against a carrier for negligently driving his cart, so that a pipe of wine burst and was lost, it would be good evidence for the defendant, that the wine was upon the ferment, and when the pipe burst he was driving gently. Farrar v. Adams, E. 10 Ann. Per Holt, at Guildhall, Salk. MSS.

So where the defendant's hoy coming through bridge, by a sudden gust of wind was drove against the bridge and sunk, *Pratt, C. J. held [70] the defendant not liable; the damage being occasioned by the act of God, which no care of the defendant could foresee or prevent: and as to the evidence given by the plaintiff, that if the hoy had been better it would not have sunk with the stroke received, the C. J. said, no carrier was obliged to have a new carriage for every journey; it is sufficient if he provide one which without any extraordinary accident (such as this was) will probably perform the journey. (Amies v. Stevens, M. 5 Geo. 1. Stra. 128.) But nothing is an excuse except the act of God and the king's enemies, (a) and therefore in an action against such a carrier, where the goods were spoiled by water, the defendant proving, that when the goods were put on board, the ship was tight, and that the hole through which the water came had been made by a rat eating out the oakum,

the custom of the realm, a count in trover may be joined. Per Buller, J. in in Brown v. Dixon, 1 T. R. 274; and and it is a rule, that where the same plea may be pleaded, and the same judgment given on two counts, they may be joined in the same declaration. Ibid.

(a) The act of God means something in opposition to the act of man. The law presumes against the carrier, unless he shews the loss was occasioned by the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightening, &c.

But the king's enemies here meant are public enemies, and not traitors or felons. Morse v. Şlue, 2 Lev. 69. Barclay v. Higgens, cited 1 T. Rep.

33.

So are the acts of God generally confined to storms, tempest, and lightening. Amies v. Stevens, Stra. 128. Case of Gravesend Barge, 1 Rol. Rep. 79.

But even these will not excuse a hoyman who puts to sea in tempes

Therefore a carrier is liable for goods burnt in his warehouse at Weyhill fair, it being stated in the case that the fire did not happen by. lightening. Forward v. Pittard, 1 T, Rep. 27.

So where common carriers from A. to B. charged and received cartage of goods from a warehouse at B. (where they usually unloaded) to the house of the consignee in B. but whilst they remained in the warehouse at B. they were burnt, the carriers were held liable, though the profits of the cartage were allowed to another, and the consignee knew it. Hyde v. Trent and Mersey Navigation, 5 T. Rep. 389. But where the goods are not in defendant's custody as a carrier, and are left after their arrival in defendant's warehouse for plaintiff's convenience, till forwarded (without reward) defendant will not be liable, though the goods are burnt. Garside v. Same, 4 T. Rep. 391.

was

was holden to be no excuse.-Dale v. Hall, M. 24 Geo. II. 1 Willes, 281.

If I send my servant with the goods on board the vessel, and they are lost, the carrier is not liable; for they are to be considered not in the possession of the carrier but of the servant.-East India Company v. Pullen, H. 12 Geo. I. Stra. 690. (a)

If a carrier having convenience to carry goods, being offered his hire refuse to carry them, an action will lie against him.-Jackson v. Rogers, M. 35 Car. II. 2 Show. 327.(b)

Note. All persons carrying goods for hire, come under the denomination of common carriers: (c) but if the driver of a stage coach, which only carries passengers for hire, lose the goods of his passengers, the master is not liable; (d) for no master is chargeable with the act of his

servant, but when he acts in execution of the authority given him by his master; (a) and then the act of the servant is the act of his master; and in such case the action may be brought against either the master or the servant; and as the action may be brought against either the master or the servant, so either may bring assumpsit for the money for the carriage.-Middleton v. Fowler, M. 10 W. III. Salk. 282.

Note. In the case in Salk. it is holden, that if the action be brought against the masters, it must be brought against them all; and if brought against one only, advantage may be taken of it on evidence. But according to later determinations, that matter can only be pleaded in abatement.-Rice v. Shute, B. R. E. 10 Geo. III. 5 Burr. 2611. 2 Bla.

