By the third section, 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, the person receiving such increased rate of charge, or accepting such agreement, shall, if thereto required, sign a receipt for the package or parcel, acknowledging the same to have been insured (which receipt shall not be liable to any stamp duty); and if such receipt shall not be given when required, or such notice as aforesaid, shall not have been affixed, the mail contractor, stage-coach proprietor, or other common carrier, as aforesaid, shall not be entitled to any benefit or advantage under the act; but shall be liable, as at the common law, and be liable to refund the increased rate of charge.

The fourth section provides, that no public notice or declaration shall limit or in anywise affect the liability at common law of any such mail contractors, stage-coach proprietors, or other public common carriers, for or in respect of any goods to be carried and conveyed by them; but that they 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 (7).

Section sixth provides, that nothing in the act contained shall extend or be construed to annul or in anywise affect any special contract between such mail contractor, stage-coach proprietor, or common carrier, and any other parties, for the conveyance of goods.

By the seventh section, it is enacted, that where any parcel or package shall have been delivered at any such office, and the value and contents declared, and the increased rate of charges been paid, and such parcel or package shall have been lost or damaged, the party entitled to recover damages in respect thereof, shall also be entitled to recover back such increased charges, in addition to the value of such parcel or package.

The eighth section provides, that nothing in the act shall protect any mail contractor, stage-coach proprietor, or, other common carrier for hire, from liability to answer for loss or injury to any goods or articles whatsover, arising from the felonious acts of any

(1) The 5th section renders it sufficient to sue one of several carriers who

are in partnership, &c.

coachman, guard, book-keeper, porter, or other servant in his employ; nor to protect any such coachman, guard, book-keeper, or other servant, from liability for any loss or injury occasioned by his own personal neglect or misconduct.

By the ninth section, such mail contractors, stage-coach proprietors, or other common carriers for hire, are not to be concluded as to the value of any such parcel or package, by the value so declared as aforesaid, but that he or they shall in all cases be entitled to require from the plaintiff proof of the actual value of the contents by the ordinary legal evidence; and that the mail contractors, 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 (m).

In regard to the general effect of the act, we may remark; 1st, that it relates solely to carriers by land; 2ndly, it extends to the particular articles enumerated, only in case their aggregate value exceeds 10l.; 3rdly, that it exempts the carrier from his common law responsibility, as to such goods, (unless the loss arise from the felony of his servants,) only in the event of his affixing a public and conspicuous notice in the receiving office, notifying the extra charges for carrying such valuable articles, or in the event of a special contract; 4thly, that if the notice be affixed, although not seen by the consignor or owner, the carrier is not responsible as to the enumerated description of goods, (if the loss do not arise from the felony of his servants,) unless the value and nature of the goods be made known, and the increased or insurance rate of charge for carriage, or an agreement to pay it, be accepted by the carrier; but the refusal to give on demand a receipt for the goods and extra charge, deprives him of the protection of the act. 5thly, That as to all goods not specifically mentioned in the act; and as to goods of the description therein mentioned, when the value of the latter is not above 10.; the common law liability remains; although such notice be given, or any public notice or declaration be made or given, by the carrier attempting to vary such liability; 6thly, that the act does not preclude the parties from entering into a special contract, as to the conveyance of

(m) By the 10th section, money may be paid into Court in actions against

such carriers, for the loss of or injury to goods.

goods of any description or value; and under the act, the merely giving the public notice, though known to the consignor or owner of the goods, cannot be deemed to constitute a special contract for this purpose; and 7thly, It seems, that if the loss or injury be occasioned by the personal neglect or misconduct of the coachman, guard, bookkeeper, or other servant of the carrier, in a case in which the carrier himself is not responsible, such coachman, &c. may be sued by the owner of the goods for the consequent damage.

