by the Carriers Act, 11 G. 4&1 W. 4, c. 68. Protection afforded silks) above the value of 10%., unless at the time of the delivery thereof at the office, warehouse, or receiving-house of such carrier, or to his servant, for the purpose of being carried, the value and nature of such property shall have been declared, and such increased charge as thereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such property. By the first section, therefore, thus briefly abstracted, the exemption of the carrier from liability is absolute and complete, unless the preliminary thereby made indispensable is complied with by the owner of the goods. The increased charge' is, by the 2nd section, declared to be what the carrier is entitled to receive over and above the ordinary rate of carriage for the conveyance of the species of property before enumerated, when above 10%.; such increased rate of charge to be notified by some notice to be affixed in some conspicuous part of the office, warehouse, or receiving-house, where goods are received for carriage. By sect. 4 it is provided, that no public notice or declaration shall exempt any carrier from his liability at common law, for the loss of or injury to any articles other than those in the 1st section enumerated; but that, as to such other articles, his liability, as at common law, shall remain, notwithstanding such notice. From which exception, as to the liability of the carrier in respect of goods not enumerated, it seems impliedly to follow, that, as to those which are, protection is afforded to him in the manner above set forth. By sect. 8 it is enacted, that nothing in this act shall be deemed to protect such carrier from the felonious acts of any servant in his employ, nor to protect such servant from liability for any loss or injury by his own personal neglect or misconduct. The former branch of the clause is, to say no more, at least consistent with the supposition that for conduct short of felony the carrier is no longer liable; whereas it is obvious, that, before the passing of the act, the carrier would have been liable for acts of the servant not amount Protection afforded by the Carriers Act, c. 68. ing or approaching to felony-negligence. The latter branch seems to have been introduced ex abundanti cautelâ merely, 116.4 & 1 W.4, seeing that there is nothing in any part of the act to vary the liability of the servant to the master, for any misconduct of the former. Upon the whole, the language of the first section seems to us to be perfectly clear and unambiguous, without exception or restriction, and that none can fairly be implied from any other part of the act. By holding the carrier exempt from liability as to the enumerated articles, unless the owner shall declare their nature, and pay for them in the manner prescribed, we not only further the object avowed in the title and preamble of the act, but give it the effect of removing doubts and difficulties which (as we have seen) it is admitted did exist, as to the liability of a carrier for the loss of goods, who has sought to limit that liability by the publication of a notice in the usual form. It remains only to advert to the case of Owen v. Burnett (2 C. & M. 353), upon which much reliance was placed in the course of the argument, not for the sake of the decision, but the language of two of the learned judges, who are supposed to have intimated an opinion, that, although the article damaged was amongst those enumerated in the act, the carrier would still have been liable for the damage, if guilty of gross negligence.' Vaughan, B., in giving judgment for the defendant, is reported to have said, "if gross negligence were made out it would be different.' Bayley, B., the other judge referred to, does not in terms soexpress himself, nor is what he says necessarily equivalent; and we have before taken occasion to observe upon the manner in which in this same case he speaks of gross negligence.' But supposing it to be so, the observation is wholly extra-judicial, and unnecessary for the decision of the case. That decision is in favour of these defendants. For it was expressly found by the jury that the loss was occasioned by the negligence of the carrier alone, and yet the judgment was in his favour. Moreover, in the Same case, the Court shewed a disinclination to limit the operation of the statute; for, whereas in the preamble, mention is made of valuable packages in 'small compass,' and thence an argument was urged that to such only would the act be applicable, the Court held the contrary, and that it did apply to a package which is stated in the case to have been of a considerable size.' In no other case has the question now before us been even noticed. We are therefore unfettered by any authority in putting that construction upon the statute which we think it requires; and our judgment must be for the defendants." It must, however, be remarked that if a carrier is guilty of malfeasance, as distinguished from gross negligence,— conduct whereby (in the language of Bayley, J., in Garnett v. Willan (y) "he divests himself wilfully of the charge of the parcel entrusted to his care," and thereby divests himself of the character of a carrier, he is liable for the loss or damage of the