lature; the one that companies, through their monopoly, had imposed harsh and unjust conditions upon individuals who could scarcely be said to have the power of resisting them, which conditions had been made operative by an assent, express or implied, such conditions and assent forming a special contract; the other, that these special contracts had been inferred from parol evidence even in cases where the sender of goods had done all he could to resist, but had been deemed to have entered into a special contract from having sent his goods with a knowledge of the conditions. The Legislature appeared to have provided against the first supposed mischief in the first part of the 7th section, by saying in effect, "any terms or conditions or notices shall have no effect unless they are held reasonable by the Judge or Court;" in other words, "though you may have got the assent of the party, you shall still be liable for any loss occasioned by the neglect of the company or its servants, unless the conditions to which you obtain such assent are held just and reasonable." After the introduction of some intermediate matter, they proceeded to what he thought was a proviso in the previous allowance of conditions if held just and reasonable. They enacted that no special contract respecting the receiving, for warding, and delivering goods, &c., as aforesaid, should be binding, unless signed, &c. By the use of the same words as in the provisions in the earlier part of the section, "receiving, forwarding, or delivering," and by the words "as aforesaid,” the Legislature seemed clearly to be referring and making a proviso to refer to their former enactments. And he construed such proviso as meaning, "although such conditions may be just and reasonable, yet it shall not be left to parol evidence to say what are the terms, nor shall you imply such assent as will make it a special contract, unless it is signed by the party delivering." He concurred, therefore, in the construction put upon this section by the late Lord Chief Justice Jervis in Simmonds v. Great Western Railway Company (loc. cit.), and understanding the condition made by the company in this case to be "we will not carry your goods at all unless you pay us a tenth of their value by way of insurance in addition to the charge for carriage on such a journey, or unless you agree that we are not to be at all responsible whatever negligence we may be guilty of, whether, &c.," he held it to be unjust and unreasonable, and answered the first question in the negative. As to the second question, he thought the fourth plea not proved, not only on the ground that the condition was not just and reasonable, but because there was no such contract signed as that alleged in that plea. He had entered so fully into the consideration of this part of the question in the Court below, that he did not wish to trouble their Lordships with repeating what was already in print. Nothing which had been brought forward on the present occasion had satisfied his mind that the signed order to "forward the goods unin sured" was a contract reduced to writing and signed, by which it appeared that the party agreed to the particular consequences stated in the plea in the case of the non-payment of the insurance. He, therefore, answered the second question in the affirmative, and the same reasons led him to answer the third question also in the affirmative. MARTIN, B., said that in the argument three points had been discussed. First, whether upon the true construction of the 7th section of the Railway and Canal Traffic Act, 1854, a signed assent to the condition was necessary. Secondly, whether the condition itself was just and reasonable. And thirdly, whether the fourth plea had been legally proved. Upon the first point there had been much difference of opinion, and in order to determine the true meaning of the section, it was essential to ascertain what was the law at the time of its enactment. At the time of the passing of the Carriers' Act, notices were in general use. What was their precise operation, whether as creating a limitation upon the Common Law liability by the mere expression of the will of the carrier, stating terms and conditions upon which he did business, and the customer delivering goods to be carried having knowledge of them; or as creating a special contract between them, to which the assent or agreement of the customer is an essential element, had been and remained a matter of doubt and controversy. But it might be stated as certain that these notices operated to a considerable extent to protect carriers against unforeseen losses and misfortune, but did not, however general and extensive in their language, protect against misfeasance or gross negligence. The Carriers' Act contained but few sections, and if the true meaning of the term, "special contract," in the 6th section, was ascertained, it seemed to him that the construction of the 7th section of the Railway and Canal Traffic Act was free from reasonable doubt. Assuming that the carriers' notices before the Carriers' Act operated by creating a special contract, it was clear that the special contract so created was not the special contract contemplated by the 6th section of that Act. The statute provided in express terms wha t should and what should not be the operation of the public notice or declaration by the carriers. He thought the special contract contemplated in the 6th section was an express individual contract entered into between carrier and customer, and not the contract, so to call it, arising from notice and assent, evidenced by delivery of goods to be carried with knowledge of the notice. The term "special contract" might be found applied, and not inappropriately, to such a bailment; but when the statute enacted what the notice might be and its operation, and that any other should be of no avail, but that the special contracts should be wholly unaffected by it, it amounted to his mind to