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CHAPTER XXIII.

Сн. 23.
Art. 1.

ASSUMPSIT. CARRIERS.

See Bail

1 Salk. 249. Imp. M P.

ment, above.

ART. 1. All persons carrying goods for hire are common carriers. §1. And if they refuse to carry goods or money, having conveniences so to do, an action will lie against them, and all carriers are bound to deliver goods to the persons to whom 290.-Owen directed. Bul. N. P. 70; 12 Mod. 3, 482. But one is not a 93.-Hob. 18. common carrier who engages, though for hire, to carry the goods of a particular individual.

57.-Allyn

144, 149.

§ 2. And if goods or monies be delivered to a common car- Imp. M. P. rier, he is under a contract in law to pay or carry them to the 291.-Jones person appointed; and if he do not, an action of assumpsit lies 1 Com. D. against him. And such is a master or owner of a ship, hoy- 288. man, stage coach, &c.

1 Selw. 323.See Clarke v.

land Bank,

8 Mod. 178,

§3. In this action there is in the nature of things some mixture of contract and tort, or contract and neglect, or non- Gray, Ch. feasance. Nor has it ever been decided which preponderates. 175, a. 6. See There is clearly an express or implied promise to perform the Gray . Portintended service, and the failure to perform is the neglect; Ch. 76, a. 2, and this is sometimes attended with carelessness, and even s. 11. fraud. And so may the case be circumstanced, that the injur- Harrison v. ed party may often have his election to ground his action on Green.the assumpsit or on the tort. A carrier may plead non as- Hob. 17, 18. sumpsit, or according to many cases, not guilty. This action is founded on some particular parts of the common law, often called the custom of the realm. But every thing pecular in this action against carriers has resulted from the nature and necessity of the case, and a great object has ever been to prevent fraud.

Company.

4. In this action of Garside against the proprietors of the 4 T. R. 582, Trent and Mersey Navigation, the defts. were charged as Garside v. Proprietors common carriers of hops from Stourport to Manchester, of the Trent thence forwarded to Stockport, on their undertaking for the plt. and Mersey Neglect in not sending them from Manchester to Stockport. Navigation The hops were directed to the plt. at Stockport, and delivered to the defts. to be carried from Stockport to Manchester, where they arrived safe, and there were put into the deft's. warehouse, and there were burnt by accident, the first night after put there, and before any carrier came from Stockport to whom they could be delivered. The defts. in the course of their business charged nothing for thus lodging goods in their warehouse. Judgment for the defts., who in

CH. 23.
Art. 1.

2 Ld. Raym. See Bail

ment, Jones 144.-Doct.

& Stud.

1 Inst. 89.Jones 145, 146.

89.-8 Co. 84.-5. R.

389, Hyde v. Navigation Company

this matter were viewed as mere warehouse men.
Had they
been considered as carriers they would have been viewed as
responsible as insurers, and to prevent fraud; the keeping the
goods in the warehouse was for the benefit of the owner.
Carrier may detain goods for the carriage.

5. By the common rules in bailment a carrier for hire ought to be responsible only for ordinary neglect, and in the time of Henry VIII. it was generally so holden. And the rule seems to have been, "that a common carrier was chargeable in case of a loss by robbery, only when he had travelled by ways dangerous for robbing, or driven by night, or at any inconvenient hour;" that is, had been guilty of some ordinary neglect at least.

6. But as early as the time of Elizabeth the law was settled as it now is, and if the carrier was robbed it was held, he was answerable for the value of the goods. And as the law Bul. N. P. 70. now is, "nothing will excuse him except the act of God or of 71.-4 Burr. the king's enemies." Not as Lord Coke says, because of his 2301-Co. L. hire; for that, as before stated, only makes him answerable for his ordinary neglect. But on principles of sound policy, lest being allowed the excuse of robbery &c., he might confederate secretly with robbers and desperate villains. The act from Trent to of God is better expressed by inevitable accident; and the Mersey. king's enemies are his public enemies, not rebels. See post, art. 4. This case is consistent with that of Garside. In this case the defts. were not carriers between Manchester and Stockport, but their transportation as carriers terminated at Manchester; and if they engaged any further, it was only to see the hops delivered to another carrier between Manchester and Stockport.

6 T. R. 369,

282.-3 Wilson 429.

7. In this case the court held, carriers were liable on conBiddle v. Wil- tract, and must be joined when the action is on their underson.-1 Wils. taking. It is ex contractu; and the declarations are generally on the undertaking and assumpsit. There can be no doubt but that this action against carriers may often be assumpsit, when all the carriers must be joined, and the plea is non-assumpsit, as if a carrier for a valuable consideration undertake to carry my goods to Boston, and refuse to receive or carry them, I may have assumpsit against him.

