1858.

GREAT WESTERN RAILWAY Co.

v.

CROUCH.

vendor shall keep them until they are paid for if the vendor demands the money, and the vendee is not ready to pay it, has the former any further duty to perform ?] A carrier has a remedy by action for the extra expense of warehousing and delivering the goods. But supposing the defendants were not bound to take the parcel again to the office of the plaintiff's agent, they had no right to send it back to London. If so, they might have sent it to Edinburgh or Paris. The fact of the plaintiff's agent being wrong in refusing to pay the carriage, did not justify the defendants in sending the parcel to a distant place. The plaintiff cannot be in a worse situation than a person who wrongfully places goods on the land of another, in which case the latter must remove them to a convenient distance: Forsdick v. Collins (a). A person may abate a nuisance, but in so doing he is bound to take care that he does no unnecessary damage. The same principle pervades the criminal law: in repelling force no unnecessary violence must be used. The defendants should have been ready to deliver the parcel at the most reasonable and convenient place; and the jury have found that it was unreasonable to take it back to London. It is immaterial whether there was a liability to deliver at Plymouth or whether there was a mere bailment; if the latter, the bailment was at Plymouth not in London. In Story on Bailments, § 117, it is said, "The next inquiry is as to the place where restitution is to be made. If a particular place is agreed on between the parties, that of course is to regulate the matter (b). If no place is agreed on, the property ought to be restored at the place where it is found or where it ought to be kept. Depositum eo loco restitui debet, in quo sine dolo ejus est apud quem depositum est;

(a) 1 Stark. N. P. 173.

(b) Dig. Lib. 16, tit. 3, l. 12; Pothier, Traité de Dépôt, n. 56;

Code Civil of France, Art. 1942; Code of Louisiana (1825), Art. 2924.

HILARY VACATION, 21 VICT.

ubi vero depositum est nihil interest" (a). Hudson v. Baxendale (b) shews that where goods are refused by the consignee the carrier is bound to do what is reasonable. Here it was not reasonable, under the circumstances, to send the parcel so soon to London. Time should have been allowed for the agent of the plaintiff to communicate with him: Gibbs v. Stead (c). In Garside v. The Proprietors of the Trent and Mersey Navigation (d), the carrier's responsibility as an insurer was at an end, and he merely held the goods as a warehouseman. But so long as a carrier has a further duty to perform, he is responsible for the safety of the goods: Story on Bailments, §§ 541, 542. Stephenson v. Hart (e) shews that the carrier's responsibility continues until the delivery is complete. Ostrander v. Brown (ƒ) is an authority to the same effect. [Cockburn, C. J.-Assuming that the defendants, having a right to keep the parcel in respect of their lien but only in a convenient place, vexatiously sent it to London, would that amount to a conversion?] Since the Common Law Procedure Act, 1852, evidence that the defendant wrongfully deprived the plaintiff of the use and possession of his goods will support a count in trover. Any exercise of dominion over goods inconsistent with the owner's right amounts to a conversion: Heald v. Carey (g). The distinction between a mere asportavit and a wrongful conversion is pointed out in Fouldes v. Willoughby (h). The second replication to the third plea affords a complete answer to that plea, and if the defendants had any excuse for refusing to deliver the parcel that should have been pleaded by way of rejoinder: Dixon v.

1858.

GREAT WESTERN RAILWAY CO.

v.

CROUCH.

1858.

GREAT WESTERN RAILWAY Co.

v.

CROUCH.

Clark (a).-The Court intimated an opinion that it was not necessary to hear any argument on the point that a demand ought to have been made on the South Devon Company.

