Page 364, column 2, line 25 from top, for "maternal," read "paternal." 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,” read "C." 8 from top, for "portion," read "proportion." 16 from top, for "Deheld," read "De Held." 28 from top, for "5 Beav. 323," read "229." 26 from top, for "Jagger," read "Jaggar." 9 from bottom, for "4 Dick.," read "2 Dick." 7 from bottom, for "Daws," read "Dors." 3 from bottom, for "16 Ves. 289," read "10 Ves. 300." 28 from top, for "priority," read “privity.” 22 from bottom, for "one of the nephews of the testator," read "a brother of the testator's wife." 27 from top, for "7 Beav. 291," read "288." last word of last line, for "plaintiff," read "defendant." 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." 4 from top, for “1862,” read “August, 1862." 13 from bottom, for "1862," read "1863." last line, for "no breach of it,” read “ a breach." 29 from top, for "G. M. Colt," read "G. N. Colt." 40 from top, for "10th instant," read "10th proximo." 15 from top, for "Este," read "D'Este." 24 from top, for “building,” read “buildings.” 26 from top, for "Murray," read "Murphy." last line, for 66 s. 7," read "57." 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. 27 from bottom, for "905," read "930." 15 from bottom, for "Tyrrell," read "Tyrell." Blake, 4 Ir. Ch. R. 349." 24 from bottom, for "Belchior," read "Belchier," for " 3rd ed.," read "8th ed." 13 of marginal note, for "B," read “C." 25 from bottom, for "274," read "275." 14 from bottom, dele "as." 22 from bottom, for "125," read "124." lines 19 and 35 from top, for "86," read "80." lines 21 and 30 from bottom, for "Gibaud," read "Gibaut." 7 from top, for "Gibaud," read "Gibaut." 10 from top, for "respondents," read "defendants." THE NEW REPORTS. EQUITY. PEEK v. NORTH STAF-structions to the carter of the respondents to call for Present The LORD CHANCELLOR, + The LORD A, subsequent to the Railway and Canal Traffic Act, 1854, proposing to forward certain cases of marbles by B, a railway company, gave the latter notice of his intention. The company thereupon gave A a printed notice, to the effect that they would not be responsible for the loss of, or injury to, any marbles, unless declared and insured according to their value. ▲, thereupon by letter directed the company to forward the cases of marbles NOT INSUred. : "The North Staffordshire Railway hereby give notice that they will receive, forward, and deliver goods solely subject to the conditions hereunder stated," And among the conditions was the following: unless "That the Company shall not be responsible for the loss of, or injury to any marbles . . . . declared and insured according to their value." The marble chimney-pieces were taken to the respondents' station, and remained there whilst some correspondence ensued as to the cost of insurance: ultimately, the appellant's agent was informed that the cost of insurance would be ten per cent. on the declared value. The agent, thereupon, on the 1st of August, wrote a letter to the respondents— "Please to forward the three cases of marble not insured as directed to W. Peek, Esq., to be called for at Camden goods station, London." When the appellant sent for the chimney-pieces it was found that they had received damage from wet, The marbles on their transit were injured by the neg- and that rust from the nails of the packages had ligence of the company's servants. Held, (affirming the decision of the Queen's Bench, and reversing that of the Exchequer Chamber,) that there was no contract between A and the company, that the goods should be carried by the company on the terms that the latter should be absolved from all liability by reason of there being no insurance, and that they carried the marbles subject to the Common Law liabilities of the carrier. This was an appeal from the judgment of the Court of Exchequer Chamber (5 Ell. & Bl. 989), reversing a decision of the Court of Queen's Bench (5 Ell. & Bl. 958). In July, 1857, the appellant was the owner of three marble mantel-pieces, in Staffordshire, and he gave orders to his agent to forward them to London by the respondents' railway. The appellant's agent gave in * The report of this case was unavoidably omitted in the previous number, published on the 8th of August. t See note at foot of page 8. soaked through the cases and discoloured the marble. Under these circumstances the appellant brought an action against the respondents, and the declaration charged them as common carriers with so negligently carrying certain marble chimney-pieces delivered to them by the plaintiff to be carried for the plaintiff, that such marble chimney-pieces were damaged. The respondents pleaded By their fourth plea, "That the goods in the declaration mentioned were delivered and received by the defendants to be carried, after the passing of the