as the plaintiff is not bound to set forth any indorsement, except the first, but may strike out the others, if he adopts this course, the proof will be the same as in the preceding case; but if all or any of the indorsements subsequent to the first are set forth, they must be proved.

The defendant cannot give in evidence a parol agreement entered into when the note was made, that it should be renewed, when it became due; for this would be incorporating with a written contract an incongruous parol condition, which is contrary to first principles.

An indorser on a note, who has received money from the payee to take it up, is a competent witness for the maker in an action against him by the indorsee, to prove that he had satisfied the note, being either liable to the plaintiff on the note, if the action is defeated, or to the defendant for money had and received, if the action succeeds; and his being also liable, in the latter case, to compensate the defendant for the costs incurred in the action, by such non-payment, makes no difference.

In an action by the indorsee against the maker of a promissory note without original consideration, if the payee has become bankrupt, and obtained his certificate subsequently to the date of the note, he is not a competent witness for the defendant, for he is no longer liable to the plaintiff; but would be liable to the defendant, if the latter were obliged by this action to pay the promissory note drawn for his accommodation.

Conclusion. The limits prescribed to this abridgment will not permit the insertion of any more cases under this head, nor indeed is it necessary; for although a promissory note, while it continues in its original shape, does not bear any resemblance to a bill of exchange, yet when it is indorsed, the resemblance begins; for then it is an order by the indorser upon the maker of the note to pay to the indorsee; the indorser is as it were the drawer, the maker of the note the acceptor, and the indorsee the payee.

From this resemblance between a bill of exchange and promissory note, it follows that many of the rules which are applicable to bills of exchange, hold also in the case of promis

sory notes.

CHAP. X.

CARRIERS.

1. Of common Carriers and their Responsibility. II. Of Notices given by common Carriers for the Purpose of limiting their Responsibility, and the

Manner in which such Notices have been construed.

III. Of the Lien of Carriers.

IV. By whom Actions against common Carriers ought to be brought.

V. Of the Declaration.

VI. Of Payment of Money into Court. VII. Evidence.

a

b

I. Of common Carriers and their Responsibility. MASTERS and owners of ships, hoymen, wharfingers, lightermen, barge owners, proprietors of waggons, stage coaches (1) &c. are denominated common carriers; and by

a Morse v. Slue, 2 Lev. 69.

b Maving v. Todd, 1 Starkie's N. P. C. 72.

c Rich v. Kneeland, Cro. Jac. 330. Hob. 17. S. C.

(1) It was ruled by Holt, C. J. in Upshare v. Aidee, B. R. London Sittings, H. 8 W. 3. Comy. 25. that a hackney coachman was not a common carrier within the custom of the realm, and could not be charged for the loss of a passenger's goods, except where there was an express agreement, and money paid for the carriage of the goods. And in Middleton v. Fowler, Salk. 282. there was a like determination by Holt, C. J. at N. P. in regard to stage coachmen, except such as took a distinct price for carriage of goods, as well as persons. But in a late case of Clarke v. Gray, 4 Esp. N. P. C. 177. where an action was brought against the proprietor of a stage coach, to recover the value of a trunk which had

the custom of the realm, that is, by the common law, are bound (2) to receive and carry the goods of the subject for a reasonable hire or reward (3), to take due care of them in their passage, to deliver them safely (4), and in the same cond 1 Roll. Abr. 2. (C) pl. 1.

с

e Per Popham, C. J. Owen, 57.

been lost while the plaintiff was travelling in the defendant's coach, the defendant proved that he had given notice, that he would not be liable for any parcel of above £5 value, unless paid for as such; it was however contended for plaintiff, that this notice applied to the case of goods sent to be carried only, and not to the case of passengers' luggage. But Lord Ellenborough, C. J. said, that it had been decided, that the luggage of passengers came within the exception. So per Chambre, J. 2 Bos. & Pul. 419. "It has been determined, that if a man travel in a stage coach, and take his portmanteau with him, though he has his eye upon the portmanteau, yet the carrier is not absolved from his responsibility, but will be liable if the portmanteau be lost." If a coachman commonly carry goods, and takes money for so doing, he will be in the same case with a common carrier, and is a carrier for that purpose, whether the goods are a passenger's or a stranger's. Nisi Prius opinion of Jones, J. in Lovett v. Hobbs, 2 Show. 127.

(2) An action on the case will lie against a common carrier for refusing to carry goods after an offer of his hire. Jackson v. Rogers, 2 Show. 327.

(3) In an action against a common carrier for losing a box by negligence, a motion was made in arrest of judgment, because a particular sum was not mentioned in the declaration to be paid for hire, but a reasonable reward only; the declaration was holden to be well enough, for, perhaps, there was not any agreement for a sum certain; yet as in such case the carrier may maintain a quantum meruit, he is equally liable, as where there is an express agreement for a particular sum. Bastard v. Bastard, 2 Show. 81. Agreed also in Lovett v. Hobbs, 2 Show. 129.

