2 B. & B. 101. And, generally an account is not stated unless some specific sum is agreed upon; therefore a letter asking the plaintiff "to hold the defendant's cheque till Monday, when I will send the amount," the amount of the cheque being unknown, will not support this claim. Lane v. Hill, 18 Q. B. 252; 21 L. J., Q. B. 318. If it appear that the account is stated of a debt due from a third person to the plaintiff, which defendant promised to pay without any consideration, this is a defence. French v. French, 2 M. & Gr. 644; Wilson v. Marshall, I. R., 2 C. L. 356, Ex. Ch. So, where the defendant gave a written promise, to pay a debt due from her deceased husband, to the plaintiff's deceased husband with interest, this was held no evidence on a common count for interest, or on an account stated; for the debt was not due from the defendant. Petch v. Lyon, 9 Q. B. 147. A promissory note was found among the testator's papers, upon which the executors promised to pay it, but it afterwards appeared that it was intended as a legacy, and was not in payment of a debt: held not evidence of an account stated with the payee. Gough v. Findon, 7 Exch. 48; 21 L. J., Ex. 58. A written guarantee by one of several partners without the authority of the others, and a letter written by their clerk explaining it, also without the authority of all, are not evidence of an account stated by the firm. Brettel v. Williams, 4 Exch. 623. It is sufficient to prove the account stated without giving evidence of the several items constituting the account: Bartlett v. Emery, 1 T. R. 42, n. ; and proof of the admission of a single item is sufficient. Highmore v. Primrose, 5 M. & S. 65.

Where a partnership has been dissolved and a balance struck, it may be recovered under this claim even as between partners; Foster v. Allanson, 2 T. R. 479; Brierly v. Cripps, 7 C. & P. 709; Wilson v. Cutting, 10 Bing. 436; and the action is then maintainable without any express promise to pay. Wray v. Milestone, 5 M. & W. 21. But it will only lie on a final balance of the partnership accounts, and not during the continuance of the partnership. Fromont v. Coupland, 2 Bing. 170; Goddard v. Hodges, 1 Cr. & M. 37; Carr v. Smith, 5 Q. B. 128. If an account were stated of the balance due on a deed or bond, this action did not lie, for it continued to be a specialty debt. Middleditch v. Ellis, 2 Exch. 623.

The plaintiff may recover, though the account was, in fact, stated by the defendant with the plaintiff's wife; but not on an account stated by the wife of the defendant; Styart v. Rowland, B. N. P. 129; unless she is proved to An acknowledgment in a be the defendant's agent in the transaction. casual conversation with a stranger, not shown to be the agent of the plaintiff, is not sufficient. Breckon v. Smith, 1 Ad. & E. 488. Where there were accounts between A. and B., and C. became a partner with B., and dealings continued between the partners and A., who afterwards settled an account with B. and C., wherein was included the money due from A. to B. alone, Ld. Kenyon held that the whole might be given in evidence in an action by B. and Č. as on an account stated. Moore v. Hill, Peake Ev., 5th ed., 253; see Gough v. Davies, 4 Price, 214; David v. Ellice, 5 B. & C. 196. The debt on which the account is founded may be an equitable one; thus, where a trustee holds money in trust for the plaintiff, and states an account with him and acknowledges himself a debtor for the amount, he is liable on this claim; per Crompton, J., Howard v. Brownhill, 23 L. J., Q. B. 23, citing Roper v. Holland, 3 Ad. & E. 99. An account stated was formerly considered conclusive, but errors in it may now be corrected; per Ld. Mansfield, C. J., Trueman v. Hurst, 1 T. R. 42; Dails v. Lloyd, 12 Q. B. 531. If the defendant accounts with the plaintiff in a particular character, he will be taken to have admitted that character. Peacock v. Harris, 10 East, 104.

A promissory note, if not properly stamped, cannot be given in evidence

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as an admission of an account stated; Green v. Davies, 4 B. & C. 235 ; but an unstamped foreign bill of exchange drawn abroad, which has not been presented for payment, or indorsed or negotiated in the United Kingdom, can so be used. Griffin v. Weatherby, L. R., 3 Q. B. 753. A note, payable on a contingency, is not evidence of an account stated. Morgan v. Jones, 1 C. & J. 162. See further on the admissibility of bills or notes to prove an account stated, ante, pp. 335, 341, 355, 359, 378.

The account must be stated before the commencement of the action; and where a defendant, after action brought, had offered a cognovit, it was held insufficient evidence to support the count. Spencer v. Parry, 3 Ad. & E. 331; Allen v. Cook, 2 Dowl. 546.

