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the said margin or surplus moneys should be sufficient to Commisadmit of the payment thereof, a further sum equal to the sion on a
contract amount of one franc more per arm on the number of guns so procured included.
plaintiff. 4. The plaintiff thereupon exerted himself to procure the said contract for the defendant, and ultimately through the plaintiff's exertions, the said contract was procured by the defendant from the Spanish government. The rifles in respect of which the said contract was made have all been delivered by Messrs. R. & Sons to the Spanish government, and the moneys payable by the Spanish government to Messrs. R. & Sons have all been paid.
5. Under the said contract, Messrs. R. & Sons became and were entitled to a certain margin or surplus moneys over and beyond the said figure.
6. On the 15th day of June, 1875, the plaintiff brought an action against the defendant (which action is still pending) to recover, amongst other things, moneys from time to time received by the said defendant from Messrs. R. & Sons in respect of the said margin or surplus moneys.
7. Since the issuing of the writ in the said action, divers further moneys have been from time to time received by the defendant from Messrs. R. & Sons in respect of the said margin or surplus moneys, which said further moneys are applicable to the payment by the defendant to the plaintiff of the sums mentioned in paragraph 3 of this statement of claim. The said moneys are however still due and unpaid.
8. The plaintiff in this action does not seek to recover in respect of any of the moneys recoverable by him in the said former action, but only in respect of so much of the said moneys as have been received by the defendant since the said writ in the former action, and are not recoverable by the plaintiff in the former action on that account.
The plaintiff claims :-
Common Carriers (a).
For precedents in actions against carriers of persons, see
Delivery of others.
Against carrier for nondelivery and late delivery.
1. The plaintiff is a fishmonger, carrying on business at G. The defendants are common carriers of goods.
(a) COMMON CARRIERS BY LAND.- Who are common carriers.]—A common
common carrier is a person who undertakes to transport from place to carriers.
place for hire the goods of those who think fit to employ him. The owners of coaches and of carts and waggons carrying for hire are common carriers. Where a barge-owner lets out his barges to all that come to him and to only one person for each voyage, each being made under a separate agreement and the customer fixing the termini, he is a common carrier. (Liver_Alkali Co. v. Johnson, L. R. 7 Ex. 267; affirmed L. R. 9 Ex. 338; 31 L. T. N. S. 95.) Railway, canal, and navigation companies may become common carriers (8 & 9 Vict. c. 20, ss. 86, 89; 8 & 9 Vict. c. 42, ss. 5, 6); and such companies are generally common carriers, but only as to such things as they publicly profess to carry.
(Johnson v. Midland Railw. Co., 4 Ex. 367.) Common
Liabilities at common law.] — Common carriers are bound to recarriers ceive and carry all goods offered to them for which the person rebound to
quiring them to be carried is ready and offers to pay reasonable hire. carry all
(Pickford v. Grand Junction Railw. Co., 8 M. & W. 372 ; Garton v. goods
Bristol and Exeter Railw. Co., 30 L. J. Q. B. 273.) And they are bound to offered to
complete carrying within a reasonable time, having regard to all the cirthem.
cumstances, but they are not responsible for the consequences of delay
arising from causes beyond their own control (Taylor v. Great Northern Bound to Railw. Co., L. R. 1 C. P. 385); and provided they carry by a reasonable carry and usual route, they are not bound to carry by the shortest route, even within a though enabled by statute to charge a mileage rate for carriage. (Myers reasonable
v. London and South-Western Railw. Co., L. R. 5 C. P. 1.) Common cartime. riers are not bound to take extraordinary measures, if the road is ob
structed by snow, for accelerating the journey, though the delay may be
injurious to the goods or their owners. (Bridden v. Great Northern They are Railm, Co., 28 L. J. Ex. 51.) Common carriers are, by the common law, insurers of insurers of the goods they carry against all accidents except the act of the goods God (i.e. things which could not happen by the intervention of man, as they carry. storms, lightning, and tempest), and the Queen's enemies. In order to
come within the exception of loss by the act of God as applied to the liability of common carriers, the loss need not have been caused directly and exclusively by such a direct, violent, sudden, and irresistible act of nature as the carrier could not by any amount of ability foresee or resist,
so as to prevent its effect. A loss is a loss by the act of God if occasioned What is by the elementary forces of nature, unconnected with the agency of man “ the act of or other cause. If the loss is occasioned partly by the act of God as God." above defined and partly by some other cause which, if it had been the
sole cause of the loss would have furnished a defence, the carrier will be entitled to immunity in respect of such loss, if he can show that it could not have been prevented by any amount of forethought and care reasonably required of him. (See Nugent v. Smith, 45 L. J. C. L. 697, App.)
