jury occasioned by their own personal neglect or misconduct (d). Where felony on the part of such servant is set up in answer to a defence under the statute, the question of negligence becomes immaterial, and a mere suspicion that the loss arose from felony by the carrier's servants is not sufficient; it must be proved that it actually did so arise (e). Carriers are not to be concluded as to the value of any parcel by the value declared, but the party injured must prove the actual value by the ordinary legal evidence (f). Money may be paid into court by the common carrier in the same manner and with the same effect as money paid into court in any other action (g).

Although the foregoing statute in the preamble mentions articles of great value in a small compass, yet the provisions of sect. 1, in its enacting part, are not controlled by those words in the preamble. The terms of that section are general, and it applies to any glass article if exceeding ten pounds in value. The carriage of glass requires particular attention, and imposes peculiar risk on the carrier. The term "glass" in the act being unlimited, the court would not be justified in saying that it applied to small glasses only, and not to glass of every description. In such a case, therefore, the plaintiff cannot recover, if he does not comply with the terms of the notice in the office, unless he can establish wrongful conduct, so as to take the case out of the protection intended by the statute (h). The protection, however, does not extend to a case where damage has arisen to the owner from delay in the delivery of the goods (i). And in a recent case it has been held, that as the protection given by the first section of this statute is absolute, and without exception or restriction, if any of the goods enumerated in the first section be sent to a carrier for conveyance without a declaration of the nature and value of such goods, or without paying or engaging to pay an increased charge, according to sect. 2, the carrier is not liable for their loss, though it happen by the gross negligence of his servants (k). A person who delivers to a carrier goods of the description mentioned in sect. 1, must, in order to fix the carrier with responsibility for their loss, declare to him the nature and value of the goods at the time of their delivery, whether it takes place at his office, or on the road, or elsewhere (1).

Although by sect. 4 carriers can no longer by public notice (d) Sect. 8.

(e) See Great Western Railway v. Rimell, 18 C. B. 575; S. C. 27 L. J., C. P. 201, where Butt v. Great Western Railway, 11 C. B. 140, is explained; and see also Metcalfe v. Brighton Railway, 27 L. J., C. P. 205.

(f) Sect. 9.

(g) Sect. 10.

(h) Per Bayley, B., Owen v. Burnett, 4 Tyrw. 141; 2 Cr. & M. 353, S. C.

VOL. I.

(i) Heam v. London and South Western Railway, 10 Exch. 793; S. C. 24 L. J., Exch. 180.

(k) Hinton v. Dibbin, 2 Q. B. 646. See Wyld v. Pickford, 8 M. & W. 443; and Butt v. Great Western Railway, 11 C. B. 140; S. C. 20 L. J., C. P. 241.

(1) Hart v. Baxendale, 7 Exch. 769; S. C. 21 L. J., Exch. 123, in error, reversing the judgment of the Exchequer,

G G

limit their liability at common law with respect to articles not enumerated in the first section, still special contracts with respect to the conveyance of any articles may be entered into between the carrier and his customer, and will bind both parties (m).

In every contract for the carriage of goods, between a person holding himself forth as the owner of a lighter or vessel ready to carry goods for hire, and the person putting goods on board, or employing his vessel or lighter for that purpose, it is a term of the contract, on the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for the purpose of employment, for which he offers and holds it forth to the public. And the carrier and lighterman will be responsible for a breach of this implied undertaking, although he should give notice, "that he will not be answerable for any loss or damage, unless occasioned by want of ordinary care in the master or crew of the vessel, in which case he will pay 107. per cent, on such loss or damage, so as the whole does not exceed the value of the vessel and freight;" because the object of such notice is to limit the responsibility of the carrier in those cases only where the law would otherwise have made carriers answerable for the neglect of others, and for accidents which it might not be within the scope of ordinary care and caution to provide against (n). In Ellis v. Turner, 8 T. R. 531, where a similar notice was given, the owner of the vessel was held liable for the whole loss upon the special undertaking of the master.

