plaintiff's counsel appearing for their client when he was called, he left the question to the jury, telling them that they were bound to find for the defendant in point of law. And upon their asking him whether, in the event of the defendant's not being liable, any other person was, he told them that was no part of their consideration; but, being willing to give them any information, he added, that he was of opinion that if the plaintiff's demand were just, his proper remedy was by a petition of right to the Crown. On which they found a verdict for the defendant. The rule for granting a new trial was moved for on the ground of misdirection of the Judge upon two points. First, that the defendant had, by his own conduct, made himself personally liable, which question should have been left to the jury. And secondly, that the plaintiff had no remedy against the Crown by a petition of right, on the supposition of which the jury had been induced to give their verdict.

Lord Mansfield Ch. J. declared that the Court did not feel it necessary for them to give any opinion on the second ground. His Lordship said, "that great difference had arisen since the revolution with respect to the expenditure of the public money. Before that period, all the public supplies were given to the king, who, in his individual capacity, contracted for all expenses. He alone had the disposition of the public money; but since that time, the supplies have been appropriated by parliament to particular purposes, and now whoever advances money for the public service trusts to the faith of parliament. That according to the tenor of Lord Somers's argument in the banker's case,* though a petition of right would lie, yet it would probably produce no effect. No benefit was ever derived from it in the banker's case; and parliament was afterwards obliged to provide a particular fund towards the payment of those debts. Whether, however, this alteration in the mode of distributing the supplies had made any difference in the law upon this subject, it was unnecessary to determine; at any rate, if there were a recovery against the Crown, application must be made to parliament, and it would come under the head of supplies for the year." And upon the first point, the Court determined, that the defendant having contracted with the plaintiff merely as the agent of government, was not personally liable. And his lordship added, "The only question before the Court is, whether the defendant be liable or not in this action? if he be, the plaintiff must recover; if not, no consideration respecting the plaintiff's remedy against any other party can induce the Court to make him so. There is no colour to say that he is liable in his character of Commander in Chief. In a late case which was tried before me, where one Savage brought an action against Lord North, as First Lord of the Treasury, in order that he might be reimbursed the

* Vide Vol. II. of State Trials, 59.

expenses which he had incurred in raising a regiment for the service of Government, I held that the action did not lie. So, in another case of Lutterloh against Halsey, which was an action brought against the defendant, who was a commissary, for the supply of forage for the army, and by whom the plaintiff had been employed in that service, the commissary was held not liable. In the present case it was notorious that the defendant did not personally contract; the plaintiff knew at the time that he furnished the stores, that they were for the use of government; and he afterwards made government debtor in his bills. But it has been urged that the defendant made himself liable after the debt was contracted. In my opinion there is no ground for such an argument: the evidence does not warrant it. Then it was objected, that whether the defendant had made himself liable or not, was a question which ought to have been left to the jury to decide. But there was no evidence which was proper for their consideration; for the evidence consisting altogether of written documents and letters, which were not denied, the import of them was matter of law and not of fact."

So, a captain of a troop is not personally liable for meat or forage supplied for his troop during his absence on duty, though ordered by his clerk, unless he actually receives the subsistence money from Government, or makes an absolute promise to be answerable personally. (b) So, in the case of Rice v. Shute, (c) it was determined that the captain of a troop, for which forage was furnished by the orders of a clerk appointed by such captain, is not liable in an action for money had and received for such forage, though present with the troop at the time; it not appearing that he had received any money for this purpose from the paymaster, to whom it is issued by Government, and upon whom the captain is entitled to draw for a certain sum, regulated by the returns of the preceding month. It is, however, reported, that there was another case of Rice v. Everitt, (d) determined at the same time, which was an action brought by the same plaintiff against the colonel of the same regiment, for forage furnished to his own particular troop. The evidence was in general the same as in the other case: but here it appeared that though the defendant had not drawn upon the paymaster of the regiment for the particular sum in demand, and so he could not be said to have received that sum to the plaintiff's use, yet the defendant being indebted to the paymaster on the balance of his own private account with him to the amount of two-thirds of the plaintiff's demand, and being also surety for the paymaster to Government, and the paymaster having absconded in a state of insol

(b) Myrtle v. Beaver, 1 East Rep. 155. (c) 1 Last Rep. 579.

(d) 1 East Rep. 583. n.

vency, the Court refused to set aside a verdict recovered by the plaintiff for the amount of his debt, as the defendant was liable, in some shape or other, for the paymaster's default, and justice had upon the whole been done by the verdict.

So, a magistrate is not liable to pay for plans and estimates for building a county gaol upon an employment by him as one of a committee appointed under an order of sessions. (e)

But where an act of parliament was passed for making a river navigable, giving power to certain commissioners to raise and borrow money upon the tolls of the navigation, the acting commissioners gave orders at their meetings for work to be done in making cuts, &c. The work being completed, the commissioners declined paying, alleging that they had no trust-money left. The plaintiff filed a bill in Chancery against all the acting commissioners: and the Court held, the commissioners, who acted under the trust, to be personally liable to all the contracts, as well those which were made at the meetings when they were not present, as at those when they were. It was also said by the Court that the commissioners, having power to borrow money, ought to take care to be provided: that the workmen who engaged to do the work could not know the state of the fund, nor was it their business to enquire; they gave credit to the commissioners; the plaintiff could not be considered as giving credit to the success of the undertaking. (ƒ)

So, where the commissioners of a navigation act entered into an agreement with an engineer, they were holden to be personally liable.(g)

So, where A. agreed with B. and C. to pave their streets; and they, on behalf of the parish, agreed to pay him; and the work being done according to the agreement, A. filed a bill in Chancery against B. and C., and it was held that they were liable, and must take their remedy over against the rest of the parish. (h)

(e) Tuck v. Ruggles, 5 Esp. Rep. 237. (f) Horsley v. Bell, Ambl. 769. 772. But see Allen v. Waldegrave, 8 Taunt. Rep. 566.

