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Page 364, column 2, line 25 from top, for maternal,” read "paternal." 370,

2, last line but one of the marginal note to Clapham v. Atkinson, for “ A,"

read “C, a non-executing creditor ;” and in the last line, for "A,"

C." 398,

8 from top, for “portion,” read “proportion." 399,

2 16 from top, for Deheld,” read De Held.”
2 28 from top, for “5 Beav. 323,” read 229."
2 26 from top, for “Jagger," read “Jaggar.”
2 9 from bottom, for 4 Dick.," read 2 Dick.”
2, 7 from bottom, for Daws,” read Dors."

2, 3 from bottom, for 16 Ves. 289,"' rcod10 Ves. 300.” 410,

28 from top, for “priority,” read “privity.” 415,

2 22 from bottom, for one of the nephews of the testator,” read "a brother

of the testator's wife." 458,

1 27 from top, for 7 Beav. 291,” read 288." 474,

2 last word of last line, for “plaintiff,” read "defendant." 507,

2, 12, for 1864," read 1863.”

lines 22 and 23 from the bottom, for “2 & 3 Vict. c. 71," read 2 & 3

Will. 4, c. 71." 549,

2, 4 from top, for 1862," read August, 1862.” 557,

13 from bottom, for "1862,” read "1863." 568,

2, last line, for no breach of it," read a breach." 597,

2 29 from top, for “G. M. Colt,” read “G. N. Colt." 612,

40 from top, for “10th instant,” read 10th proximo."

2, 11 for “Lightbourne,” read Lightburne.”
2 15 from top, for “Este," read D’Este."
2 24 from top, for “building,” read “buildings."
2, 26 from top, for "Murray," read Murphy."
2 last line, for " s. 7," read 57.

2, 14 from bottom, for “plaintiff,” read heir-at-law."

Re Metcalfe's Will," add Note.—See also as to civil death and status of

a nun, in addition to the cases cited here and in the Court below, Evans

v. Cassidy, 11 Ir. Eq. R. 243, and Blake v. Blake, 4 Ir. Ch. R. 349."

2, 27 from bottom, for 905," read “930."

1, 15 from bottom, for “ Tyrrell,” read "Tyrell."
1, 24 from bottom, for “Belchior,” read “Belchier,” for “ 3rd ed.," read

“8th ed.”

13 of marginal note, for “B," read C." 664,

1, 25 from bottom, for 274,” read 275."

1, 14 from bottom, dele "as.” 667,

2, 22 from bottom, for 125," read “124." 676,

1, lines 19 and 35 from top, for "86,” read “80.” 679,

2, lines 21 and 30 from bottom, for Gibaud,” read “Gibaut.” 680,

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1, 7 from top, for “Gibaud,” read Gibaut.”
2, 10 from top, for respondents," read “ defendants."





House of Lords. Peek v. North STAF- structions to the carter of the respondents to call for 1 JULY, 1862.

FORDSHIRE RAILWAY the mantel-pieces, and the following notice was given 14 APRIL, 28 JULY, 1863. COMPANY. *

to him :

“ The North Staffordshire Railway hereby give Present — The LORD CHANCELLOR, + The Lord

notice that they will receive, forward, and deliver BROUGHAM, The LORD CRANWORTH, The LORD

goods solely subject to the conditions hereunder WENSLEYDALE, and The LORD CHELMSFORD.

stated," There were also in attendance, COCKBURN, C.J.,


among the conditions was the following :POLLOCK, C.B., WILLIAMS and CROMPTON, WILLES

“That the Company shall not be responsible for the and BLACKBURN, JJ., and MARTIN, B.

loss of, or injury to any marbles ..... unless Carriers- Railway Traffic Act, 1854, s. 7– declared and insured according to their value.” Special Contract Insurance of Goods. The marble chimney-pieces were taken to the

respondents' station, and remained there whilst some A, subsequent to the Railway and Canal Traffic Act, correspondence ensued as to the cost of insurance : 1854, proposing to forward certain cases of marbles by ultimately, the appellant's agent was informed that B, a railway company, gave the latter notice of his the cost of insurance would be ten per cent. on the intention.

