said contract, one of which conditions was [here state the condition exempting from liability, and allege that the loss or injury arose from a cause within the meaning of the exemption].

Ry. Co., 10 H. L. C. 472; 32 L. J. Q. B. 241; see Ashendon v. L. & B. Ry. Co., 5 Ex. D. 190; 42 L. T. 586, where a like condition as to dogs was held bad; see also Dickson v. G. N. Ry. Co., 18 Q. B. D. 176); that the owner of cattle sent by the railway must see to the efficiency of the waggon before he allows his stock to be placed therein, and complaint must be made in writing as to all defects before it leaves the station (Gregory v. Midland Ry. Co., 2 H. & C. 944; 33 L. J. Ex. 155); that the owners of live stock should undertake all risks of conveyance, loading and unloading, whatsoever, as the company would not be responsible for any injury or damage, howsoever caused, occurring to any live stock travelling upon their railway (M'Manus v. L. & Y. Ry. Co., 4 H. & N. 327; 28 L. J. Ex. 353); that, upon the carriage of cattle at the ordinary rates, the company should not be answerable for any danger arising from overcarriage, detention or delay in conveying or delivering, however caused (Allday v. G. W. Ry. Co., 5 B. & S. 903; 34 L. J. Q. B. 5); that horses were to be carried entirely at the owner's risk (M'Cance v. L. & N. W. Ry. Co., 7 H. & N. 477; 31 L. J. Ex. 65); that the company should not be liable for damage to cattle from any cause whatever, and that cattle should be carried entirely at the owner's risk (Gregory v. Midland Ry. Co., 2 H. & C. 944; 33 L. J. Ex. 155; see Rooth v. N. E. Ry. Co., L. R. 2 Ex. 173; 36 L. J. Ex. 83, where a similar condition was held bad, although the owner was allowed a free pass for a person to take care of the cattle). But in several of the last cited cases, one of the grounds of decision was that the conditions purported to be applicable in all cases, and that the railway company did not offer the consignor any reasonable alternative of sending the goods on any other terms. (See Peek v. North Staffordshire Ry. Co., Simons v. G. W. Ry. Co., Ashendon v. L. & B. Ry. Co., Dickson v. G. N. Ry. Co., supra.) Where the company have two rates of charge for the carriage of particular kinds of goods, one being the ordinary reasonable and lawful rate at which they carry such goods, subject to the ordinary responsibilities of carriers, and the other a lower rate at which they carry such goods only on the conditions of a special contract exempting them from all liability for loss or injury, and the consignor, knowing that he has the alternative at his option of having the goods carried at the ordinary rate and upon the ordinary terms as to the carrier's liability, sends them at the lower rate and subject to a special contract signed according to the statute and containing conditions such as those last mentioned, such conditions have, in many cases, been held to be just and reasonable, and to be binding on the consignor. (See Robinson v. G. W. Ry, Co., 35 L. J. C. P. 123; Lewis v. G. W. Ry. Co., 3 Q. B. 195; Manchester Ry. Co. v. Brown, 8 App. Cas. 703; G. W. Ry. Co. v. McCarthy, 12 App. Cas. 218.)

As to what is a sufficient reference to a special condition to embody it in a note signed by the consignor which does not itself contain the condition, see Peek v. N. S. Ry. Co., 10 H. L. C. 472; 32 L. J. Q. B. 241; and Lewis v. G. W. Ry. Co., 3 Q. B. D. 195.

Where a consignor or his agent for delivery signs a consignment note containing such conditions, he must be taken to have known its contents, although he signed it without reading them. (See Lewis v. G. W. Ry.

Co., 5 H. & N. 867; and "Bailments," ante, p. 114.) A condition which merely provides that horses, &c., are to be carried "at owner's risk does not apply to damage caused by delay in carrying. (Robinson v. G. W. Ry. Co., supra.) A condition exempting from liability for detention, &c., unless arising from wilful misconduct, did not protect the company from liability for their refusing to deliver the goods in consequence of a mistake of one of their clerks in not entering the goods carriage paid." (Gordon v. G. W. Ry. Co., 8 Q. B. D. 44; 51 L. J.

as

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Q. B. 58.)

Under the proviso in s. 7, limiting the damages for loss of or injury to animals to certain fixed sums, but permitting the company to demand a reasonable percentage for increased risk upon the excess of value declared beyond such sums, the company is not entitled to demand such percentage, unless the person sending the animals declares the higher value with the intention of paying it; the company is bound to carry at the ordinary rate of charge if the sender requires it, but will do so in such case without the increased risk, notwithstanding they may have notice of the higher value of the animals. (Robinson v. L. & S. W. Ry. Co., 19 C. B. N. S. 51; 34 L. J. C. P. 234.)

