indemnify the owner against even the acts of God and the king's
enemies for a proportionable reward. Then it must be inferred
that the fpecial rifks, for which only the carrier contracted in the
first part of the notice, were for less than a reasonable reward;
and if fo, there would be a fufficient confideration to the plain-
tiff for the defendant narrowing his common law liability. As
to this not being a cafe within the terms of the notice, because
it is the owner's duty to provide a proper veffel; that does not
follow; because the want of repair may be as much the default
of the mafter as of the owner. Befides the notice is that the
owner will not be liable for any lofs unless occafioned by the
want of ordinary care in the mafter or crew, which excludes
every other cause of lofs. Then it was not competent to the
fervant beyond the declared fcope of his authority, as limited
by the notice, to bind the owner of the veffel by a promife
which went to warrant the fecurity of the veffel at all events;
however the owner himself might have bound himself by fuch
a promife; and therefore this is not like Ellis v. Turner, where
the fpecial promife of the mafter was collateral to the notice,
namely, to deliver the goods at a particular place in the courfe
of the navigation. [Lord Ellenborough C. J. Is it not within
the scope of the fervant's general authority to declare in what
condition the veffel is, which may be the plaintiff's induce-
ment to put his goods on board it? If the servant make a
fraudulent representation he himself would be liable, and might
perhaps, in fome cafes, bind his employer for whose benefit he
was acting, but the remedy would be in another form of action.
[Lawrence J. If the fervant have authority to represent the
veffel in good condition, why may not that be the foundation
of an affumpfit as well as if the master himself had so repre
fented it?] It would be fo if he had a general authority, ac-
cording to Seignior v. Wolmer (a); but here was only a special
authority to contract within the terms of the notice, and there-
fore an execution of it under a different modification will not
bind the principal, as in Fenn v. Harrifon (b). If then the
plaintiff must be bound by the notice, this action is miscon.
ceived; because the defendant did not contract as a common
carrier, but fpecially with the restriction contained in the no-

(a) Godb. 360.

(b) 3 Term Rep, 757. Sed vi. S. C. 4 Term Rep. 177.

I

tice;

1804.

LYON

434

against MELLS.

[ 435 ]

1804.

LYON againfi MELLS.

tice; and if he were bound to have accepted the goods in his general character, he having refused to do so, the plaintiff's remedy fhould have been by an action on the cafe against him for fuch refufal.

Holroyd, in reply, noticed the ftatutes 7 Geo. 2. c. 15. and 26 Geo. 3. c. 86. which particularly exempted the owners of ships from loffes of gold, filver, and jewels, put on board without their privity, beyond the value of ship and freight, and that on certain conditions: which fhews that they were before confidered as liable. And faid that the 51. cafes certainly went on the ground of want of adequate confideration for the rifk: and it was a fufficient reafon why the carrier was not liable even to that amount, because if he had had notice that the value of the [436] goods was more, he might have taken additional precautions against the lofs. That as to the form of the action, it was fettled in Dale v. Hall (a) that it made no difference whether it were in affumpfit or on the custom of the realm; for that by ftating that the defendant carried for hire, it fhewed that he was a common carrier, and that was a foundation for the affumpfit,

Cur. adv. vult.

Lord ELLENBOROUGH C. J. delivered judgment. The general question fubmitted to our determination by the special case stated at nifi prius is, whether the plaintiffs be entitled to more than 10l. per cent., upon the fum of 274/. 16s. 4d. the damages stated to have been sustained by the plaintiffs in confequence of the injury done to their yarn while on board the defendant's lighter. That they are entitled to recover to the extent of 10%. per cent. is admitted by the terms of the question. On the part of the plaintiffs it has been argued, either that the notice given by the defendant, as set forth in the case, is illegal, being to exempt him from a responsibility caft on him by law as a carrier of goods by water for hire; or if that propofition be not maintainable, that in fact the prefent cafe does not fall within the terms and meaning of that notice. At the close of the argument the Court intimated an opinion that in the determination of this cafe it might perhaps not be neceffary to enter into a confideration of the general queftion, as to the validity of thefe notices in point of law, and to what extent and

(a) 1 Wilf. 281.

прод

upon what principles they may be fupportable. And on further confideration we are all of opinion, that in the prefent cafe, admitting the notice given by the defendant and the other owners of veffels to be valid as an agreement between them and the fhippers of goods, the circumstances stated do not bring the plaintiff's lofs within fuch agreement. In every contract for the carriage of goods between a perfon holding himself forth as the owner of a lighter or veffel ready to carry goods for hire, and the perfon putting goods on board or employing his veffel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman, implied by law, that his veffel is tight and fit for the purpofe or employment for which he offers and holds it forth to the public: it is the very foundation and immediate fubftratum of the contract that it is fo: the law prefumes a promife to that effect on the part of the carrier without any actual proof; and every reafon of found policy and public convenience requires it fhould be fo. The declaration here ftates fuch promife to have been made by the defendant; and it is proved by proving the nature of his employment; or, in other words, the law in fuch case without proof implies it. The declaration avers a breach that the lighter was not tight and capable of carrying the yarn fafely; and the facts stated fupport the breach fo alleged, by fhewing that the vessel was leaky and had nearly funk in the dock before the yarn could be unloaded from the lighter into the floop. This we confider as perfonal neglect of the owner, or more properly as a non-performance on his part of what he had undertaken to do, viz. to provide a fit veffel for the purpose. This brings me to confider the terms of the notice: "We will not be anfwerable "for any loss or damage which fhall happen to any cargo "which fhall be put on board any of our veffels, unless fuch "lofs or damage shall happen or be occafioned by want of or"dinary care and diligence in the mafter or crew of the veffel, "in which cafe we will pay 10l. per cent. upon fuch loss or "damage, fo as the whole amount of fuch payment shall not "exceed the value of the vessel and the freight." I have before ftated our opinion to be that this is clearly a neglect or breach of performance in the owner of the veffel, and not a neglect in the mafter or crew; it does not therefore come within the exception of fuch lofs or damage as is to be compensated by 10%. per cent. But the notice ftates that "they will not be an

fwerable

18:4.

