does not affect the right of the consignor to stop the goods in transitu. A carrier (y) 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. If a passenger (z) 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.

IV. 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 (a). 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 (b) (7), as where he is (c); and it holds as well in the case of a carrier by water, as where the goods are conveyed by land: but it has in no case been held that the property passed to the consignee by the consignor's mere delivery to

(y) Butler v. Woolcott, 2 Bos. & Pul. N. R. 64; and see Small v. Moates, 9 Bingh. 574.

(z) Higgins v. Bretherton, 5 C. & P. 2. (a) Dawes v. Peck, 8 T. R. 330; 1 Atk.

248, S. P.

(b) Dutton v. Solomonson, 3 Bos. & Pul. 584.

(c) Dawes v. Peck, 8 T. R. 330; 1 Atk.

248.

(7) Delivery of goods by the vendor, on behalf of the vendee, to a carrier, although not named by the vendee, is a delivery to the vendee. Dutton v. Solomonson, 3 Bos. & Pul. 582. 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. King v. Meredith, 2 Campb. 639. The vendor is not bound to enter and insure the goods with the carrier as above the limited value, without instructions for that purpose. Cothay v. Tute, 3 Campb. 129. But the delivery to the carrier ought to be in such a manner, as to furnish the purchaser with a remedy over against the carrier, in case of loss. Buckman v. Levi, 3 Campb. 414. See also Clarke v. Hutchins, 14 East, 475.

a carrier, the consignee having given no order whatever for the sending (d); and where goods are sent to a customer for approval, as until acceptance no property vests in the consignee, the action against the carrier for loss is properly brought by the consignor (€).

The plaintiff had shipped goods (f) on board the Mercurius, of which the defendant was owner, to be carried from London to Tonningen. The goods, (as appeared by an admission on the part of the plaintiff,) 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. The 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 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.

It is observable that in the case of Davis v. James, 5 Burr. 2680, it was holden, 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

(d) Per Wightman, J., in Coats v. Chaplin, 3 Q. B. 483; 2 G. & D. 552, post, p. 429.

(e) Swain v. Shepherd, 1 M. & Rob.

223, Parke, J.; recognized in Coats v. Chaplin, ubi sup.

(f) Brown v. Hodgson, 2 Campb. 36.

holden (g), 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. A laundress sent linen, which she had washed, to the owner, by the carrier, whom she paid. The carrier having lost it, it was holden (h), that the laundress was entitled to sue the carrier for the loss; for she had a special property, which had not passed from her. The traveller of M., a tradesman residing in London, ordered goods for M., of plaintiff, a manufacturer at Paisley. No order was given as to sending the goods: plaintiff gave them to defendant, a carrier, directed to M., to be taken to him, and also sent an invoice by post to M., who received it. The goods having been lost by defendant's negligence, and not delivered to M., it was holden (i) that defendant was liable to plaintiff. 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 holden 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 holden, that trover might be maintained against the carrier at the suit of the consignor (k). 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 (7). 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 holden (m), that an action lay against him for the loss of the bullion.

V. Of the Declaration, p. 429; and Pleading under New Rules, p. 433.

FORMERLY the declaration in actions against common carriers stated their employment as common carriers (n), their liability by the custom of the realm, a delivery to, and acceptance by the defendants of the goods to be carried, for a reasonable hire or reward, concluding with the loss or damage to the goods; but the modern practice is not to declare in this form, but in assumpsit (8), and (g) Sargent v. Morris, 3 B. & A. 277. (h) Freeman v. Birch, 3 Q. B. 492, n. (i) Coats v. Chaplin, 3 Q. B. 483; 2 G.

& D. 552.

(k) Tagliabue v. Wynn and another,

(8) It

Cornwall Lent Ass. 1813; Wood, B. MSS. (1) Hodgson v. Fullarton, 4 Taunt. 787. (m) Hatchwell v. Cooke, 6 Taunt. 577. (n) Herne's Plead. 76. Vid. Ent. 37, 38.

may be observed, however, that where the circumstances of the

not to state either the employment of the defendants as common carriers, or the custom of the realm (9) as to their liability. This form of declaration has prevailed since the decision of Dale v. Hall, M. T. 1750, in which it was settled, that it did not make any difference, whether the plaintiff declared on the custom, or more generally in assumpsit: for, by stating that the defendant carried for hire, it would appear that the defendant was a common carrier, and then the law would raise the promise from the nature of the contract. But although the plaintiff is not bound to allege the custom, yet he must produce sufficient evidence to bring his case within the custom (0).

