as he had not declared the nature and value of the article, and paid the increased charge according to the rates specified in the notice posted in the carrier's office.(1) If an uninsured parcel or package consists entirely of enumerated articles, the plaintiff would not, it seems, be entitled to recover even the value of the box or case in which they are contained.(m)

The eighth section of the statute provides, it will be observed, that the act shall not protect the carrier from his common law liability in respect of the felonious acts of his servants, and that it shall not protect the coachman, guard, bookeeper, or other servant from liability for losses or injuries occasioned by their own personal neglect and misconduct. As regards the latter part of the section it may be remarked, that the coachman, guard, or other servant of the carrier is not by the common law liable in any way ex contractu to the owner of the goods for loss or damage arising from his own personal negligence. The contract for the carriage of them is made with the carrier or coach proprietor who carries on the business, and not with a mere servant or agent of the carrier who has no interest in the concern, and does not share in the profits of the business. Thus where an action was brought against a coach porter for the value of a parcel lost by him, and also against the driver of a stage coach for the loss of a trunk, it was held that as the defendant in each case had received the article as the servant and agent of the coach proprietor and not on his own account, he could not be sued by the owner of the goods for the loss, but that the remedy of the latter was upon the contract with the master.(n)

As the law at present stands, therefore, the carrier may accept a bale of silk, a cart load of furs, or a case of maps, or any other article enumerated in the act, may receive the hire and enter into a contract for its conveyance according to an address given, and be guilty of the grossest breach of faith and never deliver the goods to the consignee, and yet the owner has no remedy against him for his breach of contract if he has omitted to insure the goods and pay the premium for insurance according to the increased rate of charge posted in the carrier's office. It is difficult to see why parties should be compelled TO INSURE and pay the premium for insurance, when there is no extraordinary risk to be run. Such an arrangement may be exceedingly advantageous to the carrier, but it is oftentimes expensive and inconvenient to the public. The owner of the goods may be quite ready

(1) Hinton v. Dibbin, 2 Ad. & E. N. s. 646; 2 G. & Dav. 26.

m Wyld v Pickford, 8 M. & W. 453, 462.

(n) Cavanagh v. Such, 1 Pr. 331. Williams v. Cranston, 2 Stark. 82. Buller, J., 5 T. R. 397; Ld. Kenyon, 3 T. R. 533.

to stand to all the ordinary risks and hazards of the road, and may desire only to receive at the hands of the carrier that amount of care and caution which is necessary for the faithful and due conveyance of the property, and the bona fide execution of the contract for the carriage of them. For the exercise of this labour of care which is inseparable from the labour of conveyance, the carrier receives his hire, and whilst it may be right to protect him from his risk as an INSURER, unless the goods he conveys are insured and paid for, he ought not in justice to the public to be released from those ordinary duties and obligations naturally resulting from his contract, and which are essential to the maintenance of good faith. If, indeed, the nature and quality of the parcel have been concealed, and such concealment has in any way increased the risk, or contributed to the injury or the loss, then the carrier ought to be released, as he is released, as we have before seen, (ante, 816, 817,) at common law and by numerous decisions of the courts, from all responsibility and liability in respect of such injury or loss.

Construction of the CARRIER'S ACT.-The statute extends to all the articles enumerated in the first section, although not within the words of the preamble," an article of great value in a small compass," and to entitle a party to recover for loss of or injury to any article of the description mentioned, express notice must be given to the carrier of the nature and value of the article, and the increased rate of remuneration paid, or an engagement to pay the same be accepted by the person receiving such article for conveyance. It is not sufficient for the owner to describe in writing on the outside of a parcel or box the nature of the contents. The carrier must have distinct information thereof, and an opportunity of demanding the increased rate of carriage.

Glass.-A looking-glass of considerable size, and exceeding the value of £10, was delivered packed up in a case at a carrier's receiving office. On the outside of the case was written, "Plate glass, keep this edge upwards," but no declaration was made of the nature and value of the article, and no increased rate of carriage paid. The glass was accidentally broken during the journey, and it was held that as no specific notice had been given to the carrier, and no increased remuneration, or engagement to pay the same had been given to enable him to guard the property from the ordinary hazards of the road, he was not responsible for the damage that had been sustained. (o)

(0) Owen v. Burnell, 2 C. & M. 353; 4 Tyr. 133, s. c. Boys v. Pink, 8 C. & P. 361.

Furs-Trinkets-Silks.-Hat bodies made of felt, which is a substance composed partly of the soft fur or down of the rabbit detached from the skin, and partly the wool of sheep, have been held not to be furs within the description of the carrier's act, (p) and wearing apparel and dresses made up for use seem not to come within the operation of the act. Thus it has been held that silk dresses made up for wear do not come within the meaning of the term “silks,” (9) and it would, therefore, probably be holden that boas and tippets and comforters in a lady's trunk would not be “furs" within the meaning of the act. Lord Abinger is reported to have held that eye-glasses set in gold with gold chains attached to them to be hung round the neck of the wearer, are not "trinkets," (r) and are not included amongst the enumerated articles. The gold, however, is gold in a manufactured state, but as the article may be thought to be often a necessary article of wearing apparel, it may possibly be considered not to come within the scope and meaning of the statute on that ground.

LIABILITY of the EMPLOYER of the COMMON CARRIER.

