A common carrier by water is on the same footing as one on land, and does not insure against the irresistible

act of nature.

In Willoughby v. Horridge (a), the lessees of a ferry provided steamboats for the conveyance of passengers, goods, and cattle, and also slips for landing and embarking them, which were generally sufficient for that purpose. It was held, that they were liable for an injury to a passenger's horse in consequence of the side rail of the landing slip (of the dangerous state of which they had been forewarned) giving way, although the horse was at the time under the owner's control and management.

A steam ferry-boat continuing to cross and recross the Mersey during a dense fog takes upon herself the responsibility incident to such a course, and is not entitled to set up public convenience against the probability of loss of life and property, but she will be liable for any damage done to other vessels with which she may come into collision, provided those vessels take the precautions required by law to warn her of their position (b). A common carrier by water stands on the same footing as a common carrier by land (c).

The carrier does not insure against the irresistible act of nature, nor against defects in the thing carried itself, or both taken together; and if he can show that either the act of nature or the defect of the thing itself, or both taken together, formed the sole, direct, and irresistible cause of the loss, he is discharged (d).

In Walker v. Jackson, it was held, that a contract to carry and land a carriage and jewellery could not be implied from the mere character of the defendants as owners of the ferry, but that it was a question for the jury whether there was in fact such a contract (e). The plaintiff went on board defendants' steam ferry-boat with his horse and carriage, paying defendants' charge for a light four-wheeled phaeton. Jewellery and watches of great value were in a box under the seat, which defendants did not know. The carriage was taken safely across the river, but on landing fell into the river and the jewellery was injured. It was held, that the plaintiff's right of action was not affected by his not having communicated the fact that the jewellery was in the carriage that if a contract to land was established, it was a question for the jury whether the landing was complete under the circumstances; and also that to rebut usage to take and land carriages, a notice not visible to those who came in carriages, that defendants did not undertake to land carriages and would be responsible for no injury, was not admissible.

(a) 12 C. B. 742.

(b) The Lancashire, 2 Asp. 202.

(c) Rich v. Kneeland, Cro. Jac. 330; Hob. 17.

(d) Nugent v. Smith, 1 C. P. D. 423; see the judgments in this case, in which the law as to the liability of carriers was fully reviewed.

(e) 10 M. & W. 161.

8 & 9 Vict.

c. 20.

So a landowner, not the owner of the water or landing-places, To compenhas been held (f) entitled to compensation under 8 and 9 Vict. sation under c. 20, from a railway company for injuriously affecting his land by obstructing the access to a ferry over the river and appurtenant to the land in question, the ferry being an ancient ferry, which had always been attached to a house and premises, the occupier of which had always kept a ferry-boat. In this case it was held that a grant of the house and land with its profits and commodities" might pass the ferry, as there was evidence What will that they had never been separated-had they ever been separated, plaintiff could not have recovered in respect of injury to his land (g).

pass a ferry.

To an action on the case for disturbance of the plaintiff's ferry Neglect of duty will by the defendant plying a boat from and to the same places, not justify from and to which the plaintiff's ferry plies, it is no answer disturbance. to prove that plaintiff had neglected his ferry to the inconvenience of the public before the establishment of that of the defendant, or to show that 2d. had been of late demanded and taken by the plaintiff, whereas formerly only 1d. was taken (h). Anguish v. Ebden (i) was an action for toll brought by the Ferry tolls. owner of an ancient ferry, at the trial of which it transpired that the plaintiff had leased the tolls of the ferry for a term of years, but that the lease was not under seal. The counsel for the defendant submitted that the plaintiff should be nonsuited; but the learned judge was of opinion that tolls lying in grant and not in tenure, no interest in law passed by the agreement for letting the tolls because it was not under seal, and that the action was therefore maintainable. If the plaintiff had sued for an injury done to his interest as a reversioner in the ferry, he would have been defeated for want of proof of an existing valid lease. The plaintiff recovered.

Many corporations and religious bodies had by grant from the Crown freedom from paying tolls of ferries, i.e., passagium. The early charter and patent rolls contain many such exemptions, and (k) individuals or the inhabitants of a particular town

(f) Reg. v. Great Northern Railway Co. 14 Q. B. 25. See, too, Reg. v. Cambrian Railway, L. R. 6 Q. B. 422; 40 L. J. Q. B. 169; 25 L. T. 84, where a ferry was held to be "lands within section 3 of The Lands Clauses Act,

(h)Peter v. Kendal, 6 B. & C. 703; 30 R. R. 504; see Gunning on Tolls, p. 110. See also Anguish v. Ebden, Bury Summer Assizes, 1830, cor. Parke, J. (1) Bury Summer Assizes, 1830, cor. Parke, J. Cf. Duke of Somerset v. Fogwell, 5 B. & C. 875; 29 R. R. 449; R. v. North Duffield, 3 M. & S. 247 ; see Gunning, p. 111. As to tolls generally, see post, Chap. IX., pp. 563 et seq. (k) E.g., Charter Roll, 1 John, p. 2; grant of manor of Witham to the Knights Templars, quit of all tolls and pontage and passage. See ibid., p. 10, the like to Canons of Chichester. The exemption may also be by agreement, cf. Hammond v. Prentice Bros., Lim., [1920] 1 Ch. 201.