declared value. The agent, thereupon, on the 1st of The company thereupon gave A a printed notice, to August, wrote a letter to the respondentsthe effect that they would not be responsible for the loss of,

“Please to forward the threc cases of marble not or injury to, any marbles, unless declared and insured insured as directed to W. Peek, Esq., to be called for according to their value.

at Camden goods station, London.” A, thereupon by letter directed the company to forward When the appellant sent for the chimney-pieces it the cases of marbles NOT INSURED.

was found that they had received damage from wet, The marbles on their transit were injured by the nego and that rust from the nails of the packages had ligence of the company's servants.

soaked through the cases and discoloured the inarble. Held, (affirming the decision of the Queen's Bench,

Under these circumstances the appellant brought and reversing that of the Exchequer Chamber,) that

an action against the respondents, and the declaration there was no contract between A and the company, that charged them as common carriers with so negligently the goods should be carried by the company on the terms carrying certain marble chimney-pieces delivered to that the latter should be absolved from all liability by them by the plaintiff to be carried for the plaintiff, that reason of there being no insurance, and that they such marble chimney-pieces were damaged. carried the marbles subject to the Common Law liabilities

The respondents pleaded of the carrier.

By their fourth plea, That the goods in the de. This was an appeal from the judgment of the Court claration mentioned were delivered and received by of Exchequer Chamber (5 Ell. & Bl. 989), reversing the defendants to be carried, after the passing of the a decision of the Court of Queen's Bench (5 El. & Railway and Canal Traffic Act, 1854, and under and BL 958).

subject to a certain special contract in that behalf In July, 1857, the appellant was the owner of three signed by one George Whittingham, for and on account marble mantel-pieces, in Staffordshire, and he gave of one Charles Meigh, who was the person delivering orders to his agent to forward them to London by the the said goods to the defendants for carriage, whereby respondents' railway. The appellant's agent gave in. it was agreed that the defendants should not be re

sponsible for the loss or injury to marbles, unless The report of this case was unavoidably omitted in the

declared and insured according to their value, and that previous number, published on the 8th of August.

the goods in their declaration mentioned were marbles, | Sec note at foot of page 8.

and that the same were not, nor was any part of the VOL JII.


same, declared or insured by the plaintiff, in the the office, without further proof of bailor's knowledge, manner provided by the said agreement.”

but preserved power of special contract, By their fifth plea, That the said goods were de- Wyld v. Pickford, 8 M. & W. 443, 458 ; livered and received after the passing of this Act, Shaw v. York and North Midland Railway Comunder and subject to a certain just and reasonable con- pany, 13 Q. B. 347; dition, made by the defendants, and assented to by the Carr v. Lancashire and Yorkshire Railway Complaintiff, with respect to the receiving, forwarding, and pany, 7 Exch. 707 ; delivering the said goods ; that is to say, that the Walker v. Yorkshire and North Midland Railway defendants should not, nor would, be responsible for Company, 2 Ell. & Bl. 750. the loss or injury to the marbles, unless declared and The above cases showed that the practical monopoly of insured according to their value."

railway companies gave them the power of enforcing At the trial the learned Judge directed a verdict to any conditions they pleased ; hence the passing of the be entered for the respondents on the above pleas, but Act of 1854. the Court of Queen's Bench (Lord CAMPBELL, C.J., The two provisoes of the 7th section must be read and Crompton, J. ; dissentiente Erle, J.,) made a together, or the railway company would still be able rule absolute to set aside the respondents' verdict, and to enforce any condition reduced to writing. The to enter a verdict for the appellant. On appeal to effect, therefore, was that all conditions must be reduced the Court of Exchequer Chamber, that Court (Pol- to writing and signed by consignor, and must, in LOCK, C.B., WILLES, J., MARTIN, B., Watson, B.; opinion of Court or Judge, be just and reasonable, dissentientibus WILLIAMS, J., CHANNELL, B., *) re- Simons v. Great Western Railway Company, versed the judgment of the Court of Queen's Bench.

