The Railways Regulation Act, 1871, s. 12, extends the provisions of the Railways Regulation Act, 1868, s. 16, to a company under a contract to procure the carriage of goods by sea in vessels not belonging to the company (Doolan v. Midland Ry. Co., 2 App. C. 792).

17 & 18 Vict.

c. 31, s. 7.

But whether the company carries in its own vessels or in the vessels of agents, Merchant the total liability is restricted to an amount measured by the tonnage of the ship, Shipping Act. according to the provisions of the Merchant Shipping Act (L. & S. W. Ry. Co. v. James, 8 Ch. 241. See Doolan v. Midland Ry. Co., 2 App. C. 792, 809).

Under this section, special conditions exonerating the company from liability for Conditions negligence, though just and reasonable, are not binding upon the owner of the must be goods unless signed by him; and, on the other hand, special conditions, though reasonable signed by the owner of the goods, are not binding they are not just and reason- and signed. able (Peek v. North Staffordshire Ry. Co., 10 H. L. 473).

(a) The words "horses, cattle, or other animal" are not cut down by the sub- Dog. sequent proviso, therefore a dog is within the section (Harrison v. London & Brighton

Ry. Co., 2 B. & S. 122, 149; Dickson v. G. N. Ry. Co., 18 Q. B. D. 176).

(b) Passengers' luggage is within this section, whether carried with the passenger Passengers' or placed in the van (Cohen v. S. E. Ry. Co., 2 Ex. D. 253; Bunch v. G. W. Ry. luggage. Co., 17 Q. B. D. 215, overruling Stewart v. L. & N. W. Ry. Co., 3 H. & C. 135. See

Cutler v. N. London Ry. Co., 19 Q. B. D. 64).

Where there is a provision that the company shall carry the luggage of passen- Charge for gers free of charge, a condition imposing a payment for luggage upon passengers luggage. who travel by a cheaper ticket than the ordinary ticket, is valid (Rumney v. N. E.

Ry. Co., 32 L. J. C. P. 244; 14 C. B. N. S. 641).

(c) The term "servants " includes agents whom the company employ to do what Servants. they have contracted to do (Doolan v. Midland Ry. Co., 2 App. C. 726).

(d) Where a bond fide option is offered by the company to carry at a reasonable Option given. price with the ordinary carrier's liability, or to carry at a cheaper rate on special terms, it would seem that the special terms could not be considered unreasonable (see Simons v. Gt. W. Ry. Co., 18 C. B. 805; Gallagher v. Gt. W. Ry. Co., I. R. 8 C. L. 326; Lewis v. Gt. W. Ry. Co., 3 Q. B. D. 195; McNally v. Lanc. & York. Ry. Co., 8 L. R. Ir. 81).

At any rate, in such a case the company may by a contract at the lower rate Wilful misexempt themselves from liability for loss, damage, or delay, unless caused by wilful conduct. misconduct (Glenister v. Gt. W. Ry. Co., 29 L. T. N. S. 423; 22 W. R. 72; Harris

v. Midland Ry. Co., 25 W. R. 63; Lewis v. Gt. W. Ry. Co., Q. B. D. 195; Gt. W. Ry. Co. v. McCarthy, 12 App. C. 218).

And it seems the company might, by a proper contract, protect themselves against the consequences of wilful misconduct on the part of their servants (Lewis v. Gt. W. Ry. Co., 3 Q. B. D. 195, p. 205; see Manchester, Sheffield & Line. Ry. Co. v. Brown, 8 App. C. 703; Ronan v. Midl. Ry. Co., 14 L. R. Ir. 157).

The higher rate need not be notified in the manner in which tolls are to be notified under section 93 of the Railways Clauses Act, 1845 (Gt. W. Ry. Co. v. McCarthy, 12 App. C. 218).

The offer to carry at a higher rate with the ordinary common law liability may Whether be qualified by conditions provided such conditions are not unreasonable (M'Nally carriage at v. Lanc. & York. Ry. Co., 8 L. R. Ir. 81; Moore v. G. N. Ry. Co., 10 L. R. Ir. 95, higher rate G. W. Ry. Co. v. McCarthy, 12 App. C. 218).

may be subThus, a condition that the company will not be liable for injuries caused by fear ject to conor restiveness of animals, and a limit of liability as regards amount, the amounts ditions. being those specified in the section, and a provision that the company do not admit liability in the case of animals able to walk from the truck, have been held not to invalidate the alternative offer (Moore v. G. N. Ry. Co., 10 L. R. Ir. 95; G. W. Ry. Co. v. McCarthy, 12 App. C. 218).