Carriers of live stock are not liable for injuries caused by an inherent
2. On or about the 1st of February, 1875, Messrs. F. & M., Against of B., acting for and on behalf of the plaintiff, delivered to for non
&c. vice of an animal; they are exempted from liability in this respect if Injury they provide for the carriage a truck that is reasonably
fit for the purpose. through (Blower y. Great Western Railw. Co., L. R. 7. C. P. 655, explaining vice of Carp v. Lancashire of Yorkshire Railw, Co., 21 L. J. Ex. 263 ; and see animal Richardson v. North Eastern Railw. Co., L. R. 7 C. P. 75; and Gill v. carried. Manchester, 8c., Railw. Co., L. R. 8 Q. B. 186.) Nor are carriers liable
Wear and for injuries to goods arising through ordinary wear and tear, or friction during the journey, or for the natural decay of perishable goods. (Story, tear, &c. Bailments, cited with approval, in Blower v. Great Western Railw. Co., supra.)
Carriers may generally limit their business to certain goods, but must do so by a pablic profession of what goods they are willing to carry ; in such cases they are not bound to carry any others. (Johnson v. Midland Railw. Co., 4 Ex. 367; Oxlade v. North Eastern Railw. Co., 26 L. J. C. P. 129.)
Common carriers from a place within to a place without the realm are subject to the same liabilities as those within the realm. (Crouch v. London f. North-Western Railw. Co. 23 L. J. C. P. 73.)
Carriers may generally limit or modify their common law liabilities by Carriers contract, where persons are willing to enter into such stipulations with may limit them; but railway and canal companies can only limit their liability by their liacontracts which are signed and which in the opinion of the Court are bility by reasonable (see post, p. 258). Thus a carrier of furniture for hire who special stipulated with the customer that he should only be liable for breakages contract. not exceeding £5 for any article, was held not liable for the destruction by fire without negligence on his part of the whole of the goods received by him to be carried, and destroyed during the transit. (Scaife v. Tarrant, 44 L. J. Ex. 234, Ex. Ch.)
Statutory modification of liability.] —The liability of carriers has Statutory been modified by the following enactments, of which it is proposed to modificagive a summary, adding after each the most important modern deci- tion of
liability 11 Geo. 4 & 1 Will. 4, c. 68 (Carriers Act), explained by 28 & 29 Vict. c. 94.
17 & 18 Vict. c. 31 (Railway and Canal Traffic Act).
Sect. 1. That no common carrier by land for hire shall be liable for the Carrier by loss of or injury to any articles of the descriptions following ; (that is to land not say,)--gold or silver coin of this realm or of any foreign state, or any gold liable for or silver in a manufactured or unmanufactured state, or any precious stones, loss, &c., jewellery, watches, clocks, or time-pieces of any description, trinkets, of specified bills, notes of the Governor and Company of the Banks of England, Scot. articles if land, and Ireland respectively, or of any other bank in Great Britain or above £10 Ireland, orders, notes, or securities for payment of money, English or in value, foreign, stamps, maps, writings, title deeds, paintings, engravings, pic- unless tures, gold or silver plate or plated articles, glass, china, silks in a manu- value defactured or unmanufactured state, and whether wrought up or not wrought clared at up with other materials, furs or lace (not machine-made, 28 & 29 Vict. time of c. 94), or any of them,-contained in any parcel which shall have been delivery to delivered, either to be carried for hire, or to accompany the person of any carrier. passenger in any mail or stage coach or other public conveyance, when the value of such articles contained in such parcel or package shall exceed £10, unless at the time of the delivery thereof at the office, ware
Against the defendants, as such common carriers, and the defendants carrier
received from the said Messrs. F. & M. ten hampers of cod, to for nondelivery and latedelivery.
house, or receiving house of such common carrier, or to his book-keeper,
coachman, or other servant, for the purpose of being carried or of accomCarriers panying the person of any passenger, the value and nature of such Act, s. 1. articles shall have been declared by the person sending or delivering the
same, and the increased charge hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or
package. Carrier Sect. 2 authorises the demand of an increased rate of charge for such
articles, notified by a notice publicly affixed in the carrier's office, which mand all persons sending parcels are to be bound by without further proof of increased the
same having come to their knowledge. charge. Sect. 3 provides “ That when the value shall have been so declared,
and the increased rate of charge paid, or an engagement to pay the same To give a
shall have been accepted, as hereinbefore mentioned, the person receive receipt for
ing such increased rate of charge or accepting such agreement, shall, if increased freight.
thereto required, sign a receipt for the package or parcel acknowledging the same to have been insured, which receipt shall not be liable to any stamp duty, and if such receipt shall not be given when required, or such notice as aforesaid shall not have been affixed, the "
carrier "shall not have or be entitled to any benefit or advantage under this Act, but shall be liable and responsible as at the common law,
and be liable to refund the increased rate of charge." General By sect. 4, no public notice or declaration heretofore made, or hereafter notices to be made, shall be deemed or construed to limit or in anywise affect the limiting
liability at common law of any such public common carriers in respect of liability
any articles of goods to be carried by them ; but all such common carinvalid.
riers shall be liable, as at the common law, to answer for the loss of or injury to any articles and goods in respect whereof they may not be entitled to the benefit of the Act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding.
