Watson and Arney then objected that the award, on its face, was uncertain; and also that the affidavits did not state that Masters had himself paid the arbitrators the costs which were to be reimbursed to him by Baker.

Sir F. Thesiger, and Barstow, contrà, contended that the award was sufficiently certain, and also that the payment by Masters sufficiently appeared from the affidavits.

The Court (Lord DENMAN, C. J., PATTESON, COLERIDGE, and WIGHTMAN, Js.) held the objection, that the payment by Masters was not stated, to be valid; and the rule was made absolute, that a writ of attachment should issue against Butler only, for not paying the costs of the actions; but that the rule should lie in the *office for a fortnight; and that the residue of the rule should be discharged.

[*344

Barstow, in Trinity term, 1848, obtained a second rule for an attachment, on affidavits showing all necessary formalities as on the first rule, and also the payment by Masters to the arbitrators. It appeared that, when the former rule for an attachment was obtained, Masters had not actually paid the arbitrators, but they had taken his promissory note for the amount. In Michaelmas term 1848,(a)

Watson and Arney showed cause, on the ground that the present rule was the renewal of an application which had been disposed of on the former rule; that the subsequent payment by Masters did not make the present a new case, because his promissory note had been taken in payment, and the argument in support of the former rule had been that the payment sufficiently appeared from the materials then before the Court. They cited Regina v. The Manchester and Leeds Railway Company, 8 A. & E. 413 (E. C. L. R. vol. 35), Rex v. Orde, 8 A. & E. 420, note (a) (E. C. L. R. vol. 35), Regina v. Barton, 9 Q. B. 982, note (b) (E. C. L. R. vol. 58), Regina v. The Great Western Railway Company, 5 Q. B. 597 (E. C. L. R. vol. 48), Regina v. Pickles, 3 Q. B. 599, note (a) (E. C. L. R. vol. 43), Rosset v. Hartley, 7 A. & E. 522 (E. C. L. R. vol. 34),(6) Bodfield v. Padmore, 5 A. & E. 785, note (a) (E. C. L. R. vol. 31), Saunderson v. Westley, 8 Dowl. P. C. 652, Regina v. Harland, 8 Dowl. P. C. 323, Ex parte *Hasleham, 1 Dowl. P. C. [*345 (N. S.) 792, Levi v. Coyle, 2 Dowl. P. C. (N. S.) 932, Dodgson v. Scott, 2 Exch. 457,† Ex parte Thompson, 6 Q. B. 721 (E. C. L. R. vol. 60), Stulz v. Wyatt, 6 Q. B. 666 (E. C. L. R. vol. 60).

Sir F. Thesiger, contrà.-The defect in the affidavits on the former rule could not have been then supplied; for an essential fact, the payment by Masters, did not exist. The present is a new case; and a fresh contempt has been committed. In Dixon v. Oliphant, 15 M. & W. 152,† a second rule for an attachment was made absolute, after a former motion nad failed on the ground of the defective service of a power of attorney.

(a) November 22d. Before Lord DENMAN, C. J., Coleridge, WIGHTMAN, and ERLE, JS. (b) See Peterson v. Davis, 6 Com. B. 235 (E. C. L. R. vol. 60).

VOL. XIII.-27

$2

It is true that leave was given to make the second application; but the Court, referring to Levi v. Coyle and Ex parte Hasleham, observed that in those cases the same questions were brought before the Court on amended materials; but here there has been a fresh demand of the costs, and a fresh contempt, after a proper service of the power of attorney has been effected. The defendant proceeds upon new matter, and does not bring into question the former decision of the Court." [Lord DENMAN, C. J.-There is no rule in this respect binding upon the Court in all cases.] Cur. adv. vult.

Lord DENMAN, C. J., in this vacation (February 24th), delivered the judgment of the Court

This motion for an attachment for a contempt of Court in neglecting to pay the costs of a reference and award was resisted on a preliminary ground. A similar motion was made some time ago and refused; and the Court has often said that they will not permit the renewal *346] of an application to their discretion which they have refused under the same circumstances and for the same object. This rule of practice, which has been laid down for the protection of parties against vexation, and to prevent the waste of public time, is by no means a privilege of the party, especially an offending party, and does not apply in the present case, because the circumstances were altered, no demand (a) of the money having been made before the first application, but such a demand having been made in the mean time.

On this ground of distinction, and the peculiar circumstances of this case, which displayed an unusual degree of contumacy and hardship, we think the rule must be absolute. Rule absolute.(b)

(a) See p. 342, antè. The word "demand" seems to have been written, by mistake, instead of "payment."

(b) Reported by H. Davison, Esq.

