PART IV. CLASS XIV. MISCELLANEOUS STATUTES RESPECTING CIVIL ACTIONS [No. I.] 1 W. 4, c. 68.-An Act for the more effectual Protection of Mail Contractors, Stage Coach Proprietors, and other common Carriers for Hire, against the Loss of or Injury to Parcels or Packages delivered to them for Conveyance or Custody, the Value and Contents of which shall not be declared to them by the Owners thereof. [23d July 1830.] WHEREAS by reason of the frequent practice of bankers and others of sending by the public mails, stage coaches, waggons, vans, and other public conveyances by land for hire, parcels and packages containing money, bills, notes, jewellery, and other articles of great value in small compass, much valuable property is rendered liable to depredation, and the responsibility of mail contractors, stage coach proprietors, and common carriers for hire is greatly increased: And whereas through the frequent omission by persons sending such parcels and packages to notify the value and nature of the contents thereof, so as to enable such mail contractors, stage coach proprietors, and other common carriers, by due diligence, to protect themselves against losses arising from their legal responsibility, and the difficulty of fixing parties with knowledge of notices published by such mail contractors, stage coach proprietors, and other common carriers, with the intent to limit such responsibility they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses: Be it therefore enacted, &c., That from and after the passing of this act no mail contractor, stage Mail concoach proprietor, or other common carrier by land for hire shall be tractors, coach liable for the loss of or injury to any article or articles or property of proprietors, and the descriptions following; (that is to say,) gold or silver coin of this carriers not to realm, or of any foreign state, or any gold or silver in a manufactured be liable for or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time-pieces of any description, trinkets, bills, notes of the value of 101., governor and company of the banks of England, Scotland, and Ireland unless delivered respectively, or of any other bank in Great Britian or Ireland, orders, as such, and innotes, or securities for payment of money, English or Foreign stamps, creasd charge maps, writings, title deeds, paintings, engravings, pictures, gold or accepted. silver plate or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs, (1) or lace, or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire or to accompany the person of any passenger in any mail or stage coach or other public conveyance, when the value of such article or articles or property aforesaid contained in such parcel or package shall exceed the sum of ten pounds, unless at the time of the delivery thereof at the office, warehouse, or receiving house of such mail con loss of certain goods above the (1) Hat bodies, made partly of sheep and partly of rabbits' wool, do not come under the description of furs in this act; 6 Mayhew v. Nelson, Car. & P. 58. No. I. tractor, stage coach proprietor, or other common carrier, or to his, her, 1 W. 4, c. 68. or their book-keeper, coachman, or other servant, for the purpose of When any parcel shall be so delivered, an increased rate of charge may be demanded. Notice of the being carried or of accompanying the person of any passenger as aforesaid, the value and nature of such article or articles or property shall have been declared by the person or persons sending or delivering the same, and such increased charge as herein-after mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package (1). II. That when any parcel or package containing any of the articles above specified shall be so delivered, and its value and contents declared as aforesaid, and such value shall exceed the sum of ten pounds, it shall be lawful for such mail contractors, stage coach proprietors, and other common carriers to demand and receive an increased rate of charge, to be notified by some notice affixed in legible character in some public and conspicuous part of the office, warehouse, or other receiving house where such parcels or packages are received by them for the purpose of conveyance, stating the increased rates of charge required to be paid over and above the ordinary rate of carriage as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles; and all persons sending or delivering parcels or packages containing such valuable articles as aforesaid at such office shall be Carriers to give bound by such notice, without further proof of the same having come to their knowledge. same to be affixed in offi ces or ware houses. receipts, acknowledging increased rate. III. Provided always, That when the value shall have been so declared and the increased rate of charge paid, or an engagement to pay the same shall have been accepted as herein-before mentioned, the person receivIn case of ing such increased rate of charge or accepting such agreement shall, if neglect to give thereto required, sign a receipt for the package or parcel, acknowledging receipt or affix the same to have been insured, which receipt shall not be liable to any notice, the party stamp duty; and if such receipt shall not be given when required, or not to be en- such notice as aforesaid shall not have been affixed, the mail contractor, titled to benefit stage coach proprietor, or other common carrier as aforesaid