wise affect, the liability at common law of any such public common carriers as aforesaid for or in respect of any articles or goods to be carried and conveyed by them; but all such common carriers shall be liable, as at the common law, to answer for the loss of or injury to any articles and goods in respect whereof they may not be entitled to the benefit of the act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding.

By sect. 5. every office, warehouse, or receiving house, used or appointed by such common carrier for receiving parcels, shall be taken to be the receiving house or office of such carrier; and any one or more coach proprietors or carriers may be sued without joining their co-proprietors.

By sect. 6. nothing in the act shall be construed to annul or affect any special contract between such common carrier and any other parties for the conveyance of goods and merchandises.

By sect. 8. nothing in the act shall be deemed to protect any com. mon carrier for hire from liability to answer for loss or injury to any goods 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. [See observations in the judgment in Hinton v. Dibbin, 2 Q. B. 646.]

By sect. 9. common carriers shall be liable to pay only the actual value, as proved, not exceeding the declared value, together with the increased charges paid by the owner.

Upon the construction of the above act it has been held that it extends to all the articles enumerated in the 1st section, although not, within the words of the preamble, "an article of great value in small compass." To entitle a party to recover for loss or injury to any article of such a description, he must give express notice to the carrier of the value and nature of the article. A looking-glass, exceeding the value of 107., was packed up in a case and sent to the carrier's office to be conveyed from London to a house near Lymington. A notice was fixed up in the office, pursuant to the second section of the statute. The words "looking-glass," "keep this edge upwards," were written on the case, but no declaration was made of the nature and value of the article, and no increased rate of carriage paid. The parcel was conveyed from Lymington to its destination on a truck, that being the usual mode in which parcels were conveyed in that part of the country. When the glass was unpacked it was found to be broken. Held, that the carrier was not liable for the damage. Owen v. Burnett, 2 C. & M. 353., S. C. 4 Tyr. 133. The opinion of the carrier as to its real value will not supersede the necessity of a formal declaration of it. Boys v. Pink, 8 C. & P. 361.

Plaintiff sent a parcel, directed to a person in London, to the postmaster of Bradford to be forwarded to Melksham. The postmaster ceived 2d. to book the parcel, and sent it to an inn at Melksham. The innkeeper at Melksham booked the parcel for London, charging 2d. as "booking" for his trouble, and also charging the demand for carriage from Bradford, which he had paid. He forwarded the parcel to London by a mail-coach, of which the defendants were proprietors, and

which used to stop and take parcels at the inn, but did not change horses there. The innkeeper had no express authority from the defendants to take in parcels, and used his discretion in sending them by mail or any other coach. He kept no regular booking office. Held, 1st, that, for the purpose of taking in the above parcel, the inn was a receiving house of the defendants within 1 W. 4. c. 68. s. 5.; and, 2dly, that the plaintiff might properly sue the defendants on a contract with him to carry from Melksham to London. In the same case the defendants pleaded the general issue, and also that the parcel contained property within the description in 1 W. 4. c. 68. s. 1. above the value of 107., that it was not delivered at a receiving house of the defendants, but to their servant, and that plaintiff did not, at the time of delivering the same to such servant, declare the value of the parcel, nor did he ever pay any increased rate of charge for it. To the latter plea the plaintiff replied generally de injuria. The jury found that the house was a receiving house of the defendants, and it appeared that the plaintiff had not declared the value of the goods. Held, that the plaintiff was entitled to a verdict on the second plea, and that the defendants could not treat the plea as one relying only on the non-declaration of value, and reject the rest of it; and that such defence could not be shewn under the general issue. Syms v. Chaplin, 5 A. & E. 634.

Since this act, if articles mentioned in sect. 1. are sent without declaration of value and payment of the increased charge, carriers are not liable, though the loss be occasioned by the gross negligence of their servants. Hinton v. Dibbin, 2 Q. B. 646. And it seems that there is no distinction between the negligence of themselves or their servants; but wilful misfeasance would come under a different consideration. See the argument in that case.

Where the carrier gives notice to the customer that he will not be answerable without payment of a higher charge, and the latter de livers the parcel without payment, this amounts to a special contract to carry on the terms of the notice, within sect. 6. Semb., Wyld v. Pickford, 8 M. & W. 443.

CASE FOR DECEIT.

The causes of action under this head are various. The cases which most commonly occur in practice (besides that of warranty, which has been treated of under the head of assumpsit) are misrepresentation of solvency or character, and misrepresentation of the value of property. In the case of warranty, Not Guilty puts in issue the warranty and unsoundness, but not the sale. Spencer v. Dawson, 1 M. & Rob. 552.

