DEBATING SOCIETIES.

THE BIRMINGHAM LAW STUDENTS' SOCIETY.
December 9, 1857.-Moot Point, No. 237.

Is a carrier of passengers liable as a common carrier of persons, by the custom of the realm ?

In order to get a clear insight into this question, I propose, in the first place, to consider the extent of liability to which common carriers of goods are exposed; and then, in the second place, to consider the responsibility of a carrier of passengers, according to the moot point.

1. As to the liability of a common carrier of goods. At the common law, a common carrier stands in the situation of an insurer of the property intrusted to him; and he is answerable for every loss or damage happening to it whilst in his custody, no matter by what cause occasioned, unless by the act of God, or that of the Queen's enemies: they are, therefore, responsible for the abstraction of the property by robbers and notwithstanding they are not personally, or, by their servants, guilty, of any negligence whatsoever, for the case is not within the exception of the act of God, or of the Queen's enemies. This common law liability being found to press with very great severity upon carriers, they soon found it necessary for their protection to make special contracts in all cases where goods of more than ordinary value were delivered to their care; and, considering the enormous increase of late in the goods traffic, such an attempt to restrict their liability we must regard as both reasonable and just. Well, they distributed notices, advertised and posted them on the walls of their buildings, and otherwise gave notice to the public of the terms upon which they intended the carriage of goods; but unless this notice was brought to the immediate knowledge of the consignor, no special contract arose, and thus the common law liability continued. Very well, this of course was so in many instances of great importance, until the Legislature thought fit to interpose; and now, by the 11 Geo. 4 and 1 Will. 4, c. 68, the common law liability is restricted to the carriage of all goods under the value of £10, with few exceptions; and where the various articles therein enumerated exceed this amount, the value and nature of such articles must be declared by the consignor, and an additional charge is payable as a premium thereon; and unless there conditions are complied with, the. loss is at the risk of the sender.

It is now proposed to consider the liabilities of carriers in respect of passengers; and here, I should say, that, with regard to their luggage, the doctrine seems now to be firmly settled that they are liable upon the ordinary footing of common carriers (see Robinson v. Dunmere, 2 Bos. and Pul. 416; Clark v.

Gray, 6 East, 564; 4 Esp. 177; Brooke v. Pickwick, 4 Bing. 218). With regard, however, to the persons of passengers, the carriers of passengers are not like carriers of goods, insurers against all injuries, except of the act of God, or by public enemies, and their undertaking is not an undertaking absolutely to convey safely. The rule appears to be that passenger carriers are required to carry safely those whom they take into their charge, as far as human care and foresight will go; consequently they are liable for the result of any accident which may arise through negligence, and numerous cases establish their non-liability as common carriers according to the custom of England (see Aston v. Heaven, 2 Esp; N. P. C. 533; Christie v. Griggs, 2 Camp. 79. Bremner v. Williams, 1 C. and P. 414; Sharp v. Grey, 9 Bing. 457; Grote v. Chester and Holyhead Railway Company, 2 Ex. 251; Curtis v. Drinkwater, 2 B. and A. 169; Jones v. Boyce, 1 Stark. R. 493; Great Northern Railway Company v. Harrison, 4 Week. Rep. 626, Ex.; Carpue v. London and Brighton Railway Company, 5 Q. B. 747; 3 Rail. C. 692; Bretherton v. Wood, 3 Bro. and B. 54). These cases are all in the negative, and I have been totally unable to find one single case supporting the affirmative of the moot point. As I have already, I fear, taken up too much of your space on this subject, I will omit the arguments of the members, and just say, that, to attempt to impose on carriers of passengers a similar liability to that of carriers of goods, would be to work the harshest and the most oppressive injustice. Their true liability is measured by the amount of carelessness or negligence committed by them beyond this their liability does not extend; and, therefore, passengers will do well in all cases to insure their lives, as a considerable number of accidents spring from unforeseen causes; and I should also say that Sir William Jones, in his work on Bailments, points out, as the reason for the distinction between the two cases, that a carrier of goods is strictly a bailee, and that a carrier of passengers is

not.

