Q. B. 473. Plaintiff being under contract to deliver coals at a certain time in a distant colony, engaged defendant to convey them, defendant being aware of the contract: held that, on failure of the defendant, he was liable to the extra expense of conveyance by other means, incurred by plaintiff, as special damage. Prior v. Wilson, 8 W. R. 260, H. T. 1860, Q. B. And even where plaintiff was under no contract to deliver, a rise in price of coal at the pit's mouth, between the times when the defendant's ship should have been ready to take the coals on board, and when the plaintiff could obtain another ship to carry them, was held to be prima facie recoverable in addition to extra freight; as, by the custom of the colliery trade, the plaintiff was not able to secure a cargo, till he had vessels to carry it. Featherston v. Wilkinson, L. R., 8 Ex. 122. Where, owing to the delay of a month, in the delivery of cloth by the defendants, which the plaintiff wanted immediately to make up into caps, the plaintiff lost the season, it was held that he could not recover, as damages, the loss of the profit he would have made by the sale of the caps, but that he could recover the amount of depreciation in the market value of the cloth owing to the lapse of the season. Wilson v. Lancashire, &c. Ry. Co., 9 C. B., N. S. 632; 30 L. J., C. P. 232; see also Gt. W. Ry. Co. v. Redmayne, L. R., 1 C. P. 329. So, the plaintiff may recover the difference between the market price of hops, on the day when they ought to have been delivered, and the price when they were available for sale, owing to delay and damage caused by the defendants. Collard v. S. E. Ry. Co., 7 H. & N. 79; 30 L. J., Ex. 393; see also Gee v. Lancashire, &c. Ry. Co., 6 H. & N. 211; 30 L. J., Ex. 11. In an action for not delivering samples in time for exhibition at a show, it was held that damages were recoverable for loss of estimated profits by reason of their not being exhibited, without evidence of the prospect of profits at the particular show. Simpson v. L. & N. W. Ry. Co., 1 Q. B. D. 274.

In order to recover damages for non-sale, owing to delay in carrying, there must have been an actual contract to buy for a price; Hart v. Baxendale, 16 L. T., N. S. 390, Martin, B. Loss of a beneficial sub-contract cannot be recovered without notice to the carrier of the special terms thereof; Horne v. Midland Ry. Co., L. R., 7 C. P. 583; Ex. Ch., L. R., 8 C. P. 131; and it seems that a mere notice of such sub-contract, will not be sufficient, unless it be given under such circumstances as to make it a term of the contract that the carrier will, on breach thereof, be liable for such loss. S. C., L. R., 8 C. P. 139, 141, 145; British Columbia, &c. Sawmill Co. v. Nettleship, L. R., 3 C. P. 499, 509, per Willes, J. So, loss of hire of goods, sent for hire, cannot be recovered unless the carrier had notice that they were sent for that purpose. Hales v. L. & N. W. Ry. Co., 4 B. &. S. 66; 32 L. J., C. P. 292. The plaintiff's delivered to the defendants machinery intended for the erection of a saw-mill at Vancouver's Island; the defendants knew generally of what the shipment consisted; part was lost, so that the mill could not be erected, and the plaintiffs had to send to England to replace the loss: held, that the measure of damages was the cost of replacement in Vancouver's Island, with interest at 5 per cent. upon the amount until judgment. British Columbia, &c. Sawmill Co. v. Nettleship, supra. But in the case of the carriage of goods by ship, damages for loss of market are not recoverable, although the delay was occasioned by defects in the ship. The Parana, 2 P. D. 118, C. A.

Where, by reason of a refusal to carry, or of non-delivery, or delay by a railway company, a carrier, who uses the railway for his parcels, is injured in his own business as a carrier, such injury is too remote to be considered in damages. Semb. Crouch v. Gt. N. Ry. Co., 11 Exch. 742; 25 L. J., Ex. 137. So the hotel expenses of the plaintiff, a commercial traveller, while

Damages.-Costs.-Defence.

579

he was waiting for the goods, which the defendants ought to have delivered, were held to be too remote to be recovered. Woodger v. Gt. W. Ry. Co., L. R., 2 C. P. 318. See further, post, p. 582. A carrier B. contracted with A., to carry A.'s goods, and B. sent them by an independent carrier C., who injured them in transit, whereby B. was compelled to pay damages in an action brought against him by A. B. gave notice to C. of the claim and action, but C. declined to interfere. It was held that B. could not recover from C. the costs of that action. Baxendale v. L., Chatham, & Dover Ry. Co., L. R., 10 Ex. 35, Ex. Ch. Where bales of rags were sent, for carriage, without notice to the carrier that they were damp, and in consequence only, of their being damp, delay in carriage caused them to heat and become worthless; the carrier was held liable to nominal damages only. Baldwin v. Id., 9 Q. B. D. 582.

