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conveyance (the owner not paying the defendant anything for the warehouse-room), and were consumed by an accidental fire there, it was held, that the defendant was not liable (u). In Cairns v. Robins, 8 M. & W. 258, Lord Abinger, C. B., said, "A distinction has been properly drawn between the duties of a carrier and of a warehouseman. But the party may have so large a compensation as a carrier, as to be sufficient also to remunerate him for acting as a warehouseman, as is the case with many of the canal companies; and it is quite consistent with both these characters, that he will for a certain time, until further orders, or for a reasonable time, keep the goods, considering the general remuneration for carrying sufficient to cover this risk also” (x).

If a person brings a parcel to a railway station (which in this respect is just the same as a coach-office), although he knows at the time that the railway company only carry to a particular place, yet if the company receive and book it to another place to which it is directed, primâ facie they undertake to carry it to that place. A parcel was delivered at Lancaster, to the Lancaster and Preston Railway Company, directed to a person at Bartlow, in Derbyshire; and the person who brought it to the station offered to pay the carriage, but the bookkeeper said it had better be paid by the person to whom it was directed, on the receipt of it. The company were known to be proprietors of the line only as far as Preston, where the railway unites with the North Union, and that afterwards with another, and so on into Derbyshire. The parcel having been lost after it was forwarded from Preston, it was held, that the Lancaster and Preston Railway Company were liable for its loss (y). And if the sender of the goods countermand the directions originally given, and the goods are lost by reason of the railway company's non-compliance with the countermand, they are liable for such loss (2).

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If a common carrier be robbed of his goods, he shall answer the value of them for having his hire, there is an implied undertaking for the safe custody and delivery (a). Where a person undertakes to carry goods safely and securely, he will be responsible for the damage they sustain in the carriage through his neglect, though he is not a common carrier, nor has any reward for his labour (b); and this rule holds, although the plaintiff, for greater caution, sends his servant with the goods, who pays a person for guarding them, be

(u) Garside v. Trent and Mersey Navigation, 4 T. R. 581; and see Bourne v. Galliffe, supra.

(x) See also Giles v. Taff Vale Railway, 2 E. & B. 822.

(y) Muschamp v. The Lancaster and Preston Junction Railway, 8 M. & W. 421; and see Collins v. The Bristol and Exeter Railway, 26 L. J., Exch. 103; and Wilby v. The West Cornwall Railway, 27 L. J.,

Exch. 181.

(z) Scotthorne v. South Staffordshire Railway, 8 Exch. 341; S. C. 22 L. J., Exch. 191.

(a) 1 Inst. 89, a; Woodliefe v. Curties, 1 Roll. Ab. 2, (C) pl. 4; S. P. Covington v. Willan, Gow's N. P. C. 115.

(b) Coggs v. Bernard, Lord Raym. 909; S. C. Smith's Lead. Cas. 147.

cause he apprehends danger of their being stolen (c). "There is nothing more common than for persons to put part of their luggage into the same railway carriage with them; and that may be done under such circumstances as never to cast any responsibility on the carriers but that is to be proved. When this is done by the company's servants, the company are not relieved from their liability as carriers in respect of it. So a passenger taking a valuable article openly and notoriously into the same carriage in which he travels, will not save the company from responsibility" (d). A railway company are bound, on the arrival of a train at the terminus of the journey, to deliver a passenger's luggage into a carriage to be conveyed from their station, if required so to do, and if such is their usual practice (e). A stage coachman has been held responsible for the loss of a parcel which he had received to carrry without reward, it appearing to have been lost through gross negligence on his part (f). In a special action on the case, wherein the plaintiff declared that whereas the defendant had undertaken to carry a hare for the plaintiff from A. to B., yet the defendant carried the same so negligently, that he lost it by the way, on demurrer, it was objected by Hawkins, Serjeant, that the plaintiff had not declared, on the general custom of the realm relating to carriers, and, therefore, the defendant must be taken to be a private person; if so, there was not any consideration laid, and consequently the promise was merely nudum pactum. 2ndly. The plaintiff had not set forth a delivery of the hare, upon which the promise was made, and for the breach of which promise the action was brought. Probyn and Reynolds, (the only judges in court,) as to the first objection, admitted that the defendant must be taken to be a private person; but it was determined in Coggs v. Bernard, that a private person was answerable, if he undertook the carriage of goods, for a misfeasance, though there was not any consideration: and the only difference was, that a common carrier was obliged to undertake the carriage of goods, and a private person was not; but if a private person voluntarily undertook it, he was by law answerable for damage arising from his negligence. As to the second objection, the court said, that the delivery was implied; for it was stated, that the defendant had carried the hare part of the way, which he could not have done without a delivery; and as for the breach of promise, the action was not brought for that, but for the loss of the hare; the promise was only inducement. Accordingly they gave judgment for the plaintiff. Hutton v. Osborne, B. R. M. 3 Geo. II. MS.