Railway and Canal Traffic Act, 1854, and under and subject to a certain special contract in that behalf signed by one George Whittingham, for and on account of one Charles Meigh, who was the person delivering the said goods to the defendants for carriage, whereby it was agreed that the defendants should not be responsible for the loss or injury to marbles, unless declared and insured according to their value, and that the goods in their declaration mentioned were marbles, and that the same were not, nor was any part of the VOL. III. B same, declared or insured by the plaintiff, in the the office, without further proof of bailor's knowledge, manner provided by the said agreement." By their fifth plea, "That the said goods were delivered and received after the passing of this Act, under and subject to a certain just and reasonable condition, made by the defendants, and assented to by the plaintiff, with respect to the receiving, forwarding, and delivering the said goods; that is to say, that the defendants should not, nor would, be responsible for the loss or injury to the marbles, unless declared and insured according to their value." At the trial the learned Judge directed a verdict to be entered for the respondents on the above pleas, but the Court of Queen's Bench (Lord CAMPBELL, C.J., and CROMPTON, J.; dissentiente ERLE, J.,) made a rule absolute to set aside the respondents' verdict, and to enter a verdict for the appellant. On appeal to the Court of Exchequer Chamber, that Court (POLLOCK, C.B., WILLES, J., MARTIN, B., WATSON, B.; dissentientibus WILLIAMS, J., CHANNELL, B.,*) reversed the judgment of the Court of Queen's Bench. The portions of 17 & 18 Vict. c. 31, s. 7, the Railway and Canal Traffic Act, 1854, on which the argument turns are as follows: "Every such company as aforesaid shall be liable for the loss of, or for any injury done to . . . any articles, goods or things in the receiving, forwarding, or delivery thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability; every such notice, condition, or declaration being hereby declared to be null and void. Provided always, that nothing herein contained shall be construed to prevent the said companies from making such conditions . . . . as shall be adjudged by the Court or Judge before whom any question relating thereto shall be tried to be just and reasonable: . . . . Provided also, that no special contract between such company and any other parties respecting the receiving, forwarding, or delivering of any . . . . articles, goods, or things as aforesaid shall be binding upon or affect any such party unless the same be signed by him or by the person delivering such.... articles, goods, or things respectively for carriage." 1 JULY, 1862. Gordon Allan, and Henry James, for the appellant Peek, now examined the state of the law before the passing of the Railway and Canal Traffic Act, 1854. At Common Law a carrier was bound to carry goods upon tender of a proper reward, but he could limit his liability by public notice, if proved to have been brought to the bailor's attention. 11 Geo. 4 & 1 Will. 4, c. 68, ss. 1, 2, 6, freed carriers from liability as to certain articles, upon public notice being affixed in • Mr. Justice Crowder heard the argument, but died before judgment was given. but preserved power of special contract, Wyld v. Pickford, 8 M. & W. 443, 458; Shaw v. York and North Midland Railway Company, 13 Q. B. 347; Carr v. Lancashire and Yorkshire Railway Company, 7 Exch. 707; Walker v. Yorkshire and North Midland Railway Company, 2 Ell. & Bl. 750. The above cases showed that the practical monopoly of railway companies gave them the power of enforcing any conditions they pleased; hence the passing of the Act of 1854. The two provisoes of the 7th section must be read together, or the railway company would still be able to enforce any condition reduced to writing. The effect, therefore, was that all conditions must be reduced to writing and signed by consignor, and must, in opinion of Court or Judge, be just and reasonable, Simons v. Great Western Railway Company, 18 C. B. 805; London and North Western Railway Company, v. Dunham, id. 829; Peek v. North Staffordshire Railway Company, (the present case) loc. cit.; McManus v. Lancashire and Yorkshire Railway Company, 4 H. & N. 327. There was here no contract in writing: the document Holmes v. Mitchell, 7 C. B. (N. s.) 361. The condition attempted to be set up is neither just nor reasonable, McManus v. Lancashire and Yorkshire Railway McCance v. London and North Western Railway Harrison v. London, Brighton, and South Coast Phipson, and Quain, for respondents, the railway company. The Railway and Canal Traffic Act was passed to notice: it was passed in consequence of limit carriers' power of protecting themselves by Carr v. Lancashire and Yorkshire Railway