12. Every railway and canal company is liable for any damage caused by the neglect, or default, of their servants, in receiving, forwarding, and delivering, animals, and goods, notwithstanding any notice or condition to the contrary which they may have made. They are not however liable for damage done to a horse, or neat cattle, or sheep and pig, to a greater extent than £50, £15, and £2 per head, respectively. Unless (i) Their higher value has been declared at the time the goods are received from the consignor. (ii) An additional charge is paid in respect of the They may make a special contract with the consignor. (i) It is just and reasonable. (ii) It is in writing. (iii) It is signed by the consignor. (a) [NOTE. It has been held that the "reasonable condition," and the "special contract in writing" mentioned in the 7th section of the Railway and Canal Traffic Act are synonymous. (b)] 13. Where goods have been stolen by the servants of the carrier, he is not protected by the "Carriers Act, 1830." (c) 14. Carriers by water, can limit their liability (except where the loss arises from their own negligence) by a special contract, such as the clauses in a charter party or a bill of lading, which provide against loss by fire, dangers and accidents of the seas, rivers, navigation, &c. 15. The owner of a seagoing ship is not liable for damage, happening without his fault. (a) The Railway and Canal Traffic Act, 1854. 17 & 18 Vict. c. 31. (b) 17 & 18 Vict. c. 31, s. 7; Peek v. N. Staffordshire Ry. Co., 8 H. L. C. 473. (c) 1 Will. 4, c. 68, s. 8. (i) For goods damaged by fire on board his ship. (ii) For any gold, silver, watches, jewels, or precious stones, stolen, or embezzled, on board his ship. Unless the shipper has, at the time of loading, declared their value in writing. (d) 16. A shipowner is not liable for damage happening without his fault, to (i) person or (ii) property on board his ship to a greater extent than £15 and £8, respectively, for every ton of the ship's registered tonnage. (e) 17. Carriers by land and sea jointly, by publishing in their booking-office, and printing on the back of their receipt, or freight-note, a notice to the effect that they will not be responsible for damage caused by fire or accident to animals and goods carried by sea, may limit their liability in that respect. (ƒ) 18. Railway companies are bound to make the same charge for carriage to all parties without favour. (g) 19. A railway company, which forwards goods by other lines beyond its own limits, and receives an entire payment for the whole journey, is liable to the consignee, though the goods are lost when in the custody of the other company. Illustration. Goods were delivered at Bath to the Great Western Railway Company, who received the freight for the whole journey, to be carried to Collins at Torquay. The line of the Great Western Railway ended at Bristol, where the goods had to be transferred to the Bristol and Exeter Railway Company; while under the care of the Bristol and Exeter Railway Company the goods were destroyed by fire. In an action against the Bristol and Exeter Railway Company by (d) Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, s. 503. (e) Merchant Shipping Amendment Act, 1862, 25 & 26 Vict. c. 63, s. 54, (f) Regulation of Railways Act, 31 & 32 Vict. c. 119, s. 14. (g) 8 & 9 Vict, c. 20, s. 90, Collins for the value, it was held that the contract had been made with the Great Western Railway Company, and that the Bristol and Exeter Railway Company were not liable. (a) 20. At the end of the transit the carrier is bound to keep the goods a reasonable time for the consignee to claim them in, during which time his liability as an insurer continues. After a reasonable time this extraordinary liability ceases, and he becomes a mere bailee of the goods for hire. Illustration. Heugh & Co., acting on an order supposed to come from the Southwark India-rubber Company, but really sent fraudulently by one Nurse, a former traveller of the company, consigned certain goods by the London and North Western Railway Company to the India-rubber Company. The railway company having tendered the goods at the premises of the India-rubber Company, where they were refused, took back the goods to the station, and sent an advicenote to the India-rubber Company asking for instructions. Nurse called two days after with the advice-note, and a forged delivery order, and the railway company delivered the goods to him. In an action by Heugh & Co., against the railway company, it was held that the railway company at the time of the delivery to Nurse, had ceased to be carriers, and had become involuntary bailees of the goods, and were only bound to act with ordinary care, and that Heugh & Co. could not recover. (b) (a) Collins v. The B. & E. Ry. C., 7 H. L. C. 194. CHAPTER VI. OF CONTRACTS OF INDEMNITY. I. GUARANTIES, § A GUARANTIE is a promise to answer for the debt, default, or miscarriage of another, who is himself primarily liable. For example. Where Jones promises that if Smith will give Robinson credit he will pay Smith's account against Robinson, if Robinson fails to do so. Its essentials 1. It must be in writing and signed by the party to be bound, or there must be a sufficient memorandum of it to satisfy the Statute of Frauds. (c) [See ante, pp. 41, 46, 47.] But the consideration need not appear on the face of the guarantie. (d) [See ante, p. 46.] 2. The third party. (the principal) must be primarily liable. Illustration. Gammon, in consideration that Bird and certain other creditors of one Lloyd, should give up their claims against Lloyd, and that Lloyd's farm should be assigned to Gammon, promised to Bird the amount due to him. Bird sued Gammon for the amount, alleging a guarantie on Gammon's part to pay Lloyd's debt. But the court held that he could not recover, as Lloyd having ceased to be liable, Gammon's promise was not one to pay the debt of a third party. (e) (c) 29 Carl. 2, c. 3, s. 4. (d) 19 & 20 Vict. c. 97, s. 3. (e) Bird v. Gammon, 3 Bing. N. C. 883, 3. The debt, or act, for which the guarantie is given, must be a future and not a past transaction. Illustration. Welch and Adams gave the London and Provincial Bank a letter, in which they promised to indemnify the bank to the extent of £1,000 advanced, or to be advanced, to one Pinney. At that time Pinney was indebted to the bank to the amount of upwards of £1,400. In an action by the bank on this letter, it was held that the sum already advanced amounted to more than the sum which the letter guaranteed; and the indemnification, therefore, being for a past consideration, no action would lie. (a) 4. An offer of a guarantie must be accepted, before it becomes binding on the guarantor. Illustration. Tinkler directed the following letter to Mozley & Son, publishers :-" Gentlemen, Mr. France informs me you are about publishing an arithmetic for him and another person, and I have no objection to being answerable as far as £50.” This letter was sent to Mr. Mozley, who, without communicating with Tinkler, proceeded with the publishing. In an action by Mozley & Son against Tinkler on the letter, the court held that it was only a proposal; which required an answer; and as the plaintiffs had not communicated their acceptance to the defendant no action could be sustained. (b) SRIGHTS AND LIABILITIES OF THE SURETY. 1. The surety is discharged, if without his consent. (i) The original contract is materially altered, or a new contract is substituted for it. Illustration. Harrison agreed with Smurthwaite to (a) Bell v. Welch, 9 C. B. 154. |