692.

If the carrier ask what is in the box, and is told silk; yet in truth if there be money, he shall be answerable for it if lost, unless he made special acceptance; but this intended cheat upon the carrier will be a good reason for the jury to give less damages.-Drinkwater v. Quennel, T. 11 & 12 Geo. II. C. B. Sed vide post, Kenrig v. Egleston, M. 24 Car. II. Aleyn, 93.

If a bag sealed be delivered to a carrier, and said to contain £200, [71] and the carrier give a receipt for so much, (b) when in fact it contains £400, if the carrier be robbed, he shall be answerable only for £200, for his reward extends no further, and it is that makes him liable.Tyley v. Morrice, 4 W. III. Carth. 485. (c)

(a) Goods were delivered to a person standing at a warehouse-door in an inn-yard, who was employed in loading another waggon at the time, but the deliverer did not know even the name of such person. This was held not a sufficient delivery to charge the waggoner, although the deliverer told the person whom he saw, by what waggon the goods were to go, and asked the owner's name. Per Ld. Kenyon, at Westminster Sittings after Mich. Term, 30 Geo. 3. MS. Ca.

(b) Which in fact amounts to a special acceptance.

(c) But if a box be delivered to a carrier generally, and he so accepts it, he is answerable, though the party did not inform him there was money in it; if, however, the carrier enquires, and the owner says there is no money in it, or if the carrier ac

An

cepts it provided there be no money
in it, the carrier is not liable. Tich-
borne v. White, Stra. 145. Et vide
Gibbons v. Payton, sup.

The taking of hire by a common
carrier is an implied undertaking, for
the safe custody and delivery of the
goods, and he shall therefore be re-
sponsible for their value if he is
robbed of them, 1 Inst. 89; and
equally so, though he be neither a
carrier or take reward, if he under-
take to carry safely and securely.
Coggs v. Barnard, Raym. 909. And
so though plaintiff, for greater cau-
tion, send a servant with the goods,
who pays a person to guard them.
Robinson v. Dunmore, 2 Bos. & Pull.
416. Sed vide East India Company v.
Pullen, sup. p. 70.

In Hutton v. Osborne, M. 1730,
MS. Ca. plaintiff declared specially

that

An action was brought against the proprietors of a stage-coach, for not safely carrying £100, delivered to their book-keeper in a bag, from B. to L. and on the trial it appeared that the money was put into a bag, and carried by the plaintiff's servant to the defendant's house, and there delivered to their book-keeper, who asked no questions about the contents of the bag, but took it as a common parcel, and was paid for it as such by the servant, who gave him no information about it; the money was lost; and the servant, on his cross examination on the trial, swore that he received no particular instructions from his master about the carriage, but only to deliver the parcel to the book-keeper, and pay what was demanded of him for the carriage: the defendants proved that an advertisement had been put into the country newspaper once every month for two years together, concerning the carriage of parcels by this stage-coach, with a N. B. at the bottom of it, that the proprietors would not be answerable for any money, plate, jewels, writings, or other valuable goods, unless they were entered as such, and paid for accordingly; and that this paper was taken in at the house where the plaintiff lodged, who was frequently seen with it in his hand, and appeared to be reading it: (a)

the

that defendant had undertaken to carry a hare, but he carried it so negligently that it was lost. Defendant demurred, 1st, for that plaintiff had not declared on the general custom of the realm relating to carriers, and therefore defendant must be deemed a private person, and if so, there being no consideration, it was nudum pactum; and, 2dly, that plaintiff had not set forth a delivery of the hare, upon which the promise was made, and for the breach of which the action was brought. The court admitted first that defendant was a private person, but said, if he voluntarily undertake, he must answer for his negligence; and, 2dly, that the delivery of the hare was implied, from the statement that it was carried part of the way, and as to the breach of promise, the action was brought for the loss of the hare, and the promise was only inducement. Judgment for plaintiff.