Definition

Repair at common law in early times part of the trinoda

necessitas.

Statutory

provisions. Magna Charta.

22 Hen. 8. c. 5.

may, by custom, have a right of passage over a ferry without paying toll; for such a custom may reasonably have had its origin in an agreement that the inhabitants of the town should be at the charge of procuring the grant, and that, in consideration of that, another should provide a boat and take toll at the ferry of all but the inhabitants, and that they should pass toll free. Such an agreement would be good at this day, and the interest of the owner of the ferry would be encumbered with the discharge of the inhabitants of the town from toll for passing over the ferry in his boat (1).

Bridges.

Wharton (m) defines a bridge to be " a building of brick, stone, wood, or iron across a river, ditch, valley, or other place for the convenience, ease, and benefit of travellers."

In early times the expense of repairing bridges was part of the trinoda necessitas, to which, in accordance with feudal laws, every man's estate was subject,-viz., expeditio contra hostem, arcium constructio, et pontium reparatio (n). According to Blackstone (0) the reparation of bridges included that of roads; and hence every parish is bound to keep the high roads passing through it, and, consequently, the bridges, in good and sufficient repair. But while the care of roads still devolves on parishes, that of bridges has passed for the most part to the counties at large in which they are situate (p).

By Magna Charta (q), it was provided that no community or individual shall be compelled to make bridges at river banks, except those who from of old were legally bound to do so;-and the liability of individuals or particular places to repair ratione tenure (r) was thus fixed, and the feudal burthen somewhat alleviated. The liability of the county at common law to repair was fully affirmed (s) by the passing of 22 Hen. 8. c. 5 (t),

(1) Payne v. Partridge, Carth. 191; 1 Show. 243, 255; 3 Mod. 289; 1 Salk. 12; Comb. 180; Holt, 6; see Gunning, p. 107.

(m) Wharton's Law Lexicon, 4th ed. p. 144.

(n) Stephen's Blackstone, vol. iii. 6th ed. p. 242; Bl. Com. 16th ed. vol. i.

p. 357.

(0) Bl. Com. vol. i. p. 357. As in the Roman Law: "ad instructiones reparationesque itinerum et pontium nullum genus hominum, nulliusque dignitatis ac venerationis meritis cessare oportet; c. 11, 74, 4.

(p) Stephen's Blackstone, 6th ed., vol. iii. p. 242; Viner's Abridgment, Bridges; and see Re Newport Bridge, 2 Ell. & Ell. 377.

(q) 9 Hen. 3. c. 15 (Ruff.). See McKechnie, Magna Charta, p. 352. (r) See Baker v. Greenhill, 3 Q. B. 148; Reg. v. Bedfordshire, 4 Ell. & Bl. 535; Stephen's Blackstone, vol. iii. p. 242; see post, p. 553, n. (t); Mag. Car. 9 Hen. 3. c. 15, applies only to the making and not to the repairing of bridges : Rex v. West Riding of Yorkshire, 5 Bur. 2594.

(s) 1 Bl. Com. p. 357, n. 15.

(t) An Act concerning the amendment of bridges in highways.

66

whereby "justices of peace were empowered to inquire of repairs of bridges and award process against offenders as the king's justices of his bench used commonly to do, or as it shall seem by their discretion to be necessary and convenient for the speedy amendment of such bridges" (section 1). By section 3, Sect. 3. in order to ascertain what persons shall be liable to the repair of bridges, it is enacted-1st, that if the said bridges are without city or town corporate, they shall be made by the inhabitants. "of the shire or riding within which the said bridge decayed shall happen to be "; 2nd, "If within any city or town corporate, then by the inhabitants of every such city or town corporate" (u); and 3rd, (u); and 3rd, "If part of any such bridges decayed happen to be one in one shire, riding, city or town corporate, and the other part thereof in another shire, riding, city, or town corporate, or if part be within the limits of any city or town corporate, and part without or part within one riding and part within another, that then, in every such case, the inhabitants of the shires, ridings, or towns corporate shall be charged and chargeable to amend, make, and repair such part and portion of such bridges so decayed as shall be and be within the limits of the shire, riding, city, or town corporate wherein they be inhabited. at the time of the same decays."

Section 9 makes provision for the repairing of highways at the 22 Hen. 8. end, making the liability for repair extend to "such part and c. 5, s. 7. portion of the highways in every part of this realm as well within franchise as without, as lie next adjoining to any ends of any bridges within this realm distant from any of the said ends by the space of 300 feet (x).

Of the numerous important statutes relating to bridges (y),

(u) The Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 119, confers on town councils the powers formerly exercised by the justices with respect to bridges repairable by boroughs under the Act of Hen. 8. Cf. Pratt & Mackenzie's Law of Highways, 873, n. (a).