(4) In Golden v. Manning and another, 2 Bl. Rep. 916. where an action was brought against carriers for not delivering goods within a reasonable time, the question was agitated whether it was the duty of carriers to deliver as well as carry goods. The court declined giving any opinion on the general question, conceiving that under the special circumstances of the case then before them, the defendants were liable, because it appeared that their general course of trade was to deliver goods at the houses to which they were directed, that they received a premium, and kept a servant for that special purpose, and that they must be understood to have contracted to carry the goods in question, on the same terms, and in the same manner, that they carried the goods of other persons. Gould, J. expressed an opinion, that all carriers were bound to

dition as when they were received, or in default thereof to make compensation to the owner for any loss or damage which happens while the goods are in their custody, except such loss or damage as arises from the act of God (5), as storms, tempests, and the like; or of the enemies of the king.

In an action brought against a common carrier by water', charging the defendant with negligence, it was holden to be no defence," that the ship was tight, when the goods were placed on board, but that a rat, by gnawing out the oakum, had made a smali hole through which the water gushed;" on the ground that whatever was not excused by law, was to be deemed a negligence in the carrier, and that he was answerable in all events, except where the goods were damaged by the act of God, or the king's enemies.

So where the proprietors of the Trent navigation, had undertaken to carry goods from Hull to Gainsborough, and the vessel, on board which the goods were placed, drove against an anchor in the river Humber, and sank; it was holden, that the carriers were responsible to the owner of the goods for the damage sustained; although it was proved,

f Dale v. Hall, 1 Wils. 281.

tion v. Wood, E. 25 G. 3. B. R. g Proprietors of the Trent Naviga 3 Esp. N. P. C. 127.

give notice of the arrival of goods to the persons to whom they were consigned, whether bound to deliver or not. In Hyde v. the Trent and Mersey Navigation Company, 5 T. R. 396. the general question, whether a carrier was bound to deliver the goods to the person to whom they are directed was again agitated; Ashhurst, Buller, and Grose, Js., were of opinion that a carrier was so bound; but Kenyon, C. J. appears to have inclined to the contrary opinion. The special circumstances of the case (which see post, p. 381.) rendered it unnecessary for the court to decide the general question.

(5) The plaintiff put goods on board the hoy of the defendant, who was a common carrier; coming through bridge, by a sudden gust of wind the hoy sunk, and the goods were spoiled. Pratt, C. J. held the defendant not answerable; the damage having been occasioned by the act of God. For, though the defendant ought not to have ventured to shoot the bridge, if the general bent of the weather had been tempestuous, yet this being only a sudden gust of wind had entirely varied the case. The plaintiff's counsel having offered some evidence, that if the hoy had been in a better condition it would not have sunk, the Chief Justice said that a carrier was not obliged to have a new carriage for every journey; it was sufficient, if he provided one which, without any extraordinary accident, (such as this was) would probably perform the journey. Amies v. Stephens, Str. 128.

that the accident was occasioned by the negligence of the persons on board a barge in the river, who had not put a buoy out, to mark the place where the anchor lay: the court, observing, that there was a degree of negligence in the master of the vessel also; for his not seeing the buoy ought to have put him upon inquiring more minutely about the anchor; and even if there had not been any actual negligence, yet negligence in law was sufficient.

A common carrier being an insurer in all cases (except the two before mentioned) is responsible for a loss occasioned by accidental fire, provided such loss happens while the goods are remaining in his custody (6) as a common carrier.

As where the goods intrusted to a common carrier were consumed by an accidental fire", communicating to a booth where the goods had been deposited by the carrier in the course of the journey, it was holden, that the carrier was liable, although the jury found, that the goods were consumed without any actual negligence on the part of the carrier.

So where common carriers from A. to B. charged and received for cartage of goods from a warehouse at B. (where they usually unloaded, but which did not belong to them) to the house of the consignee in B., it was holden, they were

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

i Hyde v. Trent and Mersey Navigation, 5 T. R. 389.

(6) In an action by the East India Company against a lighterman, on an undertaking to carry for hire on the river Thames, from the ship to the Company's warehouses, it appeared, that it was the usage of the Company, on the unshipping their goods, to put an officer, called a guardian, in the lighter, who, as soon as the lading is taken in, puts the company's lock on the hatches, and goes with the goods to see them safely delivered at the warehouse. This had been done in the present case, and part of the goods were lost.Raymond, C. J. was of opinion, that this differed from the common case, this not being any trust in the defendant, and the goods were not to be considered as ever having been in his possession, but in the possession of the Company's servant, who had hired the lighter to use himself; he thought, therefore, that the action was not maintainable, and the plaintiffs were non-suited. East India Company v. Pullen, Str. 690. It was observed by Chambre, J. in 2 Bos. & Pul. 419. that the foregoing decision proceeded on the usage of the East India Company, who never intrust the lightermen with their goods, but give the whole charge of the property to the officer, called the guardian.