(c) Robinson v. Dunmore, 2 B. & P. 416. (d) Per Wilde, C. J., in Richards v. London and South Coast Railway, 18 L. J., C. P. 254; S. C. 7 C. B. $39.

(e) Butcher v. London and South Western Railway, 16 C. B. 13; S. C. 24 L. J., C. P. 137.

(f) Beauchamp v. Powley, 1 M. & Rob. 38; Ross v. Hill, 2 C. B. 877; S. C. 15 L. J., C. P. 182; Powles v. Hilder, 25 L. J., Q. B. 331, in which latter case it was decided that the owner of a hack cab was liable for a loss occasioned by the driver.

A common carrier of passengers is bound to carry them (g), and to provide for their safety and conveyance so far as human care and foresight can go (h). An action therefore has been held to lie against a railway company for refusing to convey a passenger by a train advertised in their time tables (i).

Coach-owners are not liable for injuries which passengers may sustain from inevitable accidents, as from the oversetting of the coach from the horses taking fright, there not being any negligence in the driver; but otherwise it is if there be negligence in the driver (k). A coach-owner is bound to convey his passengers in road-worthy vehicles, and if an accident happen from a defect in construction, the owner is liable, although the defect be out of sight and not discoverable upon ordinary examination (1). See the duty of coach-owners fully explained by Best, C. J., in Crofts v. Waterhouse, 3 Bingh. 321. The proprietors of a mail-coach are answerable for an injury sustained by a passenger, through the misconduct of their driver (m). A., a stable-keeper, let to B. four horses to draw B.'s carriage from C. to D. The horses were ridden by A.'s servants. Through their negligence, the carriage of I. S. sustained an injury. It was held, that I. S. might maintain an action against A. (n).

It is a prima facie case of negligence in a railway company, at the time the accident occurred, the train and railway were exclusively in their management (o). But this primâ facie case may be rebutted by showing that the accident was occasioned by the wilful act of a stranger (p). "Though there may have been negligence on the part of the plaintiff, yet, unless he might by the exercise of ordinary care have avoided the consequences of the defendant's negligence, he is entitled to recover: if by ordinary care he could have avoided them, he is the author of his own wrong" (q). But in order to sustain an action for damages arising from such negligence, the plaintiff must not have been in the railway carriage under such circumstances as to have been a trespasser (r. If the injury might have been avoided by the reasonable skill of those

(g) Denton v. Great Northern Railway, 5 E. & B. 860; S. C. 25 L. J., Q. B. 135. (h) Per Mansfield, C. J., in Christie v. Griggs, 2 Campb. 79.

(i) Denton v. Great Northern Railway, spra; and see Bennett v. Peninsular and Oriental Company, 6 C. B. 775. As to the damages recoverable in such action, see Hamlin v. Great Northern Railway, 1 H. & N. 408; S. C. 26 L. J., Exch. 20, post. (k) Aston v. Heaven, 2 Esp. N. P. C.

533.

(1) Sharp v. Grey, 9 Bingh. 457; 2 M. & Sc. 620.

(m) White v. Boulton, Peake's N. P. C. 81.

(n) Sammell v. Wright, 5 Esp. N. P. C.

268. See Quarman v. Burnett, 6 M. & W. 499; post, tit. "Master and Ser

vant."

(0) Carpue v. The London and Brighton Railway, 5 Q. B. 747; Skinner v. South Coast Railway, 5 Exch. 787.

(p) Patch v. The Rumner Railway, 27 L. J., Exch. 155.

(q) Per Parke, B., in Bridge v. The Grand Junction Railway, 3 M. & W. 248. See also Greenland v. Chaplin, 5 Exch. 243, and Martin v. Great Northern Railway, 16 C. B. 179.

(r) See Great Northern Railway v. Harrison (in error), 10 Exch. 376; S. C. 23 L. J., Exch. 308; and Lygo v. Newbold, 9 Exch. 302.

who had the management of the conveyance in which the plaintiff was a passenger, he has no remedy against the owner of the other conveyance through whose negligence the accident was caused (s), although if the accident was in part only occasioned by want of care on the part of the conductor of the conveyance in which the plaintiff was, that would not be a defence to such an action (t).

