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 holden, 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. 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 conveyance, (the owner not paying the defendant any thing for the warehouse-room,) and were consumed by an accidental fire there, it was holden, that the defendant was not liable. And it has been holden, that a carrier may exclude all responsibility for a loss by fire, by a notice to that effect".

If a common carrier be robbed of the goods", he shall answer the value of them; for having his hire, there is an implied undertaking for the safe custody and delivery. Where a person undertakes to carry goods safely and securely, he will be responsible for the damage they sustain in the carriage through his neglect, though he is not a common carrier, nor has any reward for his labour (7); and this rule holds,

1 Garside v. Trent and Mersey Navigation, 4 T. R. 581.

m Maving v. Todd, 1 Stark. N. P. C. 72.

n 1 Inst. 89. a. Woodleife v. Curties,

1 Rol. Abr. 2. (C) pl. 4. S. P. Coving. ton v. Willan, Gow's N. P. C. 115. o Coggs v. Bernard, Lord Raym. 909.

(7) In a special action on the case, wherein the plaintiff declared that, whereas the defendant had undertaken to carry a hare for the plaintiff from A. to B., yet the defendant carried the same so negligently, that he lost it by the way, to the damage of the plaintiff of 10. On demurrer to the declaration, it was objected by Hawkins, Sergeant, that the plaintiff had not declared, on the general custom of the realm relating to carriers, and, therefore, the defendant must be taken to be a private person; if so, there was not any consideration laid, and consequently the promise was merely nudum pactum. 2ndly. The plaintiff had not set forth a delivery of the hare, upon which the promise was made, and for the breach of which promise the action was brought. Probyn and Reynolds, (the only judges in court,) as to the first objection, admitted that the defendant must be taken to be a private person; but it was determined in Coggs v. Bernard, that a private person was answerable, if he undertook the carriage of goods, for a misfeasance, though there was not any consideration and the only difference was, that a common carrier was obliged to undertake the carriage of goods, and a private person was

although the plaintiff, for greater caution, sends his servant with the goods, who pays a person for guarding them, because he apprehends danger of their being stolen P.

Coach-owners are not liable for injuries which passengers may sustain from inevitable accidents, as from the oversetting of the coach from the horses taking fright, there not being any negligence in the driver; but otherwise it is, if there be negligence in the driver. See the duty of coach-owners fully explained by Best, C. J. in Crofts v. Waterhouse, 3 Bingh. 321. The proprietors of a mail-coach are answerable for an injury sustained by a passenger, through the misconduct of their driver. White v. Boulton, Peake's N. P. C. 81. A., a stable-keeper, let to B. four horses to draw B.'s carriage from C. to D. The horses were rode by A.'s servants. Through their negligence, the carriage of I. S. sustained an injury. It was holden that I. S. might maintain an action against A. Sammell v. Wright, 5 Esp. N. P. C. 268.

II. Of Notices given by common Carriers for the Purpose of limiting their Responsibility, and the Manner in which such Notices have been construed.

THE general responsibility of common carriers under all circumstances, except those before mentioned, has induced them to make special contracts for the carriage of goods beyond a certain value, and to require a premium in proportion to the risk. In this case, if the premium is not paid, the carrier will not be answerable (S.) That the public may be in

p Robinson v. Dunmore, 2 Bos. and Pul. 416.

q Aston v. Heaven, 2 Esp. N. P. C. 533.

not; but if a private person voluntarily undertook it, he was by law answerable for damage arising from his negligence. As to the second objection, the court said, that the delivery was implied; for it was stated, that the defendant had carried the hare part of the way, which he could not have done without a delivery; and as for the breach of promise, the action was not brought for that, but for the loss of the hare; the promise was only inducement. Accordingly they gave judgment for the plaintiff. Hutton v. Osborne, B. R. M. 3 G. 2. MSS.

(8) A bag sealed was delivered to a carrier, and said to contain

formed of the nature of these special undertakings, it is usual for carriers, either to insert in the newspapers, or to distribute hand-bills, or to place in a conspicuous situation in the office, or other place appointed for the reception of the goods, an advertisement in the form following: "Take notice that the proprietors of coaches, &c. transacting business at this office, will not be accountable for any passenger's luggage, money, plate, jewels, watches, writings, goods, or any package whatever, (if lost or damaged,) above the value of 51. unless insured and paid for at the time of delivery.” (9)

The validity of these general notices was questioned in a modern case', and it was insisted, that they were contrary to the policy of the common law; and that it was the duty of the carriers, if the reward was not adequate to the risk, to make special acceptances of the goods in such case, at a rate proportioned to the value of the goods. But by Lord Ellenborough, C. J. (who delivered the judgment of the court,) considering the length of time during which, and the extent and universality in which the practice of making such special acceptances of goods for carriage by land and water has now prevailed in this kingdom, under the observation and with the allowance of courts of justice, and with the sanction

66

r Nicholson v. Willan, 5 East, 507. See also Lyon v. Mills, 5 East, 423, where the same point was made, but the court did not give any opinion upon it.

