E. T. 1862. 66 THOMAS LLOYD v. THE WATERFORD AND LIMERICK RAILWAY CO.* DEMURRER.-The writ of summons and plaint in this case contained three paragraphs. First paragraph :- "That the defendants were, at the several times hereinafter mentioned, carriers of goods "for hire, from the city of Limerick to a certain place called the "Limerick Junction station, and that the plaintiff delivered to the "defendants, and the defendants received as such carriers, seven"teen horses, the property of the plaintiff, to be taken care of, and "safely and securely carried by the defendants from Limerick to the "Limerick Junction station as aforesaid, and there, within a reason"able time in that behalf, to be safely and securely delivered by the "defendants to the plaintiff; yet the defendants neglected for a long "and unreasonable time in that behalf to carry and deliver the said "horses as aforesaid, and unreasonably detained the said horses at "Limerick aforesaid for several hours, and did not take due care "thereof; but on the contrary allowed or caused the said horses "to be greatly frightened by divers noises while so detained; by reason of which several of said horses were kicked and injured, "and several also became sick and diseased; and the said horses 66 66 were thereby greatly deteriorated in value; and the plaintiff has "expended large sums in curing said horses, to the plaintiff's "damage of £300." Second paragraph:-"That, in consideration that the plaintiff "would deliver to the defendants, as and being carriers of goods “for hire, certain goods, to wit, seventeen horses of great value, "to be by the defendants carried from Limerick to the Limerick of £20 per cent. on the low rate of charge;" but refused to entertain any "claim for damage sustained by any animal conveyed at such additional rate, unless the injury " was "stated and pointed out to the Company's agent at the time of unloading," that condition also not being in itself just or reasonable. * Before LEFROY, C. J., O'BRIEN and FITZGERALD, JJ. Queen's Bench LLOYD ข. AND LIMERICK RAILWAY. E. T. 1862. "Junction station, and there delivered by the defendants for the "plaintiff within a reasonable time, for reward to the defendants; "the defendants promised the plaintiff to carry the said horses from WATERFORD "Limerick to the Limerick Junction station aforesaid, and there to "deliver said horses within a reasonable time; and the plaintiff "delivered the said horses to the defendants; and the defendants "received the same for the purpose and on the terms aforesaid ". "[general averment of the performance of all conditions precedent] "yet the defendants did not carry and deliver the said horses as aforesaid within a reasonable time, whereby several of said "horses fell sick, and were injured and greatly deteriorated in "value; and the plaintiff has been obliged to expend, &c." Third paragraph:-" That, in consideration that the plaintiff "would deliver to the defendants, as and being carriers of goods "for hire, certain goods, to wit, seventeen horses of great value, "to be by the defendants carried from the city of Limerick to the "Limerick Junction station, and there delivered by the defend"ants for the plaintiff, for reward to the defendants; the said "defendants promised to the plaintiff to carry said horses from "the said city of Limerick to the said Limerick Junction station, "and there to deliver said horses at such an early hour on the "day of their departure from Limerick, that said horses might be "carried from said Limerick Junction station to Dublin, and might "reach the place last mentioned before the close of the same day; and "the plaintiff hereupon delivered said horses to the defendants, and "the defendants received the same for the purpose and on the terms "aforesaid "-[general averment of the performance of all conditions precedent]" yet the defendants did not carry and deliver said "horses within such a time and at such an hour as they pro"mised in that behalf; and, by reason of such their default, the "said horses did not arrive at Dublin until long after the close "of the said day; and several of the said horses, in consequence, "fell sick," &c.