II. Of the Stat. 11 Geo. IV. & 1 Will. IV. c. 68, limiting the Responsibility of Carriers by Land, as to the Loss of Parcels of a certain Description. Stat. 7 Geo. II. c. 15; 53 Geo. III. c. 159.

On the 23rd of July, 1830, an act was passed (11 Geo. IV. & 1 Will. IV. c. 68), by which the liability of carriers by land for hire, for the loss of or injury to parcels of a certain description, has been much altered. It is intituled " An Act for the more effectual Protection of Mail Contractors, Stage Coach Proprietors, and other common Carriers for Hire, against the Loss or Injury to Parcels or Packages delivered to them for Conveyance or Custody, the Value and Contents of which shall not be declared to them by the Owners thereof." Such is the title of the act, and then the preamble recites, "That by reason of the frequent practice of bankers and others sending by the public mails, stage-coaches, waggons, vans, and other public conveyances by land, for hire, parcels and packages containing money, bills, notes, jewellery, and other articles of great value in a small compass, much valuable property is rendered liable to depredation, and the responsibility of mail contractors, stage-coach proprietors, and common carriers for hire, is greatly increased; and through the frequent omission by persons sending such parcels and packages to notify the value and nature of the contents thereof, so as to enable such mail contractors, &c., by due diligence to protect themselves against losses arising from their legal responsibility, and the difficulty of fixing parties with knowledge of notices published by such mail contractors, &c. with the intent to limit such responsibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses;" it is then enacted, "that no mail contractor, stage-coach proprietor, or other common carrier by land, for hire, shall be liable for the loss of, or injury to, any article of property of the descriptions following; (that is to say), gold or silver coin of this realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or timepieces of any description, trinkets, bills, notes of the governor and company of the Banks of England, Scotland, and Ireland respectively, or of any other bank in Great Britain or

(s) Thoroford v. Bryan, 8 C. B. 115; S. C. 18 L. J., C. P. 336.

(t) Rigby v. Hewett, 5 Exch. 240; 19 L. J., Exch. 291.

Ireland, orders, notes, or securities for payment of money, English or foreign, stamps, maps, writings, title-deeds, paintings, engravings, pictures, gold or silver plate, or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials (u), furs (x) or lace, or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire, or to accompany the person of any passenger in any mail or stagecoach, or other public conveyance, when the value of such property aforesaid contained in such parcel or package shall exceed the sum of ten pounds, unless at the time of the delivery thereof at the office, warehouse, or receiving-house of such mail-contractor, &c., or to their book-keeper, coachman, or other servant, for the purpose of being carried, or of accompanying the person of any passenger as aforesaid, the value and nature of such property shall have been declared by the persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package" (y). By the second section, common carriers, upon delivery of such parcels exceeding the value of ten pounds, and so declared as aforesaid, may demand an increased rate of charge, which is to be notified by a notice in legible characters affixed in the office; and persons sending parcels are to be bound by such notice, without further proof of the same having come to their knowledge. The third section directs that carriers shall, if required, give a receipt for the parcel, acknowledging the same to have been insured, which receipt shall not be liable to any stamp duty; and carriers who do not give such receipt, when required, or affix the proper notice, "shall not be entitled to any benefit or advantage under the act, but shall be liable as at the common law, and shall also be liable to refund the increased rate of charge" (z). By the fourth section, carriers cannot by a public notice or declaration limit their liability at common law to answer for the loss of any articles in respect whereof they are not entitled to the benefit of this act. By the fifth section, every office of such common carrier shall be deemed a receiving-house (a), and any one proprietor shall be liable to be sued, and no action shall abate for want of joining any co-proprietor. Special contracts are not affected by this act (b). Parties entitled to damages for parcels lost or damaged may recover the extra charges for insurance (c). This act does not protect any such common carrier from liability to answer for loss or injury arising from the felonious act of any servant in their employ, nor does it protect any such servant from liability for any loss or in(u) Darcy v. Mason, 1 Car. & M. 45. (x) Mayhew v. Nelson, 6 C. & P. 58. (y) For a plea setting up by way of defence the non-declaration of the nature and value of the goods, see Pianciani v. South Western Railway, 18 C. B. 226.

(z) See Hart v. Baxendale, 7 Exch. 769.

(a) Syms v. Chaplin, 5 A. & E. 634; 1 Nev. & P. 129.

(b) Sect. 6.
(c) Sect. 7.

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