as well in the case of a carrier by water as where the goods are conveyed by land. Where goods are sent to a customer for approval, as until acceptance no property vests in the consignee, the action against the carrier for loss is properly brought by the consignor.

The plaintiff had shipped goods on board the Mercurius, of which the defendant was owner, to be carried from London to Tonningen. The goods (as appeared by an admission on the part of the plaintiff,) were expressed in the bills of lading, to be shipped by order on account of Hesse and Co. of Hamburgh. The ship arrived in the river Eyder, but was prevented from proceeding to Tonningen by the commander of one of his Majesty's frigates, and ordered to return home. After her return, the captain made an affidavit, that he believed the cargo to be Danish property; whereupon the goods were unloaded and delivered over to the admiralty marshal, and libelled in the admiralty court; the plaintiff afterwards recovered them by a proceeding in that court. The action was brought to recover the expenses incurred by the suit in the admiralty. On the part of the defendant it was insisted, that the goods being shipped by order and on account of Hesse and Co. the property vested in them immediately on their being shipped on board the Mercurius. Dawes v. Peck and Dutton v. Solomonson, were cited. It was also urged, that a recovery by the present plaintiff could not protect the defendant from an action at the suit of Hesse and Co. On the part of the plaintiff it was contended, that there was a distinction between the carrying goods from one part of England to another, and the transporting them beyond sea. That after a delivery of goods to a carrier, to carry them from one part of England to another, the vendor had no property in the goods, but only a right of stopping in transitu; and it was admitted, that if the goods were directed to be sent by a carrier, without specifying the car

y Swain v. Shepherd, 1 M. and Rob. 223, Parke, J.

z Brown v. Hodgson, London Sittings, B. R. 2nd March, 1809, 2 Campb. 36.

Meredith, 2 Campb. 639. The vendor is not bound to enter and insure the goods with the carrier as above the limited value, without instructions for that purpose. Cothay v. Tute, 3 Campb. 129. But the delivery to the carrier ought to be in such a manner, as to furnish the purchaser with a remedy over against the carrier, in case of loss. Buckman v. Levi, 3 Campb. 414. See also Clarke v. Hutchins, 14 East, 475.

rier, the delivery to the carrier was a delivery to the vendee; but urged that, in the case of goods sent abroad, if the goods arrived safe, they were to be paid for: aliter, if they do not arrive. Lord Ellenborough, C. J. "They are shipped by order and on account of Hesse and Co. I can recognize no property but that recognized by the bill of lading." Plaintiff nonsuited.

It is observable that, in the case of Davis v. James, 5 Burr. 2680, it was holden, that the consignor might maintain the action; but the ground of that decision was, that the consignor had made himself responsible to the carrier for the price of the carriage. So where, by the bill of lading, the captain was to deliver the goods for the consignor, and in his name to the consignee, and at the time of shipment the consignee had no property in the goods, it was holdena, that an action against the ship-owners for damage done to the goods, must be brought in the name of the consignor; and that, although the consignee had insured the goods and advanced the premiums of insurance before the arrival of the ship. In Moore v. Wilson, 1 T. R. 659, where the action was brought by the consignor, and the plaintiff having averred in his declaration, that the hire was to be paid by him, proof that the hire was to be paid by the consignee was holden not to be a variance, on the ground that whatever might be the contract, between the vendor and the vendee, the agreement for the carriage was between the carrier and the vendor, the latter of whom was by law liable. Where goods were delivered to a carrier at Exeter to convey to Falmouth, and there deliver them to an agent, who was to forward them to the consignee abroad; and the carrier detained the goods on the ground of a lien against the agent for his general balance; it was holden that trover might be maintained against the carrier at the suit of the consignorb. An action lies against the commander of a ship of war who takes the bullion of a private merchant on board, for not safely keeping and delivering it. So where the master of a store-ship, in the king's service, took in the bullion of a private merchant on freight, from Gibraltar to Woolwich, it was holdend that an action lay against him for the loss of the bullion.

a Sargent v. Morris, 3 B. and A. 277. c Hodgson v. Fullarton, 4 Taunt. 787. b Tagliabue v. Wynn and another, d Hatchwell v. Cooke, 6 Taunt. 577. Cornwall Lent Ass. 1813. Wood, B.

MSS.

V. Of the Declaration and Pleading under New Rules.

FORMERLY the declaration in actions against common carriers stated their employment as common carriers, their liability by the custom of the realm, a delivery to, and acceptance by the defendants of the goods to be carried, for a reasonable hire or reward, concluding with the loss or damage to the goods; but the modern practice is not to declare in this form, but in assumpsit (9), and not to state either the employment of the defendants as common carriers, or the custom of the realm (10) as to their liability. This form of

e Herne's Plead. 76. Vid. Ent. 37, 38.

(9) It may be observed, however, that where the circumstances of the case require a count in trover to be added, the ancient form of declaration is adhered to, or (what is more usual) a concise form, analagous to the ancient form, and founded on a breach of duty is adopted. It is worthy of remark, that Denison, J. said, in Dale v. Hall, B. R. H. 24 G. 2. MSS. that where the action was founded on the custom, it was ex contractu, and that trover and an action on the custom could not be joined; and in Boson v. Sandford and another, Salk. 440, the court held, that an action, charging* the defendants with a breach of their duty as carriers, was not an action ex delicto but ex quasi contractu, and on this ground they decided, that the action being brought against two of four part-owners of a ship could not be sustained, although the defendants had not pleaded this matter in abatement, but had relied on the general issue, not guilty. This case, however, as to the taking advantage of the omission of some of the partners on the general issue, has been overruled in Rice v. Shute, 5 Burr. 2611, and in subsequent cases, and as to the form of the action, Boson v. Sandford, was overruled in Dickon v. Clifton, 2 Wils. 319, which was recognized by Lord Ellenborough, C. J. delivering the opinion of the court in Govett v. Radnidge, 3 East,

62.

