not bound to allege the custom, yet he must produce sufficient evidence to bring his case within the custom P.

The advantage resulting to the plaintiff from declaring in assumpsit is, that he may join the common counts with the special counts in assumpsit, if he has other causes of action to which they are applicable.. The inconvenience which arises from declaring in assumpsit is, that it lets in a plea of abatement for want of joining all the parties, and it excludes the right to join a count in trover. If the plaintiff is desirous of avoiding this inconvenience, he may either pursue the ancient method of declaring with a recital of the custom, or he may adopt a more general form (omitting the recital of the custom) and allege his gravamen as consisting in a breach of duty arising out of an employment for hire, and may consider that breach of duty as a tortious negligence. Thus declaring in tort, the plaintiff will be permitted to add a count in trover, the defendant will be ousted of his plea in abatement, on the ground of not joining all the parties; and further, if the action is brought against several defendants, and some are found guilty, and others acquitted, the plaintiff will, notwithstanding, be entitled to judgment against those who have been found guilty".

The reader however, should be apprised, that the doctrine laid down in Govett v. Radnidge is opposed by two decisions in the court of Common Pleas, viz. first, by the case of Powell v. Layton, 2 Bos. & Pul. N. R. 365, in which it was determined, that a declaration against a carrier by water, stating "that he had received goods to carry for freight, but that he had not delivered them according to his duty," was founded in contract; and that to a declaration so framed, the defendant might plead that he was only liable jointly with his partners, and that his partners were not sued; and, secondly, by the case of Max v. Roberts, and eight others: there the gravamen was alleged as consisting in a breach of duty as ship-owners arising out of an employment for freight. The plaintiff could not prove all the defendants to be owners; the court were of opinion, that, as the action was founded in contract, it was incumbent on the plaintiff to prove all the defendants to be owners, and having failed in that, he could not recover against those who were proved to be owners. A writ of error was brought, which, having been twice argued in the court of King's Bench, was

p Per Lord Hardwicke, C. J. in Boucher v. Lawson, H. 9 G. 2. B. R. Ca. temp. Hard. 199.

q Mitchell v. Tarbutt, 5 T.R. 649.

r Govett v. Radnidge, B. R. 3 East's R. 62. Cowper v. South, 4 Taunt.

802.

$ 3 N. R. 454.

adjourned to the Exchequer Chamber, as it was supposed that a decision in this case might settle and put at rest the question upon which the contrary judgments had been given; but after argument, the twelve judges were unanimously of opinion, that both the counts of the declaration were so defective in several material respects, (perfectly collateral to the question upon which the determination of the judges was sought that no judgment could be given for the plaintiff upon either of them.

It will be proper to remark here, that trover will not lie against a common carrier for merely losing goods entrusted to his care, without any actual wrong" (17). The proper form of action is the action on the case before mentioned.

Although goods are spoiled by the default of the master of the ship, yet the owners are liable in respect of the freight, if charged on the custom of the realm, or as usually carrying for hire, or upon an express undertaking; but not otherwise. In this case the declaration (if in assumpsit) ought to be against all the owners; but if one or more are not named as defendants, advantage can be taken of the omission by plea in abatement only. The same rule holds with respect to all common carriers who are partners, or who make a joint contract.

A ship was chartered to the commissioners of the navy as an armed vessel, who put on board a commander in the navy

(17) But if the carrier has the goods in his custody at the time when he refuses to deliver them, this will be evidence of a conversion. Salk. 655. So trover will he against a carrier who delivers goods to a wrong person through mistake. Per Kenyon, C. J. Youl v. Harbottle, Peake's N. P. C. 49. The owner of goods on board a vessel directed the captain not to land them on the wharf, against which the vessel was moored, which the captain promised not to do, but afterwards delivered them to the wharfinger, conceiving that the wharfinger had a lien on the goods for wharfage fees; it was holden, that the owner might maintain trover against the captain, who could not prove that any wharfage duty was due.Syeds v. Hay, 4 T. R. 260.

and a king's pilot, the master and crew being appointed and paid by the owners. In consequence of the improper exe cution of an order given by the commander, the chartered ship ran foul of another ship. It was holden, that the owners of the chartered ship were liable for the injury which the other ship sustained; for the chartered ship, notwithstanding it had an officer on board, was, with regard to third persons, to be considered as the ship of the owners.

