Louis, &o. R. R. Co. v. Can- 
 Rail. Co., 5 L. R. C. P. 461 n. trell, 37 Ark. 519 ; 40 Am. Rep. 105 ; 
 Other cases have come before tha court Commonwealth v. Boston & Maine R. 
 since this one in the Queen's Bench. R. Co., 129 Mass. 500 ; 37 A m - Rep. 
 See also Siner v. Great Western Rail. 382 ; also reporter's note, 384. 
 Co., 4 L. R. Exch. 117. 
 
506 THE LAW OF CARRIERS. 
 
 and that, having got out at a place where the platform was 
 some feet from the carriage, and having fallen and been in- 
 jured, she had been guilty of contributory negligence, which 
 relieved the railway company from the responsibility of its 
 servant the engine-driver. 1 In another case, however, where 
 a long train of the defendant company's was stopped at a plat- 
 form, so that part of it was alongside the parapet of a bridge, 
 and in the dark, the plaintiff, after the train had stopped and 
 the defendants' servants had called out the name of the sta- 
 tion, stepped upon the parapet, believing it was the platform, 
 and fell over, it was held by the same court that, in an action 
 brought to recover damages for the injuries sustained by the 
 fall, the judge was right in leaving it to the jury to determine 
 whether the circumstances amounted to an invitation to the 
 plaintiff to alight ; and further, that there was evidence of 
 negligence on the defendants' part to justify the verdict which 
 the jury found for the plaintiff. 2 
 
 Sec. 487. What will entitle Passenger to alight. — The 
 mere calling out of the name of the station would not of itself 
 entitle a passenger to alight if there were other circumstances 
 which led him to believe that the carriage was not at the plat- 
 form. Nor would the absence of all proof that the name of 
 the station had been publicly announced free a railway com- 
 pany from liability for the consequences of an accident occur- 
 ring through some defect in their platform arrangements, if 
 there had been other indications of an invitation, upon the 
 part of the defendants' servants, to the passengers to leave 
 their carriages, as, for instance, the opening of the carriage 
 
 1 Cockle v. London & South-West- the platform he voluntarily stepped 
 
 ern Rail. Co., 5 L. P. C. P. 457 ; 39 from it to cross the track to the high- 
 
 L. J. C. P. 226. In Forsyth v. Bos- way, and in doing so stepped into a 
 
 ton & Albany P.. P. Co., 103 Mass. cavity dug across the track for a cattle- 
 
 510, a passenger alighted from the guard, and was injured. The court 
 
 train, on a dark night, at a station held that the company was not liable, 
 
 of the defendant, on one of two plat- as he was not at the time in the exer- 
 
 forms extending along each side of cise of due care, 
 the track to a highway which, as the 2 Whittaker v. Manchester,' Shef- 
 
 plaintiff knew, crossed the railroad, field, & Lincolnshire Rail. Co., 22 L. T. 
 
 and having a step at the end next to N. s. 545. 
 the highway. Instead of keeping on 
 
CARRIERS OF PASSENGERS. 507 
 
 doors without the intimation that it was for the inspection of 
 tickets, or the removal by any such servant of part of the pas- 
 sengers' luggage or the like. But the question of what cir- 
 cumstances amount to an invitation to alight is clearly one 
 for a jury ; and although there seems to have been difficulty 
 felt in time past by some of our judges in reference to this 
 point of law, it seems impossible that any further doubt should 
 exist. 1 
 
 Sec. 488. Latent Defects. — One case of much importance 
 in the decision of all questions relating to the responsibility of 
 a carrier for an injury caused to a passenger, has been some- 
 what recently decided. The question in that case was as to 
 the effect of a latent defect upon the common-law duty devolv- 
 ing upon the carrier of passengers to exercise care and dili- 
 gence and skill. 2 There the casualty occurred through the 
 breaking of the tire of a wheel, owing to a flaw in the welding 
 caused by an air-bubble. There was evidence to the effect 
 that such a defect would sometimes occur in spite of the 
 greatest care on the part of the manufacturer ; that it was 
 impossible to discover it in the process of manufacture, or 
 afterwards, either by inspection or by experiment. Lush, J., 
 who tried the case, left it to the jury, directing them that if 
 the accident was occasioned by any neglect upon the part of 
 the defendants, they were to find for the plaintiff, but that if 
 it was occasioned by a latent defect in the wheel, such that 
 no care or skill on the part of the defendants could detect it, 
 the verdict should be for the defendants. The jury gave a 
 verdict for the defendants, and subsequently the direction of 
 the judge was held to be right by the Court of Queen's Bench, 3 
 
 1 Southern, &o. R. R. Co. v. Ken- taker v. Manchester, &c. Hail. Co., 22 
 driek, 40 Miss. 374 ; Jeffersonville, &c. L. J. sr. s. 545 ; Reynolds ». South- 
 R. R. Co. v. Hendrick's Adm'r, 26 Western Rail. Co., C. P. 16 Nov. 
 Ind. 228;Imhoffw. Chicago, &c. R. R. 1870; Praeger v. Bristol & Exeter 
 Co., 20 Wis. 344 ; Evansville, &c. R. R. Rail. Co., 23 L. T. ». s. 366 Exch. ; 
 Co. v. Duncan, 28 Ind. 441 ; Pair- Plant v. Midland Rail. Co., 21 L. t! 
 mount, &c. R. R. Co. v. Stutlev, 54 w. s. 836; Harrold v. Great Western 
 Penn.' St. 375 ; Puller v. Naugatuck Rail. Co., 14 L. T. n. s. 440. 
 
 R. R. Co., 21 Conn. 576. » Redhead v. Midland Rail. Co., 2 
 
 2 Cockle w.London & South-Eastern L. R. Q. B. 412. 
 Rail. Co., 5 L. R. C. P. 457 ; Whit- 
 
508 THE LAW OP CARRIERS. 
 
 and their judgment was affirmed by the Court of Exchequer 
 Chamber. 1 But in giving his judgment, Blackburn, J., ex- 
 pressed his opinion that, although carriers of passengers were 
 not insurers, like common carriers of goods, they were bound,, 
 at their peril, to supply carriages reasonably fit for the jour- 
 ney, and that it was not enough that they made every reason- 
 able effort to secure that result, if the carriage was, in fact, 
 not sufficient. 2 
 
 Sec. 489. The Degree and Kind of Care Necessary in 
 Carrier of Passengers. — In the Exchequer Chamber, how- 
 ever, the judges were unanimously of opinion that there 
 is no contract, either of general warranty or insurance, such 
 as exists between the carrier of goods and their owner, or 
 of a limited warranty, as to the vehicle being sufficient, 
 entered into by the carrier of passengers, and that the contract 
 of such a carrier, and the obligation which is imposed upon 
 him, is to take due care to carry a passenger. As we have 
 seen, however, the words " due care " have been held to imply 
 the exercise of reasonable skill and foresight. The above case 
 does a good deal to indicate the degree and kind of negligence 
 which will render a carrier liable, in case of an injury to his 
 
 1 4 L. E. Q. B. 379 ; Caldwell v. soundness as are usually applied by 
 New Jersey Steamboat Co., 56 Barb, men of the highest prudence and cau- 
 (N. Y.) 425. tion, and those skilled in such matters. 
 
 2 See upon this question, Pittsburg, Nashville, &c. B. B. Co. v. Jones, 9 
 &c. B. B.. Co. v. Thompson, 56 111. Heisk. (Tenn.) 27. And if the manufac- 
 138 ; Hegeman v. Western B. B. Co., turer was guilty of negligence in the 
 13 N. Y. 9 ; but see McPadden v. N. selection of materials for or in their 
 Y. Central R. B. Co., 44 N. Y. 478, construction, the decided weight of 
 ■where a different rule was adopted, authority sustains the position that the 
 and it was held that the company carrier will be liable the same as though 
 could not be held chargeable for an he had himself manufactured them, 
 injury resulting from a defect not dis- McPadden v. New York, &e. B. R. 
 coverable by human prudence and cau- Co., 44 N. Y. 478 ; Illinois Central 
 tion. See also, to same effect, Cro- R. R. Co. v. Phillips, 49 111. 234; 
 gan v. New York & Harlem B. R. Co., Bissell v. New York, &c. B. B. Co., 
 18 Alb. L. J. 70. But he is bound to 25 N. Y. 442 ; Meir v. Pennsylvania 
 exercise the highest degree of care in B. B. Co., 64 Perm. St. 225 ; Pitts- 
 the selection of his vehicles and appli- burg, &c. B. B. Co. v. Nelson, 51 
 ances, and to properly inspect them Ind. 150. As to the Scotch law, see 
 and apply such tests to ascertain their Bell's Com., 6th ed., p. 153. 
 
CARRIERS OP PASSENGERS. 509 
 
 passengers, and the case of Francis v. Cockerell J will make 
 this subject still clearer. In that case, which was an action 
 brought by the plaintiff against the defendant, who had been 
 admitted, on payment of money, to a building erected by the 
 defendant as a grand stand at a race meeting, and where, in 
 consequence of negligence and impropriety of the construction 
 of the stand it fell, and the plaintiff was injured, Hannen, J., 
 in delivering the judgment of the court said : " The nearest 
 analogy to this case is afforded by that of carriers of passen- 
 gers. The carrier is paid for providing the means of trans- 
 porting the passenger from place to place. The defendant 
 received payment for providing the means of supporting the 
 spectator at a particular place. This distinction does not ap- 
 pear to give rise to any difference in principle between the 
 contract to be implied in the one case and the other, as to the 
 safety of the means for carriage or support. In the present 
 case it is not found that the defendant was himself wanting 
 in • due care, and no" power to draw inferences of fact is given 
 to the court ; and if it were, we should not be able to draw the 
 inference that the defendant was personally guilty of any 
 want of care. He employed competent and proper persons, 
 who had efficiently executed similar work on previous occa- 
 sions. The circumstances that the defendant did not himself 
 survey, or employ any one to survey, the stand after it was 
 erected, does not in itself establish the charge of negligence, 
 for it does not appear that the defect was such as could have 
 been discovered on inspection ; and even if it had been, it can- 
 not be laid down as necessarily a want of care not to inspect, 
 although it would, in some circumstances, be evidence from 
 which a jury might properly find that due care had not been 
 taken. It becomes necessary, therefore, for us to consider 
 whether the contract by the defendant, to be implied from the 
 relation which existed between him and the plaintiff, was, that 
 due care had been used, not only by the defendant and his 
 servants, but by the persons whom he employed as independent 
 contractors to erect the stand. . . . Unless, therefore," he 
 went on to remark, " the presumed intention of the parties be 
 1 5 L. R. Q. B. 184 Bxch. Ch. 501. 
 
510 THE LAW OP CARRIERS. 
 
 that the passenger should, in the event of his being injured by 
 the breach of the manufacturer's contract, of which he has no 
 knowledge, be without remedy, the only way in which effect 
 can be given to a different intention is, by supposing that the 
 carrier is to be responsible to the passenger, and to look for 
 his indemnity to the person whom he selected, and whose 
 breach of contract caused the mischief. But not only do we 
 think that, when the reasons of justice and convenience on 
 the one side and on the other are weighed, the balance inclines 
 in favor of the plaintiff, but we are also of opinion that the 
 weight of authority is on the plaintiff's side." x 
 
 Sec. 490. The most Exact Diligence required of Carrier of 
 Passengers. — Hence the law seems to be that the carrier is 
 bound to use the most exact diligence, and is answerable for 
 any negligence, however slight. And this is true, not only of 
 a default which is due to the carrier himself, but of any default 
 of those employed by him, or of those from whom he has 
 purchased anything which he uses in the conveyance of passen- 
 gers, and which, from a want of skill in its construction, may 
 cause injury to any of the carrier's passengers. 2 Consequently 
 a railway company which carries passengers is as responsible 
 for the state of the rails, the condition of the points, and the 
 like, as it is for the safe construction of the carriages. 3 And 
 where an accident happens to a passenger upon the line, by 
 reason of the carriage breaking down or running off the rails, 4 
 or by mismanagement in driving, so that the train is run against 
 the permanent buffers at a terminus, 5 there is primd facie evi- 
 
 1 See Christie v. Griggs, per Sir The Golden Gate, 1 M'All. (U. S.) 
 James Mansfield, 2 Camp, at p. 81 ; 104. 
 
 Crofts v. Waterhouse, per Best, C. J., 8 Pym v. Great Northern Rail. Co., 
 
 3 Bing. at p. 321 ; Sharp v. Grey, per 2 P. & P. 619 ; Great Western Rail- 
 
 Aldeeson, B., at p. 459; Grote v. way of Canada, 1 Moore, P. C. n. s. 
 
 Chester & Holyhead Rail. Co., 2 Exch. 106 ; Grote ». Chester & Holyhead Rail. 
 
 251 ; Brazier v. Polytechnic Institu- Co., 2 Exch. 251. 
 tion, 1 P. & F., per Wightman, J., at 4 Dawson v. Manchester, Sheffield, 
 
 p. 508. & Lincolnshire Rail. Co., 5 L. T. s. s. 
 
 2 Daniel v. Metropolitan Rail. Co., 682. 
 
 3 L. R. C. P. 216, 591 j Philadel- 6 Burke v. Manchester, Sheffield, & 
 phia & Reading R. R. Co. v. Derby, Lincolnshire Rail. Co., 22 L. T. Rep. 
 14 How. (U. S.) 468; M'Guire v. 442. 
 
CARRIERS OP PASSENGERS. 511 
 
 dence from which a jury may infer negligence upon the part 
 of the railway company. 
 
 SEC. 491. Liability for Servants and Agents. — This doc- 
 trine as to the liability of a carrier for the want of due skill 
 and diligence upon the part of those who are employed by him 
 has been held to extend so as to make a railway company 
 answerable to a passenger for the negligence of another com- 
 pany, over whose line they have contracted to carry him ; and 
 that is true, whether there is an agreement between the two 
 companies, by which the passenger traffic of the one is* for- 
 warded by the other, which would make the latter the agent 
 of the former for that purpose, or whether the one company 
 has only running powers over the other's line. 1 In action 
 against a carrier for negligently carrying the plaintiff from 
 Milford Haven to Liverpool, it appeared that the defendant had 
 agreed to carry the plaintiff from the former to the latter of 
 these two places, and that the mode of transit provided was 
 that the plaintiff should come on to a hulk lying in the har- 
 bor of Milford Haven, and wait till a steamer came and took 
 him to Liverpool. On the hulk, close to a ladder down which 
 the plaintiff had to pass to reach the steamer, was a large 
 hatchway, which was negligently left unguarded and improp- 
 erly lighted, and the plaintiff fell through this hatchway and 
 was injured. The hulk belonged to a third party, and the 
 defendant had only acquired a right to use it for the purpose 
 of embarking passengers on his steamer. It was held in this 
 case that the defendant was answerable for all injury occur- 
 ring through the means of transit being improper, whether it 
 arose from the negligence of his own servants or other parties 
 who helped to provide the means of transit ; and the court even 
 went further, and intimated that the defendant, having invited 
 the plaintiff on to the hulk, was bound to protect him from 
 concealed dangers, and was liable for injury he sustained 
 
 1 Great "Western Rail. Co. v. Blake, 14 How. <TJ. S.) 468 ; Knight v. Port- 
 
 7 H. & N. 987 ; 31 L. J. Exeh. 346 ; land, &c. R. R. Co., 56 Me. 234 ; Rail- 
 
 Buxton v. North-Eastern Rail. Co., 3 road Co. v. Barrow, 5 Wall. (U. S.) 
 
 L. R. Q. B. 549 ; Thomas v. Rhymney 90 ; Wheeler v. San Francisco, &c. 
 
 Rail. Co., 5 L. R. Q. B. 226 ; Phila- R. R. Co., 31 Cal. 46. See Wood's 
 
 delphia & Reading R. R. Co. v. Derby, Law of Master and Servant, chap. xiii. 
 
512 THE LAW OP CARRIERS. 
 
 through the condition of the hatchway, even though it was 
 under the care of others and not his own servants. 1 
 
 SEC. 492. Contributory Negligence. — Concurrent Negligence. 
 — The circumstances connected with the conveyance of pas- 
 sengers are in many respects of such a nature as to alter the 
 relation of the carrier to the person with whom he contracts. 
 Not only may the carrier's negligence conduce to the injury 
 of a passenger, but a passenger's own negligence or foolhar- 
 dihood may bring him into such jeopardy that he may be 
 seriously injured or possibly lose his life. "Where, through 
 his own negligence, a passenger is injured, there of course can 
 be no responsibility upon the part of the carrier. It is not a 
 carrier's duty to restrain his passengers from injuring them- 
 selves. But nice questions arise when both the carrier and 
 the passenger have made default in that diligence and care 
 which are necessary to prevent accident, and when, in con- 
 sequence of such a combination of heedlessness, accident has 
 actually happened, and injury to the passenger has actually 
 been done. Where such a case occurs the passenger carinot 
 recover damages, for it would be wrong in principle to allow 
 him to complain to a court of law of an injury which his own 
 negligence has contributed to cause. 2 Although that is a cor- 
 rect statement, the principle requires modification to be accu- 
 rately true. Thus, if, although there has been negligence upon 
 the part of a passenger, the negligence upon the part of the 
 carrier is of such a nature that the person injured could not, 
 by the exercise of ordinary care, have avoided the conse- 
 quences, the carrier will still be liable. 3 And it might be 
 
 1 Johnw. Bacon, 5 L. R. C. P. 437; Lord Ellenbobottgh said: "If I 
 22 L. T. n. s. 477 ; and see Thomas v. place a man in such a situation that 
 Rhymney Rail. Co., 39 L. J. Q. B. he must, adopt a perilous alternative, I 
 141 ; 22 L. T. n. s. 297 ; Knight v. am responsible for the consequences." 
 Portland, &c. R. R. Co., 56 Me. 234. The American law on this subject is 
 
 2 Waite v. North-Eastern Rail. Co., precisely similar to the English. Eck- 
 El. Bl. & El. 719 ; 28 L. J. Q. B. 258 ; ert v. Long Island R. R. Co., 57 Barb. 
 Tuff v. Warman, 2 C. B. n. s. 740 ; (N. Y.) 555, at p. 560 ; Stokes v. Sal- 
 27 L. J. C. P. 322, Exch. Ch. ; Elower tonstall, 13 Pet. (TJ. S.) 1S1 ; Eldridge 
 v. Adam, 2 Taunt. 314. v. Long Island Rail. Co., 1 Sandf. 
 
 8 Bridge v. Grand Junction Rail. (N. Y.) 89; Buel v. N. Y. Central R. 
 Co., 3 M. & W. 244. See also R. Co., 31 N. Y. 314 ; Ingalls v. Bills, 
 Jones v. Boyce, 1 Stark. 204, where 9 Met. (Mass.) 1 ; Galena R. R. Co. v. 
 
CARRIERS OF PASSENGERS. 513 
 
 held in such a case that the passenger's negligence had not 
 really brought about the injury. Only then where the plain- 
 tiff's negligence is, as it were, an attribute of the injury and not 
 an accident, using these words in their logical sense, can his 
 negligence be regarded as excusing that of the defendant. 1 • 
 
 Again, if,- even after the negligence upon the part of the 
 passenger, the carrier could by the exercise of care have 
 avoided the consequences of such negligence, and he does not 
 use that care, and an accident and injury ensues, the negli- 
 gence of the former will not, under such circumstances, excuse 
 the negligence of the latter. 2 Where, therefore, the drivers 
 of two rival omnibuses were competing for passengers, the one 
 endeavoring to get before the other, and both driving at great 
 speed and trying to avoid a cart which got in their way, and 
 the wheel of the defendant's omnibus came in contact with the 
 projecting step of the omnibus on which the plaintiff was rid- 
 ing, and caused it to swing against a lamp-post, and the plain- 
 tiff to be thrown off and injured, it was held that he was not 
 disentitled to recover damages from the proprietor of the rival 
 omnibus by reason of the misconduct of his own driver. 3 So, 
 where the plaintiff in a steamboat was injured by the fall of 
 an anchor on it, caused by the collision with the steamboat of 
 the defendant, it was held that it was no defence to say that 
 the anchor may have been improperly stowed in the steamboat, 
 or that the plaintiff was standing on a part of the deck where 
 he ought not to have been. 4 
 
 Sec. 493. Duties which devolve and Rights which accrue to 
 Passenger Carriers. — Having distinguished between common 
 carriers of goods and carriers of passengers, and, as far as is 
 
 Yarwood, 15 III. 488 ; South-Western a Rigby v. Hewit, 5 Exch. 240 ; 
 
 R. R. Co. v. Paulk, 24 Ga. 356 ; Pair- Greenland v. Chaplin, 5 Exch. 247 ; 
 
 mount, &e. R. R. Co. t>. Stutlev, 54 Thorogood v. Bryan, 8 C. B. 115 ; 18 
 
 Penn. St. 375. L. J. C. P. 336. 
 
 1 Butterfleld v. Porrester, 11 East, 4 Greenland v. Chaplin, 5 Exch. 
 60; Clayards v. Dethick, 12 Q. B. 243. See Vennell v. Garner, 1 Cr. 
 446 ; Singleton D. Eastern Counties & M. 21. With reference to this sub- 
 Rail. Co., 7 C. B. h. s. 287. ject, see Kent v. Elstob, 3 East, 18; 
 
 2 Davis u. Mann, 10 M. & W. 549; Vanderplank v. Miller, 1 Moody & 
 and see, per Coleridge, J., in Sells v. M. 21 ; Lack v. Seward, 4 C. & P. 
 Brown, 9 C. & P. 601. 106. 
 
 33 
 
514 THE LAW OF CARRIERS. 
 
 necessary, alluded to the circumstances which will render the 
 latter liable in case of injury occurring to his passengers, it 
 will now be necessary to consider the various duties which 
 devolve, and rights which belong, to the carriers of passen- 
 gers. For greater convenience, we will in this place distin- 
 guish between certain classes of carriers, and. found our 
 distinction upon the kind of conveyance used by them, as we 
 shall see that this circumstance has been the cause of consid- 
 erable modification in their respective rights and duties. It 
 will only be necessary to distinguish between five such classes, 
 and these are : (1) coach proprietors ; (2) railway carriers ; 
 (3) hackney-coach or cab proprietors ; (4) tramway carriers ; 
 and (5) by means of ships. 
 
 Sec. 494. Duty to receive Passengers. — It is the duty of 
 any common carrier of passengers, as distinguished from a 
 private or special carrier of the same for hire, to receive all 
 persons who apply to him to be carried. In this respect there 
 is no difference between the principles which apply to a com- 
 mon carrier of goods and a common carrier of passengers. 1 
 The reasons which have led to the imposition of this duty are 
 the same in each case, viz. the injury which would arise to 
 the public if a person were allowed publicly to profess to carry 
 goods for all persons, and then refused the goods of certain 
 individuals. The same hardship would arise in the case of 
 passengers, and hence the duty imposed on each is similar. 
 At the same time it is limited in the same way : first, by the 
 condition that the carrier has room in his coach ; and, second, 
 that the passenger has tendered his fare. 2 It is, of course, 
 within the province of carriers of passengers to limit their lia- 
 bility by express contract. The principles which are appli- 
 cable to such contracts are, in the main, the same as those 
 which have been considered in relation to carriers of goods. 3 
 
 Sec. 495. Rule in Masiter v. Cooper. — The case of Masiter 
 
 1 East Tennessee, &e. R. R. Co. v. ' See ante, p. 75 et seq. ; and see 
 Nelson, 1 Coldw. (Tenn.) 272. Welles v. New York Central R. R. Co., 
 
 2 See Bretherton v. Wood, 3 B. & 26 Barb. (N. Y.) 641. 
 B. 54 ; Austin v. Great Western Bail. 
 
 Co., 2 Q. B. 442. 
 
CARRIERS OF PASSENGERS. 515 
 
 v. Cooper 1 is in point. There the declaration stated that the 
 defendant, being the owner of a chaise for hire, undertook to 
 carry the plaintiff, and it appeared that the plaintiff's luggage 
 had been tied on, and he had himself got into the chaise, when 
 the owner insisted on a previous payment of the hire, which 
 was charged exorbitantly. The plaintiff tendered him the 
 regular fare, and the sum which had at first been agreed upon 
 to be taken, but afterwards refused. Lord Ellenborough 
 held that, although the owner might make his own regulations, 
 or any special contract, and insist upon his own established 
 mode of dealing, yet after the person was in the chaise and 
 had tendered the money, it was too late to refuse to complete 
 the journey ; the owner of the chaise was bound to proceed, 
 and if the jury found the tender the plaintiff was entitled to 
 recover. In an American case in which this duty of a com- 
 mon carrier of passengers to receive the applicant was consid- 
 ered, Story, J., said : " There is no doubt that this steamboat 
 is a common carrier of passengers for hire, and therefore the 
 defendant, as commander, was bound to take the plaintiff as 
 a passenger on board, if he had suitable accommodations, and 
 there was no reasonable objection to the character or conduct 
 of the plaintiff. The question then really resolves itself into 
 the mere consideration whether there was, in the present case, 
 upon the facts, a reasonable ground for the refusal. The right 
 of passengers to a passage on board of a steamboat is not 
 an unlimited right. But it is subject to such' reasonable 
 regulations as the proprietors may prescribe for the due ac- 
 commodation of passengers, and for the due arrangement of 
 their business. The proprietors have not only this right, but 
 the further right to consult and provide for their own inter- 
 ests in the management of such boats, as a common incident 
 of their right of property. They are not bound to admit 
 passengers on board who refuse to obey the reasonable regu- 
 lations of the boat, or who are guilty of gross and vulgar 
 habits of conduct, or who make disturbances on board, or 
 whose characters are doubtful or dissolute or suspicious, and 
 d fortiori, whose characters are unequivocally bad. Nor are 
 
 1 4 Esp. 260. 
 
516 THE LAW OP CARRIERS. 
 
 they bound to admit passengers on board whose object is to 
 interfere with the interests or patronage of the proprietors, so 
 as to make the business less lucrative to them." x 
 
 Sec. 496. When Refusal to carry is a Ground of Action. — 
 But where the duty undoubtedly exists in relation to a par- 
 ticular person, and is not performed by the carrier, it is a 
 ground for action, and the individual is entitled to recover 
 damages. Thus, in Hamlin v. Great Northern Railway Com- 
 pany, 2 a person in business travelling to meet his customers, 
 booked himself by railway as a passenger from London to 
 Hull by a train which the company advertised to arrive at 
 Hull the same night. On reaching Grimsby, where the com- 
 pany's line ended, it was found that the Hull train had left; 
 and although the plaintiff might have reached Hull that night by 
 taking a special conveyance, and hiring a boat to cross the Hum- 
 ber, he remained at Grimsby and proceeded by train the next 
 morning, but he was too late to reach Driffield and other places 
 by the hour he had previously appointed for meeting his custom- 
 ers, and in consequence he was obliged to hire conveyances to 
 see some of his customers elsewhere, and was detained several 
 days waiting for the market days to see others. He brought 
 an action against the company for a breach of the contract to 
 carry him to Hull, and it was decided that he was entitled to 
 recover the amount of his hotel expenses at Grimsby, and the 
 railway fare next day to Hull, but was not entitled to recover 
 for any damage occasioned by his not reaching Driffield and 
 other places at the time he might have reached them if the 
 company had performed their contract. In Buckmaster v. 
 Eastern Counties Railway Company, 3 however, the plaintiff 
 recovered a reasonable sum for loss of market in consequence 
 of the failure of the company to perform the duty imposed upon 
 them of carrying, and the contract to carry at a certain time. 
 
 Sec. 497. statutory Regulations. — This duty to receive, 
 
 1 Jencks v. Coleman, 2 Sum. (U. S.) Mich. 520 ; Ansell v. Waterhouse, 2 
 
 224., 225 ; quoted in Story on Bailm. Chitty, 1 ; Tarbell v. Central Pacific 
 
 § 591a. See also Bennett «. Dutton, B. B. Co., 34 Cal. 616. 
 10 N. H. 481 ; Markham i>. Brown, 8 2 5 H. & N. 408 ; 2 Jur. h. s. 1122 ; 
 
 N. H. 523 ; Commonwealth v. Power, 26 L. J. Excli. 20. 
 7 Met. (Mass.) 596; Day v. Owen, 5 3 23 L. T. s. s. 471. 
 
CARRIERS OP PASSENGERS. 517 
 
 limited as it is, is incumbent upon all carriers of passengers ; 
 but there are certain statutory regulations with regard to 
 different classes of carriers of passengers, -which we cannot 
 do more than refer to in this place. The 2 & 3 Will. IV. 
 c. 120, which consolidated and amended the laws relating to 
 stage carriages, the number of passengers to be carried, the 
 amount of luggage, &c, was repealed by the 2 & 3 Vict. c. 66, 
 which substituted other duties for those imposed by the re- 
 pealed act ; but all the regulations and penalties respecting 
 the duties imposed by the former act are to apply to the duties 
 imposed by the latter. The second section of 2 & 3 Vict, 
 c. 66, makes a penalty exigible from any proprietor who marks 
 upon his stage carriage any inscription differing from the 
 license as to the number of passengers authorized to be car- 
 ried thereby. And those who wish to know more about the 
 duties that are payable by virtue of that act, and the regula- 
 tions and penalties which are made for the better regulation 
 of passenger traffic under that and the 2 & 3 Will. IV. c. 120, 
 must have recourse to the statute in question, as the limits of 
 our work do not permit of a more detailed account of these 
 enactments. 1 Several points, however, must be noted, par 
 ticularly in relation to stage-coach proprietors, before we pro- 
 ceed to a consideration of the duties which are common to all 
 those who carry persons, or to a consideration of the special 
 duties incident to railway conveyance, which is possibly the 
 most important branch of our present subject. 
 
 SEC. 498. Modification of Duties by Contract. — We have 
 seen that, although a carrier has common-law duties, he may 
 modify these by contract, and it is only when no such contract 
 exists that we must have recourse to common law, with a 
 view to ascertaining his duties. In a case, then, in which the 
 declaration stated that the defendant, being the owner of a 
 stage-coach, undertook to carry the plaintiff, her children, and 
 servants, together, in and by a stage-coach, and where evi- 
 dence was given that the whole inside of the coach was taken 
 for the plaintiff and her three daughters, and two outside 
 places for her servants, it was held that such evidence sup- 
 
 1 See also Metropolitan Public Carriage Act, 1869, 32 & 33 Vict. c. 115. 
 
518 THE LAW OP CARRIERS. 
 
 ported the declaration. It appeared that the defendant sent a 
 double-bodied coach, and refused to take the plaintiff and her 
 daughters unless one of them would travel in one body and 
 the others in the other body. And this was held to be a 
 breach of the defendant's agreement. 1 Where a passenger 
 has paid his fare, he has evidently a right to his seat, and he 
 does no injustice to the carrier if, instead of taking his seat at 
 the place of departure of the coach, having paid the fare for 
 the whole distance, he takes it at a stage or two nearer its 
 destination. Indeed, the advantage is on the side of the car- 
 rier, as his horses have less to carry. He has, therefore, no 
 right to fill up the place for which the fare has been paid 
 merely because it is not occupied at the place from which the 
 coach departs, or, at all events, he must be prepared to supply 
 the passenger with the seat when he demands it. This is, 
 however, not the case if the passenger, instead of paying the 
 whole fare, has only paid a deposit, or a sum for booking ; 
 for in that case the coach might, through the refusal of the 
 carrier to take other passengers, travel empty from place to 
 place, and the carrier thereby lose the full fares, and only 
 secure the deposits. 2 
 
 Sec. 499. Duty of Carrier of Passengers limited by his Ordi- 
 nary Trade and Custom. — Other Conditions. — As a common 
 carrier's duty is limited by the profession he has made, so it 
 is in the case of those who conduct passenger traffic. There- 
 fore the time and place at which the carrier is bound to re- 
 ceive passengers is to be judged of in relation to his ordinary 
 custom. That some such limitation as this is absolutely 
 necessary to the continuance of the trade is beyond doubt; 
 and as its continuance is a public convenience, the public must 
 be content to suffer such a modification of their right to be 
 received. Besides these, as we have seen, there are other con- 
 ditions which are precedent to the duty to receive, and these 
 are, that the person applying is a fit person and in a fit con- 
 dition 3 to be received, and that he will conform to the reason- 
 able regulations of the carrier, which have been made for the 
 
 1 Long w. Home, 1 C. & P. 610. s See as to hackney carriages and 
 
 a Kerr v . Mountain, 1 Esp. 27. small-pox patients, post. 
 
CARRIERS OP PASSENGERS. 519 
 
 purpose of procuring the greater convenience and comfort of 
 his passengers. All these conditions are exactly analogous to 
 those which exist in the case of common carriers of goods. 
 Thus the common carrier is only bound to receive such goods 
 as he has been in the habit of carrying. He is not bound to 
 receive goods packed in such a way that they will necessarily 
 cause damage to the other goods of which he is the bailee, 
 and he can make regulations as to booking, statement of value, 
 and the like. So a passenger may be refused if he is not a fit 
 person to be carried, — if he is in such a state that he will 
 insult or inconvenience other passengers, or if he refuses to 
 book himself, or take a ticket, or comply with reasonable 
 regulations. 1 
 
 We have already touched somewhat amply on the duties 
 associated with the performance of the contract in speaking of 
 negligence, but it will not be out of place to mention some of 
 the cases on this subject which particularly apply to stage- 
 coaches. Thus, in one case, it was held that every stage-coach 
 proprietor undertakes that his coach shall be sufficiently 
 secure to perform the journeys it undertakes, and that he 
 ought to examine its sufficiency before each journey, and that, 
 if he neglects to do so, and by the insecurity of the coach a 
 passenger is injured, an action is maintainable against the 
 coach proprietor for negligence. And this rule was held to 
 apply in a case in which the coach had been examined previ- 
 ously to the second journey before the accident, and though it 
 had been repaired at the coach-maker's only three or four 
 days before. 2 It was decided also, in a case we have already 
 had occasion to refer to, that if the accident happens from a 
 defect in the original construction, although the defect is out 
 of sight, and not discoverable upon ordinary examination, the 
 proprietor was liable. 3 In Mayor v. Humphries, 4 which was 
 
 1 See Tarbell v. Central Pacific R. York, &c. R. R. Co., 47 Barb. (N. Y.) 
 R. Co., 40 Vt. 88. 247 ; affirmed, 44 N. Y. 478. 
 
 2 Bremner v. Williams, 1 C. & P, 8 Sharp v. Grey, 9 Bing. 457; 2 
 414; McKinney v. Neil, 1 McLean M. & S. 621. See also Francis v. 
 (U. S.), 540 ; Peck v. Neil, 3 McLean Cockerell, L. R. 5 Q. B. 184 ; 39 L. J. 
 (U. S.), 22; Hanley v. Harlem R. R. Q. B. 113. 
 
 Co., 40 Vt. 88 ; McPadden v. New * 1 C. & P. 251. 
 
520 THE LAW OP CARRIERS. 
 
 an action against a coach proprietor by a passenger for injury 
 done to him in consequence of the overturning of the coach, 
 the declaration stated that the defendant negligently " drove, 
 conducted, and managed the coach ; " and it was held that, 
 as the negligence of the defendant was in sending out an in- 
 sufficient coach, the plaintiff was not entitled to recover. 
 
 Sec. 500. Evidence of Negligence in Case of Accident. — 
 Where a passenger pays his fare, he is entitled to expect rea- 
 sonable accommodation, and, as in the case of stage-coaches 
 the number of passengers to be carried is, as we have seen, 
 regulated by statute, the courts have, of course, discouraged 
 any breach of this statutory duty, and the way they have done 
 this is by deciding what shall be evidence of negligence in case 
 of accident. Christie v. Griggs 1 decided that it is primd facie 
 enough to prove negligence, if evidence is given of the coach 
 having broken down ; but if evidence is given that at the time 
 of the accident there were more passengers in the coach than 
 the statute allows, it is conclusive proof of negligence upon the 
 part of the proprietor. 2 But not only will the proprietor be 
 responsible for his own negligence, but he has been held re- 
 sponsible for the negligence or misconduct of his driver. 3 
 
 Sec. 501. Duty in Circumstances of Danger. — Where danger 
 is inevitable, not from such misconduct, but from the nature 
 of the road, or any other circumstance which may cause an 
 accident and consequent injuries to the passengers, without 
 any fault upon the part of the driver, he still has a duty to 
 perform if he would protect his master from liabilities in case 
 the accident should happen. His clear duty is to warn the 
 passengers of the risk they run, and of the nature of the 
 danger to be incurred before it is incurred ; and if he proceeds 
 without giving them this information, and therefore without 
 giving them the opportunity of taking such means as they 
 may think fit to avoid it, the proprietor will be liable for any 
 injury that they may suffer in consequence of an accident aris- 
 
 1 2 Camp. 79. see Aston o. Heaven, 2 Esp. 533, s. p. ; 
 
 2 Israel v. Clark, 4 Esp. 259. Christie v. Griggs, 2 Camp. 79 ; Crofts 
 8 White v. Boulton, Peake, 81; v. Waterhouse, 11 Moore, 133. 
 
 Dudley v. Smith, 1 Camp. 167. But 
 
CARRIERS OP PASSENGERS. 521 
 
 ing from the anticipated quarter. 1 So in a case where, through 
 the default of the coach proprietor in neglecting to provide 
 proper harness, the coupling-rein broke, and, one of the leaders 
 becoming ungovernable whilst the coach was on a descent, the 
 coachman drew the coach to one side of the road, where it 
 came in contact with some piles, one of which it broke, it ap- 
 peared that the plaintiff, imagining himself in imminent peril, 
 jumped off the coach and broke his leg. Lord Ellenborough, 
 in addressing the jury, left two questions to them : 1st. 
 Whether the proprietor was guilty of any default in omitting 
 to provide the safe and proper means of conveyance ; and, 2d. 
 Whether that fault was conducive to the injury, "for," he said, 
 " if it was not so far conducive as to create such a reasonable 
 degree of alarm and apprehension in the mind of the plaintiff 
 as rendered it necessary for him to jump down from the coach 
 in order to avoid immediate danger, the action is not main- 
 tainable." The jury found for the plaintiff. 2 
 
 SEC. 502. . Possible Avoidance of Accident may render Car- 
 rier Responsible. — Besides these circumstances, another may 
 be mentioned where, although the accident is not conduced 
 or caused by the negligence of the driver, yet, where but for 
 his negligence or want of skill, even when it was occurring, 
 the injury and result might have been avoided. Here, then, 
 if the driver does not, when in peril, take the safest course, 
 the owner will be responsible for the mischief which ensues, 
 for in such a case the driver's negligence contributed to the 
 injury. 3 
 
 Sec. 503. Rule in Crofts v. Waterhouse. — In Crofts v. 
 Waterhouse, 4 which was an action against a coach proprietor 
 for having by negligence overturned his coach and injured the 
 defendant while travelling by it, it was proved at the trial that 
 the defendant's coachman, in turning the corner on the right- 
 hand side of the road, had driven so near to the side as to 
 
 1 Dudley ». Smith, 1 Camp. 167. Mayhew o. Boyce, 1 Stark. 423 ; Card 
 See also Brookway v. Lasoala, 1 Edm. ». New York, &o. R. R. Co., 50 Barb. 
 (N. Y.) Sel. Cas. 135. (N. Y.) 39. 
 
 2 Jones v. Boyee, 1 Stark. 493. * 3 Bing. 319. 
 8 Jacksou v. Tollit, 2 Stark. 37; 
 
522 THE LAW OP CARRIERS. 
 
 gather a bank, by which the coach was overturned ; that, 
 though it was between two and three in the morning, there 
 was a full moon, and light enough to distinguish objects of all 
 kinds ; that the road was twenty-four feet wide, and, at the 
 time, clear of all obstructions, so that there was nothing to 
 prevent the coachman from keeping to the middle or even to 
 the left side of the road. The defence set up was, that between 
 the time of the disaster and the time when the coachman had 
 last passed the place where it happened (about twelve hours 
 before), the first of two cottages which stood close to the cor- 
 ner in question had been pulled down, and the rubbish left by 
 the side of the road ; that the coachman, mistaking the second 
 cottage for the first, and wishing to save his horses by going 
 as close to the corner as possible, drove out of the road over 
 the rubbish of the demolished cottage. The judge who tried 
 the cause (Littledale, J.) told the jury that, as there was no 
 obstruction on the road, the coachman ought to have kept 
 within the limits of it, and that, the accident having been occa- 
 sioned'by his deviation, the plaintiff was entitled to a verdict. 
 And in this case the court granted a new trial, on the ground 
 that the jury should have been directed to consider whether or 
 not the deviation was the effect of negligence. Again, in an 
 action against a coach proprietor for negligence, it appeared 
 that the plaintiff became an outside passenger, and that there 
 was luggage on the roof of the coach, and no iron railing 
 between the luggage and passenger; and that the plaintiff, 
 being seated with her back to the luggage, was, by a sudden 
 jolt, thrown from the coach, and her leg was broken. The 
 judge directed the jury to find for the plaintiff, if they were of 
 opinion that the injury sustained was occasioned by the negli- 
 gence of the defendant. The jury found for the plaintiff, and 
 stated that they so found, on account of the improper con- 
 struction of the coach, and of the luggage being on the seat. 
 Held, that the case was properly submitted to the jury, and 
 that the facts found specially by them amounted to negli- 
 gence. 1 
 
 1 Curtis v. Drinkwater, 2 B. & Ad. C. B. 115 ; 18 L. J. C. P. 336 ; Harris 
 169. See also Thorogood v. Bryan, 8 v. Costar, 1 C. & P. 636. 
 
CARRIERS OP PASSENGERS. 523 
 
 SEC. 504. Duties of Carriers as to Sufficiency of Convey- 
 ance. — These cases not only indicate when the carrier will be 
 liable for injuries sustained by his passengers, but they also 
 show what his duties as to conveyance are, and how these must 
 be performed. For the decision, as in Dudley v. Smith, 1 as to 
 when, and until when, he is liable for injuries occurring to his 
 passenger, also indicates the duration of his duty and the cir- 
 cumstances which will be held to absolve him from further 
 performance ; for, as it is a question of much importance, in 
 relation to goods, when delivery has taken place, and what 
 constitutes delivery, so, in relation to persons, it is of impor- 
 tance to ascertain when carriers have discharged all the duties 
 of their contract to the passenger. The custom of the carrier 
 must be regarded as ruling this in many cases ; but, of course, 
 the custom can be abrogated in any individual case by special 
 agreement. But it may be taken as a general rule, that with- 
 out any special agreement every passenger is understood to 
 contract for the usual reasonable accommodation. 2 We have, 
 in another place, considered the liability of a carrier of passen- 
 gers for the luggage of the persons he carries, as in relation to 
 that luggage the duties of the carrier are those of a common 
 carrier ; although, in relation to the person of his passenger 
 this extensive duty and liability has been limited, as we have 
 already seen. We may refer the reader to that earlier chap- 
 ter, and onlv allude by reference to some of the more impor- 
 tant decided cases. 3 
 
 Sec. 505. Railways. — Statutory Provisions. — We have 
 already forestalled something of what we feel bound to say 
 concerning railway carriers of passengers. Still the subject 
 is a large one, and a good deal remains to be said. We have 
 seen that a general supervision of railways is given to the 
 
 1 1 Camp. 167. BI. 207 ; 25 L. J. Q. B. 331 ; Hudson 
 
 2 Story on Bailm., 8th" ed., § 597. v. Midland Bail. Co., 10 B. & S. 504; 
 8 Ante, p. 67, oliap. iv. See also Becher v. Great Eastern Bail. Co., 22 
 
 Shepherd v. Great Northern Rail. Co., L. T. n. s. 299 ; 18 W. B. 627 ; Great 
 
 8 Exch. 30 ; 7 Bail. Cas. 310 ; Beau- Western Bail. Co. v. Talley, 19 W. B. 
 
 champ v. Pawley, 1 M. & Bob. 38 ; 154; 23 L. T. n. s. 413 C. P. ; Tunz 
 
 Brooke v. Pickwick, 4 Bing. 218 ; 12 v. South-Eastern Rail. Co., 4 L. B. 
 
 Moore, 447 ; Powles v. Hider, 6 El. & Q. B. 539. 
 
524 THE LAW OP CARRIERS. 
 
 Board of Trade, who are entitled to call for returns of the 
 aggregate traffic in passengers as well as in goods and cattle, 
 and who may demand particulars of all accidents attended 
 with personal injury on the railways, and also for tables of all 
 tolls, rates, and charges levied from time to time on such 
 traffic. 1 Besides these powers the Board has power to appoint 
 inspectors, 2 to disallow by-laws submitted to them for their 
 approval and confirmation, 3 and by certificate to direct prose- 
 cutions against railway copipanies for offences against any of 
 the Railway Acts. 4 Besides this, there is an important pro- 
 vision that any officer or agent of the railway company may 
 " seize and detain any engine-driver, guard, porter, or other 
 servant in the employ of the company, who shall be found 
 drunk when employed upon the railway, or commit any offence 
 against any of the by-laws, rules, or regulations of the com- 
 pany, or who shall wilfully, maliciously, or negligently do, or 
 omit to do, any act whereby the life or limb of any person 
 passing along, or being upon the railway, or the works thereof, 
 shall be, or might be, injured or endangered, or whereby the 
 passage of any of the engines, carriages, or trains, shall be, 
 or might be, obstructed or impeded." 5 
 
 SEC. 506. Penal Provisions. — Servants. — Against other 
 Persons. — The same act provides that any person so appre- 
 hended may be taken before a justice of the peace, without 
 warrant, and may be imprisoned, with or without hard labor, 
 for not more than two calendar months, or be fined not more 
 than 10Z. and be imprisoned, with or without hard labor, in 
 default of payment. 6 The 15th section enacts that any person 
 doing, or causing to be done, anything to obstruct any engine 
 or carriage, or to endanger the safety of persons conveyed in 
 the same, or who shall aid therein, is guilty of a misdemeanor, 
 and, on conviction, may be imprisoned, with or without hard 
 labor, for two years. 
 
 i 3 & 4 Vict. c. 97, § 1 ; 14 & 15 6 3 & 4 Vict. c. 97, § 13 ; 5 & 6 
 
 Vict. c. 64. Vict. c. 53, § 17- 
 
 2 3 & 4 Vict. c. 97, § 5 ; 7 & 8 6 3 & 4 Vict. c. 97, § 13. The 
 
 Vict. c. 85, § 15- magistrate may, if he chooses, send the 
 
 8 3 & 4 Vict, c 97, §§ 8, 9. case to quarter sessions — § 14. 
 
 * 3 & 4 Vict. c. 97, § 11. 
 
CARRIERS OF PASSENGERS. 525 
 
 SEC. 507. Provision for Inspection of every Railway. — By 
 another statute no railway, nor portion of any railway, may 
 be opened for public conveyance until after one calendar 
 month's notice, in writing, to the Board of Trade, of the com- 
 pany's intention to open the railway, nor until after ten days' 
 notice to the Board of the time when the railway will be com- 
 plete and fit for inspection. 1 And, after such inspection, the 
 Board may, if they think fit, postpone the opening. 2 Other 
 provisions for notices of accident, in case there has been 
 serious personal injury, 3 for gates at level crossings over high- 
 ways, turnpikes, and statute labor roads, for the closing of 
 such gates, 4 and for the speed of trains before arriving at such 
 crossings, 5 are contained in the same act. 
 
 SEC. 508. What is a "Passenger Railway." — It is further 
 provided that, if two thirds or more of the gross annual 
 revenue of a railway shall be derived from the carriage 
 thereon of coals, ironstone, or other metals or minerals, it 
 shall not be considered a passenger railway. 6 By another act 
 it is not lawful, and has not been lawful since the 18th August, 
 1846 (with a few exceptions), to construct any railway for the 
 conveyance of passengers on any gauge other than four feet 
 eight inches and a half in Great Britain, and five feet three 
 inches in Ireland ; 7 and now, by 5 & 6 Vict. c. 55, § 16, car- 
 riages of a greater weight than four tons may be used. ■ 
 
 Sec. 509. Necessity for Regulations. — Before going further 
 we may remark that, if certain regulations, external to those 
 made by a railway company for its own convenience, are 
 necessary, where the company was only a carrier of goods, 
 such or similar regulations are more urgently required where 
 the railway company undertakes the conveyance of passengers. 
 In every country, and in every code, life has always been 
 regarded as the first object ; property after life. Hence the 
 criminal laws have generally reached considerable maturity 
 
 1 5 & 6 Vict. c. 55, § i. See also Western Kail. Co., 29 L. J. C. B. 
 34 & 35 Vict. c. 78. 315. 
 
 2 Ibid. § 6. 6 8 & 9 Vict. c. 20, § 48. 
 8 Ibid. § 7. 6 5 & 6 Vict. c. 55, § 12. 
 4 Ibid. { 9 ; Marfell v. The South- 7 9 & 10 Vict c. 57, § 1. 
 
526 THE LAW OP CARRIERS. 
 
 before the civil laws were upon the fair way to perfection. 
 Now railway companies are not only, as carriers, intrusted 
 with the care of goods, but they become, as it were, the bailees 
 of hundreds of lives. That being the case, and it being true 
 that, owing to the speed of travelling, the smallest amount of 
 negligence is apt to lead to disastrous consequences, it became 
 necessary that there should be some other control than that 
 which they exercised over themselves, — as some apparently 
 praiseworthy attempt upon the part of directors to increase 
 the profits, and to raise the dividends, might lead to a catas- 
 trophe which, while it caused infinite loss and sorrow to many, 
 might not produce a commensurate injury to the company, — 
 and that control was supplied by statutory enactments, some 
 of which were to be rules for the safe conduct of such com- 
 panies, and others providing a vicarious authority which had 
 better means of administering a remedy and protecting the 
 public. Some of these we have already considered, but it 
 behooves us to dwell with more minuteness upon some of the 
 most important provisions which apply to passenger traffic 
 which are made by other acts. 
 
 Sec. 510. 7 & 8 Vict. c. 85. — The 6th section of the 7 & 8 
 Vict. c. 85, after reciting that, " whereas it is expedient to 
 secure to the poorer class of travellers the means of travelling 
 by railway at moderate fares, and in carriages in which they 
 may be protected from the weather," enacts, " That on and 
 after the several days hereinafter specified, all passenger rail- 
 way companies which shall have been incorporated by any act 
 of the present session, or which shall be hereafter incorporated, 
 or which, by any act of the present or any future session, have 
 obtained or shall obtain, directly or indirectly, any extension 
 or amendment of the powers conferred upon them respectively 
 by their previous acts, or have been or shall be authorized to 
 do any act unauthorized by the provisions of such previous 
 acts, shall, by means of one train at the least to travel along 
 their railway from one end to the other of each trunk or 
 branch or junction line belonging to or leased by them, so 
 long as they shall continue to carry other passengers over such 
 trunk, branch, or junction line, once at the least each way on 
 
CARRIERS OP PASSENGERS. 527 
 
 every week-day except Christmas Bay and Good Friday (such 
 exceptions not to extend to Scotland), provide for the convey- 
 ance of third-class passengers to and from the terminal and 
 other ordinary passenger stations of the railway, under the 
 obligations contained in the several Acts of Parliament, and 
 with the immunities applicable by law to carriers of passen- 
 gers by railways, and also under the following conditions (that 
 is to say) : — 
 
 " Such train shall start at an hour to be from time to 
 time fixed by the directors, subject to the approval 
 of the Lords of the Committee of Privy Council 
 for Trade and Plantations. 
 " Such train shall travel at an average rate of speed 
 not less than twelve miles an hour for the 
 whole distance travelled on the railway, includ- 
 ing stoppages. 
 " Such train shall, if required, take up and set down 
 passengers at every passenger station which it 
 shall pass on the line. 
 " The carriages in which the passengers shall be con- 
 veyed by such train shall be provided with seats, 
 and shall be protected from the weather, in a 
 manner satisfactory to the Lords of the said Com- 
 mittee. 
 " The fare or charge for each third-class passenger by 
 such train shall not exceed one penny for each 
 mile travelled. 1 
 " Each passenger by such train shall be allowed to take 
 with him half a hundredweight of luggage, not 
 being merchandise or other articles carried for 
 
 1 If the distance is a portion of a no fare shall be deemed excessive if 
 
 mile, and does not amount to one mile, the same shall not exceed the rate of 
 
 the fare for such portion of a mile may one farthing for each entire quarter of 
 
 be one penny ;, or when such distance a mile travelled. 21 & 22 Vict. c. 71, 
 
 amounts to one mile, or two or more \\ 1 & 2 ; made perpetual by 23 & 24 
 
 miles, and a portion of another mile, "Vict. c. 41. See Rice v. Dublin & 
 
 the fare or charge for such portion of, Wicklow Rail. Co., 8 Ir. C. L. R. 
 
 if the same amounts to or exceeds one- 160 C. P. 
 half mile, may be one halfpenny. And 
 
528 
 
 THE LAW OP CARRIERS. 
 
 hire or profit, -without extra charge, and any ex- 
 cess of luggage shall he charged by weight at a 
 rate not exceeding the lowest rate of charge for 
 passengers' luggage by other trains. 
 " Children under three years of age accompanying pas- 
 sengers by such train shall be taken without any 
 charge ; and children of three years and upwards, 
 but under twelve years of age, at half the charge 
 of an adult passenger." 
 SEC. 511. The Effect of these Provisions considered. — The 
 effect of a portion of this section was considered in the case 
 of The Great Northern Railway Company v. Shepherd. 1 This 
 was an action to recover damages amounting to 40Z. 3s. 2d., 
 and it appeared that Shepherd, the plaintiff, in County Court 
 of Yorkshire, at Sheffield, had taken a third-class ticket of the 
 defendants at the Great Northern Railway Station at Sheffield, 
 to go to London and return to Sheffield for the sum of 5s. 
 During his stay in London he purchased a quantity of ivory 
 handles for table-knives. During his return journey to Shef- 
 field, a collision took place. The plaintiff and his wife were 
 both hurt, and the former, upon being assisted into another 
 train which was to convey them to Sheffield, spoke to one of 
 the railway porters about the luggage, who told him not to 
 make himself uneasy, it would be all right. It did not turn 
 out to be so, however ; for although some portions of his lug- 
 gage were afterwards forwarded to him, a bag containing the 
 ivory handles never reached him. The act above quoted 
 allows a passenger to carry luggage of 56 lbs. in weight, if it 
 is not merchandise, and it was held that under the act the 
 plaintiff and his wife, when travelling together, were entitled 
 to 112 lbs. of personal luggage. The train in which they 
 travelled, however, was an excursion train, and did not seem 
 to be subject to the regulations in force as to third-class 
 trains ; consequently it was held that the company were not 
 liable as at common law for the loss of the goods, that the 
 fare for passengers included only personal luggage, and that, 
 as the goods had been delivered and carried ostensibly as lug- 
 
 1 10 Exch. 30 j 24 L. J. Exch. 286. 
 
CARRIERS OF PASSENGERS. 529 
 
 gage, when actually they were merchandise, the carrier was 
 not liable. Parke, B., said : " The provision of the Act of 
 Parliament is equivalent to notice that the company will carry 
 with each passenger 56 lbs. of luggage, but not merchandise. 
 It is necessary to ascertain whether or no the company were, 
 with respect to persons travelling by the excursion train, en- 
 tirely released from the conditions imposed by the statute 
 upon third-class passengers. If they were, they might, never- 
 theless, contract to carry under the obligations relating to 
 parliamentary trains, in which case it is clear the plaintiff 
 could not recover. But if the matter was left at . large, the 
 defendants were under the ordinary obligations of carriers at 
 common law." The question as to what constitutes personal 
 luggage need not be again referred to in this place. 1 
 
 Sec. 512. 7 & 8 Vict. c. 85, § 10. — The 10th section of 
 the same act 2 provides, " that whenever any railway company, 
 subject to the hereinbefore-mentioned obligation of running 
 cheap trains, shall, from and after the days hereinbefore speci- 
 fied on which the said obligation is to accrue, run any train or 
 trains on Sundays for the conveyance of passengers, it shall, 
 under the obligations contained in its Act or Acts of Parlia- 
 ment, and with the immunities applicable by law to carriers 
 of passengers by railway, by such train each way, on every 
 Sunday, as shall stop at the greatest number of stations, 
 provide sufficient carriages for the conveyance of third-class 
 passengers at the terminal and other stations at which such 
 Sunday train may ordinarily stop, and the fare or charge for 
 each third-class passenger by such train shall not exceed one 
 penny for each mile travelled." 3 By the 8 & 9 Vict. c. 20, 
 § 86, under the head, " with respect to the carrying of passen- 
 gers and goods upon the railway, and the tolls to be taken 
 thereon," it is enacted that " it shall be lawful for the com- 
 pany to use and employ locomotive engines, or other moving 
 
 1 But see Mytton v. Midland Kail. * Almost all railway companies now 
 Co., 28 L. J. Exch. 385 ; Harrison v. provide carriages for the convenience 
 London & Brighton Rail. Co., 29 L. J. of third-class passengers in connection 
 Q. B. 209. with all their trains. 
 
 * 7 & 8 Vict. c. 85. 
 
 34 
 
530 
 
 THE LAW OF CARRIERS. 
 
 power, and carriages and wagons to be drawn or propelled 
 thereby, and to carry and convey upon the railway all such 
 passengers and goods as shall be offered to them for that pur- 
 pose, and to make such reasonable charges in respect thereof 
 as they may from time to time determine upon, not exceeding 
 the tolls by the special act authorized to be taken by them." 
 And the 89th section provides, as we have seen above, that 
 " 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 pro- 
 tection or privilege which common carriers or stage-coach 
 proprietors may be entitled to ; but, on the contrary, the com- 
 pany shall at all times be entitled to the benefit of every such 
 protection and privilege." 
 
 Sec. 513. Travelling without having paid Fare. — By the 
 103d section, it is provided that, " if any person travel or at- 
 tempt to travel in any carriage of the company, or of any 
 other company or party using the railway, without having 
 previously paid his fare, and with the intent to avoid payment 
 thereof, or if any person, having paid his fare for a certain 
 distance, knowingly and wilfully proceed in any such carriage 
 beyond such distance, without previously paying the additional 
 fare for the additional distance, and with the intent to avoid 
 payment thereof, or if any person knowingly and wilfully 
 refuse or neglect, on arriving at the point to which he has 
 paid his fare, to quit such carriage, every such person shall 
 for every such offence forfeit to the company a sum not 
 exceeding 40«." 
 
 Sec. 514. Apprehension and Detention of Offender. — The 
 104th section enacts that, " if any person be discovered either 
 in or after committing or attempting to commit any such 
 offence as in the preceding enactment mentioned, all officers 
 and servants and other persons on behalf of the company, or 
 such other company or party as aforesaid, and all the con- 
 stables, jailers, and peace officers may lawfully apprehend and 
 detain any such person until he can be conveniently taken be- 
 
CARRIERS OP PASSENGERS. 531 
 
 fore some justice, or until he be otherwise discharged by due 
 course of law." Those provisions have to some extent been 
 made more exact in their application to circumstances, by 
 certain cases which have come before the courts since these 
 acts were passed, and we may say that that is almost the 
 invariable result of the decision of cases following upon a 
 statute. 
 
 SEC. 515. Payment of Pare for Longer Distance. — Thus, 
 under these acts it has been decided that, if a passenger pays 
 the fare demanded of him for a longer distance, he cannot be 
 apprehended for the non-payment of the fare for a shorter 
 distance, although the latter may be higher than the former, 
 and although he was aware of this difference between the 
 charges. 1 As the acts are to be interpreted strictly as against 
 the company, they will not — under a by-law, which gives 
 them the power to recover the fare, should it be refused, or 
 should the passenger refuse to deliver up his ticket, by proceed- 
 ing before a magistrate — be entitled to apprehend a passenger 
 on such refusal. 2 We shall have a subsequent opportunity of 
 speaking more fully of the passenger's duty with regard to 
 the delivery of his ticket and other matters, but in this place 
 it may be said generally, that, if the fare has been paid, the 
 company will, if they apprehend a passenger merely on the 
 ground that he refuses, or omits, or is unable to give up his 
 ticket when it is demanded of him by the company or their 
 servants, be liable to an action of false imprisonment. 3 And 
 in such cases an action either for false imprisonment, 4 for 
 assault and battery, 5 or for any negligent or malicious wrong, 6 
 according to the circumstances, but not for malicious prosecu- 
 tion, 7 will lie against a railway company, if there be evidence 
 
 1 Rex v. Frere, 24 L. J. M. C. 68. 4 Roe v. Birkenhead Rail. Co., 7 
 
 2 Tollemache v. London & South- Exch. 36 ; 21 L. J. Exch. 9. 
 Western Rail. Co., 26 L. T. 222. * Eastern Counties Rail. Co. v. 
 
 8 Eastern Counties Rail. Co. v. Broom, 6 Exeh. 314 ; 20 L. J. Exch. 
 
 Broom, 6 Exeh. 314 ; 20 L. J. Exch. 196. 
 
 196 ; Gofl v. Great Northern Rail. Co., e Green v. London General Omnibus 
 
 30 L. J. Q. B. 148. See also Chilton Co., 24 L. J. C. P. 13. 
 
 v. London & Croydon Rail. Co., 16 7 Stevens v. Midland Rail. Co.. 10 
 
 M. & W. 212. Exch. 352 ; 23 L. I. Exch. 328. 
 
532 THE LAW OF CARRIERS. 
 
 that the servant was acting under the express or implied au- 
 thority of the railway company, 1 or that the company subse- 
 quently approved or ratified his act. 2 Some of the provisions 
 of the Regulations of Railways Act, 1868, 3 still remain to be 
 noticed. 
 
 Sec. 516. Provisions for Safety of Passengers. — Communi- 
 cation with Guard. — The 22d section of that act makes- it 
 necessary, with a view to the safety of the passengers, after 
 the 1st of April, 1869, for every company to provide and 
 maintain in working order, in every passenger train that 
 travels more than twenty miles without stopping, " such 
 efficient means of communication between the passengers 
 and the servants of the company in charge of the train, as 
 the Board of Trade may approve." And it also enacts that 
 " any passenger who makes use of the said means of com- 
 munication without reasonable and sufficient cause, shall be 
 liable for each offence to a penalty not exceeding five pounds." 
 It also contains other provisions for the safety of passengers, 
 for preventing trespasses on lines, 4 and for the removal of 
 trees which are in danger of falling. 6 Besides the safety, the 
 convenience of the passengers . is had regard to ; for this act 
 makes it necessary for all railway companies — except the 
 Metropolitan Railway Company — to provide smoking com- 
 partments for each class of passengers in every passenger 
 train, unless they are exempted by the Board of Trade. 6 
 
 Sec. 517. The Necessity for Exceptional Legislation for Rail- 
 way Companies. — The necessity of many of these regulations 
 must have struck every one who had become aware of their 
 existence. The length of the journey taken, the isolation of 
 a passenger in one compartment of a railway carriage, owing 
 to the rapidity of motion and the noise caused by the train, 
 the tendency of companies to neglect the comparatively unre- 
 
 i Goff v. Great Northern Bail. Co., 8 31 & 32 Vict. c. 119. See also 
 
 30 L. J. Q. B. 148 ; Roe v. Birken- 34 & 35 Vict. c. 78. 
 
 head Rail. Co., 7 Exch. 36 ; 21 L. J. 4 Ibid. \ 23. 
 
 Exch. 9. 5 Ibid. § 24. 
 
 2 Eastern Counties Rail. Co. v. • Ibid. § 20. 
 Broom, supra. 
 
CARRIERS OP PASSENGERS. 533 
 
 munerative passenger traffic which takes place between small 
 centres and requires cheap conveyance, the liability which 
 railway companies are under to be fraudulently dealt with, 
 and the many occasions which render such dealing easy upon 
 the part of passengers, — all these drew attention to the 
 necessity of exceptional legislation for railway companies as 
 to many of the incidents of passenger traffic. At the same 
 time it has been the desire of the legislature to interfere as 
 little as possible with the rights and privileges of railway com- 
 panies, and the exceptional legislation which has taken place 
 has been carefully limited by a consciousness of the danger 
 which arises in connection with it, of overdoing it. And, as 
 we have seen, the 8 & 9 Vict. c. 20, § 89 (Railway Clauses 
 Act, 1854), expressly retains in favor of railway carriers all 
 protection and privileges which common carriers or stage- 
 coach proprietors are entitled to. 1 
 
 It now becomes incumbent upon us to consider some of the 
 cases which relate to the rights and duties of the carriers of 
 passengers, when they carry by rail, at least in so far as these 
 differ from the ordinary common-law duties and privileges 
 already described. 
 
 Sec. 518. Contract. — First. With regard to the Contract. 
 — In a case in which it appeared that the plaintiff took a ticket 
 at Cardiff, to be carried by the Great Eastern Railway Com- 
 pany to Newcastle-upon-Tyne, vid the Midland Railway, and 
 the complaint was, that the train from Milford, by which he 
 was to proceed on that journey, instead of arriving at Cardiff 
 so as to start at its accustomed time, 4.34 p. si., did not reach 
 Cardiff until 6 o'clock, and in consequence passengers wish- 
 ing to go through to Newcastle missed the corresponding train 
 at Gloucester, and could not be carried on until the evening of 
 the next day. The gravamen, therefore, was, that the com- 
 pany were guilty of a breach of duty or a breach of contract, 
 
 1 As in the case of carriers of goods, importance of this will be seen from 
 
 questions relating to carriers of pas- the case of Kent v. Great Western 
 
 sengers by railway must be decided in Rail. Co., 4 Bail. Cas. 699 ; Gartonw. 
 
 connection with and by reference to Great Western Rail. Co., 31 L. T. 
 
 the special acts of the company. The Rep. 233. 
 
534 THE LAW OP CARRIERS. 
 
 because the Milford train arrived at Cardiff an hour and a 
 half behind its usual time. 
 
 Sec. 519. what amounts to a Contract. — In giving judg- 
 ment, Erle, C. J., said : "lam of opinion that the mere taking 
 of a ticket does not amount to a contract upon the part of the 
 railway company, or impose upon them a duty, to have a train 
 ready to start at the time at which the passenger is led to 
 expect it ; and in order to maintain an action it is incumbent 
 on the plaintiff to show either a breach of contract or a breach 
 of some legal duty. If there were any such contract here, it 
 would appear from the time-bills published by the company, 
 and if the plaintiff (whose duty it was to do so) had put in 
 the time-bill, we should have seen what the real contract was, 
 viz. that the company do not warrant that their trains shall 
 arrive with punctuality at the different stations. There clearly 
 was nothing like a special contract in the talk with the officials 
 on the platform at Cardiff. A mere casual conversation with 
 a person whose duty it is to open and shut the carriage doors, 
 or the like, cannot amount to evidence of a special contract 
 with a company. It is perfectly consistent with all the evi- 
 dence here that the company have done all they contracted 
 to do." 1 
 
 SEC. 520. Civil Wrong and Pure Wrong. — Again, where a 
 servant took a ticket and travelled on the defendants' railway, 
 and was injured during the journey through the negligence of 
 the defendants, and his master brought an action against the 
 company for the loss of the servant's services through the de- 
 fendants' negligence, it appearing that there was no contract 
 between the railway company and the plaintiff, it was held 
 that, inasmuch as the servant was injured, not by a simple 
 wrong, but by a wrong arising out of a breach of duty, im- 
 posed upon the railway company by their contract with the 
 servant, the action was founded on contract, and consequently 
 would not lie. 2 What distinguished this case from the many 
 in which masters have recovered for the loss of services of a 
 
 1 Hurst v. Great Western Rail. Co., s Alton v. Midland Rail. Co., 19 
 19 C. B. n. s. 310 ; 11 Jur. n. s. 730 ; C. B. u. s. 213 ; 34 L. J. C. P. 292 ; 
 34 L. J. C. P. 264. 13 W. R. 918. 
 
CARRIERS OP PASSENGERS. 535 
 
 servant, 1 was the fact that this was a civil wrong which was 
 complained of, and not a pure wrong. These cases indicate 
 the nature of the transaction which must take place before a 
 railway company can be held to have contracted to carry an 
 individual, and before an action will lie for its breach. The 
 first of these established the rule that a passenger taking a 
 ticket from a railway company is not such an act as will 
 amount to a contract with the company so as to impose the 
 duty to have a train ready to start at the time the passenger was 
 led to expect ; but the case of Denton v. The Great Northern 
 Railway Company 2 is pertinent to this subject, and indicates, 
 from the distinction which is to be drawn between it and that 
 of Hurst v. The Great Western Railway Company, 3 as precisely 
 as could well be, the law upon this particular point. In that 
 case, which was an action brought by the plaintiff against 
 the defendant company for not running a train according to 
 their time-tables, it appeared that the time-tables published 
 by the company stated that a train would leave Peterborough, 
 for Hull, at 7.20 p. m. It also appeared that the whole line, 
 from the former to the latter of these places, was not the prop- 
 erty of the company, and that the part from Milford Junction 
 to Hull belonged to the North-Eastern Railway Company. It 
 was proved that on the 27th of February (1855), prior to the 
 publication and affixing up at the stations of the company's 
 time-tables for the month of March, but after the same had 
 been printed and issued, the latter railway company gave the 
 company sued notice of their intention to cease running the 
 train from Milford to Hull which carried on the passengers 
 who arrived at Milford by the train leaving Peterborough at 
 7.20. The time-table contained the following notice: "The 
 companies make every exertion that the trains shall be punc- 
 tual, but the arrival and departure at the times stated will not 
 be guaranteed, nor will the companies hold themselves respon- 
 
 1 HaU v. Hollander, 4 B. & C. 660 ; 482 ; Gilbert v. Schwenck, 14 M. & W. 
 
 7 D. R. 133 ; Martinez v. Gerber, 3 488. 
 
 M. & G. 88 ; 3 Scott, N. R. 386 ; 2 5 El. & Bl. 860 ; 25 L. J. Q. B. 
 
 Gougli v. Brian, 2 M. & W. 770; 129; 2 Jur. n. s. 185. 
 
 Hodsoll v. StaUebrass, 11 Ad. & E. 8 19 C. B. n. s. 310 ; 34 L. J. C. P. 
 
 301; 3 P. & D. 200; 8 Dowl. P. C. 264. 
 
536 THE LAW OP CAEEIERS. 
 
 sible for delay, or any consequence arising therefrom." Lord 
 Campbell, C. J., in giving judgment in this case, said: "It 
 seems to me that the representations made by railway com- 
 panies in their time-tables cannot be treated as mere waste- 
 paper, and in the present case I think the plaintiff is entitled 
 to recover on the ground that there was a contract with him, 
 and also on the ground that there was a false representation 
 by the company. It seems to me that if the company prom- 
 ised to give tickets for a train running at a particular hour, to 
 a particular place, to any one who would come to the station 
 and tender the price of the ticket, it is a good contract with 
 any one who so comes. I take it to be clear that the issuing of 
 the time-tables in this way amounts, in fact, to such a prom- 
 ise ; any one who reads them would so understand them. 
 Then, is it a good contract in law ? The consideration is one 
 which is a prejudice to the person who makes his arrangements 
 with a view to the fulfilment of the contract, and comes to the 
 station on the faith of it." Wightman, J., agreed that the 
 publication of these time-tables amounted to a promise to any 
 one of the public who would come to the station and pay for a 
 ticket that he should have one by a train at a particular hour. 
 And he held that the provision appended to the time-tables 
 did not protect the company, under the circumstances ; and he 
 said : " But whether there be a contract or not, the defendants 
 are liable, as having induced the plaintiff, by a continued 
 knowingly false representation, to believe that there was a 
 train at seven to Hull, which he, believing, acted upon to his 
 prejudice. All essentials for an action for false representation 
 ase here. The representation is untrue ; it is known by the 
 person making it to be untrue ; it is calculated to induce the 
 plaintiff to act, and he, believing it, is induced to act accord- 
 ingly." Crompton, J., agreed that there was ground for an 
 action for deceit, but held that there was no contract, although 
 the company were liable for a breach of their public duty as 
 carriers. 
 
 SEC. 521. How Terms of Contract to be ascertained. — It 
 will be remembered that in the other case referred to the 
 plaintiff neglected to put in the company's time-tables, and 
 
CARRIERS OF PASSENGERS. 537 
 
 that Erle, C. J., said : " If the plaintiff had put in the time-bill 
 we should have seen what the real contract was, — vis. that 
 the company do not warrant that their trains shall arrive with 
 punctuality at the times indicated at the different stations." 
 It appears, then; that in all the contracts made between rail- 
 way companies and persons who are to be carried by them as 
 passengers, reference will be made to the company's time- 
 tables, with a view to ascertaining the exact terms of the con- 
 tract, and it is evident that these time-tables are a part of the 
 public profession of the railway carriers, which, as we have 
 repeatedly seen, indicates the extent and character of their 
 business. There seems to be no reason for distinguishing in 
 this respect between railway carriers and others, and where 
 there is no ground for distinction, any arbitrary modification 
 of the rights and duties of either class would be impolitic and 
 unjust. But such modification has not been made, and the 
 law upon this matter is somewhat precise. 
 
