the owner of the goods. In such a case the action may be brought either by the consignor or by the consignee(p). Thus, where a laundress, residing at Hammersmith, was in the habit of employing a carrier to convey the linen she washed from Hammersmith to the owner in London, and the carrier was paid by the laundress, it was held that the latter was entitled to maintain an action against the carrier for the loss of the goods by the way, athough they belonged to the consignee(9). In these cases, the bailee of the goods, who has a special property in them, may enforce the express contract entered into with the carrier, unless his principal interferes to prevent him. "The rule is, that either the bailor or the bailee may sue, and whichever first obtains damages it is a full satisfaction "(r).

Every person who has been injured by the negligent performance of the work of carrying may maintain an action for damages against the carrier, although the work was done under a special contract to which he is no party. A servant, for example, may maintain an action against a railway company, or other carrier, for injuries sustained by him from the negligent management of a train by which he was a passenger, or from the negligent execution of the work of carrying, although the contract for his conveyance was made, and the hire or fare paid, by his master, the duty of carrying carefully being a duty which arises independently of the contract(s). So, where a railway company was bound by statute to carry the mails, and the officers of the post-office who accompanied them, it was held that the company must exercise a reasonable care in performing the duty cast upon them by the statute, and were bound to carry safely; so that if any officer of the post-office was injured by the negligent management of their trains, he was entitled to maintain an action against them for damages, although the contract for his conveyance had been entered into between the company and the Postmaster-General(). 693 Parties to be made defendants.—When goods have been delivered to the driver of a stage-coach to be carried, and have been lost by the way, an action ex contractu for negligence should be brought against the coach-proprietor, and not the mere servant or agent(u). But as all who participate in a wrongful act are responsible ex delicto for the inju

(p) Davis v. James, 5 Burr. 2680. Bell v. Chaplain, Hard. 321. Moore v. Wilson, 1 T. R. 659. Dunlop v. Lambert, 6 Cl. & Fin. 600.

(g) Freeman v. Birch, 1 N. & M. 420.

(r) Nicolls v. Bastard, 2 C. M. & R. 660.

(s) Marshall v. York, Newcastle, and Berwick Rail. Co., 11 C. B. 655.

(t) Collett v. Lond. & North-Western Rail. Co., 16 Q. B. 989.

(u) Williams v. Cranston, 2 Stark. 82.

rious consequences of it, the servant may be sued for the breach of duty as well as the master or the employer. The 8th section of the Carriers Act (ante, pp. 582-3) provides that the Act shall not protect the coachman, guard, book-keeper, or other servants of the common carrier from liability for losses or injuries occasioned by their own personal neglect or misconduct.

Every railway company is responsible for the detention or conversion, by its officers and servants, of the property which has come into the hands of such servants and agents in the course of their employment in the business of the company. There must be some one authorized on the part of the company at every station to receive and deliver out goods, and to do things promptly that require immediate attention, and whoever is permitted by the company to have dominion over their stations, and to exercise authority over their property, and over their porters and servants, will be presumed to be clothed with the necessary authority, and his acts, done within the scope of his ordinary employment, will be binding on the company. Thus, where some young quicks were forwarded by railway to the plaintiff, and the general superintendent of the company, at the request of the plaintiff, in order to keep the quicks alive, permitted them to be put into the company's ground at the railway station, where they remained under the control and charge of the superintendent, and the latter subsequently refused to deliver them up to the plaintiff, it was held that the railway company was responsible for the unlawful detention. of the property by their servant(x).

The common carrier cannot qualify or limit his liability in respect of the negligence, want of skill, or carelessness of his servants and agents, in and about the carrying of the goods, by any private arrangement as to remuneration out of the profits of the business or otherwise, between himself and such servants or agents. "If a common carrier should allow his driver of the carriages some small things as perquisites, the master would, without all doubt, be still liable; and that is only a private agreement between master and servant, and only a different way of paying his servant's wages "(y).