A notice by a carrier limiting his responsibility to a certain sum', unless goods above that value are entered and paid for accordingly, amounts only to a limitation of damages, after a right to them has accrued by a breach of the contract, and is matter proper to be given in evidence to the jury in reduction of damages, but forms no part or qualification of the original contract for carriage, and, consequently, is not necessary to be shewn to the court in the first instance on the face of the record. Hence, in a case of this kind, a declaration in the usual form is sufficient.

VI. Of Payment of Money into Court.

In an action of assumpsit against a carrier, to recover the loss sustained upon goods which had been put on board the defendant's barge, and which had been spoiled in consequence of the cargo being sunk, the defendant was not allowed to pay the invoice price into court, the rule being, that money cannot be paid into court in cases of uncertain damages.

In assumpsit against a common carrier for losing a trunk belonging to the plaintiff, of the value of 50l. the defendant moved for leave to pay 20l. into court, upon an affidavit, stating that he had published an advertisement that he would not be answerable for any parcels above the value of 201. unless he was paid in proportion to the risk, and that, in the present case, the parcel exceeded that value, yet the defendant had not been paid any thing extra for the carriage. The court of King's Bench permitted the money to be paid into court, observing, that, as the declaration did not state any damage independently of the loss, the plaintiff could not re

b Clarke v. c S. C.

Gray, 6 East's R. 564.

d Fail v. Pickford, 2 Eos. & Pul. 234.

e Tidd's Pract. 2d edit. p. 537.
f Hutton v. Bolton, 1 H. BI.299. n. (b.)

cover beyond the value of the goods; for which reason the declaration did not differ from the common case of goods sold and delivered.

In the preceding case the consequences of paying money into court were not attended to; but, in a subsequent case of Yate v. Willan, 2 East's R. 128, where in assumpsit by the owner of a trunk of the value of 157. which had been lost by thedefendant, the declaration stated a general undertaking by the defendant to carry goods safely for hire, and the defendant paid 57. into court; it was holden that the defendant could not give in evidence a notice "that he would not be responsible for more than 51. for any property lost, unless the same was booked, and paid for according to the value," and that the trunk in question had not been so paid for; because the payment of money into court, upon a count stating a special contract, was an admission of such contract, and narrowed the inquiry to the quantum of damages sustained by the breach thereof (18).

VII. Evidence.

ASSUMPSIT against the defendant (a keelman) as a common carrier, for damage done to goods delivered to his custody for safe carriage. On non assumpsit, the plaintiff proved the damage by water in the hold of the vessel. The judge permitted the defendant to produce evidence to show, that there had not been any negligence on his part. On a motion for a new trial, it was insisted, that the evidence given for the defendant ought not to have been received. The court were of opinion, that this evidence was not admissible; Lee, C. J. observing, that goods delivered to common carriers were to

g Dale v. Hall, B. R. 1 Wils. 281. and MSS.

(18) The authority of this case has been shaken in Clark v. Gray, 6 East's R. 570, in which Lord Ellenborough, delivering the judg ment of the court, said, "that the case of Yate v. Willan, could not be supported in its full extent; for although the payment of money did admit the contract as stated in the declaration, it did not admit a contract incompatible with the restrictive provision as to the amount of damages to be recovered in case of loss."

be kept safely, except against acts of God or king's enemies ; that all other excuses amounted to negligence, and, not being legal excuses, evidence of them was immaterial, as not being any answer to the undertaking.

In an action against the owner of a vessel, for not safely carrying the goods of the plaintiff, the plaintiff called the master of the vessel, whom he had released, as a witness to prove his case; Lord Kenyon, C. J. admitted him, observing, that the master had not any immediate interest; that the record in this cause would not be evidence for or against him in an action brought against him; and although it should appear, that the vessel was lost through the negligence of the witness, yet the present defendant was liable to the plaintiff; consequently, taking it either way, he was a good witness,

A book-keeper to a carrier is a good witness for him, of necessity, without a release1.

h Lay v. Holock, Peake's N. P. C.101. i Spencer v. Goulding, Peake's N. P. C. 129.

DD