The advantage resulting to the plaintiff from declaring in as

(0) Per Lord Hardwicke, C. J., in Boucher v. Lawson, H. 9 Geo. II. B. R. Ca. temp. Hardw. 199.

case require a count in trover to be added, the ancient form of declaration is adhered to, or (what is more usual) a concise form, analagous to the ancient form, and founded on a breach of duty, is adopted. It is worthy of remark, that Denison, J., said in Dale v. Hall, B. R. H. 24 Geo. II. MSS., that where the action was founded on the custom, it was ex contractu, and that trover and an action on the custom could not be joined; and in Boson v. Sandford and another, Salk. 440, the court held, that an action, charging* the defendants with a breach of their duty as carriers, was not an action ex delicto, but ex quasi contractu, and on this ground they decided, that the action being brought against two of four partowners of a ship could not be sustained, although the defendants had not pleaded this matter in abatement, but had relied on the general issue, not guilty. This case, however, as to the taking advantage of the omission of some of the partners on the general issue, has been overruled in Rice v. Shute, 5 Burr. 2611, and in subsequent cases; and as to the form of the action, Boson v. Sandford, was overruled in Dickon v. Clifton, 2 Wils. 319, which was recognized by Lord Ellenborough, C. J., delivering the opinion of the court in Govett v. Radnidge, 3 East, 62. In an action on the case for refusing to carry goods, it is sufficient to aver in the declaration that plaintiff was ready and willing, and then offered to pay defendant for the carriage, &c., and an actual tender is not necessary. Pickford v. Grand Junction Railway Company, 8 M. & W. 372. See Jones v. Tarleton, 9 M. & W. 675.

(9) "The custom of the realm is the law of the realmt, and consequently it need not be set forth in the declaration." Per Denison, J., in Dale v. Hall, MSS. and per Lord Hardwicke, C. J., in Boucher v. Lawson, Ca. Temp. Hardw. 199. See also Hargrave's Co. Litt. p. 89, a, n. 7. “It seems not only unnecessary, but even improper to recite the custom in the declaration, because it tends to confound the distinction between special customs, which ought to be pleaded, and the general custom of the realm, of which the courts are bound to take notice without pleading."

* See the Declaration, 2 Show. 478, and Carth. 158.

† 1 Inst. 115, 6; Hob. 18.

sumpsit is, that he may join the common counts with the special counts in assumpsit, if he has other and distinct (p) causes of action to which they are applicable. The inconvenience which arises from declaring in assumpsit is, that it lets in a plea of abatement for want of joining all the parties, and it excludes the right to join a count in trover. If the plaintiff is desirous of avoiding this inconvenience, he may either pursue the ancient method of declaring with a recital of the custom, or he may adopt a more general form, (omitting the recital of the custom,) and allege his gravamen as consisting in a breach of duty arising out of an employment for hire, and may consider that breach of duty as a tortious negligence. But under the new rules, H. T. 4 Will. IV. in actions of tort for misfeazance, several counts for the same injury, varying the description of it, are not allowed. And in the like actions for nonfeazance, several counts founded on various statements of the same duty, are not allowed. Declaring in tort, the plaintiff was permitted to add a count in trover, whereby the defendant was ousted of his plea in abatement (q), on the ground of not joining all the parties; and further, if the action was brought against several defendants, and some were found guilty, and others acquitted, the plaintiff was, notwithstanding, entitled to judgment against those who had been found guilty (r). The reader, however, should be apprized, that the doctrine laid down in Govett v. Radnidge, was opposed by two decisions in the Court of Common Pleas, viz. first by the case of Powell v. Layton, 2 Bos. & Pul. N. R. 365, in which it was determined, that a declaration against a carrier by water, stating, "that he had received goods to carry for freight, but that he had not delivered them according to his duty," was founded in contract; and that to a declaration so framed, the defendant might plead that he was only liable jointly with his partners, and that his partners were not sued; and, secondly, by the case of Max v. Roberts, and eight others (s); there the gravamen was alleged as consisting in a breach of duty as shipowners, arising out of an employment for freight. The plaintiff could not prove all the defendants to be owners; the court were of opinion, that, as the action was founded in contract, it was incumbent on the plaintiff to prove all the defendants to be owners, and having failed in that, he could not recover against those who were proved to be owners. A writ of error was brought, which, having been twice argued in the Court of King's Bench, was adjourned to the Exchequer Chamber, as it was supposed that a decision in this case might settle the question upon which the contrary judgments had been given; but, after argument, the twelve judges were unanimously of opinion, that both the counts of the declaration were

(p) See new rules.

(q) Mitchell v. Tarbutt, 5 T. R. 649; Ansell v. Waterhouse, B. R. Trin. T. 57 Geo. III. 6 M. & S. 385.

(r) Govett v. Radnidge, B. R. 3 East, 62; Cooper v. South, 4 Taunt. 802; Bretherton v. Wood, 3 Brod. & B. 54. (8) 2 N. R. 454.