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agree with certain owners of traction engines to employ them at a certain rate. When the respondents received a notice from Firbank of the amount he wanted, they directed one or other of the owners of traction engines to carry the ballast required, and it is plain it would have to be carried along this road. The respondents gave orders to the different owners of traction engines at different times, and though the carrying out of any one order might not give rise to extraordinary traffic, the carrying out of all the orders did constitute such traffic, and made the respondents liable under the Act. Something was said about excessive weight; but I take it that term is applicable to each body of traffic separately while it is on the road, and that the whole weight carried at different times cannot be added together so as to constitute excessive weight."

It appears that proceedings under this section (23) are to be taken within six months from the date of the certificate of the surveyor (m).

Sect. 12 of the Locomotives Act, 1898, amended sect. 23 of the Act of 1878, by substituting (sub-sect. 1 (c)) the words "by or in consequence of whose order" for "by whose order." Under this section it was held (n) that a person who contracted for the delivery of building materials, knowing that traction engines would be used, but who did not employ or pay the carriers or give directions as to the route or mode of conveyance, was not within the section, or liable for extraordinary expenses. So, also, where a builder ordered bricks from a company, but gave no instructions as to the mode of delivery, and the company contracted for the delivery of the bricks by means of a traction engine and trucks, which in fact caused damage to the roads by excessive weight, it was held that the builder was not liable as the person by or in consequence of whose order the traffic had been conducted (o). But where a council entered into agreements with contractors for the erection of buildings which entailed exceptionally heavy traffic, the council was held liable for the expenses (p). The principle of contributory negli gence has no application in an action under these sections (q).

(m) Poole, &c. Highway Board v. Gunning, 51 L. J. M. C. 49.

(n) Kent C. C. v. Lord Gerard, (1897) A. C. 633.

(0) Egham Rural Council v. Gordon, (1902) 2 K. B. 120; 71 L. J. K. B. 523; 87 L. T. 31.

(p) Epsom Urban Council v. London County Council, (1900) 2 Q. B. 751; 69 L. J. Q. B. 933; 83 L. T. 284.

(q) Hemsworth Rural District Council v. Micklethwaite, 68 J. P. 345.

By sect. 12 (1) (a) of the Act of 1898 the expenses under sect. 23 of the Act of 1878 may be recovered if not exceeding 2507. in the County Court, and if exceeding that sum in the High Court. Under this sub-section it has been held that the jurisdiction of the High Court has not been affected by the giving of jurisdiction up to 250l. to the County Court, but that the action may be brought in the High Court and costs on the High Court scale ordered, even where the amount recovered (in this case 607.) is less than 2507. (r).

Whenever it is intended to commence an action against any person or persons acting in pursuance of a statutory or other public duty, it is necessary to see that the requirements of the Public Authorities Protection Act, 1893, are complied with (s).

In all such proceedings as come within this Act

(a) The action must be commenced within six months from the date of the act or default complained of (t).

(b) Whenever in such an action the defendant succeeds, he is to recover costs as between solicitor and client. Tender of amends before action may be pleaded in addition to any other plea. If after such tender the action is proceeded with, or if after commencement of an action payment is made into Court, and the plaintiff does not recover more than the sum tendered, or paid in, then the defendant shall be entitled to costs as between solicitor and client from the date of such tender or payment into Court. This only applies to an action for damages, and not to a claim for an injunction.

(d) If, in the opinion of the Court, the plaintiff has not, before commencing proceedings, given the defendant a sufficient opportunity of tendering amends, he may be ordered to pay the defendant's costs as between solicitor and client.

There is a saving clause in respect of proceedings taken by any Government Department against any local authority or officer of any local authority.

Chesterfield Rural District Council v. Newton, (1904) 1 K. B. 62.

56 & 57 Vict. c. 61, see Appendix.

See Markey v. Tolworth Joint Hospital, &c., ante, p. 160.

CHAPTER V.

BAILMENT AND CARRIERS.

WITH regard to the responsibility of carriers of goods or passengers, the rules of law differ in the various classes or degrees in which the duty may be undertaken.

A man may undertake to carry either voluntarily or for reward; either as a common carrier or as a carrier by special bargain.

The general principles are discussed in the elaborate judgment of Lord Holt dealing with the law of bailments in the well-known case of Coggs v. Bernard (a).

Bailment consists in the delivery by one person to another, with or without reward, of goods either for use or for safe keeping, or for the purposes of carriage.

Bailments are divided into six classes by Lord Holt, the law as to any one of which may incidentally apply to the ordinary use of any one of the vehicles with which the present book deals.