It was decided before the statute 1 W. 4, was passed, that the usual carrier's notice afforded no defence, if he were guilty of any misfeasance, or wrongful act, inconsistent with the contract to convey; as if he omitted to forward the goods (n) or sent them by another coach or conveyance than that agreed upon (0); or beyond the place of destination (p); or by an unusual and different route (q). In these cases it was considered that the ground of action was, the carrier's refusal to perform the contract. Although the statute might, even in such cases, protect the carrier, if the goods were of the description therein mentioned, and the owner neglected to insure them according to the public notice, and the action were to recover damages for the loss of or injury to the goods; yet it would seem that the carrier might, under such circumstances, be liable for damages occasioned by the delay or misfeasance, as for the loss of the market, &c., (unconnected with the loss of, or injury to the goods,) provided the value and nature of the parcel were communicated to the carrier, and he accepted the goods for the purpose of carrying them. In such case it would be proper to declare for not carrying according to the directions given, and on the contrary sending the goods by a different route; or for not forwarding, or carrying in a reasonable time; laying a special damage from the delay, &c.

61.

(n) Garnett v. Willan, 5 B. & Ald.

(0) Garnett v. Willan, 5 B. & Ald. 53; Sleat v. Fagg, id., 342.

(p) Bodenham v. Bennett, 4 Price, 31. (q) See Davis v. Garrett, ante, 381. It was also held that the notice gave no protection in cases of fraud or gross neglect, or delivery to a wrong person;

see Lyon v. Mells, 5 East, 428; Brooke v. Pickwick, 4 Bing. 218; 12 Moore, 447, S. C.; Birkett v. Willan, 2 B. & Ald. 356; Langley v. Brown, 1 M. & P. 583; Stephenson v. Hart, 1 M. & P. 357; 4 Bing. 476, S. C. Or if the carrier's servants stole the goods; Bradley v. Waterhouse, M. & M. 154; 3 C. & P. 318, S. C.

6thly. OF Wagers.

The law does not, in general, prohibit wagers (r); and if made on indifferent subjects or questions, however trivial, they are valid, and an action thereon is maintainable against the loser. This was established in Good v. Elliott (s), where the subject of the wager was, whether one S. T. had, or had not, before a certain day, bought a waggon, belonging to D. C.; and which wager three judges, contrary to the opinion of Buller, J., held to be good (†). And a wager on the ages of the plaintiff and defendant is legal (u). And in these cases it is not material that the plaintiff knew, at the time, that he was right in regard to the matter respecting which the wager was laid (x); or that the parties had no interest in the subject matter (x).

But the courts have frequently reprehended these contracts, and expressed their regret that they have ever been sanctioned. And some judges at Nisi Prius have exercised a very extended discretion, in refusing to try actions on wagers, which, although not strictly illegal, have raised questions in which the parties have no interest, and have been of a trifling, ridiculous, or contemptible nature (y). And clearly, wagers are bad; 1st, If they be contrary

(r) The French law is to the following effect:-"La loi n'aceorde aucune action pour une dette de jeu ou pour le paiement d'un pari. Les jeux propres à exercer au fait des armes, les courses à pied ou à cheval, les courses de chariot, le jeu de paume et autres jeux de même nature qui tiennent à l'adresse et a l'exercise du corps, sont exceptées de la disposition précédente, néanmoins le tribunal peut rejeter la demande, quand la somme lui parait excessive."-Code Civil, bk. 3, tit. 12, c. 1. "The law does not allow an action for a debt at

play, or for the payment of a wager. Games proper in the exercise of feats of arms, foot races, horse or chariot races, tennis and other sports of the same nature, which require address and agility of body, are excepted from the preceding ordinance. Nevertheless, the Court may reject the demand, when the sum appears to be excessive." And by the French law, the sum cannot, in any case, be recovered back, if voluntarily paid, unless there was fraud.

(s) 3 T. R. 693.

(1) And see Selw. N. P. tit. Wager (1); Gilbert v. Sykes, 16 East, 161. Aliter if the discussion could affect the interest or feelings of the third parties; post, 396. Declaration on a wager on the weight of hogs; 2 Chitty Pl. 5th ed. 232, a.

