from their negligence: but, even if that be so, it is a different liability from that declared on, and the variance is fatal; Latham v. Rutley, 2 B. & C. 20 (E. C. L. R. vol. 9). Ross v. Hill, 2 C. B. 877 (E. C. L. R. vol. 52), decides only that the words "safely and securely," when used in a contract of bailment, must be construed with reference to the common law liability of the bailee. Cur. adv. vult. Lord DENMAN, C. J., in this vacation (February 24th), delivered the judgment of the Court. After having stated the pleadings, his Lordship said :

.

*It appeared, by the evidence, that the injury to the horse, *353] which caused its death, was occasioned by a defect in one of the horse-boxes in which the plaintiff's horses were placed, and which defect was pointed out to the servants of the defendants, who tried, but unsuccessfully, to cure it. On the other hand, the defendants proved, that, when the horses were received, a ticket was given to the plaintiff, stating the amount paid by the plaintiff for the carriage of the horses, and the journey they were to go, and having at the bottom the following memorandum. (His Lordship then read it: see p. 349, antè.)

It appears to us to be clear that the terms contained in the ticket given to the plaintiff at the time the horses were received formed part of the contract for the carriage of the horses between the plaintiff and the defendants, and that the allegation in the declaration that the defendants received the horses to be safely and securely carried by them, which would throw the risks of conveyance upon the defendants, is disproved by the memorandum at the foot of the ticket; and the alleged duty of the defendants safely and securely to carry and convey the horses would not arise upon such a contract.

It may be that, notwithstanding the terms of the contract, the plaintiff might have alleged that it was the duty of the defendants to have furnished proper and sufficient carriages, and that the loss happened from a breach of that duty; but the plaintiff has not so declared, but has alleged a duty which does not arise upon the contract as it appeared in evidence. The rule, therefore, will be absolute.

Rule absolute.(a)

(a) Reported by H. Davison, Esq., and C. Blackburn, Esq.

The burden of proof is on the carrier to exempt him from liability and show that no care could have prevented the loss. Murphy v. Staton, 3 Munf. 239; Ecourt v. Street, 2 Bailey, 157; Bell v. Reed, 4 Binn. 127. Though a stage-owner posted notices that he would not be accountable for baggage unless the fare was paid, and the same entered on the way-bill, he was held liable for the loss of a trunk through negligence, though the fare was not paid; notice not having been brought home to the owner, nor to his servant who carried it to the stage-office. Bean v. Green, 3 Fairf. 422. Such proprietors

can exempt themselves from liability for loss of goods carried by them, if at all, by advertisements which are plain and explicit. Barney v. Prentiss, 4 Har. & J. 317. Common carriers may, by special contract, limit the extent of their responsibility for the safety of goods delivered to them to be carried. Bingham . Rogers, 6 Watts & Serg. 495. An exception of liability against "the dangers of the lake" does not excuse the carriers for a loss occasioned by negligence in the lading of the goods or the navigating of the vesssel. Fairchild v. Slocum, 19 Wend. 329. Where, in a contract by car

riers, "the dangers of the lake" are excepted, and a party suing for a loss omitted to state the exception in his declaration, the variance was held to be fatal. Ibid. S. C. 7 Hill, 292; Stamp . Hutchinson, 11 Pennsylvania State Rep. 533. A common carrier cannot restrict his liability as such, by a mere notice. Slocum e. Fairchild, 7 Hill, 292; Fish v. Chapman, 2 Kelly, 349. But he may restrict his liability by a special contract, though not for losses arising from negligence; and where there is a special acceptance the onus of showing not only that the cause of the loss was within the terms of the exception, but also that there was no negligence, lies on the carrier. Swindler v. Hilliard, 2 Rich. 286. An exception of "the dangers of the river," in the contract with a common carrier by river-boat, covers a loss occasioned by a collision with another boat, and

he will not be liable, unless the loss occurred by his negligence or that of the hands employed on the boat, or might have been prevented by reasonable skill and diligence. Whitesides v. Tharlhill, 12 Smedes & Marshall, 599. Carriers may limit their liability for the loss of goods intrusted to them, not resulting from their negligence, by notice. Laing v. Colder, 8 Barr, 479. In an action against a common carrier it is sufficient for the plaintiff to prove that the goods were received by the carrier, and that he has failed to deliver them according to his undertaking. If the carrier cannot show that the loss of the goods has arisen from one of the excepted perils, he must pay the loss. Proof of negligence is unnecessary to charge him, and proof of diligence will not excuse him. M'Call v. Brock, 5 Strobh. 119.

*The QUEEN v. CLAYTON.

