where there is an express contract, that alone must be relied on, and no other can be implied. If it appears that the goods were delivered by the owner to one common carrier, and that he, without the owner's knowledge or authority, delivered them over to another, to be carried, this evidence will support an action brought directly against the latter, with whom the contract will be deemed to have been made through the agency of the former, ratified by bringing the

action.2

1 Robinson v. Dunmore, 2 B. & P. 416; 2 Steph. N. P. 994, 995. 2 Sanderson v. Lamberton, 6 Binn. 129. The declaration against a common carrier is as follows:-"For that whereas the said (defendant) on was a common carrier of goods and chattels for hire; from to ; and being such carrier, the plaintiff then, at the request of the said (defendant) caused to be delivered to him certain goods of the plaintiff, to wit, [here describe them] of the value of to be taken care of and safely and securely conveyed by the said (defendant) as such carrier, from said to said there to be safely and securely delivered by said (defendant) to the plaintiff, (or, to if the case is so,) for a certain reward to be paid to the said (defendant); in consideration whereof the said (defendant) as such carrier then received said goods accordingly, and became bound by law and undertook and promised the plaintiff to take care of said goods, and safely and securely to carry and convey the same from said and there to deliver the same safely and securely, to the plaintiff (or, to ,) as aforesaid. Yet the said (defendant) did not take care of said goods, nor safely and securely carry and convey and deliver the same as aforesaid; but on the contrary, the said (defendant) so negligently conducted and so misbehaved in regard to said goods in his said calling of common carrier, that by reason thereof the said goods became and were wholly lost to the plaintiff."

to

Against a private carrier, charged with the loss of goods by negligence, the declaration in assumpsit is as follows:

"For that on in consideration that the plaintiff, at the request of the said (defendant) had delivered to him certain goods and chattels, to wit, [here describe them], of the value of · -, to be safely conveyed by him from

to for a certain reward to be paid to the said (defendant), he the said (defendant) promised the plaintiff to take due care of said goods, while he had charge of the same, and with due care to convey the same, from - to aforesaid, and there safely to deliver the same to the plaintiff, (or, to as the case may be.) Yet the said (defendant) did not take due care of said goods while he had charge of the same as aforesaid, nor did he with due care convey and deliver the same as aforesaid, but on the contrary so carelessly and improperly conducted in regard to said goods, that by reason thereof they became and were wholly lost to the plaintiff."

§ 211. The defendant is proved to be a common carrier, by evidence that he undertakes to carry for persons generally, exercising it as a public employment, and holding himself out as ready to engage in the transportation of money or goods for hire, as a business, and not as a casual occupation.1 This description includes both carriers by land and by water; namely, proprietors of stage wagons, coaches, and railroad cars, truckmen, wagoners, teamsters, cartmen, and porters; as well as owners and masters of ships and steamboats, carrying on general freight, and lightermen, hoymen, barge-owners, ferrymen, canal-boatmen, and others, employed in like manner.2 But hackney-coachmen, and others, whose employment is solely to carry passengers, are not regarded as common carriers in respect of the persons of the passengers, but only as to their baggage, and the parcels which they are in the practice of conveying. Nor is evidence that the defendant kept a booking-office for a considerable number of coaches and wagons, sufficient of itself to prove him a common carrier.4

§ 212. The contract must also appear to have been made with the plaintiff and by the defendant. If, therefore, the goods were sent by the vendor to the vendee, at the risk of the latter, the contract of the carrier is with the vendee, whose agent he becomes by receiving the goods, and who alone is entitled to sue; unless the vendor expressly contracted with the carrier, in his own behalf, for the payment of the freight; or the property was not to pass to the vendee until the goods reached his hands; in which case the vendor is the proper plaintiff.5 If goods are ordered by the vendee, but

1 Story on Bailm. § 495.

2 Story on Bailm. § 496, 497.

3 Story on Bailm. § 498, 499, 590 - 604.

4 Upston v. Slark, 2 C. & P. 598.

5 Dawes v. Peck, 8 T. R. 330, 332; Hart v. Sattley, 3 Campb. 528; Moore v. Wilson, 1 T. R. 659; Davis v. James, 5 Burr. 2680; Sargent v. Morris, 3 B. & Ald. 277.

no order at all is given in regard to sending them; and yet the vendor sends them by a common carrier, by whom they are lost; the carrier in such case is the agent of the vendor alone, and the action for the loss is maintainable by him only. So, where the goods were obtained of the vendor by a pretended purchase, by a swindler, who got possession of them by the negligence of the carrier; as no property had legally passed to the consignee, the carrier's implied contract was held to be with the vendor alone.2 If the transaction was had with the mere servant of the carrier, such as a driver, or porter, the contract is legally made with the master; unless the servant expressly undertook to carry the parcel on his own account; in which case he is liable.3 And it is sufficient if the goods were delivered to a person, and at a house where parcels were in the habit of being left for the carrier.4

§ 213. If a receipt was given for the goods, it should be produced; and notice should be given to the defendant to produce his book of entries, and way-bill, if any, in order to show a delivery of the goods to him.5 The plaintiff should also prove what orders were given at the time of delivery, as to the carriage of the goods, and the direction written upon the package. If the loss or non-delivery of the goods is alleged, the plaintiff must give some evidence in support of the allegation, notwithstanding its negative character. And in proof of the loss, the declaration of the defendant's coach

1 Coats v. Chaplin, 3 Ad. & El. 483, N. S. And see Freeman v. Birch, Id. 491, n.

2 Duff v. Budd, 3 B. & B. 177; Stephenson v. Hart, 4 Bing. 476.

3 Williams v. Cranston, 2 Stark. R. 82.

4 Burrell v. North, 2 C. & K. 681.

5 Where there are several owners, but the receipt mentions some of them only, it is still admissible evidence for them all, accompanied by proof of title in them all. Day v. Ridley, 16 Verm. R. (1 Washb.) 48.

