racter of the article, and omitting to give notice of it to the plaintiff, so that he might exercise his discretion as to whether he would take it or not, was guilty of a clear breach of duty. The case, [*562 however, upon which I rely is Brass v. Maitland, 6 Ellis & B. 470 (E. C. L. R. vol. 88). There the defendants caused a dangerous substance to be put on board the plaintiff's ship as bleaching powder, without giving him any notice of its dangerous qualities; and by reason of the insufficiency of the casks in which the article was con tained, the contents escaped, and damaged the rest of the cargo: and it was held by Lord Campbell and Wightman, J., that there is an implied undertaking on the part of shippers of goods on board a general ship that they will not deliver to be carried on the voyage packages of a dangerous nature, which those employed on behalf of the shipowner may not on inspection be reasonably expected to know to be of a dangerous nature, without giving notice. The present case falls even within the principle there laid down by Crompton, J., who held the liability to be more limited. Lord Campbell says, in giving the judgment of himself and Wightman, J., that "where the owners of a general ship undertake that they will receive goods and safely carry them and deliver them at the destined port, I am of opinion that the shippers undertake that they will not deliver to be carried in the voyage packages of goods of a dangerous nature, which those employed on behalf of the shipowner may not on inspection be reasonably expected to know to be of a dangerous character, without expressly giving notice that they are of a dangerous character." Crompton, J., says: "Probably an engagement or duty may be implied, that the shipper will use and take due and proper care and diligence not to deliver goods apparently safe but really dangerous, without giving notice thereof; and any want of care in the course of the shipment in not communicating what he ought to communicate, might be negli gence for which he would be liable: but, *where no negligence is alleged, or where the plea negatives any alleged negligence, [*563 I doubt extremely whether any right of action can exist." Here, it is expressly found by the jury that the defendant took no precaution to inform the plaintiff of the dangerous nature of the article in question when he intrusted it to him to carry. It seems to me that the principle on which the decision of Brass v. Maitland is founded, taking it in the narrowest and most limited way, authorizes us to say that the defendant in this case is responsible for the injury which the plaintiff has sustained, and that consequently the verdict must be entered for the latter for the amount of damages assessed by the jury.

WILLES, J.-I am of the same opinion. I apprehend, that, as matter of legal duty, a person who gives another dangerous goods to carry, goods which require more care and caution than ordinary merchandise, and which are likely in the absence of such caution to injure persons handling them, is bound to give notice of their dangerous character to the party employed to carry them, and is liable for the consequences which are likely to ensue from the omission to give such notice. A simple instance of this, is the case of a merchant putting ou board a ship goods which are liable under certain circumstances to spontaneous combustion, or which in the absence of extraordinary care are likely by escaping to damage other parts of the cargo. It is clear C. B. N. S., VOL. XI.—22

that such a person would be liable to an action at the suit of any one who might be injured by his wrongful omission. This doctrine, though more fully considered in the recent case of Brass v. Maitland, 6 Ellis & B. 470 (E. C. L. R. vol. 88), is by no means modern. It was considered in Williams v. The East India Company, 3 East 192. The plaintiff there *failed in the result for want of proof that the *564] goods were put on board without due notice of their dangerous character: but the Court treat the obligation of the shipper as not resting upon contract, but upon the duty to give notice. Lord Ellenborough says: "In order to make the putting on board wrongful, the defendants must be conusant of the dangerous quality of the article put on board; and if, being so, they yet gave no notice, considering the probable danger thereby occasioned to the lives of those on board, it amounts to a species of delinquency in the persons concerned in so putting such dangerous article on board, for which they are criminally liable, and punishable as for a misdemeanor at least." The Court there treat it as a duty which is owed to all persons who may be injured by the neglect to give notice. What is there laid down may not, so far as the supposed criminal responsibility goes, be applicable to a case like this: but it clearly shows that there would be a civil responsibility for the non-performance of this duty by the defendant or his agent. The case of a shipment of dangerous goods may be an extreme case: but it serves to illustrate the general principle, that, wherever a person employs another to carry an article which from its dangerous character requires more than ordinary care, he must give him reasonable notice of the nature of the article, and that, if he fails to do so, he is responsible for the probable consequences of his neglect. The only remaining question, then, here is, whether the injury of which the plaintiff complains was the probable result of the want of notice. The plaintiff was injured whilst carrying this carboy of nitric acid in the way in which goods of the like bulk are ordinarily carried, viz., on the shoulder. If he had known the nature of the article, it is extremely improbable that he would have carried it in that manner. When, therefore, we *565] take into account the fact that the plaintiff was the servant of the carrier, and that the carboy was delivered to him to be carried in the ordinary way, it would seem to be a waste of words to argue that the injury was the result of the defendant's omission to give notice.