The following are the six classes :

(1) Depositum.-This is a bare naked bailment of goods delivered by one man to another to keep for the use of the bailor. In such a case, if the bailee be guilty of gross negligence, he will be chargeable, but he is not chargeable for any ordinary neglect.

This rule involves a further rule, that "if a person undertakes to perform a voluntary act, he is liable if he performs it improperly, but not if he neglects to perform it " (b).

It appears that even though the bailee keeps goods entrusted to him with the same degree of care as his own goods, he may nevertheless be guilty of gross negligence so as to render him liable to the bailor (c).

(a) 2 Raymond, 909; Smith's Leading Cases (10th edit.), vol. 1, p. 167. (b) Skelton v. L. & N. W. Rail. Co., L. R. 2 C. P. 631; 36 L. J. C. P.

249.

(c) Doorman v. Jenkins, 2 A. & E. 256.

(2) Commodatum.-This kind of bailment is where the bailor lends goods gratis to the bailee for use, which are to be returned in specie. In such a case the bailee is responsible if he is guilty of the least negligence.

The goods lent must be used only for the purpose and upon the conditions on which they were lent (d). But if, without any negligence on the part of the bailee, the goods are injured by a stranger, then there is no liability on the part of the bailee (e).

The converse case is as follows: in the case of a gratuitous loan of an article the lender is not liable to the borrower, for injury due to a defect in the article, unless the lender was aware of the defect when he lent the article, and unless he concealed the fact from the borrower; the lender is also liable if he is guilty of gross negligence in not informing the borrower of a defect of which he is himself aware (ƒ).

(3) Locatio rei.-The meaning of this term is a lending for hire. In this case the bailee is bound to use the utmost care, "such as the most diligent father of a family uses," and to return the goods when the time for hiring has expired.

In a letting for hire of this nature, where a defendant hired a horse and carriage from the plaintiffs, it was held that he was liable for injuries caused by the negligent driving of his coachman, though acting in disobedience to orders at the time (g).

The following is a converse case: a horse, brougham, and driver were hired by a jeweller from a job-master at an inclusive price; it was held that it was the duty of the job-master to provide a driver who would take ordinary care, and that he was liable for the loss caused to the jeweller by theft from the brougham by a thief who drove the brougham away while the driver left it unattended in the street (h).

(d) Bringloe v. Morrice, 1 Mod. 210; Wilson v. Brett, 11 M. & W. 115. (e) Claridge v. S. Staffordshire Tramways Co., (1892) 1 Q. B. 422; 61 L. J. Q. B. 503.

(f) Coughlin v. Gillson, (1899) 1 Q. B. 145.

(g) Coupé Co. v. Maddick, (1891) 2 Q. B. 413; 60 L. J. Q. B. 676. And

see Dean v. Keate, 3 Camp. 4.

(h) Abraham v. Bullock, 86 L. T. 796; 50 W. R. 626, in the C. A.

(4) Vadium.-This kind of bailment is a pawn, or the giving something to the pawnee for the purpose of securing a debt due from the pawnor.

If a creditor takes a pawn, it is sufficient if he use true (ordinary) diligence, and he will be indemnified in so doing, and, notwithstanding the loss, yet he may resort to the pawnor for his debt.

In case of default of payment at the stipulated time the pawnee may sell or he may sue the pawnor, because the pawn is a mere collateral security. If the pawnee sells and there is a deficiency, the pawnor is still liable for the balance due (i); on the other hand, where there is a balance over and above the amount of the debt on loan, then the pawnor is entitled to it. After payment, the pawnee is bound to return the pawn to the pawnor, and it is the same if there be a tender of the amount due (k). For the general law as to pawnbrokers, see the Pawnbrokers Act, 1872 (i).

(5) Locatio operis faciendi.-This is defined by Lord Holt to be a delivery to carry, or otherwise manage, for a reward to be paid to the bailee. In this kind of bailment there are two classes-first, a delivery to one that exercises a public employment, such as a common carrier, common hoyman, master of a ship, &c.; secondly, a delivery to a private person, such as bailees, factors, and the like.

From bailees in these classes ordinary care only is expected. But cases under this heading (5) will be dealt with more fully when dealing with the liability of common carriers (7).

(6) Mandatum.-This bailment arises where one man acts by commission for another gratis. If in executing this commission he acts negligently, he is answerable.

In the particular case (Coggs v. Bernard) Lord Holt puts the relationship of the plaintiff and defendant in this class. He says, "The bailee having undertaken to manage the goods, and having managed them ill, and so by his neglect a

(i) Jones v. Marshall, 24 Q. B. D. 269; 59 L. J. Q. B. 123; cf. Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93), sect. 22.

(k) Yungmann v. Brieseman, 67 L. T. 642.

(1) Post, p. 179.

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