LYON

against MELLS. * [ 437 ]

[438]

I 804.

LYON against MELLS.

not

fwerable for any other lofs or damage ;" and therefore this must be contended to be within that other loss or damage for which they will not be answerable; a propofition however which feems to have ftruck the counfel for the defendant as not capable of being fupported; for I take him to have admitted in his argument that if the defendant had himself made the promise ftated in the declaration he would have been liable; and he could not contend otherwife: for it is impoffible without outraging common fenfe lo to conftrue this notice as to make the owners of veffels fay, We will be anfwerable to the extent of 10 per cent. for any lofs occafioned by the want of care of the mafter or crew, but we will not be answerable at all for any lofs occafioned by our own misconduct, be it ever fo grofs and injurious; for this would in effect be faying, We will be at liberty to receive your goods on board a veffel, however leaky, however unfit and incapable of carrying them; we will r be bound even to provide a crew equal to the navigation of her; and if through thefe defaults on our part fhe be loit, we will pay nothing. Nay more, your compenfation in cafe of misconduct of the mafter or crew can never exceed the value of the veffel and her freight; and therefore by providing a [439 rotten and leaky veffel of little value, we leffen our own refponfibility pro tanto even in the only event in which we are to be at all refponfible. Ridiculous as this fuppofed state of the agreement must appear, yet thefe and more abfurd ftipulalations must be introduced into it if we give it a construction which fhall bring this cafe within it. Indeed that this is the true construction will further appear from the part of the notice refpecting additional freight; for it is addreffed to those who are defirous of having their goods carried free of rifk "from the act of God or otherwife;" words importing that the thing for which an increafed freight is to be paid, is that which is properly the object of rifk,, and of courfe may or may not happen. to the goods, i. e. that which may arife from accident and depends on chance, and not that which is certain and muft inevitably be the confequence of a defect in that which the carrier has engaged to provide. Every agreement must be conftrued with reference to the fubject matter; and looking at the parties to this agreement (for fo I denominate the notice), and the fituation in which they stood in point of law to each other, it is clear beyond a doubt that the only object of the owners of

lighters

lighters was to limit their refponfibility in those cafes only where the law would otherwise have made them anfwer for the neglect of others, and for accidents which it might not be within the scope of ordinary care and caution to provide against. For these reasons, we are of opinion that the plaintiffs are entitled to have their verdict entered for the full fum of 274/. 16s. 4d. and that the poftea be delivered to them for that purpfe.

Poftea to the plaintiff.

1804.

LYON

againf MELLS.

[440 ] Wednesday,

June cth.

In an action against the marfhal for

ration that

of on meine cefs and

pro

brought be

WIGLEY against JONES, Marshal of the Marshalfea. IN N an action against the marshal of B. R. for an escape the declaration ftated that one Mary Bergeret de Frouville was indebted to the plaintiff in 3 9s. for goods fold and delivered, an escape, it for the recovery of which the plaintiff in Trinity term 41 Geo. being alleged 3. fued out of B. R. a bill of Middlefex to arreft her, founded in the decla. on an affidavit of debt for 344. 95. filed of record in B. R., and the prifoner which precept was indorfed for bail for the faid fum. By vir- was arrefted tue of which faid precept the faid M. B. de F. on the 2 September, &c. was arrested by the sheriff of Middlefex, and detained in cuftody for want of bail; and being in fuch cuftody fore a Judge for the cause aforefaid, on the 24th of the fame September the at chambers was brought before Sir S. Le Blanc, one of the Juftices of B. R. by virtue of a writ of haleas at his chambers, &c. in the custody of the faid sheriff by virtue corpus, and of a writ of habeas corpus iffued out of B. R. and directed to the was by him sheriff, &c. and the faid M. B. de F. was thereupon committed thereupon by the said Judge to the custody of the marshal of the Mar- the cuftody fhalfea, &c. at the fuit of the plaintiff in the plea aforefaid, and of the marfor the cause aforefaid, there to remain until, &c. as by the re- fhal as by the record thereof cord thereof now remaining in the court of our faid lord the king now remaining before the king himself manifefly appears, by which commitment in the Court of the defendant, then marfhal, &c. took the faid M. B. de F. B. R. apinto his cuftody, &c. in the King's Bench prifon. The decla- pears, &c. ration then alleged the fubfequent efcape of the prifoner, while tion is either impertinent

committed to

fuch allega

and furplufage; for, properly fpeaking, fuch documents are not records nor capable of becoming fo: or, confidering them as quafi of record, the allegation is fufficiently proved by the production of them from the office of the clerk of the papers of the K. B. prifon, with whom they are properly deposited.

the

.