18 C. B. 805 ; The portions of 17 & 18 Vict. c. 31, s. 7, the Rail- London and North Western Railway Company, way and Canal Traffic Act, 1854, on which the argu- v. Dunham , id. 829; ment turns are as follows:

Peek v. North Staffordshire Railway Company, Every such company as aforesaid shall be liable (the present case) loc. cit.; for the loss of, or for any injury done to .... any McManus v. Lancashire and Yorkshire Railway articles, goods or things in the receiving, forwarding, or Company, 4 H. & N. 327. delivery thereof, occasioned by the neglect or default of There was here no contract in writing: the document such company or its servants, notwithstanding any of the 1st of August refers to nothing, nor can parol notice, condition, or declaration made and given by evidence be adduced to explain “not insured,” such company contrary thereto, or in anywise limiting Boydell v. Drummond, 11 East, 142; Buch liability ; every such notice, condition, or decla- Kenworthy v. Schofield, 2 Br. & Cr. 945; ration being hereby declared to be null and void. Hinde v. Whitehouse, 7 East, 558; Provided always, that nothing herein contained shall Blackburn on Contract of Sale, 47 ; be construed to prevent the said companies from Smith v. Neale, 2 C. B. (N. s.) 67 ; making such conditions .... as shall be adjudged Leroux v. Brown, 12 C. B. 801; by the Court or Judge before whom any question Holmes v. Mitchell, 7 C. B. (N. 8.) 361. relating thereto shall be tried to be just and reason. The condition attempted to be set up is neither just able :..... Provided also, that no special contract nor reasonable, between such company and any other parties respecting McManus v. Lancashire and Yorkshire Railway the receiving, forwarding, or delivering of any ..

Company, loc. cit.; articles, goods, or things as aforesaid shall be binding McCance v. London and North Western Railway upon or affect any such party unless the same be Company, 31 L. J. Ex. 65 ; signed by him or by the person delivering such .... Harrison v. London, Brighton, and South Coast articles, goods, or things respectively for carriage."

Railway Company, 29 L. J. Q. B. 207 ; s. C.

31 L. J. Q. B. 113. 1 JULY, 1862. Gordon Allan, and Henry James, for the ap

Phipson, and Quain, for respondents, the railway pellant Peek, now examined the state of the law

company. before the passing of the Railway and Canal Traffic

The Railway and Canal Traffic Act was passed to Act, 1854. At Common Law a carrier was bound to carry goods notice : it was passed in consequence of

limit carriers' power of protecting themselves by upon tender of a proper reward, but he could limit

Carr v. Lancashire and Yorkshire Railway Comhis liability by public notice, if proved to have been brought to the bailor's attention. 11 Geo. 4 & 1 Will. 4, which showed that companies could protect themselves

pany, loc. cit., C. 68, ss. 1, 2, 6, freed carriers from liability as to from the consequences of their own negligence. certain articles, upon public notice being affixed in

The Act refers to two kinds of conditions, (1st) those • Mr. Justice Crowder heard the argument, but died before imposed by a company and not embodied in a contract, judgment was given.

which are good only if just and reasonable ; (2nd) those which are reduced to writing and signed by the Act, 1854, because they thought the companies took consignor, which are not open to question,

advantage of those decisions to evade altogether the Riley v. Horne, 5 Bing. C. P. 217;

salutary policy of the Common Law. He argued, McManus v. Lancashire and Yorkshire Railway from Kerr v. William (6 M. & S. 150), the first CarCompany, loc. cit. ;

riers' Act (11 Geo. 4 & 1 Will. 4, c. 68, s. 4), Wyld v. Harrison v. London, Brighton, and South Coast Pickford (8 M. & W. 443), in opposition to the judg. Railwly Company, loc. cit. ;

ment of the Lord Chief Justice (then Mr. Justice) Wyld v. Pickford, loc. cit.

