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performance of which he complains: Cotterill v. Cuff, 4 Taunt. 285. So here, the duty to carry and deliver within a reasonable time arises out of the defendants' position as common carriers, and it was not necessary to show in the declaration that it was subject to any exceptions or qualifications. [COCKBURN, C. J.-In Hughes v. The Great Western Railway Company, it was distinctly held that the circumstance of the company having received the pigs under a special contract was not consistent with the allegation that they received them as common carriers to deliver within a reasonable time. That case is precisely in point. The special contract there *differs in no degree from *18] the contract proved here.] The circumstances of that case were very peculiar: the learned judge thought there was no evidence for the jury; and the counsel for the plaintiff, acquiescing in that ruling, consented to be nonsuited. The first part of the 17 & 18 Vict. c. 31, s. 7, imposes upon the company the liability of common carriers; and they are only enabled to get rid of the effect of that, by showing that their primâ facie liability is limited by a special condition which the court or judge shall deem just and reasonable, and which shall be in writing, and signed by the party. In Simonds v. The Great Northern Railway Company, 18 C. B. 805 (E. C. L. R. vol. 86), there was a plea setting up the special contract, with an averment that the loss arose out of the circumstances provided against by the special contract. Indeed, in all cases since the passing of that act, the special contract has been pleaded. [COCKBURN, C. J.-How do you find the cases before the act, where the carrier's liability was limited by notice?] The practice was to declare generally, leaving the carrier to set up the qualification or restriction, Clarke v. Gray, 6 East, 564: but such notice did not protect the carrier against the consequences of gross negligence or felony of his servants: Bodenham v. Bennet, 4 Price, 31; Birkett v. Willan, 2 B. & Ald. 356; Syms v. Chaplin, 5 Ad. & E. 634 (E. C. L. R. vol. 27); Butt v. The Great Western Railway Company, 11 C. B. 140 (E. C. L. R. vol. 73). Cur. adv. vult.

CRESSWELL, J., now delivered the judgment of the court.

In this case,-which was argued before the Lord Chief Justice, and my Brother Crowder and myself,-it seems to the court that the question is one of mere special pleading. The declaration alleged that the defendants were common carriers, and received the goods in question to be carried by them as such common carriers for hire *and reward. The plea traversed the averment that the defendants received the goods as common carriers.

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It appeared in evidence that the defendants did not receive any goods to be carried by them, unless the consignor signed a paper containing various conditions subject to which they were to be carried. It was contended that the conditions were unreasonable, and therefore void by operation of the statute 17 & 18 Vict. c. 31, and that the contract must

be treated as unconditional. The learned judge thought the conditions reasonable, that the contract was special, and that the defendants did not receive the goods to be carried by them as common carriers, and directed a nonsuit.

The court is of opinion that he was right. The case of Latham v. Rutley, 2 B. & C. 20, 3 D. & R. 211, appears to be directly in point. That was assumpsit against the defendants as common carriers. The declaration stated that the plaintiffs, at the request of the defendants, delivered a parcel to them to be carried from London to Dover, and there delivered, and that the defendants, in consideration thereof, and for hire and reward, undertook to carry safely, but through their negligence the parcel was lost. The jury found that the contract for the carriage of this parcel was subject to the exception of fire and robbery, but that the loss was not within the exception. The plaintiff had a verdict, subject to a motion for a nonsuit. The Solicitor-General, showing cause, contended that the action was founded on the common law liability of carriers, and that the proviso in their favour did not alter the nature of the contract, but, if the loss happened by either of the causes excepted, that was matter of defence; whereupon Holroyd, J.,— an admirable pleader,-observed: "It does not appear that the defendants received the goods upon their common law liability;" and the rule for a nonsuit was made absolute.

*It was argued in the present case, that the case of Latham v. [*20 Rutley, being in assumpsit, was not an authority. As far as the question determined at Nisi Prius in this case is concerned, it seems to the court to make no difference whether it was in assumpsit or case. But the recent case of Walker v. The York and North Midland Railway Company, 2 Ellis & B. 740, was in case. The declaration alleged that the goods were delivered by the plaintiff to the defendants as common carriers, and received by them as common carriers, to be carried, &c. Pleas,-secondly, a traverse of the averment that the defendants received the goods as common carriers on the terms alleged,―thirdly, setting out a special contract. Lord Campbell, in delivering the judgment of the court, says,- The declaration alleges that the defendants received the goods as common carriers, with a common-law liability. The second plea says that they did not receive them on those terms; and the third plea, that they received them on certain conditions. Is there not evidence that the defendants had not received them on the terms alleged, which is the second issue? and that there was a special contract, which is the third?" The court cannot distinguish either of those cases from the present, and therefore think that the rule for setting aside the nonsuit must be discharged.

