Herbert Street station; if booked through to Manchester (as they might be), they were sent to Bushbury Junction, a mile beyond Wolverhampton, to meet a train on another railway, to be carried to Manchester. Horses might be sent either by horse-boxes and passenger train, when the company charged more money and took more risk, or by cattletrucks and goods train, when they charged less and took less risk. The plaintiff went to the station-master at Shipton, and required twelve horses to be carried to Manchester by the latter method; the station-master told him he could not book through, but would telegraph to Wolverhampton to have the horses sent on to meet the train on the other railway. The plaintiff paid the fare to Wolverhampton, and signed a contract, on which was the direction "Shipton to Wolverhampton," and a declaration that the horses were carried "at owner's risk." The trucks were directed to Wolverhampton; the horses were taken to the Herbert Street station, and it was clear that if they ought, under the contract, to have been carried to Bushbury Junction, there was a delay of twenty-four hours, and consequent injury to the horses-Held, first, that there was some evidence that "Wolverhampton" meant "Bushbury Junction"; secondly, that as there was an alternative method of carriage, the condition as to risk was reasonable; thirdly, that the condition did not apply to a failure to carry in a reasonable time.

The plaintiff, in order to prove a contract to carry six horses from Shipton to Manchester, relied on a conversation at Manchester with the station-master there, in which he, the plaintiff, said he was going to send the horses, and the station-master said he would telegraph about them; on the fact of the arrival of the horses; and on the station-master conducting himself as if there were such a contract; but the plaintiff did not put in any written contract, though it was clear there was one :-Held, that there was no evidence to go to the jury of a contract to carry the horses.

This was an action against the defendants, as carriers, for not carrying certain horses of the plaintiff safely and within a reasonable time.

The first count of the declaration alleged, that, in consideration that the plaintiff

would deliver to the defendants, as carriers of goods for hire, certain goods, that is to say, twelve horses of the plaintiff, to be by the defendants carried from Shipton to Manchester, and there delivered, for the plaintiff, for reward to the defendants, the defendants promised the plaintiff to carry the said goods safely and with due care from Shipton to Manchester aforesaid, and there deliver the same for the plaintiff, within a reasonable time in that behalf; and the plaintiff delivered the said goods to the defendants, and the defendants received the same for the purpose and on the terms aforesaid, and all conditions were performed and all things happened to entitle the plaintiff to have the said goods safely and with due care carried and delivered within a reasonable time in that behalf as aforesaid; yet the defendants did not safely and with due care convey and deliver the said goods for the plaintiff as aforesaid within a reasonable time, whereby certain alleged damage accrued to the horses, and the plaintiff was put to certain alleged expenses.

The second count of the declaration was in similar terms with respect to six other horses.

The defendants pleaded, first, a denial of the alleged promise; and, secondly, that they did safely and with due care carry and deliver the said goods for the plaintiff within a reasonable time.

At the trial the following facts appeared: Shipton is on the West Midland Railway, which forms part of the Great Western Railway system, and which runs through Shipton to Wolverhampton. At Wolverhampton there is a station belonging to the defendants, called the Herbert Street station, and about a mile beyond Wolverhampton (strictly so called) there is a junction called the Bushbury Junction, where the defendants' railway runs into the London and North-Western Railway which goes to Manchester, but where there is no station. Horses and cattle booked from Shipton to Wolverhampton to be delivered there are taken to the Herbert Street station, but those booked through to Manchester are taken to Bushbury Junction, and the responsibility of the defendants continues to the termination of the transit. There are through-rates, and animals are

booked through Wolverhampton to Manchester. Horses may be sent either by passenger or goods train, the charge in the latter case being much cheaper than in the former. The plaintiff went to the station-master at Shipton with respect to sending twelve horses from that place to Manchester by goods train, and was told by him that there was no through-rate, but that he would telegraph to Wolverhampton for the horses to be forwarded to catch a certain goods express train on the London and NorthWestern Railway. A ticket was prepared, which, among other matters, contained on its face the number of horses, the amount of the fare (to Wolverhampton), the plaintiff's name, and the words "from Shipton to Wolverhampton" and "two drovers free"; and on its back was the following declaration, signed by the plaintiff: "Declaration, to be signed when horses are conveyed in waggons. I hereby declare that the value of the horses this day delivered by me to the West Midland Railway Company for conveyance in cattle-waggons by luggage trains does not exceed 107. per horse; and in consideration of the rate charged for conveyance of such horses I hereby agree that the same are to be carried entirely at the owner's risk." Instead of availing himself of the free pass, the plaintiff went by an earlier passenger train; arranged, at the nearest station to Wolverhampton on the London and North-Western Railway, for the horses going on, booked them, paid the fare, and then proceeded on his journey. The waggons were labelled "Shipton to Wolverhampton," and no servant of the plaintiff went with them. They were taken to the Herbert Street station, and there remained till inquiries were made and directions received; they were then sent on to the Bushbury Junction, and it was clear that if, under the circumstances, the defendants were bound to have taken them to Bushbury Junction there was an improper delay of twenty-four hours. The horses eventually arrived in Manchester, much injured, it was alleged, by the length of time they had been on their journey.

