you com

were affected by knowledge or notice, shall be null and void in so far as they relieve the company from responsibility for the negligence of its officers; but we shall not prevent conditions being made between the company and the parties-as a subsequent part of the clause shows-which shall appear to be just and reasonable by the presiding judge of the court before whom the question comes.' And then in order to make that binding and avoid all discussion, although it be just and reasonable, it shall not be binding on the party unless it be signed by the party who is to be affected by the contract;' and therefore the section will run thus:'General notice to limit the liability shall be null and void; but the parties may make special contracts with the company themselves, provided those contracts are adjudged by the court or judge to be just and reasonable; and whereas on the one hand plain that the monopoly compels the public willingly or unwillingly to carry by that particular conveyance, and to be driven, as it were, into contracts, we will give them the security of the courts to take care that the contracts which are made under that species of compulsion are just and reasonable."" As to what contracts are just and reasonable, it was held, in the above cases, that a condition that a railway company should not be responsible for loss or damage, from any cause whatsoever, to goods conveyed at a special or mileage rate, was reasonable; but that a condition that they should not be liable for the loss, detention or damage of any package insufficiently packed, was unreasonable (u). A condition that "the directors will not be answerable for damage to any horses conveyed by this railway" has been held to be reasonable (x); so also has this condition in the case of cattle sent under the care of a drover to be carried to a railway :-"The company is to be held free from all risk or responsibility in respect of any loss or damage arising in the loading or unloading, from suffocation, or from being trampled on, bruised or otherwise injured in transit, from fire, or from any other cause whatsoever. The company is not to be held responsible for carriage or delivery within any certain or definite time, nor in time for any particular market" (y). The condition must appear on the contract signed. Peek v. The North Staffordshire Railway, 27 L. J., Q. B. 465. A carrier of passengers and goods to the station of a railway company cannot maintain an action against the company, either at common law or under the above statute, for refusing to admit him with his carriage within the precincts of the station, although the company are in the habit of admitting the public generally (2).

(u) Simons v. Great Western Railway, 26 L. J., C. P. 25. See also McAndrew v. The Electric Telegraph Company, 17 C. B. 5; S. C. 25 L. J., C. P. 26.

(x) Wise v. Great Western Railway, 1 H. & N. 63; S. C. 25 L. J., Exch. 258. (y) Pardington v. South Wales Railway,

1 H. & N. 392; S. C. 26 L. J., Exch. 105; see also White v. Great Western Railway, 26 L. J., C. P. 158; and McManus v. Lancashire and Yorkshire Railway, 27 L. J., Exch. 201.

(z) Barker v. Midland Railway, 18 C. B. 46; S. C. 25 L. J., C. P. 184.

IV. Of the Lien of Carriers.

By the custom of the realm, a common carrier is bound to carry the goods of the subject for a reasonable reward, to be therefor paid, by force of which he has a lien as far as the carriage price of the particular goods, but not to any greater extent (a). And where the goods are retained by the carrier for such lien, he is bound to take reasonable care of them, and to deal with them in a reasonable manner (b). Common carriers have in many instances attempted to extend their lien, so as to cover their general balances, or, in other words, they have claimed a general lien. In Rushforth v. Hadfield, 6 East, 519, 7 East, 224, it seems to have been admitted by the court, that the lien claimed by a carrier for his general balance was not founded on the common law, but that such a lien might arise by contract between the owner of the goods and the carrier; and that usage of trade, if general, uniform, and long established, was evidence of such contract (c). But it was resolved, that, as general liens were not to be favoured, the party who sets up such a claim ought to make out a very strong case, and evidence of a few recent instances of detainer by carriers, for their general balance, would not be sufficient to furnish an inference, that the party who dealt with a carrier had knowledge of the usage, and so to warrant a conclusion, that he contracted with reference to it, and adopted the general lien into the particular contract.

A carrier had given notice that all goods would be subject to a lien, not only for the freight of the particular goods, but also for any general balance due from their respective owners: goods having been sent by the carrier addressed to the order of J. S., a mere factor; it was held, that the carrier had not, as against the real owner, any lien for the balance due from J. S. (d). Query, whether, if the notice had been, that all goods, to whomsoever

(a) Skinner v. Upshaw, Lord Raym. 752.

(b) Crouch v. Great Western Railway, 27 L. J., Exch. 345.