Where the plaintiff relies on an account stated on one day, the defendant cannot prove, without pleading payment or set-off, a subsequent accounting including fresh items, by which the balance was turned against the plaintiff. Fidgett v. Penny, 1 C. M. & R. 108. But, if the second accounting was a mere correction of the first, it would be admissible. See Thomas v. Hawkes, 8 M. & W. 140.

Where accounts are submitted to an arbitrator, his award cannot be given in evidence as an account stated. Bates v. Townley, 2 Exch. 152, overruling Keen v. Batshore, 1 Esp. 194. But, where an incoming tenant agrees to take fixtures at a valuation to be made by brokers, and after it has been made, the tenant enters, the value so ascertained may be recovered on such a claim. Salmon v. Watson, 4 B. Moore, 73.

An infant cannot state a valid account; Trueman v. Hurst, 1 T. R. 40 ; but formerly it was good if ratified after full age and before action. Williams v. Moor, 11 M. & W. 256. The Infants' Relief Act, 1874 (37 & 38 Vict. c. 62, post, p. 600), s. 1, however, makes all accounts stated with infants absolutely void, and they are therefore now incapable of ratification; see also sect. 2. No account can be stated with the agent of a lunatic, so as to bind the lunatic; nor can a lunatic state one. Tarbuck v. Bispham, 2 M. & W. 2.

ACTIONS AGAINST CARRIERS.

Carriers may be of goods or of persons, or of both; and they may be carriers by land or by sea; or of dead or of live stock. The obligations are not the same in all these cases.

Common Carriers.

The obligation or liability of owners and masters of British seagoing ships has been already noticed under a previous head, p. 425, et seq., especially with reference to the Merchant Shipping Acts, 1854, 1862.

The obligations of carriers by land are regulated in some respects by the Carriers' Act, 11 Geo. 4 & 1 Will. 4, c. 68, which relates to their liability for loss of goods. Canal and railway companies are subject to the regulations of the Railway and Canal Traffic Act, 1854, 17 & 18 Vict. c. 31, and the Regulation of Railways Act, 1873, 36 & 37 Vict. c. 48, both in respect of goods and passenger traffic, as well as to the acts relating to carriers in general, so far as they are applicable. Railway Companies are further regulated by the Regulation of Railways Act, 1868, 31 & 32 Vict.

c. 119.

The Railway and Canal Traffic Act, 1854, professes only to regulate the obligations of companies as carriers on their respective rails or canals, and does not apply to other carriers using such rails or canals. Hence the obligation of these latter carriers must depend on the general law of carriers. It is presumed that carriers by inland waters are within the Land Carriers Act, 11 Geo. 4 & 1 Will. 4, c. 68; at least there appears to be no other statute specially applicable to inland navigation, except the several local or private acts under which such canals, &c., are established, and except the act 8 & 9 Vict. c. 42, by which canal companies (theretofore empowered only to take tolls) were allowed to become carriers of goods themselves, with power to make reasonable charges to be fixed by the several companies, and subject to the general laws of the realm as to the liability and protection of common carriers.

It may be observed that there is no analogy between the transmission of a telegram and the consignment of goods through a carrier; Playford v. United Kingdom Telegraph Co., L. R., 4 Q. B. 706; Dickson v. Reuter's Telegraph Co., 2 C. P. D. 62 ; 3 C. P. D. 1, C. A. As to letter carriers, vide post, p. 580.

Action for loss of, or injury to, goods.] In an action for loss of, or injury to, goods, the plaintiff will have to prove (if denied): 1. That the defendant is a common carrier: 2. The delivery of the goods for conveyance, and the contract, if special: 3. The loss or injury: 4. The damage.

Action for refusing to carry.] In this action the plaintiff will have to prove, besides the defendant's character as a common carrier, the tender of the goods to the defendant for conveyance, and the refusal of the defendant to accept the goods for that purpose, although the plaintiff was then ready and willing to pay a reasonable reward in that behalf. Vide post, pp. 563, 567. The action is one of tort for refusal to perform a public duty, whereby the plaintiff has sustained special damage.

Who are common carriers.] A common carrier is a person who undertakes to transport from place to place, for hire, the goods of such persons as think fit to employ him. Coach owners are common carriers, as well as owners of carts and waggons carrying for hire. So the owners or masters of vessels, whether engaged in coasting trade or voyages beyond seas. Morse v. Slue,

2 Lev. 69; Nugent v. Smith, 1 C. P. D. 19; reversed on another ground, Id. 423, C. A. But this has been doubted, at any rate, unless the ship is a general ship. Id. 425, per Cockburn, C. J. See also Benett v. Peninsula & Oriental Steam-Boat Co., 6 C. B. 775. So lightermen, Maving v. Todd, 1 Stark. 72; bargemen, Rich v. Kneeland, Cro. Jac. 330; and all persons who openly profess to carry goods between different places by road or water for hire are common carriers. See, however, Liver Alkali Co. v. Johnson, Ex. Ch., post, p. 561. Railway companies may become common carriers (8 & 9 Vict. c. 20, ss. 86, 89). So canal and navigation companies (Id. c. 42, ss. 5, 6). And such companies generally are common carriers, but only as to such things as they publicly profess to carry, or are obliged by their several acts to carry. Johnson v. Midland Ry. Co., 4 Exch. 367. As to carriers of live stock, vide post, pp. 562, 563.