The cases on the measure of damages are collected and discussed in the notes to Vicars v. Wilcocks, 2 Smith's Lead. Cas., 8th ed., 805.

When the plaintiff has made a false declaration of the value of horses, in order to induce a railway company to carry them on lower terms, and they are injured by the company's negligence, he cannot recover more than the declared value. M'Cance v. L. & N. W. Ry. Co., 7 H. & N. 477; 31 L. J., Ex. 65; 3 H. & C. 343; 34 L. J., Ex. 39, Ex. Ch. The defendants had in this case admitted liability by payment into court; but quære if they were liable at all? See cases collected, infra.

Costs.] As to the effect of the County Courts Act, 1867, s. 5, with reference to costs in actions against carriers, vide ante, p. 277.

Defence.

By Rules, 1883, O. xix., r. 15, the defendant must plead specially all facts not previously stated on which he relies, and must raise all such grounds of defence as if not pleaded would be likely to take the plaintiff by surprise; and r. 17 provides that the defendant shall not deny generally the allegations in the statement of claim. By r. 20 a bare denial denies the making of the contract in point of fact only, and not its sufficiency in point of law. See the rules cited ante, pp. 282, et seq. A defence arising under the Carriers Act, s. 1, ante, p. 566, must therefore be specially pleaded. Syms v. Chaplin, 5 Ad. & E. 634. A carrier may, by his defence, set up the title of a third person who has claimed, and retaken the goods. Sheridan v. New Quay Co., 4 C. B., N. S. 649, 650; 28 L. J., C. P. 58. See Clough v. L. & N. W. Ry. Co., L. R., 7 Ex. 26, Ex. Ch. As to right of master of ship to sell cargo in case of necessity, vide ante, p. 429.

Loss by plaintiff's own default.] It is questionable how far, and under what circumstances, it is a defence that a parcel was lost by the default of the plaintiff himself. It has been considered that where the gist of the action is negligence and non-performance of duty, so as to be founded on tort, rather than contract, this may be a defence. See Webb v. Page, 6 M. & Gr. 196; Martin v. Gt. N. Ry. Co., 16 C. B. 179; 24 L. J., C. P. 209; and Burrows v. March Gas Co., L. R., 5 Ex. 67; Ex. Ch., L. R., 7 Ex. 96. Goods that are brittle, or liable to injury, must be safely packed by the consignor, or the carrier will not be liable for injury done to them in carriage, if he have used due care. Hart v. Baxendale, 16 L. T., N. S. 390, Martin, B. See also Baldwin v. L., Chatham, & Dover Ry. Co., supra, and cases cited ante, p. 562. If the consignor has fraudulently concealed the value and risk from the carrier, in order to pay a lower rate of freight, he can main

tain no action for a loss thus occasioned by his own fault. Gibbon v. Paynton, 4 Burr. 2298; Bradley v. Waterhouse, 3 C. & P. 318; M. & M. 154; Batson v. Donovan, 4 B. & A. 21; see Sleat v. Fagg, 5 B. & A. 347, per Abbott, C. J., and M'Cance v. L. & N. W. Ry. Co., cited ante, p. 579. So, although the consignor, is not in general bound to volunteer information, as to the nature of the goods, yet, if he intentionally make false answers to the carrier's inquiries, there is fraud which avoids the contract. Walker v. Jackson, 10 M. & W. 168, 169, per Parke, B. In cases where this is a defence, the fact should be specially pleaded, unless the particular issue taken, be such as to make the evidence relevant to it.

Letter Carriers.

The postmaster-general is not a common carrier, and he is not liable for the neglect or default of his subordinate officers. Lane v. Cotton, 1 Ld. Raym. 646; 1 Salk. 17; Whitfield v. Le Despencer, Ld., Cowp. 754. But, the postmaster and his servants are each of them liable for their own personal negligence. S. CC.

Where a postmaster detains letters until the payment to him of more than the legal postage, an action for money had and received, for the money so illegally extorted, may be maintained against him; Smith v. Dennis, Lofft, 753; Barnes v. Foley, 4 Burr. 2149; 5 Id. 2711; Smith v. Powditch, Cowp. 182; or, an action on the case for such detention. Rowning v. Goodchild, 3 Wils. 443; 2 W. Bl. 906; Stock v. Harris, 5 Burr. 2709.

Passenger Carriers.