By stat. 7 Geo. II. c. 15, s. 1, reciting, that it had been held that the owners of vessels were answerable for goods made away with by the masters or mariners, without the knowledge or privity of the owners, whereby merchants were discouraged from adventuring their fortunes as owners of vessels, to the prejudice of trade and navigation, it is enacted, that "the owners of vessels shall not be liable for any loss or damage, by reason of any embezzlement, secreting or making away with (by the master or mariners) of any goods shipped on board any vessel, or for any act, matter or thing, damage or forfeiture, done, occasioned or incurred by the master or mariners, or any of them, without the privity and knowledge of the owners, further than the value of the vessel with her appurtenances and freight for the voyage wherein the embezzlement, &c. shall be made."

An action was brought against the owner of a vessel to recover the value of a quantity of dollars (0) shipped by the plaintiff on board the defendant's vessel, bound from London for Hamburgh.

(m) Waller v. York and North Midland Railway, 2 E. & B. 750; Chippendale v. Lancashire and Yorkshire Railway, 21 L. J., Q. B. 23; Carr v. Lancashire and Yorkshire Railway, 7 Exch. 707; York, N. and B. Railway v. Crisp, 14 C. B. 527;

S. C. 23 L. J., C. P. 125. But see now 17 & 18 Vict. c. 31, s. 7. post, p. 452.

(n) Lyon v. Mells, 5 East, 428. (0) Sutton v. Mitchell, 1 T. R. 19; Brown v. Wilkinson, 15 M. & W. 391.

The dollars had been taken during the night, by force, from on board the vessel, by a number of freshwater pirates, as the vessel lay at anchor in the Thames. The defendant relied on the preceding statute, proving that one of the mariners was accessory in the robbery, by giving intelligence. The Court of King's Bench were of opinion, that this case fell within the words " any act, matter or thing done, occasioned or incurred by master, or mariners, or any of them," and, consequently, that the defendant was not liable beyond the value of the vessel and freight. The preceding statute afforded a very inadequate protection to the owners of vessels, for they still remained liable for the full amount of goods lost by robbery, embezzlement, &c. to which the master or mariners were not privy, and the case of a loss by fire was wholly unprovided for by the statute; to remedy these inconveniences, and for the further encouragement of trade and navigation, the statute 26 Geo. III. c. 86, s. 1, has confined the liability of the owners of vessels for any loss or damage, by reason of any robbery, embezzlement, &c., without the privity of the owners, to the value of the vessel and freight, although the master or mariners are not concerned in, or privy to, such robbery, embezzlement, &c. The second section exempts the owners of vessels entirely from answering for any loss by fire. And by the third section, "the owners of vessels shall not be liable to answer for any loss happening to any gold, silver, diamonds, watches, jewels, or precious stones, by reason of any robbery, embezzlement, making away with, or secreting thereof, unless the owner or shipper, at the time of shipping, insert in his bill of lading, or otherwise declare in writing to the master or owner of the vessel, the nature, quality and value of such gold, &c." When the goods were described as "1338 hard dollars," this being a coin current at the port of shipment, it was held a sufficient compliance with the act (p). The fourth section directs, that the freighters or proprietors shall receive satisfaction in average in proportion to their respective losses, if the value of the vessel and amount of freight shall not be sufficient to make them full compensation; and empowers the freighters or proprietors, or any of them on behalf of himself and the other proprietors, or the owners of the vessel, to exhibit a bill in equity for the discovery of the amount of the losses, and also of the value of the vessel and freight, and for an equal distribution and payment thereof among the freighters in proportion to their losses; provided that where the part-owners of the vessel exhibit the bill, they shall annex an affidavit negativing collusion with any of the defendants; and shall thereby offer to pay the value of the vessel and freight, as the court shall direct, whereupon the court shall ascertain the value, and direct payment thereof, as in the case of bills of interpleader. The foregoing statute relates only to ships

(p) Gibbs v. Potter, 10 M. & W. 70.

usually occupied in sea voyages, and not to small craft, lighters and boats concerned in inland navigation (g). See further provisions on this subject in stat. 53 Geo. III. c. 159, and Gale v. Laurie, 5 B. & C. 156; stat. 6 Geo. IV. c. 125, ss. 53, 55.

The preceding statutes do not affect the liability of masters and mariners (r).

III. Of the Stat. 17 & 18 Vict. c. 31, s. 7-The Railway and Canal Traffic Act, 1854.

The common law liability of carriers might always be defeated by express contracts to carry. In Carr v. Lancashire and Yorkshire Railway Company (s), Martin, B., says: "No doubt at common law a carrier may enter into a special contract. He may, it is true, be bound to carry goods, and if he refuses so to do, except upon the terms of a special contract, he may subject himself to an action for that breach of duty; but if a special contract be entered into by him and the party sending the articles to be conveyed, both sides are bound by the terms of the contract." And proof of notice specifically delivered to a particular person, and his subsequent silence upon the delivery of goods, are evidence of such special contract.