demonstration that the special contract contemplated by the Carriers' Act was a thing different from the implied special contract consequent upon the notice. To hold it to be so would nullify the Act, and render it of no avail; for every sending of goods with knowledge of notice would be said to be a special contract, and within the 6th section. The learned Judge then passed to the 7th section of the Railway and Canal Traffic Act, 1854, and observed that it consisted of an enactment and five provisos. The term "special contract' was not found in the enactment; the words were "notice, condition, or declaration." These, he thought, did not include special contracts, which were left unaffected, except as provided in the fourth proviso. The result was that, in his opinion, both these Acts of Parliament contemplated two things,―viz., the notice, or condition, or declaration, emanating from the carrier himself, of his own mere act and will, and of which the customer had actual or implied knowledge; and special contracts, to which the assent or agreement of both parties was an essential element, and which, by force of the fourth proviso, must be signed by or on behalf of the customer, and therefore must of necessity be in writing. This further observation might be added. If "condition," in the first proviso, meant a condition emanating from the companies themselves of their own mere act and will, it was not unreasonable or contrary to any legal principle to interpose for the protection of the public, and submit to the judgment of the Court or Judge, whether it were just and reasonable. But if it meant special contract properly so called, it would be perfectly novel and contrary to all legal principle to give a Court or Judge any such jurisdiction. Contracts were to be judged of by their legality, according to the rules of law, not by the opinions of Courts or of Judges as to their justness or reasonable ness. In conclusion, the question depended upon the construction of a section in an Act of Parliament; and, amidst the multitude of conflicting cases and opinions, the only safe course was to abide by the language of the Legislature, adopting the construction which ought originally to have been put upon it. The next question which arose was, whether the condition was just and reasonable. And this depended upon what was its legal construction. If it were that the company should not be liable for the actual neglect or default of their servants, it would be directly contrary to the enactment. The cases of Lyon v. Mells (5 East, 428), and Garnett v. Willan (5 B. & A. 57), and other cases, have established that this was not the legal construction of such conditions, and that they were to be read as providing against unforeseen and unexpected losses and injuries, not occasioned by actual neglect or default. And reading the condition in this sense, he thought it just and reasonable, at least he could not say it was unjust or unreasonable, when the plaintiff's agent, having the fullest notice of it, elected to send marbles under it without objection or complaint. He thought the defendants had proved their fifth plea, that the condition there set out might be read in the same sense as the condition itself, and that if in fact the injury to the marble had arisen from actual negligence or misfeasance, it ought to have been new assigned. The above were substantially his answers to their Lordships' first and third questions. As to the second question, he had to assume that he was in error in his construction of the 7th section, that the term "condition" in the first proviso meant the same thing as "special contract" in the fourth: and that to render a condition made by a company of avail to them, it must not only be just and reasonable in the opinion of the Court or Judge, but must be embodied in a writing, signed by or on behalf of the customer. And, assuming this to be so, he thought the judgment of the Court of Exchequer Chamber right, and that there was evidence of such a contract between the parties, signed so as to satisfy the requirement of the fourth proviso, and that it was evidence of the contract alleged in the fourth plea. The plea averred that the goods were delivered to the defendants after the passing of the Railway and Canal Traffic Act of 1854; and under and subject to a certain special contract, signed. The learned Judge then stated the facts, and said he thought the letter of the 1st of August, and the defendants' conduct upon it, constituted a contract between the parties; that the letter was a proposal, and the defendants' conduct an unconditional accept ance. And, according to Smith v. Neale (2 C. B. & S. 67), the proposal on behalf of the plaintiff being in writing and signed, and unconditionally accepted, satisfied the requirement of the fourth proviso. He therefore thought the averment proved that the goods were to be carried under and subject to a special contract. The next question was-Was there evidence, in writing, of the contract averred in the plea? and he thought that, even assuming the contention that no recourse could be had to previous letters or documents in order to explain the letter of the 1st of August, yet that letter by itself made out the contract averred. But he thought there could be no doubt that where the meaning of a particular expression in a letter was to be determined, the previous correspondence on the subject might be looked at in order to ascertain it. The cases upon the Statute of Frauds were not to the contrary, and reason and common sense pointed it out as one of the best-probably the very best-test of exposition. Applying this test, the meaning of "not insured" was free from cavil or doubt. He answered the first question in the affirmative, and the second and third in the negative. WILLIAMS, J., before answering the questions proposed, examined the 7th section of the Railway and Canal Traffic Act. He said the effect of the first proviso appeared to