It lies upon the company to show that the contract is reasonable; and if it is to Onus of proof be upheld as reasonable because a reasonable alternative offer was made, the company that contract must prove this (Ruddy v. Mid. G. W. Ry. Co., 8 L. R. Ir. 224). reasonable. Where the higher rate is within the parliamentary limit, it will be assumed to be What is a fair reasonable unless shown to be prohibitory or excessive. The fact that traders option. invariably adopt the lower rate is no evidence that the higher is unreasonable (Foreman v. Gt. W. Ry. Co., 38 L. T. N. S. 851; Gallagher v. Gt. W. Ry. Co., I. R. 8 C L. 326; see Manchester, Sheffield & Linc. Ry. Co. v. Brown, 8 App. C. 703; McCarthy v. Gt. W. Ry. Co., 12 App. C. 218).

Where the special contract offers an option to carry at the company's risk at a higher rate, which is within the parliamentary limit and is posted up in the office, there is evidence that the option was offered (Foreman v. Gt. W. Ry. Co., 38 L. T. N. S. 851).

Where the higher charge is not in terms authorised by statute, though there is nothing prohibiting it, it lies upon the company to show that it is reasonable (Harrison v. London & Brighton Ry. Co., 2 B. & S. 122; 31 L. J. Q. B. 122).

17 & 18 Vict. c. 31, s. 7.

No option.

Offer of free pass.

Damage to be shown at time of unloading.

If the company offer to undertake the ordinary carrier's liability at a price they are not entitled to charge, or to carry at a lower price free from liability, the alternative offered is not reasonable (Peek v. N. Staffordshire Ry. Co., 10 H. L. 473; 32 L. J. Q. B. 241).

Similarly if the offer to carry at the higher rate is made subject to a condition which is unreasonable, no fair option can be said to be given (Lloyd v. Waterford & Limerick Ry. Co., 15 Ir. C. L. 37).

Where no fair option is given, it is clear that conditions exempting the company from liability for neglect or default are unreasonable and void (M'Manus v. Lancashire & Yorkshire Ry. Co., 4 H. & N. 327 ; Allday v. Gt. W. Ry. Co., 5 B. & S. 903; Peek v. N. Staffordshire Ry. Co., 10 H. L. 473; Gregory v. West Midland Ry. Co., 2 H. & C. 914; 33 L. J. Ex. 155; Doolan v. Midland Ry. Co., 2 App. C. 792; overruling so far as contra, Wise v. Gt. W. Ry. Co., 1 H. & N. 63; Pardington v. S. W. Ry. Co., 1 H. & N. 392).

A condition exonerating the company from liability for negligence in carrying cattle is invalid, though there may be a subsequent condition offering a free pass to induce the owner to send a drover in charge, and the free pass is accepted (Rooth v. N. E. Ry. Co., L. R. 2 Ex. 173).

A condition that the company will not be liable for damage to cattle unless the damage is pointed out at the time of unloading is unreasonable where there is no option (Lloyd v. Waterford & Limerick Ry. Co., 15 Ir. C. L. 37).

A condition that the company will not be liable for loss or damage to any horse above the value of 407., or any dog above the value of 57., unless a declaration of value is signed by the owner, and requiring a percentage of 6d. in the pound to be paid upon the declared value over 401. or 51. was held reasonable in Harrison v. London & Brighton Ry. Co., 2 B. & S. 122; 31 L. J. Q. B. 113; but that case has been overruled by Ashendon v. L. B. & S. C. Ry. Co., 5 Ex. D. 190).

Loss from A condition that the company will not be responsible for loss of animals from overcrowding. overcrowding is unreasonable (Corrigan v. G. N., &c. Ry. Cos., 6 L. R. Ir. 91).

Conditions held reason

able though no option. Loss of market. Claim for damages within seven days.

Risk of loading and unloading.

Receiving and delivering.

Declaration of value.

Signature by servant.

A condition that the company will not be accountable for the correct selection of the owner's cattle is unreasonable (M‘Nally v. Lane. & York. Ry. Co., 8 L. R. Ir. 81). On the other hand, the following conditions have been held reasonable, though there was no option:

A condition exonerating the company from the consequences of loss of market (Beal v. S. Devon Ry. Co., 29 L. J. Ex. 441; 5 H. & N. 875; 3 H. & C. 337; 12 W. R. 1115; Lord v. Midland Ry. Co., L. R. 2 C. P. 339. See White v. Gt. W. Ry. Co., 26 L. J. C. P. 168).

A condition requiring claims for loss to be made within seven days after the goods are delivered (Lewis v. Gt. W. Ry. Co., 5 H. & N. 867. See Simons v. Gt. W. Ry. Co., 18 C. B. 805).

Probably such a condition relates only to inanimate goods. Moreover, as it relates to something after delivery, it may be a question whether it is within the section which relates to conditions with respect to the receiving, forwarding and delivering (Moore v. G. N. Ry. Co., 10 L. R. Ir. 95).

