and conveying the same as aforesaid, wrongfully neglected and omitted to commence or set about the carrying and conveying of the said cheese, and wrongfully delayed so doing for a long and unreasonable time in that behalf, and not in consequence or by reason of any such delay, detention, or cause as in that plea mentioned; and to the fourth plea,that he sued the defendant in this action not only for the loss arising as in that plea mentioned, but also for that the defendants, after they had received into their custody the said cheese for the purpose of so carrying and conveying the same as aforesaid, wrongfully neglected and omitted to commence or set about the carrying or conveying of the said cheese, and wrongfully delayed so doing for a wrong and unreasonable space of time in that behalf, and not during the risk, carriage, or conveyance in that plea mentioned, and that the loss occasioned to him the plaintiff by such last-mentioned wrongful act was other than and no part of the loss in that plea mentioned.

The defendants took issue on the replications to the third and fourth pleas, and pleaded not guilty to the new assignments.

The cause, which was originally commenced in the county court of Bath, and removed by certiorari,—was tried before Channell, Serjt., at the last Summer Assizes for Somersetshire. The facts were as follows: The plaintiff, who is a farmer residing at Timsbury, in the county of Somerset, being desirous of forwarding a quantity of cheese to Bishopstoke, in the county of Hants, for sale at the market to be held there on Thursday, the 15th of November, 1855, caused it to be sent to the Bath Station of the Great Western Railway on Monday, the 12th, paying the carriage to Basingstoke (where the *Great [*11 Western Railway joins the South Western line leading to Bishopstoke), and directing the servants of the Great Western Railway Company to forward it to its destination, which they assured him it would arrive at in time for the next Thursday's market. Relying upon this assurance, the plaintiff went on the 15th to Bishopstoke to attend the market, but the cheese did not arrive; and this action was brought to recover 261. for the loss and expense incurred by the plaintiff in consequence.

It appeared that the course of transit from Bath to Bishopstoke, is, by the Great Western Railway from Bath to Reading, and thence to Basingstoke, and from Basingstoke by the South Western Railway to Bishopstoke; that, in the ordinary course, the plaintiff's cheese should have started from Bath at 10 P. M., on Monday, arriving at Bishopstoke some time on the following day; but that, in consequence of the engine being of insufficient power to propel the whole train of trucks, the cheese was not forwarded from Bath until 4.30 P. M. on Tuesday; that it arrived at Reading on Tuesday night, and might have been sent on to Basingstoke at 5.30 A. M. on Wednesday, but, in consequence of the insufficiency of the "staff" at Reading, it was detained there till

5.30 A. M. on Thursday, and consequently did not arrive at Bishopstoke until the market was over.

It further appeared, that, at the time the cheese was delivered at the Bath station, the plaintiff received from the station master a receipt for the carriage (27. 128. 11d.) of which the following is a copy :

*12]

*Received two pounds twelve shillings and eleven pence for conveyance of the above goods to Basingstoke on the conditions stated on the other side.

66

"For the Great Western Railway,

"JOHN THOMAS."

The conditions printed at the back of the receipt (and to which the plaintiff affixed his signature), were (amongst others) as follows:Ninthly, that they [the company] will not under any circumstances be liable for loss of market or other claim arising from delay or detention of any train, whether in starting, or at any of the stations, or in the course of the journey. The company do not undertake to send goods by any particular train if there be an insufficient number of trucks at the station, or the trucks cannot be conveniently used for the purpose, notwithstanding the goods may have been taken to the station before the time appointed by the company."

On the part of the defendants it was submitted that the goods were not received by them "as common carriers," as alleged in the declaration, but upon the special terms endorsed on the receipt and signed by the plaintiff.

For the plaintiff it was insisted that the conditions were unreasonable and therefore void by operation of the 7th section of the Railway and Canal Traffic Act, 1854,-17 & 18 Vict. c. 31; and consequently that the contract must be treated as unconditional.

The learned judge, upon the authority of the case of Hughes v. The Great Western Railway, 14 C. B. 637, ruled that the defendants did not undertake to carry the goods in question as "common carriers," but upon the special terms mentioned in the conditions; and he accordingly nonsuited the plaintiff.

Kinglake, Serjt., in Michaelmas Term last, obtained a rule nisi for

[*13

a new trial, on the ground that the condition under which the cheese was received by the defendants, *viz. that they the defendants did not undertake to send goods by any particular train, &c., did not apply to and disprove the cause of action upon the facts proved, and that the case ought to have been left to the jury.

Butt, Q. C., and Montague Smith, Q. C., in Hilary Term last, showed cause. The material question is, whether the cheese was received by the defendants under a contract as common carriers or under a special contract. The 7th section of the 17 & 18 Vict. c. 31, enacts, that "every such company as aforesaid shall be liable for the loss of or for any injury done to any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or delivery thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability; every such notice, condition, or limitation 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 the receiving, forwarding, and delivering of any of the said animals, articles, goods, or things, as shall be adjudged by the court or judge before whom any question relating thereto shall be tried, to be just and reasonable: Provided always, that no greater damages shall be recovered for the loss of or for any injury done to any of such animals, beyond the sums hereinafter mentioned, that is to say, for any horse, 50l., for any neat cattle per head, 15l., 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 declared 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 *increased risk and care thereby occasioned, [*14 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 the statute 11 G. 4 & 1 W. 4, c. 68, and shall be binding upon such company in the manner therein mentioned: Provided also, that the proof of the value of such animals, articles, goods, and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensation for such loss or injury: Provided also, that no special contract between such company and any other parties, respecting the receiving, forwarding, or delivering of any animals, articles, goods, or things, as aforesaid, shall be binding upon or affect any such party, unless the same be signed by him or by the person delivering such animals, articles, goods, or things respectively for carriage: Provided also, that nothing herein contained shall alter or affect the rights, N. S., VOL. II.—3