be, that the first clause of the POLLOCK, C. B., said, that, reading the condition with reference to the 7th section of the Railway and Canal Traffic Act, as limiting the responsibility of the company from accidents or mischief not arising from their neglect or default, applying it to those cases in which it was competent to the company to limit their responsibility, he thought it a most just and reasonable condition. It was quite right that carriers should be responsible for their own negligence and that of their servants; but when they were called upon to pay for damage as insurers only, common fairness seemed to require that they should be paid according to the risk run-that was to say, according to the value of the goods. In answer to the second question, he thought the plaintiff not entitled to have the verdict entered for him upon the fourth plea, because it appeared to him that the plea was proved. Looking at the surrounding circumstances, the letter of the 1st of August was alone sufficient and satisfactory evidence of what the parties meant. But if there were any doubt whether that letter alone would be sufficient, he was of opinion that, coupled with the rest of the correspondence and written communications, the meaning and intention of each party was perfectly clear, and they came to the agreement stated in the fourth plea which was signed in the note of 1st August. In a case where the contract was to be collected from a correspondence, and a letter was written in answer to another, he apprehended, if that were clearly shown, the first might be read to explain the second, although the section did not apply to such conditions as should be adjudged just and reasonable; they were allowed to operate as they did before the statute passed. The cases so fully cited and clearly explained by Blackburn, J., seemed to establish beyond all question that these conditions operated only as special contracts; and if this were so, it remained to inquire whether the conditions thus saved by the earlier proviso did not necessarily fall within the subsequent proviso, which enacted that no special contract should be binding unless it were signed. This has been denied, on a suggestion that the term special contract there employed ought not to be understood as comprising conditions emanating from the carriers themselves, and assented to by the customer, but as applying only to contracts, properly so called, made with particular persons by way of mutual bargain. It had been argued that it was improbable that the Legislature could have meant to invade the ordinary principle of justice which forbade a party to a contract to avoid it by asserting it to be unreasonable. But the words of the proviso seemed to show that the statute meant to include in "special contract" the ordinary transaction of a condition proposed and assented to, for the proviso allowed the sufficiency of a signature by the person delivering the goods for carriage, which appeared to point to the ordinary case of a servant bringing goods to a railway and signing a ticket. Considering also that the proviso only applied to such special contracts as respected the "receiving, forward ing, and delivering" of goods, &c., and that the special contracts, the reasonableness of which, accord-second did not expressly refer to it. From what ing to the plaintiff's contention, the Legislature allows the customer to dispute, were confined to conditions limiting liability as to the "receiving, forwarding, and delivering" of goods; and that these conditions were usually imposed suddenly at the moment of delivery, when reflection on their nature, or repudiation of them, if not impracticable, was at least inconvenient and irksome to the customer or his servant, it did not seem an absurd or harsh piece of legislation to enact that, notwithstanding the company had obtained the requisite signature, it should be open to the customer to contend before a Court that the conditions contained in it could not be regarded as just and reasonable. On these grounds, he thought the true construction of the Act was that put upon it in Simmonds v. The Great Western Railway Company (loc. cit.). It followed, that he must answer the third question in the affirmative. As to the first, he answered it in the affirmative, for the reasons given by Erle, C.J., in his judgment on the second point in Harrison v. The London and Brighton Railway Company (loc. cit.). As to the second question, he thought the plaintiff entitled to have the verdict entered for him on the fourth plea: respecting his opinion thereon, he craved leave to refer their Lordships to the opinion which he had expressed on that point in the Exchequer Chamber:-E. B. & E. 997, 1003. passed in writing between the parties here, the mean ing of the letter of the 1st of August became no longer doubtful, and the fourth plea was proved. In answer to the third question, he thought the plaintiff was not entitled to have the verdict entered for him upon the fifth plea. The Lord Chief Baron proceeded to analyse the 7th section of the Railway and Canal Traffic Act, 1854, and he arrived at the conclusion that the special contract named in the 4th proviso was the same as the special contract of the 6th section of the Carriers' Act, and was a special agreement in any particular case, taking that individual delivery out of the general law as to carriers, and also out of any general condition or declaration made by the company in pursuance of the first proviso in the 7th section. No doubt, technically, a delivery subject to a condition might be considered a contract, and, in one sense, a special contract, but it was not, in his judgment, the sort of special contract meant by the proviso in question. In that Court of Error before their Lordships, he was entitled to say that on that point he differed from the judgment of the Exchequer Chamber in McManus v. Lancashire and Yorkshire Railway Company (loc. cit.), and from the opinion of