(c) In Naylor v. Mangles, 1 Esp. N. P. C. 109, it was contended, that a wharfinger had a lien for his general balance; but Lord Kenyon, C. J., said, that "liens were either by common law, usage or agreement. Liens by the common law were given where a party was obliged by law to receive goods, &c., in which case, as the law imposed the burthen, it also gave him the power of retaining for his indemnity. This was the case of innkeepers; that a lien from usage was a matter of evidence. The usage in the present case had been proved so often, he said, it should be considered as a settled point that wharfingers had the lien contended for." See also Holderness v. Col

linson, 7 B. & C. 112, where the court said: "The onus of making out a right of general lien lies upon the wharfinger. There may be an usage in one place varying from that which prevails in another. When the usage is general and prevails to such an extent, that a party contracting with a wharfinger must be supposed conusant of it, then he will be" bound by the terms of that usage; but then it should be generally known to prevail at that place. If there be any question as to the usage, the wharfinger should protect himself by imposing special terms, and he should give notice to his employer of the extent to which he claims a lien. If he neglects to do so, he cannot insist upon a right of general lien for any thing beyond the mere wharfage."

(d) Wright v. Snell, 5 B. & A. 350.

belonging, should be subject to a lien for any general balance that may be due from the persons to whom they are addressed, he would have any right to retain the goods for the balance due from I. S.?

As liens at law exist only in cases where the party entitled to them has the possession of the goods, if a carrier parts with the possession of the goods, after the lien attaches, the lien is gone. An usage for carriers to retain goods as a lien for a general balance of account between them and the consignees, does not affect the right of the consignor to stop the goods in transitu (e). A carrier who, by the usage of a particular trade, is to be paid for the carriage of goods by the consignor, has not any right to detain them against the consignee for a general balance due to him for the carriage of other goods of the same sort, sent by the consignor (f). If a passenger book himself to go by a particular coach, and leaves his portmanteau, the carrier will have a lien for something, though not for the whole fare (g).

V. By whom Actions against Common Carriers ought to be

brought.

In general the action against a carrier, for the non-delivery or loss of goods, must be brought by the person in whom the legal right of property in the goods in question is vested at the time; for he is the person who has sustained the loss, if any, by the negligence of the carrier, and whoever has sustained the loss is the proper party to call for compensation from the person by whom he has been injured (h). Hence where a tradesman orders goods to be sent by a carrier, as at the instant when the goods are delivered to the carrier, such delivery operates as a delivery to the purchaser, and the whole property (subject only to the right of stoppage in transitu by the seller) vests in the purchaser; he alone can maintain an action against the carrier for any loss or damage to the goods; and this rule holds as well where the particular carrier is not named by the purchaser (i), as where he is (k), for the delivery of goods which were to be sent by some carrier, by the vendor on behalf of the vendee to a carrier, although the vendee did not name one, is a delivery to the vendee (1), and the goods are, immediately upon the delivery to the carrier at the risk of the vendee, although the carrier is to be paid by the vendor (m); and it holds as well in

(e) Oppenheim v. Russell, 3 B. & P. 42. (f) Butler v. Woolcott, 2 B. & P. N. R. 64; and see Small v. Moates, 9 Bingh. 574.

(g) Higgins v. Bretherton, 5 C. & P. 2. (h) Dawes v. Peck, 8 T. R. 330. See also Coombes v. Bristol and Exeter Railway, 27 L. J., Exch. 269; and 28 L. J., Exch.

401.

(i) Dutton v. Solomonson, 3 B. & P. 584. (k) Dawes v. Peck, 8 T. R. 330; 1 Atk.

248.

(1) Dutton v. Solomonson, 3 B. & P. 582. (m) King v. Meredith, 2 Camp. 639.

the case of a carrier by water, as where the goods are conveyed by land. No property, however, passes to the consignee by the consignor's mere delivery to a carrier, the consignee having given no order whatever for the sending (n): so also where goods are sent to a customer for approval, until acceptance no property vests in the consignee: in these cases therefore the action against the carrier for loss is properly brought by the consignor (o). So where a laundress sent linen which she had washed to the owner, by the carrier whom she paid, the carrier having lost it; it was held, that the laundress was the right person to sue: Parke, J., said, "The question is, who employed the carrier, and at whose risk were the goods carried? The plaintiff paid for the carriage. The owner of the linen was not the employer of the carrier, and the risk of the bailee was not over till the goods were delivered. In the case of a complete sale the vendor transmits as agent for the vendee" (p). So if there have been no written contract or acceptance under the Statute of Frauds the vendor is the right person to sue (q).