With respect to the six horses, the plaintiff proved that he informed the defendants' manager at Manchester that he (the plaintiff) had six horses which were to be delivered the following morning at

Shipton, that the manager said he would telegraph and see that they were properly loaded and booked through, that they arrived injured by their journey, and that the manager expressed his surprise that they had not arrived before, and conducted himself as if this ought to have been the case. But no direct evidence was given as to when these horses were delivered to the defendants, or how the delay (if any) occurred; nor was any written contract produced, though, from certain matters which took place at the trial, it was clear that there was one.

The first count was amended by substituting "Wolverhampton" for "Manchester."

A verdict was found for the plaintiff as to all the eighteen horses for 90., calculated at 51. a horse. But the learned Judge gave leave to the defendants to move in manner set forth in the following rule.

A rule was obtained calling on the plaintiff to shew cause why the verdict found for him on the first count of the declaration should not be set aside, and instead thereof a verdict entered thereon for the defendants, and the damages found in this cause be reduced by the sum of 607. accordingly, pursuant to leave reserved, on the ground that there was no evidence of any breach of the contract, or of any negligence by the defendants to deliver the horses in that count mentioned, or on the ground that by the condition in the contract the defendants were exempted from the liability complained of; and why the verdict found for the plaintiff on the second count of the said declaration should not be set aside, and instead thereof a verdict be entered thereon for the said defendants, pursuant also to leave reserved, on the ground that there was no evidence of any contract for the conveyance of the six horses in that count mentioned, nor any evidence of any breach of that contract, or of any negligence by the defendants; or why the verdict should not be set aside and a new trial be had, on the ground that the verdict was against the evidence.

E. James and R. G. Williams now shewed cause. First, as to the twelve horses. The facts (which they reviewed at length) shew that both the intention and the contract was to carry them to Bushbury Junction, that by mistake they were sent

to Herbert Street station, and that delay and damage were thereby occasioned. With respect to the provision that the horses were to be carried at "owner's risk," this protects against injuries by accident on the way, and not against delay to carry in a reasonable time. And further, if it does, then it is unreasonable. Thus in M'Cance v. the London and North-Western Railway Company (1), Bramwell, B. held a condition that horses should be carried entirely at owner's risk was unreasonable. In Aldridge v. the Great Western Railway Company (2) the Court seems to have thought a provision against "loss, detention and damage," was unreasonable; and in Allday v. the Great Western Railway Company (3) it was expressly held, that a provision against liability for delay was unreasonable. With respect to the six horses, what took place at Manchester clearly shewed that the defendants had undertaken the carriage of these horses, and that there was delay in the transit.

Pickering and Crompton, in support of the rule. First, as to the twelve horses. The evidence relied on by the other side to shew a contract to carry to Bushbury Junction is the conversation at Shipton, where the note was signed; and the directions given by a consignor cannot be allowed to affect the written contract. The whole cause of the delay and damage in reality was the plaintiff's neglect in sending no one with these horses on so long a journey. The condition as to the owner's risk also was quite reasonable, because here there was an alternative; viz. to send at a greater expense with less risk, or at a less expense with a greater risk; and where such an alternative exists, such a condition as is contained in the present contract is reasonable-Peek v. the North Staffordshire Railway Company (4). In Aldridge v. the Great Western Railway Company (2) all that was held was, that a provision against loss, &c. on another line was reasonable. In Simons v. the Great Western Railway

(1) 7 Hurl. & N. 477; s. c. 31 Law J. Rep. (N.s.) Exch. 65.

(2) 15 Com. B. Rep. N.S. 582; s. c. 33 Law J. Rep. (N.S.) C.P. 161.

(3) 34 Law J. Rep. (N.s.) Q.B. 5.

(4) 10 H.L. Cas. 473, 588; s. c. 32 Law J. Rep. (N.S.) Q.B. 241.

Company (5) it was held that a condition against loss or damage from any cause to goods carried at a special and peculiar rate was reasonable; and so, in the matter of telegraphing, a provision as to repeating, in order to insure accuracy, has been held reasonable M'Andrew v. the Electric Telegraph Company (6). In Allday v. the Great Western Railway Company (3) the words were stronger than the present; and the only case where the same were used is M'Cance v. the London and North-Western Railway Company (1); but in both those cases no alternative course was shewn to exist; and this distinction was clearly pointed out by the learned Judge at the trial, and by Cockburn, C.J. in the former of these cases. With respect to the six horses, there was not a particle of evidence of a contract, of the time of starting, or of any delay it is the clear practice of railway companies, in ordinary course, to have a written contract, and none was produced here, though it is clear there was

one.