Jervis, C.J., on which it was founded (18 C. B. 829). With the greatest respect, it appeared to him that the learned Judges who delivered those judgments, omitted to consider that "special contracts," eo nomine, were mentioned and provided for in the first Act, and that the fourth proviso of the 7th section of the second Act merely required such pecial contracts to be in writing. and of special importance to the railway companies, and that their Lordships were much indebted to the learned Judges for the elaborate opinions which they had given in this case. He regretted that those opinions were much at variance with one another. He attributed that difference of opinion to the conflicting decisions believe that there was in the matter itself any very serious difficulty. COCKBURN, C.J., said, in answer to the first ques-upon this subject; but, with deference, he could not tion, that the effect of the condition was to secure immunity to the company from all liability in respect of injury arising from their own negligence, and he was of opinion that such a condition was not just and reasonable. He entered at length into the position of railway companies as carriers, and referred to the series of decisions on the Carriers' Act, culminating in Carr v. Lancashire and Yorkshire Railway Company loc. cit.), where Lord Wensleydale (then Baron Parke) observed, with reference to the inconvenience of implied special contracts, that "that was not matter for the interference of the Court, but must be left to the Legislature, who might, if they pleased, put a stop to this mode which the carriers had adopted of limiting their liability." The Legislature did interfere. Shortly after the decision, the Act was passed on which the question under discussion arose. It could not be doubted that the object of the Legislature in passing it was to prevent these contracts in which liability for negligence was either entirely excluded or made conditional on the payment of a premium. Besides the general reasons, which he examined, for preventing railway companies from too easily divesting themselves of responsibility for negligence, there were two special grounds in this case. In the condition no exception was made in respect of loss or injury arising from felonious acts by the company's servants, which was in direct opposition to the Carriers' Act. Again, a maximum rate of carriage was fixed for railway com panies, which would be stultified by allowing them to make extra charges for insurance. He, therefore, thought the plaintiff entitled to judgment on the fifth plea. As to the fourth plea, he thought the Exchequer Chamber right in holding that the correspondence amounted to a signed contract; but as he thought the fourth proviso of the 7th section of the Railway and Canal Traffic Act was not an independent enactment, but a proviso on the first proviso, both being provisions on the enactment of the section, he held that the plaintiff was entitled to judgment on the plea. The plea would be bad, on the view he took of the section, as not setting forth the condition, and averring it to be just and reasonable; and if it had contained such an averment, the defendants must have been defeated on the fact. For the reasons The question depended entirely, or almost entirely, upon the construction to be given to the 7th section of the Railway and Canal Traffic Act, passed in the year 1854. He concurred entirely with the interpretation put upon that section by Jervis, C.J., in the case of Simmonds v. The Great Western Railway Com pany (loc. cit.). He thought that the true construction of that section might be expressed in a few words. He took it to be equivalent to a simple enactment that no general notice given by a railway company should be valid in law for the purpose of limiting the Common Law liability of the company as carriers. Such Common Law liability may be limited by such conditions as the Court or Judge should determine to be just and reasonable; but with this proviso, that any such conditions so limiting the liability of the company shall be embodied in a special contract in writing between the company and the owner or person delivering the goods to the company, and which contract in writing should be signed by such owner or person. It was true that the section is expressed in a confused manner, but those conclusions, his Lordship thought, were plainly deducible from the cumbrous language which was there employed. The points, therefore, which arose in the present case were, first,-Was the condition on which the company in the present appeal rested its defence a just and reasonable condition? Now, it was important in the first place to observe, that not only did the section of the Act of Parliament to which he had referred, declare that the general conditions should be invalid, so far as they sought to affect the Common Law liability of a railway company as carriers, but the words expressly stated that any condition, having for its object to relieve a company from liability occasioned by the neglect or default of such company, should be null and void. Now, if the present condition were embodied in a contract between the company and the owner of the goods delivered to be carried by that company, the necessary effect of such a contract would be, that it would exempt the company from responsibility for injury, however caused, including therefore gross negligence, and even given, he answered the first question in the negative, fraud or dishonesty on the part of the servants of the and the second and third in the affirmative. 