A declaration of value made in order to get the goods carried at a lower rate will bind the owner on the question of damages. (M'Cance v. L. & N. W. Ry. Co., 3 H. & C. 343; 34 L. J. Ex. 39.) In cases where the company are not protected by a special contract under s. 7, the proviso limiting the amount of damages recoverable in respect of animals, protects the company during the receiving of the animals, though the ticket has not then been taken and no complete contract has been entered into. (Hodgman v. West Midland Ry. Co., 5 B. & S. 173; 6 Ib. 560; 33 L. J. Q. B. 233; 35 Ib. 85.)

If some of the conditions contained in a special contract are unreasonable, the company may nevertheless rely on others of them which are reasonable. (M Cance v. L. & N. W. Ry. Co., supra.) But a condition which purported to exempt the company from all liability for loss in any case, and was therefore held unreasonable as extending even to a loss by gross negligence or wilful default (in a case where no alternative was offered by the company), was held not to be divisible, and to be no protection to the company, even assuming that the loss arose merely from accident, and without any negligence or default on their part. (Ashendon v. L. & B. Ry. Co., supra; see also Manchester Ry. Co. v. Brown, supra.)

The provisions of s. 7 do not extend to conditions relating to the carriage of goods or animals by one railway company over the line of another. (Zunz v. S. E. Ry. Co., L. R. 4 Q. B. 539; 38 L. J. Q. B. 209.)

The word "servants" in s. 7 means not merely servants properly so called, but also the agents (not strictly servants) employed by railway companies to do for them work which such companies are bound to perform under their contracts with the consignors. (Doolan v. Midland Ry. Co., 2 App. Cas. 792.)

In general, passengers' luggage received for carriage by a railway company is "goods" within s. 7, and any special contract or condition limiting the liability of the company in respect of the loss or injury of such luggage must be just and reasonable, and must be signed, as required by that section, in order to protect the company. (Cohen v. S. E. Ry. Co., 1 Ex. D. 217; 2 Ib. 253; 45 L. J. Ex. 298; 46 Ib. 417; Cutler v. N. L. Ry. Co., 19 Q. B. D. 64; 56 L. J. Q. B. 648.)

II. OF PASSENGERS BY LAND.

Denial that the Plaintiff was a Passenger.

The plaintiff did not become nor was he a passenger to be carried by the defendants for reward, or at all.

The like (R. S. C. 1883, App. D. Sect. V., No. 3).

The defendant did not receive the plaintiff as a passenger to be carried as alleged.

Denial of the alleged want of Care and Skill, and of the alleged

Injuries.

1. The defendants were not guilty of

in or about carrying the plaintiff.

2. The plaintiff was not injured or damaged as alleged, or at all.

The Act does not apply to the receiving of goods by railway companies at their stations for safe custody and re-delivery to the owners, and not for the purpose of carriage (Van Toll v. S. E. Ry. Co., 12 C. B. N. S. 75; 31 L. J. C. P. 241); and therefore in such cases an unsigned condition, if sufficiently brought to the notice of the owner, may exempt the company from responsibility for loss or damage (1b.; see “Bailments," ante, p. 114).

The provisions of this statute with respect to the requisites of special contracts only apply in cases of loss or injury occasioned by the neglect or default of the company or its servants, and not in cases of loss or injury arising purely from accident. (See Harrison v. L. & B. Ry. Co., 2 B. & S. 122; 31 L. J. Q. B. 113; Shaw v. G. W. Ry. Co., (1894) 1 Q. B. 373.)

Apart from any special contract or condition, it appears to be in general a defence to an action against a carrier for loss of or injury to goods, that the loss or injury was occasioned solely by the negligence and default of the plaintiff himself, without any default on the part of the defendants. (See Webb v. Page, 6 M. & G. 196; Martin v. G. N. Ry. Co., 16 C. B. 179; 24 L. J. C. P. 209; Pardington v. South Wales Ry. Co., 1 H. & N. 392.)

As to the carriage of goods by sea by railway companies, see "Shipping," ante, p. 337.

Defence of a Special Contract by which the Passenger agreed to relieve the Defendants from all Liability for Personal Injury (g).

The plaintiff became and was a passenger to be carried by the defendants by railway on the said journey upon the terms, amongst others, that the defendants should in no case be liable to him for any injury, loss or damage he might sustain through any negligence or breach of contract on their part.