[*354

On a question whether a district, anciently part of a parish, was entitled to have separate overseers, and to levy separate poor rates, either under stat. 13 & 14 C. 2, c. 12, s. 21, as being otherwise unable to have the benefit of stat. 43 Eliz. c. 2, or as being itself a parish or reputed parish within stat. 43 Eliz. c. 2, the sessions stated the following facts for the opinion of the Court, submitting it to the Court to draw such inferences from them as a jury might draw: The district has a boundary well defined, lies at the extremity of the parish, is 2135 acres in extent, has a population of 700 persons, and is distant about nine miles from the parish church; the parish, exclusive of the district, is 8020 acres in extent, and has a population of 1600 persons. Before the dissolution of the Monasteries, the district had a chapel with a chantry and endowment of lands. The chapel and lands were granted by the Crown, in 31 Eliz., to trustees on certain trusts, in execution of which they had ever since nominated the minister of the chapel for license by the bishop, and paid over the profits of the lands to such minister, without interference by the vicar of the parish. The chapel, before 43 Eliz., had all parochial rights and sacraments, and two churchwardens, and its own burial ground. The district has never contributed to the repairs of the parish church; has always had separate surveyors of highways, and a separate highway rate, and has not contributed to the parish highways; and has always had a constable. The titheable lands of the district have always paid tithes to the vicar; the minister of the district chapel is supported by the above-mentioned endowment, but has no tithes.

With respect to the maintenance of the poor: the earliest known appointment of an overseer for the district was an appointment of one in 1738. This appointment of a single overseer was continued until 1785, when two were appointed; and there have been two ever since. Separate poor rates have always been made for the parish and the district; and the poor in each have been maintained separately as to out-door relief. The amount in the pound raised has always been the same in both parish and district; the district either taking the amount already fixed by the parish, or consulting the parish as to the amount, accordingly as the district rate was made before or after the parish rate. There was no workhouse in the district; but its poor were sent for in-door relief to the parish workhouse, and there maintained out of the parish rate. At the end of the year, the officers of the parish and district settled accounts, and whichever had money beyond its own expenditure handed the balance to the other. The accounts of the district, after allowance by its own vestry, were submitted to the parish vestry for allowance; but not vice versa. Held,

That the district was not entitled to have separate overseers, either under stat. 13 & 14 C. 2, r. 12, s. 21, or as having been a parish or reputed parish at the time of the passing of stat. 13 Eliz. c. 2.

On appeal against a poor rate made on the district of Whaplode Drove,

in the Parts of Holland, in the county of Lincoln, the sessions confirmed the rate, subject to a case, which was, in substance, as follows.

Whaplode Drove is a district the boundary whereof is well defined: it is situate across the southern extremity of Whaplode, in the Parts of Holland, in the county of Lincoln. It comprises a village, a chapel with a chancel to the same, and also a burying ground attached there*355] to, and about 2135 acres of land, and a population of about 700 souls; and is distant about nine miles from the parish church of Whaplode. Whaplode, exclusive of Whaplode Drove, contains about 8020 acres of land, with a population of about 1600 souls.

The important parts of the case next following the above statements were thus abstracted in the judgment of the Court.

"It appears that, before the dissolution of the Monasteries, the abbot and convent of Crowland were lords of the manor of Whaplode, patrons of the church, and owners of the tithes; that there was then a chapel in the district of Whaplode Drove, with a chantry and endowment of lands. This chapel and the lands were granted by the Crown, in the 31st of Elizabeth, to certain persons, from whom they have been continued in trustees, on trusts to pay the rents and profits to the minister of the chapel; and these trustees have on a vacancy always nominated a person to be minister, who has been licensed by the Bishop. The vicar of Whaplode, the advowson of which vicarage belongs to the Crown, has never appointed, or in any way interfered with, the minister of the chapel. The chapel, before the passing of stat. 43 Eliz. c. 2, always had all parochial rights and sacraments, and its own churchwardens, two in number, separate from Whaplode, and its own separate burial ground. The inhabitants of the district have never contributed, and do not contribute, to the repair of the church of Whaplode. There have been always separate surveyors of highways, and a separate rate for the district, which has not contributed to the other highways in the parish; and it has always had a *constable. The titheable lands *356] of the district have always paid tithes to the vicar of Whaplode; but considerable part of the district is tithe free, having been abbey land. The minister is supported by the profits of the lands with which the chapel is endowed, but does not appear to have any tithes. It is admitted in the case that anciently the district was parcel of the parish. With respect to the maintenance of the poor, the earliest appointment (a) of an overseer is in the year 1738, when one of the inhabitants of the district was appointed overseer for the district; and the practice so continued till 1785, when two were appointed; and from that time there have been always two. Separate poor rates have constantly been made for the parish and for the district; and the poor in each have been maintained separately, so far as out-door relief has been given; the amount

(a) The case stated that "It cannot be ascertained if any, or what number of overseers were appointed for Whaplode Drove previously to 1738."

in the pound has always been the same in both, the overseers of the district taking that amount which had been already fixed by the overseers of the parish when they made a rate subsequent to the parish, or consulting the overseers of the parish as to the amount which they were about to fix when they made a rate prior to the parish. There was no workhouse in the district; but the poor of the district who required indoor relief were always sent to the workhouse of the parish, and there maintained by the overseers of the parish out of the rate levied by them.(a) At the end of the year the overseers of the parish and of the district seem to have compared their respective accounts; *and whichever had money in hand beyond their own expenditure [*357 Landed such money or balance to the other. The accounts of the overseers of the district, after being allowed by their own vestry, were submitted to the vestry of the parish and allowed by them, previous to their being exhibited before the justices, but not the accounts of the parish overseers vice versa."(b) The case stated, however, that, since the appointment of a district auditor under stat.. 7 & 8 Vict, c. 101, that officer had refused to allow any such payments of balances by either district to the other.