Bovill, in reply.-There is no authority for the proposition that the defendants were bound to keep the parcel at Plymouth. It is a mere technical rule which requires a person, who justifies the removal of goods encumbering his land, to allege that he removed them to a convenient distance. The duty of a carrier, qua carrier, terminates on the tender and refusal of the consignee to receive the goods at their place of destination; and if the carrier then retains the goods in respect of his lien, his only obligation is that of a warehouseman, or an involuntary bailee. A depositary has a right to change the place of deposit. The defendants held the goods for the consignor, who resided in London, and moreover the plaintiff's agent was told that they would be sent back to London. A person who is lawfully in possession of goods does not become liable in trover by merely changing their place of custody: Simmons v. Lillystone (b), Thorogood v. Robinson (c).

Cur. adv. vult.

WIGHTMAN, J.-Upon the facts of this case, as they appeared before us upon the argument, I entertain very great doubt whether the appellants were guilty of any neglect or breach of duty; but, however that may be, it seems to me that, as the case stands upon the pleadings, the issue upon the special replication to the third plea was properly found for the respondent (the plaintiff in the Court below.)

(a) 5 C. B. 365.

(b) 8 Exch. 431.

(c) 6 Q. B. 769.

The railway Company pleaded a tender of the goods to the plaintiff in the action on payment for the carriage, but that the plaintiff refused to pay the sum claimed for carriage, wherefore the Company refused to deliver the goods.

The plaintiff in the action replied that within a reasonable time after the Company had tendered the goods for delivery he offered at Plymouth to pay for the carriage of the goods, and requested them to deliver the goods, but the defendants refused to deliver them at Plymouth.

Upon this replication the Company took issue only, without any special rejoinder.

The jury found that the allegations in the replication were proved, as in fact they were, for the Company did refuse to deliver the goods at Plymouth though the carriage was tendered within a reasonable time; but the Company propose to excuse the refusal to deliver at Plymouth, on the ground that they had sent the goods back to London, which they contend they had a right to do. It appears to me that this ground of excuse should have been specially rejoined, and that the Company should have admitted a refusal to deliver at Plymouth, but excused it, supposing it to be an excuse, by alleging that, upon the original refusal of the plaintiff to pay the carriage for them, they had been returned to London; but that, upon a mere denial of the allegations in the replication, the Company could not avail themselves of the affirmative ground of excuse that they had sent them to London.

It seems to me that the real question between the parties would only arise upon a special rejoinder to the special replication to the third plea; but that, as the issues stand, the verdict for the plaintiff is right so far as the special count is concerned; and as to the count in trover I agree in opinion with my brother Bramwell in the Court below that the facts do not support the allegation of a conversion,

1858.

GREAT WESTERN RAILWAY CO.

v.

CROUCH.

1858.

GREAT WESTERN RAILWAY Co.

v.

CROUCH.

and that the verdict upon "not guilty" to that count should be for the appellants.

CROMPTON, J.-I come to the same conclusion as my brother Wightman, that this judgment ought to be affirmed. I think we must look at the grounds of the rule only; because, under the statute which gives us jurisdiction, it is important that we should take care always to confine ourselves to the grounds stated in the rule. The statute has directed that the grounds shall be inserted in the rule, in order that when the case comes up to the Court of appeal, we should only decide on the matter of law which has been debated in the Court below. Now, the grounds stated in the rule are these." That the defendants having carried the parcel and tendered it at Plymouth to the plaintiff in due course, and the plaintiff having refused to pay the amount of the carriage, the defendants are not liable: and that there was no duty or obligation on the defendants to keep the parcel at Plymouth after the plaintiff's refusal to pay the carriage.” agree with what was said by my brother Channell in the Court below, that the question is as to the liability of the defendants, and on that question only the judgment depends. I think that we are entirely disembarrassed from any question as to whether the defendants are liable in the capacity of carriers. It was argued that the defendants were not liable qua carriers, but in a different character. If that objection had been taken at the trial, the declaration would have been immediately amended, because it would only have been necessary to state, by way of inducement, that after the parcel had been tendered by the defendants the plaintiff demanded it and offered to pay the charge, and then aver that whilst it remained in the defendants' hands they behaved with misconduct. Therefore I think that the majority of the Court below was perfectly right in treating

I