VI. Of the Declaration. Pleading under the Common Law Procedure Act, p. 460. Formerly the declaration in actions against common carriers stated their employment as common carriers (z), 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 afterwards it became usual to declare in assumpsit, and not to state either the employment of the defendants as common carriers, or the custom of the realm as to their liability. This form of 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 custom (a). And more recently, where the declaration, which was in case, stated that the plaintiff delivered to the defendants, and they accepted and received from him goods to be conveyed for reasonable reward in that behalf, it was held, that after verdict the declaration might be read, as founded on the general custom of the realm (b). A declaration against a common carrier for refusing to carry goods averred that the plaintiff was ready and willing and offered to pay to the defendant such sum of money as the defendant was legally entitled to receive for the receipt, carriage and conveyance of the goods; it was held, that the declaration was good, and that it was not necessary to allege an actual tender of money for the carriage (c). The advantage resulting to the plaintiff from declaring in assumpsit previously to the passing of the Common Law Procedure Act was, that he might join the common counts with the special counts in assumpsit, if he had other and distinct causes of action to which they were applicable. The inconvenience was, that it let in a plea of abatement for want of joining all the parties, and excluded the right to join a count in trover. If the plaintiff was desirous of avoiding this inconvenience, he alleged his gravaman as consisting in a breach of duty arising out of an employment for hire, and treated that breach of duty as a tortious negligence. But by the Common Law Procedure Act, causes of action of (z) Herne's Plead. 76. Vid. Ent. 37, 38. (a) Per Lord Hardwicke, C. J., in Boucher v. Lawson, H. 9 Geo. II. B. R. Ca. Temp. Hardw. 199, "The custom of the realm is the law of the realm, and consequently it need not be set forth in the decla- (b) Pozzi v. Shipton, 8 Ad. & E. 974. 8 M. & W. 372. whatever kind, provided they be by and against the same parties, and in the same rights, may be joined in the same suit (d), and ample powers of amendment, in the case of non-joinder or misjoinder of defendants, are given by the same act (e). Declaring in tort, 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 (f). Trover will not lie against a common carrier for merely losing goods entrusted to his care, without any actual wrong (g). But trover will lie against a carrier who delivers goods to the wrong person (h); and where the owner of goods on board a vessel directed the captain not to land them on the wharf against which the vessel was moored, which the captain promised not to do, but afterwards delivered them to the wharfinger, conceiving that the wharfinger had a lien on the goods for wharfage dues; it was held, that the owner might maintain trover against the captain, who could not prove that any wharfage duty was due (i). Although goods are spoiled by the default of the master of the ship, yet the owners are liable in respect of the freight (k), if charged on the custom of the realm, or as usually carrying for hire, or upon an express undertaking but not otherwise (1). A ship was chartered to the commissioners of the navy as an armed vessel, who put on board a commander in the navy and a king's pilot, the master and crew being appointed and paid by the owners. In consequence of the improper execution of an order given by the commander, the chartered ship ran foul of another ship. It was held, that the owners of the chartered ship were liable for the injury which the other ship sustained; for the chartered ship, notwithstanding it had an officer on board, was, with regard to third persons, to be considered as the ship of the owners (m). Pleading under new Rules of Trin. T., 1853.-By the Common Law Procedure Act, sect. 74, it is enacted, "that any plea which shall be good in substance shall not be objectionable on the ground of its treating the declaration either as framed for a breach (d) 15 & 16 Vict. c. 76, s. 41. (e) Ibid. ss. 27-39. (f) Govett v. Rudnidge, B. R. 3 East, 62; Cooper v. South, 4 Taunt. 802; Bretherton v. Wood, 3 Brod. & B. 54; Pozzi v. Shipton, 8 A. & E. 963; and in actions of contract upon such a state of facts the variance is amendable under sect. 37 of the Common Law Procedure Act. (g) Ross v. Johnson, 5 Burr. 2825; Kirkman v. Hargreaves, (case from Lancaster Sum. Ass. 1800, before Graham, B.,) B. R. H. 41 G. III. MSS. S. P. (h) Per Kenyon, C. J., Youl v. Harbottle, Peake's N. P. C. 49, recognized in Devereux v. Barclay, 2 B. & A. 704; and (i) Syeds v. Hay, 4 T. R. 260. (1) Boucher v. Lawson, Ca. Temp. (m) Fletcher v. Braddick, 2 B. & P. N. 1 of contract or for a wrong.' ." But by the new pleading rules, Trin. T., 1853, the pleas of non assumpsit and not guilty put in issue different facts. These rules state, that "in actions against carriers and other bailees for not delivering or not keeping goods safe, or not returning them on request, the plea of non assumpsit will operate as a denial of any express or implied contract to the effect alleged in the declaration, but not of the breach" (n): but that "the plea of not guilty will operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant as carrier for hire, or of the purpose for which they were received." A declaration alleged that the defendants were common carriers, and received the goods in question to be carried by them as such common carriers for hire and reward. Plea traversing the averment that they received the goods as common carriers. It appeared that the defendants did not receive any goods to be carried by them, unless the consignor signed a paper containing various conditions (which the court thought were reasonable), subject to which they were to be carried. It was held, that the plea was proved (0). A plea, by way of traverse, that the defendants were not common carriers for hire, only puts in issue the fact of the defendants carrying passengers for hire, and not their liability as common carriers by the custom of England (p). All matters in confession and avoidance must be pleaded specially. Rules 8 and 17. Where the declaration was at common law, and the defendants pleaded under the Carriers Act, sect. 