time has elapsed for the plaintiff to fetch them, the defendant is liable. Bourne v. Gatliffe, ante, p. 618. And where the question is whether the goods have been delivered by the defendant at London, evidence is admissible to show what constitutes a delivery in London, according to the usage of that port; and former dealings between the plaintiff and defendant are evidence of such usage. S. C.; and see ante, pp. 460,

617.

Where there has been a delivery by the carrier, actual or constructive, though the goods remain on his premises, he is no longer liable as carrier, but only as warehouseman, or on any special terms of bailment which he may choose to impose on the customer. See Mitchell v. Lancashire & Yorkshire Ry. Co., L. R., 10 Q. B. 256. Thus where cattle sent by railway were kept at the arrival station, by the direction of the owner's servant, until they could be removed according to the police regulations, the company were held not liable as carriers. Shepherd v. Bristol & Exeter Ry. Co., L. R., 3 Ex. 189. So where goods are carried, "to be left till called for," and the carrier does not know the consignee's address, and the consignee does not call for the goods within a reasonable time, the carrier becomes an involuntary bailee, and is liable only for negligence. Chapman v. Gt. W. Ry. Co., 5 Q. B. D. 278. So, after refusal of the goods at the consignee's address. Heugh v. L. & N. W. Ry. Co., L. R., 5 Ex. 51. As to the liability of a railway company in respect of goods deposited at a cloak-room at its station, vide post, p. 626.

The declarations of the coachman respecting the loss of a parcel are evidence against the coach proprietor. Mayhew v. Nelson, 6 C. & P. 58. So where in an action for not delivering a parcel sent by rail to V., the plaintiff, to a plea of the Carrier's Act, replied felony of the company's servants: the statements of the station-master at V. to the superintendent of police, with reference to the loss, and to the absconding of the parcel porter at V., are admissible in evidence. Kirkstall Brewery Co. v. Furness Ry. Co., L. R., 9 Q. B. 468. But the statements of a night inspector at a railway station as to the detention of goods, which would pass through the station, and there be under the inspector's charge, were held to be inadmissible against the company. Gt. W. Ry. Co. v. Willis, 18 C. B., N. S. 748; 34 L. J., C. P. 195.

If the carrier deliver the goods to a wrong person, he is liable in trover; Stephenson v. Hart, 4 Bing. 476; aliter, if only lost; Ross v. Johnson, 5 Burr. 2825.

Damages.] Where goods are sent from A. to B. and are lost, the consignee is entitled to their value at B., as distinguished from the place where they were delivered to the carrier. Rice v. Baxendale, 7 H. & N. 96; 30 L. J., Ex. 371. And in such case the measure of damages is, in general, the market value of the goods, at the place and time at which they ought to have been delivered; and if there be no market for the sale of such goods at the place, the jury must ascertain their value, by taking their price at the place of manufacture, together with the cost of carriage, and a reasonable sum for importer's profits. O'Hanlan v. Gt. W. Ry. Co., 6 B. & S. 484; 34 L. J., Q. B. 154. The market value is to be estimated "independently of any circumstances peculiar to the plaintiff, and so independently of any contract made by him for the sale of the goods." Rodocanachi v. Milburn, 18 Q. B. D. 67, 77, C. A. Unpaid freight, for which the shipowner has a lien, is to be deducted from the market value, but not advanced freight. S. C.; Dufourcet v. Bishop, 18 Q. B. D. 373. The damages recoverable are either" such as may fairly and reasonably be considered arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be

supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." Hadley v. Baxendale, 9 Exch. 341; 23 L. J., Ex. 179; see also Cory v. Thames Iron Works Co., L. R., 3 Q. B. 181, and Elbinger Actien-Gresellschafft v. Armstrong, L. R., 9 Q. B. 473. Plaintiff being under contract to deliver coals at a certain time in a distant colony, engaged defendant to convey them, defendant being aware of the contract: held that, on failure of the defendant, he was liable to the extra expense of conveyance by other means, incurred by plaintiff, as special damage. Prior v. Wilson, 8 W. R. 260, H. T. 1860, Q. B. And even where plaintiff was under no contract to deliver, a rise in price of coal at the pit's mouth, between the times when the defendant's ship should have been ready to take the coals on board, and when the plaintiff could obtain another ship to carry them, was held to be primâ facie recoverable in addition to extra freight; as by the custom of the colliery trade, the plaintiff was not able to secure a cargo, till he had vessels to carry it. Featherston v. Wilkinson, L. R., 8 Ex. 122. Where, owing to the delay of a month, in the delivery of cloth by the defendants, which the plaintiff wanted immediately to make up into caps, the plaintiff lost the season, it was held that he could not recover, as damages, the loss of the profit he would have made by the sale of the caps, but that he could recover the amount of depreciation in the market value of the cloth owing to the lapse of the season. Wilson v. Lancashire, &c. Ry. Co., 9 C. B., N. S. 632; 30 L. J., C. P. 232; see also Gt. W. Ry. Co. v. Redmayne, L. R., 1 C. P. 329. So the plaintiff may recover the difference between the market price of hops, on the day when they ought to have been delivered, and the price when they were available for sale, owing to delay and damage caused by the defendants. Collard v. S. E. Ry. Co., 7 H. & N. 79; 30 L. J., Ex. 393; see also Gee v. Lancashire, &c. Ry. Co., 6 H. & N. 211; 30 L. J., Ex. 11. In an action for not delivering samples, which the carrier knew to be such, until the season had elapsed, by reason of which they had become valueless, it was held that their value to the plaintiffs, as samples, at the time they should have been delivered was recoverable. Schulze v. Gt. E. Ry. Co., 19 Q. B. D. 30, C. A. So in an action for not delivering samples in time for exhibition at a show, it was held that damages were recoverable for loss of estimated profits by reason of their not being exhibited, without evidence of the prospect of profits at the particular show. Simpson v. L. & N. W. Ry. Co., 1 Q. B. D. 274.

In order to recover damages for non-sale, owing to delay in carrying, there must have been an actual contract to buy for a price. Hart v. Baxendale, 16 L. T., N. S. 390, Martin, B. Loss of a beneficial subcontract cannot be recovered without notice to the carrier of the special terms thereof; Horne v. Midland Ry. Co., L. R., 7 C. P. 583; Ex. Ch., L. R., 8 C. P. 131; and it seems that a mere notice of such sub-contract will not be sufficient, unless it be given under such circumstances as to make it a term of the contract that the carrier will, on breach thereof, be liable for such loss. S. C., L. R., S C. P. 139, 141, 145; British Columbia, &c. Sawmill Co. v. Nettleship, L. R., 3 C. P. 499, 509, per Willes, J. So loss of hire of goods, sent for hire, cannot be recovered unless the carrier had notice that they were sent for that purpose. Hales v. L. & N. W. Ry. Co., 4 B. & S. 66; 32 L. J., C. P. 292. Conversely a contract for sale at less than the market value, of goods "to arrive," is not to be considered. Rodocanachi v. Milburn, 18 Q. B. D. 67, C. A. The plaintiffs delivered to the defendants machinery intended for the erection of a saw-mill at Vancouver's Island; the defendants knew generally of what the shipment consisted; part was lost, so that the mill could not be erected, and the plaintiffs had to send to England to replace the loss: held that the

measure of damages was the cost of replacement in Vancouver's Island, with interest at 5 per cent. upon the amount until judgment. British Columbia, &c. Sawmill Co. v. Nettleship, ante, p. 620. But in the case of the carriage of goods by ship, damages for loss of market are not recoverable, although the delay was occasioned by defects in the ship. The Parana, 2 P. D. 118, C. A.; see also The Notting Hill, 9 P. D. 105, C. A. See further, sub tit. Actions for not delivering Goods-Damages, ante, pp. 526, 527. Where, by reason of a refusal to carry, or of non-delivery or delay by a railway company, a carrier, who uses the railway for his parcels, is injured in his own business as a carrier, such injury is too remote to be considered in damages. Semb. Crouch v. Gt. N. Ry. Co., 11 Exch. 742; 25 L. J., Ex. 137. So the hotel expenses of the plaintiff, a commercial traveller, while he was waiting for the goods, which the defendants ought to have delivered, were held to be too remote to be recovered. Woodger v. Gt. W. Ry. Co., L. R., 2 C. P. 318. See further, post, p. 624. A carrier, B., contracted with A. to carry A.'s goods, and B. sent them by an independent carrier, C., who injured them in transit, whereby B. was compelled to pay damages in an action brought against him by A. B. gave notice to C. of the claim and action, but C. declined to interfere. It was held that B. could not recover from C. the costs of that action. Baxendale v. L., Chatham & Dover Ry. Co., L. R., 10 Ex. 35, Ex. Ch. This decision has been explained on the ground that B.'s defence to the action against him was unreasonable. See Hammond v. Bussey, 20 Q. B. D. 79, Č. A., cited ante, p. 473. Where bales of rags were sent for carriage without notice to the carrier that they were damp, and, in consequence only of their being damp, delay in carriage caused them to heat and become worthless, the carrier was held liable to nominal damages only. Baldwin v. Id., 9 Q. B. D. 582.