:

A. FEREDAY, Corresponding Secretary.

County court-Jurisdiction—Judgment summons— Discharge by Insolvent Court-Prohibition.-As more stated, ante, p. 127, the jurisdiction of a judge of a county court to commit a defendant to prison by warrant upon a judgment summons, issued under the 9 & 10 Vic. c. 95, s. 99, is at an end after the defendant has obtained a valid order of discharge under the Insolvent Debtors Act, upon a petition, the schedule to which contains the judgment debt (Copeman v. Rose, 26 Law Journ. Q. B. 251).

APPEALS FROM JUSTICES OF THE PEACE

(ante, pp. 142-144).

Appeals to Superior Courts of Common Law under the 20 & 21 Vic. c. 43.

Regula GENERALIS.-Michaelmas Term, 1857. 1. It is ordered, that in cases of appeal to a superior court under the provisions of the stat. 20 & 21 Vic. c. 43, the 15th and 16th Practice Rules of Hilary Term, 1853, so far as the same are applicable, shall be observed,

2. And in cases when the appeal is to be heard before a judge at chambers, the appellant shall obtain an appointment for such hearing, and shall forthwith give notice thereof to the respondent, and shall, four clear days before the day appointed for the hearing, deliver at the judge's chambers a copy of the appeal.

The statute with reference to which the above rule is framed gives an appeal on points of law from the decision of justices upon any information or comThe 15th and 16th plaint made before them. Practice Rules of Hilary Term, 1853, are to the effect, that appeals may be set down for argument in the special paper, at the request of either party, four clear days before the day of argument, notice thereof being given forthwith to the opposite party, and the appeal cases, with points for argument, being delivered to the judges.

The amount allowed for costs in the Queen's Bench is, we understand, nearly the same.

In the Queen's Bench, when costs have been taxed by the masters upon a judgment by default, the judgment paper must be given to the clcrk in the taxing office, for the purpose of having the costs entered after the masters have marked the allocaturs.

All parties applying for appointments on references to the masters under the Common Law Procedure Act, 1854, must apply to the clerk in he taxing office for such purpose.

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**It is both useful and necessary for an articled clerk to read books of practice, but not such complete works as Archbold. Your distinction is very just between a book of practice to be read and one to be referred to. Our "Library" practices of common law and equity will steer clear of too much baldness and too great minuteness.

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do we perceive the advantage of so doing, as any clerk is at perfect liberty not to read the answers till he has tried to answer the questions—a plan we have frequently recommended, and which we consider clerks are more likely to carry out, knowing that they can immediately compare each answer. Therefore, to the last proposal, we venture a decided negative respecting the former, we are willing to hear the opinions of our subscribers, as it is quite a question for them.

THE LIBRARY.-We shall take an early opportunity of noticing this work, the first volume of which will soon be completed. At present, we may mention that we have determined to accelerate the completion of the whole series, by bringing out a double number each month, i. e., eighty pages, instead of forty, the price of which will be 2s. This will enable us to bring out all the proposed works in less than three years.

L.-It is impossible for you to do more at present in the way of reading, but the chief thing is to be satisfied that you understand what you read. There is nothing like discussion with an intelligent companion, even though he has not read much. You ought to have seen more practice, and we decidedly advise your removal into a town office. The agent ought not to require any premium.

A. X.-We have not seen the work referred to. It appears to us, from what you state, that there is a mistake, and that the limitation is good as a remainder.

LEX.-A fresh edition of the Key is not likely to be issued for some time; the fourth edition brings down the questions and answers so as to include the present practice, and the abrogated practice is not even mentioned, so that there is no misleading the student. There is a fourth edition of Addison, but the third will do nearly as well.

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MOOT POINTS.

No. 27.-Courts of Record.

