however, the railway company take care to stipulate with all passengers going by their line that they will not be responsible for the luggage of passengers, except it is regularly booked and paid for. The effect of this, it is conceived, where the requisition is not complied with, is at any rate to exempt them from all liability as common carriers, though it may still leave them chargeable for any want of ordinary care and precaution in their mode of dealformity with the general rules which they have found it necessary to lay down for conducting their business. But the case is different, when, as frequently happens, the regulation respecting booking is a dead letter, and the general practice is to take charge of passengers' luggage without requiring it to be booked. In this case the regulation in question is nothing but a notice, the legal effect of which is very doubtful, and which, if the directors think it advisable to issue, they ought to issue as a notice and not in the form of a regulation requiring the approval of the Board of Trade." Report of Officers of Railway Department, 1842, p. xix.

The Carriers' Act distinctly provides that no general notice shall limit the liability of common carriers with regard to objects other than those enumerated in the act, and the proper rule appears to be, that although railway companies may refuse to take charge of passengers' luggage, unless such reasonable regulations as they have found it necessary to lay down are complied with, yet that if they do actually take charge of such luggage, they incur the ordinary common law liability of carriers, subject only to the limitations of the Carriers' Act. Ib.

Unquestionably issued as a mere notice, such a regulation could not have any further effect in limiting the liability of the company than what is ascribed to it in the above remark. But semble, where the company take care to embody it in the tickets delivered to every passenger on taking his place, as part of the terms on which they are willing to accept him, this would constitute a special contract between the parties of the nature stated in the text. See Palmer v. Grand Junction Railway Company, 4 M. & W. 752.

ing with such luggage; in other words, for gross negligence, and à fortiori for a wilful misfeasance.(b)

452. Again, the articles composing the luggage may be of the kinds enumerated in the Carriers' Act, and so the company may be entitled in regard of them to the protection of such act, though this of course they can claim only when a notice has been duly affixed in their offices, &c., pursuant to the requisitions of the act.

453. Lastly, the company may be entitled to a protection more or less extensive in regard of the luggage of passengers under the provisions of their own act of incorporation; as, for instance, where a railway act provided that the company should not be responsible for any thing taken with him by a passenger, save articles of clothing of a given weight and dimensions. Under a provision of the above kind, the company are exempt from all liability in respect of goods accompanying a passenger, not being articles of clothing of the requisite weight and dimensions, (c) that is to say, from all liability as carriers; for the clause cannot, it is conceived, be construed into a licence to the company to divest themselves of their character as carriers as to such goods, and deal with them at their own free will and pleasure.

454. The rights (d) of the company as passenger

(b) The company cannot, it is conceived, by such a contract, be allowed to contravene any of the provisions of their act in favour of the public.

(c) Elwell v. The Grand Junction Railway Company, 5 M. &

(d) As to the right of detaining passengers practising frauds

carriers. They have a right to demand and receive their fare at the time when the passenger engages his seat; if he refuses to pay it, they are not bound to carry him. (e) The company as passenger carriers also have a lien on the baggage of the passenger for his fare, but not on the person of the senger, or the clothes he has on. (ƒ)

pas

on the company under Railways Clauses Consolidation Act (8 Vict. c. 20), see act, ss. 103, 104, post, App.

(e) In order to secure the due payment of their fares, and to guard against frauds as well on the part of the public as of their own servants, railway companies have invariably found it indispensable to adopt the ticket system, which requires fares in all instances to be prepaid, and tickets given to the passengers, which are considered as the sole vouchers for the payment of the fare, and are collected from the passengers before they leave the trains or stations. Rep. Railw. Department, 1842, p. xvii. (f) See Storey on Bailments, ss. 603. 604.

CAP. VI.

Of certain general Statutory Provisions for the Regulation, &c. of Railway Companies, whereby their Powers, Duties, Obligations, &c. are more or less extensively modified. (a)

I-Of Powers of Supervision reserved to Board of Trade.
II.-Of Provisions for the Extension and Enlargement of the
Powers of Railway Companies.

III.—Of Regulations tonching matters of Police.

IV.-Of Provisions qualifying or extending the Duties, &c. of Railway Companies.

V. Of certain conditions annexed to future Grants of Powers for making of Railways.

I. Of Powers of Supervision reserved to Board of Trade over Railway Compaies. (b)

455. Inspection of Railways. The board of Trade, in the first place, may appoint proper persons for the inspection of railways, and also for the purpose of

(a) There are certain general provisions of the acts in question relating more or less to all the above heads, that it may be proper to notice in this place. As to the interpretation of acts, see 3 & 4 Vict. c. 97, s. 21; 5 & 6 Vict. c. 55, s. 21; 7 & 8 Vict. c. 85, s. 25. See also as to recovery and application of penalties, 5 & 6 Vict. c. 55, s. 22; 7 & 8 Vict. c. 85, s. 24. As to taking away of certiorari, see 3 & 4 Vict. c. 97, s. 17. Also as to the service of all communications to or from Board of Trade, and the authentication of the latter, &c., see 3 & 4 Viet. c. 97, s. 20; 5 & 6 Vict. c. 55, s. 19; 7 & 8 Vict. c 85, s. 23. (b) As to power given to Board of Trade to certify for construction of screens to roads under Railway Clauses Consolidation

enabling the Board to carry out the provisions of any general act relating to railways. (c) Persons appointed in the capacity of inspectors are authorized at all reasonable times and upon producing their authority, if required, to enter upon and examine the railway and the works, &c., belonging thereto; and wilfully to obstruct any such person in the execution of his duty subjects the guilty party to a penalty not exceeding 10l., which is recoverable before a single justice. (d)

456. Notice of Opening. Railways are not to be opened without a twofold notice to the Board of Trade, 1st, of the intended opening; and 2ndly, of the time when the railway will, in the opinion of the company, be sufficiently completed for the safe conveyance of passengers, &c. (e) It a railway is opened without notice, the company are liable to a penalty of 201. for every day that the railway continues open, (f) until the requisite notices have been given and expired. Where, on inspection, the railway is reported to be dangerous, the Board of Trade are empowered to suspend the opening from time to time; if, in spite of the order of the Board to the contrary, the company open the railway, they are liable to a penalty of 201. for every day that the

Act (8 Vict. c. 20), see act, s. 63, post, App.; also as to power given to Board of Trade under same act to modify construction of public works of engineering nature, where strict compliance with act impossible or inconvenient, see same act, s. 66, post, App.

(c) 3 & 4 Vict. c. 97, s. 5; 7 & 8 Vict. c. 85, s. 15; App. (d) 3 & 4 Vict. c. 97, ss. 5 and 6, App.

(e) 5 & 6 Vict. c. 55, s. 4, App.

(f) Ibid. s. 5, App.