The cases on the measure of damages are collected and discussed in the notes to Vicars v. Wilcocks, 2 Smith's Lead. Cas., 9th ed., 580.

When the plaintiff has made a false declaration of the value of horses, in order to induce a railway company to carry them on lower terms, and they are injured by the company's negligence, he cannot recover more than the declared value. M'Cance v. L. & N. W. Ry. Co., 7 H. & N. 477; 31 L. J., Ex. 65; 3 H. & C. 343; 34 L. J., Ex. 39, Ex. Ch. The defendants had in this case admitted liability by payment into court; but quære if they were liable at all? See cases collected, post, p. 622.

Costs.] As to the effect of the County Courts Act, 1888, s. 116, with reference to costs in actions against carriers, vide ante, pp. 295, 296.

Defence.

By Rules, 1883, O. xix. r. 15, the defendant must plead specially all facts not previously stated on which he relies, and must raise all such grounds of defence as, if not pleaded, would be likely to take the plaintiff by surprise; and r. 17 provides that the defendant shall not deny generally the allegations in the statement of claim. By r. 20, a bare denial denies the making of the contract in point of fact only, and not its sufficiency in point of law. See the rules cited ante, pp. 301, 302. A defence arising under the Carriers Act, s. 1, ante, p. 607, 608, must therefore be specially pleaded. Syms v. Chaplin, 5 Ad. & E. 634. A carrier may, by his defence, set up the title of a third person, who has claimed and retaken the goods. Sheridan v. New Quay Co., 4 C. B., N. S. 649, 650; 28 L. J., C. P. 58. See Clough v. L. & N. W. Ry. Co., L. R., 7 Ex. 26, Ex. Ch.

As to right of master of ship to sell cargo in case of necessity, vide ante, p. 460.

Loss by plaintiff's own default.] It is questionable how far, and under what circumstances, it is a defence that a parcel was lost by the default of the plaintiff himself. It has been considered that where the gist of the action is negligence and non-performance of duty, so as to be founded on tort rather than contract, this may be a defence. See Webb v. Page, 6 M. & Gr. 196; Martin v. Gt. N. Ry. Co., 16 C. B. 179; 24 L. J., C. P. 209; and Burrows v. March Gas Co., L. R., 5 Ex. 67; Ex. Ch., L. R., 7 Ex. 96. Goods that are brittle, or liable to injury, must be safely packed by the consignor, or the carrier will not be liable for injury done to them in carriage, if he have used due care. Hart v. Baxendale, 16 L. T., N. S. 390, Martin, B. See also Baldwin v. L., Chatham & Dover Ry. Co., supra, and cases cited ante, p. 603. If the consignor has fraudulently concealed the value and risk from the carrier, in order to pay a lower rate of freight, he can maintain no action for a loss thus occasioned by his own fault. Gibbon v. Paynton, 4 Burr. 2298; Bradley v. Waterhouse, 3 C. & P. 318; M. & M. 154; Batson v. Donovan, 4 B. & A. 21; see Sleat v. Fagg, 5 B. & A. 347, per Abbott, C. J.; and M'Cance v. L. & N. W. Ry. Co., cited ante, p. 621. So, although the consignor is not in general bound to volunteer information as to the nature of the goods, yet, if he intentionally make false answers to the carrier's inquiries, there is fraud which avoids the contract. Walker v. Jackson, 10 M. & W. 168, 169, per Parke, B. In cases where this is a defence, the fact should be specially pleaded, unless the particular issue taken be such as to make the evidence relevant to it.

Letter Carriers.

The postmaster-general is not a common carrier, and he is not liable for the neglect or default of his subordinate officers. Lane v. Cotton, 1 Ld. Raym. 646; 1 Salk. 17; Whitfield v. Le Despencer, Ld., Cowp. 754. But the postmaster and his servants are each of them liable for their own personal negligence. S. CC.

Where a postmaster detains letters until the payment to him of more than the legal postage, an action for money had and received, for the money so illegally extorted, may be maintained against him; Smith v. Dennis, Lofft, 753; Barnes v. Foley, 4 Burr. 2149; 5 Id. 2711; Smith v. Powditch, Cowp. 182; or an action on the case for such detention. Rowning v. Goodchild, 3 Wils. 443; 2 W. Bl. 906; Stock v. Harris, 5 Burr. 2709.

Passenger Carriers.

