will be responsible for the damage they sustain in the carriage through his neglect, though he is not a common carrier, nor has any reward for his labour (6); and this rule holds, although the plaintiff, for greater caution, sends his servant with the goods who pays a person for guarding them, because he apprehends danger of their being stolen P. In Beauchamp v. Powley, 1 M. and Rob. 38. a stage coachman was holden responsible for the loss of a parcel which he had received to carry without reward, it appearing to have been lost through gross negligence on his part. Coach-owners are not liable for injuries which passengers may sustain from inevitable accidents, as from the oversetting of the coach from the horses taking fright, there not being any negligence in the driver9; but otherwise it is, if there be negligence in the driver. A coach owner is bound to convey his passengers in road-worthyr vehicles, and if an acci p Robinson v. Dunmore, 2 Bos. and Pul. 416. q Aston v. Heaven, 2 Esp. N. P. C. 533. r Sharp v. Grey, 9 Bingh. 457. 2 M. and Sc. 620. (6) In a special action on the case, wherein the plaintiff declared that whereas the defendant had undertaken to carry a hare for the plaintiff from A. to B., yet the defendant carried the same so negligently, that he lost it by the way, to the damage of the plaintiff of 101. On demurrer to the declaration, it was objected by Hawkins, Sergeant, that the plaintiff had not declared, on the general custom of the realm relating to carriers, and, therefore, the defendant must be taken to be a private person; if so, there was not any consideration laid, and consequently the promise was merely nudum pactum. 2ndly. The plaintiff had not set forth a delivery of the hare, upon which the promise was made, and for the breach of which promise the action was brought. Probyn and Reynolds, (the only judges in court,) as to the first objection, admitted that the defendant must be taken to be a private person; but it was determined in Coggs v. Bernard, that a private person was answerable, if he undertook the carriage of goods, for a misfeasance, though there was not any consideration and the only difference was, that a common carrier was obliged to undertake the carriage of goods, and a private person was not; but if a private person voluntarily undertook it, he was by law answerable for damage arising from his negligence. As to the second objection, the court said, that the delivery was implied; for it was stated, that the defendant had carried the hare part of the way, which he could not have done without a delivery; and as for the breach of promise, the action was not brought for that, but for the loss of the hare; the promise was only inducement. Accordingly they gave judgment for the plaintiff, Hutton v. Osborne, B. R. M. 3 G. 2. MSS. : dent happen from a defect in construction, the owner is liable, although the defect be out of sight and not discoverable upon ordinary examination. See the duty of coach-owners fully explained by Best, C. J. in Crofts v. Waterhouse, 3 Bingh. 321. The proprietors of a mail-coach are answerable for an injury sustained by a passenger, through the misconduct of their driver. White v. Boulton, Peake's N. P. C. 81. A., a stable-keeper, let to B. four horses to draw B.'s carriage from C. to D. The horses were rode by A.'s servants. Through their negligence, the carriage of I. S. sustained an injury. It was holden that I. S. might maintain an action against A. Sammell v. Wright, 5 Esp. N. P. C. 268. II. Of the Stat. 11 Geo. 4. & 1 W. 4. c. 68. limiting the Responsibility of Carriers by Land, as to the Loss of Parcels of a certain Description. Stat. 7 G. 2. c. 15; 53 G. 3. c. 159; 3 & 4 W. 4. c. 12. s. 24. On the 23rd of July, 1830, an act was passed (11 Geo. 4. & 1 W. 4. c. 68,) by which the liability of carriers by land for hire, for the loss of or injury to parcels of a certain description, has been much altered. It is entitled, "An Act for the more effectual Protection of Mail Contractors, Stage-Coach Proprietors, and other common Carriers for Hire, against the Loss or Injury to Parcels or Packages delivered to them for Conveyance or Custody, the Value and Contents of which shall not be declared to them by the Owners thereof." Such is the title of the act, and then the preamble recites, "That by reason of the frequent practice of bankers and others sending by the public mails, stage-coaches, waggons, vans, and other public conveyances, by land, for hire, parcels and packages containing money, bills, notes, jewellery, and other articles of great value in a small compass, much valuable property is rendered liable to depredation, and the responsibility of mail contractors, stage-coach proprietors, and common carriers for hire, is greatly increased. And through the frequent omission by persons sending such parcels and packages to notify the value and nature of the contents thereof, so as to enable such mail contractors, &c. by due diligence, to protect themselves against losses arising from their legal re sponsibility, and the difficulty of fixing parties with knowledge of notices published by such mail contractors, &c. with the intent to limit such responsibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses; it is then enacted, That no mail contractor, stage-coach proprietor, or other common carrier, by land, for hire, shall be liable for the loss of, or injury to, any article of property of the descriptions following, (that is to say,) gold or silver coin of this realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time-pieces of any description, trinkets, bills, notes of the governor and company of the Banks of England, Scotland, and Ireland, respectively, or of any other Bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign, stamps, maps, writings, titledeeds, paintings, engravings, pictures, gold or silver plate, or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs or lace, or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire, or to accompany the person of any passenger in any mail or stage-coach, or other public conveyance, when the value of such property aforesaid contained in such parcel or package shall exceed the sum of ten pounds, unless at the time of the delivery