 SEC. 522. Rule in The Great Northern Railway Company v. 
 Harrison. — In the case of The Great Northern Railway Com- 
 pany v. Harrison, 1 it appeared that the defendants were in the 
 practice of allowing the reporters of a London ' newspaper 
 (" Bell's Life " newspaper), when going to country races on the 
 defendants' line, for the purposes of framing their reports, to 
 travel on the defendants' line carriage free. The reporter was 
 for such purpose supplied with a ticket by the company, which 
 had written upon it the name of a person in the reporting de- 
 partment. The ticket also purported on the face of it to be 
 not transferable, and there was also a memorandum on it to 
 the effect that any party other than the person named in it 
 using the pass would be liable to the penalty which a passen- 
 ger incurs by travelling without having paid his fare, or that 
 he should be liable to pay the fare ; but it did not distinctly 
 appear which of these two liabilities was stated in the memo- 
 randum, and, if the former, it did not appear what the penalties 
 were which were alluded to. The plaintiff acting bond fide, 
 and going on the business of the journal, and entitled by the 
 usage to have the benefit of a ticket with his name on it, went 
 
 1 10 Exch. 376; 2 C. L. R. 1136 ; 23 L. J. Exch. 308. 
 
538 THE LAW OP CARBIERS. 
 
 to the station with a ticket such as that described. His 
 name, however, was not upon it, but there was the name of 
 another person who, however, was a reporter, and in the same 
 department with himself. The plaintiff showed this ticket to 
 the porter at the station, whose business it was to examine pas- 
 sengers' tickets, who said that it was all right, and placed the 
 plaintiff in a carriage. There was no distinct evidence, how- 
 ever, that the porter knew personally who the plaintiff was. 
 It appeared that the plaintiff and other reporters had, on sev- 
 eral previous occasions, travelled with similar tickets not bear- 
 ing the names on them of those who used them, and there was 
 evidence that the persons whose names were on the tickets 
 were personally known to some of the officers and servants at 
 the station. In an action by the plaintiff against the company 
 for an injury received on their line whilst travelling in one of 
 the company's carriages, in which the declaration alleged that 
 " the plaintiff then lawfully was," and which allegation was 
 denied by the plea, the question having been left to the jury, 
 and a verdict having been found for the plaintiff, it was held 
 on error, on a bill of exceptions, that there was evidence for 
 the jury in support of the issue, and that the question was 
 rightly left to them. 
 
 Sec. 523. Railway Companies do not warrant Carriages 
 Road-worthy. — "We have already, in speaking of the question 
 of negligence, alluded to some of the incidents of the contract 
 which is entered into between a railway company and a passen- 
 ger, and have seen that, according to the doctrine laid down 
 in Redhead v. Midland Railway Company, 1 railway compa- 
 nies, as common carriers of passengers by land for hire, do 
 not, by their contract to carry, impliedly warrant that their 
 carriages are road- worthy ; and though they are liable for neg- 
 ligence, yet they are not liable to a passenger for an injury to 
 him caused by a hidden defect in their carriage, which no 
 amount of care or skill, either in the manufacture, purchase, 
 or use, could have discovered. And we also saw, from the case 
 of Francis v. Cockerell, 2 that it was a positive duty of the 
 
 1 36 L. J. Q. B. 181 ; 2 L. R. Q. B. 2 5 L R. Q. B. 184, 501, Exch. 
 412; 15 W. R. 831. Ch. 
 
CARRIERS OF PASSENGERS. 539 
 
 carrier to use due care and skill in everything connected with 
 the carriage of passengers, and that the employment of an in- 
 dependent contractor, being a competent person, to do some 
 particular thing, would not exonerate the carrier, if the due 
 care and skill had not been adhibited, even although the de- 
 fect was of such a nature that it could not have been discov- 
 ered by inspection made subsequently to the completion of the 
 contractor's work. 1 The distinction between these two cases 
 is so nice that upon this particular incident to the contract 
 the law may be said to be perfectly definite, for in proportion 
 to the closeness of two distinguishable cases is the definiteness 
 of the principle which is the reason of the distinction. 
 
 SEC. 524. Responsibility for Delay and Ordinary Stipula- 
 tion. — Loss of Market. — Accident or other Causes. — Before 
 quitting the subject of the contract which is entered into be- 
 tween railway companies and passengers, which may be for a 
 single journey, a double journey, or for any length of time, as 
 a month, or a season, we may mention the case of Buckma'ster 
 v. The Great Eastern Railway, 2 in which the ordinary stipulation 
 on railway tickets, that the company shall not be liable for 
 any delay in the starting or arrival of trains arising from " ac- 
 cident or other cause," received a more definite connotation. 
 In that case it appeared that the plaintiff went to the terminus 
 of a branch line of the Great Eastern Railway, intending to 
 travel to London by a certain train, that he might attend a 
 com market. The train was at the station, but the engine 
 which had to draw it had not sufficient steam up, in conse- 
 
 1 See also Daniel v. Metropolitan skill to have its trains arrive and de- 
 Rail. Co., L. R. 3 C. P. 216, 591, and part at the precise time specified in 
 other cases cited above. See also the tables, but does not make the com- 
 Alden v. New York Central R. R. pany responsible for delays not occa- 
 Co., 26 N. Y. 102 ; Hanley v. Har- sioned by its negligence. Gordon v. 
 lem R. R. Co., 1 Edm. (N. Y.) Sel. Manchester, ftc. R. R. Co., 52 N. H. 
 Cas. 359 ; M'Padden v. New York, 596. And it seems that it is not a 
 &c. R. R. Co., 47 Barb. (N. Y.) defence that the conductor wilfully 
 2^7. delayed the train. Weed v. Panama 
 _ 2 23 L/T. u. s. 471. The publica- R. R. Co., 17 N. Y. 362. See, upon 
 tion of a time-table, in common form, this point, Benson ». New Jersey R. R. 
 is held to impose upon a railroad coni- & Transportation Co. 9 Bos. (N. Y.) 
 pany the duty to use due care and 412. 
 
540 THE LAW OF CARRIERS. 
 
 quence of the fireman having neglected to light the fire in 
 time, and the train could not go. The plaintiff was compelled 
 to take a special train, and suffered loss in his business through 
 his late arrival at market. It was held that the cause of the 
 non-starting of the ordinary train was not accident, but an act 
 of negligence on the part of a servant of the company, and 
 that the plaintiff was entitled to recover from the company 
 the sum he had paid for a special train, and likewise a reason- 
 able sum for his loss of market. In summing up, Martin, B., 
 said : " Now the first question to be tried is, whether this non- 
 starting of the train arose from ' accident or other causes.' 
 The words ' other causes,' as used in the condition on the 
 ticket, mean ' other causes, of accidental kind,' and ' not any 
 cause whatever.' The delay in the present case arose, very 
 likely, through the fact of the man whose duty it was to light 
 the engine fires not getting up early enough in the morning. 
 That cause was not accident or anything like it, but an act of 
 negligence on the part of a servant of the company. This 
 line was only a branch of the main line of railway, and if the 
 engine had blown up, or had met with any of the various mis- 
 haps to which engines are liable, the defendants might perhaps 
 be excused, but doubtless you will be of opinion that this case 
 was not one of accident of any kind." 
 
 SEC. 525. Negligence in not starting Train. — Reasonable 
 Restrictions. — And it consequently appears that 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." Any such restrictions or 
 limitations must be reasonable, or they will not be held to be 
 warrantable in a court of law. Further, in relation to the 
 contract it must be noted, that where, by the traffic arrange- 
 ment between two railway companies, passengers are booked 
 through, the contract is one entire contract between the pas- 
 senger and the company issuing the ticket. Where, therefore, 
 a traffic arrangement for booking passengers through existed 
 between the South Wales Railway Company and the Midland 
 Railway Company, and the fares paid were divided between the 
 
CARRIERS OF PASSENGERS. 541 
 
 companies according to the mileage, and the former issued a 
 through ticket to a passenger from Newport to Birmingham, 
 the words " vid Midland from Gloucester " were printed on the 
 ticket, the passenger having lost his portmanteau on the Mid- 
 land line between Gloucester and Birmingham, it was held that 
 he had no cause of action against the Midland Railway Com- 
 pany, the contract entered into by him being with the South 
 Wales Company for the whole distance, which latter company 
 was protected by its act, which provided that a passenger's 
 ordinary luggage should be conveyed at his own risk. 1 
 
 Sec. 526. Contract to carry Passengers further considered. 
 — Another case which bears upon the subject of the contract 
 of railway companies to carry passengers may be alluded to in 
 this place. 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 : 
 " Barnsley to King's Cross and back — excursion ticket. To 
 return by the trains advertised for that purpose on any day 
 not beyond fourteen days after date thereof." Morning and 
 evening return excursion trains were advertised for the Satur- 
 days, but they were not advertised to go to Barnsley. On a 
 Saturday morning within the fourteen days the plaintiff pre- 
 sented himself at King's Cross 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 add other 
 carriages to it. The company refused to let him go by an or- 
 dinary train, but kept him waiting until the evening return 
 train, in which he found a place. That train took him only to 
 Doncaster, where it arrived on Sunday morning. No trains 
 ran from Doncaster to Barnsley on Sundays. The line from 
 Doncaster to Barnsley belonged not to the defendants, but to 
 another company, and the plaintiff hired a carriage to take him 
 from the former to the latter of these places, and brought an 
 action to recover the expense from the defendants. Under 
 these circumstances it was held that, by the terms of the ex- 
 cursion ticket and advertisement, the defendants contracted 
 to carry the plaintiff back to Barnsley on any day within the 
 
 1 Mytton v. Midland Rail. Co., 4 H. & N. 615 ; 28 L. J. Exoli. 385. 
 
542 THE LAW OP CARRIERS. 
 
 fourteen days which he might choose, and by any of the adver- 
 tised trains that he might select, that not sending him by the 
 morning train was a breach of contract, and that taking him 
 only to Doncaster instead of to Barnsley without previous no- 
 tice was a second breach, and that consequently the action 
 was maintainable. 1 
 
 SEC. 527. Rule in lie Conteur v. South-Western Rail-way Co. 
 — The case of Le Conteur v. The South- Western Railway 
 Company 2 decided the point that a common carrier who 
 enters into a contract with a passenger to convey him from 
 one place to another, part of the journey to be performed by 
 land in England, and the rest by sea, is entitled to the pro- 
 tection of the Carriers' Act, 11 Geo. IV. and 1 Will. IV. 
 c. 68. 
 
 Sec. 528. Fares. — We have quoted certain provisions of 
 the 21 & 22 Vict. c. 75, which was made perpetual by the 23 
 & 24 Vict. c. 41, with reference to the rate which railway 
 companies are to charge for the conveyance of third-class 
 passengers, and have dwelt upon the reasons of these pro- 
 visions as being discoverable in a rational politics, which must 
 consider the right of all to the advantages which progress 
 places within the power of a few. As we may now bestow 
 some more minute attention upon the duty of the passengers, 
 although that has been, to some extent, indirectly explicated 
 in treating of the duties of those with whom they contract in 
 case those are railway carriers, we may mention a case which 
 has reference to the question, what will be held an evasion of 
 these statutes upon the part of a passenger. In that case a 
 by-law of a company made it necessary that every passenger 
 should pay his fare previously to entering a carriage of the 
 company, and provided that upon such payment being made 
 the passenger would be furnished with a ticket specifying the 
 class of carriage and distance for which the fare was paid, 
 and that any passenger who entered a carriage without having 
 paid his fare should be subject to a penalty ; and it appeared 
 that an individual intending to go from Colchester to Diss 
 
 1 Great Northern Rail. Co. v. Haworoft, 21 L. J. Q. B. 178 ; 16 Jur. 196, 
 C. C. A. a 6 B. & S. 961. 
 
CARRIERS OP PASSENGERS. 543 
 
 (Diss being an intermediate station between Colcbester and 
 Norwich) took a ticket for Norwich, and upon his arrival at 
 Diss left the carriage. The fare from Colchester to Diss was 
 7s., while the fare from Colchester to Norwich was only 5s. 
 At Diss the difference between these two fares was demanded 
 from the passenger, but he refused to pay it. Upon these 
 facts the borough justices of Colchester convicted him, under 
 the by-law, of having unlawfully and wilfully entered the car- 
 riage of the company for the purpose of travelling upon the 
 railway from Colchester to Diss, not having previously paid 
 his fare for so travelling. On an appeal against this convic- 
 tion it was held that the borough justices had jurisdiction 
 over the alleged offence, but that the conviction could not be 
 sustained, as the appellant had paid his fare within the mean- 
 ing of the by-law. 1 
 
 Sec. 529. Principle of Interpretation. — The principle, which 
 is one simply of interpretation, is the same in another case 
 more recently decided in Ireland. There one of the by-laws 
 of the company provided that " no passenger will be allowed 
 to enter any carriage without having first paid his fare and 
 obtained a ticket, which ticket such passenger is to show 
 whenever required." "Any passenger not producing his 
 ticket will be required to pay the fare from the place whence 
 any part of the train originally started, or, in default of pay- 
 ment, shall forfeit and pay a sum not exceeding 40s." Not- 
 withstanding this by-law, a passenger, who had taken a return 
 ticket from H. to D., and upon his out-journey alighted at D., 
 on his return journey, instead of getting in at D., went to S., 
 the next station upon the line, but further from H. than D. 
 was. Before entering the train, he was told that he would 
 not be allowed to travel without getting a ticket from S. to D. ; 
 but he showed his return ticket, and offered to pay the fare 
 from S. to D. The servants of the company refused to receive 
 the difference of fare, and removed him forcibly from the 
 carriage, and it was decided in the Exchequer Chamber (Ir.) 
 that they were entitled to do so. 2 
 
 1 Reg. i). Erere, 4 El. & Bl. 598 ; 2 M'Carthy v. Dublin, Wicklow, & 
 1 Jur. jr. s. 700 ; 24 L. J. M. C. 68. Wexford Rail. Co., 18 W. R. 762 Ir. 
 See also Gelen v. Hall, 2 H. & N. 379. Exch. Ch. 
 
544 THE LAW OP CARRIERS. 
 
 SEC. 530. Passengers' Duty to show and deliver up Ticket. — 
 This naturally leads us to the consideration of the duty which 
 is imposed upon passengers of showing and delivering up 
 their tickets, and the consequences of a failure to do so. The 
 imposition of this duty is to be defended upon the ground of 
 expediency ; and so long as expediency is judged of in reference 
 to the public good, the ground is a good one. But to some it 
 has seemed a hardship that the passenger should be compelled, 
 as it were, to do a part of the book-keeping of the railway 
 carrier, and that an efficient system might be devised by 
 which this inconvenience might be abrogated. However that 
 may be, the duty has been somewhat carefully circumscribed 
 by the law, so that unavoidable failure to comply with the 
 requisites of such by-laws, or to perform this duty, does not 
 subject the traveller to disagreeable consequences, in case he 
 is free from all intention to defraud. 1 
 
 SEC. 531. Correlative Duty upon the Part of the Company. — 
 One rule is to be remembered, and that is that a railway com- 
 pany, in order to enforce a by-law, as to the production of 
 tickets, must bring themselves strictly within its terms. 2 
 Thus, where a master took tickets for himself and three ser- 
 vants, keeping the tickets in his own care, and told the guard 
 he had the servants' tickets, and the servants were allowed to 
 enter the train, without each having or showing his own ticket, 
 it was held that by so doing the company was estopped from 
 pleading, as a defence to an action by the master against the 
 company, for afterwards expelling the servants from the train, 
 and refusing to carry them, the by-law, " No passenger will 
 be allowed to enter any carriage, or travel therein, without 
 having paid his fare and obtained a ticket, which ticket such 
 passenger is to show when required, and to deliver up before 
 leaving the company's premises." 
 
 Sec. 532. Rule of Construction of By-laws. — It is evidently 
 
 1 The Railway Clauses Act (8 & 9 2 Jennings v. The Great Northern 
 
 Vict. c. 20, § 103) has only reference Rail. Co., 35 L. J. Q. B. 15 ; 1 L. 
 
 to persons travelling without a ticket R. Q. B. 7 ; 12 Jur. n. s. 331 ; 44 W. 
 
 and with fraudulent intent. Dearden R. 28. 
 v. Townsend, 12 Jur. n. s. 120 ; 25 
 L. J. M. C. 50; 14 W. R. 52. 
 
CARRIERS OP PASSENGERS. 545 
 
 the only safe rule of construction applicable to by-laws, that 
 the company, who have the making of them for the direct 
 convenience of the management of their lines, should be 
 strictly bound by them, and that where two constructions are 
 possible, that which is in favor of the public and in prejudice 
 of the company should be adopted. But where by-laws exist 
 and are explicit, this simple rule of construction is not to be 
 erected into a rule of law, to over-rule the clear provisions of 
 by-laws, which, although made primarily for the advantage of 
 the company, are secondarily, as we have shown, beneficial to 
 the public. Thus, under a by-law of a railway company, which 
 provided that " each passenger, booking his place, will be 
 furnished with a ticket, which he is to show and deliver up, 
 when required, to the guard," and that " each passenger, not 
 producing or delivering up his ticket when required, is hereby 
 subjected to a penalty not exceeding 40s.," it was held that 
 the holders of annual tickets for travelling on the line were 
 bound to produce their tickets to the railway officers as much 
 as ordinary passengers. 1 
 
 Sec. 533. Fraudulent Intention. — The meaning of the 103d 
 section of the 8 & 9 Vict. c. 20, which enacts " that, if any 
 person travel in any carriage of the company without having 
 paid his fare, 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 dis- 
 tance without previously paying the additional fare for the 
 additional distance, and with intent to avoid payment thereof, 
 he shall forfeit, &c," came under the consideration of the 
 Court of Queen's Bench in the case of Dearden v. Townsend. 2 
 In that case it appeared that the Lancashire and Yorkshire 
 Railway Company had made amongst other by-laws one which 
 provided that "no passenger will be allowed to enter any 
 carriage used on the railway or to travel therein upon the 
 railway without having first paid his fare and obtained a 
 ticket, or (as the case may be) without having paid for and 
 
 1 Woodward v. Eastern Counties 2 Dearden v. Townsend, 35 L. J. 
 Rail. Co., 7 Jur. s. s. 971; 30 L.J. M. C. 50; 12 Jur. n. s. 120; 14 
 M. C. 126 ; 9 W. R. 660. W. R. 52. 
 
 35 
 
546 THE LAW OP CARRIERS. 
 
 obtained a contract or season ticket, giving him authority to 
 travel during a stipulated period of time. Each passenger, on 
 payment of his fare or the price of his contract or season 
 ticket, will be furnished with a ticket, specifying the class of 
 carriage and the distance for which, or places for travelling 
 between which, the payment has been made, which ticket 
 (whether a contract or season ticket or otherwise) such pas- 
 senger is to show, whenever required by the guard in charge 
 of the train, or some other servant of the company, and which 
 ticket (if other than contract or season ticket) such passenger 
 is also to deliver up before leaving the company's premises, 
 upon demand, to the guard or other servant of the company 
 authorized to collect tickets. Any passenger not producing 
 his ticket as aforesaid (whether it be a contract or season tick- 
 et or otherwise), or any passenger not delivering up his 
 ticket as aforesaid (if it be other than a contract or season 
 ticket), will be required to pay the fare from the place whence 
 the train started, and in default of payment thereof shall 
 forfeit and pay a sum not exceeding 40s." The respondent 
 in this case took at Ewood Bridge, a station on the appellant's 
 line, a return ticket of the first class, thence to Salford (an- 
 other station on the company's line), and back. He travelled 
 to Salford and back again to Ewood Bridge, but, instead of 
 alighting at the latter place, he travelled without taking an- 
 other ticket to New Church. On the arrival of the train at 
 New Church, the respondent produced and delivered up to the 
 authorized servant of the company his return ticket from 
 Ewood to Salford, and then tendered to him in addition the 
 full local fare charged by the company for the conveyance of 
 a first-class passenger between the two stations, Ewood Bridge 
 and New Church, but it was refused. And the company's 
 officer demanded payment of the full fare from Salford to 
 New Church, which the respondent refused to pay. There 
 was no intention on the part of the respondent to defraud the 
 company, nor was any such intention charged in the informa- 
 tion. Upon these facts it was held the respondent was not 
 liable to be convicted, under such a by-law, for not producing 
 and delivering up a ticket to New Church, or for not paying 
 
CARRIERS OF PASSENGERS. 547 
 
 the fare from Salford to New Church, in the absence of any 
 intention to defraud. 
 
 Sec. 534. Intention to defraud Ingredient of the Offence. — 
 And Cockburn, C. J., in giving judgment, said : " The inten- 
 tion of the person offending is therefore made by the statute 
 an essential ingredient in the offence. But if the company, 
 by a by-law, were to constitute the same state of facts an 
 offence, and omit the element of intention, I think they would 
 then not be making a by-law subject to the general act, but 
 legislating in a sense repugnant to its provisions. I am of 
 opinion, however, that the construction which the appellant 
 would put upon this by-law is not the true one, and that it is 
 meant to apply to persons who have taken a ticket and have 
 it in their possession, but who will not produce it when re- 
 quired. No doubt, if a person travelling on this railway will 
 not produce his ticket when demanded by the guard or other 
 authorized person, the company would be right in assuming 
 that he had a ticket and would not produce it, and in requiring 
 him to pay the fare from the place whence the train originally 
 started, but here the respondent produces his ticket, such as 
 had been given him by the company, when demanded. . . . 
 But the offence is provided for by statute, and therefore the 
 question of intention becomes material. The company can- 
 not apply this by-law to such a state of facts as the present." 
 
 Sec. 535. Construction of By-law. — In a case already re- 
 ferred to, a similar construction was placed upon a similar by- 
 law in Ireland. In that case the wording of the by-law was 
 as follows : " No passenger will be allowed to enter any car- 
 riage without having first paid his fare and obtained a ticket, 
 which ticket such passenger is to show whenever required by 
 the guard in charge of the train, or some other servant of the 
 company. Any passenger not producing his ticket as afore- 
 said, will be required to pay the fare from the place whence 
 any part of the train originally started, or in default of pay- 
 ment thereof shall forfeit, &c." This was held by Whiteside, 
 C. J., only to apply to the case of a person having a ticket and 
 refusing to show it. 1 
 
 1 M'Cartliy v. Dublin, Wicklow, & 17 W. R. 1101 Q. B. See also 18 
 Wexford Rail. Co., 3 Ir. R. C. L. 511 ; W. R. 762 Ir. Exeh. Ch. 
 
548 THE LAW OP CARRIERS. 
 
 SEC. 536. Restrictions on Preference. — But sufficient, it 
 seems to us, has been said to indicate in what way and for 
 what reasons the law, as it relates to the carriage of passen- 
 gers by railways, differs from the legislative rules which regu- 
 late the rights and duties of the carriers of passengers by 
 other modes of conveyance. In the course of our inquiry we 
 have had opportunities of pointing out some of the principles 
 which have guided legislative and executive action in relation 
 to this branch of the law, which were not peculiar to railway 
 carriers of passengers, but which, for many reasons, found 
 more adequate illustration and convenient expression in that 
 context. Before quitting this subject it may be expedient to 
 refer the reader to what has already been said of the restric- 
 tions which are imposed upon the carriers of passengers by 
 railway, in so far as the prevention of undue and unreason- 
 able preference goes, under the 17 & 18 Vict. c. 31 (the Rail- 
 way and Canal Traffic Act, 1854). This subject has been 
 treated somewhat fully in another chapter, upon the ground 
 that the principle which led to the prevention of undue and 
 unreasonable preference in the case of goods was the same as 
 that which led to the prevention of the same practices in con- 
 nection with passenger traffic, and that was the protection of 
 the interests of the public against the practical effects of the 
 monopoly which circumstances had placed in the hands of 
 railway companies. This branch of the law of carriers will 
 be found to some extent explicated in the chapter upon the 
 restrictions imposed upon carriers. 1 
 
 SEC. 537. Tramways, Object of Statutory Enactments. — 
 We come now to a consideration of the law which is appli- 
 cable to street railways, or tramways. Prom what has been 
 already said, it will be evident that when the existence of a 
 practical monopoly, in so far as carriage went, necessitated 
 stringent legislative measures, the existence of an actual mo- 
 nopoly of use will make some such legislative interference 
 and regulation absolutely necessary in the case of street rail- 
 ways. 2 In the latter case, however, the legislative interfer- 
 
 1 Ante, p. 357 et seq. Co., 36 N. Y. 378 ; Vinton v. Middle- 
 
 * Maverick v. Eighth Avenue R. R. sex R. R. Co., 11 Allen (Mass.), 304. 
 
CARRIERS OP PASSENGERS. 549 
 
 ence will be more peculiarly of a kind to. protect other persons 
 than those who have become passengers ; while in the former, 
 it will be entered upon more particularly with the view of 
 protecting those individuals who have contracted with the car- 
 rier to be conveyed, for the obvious reasons that railways run 
 over ground belonging to the company, and on which, except 
 at level crossings — for which special regulations exist, as we 
 have seen — no person has a right to be, while tramways are 
 upon the public streets and roads, where every person has a 
 right to be. But, further, there is another reason why, in the 
 case of tramways, the legislative provisions should be directed 
 more to secure the safety of the public who are not passen- 
 gers, than that of the public who are ; and that is, that, owing 
 to the speed with which railways travel, and the comparative 
 slowness with which tramway omnibuses convey, the danger 
 in the one case to passengers is small, when compared with 
 the possible danger in the other. Therefore, if the legislature 
 would interfere with excellent effect, it must interfere so as to 
 produce extra care where there is additional danger, and must 
 constantly endeavor to leave each carrier as free as a rational 
 regard for the interests and safety of the public will permit. 
 There were several attempts at legislation upon the matter of 
 tramways, the greater convenience of that mode of conveyance 
 having been proved in America before its introduction into 
 this country. And besides the 24 & 25 Vict. c. 152, which 
 was an act to facilitate internal communication in Ireland by 
 means of tramways, 1 the 24 & 25 Vict. c. 69, which was an 
 act providing for the formation of tramways on turnpike and 
 statute labor roads in Scotland, and the 28 & 29 Vict. c. 74, 
 which enabled the Secretary of State for the War Depart- 
 ment to lay down and use a tramway across certain public 
 roads in the county of Devon, several private and local acts 
 have been passed enabling companies to lay down and use 
 tramways in various places in England. But on the 9th of 
 August, 1870, 2 an act was passed to facilitate the construction, 
 
 1 Amended by 24 & 25 Vict. c. 102; 34 Vict. c. 78 ; and see the Metropol- 
 25 & 26 Viet. c. 67, § 7. itan Tramways Provisional Orders Sus- 
 
 2 The Tramways Act, 1870, 33 & pension Act,' 1871, 34 & 35 Vict. c. 69. 
 
550 THE LAW OP CARRIERS. 
 
 and regulate the ■working of these street railways, or tram- 
 ways, some of the provisions of which must be alluded to in 
 this place. 
 
 Sec. 538. Provision for Application to Board of Trade. — 
 Confirmation of Provisional Order. — By this act, and with a 
 view to carrying out these purposes, provision is made for 
 application to the Board of Trade, with the consent of the 
 local or road authority of the district in which the proposed 
 tramway is to be constructed, by the promoters, and for- the 
 making of a provisional order by the Board of Trade, if they 
 think fit. The Board of Trade, in granting such application, 
 may do so with or without modification, or subject, or not 
 subject, to any restriction or condition. 1 The same section 
 also enacts that " every such provisional order shall empower 
 the promoters therein specified to make the tramway upon 
 the gauge and in the manner therein described, and shall con- 
 tain such provisions as (subject to the requirements of this 
 act) the Board of Trade, according to the nature of the appli- 
 cation, and the facts and circumstances of each case, think 
 fit to submit to Parliament for confirmation, in manner pro- 
 vided by this act, but so that any such provisional order shall 
 not contain any provision for empowering the promoters, or 
 any other person, to acquire any lands, even by agreement, 
 except to an extent therein limited, or to construct a tramway 
 elsewhere than along or across a road, or upon land taken by 
 agreement." The 9th section provides that " every tramway 
 in a town, which is hereafter authorized by provisional order', 
 shall be constructed and maintained, as nearly as may be, in 
 the middle of the road, and no tramway shall be authorized 
 by any provisional order to be so laid that for a distance of 
 thirty feet or upwards a less space than nine feet and six 
 inches shall intervene between the outside of the footpath on 
 either side of the road and the nearest rail of the tramway, if 
 one third of the owners or one third of the occupiers of the 
 houses, shops, or warehouses abutting upon the part of the 
 road where such less space shall intervene as aforesaid, shall, 
 
 1 Sec. 8. 
 
CARRIERS OP PASSENGERS. 551 
 
 in the prescribed manner, and at the prescribed time, express 
 their dissent from any tramway being so laid." 
 
 SEC. 539. Specification of Nature of Traffic. — The 10th 
 section enacts that " every such provisional order shall specify 
 the nature of the traffic for which such tramway is to be used, 
 and the tolls or charges which may be demanded and taken by 
 the promoters in respect of the same, and shall contain such 
 regulations relating to such traffic, and such tolls and charges 
 as the Board of Trade shall deem necessary and proper." 
 
 SEC. 540. Publication and Confirmation of Order. — Powers 
 of Board of Trade. — The 13th section provides for the publi- 
 cation, and the 14th for the confirmation by Parliament, of the 
 provisional order. 1 By the 16th section the Board of Trade 
 has power to revoke, amend, extend, or vary any provisional 
 order. There are also provisions for the cesser of the powers 
 given by any provisional order at the expiration of the pre- 
 scribed time, 2 for the way in which tramways shall be con- 
 structed, 3 for the breaking up of streets, with a view to such 
 construction, 4 for the repair of the roads where the tramway 
 is laid, 5 as to gas and water companies, and the protection of 
 sewers. 6 
 
 SEC. 541. Tolls, &c. — By-laws by Local Authority. — The 
 third part of the act, under the head General Provisions, gives 
 authority to the promoters to use the tramways, with flange- 
 wheeled carriages, 7 and provides for the granting of licenses 
 to use the tramway, to third parties by the Board of Trade. 8 
 And the 45th section of the act provides that " the promoters 
 or lessees of a tramway authorized by special act may demand 
 and take, in respect of such tramway, tolls and charges not 
 exceeding the sum specified in such special act, subject and 
 according to the regulations therein specified. A list of all 
 the tolls and charges authorized to be taken shall be exhibited 
 in a conspicuous place inside and outside each of the carriages 
 used upon the tramways." The 46th section enacts that, 
 
 1 The Act of Parliament confirming 4 See. 26. 
 a provisional order is to be deemed a 6 See. 28. 
 Public General Act, § 14. 6 Sees. 30 & 31. 
 
 2 Sec. 18. ' 33 & 34 Vict. c. 78, § 34. 
 8 Sec. 25. « Ibid. § 35. 
 
552 
 
 THE LAW OP CARRIERS. 
 
 " subject to the provisions of the special act authorizing any 
 tramway and this act, the local authority 1 of any district, in 
 which the same is laid down, may from time to time make 
 regulations as to the following matters : — 
 
 " The rate of speed to be observed in travelling upon the 
 tramway ; 
 
 " The distances at which carriages using the tramway shall 
 be allowed to follow one after the other ; 
 
 " The stopping of carriages using the tramway ; 
 
 " The traffic on the road in which the tramway is laid. 
 
 " The promoters of any tramway and their lessees may from 
 time to time make regulations, — 
 
 " For preventing the commission of any nuisance in or upon 
 any carriage, or in or against any premises belonging 
 to them ; 
 
 " For regulating the travelling in or upon any carriage be- 
 longing to them." 
 
 And the section goes on to provide for the alteration of any 
 such by-laws, for publication of notice of the making of such 
 by-laws, and for the nullity of any such by-law which shall be 
 disallowed by the Board of Trade. 
 
 SEC. 542. Powers for enforcing Rules, &c. — Another sec- 
 tion enacts that reasonable penalties may be imposed by such 
 by-laws, not exceeding 40s. for each offence. 2 And another 
 gives to the local authority like powers of making and enforcing 
 rules and regulations, and of granting licenses with respect to 
 all carriages using the tramways, and to all drivers, conduc- 
 tors, and other persons having charge of, or using the same, 
 and to standings for the same, as they are for the time being 
 entitled to make, enforce, and grant with respect to hackney 
 carriages, and the drivers and other persons having charge 
 thereof, and to the standings for the same in the streets and 
 district of or under the control of the local authority. 8 
 
 By the 50th section of the said act, it is provided that, " If 
 any person without lawful excuse (the proof whereof shall 
 lie on him) wilfully does any of the following things, viz. — 
 
 1 For the meaning of the terra "local 2 33 & 34 Vict. c. 78, § 47. 
 authority," see 33 & 34 Vict. o. 78, § 3. « Ibid. § 48. 
 
CARRIERS OP PASSENGERS. 553 
 
 " Interferes with, removes, or alters any part of the tram- 
 way, or of the works connected therewith, places or 
 throws any stones, dirt, wood, refuse, or other material 
 on any part of a tramway ; 
 " Does, or causes to be done, anything in such manner as 
 to obstruct any carriage using a tramway, or to endanger 
 the lives of persons therein or thereon ; 
 " Or knowingly aids or assists in the doing of any such 
 thing, — 
 he shall for every such offence be liable (in addition to any 
 proceedings by way of indictment or otherwise, to which he 
 may be subject) to a penalty not exceeding 51." 
 
 Sec. 543. other Penalties. — Further, there are provisions 
 for the infliction of penalties on passengers practising frauds 
 upon the promoters, 1 for bringing dangerous goods on the 
 tramway, 2 and on persons using the tramways with carriages 
 with flange wheels ; 3 and it is provided that " the promoters 
 or lessees, as the case may be, shall be answerable for all acci- 
 dents, damages, and injuries happening through their act or 
 default, or through the act or default of any person in their 
 employment, by reason or in consequence of any of their works 
 or carriages, and shall save harmless all road and other author- 
 ities, companies, or bodies collectively and individually, and 
 their officers and servants, from all damages and costs in 
 respect of such accidents, damages, and injuries; " 4 and again, 
 that nothing in that act, or in any by-law made under it, 
 should take away or abridge the right of the public " to pass 
 along, or cross, every or any part of any road along or across 
 which any tramway is laid, whether on or off the tramway, 
 with carriages not having flange wheels, or wheels suitable 
 only to run on the rail of the tramway." 5 
 
 1 33 & 34 Vict. c. 78, § 51. as private property, and cannot be used 
 
 2 Ibid. § 53. by others by having the wheels of their 
 8 Ibid. § 54. carriages adapted thereto Jersey City, 
 4 Ibid. § 55. &c. R. R. Co. v. Jersey City, &c. R. 
 6 Ibid. § 62. There has been an R. Co., 20 N. J. Eq. 61 ; Brooklyn 
 
 injunction granted, by Malins, V. C, Central R. R. Co. v. Brooklyn City 
 
 against an omnibus company for alter- R. R. Co., 32 Barb. (N. Y.) 358 ; 
 
 ing its wheels to the gauge of the tram- Metropolitan R. R. Co. v. Quincy R. 
 
 way. A street railway track is treated R. Co., 12 Allen (Mass.), 262. 
 
554 THE LAW OP CARRIERS. 
 
 Sec. 544. Analogy between Street and other Railway Car- 
 riers. — These, then, and other provisions to which it is 
 unnecessary to allude in this place, indicate the rights and the 
 duties of those carriers of passengers who carry by means of 
 street railways or tramways, and it will be perceived that 
 many of the provisions thus made are, in many respects, 
 analogous to those which exist in the case of railways. 
 Wherever there is no reason for difference, there are many 
 reasons for similarity, and much of the case law which has 
 been accumulated in relation to railway cases, in so far as they 
 are carriers of passengers, is applicable, it seems to us, to 
 carriers by means of tramway omnibuses. The differences 
 which exist in the statute law applicable to these two classes 
 of carriers are merely differences in matters of detail, and 
 the principles which dictate the provisions as to restrictions, 
 by-laws, and the like, are the same in both cases. As that is 
 the case, and as we have described with considerable minute- 
 ness the law as it relates to railway carriers of passengers, it 
 is unnecessary to dwell at greater length in this place upon 
 that class of carriers who convey passengers in or by means 
 of tramways. 
 
 Sec. 545. Hackney Carriages. — There is another class 
 of carriers of passengers who are distinguished from those 
 already alluded to by the kind of conveyance which they use 
 for the purposes of carriage. All the differences in law de- 
 pend upon differences in fact. The 4aw is something which 
 has arisen out of dead facts, as the phoenix is supposed to rise 
 out of dead ashes. Now the circumstances connected with 
 conveyance of passengers by means of hackney carriages, or 
 cabs, are sufficiently unlike those connected with the convey- 
 ance of passengers by any other vehicle, as to make some 
 distinction in the law applicable to these necessary. Such 
 necessity is dictated by a reasonable desire upon the part of 
 the legislature to secure the convenience of the public, and 
 from a consciousness that the more general the attainment of 
 this end is, the more wisely are they performing their func- 
 tions, and the more successfully arriving at the very object of 
 their existence. 
 
CAERIEES OP PASSENGERS. 555 
 
 Sec. 546. History of Legislation. — The history of legisla- 
 tion in reference to this matter is somewhat long, and we 
 will content ourselves by referring the reader to some of the 
 statutes which have, from time to time, been passed. The 
 first important act which was passed was the 1 & 2 Will. IV. 
 c. 22, 1 which had to do with the collection and management of 
 the duties on vehicles of this description, and placed them 
 under the Commissioners of Stamps. 2 But the acts which, 
 up to the 32 & 33 of Victoria, were the most important in 
 this connection, in so far at least as metropolitan cabs were 
 concerned, 3 were the 16 & 17 Vict. c. 33, and the 16 & 17 
 Vict. c. 127. 2 These acts were passed with the view of regu- 
 lating metropolitan stage and hackney carriages, of reducing 
 the duties payable in respect of such carriages, and also 
 of amending the law relating to the granting of licenses and 
 payment of duties in respect of such carriages, and, at the 
 same time, of making provision as to the charge for their 
 hire in certain cases. The actual provisions of these acts 
 need not be more specifically referred to in this place. 4 In 
 1869, however, another act was passed, for the purpose of 
 amending the law relating to cabs within the metropolitan 
 police district. 5 This act places the power of licensing, or 
 withholding a license to such vehicle, in the hands of one of 
 Her Majesty's principal Secretaries of State, 6 provides for 
 the infliction of penalties for the use of unlicensed carriages, 7 
 for the licensing of drivers, 8 and, by its 9th section, that the 
 said " Secretary of State may, from time to time, by order, 
 make regulations for all or any of the following purposes ; 
 that is to say, — 
 
 " 1. For regulating the number of persons to be carried by 
 any hackney or stage carriage, and in what manner 
 
 1 See also 1 & 2 Vict, c. 79 ; 16 & * See also 30 & 31 Viet. e. 134, 31 
 17 "Vict. c. 8C ; 22 & 23 Viet. c. 115. & .32 Viet. o. 5, and 32 & 33 Vict. 
 
 2 See also 6 & 7 Viet, c.86, and 13 c. 14. 
 
 & 14 Viet. e. 7. See Frost v. Wil- 5 The Metropolitan Public Carriage 
 
 liams, 7 A. & E. 773; 2 N. & P. Act, 1869, 32 & 33 Vict. c. 115. 
 475. 8 32 & 33 Vict. c. 115, § 6. 
 
 8 As to provincial hackney carriages, r Ibid. § 7. 
 see 10 & 11 Vict. c. 89, § 37. 8 Ibid, § S. 
 
556 THE LAW OF CARRIERS. 
 
 such number is to be shown on such carriage, and 
 how such hackney carriages are to be furnished and 
 fitted ; 
 
 "2. For fixing the stands of hackney carriages, and the 
 distances to which they may be compelled to take 
 passengers, and the persons to attend at such 
 stands ; 
 
 " 3. For fixing the rates of fares, as well for time as dis- 
 tance, to be paid for hackney carriages, and for 
 securing the due publication of such fares ; provided 
 that it shall not be made compulsory on the driver 
 of any hackney carriage to take passengers at a less 
 fare than the fare payable at the time of the passing 
 of this act ; 
 
 " 4. For forming, in the case of hackney carriages, a table 
 of distances, as evidence for the purpose of any fare 
 to be charged by distance, by the preparation of a 
 book, map, or plan, or any combination of a book, 
 map, or plan ; 
 
 " 5. For securing the safe custody and redelivery of any 
 property accidentally left in hackney or stage car- 
 riages, and fixing the charges to be paid in respect 
 thereof, with power to cause such property to be sold, 
 or to be given to the finder, in the event of its not 
 being claimed within a certain time. 
 
 " Subject to the following restrictions : — 
 
 " 1. In fixing the stands for hackney carriages within the 
 city of London, and the liberties thereof, the consent 
 of the Court of the Lord Mayor and Aldermen shall 
 be required to any stand appointed by the Secretary 
 of State ; 
 
 " 2. No hackney carriage shall be compelled to take any 
 passenger a greater distance, for any one drive, than 
 six miles ; 
 
 " 3. During such portions of time between sunset and sun- 
 rise as is from time to time prescribed, no driver shall 
 ply for hire unless the hackney carriage under his 
 charge be provided with a lamp, properly trimmed 
 
CARRIERS OP PASSENGERS. 557 
 
 and lighted, and fixed outside the carriage in such 
 manner as is prescribed." 1 
 
 Other provisions occur in this act, to which, however, it is 
 unnecessary for us to refer. 2 The above quotation shows in 
 what way the law has been modified, and in whose hands the 
 power of regulating this description of passenger traffic is at 
 present placed. Before alluding to some of the cases which 
 have been decided since the passing of this act, it may be well 
 to refer to one or two previous decisions upon this subject. 3 
 This, however, must be done briefly. 
 
 Sec. 547. with regard to Licensing. — Where a conviction 
 alleged that a coach-master, not being licensed, did drive and 
 let to hire a certain coach and two coach-horses, being within 
 the bills of mortality, and within and upon the streets of Lon- 
 don and Westminster, and in the information on which the 
 conviction was founded, it was stated that the defendant did 
 drive to hire a certain coach and two coach-horses within and 
 upon such paved streets, and that the driver conveyed a per- 
 son in the coach for hire within the limits aforesaid, it was 
 held that such a conviction could not be supported under any 
 of the statutes by which hackney coaches were licensed or 
 regulated, as it was not alleged to be a hackney coach within 
 9 Anne, c. 23, nor was it " driving for hire with a coach " 
 within 1 Geo. I. c. 57. 4 
 
 In another case it was decided that, notwithstanding the 
 terms of 6 & 7 Vict. c. 86, § 8, a commissioner of police may 
 exercise a discretion in granting licenses to metropolitan omni- 
 bus drivers and conductors, and may propose such questions 
 to them with relation to their application for such licenses as 
 he may think proper, and is not bound to renew such licenses 
 upon the bare production of a certificate of the good conduct 
 
 1 This clause does not repeal 5 & 6 s The act relating to hackney car- 
 Vict. c. 79, § 13, so far as regards exist- riages is expressly limited from ex- 
 ing carriages, or any which maybe tending to steam carriages. 3&4Will. 
 built within one year after the passing IV. c. 48. 
 
 of the recited act. 4 Cloud v. Turfery, 9 Moore, 595 ; 
 
 2 See further on this subject, 29 & 2 Bing. 318. 
 30 Vict. c. 64, § 10, and 29 & 30 Vict. 
 
 c. 36, § 1. 
 
558 THE LAW OP CARRIERS. 
 
 and fitness of the applicant. 1 And it was decided that a 
 license for hackney carriages, granted by the Commissioners 
 of Stamps under 2 & 3 Will. IV. c. 120, does not dispense 
 with the necessity of a license under the Towns Police Clauses 
 Act, 1847, 2 the first being required for the purposes of revenue, 
 the second for the purposes of police. 3 
 
 Sec. 548. standing and Plying. — In a case where it ap- 
 peared that a Paving Act authorized the commissioners to 
 direct and regulate the hackney-coach stands within their dis- 
 trict, it was held that they might remove a hackney-coach 
 stand altogether if it obstructed the public street. 4 We refer 
 to these cases because, although legislative alterations have 
 been made in the authority which is to regulate this kind of 
 traffic, the principles which are to govern the exercise of that 
 authority are the same as those which are to be found expli- 
 cated in the cases referred to. 5 One other case, which has 
 still importance in this connection, may be quoted, — that is 
 the case of The Blackpool Board of Health v. Bennett. 6 By 
 an order in council the entire area, places, and parts of places 
 comprised within the boundary of a township were constituted 
 a district, for the purposes of the 11 & 12 Vict. c. 63. An 
 Improvement Act empowered the local board from time to 
 time to make by-laws for regulating the conduct of the drivers 
 of hackney carriages plying within the district, and for fixing 
 the stands of such hackney carriages. The local board made 
 the following by-law : " That the several places in the district 
 where painted boards shall from time to time be placed by the 
 local board to distinguish them as stands, shall be the stands 
 for such number of carriages, horses, asses, mules, &c, as 
 shall be mentioned on such boards, and no driver of any such 
 carriage, &c, shall place the same on any other than one of such 
 
 1 Metcliam, Ex parte, 10 Jur. s. s. 4 Rex v. Rawlinson, 9 D. & R. 7 ; 
 1254 ; 5 B. & S. 585 ; s. c. nom. Reg. 6 B. & C. 23. 
 
 v. Commissioners of Metropolitan Po- 6 See also Duck v. Addington, 4 
 
 Hoe, 12 W. R. 983 ; 33 L. J. Q. B. 325. T. R. 447. 
 
 2 10 & 11 Vict. c. 89, § 37. 6 4 H. & N. 127 ; 28 L. J. M. C 
 8 Buckle v. Wrightson, 13 W. R. 203 ; 7 W. R. 382. 
 
 92; 11 L. T. n. s. 341; 34 L. J. M. 
 C. 43; 5B. &S. 854. 
 
CARRIERS OP PASSENGERS. 559 
 
 stands, or shall ply for hire in any of the streets or places 
 within the district (except on one of such stands), under 
 a penalty not exceeding 40s." In this case it appeared that 
 a licensed driver had been convicted of plying for hire off a 
 stand, and on appeal the justices stated that it was proved to 
 their satisfaction that he was driving a licensed carriage on 
 the beach within the district, that he got off, spoke to some 
 people, and took them up, having then passed a stand. It was 
 held that, although the by-law did not state on the face of it 
 the exact localities where the stands were to be, it was valid, 
 that the sea-shore between high and low water mark was within 
 the district, and that the driver was properly convicted of ply- 
 ing for hire off a stand. 
 
 SEC. 549. Provisions as to Extra Payments. — Number of 
 Persons. — Children. — One of< the sections of one of the acts 
 above alluded to 1 provides that, when more than two persons 
 shall be carried inside any hackney carriage or cab drawn by 
 one horse only, a sum of 6d. for each person shall be paid for 
 the whole hiring in addition to the fare directed to be paid for 
 two persons under 16 & 17 Vict. c. 33, and that two children 
 under ten years of age shall be considered as one adult per- 
 son. It was held that if two children under ten years of age 
 are carried in excess of two persons, they shall be counted and 
 paid for as one adult ; but that if one child only be so conveyed 
 in excess, he shall still be considered as an extra person with- 
 in the meaning of the act, and paid for accordingly. 2 We 
 come now to the consideration of one or two cases which have 
 come before the courts of law since the passing of the Metro- 
 politan Public Carriage Act, 1869. In one of these, which 
 came before the Court of Queen's Bench, it was decided that 
 a carriage, whilst on the premises of a railway company, under 
 a contract with them to await the arrival of their trains, for 
 the conveyance of any passenger by railway who chooses to 
 
 1 16 & 17 Vict. o. 127, § 14. 2 C. B. 265 ; 9 Jur. 1013 ; Rogers v. 
 
 2 Norton v. Jones, 11 "W. R. 573 ; Macnamara, 14 C. B. 27 ; 23 L. J. 
 8 L. T. n. s. 241 Q. B. In reference C. P. 1 ; Heathe v. Brewer, 15 C B. 
 to defacing a license, forbidden nnder n. s. 803 ; 9 L. T. n. s. 653. 
 
 6 & 7 Vict. c. 86, see Hurrell v. Ellis, 
 
560 THE LAW OF CAKKIERS. 
 
 hire it, is plying for hire within the meaning of the act, is 
 therefore a hackney carriage, and must be licensed. 1 
 
 SEC. 550. Power of Home Secretary to license Cabs. — Spe- 
 cification in Application. — We have seen that the act under 
 consideration empowers the Home Secretary to license hack- 
 ney carriages in such manner and in such form, and subject 
 to such conditions, as he may by order prescribe, and also to 
 make regulations for (amongst other things) fixing the rates 
 of fares, and for securing the due publication thereof. In pur- 
 suance of the power thus conferred upon him, the Home Secre- 
 tary made an order prescribing a form of license which was to 
 contain the rate to be charged for the hire of each carriage 
 per mile and per hour. The order further required that the 
 application for a license should specify the sums which the 
 applicant desired to have inserted in the license as the rates 
 at which the carriage should ply for hire ; that the carriage 
 should be inspected prior to the license being issued ; and that, 
 before plying for hire, the proprietor should affix to the top of 
 the carriage a metal flag with the rates to be charged in ac- 
 cordance with his license. As we have seen, penalties were 
 imposed by the act for breach of the order. Upon a summons 
 against the proprietor of a hackney carriage for non-compli- 
 ance with the order in respect of the affixing of a flag with the 
 fares, the magistrate refused to convict the defendant on the 
 ground that the order was not a sufficient compliance with 
 the act, inasmuch as the Secretary of State had no power to 
 authorize an indefinite number of scales of charges for hack- 
 ney carriages, but only one scale, binding upon all hirers and 
 all proprietors. This decision was reversed in the Court of 
 Common Pleas. " The objection to this order," remarked 
 Willes, J., in delivering his judgment, " seems to be, that the 
 Secretary of State has not fixed the fares so as to be in com- 
 pliance with the statute. It might, possibly, have been more 
 convenient to divide the licensed hackney carriages into classes, 
 and to have allowed a fixed rate, say, Is. Qd., Is., and 6d. per 
 mile, respectively. Instead of doing so, the order provides 
 
 1 Clarke ». Stanford, 6 L. "R. Q. B. Exch. 319. See also Allen v. Tun- 
 357. See Case v. Storey, 4 L. R. bridge, 6 L. E. C P. 481. 
 
CARRIERS OP PASSENGERS. 561 
 
 that, when a license is applied for, the carriage shall be in- 
 spected by the proper officer, that the application for the 
 license shall specify the sums which the applicant desires to 
 have inserted in the license as the rates at which the carriage 
 shall ply for hire by distance and by time respectively, and that 
 the license, when granted, shall state that charge. . . . The 
 course which the Secretary of State has by this order adopted, 
 seems to me to determine sufficiently the scale of fares, and 
 the mode of making such scale, in each case, known to the 
 public. The result will be that carriages will be provided at 
 the accustomed fares, or a better class of conveyance for a 
 higher charge. The inspector will take care that the order is 
 properly carried out in this respect." J 
 
 Sec. 551. Sanitary Precautions. — One other subject in con- 
 nection with that which is at present under consideration may 
 be noticed in this place. The advance of science has made us 
 more thoroughly acquainted with the conditions of health and 
 disease, and has consequently enabled us to take such precau- 
 tions as will tend to secure to some extent the former, and to 
 avoid to some extent the latter. At best, our knowledge is 
 very scanty, and it therefore the more behooves us to act with 
 the greatest caution in all sanitary matters, and at the same 
 time to neglect no means which may tend to the maintenance 
 of the public health as being second — if second — only to the 
 public order and peace. With this view much has recently 
 been done to attain these ends, yet much, even in the present 
 state of scientific knowledge, remains to be done. The more 
 thorough knowledge alluded to brought to light the fact that 
 there were other dangers to be feared in connection with con- 
 veyance of persons from place to place than those which met 
 the eye, or were to be placed under the head of accidents, and 
 treated by surgical appliances. It became familiar to all that 
 there were dangers which did not meet the eye, dangers which 
 were more perilous than those which may arise from latent 
 defects of construction in the carriage, and dangers from 
 which the public could only be protected by strict statutory 
 enactments. These dangers were those which arise from the 
 
 1 Booking v. Jones, 6 L. R. C P. 29. 
 
 36 
 
562 
 
 THE LAW OF CARRIERS. 
 
 peculiar nature of the propagability of disease ; and, to avoid 
 the evils which might arise from healthy persons being carried 
 in vehicles in which persons suffering from infectious diseases 
 had been conveyed, the legislature introduced several meas- 
 ures. The first of these, 18 & 19 Vict. c. 116, is applicable 
 to Scotland, and the most recent of these, the 29 & 30 Vict, 
 c. 90, contains the following provisions : 1 "It shall be lawful 
 at all times for the nuisance authority to provide and maintain 
 a carriage or carriages suitable for the conveyance of persons 
 suffering under any contagious or infectious disease, and to 
 pay the expense of conveying any person therein to a hospital 
 or place for the reception of sick, or to his own house." 2 " If 
 any person suffering from any dangerous infectious disorder 
 shall enter any public conveyance without previously notifying 
 to the owner or driver thereof that he is so suffering, he shall, 
 on conviction thereof before any justice, be liable to a penalty 
 not exceeding 51., and shall also be ordered by the justice to 
 pay to such owner and driver all losses and expenses they may 
 suffer in carrying into effect the provisions of this act ; and no 
 owner or driver of any public conveyance shall be required to 
 convey any person so suffering until they shall have been first 
 paid a sum sufficient to cover all such losses and expenses." 3 
 Sec. 552. Passengers by Water. — Another subject of much 
 importance remains for consideration in connection with the 
 .conveyance of persons, and that is the law relating to the 
 carriage of passengers on water by means of ships. Several 
 circumstances combine to make this subject one of great im- 
 portance, but all these circumstances are reducible to their 
 effects upon human minds, for the purposes of a work of this 
 nature. The dangers which are incident to sea transits, the 
 skill and experience which are requisite on the part of those 
 to whom the conduct of a ship is trusted, the unforeseen cir- 
 cumstances which may arise, and the promptitude which is 
 required upon the part of those who manage the ship in dealing 
 with emergencies, and little opportunities out of which gigan- 
 
 1 See also 21 & 22 Vict. c. 97, 22 & « Ibid. § 25. Similar provisions 
 23 Vict. c. 3, on the subject generally, have been made in some of the Ameri- 
 
 2 29 & 30 Vict. c. 90, § U. can statutes. 
 
CARRIERS OF PASSENGERS. 563 
 
 tic events may be hatched, — all these circumstances which im- 
 peril human life and happiness, all these circumstances which 
 are associated with the exercise of skill and judgment, and 
 which, but for the exercise of these, may result in catastrophe, 
 are important only in their relation to the human mind and 
 the human heart. Those events which are fraught with much 
 emotion we call important, and it is in relation to important 
 events that law is important, and not otherwise. Laws may 
 be looked upon as the precautions which the head takes for 
 the convenience of the heart. 
 
 Sec. 553. The Reason of the Importance of this Subject. — 
 Authority on board Ship. — Its Scope. — Defence. — Power to 
 leave the ship. — The extent of this kind of traffic, the no- 
 madic condition of men at the present time, the growing 
 necessity for emigration, and the leading of workers to work 
 instead of leaving them to starvation, — these circumstances 
 show how many hopes and fears must be connected with the 
 safety of the conveyance of passengers by means of ships, and 
 hence indicate the necessity of a definite rule of law and care- 
 ful legislative provisions. But the circumstances alluded to 
 necessarily impose other duties upon passengers than those 
 which devolve upon individuals travelling by land-carriage, 
 for it is evident that the dangers of the sea make it necessary 
 that the person to whose skill and conduct life and property 
 are intrusted, should be endowed with an almost unlimited 
 authority at the time of peril. There is no time to vote what 
 shall be done in a storm. Therefore it is a passenger's obvi- 
 ous duty to obey this authority in all matters which are within 
 its scope. 1 That scope may be defined as whatever is for the 
 security of the vessel, the discipline of the crew, and the safety 
 of all on board. 2 With regard to this duty of obedience, 
 which, owing to the circumstances of the case, is almost pe- 
 culiar to the carriage of passengers by means of ship, sev- 
 eral decisions indicate in what directions it primarily lies. 
 Thus a passenger on board a ship in time of danger is bound 
 to do works of necessity in defence of the ship if attacked, and 
 
 1 Boyce v. Bayliffe, 1 Camp. 5?. Aldworfh v. Stewart, 14 L. T. n. s. 
 
 2 King v. Franklin, 1 F. & F. 360 ; 862 ; 4 F. & F. 957- 
 
564 THE LAW OP CARRIERS. 
 
 for the preservation of those on board, if required to do so ; 1 
 but it was decided in the same case that he might, if he chose 
 — except under peculiar circumstances — depart the ship ; 
 and that, if he remained voluntarily, and risked his personal 
 safety to succor her in her distress, he might be entitled to 
 remuneration, in the nature of salvage, for his assistance. 2 
 In the case of Boyce v. Bayliffe, 3 which was an action for 
 false imprisonment oil board an East Indiaman on a voyage 
 from Bombay to London, it appeared in evidence that the 
 plaintiff was a passenger in the gunner's mess, and that the 
 defendant was captain of the ship. Near the Cape of Good 
 Hope two strange sail were descried in the offing supposed to 
 be enemies. The defendant immediately mustered all hands 
 on deck, and assigned to every one his station. The plaintiff, 
 with the other passengers, he ordered on the poop, where they 
 were to fight with small-arms. This order all readily obeyed 
 except the plaintiff, who, conceiving that he had been ill-used 
 by the defendant some time before in being forbidden to walk 
 on the poop, positively refused to go there, but offered to fight 
 in any other part of the ship with his messmates. The de- 
 fendant, for this contumacy, ordered him to be carried upon 
 the poop, and there kept him in irons during the whole night. 
 Next morning no enemy appeared, and the ship reached St. 
 Helena in safety. There the plaintiff quitted her. Lord 
 Ellenborough said, after the case opened, " that he did not 
 know, till he should hear all the facts, whether the defendant 
 might not be justified. A captain of a ship had authority to 
 do what was necessary for the safety of those on board. On 
 the approach of an enemy he had a right to assign them all a 
 station, which it was their duty to accept. As the plaintiff 
 had refused to obey the orders given him, perhaps his confine- 
 ment might be necessary to the discipline of the crew and the 
 security of the vessel ; and, if so, would be justifiable in law." 
 However, when it came out that the plaintiff had been kept 
 
 1 Newman v. Walters, 3 B. & P. Rob. Rep. 285 ; The Beaver, 3 Rob. 
 612. Rep. 292 ; The Joseph Harray, 1 Rob. 
 
 2 Newman v. Walters, 3 B. & P. Rep. 306. 
 
 612. See also The Two Priends, 1 s 1 Camp. 57. 
 
CARRIERS OP PASSENGERS. 565 
 
 all night in irons on the poop, his Lordship held that the 
 defendant had clearly exceeded the limits of his authority. 1 
 
 SEC. 554. Duties of Passenger Carriers. — Having spoken 
 of this preliminary matter, we are now in a position to con- 
 sider the questions as to rights and duties of carriers by water, 
 which are more analogous to those incident to the same trade, 
 when carried on by land carriage. It is quite evident that 
 they are, like the carriers of passengers by land, bound to use 
 the utmost care and diligence, and are responsible for any 
 want of like care and diligence upon the part of their servants. 
 They are likewise responsible for the sufficiency of the water 
 craft, or the seaworthiness of the ships in which they convey 
 passengers. Again, it is the duty of the owners and masters 
 of vessels, who hold themselves out as carriers of passengers, 
 to receive all persons who apply for a passage, but in this 
 case, as in the case of professed carriers of passengers by land, 
 the duty is subject to modifications, on account of the amount 
 of accommodation, the character of the person, the tender of 
 payment, and the like. In this respect there is no difference 
 between carriage of passengers by water from place to place 
 in the same country, and carriers of passengers beyond the 
 seas. 
 
 Sec. 555. Within and beyond the Realm. — In the case of 
 Bennett v. The Peninsular Steamboat Company, 2 the question 
 arose whether a man could be a common carrier of passengers 
 from a place that is within to a place that is without the realm' 
 — that is, whether or not the defendants were common car- 
 riers of passengers for hire from Southampton to Gibraltar. 
 It appeared on the trial, before Wilde, C. J., that the defend- 
 ants were the proprietors of certain steam-vessels, one of 
 which was advertised by circulars issued by the defendants 
 to sail every ten days from Southampton for Corunna, Riga, 
 Oporto, Lisbon, Cadiz, and Gibraltar, the circulars gave the 
 times of starting, and the terms upon which the passengers 
 and goods were to be conveyed to those places respectively, if 
 there was room for them. It appeared that the plaintiff went 
 
 1 See also Aldworth v. Stewart, 14 L. T. k. s. 862 ; 4 F. & P. 957. 
 
 2 6 C. B. 775. 
 
566 THE LAW OP CARRIERS. 
 
 to Southampton for the purpose of taking his passage by 
 " The Montrose," one of the defendants' vessels ; but that in 
 consequence of some communication which had been made to 
 the defendants by the Portuguese consul, their agent refused 
 to allow him to take a passage, although it was admitted that 
 there was plenty of room. It was submitted, on the part of 
 the defendants, that the common-law liability of carriers did 
 not extend to carriers of passengers, or to extra-territorial 
 carriers ; and that the company's circulars imported a limited, 
 and not a general undertaking to carry passengers. The 
 learned judge left it to the jury to decide whether or not there 
 was evidence to induce them to believe that the defendants 
 carried on the business of common carriers for hire, and the 
 jury found in the affirmative. Upon leave being given to the 
 defendants to move to enter a verdict for them, if the court 
 should be of opinion that this was not the fair legal inference 
 from the evidence, it was held that the question was properly 
 left to the jury ; and that the declaration of the plaintiff, when 
 it calls the defendants " common carriers of passengers," did 
 not mean to allege that they were carriers within the realm, 
 and according to the custom of the realm, but that they were 
 persons who were in the habit of conveying passengers for hire 
 from England to certain places beyond the seas. And every 
 person taking passage is presumed to contract in respect to 
 accommodations, &c, during the voyage (in the absence of 
 special agreement) in reference to the usage of the particular 
 voyage. In all cases of commercial usage, the law presumes 
 that the parties contracting did not mean to commit to writ- 
 ing the whole of their contract, by which they intended to be 
 bound, but that they contracted on the understanding that the 
 established usage should explain what is left doubtful. 
 
 Sec. 556. statutes. — Wherever it is possible to compel the 
 performance of duties which are imposed for the safety and 
 convenience of the public without recourse to actual legislative 
 enactment, it is expedient to forego legislative interference. 
 Wherever individuals can secure their rights by the remedies 
 which are within their reach in the civil courts of this country, 
 it may be well not to set in motion that other system of com- 
 
CARRIERS OP PASSENGERS. 567 
 
 pulsion which has recourse to pains and penalties for its effi- 
 cient working, for it seems to us that the perfection of laws 
 would be a law, and that when remedies and penalties are 
 multiplied in number, they are, in many cases, diminished in 
 their efficiency. But it was found that the remedies by civil 
 process were not sufficient to secure that care and skill upon 
 the part of ship-owners and masters which was so necessary 
 to the safety and welfare of the passengers they carried, 1 and 
 consequently several acts were passed with the view of secur- 
 ing the seaworthiness of ships, a due proportion between the 
 tonnage of ships and the number of passengers they carried, 
 the preservation of the health of the passengers during the 
 voyage, an adequate supply of water and provisions for their 
 use, and at the same time to maintain a due regard for the 
 interests of those who undertook the important duty of trans- 
 porting passengers by water. In the reign of George III. an 
 act 2 was passed which, after reciting that in various parts of 
 the United Kingdom several persons had been seduced to leave 
 their native country under false representations, and had suf- 
 fered great hardships on shipboard for want of water and pro- 
 visions and other necessaries, and of proper accommodation 
 on their passage, proceeded to make general regulations for 
 the carriage of passengers to foreign parts. All former stat- 
 utes were repealed by the 4 Geo. IV. c. 84, which was an act 
 "for regulating the carriage of passengers from the United 
 Kingdom to foreign parts," and that in its turn was repealed 
 by an act two years later, and another act " for regulating 
 vessels carrying passengers to foreign parts" 3 was substituted 
 
 1 During 1834, no fewer than seven- ships, unfit to carry dry cargoes, into 
 
 teen ships, with passengers on board this department Most part of the 
 
 bound for Quebec, were wrecked on the catastrophes alluded to may, we are 
 
 passage, — seven hundred and thirty- assured, be ascribed to this circum- 
 
 one emigrants losing their lives in con- stance, and to the misconduct of the 
 
 sequence, while many more lost part of master and crews. M'Culloch's Die. 
 
 their property and were reduced to the of Com. Sup. tit, " Emigrants ;" Ab- 
 
 greatest distress. Emigrants to Que- bott on Ship. 
 
 bee are mostly taken out in ships en- 2 43 Geo. III. c 56 See also 53 
 
 gaged in the timber trade, and it is Geo. III. o. 36; 56 Geo. III. c. 83; 
 
 well known that, speaking generally, 56 Geo. III. c. 114; 57 Geo. III. 
 
 these are a very inferior class, it being c. 10. 
 
 the usual practice to turn worn-out 3 6 Geo. IV. c. 116. 
 
568 THE LAW OP CARRIERS. 
 
 for it. Since that time various acts have been passed and 
 superseded ; 1 but the 18 & 19 Vict. c. 119 (the Passengers' 
 Act, 1855), together with some of the provisions of 16 & 17 
 Vict. c. 84, relative to the passage of natives of Asia or Africa, 
 and passages between the Island of Ceylon and certain parts 
 of the East Indies, and as amended by the 26 & 27 Vict. c. 51, 
 may be regarded as the law upon this subject. 
 
 This act came into operation on the 1st of October, 1855, 
 and it applies to every passenger ship proceeding on any voy- 
 age from the United Kingdom to any place out of Europe, and 
 not within the Mediterranean Sea, and on every colonial voy- 
 age such as it describes, 2 and it is to be carried into effect by 
 the Colonial Lands Emigration Commissioners. 3 By the third 
 section, the expression " passenger " is to signify all passen- 
 gers except cabin-passengers, and except laborers under in- 
 denture to the Hudson's Bay Company and their families, 
 conveyed in ships the property of and chartered by the said 
 company, and no persons shall be deemed cabin-passengers 
 unless the space allotted to their exclusive use shall be in the 
 proportion of at least thirty^six clear superficial feet to each 
 statute adult, nor unless they shall be messed together through- 
 out the voyage at the same table with the master or first 
 officer of the ship, nor unless the fare contracted to be paid by 
 them respectively shall be in the proportion of at least 30s. for 
 every week of the length of the voyage, as computed under the 
 provisions of the act for sailing vessels proceeding from the 
 United Kingdom to any place south of the equator, and of 20s. 
 for each vessel proceeding to any place north of the equator, 
 nor unless they shall be furnished with a duly signed contract 
 ticket in a prescribed form. 
 
 Sec. 557. Statutory Provisions. — The act contains numer- 
 ous provisions, by tonnage check and space check, for deter- 
 mining the number of passengers to be carried by any ship, 4 
 
 1 9 Geo IV. c. 21 ; 5 & 6 Will. IV. 2 18 & 19 Vict. o. 119, § 4. 
 
 o 56 ; 5 & 6 Viet. c. 107 ; 8 & 9 Vict. 8 Ibid. § 6. See Steel «. Schom- 
 
 c 14. ; 10 & 11 Vict, c 103 ; 11 & 12 berg, 4 E. & B. 623 ; 24 L. J. Q. B. 
 
 Vict, c 6; 12 & 13 Vict. c. 33; 14 87. 
 
 Vict. c. 1 ; 15 & 16 Vict. c. 44. * 18 & 19 Vict. c. 119, § 14. 
 
CARRIERS OP PASSENGERS. 569 
 
 for the signature of passengers' lists, 1 for the examination or 
 survey of all such ships before clearing-out, 2 for the construc- 
 tion of the beams and decks, 3 the arrangement and size and 
 occupancy of the berths, 4 for the construction of privies, 5 for 
 the securing of light, 6 ventilation, 7 boats, 8 life-buoys, 9 anchors, 9 
 fire-engines, 9 for efficient crew, 10 for sufficient ballast, 10 for the 
 supply of water, 11 and good provisions, 12 for a sufficient diet- 
 ary, 13 for the provision of cooks, 14 medical men, 15 stewards, 16 
 medicine and medical appliances. 17 Besides these, there are 
 further provisions which relate to the sickness of passengers 
 and the purifying of the vessel, 18 to the return of passage- 
 money to passengers re-landed on account of sickness, 19 for 
 the compensation of passengers where passages are not pro- 
 vided for them according to contract, 20 to the putting back of 
 ships for provisions, 21 to the transshipment of passengers in 
 case of wreck or damage, 22 to the remuneration of the owners 
 of ships which shall pick up or take off from a wreck passen- 
 gers at sea, 23 to penalties for the breach of any of these duties, 
 or for the wrongful landing of passengers. 24 
 
 SEC. 558. Rules and Regulations prescribed by Order in 
 Council. — The 59th section of the act provides that " it shall 
 be lawful for Her Majesty, by an order in council, to prescribe 
 such rules and regulations as to Her Majesty may seem fit, for 
 the following purposes (that is to say) : — 
 
 " 1st. For preserving order, promoting health, and securing 
 cleanliness and ventilation on board of ' passenger ships,' 
 proceeding from the United Kingdom to any port or 
 place in Her Majesty's possessions abroad. 
 
 1 18 & 19 Viet. c. 119, § 16. 13 Ibid. § 35. 
 
 2 Ibid. § 19. « Ibid. § 29. 
 
 8 Ibid. \ 20. 15 Ibid. \\ 41, 42. 
 
 4 Ibid. § 21 et seq. 16 Ibid. § 38. 
 
 6 Ibid. § 25. 1T Ibid. \ 43. 
 
 6 Ibid. § 26. " Ibid. § 45. 
 
 ' See also Dobson v. Hudson, 1 C. 19 Ibid. \ 46.' 
 
 B. n. s. 652 ; 26 L. J. C. P. 153. *» Ibid. § 48. 
 
 8 18 & 19 Vict. c. 119, § 27. a Ibid. § 50. 
 
 9 Ibid. § 27. 22 Ibid. § 51. 
 
 10 Ibid. § 29. 2» Ibid. § 52. 
 
 11 Ibid. §§ 31, 33, 34. a* Ibid. § 56, &c. 
 
 12 Ibid. 8 32. 
 
570 THE LAW OP CARRIERS. 
 
 " 2d. For permitting the use on board of ' passenger ships ' 
 of an apparatus for distilling water, and for denning, in 
 such case, the quantity of fresh water to he carried in 
 tanks and casks for the passengers. 
 " 3d. For prohibiting emigration from any port or ports at 
 any time when choleraic or any epidemic disease may 
 be generally prevalent in the United Kingdom or any 
 part thereof, or for reducing the number of passengers 
 allowed to be carried in passenger ships generally, or 
 from any particular port under the provisions of this 
 act. 
 " 4th. For requiring duly qualified medical practitioners to 
 be carried in passenger ships in cases where they would 
 not be required under the provisions of this act." 
 SEC. 559. Licensing Passage Brokers, making By-laws, &c. 
 — Definition of "Passenger Ship." — There are other provisions 
 for the licensing of passage brokers, for the making of by-laws 
 by the trustees of docks, regulating the landing and embarka- 
 tion of intending emigrants, and for licensing emigrant por- 
 ters, for the approval of such by-laws by the Secretary of State, 
 and others which it is unnecessary that we should allude to in 
 this place. 
 
 This act was, as we said above, amended by the " Passen- 
 gers' Act Amendment Act, 1863," 1 in several particulars. 
 Amongst these, the definition of a " passenger ship " given in 
 the 3d section of the act, just alluded to, was repealed; and it 
 was enacted that the term " passenger ship " should signify 
 every description of sea-going vessel, whether British or foreign, 
 carrying, upon any voyage to which the provisions of the said 
 " Passengers' Act, 1855," shall extend, more than fifty pas- 
 sengers, or a greater number of passengers than in proportion 
 of one statute adult to every thirty-three tons of the registered 
 tonnage of such ships, if propelled by sails, or than one statute 
 adult to every twenty tons, if propelled by steam. 2 This act 
 
 1 26 & 27 Viet. c. 51. 18 & 19 Vict. c. 119, § 3. With re- 
 
 2 It is evident, then, that the term gard to such, it has been held that per- 
 " passengers" includes all passengers sons who are in every respect cabin 
 except cabin passengers, as defined by passengers within the meaning of the 
 
CARRIERS OF PASSENGERS. 571 
 
 also repeals the prohibition contained in the " Passengers' Act, 
 1855," against carrying horses and cattle, or cargo in " pas- 
 senger ships," under certain conditions; 1 the provisions re- 
 specting passengers landed on account of sickness are extended 
 to cabin passengers, 2 those which relate to providing a pas- 
 sage and maintenance, for the passenger, in case of wreck or 
 damage to the passenger ship, before or after the commence- 
 ment of the voyage, or when taken, or brought back on ac- 
 count of such damage, to a port of the United Kingdom ; 3 
 and those which provide for the forwarding to his destination 
 of any passenger, or cabin passenger, from any colonial or 
 foreign port or place, other than that in which he had con- 
 tracted to land, 4 are also amended by this act. 
 
 SEC. 560. Expense of forwarding Passengers, &c. — There 
 are other provisions contained in the Passengers' Act Amend- 
 ment Act, 1863, with regard to the expenses incurred in for- 
 warding passengers under the sections alluded to being debts 
 to the Crown, and as to such passengers not being entitled to 
 the return of their passage-money ; but for a more thorough 
 and accurate knowledge of those provisions, the reader must 
 be referred to the statutes themselves. 
 