See Regina v. The Deptford Pier Company, 8 A. & E. 910, 917 (E. C. L. R. vol. 35). Regina v. East Lancashire Railway Company, 9 Q. B. 980 (E. C. L. R. vol. 58).

As to motion in Court on new materials, after failure at Chambers, see Peterson v. Davis, 6 Com. B. 235 (E. C. L. R. vol. 60).

*347]

*SHAW v. The YORK and NORTH MIDLAND Railway Company.

Case. The declaration alleged that defendants were proprietors of a railway and of carriage s for the conveyance of passengers, cattle, goods, &c., for reward; that plaintiff delivered to them, and they received from him, a horse of plaintiff to be "safely and securely" carried by them upon their carriages, and to be safely and securely delivered to plaintiff, at a place mentioned, for reward. That thereupon it was their duty "safely and securely" to convey and deliver the horse as aforesaid; yet that defendants did not use due care about its conveyance, but so negligently conducted themselves therein, that, by reason of the defective state of the carriage in which the horse was conveyed, it was killed. Plea, denying that the horse was delivered and received "to be safely and securely" carried as alleged. Issue thereon. It appeared at the trial that the plaintiff had pointed out a defect in one of the partitions of a horse-box shown to him for the reception of his horse; that a servant of the defendants then, endeavoured to secure the partition, and assured the plaintiff that he had done so; that the

horse was carried in that box; and that the horse's death was occasioned during the journey by the insecurity of the partition. A receipt was given to plaintiff for the amount paid for conveyance of the horse, at the foot of which receipt was written: N. B. This ticket is issued subject to the owner's undertaking all risks of conveyance whatsoever, as the Company will not be responsible for any injury or damage (however caused) occurring to horses or carriages, while travelling, or in loading or unloading." Held:

That the terms of the memorandum formed part of the contract for the conveyance of the horse, and that they disproved the averment in the declaration that the defendants received the horse" to be safely and securely" carried.

Quare, whether, notwithstanding the terms of the memorandum, the plaintiff might not have alleged that it was the duty of the defendants to provide a sufficient carriage, and have charged them with the damage arising from a breach of that duty.

CASE. The declaration stated that the defendants were proprietors of a certain railway, to wit, The York and North Midland Railway, and of certain carriages used by them for the conveyance therein of passengers, cattle, goods, &c., in and upon the said railway, and other railways, for hire and reward; that the plaintiff, on, &c., at the request of the defendants, caused to be delivered to the defendants, and defendants then received from plaintiff, nine horses of the plaintiff to be safely and securely carried by defendants in and upon the carriages of defendants, and by the said railway and certain other railways, to wit, from York to Watford, &c., and to be safely and securely delivered *to the [*348 plaintiff at Watford aforesaid, for certain reasonable reward to defendants in that behalf. That it thereupon became and was the duty of defendants safely and securely to carry and convey and deliver the said horses of the plaintiff as aforesaid. Yet defendants, not regarding, &c., did not, nor would, use due and proper care in and about and for the carriage and conveyance as aforesaid of the plaintiff's said horses from York to Watford, but took so little and such bad care in this behalf, and so wrongfully, improperly, and negligently conducted themselves in and about the carrying and conveying of the said horses, that, by reason and in consequence of the insufficiency and defective state and condition of a carriage of the defendants wherein one of the said horses was then being carried and conveyed by defendants on the occasion aforesaid, the said horse, whilst being carried and conveyed therein by defendants, was killed.

Pleas 1. Not guilty. Issue thereon.

2. That defendants did not receive from plaintiff the said horses, or any of them, to be safely and securely carried by defendants in and upon the carriages of defendants, as in the declaration mentioned, to Watford, &c., to be safely and securely delivered to plaintiff at Watford aforesaid, modo et formâ, &c. Issue thereon.

3. That defendants received from plaintiff the said horses to be carried by defendants from York to Watford, subject to a certain contract between plaintiff and defendants that plaintiff should undertake all risks of conveyance of the said horses whatsoever, and that defendants should not be responsible for any injury or damage, however caused, occurring to the said horses while travelling on the said railway, or in loading or

*unloading the same; and that the said horse was killed, and the *349] said loss and damage to the plaintiff occurred, whilst the said horse was travelling in and upon and along the said railway: verification. Replication, traversing the contract as alleged in the plea. Issue thereon.