The case then stated that the rate appealed against was made on 20th April, 1846, and assessed upon rateable property situate in Whaplode Drove only, and was of no greater amount than was required if Whaplode Drove ought by law to be separately rated for its own poor, but was higher than would have been required if there had been one uniform rate over both districts. The Poor Law Commissioners, by order of 23d November, 1835, declared that eleven "parishes or places" named in their order, and among them Whaplode Drove and Whaplode (mentioned as numbers 10 and 11 of the said parishes, &c.), should be united. for the administration of poor law relief by the name of the Holbeach Union;" and that a fixed number of guardians should be separately elected for each district of the said union: That the order had always been in force from 7th December, *1835, when it came into opera- [*358 tion; and that Whaplode Drove and Whaplode had separately contributed to the common fund of the Union in the proportions defined by the said order.

The respondents contended that Whaplode Drove was, at the time of the passing of stat. 43 Eliz. c. 2, either actually or by reputation, a parish, and was therefore entitled to have overseers appointed for it, and to maintain its own poor separately from Whaplode: or that, since stat. (a) The case stated that orders of removal were made to and from Whaplode Drove and out parishes: but no such orders had ever been made as between Whaplode Drove and Whaplode. (b) The statement in the case, as to payment of balances, was that, if, after audit and allowance, the officers of Whaplode Drove had a balance in their hands, which was most usually the case, such balance was by them paid over to the officers of Whaplode; and there have been instances when balances have been due to the officers of Whaplode Drove, in which case, until the time of the appointment next mentioned, such balances were paid over to them by the, officers of Whaplode.

VOL. XIII.-28

T

13 & 14 Charles 2, c. 12, overseers had been appointed for Whaplode Drove under sect. 21 of that act.

The question for the opinion of the Court was, whether Whaplode Drove, upon the grounds above mentioned, or any of them, was entitled to have overseers appointed for it, and to maintain and manage its own poor, and to have rates and assessments made and levied thereon for that purpose separately. The Court was to have all the power to draw inferences and conclusions from the facts stated which a jury upon the trial of a civil action would have. If the Court should be of opinion that the district of Whaplode Drove was so entitled, the rate was to be confirmed; if the Court should be of a contrary opinion, to be quashed.

The case was argued in last term.(a)

Whitehurst and Tomlinson, in support of the order of sessions.-First: the facts stated in the case show that, from a very early time, the two districts of Whaplode and Whaplode Drove were, for all ecclesiastical pur*359] poses, completely severed. Whaplode Drove is shown to have been in fact a parish within the definitions in 1 Blackst. Com. 112, and 1 Burn's Ecclesiastical Law, tit. Chapel, p. 300, 9th edition. The fair inference from the facts appearing on the case is, that this state of things was immemorial, and that Whaplode Drove was originally a separate parish from Whaplode: Attorney-General v. Brereton, 2 Ves. sen. 425. But it is not necessary to consider whether the districts were distinct parishes; for it is clear that at the passing of stat. 43 Eliz. c. 2, the district of Whaplode Drove had distinct churchwardens from those of the parish. Wherever that was the case, as the churchwardens of the parish could not usurp the powers of the churchwardens of the district (which they must have done had they acted as overseers of the whole), the statute must have been inoperative unless section 1 was construed to apply to the churchwardens de facto of districts not, properly speaking, parishes. That construction was very early put upon the statute; Hilton v. Pawle, Cro. Car. 92, Nichols v. Walker, Cro. Car. 394; and has been confirmed at a later period; Forest of Dean v. Linton, 2 Salk. 487. The cases have turned entirely on the completeness of the ecclesiastical separation de facto at the time of the passing of stat. 43 Eliz. c. 2, the conditions of which are enumerated in Rudd v. Morton, 2 Salk. 501, S. C. 4 Mod. 157, nom. Rudd v. Foster, and all of which are found here. Some incidents of such a separation were wanting in each of the cases that may be cited on the other side, as Regina v. The Justices of Worcestershire, 12 A. & E. 28 (E. C. L. R. vol. 40), in which, however, the authority of Rudd v. Morton was recognised. If Whaplode Drove is not a separate reputed parish within the meaning of stat. 43 Eliz. c. 2, then the whole parish is unable to have the benefit of that statute, and the district is (a) January 20th and 24th. Before PATTESON, and WIGHTMAN, Js. Lord DENMAN, C. J., and COLERIDGE, J., were sitting in the Criminal Court of Appeal.

*360]