The York, Newcastle, and Berwick Railway Company, App., Crisp, Resp., 14 C. B. 527 (E. C. L. R. vol. 78), is another authority to the same effect. Rule discharged.

Prideaux, for the plaintiff, asked leave to appeal, under the 17 & 18 Vict. c. 125, s. 35.

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WILLIAMS, J.-Neither my Brother Willes nor *myself (a) heard the case argued, and therefore we could not take upon ourselves to give any leave to appeal. Besides, I conceive the case to be

an extremely plain one.

WILLES, J.-Wise v. The Great Western Railway Company, 1 Hurlst. & N. 63,† and Pardington v. The South Wales Railway Company, 1 Hurlst. & N. 392,† are precisely in accordance with the judgment just pronounced. I must confess I thought the point had been settled in all the courts.

Prideaux continuing very perseveringly to urge the hardship of shutting the plaintiff out from contesting the propriety of the judgment, in a court of error, and suggesting that it was not a case in which the other side could be at all prejudiced by the delay,

WILLIAMS, J., said:-Without meaning to intimate the slightest doubt, but merely on the ground that neither of the members of the court now present heard the case argued, we will give the plaintiff time to apply to one of the other judges for leave to appeal. There will be ample time for that; for my Brother Cresswell does not leave town for the circuit until Saturday, and the Lord Chief Justice and my Brother Crowder not until Monday next. All we can do is, to stay the proceedings until Tuesday, to give you an opportunity to make your application to one of those learned judges.

The application was made, but not granted.

(a) The only judges in court.

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*HALL v. CONDER and Another. Feb. 20.

By an agreement,-reciting that the plaintiff “had invented a method for the prevention of boiler explosions, and had obtained a patent for the use of the same within the united kingdom, and was desirous of taking out patents in France, Belgium, and such other places as might be found expedient," and further reciting that he had disposed of a moiety of the English patent, and had applied to the defendants to purchase the other moiety, and to assist him in taking out the foreign patents,-it was agreed that the defendants should pay to the plaintiff 25007. in such manner as should be mutually agreed on, and also a proportion of the net profits: and, in consideration of such engagement on the part of the defendants, the plaintiff "agreed to make over and transfer, and did thereby accordingly make over and transfer to the defendants one half of the said foreign patents when the same should be obtained, and the above-mentioned one half of the English patent therein before referred to."

A declaration on the above agreement, averring that the plaintiff was ready and willing to do and did all things necessary on his part to entitle him to the performance of the agreement, and to the payment of the 25007. by the defendants, alleged for breaches,-first, that, although a reasonable time had elapsed, the defendants refused to pay the 25007. or any part thereof,secondly, that, although a reasonable time had elapsed, the defendants refused to enter into or make any agreement or arrangement with the plaintiff respecting the manner in which the 25007. should be paid,-thirdly, that, although a reasonable time had elapsed, the defendants refused to fix upon or agree with the plaintiff respecting the time or times at which the 25007. or any part thereof should be paid.

The defendants pleaded, to the first breach, that, at the commencement of the action, no agreement had been come to as to the manner in which the 25007. should be paid. They also demurred to the second and third breaches. And, as to all the breaches, they further pleaded, -secondly, that the invention was wholly worthless and of no public utility, and was not new as to the public use thereof in England, and that the plaintiff was not the true and first inventor thereof,-thirdly, that, after the making of the agreement, and before the time for performing it had arrived, and before breach, and before the commencement of the suit, it was agreed that the defendants should pay and the plaintiff receive 2001. as the balance then to be paid of the 25007. stipulated for, and that the said sum of 2007. should be in full satisfaction of all claims of the plaintiff in respect of the agreement until some profit should have been realized by the defendants from the invention and the letters patent; that, in pursuance of such agreement, the 2001. were paid and received by the plaintiff in such full satisfaction as aforesaid; and that no profit had been realized from the invention.

