of the employment of a common carrier furnishes ample ground for so holding." (t)

702. Damages recoverable.-In all actions against common. carriers for unlawfully refusing to receive and carry a passenger or goods, substantial damages are recoverable, as there is an injury to a right; and if the plaintiff, in consequence of the wrongful refusal (1) of the common carrier to carry him, has been obliged to take a special conveyance, and incur extraordinary expenses to reach the place to which he ought to have been carried, all such expenses are recoverable, if claimed by the plaintiff, and specified in his declaration as part of the damage he has sustained. So if a common innkeeper unlawfully refuses to receive and provide accommodation for a traveler, substantial damages are recoverable for the injury done to the plaintiff's right as a traveler and wayfarer to have shelter and accommodation in the common inn; and if he has been put to expense in seeking shelter and accommodation elsewhere, and has been obliged to hire conveyances to reach it, he is entitled to recover such special damage, if claimed.

All persons are responsible for all the natural and legal consequences resulting from acts done by them in violation of the rights of others. The jury are entitled to look at all the surrounding circumstances, and at the conduct of the parties, to see where the blame is, and to assess the damages according to the way in which the parties have conducted themselves. (x)

703. Loss of, or injury to, chattels from negligence.—The amount of damages recoverable from common carriers for loss of, or injury to, goods, is regulated and controlled by the sevaral acts of parliament, requiring consignors in certain cases to declare the value of the article at the time it is delivered to the common carrier to be carried. No greater damages than £50, are to be recovered for loss of, or injury to, a horse through the neglect or default of a railway company or its officers; £15 per head for neat cattle; and £2 per head for sheep and pigs; unless the person sending or delivering the animals

(t) Sheridan v. New Quay Co., 4 C. B., N. S. 618; 28 Law J., C. P. 58. Cheesv. Exall, 6 Exch. 341, overruling Laclouch v. Towle, 3 Esp. 114.

man

(u) Post, ch. 22.

(x) Davis v. North-Western Rail. Co., 4 Jur. N. S. 1303.

to the company shall, at the time of delivery, have declared them to be of higher value. (1)

Proof of the value and of the amount of injury lies in all cases upon the person claiming compensation. If the value of horses has been declared at the time of the delivery of the animals to a railway company to be carried, and the contract between the parties has been made upon that basis, the plaintiff is bound by his declaration of value, and can not recover beyond the declared value. (≈)

If special circumstances exist which would render the loss of the goods, or delay in the delivery of them, productive of more than ordinary injury and damage to the owner, those special circumstances ought to be communicated to the carrier at the time the goods are delived to him, in order to make him responsible for special and extraordinary damages in cases of non-delivery. (a) Thus, where the plaintiff delivered to the defendant certain machinery, contained in several cases, which was intended for the erection of a saw-mill abroad, and on the arrival of the vessel at its destination, one of the cases containing a part of the machinery, without which the rest. could not be erected, was missing, and the defendant, although he knew generally of what the shipment consisted, did not know that the missing box contained a material part of the machinery without which the mill could not be put together, it was held that the measure of damages was the cost of replacing the lost articles abroad, with interest at £5 per cent. for the delay, but not the profits which the plaintiff might have made by the working of the mill. (¿)

When the consignor has been guilty of no intentional deception to conceal the risk, and his own conduct or omission to declare the nature and value of the article has not in any way conduced to the loss, but the loss has been caused solely by the negligence and want of care of the common carrier, the latter is bound by the common law to make compensation for the loss so occasioned, to the extent, at all events, of the appar

(y) 17 & 18 Vict. c. 31, s. 7.

(z) M'Cance v. London and NorthWestern Rail. Co., 7 H. & N. 477; 31 Law J., Exch. 65; 34 Ib. 39.

(a) Hadley v. Baxendale, 9 Exch. 354; 23 Law J., Exch. 179. Black v. Baxen

dale, I Exch. 410. Gee v. Lanc. and York. Rail. Co., 6 H. & N. 217.

(6) British Columbia Saw Mill Co. v. Nettleship, L. R., 3 C. P. 499; 37 Law J., C. P. 235.

ent and presumable value of the article at the time it was bailed to him to be carried. But he is not, it seems, responsible for any extraordinary or unusual value which may have accidentally been imparted to it, and, which could not, from the apparent nature and general character and appearance of the thing, be fairly presumed to exist. Thus, where the plaintiff had put a £50 bank-note into his. carpet-bag amongst his linen and wearing apparel, and got on a coach and delivered the carpet-bag to the coachman, and on the arrival of the coach at the place of destination the bag was missed and never afterwards seen, the jury gave a verdict for the value of the linen and wearing apparel, but not for the value of the note, and the court afterwards refused to increase the verdict by the amount of the note. (c) In her cases, however, the plaintiff has recovered the full value of the article lost. (d)

704. Damages in respect of delay in delivery. If by reason of goods not having been delivered in due time, the season for finding customers for them has passed away, and they are consequently of less value to the plaintiff, the deterioration in value may be considered in estimating the amount of damage, but not the profit which would have been made upon the sale of them if they had been delivered at the proper time; (e) or where the goods consist of machinery, the presumed profit which would have been made by the use of them, during the time it took to replace them. (f) The right measure is the market value of the goods at the place and time at which they ought to have been delivered, or, if there is no market, then the price at the place of manufacture, with the cost of carriage, and a reasonable sum for importer's profit. (g) Thus, where the plaintiff bought caustic soda of the defendant, to be shipped at a certain time, which the defendant neglected to do, and there was no market for caustic soda, it was held that the plaintiff was entitled to recover the increased freight and in

(c) Miles v. Cattle, 4 M. & P. 630; 6 Bing. 743.