Payment of the FARE or HIRE.—Carrier's LIEN.—We have already seen that when credit has not by the express contract of the parties been given for the payment of the price of the carriage of goods, the delivery of the goods to the consignee, and the payment of the price of the carriage of them, are concurrent acts to be performed at the same time, so that the carrier is entitled to retain possession of the things he has carried, until he receives or is tendered his hire for their conveyance. (s) If the consignee refuses to accept them, the carrier then holds them at the disposal and for the benefit of the consignor, and is entitled to look to the latter for the payment of his hire. (Ante, 254 .) But the carrier has

no right of lien by the common law for anything beyond the price of the carriage of the goods conveyed. He cannot detain them until he has received payment of a general balance due to him from the owners of such goods. (t) Common carriers have oftentimes attempted to obtain a lien of this description, and to secure the payment of debts due to them for the previous conveyance of goods, by giving notices to the effect that all goods delivered to them for conveyance will be holden as a security for the payment of such debts, as well as for the payment of the price of their own

(p) Mayhew v. Nelson, 6 C. & P. 58.
(g) Davey v. Mason, Car. & M. 45.
(r) Davey v Mason, Car. & M. 50.

(s) Holt, C. J., Yorke v. Grenaugh, Raym.

867.

(t) Rushworth v. Hadfield, 6 East, 519; 7 East, 224. Butler v. Woolcott, 2 N. R. (5 B. & P.) 64. Storr v. Crowley, M'Clel. & Y. 137.

carriage.(u) But the common carrier has no right to make any such bargain or stipulation. He is bound, as we have already seen, so long as he has room in his cart or carriage, to convey the goods of all persons on being tendered his hire for the carriage of the particular goods sought to be conveyed, (x) and if he does obtain a promise from the consignor to the effect that he shall, if he carries the goods, have a right to retain them in his hands as a security for the payment of an antecedent debt, such promise is a mere nudum pactum of no force or effect in the eye of the law. (Ante, 22, 23.)

If a person goes to a coach office, and orders a place to be booked for him by a particular coach, and that be done, and he then leaves his portmanteau at the coach office, the coach proprietor will have a lien upon the portmanteau for his reasonable and customary remuneration and charge in such cases, but not for the full amount of the coach fare. If the party merely leaves his portmanteau, and no place is booked, the coach proprietor has no lien upon the portmanteau at all. (y) When goods delivered to be carried, are received from the waggon of the common carrier by the consignee, and are merely carried into the warehouse to be weighed, the carrier has no right to charge for warehouse-room, and if the goods are taken up on the road, and have never been booked, he has no right to charge for the booking of them; and if after tender of the price of the carriage he detains them for these small charges, the detention is unlawful, and an action may be brought against him in respect thereof. (2)

A common carrier of passengers and luggage has a right of lien upon the luggage for the payment of the price of the carriage of the passengers as well as of his effects; but he has of course no right to detain the person of the passenger or the clothes he is actually wearing. (a) And if the carrier once parts with the possession of the goods, he loses his lien as in other cases. But if he loses the possession by fraud, the lien revives if possession is recovered. (b)

Common carriers' CHARGES must be fair and reasonable, and according to the ordinary and customary rate of remuneration. They cannot charge more than the customary hire, but there is nothing to prevent them from charging less. If a person sends to a carrier's office to know his rate of charge, the carrier is bound by the representation there made by his clerks, and if goods are sent upon the faith of such representation, the carrier

(u) Wright v. Snell, 5 B. & Ald. 353.

(x) Ante, s. 3. Jones v. Tarleton, 9 M. & W. 677; 1 Dowl. N. s. 625.

(y) Higgins v. Bretherton, 5 C. & P. 2.

(2) Lambert v. Robinson, 1 Esp. 119.
(a) Wolf v. Summers, 2 Campb. 631.
(b) Wallace v. Woodgate, R. & M. 194.

cannot charge more than the sum named, although the clerk may have inadvertently fallen into a mistake. (c)

Railway CHARGES.-By an act of parliament, under which a railway company was incorporated, it was provided that the charges for the carriage of goods be reasonable and equal to all persons. The company itself acted as a common carrier of goods for the public, and issued certain scales of their charges for the carriage of goods, including the collection, loading, unloading, and delivery. They also carried goods for other carriers, to whom they made certain allowances for collection, &c., performed by such carriers. In their dealings, however, with a particular carrier, they refused to make such allowances, and it was held that the charges to such carrier were not equal or reasonable, and that such carrier might recover from the company divers extra charges paid by him over and above what had been charged to other carriers and to the public, in an action for money had and received, such payments not being voluntary, but made in order to induce the company to do that which they were by law bound to do without requiring such payments. And it was held, also, that all acts of parliament conferring privileges upon companies are to be construed strictly against the company, and liberally as regards the public. (d)

If a railway company makes and posts at the offices and stations a byelaw to the effect that every passenger who loses his ticket shall be liable to pay the full fare from the most distant station on the line, the company has no power to enforce this bye-law by detaining the person of a passenger who has lost his ticket and refuses to pay the specified amount.(e)

(e) Wingfield v. Packington, 2 C. & P. 600. (d) Parker v. Gt. West. Rail. Co. 7 M. & Gr. 253; 7 Sc. N. R. 835, s. c. As to what are not reasonable and equal charges, see Pickford v.

Grand Junct. R. Co. 10 M. & W. 399; 3 Rail.
Cas. 193.

(e) Chilton v. Lond. and Croyd. Rail. Co. (Exchr.) Nov. 27th, 1846.