by the carrier, as he may properly be, and he gives a false CH. 23. account, he would, in case of a loss, recover no more than he Art. 8. specifies. In fact, where the value is stated, or a per centage allowed the carrier, his liability will not extend beyond the sum mentioned. If a passenger take more than the weight allowed, the carrier is not liable for a loss.

§ 3. The carrier cannot divide his contract unless by a set- 5D. & E.305: tled usage. He is bound to deliver at the residence of the consignee; and if a carrier put up at the inn or warehouse of another, who alone receives the compensation for sending out the goods transported; yet the carrier's responsibility ends not till the article be safely delivered to the person to whom it is destined; for it can be of but little importance to hold the carrier, while on the road, if immediately after his arrival he can exonerate himself of the responsibility, by delivering the packages to another, who may be totally unknown to the owner, and who may be not worth a cent. This too would be splitting a contract, entire for carrying from one place to another, without the owner's consent; as there would be one contract with the carrier, another with the innkeeper, and a third with the porter, &c. Nor can the same men be carriers and warehouse-men: that is, A cannot be carrier of goods to his warehouse, and there, as warehouse-man, store them, and charge his storage, and not be liable as carrier. See these principles settled in Hyde's case, and Golden v. Manning, above. And Gould J. said, a carrier is bound to give notice to him to whom the goods are to be delivered, whether bound to deliver or not. But the master of a ship is only bound to carry from "port to port," by his bill of lading.

Ellis v. Turner & al.

§4. Owners of vessels may be liable for the act of their D. & E. 531, master, though they post notice to the contrary. As where the defts. and others, in Sept. 1798, posted in several places in Hull, printed hand-bills, giving notice that in future the owners of vessels would not be answerable for any loss or damage, happening to any cargo, unless occasioned by the want of ordinary care and diligence in the master and crew; in which case they would pay 10 per cent. upon the loss or damage, provided such payment did not exceed the value of the vessel; but that they were willing to insure against all accidents on receiving extra freight in proportion to the value &c. The defts. owned a vessel trading from Hull to Gainsborough, and the plt. put some goods on board her, ignorant of said notice, to be carried to and delivered at Stockwith, a place between Hull and Gainsborough, as the vessel went to Gainsborough. For the carriage here was no special agreement. She went safe to Stockwith and there delivered part of her cargo, but not the plt's. goods; being covered up by goods to

CH 23.
Art. 9.

Amies v. Ste

128.

be delivered at Gainsborough. The master went on, and she was sunk between Stockwith and Gainsborough, without any want of ordinary care or diligence, in the master or crew. It was sometimes the practice to carry goods to be left at Stockwith, to Gainsborough, and to leave them at Stockwith in coming back from Gainsborough to Hull. An action on the case was brought against the owners: they deducted what the damaged goods sold for, and brought into court 10 per cent. on the residue of the plt's goods; but judgment for him for his whole loss, on the ground respondeat superior. The defts were deemed answerable for this misconduct of their servant, who might, and ought to have left the plt's. goods at Stockwith, as he went from Hull to Gainsborough; as these were matters that respected his duty under them. The court disregarded the hand-bills the defts. and other owners of vessels had posted. The master so engaged to deliver the plt's. goods at Stockwith, as he went to Gainsborough, without the privity or knowledge of the defts. ; but it was in the nature of his business so to engage. The agents of the plt. who shipped the goods had before had the said hand-bills delivered to them.

§ 5. When the carrier has carried the goods his whole distance, his responsibility is at an end, and after that he may, as to them, act as a warehouse-man. Hence, a loss of the goods by fire, or other accident, while in the warehouse, waiting for an opportunity to be sent to their ulterior destination, will fall on the owner; for warehouse-men are not insurers, as carriers are. 4 D. & E. 581, Garside's case.

§ 6. It is, also, a rule, that it is sufficient if the carriage, or phens, Stra. vessel, or boat, &c. of the carrier, be adequate to perform the journey, or voyage, without any extraordinary accident; Amies v. Stephens, above. The accident in this case was a sudden and unexpected gust of wind, in passing a bridge. But the carrier is liable, if he run into perils common prudence and foresight may avoid.