On the trial, before ALDERSON, B., at the Yorkshire Spring assizes, 1848, it appeared that the plaintiff, who was a horse dealer, had brought nine horses to The York and North Midland Railway station, to be conveyed by railway to Watford. Three horse-boxes were shown him, to one of which he objected on the ground that a partition separating one horse-standing from another insecure. One of the Company's servants endeavoured to remedy the defect, and assured the plaintiff that the partition had been secured; and the horses were placed in the boxes. The plaintiff then paid the fare for their conveyance; and a receipt was given him for money paid on account of "three horse-boxes ;" and at the foot of the receipt was the following memorandum: "N. B. This ticket is issued subject to the owner's undertaking all risks of conveyance whatsoever, as the Company will not be responsible for any injury or damage (however caused) occurring to horses or carriages, while travelling, or in loading or unloading." On the train arriving at Normanton, it was found that one of the horses had killed itself, and that the insecurity of the above-mentioned partition had led to its death. It was objected, for the defendants, that the memorandum constituted the contract, and that the effect of the memorandum was to protect the defendants from responsibility under the circumstances, and to entitle them to a verdict on the second and third issues. The learned Judge was of opinion that the special notice *did not exempt the de*350] fendants from the obligation to use ordinary care, and also, on the authority of Lyon v. Mells, 5 East, 428, that a contract in the terms of the memorandum was subject to an implied exception of injury arising from the insufficiency of the carriage provided by the defendants: and he directed a verdict for the plaintiff.

Knowles, in Easter term, 1848, obtained a rule nisi for a new trial,(a) on the ground of misdirection. In Hilary term last,(b)

Martin and Dearsley showed cause.-The contract proved was no variance from the contract alleged in the declaration. The contract to carry safely and securely" would have been implied without any express allegation; and that implied contract was not displaced by the special notice. The words "safely and securely" are to be understood with reference to the relative rights and duties of the parties, and im

(a) Knowles, on moving, expressed a doubt whether he had leave reserved to move to enter the verdict for the defendants on the second and third issues: and he therefore moved for a new trial, in case it should turn out that he had no such leave. It appeared that the counsel for the plaintiff had not consented that leave should be so reserved; and the rule was drawn up for a new trial.

(6) January 22d and 23d. Before Lord DENMAN, C. J., PATTESON, COLERIDGE, and WIGHTMAN, JS.

port no more than that the defendants were to use ordinary care; Ross v. Hill, 2 Com. B. 877 (E. C. L. R. vol. 52). The defendants were bound to use ordinary care notwithstanding their notice; Bodenham v. Bennett, 4 Price, 31, Birkett v. Willan, 2 B. & Ald. 356, Sleat v. Fagg, 5 B. & Ald. 342 (E. C. L. R. vol. 7), Wyld *v. Pickford, 8 M. & [*351 W. 443,†(a) Story on Bailments, p. 351, ch. 6, § 549. The unfitness of the carriage for the purpose for which it was offered was a breach of ordinary care for which the defendants are liable; Lyon v. Mells, 5 East, 428, Story on Bailments, p. 359, ch. 6, § 562. The effect of the two authorities last mentioned is also to show that the third plea did not itself state the contract truly. The operation of this notice was merely to protect the defendants from liability in consequence of unexpected accident or misfortune, such as fire and robbery, as in Latham v. Rutley, 2 B. & C. 20 (E. C. L. R. vol. 9).

Knowles, Joseph Addison, and Barstow, contrà.-First: There is a variance between the allegation in the count and the proof, which entitles the defendants to a verdict on the second issue. The count, in effect, charges the defendants as common carriers; Dale v. Hall, 1 Wils. 281: such a count is quasi ex contractu; Powell v. Laton, 2 New R. 365, Max v. Roberts, 2 New R. 454:(b) and, to support it, the plaintiff must prove a contract substantially that of a common carrier. But, in the present case, the evidence was that the defendants never were common carriers of horses at all. When they carried horses it always was under a special contract; the special contract under which the horses of the plaintiff were received was in writing and contained in the ticket, which at this stage of the proceedings must be taken to have been understood and read by the plaintiffs. Stat. 11 G. 4 & 1 W. 4, c. 68, s. 4, prevents common carriers from *affecting their liability by public [*352 "notice or declaration;" that means by any public notice which it might be presumed all persons would read: but where a carrier delivers to a particular customer a notice of the terms on which he will carry, and the customer assents to deliver the goods on these terms, it is a special contract; Palmer v. Grand Junction Railway Company, 4 M. & W. 749:† and such a special contract is not affected by section 4, and is expressly protected by section 6. In the present case the contract was not that of carriers: it was to let out a box for the conveyance of the horses and servants of the plaintiff, and was more like the contract which an innkeeper makes when he furnishes a postchaise than the undertaking of a common carrier. The terms of the ticket expressly provide that the Company shall not be responsible for any mischance befalling horses: it is competent to parties so to contract if they will; Harris v. Packwood, 3 Taunt. 264. It may be that, notwithstanding these strong terms, they would be responsible for a mischance arising

(a) See Hinton v. Dibbin, 2 Q. B. 646 (E. C. L. R. vol. 52).

(b) See Max v. Roberts, in Error, 12 East, 89.