By sect. 5, for the purposes of the Act, every office, warehouse, or receiving house, used or appointed by such common carrier, for receiving parcels shall be taken to be the receiving house or office of such carrier ; and any one or more carriers may be sued without joining their co
proprietors. Special con- By sect. 6, nothing in the Act shall be construed to annul or affect any tracts not special contract between such common carrier and any other parties for affected. the conveyance of goods and merchandises.
By sect. 7, a person who has insured, as above, may recover back the
extra charge as well as the value of the goods lost or damaged. Act not to By sect. 8, nothing in the Act shall be deemed to protect any common protect car. carrier for hire from liability to answer for loss or injury to any goods rier against whatsoever arising from the felonious acts of any coachman, guard, bookthe felon- keeper, porter, or other servant in his employ, nor to protect any such ious act of coachman, &c., from liability for any loss or injury occasioned by his own bis servant. personal neglect or misconduct.
By sect. 9, common carriers shall be liable to pay only the actual value, as proved, not exceeding the declared value, together with the increased
charges paid by the owner. Carriers by
Contracts to carry partly by land and partly by sea are divisible, and land and
as to the land journey, the carrier is within the protection of the sea within
above Act. (Le Conteur v. London and South-Western Railw. Co., L. R. Act as to
1 Q. B. 54; Baxendale v. Great Eastern Railw. Co., L. R. 4 Q. B. 244, land jour
Ex, Ch.) ney.
be by them safely and securely carried to M., and there, within Against a reasonable time, delivered to the plaintiff.
carrier for nondelivery and late
delivery. It was held that a packed waggon sent for carriage by the defendants is a parcel or package under the 1st section of the above Act. (Whaite v. Lancashire & Yorkshire Railr. Co., L. R. 9 Ex. 67.) So the frame of a picture as being accessory to the picture itself. (Ilenderson v. London and South Western Railr. Co., L. R. 5 Ex. 90.) Where a packing case What contains articles some within the statute and some not, the value of the articles are case and of the articles not within the statute may be recovered, though and what the statute has not been complied with as regards the articles within
are not the statute. (Treadwin v. Great Eastern Railw. Co., L. R. 3 C. P. 308.) within the Where the plaintiff sent a valuable picture by railway and declared
Act. its nature and value at the time of its delivery for carriage, and the company did not demand any increased rate to which they were entitled under section 2 of the above Act, and only the ordinary charge was paid, the carrier was held not protected by the statute for an injury to the picture during the journey. (Behrens v. Great Northern Railw. Co., 7 Â. & N. 950, 953 ; 31 L. J. Ex. 299, 300.)
The fact of a thing having been long delayed but not lost is not within Carriers not the statute, and therefore such delay occasioning damage is actionable, protected though the things are not sent pursuant to the statute. (Hearn v. where delay London and South Western Railw. Co., 10 Ex. 793 ; 24 L. J. Ex. 180.) ground of
Since the passing of this Act, if articles mentioned in section 1 are action. sent without declaring their value, carriers who have complied with the requirements of the Act, are not liable for a loss even though occasioned by gross negligence on the part of their servants, or semble of themselves. (Ilinton v. Debbin, 2 Q. B. 646.) Wilful misfeasance would however render them liable (ibid).
In an action against carriers for loss, where the value has not been Evidence declared, on the ground that the goods were stolen by the carrier's ser- of loss by vants, it is not necessary that the plaintiff should prove that any par- felonious ticular servant had stolen them. (Vaughton v. London f North-Western act. Rail. Co., L. R. 9 Ex. 93 ; see also Kirkstale Brewery Co. v. Furness Rail. Co., L. R. 9 Q. B. 468.
Railway and Canal Traffic Act, 17 & 18 Vict. c. 31.-The 7th section Railway provides that every railway or canal company shall be liable for loss of companies, or injury done to any horses, cattle, or other animals, or to any articles, &c., not goods, or things, in the receiving, forwarding, or delivering thereof, liable occasioned by the neglect or default of the company or its servants, not- beyond withstanding any notice, condition, or declaration made and given by specified such company contrary thereto, or in any wise limiting such liability ; sums for and every such notice, condition, or declaration is declared to be nuli
certain and void. Provided that nothing therein shall be construed to prevent animals unsuch companies from making such conditions with respect to receiving, less value forwarding, and delivering such animals, articles, &c., as shall be ad
declared judged by the Court or judge before whom any question relating thereto
and inshall be tried, to be just and reasonable. The section further provides creased certain limits to damages recoverable for loss or injury to any of such
charge animals (namely, a horse, £50 ; neat cattle, £15 cach ; sheep and pigs, paid. £2 each), unless the person sending or delivering the same to the com. pany shall, at the time of delivery, have declared them to be of higher value, in which case the company may charge a reasonable percentage on the excess of value above the limited sum, to be paid in addition to the ordinary charge, such percentage to be notified in the manner prescribed by the Carriers' Act, (s. 2), and to be binding on the company as