Possibly a condition throwing upon the owner the risk of loading and unloading might be considered reasonable (see Rooth v. N. E. Ry. Co., L. R. 2 Ex. 173, p. 179). There seems to be no reason to doubt that conditions may be good in part and bad in part, notwithstanding the dicta in Kirby v. Gt. W. Ry. Co., 18 L. T. N. S. 658 (see Simons v. Gt. W. Ry. Co., 18 C. B. 805; 25 L. J. C. P. 25; M'Cance v. L. & N. W. Ry. Co., 31 L. J. Ex. 65, 70; 7 H. & N. 477).

(e) The proviso applies not only to the risks of carriage and conveyance, but also to those attending the receiving and delivery.

Therefore the owner of a horse injured through the negligence of the company while in course of delivery to the company for carriage, and before booking, can only recover 507. if no declaration of value has been made (Hodgman v. West Midland Ry. Co., 33 L. J. Q. B. 233; 35 ib. 85; 5 B. & S. 173; and see Hill v. L. § N. W ́. Ry. Co., W. N., 8 May, 1880, p. 84).

(f) The declaration of value under this section must be such as to convey a distinct intimation that the sender intends to hold the company responsible for the higher sum. If there is no such declaration, the company cannot demand insurance money beyond the usual charge, on the ground that a servant of the company has been casually informed what the animal is worth (Robinson v. L. & S. W. Ry. Co., 19 C. B. N. S. 51; 34 L. J. C. P. 234).

It seems a person signing a declaration that his horse is worth only 107., and agreeing that it shall be carried at his own risk, cannot recover more than the 107. if the horse is damaged (M'Cance v. L. & N. W. Ry. Co., 7 H. & N. 477; 3 H. & C. 343).

(g) A person who can read and sends a servant who cannot read to sign the contract note, is in the same position as if he had signed, the note himself (Kirby

v. Gt. W. Ry. Co., 18 L. T. N. S. 658; Foreman v. Gt. W. Ry. Co., 38 L. T. N. S. 851).

17 & 18 Vict. c. 31, s. 8.

The signature of a railway agent employed by the consignor to deliver, and by the company to receive goods, is sufficient to bind the sender (Aldridge v. Gt. W. Ry. Railway Co., 15 C. B. N. S. 582).

agent may The contract, if not signed by the owner, is void only as against him; it is sign. binding upon the company (Baxendale v. Gt. E. Ry. Co., L. R. 4 Q. B. 244; 35 Contract not L. J. Q. B. 137). signed.

A contract exonerating a carrier from certain losses to which he would be liable Construction as an insurer will not prima facie exonerate him from liability for those losses, if of particular they arise from his own negligence.

contracts.

Thus a condition that the company accept no responsibility will not excuse them from the consequences of their own negligence (Martin v. Gt. Indian Peninsular "The comRy. Co., L. R. 3 Ex. 9). pany accept A condition exonerating the company from liability for damage occasioned by no responkicking, plunging, or restiveness, does not exonerate the company if the restiveness sibility." is caused by their negligence (Gill v. Manchester Ry. Co., L. R. 8 Q. B. 186; Moore Restiveness. v. G. N. Ry. Co., 10 L. R. Ir. 95).

A condition exempting the company "from all liability for loss or damage by Negligence. delay in transit, or from whatever other cause arising," relieves the company from liability for the negligence of their own servants (Manchester, Sheffield & Line. Ry. Co.

v. Brown, 8 App. C. 703).

A condition that the company shall not be liable in respect of any detention does Detention. not relieve the company from liability where animals were detained in the erroneous belief that the carriage had not been paid (Gordon v. G. W. Ry. Co., 8 Q. B. D. 44). Where the owner undertakes all risks of conveyance whatever, the company are not liable for damage to cattle caused because the trucks are unfit and unsafe (Chip- undertakes all pendale v. Lancashire & Yorkshire Ry. Co., 21 L. J. Q. B. 22).

And such a condition will exempt the company from liability for gross negligence (Carr v. Lancashire and Yorkshire Ry. Co., 7 Ex. 707).

"Owner

risks."

A contract to carry goods "at the owner's risk" exempts the company from the Goods "at ordinary risks incurred by goods going along the railway, but not from liability for owner's negligence, such as delay in delivery (Robinson v. Gt. W. Ry. Co., 35 L. J. C. P. 123; risk." H. & R. 97; D'Arc v L. & N. W. Ry. Co., L. R. 9 Q. B. 325; Goldsmith v. G. E.

Ry. Co., 44 L. T. 181; 29 W. R. 651).

On the other hand, if the owner has notice that the company carry at a lower rate Course of "where the sender relieves them from all liability of loss, damage, or delay," unless dealing. caused by wilful misconduct, a contract to carry at the lower rate at the owner's risk must be interpreted by the sender's knowledge of its meaning, and will exonerate the company from liability for negligence (Lewis v. Gt. W. Ry. Co., 3 Q. B. D. 195).

