Сн. 23. Hob. 30.-2 Jones 149. 1 Stra. 145.— Burr 2298, Gibbon v. Poynton & 345.-Bul. N. al.-1 Bac. P. 71.Lyon v. Metts.Carth. 458, Tyly & al. v. Morrice, cit. ed 4 Burr. 2301.-1 Selw. 328. Ld. Raym. 220, Mors v. Slew, cited 1 Selw. 323. 1 Bac. Abr. so much money. That the goods were delivered to the deft. 66 3. So if a hoyman be robbed, he is liable for the reason above mentioned, to prevent confederacies and frauds. § 4. So a carrier is liable for the loss of a box, though he be ignorant of its contents, unless he make a special acceptance; but the bailor may lose his action by fraud or by imposing on the carrier. As when money sent by a stage coach Was hid in hay in an old mail-bag by the bailor, to avoid the price of carrying money; the law will not allow the bailor to take advantage of such a fraud. See 6 East 564, Clarke v. Gray. 5. After several cases as to fraud and concealment by the bailor were decided, it was in this case held, "that the carrier was liable only for what he was told of." The carrier was told there was in the bags £200, (these being sealed up) he gave a receipt for so much. He was robbed. And the court held, he was liable only for the £200, and that the plt. was guilty of fraud. Held " a common carrier insures the goods at all events," and it is right. Bat said Yates J., surely he ought to known" what it is he undertakes, he ought not to be liable where he is deceived." In this case Lord Mansfield and the court went on the principle, that a carrier is answerable by reason of his reward, and ought to have a price according to the risk. And the case of Kenrig v. Eccleston, Allen 93, was denied to be law. 6. A ship was lying in the river Thames within the body of the county, and "eleven persons armed came on board of Jones 152, the ship in the river, under pretence of impressing seamen, and forcibly took the chests which the deft. had engaged to 344.-1 Com. carry." "And though the master was entirely blameless," R. 18, 27, 33. Hale and the court held, he was liable; but otherwise as to storms, pirates, &c. at sea. Abbott 182, 202; Hob. 17; Cro. J. 330. D. 289.-1 T. Sutton v. Mitchell. 7. A carrier is in the nature of an insurer. Hence, he is, when undertaking for hire, bound to deliver the goods at all What is the events, except damaged or destroyed by the act of God or the Cranch, 345. act of God? king's enemies, even though the jury expressly find that they were destroyed without any actual negligence in the carrier. СH. 23. Art. 3. 8. A box of jewels was delivered to a ferryman who did not know what it contained, and a sudden storm arising in the Jones 151.passage, he threw the box into the sea, and the court held, he Allen 93. was liable; but Jones adds a quære. Held, if A travel in a stage coach, and takes his portman- 2 Bos. & P. 419, Robinteau with him, though he has his eye on it, yet the carrier is son v. Dunliable if it be lost. And if a coachman carry goods for hire more. he is liable as a common carrier. common Cro. Jam. Kneeland. § 9. The plt. delivered goods to the deft., a bargeman, to carry for hire, and he so negligently kept them 330, Rich v. they were stolen. Plea, the deft. delivered to A to carry them by the plt's. consent, who discharged the deft. of the carriage. The plt. denied the discharge. Demurrer and judgment for the plt.; for the delivery by his consent was not material, but on the discharge on this issue. Goods left in an 1 Ld. Raym. inn-yard whence the carrier starts is no delivery to him. 46. vens, cites ART. 3. Where a carrier is not liable. He is not liable Bul. N. P. 69, where deceived as above. So he is not liable where there is Amies v. Stesome inevitable accidents; as where the deft's. hoy coming Stra. 128, through a bridge was driven against it by a sudden gust of post. art. 7. wind. This was the act of God, which no care could foresee or prevent. And it is sufficient the hoy or boat be such a one as will probably perform the passage without any extraordinary accident. § 2. So if a pipe of wine upon the ferment burst in the Bul. N. P. 69. wagon when gently driven; for the fault is in the wine, and Farrar v. the insurer does not insure against the defects of the thing itself. 3. So if I send my servant with the goods on board the vessel, and he locks them up and they are lost, the carrier is not liable, for they are not to be viewed as in his keeping, but in the keeping of my servant. But see Robinson v. Dunmore, post. Adams. Bul. N. P. 70, E. I. Comp. r. Pullen. Stra. 690. -1 Bac. Abr. 4. So if the driver of a stage coach, which only carries Bul. N. P 70. passengers for hire, loses their goods, the master is not liable; 343.