KEATING, J.-I am of the same opinion. It is clear that persons sending dangerous articles by a carrier are bound to give notice of their character. I did not understand Mr. Archibald to contend that there was no duty to give such notice, but that the duty was confined to giving notice to the person employed to carry them, and did not extend to his servants. Without defining the extent to which the duty of the defendant ought to go, I entertain no doubt that it goes to the extent of including the case of the present plaintiff. He was the person to whom the defendant caused the article to be delivered for the purpose of being carried. The defendant knew he was employed to carry and deliver it. Rule absolute.

A dealer in drugs who carelessly is liable to one injured by using it as labels a poison as a harmless medicine, such medicine, though it may have

passed through many intermediate sales before reaching the one injured the liability not arising out of any contract or privity, but out of the duty

imposed by the law to avoid acts in their nature dangerous to the lives of others: Thomas v. Winchester, 10 N. Y. (2 Seld.) 397

*POOLEY v. BROWN. Jan. 15.

[*566

It is the duty of the party who receives a foreign bill in England to see that the adhesive stamp is cancelled pursuant to the Stamp Act, 17 & 18 Vict. c. 83, s. 5, under pain of disability to make the instrument available for any purpose.

The plaintiff in April, 1860, purchased of the defendant, without recourse, a bill purporting to be drawn by A. in Brussels upon B. in London. Through the default of both parties, the adhesive stamp was not cancelled at the time of the transfer, pursuant to the 17 & 18 Vict. c. 83, s. 5. In April, 1861, B. became bankrupt, and proof of the bill against his estate was rejected in consequence of the neglect to cancel the stamp, and the name of A. turned out to have been forged. The plaintiff then called upon the defendant to return him the price he paid for the bill, as upon a failure of consideration:

Held, by Erle, C. J., and Keating, J.,-Williams, J., dissenting, that the non-observance of the requirements of the statute disabled the plaintiff from maintaining the action.

And, held, by the whole Court, that, at all events, he was precluded by his own laches from recovering back the price he had paid for the bill.

THIS was an action for money had and received, &c. Plea, never indebted.

The cause was tried before Erle, C. J., at the sittings in London after last Trinity Term. The facts which appeared in evidence were as follows:-In April, 1860, one Lindo brought to the plaintiff eight several bills of exchange, amounting together to the sum of 3581., which purported to be drawn by one Meyer at Brussels upon and accepted by Messrs. Gilmore & Co. in London, and to be endorsed by Meyer in Brussels, and asked him to discount them for the defendant, but without recourse to him. The plaintiff consented to do so, and accordingly gave the defendant a check for 3221. 19s. 4d. The bills had affixed on them adhesive stamps pursuant to the 17 & 18 Vict. c. 83, s. 3,(a) but it did not at the time occur to either of the parties to cancel the stamps, as required by s. 5.(b)

(a) Which enacts that "the duties by this Act granted in respect of bills of exchange drawn out of the United Kingdom shall attach and be payable upon all such bills as shall be paid, endorsed, transferred, or otherwise negotiated within the United Kingdom, wheresoever the same may be payable, and the said duties shall be denoted by adhesive stamps, to be provided by the Commissioners of Inland Revenue for that purpose, and to be affixed to such bills as hereinafter directed."

(b) Which enacts that "the holder of any bill of exchange drawn out of the United Kingdom, and not having a proper adhesive stamp affixed thereon as herein directed, shall, before he shall present the same for payment, or endorse, transfer, or in any manner negotiate such bill, affix thereon a proper adhesive stamp for denoting the duty by this Act charged on such bill; and the person who shall endorse, transfer, or negotiate such bill, shall, before he shall deliver the same out of his hands, custody, or power, cancel the stamp so affixed, by writing thereon his name, or the name of his firm, and the date of the day and year on which he shall so write the same, to the end that such stamp may not be again used for any other purpose; and, if any person shall present for payment, or shall pay, or endorse, transfer, or negotiate any such bill as aforesaid whereon there shall not be such adhesive stamp as aforesaid duly affixed, or if any person who ought as directed by this Act to cancel such stamp in manner aforesaid shall refuse or neglect so to do, such person so offending in any such case shall forfeit the sum of 501.: and no person who shall take or receive from any other person any such bill as aforesaid, either in

*It turned out that the name of Meyer as the drawer and *567] endorser of these bills was forged. Gilmore & Co., the acceptors, having subsequently become bankrupt, the plaintiff, in April, 1861, sought to prove for the amount of the bills against their estate; when it was discovered that the stamps had not been cancelled, and the proof was rejected. The plaintiff then demanded back the sum which he had paid the defendant for the bills, as upon a failure of consideration.

On the part of the defendant, it was objected, that, by reason of the non-compliance with the statute, to which he was himself a party, it was not competent to the plaintiff to use the bills as evidence; that the plaintiff, by reason of his own laches, whereby he had materially altered the position of the defendant, had disabled himself *568] from recovering back the money; and that, as there was no mistake of fact, the money was not recoverable back.

A verdict was taken for the plaintiff for 3227. 19s. 4d., leave being reserved to the defendant to enter a nonsuit, if the Court should be of opinion that the plaintiff was not entitled to maintain the action.