In

privileges, or liabilities of any such company under the said act of 11 G. 4 & 1 W. 4, c. 68, with respect to articles of the descriptions mentioned in the said act." Here, the goods were received upon a special contract within that section; consequently, the first plea was proved, and the nonsuit was right. [CRESSWELL, J.-The plaintiff contends that the special contract did not relieve the defendants from their ordinary liabilities as common carriers.] It may be that some of the stipulations are unreasonable, but still that will not affect those that are reasonable, or make the contract the less a special contract. In The York, Newcastle, and Berwick Railway Company, App., Crisp., Resp., 14 C. B. 527 (E. C. L. R. vol. 78), pigs were delivered by A. at a railway station at Alnwick, to be carried to Newcastle, A. paying the carriage, and receiving a ticket, intimating the terms upon which alone the company *undertook to carry them, one of which was, that "the *15] company be not responsible for the non-delivery of the stock within any certain or reasonable time, nor in time for any particular market, nor are they required to forward by any particular train." an action by A. against the company, in the county court, for injury to the pigs from delay in the conveyance of them, the judge left it to the jury to say whether the company received the pigs as common carriers for hire for carriage, or whether they received them under the special contract set forth in the ticket. The jury having found against the company, this court, on appeal, held that the judge had misdirected the jury, inasmuch as there was no evidence whatever that the company had received the pigs upon any other contract than that set forth in the special contract. That was followed by the case of Hughes v. The Great Western Railway Company, 14 C. B. 637 (E. C. L. R. vol. 78): it was there proved, that, when the pigs were delivered to the defendants, the plaintiff signed a note in which it was stipulated that the defendants would not be liable or responsible for the carriage or delivery of the pigs within any certain or definite time, nor in time for any particular market;" and the learned judge, holding that the contract alleged in the declaration,-which charged the defendants as common carriers, and alleged a breach of duty in not delivering the pigs within a reasonable time,-was not proved, nonsuited the plaintiff: and the court upheld the nonsuit. The decision in these cases is in strict accordance with all the rules of pleading: and the recent statutes make no difference. Shaw v. The York and North Midland Railway Company, 13 Q. B. 347 (E. C. L. R. vol. 66), is an authority to the same effect. [COCKBURN, C. J.-The statute does not make the company cease to be common carriers, though it somewhat lessens their liability as such.] The question here is, not what character the company bears generally, but what is the *nature of the contract they have here entered into If a special one, it ought to have been declared on as such, and the question as to the reasonableness of the conditions

*16]

under s. 7 does not arise: see Simonds v. The Great Western Railway Company, and The London and North Western Railway Company, App., Dunham, Resp., 18 C. B. 805, 826; Wise v. The Great Western Railway Company, 1 Hurlst. & N. 63;† Pardington v. The South Wales Railway Company, 1 Hurlst. & N. 392, 26 L. J. Exch. 105.† In this latter case, Bramwell, B., says: "I think the proper construction of the act, is that the company shall not be allowed, by giving general notices, conditions, or declarations, to free themselves from liability for the loss or injury to the cattle carried by them, but that they may do so by making such conditions as shall appear just and reasonable; and that is quite consistent with their making a special contract with the party for whom they carry, with a view of protecting themselves from liability. It would be quite monstrous to say that such a bargain might not be made between man and man. It seems quite reasonable that the company should say, 'We will not be liable for any injury done to the cattle by our servants.' They receive a smaller sum for the carriage of the cattle in consequence of their being exempt by the contract from liability; and it would be very strange if we were to hold, that, after such a contract was made, the owner of the cattle might recover. I think the question of reasonableness under the statute does not arise: but, if it does, I think that such a notice would be reasonable."

[*17

Kinglake, Serjt., and Prideaux, in support of the rule.—There was abundant evidence to show that the injury complained of arose from the negligence of the company's servants. [CRESSWELL, J.-Do you say that all the conditions are unreasonable?] They clearly are *unreasonable; and therefore the contract must be treated as unconditional. [CRESSWELL, J.-If any part be reasonable, the contract upon which the goods were delivered to the defendants was not simpliciter the contract declared on. If there be any exception out of the ordinary responsibility of a common carrier, the declaration that the defendants contracted as common carriers is not made out: Latham v. Rutley, 2 B. & C. 20 (E. C. L. R. vol. 9), 3 D. & R. 211 (E. C. L. R. vol. 16).] Latham v. Rutley was not an action founded upon the breach of duty, but an action of assumpsit, and therefore not applicable here. The liability of the company as common carriers can only be varied by the express provisions of the act, or by some special contract not at variance with its provisions. [COCKBURN, C. J.-There is no contract at all here but the special contract proved.] The fact of their having made a special contract, does not relieve the company from the duty arising from their public profession,-Denton v. The Great Northern Railway Company, 5 Ellis & B. 860 (E. C. L. R. vol. 85),— or exempt them from responsibility for negligence: Wyld v. Pickford, 8 M. & W. 443.† It was therefore competent to the plaintiff to declare generally as he has done here: for, it is always sufficient for a plaintiff to allege so much of a contract or of a duty for the breach or non