forth, they must be proved if put in issue. Indorsements of interest are to be presumed to have been written at the time they bear date, until contradicted (k). The defendant may, if he has so pleaded it, show either that there was no consideration for the note, or that the consideration has failed (7). The defendant cannot set up in defence a parol agreement, entered into when the note was made, that it should be renewed when it became due (m); nor a parol agreement that payment shall not be demanded until after such a time (n); for this would be incorporating with a written contract an incongruous parol condition, which is contrary to first principles. Where a promissory note, on the face of it, purported to be payable on demand, parol evidence is not admissible to show that, at the time of making it, it was agreed that it should not be payable until after the decease of the maker (o). Where in an action by the indorsee against the maker of a promissory note, payable with interest on demand, the plaintiff having proved that he gave value for it, the defendant tendered evidence of declarations made by the payee, when the note was in his possession, that he (the payee) had not given any consideration for it to the maker; it was held, that the evidence was inadmissible, as the payee could not be identified with the plaintiff, and the note could not be treated as over due at the time of the indorsement (p). So where, in an action by indorsee of A. of a note, against maker, plea, that the note was made without consideration, and indorsed and delivered by A. to W., for the purpose only of its being discounted; that W., in fraud of the maker (defendant) and without his consent, indorsed the same, and delivered it to plaintiff, who gave no consideration, and who knew of the want of authority; it was held, that evidence tendered by defendant of declarations made by W. to prove the fraud, was not admissible; inasmuch as there was not shown any community of interest, neither was any evidence offered which, either directly or indirectly, connected the plaintiff with W., or to show want of consideration, or that the note had been taken when over due (g). On a plea that the defendant did not make the promissory note mentioned in the declaration, he cannot give in evidence that he was of imbecile mind at the time when he made it (r). Conclusion. The limits prescribed to this Abridgment will not permit the insertion of any more cases under this head, nor indeed (k) Smith v. Battens, 1 M. & Rob. 341. (m) Hoare v. Graham, 3 Campb. 57. is it necessary; for although a promissory note (s), while it continues in its original shape, does not bear any resemblance to a bill of exchange, yet when it is indorsed the resemblance begins; for then it is an order by the indorser upon the maker of the note to pay to the indorsee: the indorser is as it were the drawer, the maker of the note the acceptor; and the indorsee the payee. From this resemblance between a bill of exchange and promissory note, it follows that many of the rules which are applicable to bills of exchange, hold also in the case of promissory notes (t). But the indorser does not stand in the situation of maker, relatively to his indorsee. Hence the indorsee cannot declare against his indorser as maker, even where the indorser has indorsed a note not payable or indorsed to him, and where consequently his indorsee cannot sue the original maker (u). (s) Per Lord Mansfield, C. J., Heylyn v. Adamson, 2 Burr. 676. (t) See De Berdt v. Atkinson, 2 H. Bl. 336; and ante, p. 383. (u) Gwinnell v. Herbert, 5 A. & E. 436. See Burmester v. Hogarth, 11 M. & W. 97. CHAPTER X. CARRIERS. I. Of Common Carriers, and their Responsibility, III. Of the Statute 17 & 18 Vict. c. 31, s. 7-the Railway PAGE 441 447 452 455 456 459 460 461 463 V. By whom Actions against Common Carriers ought to VI. Of the Declaration, and .. Pleading under New Rules VII. Evidence VIII. Damages I. Of Common Carriers, and their Responsibility. MASTERS (a) and owners of ships, hoymen, wharfingers (b), lightermen, barge-owners (c), proprietors of waggons, stagecoaches, railway companies (d), &c., are denominated common carriers; and by the custom of the realm (e), that is, by the common law, are bound to receive (ƒ) and carry the goods of the subject for a reasonable hire or reward (g), to take due care of them in their passage, to deliver them (h) safely (i), and in the (a) Morse v. Slue, 2 Lev. 69. (b) Maving v. Todd, 1 Starkie's N. P. C. 72. (c) Rich v. Kneeland, Cro. Jac. 330; Hob. 17, S. C. (d) But a railway company are only carriers of goods which they profess to carry or actually carry. Palmer v. Grand Junction Railway, 4 M. & W. 749; Johnson v. Midland Railway, 4 Exch. 367; Slim v. Great Northern Railway, 14 C. B. 647; S. C. 23 L. J., C. P. 166; Crouch v. London and North Western Railway, 14 C. B. 255; S. C. 23 L. J., C. P. 73. In the latter case it was held that a common carrier from a place within to a place without the realm, is subject to the same liabilities at common law as a common carrier who carries only within the realm. As to car riers by railways and canals, see now 17 & 18 Vict. c. 31, post. (e) 1 Roll. Abr. 2, (C) pl. 1. (f) Jackson v. Rogers, 2 Show. 327; Wyld v. Pickford, 8 M. & W. 443. (g) Bastard v. Bastard, 2 Show. 81. (h) Per Popham, C. J., Owen, 57. (i) In Hyde v. The Trent and Mersey Navigation Company, 5 T. R. 396, the general question, whether a carrier was bound to deliver the goods to the person to whom they are directed, was agitated; Ashhurst, Buller, and Grose, Js., were of opinion that a carrier was so bound; but Kenyon, C. J., appears to have inclined to the contrary opinion. The special circumstances of the case (which see, post) rendered it unnecessary for the court to decide the general