Wilful misconduct exists where a person does an act from which he knows that Wilful mismischief will result, or an act likely to be mischievous, but with an indifference to conduct. his duty to ascertain whether it was mischievous or not (Lewis v. Gt. W. Ry. Co, 3 Q. B. D. 195, p. 206).

Exception of accidents from any fault, negligence, or mistake of the servants of the company does not except wilful misconduct (Ronan v. Midl. Ry. Co., 14 L. R. Ir. 157).

Mere misdelivery does not amount to wilful misconduct (Stevens v. G. W'. Ry. Co., 52 L. T. 324).

But where goods have been refused by the consignee, and are delivered without further inquiry to a person having a name resembling that of the consignee, there is wilful misconduct (Hoare v. Gt. W. Ry. Co., 25 W. R. 631; 37 L. T. 186).

Negligence in loading or unloading goods, for instance, loading a truck or a van so that it is too high to pass under the bridges of a second company, or placing horse rakes on trucks shorter than the rakes, without covering, does not in itself constitute wilful misconduct (Webb v. Gt. W. Ry. Co, 26 W. R. 111; Haynes v. Gt. W. Ry. Co., 41 L. T. N. S. 436. See, too, Gt. W. Ry. Co. v. Glenister, 22 W. R. 72; Jarman v. Gt. W. Ry. Co., 22 W. R. 73, note).

8. This Act may be cited for all purposes as "The Railway and Short title. Canal Traffic Act, 1854."

c. 82, s. 13.

COURT OF CHANCERY OF LANCASTER
ACT, 1854.

17 & 18 VICT. c. 82.

17 & 18 Vict. An Act further to improve the Administration of Justice in the Court of Chancery of the County Palatine of Lancaster.

[7th August, 1854.]

13. AND whereas by the twelfth section of the said Act of the thirteenth and fourteenth years of the Queen, chapter forty-three, it was enacted that all monies payable in respect of lands situate within the county palatine, and which are authorised to be paid into or deposited in the Bank of England to the account of the Accountant General of the High Court of Chancery, under and by virtue of the Lands Clauses Consolidation Act, 1845, or any local or special Act passed or to be passed incorporating the provisions of the said last-mentioned Act, or otherwise authorising the taking or using of lands situate in the said county palatine, and also that all monies and securities held by any party who might be sued in the Court of Chancery of the said county palatine in respect thereof, and which, under and by virtue of an Act made and passed in the parliament held in the tenth and eleventh years of the reign of her present majesty, intituled "An Act for better securing trust funds, and for the relief of trustees," might be in like manner paid or transferred into or deposited in the Bank of England to the account of the said Accountant General, might, from and after the passing of the said Act now in recital, be in like manner paid or transferred into or deposited in the Bank of England, to the joint account of the clerk of the council of the duchy of Lancaster and of the registrar and comptroller of the said county palatine Court, in the matter in respect whereof such payment, transfer, or deposit should be made, and that the receipt of one of the cashiers of the said bank should be a full discharge to the person paying or transferring or depositing the same, and that such monies and securities, and all costs of application in respect thereof should be dealt with by the said Court of Chancery of the county palatine in the same manner as the same might be dealt with by the High Court of Chancery, or by the Lord High Chancellor or any of the judges of the said High Court, if such monies or securities had been paid or transferred into or deposited in the Bank of England to the credit of the Accountant General of that Court, and the lands in respect of

c. 82, s. 13.

which such payment, transfer, or deposit should be made might be 17 & 18 Vict. dealt with in the same manner as if it had been made in manner prescribed by the Lands Clauses Consolidation Act: And whereas since the passing of the said recited Act, the said county palatine has been divided into districts, and registrars and comptrollers have been appointed for such districts respectively: Be it enacted, that any monies and securities to be paid or transferred or deposited under the said recited provision may be so paid or transferred into or deposited with some one or other of the branches of the Bank of England within the said county palatine, to the joint account of the clerk of the council of the duchy of Lancaster and the registrar and comptroller of the district within which such branch bank is so situate, and the receipt of the manager, or agent, or cashier of such branch bank shall be a full discharge to the person paying or transferring or depositing the same, and such payment, transfer, or deposit shall have the same force and effect as any payment, transfer, or deposit made under the said recited provision would have had Provided always, that no monies shall be so paid or deposited under or by virtue of the Lands Clauses Consolidation Act, 1845, or any local or special Act as aforesaid, in case the party who would have been entitled to the rents and profits of the lands in respect of which such monies shall be payable, or his or her guardian or committee in case of infancy or lunacy, shall at any time before such payment or deposit serve or cause to be served a notice in writing at the office of the company taking the lands, requesting them not to make the payment or deposit.

T.

EE