With a view of remedying the hardships thus imposed upon persons sending goods by railways and canals, the above statute (17 & 18 Vict. c. 31) was passed. The first six sections are framed with a view of compelling railway and canal companies to make arrangements for receiving and forwarding traffic without delay and without partiality; and give power to the Court of Common Pleas to enforce this obligation (t). Sect. 7 enacts as follows: "Every such company as aforesaid shall be liable for the loss of or for any injury done to any horses, cattle or other animals, or to any articles, goods or things, in the receiving, forwarding or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition or declaration made and given by such company contrary thereto, or in anywise limiting such liability: every such notice, condition or declaration being hereby declared to be null and void: provided always, that no greater damages shall be recovered for the loss of or for any injury done to any of such animals beyond the sums hereinafter mentioned; (that is to say), for any horse 501.; for any neat cattle, per

(q) Hunter v. M'Gown, D. P. 1819; 1 Bli. 573.

(r) See 7 Geo. II. c. 15, s. 4; 26 Geo. III. c. 36, s. 5; 53 Geo. III. c. 159, s. 4; 17 & 18 Vict. c. 104, part 9, ss. 502-516. (s) 7 Exch. 707; S. C. 21 L. J., Exch. 261.

(t) See Ransome v. Eastern Counties Railway, 26 L. J., C. P. 91; Caterham

Railway v. London and Brighton Railway, 26 L. J., C. P. 161; Orlade v. North Eastern Railway, 26 L. J., C. P. 129; Barendale v. The North Devon Railway, 6 Weekly Rep. 38; Ransome v. Eastern Counties Railway, 27 L. J., C. P. 166; Harris v. Cockermouth and Workington Railway, 27 L. J., C. P. 162; and Cooper v. South Western Railway, 27 L. J., C. P. 324.

head, 157.; for any sheep or pigs, per head, 21.; unless the person sending or delivering the same to such company shall, at the time of such delivery, have declared them to be respectively of higher value than as above mentioned; in which case it shall be lawful for such company to demand and receive by way of compensation for the increased risk and care thereby occasioned, a reasonable per centage upon the excess of the value so declared above the respective sums so limited as aforesaid, and which shall be paid in addition to the ordinary rate of charge; and such per centage or increased rate of charge shall be notified in the manner prescribed in the stat. 11 Geo. IV. & 1 Will. IV. c. 68, and shall be binding upon such company in the manner therein mentioned: provided also, that the proof of the value of such animals, articles, goods and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensation for such loss or injury: provided also, that no special contract between such company and any other parties respecting the receiving, forwarding, or delivering of any animals, articles, goods or things as aforesaid, shall be binding upon or affect any such party, unless the same be signed by him or by the person delivering such animals, articles, goods or things respectively for carriage: provided also, that nothing herein contained shall alter or affect the rights, privileges, or liabilities of any such company under the said act of 11 Geo. IV. & 1 Will. IV. c. 68, with respect to articles of the descriptions mentioned in the said act."

It has been decided that the effect of this section is to make notices by railway and canal companies limiting their liability as carriers void, but that it does not prevent them from entering into special contract for the carriage of goods, provided the conditions contained in such contracts be just and reasonable, and provided the contract be signed by the person delivering the goods to be carried. Simons v. The Great Western Railway Company, and the London and North-Western Railway Company, appellants, and Durham respondent. In delivering judgment in these cases, Jervis, C. J., said, "It seems to me that it was the intention of the legis lature, so far as I can gather from this very obscurely worded section, to place the whole railway system under the control of the courts. The previous sections give large powers to the Court of Common Pleas; but then there are various other questions which will arise which cannot be determined by the court alone, some of which are with reference to what was then complained of, special contracts resulting from notices published, which prevented parties from recovering, when in truth they were bound by the monopoly of the company who would carry in no other way; and it is intended to prevent that, by rather a rough mode of justice undoubtedly, in this section. I think the fair meaning of the 7th section is this: that in the first place we will declare that all notices and conditions, which heretofore were given and by which the public