(10) "The custom of the realm is the law of the realmt, and consequently it need not be set forth in the declaration." Per Denison, J. in Dale v. Hall, MSS. and per Lord Hardwicke, C. J. in Boucher v. Lawson, Ca. Temp. Hardw. 199. See also Hargrave's Co. Litt. p. 89, a. n. 7. "It seems not only unnecessary, but even

* See the declaration, 2 Show. 478, and Carth. 158.
+1 Inst. 115, 6. Hob. 18.

declaration has prevailed since the decision of Dale v. Hall, M. T. 1750, in which it was settled, that it did not make any difference, whether the plaintiff declared on the custom, or more generally in assumpsit; for, by stating that the defendant carried for hire, it would appear that the defendant was a common carrier, and then the law would raise the promise from the nature of the contract. But although the plaintiff is not bound to allege the custom, yet he must produce sufficient evidence to bring his case within the customf.

The advantage resulting to the plaintiff from declaring in assumpsit is, that he may join the common counts with the special counts in assumpsit, if he has other and distincts causes of action to which they are applicable. The inconvenience which arises from declaring in assumpsit is, that it lets in a plea of abatement for want of joining all the parties, and it excludes the right to join a count in trover. If the plaintiff is desirous of avoiding this inconvenience, he may either pursue the ancient method of declaring with a recital of the custom, or he may adopt a more general form (omitting the recital of the custom,) and allege his gravamen as consisting in a breach of duty arising out of an employment for hire, and may consider that breach of duty as a tortious negligence. But under the new rules, H. T. 4 W. 4, in actions of tort for misfeazance, several counts for the same injury, varying the description of it, are not allowed. And in the like actions for nonfeazance, several counts founded on various statements of the same duty, are not allowed. Declaring in tort, the plaintiff was permitted to add a count in trover, whereby the defendant was ousted of his plea in abatementh, on the ground of not joining all the parties; and further, if the action was brought against several defendants, and some were found guilty, and others acquitted, the plaintiff was, notwithstanding, entitled to judgment against those who had been found guilty. The reader, however, should be apprized, that the

f Per Lord Hardwicke, C. J. in Bou

cher v. Lawson, H. 9 G. 2. B. R. Ca. temp. Hardw. 199.

g See new rules.

h Mitchell v. Tarbutt, 5 T. R. 649.

i

Ansell v. Waterhouse, B. R. Trin.

T. 57 Geo. 3. 6 M. and S. 385.
Govett v. Radnidge, B. R. 3 East,
62. Cowper v. South, 4 Taunt. 802.
Bretherton v. Wood, 3 B. and B. 54.

improper to recite the custom in the declaration, because it tends to confound the distinction between special customs, which ought to be pleaded, and general custom of the realm, of which the courts are bound to take notice without pleading."

doctrine laid down in Govett v. Radnidge, was opposed by two decisions in the Court of Common Pleas, viz. first by the case of Powell v. Layton, 2 Bos. and Pul. N. R. 365, in which it was determined, that a declaration against a carrier by water, stating, "that he had received goods to carry for freight, but that he had not delivered them according to his duty," was founded in contract; and that to a declaration so framed, the defendant might plead that he was only liable jointly with his partners, and that his partners were not sued; and, secondly, by the case of Max v. Roberts, and eight others; there the gravamen was alleged as consisting in a breach of duty as ship-owners, arising out of an employment for freight. The plaintiff could not prove all the defendants to be owners; the court were of opinion, that, as the action was founded in contract, it was incumbent on the plaintiff to prove all the defendants to be 'owners, and having failed in that, he could not recover against those who were proved to be owners. A writ of error was brought, which, having been twice argued in the Court of King's Bench, was adjourned to the Exchequer Chamber, as it was supposed that a decision in this case might settle and put at rest the question upon which the contrary judgments had been given; but, after argument, the twelve judges were unanimously of opinion, that both the counts of the declaration were so defective in several material respects, (perfectly collateral to the question upon which the determination of the judges was sought,) that no judgment could be given for the plaintiff upon either of them. But where an action on the case was brought against ten defendants, proprietors of a coach, for the carriage of passengers for hire, for injuries sustained by plaintiff, a passenger, in consequence of negligence in driving, whereby the coach was overset, and the jury found against eight of the defendants, and in favour of the other two; and judgment was entered accordingly in B. R. On error in Exchequer Chamber, the judgment was affirmed, the court observing, that in this case a duty was imposed on the defendants which did not arise by the contract, but by the custom or common law of England.

Trover will not lie against a common carrier for merely losing goods entrusted to his care without any actual wrong"

k 2 N. R. 454.

1 Max v. Roberts, 12 East, 89. But see Weall v. King, 12 East, 452.

m Bretherton and others v. Wood, Exch. Ch. 3 Brod. and Bingh. 54.

n Ross v. Johnson, 5 Burr. 2825. Kirkman v. Hargreaves, (case from Lancaster Sum. Ass. 1800, before Graham, B.) B. R. H. 41 G. 3. MSS. S. P.