1 East 604, Edwards & al. v. Sherratt.

ART. 9. The common carrier is not liable, unless contracted with, as a common carrier. § 1. In this case a new principle seems to have been started; hence, no authority was cited. This was an action on the case, in common form, against the deft. as a common carrier by water, from Wolverhampton to Birmingham; for negligently carrying a quantity of wheat, of the plt's., whereby it was lost; also, money counts. General issue pleaded. This wheat was in a warehouse of Beckley & Co. at Wolverhampton for the plt's. use, who lived at Birmingham; the deft. was a common carrier between Birmingham and Wolverhampton, and so on to Radford, lying beyond Wolverhampton; but the carriage of goods between Radford and Wolverhampton, and Wolverhampton and Birmingham, was

conducted by different boats. In the scarcity of bread &c. in 1800, a riotous disposition appeared at Wolverhampton; the mob pulled down one corn mill, and it was reported they intended to attempt the warehouse of Beckley & Co.; thereon their acting clerk wrote to the deft. to send an extra boat for this wheat as quickly and as privately as he could, on account of the state of the country; he received no answer, but on Monday, Sept. 29, 1800, finding a boat of the deft's. which had been to Radford, or somewhere beyond Wolverhampton, and then returning empty by Wolverhampton to Birmingham, he caused it to be stopped for the purpose of taking a quantity of wheat on board; and Green, the boatman, making no objection to the proposal, 166 bags of wheat were put on board for the plts., and some flour for a Mr. Allen; the bags were put on board in open day, and the wharfinger's clerk gave no particular directions to the boatman, but he had sent privately to the lockmen, to have the lock ready to let the boat pass free at any time the boatman chose to go off. She went off in the evening of said Monday; the usual days for the deft's. boats to go off from Wolverhampton to Birmingham were Tuesdays and Fridays; and this was not one of those boats, but one used from Radford to Wolverhampton. There was another load at the same time, from the same wharf, that went in company. Some part of Allen's flour arrived safe, for which the deft. charged a freight; but 166 bags, that belonged to the plts. were seized by the rioters, 4 miles from Wolverhampton, and lost to the plts, and no charge of freight was made. The plts. never informed the deft. or his boatmen of the danger. But the deft. claimed demurrage for the time the boat was detained by the rioters; but this the plts. refused to pay. The question made, and for the jury to decide, was "whether the bags were put on board, according to the usual course of dealing, with a common carrier." The jury found the bags were not put on board in the usual course of dealing with a common carrier, and so their verdict for the deft.; and the court held, the verdict was right, either on the general ground of fraud in the plts., or on the circumstances of the case, proving the deft. engaged to do the best he could, but not to be answerable as a common carrier; for the violence of the mob; or because it did not appear that the boatman, whose ordinary employment was between Radford and Birmingham, had authority from the deft. to accept the goods at Wolverhampton, for Birmingham, much less to accept them in that manner. The court thought it was properly left to the jury, to decide if the bags were put on board according to the common course of dealing, with a common carrier; and if not, then to find for the deft.; and that this was correct; and that

CH. 23.

Art. 9.

CH. 24.
Art. 1.

3 Inst. Ch. 418.

2 Maule &

it was a proper question of fact for them to decide. Ld. Kenyon C. J. said, "there is fraud apparent on the face of the transaction."

Lawrence J. held the boatman, Green, did not act under the proper authority of the defts. ; that is, as Le Blanc J. explained it, the boatman, Green, had no power from the deft. to take goods from Wolverhampton to Birmingham, and that this business the deft. assigned to another servant.

In this book is a regular plea by a carrier, that he was robbed of the goods entrusted to him to carry, and in his plea he states particularly how he was robbed, &c.

2. Assumpsit against the deft., as a carrier by water, from Sel. R. 1,6. Bristol to Worcester, for not safely carrying sugar, &c. He had given notice he would not be liable for loss or damage, unless by the actual negligence of the master or mariners. Held, he had not waived his notice, by paying previous losses to the plts. for damage, without enquiring into the cause of such damage.