-2 and if the servant receive a gratuity for carrying the goods it Show. 128.makes no difference; for it is not in the course of his business. Salk. 282. But when goods as well as passengers are carried for hire, then the master is a common carrier, and liable to answer for the goods. $5. So if I and several others be in a ferry boat, and when on the water a tempest arises, and all in much danger of being drowned; upon which to preserve the lives of those on board, goods, and among the rest, mine, of great value, are thrown overboard; the boatman is not liable, and I can have 2 Ld. Raym. 128, Amies v. Stevens. 918.-Stra. Mouse's case. 12 Co. 63. Сн. 23. Art. 4. Garside v. 5 Bac. Abr. 263. no action against him. But perhaps all the different cases must be reconciled on this distinction. If the tempest was reasonably to be expected, then the ferryman was liable; for he then ought to have prepared for it: but if not so to be expected, but the tempest was sudden, then it must be viewed as an inevitable accident, and the ferryman not liable. 6. This was assumpsit against a carrier, and the goods were burnt by an accidental fire. Judgment for the defts. as above. 7. Nor is a carrier liable for not delivering goods, till he is paid his hire; for he has a lien on them, and has a right to retain till he is paid his hire; and as he is bound to -6 East 519. carry goods, so he has by law a lien on them for his hire in carrying them, but no farther. 1 Selw. 337. lan & al. 1 H. Bl. 298, 8. So if a carrier, by printed articles, gives notice that Clay v. Wil- he will not be liable for certain valuable goods, if lost, of more than the value of a specified sum, unless entered and paid for as such, and one knowing the conditions delivers such goods above said value, and conceals the value, and pays only the ordinary price of carriage and booking; the carrier is not liable to the extent of the sum specified, nor to repay the sum paid for the carriage and booking. Bul. N. P. 36. 9. "If a tradesman, in London, send goods by order to a tradesman in the country, by a carrier not named by the country trader; if the carrier embezzle the goods, the country trader must bear the loss." The reason of this case does not readily appear. § 10. If A order goods to be sent to him by a particular carrier, though on condition to return them, if he dislike them, yet, on delivery to the carrier, the property is vested in A, 2 B. & P. 416, and he must pay the price and bear any loss. A carrier, who warrants the goods to go safe, is liable, though their owner send his servant in the cart to look after them. ART. 4. When the carrier's trust ends, &c. Robinson v. 5 T. R. 389, Hyde v pany. 1. The defts. were common carriers from Gainsborough Trent Navi- to Manchester. The defts. charged and received cartage of gation Com- the goods to the plt's. house, the consignee's house in Manchester, from a warehouse there, where the defts. usually unloaded, not belonging to them. They were held to be liable for the goods destroyed by an accidental fire in this warehouse; though they allowed the profits of the cartage to a third person, and this was known to the consignee; and the court held that carriers are liable in all cases but two, being as insurers. The defts. here were to carry the goods from said warehouse to the plt's. ; for by their said charge, it appeared the third person acted under them, and then his act was theirs. § 2. The defts. were common carriers from Birmingham to CH. 23. London. June 7, 1771, they received a box, containing 119 Art. 5. yards of silk, directed to Mr. James Ireland, Prince street, Spittalfields, London; the said box came to the defts'. ware- 3 Wils. 429, house in London, June 8, 1771 with no legible directions on Golden v Manning. it, where it remained a year. When the plt. and Ireland settled their accounts, they found the box had been sent by the Birmingham coach, and not delivered. They found the box in the warehouse, and the silks damaged £29 14s.; and the deft. Manning, refusing to make any satisfaction, he was sued. The defts. neither delivered the silk, or gave any notice to Ireland; his name and place of abode were in the directory; the defts. had made no enquiry where he lived, and, usually, hired a porter to carry out the goods that came by their coach and received the portage. Judgment for the plt.; for carriers are bound to give notice in a reasonable time, to the person to whom the goods are directed, of their arrival; and must take special care they deliver them to the right persons. In this case the carriers remained liable a long time, and until the goods were properly disposed of. 1 Com. D. § 3. So an action against a carrier does not always die with 5 Mod. 92.him, but lies also