The plaintiff demurred to each of these pleas :—

Held, that the second breach was well assigned; for that the time for payment of the money had arrived; and, if the agreement as to the mode of payment was a condition, the defendants, by refusing to enter into any agreement, had rendered the performance of it impossible, and had either placed the plaintiff in the same position as if there had been no condition, or had become liable to a claim of the same amount, as damages for wrongfully refusing to agree. Held also, that the second plea was bad; for, that, in the absence of any allegation of fraud, it must be assumed that the plaintiff was an inventor, and there was no warranty, express or implied, either that he was the true and first inventor within the meaning of the statute of James, or that the invention was useful or new; but that the contract was for the sale of the patent such as it was, each party having equal means of ascertaining its value, and each acting on his own judgment.

Held also, that the third plea was bad, being pleaded to all the breaches, and being no traverse of the first.

Whether the first plea afforded any answer to the first breach,-quære? for, semble, that, if no mode of payment of the 25007, was agreed on, the money would be payable as the law directs where there is no stipulation for agreement.

Leave to add a plea to the second and third breaches (traversing the requests and breaches therein respectively alleged) refused.

The court will not allow execution to issue notwithstanding proceedings in error, under the 150th section of the Common Law Procedure Act, 1852, unless the grounds of error assigned are so frivolous as to be clearly incapable of being sustained on argument.

THIS was an action of debt originally commenced in the Lord Mayor's Court, London, and removed by habeas corpus into this court. *The first count of the declaration stated, that theretofore, and [*23 before the commencement of this suit, to wit, on the 30th of January, 1856, it was agreed by and between the plaintiff and the defendants in the words and figures following, that is to say, "Upper Charles Street, Westminster. Memorandum of agreement made the 30th day of January, 1856, between W. K. Hall, of the United States of America, of the one part, and Francis Conder & Co., of No. 4 Upper Charles Street, Westminster, engineers and contractors, of the other part: Whereas the said W. K. Hall has invented a method for the prevention of boiler explosions, and has obtained a patent for the use of the same within the United Kingdom, and is desirous of taking out patents in France, Belgium, and such other places as may be found expedient: And whereas the said W. K. Hall has already parted with or assigned away an interest of one-half of the said English patent, and is desirous of disposing of the remaining half, to which he hereby declares that he has full right and title: And whereas the said W. K. Hall has applied to the said Francis Conder & Co. to assist him in

taking out the said foreign patents, and also to purchase his abovestated interest in the said English patent: It is hereby agreed between the said parties that the said Francis Conder & Co. shall forthwith proceed to take out and secure such patents for France, Belgium, and such other places as may be mutually agreed on between the said parties to this agreement, with the exception of the United States of America: And it is further agreed that they shall pay to the said W. K. Hall the sum of 2500l. in such manner as shall be mutually agreed *on, *24] and a further sum equal to one-tenth of the net proceeds of onehalf the English patent, from and after the time that the said net profits shall amount to the sum of 20,000l. on the whole patent: And, in consideration of such engagement on the part of the said Francis Conder & Co., the said W. K. Hall agrees to make over and transfer, and does hereby accordingly make over and transfer to the said Francis Conder & Co. one-half of the said foreign patents when the same shall be obtained, and the above-mentioned one-half of the English patent hereinbefore referred to: And the said W. K. Hall further agrees to execute such further legal documents as may be requisite for the due carrying out of this agreement. In witness whereof the said parties have hereto set their signatures the day hereinbefore named. Francis Conder & Co. W. K. Hall." Averment, that, after the making of the said agreement as aforesaid, the plaintiff was ready and willing to do, and did, all things necessary on his part to entitle him to the performance of the said agreement, and to the payment of the said sum of 25001. by the defendants: Yet the defendants, although a reasonable time had elapsed since the making of the said agreement, had wholly neglected and refused, and still did wholly neglect and refuse, to perform the same, in this, that they the defendants, although a reasonable time had elapsed, and they had been often requested to pay to the plaintiff the said sum of 2500l., had hitherto wholly neglected and refused, and still did wholly neglect and refuse, to pay the same, or any part thereof, to the plaintiff;-and in this, that they the defendants, although a reasonable time had elapsed since the making of the said agreement, and although they had been often requested so to do, had hitherto wholly neglected and refused, and still did wholly neglect and refuse, to enter into or make any agreement or arrangement with the plaintiff respecting the manner in which *the said sum of 2500l. should be *25] paid by them to the plaintiff;-and also in this, that the defend ants, although a reasonable time had elapsed since the making of the said agreement, and although often requested so to do, had hitherto wholly neglected and refused, and still did neglect and refuse, to fix upon or agree with the plaintiff respecting the time or times, or respecting any time or times, at which the said sum of 25007., or any portion or instalment thereof, should be paid by them to the plaintiff, &c.

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