*349] *unloading the same; and that the said horse was killed, and the 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,f(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:(6) 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.

from their negligence: but, even if that be so, it is a different liability from that declared on, and the variance is fatal; Latham v. Rutley, 2 B. & C. 20 (E. C. L. R. vol. 9). Ross v. Hill, 2 C. B. 877 (E. C. L. R. vol. 52), decides only that the words "safely and securely," when used in a contract of bailment, must be construed with reference to the common law liability of the bailee. Cur. adv. vult. Lord DENMAN, C. J., in this vacation (February 24th), delivered the judgment of the Court. After having stated the pleadings, his Lordship said :

.

*It appeared, by the evidence, that the injury to the horse, *353] which caused its death, was occasioned by a defect in one of the horse-boxes in which the plaintiff's horses were placed, and which defect was pointed out to the servants of the defendants, who tried, but unsuccessfully, to cure it. On the other hand, the defendants proved, that, when the horses were received, a ticket was given to the plaintiff, stating the amount paid by the plaintiff for the carriage of the horses, and the journey they were to go, and having at the bottom the following memorandum. (His Lordship then read it: see p. 349, antè.)

It appears to us to be clear that the terms contained in the ticket given to the plaintiff at the time the horses were received formed part of the contract for the carriage of the horses between the plaintiff and the defendants, and that the allegation in the declaration that the defendants received the horses to be safely and securely carried by them, which would throw the risks of conveyance upon the defendants, is disproved by the memorandum at the foot of the ticket; and the alleged duty of the defendants safely and securely to carry and convey the horses would not arise upon such a contract.

It may be that, notwithstanding the terms of the contract, the plaintiff might have alleged that it was the duty of the defendants to have furnished proper and sufficient carriages, and that the loss happened from a breach of that duty; but the plaintiff has not so declared, but has alleged a duty which does not arise upon the contract as it appeared in evidence. The rule, therefore, will be absolute.

Rule absolute.(a)

(a) Reported by H. Davison, Esq., and C. Blackburn, Esq.

The burden of proof is on the carrier to exempt him from liability and show that no care could have prevented the loss. Murphy v. Staton, 3 Munf. 239; Ecourt v. Street, 2 Bailey, 157; Bell v. Reed, 4 Binn. 127. Though a stage-owner posted notices that he would not be accountable for baggage unless the fare was paid, and the same entered on the way-bill, he was held liable for the loss of a trunk through negligence, though the fare was not paid; notice not having been brought home to the owner, nor to his servant who carried it to the stage-office. Bean v. Green, 3 Fairf. 422. Such proprietors

can exempt themselves from liability for loss of goods carried by them, if at all, by advertisements which are plain and explicit. Barney v. Prentiss, 4 Har. & J. 317. Common carriers may, by special contract, limit the extent of their responsibility for the safety of goods delivered to them to be carried. Bingham . Rogers, 6 Watts & Serg. 495. An exception of liability against "the dangers of the lake" does not excuse the carriers for a loss occasioned by negligence in the lading of the goods or the navigating of the vesssel. Fairchild v. Slocum, 19 Wend. 329. Where, in a contract by car

riers, "the dangers of the lake" are excepted,
and a party suing for a loss omitted to state the
exception in his declaration, the variance was
held to be fatal. Ibid. S. C. 7 Hill, 292;
Stamp. Hutchinson, 11 Pennsylvania State
Rep. 533.
A common carrier cannot restrict
his liability as such, by a mere notice. Slocum
e. Fairchild, 7 Hill, 292; Fish v. Chapman, 2
Kelly, 349. But he may restrict his liability
by a special contract, though not for losses aris-
ing from negligence; and where there is a spe-
cial acceptance the onus of showing not only
that the cause of the loss was within the terms
of the exception, but also that there was no
negligence, lies on the carrier. Swindler v.
Hilliard, 2 Rich. 286. An exception of "the
dangers of the river," in the contract with a
common carrier by river-boat, covers a loss
occasioned by a collision with another boat, and

he will not be liable, unless the loss occurred by his negligence or that of the hands employed on the boat, or might have been prevented by reasonable skill and diligence. Whitesides v. Tharlhill, 12 Smedes & Marshall, 599. Carriers may limit their liability for the loss of goods intrusted to them, not resulting from their negligence, by notice. Laing v. Colder, 8 Barr, 479. In an action against a common carrier it is sufficient for the plaintiff to prove that the goods were received by the carrier, and that he has failed to deliver them according to his undertaking. If the carrier cannot show that the loss of the goods has arisen from one of the excepted perils, he must pay the loss. Proof of negligence is unnecessary to charge him, and proof of diligence will not excuse him. M'Call v. Brock, 5 Strobh. 119.

*The QUEEN v. CLAYTON.