Carriers of passengers stand on a different footing from carriers of goods. They are not insurers of the person, and are responsible only for want of due care. Christie v. Griggs, 2 Camp. 81; 2 Kent. Com. 600; Readhead v. Midland Ry. Co., L. R., 4 Q. B. 379, Ex. Ch. Hence they do not warrant that their carriages are roadworthy, and they are not liable to a passenger for an accident caused by hidden defect in the carriage, which could not be guarded against, in the process of construction, or by subsequent observation. S. C. They are, however, liable for defects in the carriage caused by the negligence of their sub-contractors. See Francis v. Cockrell, L. R., 5 Q. B. 184; Id. 501, Ex. Ch. As to their liability for an accident, caused by the defects in a carriage of another company, sent for transit over their line, see Richardson v. Gt. E. Ry. Co., 1 C. P. D. 342, C. A. If a railway company choose to contract to carry passengers, not only over their own line, but also over the line of another company, either in whole or in part, the company so contracting incurs all the liability which would attach to them, if they had contracted solely to carry over their own line; per Cockburn, C. J., in Gt. W. Ry. Co. v. Blake, 7 H. & N. 991; 31 L. J., Ex. 346; Buxton v. N. E. Ry. Co., L. R., 3 Q. B. 549; Thomas v. Rhymney Ry. Co., L. R., 5 Q. B. 226; Ex. Ch., L. R., 6 Q. B. 266. See also John v. Bacon, L. R., 5 C. P. 437; and cases cited, ante, pp. 564, 565. The issuing by a railway company of a through ticket is evidence of such contract, with the first company. S. CC. But they are not liable for the negligence, or wrongful act of third persons, over whom they have no control. Wright v. Midland Ry. Co., L. R., 8 Ex. 137. A passenger may contract to be carried at his own risk, and the carrier will not then be liable for injury even though caused by negligence; McCawley v. Furness Ry. Co., L. R., 8 Q. B. 57; Gallin v. L. & N. W. Ry. Co., L. R., 10 Q. B. 212; and the condition will exonerate

Passenger Carriers.

581 from liability, any company on whose line the passenger is carried in the course of the journey. Hall v. N. E. Ry. Co., L. R., 10 Q. B. 437. But a passenger who has no notice of a condition, printed on the back of a ticket, taken by him in the usual way, and which has no reference thereto on the face of it, is not bound thereby. Henderson v. Stevenson, L. R., 2 H. L. Sc. 470. Where, however, the ticket consisted of a book of paper coupons, with conditions inside, which would have been seen on opening the book, it was held that the whole book was the contract, and the plaintiff could not reject the conditions although he did not know of them. Burke v. S. E. Ry. Co., 5 C. P. D. 1. See also Watkins v. Rymill, 10 Q. B. D. 178. See further as to conditions on tickets, cases cited post, p. 584.

Where a master takes a ticket for his servant the contract is with the master; and he can sue the carrier for not carrying the servant within a reasonable time. Jennings v. Gt. N. Ry. Co., L. R., IQ. B. 7; where, however, the servant takes the ticket for a journey by himself, although on his master's service, the contract is with the servant and the master cannot sue. Becher v. Gt. E. Ry. Co., L. R., 5 Q. B. 241, vide infra.

In the case of passengers a duty arises on the part of the carrier to convey them with due care even although the contract of carriage was made with another person. Austin v. Gt. W. Ry. Co., L. R., 2 Q. B. 442; post, p. 681. So with respect to the luggage of the passenger. Marshall v. York & Newcastle Ry. Co., 11 C. B. 655; 21 L. J., Ĉ. P. 34; Martin v. Gt. Indian Peninsular Ry. Co., L. R., 3 Ex. 9. But no person not a party to the contract other than the passenger himself can sue. Alton v. Midland Ry. Co., 19 C. B., N. S. 213; 34 L. J., C. P. 292; Becher v. Gt. E. Ry. Co., supra, unless for a pure tort independent of contract. Berringer v. Gt. E. Ry. Co., 4 C. P. D. 163, post, p. 681.

The reason of the difference between the above rules and those relating to the carriage of goods, vide ante, p. 565, may be that the bailor of the goods, if they be injured, may sue for their value, as trustee for the owner, whereas unless the passenger could sue, nothing could be recovered for his loss by injury; and passengers' luggage, as an accessory to the passenger, follows the rule which applies to him. The cases relating to personal injury to passengers are collected under Action for negligence, post, pp. 680 and 697,

et seq.

