tractors, stage-coach proprietors, and other common carriers, by due diligence, to protect themselves against losses arising from their legal responsibility, and the difficulty of fixing parties with knowledge of notices published by such mail contractors, stagecoach proprietors, and other common carriers, with the intent to limit such responsibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses'-it is enacted (s. 1)" That, from and after the passing of this act, no mail contractor, stage-coach proprietor, or other common carrier by land for hire shall be liable for the loss of or injury to any article or articles or property of the descriptions following; that is to say, gold or silver coin of this realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time-pieces of any description, trinkets, bills, notes of the Governor and Company of the Banks of England, Scotland, and Ireland respectively, or of any other Bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign stamps, maps, writings, title-deeds, paintings, en gravings, pictures, gold or silver plate or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs, or lace, or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire or to accompany the person of any passenger in any mail or stage-coach or other public conveyance, when the value of such article or articles or property aforesaid contained in such parcel or package shall exceed the sum of 107., unless, at the time of the delivery thereof at the office, warehouse, or receivinghouse of such mail contractor, stage-coach proprietor, or other common carrier, or to his, her, or their book-keeper, coachman, or other servant, for the purpose of being carried or of accompanying the person of any passenger as aforesaid, the value and nature of such article or articles or property shall have been declared by the person or persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same be accepted by the person receiving such parcel or package." 1827. BROOKE บ. PICKWICK. 1827. Monday, May 28th. It seems that, in the case of cattle taken damage feazant, the owner is not precluded from tendering amends whilst they remain in the custody of the distrainor; at all events, not where the latter intimates an intention of sending them to a public pound. BROWNE v. POWELL. THIS was an action of replevin for seizing and taking certain sheep of the plaintiff. The defendant avowed that the sheep were damage feazant in his close. Among other pleas in bar, the plaintiff pleaded a tender of amends before the impounding; whereupon issue was joined. The cause was tried before Mr. Serjeant Bosanquet, at the last Assizes at Hereford, when the following facts appeared in evidence: The sheep in question having strayed from the plaintiff's close to that of the avowant, the latter distrained them and placed them in an outhouse. The plaintiff's son went to the avowant's house to obtain the release of the sheep, where he saw the wife of the avowant, with whom he had before treated upon similar occasions; and upon his asking her what amends she required, she said 23s. if they did not impound the sheep, and 25s. if they took them to the public pound at Leominster. The plaintiff's son then tendered her half-a-crown, which she refused to receive. On the part of the avowant, it was contended, that the tender to the wife was not a sufficient tender; and that the placing the sheep in the outhouse was an impounding, and consequently that the tender (if sufficient) came too late. The learned Serjeant, however, thought otherwise, and a verdict was taken for the plaintiff upon that issue, the Jury being discharged on the others. Mr. Serjeant Wilde, on a former day in this Term, obtained a rule nisi that this verdict might be set aside. Mr. Serjeant Spankie was now about to shew cause, but the Court called upon Mr. Serjeant Wilde to support his rule.-There was no evidence to shew that the wife was authorized to receive a tender. In Pilkington's case (a), a tender of amends to a bailiff was held to be insufficient. The mere fact of the avowant's wife having once before acted for her husband in a similar matter, will not conclude the plaintiff. At all events, the tender was too late, the sheep being already legally impounded. The avowant was not bound to take them to the public pound; any convenient place may be employed for the purpose of securing a distress, even on the spot where the distress is made (b). Lord Chief Justice BEST.-Two objections have been raised to the plaintiff's right to recover in this case-first, that the tender of amends proved to have been made when the sheep were distrained, was not made to an agent duly authorized to receive it-secondly, that the tender was not made until after the sheep were impounded. I The first objection is answered by the evidence, which shews satisfactorily that the wife was the authorized agent of her husband. She had before acted for him in transactions of the like nature with the plaintiff, and on those occasions her acts had been confirmed by the avowant. therefore think she was his agent likewise upon this occasion. I perfectly agree with the doctrine of Pilkington's case; for, a person may authorize a servant to distrain, though he would not entrust him to receive amends. The second question is, whether the tender of amends was made before or after the sheep were impounded. If once the distress be impounded, it is clear that a tender of amends would be too late. The declarations of the wife on this subject are receivable, inasmuch as they were made in a matter in which she acted as the agent of the avowant. These declarations clearly shew that the sheep were not (a) 5 Rep. 76 a; Cro. Eliz. 813. (b) Com. Dig. tit. “Distress,” (D.); Co. Litt. 47 b; Fitz. Nat. 1827. BROWNE บ. POWELL. 1827. BROWNE v. POWELL. actually impounded at the time, but were merely on their way to the pound; for, the plaintiff's son was told that twenty-three shillings would be required for the damage if paid then, but twenty-five if the sheep were taken to Leominster. This proves that they were not then considered as impounded, but were destined for the public pound at Leominster. Independently, however, of that, I am inclined to think that such an impounding as that attempted to be set up would not prevent a tender of amends. The distress should be taken to the pound of the lord of the manor. The distrainor may undoubtedly impound the cattle on the spot where they are taken, but it would be unjust to hold that no tender could be made after such an impounding. The impounding intended must be such as places the distress in the custody of the law, and not merely of the party who makes the distress. I am countenanced in this opinion by Pilkington's case, where it was resolved, that a tender is too late after the cattle are in the custody of the law. When they are in the pound of the lord of the manor, there might be no person to whom a tender could be made. In the present case, however, the sheep were never impounded; they were only on the road to the pound. The rule for setting aside the verdict must therefore be discharged. Mr. Justice BURROUGH (a).—I am clearly of opinion that there was sufficient evidence to shew that the wife was the agent of her husband in this instance, and therefore there is an end of the question of tender. It is equally clear that the sheep were not in the outhouse as in a pound; though it might have been made a pound if the avowant had thought fit. The duty of the distrainor is different in the case of a public and a private pound; in the latter case, he is bound to provide food for the cat (a) Mr. Justice Park was absent on account of illness. tle; in the former, he is only to give notice, and the owner provides it. The declarations of the wife prove that the sheep in question were destined for the public pound. Mr. Justice GASELEE.-The evidence established the agency of the wife, and her declarations shewed that the ultimate destination of the sheep was the pound at Leominster. With regard to the tender, it seems consonant with good sense that a distinction should be taken between the custody of the party and the custody of the law. If a tender could not be made after an impounding in the custody of the distrainor, no tender could ever be made. By a modern statute, the distress may be impounded on the premises where it is taken; but that does not get rid of the old maxim, that the owner shall have a reasonable time for making a tender. When the cattle are in the custody of the law, the situation of the distrainor is altered. As long as they are in the possession of the party a tender may be made. It is not necessary, however, to go the length of deciding that in the present instance; for, it is evident that the avowant did not consider the impounding complete. Rule discharged. 1827. BROWNE บ. POWELL. NEWTON V. COWIE and Another. THIS The declaration contained nine counts-the first was for Monday, May 28th. The proprietor of an engraving cannot maintain an action for piracy upon the 17 Geo. 3, c. 57, unless he has complied with the directions of the 8 Geo. 2, c 13, by engraving thereon his name and the date of publication; but it is not necessary that the proprietor's name, eo nomine, should appear. An engraving, on a reduced scale, of a specification of a new invention enrolled at the Patentoffice, may be the subject of copyright. |