C. Wood, in Michaelmas Term last, accordingly obtained a rule nisi to enter a nonsuit, on the grounds,-" first, that the bills were inadmissible in evidence,-secondly, that the plaintiff was a party to the violation of the statute, and caused his own loss,-thirdly, delay in applying to the defendant for payment,-fourthly, that, if any mistake, it was one of law, and not of fact."

J. Brown (with whom was Hawkins, Q. C.), on a former day in this term, showed cause.-The bills have become valueless in consequence of the defendant's neglect to do that which the statute required of him, and consequently there has been a total failure of consideration. The plaintiff intended to purchase available securities: he has not got what he bargained for. The case somewhat resembles that of Young v. Cole, 3 N. C. 724 (E. C. L. R. vol. 32), 4 Scott 489 (E. C. L. R. vol. 36). There, the plaintiff, a stockbroker, sold for the defendant four Guatemala bonds, and paid him the amount: the bonds, after they had been in the hands of the purchaser two days, were discovered to be not marketable (not bearing a stamp as required by the govern ment of that state); whereupon the plaintiff took them back, and reimbursed the purchaser: and it was held that the plaintiff was entitled to recover from the defendant, in an action for money had and received, the amount he had paid to the defendant. "The plaintiff,” *5691 says Tindal, C. J., *" delivered the money to the defendant on

an understanding that the bonds he had received from the defendant were real Guatemala bonds, such as were saleable on the Stock Exchange. It seems, therefore, that the consideration on which the plaintiff paid his money has failed as completely as if the defendant had contracted to sell foreign gold coin and had handed over counters instead. It is not a question of warranty; but whether the defendant has not delivered something which, though resembling the article contracted to be sold, is of no value." Gompertz v. Bartlett, 2 payment or as security, or by purchase or otherwise, shall be entitled to recorer thereon, or to make the same available for any purpose whatever, unless at the time when he shall so take or receive such bill there shall be such stamp as aforesaid affixed thereon and cancelled in the manner hereby directed."

Ellis & B. 849 (E. C. L. R. vol. 75), is singularly applicable. There, an unstamped bill of exchange, endorsed in blank, purporting to be a foreign bill, was sold, without recourse, by the holder, who was not a party to the bill. It proved to have been drawn in this country, and was therefore unavailable for want of a stamp, and could not be enforced against the parties. The vendor and purchaser at the time of the sale were both alike ignorant of this defect. And it was held that the purchaser was entitled to recover back the price paid from the vendor, on the ground that the article sold as a foreign bill did not answer the description by which it was sold; though it would have been otherwise (the sale being without any warranty, and there being no fraud), had the latent defect been one consistent with the article being a foreign bill. "If," says Lord Campbell, "it really had been a foreign bill, any secret defect would have been at the risk of the purchaser: but this is not a case in which an article answering the description by which it is sold has a secret defect, but one in which the article is not of the kind which was sold. I think, therefore, that the money paid for it may be recovered as paid in mistake of facts "(a) Young v. Cole is there referred to and approved. Gurney. Womersley, 4 Ellis & B. 133 (E. C. L. R. vol. 82), is [*570 also a strong authority in favour of the maintenance of this action. That, like this, was an action for money had and received, with a plea of never indebted. The plaintiffs and defendants were both moneydealers and bill-brokers in London. A. was a customer of the defendants. N. & Co. were a firm of high repute in London. One A. brought to the defendants for discount an acceptance of N. & Co. The defendants took it to the plaintiffs for discount, but refused themselves to endorse or guaranty the bill. The plaintiffs agreed to take it at the ordinary rate of discount, expressly on the credit of N. & Co.'s name, and gave the defendants their check for the amount, and the defendants gave their own check to A. for the amount at a higher rate of discount. After this, several other acceptances of N. & Co. were discounted in the same manner. All these were genuine, and were honoured. A. afterwards brought to the defendants what purported to be a bill drawn on N. & Co. for 30507., endorsed specially to A., and accepted by N. & Co. It was carried by the defendants to the plaintiffs, who agreed to take it. The defendants then procured A. to endorse it in blank, gave it to the plaintiffs, received their check for the proceeds less discount at one rate, and gave A. their own check for the proceeds less discount at a higher rate. It turned out that all the names on this bill, except A.'s own, were forgeries. A. was convicted of the forgery, and became bankrupt. The action was brought to recover the amount given by the plaintiffs for this bill. At the trial it was proved that in London all bill-brokers are also money-dealers, themselves discounting bills with their own money for their customers. Sometimes a bill-broker does not discount a bill himself, but finds a capitalist who will take the bill without recourse to the bill[*571 broker. In such cases, the customer is never introduced to the capitalist, but the capitalist gives his check to the bill-broker for the amount of the bill less the discount agreed on between the bill-broker and capitalist, and the bill-broker gives his check to the customer for the (a) See the cases collected in Addison on Contracts, 2d edit. 152 et seq.