 Sec. 561. The Merchant Shipping Act, 1854. — Besides these 
 acts, the Merchant Shipping Act, 1854, 5 contains provisions as 
 to the build, equipment, inspection, survey and certificates of 
 passenger steamships (that is, all British ships carrying pas- 
 sengers between any place or places in the United Kingdom, 
 except steam ferry-boats or " bridges" working in chains), — 
 the number of passengers they are entitled to carry, their 
 engines, boats, life-boats, life-buoys, and provisions to prevent 
 the danger of collision, and the like. 6 
 
 Sec. 562. Penalties. — Payment of Fare. — Refusal to re- 
 third section, except that they have E. B. & E. 431; 27 L. J. M. C. 
 not been furnished with contract tick- 257. 
 
 ets, according to the form (K) of that 1 26 & 27 Vict. c. 51, § 8. 
 Act of 1855, are not to be counted as 2 Ibid. § 11. 
 passengers, so as to make a ship a pas- 8 Ibid. \ 14. 
 senger ship, which would not other- 4 Ibid. § 15. 
 wise be a passenger ship within the 6 17 & 18 Vict. c. 104. 
 meaning of the act. Ellis v. Pearce, 6 Ibid. §§ 291-329. 
 
572 THE LAW OP CARRIERS. 
 
 ceive Passenger. — One or two of the provisions of the last- 
 mentioned act may be quoted. The 322d section enacts that 
 " the following offenders, that is to say : — 
 
 " (1.) Any person who, after having been refused admission 
 into any steamer by the owner or person in charge 
 thereof, or any person in the employ of the owner 
 thereof, on account of such steamer being full, and 
 after having had the full amount of his fare (if he 
 paid the same) returned or tendered to him, neverthe- 
 less persists in attempting to enter the same ; and 
 " (2.) Any person, having got on board any steamer, who 
 upon being requested, on the like account, by the 
 owner or person in charge thereof, or by any person in 
 the employ of the owner, to leave such steamer before 
 the same has quitted the place at which such person 
 got on board, and upon having the full amount of his 
 fare (if he has paid the same) returned or tendered to 
 him, refuses to comply with such request, 
 shall for each such offence incur a penalty not exceeding forty 
 shillings, to be paid to the said owner." The 323d section 
 enacts that the following offenders, that is to say : — 
 
 " (1.) Any person who travels, or attempts to travel, in any 
 passenger steamer which has been duly surveyed in 
 conformity with the provisions of this act, without 
 having previously paid his fare, and with the intent to 
 avoid payment thereof ; and 
 " (2.) Any person who, having paid his fare for a certain 
 distance, knowingly and wilfully proceeds in any such 
 steamer beyond such distance, without previously pay- 
 ing the additional fare for the additional distance, and 
 with the intent to avoid payment thereof ; and 
 " (3.) Any person who knowingly and wilfully refuses or 
 neglects, on arriving at the point to which he has paid 
 his fare, to quit any such steamer, 
 shall for every such offence incur a penalty not exceeding five 
 shillings, in addition to the fares payable by him, such penalty 
 being payable to the owner of such steamer." 
 
 The 324th section enacts that "the master of any home 
 
CARRIERS OP PASSENGERS. 573 
 
 trade passenger steamship may refuse to receive on board 
 thereof any person who by reason of drunkenness, or other- 
 wise, is in such a state, or misconducts himself in such a 
 manner, as to cause annoyance to other passengers on board, 
 or, if such person is on board, may put him on shore at any 
 convenient place ; and no person so refused admittance, or put 
 on shore, shall be entitled to the return of any fare he may 
 have paid," 1 A master is not bound to receive or carry in 
 any ship goods of a dangerous nature, or parcels which he 
 suspects to contain goods of a danger6us nature, and may 
 cause such parcels to be opened to ascertain the fact, and any 
 person who carries or sends by any ship any such goods with- 
 out distinctly marking their nature outside the package, or 
 giving notice to the master or owner, is liable to a penalty of 
 100Z. 2 
 
 SEC. 563. Report of Accident to the Board of Trade. — Three 
 other sections are of importance to us here. The first of these 
 provides that the owner or master of any steamship which 
 has sustained or caused any accident occasioning loss of life 
 or serious personal injury, or has been damaged in such a way 
 as to affect her seaworthiness, must, within twenty-four hours 
 after the accident, or as soon thereafter as possible, report in 
 writing to the Board of Trade, under a penalty of 50Z. 3 
 
 SEC. 564. Report in Ca3e of Supposed Loss. — The Second 
 of these enacts that the owner of a steamship which from its 
 non-appearance he has reason to believe is lost, must within a 
 reasonable time send notice of the fact to the Board of Trade, 
 under a like penalty. 4 
 
 SEC. 565. Entry of Circumstances of Collision in Log-book. 
 — The third provides that in case of any collision, in which it 
 is practicable to do so, the master is required 'to enter, imme- 
 diately after the occurrence, a statement thereof and its cir- 
 cumstances in the official log-book (if any), to be signed by 
 himself and the mate, or one of the crew, under a penalty of 
 20Z. 6 
 
 1 See also 25 & 26 Viet. c. 63, § 35. 8 Ibid. \ 326. 
 See also Jenks v. Coleman, 2 Sumn. 4 Ibid. \ 327. 
 
 221 ; Pearson v. Duane, 4 Wall. 605. 6 Ibid. § 328. Besides these acts, 
 
 2 17 & 18 Vict. c. 104, § 329. the 18 & 19 Vict. c. 104, regulates 
 
574 THE LAW OF CARRIERS. 
 
 Sec. 566. Contracts for the Conveyance of Passengers. — 
 In speaking of contracts for carriage, and the implications 
 which were incident to them, we had occasion to point out 
 that the whole of the contract was scarcely ever fully ex- 
 pressed, and that much which obviously and necessarily fol- 
 lowed from what was said, was to be held in certain cases as 
 forming a part of the transaction, and consequently modifying 
 the contract as expressed. Under some circumstances the 
 existence of a usage will have the effect of introducing terms 
 into a contract which were not expressly stipulated for. 1 At 
 the same time it is to be understood that an express ex- 
 clusion of the usage, or its exclusion by express stipulations 
 incompatible with it, is competent to the person who contracts. 
 It is of importance to consider some of the cases in which the 
 incidents of a contract between a passenger and the owner or 
 master of a ship have been brought before courts of law, and 
 to understand the influence of an existing usage upon a con- 
 tract which may be made under such circumstances. 
 
 SEC. 567. Accommodation and Provisions. — In the Case 
 of Oorbin v. Leader, 2 the defendant, the master of an Bast 
 Indiaman about to sail from Calcutta on a voyage to London, 
 by an agreement under seal, granted and let to the plaintiff 
 the whole of the cabins and accommodations fitted up for the 
 reception, convenience, and conveyance of passengers on board 
 the ship ; and the defendant covenanted to promote, as far as 
 in him lay, the comfort and convenience of the plaintiff, and 
 such persons as he should engage and contract with, and who 
 should be received as passengers in and on board the said 
 ship, in consideration whereof the plaintiff covenanted with 
 the defendant, among other things, to pay the defendant the 
 sum therein agreed on, and* that he would in every respect 
 
 ships employed in the conveyance of riage of passengers in steamboats in 
 
 Chinese emigrants in the Chinese the United States will he found in 
 
 seas; and 24 & 25 Viet. c. 52, em- Angell on Carriers, Appendix, pp. 
 
 powers the governors of the Austra- 309-348. 
 
 lian colonies to regulate the number 1 See judgment of Parke, B., in 
 
 of passengers to be carried in vessels Hutton v. Warren, 1 M. & W. 474. 
 
 plying between the Australian ports. 2 6 C. & P. 32 ; 10 Bing. 275. 
 The American acts relating to the car- 
 
CAREIEES OP PASSENGEES. 575 
 
 support and uphold the authority and command of the defend- 
 ant, and in no way interfere with the management or navi- 
 gation of the ship, or with the affairs thereof. The plaintiff 
 further covenanted that if, in the progress of the voyage, it 
 should be necessary for the convenience, and at the request, 
 of the plaintiff, to touch at St. Helena, he would bear and 
 pay all port and other necessary charges, which might be in- 
 curred thereby. The court held that this stipulation, as to 
 the payment of the charges of touching at an intermediate 
 port, thus interwoven with the covenant of the defendant, 
 clearly showed that stopping in the course of the voyage 
 was a thing contemplated by the parties as conducive to the 
 convenience of the passengers, and that the defendant was 
 bound so to stop at the request of the plaintiff, unless it would 
 have interfered with the safety of the vessel. 
 
 Sec. 568. Deficiency of "Water. — In the same case it was 
 held that a covenant to keep up a supply of the necessary and 
 usual quantity of water for the use of the passengers is not 
 broken by a deficiency for a short time, occasioned by the 
 unusual length of the voyage. In an action against a captain 
 of a ship for not furnishing good and fresh provisions to a 
 passenger on a voyage, Lord Denman, in summing up, said : 
 "I think the result of the evidence is, that the captain did not 
 supply so large a quantity of good and fresh provisions as is 
 usual under such circumstances. But there is no real ground 
 of complaint, no right of action, unless the plaintiff has really 
 been a sufferer ; for it is not because a man does not get so good 
 a dinner as he might have had, that he is therefore to have 
 a right of action against the captain who does not provide all 
 that he ought ; you must be satisfied that there was a real 
 grievance sustained by the plaintiff." 1 
 
 Sec. 569. Time of Sailing. — Two cases bear upon the 
 question as to what will be regarded as a breach of the con- 
 tract entered into between the passenger and the ship-owner, 
 in case of a delay arising in the sailing of the ship. In the first 
 of these, the case of Yates v. Duff, 2 the plaintiff, the master 
 
 1 Young v. Fewson, 8 0. & P. 55. Thompson, 3 M. & W. 456 ; Sansom 
 
 2 5 C. & P. 369. See also Ellis v. v. Rhodes, 8 Scott, 544. 
 
576 THE LAW OP CARRIERS. 
 
 of a vessel, sought to recover damages from the defendant 
 for the breach of a verbal agreement, by which the defendant 
 had engaged two cabins on a voyage from England to Madras, 
 and agreed to pay a certain sum for them. He had refused to 
 go because the vessel, which was advertised to leave the docks 
 on a certain day, did not do so. At the trial it was proved to 
 be the rule of the East Indian trade that, when a passenger re- 
 fused to go in consequence of a delay in the sailing of a vessel, 
 he was to forfeit half the amount of the passage-money agreed 
 for. The ship, it appeared, did not leave the docks until the 
 21st of October. Chief Justice Tindal directed the jury to 
 find for the plaintiff, with half the passage-money as damages, 
 if they thought that the time of sailing was matter of repre- 
 sentation, but not an essential part of the contract, and that, 
 under the circumstances, the ship had sailed within reasonable 
 time. 
 
 Sec. 570. What amounts to Warranty. — The other case is 
 that of Cranston v. Marshall. 1 In that case the plaintiff, who 
 was resident in Ireland, having applied to certain emigration 
 agents in London, respecting a passage for himself and family 
 on board their ships to Australia, received in answer a letter 
 in which they agreed to convey him and his family for a cer- 
 tain sum of money. This letter was written on the fly-sheet 
 of a circular, headed " Emigration to Australia," and which 
 stated that ships " will be despatched on the appointed days 
 (wind and weather permitting), for which written guarantees 
 will be given." Then followed a list of ships, amongst which 
 the " Asiatic " was named as to sail from London on the 15th 
 of August, and from Plymouth on the 25th. In another part 
 of the circular it was stated : " Passengers from Ireland can 
 readily join at Plymouth. A deposit of one half the passage- 
 money to be paid at the time the berths are engaged, the bal- 
 ance to be paid prior to granting the embarkation order." 
 The plaintiff engaged a berth on board the " Asiatic," and 
 paid the agents a deposit ; but no written guarantee was given. 
 The " Asiatic " did not arrive at Plymouth until the 3d of 
 
 1 5 Exoh. 395 ; 19 L. J. Exoh. 340. (U. S. C. C.) 524, affirming s. c. 10 
 See also Cobb v. Howard, 3 Blatehf. N. Y. Leg. Obs. 353. 
 
CARRIERS OP PASSENGERS. 577 
 
 September, although not prevented by wind or weather. The 
 berth was kept vacant from London to Plymouth. The court 
 held that the statement in the circular was not a mere repre- 
 sentation, but a warranty, that the " Asiatic " would sail on the 
 days appointed, and that, as she did not, the plaintiff was jus- 
 tified in taking a passage on board another vessel, and was 
 entitled to recover from the emigration agents the amount of 
 the deposit, and the expenses he had been put to by the delay 
 at Plymouth. 
 
 - Sec. 571. Conveyance. — In the case of Coppen v. Braith- 
 waite, 1 the declaration, which was on an agreement to carry 
 the plaintiff in a ship to a particular place, and alleged, as a 
 breach, that the defendants by their agent caused him to be 
 disembarked at an intermediate point, and by their agent 
 caused the disembarkation to be conducted in a scandalous 
 and disgraceful manner, whereby, and also by contemptuous 
 usage and insulting language addressed to the plaintiff by the 
 agent in effecting the disembarkation, the plaintiff sustained 
 damage, was held good. In that case the judge had received 
 evidence of the language of the captain in putting the plaintiff 
 on shore, in which he described him as being a pickpocket, 
 and belonging to the swell mob ; and on the motion for a rule, 
 that evidence was held to have been rightly received. And it 
 was further held that the direction of the judge, that the de- 
 fendants were responsible for any injury naturally resulting 
 from the acts of the captain, when acting as their servant and 
 that the plaintiff was entitled to fair compensation for the in- 
 jury done to him in being put on shore at the intermediate 
 place, so far as injury arose from the act of the captain in 
 putting him on shore, was correct. And in the case of Cor- 
 bin v. Leader, 2 the particulars of which are stated above, it 
 was held that the captain was bound to put into port for the 
 convenience, and at the request and expense, of the plaintiff, 
 
 1 8Jur. 875. See also Mint v. Nor- 6 C. & P. 32. See also Denison v 
 ™ dl ' &0 - Tra nsp. Co., 6 Blatchf. 158 ; Wataga, 1 PJiil. xi, 7 ; Sunday v. Gor- 
 ii Conn. 554. But see Abbott v. don; Blatchf. & How. 569 ; Ho-wland v 
 Bradstreet, 55 Me. 530. The Layinia, 1 Pet. Adm. 123. 
 
 2 10 Bing. 275 ; M. & Scott, 751 ; 
 
578 THE LAW OP CAEEIEE8. 
 
 unless he could show that putting in would be dangerous. 
 That circumstance will of course modify many express con- 
 tracts, whether in respect of provisions, time, or convey- 
 ance. 
 
 Sec. 572. Duty of Captain to secure Safety of Passengers. — 
 It is the duty of the captain to fulfil his contract in all these 
 particulars, but there is a more imperative duty, and that is 
 the care of the safety of the lives of those on board. The 
 performance of the latter duty will in many cases excuse and 
 justify a breach in the former. "Were it not so, the captain 
 would be tempted to run all sorts of risks, which his experi- 
 ence told him it would be well to avoid, in order to free him- 
 self from the legal consequences which might follow the 
 smallest deviation from the terms of the contract. Such risks 
 would result in catastrophe, and these would bring about a 
 change in the laws. Laws have a way of making themselves. 
 If you made murder legal, your Act of Parliament would be 
 nonsense. There is a law in the human heart which legalizes 
 our legislation, and which in time repeals all useless statutes. 
 It is with the view of securing the safety of all that the per- 
 son to whose care and skill the lives of those on board the 
 ship are intrusted is endowed in the time of need with such 
 absolute authority. 1 And the convenience of other passengers 
 will, in many cases, warrant a breach of a contract which has 
 been made with one ; thus, conduct unbecoming a gentleman 
 in the strict sense of the word will justify a captain of a ship 
 excluding a passenger from the cuddy table, although he has 
 engaged by contract to provide for him there. But "it is 
 difficult to say," according to Tindal, C. J., " in what degree 
 want of polish would in point of law warrant a captain in 
 excluding a passenger from the cuddy ; " but he went on to 
 remark that " a man who had threatened the commanding 
 officer of the ship with personal violence would not be a fit 
 person to remain at the table at which he presided." 2 
 
 1 King v. Franklin, 1/. & P. 360 ; liffe, 1 Camp. 57; Newman v. Walters, 
 Aldworth v. Stewart, 14 L. T. n. s 3 B. & P. 612. 
 862 ; 4 P. & F. 957 ; Boyoe t>. Bay- 2 Prendergast ». Compton, 8 C. & 
 
 P. 454. 
 
CARRIERS OF PASSENGERS. 579 
 
 SEC. 573. Passage-money, Recovery of. — But there are 
 still other incidents of the contract entered into by a passenger 
 with a ship-owner. One of these has to do with the passage- 
 money, and one or two cases will indicate the principal rules 
 of law upon this subject. The case of Gellan v. Simpkin 1 
 was an action for money had and received, to recover passage- 
 money paid to the defendant as master of a ship in which he 
 had agreed to carry the plaintiff as a passenger to Antigua. 
 The plaintiff, who had paid the money before the commence- 
 ment of the voyage, had intended to have gone on board at 
 Portsmouth, but the luggage was shipped in the river Thames, 
 and in proceeding round from thence to Portsmouth, the ship 
 was lost. It appeared in evidence that it is usual for the 
 passage-money to be paid in London, and that the stores for 
 the use of passengers were always put on board in the river. 
 Chief Justice Gibbs, in his direction to the jury, said : " If 
 the money had been to be paid at the end of the voyage, the 
 defendant could not have recovered any part of it, there be- 
 ing an entire contract to carry the plaintiff from London to 
 Antigua. But if the voyage was commenced, and the ship 
 was prevented from completing it by perils of navigation, the 
 captain may be entitled to retain the passage-money previously 
 paid to him. The contract for this purpose may either be 
 express, or may be evidenced by established usage. Here it 
 is proved that in West India voyages the passage-money is 
 paid before the voyage commences, and it does not appear to 
 be returned, although the voyage is defeated. On the other 
 hand, if the ship were lost before the commencement of the 
 voyage for which these parties had contracted, the money paid 
 by anticipation must be returned." 2 
 
 Sec. 574. Obligation to repay. — Where the executors of 
 an East India captain, who had died in the East Indies before 
 the commencement of the homeward voyage, brought an action 
 against the chief mate of his ship, on whom the command had 
 devolved, to recover the amount of the sum he had received 
 from the passengers brought home in the ship, for their 
 
 1 4 Camp. 241. & P. 392 ; Denison v. Wataga, 1 
 
 a See also Leeman v. Gordon, 8 C. Phil, xi, 7. 
 
580 THE LAW OP CARRIERS. 
 
 passage and entertainment during the voyage, it was con- 
 tended for the plaintiff that the passage-money must belong 
 to the representatives of the captain ; for the defendant, that 
 he was entitled to the whole because he had the actual com- 
 mand during the voyage. " If," said Bayley, J., " there be 
 no usage on the subject, I think the law is, that where the 
 captain has contracted to carry passengers, and dies, his rep- 
 resentatives are entitled to the benefit of the contract, and 
 may maintain an action for the passage-money. If the mate 
 lays out money in purchasing stores for such passengers, he is 
 the agent of the representatives for that purpose, and may 
 oblige them to repay him. But where, after the death of the 
 captain, the mate contracts to carry passengers on the home- 
 ward voyage, he is himself entitled to the benefit of the con- 
 tract, and may retain the whole of the passage-money. If 
 for the entertainment of such passengers he has any part of 
 the stores laid in by the captain, for so much he must account 
 to the captain's representatives." 1 So, where the plaintiff 
 contracted to carry the defendant, his family, and luggage 
 from Demerara to Flushing, and in the course of the voyage, 
 within four days' sail of Flushing, the ship was captured by 
 an English ship of war and brought to England, and the ship 
 and cargo libelled for prize in the Court of Admiralty, and 
 the cargo condemned, and proceedings still pending against 
 the ship ; but the defendant and his family were liberated, and 
 their luggage in fact restored to their possession : it was held 
 by the court, that, however the question might be as to the 
 plaintiff's right to recover passage-money upon an implied 
 assumpsit pro ratd itineris, if the ship was restored, yet 
 pending the proceedings against the ship, as prize in the 
 Admiralty Court, no such action could be maintained, for non 
 constat but that the ship might be condemned and the freight 
 decreed to the captors. 2 Again, in an action to recover 
 passage-money brought by a mortgagee of a ship against a 
 mortgagor, which passage-money had been recovered by the 
 mortgagor as part of the earnings of the ship, before the ship 
 
 1 Siordet v. Brodie, 8 Camp. 253. 
 
 * Muloy v. Backer, 5 East, 316 ; 1 Smith, 447. 
 
CARRIERS OP PASSENGERS. 581 
 
 was taken possession of by the mortgagee, it was decided that 
 the mortgagee could not recover. 1 
 
 Sec. 575. insurance by the Owners. — In another case, in 
 which a policy of insurance was effected upon the passage- 
 money of emigrants upon a voyage from Liverpool to Boston 
 against the perils of the sea, at the end of the policy there 
 was the following memorandum : " on passage-money of emi- 
 grants, subject to pay a loss pro ratd, and subject to the 
 clauses and conditions under sections 47 to 51 of the 15 & 16 
 Vict. c. 44, and against these risks only." Held, that the policy 
 extended to any expense occasioned by the perils insured 
 against, which were thrown upon the ship-owners by any of 
 the enumerated sections ; but not to the expense of maintain- 
 ing the passengers during the detention of the ship at a foreign 
 port for the purpose of repairs, the ship afterwards completing 
 the voyage with the passengers on board, such expense being 
 cast on the owners by section 32. 2 In the case of Gibson v. 
 Bradford, 3 which was referred to in the last-mentioned case, it 
 was held that a policy of insurance by the owners against all 
 liabilities to which they might become by perils of the sea 
 liable under sections 49 and 50 of the 15 & 16 Vict. c. 44, 
 covered a liability for expenses incurred by the captain in 
 forwarding, without the intervention of the governor, and 
 before the lapse of six weeks, passengers who were in a 
 colony to which they were not ultimately destined, in con- 
 sequence of the loss of the ship in which they sailed. 
 
 Sec. 576. Lien on Passenger's Luggage. — Before quitting 
 this question of passage-money, it may be expedient to state 
 that the law with regard to lien on the passenger's luggage 
 for his passage-money is the same in relation to carriers by 
 water as it is in relation to carriers by land. The master has 
 consequently no lien on the passenger himself, or upon the 
 clothes which he is actually wearing when about to leave the 
 vessel. 4 And it may not be supererogatory to state that in a 
 
 1 Willis v. Palmer, 7 C. B. k. s. 1 Jur. v. s. 1164 ; 25 L. J. Q. B. 
 310 ; 6 Jur. u. s. 732 ; 29 L. J. C. P. 16. 
 194 ; 8 W. R. 295. 8 4 El. & Bl. 586 ; 1 Jur. N. s. 520 ; 
 
 a Willis v. Cooke, 5 Bl. & Bl. 641 ; 24 L. J. Q. B. 159. 
 
 4 Wolf v. Summers, 2 Camp. 631. 
 
582 
 
 THE LAW OP CARRIERS. 
 
 case in which a passenger in a steamer from America paid for 
 and received a passenger-ticket from the agents of the owners, 
 containing a condition exempting the owners from liability in 
 case of loss or detention of the ship by accidents of naviga- 
 tion, or perils of the sea, and from responsibility for luggage, 
 goods, or other description of property, unless bills of lading 
 had been signed therefor, it was held that, the latter condition 
 not having been observed by the passenger, he could not re- 
 cover for the loss of his luggage, though the loss was caused 
 by the ship having been wrecked, owing to the negligence of 
 the captain. 1 
 
 Sec. 577. Collisions. — The many questions which arise in 
 connection with collisions between vessels, and the relation of 
 these questions to that of negligence, would open up a wide 
 field of legal speculation and research. The decisions, some 
 of which are noted below, 2 have been very many upon this 
 
 1 Wilton v. Royal Atlantic Mail 
 Steam Navigation Co., 10 C. B. n. s. 
 453 ; 8 Jur. n. s. 232 ; 30 L. J. C. P. 
 369 ; 9 W. R. 748. 
 
 2 Buller v. Fisher, 1 Esp. 67 ; Smith 
 v. Scott, 4 Taunt. 125 ; Sells v. Brown, 
 9 C. & P. 601 ; Raisin v. Mitchell, 9 
 C. & P. 613. See Abbott on Ship., 
 11th ed., pt. iv. eh. 6, p. 341 et seq. ; 
 Hay v. Le Neve, 2 Shaw's Scotch Ap- 
 peal Cases, 395 ; Kent v. Blstob, 3 
 East, 18 ; Dowell v. Gen. Steam Nav. 
 Co., 5 E. & B. 195 ; Gen. Steam Nav. 
 Co. v. Mann, 14 C. B. 127 ; Vander- 
 plank v. Miller, 1 M. & M. 21 ; Lack 
 v. Seward, 4 C. & P. 106 ; Vennal v. 
 Garner, 1 Cro. & Mee. 21 ; Cattlin v. 
 Hills, 8 C.B. 123; Tkorogood«. Bryan, 
 8 C. B. 115 : Rigby v. Hewitt, 5 Ex. 
 240 ; The China, 7 Wall. (U. S.) 53 ; 
 Camp v. The Marcellus, 1 Cliff. (U. S. 
 C. C.) 481 ; The Alabama v. The 
 Gamecock, 1 Ben. (U. S. D. C.) 471 ; 
 The Siren, 7 Wall. (U. S.) 152 ; The 
 Grace Girdler, 7 Wall. (U. S.) 196 ; 
 The Nichols, 7 Wall. (U. S.) 656; 
 The Bella, 1 Ben. (U. S. D. C.) 317 ; 
 
 Baker v. Steamship City of New York, 
 1 Cliff. (U. S. C. C.) 75 ; The Illinois, 
 5 Blatchf. (U. S. C. C.) 256; The 
 Scranton and Wm. P. Burden, 5 
 Blatchf. (U. S. C. C.) 400; The Island 
 City, 5 Blatchf. (U. S. C. C.) 264; 
 The Parkersburgh, 5 Blatchf. (U. S. 
 C. C.) 247 ; Wakefield v. The gov- 
 ernor, 1 Cliff. (U. S. C. C.) 93 ; The 
 Wings of the Morning, 5 Blatchf. 
 (U. S. C. C.) 15 ; The Bedford, 5 
 Blatchf. (U. S. C. C.) 200; The Scotia, 
 5 Blatchf. (U. S. C. C.) 227; The 
 Nellie, 5 Blatchf. (D. S. C. C.) 245 ; 
 Pope v. The R. B. Porbes, 1 Cliff. 
 (U. S. C. C.) 331 ; Amoskegg, &c. Co. 
 v. The John Adams, 1 Cliff. (U. S. 
 C. C.) 404; The Chesapeake, 5 
 Blatchf. (U. S. C. C.) 411 ; The Ocean 
 Queen, 5 Blatchf. (U. S. C. C.) 493 
 Meegs v. The Northerner, 1 Wash 
 Terr. 91 ; Philadelphia, &c. R. R Co. 
 25 Md. 521 ; The Pavorita, 1 Ben 
 (U. S. D. C.) 23 ; The Empire State, 
 1 Ben. (U. S. D. C.) 57 ; The Bride- 
 port, 1 Ben. (U. S. D. C.) 65 ; Wright 
 v. Norwich, &c. Transp. Co., 1 Ben. 
 
CARRIERS OF PASSENGERS. 583 
 
 question, and upon those which are connected with it ; but as 
 the principles which will be discovered to be the foundation of 
 these are identical with those which have ruled the decisions 
 in the case of land carriage, and as the subject is too exten- 
 sive to be dealt with efficiently within the limits at our dis- 
 posal, we must be content to do no more than mention it in 
 this connection, and refer the reader to the works and cases 
 whence he can derive fuller information as to matters of de- 
 tail. The extent of the subject will be understood from the 
 words of Lord Stowell in the case of The Woodrop Sims, 1 
 with regard to the possibilities under which a collision may 
 occur. "In the first place," he said, " it may happen without 
 blame being imputed to either party ; as where the loss is 
 occasioned by a storm, or any other vis major. In that case 
 the misfortune must be borne by the party on whom it happens 
 to light, the other not being responsible to him in any degree. 2 
 Secondly, a misfortune of this kind may arise where both 
 parties are to blame, or where there has been want of due dili- 
 gence or of skill upon both sides ; in such case the rule of 
 law is that the loss must be apportioned between them as 
 having been occasioned by the fault of both of them. Thirdly, 
 it may happen by the misconduct of the suffering party only, 
 and then the rule is that the sufferer must bear his own bur- 
 den. Fourthly, it may have been the fault of the ship which 
 ran the other down, and in this case the innocent party would 
 be entitled to an entire compensation from the other." Other 
 questions as to anchorage, the sufficiency of the mooring, the 
 
 (U. S. D. C.) 156 ; The Cayuga, 1 396 ; The Western Metropolis, 2 Ben. 
 
 Ben. (U. S. D. C.) 171 ; The City of (U. S. D. C.) 399 ; The Emilie, 2 
 
 Paris, 1 Ben. (U. S. D. C.) 174; The Ben. (U. S. D. C.) 419 ; The Thorn- 
 
 Scranton, 2 Ben. (U. S. D. C.) 25 ; ton, 2 Ben. (U. S. D. C.) 429 ; The 
 
 The Baltic, 2 Ben. (U. S. D. C.) 98 ; Baltic, 2 Ben. (U. S. D. C.) 452 ; The 
 
 The Beaver, 2 Ben. (U. S. D. C.) 118; America, 2 Ben. (U. S. D. C.) 475 ; 
 
 The Alhambra, 2 Ben. (U. S. D. C.) The Warren, 2 Ben. (U. S. D. C.) 
 
 158 ; The D. S. Gregory, 2 Ben. (U.S. 498 ; The Queen, 2 Ben.' (U. S. D. C.) 
 
 D. C.) 166 ; The St. John, 2 Ben. 533 ; The Brooklyn, 2 Ben. (U. S. 
 
 (U. S. D. C.) 192 ; The Elizabeth D. C.) 547. 
 
 English, 2 Ben. (U. S. D. C.) 365 ; M Dods. 83. 
 
 The Louisiana, 2 Ben. (U. S. D. C.) a See Story on Bailm. § 608. 
 371 ; The Baltic, 2 Ben. (U. S. D. C.) 
 
584 THE LAW OF, CARRIERS. 
 
 duty of ships in motion avoiding ships at rest, the necessity of 
 placing a buoy over a ship sunk by inevitable accident in a 
 navigable river, of removing wreck, of bearing a light when 
 anchored in a navigable river, the rule of the road, and the 
 like, 1 do not fall really within the scope of our subject, any 
 .more than the system of points and signals is in connection 
 with the law applicable to railway travellers. Some writers 
 upon the law of carriers have thought it necessary to enter 
 upon this complicated branch of the law of shipping as admin- 
 istered in the Court of Admiralty and in the common-law 
 courts; but to us it seems unnecessary, in speaking of the 
 carriers of passengers by water, to do more than refer to the 
 subject. 2 
 
 1 See Holt's Rule of the Road. senger carriers, Maclachlan's Law of 
 
 2 See further, on the subject of pas- Shipping, ch. 7, p. 290. . 
 
ACTIONS AGAINST AND BY CARRIERS. 
 
 585 
 
 CHAPTER XII. 
 
 ACTIONS AGAINST AND BY CARRIERS. 
 
 Sec. 578. 
 
 Local Arrangement of the Sub- 
 ject. 
 
 Sec. 611. 
 
 579. 
 
 Remedy for not Carrying. 
 
 612. 
 
 580. 
 
 Absolute Tender not necessary. 
 
 
 581. 
 
 Where Action will lie. 
 
 613. 
 
 582. 
 
 Statutory Provisions. 
 
 
 583. 
 
 Notice of Action to Railway 
 Companies. 
 
 614. 
 
 584. 
 
 Rule of Construction. 
 
 
 585. 
 
 Remedy for Loss, Damage to, 
 or Non-delivery of Goods. 
 
 615. 
 
 586. 
 
 Form of Action in such Cases. 
 
 616. 
 
 587. 
 
 Rule in Brotherton v. Wood, 
 
 617. 
 
 
 and other Cases. 
 
 618. 
 
 588. 
 
 Rule in Woodward v. Booth. 
 
 
 589. 
 
 Advantages of each Mode of 
 
 619, 
 
 
 Declaring. 
 
 620. 
 
 590. 
 
 Non-joinder of Parties. 
 
 621. 
 
 591. 
 
 Joinder of Trover and Case. 
 
 622. 
 
 592. 
 
 Conversion, what it is. 
 
 
 593. 
 
 Assumpsit . 
 
 
 594. 
 
 Advantages of Action of As- 
 
 623. 
 
 
 sumpsit. 
 
 624. 
 
 595. 
 
 Who may sue. 
 
 625. 
 
 596. 
 
 Vendee or Consignee generally. 
 
 
 597. 
 
 Consignor may sue when. 
 
 626. 
 
 598. 
 
 The Principle involved. 
 
 627. 
 
 599. 
 
 General Rule. 
 
 628. 
 
 600. 
 
 Factor, Carrier, &c, may sue 
 
 
 
 for Goods when. 
 
 629. 
 
 601. 
 
 Rule in Metcalfe v. London, &c. 
 
 630. 
 
 
 Railway Co. 
 
 631. 
 
 602. 
 
 When Reward for Carriage 
 
 
 
 need not be stated. 
 
 632. 
 
 603. 
 
 Who can sue. 
 
 633. 
 
 604. 
 
 Principal and Agent. 
 
 
 605. 
 
 Statute of Frauds. 
 
 634. 
 
 606. 
 
 General Rule. 
 
 
 607. 
 
 Where Consignee may sue, 
 
 635. 
 
 609. 
 610. 
 
 though Property has not 
 
 passed. 
 Property in Goods. 
 Bill of Lading denned. 
 Carrier denned. 
 
 637, 
 
 Where Delivery to Carrier is 
 Delivery to Purchaser. 
 
 Where Consignee cannot be 
 found. 
 
 Carrier's Duty. — Consignor's 
 Remedy. 
 
 In Case of Carriers by Water, 
 Bill of Lading to be referred 
 to. 
 
 Bill of Lading, Evidence of 
 what. 
 
 Parties to be sued. 
 
 Latent Defects in Men. 
 
 Master liable for Injury by Ser- 
 vant. 
 
 The Agent's Authority. 
 
 Servant only liable when. 
 
 Joinder of Parties. 
 
 Distinction in this Respect be- 
 tween Carriers by Land and 
 by Water. 
 
 Rule in Blakie v. Stembridge. 
 
 Scotch Rule. 
 
 Option of Plaintiff to sue Mas- 
 ter or Servant. 
 
 Objects of the Law. 
 
 The Pleadings. 
 
 The Common-law Procedure 
 Act. 
 
 Declarations. 
 
 Reward, Carriage for. 
 
 Receipt of Goods and Breach of 
 Contract. 
 
 In Case of Gross Negligence. 
 
 Terms in Ticket, Part of Con- 
 tract. 
 
 Limitation of Liability to be 
 considered. 
 
 Reasonable Time. 
 
 Breach of Implied Duty suffi- 
 cient. 
 
 The Words "safely" and "se- 
 curely." 
 
 Termini to be correctly stated. 
 
586 
 
 THE LAW OP CARRIERS. 
 
 Sec. 639. 
 
 Pleas. 
 
 Sec. 679. 
 
 640. 
 
 Plea of Not Guilty. 
 
 680. 
 
 641. 
 
 Rule in Wyld v. Pickford. 
 
 
 642. 
 
 Common-law Procedure Act, 
 1852. 
 
 681. 
 
 643. 
 
 What may be proved under 
 General Issue. 
 
 682. 
 
 644. 
 
 What may amount to General 
 Issue. 
 
 683. 
 
 645. 
 
 What amounts to Argumenta- 
 
 684. 
 
 
 tive Traverse of Bailment. 
 
 685. 
 
 646. 
 
 Admission of Allegation. 
 
 
 647. 
 
 Inevitable Accident. 
 
 686. 
 
 648. 
 
 Replications. 
 
 687. 
 
 649. 
 
 Evidence. 
 
 688. 
 
 650. 
 
 Character as Carrier must be 
 
 
 
 established. 
 
 689. 
 
 651. 
 
 Delivery to, must be shown. 
 
 690. 
 
 652. 
 
 Delivery on Wharf to Officer. 
 
 
 653. 
 
 Ordinary Course of Business. 
 
 691. 
 
 654. 
 
 Production of Books by De- 
 
 
 
 fendant. 
 
 692. 
 
 655. 
 
 Proof of Loss of Goods. 
 
 693. 
 
 656. 
 
 Servant's Evidence. 
 
 694. 
 
 657. 
 
 Rule in Hawkins v. Finlayson. 
 
 695. 
 
 658. 
 
 Burden of Proof. 
 
 696. 
 
 659. 
 
 Proof in Assumpsit and in 
 
 697. 
 
 
 Case. 
 
 698. 
 
 660. 
 
 Non-delivery within Reasonable 
 Time, Proof of. 
 
 699. 
 
 661. 
 
 Contracts. 
 
 700. 
 
 662. 
 
 As to Value of Lost Goods. 
 
 701. 
 
 663. 
 
 Disqualification of Witness. 
 
 702. 
 
 664. 
 
 Evidence for Carrier in Non- 
 
 
 
 assumpsit. 
 
 703. 
 
 665. 
 
 Under General Issue. 
 
 704. 
 
 666. 
 
 Damages. 
 
 705. 
 
 667. 
 
 For refusing to carry. 
 
 706. 
 
 668. 
 
 Same, continued. 
 
 707. 
 
 669. 
 
 Illustrations. 
 
 708. 
 
 670. 
 
 Effect of Notice in Case of Spe- 
 
 709. 
 
 
 cial Damage. 
 
 710. 
 
 671. 
 
 Damages for Injury to or Loss 
 
 
 
 of Goods. 
 
 711. 
 
 672. 
 
 Distinction. 
 
 712. 
 
 673. 
 
 Same, continued. 
 
 713. 
 
 674. 
 
 Under the Carriers' Act. 
 
 714. 
 
 675. 
 
 Common-law Rule. 
 
 715. 
 
 676. 
 
 Consequential Damages. 
 
 
 677. 
 
 Consequences of Breach of 
 
 716. 
 
 
 Contract. 
 
 717. 
 
 More Precise Rule necessary. 
 
 Consequential Damage not al- 
 lowable when. 
 
 Rule in Davis v. North-Western 
 Railway Co. 
 
 Rule in Simmons v. South-East- 
 ern Railway Co. 
 
 What will be Measure of Dam- 
 age. 
 
 Where Test is inapplicable. 
 
 Amount that will replace the 
 Goods. 
 
 Wider Liability. 
 
 Contributory Damage. ■ 
 
 Where Damage results from 
 Wrongful Act. 
 
 Exemplary Damages when. 
 
 Master's Duty as to Repair of 
 Ship. 
 
 Actions against Passenger Car- 
 riers. 
 
 Parties to sue. 
 
 7 & 8 Vict. c. 85. 
 
 Form of Action. 
 
 Advantage of Assumpsit. 
 
 Lord Campbell's Act 
 
 When Executor must sue. 
 
 Only one Action. 
 
 Particulars of Person to be 
 given. 
 
 27 & 28 Vict. c. 95. 
 
 Payment of Money into Court. 
 
 Rule in Read v. Great Eastern 
 Railway Co. 
 
 Persons to be sued. 
 
 Where Action is maintainable. 
 
 Contributory Negligence. 
 
 Evidence. 
 
 In Case of Carriers by Water. 
 
 Damages. 
 
 Same, continued. 
 
 Cases under Lord Campbell's 
 Act. 
 
 Damages not a Solatium. 
 
 Nominal Damages. 
 
 What gives Right to recover. 
 
 Same, continued. 
 
 How Damage must have ac- 
 crued. 
 
 Jurisdiction of Admiralty. 
 
 31 & 32 Vict. u. 119. 
 
 678. Average Percentage on Profits. 
 
 Sec 578. Logical Arrangement of the Subject. — We are 
 now in a position to consider the legal remedies which belong 
 to carriers, or those who deal with them, and the processes by 
 
ACTIONS AGAINST AND BY CARRIERS. 587 
 
 which the machinery of the law can be put in motion. The 
 logical arrangements of our subject made it necessary that this 
 portion of the law of carriers should be placed after the con- 
 sideration of the rules of law which actually apply to cases of 
 this nature, and which will actually be put in force by legal 
 tribunals. The method of a text-book is to be to some extent 
 determined by the actual sequence of events in the practice of 
 a lawyer, and in all cases the lawyer has to come to some 
 definite opinion as to the merits of the case, and the possibility 
 or non-possibility of obtaining a legal remedy, before he is 
 called upon to consider the form of the action, the pleadings 
 in the case, or the evidence necessary to support it. Indeed, 
 a case only comes into court when two lawyers have given 
 different opinions concerning the law applicable to the facts, 
 so that a judicial decision is an arbitration between these two 
 diverse opinions. 
 
 SEC. 579. Remedy for not Carrying. — Form of Action. — We 
 have already seen that it is the duty of a carrier to receive 
 all goods that may be brought to him to be carried, if he can 
 carry them, if reasonable compensation is offered, and if the 
 nature of his trade has advertised him to the public as a car- 
 rier of that particular kind of goods ; and that, if he refuses 
 to perform this duty, he is liable to an action at law. 1 The 
 form of action under these circumstances is case, and it is 
 necessary to aver in the declaration that the plaintiff was 
 willing and ready to pay the defendant the amount which the 
 defendant was legally entitled to receive for the receipt of 
 carriage of them, though it is not necessary that it should 
 aver an absolute tender. 
 
 SEC. 580. Absolute Tender not necessary. — In Pickford V. 
 Grand Junction Railway Company, 2 the declaration stated, 
 " That whereas the defendants, before and at the time herein- 
 after mentioned, to wit, on the 24th of November, 1840, were 
 
 1 See Parker v. Bristol & Exeter on the same principle that an inn- 
 Rail. Co., 17 L. T. 202. keeper may be indicted for refusing to 
 
 2 8 M. & W. 372 ; 9 D. P. C. 766 ; receive a guest. Per Patteson, J., 
 6 Rail. Cas. 592 ; 5 Jur. 731. It ap- Pozzi v. Shipton, 1 P. & D. 12 ; Rex 
 pears that a carrier may be indicted v. Ivens, 7 C. & P. 213 ; 4 Bl. Com. 
 for a breach of his common-law duty, 167. 
 
588 THE LAW OP CABRIERS. 
 
 common carriers of goods- and chattels for hire, from Birming- 
 ham, in the county of Warwick, to Manchester, in the county 
 of Lancaster, and from Manchester aforesaid to Birmingham 
 aforesaid, and thereupon heretofore, to wit, on the 24th of 
 November, 1840, the plaintiff caused to be tendered to the 
 defendants, they being such common carriers as aforesaid, to 
 wit, at a certain place in Birmingham aforesaid, being the 
 place by them then used in the way of their said business, as 
 common carriers for the receipt of parcels and goods to be by 
 them carried and conveyed as such common carriers as afore- 
 said, a certain parcel of goods of the plaintiff's, to wit, a 
 hamper containing divers goods then of great value, to wit, of 
 the value of 100Z. ; and then requested the defendants to re- 
 ceive and to carry and convey the same from Birmingham 
 aforesaid to Manchester aforesaid, and the defendants then 
 had ample convenience for receiving and carrying and con- 
 veying the same according to the said requirements of the 
 plaintiffs in that behalf, and the plaintiffs were then ready and 
 willing, and then offered to fay to the defendants such sum of 
 money as the defendants were legally entitled to receive, for the 
 receipt and carriage and conveyance of the said parcel, and all 
 other charges whatsoever which the defendants were then au- 
 thorized, or in any wise entitled to make or receive for the 
 receipt, carriage, and conveyance of the said parcel from Bir- 
 mingham aforesaid to Manchester aforesaid, to wit, the sum 
 of 21. ; and the defendants then had notice of the premises ; 
 yet the defendants, not regarding their duty as such common 
 carriers as aforesaid, but contriving and wrongfully and un- 
 justly intending to injure the plaintiffs, though they did re- 
 ceive as aforesaid and carry and convey the goods of divers 
 other persons from Birmingham aforesaid to Manchester afore- 
 said, did not, nor would, at the said time when they were so 
 requested or at any time afterwards, receive the said parcel, 
 or carry or convey the same from Birmingham aforesaid to 
 Manchester aforesaid, but wholly neglected and refused so to 
 do, though they might, and could, and ought, as such carriers, 
 to have received and carried and conveyed the same as afore- 
 said, whereby the plaintiffs were then forced and obliged to 
 
ACTIONS AGAINST AND BY CARRIERS. 589 
 
 carry and convey the said parcel from Birmingham aforesaid 
 to Manchester aforesaid with great labor, cost, and inconven- 
 ience, and were put to great expense, &c, in and about the 
 carriage and conveyance of the said parcel, &c, and were and 
 are otherwise greatly annoyed, injured, inconvenienced, and 
 damaged." To this declaration there was a special demurrer, 
 assigning for cause that the declaration did not aver a tender 
 to the defendants of the money which they were entitled to 
 receive for the carriage of the goods. In this case it was 
 held that the averment was sufficient, and that it was not 
 necessary to aver an actual tender of money for the carriage. 
 Baron Parke, who delivered the judgment, said : " The court 
 think that this is not like the case of a strictly legal tender, 
 a term which is only applicable where an absolute duty, such 
 as the payment of an antecedent debt, is imposed on the party 
 making it, in which case the tender stands in the place of 
 payment, and is in fact payment, so far as it is in the power 
 of the party tendering it to make one, but which remains in- 
 complete, only because the party to whom the money is offered 
 refuses to accept it. Such a tender we consider to be alto- 
 gether unnecessary in the present case, the acts to be done by 
 both parties, viz. the receipt of the goods, and the payment of 
 a reasonable sum for their carriage, being contemporaneous 
 acts, the carrier being bound to receive the goods on the 
 money being paid or tendered, and the bailor to pay the 
 reasonable amount demanded on the carrier's taking charge 
 of the goods. The case of Rawson v. Johnson 1 clearly shows 
 that, whenever a duty is cast on a party in consequence of a 
 contemporaneous act of payment to be done by another, it is 
 sufficient, if the latter pay or be ready to pay the money when 
 the other is ready to undertake the duty. Here the acts to be 
 done by the plaintiffs and defendants are altogether contem- 
 poraneous. The money is not required to be paid down by 
 the plaintiffs until the carrier receives the goods which he is 
 bound to carry. Our judgment, therefore, must be for the 
 plaintiffs. 2 
 
 1 1 East, 203. 
 
 2 See also Ashmole v. Wainwright, 2 Q. B. 837. 
 
590 THE LAW OP CARRIERS. 
 
 Sec. 581. Where Action will lie. — Having stated this 
 much, we think it well, before considering these forms of 
 action and the incidents of each in connection with actions 
 against carriers, to consider the preliminary question as to 
 where actions lie. In this connection there are some statu- 
 tory provisions which must be noted. 
 
 Sec. 582. statutory Provisions. — By the 5th section of an 
 act already more than once referred to (the 11 Geo. IV. and 1 
 Will. IV. c. 68) it is enacted that " any one or more of mail 
 contractors, stage-coach proprietors, or common carriers shall 
 be liable to be sued by his or her or their name or names 
 only, and no action or suit commenced to recover damages for 
 loss or injury of any parcel, package, or person, shall abate 
 for the want of joining any co-proprietor or co-partner in such 
 mail, stage-coach, or other public conveyance by land for 
 hire." 
 
 The 7th section provides that, " where any parcel or pack- 
 age which has been delivered, and, the value being declared, 
 the increased rate of charges paid, has been lost or damaged, 
 the party entitled to recover damages in respect of such loss 
 or damage shall also be entitled to recover back the increased 
 charges so paid in addition to the value." By the 9th section 
 it is provided that " carriers are not to be concluded by the 
 declared value, but are only to be liable to such damages as 
 are proved, not exceeding the declared value, together with 
 the increased charges." And section 10 provides that " money 
 may be paid into court in all actions for loss or injury." 
 
 SEC. 583. Notice of Action to Railway Companies. — We 
 have seen that in certain cases, railway companies are entitled 
 under Act of Parliament to notice of action before it is 
 brought, and, where that is the case, such notice is a neces- 
 sary preliminary to any legal proceedings ; it is therefore 
 necessary to consider this subject before proceeding to the 
 other questions to which it is proposed this chapter should 
 supply some answer. Thus the Great Western Railway Com- 
 pany were by their act entitled to notice of action before any 
 action should be brought against them for anything done or 
 omitted to be done in pursuance of their act. An action was 
 
ACTIONS AGAINST AND BY CARRIERS. 591 
 
 commenced against the company for money received by them 
 to the plaintiff's use and on account stated. The company 
 pleaded that no notice of action had been given, but failed to 
 allege that the money was received or the accounts stated in 
 pursuance of their act ; consequently their plea was held to be 
 bad, as the court could not presume, even after verdict, that 
 the receipt of money, or the stating of accounts, was a thing 
 done in pursuance of their act. 1 By 8 & 9 Vict. c. 20, § 138, 
 any notice, writ, or other proceeding at law or in equity, may 
 be served by being left at, or transmitted through, the post 
 directed to the principal office of the company, or one of their 
 principal offices, where there shall be more than one. It 
 appeared that a notice of action against the company for an 
 overcharge for the carriage of goods from Bristol to London 
 was served by the plaintiff upon the superintendent of the 
 Bristol Station; but this was held insufficient, inasmuch as 
 the secretary was in London, and the control of the railway 
 was carried on, and the ordinary meetings of the directors 
 were held there. 2 
 
 Sec. 584. Rule of Construction. — These cases indicate the 
 application of the rules of construction which our courts of law 
 will enforce in relation to these Acts of Parliament, and they 
 throw light upon it in a different connection and in a new 
 direction. These rules were, as we have seen, strictness of in- 
 terpretation, and, in case of doubt, a construction favorable to 
 the public and unfavorable to the company. 3 So, in a case 
 against the Great Western Bailway Company, which was an 
 action brought to recover sums extorted by the company in 
 excess of the charges which they were entitled to make by 
 their act, it was held that, in virtue of the provision mentioned 
 above, the company was entitled to notice of the action. 4 
 
 Again, where a railway company was entitled by Act of 
 Parliament to carry goods and passengers on the railway, 
 
 1 Gartone. GreatWestern Rail. Co., 8 See Smith v. Shaw, 10 B. & C 
 El. Bl. & El. 837 ; 5 Jur. n. s. 1244 ; 284, per Bayley, J. ; Graves v. Arnold, 
 23 L. J. Q. B. 321 Exch. Ch. 3 Camp. 242; Smith v. Hopper, 9 Q. 
 
 2 Garton ». Great Western Bail. Co., B. 1005. 
 
 4 Jur. n. s. 1036; 27 L. J. Q. B. 4 Kent w. Great "Western Bail. Co., 
 375. 3C. B. 714; 16 L. J. C. P. 72. 
 
592 THE LAW OP CARRIERS. 
 
 and to keep in repair the fences of the same, and the same act 
 contained a clause that no action should be brought against 
 the company for anything done or omitted to be done, in pur- 
 suance of the act, unless fourteen, days' previous notice of 
 action was given of such intention, and where the company, 
 having undertaken to carry some horses for the plaintiff, 
 failed to do so in consequence of an accident to the train, 
 caused by the fences by the railway having been broken down, 
 in which the horses were being conveyed, and by which they 
 were killed, it was held that the company, being sued in their 
 capacity of carriers, was not entitled to notice of action. 1 
 The distinction between this case and those already quoted is 
 fine, but easily appreciated. 
 
 Sec. 585. Remedy in Case of Loss, Damage, or Non-delivery 
 of Goods. — Enough has been said of the action which lies on 
 a breach of the carrier's duty to receive and carry ; and the 
 next subject which falls under our consideration is the duty 
 which the common law imposes on a common carrier of insur- 
 ing the safety of goods intrusted to him, and the action which 
 will lie against him in case of their loss or damage. 
 
 SEC. 586. The Form of Action in such a Case. — Arising ex 
 Contractu or ex Delicto. — In reference to this matter, some 
 difficulty existed in the minds of pleaders as to the proper 
 form of action in such a case. Considering the occupation of 
 carriers as a public duty, the breach of it would be a tort, for 
 which they were liable to an action on the case at common law. 
 But, as we have seen, the doctrine of the existence of a con- 
 tract in such a case came to be admitted, and carriers, therefore, 
 became liable to an action of assumpsit on their undertaking. 
 Thus it comes about that the case may be looked at either as 
 arising ex contractu or ex delicto, according as the neglect of 
 duty or breach of promise is to be relied upon as the cause 
 of injury. 2 
 
 1 Palmer v. Great Junction Rail, note, p. 177, per Denison, J., in Dale 
 
 Co., 4 M. & W. 749'; 7 D. P. C. 232 ; v. Hall, 1 Wils. 282 ; per Lokd Ken- 
 
 s. p. Carpue v. London and Brighton yon, in Buddie v. Wilson, 6 T. R. 
 
 Rail. Co., 5 Q. B. 747 j 13 L. J. Q. B. 373. See also Tattan v. Great West 
 
 138. era Railway, 2 El. & El. 844; Govett 
 
 a Coggs v. Barnard, 1 Sm. L. Ca. v. Radnidge, 3 East, 63 ; Ross v. 
 
ACTIONS AGAINST AND BY CARRIERS. 593 
 
 SBC. 587. Rule in Brotherton v. Wood and other Cases, — 
 One or two of the decisions in the under-noted cases which 
 bear upon the question of the form and nature of the action, 
 may be referred to as proving the truth of the above assertion. 
 In the case of Brotherton v. Wood, 1 it was decided that proof 
 of contract is not necessary to support an action against com- 
 mon carriers ; they may be sued in an action on the case for 
 an injury as arising ex delicto, and such an action, it was held, 
 is not necessarily to be considered quasi ex contractu, or 
 founded on contract. In the case of Pozzi v. Shipton 2 the 
 declaration stated that the plaintiff delivered to the defend- 
 ants, and they accepted, a package to be taken care of and 
 carried from L. to B., and there delivered to A., for reasonable 
 reward, and thereupon it became their duty to take due care 
 in the conveyance of the package. At the trial the jury found 
 a verdict for one of the defendants and against the other. It 
 was held that the declaration might be read as charging the 
 defendants in tort on the general custom of the realm and not 
 on contract, and the court was bound so to read it after ver- 
 dict, and to support the finding, though against one only. In 
 the more recent case of Tattan v. The Great Western Railway 
 Company, 3 which was an action against the company as a 
 common carrier, for the breach of his duty to carry safely 
 goods delivered to him as such to be carried for hire, whereby 
 the goods were lost, it was held that that was an action, not 
 of contract but of tort, in substance as well as in form, the 
 duty being imposed upon him by the custom of the realm, and 
 being distinct from and independent of his obligation under 
 the contract of carriage, in respect of which latter he may 
 also be sued in an action of contract : and it was consequently 
 held that a plaintiff in an action against a common carrier for 
 the breach of the duty in question, brought in a superior court 
 
 Johnson, 5 Burr. 2825 ; Dickon v. » 6 Moore, 141 ; 9 Price, 408 ; 3 
 
 Clifton, 2 Wils. 319 ; Powell v. Lay- B. & B. 54. 
 
 ton, 2 B. & P. 365 ; Brotherton v. 2 8 A. & E. 963 ; 1 W. W. & H. 
 
 Wood, 3 B. & B. 54; Pozzi v. Ship- 624. 
 
 ton, 8 A. & 1. 963 ; 1 P. & D. 4 ; 1 8 2 El. & El. 844 ; 6 Jur. N. s. 800; 
 
 W. W. & H. 624; Ansel i>. Water- 29 L. J. Q. B. 184; 8 W. R. 606. 
 
 house, 2 Chitt. 1. 
 
 38 
 
594 THE LAW OP CARRIERS. 
 
 to recover the sum of 201., is not deprived of his costs by 19 
 & 20 Vict. c. 108, § 30, if the defendant suffers judgment by 
 default, for that the action is not one of contract within that 
 section. 1 
 
 Sec. 588. Rule in Woodward v. Booth. — In the case of 
 Woodward v. Booth, 2 it was held that, in an action against a 
 carrier for a loss of a trunk, the terminus in quo is immaterial, 
 as the gist of the action is the non-delivery at the place it 
 ought to have gone to. 3 
 
 SEC. 589. Advantages of each Mode of Declaring. — In rela- 
 tion to this subject it may be well to note that each of these 
 modes of declaring has advantages and inconveniences inci- 
 dent to it, and it is the duty of a skilful practitioner to adopt 
 that mode in any individual case which may be best suited to 
 the requirements of the circumstances. Thus, as a general 
 rule, it is to be remembered that, where there is any doubt as 
 to the defendants, it is advisable, if it be possible, to declare 
 in tort rather than ex contractu, because the consequences of a 
 misjoinder, or non-joinder, of parties are less serious in the 
 former than in the latter. Thus, in the case of Brotherton v. 
 Wood, 4 there were too many defendants. This case was in 
 the Exchequer Chamber. At the trial, which was an action 
 on the case against ten defendants, as proprietors of a coach, 
 for injuries sustained by the plaintiff in consequence of negli- 
 gent driving, the jury found a verdict against eight of the de- 
 fendants, and in favor of the other two. Dallas, C. J., who 
 delivered the judgment of the court, said : " This action is on 
 the case against a common carrier, upon whom a duty is 
 imposed by the custom of the realm, in other words, by the 
 common law, to carry and convey their goods and passengers 
 
 1 See Legge v. Tucker, 1 H. & Mitchell v. Tarbutt, 5 T. R. 649 ; Bud- 
 N. 500 ; 2 Jur. n. s. 1235 ; 26 L. J. die v. Wilson, 6 T. R. 369 ; Govett v. 
 Excli. 71. Radnidge, 3 East, 62 ; Hambly v. 
 
 2 7 B. & C. 301. > See also Clark v. Trott, Cowp. 375 ; Powell v. Layton, 
 Richards, 1 Conn. 59 ; Orange Bank 5 B. & P. 365 ; Max v. Roberts, 12 
 v. Brown, 3 Wend. (N. Y.) 158. East, 89. 
 
 8 Tucker v. Cracklin, 2 Stark. 385. * 3 B. & B. 54; 6 Moore, 141; 9 
 See also Boson v. Sandford, 2 Show. Price, 408. 
 478; Dale v. Hall, 1 Wils. 281; 
 
ACTIONS AGAINST AND BY CARRIERS. 595 
 
 safely and securely, so that, by their negligence or default, no 
 injury or damage happen. A breach of this duty is a breach 
 of the law, and for this breach an action lies founded on the 
 common law, which action wants not the aid of a contract to 
 support it. It appears by the different books of entries 
 (Brownlow Redivivus, 11 ; Clift. 38, 39 ; Mod. Ent. 145) that 
 this form of action is a very ancient use. Nor is it material 
 whether redress might or might not have been had in an 
 action of assumpsit. That must depend on the circumstances, 
 of which this court has no knowledge ; but whether the action 
 of assumpsit might or might not have been maintained, still 
 this action on the case may be maintained. The action of 
 assumpsit, as applied to cases of this kind, is of modern use. 
 If the action be not founded on contract, but on a breach of 
 duty depending on the common law, on a tort or misfeasance, 
 it cannot be contended that the judgment is erroneous ; for, 
 from the nature of the case, and the form of the action, it is 
 several and not joint, and may be maintained against some 
 only of those against whom it is brought." 1 
 
 Sec. 590. Non-joinder of Partners. — It has been decided 
 that, if a carrier in partnership is sued singly in an action 
 arising ex delicto, he cannot plead the non-joinder of others in 
 abatement or in bar, or give it in evidence under the general 
 issue ; for a plea in abatement can only be adopted in those 
 cases where regularly all the parties must be joined, and not 
 where the plaintiff may join them or not at his election. 2 
 Therefore, to an action on the case against the defendants, 
 part-owners of a ship, for the negligence of their servants in 
 running down a ship laden with sugar belonging to the 
 plaintiff, whereby the sugar was lost, the defendants, it was 
 decided, could not plead in abatement that there were other 
 part-owners not joined in the suit, because the action being ex 
 delicto the trespass was several. 3 There is another advantage 
 gained by declaring in tort, where the plaintiff has an option 
 
 1 Allen v. Sewall, 2 Wend. (N. Y.) 2 Child v. Sands, Carth. 294, quoted 
 338 ; "Weed v. Schenectady R. R. Co., in Gow on Part. p. 201. 
 19 Wend. (N. Y.) 534; Tell v. Arnold, * Mitchell v. Tarbutt, 5 T. R. 649. 
 2 Penn. 292 ; Cook v. Chaplain Trans. 
 Co., 1 Den. (N. Y.) 91. 
 
596 THE LAW OP CARRIERS. 
 
 which form of action he will choose, and that is, that when 
 that is done, it is not necessary to state the undertaking with 
 as much form as is requisite in an action of assumpsit. 1 
 
 SEC. 591. Count in Trover may be joined in Action on 
 Case. — Where this can be done. — Another incident of the 
 action on the case makes it, under many circumstances, more 
 convenient than an action founded on contract, and that is, 
 that where an action is brought against a common carrier for 
 breach of duty, a count in trover v may be joined with the other 
 counts. " I own," said Wilmot, C. J., in the case of Dickon 
 v. Clifton, 2 " that, in many books, it is reported that trover 
 and a count against a common carrier cannot be joined, but 
 common experience and practice is now to the contrary. The 
 true test to try whether two counts can be joined in the same 
 declaration is, to consider and see whether there is the same 
 judgment in both, and not whether they both require the 
 same plea ; and wherever there is the same judgment in both, 
 I think they may well be joined." 3 But it is to be borne in 
 mind that a count in trover is to be maintained on only in the 
 case of "misfeasance, as it implies a conversion, 4 by the defend- 
 ant, of the goods of the plaintiff. Lord Mansfield described 
 this action as being in form a fiction, in substance a remedy to 
 recover the value of personal chattels wrongfully converted 
 by another to his own use. 5 Two things are necessary to be 
 proved to entitle the plaintiff to recover in this kind of 
 action, — 1st. Property in the plaintiff, and 2d. A wrongful 
 conversion by the defendant. 6 
 
 J Per Parke, B., in Wyld v. Pick- Co., 2 E. &B. 822; Simmons v. Lilly- 
 ford, 8 M. & W. 443. See also Govett white, 8 Exch. 431 ; Glover v. London 
 v. Radnidge, 3 East, 62; Morrow v. and North- Western Rail. Co., 5 Exch. 
 Belcher, 4 B. & C. 704. 60; Powell v. Holyland, 6 Exch. 67; 
 
 2 2 Wils. 319. Mayhew v. Herrick, 7 C. B. 229. See 
 
 8 M'Cahani). Hirst, 7 "Watts (Penn.), also Buckland v. Johnson, 15 C. B. 
 
 175 ; Dwight v. Brewster, 1 Pick. 145 ; Meyerstein v. Barber, L. R. 2 
 
 (Mass.) 50 ; Emery v. Panning, 9 C. P. 38, 661 ; Towne v. Lewis, 7 C. 
 
 Barb. (N. Y.) 176 ; Packard v. Ed- B. 600. 
 
 man, 4 Wend. (N. Y.) 613; Moses v. 6 Cooper v. Chitty, 1 Burr. 31. 
 
 Norris, 4 N. H. 304. 6 See Jefferies v. Great Western 
 
 4 See Burronghes v. Bayne, 5 H. & Rail. Co., 5 E. & B. 802 ; Walker v. 
 
 N. 296, 301 ; Chinnery v. Veale, 8 H. Clyde, 10 C. B. jr. s. 381. 
 & N. 288 ; Giles v, Taff Yale Rail. 
 
ACTIONS AGAINST AND BY CARRIERS. 597 
 
 Sec. 592. Conversion, what it is. — " The very assuming," 
 says Lord Holt, " to one's self the right to dispose of another 
 man's goods is a conversion." x So, where a carrier drew out 
 a part of a vessel, and filled it up with water, it was held to 
 be a conversion of all the liquor. 2 The delivery of the goods, 
 either by the carrier or by his servant, to a wrong person, will 
 support a count in trover, even although it be proved that the 
 misdelivery occurred by mistake, 3 and even although the mis- 
 delivery has been brought about, riot by the carelessness of the 
 carrier, but by the deceit of the person receiving the goods. 4 
 In a recent case it was decided that a carrier must commit 
 some fault or wrongful act with respect to the goods in order 
 to render himself liable for an action for wrongful conversion ; 
 and where he strictly pursues the directions of the consignors, 
 the mere fact of delivering the goods to a person who was not 
 intended by the consignors to get possession of them does not 
 amount to such conduct, on the carrier's part, as renders him 
 responsible for misdelivery and conversion. 5 Where the facts 
 are such as have been indicated by the above cases, it is clear 
 that conversion has taken place, but a difficulty might arise as 
 to whether the simple non-delivery of the goods would consti- 
 tute such a conversion as would support a count in trover, or, 
 indeed, whether it could be regarded as a conversion at all. 
 A mere neglect to deliver would not then be a conversion ; but 
 if the goods have been demanded by the consignee or owner, 
 
 1 Baldwin v. Cole, 6 Mod. 212. See R. R. Co., 7 Allen (Mass.), 341 ; Aldea 
 M'Oombie v. Davies, 6 East, 538; v. Pearson, 3 Gray (Mass.), 342; Bow- 
 Cooper v. Willomatt, 1 C. B. 672. Of lin v. Nye, 64 Mass. 419 ; Robinson v. 
 course simple failure to deliver goods Amos Austin, 68 Mass. 564 ; Hoffman 
 will render the carrier liable, and is v. Carow, 22 "Wend. (N. Y.) 284; 
 to be regarded as a conversion. See Schroeppell v. Corning, 5 Den. (N.Y.) 
 Jeffersonville R. R. Co. v. White, 6 240 ; Koch v. Branch, 44 Mo. 542 ; 
 Bush (Ky.), 251. Delaware Bank v. Smith, 1 Edm. 
 
 2 Richardson v. Atkinson, 1 Stra. (N. Y.) Sel. Cas. 351. 
 
 576. ' * Per Parke, B., in Wyld v. Piok- 
 
 8 Devereux v. Barclay, 3 B. & Aid. ford, 8 M. & W. 443 • Youl v. Har- 
 
 702; Hawkins v. Hoffman, 6 Hill bottle, Peake, N. P. Cas. 49 ; Lubbock 
 
 (N. Y.), 588 ; Clark v. Spruce, 10 v. Inglis, 1 Stark. 104. 
 Watts (Penn.), 335 ; Wfflard v. Bridge, * Per Martin, B., in M'Kean v. 
 
 4 Barb. (N. Y.) 361 ; Scovill v. Grif- M'lver, 24 L. T. N. s. 559 ; 6 L. R 
 
 flth, 14 N. Y. 509 ; Caflin v. Boston Exch. 36. 
 
598 THE LAW OP CARRIERS. 
 
 and the carrier still neglects or refuses to deliver them, these 
 facts will be held ample evidence of conversion. 1 Still, al- 
 though these circumstances are evidence of conversion, they 
 are liable to be rebutted by evidence that the goods have 
 passed out of the carrier's keeping by negligence, or have 
 been stolen. 2 Therefore a count in trover would not be sup- 
 ported in such a case. On this subject Lord Ellenborough 
 remarked, " that what begins in contract, a non-performance 
 of what the party undertakes to do, or a bare non-delivery of 
 what he undertook to deliver, is not to be considered as of 
 itself amounting to a tortious conversion. The principle was 
 recognized some time ago in the King's Bench, in an action 
 against a carrier for not delivering goods. If the carrier says 
 he has the goods in his warehouse, and refuses to deliver 
 them, that will be evidence of conversion, and trover may be 
 maintained, but not for a bare non-delivery without any such 
 refusal." 3 
 
 Sec. 593. Assumpsit. — The action of assumpsit is founded 
 on a promise express or implied, or upon a contract or agree- 
 ment not under seal. 4 We have seen that the very nature of 
 a carrier's employment is the undertaking of a trust and 
 duty, and consequently in the contemplation of law the impli- 
 cation of a promfse upon his part to perform the various 
 duties incident to the nature of the bailment with integrity, 
 diligence, and skill. The reasons for this have already been 
 considered. But if he should fail to perform the contract 
 
 1 It has been decided in this country v. Young, 3 Stew. (Ala.) 46; Packard 
 
 that a consignee of goods, who is ready v. Getman, 6 Cow. (N. Y.) 747 ; John- 
 
 to pay freight on having the goods de- son v. Strader, 3 Mo. 359. 
 livered to him, may maintain trover 2 Anon. 2 Salk. 655 ; Owen v. 
 
 against the carriers or their agents, Lewyn, 1 Vent. 223. 
 •who, having no legal claim on the 8 Anon. 4 Esp. 157 ; and see Atter- 
 
 goods for anything besides freight, re- sol v. Bryant, 1 Camp. 409 ; and opin- 
 
 fuse to deliver them unless a further ion of Lokd Kenyon in Youl v' Har- 
 
 sum be paid. The consignee, in such bottle, Peake, N. P. Cas. 49 ; Bromley 
 
 a case, is not bound to make any ten- v. Coxwell, 2 B. & P. 438 ; Rose v. 
 
 der to those in possession of the goods, Johnson, 5 Burr. 2825. 
 and their refusal to deliver the goods 4 See, as to the nature of this action, 
 
 is evidence of conversion. Adams v. Slade's Case, 4 Rep. 94. See also 
 
 Clark, 7 Cush. (Mass.) 215 ; Bullard Chitt. PL, 7th ed., vol. i. pp. Ill, 122. 
 
ACTIONS AGAINST AND BY CARRIERS. 599 
 
 which he has by implication entered into, if in any of these 
 three particulars of integrity, diligence, or skill, he should 
 fall short of the requirements which the common sense, 
 . guided by the ordinary experience of mankind, makes neces- 
 sary, the party who suffers loss of or injury to his goods by 
 reason of such dishonesty or negligence may, in most cases, 
 have his remedy for such breach of contract by action of 
 assumpsit, as well as by action on the case. This doctrine is 
 not peculiar to the law of carriers. Thus gross and culpable 
 negligence upon the part of an attorney causing injury to the 
 interests of his client exposes him to an action of assumpsit, 
 or upon the case, at the instance of his client. For all the 
 purposes of an action the implied contract is as good as an 
 express promise, and in the declaration the promise is stated 
 exactly as the law implies it. 1 At the same time the implica- 
 tion must be obvious, and any express promise different from 
 ' that which is implied, which has a consideration to support it, 
 may be stated in the declaration. 
 
 Sec. 594. Advantages of adopting Action of Assumpsit. — 
 As we considered the various advantages to be derived from 
 the adoption of the action on the case, it is expedient to state 
 some of the countervailing advantages which attach to the 
 action of assumpsit. By adopting it the plaintiff has the ad- 
 vantage of joining the common money counts, if he has other 
 causes of action to which they are applicable. Again the 
 action of assumpsit survives against the defendant's executor 
 while the action on the case against a common carrier will not 
 be against his executor or administrator, as it is in tort. 2 
 These advantages, however, have to be set against the dis- 
 advantages indirectly alluded to while speaking of the action 
 on the case. Thus the plaintiff is bound to sue all the parties 
 jointly liable, and must prove that all the defendants in the 
 action are liable, and he is precluded from joining a count 
 in trover, because counts upon promise and upon tort cannot 
 be joined. 3 At the same time assumpsit is sometimes main- 
 
 1 See Appendix. 8 See Corbett v. Paekington, 6 B. 
 
 2 Chitt. PI., 7th ed., p. 116 ; per & C. 268 ; 1 Chitt. PI., 7th ed., p. 
 Lobd Mansfield in Harnbly v. Trott, 156. 
 
 Cowp. 375. 
 