-[Same conclusion as in the second paragraph]. Fifth defence to the first, second, and third paragraphs of the summons and plaint, and to each of them respectively-" That the "horses were received, to be carried and conveyed by the defendants, E. T. 1862. LLOYD v. "from," &c., to, &c., "at a certain special reduced rate of charge, and "under and subject to a certain contract, made between the plaintiff "and the defendants, and signed by the plaintiff, whereby it was "agreed that the said horses, being so received as in this plea men- WATERFORD tioned, the defendants should in no case be responsible for the "delivery of the said horses at any particular time, and should be "free from all liability in respect of them, whether in the loading Replication:- "That the contract in the fifth defence mentioned "was in the words and figures following : AND LIMERICK RAILWAY. "A. The Waterford and Limerick Railway Company undertake the conveyance of horses at the low rates of charges above stated, "solely on the condition that they shall be free from all liability in respect of them; whether in the loading, unloading, or in the E. T. 1862. "transit and conveyance of same, or whilst in their vehicles or on Queen's Bench "their premises." LLOYD v. WATERFORD AND LIMERICK RAILWAY. "B. The Waterford and Limerick Company will undertake the risk of conveyance only in consideration of an additional payment "of £20 per cent. on the low rate of charge; but no claim for "damage sustained by any animal conveyed at such additional rate "will be entertained by the Company, unless the injury is stated "and pointed out to the Company's agent at the time of unloading." "The Company will in no case be responsible for the delivery of "horses at any particular time, or for any particular market or "race-meeting." "And they will, in no case, be responsible for any greater value "of any horse than the sum mentioned in the Railway and Canal "Traffic Act of 1854; unless, at the time of delivery to the Com"pany, the person sending or delivering the same shall declare it of "higher value; in which case the Company will charge, in addition, "£5 per cent. on the excess of value declared." "The ticket must be given up on arrival." "The above consignment has been delivered to the Company, to "be carried by them at owner's risk, on the foregoing terms and "conditions." "Signed-LLOYD, { Owner or owner's behalf. "Value declared at £ "Value not declared. “D. O'Dwyer, Booking Clerk." "And plaintiff says that said contract is not a just or reasonable "contract." Demurrer thereto.* * The following were the points noted for argument on the demurrer:— Second. That, even if the plaintiff does rely on said Act, the gist of the action is not for any loss or injury within said Act. Third. That, even if the gist of the action were for such loss or injury, it is immaterial whether said contract be just and reasonable or not. Walter Boyd (with whom were Serjeant Sullivan and S. Fer- E. T. 1862. guson), in support of the demurrer. Queen's Bench LLOYD v. AND LIMERICK RAILWAY. The construction which the decision in Armstrong v. Turquand (a) put upon the Common Law Procedure Amendment Act WATERFORD (Ir.) 1853, ss. 63 and 64, enables the Court, upon the argument of a demurrer, to read the whole of a document relied on in the pleadings, though it has not been set out verbatim. This replication therefore has been filed, not for the purpose of stating the contract in full, but of referring to the jury, as an issuable fact, the justness and reasonableness of the conditions. But the 17 & 18 Vic., c. 31, s. 7, has left that question entirely to the decision of the Court or Judge; so that the replication is bad on that account. It is also bad because, as the conditions were contained in a special contract, signed by the sender of the horses, pursuant to the 17 & 18 Vic., c. 31, s. 7, it was not necessary that they should be just and reasonable. The first proviso in that section deals with conditions delivered to, but not signed by, the sender; and limits the Company's power to impose such conditions, by enacting that they shall be void unless they are just and reasonable in the opinion of the Judge or Court. A later proviso in the same section is conversant (a) 9 Ir. Com. Law Rep. 32. Fourth. That, if the justice or reasonableness of said contract, or of any of the conditions thereof, be material, such justice or reasonableness sufficiently appears in and by the terms thereof, and the facts in said defence stated. Fifth. That the plaintiff, by admitting the existence of said contract, signed by himself, and by withdrawing the question of the justice and reasonableness thereof from due inquiry by the Court or Judge, at the trial, is estopped from averring that it is not just and reasonable. Sixth. That the second breach, in the first paragraph, discloses no ground of action good in substance, because no duty is shown in the defendants to prevent said horses from being frightened; and the residue of the causes of action in that paragraph is well answered by the third condition of said contract, without reference to any question of justice or reasonableness. Eighth. That the allegation of injury, in the first, second, and third paragraphs respectively, is remote, and disconnected from, and forms no part of the gist of the action, and is mere matter of aggravation; and the gist of the action in said respective paragraphs is well answered by said third condition, as aforesaid. Ninth. That the replication is bad, for referring to the jury mere matters of law and of judicial opinion. 6 L VOL. 15. |