shall not have or be entitled to any benefit or advantage under this act, but shall Publication of be liable and responsible as at the common law, and be liable to refund the increased rate of charge. of this act. notices not to limit the lia pro conveyed. IV. Provided always, That from and after the first day of September bility of now next ensuing no public notice or declaration heretofore made or prietors, &c., in hereafter to be made shall be deemed or construed to limit or in anywise respect of any affect the liability at common law of any such mail contractors, stage other goods coach proprietors, or other public common carriers as aforesaid, for or in respect of any articles or goods to be carried and conveyed by them; but that all and every such mail contractors, stage coach proprietors, and other common carriers as aforesaid shall from and after the said first day of September be liable, as at the common law, to answer for the loss of any injury to any articles and goods in respect whereof they may not be entitled to the benefit of this act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding. (1) A looking-glass exceeding the value of ten pounds, was packed up in a case, and sent to a carrier's office, to be conveyed to the house of S- near Lymington. The proper notice was affixed in the office pursuant to sect. 2, of this act. The words "looking-glass," and "keep this side upwards," were written on the case, but no express declaration was made of the nature and value of the goods, or any increased rate of carriage paid or tendered. The parcel was conveyed from Lymington to S- 's house on a brewer's truck (that being the usual mode of conveyance of parcels in that part of the country) on which it could not be placed in the manner directed; and the glass, when unpacked, was found to be broken. Held that the carrier was not liable for the damage. The act extends to all the articles enumerated in this section, although not within the words of the preamble, "an article of great value in small compass." Owen v. Burnett, 4 Tyr. 133; 2 Cr. & M. 353. No. I. V. That for the purposes of this act every office, warehouse, or receiving house which shall be used or appointed by any mail contractor, 1 W. 4, c. 68. or stage coach proprietor or other such common carrier as aforesaid for the receiving of parcels to be conveyed as aforesaid, shall be deemed Every office and taken to be the receiving house, warehouse, or office of such mail used to be contractor, stage coach proprietor, or other common carrier; and that deemed a reany one or more of such mail contractors, stage coach proprietors, or ceiving house; and any one common carrier shall be liable to be sued by his, her, or their name or coach pronames only; and that no action or suit commenced to recover damages prietor or carfor loss or injury to any parcel, package, or person, shall abate for the want of joining any co-proprietor or co-partner in such mail, stage coach, liable to be or other public conveyance by land for hire as aforesaid. rier shall be sued. VI. Provided always, That nothing in this act contained shall extend Not to affect or be construed to annul or in anywise affect any special contract between contracts. such mail contractor, stage coach proprietor, or common carrier, and any other parties, for the conveyance of goods and merchandizes. VII. Provided also, That where any parcel or package shall have Parties entitled been delivered at any such office, and the value and contents declared to damages for as aforesaid, and the increased rate of charges been paid, and such par- loss may also cels or packages shall have been lost or damaged, the party entitled to recover back recover damages in respect of such loss or damage shall also be entitled extra charges. to recover back such increased charges so paid as aforesaid, in addition to the value of such parcel or package. VIII. Provided also, That nothing in this act shall be deemed to pro- Nothing herein tect any mail contractor, stage coach proprietor, or other common carrier to protect felofor hire from liability to answer for loss or injury to any goods or arti- nious acts. cles whatsoever arising from the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his or their employ, nor to protect any such coachman, guard, book-keeper, or other servant from liability for any loss or injury occasioned by his or their own personal neglect or misconduct. IX. Provided also, That such mail contractors, stage coach proprie- Coach protors, or other common carriers for hire shall not be concluded as to the prietors and value of any such parcel or package by the value so declared as afore- carriers liable said, but that he or they shall in all cases be entitled to require, from only to such the party suing in respect of any loss or injury, proof of the actual value damages as are of the contents by the ordinary legal evidence, and that the mail con- proved. tractors, stage coach proprietors, or other common carriers as aforesaid shall be liable to such damages only as shall be so proved as aforesaid, not exceeding the declared value, together with the increased charges as before mentioned. X. That in all actions to be brought against any such mail contractor, Money may be stage coach proprietor, or other common carrier as aforesaid, for the paid into court loss of or injury to any goods delivered to be carried, whether the value in all actions of such goods shall have been declared or not, it shall be lawful for the for loss of defendant or defendants to pay money into court in the same manner goods. and with the same effect, as money may be paid into court in any other action. XI. That this act shall be deemed and taken to be a public act, and shall be judicially taken notice of as such by all judges, justices, and others, without being specially pleaded. Public Act. Upon application by a defendant in an action of assumpsit, &c. stating that the right in the subject matter is in a third party, the court may order such third party to appear and maintain or relinquish his claim, and in the meantime stay proceedings in such action. [No. II.] 1 & 2 W. IV. c. 58.