Company, loc. cit., which showed that companies could protect themselves from the consequences of their own negligence. The Act refers to two kinds of conditions, (1st) those imposed by a company and not embodied in a contract, 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 Harrison v. London, Brighton, and South Coast Pickford (8 M. & W. 443), in opposition to the judg ment of the Lord Chief Justice (then Mr. Justice) The letter of the 1st of August constitutes a contract Company (loc. cit.), that notices operated as special in writing, Hutchson v. Bowker, 5 M. & W. 535 ; Goldshede v. Swan, 1 Exch. 154; contracts with those to whom they were brought home; Beal v. South Devon Railway Company, 29 L. J. land Railway Company (loc. cit.); Great Northern Gordon Allan, in reply, cited, Railway Company v. Morville (21 L. J. Q. B. 319), Blackett v. Royal Exchange Assurance Company, Company, (id. 637), Steer v. Great Northern Railway 2 Cr. & J. 244; Yates v. Pym, 6 Taunt. 446. At the conclusion of counsels' arguments, the following questions were submitted to the learned Judges : Company (C. B. 697). It was under these circumstances that the Railway and Canal Traffic Act, 1854, was passed, and he thought that when the previous decisions were looked to, and the language of the statute construed with reference to them, the intention of the Legislature was clear. In Pardington v. South Wales Railway Company (1 H. & N. 392), Bramwell, B.,threw out an opinion, that a condition incorporated in a signed contract was not within the enactment at the beginning of the 7th section, and Erle, C.J., had twice strenuously 1st. Is the condition that the company should not be responsible for injury to the goods (that is, the marbles), unless the same were declared and insured according to their value, a just and reasonable condition within the true intent and meaning of the 17 & 18 Vict. c. 31, s. 7? 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? 14 APRIL, 1863. Western Railway Company (loc. cit.), and he proceeded to answer their Lordships' questions, on the 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 :-* BLACKBURN, J., said the answers to the questions put by their Lordships turned upon the 7th section of the Railway and Canal Traffic Act, 1854; and to interpret that Act he would apply the rules in Heydon's Case (3 Rep. 78). In his opinion the cases decided between 1832 and 1854 established the law that a carrier might by a special notice make a contract limiting his responsibility, even in cases of gross negligence, misconduct, or fraud on the part of his servants; and it seemed to him that the Legislature intervened in the Railway and Canal Traffic These opinions if printed in extenso would occupy a Number of these Reports, and the Editors have deemed it sufficient to give a summary of them here: those who may wish to read them at length can procure them in a Parliamentary Paper, published by Spottiswoode. or injury done to goods occasioned by the neglect or default of the company, or its servants, was void, unless it were such as the Court, as a matter of law, adjudged to be reasonable, and unless also it was contained in a signed contract. He The first question he answered in the negative. held the meaning of the condition to be, that the company should not be liable for any loss or injury accruing in the course of the carriage, even if arising from the neglect or default of their servants; and the company refused to carry at all unless the customer assented to this condition, or agreed to pay whatever they chose to fix as an insurance. In the present case, the company sought to impose 107. per cent. ; no evidence was given to show that such a charge was reasonable, and he thought the onus of proving that it was, lay on the company. He came to the conclusion that the condition was unreasonable. As to the second question, their Lordships had not asked whether the plea was good; he had already indicated his opinion, that it was insufficient, but this was of no consequence as he thought the plea, as pleaded, not proved. There was ample evidence of the authority of the agent who signed the letter of the 1st of August, and the only question was, whether the signing of the letter was the signing of a contract to the effect that the defendants should not be responsible for loss and injury to the marbles. In every case, there was a preliminary question for decision, viz., whether the particular writing in that case was the written record of the contract by which the parties were bound, or whether it was merely one of the facts given in evidence by which the agreement between the parties was to be proved. This was a mixed question | of law and fact to be decided by the Judge, and his decision was open to review on such a rule as that before their Lordships. He thought the