Salk. 282.
Cowp. 375.

Govitt v.

8. But also this action against a carrier may be founded on tort, and the undertaking of the carrier be considered as matter of inducement in the action, and the negligence as the gist of it, then the plea is, not guilty; and if brought against two defts. one may be acquitted, and judgment against the other.

As in 3 East 62 to 70; the declaration stated the defts. Radnidge & loaded the plt's. hogshead of treacle on their cart for a certain

al.

CH. 23.

Art. 2.

reasonable reward, to be paid by the plt. to two of them, and other such reward to be paid by the plt. to the third deft.; yet they so carelessly, negligently, &c. conducted themselves in the loading of it &c., that in loading it the same was let fall, broke, and damaged, and lost. Plea, not guilty. Verdict against Rodnidge with damages, and the other two defts. were acquitted, and judgment accordingly, after a motion in arrest of judgment, on the ground the gist of the action was tort. In this action most of the cases on this point were cited and considered, as 2 Wilson 319, in which case a like count was Duhon v. joined with one in trover, and held well, being ex delicto, and Clifton, not ex contractu, though arising out of a contract. Raym. 909, respecting the hogshead of brandy, which see, Coggs v. Barpost. On the other side in favour of the actions being on contract were cited Buddle v. Wilson, and Dale v. Hall, 1 Wils. 282, in which case the declaration was in assumpsit, and the plea non assumpsit. Lord Ellenborough C. J. said, there is no inconvenience in allowing the plt. to allege his gravamen if he pleases, as consisting in a breach of duty arising out of an employment for hire, and to consider that breach of duty as tortious negligence, instead of considering the same circumstances as forming a breach of promise implied from the same consideration of hire.

So 2 Ld

"By allowing it to be considered either way, according as the neglect of duty or breach of promise is relied upon as the injury, a multiplicity of actions is avoided; and the plt., according as the convenience of his case requires, frames his principal count in such a manner, as either to join a count in trover therewith, if he have another cause of action for the consideration of the court, other than the action of assumpsit, or to join with the assumpsit the common counts, if he have another cause of action to which they are applicable," as for money had and received &c.

nard.

Salk. 735,

Coggs v. Bar

Show, 478.909.

ART. 2. In what cases assumpsit lies against carriers or not. 1. This was a declaration in tort against a carrier, nard.-2 alleging that he undertook (without saying for hire or reward) 2 Ld. Raym. safely to take up certain hogsheads of brandy out of a cellar and deposit them in another, but that he so negligently &c. put them down, that one of them was staved. Plea, not guilty, and verdict for the plt. And on a motion in arrest of judgment, the declaration was held to be good; for the gist of the complaint was misfeasance. And Gould J. said, the declaration was good either way in assumpsit or tort. the declaration at large in 2 Show. 478, in Boson v. Sanford. § 2. The declaration was, that the deft. at the plt's. request 1 Wils. 281, undertook to carry certain goods from such a port to such a port, and in consideration thereof the plt. promised to pay him

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See

282, Dale v.

Hall.

Сн. 23.
Art. 2.

Hob. 30.-2
Cro. 330.

Jones 149.

Burr. 2298,

Gibbon v.

so much money. That the goods were delivered to the deft. on board his boat, and that he kept them so negligently they were spoiled. Plea, non assumpsit. Proof, the goods were damaged by water and rust; that rats made a leak by which it happened; that the deft. pumped and did all he could to prevent the evil. Held, the deft's. evidence was not admissible; that he was to carry for hire, and safely, which was no more than the law implied. The law says, "every thing is negligence in a carrier or hoyman, that the law does not excuse, and he is answerable for goods the instant he receives them into his custody, and in all events, except they happen to be damaged by the act of God or the king's enemies.

3. So if a hoyman be robbed, he is liable for the reason above mentioned, to prevent confederacies and frauds.

§4. So a carrier is liable for the loss of a box, though he 1 Stra. 145.- be ignorant of its contents, unless he make a special acceptance; but the bailor may lose his action by fraud or by imposing on the carrier. As when money sent by a stage coach 345.-Bul. N. was hid in hay in an old mail-bag by the bailor, to avoid the price of carrying money; the law will not allow the bailor to take advantage of such a fraud. See 6 East 564, Clarke v.

Poynton & al.-1 Bac.