-An Act to enable Courts of very of money or goods wherein he has no interest, and which are also claimed of him by some third party, has no means of relieving himself from such adverse claims but by a suit in equity against the plaintiff and such third party, usually called a bill of interpleader, which is attended with expence and delay; for remedy thereof be it enacted, &c., That upon application made by or on the behalf of any defendant sued in any of his Majesty's courts of law at Westminster, or in the court of common pleas of the county palatine of Lancaster, or the court of pleas of the county palatine of Durham, in any action of assumpsit, debt, detinue, or trover, such application being made after declaration, and before plea, by affidavit or otherwise, showing that such defendant does not claim any interest in the subject matter of the suit, but that the right thereto is claimed or supposed to belong to some third party who has sued or is expected to sue for the same, and that such defendant does not in any manner collude with such third party, but is ready to bring into court or to pay or dispose of the subject matter of the action in such manner as the court (or any judge thereof) may order or direct, it shall be lawful for the court, or any judge thereof, to make rules and orders calling upon such third party to appear and to state the nature and particulars of his claim, and maintain or relinquish his claim, and upon such rule or order to hear the allegations as well of such third party as of the plaintiff, and in the meantime to stay the proceedings in such action, and finally to order such third party to make himself defendant in the same or some other action, or to proceed to trial on one or more feigned issue or issues (1), and also to direct which of the parties shall be plaintiff or defendant on such trial, or, with the consent of the plaintiff and such third party, their counsel or attorneys, to dispose of the merits of their claims and determine the same in a summary manner, and to make such other rules and orders therein as to costs and all other matters as may appear to be just and reasonable (2). (1) Where an issue has been directed by the court to try the right of contending parties to the property in question, and the intermediate party has paid money into court to abide the event of the Issue, the successful party cannot move to have the money paid out to him until final judgment has been signed. Cooper v. Lead Smelting Company, 9 Bing. 634; 2 Mo. & S. 810; 1 Dowl. 728, S. C. (2) The object of this statute is to give relief, without compelling the party seeking it to have recourse to a bill of interpleader. The act does not take away the right of a party to file a bill of interpleader, for the remedy is merely concurrent. And if a sheriff or stakeholder have filed such a bill, then having made his election, the common law courts will not interfere. Chitty's Gen. P. L. vol. 2, 345. As the statute in express terms is limited to actions of assumpsit, debt, detinue and trover, many cases will arise to which the act will not apply, but resort must be had to a court of equity. Frequently a plaintiff has an election to proceed in an action of trespass or trover; and if he wish to avoid a summary application under the above act, he may do so by issuing his writ, and declaring in trespass. So by declaring in covenant on a lease instead of debt, it would seem doubtful whether the court could interfere under the terms of the act, and case and replevin are certainly not actions within the act. Ibid. 346. It has been held that the statute does not extend to equitable claims; Sturges v. Claude, 1 Dowl. 505; but such a construction does not seem necessarily to arise from the words of the act. The provisions of the act are two-fold; first, such as relate to persons against whom actions have been brought for the recovery of money or goods, in which they have no interests, which are claimed by some third party; and second, such as are intended to afford relief to sheriffs and other officers in execution of process against goods and chattels. With reference to the persons entitled to the benefit of the act, a party, who by his own act is placed in a situation to be sued, cannot call upon the court to substitute another defendant in his II. That the judgment in any such action or issue as may be directed by the court or judge, and the decision of the court or judge in a summary manner, shall be final and conclusive against the parties, and all persons claiming by, from, or under them. No. II. 1 & 2 W. 4, c. 58. Judgment and decision to be final. stead; 9 Bing. 82; and a person who has paid over the proceeds to the execution