(u) Hussey v. Crickitt, 3 Camp. 168. (x) Bland v. Collett, 4 Camp. 157. The wager was, whether a person, with whom the plaintiff had conversed, was Lord Kensington. The defendant, before he finally made the wager, ascertained for a certainty that it was Lord Kingston, not Lord Kensington. Gibbs, C. J., held the wager good.

(y) In many of the cases in which judges have refused to try the causes upon wagers, the contracts were, upon the face of the record, illegal, or induced discussions injurious to third persons; see the cases in the notes (ƒ), (9), (h), (i), and (k), post 395. In these cases, the power to decline all investigation, is undoubted: and no doubt, a judge may, in virtue of his general

to public policy, or are immoral, or in any other respect tend to the detriment of the public; 2ndly, if they affect the interest, feelings, or character of a third person.

1. Wagers on the question of war or peace (z); on the event of an election of a member to serve in parliament (a); on the life of a foreign potentate (Bonaparte) at war with this country (6); on the amount of the hop duties, or other branch of the revenue (c); upon the market price of goods upon a future day (d); or in restraint of marriage (e); are respectively unlawful, because they are contrary to sound policy.

So a wager as to the mode of playing an illegal game (f); or upon a boxing (g), or wrestling (h), match; or a cock (i), or dog (k), fight; is illegal. And it seems, that a wager upon the result of a sparring match at a public exhibition, chiefly maintained to form scientific pugilists and encourage prize fighting, is not sustainable (7). Nor will the courts sanction a wager made to try an abstract question of law, in which the parties have no interest (m): although in one case (n), a wager on the event of an appeal to the House of Lords from the Court of Chancery, was holden good; the parties not having it in their power to bias the decision, and no fraud being intended.

And although a wager, whether Charles Stuart would be king within a certain time (o); and another (p) between two sons, on their fathers' lives; have been holden good; it is probable that the courts would not now sanction contracts of such a description.

superintending power, defer the trial of an action upon a wager, which, though not illegal, is of the unimportant character alluded to in the text. But semble that he cannot absolutely reject a cause upon such a wager; see Bate v. Cartwright, 7 Price, 540.

(z) Allen v. Hearn, 1 T. R. 57, n. (b); Busk v. Walsh, 4 Taunt. 290. (a) Allen v. Hearn, 1 T. R. 56. (b) Gilbert v. Sykes, 16 East, 150. (c) Atherfold v. Beard, 2 T. R. 610; Shirley v. Sankey, 2 B. & P. 130.

(d) Hilberds v. Pettipierre, and Wardle v. Fowler, MS. Comyn on Contr. 2nd ed. 58, n. (p); Bryan v. Lewis, R. & M. 386. All at Nisi Prius, before Abbott, C. J.

(e) Hartley v. Price, 10 East, 22.
(f) Brown v. Leeson, 2 H. Bla. 43.

(g) Egerton v. Furzeman, 613, per Abbott, C. J.

C. & P.

(h) Kennedy v. Gad, M. & M. 225; 3 C. & P. 376, S. C.

(i) Squires v. Whiskin, 3 Camp. 140. (k) Egerton v. Furzeman, 1 C. & P. 613; R. & M. 213, S. C.

(1)'Hunt v. Bell, 1 Bing. 1; 7 Moore, 212, S. C.

(m) Henkin v. Guerss, 12 East, 247; 2 Camp. 408, S. C.

(n) Jones v. Randall, Cowp. 37: Sed Qu.

(0) Andrews v. Herne, 1 Lev. 33; sed vide Gilbert v. Sykes, 16 East, 150; Good v. Elliott, 3 T. R. 697.

(p) Lord March v. Pigot, 5 Burr. 2802; sed vide Hussey v. Crickitt, 3 Camp. 172; Gilbert v. Sykes, 16 East, 162.