Misrepresentation of solvency, &c.] An action lies for making a false and fraudulent representation of the character or solvency of another, whereby the plaintiff has been induced to give credit to him and has thereby suffered loss. Pasley v. Freeman, 3 T. R. 51.; Pontifex v. Bignold, 3 M. & G. 63. The fraud, as well as falsehood, must be proved; (and, as it seems, on the general issue); therefore where the repre

sentation was made bona fide under a belief of its truth, the plaintiff cannot recover. Shrewsbury v. Blount, 2 M. & G. 475. In order to show bona fides, the defendants or any of them may prove representations made to them by third persons, or by co-defendants, of the truth of the alleged misstatements, whereby they were themselves misled. S. C. Ibid.

By stat. 9 G. 4. c. 14. s. 6. no action lies to charge a person upon or by reason of any representation or assurance made or given relating to the character, conduct, ability, trade, or dealings of any other person, to the intent that such other person may obtain credit, money, or goods [there] upon, unless such representation, &c. be made in writing, signed by the party to be charged therewith.

The defence of the want of a writing, though often pleaded, is open on the general issue. See Lyde v. Barnard, 1 M. & W. 101.

If, instead of suing for the fraudulent misrepresentation, the plaintiff sues for money had and received by reason of it, he cannot prove it unless it be in writing. Haslock v. Fergusson, 7 A. & E. 86. Where defendant stated that the plaintiff might safely trust A. B., because the defendant had the title deeds of an estate of A. B., this was held to be within 9 G. 4. c. 14. s. 6. Swann v. Phillips, 8 A. & E. 457. A representation made respecting the credit of a firm, of which the defendant is a partner, is within the act; such firm being “another person" within it. Devaux v. Steinkeller, 6 New Ca. 84. În Lyde v. Barnard, 1 M. & W. 101., the court were divided on the point whether a representation, that the life estate of A. B. was charged with only three annuities, was a representation relating to the credit and ability of A. B. within the act,

Misrepresentation of the value of property.] Where the vendor of a public-house misrepresented the amount of business done in it, whereby the plaintiff was induced to buy the lease, an action was held to lie, although such statement was not contained in the conveyance or memorandum of the bargain. Dobell v. Stevens, 3 B. & C. 623. So where the misstatement had been made to another person, who communicated it (with the defendant's knowledge) to the plaintiff. Pilmore v. Hood, 5 New Ca. 97. An untrue representation, not embodied in the contract, will not affect its validity, unless it be also fraudulent. Cornfoot v. Fowke, 6 M. & W. 358. But where an agent for the sale of defendant's house erroneously described it as rented at 1007. free from rates, and the plaintiff bought it on the faith of such statement, the defendant knowing it to be untrue, it was held that case lay for the deceit, though defendant had not instructed the agent to make the statement. Fuller v. Wilson, 3 Q. B. 58. The judgment, on a special verdict, in this case was reversed; but on the ground that the verdict did not shew any fraudulent representation either by the defendant or his agent. It was however held, that if the defendant's agent had been guilty of a fraudulent misstatement the defendant would have been liable for it. See Wilson v. Fuller, Ib. 68. From the judgment in this case, and in that of Evans v. Collins, cited 3 Q. B. 78. (n.), it should seem that a mere misstatement, made voluntarily by one who ought not to make any which he does not know to be true, may be a ground of action by a party who is misled by it, though the defendant was not aware of the falsehood of it; and that it is, therefore, not necessary to prove an averment of a scienter in such case. See also Taylor v. Ashton, 11 M. & W. 401.

CASE FOR DEFAMATION.

In an action on the case for slander or libel, the usual heads of evidence are, the speaking of the words or the publication of the libel, the innuendos, the introductory averments, the malice of the defendant in certain cases, and the damage sustained.