600 THE LAW OP CARRIERS. 
 
 tainable where trover will not lie. This is the case if a car- 
 rier, instead of conveying the parcel according to his directions, 
 transfers it to another carrier for that purpose, whereby the 
 parcel is lost. 1 
 
 Sec. 595. Who may sue. — Another matter in some sense 
 preliminary to the action and preliminary to the pleadings 
 remains for consideration, and that has reference to the parties 
 to an action or the parties to sue and be sued. Of the former, 
 first. It is evident that there are two parties interested in the 
 safe custody of the goods by the carrier. The very fact that 
 there exists in the consignor the right of stoppage in transitu 
 for the unpaid price, proves that he has an interest in their 
 safe custody ; and as the goods are to be delivered to the con- 
 signee, who may be the vendee or who is at least in some way 
 interested in them, there might seem to be a difficulty as to 
 whether it was in the consignor or consignee to maintain the 
 action in case of the loss or damage of the goods while they 
 were in the custody of the carrier. The carrier must be liable 
 to one party or the other; and if the wrong party were to 
 recover against him, he would be liable to be harassed again. 2 
 Hence the importance of coming to some definite understand- 
 ing as to the rights of each ; for it has been held that where 
 the property in goods has passed to a consignee it is no de- 
 fence to an action by him against the carrier for the loss that 
 the consignor has claimed, and that the carrier has bond fide 
 paid him the amount of the loss. 3 
 
 Sec. 596. Vendee or Consignee generally Proper Person to 
 sue. — The introduction of the principle or doctrine that de- 
 livery of the goods to the carrier vests the ownership primd 
 facie in the consignee, makes the carrier presumptively the 
 agent of the consignee, 4 and therefore, in an action against a 
 
 1 Sleat v. Pagg, 5 B. & Aid. 349. See Smith's Mercantile Law, p. 291 ; 
 
 * Per Williams, J., in Coats v. Richardson v. Dunn, 2 Q. B. 224; 
 
 Chaplain, 3 Q. B. 489. Vale v. Bayle, Cowp. 294; Godfrey 
 
 8 Coombs v. Bristol & Exeter Bail. v. Purzo, 3 P. Wms. 186 ; Joseph o. 
 
 Co., 3 H. & N. 1 ; 27 L. J. Exch. 269 ; Knox, 3 Camp. 320 ; Brown v. Hodg- 
 
 W. & A. Railroad v. Kelly, 1 Head son, 2 Camp. 36 ; King v. Meredith, 
 
 (Tenn.), 158. 2 Camp. 639 ; Griffin v. Langfield, 3 
 
 4 Dawes v. Peck, 8 L. R. 330; Dut- Camp. 254; Pragano v. Long, 4 D. 
 
 ton v. Solomonson, 3 B. & P. 582. & R. 283. 
 
ACTIONS AGAINST AND BY CARRIERS. 601 
 
 carrier for such loss or damage, the vendee or consignee is 
 generally the proper plaintiff. 
 
 Sec. 597. Consignor may sue. — Although the statement 
 that the delivery of goods to a carrier generally vests the 
 ownership of the goods in the consignee is true, it is not 
 necessarily so. This principle was discussed in a case in the 
 House of Lords, 1 in which the Lord Chancellor said : " It is no 
 doubt true, as a general rule, that the delivery by the con- 
 signor to the carrier is a delivery to the consignee, and that 
 the risk is after such delivery the risk of the consignee. That 
 is so if, without designating the particular carrier, the con- 
 signee directs that the goods shall be sent by the ordinary 
 conveyance ; the delivery to the ordinary carrier is then a de- 
 livery to the consignee, and the consignee incurs all risk of 
 the carriage. And it is still more strongly so if the goods are 
 sent by a carrier, specially pointed out by the consignee him- 
 self; for such carrier then becomes his special agent. But 
 though the authorities all establish the general inference, as I 
 have stated, yet that general inference is capable of being 
 varied by the circumstances of any special arrangement be- 
 tween the parties, or of any particular mode of dealing between 
 them. If a particular contract be proved between the con 
 signor and the consignee, — and the circumstance of the pay 
 ment of freight and insurance is not alone conclusive evidence 
 of ownership, — as where the party undertaking to consign 
 undertakes to deliver at a particular place, the property, till 
 it reaches that place and is delivered according to the terms 
 of the contract, is at the risk of the consignor. And again, 
 though in general the following the directions of the consignee 
 and the delivering the goods to a particular carrier will relieve 
 the consignor from the risk, he may make such a special con- 
 tract that, though delivering the goods to the carrier specially 
 intimated by the consignee, the risk may remain with him, 
 and the consignor may by a contract with the carrier make 
 the carrier liable to himself. In an infinite variety of circum- 
 stances the ordinary rule may turn out not to be that which 
 regulates the liabilities of the parties." In the light of this case, 
 
 1 Dunlop v. Lambert, 6 CI. & F. 600. 
 
602 THE LAW OP CARRIERS. 
 
 then, where the consignor has specially contracted with the 
 carrier or otherwise retains the ownership of the goods, he 
 will be the proper plaintiff. And in case it is doubtful whether 
 goods were delivered to the carrier at the risk of the consignor 
 or at the risk of the consignee, the question is one which must 
 be left to the jury. 1 
 
 SEC. 598. The Principle involved. — This principle is in 
 conformity with the general rule of law in respect to all ques- 
 tions, and that is that the action should be brought in the 
 name of the person whose legal right has been affected. Now 
 the question as to whether the consignor or the consignee is to 
 take the risk is the question which is calculated to decide the 
 point as to who is in fact the proprietor of the goods which 
 are bailed to the carrier. 2 It is a very patent fact that under 
 all circumstances it is the party who is injured in his rights 
 who has most need of the remedy, and who is most likely to 
 put it in force directly for his own advantage, and indirectly 
 for the advantage of his neighbors. For every man that goes 
 to law is to some extent practically philanthropic. 
 
 Sec. 599. General Rule. — It follows then, from what has 
 been said, that, as a general rule, a mere servant or agent with 
 whom a contract is made on behalf of another, and who has 
 no direct beneficial interest in the transaction, cannot support 
 an action thereon; 8 if, however, the agent or servant have 
 a beneficial interest in the performance of the contract, or a 
 special property or interest in the subject-matter of the agree- 
 ment, he is entitled to support an action in his own name 
 upon the contract. 
 
 1 Dunlop v. Lambert, 6 CI. & P. 19 N. H. 122; Elkins v. Boston & 
 600 ; 1 Sm. L. Ca. 103 b. See Maine R. R. Co., 19 N. H. 337. 
 also Davis v. James, 5 Burr. 2689 ; 2 Goods may be sent to consignee, 
 Moore v. Wilson, 1 T. B. 659 ; Hun- on approval, when of course the prop- 
 ter v. Westbrook, 2 C. & P. 578. erty is still in the consignor. Swain 
 These were eases in which there was v. Shepherd, 1 M. & Rob. 224. See 
 an express agreement between con- also Stevenson v. Hart, 4 Bing. 476 ; 
 signor and carrier, by which the latter 1 M. & P. 357 ; Duff v. Budd, 3 B. & 
 agreed to be responsible to the former B. 177 ; Norman v. Phillips, 14 M. & 
 for goods on consideration of the former W. 277. 
 
 guaranteeing the latter his hire. See 8 Sargent v. Morris, 3 B. & A. 
 
 Mayall v. Boston & Maine R. R. Co., 277. 
 
ACTIONS AGAINST AND BY CAEBIERS. 603 
 
 SBC. 600. Factor, Carrier, &o, may maintain an Action for 
 Goods intrusted to them. — Thus, a factor, a broker, a ware- 
 houseman, a carrier, and a captain of a ship 1 are sufficiently 
 interested in goods which do not belong to them to maintain 
 an action for goods which have been intrusted to them ; or, in 
 the case of a captain of a ship, to maintain an action for 
 freight. In the case of Freeman v. Birch, 2 which was an ac- 
 tion on the case against a carrier for negligence, it appeared 
 at the trial that the plaintiff, a laundress at Hammersmith, 
 was in the habit of sending linen to and from London by the 
 defendant's cart, which travelled from Chiswick to London ; 
 it further appeared that on one occasion a basket of linen belong- 
 ing to a person of the name of Spinks was sent by the defend- 
 ant's cart, and on its way to London part of the contents were 
 either lost or stolen. Spinks did not pay the carriage of the 
 linen, and it was objected upon the part of the defendant that 
 the present action was misconceived, and that the action 
 ought to have been brought by the owner of the linen. The 
 learned judge, Paterson, J., overruled the objection, and a 
 verdict was found for the plaintiff. Subsequently a motion 
 was made for a new trial, on the ground of misdirection, 
 which the Court of Queen's Bench refused, on the ground that 
 under the circumstances the bailee must be taken to retain a 
 special property in the goods sufficient to support the action. 
 
 SEC. 601. Rule in Metcalfe v. London, &c. Railway Co. — In 
 the case of Metcalfe v. The London, Brighton, and South Coast 
 Railway Company, 3 the facts that appeared in evidence were 
 as follows : The plaintiffs were brothers, and were both acting 
 as agents of a Mr. Hollingham, of Worthing, in the sale of an 
 article used for agricultural purposes, called English guano. 
 They both lodged in Mr. Hollingham's house in Augusta Place, 
 
 1 Shields v. Davis, 6 Taunt. 65 ; and see 12 N. Y. 243 ; Everett v. Sal- 
 Brown v. Hodgson, 4 Taunt. 189. See tus, 15 Wend. (N. Y.) 474; Law v. 
 also Joseph v. Knox, 3 Camp. 320; Hatcher, 4 Blatchf. (TJ. S. C. C.) 364. 
 White v. Bascom, 28 Vt. 268. See also Moran v. Portland S. P. Co., 
 
 2 2Q. B. 492; 1 Nev. & M. 420; 35 Me. 55. 
 
 Nichols v. Bastard, 2 Cro. M. & R. ; a 4 C. B. n. s. 318 ; 4 Jur. n. s. 
 Sims v. Bond, 5 B. & Ad. 389 ; Steam- 487 ; 27 L.' J. C. P. 333. 
 boat Parmer v. M'Craw, 26 Ala. 189 ; 
 
604 THE LAW OP CARRIERS. 
 
 Worthing. On a certain day they left that place for the pur- 
 pose of proceeding to London by the 2.40 P. M. train, accom- 
 panied by a man named Oliver, a servant of Mr. Hollingham, 
 who carried their carpet-bags. On their arrival at the station 
 it was discovered that a deal box which they had intended to 
 take to London with them had been left behind, and accord- 
 ingly they sent Oliver back to Augusta Place for it, with in- 
 structions to forward it to "The Queen's Head Inn," Borough, 
 by the next train. On his return to Augusta Place, Oliver 
 received the box from Mr. Hollingham with a direction on it 
 to " J. T. Metcalfe, ' Queen's Head,' Borough," and delivered 
 it to the porter at the station at Worthing, in time for the 
 4.20 train. The box when delivered by Oliver was se- 
 cured by a padlock, and had in it, amongst other things, the 
 articles enumerated in the declaration enclosed in the box, 
 some of the articles being the property of each of the brothers. 
 On the morning of the following day the box was delivered at 
 the " Queen's Head " by a porter belonging to the company, 
 to whom a receipt was given for it by John Thomas Metcalfe, 
 who paid for the carriage. The box was immediately carried 
 upstairs to a bedroom, and opened by George Metcalfe, when 
 it was found that the box had been opened and its contents 
 had been abstracted. For the defence it was submitted that 
 there was no evidence of a joint bailment by the plaintiffs 
 who brought the action, but the court, held that there was ; 
 Cockburn, C. J., remarking : " I think there was abundant 
 evidence of a joint contract. The box appears to have con- 
 tained property belonging separately to each of the plaintiffs, 
 but none in which they had a joint ownership. The question 
 is whether there was a delivery to the company to be carried 
 on behalf of the two jointly. I am of opinion that there was. 
 The delivery was not by the hand of either of the plaintiffs, but 
 by a third person with whom the company contracted, as with 
 the agent of an unknown principal. Having so contracted 
 with him, it turns out that he was agent, not for one of the 
 plaintiffs only, but for both. If so, the contract was with the 
 two jointly." And Willes, J., said : " It is certainly a very 
 straDge question for the company to raise, inasmuch as the 
 
ACTIONS AGAINST AND BY CARRIERS. 605 
 
 only effect of holding the contract to have been with each sep- 
 arately would be that the company must be harassed by two 
 actions, when the whole merits might be disposed of in one. 
 The remedy would be by striking out the name of George 
 Metcalfe, to whom the box was not addressed, and who did 
 not pay the carriage of it, pursuant to the leave reserved at 
 the trial. But it appears to me that the point is disposed of 
 by saying that there was some evidence that the box, with its 
 contents, was delivered to the company upon a joint contract, 
 to be carried for the two plaintiffs, because it was delivered 
 by a person who might reasonably be considered to have been 
 at the time the servant of both." 
 
 SBC. 602. When Reward to be paid by Plaintiff need not be 
 stated. — Another case of some importance in this connection, 
 and also illustrating the importance of choosing rightly the 
 form in which the action is to be brought, may be shortly 
 referred to in this place. In that case a person of the name 
 of Marshall was the plaintiff, and the York, Newcastle, and 
 Berwick Railway Company were the defendants. The declara- 
 tion in case against the company for the loss of a passenger's 
 luggage stated that the defendants received the passenger, to 
 be safely carried, together with his. luggage, "for reward to 
 the defendants in that behalf ; " it then alleged that it was the 
 defendants' duty safely and securely to carry the plaintiff and 
 his luggage, and averred a breach of that duty, whereby the 
 luggage was lost. It was held that, the action being founded 
 on the breach of duty and not on contract, it was not neces- 
 sary to allege or to prove that the reward was to be paid by 
 the plaintiff, but that the plaintiff was entitled to recover, 
 although it appeared that the fare had been paid by the plain- 
 tiff's master, with whom he was travelling at the time. 1 In 
 case of negligence of servants, it has been held that one of 
 two joint proprietors, who has been sued separately, may re- 
 cover contribution against his co-proprietor, if the former was 
 not present when the accident occurred ; 2 but no action can 
 be maintained by the personal representatiye of a person 
 
 1 Marshall v. York, Newcastle, & 2 Woolley v. Batte, 2 Car. & P. 
 Berwick Rail. Co., 11 C. B. 655 ; 12 417. 
 Jur. 124; 21 L. J. C. P. 34 
 
606 THE LAW OP CARRIERS. 
 
 killed by accident, if such person contributed to such accident 
 by his own negligence. 1 These cases indicate the relationship 
 which must exist between the party injured or damnified and 
 the carrier, as well as the relationship which must exist be- 
 tween a person complaining of an injury and the goods dam- 
 aged, in order to support an action. It has been held that an 
 individual to whom goods are sent for inspection has not 
 thereby acquired such an interest in them as to maintain an 
 action upon account of damage done to them. 2 So that be- 
 tween these positive and negative cases there can be little 
 doubt of the accuracy of the rule stated above. 
 
 Sec. 603. Who can sue. — Master may sue for Injury to Ser- 
 vant when. — Another case bearing upon this subject, which 
 exemplified the doctrine that one who is no party to a contract 
 cannot sue in respect of the breach of duty arising out of the 
 contract, is not unworthy of attention. This was an action 
 brought against a railway company by two brewers for the 
 loss of services of a traveller in their employ through the 
 defendants' negligence. The declaration was to the effect 
 that one Charles Thomas Baxter was, before and at the time 
 of the accident, complained of in the employment of the plain- 
 tiffs; that the defendants were • carriers of passengers upon 
 the Midland Railway from Trent to Nottingham for hire ; 
 that the said Baxter became a passenger by the defendants' 
 railway, to be then safely and securely carried from the former 
 to the latter of the above-mentioned places ; that thereupon it 
 became and was the duty of the defendants to use due and 
 proper care and diligence in and about the carriage and con- 
 veyance of the said C. T. Baxter ; yet the defendants did not 
 safely and securely carry the said C. T. Baxter, and did not 
 use due and proper care and diligence in and about the car- 
 riage and conveyance of the said C. T. Baxter, and by their 
 servants so negligently, unskilfully, carelessly, and improperly 
 behaved and conducted themselves in that behalf, that the said 
 C. T. Baxter was thereby, and by reason of the negligence, 
 carelessness, unskilfulness, and improper conduct of the de- 
 fendants and their servants, wounded and injured, and became 
 
 1 Tucker i>. Chaplin, 2 C.&K. 730; 2 Swain v. Shepherd, 1 M. & R. 
 cf. Simon v. Ward, 28 L. J. Q. B. 139. 224. 
 
ACTIONS AGAINST AND BY CARRIERS. 607 
 
 and was sick and disabled, and unable to attend to the neces- 
 sary business of the plaintiffs, about which he was employed 
 at the time of the injuries complained of, and so remained for 
 nineteen weeks, during which time the plaintiffs lost the ser- 
 vices of the said 0. T. Baxter in their business, and that the 
 said business thereby suffered injury, and the plaintiffs were, 
 by reason of the premises, and of the wrongful and improper 
 conduct of the defendants, otherwise injured and damnified. 
 To this declaration the defendants pleaded that they con- 
 tracted with the said C. T. Baxter to carry him as such pas- 
 senger, as in the declaration mentioned, on the said journey ; 
 and that they received him, as in the declaration mentioned, 
 under and by virtue of that contract, and they did not contract 
 with the plaintiffs to carry the said C. T. Baxter ; and that 
 the matter complained of in the declaration was not a breach of 
 any contract between the defendants and the plaintiffs, but was 
 a breach of the said contract between the defendants and the 
 said C. T. Baxter. The defendants also demurred to the dec- 
 laration, the ground of demurrer stated in the margin being, 
 " that the defendants are not liable to third persons for breach 
 of the contract between their passengers and themselves." In 
 giving his judgment, Erlb, C. J., said : " The demurrer to the 
 plea admits that the relation between the defendants and Baxter 
 was created by contract. The plaintiffs, therefore, are seek- 
 ing to recover consequential damages by reason of the breach 
 of a contract between the defendants and a third person. I 
 take the law to be clear, that where a servant is injured by 
 matter ex delicto, and his master in consequence loses the 
 benefit of his services, the master may have an action against 
 the wrong-doer for that consequential damage. The distinc- 
 tion upon which I rely is, that in all the cases where the 
 master has recovered damages in such an action, the injury 
 has been occasioned to the servant by the tortious act of the 
 defendant. I find none where the damage has arisen by 
 means of a breach of a contract. I do not go into the origin 
 of the master's right to sue for the wrong done to his ser- 
 vant, or inquire whether, as Mr. Smith puts it, 1 it may have 
 
 1 Master and Servant, p. 86. 
 
608' THE LAW OP CAEEIEES. 
 
 originated at a time when the master claimed a property in 
 the services of his servant. I take the law as I find it ; and 
 I find no case where an action has been sustained by the 
 master for consequential damages for an injury done to his 
 servant, when the injury arose from the breach of a contract 
 between the servant and the defendant. Hall v. Hollander, 1 
 Martinez v. Gerber, 2 and Gough v. Brian, 3 were all cases of 
 direct wrong done to the servant. Upon that general view I 
 found my opinion that for the consequential damages on the 
 present occasion the plaintiffs cannot sue." i 
 
 Sec. 604. Principal and Agent. — One important legal doc- 
 trine must not be overlooked in connection with this branch 
 of our subject, and that is, that if it is not expressed that an 
 agent contracts in behalf of another, and the name of the 
 principal is not disclosed by him, a suit may be maintained in 
 the name of the principal. Thus, in the case of Sims v. Bond, 5 
 Loed Denman, in delivering the judgment of the court, said : 
 " It is a well-established rule of law that where a contract, not 
 under seal, is made with an agent, in his own name, for an 
 undisclosed principal, either the agent or the principal may 
 sue upon it, the defendant, in the latter case, being entitled to 
 be placed in the same situation, at the time of the disclosure 
 of the real principal, as if the agent had been the contracting 
 party. This rule is most frequently acted upon in sales by 
 factors' agents or partners, in which cases either the nominal 
 or real contractor may sue, but it may be equally applied to 
 other cases, and we do not say that where a person lends 
 money nominally on his own account, but really on account of 
 and as a loan of another, the real lender may not sue for the 
 money." 6 A case is mentioned by Angell, 7 in which this doc- 
 
 1 4 B. & C. 660; 7 D. & R. 133. 12 Wend. (N. Y.) 413; Tainton v. 
 
 2 3 M. & G. 88; 3 Scott, N. R. Prendergast, 3 Hill (N. Y.), 72; El- 
 386. kins v. Boston, &c. R R. Co., 19 N. H. 
 
 8 2 M. & W. 770. 337; Sanderson t>. Lamberton, 6 Binn. 
 
 4 Alton v. Midland Rail. Co., 19 C. (Penn.) 129; Lapham v. Green, 9 Vt. 
 
 B. n. s. 213; 11 Jur. n.s. 672; 34 L. 407; Davis v. M'Kinney, 6 Coldw. 
 
 J. C. P. 292. (Tenn.) 15. Compare Fulver v. Burke, 
 
 6 6 B. & Ad. 389. 56 Barb. (N. T.) 390. 
 
 8 See also Higgins v. Senior, 8 M. 'On Carriers, § 494, 4th ed. 
 & W. 834. See also Beebe v. Robert, 
 
ACTIONS AGAINST AND BY CARRIERS. 609 
 
 trine was acknowledged and applied in the case of a common 
 carrier. It occurred in Pennsylvania. 1 "It was also," he 
 says, " recently applied by the Supreme Court of the United 
 States in an important case on appeal in the Admiralty, in 
 which the respondents were common carriers by sea. The 
 case referred to originated in the loss of the steamboat ' Lex- 
 ington,' with the cargo on board, by fire, in Long Island 
 Sound, in the month of January, 1840, but the decision was 
 not made until the December term of that court, 1847. The 
 property in question (a large amount of specie^) was delivered 
 to one H., an ' express ' forwarder, for transportation, and by 
 him delivered for that purpose to the New Jersey Steam Navi- 
 gation Company, who, with other steamboats, ran the ' Lex- 
 ington' to and from New York and Stonington. It was held 
 that, notwithstanding the contract of affreightment was made 
 hy H. with the company personally, and without disclosing 
 the name of the libellants, who were the owners of the specie 
 lost, the suit by them against the company sliould be sus- 
 tained." 2 
 
 Sec. 605. statute of Frauds. — Again, where the case is 
 within the Statute of Frauds, it is of importance, in determin- 
 ing the question of ownership, with a view of ascertaining who 
 may properly sue a carrier for the loss or injury of goods in- 
 trusted to him, to discover whether, according to the require- 
 ments of that statute, the contract of sale is complete. Thus, 
 where A.'s traveller ordered goods from the plaintiff above the 
 value of 101. for A. ; nothing was said as to the mode of trans- 
 mitting them to A., and no contract was signed, but the plain- 
 tiff transmitted the invoice to the person for whom the goods 
 were purchased : it was held that there was no acceptance of 
 the goods by A., no complete contract with A., and therefore, 
 that the plaintiff, as consignor, was the person to sue for the 
 loss on the transit. 3 
 
 1 Sanderson v. Lamberton, 6 Binn. 8 Coats ». Chaplin, 3 Q. B. 483 ; of. 
 
 (Penn.) 129. Frango v. Long, 4 B. & C. 219. See 
 
 J New Jersey Steam Nav. Co. v. also Duff v. Budd, 6 Moore, 469 ; and 
 
 Merchants' Bank, 6 How. (U. S.) 344. Stevenson v. Hart, 4 Bing. 476. 
 
 39 
 
610 THE LAW OP CARRIERS. 
 
 SEC. 606. General Rule. — Incomplete Contract. — We have 
 seen that, as a general rule, the following the directions of the 
 consignee, and the delivery of the goods to a particular car- 
 rier named by him, will relieve the consignor from risk, yet, 
 if the contract is incomplete within the Statute of Frauds, the 
 vendor is the proper person to sue in case of the loss of the 
 goods ; and it further appears that, in order to render such a 
 contract complete by constructive acceptance, it is necessary 
 that the consignee should have an opportunity of examining 
 and rejecting the goods before acceptance. Thus, in Coombs 
 v. The Bristol and Exeter Railway Company, 1 it appeared that 
 the plaintiff, an umbrella-maker at Bristol, bought of one 
 Avery, a dealer in whalebone at Exeter, a parcel of whalebone 
 (which he sent per rail to Bristol), and also agreed with 
 Avery to take all the whalebone he might be able to supply, 
 at 2s. Id. a pound, to be sent by the defendants' railway, the 
 plaintiff to pay for the carriage. According to this arrange- 
 ment, Avery afterwards from time to time sent whalebone to 
 the plaintiff in that manner. Upon one occasion Avery wrote 
 to the plaintiff that about one hundredweight of whalebone, 
 such as the plaintiff had ordered, had been sent to him per 
 the Bristol and Exeter Railway Company Office at Exeter. 
 Soon afterwards the plaintiff wrote to Avery, "I have not 
 received your bone," and again, " I will send the draft as soon 
 as the bone is received." Subsequently Avery wrote : " Have 
 the railway company settled for the missing whalebone ? Let 
 me know if you have taken the responsibility upon yourself." 
 The whalebone turned out to be lost, and after the action the 
 defendants settled with Avery. It further appeared that the 
 parcel was directed to the plaintiff in the usual and proper 
 way, but that he had received no invoice of it beyond the letter 
 above stated, and it was objected that he had no right to sue. 
 Watson, B., held that the special plea was not strictly proved, 
 as a bad plea must be, but on the general issue reserved the 
 question as to the right of action. When the case came before 
 the Court of Exchequer, Pollock, C. B., said : " The question 
 is whether the property had passed ; if so, then the consignee 
 
 1 27 L. J. Exch. 401. 
 
ACTIONS AGAINST AND BY CARRIERS. 611 
 
 was the proper person to sue ; if not, then the vendee. For it 
 would be very inconvenient to hold the liability of a carrier to 
 be ambulatory or dependent upon some act to be done by the 
 consignee, subsequent to the loss, perhaps, with the very 
 bringing of the action itself, for to that extent the argument 
 was pressed on the part of the plaintiff* The question really 
 came, therefore, to this — whether the property had passed. 
 And that depends upon this — whether a delivery to the par- 
 ticular carrier named by the vendee is a delivery to and ac- 
 ceptance by the vendee. The only way in which that could be 
 made out, was by arguing that the adoption of the contract is 
 equivalent to the previous consent. But that cannot be, for, if 
 so, then in all the cases the consignee might have entitled 
 himself to sue by an express adoption of the contract. In all 
 cases, however, it seems to have been assumed that the prop- 
 erty must have passed at the time of the loss. And Hunt v. 
 Hechts 1 decided that it was not sufficient to satisfy the stat- 
 ute, for that the vendee should have an opportunity of reject- 
 ing the goods. The statute requires not only delivery, but 
 acceptance. And it seems to me that in this case there was 
 no acceptance nor anything else to take the case out of the 
 operation of the 17th section of the Statute of Frauds, and 
 therefore we cannot allow the contract of sale to have been 
 valid, and, if not, then any other contract dependent upon it 
 must also fail." 2 
 
 Sec. 607. Where the Consignee, even when the Property- 
 has not passed, may sue. — So, where B., a miller in Suffolk, 
 sold flour to the plaintiff, and, according to the usual course 
 of business between them, consigned it to him in Kent, paying 
 the carriage by the Great Eastern Railway to London, and, 
 the Great Eastern Railway Company having delivered it to the 
 South-Eastern Railway Company, the latter forwarded it to 
 the plaintiff in Kent, and charged him for the carriage by 
 their line, it was held that, although the property in the flour 
 might not have passed to the plaintiff under the Statute of 
 
 x 8 Exoh. 814; 22 L. J. Exch. L. J. Q. B. 401. The case of Hart v. 
 293. Sattley, 3 Camp. 528, must be held to 
 
 2 See also Meredith v. Meegh, 22 be overruled. 
 
612 THE LAW OP CARRIERS. 
 
 Frauds, he was — as he had contracted with the latter rail- 
 way company for the carriage — entitled to sue them for 
 damage done to it in the transit over their line. 1 
 
 Sec. 608. Property in Goods. — Again, in the case of Sheri- 
 dan v. The New Quay Company, 2 the substantial question re- 
 lated to the passage of property from one person to another, 
 and, consequently, it bears upon the subject under considera- 
 tion. There C, who resided at M., ordered goods of D., to be 
 shipped to the port of L., and to be paid for in cash against 
 the bill of lading. C. never obtained the bill of lading, or 
 paid for the goods, but he sold the latter to the plaintiff. The 
 goods arrived at the port of L., but were not to be delivered 
 except on payment of the freight. At an interview between 
 the captain and B. (the plaintiff's agent at L.), at which D. 
 was present, the captain said, in answer to B.'s question where 
 the bill of lading was, that D. had passed it on to C, which 
 was true, the bill having, in fact, been sent to D.'s agent at M. 
 for that purpose, but C. not paying for the goods the bill was 
 returned to D. after this interview. No arrangement was 
 then come to, but shortly afterwards B., as plaintiff's agent, 
 paid the freight on receiving from the captain a document 
 given to him by D. when the bill of lading was signed, by 
 which D. requested C.'s agent at L. to pay the captain his 
 freight. The defendants, who were common carriers, were 
 then employed by B. to forward the goods to the plaintiff. It 
 was held that the plaintiff had acquired no right to take pos- 
 session of the goods as buyer, either by the purchase from C. 
 or by the conduct of D. at the interview between the captain 
 and B., coupled with the document requesting payment of 
 freight, and the payment of freight thereon. 3 
 
 1 Mead v. South-Eastern Kail. Co., property in the goods therein men- 
 18 W. R. 735. tioned shall pass upon or by reason of 
 
 2 28 L. J. C. P. 58; Sanquer v. such consignment or indorsement, shall 
 London & South-Western Rail. Co., have transferred to and vested in him 
 16 C. B. 163. all rights of suit, and be subject to the 
 
 8 See 1 8 & 19 Vict. c. 11, § 1, which same liabilities in respect of such goods, 
 
 enacts "that every consignee of goods as if the contract contained in the bill 
 
 named in a bill of lading, and every in- of lading had been made with himself." 
 
 dorsee of a bill of lading to whom the See also, per Bbamwell, B., in Foster 
 
ACTIONS AGAINST AND BY CARRIERS. 613 
 
 Sec. 609. " Bill of Lading " defined. — In connection with this 
 case, a clause of " The Customs Tariff Amendment Act, 1860," 
 may be alluded to, by which the term " bill of lading " " is con- 
 strued to mean any bill of lading, or other instrument equiva- 
 lent thereto, or used in the place thereof, for the consignment 
 or forwarding of any goods to foreign parts, or which shall or 
 may be used by any shipper, carrier, forwarder, or consignee, 
 broker, or other person, as and for, or to serve the purpose of, 
 a bill of lading, for the exportation of goods, whether shipped 
 direct from port of shipment or forwarded by railway, canal, 
 or other mode of transit or carriage, to any port or place for 
 shipment." x 
 
 Sec. 610. "Carrier" defined. — By the same act, the term 
 " carrier " or " forwarder " is defined to mean " any public car- 
 rier or other person undertaking the through carriage, by land 
 or sea, of any goods to foreign parts, or the carriage of any 
 goods to any port or place of shipment, to be there shipped and 
 exported to foreign parts," and the term " goods " means only 
 wares and merchandise exported in this way, and does not 
 apply to small parcels or articles for which shipping bills are 
 not required. 2 
 
 SEC 611. Where Delivery to Carrier operates as Delivery 
 to Purchaser. — Vendor may stop in Transitu. — Person em- 
 ploying Carrier must bring Actipn. — Special Agreement. — 
 It may then be laid down, as we have seen, as a general rule, 
 "that if a tradesman order goods to be sent by a carrier, 
 though he does not name any particular one, the moment the 
 goods are delivered to the carrier it operates, as a delivery 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 happen to them it is at his risk. The 
 only exception to the purchaser's right over the goods is that 
 the vendor, in case of the former becoming insolvent, may 
 stop them in transitu." ' 3 And when a deviation has to be 
 
 v. Colby, 28 L. J. Exch. 81, 88; Shand 3 Per Loud Alvanlby in Dutton v. 
 
 v. Sanderson, 28 L. J. Bxeli. 778, Solomonson, 3 B. & P. 584 ; see also 
 
 where declaration was based on statute. Jacobs v. Nelson, 3 Taunt. 423 ; Bich- 
 
 1 23 Vict. c. 22, § 21. ardson v. Dunn, 2 Q. B. 224. 
 
 2 Ibid. § 24. See Maelachlan on 
 Ship. p. 341. 
 
614 THE LAW OF CARRIERS. 
 
 made from that rule it must be in conformity not with the 
 rule, laid down by Lord Kenyon in Dawes v. Peck, 1 that the 
 question whether the consignor or the consignee is the party 
 to sue must be governed by the answer to the question in 
 whom the right of property is vested, but in conformity with 
 the ruling of Parke, J., in Freeman v. Birch, 2 which was that 
 the person employing the carrier must bring the action. In 
 that case the circumstance of the legal right being vested in 
 one of the parties may be evidence of the employment of the 
 carrier by that person. It is, however, important in all cases 
 to discover, in the first instance, whether there is any special 
 agreement ; for if there exists any such agreement between one 
 of the parties and the carrier, for the carriage and convey- 
 ance of the goods, it is indubitably the proper duty of the 
 person who entered into the agreement to sue upon its breach, 
 and if another party did sue upon the agreement the action 
 would not lie. Where the consignor has made himself person- 
 ally responsible for the hire of the carriage, then he will be 
 the proper party to sue for the loss of the goods. 3 In Joseph 
 v. Knox, 4 the plaintiff, the consignor having received goods 
 from Amsterdam to be transmitted to the consignee in Suri- 
 nam, shipped them on board the defendant's vessel upon a bill 
 of lading which stated that the goods were shipped by the 
 plaintiff, that they were to be delivered in Surinam to the 
 consignee or his assigns, and that the freight was to be paid 
 by the plaintiff in London ; it was held by Lord Ellenbor- 
 ough that the defendant after having signed such a bill of 
 lading could not bring the ownership of the goods in question ; 
 
 1 8 T. R. 322. See also Snee v. S. & R. (Penn.) 428 ; Chandler v. 
 Prescott, 1 Ld. Raym. 271; Evans Sprague, 5 Met. (Mass.) 306; Conard 
 v. Martlett, 6 East, 22 ; Newson v. v. Atlantic Ins. Co., 1 Pet. (U. S.) 
 Thornton, 4 East, 211 ; Cox v. Harden, 386. 
 7 T. R. 440 ; Hodgson v. Loy, 8 T. R. 2 1 Nev. & M. 420. 
 330 ; Davis v. James, 5 Burr. 2680 ; 8 Davis v. James, 5 Burr. 2680 ; 
 Moore v. "Wilson, 1 D. & E. 659 ; Dnt- Sargent v. Morris, 3 B. & Aid. 277 ; 
 ton v. Solomonson, 3 B. & P. 582; Moore v. Wilson, 1 T. R. 659; Rob- 
 Potter v. Laming, 1 John. (N. Y.) inson v. Dunuiore, 2 B. & P. 416. 
 217 ; Lyle v. Barker, 5 Binn. (Penn.) But see Griffiths v. Ingledew, 6 S. & 
 457; Sanderson v. Lamberton, 6 Binn. R. (Penn.) 429. 
 (Penn.) 129 ; Griffiths v. Ingledew, 6 * 3 Camp. 320. 
 
ACTIONS AGAINST AND BY CARRIERS. 615 
 
 the consideration upon which the contract was founded moved 
 from the plaintiff, the undertaking was made to him, and he 
 was therefore entitled to maintain the action to recover the 
 value of the goods, and would hold the sum recovered as trus- 
 tee for the real owner. Burroughs, J., in delivering his judg- 
 ment in the case of Stevenson v. Hart, 1 which was a case in 
 which the duty of the carrier to deliver goods at the address 
 to which they were directed was considered, said : " The de- 
 fendants were directed to deliver the box at No. 27 Great 
 Winchester Street, and on its being taken there, according to 
 the direction, the defendants' porter found that the house was 
 untenanted, and that no such person as West (to whom the 
 box was addressed) ever lived there, nor was there any person 
 of that name in the street. The defendants had performed 
 their contract when they took the box to the house to which 
 it was directed, and it afterwards remained in their hands as 
 the property of the sender. A new contract then arose be- 
 tween the plaintiff (the consignor) and the defendants as car- 
 riers, and they ought to have taken care of the box for him." 
 This places the subject in a new and not unimportant light. 
 
 Sec. 612. Where Consignee cannot be found. — Where no 
 consignee can be found the property in the goods cannot be 
 said to be vested in him ; but because no consignee can be 
 found the carrier's duties in relation to the goods which were 
 intrusted to him have not thereby come to an end. He may 
 have done all that he was paid to do, with the exception of 
 performing that part of his duty which would determine his 
 responsibility, namely, delivering the goods at the place to 
 which they were addressed, and that duty may have been 
 unperformed through the interposition of inevitable circum- 
 stances, and not through any neglect upon his part. 
 
 SEC. 613. Carrier's Duty. — Consignor's Remedy. — Still 
 until delivery, or something equivalent, has taken place, the 
 carrier is not discharged, and his duty is to hold them for, and 
 upon payment of all fair and reasonable charges to return 
 them to, the consignor. If he should fail to do so, it is clear 
 that the consignor who bailed the goods to him, might main- 
 
 1 1 Moore & P. 357. 
 
616 THE LAW OF CAEEIEES. 
 
 tain an action against him ; and if while they were in the hands 
 of the carrier they were lost, the consignor would be the proper 
 person under these circumstances to sue. 
 
 Sec. 614. In Case of Carriers by Water, Bill of Lading to 
 be referred to. — We have seen that, in all cases, it is of im- 
 portance first to ascertain whether there is any special con- 
 tract between the parties, as to the carriage of the goods, 
 before coming to a decision as to the proper party to sue. 
 Now, although the general principles stated above are appli- 
 cable both to land carriers and water carriers, still, in the 
 case of the latter, the bill of lading should always be referred 
 to as indicating the intention of the parties, and as showing 
 for whose use the contract was entered into, which latter 
 point is of some importance in determining the parties to an 
 action of this nature, when the right of action arises on a 
 simple contract. " If goods by bill of lading are consigned to 
 A., A- is the owner, and must bring the action against the 
 master of the ship if they are lost, but if the bill be special, 
 to be delivered to A. to the use of B., B. ought to bring the 
 action; if, however, the bill be general to A., and the invoice 
 only shows that they are upon the account of B., A. ought 
 always to bring the action, for the property is in him, and B. 
 has only a trust." 1 Where, however, bills of lading construc- 
 tively of the same import, and for the same goods, are in the 
 hands of different holders, whose equities are equal, possession 
 is determined in favor of him who has the legal title. Where, 
 therefore, a Jamaica planter procured bills of lading to be 
 signed by the master, one making the goods deliverable to his 
 agent in this country, and two deliverable to the shipper him- 
 self, and he indorsed the latter two to A. B. in this country, 
 forwarding also the remaining one to his agent, who was 
 informed of the indorsement of the others, and who, never- 
 theless, indorsed the bill of lading sent to him over to C. D., 
 it was held, first, that the agent being, for the purposes of law, 
 identical with his principal, all the bills of lading were con- 
 structively deliverable to the shipper ; and, secondly, that the 
 
 1 Sargent v. Morris, 3 B. & Aid. 612; Evans v. Martlett, 1 Ld. Raym. 
 277. See Pinder v. Wilks, 5 Taunt. 271. 
 
ACTIONS AGAINST AND BY CARRIERS. 617 
 
 first legal title rested in A. B. by indorsement of the bills of 
 lading to him, and he was therefore entitled to possession of 
 the cargo, although C. D. had been the first to claim it. 1 
 
 SEC. 615. Bill of Lading, Evidence of what. — It is to be 
 remembered that a bill of lading is evidence of a contract 
 safely to carry the goods whereof bailment is acknowledged, 
 and to deliver the same at the destined port to the person 
 mentioned or his assigns, and upon the terms mentioned. 2 
 Except where the bill of lading introduces special circum- 
 stances as modifying the contract, the law is the same as that 
 applicable to any other kind of bailment for conveyance. 
 Where a consignee at Liverpool, on receipt of a bill of lading, 
 by which goods actually laden at Longford were made deliver- 
 able to certain persons in Dublin, "in care for and to be 
 shipped to " him, accepted on the faith of the consignment a 
 bill of exchange, it was held that the bill of lading was evi- 
 dence of an intention on the part of the consignor at the time 
 of the lading to vest in the consignee the property in the 
 specific chattels laden, and that he might bring an action in 
 trover for them against a person to whom they had been 
 delivered under a subsequent order of the consignor. But 
 the statute quoted above in reference to this matter operates 
 a transfer of the contract with its rights and liabilities, on 
 condition of the vesting of the property, and that fact is, as 
 we have seen, difficult, in many cases, of detection, being 
 always dependent upon the evidence of intention in respect of 
 it. 3 The mere possession of goods by a carrier as a bailee 
 entitles him to maintain an action against any one for loss of 
 or damage caused to them while they are in his hands. 4 
 
 Sec. 616. Parties to be sued. — Sufficient has been said 
 concerning this subject in this place, 5 and we turn to the con- 
 
 1 Caldwell v. Ball, 1 T. R. 205. 4 Jefferies v. Great "Western Rail. 
 
 2 Caldwell v. Ball, per Bullek, J„ 1 Co., 5 El. & Bl. 508 ; 25 L. J. Q. B. 
 T.B, 205,216. PerBBAMWELL,B.,in 107. 
 
 Foster v. Colby, 28 L. J. Exch. 81, 85. 6 See further on this subject, Ab- 
 
 8 Reyans v. Wise, 4 M. & W. 775 ; bott on Ship., pt. iv. ch. 4, p. 284, 11th 
 
 Van Casteel v. Booker, 2 Exch. 69 ; ed. ; Maclachlan on Ship., ch. viii. 
 
 Anderson v. Clarke, 2 Bing. 20. See p. 338, &c. 
 Brown v. Hare, 3 H. & N. 484. 
 
618 THE LAW OP CARRIERS. 
 
 sideration of the question, Who may be sued ? It is as im- 
 portant to answer this question correctly as to come to a 
 satisfactory conclusion in reference to that just discussed. 
 At first sight it might seem to be a question as to whether, 
 when a master carrier employed a large number of servants, 
 and the accident which caused the loss or injury to the goods 
 had occurred through the negligence of one of these, it was 
 the injured parties' duty to sue the servant or his employer. 
 But the whole of the principles of law point to the master as 
 the proper person to be sued, and an action will not lie against 
 the servant. The principal and not the agent is responsible 
 for accidents occurring through the negligence of the latter, 
 and the only way in which a master can protect himself from 
 consequences for which he is not directly responsible is to 
 exercise care in the choice of those he engages to do his 
 work. There is no great hardship in this. Human nature 
 can be relied upon. Men habitually careful will be careful in 
 time to come. If a man builds a house with timber which is 
 rotten, he is responsible for the fall of the house ; so, if he 
 employs an individual concerning whose skill and caution he 
 has no knowledge, he is responsible for any mishap which 
 may arise from a want or absence of these qualities, the 
 presence of which he was not at pains to ascertain. 
 
 Sec. 617. Latent Defects in Men. — One question which has 
 not, so far as we know, been considered in a court of law, has 
 relation to latent defects which may exist in men, just as they 
 exist in railway tires or axles. A latent defect in the making 
 of a manufactured article is one which no care can avoid and 
 which no inspection could have discovered. It seems to us 
 that under such circumstances an accident arising from such 
 a defect might with justice be considered as due to the act of 
 God, and therefore one of those casualties against which the 
 carrier does not insure. The fact that it arises from the 
 inside, as from a flaw in welding of a wheel tire caused by an 
 air bubble, 1 instead of from the outside, as from a storm of 
 wind, a flash of lightning, or the attack of overwhelming 
 
 1 Redhead v. Midland Rail. Co., L. R. Q. B. 412 ; 4 L. R. Q. B. 379, 
 Exoli. Ch. 
 
ACTIONS AGAINST AND BY CARRIERS. 619 
 
 enemies, seems to us to make no manner of difference. It is 
 the inevitability and the unavoidability which is the point to 
 be considered. If no human care or ability could in the 
 present condition of knowledge have averted the catastrophe, 
 it would be absurd upon every ground to hold the person 
 responsible. If, then, a man may select a wheel with a defect 
 in it, which may cause an accident for which he will not be 
 held responsible, so it seems to us may a master select a ser- 
 vant with a latent defect, concerning which he can know 
 nothing and can procure no information — as, for instance, a 
 hereditary tendency to insanity, a liability of epileptic or cat- 
 aleptic seizures — through which, if an accident occurred, he 
 could not with justice be regarded as in any way responsible. 
 To our knowledge the doctrine of latent defects has not as 
 yet been acknowledged as applicable to this branch of the law 
 of carriers, and the general principle which is to guide the 
 practitioner is that an action for negligence is to be brought 
 against the master and not against the servant. 
 
 SEC. 618. Action to be brought against Master for Injury 
 caused by Servant. — The Scope of Authority to be considered. — 
 Still this general principle requires to be more minutely con- 
 sidered. Thus there are some servants of carriers, who do a 
 little business on their own account. The driver of a coal- 
 cart, whose master only undertakes to carry coal, and who is 
 therefore only a common carrier in relation to that mineral, 
 may be intrusted with a hand-parcel, to convey from one place 
 to another. In such a case the master would not be respon- 
 sible for the loss of the parcel. 1 But wherever the under- 
 taking is clearly within the scope of the servant's authority, 
 the master will be regarded as the proper person against 
 whom the action may be brought. In Williams v. Cranston, 2 
 it appeared that a watch had been delivered to the driver of a 
 stage-coach, to be delivered, and Lord Ellenborough held 
 that the master, and not the servant, was liable for the loss, 
 and that, as the plaintiff had brought his action against the 
 servant only, he must be nonsuited. He remarked: "I 
 
 1 Beauchamp v. Powley, 1 M. & R. 38. 2 8 Stark. 82. 
 
620 THE LAW OP CARRIERS. 
 
 accede to the proposition, that if the defendant could be con- 
 sidered as having taken the watch to be carried on his own 
 account, for reward to be paid to him, he would be liable, 
 although he acted in fraud of his master. If it could be 
 shown that he had been in the habit of conveying parcels for 
 hire, the case would certainly be altered, but, being the mere 
 servant, it cannot be inferred that he took the parcel to be 
 carried for hire and reward without further proof. The only 
 fact is, that he was the driver of the coach ; no contract has 
 been proved ; there is nothing to indicate that the defendant 
 received the parcel otherwise than in the character of a ser- 
 vant. I should have been glad if the case could have been 
 carried further. At present, the loss appears to have resulted 
 from the negligence of the master, through the negligence of 
 his servant." The law on that point is clear. 
 
 SEC. 619. The Agent's Authority. — In all such cases the 
 scope of the authority of the agent is to be considered. Of 
 course, in no case can an accident be said to be strictly within 
 the scope of the authority of the agent, but that is not what is 
 meant by the above statement. It is not the authorization by 
 the principal in reference to a particular act which will make 
 him responsible for his servant's negligence. The question to 
 be decided is, whether, when the act of negligence occurred, 
 the servant was acting within the scope of his general au- 
 thority. Thus a proprietor of stage-coaches may have a 
 man-servant, who, with a view of enjoying a holiday, hires or 
 borrows a vehicle, and drives himself out into the country. 
 
 Sec. 620. Action to be brought against Servant 'when. — 
 If upon such an excursion the servant, through reckless driv- 
 ing, injures any one, the injured party must bring his action 
 against the servant, and not against the master, for at the 
 time the accident occurred the servant was not, quoad that 
 particular conveyance, the servant of his master. Where, too, 
 the servant conducts himself in direct contravention of the 
 express authority of his master, or exceeds such authority in 
 an unreasonable way, the master will not be held liable for 
 injury arising therefrom. Another rule is of importance, and 
 that is that a man may become a principal after the fact by 
 
ACTIONS AGAINST AND BY CARRIERS. 621 
 
 adopting the acts of a person who at the time of the commis- 
 sion of the act pretended, without any ground for so doing, to 
 be his agent. Unless, however, the person at the time held 
 himself out as the agent, no subsequent ratification of the acts 
 will render the individual so ratifying or confirming liable as 
 principal. 1 
 
 Sec. 621. Joinder of Parties. — A question arises here as 
 to when it will be right to join partner-carriers as defendants. 2 
 It can be answered shortly. 1. Where the action is in tort, 
 and is founded on a breach of the common-law duty, it is sev- 
 eral in its nature, and is therefore maintainable against some 
 only of those who are joined as defendants. 2. Where the 
 declaration is in assumpsit, and founded in contract, the plain- 
 tiff must prove a joint promise, as by proof that all the defend- 
 ants were proprietors. 
 
 Sec. 622. Distinction in this Particular between Carriers 
 by Land and Water. — Here, however, it is necessary to dis- 
 tinguish in this particular between carriers by land and car- 
 riers by water. The law, as it applies to these two classes, is 
 not, in regard to this matter, the same. The master' of a ship 
 is not regarded as a mere servant of the owner. He has large 
 powers, and is to be looked upon as an independent officer. 
 It is perhaps necessary for the safety of all that he should be 
 held, as he is, liable to an action for the loss or injury of the 
 property intrusted to his care, and as personally responsible to 
 the proprietors of the bailed goods. 3 
 
 SEC. 623. Rule in Blakie v. Stembridge. — In one Case i a 
 ship was chartered by the owner to one A. for a voyage with cargo 
 to Port Louis and back, for a stipulated rate of freight per ton 
 
 1 Wilson v. Furman, 6 Scott, N. 8 See Abbott on Ship., 7th ed., 167, 
 
 R. 894; and see New Jersey Steam 346; Goff v. Chukard, 1 Wils. 288; 
 
 Nav. Co. ». Merchants' Bank, ante; per Holt, in Boson v. Sandfold, 1 
 
 6 How. (U. S.) 344. See, generally, Shaw, 101. See Stone v. Ketland, 1 
 
 as to ratification, Gulick v. Grover, 33 Wash. (U. S. C. C.) 142 ; Bussey 
 
 N.J. L. 463. See also Drakeley v. v. Donaldson, 4 Dall. (Penn.) 206; 
 
 Grigg, 8 Wall. (U. S.) 242 ; Vincent Purvrance v. Angus, 1 DaU. (Penn.) 
 
 v. Rather, 31 Tex. 77; Stoddart's 180. 
 
 Case, 4 Ct. of CI. (U. S.) 511. « Blakie v. Stembridge, 28 L. J. 
 
 a Waland v. Elkins, 1 Stark. 272. C. P. 329 ; 6 C. B. k. s. 894. 
 
622 THE LAW OP CARRIERS. 
 
 on the homeward cargo — the cargo to be taken to and tendered 
 alongside at the charterer's risk and expense, the ship to be 
 conveyed to charterer's agent at ports of loading and discharge, 
 and a stevedore for the outward cargo to be appointed by the 
 charterer, but to be paid by and act under the captain's orders. 
 The charterer put up the ship as a general ship for Port Louis, 
 and appointed a stevedore, who, with his men, went on board 
 for the purpose of stowing the vessel in the usual course of 
 his business. The master gave no orders to, or in any way 
 interfered with, the stevedore, only looking into the hold occa- 
 sionally to see how the cargo was being stowed, for the safety 
 of the ship. The plaintiff's agents arranged with the broker 
 of the charterer for the freight and carriage to Port Louis of 
 certain sugar pans, and sent them alongside the ship. Whilst 
 the pans were being hoisted on board from the lighter by the 
 stevedore and his men, two of them were by their negligence 
 damaged. It was held that under these circumstances the 
 stevedore was not the servant or agent of the master so as to 
 render him responsible. Willes, J., in the course of his 
 judgment', said : " By the maritime law, in the absence of cus- 
 tom or agreement to the contrary, it is the duty of the master, 
 on the part of the owner, to receive and properly stow on 
 board the goods to be carried; which, ordinarily, are to be 
 delivered to him alongside. For any damage occasioned to 
 the goods by negligence in the performance of such duty the 
 owner is liable to the shipper. If the damage result from 
 misconduct of the master, he is answerable to the owners, and 
 probably also directly to the shipper. 
 
 Sec. 624. Scotch Rule. — " Where it happened through 
 the misconduct of the mate, or others of the crew, without 
 fault on the part of the master, it was held by the majority 
 of the Court of Session in Petrie's Executors v. Aitchison, 1 
 that the master was not answerable to the owners, though it 
 appears to have been taken for granted, perhaps upon the 
 principle asserted by Story, J., in the passage cited, 2 that 
 
 1 15 Faculty Decisions, 493 (6th to the rule already stated, as to the 
 Feb. 1841). non-liability of agents to third persons 
 
 2 "There is one important exception for the negligence and omissions of 
 
ACTIONS AGAINST AND BY CARRIERS. 
 
 623 
 
 the master would in such case have been answerable to the 
 shipper." 1 
 
 Sec. 625. Option of Plaintiff to sue Master or Owner. — 
 While the master is thus liable, it is still in the option of the 
 plaintiff, unless there is some special contract with the own- 
 ers, to sue either the master or his masters ; and on the other 
 hand a special contract with the master will equally bind the 
 plaintiff to proceed against him instead of the owners. One 
 other case may be alluded to in this connection. In that case 
 a ship was chartered for a voyage from Oporto to the United 
 Kingdom, to load, from the factors of the affreighter, a full 
 cargo of wine, or other merchandise, at 18s. 6c?. per ton ; the 
 captain to sign bills of lading at any rate of freight, without 
 prejudice to the charter ; the ship to be addressed to charter- 
 er's agent at Oporto on usual terms. The ship was accord- 
 ingly consigned to the charterer's agents at Oporto-, and was 
 
 duty of themselves, and of their sub- 
 agents, founded upon the principles of 
 maritime law. In the case of masters 
 of ships, who, although they are the 
 agents or servants of the owners, are 
 also, in many respects, deemed to be 
 responsible as principals to third per- 
 sons, not only for their own negligences 
 and non-feasances, but also for the 
 negligences, non-feasances, and mis- 
 feasances of their subordinate officers, 
 and others employed by and under 
 them. "We have already seen that the 
 master of the ship is responsible upon 
 contracts made by him iu regard to the 
 usual employment of the ship, and also 
 upon contracts made by him for the 
 repairs and necessaries supplied for 
 the ship, as well as for the wages of 
 the seamen employed in navigating the 
 ship. This liability is founded upon 
 the doctrine of the maritime law, which 
 treats the master not merely as an 
 agent contracting on his own behalf, 
 as well as for the owner; but which 
 upon a broader policy trea'ts him as in 
 some sort a subrogated principal and 
 qualified owner of the ship, possessing 
 authority in the nature of the exerci- 
 
 torial power for the time being. And 
 his liability, founded upon this con- 
 sideration, extends not merely to his 
 contracts, but to his own negligences 
 and non-feasances and misfeasances, as 
 well as to those of his officers and 
 crew. His responsibility for the officers 
 and crew has this additional reason for 
 its support, that he is thus iuduced to 
 exercise a superior watchfulness over 
 their acts and conduct ; and, if he were 
 not so made liable for their acts and 
 conduct, be might often, by his con- 
 nivance in their frauds, misfeasances, 
 and negligences or non-feasances, sub- 
 ject the shipper of goods, as well as 
 the owners of the ship to great losses 
 and injuries without their having any 
 adequate redress. The policy of the 
 maritime law has, therefore, indis- 
 solubly connected his personal respon- 
 sibility with that of all the other 
 persons on board who are under his 
 command, and are subject to his au- 
 thority." Story on Agency, § 314. 
 
 1 See also Sack v. Ford, 13 C. B. 
 H. 8. 90; 32 L. J. C. P. 12; New- 
 bury v. Colvin, 1 CI. & T. 283. 
 
624 THE LAW OP CARRIERS. 
 
 put up by them as a general ship without any intimation that 
 she was under charter. The plaintiff shipped some casks of 
 wine, and received bills of lading in the common form signed 
 by the master. The wine was stowed by a stevedore, ap- 
 pointed by the charterer's agents, and paid by them, the 
 money being ultimately repaid them by the master. The 
 goods having been damaged, by reason of improper stowage, 
 the plaintiff brought an action against the defendants, as 
 owners of the vessel, and the question which the court had to 
 decide was whether, under the circumstances, they were liable. 
 It was held in the affirmative, and that the action against 
 them lay. In delivering the judgment of the court, Cockburn, 
 C. J., said : 1 "It is unnecessary to decide whether the char- 
 terer would or would not have been liable, if an action had, 
 under the circumstances, been brought against him. Our 
 judgment- proceeds on a ground, wholly irrespective of the 
 question of the charterer's liability, and not inconsistent with 
 it, namely, that the plaintiffs, having delivered their goods to 
 be carried, in ignorance of the vessel being chartered, and 
 having dealt with the master, as clothed with the ordinary 
 authority of a master, to receive goods, and give bills of lad- 
 ing on behalf of the owners, are entitled to look to the owners 
 as responsible for the safe carriage of the goods. . . . There 
 is here no demise of the ship itself, either express or implied. 
 It amounts to no more than a grant to the charterer of the 
 right to have his cargo brought home in the ship, while the 
 ship itself continues, through the master and crew, in the pos- 
 session of the owners, the master and crew remaining their 
 servants. It is on this ground that our judgment is founded. 
 We think that so long as the relation of owner and master 
 continues, the latter, as regards parties who ship goods in 
 ignorance of any arrangement, whereby the authority ordina- 
 rily incidental to that relation is affected, must be taken to 
 have authority to bind his owner by giving bills of lading. 
 We proeeed on the well-known principle that, where a party 
 allows another to appear before the world as an agent in any 
 given capacity, he must be liable to any party who contracts 
 
 1 Sandeman v. Sourr, 2 L. R. Q. B. 86, at p. 95. 
 
ACTIONS AGAINST AND BY CARRIERS. 625 
 
 with such apparent agent in a matter within the scope of such 
 agency. The master of a vessel has by law authority to sign 
 bills of lading on behalf of his owners. A person shipping 
 goods on board a vessel, unaware that the vessel has been 
 chartered to another, is warranted in assuming that the mas- 
 ter is acting by virtue of his ordinary authority, and, there- 
 fore, acting for his owners in signing bills of lading. It may 
 be that, as between the owner, the master, and the charterer, 
 the authority of the master is to sign bills of lading on behalf 
 of the charterer only, and not of the owner. But, in our 
 judgment, this altered state of the master's authority will 
 not affect the liability of the owner, whose servant the master 
 still remains, clothed with a character to which the authority 
 to bind his owner, by signing bills of lading, attaches by virtue 
 of his office. We think that, until the fact that the master's 
 authority has been put an end to is brought to the knowl- 
 edge of a shipper of goods, the latter has a right to look to 
 the owner as the principal with whom his contract has been 
 made." J With regard to another point raised in the case, his 
 Lordship said : " We attach no weight to the fact that the 
 stevedores, by whom the cargo was loaded, were appointed by 
 the charterer's agents. The stowage of goods, in the absence 
 of any special agreement, forms part of the obligation which 
 the carrier takes upon himself. It is a duty to be discharged 
 by the master and crew. By this charter the intervention of 
 a stevedore is only made necessary in order to ascertain the 
 quantity the ship could carry. There is nothing to release 
 the master and crew from their responsibility in respect of 
 the stowage. The stevedores were probably appointed by the 
 charterer's agent for the convenience of the master, the agents 
 being acquainted with the port, and knowing who were fit per- 
 sons to be employed. The expense was ultimately defrayed 
 by the master. At all events, the plaintiffs were no parties 
 to the employment of the stevedores, and have a right to look 
 to the owners for the proper stowage and safe conveyance of 
 the goods." 2 
 
 1 See also, per Dr. Lttshington, in. 2 See Sack v. Ford, 13 C. B. v. s. 90 ; 
 The St. Cloud, Brow. & Lush. 4, 15. Swainson v. Garriok, 2 L. J. Exch. 225. 
 
 40 
 
626 THE LAW OP CARRIERS. 
 
 Sec. 626. Objects of the Law. — This judgment places the 
 law upon this subject clearly before the reader, and indicates 
 the true principles which have guided the legislature in direct 
 ing persons injured where to look for the remedy which the 
 law allows them, and the definite principles which are to guide 
 lawyers in future in reference to the liability of owners for 
 injuries occurring in their ships, although there may be a 
 charter-party which is not brought to the knowledge of the 
 party intrusting his goods to be carried. Were the law other 
 than it is, it would be an inducement to set up fraudulent 
 charter-parties to protect owners from the merited conse- 
 quences of their own negligence, just as the protection of 
 owners from the consequences of the negligence of their mas- 
 ters or crew would afford opportunities of fraud and collusion 
 which it is the object of the law to prevent and avoid. 
 
 Sec. 627. The Pleadings. — One fact has become more rec- 
 ognizable in recent times, and that is that the profession of 
 the law is not an end in itself. It is a tendency of all means 
 to become ends. And the difference between wisdom and 
 folly, between true greatness and indubitable smallness, exists 
 to a large extent in the capacity of recognizing what are in- 
 struments and what are objects, — what are means and what 
 are ends. The history of superstition proves the fact that the 
 usefulness of an instrument is apt to raise it out of its position 
 and place it among the gods of a nation. All worship is truly 
 a worship of causes, and hence, when the indispensableness of 
 anything began to be felt, it began silently to assert the 
 necessity of its existence, independent of the attainment of 
 the ends which it was intended to subserve. So it has been 
 with institutions which are the instruments of a country, — 
 the tools of a people. They have not unfrequently ruled the 
 people who in the beginning wielded them ! So it was with 
 professions which were useful institutions, and, as Burke says, 
 " The degree of estimation in which any profession is held 
 becomes the standard of the estimation in which the pro- 
 fessors hold themselves." x For a long time it might have 
 seemed that laws really existed for the sake of lawyers, and 
 
 1 Reflections on Trench Revolution. 
 
ACTIONS AGAINST AND BY CARRIERS. 627 
 
 not for the benefit of society. But laws are really like the 
 hoops of a barrel, and lawyers are only the rivets which keep 
 them in their places. Now, however, as we have said above, 
 the fact has become more recognizable, and many of those 
 things which existed more for the sake of the profession than 
 for the direct benefit of the public, have been done away with. 
 Hence our present task is more easy than a few years ago it 
 would have been. 
 
 Sec. 628. The Common-Law Procedure Act, 1852. — Plead- 
 ings are now comparatively simple, and have gradually been 
 becoming more and more so since the Common-Law Procedure 
 Acts of 1852 and 1854. Before speaking of certain incidents 
 of pleading in detail, we may remark that, as the reader is 
 aware, under the Common-Law Procedure Act, 1852, all plead- 
 ings, however inartificial, are sufficient if they set out, clearly 
 and intelligibly, the substantial cause or ground of the decla- 
 ration or other pleadings ; 1 that questions of fact, after writ 
 issued, may by consent of the parties and leave of a judge, be 
 raised without any formal pleadings ; 2 that questions of law 
 may be raised summarily in a special case for the opinion of 
 the court ; 3 that where there are pleadings, they may gener- 
 ally, in any stage of the action, and even at the trial, be 
 amended, and ought to be amended by the court or a judge, 
 in order to raise the substantial issue on the merits of the 
 case between the parties ; * and that where an adverse party 
 objects to the inartificial nature of a pleading as calculated to 
 " prejudice, embarrass, and delay the fair trial of the action," 
 he cannot, as he once could, demur specially, but, unless he 
 waives the defect, must apply to a judge to strike out the 
 pleading, or to order it to be amended. 5 
 
 Sec. 629. Declarations. — Statement of Contractor Duty. — 
 In Actions of Tort. — Special Contract. — Notwithstanding the 
 simplification to which the technical science of pleading has 
 been subjected of late years, there is much care in matters of 
 
 1 See Holt v. Inhabitants of Penob- * Ibid. § 222 ; of. 23 & 24 Viet. e. 
 scot, 56 Me. 15. 126, § 36. 
 
 2 15 & 16 Vict. c. 76, § 42. » Ibid. § 51, 52. 
 s Ibid. § 46. 
 
628 THE LAW OF CARRIERS. 
 
 minute detail necessary to render an action successful, at least 
 in so far as the professional work of a lawyer is concerned, 
 and it is necessary to consider what will be held fatal to the 
 successful issue of an action. In considering the forms of 
 action which may be adopted by a plaintiff against a carrier, 
 we have, in alluding to the varying advantages of each, con- 
 sidered some of the necessities of the declarations in such 
 cases, 1 but still more remains to' be said. First, then, the 
 declaration must correctly state the contract, or the particular 
 duty or consideration from which the liability results, and on 
 which it is founded, and a variance in such statement or de- 
 scription may be as fatal, though in an action ex delicto, as in 
 an action ex contractu? Care must be taken in stating the 
 inducement in an action ex delicto, if, instead of relying on 
 the general statement, the plaintiff enters into particulars. 
 A misdescription in such particulars would be held to be a 
 fatal variance, just as in an action for slander of a physician 
 it is not necessary in general to show that he has regularly 
 taken his degree, yet if the declaration alleges that he had 
 duly taken the degree of Doctor of Physic, it is then neces- 
 sary to prove it. 3 In actions of tort the plaintiff may prove 
 a part of his charge if the averment be divisible, and there 
 be enough proved to support his case. 4 This, however, is not 
 the case in the statement of a special contract, and a vari- 
 ance between the evidence and the statement will be fatal to 
 the action, because it is entire in its nature, and must be 
 proved as laid. 5 
 
 Sec. 630. Reward, Carriage for. — Where the declaration 
 against a carrier for the loss of goods states that he un- 
 dertook to carry them for a certain reward, or a reason- 
 
 1 For forms of declaration in action 4 Eiggins v. Cogswell, 3 M. & S. 
 on the case, and in the action of as- 369. 
 
 sumpsit, see Appendix. 6 Chitty, PL, 5th ed., 334; King v. 
 
 2 Max v. Roberts, 12 East, 89 ; Pippit, 1 T. R. 240 ; and see Indin v. 
 Govett v. Radnidge, 3 East, 7; Bro- Samuel, 6 East, 333; Hughes v. Great 
 therton v. Wood, 5 B. & B. 54. See Western Rail. Co., 14 C. B. 637; 
 also, per Bosanquet, J., in Ireland v. York Rail. Co. v. Crisp, 14 C. B. 527; 
 Johnson, 1 Bing. N. C. 162. Slim ». Great Northern Rail. Co., 14 
 
 8 Moises v. Thornton, 8 T. R. 308; C. B. 647. See also Stone v. Kicowl- 
 aud see Rix v. Everett, 8 B. & C. 114. ton, 3 Wend. (N. I.) 374. 
 
ACTIONS AGAINST AND BY CARRIERS. 629 
 
 able hire and reward, it is not necessary to be more specific, 
 ■and state the amount or nature of the reward. Thus, in the 
 old case, Dalston v. Janson, 1 the allegation in the declaration 
 was that the defendant was to carry "for a reward to be 
 therefor had." In an action against a carrier for losing 
 goods, the contract, as we have seen, should be stated cor- 
 rectly, and not only the contract, but the termini. 2 A vari- 
 ance, however, is amendable, in most cases, at trial. 
 
 Sec. 631. Receipt of Goods and Breach of Contract. — In 
 " relation to such a contract to carry safely and securely for 
 hire, the delivery and receipt of the goods by the defendants 
 must be averred, and the breach must be distinctly assigned 
 in the declaration. 3 In an action of special assumpsit against 
 the defendant as the master of a ship for not safely convey- 
 ing goods, consigned by the plaintiffs, to a foreign port, evi- 
 dence that the goods were seized in another port by the 
 Government, together with a letter of the defendant's in 
 which he acknowledged that he was accountable for the goods, 
 is sufficient to warrant the jury in finding for the plaintiffs 
 without any further proof of the cause of seizure. On behalf 
 of the defendant it was objected that there was a variance be- 
 tween the bill of lading and the declaration, and between the 
 undertaking as laid in the first two counts and the breach 
 assigned, the undertaking being laid to deliver for the plain- 
 tiffs at the island of Batavia, and the breach being that the 
 defendant did not deliver to the plaintiffs. But Abbott, C. J., 
 refused to nonsuit the plaintiffs upon this objection. 4 Again, 
 where the carrier is declared against as a common carrier, 
 the contract may be treated and stated as implied. In other 
 
 1 1 Ld. Raym. 58. See also Clarke Pianciani v. London & South-Western 
 ». Gray, 6 East, 564; Hall v Cheney, Rail. Co., 18 C. B. 226. See also 
 36 N. H. 26. Myers v. Davis, 6 Blatchf. (U. S. 
 
 2 Hayman v. Raymond, 5 Taunt. C. C.) 77, in which the proper form 
 289; Tucker v. Craoklin, 2 Stark. 385 ; of declaration in an action of as- 
 Beekford v. Crutwell, 5 C. & P. 242 ; sumpsit is explained. 
 
 Ditcham v. Cliivis, 4 Bing. 706 ; 4 Cullin v. M'Alpine, 2 Stark. 552. 
 
 Woodward v. Booth, 7 B. & C. 301 ; See also Samuel v. Dareh, 2 Stark. 60; 
 
 Wieks e. Gordon, 2 B. & Aid. 335/ Streeter v. Horlock, 7 Moore, 283 ; 1 
 
 8 Max v. Roberts, 12 East, 89 ; Bing. 34. 
 
630 THE LAW OF CARRIERS. 
 
 cases an express statement of the contract is absolutely nec- 
 essary. 1 
 
 SEC. 632. In Case of Gross Negligence. — A declaration, 
 stating that goods had been delivered to the defendants, 
 as carriers, to be conveyed by them for a reasonable re- 
 ward, and that they undertook to carry them safely and 
 securely, and deliver them accordingly, and assigning for 
 breach that they lost the same, was, in the case of Smitli v. 
 Home, 2 held to be sufficient to admit proof that they had 
 been guilty of gross negligence. Where the plaintiffs de- 
 clared against the defendants as common carriers, subject to 
 the terms of a special notice, for the loss of a truss of silk 
 by the gross negligence of the defendants, and the felonious 
 acts of their servants, the allegation of gross negligence and 
 felony was held to be surplusage. 3 An averment of an under- 
 taking to carry goods to R., to be delivered to C. B., to be paid 
 for on delivery, shows with sufficient certainty that the price 
 of the goods was to be paid by C. B., the consignee, to the 
 carrier.* In Bracegirdle v. Hincks, 5 the declaration stated 
 that the defendant was indebted to the plaintiff for the car- 
 riage of goods, and it was held that that statement was not . 
 supported by proof that the defendant undertook to carry 
 goods for the plaintiff in consideration that the plaintiff 
 would carry a like quantity for the defendant. 
 
 We have of course already, in other parts of this work, 
 dealt with the allegations which are admissible, and the evi- 
 dence which is necessary to support them in the various 
 actions which may be brought against carriers. One cannot 
 allude to the decision in any case without indirectly allud- 
 ing to the pleadings and the indirect decision upon them. 
 We, of course, do not in this place propose to deal systemati- 
 cally with the whole question, but purpose to supply such 
 information as may, when taken in conjunction with other 
 
 1 Pozzi v. Shipton, 8 Ad. & El. 963; 3 Butt v. Great Western Rail. Co., 
 Bowman v. Brown, 3 Q. B. 510. 11 C. B. 140; 20 L. J. C. P. 241. 
 
 2 2 Moore, 18 ; 8 Taunt. 144 ; * Jacobs v. Nelson, 3 Taunt. 423. 
 Holt, 643. But see Mayor v. Hum- s 9 Exch. 361; 18 Jur. 70; 23 
 pbries, 1 C. & P. 251. L. J. ExcK 128. 
 
ACTIONS AGAINST AND BY CARRIERS. 631 
 
 parts of this treatise, form a complete guide in all matters 
 touching the validity of declarations and pleas. One or two 
 cases may be alluded to with this view. 
 
 SEC. 633. Terms in Ticket, Part of Contract. — In the case 
 of Shaw v. The York and North Midland Railway Company, 1 
 the declaration, which was in case, alleged that the de- 
 fendants were proprietors of a railway and of carriages for 
 the conveyance of passengers, cattle, goods, &c, for reward ; 
 that the plaintiff delivered to them, and they received from 
 him, a horse of plaintiff's, to be " safely and securely " carried 
 by them upon their railway, and to be safely and securely 
 delivered to the plaintiff at a place mentioned, for reward. It 
 averred that thereupon it was their duty " safely and securely " 
 to convey and deliver the horse as aforesaid, yet that defend- 
 ants did not use due care about its conveyance, but so neg- 
 ligently conducted themselves therein that, by reason of the 
 defective state of the carriage in which the horse was con- 
 veyed, it was killed. It appeared at the trial that a receipt 
 was given to the plaintiff for the amount paid at the time the 
 horse was received, at the foot of which receipt was written, — 
 " N.B. This ticket is issued subject to the owner's undertak- 
 ing all risks of consequence whatsoever, as the company will 
 not be responsible for any injury or damage (however caused) 
 occurring to horses or carriages while travelling, or in loading 
 or unloading." It was held that the terms of the memoran- 
 dum formed part of the contract for the conveyance of the 
 horse, and that they disproved the alleged duty of the defend- 
 ants " safely and securely " to carry and convey. In deliver- 
 ing the opinion of the court, Lord Denman, C. J., said : " It 
 appears to us to be clear that the terms contained in the ticket 
 given to the plaintiff at the time the horses were received, 
 formed part of the contract for the carriage of the horses be- 
 tween the plaintiff and the defendants, and that the allegation 
 in the declaration that the defendants received the horses to be 
 safely and securely carried by them, which would throw the 
 risk of conveyance upon the defendants, is disproved by the 
 memorandum at the foot of the ticket, and the alleged duty of 
 
 1 13 Q. B. 347; 6 Rail. Cas. 78; 18 L. J. Q. B. 181. 
 
632 THE LAW OP CAKRIERS. 
 
 the defendants safely and securely to carry does not arise 
 from such a contract. 
 
 " It may be that, notwithstanding the terms of the contract, 
 the plaintiff might have alleged that it was the duty of the de- 
 fendants to have furnished proper and sufficient carriages, and 
 that the loss happened from a breach of that duty ; but the 
 plaintiff has not so declared, but has alleged a duty which 
 does not arise upon the contract as it appeared in evidence." 
 