A carter undertaking jobs for special bargains, and not professing to carry generally, is not a common carrier. Brind v. Dale, 2 M. & Rob. 80; Scaife v. Farrant, L. R., 10 Ex. 358, Ex. Ch. Nor is a wharfinger merely as such, though he has been treated as a carrier in some reported cases. See Sidaways v. Todd, 2 Stark. 400, and cases cited 2 Kent Comm. 599, n. Nor is a London cab-driver or a hackney-coachman, plying for passengers, a

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561

common carrier. Ross v. Hill, 2 C. B. 877. In cases like the last, the liability is that of an ordinary hired bailee, which falls far short of that of a common carrier. S. C.; Coggs v. Barnard, 2 Ld. Raym. 909. See post, pp. 566, 576, 577. A ferryman, though bound to carry all comers, is not therefore a common carrier. See Willoughby v. Horridge, 12 C. B. 751; 22 L. J., C. P. 90; Walker v. Jackson, 10 M. & W. 161; contra, 2 Kent. Comm. 599. A barge-owner who lets out his barges to all that come to him, and to only one person for each voyage, each being made under a separate agreement, the customer fixing the termini in each case, incurs the responsibilities of a common carrier, with respect to the goods he carries. Liver Alkali Co. v. Johnson, L. R., 7 Ex. 267; Ex. Ch., L. R., 9 Ex. 338. The Ex. Ch., however, declined to hold that he was a common carrier so as to be bound to carry all goods tendered him for carriage; and Brett, J., held that neither the defendant nor any other shipowner who carried goods in his ship, was a common carrier. See further as to carriers by ship, Nugent v. Smith, 1 C. P. D. 423, C. A. As to the implied warranty that the ship is seaworthy, ride ante, p. 427.

The common law liability and implied contract of a common carrier.] A common carrier is bound, at common law, to receive and carry all goods reasonably offered to him, and for which the person bringing the goods, is ready and willing, and offers to pay reasonable hire and reward. Pickford v. Gd. Junction Ry. Co., 8 M. & W. 372; Garton v. Bristol & Exeter Ry. Co., 1 B. & S. 112; 30 L. J., Q. B. 273. He is, in the absence of any special contract, bound to deliver within a time that is reasonable, having regard to all the circumstances of the case; Taylor v. Gt. N. Ry. Co., L. R., 1 C. P. 385; Donohoe v. L. & N. W. Ry. Co., I. R., 1 Cl. 304, Ex.; but he is not responsible for the consequences of delay, arising from causes beyond his own control. Taylor v. Gt. N. Ry. Co., supra; and see Raphael v. Pickford, 5 M. & Gr. 551. He is bound to carry by the route which he professes to be his route, and must use reasonable diligence in delivering the goods, having reference to the means at his disposal for forwarding them; and he is not justified in delaying the delivery, by adopting a particular mode of forwarding the goods, merely because that is the mode usually adopted. Hales v. L. & N. W. Ry. Co., 4 B. & S. 66; 32 L. J., Q. B. 292. But provided he carry by a reasonable and usual route, he is not bound to carry by the shortest route, even though empowered by statute to charge a mileage rate for carriage. Myers v. L. & S. W. Ry. Co., L. R., 5 C. P. 1. If the road is obstructed by snow, he is not bound to use extraordinary means, involving additional expense, for accelerating the conveyance of cattle or goods, though the delay may be prejudicial to the goods or their owner, and though, by extra exertions the passengers have been forwarded. Briddon v. Gt. N. Ry. Co., 28 L. J., Ex. 51. He is also an insurer of the goods against all accidents, except the act of God, or the King's enemies; Forward v. Pittard, 1 T. R. 27; and whether the loss occurs by accident, robbery, violence, or the negligence of third persons. Trent Navigation v. Wood, 4 Doug. 287; 3 Esp. 127. Act of God, means not merely an accidental circumstance, but something overwhelming; Oakley v. Portsmouth, &c. Steam Packet Co., 11 Exch. 623; 25 L. J., Ex. 101, per Martin, B.; which, "could not happen by the intervention of man, as storms, lightning, and tempests;" Forward v. Pittard, 1 T. R. 33, per cur.; and which "could not have been prevented by any amount of foresight and pains and care, reasonably to be expected from" the carrier. Nugent v. Smith, 1 C. P. D. 441, 444, per James, L.J. See also Nichols v. Marsland, L. R., 10 Ex. 255; 2 Ex. D. 1, C. A.; Nitrophosphate, &c. Manure Co. v. L. & S. Katherine's Dock Co., 9 Ch. D.