goods, although the value may not have been declared under the provision of sect. 1 of the Carriers Act. Cases of considerable nicety may probably arise in the application of the exception now suggested, but nothing which fell from the Court in Hinton v. Dibbin tends to shew that carriers are not liable in such cases. IV. With respect to the duties of carriers of goods, it is laid down, that it is the duty of a common carrier to receive and carry all goods offered for carriage. This is the result of his public employment as a carrier; and, according to the custom of the realm, if he will not carry goods for a reasonable compensation, he will be liable to an action, unless there is a reasonable ground for the refusal. If a carrier refuses to take charge of goods, because his coach is full (z), (y) 5 B. & Ad. 57. (z) Lovett v. Hobbs, 2 Shower, 128. In Ex parte Robins, 7 Dow, 566, a mandamus was refused to compel a railway company to carry the goods of a particular carrier, on the ground, that the general law of the land might be enforced. or because the goods are of a nature, which will at the time expose them to extraordinary danger (a), or to a popular rage (6), or because the goods are not of a sort which he is accustomed to carry, or because he has no convenient means of carrying such goods with security (c), or because they are brought at an unseasonable time (d); these will furnish reasonable grounds for his refusal, and will, if true, be a sufficient legal defence to a suit for the non-carriage of the goods (e). Another duty of carriers is, to take the utmost care of goods from the moment of receiving them; to obey the directions of the owner in respect to them; to carry them safely to the proper place of destination; and to make a right delivery of them there, according to the usage of trade, or the course of business (ƒ). A question frequently arises in practice, whether carriers, who have received a parcel to be taken to a point beyond that to which their own means of conveyance extend, are liable as carriers for losses beyond that point, or are to be considered as agents for the purpose of carrying to the end of their tract, and employing fresh agents at its termination to complete the journey? The question seems (a) By 8 Vict. c. 20, s. 105, post, App., 185, railway companies cannot be required to carry upon the railway any aquafortis, oil of vitriol, gunpowder, lucifer-matches, or any other goods which in the judgment of the company may be of a dangerous nature; and parties sending such goods without giving notice to the company are liable to be fined. The company may also refuse to take any parcel that they may suspect, or require it to be opened. (b) Edwards v. Sherratt, 1 East, 604. (c) In Bac. Abr., tit. Carrier (B), it is said, "If a common carrier, who is offered his hire, and who hath convenience, refuses to carry goods, he is liable to an action," &c. See also Jackson v. Rogers, 2 Shower, 327; and judgment of Holroyd, J., in Batson v. Donovan, 4 B. & Ald. 32. (d) Lane v. Cotton, 1 Lord Raym. (e) Story on Bailments, 328. The Rights and Liabilities of the Company as Carriers of Goods. The Rights and Liabilities of the to be for the jury; but the inclination of the Courts is to Company as Car- look on them as carriers throughout (g). riers of Goods. Another point of great practical importance is, at what time the carrier is bound to make a delivery of the goods? The general answer is, that he is bound to deliver the goods within a reasonable time (h); and that reasonable time must depend upon the circumstances of each particular case. If the party sending the goods stipulate that the carrier shall forward them the same evening, a special contract is created, and the carrier may be sued for damages for a breach of it (¿). As to the general rights of carriers, it is to be observed, that, in virtue of the delivery of the goods, they acquire a special property in them, and may maintain an action against (g) Smith's Mercantile Law, 264; Muschamp v. Lancaster and Preston Railway Company, 8 M. & W. 421. In this case, Rolfe, B., says, "I think the construction we are putting on the agreement is not only consistent with law, but is the only one consistent with common sense and the convenience of mankind. What I told the jury was only this, that if a party brings a parcel to a railway station-which, in this respect, is just the same as a coach-office, knowing at the time that the company only carry to a particular place, and if the railway company receive and book it to another place, to which it is directed, primâ facie, they undertake to carry it to that other place. That was my view at the trial, and nothing has occurred to alter my opinion. As to the case which has been put, of a passenger injured on the line of railway beyond that where he was originally booked, I suppose it is put as a reductio ad absurdum; but I do not see the absurdity If I book my place at Euston Square, and pay to be carried to York, and am injured by the (h) Raphael v. Pickford, 5 Man. & G. 551; 2 Dowl., N. S., 916. (i) See Pickford v. The Grand Junction Railway Company, 12 M. & W. 766, where the defendants were sued for not forwarding certain crates of pork on the evening of their deli very. |