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HILARY VACATION, 21 VICT.
COOMBS V. THE BRISTOL AND EXETER RAILWAY
THE declaration stated that the defendants being common
carriers for hire, the plaintiff delivered to the defendants as such common carriers, and the defendants as such carriers received from the plaintiff certain goods of the plaintiff, to wit, a packet of whalebone, to be safely and securely carried by the defendants from Exeter to Bristol and there to be
delivered by the defendants for the plaintiff, for reward in
To an action against a carrier for the
loss of the plaintiff's
goods, it is no the goods were
the defendants by A., who,
the loss, and that the defend
that behalf. And although a reasonable time in that hehalf claimed comhad elapsed before this suit: Yet the defendants made default in carrying and delivering the said goods, and also whilst they so had the said goods for the purpose aforesaid, so negligently and improperly carried the same, that by the default, negligence, and improper conduct of the defendants in that behalf, the said goods were wholly lost to the plaintiff, &c.
Plea.—That the said goods were delivered to the defendants by, and were received by them from, one Charles Avery, to be carried from Exeter to Bristol and at Bristol to be delivered to the plaintiff; and that the said goods having been accidentally lost, and the said C. Avery, as the consignor thereof, having claimed from the defendants compensation
VOL. III.-N. S.
ant paid him,
was the person
entitled to sue.
BRISTOL AND EXETER RAILWAY CO.
for such loss, the defendants before the bringing of this action paid to him as such consignor, and the said C. Avery accepted from them, a large sum of money as the full value of the said goods and in satisfaction and discharge of the said claim. -Averment: that the defendants had not, either at the time of the delivery and acceptance of the said goods or afterwards down to and at the time of the payment aforesaid, notice, either from the plaintiff or otherwise, that the said C. Avery, in delivering the said goods to be carried as aforesaid, was acting for or on behalf of the plaintiff, or was his agent for such delivery: and that the payment aforesaid was made by them in the bonâ fide belief that the said goods were delivered to them by C. Avery on his own account, and that he was the person entitled to claim and receive satisfaction for the loss thereof.
Demurrer and joinder therein.
Prideaux, in support of the demurrer.—The plea admits that the contract was made with the plaintiff, that the goods were the plaintiff's, that they were to be delivered to the plaintiff, and that they were lost; but it sets up as an answer that the goods were received by the defendants from a third person, who, as consignor, claimed compensation for their loss, and that the defendants paid him the value of the goods, they not having had at any time notice that he was the mere agent of the plaintiff. Those facts afford no defence whatever to the action. The only contract disclosed on the record is a contract with the plaintiff, and it is no answer to say that another person has been compensated for the breach of it.-The Court then called on
Kinglake, Serjt., to support the plea.-The action is not by the plaintiff, as owner of the goods, for their conversion, but is founded on the contract to carry. The plea