503.

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Common carriers from a place within, to a place without the realm, are subject to the same liabilities, at common law, as a common carrier who carries only within the realm. Crouch v. L. &. N. W. Ry. Co., 14 C. B. 255; 23 L. J., C. P. 73.

As to the effect on the carrier's liability, of fraudulent concealment on the part of the sender of the goods, see post, pp. 579, 580.

In the case of live stock, a carrier is not liable for an injury caused by the inherent vice of the animal; it is sufficient if he provide for its carriage a truck that is reasonably fit for the purpose. Blower v. Gt. W. Ry. Co., L. R., 7 C. P. 655; explaining Carr v. Lancashire & Yorkshire Ry. Co., 7 Exch. 707; 21 L. J., Ex. 263, per Parke, B., cited by Erle, J., in M‘Manus v. Id., 4 H. & N. 347; 28 L. J., Ex. 358; Kendall v. L. & S. W. Ry. Co., L. R., 7 Ex. 373; see also Richardson v. N. E. Ry. Co., L. R., 7 C. P. 75; Gill v. Manchester, &c. Ry. Co., L. R., 8 Q. B. 186. Nor is he liable if the injury done is such as no reasonable precaution could have prevented. Nugent v. Smith, ante, p. 561. So, a carrier is not liable for injury to goods caused by ordinary wear and tear, or chafing during the journey, nor for the natural decay of perishable goods. Story on Bailments, s. 492 a, cited Blower v. Gt. W. Ry. Co., L. R., 7 C. P. 663, 664. See further, post, p. 579. A carrier may limit, generally, his business to certain goods, and is then not obliged to carry other kinds of goods; his obligation in this respect depends upon what he publicly professes to do. Johnson v. Midland Ry. Co., 4. Exch. 367; Orlade v. N. Ë. Ry. Co., 15 C. B. N. S. 680; 26 L. J., C. P. 129.

Any statutory exemption from liability must be pleaded specially. Rules, 1883, O. xix., r. 15, ante, p. 283.

See

Evidence of the contract.] The contract implied from the delivery and acceptance of the goods, to and by the defendant, in his capacity of carrier, is to charge a reasonable reward for the conveyance, and the jury are the judges of this; semb. Ashmole v. Wainwright, 2 Q. B. 837; Harrison v. L. Brighton & S. C. Ry. Co., 2 B. & S. 122; 31 L. J., Q. B. 113; and if the carrier refuses to carry or deliver, except upon payment of an exorbitant charge, the excess, if paid, may be recovered back. S. C. ante, p. 547, Action for money had and received. But it is competent, at common law, to make a previous special bargain in each case, for the rate of charge; and under the Carriers Act, s. 6, post, p. 567, Carr v. Lancashire & Yorkshire Ry. Co., 7 Exch. 707; 21. L. J., Ex. 261.

See

Where the carrier delivers a ticket or other notice to the person from whom he receives the articles, specifying the terms on which he agrees to carry, and the customer assents (or does not dissent), the terms of the notice will establish a special agreement, and will exclude the common law contract, so far as it is varied by those terms; Wyld v. Pickford, 8 M. & W. 443; Gt. N. Ry. Co. v. Morville, 21 L. J., Q. B. 319; Phillips v. Edwards, 3 H. & N. 813; 28 L. J., Ex. 52; Zunz v. S. E. Ry. Co., L. R., 4 Q. B. 539, 544; see also Watkins v. Rymill, 10 Q. B. D. 178, and cases there cited; and such a specific notice is not "a public notice or declaration" within sect. 4 of the Carriers Act, set out post, p. 567. Walker v. York & N. Midland Ry. Co., 2 E. & B. 750; 23 L. J., Q. B. 73. If the customer in such a case declines the terms, and wishes to fix the carrier with the common law liability, he must tender or offer a reasonable compensation, and sue for the refusal to receive the goods, per Parke, B., in Carr v. Lancashire Ry. Co., supra; Garton v. Bristol & Exeter Ry. Co, 1 B. & S. 112; 30 L. J., Q. B. 273. But the mere delivery, to the consignor, of a ticket with conditions printed on the back, of which he has no notice, will not bind him thereby. Henderson v. Stevenson, L. R., 2 H. L. Sc. 470. See further