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E. T. 1862. "while so detained, by reason of which several of said horses were Queen's Bench "kicked and injured, and several also became sick and diseased; "and the said horses were thereby greatly deteriorated in value; "and the plaintiff has expended large sums in curing said horses." I call attention to the shape of that paragraph especially, because, as to the two other paragraphs, there is a condition or portion of the special contract which, if it alone had been relied upon, I would probably consider just and reasonable, and an answer to the second and third paragraphs. But, as to the first paragraph, which complains of the detention of the horses at Limerick, the defence pleaded to it is, "That the horses were received to be carried and conveyed by "the defendants, for the plaintiff, from Limerick to Limerick Junc"tion station aforesaid, at a certain special reduced rate of charge, "and under and subject to a certain contract, made between the "plaintiff and the defendants, and signed by the plaintiff, whereby "it was agreed that the said horses being so received, as in this plea "mentioned, the defendants should in no case be responsible for the delivery of said horses at any particular time, and should be free "from all liability in respect of them, whether in the loading, "unloading, or in the transit or conveyance of the same, or whilst "in their vehicles or on their premises. And the defendants say

"that the said alleged injury, damage or deterioration, in the summons and plaint mentioned, occurred and was caused while the "said horses were being loaded or unloaded, or in the transit or "conveyance of the same, or whilst in their vehicles or on their premises."


In the argument, it was almost conceded that the first term or condition of the special contract would, if taken by itself, be unjust and unreasonable, as it sought to excuse the defendants from all liability under all circumstances; but it was contended that, there being an alternative condition, of which the plaintiff might make choice, that makes the whole just and reasonable. That alternative condition is not alluded to or set out out in the fifth defence; and I expressed a doubt whether the pleader can ask the Court to permit him to rely upon a document which is not before us.

But, as the plaintiff has set out the whole of the special contract E. T. 1862. Queen's Bench in his replication, I think that we can look at it in aid of the defence, as it is upon the whole of the record and pleadings that we are to give judgment.

As to the first paragraph, I should, in the first instance, state that condition A, the first portion of the special contract, is unreasonable, as it stands. That condition is :-" The Waterford and Limerick "Railway Company undertake the conveyance of horses at the low "rates of charges above stated, solely on the condition that they "shall be free from all liability in respect of them, whether in the "loading, unloading, or in the transit and conveyance of the same, "or whilst in their vehicles or on their premises." If that condition stood alone, it would not, in my opinion, be a just and reasonable condition, as it excludes the possibility of the defendants being liable under any state of circumstances. But then we have to see whether condition A, when aided by condition B, the alternative, becomes just and reasonable. Condition B is this:-" The Waterford and "Limerick Company will undertake the risk of conveyance only in "consideration of an additional payment of £20 per cent. on the "low rate of charge." If the condition had stopped there, I would, notwithstanding the able argument addressed to us on behalf of the plaintiff, have probably come to the conclusion that the whole contract was just and reasonable; for, whilst at the low rate of charge the defendants sought to excuse themselves from liability, they at the same time offered an alternative that, upon the payment of £20 per cent. additional, the defendants would become responsible for the safe carriage of the horses. But the question is, whether condition B, when taken altogether, including not only the part which I have read, but also the remaining portion which I am now about to read, is just and reasonable. The remainder of it is this:"But

แ no claim for damage sustained by any animal conveyed at such "additional rate will be entertained by the Company, unless the "injury is stated and pointed out to the Company's agent at the "time of unloading."

In the course of the argument, and before Mr. Serjeant Sullivan 8 L

VOL. 15.






E. T. 1862. commenced his reply, attention was called by the Court to this term Queen's Bench of the contract; and it was pointed out to Counsel that this term appeared to the Court to be in itself unjust and unreasonable; but WATERFORD we did not hear from the learned Serjeant a single observation to relieve us from that impression. Condition B cannot be separated into two portions. It is one entire alternative offer by the Company to undertake the risk of conveyance upon payment by the owner of the horses of £20 per cent. in addition to the low rate of charge; but that no responsibility shall attach to the Company on account of any injury done to the animals, unless it is pointed out to the Company's agent at the time of unloading. We are all of opinion that to allow Railway Companies to bind parties by this kind of condition would be unjust and unreasonable; and as condition A, taken by itself, is unjust and unreasonable, it cannot possibly be aided by condition B, which is not in itself just or reasonable. Therefore, the plaintiff is entitled to judgment upon the first paragraph.

There are two other paragraphs, as to which different considerations are applicable; but which now become comparatively unimportant. The second paragraph may possibly be considered as going for the non-delivery of the horses within a reasonable time. It does not complain of any default on the part of the defendants during the transit; and the third paragraph is framed on the special contract to convey the horses from Limerick to the Limerick Junction station, at such an early hour on the day of their departure from Limerick, that they should be delivered at the Limerick Junction station in time to reach Dublin before the close of the same day. Now, there is a term of the special contract which, according to my present opinion, would be applicable to both the second and third paragraphs. The term is that "The Company will in no case be responsible for the "delivery of horses at any particular time, or for any particular "market or race-meeting." If the defendants had relied upon that term of the special contract, and upon that term alone, as a condition applicable in answer to the second and third paragraphs, it might possibly be that we should have been obliged


E. T. 1862.
Queen's Bench





to give judgment in their favor. But the present defence is no answer to the action; and the defendants having mixed up the terms together in one defence to all three paragraphs, ask us whether condition B, without the addition of this term, is a just WATERFORD and reasonable condition? The opinion of the Court is, that condition A, so taken, is not a just and reasonable condition, and that the plaintiff is entitled to our judgment on the second and third paragraphs also. If the plaintiff goes further, it will be for him to consider how far he will be able to maintain his action upon the second and third paragraphs.


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