thereof at the office, warehouse, or receiving-house of such mail contractor, &c. or to their book-keeper, coachman, or other servant, for the purpose of being carried, or of accompanying the person of any passenger as aforesaid, the value and nature of such property shall have been declared by the persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package." By the second section, common carriers, upon delivery of such parcels exceeding the value of 10%., and so declared as aforesaid, may demand an increased rate of charge, which is to be notified by a notice in legible characters affixed in the office; and persons sending parcels are to be bound by such notice, without further proof of the same having come to their knowledge. The third section directs that carriers shall, if required, give a receipt for the parcel, acknowledging the same to have been insured, which receipt shall not be liable to any stamp-duty; and carriers who do not give such receipt, when f Mayhew v. Nelson, 6 C. & P. 58. required, or affix the proper notice, are not entitled to the benefit of this act. By the fourth section, carriers cannot by a notice limit their liability at common law to answer for the loss of any articles in respect whereof they are not entitled to the benefit of this act. By the fifth section, every office of such common carrier shall be deemed a receiving-house, and any one proprietor shall be liable to be sued, and no action shall abate for want of joining any co-proprietor. Special contracts are not to be affected by this acts. Parties entitled to damages for parcels lost or damaged, may recover the extra charges for insurance h. This act does not protect any such common carrier from liability to answer for loss or injury arising from the felonious act of any servant in their employ, nor does it protect any such servant from liability for any loss or injury occasioned by their own personal neglect or misconduct. But common carriers are not to be concluded as to the value of any parcel by the value declared, but the party injured must prove the actual value by the ordinary legal evidence. Money may be paid into court by the common carrier in the same manner and with the same effect as money paid into court in any other action1. Although the foregoing statute in the preamble mentions articles of great value in a small compass, yet the provisions of s. I. in its enacting part are not controlled by those words in the preamble. The terms of that section are general, and it applies to any glass article if exceeding 101. in value. The carriage of glass requires particular attention, and imposes peculiar risk on the carrier. The term "glass" in the act being unlimited, the court would not be justified in saying that it applied to small glasses only, and not to glass of every description. In such a case, therefore, the plaintiff cannot recover, if he does not comply with the terms of the notice in the office, unless he can establish wrongful conduct or gross negligence amounting to a misfeazance, so as to take the case out of the protection intended by the statute. Gross negligence has in many cases been held to affix a liability on a carrier, to which he would not otherwise have been subject; as where he delivered the article to a wrong person"; or where a mode of conveyance different from that agreed for was substituted, viz., stage-coach for mail; or where a g S. 6. i S. 8. k S. 9. 1 S. 10. m Per Bayley, B., Owen v. Burnett, 4 Tyr. 141, 2 Cr. & M. 353. S. C. n Birkett v. Willan, 2 B. & A. 356. Duff v. Budd, 3 Brod. & Bingh. 177. o Garnett v. Willan, 5 B. & A. 53. Sleat v. Fagg, 5 B. & A. 342. parcel was left unprotected in a cart P in a street in London; or carried beyond the place of delivery 4. In every contract for the carriage of goods, between a person holding himself forth as the owner of a lighter or vessel ready to carry goods for hire, and the person putting goods on board, or employing his vessel or lighter for that purpose, it is a term of the contract, on the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for the purpose of employment, for which he offers and holds it forth to the public. And the carrier and lighterman will be responsible for a breach of this implied undertaking, although he should give notice, "that he will not be answerable for any loss or damage, unless occasioned by want of ordinary care in the master or crew of the vessel, in which case he will pay 10l. per cent. on such loss or damage, so as the whole does not exceed the value of the vessel and freight;" because the object of such notice is to limit the responsibility of the carrier in those cases only where the law would otherwise have made carriers answerable for the neglect of others, and for accidents which it might not be within the scope of ordinary care and caution to provide against. In Ellis v. Turner, 8 T. R. 531, where a similar notice was given, the owner of the vessel was holden liable for the whole loss upon the special undertaking of the master. By stat. 7 G. 2. c. 15. s. 1. reciting, that it had been holden that the owners of vessels were answerable for goods made. away with by the masters or mariners, without the knowledge or privity of the owners, whereby merchants were discouraged from adventuring their fortunes as owners of vessels, to the prejudice of trade and navigation, it is enacted,, that, "the owners of vessels shall not be liable for any loss or damage, by reason of any embezzlement, secreting, or making away with (by the master or mariners) of any goods. shipped on board any vessel, or for any act, matter, or thing, damage, or forfeiture, done, occasioned, or incurred by the master or mariners, or any of them, without the privity and knowledge of the owners, further than the value of the vessel with her appurtenances and freight for the voyage, wherein the embezzlement, &c. shall be made." An action was brought against the owner of a vessel to recover the value of a quantity of dollars, shipped by the plaintiff on board the defendant's vessel, bound from London p Smith v. Horne, Holt's N. P. C. 643. 8 Taunt. 144. q Ellis v. Turner, 8 T. R. 531. r Lyon v. Mills, 5 East, 428. s Lyon v. Mills, 5 East, 428. t Sutton v. Mitchell, 1 T. R. 19. |