 SEC. 634. Limitation of Liability always to be consid- 
 ered. — Qualified and Unqualified Contract. — This decision in- 
 dicates the importance of considering the whole subject of the 
 limitation of the responsibility of carriers, and the consequent 
 modification of the contract entered into by persons delivering 
 goods to them to be carried, in connection with this branch of 
 the subject. When any such modification of the duty or lia- 
 bility of a common carrier is introduced by contract, it will, 
 as the above case shows, be fatal to declare, as if no such 
 modification had been introduced. Another case which ex- 
 plicates the same doctrine may be mentioned here, — that is 
 the case of Austin v. The Manchester, Sheffield, and Lincoln- 
 shire Railway Company, 1 already repeatedly referred to. In 
 that case the declaration alleged that the defendants were 
 proprietors of a railway and carriages for the conveyance of 
 passengers, cattle, &c, for hire ; that the plaintiff delivered to 
 them and they received horses from the plaintiff, to be carried 
 for the plaintiff in their carriages for reward ; and that one of 
 the wheels of a carriage in which some of the horses were 
 being conveyed caught fire from friction ; that the plaintiff at 
 the next station requested the defendants to change such car- 
 riage, and not to persist further in conveying his horses in the 
 same ; that in spite of such request they did so persist ; that 
 the wheel, afterwards, from want of precaution against friction, 
 and not otherwise, was snapped a,sunder, whereby the carriage 
 was thrown off the rails, and the horses were injured. It ap- 
 peared that the plaintiff, at the time of agreeing for the car- 
 riage of the horses, was informed by the station-master that 
 he would have to run all risks of carriage, to which he as- 
 
 1 16 Q. B. 600; 20 L. J. Q. B. 440; 15 Jur. 670. 
 
ACTIONS AGAINST AND BY CARRIERS. 633 
 
 sented ; and he also signed a ticket in a book of the com- 
 pany, which contained a memorandum that the owner of the 
 horses was to be required to see to the efficiency of the car- 
 riages ; that the company was not to be responsible for any 
 alleged defects in their carriages or trucks, unless complaint 
 was made at the time of booking, or before leaving the station, 
 nor for any damage, however caused, to horses, &c, travelling 
 upon the railway. It was held that, whether the declaration 
 was founded upon the common-law liability of the defendants 
 as carriers, or upon a special contract, there was a variance ; 
 in the former case, because there was proof of a special con- 
 tract ; in the latter case, because the declaration alleged an 
 unqualified contract to carry, whereas the contract proved was 
 to carry, the defendants not being answerable for certain 
 risks ; that the allegation traversed by the plea was a ma- 
 terial allegation, as the extent of the defendant's liability 
 depended upon the nature of the bailment to them ; and that 
 an allegation of a delivery to be carried was equivalent to an 
 allegation of a delivery to be safely and securely carried, 
 subject to such exceptions as the law will create. 1 
 
 Sec. 635. Reasonable Time. — In an action against a car- 
 rier, the declaration alleged that the plaintiff delivered goods 
 to him to be carried for hire from London to Birmingham, 
 and there to be delivered, and that it became his duty safely 
 and securely to carry and deliver the goods at Birmingham, and 
 that a reasonable time for so doing had elapsed, but that 
 he did not safely or securely carry or deliver the same, but so 
 negligently conducted himself that the goods became wholly 
 lost to the plaintiff. Tindal, C. J., in considering the two 
 questions, — first, as to the defendant's duty, and second, as to 
 the breach of that duty, — said : " It was not denied that if 
 the action had been brought for the total loss of the parcel, 
 and the evidence has shown that it had never been delivered, 
 the plaintiff would have been entitled to recover upon the 
 declaration as now framed ; and if so, then it necessarily fol- 
 
 1 See also White v. Great Western n. s. 620 ; and see ante, eh. vii. 
 Rail. Co., 2 0. B. k. s. 7; and Simons p. 190; Kimball v. Rutland & Bur- 
 ». Great Western Rail. Co., 2 C. B. lington R. R. Co., 26 Yt. 247. 
 
634 THE LAW OF CARRIERS. 
 
 lows that the evidence given as to the contract and duty of 
 the defendants would prove the duty as laid. Neither could 
 it be denied that if it had been alleged to be the defendant's 
 duty to deliver within a reasonable time, the same evidence 
 would have been sufficient to support the allegation, the duty 
 to deliver within a reasonable time being merely a term en- 
 grafted by legal implication upon a promise or duty to deliver 
 generally. No valid objection therefore exists to the proof of 
 the duty as alleged. Whether such allegation would have 
 been good upon special demurrer, if the only breach had been 
 the non-delivery within a reasonable time, is another ques- 
 tion, not material to our present inquiry. But it is said no 
 such breach is alleged in this declaration, and yet that is the 
 only breach supported by the evidence. But we think that the 
 breach in this declaration may be read as, in effect, stating, 
 that the defendants did not within a reasonable time, or at 
 any time afterwards, deliver the goods to the plaintiff, but 
 that by the defendants' negligence they became wholly lost to 
 the plaintiff. And if the breach had been so in form, it would 
 have been sufficient for the plaintiff to prove so much of the 
 breach as would support his right of action ; and as the onus 
 of proving the delivery would rest upon the defendants, unless 
 they proved a delivery within a reasonable time, the plaintiff's 
 right of action, and, consequently, the breach alleged, would 
 be established." 1 
 
 SEC. 636. Breach of Implied Duty sufficient Declaration. — 
 In an action against a cab proprietor, the declaration stated 
 that the plaintiff hired the vehicle, and that, in consideration 
 of the premises, and that the plaintiff, with his luggage, 
 would become a passenger, and of certain reward, the de- 
 fendant promised the plaintiff to carry and convey him and 
 his luggage safely and securely, and alleged a loss of part 
 of the luggage by the negligence of the defendant's servants. 
 Under these circumstances it was held that the declaration 
 was sufficient to charge the defendant for a breach of his im- 
 plied duty to use an ordinary degree of care, the words " safely 
 
 1 Raphael v. Pickford, 5 M. & G. C. P. 176. See Levene v. Great 
 551 ; 6 Scott, N. R. 478; 12 L. J. Western Rail. Co., 18 L. T. jr. s. 295. 
 
ACTIONS AGAINST AND BY CARRIERS. 635 
 
 and securely " not necessarily importing a more extended liabil- 
 ity. In delivering his judgment, Tindal, C. J., said : " In the 
 present case any express promise is out of the question, from 
 the circumstances out of which this action arose ; and we have 
 therefore to consider whether any implied promise, such as is 
 alleged in the declaration, arose out of the contract there 
 stated. 
 
 SEC. 637. The Words "safely and securely." — "Perhaps, if 
 we look at the words ' safely and securely,' according to their 
 strict meaning they do not state the promise which the de- 
 fendant has impliedly made ; but the question is, whether they 
 may not be modified according to the relation of the parties 
 as it appears in the declaration, and I think they may. First, 
 there is a long series of precedents, where the duty is laid 
 wider than would be proper unless this sense is given to the 
 words ; and we must, therefore, suppose that the law has sanc- 
 tioned this mode of laying the declaration, though it may be 
 wider in its apparent meaning than the actual breach of the 
 duty alleged. Thus, to take an example from the precedents 
 which have been cited, we see that, in an action against a 
 party for not taking care of his fire, the words salvo et securS 
 are used, though the law only imposed a duty of properly 
 keeping a fire ; 1 so, for improperly craining goods, one cannot 
 suppose that in that case a formal agreement was previously 
 made, and yet the words used are, ' Salvo et secure absque damno 
 proprietarii cranare.' 2 One can only infer, therefore, from the 
 general observance that we are to look to the words with re- 
 lation to the parties as they appear before us. In the present 
 case the party was a cabman, and I think the words mean 
 ' safely and securely, with reference to the care which the law 
 imposes upon him liability for.' If the party had been a com- 
 mon carrier, then the words would have been absolute, except 
 the act of God or the king's enemies. If, on the other hand, 
 the party were a gratuitous bailee, then a less degree of care 
 and caution would be required, so that the way in which the 
 words are to be construed is safely and securely, with ref- 
 erence to the duty imposed." 3 
 
 1 See also Cliff's Entries, p. 39. 3 Rose v. Hill, 15 L. J. C. P. 182, 
 
 2 RastalFs Entries, 3 b. 185 ; 2 C. B. 877; 3 D. & L. 788. 
 
636 THE LAW OP CARRIERS. 
 
 Sec. 638. Termini to be correctly stated. — As we remarked 
 above, 1 the termini must be correctly stated in the declaration. 2 
 But an averment of a contract to carry goods from London to 
 Bath is sufficiently supported by evidence of a contract to 
 carry from Westminster to Bath ; for if the evidence as to the 
 termini substantially supports the allegation in the declaration, 
 and is not inconsistent with it, there is no variance, and there- 
 fore no fatality. Where a plaintiff alleged that the defendant 
 having agreed to convey her safely by his coach from London 
 to Blackheath, neglected his duty by permitting the horses to 
 move on while she was getting up, whereby she was thrown 
 down and injured, it was held to be no variance that the de- 
 fendant's coach ran from Charing Cross to Blackheath, and 
 that the plaintiff got up at the Elephant and Castle ; though 
 the defendant had inscribed on his coach " London to Black- 
 heath." 8 In another case the declaration stated that the 
 plaintiff delivered a trunk to the defendant to be put into a 
 coach at Chester, in the county of Chester ; to wit, at, &c, and 
 safely to be carried to Shrewsbury, and that through the de- 
 fendant's negligence it was lost. It appeared at the trial that 
 the trunk was delivered to the defendant at the city of Chester, 
 which is a county of itself, separate from the county of Ches- 
 ter at large, but within its ambit ; and it was held that that 
 was not a material variance, but that the declaration was 
 supported by the evidence, as no evidence was given of any 
 other place called "Chester." 4 
 
 SEC. 639. Pleas. — Won assumpsit. — Not Guilty. — The 
 distinction between an action on the case for tort and an 
 action of assumpsit against a carrier, is made more clear in 
 relation to the pleas, — the general issue in the former case 
 being " not guilty," and in the latter non assumpsit. The New 
 Pleading Rules, Hilary Term, 1853, r. 6, determines that " In 
 
 See Harris v. Costard, 1 C. & P. 636; 2 Hayman v. Raymond, 5 Taunt. 
 
 Beauchamp «. Powley, 1 M. & R. 38. 289; Tucker v. Crackliu, 2 Stark. 
 
 See also Dudley v. Smith, 1 Camp. 167 ; 385. 
 
 Briud v. Dale, 8 C. & P. 207; and 8 Ditcliam v. Chivis, 4 Bhig. 706. 
 Cairns v. Robius, 8 M. & W. 258; 10 « Woodward ». Booth, 7 B. & C. 
 
 L. J. Exch. 452. 301 ; St. Louis, &c. R. R. Co. v. 
 
 1 Ante, p. 629. Thomas, 47 111. 116. 
 
ACTIONS AGAINST AND BY CARRIERS. 637 
 
 all actions on simple contract, except as hereinafter excepted, 
 the plea of non assumpsit, or a plea traversing the contract or 
 agreement alleged in the declaration, shall operate only as a 
 denial of the express contract, promise, or agreement alleged, 
 or of the matters of fact from which the contract, promise, or 
 agreement alleged may be implied by law ; ex. gr. : — 
 
 " In actions against carriers and other bailees for not deliv- 
 ering, or not keeping goods safe, or not returning them on 
 request, such plea will operate as a denial of any express or 
 implied contract to the effect alleged in the declaration, but 
 not of the breach." 1 The 16th rule declares that " in actions 
 for torts the plea of not guilty shall operate as a denial only 
 of the breach of duty, or wrongful act alleged to have been 
 committed by the defendant, and not of the facts stated by 
 the inducement ; and no other defence than such denial shall 
 be admissible under that plea. All other pleas in denial shall 
 take issue on some particular matter of fact alleged in the 
 declaration, ex. gr. : — 
 
 Sec. 640. Plea of Not Guilty. — " In actions against a 
 carrier, the plea of not guilty will operate as a denial of the 
 loss or damage, but not of the receipt of the goods by the 
 defendant as a carrier for hire, or of the purpose for which 
 they were received." In Webb v. Page, 2 which was an action 
 for negligence against a carrier, it was held that it was not 
 competent to him, under not guilty, to set up as a defence that 
 the plaintiff misrepresented the weight of the goods which the 
 defendant agreed to carry, the plea operating only as a denial 
 of the loss or damage, and not of the receipt of the goods by 
 the defendant, who ought either to plead the misrepresentation 
 specially, or traverse the acceptance of the goods for the pur- 
 pose of being carried. 
 
 Sec. 641. Rule in Wyia v. Piokford. — The holdings in 
 the case of Wyld v. Pickford 3 throw some light on this sub- 
 
 1 Reg. Gen. Q. B. C. P. and Ixch. 2 1 Scott, N. R. 971 ; 6 M. & G. 
 
 T. T. 16 Vict. r. 6; 1 El. & Bl. App. 196; 1 D. & L. 531. See Hoyt v. 
 
 lxxix. ; M'Connico v. Stallworth, 43 Allen, 2 Hill (N. Y.), 322. 
 Ala. 389 ; M'Gavook v. Puryear, 6 8 8 M. & W. 443. 
 Coldw. (Tenn.) 34. 
 
638 THE LAW OP CARRIERS. 
 
 ject. The defendants were carriers, and one of the counts in 
 the declaration stated delivery to them of a case containing 
 maps to be carried, and alleged a receipt by them, whereby it 
 became their duty to take due and proper care, but that they 
 did not take due and proper care of them, whereby the maps 
 were lost. A second count was in trover. Plea, to the first 
 count, that, at the delivery of the case and its contents, the 
 defendants were common carriers for hire, and gave notice to 
 the plaintiff, who had notice and knowledge that they would 
 not be responsible for the loss of or damage done to goods and 
 chattels delivered to them for the purpose of carriage, and 
 maps in packages, or otherwise, unless the same were insured 
 according to their value, and paid for at the time of their 
 delivery ; that they received the case and maps to be carried 
 upon the terms and conditions of the notice, and upon no 
 other terms whatsoever, of which the plaintiff at the delivery 
 had notice ; and that the maps were not, at the delivery, in- 
 sured according to their value, or paid for. To the count in 
 trover there was a similar plea, alleging the conversion to have 
 been by a misdelivery through a mistake and inadvertence. 
 It was held, first, that the action being founded on a breach of 
 duty ex contractu, the allegation in plea of a special contract 
 was sufficient, and that, as the defendants accepted the goods 
 only on the terms of the notice, a special averment of the 
 plaintiff's consent was unnecessary; secondly, that the plea 
 was not an argumentative traverse of the facts in the declara- 
 tion, from which the breach of duty was implied; thirdly, 
 that, as the declaration might apply to any kind of negligence, 
 it was not necessary to allege in the plea that the loss was 
 occasioned by such negligence as the defendants were not 
 responsible for ; and that, if they had committed negligence 
 for which they were liable, notwithstanding their notice, the 
 plaintiff should have new assigned it ; fourthly, that the plea 
 to the count in trover could not be supported, inasmuch as it 
 admitted a conversion by inadvertent delivery, and did not 
 show that the inadvertence was such as was protected by the 
 notice. 
 
 SEC. 642. Common-Law Procedure Act, 1852. — Misleading 
 
ACTIONS AGAINST AND BY CAEEIERS. 639 
 
 Clause. — As to the general issue it may be well to notice a 
 section of the " Gonnnon-Law Procedure Act, 1852," 1 which, 
 as a learned author remarks, is calculated to mislead. 2 
 
 The 74th section of that act, after reciting that " certain 
 causes of action may be considered to partake of the character 
 both of breaches of contract and of wrongs," that " doubts 
 may arise as to the form of pleas in such actions," and that 
 " it is expedient to preclude such doubts," goes on to enact 
 that " any plea which shall be good in substance shall not be 
 ; objectionable on the ground of its treating the declaration 
 either as framed for a breach of contract or for a wrong." 
 " It may naturally be inferred from this language," remarks 
 the same writer, "that if an action be brought against a 
 carrier for the loss of a parcel, and the declaration be so 
 framed as not clearly to show whether the plaintiff is com- 
 plaining of a breach of contract or of a tort, the defendant 
 will be equally safe in pleading non assumpsit, or not guilty, 
 and that the pleas, though differing in form, will be regarded 
 as substantially setting up the same defence. The fact, how- 
 ever, is quite otherwise, for while the plea of non assumpsit 
 will put in issue the promise and admit the breach, the plea of 
 not guilty will admit the bailment and deny the breach. This 
 is obviously a result never contemplated by the framer of the 
 clause in question." 3 
 
 Sec. 643. What may be proved under General Issue. — So 
 we see that, in an action on contract against a carrier for 
 negligence in conveying the goods, the defendant may prove 
 under the general issue that the goods were received by him 
 on an express condition that the plaintiff should accompany 
 them for the purpose of protection, and that he neglected to 
 do so, in consequence of which the goods were lost ; because 
 such evidence, showing that the promise was conditional, goes 
 to negative the unqualified promise alleged in the declaration. 4 
 
 1 15 & 16 Vict. c. 76, § U. v. Page, 6 M. & J. 202. See also 
 
 2 Taylor on Evidence, 5tli ed., Mounsey v. Perrott, 2 Exch. 522; 
 p. 321, vol. i. Nash v. Breeze, 11 M. & W. 352 ; 
 
 8 Ibid. vol. i. § 283. Whitaker v. Mason, 2 Bing. N. C. 
 
 * Brind v. Dale, 2 M. & W. 775, 359 ; Wade v. Simeon, 2 C. B. 548, 
 recognized by Tindal, C. J., in Webb 561. 
 
640 THE LAW OP CARRIERS. 
 
 Under non assumpsit the defendant cannot raise a defence 
 under the Carriers' Act. Thus, in an action against a carrier 
 for the loss of a parcel of more than 101. value, it was held 
 that, in order to avail himself of the want of notice of value, 
 he must plead it specially. 1 
 
 SEC. 644. — What may amount to General Issue. — It is, 
 however, to be remembered that a plea which does not consist 
 of matter of excuse may amount to the general issue without 
 the use of the formal words, " not guilty." In Elwell v. The 
 Grand Junction Railway Company, 2 the declaration was in 
 case for the loss of goods delivered to the company as common 
 carriers, to be safely and securely carried and conveyed. The 
 defendants pleaded that at the time of such delivery the 
 plaintiff became and was a passenger by the railway, and that 
 the goods were delivered to be conveyed with him as such 
 passenger, and that no part thereof was an article of clothing 
 of the plaintiff. To this plea there was a replication de 
 injurid. On special demurrer it was held that the replication 
 was ill, as the plea did not consist of matter of excuse, but 
 amounted to the general issue, being an argumentative trav- 
 erse, that goods were delivered to the defendants as common 
 carriers. Where a declaration alleged that the defendants 
 were common carriers of passengers from Southampton to 
 Gibraltar, a place beyond the seas, a plea that they were not 
 common carriers of passengers only puts in issue the fact of 
 the defendants carrying passengers from Southampton to 
 Gibraltar for hire, and not whether they were common carriers 
 in the strict technical sense of the term, and liable as such 
 accordingly to the custom of England. 3 
 
 Sec. 645. What amounts to Argumentative Traverse of Bail- 
 ment. — Again, where a declaration alleged that the defendants 
 were common carriers of goods for hire, and that the plaintiff 
 delivered to them as such common carriers a package to be 
 
 1 Syms v. Chaplin, 5 D. P. C. 429 ; 2 5 M. & W. 669 ; 8 D. P. C 
 
 5 A. & E. 634. This case was decided 225. 
 
 prior to Hilary Term 1853; but the 3 Bennett v. Peninsular & Oriental 
 
 new Rules do not alter the law as to Steamboat Co., 6 D. & L. 387; 6 
 
 carriers. See Levene v. Great West- C. B. 775 ; 18 L. J. C P. 85. 
 em Rail. Co., 18 L. T. n. s. 295. 
 
ACTIONS AGAINST AND BY CARRIERS. 641 
 
 carried by them to the Buston Station, and there to be safely 
 and securely kept by them for the plaintiff, and that it became 
 the duty of the defendants safely and securely to carry and 
 keep the package ; breach, that the defendants did not safely 
 and securely carry the same, but that through their negligence 
 it was lost. It was pleaded that the defendants gave notice 
 to the plaintiff that they would not carry any package contain- 
 ing several packages, addressed to and intended for several 
 parties, unless the addresses and contents of the enclosed 
 packages were declared, and that they would not be responsi- 
 ble for such packages unless such declaration wer6 made that 
 each of the packages in question contained several parcels 
 addressed to and intended for different parties, and that the 
 addresses and contents of the enclosed parcels were declared. 
 On demurrer it was held that the plea amounted to an argu- 
 mentative traverse of the bailment stated in the declaration. 1 
 
 Sec. 646. Admission of Allegation. — In Benson v. Davison, 2 
 the declaration was in assumpsit, and stated that the defend- 
 ants were the owners of a vessel lying in a certain river, and 
 bound to Liverpool ; that the plaintiff caused to be shipped on 
 board her a quantity of potatoes, to be safely carried by the 
 defendants, as' owners of the said vessel, to Liverpool, and in 
 consideration thereof, and of certain freight, the defendants 
 promised the plaintiff to take proper care of, and safely ca: - ry 
 the said goods as aforesaid, with a breach that through the 
 defendants' negligence they were damaged. The defendants 
 pleaded non assumpserunt, and it was held that the ownership 
 of the defendants was not admitted by the plea ; Parke, B., 
 remarking : " It is not necessary to say more than this as to 
 the effect of an admission on the record, that, at all events, 
 the taking issue on one fact averred in the declaration is only 
 an admission of the other material averments necessary to be 
 proved. Taking it that here there is an admission of the 
 material allegations, there is no admission of the allegation of 
 ownership, because that is perfectly immaterial. The declara- 
 
 1 Crouch v. London & North-Western Rail. Co.,- 7 Exch. 705 ; 21 L. J. 
 Exch. 207. 
 
 2 3M. &W. 179; 1 H. & H. 46. 
 
 41 
 
642 THE LAW OP CARRIERS. 
 
 tion would be good if that, as well as the other allegations, 
 that the defendant received the goods to be safely carried as 
 aforesaid, were struck out ; the statement that, in considera- 
 tion that the defendants had shipped goods on board the 
 vessel, and of the freight, the defendants promised safely to 
 carry them, is quite sufficient, coupled with the allegation that 
 the goods were not safely carried, to make a complete case of 
 liability against the defendants. The admission on the record, 
 then, being only an admission of material averments, not of 
 all immaterial statements which the pleader chooses to intro- 
 duce, there is no admission here that the defendants were 
 owners, so as to raise the inference that the # captain was their 
 agent. The fact in issue upon the plea of non assumpserunt 
 is, whether any such contract as alleged was made ; and the 
 plaintiff must prove that it was, by showing that the defend- 
 ants made it themselves, or, if the captain made it, that he 
 was their agent." 
 
 To a declaration on a contract by a bill of lading, by a 
 master of a vessel, to convey goods from Dublin to London, 
 and to deliver the same at the port of London, to the plain- 
 tiff or his assigns, a plea that, after the arrival of the vessel 
 at London, the defendant caused the goods to be deposited on 
 a wharf, being a place where goods from Dublin were accus- 
 tomed to be landed, and fit and proper for such purposes, and 
 that before a reasonable time for delivery elapsed they were 
 destroyed by fire, which broke out there by accident, was held 
 ill. The defendants were to be regarded as responsible, both 
 for taking care of the goods at the wharf and for carrying the 
 goods from the wharf ; inasmuch as both these duties formed 
 a part of the same express contract, and are paid for by the 
 same reward, and the master, during the whole of the time 
 while the goods are in his possession, is under the obligation 
 of a common carrier. It is, therefore, to be concluded as cer- 
 tain, that such a plea would be no answer to the loss of the 
 goods by fire at the wharf ; a common carrier being liable for 
 every loss except those arising from the act of God and the 
 public enemy. 1 
 
 1 Gatliffe v. Bourne, 4 Bing. N. C. 314. 
 
ACTIONS AGAINST AND BY CARRIERS. 643 
 
 Sec. 647. inevitable Accident. - — Where an inevitable acci- 
 dent would be an excuse, and a railway company relies upon 
 it as a defence, all the facts which, in the contention of the 
 company, constitute such inevitable accident, must be brought 
 out. 1 In one case a passenger by a railway, as to which notice 
 had been given that no merchandise would be carried as lug- 
 gage, but must be paid for, took a box of merchandise with 
 him as luggage, and after a guard had, in the course of the 
 journey, demanded and taken away the box, with the purpose 
 of carrying it separately, from the passenger, but without de- 
 manding an extra rate, it was stolen by some of the company's 
 servants. The passenger sued the company, and alleged that 
 the company undertook to carry safely, and that by reason of 
 gross neglect it was lost. The defendants pleaded that the 
 case contained merchandise, and that the passenger had not 
 paid for it as such, though he knew the rule. The replication 
 was, that the box manifestly contained merchandise, and yet 
 was received as luggage. It was held that, assuming the 
 declaration showed a good cause of action in tort, the plea 
 answered it. 2 
 
 Sec. 648. Replications. — In the same case the replication 
 which we have set forth above was held to be bad for not' 
 averring that the company had notice that the box contained 
 merchandise, 2 which brings us by an easy transition to another 
 matter, which must be considered in connection with the sub- 
 ject of pleading, and concerning which we shall say very little 
 in this place. In the case of Butt v. The Great Western Rail- 
 way Company, 3 which was an action against the defendant 
 company for the loss of a package intrusted to them to carry, 
 subject to the terms of a special notice by the company not to 
 be responsible for articles of certain descriptions, or of a cer- 
 tain value, unless entered and paid for accordingly, the dec- 
 laration alleging a loss arising from gross negligence of the 
 company, and the felonious acts of their servants, the com- 
 
 1 Bums v. Cork & Bandon Bail. Keys, 9 W. B. 793; 4 L. T. n. s. 
 
 Co., 13 Ir. 0. L. B. 543 Exch.; Evans 841 ; 9 H. L. Cas. 556 ; 8 Jur. N. s. 
 
 v. Hutton, 4 M. & G. 954. 367. 
 
 2 Belfast & Ballymena Bail. Co. v. 3 11 C. B. 140 ; 20 L. J. C. P. 241. 
 
644 THE LAW OF CAREIER9. 
 
 pany pleaded (except as to so much of the declaration as 
 alleged that the loss arose from the gross negligence of the 
 company, and the felonious acts of their servants), that the 
 goods were within the description, and of the value mentioned 
 in the notice, and that their nature and value Were not de- 
 clared at the time of their delivery to the company. The 
 plaintiff newly assigned that he issued his writ and declara- 
 tion thereupon ; for that, while the goods were in the custody 
 and possession of the company as common carriers, they were 
 feloniously stolen by certain servants of the company un- 
 known to the plaintiff. In this case it was held that the new 
 assignment was bad, as applying to a portion of the declara- 
 tion to which the plea was not addressed, and further, that 
 the replication of felony by the company's servants only, with- 
 out alleging gross negligence upon the part of the company, 
 would have been bad. 
 
 In another case, to a declaration against carriers for the 
 loss of a trunk, containing articles of jewelry and female 
 apparel, they pleaded, as to articles of jewelry, one of the 
 dresses, &c, that the goods consisted of articles and property 
 of the descriptions following, or of some or one of such de- 
 scriptions, that is to say, gold or silver in a manufactured or 
 unmanufactured state, <fec. (enumerating the several articles 
 mentioned in the Carriers' Act, 11 Geo. IV. and 1 Will. IV. c. 
 68), and that their value exceeded 10Z. ; that, at the time of 
 the receipt of the goods by them, they had only affixed the 
 notice required by section 2 ; and that the plaintiff gave them 
 no notice of the nature or value of the goods, nor did she 
 pay or tender the increased rate of charge demandable under 
 the act. Upon special demurrer, it was held that the plea 
 was bad for not alleging with certainty that the articles in 
 question were of some one of the descriptions mentioned in 
 the act; Wilde, C. J., remarking that "it was too uncertain," 
 and that " it ought to have been more specific." 1 
 
 Sec. 649. Evidence. — Whether the action be founded in 
 tort or assumpsit, it is necessary, in an action against a car- 
 rier, to prove three things : 1st. A contract implied or ex- 
 1 Smith v. London, Brighton, & South Coast Rail. Co., 7 C. B. 782. 
 
ACTIONS AGAINST AND BY CARRIERS. 645 
 
 pressed ; 2d. The delivery of the goods to the carrier ; and 
 3d. The defendant's breach of duty or promise. Of these, 
 then, in their order. So much has already been incidentally 
 said upon this subject, that a full explanation would only be a 
 recapitulation. As that is to be avoided, we may say shortly 
 that, when it appears in evidence that the defendant is a com- 
 mon carrier, the plaintiff will generally rely upon an implied 
 promise ; for, as we have seen in the case of common carriers, 
 the law makes the implication perfectly definite and specific 
 by the duties and liabilities it imposes, and the restrictions 
 and limitations it allows. 
 
 Sec. 650. Evidence of Occupation as Common Carrier. — 
 Terms of Contract. — Implied Contract. — We have already 
 considered what evidence proves a man to be a common car- 
 rier, in answering the question who are to be regarded as 
 such. 1 Where, however, the defendant is not a common 
 carrier, it is of course necessary to prove what the terms of 
 the contract by which he undertook to carry were. 2 By that 
 contract his duties and liabilities are to be determined. Even 
 although he may not be a common carrier, the contract may 
 be implied only and not expressed, in which case it is neces- 
 sary to prove the circumstances from which the implication 
 of the contract arises, and circumstances which will indicate, 
 as nearly as possible, the precise nature of the contract thus 
 understood. Thus, where A., by parol, made arrangement 
 with a railway company to convey cattle for him to K. station, 
 and he, at the same time, without noticing its contents, signed 
 a consignment note, by which the cattle were directed to be 
 
 1 Brind v. Dale, 2 M. & Rob. 80; tion Co. v. Wood, 3 Esp. 127; Goff v. 
 
 8 C. & P. 207; Palmer o. Grand Clinkard, 1 Wils. 282; Maving v. 
 
 Junction Rail. Co., 4 M. & W. 744; Todd, 1 Stark. 72; Ansell v. Water- 
 
 Ingate v. Christie, 3 C. & K. 61 ; house, 2 Chit. 1 ; Barton v. Hanson, 
 
 Walker v. Jackson, 10 M. & W. 161 ; 2 Taunt. 49 ; Wayland v. Elkins, Holt, 
 
 Willoughby ». Horridge, 12 C. B. 751; 227; Smith v. Taylor, 2 Chit. 142; 
 
 Oxlade ». North-Eastern Rail. Co., 9 Fremont v. Coupland, 9 Moore, 319; 
 
 W.R. 272; Rosst). Hill, 2 C. B. 877; Helsby o. Mears, 8 D. & R. 289; 
 
 White v. Humphrey, 11 Q. B. 43 ; Wooley v. Batte, 2 C. & P. 417- 
 Dale v. Hall, 1 Wils. 28 ; Whalley v. 2 See M'Millan v. Michigan South- 
 
 Wray, 3 Esp. 74 ; Richardson v. era Rail. Co., 15 Mich. 79. 
 Sewell, 2 Smith, 205 ; Trent Naviga- 
 
646 THE LAW OP CARRIERS. 
 
 taken to E., an intermediate station on the line to K., it was 
 held that the parol evidence was admissible to show that the 
 company agreed to carry on the cattle to K., as it did not 
 contradict, but only supplemented the written contract. 1 .In 
 Thompson v. Travis, 2 which was an action against the defend- 
 ant, a carrier, for negligence in the conveyance of goods by 
 water, whereby they were wetted and spoiled, it appeared that 
 the goods were put on board under one entire contract, for 
 their conveyance from Boston to Leeds ; one half to be de- 
 livered there, the other to be conveyed and delivered at Brad- 
 ford. At the trial, the plaintiff proved the contract and its 
 execution by oral testimony ; but it appeared from the exam- 
 ination of one of the witnesses, that, at the time of the receipt 
 of the goods by the carrier, two notes were delivered by him 
 to the plaintiff (each applying to a moiety of the goods), which 
 ascertained the destination of the goods, and the terms upon 
 which they were to be carried. Only one of these was pro- 
 duced at the trial, and the absence of the other was not 
 satisfactorily accounted for ; it was held that that was ground 
 for a nonsuit. It is not, as we have already seen, neces- 
 sary to aver or prove a readiness to pay the hire unless it be 
 traversed. 3 
 
 Sec. 651. Of Delivery to Defendant. — The acceptance of 
 goods by a carrier, for the purpose of forwarding them at 
 once, raises his responsibility with regard to them, and it 
 is not necessary, when the question as to whether he was 
 responsible or not arises, to prove any special agreement as to 
 reward. With regard to this question, also, much has been 
 anticipated. However, we may add in this place that, in an 
 action against a carrier, it will be sufficient to prove delivery 
 to a duly authorized agent ; thus, in one case — an action for 
 the loss of a parcel — it was held to be sufficient to bind the 
 
 1 Malpas v. Loudon & South- West- Woodward v. Booth, 7 B. & C. 301 ; 
 era Rail. Co., 1 L. B. 0. P. 336; 35 Detcham v. Chivis, 1 M. & P. 735 ; 
 L. J. C. P. 166 ; 1 H. & B. 227. 4 Bing. 706 ; Beckford v. Crutwell, 1 
 
 2 8 Soott, 85. See also, as to the M. & B. 187 ; 5 C. & P. 242. 
 evidence of ownership and contract, 8 Wyld v. Pickford, 8 M. & W. 
 Barford v. Nelson, 1 B. & Aid. 571 ; 443. 
 
ACTIONS AGAINST AND BY CARRIERS. 647 
 
 owner of the coach to prove the delivery of the parcel to the 
 driver. 1 
 
 SEC. 652. Delivery on Wharf to Officer. — So a delivery of 
 goods on the wharf to some officer accredited for that purpose, 
 as to the mate, will bind the ship-owner. 2 If the master of 
 a ship receives goods at the quay or beach, or sends his boat 
 for them, the receipt of the goods at once makes the ship- 
 owner responsible. 3 This presumption, however, may be dis- 
 proved by the proof that the owner of the goods did not 
 intend to trust the owner of the ship with the custody, which 
 will be inferred from the fact that he sent his own servant 
 along with the goods, and placed him in charge of them. 4 In 
 one case the only proof of delivery was that the goods had 
 been left at the yard of the inn at which the defendant and 
 other carriers were in the habit of putting up, and that was 
 held to be insufficient. 5 And in a case somewhat analogous 
 to that just referred to, it appeared in evidence that goods had 
 been left piled up on a wharf amongst other goods, but that 
 no communication had been made to any one ; it was held 
 that such evidence was not sufficient to prove constructive 
 delivery to the wharfinger. 6 In an American case already 
 referred to, 7 where it appeared that the goods were delivered 
 to an express forwarder, and that he delivered them over to a 
 steamboat company, who acted as common carriers, to be 
 transported, this evidence was held to support an action 
 brought directly against the latter, with whom the contract 
 was to be deemed to have been made through the agency of 
 the express forwarder, the contract with the steamboat com- 
 pany being ratified by the owner of the goods, by his bringing 
 an action against them. 8 
 
 1 Williams v. Cranston, 2 Stark. 82 ; 4 East India Co. v. Pullen, 1 Stra. 
 Citizens' Bank v. Nantucket Steam- 690. 
 
 boat Co., 2 Story (II. S. C. C), 16. 6 Selway v. Holloway, 1 Ld. Eaym. 
 
 2 Coblan u. Downe, 5 Esp.41; Brit- 46. 
 
 ish Columbia, &c. Co. v. Nettleship, 6 Buokman v. Levi, 3 Camp. 414. 
 3 L. R. C. P. 499. •> Ante, p. 507. 
 
 8 Abbott on Ship., 10th ed., p. 258 ; 8 New Jersey Steam Navigation Co. 
 citing Molloy, b. 2, o. 2, § 2. v. Merchants' Bank, 6 How. (U. S.) 
 
 344. 
 
648 THE LAW OP CARRIERS. 
 
 SEC. 653. Ordinary Course of Business. — Where the ordi- 
 nary course of business at a railway office was to accept 
 goods, with a special limitation of liability in writing, and 
 this was known to the plaintiff, who nevertheless caused his 
 goods to be left with a railway porter at the station, without 
 complying with the regular course, and the porter received 
 them and they were lost, it was held that the company was 
 not liable as on contract, the delivery not being in due course, 
 and the porter not being shown to have, or to have professed 
 to havej power to contract with the plaintiff, otherwise than 
 in the ordinary course. 1 
 
 SEC. 654. Production of Books by Defendants. — It is 
 scarcely necessary to add, what must be very obvious, that 
 with a view to the proof of delivery, notice should be given 
 to the defendant to produce his book of entries and way-bill, 
 if any ; and the circumstances under which the box was de- 
 livered, as to the way in which it was packed, secured, and 
 addressed, may, in many cases, be of importance. Much, 
 however, in all such cases, must be left to the didactic nature 
 of the facts of the individual case. They, to any ordinary 
 intelligence, are not without guidance as to the method by 
 which it will be most expedient to deal with them. 2 
 
 Sec. 655. Proof of Loss. — In the case of Cullen v. M' Al- 
 pine, 3 to which we have already had occasion to refer, which 
 was an action against the master of a ship for not safely con- 
 veying goods to a foreign port, evidence that the goods were 
 seized in another foreign port by the government, coupled 
 with a letter of the defendant's, in which he acknowledged 
 that he was accountable for the goods, was held sufficient 
 evidence to warrant the jury in finding for the plaintiff with- 
 out further proof of the cause of seizure. In the case of May- 
 hew v. Nelson, 4 in which the question was whether hat bodies, 
 which are made partly of the soft substance taken from the 
 
 1 Slim !». Great Northern Bail. Co., 8 2 Stark. 553. 
 
 14 C. B. 647 ; 23 L. J. C. P. 166. * 5 C. & P. 58. See also Tomp- 
 
 2 As to receipts given at the time kins v. Saltmarsh, 14 S. & B. (Penn.) 
 of delivery, see M'Cotter v. Hooker, 275 ; Beardslee v. Richardson, 11 
 8 N. Y. 497 ; Sandford v. Housatonic, Wend. (N. Y.) 25. 
 
 11 Cush. (Mass.) 155. 
 
ACTIONS AGAINST AND BY CARRIERS. 649 
 
 skin of rabbits and partly from the wool of sheep, came under 
 the description of furs in the Carriers' Act (11 Geo. IV. and 
 1 Will. IV. c. 68), it was proved that inquiry had been made of 
 the* coachman, the servant of the defendants, as to what had 
 become of the parcel, for the loss of which the action was 
 brought, and his reply was "that he understood it had been 
 lost. This answer was held by Tindal 5 C. J., to be evidence. 
 SEC. 656. General Rule as to the Admissibility of Servants' 
 Evidence. — The general rule as to the admissibility of the 
 evidence of agents and servants is, however, that it should be 
 excluded. Any person who has a direct interest in the event 
 of the suit is apt to be to some extent corrupted by such 
 interest, and Male verum examinat omnis corruptis judex. The 
 law upon this matter is clearly stated in Mr. Starkie's work 
 upon Evidence. " So where," he remarks, after speaking of 
 the right to share or liability to contribute, "the issue in- 
 volved any breach of duty or default in respect of which the 
 witness would be liable over to the party calling him. Such 
 a witness, for whichever party called, was obviously interested 
 in protecting himself against the consequence of failure by 
 procuring a verdict to pass for the party that called him. 
 Although guilty of misconduct, the record would conclusively 
 show that the party calling him had received no prejudice so 
 far as that cause was concerned. If called for the defendant, 
 he would also be interested in obtaining a verdict for him, and 
 to exclude a record which would be evidence against himself 
 as to the amount of consequential damage in an action after- 
 wards brought against him by his party." Where the party 
 employed was the actual agent who transacted the business of 
 the principal, he was competent on the score of necessity ; 1 
 but although an agent who actually executed the business of 
 the principal was in all cases competent to prove that he acted 
 according to the directions of his principal on the ground of 
 necessity, and because the principal could never maintain an 
 
 1 Adams v. Davis, 3 Esp. o. 48 ; P. 289 ; and see Ilderton v. Atkinson, 
 
 Matthews v. Haydon, 2 Esp. c. 509 ; 7 T. B. 480 ; Evans v. Williams, 7 T. 
 
 Spencer v. Goulding, Peake's C. 129 ; B,. 481, n. ; Theobald v. Treggott, 
 
 Barker v. Macrae, 3 Camp. 144 ; R. N. 11 Mod. 261. 
 
650 THE LAW OF CARRIERS. 
 
 action against his agent for acting, according to his own direc- 
 tions, whatever might be the result of the cause, 1 yet, if the 
 cause depended upon the question whether the agent had been 
 guilty of some tortious act, or some negligence in the course 
 of executing the orders of the principal, and in respect of 
 which he would be liable over to the principal if he failed in 
 his action, the agent was not competent without a release. 2 
 
 SEC. 657. Rule in Hawkins v. Finlayson. — So in the Case of 
 Hawkins v. Finlayson, 3 which was an action against the cap- 
 tain and owner of a steam vessel for an injury resulting from 
 the improper management of the vessel, it was decided that if 
 it appear that the pilot had the control, such pilot is not a 
 competent witness for the defendant, although the defendant 
 himself was on board at the time; and in another case, a 
 guard, who was implicated in a. like mismanagement of a 
 stage-coach, was held an incompetent witness in an action 
 against the proprietor. 4 
 
 Sec. 658. Burden of Proof. — As to the burden of proof, it 
 will, of course, in most cases lie on the plaintiff, although this 
 rule may seem in contravention of that which declares the 
 inexpediency of demanding proof of a negative. 5 This latter 
 rule is founded upon the wisdom of experience, but at the 
 same time it admits of many and great exceptions. Thus, in 
 the case of carriers, where an action is brought for the non- 
 delivery or loss of goods, the plaintiff must give some proof 
 of his allegation. 6 Under some circumstances, however, the 
 law removes the burden of proof from the plaintiff to the 
 defendant by a presumption against the carrier, and in favor 
 of the person who deals with him. Thus, if a public convey- 
 ance is overturned or breaks down without apparent cause, 
 
 1 Morish v. Eoote, 8 Taunt. 454. 4 Whitamore v. Waterhouse, 4 C. 
 See the observations of Mansfield, & P. 383 ; and see Movisli v. Poote, 2 
 C. J., in De Symonds v. De la Cour, Moore, 508 ; 8 Taunt. 454 ; Bailey v. 
 2 N. R. 374. Shaw, 24 N. H. 297 ; The Peytona, 2 
 
 2 Rother r. Elton, Peake's C. 84 ; Curt. (U. S. C. C.) 21. 
 
 Miller «. Falconer, 1 Camp. 251 ; 6 Baltimore, &e. R. R. Co. v. Schu- 
 
 Starkie on Evidence, 4th ed., p. 121. macher, 29 Md. 168. 
 
 8 3 C. & P. 305. See also Green 6 Tucker v. Cracklin, 2 Stark, 
 
 v. The New River Co., 4 T. R. 589. 385. 
 
ACTIONS AGAINST AND BY CABRIEES. 651 
 
 the law implies negligence, and consequently it falls upon the 
 owners to rebut this presumption. 1 A loss, too, by private 
 theft is presumptive evidence of ordinary neglect. 2 
 
 SECi 659. In Action against Common Carrier. — Proof in 
 "Assumpsit" and in "Case." — Where the action is brought 
 against a common carrier, the burden of proof is upon him 
 to show, if he can, that the loss was occasioned by the act of 
 God or of the Queen's enemies. 3 The evidence, where the 
 action is in case, differs from that which is necessary when 
 it is in assumpsit. In the latter it is sufficient to prove de- 
 livery, 1 or, at most, a very meagre proof of loss, as proof that 
 the goods were not in the parcel at the time that it was 
 delivered to the consignee, 5 or that he or his agents have 
 heard nothing of them, 6 will suffice ; in the former it is 
 necessary to show that the. property did not safely reach its 
 destination. 
 
 Sec. 660. Non-delivery within Reasonable Time, Proof of. — 
 In case the action is in assumpsit, the proof may also be of non- 
 delivery within a reasonable time. 7 In the case of Hawkes v. 
 Smith, 8 in which it appeared that 69 tons of bones were put on 
 board the plaintiff's vessel, and that at the end of the voyage 
 there were not 69 tons, but a much smaller weight, Rolpe, B., 
 
 1 Christie v. Griggs, 2 Camp. 79 ; Cleveland, 1 Newb. (U. S.) 221 
 and see M'Kinney v. Neil, 1 M'Leaa Turner v. The Black Warrior, 1 M'All, 
 (U. S.), 540 ; Stokes v. Saltonstall, 13 (U. S.) 181; Bearse v. Ropes, Sprague 
 Pet. (U. S.) 181. See also U. S. Act (TJ. S.), 331 ; The Emma Johnson, 
 of July 7, 1838, § 313; 5 Stat, at Sprague (U. S.), 527; Nelson » 
 Large, 306 ; The New "World v. King, Woodruff, 1 Black (U. S.), 156, 160 
 16 How. (U. S.) 469; Leveriog v. King v. Shepherd, 3 Story (U. S. C 
 Union Transportation, &c. Co., 42 C), 349. 
 Mo. 88. * Tucker v. Cracklin, 2 Stark. 385 
 
 2 Jones on Bailm. 38, 40, 66, 77, Day v. Ridley, 16 Vt. 48. 
 109; but see Story on Bailm. § 39; 6 Crouch v. London & North- West- 
 and see Mackenzie v. Cox, 9 C. P. ern Rail. Co , 2 C. & K. 789. See 
 632. See also Mobile, &c. R. R. Co. Woodbury v. Prink, 14 111. 279 
 v. Jarvoe, 41 Ala. 644. M'Questen v. Sanford, 40 Me. 117. 
 
 8 The Martha, Olc. (U. S.) 140; 6 Griffiths v. Lee, 1 C. & P. 110 
 
 Merriman w. The May Queen, 1 Newb. 1 Sm. L. Ca. 103. 
 (U. S.) 464; Soule v. Rodocanachi, 1 ' Raphael v. Pickford, 5 M. & G. 
 
 Newb. (U. S.) 504 ; Clark v. Barnwell, 551 ; Pickford v. Grand Junction Bail. 
 
 12 How. (TJ. S.) 272 ; Rich v. Lam- Co., 12 M. & W. 766. 
 bert, 12 How. (TJ. S.) 347 ; Hunt v. » 1 C. & M. 72. 
 
652 THE LAW OF CABRIERS. 
 
 said : " I think this is evidence from which the jury may infer 
 negligence, and that if there is no negligence on the part of 
 the defendant, he should show that." That action was in 
 assumpsit. But in the case of Gilbert v. Dale, 1 it was held 
 that, in an action on the case against a booking-office keeper 
 for the loss of a parcel by negligence, it was not sufficient 
 evidence of negligence to show that the parcel was delivered 
 to the defendant, and that it had not reached its destination. 
 In that case Patteson, J., remarked : " Let us look at what 
 the contract with the defendant is. The defendant is not a 
 carrier ; he is the keeper of a booking-office, and his contract 
 with the plaintiff is to take care of those goods left with him, 
 that they may be forwarded to their destination, either by 
 coach or by some carrier ; in other words, his contract is to 
 deliver them to some carrier, in order that they may be for- 
 warded. Now the contract of a carrier is to deliver to the 
 consignee, and Griffiths v. Lee 2 is very good authority to 
 show that the non-delivery to the consignee is sufficient evi- 
 dence of negligence against the carrier, for his contract is to 
 deliver the goods." 
 
 Sec. 661. Contracts. — This leads us to remark that 
 there are many cases in which common carriers limit or 
 qualify their liability and responsibility in relation to the 
 goods of their customers by notice, which notice may affect 
 the terms of the contract in various directions, as, for in- 
 stance, as to non-liability as an insurer, or as to non-liability 
 for articles above a certain value, or as to non-liability unless 
 the contents of packed parcels be made known, and the like. 
 Such notice may reduce the responsibility of the carrier (not a 
 railway or a canal carrier) from that which was imposed upon 
 him by the common law, if it is brought to the knowledge of 
 the person intrusting the goods to him, to that of a private 
 carrier for hire. 8 This point has been amply dwelt upon. 
 When that is the case, then the contract which is entered into 
 is not the same as that entered into in the case of a common 
 
 1 1 Nev. & P. 22. Cleveland, 1 Newb. (U. S. C. C.) 221 ; 
 
 2 1 0. & P. 110. Turner v. The Black Warrior, 1 M'All. 
 8 Merriman v. The May Queen, 1 (U. S. C. C.) 181. 
 
 Newb. (U. S. C. C.) 464; Hunt v. 
 
ACTIONS AGAINST AND BY CARRIERS. 653 
 
 carrier ; and in relation to the evidence which will be neces- 
 sary to support an action against a carrier thus trading with a 
 limited liability, it becomes necessary to consider, as in the 
 last case quoted, what that contract really is. As we have 
 seen that, in the case of a common carrier for hire, the law 
 does not presume negligence in case of loss of or injury to 
 the goods in his possession, it is evident that, in such a case, 
 the burden of proof will be upon the plaintiff, who would 
 recover. 1 At the same time, several burdens lie upon the 
 defendant, and these are, first, of proving that he had issued 
 such a general notice, and, secondly, that it had come to the 
 knowledge of the plaintiff, — these two with the view of show- 
 ing that his common carrierhood had been abandoned, by 
 consent, in relation to that individual transaction. 
 
 Sec. 662. As to Value of Lost Goods. — Presumptions are 
 most valuable things in law. They are as useful in law as 
 hypotheses are in science. In determining the value of the 
 goods lost or damaged, great difficulty might be expected to 
 arise. If an individual sent a box, the contents of which are 
 known only to himself, and that box is lost, it is evident that 
 his evidence, which would be the only direct evidence obtain- 
 able on the point, might, in many cases, be most unfairly preju- 
 dicial to the carrier, to whom the box had been bailed. The 
 law has to take for granted the existence of dishonest people, 
 and it is obvious that the owner of the box might, feeling him- 
 self protected from discovery by the ignorance of the defend- 
 ants, make a statement as to the value of the contents, far in 
 excess of the fact of value. 2 Such a fraud would do away 
 with all the advantages of the system, as it at present exists, 
 of insurance in connection with carriage, and with the legiti- 
 mate right which a proprietor of goods has to receive them 
 or their value, if the return of the specific goods is impos- 
 sible, at the end of the bailment. But the law has protected 
 carriers against this possible injustice by one of its presump- 
 
 1 Merriraau v. The May Queen, 1 2 As to evidence of amount of dam- 
 Newb. (U. S. C. C.) 464 ; Hunt v. age, see Eames v. Cavarock, 1 Newb. 
 Cleveland, 1 Newb. (U. S. C. C.) 221 ; (U. S. C. C.) 528. 
 Turner v. The Black Warrior, 1 M'All. 
 (U. S. C. C.) 187. 
 
654 THE LAW OP CARRIERS. 
 
 tions. It presumes that the owner of the goods will exag- 
 gerate their value, and therefore raises the legal probability 
 that he has made a demand in excess of his right, and makes 
 him clearly prove his demand by precise evidence. But, 
 under some circumstances, this might be a hardship to the 
 plaintiff, and if there were not some countervailing presump- 
 tion, it would inevitably become so. Thus, if the presumption 
 was always against the owner of the goods, dishonest carriers 
 would be tempted to act fraudulently, to profit by the advan- 
 tage they would gain by paying, on a low estimate, what was, 
 in fact, perhaps worth much more than had been allowed for it. 
 To guard against this, the law has said that this presumption 
 against the owner of the goods shall arise only where there 
 has been perfect good faith upon the part of the carrier. And 
 in case there is any evidence of fraud upon his part, the pre- 
 sumption shall be in favor of the accuracy of the plaintiff's 
 demand. 1 In this way alone can the minimum of injustice be 
 attained in such cases ; and that, it seems to us, is all that the 
 laws attempt to attain, or, at least, can possibly arrive at. In 
 the case of Butler v. Basing, 2 in which the amount of damages 
 to be paid to a plaintiff as proprietor of a box which had been 
 lost by the defendant, a stage-wagoner, was in question, Gar- 
 row, B., in summing up, said : " With regard to the amount 
 of damages in case a verdict passes for the plaintiff, it is right 
 that I should tell you that there is no distinct evidence as to 
 the contents of the box ; however, I should recommend you 
 not to pare down the amount of damages, because the articles 
 contained in it cannot be distinctly proved. It very often hap- 
 pens that persons, more especially those in the station in life in 
 which the plaintiff is, pack their own clothes, and in such cases 
 it must be always impossible to give evidence of the precise 
 contents of the boxes or portmanteaus. I should therefore 
 recommend you, if you find for the plaintiff, to give damages 
 proportioned to the value of the articles which, in your judg- 
 ment, you think the box might and did fairly contain." 3 
 
 1 See Clunnes ». Pezzay, 1 Camp. Abb. Adm. (U. S.) 188 ; Bailey v. 
 
 8 ; and Armory u. Delaraire, 1 Strange, Shaw, 24 N. H. 297. 
 
 505. See also Thompson v. Traves, 8 2 2 C. & P. 613. 
 
 Scott, 85. See also Manning v. Hoover, 8 See also 1 Bell's Commentaries, 
 
ACTIONS AGAINST AND BY CARRIERS. 655 
 
 SEC. 663. Disqualification of Witness. — It has been held 
 that the old rule, that interest in the result of the cause in the 
 record as an instrument of evidence would disqualify a person 
 from being a witness in a suit, 1 must from the necessity of the 
 case be excepted to in some cases, such as that which we have 
 just referred to. Indeed, as one writer observes, the rule has 
 become a pure matter of legal history. So that there is no 
 longer any reason to exclude the evidence of the owner as to 
 the contents of a box, if the result is guarded by the presump- 
 tion to which we have alluded above. 2 
 
 SEC. 664. Evidence for Carrier in Non Assumpsit. — We 
 have considered the evidence which is necessary to support a 
 claim against a carrier, but it is of some importance to say 
 what evidence it is necessary for a carrier to produce in non 
 assumpsit. Of course, in treating of the evidence which an 
 owner of goods must rely upon in an action against a carrier, 
 we have really at the same time, although indirectly, consid- 
 ered the evidence which will not support his claim, and the 
 evidence which will rebut certain presumptions at law. But 
 it seems expedient to collect one or two of the rules applicable 
 to this subject in one place and under one head. Thus, under 
 non assumpsit, the carrier may show that he is not a carrier, 
 that he neither expressly nor impliedly undertook to carry ; 
 but it is scarcely necessary to add that he cannot, under that 
 plea, prove delivery to the consignee, or otherwise traverse 
 the breach. 3 Again, where he pleads any defence under the 
 Carriers' Act, or other special matter, he must prove all his 
 substantial averments. 4 He is also entitled to give evidence 
 in reduction of damages. 
 
 6th ed., p. 164. See also as to pre- 2 14 & 15 Vict. c. 99, § 2. 
 
 sumption of good condition of goods 8 Reg. Gen. H. T. 16 Vict, 
 
 sent by owner, Terega v. Poppe, Abb. * Ibid. r. 8, 17. See Sanquer v. 
 
 Adm. (U. S.) 397; The Columbo, 3 London & South-Western Eail. Co., 16 
 
 Blatchf. (U. S.) 521. As to proof of C. B. 163. See Sedgwick on Damages, 
 
 condition, see Kerr v. The Norman, 1 4th ed., p. 402. See also Jackson v. 
 
 Newb. (U. S.) 525 ; Dill v. The South The Julia Smith, 6 M'Lean (U. S. C. 
 
 Carolina R. R. Co., 7 Rich. (S. C.)158. C), 404 : Jackson v. The Juliana, 1 
 
 1 See Starkie on Evid., 4th ed., p. Newb. (TJ. S.) Adm. 61 ; O'Connor v. 
 
 118; Best's Principles of Evid., 5th Foster, 10 "Watts (Penn.), 418 ; Ogden 
 
 ed., p. 199. v. Marshall, 8 N. Y. 340 ; Arthur v. 
 
656 THE LAW OF CARRIERS. 
 
 Sec. 665. Under General Issue. — A carrier, under the 
 general issue of not guilty, may rebut by evidence the loss 
 or damage, but cannot disprove the receipt of the goods. 1 
 Where negligence is the ground of the plaintiff's action, the 
 defendant may, under the general issue, prove any facts or 
 circumstances which will disprove the negligence. 2 But the 
 justification, by means of proving contributory negligence 
 upon the part of the plaintiff, cannot be shown under the gen- 
 eral issue, but must be specially pleaded. 3 Again, under not 
 guilty, a carrier may prove an actual or constructive delivery. 4 
 In an action against a railway company for negligence in for- 
 warding goods, where they lost a market, the declaration 
 alleged that the defendants were common carriers, and re- 
 ceived the goods in question, to be carried by them as such 
 common carriers for hire and reward, and the plea traversed 
 the averment that the defendants received the goods as com- 
 mon carriers ; this plea was held to be proved by evidence 
 that the defendants did not receive goods to be carried by 
 them as common carriers, unless the consignor signed a paper 
 of conditions which the court thought reasonable. 6 
 
 Sec. 666. Damages. — We come now to the consideration 
 of almost the last subject which it is necessary for us to con- 
 sider in relation to actions brought against carriers in relation 
 to their traffic in goods, and that is the measure of damages. 6 
 In all cases it is necessary to find some standard by which the 
 amount of damages to be paid is to be determined, and the 
 most obvious criterion is of course the amount of injury suf- 
 fered. But although this seems a very obvious conclusion, it 
 cannot be accepted in its entirety without much explanation. 
 Thus, in many cases, it would be difficult or almost impossible 
 to discover the actual amount of the injury sustained, either 
 by reason of a refusal to carry, or by the loss of goods by a 
 
 The Schooner Cassius, 2 Story (U. S.), son, 10 Exoh. 376; 23 L. J. Exch. 
 
 81 j The Flash, 1 Abb. Adm. (XI. S.) 308. 
 
 119, 4 Hyde o. Trent & Mersey Naviga- 
 
 1 Reg. Gen. H. T. 16 Viot. tion Co., 5 T. R. 389. 
 
 2 Carpue v. London & Brighton 6 Whiter. Great Western Rail. Co., 
 Rail. Co., 5 Q. B. 747. 2 C. B. n. s. 7 ; 26 L. J. C. P. 158. 
 
 8 Webb v. Page, 6 M. & G. 196 ; 6 See Pothier, Traite' des Obliga- 
 Great Northern Rail. Co. v. Harri- tions, pt. i. e. 2, § 159. 
 
ACTIONS AGAINST AND BY CARRIERS. 657 
 
 carrier after they have been placed in his care and keeping. 
 But we will speak of the question of damages in relation to 
 these two matters separately. 
 
 Sec. 667. Damages for refusing to carry. — When Nomi- 
 nal. — If a carrier refuses to carry goods that are brought to 
 him for the purpose of being carried, an action, we have seen, 
 will lie against him at the instance of the owner of the goods, 
 and the damages to be assessed will be regulated by the 
 amount of damages actually and necessarily incurred. 1 If the 
 freighter could not procure any other ship, the damages would 
 be measured by the injury suffered from having his cargo left 
 on his hands. But, as we shall have occasion to see, in con- 
 nection with the leading case upon this subject, the damages 
 suffered must be such as the contracting parties were led to 
 contemplate. 2 If another ship was procurable, the damages 
 would be measured by the increased rate of freight payable, 
 and if such freight was in fact less than that contracted for, 
 the damages would be merely nominal for breach of contract. 
 In such a case the plaintiff has really little to complain of. 
 
 Sec. 668. Injuries must be Direct Consequences of Breach. 
 — In all cases, however, it is to be remembered the injuries 
 complained of must be the necessary and immediate conse- 
 quences of the breach. It is constantly the custom of people 
 to ascribe stupendous results to some very insignificant cir- 
 cumstance. As a long line of kings may come from a puny 
 progenitor, so the loss of a certain market might lead to re- 
 sults which would only terminate in the ruin of a family or 
 a trade. No one can compute the consequences of any one 
 event. The remote consequences of some trivial circumstance 
 may be catastrophic. But, as that is the case, the law has 
 very properly limited the damages done, which are to form 
 the standard of the measure of damages to be paid, to those 
 which necessarily and immediately arise from the breach. 3 
 
 1 Hunter v. Pry, 2 B. & A. 421, 2 Hadley v. Baxendale, 9 Exch. 
 
 427 ; Walton v. Pothergill, 7 C. & P. 341. 
 
 392. See rule, in case of refusal to 8 See Medbury v. New York & Erie 
 
 carry passengers, The Zenobia, Abb. B. R. Co., 26 Barb. (N. Y.) 564. 
 Adm. (U. S.) 80 ; Porter v. Steamboat 
 New England, 17 Mo. 290. 
 
658 THE LAW OF CARRIERS. 
 
 Were such not the case, the result would be deplorable. The 
 laws, in attempting to do too much, would do too little, — 
 in attempting to do' perfect justice, would fall short of all 
 equity. 
 
 Sec. 669. Illustration. — The rule of law is that stated 
 above. A case will illustrate this rule. A ship's husband 
 covenanted to load brandy on board a ship and proceed with 
 it to Madeira, and the merchant covenanted to pay for it there, 
 and load it with a full cargo home. The merchant arranged 
 at Madeira to barter the brandy, which he expected, for fruit, 
 which was to form the cargo. The ship's husband sued and 
 recovered against him for not supplying cargo. He then sued 
 the ship's husband for not bringing the brandy, laying as 
 special damage that, by reason of his not doing so, plaintiff 
 had been unable to procure a return cargo, and in this way he 
 claimed to recover the amount paid in the former action and 
 its costs. It was held that such damage was too remote, and 
 Tindal, C. J., said : " If I contract to transfer stock and do 
 not, the party with whom I contracted has no right to tell me 
 a month afterwards that, if I had transferred the stock, he 
 could have bought an estate with the money. There was a 
 case of a man who brought an action against the keeper of 
 a ferry-boat for refusing to carry him across a river, in conse- 
 quence of which he sustained a loss by not being able to keep 
 an appointment. But it was held that he could not recover 
 damages on any such ground." 1 
 
 Sec. 670. Effect of Notice in Cases of Special Damage. — 
 In all cases. of special damage it is of importance to discover 
 whether or not there was any notice upon the part of the 
 owner as to the effect that might result from his breach of 
 contract, to ascertain the exact nature of such notice, and the 
 fact of its having been brought to the knowledge of the carrier 
 or not. In a case where the plaintiff sent goods by rail, which 
 he intended to sell at Bedford market on Saturday, and which 
 ought to have arrived in time for it, but did not give notice 
 that they were sent for that purpose, it appeared that the 
 
 1 Walton v. Fothergill, 7 C. & P. 394. See also Watson v. Ambergate 
 Kail. Co., 15 Jur. 488. 
 
ACTIONS AGAINST AND BY CARRIERS. 659 
 
 plaintiff's clerk proceeded to Bedford upon the Saturday, and, 
 owing to the non-delivery of the goods until the Monday fol- 
 lowing, he removed them to another place for sale ; it was 
 held in the action which was brought for the non-delivery of 
 the goods within a reasonable time, that the expenses so in- 
 curred — that was, the expense of removal, together with the 
 clerk's wages and expenses while absent on his duty — might 
 be given by the jury as damages. 1 So, where R. sent goods 
 from Manchester by railway to his . traveller at Cardiff, and 
 the delivery of the goods was, through the negligence of the 
 company, delayed until the traveller had left Cardiff, and R. 
 in consequence lost the profits which he would have derived 
 from a sale at Cardiff, it was held that, in the absence of no- 
 tice to the company of the object for which the goods were 
 sent, R. could not recover from the company such profits as 
 damages for the delay. 2 
 
 Sec. 671. Damages for Loss of or for Injury to Goods. — As 
 we said above, the rule that the value of the goods lost, or the 
 amount by which the value is diminished by the injury, is to 
 be the measure of damages, requires some explanation. 3 The 
 value of goods varies, and the question at once arises as to 
 whether it is the value of the goods at the time they were con- 
 signed to the carrier's custody, or at the time of the loss, or 
 at the time that they ought to have been delivered, which is 
 to be taken as the standard in computing the damages. The 
 very fact that goods are sent from one place to another, the 
 very existence of carriers proves that the value of goods varies 
 from time to time, and in different places, and, at the same 
 time, shows that the value of the goods will be greater at the 
 
 1 Black v. Baxendale, 1 Exch. s See Ludwig p. Mayer, 5 W. & S. 
 410; and see Mayne on Damages, (Penn.)435; Hand ». Baynes, 4Whart. 
 P- 154. (Penn.) 204 ; Segura v. Reed, 3 La. 
 
 2 Great Western Rail. Co. v. Red- Ann. 695 ; Sherman v. Wells, 28 Barb. 
 mayne, 1 L. R. C. P. 329 ; 35 L. J. (N. Y.) 403 ; Hackett v. Boston, &o. 
 C. P. 123. See also Hales v. London R. R. Co , 35 N. H. 390 ; Laurent v. 
 & North- Western Rail. Co., 4 B. & S. Vaughan, 30 Vt. 90 ; Worthen v. Wil- 
 66 ; Woodger v. Great Western Rail, mot, 30 Vt. 555 ; New Orleans, &o. 
 Co., 2 L. R. C. P. 318 ; 36L.J.C.P. R. R. Co. v. Moore, 40 Miss. 39; 
 177. M'Gregor v. Kilgore, 6 Ohio, 358. 
 
660 THE LAW OP CARRIERS. 
 
 end of the transit than at the time they were received by the 
 carrier. Goods are transported from place to place because 
 of the greater requirements of the people . in one town or 
 country for particular goods at particular times. There is a 
 greater demand in one place, at one time, for a certain kind 
 of goods, and hence the price of that particular kind of 
 goods is higher in that place at that time than it is in other 
 places. Therefore, if the difference of prices is greater than 
 the amount to be paid for the carriage of the goods between 
 the two places, people will send their goods to the place where 
 they can get the most money for them. Hence the goods have 
 two values, — that of the time of starting, and that of the time 
 of arriving. And it might come to be a question, in case of 
 the loss of the goods during the transit, which of these was to 
 determine the amount to be paid to the owner by the carrier. 
 These facts show the necessity of a more definite rule as to 
 the measure of damages than the one alluded to above, and it 
 seems to be settled that it will be the value of the goods at 
 the time that they were lost which will be the standard to go 
 by, and that is to be looked at in relation to the price of the 
 goods at the destination. 1 In an action against ship-owners 
 for loss of goods, Lord Ellenborough said that the plaintiffs 
 were entitled to recover the value of the goods on board at the 
 time she was captured, by reason of the deviation. That, in 
 the absence of other evidence as to the profit of the adventure, 
 that value could not be taken at more than the cost price and 
 shipping charges, and that the insurance premium could not 
 be added, as no new value was given to the goods by insuring 
 them. 2 Where the cargo was conveyed to its proper destina- 
 tion, and there handed over to a person who was not entitled 
 to it, it was decided that the value at the port of discharge 
 was the proper measure of damages. In that case Parke, J., 
 remarked : " The plaintiffs are entitled to be put in the same 
 situation as they would have been if the cargo had been de- 
 livered to their order at the time it was delivered to B., and 
 the sum it would have fetched at that time is the amount of 
 
 1 Mercer v. Jones, 3 Camp. 477. 2 Parker v. Jones, 4 Camp. 112. 
 
ACTIONS AGAINST AND BY CARRIERS. 661 
 
 loss sustained by the non-performance of the defendants' 
 contract." x 
 
 Sec. 672. Distinction between Bailment for Carriage and for 
 Safe Keeping. — There is a distinction to be drawn between 
 the rules of law applicable to bailees when the bailment is for 
 the purpose of carriage, and to bailees when the goods are 
 bailed simply with a view to safe custody. In the latter case 
 the bailee is not answerable for any special or consequential 
 damage arising to the bailor from the loss beyond the value of 
 ' the goods, unless such a liability has been created in him by 
 express contract. Thus, in the case of Henderson, or Ander- 
 son, v. North-Eastern Railway Company, 2 where the plaintiff, 
 a commercial traveller, sued the company, as warehouseman, 
 for the loss of a case of patterns, it was held that he was en- 
 titled to recover only the value of the case and of the patterns, 
 and was not entitled to recover either salary or the expenses he 
 had incurred while he was waiting for new patterns. In that 
 case Pollock, C. B., said : " There is a great difference between 
 a carrier and a warehouseman. Where a carrier is employed, 
 it is known, and must be assumed, that the goods are going 
 for some purpose, and so far it is notice which may render the 
 carrier responsible for damages resulting from loss of the 
 goods beyond their actual value, but the simply depositing a 
 parcel at *a warehouseman's till to-morrow, cannot be notice 
 which shall affect the warehouseman in case of the loss of the 
 parcel, beyond the actual value of the article." 3 
 
 1 Brandt v. Bowlby, 2 B. & Ad. 108 ; Price v. The Steamship Uriel, 
 932, 939 ; Dusar r. Murgatroyd, 1 10 La. Ann. 412 ; Shaw v. South Car- 
 Wash. (U. S. C. C.) 13; The Gold olina R. R. Co., 5 Rich. (S. C.) L. R. 
 Huuter, Blatchf. & How. (U. S.) 300 ; 462 ; Nettles v. South Carolina R. R. 
 The Joshua Barker, Abb. Adm. (D. S.) Co. 9 Rich. (S. C.) L. R. 462 ; Van 
 215 ; The Colonel Ledyard, Sprague Winkle v. The United States Mail 
 (U. S.), 530 ; Spring v. Haskell, 4 Steamboat Co., 37 Barb. (N. Y.) 122 ; 
 Allen (Mass.), 112 ; Dean v. Vaccaro, Bailey v. Shaw, 4 N. H. 297. See also 
 2 Head (Tenn.), 488 ; Louis v. Steam- two more recent cases, Rice v. Ontario 
 boat Buckeye, 1 Handy (Ohio), 150 ; Steamboat Co., 56 Barb. (N. Y.) 384; 
 Gillingham v. Dempsey, 12 S. & R. Rome R. R. Co. v. Sloan, 39 Ga. 636. 
 (Penn.) 183 ; Warden v. Greer, 6 2 9 W. R. 519 ; 4 L. T. u. s. 216. 
 Watts (Penn.), 424 ; Nourse v. Snow, * 4 L. T. ». s. 216. See also 
 6 Me. 208 ; Sangamon, &c. v. Henry, Needles v. Howard, 1 E. D. S. (N. Y. 
 14 111. 146 ; Ringold v. Haven, 1 Cal. C. P.) 54. 
 
662 THE LAW OP CARRIERS. 
 
 Sec. 673. Distinction considered. — With deference for the 
 opinion of that learned judge we would submit that the dis- 
 tinction is possibly more apparent than real, and that he has 
 been led into a fallacy by the pseudo attractiveness of extreme 
 cases. It is true that, when goods are given to a carrier, he 
 may understand that it is with a purpose that they are given 
 to him, that he is to convey them to a certain place, and so 
 convenience and benefit the sender of the goods. He may 
 understand that the delivery of these goods at their destina- 
 tion will result in profit to the consignor, and, consequently, 
 that he has in his possession, and under his care, goods of a 
 value greater than that which attached to them when they 
 were delivered to him. All this may, and rightly would be, 
 held to be a kind of constructive notice which might, as the 
 Chief Baron holds, render him responsible for the damages 
 resulting to the goods beyond the actual value. But where 
 goods are bailed to a warehouseman, may he not assume 
 that they are so left " for some purpose " ? — is that purpose 
 not the convenience and benefit of the bailor ? In what way 
 do the cases differ ? Warehousemen are not simple bailees 
 who keep a parcel " until to-morrow ; " they have the custody 
 of goods for long periods, which are intrusted to them fre- 
 quently with a view to the ultimate profit of the owner, by a 
 rise in price of the particular kind of goods. As the owner 
 who gives his goods to a carrier sends his supply to " demand" 
 in space, so the owner who warehouses his goods is, as it were, 
 sending his goods to " demand " in time. The Avarehouseman, 
 as it were, transports the goods through weeks and months in 
 safety, instead of over miles and leagues. That being the 
 case, the distinction seems to us to be entirely arbitrary. To 
 return, then, to the question of the measure of damages, we 
 may allude to a matter already described, and that is, the pre- 
 sumption which exists in any case where it appears that the 
 goods have been lost by the wrongful act of the carrier, that 
 the goods lost are the best of their kind. In the case of Ar- 
 mory v. Delamerie, 1 which was an action in trover for a jewel, 
 Pratt, C. J., directed the jury that, unless the defendant could 
 
 1 1 Strange, 505 ; 1 Sm. L. Ca. 256. 
 