1, a replication that the loss of the goods was occasioned by the felonious acts of the servants of the defendants, was held good (q). VI. Evidence. Action against defendants as owners of a coach, for the loss of a parcel. To prove the ownership, on the part of the plaintiff, an entry in the book, kept at the proper office in Somerset House, stating the defendants to be licensed as owners of the coach, was produced; and it was contended, that as the entry was made in pursuance of stat. 25 Geo. III. c. 51, ss. 50, 51, it must be presumed to be accurate, and was at least primâ facie evidence; but Gibbs, C. J., rejected it, observing that the entry not being signed by the defendants, and nothing being shown to connect them with it, it was no evidence to prove them to be owners of the coach (r). The legislature has now made a cer (n) See Webb v. Page, 6 Scott's N. R. (p) Bennett v. Peninsular and Oriental 18 L. J., C. P. 85. (q) Metcalfe v. The Brighton Railway, 27 L. J., C. P. 205. (r) Strother v. Willan, 4 Campb. 24. See also Tinkler v. Walpole, 14 East, 226; S. P. as to register of a ship. tified copy of such register evidence of its contents (s). The inscription on a stage-coach of the name of the party is evidence, in an action against him, of ownership (t). A parcel, containing bank-notes, stamps, and a letter, was sent, by a common carrier, from one stamp distributor to another; it was held (u), in an action against the carrier, that the circumstance of the letter accompanying the stamps was prima facie evidence that it related to them, so as to bring the case within the proviso of the 42 Geo. III. c. 81, s. 6 (x), which enacts, "that the prohibition to send letters otherwise than by the post shall not extend to letters sent by any common carrier, with and for the purpose of being delivered with the goods that the letter concerns:" and that the defendant, not having proved the letter to relate to any other subject-matter, was liable for the value of the parcel. In an action on the case against a railway company for the loss of a passenger's luggage, it was held to be unnecessary to prove negligence, although the declaration alleged it (y). And where the passenger is a servant, it is sufficient to prove that his master paid his fare (2). In an action brought against the owner of a hack cab for such a loss, the allegation that the defendant promised to carry the plaintiff and his luggage "safely and securely," is proved by the employment of the defendant in the usual way; no express promise to carry on these terms is necessary to be proved (a). To sustain an action against the keeper of a booking-office for the loss of a parcel, it is not sufficient merely to show nondelivery of the goods to the consignee; and that it had not reached its destination. The office-keeper's duty is to deliver to a carrier: and some evidence must be given showing specifically a breach of that duty (b). By taking charge of a parcel at a booking-office, the office-keeper merely makes himself an agent to book for the stage-coaches; so that he sends the parcels to the proper coachoffice, and once delivers it there, he has discharged himself; he has nothing to do with the carriage of the goods (c). A parcel was delivered to a porter of a railway company at the station, to be forwarded from Gloucester to London, after the way-bill and the guards' parcel book had been made up. The parcel was placed by the porter in the usual receptacle, a locked box in the luggage van, (s) 6 & 7 Vict. c. 86, s 16. (1) Barford v. Nelson, 1 B. & Ad. 571. (u) Bennett v. Clough, 1 B. & A. 461. (x) Repealed by stat. 7 Will. IV. & 1 Vict. c. 32; stat. 7 Will. IV. & 1 Vict. c. 33, excepts from the exclusive privilege of the post office, "Letters concerning goods or merchandize sent by common known carriers, to be delivered with the goods which such letters concern, without hire or reward or other profit or advantage for receiving or delivering such letters." (y) Richards v. The London and South Coast Railway, 7 C. B. 839. (z) S. C. 18 L. J., C. P. 251. (b) Gilbart v. Dale, 5 A. & E. 543. See also Midland Railway v. Bromley, 17 C. B. 352; S. C. 25 L. J., C. P. 94. (c) Per Lord Abinger, C. B., in Muschamp v. Lancaster and Preston Junction Railway, 8 M. & W. 428, ante, p. 444. and entered by him on the way-bill, but the fact of his having so placed it in the box was not communicated to the guard. After several intermediate stoppages the train reached London, where the parcel was missed. It was held, that there was no evidence to go to the jury that the parcel had been stolen by a servant of the company (d). VII. Damages. In an action brought by the owners of a steam grist mill, against a carrier for delay in delivering the broken shaft of the mill to the plaintiff's engineer, who was thereby prevented from supplying a new shaft, it appeared at the trial that the broken shaft was to be sent to the engineer as a model for a new one, and at the time of the contract for the carriage being made, the carrier was informed that the mill was stopped, and that the shaft must be sent immediately. It further appeared that its delivery at its destination was delayed for several days, and that in consequence the plaintiffs did not receive the new shaft back as they expected, and their mill was kept idle. It was held, that the judge who presided at the trial should have directed the jury that they ought not to take into consideration, in estimating the damages, the loss of profit from not working the mill. Alderson, B., in delivering the judgment of the court, thus explained the principles upon which a jury ought to be guided in estimating the damage arising out of a breach of contract of this kind. "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract, should be either such as may fairly and reasonably be considered arising naturally, i. e. according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damage resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if those special circumstances were wholly unknown to the party making the contract, he at the most could only be supposed to have had in his contemplation the amount of injury which would arise generally, and, in the great multitude of cases, not affected by any special circumstances from such a breach of contract. For had the special (d) Marshall v. York, N. and B. Railway, 11 C. B. 655; S. C. 21 L. J., C. P. 34; Great Western Railway v. Rimell, 18 C. B. 575; S. C. 27 L. J., C. P. 201. |