Proof of the speaking the words.] Though the plaintiff need not prove the speaking of all the words laid in the declaration, yet it is necessary to prove some material part of them, and it is not sufficient to prove merely equivalent words. Per Lawrence J., Maitland v. Goldney, 2 East, 434. Thus a statement of words spoken affirmatively is not supported by proof of words spoken by way of interrogation. Barnes v. Holloway, 8 T. R. 150.; B. N. P. 5. Where the declaration avers that the defendant spoke certain words, it must be taken to mean that he used them as his own words; and if he repeated them as the words of another, it is a variance. M'Pherson v. Daniels, 10 B. & C. 274.; Bell v. Byrne, 13 East, 554. Where the words laid were, "This is my umbrella, and he stole it from my back door," and the words proved, "It is my umbrella," &c., it was held a variance; the word this importing that the umbrella was present (which in fact it was not). Walters v. Mace, 2 B. & A. 756. Where all the words constitute one charge, they must all be proved. Thus where the words laid were, "He is selling coals at one shilling a bushel to pocket the money, and become a bankrupt to cheat his creditors ;" and the words and become a bankrupt" were not proved, Eyre C. J. held that the words constituted one general charge, and that the variance was fatal. Flower t. Pedley, 2 Esp. 491. Where the words laid were, "S. (the plaintiff') is to be tried at the Old Bailey for," &c., and the proof was of the words, "I have heard that S. is to be tried," &c., this was held a variance, but amendable at Nisi Prius, or by special indorsement under sect. 24. of 3 & 4 W. 4. c. 42. Smith v. Knowelden, 2 M. & G. 561. "I cannot answer for the cleanliness of her person, because she takes snuff;" the words being "I cannot answer," &c., " because I believe she takes snuff," was held a variance. Cook v. Stokes, 1 M. & Rob. 237. An allegation that the defendant said of the plaintiff, "she secreted Is. 6d. under the till, stating these are not times to be robbed," was held to import that the plaintiff, when secreting the 1s. 6d., had used the latter words, and that therefore the allegation did not contain that which was actionable per se, so as to disentitle the plaintiff to full costs where the verdict was under 40s. Kelly v. Partington, 5 B. & Ad. 645. But where the words omitted to be proved do not qualify or affect those proved, the omission is immaterial. Thus, where the words stated were "Ware Hawk; you must take care of yourself there; mind what you are about:" and the plaintiff failed to prove the words "Mind what you are about;" the variance was held immaterial. Orpwood v. Barkes, 4 Bing. 261. See also Rutherford v. Evans, 6 Bing. 451. Words laid as spoken in English are not proved by evidence of words spoken

in a foreign language. Zenobio v. Axtell, 6 T. R. 162. As to the of amendment in such cases, see antè, p. 67.

power

Proof of the label.] A mere omission in setting out part of a libel is not fatal, unless the sense of that which is set out is thereby varied. Tabart v. Tipper, 1 Camp. 353. But where a libellous paragraph contained two references, by which the words appeared to be in fact the language of a third person speaking of the plaintiff's conduct, and those references were omitted in the declaration, it was held that the omission altered the sense of the passage, and that the variance was fatal. Cartwright v. Wright, 5 B. & A. 615. See R. v. Solomon, R. & M. 253. And where the words laid were "My sarcastic friend, by leaving out the repetition," &c., and those proved were, my sarcastic friend MOPO, by leaving out," &c., Lord Ellenborough held the variance fatal. Tabart v. Tipper, 1 Camp. 353. So where the libel on the record imputed to the plaintiff, an engineer, "mismanagement or ignorance," and the words proved were, “ignorance or inattention," this was held a fatal variance. Brooks v. Blanshard, 1 C. & M. 779.; S. C. 3 Tyr. 844. If the omission or addition of a letter does not change the word so as to make it another word, the variance is not material. Per Lord Mansfield, Beech's case, 1 Leach, 159., 3rd ed. Thus, "undertood," for " understood," is no variance. Ibid.

Whether a writing is a libel or not is a question for the jury, and the judge is not bound to give any opinion on it; Baylis v. Lawrence, 11 A. & E. 920.; but the proper course is said to be for the judge to define what a libel is in point of law. Parmiter v. Coupland, 6 M. & W. 105. And it may be defined to be a publication without justification or lawful excuse, calculated to injure the reputation of another by exposing him to hatred, contempt, or ridicule. Per Parke B., ib. A writing may be a libel on a private person, which would not be so on a person in a public character or office; for the acts of public men, which concern the subject, may be lawfully commented upon without malice; but to impute bad or corrupt motives is a libel in either case. Per curiam, S. C. Ib.

So

Proof of publication of libel.] Proof that the libel produced is in the defendant's handwriting is said to be presumptive evidence of publication, so as to throw the proof of non-publication upon him. R. v. Beare, 1 Ld. Raym. 417.; Lamb's case, 9 Rep. 59., b. But see the arguments in R. v. Burdett, 3 B. & A. 717.; and 4. B. & A. 95. printing a libel, unless qualified by circumstances, is said prima facie to be a publishing; for it must be delivered to the compositor, and the other subordinate workmen. Baldwin v. Elphinston, 2 W. Bl. 1038. But this proposition is denied in Watts v. Fraser, 7 A. & E. 223. A libel may be published in a letter to a third person; but the publication of a libellous letter to the plaintiff himself, though it may be the subject of an indictment, is not such a publication as to maintain an action. Phillips v. Jansen, 2 Esp. 624. Where however the libel was contained in a letter sent by the defendant to the plaintiff, proof that the defendant knew that the plaintiff's letters were usually opened by his clerk, is evidence of a publication. Delacroix v. Thevenot, 2 Stark. 63. A letter, containing a libel, was proved to be in the handwriting of the defendant; to have been addressed to a party in Scotland; to have