In Stephen's Commentaries it is said, that "the very erection of a new jurisdiction with power of fine or imprisonment makes it instantly a court of record." Now the Court of Chancery is continually exercising this authority, and yet the same author says that the equity side of the court is not of record; and the reason he gives is, that it has not been ranked as such from time immemorial, or expressly made such by act of Parliament. I wish, therefore, to be informed whether the equity side of the Court of Chancery is or is not of record? (Steph. Com. vol. 3, pp. 364, 399). P. R. J. No. 28.-Covenant not to carry on noisy TradeBinding Purchasers.

In 1853, T. S. conveyed a plot of land as to one undivided moiety, to dower uses in favour of A. in fee, and as to the other undivided moiety to similar uses in favour of B. in fee.

On the 20th December, 1854, A. and B. conveyed part of the same land to M. in fee, and other part to N. in fee, both purchasers covenanting with the vendors, their heirs and assigns, that no noisy trade should be carried on upon the land conveyed to them respectively.

In May, 1855, M. conveyed part of his land to X. in fee; X. entering into a similar covenant with M., his heirs and assigns.

In June, 1855, N. conveyed part of his land to L. in fee.

X. has broken his covenant, thereby causing especial annoyance to Z.

Has Z. any, and if so, what remedy for the injury he sustains. J. O. H. T.

ANSWERS TO MOOT POINTS.

No. 25.-General Devise-Trust Estates
(ante, p. 245).

I should have had but little hesitation in giving my opinion on this point, by answering the question in the affirmative, had the latter clause, bequeathing the legacy of £100 payable out of the residue, been omitted; and the cases would bear me out in such opinion (Baring v. Booth, 1 Law J. Rep. (N. S.) Ch. 204; Braybrooke v. Inskip, 8 Ves. 417). But, after carefully considering both the clauses of the bill, I am obliged to give my opinion in the negative.

In the leading case of Braybrooke v. Inskip, in which the question was determined whether a general devise passes trust estates, Lord Eldon said, the rule was not in his judgment; that in every case where

general words are used, the property shall or shal not pass; but that in each case every part of th will must be looked at for the intention with regar to such property. Then, commenting upon AttorneyGeneral v. Buller (5 Ves. 339), he said he knew no case which states, as a rule, that trust estates shall not pass, unless the intention that they should pass appears; and he inclined to think they would pass, unless he could collect from the will or purposes or objects of the testator that he did not mean they should pass. The result is this: a will containing words large enough, and no expression in it authorising a narrower construction than the general legal construction, nor any such disposition of the estate as is unlikely for a testator to make of any property not in the strictest sense his, nor any purpose at all inconsistent with as probable an intention to vest it in the devisee as to let it descend- he knew of no case in which a mere devise in these general terms, without more, where the question of intention cannot be embarrassed by any reasoning upon the purpose or objects, has been held not to pass trust

estates.

Regarding the above judgment of Lord Eldon's, and applying the rules there laid down to this case, it seems that under the devise of all the residue of testator's estate and effects, without anything appearing besides in the will to show the intention of the testator was contrary to such a construction, will pass trust estates. But here a question arises, whether the legacy of £100 being made payable out of such residue does not show that the intention was that trust estates should not pass? It is inconsistent with the nature of trust estates that they should be chargeable with the trustee's debts or legacies; and to make them so would constitute a breach of trust. Here there is a question of intention of a testator, whether certain trust estates do or do not pass by his will; if they v were meant to pass, and do actually pass, they are directed to be liable to the payment of a legacy, which is a breach of trust. If otherwise, they are not so liable, and there is no breach of trust. Are we to say that they do pass, and that there is a breach of trust, when we have no actual good ground for saying so? Are we to presume the testator intended a breach of trust when we have nothing to tell us whether he did or did not so intend? I think this would be a disposition of the estate as is unlikely for a testator to make of any property not in the strictest sense his; and the direction is inconsistent with an intention to vest it in the devisee; and I must therefore express my opinion that the trust estates do not pass.

V.