CHAPTER XXIV.

2 Bl. Com. 396, 397.Salk. 654,

-2 Cruise 6. -4 Cruise 162, 172.

ACTION OF ASSUMPSIT. CHOSE IN ACTION.

ART. 1. A chose in action, is rather a thing in potentia, than in esse. All property in action depends entirely upon contracts, Arnold's case. either expressed or implied; which are the only regular means of acquiring a chose in action; on the non-performance of all which, the law gives an action of some sort to the injured party, who regularly has no possession, till it is acquired by judgment and execution. But he has property in the evidence of the debt, as the bond &c.; and ay maintain trover to recover it. Choses in action are debts due from nations as well as individuals.

2 Bl. Com. 442.

1 T. R. 26,

ART. 2. How a chose in action, substantially, belongs to the assignee, though he must sue in the name of the assignor. Delancey v. Debts to the crown, however, were always assignable. In this case a policy was assigned over, and it was held it was recovered to the use of the assignees, in the case of a loss. Bond assigned; see Legh v. Legh, Ch. 167, a. 4.

Stoddart.

§ 2. In this case many authorities are cited by Justice Buller to shew that a chose in action is now in substance assignable, though not in form. It has long been held that the assignment of a bond is a good consideration of a promise. But a right of entry is in no sense assignable.

a

CH. 24.
Art. 2.

4 T. R. 339,

Masters v.
Miller.

4

T. R. 690, Howill & al.

v. MacIvers & al.

§ 3. In this case it was decided that the assignment of chose in action need not be by deed: nor is it necessary in pleading, to set forth the manner of the assignment. § 4. In this it was decided that a policy of insurance is Mass S. Jud. assignable, so far as to vest an equitable interest in the as- Court, 1801, signee, by the assured's assignment, though the underwriter do Wakafield v. not assent, or know of the assignment; and after this assignment he is not trustee to the assured, but owes the loss to the assignee, and not to the assured.

Martin.

6 T. R. 362,

in Read v.

5. In legal strictness, a chose in action cannot be assigned; "still according to the rules of equity and honest dealing, Dupper. if the assignee give notice to the debtor of such assignments, he shall not afterwards be suffered to avail himself of a payment to the principal in fraud of such notice."

2 Woods'

6. It has been determined, that in equity, a husband may on. 198 assign a chose in action, which he has in the right of his wife, and which, also, he may recover or discharge.

-Imp. M. P.

1 T. R. 619. Winch v.

Q 7. If the obligor, after notice of the assignment, pay the 4 T. R.125. money to the obligee, he will be compelled to pay it over 54. again, though payment without notice is good. Legh v. Legh. 8. The assignor, who has become a bankrupt, may sue the debtor for the benefit of the assignee; for by the as- Keeley. signment, the property is his in equity. Nor does a debt due to a bankrupt, as a trustee for another, pass under the assignment of his effects, after the assignor has assigned the chose in action, as a balance of accounts &c. He is merely trustee of the deft., for the assignee. And the courts of law will now taks notice of a trustee, though they did not formerly.

9. So the debtor may offset with the assignee, as where Bottimly. the deft. pleaded that he owed the bond to the plt., who held IT. R 621. Brooks, cited it in trust for one A, and that she owed the deft. more than Same Rudge the amount of the bond. On demurrer to this plea it was ad- v. Birch. judged good. So after an assignment, the obligee holds the bond in trust for the assignee.

Court, June,

10. In this case, one Read obtained a judgment and exe- Mass. S. Jud. cution against Murry, and assigned them over to Cobb, with a 1795, Hudpower of attorney annexed, to receive the amounts to his, son's case. Cobb's use. He sent this execution to Hudson, a deputy sheriff, to collect of Murry, and to pay the same to Cobb. To this, Hudson assented. Hudson received the debt of Murry, and before Hudson had paid it over to Cobb, Hudson was attached as trustee to Read, the judgment creditor. But the