creditor; Anderson v. Calloway, 3 Tyr. 237; 1 C. & M. 182, S. C.; will not be relieved under this act; and a defendant who is sued for the recovery of property in his possession, in which he has no interest, but which is claimed by a third party, cannot apply to be relieved under the statute against the claims of the plaintiff and such third party, if he has an indemnity from the claimant; and the court will discharge a rule obtained for that purpose, with costs. Tucker v. Morris, 1 C. & M. 73; 1 Dowl. 639, S. C. A lien, however, attaching upon the goods in dispute, and which must be satisfied by the party who ultimately turns out to be entitled to them, does not prevent the party who hold the goods from applying to the court for relief. Cotter v. Bank of England; 3 Mo. & S. 180; 2 Dowl. 728, S. C. But the case of a wharfinger who claims a lien in goods for wharfage, &c., which attaches only on one of the parties by whom the goods are claimed is not within the act. 2 Mo. & S. 131; 9 Bing. 84. Goods consigned to A., and warehoused in the London docks, were claimed by B. The Dock Company refused to deliver them to A., without an indemnity, whereupon A. brought trover, with counts for special damage for the detention. The company applied for relief under this act. The court held that B., who did not appear after due notice, was barred of his claim against the company, but that the statute did not preclude A. from proceeding to recover for his special damage, if any, and made a rule, that on the company undertaking to deliver up the goods, if A. accepted them, his action should be discontinued on payment of costs by the company; but if he chose to proceed, the count in trover should be struck out, and he should proceed for the special damage only. Lucas v. London Dock Company, 4 B. & Ad. 378. The court cannot relieve a stakeholder until action brought against him and declaration; but if acting with faith, he will be allowed his costs out of the fund in dispute, which will be ultimately paid by the unsuccessful party. Parker v. Linnett, 2 Dowl. 562. A person claiming, but not a party to the rule, cannot be heard upon a rule obtained by the sheriff under the interpleader act; and if called upon in one character, he cannot appear in another. Where a landlord gives notice of his claim for rent in proper time, the sheriff ought to pay him, otherwise he will be subject to the landlord's costs of appearing. Where the rule called upon the assignees of a bankrupt, who claimed under a fiat, afterwards superseded, the sheriff was held not liable to pay the costs of the assignee's appearance. Clarke v. Lord, 2 Dowl. 55. Where the sheriff took goods under an execution, and the defendant gave the sheriff notice that the goods were the property of A., the sheriff having obtained a rule under the interpleader act, and A. not appearing to show cause, the court made the rule absolute for barring A.'s claim, and made the defendant pay the costs of the sheriff's application. Lewis v. Eicke, 4 Tyr. 157; 3 C. & M. 321; S. C. Claimants neglecting to appear under the interpleader act are precluded by the terms of rule from enforcing their claim. Ford v. Dillon, 2 Nev. & Man. 662. A claimant under the interpleader act may appear without taking copies of the sheriff's affidavits. Mason v. Kedshaw, 2 Dowl. 595. Where an action in the Common Pleas and also in the King's Bench is brought against a party, he must obtain rules in both courts under the interpleader act. If part of the sum claimed has been paid to one of the contesting parties, he must pay it into court before he can have relief under the interpleader act. Allen v. Gilby, 3 Dowl. 143. No rule for interpleading will be granted after a suit has been stayed by injunction. Arayne v. Lloyd, 1 Bing. N. C. 720. Where an issue is directed to be tried between an execution creditor and a claimant, brought before the court by the sheriff under the act, but the claimant refuses to try, and abandons his claim, he will be liable to pay the execution creditor's costs down to the time of the claim being abandoned, and of applying to take the money paid in by the sheriff out of court. Wells v. Hopkins; Bragg v. the Same, 3 Dowl. 346. The rule under the first section of the act cannot be drawn up for a stay of proceedings, unless notice has been given. Such a rule may be drawn up to show cause at chambers. Smith v. Wheeler, 3 Dowl. 431. As to Costs.-Where the applicant has acted bona fide, his costs will in the first instance be directed to be paid out of the fund or proceeds of the goods in dispute, to be repaired by the party ultimately unsuccessful. Duear v. Macintosh, 3 M. & S. 174; 2 Dowl. 730, S. C.; Cotter v. Bank of England, 3 M. & S. 180. When a claim is made by one on behalf of another to goods seized by the sheriff in execution, and upon a rule being obtained under this act neither party appears to show cause, the plaintiff is not entitled to receive his costs from the sheriff, but the plaintiff and sheriff are both entitled to their costs from the claimant or his agent, upon a rule to show cause. Philby v. Ikey, 2 Dowl. 222. Where the sheriff applies, but the claimant does not appear, the judgment creditor is entitled to have his costs from the claimant, but the sheriff has no costs. If the rule do not pray for costs, the order upon the claimant is only conditional, unless he shows cause within four days. Perkins v. Fenton, Ib. 108. L L |