against his executors or administrators, for 334. the goods lost by him. But this must be understood to be the case, only where the bailor has an election to sue the carrier in assumpsit or ex contractu. Hadley v. $ 4. The defts. contracted to carry the plt's. goods from 8T. R. 259. Liverpool to Leghorn. The vessel was embargoed at Fal- Clarke. mouth in the voyage two years. Held, that after the two years expired when the embargo was removed, the defts. were answerable to the plt. in damages, for not performing their contract. The embargo was laid only till the further order of the king in council; was only a suspension of the contract; did not terminate it, nor was the liability of the defts. at an end by the embargo, but only suspended by it. No offence against our embargo law to remove goods from one ship to another, if not to export them. 6 Cranch 337. ART. 5. Carriers may have assumpsit for their hire &c. 5 T. R. 150. They are bound to carry when they have conveniences, and are offered their hire, otherwise as to private persons. 1. A barge master brought assumpsit for the carriage of Bul. N. P. 70. -Imp. M. P. divers goods for the deft. at his request. So a common car- 288, 289. rier for carrying deft's. goods in his wagon, &c. 2 Show. 81, § 2. It was moved in arrest of judgment, because only a Bastard v. reasonable reward was mentioned, as the carrier's hire; but Bastard. the declaration was held good; for no certain sum might be 1 Selw. 324. agreed, and as in such case the carrier may maintain a quantum meruit, he is equally liable as when there is an express CH. 23. Dawes v. Peck, 8 T. 584, Dutton v. Solomon 339.-3 P. W. 136. agreement for a particular sum. The quantum meruit rests on all the circumstances of the case. 3. The action against carriers must be brought by the owners of the goods. (See Consignments, Bul. N. P. 36.) § 4. Hence, if a tradesman orders goods to be sent by a 3 Bos. & Pul. carrier, a delivery to him is one to the tradesman, and the property, instantly thereon, vests in him; he alone can sue son.-3 Selw. the carrier for any loss or damage to the goods; and this rule holds, as well where the particular carrier is not named 2 Saund 47. by the purchaser, as where he is. And a delivery of goods s. 12. by the vendor on behalf of the vendee to a carrier, although not named by the vendee, is a delivery to the vendee, unless the vendor especially agrees to transport them, then they are at his risk. Hence it seems to follow that the carrier must 214, 228, Sir look for his hire to the vendee, where there is no special agreement the vendor shall pay him; but if the vendors or consignors agree to pay the carrier, they may sue him for not delivering the goods, and he them for not paying his hire; he has nothing to do with a change of property. 1 Vent. 119; Styles 296; 1 D. & E. 659. -5 Burr. 2680. Davis v. James. 1 Johns. R. Tho. Raym. 302. 3 Bos. & Pul. 582, declara in assump sit or case, ART. 6. Manner of declaring &c. § 1. Formerly in actions tion may be against carriers, the plt. stated their employment as common carriers; their liability by the custom of the realm; a delivery to, and acceptance by the defts. of the goods, to be carried for a reasonable hire or reward; concluding with the loss or damage to the goods. But the modern practice is to declare in assumpsit, and to omit the above particulars. But the declaration may, as above, be in assumpsit and join the money counts, or in tort and join trover. "The custom of the realm is the law of the realm, and consequently need not be set forth in the declaration;" of which custom the courts are bound to take notice, without pleading, as they are of any 341-1 Ch. public law. There are two advantages in declaring in tort. 1st. The plt. thereby avoids the plea in abatement for not joining all liable; and 2d. he may have judgment, if some of the defts. be acquitted and some found guilty. 1 Inst. 115.B. -1 Show. 105-8 Co. 52.-5 D. & E. 149.-1 Selw. 340, on Pl. 117. 5 Burr. 2825, Ross v. Johnson.-Salk. 655. 6 East 564, Clarke v. Gray & al. 2. Trover lies not against a common carrier for merely losing goods entrusted to his care, without any actual wrong. The proper form of action is case. If the carrier, however, has the goods in his custody at the time when he refuses to deliver them, this will be evidence of a conversion. 3. Assumpsit may be maintained in the common form of declaring against a carrier, for the loss of goods above £5 value, and not paid for accordingly; though it were a part of the contract, proved by general notice fixed up in the carrier's office, and presumed to be known and assented to by the plt., that the carrier would not be accountable for more |