Carriers of passengers stand on a different footing from carriers of goods. They are not insurers of the person, and are responsible only for want of due care. Christie v. Griggs, 2 Camp. 81; 2 Kent, Com. 600; Readhead v. Midland Ry. Co., L. R., 4 Q. B. 379, Ex. Ch. Hence they do not warrant that their carriages are roadworthy, and they are not liable to a passenger for an accident caused by hidden defect in the carriage, which could not be guarded against, in the process of construction, or by subsequent observation. S. C. They are, however, liable for defects in the carriage caused by the negligence of their sub-contractors. See Francis v. Cockrell, L. R.. 5 Q. B. 184; Id. 501, Ex. Ch. As to their liability for an accident, caused by the defects in a carriage of another company, sent for transit over their line, see Richardson v. Gt. E. Ry. Co., 1 C. P. D. 342,

C. A. If a railway company choose to contract to carry passengers, not only over their own line, but also over the line of another company, either in whole or in part, the company so contracting incurs all the liability which would attach to them, if they had contracted solely to carry over their own line. Per Cockburn, C. J., in Gt. W. Ry. Co. v. Blake, 7 H. & N. 991; 31 L. J., Ex. 346; Buxton v. N. E. Ry. Co., L. R., 3 Q. B. 549; Thomas v. Rhymney Ry. Co., L. R., 5 Q. B. 226; Ex. Ch., L. R., 6 Q. B. 266. See also John v. Bacon, L. R., 5 C. P. 437; and cases cited ante, pp. 605, 606. The issuing by a railway company of a through ticket is evidence of such contract with the first company. S. CC. But they are not liable for the negligence, or wrongful act of third persons, over whom they have no control. Wright v. Midland Ry. Co., L. R., 8 Ex. 137. A passenger may contract to be carried at his own risk, and the carrier will not then be liable for injury even though caused by negligence; McCawley v. Furness Ry. Co., L. R., 8 Q. B. 57; Gallin v. L. & N. W. Ry. Co., L. R., 10 Q. B. 212; and the condition will exonerate from liability any company on whose line the passenger is carried in the course of the journey. Hall v. N. E. Ry. Co., L. R., 10 Q. B. 437. But a passenger who has no notice of a condition, printed on the back of a ticket, taken by him in the usual way, and which has no reference thereto on the face of it, is not bound thereby. Henderson v. Stevenson, L. R., 2 H. L. Sc. 470. Where, however, the ticket consisted of a book of paper coupons, with conditions inside, which would have been seen on opening the book, it was held that the whole book was the contract, and the plaintiff could not reject the conditions although he did not know of them. Burke v. S. E. Ry. Co., 5 C. P. D. 1. See also Watkins v. Rymill, 10 Q. B. D. 178. See further as to conditions on tickets, cases cited post, p. 626.

Where a master takes a ticket for his servant the contract is with the master; and he can sue the carrier for not carrying the servant within a reasonable time. Jennings v. Gt. N. Ry. Co., L. R., 1 Q. B. 7. Where, however, the servant takes the ticket for a journey by himself, although on his master's service, the contract is with the servant and the master cannot sue. Becher v. Gt. E. Ry. Co., L. R., 5 Q. B. 241, vide infra.

In the case of passengers a duty arises on the part of the carrier to convey them with due care, even although the contract of carriage was made with another person. Austin v. Gt. W. Ry. Co., L. R., 2 Q. B. 442; post, p. 735. So with respect to the luggage of the passenger. Marshall v. York & Newcastle Ry. Co., 11 C. B. 655; 21 L. J., C. P. 34; Martin v. Gt. Indian Peninsular Ry. Co., L. R., 3 Ex. 9. But no person not a party to the contract other than the passenger himself can sue. Alton v. Midland Ry. Co., 19 C. B., N. S. 213; 34 L. J., C. P. 292; Becher v. Gt. E. Ry. Co., supra, unless for a pure tort independent of contract. Berringer v. Gt. E. Ry. Co., 4 C. P. D. 163, post, p. 735.

The reason of the difference between the above rules and those relating to the carriage of goods (vide ante, p. 606) may be that the bailor of the goods, if they be injured, may sue for their value, as trustee for the owner, whereas unless the passenger could sue, nothing could be recovered for his loss by injury; and passengers' luggage, as an accessory to the passenger, follows the rule which applies to him. The cases relating to personal injury to passengers are collected under Action for negligence, post, pp. 734, and 753 et seq.

The mere taking of a passenger's ticket from A. to B. is evidence of a contract to convey the passenger within a reasonable time from A. to B., but not that the train shall arrive at the time it is expected; Hurst v. Gt. W. Ry. Co., 19 C. B., N. S. 310; 34 L. J., C. P. 264; but the publication of the time bills of the company will amount to a promise that a train will