When goods have been delivered to a railway company, to be carried to a particular destination beyond the limits of their own line of railway, and the goods are lost by the negligence of the servants employed upon an intermediate line, the railway company to whom the

(x) Taff Vale Rail. Co. v. Giles, 23 Law J., Q. B. 43.

(y) Page, J., Cas. temp. Hard. 90. And see Hyde v. Trent & Mersey Nav. Co., 5 T. R. 397.

goods were first delivered, and with whom the contract for their conveyance was made, is the proper party to be sued for the loss, and not the company on whose line the loss actually took place(z). But every railway company which allows its railway to remain open for public traffic, and takes toll for the use of it by other lines, is responsible to persons who sustain injury from the line being unsafe and dangerous, although such persons are conveyed along it in the carriages of some other company(a). See ante, p. 219. 694 Declarations against a common carrier for refusing to carry should show that the defendant is a common carrier of goods plying for hire between the place where the goods were tendered to him for conveyance and the place to which they were addressed; that the plaintiff tendered to the defendant certain goods to be carried from the one place to the other; that the defendant had room and means of receiving and carrying them, and the plaintiffs were ready and willing to pay him his customary hire, yet the defendant would not receive and carry the goods, whereby the plaintiffs were put to great loss and inconvenience, setting forth any special damage that may have been sustained, and concluding with a claim for damages(b).

695 Declarations against an innkeeper for the loss of chattels deposited within the precincts of the inn need not set out the general custom of the realm making the innkeeper responsible for the safety of the goods of his guests, as the general custom is part of the common law(c), and need not be proved at the trial; but the declaration should allege that the defendant kept a common inn for the reception, lodging and entertainment of travellers, that the plaintiff being a traveller came to the said common inn of the defendant, and was received and lodged therein, and that the plaintiff brought into the said common inn certain articles (describing them), and that the defendant, whilst the plaintiff abided in the said common inn as a guest, and the said articles remained within the inn, did not keep the said articles, etc., safely, but so negligently conducted himself in the matter, that they were through the negligence of the defendant taken and carried away, and have become wholly lost to the plaintiff; concluding with a claim of damages(d).

696 Plea of not guilty.-The plea of not guilty in actions for negligence

(2) Mytton v. Mid. Rail. Co., 4 H. & N. 621; 28 Law J., Exch. 385. See ante, pp. 595-6. (a) Birkett v. Whitehaven, etc., Rail. Co., 4 H. & N. 738.

(b) Pickford v. Grand Junction Rail. Co., 8 M. & W. 372.

(c) Dale v. Hall, 1 Wils. 281.

(d) Jones v. Tyler, 1 Ad. & E. 522.

operates as we have seen, as a denial only of the wrongful act alleged to have been committed by the defendant, and no defence other than such denial is admissible under that plea. Thus, in actions against a carrier for loss of, or damage to, goods, 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 a carrier for hire, or of the purpose for which they were received, or of the plaintiff's property in the goods(e).

697 Special pleas.-If, therefore, the defendant denies the receipt of the goods to be conveyed by him as a common carrier, or denies his receipt of them altogether, he must, by special plea or traverse, allege that he did not receive the goods to be carried as in the declaration mentioned. If the plaintiff has declared against him upon his liability as a common carrier, insuring the safe conveyance of the things he carries, and it appears that the things were delivered to him under a special contract, the cause of action will be disproved under this plea or traverse(ƒ). If he denies the plaintiff's title or right to the possession of the property, he must plead a plea alleging that the property was not, at the time he received it to be carried, the property of the plaintiff(g); or, admitting that the plaintiff was the owner of the property at the time it was delivered to him, he may show that the plaintiff's right to the possession of it ceased, or had been determined, and that some third party had, since the bailment, become entitled to the property, and had demanded it of the defendant(h).