(g) Ibid.

(h) Myriel v. Hymondsold, Hardr.205.

CHAPTER V.

OF CONTRACTS WITH COMMON CARRIERS, WHARFINGERS, AND WAREHOUSEMEN AND THEIR RESPECTIVE LIABILI TIES IN CASE OF LOSS OR DAMAGE OF GOODS ENTRUSTED TO THEIR CARE.

A COMMON carrier is a person who carries goods for hire either by

land or by water; and as such he is, by the common law, responsible for any loss or damage which may happen to them whilst under his care; and he is excused in no case except where the loss or damage happen either from inevitable accident, or, as it is not unfrequently called, the act of God; or, of the king's enemies. (a) Masters and owners of ships and other vessels, proprietors of stage coaches, waggons, &c. come under the denomination of common carriers, and are chargeable on the general custom of the realm, for their faults and miscarriages in the loss or damage of goods entrusted to their care. (6) So, if the proprietor of a stage-coach carries goods as well as passengers for hire, he shall be deemed a common carrier, and liable for the loss of goods, &c. (c) But a hackney-coachman is not a common carrier within the custom of the realm, and cannot be charged with the loss of a passenger's goods, except there be an express agreement, and money paid for the carriage of the goods. (d) So, the postmaster-general doth not come under the denomination of a common carrier: he hath no hire; enters into no contract. The post-office is a branch of revenue, and a branch of police created by act of parliament; the salary annexed to the office of postmaster is for no other consideration than the trouble of executing it. He is therefore not liable for any constructive negligence.(e) It has been observed, (f) that rigorous as this rule may seem, and hard as it may be in one or two particular instances, yet it is

(a) Rol. Abr. 2. 4 Co. 84. 2 Ld. Raym. 918. 1 Term Rep. 27.

(b) 1 Salk. 249. Bac. Abr. tit. Carriers, A.

(c) 2 Show. 128. 1 Salk. 282. pl. 11.; and see 2 Bos. & Pul. 419. 416.

(d) Com. Rep. 25.

(e) Lane v. Cotton, 1 Ld. Raym. 646. Whitfield v. Lord Le Despencer, Cowp. 754.

(f) Vide 1 Salk. 143. 2 Ld. Raym. 918. Jones's Law of Bailments, 105, 4.

95, 6.

founded on the great principle of public policy and convenience, to which all private considerations ought to yield; for the public are obliged to rely on the good conduct of carriers, whose education and morals are usually none of the best, and who might have frequent opportunities of associating with wicked and dishonest persons, while the injured person could seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them, to the infinite injury of commerce, and extreme inconvenience of society. Accordingly, it is laid down in the books, (g) that though a common carrier be robbed of the goods delivered to him, he shall answer for the value of them. And this liability arises at common law from the nature of the engagement or contract which he impliedly enters into when he receives goods to be delivered for hire. He is also considered in the nature of an insurer, and is liable for the loss of goods occasioned by fire, without any negligence in him or his servants. This point was settled in the case of Forward v. Pittard, (h) which was an action of assumpsit against the defendant as a common carrier, for not safely carrying and delivering the plaintiff's goods. A verdict was found for the plaintiff subject to the opinion of the Court of King's Bench on the following case: "The defendant was a common carrier from London to Shaftsbury. That on Thursday the 14th of October, 1784, the plaintiff delivered to him on Weyhill twelve pockets of hops to be carried by him to Andover, and to be by him forwarded to Shaftsbury by his public road waggon, which travels from London through Andover to Shaftsbury. That by the course of travelling, such waggon was not to leave Andover till the Saturday evening following. That in the night of the following day after the delivery of the hops, a fire broke out in a booth at the distance of one hundred yards from the booth in which the defendant had deposited the hops, which burnt for some time with unextinguishable violence, and during that time communicated itself to the said booth in which the defendant had deposited the hops, and entirely consumed them without any actual negligence in the defendant. That the fire was not occasioned by lightning." And the general question in this case was, whether a carrier was liable for the loss of goods occasioned by fire, without any negligence in him or his servants? And upon this question Lord Mansfield Ch. J. delivered the unanimous opinion of the Court, that the carrier was liable. He said: "It appears from all the cases for one hundred years back, that there are events for which the carrier is liable independent of his contract. By the nature of his contract, he is liable for all due care and diligence; and for any negligence he is suable on his contract. But there is a

(g) 1 Inst. 89.a. Mo. 462. 1 Rol. Abr.

2. C.

(h) 1 Term Rep. 27. See also Hyde

v. The Trent and Mersey Navigation. Company, 5 Term Rep. 389.