The mere taking of a passenger's ticket from A. to B. is evidence of a contract to convey the passenger within a reasonable time from A. to B., but not that the train shall arrive at the time it is expected; Hurst v. Gt. W. Ry. Co., 19 C. B., N. S. 310; 34 L. J., C. P, 264; but the publication of the time bills of the company will amount to a promise that a train will leave A. for B. as advertised, for the conveyance of any person who regularly applies for a ticket and tenders the proper fare, although part of the line of railway belongs to a different company; such publication will also render the company liable for damages occasioned to the plaintiff by the representation, if such train do not in fact run; Denton v. Gt. N. Ry. Co., 5 E. & B. 800; 25 L. J., Q. B. 129; or if there be not room in the train for the plaintiff to whom the company have issued a ticket. Gt. N. Ry. Co. v. Hawcroft, 21 L. J., Q. B. 178. Where the time-tables state that " every attention will be paid to insure punctuality so far as it is practicable; but the departure or arrival of the trains will not be guaranteed, nor will the company hold themselves responsible for delay or any consequences arising therefrom," there is a contract to use due attention to keep the times specified as far as reasonably possible, having regard to all the circumstances. Le Blanche v. L. & N. IV. Ry. Co., 1 C. P. D. 286, C. A.

If the company justify their breach of a contract to carry on the ground that the passenger has not complied with the conditions of a bye-law, they

must show that they have strictly observed the bye-law on their part. Jennings v. Gt. N. Ry. Co., ante, p. 581.

An allegation that an omnibus plies between D. and C. is not supported by evidence which shows that the omnibus, though running from D. to C., yet starts from a point beyond D., and runs to a point beyond C. Marshall v. Matson, 15 L. T., N. S. 514, Bramwell, B.

There does not appear to be any obligation, apart from contract, on a passenger carrier to receive passengers, even though there is adequate accommodation. But see 2 Kent, Com. 601, contra. The point was not decided in Benett v. Peninsular, &c. Steam Boat Co., 6 C. B. 775. Even if there be such obligation, special circumstances might warrant the rejection of a passenger; as misconduct, refusal to comply with reasonable regulations, overloading, &c. Kent, supra.

Passenger ships on voyages beyond Europe are regulated by stat. 18 & 19 Vict. c. 119, which particularly applies to the transport of emigrants beyond This act has been amended by 26 & 27 Vict. c. 51. See also 35 & 36 Vict. c. 73, s. 5, and 37 & 38 Vict. c. 88, s. 54.

seas.

Damages.] If, in consequence of the wrongful delay, or erroneous information, of the carrier, a passenger is reasonably obliged to hire another conveyance, or stop a night on the road, the expenses may be recovered; but the jury cannot give general damages for consequent derangement or loss of business, trouble, or inconvenience. Gt. N. Ry. Co. v. Hawcroft; Denton v. Gt. N. Ry. Co., cited ante, p. 581; Hamlin v. Gt. N. Ry. Co., 1 H. & N. 408; 26 L. J., Ex. 20. See Woodger v. Gt. W. Ry. Co., L. R., 2 C. P. 318, ante, p. 579. To determine whether the expenditure so incurred by the plaintiff is reasonable, one test is to consider whether a person in the position of the plaintiff would have been likely to incur it, if the delay had been occasioned by his own fault and not by that of the company. Le Blanche v. L. & N. W. Ry. Co., 1 C. P. D. 286, 313, C. A. per Mellish, L. J. In this case the cost of a special train hired by the plaintiff was held not recoverable. Where a railway company instead of conveying the plaintiff to the station to which she had booked, turned her out on a wet night, where she could get no accommodation or conveyance, and in consequence she had to walk four miles home, whereby she was made ill, and was hindered in her business, it was held that she was entitled to recover damages for the inconvenience she suffered; but not for the illness, or its consequences, as these were too remote. Hobbs v. L. & S. W. Ry. Co., L. R., 10 Q. B. 111. See, however, as to these damages being too remote, the observations in McMahon v. Field, 7 Q. B. D. 591, C. A.

Passengers' luggage.] As respects a passenger's personal luggage, given into the care of the company for carriage, under their control, it seems that a carrier of passengers is liable to the ordinary obligations of common carriers, though there may be no distinct contract for it. 2 Kent, Com. 600; Richards v. L. Brighton & S. C. Ry. Co., post, p. 583; Macrow v. Gt. W. Ry. Co., L. R., 6 Q. B. 612, 618, per cur.; Cohen v. S. E. Ry. Co., 2 Ex. D. 253, 259, per Mellish, L. J. This has, however, been doubted; and in Stewart v. L. & N. W. Ry. Co., 3 H. & C. 135; 33 L. J., Ex. 199, Pollock, C. B., said that a carrier undertakes no responsibility, in respect of the goods of a passenger, beyond that which he undertakes, with respect to the passenger himself. And in respect of luggage which a railway passenger, by his request, takes in the carriage with him, the company are liable for their negligence or wilful misconduct only, and whether the passenger has, or has not, himself been guilty of negligence. Bergheim v. Gt. E. Ry. Co., 3 C. P. D. 221, C.A.; Talley v. Gt. W. Ry. Co., L. R., 6 C. P. 44. But the company are bound, at