Erle, in McManus v. Lancashire and Yorkshire Railway The letter of the 1st of August constitutes a contract Company (loc. cit.), that notices operated as special in writing,

contracts with those to whom they were brought home; Hutchson v. Bouker, 5 M. & W. 535;

and he proceeded to examine the series of cases which Gabay v. Lloyd, 3 B. & Cr. 793 ;

established the general doctrine he had stated :Goldshede v. Swan, 1 Exch. 154;

Shaw v. York and Hull Railway Company (loc. cit.), Bainbridge v. Wade, 16 Q. B. 89;

Chippendale v. Lancashire and Yorkshire Railway Doe v. Hiscocks, 5 M. & W. 363;

Company (21 L. J. Q. B. 22), Aust-n v. Manchester, MeDonald v. Longbottom, 28 L. J. Q. B. 293. Sheffield, and Lincolnshire Railway Company (10 C. B. Were it necessary, the condition could be shown just 454), Carr v. Lancashire and Yorkshire Railway Com. and reasonable,

pany (loc. cit.); Walker v. Yorkshire and North Mid. Beal v. South Devon Railway Company, 29 L. J. land Railway Company (loc. cit.); Great Northern Ex. 441.

Railway Company v. Morville (21 L. J. Q. B. 319),

York, Newcastle and Berwick Railway Company v. Gordon Allan, in reply, cited,

Crisp (14 C. B. 527), Hughes v. Great Western Railway Blackett v. Royal Exchange Assurance Company, Company, (id. 637), Sicer v. Great Northern Railway 2 Cr. & J. 244 ;

Company (C. B. 697). Yates v. Pym, 6 Taunt. 446.

It was under these circumstances that the Railway At the conelusion of counsels' arguments, the and Canal Traffic Act, 1854, was passed, and he following questions were submitted to the learned thought that when the previous decisions were looked Judges :

to, and the language of the statute construed with Ist. Is the condition that the company should not reference to them, the intention of the Legislature was be responsible for injury to the goods (that is, the clear. In Pardington v. South Wales Railway Commarbles), unless the same were declared and insured pany (1 H. & N. 392), Bramwell, B., threw out an according to their value, a just and reasonable con opinion, that a condition incorporated in a signed condition within the true intent and meaning of the 17 & tract was not within the enactment at the beginning of 18 Vict. c. 31, s. 7?

the 7th section, and Erle, C.J., had twice strenuously 2nd. Is the plaintiff entitled to have the verdict maintained the same opinion ; but he (Mr. Justice Entered for him upon the 4th plea ?

Blackburn) thought the true construction of the Act 3rd. Is the plaintiff entitled to have the verdict was not expressed by Jervis, C.J., in Simmons v. Great entered for him upon the 5th plea ?

Western Railway Company (loc. cit.), and he pro.

ceeded to answer their Lordships' questions, on the 14 APRIL, 1863.

assumption that he had established, that a condition The Judges this day attended and delivered their exempting a railway company from liability for loss, opinions in the following order :-*

or injury done to goods occasioned by the neglect or

default of the company, or its servants, was void, BLACKBURN, J., said the answers to the questions unless it were such as the Court, as a matter of law, put by their Lordships turned upon the 7th section adjudged to be reasonable, and unless also it was of the Railway and Canal Traffic Act, 1854 ; and contained in a signed contract. to interpret that Act he would apply the rules in

The first question he answered in the negative. He Heydon's Case (3 Rep. 78). In his opinion the cases held the meaning of the condition to be, that the decided between 1832 and 1854 established the law company should not be liable for any loss or injury that a carrier might by a special notice make a con accruing in the course of the carriage, even if arising tract limiting his responsibility, even in cases of from the neglect or default of their servants; and the gross negligence, misconduct, or fraud on the part of company refused to carry at all unless the customer his servants ; and it seemed to him that the Legis- assented to this condition, or agreed to pay whatever lature intervened in the Railway and Canal Traffic they chose to fix as an insurance.

In the present

case, the company sought to impose 101. per cent. ; no These opinions if printed in extenso would occupy a evidence was given to show that such a charge was Number of these Reports, and the Editors have deemed it reasonable

, and he thought the onus of proving that sifficient to give a sunmary of them here : those who may wish to read them at length can procure them in a Parlia it was, lay on the company. He came to the conclumentary Paper, published by Spottiswoode.

sion that the condition was unreasonable.