ACTIONS AGAINST AND BY CARRIERS. 663 
 
 disprove that it was of the finest quality, they ought to pre- 
 sume it to be so, and that the measure of damages ought to 
 be the value of such jewel. 1 Where the plaintiff is not him- 
 self the owner of the goods, but has only a qualified property 
 in them, he will be entitled to recover their whole value from 
 the carrier, if he is himself liable for their value to the owner, 
 and it is not necessary that he should actually have paid the 
 owner. 2 
 
 SEC. 674. Under the Carriers' Act. — Before passing to the 
 other cases which throw light upon the question of the meas- 
 ure of damages, it may be well to notice the law as to the loss 
 of valuable goods under the Carriers' Act, 3 and the proof of 
 value which is made n&cessary by that enactment. The 9th 
 section of that act provides that " such mail-contractors, stage- 
 coach proprietors, or other common carriers for hire, shall 
 not be concluded as to the value of any such parcel or pack- 
 age by the value so declared as aforesaid, but that he or they 
 shall in all cases be entitled to require from the party suing, 
 in respect of any loss or injury, proof of the actual value of 
 the contents by the ordinary legal evidence, and that the mail- 
 contractors, stage-coach proprietors, or other common carriers 
 as aforesaid, shall be liable to such damages only as shall be 
 so proved as aforesaid, not exceeding the declared value, to- 
 gether with the increased charges as before mentioned." This 
 reference is to the 7th section, which provides " that where 
 any parcel or package shall have been delivered at any such 
 office, and the value and contents declared as aforesaid, and 
 the increased rate of charges been paid, and such parcels or 
 packages shall have been lost or damaged, the party entitled 
 to recover damages shall also be entitled to recover back such 
 increased charges so paid, in addition to the value of such 
 parcel or package." 
 
 Sec. 675. Common-Law Rule. — But this enactment has to 
 do with a somewhat limited class of cases, and concerning the 
 
 1 See also, per Gatcrow, B., in But- Sanquer v. London & South Coast 
 
 ler v. Basing, 2 C. & P. 613.. Bail. Co., 16 C. B. 163. 
 
 8 Crouch v. London & North-West- a 11 Geo. IV. and 1 Will. IV. 
 
 ern Rail. Co., 2 C. & K. 789 ; and see c. 68. 
 
664 THE LAW OP CAEEIEES. 
 
 much larger class to which it does not refer, there is only 
 the rule of law to which we have alluded above, viz. that 
 the owner of goods is entitled to recover such damages from a 
 carrier, through whose negligence his goods have been lost, as 
 will compensate him not only for the actual value of the goods 
 at the time when they left his hands, but also for the profits 
 which he might have derived by their sale at their intended 
 destination. At the same time the law will not allow com- 
 pensation to be given for the consequential damages arising 
 from the breach of contract, in so far as these are simply h> 
 convenience and vexation to the plaintiff ; 1 and, as we have 
 .seen, the carrier will, be held responsible only for injuries 
 which are proximate and direct consequences of the breach, 
 and not for those which are remote and indirect. 2 
 
 Sec. 676. Consequential Damages. — The leading case upon 
 this subject is, as we have said, Hadley v. Baxendale. 3 The 
 plaintiff in that case claimed damages from the defendant, a car- 
 rier, for a delay of several days in the delivery of some broken 
 iron to the engineer who was to repair it. It appeared that 
 the carrier had been informed, at the time the goods were 
 delivered to him, that the pieces of iron formed the broken 
 .shaft of the plaintiff's mill, but notice did not appear to have 
 been given that the mill could not be worked until the shaft 
 should be returned. The plaintiff claimed compensation for 
 the loss of the profits which he would have made by this mill 
 if the shaft had been returned at the proper time. At the 
 trial, the judge left the question of damages to the jury without 
 any special direction, but the court above granted a new trial. 
 In delivering the judgment of the court, Alderson, B., said: 
 " We think the proper rule in such a case as the present is 
 this : where two parties have made a contract which one of 
 them has broken, the damages which the other party ought to 
 receive in respect of such breach of contract should be such 
 as may fairly and reasonably be considered either arising 
 
 1 Hamlen ». Great Western Bail, ham, & Boston Bail. Co., 15 Jur. 
 Co., 1 H. & N. 408; 26 L. J. Exch. 448. 
 
 22. 8 9 ExcL 341; 18 Jur. 358 ; 23 
 
 2 Watson v. Ambergate, Nottbg- L. J. Exch. 179. 
 
ACTIONS AGAINST AND BY CARRIERS. 665 
 
 naturally, i.e. according to the usual course of things, from such 
 breach of contract itself, or such as may reasonably be sup- 
 posed to have been in the contemplation of both parties, at the 
 time they made the contract, as the probable results of the 
 breach of it. Now, if the special circumstances under which 
 the contract was actually made were communicated by the 
 plaintiff to the defendants, and thus known to both parties, 
 the damages resulting from such a breach of contract, which 
 they would reasonably contemplate, would be the amount of 
 injury which would ordinarily follow from a breach of con- 
 tract under these special circumstances so known and communi- 
 cated. But, on the other hand, if these special circumstances 
 were wholly unknown to the party breaking the contract, he, 
 at the most, could only be supposed to have had in his con- 
 templation the amount of injury which would arise generally, 
 and, in the great multitude of cases, not affected by any cir- 
 cumstances from such a breach of contract. For had the 
 special circumstances been known, the parties might specially 
 have provided for the breach of contract by special terms 
 as to the damages in that case ; and of this advantage it would 
 be very unjust to deprive them." 
 
 SEC. 677. Consequences of Breach of Contract. — His Lord- 
 ship went on to point out that, in the case under consideration, 
 the communication that the pieces of iron were the shaft of a 
 mill did not reasonably show to the carrier that the profits of 
 the mill must be stopped by an unreasonable delay in the 
 delivery by the carrier. In conclusion, he remarked : " It 
 follows, therefore, that the loss of profits here cannot be con- 
 sidered such a consequence of the breach of contract as could 
 have been fairly and reasonably contemplated by both the 
 parties when they made this contract. For such loss would 
 neither have flowed naturally from the breach of this contract 
 in the great multitude of such cases occurring under ordinary 
 circumstances, nor were the special circumstances, which per- 
 haps would have made it a reasonable and natural consequence 
 of such breach of contract, communicated to or known by 
 the defendants. The judge ought, therefore, to have told the 
 jury that upon the facts then before them they ought not to 
 
666 THE LAW OP CARRIERS. 
 
 take the loss of profits into consideration at all in estimating 
 the damages." x 
 
 SEC. 678. Average Percentage on Profits. — Several cases 
 have come before the courts of law in recent times in which 
 the rule of law as to the measure of damages has been made 
 still clearer. Some judges have thought that it might be 
 fairer to allow an average percentage upon the mercantile 
 profits, 2 or the average profits to be made by the use of the 
 article, 3 as a measure of damages in any case in which goods 
 have been lost by a carrier. But in the very case in which 
 these opinions were expressed it was thought that in an action 
 for non-delivery of a ship the damages were not too high, 
 although they gave the difference between profits which the 
 ship would have made if she had been duly delivered when 
 freights were high, and the profits she earned when delivered 
 some months later when freights were low. 4 
 
 Sec. 679. More Precise Rule necessary. — Several of the 
 recent cases are important in this connection, some of them 
 indicating what is not the measure of damages, and others as 
 clearly indicating what will in many cases be regarded as the 
 legal standard or criterion. This is the more important, as it 
 has been held by some of the judges that, " although a very 
 excellent attempt was made in Hadley v. Baxendale to lay 
 down a rule of practice, it has been found that the rule will 
 not meet all cases," and that " it will probably be found, when 
 
 1 See also Portman v . Middleton, 27 ledge, 11 Tex. 44 ; Baldwin ». Bennett, 
 
 L. J. C. P. 231 ; Le Peinteur v. 4 Cal. 392 ; Cunningham a. Dorsey, 6 
 
 South-Eastern Pail. Co., 2 L. T. H. s. Cal. 19 ; Page v. Ford, 12 Lid. 46 ; 
 
 170 ; Pandal v. Roper, 28 L. J. Q. B. Fessler v. Love, 43 Penn. St. 313 ; 
 
 266 ; Josling v. Irvine, 30 L. J. Exch. Adams Express Co. v. Egbert, 36 
 
 78 ; Smeed v. Eoord, 28 L. J. 178 ; Penn. St. 360. 
 
 Prior v. "Wilson, 1 L. T. w. s. 549 ; 2 Jeevis, C. J., in Pletcher v. Tay- 
 
 Griffen v. Colver, 16 N. Y. 489 ; Ham- leur, 17 C. B. 27 ; 25 L. J. C. P. 66. 
 
 ilton v. M'Pherson, 28 N. Y. 72 ; s Willes, J., 17 C. B. 29 ; 25 L. J. 
 
 Shepherd v. Milwaukee Gas Light Co., C. P. 66. 
 
 15 Wis. 318 ; Hinckley v. Beokwith, 4 See also the suggestion of Vice- 
 
 13 Wis. 31 ; Abbott ». Gateh, 13 Md. Chancellor Wood (Loud Hather- 
 
 314 ; Copper Co. v. Copper Mining ley), in De Mattos v. Gibson, 30 L. J. 
 
 Co., 33 Vt. 92 ; Ashe u. De Rossett, Chan. 145. 
 6 Jones (N. C), 299 ; Meade v. Rut- 
 
ACTIONS AGAINST AND BY CARRIERS. 667 
 
 the matter comes to be more solemnly discussed, that in this, 
 as in many other cases of contract, there is no measure of 
 damages at all, and that we are seeking to find a rule where a 
 rule cannot be made." 1 
 
 Sec. 680. Consequential Damages 'where not allowed. — 
 In the case in which the judicial opinion just quoted was 
 expressed, and which in many respects resembled the case of 
 Hadley v. Baxendale, the facts were these : The plaintiffs 
 delivered to the Lancashire and Yorkshire Eailway Company 
 * ten tons of cotton, to be carried from Liverpool to Oldham. 
 In the usual course the cotton should have been received on 
 the following day, but it did not, in fact, arrive till four days 
 afterwards. In consequence of the delay a new mill of the 
 plaintiffs' was stopped for want of cotton to go on with. It 
 further appeared that at the time of the bailment to the com- 
 pany nothing was said as to the particular consequences likely 
 to result from the delay in forwarding it. But on the day 
 before it was delivered to the company, and repeatedly on each 
 succeeding day until it arrived at Oldham, one of the plaintiffs 
 called to inquire about it, and on each occasion told the man- 
 ager of the goods department, at the Oldham Station, that the 
 mill was at a stand solely on account of the non-delivery of 
 the cotton. The plaintiffs brought an action against the com- 
 pany for neglect in delivering the cotton, and the plaintiffs 
 proved that they had, during the time the mill was at a stand, 
 paid in wages 71., and that the profit which would have been 
 made, if the mill had been at work, was 71. 10s. The judge of 
 the county court told the jury, that where, by the neglect of a 
 carrier, a man had no material to carry on his business, he 
 had a right to charge as legal damages such loss as immedi- 
 ately and naturally arose from stopping the mill ; that the 
 plaintiffs were entitled to the money they had actually paid as 
 wages, 71. ; and that the profit which the plaintiffs would have 
 made was a fair subject of calculation, and the jury should 
 therefore give, over and above the 71., such amount as would 
 be the actual loss and detriment the plaintiffs had suffered by 
 
 1 Per "Wilde, B. (agreeing with Yorkshire Rail. Co., 6 H. & N. 211 ; 
 Maktin, B.), in Gee v. Lancashire & 30 L. J. Exch. 11. 
 
668 THE LAW OP CARRIERS. 
 
 the non-arrival of the cotton in due course. In the Court of 
 Exchequer, however, it was held that this was a misdirection, 
 and that the plaintiffs were not entitled to the amount of 
 wages paid and of the profits lost as legal damages, inasmuch 
 as it assumed that the stoppage of the mill arose entirely from 
 the non-delivery of the cotton, when in fact it arose partly 
 from that and partly from the plaintiffs having no cotton to 
 go on with. 1 
 
 Sec. 681. Rule in Davis v. North-Western Railway Co. — 
 In a case where a party delivered, after paying the carriage, 
 to a railway company, goods to be carried from A. to B., and 
 to be delivered to a party at the latter place, part of the transit 
 was effected by another railway company, which refused to 
 deliver up the goods to the consignee without payment of an 
 additional specified sum ; but, an action having been threat- 
 ened against the contracting company, an offer was made to 
 deliver them up without that payment. The action was, how- 
 ever, persevered in, the plaintiffs declaring against the com- 
 pany as carriers with a count in trover for the conversion of 
 the goods, subsequently to which they were given up in a 
 damaged state. In this case it was held that the additional 
 sum demanded for the goods was not the measure of damages. 2 
 
 Sec. 682. Rule in Simmons v. South-Eastern Railway Co. — 
 Again, in a case in which the plaintiff having sent a quantity 
 of hops, of more than 101. value, by a railway company, and 
 the consignee refused to receive them on the ground of their 
 not having been delivered in time, and afterwards sent to the 
 plaintiff a signed memorandum of the original contract, it was 
 held that in assessing the damages for negligence the jury 
 was not at liberty to take into account the loss of the bargain 
 between the plaintiff and the consignee. 8 In another analo- 
 gous case goods were not delivered until after the season for 
 them had passed, and it was held that the measure of damages 
 was the difference between the market value of them at the 
 
 1 See also Great Western Rail. Go. 8 Simmons v. Soutu-Eastern Rail. 
 v. Redmayne, 1 L. R. C. P. 329. Co., 7 Jar. b. s. 849. 
 
 2 Davis v. Nortli-Western Rail, Co., 
 4 Jur. n. s. 1303. 
 
ACTIONS AGAINST AND BY CAEEIEES. 669 
 
 time of delivery, and the time when they ought to have been 
 delivered ; and that the plaintiff could not include anything 
 for the loss of the profits which he might have made by them 
 if they had been delivered at the proper time and during the 
 season. 1 
 
 SEC. 683. What will be the Measure of Damages. — So much 
 for the negative. Some cases, however, have positive indica- 
 tions of what may be regarded as the measure of damages. 
 Thus, where the plaintiff, a hop-grower in Kent, sent by rail 
 to London some pockets of hops, consigned to a purchaser, 
 the railway company kept the hops for some days on their 
 premises in an open van, whereby a small portion was stained 
 by wet, and the purchaser rejected the whole, as he was 
 entitled to do, by the custom of the market. The plaintiff 
 dried the stained hops, and they were rendered as good as 
 ever for actual use, but the staining had depreciated the 
 market value of the bulk. The plaintiff sent the hops to a 
 factor for sale, but at that time the market price of hops had 
 fallen considerably from what it was at the time the hops 
 ought to have been delivered. The company had no notice 
 that the hops were sent to London for sale. It was held, 
 under these circumstances, first, that the plaintiff was entitled 
 to recover as damages the amount of the depreciation in the 
 market value of the hops, and was not confined to the portion 
 actually damaged ; secondly, that he was entitled to recover 
 as damages the difference between the market price on the 
 day when the hops were sold and the day when they ought to 
 have been delivered. 2 It is somewhat difficult to distinguish 
 between these cases in the principle of their decision. 
 
 Sec. 684. Where Test is inapplicable: — Where goods are 
 intrusted to a carrier for conveyance, and lost by the way, the 
 measure of damages is, as we have said, the market value of 
 the goods at the place of destination at the time they should 
 have been delivered. 3 If, however, this test is inapplicable by 
 
 1 Wilson v. Lancashire & Yorkshire 8 See ante, p. 660, and Rice v. Bax- 
 Kail. Co., 3 L. T. s. s. 859 ; 9 C. B. endale, 7 H. & N. 96 ; 3 L. J. Exch. 
 k. s. 632. 371. 
 
 2 Collardo. South-Eastern Bail. Co., 
 7 H. & N. 79 ; 30 L. J. Exch. 393. 
 
670 THE LAW OP CARRIERS. 
 
 reason of there being no market for goods, of the description 
 at the place of delivery, the jury, in assessing the damages, 
 must ascertain the cost price of the goods and the expenses 
 of transit (if paid), and add to these such a sum for import- 
 er's profits as may in their discretion appear reasonable. 1 
 
 Sec. 685. Measure the Amount that will replace. — Reason- 
 able Compensation. — In the case of The British Columbia 
 Saw-Mill Company v. Nettleship, 2 the plaintiffs delivered to 
 the defendant's servants, on a quay at Glasgow, for shipment 
 on board the defendant's vessel, which lay alongside, several 
 cases containing machinery, which was intended for the erec- 
 tion of a saw-mill in Vancouver's Island. The master gave a 
 bill of lading for them, describing the cases as containing 
 " merchandise." The defendant knew generally of what the 
 shipment consisted. On the arrival of the vessel at her desti- 
 nation, one of the cases, which contained machinery without 
 which the mill could not be erected, could not be found on 
 board ; and the plaintiffs were obliged to send to England to 
 replace the lost articles. It was held that the measure of 
 damages for the breach of contract was' the cost of replacing 
 the lost articles in Vancouver's Island, with interest at 5 per 
 cent upon the amount, until judgment, by way of compen- 
 sation for delay. Bovill, C. J., said, " The extent of the 
 carrier's liability is to be governed by the contract he has 
 entered into, and the obligations which the law imposes upon 
 him. He is not to be made liable for damages beyond what 
 may fairly be presumed to have been contemplated by the 
 parties at the time of entering into the contract. It must be 
 something which could have been foreseen and reasonably 
 expected, and to which he has assented expressly or impliedly 
 by entering into the contract. The defendant admits that he 
 was liable for the value of the articles which were lost. Be- 
 yond that, I think he is responsible for delay, as a consequence 
 of his breach of duty. In considering the question of delay, 
 and the principle upon which the damages for it are to be 
 
 1 O'Hanlan v. Great Western Rail. 2 3 L. R. C. P. 499; 18 L. T. s. s. 
 Co., 6 B. & S. 484 ; 11 Jur. n. s. 797 ; 604. 
 34 L. J. Q. B. 154. 
 
ACTIONS AGAINST AND BY CARRIERS. 671 
 
 assessed, many serious considerations arise. No stronger 
 instance can be put than that of a failure of an engagement 
 to pay acceptances at maturity. The non-payment may cause 
 the destruction of the creditor's trade, and the debtor may 
 know that inevitable ruin will be the result. And yet, what 
 in that case is the measure of damages which the creditor is 
 entitled to recover ? Has it ever been held to be the actual 
 amount of the damage sustained ? Certainly not. The true 
 measure is a reasonable compensation for the non-performance 
 of the contract." x 
 
 Sec. 686. Wider Liability. — Yet, although there can be 
 little doubt that that is the present rule of law, there have 
 been many decisions in favor of a much wider liability, — a 
 liability which made a defendant, on breach of contract, re- 
 sponsible in damages for the loss not only directly due to the 
 breach, but for damage arising out of the plaintiff's inability 
 to fulfil a contract which, but for the defendant's failure, he 
 would in all probability have fulfilled. 2 This, however, is no 
 longer the rule of law in reference to this matter, and the 
 truth of the assertion can be amply gathered from the cases 
 above. 3 
 
 Sec. 687. Contributory Damages — Two points are to be 
 noted before leaving this subject. The first is, that contribu- 
 tory damage on the part of the plaintiff will discharge the 
 liability of the defendant, 4 and that the plaintiff's claim to 
 
 1 See also, per Cockbtjun, C. J., in Shepherd v. Milwaukee Gas Light 
 Corry i>. Thames Ironworks Co., 3 Co., 15 Wis. 318 ; Hinckley v. Beck- 
 L. R. Q. B. 181. with, 13 Wis. 31 ; Story v. New York 
 
 2 Waters v. Towers, 8 Exeh. 401; & Harlem R. R. Co., 6 N. Y. 85; 
 Dunlop v. Higgins, per Loud Cotten- Fox v. Harding, 7 Cash. (Mass.) 
 ham, 1 H. of L. Cas. 403 ; Josling v. 516; Philadelphia, See. R. R. Co. 
 Irvine, 30 L. J". Exch. 78. v. Howard, 13 How. (U. S.) 807; 
 
 8 See also Caledonian Bail. Co. v. Cook o. Commissioners of Hamilton, 
 
 Cole, 3 L. T. N. s. 252 ; Prior v. Wil- 6 M'Lean (U. S. C. C), 612; Hay v. 
 
 son, 8 W. R. 260 ; Spark v. Heslop, Gronoble, 34 Penn. St. 9 ; Chapin v. 
 
 28 L. J. Q. B. 197 ; Dingle v. Hare, Norton, 6 M'Lean (U. S. C. C), 500 ; 
 
 29 L. J. C. P. 143 ; Mastreton v. Coweta Falls Manufacturing Co. v. 
 Mayor of Brooklyn, 7 Hill (N. Y.), Rogers, 19 Ga. 417. 
 
 62 ; New York & Harlem R. R. Co. v. * Davis v. London & North- West- 
 Story, 6 Barb. (N. Y.) 419; Seatou v. em Rail. Co., 7 W. R. 105 ; Einblen 
 Second Municipality, 3 La. Ann. 45 ; v. Myers, 30 L. J. Exch. 71. 
 
672 THE LAW OF CARRIERS. 
 
 damages will be measured materially by his ability to compen- 
 sate himself. An omission to do so will reduce the damages ; 
 thus, where sold goods were not duly delivered, it was held 
 that the vendee could recover only the difference between the 
 contract price and the market price of them. 1 
 
 Sec. 688. Where the Damage arises out of Wrong. — The 
 other point is, that the principle which must guide the assess- 
 ment of damages issuing out of wrong is not so strict as that 
 which governs the same duty when the damage has arisen out 
 of a breach of contract. It is a rule that for every breach of 
 duty nominal damages, at least, must be given. 2 But as there 
 is no certain measure of damages, the jury must be left to 
 their common sense in the application of the above principle 
 (that in Hadley v. Baxendale), and the court will not disturb 
 their verdict. 3 
 
 SEC. 689. Exemplary and Vindictive Damages. — Where, 
 however, the wrong is of a malicious character, the jury may 
 award exemplary or vindictive damages. Thus, if a railway 
 company, with a view of obtaining a monopoly, or of injuring a 
 rival company, refuse to carry goods which they are bound by 
 law to carry, the jury will be directed to use their discretion 
 in this matter. 4 The jury is- entitled to take into consideration 
 the injury to the party's feelings, and the pain he has ex- 
 perienced, — as, for instance, the amount of violence proved 
 in an action of tort, and the like. 5 
 
 Sec. 690. Master's Duty with regard to Repair of Ship. — In- 
 demnity. — It is the master's first duty to convey the cargo to 
 its destination in the same ship, and if the ship be damaged, 
 it is his duty to repair it. To do this he is entitled, in cases 
 of urgent necessity, to sell the cargo. If he does so, it raises 
 an implied contract of indemnity from the owner, for whose 
 
 1 Gainsford ». Carroll, 2B.AC. land Counties Hail. Co., 4 L. T. n. s. 
 524. 293. See also Goddard v. Grand 
 
 2 Crompton, J., Eray v. Vowles, 28 Trunk Bailway, 57 Me. 202. 
 
 L. J. Q. B. 232. 6 Pollock, C. B., in Hamlen v. 
 
 B Day v. Holloway, 1 Jur. 794; Great Northern Rail. Co., 26 L. J. 
 
 Williams v. Currie, 1 C. B. 841. Exch. 20 ; of. Robin v. Steward, 23 
 
 4 Crouch v. Great Northern Rail. L. J. C. P. 148. 
 Co., 25 L. J. Exch. 137 ; Beil v. Mid- 
 
ACTIONS AGAINST AND BY CARRIERS. 673 
 
 benefit the act was done, in favor of the shipper. 1 This im- 
 plied contract raises the question, How are the goods to be 
 valued for the purpose of this indemnity ? Where the ship 
 has arrived, there is no doubt that the owner is entitled to the 
 amount which they would have fetched at the port of destina- 
 tion. 2 A doubt has arisen as to whether, in the event of the 
 goods having been sold for a greater amount than they would 
 have been worth if they had been delivered, the owner can 
 claim the difference or not. 3 Where, however, the ship never 
 fc reaches its destination, but has been lost since the sale, it 
 seems certain that the goods cannot be taken at their price at 
 a place which they never would have reached. It is a ques- 
 tion in such a case whether the owner would be liable at all. 4 
 Certain Acts of Parliament restrict the liability of ship-owners 
 for damages, and it is necessary that the reader should refer 
 to these, at the same time bearing in mind that the principles 
 applicable to carriers by water differ in no material particular 
 from those already referred to. 5 
 
 SEC. 691. Actions against Passenger Carriers. — Concerning 
 this branch of our subject, we shall be enabled to speak with 
 greater brevity than would have been consistent with our 
 duties in relation to the last subject treated. Much that we 
 have already said concerning the carriers of goods is equally 
 applicable to carriers of persons. One or two points in which 
 the law differs in respect to these two modes of traffic, or in 
 respect of which we feel that enough has not been already 
 said, must be referred to here. 
 
 Sec. 692. Parties to sue. — We have already examined and 
 
 1 Benson v. Duncan, 1 Exch. 537; 196, 205 ; Abb. on Ship. 400 ; Wilson 
 2 Exch. 644. v. Dickson, 2 B. & A. 2 ; Brown v. 
 
 2 Alers v. Tobin, Abb. on Ship. 372 ; "Wilkinson, 5 M. & W. 391 ; Mx parte 
 Hallet v. Wigram, 9 C. B. 580. Rayne, 1 Q. B. 982 ; and see, as to 
 
 8 Per Lord Ellenboeough, in small craft, Hunter v. M'Gowan, 1 
 
 Campbell v. Thompson, 1 Stark. 490 ; Bligh, 508. See, as to the liability of 
 
 and per Holroyd, J., in Richardson ship-owners, 17 & 18 Vict. c. 110, 
 
 v. Nourse, 3 B. & A. 237. § 388 ; but see Stuart v. Isemonger, 4 
 
 4 Atkinson v. Stephens, 7 Exch. Moore, P. C. 11 ; Hammond v. Rog- 
 
 567. ers, 7 Moore, P. C. 170 ; Rodringues 
 
 6 17 & 18 Vict. c. 104, §§ 503, 504. v. Melhuish, 24 L. J. Exch. 26. 
 See also Morris w. Robinson, 3 B. & C. 
 
 43 
 
674 THE LAW OP CARRIERS. 
 
 commented on a case in which a master brought an action 
 against a railway company for the loss of his servant's ser- 
 vices through their negligence, and in which it was held that, 
 as the servant was injured, not by simple wrong, the action 
 was founded on contract, and would not lie. 
 
 Sec. 693. 7 & 8 Vict. c. 85. — By the 7 & 8 Vict. c. 85, § 6, 
 as we have seen, railway companies are bound to carry, by 
 certain trains, children under three years of age, without 
 charge, and are 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 plain- 
 tiff, 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. 1 In the course of 
 the journey an accident occurred, through the negligence of 
 the defendants, and the plaintiff was injured. It appeared 
 that 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 that there was no intention on the part of 
 the mother to defraud the company, and it was held that the 
 plaintiff was entitled to recover against the defendants for 
 the injury he had received. 2 
 
 SEC. 694. Form of Action. — Advantages of different Forms. 
 — We have already entered somewhat fully into the question 
 of the duties of the carriers of passengers, and have seen 
 that, although they are not insurers, they are bound to carry 
 all persons as passengers who offer to become such. 3 A non- 
 performance of this duty is a breach of the law, for which an 
 action will lie. In such a case the declaration would be in 
 case. But we have also seen that it is a duty of a carrier, as 
 well as an implied contract upon his part, to carry safely ; and 
 if he fails to do so in consequence of negligence or miscon- 
 duct upon his own part, or upon that of his servants, he will 
 
 1 Alton v. Midland Rail. Co., 19 327 ; 36 L. J. Q. B. 201. As to who 
 
 C. B. n. s. 213 ; 34 L. J. C. P. may sue under the Passengers' Act, 
 
 292. 1855, see that act (18 & 19 Vict c. 
 
 2 Austin v. Great Western Bail. 119, § 84). 
 Co., 3 L. K Q. B. 442 ; 8 B. & S. » Ante, p. 507. 
 
ACTIONS AGAINST AND BY CARRIERS. 675 
 
 be liable to an action at the instance of the person injured, 
 which may either be in assumpsit on the implied contract for 
 safe conveyance, or in case, as for the tort. 1 These, as in the 
 case of an action brought against a carrier of merchandise, 
 have different advantages to recommend their adoption in 
 different cases. Thus, if assumpsit is chosen as the form of 
 action, to entitle the plaintiff to recover he must prove the 
 liability of all the parties to be sued; but in action on the 
 case against the defendants as the proprietors of a coach for 
 injuries sustained by the plaintiff, a passenger, which was due 
 to negligence, the jury found a verdict against eight of the 
 defendants, and in favor of the other two, and judgment was 
 entered accordingly. 2 If, however, although the action is 
 framed in case, it is really founded on contract, such a verdict 
 could not have been given. The plaintiff can, of course, only 
 recover upon the grounds alleged in his declaration, and 
 therefore, in a case already alluded to, in which a passenger 
 brought an action for injury done to him by the overturning 
 of a stage-coach, the declaration stated that the servants of 
 the defendant "negligently drove, conducted, and managed 
 the coach," and it appeared that the accident happened by 
 reason of the insufficiency of the coach, it was held that the 
 plaintiff could not recover. 3 
 
 Sec. 695. Advantage of Adoption of Assumpsit. — Another 
 advantage attaching to the adoption of the action in assump- 
 sit in preference to an action on the case is, that it survives 
 against the executor or administrator. The rule of law is, 
 actio personalis moritur cum persond, a personal right of action 
 dies with the person, and this leads us to the legal fact, that 
 all rights of action for injuries merely personal determine 
 upon the death of the person who suffered the injury. The 
 executor or administrator is only the representative of the 
 temporal property of the deceased, but personal wrongs are 
 not represented after death, unless they affect the personal 
 estate in the hands of his representatives. 4 This principle 
 
 1 Knight v. Quarles, 2 B. & B. 109. 8 Per Littledale, J., in Mayor v. 
 
 2 Brotherton v. Wood, 3 B. & B, Humphries, 1 C. & P. 251. 
 
 541. * Knight v. Quarles, 2 B. & B. 102 ; 
 
676 THE LAW OF CARRIERS. 
 
 was at one time extended to the protection of those persons 
 who, through negligence, caused the death of others, upon 
 the seeming principle that the injury, death, had been suffered 
 during the life of the individual. This rule of law was evi- 
 dently of a most improper nature, for it subjected carriers 
 and others who, through negligence, caused a temporary 
 injury to any of their passengers, to an action for damages, 
 while, if, through graver negligence, they caused the death of 
 such persons, they were exempt from all legal penalty. 1 
 
 SEC. 696. Lord Campbell's Act, 9 & 10 Vict o. 93. — To 
 remedy this, Lord Campbell's Act 2 was passed, which, after 
 reciting that " no action at law i6 now maintainable against a 
 person who, by his wrongful act, neglect, or default, may 
 have caused the death of another person, and it is oftentimes 
 right and expedient that the wrong-doer in such case should 
 be answerable in damages for the injury so caused by him," 
 enacts that, " wherever the death of a person shall be caused 
 by wrongful act, neglect, or default, and the act, neglect, or 
 default is such as would (if death had not ensued) have en- 
 titled the party injured to maintain an action and recover 
 damages in respect thereof, then and in every such case the 
 person who would have been liable if death had not ensued, 
 shall be liable for an action for damages, notwithstanding the 
 death of the person injured, and although the death shall 
 have been caused under such circumstances as amount in law 
 to felony." 
 
 Sec. 697. Action to be brought in Executor's Name. — The 
 2d section of the act provides that "every such action 
 
 Siboni v. Kirkman, 1 M. & W. 423 ; Worcester K. R. Co., 9 Gush. (Mass.) 
 Baker v. Bolton, 1 Camp. 493 ; Hall 108. We should have thought that 
 v. Hollander, 4 B. & C. 660 ; Wil- the time for such distinctions as that 
 liams v. Holland, 6 C. & P. 23. had passed away. But some lawyers 
 1 In the Supreme Court of the State prefer to make a puzzle of the law, 
 of Massachusetts, it has been held that and to make its principles trifling quid- 
 no action lies where the death ensued dities rather than broad and philosoph- 
 instantaneously on the injury, on the ieal rules. 
 
 ground that no right of action ever a 9 & 10 Vict. c. 93. See Illinois 
 
 accrued to the deceased, and none con- Act of 1853 considered, Conant & 
 
 sequently could survive to his rep- Griffin, 48 111. 410. 
 resentatives. Kearney v. Boston & 
 
ACTIONS AGAINST AND BY CARRIERS. 677 
 
 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 jury by their verdict shall find and direct." 
 
 Sec. 698. Number of Actions, and Time -within which it 
 must be brought. — The 3d section makes provision that 
 " not more than one action shall lie for and in respect of the 
 same subject-matter of complaint, and that every such action 
 shall be commenced within twelve calendar months after the 
 death of such deceased person." 
 
 SEC. 699. Particulars of Person, &c, on -whose Behalf Action 
 is brought. — Interpretation Clause. — By section 4, it is provided 
 that " in every such action the plaintiff on the record shall 
 be required, 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." The 5th section 
 enacts that "the following words and expressions are in- 
 tended to have the meanings hereby assigned to them respec- 
 tively, so far as such 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 a plurality of persons and things, and words 
 denoting the masculine gender are to be understood to apply 
 also to persons of the feminine gender ; and the word ' person ' 
 to bodies politic and corporate, and '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 step- 
 son and stepdaughter." 
 
678 THE LAW OP CARRIERS. 
 
 Sec. 700. 27 & 28 Vict. c. 95. — This enactment was fol- 
 lowed by the 27 & 28 "Vict. c. 95, which by its 1st section 
 provides that, " if and so often as it shall happen at any time 
 or times in any of the cases intended and provided for by 9 & 
 10 Vict. c. 93, that there shall be no executor or administra- 
 tor 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 mentioned, 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 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 adminis- 
 trator." ! 
 
 Sec. 701. Payment of Money into Court. — The 2d section 
 provides that "it shall be sufficient, if the defendant is ad- 
 vised to pay the money into court, that he pay it as a compen- 
 sation 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 be divided by the jury, and if the 
 said sum be not accepted, and an issue is taken by the plain- 
 tiff as to its sufficiency, and the jury shall think the same 
 sufficient, the defendant shall be entitled to the verdict upon 
 the issue." 2 
 
 1 Statutes similar to the English c. 176, § 21 ; Michigan, 2 Comp. Laws, 
 
 act liave been passed, and are in force, 1857, c. 151; Wisconsin, R. S. 1858, 
 
 in many of the American States ; c. 135, § 12. 
 
 Pennsylvania, Act April 26, 1855 2 As to actions under the Passen- 
 
 (Laws 1555, p. 309) ; Iowa, R. S. gers' Act, 1855, see that act, 18 & 19 
 
 1860, p. 705, § 4111 (2500); Mis- Vict. c. 119, § 2. As to notice of 
 
 souri, Gen. Stat. 1865, c. 147, p. 601 ; action, venue, and general issue, § 92. 
 
 Illinois, Act Peb. 12, 1853 ; Laws See the act passed in Massachusetts 
 
 (1862), p. 80; Ohio, R. S. (1860) p. (Act of 1840, c. 89). That statute 
 
 1139 ; Connecticut, Gen. Stat. tit. i. enacts that, " if the life of any person, 
 
 §§ 97, 98 ; Rhode Island, R. S. 1857, being a passenger, shall be lost by 
 
ACTIONS AGAINST AND BY CAKRIERS. 679 
 
 In dealing with the answer to the question who may sue, 
 under our present head, in actions against the carriers of pas- 
 sengers it would have been inexcusable to have omitted all 
 mention of these important statutory enactments, and it is 
 equally necessary to allude to some of the cases in which the 
 expressions contained in the above clauses have received a 
 more definite connotation, and, in doing so, we shall not con- 
 fine ourselves strictly to cases in which carriers were defend- 
 ants, as the question has not so much to do with the actual 
 employment in connection with which the accident causing 
 death occurred as with the negligence which was the cause of 
 the accident. 
 
 SBC. 702. Rule in Read v. The Great Eastern Railway 
 Company. — In one case, in which a mother sought reparation 
 for the loss of her son from a master of the works whose de- 
 fault had been the cause of the accident, it was held that, as 
 the mother had a legal claim on her son for support, and as it 
 appeared that he actually was supporting her at the time of 
 his death, her claim was valid. 1 But an illegitimate child is 
 not within the contemplation of the statute, under section 2. 2 
 In the case of a husband suing for compensation on the death 
 of his wife, occasioned by negligence, it is not necessary to 
 disclose or allege in the declaration any pecuniary damage 
 suffered by him beyond the mere claim of damages. 3 It has 
 been held that in an action by the representatives of a de- 
 ceased party the declaration need not negative the existence 
 of any relations entitled to compensation other than those for 
 
 reason of the negligence or careless- to go to the widow and the other to 
 
 ness of the proprietor or proprietors the children of the deceased ; but if 
 
 of any railroad, steamboat, stage-coach, there shall be no children, the whole 
 
 or of common carriers of passengers, to the widow ; and if no widow, to 
 
 or by the unfitness or gross negligence heirs, according to the law regulating 
 
 or carelessness of their servants or the distribution of intestate personal 
 
 agents in this commonwealth, such estate among heirs." 
 proprietor or proprietors and common 1 Weems v. Mathieson, 4 Macq. 
 
 carriers shall be liable to a fine not ex- H. L. Cas. 215. 
 
 ceeding five thousand dollars, nor less 2 Dickinson v. North-Bastem Rail, 
 
 than five hundred dollars, to be recov- Co., 2 H. & C. 735 ; 33 L. J. Exch. 91. 
 ered by indictment to the use of the 8 Chapman ■». Rothwell, 27 L. J. 
 
 executor or administrator of the de- Q. B. 315 ; 4 Jur. n. s. 1180. See 
 
 ceased person for the benefit of his Pennsylvania B. B. Co. v. Goodman, 
 
 widow and heirs, one moiety thereof 62 Penn. St. 329. 
 
680 THE LAW OP CARRIERS. 
 
 whose benefit the action purports to be brought. 1 The case of 
 Read v. The Great Eastern Railway Company 2 is of impor- 
 tance in indicating who may and who may not sue. There the 
 declaration was by a widow against a railway company for 
 negligence, whereby her husband, a passenger, was injured, 
 and in consequence died. The company pleaded that in the 
 lifetime of the deceased they had paid him, and he accepted a 
 sum of money in satisfaction and discharge of all claims and 
 causes of action which he had against them ; and the court 
 held that the plea was good, as the cause of action was the 
 negligence of the company, which had been satisfied in the 
 deceased's lifetime, and his death did not give a fresh cause of 
 action to his widow. 3 
 
 Sec. 703. Persons to be sued. — We have already said 
 almost enough concerning this subject, but a few matters re- 
 main to be noted in this place. Some difficulty might be ex- 
 pected to arise in connection with passenger traffic on railway 
 lines where one company has running powers over another 
 company's lines ; and the fact that there are decisions on the 
 point proves that doubts must at one time have existed in cer- 
 tain minds as to the law applicable to such cases. Past doubts 
 are paths to present certainties, and now it is clear that where 
 a railway company has contracted with a passenger they are 
 answerable for the negligence of another company over whose 
 lines they have contracted to carry him ; i and it has been held 
 that, 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 have run- 
 ning powers over the part of the line in question. 5 
 
 1 Barnes v. Ward, 9 C. B. 392 ; 2 Lancashire & Yorkshire Bail. Co., 12 
 C. & K. 661 ; 19 L. J. C. P. 194. L. T. n. s. 356. 
 
 2 3 L. R. Q. B. 555 ; 16 W. R. * Great Western Bail. Co. v. Blake, 
 1040 ; 18 L. T. n. s. 82. 7 H. & N. 987 ; 31 L. J. Exch. 346 ; 
 
 8 See also Pym v. Great Northern Buxton v. North-Eastern Bail. Co., 3 
 
 Bail. Co., 4 B. & S 396 ; Franklin v. L. R. Q. B. 549 ; Thomas v. Rhym- 
 
 Routh-Eastern Bail. Co., 3 H. & N. ney Rail. Co., 5 L. R. Q. B. 226. See 
 
 211 ; Dalton v, South-Eastern Rail, also John v. Bacon, 5 L. R. C. P. 437. 
 
 Co., 4 C. B. n. s. 296 ; Elinn v. Per- * Ayles v. South-Eastern Bail. Co., 
 
 kins, 32 L. J. Q. B. 10; Gellard v. 37 L. J. Exch. 104; 3 L. R. Exch. 
 
ACTIONS AGAINST AND BY CARRIERS. 681 
 
 SEC. 704. Where Action under Lord Campbell's Act main- 
 tainable. — In connection with this subject, the answer to the 
 question where an action under Lord Campbell's Act (9 & 10 
 Vict. c. 93) is maintainable, is not unimportant. We have 
 seen that the wording of the act is clear in giving the action 
 to the representatives of 'a person killed by negligence, only 
 when, had he survived, he himself would have been entitled to 
 maintain an action at common law. 1 Consequently, if in an 
 action where death is alleged to have been caused by the neg- 
 ligence of the defendant's servants, it is shown that the de- 
 ceased, by his own negligence and carelessness, contributed to 
 the accident, the defendant would be entitled to a verdict. 2 In 
 all cases, therefore, where it is proposed to bring an action 
 against a carrier under this act for the death of an individual, 
 which would not have happened but for the negligence of the 
 carrier, it is of the greatest importance to ascertain whether 
 any negligent act upon the part of the deceased was of such a 
 nature as to place him in the position to be injured and killed 
 by the defendant's negligence, for if there was any such act 
 upon his part the action will not lie. 3 This leaves us in a 
 position to consider shortly the -subject of contributory or 
 conductive negligence, and the legal principles which are ap- 
 plicable to it, in so far as passenger traffic is concerned. No 
 action will lie for the consequences of a negligent act where 
 the party complaining has, by his own want of due care and 
 caution, been in any degree contributory to the misfortune. 4 
 
 SEC. 705. Contributory Negligence. — An action may be 
 brought and damages recovered for an injury sustained by a 
 collision of carriages if the collision is due wholly to the neg- 
 ligence of the driver of the defendant's vehicle. In such a 
 
 146. See also Berket v. Whitehaven 4 Witherley v. Regent's Canal Co., 
 
 Junction Rail. Co., 4 H. & N. 730 ; 12 C. B. u. s. 2 ; 3 F. & E. 61 ; Cole- 
 
 28 L. J. Exch. 348. man v. Soutli-Eastern Rail. Co., 4 H. 
 
 1 Sec. 1, and Senior ». Ward, 5 Jur. & C. 699 ; 12 Jur. n. s. 944 ; Waite 
 N. s. 172 ; 28 L. J. Q. B. 139. v. North-Eastern Railway Co., 4 Jur. 
 
 2 Tucker t\ Chaplin, 2 C. & K. 730. n. s. 1300 ; 27 L. J. Q. B. 417 ; af- 
 8 See also Dakin v. Brown, 8 C. B. firmed on appeal, 5 Jur. n. s. 936 ; 
 
 92; 18 L. J. C. P. 344; and Wigmore 28 L. J. Q. B. 258. 
 v. Jay, 5 Exch. 354. 
 
682 THE LAW OP CARRIERS. 
 
 case the action may be in trespass. It matters not whether 
 the act which was the immediate cause of the injury was done 
 intentionally or through negligence, so long as the act com- 
 plained of is the direct, and not merely the indirect, cause of 
 the injury. 1 In a case in which it appeared that the defendant, 
 while driving on the wrong side of the road, it being dark, 
 drove by accident into the plaintiff's curricle, it was held that 
 the injury which the plaintiff had sustained having been im- 
 mediate from the act of the driving of the defendant, trespass 
 might be maintained. 2 And in the case of Hopper v. Reeve, 3 
 it was held that it is a direct trespass to injure the person of 
 another by driving a carriage against the carriage wherein 
 such person is sitting, although the last-mentioned carriage is 
 not the property nor in the possession of the person injured. 
 Where, however, the negligence of the defendant's servant, 
 and not the defendant personally, caused the injury, the action 
 must be in case. 4 Thus, if the agent of A. negligently drove 
 the carriage of A. against that of B., the agent would be liable 
 in trespass, and A. would be liable in case for the negligence of 
 his servant. 5 If, on the other hand, the agent of A. wilfully 
 drove A.'s carriage against that of B., without the assent of A., 
 the latter would not be responsible. 6 
 
 Sec. 706. Evidence.- — Where the plaintiff brings his action 
 against the carrier for refusal to carry, it will be necessary for 
 him to prove that the carrier is a common carrier of passen- 
 gers, as evidenced by his public profession, advertisements, or 
 the like, and either that there was an express contract, which 
 may be proved by the payment of his fare, the booking of a 
 place, or the fact that he was permitted to take his place in 
 the conveyance by the defendant, or a general invitation to all 
 comers upon the part of the carrier. He should also prove 
 room in the defendant's vehicle, readiness to pay his fare, and 
 
 1 Covell v. Laming, 1 Camp. 497. 6 Morley v. Gainsford, 2 H. Bl. 
 
 2 Leame v. Bray, 3 East, 593. 441. 
 
 8 7 Taunt. 698. 6 Macmanns ». Crickett, 1 East, 
 
 4 See Moreton v. Hardern, 4 B. & 106. See also Croft v. Alison, 4 B. & 
 
 C. 223. See also Vose (Admx.) v. Aid. 590 ; Gregory v. Piper, 9 B. & C. 
 
 Lancashire & Yorkshire Kail. Co., 37 591. 
 
 L. J. Exeh. 249. 
 
ACTIONS AGAINST AND BY CAERIEES. 683 
 
 the fitness of his own condition. In the case of an express 
 contract with the plaintiff, the want of room in his convey- 
 ance will not excuse the carrier. The defendant's refusal 
 must be proved, and any special damage which has arisen to 
 the plaintiff by reason of such refusal. The rules applicable 
 in all these cases are precisely similar to those which we have 
 considered in reference to the carriers of goods. Where the 
 plaintiff complains of injuries caused by the negligence of the 
 defendant, he must prove the negligence. It is not incumbent 
 on the carrier to show that he used reasonable care. 1 Where 
 the accident is of such a nature as to afford a presumption of 
 negligence, — as where a railway locomotive ran off the rails, 2 
 — it will be sufficient to prove the accident ; but in many 
 cases negligence will not be presumed from such a casualty, 
 and then it will be necessary to prove the negligence itself. 
 Overloading, causing an accident, is sufficient proof of negli- 
 gence. 3 Where the accident happened in foggy weather, it 
 was not held to be presumable that the accident was sufficient 
 indication of negligence. 4 As to whether the defendant is the 
 proper person to be made defendant, and the evidence neces- 
 sary to support it, several cases referred to below will be in- 
 structive. 5 
 
 SEC. 707. In the Case of Carriers by Water. — As to the 
 evidence in actions against carriers of passengers in ships 
 little need be said. In an action for negligently steering a 
 ship, whereby she was wrecked, and the plaintiff lost his pas- 
 sage in her, it was held that no evidence could be given of a 
 specific act of negligence which is not the foundation of the 
 action, but that evidence that the master had often expressed 
 his conviction that the officer to whom he gave charge of the 
 
 1 Marsh v. Home, 5 B. & C. 327 ; * Crofts v. Waterhouse, 3 Bing. 319. 
 Israel v. Clark, 4 Esp. 259. 6 Barford v. Nelson, 1 B. & Ad. 
 
 2 Carpue v. London & Brighton 571 ; Stables v. Eley, 1 0. & P. 614; 
 Rail. Co., 5 Q. B. 747; Christie v. Strotheru.Willan, 4 Camp. 24; Tucker 
 Griggs, 2 Camp. 79 ; Curtis v. Drink- v. Walpole, 14 East, 226 ; Smith v. 
 ■water, 2 B. & Ad. 169. Euge, 3 Camp. 406 ; Eraser v. Hop- 
 
 8 Israel v. Clark, 4 Esp. 259. But kins, 2 Taunt. 5 ; Cooper v. South, 4 
 see Aston v. Heaven, 2 Esp. 533 ; Taunt. 802; Tweed v. Martin, 2 Camp. 
 Wakeman v. Robinson, 1 Bing. 319. 107 ; Ditchburn v. Spracklin, 5 Esp. 31. 
 
684 
 
 THE LAW OP CARRIERS. 
 
 ship was incompetent for his situation was admissible. It 
 was also held to be allowable to call experienced nautical men, 
 and ask them whether in their judgment particular facts which 
 had been proved amounted to gross negligence. 1 
 
 Sec. 708. Damages. — We come now to the question of 
 damages. We have already seen 2 that in many cases the jury 
 must be left to their common sense in the application of the 
 principle laid down in Hadley v. Baxendale, and if they do so 
 the court will not disturb the verdict. 8 In a railway accident, 
 where the plaintiff's eye was injured by collision, which was 
 due to the negligence of the defendants, and affected with 
 chronic inflammation which was likely to impair the sight 
 permanently, Lord Campbell left it to the jury to say what 
 was the fair amount of damages, and they gave the plaintiff 
 500Z. 4 In all such cases it is of course most difficult to com- 
 
 1 Walton v. Nesbit, 1 C. & P. 70. 
 But see Sills v. Brown, 9 C. & P. 601. 
 As to the statutory provisions, see 17 
 & 18 Viet. c. 104, 5 126 ; 18 & 19 
 Viet. c. 119, §§ 54, 89 to 90 and 91. 
 
 2 Ante, p. 672. 
 
 8 Day ». Holloway, 1 Jur. 794; 
 Williams v. Currie, 1 B. & C. 841. 
 
 4 Plant v. Oxford & Worcester Rail. 
 Co., "Times," 5 Eeb. 1856, quoted 
 in Powell on Carriers. In Grindle v. 
 Eastern Express Co., 67 Me. 313, 
 it was held that the carrier could not 
 be charged with the full loss, where 
 the plaintiff might, by reasonable dili- 
 gence on his own part, have averted 
 snch loss in a measure. In that case 
 it appeared that one Wardwell in his 
 lifetime procured an insurance upon 
 his life in the Continental Life Insur- 
 ance Company, the semi-annual pre- 
 mium on which was about to become 
 due, and Wardwell delivered to the 
 defendant's agent at Castine the sum 
 of $24, to be forwarded to Belfast 
 and there delivered to the agent of 
 the company to pay the premium. 
 The defendant failed to deliver the 
 
 money, and in consequence thereof, 
 the policy lapsed and became void. 
 The plaintiff, as administrator of 
 Wardwell's estate, Wardwell having 
 died within a year after the lapse of 
 the policy, brought this action to re- 
 cover the amount of the policy of the 
 defendant, on the ground that the 
 policy was invalidated through its 
 loss. The court held that the com- 
 pany was not liable for the full amount 
 of the policy, but only for its surren- 
 der value at the time of the lapse, 
 upon the ground that Wardwell took 
 no steps to have the policy reinstated, 
 and the plaintiff gave no evidence tend- 
 ing to show that there was anything 
 at that time in the state of Wardwell's 
 health or physical condition which 
 would have prevented such reinstate- 
 ment. 
 
 Virgin, J., in delivering the opin- 
 ion of the court, said : " On April 15, 
 1870, the Continental Life Insurance 
 Company assured the life of the plain- 
 tiff's intestate for his sole use, in the 
 sum of one thousand dollars, for the 
 term of sixteen years or until his de- 
 
ACTIONS AGAINST AND BY CARRIERS. 
 
 685 
 
 pute what would be a fair amount to allow to a plaintiff who 
 has suffered a personal injury. Unlike goods, a man has not 
 
 cease, in case of his death before that 
 time ; and the company, by their 
 policy under seal, of that date, did 
 covenant with the assured, to pay him 
 the sum insured within ninety days 
 after he shall hare been insured the 
 term mentioned, or in case he should 
 die before that time, then to his wife 
 Edna, if living, otherwise to the legal 
 representatives of the assured. Being 
 an endowment policyfor sixteen years, 
 it was primarily intended to be for the 
 benefit of the assured himself. And 
 being a covenant under seal, no one 
 but the assured or his legal represen- 
 tative could maintain an action upon 
 it, he being the only party in whom 
 the legal interest was vested; Hink- 
 ley v. Fowler, 15 Me. 285 ; Elynn v. 
 North American Life Insurance Co., 
 115 Mass. 449. This is not an action 
 against the insurance company for a 
 breach of any covenant contained in 
 the policy ; but an action on the case 
 against the defendants as common car- 
 riers of goods, for an alleged violation 
 of their duty in failing to seasonably 
 deliver to one Beale, of Belfast, agent 
 of the insurance company, a certain 
 sum of money sent through them by 
 the plaintiff's intestate on May 8, 
 1873, for the purpose of paying his 
 semi-annual premium due on his policy 
 May 15, 1873. 
 
 " The defendants do not deny their 
 receipt of the money in the capacity 
 mentioned. Being such carriers, and 
 their general obligation depending up- 
 on their public profession (Johnson v. 
 Midland Rail. Co., 4 Exch. 367), they 
 were bound, in the absence of any spe- 
 cial agreement, to receive the money 
 and carry and deliver it, within a rea- 
 sonable time, at whatever place di- 
 rected within the route which they 
 
 hold out to the public as theirs, and 
 no further. There their common-law 
 liability ceases. Perkins v. Portland, 
 S„ & P. R. R. Co., 47 Me. 573, 589 ; 
 Hales v. London & North-Western 
 Rail. Co., 4 B. & S. 66. They might 
 contract to carry further to any point 
 beyond their regular line; or might 
 simply undertake to deliver to a con- 
 necting carrier ; in which latter event 
 their liability would cease with a safe 
 carriage and prompt delivery ; for they 
 would then have done all the law and 
 all their contract required. Perkins 
 v. Portland, S., & P. R. R. Co., supra ; 
 Skinner v. Hall, 60 Me. 477 ; Planta- 
 tion No. 4 v. Hall, 61 Me. 517. The 
 proof of a contract for carriage beyond 
 their route should be clear. Nutting 
 v. Connecticut R. R. Co., 1 Gray 
 (Mass.), 502. But it may be express 
 or by implication; by direct or cir- 
 cumstantial evidence ; by words, con- 
 duct, or usage. Gray v. Jackson, 51 
 N. H. 9, 11; s. c. 12 Am. Rep. 1; 
 Knapp v. United States & Canada Ex- 
 press Co., 54 N. H. 348, and cases 
 supra. Receiving goods marked or di- 
 rected to some point beyond their regu- 
 lar route is not sufficient evidence of an 
 implied contract to carry them to that 
 place. Pendergast o. Adams Express 
 Co., 101 Mass. 120. Where the con- 
 signor accepts a special contract, it is 
 no answer that he did not know its 
 terms ; for in the absence of fraud, im- 
 position, or deceit, he is conclusively 
 presumed to understand its terms and 
 legal effect. Squire v. New York Cen- 
 tral R. R. Co., 98 Mass. 239 ; Grace 
 v. Adams, 100 Mass. 505 ; s. c. 1 Am. 
 Rep. 131 ; Belger v. Dinsmore, 51 
 N. Y. 166 ; s. c. 10 Am. Rep. 575 ; 
 Snider v. Adams Express Co., 63 Me. 
 376. 
 
686 
 
 THE LAW OP CARRIERS. 
 
 a cost price and a marketable value, and in many cases the 
 injuries done may be irreparable by any money payment. 
 
 " The defendants claim that Belfast 
 is not within their route ; that they 
 made no contract, and neither by con- 
 duct nor usage created any obligation 
 to deliver the money outside of their 
 route ; that Castine is the most con- 
 venient point on their line whence pub- 
 lic communication is had with Belfast, 
 and that they delivered the money the 
 next day after its receipt to the usual 
 means of conveyance between Castine 
 and Belfast. If these facts appear at 
 the trial, they will constitute a good 
 defence. Any special contract in the 
 premises must be shown by the plain- 
 tiff. By the terms of the report, if 
 the action is maintainable on the facts 
 as claimed by the plaintiff, what is the 
 measure of damages against the ex- 
 press company P ' The plaintiff claims 
 that at the time the money was deliv- 
 ered to the defendants' agent, he was 
 informed and knew for what purpose 
 it was sent to Beale.' Upon this hy- 
 pothesis we are of the opinion that 
 primarily the defendants would be lia- 
 ble for the net value of the policy on 
 May 15, when it lapsed and became 
 void, qualified as hereinafter men- 
 tioned. It had a surrender value 
 which the company would have paid. 
 It could have been assigned by the 
 consent of all concerned. Then the 
 assured — for whose sole benefit it was 
 primarily issued — was alive. The 
 wife was no party to it. She simply 
 had an equitable interest therein de- 
 pending upon the contingency of her 
 husband's decease prior to May 15, 
 1886, and the seasonable payment of 
 the semi-annual premiums to the date 
 of his death. When the policy lapsed, 
 the contingency of his death had not 
 occurred, and the assured alone was 
 injured. The general rule of damages 
 
 in an action on the case against a com- 
 mon' carrier for the non-delivery of 
 goods is their value when and where 
 they should have been delivered, wilh 
 interest thereon from that date; and 
 if money be the article transported, the 
 measure of damages is the principal 
 sum with interest. So, where the de- 
 livery is negligently delayed, the car- 
 rier is liable for the diminution in their 
 market value, which occurred during 
 the delay. Weston v. Grand Trunk 
 Kail Co., 54 Me. 376. Although 
 this rule includes such profits as de- 
 pend upon market values, it excludes 
 all such uncertain, contingent profits 
 as may result merely from a private or 
 special speculation, especially when 
 they are the subject of some collateral 
 undertaking. Bridges v. Stickney, 38 
 Me. 361. While this is the general 
 rule in the absence of special stipula- 
 tions, it may be modified by circum- 
 stances. The courts in England as 
 well as in this country have adopted 
 substantially the doctrine of the civil 
 law, and applied it alike to breaches 
 of contract and violations of duty. 
 'When the debtor,' says Pothieb, 
 ' cannot be charged with fraud, and is 
 merely in fault for not performing his 
 obligation, . . he is only liable for 
 the damages and interest which might 
 have been contemplated at the time of 
 the contract; for to such alone the 
 debtor can be considered as having in- 
 tended to submit. In general, the par- 
 ties are deemed to have contemplated 
 only the damages and interest which 
 the creditor might suffer from the non- 
 performance of the obligation in re- 
 spect to the particular thing which is 
 the object of it, and not such as may 
 have been incidentally occasioned by 
 it. . . . Sometimes the debtor is lia- 
 
ACTIONS AGAINST AND BY CAKRIEES. 
 
 687 
 
 Can 500Z. be said to be compensation for the loss of an eye ? 
 Or what is the value of a leg ? x 
 
 ble for the damages and interest of the 
 creditor, although extrinsic ; as when 
 it appears they were contemplated in 
 the contract, and that the debtor sub- 
 mitted to them either expressly or 
 tacitly, in case of non-performance.' 
 1 Poth. on Oblig. 161, 162. Chan- 
 cellor Kent also declared that 
 'damages for breach of contract are 
 only those which are incidental to, 
 and directly caused by, the breach, and 
 may reasonably be supposed to have 
 entered into the contemplation of the 
 parties.' 2 Kent, Com. (12th ed.) 480, 
 note. 
 
 " So in this State Weston, J., said: 
 'In general, the delinquent party is 
 holden to make good the loss occa- 
 sioned by bis delinquency. But his 
 liability is limited to direct damages, 
 which, according to the nature of the 
 subject, may be Contemplated or pre- 
 sumed to result from his failure. Re- 
 mote or speculative damages, although 
 susceptible of proof, or deducible from 
 the non-performance, are not allowed.' 
 Miller v. Mariners' Church, 7 Me. 51. 
 This was reaffirmed in True v. Interna- 
 tional Telegraph Co., 60 Me. 9, 25; 
 s. c. 11 Am. Rep. 156, 166 ; Bartlett 
 v. Western Union Telegraph Co., 62 
 Me. 209; s. c. 16 Am. Rep. 437. 
 The leading and famous case upon this 
 subject in England is Hadley v. Bax- 
 endale, 9 Bxch. 353, decided in 1854. 
 In that ease Aldekson, B , said : 
 " Where two parties have made a con- 
 tract which one of them has broken, 
 the damages which the other party 
 
 ought to receive in respect of such 
 breach of contract should be such as 
 may fairly and reasonably be consid- 
 ered either arising naturally, i. e. ac- 
 cording to the natural course of things 
 from such breach of the contract itself, 
 or such as may reasonably be supposed 
 to have been in the contemplation of 
 both parties at the time they made the 
 contract, as the probable result of the 
 breach of it.' The action was against 
 a common carrier for negligent delay 
 in delivery ; and the rule here enun- 
 ciated has been followed in numerous 
 English cases against carriers, and of 
 failure to deliver goods on contract of 
 purchase, or to manufacture and de- 
 liver personal property, &c. Black- 
 burn, J., in Cory v. Thames Iron 
 Works, &c. Co., L. R. 3 Q B. 181, 
 186, stated the rule in brief, thus : 
 'Damages are to be what would be 
 the natural consequences of a breach 
 under circumstances which both par- 
 ties were aware of.' And Lord Camp- 
 bell said that the rule in Hadley v. 
 Baxendale merely affirmed what was 
 to be found in 2 Kent, Com., &c ; 
 Smeed v. Foord, 1 El. & El. 602. 
 
 " The latest English case which has 
 come under observation is Simpson v. 
 London & North- Western Rail. Co., 
 Q. B. Div. 24 W. R. 294. The plain- 
 tiff attended agricultural fairs with 
 samples of cattle spiee, &e., of which 
 he was the manufacturer. The de- 
 fendants received these samples from 
 the plaintiff's agent on a certain fair- 
 ground to be forwarded, by a certain 
 
 1 The damages for death or injury 
 to passengers by sea-going ships are 
 regulated by Act of Parliament. See 
 17 & 18 Vict. c. 104, § 510, and 18 & 
 19 Vict. c. 119, § 73. See also Boyce 
 
 v. Bayliffe, 1 Camp. 58. But these 
 provisions refer only to sea-going ships, 
 and the damages recoverable in other 
 cases are governed by the same rules 
 which apply in ordinary actions. 
 
688 
 
 THE LAW OP CAEEIBRS. 
 
 SEC. 709. Principle of Measure of Damages. — Illustration. — 
 Recovery for Pain. — Recovery for Loss of Business. — The prin- 
 
 day named on the consignment note, 
 to a certain other fair-ground when 
 and where a cattle-fair was to be held. 
 The goods did not arrive until the fail- 
 was closed; and the court held that 
 the plaintiff was entitled to recover the 
 loss of profit he would have gained on 
 the orders received through the exhi- 
 bition of his samples at the show, and 
 for his loss of time in waiting at the 
 latter place for the arrival of the goods. 
 Cockbuen, C. J., said : ' I think it is 
 now settled that wherever the prospect 
 of loss of profits was either expressly 
 brought to the knowledge of the car- 
 rier, or the goods were received under 
 such circumstances that he ought rea- 
 sonably to have inferred their nature 
 and destination, so that the use of 
 them might be within the contempla- 
 tion of both parties, then the plaintiff 
 is entitled to recover damages for the 
 loss of profits he would have made if 
 the contract had been duly carried 
 out.' The general rule in Hadley v. 
 Baxendale has been recognized and 
 applied by the courts in most, if not 
 all, of the States of this Union. Cut- 
 ting v. Grand Trunk Kail. Co., 13 
 Allen (Mass.), 381, 384; Scott v. 
 Boston & New Orleans Steamship Co., 
 106 Mass. 468 ; Griffin ». Colver, 16 
 N. Y. 489 ; Hamilton v. McPherson, 
 28 N. Y. 72 ; Booth v. S. D. R. M. 
 Co., 69 N. Y. 487, 492, 493. There- 
 fore, while the loss of another's money 
 received for transportation by a car- 
 rier, without reasonable knowledge of 
 the purpose for which it is sent, will 
 lay the carrier under obligation merely 
 to refund the principal sum with inter- 
 est, still, when it is seasonably sent 
 for the specific purpose of paying the 
 sender's premium on his life-policy 
 which will lapse if the money be not 
 
 paid at the particular time, and the 
 carrier is reasonably informed in rela- 
 tion to the premises, and has a rea- 
 sonable time to perform the duty 
 undertaken, but negligently fails to 
 perform it, the law will justly hold him 
 primarily, at least, for the net value of 
 the policy which lapsed in consequence 
 of his negligence. From their knowl- 
 edge of the special circumstances, both 
 parties must be presumed to have con- 
 templated such consequences when the 
 money was deposited with the carrier. 
 We consider Favor v. Philbrick, 5 
 N. H. 358, a parallel case, where, in 
 consequence of the carrier's unreason- 
 able delay in the delivery of the plain- 
 tiff's account against a third person, it 
 became barred by the statute of limi- 
 tations, the carrier was held liable for 
 the amount of the account. So, where 
 an express company received from the 
 plaintiff a promissory note against a 
 third person which they agreed to col- 
 lect of the maker, but during the com- 
 pany's negligent delay in pressing the 
 collection the maker failed and the 
 note became worthless, the company 
 were held for the amount of the note. 
 Knapp v. United States & Canada Ex- 
 press Co., 55 N. H. 348. To the 
 same purport see, also, Parks v. Alta 
 California Telegraph Co., 13 Cal. 422 ; 
 Bryant v. American Telegraph Co., 1 
 Daly, 575. 
 
 " But the law makes it incumbent 
 upon a person for whose injury an- 
 other is responsible to use ordinary 
 care and take all reasonable measures 
 within his knowledge and power to 
 avoid the loss and render the conse- 
 quences as light as may be; and it 
 will not permit him to recover for such 
 losses as by such care and means might 
 have been prevented. Miller v. Mari- 
 
ACTIONS AGAINST AND BY CARRIERS. 
 
 ciple which must govern such decisions is to be brought out 
 of such theoretical considerations and brought to more prac- 
 tical grounds of computation. A man's value in money to 
 himself or others may be said to be what he can earn ; and 
 that fact will in many cases be the ground for determining, 
 how much his price as a laborer is impaired, and how much 
 is consequently due to him as a compensation for any injury 
 he may have sustained. Some cases will make this clearer. 
 Where the plaintiff had been given into custody on a charge 
 that he had not paid his fare, which proved unfounded, and 
 was taken without delay before a magistrate by whom he was 
 discharged, 501. damages was held liberal but not excessive. 1 
 On a policy of insurance guaranteeing a certain sum in the 
 event of injury, by a railway accident, the damages are con* 
 
 ners' Church, supra; True v. Interna- 
 tional Telegraph Co., supra; Bartlett 
 v. Western Union Telegraph Co., su- 
 pra. The principle is illustrated by 
 Shaw, C. J., in Loker v. Damon, 17 
 Pick. (Mass.) 284, where in trespass 
 for removing a few rods of fence, the 
 cost of repairing it, and not the injury 
 to the following year's crop caused by 
 cattle passing through the gap in the 
 fence, was held to be the measure of 
 damages in favor of the plaintiff who 
 knew the fence was down. So, where 
 the plaintiff's cow was made danger- 
 ously sick by eating poisoned hay pur- 
 chased of the defendant, it was held to 
 be the duty of the plaintiff to employ 
 the best remedies within her reason- 
 able reach, at reasonable trouble and 
 expense, to cure "the cow. French v. 
 Vining, 102 Mass. 132; s. c. 3 Am. 
 Rep. 440. See, also, Eastman v. San- 
 burn, 3 Allen (Mass.), 594 ; Sherman 
 i>. Pall River Iron "Works, 2 Allen 
 (Mass.), 524 ; Scott v. Boston & New 
 Orleans Steamship Co., supra; Suth- 
 erland v. Wyer, 67 Me. 69. 
 
 " The same doctrine is held in New 
 York, in Hamilton v. McPherson, 28 
 N. Y. 72, 77 ; Milton v. Hudson River 
 
 Steamboat Co, 37 N. Y. 210; Bald- 
 win v. United States Telegraph Co, 
 45 N. Y. 744, 753 ; s. c. 6 Am. Rep. 
 165. And in Iowa, in Mather v. But- 
 ler County, 28 Iowa, 253 ; Simpson 
 v. City of Keokuk, 34 Iowa, 568. 
 
 " Some insurance companies are 
 accustomed to reinstate the assured 
 without expense, in case of accidental 
 lapse, especially when the policy, like 
 the one in question, has run but a 
 short time. All will reinsure on pay- 
 ment of a premium based on increased 
 age, if, on re-examination, the health 
 of the assured remains unimpaired. 
 Whether or not the assured made any 
 effort of the kind, during the fifteen 
 months he survived the policy, the case 
 does not find. We think, however, it 
 was incumbent on him to use the care 
 and adopt all reasonable means in the 
 premises known to him. And unless 
 he can show some legal excuse for not 
 doing so, such as want of knowledge, 
 failing health, failing circumstances of 
 the company, &c, he should not re- 
 cover damage for such loss as he 
 might have prevented." 
 
 1 Goff v. Great Northern Rail. Co, 
 30 L. J. Q. B. 148. 
 
 44 
 
690 THE LAW OP CARRIERS. 
 
 fined to compensation for bodily pain and suffering, and the 
 amount of the medical attendant's bill ; and damages for loss 
 of time and profits are not recoverable. 1 In that case, Pol- 
 lock, C. B., remarked that it was " unmanly, though undoubt- 
 edly legal, to claim damages for pain or suffering." 2 As in 
 the case of goods, where a carrier must know that they are 
 wanted at a certain time, he is held to have constructive notice 
 of the necessity, and, therefore, to have had in contemplation 
 the possible results, as loss of profit or the like, so must car- 
 riers of passengers be aware, in most cases, that the time of 
 the people they carry is of importance to them, as an element 
 of the profit of any trade or profession which they may pur- 
 sue, and, consequently, they may be held to have constructive 
 notice of that fact, and to have the consequences of a breach 
 of their contract in view at the time they entered upon it ; 
 and, therefore, if through an accident such a person, being a 
 passenger, is injured, the jury may consider the profits which 
 he would have derived from his business or occupation, and 
 may give compensation accordingly. 3 
 
 1 Theobald v. Railway Assurance 416; and see Kimsey v. Crocker, 18 
 
 Co., 10 Exch. 45 ; 23 L. J. Exch. 249 ; Wis. 74. 
 
 Georgia Bridge Association v. Loonies, 2 Where the injury is of a per- 
 
 20111.235; Hunt i\ Hoyt, 20111. 540; manent nature, the future must be 
 
 Morse v. Auburn & Syracuse R. R. Co., had regard to in the computation of 
 
 10 Barb. (N. Y.) 621 ; Ransom v. New damages as well as the past. Erink v. 
 
 York & Erie R. R. Co., 15 N. Y. 415 ; Schroyer, 18 111. 416 ; Slater v. Rink, 
 
 Keys v. Devlin, 3 E. D. S. (N. Y. C. P.) 18 111. 527- The suffering which will 
 
 518; West v. Eorrest, 22 Mo. 344. follow the trial as well as what has 
 
 That physical pain and mental distress gone before may be proved. Aaron v. 
 
 are to be had regard to in computing Second Avenue R. R. Co., 2 Daly 
 
 the amount of damages. Seger v. (N. Y.), 127. 
 
 Barkhamsted, 22 Conn. 290 ; Masters 8 Per Page Wood, V. C, in De 
 
 v. Town of Warren, 27 Conn. 293 ; Mattos v. Gibson, 30 L. J. Chan. 146. 
 
 Lawrence v. Housatonic R. R. Co., 29 See also Illinois Central R. R. Co. v. 
 
 Conn. 390 ; Mason v. Inhabitants of Barron, 5 Wall. (U. S.) 90. It has 
 
 Ellsworth, 32 Me. 271 ; Eairchild v. been held that, as in actions of tort the 
 
 Call Stage Co., 13 Cal. 599. As to quantum of damages is very much 
 
 the irrecoverability of the possible within the discretion of the jury, evi- 
 
 future profits of a business which may dence of the nature and extent of the 
 
 on account of the injury have to be plaintiff's business and the general 
 
 foregone. Ballon v. Earnum, 11 Allen, rate of profit he has realized there- 
 
 (Mass.) 73 ; Caldwell v. Murphy, 1 from, which has been interrupted by 
 
 Duer (N. Y.), 233; affirmed, 11 N. Y. the defendant's wrongful act, is prop- 
 
ACTIONS AGAINST AND BY CARRIERS. 691 
 
 SEC. 710. Cases under Lord Campbell's Act. — These prin- 
 ciples will be more clearly understood in connection with their 
 application to certain cases which have arisen under the 9 & 
 10 Vict. c. 93. In an action founded on that act by a wife, 
 husband, parent, or child 1 of a person killed by misfeasance, 
 the jury, in estimating the damages, cannot take into consid- 
 eration mental suffering or loss of society, but must give com- 
 pensation for pecuniary loss only. In a case in which this 
 was decided, it was argued that, as the first section states that 
 the newly given action may be maintained, although death has 
 ensued, in those cases where if the party had survived he 
 would have had a right of action ; so here the party injured, 
 if he had recovered, would have been entitled to a solatium 
 for wounded feelings, pain, and suffering ; therefore his repre- 
 sentatives were entitled to damages of a similar nature. But 
 Coleridge, J., in delivering the judgment of the court, said : 
 " It will be evident that this act does not transfer this right of 
 action to his (the deceased's) representatives, but gives to 
 the representatives a totally new right of action on different 
 principles. . . . 
 
 SEC. 711. Damages not a Solatium. — "The measure of 
 damages is not the loss or suffering of the deceased, but the 
 injury resulting to his family." 2 In England the injury sus- 
 tained by the accidental death of a relative must, in order to 
 be compensated by a jury, be of a pecuniary character, and 
 the jury cannot give damages for affliction. 3 In Scotland the" 
 
 erly received, not on the ground of its 1 Duckworth v. Johnson, 29 L. J. 
 
 furnishing a measure of damages to be Exch. 25. 
 
 adopted by the jury, but to be taken 2 Blake v. Midland Rail. Co., 18 
 
 into consideration by them in the ex- Q. B. 93, 110- Scotch decisions are 
 
 ercise of that discretion. New Jersey only received in England if the law 
 
 Express Co. v. Nichols, 33 N. J. L. upon which they turn is the same. 9 
 
 434. See also Allison v. Chandler, 11 & 10 Vict. c. 93, dees not apply to 
 
 Mich. 543 ; Taylor v. Dustin, 43 N. H. Scotland. 
 