(r) Cf. R. v. W. Riding, Yorkshire, 2 East, 342; 6 R. R. 439; R. v. Inhabitants of the County of Kent, 2 M. & S. 513; 15 R. R. 330; Rex v. West Riding of Yorkshire, 7 East, 588; 8 R. R. 688; Bl. Com. vol. i. p. 357, note 15. See also post, p. 553.

(y) The following Acts passed before 1835 are in force.

1 Ann. st. 1, c. 12 (in Ruff. c. 18).

An Act to explain and alter the Act made in the 22 Hen. 8. concerning repairing and amending of bridges in the highways, and for repealing an Act made in 23 Q. Eliz. for the re-edifying of Cardiff Bridge in the county of Glamorgan, and also for changing the day of election of the wardens and assistants of Rochester Bridge.

Section 1 recites 22 Hen. 8. c. 5, and states that the mode of collecting and taking money for the repair of bridges established thereby (viz., through Constable or two honest inhabitants) had been found very troublesome, burdensome and chargeable to the several counties, cities, towns corporate, ridings and divisions.

Section 2 therefore proceeds to enact, that the justices at general or quarter sessions may assess towns for repair and maintenance of bridges, but

5 & 6 Will. 4.

c. 50, s. 21.

The Highways Act, 1835 (5 & 6 Will. 4. c. 50), requires to be noticed. By section 21 it is enacted, "That if any bridge shall hereafter be built, which bridge shall be liable by law to be

that such assessments are to be levied by the constable of each parish, township, hamlet, or vill in such manner as the said justices may direct, and are then to be paid to the high constables of hundreds, who are in their turn to pay the same to such person and persons as the said justices by their order at sessions shall appoint to be treasurers and receivers of the same. The assessments are to be levied by distress and the sale of goods of every person so assessed not paying the same within ten days after demand, rendering the overplus of the value of the goods so distrained to the owner or owners thereof, the necessary charges of making and selling such distress being first deducted.

By section 3, high constables, churchwardens, &c., neglecting to assess, &c., are subject to a penalty of 40s., and every treasurer, unduly paying money, to a penalty of £5.

Fines, &c., are to be returned into the Exchequer, paid to treasurers appointed by quarter sessions, and applied in repair of bridges, &c. (section 4).

Section 5 provides that matters concerning such repairs are to be determined in the county where they lie, and not elsewhere; and that no presentment or indictment for not repairing such bridges or the highways at the ends of such bridges shall be removed by certiorari out of the said county into any other court. Section 6 regulates the allowance made to persons executing the Act, and section 7 permits parties in actions under the Act to plead the general issue. Section 8 provides that neither this Act nor anything therein contained, shall excuse or discharge any particular persons, estates or places from repairing any bridge which they have heretofore usually repaired. Sections 11 and 14 relate to Cardiff and Rochester bridges.

12 Geo. 2, c. 29.

"An Act for the more easy assessing, collecting and levying of County Rates (1739).

Section 14 empowers the justices of the peace at their general or quarter sessions to contract for the repair of bridges at a certain annual sum for any term not exceeding seven years.

The Bridges Act, 1740 (14 Geo. 2, c. 33).

Section 1 enables justices of the peace to purchase land not exceeding one acre for enlarging or rebuilding any county bridge.

The Bridges Act, 1803 (43 Geo. 3. c. 59).

This Act, called Lord Ellenborough's Act, was passed in consequence of the decision of the Court of Queen's Bench in Rex v. West Riding, Yorkshire (2 East, 342; 6 R. R. 439).

Section 1 empowers surveyors of county bridges to get materials for the repair of bridges in the same manner as surveyors of turnpike roads, and to remove obstructions and annoyances therefrom in the same manner as surveyors are entitled to do under 13 Geo. 3. c. 78.

By section 2, the justices at quarter sessions may make orders for the widening and altering the situation of county bridges, and may purchase land for such purposes.

By section 3, it is enacted that the right and property of all tools, implements, timber, bricks, stones, gravel, and other materials purchased, gotten, or had or to be purchased, gotten, or had, by the order of the justices in counties, or the surveyor of county bridges, shall be vested in the said surveyor.

The inhabitants of counties shall and may, by section 4, sue for damages done to bridges, &c., in the name of their surveyor, and shall and may be sued in his name; provided always that every such surveyor in whose name any action or suit shall be commenced, prosecuted, or defended in pursuance of this Act shall always be reimbursed and paid out of the moneys in the hands of the treasurer of the public stock of such county respectively all such costs and charges as he shall be put unto or become chargeable with by reason of his being so made plaintiff or defendant therein, and also all the costs and charges of prosecuting any indictment or indictments, or other proceedings against any person or persons whomsoever.

Section 5 describes the bridges which inhabitants of counties shall be liable to repair and maintain, it being provided that such bridge must be erected