Particulars:

[State same, e.g., The said terms were embodied in a written contract with the defendants, signed by the plaintiff.]

Defence to an Action for Loss of a Passenger's Luggage, that the Loss arose from the Conduct of the Plaintiff.

The alleged failure of the defendants to carry the said luggage, and the loss thereof, was not due to any default on the part of the defendants, but was caused by the conduct of the plaintiff in taking it out of the custody of the defendants at

-, during the said journey, and there leaving it on the platform [or, as the case may be].

Defence of Contributory Negligence to a Claim in respect of
Personal Injuries: see" Carriers," post, p. 860.

COMPANY (a).

(9) In the case of actions by passengers for personal injuries, a special contract entered into by the passenger relieving the company from liability may constitute a good defence, although it is not in writing or signed by the passenger (see Gallin v. L. & N W. Ry. Co., L. R. 10 Q. B. 212; 44 L. J. Q. B. 89; Hall v. N. E. Ry. Co., L. R. 10 Q. B. 437; 44 L. J. Q. B. 164); but with regard to passengers' luggage injured or lost by negligence it is otherwise, as s. 7 of the Railway and Canal Traffic Act, 1854 (cited "Carriers," ante, p. 670) is applicable to luggage (Cutler v. N. L. Ry. Co., 19 Q. B. D. 64; 56 L. J. Q. B. 468).

(a) Contracts required to be made in order to carry out the purposes for which trading companies are incorporated form one of the exceptions to the rule that a corporation can only contract by writing under its common seal. (See "Corporation," post, p. 688.)

With respect to the form in which contracts may be validly made on

behalf of companies formed under the Companies Act, 1862, s. 37 of the Companies Act, 1867, contains the following provisions, viz.:

"(1) Any contract which, if made between private persons, would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the company in writing under the common seal of the company, and such contract may be in the same manner varied or discharged.

(2) Any contract which, if made between private persons, would be by law required to be in writing and signed by the parties to be charged therewith, may be made on behalf of the company in writing, signed by any person acting under the express or implied authority of the company, and such contract may in the same manner be varied or discharged.

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(3) Any contract which, if made between private persons, would by law be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any person acting under the express or implied authority of the company, and such contract may in the same way be varied or discharged."

Sect. 97 of the Companies Clauses Consolidation Act, 1845, contains similar provisions with respect to the mode in which contracts may be made by directors or a committee of directors on behalf of any company to which that Act applies.

Similarly, the Companies Act, 1862, s. 47 (the provisions of which are not affected by the Bills of Exchange Act, 1882, see ss. 22 (1), 91 (2), 97 (3) of that Act), enacts that a promissory note or bill of exchange shall be deemed to have been made, accepted, or indorsed, on behalf of any company under this Act, if made, accepted, or indorsed in the name of the company by any person acting under the authority of the company, or if made, accepted, or indorsed by, or on behalf, or on account of the company, by any person acting under the authority of the company"; but this does not empower the directors of a company under that Act to bind the company by negotiable instruments, where the issuing of such instruments is not otherwise within the scope of its constitution, and such a power, if it exists, must be expressly or impliedly given by the memorandum or articles of association. (Peruvian Rys. Co. v. Thames Marine Ins. Co., L. R. 2 Ch. 617; 37 L. J. Ch. 864.)

Where a note or bill is made or accepted by the directors or agents of a company, it must appear on the face of the note or bill that such directors or agents signed only in that capacity and on behalf of the company, otherwise the company will not be bound by the note or bill, and the persons signing it may be personally liable. (See the Bills of Exchange Act, 1882, s. 26, ante, p. 641; and see Healey v. Storey, 3 Ex. 3; Gray v. Roper, L. R. 1 C. P. 694; Courtauld v. Sanders, 16 L. T. 562; Dutton v. Marsh, L. R. 6 Q. B. 361; 40 L. J, Q. B. 175; Alexander v. Sizer, L. R. 4 Ex. 102; 38 L. J. Ex. 59.) But in some cases where a director or agent of a company is charged as personally liable on a bill or note, it is a defence to an action by the drawer or payee that the note or bill was not delivered by the defendant or received by the plaintiff, except as a note or acceptance on behalf of the company, and that there was no intention on either side that the defendant should be personally liable. (See Price v. Taylor, 5 H. & N. 540; 29 L. J. Ex. 31; Courtauld v. Sanders, 16 L. T. 468; Wake v. Harrop, 5 H. & N. 768; 1 H. & C. 202; 30 L. J. Ex. 273; 31 Ib. 451.)

A railway company incorporated in the usual way has no power to