P. 71.-
Lyon v.
Metts.-

Carth 458,
Tyly & al. v.
Morrice, cit.
ed 4 Burr.
2301.-1
Selw. 328.

Ld. Raym. 220, Mors v. Slew, cited

Jones 152,

1 Selw. 323. 1 Bac. Abr.

344-1 Com.

D. 289.-1 T.
R. 18, 27, 33.
Sutton v.

Mitchell.

1 T. R. 27, Forward v. Pittard -1

Gray.

5. After several cases as to fraud and concealment by the bailor were decided, it was in this case held, "that the carrier was liable only for what he was told of." The carrier was told there was in the bags £200, (these being sealed up) he gave a receipt for so much. He was robbed. And the court held, he was liable only for the £200, and that the plt. was guilty of fraud. Held "a common carrier insures the goods at all events," and it is right. But said Yates J., surely he ought to known "what it is he undertakes, he ought not to be liable where he is deceived." In this case Lord Mansfield and the court went on the principle, that a carrier is answerable by reason of his reward, and ought to have a price according to the risk. And the case of Kenrig v. Eccleston, Allen 93, was denied to be law.

6. A ship was lying in the river Thames within the body of the county, and "eleven persons armed came on board of the ship in the river, under pretence of impressing seamen, and forcibly took the chests which the deft. had engaged to carry." "And though the master was entirely blameless," Hale and the court held, he was liable; but otherwise as to storms, pirates, &c. at sea. Abbott 182, 202; Hob. 17; Cro. J. 330.

7. A carrier is in the nature of an insurer. Hence, he is, when undertaking for hire, bound to deliver the goods at all Cranch, 345. What is the events, except damaged or destroyed by the act of God or the

act of God?

king's enemies, even though the jury expressly find that they were destroyed without any actual negligence in the carrier.

CH. 23.

Art. 3.

8. A box of jewels was delivered to a ferryman who did not know what it contained, and a sudden storm arising in the Jones 151.passage, he threw the box into the sea, and the court held, he Allen 93. was liable; but Jones adds a quære.

419, Robinson v. Dun

Held, if A travel in a stage coach, and takes his portman- 2 Bos. & P. teau with him, though he has his eye on it, yet the carrier is liable if it be lost. And if a coachman carry goods for hire more. he is liable as a common carrier.

Kneeland.

9. The plt. delivered goods to the deft., a common Cro. Jam. bargeman, to carry for hire, and he so negligently kept them 330, Rich v. they were stolen. Plea, the deft. delivered to A to carry them by the plt's. consent, who discharged the deft. of the carriage. The plt. denied the discharge. Demurrer and judgment for the plt. ; for the delivery by his consent was not material, but on the discharge on this issue. Goods left in an 1 Ld. Raym. inn-yard whence the carrier starts is no delivery to him.

46.

vens, cites

ART. 3. Where a carrier is not liable. He is not liable Bul. N. P. 69, where deceived as above. So he is not liable where there is Amies v. Stesome inevitable accidents; as where the deft's. hoy coming Stra. 128, through a bridge was driven against it by a sudden gust of post. art. 7. wind. This was the act of God, which no care could foresee or prevent. And it is sufficient the hoy or boat be such a one as will probably perform the passage without any extraordinary accident.

2. So if a pipe of wine upon the ferment burst in the Bul. N. P. 69. wagon when gently driven; for the fault is in the wine, and Farrar v. the insurer does not insure against the defects of the thing itself.

3. So if I send my servant with the goods on board the vessel, and he locks them up and they are lost, the carrier is not liable, for they are not to be viewed as in his keeping, but in the keeping of my servant. But see Robinson v. Dunmore, post.

Adams.

Bul. N. P. 70, E. I. Comp. r. Pullen.

Stra. 690.

-1 Bac. Abr.

4. So if the driver of a stage coach, which only carries Bul. N. P 70. passengers for hire, loses their goods, the master is not liable; 343.-2 and if the servant receive a gratuity for carrying the goods it Show. 128.makes no difference; for it is not in the course of his business. Salk. 282. But when goods as well as passengers are carried for hire, then the master is a common carrier, and liable to answer for the goods.

§ 5. So if I and several others be in a ferry boat, and when on the water a tempest arises, and all in much danger of being drowned; upon which to preserve the lives of those on board, goods, and among the rest, mine, of great value, are thrown overboard; the boatman is not liable, and I can have

2 Ld. Raym. 128, Amies v. Stevens.

918.-Stra.

Mouse's case. 12 Co. 63.

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