 493 ; Somans v. Brown, 5 R. I. 299 ; 8 See, as to American law, Braun- 
 
 Wade v. Leroy, 20 How. (U. S.) 34 ; berger v. Cleis (Penn.), 4 Am. Law 
 
 Lincoln v. Saratoga & Schenectady R. Reg. (n. s.) 587 ; Pennsylvania R. R. 
 
 R. Co., 23 "Wend. (N. Y.) 425. See Co. v. Zebe, 33 Penn. St. 318; Pennsyl- 
 
 also Ingram v. Lawson, 6 Bing. N. C. vania R. R. Co. v. Vandever, 36 Penn. 
 
 212. St. 298 ; North Pennsylvania R. R. Co. 
 
692 THE LAW OF CARRIERS. 
 
 jury administers & solatium for wounded feelings. 1 In the case 
 of Armsworth v. The South-Eastern Railway Company, 2 it was 
 decided that the damages are not to be estimated according to 
 the value of the deceased's life calculated by annuity tables, 
 but that the jury should give what they consider a fair com- 
 pensation ; and it was also decided in that case that a proper 
 question for the jury in such cases is, whether the circum- 
 stances are such that if the deceased, instead of meeting his 
 death, had been only wounded in consequence of the conduct 
 of the defendant, he would have been entitled to damages for 
 the injury. 
 
 Sec. 712. Nominal Damages. — The action cannot be sup- 
 ported to recover nominal damages, 3 and it is clear that damages 
 of a pecuniary nature must be shown, but that the damages are 
 not to be given merely in reference to the loss of a legal right. 
 They should be calculated in reference to a reasonable expec- 
 tation to pecuniary benefit, as of right or otherwise, from the 
 continuance of the life of the deceased. 
 
 Sec. 713. What gives Right to Recover. — Thus in an ac- 
 tion by a father for the death of his son : the father was an 
 old man, getting infirm, who lived in the lodge of an hospital, 
 and was employed to carry coals round the wards, for which 
 he was paid 3s. 6d. a week — whether under a contract or by 
 way of gratuity did not appear ; the son was a young man, 
 earning good wages, who did not live with his father, but was 
 in the habit of gratuitously assisting him by carrying the coals 
 
 v. Robinson, 44 Perm. St. 175 ; Ohio vania R. R. Co. v. Goodman, 82 Penn. 
 
 & Mississippi R. R. Co. v. Tindal, 13 St. 329. 
 
 Ind. 366 ; M'Intyre v. New York * Paterson v. Walace, 1 Macq. H. 
 
 Central R.R. Co., 47 Barb. (N.Y.) 515; L. Cas. 748. See as to the latter 
 
 Donaldson v. Mississippi & Missouri point, Ersk. Inst. 1074, B. 4, tit. 4, 
 
 R.R. Co., 18 Iowa, 280; City of Chicago § 105; Black v. Caddell, Diet. Decis. 
 
 v. Major, 18 111. 349; Telfer v. North- vols. 31 and 32, p. 13905 ; Brown ». 
 
 em Rail. Co., 30 N. J. L. 188 ; State Macgregor, Fao. Collect, lib. 26, 1813, 
 
 of Maryland to the use of Mary pp. 232, 233 ; Children of Forrest v. 
 
 Coughlan v. Baltimore & Ohio R. R. Clerkington, Diet. Decis. vols. 31 and 
 
 Co.,' 5 Am. Law Reg. (n. s.) 397; Quin 32, p. 13903, &c. 
 
 v. Moore, 15 N. Y. 432; Lehman v. s 11 Jur. 758. 
 
 Brooklyn, 29 Barb. (N. Y.) 234; Cor- 8 Boulter v. Webster, 13 W. R. 
 
 sant ».' Griffin, 48 111. 410; Pennsyl- 289. 
 
ACTIONS AGAINST AND BY CARRIERS. 693 
 
 round the wards for him, but the father not being in need was 
 not supported by him in any other way : it was held that the 
 father had such a reasonable expectation of pecuniary benefit 
 from the continuance of his son's life as would enable him to 
 maintain the action. But, the jury having found a verdict for 
 him with 151. damages, it was held that the damages were exces- 
 sive. 1 In another case it was held that legal liability alone is not 
 the test of injury in respect of which damages may be recovered, 
 but that the reasonable expectation of pecuniary advantage by 
 the relation remaining alive may be taken into account by the 
 jury, and damages may be given in respect of that expectation 
 being disappointed, and the probable pecuniary loss thereby 
 occasioned. 2 That case was very similar to the last in all 
 particulars, and the judgment of Pollock, C. B., in that case 
 is applicable to both. " The statute does not," he remarked, 
 " in terms say on what principle the action it gives is to be 
 maintainable, nor on what principle the damages are to be as- 
 sessed, and the only way to ascertain what it does, is to show 
 what it does not, mean. Now it is clear that damage must be 
 shown, for the jury are to ' give such damages, as they think 
 ' proportioned to the injury.' It has been held that the dam- 
 ages are not to be given as a solatium, but are to be given in 
 reference to a pecuniary loss. That was so decided in Blake 
 v. The Midland Railway Company (18 Q. B. 93). 
 
 Sec. 714. The Principle of Damages allowed to Relatives. — 
 Funeral Expenses. — " It is also clear that the damages are not 
 to be given merely in reference to the loss of a legal right, for 
 they are to be distributed among relations only, 3 and not to all 
 individuals sustaining such a loss ; and accordingly the practice 
 
 1 Franklin v. South-Eastern Rail. In another case it was decided that if 
 
 Co., 3 H. & N. 211 ; 4 Jur. n. s. 565. the services of the deceased might have 
 
 a Daltonw. South-Eastern Rail. Co., been, of some value to the next of kin, 
 
 4 C. B. N. s. 296 ; 4 Jur. n. s. 711 ; a nonsuit should not be directed. 
 
 27 L. J. C. P. 227 ; Condon v. Great M'Intyre v. New York Central R. R. 
 
 Southern & Western R. R. Co., 16 Ir. Co., 43 Barb. (N. Y.) 552. 
 L. R. n. s. 415. See also Tilley v. s See also Dickins v. New York 
 
 Hudson R. R. Co., 29 N. Y. 252 ; Old- Central R. R. Co., 23 N. Y. 158 ; and 
 
 field v. New York & Harlem R. R. Co., Illinois Central R. R. Co. v. Barron, 
 
 14 N. Y. 310 ; Pennsylvania R. R Co. v. 5 Wall. (U. S.) 90. 
 M'Closkey's Adm'r, 23 Penn. St. 526. 
 
694 THE "LAW OF CARRIERS. 
 
 has not been to ascertain -what benefit could have been en- 
 forced by the claimants had the deceased lived, and give dam- 
 ages limited thereby. If then the damages are not to be 
 calculated on either of these principles, nothing remains ex- 
 cept that they should be calculated in reference to a reasonable 
 expectation of pecuniary benefit, as of right, or otherwise, from 
 the continuance of the life." In the case of Dalton v. The 
 South-Eastern Railway Company, 1 Willes, J., approved of 
 the decision just quoted, and with regard to a point which did 
 not arise in the former case, he remarked : " As to the ex- 
 penses of the funeral and mourning, however, we think they 
 ought not to be allowed. The subject-matter of the statute is 
 compensation for injuries by reason of the relative not being 
 alive, and there is no language in the statute referring to the 
 cost of the ceremonial of respect paid to the memory of the 
 deceased in his funeral, or in putting on mourning for his 
 loss." 
 
 SEC. 715. How Damage must have accrued. — Besides these 
 points, it is important to note that actual damage must have 
 accrued from the death of the deceased. In one case it was 
 held that proof of death and of the relationship of the parties 
 does not give a right to nominal damages. In that case an 
 action was brought by a father for injury resulting from the 
 death of his son. It appeared that the father was a working 
 mason, and that the son was a boy of fourteen, who had earned 
 four shillings a week for about a year or two, but at the time 
 of his death was without employment. There was no evidence 
 of the cost of boarding and clothing the boy. The judge left 
 it to the jury to say whether the father had sustained any 
 pecuniary loss by the death of his son, and they found a ver- 
 dict for him, with 501. damages. It was held in the Court of 
 Exchequer that as there was evidence for the jury the father 
 was entitled to retain the verdict for the amount. 2 Where a 
 person, possessed of an income of 4,000Z. a year, met his death 
 while travelling upon a railway, through the negligence of the 
 
 1 4 C. B. n. s. 296, at 306 ; 27 " Duckworth v. Johnson, 4 H. & 
 L. J. C. P. 227. N. 653; 5 Jur. u. s. 630; 29 L. J. 
 
 Exch. 25. 
 
ACTIONS AGAINST AND BY CARRIERS. 695 
 
 company's servants, and it appeared in evidence that the bulk 
 of his property was settled upon his eldest son, a smaller por- 
 tion being reserved for the benefit of his wife and younger 
 children, it was held that his representatives might maintain 
 an action for the benefit of the wife and younger children in 
 respect of the injury arising to them from a pecuniary loss 
 occasioned by the death, although that pecuniary loss would 
 not have resulted from the accident to the deceased had he 
 lived. 1 In such a case as this it is evident that, from the 
 nature of the settlement, the widow and younger children sus- 
 tained a greater loss by the death than they might have done 
 had the circumstances been different, and, therefore, it is for 
 the jury to regard the damage which has been suffered by the 
 respective members of the family, in so far as their reasonable 
 expectations of pecuniary benefit,, in case the death had not 
 occurred, goes, notwithstanding the fact that the estate of the 
 deceased survived for the benefit of his family in general. 2 ' 
 In the case just referred to it was further held that in the 
 case of a widow and younger children of a deceased person 
 (who was seised in fee-tail of landed estates, passing at his 
 death to his eldest son), the damages arising from the loss of 
 education, and the comforts and conveniences of life, are not 
 too remote, but may be the subject of pecuniary estimate, and 
 are consequently within the statute. 3 Again, in an action for 
 negligence, whereby the plaintiff's wife was killed, Lord 
 Ellenborough said : " The jury could only take into consid 
 eration the bruises which the plaintiff had himself sustained, 
 and the loss of his wife's society, and the distress he had suf- 
 fered on her account from the time of the accident till the 
 moment of her dissolution." And he added, "In a civil 
 court, the death of a human being could not be complained 
 
 1 Pym v. Great Northern Rail. Co., 8 It is evident that in estimating 
 8 Jur. n. s. 819 ; 31 L. J. Q. B. 249 ; damages it is of the utmost import- 
 affirmed on appeal, 4 B. & S. 396 ; 32 anee that the jury should consider the 
 L. J. Q. B. 377. exact situation, annual earnings, health, 
 
 2 Baker v. Bolton, 1 Camp. 493 ; habits, family, and estate of the de- 
 and see Kramer v. Waymark, 1 L. R. ceased. Chicago, &c. R. R. Co. v. 
 Exch. 241; 4 H. & C. 427; 35 L. J. Morris, 26 111. 400. 
 
 Exch. 148. 
 
THE LAW OP CARRIERS. 
 
 of as an injury, and in this case the damages, as to the plain- 
 tiff's wife., must stop with the period of her existence." 
 
 SEC. 716. Jurisdiction of Court of Admiralty. — The 24 Vict. 
 c. 10, § 7, enacts that " the High Court of Admiralty shall 
 have jurisdiction over any claim for damage done by any ship." 
 In a recent case it was held that the word " damage " does not 
 include loss of life and personal injury, and that consequently 
 the above section confers no jurisdiction upon the High Court 
 of Admiralty to entertain a suit under Lord Campbell's Act 
 (9 & 10 Vict. c. 93), from damages resulting from negligence 
 in the management of a vessel which has caused personal 
 injury and death. 1 The law which is applicable to the recov- 
 ery of damages for loss of life or personal injuries to passen- 
 gers in ships is not the same as that which is applicable in the 
 case of carriers by land. No person can bring an action for 
 compensation until the Board of Trade has instituted and 
 completed an inquiry or has refused to do so. 2 The mode 
 of procedure at such an inquiry, if the Board of Trade thinks 
 fit to institute it, 3 is set forth at length in other sections of the 
 act. 4 The summoning of witnesses and impanelling of the 
 jury are to be enforced in the manner provided for by 
 the Lands Clauses Consolidation Act, 1845. 5 At the same 
 time, the Passengers' Act, 1855, provides that the remedy for 
 breach of contract for not carrying, or for loss of or non- 
 delivery of luggage, will be the same as in. the case of carriers 
 by land. 6 
 
 Sec. 717. 31 & 32 Vict. o. lia — Before quitting the subject 
 of damages, and at the same time going out of the front door 
 of our subject, which is opened by the last page, it is necessary 
 to mention a provision of a recent statute with reference to 
 this subject. By 31 & 32 Vict. c. 119, § 25, 7 it is enacted 
 " that where a person has been injured or killed by an acci- 
 
 1 Smith v. Browu, Asp. Mar. Law s Ibid. § 507. 
 Cas., vol. i. pt. ii. p. 56. See also The * Ibid. §§ 507, 508. 
 George and Richard, 24 L. T. Rep. 6 8 Vict. c. 18. 
 
 n. s. 717, and Asp. Mar. Law Cas., 6 18 & 19 Vict. c. 119, § 58. See 
 vol. i. pt. ii. p. 50. also § 73. 
 
 2 17 & 18 Vict. c. 104, § 512. ' See also § 26. 
 
ACTIONS AGAINST AND BY CARRIERS. 697 
 
 dent on a railway, the Board of Trade, upon application in 
 writing, made jointly by the company from whom compensa- 
 tion is claimed, and the person, if he is injured, or his repre- 
 sentatives, 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." 
 
APPENDIX. 
 
 [As the forms of pleading given in this Appendix by the author are of practi- 
 cal value in most of the States, because they embody the substantial grounds 
 essential to be stated to uphold or defeat an action, they are given entire.] 
 
 INTRODUCTION TO PLEADING. 
 
 The present system of pleading is founded upon that which 
 has existed for many centuries ; but so great have been the 
 alterations effected by the Common-Law Procedure Act, 1852, 
 that the practical working of pleadings has undergone a con- 
 siderable change. 
 
 The result of these alterations is, that every declaration and 
 subsequent pleading, which clearly and distinctly states all 
 such facts as are necessary to sustain the action, plea, or rep- 
 lication, will suffice ; and it is unnecessary that the facts of 
 the case should be stated technically and formally, so long as 
 they are in conformity with the statutes and rules. In accord- 
 ance with this principle, -all statements which need not be 
 proved, such as the statements of time, quantity, quality, and 
 value, where they are immaterial, the statement of losing and 
 finding, and bailment, in actions for goods or their value, 
 the statement of acts of trespass having been committed with 
 force and arms, and against the peace of our Lady the Queen, 
 the statement of promises which need not be, proved, as 
 promises in indebitatus counts, and mutual promises to per- 
 form agreements, and all statements of a like kind, are' now 
 to be omitted. 
 
 » By section 52 of the above statute it is enacted, that if any 
 pleading be so framed as to prejudice, embarrass, or delay the 
 fair trial of the action, the opposite party may obtain an order 
 from the court or a judge to have it struck out or amended. 
 
700 INTRODUCTION TO PLEADING. 
 
 The declaration is the first step in the pleadings ; in this the 
 plaintiff states his cause of action, and he is not confined to 
 the statement of one cause only, for the declaration may con- 
 sist of several counts, and each of these may state a separate 
 and distinct cause of action, with this exception : that eject- 
 ment and replevin cannot be joined together, or with any other 
 form of action. 
 
 The principal parts of the declaration are the title, venue, 
 and body, — setting forth the cause of action, and the conclu- 
 sion stating the redress sought. The title of every pleading 
 consists of the name of the court in which the action is 
 brought, and of the day of the month and year when the same 
 is pleaded. 
 
 The venue is inserted in the margin, — thus, London to 
 wit, or; London. In the county named in the margin the 
 action will be tried, unless an order is made, by consent or 
 otherwise, to change it. The venue is either transitory or 
 local, — it is transitory where the cause of action might have 
 happened anywhere, in which case the plaintiff may lay his 
 venue wherever he chooses. In an action upon a contract, 
 the venue would be of this description. Local venue is when 
 the cause of action could have happened in one place only, — 
 as in trespass to land, and the venue must be laid in the 
 county where the close is situated. To ascertain under what 
 circumstances the venue can be changed, reference may be 
 made to the several works on pleading. 
 
 The body of the declaration sets out the cause of action. 
 Some ordinary forms are given in the schedule to the Common 
 Law Procedure Act, 1852. The declaration concludes with a 
 statement of the sum sought to be recovered, and, if required, 
 the claim for a writ of mandamus or injunction. The claim 
 should be sufficient to include the largest amount of debt or 
 damages likely to be recovered, for the jury cannot give more 
 than the amount thus claimed; should the jury assess the 
 damages at a greater amount, the plaintiff may move for a 
 new trial, and for leave to amend the declaration, which might 
 be granted on payment of costs. 
 
 The plea is the defendant's answer to the declaration, and 
 
INTRODUCTION TO PLEADING. 701 
 
 is either in abatement or in bar. The former does not contain 
 any substantial answer to the declaration, but shows that some 
 informality has been committed, and points out the right 
 mode of procedure. These pleas must be verified by affidavit, 
 which must be delivered with the pleas ; and they must be 
 delivered within four days after the receipt of the declaration. 
 This defence is not often resorted to, as it is discouraged by 
 the courts, as tending to throw technical < difficulties in the 
 plaintiff's way. If the plea be for non-joinder of a person also 
 liable, it must be accompanied by a statement that he is resi- 
 dent within the jurisdiction, and an affidavit must be made, 
 stating his place of residence. A plea in bar is, on the other 
 hand, a substantial answer to the action ; it is either a traverse 
 or a plea in confession and avoidance. A plea is said to be a 
 traverse when it denies some essential part of the declaration ; 
 there are several kinds of traverses, the most ordinary is that 
 which may be called a common traverse. This consists of a 
 denial by way of express contradiction, in forms of the allega- 
 tion traversed. A plea is said to be in confession and avoid- 
 ance, when it admits the facts stated in the declaration to be 
 true, but alleges new facts which obviate or repel their legal 
 effect. 
 
 If the defendant admits the cause of action stated in the 
 declaration, he may now, in almost all cases, except actions 
 for assault and battery, false imprisonment, libel, slander, 
 malicious arrest or prosecution, or debauching of the plain- 
 tiff's daughter or servant, pay money into court by way of 
 compensation or amends, and plead that such sum is sufficient 
 to satisfy the plaintiff's claim. By 4 & 5 Ann. c. 16, the de- 
 fendant is at liberty to plead several matters by leave of the 
 court, and by the Common-Law Procedure Act, 1852, § 84, 
 the following pleas, or any two or more of them, may be 
 pleaded together without leave : A plea denying any contract 
 or debt alleged in the declaration ; tender as to part ; Statute 
 of Limitations ; set off ; bankruptcy of defendant ; discharge 
 under an Insolvent Act ; plene administravit ; plene adminis- 
 travit prater ; infancy ; coverture ; payment ; accord, and satis- 
 faction; release; not guilty; a denial that the property, an 
 
702 INTRODUCTION TO PLEADIXG. 
 
 injury to which is complained of, is the plaintiff's ; leave and 
 license ; son assault demesne. 
 
 By section 86, if several pleas are improperly pleaded to- 
 gether, judgment may be signed. The several pleas should be 
 numbered consecutively. 
 
 The General issue. — There are three pleas usually spoken 
 of as general issues in actions on contracts: nunquam in- 
 debitatus, non assumpsit, and non est factum; but nul tiel 
 record might also be mentioned. By rules 8, 12, 17, Trinity 
 Term, 1853, all matters in confession and avoidance must be 
 specially pleaded. 
 
 The most common form of the general issue in actions for 
 wrongs is the plea of not guilty. By rule 16, Trinity Term, 
 1853, " In actions for torts, the plea of not guilty shall operate 
 as a denial only of the breach of duty, or wrongful act alleged 
 to have been committed by the defendant, and not of the facts 
 related in the indictment; and no other defence than such 
 denial shall be admissible under that plea, all other pleas in 
 denial shall take issue on some particular matter of fact 
 alleged in the declaration." 
 
 The subsequent steps in pleading are the replication, con- 
 taining the plaintiff's answer to the plea ; the rejoinder, the 
 defendant's answer to the replication; the surrejoinder; the 
 rebutter; the surrebutter; and so on. The pleadings seldom 
 reach the latter, but they sometimes do, and there is nothing 
 to prevent their going beyond it. By section 79 of the Com- 
 mon-Law Procedure Act, 1852, either party may plead in 
 answer to the plea or subsequent pleading of his adversary, 
 that he joins issue thereon, and such shall be deemed to be an 
 issue. Thus the pleadings go on, step by step, till at last the 
 parties come, as they necessarily must, to a direct contradic- 
 tion. When the pleadings are complete, issue is said to be 
 joined. 
 
 Demurrer. — At each step in the proceedings, either party 
 may, if he think fit, instead of pleading replying, &c, demur 
 to the last pleading of his adversary ; that is, he may say it 
 is not sufficient in law. Special demurrers were abolished 
 by the Common-Law Procedure Act, 1852, therefore general 
 
FORMS OP PLEADINGS. 703 
 
 demurrers alone remain. Either party may, by leave of the 
 court or a judge, plead and demur to the same pleading at the 
 same time. 
 
 Equitable Defences. — By section 83 of the Common-Law 
 Procedure Act, 1854, a defendant or plaintiff in replevin may, 
 in any cause in which, if judgment were obtained, he would 
 be entitled to relief against such, on equitable grounds, plead 
 the facts which entitle him to such relief by way of defence ; 
 and, by section 85, the plaintiff may reply on equitable 
 grounds. 
 
 .FORMS OP PLEADINGS IN ACTIONS BY AND 
 AGAINST CARRIERS. 
 
 Commencement of a Declaration. 
 
 In the Queen's Bench (in the margin), [or Common Pleas, 
 or Exchequer of Pleas]. 
 
 The day of a. d. 1872. 1 ~ 
 
 (Venue.) A. B. by his attorney \or in person] sues 
 
 C. D. for that [here state the special ground of action, com- 
 mencing a second or subsequent count] . And also for that, 
 &c. [If the plaintiff has any claim recoverable under an in- 
 debitatus count, such count should be added to the declara- 
 tion, commencing] And the plaintiff also sues the defendant 
 for money payable by the defendant to the plaintiff for, &c. 
 [Conclude as follows :] And the plaintiff claims £ ? 
 
 1 Every declaration and other plead- & W. 373 ; Mills v. Brown, 9 Dowl. 
 
 ing must be entitled of the proper 151; Newham v. Hanney, 5 Dowl. 
 
 court, and of the day of the month in 259. The court or judge may give 
 
 the year when the same was pleaded, leave to amend. Com. Law Proc. Act, 
 
 Com. Law. Proc. Act, 1852 and 1854. 1852, § 222. 
 
 The pleadings should he entitled on 2 The plaintiff may join counts in 
 
 the face ;. entitling them on the back contract and tort, as well as any cause 
 
 is not sufficient ; and if not properly of action, except replevin or ejectment, 
 
 entitled, a pleading may be set aside provided they are by and against the 
 
 as irregular. Bipling v. Watts, 4 same parties, and in the same rights. 
 
 Dowl. 290; Hodgson v. Rennell, 4 M. C. L. P. Act, 1852, § 41. 
 
704 FORMS OF PLEADINGS. 
 
 FORMS OF DECLARATIONS BY AND AGAINST 
 CARRIERS BY LAND. 1 
 
 (A) 
 
 Counts in Contract. 
 Forms of Indebitatus Counts (by a Carrier). 
 Money payable by tbe defendant to the plaintiff for the 
 conveyance of goods by the plaintiff for the defendant at his 
 request. 
 
 (B) 
 For Freight of Goods. 2 
 [Commencement as in page 703. J For freight ["primage 
 and average " if claimed'] for the conveyance by the plaintiff 
 for the defendant at his request, of goods in ships, and for 
 money found to be due from the defendant to the plaintiff on 
 account stated between them. 
 
 (C) 
 
 For Lighterage. 
 [ Commencement as ante, page 703.] For the lighterage and 
 the shipping conveyance and landing of goods by the plaintiff 
 for the defendant at his request [conclude with account stated 
 as ante, form (B)]. 
 
 (D) 
 For the Tonnage of Goods. 
 [ Commencement as ante, page 703.] For the tonnage of 
 goods carried by the plaintiff on a certain canal in boats and 
 vessels for the defendant, at his request 8 [conclude with ac- 
 count stated as inform (B)]. 
 
 1 The common count for work charge the consignee or indorsee of 
 suffices, but if money is not to be paid the bill of lading. Moller v. Young, 
 for the carriage of the goods, the above 25 L. J. Q. B. 94. The above form 
 count will not be supported. Brace- suffices against the indorsee of a bill 
 girdle w. Hincks, 9 Exch. 381 ; 22 L. of lading (Dougal v. Kemble, 3 Bing. 
 J. Exch. 128. 383) ; either the owner or the master 
 
 2 This is the form given by the may sue for the freight. 
 C. L. P. Act, 1852, but a delivery » 3 Went. 70. 
 must be proved where it is sought to 
 
FORMS OP PLEADINGS. 705 
 
 (E) 
 
 Foe Demurrage. 1 
 [ Commencement as ante, page 703.] For the demurrage of 
 a ship of the plaintiff, kept on demurrage by the defendant 
 [conclude with account stated as inform (B)]. 
 
 (F) 
 For Wharfage and Warehouse-room. 
 [ Commencement as ante, page 703.] For wharfage and 
 warehouse-room for goods provided by the plaintiff for the 
 defendant, at his request [account stated as inform (B)]. 
 
 For Passa'ge Monet. 
 [ Commencement as in page 703.] For the passage of the 
 defendant on board a vessel of the plaintiff, at the request of 
 the defendant [account stated as inform (B)]. 
 
 Against a Carrier for not delivering Goods according to the Direction 
 of the Plaintiff. 
 
 For that in consideration that the plaintiff would deliver to 
 the defendant, as and being a carrier of goods for hire, certain 
 goods to be by the defendant carried from to and 
 
 there delivered according to the directions of the plaintiff, for 
 reward to the defendant, the defendant promised the plaintiff 
 to carry the said goods from to aforesaid, and 
 
 there deliver the same according to the directions of the plain- 
 tiff in that behalf, and the plaintiff delivered the said goods 
 to the defendant, and the defendant received the same for the 
 purpose and on the terms aforesaid, and the plaintiff directed 
 
 1 The above count is sufficient special (per Pakke, B., Horn o. Ben- 
 
 where there is a contract expressed or susan, 2 M. & Rob. 326 ; 9 C. & P. 
 
 implied, not under seal (Lear v. Yates, 709, and per Lord Abinger, Kell v. 
 
 3 Taunt. 389) ; if no contract, and the Anderson, 10 M. & W. 499). If the 
 
 defendant has detained the ship longer detention is ex delicto the above form 
 
 than is allowed by usage of the port will not be proper. See Harrison v. 
 
 of discharge, the count should be "Wilson, 2 Esp. 707. 
 
 45 
 
706 FORMS OF PLEADINGS. 
 
 the defendant to deliver the said goods at a certain place in 
 aforesaid called ; and all conditions were ful- 
 
 filled, and all things happened, and all times elapsed necessary 
 to entitle the plaintiff to have the said goods delivered by the 
 defendant at the last-mentioned place ; yet the defendant did 
 not deliver the said goods at the last-mentioned place, whereby 
 the said goods were lost to the plaintiff (A.), and the plain- 
 tiff claims £ - 1 
 
 Declaration against a Carrier for not carrying and delivering Goods 
 (or for not carrying and delivering them within a Reasonable 
 Time). 
 
 That in consideration that the plaintiff would deliver to the 
 defendant, as and being a carrier of goods for hire, certain 
 goods to be by the defendant carried from to , and 
 
 there delivered for the plaintiff, for reward, to the defendant, 
 the defendant promised the plaintiff to carry the said goods 
 from to aforesaid, and there deliver the same for 
 
 the plaintiff (within a reasonable time in that behalf), and 
 the plaintiff delivered the said goods to the defendant, and the 
 defendant received the same, for the purpose and on the terms 
 aforesaid, and all conditions were performed, and all things 
 happened, and all times elapsed, necessary to entitle the plain- 
 tiff to have the said goods carried and delivered as aforesaid, 
 yet the defendant did not carry and deliver the said goods for 
 the plaintiff as aforesaid (within a reasonable time in that be- 
 half), whereby the plaintiff was deprived of the use of the said 
 goods for a long time, and the same were diminished in value, 
 and the plaintiff claims £ ? 
 
 1 As to the destination of the goods damage sustained by the plaintiff must 
 being altered by the consignee, see be averred, or he 'will not be allowed 
 London & North- Western Rail. Co. v. to give it in evidence. A like count, 
 Bartlett, 7 H. & N. 400 ; 31 L. J. stating special damage, will be found 
 Bxeh. 92. A like count will be found in Hadley «. Baxendale, 9 Exch. 341. 
 in Scothorn v. South Staffordshire As to what damage is remote, see 
 Rail. Co., 8 Exch. 341. Hadley v. Baxendale, and Frances v. 
 
 2 A count may be added for loss of Gandet, 40 L. J. 121 Q. B., where the 
 market, and thereby damage to the declaration is in trover. 
 
 plaintiff. See next form. Any special 
 
POEMS OP PLEADINGS. 707 
 
 Declaration against a Carrier for not carrying and delivering Goods 
 in Time for a Market. 
 
 That in consideration that the plaintiff would deliver to the 
 defendant, as and being a carrier of goods for hire, certain 
 goods to be by the defendant carried from to , and 
 
 there delivered to the plaintiff in time for a market to be held 
 at mid-day, on the day of , a. d. , for reward to the 
 defendant, the defendant promised the plaintiff to carry the 
 said goods from to aforesaid, and there deliver 
 
 the same to the plaintiff in time for the said market to be so 
 held as aforesaid, and the plaintiff delivered the said goods to 
 the defendant, and the defendant received the same for the 
 purpose, and on the terms aforesaid, and all conditions were 
 performed, and all things happened, and all times elapsed, 
 necessary to entitle the plaintiff to have the said goods carried 
 from to aforesaid, and there delivered to him by 
 
 the defendant at the time aforesaid, yet the defendant did not 
 deliver the said goods to the plaintiff at aforesaid in 
 
 time for the said market there held as aforesaid, whereby the 
 plaintiff was deprived of the use of the said goods, and lost 
 the profits which he would have made by selling them at. the 
 said market, and the benefit of the expense which he incurred 
 in travelling to aforesaid to meet the said goods, and in 
 
 preparing to receive the same, and to sell them at the said 
 market, and the said goods were deteriorated and diminished 
 in value, and the plaintiff was and is otherwise damnified, and 
 the plaintiff claims £ - 1 
 
 Declaration against a Railway Company or other Carrier, under a 
 Special Contract, for Non-delivery, or Loss of, or Injury to Goods. 
 That the plaintiff delivered to the defendant, being a carrier 
 of goods for hire, goods of the plaintiff to be carried by the 
 defendant for the plaintiff from to , and there to 
 
 be delivered by the plaintiff for reward to the defendant in 
 
 1 Against a carrier on a special con- same evening, Pickford v. Grand June- 
 tract to forward perisbable goods the tion Canal Co., 12 M. & W. 766. 
 
708 FORMS OF PLEADINGS. 
 
 that behalf, upon and subject to, amongst other terms and 
 conditions agreed upon by and between the plaintiff and de- 
 fendant, the terms and conditions following, that is to say 
 [here set out such of the conditions as are material] , and the 
 plaintiff says that he has performed all conditions precedent, 
 &c. [general averment of conditions precedent, as in page 706]. 
 And the plaintiff further says, that the. defendant did not 
 deliver the said goods for the plaintiff at aforesaid on 
 
 aforesaid [this must depend upon the time agreed upon by 
 the terms of the special conditions'], and the said goods, by and 
 through the carelessness and negligence of the defendant, be- 
 came and were damaged and injured, although the said goods 
 were not damaged or injured by or through, &c. [here negative 
 any damage or injury to the goods through any of the causes 
 against which the carrier is protected by the terms of the special 
 conditions'] , and by reason of the premises the said plaintiff, &c. 
 [here aver any special damage that the plaintiff has sustained] , 
 and the plaintiff claims £ 
 
 Declaration against a Booking-office Keeper for not taking Care of 
 Goods, and safely delivering them to the Proprietor of the Wagon by 
 which they were directed to be forwarded. 1 
 
 That the plaintiff, at the request of the defendant, caused to 
 be delivered to him a parcel containing goods of great value, 
 and which said parcel was directed to of upon the 
 
 terms then agreed upon between the plaintiff and defendant, 
 that the said parcel should be taken care of and safely and se- 
 curely kept by the defendant for the plaintiff until the same 
 could be delivered by the defendant to the proprietor of a cer- 
 tain wagon [or according to the particular circumstance], com- 
 monly called , or his servant, in order that the same 
 might be safely and securely carried and conveyed in and by 
 the said wagon, from a certain inn [or otherwise] called , 
 situate and being to and there be safely and se- 
 
 1 See another form against a book- caster & Preston Rail. Co., 8 M. & W. 
 ing-offiee keeper, Gilbart v. Dale, 5 A. 422. 
 & E. 543 ; and see Musehamp v. Lan- 
 
FORMS OP PLEADINGS. 709 
 
 curely delivered to the said pursuant to the direction 
 
 aforesaid, for reward, to the defendant in that behalf, and the 
 defendant had and received the said parcel and its contents 
 upon the terms and for the purpose aforesaid [here aver "per- 
 formance of all conditions precedent, as ante, page 706], yet 
 the defendant did not, nor would take due or proper care of 
 the said parcel and its contents aforesaid until the same could 
 be delivered, nor did nor would deliver the same to the pro- 
 prietor of the said wagon, or his servant for the purpose afore- 
 said, but negligently lost the same, and the plaintiff was 
 and is wholly deprived of the use thereof, and the plaintiff 
 claims £ 
 
 Declaration against a Carrier for Loss of Goods. 
 
 That in consideration the plaintiff would deliver to the de- 
 fendant, as being a carrier of goods for hire, certain goods for 
 the plaintiff, to be by the defendant safely carried from 
 to , a and there delivered for the plaintiff for reward to 
 
 the defendant in that behalf, the defendant promised the plain- 
 tiff that he would safely carry the said goods from to 
 aforesaid, and there deliver the same for the plaintiff 
 •as aforesaid, and the plaintiff delivered the said goods to the 
 defendant, and the defendant received the same for the pur- 
 pose and on the. terms aforesaid, and all conditions were 
 performed, and all things happened, and all times elapsed 
 necessary to entitle the plaintiff to have the said goods safely 
 carried from to , and there delivered for him as 
 aforesaid, yet the defendant did not safely carry the said goods 
 from to , and there deliver the same for the plain- 
 
 1 This averment does not seem to Co. ». Collins, 7 H. L. Cases, 194), 
 be necessary, and, at all events, a vari- and though the goods are carried 
 ance could be amended at the trial, partly by water (Wilby ». West Corn- 
 Where railway companies undertake wall Rail. Co., 27 L. J. Exch. 181), 
 to carry goods beyond the limits of unless they limit their responsibility 
 their own railway, they are liable for by special agreement. See also Thomas 
 the uon-delivery (Musehamp v. Lan- v. BJiymney Rail. Co., 6 Law Rep. 
 caster & Preston Rail. Co., 8. M. & Q. B. 266, in error. 
 W. 421, &c. ; Bristol & Exeter Rail. 
 
710 FORMS OP PLEADINGS. 
 
 tiff as aforesaid, whereby the said' goods were wholly lost to the 
 plaintiff, and the plaintiff claims £ , 1 
 
 Declaration against a Railway Company for not providing Trucks to 
 convey Carriages. 
 
 The defendants were possessed of a railway from to 
 
 , and of certain trucks provided by them for the con- 
 veyance of carriages on the said railway for hire, and there- 
 upon, in consideration that the plaintiff would deliver to the 
 defendants certain carriages of the plaintiff, to be conveyed 
 upon the said railway of the defendants from to 
 
 aforesaid for reward to the defendants, the defendants prom- 
 ised the plaintiff to provide trucks for the conveyances of the 
 said carriages, and to convey the said carriages thereon from 
 to aforesaid, and the plaintiff delivered the said 
 
 carriages to the defendants and they received the same for the 
 purpose and on the terms aforesaid, and all conditions were 
 performed, and all things happened, and all times elapsed 
 necessary to entitle the plaintiff to have trucks provided and 
 the said carriages conveyed as aforesaid, yet the defendants 
 did not provide trucks for the conveyance of the said carriages, 
 nor did they convey the said carriages from to 
 
 aforesaid, whereby the plaintiff was deprived of the use of the 
 said carriages for a long time, and lost the benefit of the ex- 
 pense which he incurred in delivering the said carriages to the 
 defendants, and was put to expense in conveying the said 
 carriages to aforesaid, and the plaintiff claims £ 
 
 Declaration against a Carrier for Damage done to Furniture in 
 
 removing it. 
 
 That in consideration that the plaintiff would employ the 
 defendant to remove and carry from one place to another cer- 
 
 1 A like count, Syms v. CUapliu, 5 A. & E. 631. 
 
POEMS OP PLEADINGS. 711 
 
 tain furniture of the plaintiff for reward to the defendant, the 
 defendant promised the plaintiff to use due care, skill, and 
 diligence in removing and carrying the said furniture as afore- 
 said, and the plaintiff employed the defendant for the purpose 
 and on the terms aforesaid, yet the defendant did not use due 
 care, skill, and diligence in removing and carrying the said 
 furniture as aforesaid, and in so doing broke and injured the 
 same, whereby the said furniture was and is much damaged 
 and lessened in value, and the plaintiff claims £ - 1 
 
 Declaration against a Railway Company for not safely keeping Goods 
 left in their Custody at one of their Stations. 
 
 That in consideration the plaintiff would deliver to the 
 defendants certain goods of the plaintiff to be by the defendants 
 safely and securely kept and redelivered to the plaintiff on re- 
 quest, for reward to the defendants, the defendants promised 
 the plaintiff safely and securely to keep the said goods, and to 
 redeliver the same to plaintiff on request, and the plaintiff 
 delivered to the defendants, and the defendants received the 
 said goods for the purpose, and on the terms aforesaid, and 
 the plaintiff afterwards, and within a reasonable time in that 
 behalf, requested the defendants to redeliver the same to the 
 plaintiff, and all conditions were performed, and all things 
 happened, and all times elapsed, necessary to entitle the plain- 
 tiff to have the said goods safely and securely kept and re- 
 delivered by the defendants to the plaintiff as aforesaid, yet the 
 defendants did not safely and securely keep the same and re- 
 deliver the same to the plaintiff as aforesaid, whereby the said 
 goods were lost to the plaintiff, and he was put to expense in 
 endeavoring to recover possession of them, and the plaintiff 
 claims £ ? 
 
 1 It is not necessary to prove negli- C. B. 839), unless in a case where 
 gence on the part of the carrier, al- there is a special contract, 
 though it be averred (Richardson v. 2 A like count, Van Toll v. South- 
 London & South Coast Rail. Co., 7 Eastern Rail. Co., 12 C. B. n. s. 75; 
 
 31 L. J. C. P. 241. 
 
712 FORMS OP PLEADINGS. 
 
 Declaration against a Railway Company for not forwarding and 
 delivering in due Time the Goods left at one of their Stations to 
 be safely kept and forwarded according to Order. 
 
 That the defendants were carriers of goods for hire, and in 
 consideration that the plaintiff delivered to the defendants at 
 certain goods of the plaintiff to be by them kept and 
 returned, or carried and delivered for him at his option as 
 hereinafter mentioned, for reward to the defendants, the de- 
 fendants promised the plaintiff that they would, at his option, 
 safely and securely keep the said goods for him, and return 
 them to him on request, or carry and deliver them for him to 
 and at such place as he should direct by any order to be given 
 by him to them, and the plaintiff afterwards, and whilst the 
 defendants held the said goods for the purpose, and on the 
 terms aforesaid, directed the defendants, by certain orders 
 given by him to them, to carry the said goods from 
 to aforesaid, and to deliver the same there for the 
 
 plaintiffs, and all conditions were performed, and all things 
 happened, and all times elapsed necessary to entitle the plain- 
 tiff to have the said goods carried from to 
 aforesaid, and there delivered for the plaintiff, according to 
 defendants' said promise in that behalf, yet the defendants did 
 not, within a reasonable time in that behalf, carry the said 
 goods from to aforesaid, and there deliver 
 the same for the plaintiff, whereby the plaintiff was deprived 
 of the use of the said goods for a long time, and the same 
 were deteriorated in value, and the plaintiff claims £ 
 
 1 
 
 COUNTS IN TORT. 
 
 Declaration against a Railway Company for negligently injuring 
 Cattle carried under Contract. 
 
 That the defendants were the owners of the Railway, 
 
 and were possessed of engines, horse-boxes, and other mate- 
 
 1 Count for not delivering goods Western Rail. Co., 2 B. & S. 419 ; 81 
 left at a station within a reasonable L. J. Q. B. 137. 
 time after request, Stallard v. Great 
 
FORMS OP PLEADINGS. 713 
 
 rials for conveying, amongst other things [here insert the par- 
 ticular sort of animal injured'], on the railway as common 
 carriers, that plaintiff delivered to the defendants a 
 to be carried by them for hire in a certain carriage, van, or 
 other vehicle 1 on the railway from to , subject to cer- 
 tain conditions assented to by the plaintiff, and contained in a 
 notice at the foot of the ticket, or way-bill, of the railway 
 company for the conveyance of the , and which 
 
 was in these words : This ticket is issued, subject to [here 
 copy the notice on the back of the ticket or way-bill']. That 
 whilst the was in custody of the defendants, and 
 
 through the improper conduct and gross negligence, and from 
 the want of proper care, skill, and diligence on the part of the 
 defendants, the carriage [or J was propelled on the rail- 
 way against certain trucks with so great violence, that the 
 was seriously damaged, and died in consequence thereof, and 
 the plaintiff claims £ ? 
 
 Declaration against a Booking-office Keeper for losing Goods. 
 
 That the defendant kept an office for receiving and booking 
 goods and delivering the same to certain carriers for the pur- 
 pose of being carried to the places to which the same might 
 respectively be directed, and for keeping and taking care of 
 such goods at the said office until such delivery as aforesaid 
 for reward to the defendant, and thereupon the plaintiff 
 delivered to the defendant at the said office a parcel of the 
 plaintiff to be by the defendant booked and delivered within 
 a reasonable time in that behalf to a certain carrier for the 
 purpose of being carried by him to the place to which the same 
 was directed, and to be kept and taken care of at the said 
 office until such delivery for the plaintiff for reward to the 
 defendant, and the defendant received and had the said parcel 
 for the purpose and on the terms aforesaid, and all conditions 
 
 1 If a horse, put " horse-box." signee had refused to accept them, 
 
 2 For a count against a carrier for see Hudson v. Baxendale, 2 H. & N. 
 not taking care of goods after the con- 575. 
 
714 FORMS OP PLEADINGS. 
 
 were fulfilled, and all things happened, and all times elapsed, 
 necessary to entitle the plaintiff to have the said goods taken 
 care of and delivered as aforesaid, yet the defendant did not 
 deliver the said parcel to the said carrier for the purpose 
 aforesaid within such reasonable time as aforesaid, and the 
 defendant did not in the meantime, and until such delivery, 
 take reasonable care thereof at the said office, and whilst 
 he had the care and custody of the said parcel for the pur- 
 pose aforesaid negligently lost the same, 1 and the plaintiff 
 claims £ . 2 
 
 Declaration against a Common Carrier for Injury to Goods. 
 
 That the plaintiff delivered to the defendant, and the de- 
 fendant received from the plaintiff, certain goods to be carried 
 by the defendants as common carriers, from to , 
 
 and there delivered for the plaintiff for reward to the defend- 
 ant, yet the defendant so negligently carried the same, that by 
 means thereof the said goods were damaged and spoiled, 3 and 
 the plaintiff claims £ 
 
 Declaration against a Gamer for the Wrongful Detention of Goods. 
 
 That the defendant detained from the plaintiff the goods of 
 the plaintiff, that is to say, a [or if a box, put what it 
 
 contained'], and the plaintiff claims a return of the said goods, 
 or their value, 4 and £ for their detention. 
 
 1 If there be any reason to suppose and deterioration in market value, and 
 that the goods were lost by a mis- is not confined to the parts actually 
 delivery, through the wilful negligence damaged. Collard v. South-Eastern 
 of the defendant, a count in trover Rail. Co., 30 L. J. Exch. 394, where 
 should be added. Wyld e. Pickford, see a form. 
 
 8 M. & W. 443, &c. 4 The value of the goods must be 
 
 2 A like count, Gilbart v. Dale, 5 assessed by the jury, and if several 
 A. & E. 543. articles are sought to be recovered, 
 
 8 See Behrens v. Great Northern the value of each should be separately 
 
 Kail. Co., 30 L. J. Exch. 153; affirmed, assessed. Phillips v. Jones, 15 Q. B. 
 
 31 L. J. Exch. 299. The plaintiff is 780. 
 entitled to recover the fall in price 
 
FORMS OF PLEADINGS. 715 
 
 , Declaration against a Common Carrier for refusing to carry Goods. 
 
 That the defendant was a common carrier of goods for hire 
 from to , and the plaintiff, at a reasonable and 
 
 proper time in that behalf, tendered to him at aforesaid, 
 
 at his place of business for the receipt of goods to be carried 
 by him as such carrier, certain goods of the plaintiff, and re- 
 quested the defendant as such carrier to receive the same, and 
 carry them from to aforesaid, and at the last- 
 
 mentioned place to deliver the same for the plaintiff for hire 
 to the defendant, and the plaintiff was then ready and willing, 1 
 and offered to pay to the defendant his reasonable hire in that 
 behalf, whereof the defendant then had notice, and the defend- 
 ant then had sufficient time, means, and convenience to receive 
 and carry and deliver the said goods as aforesaid, and could 
 and ought to have done so, yet the defendant did not, nor 
 would receive and carry the said goods for the plaintiff, and 
 the plaintiff claims £ . 2 
 
 Declaration for not delivering Goods in a Reasonable Time, and for 
 Loss of the Goods. 
 
 For that the defendant was a common carrier of goods for 
 hire from to , and the plaintiff delivered to 
 
 the defendant, and he received as such carrier, goods of the 
 plaintiff [that is to say, a ] , to be carried by the defend- 
 
 ant, as such common carrier, from to aforesaid, 
 
 and there to be delivered by the defendant to the plaintiff 
 
 1 It is not necessary to aver a tender Count, against a railway company 
 of the price of carriage, a readiness to for refusing to carry goods except 
 pay is sufficient. upon unreasonable conditions, Gard- 
 
 2 See special damage alleged in ton v. Bristol & Exeter Rail. Co., 1 B. 
 Pickford v. Grand Junction Rail. Co., & S. 112 ; 30 L. J. Q. B. 273. Tor 
 8 M.. & W. 372. Also, Johnson v. refusing to carry a passenger's luggage, 
 Midland Rail. Co., 4 Exch. 367; Munster v. South-Eastern, i C. B. 
 Crouch v. London & North- Western s. s. 676; 27 L. J. C. P. 308. 
 Rail. Co., 14 C. B. 256 ; Crouch v. 
 
 Great Northern Rail. Co., 9 Exch. 556. 
 
716 POEMS OF PLEADINGS. 
 
 within a reasonable time, in that behalf, for reward, to the 
 defendant, yet the defendant, neglecting his duty as such 
 common carrier, did not safely or securely carry or convey 
 the said goods from to aforesaid, nor safely or 
 
 securely deliver the same there for the plaintiff, although a 
 reasonable time for doing so had elapsed before the com- 
 mencement of this suit, but then negligently and improperly 
 lost the said goods, and the plaintiff claims £ . a 
 
 Declaration against Carriers for not carrying and delivering Goods in 
 Time for a Market. 
 
 That the plaintiff delivered to the defendants, as and being 
 carriers of goods \by railway] from to , certain goods 
 of the plaintiff, to be by them carried from to afore- 
 
 said, and there delivered for the plaintiff in time for a market 
 to be there held, on the day of , a. d. , for 
 
 reward to the defendants, and the defendants, as such carriers, 
 received the said goods for the purpose, and on the terms 
 aforesaid ; and all conditions were performed, and all things 
 happened, and all times elapsed, necessary to entitle the 
 plaintiff to have the said goods carried by the defendants 
 from to aforesaid, and there delivered to him by 
 
 the defendants at the time aforesaid, yet the defendants did 
 not deliver the said goods for the plaintiff at aforesaid 
 
 in time for the said market there held as aforesaid, whereby 
 the plaintiff was deprived of the use of the said goods, and lost 
 the profit which he would have made by selling them at the 
 said market, and the benefit of the expense which he incurred 
 in travelling to aforesaid to meet the said goods, and in 
 
 1 See also, as to not carrying within like count as to cattle, and injury to 
 a reasonable time, Wise v. Great West- cattle by delay, Allday v. Great West- 
 ern Rail. Co., 25 L. J. Exch. 258; ern Rail. Co., 5 B. & S. 903. A count 
 ■ Raphael v. Pickford, 5 M. & G. 551. (including several bailments iu one 
 As to the duty to carry within area- count) for not carrying, by a certain 
 sonable time, see Great Northern Rail, hour, Lord v. Midland Rail. Co., L. R. 
 Co. v. Taylor, 35 L. J. C P. 210. A 2 C. P. 339. 
 
FORMS OP PLEADINGS. 717 
 
 preparing to receive the same, and sell them at the said mar- 
 ket, and the said goods were deteriorated and diminished in 
 value, and the plaintiff claims £ - 1 
 
 COUNTS BT AND AGAINST CARRIERS BY WATER. 
 
 In Contract. 
 
 Declaration on the Indebitatus Count for Freight. 
 
 For money payable by the defendant to the plaintiff for 
 freight for. the conveyance by the plaintiff for the defendant, 
 at his request, of goods in ships [after the word freight, 
 add primage and average, if claimed'] ; and the plaintiff 
 claims £ 
 
 Declaration on the Indebitatus Count for Lighterage. 
 
 ' For money payable by the defendant to the plaintiff for the 
 lighterage, conveyance, shipping, and landing of goods con- 
 veyed in lighters and other vessels, and shipped and landed 
 from the same by the plaintiff for the defendant, at his request, 
 and the plaintiff claims £ 
 
 Declaration on the Indebitatus Count for Demurrage. 
 
 Money payable by the defendant to the plaintiff for the 
 demurrage of a ship of the plaintiff kept on demurrage by 
 the defendant, and the plaintiff claims £ 
 
 1 Counts for delay in carrying, White v. Great Western Rail. Co., 2 
 charging the loss of market as special C. B. v. s. 7 ; Hughes v. Great West- 
 damage, Walker v. York & North em Rail. Co., 14 C. B. 637". 
 Midland Bail. Co., 23 L. J. Q. B. 73; 
 
718 FORMS OP PLEADINGS. 
 
 Declaration on the Indebitatus Count for Tonnage on Canals. 
 
 Money payable by the defendant to the plaintiff for the 
 tonnage of goods conveyed by the. plaintiff for the defendant, 
 at his request, in barges and other vessels. 
 
 Declaration by the Master of a Ship, on the BiU of Lading, against 
 the Consignee of Goods, for not receiving the Goods from the Ship 
 within the Time stipulated by the Bill of Lading. 
 
 That the defendant caused to be shipped on board a ship 
 called the , then lying in the port of , whereof 
 
 the plaintiff was master, goods represented to be in good order 
 and well-conditioned, to be delivered in the like good order 
 and condition at the port of (all and every the dangers 
 
 of the sea and navigation excepted) unto the defendant or his 
 assigns, he or they paying to the plaintiff certain freight for 
 the said goods, and receiving and clearing the said goods from 
 the said ship within days after notice of the ship's arrival, 
 and the plaintiff received the said goods on board the said 
 ship, and agreed with the defendant to deliver to him the 
 said goods and chattels as aforesaid, and although the said 
 vessel afterwards arrived with the said goods in the said port 
 of , and the plaintiff was always ready and willing to 
 
 deliver them to the defendant as aforesaid, of which the de- 
 fendant had notice, and although the plaintiff had performed 
 all conditions precedent on his part, and all things have 
 happened and occurred, and all periods of time have elapsed 
 to entitle the plaintiff to a performance of the defendant's 
 contract, and to enable the plaintiff to maintain this action, 
 yet the defendant did not within the said days, or at any 
 
 other time, accept or clear the said goods from the said ship ; 
 whereby the said ship was for, a long time detained at the said 
 port of . , and the plaintiff incurred expenses in main- 
 
 taining the crew of the said ship during the said time, and 
 
FORMS OP PLEADINGS. 719 
 
 was deprived of the use of the ship and the profits thereof, 
 durjng such time. And the plaintiff claims £ - 1 
 
 Declaration by the Indorsee of a Bill of Lading against the Master 
 for not delivering Goods (18 & 19 Vict. c. Ill, § 1). 
 
 That by a bill of lading made on the day of , 
 
 A. D. , by the defendant, and delivered to G. H., the defend- 
 ant promised the said G. H. that certain goods of the said G. H. 
 in the said bill of lading mentioned, and then shipped , in 
 the port of should be delivered at (certain perils 
 
 and casualties only excepted), to the said G. H. or his assigns, 
 he or they paying freight for the same (with primage and 
 average accustomed), and the said G. H. indorsed the said 
 bill of lading to the plaintiff, to whom the property in the said 
 goods passed, and the delivery of the said goods as aforesaid 
 was not prevented by any of the perils or casualties aforesaid, 
 and all conditions were performed, and all things happened, 
 and all times elapsed necessary to entitle the plaintiff to have 
 the said goods delivered to him at aforesaid, yet the said 
 
 goods were not delivered to the plaintiff at aforesaid, 
 
 whereby the same were wholly lost to the plaintiff. And the 
 plaintiff claims £ ? 
 
 Declaration by the Consignee of Goods against the Master of a Ship, 
 on Bill of Lading, for not delivering. 
 
 That by a bill of lading made on the day of , 
 
 a. d. , by. the defendant, and delivered to the plaintiff, 
 the defendant promised the plaintiff that certain goods of the 
 plaintiff in the said bill of lading mentioned, and then shipped 
 on board the ship , in the port of should be deliv- 
 
 1 For a form of a declaration by an kg and unloading goods therefrom, 
 
 owner, in a special action for the de- Granger v. Dacre, 12 M. & W. 431. 
 tention of the ship, see Horn v. Ben- 2 A like count by the indorsee of a 
 
 susan, 9 C. & P. 709. See a form by bill of lading against the ship-owner, 
 
 the owner of a lighter for not accept- Shand v. Sanderson, i H. & N. 381. 
 
720 FORMS OP PLEADINGS. 
 
 ered at (certain perils and casualties only excepted 1 ), 
 
 to the plaintiff, he paying freight for the same (with primage 
 and average accustomed), and the delivery of the said goods 
 as aforesaid was not prevented by any of the perils or casual- 
 ties aforesaid, and all conditions were fulfilled, and all things 
 happened, and all times elapsed, necessary to entitle the 
 plaintiff to have the said goods delivered to him at afore- 
 
 said, yet the said goods were not delivered to the plaintiff 
 at aforesaid, whereby the same were wholly lost to the 
 
 plaintiff. And the plaintiff claims £ 
 
 Declaration by a Carrier against the Shipper upon an implied Warrant 
 that the Goods shipped were not Dangerous. 
 
 For Form, see Brass v. Maitland, 6 E. & B. 470. 
 
 Count against a Carrier by Water on the implied Promise that his 
 Vessel was Seaworthy. 
 
 For Forms, see Lyon v. Mells, 5 Bast, 428 ; and see, as to 
 this cause of action, Shaw v. York & North-Midland Railway 
 Company, 13 Q. B. 347. 
 
 Declaration against a Carrier for negligently stowing the Goods, 
 whereby they were damaged. 
 
 That in consideration that the plaintiff would deliver to the 
 defendant certain goods of the plaintiff to be carried in a ship 
 of the defendant from to for reward to the de- 
 
 1 This will depend upon the terms fire or robbery, see 17 & 18 Vict, 
 
 of the bill of lading ; other special ex- c. 104, § 503 ; but the master is not 
 
 ceptions are frequently introduced in protected against damage or loss by 
 
 the margin of the bill of lading, and fire or robbery (ibid. § 510) unless the 
 
 these should also be mentioned in the exceptions are introduced into the bill 
 
 declaration. As to the ship-owner's of lading, 
 protection against damage or loss by 
 
FORMS OP PLEADINGS. 721 
 
 fendant, the defendant promised the plaintiff to use due and 
 proper care and skill in stowing the said goods on board of 
 the said ship, and to carry the said goods from to 
 
 as aforesaid (certain p*erils and casualties only excepted), and 
 the plaintiff delivered the said goods to the defendant, and the 
 defendant received and had the same for the purpose and on 
 the terms aforesaid, and the defendant was not prevented 
 from performing his said promise by any of the perils and 
 casualties aforesaid ; yet he did not use due and proper care 
 and skill in stowing the said goods on board of the said ship ; 
 whereby the. said goods were damaged and deteriorated in 
 value, and the plaintiff claims £ - 1 
 
 Declaration by the Owner of a Ship against the Shipper and Con- 
 signee of Goods for not receiving the Goods within a Reasonable 
 Time. 
 
 That in consideration that the plaintiff received on board of 
 his ship called certain goods of the defendant to be by 
 
 the plaintiff carried in the said ship from to and 
 
 there delivered to the defendant (certain perils and casualties 
 only excepted), the defendant paying freight for the same as 
 agreed upon, the defendant promised the plaintiff to receive 
 the said goods at aforesaid from the plaintiff in a rea- 
 
 sonable time after the defendant should have notice of the 
 plaintiff being ready to deliver the same as aforesaid, and the 
 said ship afterwards arrived with the said goods at 
 aforesaid, and all conditions were fulfilled, and all things hap- 
 pened, and all times elapsed, necessary to entitle the plaintiff 
 to have the said goods received by the defendant as aforesaid ; 
 yet the defendant did not nor would receive the said goods 
 within such reasonable time as aforesaid, whereby the said 
 ship was detained at for a long time, and the plaintiff 
 
 was deprived of the use of the said ship, and incurred expense 
 
 1 Like counts, Anderson v. Chap- under a special contract, see Cooke v. 
 man, 5 M. & W. 483. Count for neg- Wilson, 1 C. B. N. s. 153. 
 ligence in loading goods on board 
 
 46 
 
722 FORMS OP PLEADINGS. 
 
 in maintaining the crew thereof during all the time last afore- 
 said, and the plaintiff claims £ - 1 
 
 Declaration by the Carrier against the Shipper for Freight and Primage, 
 payable in Advance. 
 
 That in consideration that the plaintiff would receive on 
 hoard of his, ship called then about to sail from to 
 
 certain goods of the defendant, to be conveyed by the 
 plaintiff in the said ship from to aforesaid, the 
 
 defendant promised the plaintiff that he would, two months 
 after the said ship with the said goods on board thereof should 
 have set sail on the said voyage, pay to the plaintiff freight in 
 advance at the rate of £ per ton measurement for each 
 ton of the said goods, and also primage at the rate of £ 
 per cent upon the said freight, and the plaintiff received the 
 said goods of the defendant on board of the said ship for the 
 purpose and on the terms aforesaid ; and the said ship with 
 the said goods on board thereof afterwards set sail on the said 
 voyage, and all conditions were performed, and all things hap- 
 pened, and all times elapsed, necessary to entitle the plaintiff 
 to be paid the said freight and primage, yet the defendant has 
 not paid the same. And the plaintiff claims £ ? 
 
 Declaration against the Captain of a Vessel on the Bitt of Lading. 
 
 That the plaintiff, at the request of the defendant, caused 
 to be delivered to the defendant divers goods, that is to say 
 {here specify them] of the plaintiff, to be carried by the de- 
 fendant in and by a certain ship of the defendant's, called the 
 , from to and there to be delivered to the 
 
 plaintiff for freight and reward to the defendant in that behalf 
 
 1 As to tins count, see Jesson v. 2 A like count, Tindall v. Taylor, 
 Solby, 4 Taunt. 52; Evans v. Forster, 4 E. & B. 219. 
 1 B. &-Ad. 118; Moller v. Young, 5 
 E. & B. 755. 
 
FORMS OP PLEADINGS. 723 
 
 (the act of God, the Queen's enemies, fire, and all and. every 
 other dangers and accidents of the seas, rivers, and navigation 
 of whatever nature and kind soever excepted), 1 and the defend- 
 ant then received the same accordingly for the purpose afore- 
 said ; and although the said ship afterwards safely arrived at 
 aforesaid, and no act of God, nor the Queen's enemies, 
 nor fire, nor any danger or accidents of the seas, rivers, or 
 navigation, prevented the safe carriage or delivery of the said 
 goods as aforesaid, yet the defendant did not deliver the said 
 goods to the plaintiff, but so negligently, carelessly, and im- 
 properly conducted himself in this behalf, that for want of due 
 care in the defendant and his servants in that behalf the said 
 goods became»and were wholly lost to the plaintiff. And the 
 plaintiff claims £ ? 
 
 COUNTS IN TORTS. 
 
 Declaration against the Owners of a Ship for the Loss of a Passenger's 
 
 Luggage. 
 
 That the defendants were owners of the 3 for the car- 
 
 riage of passengers and their luggage, and of goods and chat- 
 tels from i to , and from [here reverse the places'] 
 for hire, and were common carriers of goods and passengers 
 for hire in the said ship between the places aforesaid, and the 
 plaintiff became a passenger therein to be conveyed from 
 to , with luggage, goods, and chattels, his prop- 
 erty, consisting of [here describe the luggage] safely and 
 securely to be delivered ; and by the negligence of the defend- 
 ants and their servants the said ship was lost, and the plain- 
 tiff's goods and chattels, and the plaintiff was and is wholly 
 deprived of the same. And the plaintiff claims £ 
 
 1 This must agree with the terms * Describe fully the place, so that 
 of the bill of lading. in case there should be two of the 
 
 2 See another form, Colvin v. New- same name, the one intended may be 
 berry, 8 B. & C. 66. clear. 
 
 8 State here whether steamship or 
 sailing vessel. 
 
724 FORMS OF PLEADINGS. 
 
 Declaration against Ship-owners for the Loss of Goods. 
 
 That the plaintiff caused to be delivered to the defendants 
 and they received certain goods to be by them shipped on 
 board of the ship and safely and securely carried therein 
 
 from to , and there delivered for the plaintiff (cer- 
 
 tain perils and casualties only excepted), for freight payable 
 by the plaintiff to the defendants, and the defendants were 
 not prevented from so shipping, carrying, or delivering the 
 said goods by any of the casualties aforesaid, and all condi- 
 tions were performed, and all things happened, and all times 
 elapsed, necessary to entitle the plaintiff to have the said goods 
 safely and securely carried and delivered by the defendants as 
 aforesaid ; yet the defendants did not safely and securely 
 carry and deliver the said goods as aforesaid, and the same 
 were during the said voyage lost to the plaintiff, and the 
 plaintiff claims £ .* 
 
 Declaration for Damage to Goods shipped in the Defendants Ship 
 
 to he carried. 
 
 That the plaintiff delivered to the defendant and the defend- 
 ant received from the plaintiff certain goods of the plaintiff 
 to be by the defendant safely and securely shipped and carried 
 in the ship on a voyage from to , and there 
 
 delivered for the plaintiff, for freight payable by the plaintiff 
 to the defendant ; yet the defendant so negligently carried the 
 said goods in the said ship on the said voyage, that by reason 
 thereof a large part of them was damaged and rendered of no 
 use to the plaintiff, and the plaintiff claims £ ? 
 
 1 See forms, Newberry v. Colvin, 7 value wilhin the Merchant Shipping 
 
 Bing. 190 ; Gibbs v. Potter, 10 M. & Act (17 & 18 Viet. c. 104, § 503), so 
 
 W. 70 ; Williams v. African Steam Co., as to render the ship-owner liable for a 
 
 1 H. & N. 300. On a bill of lading, loss without his actual fault or privity, 
 
 see Colvin v. Newberry, 8 B. & C. "Williams v. African Steamship Co., 
 
 166. Where the bill of lading de- supra. 
 
 scribed the goods as " one box, con- 2 See Alston v. Herring, 25 L. J. 
 
 taining about 248 ounces of gold Exch. 177; Kay v, Wheeler, L. R. 2 
 
 dust," it was decided that it was not C. P. 302. 
 a declaration of the true nature and 
 
POEMS OF PLEADINGS. 725 
 
 Declaration for Damage to Goods occasioned by Negligent Stowage. 
 
 That the plaintiff delivered to the defendant and defendant 
 received from the plaintiff certain goods of the plaintiff to be 
 by the defendant shipped and stowed on board the ship 
 and carried therein from to for the plaintiff (cer- ' 
 
 tain perils and casualties only excepted), for freight payable 
 by the plaintiff to the defendant, and upon the terms that the 
 defendant should use due and proper care in the stowage of 
 the said goods ; yet the defendant did not use due and proper 
 care in the stowage of the said goods, and so negligently 
 stowed the same that by reason thereof, and not by reason of 
 any of the excepted perils or casualties, the said goods were 
 damaged, and the plaintiff claims £ 
 
 Declaration against a Carrier by Water for losing Goods. 
 
 See count in declarations by and against carriers by land ; 
 and see Gatliffe v. Bourne, 4 Bing. N. C. 314. A second count 
 might be added for losing the goods between the place of land- 
 ing and the plaintiff's place of business, James v. Bourne, 4 
 Bing. N. C. 420. 
 
 Declaration against a Carrier by Water for damaging a Cargo. 
 For a form, see Bennion v. Davison, 3 M. & W. 179. 
 
 Declaration against a Carrier by the Consignor (with whom the Con- 
 tract was made), for not giving the Consignee Notice as to the 
 Arrival of the Goods or forwarding them to him. 
 
 That the plaintiff, at the request of the defendant, delivered 2 
 to him certain goods of the plaintiff upon certain terms agreed 
 
 1 See Hutchinson v. Guion, 5 C. B. shipment, as against a ship-owner in 
 n. s. 149 ; also, Major v. -White, 7 C. favor of a shipper of goods, or of an 
 & P. 41 ; Anderson v. Chapman, 5 M. indorsee for value. Berkeley v. Wat- 
 & W. 483. ling, 7 A. & E. 29. 
 
 2 A bill of lading is evidence of a 
 
726 POEMS OP PLEADINGS. 
 
 upon between the plaintiff and the defendant, that is to say, 
 that the said goods should be carried by the defendant in a 
 certain barge or vessel from to , in order that 
 
 upon their arrival there the goods might be forwarded, or 
 sent, or delivered by the defendant to one at , and 
 
 there delivered to him for the said plaintiff, or otherwise that 
 the defendant might, upon the arrival of the said goods at 
 or within a reasonable time next following, notify such 
 arrival to the said at for reward to the defendant 
 
 in that behalf ; and although the defendant conveyed the said 
 goods to , and although a reasonable time for forward- 
 
 ing and sending or delivering the same, or notifying the arrival 
 thereof, had elapsed before the commencement of this suit; 
 yet the defendant did not forward, or send, or deliver the said 
 goods for the plaintiff to the said at within such 
 
 reasonable time, or at any other time, or notify, or cause to 
 be notified to the said within such reasonable time, or 
 
 at any other time, such arrival of the said goods, but the de- 
 fendant wrongfully detained the same in his possession for a 
 long and unreasonable time without sending, or forwarding, 
 or delivering, or causing to be delivered the said goods to the 
 said for the said plaintiff, or otherwise notifying, or 
 
 causing to be notified to the said the arrival of the same, 
 
 and by reason thereof the said afterwards refused and 
 
 declined to accept and purchase and pay for the same as he 
 otherwise would have done, whereby the plaintiff hath been 
 deprived of gains and profits which would otherwise have ac- 
 crued to him and hath lost other opportunities of disposing of 
 the said goods, and the benefit of the profits which would 
 otherwise have arisen therefrom, and hath incurred expenses 
 in endeavoring to obtain the goods, and the same are injured 
 and lessened in value, and the plaintiff claims £ 
 
 Declaration against the Master of a Steam-tug in towing the Plain- 
 tiff's Ships. 
 
 That in consideration that the plaintiff would employ the 
 
FORMS OF PLEADINGS. 727 
 
 defendant with a steam-tug of the defendant to tow a certain 
 ship of the plaintiff from the port of out to sea, for re- 
 
 ward to the defendant, the defendant promised the plaintiff so 
 to tow the said ship in a careful, skilful, and proper manner, 
 and the plaintiff employed the defendant, and the defendant 
 accepted and entered upon the said employment for the pur- 
 pose and on the terms aforesaid, and all conditions were 
 performed, and all things happened, and all times elapsed, 
 necessary to entitle the plaintiff to have the said ship so towed 
 in a : careful, skilful, and proper manner, yet the defendant 
 towed the said ship in a negligent, unskilful, and improper 
 manner, whereby the said ship became and was stranded and 
 damaged, and the plaintiff claims £ - 1 
 
 CARRIERS OP PASSENGERS. 
 
 Counts in Contract. 
 
 Declaration on the Indebitatus Count by a Carrier for Passage-money. 
 
 For money payable by the defendant to the plaintiff, for the 
 conveyance of the defendant in a carriage at his request, by 
 the plaintiff, and the plaintiff claims £ 
 
 Declaration against a Coach Proprietor for not carrying a Passenger. 
 
 That the defendant was the owner and proprietor of a cer- 
 tain stage-coach, going and passing from to for 
 the carriage and conveyance therein of passengers and their 
 luggage for hire, and thereupon, in consideration that the 
 plaintiff, at the request of the defendant, would take and en- 
 gage a place or seat in the said coach of the defendant, to be 
 carried and conveyed therein, as a passenger, from to 
 , together with his luggage, at and for certain reason- 
 
 1 A like count, Symonds v. Pain, 30 L. J. Exch. 256. 
 
728 POEMS OP PLEADINGS. 
 
 able hire and reward to be [or, if already paid, omit to be] 
 therefore paid by the plaintiff to the defendant, he, the defend- 
 ant, promised the plaintiff to carry and convey the plaintiff, 
 together with his said luggage in and by the said coach or 
 carriage, from to aforesaid, and the plaintiff saith, 
 
 that although he did take and engage a place or seat in the said 
 coach or carriage, to be carried and conveyed, together with 
 his said luggage, in and by the said coach or carriage from 
 to aforesaid, and although the plaintiff was ready 
 
 and willing to be carried and conveyed, together with his said 
 luggage, in or by the said coach, from to afore- 
 
 said, and the plaintiff then requested the defendant to carry 
 and convey the plaintiff, together with his said luggage in or 
 by the said coach, from to aforesaid, yet the de- 
 
 fendant did not, nor would when he was so requested as 
 aforesaid, or at any other time carry or convey the plaintiff as 
 aforesaid or otherwise, but then wholly neglected and refused 
 so to do, whereby the plaintiff was obliged to procure another 
 conveyance to aforesaid, and was thereby put to great 
 
 trouble and inconvenience, and to great expense, and was, and 
 is, otherwise greatly injured and damnified, 1 and the plaintiff 
 claims £ 
 
 Declaration against a Railway Company for Delay in a Train. 
 
 That the defendants were carriers of passengers in car- 
 riages on a railway from to , for reward to the 
 defendants, and thereupon on the day of , a. d. 
 , in consideration that the plaintiff at the request of 
 the defendants would pay them a sum of money as and" for the 
 price of their carrying the plaintiff as a passenger in one of 
 the said carriages from to aforesaid, by a train 
 which the defendants advertised in their published train bill 
 and represented to the plaintiff to be a train that would start 
 
 1 Here state accurately any special recover back the fare, if any, paid by 
 damage the plaintiff has ; also add the plaintiff to the defendant, and on 
 count for money had and received, to an account stated. 
 
FORMS OF PLEADINGS. 729 
 
 from to aforesaid, at o'clock in the [after- 
 
 noon], and arrive at aforesaid at o'clock in the 
 
 [afternoon] of the said day, the defendants promised the plain- 
 tiff that they would use reasonable care and diligence that the 
 said train should start and arrive at the respective times afore- 
 said, and plaintiff accordingly paid the defendants the said 
 sum of money for the purpose and on the terms aforesaid, and 
 became such passenger to be so carried by the defendants as 
 aforesaid by the said train, yet the defendants did not use 
 reasonable care and diligence that the said train should start 
 and arrive at the respective times aforesaid ; and for want of 
 such care and diligence the said train started from 
 aforesaid and arrived at aforesaid respectively at much 
 
 later times than the respective times aforesaid, whereby the 
 plaintiff was delayed and put to expense and inconvenience, 
 and was prevented from attending to his business at 
 aforesaid as he otherwise would have done, and the plaintiff 
 claims £ - 1 
 
 Count by Husband for Loss of his Wife's Luggage. 
 