As to the second question, their Lordships had not the meaning of “colour" or "journies accounts." asked whether the plea was good; he had already This point was not touched by the case of McManus indicated his opinion, that it was insufficient, but this v. Lancashire and Yorkshire Railway Company (loc. was of no consequence as he thought the plea, as cit.), where the condition was different. If there pleaded, not proved. There was ample evidence of was no condition, he thought the plea was proved the authority of the agent who signed tho letter of the by the letter ; but there being such a condition, he 1st of August, and the only question was, whether the thought that was one of the surrounding circumstances signing of the letter was the signing of a contract to by which the letter might be construed. In the former the effect that the defendants should not be responsible case, the general contract was negatived, in the latter for loss and injury to the marbles. In every case, the fourth plea was proved in terms. there was a preliminary question for decision, viz., The third question was not argued in the Exchequer whether the particular writing in that case was the Chamber. It might be stated thus, viz., the words written record of the contract by which the parties special contract,” in the fourth proviso of the 7th were bound, or whether it was merely one of the facts section of the “Railway and Canal Traffic Act, 1854," given in evidence by which the agreement between the meant contract "special" only because of its creating parties was to be proved. This was a mixed question a relation different from that between a common of law and fact to be decided by the Judge, and his carrier and his employer, so as to include all cases of decision was open to review on such a rule as that notice or condition or declaration, stating the terms before their Lordships. He thought the parties did upon which the business of the company was con. not intend to make the letter of the 1st of August the ducted, or a contract "special" in a more limited record of their contract; there were other facts in sense, viz., as being different from the terms upon the case to be taken along with the letter, not as ex. which the company generally carried on business, planatory evidence, but as evidence to prove intention whether, according to the law applicable to common as an independent fact; which was admissible because carriers simpliciter, or that law modified by just the letter was not the written contract, and could not and reasonable notice, condition, or declaration. It be admissible if it were the written contract. He, appeared to him that the latter was the right con therefore, considered there was not a special contract struction. It was true that the notice, condition, or signed, as he thought the letter which was signed was declaration, except it be within the Carriers' Act, not a contract; and, therefore, the plaintiff

' was en would only be binding if either expressly or impliedly titled to a verdict on this plea.

assented to by the customer, so as to constitute a con. As to the third and last question, for the reasons tract "special" in the first sense. But the legislation already given, he thought the plaintiff entitled to a as to that sort of "special" contract was exhausted verdict on the fifth plea.

before the fourth proviso was reached ; and the new

language of that proviso pointed, obscurely, it must be WILLES, J., was of opinion, that the condition admitted, but perceptibly, to a more limited sort of mentioned in the first question was just and reason special contract, that is, a contract for the nonce able, upon the ground that a person who was asked between a customer and the company, specially to incur a risk at the request and for the benefit settling the terms of the particular bargain. of another, might reasonably wish to be remunerated If what was contended for by the plaintiff were or excused. It was fallacious to suppose that because, intended, the word “special” might have been in the absence of special stipulation, the risk, apart omitted, and the meaning of the proviso would remain from that of misconduct, fell upon the carrier, there the same. He, therefore, could give no meaning to the fore it could not properly be made the subject of word “special,” unless he read it as specifying india distinct charge. There was no proof that the charge vidual cases out of the general course of business. made was unreasonable. There was no such point He did not discuss the cases, because they wero before them. If it had been raised, it would have stated so fully by Blackburn, J.; and as they exhipresented a question in its nature fit for a jury, not bited a diversity of opinion, he was compelled to the Court.

resort to the words of the statute, and to construe them As to the second question, it was fully discussed in as well as he could without regard to that element of the judgment of the Exchequer Chamber, in which he confusion. concurred. He ventured to add, that ordinary ex- He was bound to own that this opinion was at perience informed one versed in this subject, that the variance with the judgment in McManus v. The term “not insured,” meant as between carrier and Lancashire and Yorkshire Railway Company (loc. customer, that the goods were at the risk of the cit.), in which he then concurred, but which he was customer, because of the customer preferring to take now unable to uphold. that risk upon himself rather than pay the price of the carrier taking it upon him. He found it as impossible CROMPTON, J., said, with reference to the Railway to divest himself of that knowledge, and to say that and Canal Traffic Act, that two matters appeared “not insured” meant nothing, as it would be to forget to have called for the interference of the Legis

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