(a) The general responsibility of common carriers in all cases (except as the acts of God and the king's

public enemies) has induced them to make special contracts for the carriage of goods beyond a certain value, at a premium proportionate to the risk, the basis and extent of which special contracts are declared by public notices, which carriers themselves have generally given, to limit their responsibility, and hence they seem to have laid down a law for themselves; but as their notices differ in form, and some of them are written in very ambiguous terms, no general rule can be laid down as a guide to the public, and put all future questions on this subject at rest by one solemn decision of the court. Until the legislature, therefore, shall in its wisdom declare what sort or form of notice shall be considered as the standard between carriers and the public, every case must necessarily be determined upon its own peculiar circumstances, and upon the construction of the court upon each distinct form of notice. At present it is the practice of carriers to insert their notices in the public

papers

the court of K. B. held that the defendants were not liable to answer for this money; for a carrier is only liable in respect of the reward which he receives:

papers, to distribute hand-bills, to put up painted boards in their own offices, and otherwise, in the most conspicuous manner, to declare to what extent they will hold themselves liable, in order that the public may be generally informed of the nature of their special acceptances and undertakings; but these notices unfortunately are too variant; they are not uniform, nor framed by the common consent even of the carriers themselves, for the provisions of some go entirely to discharge the liability of the carrier, unless the terms of the notice are complied with, as in Clay v. Willan, 1 H. Bla. 298. Hutton v. Bolton, ibid. 299 (n.); and others limit the responsibility of the carrier to a certain sum, if the conditions are not complied with, as in Clarke v. Gray, 6 East, 564.

The validity of these notices, however, was questioned in Nicholson v. Willan, 5 East, 507, where it was insisted that they were contrary to the policy of the common law, and that it was the duty of carriers, if their reward was not adequate to their risk, to make special acceptances of the goods in such cases, at a rate proportionate to their value. But Lord Ellenborough, C. J. considering the long time during which the practice of making special acceptances had prevailed, and been countenanced by the courts, and the legislature having also sanctioned them by rejecting a bill proposed to narrow the carrier's responsibility in certain cases, the house having deemed such a measuse unnecessary, in regard that carriers were competent to limit their own responsibility, and considering also that there was no case in which the right of a carrier thus to limit his own responsibility by special contract, had ever been denied by express decision, his lordship said the court could do no otherwise than sustain such a right, however subject

to abuse or productive of inconvenience, leaving it to the legislature to apply such a remedy as the evil may require.

It is submitted, however, that though the house may not entertain a bill to limit the responsibility of carriers under their special contracts, yet it would be a salutary measure if all carriers were compelled by law to adopt one and the same form of notice.

In an action against the proprietor of a stage-coach, for the value of a broach and ring, value £1. 128. the delivery at the office, the proper packing, and the non-arrival were proved. The defendant proved a notice, written on a large board in his office, that he would not be answerable for plate or jewels, of however small a value, unless entered and paid for as such. The plaintiff then proved that the defendant had circulated hand-bills, containing a list of his several coaches, and concluding with a memorandum, " that he would not be answerable for any article above the value of £5, unless entered as such and paid for accordingly." And Lord Ellenborough said, that the circulation of these papers dispensed with any necessity to attend, to the notice in the office, and plaintiff recovered. Cobden v. Bolton, 2 Camp. 108. Vide Nicholson v. Willan, and Clarke v. Gray, sup. S. P.

Again, in an action against a carrier for the loss of a trunk, the defence was, that the trunk was above the value of £5, and had not been entered and paid for as such, according to a notice for that purpose. The notice was by a hand-bill, stating in large print the advantages to be derived from the defendant's waggon, and, in a small character at the bottom, that the owner would not be answerable for goods above the value of £5, unless entered as such, and paid for accordingly. Per Ellenborough,