£200, and the carrier gave a receipt for so much, when in fact it contained £400: the carrier was robbed: it was ruled by Holt, C. J. that he should be answerable only for £200, for his reward extended no further. Tyly v. Morrice, Carth. 485. If a box is delivered to a carrier generally, and he accepts it so, he is answerable, though the party did not inform him that there was money in it; but if the carrier asks, and the owner says, there is not any money, or if the carrier accepts it conditionally provided there is not any money in it, it was holden by King, C. J. that the carrier was not liable in either of these cases. C. B. Titchburn v. White, London Sittings, Str. 145. See post. n. (11).

(9) The terms of these notices vary. The provisions of some are of such a nature as to go in discharge of the liability of the carrier entirely, unless the terms of the notice are complied with (see a notice of this kind in Clay v. Willan, 1 H. Bl. 298.); others limit the responsibility of the carrier to a certain sum, if the conditions are not complied with. (See this kind of notice in Clarke v. Gray, 6 East's R. 564.) Under the term "loss" in these notices, a loss by robbery is comprehended. Covington v. Willan, Gow's N. P. C. 115. Dallas, C. J.

also and countenance of the legislature itself, which is known to have rejected a bill brought in for the purpose of narrowing the carrier's responsibility in certain cases, on the ground of such a measure having been unnecessary, inasmuch as the carriers were deemed fully competent to limit their own responsibility; considering also, that there is no case in the books, in which the right of a carrier thus to limit, by special contract, his own responsibility, has ever been by express decision denied; we cannot do otherwise than sustain such right in the present instance, however liable to abuse and productive of inconvenience it may be; leaving to the legislature (if it shall think fit,) to apply such remedy hereafter as the evil may require."

The following cases will illustrate the manner in which these notices have been construed. The defendants, who were proprietors of a coach', gave notice, " that cash, plate, jewels, writings, or any such kind of valuable articles, would not be accounted for, if lost, of more than 57. value, unless entered as such, and a penny insurance paid for each pound value." The plaintiff sent a parcel, consisting of light guineas to go by the defendant's coach: but the person who was employed by the plaintiff to deliver the parcel, although acquainted with the terms on which the defendants carried valuables, paid two shillings only for the parcel, and twopence for the booking. On the part of the plaintiff, it was insisted, that he was entitled to recover as far as 57. by the terms of the notice: but the court were of opinion, that the fair construction of the notice was, that the defendants were not liable to any extent (10). So where the defendants had given notice, that they would not be accountable for any parcels, &c. of more value than 57. unless entered as such, and paid for accordingly; it was holden, that the owner of a parcel above the value of 57. (which had been delivered to the defendants, and lost, but which had not been entered and paid for according to the value,) was not entitled to recover any thing. A parcel above the value of 51." was delivered to the defendants, (who were proprietors of the mail, and of a heavy coach travelling the same road,) and accepted by them to be conveyed by the mail. Notwithstanding this acceptance, the parcel was booked to go by the heavy coach. The parcel

s Clay v. Willan, 1 H. Bl. 293.

t Izett v. Mountain, 4 East, 371.

u Nicholson v. Willan, 5 East, 507.

(10) Pigott v. Dunn, B. R. E. 36 G. 3. S. P. cited by Lawrence, J. in Yate v. Willan, 2 East's R. 134.

was lost, but it did not appear in what manner. At the trial it was proved that the owner had notice of an advertisement placed in the coach-office, in terms the same as that which is set forth in p. 402 of this work. The parcel in question had not been booked and paid for according to the terms of the notice. On the part of the owner of the parcel it was insisted, that the loss had not been incurred in the course of the defendants' employment as carriers, but had been occasioned by an act of tortious conversion, in direct contravention of the terms on which the goods were delivered to and accepted by the defendants. But it was holden, that the evidence on which this argument was founded, viz. the mere fact of the booking of the goods for a different coach, and a subsequent non-delivery, amounted only to a negligent discharge of duty in their character as carriers, and not to an entire renunciation of that character, and of the duties attached to it, so as to make them guilty of a distinct tortious misfeasance in respect of the goods; and as the goods in question were above the value of 57., and had not been insured and paid for at the time of the delivery, the defendants were not accountable for the same, and consequently the plaintiffs were not entitled to recover any thing.

The true construction of the notice is this, that the carrier is not to be protected by the words "lost or damaged," if he divests himself wilfully, or by the acts of his servants, of the charge of the parcel intrusted to his care. Hence, where a parcel exceeding 57. in value, having been delivered to A. and B., common carriers, to be carried by their mail-coach, was accepted by them to be so carried, and was actually put into the mail, and conveyed a short distance; it was then taken out of the mail-coach by a servant of the carriers, and left to be forwarded by another coach, of which A. was one of the proprietors, but in which B. had no concern, and the parcel was lost, but it did not appear by what means; it was holden, that notwithstanding the notice, the carriers were responsible. So where a parcel having been sent from Worcester to London arrived in London, and was taken from the coachoffice of the defendants in a cart, under the direction of one person only, for the purpose of delivery; the servant left the cart unprotected in the street, while he went to different houses for the purpose of delivering other packages, and the parcel, the subject of the action, was lost out of the cart; the court were of opinion, that the carrier, notwithstanding his notice, was liable, and that the words, lost or damaged, did

x Garnett v. Willan, 5 B. and A. 53. y Smith v. Horne, 2 B. Moore, 18.