If the defendant relies upon the Common Carriers Act, he must by his plea show that the articles delivered to him for conveyance were of the description mentioned in the statute, and that at the time of the delivery of them to him to be carried, the value and nature of the goods were not declared by the plaintiff(i). 698 Evidence at the trial-Proof of the bailment.—To charge the common carrier for the loss of goods, however occasioned, it must of course be shown that the goods were either actually or constructively bailed to him or his servants to be carried. They must either have been delivered into his hands or into the hands of his servant or agent, or some

(e) Reg. Gen. Hil. Term, 16 Vict; 1 Ell. & Bl. App. lxxxi., lxxxii.

(f) White v. Gt. Western Rail. Co., 2 C. B., N. S. 7.

(g) Ante, pp. 450-1. Cheesman v. Exall, 6 Exch. 341.

(h) Sheridan v. New Quay Co., 4 C. B., N. S., 618. Europ. and Austral. R. M. Co. v. R. M. St. P. Co., 30 Law J., C. P. 247.

(i) Pianciani v. London and South-Western Rail. Co., 18 C. B. 229. Hart v. Baxendale, 6 Exch. 789; 21 L. J., Exch. 123.

person authorized by him to receive them(). If they were merely deposited in the yard of an inn, or upon a wharf to which the carrier resorts, or were. placed in his cart, vessel, or carriage, without his knowledge and acceptance, or that of his servants or agents, there has of course been no bailment or delivery of the goods to him(k), and he cannot consequently be made responsible for the loss of them. If the common carrier's servant has been induced by the consignor to depart from the usual course of dealing, and to receive goods which he was not bound to receive and carry, under circumstances of hazard known to the consignor, but not disclosed to the carrier's servant, or on terms different from those on which alone he was authorized to receive them, the carrier will either not be responsible for the loss of the goods, as never having been delivered to him, or, at all events, not on his common-law liability of an insurer(). If the consignor has made a private bargain with the driver of the cart or coach of the common carrier for the conveyance of a parcel for a gratuity which was not intended by the parties to find its way into the pocket of the carrier, there has been then no bailment to the latter, and he is not consequently liable in case the parcel is lost. The bailment in such a case is a bailment to the driver alone, and he alone is responsible for the loss(m).

If the plaintiff has merely hired the cart or carriage of the common carrier, and has sent his own servants with the goods to take charge of them, and there has been no actual delivery or bailment of the goods to the carrier, the latter is not responsible for their safety(n). If a passenger travelling on the outside of a stage-coach has kept a parcel or package in his own hands, and under his own care, or taken it with him into the interior of the vehicle, without the knowledge of the carrier or his servants, and the thing is lost, the carrier is not responsible for the loss, as the article was never delivered to him or to his servants, or in any way intrusted to his or their keeping(nn). But if the thing has been tendered to the carrier for conveyance, and the latter

Grosvenor v. New
Wells v. Wilming

(i) Michigan Southern, etc., R. R. Co. v. McDonough, 21 Mich. 165. York Central R. R. Co., 39 N. Y. 34. Trowbridge v. Chapin, 23 Conn. 595. ton, etc., R. R. Co., 6 Jones' Law (N. C.), 47. Blanchard v. Isaacs, 3 Barb. (N. Y.) 388. Cronkite v. Wells, 32 N. Y. 247.

1

(k) See Packard v. Getman, 6 Cow. 757; Selway v. Holloway, 1 Ld. Raym. 46; Backman ↑ Levi, 3 Campb. 414. Lovett v. Hobbs, 2 Show. 128. (1) Edwards v. Sherratt, 1 East, 604.

Slim v. Gt. Northern Rail. Co., 23 Law J., C. P. 16 (m) Butler v. Basing, 2 C. & P. 613. Bignold v. Waterhouse, 1 M. & S. 259. Middleton Fowler, 1 Salk. 282. See Blanchard v. Isaacs, 3 Barb. (N. Y.) 388.

(n) East India Co. v. Pullen, 2 Str. 690.

(nn) First National Bank of Greenfield v. Marietta & Cincinnati R. R. Co., 20 Ohio St. 259.