6 2 Stark. Ev. 200.

7 Tucker v. Cracklin, 2 Stark. R. 385; Griffith v. Lee, 1 C. & P. 110; Day v. Ridley, 1 Washb. 48.

man or driver, in answer to an inquiry made of him for the goods, is competent evidence for the plaintiff.1 In proof of the contents of a lost trunk or box, it has been held that the plaintiff's own affidavit is admissible, where the case, from its nature, furnishes no better evidence.2

§ 214. If several are jointly interested in the profits of a coach or wagon, whether it be owned by one or all, they are jointly liable, though, by agreement among themselves, one finds the horses and driver for one part of the road only, and another for another.3 If the declaration is in assumpsit, a joint contract by all the defendants must be proved, by evidence of their joint ownership, or otherwise. And if the action is in tort, setting forth the contract, the contract itself must be proved as laid; though, where the action is founded on a breach of Common-Law duty, which is a misfeasance, and is several in its nature, as in an action against common carriers, upon the custom, judgment may be rendered against some only, and not all of the defendants.1

§ 215. It is now well settled, that a common carrier may qualify his liability, by a general notice to all who may employ him, of any reasonable requisition to be observed on their part, in regard to the manner of delivery and entry of

1 Mayhew v. Nelson, 6 C. & P. 58. But proof of a loss will not alone support a count in trover. Ross v. Johnson, 5 Burr. 2825.

2 See ante, Vol. 1, § 348; David v. Moore, 2 Watts & Serg. 230. And see Butler v. Basing, 2 C. & P. 613. In Clark v. Spence, 10 Watts, 335, it was thought by Rogers, J., that this rule applied with peculiar force to wearing apparel, and other articles convenient for a traveller, which in most cases, are packed by the party himself, in his own trunk, and which would therefore admit of no other proof. But it has been decided, in a recent case against a railroad company, for the loss of a traveller's trunk, that the plaintiff could not be a witness. Snow v. Eastern R. R. Co. 12 Metc. 44.

3 Waland v. Elkins, 1 Stark. R. 272; Fromont v. Coupland, 2 Bing. 170. And see Barton v. Hanson, 2 Taunt. 49; Helsby v. Mears, 5 B. & C.

504.

4 Bretherton v. Wood, 3 B. & B. 54; Bank of Orange v. Brown, 3 Wend. 158. See ante, Vol. 1, § 64.

parcels, and the information to be given to him of their contents, the rates of freight, and the like; as, for example, that he will not be responsible for goods above the value of a certain sum, unless they are entered as such, and paid for accordingly. But the right of a common carrier, by a general notice to limit, restrict, or avoid the liability devolved on him by the Common Law on the most salutary grounds of public policy, has been denied in several of the American Courts, after the most elaborate consideration;1 and therefore a public notice by stage-coach proprietors, that "all baggage" was "at the risk of the owners," though the notice was brought home to the plaintiff, has been held not to release them from their liability as common carriers.2 Nor does such a notice. apply at all to goods not belonging to any passenger in the coach. But in other American Courts it is held, that such limitations, under proper qualifications and safeguards for securing due notice to the traveller, or the party for whom the goods are to be transported, may be operative and binding on the parties.4

1 But it is admitted in England. See Austin v. the Manchester &c. Railw. Co. 16 Jur. 763; 11 Eng. L. & Eq. R. 506; Carr v. The Lancashire & Yorkshire Railw. Co. 7 Exch. R. 707; 21 Law J. Exch. 261; 6 Monthly Law R. 222; 14 Eng. L. & Eq. R. 340.

2 Hollister v. Newlen, 19 Wend. 234; Cole v. Goodwin, Ib. 251; Jones v. Voorhees, 10 Ohio R. 145; Story on Bailm. § 554, (2d edit.) note. Fisk v. Chapman, 2 Kelly, 349; Farm. & Mech. Bank v. Chaplain Transp. Co. 4 Am. Law Rep. 122, N. S.; Sager v. The Portsmouth Railr. Co. 1 Redingt. 228. The right of a common carrier in England to limit or affect his liability at Common Law, is now restricted by Stat. 11 Geo. 4, & 1 W. 4, ch. 68, to certain enumerated articles, exceeding £10 in value, the nature and value of which must be declared at the time of delivery, and an increased charge paid or engaged; the notice to that effect to be conspicuously posted up in the receiving house, which shall conclusively bind the parties sending without further proof of its having come to their knowledge. But this statute, it seems, does not protect the carrier from the consequences of his own gross negligence. Owen v. Burnett, 2 C. & M. 353.

3 Dwight v. Brewster, 1 Pick. 50. And see Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611. But a special contract may always be shown by the carrier, in avoidance of his general liability. Chippendale v. The Lancashire &c. Railway Co. 15 Jur. 1106. Story on Bailments, § 549.

4 Brown v. The Eastern Railroad Co. S. J. C. Mass. March, 1853,