28 JULY, 1863. THE LORD CHANCELLOR* said, the present question was one of great interest to the community at large, company, for the condition is expressed without any limitation or exception. ance at the Wedding of the Princess Alice. - See O'Connell's Case, 11 Cl. & F. 421-5. It will be observed, however, that in the present instance there was a majority of the Law Lords, * During the argument, his Lordship was absent in attend- exclusive of the Lord Chancellor, in favour of the appellant. He was therefore, in the first place, clearly of opinion that the condition insisted upon by the company, even if it had been duly embodied in a special contract between the parties to this appeal, was a condition which it would have been the duty of a Court or Judge to hold to be neither just nor reasonable. The effect of this view of the case would be, that the plaintiff Peek, in the Court below, would be entitled to a verdict upon the fifth plea; for the fifth plea depended entirely upon the averment that the condition was just and reasonable. But it was not only necessary that the condition should be just and reasonable, but it was also necessary that it should be embodied in a special contract in writing signed by the owner of the goods or the person delivering the goods. The second question that arose, although in truth the first point would dispose of the whole case, was whether there existed in the present case any special contract in writing embodying the condition, signed by the owner of the goods, or the person delivering the goods. It was insisted, on behalf of the company, that that requisition of the statute was answered and fulfilled by the letter of the 1st of August, 1857. It was contended that the words which are found in that letter, "not insured," referred to and incorporated the condition. His Lordship was clearly of opinion that there was no foundation for that contention on their part, and he was also of opinion that it was not competent by any description or parol evidence so to interpret the words "not insured," as to embody, or incorporate, the condition itself into the letter, and thereby make it a special contract in writing. Such special contract in writing, signed by the party delivering the goods, must itself, either in terms or by distinct reference, set out or embody the condition in question. But he considered that those words, "not insured," did not refer to the written condition, or afford any ground upon which the written condition could be regarded or incorporated with the letter. In order to embody in the letter any other document or memorandum, or instrument in writing, so far as to make it part of a special contract contained in that letter, the letter must either have set out the writing referred to, or so clearly and definitely referred to the writing, that by force of the reference the writing itself became part of the instrument it referred to. Even if the conditions had been just and reasonable, there would not be found in the present case any special contract in writing sufficient to answer the exigency of the 7th section; and he should therefore have been of opinion that in the action below, the plaintiff Peek was entitled to a verdict on the fifth plea. On every ground, therefore, he humbly submitted to their Lordships that the judgment of the Court of Exchequer Chamber was wrong, and that the plaintiff was entitled to a verdict upon the fourth and fifth pleas in the action. LORD CRANWORTH said, the question to be decided by their Lordships in this appeal was, whether on the issues joined on the fourth and fifth pleas, the verdict ought to have been entered for the plaintiff or the defendants. By the Carriers' Act, 11 Geo. 4 & 1 Will. 4, c. 68, various enactments were made regulating the rights and duties of carriers in reference to goods delivered to them to be carried. And the 6th section provided, that nothing in the Act contained should extend to annul or affect any special contract between the carrier and other parties for the conveyance of goods. Then came the Railway and Canal Traffic Act, 17 & 18 Vict. c. 31, on which the present question arose. By the 7th section of that Act it was enacted, that every railway company should be liable for any injury to any goods in the forwarding thereof occasioned by the neglect or default of the company and their servants, notwithstanding any condition made by the company limiting such liability, every such condition being thereby declared to be void; provided that nothing therein contained should prevent the company from making such conditions as to the forwarding of such goods as the Court should deem reasonable; provided also, that no special contract between the company and the party forwarding the goods should be binding on him, unless it be signed by him, or by the person delivering the goods for carriage. The special contract referred to in the proviso must, he thought, be a contract similar to that which by 11 Geo. 4 & 1 Will. 4, c. 68, s. 6, was excepted from the general operation of that Act, the only difference being, that by the express provision of the latter Act, every such special contract must be signed by the party delivering the goods. The question on the fourth plea was, whether there was such a contract in writing, signed by the plaintiff, or his agent, agreeing that the goods in question should be carried on the terms stated in the plea, i. c., that the company should not be responsible for injury to them, unless declared and insured according to their value. The only document which could be contended to be a document answering the description, was the letter of the 1st of August, 1857. That letter might be taken to be a document signed by the person delivering the goods; but unless it was apparent on the face of it that the person signing it thereby agreed that the company should not be responsible for injury to the goods unless they were insured according to their value, it was not a contract which sustained the plea. He considered it was wholly insufficient for this purpose. It showed that the person sending the goods chose to send them with the incidents attaching by law to the sending of them uninsured; but it did not show that he agreed to a stipulation by the company that they were to be absolved from responsibility by reason of their being so sent, still less that he so |