 That the defendants were carriers of passengers and their 
 luggage (on a railway) from to , and in consid- 
 
 eration that the plaintiff caused his wife to become and be a 
 passenger to be carried with her luggage by the defendants 
 (on the said railway) from to aforesaid, within a 
 
 reasonable time in that behalf, for reward then paid by the 
 plaintiff to the defendants in that behalf, the defendants 
 promised the plaintiff to carry his said wife with her luggage 
 (on the said railway) safely and securely from to 
 
 aforesaid, and there to deliver to her the said luggage for the 
 plaintiff within a reasonable time in that behalf as aforesaid ; 
 and although such reasonable time elapsed, yet the defendants 
 did not safely and securely carry the said luggage from 
 to aforesaid, and there deliver the same to the plaintiff's 
 
 wife for the plaintiff within such reasonable time as aforesaid, 
 
 1 A like count, Hamlyn v. Great Northern Rail. Co., 26 L. J. Exch. 20. 
 
730 FORMS OP PLEADINGS. 
 
 nor until a long time after had elapsed, and during all that 
 time the plaintiff was deprived of the said luggage, and was 
 put to much trouble and expense, and lost much time in en- 
 deavoring to obtain the same, and in providing other goods 
 in the place of the said luggage. And the plaintiff claims 
 £ .1 
 
 COUNTS IN TORTS. 
 
 Declaration against a Carrier for refusing to carry a Passenger. 
 
 That the defendants were common carriers of passengers 
 for hire from to , and the plaintiff, at a reason- 
 
 able time and place, and in a fit and proper state, tendered 
 himself to be carried as a passenger from to 
 
 aforesaid for hire, and was ready and willing and offered to 
 pay the said hire, and the defendants had the means of carry- 
 ing the plaintiff, and were able to have done so, yet refused 
 to, and did not nor wOuld, carry the plaintiff. And the plain- 
 tiff claims £ - 2 
 
 Declaration for Delay in carrying a Passenger. 
 
 For a form, see Hamlyn v. Great Northern Railway Com- 
 pany, 26 L. J. Exch. 20. (See Form, ante, p. 600.) 
 
 Declaration against a Carrier for Injury to a Passenger. 
 
 That the defendants were common carriers of passengers 
 for hire from to , and received the plaintiff as a 
 
 passenger to be carried from to for hire, yet the 
 
 1 For form of a declaration against 2 Count for refusing to carry a 
 
 a cab proprietor for the loss of a pas- passenger's luggage, see Munster v. 
 
 senger's luggage from a hired cab, see Soutli-Eastern Rail. Co., 4 C. B. n. s. 
 
 Powles v. Hider, 6 E. & B. 207 ; Ross 676. 
 v. Hill, 2 C. B. 877. 
 
FORMS OF PLEADINGS. 731 
 
 defendants so negligently conducted themselves in and about 
 carrying the plaintiff, that by reason thereof the plaintiff was 
 wounded and seriously injured, and incurred loss of time and 
 expense in and about the cure of his wounds and injuries, and 
 was prevented for a long time from attending to his necessary 
 affairs and business, and was deprived of the gains and profits 
 he would otherwise have derived therefrom. And the plaintiff 
 claims £. 
 
 Declaration against a Railway Company for the Loss of a Passen- 
 ger's Luggage. 
 
 That the defendants were carriers of passengers and their 
 luggage upon a railway, from to , for reward to 
 
 the defendants, and the plaintiff became and was received by 
 the defendants as a passenger, with his luggage, that is to say 
 [a carpet bag, or as the case may be] , to be by them as such 
 carriers safely and securely carried on the said railway from 
 to aforesaid by a certain train, and the said 
 
 luggage to be delivered by the defendants to the plaintiff 
 at aforesaid on his arrival there by the said train for 
 
 reward to the defendants, and a reasonable time for carrying 
 and delivering the said luggage as aforesaid elapsed, yet the 
 defendants did not safely and securely carry the said luggage 
 and deliver the same to the plaintiff as aforesaid, whereby the 
 said luggage was lost to the plaintiff. And the plaintiff 
 claims £ - 1 
 
 Declaration against a Railway Company for not running a Train, 
 as advertised by their Time Tables. 
 
 See Count in Denton v. Great Northern Railway Company, 
 5 E. & B. 860. 
 
 1 Like count, Munster v. Great count for a temporary loss of luggage, 
 Eastern Rail. Co., 4 0. B. h. s. 676 ; see Hearn v. London & South-West- 
 Stewart v. London & North -Western em Rail. Co., 10 Exch. 793. 
 Rail. Co., 33 L. J. Exch. 199. For a 
 
732 FORMS OF PLEADINGS. 
 
 Declaration against a Railway Company for Delay in a Train. 
 
 That the defendants were carriers of passengers in a rail- 
 way from to on hire, and the plaintiff came and 
 was received by the defendants, as such carriers, as a passen- 
 ger to be carried by them, on the said railway, from to 
 aforesaid, for reward to the defendants, by a train 
 which the defendants advertised and represented to the plain- 
 tiff, by a published train bill, to be a train starting from 
 aforesaid to aforesaid at o'clock in the [afternoon], 
 and as arriving at aforesaid at o'clock in the 
 [afternoon] , and by reason of the defendants' negligence, de- 
 fault, and want of proper management of their traffic upon 
 the said railway, the said train did not start from afore- 
 said at the time in that behalf above specified, or within a 
 reasonable time afterwards, and did not arrive at afore- 
 said at the time in that behalf aforesaid, or within a reason- 
 able time afterwards, whereby the plaintiff was put to expense 
 and inconvenience, and was prevented from attending to his 
 business at aforesaid as he otherwise would have done. 
 And the plaintiff claims £ - 1 
 
 Declaration by the Executor of a Deceased Passenger against a Car- 
 rier for Negligence {under 9 & 10 Vict. c. 93, Lord CampbeWs Act). 
 
 , executor of the last will and testament of 
 deceased, by his attorney, sues . For that the 
 
 defendants were common carriers of passengers for hire, from 
 to , and received , since deceased, to be 
 
 carried from to for hire, yet the defendants so 
 
 negligently conducted themselves in and about carrying the 
 said , that, by reason of such negligence, the said 
 
 was injured, and died within twelve calendar months next 
 before this suit, and the plaintiff, as executor as aforesaid, for 
 the benefit of the [state whom] 2 of the said , ac- 
 
 1 A like count in MoAndrew v. 2 9 & 10 Vict. c. 93, § 2, directs 
 Electric Telegraph Co., 17 C. B. 3. for whose benefit the action is to be 
 
FORMS OP PLEADINGS. 733 
 
 cording to the statute in such case made and provided, and 
 the plaintiff claims £ 
 
 Declaration against a Carrier of Messages. 
 
 Declaration against a Telegraph Company for Negligence in the Trans- 
 mission of a Message. ■ 
 
 That before and at the time of making the agreement here- 
 inafter mentioned, the defendants carried on the business, 
 amongst other things, of transmitting and giving effect, by 
 means of the telegraphs arid apparatus of the defendants, and 
 otherwise, to intelligence and messages for certain hire and 
 reward in that behalf, and, therefore, in consideration that 
 the plaintiff would pay to the defendants , the defend- 
 
 ants promised the plaintiff that they would transmit correctly 
 for the plaintiff from to the message following, 
 
 that is to say, and the plaintiff paid to the defendants 
 
 the said and all conditions (general averment of condi- 
 
 tions precedent), yet the defendants did not correctly transmit 
 to the said message as aforesaid, and transmitted to him 
 
 another and different message * in the terms following where- 
 by [here insert damage'] , and the plaintiff claims £ 
 
 PLEAS TO DECLARATIONS FEAMED IN CONTRACT 
 BY AND AGAINST CARRIERS. 
 Form of a Plea. 
 In the Queen's Bench [or C. P. or Exch.J 
 
 The day of 18 . 
 
 The said defendant by his attorney [or in person] says 
 
 [here state the matter of defence — see in the various forms]. 2 
 
 brought ; and 67, § 4, full particulars 1 This averment must depend upon 
 
 of the persons for whom this action is the circumstances of the particular case, 
 
 brought, and of the nature of the 2 In the margin, the, defendant's 
 
 claim, must be delivered with the name (surname only) is inserted first, 
 
 declaration. See also 27 & 28 Vict, then the word " ats " (at the suit of), 
 
 c. 95, § 1. and then the plaintiff's surname. 
 
734 POEMS OP PLEADINGS. 
 
 Plea of the General Issue — Non Assumpsit. 
 That he [or she or they] did not promise as alleged. 
 
 Plea of never Indebted, to the Indebitatus Counts. 
 
 That he [or she or they] never was [or were] indebted 
 alleged. 
 
 Plea of the General Issue to a Count upon a Deed. 
 That the alleged deed or bond is not his [her or their] deed. 
 
 Plea traversing the Delivery and Receipt of the Goods. 
 
 That the plaintiff did not deliver to the defendant, nor did 
 the defendant receive from the plaintiff the said goods as 
 alleged. 
 
 Plea traversing the Breach. 
 
 That he carried the said goods to , and safely and 
 
 securely delivered the same to [or for] the plaintiff within a 
 reasonable time. 
 
 Plea of Payment to an Action for the Carriage or Freight of Goods. 
 
 That before action he satisfied and discharged the plaintiff's 
 claim by payment. 
 
 Plea of Payment into Court. 
 
 Brings into court the sum of £ , and says that the said 
 sum is sufficient to satisfy the claim of the plaintiff in respect 
 of the matter herein pleaded to. 
 
FORMS OP PLEADINGS. 735 
 
 Plea of the Statute of Limitations. 
 
 That the alleged cause of action did not accrue within six 
 years next before the commencement of this suit. 
 
 Plea to an Action against a Carrier charged as a Wharfinger, that 
 the Goods were destroyed by an Accidental Fire. 
 
 See Form, Bourne v. Gatliffe, 3 Scott, N. R. 1 ; T M. & G. 
 850. 
 
 Plea to an Action by the Consignee of Goods for not delivering them, 
 that the Consignor gave Notice to the Carrier, and stopped the 
 Goods in Transitu. 
 
 See Form in Jones v. Jones, 8 M. & W. 431. 
 
 Plea to an Action for not delivering Goods, that the Defendants could 
 not ascertain to whom they were to be delivered. 
 
 That the plaintiff delivered the said goods to the defendants, 
 directed and to be delivered at , to a certain person there, 
 to the defendants unknown, without any information to the 
 defendants, at any time, whereby the defendants could ascer- 
 tain who the said person was, or where in , or else- 
 where, the said goods could be delivered to him, and the 
 defendants, by reason of the premises, not having been able 
 to ascertain who the said person was, or where the said goods 
 could be delivered to him, and the said person having made no 
 application for the same, the defendants, without any default 
 on their part, have been unable to deliver, and have not deliv- 
 ered, the said goods, which is the alleged non-delivery thereof 
 in the said declaration mentioned. 
 
736 POEMS OP PLEADINGS. 
 
 Plea to an Action for the Loss of Goods left in the Cloak-room of a 
 •Railway Company, that the Defendants accepted them upon the Con- 
 dition that they would not be responsible if their Value exceeded £10, 
 and that they did exceed £10. 
 
 For Form, 1 see Van Toll v. The South-Eastern Railway 
 Company, 31 L. J. C. P. 241. 
 
 Plea to an Action for hot delivering Goods, that the Goods were seized 
 by the Sheriff under a ft. fa. on a Judgment against a Person who 
 had fraudulently assigned them to the Plaintiff. 
 
 That, before the said delivery to the defendants, the said 
 goods were the goods of one , and that while the said 
 
 goods were his goods, and before and at the time of the bargain 
 and conveyance hereafter mentioned, the said was justly 
 
 and lawfully indebted to one , in the sum of £ , 
 
 which sum the said , in the Court of Queen's Bench 
 
 [or C. P. or Bxch.] by the judgment of the said court, 
 before the committing of the breach of promise in the decla- 
 ration mentioned, did, in an action by him brought against the 
 said , recover against the said , together with 
 
 his costs of suit, amounting, with the said debt, to £ , and 
 the defendants say, that before the said delivery to the plain- 
 tiff, the said fraudulently, and by collusion with the 
 plaintiff, who knew the premises, bargained and conveyed the 
 said goods to the plaintiff to and for the intent and purpose 
 to delay, hinder, and defraud the said of his said just 
 and lawful debt, whereby the said action and debt of the 
 said were disturbed, hindered, and defrauded. And 
 the defendants further say, that after the said bargain and 
 conveyance, and after the said delivery to the defendants, 
 and before the breach in the declaration complained of, one 
 , then being sheriff of the county of , under 
 
 1 The deposit of goods in the cloak- the Railway and Canal Traffic Act, 17 
 room of a railway station is not within & 18 Vict. c. 31, § 7. 
 
POEMS OP PLEADINGS. 737 
 
 and by virtue of a certain writ of fi. fa. to him directed and 
 delivered at the suit of the said against the said , 
 
 issued out of the said court, upon and for having execution of 
 the said judgment, commanding the said sheriff to levy of the 
 goods and chattels of the said in his bailiwick the said 
 
 sum of & so recovered as aforesaid, seized the said 
 
 goods and chattels then being in the possession of the defend- 
 ants as such common carriers, and on the terms aforesaid, the 
 same goods being liable to be seized under the said execution, 
 and kept and detained the same, whereby the defendants, with- 
 out any default on their part, were prevented from carrying 
 and delivering the said goods within such reasonable time 
 as aforesaid, and were and are prevented from delivering the 
 same to the plaintiff. 
 
 Plea by a Railway Company of a Special Condition exempting the 
 Defendants from Liability. 
 
 That the said goods were delivered by the plaintiff to the 
 defendants and were received by them to be carried as afore- 
 said, under a special contract between the plaintiff and defend- 
 ants, signed by the plaintiff, and subject to just and reasonable 
 conditions contained in the said contract, one of which con- 
 ditions was, 1 that the defendants would not be answerable for 
 the loss or detention of any goods which might be untruly or 
 incorrectly described in the receiving-note delivered by the 
 plaintiff to the defendants, and at the time of th'e delivery of 
 the said goods to the defendants, the plaintiff delivered to 
 them a receiving-note, purporting to contain a true and correct 
 description of the said goods, and the defendants received the 
 said goods from the plaintiff upon the faith of the said de- 
 scription, and the said goods were not truly and correctly 
 described in the said receiving-note, and were, without the 
 defendants' knowledge or consent, misdescribed in the said 
 receiving-note, within the meaning of the said condition. 1 
 
 1 Here describe the condition. As reasonable conditions, see the body of 
 to what are reasonable and what un- the work. Like pleas may be found 
 
 47 
 
738 FORMS OP PLEADINGS. 
 
 Plea that the Goods were carried under a Special Contract. 1 
 Another Count. 
 
 That the said goods were delivered to and received by the 
 defendants to be carried under a special contract signed by 
 the plaintiff [or on behalf of the plaintiff], and con- 
 
 taining certain just and reasonable conditions, and among 
 others that [here set out the conditions exempting the defend- 
 ant], and [state facts which show the defendant has acted in 
 accordance with the conditions']. 
 
 Plea of a Special Contract repudiating Liability for Loss or Damage 
 unless the Goods were declared and insured according to their 
 Value. 
 
 See Form in Wyld v. Pickford, 8 M. & W. 443. 
 
 Plea that the Goods were carried and tendered to the Plaintiff, who 
 refused to pay for the Carriage. 
 
 See Form in Crouch v. Great Western Railway Company, 
 26 L. J. Exch. 345. 
 
 Plea by a Carrier by Sea, that the Nature and Value of the Goods 
 were not declared. 
 
 See Form in Williams v. The African Steamship Company, 
 1 H. & N. 300. 
 
 in Lewis v. Great Western Rail. Co., 1 As to special contracts, see 17 & 
 
 5 H. & N. 867 ; Peek v. North Staf- 18 Vict. c. 32, § 7. As to effect of 
 
 fordshire Hail. Co., B. B. & E. 958. this and other statutes upon special 
 
 Like pleas as to cattle, Gregory v. agreements, see the body of the 
 
 Midland Rail. Co., 33 L. J. Exch. work. 
 155. 
 
FORMS OP PLEADINGS. 739 
 
 Plea that the Goods were received to be carried on the Terms that the 
 Defendants should not be liable unless Bills of Lading were signed, 
 which was not done. 
 
 See Wilton v. Royal Atlantic Mail Steam Navigation Com- 
 pany, 10 C. B. n. s. 453. 
 
 Plea that the Damage was caused by the Goods being of a Dangerous 
 Description, which the Plaintiff well knew, but of which he gave no 
 Notice to the Defendant. 
 
 See Form in Hutchinson v. Guion, 28 L. J. C. P. 63. 
 
 Plea under the Carriers' Act, 1 Will. IV. c. 68, that the Goods were 
 within the Act, and were above the Value of £10, and were not 
 declared or insured. 
 
 That the said goods were articles and property of the de- 
 scription mentioned in the first section of the statute passed 
 in the first year of the reign of King William IV., for the 
 most effectual protection of common carriers for hire, and 
 were contained in a parcel which, with the said goods therein 
 contained, was delivered by the plaintiff to the defendant as 
 and being a common carrier by land for hire, at a certain 
 office or receiving-house of the defendant, for the purpose of 
 being by him as such carrier carried for hire \_or, to accom- 
 pany the person of the plaintiff as such passenger], as in the 
 declaration mentioned, in a public conveyance, and the value 
 of the said goods then exceeded .£10, and at the time of the 
 delivery of the said parcel and goods as aforesaid, there was 
 affixed in legible characters in a public and conspicuous part 
 of the said office or receiving-house, being an office or receiv- 
 ing-house of the defendant, where such parcels were then 
 received by the defendant for the purpose of conveyance, a 
 notice within the meaning of the said statute, whereby the 
 
740 FORMS OF PLEADINGS. 
 
 defendant notified that an increased rate of charge in the said 
 notice mentioned was required to be paid to him 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 
 articles and property of the description in the first section of 
 the said statute mentioned ; and at the time of the delivery 
 of the said parcel and goods at the said office or receiving- 
 house of the defendant as aforesaid for the purpose aforesaid, 
 the value and nature of the said goods were not declared by 
 the person sending or delivering the same, and neither such 
 increased charge as aforesaid, nor any engagement to pay the 
 same was accepted by the person receiving the said parcel 
 and goods. 1 
 
 PLEAS TO DECLARATIONS FRAMED IN TORT. 
 
 Plea of the General Issue. 
 That he is not guilty. 
 
 Plea of the General Issue by Statute. 
 
 That he is not guilty [or, if several defendants, that they 
 are not, nor is either or any of them, guilty]. 2 
 
 Plea by a Carrier, denying the Receipt by him of the Goods. 
 
 That the plaintiff did not deliver to him, nor did he receive 
 the said goods and chattels from the plaintiff, or any of them, 
 for the purpose alleged. 
 
 1 Forms of like pleas may be found " By statute," and also the year of the 
 in Machu v. South-Western Rail. Co., reign in which the Act or Acts of Par- 
 2 Exch. 415 ; Syms v. Chaplin, 5 A. liament were passed, and also the 
 & E. 634, and Metcalfe v. London & chapter and section of each of such 
 Brighton Rail. Co., 27 L. J. C. P. 205. statutes, and also specify whether they 
 
 2 State in the margin the words are public or private acts. 
 
FORMS OF PLEADINGS. 741 
 
 Plea to a Count for refusing to carry, denying that the Defendant was 
 a Common Carrier. 
 
 That he was not a common carrier of goods [or of passengers 
 and their luggage] as alleged. 
 
 Plea of Notice and Stoppage in Transitu by an Unpaid Consignor. 
 See Form in Jones v. Jones, 8 M. & W. 431. 
 
 Plea to a Count for refusing to carry, that the Plaintiff was not ready 
 and willing to pay the Carriage. 
 
 That the plaintiff did not pay, nor was he ready and willing 
 to pay, to the defendant, his reasonable charge for the carriage 
 and delivery of the said goods. 
 
 Plea of Payment into Court. 
 
 (if the plea is not pleaded to the whole of the declaration), 
 as to the first or second (and so on) count of the declaration 
 [or, so much thereof, &c], brings into court the sum of £ , 
 and says that the said sum is enough to satisfy the claim of 
 the plaintiff in respect of the matter herein pleaded to. 
 
 Plea to a Declaration in Tort for not delivering a Cask of Beer, that 
 the Cask was an insufficient one and burst, whereby the Beer was lost, 
 and could not be delivered} 
 
 That at the time the said beer was delivered to him, the 
 same was contained in a certain cask, which was then and at 
 the time of the loss hereinafter mentioned, a bad and insuffi- 
 
 1 This plea is not available under the general issue, but must be specially 
 pleaded. 
 
742 POEMS OP PLEADINGS. 
 
 cient cask, and not properly secured and coopered in that be- 
 half, without any default on the part of the defendant, for 
 which reason the said cask afterwards, and before the defend- 
 ant could safely and securely deliver the said cask with the 
 beer therein, for the plaintiff as aforesaid, broke, burst, and 
 gave way, and the said beer therein then escaped from the 
 said cask, and was wholly wasted and lost, without the de- 
 fendant's default, whereby he was prevented from delivering 
 the said cask of beer for the plaintiff, as he otherwise would 
 have done. 
 
 Plea denying the Bailment to the Defendant. 
 
 That the said goods were not delivered by the plaintiff to 
 the defendant for the purpose alleged. 
 
 Plea of Non Detinet to a Declaration for Detention of Goods. 
 
 That he did not, and doth not, detain the said goods, or any 
 or either of them, as alleged. 
 
 Plea of Accord and Satisfaction. 
 
 That he delivered to the plaintiff, and the plaintiff accepted 
 and received from him, certain goods [describe the articles] in 
 full satisfaction and discharge of the causes of action in the 
 declaration mentioned. 
 
 Plea by Carriers that the Breach was caused by the Plaintiff's own Act 
 
 and Default. 
 
 That when the said goods were delivered to and accepted by 
 the defendants as alleged, the same were, by the negligence and 
 
FORMS OP PLEADINGS. 
 
 743 
 
 default of the plaintiff, and without any default of the de- 
 fendants, or any notice or knowledge thereof to or by them, 
 improperly and insufficiently packed and secured, and the de- 
 fendants were thereby prevented from safely and securely 
 carrying and delivering the said goods as they otherwise would 
 have done, and the same were not delivered to the plaintiff, 
 and were wholly lost to him as alleged by and through his own 
 negligence and default, and not otherwise. 
 
 Form of a Replication to a Plea} 
 
 In the (<?. B., C. P., or Ex.). 
 
 The day a. d. 187 . 
 
 The plaintiff takes {or joins] issue upon the defendant's 
 pleas [or all the defendant's pleas, or first, second, and third 
 pleas, as the case may be"]. 
 
 1 The surnames of the parties must 
 be inserted in the margin. By C. L. 
 P. Act, 1852, § 53 : "Rules to reply 
 and plead subsequent pleadings shall 
 not be necessary, and instead thereof 
 a notice shall be substituted, requiring 
 the opposite party to reply, rejoin, or 
 as the case may be, within four days, 
 otherwise judgment, such notice to be 
 
 delivered separately, or indorsed on 
 any pleading to which the opposite 
 party is required to reply, rejoin, or 
 as the case may be." 
 
 For forms of replications in differ- 
 ent cases, reference can be made to 
 Bullen and Leake's Precedents of 
 Pleading, and Chitty's Precedents. 
 
INDEX. 
 
INDEX. 
 
 A. 
 
 ABANDONMENT, 
 
 of cargo by owner, 486. 
 ACCEPTANCE, 
 
 qualified, 192. 
 
 early recognition of carrier's right to change his relation by con- 
 tract, 192. 
 
 see Southcote's Case, 192. 
 
 See Common Carriers; Delivery by Carrier. 
 ACCIDENT. See Inevitable Accident. 
 ACT OF GOD, 
 
 what is, 79, n.-83. 
 
 See Common Carriers. 
 ACTIONS AGAINST AND BY CARRIERS, 
 
 remedy for not carrying, 587. 
 
 absolute tender not necessary, 587. 
 
 where action will lie, 590. 
 
 statutory provisions, 590. 
 
 notice of action to railway companies, 590. 
 
 rule of construction, 591. 
 
 remedy for loss, damage to, or non-delivery of goods, 592. 
 
 form of action in such cases, 592. 
 
 rule in Brotherton v. Wood, and other cases, 593. 
 
 rule in Woodward v. Booth, 594. 
 
 advantages of each mode of declaring, 594. 
 
 non-joinder of parties, 595. 
 
 joinder of trover and case, 596. 
 
 conversion, what it is, 597. 
 
 assumpsit, 598. 
 
 advantages of action of assumpsit, 599. 
 
 who may sue, 600. 
 
 vendee or consignee generally, 600. 
 
 consignor may sue when, 601. 
 
 the principle involved, 602. 
 
 general rule, 602. 
 
 factor, carrier, &c, may sue for goods when, 603. 
 
 rule in Metcalfe v. London, &c. Railway Co., 603. 
 
 when reward for carriage need not be stated, 605. 
 
748 INDEX. 
 
 ACTIONS AGAINST AND BY CARRIERS — continued. 
 who can sue, 606. 
 principal and agent, 608. 
 Statute of Frauds, 609. 
 general rule, 610. 
 
 where consignee may sue,, though property has not passed, 611. 
 property in goods, 612. 
 " bill of lading " defined, 613. 
 "carrier" defined, 613. 
 
 where delivery to carrier is delivery to purchaser, 613. 
 where consignee cannot be found, 614. 
 carrier's duty; consignor's remedy, 614. 
 
 in case of carriers by water, bill of lading to be referred to, 615. 
 bill of lading, evidence of what, 616. 
 parties to be sued, 616. 
 latent defects in men, 617. 
 master liable for injury by servant, 619. 
 the agent's authority, 620. 
 servant only liable when, 620. 
 joinder of parties, 621. 
 distinction in this respect between carriers by land and by water, 
 
 621. 
 rule in Blakie v. Stembridge, 621. 
 Scotch rule, 622. 
 
 option of plaintiff to sue master or servant, 623. 
 objects of the law, 626. 
 the pleadings, 626. 
 
 the Common-Law Procedure Act, 627. 
 declarations, 627. 
 reward, carriage for, 628. 
 receipt of goods and breach of contract, 629. 
 in case of gross negligence, 630. 
 terms in ticket, part of contract, 631. 
 limitation of liability to be considered, 632. 
 reasonable time, 633. 
 breach of implied duty sufficient, 634. 
 the words " safely" and " securely," 635. 
 termini to be correctly stated, 636. 
 pleas, 636. 
 
 plea of not guilty, 637. 
 rule in Wyld v. Pickford, 637. 
 Common-Law Procedure Act, 1852, 638. 
 what may be proved under general issue, 639. 
 what may amount to general issue, 639. 
 what amounts to argumentative traverse of bailment, 640. 
 admission of allegation, 641. 
 inevitable accident, 643. 
 replications, 643. 
 evidence, 644. 
 
INDEX. 749 
 
 ACTIONS AGAINST AND BY CARRIERS — continued. 
 character as carrier must be established, 645. 
 delivery to, must be shown, 646. 
 delivery on wharf to officer, 647. 
 ordinary course of business, 648. 
 production of books by defendant^ 648. 
 proof of loss of goods, 648. 
 servant's evidence, 649. 
 rule in Hawkins v. Finlayson, 650. 
 burden of proof, 650. 
 proof in assumpsit and in case, 651. 
 non-delivery within reasonable time, proof of, 651. 
 contracts, 652. 
 
 as to value of lost goods, 653. 
 disqualification of witness, 654. 
 evidence for carrier in non assumpsit, 655. 
 under general issue, 656. 
 damages, 656. 
 for refusing to carry, 657. 
 illustration, 658. 
 
 effect of notice in case of special damage, 658. 
 damages for injury to or loss of goods, 659. 
 distinction, 661, 662. ' 
 under the Carriers' Act, 663. 
 common-law rule, 663. 
 consequential damages, 664. 
 consequences of breach of contract, 665. 
 average percentage on profits, 666. 
 more precise rule necessary, 666. 
 consequential damage not allowable when, 667. 
 rule in Davis v. North-Western Railway Co., 668. 
 rule in Simmons v. South-Eastern Railway Co., 668. 
 what will be measure of damage, 669. 
 where test is inapplicable, 669. 
 amount that will replace the goods, 670 
 wider liability, 671. 
 contributory damage, 672. 
 where damage results from wrongful act, 672. 
 exemplary damages when, 672. 
 master's duty as to repair of ship, 672. 
 actions against passenger carriers, 673. 
 parties to sue, 673. 
 7 & 8 Vict. c. 85, 674. 
 form of action, 674. 
 advantage of assumpsit, 675. 
 Lord Campbell's Act, 676. 
 when executor must sue, 676. 
 only one action, 677. 
 particulars of person to be given, 677. 
 
750 INDEX. 
 
 ACTIONS AGAINST AND BY CARRIERS — continued. 
 
 27 & 28 Vict. o. 95, 678. 
 
 payment of money into court, 678. 
 
 rule in Read v. Great Eastern Railway Co., 679. 
 
 persons to be sued, 680. 
 
 where action is maintainable, 681. 
 
 contributory negligence, 681. 
 
 evidence, 682. 
 
 in case of carriers by water, 683. 
 
 damages, 684-690. 
 
 cases under Lord Campbell's Act, 691. 
 
 damages not a solatium, 691. 
 
 nominal damages, 692. 
 
 what gives right to recover, 692, 693. 
 
 how damage must have accrued, 694. 
 
 jurisdiction of admiralty, 696. 
 
 31&32 Vict. c. 119/696. 
 ANIMALS, 
 
 carrier not liable for injuries resulting from " proper vice " of, 273. 
 
 see Kendal v. South- Western Railway Co., 273. 
 ASSUMPSIT, 
 
 lies against carrier when, 598. 
 
 advantages of this form of action, 599. 
 
 B. 
 BAGGAGE, 
 
 liability of passenger carriers for ordinary, 117-133. 
 
 what is treated as, 117, n.-133, 130, 132, 133, n., 137, n. 
 
 question for jury, 131, 132. 
 
 test for determining, 117, n. 
 
 nature and extent of journey to be considered, 117, n.-121. 
 
 see New York Central R. R. Co. v. Fraloff, 118, n. 
 
 jewelry is, when, 117, n., 119, n., 120, n. 
 
 valuable laces, 118, n. 
 
 manuscript books, 118, n. 
 
 gun, 118, n. 
 
 fishing tackle, 118, n. 
 
 surgeon's instruments, 118, n. 
 
 opera glass, 118, n. 
 
 pistols, 118, n. 
 
 watch, 120, n. 
 
 money, 119, n. 
 
 rule as to amount of, 119, n. 
 
 see Hickox v. Naugatuck, &c. R. R. Co., 119, n. 
 
 household goods, 119. 
 
 see Ouimit v. Henshaw, 119, n.-120. 
 
 beds and bedding, 119, n. 
 
INDEX. 751 
 
 BAGGAGE — continued. 
 
 see Hirschshon v. American Packet Co., 119, n. 
 
 question for jury, 119, n., 120, n. 
 
 masquerade costume, 120, n. 
 
 must be for personal use of traveller or his family, 120, n. 
 
 carrier only liable for ordinary baggage whether he inquires as to 
 
 contents or not, 120, n. 
 passenger impliedly undertakes that his baggage is ordinary, 120, n. 
 see Michigan, &c. R. R. Co. v. Carran, 120, n. 
 how long liability for, as common carrier, continues, 120, n. 
 what is reasonable time for passenger to take away his baggage, 
 
 121, n. 
 
 after lapse of reasonable time, only liable as warehousemen, 121, n. 
 retained in custody of passenger, carrier not liable for, 121, n., 
 
 125, n., 133, n., 139. 
 see The R. E. Lee, 121, n. 
 see Cohen v. Frost, 122, n. 
 see Tower v. Utica, &c. R. R. Co., 122, n. 
 but see Gore v. Norwich*, &c. Co., 122, n. 
 rule when carrier interferes with baggage in custody of passengers, 
 
 122, n. 
 
 see Kinsley v. Lake Shore R. R. Co., 122, n. 
 
 rule when carrier accepts baggage, knowing that it is not ordinary, 
 
 122, n. 
 see Ross v. Missouri, &c. R. R. Co., 122, n. 
 see Waldron v. Chicago, &c. R. R. Co., 122, n. 
 see Minter v. Pacific R. R. Co., 123, n. 
 checks given for, effect of, 123, n. 
 palace-car companies, liability of, for, 125, n. 
 liability for, begins from delivery of, to carrier, 125, n. 
 see Hickox v. Naugatuck, &c. R. R. Co., 125, n. 
 see Camden, &c. R. R. Co. v. Belknap, 126, n. 
 what amounts to a delivery to, 127, n. 
 see Rogers v. Long Island R. R. Co., 127, n. 
 what will excuse delay in taking baggage away after it reaches its 
 
 destination, 127, n. 
 rule when carrier accepts extra amount of baggage, 128, n. 
 notice that baggage is at risk of owner does not defeat carrier's 
 
 liability for, 127. 
 liability of carrier for, when taken over his route by mistake, 128, n. 
 see Burnell v. New York Central R. R. Co., 128, n. 
 merchandise not included as, 133-137. 
 when carrier will be liable for, 138, also n. 2. 
 actual knowledge of carrier or his agent must be shown, 139. 
 implied modification of contract relating to, 140. 
 when wide liability attaches, 142. 
 limitation of liability for, 143. 
 see Woodruff v. Sherrard, 143, n. 
 
 See Forms, 697-743. 
 
752 INDEX. 
 
 BAGGAGE CHECKS. See Baggage; Checks. 
 BAILEES. See Bailments; Carriers. 
 BAILMENTS, 
 
 principles controlling the law of, 2. 
 distinction between bailee and finder of chattel, 3. 
 different kinds of, 3-4. 
 relation of, to carriers, 3. 
 
 degrees of care and diligence required from bailee, 4. 
 circumstances which control in determining, 5. 
 as, nature and value of article, 5. 
 customs of place and trade, 6. 
 condition of country and climate, 7. 
 condition of the time and civilization, 7. 
 division of, 11, 14. 
 depositum, 11. 
 commodatum, 11. 
 locatio rei, 11. 
 vadium, 11. 
 
 locatio opens faciendum, 11. 
 mandatum, 11, 13, 15, n. 1-17, n. 
 duty of carrier bailees, 12. 
 
 BARGE-MASTERS, 
 
 common carriers when, 74. 
 
 BILLS OF LADING, 
 
 effect of limitations in, 196. 
 what is, 609. 
 
 BURDEN OF PROOF. 
 
 See Common Carriers; Carriers op Passengers. 
 
 BY-LAWS. See Restrictions upon Carriers. 
 
 C. 
 
 CARRIAGE BY SEA, 
 
 same rules apply as in case of carriers by land, 196. 
 limitations in bill of lading, 196. 
 
 CARRIERS, 
 
 duty imposed upon gratuitous, 15-18, 26-30, also n. 1, p. 28. 
 illustrating, see 15, n. 1, 18-22, 26-30. 
 chargeable for gross neglect, 18. 
 reason for rule, 18. 
 
 what constitutes care or negligence to be determined in relation to 
 facts, 22. 
 
 . degree of, question for jury, 19. 
 how to be estimated, 23-26. 
 rule in Nelson v. Mcintosh, 24. 
 duties commensurate with value of the article, 26. 
 rule in Batson v. Donovan, 26. 
 
INDEX. 753 
 
 C ARRIERS — continued. 
 
 modification of duties by special agreement, 30. 
 
 distinction between promise " to keep " and " to keep safely," 30. 
 
 duties of bailee who promises " to keep safely," 31-34. 
 
 right of gratuitous bailee to reimbursement, 32, 33. 
 
 for expenses, 32. 
 
 indemnity for incidental expenses, 32. 
 
 for losses or injuries sustained by, 33. 
 private, who are, 34-42, and n. 1, pp. 34-42. 
 
 See Private Carriers; Common Carriers. 
 CARRIERS OF PASSENGERS, 
 
 difference between duties of carriers of goods and passengers, 492. 
 
 not, insurers, 493. 
 
 duties of, 492, 494. ' 
 
 what is due care, skill, &c, 495, n. 5. 
 
 implications, 497. 
 
 evidence of negligence, 498. 
 
 rule in Carpue v. London, &c. Railway Co., 499. 
 
 rule in Cornman v. The Eastern Counties Railway Co., 499. 
 
 stational arrangements, 500, 503. 
 
 invitation to alight; rule in Praeger v. The Bristol, &c. Railway 
 
 Co., 501. 
 platform accommodations, 504. 
 when passenger may regard himself as being invited to alight, 
 
 505. 
 what will entitle passenger to alight, 506. 
 latent defects, 507. 
 
 degree of care required of passenger carriers, 508-511. 
 rights of, 513. 
 
 liability for servants and agents, 511. 
 contributory negligence, 512. 
 concurrent negligence, 512. 
 duty to receive passengers, 513, 514. 
 rule in Masiter ». Cooper, 514. 
 when refusal to carry is good ground of action, 516. 
 statutory regulations, 516. 
 modification of duties by contract, 517. 
 duties limited by trade and custom, 518. 
 evidence of negligence in case of accident, 520.- 
 duty in circumstances of danger, 520. 
 possible avoidance of accident, 521. 
 rule in Crofts v. Waterhouse, 521. 
 duties as to sufficiency of conveyance, 523. 
 railways ; statutory provisions, 523. . 
 penal provisions, servants, &c, 524. 
 provision for inspection of railways, 525. 
 what is a passenger railway, 525. 
 necessity for regulations, 525. 
 7 & 8 Vict. c. 85, 526. 
 
 48 
 
754 INDEX. 
 
 CARRIERS OP PASSENGERS — continued. 
 effect of provisions considered, 528. 
 7 & 8 Vict. c. 85, § 10, 529. 
 travelling without payment of fare, 530. 
 apprehension and detention of offender, 530. 
 payment of fare for longer distance, 531. 
 provisions for safety of passengers, 532. 
 necessity for legislation, 532. 
 contract, 533. 
 
 what amounts to a contract, 534. 
 civil wrong and pure wrong, 534. 
 how terms of contract are ascertained, 536. 
 rule in the Great Northern Railway Co. v. Harrison, 537. 
 do not warrant carnages to be road-worfhy, 538. 
 responsibility for delay, &c, 539. 
 negligence in not starting train, 540. 
 rule in Great Northern Railway Co. v. Hawcroft, 541. 
 rule in Le Conteur v. South- Western Railway Co., 542. 
 fares, 542. ( 
 
 principle of interpretation, 543. " 
 duty to show and deliver ticket, 544. 
 correlative duty on part of the company, 544. 
 rule of construction of by-laws, 544. 
 fraudulent intention, 545. 
 ingredient of the offence, 547. 
 construction of by-law, 547. 
 restrictions on preference, 548. 
 tramways; street-railways, 548. 
 
 how established, 550. 
 authority of promoters, as to tolls, &c. 551. 
 power to enforce rules, 552. 
 penalties, 553. 
 
 analogy between street and other railways, 554. 
 hackney-coaches, 554. 
 history of legislation in reference to, 555. 
 with regard to licensing, 557-561. 
 sanitary precautions, 561. 
 passengers by water, 562. 
 duties of passengers by, 563. 
 duties of carriers by water, 565. 
 within and beyond the realm, 565. 
 statutes, 566. 
 provisions of, 568. - 
 
 rules, &c, prescribed by_ order in council, 569. 
 licensing passage-brokers, &c, 570. 
 expense of forwarding passengers, 571. 
 the Merchant Shipping Act of 1854, 571. 
 penalties, 571. 
 duties of, as to report of accidents, 573. 
 
INDEX. 755 
 
 CARRIERS OF PASSENGERS — continued. 
 in case of supposed loss, 573. 
 entry of collisions in log-book, 573. 
 contracts for conveyance of passengers, 574. 
 accommodation and provisions, 574. 
 deficiency of water, 575. 
 time of sailing, 575. 
 what amounts to warranty, 576. 
 conveyance, 577. 
 as to safety of passengers, 578. 
 passage-money, &c, 579. 
 obligation to repay, 579. 
 insurance by the owners, 581. 
 lien on passenger's luggage, 581. 
 collisions, 582. 
 
 CARRIERS BY WATER, 
 
 duties of, 568. 
 
 See Carriers of Passengers. 
 
 CATTLE, 
 
 railroad companies held not to be common carriers of, in Michigan, 
 
 84, n. 1. 
 liability of carrier for injuries to, 187. 
 
 CHECKS, 
 
 for baggage, effect of, 123, n., 124, n., 125, n. 
 
 COMMON CARRIERS, 
 
 principles of law applicable to, 1-14. 
 
 who are, 67-69. 
 
 what constitutes, 74. 
 
 insurers of safety of goods, 69-71, n. 2, 3. 
 
 meaning of phrase "public employment," as applied to carriers, 
 
 69, 70, n. 2, 3. 
 reason for distinction, 71. 
 assumption of duties of, implies what, 72. 
 rule in Palmer v. Grand Junction Railway Co., 72. 
 rule in Brind v. Dale, 73. 
 hoymen and barge-masters are, 74. 
 rule in Proprietors, &c. v. Wood, 76-80. 
 modifying circumstances, 80. 
 not liable for losses resulting from act of God, 79. 
 what is treated as act of God, 79, n.-83. 
 not necessarily liable as general carriers, 83. 
 nature of business to be determined how, 85-104. 
 public representations of, effect of, 85-104. 
 rule in Crouch v. London, &c. Railway Co., 90. 
 no distinction between carriers who carry within the realm, and out 
 
 of it, 89. 
 
756 
 
 INDEX. 
 
 COMMON CARRIERS— continued. 
 
 not liable beyond their own route, unless, 90, n.-104, n. 
 
 see Lowell Wire Fence Co. v. Sargent, 91, n. 
 
 see Britnall v. Saratoga, &c. R. R. Co., 91, n. 
 
 see Burrough v. Norwich, &c, R. R. Co., 91, n. 
 
 delivery by, to connecting carrier, relieves him from all further 
 
 liability, 92, n., 95, n., 97, n.-lOO, n. 
 see Grin die v. Eastern Expi-ess Co., 92, n. 
 see Rawson v. Holland, 92, n. 
 liability of, for acts of servants, 104-109. 
 the reason for, 105. 
 
 effect of contract with servant of. 109, also n. 4. 
 partner carriers, rule as to, 110, 111. 
 scope of trade, how determined, 111. 
 passengers' luggage, 112, 117-133, also n., p. 117. 
 of passengers, 112, 113, n. 1,-115. 
 duty to receive goods, 147, 152. 
 conditions of performance, 148. 
 room in conveyance, 148. 
 may require payment for carrying, in advance, 148, also n. 1, 152, 
 
 154, 155, 225. 
 similarity between, and innkeepers as to duties, 149. 
 when bound to receive goods, 150. 
 
 rule for construction of statutes modifying carrier's liability, 151. 
 custom of carrier as to class of goods to be carried, 153. 
 may confine himself to certain kinds of goods, 154. 
 action against, for refusing to carry, 155. 
 when liability arises, 156. 
 when performance must begin, 156. 
 
 custom the rule for determining the duty and responsibility of, 157. 
 where a carrier may receive, 157. 
 receiving-house, 158. 
 hours of receiving, 158, 227. 
 
 rule in Gilbert v. Dale, 227, and Baxendale v. Hart, 228. 
 acceptance by carrier necessary to raise liability, 159. 
 what constitutes, 159. 
 
 principles of insurance as applied to carriers, 160. 
 to what extent, is insurer, 162. 
 reason for the rule, 163. 
 principle on which predicated, 133. 
 liable for all losses except such as arise from act of God, public 
 
 enemies, or the act of the owner, 164, n. 1, 183. 
 loss by fire not loss by act of God, unless, 164, n. 
 loss must be such as must be attributed to act of God, not such as 
 
 may be, 164, n. 1, 165-170. 
 see New Brunswick Co. v. Tiers, 164, n. 1. 
 act of God does not excuse when, 164, 171, 172. 
 see Read v. Spaulding, 164, n. 1. 
 see Michaels v. New York, &c. R. R. Co., 165, n. 
 
INDEX. 757 
 
 COMMON CARRIERS — continued. 
 
 distinction between act of God and " inevitable accident," 166. 
 
 delay occasioned by freshet is, 166, n. 3. 
 
 blockade of railroad by snow is, 166, n. 3. 
 
 vessel running upon hidden rock in the channel is, 168, n. 1. 
 
 running upon snag placed in channel by sudden freshet, held not to 
 
 be, 168, n. 1. 
 see Faulkner v. Wright, 168, n. 
 destruction of goods by lightning, 168, n. 1. 
 see Forward v. Pittard, 169, 170. 
 
 rule when carrier's act is primary cause of loss, 172-178, 173, n. 1. 
 see Nugent v.. Smith, 173, n. 1. 
 see Crosby v. Fitch, 174, n. 
 
 not liable for losses resulting from acts of Queen's enemies, 178. 
 who are, 178. 
 pirates, 178. 
 
 carrier's liability, where loss was inevitable, 180. 
 Roman law relating to, 181. 
 negligence which does not cause loss, 181. 
 rule when there is doubt as to cause of loss, 181-183. 
 necessary evidence to evade liability upon ground that loss resulted 
 
 from act of God, 183. 
 rule when loss results from leakage, 183-185. 
 when loss results from natural decay, 183-185. 
 from negligent packing, 185. 
 from natural causes, 185. 
 where responsibility of, begins and ends, 186. 
 of cattle, when liable for loss of or injury to, 187-189. 
 circumstances of transit and necessity of road, 189. 
 limitation of liability of, by custom,' 192. 
 qualified acceptance, 192. 
 carrier's right to change his relation by contract recognized at early 
 
 day, 192-196. 
 see Southcote's Case, 192. 
 
 rule when shipper deceives carrier as to value of goods, 193, 194. 
 rule when shipper has not been guilty of fraud, 193, 194. 
 shipper not bound to disclose value of goods, unless, 193, 194. 
 see Orange County Bank v. Brown, 194. 
 see Nicholson v. Willan, 195. 
 carriers by sea, same rules apply to, 196. 
 limitations in bill of lading, 196. 
 express agreements limiting liability of, 196. 
 exclusion of responsibility by notice, 196. 
 rule in Riley v. Home, 196. 
 principle of, 198. 
 to what, notice applies, 197-199. 
 as to early doctrine, 199-203. 
 this generally prevails in this country, 200-202. 
 modifications of the rule in England, 203. 
 
758 INDEX. 
 
 COMMON CARRIERS — continued. 
 extent of limitation, 204. 
 express agreement, 204. 
 general notice, effect of, 205. 
 must come to knowledge of owner of goods, 205. 
 factual limitation, 206, 207. 
 false statement of value, effect of, 208. 
 rule in Maving v. Todd, 208. 
 extinction of common-law duties by notice, 209. 
 onus of proof, 209. 
 rule in Macklin v. Waterhouse, 210. 
 see Blossom v. Dodd, 211, n. 2. 
 means by which brought to owner's notice, 215. 
 
 by placards, 216. 
 
 on board in office, 216. 
 effectual notice, what is, 217. 
 notice to principal, 217. 
 bulky goods, 218. 
 proper way to limit liability, 219. 
 
 provisions of Stat. 11 Geo. IV. and 1 Will. IV., 220-225. 
 effect of, 226, 264. 
 
 special contracts still admissible, 225. 
 necessity of notice, 229. 
 information to be given by owner, 230. 
 how owner's duty to be performed, 230. 
 demand of payment of increased charge, 231. 
 rule in Behrens v. The Great Northern Railway Co. , 231. 
 declaration, effect of, 233. 
 meaning of the word "loss," 234. 
 effect of statute, private notices, 234, 236, 249. 
 special contracts by tickets or notices, 237. 
 repudiation by owner, 238. 
 owner's remedy, 239. 
 private notice, what is, 239-241. 
 special terms in memorandum, 241-243. 
 constructive knowledge, 243. 
 doctrine of rules, 244. 
 reconciliation of cases, 245. 
 rule in Shaw v. York, &c. Railway Co., 246. 
 earner's duty laid aside, how, 247-249. 
 interpretation of private notices, 249. 
 distinction made as to different classes of carriers, 250. 
 modification of rules, 250. 
 reasonable conditions, 251, 256, 257-262. 
 amount recoverable, 251. 
 proof of value, 252. 
 
 contract must be signed, 252, 254, 257, 258-263. 
 railway and canal carriers may still make special contracts, 252. 
 act construed, 253. 
 
INDEX. 759 
 
 COMMON CARRIERS — continued. 
 
 reasonable conditions, 254. 
 
 effect of notice, 254. 
 
 as to animals, what conditions are reasonable, 262. 
 
 where drover goes with animals, 263. 
 
 perishable goods, 265. 
 
 dogs, 266. 
 
 liability for negligence, 267. 
 
 excessive charge, 267. 
 
 misconduct of company, 267. 
 
 conveyance of goods by passenger train, 268. 
 
 alternative method of carriage, 268. 
 
 cannot free themselves from all risk, 269. 
 
 assumption of risk by owner, 269. 
 
 rule in Kimball o. Rutland, &c. R. R. Co., 269, n. 
 
 rule in Farmers', &c. Bank v. Champlain Transp. Co., 270, n. 
 
 when carrier takes goods at reduced rates in consideration that 
 owner assumes risks, rule, 271-273. 
 
 see Peek v. North Staffordshire R. R. Co., 271. 
 
 delay caused by negligence, stipulation against unreasonable, 272. 
 
 see Allday v. Great Western R. R. Co., 272. 
 
 not liable for injuries resulting from "proper vice" of animals, 
 273-275. 
 
 see Kendal v. South-Western R. R. Co., 273-276. 
 
 burden of proof in such cases, 275, 276. 
 
 under English statutes, railway or canal carrier cannot free himself 
 from liability for injuries caused by his negligence, 277. 
 
 what is sufficient declaration of value under statute, 278. 
 
 casual statement not sufficient, 279. 
 
 personal risk of, 279. 
 
 goods of a dangerous nature, 280. 
 
 owner of, liable for not disclosing dangerous character of, 281, 282. 
 
 rule in Hearne v. Garton, 282. 
 
 duty of carrier to deliver goods, 285-355. 
 
 See Delivery by Caeeiee. 
 
 restrictions upon, 357. 
 
 See Restrictions upon Caemebs. 
 CONDITIONS, 
 
 reasonable or not, 254. 
 
 special, necessary by class of goods, 265. 
 
 as to animals, 262, 266. 
 
 perishable goods, 265. 
 CONNECTING CARRIERS. See Common Caeeiees. 
 CONTRACT, 
 
 carrier may limit his liability by, 192-196. 
 
 of passenger carrier, what is implied, 533-543. 
 See Common Carriebs. 
 CUSTOM, 
 
 of carrier important in determining duty and responsibility of, 157. 
 
760 INDEX. 
 
 CUSTOM — continued. 
 
 effect of, in determining nature and extent of carrier's duties, &o. , 
 
 153, 157. 
 limitation of liability of carrier by, 192. 
 
 D. 
 
 DAMAGES, 
 
 for loss of or injury to goods, 659. 
 
 consequential, 664, 667. 
 
 see Hadley v. Baxendale, 664. 
 
 for breach of contract, 665. 
 
 see Davis v. North-Western Railway Co., 668. 
 
 see Simmons v. South-Eastern Railway Co., 668. 
 DANGEROUS GOODS, 
 
 carrier not liable for destruction of, when, 280. 
 
 owner liable to carrier for not disclosing nature of, 281. 
 DECLARATION. See Actions by and against Carriers ; Forms, 
 
 697-743. 
 DELIVERY BY CARRIER, 
 
 duty of carrier to deliver, 285-290. 
 
 what amounts to, 285-290. 
 
 where must be made, 285-290. 
 
 when responsibility ceases, question for jury, 296. 
 
 delivery within reasonable time, 290. 
 
 delay occasioned by act of God, 291-300. 
 
 recovery of expenses, 291-300. 
 
 loss of profit, 300. 
 
 delivery must take place as early as possible, 300. 
 
 delivery at reasonable time and proper place, 301. 
 
 usage as to, 287, 289, 290, 303, n. 
 
 when only bound to deliver at wharf or warehouse, 287. 
 
 owner must be ready to receive, 287. 
 
 rule when goods arrive on Sunday or legal holiday, 287. 
 
 see Richardson v. Goddard, 287. 
 
 rule when consignee lives at distance from place of delivery, 288. 
 
 delivery by vessels, 289. 
 
 rule when whereabouts of consignee is unknown to carrier, 289, n. 
 
 rule when consignee is present when goods arrive, 299, n. 1. 
 
 rule when there are two by same name to whom goods are sent, 
 302, n. 3. 
 
 proper time, 301. 
 
 manner of delivery, 301. 
 
 Merchant Shipping Act, 302. 
 
 proper place of delivery, 302. 
 
 liability for misdelivery, 303. 
 
 what constitutes delivery, 306. 
 
 delivery at house of consignee, 301. 
 
 confirmation of decision, 308. 
 
INDEX. 761 
 
 DELIVERY BY C ARRIER — continued. 
 return of parcel to consignor, 309. 
 carrier's duty when consignee refuses to accept, 309. 
 duties of carrier as bailee, 310. 
 when liability ceases, 310. 
 loss in warehouse, 311. 
 
 when warehousing is part of carrier's duty, 312. 
 modification of duty of delivery, 312. 
 other modifications of duty, 313. 
 due notice of arrival, duty of carrier to give, 301, 314. 
 construction of bill of lading, 315. 
 delivery of passengers' luggage, 315. 
 continuance of duty, 316. 
 modification of carriers' duty, 317. 
 when delivery takes place, 317. 
 claim of passenger, 318. 
 delivery to person, 319. 
 delivery to consignee's agent, 319. 
 delivery to right person, 319. 
 misdelivery, 320. 
 
 delivery to wrong person is a conversion, 302, n. 
 see Southern Express Co. v. Van Meter, 323, n. 
 instances in which carrier was held chargeable for misdelivery, 
 
 303, n., 320, n. 
 see American Express Co. v. Fletcher, 324, n. 
 see Weed v. Barney, 304, n. 
 
 carrier may require evidence of the identity of consignee, 320, n. 
 see McEutee v. New Jersey Steamboat Co., 321, n. 
 duty with respect to delivery, 321. 
 reasonableness of, question for jury, 322, n. 
 rule' when goods are fraudulently addressed to person by fictitious 
 
 name, 324, n.-337, n. 
 see Duff v. Bland, 324, n. 
 see Winslow ». Vermont, &c. R. R. Co., 324, n. 
 see Price v. Oswego, &c. R. R. Co., 325, n. 
 see Houston, &c. R. R. Co. v. Adams, 326, n. 
 see Norwalk Bank v. Adams Express Co., 329, n. 
 see Dunbar v. Boston, &c. R. R. Co., 330, n. 
 proof of non-delivery, 334. 
 when non-delivery is excused, 338. 
 countermand by consignor, when it may be made, 338. 
 carrier's compliance, 339. 
 delivery at place appointed by consignee, 340. 
 non-delivery by order of consignee, 341. 
 duty discharged by payment of damages, 341. 
 claim of ownership, 342. 
 carrier cannot dispute bailor's title, 342. 
 general rule, 342. 
 bailee's situation, 343. 
 
762 INDEX. 
 
 DELIVERY BY CARRIER — continued. 
 
 bond fide delivery of goods not belonging to bailor, 344. 
 
 rule in White v. Bartlett, 345. 
 
 carrier's position, 346. 
 
 1 & 2 Vict. c. 58, 347. 
 
 stoppage in transitu? what it is, 348. 
 
 what terminates journey, 348. 
 
 right of stoppage in transitu, generally, 349. 
 
 to whom notice must be given, 350. 
 
 constructive possession, 350. 
 
 possession by marking or taking possession, 351. 
 
 action against carrier for refusing to give up goods, 351. 
 
 completed delivery ends right to stop in transitu, 352. 
 
 possession of goods by consignee, 352. 
 
 DOGS, 
 
 conditions as to carriage of, reasonable when, 266. 
 
 DUTIES, 
 
 of common carriers. See Common Carriers. 
 
 E. 
 EVIDENCE, 
 
 necessary to exonerate carrier from liability on ground that loss 
 arose from act of God, 183. 
 
 EXEMPLARY DAMAGES, 
 
 recoverable when, 627. 
 EXPRESS AGREEMENTS, 
 
 limiting liability of carriers. See Common Carriers. 
 
 F. 
 
 FARE, 
 
 duty of passenger to pay, 530. 
 
 FORMS, 
 
 of pleading, &c., 703-743. 
 
 G. 
 
 GENERAL NOTICE, 
 
 effect of, 205. 
 by placard, 216. 
 by other means, 216. 
 what is effectual, 217. 
 onus of proof, 209. 
 
 See Common Carriers. 
 
 GRATUITOUS BAILEES. See Bailments. 
 
 GRATUITOUS CARRIERS. See Carriers. 
 
INDEX. 763 
 
 H. 
 HACKNEY COACHES. See Carriers or Passengers. 
 
 HORSE-RAILROAD COMPANIES, 
 
 not liable for freight, 70, n. 1. 
 
 See Carriers of Passengers. 
 HOUSE, 
 
 delivery at, of consignee, 307. 
 
 HOYMEN, 
 
 common carriers, when, 74. 
 
 INEVITABLE ACCIDENT, 
 
 what is, 166. 
 
 distinction between, and act of God, 166. 
 
 goods lost by, 180. 
 
 See Common Carriers. 
 INNKEEPERS, 
 
 similarity between duties of, and carriers, 149. 
 
 J. 
 JOINDER, 
 
 of trover and case, 596. 
 
 L. 
 LATENT DEFECTS, 
 
 in conveyances, &c, liability of carrier of passengers for injuries 
 from, 507, 538. 
 
 LEAKAGE, 
 
 carrier not liable for loss by, when, 183-185. 
 
 LIEN. See Rights of Carriers. 
 
 LIGHTNING, 
 
 goods destroyed by, held to be destroyed by act of God, 168, n. 1. 
 
 LIMITATION, 
 
 of liability of carrier, 191. 
 by custom, 192. 
 
 M. 
 MANDATOR, 
 
 liable to bailor when, 32, 33. 
 
 See Carriers. 
 MERCHANDISE, 
 
 packed in trunks, &c, carrier not liable for, 133-137, 138, also n. 2. 
 
764 INDEX. 
 
 MISDELIVERY, 
 
 carrier liable for, 302, n. 
 
 instances in which carrier was held liable for, 303, n. 
 see Weed v. Barney, 304, n. 
 
 carrier may require evidence of identity, 320, n. 2. 
 See Delivery by Carrier. 
 
 N. 
 
 NATURAL CAUSES, 
 
 carrier not liable for loss resulting from, 1S5. 
 NATURAL DECAY, 
 
 carrier not liable for loss by, 183-185. 
 
 NEGLIGENCE, 
 
 degrees of, 8. 
 
 slight, what is, 8. 
 
 ordinary, 8. 
 
 gross, 8, 15, n. 1, 19-22, 21, n. 1. 
 distinction between, and fraud, 8. 
 distinction between, and misfeasance, 9. 
 application of doctrine of, 9, 10. 
 what constitutes, how determined, 22. 
 degree of, question for jury, 19. 
 how estimated, 23-26. 
 ordinary, what is, 42, 43. 
 which does not cause loss, rule as to, 181. 
 what is due care, &c, 495. 
 
 NEGLIGENT PACKING, 
 
 when carrier not liable for losses resulting from, 185. 
 
 NOMINAL DAMAGES, 
 
 recoverable when, 692. 
 NOTICE, 
 
 that baggage is at risk of owner does not defeat carrier's liability 
 for, 127. 
 
 carrier cannot exclude liability by, 196. 
 
 rule in Riley v. Home, 196. 
 
 to what it applies, 197. 
 
 principle applicable to, 198. 
 
 in Pennsylvania, liability may be restricted by general notice, 
 200, n. 
 
 in most of the States neither a public nor a general notice is suffi- 
 cient, 200-202. 
 
 general notice, effect of, 205. 
 
 must come to knowledge of shipper, 205. 
 
 extinction of common-law duties by, 209. 
 
 onus of proof as to, 209. 
 
 rule in Macklin ». Waterhouse, 209. 
 
 rule in Blossom v. Todd, 209. 
 
INDEX. 765 
 
 NOTICE — continued. 
 
 means by which brought to owner's notice, 215. 
 by placards, 216. 
 on board in office, 216. 
 effectual, what is, 217. 
 notice to principal, 212. 
 
 See Common Carriers. 
 by carrier to consignee, 314, 401. 
 
 See Delivery by Carrier. 
 
 P. 
 
 PALACE-CAR COMPANIES, 
 
 liability of, for baggage of passenger, 125, n. 
 
 PARTIES, 
 
 non-joinder of, 595. 
 
 PARTNERS, 
 
 as common carriers, rule as to, 110, 111. 
 
 PASSENGERS, 
 
 liability of carriers to, 112, 113, n. 1,-115. 
 duty of carriers of, 492-548. 
 
 See Carriers of Passengers. 
 
 PASSENGERS, CARRIERS OF. See Carriers of Passengers. 
 
 PASSENGER'S LUGGAGE- See Baggage. 
 
 PASSENGER RAILWAY, 
 what is, 525. 
 
 PASSENGER RAILWAY TICKET, 
 
 duty of passenger to show and deliver, 544. 
 
 PERISHABLE GOODS, 
 
 what conditions as to, are reasonable, 265. 
 
 PERSONAL INJURIES, 
 
 actions for. See Actions against and by Carjriers. 
 PIRATES, 
 
 goods taken by, 178. 
 
 PLACARD, 
 
 notice by, 216. 
 PLACE, 
 
 of delivery. See Delivery by Carrier. 
 PLATFORM ACCOMMODATIONS, 
 
 duty of carrier as to, 504. 
 PLEADINGS, 
 
 forms of, 703-743. 
 PRESUMPTION, 
 
 of negligence arises from loss of goods, 44. 
 
766 INDEX. 
 
 PRIVATE CARRIERS, 
 
 who are, 34-42 and note, 70, n. 3. 
 
 illustrations, n. 1, p. 34 et seq. 
 
 care required from, 34-43. 
 
 liable for loss resulting from ordinary negligence, 42. 
 
 what is ordinary negligence, 42, 43. 
 
 what is ordinary care, 42, n. 1. 
 
 loss of goods raises presumption of negligence, 44, 45. 
 
 limitation of liability by common carrier reduces him to, when, 
 
 45-49. 
 assumption of responsibility by, 49-55. 
 effect of continued custody of goods by owner, 55-62. 
 rule in Whalley v. Wray, 62. 
 duty of, enlarged by contract, 63-66. 
 rule in Robinson v. Dunmore, 63. 
 
 PUBLIC ENEMIES, 
 
 who are, 178. 
 
 QUEEN'S ENEMIES, 
 
 who are, 178. 
 
 Q- 
 
 E. 
 
 RAILROAD COMPANIES, 
 
 held not to be common carriers of cattle, in Michigan, 84, n. 1. 
 
 see Michigan, &c. R. R. Co. v. McDonough, 84, n. 1. 
 
 not insurers of live animals, for injuries resulting from their own 
 
 vice, 274. 
 see Kendal v. Southwestern R. R. Co., 273. 
 burden of proof in such cases on carrier, 275. 
 
 RECEIVING-HOUSE, 
 
 carrier may have, 158. 
 
 may only be bound to receive at, 157. 
 
 REDUCED RATES, 
 
 rule when, carrier takes goods for, in consideration that owner as- 
 sumes risk, 271. 
 
 RESTRICTIONS UPON CARRIERS, 
 
 modifications in law of carriers, 357. 
 duties of railway carriers, 358. 
 restrictions upon railway carriers, 359. 
 carriage" of mails, troops, &c, 359. 
 government inspection and control, 360. 
 notice of certificate, 361. 
 punishment of servants, 361. 
 railway companies as common carriers, 362. 
 dangerous goods, 363. 
 
INDEX. 767 
 
 RESTRICTIONS UPON CARRIERS — continued. 
 
 by-laws: their purposes, 363. 
 
 provision as to by-laws, 363. 
 
 publication of by-laws, 364. 
 
 proof of publication, 365. 
 
 nature of these provisions, 366. 
 
 power to make by-laws construed, 367. 
 
 what by-laws can be made, 368. 
 
 way powers must be exercised, 369. 
 
 notice of by-laws, what is sufficient, 369. 
 
 restriction of preferences, 371. 
 
 railway monopoly, effect of, 371. 
 
 17 & 18 Vict. c. 31, 372. 
 
 definition of words used, 373. 
 
 application to court, &c. 374. 
 
 power of court to rescind or vary order, 375. 
 
 regulations issued by court, 375. 
 
 application for rule; by summons, 375. 
 
 order, 376. 
 
 copies of affidavits to be furnished, 376. 
 
 fresh affidavits, 376. 
 
 common-law rights of consignors, &c, 376. 
 
 difficulty of decisions under this statute, 377. 
 
 question considered, 378. 
 
 extent and application of statute, 379. 
 
 chancery jurisdiction not abridged, 380. 
 
 not absolutely prohibited from giving different rates, 381. 
 
 proceedings and doctrine adopted in Oxlade v. North-Eastern Rail- 
 way Co., 381-384. 
 
 Ransome v. Eastern Counties Railway Co., 384. 
 
 meaning of " undue and unreasonable preference," &c, 385. 
 
 object of legislature, 386. 
 
 principles of inequality, 387. 
 
 when injunction will be granted, 387. 
 
 threat of other railways not good ground for reducing rates, 387. 
 
 preference on freight consigned to company, 388. 
 
 what circumstances are to be considered, 389. 
 
 where conveyance is adapted to company's convenience, 391. 
 
 policy of the law, 391. 
 
 where arrangements beneficial to individuals may be made, 392. 
 
 where large quantities are guaranteed, 392. 
 
 reduction on account of cheapness not an undue preference, 393. 
 
 agreement to employ other lines, &c, 393. 
 
 principle involved, 394. 
 
 rates must not operate to disadvantage of third persons, 394. 
 
 separate interests vested in same company, 395. 
 
 position of company as to separate interests, 396. 
 
 where company seeks to promote its own interests without reference 
 to others, 396. 
 
768 INDEX. 
 
 RESTRICTIONS UPON CARRIERS — continued. 
 
 advantage must be given to all under same circumstances, 397. 
 where interest of the company causes unreasonable disadvantage, 
 
 396. 
 court will prevent what is, in effect, injustice, 397. 
 principles of the decision, 399. 
 railway company's two capacities, 400. 
 preferences considered, 400. 
 when contract for special rates is justified, 401. 
 legitimate competition, &c, 402. 
 unreasonable prejudice, 402. 
 agent's receiving-houses, 403. 
 stational arrangements, 404. 
 
 undue preference with other carriers of passengers, 404. 
 what proof necessary to support injunction, 405. 
 time of closing goods station, 405. 
 application of act as to facilities for storing coal, 406. 
 as to court's jurisdiction under act, 407. 
 question of method, 409. 
 fares, passengers, and trains, 409. 
 granting of season tickets, 410. 
 
 inconvenience to public, &c, must be shown to warrant interfer- 
 ence with branch lines, 410. 
 unequal charges, 411. 
 practice on remedy, 412. 
 affidavit, 412. 
 attachments, 413. 
 costs, 413. 
 
 restrictions independent of statute, 414. 
 power of railway companies to impose toll, 415. 
 " manufactured goods," what are, 415. 
 construction of special acts, 416. 
 inequality of charge, 416. 
 packed parcels, 416. 
 
 how equality of charge is to be estimated, 417. 
 extortion under company's special act, 418. 
 reduction in favor of carriers for loading, 418. 
 weight of parcels, &c. , 419. 
 principles, 419. 
 
 provisions of act considered, 421. 
 proviso for collection and delivery of goods, 421. 
 change of practice, 422. 
 
 strictness with which special acts are construed, 422. 
 terminal charges in relation to special act, 423. 
 charges for packed parcels, 425. 
 rules of construction, 425. 
 certain words construed, 426. 
 packed parcels, inequality of charge, &c, 426. 
 probable result of the system, 428. 
 
INDEX. -769 
 
 RESTRICTIONS UPON CARRIERS — continued. 
 
 carriers' powerto prevent competition by other carriers, 428. 
 
 charge for "smalls," 430. 
 
 every special act to be specially considered, 430. 
 
 where equality clause does not operate, 431. 
 
 separate parcels, 432. 
 
 contract made in foreign country, 432. 
 
 31 & 32 Vict. c. 119, 432. 
 
 provision to secure equality when railway also runs steamers, 433. 
 
 bound to furnish particulars of charges, 433. 
 
 when two railways are worked by one company, 434. 
 
 mileage, 434. 
 
 recovery of over-charges, &c. , 435, 
 
 where money was paid to obtain possession of goods, 436. 
 
 restriction upon other carriers, 437. 
 
 assimilation of railway and canal traffic, 438. 
 
 company subject to by-laws of other company whose canal they 
 
 may use as carrier, 439. 
 powers of such company, trustees, &c., 440. 
 tolls to be charged equally to all, 440. 
 liability of such company, 441. 
 light goods and heavy goods, 442. 
 the rules of construction applicable to such acts, 442. 
 rule in Lee v. Manchester Canal Company, 443. 
 equality clause in a canal act, &c, 444. 
 restrictions on carriers by water, 444. 
 inapplicability of some restrictions to ship-owners, 445. 
 
 RIGHTS OF CARRIERS, 
 
 relations of right and duty considered, 447. 
 carriers' right to retain goods bailed to them, 448. 
 insurable interest in goods, 449. 
 lien, 450. 
 
 property remains in consignee, 450. 
 lien a qualified right, &c, 451. 
 when liens at law exist, 451. 
 two kinds of lien, particular and general, 451. 
 question as to expediency of general lien, 452. 
 courts discourage general liens, 452. 
 general usage ; carrier's lien ; effect of general notice, 452. 
 creation of general lien by notice, by contract, &c, 454. 
 proposed restriction on this right, 454. 
 distinction between duties, 455. 
 restriction of the right to create lien's, 455. 
 right of stoppage in transitu not affected by, 455. 
 right of lien applies to passenger's luggage, 456. 
 where consignor is wrongful owner, 458. 
 custom of trade as to wharfinger and warehouseman, 463. 
 limitation or cessor of right of lien by contract, 464. 
 49 
 
770 INDEX. 
 
 RIGHTS OF CARRIERS — continued. 
 
 where charges not to be paid until future date, 464. 
 
 over what goods lien extends, 464. 
 
 where contracts are not separate, 465. 
 
 lien lost with loss of possession, 465. 
 
 lien of ship-owner, 465. 
 
 express stipulations, 466. 
 
 modifications by revenue regulations, 467. 
 
 termination of lien, 467. 
 
 lien on passenger's luggage, 468. 
 
 rule as to a number of parcels, 469. 
 
 where there are two contracts, 469. 
 
 where carrier is charterer of ship, 469. 
 
 who has legal possession of ship, 470. 
 
 no lien without actual or constructive possession, 471. 
 
 stipulations equivalent to an actual demise, 472. 
 
 how question of ownership is to be decided, 473. 
 
 owner's power to reserve his right of lien, 474. 
 
 where no lien exists, 475. 
 
 lien for port charges, 475. 
 
 payment of freight at lading of ship or on delivery, 476. 
 
 payment at certain subsequent date, 477. 
 
 revival of lien, 477. 
 
 remuneration, 478. 
 
 freight; express agreement, 478. 
 
 when owner is to be treated as a carrier, 479. 
 
 when freight is due, 480. 
 
 where right commences, 480. 
 
 arrangements for conveyance, 481. 
 
 mode of calculating freight in certain cases, 482. 
 
 capture; recapture; transshipment, 482. 
 
 apportionment of freight, 483. 
 
 when performance of voyage is impossible, 483. 
 
 probable holding of a court of equity, 485. 
 
 abandonment of cargo by owner, 486. 
 
 legality of voyage, 487. 
 
 right to cargo, 487. 
 
 8 & 9 Vict. c. 20, § 27, 487. 
 
 construction of statute, 489. 
 
 ROMAN LAW, 
 
 relating to carriers, 181. 
 
 S. 
 SERVANTS, 
 
 carrier liable for acts of, when, 104-109. 
 effect of contracts with, 109. 
 
 SHIPS, 
 
 freight by. See Rights op Carriers. 
 
INDEX. 771 
 
 SPECIAL CONTRACTS, 
 
 limiting liability of carrier. See Common Cakkieks. 
 
 STATIONAL ACCOMMODATIONS, 
 duty of carrier as to, 500, 503. 
 
 STATUTES, 
 
 11 Geo. IV. and 1 Will. IV., provisions of, 220-225. 
 See Common Carriers. 
 
 STOPPAGE IN TRANSITU, 
 right of, 349. 
 
 what terminates journey, 350. 
 constructive possession, 350. 
 marking or taking possession, 351. 
 completed delivery, ends right of, 352. 
 possession by consignee, 352. 
 
 T. 
 
 TELEGRAPH COMPANY, 
 
 reasonable regulations by, 268. 
 unrepeated message, 268. 
 
 TRAMWAYS. See Carriers of Passengers. 
 
 TROVER AND CASE, 
 joinder of, 596. 
 
 V. 
 
 VALUE, 
 
 rule when Shipper of goods deceives carrier as to, 193, 194, 208. 
 shipper not bound to disclose value of, unless, 193, 194. 
 see Orange County Bank v. Brown, 194. 
 
 University Press: John Wilson & Son, Cambridge. 
 
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