[*354

On a question whether a district, anciently part of a parish, was entitled to have separate overseers, and to levy separate poor rates, either under stat. 13 & 14 C. 2, c. 12, s. 21, as being otherwise unable to have the benefit of stat. 43 Eliz. c. 2, or as being itself a parish or reputed parish within stat. 43 Eliz. c. 2, the sessions stated the following facts for the opinion of the Court, submitting it to the Court to draw such inferences from them as a jury might draw: The district has a boundary well defined, lies at the extremity of the parish, is 2135 acres in extent, has a population of 700 persons, and is distant about nine miles from the parish church; the parish, exclusive of the district, is 8020 acres in extent, and has a population of 1600 persons. Before the dissolution of the Monasteries, the district had a chapel with a chantry and endowment of lands. The chapel and lands were granted by the Crown, in 31 Eliz., to trustees on certain trusts, in execution of which they had ever since nominated the minister of the chapel for license by the bishop, and paid over the profits of the lands to such minister, without interference by the vicar of the parish. The chapel, before 43 Eliz., had all parochial rights and sacraments, and two churchwardens, and its own burial ground. The district has never contributed to the repairs of the parish church; has always had separate surveyors of highways, and a separate highway rate, and has not contributed to the parish highways: and has always had a constable. The titheable lands of the district have always paid tithes to the vicar; the minister of the district chapel is supported by the above-mentioned endowment, but has no tithes.

With respect to the maintenance of the poor: the earliest known appointment of an overseer for the district was an appointment of one in 1738. This appointment of a single overseer was continued until 1785, when two were appointed; and there have been two ever since. Separate poor rates have always been made for the parish and the district; and the poor in each have been maintained separately as to out-door relief. The amount in the pound raised has always been the same in both parish and district; the district either taking the amount already fixed by the parish, or consulting the parish as to the amount, accordingly as the district rate was made before or after the parish rate. There was no workhouse in the district; but its poor were sent for in-door relief to the parish workhouse, and there maintained out of the parish rate. At the end of the year, the officers of the parish and district settled accounts, and whichever had money beyond its own expenditure handed the balance to the other. The accounts of the district, after allowance by its own vestry, were submitted to the parish vestry for allowance; but not vice versa. Held,

That the district was not entitled to have separate overseers, either under stat. 13 & 14 C. 2, r. 12, s. 21, or as having been a parish or reputed parish at the time of the passing of stat. 13 Eliz. c. 2.

On appeal against a poor rate made on the district of Whaplode Drove,

in the Parts of Holland, in the county of Lincoln, the sessions confirmed the rate, subject to a case, which was, in substance, as follows.

Whaplode Drove is a district the boundary whereof is well defined: it is situate across the southern extremity of Whaplode, in the Parts of Holland, in the county of Lincoln. It comprises a village, a chapel with a chancel to the same, and also a burying ground attached there

*355] to, and about 2135 acres of land, and a population of about 700

souls; and is distant about nine miles from the parish church of Whaplode. Whaplode, exclusive of Whaplode Drove, contains about 8020 acres of land, with a population of about 1600 souls.

The important parts of the case next following the above statements were thus abstracted in the judgment of the Court.

"It appears that, before the dissolution of the Monasteries, the abbot and convent of Crowland were lords of the manor of Whaplode, patrons of the church, and owners of the tithes; that there was then a chapel in the district of Whaplode Drove, with a chantry and endowment of lands. This chapel and the lands were granted by the Crown, in the 31st of Elizabeth, to certain persons, from whom they have been continued in trustees, on trusts to pay the rents and profits to the minister of the chapel; and these trustees have on a vacancy always nominated a person to be minister, who has been licensed by the Bishop. The vicar of Whaplode, the advowson of which vicarage belongs to the Crown, has never appointed, or in any way interfered with, the minister of the chapel. The chapel, before the passing of stat. 43 Eliz. c. 2, always had all parochial rights and sacraments, and its own churchwardens, two in number, separate from Whaplode, and its own separate burial ground. The inhabitants of the district have never contributed, and do not contribute, to the repair of the church of Whaplode. There have been always separate surveyors of highways, and a separate rate for the district, which has not contributed to the other highways in the parish; and it has always had a *constable. The titheable lands *356] of the district have always paid tithes to the vicar of Whaplode; but considerable part of the district is tithe free, having been abbey land. The minister is supported by the profits of the lands with which the chapel is endowed, but does not appear to have any tithes. It is admitted in the case that anciently the district was parcel of the parish. With respect to the maintenance of the poor, the earliest appointment (a) of an overseer is in the year 1738, when one of the inhabitants of the district was appointed overseer for the district; and the practice so continued till 1785, when two were appointed; and from that time there have been always two. Separate poor rates have constantly been made for the parish and for the district; and the poor in each have been maintained separately, so far as out-door relief has been given; the amount

(a) The case stated that "It cannot be ascertained if any, or what number of overseers were appointed for Whaplode Drove previously to 1738."