ERLE, C.J.-I am of opinion that this rule, so far as it relates to the twelve horses, should be discharged. It appears to me that there is great force in much that has been urged on behalf of the defendants, as to "Wolverhampton" meaning the Herbert Street station; but it seems to me there was some evidence to go to the jury that it meant the Bushbury Junction. This matter was left to the jury; the learned Judge is not dissatisfied; and I do not think it would benefit the railway company to have a new trial on the ground of the verdict being against evidence. With respect to the provision that the horses were to be carried at the owner's risk, I think that the stipulation is entirely free from the decision of the House of Lords in Peek v. the North Staffordshire Railway Company (5); for it seems to me that the learned and noble Lords who decided that case recognized the doctrine that it is reasonable for a railway company to have two modes of carriage-one, by which they take a great

(5) 18 Com. B. Rep. 805, 826; s. c. 26 Law J. Rep. (N.S.) C.P. 25.

(6) 17 Com. B. Rep. 3; s. c. 25 Law J. Rep. (N.S.) C.P. 26.

responsibility, and carry by horse-boxes, and another, by which they carry at a cheaper rate, but at a greater risk to the bailor. The contract of the railway company is to deliver the horses in a reasonable time at the owner's risk. Whatever may happen to them on the journey is to be at the owner's risk. But where the contract is to deliver within a reasonable time, there is a duty entirely distinct from the question of damage which may arise from accident on the journey. If a railway company are bound to carry horses in twenty-four hours at the owner's risk, and the horses do not arrive accordingly, then, whether the horses are damaged or not, there is a breach of contract, for which the company are liable. With respect to damage to the horses on the road, in my opinion the company would not be liable for extra damage, but would be liable for all damage which might arise from the breach of contract in not arriving within a reasonable time. This is the total result of the trial in respect of the twelve horses and the 607.

With respect to the six horses, which are alleged not to have been delivered in a reasonable time, the ground the plaintiff relied on was, that because the horses, somehow or other, got into a truck on part of the Great Western Railway, and somehow or other got out of the truck at the terminus at Manchester, therefore there might have been a contract by the Great

Western Railway Company to take them to Manchester in a reasonable time. I am clearly of opinion that there was a contract, according to the usual course of the railway company, of which the Judges may almost take judicial notice; and, further, there is direct evidence in this particular case that the railway company took the animals on a written contract; and the plaintiff, in my opinion, cannot, by throwing before the jury the chance facts that, somehow or other, the horses got into the truck at one place, and, somehow or other, got out at another, ask the jury to infer a contract by the Great Western Railway Company to carry them. It is quite clear there was a written contract, and the plaintiff kept it from the jury, for the best possible reason, because it would disprove the thing which he asked the jury to infer. I think there was no evidence to go to the jury that the defendants were liable as to the six horses; and therefore, as to that part of the rule, it must be made absolute to enter a verdict for the defendants. WILLES, J. and KEATING, J. concurred.

Rule, as to the first count, discharged; and as to the second, made absolute to enter a verdict for the defendants, and reduce the damages by 301.

This was a rule calling on the plaintiffs and the sheriff of Middlesex to shew cause why the defendant should not be discharged out of custody, on the ground that he was privileged both at common law and by the protection granted by one of the Commissione:s in Bankruptcy, under the 12 & 13 Vict. c. 106. s. 112. from arrest, till he had passed his final examination.

On the 1st of March, 1864, the defendant filed a petition in bankruptcy, and on the 22nd of March, 1864, he was duly adjudged bankrupt and surrendered, and protection was thereupon granted to him till the 28th of April, 1864, the time

appointed for his last examination. This protection was renewed from time to time till the 29th of January, 1866, in order that he might pass his final examination on that day. In August and September, 1865, he purchased of the plaintiffs the goods which were the subject-matter of the action, and, on the 9th of December, 1865, judgment was signed.

On the 16th of December, 1865, a sheriff's officer came to the defendant's lodgings and produced a writ of fi. fa. on the judgment; and on being informed by the defendant that the goods there were not his and that he was a protected bankrupt who had not passed his final examination, and being shewn the order of protection, such officer produced a writ of ca. sa, and arrested the defendant.

An application had been made on the 19th of December, 1865, to Byles, J. at chambers, to discharge the defendant from custody, and he had referred the application to the Court.

Bullar. shewed cause. - The question turns on the 12 & 13 Vict. c. 106. s. 112, which enacts, that if a bankrupt "be not