question. CARRIERS. same condition as when they were received; or in default thereof to make compensation to the owner for any loss or damage which happens while the goods are in their custody, except such loss or damage as arises from the act of God (j), as storms, tempests, and the like; or of the enemies of the King. If the consignee refuse to accept the goods the carrier is not bound to inform the consignor of the fact; but he is merely bound to do what is reasonable under the particular circumstances of each case, which is a question for the jury (k). Where the consignee of a parcel refused to pay the amount charged by a carrier for the conveyance of a parcel as being excessive, and the carrier immediately sent it back from Plymouth, its place of destination, to London, whence it had been sent, and the consignee afterwards, but within a reasonable time after it had been tendered for delivery, offered to pay the sum charged, but the carrier refused to receive the same or to deliver the parcel; it was held, that such conduct was unreasonable on the part of the carrier, and that he was liable for the value of the parcel (1). The hire must be a reasonable sum, and the carrier must not charge for the same services more to one customer than another (m), nor, unless there be something to show that such information was reasonable, has he any right to refuse to carry a parcel without being informed of its contents (n). Carriers are, generally, answerable for the honesty of their servants: if, however, the plaintiff's own conduct, in full knowledge of the circumstances, be such as to lead to the loss; if he afford undue temptation and facility to the crime of the servant, he can maintain no action for a loss thus occasioned by his own fault (0). In an action brought against a common carrier by water, charging the defendant with negligence; it was held to be no defence that the ship was tight when the goods were placed on board, but that a rat, by knawing out the oakum, had made a small hole through which the water gushed; on the ground, that whatever was not excused by law, was to be deemed a negligence in the carrier, and that he was answerable in all events, except where the goods were damaged by the act of God or the king's enemies (p). So where the proprietors of the Trent navigation had undertaken to (j) Amies v. Stevens, Str. 128; and see Oakley v. Port of Portsmouth Steam Packet Company, 25 L. J., Exch. 99; S. C. 11 Exch. 618. (k) Hudson v. Baxendale, 27 L. J., Exch. 93. (1) Crouch v. Great Western Railway, 27 L. J., Exch. 345. (m) Parker v. Great Western Railway, 11 C. B. 545; S. C. 21 L. J., C. P. 57; Edwards v. Great Western Railway, 11 C. B. 588; S. C. 21 L. J., C. P. 72; and see carry goods from Hull to Gainsborough, and the vessel, on board which the goods were placed, drove against an anchor in the River Humber, and sank; it was held, that the carriers were responsible to the owner of the goods for the damage sustained; although it was proved that the accident was occasioned by the negligence of the persons on board a barge in the river, who had not put a buoy out, to mark the place where the anchor lay: the court observing, that there was a degree of negligence in the master of the vessel also; for his not seeing the buoy ought to have put him upon inquiring more minutely about the anchor; and even if there had not been any actual negligence, yet negligence in law was sufficient (q). A common carrier being an insurer, in all cases (except the two before mentioned), is responsible for a loss occasioned by accidental fire, provided such loss happens while the goods are remaining in his custody as a common carrier. As where the goods intrusted to a common carrier were consumed by accidental fire communicating to a booth where the goods had been deposited by the carrier in the course of the journey; it was held, that the carrier was liable, although the jury found that the goods were consumed without any actual negligence on the part of the carrier (r). So where common carriers from A. to B. charged and received for cartage of goods from a warehouse at B. (where they usually unloaded, but which did not belong to them), to the house of the consignee, in B.; it was held, they were responsible for a loss by an accidental fire while the goods were in that warehouse; although they allowed the profits of the cartage to another person, and that circumstance was known to the consignee (s). So where to a declaration on a contract by the master of a steam vessel to convey goods from Dublin to London, and to deliver the same at the port of London to plaintiff or his assigns, the defendant pleaded that, after the arrival of the vessel at London defendant caused the goods to be deposited on a wharf, there to remain until they could be delivered to the plaintiff, the wharf being a place where goods from Dublin were accustomed to be landed, and fit and proper for such purposes, and that before a reasonable time for delivery elapsed they were destroyed by an accidental fire, the plea was held ill; the court considering, that the defendant was acting, during the whole of the time whilst the goods were in his possession, under the obligation of a common carrier, who is liable for every loss (not specially excepted), except the act of God and the king's enemies (t). But where the goods are not remaining in the defendant's custody as common carrier, he is not liable; as where the goods had been carried by the defendant from A. to B. and there deposited in his warehouse, merely for the convenience of the owner, until they could be forwarded by another (1) Proprietors of the Trent Navigation (r) Forward v. Pittard, 1 T. R. 27. tion, 5 T. R. 389; and see Bourne v. Gatliffe, 3 M. & G. 643; 7 M. & G. 850; S. C. 11 C. & F. 45. (t) Bourne v. Gatliffe, supra. |