The

The plaintiff had shipped goods on board the Mercurius, of which the defendant was owner, to be carried from London to Tonningen. The goods were expressed in the bills of lading, to be shipped by order on account of Hesse and Co. of Hamburgh. The ship arrived in the river Eyder, but was prevented from proceeding to Tonningen by the commander of one of his Majesty's frigates, and ordered to return home. After her return, the captain made an affidavit, that he believed the cargo to be Danish property; whereupon the goods were unloaded and delivered over to the Admiralty marshal, and libelled in the Admiralty Court; the plaintiff afterwards recovered them by a proceeding in that court. action was brought to recover the expenses incurred by the suit in the Admiralty. On the part of the defendant it was insisted, that the goods being shipped by order and on account of Hesse and Co., the property vested in them immediately on their being shipped on board the Mercurius. Dawes v. Peck, and Dutton v. Solomonson, were cited. It was also urged, that a recovery by the present plaintiff could not protect the defendant from an action at the suit of Hesse and Co. On the part of the plaintiff it was contended, that there was a distinction between the carrying goods from one part of England to another, and the transporting them beyond sea. That after a delivery of goods to a carrier, to carry them from one part of England to another, the vendor had no property in the goods, but only a right of stopping in transitu; and it was admitted, that if the goods were directed to be sent by a carrier, without specifying the carrier, the delivery to the carrier was a delivery to the vendee; but urged that, in the case of goods sent

(n) Coats v. Chaplin, 3 Q. B. 483.
(o) Swain v. Shepherd, 1 M. & Rob.
223, Parke, J.; recognized in Coats v.
Chaplin, ubi sup.

(p) Freeman v. Birch, 3 Q. B. 492, n. (q) Norman v. Phillips, 11 M. & W. 277; Coombes v. Bristol and Exeter Rail way, 28 L. J., Exch. 401.

abroad, if the goods arrived safe, they were to be paid for: aliter, if they do not arrive. Lord Ellenborough, C. J.: "They are shipped by order and on account of Hesse and Co. I can recognize no property but that recognized by the bill of lading." Plaintiff nonsuited (r).

It is observable that in the case of Davis v. James, 5 Burr. 2680, it was held, that the consignor might maintain the action; but the ground of that decision was, that the consignor had made himself responsible to the carrier for the price of the carriage. So where, by the bill of lading, the captain was to deliver the goods for the consignor, and in his name to the consignee, and at the time of shipment the consignee had no property in the goods, it was held, that an action against the ship-owners for damage done to the goods, must be brought in the name of the consignor; and that, although the consignee had insured the goods and advanced the premiums of insurance before the arrival of the ship (s).

In Moore v. Wilson, 1 T. R. 659, where the action was brought by the consignor, and the plaintiff having averred in his declaration, that the hire was to be paid by him, proof that the hire was to be paid by the consignee was held not to be a variance, on the ground that whatever might be the contract between the vendor and the vendee, the agreement for the carriage was between the carrier and the vendor, the latter of whom was by law liable. Where goods were delivered to a carrier at Exeter, to convey to Falmouth, and there deliver them to an agent, who was to forward them to the consignee abroad; and the carrier detained the goods on the ground of a lien against the agent for his general balance; it was held, that trover might be maintained against the carrier at the suit of the consignor (t). A servant travelling with his master, who has paid for the servant's railway ticket, may sue the railway company in his own name for the loss of his luggage (u). An action lies against the commander of a ship of war who takes the bullion of a private merchant on board, for not safely keeping and delivering it (x). So where the master of a store ship, in the king's service, took in the bullion of a private merchant on freight, from Gibraltar to Woolwich, it was held, that an action lay against him for the loss of the bullion (y).

(r) Brown v. Hodgson, 2 Campb. 36. And now by the 18 & 19 Vict. c. 111, s. 1, the indorsee of a bill of lading, to whom the property in the goods therein mentioned shall pass by reason of such indorsement, has transferred to and vested in him all rights of suit, &c. See Thompson v. Dominy, 14 M. & W. 403; Horrard v. Shepherd, 9 C. B. 297.

(s) Sargent v. Morris, 3 B. & A. 277. (t) Fagliabue v. Wynn, Cornwall Lent Ass. 1813; Wood, B. MSS.

(u) Marshall v. York, N. and B. Railway, 11 C. B. 655; S. C. 21 L. J., C. P.

34.

(x) Hodgson v. Fullarton, 4 Taunt. 787. (y) Hatchwell v. Cooke, 6 Taunt. 577.