(d) Sleat v. Fagg, 5 B. & Ald. 342. Walker v. Jackson, 10 M. & W. 161; 2 M. & P. 342. See Angell on Carriers, 262.

(e) Wilson v. Lanc. and York. Rail. Co, 9 C. B., N. S. 642. Simmons v, South-Eastern Rail. Co., 7 Jur. N. S. 849.

Gt. Western Rail. v. Redmayne, L. R., I C. P. 329. And see further, as to damages in actions against carriers, Addison on Contracts, 6th ed. 1083.

(f) British Columbia Saw Mill Co. v. Nettleship, supra.

(g) O'Hanlan v. Gt. Western Rail Co., 34 Law J., Q. B. 154.

surance which had become necessary by reason of the defendant's delay, and also the loss of his profit upon a re-sale of the soda to A, but not the amount of damages which he (the plaintiff) had paid A on a sub-sale made by him to a consumer of the article. () Hotel expenses incurred by the consignee. while waiting for the delivery of the goods by the carrier are not recoverable.(z)

705. Injunction against railway companies to enforce compliance with the Railway and Canal Traffic Act.-By 17 & 18 Vict. c. 31, s. 3, it is enacted, that it shall be lawful for any company or person complaining against any railway company or canal company of anything done, or any omission made in contravention of the Railway and Canal Traffic Act, to apply in a summary way to the court of Common Pleas, or any judge thereof, and that it shall be lawful for the court or judge to hear and determine the matter of the complaint, and to make inquiry, in the mode therein directed, and to issue a writ of injunction or interdict, restraining such company or companies from further continuing such violation or contravention of the act, and enjoining obedience to the same; (k) and in case of disobedience of any such writ of injunction or interdict, to order that a writ of attachment, or any other process of such court incident or applicable to writs of injunction or interdict, shall issue against any one or more of the directors of any company, or against any owner, lessee, contractor, or other person failing to obey such writ of injunction or interdict; and to make an order directing the payment by any one or more of such companies of a sum of money not exceeding for each company the sum of £200 for every day, after a day to be named in the order, that such company or companies shall fail to obey such injunction or interdict, such moneys to be payable as the court or judge may direct, either to the party complaining, or into court to abide the ultimate decision of the court, or to her Majesty; and payment thereof, may, without prejudice to any other mode of recovering the same, be enforced by attachment, or order, in the nature of a writ of execution; and, in any such proceeding, the court or judge may order and determine that

(h) Borries v. Hutchinson, 34 L. J., C. P. 169.

(i) Woodger v. Gt. Western Rail. Co.,

L. R., 2 C. P. 318.

(k) See Ransome v. East. Co. Rail. Co., 26 Law J., C. P. 91.

all or any costs thereof or thereon incurred shall be paid by or to the one party or the other, as the court or judge shall think fit. (?)

"It is abundantly clear," observes COCKBURN, C. J., "from the statutory enactments which enjoin on railway companies the obligation to afford accommodation on equal and reasonable terms, and from the provisions of the statute by which jurisdiction is given to the Court of Common Pleas against the affording of undue preference, or the imposing of undue prejudice or disadvantage, that it was not the intention of the legislature to leave to railway companies the unfettered exercise of their rights, as proprietors of their respective lines; but in return for the great powers which it has conceded to them, and for the monopoly of the carrying business of the country, which in a great degree they have been enabled to acquire, has imposed on them the obligation of affording accommodation on equal terms to the whole of the public;" and they can not promote their own interests as carriers at the expense of the right of the public to that equality, (m) or give to one individual greater advantages at their stations, (2) or upon their line, than they allow to another. (0)

Where a railway company, in order to compete with a particular carrier in the collection and delivery of parcels, makes a man who has his own wagons and horses, and therefore does not require the company to collect and deliver parcels for him, pay more than he ought to pay for the transit on the railway, it is a case of undue prejudice against the person not wanting the accommodation. The company have no right to make a charge nominally for carriage upon the railway, which is in reality for that and something else, and so impose upon a portion of the public services which they do not desire to avail themselves of. (p) So if a number of tradesmen in a country

(7) Forms of proceeding, &c., Reg. Gen. C. P. Hil. Term, 18 Vict., 15 C. B. 473.

(m) Baxendale v. Gt. Western Rail. Co., 5 C. B., N. S. 354; 28 Law J., C. P. 69.

() Marriott v. Lond. & S. W. Rail.
Co., I C. B., N. S. 499: 26 Law J., C.
P. 154. Beadell v. East. Co. Rail. Co.,
Ib. 250.
Baxendale, In re, 11 C. B., N.

S. 787; 12 Ib. 758.

(0) Baxendale v. North Devon Rail. Co., 3 C. B., N. S. 324. See 31 & 32 Vict. c. 119, s. 16, ante.

(p) Cockburn, C. J., Garton v. Gt. Western Rail. Co., 5 C. B., N. S. 678. Baxendale v. Gt. Western Rail. Co., 16 Ib. 137: 33 Law J., C. P. 197. See 31 & 32 Vict. c. 119, s. 17, ante.