parties did not intend to make the letter of the 1st of August the record of their contract; there were other facts in the case to be taken along with the letter, not as explanatory evidence, but as evidence to prove intention as an independent fact; which was admissible because the letter was not the written contract, and could not be admissible if it were the written contract. He, therefore, considered there was not a special contract signed, as he thought the letter which was signed was not a contract; and, therefore, the plaintiff was entitled to a verdict on this plea. As to the third and last question, for the reasons already given, he thought the plaintiff entitled to a verdict on the fifth plea. WILLES, J., was of opinion, that the condition mentioned in the first question was just and reasonable, upon the ground that a person who was asked to incur a risk at the request and for the benefit of another, might reasonably wish to be remunerated or excused. It was fallacious to suppose that because, in the absence of special stipulation, the risk, apart from that of misconduct, fell upon the carrier, therefore it could not properly be made the subject of a distinct charge. There was no proof that the charge made was unreasonable. There was no such point before them. If it had been raised, it would have presented a question in its nature fit for a jury, not for the Court. As to the second question, it was fully discussed in the judgment of the Exchequer Chamber, in which he concurred. He ventured to add, that ordinary experience informed one versed in this subject, that the term "not insured," meant as between carrier and customer, that the goods were at the risk of the customer, because of the customer preferring to take that risk upon himself rather than pay the price of the carrier taking it upon him. He found it as impossible to divest himself of that knowledge, and to say that "not insure?" meant nothing, as it would be to forget the meaning of "colour" or "journies accounts." This point was not touched by the case of McManus v. Lancashire and Yorkshire Railway Company (loc. cit.), where the condition was different. If there was no condition, he thought the plea was proved by the letter; but there being such a condition, he thought that was one of the surrounding circumstances by which the letter might be construed. In the former case, the general contract was negatived, in the latter the fourth plea was proved in terms. The third question was not argued in the Exchequer Chamber. It might be stated thus, viz., the words "special contract," in the fourth proviso of the 7th section of the "Railway and Canal Traffic Act, 1854," meant contract "special" only because of its creating a relation different from that between a common carrier and his employer, so as to include all cases of notice or condition or declaration, stating the terms upon which the business of the company was con ducted, or a contract "special" in a more limited sense, viz., as being different from the terms upon which the company generally carried on business, whether, according to the law applicable to common carriers simpliciter, or that law modified by just and reasonable notice, condition, or declaration. It appeared to him that the latter was the right con struction. It was true that the notice, condition, or declaration, except it be within the Carriers' Act, would only be binding if either expressly or impliedly assented to by the customer, so as to constitute a contract "special in the first sense. But the legislation as to that sort of "special" contract was exhausted before the fourth proviso was reached; and the new language of that proviso pointed, obscurely, it must be admitted, but perceptibly, to a more limited sort of special contract, that is, a contract for the nonce between a customer and the company, specially settling the terms of the particular bargain. If what was contended for by the plaintiff were intended, the word "special" might have been omitted, and the meaning of the proviso would remain the same. He, therefore, could give no meaning to the word "special," unless he read it as specifying individual cases out of the general course of business. He did not discuss the cases, because they were stated so fully by Blackburn, J.; and as they exhibited a diversity of opinion, he was compelled to resort to the words of the statute, and to construe them as well as he could without regard to that element of confusion. He was bound to own that this opinion was at variance with the judgment in McManus v. The Lancashire and Yorkshire Railway Company (loc. cit.), in which he then concurred, but which he was now unable to uphold. CROMPTON, J., said, with reference to the Railway and Canal Traffic Act, that two matters appeared to have called for the interference of the Legis |